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Messrs. William S. Hogsett and Fred L. Williams, with whom Mr. Fred L. English was on the brief, for respondents.

The Supreme Court of Missouri has held that the laws of Missouri do not entitle the petitioner to be admitted as a student in the University of Missouri, and that those laws provide for the separation of the white and negro races for the purpose of higher education. The second part of the decision, fully recognizing petitioner's constitutional right to equal facilities for legal education, finds as a fact that the State has accorded him equal facilities which finding of fact, supported as it is by strong and uncontradicted evidence, is binding upon this Court. The absence of a substantial federal question is manifest.

Petitioner refused to avail himself of the facilities for a legal education provided by the State. If he had applied to the Lincoln University curators for a legal education, it is to be presumed that they would have given it to him in accordance with their mandatory duty under the Act. His refusal to avail himself of his legal rights is fatal to his case.

The State of Missouri has not denied petitioner the equal protection of the laws by excluding him from the School of Law of the University of Missouri.

Separation of the white and negro races for purposes of education does not infringe the rights of either race guaranteed by the Fourteenth Amendment.

Social equality is not a legal question and can not be settled by law or by the judgments of courts.

The facilities for legal education available to petitioner under the Lincoln University Act (S$ 9616 to 9624, R. S. Mo., 1929) are substantially equal to the facilities afforded white students in the School of Law of the University of Missouri.

In separating the races, and in determining the particular facilities to be used by the two races, the State is allowed a large measure of discretion; and the courts will not interfere with the exercise of that discretion as unconstitutional, except in case of a very clear and unmistakable disregard of rights secured by the Constitution of the United States.

The Lincoln University board of curators are not merely authorized, but are required, to reorganize the institution so that it shall afford opportunity to negroes equal to that accorded to white students; and, pending the full development of Lincoln University, are required, to arrange for the attendance of negro residents of the State at the university of any adjacent State, to take any course of study provided at the University of Missouri but not at Lincoln University; and they are not merely authorized, but are required, to pay the reasonable tuition fees for such attendance (§ 9622, R. S. Mo., 1929). The duty to do these things is mandatory and peremptory.

The responsibility and duty to carry out this plan has been placed by law-not upon these respondents, the curators of the University of Missouri-but upon the curators of Lincoln University.

If petitioner pursues his legal rights and makes application to the Lincoln University curators for an education in the law, it will then become their mandatory duty (a) to establish a school of law in Lincoln University and to admit petitioner as a student therein; and (b) pending that, and as a temporary matter, to arrange for the attendance of petitioner in one or another of the schools of law already established in the Universities of Kansas, Nebraska, Iowa or Illinois (all of which admit negroes), and to pay his tuition fees while he is attending such school.

Substantial equality and not identity of school facilities is what is guaranteed by the Fourteenth Amendment.

The fact that in order to avail himself of legal education in any one of the four law schools in adjacent states, the petitioner (a grown man) would be put to the necessity of traveling farther from his home in St. Louis than the distance from St. Louis to Columbia (where the University of Missouri is located), is a mere matter of inconvenience, which must necessarily arise as an incident to any classification or any school system; and the court below held that this furnishes no substantial ground of complaint by petitioner. Petitioner's expense of travel to any of these adjacent state universities would be no greater than the traveling expense of students living in various parts of Missouri, who attend the University of Missouri at Columbia.

The question of the constitutionality of the provision for out-of-state instruction is, strictly speaking, not presented for review, since petitioner never made any application to Lincoln University curators for the establishment of a law course in that institution; and, therefore, it is impossible to know whether the curators of Lincoln University, had he knocked at the door, would have immediately established a law course there, rendering it unnecessary for him to go out-of-state for a legal education.

Mandamus against respondents was not a proper remedy, because petitioner must exhaust his administrative remedies before seeking extraordinary relief; and this he failed to do. Petitioner is in no position to appeal to the courts for any remedy, and certainly not for mandamus, to compel the board of curators of Lincoln University to provide him with the opportunity for legal education which he says he desires, but which he has never requested from the authorities charged with the duty to provide it for him. A fortiori, he could not appeal to the courts for mandamus to compel the board of curators of the University of Missouri to provide him with a legal education which he has not requested from the authorities charged with the duty to provide it for him.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Petitioner Lloyd Gaines, a negro, was refused admission to the School of Law at the State University of Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought this action for mandamus to compel the curators of the University to admit him. On final hearing, an alternative writ was quashed and a peremptory writ was denied by the Circuit Court. The Supreme Court of the State affirmed the judgment. 113 S. W. 2d 783. We granted certiorari, October 10, 1938.

Petitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor of Arts at the Lincoln University, an institution maintained by the State of Missouri for the higher education of negroes. That University has no law school. Upon the filing of his application for admission to the law school of the University of Missouri, the registrar advised him to communicate with the president of Lincoln University and the latter directed petitioner's attention to § 9622 of the Revised Statutes of Missouri (1929), providing as follows:

“Sec. 9622. May arrange for attendance at university of any adjacent state Tuition fees.- Pending the full development of the Lincoln university, the board of curators shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university and to pay the reasonable tuition fees for such attendance; provided that whenever the board of curators deem it advisable they shall have the power to open any necessary school or department. (Laws 1921, p. 86, § 7.)”

Petitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It was admitted on the trial that petitioner's "work and credits at the Lincoln University would qualify him for admission to the School of Law of the University of Missouri if he were found otherwise eligible.” He was refused admission upon the ground that it was "contrary to the constitution, laws and public policy of the State to admit a negro as a student in the University of Missouri.” It appears that there are schools of law in connection with the state universities of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where nonresident negroes are admitted.

The clear and definite conclusions of the state court in construing the pertinent state legislation narrow the issue. The action of the curators, who are representatives of the State in the management of the state university (R. S. Mo., § 9625), must be regarded as state action. The state constitution provides that separate free public schools shall be established for the education of children of African descent (Art. XI, § 3), and by statute separate high school facilities are supplied for colored students equal to those provided for white students (R. S. Mo.,

* Ex parte Virginia, 100 U. S. 339, 346, 347; Neal v. Delaware, 103 l'. S. 370, 397; Carter v. Texas, 177 U. S. 442, 447; Norris v. Alabama, 294 U. S. 587, 589.

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