331 F.2d 841
William V. PARKER, Dean Graduate School of Auburn University Appellant,
Harold A. FRANKLIN and United States of America, Appellees.
United States Court of Appeals Fifth Circuit.
May 18, 1964.
James J. Carter, Montgomery, Ala., Thomas D. Samford, III, Samford & Samford, Opelika, Ala., Thomas B. Hill, Jr., Hill, Hill, Stovall & Carter, Montgomery, Ala., for appellant.
Fred D. Gray, Montgomery, Ala., Constance Baker Motley, Jack Greenberg, James M. Nabrit, III, New York City, for appellee Franklin.
Harold H. Greene, David Rubin, Peter S. Smith, Attys., Dept. of Justice, Burke Marshall, Asst. Atty. Gen., Ben Hardeman, U. S. Atty., Washington, D. C., for the United States.
Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and McRAE,* District Judge.
This Court adopts the opinion of the Honorable Frank M. Johnson as the opinion of this Court, and affirms the judgment of the Court with the following modification.
The trial court found that the appellee Franklin had been denied admission to the graduate school of Auburn University for one reason only: "Franklin was rejected on one basis: He had not been graduated from a college that held an accredited status with Southern Association of Colleges and Schools."1 The court made no finding of fact that the appellant had failed expeditiously to consider, process, or accept applications of Negro applicants upon the same terms as white or that he had failed or refused to consider, process or accept applications of qualified Negroes because of the race of such applicants. We think the record discloses that, once the accreditation requirement was struck down by the court, the handling of the application by appellee indicates that there was no such failure on the part of the appellant. Thus, we conclude that paragraphs numbered 4 and 5 of the injunctive order of the court, not being based on findings of fact, should be eliminated.
As thus modified the order is affirmed.