Wednesday Writs: Lloyed Gaines Fights the Power Edition

Lloyed Gaines in 1938 [AP Photo now in Public Domain]

L1: In the annals of American legal history, 1954’s Brown v. Board of Education is likely tied with Roe v. Wade for most famous SCOTUS cases, and certainly tops the list in civil rights cases. Brown, of course, struck down segregated schools and overturned Plessy v. Ferguson, which had established the unfair and unworkable doctrine of “separate but equal.” However, while the significance of Brown cannot be overstated, a lesser-known predecessor from thirty years prior deserves some attention.

Lloyd Gaines

Lloyed Gaines was a black man from Mississippi, living in segregated Missouri. In 1935, he graduated from Lincoln University, an all-black college. Lincoln had no law school, so Gaines applied to the University of Missouri School of Law- which did not admit African Americans. According to the state law at the time, if no law school in the state would agree to accept Gaines, then Lincoln University was obliged to pay out of state tuition to a school that would accept him and provide an equivalent legal education to that of UM.  Gaines was refused admission to law school at UM, on the grounds that his admission would be “contrary to the constitution, laws and public policy of the State to admit a negro as a student in the University of Missouri.” Gaines filed suit for violating his constitutional rights by denying him admission based on his race.

The state’s laws and its constitution provide for separate but equal public schools through high school but made no mention of higher education. The state court, however, reviewed the statutes and determined their intent was to maintain segregated colleges and beyond, as well. The statute which required Lincoln University to pay for out of state education where it could not offer the same program was determined proof of the intent to separate the races beyond high school. The court thus found that the refusal to admit Gaines was in accordance with state law and, further, did not amount to discrimination because of the provision of tuition to out of state schools. The state patted itself on the back for its creation of Lincoln University, deeming itself a “pioneer” in equal education.

Lloyd Gaines appealed, and the ruling in our case of the week, Missouri ex rel. Gaines v. Canada was announced on December 12, 1938. The majority opinion was written by Chief Justice Charles Evans Hughes.

The majority agreed that it was real nice of the state of Missouri to establish a university just for African Americans, but nevertheless took issue with the complete lack of legal education available to black Missourians within the state’s borders. Hughes wrote “that the State excludes negroes from the advantages of the law school it has established at the University of Missouri.” Notably, the state of Maryland had already dealt with essentially the same facts and the appeals court had issued a mandamus to order the University of Maryland to admit black students to its law school.

Missouri argued that because there was a “legislative declaration” of intent to create a law school at Lincoln “whenever necessary and practical”, and had created a scholarship program to fill in the gaps until such time as a sufficient number of black students decided they wanted to become lawyers.

The Court found this an inadequate effort for providing an “equal” legal education to black students. The state’s lawyers argued that the statute which required Lincoln to establish a law school “whenever necessary and practical” meant that Gaines needed only to alert Lincoln’s curators that he desired a legal education, and the university would have been obliged to establish a law school. The Court did not read the statute as creating this mandate, but rather leaving it to the school’s discretion to decide when it was “necessary and practical.” Chief Justice Hughes quoted the lower court’s opinion, which also found the creation of a law school at Lincoln to be within the discretion of its curators:

The statute was enacted in 1921. Since its enactment, no negro, not even appellant, has applied to Lincoln University for a law education. This fact demonstrates the wisdom of the legislature in leaving it to the judgment of the board of curators to determine when it would be necessary or practicable to establish a law school for negroes at Lincoln University. Pending that time, adequate provision is made for the legal education of negroes in the university of some adjacent State, as heretofore pointed out.

The Court opined that the failure of the University to establish a law school due to the interest of a single student was not an abuse of its discretion. The real question for the Court was whether the out-of-state tuition grant was sufficient to protect Gaines’ rights (such as they were, at the time.)

Indeed, four states adjacent to Missouri had law schools that accepted black students: Kansas, Nebraska, Iowa, and Illinois, all of which the state court found to be of equally high standing as UM (more so, I’d argue, based on their admission policies alone.) Further, argued the state, the schools taught the same subjects and used the same books to do so. Gaines argued that for one intending to practice law in Missouri, attending law school in Missouri had advantages that would be lost by attending an out of state school, such as its prestige among his prospective clients, the opportunity to observe local courts, and, of course, the study of Missouri law, unlikely to be taught at Kansas.

Hughes disregarded these arguments as being beside the point. “The basic consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color,” wrote Hughes. “By the operation of the laws of Missouri, a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there, and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination.”

Turning to the state’s argument that the lack of demand for legal education by black students mitigated its obligation to provide such opportunity in state, the Court was likewise unpersuaded. The Court referred to a previous case out of Oklahoma, McCabe v. Atchison, in which a rail carrier cited the lack of black patrons as relieving their obligation to provide dining facilities for them. In McCabe the Court ruled that “the essence of the constitutional right to equal protection of the law is that it is a personal one, and does not depend upon the number of persons affected.”

The Court did not obliterate the odious “separate but equal” doctrine; it did not make any finding that Missouri’s law and practice of segregation was unconstitutional or even wrong. However, the Court did assert that the remedy Gaines was entitled to was that be admitted to the University of Missouri School of Law or that the state establish a separate law school. Had Lincoln had a law school, or had there been some other blacks-only law school in the state for him to attend, the Court likely would not have taken issue with the refusal of UM to admit the plaintiff.

It was a small step, a very small step, toward the eventual barrier-breaking Brown decision. But even this was not a unanimous decision; Justice McReynolds dissented, believing that the state would dismantle its law school rather than permit Gaines to attend:

For a long time, Missouri has acted upon the view that the best interest of her people demands separation of whites and negroes in schools. Under the opinion just announced, I presume she may abandon her law school, and thereby disadvantage her white citizens without improving petitioner’s opportunities for legal instruction; or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races.

In the end, Missouri did not disband its law school at UM, nor did it grant Gaines admission. Instead, it began the process to quickly establish a law school at Lincoln University the following year. Lloyd Gaines lived in a fraternity house in Chicago, gave an occasional speech, and worked odd jobs while he awaited the law school’s opening; meanwhile the NAACP prepared another law suit to challenge segregation. He left the house one night in March of 1939, three months after the Supreme Court decision, and was never seen again.

The University of Missouri integrated in 1950. Gaines’ story inspired other black Americans, such as Lucile Bluford, to fight against segregation, and his case was cited in Brown in 1954, when integration became the law of the land. In 2000, the University of Missouri renamed its black culture center after Lloyd Gaines, and in 2006 it awarded him a posthumous honorary juris doctorate.

His disappearance remains a mystery to this day.

L2: A federal judge invalidates a Florida law requiring full payment of all fines, fees, and restitution before allowing felons to vote, calling the provision a poll tax.

L3: Michigan’s Governor Gretchen Whitmer vows legal action after a catastrophic dam failure, citing maintenance neglect.

L4: Elon Musk and girlfriend Grimes are forced by the state of California to change their baby’s ridiculous name to something slightly less ridiculous.

L5: Nevada allows law grads to use books and other resources while taking the first ever open book online bar exam.

L6: A Dutch family feud over Facebook photos will test Europe’s online privacy laws  

L7: A US District Court opinion discards New York’s East Ramapo School Board’s method for electing board members, agreeing with the NAACP’s claim that their current plan is unfair to blacks and Latinos.

L8: Dumb criminal of the week should be renamed the adventures of Florida Man: Florida Man charged with bioterrorism for coughing on and spitting at police while pretending to be infected with COVID-19.