Sweatt v. Painter Trial Documents, pt 4.

[299]
Henry Doyle, a witness produced by the Respondents, having been by the Court first duly sworn, testified as follows :
Direct examination.
Questions by Mr. Daniel:
Q. State your name.
A. Henry Doyle.
Q. Where do you reside?
A. 1205 Leona Street.
Q. Austin, Texas?
A. Austin, Texas.
Q. Did you reside here in Austin during the months of  February and March of 1947?
A. I did.
Q. Were you acquainted with the opening of a Negro Law School here in Austin on March 10, 1947?
A. Yes, sir.
Q. Did you, prior to March 10, 1947, consider entering [fol. 495 ] that law school?
A. I did.
Q. Did you on the Saturday before March 10, 1947, attend a meeting in Dallas, Texas?
A. I did.
Q. Were other members of the Negro race at that meeting?
Mr. Durham: Your Honor, the relator objects as to "whether a meeting was held, or ten thousand meetings were held, unless it is shown they were held at the request and instance of relator.
The Court: We will see how it develops. Mr. Durham: Will you note our exception? The Court: Well, I haven't ruled on it yet. Mr. Durham: All right, Your Honor.
By Mr. Daniel:
Q. Do you know Maceo Smith?
A. I do.
Q. What position, if any, does he hold with the National Association of Colored People.
Mr. Durham: Your Honor, we object to that. Any con- he has with the National Association for Colored [300] People would not be binding, and any action he did would not be binding upon this relator.
The Court: I believe we will let him pursue it a little further.
A. State the question again.
[fol. 496] By Mr. Daniel:
Q. What position does he hold with the National Association for the Advancement of Colored People?
A. I am not familiar with his title.
Q. Is he an officer in the Association?
A. I am not sure. I know he works with them, but whether he holds an office or not, I don't know.
Mr. Durham: We object to the last statement as not responsive.
The Court: Yes, just answer the questions.
By Mr. Daniel:
Q. Was he at that meeting attended by you in Dallas on the Saturday before March 10, 1947?
A. He was.
Q. Did he make a talk or report of any kind at that meeting in Dallas the Saturday before March 10, 1947?
The Court: I am still holding that in abeyance.
A. Again, will you ask it again, please ?
By Mr. Daniel:
Q. Did—first, let's get this. Maceo Smith, was he at the meeting in Dallas?
A. He was.
Q. Did he make any kind of talk or report there at the meeting?
A. I don't recall.
Q. Were discussions held at the meeting by—
Mr. Durham: Your Honor—
Mr. Daniel: I withdraw it. The Court: I think it would be hearsay.
[fol. 497] By Mr. Daniel:
Q. How long did you stay there at the meeting in Dallas?'
A. I am not sure, approximately two hours. [301]
Q. Were other officers of the National Association for the Advancement of Colored People there?
Mr. Durham: We object to that as assuming that he knows them.
The Court: Unless he knows of his own knowledge. Mr. Durham: We object to it for the reason that he presupposes that he knows, and it is an assumption not based upon any facts.
A. I do not.
By Mr. Daniel:
Q. You do not know. What was the name of the group that held that meeting?
Mr. Durham: We object to that as assuming that he knows. The Court: If he knows.
A. I do not know.
By Mr. Daniel:
Q. Who notified you to come to the meeting?
A. I was notified by circular letter.
Q. From whom?
A. I don't recall the signature.
Q. Was the support of this lawsuit pending here by the National Association for the Advancement of Colored People mentioned at that meeting by anyone? [fol. 498]
Mr. Durham: We object to that.
The Court: Of course, it would not be admissible unless the relator was there, and unless he made it.
Mr. Durham: And unless it was by his authority, and we object to it as not being binding upon the relator, unless he shows that connection.
The Court: That is right.
By Mr. Daniel:
Q. Did you see Heman Marion Sweatt there?
A. I did not.
Q. Did you see Mr. Durham, the man that just made the objection, any time during that meeting?
A. I saw him.[302]
Q. Did he appear before the meeting?
A. He did.
Q. Before that meeting concluded, did you announce to that meeting that you would not enter the law school, Negro Law School on March 10, 1947?
Mr. Durham: We object to that as being irrelevant and immaterial as to what he would do.
The Court: I believe I will let him answer it, in view of our prior rulings of that. We may strike it all later.
By Mr. Daniel:
Q. Did you make such statement to the meeting before it adjourned?
A. I said I was seeking information relative to making up my mind whether or not I would enter the law school. [fol. 499]
Q. Did you announce before the meeting was over that you would not enter the law school the next Monday morning?
A. I did not.
Q. Didn’t you tell me that you did ?
Mr. Durham: We object to him arguing with his own witness.
The Court: That is right.
By Mr. Daniel:
Q. Did you enter the Negro Law School on March 10, 1947?
A. I did not.
Q. That is all.
Mr. Durham: That is all.
The Court: I think the testimony is perhaps not relevant.
Mr. Durham: We ask that it be stricken.
The Court: All right. Mr. Daniel: Note our exception.
(Witness excused.)
Mr. Daniel: That is all of the witnesses we have here now, Your Honor. We have two for in the morning— That is all we know about. [303]
The Court: Then we will recess until nine o'clock in the morning.
(Court was recessed at 4:20 p. m., May 15th, 1947, until 9:00 a. m., May 16, 1947.)
[fol. 500] Morning Session, May 16, 1947, 9:00 a. m.
A. W. Walker, Jr., a witness produced by the respondents, having been by the Court first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Greenhill:
Q. Will you please state your name?
A. A. W. Walker, Jr.
Q. What is your occupation, Judge Walker?
A. Professor of Law at the University of Texas Law School.
Q. Would you please give us your educational background for that teaching?
A. I received my B. A. Degree from the University of Texas in 1921 and my LLB in 1923. I took work at some other schools, graduate work at the Yale Law School, some extra graduate work at Columbia Law School.
Q. Do you belong to any professional societies?
A. Yes, the Association of American Law Schools, American Judicature Society, Texas Bar Association.
Q. Have you been admitted to the practice of law in Texas?
A. Yes.
Q. When were you admitted?
A. I was admitted in 1923.[fol. 501]
Q. State whether or not you have engaged in the Private practice of law?
A. I have.
Q. When did you engage in the practice?
A. I practiced in Dallas, Texas, from 1923 to 1925.
Q. Would you state whether or not you have written any legal articles or books on the subject of law?
A. I have written quite a few articles published in law reviews and some in trade magazines. [304]
Q. Would you please name some of the articles in the law reviews?
A. I wrote a series of articles on the subject of the law of oil and gas which were published in The Texas Law Review, one in the Mississippi Law Review, and various articles also published in the Oil & Gas Journal, and other trade publications.
Q. In what courts are you licensed to practice?
A. The Supreme Court of Texas, the Supreme Court of the United States, the Federal Court for the Northern and Western Districts of Texas.
Q. What subjects have you taught in the law school?
A. That is quite a long list. My teaching has been primarily in the real property fields. I have taught courses in personal property, real property, conveyances, called future interests, oil and gas, domestic relations, wills, administration of estates. [fol. 502]
Q. What courses are you now teaching?
A. At the present time I am teaching oil and gas and a real property seminar.
Q. What system of law instruction do you use in your classes?
A. The case book system.
Q. How long have you been using that system?
A. Since I have been teaching law, which is about 22 years.
Q. Would you please describe briefly the nature of the case book system?
A. The case book system is designed to cause your students to go to the primary sources of law, rather than to secondary sources of law for their information. In other words, they go to the decisions of the courts and study those and be prepared to recite upon them in class, and then to discuss them and the conclusion, with all questions that might be raised in regard to those cases.
Q. In addition to the—is there any additional feature of the system in addition to the recitation and discussion' Is there any other part of the case book system which you use?
A. I don't know that I understand your question.
Q. I mean, do you ever lecture to the class?
A. Oh, yes. I would not call that a part of the case book system, but frequently there is material that you don't think [305] that requires the detailed attention that the case book system necessitates, which you want the students to have, but [fol. 503] where you can cover the situation by simply a lecture covering that particular topic.
Q. I will ask you whether or not in your opinion the case book system is flexible?
A. A very flexible system.
Q. How many students are in your classes, Judge Walker?
A. Well, in my class in oil and gas at the present time, there is something over a hundred students. In my seminar class, it is restricted to fifteen.
Q. How often does an individual student get called upon to recite in a class of a hundred?
A. I would say that in a class of 100, for being called upon to recite on a case, that the average would not be called upon to recite more than one case.
Q. In what period of time?
A. During a course.
Q. Three and a half months?
A. Yes, about 100 cases. Possibly you might cover more than a hundred cases, but you wouldn't cover probably as many as 200 cases.
Q. So, as I understand you, an individual student would be called on—
A. About one and a half cases.
Q. One and a half times in a four and a half months course?
A. That is right. [fol. 504]
Q. Have you taught any smaller classes than 100?
A. Yes. Of course, at the present time I am teaching a seminar class which has fifteen students. In the past, before our law school got so large, in the summer time I suppose we had an attendance of about 150 students on the average, and the classes were relatively small. I have taught some of those classes where there were around 20 students to the class.
Q. And what system of teaching did you use in those classes?
A. The case book system.
Q. I will ask you whether or not you think such system is adaptable to a small class? [306] 20-725
A. Yes, I think it is adaptable to a small class.
Q. Could it be used by a class of ten?
A. I think so, without question.
Q. Would the students in that class receive the same or similar experience and education as those in the class of 100?
A. In my opinion, they would receive better.
Q. Would you please explain that answer ?
A. For the reason that they would be called upon more frequently. They would take a more active part in the discussions. In a class of 100 students, many of them, realizing that under the law of averages their chances of being called upon are rather remote, are inclined not to take an active part in the discussion. There is always a certain group of such students. In a class of ten, all of the students are on their toes all the time, because they realize [fol. 505] they are apt to be called upon next.
Q. Are you familiar with The Texas Law Review?
A. Yes.
Q. Have you been connected with the publication officially?
A. Yes, I was the first student editor in chief, and I have acted as faculty adviser on two different occasions, of the publication of the review.
Q. Do you know the nature of the legal existence of The Texas Law Review?
A. It was organized in cooperation with the Bar of Texas as a corporation, and stock was sold, and it exists as a separate legal entity, a corporation.
Q. Does it have any official connection with the School of Law ?
A. Not officially, no.
Q. Who decides what articles may be published in the Texas Law Review?
A. The faculty adviser.
Q. I will ask you if in the past, and at the present time articles have been accepted by The Texas Law Review which have been written by students other than of the University of Texas, and faculty members of the University of Texas?
A. Yes. I assume that it is considerably more than half of the articles. We make a distinction in the Review in [fol. 506] what we call articles and comments and case notes.[307]
Of the leading articles, more than half of them are prepared by outsiders. As to the comments, largely they have been prepared by our own students, but occasionally comments have been submitted by students of Baylor and S. M. U.
Q. Do you know whether or not Baylor has a law review in connection with its law school?
A. The last information I have on it, they do not have. I feel reasonably sure they have not organized it.
Q. Do you know whether or not the Baylor Law School is an accredited Law School?
A. Yes, it is an accredited law school.
Q. Now, if a member of the Negro Law School should prepare and submit an article to the Texas Law Review, of merit, I would ask you if there is any reason why that should not be published in the Texas Law Review?
Mr. Durham: We object to that as to whether or not there is any reason or not. It is too speculative, and not binding upon this relator. It has no bearing upon any issue.
Q. I will withdraw the question. Do you know of any rule of The Texas Law Review or society which would prohibit its use in the law review?
A. No, there is no such rule.
Q. Did you hear the testimony of Dean Harrison, from the stand? [fol. 507]
A. Yes, I heard it.
Q. Did you hear that portion of his testimony in which be cited with approval some sort of review, or otherwise, which divided law schools into large, medium size, and small?
A. Yes.
Q. Did you hear that portion of his testimony which intimated that the smaller schools would consist of schools wherein the student population was between 50 and 150?
A. Yes.
Q. Did you hear that portion of his testimony that the so-called smaller schools would be inferior in that they would not be in a position to offer equal educational advantages with larger or medium size schools?
A. Yes.
Q. I will ask you whether or not you know of any of the schools, law schools, that have a population of from 50 to 150 in their class rooms? [308]
A. Yes, there are quite a few.
Q. Would you name some of those?
A. I couldn’t give you the figures of their enrollment at the present time. Most of them, of course, as you realize are crowded because of the present situation. Prior to the war, schools like Duke University and North Carolina University had on the average about 100 students. Stanford [fol. 508] University had approximately 150, I believe 148 in 1941—in 1940-41, was their attendance.
Q. Do you know the general reputation of these law schools ?
A. The three schools I have named are outstanding law schools with very high reputations.
Q. Are they at least of equal reputation with the University of Texas?
A. Yes.
Q. Your witness.
Cross-examination.
Questions by Mr. Nabrit:
Q. Professor Walker, in stating the courses which you have taught and which you now teach, you stated that you have taught real property courses primarily?
A. That is correct.
Q. Personal property, conveyances, and one of oil and gas, administration of estates, and similar courses, and that in teaching those courses you used the case method of teaching?
A. That is right.
Q. You also stated that in your class of a hundred you called on each student probably once during the semester?
A. I said I called on them once for a principal case, once and a half, on the average, I would say.
Q. And you stated that you have approximately 100 principal cases during the— [fol. 509]
A. No, it would — a little larger than that, one and a half times, about a hundred and fifty cases, I would say.
Q. Yes. Now, is not one of the attributes of the case system that, as used by professors of law, that most of these principal cases are not covered by calling on the students, [309] but rather by, especially in the larger classes, by having the students volunteer? Don't you have that in your classes?
A. That isn't my system.
Q. Your system is to go by the roll on each principal case?
A. I call on a specific student for a case.
Q. Do you ever call on a student out of order?
A. I don't have a roll. I have a class seating chart with their names, and I skip from one seat to another, and the name of the student is there, so I never call on them in order.
Q. You skip about over your chart?
A. Over the room, yes.
Q. Do you have some number or some method of indicating when you have been in that particular spot last?
A. That is right.
Q. After you have called on that particular student, let's say student "A," for a principal case, let's assume first that "A" gives the case. Then do you throw that case open for discussion, or do you make your comment? Give us what procedure is next. [fol. 510]
A. Of course, a generalization is all you can do here. It depends on the case, largely. Sometimes it may be a relatively simple case, and the student may have handled it satisfactorily, and you may not get any further discussion. Normally, however, the subject will be thrown open for general discussion, and the students will ask questions and raise points and take different viewpoints about the case, and general discussions.
Q. So that if the student has some idea which he wants to present, or some question which he wishes to ask about at case, after this one student has given the case, he has that opportunity?
A. Yes.
Q. I will ask you, in the second place, in your courses, is each student supposed to brief these cases? I put it "supposed" because we understand then he is supposed to brief?
A. That is correct.
Q. So that if he has done that, and if he is called on he may recite from his brief?
A. I try not to let them recite from the brief.
Q. Let's say from his recollection of his work in briefing the case.
A. That is right. [310]
Q. So that we have these 100 students supposedly having [fol. 511] done that spade work before they come, and one is chosen, and all participate?
A. That is right.
Q. Isn't one of the basic virtues of the case system just this, that spade work which all of the students do in preparing the case, and this wide discussion of getting the viewpoints of persons in the class who have a viewpoint, in future interests that may not be true, but over in oil and gas—that may not be true. Let's take personal property or domestic relations. There might be a wide variety of opinion. Isn't that one of the virtues of the case system, that comment and explanation and oral argument about the case?
A. Unquestionably that is one of the virtues, and the larger the class the more essential it is to have that, because, otherwise, you don't know whether your students are understanding the subject.
Q. That is right. Now, if you had one student in a class, obviously that student would have to do his spade work every day or he couldn't come? We agree to that, don't we?
A. He would get a very intensive course.
Q. So that he would get that side of his law training thoroughly examined every day?
A. Yes.
Q. But he would miss the discussion of other class mem-[fol. 512]bers, would he not?
A. He would. I think so, and it would be the province of the instructor to try to supply that by asking questions himself.
Q. But he begins to lose some of the merits of the system itself when he can't have this discussion which goes on in the class?
A. There is a certain value to that.
Q. Yes. Now, let's go from that just a moment to this law review at the University of Texas which has been—do you consider the law review at the University of Texas an extraneous and unimportant feature?
A. If I understand your question, extraneous—do you mean foreign to teaching in the law school?
Q. No, I mean as one of the assets of the University and a part of its reputation, and a part of its value to the student.[311]
A. I think work on the law review is of value to the student.
Q. It is of such recognized value that it is a distinction to the student to state after he has graduated that he was a member of the law review staff, is it not?
A. That is correct.
Q. In the school it is an honor also to be known as one of the law review staff, is it not, for the student?
A. That is correct.
Q. Obviously, from the catalogue, the law review at the [fol. 513] University is incorporated, and I understand you to say that is a private corporation. Nevertheless, in your opinion, to all intents and purposes, is not the law review at the University of Texas under the supervision of the faculty and students at the University, in fact?
A. It is so long as the corporation permits it.
Q. I am assuming that they have not forbidden your supervision. It is to all intents and purposes under the supervision of the faculty and students?
A. That is true of the content that goes into the review; the financial end of it, no.
Q. I am just speaking of the control and operation of the law review as a legal publication, not as to its expenses or things of that sort. It is under the control and supervision of the faculty and students?
A. That is correct, although there is a Board of Editors of outstanding lawyers who are appointed each year.
Q. Yes.
A. By the stockholders.
Q. Yes.
A. Who would have, if they cared to exercise it, complete authority, I assume.
Q. Yes, but isn't it a matter of fact that they don't, they
consider it an honor to be on there, and they leave it to the faculty? [fol. 514]
A. That has been the practice.
Q. There is nothing strange at the University of Texas in operating The Texas Law Review from the way it is operated at other institutions, is there? By that I mean all other institutions, or most of the institutions, the students write the case notes and comments. You have some other comments and you might have some other professors write case notes for articles by members of the faculty and by distinguished lawyers and jurists all over the state; isn't that the way the Texas Law Review operates?[312]
A. That is correct. It is different in that its set up is independent.
Q. I am not talking about the corporation; I am talking about your testimony that most of your leading articles a great many of them, were written by lawyers and distinguished men in the legal profession who were not at the University of Texas, and that those comments were solicited from other persons than the students and faculty. That is not strange in law reviews, is it?
A. No.
Q. It is an accepted practice?
A. That is particularly true of our articles. I don't know that we have solicited any comments from outsiders, although they have been submitted and accepted. They were not solicited.
Q. So that it operates just like the Columbia Law Review where you were, as far as that goes? [fol. 515]
A. I don't know what the policy of the Columbia Law Review on accepting outside articles is, or what is the students' portion.
Q. I don't mean the students' portion. You have just stated the students would keep their portion, but Columbia accepts leading articles?
A. Yes, articles.
Q. So that you did not intend to give the impression that there is something peculiar about the way the Texas Law Review operated in that matter of articles?
A. No, not in regard to articles.
Q. Did you intend to give the impression about case notes?
A. Case notes, I think there is a difference there, and I use the word "think" because I am not qualified to speak on the rules that the law reviews have in that respect, but we do on occasions accept contributions for what we call the students' portion of the review, to the comment and case note section from outside sources. As a matter of fact, we accept them from our own students who are not on the editorial staff of the review. In that respect, I don't know what the policy of other reviews has been, but that has been our policy. We have accepted contributions from students at S. M. U. and students at Baylor.
Q. You spoke of Baylor a moment ago. What is the size of the law school at Baylor? [313]
[fol. 516] A. At the present time?
Q. Yes.
A. They closed down during the war for want of students, and it was only reopened this fall. I am not sure what those figures are. It would be purely a guess.
Q. Would you mind guessing?
A. I would say 150 students.
Mr. Daniel: We object to the guess, Your Honor, because it is so far from the facts.
The Court: Of course, the guess wouldn't help any.
By Mr. Nabrit:
Q. In your opinion, Professor Walker, the law schools with 50 and 100 students, from your knowledge, do any of those law schools possess law reviews?
A. Well, the three schools I named all possess law reviews, Duke and North Carolina and Stanford. I haven't checked to see whether there were others. I did check those three schools.
Q. As a professor of law you are familiar with most of the law reviews, are you not?
A. I am familiar with most of the law reviews, but I wouldn't be familiar, offhand, with the number of students in the various schools.
Q. So you just know of these three schools?
A. I simply checked those, because I happened to know those were small schools, and did have good law reviews. [fol. 517]
Q. Do you know how those law reviews operate, of your own knowledge?
A. No, I don't.
Q. Now, your experience with your seminar of 15 students, you don't teach a seminar in the same way in which you teach your regular classes, do you?
A. No, I don't.
Q. So that it would not illustrate the case system?
A. Well, seminar courses are very flexible.
Q. Yes.
A. On some days we have two hour sessions, if needed,  of the class, and sometimes we use the case book system on a certain topic, and other days we have students contribute their own research and discussion. It varies from class to class, the system we use. [314]
Q. In your opinion, and as a law professor, would you advise a prospective law student to attend a law school where he would be the only student?
A. That depends, of course, on the law school, and the set up.
Q. This law school would be one that was just opening.
A. I would say that he would have an opportunity to get a wonderfully intensive course of study, being one student.
Q. After you said that, what would you advise him, as a law professor?
A. I believe I would.
Q. You would advise him ?[fol. 518]
A. I believe I would. I don't know of any student that would ever have that much care and attention given to his education.
Q. You are assuming the care and attention. You don't think there is any value in having upper classmen in the law school, and you don't think it is of any value that he have discussion with fellow classmates?
A. There are values and values, and you have got a lot of balancing to do. In a large law school the student misses a great deal. There are a great many disadvantages in a large law school, a large class. There are certain advantages. In a small class there are many advantages, and there are certain disadvantages. I would say yon would have a balance there. I don't think that a one-man class would be a very desirable class from the teacher's standpoint, but I think from the student's standpoint he would have a wonderfully intensive course of instruction.
Q. Well, you stated that it would not be advantageous for the teacher, and the teacher is the stimulating influence in a one-man law school, isn't he?
A. Well, a lot would depend on your instructor. He could make it very, very interesting, if the instructor had the ability to do so.
Q. We raise a lot of suppositions.
A. You have to adjust your teaching to the size of the [fol. 519] class. You don't teach a 15 or 20 man class the same way you would teach a 100 or 150, and in some cases, I believe I have had over 200.
Q. To teach a one-man class in a one-man law school would be a lot of adjusting from that, wouldn't it?
A. Yes, it would be a rather marked adjustment. [315]
Redirect examination.
Questions by Mr. Greenhill:
Q. Judge Walker, would you please state whether or not in your opinion the preparation in a small class for class room recitations would be as great or smaller than in a large class?
A. The preparation—are you talking about the students' preparation?
Q. On the part of the student, yes.
A. You mean on the average?
Q. On the average, yes.
A. Yes, I think it would be, because the chances of being called upon are just that much greater.
Q. In other words, they would be greater?
A. There would be more pressure on the student to keep his daily work up.
Q. And if the student realized he was to be called on that day, he would probably bone a little harder, would he not?
A. That would be the natural tendency. [ fol. 520]
Q. Judge Walker, in the case book system, are all of the questions asked by the students?
A. Oh, no, the instructor asks many.
Q. Why does the professor ask questions?
A. For many reasons. One, frequently, just to provoke discussion. Sometimes to feel out the class to see whether or not they understand the case. In other words, the instructor has had a report only from one student. He has 99 other students, He doesn't know just how much they know about that case, and frequently he will sample the class by questioning to bring out additional points, perhaps,  and also to find out how well the class as a whole has understood the discussion.
Q. Did I understand you to say that you had used the case book system in small classes?
A. Yes.
Q. Has that been used satisfactorily?
A. Satisfactorily from my standpoint. As a matter of fact, I would much prefer to teach a small class than a large
Q. And would you use the case book system?
Q. Professor Walker, would you please state whether or [316] not first year law students at the University of Texas are eligible to write for the law review ?
A. No.
Q. Do you know any reason why a Negro law school could [fol. 521] not establish a law review?
A. No.
Q. Judge Walker, I will ask you whether or not you think it would be reasonable to assume that had the relator or some other student who was only one of 12 to 14 inquiries, had enrolled, that there would have been other students in this law class ?
Mr. Durham: We object to his reasoning and assumption, as not being binding, or as not being based upon any hypothesis.
Mr. Greenhill: I want to further qualify that question by saying if there had not been some outside influence to keep students from coming in.
The Court: I think there is no evidence of that, and I think it would be speculative on the part of the witness. He can state the effect of this man enrolling.
By Mr. Greenhill:
Q. Have you noticed enrollments generally in the law schools ?
A. Over the United States?
Q. In Texas?
A. Yes, generally.
Q. Do you have any idea of the number of actual applicants, or the relation that bears to the number of inquiries you have, that is, if you have, say, 14 inquiries, how many of those students would probably attend? [fol. 522]
Mr. Durham: We object to that. We don't mind the witness testifying. We certainly don't want the Assistant Attorney General testifying. We object to it as being leading and suggestive.
The Court: Let's let him answer.
A. I don't know that I could answer that accurately. Normally a student doesn't inquire unless he is interested in enrolling. That is our experience in our Law School. [317]
By Mr. Greenhill:
Q. You would assume if 14 people made inquiry at the law school at least four or five of them would enroll?
Mr. Durham: Your Honor, that is the assumption again.
The Court: I think that is an assumption again.
Mr. Greenhill: That is all.
Recross-examination.
Questions by Mr. Nabrit:
Q. Professor Walker, are you aware of the fact that under the present crowded conditions of law schools and educational institutions that former G. I.'s, that have the benefits under that act, write to a large number of schools asking about the courses offered? Are you aware of that?
A. I have personal knowledge of only one or two instances.
Q. Do you handle enrollment at the University of Texas Law School?
A. No. [fol. 523]
Q. So that you are not in a position to state what the statistical experience is as to the number of inquiries and the number—
A. I am not.
Q. Do you know of a law school in the United States with one student?
A. No, I don't know of any law school like that.
Q. Do you know of a law school in the United States with 10 students?
A. Not at the present time. During the war there were.
Q. During the war was abnormal, too, was it not?
A. That is right.
Q. Now, so far as a student is concerned, Professor Walker, is it not true that if he is to do the assignment of the instructor, he prepares as hard, under the case system, for his particular work as if he were in a class with 600? That is, that is true as far as each student is concerned; is that not true? That is, all he can prepare is what the assignment was, and excess work which he wishes to do, is that not true?
A. That is true as far as preparation of the case is concerned, but—[318]
Q. That is what I mean, just preparation of the cases.
A. In other words, there is a certain amount of work in preparing a case, if that is—
Q. An "A" student does that, if he does the professor's [fol.524] assignment?
A. Assuming he does.
Q. All right. If he doesn't have the incentive to do it, and the instructor doesn't give him the incentive to do it, then he doesn't do it; is that not the fact?
A. Well, assuming all of your points, yes. There are other factors.
Q. I am going to get to the other factors. You are postulating the proposition that the pressure of facing the professor every day with nobody to look around at to take that burden off of him will make him do more work. I am giving you a hypothesis that the discussion of his class mates will provoke viewpoints that he himself did not have the experience and capacity to bring forth. Do you agree that both of those are present in considering the case system of study?
A. I agree to the raising of questions by the students and the discussion. I don't agree that you have to have a large class.
Q. I didn't get to that yet. I am coming to that. Now, let's go to that. What would you suggest from your experience as the ideal size class in law under the case book system or method?
A. That would be a difficult question to answer. It would be less than 25. I think after—my experience has been after you get above 25 your class is getting a little bit unweildy[sic] [fol.525]
Q. Unweildy[sic]. Do you mean that the ability to properly instruct them is declining in inverse proportion as the numbers accelerate or increase?
A. The amount of attention that you can give to the student, and the kind of work he is doing, and you get to the feeling you don't know what the individual students are doing when the class gets large.
Q. Are you saying as the classes at the University of Texas diminishes in quality?
A. I think that is true of a considerable number of students.
Q. Of the 886 out there, what percentage of those? [319]
A. The top ranking students would get a good legal education under almost any circumstances. So you are talking about the bottom ranking students?
A. Not necessarily the bottom, but those below the top, at least.
Q. So that the best—
A. There is a grade in between there.
Q. The best students at the University of Texas Law School are going to get a good legal education, no matter how poor you teach them, or how large the classes get?
A. I am inclined to think that is virtually true.
Q. You can have him.
[fol. 526] Redirect examination.
Questions by Mr. Greenhill:
Q. Judge Walker, these thought provoking questions that counsel is asking you about; I will ask you whether or not it is not often that the professor himself asks those questions?
A. Oh, yes.
Q. That is all.
(Witness excused.)
Dr. Benjamin Floyd Pittenger, a witness produced by the Respondents, having been by the Court first duly sworn, testified as follows:
Direct examination.
Questions by Mr. Greenhill:
Q. Will you please state your name?
A. Benjamin Floyd Pittenger.
A. What is your profession?
A. I am Professor of Educational Administration at the University of Texas.
Q. What is your educational background, Dean Pittenger.
A. Well, I was educated in the public schools in Michigan took my Bachelor's Degree, Bachelor of Arts Degree, 1908 the Michigan State Normal College at Ypsilanti, in 1908. A Master of Arts Degree from the University of [320] Texas in 1912, and my Ph. D. from the University of Chicago in 1916. [fol. 527]
Q. Dean Pittenger, in your class room experience at Ypsilanti and the University of Chicago, would you state whether or not those classes were exclusively white or exclusively colored, or mixed.
A. I recall one Negro in the class which I attended at Ypsilanti and I recall two or three classes in which there were several colored persons at the University of Chicago.
Q. How long have you been in the teaching profession, Dean Pittenger?
A. Well, with the exception of the years spent in college, and two years in the Army, since 1904—since 1902.
Q. Where have you taught ?
A. In the public schools in Michigan, in the University of Illinois, in the University of Minnesota, at the University of Michigan, at the University of Colorado, and, of course, the University of Texas, Teachers College in Colorado. That is all that I recall for the moment.
Q. What positions have you held at the University of Texas?
A. I came as what was then known as adjunct professor in the School of Administration and Education, and after two or three years in that service, after I came back from the Army, I became an associate professor of Education and Administration, and I was then advanced in a year or two to a professorship. In 1926 I became Dean of the School of Education, and I served in that capacity until [fol. 528] February first of this year. I also continued my professorship when I was Dean, and on February first I retired to my professorship.
Q. When did you come to Texas?
A. In 1911, for the first time.
Q. That was after you had received your Bachelor's Degree, is that right?
A. That is right.
Q. So that when you came to Texas from Michigan, would you state whether or not you had an open attitude as to the Negro question at that time, as far as education is concerned ?
A. Well, I think that I could say that I reflected pretty much the attitude that had developed in Michigan in that community, and later in Kansas where I taught for three [321] years at Fairmont College. I forgot to mention that a while ago, preceding my coming to Texas.
Q. Did you teach any colored students in your classes, Dean Pittenger, at any of the places you taught?
A. The only place I recall is the University of Colorado.
Q. Are you a member of any professional societies in education?
A. Yes, sir; I am a member of the American Association of Administrators, which is a branch of the National Educational Association, and a member of the Texas Teachers Association, and a life member of the Texas Association of School Administrators, and during the time I was Dean I was ex-officio member of the Association of Colleges and [ fol. 529] Departments of Education.
Q. Is that a national association?
A. Yes.
Q. Did you hold any office in that organization?
A. I was President of that for three years.
Q. Have you ever held any office in the Texas State Teachers Association?
A. I was Chairman of the Committee on Finance for that organization for the period of probably 12 years, ending about 1936, and I was President of the Association in 1941 and 1942.
Q. Have you had any dealings or association with higher education for Negroes in Texas?
A. Yes, I have had.
Q. What experience have you had?
A. I think my first experience was as a member of the Board of Trustees, a local Board of Trustees of Tillotson College. Right after the war I participated in several school surveys. I do not recall that there were higher institutions involved, however, in the public schools, which would bring one in contact with Negro education. I visited one or two of the Negro colleges in Texas. I recall Bishop College at Marshall, at the instance of the American Medical Association. That was probably 20 years ago. I consulted with the group at Prairie View during the development of [fol. 530] the graduate program of that institution. During the past summer, I was a member of a committee appointed by the Southern Association of Schools and Colleges to visit five, I believe it was, of the Negro colleges in Texas, to consider the continuation or the raising of the[322]accreditment level which those colleges had with the Association.
Q. Is Tillotson College a colored institution?
A. Yes.
Q. What Negro institutions did you visit in your tour for the Southern Association?
A. Tillotson College, Wiley College, at Marshall, Jarvis College, which is in a rural community north of Tyler Texas College, I believe it is caused[sic], at Tyler, and Prairie View.
Q. Now, are you acquainted with any of the leaders of Negro education in Texas?
A. Yes.
Q. Would you name some of those with whom you are familiar?
A. Well, I think my acquaintance probably is—that I know best of all former Principal Banks of Prairie View, I also have known President Rhodes for a number of years. My recollection for names, unfortunately is not very good.
Q. Have you participated in discussions with those men on the subject of education for Negroes in Texas?
A. Yes, I have. I don't recall that I participated in conversations with them as individuals to any great extent, [fol. 531] but in conferences at which they were present, and in which a number of other Negroes were also present.
Q. I will hand you a pamphlet entitled "The Senior Colleges for Negroes in Texas," and ask you to examine it. Did you participate in the preparation of that booklet in any manner ? That is, did you have anything to do with the existence of the book, in the first place?
A. Yes.
Q. What connection did you have with it ?
A. I was Chairman of a committee that was called a Steering Committee of the Biracial Conference on Negro Education, and this committee set up a survey, of which this is the report, and chose the persons who participated in the survey and in making the report.
Q. Who called, or who assembled that group which you have mentioned there?
A. Governor Stevenson. You mean the conference?
Q. Yes, sir. Now, were the members of the conference there of mixed races?
A. Yes, sir.
Q. Would you name some of the people on that committee there ? [323]
A. Well—
Q. And identify them as to white or colored, white or Negro ?
A. Dr. T. D. Brooks, Dean of the Graduate School of Texas A. & M. College, white; Principal W. R. Banks, of [fol. 532] Prairie View, colored; President J. J. Rhoades, of Bishop College at Marshall, colored; Mrs. Joe E. Wessendorf, past President of the Parents-Teachers Association, white; Dr. Thomas W. Currie, of the Austin Theological Seminary, white;—Dr. Currie died shortly after the committee was set up, and became active, and Dr. T. S. Montgomery, head of the Department of Education of Sam Houston took his place, white. Dr. R. P. Hamilton, physician and surgeon in Dallas, was originally appointed. Dr. Hamilton was colored. He requested to be relieved because of his health, and Dr. H. E. Lee, of Houston, took his place, and Mr. Gordon Worley was Secretary of this Committee and was Director of Special Problems for Negro Education at that time.
Q. Did you write the foreword to this booklet?
A. Yes.
Q. I will ask you to state whether or not you have been interested in the development and improvement of Negro education in Texas?
A. Very much.
Q. In your experiences in visiting the Negro colleges, and those colleges at which Negroes and whites attend, have you had the opportunity to observe the educational opportunities and advantages offered by these institutions ?
A. I have.
Q. In your experience as an expert in the field of educa-[fol. 533]tional administration, assuming the facilities of both colleges are equal, is it possible for a Negro to receive an equal education in a separate college?
Mr. Durham: We object to the part of the question "is it possible." We have no objection to him expressing his opinion.
The Court: Yes.
By Mr. Greenhill:
Q. In your opinion, Dean Pittenger?
A. If by equal you do not mean exact duplicate, yes.
Q. It would be substantially equal? [324]
A. That is right.
Q. Assuming otherwise equal facilities or substantially equal facilities, would the mere fact that the college is composed exclusively of colored students, of itself, mean an inequality?
A. With the same interpretation of inequality, it would not, in my judgment.
Q. Now, in your judgment, are there advantages to the Negro in being taught in a separate institution?
A. Yes.
Q. What are they?
A. Well, the reason that I made the statement that I did with respect to equality appears at this point. I think that the educational value of—that the value of an education to a student at any level is determined by the total college situa-[fol. 534] tion in which he carries on his college work. It isn't merely a question of class room teaching and study, or of laboratory activities or of library activities, but I think that a very large part, and an increasing part of the value of education at any level is in the total influence, the influence of the total contact of the student with the institution.
Q. I will ask you whether or not you think the Negro student would have the same opportunity to develop leadership in a mixed institution, or at a separate institution?
A. I think that normally, ordinarily, he would have a better opportunity to develop leadership in a separated institution than in a mixed institution, and I make that statement because the whole life of the institution would then be open to the Negro's participation. My judgement is that particularly in the south, that the Negroes' opportunities in institutions patronized in the great majority by whites would be limited to the class room facilities, and the regular educational activities almost wholly.
Q. Now, Your Honor, I want to ask him the next question simply in rebuttal to testimony developed by the relator. It is our understanding that we did object to this line of testimony, but since it has been put in, we want to ask this question in reply to those statements of relator's witnesses. I will ask you, Dean Pittenger, in your opinion as an expert [fol. 535] in the field of Educational Administration, whether or not you think it would be to the best advantage the State of Texas and of students to continue the policy of segregation in the schools and colleges of Texas? [325]Mr. Durham: Just a minute. Now, Your Honor, they have objected to that form of testimony. I don't want to object to it, if I have got a right to reopen my testimony. I won't object, if I have got a right to tender certain testimony that the Court excluded yesterday.
The Court: Of course, if it is the same, if this is admissible in rebuttal, testimony on your side would be admissible.
Mr. Durham: No objection.
Mr. Greenhill: Mr. Reporter, would you read him the question, please?
(The Reporter read to the witness the last question set out above.)
A. All of the consequences considered, I think so.
Q. Would you please state your reasons for that answer?
A. Part of it was included in the statement I made a moment ago that I believe a part of the value, a great part of the value of higher education, especially in the identification and development of leaders, gives more opportunity for participation in all of the activities of college to the extent that those are restricted to that extent, that essential value of higher education is lost, but my fundamental feeling [fol. 536] about the matter rests in what I conceive to be the effect of the elimination of segregation on the higher level upon segregation upon the lower level. Let me say that my experience as professor of school administration, and my training and my teaching have directed my attention more toward the public school level, the elementary and secondary level of teaching, than toward the higher level.
I function in a higher institution of learning, but my principal interest, and my principal work has been to try to advance and improve public education in Texas, especially in the elementary and secondary levels. So, I have been concerned with the school administration that functions at those levels.
I am unable to see how segregation could be constitutionally maintained below the college level and be unconstitutional at the college level, and so my feeling is that the— my principal fear of the breakdown of segregation on the  higher level is what I conceive to be the breakdown, the influence upon segregation in the lower level. I believe that the — I believe that the development of the public school system in Texas historically was pretty much—was pretty much [326] aided by the early appearance of segregation in this state. To put it definitely, I think that the progress of public education in Texas would have been much more retarded than it is if we had not had segregation. I think that the reasons [fol. 537] that justified, as I say, the segregation in those days, still obtain. The public educational system of Texas is a long way from having reached anything like the national standard as a whole, and we are still in the formative period.
My judgment is that is[sic] segregation were abandoned in the lower level, that it would become as a bonanza to the private white schools of the State, and that it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children, and that those migrants and their parents are necessary because there would be additional tuition involved coming from a group of citizens who are the largest contributors to the cause of public education, and whose financial and moral support is necessary for the continued progress of public education.
Now, the south has had to fight against the private school tradition since the beginning. Public education started later in the south, in the main, and advanced more slowly in the south, and it is today more backward in its development than elsewhere in the country, and that was due to the plantation system, of course, of economy, and to the English tradition that, with respect to education, the tradition that education was the prerogative of the home and the school. That was held by the influential people of that day. Now, [fol. 538] the fight for public education in this State has been to a very large extent the matter of the converting of people with that background to the support of public schools, and to the patronage of public schools.
The matter counts in another way, I think. There are some nine or ten thousand colored public school teachers in Texas. If segregation were abandoned, I can't help asking myself what would become of that body of Texas teachers, our colored teachers in Texas. If these teachers moved with the pupils into the public schools, it seems to me that that would mean that we would not only have the colored and white together as students, but that we would have rather indiscriminate assignment of teachers to classes, wholly irrespective of the merits of the feeling that exists and operates here as a fact. I believe that that bringing of colored [327] teachers in the class rooms for white students would accentuate this movement of public schools.
However, that question, I have no means of knowing, but I think it is reasonable to believe that at the present time the attitude of Texas people being what it is to a very considerable degree, that the effect of the abandonment of segregation on the lower level would set back the public school movement in this state, and as one who has devoted his life to an attempt to improve it, I can't regard that with equanimity. If the teachers are not moved with the students, then what becomes of the colored teaching profession in Texas?
[fol. 539] The great majority of the colored teachers are employed in the colored public schools, both in Texas and elsewhere. Teaching is a principal outlet of service for the educated colored man and woman. There are somewhere between seventy-five and a hundred thousand colored teachers, I would estimate, in public schools in the south, and the implications of segregation for that group, in my judgment, are serious. Now, I think that that not only affects the question of segregation on the higher level, in that it would seem to me that the breaking of segregation on the higher level would move in that direction, but I think it also affects the efficiency of the education of the colored and white students in preparation for higher education. So, I think it has a double relation, and in my judgment, it would at least in that way come back and affect higher education adversely in this state.
Those, I think, are my principal reasons for the statement that I made.
Mr. Marshall: May it please the Court, we have waited as we have been doing all along, to see just where the testimony was going. At this time we move to strike everything said about lower schools. The reason I do, sir, is that although Dr. Pittenger is an expert in the field, I think his original statement was assuming that you can't have unconstitutionality at the graduate level without affecting the lower level, and he isn't a legal expert, and he doesn't have a right to draw that conclusion.
The Court: He doesn't have a right to draw a conclusion as to constitutionality.
Mr. Marshall: All of his testimony was based on that, and we move to strike it. [328]
Mr. Greenhill: Their witness yesterday on the stand testified that in his opinion—
The Court: Are you abandoning your theory that it is only higher education and only one man involved in this case?
Mr. Greenhill: Oh, no, sir.
The Court: Then, this would not be admissible.
Mr. Greenhill: Sir?
The Court: This would not be admissible as to the others, would it?
Mr. Greenhill: On the stand yesterday, over our objection, their witness testified that the time was ripe now to just throw off segregation entirely from the graduate school to the kindergarten.
Mr. Marshall: No, he didn't. He said just the opposite, that the time was ripe for the graduate school.
The Court: That is what I understood, was for the graduate school.
Mr. Daniel: Yesterday we objected to all of the testimony [fol. 541] concerning schools in general. The Court: Yes.
Mr. Daniel: That was overruled, and we preserved a bill. We offer this simply in rebuttal to that, in case the Court allows that yesterday to stand.
The Court: In so far as any evidence has been received here affecting the secondary schools or less than graduate schools, I am not considering it.
Mr. Greenhill: We certainly do not waive our point that the case should be limited to the two schools in question.
Q. Now, Dean Pittenger, I will read you a portion of this pamphlet from which relator's witness testified yesterday, entitled "The Senior Colleges for Negroes in Texas," on page 83, which is in the nature of a summary from all of the statistics drawn in this pamphlet.
Mr. Marshall: We object to any reading of conclusions from that pamphlet. The witness can testify as to his conclusions.
Mr. Greenhill: I am going to ask him if these are his conclusions.
Mr. Marshall: All right.
The Court: All right. [329]
By Mr. Greenhill:
Q. (Reading.)
"Admission of Negroes to existing State Universities [fol. 542] for whites is not acceptable as a solution of the problem of providing opportunity for graduate and professional study for Negroes, on two counts: (1) Public opinion would not permit such institutions to be opened to Negroes at the present time; and (2) even if Negroes were admitted they would not be happy in the conditions in which they would find themselves."
 
I will ask you to state to the Court whether or not these views are your views?
Mr. Marshall: We object, if Your Honor please, because the testimony offered yesterday in the form of Donald Murray was directed to the point as to whether or not there was validity in the fact that if you attend a school you will be unhappy, and was stricken on the motion of the Attorney General. Either that goes in or nothing.
Mr. Greenhill: We would be very happy for all of the evidence offered throughout this book on all the State institutions and appropriations and their faculty to be stricken.
The Court: We are not concerned with that. The only question here resolves itself into legal administration of schools, and it is difficult for us to determine the condition of one's emotions when he enters any school, so I think we are concerned as to whether or not the first part of that is [fol. 543] his opinion, that it is to the best interest for this, for the abolition of segregation.
Mr. Greenhill: Did you sustain his objection?
The Court: Yes.
Mr. Greenhill: Note our exception.
The Court: Yes, sir.
Q. Relator also brought over this "General Study of colleges for Negroes," a publication, I believe, prepared by Mr. Caliver, in which it was stated, "negro students in northern universities do not, as a rule, participate fully and freely in the life of the institution." You having been educated in a northern school, and having taught there, do you believe that is a correct statement?[330]
Mr. Marshall: If Your Honor please, that was around 1911, I think it was. I think that is a little far back.
By Mr. Greenhill:
Q. Have you made any study of that in recent years? Have you studied any of the recent scientific reports on this subject ?
A. Not to any great extent, no, sir. I would say this—
Mr. Durham: We object to that.
The Court: If he doesn't know that.
A. The date 1911 is incorrect.
Mr. Marshall: I apologize.
By Mr. Greenhill:
Q. Do you know whether or not these are the facts ?
[fol. 544] Mr. Durham: We object to that. He says he doesn't know, I believe.
By Mr. Greenhill:
Q. When was your latest study of northern schools, Dean Pittenger?
A. My latest contact was in a summer session at the University of Colorado in the middle thirties, I would say 1935 or 1936.
Q. Well, now, at that time did you notice whether or not this statement that I have read here was the fact?
Mr. Durham: We object to that as being a conclusion and opinion of the witness as to what the mental processes of the students were in that school.
The Court: Yes, you had better ask what he saw.
By Mr. Greenhill :
Q. Did you observe whether or not the students were given a full opportunity to participate?
Mr. Durham: We object to that as an assumption that he did observe.
The Court: Just what he did see. [331]
By Mr. Greenhill:
Q. What did you observe?
A. I can relate one incident that occurred. In my class in school in finance at that institution, I taught a Negro principal from Houston, and since he was from the same part of the country I was, I stopped him after class and talked to him about his experiences in that institution.
Q. Go right ahead, sir.
A. I didn't inquire as to the extent of his participation [fol. 545] in the general college activities. I feel very certain as to the extent of it.
Mr. Durham: We object to his feeling.
The Court: Yes, I think that is right. He would have to recite things he saw and observed.
A. All right. I asked the principal where he was living, and he said that he was living at a small—
Mr. Durham: We object to that as hearsay, anything the principal said.
The Court: Of course, that is true.
By Mr. Greenhill:
Q. That is correct. Would you just recite what you observed in connection with that student?
A. Well, I didn't observe any participation by Negroes outside the class room.
Q. Did you observe any activities on the part of that student outside of the class room which would have tended to develop leadership and other qualities?
Mr. Durham: That is an opinion and conclusion.
The Court: He can testify what he observed.
Mr. Durham: What it tended to do would certainly be a conclusion.
By Mr. Greenhill:
Q. Have your observations of mixed groups at universities in the north, whenever there was revealed any discrimination there that would prevent full participation in the total college activities?
[fol. 546] Mr. Durham: We object to that because it is a whole question, at any period or any time, as being in-definite and uncertain.
The Court: He asked if he observed it. I will let him answer it.
A. I didn't observe any participation—
Mr. Durham: We ask—
A. —outside of the class room.
Mr. Durham: —that that be stricken as not responsive.
Mr. Greenhill: Read him the question.
(The Reporter read to the witness the question last set out above.)
A. No.
Mr. Durham: We ask that it be stricken because he didn't ask him if he observed. If the Court please, he asked, "your observations," assuming he had observed.
The Court: I believe I will let it stand.
By Mr. Greenhill:
Q. Dean Pittenger, I will ask you whether or not in your opinion as an expert in the field of Educational Administration, whether or not a Negro student can receive substantially an education, substantially equal, in a colored institution to that which he would receive in a white institution, or mixed, provided the facilities of both schools were substantially equal?
Mr. Durham: We object to the word can, and sub-[fol.547]stantially.
The Court: Does he have an opinion, is what we want. You can amend it by saying, does he have an opinion.
Mr. Durham: Further, we think any testimony should be upon his conclusions, and not a conclusion of law that is the issue in this case.
By Mr. Greenhill:
Q. What is your opinion on that point, Dean Pittenger?
A. I confess that am a little confused by the status of the question now. Will you clear me up on that?
Q. I will ask you whether or not, based on your experience as an expert in the field of educational administration, assuming equal facilities in the schools involved, whether or not a Negro student can and will or could receive, I will say, could receive—
The Court: Has the opportunity to receive. [333]
By Mr. Greenhill:
Q. Does he have the opportunity to receive an equal education in a school exclusively colored, as compared with that of mixed colored and white?
A. That is one I am puzzled about. May I ask about that?
The Court: Yes.
A. I am unable to think for the moment of colored institutions and white institutions which do have equal facilities with which I have been associated.
By Mr. Greenhill:
Q. I understand that, Dean Pittenger. I am asking [fol. 548] you to assume equal facilities.
A. And then you ask me does he—
Q. Did he have the same or equal opportunity?
A. In my judgment, yes. He would have equal opportunity, as I defined equal opportunity a while ago, a total opportunity, but not the same.
Q. That is all.
Cross-examination.
Questions by Mr. Marshall:
Q. Dean Pittenger, this Negro principal from Houston who was in Colorado when you were teaching; you testified that he didn't participate in any of the outside activities. I want to ask you a question as to how wide was your knowledge of what he did when he wasn't in class?
A. Only what I got through conversations with him.
Q. Only through conversation?
A. That is right.
Mr. Marshall: If Your Honor please, may we have that answer stricken?
The Court: He didn't answer anything.
Mr. Marshall: I mean his original answer, not that answer.
The Court: It was based on his observations, and rather goes to the weight than to the admissibility. [fol.549] Mr. Marshall: All right, sir.
Q. do you know of any institution for college training— I am speaking of college training, public or private, in the [334] State of Texas, to which Negroes are admitted which is equal to any of the State supported schools operated exclusively for white students?
A. There is only a range of merit in both. I believe that in total Wiley College is comparable with some of the smaller colleges for whites in Texas.
Q. First of all, I will ask you, Wiley is a private institution, is it not?
A. I beg your pardon?
Q. I wanted to get that clear.
A. It is. That is right.
Q. Wiley College, in the first place, isn't a university, is it?
A. No.
Q. It is a mere four year college. Now, does, in your estimation, does Prairie View—first of all, let me ask you this. Is Prairie View, to your mind, a university?
A. No.
Q. What is the highest classification you could give it, as an expert, as of today?
A. Well, I think it is more than a college, and there is no intermediate term, so far as I know. I think I interpreted [fol. 550] your question. I don't regard Prairie View as a university in the sense that I would conceive of an efficient university. It is more than a college.
Q. What makes it more than a college?
A. The fact that it has graduate work. It offers graduate work.
Q. But it has no professional schools?
A. No.
Q. Is not usually the term "university" applied to schools —professional schools?
A. Graduate work is generally regarded as professional.
Q. Are there any other universities in the country that have only graduate work, and no professional work? By professional work, I mean law, engineering, dentistry, et cetera?
A. I don't know of any. I could not answer that.
Q. Can you name two State supported schools of higher learning, from college level up, that you compare Prairie View favorably with, in Texas ?
A. I think so.
Q. Which ones?[335]
A. I believe that, in total, it would compare with one or two of the teachers colleges in Texas.
Q. Could you give us any one of them?
A. Well, a statement of this sort sounds derogatory, but I think that in total it is comparable for the purpose which it serves with perhaps the Teachers College at Alpine. [fol. 551]
Q. Are you familiar with the fact that the physical plant at Prairie View is less in value than any of the teachers colleges?
Mr. Daniel: Your Honor, we want, just for the purpose of the record, to renew our objection to all of this line of testimony as to other schools.
Mr. Marshall: Your Honor, he said it was equal to—
Mr. Daniel: I want the record to show the point.
The Court: All right, you can save your point.
A. No, sir; I have not compared the values of the plants of two institutions, but I have thought that that was probably the case.
Q. When you say ''equal,'' what do you mean by "equal"?
A. Well, I mean in the total educational value of the services of the institution. Now, the institution at Prairie View is much more many-sided than the institution in Al-pine, or almost any other of the Texas Teachers Colleges. It offers a much more varied program and much more varied opportunity to the Negroes of the State than does— than do several of the teachers colleges, perhaps all of them, to the whites of that are
A. It is not—so far as the equipment that it has, piece by piece, building by building, it is "not the equal. There is more of it, and it serves a greater variety of purposes.
Q. In your teaching of education and school administra-[fol. 552] tion, and your general knowledge in the field, is it correct in educational, rather, in approved colleges you give credit for A. B. Degrees for mattress making in a College?
A. No, I don't think it is.
Q. Or for broom making? Do you know of any institution other than Prairie View where that is done? As a matter of fact, in your teaching, do you not teach, and in your Administration, do you not recognize the fact that that is not a proper subject for credits in a college?
A. I think that that might be a proper subject of instruction in a college which serves the functions of Prairie View. [336]
We have a great deal of vocational work offered in our white colleges for the services of people with different vocational objectives, and I would want to know more than 1 know about the quality of the work done, and the length of the course, and the things involved in a course of instruction of that sort.
Q. Isn't it just general that such vocational subjects are usually taught in vocational high schools and regular high schools?
A. No, they are becoming increasingly,—it depends on the level of the work, and the quality of the work. That is the reason I say I would like to know more about the course, because I don't know.
Q. I see. In going back to our comparing the quality of [fol. 553] the type of education offered at Prairie View, isn't the amount of money available to the school a value in arriving at the equality of the facilities offered?
A. That is one measure, yes.
Q. Isn't it true that Prairie View gets less operating funds than any of the other operating schools in the State?
A. It did at the time this survey was made. I can't answer that question as of today.
Q. Didn't your survey also point out the fact that because of its lack of money, Prairie View lost many of its good teachers ?
A. Yes.
Q. Many with Ph.D.'s?
A. Yes, sir.
Q. So that we then get to the faculty of the school, isn't that a basis for comparison?
A. That is right.
Q. As of the time your survey was made, did you find that the level of the faculty at Prairie View would compare with the other schools?
A. Not on the average, no.
Q. Now, isn't library facilities and library books, number and quality, a valid basis of comparison?
A. Yes, that is right, and it would not compare.
Q. It would not compare with any of the schools, would it? [fol. 554]
A. That is right.
Q. If you compare it item by item, isn't it true that Prairie View is below any of the other schools; isn't that true?
A. If you leave out the scope of its work, the scope of the institution, and take it up piece by piece and compare with [337] other institutions, I think that is true. I think that it was true at that time.
Q. Dr. Pittenger, you testified as to the college and graduate level to the effect that if Negroes were admitted to the University of Texas, or one of the other State supported schools, to sum it up, it wouldn't work; isn't that correct?
A. I think that I testified that I didn't believe that the Negro would have the opportunity to participate in the activities of the school to the extent that he would have in a segregated school.
Q. Is that based on your opinion as to what the students, the attitude the other students would take?
A. Yes, in part.
Q. Has anybody polled the students of the University of Texas to find out how they feel?
A. Not to my knowledge.
Q. Your opinion is just based on your own personal knowledge ?
A. Personal knowledge, yes; based on thirty years of contact.
Q. Thirty years of contact. Do you know anything about the student body of the Law School?
[fol. 555] A. Very little.
Q. Is there any factual basis you have for your opinion as to what would happen if a Negro was admitted to the Law School of the University of Texas ?
A. The only factual basis I have is what we—would be the knowledge and understanding that I have of the attitude of the people in this section of the world.
Q. You are aware, are you not, of the fact that members of the Bar of the State of Texas do not suffer from any segregation after they once pass the bar; are you aware of that?
A. Yes.
Q. What reason do you have that would make it so contrary to that principle to have the students to go to school together a week before they pass the Bar Examination?
A. I don't think I understand that question.
Q. Well, I started with the question that when they passed the Bar, the white and Negro lawyers practiced together. There is no friction at all among them. They take the Bar Examination together. What I am asking you is that why is it that if they can take the Bar Examination together and 22—725 [338] try cases together, that you make the assumption that they can't sit down in a class room one week before that, before they take the Bar Examination together?
A. I think there is a difference between an experience of that sort and a three or four year association.[fol. 556]
Q. I would be very interested in the difference sir.
A. Well, in the first place, you have, by the time you get to the Bar Examination, you have your more serious students selected. In the second place, there is the interest of the group at that time, all very definitely centered on a final project, that of taking the Bar Examination. Over a three year college course you don't have the same selection of students. You have the activity going on on a general campus where there are not only law students, but thousands of others, and you have the opportunity for the cumulative feature.
Q. What I am trying to get at is that the Law School is in a separate building from the rest of the campus?
A. Yes, it is.
Q. It has its own library there, is that correct?
A. Yes.
Q. And is it not true that by the time you reach the stage of going to the Law School, you have a pretty staid objective then, don't you?
A. I think so, more so than the usual college freshman.
Q. Isn't it also true that there is, as I understand your testimony, there is just three years' difference in this matter. For example, do you think anything would happen; or any of the results you have testified would occur if a Negro transferred and entered for the first time the the third year of Law School of the University of Texas, which is [fol. 557] less than a year before the time we were talking about?
A. May I,— I think that you have a wrong impression of my testimony, if I understand your question. I have not been intending to intimate that I thought something would happen.
Q. I didn't mean that. I meant exactly what you testified to, to the effects of it on the students.
A. My statement was, if I recall, that I thought that the opportunity of the colored student to participate in the activities, the total life of the mixed institution would be [339] limited as compared with the opportunities on a segregated campus.
Q. Get back to our question, then; since I understand you.
A. Yes.
Q. If the Negro was admitted to the third year law class, having gone to school in some other approved school for the other two years, would there be any effect on the student as to campus activities or anything else?
A. I would think he would have less opportunity then than if he had gone in and spent three years.
Q. Is there anything that you can name that would stand in the way of a Negro entering the Law School in the third year that would affect that student's legal education?
A. I am not a professor of law.
Q. I am just judging, on your other assumptions, as to what they wouldn't get in outside community life, as to [fol. 558] that part of it.
A. But, if I understand you, you have restricted your question to legal education?
Q. Yes, sir; that is what I was trying to do.
A. And I started out with the assumption of education on every level, on the subject matter of education. It is the opportunity that the student has to mix and to develop in the whole college situation that must be considered, and it was from that point that I was talking. I can't answer a question with respect to legal education.
(Court was recessed at 10:45 A. m., until 10:55 A. m., May 16, 1947, at which time proceedings were resumed as follows:)
Mr. Marshall: Your witness.
Mr. Greenhill: We have no further questions.
(Witness excused.)
Mr. Daniel: Before the State rests, we would like to be just understood, or have the right to at some time this afternoon before the case closes completely, to again present to the Court the testimony of Henry Doyle, and present to the Court certain authorities under which we believe that part of his testimony is admissible as circumstantial evidence as to the participation of the N.A.A.C.P. [fol. 559]
The Court: I would be glad to hear any proposition you have to make.
Mr. Daniel: We rest, with the understanding we may present that a little later on.
Mr. Durham: As I understand, the only matter the Attorney General will be permitted to present or bring up is the Doyle testimony?
Mr. Daniel: And any rebuttal testimony that we might have to your rebuttal testimony.
Mr. Durham: I think we have a right to close this case.
The Court: You close, ordinarily.
Mr. Marshall: At this time, for the purpose of the record, I want to first make a statement that as to the testimony of Donald Murray yesterday, and prior to that time, and the witness today, have both quoted from a statement, and his testimony is all to the effect that if a Negro is admitted to a Law School or to a University in the south that the student body will withdraw and go to private schools, and that is exactly the type of testimony that was given by Mr. Murray yesterday; that in an exactly similar situation, the exact statement made, that that didn't happen, and the students didn't withdraw and go to private schools, and we would like to re-tender that evidence which we put on in a bill of exception.
[fol. 560] The Court: I am not going to consider either of those bits of testimony myself.
Malcolm P. Sharp, a witness produced by the relator, having been by the Court first duly sworn, testified as follows :
Direct examination.
Questions by Mr. Marshall:
Q. Will you give your full name, please ?
A. Malcolm Pittman Sharp.
Q. Your address ?
A. 5329 Greenwood Avenue, Chicago.
Q. What is your present occupation ?
A. Professor of Law, University of Chicago.
Q. Will you state briefly your legal education and your qualifications in general, in the field of law?
[341] A. I received my A.B. at Amherst in 1918, A. B. in Economics at the University of Wisconsin in 1920, L.L.B. at Harvard Law School in 1923, Doctor's Degree, Harvard Law School, in 1927. I did some teaching while I was still in college. Then I have been teaching law since 1925, at Iowa, Wisconsin, and the University of Chicago; a member of the New York Bar,—counting a period for establishing residence, I practiced in New York City for about two [fol. 561] years, served in various advisory capacities in Wisconsin and Washington during the past years.
Q. And are you a member of the Association of American Law Schools?
A. I am.
Q. And have you recently held any position on any committees of that association ?
A. I was Chairman of the Curriculum Committee that reported in 1942. Our work was somewhat disorganized by the war.
Q. What was the purpose of that committee?
A. The committee is appointed annually to consider the curriculum of member schools, recommend changes, improvements, make suggestions to member schools.
Q. Now, as a result of your studies and your teaching experience, along with your experience in the Association of American Law Schools, would you state briefly the recognized purposes of a law school as of today?
A. The purpose of a law school is, of course, first; to train for practice of the profession in the familiar way. The second purpose has been becoming more and more important, as all of the leading schools have recognized, training for positions of public service, as lawyers are called on to fill, to a marked extent, administrative agencies, the bench, legislative positions. The schools are paying more and more attention to training for that purpose. Of course, [fol. 562] the training of teachers and scholars in the field.
Q. In the several items you have mentioned, what type of student body do you need in order to best accomplish that purpose?
A. You need more than anything else, what I should call, a stimulating student body.
Q. What is that?
A. Where competition is great, lively; people from all walks of life. It is more important than your faculty. [342] The most important thing a faculty does, perhaps, is to attract a stimulating, large student body.
Q. Speaking of the student body, your testimony is that you need all walks of life. Are there any other factors you need as to individual students?
A. You need to be well prepared, I should say, in so far as the group of students came from educational institutions whose standards were not up to the best that the others have. They would be a less stimulating group, to that extent. Their native capacity, and their training would not have been up to that of the other students.
Q. What method do you use in teaching in the University of Chicago?
A. We use the case method.
Q. Will you explain that briefly?
A. I agree with much of what Professor Walker and Dean Harrison have said. We have our individual differ-[fol. 563]ences. The case system is designed to, in the first place, to bring out clearly the rules of law, partly by making discussions clear, working over discussions in class room; partly by practicing the application of the principles applied to cases.
I should say those particular advantages in a controlled situation starts the students off to what they are to do all through their careers at the bar. Of course, with practical problems, they have, perhaps they have heard of them in law school, and developed capacity for judgment, which is the mark of a good lawyer. I think in these days a very important addition to the case system is the seminar system which has been considered, and again, we give the students a chance to develop, present their own individual work, differ perhaps, and present it to the class mates for criticism, and hashing over in small groups.
Q. Do you believe the seminar method can be used in a first year law class?
A. I think it can be.
Q. Under what conditions?
A. This is a rather odd notion of my own. As a matter of fact, I think not many law teachers would agree with me, but we have had some success in our tutorial work in our first year students, not for the first year students to work right away at problems, if you are talking about the familiar [fol. 564] first year class. The use of the case system would be better than the most likely alternative, lecture. Seminar [343] is theoretically possible for first year students, but as far as I know, it isn't used anywhere, and I haven't heard that that was suggested here in connection with the proposed new school.
Q. Dr. Sharp, the other question I wanted to ask was— first, I will ask you, is it possible to use the case system in a one-man class, with one man and a professor?
A. Well, as a matter of words, but it wouldn't be what I call the case system.
Q. And is it—which system is the recognized system for teaching a law school today?
A. The case system.
Q. And as used in the progressive law schools of the country today, is it possible to use that same system with a one-man class?
A. Not really, no, I think not.
Q. Doctor, as a matter of fact, wouldn't it come mighty close to the lecture method?
A. I think there would be a great danger that it would.
Q. Do you believe that—well, in your experience—let me ask you this question. Assuming that the proposed Negro Law School is equal in all other respects to the Law School of the University of Texas, except in respect to the size of the [fol. 565] student body, and further assuming that the proposed Negro Law School has a student body which consists of one student; in your opinion, would the Negro Law School offer to that Negro student a legal education equal to that offered to any student at the University of Texas which has a student body of more than 800 students?
A. Certainly not.
Q. With the same hypothetical question put as to the Negro Law School, inserting the word "ten" for the word "one" student, would that change your answer at all?
A. It seems to me still very clearly that the education there wouldn't be in any sense equal.
Q. In your opinion, would it offer to that Negro student a legal education substantially equivalent to that offered to the students at the University of Texas?
A. As far as I can visualize the situation, it would not. Q.' Assuming that the Negro Law School is equal in all respects to that of the University of Texas, and had a sizable number of students, but all restricted to the Negro race, would that school give an education equal to that at the [344] University of Texas, which accepts all students of all groups and all nationalities, other than Negroes?
A. I do not see how it could, for many years, at least.
Q. Will you give your reason for that?
A. You are back to that point about competition. Not [fol. 566] only does it give you argument and give you the examination of the issues that you get in the class room, and having a pretty good class, some size, some opportunity for competition, but a great deal of the student's education occurs outside the class room, as we all know. There has been a saying in the teaching profession for some time that students at Harvard Law School got a good deal of their education by arguing on street corners and in restaurants, and bickering back and forth among themselves. The best thing a teacher can do is start that sort of arguing going, and let it go on all day, with intervals out for briefing cases; a good deal of discussion back and forth.
In view of the testimony that has been given about the character of Negro education at the lower levels—
Mr. Daniel: We object to that. That isn't responsive.
The Court: I think not.
Mr. Marshall: Very well. Go right ahead.
A. Unless the education of the Negro group at all lower levels is equal to that of the white group, we can't expect the competition of the Negro Law School to be as stimulating as the competition in the white law school, which we have assumed to be equivalent in other respects. I should think that one very important function of legal training would be neglected in the Negro school. That is the function [fol. 567] of preparing law students for positions of responsibility as lawyers in Government. The experience of three colored lawyers whom I know particularly well—
Mr. Daniel: We object to that.
Mr. Marshall: I was going to ask him that anyhow.
Q. Doctor Sharp, the University of Chicago, as to race, is the faculty of its law school mixed, or is it separate?
A. It is mixed. We have just called back one of our colored graduates to take a position on our staff as Associate Professor, and Research Professor.
Q. What about the student body? [345]
A. It is mixed. The first time I had had occasion to count the Negroes, I found we had 13 in a student body of about 300.
Q. You mentioned the fact of the purpose of the law school to develop men and women for public service to the country. Well, in your experience at the University of Chicago, can you name any students who happen to be Negroes who have graduated from the Law School, and of your own personal knowledge, gave themselves to public service to the country?
Mr. Daniel: We believe that specific instances are irrelevant and immaterial. He has drawn his conclusions from it.
The Court: Yes. I think the conclusions are well taken, but I doubt if the special instances would assist us any. [fol. 568]
Mr. Marshall: May we have an exception?
The Court: Yes.
Mr. Durham: You will have to let him answer the question.
The Court: To make the bill, he can answer the question.
By Mr. Marshall:
Q. Answer for the bill of exception.
A. There are a number of such cases. Three or four come to mind, particularly. Mr. Ming, who has just come back on our staff, has had a career of public service. Mr. Truman Gibson has had a distinguished public service career.
Q. Would you mind giving that?
A. I am coming back. I was just selecting. Judge Hastie is not one of our graduates, is one of the best I know.
Q. Do you know which school he is from, law school?
A. He is from Harvard; a different generation from mine, but I know of his career. Earl Dickerson, one of our graduates, served on the Council in Chicago. Mr. Charles Houston, a year ahead of me at the Harvard Law School, and on the Harvard Law Review with me, is a bills and notes expert. I can say a word about the career of two or three of these men particularly that seem to illustrate the importance of the point. We naturally think teaching is important. I see no reason for losing talent to the teaching profession on account of color. We are glad to have Mr. [fol. 569] Ming back with us, and it is an advantage to us [346] and to the school that he was not trained in a separate school. He is an American, working on the problems of the State, public utility problems, in which he has had special experience, on cases of problems relating to the regulation of business by Government, which is an increasingly important problem for lawyers, and it is important, it seems to me, that he should be trained to think as a member of the total community. Particularly, he should be trained to think professionally as a member of the total community.
Mr. Gibson is a striking example. He was Special Assistant to the Secretary of War during the war, and was given a medal for his services, and is a member of the President's distinguished committee on public military training. He is a member of the National community, and it is of utmost importance that be was not trained at a segregated school.
Mr. Houston, another schoolmate at Harvard, is working in the field of labor, Government regulation and industrial regulation, working on problems of seniority in the law. He is sometimes able to point out the effects and the abuses of the labor organization practice.
Judge Hastie had a very distinguished career in the field of law—
Mr. Daniel: We will agree in their bill of exception they [fol. 570] can write all of that out in there. We can agree they can write up everything he would have testified to about it.
Mr. Marshall: We have just a few more. The Court: Maybe you can conclude it here now.
By Mr. Marshall:
Q. Will you give Judge Hastie's present position?
A. Governor of the Virgin Islands.
Q. In your experience with these and other students, do you believe that those students, excluding Hastie, whom you do not know personally, from personal contact with him, could any of those men you have named obtained their information that they have used for public service, in a segregated law school?
A. That question of "could" again troubles me. There are distinguished graduates of Howard, which is not strictly a colored law school, but it is largely colored.  I wouldn't want to be that sweeping in my statement.[347]
Q. Do you believe you can get equal value with training of other students, in a segregated law school?
A. Other things being equal, I most emphatically do not.
Q. You testified a while ago about the more competition—
Mr. Durham: We tender this as testimony outside of the bill of exception.
The Court: All right. I will give you your bill.
Mr. Daniel: That is the end of the bill? [fol. 571]
Mr. Durham: Yes.
By Mr. Marshall:
Q. In your opinion, is it possible for one student or ten students entering the first year law class in the proposed Negro Law School that you have heard testified about here where there are no upper classmen, second and third year students, to secure equal or substantially equivalent of legal training to that received by first year law students at the University of Texas where there are hundreds of upper classmen?
A. I think it is not possible for them to receive equal training.
Q. Will you give your reason?
A. What has been said about the competition among classmates, the emphasis has been on the competition of classmates so far. What has been said about that applies to the stimulation a man gets from the upper classmen, and the guidance. Sometimes loose guidance is very healthy, worried about one thing and encouraged about another, and the stimulus which comes from having a full complement of classes and full complement of upper classmen is a matter of first rating in any school. It is essential to the existence of what I should call an operating school.
Q. Do you consider a law review as extraneous to a legal education?
A. Certainly not. One of the most important devices, [fol. 572] most important instruments of legal education in a modern law school is the law review.
Q. Is it of any value to a first year student?
A. It is, in so far as the competition for that outstanding honor, as it is in most schools, makes itself felt all the way down the years. It sets the tone. The law review men are the people that set the tones. [348]
Q. Do you believe the Order of the Coif and other honors are extraneous to a legal education?
A. No, I do not.
Q. What do you classify them as, in your mind?
A. Actually, I think those awards are next important to the law review. The law review is of first-rate importance, but all awards which recognize attainment help in the process of stimulating friendly competition. Competition and friendly association are not by any means incompatible. In fact, they go together, a part of the business in preparing people to deal with the community as a whole. All of these awards step up competition in what I regard as a healthy manner.
Q. In your opinion, do you believe—first of all, you know about the University of Texas and its accreditation?
A. It is a thoroughly accredited school, a first-rate school in excellent standing, of course.
Q. Do you believe that a Negro student could get an equal education in a law school that started in Houston, Texas in [fol. 573] February of this year, moved to Austin in March of this year—
Mr. Daniel: We object to that part of the statement, because it is not in accordance with the facts of the case. They are entirely separate schools, Your Honor. There is no move of that school to Austin.
Mr. Marshall: I will change the question. The Court: I believe I will let you—1 believe I had better sustain his objection as to its moving. Mr. Marshall: Yes, sir.
Q. Do you believe that a Negro could get a legal education in a law school which had been previously established in Houston, Texas, in February of this year, and was closed the same month, and another law school opened in Austin in March of this year, and the record further showing that that school would be moved to Houston in August of 1948; do you believe that a law school student, whether he be white or colored, could get an adequate education in a school, law school of that type?
A. I don't see how he possibly could.
Q. Well, of what importance is the stability of a law school ?
A. Well, it has a human importance which we all recognize. If you settle down to study, yon want to stay at least [349] a year, certainly at least a semester. Normally, when you start in, you plan to finish your course in the school that [fol. 574] you select, go right through. Occasionally there are occasions for moving, sometimes there are advantages. Certainly, the normal law student settles down to complete a course, and he can look three or four years ahead, depending on whether it is a three or four year course.
Q. Is the reputation of a law school of any value to the student, its reputation in the legal field?
A. To the student while he is a student?
Q. To the student while he is a student?
A. I think it is; it gives him confidence, pride, interest; it is a good deal of difference to the student if he feels he is in a good school, running well.
Q. Is the reputation of a law school of any value to the student after he graduates?
A. Well, we all know it may be of importance getting a job for a time. As one builds up a practice it may become of less importance, rank of the schools from which they come. Certainly, in the earlier stages of the lawyer's career, it may make a good deal of difference.
Q. You have heard the testimony about the so-called Negro Law School. I will ask you if a school which opened on March 10th in a—the ground floor of a building which bad been leased for a period of one year, and in which there were three part-time professors to teach, and a library consisting solely of a hundred or two text reference books, could [fol. 575] give a Negro an education equal to that at the University of Texas?
A. May I ask one question there ?
The Court: Yes.
A. May I ask what you mean by "opening"?
By Mr. Marshall:
Q. It opened on—that the doors were opened, and there was a person to register other students?
A. That is all you mean?
Q. Yes, that is all.
A. I don't see how it could, possibly.
Q. Then, I will ask you the next question. Is it possible to get a legal education equal to that at the University of Texas in a law school consisting of one student? [350]
A. No, I should think not.
Q. In a law school consisting of ten students?
A. I think not.
Q. In a law school consisting of a hundred students?
A. One hundred students, how selected?
Q. One hundred Negro students?
A. No, certainly not.
Q. Well, would that type of school with one, ten or a hundred Negro students give a legal education substantially equivalent to that obtained at the University of Texas?
A. I should think not. I am a little troubled by your one hundred case, if you can imagine such a case, conditions [fol. 576] would be a good deal changed, but nothing I can visualize now would give substantial equality in any of the cases you supposed.
Q. Dr. Sharp, assuming a law school established in the basement of a building, ground floor, rather, of a building, and with a library of ten thousand volumes, assuming that they met the requirements of the Association of American Law Schools, and with three part-time professors, and from one to ten students, would that give education substantially equivalent to that at the University of Texas,—Negroes only?
A. I should think not.
Q. Dr. Sharp, a law school established in a building with three floors, assuming that the three floors are adequate in space, adequate in space to accommodate ten students, and assuming further that a total budget of a hundred thousand dollars is spent for reconditioning and stacks, et cetera, would that type of law school give an education substantially equivalent to the Negroes there as that given other students at the University of Texas?
A. I think I have lost the trend of the question.
Q. The difference between the two questions is that one we have one floor and the other we have three floors, plus a library of ten thousand books, plus a budget of a hundred thousand dollars.
A. That budget is for repairs ? [fol. 577]
Q. It is for everything.
A. Salaries?
Q. Including books, salaries, and everything else.
A. I should think not, by any means. [351]
Q. Would your answer be changed if we added that there were four full-time professors there, and all Negro students, in the same situation?
A. Well, if you got four most eminent professors in the United States, about whose names I would have to think a little before I decided who they were, it is perhaps conceivable that this select group of Negroes would get an education that was at any rate comparable to that which the boys got, sizable classes with competition and so forth, at Texas, but I should think even then it unlikely, and I suppose no one school can hope to have the four greatest teachers in the United States, least of all, a new school, and least of all, one established under these conditions.
Q. Even with those circumstances, could you get the total community thinking in a school of that type?
A. I wouldn't think so. It would take extraordinary teachers, indeed.
Q. That is all.
Cross-examination.
Questions by Mr. Daniel:
Q. Dr. Sharp, would your answer to the questions just [fol. 578] asked you be changed if in the same situation you had two law schools, one for Negroes, one for whites, both law schools had exactly the same faculties, exactly the same facilities; by that, I mean the men of equal prominence and ability, and both of them had the same courses, the same number of students, the only difference between the two law schools being that the student body of one was made up Negroes, the student body of the other made up of white students, the student bodies, however, being equal, I will ask you if, in your opinion it would be possible that — school for the Negroes would furnish substantially equal opportunities for training in law and procedure as the one for the whites?
A. May I ask about one of the conditions?
Q. Yes.
A. Where does the faculty have their offices?
Q. In exactly the same in one school as in the other?
A. I don't understand that.
Q. Sir?
A. Where do they do the most of their work?[352]
Q. The same in the Negro school as in the white school. I am asking you a hypothetical question along the lines that you have had hypothetical questions on direct examination. In my question, everything concerning one school is the same as the other, identical, the only difference being" that one is made up of white students, the other made up of [fol. 579] Negro students?
A. Well, I can answer the question, but I have still a doubt in my mind as to the conditions. As a teacher, I visualize certain things about that condition. I can't imagine operating from two offices equally.
The Court: It would probably be different teachers of equal standing.
By Mr. Daniel:
Q. Yes, sir, different faculty, but the total of the faculty such that even you would say that one was absolutely as good as the other?
A. Well, I should still say no.
Q. In other words, it is your opinion it is an absolute impossibility to set up a separate law school for Negroes, no matter how good a faculty, no matter how good a building and no matter how good a library that would be equal to exactly the same kind of institution set up for whites?
A. No, I think I have avoided saying that. I recognize that some point of extraordinary faculty, and perhaps extraordinary equipment, might turn the balance. It is a point that hasn't been suggested to me in any realistic way by the questions.
Q. Where the faculty amounts to the same, you don't believe that the Negro school could furnish substantially equal opportunities as the white school, everything else being equal except that they are separate schools? [fol. 580]
A. No, for the reasons I have already explained
Q. Then I will ask you if it is also your opinion that on the basis of the reasons that you have testified about, the facilities being exactly with the same faculty and all-in higher education that a separate school for girls can facilities, can furnish substantially equal educational opportunities as exactly the same but separate schools set up for men ?
A. I thought you were—you asked me about co-education. I haven't answered.[353]
Q. I believe that is the word.
A. Are you asking me about new colleges? You asked me to contrast women's schools with co-educational colleges.
Q. We are asking for the same opinion along the same lines we have been asking you about here this morning, where you have exactly equal facilities, as good a faculty, and all, in a separate women's college, separate from the men, whether or not in your opinion it would be possible, based on the reasoning that you have given here, for that school for girls to offer substantially equal opportunities for higher education as the separate school for men?
A. That is, they are both segregated?
Q. Segregation on each side.
A. You are not asking me to compare co-education?
Q. I am asking about separate.
A. Everything else being equal, I see no reason why the [fol. 581] separate school for girls should not have the same advantages and disadvantages that the separate school for men has. I happen to think this; co-education, other things being equal, is better.
Q. Let's take co-education. In your opinion, the mixed school, in so far as men and women are concerned, co-educational schools, in your opinion, can the separate schools for men and women furnish equal opportunities with the co-educational schools?
A. First, of course, they can and actually do, because you have cases where we know like Harvard and Bryn Mawr, very distinguished staff, and where work is done on a very high level. Other things being equal, I should prefer the situation in Chicago. It has the advantages of a non-segregated school. I should prefer the situation like we have in Chicago, where we have co-education.
Q. I am not asking what you prefer. I was asking if in your opinion substantially equal educational opportunities could be furnished in the separate school for women as could be furnished in co-educational schools, with all having the same type of faculty and facilities?
A. Other things being equal, I should think not, not as desirable.
Q. I asked you whether equal educational opportunities could be furnished. Is your answer the same on the opportunities that are afforded for equal education? [354] [fol.582]
A. Yes, other things being equal, the opportunities would not be equal in the segregated school as compared to the co-educational school.
Q. Have you ever taught school in Texas or any other southern state?
A. No.
Q. Have you ever gone to school in the south?
A. I trained in the south during the last war, taught flying in Miami, a teaching assignment.
Q. I mean in schools of higher learning?
A. No.
Q. Have you made any study of the schools of higher education in the south?
A. No, sir.
Q. Have you made any study of the attitudes of the people of the south on the question of segregation, regardless of the merits of those attitudes, or how they came about ? Have you made any thorough investigation of what those attitudes, good or bad, are?
A. It depends on what you call study, or what you call thorough investigation. I haven't made the kind of study Dr. Thompson has made.
Q. You are not, then, fully acquainted with the attitudes as they relate to the possibility of mixed schools, are you, in the south? [fol. 583]
A. Not in the sense Dr. Thompson has.
Q. You don't feel qualified as an expert on whether or not the social attitudes in the south, good or bad, are such that mixed schools would work better than the schools, are you?
A. You are talking about schools at all levels?
Q. I am talking about higher levels, colleges; whether or not you are acquainted with those attitudes, or have made any study of those attitudes for the purpose of determining whether or not they would work better in the south, better in the separate schools, or in the mixed schools? In other words, are you willing to qualify as an expert on it? Do you feel like you have made the study necessary to give an expert opinion on that question?
A. I think I have made enough study of law schools and have spent enough time in them so that my opinion about mixed or segregated law schools—
Q. In the south?
A. South or north.[355]
Q. I am talking about whether or not you have made any study of the attitudes of the people of the south, if you have made a thorough enough study to be acquainted with those attitudes and the influence they would have on. the success of a separate law school?
A. I think I have some acquaintance, but I have not made [fol. 584] the kind of technical study Dr. Thompson made.
Q. You would not attempt to give this Court an expert opinion on that question today?
A. The question of education generally.
Q. The question of the attitudes of the people of the south as applied to the possibilities of the mixed schools being as successful as separate schools in higher education and fields of training?
A. If—1 don't mean to fence with you, or be facetious, but I have not made any special study of race relations in the south.
Q. Back to your point as to a stimulating student body being one of the requirements for, in your opinion, for a good law school, I will ask you, Dr. Sharp, if you will not agree that the attitudes of all of the members making up that student body, social attitudes, whether they be good or bad, or regardless of where they came from, if those social attitudes will not have some bearing on the stimulating study body that you are talking about?
A. Surely.
Q. Will those not also have some bearing on whether or not the student in a mixed school would have the same encouragement or help from upper classmen as he would receive in a separate school?
A. Surely. [fol. 585]
Q. You will agree also that the attitudes, whether good or bad, of course, will have some bearing on the support of the institution involved in a southern state, won't you, the State support given to them, and the support of individual citizens?
A. I think you have disqualified me to testify in this crowd. I am not an expert—
Q. I will ask you if you don't know enough about it in general to know that the social attitudes in any state will have some bearing on the support given a mixed school in that state?
A. I do not know more about this subject than—it is the same sort of general acquiring of knowledge that I have [356] about race relations in the south. If you want me to speak about it on the same sort of qualifications, I am willing to but I am not willing to leave the other question and—
Q. I will withdraw that question. Now, you talked about the various benefits of the case system, one of them being the chance, the opportunity for the student to recite, to report on the work that they have done on the particular cases assigned. That is one of them, is it not?
A. One of them, only one.
Q. Only one. Beginning with that one, all other things being equal, I will ask you if it isn't true that in a class made up of 125 students, that a smaller percentage of the [fol. 586] students will have an opportunity to recite and report on each case than in a class made up of ten students during a one hour period, the same period of time?
A. In a very mechanical sense, that is true.
Q. And is it not true that a greater percentage in the smaller class will have an opportunity to discuss and criticize the case and be heard from on the case than in the larger class ?
A. I would rather say no, not necessarily, but in a mechanical sense, it is conceivable, if you divide up the minutes you will get some such result as that, but I don't think that touches the real point.
Q. On that one point, regardless of what you would rather say, the truth is that you would have to say yes, as far as the greater percentage of students having a chance to, the time in which to comment on each of the cases assigned?
A. May I explain my qualification?
Q. As soon as you answer the question.
A. In a mechanical sense, yes.
Q. Yes.
A. But I don't know how you could with 30 or 40 fellows all wanting to be heard, which happens in a good class. They can't all talk. When you have a good class, you see all sorts of people ready to say something all at once. Of course, they can't all talk. That is the kind of class that goes well.
Q. In a class of 125, they can't all talk, can they? [fol. 587]
A. No, but they can all be ready to, in a really good class.
Q. They can all be ready to in a really good class. In a class of ten they can all be ready to, can't they? [357]
A. Yes, they can, but I am not so sure it is likely.
Q. It is possible they can all be ready?
A. Yes.
Q. And it is possible to call on more of them than in a class of 125 during an hour's class?
A. In a mechanical way, yes. It is a very good feeling for them all to want to talk.
Q. From the standpoint of the professor?
A. And the standpoint of the student.
Q. You mentioned that with first year students you had found tutorial work to be successful?
A. Yes.
Q. What do you mean by tutorial work?
A. Work which is conducted with us by a special staff of younger men in the preparation of papers on problems, the examination of those papers by the tutorial staff, and instruction in the art of writing, using language, as well as in the art of legal research, building up a case, doing some productive work on one's own.
Q. Derived from the old tutor system of instruction?
A. It has been used very successfully in the English universities.[fol. 588]
Q. And that system is applied to the individual student?
A. Yes.
Q. The tutor works with the individual student?
A. Yes.
Q. You have found that quite successful, yon say, with first year students?
A. In this form, this form of promoting the development of individual skills and talents and capacities by the assignment or awarding pieces of work.
Q. That system, that tutor system that you have spoken of as being successful with first year students, comes much nearer to operating that law school with one student than any other system you have described here today, does it not?
A. Oh, I think not. I think what I said about the value of competition in the class room, and outside the class room, applies to this sort of thing. Boys get together. We don't Prohibit them from talking over their papers together. We desire it sometimes by groups.
Q. In a law school with one law student, the type of instruction will be nearer the tutorial type than the lecture type, wouldn't it? [358]
A. Not necessarily, at all.
Q. It could be, though, you will agree ?
A. I don't see any special likelihood of it. There is an equal likelihood that the student would begin to lean on the [fol. 589] one professor. It is quite as likely to develop into a rather casual lecture. It is easy to lecture one student.
Q. It would be similar to your tutorial system with the one student?
A. I think it would be very different, Our tutorial system depends on the work over an extended time, with particular problems, developing skills in a school of some size where there is enterprise. I see no real similarity between the essential character of the tutorial system and a school with one student.
Q. No connection. On your question a minute ago, and your answer about a law school moving, you don't mean to state to the Court that in your opinion that if Harvard Law School moved to another city in the State of Massachusetts that that would cause any inequality to a one year law student who had been there only the year before the move, do you?
A. If the move is in the middle of the year?
A. No. At the end of the year.
A. The question was about the middle of the year.
Q. Did you think Mr. Marshall's question a minute ago about the move of the proposed Negro Law School, that he meant that it would come in the middle of the year, school year?
A. It came in a month, as I recall it, which is normally in the school year. ,
Q. And your assumption is that that date was in the mid-[fol. 590]dle of the school year; right?
A. Yes, sir, on that, but I don't think that is the only factor in my answer.
Q. Now then, if the Harvard Law School moved at the end of the school year, the student who had been there during his first year's work, only his one year, do you feel it would be any inequality to him at all if the school happened to move to another city in Massachusetts where he was allowed to continue his work under the same direction?
A. I can hardly imagine such a move being made for any-thing but a good reason, and I don't imagine it would the student any harm.[359]
Q. The same would be true of any other good law school that made a move at the end of the year, all other things being equal, that would cause no particular disadvantage to the student?
A. The same thing would be true of any first-rate school.
Q. I said, substantially equal.
A. It is hard to visualize, but I can't imagine such a case.
Q. We will imagine such a case. Is it your answer it would do him no harm, or furnish no inequality by such a move?
A. Harvard goes from Cambridge to Northampton, Massachusetts, leaving the University. It is a hard case to think of, but—
Q. We have already effected the move. I am asking you about a move of any law school substantially equal to Harvard Law School, if it moved at the end of the school year [fol. 591] to another location, whether or not in your opinion that would cause any disadvantage or inequality to the first year law students who had been enrolled in that school?
A. I suppose it would cause some inconvenience, all right, but no disadvantage.
Q. That is all.
Redirect examination.
Questions by Mr. Marshall:
Q. Dr. Sharp, if Harvard should move this year, it would be after how many years at the same stand?
A. About 120 years.
Q. That is all.
Mr. Daniel: That is all. (Witness excused.)
The Court: We will resume at two o'clock.
Court was recessed at 12 o'clock noon, May 16, 1947, until 2 O'clock p. m., May 16, 1947.
Afternoon session May 16,1947 2:00 P. M.
[360] [ [fol. 592]
Mr. Daniel: You have rested ? Mr. Durham: Yes.
Presentation of authorities
Mr. Daniel: Now, Your Honor, I would like to present the authorities I have mentioned before going back to Henry Doyle's testimony. I do apologize for asking the Court to change its ruling on the matter, but I would like for the Court to consider the purpose.
The Court: All right.
Mr. Daniel: In the first place, it bears on the point that there are no students in the school. We really believe, Your Honor, that the relator has made quite an issue of the fact that no students are in there, and especially the situation where there is only one student there, all through this case.
We also think that there is no question that the evidence shows the National Association for the Advancement of Colored People are giving active assistance to relator, but I would like for the record certainly to show that we make no objection to it, and think that it is only proper that they do render that help, if they think relator's case is right.
The only thing we point out about the National Association for the Advancement of Colored People, and the chain [fol. 593] of evidence being in the attempt to show the discouragement given by that association to students in the school, given not only by the association, but by the attorney for relator, whose acts certainly do have a bearing, him being in that position with relator.
Now, we have direct evidence in the case, Your Honor, showing this. We have direct evidence in the case by the relator himself that when he received his notice about the school being open, that he didn't make up his own mind about whether he would attend, but went to his attorney in Dallas to make the decision. His attorney in Dallas testified that he did not make any investigation of this school down here, but he called Maceo Smith, and Maceo Smith was shown to be the Secretary for the National Association for the Advancement of Colored People here in Texas. That upon the report received within four or five days from [361] Maceo Smith, Mr. Durham and the relator made up their minds that he would not enter. Therefore, we have the direct evidence of at least some influence.
We could not go into what the report was, but some influence of the association bearing on at least one student not going to the school, the relator here himself. We feel that any other evidence as to another prospective student, the fact that he was mentioning going, and he didn't go, even though it is circumstantial evidence, it would certainly have a bearing in this case.
[fol. 594] Yet, Your Honor may not consider any of that evidence. If this case is appealed by whichever side loses the case, I am just thinking about if some other court might not wonder what about other students. We at least have one on whom we offer circumstantial evidence.
I would like to read from about three authorities on circumstantial evidence in cases of this kind. In the first place, quoting from two Texas cases by the Supreme Court of Texas, the general rule stated in those two cases is as follows:
''As a general rule, in the absence of direct evidence, evidence of any circumstance, however slight, which conduces or tends in any degree to establish a material fact, or which affords fair presumption or inference to the question in dispute is relevant and admissible."
 
And from Texas Jurisprudence I quote:
''It is not necessary that the fact sought to be proved should have direct reference to the main issue and however remote from the main issue, it is proper to submit such issue if the evidence refers to a fact relevant to a fact in issue."
 
And then Duke v. Houston Oil Company, a recent case, this statement:
"Generally, any conclusion may be based upon cir-[fol. 595]cumstantial evidence, and fact that evidence is circumstantial does not render it incompetent. Where it is sought to prove an ultimate fact by a chain of circumstances every circumstance should be considered."
 
[362] And them I quote from McCormick and Ray on Evidence:
 
"A design, plan or intention may also be evidenced circumstantially by conduct showing it. The kinds of conduct usable for this purpose are infinite in variety, but the decided cases deal with comparatively few of them. In general, however, it may be said that any act which under the circumstances and in the light of experience would indicate a probable design, is admissible."
 
We admit readily that we do not have direct evidence from Henry Doyle that the National Association for the Advancement of Colored People persuaded him to make up his mind not to enter the law school on March 10th, but we do feel like his evidence contains certain circumstances such as this that are important. First, for instance, where he resides, and that he was considering prior to March 10, 1947 this new law school, and entering it. That while he was still considering this school he attended a meeting of others of his race, including Maceo Smith, the Secretary — shown by the evidence to be Secretary of the N.A.A.C.P., [fol. 596] in Dallas, while still considering whether or not he would attend this school, at that meeting. Mr. Durham, attorney for the relator, appeared before that meeting, and that the witness, Henry Doyle, on March 10th, did not enter the school. No direct evidence, but Your Honor, it does show that in making up his mind he was in a meeting with the same people, Mr. Durham and Maceo Smith, that made up the mind or helped influence one student not to go to the school, and we think those circumstances are at least, maybe only slight, but they bear in a way in explaining at least what one prospective student did in making up his mind, and the fact that he did not finally enter the school; that that conduct in the meeting in Dallas is admissible for the purpose of showing at least what one other student who did not enter did about considering the matter.
The Court: And you re-tender the evidence of Doyle?
Mr. Daniel: Yes, sir, we re-tender the evidence of Doyle, that particular portion of it that is on the point that I have outlined here to the Court. Some of. it is not admissible, of course, but only the points that are not objectionable on some other ground.
The Court: I think I will give you your bill.
Mr. Daniel: Note our exception.
[363]The Court: Have you anything further?
Mr. Daniel: That is all, Your Honor.
Mr. Marshall: We are through.
Testimony closed.
end of document