Missouri ex rel. Gaines v. Canada/Dissent McReynolds

Separate opinion of Mr. Justice McREYNOLDS.

Considering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable conclusion and its judgment should be affirmed. That court well understood the grave difficulties of the situation and rightly refused to upset the settled legislative policy of the State by directing a mandamus.

In Cumming v. Richmond County Board of Education, 175 U.S. 528, 545, 20 S.Ct. 197, 201, 44 L.Ed. 262, this Court through Mr. Justice Harlan declared-'The education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.' Gong Lum v. Rice, 275 U.S. 78, 85, 48 S.Ct. 91, 93, 72 L.Ed. 172-opinion by Mr. Chief Justice Taft-asserts: 'The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear.'

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. Whether by some other course it may be possible for her to avoid condemnation is matter for conjecture.

The State has offered to provide the negro petitioner opportunity for study of the law-if perchance that is the thing really desired-b paying his tuition at some nearby school of good standing. This is far from unmistakable disregard of his rights and in the circumstances is enough to satisfy any reasonable demand for specialized training. It appears that never before has a negro applied for admission to the Law School and none has ever asked that Lincoln University provide legal instruction.

The problem presented obviously is a difficult and highly practical one. A fair effort to solve it has been made by offering adequate opportunity for study when sought in good faith. The State should not be unduly hampered through theorization inadequately restrained by experience.

This proceeding commenced in April, 1936. Petitioner then twenty-four years old asked mandamus to compel his admission to the University in September, 1936, notwithstanding plain legislative inhibition. Mandamus is not a writ of right but is granted only in the court's discretion upon consideration of all the circumstances. Duncan Townsite Company v. Lane, Secretary of the Interior, 245 U.S. 308, 311, 38 S.Ct. 99, 100, 62 L.Ed. 309; United States ex rel. Arant v. Lane, Secretary of the Interior, 249 U.S. 367, 371, 39 S.Ct. 293, 294, 63 L.Ed. 650.

The Supreme Court of Missouri did not consider the propriety of granting the writ under the theory of the law now accepted here. That, of course, will be matter open for its consideration upon return of the cause.

Mr. Justice BUTLER concurs in the above views.