Transcripts
Transcripts
Oliver Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas, et al.
Washington, D. C.
Tuesday, December 09, 1952
Tuesday, December 09, 1952
No. 8
Appellants
OLIVER BROWN, MRS. RICHARD LAWTON, MRS. SADIE EMMANUEL, ET AL.
Appellees
BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL.
The above-entitled cause came on for oral argument at 1:35 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
ROBERT L. CARTER, ESQ., on behalf of the Appellants.
PAUL E. WILSON, ESQ., on behalf of the Appellees.
PAUL E. WILSON, ESQ., on behalf of the Appellees.
PROCEEDINGS
Case No. 8, Oliver Brown and others v. the Board of Education of Topeka, Shawnee County, Kansas.
Counsel are present.
Mr. Carter.
OPENING ARGUMENT OF ROBERT L. CARTER, ESQ.,
ON BEHALF OF THE APPELLANTS
ON BEHALF OF THE APPELLANTS
This case is here on direct appeal pursuant to Title 28, section 1253, 2101(b), from the final judgment of a statutory three-judge court, District Court for the District of Kansas, denying appellants' motion, application for a permanent injunction to restrain the enforcement of Chapter 72-1724 of the General Statutes of Kansas, on the grounds of that statute's fatal conflict with the requirements and guarantees of the Fourteenth Amendment.
The statute in question empowers boards of education in cities of the first class in Kansas to maintain and operate public elementary schools on a segregated basis, with the exception of Kansas City, Kansas, which is empowered to maintain segregated public high schools also.
The law of Kansas is clear, as construed by the highest court of that State, that except for this statutory authority, the appellees in this instance would have no power to make any distinction whatsoever in public schools among children on the basis of race and color; or, to put it another way, the law of Kansas is this: that it is a violation of state law for any state officer to use race as a factor in affording educational opportunities unless that authority is specifically, clearly, and expressly granted by the legislature.
The state cases, which are set forth and would set this out, are cited at page two of our brief.
Now, it is to be noted that this statute prohibits any type of color discrimination in high schools, with the exception of Kansas City, Kansas.
The Topeka school system is operated on a six-three-three plan: elementary schools going through the sixth grade, thereafter junior high schools through the ninth grade, and thereafter senior high schools.
So that in this instance, appellants are required to attend segregated elementary schools through the sixth grade, but thereafter they go to high schools without any determination being made as to which school they will attend on the basis of race. If appellants are of Negro origin, they are minors who are not eligible at the present time to attend the public elementary schools in Topeka.
The appellees are empowered by state law to maintain the public school system in Topeka, Kansas. The City of Topeka has been divided into eighteen territorial divisions for public school purposes. In each of these divisions appellees maintain one school for white residents; in addition, they maintain four segregated schools for Negroes.
It is the gravamen of our complaint—it was the gravamen of our complaint below, and it is the gravamen of our appeal here—that the appellees have deprived—we have been deprived of the equal protection of the laws where the statute requires appellants to attend public elementary schools on a segregated basis, because the act of separation and the act of segregation in and of itself denies them equal educational opportunities which the Fourteenth Amendment secures.
In the answer below, the appellees, the school board, defended this action on the ground that they were acting pursuant to the statute; that appellants were not entitled to attend the elementary schools in Kansas, the eighteen elementary schools, which they maintained for white children, solely because of race and color, and that they wouldn't be admitted into those schools because they were Negroes.
The State of Kansas in the court below, and in its brief filed here, defends the constitutionality of the statute in question, and affirmatively asserts that the state has the power to authorize the imposition of racial distinction for public school purposes.
The only state or federal constitutional limitation which the State of Kansas concedes on that power is that when these distinctions are imposed the school physical facilities for Negro children must be equal. With that limitation, they say that there can be no constitutional limitation on their power to impose racial distinctions.
A three-judge court was convened in the court below, pursuant to Title 28 of the United States Code, section 2281 and 2284, and there a trial on the merits took place.
At the trial, appellants introduced evidence designed to conclusively demonstrate that the act of segregation in and of itself made the educational opportunities which were provided in the four schools maintained for Negroes inferior to those in the eighteen schools which were maintained for white children, because of racial segregation imposed which severely handicapped Negro children in their pursuit of knowledge, and made it impossible for them to secure equal education.
In the course of the development of this uncontroverted testimony, appellants showed that they and other Negro children similarly situated were placed at a serious disadvantage with respect to their opportunity to develop citizenship skills, and that they were denied the opportunity to learn to adjust personally and socially in a setting comprising a cross section of the dominant population of the city.
It was testified that racial segregation, as practiced in the City of Topeka, tended to relegate appellants and their group to an inferior caste; that it lowered their level of aspiration; that it instilled feelings of insecurity and inferiority with them, and that it retarded their mental and educational development; and for these reasons, the testimony said, it was impossible for the Negro children who were set off in these four schools to secure, in fact or in law, an education which was equal to that available to white children in the eighteen elementary schools maintained for them.
On August 3, the district court filed its opinion, its findings of fact and its conclusions of law, and a final decree, all of which are set out at page 238 of the record.
We accept and adopt as our own all of the findings of fact of the court below, and I wish specifically to call to the Court's attention the findings which are findings four, five and six, which are set out at page 245, in which the court found that there was no material difference between the four schools maintained for Negroes and the eighteen schools maintained for white children with respect to physical facilities, the educational qualifications of teachers, and the courses of study prescribed.
Here we abandon any claim, in pressing our attack on the unconstitutionality of this statute—we abandon any claim of any constitutional inequality which comes from anything other than the act of segregation itself. In short, the sole basis for our appeal here on the constitutionality of the statute of Kansas is that it empowers the maintenance and operation of racially segregated schools, and under that basis we say, on the basis of the fact that the schools are segregated, that Negro children are denied equal protection of the laws, and they cannot secure equality in educational opportunity.
This the court found as a fact, and I will go into that finding, which is also set out on page 25 of the brief [Statement as to Jurisdiction], later in the development of my argument. But suffice it to say for this purpose that, although the court found that racial segregation created educational inequality in fact, it concluded, as a matter of law, that the only type of educational inequality which was cognizable under the Constitution was an educational inequality which stems from material and physical factors; and absent any inequality of that level, the court said:
We are bound by Plessy v. Ferguson, and Gong Lum v. Rice to hold in appellees' favor and uphold the constitutionality of that statute.
The statute in question empowers boards of education in cities of the first class in Kansas to maintain and operate public elementary schools on a segregated basis, with the exception of Kansas City, Kansas, which is empowered to maintain segregated public high schools also.
The law of Kansas is clear, as construed by the highest court of that State, that except for this statutory authority, the appellees in this instance would have no power to make any distinction whatsoever in public schools among children on the basis of race and color; or, to put it another way, the law of Kansas is this: that it is a violation of state law for any state officer to use race as a factor in affording educational opportunities unless that authority is specifically, clearly, and expressly granted by the legislature.
The state cases, which are set forth and would set this out, are cited at page two of our brief.
Now, it is to be noted that this statute prohibits any type of color discrimination in high schools, with the exception of Kansas City, Kansas.
The Topeka school system is operated on a six-three-three plan: elementary schools going through the sixth grade, thereafter junior high schools through the ninth grade, and thereafter senior high schools.
So that in this instance, appellants are required to attend segregated elementary schools through the sixth grade, but thereafter they go to high schools without any determination being made as to which school they will attend on the basis of race. If appellants are of Negro origin, they are minors who are not eligible at the present time to attend the public elementary schools in Topeka.
The appellees are empowered by state law to maintain the public school system in Topeka, Kansas. The City of Topeka has been divided into eighteen territorial divisions for public school purposes. In each of these divisions appellees maintain one school for white residents; in addition, they maintain four segregated schools for Negroes.
It is the gravamen of our complaint—it was the gravamen of our complaint below, and it is the gravamen of our appeal here—that the appellees have deprived—we have been deprived of the equal protection of the laws where the statute requires appellants to attend public elementary schools on a segregated basis, because the act of separation and the act of segregation in and of itself denies them equal educational opportunities which the Fourteenth Amendment secures.
In the answer below, the appellees, the school board, defended this action on the ground that they were acting pursuant to the statute; that appellants were not entitled to attend the elementary schools in Kansas, the eighteen elementary schools, which they maintained for white children, solely because of race and color, and that they wouldn't be admitted into those schools because they were Negroes.
The State of Kansas in the court below, and in its brief filed here, defends the constitutionality of the statute in question, and affirmatively asserts that the state has the power to authorize the imposition of racial distinction for public school purposes.
The only state or federal constitutional limitation which the State of Kansas concedes on that power is that when these distinctions are imposed the school physical facilities for Negro children must be equal. With that limitation, they say that there can be no constitutional limitation on their power to impose racial distinctions.
A three-judge court was convened in the court below, pursuant to Title 28 of the United States Code, section 2281 and 2284, and there a trial on the merits took place.
At the trial, appellants introduced evidence designed to conclusively demonstrate that the act of segregation in and of itself made the educational opportunities which were provided in the four schools maintained for Negroes inferior to those in the eighteen schools which were maintained for white children, because of racial segregation imposed which severely handicapped Negro children in their pursuit of knowledge, and made it impossible for them to secure equal education.
In the course of the development of this uncontroverted testimony, appellants showed that they and other Negro children similarly situated were placed at a serious disadvantage with respect to their opportunity to develop citizenship skills, and that they were denied the opportunity to learn to adjust personally and socially in a setting comprising a cross section of the dominant population of the city.
It was testified that racial segregation, as practiced in the City of Topeka, tended to relegate appellants and their group to an inferior caste; that it lowered their level of aspiration; that it instilled feelings of insecurity and inferiority with them, and that it retarded their mental and educational development; and for these reasons, the testimony said, it was impossible for the Negro children who were set off in these four schools to secure, in fact or in law, an education which was equal to that available to white children in the eighteen elementary schools maintained for them.
On August 3, the district court filed its opinion, its findings of fact and its conclusions of law, and a final decree, all of which are set out at page 238 of the record.
We accept and adopt as our own all of the findings of fact of the court below, and I wish specifically to call to the Court's attention the findings which are findings four, five and six, which are set out at page 245, in which the court found that there was no material difference between the four schools maintained for Negroes and the eighteen schools maintained for white children with respect to physical facilities, the educational qualifications of teachers, and the courses of study prescribed.
Here we abandon any claim, in pressing our attack on the unconstitutionality of this statute—we abandon any claim of any constitutional inequality which comes from anything other than the act of segregation itself. In short, the sole basis for our appeal here on the constitutionality of the statute of Kansas is that it empowers the maintenance and operation of racially segregated schools, and under that basis we say, on the basis of the fact that the schools are segregated, that Negro children are denied equal protection of the laws, and they cannot secure equality in educational opportunity.
This the court found as a fact, and I will go into that finding, which is also set out on page 25 of the brief [Statement as to Jurisdiction], later in the development of my argument. But suffice it to say for this purpose that, although the court found that racial segregation created educational inequality in fact, it concluded, as a matter of law, that the only type of educational inequality which was cognizable under the Constitution was an educational inequality which stems from material and physical factors; and absent any inequality of that level, the court said:
We are bound by Plessy v. Ferguson, and Gong Lum v. Rice to hold in appellees' favor and uphold the constitutionality of that statute.
We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.
We say that for two reasons: First, we say that a division of citizens by the states for public school purposes on the basis of race and color effects an unlawful and an unconstitutional classification within the meaning of the equal protection clause; and, secondly, we say that where public school attendance is determined on the basis of race and color, that it is impossible for Negro children to secure equal educational opportunities within the meaning of the equal protection of the laws.
With regard to the first basis of our attack on the statute, Kansas has authorized, under certain conditions, certain boards of education to divide its schools at the elementary school level for the purpose of giving them educational opportunities.
It is our position that any legislative or governmental classification must fall with an even hand on all persons similarly situated. This Court has long held that this is the law with respect to a lawful classification, and in order to assure that this evenhandedness of the law in terms of classifications exists, this Court has set standards which say that where the legislature of a state seeks to make a classification among persons, that that classification and those distinctions must rest upon some differentiation fairly related to the object which the state seeks to regulate.
Now, in this case the Negro children are—and other Negro children similarly situated are—put in one category for public school purposes, solely on the basis of race and color, and white children are put in another category for the purpose of determining what schools they will attend.
With regard to the first basis of our attack on the statute, Kansas has authorized, under certain conditions, certain boards of education to divide its schools at the elementary school level for the purpose of giving them educational opportunities.
It is our position that any legislative or governmental classification must fall with an even hand on all persons similarly situated. This Court has long held that this is the law with respect to a lawful classification, and in order to assure that this evenhandedness of the law in terms of classifications exists, this Court has set standards which say that where the legislature of a state seeks to make a classification among persons, that that classification and those distinctions must rest upon some differentiation fairly related to the object which the state seeks to regulate.
Now, in this case the Negro children are—and other Negro children similarly situated are—put in one category for public school purposes, solely on the basis of race and color, and white children are put in another category for the purpose of determining what schools they will attend.
Mr. Carter, I do not know whether I have followed you or all the facts on this. Was there a finding that the only basis of classification was race or color?
It was admitted—the appellees admitted in their answer—that the only reason that they would not permit Negro children to attend the eighteen white schools was because they were Negro.
Then we accept on this record that the only showing is that the classification here was solely on race and color?
Yes, sir. I think the state itself concedes this is so in its brief.
Now, we say that the only basis for this division is race, and that under the decisions of this Court that no state can use race, and race alone, as a basis upon which to ground any legislative—any lawful constitutional authority—and particularly this Court has indicated in a number of opinions that this is so because it is not felt that race is a reasonable basis upon which to ground acts; it is not a real differentiation, and it is not relevant and, in fact, this Court has indicated that race is arbitrary and an irrational standard, so that I would also like to point out, if I may, going to and quoting the statute, that the statute itself shows that this is so. I am reading from the quote of the statute from page three of our brief. The statute says:
The Board of Education … may organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas; no discrimination on account of color shall be made in high schools except as provided herein.
We say that on the face of the statute this is explicit recognition of the fact that the authorization which the state gave to cities of the first class, and so forth, to make this segregation on the basis of race, carried with it the necessary fact that they were permitted to discriminate on the basis of race and color, and that the statute recognizes that these two things are interchangeable and cannot be separated.
Now, without further belaboring our classification argument, our theory is that if the normal rules of classification, the equal protection doctrine of classification, apply to this case—and we say they should be applied—that this statute is fatally defective, and that on this ground, and this ground alone, the statute should be struck down.
We also contend, as I indicated, a second ground for the unconstitutionality of the statute. A second part of the main contention is that this type of segregation makes it impossible for Negro children and appellants in this case to receive equal educational opportunities; and that in this case the court below found this to be so as a fact; and I would turn again to quote on page 245 of the record, finding No. 8, where the court in its findings said—and I quote:
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to restrain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.
Now, as we had indicated before, this finding is amply supported by the uncontroverted testimony, and we feel that what the court did in this case in approaching this finding was that it made the same approach on a factual basis that this Court made in the McLaurin and Sweatt cases.
It is our contention, our view, that when this Court was confronted with the question of whether McLaurin and Sweatt were afforded equal educational opportunities, that it looked at the restrictions imposed to find out whether or not they in any way impaired the quality of education which was offered and, upon finding that the quality of education that had been offered under the segregated conditions—that this Court held in both instances that those racial restrictions could not stand.
The court below, based on this finding, starts its examination in this same way. It finds that the restrictions which the appellants complained of place them and other Negro children in the class at a disadvantage with respect to the quality of education which they would receive, and that as a result of these restrictions Negro children are—the development of their minds and the learning process is impaired and damaged.
We take the position that where there exists educational inequality, in fact, that it necessarily follows that educational inequality in the law is also present.
But the court below felt, as I indicated before, that the only concern of the Constitution with the question of educational equality was that the physical facilities afforded had to be equal; and absent any inequality with regard to physical facilities, they say, "We are bound by Plessy v. Ferguson, and Gong Lum v. Rice."
It is also clear from the court's opinion that it was in a great deal of confusion and doubt and, perhaps, even in torture in reaching these results.
I would again like to quote from the record the court's opinion, on page 243, and the court says:
If segregation within a school as in the McLaurin case is a. denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grades.
We say that but for the constraint which the court feels was imposed upon it by the McLaurin case—
Now, we say that the only basis for this division is race, and that under the decisions of this Court that no state can use race, and race alone, as a basis upon which to ground any legislative—any lawful constitutional authority—and particularly this Court has indicated in a number of opinions that this is so because it is not felt that race is a reasonable basis upon which to ground acts; it is not a real differentiation, and it is not relevant and, in fact, this Court has indicated that race is arbitrary and an irrational standard, so that I would also like to point out, if I may, going to and quoting the statute, that the statute itself shows that this is so. I am reading from the quote of the statute from page three of our brief. The statute says:
The Board of Education … may organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas; no discrimination on account of color shall be made in high schools except as provided herein.
We say that on the face of the statute this is explicit recognition of the fact that the authorization which the state gave to cities of the first class, and so forth, to make this segregation on the basis of race, carried with it the necessary fact that they were permitted to discriminate on the basis of race and color, and that the statute recognizes that these two things are interchangeable and cannot be separated.
Now, without further belaboring our classification argument, our theory is that if the normal rules of classification, the equal protection doctrine of classification, apply to this case—and we say they should be applied—that this statute is fatally defective, and that on this ground, and this ground alone, the statute should be struck down.
We also contend, as I indicated, a second ground for the unconstitutionality of the statute. A second part of the main contention is that this type of segregation makes it impossible for Negro children and appellants in this case to receive equal educational opportunities; and that in this case the court below found this to be so as a fact; and I would turn again to quote on page 245 of the record, finding No. 8, where the court in its findings said—and I quote:
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to restrain the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.
Now, as we had indicated before, this finding is amply supported by the uncontroverted testimony, and we feel that what the court did in this case in approaching this finding was that it made the same approach on a factual basis that this Court made in the McLaurin and Sweatt cases.
It is our contention, our view, that when this Court was confronted with the question of whether McLaurin and Sweatt were afforded equal educational opportunities, that it looked at the restrictions imposed to find out whether or not they in any way impaired the quality of education which was offered and, upon finding that the quality of education that had been offered under the segregated conditions—that this Court held in both instances that those racial restrictions could not stand.
The court below, based on this finding, starts its examination in this same way. It finds that the restrictions which the appellants complained of place them and other Negro children in the class at a disadvantage with respect to the quality of education which they would receive, and that as a result of these restrictions Negro children are—the development of their minds and the learning process is impaired and damaged.
We take the position that where there exists educational inequality, in fact, that it necessarily follows that educational inequality in the law is also present.
But the court below felt, as I indicated before, that the only concern of the Constitution with the question of educational equality was that the physical facilities afforded had to be equal; and absent any inequality with regard to physical facilities, they say, "We are bound by Plessy v. Ferguson, and Gong Lum v. Rice."
It is also clear from the court's opinion that it was in a great deal of confusion and doubt and, perhaps, even in torture in reaching these results.
I would again like to quote from the record the court's opinion, on page 243, and the court says:
If segregation within a school as in the McLaurin case is a. denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grades.
We say that but for the constraint which the court feels was imposed upon it by the McLaurin case—
We will recess for lunch.
A short recess was taken.
AFTERNOON SESSION
Mr. Carter?
Just before the recess, I was attempting to show that in the opinion of the court below, that it was clear from the opinion that the court felt that the rule of law applicable in the McLaurin and Sweatt cases should apply here, but felt that it was constrained and prevented from doing that by virtue of Plessy v. Ferguson and Gong Lum v. Rice. We believe that the court below was wrong in this conclusion. We think that the rules of law applicable to McLaurin and Sweatt do apply, and that there are no decisions of this Court which require a contrary result.
Was there any evidence in the record to show the inability, the lesser ability, of the child in the segregated schools?
Yes, sir, there was a great deal of testimony on the impact of racial distinctions and segregation on the emotional and mental development of a child. Now, this is, in summary, Finding 8 of the court, a summarization of the evidence that we introduced on that.
And the findings go to the ability to learn or merely on the emotional reaction?
The finding says that—
I know about the finding, but the evidence?
The evidence, yes, sir. The evidence went to the fact that in the segregated school, because of these emotional impacts that segregation has, that it does impair the ability to learn, that you are not able to learn as well as you do if you were in a mixed school; and that, further than that, you are barred from contact with members of the dominant group and, therefore, your total educational content is somewhat lower than it would be ordinarily.
Would those citations be in your brief on page nine?
Yes, sir. In fact, what we attempted to do was to pick up in summary and refer the Court to the record of the various disabilities to which our witnesses testified, and we covered the question of the content of education. They are all set out on page nine of our brief as citations.
It is your position that there is a great deal more to the educational process even in the elementary schools than what you read in the books?
Yes, sir, that is precisely the point.
And it is on that basis which makes a real difference whether it is segregated or not?
Yes, sir. We say that the question of your physical facilities is not enough. The Constitution does not, in terms of protecting, giving equal protection of the laws with regard to equal educational opportunities, does not stop with the fact that you have equal physical facilities, but it covers the whole educational process.
The findings in this case did not stop with equal physical facilities, did they?
No, sir, the findings did not stop, but went beyond that. But, as I indicated, the Court did not feel that it could go in the law beyond physical facilities.
Of the two cases which the court below indicates have kept it from ruling as a matter of law in this case that educational, equal educational, opportunities were not afforded, the first is the Plessy v. Ferguson case.
Of the two cases which the court below indicates have kept it from ruling as a matter of law in this case that educational, equal educational, opportunities were not afforded, the first is the Plessy v. Ferguson case.
It is our position that Plessy v. Ferguson is not in point here; that it had nothing to do with educational opportunities whatsoever. We further take the position that, whatever the court below may have felt about the reach of the Plessy case, that this Court in the Sweatt case made it absolutely clear that Plessy v. Ferguson had nothing to do with the question of education.
The Court, in its opinion, after discussing the Sipuel case, the Fisher case, and the Gaines case, in the Sweatt opinion said that these are the only cases in this Court which control the issue of racial distinction in state-supported graduate and professional education. We think this was a pointed and deliberate omission in Plessy, and that the Court is saying that Plessy v. Ferguson certainly has nothing to do with the validity of racial distinctions in graduate and professional schools.
By the same logic, we say that, since Plessy had nothing to do with the higher level of education, it certainly has nothing to do with equal educational opportunities in the elementary grades. For that reason we think that Plessy need not be considered; that it has nothing to do with this case, and it is out of the case entirely.
By the same logic, we say that, since Plessy had nothing to do with the higher level of education, it certainly has nothing to do with equal educational opportunities in the elementary grades. For that reason we think that Plessy need not be considered; that it has nothing to do with this case, and it is out of the case entirely.
Well, in regard to the findings, it was found that the physical facilities, curricula, courses of study, qualifications and quality of teachers, as well as other educational facilities in the two sets of schools are comparable?
Yes, sir.
And the only item of discrimination, an item of discrimination, was transportation by bus for the colored students without that facility for the white students.
That is true. But the court—these are the physical factors that the court found; and then the court went on to show how segregation made the educational opportunities inferior, and this, we think, is the heart of our case.
That is all that you really have here to base your segregation issue upon.
That is right.
I mean, of course, you could have the issue as to equal facilities on the other, but so far as all the other physical facilities, curricula, teachers, and transportation and all that, and so forth, there is a finding that they are equal?
Yes, sir, and we do not controvert that finding.
The other case that the court below cited was the Gong Lum v. Rice case. We do not think that that case is controlling here either. In that case it is true that what was involved was racial distinction in the elementary grades.
The other case that the court below cited was the Gong Lum v. Rice case. We do not think that that case is controlling here either. In that case it is true that what was involved was racial distinction in the elementary grades.
Was that a Chinese student?
That was the Chinese student. But we think that case is so different from our case that it cannot control the decision in this case, because there the issue which was raised by petitioner of Chinese origin was that she did not at all contest the state's power to enforce a racial classification. She conceded that the state had such power. What petitioner was objecting to was the fact that, as a Chinese, a child of Chinese origin, that she was required to have contact with Negroes for school purposes which, under the segregation laws of Mississippi, white children were protected against. She said that if—her contention was that if there were some benefits or harms that would flow to white children from being forced to have contacts with Negroes, that she had an equal right to benefit or to be free of that harm from such contact, and that to require her to be classified among Negroes for school purpose was a denial to her of the equal protection of the laws.
Our contention is that in that instance that case cannot control a decision when here we are contesting the power of the state to make any classification whatsoever, and we think that what the court did below, this Court, in defining what was the issue in this case, said that the question was whether an American citizen of Chinese origin is denied equal protection and classed among the colored races for public school purposes, and furnished equal educational opportunities. It said that, were this a new question:
We would think it would need our full consideration, and it would be necessary for full argument, but it is not a new question. It is the same question that we have many times decided to be within the purview of the States, without the intervention of the Federal Constitution.
Now, we do not believe that Gong Lum can be considered as a precedent contrary to the position we take here. Certainly it cannot be conceded as such a precedent until this Court, when the issue is squarely presented to it, on the question of the power of the state, examines the question and makes a determination in the state's favor; and only in that instance do we feel that Gong Lum can be any authority on this question.
Our contention is that in that instance that case cannot control a decision when here we are contesting the power of the state to make any classification whatsoever, and we think that what the court did below, this Court, in defining what was the issue in this case, said that the question was whether an American citizen of Chinese origin is denied equal protection and classed among the colored races for public school purposes, and furnished equal educational opportunities. It said that, were this a new question:
We would think it would need our full consideration, and it would be necessary for full argument, but it is not a new question. It is the same question that we have many times decided to be within the purview of the States, without the intervention of the Federal Constitution.
Now, we do not believe that Gong Lum can be considered as a precedent contrary to the position we take here. Certainly it cannot be conceded as such a precedent until this Court, when the issue is squarely presented to it, on the question of the power of the state, examines the question and makes a determination in the state's favor; and only in that instance do we feel that Gong Lum can be any authority on this question.
Mr. Carter, while what you say may be so, nevertheless, in its opinion the Court in Gong Lum did rest on the fact that this issue had been settled by a large body of adjudications going back to what was or might fairly have been called an abolitionist state, the Commonwealth of Massachusetts, going back to the Roberts case.
Yes, sir.
I want to ask you—and may I say, particularly in a case of this sort, a question does not imply an answer; a question merely implies an eager desire for information—I want to ask you whether in the light of that fact—this was a unanimous opinion of the Court which at the time had on its membership Justice Holmes, Justice Brandeis, Justice Stone—and I am picking those out not invidiously, but as judges who gave great evidence of being very sensitive and alert to questions of so-called civil liberties—and I should like to ask you whether you think that decision rested on the concession by the petitioner in that case, and the problem of segregation was not involved and, in fact, that underlay the whole decision, the whole adjudication—whether you think a man like Justice Brandeis would have been foreclosed by the concession of the parties?
Well, Your Honor, in all honesty, I would say that only partially would I consider that to be true. I think that what the Court did in Gong Lum, the Court was presented with the issue or the question, and it assumed that facilities were equal; and the Court at that time, with regard to this issue which was raised, although they conceded the power and did not have to make any full examination, it felt after reviewing those other decisions that the only question that they would have to consider or settle was the question of equal facilities.
Yes. But the Court took as settled by a long course of decisions that this question was many times decided, that this power was within the constitutional power of the state legislatures, this power of segregation.
Yes, sir.
The more specific question I would like to put to you is this: Do we not have to face the fact that what you are challenging is something that was written into the public law and adjudications of courts, including this Court, by a large body of decisions and, therefore, the question arises whether, and under what circumstances, this Court should now upset so long a course of decisions? Don't we have to face that, instead of chipping away and saying, "This was dictum," and "This was a mild dictum," and "This was a strong dictum," and is anything to be gained by concealing that central fact, that central issue?
Well, I do not think, Your Honor, that you have to face that issue. My view is that, with regard to this particular question this Court decided with Sweatt v. Painter—in Sweatt v. Painter in this Court, the only decision here which was decided on the question of "separate but equal" was a dictum coming out from Plessy v. Ferguson, and this Court in the Sweatt case, it seems to me very carefully to have decided that it did not have to face the question because Plessy v. Ferguson was not involved.
I think in this particular case the only decision of this Court which can be said to have decided a question of the validity of racial distinction in elementary schools is this case that I am discussing. Now, I think that, in view of the concession, in view of the fact that the Court felt this was not a case of first impression, although I think it was and is a case of first impression in this Court at the time it came here, that this Court did not give the arguments at all a full consideration which we think that they require.
I think in this particular case the only decision of this Court which can be said to have decided a question of the validity of racial distinction in elementary schools is this case that I am discussing. Now, I think that, in view of the concession, in view of the fact that the Court felt this was not a case of first impression, although I think it was and is a case of first impression in this Court at the time it came here, that this Court did not give the arguments at all a full consideration which we think that they require.
You are quite right in suggesting that this question explicitly as to segregation in the primary grades has not been adjudicated by this Court. This question is, in that frame, in that explicitness, unembarrassed by physical inequalities, and so on, before the Court for the first time.
But a long course of legislation by the states, and a long course of utterances by this Court and other courts in dealing with the subject, from the point of view of relevance as to whether a thing is or is not within the prohibition of the Fourteenth Amendment, is from my point of view almost as impressive as a single decision, which does not mean that I would be controlled in a constitutional case by a direct adjudication; but I do think we have to face in this case the fact that we are dealing with a long-established historical practice by the states, and the assumption of the exercise of power which not only was written on the statute books, but has been confirmed and adjudicated by state courts, as well as by expressions of this Court.
But a long course of legislation by the states, and a long course of utterances by this Court and other courts in dealing with the subject, from the point of view of relevance as to whether a thing is or is not within the prohibition of the Fourteenth Amendment, is from my point of view almost as impressive as a single decision, which does not mean that I would be controlled in a constitutional case by a direct adjudication; but I do think we have to face in this case the fact that we are dealing with a long-established historical practice by the states, and the assumption of the exercise of power which not only was written on the statute books, but has been confirmed and adjudicated by state courts, as well as by expressions of this Court.
Well, Mr. Justice Frankfurter, I would say on that that I was attempting here to take the narrow position with regard to this case, and to approach it in a way that I thought the Court approached the decision in Sweatt and McLaurin. I have no hesitancy in saying to the Court that if they do not agree that the decision can be handed down in our favor on this basis of this approach, that I have no hesitancy in saying that the issue of "separate but equal" should be faced and ought to be faced, and that in our view the "separate but equal" doctrine should be overruled. But as I said before, as the Court apparently approached Sweatt and McLaurin, it did not feel it had to meet that issue, and we do not feel it has to meet it here. But if the Court has reached a contrary conclusion in regard to it, then we, of course, take the position that the "separate but equal" doctrine should be squarely overruled.
May I trouble you to clarify that? Do I understand from what you have just said that you think this Kansas law is bad on the record, is bad in the Kansas case, on the "separate but equal" doctrine, and that even by that test this law must fall?
No, sir, I think—
Then why do we not have to face the "separate but equal" doctrine?
Because insofar as this Court is concerned, as I have indicated before, this Court, with the exception of Gong Lum, has not at the elementary level adopted the "separate but equal" doctrine. There is no decision in this Court, unless the Court feels that Gong Lum v. Riceis that decision.
As I attempted to indicate before, that was a case of first impression, although the Court did not seem to think it was, and that here actually we are now being presented—the Court is now being presented—with a case of first impression, when it has a full record which you can give full consideration to, and that Gong Lum, which did not squarely raise the issue, ought not to be controlling.
All I am saying is that you do not have to overrule "separate but equal" at the elementary school level in deciding the Kansas case because you have never decided the "separate but equal" applied at the elementary school level.
As I attempted to indicate before, that was a case of first impression, although the Court did not seem to think it was, and that here actually we are now being presented—the Court is now being presented—with a case of first impression, when it has a full record which you can give full consideration to, and that Gong Lum, which did not squarely raise the issue, ought not to be controlling.
All I am saying is that you do not have to overrule "separate but equal" at the elementary school level in deciding the Kansas case because you have never decided the "separate but equal" applied at the elementary school level.
Are you saying that we can say that "separate but equal" is not a doctrine that is relevant at the primary school level? Is that what you are saying?
I think you are saying that segregation may be all right in streetcars and railroad cars and restaurants, but that is all that we have decided.
That is the only place that you have decided that it is all right.
And that education is different, education is different from that.
Yes, sir.
That is your argument, is it not? Isn't that your argument in this case?
Yes.
But how can that be your argument when the whole basis of dealing with education thus far has been to find out whether it, the "separate but equal" doctrine, is satisfied?
You are talking about the gist of the cases in this Court?
I am talking about the cases in this Court.
As I interpret the cases in this Court, Your Honor, as I interpret the Sweatt case and the McLaurin case, the question of "separate and equal," as to whether the separate and equal doctrine was satisfied, I do not believe that that test was applied there. In McLaurin there was no separation.
But take the Gaines case, take the beginning of the "separate but equal," and unless I completely misconceive the cases I have read before I came here and those in which I have participated, the test in each one of these cases was whether "separate and equal" is relevant or whether it was satisfied, and we have held in some of the cases that it was not satisfied, and that in a constitutional case we do not have to go beyond the immediate necessities of the record, and we have said as to others that for purposes of training in the law you have a mixed situation; you cannot draw that line.
Well, take the Gaines case, Your Honor; the only thing that I would say on the Gaines case is that what the Court decided in the Gaines case was that, since there were no facilities available to Negroes, that the petitioner Gaines had to be admitted to the white school.
Now, it is true that there is certain language in the Gaines case which would appear to give support to Plessy v. Ferguson, but the language in terms of the decision—you have to take the language in regard to what the decision stated in the Sipuel case—I think it is the same thing, and when we get over to Sweatt and McLaurin, we have a situation in which this Court went beyond certain physical facilities and said, "These are not as important as these other things that we cannot name," and it decided then to set standards so high that it certainly would seem to me to be impossible for a state to validly maintain segregation in law schools.
In the McLaurin case, without any question of separation, what the Court did was that you have the same teachers and so forth, so there could have been no question of his being set apart, except in the classroom, and so forth—there could be no question of the quality of instruction not being the same. This Court held that those restrictions were sufficient in and of themselves to impair McLaurin's ability to study and therefore to deprive him of the equal protection of the law.
So, in my view, although the Gaines case is a case where you have the language, the decisions really do not hinge on that.
Now, it is true that there is certain language in the Gaines case which would appear to give support to Plessy v. Ferguson, but the language in terms of the decision—you have to take the language in regard to what the decision stated in the Sipuel case—I think it is the same thing, and when we get over to Sweatt and McLaurin, we have a situation in which this Court went beyond certain physical facilities and said, "These are not as important as these other things that we cannot name," and it decided then to set standards so high that it certainly would seem to me to be impossible for a state to validly maintain segregation in law schools.
In the McLaurin case, without any question of separation, what the Court did was that you have the same teachers and so forth, so there could have been no question of his being set apart, except in the classroom, and so forth—there could be no question of the quality of instruction not being the same. This Court held that those restrictions were sufficient in and of themselves to impair McLaurin's ability to study and therefore to deprive him of the equal protection of the law.
So, in my view, although the Gaines case is a case where you have the language, the decisions really do not hinge on that.
In the Gaines case it offered what they called equal facilities, did it not?
They offered facilities out-of-state, out-of-state facilities.
But which they said were equal.
Yes.
The Court said that they were not equal.
Yes, sir; this Court said not only were they not equal, but that the state had the obligation of furnishing whatever facilities it was going to offer within the state.
Well, we did have before us in the Gaines case the problem of "separate and equal." We determined that they were not equal because they were out of the state.
Well, Your Honor, I do not conceive of "separate and equal" as being the type of offering that the State of Missouri offered when they attempted to give out-of-state aid.
Neither did this Court; but Missouri claimed that they were equal.
I am sorry, I do not think you have understood my answer. I do not conceive of the out-of-state aid which Missouri offered to petitioner Gaines to go to some institution outside of the state as being within the purview of a "separate but equal" doctrine. I think that in terms of the "separate but equal" doctrine, that there must be the segregation. The "separate but equal" doctrine, I think, concerns itself with segregation within the state and the setting up of two institutions, one for Negroes and one for whites. All the state was doing, I think, there, was that it knew that it had the obligation of furnishing some facilities to Negroes, and so it offered them this out-of-state aid. But I do not believe that actually it can be—I mean, my understanding is that this cannot be classified as a part of the "separate but equal" doctrine.
No. This Court did not classify it that way. They said it is not separate and equal to give education in another state and, therefore, "You must admit him to the University of Missouri."
The University of Missouri, yes.
Yes.
But there is another aspect of my question, namely, that we are dealing here with a challenge to the constitutionality of legislation which is not just one legislative responsibility, not just an episodic piece of legislation in one state. But we are dealing with a body of enactments by numerous states, whatever they are—eighteen or twenty—not only the South but border states and northern states, and legislation which has a long history.
Now, unless you say that this legislation merely represents man's inhumanity to man, what is the root of this legislation? What is it based on? Why was there such legislation, and was there any consideration that the states were warranted in dealing with—maybe not this way—but was there anything in life to which this legislation responds?
Well, Your Honor, I think that this legislation is clear—certain of this legislation in Kansas—that the sole basis for it is race.
Is race?
Is race.
Yes, I understand that. I understand all this legislation. But I want to know why this legislation, the sole basis of which is race—is there just some willfulness of man in the states or some, as I say, of man's inhumanity to man, some ruthless disregard of the facts of life?
As I understand the state's position in Kansas, the State of Kansas said that the reason for this legislation to be applicable in urban centers, is that although Negroes compose four percent of the population in Kansas, ninety percent of them are concentrated in the urban areas, in the cities of the first class and that Kansas has people from the North and the South with conflicting views about the question of the treatment of Negroes and about the separation and segregation, and that, therefore what they did was that they authorized, with the power that they had, they authorized these large cities where Negroes appeared in large numbers to have segregated public elementary schools.
When did that first appear in the Kansas law?
I am not sure, but I believe in 1862.
In 1862, and the next amendment was 1868?
1862, Mr. Wilson tells me. The legislation on which this statute arose was first enacted in 1862.
That was amended in 1868.
That is right. But our feeling on the reach of equal protection, the equal protection clause, is that as these appellants, as members of a minority group—whatever the majority may feel that they can do with their rights for whatever purpose, that the equal protection clause was intended to protect them against the whims, as they come and go.
How would you establish the fact that it was intended to protect them against them? How would I find out if I liked to follow your scent; that is, what the Amendment is intended to accomplish, how would I go about finding that out?
I think that this Court in, certainly since Plessy v. Ferguson—this Court, and in Shelley v. Kraemer, has repeatedly said this was the basis for the Amendment. The Amendment was intended to protect Negroes in civil and political equality with whites.
Impliedly it prohibited the doctrine of classification, I take it?
I would think, Your Honor, that without regard to the question of its effect on Negroes, that this business of classification, this Court has dealt with it time and time again.
For example, in regard to a question of equal treatment between a foreign corporation admitted to the state and a domestic corporation, where the only basis for the inequality is the question of the residence of the foreign corporation, this Court has held under its classification doctrine that there is a denial of equal protection.
For example, in regard to a question of equal treatment between a foreign corporation admitted to the state and a domestic corporation, where the only basis for the inequality is the question of the residence of the foreign corporation, this Court has held under its classification doctrine that there is a denial of equal protection.
Meaning by that that there was no rational basis for the classification?
Well, I think that our position is that there is no rational basis for classification based on that.
But do you think that you can argue that or do you think that we can justify this case by some abstract declaration?
Well, I have attempted before lunch, Your Honor, to address myself to that point, and that was one of the bases for our attack; that this was a classification, an instance of a classification, based upon race which, under these decisions of this Court, does not form a valid basis for the legislation.
Mr. Carter, you speak of equal protection. Do you make a distinction between equal protection and classification, on the one side, and due process on the other? Is that your contention, that this violates due process?
We do not contend it in our complaint. We think that it could, but we thought that equal protection was sufficient to protect us.
And do you find a distinction between equal protection and due process in this case?
I do not. I think that the Court would, in terms of equal protection and due process, decide that under the equal protection clause and, therefore, do not consider due process. But so far as my understanding of the law, I would say that there would be no real distinction between the two.
I would like to reserve the next few minutes for rebuttal.
I would like to reserve the next few minutes for rebuttal.
General Wilson.
ARGUMENT OF PAUL E. WILSON, ESQ.,
ON BEHALF OF THE APPELLEES
ON BEHALF OF THE APPELLEES
May it please the Court:
I represent the State of Kansas, who was an intervening defendant in this proceeding. The issue raised by the pleadings filed by the State in the court below was restricted solely to the matter of the constitutionality of this statute, and I want to limit my remarks to that particular phase of the subject.
This Court heretofore noted an apparent reluctance on the part of the State of Kansas to appear in this case and participate actively in these proceedings. Because of that fact, I would like to digress for a moment and explain to you the position that the State takes with regard to this litigation.
As my adversary pointed out, the effect of the Kansas statute is local only; it is not statewide. Furthermore, the statute permits, and does not require, boards of education in designated cities to maintain segregated school systems. Pursuant to that statute, the Board of Education of the City of Topeka set up and does operate a segregated school system affecting students in the elementary grades.
Now, this lawsuit in the court below was directed at the Topeka Board of Education. The school system set up and maintained by that board was under attack. The Attorney General, therefore, took the position that this action was local in nature and not of statewide concern. We did not participate actively in the trial of the case.
However, after the trial in the court below there was a change in personnel and a change in attitude on the part of the Board of Education. The Board of Education determined then that it would not resist this appeal. The Attorney General thereupon determined that he should be governed, his attitude should be governed, by the attitude taken on the local level. Consequently we did not appear.
I mention this to emphasize the fact that we have never at any time entertained any doubt about the constitutionality of our statute.
I represent the State of Kansas, who was an intervening defendant in this proceeding. The issue raised by the pleadings filed by the State in the court below was restricted solely to the matter of the constitutionality of this statute, and I want to limit my remarks to that particular phase of the subject.
This Court heretofore noted an apparent reluctance on the part of the State of Kansas to appear in this case and participate actively in these proceedings. Because of that fact, I would like to digress for a moment and explain to you the position that the State takes with regard to this litigation.
As my adversary pointed out, the effect of the Kansas statute is local only; it is not statewide. Furthermore, the statute permits, and does not require, boards of education in designated cities to maintain segregated school systems. Pursuant to that statute, the Board of Education of the City of Topeka set up and does operate a segregated school system affecting students in the elementary grades.
Now, this lawsuit in the court below was directed at the Topeka Board of Education. The school system set up and maintained by that board was under attack. The Attorney General, therefore, took the position that this action was local in nature and not of statewide concern. We did not participate actively in the trial of the case.
However, after the trial in the court below there was a change in personnel and a change in attitude on the part of the Board of Education. The Board of Education determined then that it would not resist this appeal. The Attorney General thereupon determined that he should be governed, his attitude should be governed, by the attitude taken on the local level. Consequently we did not appear.
I mention this to emphasize the fact that we have never at any time entertained any doubt about the constitutionality of our statute.
General Wilson, may I state to you that we were informed that the Board of Education would not be represented here in argument and would not file a brief, and it being a very important question, and this case having facets that other cases did not, we wanted to hear from the State of Kansas.
We are very glad to comply with the Court's request. I was simply attempting to emphasize that we did not intentionally disregard our duty to this Court.
I understand it.
As I understand it, you had turned it over to the Board of Education and expected them to appear here, is that right?
As I understand it, you had turned it over to the Board of Education and expected them to appear here, is that right?
That is correct, sir.
And when we found out that they were not going to, we did not want the State of Kansas and its viewpoint to be silent.
Now, the views of the State of Kansas can be stated very simply and very briefly: We believe that our statute is constitutional. We do not believe it violates the Fourteenth Amendment. We believe so because our supreme court, the Supreme Court of Kansas, has specifically said so. We believe that the decisions of the Supreme Court of Kansas follow and are supported by the decisions of this Court, and the decisions of many, many appellate courts in other jurisdictions.
In order to complete the perspective of the Court with respect to the Kansas school system, I should like to allude briefly to the general statutes of Kansas which provide for elementary school education. There are three types of municipal corporations in Kansas authorized to maintain public elementary schools. There is the city of the first class, cities consisting of 15,000 or more persons, of which there are twelve in the state; then there are cities of the second class, and cities of the third class, which are included within the common school districts.
Now, this statute, I want to emphasize, applies only to cities of the first class, to those cities which have populations of more than 15,000. It does authorize separate schools to be maintained for the Negro and white races in the elementary grades in those cities, with the exception of Kansas City, where a separate junior high school and high school is authorized.
My adversary has conceded, and the court below has found, that there was no substantial inequality in the educational facilities afforded by the City of Topeka to these appellants. The physical facilities were found to be the same, or substantially alike.
Not only was that finding made with regard to physical facilities, but the course of study was found to be that subscribed by state law and followed in both systems of schools. The instructional facilities were determined to be substantially equal. There was the item of distinction wherein transportation was supplied to the Negro students and not to the white students. That certainly was not an item which constituted one of discrimination against the Negro students.
Therefore, it is our theory that this case resolves itself simply to this: whether the "separate but equal" doctrine is still the law, and whether it is to be followed in this case by this Court.
My adversary has mentioned—again I want to emphasize that the Negro population in Kansas is slight. Less than four percent of the total population belong to the Negro race.
In order to complete the perspective of the Court with respect to the Kansas school system, I should like to allude briefly to the general statutes of Kansas which provide for elementary school education. There are three types of municipal corporations in Kansas authorized to maintain public elementary schools. There is the city of the first class, cities consisting of 15,000 or more persons, of which there are twelve in the state; then there are cities of the second class, and cities of the third class, which are included within the common school districts.
Now, this statute, I want to emphasize, applies only to cities of the first class, to those cities which have populations of more than 15,000. It does authorize separate schools to be maintained for the Negro and white races in the elementary grades in those cities, with the exception of Kansas City, where a separate junior high school and high school is authorized.
My adversary has conceded, and the court below has found, that there was no substantial inequality in the educational facilities afforded by the City of Topeka to these appellants. The physical facilities were found to be the same, or substantially alike.
Not only was that finding made with regard to physical facilities, but the course of study was found to be that subscribed by state law and followed in both systems of schools. The instructional facilities were determined to be substantially equal. There was the item of distinction wherein transportation was supplied to the Negro students and not to the white students. That certainly was not an item which constituted one of discrimination against the Negro students.
Therefore, it is our theory that this case resolves itself simply to this: whether the "separate but equal" doctrine is still the law, and whether it is to be followed in this case by this Court.
My adversary has mentioned—again I want to emphasize that the Negro population in Kansas is slight. Less than four percent of the total population belong to the Negro race.
What is that number?
Sir?
What is that number?
The population of the State, the total population, is approximately two million. The total Negro population is approximately 73,000.
And of those, how many are in the cities of 15,000, about nine-tenths, would you say?
Our brief says that nine-tenths of the Negro population lived in cities classified as urban. The urban classification includes those of 2,500 or more. I should say that two-thirds of the Negro population lived in cities of the first class.
And this, according to your brief, as I remember—the present situation in Kansas is that this segregated class of primary schools are in only nine of those cities?
In only nine of our cities.
As I recall, there are eighteen separate elementary schools maintained in the State under and by virtue of the statute. There is one separate junior high school and one separate high school. In other communities we do have voluntary segregation, but that does not exist with the sanction or the force of law.
As I recall, there are eighteen separate elementary schools maintained in the State under and by virtue of the statute. There is one separate junior high school and one separate high school. In other communities we do have voluntary segregation, but that does not exist with the sanction or the force of law.
Do you have any Indians in Kansas?
We have a few, Your Honor.
Where do they go to school?
I know of no instances where Indians live in cities of the first class. Most of our Indians live on the reservation. The Indians who do live in cities of the first class would attend the schools maintained for the white race.
Those who live on the reservations go to Indian schools?
Yes, sir; attend schools maintained by the Government.
Do any people go to them besides the Indians?
I do not believe so, sir.
May I trouble you before you conclude your argument to deal with this aspect of the case, in the light of the incident of the problems in Kansas, namely, what would be the consequences, as you see them, for this Court to reverse this decree relating to the Kansas law; or, to put it another way, suppose this Court reversed the case, and the case went back to the district court for the entry of a proper decree. What would Kansas be urging should be the nature of that decree in order to carry out the direction of this Court?
As I understand your question, you are asking me what practical difficulties would be encountered in the administration of the school system?
Suppose there would be some difficulties. I want to know what the consequences of the reversal of the decree would be, and what Kansas would be urging us the most for dealing with those consequences in the decree?
In perfect candor, I must say to the Court that the consequences would probably not be serious.
As I pointed out, our Negro population is small. We do have in our Negro schools Negro teachers, Negro administrators, that would necessarily be assimilated in the school system at large. That might produce some administrative difficulties. I can imagine no serious difficulty beyond that.
Now, the question of the segregation of the Negro race in our schools has frequently been before the Supreme Court of Kansas, and at the outset I should say that our court has consistently held that segregation can be practiced only where authorized by the statutes. The rationale of all those cases is simply this: The municipal corporation maintaining the school district is a creature of statute. It can do only what the statute authorizes. Therefore, unless there is a specific power conferred, the municipal corporation maintaining the school district cannot classify students on the basis of color.
Now, the question of the segregation of the Negro race in our schools has frequently been before the Supreme Court of Kansas, and at the outset I should say that our court has consistently held that segregation can be practiced only where authorized by the statutes. The rationale of all those cases is simply this: The municipal corporation maintaining the school district is a creature of statute. It can do only what the statute authorizes. Therefore, unless there is a specific power conferred, the municipal corporation maintaining the school district cannot classify students on the basis of color.
Have there been efforts made to remove the act permitting segregation or authorizing segregation in Kansas?
I recall—I think I mentioned in my brief—in 1876 in a general codification of the school laws, the provision authorizing the maintenance of separate schools was, apparently through inadvertence, omitted by the legislature. It was nevertheless deemed to be repealed by implication. But thereafter, in 1879, substantially the same statute was again enacted. Since that time, to my knowledge, there have been no considered efforts made in the legislature to repeal that statute.
Mr. Attorney General, you emphasized the four percent and the smallness of the population. Would that affect your problem if there were heavier concentrations?
It is most difficult for me to answer that question. It might.
I am not acquainted with the situation where there is a heavier concentration, in other words.
I mean, your statute adapts itself to different localities. What are the variables that the statute was designed to take care of, if any, if you know, at this late date?
My theory of the justification of the statute is this: The State of Kansas was born out of the struggle between the North and the South prior to the War Between the States, and our State was populated by squatters from the North and from the South.
Those squatters settled in communities. The pro-slavery elements settled in Leavenworth, in Atchison, and Lecompton. The Free Soil elements settled in Topeka, in Lawrence, and in Wyandotte. The Negroes who came to the State during and immediately subsequent to the war also settled in communities.
Consequently, our early legislatures were faced with this situation: In some communities the attitudes of the people were such that it was deemed best that the Negro race live apart. In other communities a different attitude was reflected. Also in some communities there was a substantial Negro population. In other communities there were few Negroes.
Therefore, the legislature sought by this type of legislation to provide a means whereby the community could adjust its plan to suit local conditions, and we believe they succeeded.
Those squatters settled in communities. The pro-slavery elements settled in Leavenworth, in Atchison, and Lecompton. The Free Soil elements settled in Topeka, in Lawrence, and in Wyandotte. The Negroes who came to the State during and immediately subsequent to the war also settled in communities.
Consequently, our early legislatures were faced with this situation: In some communities the attitudes of the people were such that it was deemed best that the Negro race live apart. In other communities a different attitude was reflected. Also in some communities there was a substantial Negro population. In other communities there were few Negroes.
Therefore, the legislature sought by this type of legislation to provide a means whereby the community could adjust its plan to suit local conditions, and we believe they succeeded.
You mentioned Topeka as one of the Free State settlements, and that seems to be the subject that is involved here with the segregation ordinances. Is there any explanation for that?
As I explained these matters—I am speculating—we have in Kansas—
Your speculation ought to be worth more than mine.
We have in Kansas history a period of migration of the Negro race to Kansas which we call the exodus, the black exodus, as spoken of in the history books. At that time, which was in the 'eighties, large numbers of Negro people came from the South and settled in Kansas communities. A large number of those people settled in Topeka and, for the first time, I presume—and again I am speculating—there was created there the problem of the racial adjustment within the community.
The record in this case infers that segregation was established in Topeka about fifty years ago. I am assuming that, in my speculation for the Court, that segregation began to be practiced in Topeka after the exodus had given Topeka a substantial colored population.
The record in this case infers that segregation was established in Topeka about fifty years ago. I am assuming that, in my speculation for the Court, that segregation began to be practiced in Topeka after the exodus had given Topeka a substantial colored population.
You spoke of the density of the Negro population, of about four percent covering the State as a whole. Have you in mind what city has the largest concentration of residents by percentage?
The city with the largest concentration of Negro population is Kansas City, Kansas.
That is by percentage?
By percentage, as well as in absolute numbers.
How high is it there?
The Negro population, I should say—perhaps Mr. Scott can help me with this—I should say not more than ten per cent; is that correct?
That is about right, yes.
This statute has been squarely challenged in our: Kansas Supreme Court and has been upheld, and I cite in my case the leading case of Reynolds v. The School Board, where in 1903 the court held flatly that the Kansas statute does not violate the Fourteenth Amendment to the Constitution of the United States That opinion is an exhaustive one wherein the court drew on the Roberts case in Massachusetts and numerous other cases cited in the appellate courts of the State, and the court followed specific ally the rule laid down in the Plessy case.
It is our position that the principle announced in the Plessy, case and the specific rule announced in the Gong Lum case an absolutely controlling here. We think it is sheer sophistry to attempt to distinguish those cases from the case that is here presented, and we think the question before this Court is simply: Is the Plessy case and the Gong Lum case and the "separate but equal' doctrine still the law of this land?
We think if you decide in favor of these appellants, the Court will necessarily overrule the doctrines expressed in those case and, at the same time, will say that the legislatures of the seventeen or twenty-one states, that the Congress of the United States that dozens of appellate courts have been wrong for a period of more than seventy-five years, when they have believed and have manifested a belief that facilities equal though separate were with in the meaning of the Fourteenth Amendment.
It is our position that the principle announced in the Plessy, case and the specific rule announced in the Gong Lum case an absolutely controlling here. We think it is sheer sophistry to attempt to distinguish those cases from the case that is here presented, and we think the question before this Court is simply: Is the Plessy case and the Gong Lum case and the "separate but equal' doctrine still the law of this land?
We think if you decide in favor of these appellants, the Court will necessarily overrule the doctrines expressed in those case and, at the same time, will say that the legislatures of the seventeen or twenty-one states, that the Congress of the United States that dozens of appellate courts have been wrong for a period of more than seventy-five years, when they have believed and have manifested a belief that facilities equal though separate were with in the meaning of the Fourteenth Amendment.
There is a third one—
Don't you recognize it as possible that within seventy-five years the social and economic conditions and the personal relations of the nation may have changed, so that what may have been a valid interpretation of them seventy-five years ago would not be a valid interpretation of them constitutionally today?
We recognize that as a possibility. We do not believe that this record discloses any such change.
But that might be a difference between saying that these courts of appeals and state supreme courts have been wrong for seventy-five years.
Yes, sir. We concede that this Court can overrule the Gong Lum doctrine, the Plessy doctrine, but nevertheless, until those cases are overruled they are the best guide we have.
As I understood my brother Burton's question or as I got the implication of his question, it was not that the Court would have to overrule those cases; the Court would simply have to recognize that laws are kinetic, and some new things have happened, not deeming those decisions wrong, but bringing into play new situations toward a new decision. I do not know whether he would disown me, but that is what I got out of it.
We agree with that proposition. But I repeat, we do not think that there is anything in the record here that would justify such a conclusion.
Now, something has been said about Finding of Fact No. 8 in the district court, and I would like to comment briefly upon that finding of fact. The Court will recall that that is the finding of fact wherein the lower court determined generally that segregation of white and colored children in the public schools has a detrimental effect upon the colored children. It may be significant that this finding of fact was based upon the uncontroverted testimony of witnesses produced by the appellants in this case. I should also like to point out that that finding of fact was based upon the uncontested evidence presented by the case.
We think it is obvious, however, that the district court regarded Finding of Fact No. 8 as being legally insignificant, because, having made a finding of fact, Finding of Fact No. 8, where-in the general statement is made that Negro children might be benefited by attendance at an integrated school system, the district court concluded in its conclusion of law simply this: The court has heretofore filed its findings of fact and conclusions of law, together with an opinion, and has held that, as a matter of law, the plaintiffs have failed to prove that they were entitled to the relief demanded. In other words, Finding of Fact No. 8 is immaterial, we believe, so far as the issues of this case are concerned.
The court did find—and we have mentioned the finding specifically—that physical facilities were equal; the court found that instructional facilities were equal; the court found that courses of study were equal. Those are the items that the State and the school districts have within their power to confer.
This additional item, the psychological reaction, is something which is something apart from the objective components of the school system, and something that the State does not have within its power to confer upon the pupils therein. Therefore, the district court—and we believe rightly—regarded it as something that is inconsequential, immaterial, not governing in this case.
We make one further point in our brief that may be significant, and that is that Finding of Fact No. 8 is a general finding. It does not relate to these specific appellants.
As we understand the law, in order to obtain an injunction, obtain injunctive relief, which is prayed for here, it is necessary that these appellants show in the court below, first, that they have actually suffered personal harm from attending segregated schools in Topeka, Kansas; they must show that either they have been deprived of some benefit that is conferred on the rest of the population or they must show that they are being subjected to some detriment that the rest of the population does not suffer.
Now, we must submit that there is nothing in the Finding of Fact No. 8 which indicates that these appellants specifically have suffered any harm by reason of being compelled to attend a segregated school system in the City of Topeka.
I think it is significant that all of the other findings of fact relate specifically to the Topeka school system. They use the definite article when describing "the" system, until Finding of Fact No. 8, and there the general statement is made indicating that the court believes that Negro children generally would be better off if they were attending an integrated school system.
Now, we submit on the basis of that finding of fact the plaintiffs below and the appellants here have not shown their right to injunctive relief because they have not shown the injury that the decisions of this Court seem to require.
The position of the State of Kansas, to emphasize again, is simply this: Our statute is constitutional; it does not violate the Fourteenth Amendment, and that position is supported by all of the decisions of the Kansas courts. That position, we think, is supported by the decisions of this Court.
Thank you.
Now, something has been said about Finding of Fact No. 8 in the district court, and I would like to comment briefly upon that finding of fact. The Court will recall that that is the finding of fact wherein the lower court determined generally that segregation of white and colored children in the public schools has a detrimental effect upon the colored children. It may be significant that this finding of fact was based upon the uncontroverted testimony of witnesses produced by the appellants in this case. I should also like to point out that that finding of fact was based upon the uncontested evidence presented by the case.
We think it is obvious, however, that the district court regarded Finding of Fact No. 8 as being legally insignificant, because, having made a finding of fact, Finding of Fact No. 8, where-in the general statement is made that Negro children might be benefited by attendance at an integrated school system, the district court concluded in its conclusion of law simply this: The court has heretofore filed its findings of fact and conclusions of law, together with an opinion, and has held that, as a matter of law, the plaintiffs have failed to prove that they were entitled to the relief demanded. In other words, Finding of Fact No. 8 is immaterial, we believe, so far as the issues of this case are concerned.
The court did find—and we have mentioned the finding specifically—that physical facilities were equal; the court found that instructional facilities were equal; the court found that courses of study were equal. Those are the items that the State and the school districts have within their power to confer.
This additional item, the psychological reaction, is something which is something apart from the objective components of the school system, and something that the State does not have within its power to confer upon the pupils therein. Therefore, the district court—and we believe rightly—regarded it as something that is inconsequential, immaterial, not governing in this case.
We make one further point in our brief that may be significant, and that is that Finding of Fact No. 8 is a general finding. It does not relate to these specific appellants.
As we understand the law, in order to obtain an injunction, obtain injunctive relief, which is prayed for here, it is necessary that these appellants show in the court below, first, that they have actually suffered personal harm from attending segregated schools in Topeka, Kansas; they must show that either they have been deprived of some benefit that is conferred on the rest of the population or they must show that they are being subjected to some detriment that the rest of the population does not suffer.
Now, we must submit that there is nothing in the Finding of Fact No. 8 which indicates that these appellants specifically have suffered any harm by reason of being compelled to attend a segregated school system in the City of Topeka.
I think it is significant that all of the other findings of fact relate specifically to the Topeka school system. They use the definite article when describing "the" system, until Finding of Fact No. 8, and there the general statement is made indicating that the court believes that Negro children generally would be better off if they were attending an integrated school system.
Now, we submit on the basis of that finding of fact the plaintiffs below and the appellants here have not shown their right to injunctive relief because they have not shown the injury that the decisions of this Court seem to require.
The position of the State of Kansas, to emphasize again, is simply this: Our statute is constitutional; it does not violate the Fourteenth Amendment, and that position is supported by all of the decisions of the Kansas courts. That position, we think, is supported by the decisions of this Court.
Thank you.
REBUTTAL ARGUMENT OF ROBERT L. CARTER, ESQ.,
ON BEHALF OF THE APPELLANTS
ON BEHALF OF THE APPELLANTS
We think that finding of fact of the court below makes necessary a reversal of its judgment. Without regard to any other consideration, the court below found that inequality flowed from segregation, and our position, as stated previously, is, ii there are facilities, educational opportunities, in fact, that educational opportunities cannot be equal in law.
Why do you think that would apply?
Because of the fact, sir—
Suppose it had been found differently?
If it had been found, or I should say, if the Court agrees that the findings are correct—
Suppose another court finds strictly to the contrary with reference to the general principle; what would you say?
Well, this Court, of course, in a question like that reexamines the findings or the basis for the findings and can reach its own conclusion in that regard.
Do you think the Court can make a finding independent of the basis of fact?
No, sir, they do not. What I meant to say was that this Court, if they agreed with the findings on an examination of this record, agreed with the findings of fact of the court below, and came to the conclusion that the court below had correctly found the facts on its own independent examination, that this Court would—it would necessitate a reversal of that court's judgment. I do not mean that the findings of the court below come here and that you have to accept them. Of course, I do not agree with that.
Do you think that there should be a different holding here with reference to the question involved, according to the place where the segregation might occur, and if not, why do you say it depends—why do you say that it depends on the findings of fact at all?
I say that about the findings of fact because what I think the court below did was, in approaching this question, it followed the example of this Court in McLaurin and Sweatt and, I think, it approached the question correctly; so that it found that inequality in educational opportunity existed as a result of the racial restrictions.
Is that a general finding or do you state that for the State of Kansas, City of Topeka?
I think I agree with the fact that the finding refers to the State of Kansas and to these appellants and to Topeka, Kansas. I think that the findings were made in this specific case referring to this specific case.
In other words, if you are going to go on the findings, then you would have different rulings with respect to the places to which this applies; is that true?
Well, the only thing that I think the findings do when this Court reached the question and held this finding, it seems to me that the only thing that the findings would do is that—without regard to the question, the court below, examining the facilities, found that they were unequal.
Now, of course, under our theory you do not have to reach the finding of fact or a fact at all in reaching the decision because of the fact that we maintain that this is an unconstitutional classification being based upon race and, therefore, it is arbitrary. But all I was attempting to address myself to was to the specific examination by the court below on the impact of segregation on the equality of educational opportunities afforded.
Now, of course, under our theory you do not have to reach the finding of fact or a fact at all in reaching the decision because of the fact that we maintain that this is an unconstitutional classification being based upon race and, therefore, it is arbitrary. But all I was attempting to address myself to was to the specific examination by the court below on the impact of segregation on the equality of educational opportunities afforded.
Are you planning to attach relevance to anything except the question of whether they are separate but equal?
I think that they are relevant to the question of whether there are equal educational opportunities that are being afforded. I think whether, in fact, you have equal education in the opinion of the court below, that the findings are relevant, and I think that the court below found that the educational facilities were unequal as a result of segregation; but it felt that it could not reach the legal conclusion that they were unequal because of two decisions we have discussed.
Now, to conclude, our feeling is that this case could be decided on the question of the illegality of the classification itself. This case also could be decided on the question of equal educational opportunities as they are examined by the approach of McLaurin and Sweatt.
We think that the court below did the same thing. The court below did what this Court did in McLaurin and in Sweatt, and we think that in the examination of the equality of education offered, that what it did was, it found that these restrictions imposed disabilities on Negro children and prevented them from having educational opportunities equal to white, and for these reasons we think that the judgment of the court below should be reversed and the Kansas statute should be struck down.
Now, to conclude, our feeling is that this case could be decided on the question of the illegality of the classification itself. This case also could be decided on the question of equal educational opportunities as they are examined by the approach of McLaurin and Sweatt.
We think that the court below did the same thing. The court below did what this Court did in McLaurin and in Sweatt, and we think that in the examination of the equality of education offered, that what it did was, it found that these restrictions imposed disabilities on Negro children and prevented them from having educational opportunities equal to white, and for these reasons we think that the judgment of the court below should be reversed and the Kansas statute should be struck down.
Whereupon, at 3:15 o'clock p.m., the argument was concluded.
Harry Briggs, Jr., et al. v. R.W. Elliott, et al.
Washington, D. C.
Tuesday, December 09, 1952
Tuesday, December 09, 1952
No. 101
Appellants
HARRY BRIGGS, JR., ET AL.
Appellees
R. W. ELLIOTT, Chairman, J. D. CARSON, ET AL., Members of Board of Trustees of School District No. 22, Clarendon County, S. C., et al.
The above-entitled cause came on for oral argument at 3:15 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
THURGOOD MARSHALL, ESQ., on behalf of the Appellants.
JOHN W. DAVIS, ESQ., on behalf of the Appellees.
JOHN W. DAVIS, ESQ., on behalf of the Appellees.
PROCEEDINGS
Case No. 101, Harry Briggs, Jr., et al., against Roger W. Elliott, Chairman, J. D. Carson, et al., Members of Board of Trustees of School District No. 22, Clarendon County, South Carolina, et al.
Counsel are present.
OPENING ARGUMENT OF THURGOOD MARSHALL, ESQ.,
ON BEHALF OF APPELLANTS
ON BEHALF OF APPELLANTS
May it please the Court:
This case is here on direct appeal from the United States District Court for the Eastern District of South Carolina. The issue raised in this case was clearly raised in the pleadings, and was clearly raised throughout the first hearing. After the first hearing, on appeal to this Court, it was raised prior to the second hearing. It was raised on motion for judgment, and there can be no question that from the beginning of this case, the filing of the initial complaint, up until the present time, the appellants have raised and have preserved their attack on the validity of the provision of the South Carolina Constitution and the South Carolina statute.
The specific provision of the South Carolina Code is set forth in our brief at page ten, and it appears in appellees' brief at page fourteen, and reads as follows:
It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race.
That is the Code provision.
The constitutional provision is, again, on page ten of our brief, and is:
Separate schools shall be provided for children of the white races—
This is the significant language:
... and no child of either race shall ever be permitted to attend a school provided for children of the other race.
Those are the two provisions of the law of the State of South Carolina under attack in this particular case.
At the first hearing, before the trial got under way, counsel for the appellees in open court read a statement in which he admitted that, although prior to that time they had decided that the physical facilities of the separate schools were equal, they had concluded finally that they were not equal, and they admitted in open court that they did not have equality; and at the suggestion of senior Judge Parker, this was made as an amendment to the answer, and the question as to physical facilities from that stage on was not in dispute.
At that time, counsel for the appellants, however, made the position clear that the attack was not being made on the "separate but equal" basis as to physical facilities, but the position we were taking was that these statutes were unconstitutional in their enforcement because they not only produced these inevitable inequalities in physical facilities, but that evidence would be produced by expert witnesses to show that the governmentally imposed racial segregation in and of itself was also a denial of equality.
I want to point out that our position is not that we are denied equality in these cases. I think there has been a considerable misunderstanding on that point. We are saying that there is a denial of equal protection of the laws, the legal phraseology of the clause in the Fourteenth Amendment, and not just this point as to equality, and I say that because I think most of the cases in the past have gone off on the point of whether or not you have substantial equality. It is a type of provision that, we think, tends to get us into trouble.
So, pursuing that line, we produced expert witnesses, who had surveyed the school situation, to show the full extent of the physical inequalities, and then we produced expert witnesses. Appellees in their brief comment say that they do not think too much of them. I do not think that the district court thought too much of them. But they stand in the record as unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields.
On the question that was raised a minute ago in the other case about whether or not there is any relevancy to this classification on a racial basis or not, in the case of the testimony of Dr. Robert Redfield—I am sure the Court will remember his testimony in the Sweatt case—the district court was unwilling to carry the case over an extra day. Dr. Redfield was stuck with the usual air travel from one city to another.
And by agreement of counsel and with approval of the court, we placed into the record Dr. Redfield's testimony.
If you will remember, Dr. Redfield's testimony was to this effect; that there were no recognizable differences from a racial standpoint between children, and that if there could be such a difference that would be recognizable and connected with education, it would be so insignificant as to be unworthy of anybody's consideration. In substance, he said, on page 161 of the record—I think it is page 161—that given a similar learning situation, a Negro child and a white child would tend to do about the same thing. I think I have it here. It is on page 161:
Question: As a result of your studies that you have made, the training that you have had in your specialized field over some twenty years, given a similar learning situation, what, if any difference, is there between the accomplishment of a white and a Negro student, given a similar learning situation?
Answer: I understand, if I may say so, a similar learning situation to include a similar degree of preparation?
Question: Yes.
Answer: Then I would say that my conclusion is that the one does as well as the other on the average.
He has considerable testimony along the lines. But we produced testimony to show what we considered to be the normal attack on a classification statute, that this Court has laid down the rule in many cases set out in our brief, that in the case of the object or persons being classified, it must be shown: one, that there is a difference in the two; two, that the state must show that the difference has a significance with the subject matter being legislated; and the state has made no effort up to this date to show any basis for that classification other than that it would be unwise to do otherwise.
Witnesses testified that segregation deterred the development of the personalities of these children. Two witnesses testified that it deprives them of equal status in the school community, that it destroys their self-respect. Two other witnesses testified that it denies them full opportunity for democratic social development. Another witness said that it stamps him with a badge of inferiority. The summation of that testimony is that the Negro children have road blocks put up in their minds as a result of this segregation, so that the amount of education that they take in is much less than other students take in.
The other significant point is that one witness, Dr. Kenneth Clark, examined the appellants in this very case and found that they were injured as a result of this segregation. The court completely disregarded that.
I do not know what clearer testimony we could produce in an attack on a specific statute as applied to a specific group of appellants.
The only evidence produced by the appellees in this case was one witness who testified as to, in general, the running of the school system and the difference between rural schools and consolidated schools, which had no basis whatsoever on the constitutional question.
Another witness, E. R. Crow, was produced to testify as to the new bond issue that was to go into effect after the hearing in this case, at which time they would build more schools as a result of that money. That testimony was admitted into the record over objection of the appellants. The appellants took the position that anything that was to be talked about in the future was irrelevant to a constitutional issue where a personal and present right was asserted. However, the court overruled the objection. Mr. Crow testified.
Then he was asked as to whether or not it would not be "unwise" to break down segregation in South Carolina. Then Mr. Crow proceeded to testify as an expert. He had six years of experience, I think, as superintendent of schools, and prior to that time he was principal of a high school in Columbia. He testified that it would be unwise. He also testified that he did not know but what the legislature would not appropriate the money.
On cross-examination he was asked as to whether or not he meant by the first statement that if relief was granted as prayed, the appellees might not conform to the relief, and Judge Parker made a very significant statement which appears in the record, that, "If we issue an order in this case, it will be obeyed, and I do not think there is any question about it."
On this second question on examination, when he was asked, who did he use as the basis for his information that this thing would not work in the South, he said he talked to gangs of people, white and colored, and he was giving the sum total of their testimony, or rather their statements to him. And again on cross-examination he was asked to name at least one of the Negroes he talked to, and he could not recall the name of a single Negro he had ever talked to. I think the basis of his testimony on that point should be weighed by that statement on cross-examination.
He also said that there was a difference between what happened in northern states, because they had a larger number of Negroes in the South, and they had a larger problem because the percentage of Negroes was so high. And again on cross-examination, he was asked the specific question:
Well, assuming that in South Carolina the population was 95 percent white and five percent colored, would your answer be any different?
And he said, no, he would make the same answer regardless.
That is the only evidence in the record for the appellees here. They wanted to put on the speech of Professor Odom, and they were refused the right to put the speech in, because, after all, Professor Odom was right across in North Carolina and could have been called as a witness.
So here we have a record that has made no effort whatsoever—no effort whatsoever—to support the legislative determinations of the State of South Carolina. And this Court is being asked to uphold those statutes, the statute and the constitutional provision, because of two reasons. One is that these matters are legislative matters, as to whether or not we are going to have segregation. For example, the majority of the court in the first hearing said, speaking of equality under the Fourteenth Amendment:
How this shall be done is a matter for the school authorities and not for the court, so long as it is done in good faith and equality of facilities is offered.
Again the court said, in Chief Judge Parker's opinion:
We think, however, that segregation of the races in the public schools, so long as equality of rights is preserved, is a matter of legislative policy for the several states, with which the Federal courts are powerless to interfere.
So here we have the unique situation of an asserted federal right which has been declared several times by this Court to be personal and present, being set aside on the theory that it is a matter for the state legislature to decide, and it is not for this Court. And that is directly contrary to every opinion of this Court.
In each instance where these matters come up in what, if I may say "sensitive" field, or whatever I am talking about—civil rights, freedom of speech, et cetera—at all times they have this position: The majority of the people wanted the statute; that is how it was passed.
There are always respectable people who can be quoted as in support of a statute. But in each case, this Court has made its own independent determination as to whether that statute is valid. Yet in this case, the Court is urged to give blanket approval that this field of segregation and, if I may say, this field of racial segregation, is purely to be left to the states, the direct opposite of what the Fourteenth Amendment was passed for, the direct opposite of the intent of the Fourteenth Amendment and the framers of it.
On this question of the sensitiveness of this field, and to leave it to the legislature, I know lawyers at times have a hard time finding a case in point. But in the reply brief, I think that we have a case in point that is persuasive to this Court. It is the case of Elkison v. Deliesseline, a decision by Mr. Justice William Johnson, appointed to this Court, if I remember, from South Carolina. The decision was rendered in 1823. And in 1823, Mr. Justice Johnson, in a case involving the State of South Carolina, which provided that where free Negroes came in on a ship into Charleston, they had to put them in jail as long as the ship was there and then put them back on the ship—and it was argued by people arguing for the statute that this was necessary, it was necessary to protect the people of South Carolina, and the majority must have wanted it and it was adopted—Mr. Justice Johnson made an answer to that argument in 1823, which I think is pretty good law as of today. Mr. Justice Johnson said:
But to all this the plea of necessity is urged; and of the existence of that necessity we are told the state alone is to judge. Where is this to land us? Is it not asserting the right in each state to throw off the Federal Constitution at its will and pleasure? If it can be done as to any particular article it may be done as to all; and, like the old confederation, the Union becomes a mere rope of sand.
There is a lot of other language and other opinions, but I think that this is very significant.
This case is here on direct appeal from the United States District Court for the Eastern District of South Carolina. The issue raised in this case was clearly raised in the pleadings, and was clearly raised throughout the first hearing. After the first hearing, on appeal to this Court, it was raised prior to the second hearing. It was raised on motion for judgment, and there can be no question that from the beginning of this case, the filing of the initial complaint, up until the present time, the appellants have raised and have preserved their attack on the validity of the provision of the South Carolina Constitution and the South Carolina statute.
The specific provision of the South Carolina Code is set forth in our brief at page ten, and it appears in appellees' brief at page fourteen, and reads as follows:
It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race.
That is the Code provision.
The constitutional provision is, again, on page ten of our brief, and is:
Separate schools shall be provided for children of the white races—
This is the significant language:
... and no child of either race shall ever be permitted to attend a school provided for children of the other race.
Those are the two provisions of the law of the State of South Carolina under attack in this particular case.
At the first hearing, before the trial got under way, counsel for the appellees in open court read a statement in which he admitted that, although prior to that time they had decided that the physical facilities of the separate schools were equal, they had concluded finally that they were not equal, and they admitted in open court that they did not have equality; and at the suggestion of senior Judge Parker, this was made as an amendment to the answer, and the question as to physical facilities from that stage on was not in dispute.
At that time, counsel for the appellants, however, made the position clear that the attack was not being made on the "separate but equal" basis as to physical facilities, but the position we were taking was that these statutes were unconstitutional in their enforcement because they not only produced these inevitable inequalities in physical facilities, but that evidence would be produced by expert witnesses to show that the governmentally imposed racial segregation in and of itself was also a denial of equality.
I want to point out that our position is not that we are denied equality in these cases. I think there has been a considerable misunderstanding on that point. We are saying that there is a denial of equal protection of the laws, the legal phraseology of the clause in the Fourteenth Amendment, and not just this point as to equality, and I say that because I think most of the cases in the past have gone off on the point of whether or not you have substantial equality. It is a type of provision that, we think, tends to get us into trouble.
So, pursuing that line, we produced expert witnesses, who had surveyed the school situation, to show the full extent of the physical inequalities, and then we produced expert witnesses. Appellees in their brief comment say that they do not think too much of them. I do not think that the district court thought too much of them. But they stand in the record as unchallenged as experts in their field, and I think we have arrived at the stage where the courts do give credence to the testimony of people who are experts in their fields.
On the question that was raised a minute ago in the other case about whether or not there is any relevancy to this classification on a racial basis or not, in the case of the testimony of Dr. Robert Redfield—I am sure the Court will remember his testimony in the Sweatt case—the district court was unwilling to carry the case over an extra day. Dr. Redfield was stuck with the usual air travel from one city to another.
And by agreement of counsel and with approval of the court, we placed into the record Dr. Redfield's testimony.
If you will remember, Dr. Redfield's testimony was to this effect; that there were no recognizable differences from a racial standpoint between children, and that if there could be such a difference that would be recognizable and connected with education, it would be so insignificant as to be unworthy of anybody's consideration. In substance, he said, on page 161 of the record—I think it is page 161—that given a similar learning situation, a Negro child and a white child would tend to do about the same thing. I think I have it here. It is on page 161:
Question: As a result of your studies that you have made, the training that you have had in your specialized field over some twenty years, given a similar learning situation, what, if any difference, is there between the accomplishment of a white and a Negro student, given a similar learning situation?
Answer: I understand, if I may say so, a similar learning situation to include a similar degree of preparation?
Question: Yes.
Answer: Then I would say that my conclusion is that the one does as well as the other on the average.
He has considerable testimony along the lines. But we produced testimony to show what we considered to be the normal attack on a classification statute, that this Court has laid down the rule in many cases set out in our brief, that in the case of the object or persons being classified, it must be shown: one, that there is a difference in the two; two, that the state must show that the difference has a significance with the subject matter being legislated; and the state has made no effort up to this date to show any basis for that classification other than that it would be unwise to do otherwise.
Witnesses testified that segregation deterred the development of the personalities of these children. Two witnesses testified that it deprives them of equal status in the school community, that it destroys their self-respect. Two other witnesses testified that it denies them full opportunity for democratic social development. Another witness said that it stamps him with a badge of inferiority. The summation of that testimony is that the Negro children have road blocks put up in their minds as a result of this segregation, so that the amount of education that they take in is much less than other students take in.
The other significant point is that one witness, Dr. Kenneth Clark, examined the appellants in this very case and found that they were injured as a result of this segregation. The court completely disregarded that.
I do not know what clearer testimony we could produce in an attack on a specific statute as applied to a specific group of appellants.
The only evidence produced by the appellees in this case was one witness who testified as to, in general, the running of the school system and the difference between rural schools and consolidated schools, which had no basis whatsoever on the constitutional question.
Another witness, E. R. Crow, was produced to testify as to the new bond issue that was to go into effect after the hearing in this case, at which time they would build more schools as a result of that money. That testimony was admitted into the record over objection of the appellants. The appellants took the position that anything that was to be talked about in the future was irrelevant to a constitutional issue where a personal and present right was asserted. However, the court overruled the objection. Mr. Crow testified.
Then he was asked as to whether or not it would not be "unwise" to break down segregation in South Carolina. Then Mr. Crow proceeded to testify as an expert. He had six years of experience, I think, as superintendent of schools, and prior to that time he was principal of a high school in Columbia. He testified that it would be unwise. He also testified that he did not know but what the legislature would not appropriate the money.
On cross-examination he was asked as to whether or not he meant by the first statement that if relief was granted as prayed, the appellees might not conform to the relief, and Judge Parker made a very significant statement which appears in the record, that, "If we issue an order in this case, it will be obeyed, and I do not think there is any question about it."
On this second question on examination, when he was asked, who did he use as the basis for his information that this thing would not work in the South, he said he talked to gangs of people, white and colored, and he was giving the sum total of their testimony, or rather their statements to him. And again on cross-examination he was asked to name at least one of the Negroes he talked to, and he could not recall the name of a single Negro he had ever talked to. I think the basis of his testimony on that point should be weighed by that statement on cross-examination.
He also said that there was a difference between what happened in northern states, because they had a larger number of Negroes in the South, and they had a larger problem because the percentage of Negroes was so high. And again on cross-examination, he was asked the specific question:
Well, assuming that in South Carolina the population was 95 percent white and five percent colored, would your answer be any different?
And he said, no, he would make the same answer regardless.
That is the only evidence in the record for the appellees here. They wanted to put on the speech of Professor Odom, and they were refused the right to put the speech in, because, after all, Professor Odom was right across in North Carolina and could have been called as a witness.
So here we have a record that has made no effort whatsoever—no effort whatsoever—to support the legislative determinations of the State of South Carolina. And this Court is being asked to uphold those statutes, the statute and the constitutional provision, because of two reasons. One is that these matters are legislative matters, as to whether or not we are going to have segregation. For example, the majority of the court in the first hearing said, speaking of equality under the Fourteenth Amendment:
How this shall be done is a matter for the school authorities and not for the court, so long as it is done in good faith and equality of facilities is offered.
Again the court said, in Chief Judge Parker's opinion:
We think, however, that segregation of the races in the public schools, so long as equality of rights is preserved, is a matter of legislative policy for the several states, with which the Federal courts are powerless to interfere.
So here we have the unique situation of an asserted federal right which has been declared several times by this Court to be personal and present, being set aside on the theory that it is a matter for the state legislature to decide, and it is not for this Court. And that is directly contrary to every opinion of this Court.
In each instance where these matters come up in what, if I may say "sensitive" field, or whatever I am talking about—civil rights, freedom of speech, et cetera—at all times they have this position: The majority of the people wanted the statute; that is how it was passed.
There are always respectable people who can be quoted as in support of a statute. But in each case, this Court has made its own independent determination as to whether that statute is valid. Yet in this case, the Court is urged to give blanket approval that this field of segregation and, if I may say, this field of racial segregation, is purely to be left to the states, the direct opposite of what the Fourteenth Amendment was passed for, the direct opposite of the intent of the Fourteenth Amendment and the framers of it.
On this question of the sensitiveness of this field, and to leave it to the legislature, I know lawyers at times have a hard time finding a case in point. But in the reply brief, I think that we have a case in point that is persuasive to this Court. It is the case of Elkison v. Deliesseline, a decision by Mr. Justice William Johnson, appointed to this Court, if I remember, from South Carolina. The decision was rendered in 1823. And in 1823, Mr. Justice Johnson, in a case involving the State of South Carolina, which provided that where free Negroes came in on a ship into Charleston, they had to put them in jail as long as the ship was there and then put them back on the ship—and it was argued by people arguing for the statute that this was necessary, it was necessary to protect the people of South Carolina, and the majority must have wanted it and it was adopted—Mr. Justice Johnson made an answer to that argument in 1823, which I think is pretty good law as of today. Mr. Justice Johnson said:
But to all this the plea of necessity is urged; and of the existence of that necessity we are told the state alone is to judge. Where is this to land us? Is it not asserting the right in each state to throw off the Federal Constitution at its will and pleasure? If it can be done as to any particular article it may be done as to all; and, like the old confederation, the Union becomes a mere rope of sand.
There is a lot of other language and other opinions, but I think that this is very significant.
Mr. Marshall, what emphasis do you give to the words, "So long as equality of rights is preserved"?
In Judge Parker's opinion—
Yes.
—of physical facilities, because he ends up in this statement, and makes it, I think, very clear. On the second hearing, on three or four occasions, he made it clear that segregation was not involved in the case any longer.
Segregation or equality of rights?
He said that segregation was out of the case, and that we had disposed of it. And page 279—I think I marked it—yes, sir, the question was asked of me about building the schools overnight, and down near the end of the page he mentions the fact of segregation. Judge Parker said: "Well, I understand you do not admit that any conditions exist that require segregation. I understand that."
Yes, sir, that is right. But that has been ruled on by the Court. What we are considering now is the question: whether the physical facilities, curricula—
—"and the other things that can be made equal, without the segregation issue, are being made equal?"
He is talking about physical facilities.
He is also talking about the curricula, "and the other things that can be made equal."
I am sorry I mentioned that, sir. I considered curricula in the physical facilities.
That is a shorthanded question.
Yes, sir. But again on page 281 they asked the question of whether something can be done, and I said that they could break down segregation. Judge Dobie said, "Let that alone."
Judge Parker said, "That is the same question."
So I think for all intents and purposes, the district court ruled out the question of all of this argument that segregation had the effect on these children to deny the children their rights under the Constitution, and they passed upon curricula, transportation, faculty, and schools. At the second hearing, the report showed that they were making progress. The schools still were not equal. But the question was that if they proceeded the way they were as of March of last year, they would be equal as of the September just past.
But in this case in the trial we conceived ourselves as conforming to the rule set out in the McLaurin and the Sweatt cases, where this Court held that the only question to be decided was the question as to whether or not the action of the state in maintaining its segregation was denying to the students the equal protection of the laws.
Of course, those decisions were limited to the graduate and professional schools. But we took the position that the rationale, if you please, or the principle, to be stronger, set out in those cases would apply just as well down the line, provided evidence could be introduced which would show the same type of injury.
That is the type of evidence we produced, and we believed that on the basis of that testimony the district court should properly have held that in the area of elementary and high schools the same type of injury was present as would be present in the McLaurin or the Sweatt case.
However, the district court held just to the contrary, and said that there was a significant difference between the two. That is, in the Sweatt case it was a matter of inequality, and in the McLaurin case, McLaurin was subject to such humiliation, etcetera, that nobody should put up with it, whereas in this case, we have positive testimony from Dr. Clark that the humiliation that these children have been going through is the type of injury to the minds that will be permanent as long as they are in segregated schools, not theoretical injury, but actual injury.
We believe that on the basis of that, on that narrow point of Sweatt and McLaurin—on that I say, sir, that we do not have to get to Plessy v. Ferguson; we do not have to get to any other case, if we lean right on these two cases. We believe that there is a broader issue involved in these two cases, and despite the body of the law, Plessy v. Ferguson, Gong Lum v. Rice, the statement of Chief Justice Hughes in the Gaines case, some of the language in the Cumming case, even though not applicable as to here—we also believe that there is another body of law, and that is the body of law on the Fifth Amendment cases, on the Japanese exclusion cases, and the Fourth Amendment cases, language that was in Nixon v. Herndon, where Mr. Justice Holmes said that the states can do a lot of classifying that nobody can see any reason for, but certainly it cannot go contrary to the Fourteenth Amendment; then the language in the Skinner case, the language of Mr. Justice Jackson in his concurring opinion in the Edwards case.
So on both the Fourteenth Amendment and the Fifteenth Amendment, this Court has repeatedly said that these distinctions on a racial basis or on a basis of ancestry are odious and invidious, and those distinctions, I think, are entitled to just as much weight as Plessy v. Ferguson or Gong Lum v. Rice.
Judge Parker said, "That is the same question."
So I think for all intents and purposes, the district court ruled out the question of all of this argument that segregation had the effect on these children to deny the children their rights under the Constitution, and they passed upon curricula, transportation, faculty, and schools. At the second hearing, the report showed that they were making progress. The schools still were not equal. But the question was that if they proceeded the way they were as of March of last year, they would be equal as of the September just past.
But in this case in the trial we conceived ourselves as conforming to the rule set out in the McLaurin and the Sweatt cases, where this Court held that the only question to be decided was the question as to whether or not the action of the state in maintaining its segregation was denying to the students the equal protection of the laws.
Of course, those decisions were limited to the graduate and professional schools. But we took the position that the rationale, if you please, or the principle, to be stronger, set out in those cases would apply just as well down the line, provided evidence could be introduced which would show the same type of injury.
That is the type of evidence we produced, and we believed that on the basis of that testimony the district court should properly have held that in the area of elementary and high schools the same type of injury was present as would be present in the McLaurin or the Sweatt case.
However, the district court held just to the contrary, and said that there was a significant difference between the two. That is, in the Sweatt case it was a matter of inequality, and in the McLaurin case, McLaurin was subject to such humiliation, etcetera, that nobody should put up with it, whereas in this case, we have positive testimony from Dr. Clark that the humiliation that these children have been going through is the type of injury to the minds that will be permanent as long as they are in segregated schools, not theoretical injury, but actual injury.
We believe that on the basis of that, on that narrow point of Sweatt and McLaurin—on that I say, sir, that we do not have to get to Plessy v. Ferguson; we do not have to get to any other case, if we lean right on these two cases. We believe that there is a broader issue involved in these two cases, and despite the body of the law, Plessy v. Ferguson, Gong Lum v. Rice, the statement of Chief Justice Hughes in the Gaines case, some of the language in the Cumming case, even though not applicable as to here—we also believe that there is another body of law, and that is the body of law on the Fifth Amendment cases, on the Japanese exclusion cases, and the Fourth Amendment cases, language that was in Nixon v. Herndon, where Mr. Justice Holmes said that the states can do a lot of classifying that nobody can see any reason for, but certainly it cannot go contrary to the Fourteenth Amendment; then the language in the Skinner case, the language of Mr. Justice Jackson in his concurring opinion in the Edwards case.
So on both the Fourteenth Amendment and the Fifteenth Amendment, this Court has repeatedly said that these distinctions on a racial basis or on a basis of ancestry are odious and invidious, and those distinctions, I think, are entitled to just as much weight as Plessy v. Ferguson or Gong Lum v. Rice.
Mr. Marshall, in Plessy v. Ferguson, in the Harlan dissent—
Yes, sir.
Do you attach any significance when he is dealing with illustrations of the absence of education?
Yes, sir. I do not know, sir. I tried to study his opinions all along. But I think that he was trying to take the position of the narrow issue involved in this case, and not touch on schools, because of the fact that at that time—and this is pure speculation—at that time the public school system was in such bad shape, when people were fighting compulsory attendance laws, they were fighting the money to be put in schools, and it was in a state of flux. But on the other hand, in the majority opinion, the significant thing, the case that they relied on, was the Roberts case, which was decided before the Fourteenth Amendment was even passed.
But that does not do away with a consideration of the Roberts case, does it?
No, sir, it does not.
The significance of the Roberts case is that that should be considered by the Supreme Court at a time when that issue was rampant in the United States.
Well, sir, I do not know about those days. But I cannot conceive of the Roberts case being good for anything except that the legislatures of the states at those times were trying to work out their problems as they best could understand. And it could be that up in Massachusetts at that time they thought that Negroes—some of them were escaping from slavery, and all—but I still say that the considerations for the passage of any legislation before the Civil War and up to 1900, certainly, could not apply at the present time. I think that every race has made progress, but I do not believe that those considerations have any bearing at this time. The question today is—
They do not study these cases. But may I call your attention to what Mr. Justice Holmes said about the Fourteenth Amendment?
The Fourteenth Amendment itself as an historical product did not destroy history for the state and substitute mechanical departments of law . . .
The Fourteenth Amendment itself as an historical product did not destroy history for the state and substitute mechanical departments of law . . .
I agree, sir.
Then you have to face the fact that this is not a question to be decided by an abstract starting point of natural law, that you cannot have segregation. If we start with that, of course, we will end with that.
I do not know of any other proposition, sir, that we could consider that would say that because a person who is as white as snow with blue eyes and blond hair has to be set aside.
Do you think that is the case?
Yes, sir. The law of South Carolina applies that way.
Do you think that this law was passed for the same reason that a law would be passed prohibiting blue-eyed children from attending public schools? You would permit all blue-eyed children to go to separate schools? You think that this is the case?
No, sir, because the blue-eyed people in the United States never had the badge of slavery which was perpetuated in the statutes.
If it is perpetuated as slavery, then the Thirteenth Amendment would apply.
But at the time—
Do you really think it helps us not to recognize that behind this are certain facts of life, and the question is whether a legislature can address itself to those facts of life in spite of or within the Fourteenth Amendment, or whether, whatever the facts of life might be, where there is a vast congregation of Negro population as against the states where there is not, whether that is an irrelevant consideration? Can you escape facing those sociological facts, Mr. Marshall?
No, I cannot escape it. But if I did fail to escape it, I would have to throw completely aside the personal and present rights of those individuals.
No, you would not. It does not follow because you cannot make certain classifications, you cannot make some classifications.
But the personal and present right that I have to consider, like any other citizen of Clarendon County, South Carolina, is a right that has been recognized by this Court over and over again. And so far as the appellants in this case are concerned, I cannot consider it sufficient to be relegated to the legislature of South Carolina where the record in this Court shows their consideration of Negroes, and I speak specifically of the primary cases.
If you would refer to the record of the case, there they said that the doctrine of classification is not excluded by the Fourteenth Amendment, but its employment by state legislatures has no justifiable foundation.
I think that when an attack is made on a statute on the ground that it is an unreasonable classification, and competent, recognized testimony is produced, I think then the least that the state has to do is to produce something to defend their statutes.
I follow you when you talk that way.
That is part of the argument, sir.
But when you start, as I say, with the conclusion that you cannot have segregation, then there is no problem. If you start with the conclusion of a problem, there is no problem.
But Mr. Justice Frankfurter, I was trying to make three different points. I said that the first one was peculiarly narrow, under the McLaurin and the Sweatt decisions. The second point was that on a classification basis, these statutes were bad. The third point was the broader point, that racial distinctions in and of themselves are invidious. I consider it as a three-pronged attack. Any one of the three would be sufficient for reversal.
You may recall that this Court not so many years ago decided that the legislature of Louisiana could restrict the calling of pilots on the Mississippi to the question of who your father was.
Yes, sir.
And there were those of us who sustained that legislation, not because we thought it was admirable or because we thought it comported with human notions or because we believed in primogeniture, but for different reasons, that it was so imbedded in the conflict of the history of that problem in Louisiana that we thought on the whole that was an allowable justification.
I say, sir, that I do not think—
I am not taking that beside this case. I am not meaning to intimate any of that, as you well know, on this subject. I am just saying how the subjects are to be dealt with.
But Mr. Justice Frankfurter, I do not think that segregation in public schools is any more ingrained in the South than segregation in transportation, and this Court upset it in the Morgan case. I do not think it is any more ingrained.
It upset it in the Morgan case on the ground that it was none of the business of the state; it was an interstate problem.
That is a different problem. But a minute ago the very question was raised that we have to deal with realities, and it did upset that. Take the primary case. There is no more ingrained rule than there were in the cases of McLaurin and Sweatt, the graduate school cases.
I am willing to suggest that this problem is more complicated than the simple recognition of an absolute non possumus.
I agree that it is not only complicated. I agree that it is a tough problem. But I think that it is a problem that has to be faced.
That is why we are here.
That is what I appreciate, Your Honor.
But I say, sir, that most of my time is spent down in the South, and despite all these predictions as to what might happen, I do not think that anything is going to happen any more except on the graduate and professional level. And this Court can take notice of the reports that have been in papers such as The New York Times. But it seems to me on that question, this Court should go back to the case of Buchanan v. Warley, where on the question as to whether or not there was this great problem, this Court in Buchanan v, Warley said:
That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.
In this case, granting that there is a feeling of race hostility in South Carolina, if there be such a thing, or granting that there is that problem, we cannot have the individual rights subjected to this consideration of what the groups might do. For example, it was even argued that it will be better for both the Negro and the so-called white group. This record is not quite clear as to who is in the white group, because the superintendent of schools said that he did not know; all he knew was that Negroes were excluded. So I imagine that the other schools take in everybody.
So it seems to me that insofar as this case is concerned, whereas in the Kansas case there was a finding of fact that was favorable to the appellants—in this case the opinion of the court mentions the fact that the findings are embodied in the opinion, and the court in that case decided that the only issue would be these facilities, the curriculum, transportation, etcetera.
In the brief for the appellees in this case and the argument in the lower court, I have yet to hear anyone say that they denied that these children are harmed by reason of this segregation. Nobody denies that, at least up to now. So there is a grant, I should assume, that segregation in and of itself harms these children.
Now, the argument is made that because we are drawn into a broader problem down in South Carolina, because of a situation down there, that this statute should be upheld.
So there we have a direct cleavage from one side to the other side. I do not think any of that is significant. As a matter of fact, I think all of that argument is made without foundation. I do not believe that in the case of the sworn testimony of the witnesses, statements and briefs and quotations from magazine articles will counteract what is actually in the brief.
So what do we have in the record? We have testimony of physical inequality. It is admitted. We have the testimony of experts as to the exact harm which is inherent in segregation wherever it occurs. That I would assume is too broad for the immediate decision, because after all, the only point before this Court is the statute as it was applied in Clarendon County.
But I say, sir, that most of my time is spent down in the South, and despite all these predictions as to what might happen, I do not think that anything is going to happen any more except on the graduate and professional level. And this Court can take notice of the reports that have been in papers such as The New York Times. But it seems to me on that question, this Court should go back to the case of Buchanan v. Warley, where on the question as to whether or not there was this great problem, this Court in Buchanan v, Warley said:
That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges.
In this case, granting that there is a feeling of race hostility in South Carolina, if there be such a thing, or granting that there is that problem, we cannot have the individual rights subjected to this consideration of what the groups might do. For example, it was even argued that it will be better for both the Negro and the so-called white group. This record is not quite clear as to who is in the white group, because the superintendent of schools said that he did not know; all he knew was that Negroes were excluded. So I imagine that the other schools take in everybody.
So it seems to me that insofar as this case is concerned, whereas in the Kansas case there was a finding of fact that was favorable to the appellants—in this case the opinion of the court mentions the fact that the findings are embodied in the opinion, and the court in that case decided that the only issue would be these facilities, the curriculum, transportation, etcetera.
In the brief for the appellees in this case and the argument in the lower court, I have yet to hear anyone say that they denied that these children are harmed by reason of this segregation. Nobody denies that, at least up to now. So there is a grant, I should assume, that segregation in and of itself harms these children.
Now, the argument is made that because we are drawn into a broader problem down in South Carolina, because of a situation down there, that this statute should be upheld.
So there we have a direct cleavage from one side to the other side. I do not think any of that is significant. As a matter of fact, I think all of that argument is made without foundation. I do not believe that in the case of the sworn testimony of the witnesses, statements and briefs and quotations from magazine articles will counteract what is actually in the brief.
So what do we have in the record? We have testimony of physical inequality. It is admitted. We have the testimony of experts as to the exact harm which is inherent in segregation wherever it occurs. That I would assume is too broad for the immediate decision, because after all, the only point before this Court is the statute as it was applied in Clarendon County.
But if this Court would reverse and the case would be sent back, we are not asking for affirmative relief. That will not put anybody in any school. The only thing that we ask for is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem, to assign children on any reasonable basis they want to assign them on.
You mean, if we reverse, it will not entitle every mother to have her child go to a nonsegregated school in Clarendon County?
No, sir.
What will it do? Would you mind spelling this out? What would happen?
Yes, sir. The school board, I assume, would find some other method of distributing the children, a recognizable method, by drawing district lines.
What would that mean?
The usual procedure—
You mean that geographically the colored people all live in one district?
No, sir, they do not. They are mixed up somewhat.
Then why would not the children be mixed?
If they are in the district, they would be. But there might possibly be areas—
You mean we would have gerrymandering of school districts?
Not gerrymandering, sir. The lines could be equal.
I think that nothing would be worse than for this Court—I am expressing my own opinion—nothing would be worse, from my point of view, than for this Court to make an abstract declaration that segregation is bad and then have it evaded by tricks.
No, sir. As a matter of fact, sir, we have had cases where we have taken care of that. But the point is that it is my assumption that where this is done, it will work out, if I might leave the record, by statute in some states.
It would be more important information in my mind to have you spell out in concrete what would happen if this Court reverses and the case goes back to the district court for the entry of a decree.
I think, sir, that the decree would be entered which would enjoin the school officials from, one, enforcing the statute; two, from segregating on the basis of race or color. Then I think whatever district lines they draw, if it can be shown that those lines are drawn on the basis of race or color, then I think they would violate the injunction. If the lines are drawn on a natural basis, without regard to race or color, then I think that nobody would have any complaint.
For example, the colored child that is over here in this school would not be able to go to that school. But the only thing that would come down would be the decision that whatever rule you set in, if you set in, it shall not be on race, either actually or by any other way. It would violate the injunction, in my opinion.
For example, the colored child that is over here in this school would not be able to go to that school. But the only thing that would come down would be the decision that whatever rule you set in, if you set in, it shall not be on race, either actually or by any other way. It would violate the injunction, in my opinion.
There is a thing that I do not understand. Why would not that inevitably involve—unless you have Negro ghettoes, or if you find that language offensive, unless you have concentrations of Negroes, so that only Negro children would go there, and there would be no white children mixed with them, or vice versa—why would it not involve Negro children saying, "I want to go to this school instead of that school"?
That is the interesting thing in this procedure. They could move over into that district, if necessary. Even if you get stuck in one district, there is always an out, as long as this statute is gone.
There are several ways that can be done. But we have instances, if I might, sir, where they have been able to draw a line and to enclose—this is in the North—to enclose the Negroes, and in New York those lines have on every occasion been declared unreasonably drawn, because it is obvious that they were drawn for that purpose.
There are several ways that can be done. But we have instances, if I might, sir, where they have been able to draw a line and to enclose—this is in the North—to enclose the Negroes, and in New York those lines have on every occasion been declared unreasonably drawn, because it is obvious that they were drawn for that purpose.
Gerrymandering?
Yes, sir. As a matter of fact, they used the word "gerrymander."
So in South Carolina, if the decree was entered as we have requested, then the school district would have to decide a means other than race, and if it ended up that the Negroes were all in one school, because of race, they would be violating the injunction just as bad as they are by violating what we consider to be the Fourteenth Amendment now.
So in South Carolina, if the decree was entered as we have requested, then the school district would have to decide a means other than race, and if it ended up that the Negroes were all in one school, because of race, they would be violating the injunction just as bad as they are by violating what we consider to be the Fourteenth Amendment now.
Now, I think it is important to know, before one starts, where he is going. As to available schools, how would that cut across this problem? If everything was done that you wanted done, would there be physical facilities within such drawing of lines as you would regard as not evasive of the decree?
Most of the school buildings are now assigned to Negroes, so that the Negro buildings are scattered around in that county. Now, as to whether or not lines could be properly drawn, I say quite frankly, sir, I do not know. But I do know that in most of the southern areas—it might be news to the Court—there are very few areas that are predominantly one race or the other.
Are you going to argue the District of Columbia case?
No, sir. If you have any questions, I would try, but I cannot bind the other side.
I just wondered, in regard to this question that we are discussing, how what you are indicating or contemplating would work out in the District if tomorrow there were the requirement that there must be mixed groups.
Most of the schools in the District of Columbia would be integrated. There might possibly be some in the concentrated areas up in the northwest section. There might be. But I doubt it. But I think the question as to what would happen if such decree was entered—I again point out that it is actually a matter that is for the school authorities to decide, and it is not a matter for us, it seems to me, as lawyers, to recommend except where there is racial discrimination or discrimination on one side or the other.
But my emphasis is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the individual children. And the testimony in many instances is along that line.
So in South Carolina, if the district court issued a decree—and I hasten to add that in the second hearing when we were prevented from arguing segregation, the argument was made that on the basis of the fact that the schools were still unequal, we should get relief on the basis of the Sipuel decision—the court said in that case, no, that the only relief we could get would be this relief as of September, and in that case the court took the position that it would be impossible to break into the middle of the year. If I might anticipate a question on that, the point would come up as to, if a decree in this case should happen to be issued by the district court, or in a case similar to this, as to whether or not there would be a time given for the actual enrollment of the children, etcetera, and changing of children from school to school. It would be my position in a case like that, which is very much in answer to the brief filed by the United States in this case—it would be my position that the important thing is to get the principle established and if a decree were entered saying that facilities are declared to be unequal and that the appellants are entitled to an injunction, and then the district court issues the injunction, it would seem to me that it would go without saying that the local school board had the time to do it. But obviously it could not do it overnight, and it might take six months to do it one place and two months to do it another place.
Again, I say it is not a matter for judicial determination. That would be a matter for legislative determination. I would like to save my fifteen minutes for rebuttal.
But my emphasis is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the individual children. And the testimony in many instances is along that line.
So in South Carolina, if the district court issued a decree—and I hasten to add that in the second hearing when we were prevented from arguing segregation, the argument was made that on the basis of the fact that the schools were still unequal, we should get relief on the basis of the Sipuel decision—the court said in that case, no, that the only relief we could get would be this relief as of September, and in that case the court took the position that it would be impossible to break into the middle of the year. If I might anticipate a question on that, the point would come up as to, if a decree in this case should happen to be issued by the district court, or in a case similar to this, as to whether or not there would be a time given for the actual enrollment of the children, etcetera, and changing of children from school to school. It would be my position in a case like that, which is very much in answer to the brief filed by the United States in this case—it would be my position that the important thing is to get the principle established and if a decree were entered saying that facilities are declared to be unequal and that the appellants are entitled to an injunction, and then the district court issues the injunction, it would seem to me that it would go without saying that the local school board had the time to do it. But obviously it could not do it overnight, and it might take six months to do it one place and two months to do it another place.
Again, I say it is not a matter for judicial determination. That would be a matter for legislative determination. I would like to save my fifteen minutes for rebuttal.
Coming back to the question that Justice Black asked you, could I ask you what, if any, effect does your argument have on the Indian policy, the segregation of the Indians? How do you deal with that?
I think that again that we are in a position of having grown up. Indians are no longer wards of the Government. I do not think that they stand in any special category. And in all of the southern states that I know of, the Indians are in a preferred position so far as Negroes are concerned, and I do not know of any place where they are excluded.
In some respects, in taxes, at least, I wish I could claim to have a little Indian blood.
But the only time it ever came up was in the—
But on the historical argument, the philosophy of the Fourteenth Amendment which you contended for does not seem to have been applied by the people who adopted the Fourteenth Amendment, at least in the Indian case.
I think, sir, that if we go back even as far as Slaughter-House and come up through Strauder, where the Fourteenth Amendment was passed for the specific purpose of raising the newly freed slaves up, etcetera, I do not know.
Do you think that might not apply to the Indians?
I think it would. But I think that the biggest trouble with the Indians is that they just have not had the judgment or the wherewithal to bring lawsuits.
Maybe you should bring some up.
I have a full load now, Mr. Justice.
Mr. Davis.
ARGUMENT OF JOHN W. DAVIS, ESQ.,
ON BEHALF OF THE APPELLEES
ON BEHALF OF THE APPELLEES
May it please the Court:
I think if the appellants' construction of the Fourteenth Amendment should prevail here, there is no doubt in my mind that it would catch the Indian within its grasp just as much as the Negro. If it should prevail, I am unable to see why a state would have any further right to segregate its pupils on the ground of sex or on the ground of age or on the ground of mental capacity. If it may classify it for one purpose on the basis of admitted facts, it may, according to my contention, classify it for other.
Now, I want to address myself during the course of this argument to three propositions, and I will utilize the remaining minutes of the afternoon to state them.
The first thing which I want to contend for before the Court is that the mandate of the court below, which I quote, required:
... the defendants to proceed at once to furnish plaintiffs and other Negro pupils of said district educational facilities, equipment, curricula, and opportunities equal to those furnished white pupils.
That mandate has been fully complied with. We have been found to have obeyed the court's injunction. The question is no longer in the case, and the complaint which is made by the appellants in their brief, that the school doors should have been immediately thrown open instead of taking the time necessary to readjust the physical facilities, is a moot question at this stage of the case.
The second question to which I wish to address myself is that Article XIV, section 7, of the Constitution of South Carolina, and section 5377 of the Code, both making the separation of schools between white and colored mandatory, do not offend the Fourteenth Amendment of the Constitution of the United States or deny equal protection. The right of a state to classify the pupils in its public schools on the basis of sex or age or mental capacity, or race, is not impaired or affected by that Amendment.
Third, I want to say something about the evidence offered by the plaintiffs upon which counsel so confidently relied. I say that the evidence offered by the plaintiffs, be its merits what it may, deals entirely with legislative policy, and does not treat on constitutional right. Whether it does or not, it would be difficult for me to conceal my opinion that that evidence in and of itself is of slight weight and in conflict with the opinion of other and better informed sources.
I hope I have not laid out too much territory for the time that is allotted to me. Let me attack it seriatim.
I want to put this case in its proper frame, by reciting what has transpired up to this time, so that Your Honors may be sure that my assertion of full performance is not an idle boast.
When the first hearing was at an end, the court entered its decree, demanding us to proceed forthwith to furnish, not merely physical facilities, as my friend would have it, but educational facilities, equipment, curricula, and opportunities equal on the part of the state for the Negro as for the white pupil.
Now, the court could have stopped there, and for the enforcement of its decree it could have awaited the moment when some complainant would have come in and invoked process of contempt against the delinquent defendants. That would have satisfied the duty of the chancellor. He would have retained in his own hands the powers of enforcement which the rules of equity give him, and perhaps his conscience might have been at rest with the feeling that he had done all that judicially he was called upon to do.
But the court below went further. In order to ensure the obedience to its decree, it required the defendants within the period of six months, not later than six months, to report what progress they were making in the execution of the court's order. The court might have said, "You must do this tomorrow"; I gather from counsel that not even counsel for the appellants here contends so much.
Insofar as the equality, equalization required the building of buildings and, of course, the court knew, as every sensible man knew, that you do not get buildings by rubbing an Aladdin's lamp, and you cannot create them by court decree—to say that the day following this decree all this should have been done would have been brutus fulmen and no credit to the court or anybody else.
In December, within the allotted time, the defendants made report of progress. At that time, the case was on Your Honor's docket. Because of the fact that an appeal had been taken from so much of the decree below, they refused to strike down the constitution and the statute.
Thereupon, the district court sent that report to you, and you, not desiring to pass upon it, remanded the case to the district court, and called upon them to pass upon the report which had been made to them, and to free their hands entirely for such action as they might see fit. You vacated the order entered below.
The district court thereupon resumed control of the case. It set it down for a hearing in March of 1952, at which time the defendants filed a supplemental report showing the progress up to that precise day and minute. Thereupon, the court declared that the defendants had made every possible effort to comply with the decree of the court, that they had done all that was humanly possible, and that by the month of September, 1952, equality between the races in this area would have been achieved. So the record reads.
Now, I should just like briefly to summarize what the situation was that these reports exposed. They showed that in the State of South Carolina, under the leadership of the present Governor, there was a surge for educational reform and improvement, which I suspect has not been exceeded in any state in this Union. It began with the legislature, which adopted the act providing for the issuance of a maximum of 75 million dollars in bonds for school purposes—not an ultimate of 75 million dollars, but a maximum at any one time of 75 million dollars—and that to be supported and serviced by a three percent sales tax. Speaking from some slight personal experience, I can assert that it escapes very few transactions in that State.
That being done, the legislature set up an educational finance commission, with power to survey the educational system of the State, to consolidate districts for better finance, to allot funds to the districts all over the State in such manner as this commission might find to be appropriate. Thereupon, the commission goes to Clarendon County, which is the seat of the present drama. It finds that in Clarendon County there are 34 educational districts, so-called, each with its separate body of officers and administrators, and all of them bogged down, I take it, by similar poverty.
It directed that that county be readjusted, redistricted, into three districts, one, District No. 1 to contain the contentious District No. 22, with which the litigation began, and six others. I gather that counsel wants to reverse that process. Having brought these districts into unity and strength, he has some plan, the mathematics of which I do not entirely grasp, by which the districts will be redistricted again with resulting benefit to all concerned.
District No. 1 was created. Its officers entered this litigation, and agreed to be bound by the decree, and are here present.
The first thing that the district did was to provide for the building of a new Negro high school at Scott's Branch, and for the repair of the secondary school at Scott's Branch, for which it expended the sum of 261,000 dollars on a contract that they should be completed and put into use by September of 1952. I speak outside the record, but that has been accomplished.
It was also provided that it should purchase the site for some two Negro secondary schools, which should be serviced by this fund. 21,000 dollars was appropriated immediately for additional equipment, and those secondary schools are now on the verge of completion.
But what could be done immediately—and with this I shall close for the afternoon—
I think if the appellants' construction of the Fourteenth Amendment should prevail here, there is no doubt in my mind that it would catch the Indian within its grasp just as much as the Negro. If it should prevail, I am unable to see why a state would have any further right to segregate its pupils on the ground of sex or on the ground of age or on the ground of mental capacity. If it may classify it for one purpose on the basis of admitted facts, it may, according to my contention, classify it for other.
Now, I want to address myself during the course of this argument to three propositions, and I will utilize the remaining minutes of the afternoon to state them.
The first thing which I want to contend for before the Court is that the mandate of the court below, which I quote, required:
... the defendants to proceed at once to furnish plaintiffs and other Negro pupils of said district educational facilities, equipment, curricula, and opportunities equal to those furnished white pupils.
That mandate has been fully complied with. We have been found to have obeyed the court's injunction. The question is no longer in the case, and the complaint which is made by the appellants in their brief, that the school doors should have been immediately thrown open instead of taking the time necessary to readjust the physical facilities, is a moot question at this stage of the case.
The second question to which I wish to address myself is that Article XIV, section 7, of the Constitution of South Carolina, and section 5377 of the Code, both making the separation of schools between white and colored mandatory, do not offend the Fourteenth Amendment of the Constitution of the United States or deny equal protection. The right of a state to classify the pupils in its public schools on the basis of sex or age or mental capacity, or race, is not impaired or affected by that Amendment.
Third, I want to say something about the evidence offered by the plaintiffs upon which counsel so confidently relied. I say that the evidence offered by the plaintiffs, be its merits what it may, deals entirely with legislative policy, and does not treat on constitutional right. Whether it does or not, it would be difficult for me to conceal my opinion that that evidence in and of itself is of slight weight and in conflict with the opinion of other and better informed sources.
I hope I have not laid out too much territory for the time that is allotted to me. Let me attack it seriatim.
I want to put this case in its proper frame, by reciting what has transpired up to this time, so that Your Honors may be sure that my assertion of full performance is not an idle boast.
When the first hearing was at an end, the court entered its decree, demanding us to proceed forthwith to furnish, not merely physical facilities, as my friend would have it, but educational facilities, equipment, curricula, and opportunities equal on the part of the state for the Negro as for the white pupil.
Now, the court could have stopped there, and for the enforcement of its decree it could have awaited the moment when some complainant would have come in and invoked process of contempt against the delinquent defendants. That would have satisfied the duty of the chancellor. He would have retained in his own hands the powers of enforcement which the rules of equity give him, and perhaps his conscience might have been at rest with the feeling that he had done all that judicially he was called upon to do.
But the court below went further. In order to ensure the obedience to its decree, it required the defendants within the period of six months, not later than six months, to report what progress they were making in the execution of the court's order. The court might have said, "You must do this tomorrow"; I gather from counsel that not even counsel for the appellants here contends so much.
Insofar as the equality, equalization required the building of buildings and, of course, the court knew, as every sensible man knew, that you do not get buildings by rubbing an Aladdin's lamp, and you cannot create them by court decree—to say that the day following this decree all this should have been done would have been brutus fulmen and no credit to the court or anybody else.
In December, within the allotted time, the defendants made report of progress. At that time, the case was on Your Honor's docket. Because of the fact that an appeal had been taken from so much of the decree below, they refused to strike down the constitution and the statute.
Thereupon, the district court sent that report to you, and you, not desiring to pass upon it, remanded the case to the district court, and called upon them to pass upon the report which had been made to them, and to free their hands entirely for such action as they might see fit. You vacated the order entered below.
The district court thereupon resumed control of the case. It set it down for a hearing in March of 1952, at which time the defendants filed a supplemental report showing the progress up to that precise day and minute. Thereupon, the court declared that the defendants had made every possible effort to comply with the decree of the court, that they had done all that was humanly possible, and that by the month of September, 1952, equality between the races in this area would have been achieved. So the record reads.
Now, I should just like briefly to summarize what the situation was that these reports exposed. They showed that in the State of South Carolina, under the leadership of the present Governor, there was a surge for educational reform and improvement, which I suspect has not been exceeded in any state in this Union. It began with the legislature, which adopted the act providing for the issuance of a maximum of 75 million dollars in bonds for school purposes—not an ultimate of 75 million dollars, but a maximum at any one time of 75 million dollars—and that to be supported and serviced by a three percent sales tax. Speaking from some slight personal experience, I can assert that it escapes very few transactions in that State.
That being done, the legislature set up an educational finance commission, with power to survey the educational system of the State, to consolidate districts for better finance, to allot funds to the districts all over the State in such manner as this commission might find to be appropriate. Thereupon, the commission goes to Clarendon County, which is the seat of the present drama. It finds that in Clarendon County there are 34 educational districts, so-called, each with its separate body of officers and administrators, and all of them bogged down, I take it, by similar poverty.
It directed that that county be readjusted, redistricted, into three districts, one, District No. 1 to contain the contentious District No. 22, with which the litigation began, and six others. I gather that counsel wants to reverse that process. Having brought these districts into unity and strength, he has some plan, the mathematics of which I do not entirely grasp, by which the districts will be redistricted again with resulting benefit to all concerned.
District No. 1 was created. Its officers entered this litigation, and agreed to be bound by the decree, and are here present.
The first thing that the district did was to provide for the building of a new Negro high school at Scott's Branch, and for the repair of the secondary school at Scott's Branch, for which it expended the sum of 261,000 dollars on a contract that they should be completed and put into use by September of 1952. I speak outside the record, but that has been accomplished.
It was also provided that it should purchase the site for some two Negro secondary schools, which should be serviced by this fund. 21,000 dollars was appropriated immediately for additional equipment, and those secondary schools are now on the verge of completion.
But what could be done immediately—and with this I shall close for the afternoon—
What could be done immediately by this school board was done. Salaries of teachers were equalized. Curricula were made uniform, and the State of South Carolina appropriated money to furnish school buses for black and white. Of course, in these days, the schoolboy no longer walks. The figure of the schoolboy trudging four miles in the morning and back four in the afternoon swinging his books as he went is as much a figure of myth as the presidential candidate born in a log cabin. Both of these characters have disappeared.
The Court will adjourn.
Whereupon, at 4:30 o'clock p.m., argument in the above-entitled matter was recessed, to reconvene the next day, December 10, 1952.
Harry Briggs, Jr., et al. v. R.W. Elliott, et al.
Washington, D. C.
Wednesday, December 10, 1952
Wednesday, December 10, 1952
No. 101
Appellants
HARRY BRIGGS, ET AL.
Appellees
R. W. ELLIOTT, Chairman, J. D. CARSON, ET AL., Members of Board of Trustees of School District No. 22, Clarendon County, S.C., et al.
Oral argument in the above-entitled cause was resumed, pursuant to recess, at 12:10 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
JOHN W. DAVIS, ESQ., on behalf of Appellees—Resumed.
THURGOOD MARSHALL, ESQ., on behalf of Appellants.
THURGOOD MARSHALL, ESQ., on behalf of Appellants.
PROCEEDINGS
Case No. 101, Harry Briggs, Jr., et al., against R. W. Elliott, Chairman, et al.
Counsel are present.
Proceed.
ARGUMENT OF JOHN W. DAVIS, ESQ.,
ON BEHALF OF APPELLEES—RESUMED
ON BEHALF OF APPELLEES—RESUMED
If the Court please:
When the Court arose on yesterday, I was reciting the progress that had been made in the public school system in South Carolina, and with particular reference to the improvement of the facilities, equipment, curricula, and opportunities accorded to the colored students. I might go further on that subject, but I am content to read two sentences from the opinion of the court below. This is the opinion of Judge Parker:
The reports of December 21 and March 3 filed by defendants, which are admitted by plaintiffs to be true and correct and which are so found by the court, show beyond question that defendants have proceeded promptly and in good faith to comply with the court's decree.
They add:
There can be no doubt that as a result of the program in which defendants are engaged the educational facilities and opportunities afforded Negroes within the district will, by the beginning of the next school year beginning in September, 1952, be made equal to those afforded white persons.
The only additional fact which I want to mention, aside from leaving the remainder to my brief of the opinion of the court below, is a fact of which I think Mr. Marshall should take cognizance when he proceeds to his redistricting program, and that is the fact that in District No. 1, the district here in controversy, there are now, speaking of the report of last March, 2,799 registered Negro students and 295 registered white students. In other words, the proportion between the Negroes and the whites is about in the ratio of ten to one. And whether discrimination is to be abolished by introducing 2,800 Negro students in the schools now occupied by the whites, or conversely introducing 295 whites into the schools now occupied by 2,800 Negroes, the result in either event is one which one cannot contemplate with entire equanimity.
I come, then, to what is really the crux of the case. That is the meaning and interpretation of the Fourteenth Amendment to the Constitution of the United States. We devote to that important subject but five pages of our brief. We trust the Court will not treat that summary disposition of it as due to any lack of earnestness on our part.
We have endeavored to compress the outline of the argument for two reasons. The first is that the opinion of Judge Parker rendered below is so cogent and complete that it seems impossible to add anything to his reasoning. The second is, perhaps more compelling at the moment, that Your Honors have so often and so recently dealt with this subject that it would be a work of supererogation to remind you of the cases in which you have dealt with it or to argue with you, the authors, the meaning and scope of the opinions you have emitted.
But if, as lawyers or judges, we have ascertained the scope and bearing of the equal protection clause of the Fourteenth Amendment, our duty is done. The rest must be left to those who dictate public policy, and not to courts.
How should we approach it? I use the language of the Court: An Amendment to the Constitution should be read, you have said,
... in a sense most obvious to the common understanding at the time of its adoption. For it was for public adoption that it was proposed.
Still earlier you have said it is the duty of the interpreters,
... to place ourselves as nearly as possible in the condition of the men who framed the instrument.
What was the condition of those who framed the instrument? The resolution proposing the Fourteenth Amendment was proffered by Congress in June, 1866. In the succeeding month of July, the same Congress proceeded to establish or to continue separate schools in the District of Columbia, and from that good day to this Congress has not waivered in that policy. It has confronted the attack upon it repeatedly. During the life of Charles Sumner, over and over again, he undertook to amend the law of the District so as to provide for mixed and not for separate schools, and again and again he was defeated.
When the Court arose on yesterday, I was reciting the progress that had been made in the public school system in South Carolina, and with particular reference to the improvement of the facilities, equipment, curricula, and opportunities accorded to the colored students. I might go further on that subject, but I am content to read two sentences from the opinion of the court below. This is the opinion of Judge Parker:
The reports of December 21 and March 3 filed by defendants, which are admitted by plaintiffs to be true and correct and which are so found by the court, show beyond question that defendants have proceeded promptly and in good faith to comply with the court's decree.
They add:
There can be no doubt that as a result of the program in which defendants are engaged the educational facilities and opportunities afforded Negroes within the district will, by the beginning of the next school year beginning in September, 1952, be made equal to those afforded white persons.
The only additional fact which I want to mention, aside from leaving the remainder to my brief of the opinion of the court below, is a fact of which I think Mr. Marshall should take cognizance when he proceeds to his redistricting program, and that is the fact that in District No. 1, the district here in controversy, there are now, speaking of the report of last March, 2,799 registered Negro students and 295 registered white students. In other words, the proportion between the Negroes and the whites is about in the ratio of ten to one. And whether discrimination is to be abolished by introducing 2,800 Negro students in the schools now occupied by the whites, or conversely introducing 295 whites into the schools now occupied by 2,800 Negroes, the result in either event is one which one cannot contemplate with entire equanimity.
I come, then, to what is really the crux of the case. That is the meaning and interpretation of the Fourteenth Amendment to the Constitution of the United States. We devote to that important subject but five pages of our brief. We trust the Court will not treat that summary disposition of it as due to any lack of earnestness on our part.
We have endeavored to compress the outline of the argument for two reasons. The first is that the opinion of Judge Parker rendered below is so cogent and complete that it seems impossible to add anything to his reasoning. The second is, perhaps more compelling at the moment, that Your Honors have so often and so recently dealt with this subject that it would be a work of supererogation to remind you of the cases in which you have dealt with it or to argue with you, the authors, the meaning and scope of the opinions you have emitted.
But if, as lawyers or judges, we have ascertained the scope and bearing of the equal protection clause of the Fourteenth Amendment, our duty is done. The rest must be left to those who dictate public policy, and not to courts.
How should we approach it? I use the language of the Court: An Amendment to the Constitution should be read, you have said,
... in a sense most obvious to the common understanding at the time of its adoption. For it was for public adoption that it was proposed.
Still earlier you have said it is the duty of the interpreters,
... to place ourselves as nearly as possible in the condition of the men who framed the instrument.
What was the condition of those who framed the instrument? The resolution proposing the Fourteenth Amendment was proffered by Congress in June, 1866. In the succeeding month of July, the same Congress proceeded to establish or to continue separate schools in the District of Columbia, and from that good day to this Congress has not waivered in that policy. It has confronted the attack upon it repeatedly. During the life of Charles Sumner, over and over again, he undertook to amend the law of the District so as to provide for mixed and not for separate schools, and again and again he was defeated.
What is your answer, Mr. Davis, to the suggestion mentioned yesterday that at that time the conditions and relations between the two races were such that what might have been unconstitutional then would not be unconstitutional now?
My answer to that is that changed conditions may affect policy, but changed conditions cannot broaden the terminology of the Constitution; the thought is an administrative or a political question, and not a judicial one.
But the Constitution is a living document that must be interpreted in relation to the facts of the time in which it is interpreted. Did we not go through with that in connection with child labor cases, and so forth?
Oh, well, of course, changed conditions may bring things within the scope of the Constitution which were not originally contemplated, and of that perhaps the aptest illustration is the interstate commerce clause. Many things have been found to be interstate commerce which at the time of the writing of the Constitution were not contemplated at all. Many of them did not even exist. But when they come within the field of interstate commerce, then they become subject to congressional power, which is defined in terms of the Constitution itself. So circumstances may bring new facts within the purview of the constitutional provision, but they do not alter, expand or change the language that the framers of the Constitution have employed.
Mr. Davis, do you think that "equal" is a less fluid term than "commerce between the states"?
Less fluid?
Yes.
I have not compared the two on the point of fluidity.
Suppose you do it now.
I am not sure that I can approach it in just that sense.
The problem behind my question is whatever the phrasing of it would be.
That what is unequal today may be equal tomorrow or vice versa?
That is it.
That might be. I should not philosophize about it. But the effort in which I am now engaged is to show how those who submitted this Amendment and those who adopted it conceded it to be, and what their conduct by way of interpretation has been since its ratification in 1868.
What you are saying is, that as a matter of history, history puts a gloss upon "equal" which does not permit elimination or admixture of white and colored in this aspect to be introduced?
Yes, I am saying that.
That is what you are saying?
Yes, I am saying that.
I am saying that equal protection in the minds of the Congress of the United States did not contemplate mixed schools as a necessity.
I am saying that, and I rest on it, though I shall not go further into the congressional history on this subject, because my brother Korman, speaking for the District of Columbia, will enter that phase of it.
It is true that in the Constitution of the United States there is no equal protection clause. It is true that the Fourteenth Amendment was addressed primarily to the states. But it is inconceivable that the Congress which submitted it would have forbidden the states to employ an educational scheme which Congress itself was persistent in employing in the District of Columbia. I therefore urge that the action of Congress is a legislative interpretation of the meaning and scope of this Amendment, and a legislative interpretation of a legislative act no court, I respectfully submit, is justified in ignoring.
What did the states think about this at the time of the ratification? At the time the Amendment was submitted, there were 37 states in the Union. Thirty of them had ratified the Amendment at the time it was proclaimed in 1868. Of those thirty ratifying states, 23 either then had, or immediately installed, separate schools for white and colored children under their public school systems. Were they violating the Amendment which they had solemnly accepted? Were they conceiving of it in any other sense than that it did not touch their power over their public schools?
How do they stand today? Seventeen states in the Union today provide for separate schools for white and colored children, and four others make it permissive with their school boards. Those four are Wyoming, Kansas, of which we heard yesterday, New Mexico, and Arizona; so that you have 21 states today which conceive it their power and right to maintain separate schools if it suits their policy.
When we turn to the judicial branch, it has spoken on this question, perhaps with more repetition and in more cases than any other single separate constitutional question that now occurs to me. We have not larded our brief with quotations from the courts of last resort of the several states. It would be easy to do so. But we have assembled in our appendix a list of the cases which the highest courts in the states have decided on this question. I am not sure that that list is exhaustive. In fact, I am inclined to think that it is not exhaustive. But certainly it is impressive; and they speak with a single voice that their separate school system is not a violation of the Constitution of the United States.
What does this Court say? I repeat, I shall not undertake to interpret for Your Honors the scope and weight of your own opinions. In Plessy v. Ferguson, Cumming v. Richmond County Board of Regents, Gaines v. Canada, Sweatt v. Painter, and McLaurin v. Oklahoma, and there may be others for all I know, certainly this Court has spoken in the most clear and unmistakable terms to the effect that this segregation is not unlawful. I am speaking for those with whom I am associated.
We find nothing in the latest cases that modified that doctrine of "separate but equal" in the least. Sweatt v. Painter and similar cases were decided solely on the basis of inequality, as we think, and as we believe the Court intended.
It is a little late, said the court below, after this question has been presumed to be settled for ninety years—it is a little late to argue that the question is still at large.
I want to read just one of Judge Parker's sentences on that. Said he:
It is hardly reasonable to suppose that legislative bodies over so wide a territory, including the Congress of the United States, and great judges of high courts have knowingly defied the Constitution for so long a period or that they have acted in ignorance of the meaning of its provisions. The constitutional principle is the same now that it has been throughout this period, and if conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not for the courts. The members of the judiciary . . . have no more right to read their ideas of sociology into the Constitution than their ideas of economics.
It would be an interesting, though perhaps entirely useless, undertaking to enumerate the numbers of men charged with official duty in the legislative and the judicial branches of the Government who have declared that segregation is not per se unlawful. The members of Congress, year after year, and session after session, the members of state constitutional conventions, the members of state legislatures, year after year and session after session, the members of the higher courts of the states, the members of the inferior federal judiciary, and the members of this tribunal—what their number may be, I do not know, but I think it reasonably certain that it must mount well into the thousands, and to this I stress for Your Honors that every one of that vast group was bound by oath to support the Constitution of the United States and any of its Amendments. Is it conceivable that all that body of concurrent opinion was recreant to its duty or misunderstood the constitutional mandate, or was ignorant of the history which gave to the mandate its scope and meaning? I submit not.
Now, what are we told here that has made all that body of activity and learning of no consequence? Says counsel for the plaintiffs, or appellants, we have the uncontradicted testimony of expert witnesses that segregation is hurtful, and in their opinion hurtful to the children of both races, both colored and white. These witnesses severally described themselves as professors, associate professors, assistant professors, and one describes herself as a lecturer and adviser on curricula. I am not sure exactly what that means.
I did not impugn the sincerity of these learned gentlemen and lady.
It is true that in the Constitution of the United States there is no equal protection clause. It is true that the Fourteenth Amendment was addressed primarily to the states. But it is inconceivable that the Congress which submitted it would have forbidden the states to employ an educational scheme which Congress itself was persistent in employing in the District of Columbia. I therefore urge that the action of Congress is a legislative interpretation of the meaning and scope of this Amendment, and a legislative interpretation of a legislative act no court, I respectfully submit, is justified in ignoring.
What did the states think about this at the time of the ratification? At the time the Amendment was submitted, there were 37 states in the Union. Thirty of them had ratified the Amendment at the time it was proclaimed in 1868. Of those thirty ratifying states, 23 either then had, or immediately installed, separate schools for white and colored children under their public school systems. Were they violating the Amendment which they had solemnly accepted? Were they conceiving of it in any other sense than that it did not touch their power over their public schools?
How do they stand today? Seventeen states in the Union today provide for separate schools for white and colored children, and four others make it permissive with their school boards. Those four are Wyoming, Kansas, of which we heard yesterday, New Mexico, and Arizona; so that you have 21 states today which conceive it their power and right to maintain separate schools if it suits their policy.
When we turn to the judicial branch, it has spoken on this question, perhaps with more repetition and in more cases than any other single separate constitutional question that now occurs to me. We have not larded our brief with quotations from the courts of last resort of the several states. It would be easy to do so. But we have assembled in our appendix a list of the cases which the highest courts in the states have decided on this question. I am not sure that that list is exhaustive. In fact, I am inclined to think that it is not exhaustive. But certainly it is impressive; and they speak with a single voice that their separate school system is not a violation of the Constitution of the United States.
What does this Court say? I repeat, I shall not undertake to interpret for Your Honors the scope and weight of your own opinions. In Plessy v. Ferguson, Cumming v. Richmond County Board of Regents, Gaines v. Canada, Sweatt v. Painter, and McLaurin v. Oklahoma, and there may be others for all I know, certainly this Court has spoken in the most clear and unmistakable terms to the effect that this segregation is not unlawful. I am speaking for those with whom I am associated.
We find nothing in the latest cases that modified that doctrine of "separate but equal" in the least. Sweatt v. Painter and similar cases were decided solely on the basis of inequality, as we think, and as we believe the Court intended.
It is a little late, said the court below, after this question has been presumed to be settled for ninety years—it is a little late to argue that the question is still at large.
I want to read just one of Judge Parker's sentences on that. Said he:
It is hardly reasonable to suppose that legislative bodies over so wide a territory, including the Congress of the United States, and great judges of high courts have knowingly defied the Constitution for so long a period or that they have acted in ignorance of the meaning of its provisions. The constitutional principle is the same now that it has been throughout this period, and if conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not for the courts. The members of the judiciary . . . have no more right to read their ideas of sociology into the Constitution than their ideas of economics.
It would be an interesting, though perhaps entirely useless, undertaking to enumerate the numbers of men charged with official duty in the legislative and the judicial branches of the Government who have declared that segregation is not per se unlawful. The members of Congress, year after year, and session after session, the members of state constitutional conventions, the members of state legislatures, year after year and session after session, the members of the higher courts of the states, the members of the inferior federal judiciary, and the members of this tribunal—what their number may be, I do not know, but I think it reasonably certain that it must mount well into the thousands, and to this I stress for Your Honors that every one of that vast group was bound by oath to support the Constitution of the United States and any of its Amendments. Is it conceivable that all that body of concurrent opinion was recreant to its duty or misunderstood the constitutional mandate, or was ignorant of the history which gave to the mandate its scope and meaning? I submit not.
Now, what are we told here that has made all that body of activity and learning of no consequence? Says counsel for the plaintiffs, or appellants, we have the uncontradicted testimony of expert witnesses that segregation is hurtful, and in their opinion hurtful to the children of both races, both colored and white. These witnesses severally described themselves as professors, associate professors, assistant professors, and one describes herself as a lecturer and adviser on curricula. I am not sure exactly what that means.
I did not impugn the sincerity of these learned gentlemen and lady.
I am quite sure that they believe that they are expressing valid opinions on their subject. But there are two things notable about them. Not a one of them is under any official duty in the premises whatever; not a one of them has had to consider the welfare of the people for whom they are legislating or whose rights they were called on to adjudicate.
And only one of them professes to have the slightest knowledge of conditions in the states where separate schools are now being maintained. Only one of them professes any knowledge of the condition within the 17 segregating states.
I want to refer just a moment to that particular witness, Dr. Clark. Dr. Clark professed to speak as an expert and an informed investigator on this subject. His investigation consisted of visits to the Scott's Branch primary and secondary school at Scott's Branch, which he undertook at the request of counsel for the plaintiffs. He called for the presentation to himself of some 16 pupils between the ages of six and nine years, and he applied to them what he devised and what he was pleased to call an objective test. That consisted of offering to them sixteen white and colored dolls, and inviting them to select the doll they would prefer, the doll they thought was nice, the doll that looked bad, or the doll that looked most like themselves. He ascertained that ten out of his battery of sixteen preferred the white doll. Nine thought the white doll was nice, and seven thought it looked most like themselves. Eleven said that the colored doll was bad, and one that the white doll was bad. And out of that intensive investigation and that application of that thoroughly scientific test, he deduced the sound conclusion that segregation there had produced confusion in the individuals —and I use his language—"and their concepts about themselves conflicting in their personalities, that they have been definitely harmed in the development of their personalities."
That is a sad result, and we are invited to accept it as a scientific conclusion. But I am reminded of the scriptural saying, "Oh, that mine adversary had written a book." And Professor Clark, with the assistance of his wife, has written on this subject and has described a similar test which he submitted to colored pupils in the northern and nonsegregated schools. He found that 62 percent of the colored children in the South chose a white doll; 72 percent in the North chose the white doll; 52 percent of the children in the South thought the white doll was nice; 68 percent of the children in the North thought the white doll was nice; 49 percent of the children in the South thought the colored doll was bad; 71 percent of the children in the North thought the colored doll was bad.
Now, these latter scientific tests were conducted in non-segregating states, and with those results compared, what becomes of the blasting influence of segregation to which Dr. Clark so eloquently testifies?
The witness Trager, who is the lecturer and consultant on curricula, had never been in the South except when she visited her husband who was stationed at an Army post in Charleston during the war. And I gather that the visit was of somewhat brief character. She also was in search of scientific wisdom, and she submitted that same scientific test to a collection of children in the schools of Philadelphia, where segregation has been absent for many years. She made as a result of that what seems to have been surprising to her, the fact that in children from five to eight years of age, they were already aware, both white and colored, of racial differences between them. Now, that may be a scientific conclusion. It would be rather surprising, if the children were possessed of their normal senses, if they were ignorant of some racial differences between them, even at that early age.
I am tempted to digress, because I am discussing the weight and pith of this testimony, which is the reliance of the plaintiffs here to turn back this enormous weight of legislative and judicial precedent on this subject. I may have been unfortunate, or I may have been careless, but it seems to me that much of that which is handed around under the name of social science is an effort on the part of the scientist to rationalize his own preconceptions. They find usually, in my limited observation, what they go out to find.
One of these witnesses, Dr. Krech, speaks of a colored school, gives, as he says,
. . . what we call in our lingo environmental support for the belief that Negroes are in some way different from and inferior to white people, and that in turn, of course, supports and strengthens beliefs of racial differences, of racial inferiority.
I ran across a sentence the other day which somebody said who was equally as expert as Dr. Krech in the "lingo" of the craft. He described much of the social science as "fragmentary expertise based on an examined presupposition," which is about as scientific language as you can use, I suppose, but seems to be entirely descriptive.
Now, South Carolina is unique among the states in one particular. You have often heard it said that an ounce of experience is worth a pound of theory. South Carolina does not come to this policy as a stranger. She had mixed schools for twelve years, from 1865 to 1877. She had them as a result of the Constitutional Convention of 1865, which was led by a preacher of the Negro race, against whom I know nothing, who bore the somewhat distinguished name of Cardozo, and he forced through that convention the provision for mixed schools.
The then Governor of South Carolina, whose term was expiring, was the war governor, Governor Orr, who denounced the provision. He was succeeded by—I hope the term has lost its invidiousness—a carpetbagger from Maine, named Scott, and Scott denounced the provision. And Dr. Knight, the Professor of Education at the University of North Carolina, who has written on the subject, declares that it was the most unwise action of the period, and that that is a certainty.
When South Carolina moved from mixed to segregated schools, it did so in the light of experience, and in the light of the further fact, these authorities state, that it had been destructive to the public school system of South Carolina for fifty years after it was abolished.
Now, these learned witnesses do not have the whole field to themselves. They do not speak without contradiction from other sources. We quote in our brief—I suppose it is not testimony, but it is quotable material, and we are content to adopt it—Dr. Odum of North Carolina, who is perhaps the foremost investigator of educational questions in the entire South; Dr. Frank Graham, former president of the University of North Carolina; ex-Governor Darden, president of the University of Virginia; Hodding Carter, whose recent works on southern conditions have become classic; Gunnar Myrdal, Swedish scientist employed to investigate the race question for the Rockefeller Foundation; W. E. B. DuBois; Ambrose Caliver; and the witness Crow, who testified in this case, all of them opposing the item that there should be an immediate abolition of segregated schools.
Let me read a sentence or two from Dr. DuBois. I may be wrong about this, but I should think that he has been perhaps the most constant and vocal opponent of Negro oppression of any of his race in the country. Says he:
It is difficult to think of anything more important for the development of a people than proper training for their children; and yet I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, make mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their children to "fight" this thing out—but, dear God, at what a cost.
He goes on:
We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated.
If this question is a judicial question, if it is to be decided on the varying opinions of scholars, students, writers, authorities, and what you will, certainly it cannot be said that the testimony will be all one way. Certainly it cannot be said that a legislature conducting its public schools in accordance with the wishes of its people—it cannot be said that they are acting merely by caprice or by racial prejudice.
Says Judge Parker again:
The questions thus presented are not questions of constitutional right but of legislative policy, which must be formulated, not in vacuo or with doctrinaire disregard of existing conditions, but in realistic approach to the situations to which it is to be applied.
I want to refer just a moment to that particular witness, Dr. Clark. Dr. Clark professed to speak as an expert and an informed investigator on this subject. His investigation consisted of visits to the Scott's Branch primary and secondary school at Scott's Branch, which he undertook at the request of counsel for the plaintiffs. He called for the presentation to himself of some 16 pupils between the ages of six and nine years, and he applied to them what he devised and what he was pleased to call an objective test. That consisted of offering to them sixteen white and colored dolls, and inviting them to select the doll they would prefer, the doll they thought was nice, the doll that looked bad, or the doll that looked most like themselves. He ascertained that ten out of his battery of sixteen preferred the white doll. Nine thought the white doll was nice, and seven thought it looked most like themselves. Eleven said that the colored doll was bad, and one that the white doll was bad. And out of that intensive investigation and that application of that thoroughly scientific test, he deduced the sound conclusion that segregation there had produced confusion in the individuals —and I use his language—"and their concepts about themselves conflicting in their personalities, that they have been definitely harmed in the development of their personalities."
That is a sad result, and we are invited to accept it as a scientific conclusion. But I am reminded of the scriptural saying, "Oh, that mine adversary had written a book." And Professor Clark, with the assistance of his wife, has written on this subject and has described a similar test which he submitted to colored pupils in the northern and nonsegregated schools. He found that 62 percent of the colored children in the South chose a white doll; 72 percent in the North chose the white doll; 52 percent of the children in the South thought the white doll was nice; 68 percent of the children in the North thought the white doll was nice; 49 percent of the children in the South thought the colored doll was bad; 71 percent of the children in the North thought the colored doll was bad.
Now, these latter scientific tests were conducted in non-segregating states, and with those results compared, what becomes of the blasting influence of segregation to which Dr. Clark so eloquently testifies?
The witness Trager, who is the lecturer and consultant on curricula, had never been in the South except when she visited her husband who was stationed at an Army post in Charleston during the war. And I gather that the visit was of somewhat brief character. She also was in search of scientific wisdom, and she submitted that same scientific test to a collection of children in the schools of Philadelphia, where segregation has been absent for many years. She made as a result of that what seems to have been surprising to her, the fact that in children from five to eight years of age, they were already aware, both white and colored, of racial differences between them. Now, that may be a scientific conclusion. It would be rather surprising, if the children were possessed of their normal senses, if they were ignorant of some racial differences between them, even at that early age.
I am tempted to digress, because I am discussing the weight and pith of this testimony, which is the reliance of the plaintiffs here to turn back this enormous weight of legislative and judicial precedent on this subject. I may have been unfortunate, or I may have been careless, but it seems to me that much of that which is handed around under the name of social science is an effort on the part of the scientist to rationalize his own preconceptions. They find usually, in my limited observation, what they go out to find.
One of these witnesses, Dr. Krech, speaks of a colored school, gives, as he says,
. . . what we call in our lingo environmental support for the belief that Negroes are in some way different from and inferior to white people, and that in turn, of course, supports and strengthens beliefs of racial differences, of racial inferiority.
I ran across a sentence the other day which somebody said who was equally as expert as Dr. Krech in the "lingo" of the craft. He described much of the social science as "fragmentary expertise based on an examined presupposition," which is about as scientific language as you can use, I suppose, but seems to be entirely descriptive.
Now, South Carolina is unique among the states in one particular. You have often heard it said that an ounce of experience is worth a pound of theory. South Carolina does not come to this policy as a stranger. She had mixed schools for twelve years, from 1865 to 1877. She had them as a result of the Constitutional Convention of 1865, which was led by a preacher of the Negro race, against whom I know nothing, who bore the somewhat distinguished name of Cardozo, and he forced through that convention the provision for mixed schools.
The then Governor of South Carolina, whose term was expiring, was the war governor, Governor Orr, who denounced the provision. He was succeeded by—I hope the term has lost its invidiousness—a carpetbagger from Maine, named Scott, and Scott denounced the provision. And Dr. Knight, the Professor of Education at the University of North Carolina, who has written on the subject, declares that it was the most unwise action of the period, and that that is a certainty.
When South Carolina moved from mixed to segregated schools, it did so in the light of experience, and in the light of the further fact, these authorities state, that it had been destructive to the public school system of South Carolina for fifty years after it was abolished.
Now, these learned witnesses do not have the whole field to themselves. They do not speak without contradiction from other sources. We quote in our brief—I suppose it is not testimony, but it is quotable material, and we are content to adopt it—Dr. Odum of North Carolina, who is perhaps the foremost investigator of educational questions in the entire South; Dr. Frank Graham, former president of the University of North Carolina; ex-Governor Darden, president of the University of Virginia; Hodding Carter, whose recent works on southern conditions have become classic; Gunnar Myrdal, Swedish scientist employed to investigate the race question for the Rockefeller Foundation; W. E. B. DuBois; Ambrose Caliver; and the witness Crow, who testified in this case, all of them opposing the item that there should be an immediate abolition of segregated schools.
Let me read a sentence or two from Dr. DuBois. I may be wrong about this, but I should think that he has been perhaps the most constant and vocal opponent of Negro oppression of any of his race in the country. Says he:
It is difficult to think of anything more important for the development of a people than proper training for their children; and yet I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, make mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their children to "fight" this thing out—but, dear God, at what a cost.
He goes on:
We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated.
If this question is a judicial question, if it is to be decided on the varying opinions of scholars, students, writers, authorities, and what you will, certainly it cannot be said that the testimony will be all one way. Certainly it cannot be said that a legislature conducting its public schools in accordance with the wishes of its people—it cannot be said that they are acting merely by caprice or by racial prejudice.
Says Judge Parker again:
The questions thus presented are not questions of constitutional right but of legislative policy, which must be formulated, not in vacuo or with doctrinaire disregard of existing conditions, but in realistic approach to the situations to which it is to be applied.
Once more, Your Honors, I might say: What underlies this whole question? What is the great national and federal policy on this matter? Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not, of all the activities of government, the one which most nearly approaches the hearts and minds of people, the question of the education of their young?
Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact?
I respectfully submit to the Court, there is no reason assigned here why this Court or any other should reverse the findings of ninety years.
Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact?
I respectfully submit to the Court, there is no reason assigned here why this Court or any other should reverse the findings of ninety years.
Mr. Marshall.
REBUTTAL ARGUMENT OF
THURGOOD MARSHALL, ESQ.,
ON BEHALF OF APPELLANTS
THURGOOD MARSHALL, ESQ.,
ON BEHALF OF APPELLANTS
May it please the Court:
So far as the appellants are concerned in this case, at this point it seems to me that the significant factor running through all these arguments up to this point is that for some reason, which is still unexplained, Negroes are taken out of the main stream of American life in these states. There is nothing involved in this case other than race and color, and I do not need to go to the background of the statutes or anything else. I just read the statutes, and they say, "white and colored."
While we are talking about the feeling of the people in South Carolina, I think we must once again emphasize that under our form of government, these individual rights of minority people are not to be left to even the most mature judgment of the majority of the people, and that the only testing ground as to whether or not individual rights are concerned is in this Court.
If I might digress just for a moment, on this question of the will of the people of South Carolina, if Ralph Bunche were assigned to South Carolina, his children would have to go to a Jim Crow school. No matter how great anyone becomes, if he happens to have been born a Negro, regardless of his color, he is relegated to that school.
Now, when we talk of the reasonableness of this legislation, the reasonableness, the reasonableness of the Constitution of South Carolina, and when we talk about the large body of judicial opinion in this case, I respectfully remind the Court that the exact same argument was made in the Sweatt case, and the brief in the Sweatt case contained, not only the same form, but the exact same type of appendix showing all the ramifications of the several decisions which had repeatedly upheld segregated education.
I also respectfully remind the Court that in the Sweatt case, as the public policy of the State of Texas, they also filed a public opinion poll of Texas showing that by far the majority of the people of Texas at this late date wanted segregation.
I do not believe that that body of law has any more place in this case than it had in the Sweatt case.
I think we should also point out in this regard that when we talk about reasonableness, what I think the appellees mean is reasonable insofar as the legislature of South Carolina decided it to be reasonable, and reasonable to the people of South Carolina. But what we are arguing in this case is as to whether or not it is reasonableness within the decided cases of this Court on the Fourteenth Amendment. As to this particular law involved in South Carolina, the constitutional provision and the statute—the Constitution, I think, was in 1895—I do not know what this Court would have done if that statute had been brought before it at that time, but I am sure that this Court, regardless of its ultimate decision, would have tested the reasonableness of that classification, not by what the State of South Carolina wanted, but as to what the Fourteenth Amendment meant.
In the year 1952, when a statute is tested, it is not tested as to what is reasonable insofar as South Carolina is concerned; it must be tested as to what is reasonable as to this Court. That is why we consider the case that Mr. Justice Johnson decided, cited in our reply brief, that even if this case had been tested back in those days, this Court would have felt a responsibility to weigh it against the applicable decisions of the Fourteenth Amendment, not on the question as to what is good for South Carolina.
Insofar as the argument about the states having a right to classify students on the basis of sex, learning ability, etcetera, I do not know whether they do or not, but I do believe that if it could be shown that they were unreasonable, they would feel, too, that any of the actions of the state administrative officials that affect any classification must be tested by the regular rules set up by this Court.
So we in truth and in fact have what I consider to be the main issue in this case. They claim that our expert witnesses and all that we have produced are a legislative argument at best; that the witnesses were not too accurate, and were the run-of-the-mill scientific witnesses. But I think if it is true that there is a large body of scientific evidence on the other side, the place to have produced that was in the district court, and I do not believe that the State of South Carolina is unable to produce witnesses for financial or other reasons.
So far as the appellants are concerned in this case, at this point it seems to me that the significant factor running through all these arguments up to this point is that for some reason, which is still unexplained, Negroes are taken out of the main stream of American life in these states. There is nothing involved in this case other than race and color, and I do not need to go to the background of the statutes or anything else. I just read the statutes, and they say, "white and colored."
While we are talking about the feeling of the people in South Carolina, I think we must once again emphasize that under our form of government, these individual rights of minority people are not to be left to even the most mature judgment of the majority of the people, and that the only testing ground as to whether or not individual rights are concerned is in this Court.
If I might digress just for a moment, on this question of the will of the people of South Carolina, if Ralph Bunche were assigned to South Carolina, his children would have to go to a Jim Crow school. No matter how great anyone becomes, if he happens to have been born a Negro, regardless of his color, he is relegated to that school.
Now, when we talk of the reasonableness of this legislation, the reasonableness, the reasonableness of the Constitution of South Carolina, and when we talk about the large body of judicial opinion in this case, I respectfully remind the Court that the exact same argument was made in the Sweatt case, and the brief in the Sweatt case contained, not only the same form, but the exact same type of appendix showing all the ramifications of the several decisions which had repeatedly upheld segregated education.
I also respectfully remind the Court that in the Sweatt case, as the public policy of the State of Texas, they also filed a public opinion poll of Texas showing that by far the majority of the people of Texas at this late date wanted segregation.
I do not believe that that body of law has any more place in this case than it had in the Sweatt case.
I think we should also point out in this regard that when we talk about reasonableness, what I think the appellees mean is reasonable insofar as the legislature of South Carolina decided it to be reasonable, and reasonable to the people of South Carolina. But what we are arguing in this case is as to whether or not it is reasonableness within the decided cases of this Court on the Fourteenth Amendment. As to this particular law involved in South Carolina, the constitutional provision and the statute—the Constitution, I think, was in 1895—I do not know what this Court would have done if that statute had been brought before it at that time, but I am sure that this Court, regardless of its ultimate decision, would have tested the reasonableness of that classification, not by what the State of South Carolina wanted, but as to what the Fourteenth Amendment meant.
In the year 1952, when a statute is tested, it is not tested as to what is reasonable insofar as South Carolina is concerned; it must be tested as to what is reasonable as to this Court. That is why we consider the case that Mr. Justice Johnson decided, cited in our reply brief, that even if this case had been tested back in those days, this Court would have felt a responsibility to weigh it against the applicable decisions of the Fourteenth Amendment, not on the question as to what is good for South Carolina.
Insofar as the argument about the states having a right to classify students on the basis of sex, learning ability, etcetera, I do not know whether they do or not, but I do believe that if it could be shown that they were unreasonable, they would feel, too, that any of the actions of the state administrative officials that affect any classification must be tested by the regular rules set up by this Court.
So we in truth and in fact have what I consider to be the main issue in this case. They claim that our expert witnesses and all that we have produced are a legislative argument at best; that the witnesses were not too accurate, and were the run-of-the-mill scientific witnesses. But I think if it is true that there is a large body of scientific evidence on the other side, the place to have produced that was in the district court, and I do not believe that the State of South Carolina is unable to produce witnesses for financial or other reasons.
Can we not take judicial notice of writings by people who competently deal with these problems? Can I not take judicial notice of Myrdal's book without having him called as a witness?
Yes, sir. But I think when you take judicial notice of Gunnar Myrdal's book, we have to read the matter, and not take portions out of context. Gunnar Myrdal's whole book is against the argument.
That is a different point. I am merely going to the point that in these matters this Court takes judicial notice of accredited writings, and it does not have to call the writers as witnesses. How to inform the judicial mind, as you know, is one of the most complicated problems. It is better to have witnesses, but I did not know that we could not read the works of competent writers.
Mr. Justice Frankfurter, I did not say that it was bad. I said that it would have been better if they had produced the witnesses so that we would have had an opportunity to cross-examine and test their conclusions. For example, the authority of Hodding Carter, the particular article quoted, was a magazine article of a newspaperman answering another newspaperman, and I know of nothing further removed from scientific work than one newspaperman answering another.
I am not trying—
I am not trying—
I am not going to take issue with you on that.
No, sir. But it seems to me that in a case like this that the only way that South Carolina, under the test set forth in this case, can sustain that statute is to show that Negroes as Negroes—all Negroes—are different from everybody else.
Do you think it would make any difference to our problem if this record also contained the testimony of six professors from other institutions who gave contrary or qualifying testimony? Do you think we would be in a different situation?
You would, sir, but I do not believe that there are any experts in the country who would so testify. And the body of law is that—even the witnesses, for example, who testified in the next case coming up, the Virginia case, all of them, admitted that segregation in and of itself was harmful. They said that the relief would not be to break down segregation. But I know of no scientist that has made any study, whether he be anthropologist or sociologist, who does not admit that segregation harms the child.
Yes. But what the consequences of the proposed remedy are is relevant to the problem.
I think, sir, that the consequences of the removal of the remedy are a legislative and not a judicial argument, sir. I rely on Buchanan v. Warley, where this Court said that insofar as this is a tough problem, it was tough, but the solution was not to deprive people of their constitutional rights.
Then the testimony is irrelevant to the question.
I think the testimony is relevant as to whether or not it is a valid classification. That is on the classification point.
But the consequences of how you remedy a conceded wrong bear on the question of whether it is a fair classification.
I do not know. But it seems to me that the only way that we as lawyers could argue before this Court, and the only way that this Court could take judicial notice of what would happen, would be that the Attorney General or some responsible individual officer of the State of South Carolina would come to this Court and say that they could not control their own State.
No, that is not what I have in mind. I want to know from you whether I am entitled to take into account, in finally striking this judgment, whether I am entitled to take into account the reservation that Dr. Graham and two others, I believe, made in their report to the President. May I take that into account?
Yes, sir.
May I weigh that?
Yes, sir.
Then you have competent consideration without any testimony.
Yes, sir. But it is a policy matter. And that type of information, I do not believe, is more than persuasive when we consider constitutionally protected rights.
Of course, if it is written into the Constitution, then I do not care about the evidence. If it is in the Constitution, then all the testimony that you introduce is beside the point, in general.
I think, sir, that so far as the decisions of this Court, this Court has repeatedly said that you cannot use race as a basis of classification.
Very well. If that is a settled constitutional doctrine, then I do not care what any associate or full professor in sociology tells me. If it is in the Constitution, I do not care about what they say. But the question is: Is it in the Constitution?
This Court has said just that on other occasions. They said it in the Fifth Amendment cases, and they also said it in some of the Fourteenth Amendment cases, going back to Mr. Justice Holmes in the first primary case in Nixon v. Herndon. And I also think—I have no doubt in my mind—that this Court has said that these rights are present, and if all of the people in the State of South Carolina and most of the Negroes still wanted segregated schools, I understand the decision of this Court to be that any individual Negro has a right, if it is a constitutional right, to assert it, and he has a right to relief at the time he asserts that right.
Certainly. Any single individual, just one, if his constitutional rights are interfered with, can come to the bar of this Court and claim it.
Yes, sir.
But what we are considering and what you are considering is a question that is here for the very first time.
I agree, sir. And I think that the only issue is to consider as to whether or not that individual or small group, as we have here, of appellants, that their constitutionally protected rights have to be weighed over against what is considered to be the public policy of the State of South Carolina; and if what is considered to be the public policy of the State of South Carolina runs contrary to the rights of that individual, then the public policy of South Carolina—this Court, reluctantly or otherwise, is obliged to say that this policy has run up against the Fourteenth Amendment, and for that reason his rights have to be affirmed.
But I for one think—and the record shows, and there is some material cited in some of the amicus briefs in the Kansas case—that all of these predictions of things that were going to happen, they have never happened. And I for one do not believe that the people in South Carolina or those southern states are lawless people. Every single time that this Court has ruled, they have obeyed it, and I for one believe that rank and file people in the South will support whatever decision in this case is handed down.
But I for one think—and the record shows, and there is some material cited in some of the amicus briefs in the Kansas case—that all of these predictions of things that were going to happen, they have never happened. And I for one do not believe that the people in South Carolina or those southern states are lawless people. Every single time that this Court has ruled, they have obeyed it, and I for one believe that rank and file people in the South will support whatever decision in this case is handed down.
I have not heard that the bar of this case has suggested that South Carolina or Kansas will not obey whatever decree this Court hands down.
There was only one witness, and he was corrected by Judge Parker. That was in this particular case. So it seems to me, and I in closing would like to emphasize to the Court, if I may, that this question, the ultimate question of segregation at the elementary and high school levels, has come to this Court through the logical procedure of case after case, going all the way back to the Gaines case, and coming up to the present time.
We had hoped that we had put in the evidence into the record, the type of evidence which we considered this Court to have considered in the Sweatt and McLaurin cases, to demonstrate that at the elementary and high school levels, the same resulting evil which was struck down in the Sweatt and McLaurin cases exists, for the same reason, at the elementary and high school levels, and I say at this moment that none of that has been disputed.
The only thing put up against it is a legislative argument which would ultimately relegate the Negro appellants in this case to pleas with the legislature of South Carolina to do what they have never done in the past, to recognize their pleas.
We therefore respectfully urge that the judgment of the United States district court be reversed.
We had hoped that we had put in the evidence into the record, the type of evidence which we considered this Court to have considered in the Sweatt and McLaurin cases, to demonstrate that at the elementary and high school levels, the same resulting evil which was struck down in the Sweatt and McLaurin cases exists, for the same reason, at the elementary and high school levels, and I say at this moment that none of that has been disputed.
The only thing put up against it is a legislative argument which would ultimately relegate the Negro appellants in this case to pleas with the legislature of South Carolina to do what they have never done in the past, to recognize their pleas.
We therefore respectfully urge that the judgment of the United States district court be reversed.
Is there anything in the record which shows the purpose of the passage of the legislation in South Carolina?
No, sir. We did considerable research, and we had help on it. There is so much confusion and there are so many blank spots in between that we did not believe that it was in shape to give to anyone. As a matter of fact, at that time there was a terrific objection to public education, one; and, two, an objection to the compulsory attendance laws. So the three things got wound up together, the segregation and those two points.
Is it fair to assume that the legislation involving South Carolina, as these cases do, was passed for the purpose of avoiding racial friction?
I think that the people who wrote on it would say that. You bear in mind in South Carolina—I hate to mention it—but that was right in the middle of the Klan period and I cannot ignore that point. Considerable research in other states has shown that there were varying statements made in the debates, some of which could be interpreted as just plain race prejudice. But I think that the arguments back and forth in South Carolina, at least, you could draw no conclusion from them.
But we do know, and the authorities cited in the Government's brief in the Henderson case, and, if you will remember, in the law professor's brief in the Sweatt case—the authorities were collected to show that the effect of this has been to place upon the Negroes this badge of inferiority.
But we do know, and the authorities cited in the Government's brief in the Henderson case, and, if you will remember, in the law professor's brief in the Sweatt case—the authorities were collected to show that the effect of this has been to place upon the Negroes this badge of inferiority.
In the legislatures, I suppose there is a group of people, at least in the South, who would say that segregation in the schools was to avoid racial friction.
Yes, sir. Until today, there is a good-sized body of public opinion that would say that, and I would say respectable public opinion.
Even in that situation, assuming, then, that there is a disadvantage to the segregated group, the Negro group, does the legislature have to weigh as between the disadvantage of the segregated group and the advantage of the maintenance of law and order?
I think that the legislature should, sir. But I think, considering the legislatures, that we have to bear in mind that I know of no Negro legislator in any of these states, and I do not know whether they consider the Negro's side or not. It is just a fact. But I assume that there are people who will say that it was and is necessary, and my answer to that is, even if the concession is made that it was necessary in 1895, it is not necessary now be. cause people have grown up and understand each other.
They are fighting together and living together. For example today they are working together in other places. As a result of the ruling of this Court, they are going together on the higher level Just how far it goes—I think when we predict what might happen I know in the South where I spent most of my time, you will see white and colored kids going down the road together to school They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together.
They are fighting together and living together. For example today they are working together in other places. As a result of the ruling of this Court, they are going together on the higher level Just how far it goes—I think when we predict what might happen I know in the South where I spent most of my time, you will see white and colored kids going down the road together to school They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together.
I am not thinking of trouble. I am thinking of whether it is a problem of legislation or of the Judiciary.
I think, sir, that the ultimate authority for the asserted right by an individual in a minority group is in a body set aside to interpret our Constitution, which is our Court.
Undoubtedly that passes on the litigation.
Yes, sir.
But where there are disadvantages and advantages to be weighed, I take it that it is a legislative problem.
Insofar as the State is concerned, insofar as the majority of the people are concerned. But insofar as the minority—
The states have the right to weigh the advantages and the disadvantages of segregation, and to require equality of employment, for instance?
Yes, sir.
I think that each state has been given that authority by decisions of this Court.
And some states have, and others have not.
I think that is the main point in this case, as to what is best for the majority of the people in the states. I have no doubt—I think I am correct—that that is a legislative policy for the state legislature. But the rights of the minorities, as has been our whole form of government, have been protected by our Constitution, and the ultimate authority for determining that is this Court. I think that is the real difference. As to whether or not I, as an individual, am being deprived of my right is not legislative, but judicial.
Thank you.
Thank you, sir.
Whereupon, argument in the above-entitled case was concluded.
Dorothy E. Davis et al. v. County School Board of Prince Edward County, Virginia, et al.
Washington, D. C.
Wednesday, December 10, 1952
Wednesday, December 10, 1952
No. 191
Appellants
DOROTHY E. DAVIS, BERTHA M. DAVIS and INEZ D. DAVIS, etc., ET AL.
Appellees
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, ET AL.
The above-entitled cause came on for oral argument at 1:15 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
SPOTTSWOOD W. ROBINSON, III, ESQ., on behalf of the Appellants.
T. JUSTIN MOORE, ESQ., on behalf of the Appellees.
J. LINDSAY ALMOND, ESQ., on behalf of the Appellees.
T. JUSTIN MOORE, ESQ., on behalf of the Appellees.
J. LINDSAY ALMOND, ESQ., on behalf of the Appellees.
PROCEEDINGS
Case No. 191, Davis, et al., against County School Board of Prince Edward County, Virginia, et al.
Counsel are present.
OPENING ARGUMENT OF
SPOTTSWOOD W. ROBINSON, III, ESQ.,
ON BEHALF OF THE APPELLANTS
SPOTTSWOOD W. ROBINSON, III, ESQ.,
ON BEHALF OF THE APPELLANTS
May it please the Court:
This case comes before this Court upon appeal from the final decree of the United States District Court for the Eastern District of Virginia, denying an injunction against the enforcement of section 140 of the Constitution of Virginia, and section 22-221 of the Code of Virginia, each requiring that white and colored children be taught in separate schools.
The appellants, who were the plaintiffs below, are infant high school students residing in Prince Edward County, Virginia, and their respective parents and guardians. The appellees are the County School Board of Prince Edward County and the Division Superintendent of Schools of the County, who were the original defendants below, and who as officers of the State of Virginia enforce its segregation laws, and the Commonwealth of Virginia, which intervenes as a party defendant after the filing of the action.
The complaint in this case alleged that the original defendants maintain separate schools for white and Negro high school students residing in the county, but the public high school maintained for Negroes was unequal to the public high schools maintained for white students in plant, equipment, curricula, and other opportunities, advantages and facilities, and that it was impossible for the infant appellants to secure public high school opportunities, advantages, and facilities equal to those afforded white children so long as the segregation laws are in force.
The complaint therefore sought a judgment declaratory of the invalidity of the laws as a denial of appellant's rights secured by the due process and equal protection clauses of the Fourteenth Amendment, and an injunction restraining the appellees from enforcing these laws or from making any distinction based upon race or color among the children attending the high schools of Prince Edward County.
In their answer, the original defendants admitted that they were enforcing the segregation laws of the State, admitted that the Negro high school was inferior in plant and equipment to the two white high schools, but denied that it was otherwise unequal and denied that segregation in the public schools contravened any provision of the Federal Constitution.
After intervention by the Commonwealth, in its answer it made the same admissions and asserted the same defenses as did the original defendants.
There are three high schools in Prince Edward County, which are the Farmville High School and the Worsham High School, which are maintained for white students, and the Moton High School, which is maintained for Negro students.
Attendance of white children at the Farmville High School or the Worsham High School is largely determined according to the area in which the child lives. But the segregation laws of the State, so it was testified to in this record by the Division Superintendent of Schools, determine whether the child attends the Moton School on the one side or one of the other two schools on the other.
A three-judge district court was convened pursuant to sections 2281 and 2284 of Title 28 of the United States Code, and at the trial both the appellants and the appellees introduced evidence, including expert testimony, first as to the extent of the existing inequalities in the Negro high school as compared with the two white high schools with respect to physical facilities and curricula, and secondly, on the issue as to whether equality of educational opportunities and benefits can ever be afforded Negro children in a racially segregated public school system. The evidence on the second score will be summarized at a later portion of this argument.
At the conclusion of the trial, the district court found that the Moton High School for Negroes was inferior to the white schools, not only in plant and equipment, but also in curricula and means of transportation. It ordered the appellees to forthwith provide the appellants with curricula and transportation facilities substantially equal to those afforded to white students, and to proceed with all reasonable diligence and dispatch to remove the existing inequalities by building, furnishing, and providing a high school building and facilities for Negro students in accordance with the program, which the evidence for the appellees indicated would result in the availability for Negro students of a new Negro high school in September, 1953.
At the same time, the district court refused to enjoin the enforcement of the segregation laws or to restrain the appellees from assigning school space in the county on the basis of race or color, and in its opinion asserted the following grounds:
First, it said that on the issue of the effects of segregation in education, it accepted the decision in Briggs v. Elliott, the district court's decision, and the decisions of the Court of Appeals for the District of Columbia in Carr v. Corning, cases which, as the court said, had upheld segregation and had refused to decree that it should be abolished.
Additionally, the court said that on the issue of the effects of segregation, of the effects upon the pupil resulting from the fact of segregation itself, the court could not see that the plaintiffs' evidence overbalances the defendants'.
It further felt that nullification of the segregation laws was unwarranted in view of the evidence of the appellees that the segregation laws declare what the court called one of the two ways of life in Virginia, having an existence of more than eighty years; evidence that segregation had begotten greater opportunities for the Negro, including employment in Virginia alone of more Negro public school teachers than in all 31 nonsegregating states; in view of evidence which was offered by the appellees that in 63 of Virginia's 127 cities and counties, the high school facilities are equal to those for whites; in view of the evidence, or testimony submitted by the appellees' witnesses that the involuntary elimination of segregation would lessen public interest in and support of the public schools, and would injure both races, which the court felt was, in the language of the court,
. . . a weighted practical factor to be considered in determining whether a reasonable basis had been shown to exist for the continuation of the school segregation.
The court further felt that, having found no hurt or harm to either race, that ended its inquiry, stating that it was not for the court to adjudicate the policy as right or wrong, but that the Commonwealth of Virginia must determine for itself.
An appeal was duly taken to this Court from this decision under the provisions of sections 1253 and 2101(b) of Title 28 of the United States Code.
Probable jurisdiction was noted by this Court on October 8, 1952, and presented for decision in this case are the following questions:
First, whether the segregation laws of Virginia are invalid because violative of rights secured by the due process and equal protection clauses of the Fourteenth Amendment;
Secondly, whether after finding that the buildings, facilities, curricula, and means of transportation afforded appellants were equal to those afforded whites, the court should have issued a decree forthwith restraining the appellees from excluding the infant appellants from the superior secondary school facilities of the county on the basis of race or color, and whether or not under the due process and equal protection clauses, the appellants are entitled to equality in all aspects of the public secondary educational process, including all educationally significant factors affecting the development of skills, mind, and character, in addition to equality merely in physical facilities and curricula, and whether the district court should have so found on the evidence presented.
At the outset, I would like to place the Virginia case in what I consider to be its proper setting. Unlike Gebhart v. Belton, the Delaware case, this case does not present the situation of a finding of inequality of physical facilities and curricula coupled with an injunction against the continuance of segregation in these circumstances. In this case, the district court made a finding of inequality of physical facilities and curricula and still refused to enjoin the segregation practice in the school system in question.
Unlike Brown v. Board of Education, the Kansas case, this case does not present the situation of equal physical facilities and curricula coupled with a finding of injury resulting from the fact of segregation itself. In this case, the facilities and curricula were found to be unequal, and the district court, erroneously, in our view, made a finding that no harm resulted to the student from the fact of segregation.
Unlike Bolling v. Sharpe, the District of Columbia case, the appellants in this case did not concede an equality of physical facilities and curricula. But like in Bolling v. Sharpe and unlike the other state cases, we urge that state-imposed educational segregation is a denial of due process, as well as a denial of the equal protection of the laws.
I submit that it is important to distinguish between two dissimilar approaches to the basic problem in this case. It has been urged that the segregation laws derive validity as a consequence of a long duration supported and made possible by a long line of judicial decisions, including expressions in some of the decisions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the states. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling. This Court has not hesitated to change the course of its decision, although of long standing, when error has been demonstrated, and courts are even less reluctant to examine their decisions when it is plain that the conditions of the present are substantially different from those of the past.
No court has ever considered itself irrevocably bound into the future by its prior determinations. As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. While this Court has permitted the states to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met. Upon examination in the past, it has found such experimentation to be constitutionally wanting when predicated solely on the facts of race.
This case comes before this Court upon appeal from the final decree of the United States District Court for the Eastern District of Virginia, denying an injunction against the enforcement of section 140 of the Constitution of Virginia, and section 22-221 of the Code of Virginia, each requiring that white and colored children be taught in separate schools.
The appellants, who were the plaintiffs below, are infant high school students residing in Prince Edward County, Virginia, and their respective parents and guardians. The appellees are the County School Board of Prince Edward County and the Division Superintendent of Schools of the County, who were the original defendants below, and who as officers of the State of Virginia enforce its segregation laws, and the Commonwealth of Virginia, which intervenes as a party defendant after the filing of the action.
The complaint in this case alleged that the original defendants maintain separate schools for white and Negro high school students residing in the county, but the public high school maintained for Negroes was unequal to the public high schools maintained for white students in plant, equipment, curricula, and other opportunities, advantages and facilities, and that it was impossible for the infant appellants to secure public high school opportunities, advantages, and facilities equal to those afforded white children so long as the segregation laws are in force.
The complaint therefore sought a judgment declaratory of the invalidity of the laws as a denial of appellant's rights secured by the due process and equal protection clauses of the Fourteenth Amendment, and an injunction restraining the appellees from enforcing these laws or from making any distinction based upon race or color among the children attending the high schools of Prince Edward County.
In their answer, the original defendants admitted that they were enforcing the segregation laws of the State, admitted that the Negro high school was inferior in plant and equipment to the two white high schools, but denied that it was otherwise unequal and denied that segregation in the public schools contravened any provision of the Federal Constitution.
After intervention by the Commonwealth, in its answer it made the same admissions and asserted the same defenses as did the original defendants.
There are three high schools in Prince Edward County, which are the Farmville High School and the Worsham High School, which are maintained for white students, and the Moton High School, which is maintained for Negro students.
Attendance of white children at the Farmville High School or the Worsham High School is largely determined according to the area in which the child lives. But the segregation laws of the State, so it was testified to in this record by the Division Superintendent of Schools, determine whether the child attends the Moton School on the one side or one of the other two schools on the other.
A three-judge district court was convened pursuant to sections 2281 and 2284 of Title 28 of the United States Code, and at the trial both the appellants and the appellees introduced evidence, including expert testimony, first as to the extent of the existing inequalities in the Negro high school as compared with the two white high schools with respect to physical facilities and curricula, and secondly, on the issue as to whether equality of educational opportunities and benefits can ever be afforded Negro children in a racially segregated public school system. The evidence on the second score will be summarized at a later portion of this argument.
At the conclusion of the trial, the district court found that the Moton High School for Negroes was inferior to the white schools, not only in plant and equipment, but also in curricula and means of transportation. It ordered the appellees to forthwith provide the appellants with curricula and transportation facilities substantially equal to those afforded to white students, and to proceed with all reasonable diligence and dispatch to remove the existing inequalities by building, furnishing, and providing a high school building and facilities for Negro students in accordance with the program, which the evidence for the appellees indicated would result in the availability for Negro students of a new Negro high school in September, 1953.
At the same time, the district court refused to enjoin the enforcement of the segregation laws or to restrain the appellees from assigning school space in the county on the basis of race or color, and in its opinion asserted the following grounds:
First, it said that on the issue of the effects of segregation in education, it accepted the decision in Briggs v. Elliott, the district court's decision, and the decisions of the Court of Appeals for the District of Columbia in Carr v. Corning, cases which, as the court said, had upheld segregation and had refused to decree that it should be abolished.
Additionally, the court said that on the issue of the effects of segregation, of the effects upon the pupil resulting from the fact of segregation itself, the court could not see that the plaintiffs' evidence overbalances the defendants'.
It further felt that nullification of the segregation laws was unwarranted in view of the evidence of the appellees that the segregation laws declare what the court called one of the two ways of life in Virginia, having an existence of more than eighty years; evidence that segregation had begotten greater opportunities for the Negro, including employment in Virginia alone of more Negro public school teachers than in all 31 nonsegregating states; in view of evidence which was offered by the appellees that in 63 of Virginia's 127 cities and counties, the high school facilities are equal to those for whites; in view of the evidence, or testimony submitted by the appellees' witnesses that the involuntary elimination of segregation would lessen public interest in and support of the public schools, and would injure both races, which the court felt was, in the language of the court,
. . . a weighted practical factor to be considered in determining whether a reasonable basis had been shown to exist for the continuation of the school segregation.
The court further felt that, having found no hurt or harm to either race, that ended its inquiry, stating that it was not for the court to adjudicate the policy as right or wrong, but that the Commonwealth of Virginia must determine for itself.
An appeal was duly taken to this Court from this decision under the provisions of sections 1253 and 2101(b) of Title 28 of the United States Code.
Probable jurisdiction was noted by this Court on October 8, 1952, and presented for decision in this case are the following questions:
First, whether the segregation laws of Virginia are invalid because violative of rights secured by the due process and equal protection clauses of the Fourteenth Amendment;
Secondly, whether after finding that the buildings, facilities, curricula, and means of transportation afforded appellants were equal to those afforded whites, the court should have issued a decree forthwith restraining the appellees from excluding the infant appellants from the superior secondary school facilities of the county on the basis of race or color, and whether or not under the due process and equal protection clauses, the appellants are entitled to equality in all aspects of the public secondary educational process, including all educationally significant factors affecting the development of skills, mind, and character, in addition to equality merely in physical facilities and curricula, and whether the district court should have so found on the evidence presented.
At the outset, I would like to place the Virginia case in what I consider to be its proper setting. Unlike Gebhart v. Belton, the Delaware case, this case does not present the situation of a finding of inequality of physical facilities and curricula coupled with an injunction against the continuance of segregation in these circumstances. In this case, the district court made a finding of inequality of physical facilities and curricula and still refused to enjoin the segregation practice in the school system in question.
Unlike Brown v. Board of Education, the Kansas case, this case does not present the situation of equal physical facilities and curricula coupled with a finding of injury resulting from the fact of segregation itself. In this case, the facilities and curricula were found to be unequal, and the district court, erroneously, in our view, made a finding that no harm resulted to the student from the fact of segregation.
Unlike Bolling v. Sharpe, the District of Columbia case, the appellants in this case did not concede an equality of physical facilities and curricula. But like in Bolling v. Sharpe and unlike the other state cases, we urge that state-imposed educational segregation is a denial of due process, as well as a denial of the equal protection of the laws.
I submit that it is important to distinguish between two dissimilar approaches to the basic problem in this case. It has been urged that the segregation laws derive validity as a consequence of a long duration supported and made possible by a long line of judicial decisions, including expressions in some of the decisions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the states. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling. This Court has not hesitated to change the course of its decision, although of long standing, when error has been demonstrated, and courts are even less reluctant to examine their decisions when it is plain that the conditions of the present are substantially different from those of the past.
No court has ever considered itself irrevocably bound into the future by its prior determinations. As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. While this Court has permitted the states to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met. Upon examination in the past, it has found such experimentation to be constitutionally wanting when predicated solely on the facts of race.
Mr. Robinson, if I heard you right—and I was looking at your brief to clarify my impression—if you are right, this injunction is reversible because it violates the Gaines doctrine?
I would submit, Mr. Justice Frankfurter, for the additional reason—that is correct, sir.
Not for the additional reason. I should say it is for the prior reason. This Court ought not to pass on constitutional issues bigger than the record calls for.
Let me answer Your Honor's question this way. I believe, and I intend to argue, that by reason of the physical inequalities and the inequalities in curricula which the district court found and which were supported largely by uncontested testimony, that alone should have justified the issuance of an injunction which would have admitted these appellants to share the high school facilities of the county without regard to race; in other words, would have unsegregated the schools at that point.
We have specific appellants here, specific plaintiffs, and particular children, boys and girls, I take it—
That is correct, sir.
—who want to get to a high school.
That is correct, sir.
And you say that they ought to be allowed because they do not have adequate high schools with equal facilities?
I would answer the question this way. I do not know where they will go, sir. I do not mean to imply that all of them can get in a white high school, because I know that they cannot.
I am talking about your clients.
That is correct, sir.
And if you are right, then, any decree should have been issued according to Gaines v. Canada?
That is one of our decisions here. But we feel that the other question is also necessarily involved for additional reasons. If we got that decree, I take it that it would unsegregate the schools and keep them in that fashion only so long as there would be a showing, or we would be able to maintain a showing, of physical inequality.
Now, the appellants in this case say that they will have a new Negro high school available in September of 1953. But be that as it may, if their right to enjoy the superior facilities of public education depends upon the existence or the nonexistence of inequality, then it seems very fair to me that there is no permanency in the administration of the schools, and there is no permanency in the status of these appellants. Any way we look at the situation, it means that if the facilities are unequal, you cannot segregate. If the scope of the decision is limited to that, if the facilities are equal, you can segregate; consequently, as the facilities change in that regard, as equilibrium is disturbed by the variety of facts and circumstances present in any educational system, then under those circumstances we could have segregated or we could have nonsegregated education.
Now, the appellants in this case say that they will have a new Negro high school available in September of 1953. But be that as it may, if their right to enjoy the superior facilities of public education depends upon the existence or the nonexistence of inequality, then it seems very fair to me that there is no permanency in the administration of the schools, and there is no permanency in the status of these appellants. Any way we look at the situation, it means that if the facilities are unequal, you cannot segregate. If the scope of the decision is limited to that, if the facilities are equal, you can segregate; consequently, as the facilities change in that regard, as equilibrium is disturbed by the variety of facts and circumstances present in any educational system, then under those circumstances we could have segregated or we could have nonsegregated education.
But this Court, constituted as it is at this moment, has faced that problem in several cases, and has decided that with inequality, the order will be issued on that basis, and we shall not borrow trouble in 1953 or 1954 or whenever it is.
I agree with Your Honor entirely. My understanding of the past cases has been that the basis of the decision under those circumstances has been one upon which it was pretty nearly impossible to resume segregation at some future time.
Looking at the Gaines case, for example, the factors which this Court enumerated in its opinion, in order to make out the showing of inequality, not merely inequality of physical facilities and curricula—they were there—but this Court considered, and it based its opinion upon what it termed the more important considerations which were involved in a situation of that sort. And I certainly take it that after the decision in the Sweatt case, it is no longer possible for any state to have hope of establishing a segregated law school for Negro students.
Looking at the Gaines case, for example, the factors which this Court enumerated in its opinion, in order to make out the showing of inequality, not merely inequality of physical facilities and curricula—they were there—but this Court considered, and it based its opinion upon what it termed the more important considerations which were involved in a situation of that sort. And I certainly take it that after the decision in the Sweatt case, it is no longer possible for any state to have hope of establishing a segregated law school for Negro students.
But if Mr. Marshall is right, and your clients are going to go to present white schools, things might turn out to be so happy and congenial and so desirable that you do not know what the result may be.
I am fully aware of that, if Your Honor please. But it seems to me that there should be more in the way of stability in the disposition of a situation of this sort.
We have the matter of the administration of the schools, and also, I submit, we have the matter of the right of the pupils who are involved. And I just do not see how, if we simply rest the decision upon a narrow ground which will not afford any reasonable expectation—or let me put it this way—any sound assurance that whatever changes will occur in the system at the present time, as a consequence of those inequalities, will continue, but we might revert back to the situation where we are once the facilities are made physically equal and the same courses of instruction are put in, under those circumstances it seems to me that the normal disinclination to base a decision upon a broader ground—
We have the matter of the administration of the schools, and also, I submit, we have the matter of the right of the pupils who are involved. And I just do not see how, if we simply rest the decision upon a narrow ground which will not afford any reasonable expectation—or let me put it this way—any sound assurance that whatever changes will occur in the system at the present time, as a consequence of those inequalities, will continue, but we might revert back to the situation where we are once the facilities are made physically equal and the same courses of instruction are put in, under those circumstances it seems to me that the normal disinclination to base a decision upon a broader ground—
It is not disinclination. It is not a restriction of that order. It is not just a personal preference.
I understand that in the historical context, of course, considering the whole history of this nation, it is a fact that the legislation of a state should not be disturbed unless it is fatally in collision with the Constitution.
I should like to urge upon Your Honors in this connection that what we sought in this case was a permanent injunction. It seems to me that we do not get it. If we are simply limited to that particular phase of the matter, it means, as I have tried to emphasize here, that we are in a situation where we cannot depend on anything.
The schools may be unequal, if Your Honor please, tomorrow, and consequently we are shunted right on out.
I should like to urge upon Your Honors in this connection that what we sought in this case was a permanent injunction. It seems to me that we do not get it. If we are simply limited to that particular phase of the matter, it means, as I have tried to emphasize here, that we are in a situation where we cannot depend on anything.
The schools may be unequal, if Your Honor please, tomorrow, and consequently we are shunted right on out.
Assuming that you would be admitted by decree to the high schools that you seek to enter, would it not be necessary to admit them on a segregated basis as the law stands now?
Yes, I suppose so.
As the law stands now, you will be admitted on a segregated basis?
That is correct, sir.
Because you have not had a decision that below the grade of colleges you are required to have an association of students.
Then, of course, if Your Honor please, we might have the other situation where they will take the white students and put them into had schools. So consequently, I think any way we look at it, I agree with Your Honor's suggestion in that regard.
I submit that at least we get to the point, it seems to me, where the basis of decision must be something more than a basis which will permit of a shuttling of pupils back and forth into segregated schools and into an unsegregated system, something which would have no assurance, and something which I cannot conduce will be helpful, either to the school authorities or to the pupils involved.
I submit that at least we get to the point, it seems to me, where the basis of decision must be something more than a basis which will permit of a shuttling of pupils back and forth into segregated schools and into an unsegregated system, something which would have no assurance, and something which I cannot conduce will be helpful, either to the school authorities or to the pupils involved.
This is not a class suit, is it?
Yes, it is; yes, Your Honor. We brought it as a class suit on behalf of all Negroes similarly involved.
I might say for the benefit of the Court that I do not intend to unduly consume the Court's time on behalf of the question of constitutionality per se. But in view of the fact that I do feel that the question is in the Virginia case, I would like to be indulged for just a moment to make reference to a few things that I think are particularly important.
I have just said that on examination this Court had in the past found that legislation or other types of state activity, official activity, which were predicated solely on the fact of race were unconstitutional. I was going to make reference to the decisions of this Court in the area of the ownership and occupancy of real property, the Buchanan and Shelley cases, specially.
The Takahashi case opened the field of employment or occupation. Restrictions on the right to vote were Nixon v. Herndon, based solely on the question of race, and in the Court's opinion, having no relationship whatsoever to the end which the legislation sought to attain; and in the area of professional and graduate education, McLaurin v. the Oklahoma State Regents, which, incidentally, was a case in which there was no inequality present at all, but quite on the grounds of other factors which the Court fount to exist in the situation in which it was concluded that there was violation of the Fourteenth Amendment.
I might say for the benefit of the Court that I do not intend to unduly consume the Court's time on behalf of the question of constitutionality per se. But in view of the fact that I do feel that the question is in the Virginia case, I would like to be indulged for just a moment to make reference to a few things that I think are particularly important.
I have just said that on examination this Court had in the past found that legislation or other types of state activity, official activity, which were predicated solely on the fact of race were unconstitutional. I was going to make reference to the decisions of this Court in the area of the ownership and occupancy of real property, the Buchanan and Shelley cases, specially.
The Takahashi case opened the field of employment or occupation. Restrictions on the right to vote were Nixon v. Herndon, based solely on the question of race, and in the Court's opinion, having no relationship whatsoever to the end which the legislation sought to attain; and in the area of professional and graduate education, McLaurin v. the Oklahoma State Regents, which, incidentally, was a case in which there was no inequality present at all, but quite on the grounds of other factors which the Court fount to exist in the situation in which it was concluded that there was violation of the Fourteenth Amendment.
What do you conceive to be the purpose of the Virginia enactment of the statute?
If Your Honor please, I am in very much the same situation that counsel in the South Carolina case are. The only thing which appears in the record which might be helpful to the Court in that regard is the testimony of Doctor Colgate W. Darden, the present president of the University of Virginia, and former Governor of the State. That testimony commences in the record at page 451.
Doctor Darden went into an examination—he gave rather an outline of the historical development of public education in Virginia, and he said, according to his testimony—and it is a fact, as a check of the statutes will show—that segregation came into Virginia in pretty much the same way as it did in South Carolina, at the time when the public school system of Virginia was just getting under way.
Virginia embarked upon a broad program of public education about 1870, and the first provision with respect to the segregation of white and colored people appeared on the statute books of Virginia in that particular year. It did not appear in the Constitution of Virginia until about 1900.
On page 462 of the record, Doctor Darden characterized the problem before the court as a by-product, and a fearful by-product, of human slavery, and he went on to say that we are the inheritors of that system.
I think from the historical viewpoint there is much to sustain the position that the original notion behind the school segregation laws was to impose upon Negroes disabilities which prior to the time of the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments they labored under. That is the only thing that I can offer to this Court in the way of a justification.
Doctor Darden went into an examination—he gave rather an outline of the historical development of public education in Virginia, and he said, according to his testimony—and it is a fact, as a check of the statutes will show—that segregation came into Virginia in pretty much the same way as it did in South Carolina, at the time when the public school system of Virginia was just getting under way.
Virginia embarked upon a broad program of public education about 1870, and the first provision with respect to the segregation of white and colored people appeared on the statute books of Virginia in that particular year. It did not appear in the Constitution of Virginia until about 1900.
On page 462 of the record, Doctor Darden characterized the problem before the court as a by-product, and a fearful by-product, of human slavery, and he went on to say that we are the inheritors of that system.
I think from the historical viewpoint there is much to sustain the position that the original notion behind the school segregation laws was to impose upon Negroes disabilities which prior to the time of the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments they labored under. That is the only thing that I can offer to this Court in the way of a justification.
You say, to impose disabilities?
I beg your pardon. I meant, the Thirteenth, Fourteenth, and Fifteenth Amendments were passed to eliminate disabilities which were upon the Negroes prior to the time of the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments, which had as their purpose the elimination of those disabilities. Insofar as the statute is concerned, Doctor Darden speaks of it here, in his very words, as a by-product, and a fearful by-product, of human slavery.
Before moving on to the next point, I would like to urge upon the Court that the reasonableness or the unreasonableness of educational segregation per se at the elementary and high school levels has never been tested. Its validity in the previous decisions of this Court has been assumed to follow from its duration and acceptance over a long period of time.
As Mr. Marshall made reference, the duration of the particular practice has not been considered by this Court in the past to prevent reexamination of the problem. We had the same thing, for example, to come before the Court in the cases dealing with this problem at the graduate and professional levels, where it came here with a history of long duration; yet, the mere fact that the practice had existed for many years, the mere fact that it had become a part of the community life, did not, in the judgment of the Court, establish its validity.
The same thing is true with respect to the restrictive covenant area, the area of exclusion of Negroes from jury service, segregation of passengers in interstate commerce, all instances where there were practices of long duration, yet they were found to be constitutionally fatal, and this Court so held.
So it is our position in Virginia, on this particular score, that it should now be determined by the application of the normal constitutional standards, whether the legislation here involved meets the challenge of the Fourteenth Amendment, and we respectfully submit that upon such examination, they will be found to be lacking.
On the second point, as I have already said, the district court found that there was physical inequality and inequality of curricula. In these circumstances, we submit that the action which the district court should have taken at that particular time was to have enjoined the enforcement of segregation under those circumstances.
I should also like to point out that in addition to the finding of the district court, which is found on page 622 of the record, in which the court goes into some small amount of discussion of the extent of the inequality, our record is pretty well loaded with evidence, most of which was uncontradicted, showing physical inequalities in the various areas. As a matter of fact, the appellees did not even bother to cross-examine the chief witness that we put on the stand, whose testimony established these inequalities.
I should like to request the attention of the Court to the fact that the Farmville High School, one of the two white high schools, is a school which is accredited by the Southern Association of Colleges and Secondary Schools, while the Moton School for Negroes is not. As a consequence of this accreditation, the white graduate of Farmville will generally be admitted to institutions of higher learning outside the State on his record alone, while Negro graduates of Moton will generally be required to take examinations to get in, or, if admitted without examination, will be accorded only a probationary status.
Farmville also offers to its students the opportunity of membership in the National Honor Society, which creates educational motivation and affords preferences in college acceptance and employment.
Our evidence in this case shows not only these inequalities, but clearly demonstrated that these inequalities in themselves handicap Negro students in their educational endeavors and make it impossible for Negro students to obtain educational opportunities and advantages equal to those afforded white students.
While the district court did forthwith enjoin the continuation of discrimination in curricula offerings, I think it is important to note—and this is uncontradicted on this record—that lack of, inferiority of proper facilities for teaching many of the courses prevents advantageous instruction in some of these courses, and in some instances prevents those courses from being taught at all.
Going back for just a moment, the Court will recall that the district court here did enter an injunction requiring forthwith the elimination of discrimination with respect to transportation means and curricula. But while that is true, we are faced with the situation where, absent the particular facilities essential for teaching the course, or, if not that, the inferiority of the facilities for teaching the course, it simply is not possible, even though we have a decree which purports to forthwith equalize curricular offerings—
Before moving on to the next point, I would like to urge upon the Court that the reasonableness or the unreasonableness of educational segregation per se at the elementary and high school levels has never been tested. Its validity in the previous decisions of this Court has been assumed to follow from its duration and acceptance over a long period of time.
As Mr. Marshall made reference, the duration of the particular practice has not been considered by this Court in the past to prevent reexamination of the problem. We had the same thing, for example, to come before the Court in the cases dealing with this problem at the graduate and professional levels, where it came here with a history of long duration; yet, the mere fact that the practice had existed for many years, the mere fact that it had become a part of the community life, did not, in the judgment of the Court, establish its validity.
The same thing is true with respect to the restrictive covenant area, the area of exclusion of Negroes from jury service, segregation of passengers in interstate commerce, all instances where there were practices of long duration, yet they were found to be constitutionally fatal, and this Court so held.
So it is our position in Virginia, on this particular score, that it should now be determined by the application of the normal constitutional standards, whether the legislation here involved meets the challenge of the Fourteenth Amendment, and we respectfully submit that upon such examination, they will be found to be lacking.
On the second point, as I have already said, the district court found that there was physical inequality and inequality of curricula. In these circumstances, we submit that the action which the district court should have taken at that particular time was to have enjoined the enforcement of segregation under those circumstances.
I should also like to point out that in addition to the finding of the district court, which is found on page 622 of the record, in which the court goes into some small amount of discussion of the extent of the inequality, our record is pretty well loaded with evidence, most of which was uncontradicted, showing physical inequalities in the various areas. As a matter of fact, the appellees did not even bother to cross-examine the chief witness that we put on the stand, whose testimony established these inequalities.
I should like to request the attention of the Court to the fact that the Farmville High School, one of the two white high schools, is a school which is accredited by the Southern Association of Colleges and Secondary Schools, while the Moton School for Negroes is not. As a consequence of this accreditation, the white graduate of Farmville will generally be admitted to institutions of higher learning outside the State on his record alone, while Negro graduates of Moton will generally be required to take examinations to get in, or, if admitted without examination, will be accorded only a probationary status.
Farmville also offers to its students the opportunity of membership in the National Honor Society, which creates educational motivation and affords preferences in college acceptance and employment.
Our evidence in this case shows not only these inequalities, but clearly demonstrated that these inequalities in themselves handicap Negro students in their educational endeavors and make it impossible for Negro students to obtain educational opportunities and advantages equal to those afforded white students.
While the district court did forthwith enjoin the continuation of discrimination in curricula offerings, I think it is important to note—and this is uncontradicted on this record—that lack of, inferiority of proper facilities for teaching many of the courses prevents advantageous instruction in some of these courses, and in some instances prevents those courses from being taught at all.
Going back for just a moment, the Court will recall that the district court here did enter an injunction requiring forthwith the elimination of discrimination with respect to transportation means and curricula. But while that is true, we are faced with the situation where, absent the particular facilities essential for teaching the course, or, if not that, the inferiority of the facilities for teaching the course, it simply is not possible, even though we have a decree which purports to forthwith equalize curricular offerings—
What is your solution to that problem?
The solution, we submit, was not the solution taken by the district court—
I say, what is your solution?
That, under the circumstances, the court should have immediately entered an injunction which would have prevented
the school authorities from assigning school space in the county on the basis of race, would have removed—
the school authorities from assigning school space in the county on the basis of race, would have removed—
If you did not have the facilities and if you did not have the teachers, how would you take care of them, regardless of what kind of curricula you had?
There are a sufficient number of teachers in the county, Mr. Chief Justice, to take care of all of the students. There is a sufficient amount of school space in the county to take care of all the students.
The differences here are—
The differences here are—
You mean, to take them out of this particular locality and transport them over to some other part of the county?
No. At the present time, if Your Honor please, we have the situation where the white children are getting these courses; Negro children are getting, not all of them, but they are getting some of these courses, anyway. But the trouble is that over in the Negro school you have these inferiorities.
Now, we submit that you cannot continue to discriminate against Negroes, or these Negro students; under the circumstances what you do is, you simply make all the facilities in the county available to all the pupils, without restriction or assignment to particular schools on the basis of race.
Now, we submit that you cannot continue to discriminate against Negroes, or these Negro students; under the circumstances what you do is, you simply make all the facilities in the county available to all the pupils, without restriction or assignment to particular schools on the basis of race.
What was the order of the district court?
The district court did not order—
I did not ask you what they did not do; what did they do?
The district court on the matter of courses forthwith enjoined discrimination in the curricular offerings. That was the order of the district court. I was trying to make the distinction, if the Chief Justice please, between the so-called equalization decree and what I would call an antisegregation decree.
In this regard—and I think that I have already pretty well indicated our position—we feel that, in view of the fact that in this particular area we are dealing with an exercise of state power which has been shown to affect rights which are secured by the Fourteenth Amendment, an area in which the authority of the State is subordinate to the mandate of the Amendment, that whatever the fate of educational segregation may be under other circumstances, it is perfectly plain that it cannot obtain in the face of these inequalities.
As this Court has on several occasions said, the rights which are involved are personal and present, and the Constitution does not countenance any moratorium upon the satisfaction of these particular rights. So under the line of decisions of this Court, commencing with Gaines and going right straight through with Sweatt, we feel that the relief which I have suggested in arguing here today should have been granted by the district court.
I should also like to point out that we feel that there are additional reasons why this equalization decree should not have been entered, and I think I can be brief in this regard, because Mr. Marshall in his argument touched upon this yesterday.
We feel that any undertaking by a court to establish or maintain constitutional equality by judicial decree simply means that the court is in the business of supervising the school system and is in there indefinitely. We are not dealing with a physical thing. We are not dealing with a static thing. We are dealing with an educational system that has a number of variables and a number of dissimilarities. We have schools that are different in size, location, and environment, and we have teachers who differ in ability, personality, and effectiveness, and consequently their teachings vary in value.
So consequently, all up and down the educational system we are going to find points of difference. Additionally, education is an ever-growing and progressing field, and facilities and methods are constantly changing. They get better as experience and need demonstrate the way. As a matter of fact, several of the witnesses for the appellees testified that, notwithstanding an effort to provide equal buildings and facilities and equally well prepared teachers, identity of educational opportunity could not be afforded under any circumstances, and at the very best the facilities could only be made comparable or approximately equal.
Consequently, we submit that this is a task for which the Court's machinery is not entirely suited, and consequently the regulation or maintenance of constitutional equality by an equalization decree embracing, as it does, the necessity that pupils and school authorities almost constantly stay in court should be avoided, if possible.
We have also set forth in our brief something of the history of the equalization decree in Virginia. There have been four cases in which permanent injunctions against discrimination, upon a finding that there was inequality of curricula or inequality of physical facilities, have been forthcoming. Nevertheless, in each instance it was necessary, after the decree, to have further proceedings in the court with respect to efforts to obtain that sort of educational equality.
On the final point, I should like to say this: As I indicated earlier in the argument, the evidence in Virginia was conflicting—I should put it this way: There was evidence on both sides, evidence offered by both sides on the question of harm or the effect resulting from segregation itself. The witness for the appellees—
In this regard—and I think that I have already pretty well indicated our position—we feel that, in view of the fact that in this particular area we are dealing with an exercise of state power which has been shown to affect rights which are secured by the Fourteenth Amendment, an area in which the authority of the State is subordinate to the mandate of the Amendment, that whatever the fate of educational segregation may be under other circumstances, it is perfectly plain that it cannot obtain in the face of these inequalities.
As this Court has on several occasions said, the rights which are involved are personal and present, and the Constitution does not countenance any moratorium upon the satisfaction of these particular rights. So under the line of decisions of this Court, commencing with Gaines and going right straight through with Sweatt, we feel that the relief which I have suggested in arguing here today should have been granted by the district court.
I should also like to point out that we feel that there are additional reasons why this equalization decree should not have been entered, and I think I can be brief in this regard, because Mr. Marshall in his argument touched upon this yesterday.
We feel that any undertaking by a court to establish or maintain constitutional equality by judicial decree simply means that the court is in the business of supervising the school system and is in there indefinitely. We are not dealing with a physical thing. We are not dealing with a static thing. We are dealing with an educational system that has a number of variables and a number of dissimilarities. We have schools that are different in size, location, and environment, and we have teachers who differ in ability, personality, and effectiveness, and consequently their teachings vary in value.
So consequently, all up and down the educational system we are going to find points of difference. Additionally, education is an ever-growing and progressing field, and facilities and methods are constantly changing. They get better as experience and need demonstrate the way. As a matter of fact, several of the witnesses for the appellees testified that, notwithstanding an effort to provide equal buildings and facilities and equally well prepared teachers, identity of educational opportunity could not be afforded under any circumstances, and at the very best the facilities could only be made comparable or approximately equal.
Consequently, we submit that this is a task for which the Court's machinery is not entirely suited, and consequently the regulation or maintenance of constitutional equality by an equalization decree embracing, as it does, the necessity that pupils and school authorities almost constantly stay in court should be avoided, if possible.
We have also set forth in our brief something of the history of the equalization decree in Virginia. There have been four cases in which permanent injunctions against discrimination, upon a finding that there was inequality of curricula or inequality of physical facilities, have been forthcoming. Nevertheless, in each instance it was necessary, after the decree, to have further proceedings in the court with respect to efforts to obtain that sort of educational equality.
On the final point, I should like to say this: As I indicated earlier in the argument, the evidence in Virginia was conflicting—I should put it this way: There was evidence on both sides, evidence offered by both sides on the question of harm or the effect resulting from segregation itself. The witness for the appellees—
What did the court say about that?
The court concluded that, first, it found no hurt or harm resulting from segregation to the pupils of either race. Secondly, the court said that, on the fact issue as to whether Negroes could obtain in a separate school an equal education, the court could not say that the evidence for the plaintiffs overbalanced the evidence for the defendants.
Our testimony went quite fully into the matter, and I will not bother at the present time—we set it forth in pretty good summary, I think, in our brief—to summarize it here. But I should like to make these comments addressed to the disposition which was made of this evidence by the district court.
Notwithstanding the fact that the district court concluded that there was no harm or hurt to any student, upon the examination of the evidence submitted by the appellees, the situation actually is that all of their experts who testified except one admitted that there was either harm, or that there was a possibility of harm.
Additionally, on the question as to whether separate education can ever afford equal educational opportunity, the witnesses who expressed the opinion for the appellees that it was possible that there might be equality in a separate school based their conclusion upon the conditions existent in Virginia at the present time. They were influenced by what the situation would be in the event race should be removed as a factor in the educational system, and consequently predicated the opinions under those circumstances. We submit that, under these conditions, a reexamination of this evidence will demonstrate that the conclusion of the district court in this particular regard is without foundation and consequently it should not be held binding upon this Court.
I would like to reserve the remainder of my time for rebuttal.
Our testimony went quite fully into the matter, and I will not bother at the present time—we set it forth in pretty good summary, I think, in our brief—to summarize it here. But I should like to make these comments addressed to the disposition which was made of this evidence by the district court.
Notwithstanding the fact that the district court concluded that there was no harm or hurt to any student, upon the examination of the evidence submitted by the appellees, the situation actually is that all of their experts who testified except one admitted that there was either harm, or that there was a possibility of harm.
Additionally, on the question as to whether separate education can ever afford equal educational opportunity, the witnesses who expressed the opinion for the appellees that it was possible that there might be equality in a separate school based their conclusion upon the conditions existent in Virginia at the present time. They were influenced by what the situation would be in the event race should be removed as a factor in the educational system, and consequently predicated the opinions under those circumstances. We submit that, under these conditions, a reexamination of this evidence will demonstrate that the conclusion of the district court in this particular regard is without foundation and consequently it should not be held binding upon this Court.
I would like to reserve the remainder of my time for rebuttal.
You spoke of the fact that you depended, not only on equal protection, but due process.
Yes, sir.
Did I hear you make a distinction between the two?
I would be glad to do so at the present time.
Is there a distinction, in your mind?
I think that I can say this: Anything that due process will catch, I think equal protection will catch, in this area. But certainly a legislative enactment which makes a distinction based solely on race in the enjoyment of the educational program offered by the State, I think, would be that type of arbitrary and unreasonable legislation which would be in violation of the due process clause.
You could have a valid classification under equal protection; you could have a classification under due process?
That is correct, sir.
You do not make any point on that?
It is also conceivable to me that you might have the other situation, though, by reason of the fact that I fee in this particular instance certainly the legislation is caught by the one or by the other.
Mr. Moore?
ARGUMENT OF T. JUSTIN MOORE, ESQ.,
ON BEHALF OF THE APPELLEES
ON BEHALF OF THE APPELLEES
May it please the Court:
We believe it to be particularly fortunate that the Court concluded to assume for argument all five of these cases together, because while in history each case stands on its own record, there is, of course, one main stream which runs through all of the cases, and it is obvious from the arguments already made by counsel for the appellants that that is the real question with which they are concerned, namely, to test finally, if possible, the issue as to whether the mere fact of segregation by law is a denial of equal protection.
Now, the Virginia case is one which is equally helpful, I believe not only in respect of its own setting, but in its bearing on these other cases.
I am going to undertake in the discussion of this case to deal with it in that sort of way, not merely from the standpoint of our case, but also in its bearing on the other.
There are several distinctive features of this Virginia case that I want to call to Your Honors' attention at the outset. The first is the nature of the record that you find here. You were impressed, I am sure, with the fact that you have a much larger record. We believe that was not unnecessarily made large. When we were requested to represent this little county of Prince Edward and also to be associated with the Attorney in the representation of the Commonwealth, we found that there had been these four or five cases in the federal court where the question of inequality of facilities had been the issue, and that was the only issue. Where the courts had found that to exist, they promptly made decrees requiring equalization.
We also found that the State had undertaken an amazing program of expenditures of money and expansion of the public school system, particularly over the last twenty years, with the view to making the facilities equal for Negroes and whites, so that perhaps with the exception of the State of South Carolina, Virginia stands probably at the top among all these southern states in that program, which I am going to refer to more fully a little later.
But we also found, in comparing and getting the benefit of the Kansas and the South Carolina case, which has just been heard, that these appellants had laid all this great stress on what they call the psychological issue. But we also found that there was quite a conflict of opinion among the experts on that matter.
So we undertook to prepare a full record, and Your Honors would find, when you browse through this record, that you have, instead of, as in the Kansas case, where all of these teachers and educators and psychologists testified on one side, and in the South Carolina case on the appellant's side—you find a great array of very distinguished persons who testified in the Virginia case in direct conflict on this crucial question of fact. So the first distinctive feature is the fuller record.
The second distinctive feature is the difference in the findings of the court. The court, in contrast to the Kansas case, based upon the historical background in Virginia and upon all this evidence, found on the crucial questions which these gentlemen had stressed so much that they failed to prove their case, even on that point. That is one of the main distinctive features in this case.
There also will be presented the difference as compared to—with the Kansas case, as to the great impact that would result in Virginia from a sudden elimination of segregation.
Now, those are among the issues. There is this other distinctive feature, which I should mention at the outset. This case on this point is similar to the South Carolina case in large degree, because when the case of South Carolina was tried, the facilities were not yet completed on the first trial, and were not completed on the second hearing. But when the case reaches this Court, they had been completed.
Now, Virginia is just a little bit behind South Carolina in that respect. But there is no doubt about it, no question from this record, that the funds are in hand, the buildings are going up, and the facilities will be equal by next September.
Those are the four principal distinctive features.
Now, may it please the Court, in undertaking to make a very brief statement of the case, as to how the issues come here, there are several facts that I believe should be brought to your attention at the outset. This case arises in a comparatively small county of the hundred counties of Virginia, Prince Edward County. It has only about 15,000 population. It has one town of any size in it, the town of Farmville, where the old Hampden-Sydney College is located. The population is divided about 52 percent Negro and 48 percent white in the county. The school population is higher among the Negroes than that figure. There is about sixty percent of the school population that is Negro and forty percent white. So, roughly, you may regard the situation as being one where the ratio is about three to one, whites three to one.
Now, these appellants are high school students. This case relates entirely to high school students. The South Carolina case was elementary and high school. These cases vary. But this is strictly a high school.
We believe it to be particularly fortunate that the Court concluded to assume for argument all five of these cases together, because while in history each case stands on its own record, there is, of course, one main stream which runs through all of the cases, and it is obvious from the arguments already made by counsel for the appellants that that is the real question with which they are concerned, namely, to test finally, if possible, the issue as to whether the mere fact of segregation by law is a denial of equal protection.
Now, the Virginia case is one which is equally helpful, I believe not only in respect of its own setting, but in its bearing on these other cases.
I am going to undertake in the discussion of this case to deal with it in that sort of way, not merely from the standpoint of our case, but also in its bearing on the other.
There are several distinctive features of this Virginia case that I want to call to Your Honors' attention at the outset. The first is the nature of the record that you find here. You were impressed, I am sure, with the fact that you have a much larger record. We believe that was not unnecessarily made large. When we were requested to represent this little county of Prince Edward and also to be associated with the Attorney in the representation of the Commonwealth, we found that there had been these four or five cases in the federal court where the question of inequality of facilities had been the issue, and that was the only issue. Where the courts had found that to exist, they promptly made decrees requiring equalization.
We also found that the State had undertaken an amazing program of expenditures of money and expansion of the public school system, particularly over the last twenty years, with the view to making the facilities equal for Negroes and whites, so that perhaps with the exception of the State of South Carolina, Virginia stands probably at the top among all these southern states in that program, which I am going to refer to more fully a little later.
But we also found, in comparing and getting the benefit of the Kansas and the South Carolina case, which has just been heard, that these appellants had laid all this great stress on what they call the psychological issue. But we also found that there was quite a conflict of opinion among the experts on that matter.
So we undertook to prepare a full record, and Your Honors would find, when you browse through this record, that you have, instead of, as in the Kansas case, where all of these teachers and educators and psychologists testified on one side, and in the South Carolina case on the appellant's side—you find a great array of very distinguished persons who testified in the Virginia case in direct conflict on this crucial question of fact. So the first distinctive feature is the fuller record.
The second distinctive feature is the difference in the findings of the court. The court, in contrast to the Kansas case, based upon the historical background in Virginia and upon all this evidence, found on the crucial questions which these gentlemen had stressed so much that they failed to prove their case, even on that point. That is one of the main distinctive features in this case.
There also will be presented the difference as compared to—with the Kansas case, as to the great impact that would result in Virginia from a sudden elimination of segregation.
Now, those are among the issues. There is this other distinctive feature, which I should mention at the outset. This case on this point is similar to the South Carolina case in large degree, because when the case of South Carolina was tried, the facilities were not yet completed on the first trial, and were not completed on the second hearing. But when the case reaches this Court, they had been completed.
Now, Virginia is just a little bit behind South Carolina in that respect. But there is no doubt about it, no question from this record, that the funds are in hand, the buildings are going up, and the facilities will be equal by next September.
Those are the four principal distinctive features.
Now, may it please the Court, in undertaking to make a very brief statement of the case, as to how the issues come here, there are several facts that I believe should be brought to your attention at the outset. This case arises in a comparatively small county of the hundred counties of Virginia, Prince Edward County. It has only about 15,000 population. It has one town of any size in it, the town of Farmville, where the old Hampden-Sydney College is located. The population is divided about 52 percent Negro and 48 percent white in the county. The school population is higher among the Negroes than that figure. There is about sixty percent of the school population that is Negro and forty percent white. So, roughly, you may regard the situation as being one where the ratio is about three to one, whites three to one.
Now, these appellants are high school students. This case relates entirely to high school students. The South Carolina case was elementary and high school. These cases vary. But this is strictly a high school.
What did you say about the three to one?
I said that the ratio is about three whites to one Negro.
Where?
Throughout the State. I am sorry, I did not clear that up.
I thought you were referring to the county.
That is quite different.
That is quite different.
That is right. I am sorry.
Now, in the county, I should mention that this is a rather poor county financially, in the State. It has an assessed value of only about 9.5 million dollars. The total assessed property, on the ratio of assessment of about fifty percent—the total real and personal property value is about 18.5 million dollars.
Now, there are three high schools in the county, two for white and one for Negro. As might be expected, they are not identical. In the three high schools in 1951, there were 400 white children and 460 Negro children.
In standing, the Farmville High School was shown to be the best high school. That is, the white high school in Farmville. The next is the Moton School, the Negro school at Farmville; and the worst is the Worsham, which is a white school, a small combination high school and elementary school.
Now, one of the principal reasons why the Moton School, which, as Your Honors will realize, is named for the distinguished colored educator, who, by the way, was educated largely in Virginia, where there was segregation—one of the main reasons why Farmville is ranked first is because of the unequal growth in school population in the last ten years, particularly among the Negroes. The record shows that the Negro pupils increased in the last ten years 225 percent, but unfortunately whites have declined about 25 percent.
The school authorities, in view of that increase in Negro attendance, particularly in view of that, made a survey in 1947 as to school requirements, approval, and so on. And they finally have approved a program which the record shows will cost about 2.5 million dollars in all to carry out, with about two million of that being allocated for Negro schools, and about 500,000 dollars for white schools.
Now, among other things, one of the main things in the financing program was a new Negro high school in place of the existing Moton School. They were trying to arrange a bond issue for that, but unfortunately, in April and May, there was a two week strike called in the Negro school, which the Negro principal claimed that he could not control. The record indicates—and the matter was argued in the district court—that the strike was really inspired by outsiders. However that may be, the strike came at a very unfortunate time. It lasted two weeks. But that absolutely put an end to any bond issue.
The school authorities then undertook to raise the money for the new school from the State, and the State, which does have ample funds in Virginia, I am glad to say, through two sources, provided all the funds required. We have what is called a Battle Fund in Virginia, which is named after our present Governor, Governor Battle, and I am going to refer to that a little later after lunch. But it is a great source of money for these purposes, and about 250,000 dollars out of the 900,000 dollars required for the new Negro school was granted from that fund, and the remaining 600,000 dollars was made in the way of a loan from the Literary Fund at two percent.
Now, this suit was filed in May of last year, shortly after the strike, and as I said, it broke up the bond issue. But the State provided the funds, so that we are in the fortunate position of having the cash, the building is right under way, there is no question about the fact from the record and from the decree of the court that it is going to be completed.
Now, in the county, I should mention that this is a rather poor county financially, in the State. It has an assessed value of only about 9.5 million dollars. The total assessed property, on the ratio of assessment of about fifty percent—the total real and personal property value is about 18.5 million dollars.
Now, there are three high schools in the county, two for white and one for Negro. As might be expected, they are not identical. In the three high schools in 1951, there were 400 white children and 460 Negro children.
In standing, the Farmville High School was shown to be the best high school. That is, the white high school in Farmville. The next is the Moton School, the Negro school at Farmville; and the worst is the Worsham, which is a white school, a small combination high school and elementary school.
Now, one of the principal reasons why the Moton School, which, as Your Honors will realize, is named for the distinguished colored educator, who, by the way, was educated largely in Virginia, where there was segregation—one of the main reasons why Farmville is ranked first is because of the unequal growth in school population in the last ten years, particularly among the Negroes. The record shows that the Negro pupils increased in the last ten years 225 percent, but unfortunately whites have declined about 25 percent.
The school authorities, in view of that increase in Negro attendance, particularly in view of that, made a survey in 1947 as to school requirements, approval, and so on. And they finally have approved a program which the record shows will cost about 2.5 million dollars in all to carry out, with about two million of that being allocated for Negro schools, and about 500,000 dollars for white schools.
Now, among other things, one of the main things in the financing program was a new Negro high school in place of the existing Moton School. They were trying to arrange a bond issue for that, but unfortunately, in April and May, there was a two week strike called in the Negro school, which the Negro principal claimed that he could not control. The record indicates—and the matter was argued in the district court—that the strike was really inspired by outsiders. However that may be, the strike came at a very unfortunate time. It lasted two weeks. But that absolutely put an end to any bond issue.
The school authorities then undertook to raise the money for the new school from the State, and the State, which does have ample funds in Virginia, I am glad to say, through two sources, provided all the funds required. We have what is called a Battle Fund in Virginia, which is named after our present Governor, Governor Battle, and I am going to refer to that a little later after lunch. But it is a great source of money for these purposes, and about 250,000 dollars out of the 900,000 dollars required for the new Negro school was granted from that fund, and the remaining 600,000 dollars was made in the way of a loan from the Literary Fund at two percent.
Now, this suit was filed in May of last year, shortly after the strike, and as I said, it broke up the bond issue. But the State provided the funds, so that we are in the fortunate position of having the cash, the building is right under way, there is no question about the fact from the record and from the decree of the court that it is going to be completed.
Has that money been obtained, and firm commitments made?
Yes, sir, all that has gone in the record.
When?
The money was obtained finally in June of 1951. You see, they were on the program of the bond issue when the strike created such a public sentiment that it was felt that they could not carry that through.
What is the present situation in regard to the building program?
The building is under way.
What do you mean by "under way," Mr. Moore?
It is about twenty-five to thirty percent complete. A firm contract is made. The funds are available to be drawn on from the State, just as the funds are needed, and the record shows that there is no reason why the school should not be in operation, a better school than any school in the county or that whole area, by next September.
Now, the challenge which was presented in this trial, which required five days—the case was very fully heard—was on two grounds:
First, it was said that, on the basis of the federal precedent, the segregation in the schools at the high school level violated constitutional standards. On that issue, the court held:
We cannot say that Virginia's separation of white and colored children in the public schools is without substance in fact or reason. We have found no hurt or harm to either race.
I was astonished at the statement that my friend—I will defer that until we come back.
Now, the challenge which was presented in this trial, which required five days—the case was very fully heard—was on two grounds:
First, it was said that, on the basis of the federal precedent, the segregation in the schools at the high school level violated constitutional standards. On that issue, the court held:
We cannot say that Virginia's separation of white and colored children in the public schools is without substance in fact or reason. We have found no hurt or harm to either race.
I was astonished at the statement that my friend—I will defer that until we come back.
Whereupon, at two o'clock p.m., the Court recessed to reconvene at two-thirty o'clock p.m.
AFTERNOON SESSION
May it please the Court:
When the Court rose for its luncheon recess, I had just mentioned the first of two very important findings that we feel the trial court made here. The first was that, on the basis of the record made, they found that the separation scheme that had been in effect in Virginia through these eighty years—we cannot say that it was without foundation in fact or reason, and there was no hurt or harm to either race.
Now, there is another finding. These are set out at great length there in the record at pages 19 through 21, and the facts proved in our case presently demonstrate or potently demonstrate why nullification of the cited sections is not warranted.
In those pages of the opinion, Judge Bryan, sitting with Judge Dobie and Judge Hutcheson, had given a very much more adequate answer, may it please Your Honor, Justice Reed, than our friends on the other side did to your question as to what was the real basis and, therefore, I was about to comment when we adjourned for lunch that I was very astonished at the comment that had just been made that there was such a scanty record.
Judge Bryan, in the opinion, went back and traced the history of this scheme to the Acts of 1869 and 1870 in Virginia, with the various changes in those laws that were passed right during the Reconstruction period when, as everyone knows, there was this zeal involved in protecting the Negroes' rights, but stemming right from the first Act of 1869-1870, the law has been substantially the way it is today.
Instead of President Darden of the University—leaving the matter, as our friend on the other side suggested, if Your Honors would look at page 456 of the record, you will see a very much more illuminating comment, where he goes on to show quite a bit about this history.
Of course, this system did spring out of the system which was in effect in the South before the war, but because it sprang out of that system it does not follow that there was any intent to continue a form of slavery or form of servitude, such as here argued.
He goes ahead and points out there that actually in the consideration of the Underwood constitution there were 22 Negroes in the convention, and they were split eleven to eleven-eleven voting against the proposal to include a prohibition against segregation. That was obviously because of the friction that was involved arising out of that period.
Now, there is another set of facts here that I believe to be very pertinent. We observe that during the argument of our opponents, there was distributed among the Justices of the Court two very interesting sheets, which we were not able to obtain until a few days ago, from the Census, and you will see from those sheets that the problem as exists in these 17 states that have segregation and the District of Columbia is a very different problem from many of the other states.
You will observe on that first sheet entitled, "Relationship of White and Negro Population," that there is a factor of ten percent of the total population of the country today that is Negro, about 15 million; it is very interesting to see how that is distributed. In the 17 states and in the District of Columbia, the total population in those states that is Negro is 20.5 percent; in all these other states it is 4.6 percent. But there is a concentration of the Negro population in those 17 states and the District to the extent of approximately seventy percent. In the second sheet you will observe that there is a variation all the way from about one-tenth of one percent in Vermont to 45 percent in Mississippi, with about 22 percent in Virginia, Justice Black-that is where I was confused just a moment ago, as you will see right there. It is perfectly clear that that situation is a very pertinent thing in the consideration of this matter.
When the Court rose for its luncheon recess, I had just mentioned the first of two very important findings that we feel the trial court made here. The first was that, on the basis of the record made, they found that the separation scheme that had been in effect in Virginia through these eighty years—we cannot say that it was without foundation in fact or reason, and there was no hurt or harm to either race.
Now, there is another finding. These are set out at great length there in the record at pages 19 through 21, and the facts proved in our case presently demonstrate or potently demonstrate why nullification of the cited sections is not warranted.
In those pages of the opinion, Judge Bryan, sitting with Judge Dobie and Judge Hutcheson, had given a very much more adequate answer, may it please Your Honor, Justice Reed, than our friends on the other side did to your question as to what was the real basis and, therefore, I was about to comment when we adjourned for lunch that I was very astonished at the comment that had just been made that there was such a scanty record.
Judge Bryan, in the opinion, went back and traced the history of this scheme to the Acts of 1869 and 1870 in Virginia, with the various changes in those laws that were passed right during the Reconstruction period when, as everyone knows, there was this zeal involved in protecting the Negroes' rights, but stemming right from the first Act of 1869-1870, the law has been substantially the way it is today.
Instead of President Darden of the University—leaving the matter, as our friend on the other side suggested, if Your Honors would look at page 456 of the record, you will see a very much more illuminating comment, where he goes on to show quite a bit about this history.
Of course, this system did spring out of the system which was in effect in the South before the war, but because it sprang out of that system it does not follow that there was any intent to continue a form of slavery or form of servitude, such as here argued.
He goes ahead and points out there that actually in the consideration of the Underwood constitution there were 22 Negroes in the convention, and they were split eleven to eleven-eleven voting against the proposal to include a prohibition against segregation. That was obviously because of the friction that was involved arising out of that period.
Now, there is another set of facts here that I believe to be very pertinent. We observe that during the argument of our opponents, there was distributed among the Justices of the Court two very interesting sheets, which we were not able to obtain until a few days ago, from the Census, and you will see from those sheets that the problem as exists in these 17 states that have segregation and the District of Columbia is a very different problem from many of the other states.
You will observe on that first sheet entitled, "Relationship of White and Negro Population," that there is a factor of ten percent of the total population of the country today that is Negro, about 15 million; it is very interesting to see how that is distributed. In the 17 states and in the District of Columbia, the total population in those states that is Negro is 20.5 percent; in all these other states it is 4.6 percent. But there is a concentration of the Negro population in those 17 states and the District to the extent of approximately seventy percent. In the second sheet you will observe that there is a variation all the way from about one-tenth of one percent in Vermont to 45 percent in Mississippi, with about 22 percent in Virginia, Justice Black-that is where I was confused just a moment ago, as you will see right there. It is perfectly clear that that situation is a very pertinent thing in the consideration of this matter.
Have you carried it out into the counties?
We do not have it in the counties. As a matter of fact, we had much difficulty getting it from the Census people to this extent. We have got it for the county that is in question here. I gave that just before we adjourned for lunch. Sixty percent of the school population is Negro in this county to forty percent white and the total population is 52 percent Negro and 48 percent white.
May I just undertake in my remaining time to address myself very briefly to four questions which we believe are the controlling questions in this case:
First, while we know that Your Honors are so familiar with the precedents that are here talked about so much, we do not feel we could do justice to this case without referring to them, at least briefly; and I then want to refer briefly to what we call the Virginia situation as shown on these facts; and third, I want to mention briefly the expert evidence that became so important in this case; and fourthly, I wish to talk briefly about the point that Justice Frankfurter mentioned a moment ago as to what is the kind of decree or remedy that should be granted in a situation like this where, as distinguished from South Carolina, we have not quite got our facilities in shape, although they have been able to do that in South Carolina. I am going to take up those four matters in that order just as briefly as I can.
Mr. Davis stressed in his argument so far as background for the issue, the main issue in all these cases, the question as to whether separation by law is per se a violation of equal protection. He stressed the legislative history primarily.
There is an equally important area, we believe, involving the legal precedents. Of course, all these cases come down finally to the question as to whether this type of case falls over into the category of Gong Lum-really, that is the closest case; Plessy v. Ferguson is, of course, its forerunner-but do they fall under the doctrine of Gong Lum or do they fall under the Sweatt v. Painter and McLaurin; that is the real crucial question.
I am not going to labor the point. Judge Parker has worked it out better than any of these other courts have. He has done that better, more fully, but you have got not only these statutes that have been passed, but this large body of decisions which certainly over a period of eighty years has recognized that the thing that is existing here in the South, particularly, as you saw from those sheets, is a thing that has become a part of a way of life, as our court said in our case, in the South. It is plainly based on real reason, and if that is so, then there is no reason why the equal facilities, equal but separate facilities, doctrine should not apply.
What the court held in Sweatt v. Painter and in McLaurin was that on the facts, that at that level equality could not be provided.
Now, we took the trouble here to obtain-there are three very distinguished experts that testified in our case, right on that point, that there are great differences at the high school level on this question as to whether equality of not only facilities and curricula and all can be afforded as compared with the graduate and professional schools.
We did not have to rely simply upon what the Court might take notice of, but Your Honors will find the testimony of Doctor Lindley Stiles, who is the head of the Department of Education of the University of Virginia, a man with wide experience all over the country, teaching and supervising segregated schools and nonsegregated schools, who stressed that there was a difference in that level at adolescent age; you find Doctor Henry E. Garrett, head of the Department of Psychology of Columbia University, who testified at great length on this subject; and then Doctor Dabney L. Lancaster, the president of Longwood College in Virginia, stresses that situation.
Now, there the gist of their testimony was that equality of opportunity really could be provided and possibly better provided at the high school level with separate schools, provided you had equal facilities, just as good teachers, just as good curricula, and all the facilities that go along with it. On that basis there is no occasion to approach this matter from the standpoint of Sweatt v. Painter and McLaurin.
It is shown right here definitely—and that is what Judge Bryan's opinion rests on—it is shown by evidence that at this level you have not got the problem that exists at the graduate and professional school level.
These gentlemen on the other side at great length cite a long line of cases in this Court which they say are pertinent, and which we contend are not pertinent, and I just list them and state our position. They mention cases like these: The Jury Duty case, the Right to Vote case, the Right to the Fishing License, the Florida Shepherd case, the Right to Participate in Primary Elections, the Right to Own Property, Shelley v. Kraemer; and then they rely upon these commerce cases, Morgan v. Virginia, and the recent Chance case.
Those cases are not comparable here. There you had a complete denial of a right. The question of separation but with equal facilities and equal opportunities really did not exist in those cases; there was a denial, a complete denial.
What really happened, as we see it, in the appellants' theory is that we believe they are quite confused. They come here and they first make their attack in this way: They say that the doctrine, the separate but equal doctrine, just per se amounts to an offense to the Constitution, the Fourteenth Amendment. Now, that, of course, as was pointed out in the first case, the Kansas case yesterday, is just a direct attack on Plessy v. Ferguson and the Gong Lum doctrine.
But then they come along and make a second contention. They say that as long as there is separation, then, as a matter of fact, there cannot be equality, and the only basis they have for urging that is to draw on this so-called expert testimony of the psychologists, and they say that because of that line of testimony you can never attain equality as a fact.
Now, in the Virginia case we meet head-on on that issue. It may be, as some of the questions from Your Honors have indicated, that, perhaps, all of that testimony may be irrelevant. If we are right in our first proposition that Gong Lum is still the law, then, perhaps, all that testimony may be irrelevant. But we did not want to take any chances in the Virginia case. We knew that there was this great body of expert opinion which was in conflict with that which had been presented without conflict in Kansas and in South Carolina, and we presented it. So that if, as a fact, that issue becomes important, we had met it head-on, and we have a finding of the court in our favor.
May I just refer very briefly to what, for short, I may call the Virginia scene in which this whole problem arises? Of course, it is obvious that it is not just Prince Edward County that is involved or Clarendon County, South Carolina. It is a statewide question, and this record abounds with information that shows that over the last twenty years there has been a tremendous movement, springing largely with the position that Doctor Lancaster, now the head of Longwood College at Farmville, Virginia, right where this controversy arose, while he was head of the Department of Education, he saw ahead that this problem was going to arise in the way in which it has, and the State, under his sponsorship, and his successors, put on this tremendous program which, perhaps except for North Carolina, is the greatest program in the South, of expending these huge sums for building up these facilities.
You have a situation today where the State of Virginia has every reason to be proud of what has been accomplished, although complete perfection has not yet been attained in every one of the counties and cities of the State.
Let me give you just a few figures. As Dr. Darden pointed out, public education somewhat dragged in Virginia until about 1920. At that time there were only 31,000 high school students in the State. Today there are 155,000.
During these last ten years the State, according to this record, has reached the point where the Negro salaries have been equalized with the whites throughout; there are actually more four-year college graduates among the Negro teachers in Virginia than there are white teachers.
The Negro expenditures in this State have increased 161 percent as compared with 123 percent.
According to a survey that was put in evidence in our case, it appeared that approximately one-half of the counties and cities in the State are now or within a very short time will be carrying out programs now in effect—will be on the basis of as good as or better than the whites. As a matter of fact, in the City of Richmond, the finest high school in the city is a Negro high school, and at Charlottesville there has just been completed the finest high school for Negroes that there is in all that area.
Now, as an indication of what has been accomplished—I sound as if we are trying to brag in comparison with South Carolina, and we do not mean it that way, but we believe these figures are very pertinent, Your Honors. We are telling that to you because we have no other way of getting these facts to you except by telling them to you.
In Virginia we have put on this program that I referred to as the Battle Fund. It is sixty million dollars as compared with the seventy-five million dollars in South Carolina. Of that amount, ten million dollars have already been allocated for the Negroes, and 18 million dollars for the whites. They are getting much more than their share.
We have this tremendous Literary Fund, as it is called in Virginia. We are more fortunate in Virginia financially than many of the states, and through that fund loans are being made to these schools, with the Negroes greatly benefiting in proportion. Of the 48 million dollars that have been loaned out of—comparing the 48 million dollars loaned for whites, are 16.5 million dollars loaned for the Negroes at two percent interest, at a two percent interest rate.
May I just undertake in my remaining time to address myself very briefly to four questions which we believe are the controlling questions in this case:
First, while we know that Your Honors are so familiar with the precedents that are here talked about so much, we do not feel we could do justice to this case without referring to them, at least briefly; and I then want to refer briefly to what we call the Virginia situation as shown on these facts; and third, I want to mention briefly the expert evidence that became so important in this case; and fourthly, I wish to talk briefly about the point that Justice Frankfurter mentioned a moment ago as to what is the kind of decree or remedy that should be granted in a situation like this where, as distinguished from South Carolina, we have not quite got our facilities in shape, although they have been able to do that in South Carolina. I am going to take up those four matters in that order just as briefly as I can.
Mr. Davis stressed in his argument so far as background for the issue, the main issue in all these cases, the question as to whether separation by law is per se a violation of equal protection. He stressed the legislative history primarily.
There is an equally important area, we believe, involving the legal precedents. Of course, all these cases come down finally to the question as to whether this type of case falls over into the category of Gong Lum-really, that is the closest case; Plessy v. Ferguson is, of course, its forerunner-but do they fall under the doctrine of Gong Lum or do they fall under the Sweatt v. Painter and McLaurin; that is the real crucial question.
I am not going to labor the point. Judge Parker has worked it out better than any of these other courts have. He has done that better, more fully, but you have got not only these statutes that have been passed, but this large body of decisions which certainly over a period of eighty years has recognized that the thing that is existing here in the South, particularly, as you saw from those sheets, is a thing that has become a part of a way of life, as our court said in our case, in the South. It is plainly based on real reason, and if that is so, then there is no reason why the equal facilities, equal but separate facilities, doctrine should not apply.
What the court held in Sweatt v. Painter and in McLaurin was that on the facts, that at that level equality could not be provided.
Now, we took the trouble here to obtain-there are three very distinguished experts that testified in our case, right on that point, that there are great differences at the high school level on this question as to whether equality of not only facilities and curricula and all can be afforded as compared with the graduate and professional schools.
We did not have to rely simply upon what the Court might take notice of, but Your Honors will find the testimony of Doctor Lindley Stiles, who is the head of the Department of Education of the University of Virginia, a man with wide experience all over the country, teaching and supervising segregated schools and nonsegregated schools, who stressed that there was a difference in that level at adolescent age; you find Doctor Henry E. Garrett, head of the Department of Psychology of Columbia University, who testified at great length on this subject; and then Doctor Dabney L. Lancaster, the president of Longwood College in Virginia, stresses that situation.
Now, there the gist of their testimony was that equality of opportunity really could be provided and possibly better provided at the high school level with separate schools, provided you had equal facilities, just as good teachers, just as good curricula, and all the facilities that go along with it. On that basis there is no occasion to approach this matter from the standpoint of Sweatt v. Painter and McLaurin.
It is shown right here definitely—and that is what Judge Bryan's opinion rests on—it is shown by evidence that at this level you have not got the problem that exists at the graduate and professional school level.
These gentlemen on the other side at great length cite a long line of cases in this Court which they say are pertinent, and which we contend are not pertinent, and I just list them and state our position. They mention cases like these: The Jury Duty case, the Right to Vote case, the Right to the Fishing License, the Florida Shepherd case, the Right to Participate in Primary Elections, the Right to Own Property, Shelley v. Kraemer; and then they rely upon these commerce cases, Morgan v. Virginia, and the recent Chance case.
Those cases are not comparable here. There you had a complete denial of a right. The question of separation but with equal facilities and equal opportunities really did not exist in those cases; there was a denial, a complete denial.
What really happened, as we see it, in the appellants' theory is that we believe they are quite confused. They come here and they first make their attack in this way: They say that the doctrine, the separate but equal doctrine, just per se amounts to an offense to the Constitution, the Fourteenth Amendment. Now, that, of course, as was pointed out in the first case, the Kansas case yesterday, is just a direct attack on Plessy v. Ferguson and the Gong Lum doctrine.
But then they come along and make a second contention. They say that as long as there is separation, then, as a matter of fact, there cannot be equality, and the only basis they have for urging that is to draw on this so-called expert testimony of the psychologists, and they say that because of that line of testimony you can never attain equality as a fact.
Now, in the Virginia case we meet head-on on that issue. It may be, as some of the questions from Your Honors have indicated, that, perhaps, all of that testimony may be irrelevant. If we are right in our first proposition that Gong Lum is still the law, then, perhaps, all that testimony may be irrelevant. But we did not want to take any chances in the Virginia case. We knew that there was this great body of expert opinion which was in conflict with that which had been presented without conflict in Kansas and in South Carolina, and we presented it. So that if, as a fact, that issue becomes important, we had met it head-on, and we have a finding of the court in our favor.
May I just refer very briefly to what, for short, I may call the Virginia scene in which this whole problem arises? Of course, it is obvious that it is not just Prince Edward County that is involved or Clarendon County, South Carolina. It is a statewide question, and this record abounds with information that shows that over the last twenty years there has been a tremendous movement, springing largely with the position that Doctor Lancaster, now the head of Longwood College at Farmville, Virginia, right where this controversy arose, while he was head of the Department of Education, he saw ahead that this problem was going to arise in the way in which it has, and the State, under his sponsorship, and his successors, put on this tremendous program which, perhaps except for North Carolina, is the greatest program in the South, of expending these huge sums for building up these facilities.
You have a situation today where the State of Virginia has every reason to be proud of what has been accomplished, although complete perfection has not yet been attained in every one of the counties and cities of the State.
Let me give you just a few figures. As Dr. Darden pointed out, public education somewhat dragged in Virginia until about 1920. At that time there were only 31,000 high school students in the State. Today there are 155,000.
During these last ten years the State, according to this record, has reached the point where the Negro salaries have been equalized with the whites throughout; there are actually more four-year college graduates among the Negro teachers in Virginia than there are white teachers.
The Negro expenditures in this State have increased 161 percent as compared with 123 percent.
According to a survey that was put in evidence in our case, it appeared that approximately one-half of the counties and cities in the State are now or within a very short time will be carrying out programs now in effect—will be on the basis of as good as or better than the whites. As a matter of fact, in the City of Richmond, the finest high school in the city is a Negro high school, and at Charlottesville there has just been completed the finest high school for Negroes that there is in all that area.
Now, as an indication of what has been accomplished—I sound as if we are trying to brag in comparison with South Carolina, and we do not mean it that way, but we believe these figures are very pertinent, Your Honors. We are telling that to you because we have no other way of getting these facts to you except by telling them to you.
In Virginia we have put on this program that I referred to as the Battle Fund. It is sixty million dollars as compared with the seventy-five million dollars in South Carolina. Of that amount, ten million dollars have already been allocated for the Negroes, and 18 million dollars for the whites. They are getting much more than their share.
We have this tremendous Literary Fund, as it is called in Virginia. We are more fortunate in Virginia financially than many of the states, and through that fund loans are being made to these schools, with the Negroes greatly benefiting in proportion. Of the 48 million dollars that have been loaned out of—comparing the 48 million dollars loaned for whites, are 16.5 million dollars loaned for the Negroes at two percent interest, at a two percent interest rate.
Are those loans made to the boards of education?
That is right, sir, at two percent, and that was the 600,000 dollars in this 900,000 dollar program for this very high school. So you see the funds are really right there in hand. There is no trouble about going out with a sales tax like our friends have to do in South Carolina. We have got the money, and we have got a contract, and we have got a court decree which tells us that we have got to go ahead as quickly as possible.
Now, there is just one more fact in this connection, and I am through with this point. It is very striking that in the four-year plan that the board of education has adopted there are 168 projects for whites, with 73 projects for Negroes, involving for whites 189 million dollars, may it please Your Honors.
Just think of what that means in taxation and in burdens to the people of Virginia in carrying out this program, with 74.5 million dollars for Negroes. In other words, they are sharing in all this huge program in a ratio of about two to one, although their ratio in the State is only about 22 percent.
In view of all that, the court could not find that this program, so important to the welfare of the people of Virginia, rested on prejudice, but it presented a way of life, and it represented a firm determination on the part of the people of Virginia, because they were able to bear the burden better than many of the southern states—but they were fully committed in good faith to provide for the Negro child just as good education as a white child could get, and they were doing it and, therefore, the court found that they could not find that that program rested on prejudice.
Now, isn't that of some importance in this matter when this matter reaches the stage of this Court? The trial court said that they found that the program rested neither upon prejudice nor caprice, nor upon any nebulous foundation, but rather the proof is that it declares one of the ways of life in Virginia.
May I just very briefly refer to this expert testimony because, perhaps that, together with the difference in findings of the court, is the most distinctive thing about this case.
We are glad to get the benefit among our brethren involved in the other cases, if that be appropriate, with their testimony. We were able to profit by the trials in these other cases. They could have gotten the experts if they had deemed it essential or relevant to do it. They, proceeding in their own way, considered, in the light of the decisions of this Court and the numerous decisions of the state courts, that all that line of expert testimony presumably was irrelevant.
Now, the statement is made here that time after time there is consensus of opinion among social scientists that segregation is bad. I was interested in the appendix which is signed by some 32 alleged social scientists who say that appendix is out on the frontiers of scientific knowledge; that is the way they describe it. When you examine that appendix you find that five of the persons who signed that appendix were cross-examined in our case, and the appendix is really just an effort—I say this without any lack of respect—but it is just an effort to try to rehabilitate those gentlemen and add to it with some other persons.
Now, it is our view that, when you consider the expert evidence on the two sides in this case, it is perfectly clear that the trial court was justified in finding as they did.
Let me just briefly give you a description as to the kind of expert testimony that was presented in the Virginia case. Some of these witnesses apparently travel around over the country quite a bit testifying in these cases.
There were four principal experts for the plaintiffs in our case: A man named Doctor John J. Brooks, who runs an experimental school in New York where about 300 students attend, and he tries to get a cross-section of the population, a certain number of whites, a certain number of Negroes, and a certain number of others. He has had practically—he had no experience in Virginia. He had a little experience in Georgia. He testified, in effect, that he felt that segregation was bad.
The next was Doctor Brewster Smith, who was a professor of psychology at Vassar. His chief contribution was that he considered that as a matter of principle segregation in the abstract was an official insult. That is about what his testimony finally boiled down to.
One of the most interesting witnesses was Doctor Isidor Chein. He has written a great deal on this subject, and he testified as to a questionnaire that he had sent out to some 850 social scientists, he said, asking them two main questions: First, as to whether or not in their view segregation was harmful to those segregated; secondly, was it harmful to those who did not segregate; and he said that the replies he got were some 500, and that some ninety percent of the people who answered said that it was bad on both groups.
We showed on cross-examination and otherwise that there were some six or eight thousand persons who were eligible to have that questionnaire sent to them; we showed that only 32 came from south of the Mason and Dixon Line; and he was unable to show a single one from Virginia; and what you wind up with is that you get a statement in the air as sort of a moral principle—it is kind of a religious statement that you get—that, in principle or in theory, in the abstract, that segregation is a bad thing to have.
Now, there is just one more fact in this connection, and I am through with this point. It is very striking that in the four-year plan that the board of education has adopted there are 168 projects for whites, with 73 projects for Negroes, involving for whites 189 million dollars, may it please Your Honors.
Just think of what that means in taxation and in burdens to the people of Virginia in carrying out this program, with 74.5 million dollars for Negroes. In other words, they are sharing in all this huge program in a ratio of about two to one, although their ratio in the State is only about 22 percent.
In view of all that, the court could not find that this program, so important to the welfare of the people of Virginia, rested on prejudice, but it presented a way of life, and it represented a firm determination on the part of the people of Virginia, because they were able to bear the burden better than many of the southern states—but they were fully committed in good faith to provide for the Negro child just as good education as a white child could get, and they were doing it and, therefore, the court found that they could not find that that program rested on prejudice.
Now, isn't that of some importance in this matter when this matter reaches the stage of this Court? The trial court said that they found that the program rested neither upon prejudice nor caprice, nor upon any nebulous foundation, but rather the proof is that it declares one of the ways of life in Virginia.
May I just very briefly refer to this expert testimony because, perhaps that, together with the difference in findings of the court, is the most distinctive thing about this case.
We are glad to get the benefit among our brethren involved in the other cases, if that be appropriate, with their testimony. We were able to profit by the trials in these other cases. They could have gotten the experts if they had deemed it essential or relevant to do it. They, proceeding in their own way, considered, in the light of the decisions of this Court and the numerous decisions of the state courts, that all that line of expert testimony presumably was irrelevant.
Now, the statement is made here that time after time there is consensus of opinion among social scientists that segregation is bad. I was interested in the appendix which is signed by some 32 alleged social scientists who say that appendix is out on the frontiers of scientific knowledge; that is the way they describe it. When you examine that appendix you find that five of the persons who signed that appendix were cross-examined in our case, and the appendix is really just an effort—I say this without any lack of respect—but it is just an effort to try to rehabilitate those gentlemen and add to it with some other persons.
Now, it is our view that, when you consider the expert evidence on the two sides in this case, it is perfectly clear that the trial court was justified in finding as they did.
Let me just briefly give you a description as to the kind of expert testimony that was presented in the Virginia case. Some of these witnesses apparently travel around over the country quite a bit testifying in these cases.
There were four principal experts for the plaintiffs in our case: A man named Doctor John J. Brooks, who runs an experimental school in New York where about 300 students attend, and he tries to get a cross-section of the population, a certain number of whites, a certain number of Negroes, and a certain number of others. He has had practically—he had no experience in Virginia. He had a little experience in Georgia. He testified, in effect, that he felt that segregation was bad.
The next was Doctor Brewster Smith, who was a professor of psychology at Vassar. His chief contribution was that he considered that as a matter of principle segregation in the abstract was an official insult. That is about what his testimony finally boiled down to.
One of the most interesting witnesses was Doctor Isidor Chein. He has written a great deal on this subject, and he testified as to a questionnaire that he had sent out to some 850 social scientists, he said, asking them two main questions: First, as to whether or not in their view segregation was harmful to those segregated; secondly, was it harmful to those who did not segregate; and he said that the replies he got were some 500, and that some ninety percent of the people who answered said that it was bad on both groups.
We showed on cross-examination and otherwise that there were some six or eight thousand persons who were eligible to have that questionnaire sent to them; we showed that only 32 came from south of the Mason and Dixon Line; and he was unable to show a single one from Virginia; and what you wind up with is that you get a statement in the air as sort of a moral principle—it is kind of a religious statement that you get—that, in principle or in theory, in the abstract, that segregation is a bad thing to have.
Mr. Moore, of what would the six or eight thousand people be specialists in or of?
Well, there is a great line—
Who are these specialists in that field?
Well, they described them as sociologists, anthropologists, psychologists, and variations of those groups, principally, Your Honor.
Everybody in the sociological field is an expert in his domain?
That is right, Your Honor.
We say it does not mean a thing except as a matter of stating something in the abstract. You might as well be talking about the Sermon on the Mount or something like that, that it would be better—
We say it does not mean a thing except as a matter of stating something in the abstract. You might as well be talking about the Sermon on the Mount or something like that, that it would be better—
It is supposed to be a good document.
Well, I say you might as well be asking people whether it is desirable for everybody to try to live according to the Sermon on the Mount as to ask them the kind of questions that they had put to them.
Now, let us look for a moment at the experts we called. We had eight people who testified, who were especially familiar with conditions in Virginia and in the South.
We started at the lower level with the superintendent of education, Mr. J. I. McIlwaine, who had been the superintendent for over thirty years in that very area.
We then moved up to the next level. We took the present superintendent of education of the State, Doctor Dowell J. Howard; we took the ex-superintendent, Doctor Lancaster.
Then we moved up to the university level. We took Doctor Stiles, who has had this broad knowledge and experience all over the country, as the head of the Department of Education; and then took Doctor Darden, and took them; and then we followed through with three other kinds of experts. We called a leading child psychiatrist, Doctor William H. Kelly, a leading man in all our area, who testified and who had wide experience all over the country; as a matter of fact, in the war among the soldiers and what-not, he had such experience.
We then called a clinical psychologist, Mr. John N. Buck, who had had wide experience, and then—our friends like to chide us with the fact that our star witness was Doctor Garrett—they would have given their right eye to have gotten Doctor Garrett. He happened to be the teacher in Columbia of two of their experts, this very Doctor Clark who made these doll tests, and who studied under Doctor Garrett.
Dr. Garrett, it so happened, was born and raised very near this very place where this controversy arose in Virginia. He was educated in the Richmond public schools and at the University of Richmond, and then he went on to Columbia and finished his graduate work; and for years has been a leading professor of psychology, years the head of the department of psychology, with some 25 professors and assistant professors under him, with wide experience as an adviser to the War Department in connection with the psychological tests among soldiers during the war.
I have not time—my time is going by so fast, I see it is almost gone—and I must read you one or two things about what Doctor Garrett said about this thing. He said this. He said:
What I have said was that in the State of Virginia, in the year 1952, given equal facilities, that I thought, at the high school level, the Negro child and the white child—who seem to be forgotten most of the time—could get better education at the high school level in separate schools, given those two qualifications; equal facilities and the state of mind in Virginia at the present time.
If a Negro child goes to a school as well equipped as that of his white neighbor, if he had teachers of his own race and friends of his own race, it seems to me he is much less likely to develop tensions, animosities, and hostilities, than if you put him into a mixed school where, in Virginia, inevitably he will be a minority group.
Then he says again:
It seems to me that in the State of Virginia today, taking into account the temper of its people, its mores, and its customs and background, that the Negro student at the high school level will get a better education in a separate school than he will in mixed schools.
It is a better education he is talking about because of this friction that would arise and these eighty years of history in Virginia. Is all that to be ignored? Is that not, Your Honor, Justice Frankfurter, a basis for classification with eighty years in this background, just as in the pilot case you mentioned yesterday—I was not familiar with it yesterday until you mentioned it, but I read it this morning; but it is very important, the historical background in the light of this testimony.
Now, let us look for a moment at the experts we called. We had eight people who testified, who were especially familiar with conditions in Virginia and in the South.
We started at the lower level with the superintendent of education, Mr. J. I. McIlwaine, who had been the superintendent for over thirty years in that very area.
We then moved up to the next level. We took the present superintendent of education of the State, Doctor Dowell J. Howard; we took the ex-superintendent, Doctor Lancaster.
Then we moved up to the university level. We took Doctor Stiles, who has had this broad knowledge and experience all over the country, as the head of the Department of Education; and then took Doctor Darden, and took them; and then we followed through with three other kinds of experts. We called a leading child psychiatrist, Doctor William H. Kelly, a leading man in all our area, who testified and who had wide experience all over the country; as a matter of fact, in the war among the soldiers and what-not, he had such experience.
We then called a clinical psychologist, Mr. John N. Buck, who had had wide experience, and then—our friends like to chide us with the fact that our star witness was Doctor Garrett—they would have given their right eye to have gotten Doctor Garrett. He happened to be the teacher in Columbia of two of their experts, this very Doctor Clark who made these doll tests, and who studied under Doctor Garrett.
Dr. Garrett, it so happened, was born and raised very near this very place where this controversy arose in Virginia. He was educated in the Richmond public schools and at the University of Richmond, and then he went on to Columbia and finished his graduate work; and for years has been a leading professor of psychology, years the head of the department of psychology, with some 25 professors and assistant professors under him, with wide experience as an adviser to the War Department in connection with the psychological tests among soldiers during the war.
I have not time—my time is going by so fast, I see it is almost gone—and I must read you one or two things about what Doctor Garrett said about this thing. He said this. He said:
What I have said was that in the State of Virginia, in the year 1952, given equal facilities, that I thought, at the high school level, the Negro child and the white child—who seem to be forgotten most of the time—could get better education at the high school level in separate schools, given those two qualifications; equal facilities and the state of mind in Virginia at the present time.
If a Negro child goes to a school as well equipped as that of his white neighbor, if he had teachers of his own race and friends of his own race, it seems to me he is much less likely to develop tensions, animosities, and hostilities, than if you put him into a mixed school where, in Virginia, inevitably he will be a minority group.
Then he says again:
It seems to me that in the State of Virginia today, taking into account the temper of its people, its mores, and its customs and background, that the Negro student at the high school level will get a better education in a separate school than he will in mixed schools.
It is a better education he is talking about because of this friction that would arise and these eighty years of history in Virginia. Is all that to be ignored? Is that not, Your Honor, Justice Frankfurter, a basis for classification with eighty years in this background, just as in the pilot case you mentioned yesterday—I was not familiar with it yesterday until you mentioned it, but I read it this morning; but it is very important, the historical background in the light of this testimony.
What am I to draw from this argument that you are making now?
I think you are to draw—evidently I have not been successful, as successful as I had hoped.
Perhaps I should express my question a little more fully.
Yes.
What if they had decided to the contrary?
You mean the trial court?
The trial court; and your experts had not been so persuasive as they were, and there were other experts, and the trial court had accepted their conclusion that this was detrimental and was injurious to the ability of the Negro child to learn or of the white child to learn, and created great difficulties; what difference does it make which way they decided this particular question?
I think you can argue the matter two ways, Your Honor. I think, in the first place, you can argue that the difference, for instance, in the Kansas finding and the Virginia finding point up how important is the legislative policy that is involved, that Mr. Davis talked about so much this morning. It just illustrates how it really is a policy question.
I can understand that. But is it your argument that there are two sides to it?
It illustrates there are two sides to it, and it points up that the real crux of the whole matter is that there is involved fundamentally a policy question for legislative bodies to pass on, and not for the courts. Now, in the second place, it emphasizes, I hope, that the historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made.
There has been a legislative determination in Virginia?
That is right, sir.
That the greatest good for the greatest number is found in segregation?
That is right; with these lawmakers continuously since 1870 doing their job to do their best in the general welfare. It is significant that the Virginia statutes since 1870 have contained straight through a requirement that there should not only be a separation, but there should be treatment with equality and with efficiency all the way through; that is the policy.
My time is almost up.
My time is almost up.
Suppose Congress should enact a statute, pursuant to the enabling clause of the Fourteenth Amendment, which nobody seems to attach any importance to here, as far as I have heard, that segregation was contrary to national policy, to the national welfare, and so on; what would happen?
Your Honor, we thought of that in here, and that is a big question, as you realize.
That is why I asked it.
Our view of the matter is that it should not be held valid in this Court; that the only effective way to accomplish that is to be done through an Act of Congress, which would be by amending the Constitution.
You think that the Fourteenth Amendment would not be adequate to do that?
We do not believe so, and I have not the time and I have no desire to engage in this very interesting discussion that Justice Burton and Justice Frankfurter engaged in, as to whether there is any difference through the passage of time and through progress which has been made between the commerce clause and the Fourteenth Amendment.
But I would suggest in that connection that it certainly is much more easy to find facts that demonstrate that as progress has gone on, such as in Morgan v. Virginia, where the separation of races on the interstate buses is involved, it is much easier to find facts which will show, as time has gone on, that there should be a different application than there is where a question of equal protection is involved. We believe, as Mr. Davis pointed out this morning, I think touching this same point, although very slightly, that the Fourteenth Amendment here should be viewed in the light of what was really intended, and what was understood by Congress and by the legislatures at that time.
But I would suggest in that connection that it certainly is much more easy to find facts that demonstrate that as progress has gone on, such as in Morgan v. Virginia, where the separation of races on the interstate buses is involved, it is much easier to find facts which will show, as time has gone on, that there should be a different application than there is where a question of equal protection is involved. We believe, as Mr. Davis pointed out this morning, I think touching this same point, although very slightly, that the Fourteenth Amendment here should be viewed in the light of what was really intended, and what was understood by Congress and by the legislatures at that time.
But Justice Jackson's question brings into play different questions and different considerations, Mr. Moore, because the enabling act of the Fourteenth Amendment is itself a provision of the Fourteenth Amendment; patently Congress looked forward to implementing legislation; implementing legislation patently looked forward to the future; and if Congress passed a statute doing that which is asked of us to be done through judicial decree, the case would come here with a pronouncement by Congress in its legislative capacity that in its view of its powers this was within the Fourteenth Amendment and, therefore, it would come with all the heavy authority, with the momentum and validity that a congressional enactment has.
That may be so, Your Honor, but that is another case.
That is a good answer.
Yes, it is another case.
I wonder if it is. I should suppose that your argument that this was a legislative question might have been addressed to the proposition that the enforcement of the Fourteenth Amendment, if this were deemed conflicting, might be for the Congress rather than for this Court. I would rather expect and I had rather expected to hear that question discussed. But you apparently are in the position that no federal agency can supersede the state's authority in this matter, which, I say, you have good precedents for arguing.
Your Honor will appreciate that you have asked a question that to try to answer adequately requires a lot more time than I have got.
I understood you to say that that is a different case—
That is right.
—meaning that you do not have an Act of Congress.
That is right, sir. Now, of course, in the District—
What I am trying to get at is, do you attach any importance to the fact that there is not any Act of Congress? Apparently you do not, because there could not be one.
I am very glad there is not; yes, sir, I am very pleased with that anyway.
May I just take one more minute or two? I wanted to take a couple of minutes on that last question that Justice Frankfurter asked, because it is a very important point in our case, and I would like to take a moment.
The question is posed as to whether or not we are in a different position in Virginia rather than that in the South Carolina case because our building is not yet finished. I do not think so. In line with the doctrine that Your Honor, Justice Frankfurter, saw this Court declare in Eccles v. Peoples Bank, there certainly must be some leeway here in a court of equity and in a declaratory judgment proceeding. Our friend on the other side, Mr. Marshall, said yesterday he realized there must be a transition period. We are operating under a court decree which says, "Do that thing right now."
May I just take one more minute or two? I wanted to take a couple of minutes on that last question that Justice Frankfurter asked, because it is a very important point in our case, and I would like to take a moment.
The question is posed as to whether or not we are in a different position in Virginia rather than that in the South Carolina case because our building is not yet finished. I do not think so. In line with the doctrine that Your Honor, Justice Frankfurter, saw this Court declare in Eccles v. Peoples Bank, there certainly must be some leeway here in a court of equity and in a declaratory judgment proceeding. Our friend on the other side, Mr. Marshall, said yesterday he realized there must be a transition period. We are operating under a court decree which says, "Do that thing right now."
He was talking then, was he not, about segregation, and if it should be held that segregation per se was invalid, then he would be willing to let some time pass. But as I have understood him here, he says it is of the present, and it should be here admitted presently.
Well, the short answer here really is that as a practical matter in the situation we are in with the building under construction, under the court decree, with our knowing it is going to be ready in September, all we could really do practically would be to close the schools down until June, and then come along with equality. Now, we do not believe that is in the interest of anybody.
I am sorry, I have encroached a little bit on Judge Almond's time. Judge Almond, the Attorney General, desires the remainder of the time.
I am sorry, I have encroached a little bit on Judge Almond's time. Judge Almond, the Attorney General, desires the remainder of the time.
ARGUMENT OF J. LINDSAY ALMOND, ESQ.,
ON BEHALF OF THE APPELLEES
ON BEHALF OF THE APPELLEES
May it please the Court:
Just a few minutes are available to our side in which I would like to discuss with the Court what we conceive to be the historical background of this question in Virginia.
The question posed yesterday, or the remark made by Mr. Justice Frankfurter, is whether or not in the minds of some it may represent man's inhumanity to man or whether or not Virginia and the other southern states made these provisions in its law, its statute, and its constitution, for the separation of the races in the field of education because she had the power to do it or, as answered by our worthy opponent, Mr. Robinson, this morning, that it was placed there to place disabilities upon the Negro.
Prior to 1865 there were no public free schools in Virginia supported by any government, state or local. In 1865 kind missionaries from New England came into Virginia and established schools on a separate basis for the Negro children of former slaves.
The people were impoverished, and the poor white people—and nearly all of them were poor because the land was ravaged as a result of that unfortunate conflict, and they had no place to send their children to school except to do the very best they could through private tutorship. So that arrangement lasted until 1870, when the public free school system of Virginia came into being by virtue of the enactment of the legislature of Virginia, found here in substantially the same language that it was put into the Constitution of Virginia in 1902.
Just a few minutes are available to our side in which I would like to discuss with the Court what we conceive to be the historical background of this question in Virginia.
The question posed yesterday, or the remark made by Mr. Justice Frankfurter, is whether or not in the minds of some it may represent man's inhumanity to man or whether or not Virginia and the other southern states made these provisions in its law, its statute, and its constitution, for the separation of the races in the field of education because she had the power to do it or, as answered by our worthy opponent, Mr. Robinson, this morning, that it was placed there to place disabilities upon the Negro.
Prior to 1865 there were no public free schools in Virginia supported by any government, state or local. In 1865 kind missionaries from New England came into Virginia and established schools on a separate basis for the Negro children of former slaves.
The people were impoverished, and the poor white people—and nearly all of them were poor because the land was ravaged as a result of that unfortunate conflict, and they had no place to send their children to school except to do the very best they could through private tutorship. So that arrangement lasted until 1870, when the public free school system of Virginia came into being by virtue of the enactment of the legislature of Virginia, found here in substantially the same language that it was put into the Constitution of Virginia in 1902.
In 1865, General, you say there were missionaries who came down from the North?
Yes, sir.
What funds did they have?
They were private funds.
Private funds; and private schools, I take it?
They were private schools.
For the Negro?
For the Negro children.
But when the State took over or decided after a terrific conflict as to whether or not it should go into the field of public education, because it was the custom and tradition of our people prior to that time that every family should educate its own children—they were opposed to the expending of public funds for the education of the children of our people.
But a distinguished Virginian, a Doctor William H. Ruffing, became the first superintendent of schools in Virginia, and he wrote that statute which we have before us today, providing that white and colored children shall not be taught in the same schools, but under the same general regulations as to usefulness and efficiency.
As has been pointed out here, in the Underwood Convention of 1870, when the Underwood Constitution was adopted that Convention was presided over by an individual distinctly hostile to the great majority of the white people in Virginia, and the question came before that Convention as to whether or not a provision would be written into the Constitution requiring that the schools be mixed and operated by the State and the localities jointly on a mixed basis.
An amendment was offered by an eminent Negro doctor from the city of Norfolk to bring that about and, to use an expression that is frequently used in my State today, I may say to the Court that the fur flew; but, as Mr. Moore has pointed out, there were 22 Negro members of the Convention, and on the vote eleven of them voted not to have mixed schools in Virginia.
The debates in that Convention reflect what has been said here today relative to the mixed schools which prevailed in the State of South Carolina for a period of twelve years, and that was discussed.
That was adopted in the light of the fact that they knew then that in 1862 the Congress of the United States provided for separate schools in the District of Columbia. That was adopted because they knew then, and discussed that when the Fourteenth Amendment was submitted to the people or proposed on June 16, 1867, and in the great debate raging in Congress relative to the adoption of the enabling Civil Rights Act, that Congress itself had established the policy of separation of schools, because of the feeling that had grown as an aftermath of that great struggle between the states, and because of the bitterness that ensued, unfortunately—it was determined in Virginia, not as a badge of inferiority, not to place the Negro man or the Negro child in the position where he could never rise to take his place in a free society, but the only way that we could have a free public school system was on a separate basis.
And then during the Reconstruction period, when impoverished as our public treasury and our peoples were, it became necessary to use tax funds for other purposes, and the public treasury and provisions for school purposes were raided to this extent, or diverted; and Dr. Ruffing made a big fight on that. But throughout the Reconstruction period, and not until 1920 did the people of Virginia awaken to the necessity of improvement of their public schools.
Sad to relate, I am ashamed to say, that during many of those years of the past we have been grossly neglectful of our responsibility in bringing about equal facilities for the Negro race in Virginia.
In 1920 there were only 31,000 children of high school age in Virginia going to school, and today there are something like 155,000 of them.
With that undertaking, our people have come to believe and to know and to feel as a moral proposition, if Your Honors please, that the only position we can take, the one that is morally defensible, is that they are entitled to equal facilities, and there has been launched this great program in Virginia, appropriating millions of dollars and, Mr. Moore has pointed out, at this time we are spending more for facilities for Negro children than we are for whites, and we should do it because we were laggards in the years past in doing what we should have done.
But when the State took over or decided after a terrific conflict as to whether or not it should go into the field of public education, because it was the custom and tradition of our people prior to that time that every family should educate its own children—they were opposed to the expending of public funds for the education of the children of our people.
But a distinguished Virginian, a Doctor William H. Ruffing, became the first superintendent of schools in Virginia, and he wrote that statute which we have before us today, providing that white and colored children shall not be taught in the same schools, but under the same general regulations as to usefulness and efficiency.
As has been pointed out here, in the Underwood Convention of 1870, when the Underwood Constitution was adopted that Convention was presided over by an individual distinctly hostile to the great majority of the white people in Virginia, and the question came before that Convention as to whether or not a provision would be written into the Constitution requiring that the schools be mixed and operated by the State and the localities jointly on a mixed basis.
An amendment was offered by an eminent Negro doctor from the city of Norfolk to bring that about and, to use an expression that is frequently used in my State today, I may say to the Court that the fur flew; but, as Mr. Moore has pointed out, there were 22 Negro members of the Convention, and on the vote eleven of them voted not to have mixed schools in Virginia.
The debates in that Convention reflect what has been said here today relative to the mixed schools which prevailed in the State of South Carolina for a period of twelve years, and that was discussed.
That was adopted in the light of the fact that they knew then that in 1862 the Congress of the United States provided for separate schools in the District of Columbia. That was adopted because they knew then, and discussed that when the Fourteenth Amendment was submitted to the people or proposed on June 16, 1867, and in the great debate raging in Congress relative to the adoption of the enabling Civil Rights Act, that Congress itself had established the policy of separation of schools, because of the feeling that had grown as an aftermath of that great struggle between the states, and because of the bitterness that ensued, unfortunately—it was determined in Virginia, not as a badge of inferiority, not to place the Negro man or the Negro child in the position where he could never rise to take his place in a free society, but the only way that we could have a free public school system was on a separate basis.
And then during the Reconstruction period, when impoverished as our public treasury and our peoples were, it became necessary to use tax funds for other purposes, and the public treasury and provisions for school purposes were raided to this extent, or diverted; and Dr. Ruffing made a big fight on that. But throughout the Reconstruction period, and not until 1920 did the people of Virginia awaken to the necessity of improvement of their public schools.
Sad to relate, I am ashamed to say, that during many of those years of the past we have been grossly neglectful of our responsibility in bringing about equal facilities for the Negro race in Virginia.
In 1920 there were only 31,000 children of high school age in Virginia going to school, and today there are something like 155,000 of them.
With that undertaking, our people have come to believe and to know and to feel as a moral proposition, if Your Honors please, that the only position we can take, the one that is morally defensible, is that they are entitled to equal facilities, and there has been launched this great program in Virginia, appropriating millions of dollars and, Mr. Moore has pointed out, at this time we are spending more for facilities for Negro children than we are for whites, and we should do it because we were laggards in the years past in doing what we should have done.
General, I understood Mr. Moore to say that it was a legal responsibility for Virginia to have the equal facilities in the statute itself.
In the statute itself there is a legal responsibility, and in the years past it has not been discharged as it should have been discharged.
What I said about it is, independently of his right, that we should do it; it is our policy and it is our determination; we are irrevocably dedicated and our people are enthusiastically in support of equal facilities for Negroes at the secondary level in Virginia. That is our program today, and that is the program that we want to go forward with, and that we are going forward with.
The Legislature of 1950, on the recommendation of the Governor, almost without a dissenting voice, appropriated fifty million dollars for school construction. The Legislature of 1952 appropriated another fifteen million dollars, making a total of sixty million dollars that have been appropriated in those two sessions of the Legislature of Virginia to be dedicated almost solely toward the improvement of facilities at the secondary level in Virginia.
What I said about it is, independently of his right, that we should do it; it is our policy and it is our determination; we are irrevocably dedicated and our people are enthusiastically in support of equal facilities for Negroes at the secondary level in Virginia. That is our program today, and that is the program that we want to go forward with, and that we are going forward with.
The Legislature of 1950, on the recommendation of the Governor, almost without a dissenting voice, appropriated fifty million dollars for school construction. The Legislature of 1952 appropriated another fifteen million dollars, making a total of sixty million dollars that have been appropriated in those two sessions of the Legislature of Virginia to be dedicated almost solely toward the improvement of facilities at the secondary level in Virginia.
Are those sixty million dollars what you call the Battle Fund?
That is right, Mr. Chief Justice.
What is the Literary Fund, for what purpose and in what amount? Is it temporary or permanent?
No, sir. Written into the Constitution of Virginia are provisions for what we call a Literary Fund, and there goes into that Fund the collections of all fines that are paid in Virginia; they go permanently into that Fund, and that is a revolving fund from which the school boards of the various localities may make application for moneys for school purposes, principally for school construction, and meet certain minimum requirements laid down by the State Board of Education; and then they issue their bonds which are held at two percent interest by the State Board of Education; and as the interest comes in and the funds are paid in, it revolves, and it self-perpetuates itself. Then it has been augmented from time to time by direct appropriations from the Legislature into that Literary Fund.
Today, as I cite from memory—and I think the record bears it out—there are loans either in actual operations or applications approved for in excess of 48 million dollars from the Literary Fund, which have been applied to the construction of white schools and something over twelve million dollars which have been applied to the construction of the Negro schools.
If I may have just another moment—
Today, as I cite from memory—and I think the record bears it out—there are loans either in actual operations or applications approved for in excess of 48 million dollars from the Literary Fund, which have been applied to the construction of white schools and something over twelve million dollars which have been applied to the construction of the Negro schools.
If I may have just another moment—
All right, General, you may have five additional minutes, and you may have five minutes for rebuttal.
Thank you, sir. I just want to say a word—
I do not want to penalize you by my questions.
I just want to say a word, if Your Honors please, relative to the impact of a decision that would strike down, contrary to the customs, the traditions and the mores of what we might claim to be a great people, established through generations. who themselves are fiercely and irrevocably dedicated to the preservation of the white and colored races.
We have had a struggle in Virginia, particularly from 1920 on, to educate our people, white and colored, to the necessity of promoting the cause of secondary education. We think we have had great leaders to develop in that field. One, Doctor Dabney Lancaster, now president of Longwood College, I think, made himself very unpopular because he advocated and fought tooth and nail for the equalization of salaries between white and Negro teachers.
That has been accomplished. The curricula have been accomplished; facilities are rapidly being accomplished; and our people deeply ingrained within them, feel that it is their custom, their use and their wont; and their traditions, if destroyed, as this record shows, will make it impossible to raise public funds through the process of taxation, either at the state or the local level, to support the public school system of Virginia, and it would destroy the public school system of Virginia as we know it today. That is not an idle threat.
Then, too, a thing that concerns us—
We have had a struggle in Virginia, particularly from 1920 on, to educate our people, white and colored, to the necessity of promoting the cause of secondary education. We think we have had great leaders to develop in that field. One, Doctor Dabney Lancaster, now president of Longwood College, I think, made himself very unpopular because he advocated and fought tooth and nail for the equalization of salaries between white and Negro teachers.
That has been accomplished. The curricula have been accomplished; facilities are rapidly being accomplished; and our people deeply ingrained within them, feel that it is their custom, their use and their wont; and their traditions, if destroyed, as this record shows, will make it impossible to raise public funds through the process of taxation, either at the state or the local level, to support the public school system of Virginia, and it would destroy the public school system of Virginia as we know it today. That is not an idle threat.
Then, too, a thing that concerns us—
General, in what way will it destroy it?
It would destroy it, Mr. Chief Justice, because we must have—it is a costly proposition—money with which to operate the public school system at both the state level and the local level, and the only source of income, of course, is the source of taxation at the state and local level, and bond issues at the local level; and the people would not vote bond issues through their resentment to it. I say that not as a threat.
Then, another thing, we have 5,243 Negro teachers in the public school system of Virginia on an average of splendid qualification. That 5,243 exceed the Negro teachers in all of the 31 states of the Union where there is not segregation by law. They would not, as a hard fact of realism—and not in a spirit of recrimination do I say this, but simply as hard stark reality—those Negro teachers would not be employed to teach white children in a tax-supported system in Virginia.
Now, I know they tell us, "Why didn't you raise that voice when the Negro was admitted to the University of Virginia?" I did not raise it. I advised the University of Virginia that they had no defense, and I sat down with distinguished counsel in this case and agreed to the stipulations and helped prepare the decree that was entered by the court, and there was no evidence taken on it.
But here there is distinction, if Your Honor please, with 22.7 percent of our population, the Negro population, with 59 percent of the school population of Prince Edward County Negro population;
Now, I know they tell us, "Why didn't you raise that voice when the Negro was admitted to the University of Virginia?" I did not raise it. I advised the University of Virginia that they had no defense, and I sat down with distinguished counsel in this case and agreed to the stipulations and helped prepare the decree that was entered by the court, and there was no evidence taken on it.
But here there is distinction, if Your Honor please, with 22.7 percent of our population, the Negro population, with 59 percent of the school population of Prince Edward County Negro population;
To make such a transition would undo what we have been doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep.
I thank you.
Mr. Robinson, you understand that you have five additional minutes.
REBUTTAL ARGUMENT OF
SPOTTSWOOD W. ROBINSON, III, ESQ.,
ON BEHALF OF THE APPELLANTS
ON BEHALF OF THE APPELLANTS
In addition to the time that was reserved to me, yes.
May it please the Court:
In addition to the evidence in the record to which I have referred the Court to answer a question put to me by Mr. Justice Reed upon the opening argument, I should also like to request the attention of the Court directly to our statement as to jurisdiction, pages nine to eleven, where we did undertake to incorporate some historical evidence which we thought would be of value on the question of the basis, the original basis, of the segregation legislation, data which are not contained in the record in the case.
Examination of this material will indicate that prior to the time of the Civil War, as a consequence of the Dred Scott decision, the Negro did not enjoy citizenship rights equal to those enjoyed by a white person. As a matter of fact, in that case the Court had decided that he possessed no rights which a white person was bound to respect at all.
And so it goes that after the Civil War, and even after the Negro was affirmatively granted full and equal citizenship by the Thirteenth and Fourteenth Amendments, and even though his right to suffrage was given protection by the provisions of the Fifteenth Amendment, the white South was not content with this constitutional change. Consequently, we had the so-called period of the "Black Codes," which were a body of laws which were expressly intended and indeed did accomplish the disability of the Negro.
Examination of the records of the constitutional conventions of the southern states during the period that legislative segregation of education had its beginning gives, as I stated this morning, a reliable indication that the real basis of this legislation was not what it has been stated to this Court it is, but rather that the segregation laws themselves were intended to, and have in fact in Virginia accomplished—a matter which I shall get to in just a few minutes—were intended to limit the educational opportunities of the Negro, and place him in a position where he could not obtain in the State's educational system opportunities and benefits from the public educational program equal to those which flowed to white students.
We have incorporated in our statement as to jurisdiction as one piece of evidence specifically referable to Virginia the report of the proceedings during the debates at the 1902 Constitutional Convention over one of the provisions which was then up for discussion, a resolution that state funds for schools must be used to maintain the primary schools for a certain period of time before these funds could be used for the establishment of high schools or indeed grades beyond the higher grades.
The question was then asked as to whether or not the effect of this provision would be to tend to prevent the establishment of schools in sections of the country where such schools ought to be prevented, and the eminent Mr. Carter Glass answered the question by pointing out that this provision had been considered, that there was a discussion of this demand, stating as he did—and these are his words:
Certainly, in my judgment, a very reasonable demand, that the white people of the black sections of Virginia should be permitted to tax themselves, and after a certain point has been passed which would safeguard the poorer classes in these communities, divert that fund to the exclusive use of the white children.
It was at the same Constitutional Convention that Senator Glass made the statement that discrimination was one of the purposes for which the convention was called—I am speaking about discrimination over in the area of suffrage—and it was at this very same convention that he said that one of the purposes of the convention was to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of legally without materially impairing the numerical strength of the white electorate. The so-called Virginia picture bears out this purpose.
I would like to ask the Court's attention—invite the Court's attention—to the data which we have incorporated in our reply brief commencing on page eleven, the data pertaining to the present and the future educational system in Virginia. Although Negroes constitute, or they did constitute in 1950-51, 26 percent of the total number of pupils enrolled in the schools of the Commonwealth, they did not receive, when measured on a dollars and cents basis, anything like their fair share of the educational funds, anything like their fair share of the school property employed by the Commonwealth in its educational program. We have set forth there data to demonstrate that for each dollar invested in each category per Negro student, the investment for the 1950-51 school session per Negro student was 61 cents in sites and buildings, 50 cents in furniture and equipment, 67 cents in buses, and 61 cents in total school property. That is the situation in Virginia. It was the situation in Virginia as we were able to present it up to the latest possible point at the time of the trial in this case.
May it please the Court:
In addition to the evidence in the record to which I have referred the Court to answer a question put to me by Mr. Justice Reed upon the opening argument, I should also like to request the attention of the Court directly to our statement as to jurisdiction, pages nine to eleven, where we did undertake to incorporate some historical evidence which we thought would be of value on the question of the basis, the original basis, of the segregation legislation, data which are not contained in the record in the case.
Examination of this material will indicate that prior to the time of the Civil War, as a consequence of the Dred Scott decision, the Negro did not enjoy citizenship rights equal to those enjoyed by a white person. As a matter of fact, in that case the Court had decided that he possessed no rights which a white person was bound to respect at all.
And so it goes that after the Civil War, and even after the Negro was affirmatively granted full and equal citizenship by the Thirteenth and Fourteenth Amendments, and even though his right to suffrage was given protection by the provisions of the Fifteenth Amendment, the white South was not content with this constitutional change. Consequently, we had the so-called period of the "Black Codes," which were a body of laws which were expressly intended and indeed did accomplish the disability of the Negro.
Examination of the records of the constitutional conventions of the southern states during the period that legislative segregation of education had its beginning gives, as I stated this morning, a reliable indication that the real basis of this legislation was not what it has been stated to this Court it is, but rather that the segregation laws themselves were intended to, and have in fact in Virginia accomplished—a matter which I shall get to in just a few minutes—were intended to limit the educational opportunities of the Negro, and place him in a position where he could not obtain in the State's educational system opportunities and benefits from the public educational program equal to those which flowed to white students.
We have incorporated in our statement as to jurisdiction as one piece of evidence specifically referable to Virginia the report of the proceedings during the debates at the 1902 Constitutional Convention over one of the provisions which was then up for discussion, a resolution that state funds for schools must be used to maintain the primary schools for a certain period of time before these funds could be used for the establishment of high schools or indeed grades beyond the higher grades.
The question was then asked as to whether or not the effect of this provision would be to tend to prevent the establishment of schools in sections of the country where such schools ought to be prevented, and the eminent Mr. Carter Glass answered the question by pointing out that this provision had been considered, that there was a discussion of this demand, stating as he did—and these are his words:
Certainly, in my judgment, a very reasonable demand, that the white people of the black sections of Virginia should be permitted to tax themselves, and after a certain point has been passed which would safeguard the poorer classes in these communities, divert that fund to the exclusive use of the white children.
It was at the same Constitutional Convention that Senator Glass made the statement that discrimination was one of the purposes for which the convention was called—I am speaking about discrimination over in the area of suffrage—and it was at this very same convention that he said that one of the purposes of the convention was to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of legally without materially impairing the numerical strength of the white electorate. The so-called Virginia picture bears out this purpose.
I would like to ask the Court's attention—invite the Court's attention—to the data which we have incorporated in our reply brief commencing on page eleven, the data pertaining to the present and the future educational system in Virginia. Although Negroes constitute, or they did constitute in 1950-51, 26 percent of the total number of pupils enrolled in the schools of the Commonwealth, they did not receive, when measured on a dollars and cents basis, anything like their fair share of the educational funds, anything like their fair share of the school property employed by the Commonwealth in its educational program. We have set forth there data to demonstrate that for each dollar invested in each category per Negro student, the investment for the 1950-51 school session per Negro student was 61 cents in sites and buildings, 50 cents in furniture and equipment, 67 cents in buses, and 61 cents in total school property. That is the situation in Virginia. It was the situation in Virginia as we were able to present it up to the latest possible point at the time of the trial in this case.
I hope you will take time enough before you finish to tell me what your position is about the provision of the Fourteenth Amendment, that Congress pass appropriate legislation to enforce it and what effect if any it has on these cases.
That are now before the Court, sir?
Yes, cases of this character.
I will be glad to do that, Mr. Justice Jackson, right now. I disagree with counsel for the appellees that Congress does not have full power under section 5 of the Fourteenth Amendment to enact legislation that would outlaw segregation in state public schools. But I do feel that insofar as the present cases are concerned that has relatively little merit.
We come before this Court presenting what we consider to be justiciable questions, questions that are not essentially different in character from those which have been presented in cases which in the past have been brought here. In other words, I do not feel that the mere fact that under the authority of section 5 of the Fourteenth Amendment Congress could enact legislation which would settle this problem would in any way encroach upon the jurisdiction of this Court if, as a matter of fact, a violation of the Constitution has been shown.
We come before this Court presenting what we consider to be justiciable questions, questions that are not essentially different in character from those which have been presented in cases which in the past have been brought here. In other words, I do not feel that the mere fact that under the authority of section 5 of the Fourteenth Amendment Congress could enact legislation which would settle this problem would in any way encroach upon the jurisdiction of this Court if, as a matter of fact, a violation of the Constitution has been shown.
Of course, in the jury cases you have legislation by Congress; in the interstate commerce cases you have legislation by Congress.
That is correct, sir.
In a good many of our cases, but not all, you are quite right, that some do have them. But in a number of cases they rest on specific statutory implementation of this Amendment.
Yes. I would like to make—
What statute of Congress regulates juries?
I think it is section 47 of Title 8 of the United States Code. I think it is; I have forgotten.
I pointed it out in a dissenting opinion some time ago, but Justice Douglas apparently did not read my dissent.
I do not remember the exact number, Mr. Justice Douglas, but it is up in Title 8, and, as I recall, it is somewhere in the forties; it is in the forties section.
I would like to make reference to this—
I would like to make reference to this—
Has the Court ever held that the Fourteenth Amendment is not executed unless Congress acts?
No, I do not think so.
There is a large area of law which has been developed by this Court in which the decision has rested upon the provisions of the due process and equal protection clauses, and, in a few instances, of the privileges and immunities clause where there was not any implementing legislation by Congress.
As I understand the theory, particularly as it came as a consequence of the Civil Rights Cases, that authority was there that Congress could exercise, if it desired to do so; but the position which we urge upon the Court is, the mere fact that if Congress has not done it, it will not preclude this Court from deciding constitutional questions. I can make reference, for example, to the situation which was recently presented to this Court in the so-called restrictive covenant cases, and in those cases we had a piece of legislation involved that was section 42 of Title 8 of the United States Code. This Court nevertheless held that a state court enforcement of those restrictions resulted in the denial of the equal protection of the laws, notwithstanding the fact in that situation we did have a case in which Congress, under its authority conferred by section 5 of the Fourteenth Amendment, might have outlawed the thing to start off with, so that the question might never have gotten to this Court.
There is a large area of law which has been developed by this Court in which the decision has rested upon the provisions of the due process and equal protection clauses, and, in a few instances, of the privileges and immunities clause where there was not any implementing legislation by Congress.
As I understand the theory, particularly as it came as a consequence of the Civil Rights Cases, that authority was there that Congress could exercise, if it desired to do so; but the position which we urge upon the Court is, the mere fact that if Congress has not done it, it will not preclude this Court from deciding constitutional questions. I can make reference, for example, to the situation which was recently presented to this Court in the so-called restrictive covenant cases, and in those cases we had a piece of legislation involved that was section 42 of Title 8 of the United States Code. This Court nevertheless held that a state court enforcement of those restrictions resulted in the denial of the equal protection of the laws, notwithstanding the fact in that situation we did have a case in which Congress, under its authority conferred by section 5 of the Fourteenth Amendment, might have outlawed the thing to start off with, so that the question might never have gotten to this Court.
But if segregation is not a denial of equal protection or due process, legislation by Congress could do nothing more except to express congressional views, and wouldn't that be decisive?
Yes, I am inclined to—
So you would be forced to decide whether or not segregation per se comes under that question.
Of course, that is our position here, sir.
The Fourteenth Amendment is not unlike, in some aspect, the commerce clause. There are many things that the states cannot do merely because the commerce clause exists. There are many things that a state can do until Congress steps in.
That is right, sir. Under those circumstances—
The state cannot violate the Fourteenth Amendment.
I beg pardon?
The state cannot violate the Fourteenth Amendment.
That is right, and I was just about to observe that it cannot violate the commerce clause either.
We would not be arguing for ten hours if it is clear that this is a violation of it. We do not argue for ten hours a question that is self-evident.
I understand, sir.
Now, going back to the so-called Virginia picture, reference was made and questions were asked concerning the Literary Fund allocations, the approximately sixty million dollars allocated by the state Literary Fund for school construction in the State. We have pointed out in our reply brief, and we have demonstrated statistically, that even with this large expenditure, when you add it to the present value of buildings and sites, the ratio of investment in school property will be increased from the present 61 cents to only 74 cents per Negro student.
I should like to also emphasize the fact that no time has been set for the completion of these projects and, consequently, we do not even know when the ratio is going to be realized; but even if all of the Negro projects which are proposed are completed, and even though no additional money whatsoever is invested in white schools, the amount of money invested in buildings and sites per Negro student over the entire State would be only 343.30 dollars as compared with 366.73 dollars that are already invested in school property per white student.
So, consequently, the Literary Fund program, the construction which is expected to develop out of the Literary Fund allocations would not seem to bring about this equality even of physical facilities within any point in the near future.
Reference was made in this case also to the so-called four-year program. That is a program that has been developed, and that contemplates the expenditure of some 263 million dollars for new construction and improvements. And it has been emphasized that 77.7 percent of this money will be spent on white projects, and 22.3 percent on Negro projects, and the emphasis is placed there by reason of the fact that the percentages of expenditures are slightly in excess of the percentages of school population.
The money for this program, as the record clearly shows, is not now available; and even if the money were available and the entire program were completed by 1956, the amount invested in sites and buildings would only be 79 cents per Negro student for each dollar per white student, and thus, I urge the Court, this is a very vast program. Virginia does not have the money for it now. Even though Virginia could spend 263 million dollars—an enormous sum by Virginia standards—all that we succeed in doing is moving from a present 61 cents to 79 cents per Negro student for each dollar that is invested in buildings and sites for white students.
Now, going back to the so-called Virginia picture, reference was made and questions were asked concerning the Literary Fund allocations, the approximately sixty million dollars allocated by the state Literary Fund for school construction in the State. We have pointed out in our reply brief, and we have demonstrated statistically, that even with this large expenditure, when you add it to the present value of buildings and sites, the ratio of investment in school property will be increased from the present 61 cents to only 74 cents per Negro student.
I should like to also emphasize the fact that no time has been set for the completion of these projects and, consequently, we do not even know when the ratio is going to be realized; but even if all of the Negro projects which are proposed are completed, and even though no additional money whatsoever is invested in white schools, the amount of money invested in buildings and sites per Negro student over the entire State would be only 343.30 dollars as compared with 366.73 dollars that are already invested in school property per white student.
So, consequently, the Literary Fund program, the construction which is expected to develop out of the Literary Fund allocations would not seem to bring about this equality even of physical facilities within any point in the near future.
Reference was made in this case also to the so-called four-year program. That is a program that has been developed, and that contemplates the expenditure of some 263 million dollars for new construction and improvements. And it has been emphasized that 77.7 percent of this money will be spent on white projects, and 22.3 percent on Negro projects, and the emphasis is placed there by reason of the fact that the percentages of expenditures are slightly in excess of the percentages of school population.
The money for this program, as the record clearly shows, is not now available; and even if the money were available and the entire program were completed by 1956, the amount invested in sites and buildings would only be 79 cents per Negro student for each dollar per white student, and thus, I urge the Court, this is a very vast program. Virginia does not have the money for it now. Even though Virginia could spend 263 million dollars—an enormous sum by Virginia standards—all that we succeed in doing is moving from a present 61 cents to 79 cents per Negro student for each dollar that is invested in buildings and sites for white students.
Have you got any breakdown as to the number of school buildings that have been constructed in the last, say, five years? I heard about the high school of Richmond and Charlottesville. I am fearful that this percentage business does not make it very clear to me because it is a question of the number of schools; it is a question of how the students are grouped, as to whether they are getting the fair "divvy," I might say.
Yes, Mr. Chief Justice.
Now, maybe I can help. On the Literary Fund allocations that I was talking about just a few minutes ago, the evidence at the time of the trial showed that there had been projects—no, it does not give the number of schools. It simply shows the scope of the program, that is, the number of cities and counties over which the construction would extend.
If Your Honor will indulge me just a moment, I will look at the exhibit. If we have it in the record at all, might I make this suggestion: There are a large number of exhibits in this case, and all of this statistical information is contained in those exhibits. Those exhibits are before the Court. If the information is available at all it will be found there.
We have in our reply brief a specific, pointed and detailed reference in each case where we get to one of these particular things. I do not recall that the precise information concerning which Your Honor has asked me does appear in the record.
Now, maybe I can help. On the Literary Fund allocations that I was talking about just a few minutes ago, the evidence at the time of the trial showed that there had been projects—no, it does not give the number of schools. It simply shows the scope of the program, that is, the number of cities and counties over which the construction would extend.
If Your Honor will indulge me just a moment, I will look at the exhibit. If we have it in the record at all, might I make this suggestion: There are a large number of exhibits in this case, and all of this statistical information is contained in those exhibits. Those exhibits are before the Court. If the information is available at all it will be found there.
We have in our reply brief a specific, pointed and detailed reference in each case where we get to one of these particular things. I do not recall that the precise information concerning which Your Honor has asked me does appear in the record.
It would seem to me that if it did appear it would either show a stepped-up program or maybe retrogression in respect of the—if you had the breakdown it would show something.
Well, the appellees do insist that this is, in other words, a stepped-up program.
Do I understand that you take the same position that Mr. Marshall would take if we were to hold that segregation per se was unconstitutional in regard to the time element?
On the matter of necessity of the administrative problem in these segregated—oh, yes.
Then why, if you take that position there—and I assume you take it as a matter of necessity—why do you not take that position here under the equal facilities doctrine?
If Your Honor please, I think that there is a difference between a postponement of a right and a delay which is incidental to affording the remedies that we asked for. I do not think that it would be possible, without encroaching upon the previous decisions of this Court, to take the position that, notwithstanding a present denial of the constitutional rights of the appellants, that notwithstanding that, they must wait until the State gets around to fixing the schools.
Of course, I take it that you recognize the distinction in the cases in regard to the number of students affected, and all that sort of thing. But if you agree that a reasonable period of time should be granted if we held segregation was unconstitutional, I just wonder why you take the position you do in regard to the equal facilities, unless you say that the stepped-up program is just not sufficient to meet the situation.
We do take the latter position, if Your Honor please, and we have set forth—and since my time is just about up, I can only now refer the Court to the data which we have set forth in our reply brief in that connection, in which we point out that this stepped-up program of this State is not going to produce even physical equality on a statewide basis at any time in the near future, and we tried to calculate that time as best we could from the available information.
Now, with respect to the other portion of Your Honor's question, our position on it is simply this: I appreciate the fact that even though there has been a violation of legal rights, in affording a remedy it may be necessary and it may be entirely necessary for there to be some delay incidental to the affording of that remedy. A case that I can think of is if a court should decree specific performance of a contract to tear down a house; the man has got to have a reasonable opportunity to get the house down. But I do not think in that particular case if the man is entitled to that decree—
Now, with respect to the other portion of Your Honor's question, our position on it is simply this: I appreciate the fact that even though there has been a violation of legal rights, in affording a remedy it may be necessary and it may be entirely necessary for there to be some delay incidental to the affording of that remedy. A case that I can think of is if a court should decree specific performance of a contract to tear down a house; the man has got to have a reasonable opportunity to get the house down. But I do not think in that particular case if the man is entitled to that decree—
A man might have to have a reasonable opportunity to get out of the house before it is torn down.
I agree with that, too.
In other words, we have the administrative practical problem arising from the affording of the remedy, and to that particular situation and to that particular extent, of course, we readily recognize some lapse of time. I am not in a position to suggest what it should be.
I think it is an administrative problem initially, at least, for the school authorities to work out. We appreciate that, but I do not see how we can, without encroaching upon the body of decisions of this Court which have established the rights involved in these cases as present and personal, as to how we can say that notwithstanding that, we may delay the right; in other words, that a person must be compelled before he can get satisfaction of his rights—he may be postponed at some time into the future before he can get what the Constitution entitled him to, and what his white counterparts are getting already.
In other words, we have the administrative practical problem arising from the affording of the remedy, and to that particular situation and to that particular extent, of course, we readily recognize some lapse of time. I am not in a position to suggest what it should be.
I think it is an administrative problem initially, at least, for the school authorities to work out. We appreciate that, but I do not see how we can, without encroaching upon the body of decisions of this Court which have established the rights involved in these cases as present and personal, as to how we can say that notwithstanding that, we may delay the right; in other words, that a person must be compelled before he can get satisfaction of his rights—he may be postponed at some time into the future before he can get what the Constitution entitled him to, and what his white counterparts are getting already.
Now, take the South Carolina case. Would you say that, assuming the equal facilities rule will still continue, would you say that the lapse of time in their construction program was not fully justified by the lower court?
Well, I would have to answer that question, if Your Honor please, this way: I do not personally feel, and I could not urge upon the Court, that suspension of the satisfaction of a constitutional right is ever justified. In other words, I would—
But you realize you are in equity; you realize that you have got the rights of other people involved in regard to dislocation?
I appreciate that.
And in the South Carolina case there was some delay, but we are told here that when the new buildings were constructed and occupied in September—I recall there was some effort, special effort, made to get the material to build the gymnasium—at one time they thought they would not get it, but they worked around and got it for the gymnasium.
Yes. As I understand the "separate but equal" rule, even under that, at that particular time, at the time of the first hearing when the facilities were—
All right, go ahead.
—unequal, the court should, instead of entering an equalization decree, should have removed the segregation. That is what this Court said in the Gaines case is the consequence of trying to maintain segregation where you do not have equal physical facilities.
Well, the Court did not—
The Court did not under those circumstances, and I say that at that particular point what the Court there was doing, the Court was not simply delaying the thing for purposes which would be incidental to giving to the plaintiffs the relief which under that doctrine they were then entitled to. The Court was delaying it until conditions could be remedied in such a way that under the "separate but equal" doctrine, if limited to that particular point, they would not be entitled to any relief at all.
Well now, what is your view in regard to the way it was handled by the lower court?
In the Virginia case?
No, in the South Carolina case, considering that they ruled segregation per se not unconstitutional?
Do you have objection to that method of handling it?
Do you have objection to that method of handling it?
Well, if the Court should rule—I want to make certain—
Well, they did rule. I say, so far as they are concerned, they did so rule.
Yes. I am just trying to understand Your Honor's question.
Would you say that under the circumstances in the South Carolina case, having ruled on the segregation question as they did, that immediately, eo instanti, they should have said, "entry into white schools," or, seeing the imminent construction, that they should continue as they did?
Not the latter if you please; the former, taking into consideration that "immediately" would not mean five minutes from now.
Well now, how many minutes, how many days? That is the point.
I would not be able—I have tried to make plain that I consider that that is an administrative problem, and that gets into things that, frankly, I do not think that I am able to answer.
What about the courts?
I do not think that courts are, either. In other words, my position in that particular regard is that they are entitled to the relief immediately which should be afforded them just as soon as expeditious administrative arrangements can be made to unsegregate the schools, as I understand the Gaines and the subsequent cases, the doctrine of those cases, requires.
For these reasons, we respectfully submit that the decree of the district court should be reversed.
For these reasons, we respectfully submit that the decree of the district court should be reversed.
Whereupon, argument in the above-entitled matter was concluded.
Spottswood Thomas Bolling et al. v. C. Melvin Sharpe et al.
Washington, D. C.
Wednesday, December 10, 1952
Wednesday, December 10, 1952
No. 413
Petitioners
SPOTTSWOOD THOMAS BOLLING, ET AL.
Respondents
C. MELVIN SHARPE, ET AL.
The above-entitled cause came on for oral argument at 3:30 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
GEORGE E. C. HAYES, ESQ., on behalf of the Petitioner.
JAMES M. NABRIT, JR., ESQ., on behalf of Petitioners.
JAMES M. NABRIT, JR., ESQ., on behalf of Petitioners.
PROCEEDINGS
No. 413, Bolling, et al., v. C. Melvin Sharpe, and others.
All right, Mr. Hayes.
All right, Mr. Hayes.
OPENING ARGUMENT OF
GEORGE E. C. HAYES, ESQ.,
ON BEHALF OF PETITIONERS
ON BEHALF OF PETITIONERS
May it please the Court:
This case is here on a petition for a writ of certiorari addressed to the United States Court of Appeals for the District of Columbia Circuit. The jurisdiction of this Court to review by writ of certiorari is conferred by Title 28, United States Code, section 1254(1) and section 2101(e).
This case was on appeal to the United States Court of Appeals for the District of Columbia, where no judgment had been rendered, and no order had been entered, and the matter came up under the rule, as I have stated.
This case came before the court on a complaint and on a motion to dismiss, and the facts are, therefore, not controverted. The minor petitioners, Negroes, fully qualified to attend a junior high school in the District of Columbia, accompanied by their parents, made application to the Sousa Junior High School for admission, and they were denied admission to the Sousa Junior High School solely on the ground of race or color. Thereafter, through their attorneys, to each echelon in the administrative setup of the schools of the District of Columbia, they made application for admission, and finally to the Board of Education; and in each of these areas they were denied admission solely because of their race or color.
Thereafter, and having exhausted their administrative remedies, a suit was filed asking for a declaratory judgment and for injunctive relief. A motion was filed to dismiss. That motion was granted, and an appeal was taken. Certiorari was granted in this case on November 10, 1952.
Your Honors have listened for a number of hours to discussions with respect to this matter of segregation. In the case of the District of Columbia, in our opinion it presents an entirely novel question, one which this Court has not been called upon to pass upon, and in which we specifically and solely present the question as to whether segregation is unconstitutional per se. There are no factual questions as to facilities; we raise no issue with respect to facilities. Our proposition is baldly as to whether or not the respondents have the power, the statutory or constitutional power, to deny to these pupils admission to the Sousa Junior High School.
This case is here on a petition for a writ of certiorari addressed to the United States Court of Appeals for the District of Columbia Circuit. The jurisdiction of this Court to review by writ of certiorari is conferred by Title 28, United States Code, section 1254(1) and section 2101(e).
This case was on appeal to the United States Court of Appeals for the District of Columbia, where no judgment had been rendered, and no order had been entered, and the matter came up under the rule, as I have stated.
This case came before the court on a complaint and on a motion to dismiss, and the facts are, therefore, not controverted. The minor petitioners, Negroes, fully qualified to attend a junior high school in the District of Columbia, accompanied by their parents, made application to the Sousa Junior High School for admission, and they were denied admission to the Sousa Junior High School solely on the ground of race or color. Thereafter, through their attorneys, to each echelon in the administrative setup of the schools of the District of Columbia, they made application for admission, and finally to the Board of Education; and in each of these areas they were denied admission solely because of their race or color.
Thereafter, and having exhausted their administrative remedies, a suit was filed asking for a declaratory judgment and for injunctive relief. A motion was filed to dismiss. That motion was granted, and an appeal was taken. Certiorari was granted in this case on November 10, 1952.
Your Honors have listened for a number of hours to discussions with respect to this matter of segregation. In the case of the District of Columbia, in our opinion it presents an entirely novel question, one which this Court has not been called upon to pass upon, and in which we specifically and solely present the question as to whether segregation is unconstitutional per se. There are no factual questions as to facilities; we raise no issue with respect to facilities. Our proposition is baldly as to whether or not the respondents have the power, the statutory or constitutional power, to deny to these pupils admission to the Sousa Junior High School.
Where is the statute that is relied upon?
If Your Honor please, the statutes that are relied upon are in our brief beginning at page 23.
I want to call Your Honors' attention to the fact, at the very outset, that these statutes, contrary to the statutes to which Your Honors have listened for the last two days, nowhere, in and of themselves, require segregation. It, to our mind, is a matter solely of interpretation of these statutes as to whether or not segregation is required. Our opponents take the position that these statutes do require it.
I want to call Your Honors' attention to the fact, at the very outset, that these statutes, contrary to the statutes to which Your Honors have listened for the last two days, nowhere, in and of themselves, require segregation. It, to our mind, is a matter solely of interpretation of these statutes as to whether or not segregation is required. Our opponents take the position that these statutes do require it.
Suppose we do not agree with your construction of the statute? Is that the end of the case?
No, Your Honor, that is not, because, if Your Honors were to determine that our construction of the statute was incorrect, and that by so much these statutes require segregation, we would then take the position that any such requirement is beyond the power of the Government to announce, and we would rely upon for that decisions of this Court as making that an impossibility.
So your argument is that as a matter of construction this is not mandatory, but just exercising discretion by the educational authorities?
That is right, sir.
And that in construing it, I suppose, that we should take into account that possibly a serious constitutional question is involved, even if on the face of it it does not yield to the construction that you argue; but you argue, in the third place, that if one cannot escape the constitutional question, then you assail it?
That is correct, sir; that is exactly our position, Mr. Justice Frankfurter.
Has this statute that you refer to consistently been interpreted by the Board of Education as requiring segregation?
Yes, sir, Mr. Justice Douglas, it has.
This is an old statute?
Yes, Mr. Justice Douglas; again, it has been in since 1864; originally there were the Acts of 1862, but the Acts here relied on go from 1864 forward.
Why do you say an "interpretation requiring segregation"?
When I say "interpreted as requiring," I mean by that, at any rate, they have required it.
That may be permissive.
From our point of view, yes. They take the position, as I understand it, that they are required. From our point of view, it could be purely permissive, and from our point of view they are, if anything at all, simply permissive, because they are in no sense—we take the position—mandatory.
Do you set forth the legislative history of this statute?
No, Your Honor, we do not set it forth in any—
Does it throw any light upon this?
I beg your pardon?
Does it throw any light upon this?
I am sorry.
Does it throw any light on this subject as to whether or not Congress intended there be segregation?
From our point of view it does not. We say that because it is our belief that Congress, by the statutes, has indicated that it did not intend it because had they so intended, certainly the legislature would have been competent to have spelled it out in a manner so entirely different from the statute that we face, because, as Your Honors well know, we have, for instance, the South Carolina statutes saying that these children shall never be educated together; we have the Virginia statute saying that they shall not be in the same schools. There is no language in any of these which say any such thing, and so we say that Congress has never said that.
In seeking appropriations, the estimates that are put in, are they for the different schools in the city?
Yes, Your Honor.
Does that show that the schools are for Negroes and schools for white?
It shows that, and we do not pretend that the legislature is not mindful of it.
And Congress throughout the period of years has been mindful of it?
Yes, Your Honor. We take the position that being mindful or being mandatory or being constitutional are entirely different propositions.
What provisions of the Constitution do you assert this violates?
It violates, we will say, a number of them. I shall outline to you the manner in which we think they do violate it.
Which?
It violates the due process clause of the Fifth Amendment; it violates, as we conceive it, the civil rights statutes; it is in violation of the public policy that this Government has just seen fit to announce in the Charter of the United Nations; all of them, we think, are violated by any attempts to deny to these people, the petitioners, admission into the Sousa Junior High School.
Mr. Hayes, may I ask one other question?
Yes, Mr. Justice Frankfurter.
Do I understand you to say that this legislation is not mandatory, but permissive?
If at all, it would be nothing but permissive.
Wouldn't you, in your point of view, be attacking the constitutionality of legislation even if Congress authorizes it?
No, Your Honor, because from our point of view we take the position—if I stated it was permissive, then I am in error—we take the position that this language is neither mandatory nor permissive.
You say this does not even authorize it?
That is right, sir.
And you say for how many years has the District been acting without authority?
We do not say "without authority"; we say that the fact that they acted with knowledge does not mean that the statute gives the authority.
If the statute does not give the authority, then it was ultra vires for the District to have been doing what they have been doing; is that right?
No, if Your Honor please, because our position is that when the District recognizes that a situation exists, and when they appropriate for the sake of the statement, to an existing situation, that that does not mean that they themselves are given the authority, nor does it mean that they are holding that it is mandatory; and this Court—
Still, somebody must have been doing something lawlessly for a good many years; is that it?
If Your Honor says "lawlessly," perhaps, I cannot go along with the idea of lawlessness; but it has been done without constitutional authority. I do say that.
Somebody has been asleep as to the illegality of what has been done?
No, I would not say "asleep as to the illegality." I say rather—
If I may say so, I am in deep sympathy with you in not trying to invalidate legislation if it can be dealt with otherwise. But I find a little difficulty in seeing how we can fail to reach the validity of this legislation unless you say that what has been done by the District authorities has been done, if not lawlessly, then without authority of law. How about that, would you accept that?
We would say, sir, if this Court were to determine that what has been done up to this time has been done validly, that then for the first time this Court has had the opportunity to say, "No, this is not the proper way." We say that this is the opportunity for this Court to say that any such attempt as this, based solely on the question of race or color, is not within the Constitution.
"Hereafter you have no lawful authority to do this, but we do not care about the past."
I would not want Your Honors' statement to indicate that we do not care about the past, but for the first time we have had the opportunity to pass upon it, and we frown upon it.
If Your Honor please, as I have indicated, these three propositions I have outlined are as follows: We take the position, of course, that the court was wrong in having denied the relief sought, and in having granted the motion to dismiss.
This Government—and this is the point which seems to us so fundamental—that in these other situations where the question of these states has been involved, and where the question of equal facilities has been involved, that is one thing. But in our case, this Government of ours is being asked to support a statute having as its basis nothing other than race or color, and we say that this Government cannot afford to do just that.
As I have said, the question of the right of this Government to legislate for the District of Columbia is without question because they expressly have been authorized to legislate for the District of Columbia. But this Court, with respect to that, acting for the District of Columbia, has said that they cannot do it and violate one's constitutional rights. You have said so in Capital Traction v. Hof, and you said in Callen v. Wilson that, as a matter of fact, the right to administer for the District of Columbia is restricted by the fact that you cannot violate the constitutional rights of persons in so doing.
This Court has seen fit to pass upon rights which come within the purview of the due process clause of the Fifth Amendment, and have explained and expressed what the word "liberty" means, and this Court has seen fit to indicate and incorporate in that word "liberty" things which we believe point out the way as to what should be done in this instance.
Governmental restrictions on the right to teach a foreign language, the right of a parent to send his child to a private school, the right for them to acquire knowledge, the right of parents and pupils to a reasonable choice with respect to teachers, curricula, and text books, the right of parents to secure for their children the type of education which they think best, and which is not harmful, have been held by this Court to be fundamental educational rights protected from arbitrary Government action by the due process clause of the Fifth Amendment. That language is found in Meyer v. Nebraska, Bartels v. Iowa, Pierce v. Society of Sisters.
If Your Honor please, as I have indicated, these three propositions I have outlined are as follows: We take the position, of course, that the court was wrong in having denied the relief sought, and in having granted the motion to dismiss.
This Government—and this is the point which seems to us so fundamental—that in these other situations where the question of these states has been involved, and where the question of equal facilities has been involved, that is one thing. But in our case, this Government of ours is being asked to support a statute having as its basis nothing other than race or color, and we say that this Government cannot afford to do just that.
As I have said, the question of the right of this Government to legislate for the District of Columbia is without question because they expressly have been authorized to legislate for the District of Columbia. But this Court, with respect to that, acting for the District of Columbia, has said that they cannot do it and violate one's constitutional rights. You have said so in Capital Traction v. Hof, and you said in Callen v. Wilson that, as a matter of fact, the right to administer for the District of Columbia is restricted by the fact that you cannot violate the constitutional rights of persons in so doing.
This Court has seen fit to pass upon rights which come within the purview of the due process clause of the Fifth Amendment, and have explained and expressed what the word "liberty" means, and this Court has seen fit to indicate and incorporate in that word "liberty" things which we believe point out the way as to what should be done in this instance.
Governmental restrictions on the right to teach a foreign language, the right of a parent to send his child to a private school, the right for them to acquire knowledge, the right of parents and pupils to a reasonable choice with respect to teachers, curricula, and text books, the right of parents to secure for their children the type of education which they think best, and which is not harmful, have been held by this Court to be fundamental educational rights protected from arbitrary Government action by the due process clause of the Fifth Amendment. That language is found in Meyer v. Nebraska, Bartels v. Iowa, Pierce v. Society of Sisters.
Were those cases decided under the Fifth Amendment?
They were decided under the Fourteenth Amendment, if Your Honor please, but under the due process clause of the Fourteenth Amendment, and this Court, however, in the case of Farrington v. Tokushige has seen fit to refer specifically to those three cases, indicating that the due process clause of the Fourteenth Amendment, as referred to in those cases, is incorporated and is taken over and assumed as being part of the Fifth Amendment.
As far as the Fifth Amendment cases are concerned, and so in the Takahashi case, this Court, it seems to us, has embraced these educational cases that might be referred to as coming within the Fourteenth Amendment, and has said that the Fifth Amendment applies in instances where due process of law is concerned and that, if Your Honor please, is the exact situation that we have here.
I would not pretend, because it would not be candid to pretend, that in those cases there was not something having to do with economic situations, with the question of ownership; that there was not a question of it being brought by owners and teachers rather than by parents, so that for the sake of the statement someone might say it is dicta.
But I call the Court's attention to the fact that what you said in the Farrington case so entirely, as we conceive it, gave the concept of what this Court has in mind with respect to this question of liberty under this due process clause, and that there was no need to inquire whether or not it was in any sense any other than what this Court was embracing as being its doctrine.
As far as the Fifth Amendment cases are concerned, and so in the Takahashi case, this Court, it seems to us, has embraced these educational cases that might be referred to as coming within the Fourteenth Amendment, and has said that the Fifth Amendment applies in instances where due process of law is concerned and that, if Your Honor please, is the exact situation that we have here.
I would not pretend, because it would not be candid to pretend, that in those cases there was not something having to do with economic situations, with the question of ownership; that there was not a question of it being brought by owners and teachers rather than by parents, so that for the sake of the statement someone might say it is dicta.
But I call the Court's attention to the fact that what you said in the Farrington case so entirely, as we conceive it, gave the concept of what this Court has in mind with respect to this question of liberty under this due process clause, and that there was no need to inquire whether or not it was in any sense any other than what this Court was embracing as being its doctrine.
Do you take the same position that the Virginia counsel did, that this legislation was intended to be inimical to the interests of Negroes?
That this legislation was—if Your Honor means by "inimical," the question of putting them in—simply segregating them?
As I understood previous counsel, they urged that Virginia had passed these laws in order to deprive Negroes of educational opportunities.
I think, if Your Honor please, that unquestionably the answer must be that legislation of this character was pointed solely at the Negro, and that it was done purely and for no other reason than because of the fact that it pretended to keep for him this place of secondary citizenship. I think it could have no other conceivable purpose. I have been concerned—
You do not think that it had any relation to these prior considerations?
I do not think it had the slightest relationship to that, if Your Honor please; I do not think anyone can pretend in this jurisdiction that it has any such purpose, because this question of the schools, if Your Honor please—this is the only governmentally constructed situation that has as its basis segregation in the District of Columbia, the only one, and to us it is entirely inconceivable and inconsistent that under those circumstances for any conceivable reason, that the argument can be had that it is necessary on account of any alleged difficulties that might arise.
This Court has seen fit to say that any legislation based on racism is immediately suspect. That is what this Court has said. In the Hirabayashi case this Court said that legislation of this character is suspect, and immediately that it is suspect we take the position that the burden then comes upon the Government to show as to why under those conditions any such thing should be allowed. We throw down that challenge to our friends on the other side, to indicate why this should be done if there be any purpose other than pure racism. If there be any answer other than it is purely on account of color, then we ask them to indicate to us what that situation is.
This Court has seen fit to say that any legislation based on racism is immediately suspect. That is what this Court has said. In the Hirabayashi case this Court said that legislation of this character is suspect, and immediately that it is suspect we take the position that the burden then comes upon the Government to show as to why under those conditions any such thing should be allowed. We throw down that challenge to our friends on the other side, to indicate why this should be done if there be any purpose other than pure racism. If there be any answer other than it is purely on account of color, then we ask them to indicate to us what that situation is.
Mr. Hayes, if it was solely due to racism, you mean that after the adoption of the Amendments—of course, they would not affect this particular area—that segregation continued solely for racism and, therefore, the Fourteenth Amendment should now declare that under such circumstances the resultant relationships were invalid as unconstitutional?
If Your Honor please, I say again—and this is said on something that I hope is not based on obsession because of the fact that I am a Negro—I say to you that I believe that any of the facts—the Fourteenth Amendment, which had in it the question of the equal protection clause—the equal protection clause, as I conceive it, was put into the Fourteenth Amendment not because of the fact that there was any attempt at segregation at that time, but it was the question of getting segregation for Negroes, not of administering it. It was a question of getting it, and I think that the Fourteenth Amendment, when it provided for citizenship, mindful of the situation, and saying that they should have full citizenship, I think that they could not consistently have had that in mind and passed that and, at the same time, had in mind the question of that, we shall segregate in schools.
The point, to me, coming so close to the end of the War Between the States, so far as the District of Columbia is concerned—
Yes, sir.
—were the people who were there in the Congress at the time the Amendments were passed, and were there when ratified, and were there when this legislation was passed, and it is hard for me to understand that if it is racism, that it was not done deliberately, and the constitutional Amendments were so interpreted, and I assume that you would not go that far, would you, in regard to the war Amendments?
Mr. Chief Justice, I think that what was done was a matter of politics, was a matter of doing the thing which, at that time, was to them the opportune thing to do; it was the question of giving away this with the idea of pressing this which was the stronger thing. It was the idea of putting through this act and giving up this, because of the fact that this was the expedient thing to do; and I think that that very situation was what occasioned them not writing into any of these acts anything specific with regard to it, because in the same vein in which Your Honor indicates that this was an allowable circumstance, if they had intended that it should be a matter of segregation they could have written into this this, that Your Honor has indicated.
I was just merely asking your view relative to the frame of mind in which the people who passed the Amendments had in this situation in the District of Columbia to have separate schools at the time when the Amendments—the Fourteenth Amendment was being ratified by the states—if they did this for the purpose of just punishing the Negro or was it their interpretation of what the Fourteenth Amendment meant?
I have attempted to indicate to Your Honor that in my opinion it was not given as punishment; it was given as an expedient. It was done as an expedient. It was done because, as a matter of fact, at that time it seemed for them, I presume, an expedient thing not to press for this particular thing, but rather to allow the amendment to go through. And, as I say, I think it is for that reason expressly that they put nothing into it other than what they did.
May I make just this one additional suggestion, because my time has already gone, and my associate, Mr. Nabrit, is going to argue the other points; but I do want to say in these Japanese war cases, where the Court took the position, as I said, that any segregated attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express thing based upon race alone was suspect, they took the position that the only justification for the denial of constitutional rights can be found where there is pressing public necessity such as the severity of war, and even there the Court must be satisfied in sustaining such restrictions that: one, the purpose of the restriction is within the competency of the Government to effect—we say that this is not within the competency of the Government to effect; two, the restriction must be clearly authorized, and we call attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express powers, has no such indication as to such clear authorization and that they must, restrictions must have a reasonable relation to a proper purpose.
May I make just this one additional suggestion, because my time has already gone, and my associate, Mr. Nabrit, is going to argue the other points; but I do want to say in these Japanese war cases, where the Court took the position, as I said, that any segregated attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express thing based upon race alone was suspect, they took the position that the only justification for the denial of constitutional rights can be found where there is pressing public necessity such as the severity of war, and even there the Court must be satisfied in sustaining such restrictions that: one, the purpose of the restriction is within the competency of the Government to effect—we say that this is not within the competency of the Government to effect; two, the restriction must be clearly authorized, and we call attention to the fact that this Government of the United States, with express powers and implied powers only to carry those express powers, has no such indication as to such clear authorization and that they must, restrictions must have a reasonable relation to a proper purpose.
Mr. Hayes, before you sit down I would like to put to you a question because of the candor with which I know you will answer it. I do not suppose that anybody could deny that this legislation, all these enactments, concern drawing a line, drawing a color line. I suppose that is what this is all about. As to motives, the devil himself, as some one wise man said some time ago, "knoweth not the mind of man."
But I must want to ask you whether it is your position that the Fourteenth Amendment or the Fifth, for your purposes, automatically invalidates all legislation which draws a line determined because of race? I do not want to have trouble tomorrow or the day after tomorrow, but one has to look ahead these days. I wonder whether you would say, right off from your analysis of the Constitution, that marriage laws relating to race are ipso facto, on the face of things, unconstitutional?
But I must want to ask you whether it is your position that the Fourteenth Amendment or the Fifth, for your purposes, automatically invalidates all legislation which draws a line determined because of race? I do not want to have trouble tomorrow or the day after tomorrow, but one has to look ahead these days. I wonder whether you would say, right off from your analysis of the Constitution, that marriage laws relating to race are ipso facto, on the face of things, unconstitutional?
I would say to Your Honor, in answer to the first question as to whether or not in my opinion—
Because I need hardly tell you there is a good deal of legislation in this country drawing the line in connection with it.
Oh, yes, I am aware of that, sir. But I think that the problem is an entirely different one. With respect to the first part of your query as to whether or not I think automatically it becomes—
I mean that that denial to the states and to the Congress of the United States and to the District is written in by plain implication of the Fourteenth and the Fifth Amendment; that is what I want to know.
I want to say my answer to that is, if Your Honor please: I think that the very purpose of this Court is the very answer to that question. I think that this Court is called upon with that question now properly posed to make the answer.
You mean as to schools?
Yes, sir; that is what your first question, I thought, was addressed to.
Yes.
I answered that by saying as to schools this Court is called upon to say that this sort of thing cannot happen because it is a violation of the due process clause of the Fifth Amendment, and the due process clause of the Fifth Amendment does not lend itself to any substantial proposition. You can have substantial equality but you cannot have substantial liberty.
Is that because no legislation which draws any line with reference to race is automatically outlawed by the Fifth and the Fourteenth Amendment? So that takes you over—I am violating my own rule against posing hypothetical cases and, particularly, one that is as full of implications as the laws relating to the marriage laws involved, but I think one has to test these things to see what is the principle which you are invoking before this Court. Is it all-embracing, is it the all-embracing principle, that no legislation which is based on differentiation of race is valid?
I am invoking rather the principle which I think this Court invoked in the Hirabayashi case when this Court said that legislation based upon race is immediately suspect; that is what I am invoking.
Well, that is a very candid and logical answer. That simply means that it can be valid. It is not an absolute prohibition; that good cause must be shown, or great cause must be shown for the rule.
That is right, sir; and it is for that reason that I move to the next position of public necessity that was pointed out in those cases, and of the fact that even with the public necessity you must meet the three requirements.
Why do you have to equate the Fourteenth Amendment and the Fifth Amendment provisions on that score?
I am not attempting to equate them, if Your Honor please. I am attempting rather to say that as far as the Fifth Amendment is concerned there is no possibility of equating. You cannot make a quantum with respect to one's liberty.
You have just referred to the fact that we said that under the Fifth Amendment such laws are suspect, which means that we look at them very carefully to see if they can discriminate on account of race, or distinguish on account of race. Do you think the same rule applies with reference to the Fourteenth Amendment, which was passed under entirely different circumstances and for entirely different purposes?
Yes. I think the Fourteenth Amendment has within it inherent those possibilities. They have inherent within it the due process clause as well as the equal protection clause.
But you have got to stand on the due process clause?
Yes, I am standing on due process.
I take it that was what Justice Black had in mind, and which was behind Justice Black's question.
If that be the answer, that is what I was attempting to say. I was not attempting to equate them. We are relying on due process.
Your closest case in point so far as decisions go is Farrington?
Yes, Your Honor; and in fact, the Farrington case embraced the Meyer, Bartels, and the Pierce case. And that brings them into this.
ARGUMENT OF JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF THE PETITIONERS
ON BEHALF OF THE PETITIONERS
If the Court please:
It would appear necessary that petitioners make clear the position which they take in the midst of these five cases. It is our position, simply stated, that the respondents, the public school board officials in the District of Columbia, do not possess either the constitutional power or the statutory power to deny these minor petitioners admission to Sousa Junior High School solely because of race or color. Now, that, as we take it, is the sole question to be considered by this Court.
In considering that question, we would urge upon the Court that it consider whether these respondents possess that power under the due process clause, whether they possess it because these Acts of Congress compel it or authorize it, either, whether they possess it in the face of sections 41 and 43 of Title 8 of the United States Code, known as the Civil Rights Act of 1866, or whether they possess it in light of the pledge which this Government has given towards the implementation of human freedoms and rights without any distinction on the basis of race or color; in other words, not as a requirement of the charge but as a policy which is enunciated by the charge.
Now, it would appear to petitioners that it is necessary also for this Court to consider the fact that we are not dealing with the State of South Carolina, we are not dealing with the State of Virginia, the State of Delaware, or the State of Kansas. We are not here concerned with those oversensitive areas of state and federal relation. That is not involved in this case. We are not involved in this case with the question of the sensitiveness of states with the projection of federal power.
We are concerned here solely with the question of the relationship of the Federal Government to its citizens. It might be assumed as the basis for our approach to this problem that we go back and look at something of the history of our Constitution. We know that when the Constitution was adopted, there were provisions in there which made it possible for us to have an institution of slavery. We also know that the juristic concepts were such, in Dred Scott v. Sandford, that it was decided that a Negro could not be a citizen.
But along came the Thirteenth, Fourteenth and Fifteenth Amendments. The Thirteenth Amendment removed slavery as a condition, as a status. The Fourteenth, so far as the federal citizens are concerned, gave citizenship to those born or naturalized in the United States. Now, those things together would appear to us to have removed from the Federal Government any power to impose racial distinctions in dealing with its citizens.
Now, we know that this is a government of limited powers, and we know that it has express powers, and one of these is to deal with the District of Columbia.
It would appear necessary that petitioners make clear the position which they take in the midst of these five cases. It is our position, simply stated, that the respondents, the public school board officials in the District of Columbia, do not possess either the constitutional power or the statutory power to deny these minor petitioners admission to Sousa Junior High School solely because of race or color. Now, that, as we take it, is the sole question to be considered by this Court.
In considering that question, we would urge upon the Court that it consider whether these respondents possess that power under the due process clause, whether they possess it because these Acts of Congress compel it or authorize it, either, whether they possess it in the face of sections 41 and 43 of Title 8 of the United States Code, known as the Civil Rights Act of 1866, or whether they possess it in light of the pledge which this Government has given towards the implementation of human freedoms and rights without any distinction on the basis of race or color; in other words, not as a requirement of the charge but as a policy which is enunciated by the charge.
Now, it would appear to petitioners that it is necessary also for this Court to consider the fact that we are not dealing with the State of South Carolina, we are not dealing with the State of Virginia, the State of Delaware, or the State of Kansas. We are not here concerned with those oversensitive areas of state and federal relation. That is not involved in this case. We are not involved in this case with the question of the sensitiveness of states with the projection of federal power.
We are concerned here solely with the question of the relationship of the Federal Government to its citizens. It might be assumed as the basis for our approach to this problem that we go back and look at something of the history of our Constitution. We know that when the Constitution was adopted, there were provisions in there which made it possible for us to have an institution of slavery. We also know that the juristic concepts were such, in Dred Scott v. Sandford, that it was decided that a Negro could not be a citizen.
But along came the Thirteenth, Fourteenth and Fifteenth Amendments. The Thirteenth Amendment removed slavery as a condition, as a status. The Fourteenth, so far as the federal citizens are concerned, gave citizenship to those born or naturalized in the United States. Now, those things together would appear to us to have removed from the Federal Government any power to impose racial distinctions in dealing with its citizens.
Now, we know that this is a government of limited powers, and we know that it has express powers, and one of these is to deal with the District of Columbia.
Is it your thought that the adoption of the Fourteenth Amendment's due process clause changed the meaning of the Fifth Amendment's due process clause?
No, Mr. Justice. I thought, with the abolition of slavery and the federal citizenship conferred in the first section of the Fourteenth Amendment, that those two things robbed any dubious power which the Federal Government may have had prior to that time to deal with people solely on the basis of race or color.
Do you think that there is any doubt that they had complete power before that?
No, not in the light of Dred Scott v. Sandford, I do not doubt it, because in the light of Dred Scott v. Sandford, they simply said that no matter whether you went to Missouri or where you went, you are a Negro and you cannot be a citizen, and as soon as you cannot be a citizen, you cannot come within the purview of these things about which we are talking.
We are talking about the District.
That is right.
We are talking about the District.
Yes, I am saying the District, because if you could not be a federal citizen—and that is what Dred Scott held—it was for jurisdictional purposes, but everybody in the country took it as a finding of a lack of status as far as Negroes were concerned in 1856.
You could not be a citizen merely by going to Missouri.
Yes, I agree with you, Mr. Justice Frankfurter, if you say that the Court went further than it should have or had to. But I would say this, that after the citizenship that was conferred under the first clause of the Fourteenth Amendment, and after the abolition of slavery, that we would seriously question, as this Court questioned, the power of the Federal Government to deal with a federal citizen solely on the basis of his race. The only two cases that I can recall in the history of this Court where it is held that that could be done were in two cases where the Court said that there was an express power to wage war, that that was one of the all-embracing powers, and that as an implied power necessary to prevent sabotage and espionage, this Court said, under those circumstances, that a citizen of the United States might, one, be detained in his home overnight; and the other, be removed to a relocation center and there detained.
So this Court itself, even when it recognized the all-inclusiveness of the war power, when the security of the nation was at stake —this court has said, "We must test this detention, first, to see if it is authorized' and see if the statute authorizes it." If it is a case like Ex parte Endo, or it is not authorized, it is not good. Even if it is authorized, there must be a relationship between the purpose and the statute, and when we find that, as the Court said, we are not satisfied. There must also be some purpose which it is within the competency of this Government to effect.
So this Court itself, even when it recognized the all-inclusiveness of the war power, when the security of the nation was at stake —this court has said, "We must test this detention, first, to see if it is authorized' and see if the statute authorizes it." If it is a case like Ex parte Endo, or it is not authorized, it is not good. Even if it is authorized, there must be a relationship between the purpose and the statute, and when we find that, as the Court said, we are not satisfied. There must also be some purpose which it is within the competency of this Government to effect.
Who is to determine that?
This Court.
And Congress cannot determine it for itself?
No, sir. Never in the history of this country have the individual liberties of the citizen been entrusted in the hands of the legislators. The very founders of the Government refused to agree to the Constitution itself until they could be satisfied, Jefferson and others, that they had a Bill of Rights, so as to protect individual liberties.
That would mean that we would examine the basis, the foundation, of congressional enactments relating to race, such as the Japanese cases?
It is my position—
Who is going to make that determination as to whether it is necessary or proper or desirable? This Court?
I would say this, that this Court, faced with a piece of legislation by Congress which did that, or an act under a piece of legislation which did that, would in my opinion test it by the same type of test that it used in Korematsu and in Hirabayashi and in Endo. This Court tested it by that same method and found that it had no such authority and released Mitsye Endo. In other words, we ask nothing different than that we be given the same type of protection in peace that these Japanese were given in time of war. We are not asking anything different.
We are simply saying that liberty to us is just as precious, and that the same way in which the Court measures out liberty to others, it measures to us; and Congress itself has nothing to do with it, except that in the exercise of a power which Congress has, if Congress determines that it has something that it must do as an implied necessity in order to carry out that power, and then we say it does not and we bring the question to this Court, this Court would decide it.
I cannot make the statement that there is no situation in which Congress might not use race. I do not know of one right now, except the war powers. But that certainly leaves it open for determination by this Court. But at the same time, I assert that there is absolutely no basis that can be produced that would be accepted in our country in 1952 that would justify Congress making it such a racial basis for the exclusion of a student from a high school in the District of Columbia.
We are simply saying that liberty to us is just as precious, and that the same way in which the Court measures out liberty to others, it measures to us; and Congress itself has nothing to do with it, except that in the exercise of a power which Congress has, if Congress determines that it has something that it must do as an implied necessity in order to carry out that power, and then we say it does not and we bring the question to this Court, this Court would decide it.
I cannot make the statement that there is no situation in which Congress might not use race. I do not know of one right now, except the war powers. But that certainly leaves it open for determination by this Court. But at the same time, I assert that there is absolutely no basis that can be produced that would be accepted in our country in 1952 that would justify Congress making it such a racial basis for the exclusion of a student from a high school in the District of Columbia.
Would that same test apply on it for Congress under the commerce clause?
Under the commerce clause?
I just happened to choose that.
I was trying to think of one under the commerce clause.
Or any of the other clauses?
Or any of the other clauses, where the only purpose was the purpose of making a racial distinction, in affording it. For instance, if they say that no Negro can ride the trains, the answer is yes; it would apply precisely.
Could we examine the reasonableness of that decision?
Because you have said already, Mr. Justice Reed, or this Court, that as soon as we see that, we suspect it. It is not to say that it is unconstitutional, but it is to say that it is suspect, and you have said in so many cases, race is invidious; race is irrelevant. So when we get over in the Federal Government where there is nobody to deal with, but just us, the Federal Government, we do not have to worry. We know it is irrelevant, invidious, odious, and suspect. So this Court should examine it.
Whereupon, at 4:30 o'clock p.m., argument in the above-entitled matter was recessed, to reconvene at 12:10 o'clock p.m., December 11, 1952.
Spottswood Thomas Bolling et al. v. C. Melvin Sharpe et al.
Washington, D. C.
Thursday, December 11, 1952
Thursday, December 11, 1952
No. 413
Petitioners
SPOTTSWOOD THOMAS BOLLING, ET AL.
Respondents
C. MELVIN SHARPE, ET AL.
Oral argument in the above-entitled matter was resumed, pursuant to recess, at 12:10 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
JAMES M. NABRIT, JR., ESQ., on behalf of Petitioners—Resumed.
MILTON D. KORMAN, ESQ., on behalf of Respondents.
MILTON D. KORMAN, ESQ., on behalf of Respondents.
PROCEEDINGS
No. 413, Bolling et al., v. C. Melvin Sharpe et al.
Mr. Nabrit?
Mr. Nabrit?
ARGUMENT OF JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF PETITIONERS—RESUMED
ON BEHALF OF PETITIONERS—RESUMED
If it please the Court:
At the close of the Court's session yesterday, we were attempting to outline the basic arguments of the petitioners. Unfortunately, we only have ten minutes left, and probably we can barely outline it. We would like to address ourselves, however, to some of the questions which seem to be of concern to the Court in these cases.
At the close of the Court's session yesterday, we were attempting to outline the basic arguments of the petitioners. Unfortunately, we only have ten minutes left, and probably we can barely outline it. We would like to address ourselves, however, to some of the questions which seem to be of concern to the Court in these cases.
Before you sit down, I hope you will include in your answers the answer to this question, whether during the life of this statute there came before Congress periodically or at such periods as there did come, if any, the requirement to make appropriations for the enforcement of this statute; or, since you question whether they had the duty to enforce it the way they did, for the things that the District authorities did, and whether during that period there was any legislative effort to stop these appropriations or to prohibit the authorities from doing what I understand you and your colleagues said was not authorized by this legislation.
I would be very happy to address myself to that at this moment, Mr. Justice Frankfurter.
In looking at these statutes enacted by Congress governing the schools in the District, I should like to preface my answer by saying that the first statute passed with respect to public education in the District of Columbia was passed in 1862. Now, at the time petitioners drafted their briefs in support of our proposition, we had taken the position that the statutes did require it, and we did set out the history. However, if the Court is interested in the history, there is in the brief filed in this case amicus curiae for the 18 organizations, on pages 20 and 21, some historical analysis of these statutes, which may be of help to the Court.
The Court may also take judicial notice of the Barnard Report, which is in the special report of the Commissioner of Education of the Public Schools of the District of Columbia in 1871, and in that volume at page 49 and page 267 they give the history of the public schools of the District of Columbia up to that time, and they also discuss the Act of 1864, to which I shall advert in just a moment.
In looking at these statutes enacted by Congress governing the schools in the District, I should like to preface my answer by saying that the first statute passed with respect to public education in the District of Columbia was passed in 1862. Now, at the time petitioners drafted their briefs in support of our proposition, we had taken the position that the statutes did require it, and we did set out the history. However, if the Court is interested in the history, there is in the brief filed in this case amicus curiae for the 18 organizations, on pages 20 and 21, some historical analysis of these statutes, which may be of help to the Court.
The Court may also take judicial notice of the Barnard Report, which is in the special report of the Commissioner of Education of the Public Schools of the District of Columbia in 1871, and in that volume at page 49 and page 267 they give the history of the public schools of the District of Columbia up to that time, and they also discuss the Act of 1864, to which I shall advert in just a moment.
Is that report referred to in your brief or in the amici brief?
No.
What is the name of that report?
The District of Columbia, the Barnard Special Report, Commissioner of Education of the Public Schools in the District of Columbia, 1871.
Thank you.
That is the Government Printing Office. It does not give any other name. It is the House of Representatives.
Now, if the Court please, in 1862 this was the situation in the District of Columbia. There were a number of private schools for whites and a number of private schools for Negroes in Georgetown, Washington, and the District of Columbia. As you recall, we had not yet combined all of those into what is now the District. But for purposes of this discussion I think that the Court may take those as one.
At that time, these private schools were supported by private philanthropy. In 1862, Congress, as discussions in Congress indicated—about that there is no dispute—being concerned about the support of the schools which existed in the District for the Negroes, enacted a measure which provided that these schools should be supported by tax funds derived from taxes levied upon free Negroes.
That did not appear either to produce revenue or to be satisfactory. So Congress then enacted a statute the latter part of that year in which Congress said that these schools should be supported by funds derived from the general revenue, that is, from the taxes of all of the inhabitants of the District. Now, this, as you recall, was in 1862, before the Fourteenth Amendment and before the actual effect of the Emancipation Proclamation.
Now, at this time the members of the legislature stated that they were concerned about what should be done for the Negroes who would be free. I think it is also fair to say to the Court that in the Barnard Report, to which I referred, the Congressmen, in presenting this to the House and stating that there had been no printed report of the proceedings, stated that they were providing no separate schools for Negroes because they had no adequate financial support, and they were concerned about the educational situation.
In 1864, the basic acts out of which grow the present acts governing the schools in the District of Columbia were enacted. They provided in substance that suitable rooms and schools should be provided for the training of the colored pupils, and in addition to that they provided mandatory legislation to ensure that a proportionate share of the funds secured from revenue in the District should be allotted to these schools. I might say to the Court that they did this because experience had shown that there was some diversion of funds that Congress had intended for these schools to the white schools.
Now, all of this is uncontroverted. There is no dispute about this.
Then, after the proposal of the Fourteenth Amendment in 1866, and after its adoption in 1868, there was, in 1874, a re-enactment of these statutes, in substance as they are found in our brief. Now, it appears to petitioners that it is the contention of the respondents that that re-enactment after the adoption of the Fourteenth Amendment was a congressional construction of these acts that they permitted separate schools, and I think that it was the issue which underlies the question of Mr. Justice Frankfurter, as to re-enactment of these statutes and as to the appropriations in respect to these acts over all these years.
Now, if the Court please, in 1862 this was the situation in the District of Columbia. There were a number of private schools for whites and a number of private schools for Negroes in Georgetown, Washington, and the District of Columbia. As you recall, we had not yet combined all of those into what is now the District. But for purposes of this discussion I think that the Court may take those as one.
At that time, these private schools were supported by private philanthropy. In 1862, Congress, as discussions in Congress indicated—about that there is no dispute—being concerned about the support of the schools which existed in the District for the Negroes, enacted a measure which provided that these schools should be supported by tax funds derived from taxes levied upon free Negroes.
That did not appear either to produce revenue or to be satisfactory. So Congress then enacted a statute the latter part of that year in which Congress said that these schools should be supported by funds derived from the general revenue, that is, from the taxes of all of the inhabitants of the District. Now, this, as you recall, was in 1862, before the Fourteenth Amendment and before the actual effect of the Emancipation Proclamation.
Now, at this time the members of the legislature stated that they were concerned about what should be done for the Negroes who would be free. I think it is also fair to say to the Court that in the Barnard Report, to which I referred, the Congressmen, in presenting this to the House and stating that there had been no printed report of the proceedings, stated that they were providing no separate schools for Negroes because they had no adequate financial support, and they were concerned about the educational situation.
In 1864, the basic acts out of which grow the present acts governing the schools in the District of Columbia were enacted. They provided in substance that suitable rooms and schools should be provided for the training of the colored pupils, and in addition to that they provided mandatory legislation to ensure that a proportionate share of the funds secured from revenue in the District should be allotted to these schools. I might say to the Court that they did this because experience had shown that there was some diversion of funds that Congress had intended for these schools to the white schools.
Now, all of this is uncontroverted. There is no dispute about this.
Then, after the proposal of the Fourteenth Amendment in 1866, and after its adoption in 1868, there was, in 1874, a re-enactment of these statutes, in substance as they are found in our brief. Now, it appears to petitioners that it is the contention of the respondents that that re-enactment after the adoption of the Fourteenth Amendment was a congressional construction of these acts that they permitted separate schools, and I think that it was the issue which underlies the question of Mr. Justice Frankfurter, as to re-enactment of these statutes and as to the appropriations in respect to these acts over all these years.
Do I understand that the schools were separate prior to the adoption of the Fourteenth Amendment?
Yes, sir, they were.
And at one time they taxed property separately; they taxed colored property for the maintenance of colored schools and white property for the maintenance of white schools?
No. They did not say anything about the white schools. I should say this—
The white schools were run out of general revenues?
I presume so. I did not find that phrase. But I would answer your question by saying that they must have been supported out of the general revenue, since this special provision was made.
But I should say this, Mr. Chief Justice. At this time, public education—this is the first public education attempt in the District of Columbia—public education itself was suspect in the country, especially with these compulsory features that were attached to it, so that the least we can say is that at the beginning of public education, Congress indicated before the Fourteenth Amendment, by its support to these separate schools, that at that time separate schools existed and could exist.
But I should say this, Mr. Chief Justice. At this time, public education—this is the first public education attempt in the District of Columbia—public education itself was suspect in the country, especially with these compulsory features that were attached to it, so that the least we can say is that at the beginning of public education, Congress indicated before the Fourteenth Amendment, by its support to these separate schools, that at that time separate schools existed and could exist.
And in the District of Columbia, they did exist at the time of the passage and the adoption of the Fourteenth Amendment?
That is correct.
Now, it is the petitioners' position at that stage in the history of these statutes that prior to the adoption of the Fourteenth Amendment, respondents can get no support from whatever Congress did with these schools; that they must gain their support by reason of the action of Congress thereafter. I think they joined in that position. It is therefore the position of petitioners that the action of Congress in 1874, in re-enacting these statutes, is not persuasive on this Court as to whether or not either, one, Congress intended compulsory or authorized segregation in the District, or, two, whether that is constitutional.
Now, it is the petitioners' position at that stage in the history of these statutes that prior to the adoption of the Fourteenth Amendment, respondents can get no support from whatever Congress did with these schools; that they must gain their support by reason of the action of Congress thereafter. I think they joined in that position. It is therefore the position of petitioners that the action of Congress in 1874, in re-enacting these statutes, is not persuasive on this Court as to whether or not either, one, Congress intended compulsory or authorized segregation in the District, or, two, whether that is constitutional.
Mr. Nabrit, in view of the questions from the bench, you may have five minutes more time, and the District may have similar time.
Thank you.
As to the re-enactment of these statutes—
As to the re-enactment of these statutes—
I did not mean to divert you on any legal implication. I wanted to know what the facts were, whether from year to year appropriations had to be made, or whether the question was raised, and whether it got through without anybody's thinking about it.
Yes, sir. I wanted to address myself to that, but I thought you were entitled to have some background for it. Now, specifically addressing myself—
Apparently there is no reference in the briefs to legislative history. Was there a discussion of the desirability or the undesirability of segregation in 1874?
I do not know about 1874, but there was a discussion of it prior to 1874, in 1866 and 1864.
Was it directed toward the adoption of segregation?
That is right. And there was considerable difference of opinion among the Negroes in the District of Columbia on that question.
I meant on the floor of the Congress.
It was not printed, you see. So we just have to suppose that there was some discussion. I would say for the purpose of the Court, it might be assumed that there was discussion. But it was not printed.
But that was prior to the adoption of the Amendment?
That is right. And we take the position that on this particular problem, it is not persuasive to the Court.
Now, as to your specific question, Mr. Justice Frankfurter, there have been acts in support of these schools, appropriation acts, directed to the support of this separate system in the District of Columbia each year, and also in 1906 a group of citizens went before Congress to urge in the appropriation bill the adoption of more powers for the then assistant Negro superintendent.
Also, subsequent to that, there was agitation for the creation of another first assistant superintendent for the white schools and for the Negro schools; and in each of those two instances, Congress provided the money and the position, and as to the first assistant, white and colored, they wrote that into the legislation, in addition to the appropriation.
Now, as to whether or not—
Now, as to your specific question, Mr. Justice Frankfurter, there have been acts in support of these schools, appropriation acts, directed to the support of this separate system in the District of Columbia each year, and also in 1906 a group of citizens went before Congress to urge in the appropriation bill the adoption of more powers for the then assistant Negro superintendent.
Also, subsequent to that, there was agitation for the creation of another first assistant superintendent for the white schools and for the Negro schools; and in each of those two instances, Congress provided the money and the position, and as to the first assistant, white and colored, they wrote that into the legislation, in addition to the appropriation.
Now, as to whether or not—
You say they wrote into the legislation that there was to be an assistant, or deputy, superintendent for colored schools and for white schools?
Precisely, in language as clear as that.
That goes back to when, you say? 1906?
Nineteen hundred six was when they enlarged the powers. This last act, I believe, was in 1947. I mean, this first assistant.
MR. JUSTICE FRANKFURTER; But it was in 1906 that there was explicit legislative recognition that there is such a person as a superintendent for colored schools?
MR. JUSTICE FRANKFURTER; But it was in 1906 that there was explicit legislative recognition that there is such a person as a superintendent for colored schools?
This is correct.
There is no question so far as petitioners are concerned that that type of language has persisted in the District of Columbia. And as to the enforcement, there is no question about it; the Congress has done it.
It is petitioners' position, one, that there is nothing in this language that anybody can find that compels segregation. This is clear. There is language which may be said to permit it, or authorize it. About that, men may differ. Some may think that the differences are unreasonable, in view of the language. It is petitioners' position that it does not authorize it. But if it does authorize it, to the extent that it is implemented by these respondents, it is unconstitutional action on the part of respondents.
There is no question so far as petitioners are concerned that that type of language has persisted in the District of Columbia. And as to the enforcement, there is no question about it; the Congress has done it.
It is petitioners' position, one, that there is nothing in this language that anybody can find that compels segregation. This is clear. There is language which may be said to permit it, or authorize it. About that, men may differ. Some may think that the differences are unreasonable, in view of the language. It is petitioners' position that it does not authorize it. But if it does authorize it, to the extent that it is implemented by these respondents, it is unconstitutional action on the part of respondents.
You would say that providing whatever it is, x thousand dollars salary, for an assistant superintendent for Negro schools is merely a provision that if there are to be Negro schools, and if there is to be the assistant superintendent, he is to get 6,000 dollars; is that it?
I would go further than that. I would say, since there is in the District of Columbia a system of Negro schools—I mean, I would recognize the fact that they are.
If you say that—
I would.
I wonder if you are not saying, since there is, and Congress appropriated for it, that it recognized the right, at least, under the statute, that there should be Negro schools?
Now, the reason I do not say that, Mr. Justice Frankfurter, is that the language of this Court in Ex parte Endo, when they said that wherever there is implied legislation which restricts the individual, or curtails, to use the Court's language, the individual rights of citizens, that curtailment has to be explicitly stated in clear and unmistakable language.
It does not touch on a constitutional point.
Yes.
I wonder if it does not carry permissiveness into a clear recognition by Congress here in the situation where they provide money, because the alternative is that Congress was providing money for something that they did not authorize.
I would say yes, and I would say that that would not change petitioners' position. In other words, I agree to that.
Now, with this other principle, I want to say—
Now, with this other principle, I want to say—
In the course of these years, was there opposition to this legislation, or were there voices raised to the Congress, or objections to this? Did the issue ever come to discussion or to challenge?
As to whether or not this system should be changed?
Yes. MR. NABRIT: In the early years—
I am not meaning to draw any inference. I just want the facts.
In the early years, there was such discussion. And I am also of the opinion that we may, on an exhaustive study of that question, find such language even later; and it is petitioners' position that, as this Court has said, Congress does not enact statutes, or does not deal with things in many instances, for political or other reasons; so that petitioners would not consider that persuasive.
Now, I would like to say this final thing before my time runs out, that if the Court disagrees with us, which it may, and says that these statutes compelled and authorized, and therefore this action may be constitutional, we urge the Court not to do it, because, as this Court has said, where a possible interpretation might lead into the danger of declaring a statute unconstitutional, the Court will avoid that construction.
It is our opinion that if you do hold that these statutes compelled and authorized, they would then be unconstitutional under the due process clause of the Fifth Amendment. But more than that, we suggest to the Court that they would be in violation of Article I, section 9, clause 3, as bills of attainder, not under the classical concept of a bill of attainder, but under the concept of a bill of attainder as enunciated by this Court in United States v. Lovett, and it would appear to us that denial of admission solely on the basis of race or color of petitioners to Sousa fits precisely the formula set forth by this Court in United States v. Lovett.
Now, if I have time, I will explain it. That is, in United States v. Lovett, this Court said that where Congress had named Lovett and two others in an appropriations bill and said that they should not receive funds from that until they had been recommended by the President and approved by Congress, that that was a permanent ban on employment. This Court went to the congressional discussion to find out whether they were trying to get them for disloyalty and subversive activities.
Now, we say that if this Court decides that these statutes prohibit Negroes from ever associating with whites or ever studying with whites in a white school, they have placed the same ban upon them, and they have done it without a trial, as in the other, merely because for some undisclosed crime, some status, some position, some matter of birth, appropriation, or something else in the past, these Negroes are unfit to associate with whites, and under the definition of a bill of attainder as laid down by this Court in United States v. Lovett, we suggest that there would be another danger that these acts would be unconstitutional.
Therefore, we urge upon this Court not to adopt that construction, and we say this to the Court: You would not reach the constitutionality, because if you find these statutes do not require it and do not authorize it, then the action of respondents is unlawful, and you may direct admission into Sousa Junior High School.
Now, I would like to say this final thing before my time runs out, that if the Court disagrees with us, which it may, and says that these statutes compelled and authorized, and therefore this action may be constitutional, we urge the Court not to do it, because, as this Court has said, where a possible interpretation might lead into the danger of declaring a statute unconstitutional, the Court will avoid that construction.
It is our opinion that if you do hold that these statutes compelled and authorized, they would then be unconstitutional under the due process clause of the Fifth Amendment. But more than that, we suggest to the Court that they would be in violation of Article I, section 9, clause 3, as bills of attainder, not under the classical concept of a bill of attainder, but under the concept of a bill of attainder as enunciated by this Court in United States v. Lovett, and it would appear to us that denial of admission solely on the basis of race or color of petitioners to Sousa fits precisely the formula set forth by this Court in United States v. Lovett.
Now, if I have time, I will explain it. That is, in United States v. Lovett, this Court said that where Congress had named Lovett and two others in an appropriations bill and said that they should not receive funds from that until they had been recommended by the President and approved by Congress, that that was a permanent ban on employment. This Court went to the congressional discussion to find out whether they were trying to get them for disloyalty and subversive activities.
Now, we say that if this Court decides that these statutes prohibit Negroes from ever associating with whites or ever studying with whites in a white school, they have placed the same ban upon them, and they have done it without a trial, as in the other, merely because for some undisclosed crime, some status, some position, some matter of birth, appropriation, or something else in the past, these Negroes are unfit to associate with whites, and under the definition of a bill of attainder as laid down by this Court in United States v. Lovett, we suggest that there would be another danger that these acts would be unconstitutional.
Therefore, we urge upon this Court not to adopt that construction, and we say this to the Court: You would not reach the constitutionality, because if you find these statutes do not require it and do not authorize it, then the action of respondents is unlawful, and you may direct admission into Sousa Junior High School.
Mr. Korman?
ARGUMENT OF MILTON D. KORMAN, ESQ.,
ON BEHALF OF THE RESPONDENTS
ON BEHALF OF THE RESPONDENTS
May it please the Court:
Questions have been asked by the Court concerning the history
of this legislation, and my distinguished opponent, Mr. Hayes, has thrown the gauntlet down to us to show the real reason for this type of legislation setting up a dual school system in the District of Columbia. I shall endeavor to point out to the Court the history of this legislation, and I accept the challenge of Mr. Hayes to show what the real reason for this legislation was.
In 1862, there was slavery in the District of Columbia. In April of 1862, by an Act of April 16, the Congress abolished slavery in the District. That was three and one-half years before the Thirteenth Amendment abolished it in the states.
There was a problem of doing something for these emancipated people. Up to that point, they had had no schools except some few private schools for the free Negroes. So the first enactment of Congress on May 20, 1862, was to set up a system of schools in the County of Washington. At that time, the District of Columbia consisted of three parts: the City of Georgetown, the City of Washington, and the County of Washington. They were distinct entities. The City of Georgetown had its own council, mayor and board of aldermen; the City of Washington had the same setup; the county was governed by a levy court. It appears that there were no schools of any kind, white or colored, in the county. There apparently were schools for white children, publicly supported, in the cities.
On May 20, 1862, the Congress passed an enactment which established a system of schools in the county, white and colored. It was a long act, with some 36 sections to it, and in section 35 they provided that the levy court in its discretion—apparently there were not many Negroes in the county at that time—but the levy court in its discretion might levy a tax of one-eighth of one percent on property owned by persons of color for the purpose of initiating a system of education of colored children in said county.
But I remind you that in that same act they set up for the first time a system of white schools in the county. Now, in that same paragraph 35, they said this:
And said trustees are authorized to receive any donations or contributions that may he made for the benefit of said schools—
—that is, the schools for colored children—
—by persons disposed to aid in the elevation of the colored population in the District of Columbia.
That was the purpose of these acts, to aid in the elevation of the colored population of the District of Columbia, and not to stamp them, as Mr. Hayes says, with a badge of inferiority, this pure racism that he speaks of. They were trying to elevate these people.
It goes on to say that:
Said trustees shall account for those funds.
Then the next day, May 21, the Congress passed another act for the Cities of Washington and Georgetown, and with your permission I should like to read that entire Act, which is not lengthy, because to me it shows what the purpose of this legislation was:
Be it enacted—and so forth—
That from and after the passage of this Act it shall be the duty of the municipal authorities of the Cities of Washington and Georgetown in the District of Columbia to set apart ten per-centum of the amount received from taxes levied on the real and personal property in said Cities owned by persons of color, which sum received from taxes as aforesaid shall be appropriated for the purpose of initiating a system of primary schools for the education of colored children residing in said Cities.
Be it further enacted that the board of trustees of the public schools in said Cities shall have sole control of the fund arising from the tax aforesaid as well as from contributions by persons disposed to aid in the education of the colored race, or from any other source which shall be kept as a distinct fund from the general school fund.
Which I believe answers Mr. Justice Frankfurter's question.
It is made their duty to provide suitable rooms and teachers for the number of schools as in their opinion will best accommodate the colored children in the various portions of said Cities.
Section 3 deals with the setting up of boards of trustees, which says that they shall have equal supervision over both the white and colored schools.
Section 4—this is the same Act, I remind Your Honors—
That all persons of color in the District of Columbia or in the corporate limits of the Cities of Washington and Georgetown shall be subject and amenable to the same laws and ordinances to which free white persons are or may be subject amenable; that they shall be tried for any offenses against the laws in the same manner as free white persons are or may be tried for the same offenses, and that upon being legally convicted of any crime or offense against any law or ordinance, such persons of color shall be liable to the same penalty or punishment, and no other, as would be imposed on or inflicted upon white persons for the same crime or offense and all acts or parts of acts inconsistent with the provisions of this Act are hereby repealed.
Now, when we find those provisions in the same Act setting up schools for colored children and saying that they may receive funds from those who may want to help the colored race, and setting up these provisions for equal treatment of both races before the law, there can be no question of what the intention of the Congress was at that time.
On July 11, 1862, a few months later, Congress transferred to the board of trustees of the schools for colored children—of the schools for colored children—thereby creating the powers with respect to such schools vested by the Act of May 21 in the board of trustees for public schools in the cities.
By an Act of June 25, 1864, Congress established the Board of Commissioners of Primary Schools of Washington County, District of Columbia, and in section 9 thereof authorized that Board to purchase sites, erect schools, regulate the number of children to be taught in each school, and the price of tuition, and so on, and said this:
That any white resident might place his or her child in the schools provided for the education of white children in said county, and any colored resident should have the same rights with respect to the colored schools.
It seems to me that that definitely established an intent to set up separate schools.
Then in the Act of May 21, 1862, in section 18 of that Act, they authorized the municipal authorities of the Cities of Washington and Georgetown to set apart each year from the whole fund received from all sources applicable to public education such proportionate part thereof as the number of colored children between the ages of sixteen and seventeen in the respective cities bears to the total number of children to help support these colored schools.
Then in 1871, the Congress enacted the Legislative Assembly Act, which combined the Cities of Washington and Georgetown and the county into one unit, and they transferred all these schools to the combined board of education which governed all of the schools in the two cities and the county.
A question was asked by Mr. Justice Frankfurter, I believe, as to whether or not there were any specific attacks upon this system of separate schools, and it was intimated that, while there were some before the adoption of the Fourteenth Amendment, there were none thereafter. I specifically call the Court's attention to the fact, which is mentioned in our brief, that in the Forty-First, Forty-Second, and Forty-Third Congresses, between 1870 and 1874, there were three separate bills introduced by Senator Sumner of Massachusetts to strike down the dual school system in the District of Columbia, and they all failed of passage. The Fourteenth Amendment was adopted in 1868, and all three of these things came after that.
Specifically, I call the Court's attention to the fact that the Civil Rights Act of 1875 was debated over a considerable period during the Forty-Second and Forty-Third Congresses, although that Act is not now constitutional, having been so declared on other grounds. But the bill which became the Civil Rights Act of 1875, as originally drawn, specifically provided for the abolition of separation in the schools of the United States, in and out of the District of Columbia; but as finally enacted, the word "schools" was stricken from that Act.
So it seems to me that as late as 1875, you have a specific declaration by Congress that there shall be a dual school system in the District of Columbia.
Now, what transpired thereafter? In 1900, Congress set up a new school board, a paid school board, of seven persons, and they provided at that time for a board of education, a superintendent, and two assistant superintendents, one of whom under the direction of the superintendent shall have charge of the schools for colored children. That was the Act of June 6, 1900.
Then, in 1906, the Congress reorganized the whole school system here, and they established the present Board of Directors as it exists today. The organic Act of 1906 was debated at some length, and there were lengthy hearings on that before a Subcommittee of the Congress.
In our brief, I set forth some of the expressions of Negro leaders at that time, and I should ask the Court to please bear with me while I read some of them to you, because it seems to me that they go to the very heart of this question. We find Professor William A. Joiner—
Questions have been asked by the Court concerning the history
of this legislation, and my distinguished opponent, Mr. Hayes, has thrown the gauntlet down to us to show the real reason for this type of legislation setting up a dual school system in the District of Columbia. I shall endeavor to point out to the Court the history of this legislation, and I accept the challenge of Mr. Hayes to show what the real reason for this legislation was.
In 1862, there was slavery in the District of Columbia. In April of 1862, by an Act of April 16, the Congress abolished slavery in the District. That was three and one-half years before the Thirteenth Amendment abolished it in the states.
There was a problem of doing something for these emancipated people. Up to that point, they had had no schools except some few private schools for the free Negroes. So the first enactment of Congress on May 20, 1862, was to set up a system of schools in the County of Washington. At that time, the District of Columbia consisted of three parts: the City of Georgetown, the City of Washington, and the County of Washington. They were distinct entities. The City of Georgetown had its own council, mayor and board of aldermen; the City of Washington had the same setup; the county was governed by a levy court. It appears that there were no schools of any kind, white or colored, in the county. There apparently were schools for white children, publicly supported, in the cities.
On May 20, 1862, the Congress passed an enactment which established a system of schools in the county, white and colored. It was a long act, with some 36 sections to it, and in section 35 they provided that the levy court in its discretion—apparently there were not many Negroes in the county at that time—but the levy court in its discretion might levy a tax of one-eighth of one percent on property owned by persons of color for the purpose of initiating a system of education of colored children in said county.
But I remind you that in that same act they set up for the first time a system of white schools in the county. Now, in that same paragraph 35, they said this:
And said trustees are authorized to receive any donations or contributions that may he made for the benefit of said schools—
—that is, the schools for colored children—
—by persons disposed to aid in the elevation of the colored population in the District of Columbia.
That was the purpose of these acts, to aid in the elevation of the colored population of the District of Columbia, and not to stamp them, as Mr. Hayes says, with a badge of inferiority, this pure racism that he speaks of. They were trying to elevate these people.
It goes on to say that:
Said trustees shall account for those funds.
Then the next day, May 21, the Congress passed another act for the Cities of Washington and Georgetown, and with your permission I should like to read that entire Act, which is not lengthy, because to me it shows what the purpose of this legislation was:
Be it enacted—and so forth—
That from and after the passage of this Act it shall be the duty of the municipal authorities of the Cities of Washington and Georgetown in the District of Columbia to set apart ten per-centum of the amount received from taxes levied on the real and personal property in said Cities owned by persons of color, which sum received from taxes as aforesaid shall be appropriated for the purpose of initiating a system of primary schools for the education of colored children residing in said Cities.
Be it further enacted that the board of trustees of the public schools in said Cities shall have sole control of the fund arising from the tax aforesaid as well as from contributions by persons disposed to aid in the education of the colored race, or from any other source which shall be kept as a distinct fund from the general school fund.
Which I believe answers Mr. Justice Frankfurter's question.
It is made their duty to provide suitable rooms and teachers for the number of schools as in their opinion will best accommodate the colored children in the various portions of said Cities.
Section 3 deals with the setting up of boards of trustees, which says that they shall have equal supervision over both the white and colored schools.
Section 4—this is the same Act, I remind Your Honors—
That all persons of color in the District of Columbia or in the corporate limits of the Cities of Washington and Georgetown shall be subject and amenable to the same laws and ordinances to which free white persons are or may be subject amenable; that they shall be tried for any offenses against the laws in the same manner as free white persons are or may be tried for the same offenses, and that upon being legally convicted of any crime or offense against any law or ordinance, such persons of color shall be liable to the same penalty or punishment, and no other, as would be imposed on or inflicted upon white persons for the same crime or offense and all acts or parts of acts inconsistent with the provisions of this Act are hereby repealed.
Now, when we find those provisions in the same Act setting up schools for colored children and saying that they may receive funds from those who may want to help the colored race, and setting up these provisions for equal treatment of both races before the law, there can be no question of what the intention of the Congress was at that time.
On July 11, 1862, a few months later, Congress transferred to the board of trustees of the schools for colored children—of the schools for colored children—thereby creating the powers with respect to such schools vested by the Act of May 21 in the board of trustees for public schools in the cities.
By an Act of June 25, 1864, Congress established the Board of Commissioners of Primary Schools of Washington County, District of Columbia, and in section 9 thereof authorized that Board to purchase sites, erect schools, regulate the number of children to be taught in each school, and the price of tuition, and so on, and said this:
That any white resident might place his or her child in the schools provided for the education of white children in said county, and any colored resident should have the same rights with respect to the colored schools.
It seems to me that that definitely established an intent to set up separate schools.
Then in the Act of May 21, 1862, in section 18 of that Act, they authorized the municipal authorities of the Cities of Washington and Georgetown to set apart each year from the whole fund received from all sources applicable to public education such proportionate part thereof as the number of colored children between the ages of sixteen and seventeen in the respective cities bears to the total number of children to help support these colored schools.
Then in 1871, the Congress enacted the Legislative Assembly Act, which combined the Cities of Washington and Georgetown and the county into one unit, and they transferred all these schools to the combined board of education which governed all of the schools in the two cities and the county.
A question was asked by Mr. Justice Frankfurter, I believe, as to whether or not there were any specific attacks upon this system of separate schools, and it was intimated that, while there were some before the adoption of the Fourteenth Amendment, there were none thereafter. I specifically call the Court's attention to the fact, which is mentioned in our brief, that in the Forty-First, Forty-Second, and Forty-Third Congresses, between 1870 and 1874, there were three separate bills introduced by Senator Sumner of Massachusetts to strike down the dual school system in the District of Columbia, and they all failed of passage. The Fourteenth Amendment was adopted in 1868, and all three of these things came after that.
Specifically, I call the Court's attention to the fact that the Civil Rights Act of 1875 was debated over a considerable period during the Forty-Second and Forty-Third Congresses, although that Act is not now constitutional, having been so declared on other grounds. But the bill which became the Civil Rights Act of 1875, as originally drawn, specifically provided for the abolition of separation in the schools of the United States, in and out of the District of Columbia; but as finally enacted, the word "schools" was stricken from that Act.
So it seems to me that as late as 1875, you have a specific declaration by Congress that there shall be a dual school system in the District of Columbia.
Now, what transpired thereafter? In 1900, Congress set up a new school board, a paid school board, of seven persons, and they provided at that time for a board of education, a superintendent, and two assistant superintendents, one of whom under the direction of the superintendent shall have charge of the schools for colored children. That was the Act of June 6, 1900.
Then, in 1906, the Congress reorganized the whole school system here, and they established the present Board of Directors as it exists today. The organic Act of 1906 was debated at some length, and there were lengthy hearings on that before a Subcommittee of the Congress.
In our brief, I set forth some of the expressions of Negro leaders at that time, and I should ask the Court to please bear with me while I read some of them to you, because it seems to me that they go to the very heart of this question. We find Professor William A. Joiner—
What page is that?
This is on page 25 of respondents' brief.
We find Professor William A. Joiner, of Howard University addressing the Committee, and I did not include the letter which he had presented to the Committee, but I should like to read you one sentence from the letter which he handed to the Committee prior to making this statement. He says this, and this is found or page 199 of the hearings on that bill:
Experience in the past dating back to the first organization of the schools for colored children in the District has tended to prove that the interests of these schools are most carefully guarded by those who are most deeply interested in the children who attend them.
Then he said this:
I think, Mr. Chairman, that that embodies the main sentiment as expressed by that organization, an organization composed of those whose minds have led them into literary pursuits and those who have given attention to the best welfare and interest of their people. It may seem strange that this particular word `colored' or the idea of colored schools thrusts itself into this argument. I would it were not so. Facts are stubborn things, and when we deal with facts we must deal with them as they exist and not as we would they were; and so, Mr. Chairman, it becomes our province and our duty to do what we can to see that in the administration of school affairs in that most precious birthright of equality of opportunity spoken to us by President Eliot of Harvard that there will not be the slightest divergence from the division, `unto him who needs and most unto him who needs most.'
Then Professor Lewis B. Moore, of Howard University, said this at the same hearings, and I am reading from page 26 of our brief:
Give us what is being asked for here by the colored citizens, give us that, and we shall conduct under the guidance of the Board of Education the colored schools of the District of Columbia in such a way as to produce just as good results as are produced anywhere else in this country.
As the result of those sorts of expressions, we find this in the report on the bill, which became the Act of 1906, setting up the school board: The bill does not change the number of assistant superintendents, merely enlarging the power of the colored superintendent so that he shall, besides having jurisdiction over the colored grade schools, also have entire jurisdiction over the colored normal, high, and manual training schools. This was done at the earnest solicitation of the colored educators who appeared before the Committee and was heartily endorsed by the superintendent of Howard University. The hearings developed that a great deal of friction had arisen between the director of high schools and the teachers in the colored high school, and to avoid this it was the unanimous opinion and desire of all who testified that not only should the colored superintendent have control, but that the colored schools in every instance should be designated as colored schools, so that no possible mistake could arise in that regard.
So in the Act of 1906, the Congress provided for a superintendent of schools and for two assistant superintendents of schools, one of whom, a colored man, should have charge of the colored schools.
That is not, however, the last expression by the Congress upon this point. As has been intimated, every year for practically ninety years there have been applications to the Congress for funds to operate these schools, and every year the justification for the appropriations has contained statements that so much is needed for colored schools, so much is needed for colored teachers, so much is needed for white schools, so much is needed for white teachers, so much is needed for new construction because the colored population has increased and we need another colored school and so forth and so forth.
In addition, in the Teachers' Salary Act of 1945, we find these expressions by the Congress:
There shall be two first assistant superintendents of schools—
—they are now first assistant superintendents—
—one white first assistant superintendent for the white schools, who under the direction of the superintendent of schools shall have general supervision over the white schools, and one colored first assistant superintendent for the colored schools who under the direction of the superintendent of schools shall have sole charge of all employees, classes and schools in which colored children are taught.
Not the colored schools, but the schools, classes, and employees under which colored children are taught.
The next section of that Act is:
Boards of examiners for carrying out the provisions of the statutes with reference to the examination of teachers shall consist of the superintendent of schools and not less than four or more than six members of the supervisory or teaching staff of the white schools for the white schools, and of the superintendent of schools and not less than four nor more than six members of the supervisory or teaching staff of the colored schools for the colored schools.
Then in the next section:
There shall be appointed a board of education on the recommendation of the superintendent of schools, a chief examiner for the board of examiners for white schools, and an associate superintendent in the colored schools shall be designated by the superintendent as chief examiner for the board of examiners for the colored schools.
And so on; almost identical language in the Teachers' Salary Act of 1947, two years later. And the latest expression by the Congress on that score was the Act of October 24, 1951, amending the Teachers' Salary Act, where we find in section 13—and this was one year ago, if the Court please:
There shall be appointed by the Board of Education on the recommendation of the superintendent of schools a chief examiner for the board of examiners for white schools and a chief examiner for the board of examiners for colored schools. All members of the respective boards of examiners shall serve without additional compensation.
It seems to me that that should dispose of this question of whether or not Congress intended that there should be separate schools for white and colored children.
In addition, however, twice in the history of these acts, the United States Court of Appeals for the District of Columbia Circuit has passed upon the question. In the case of Wall v. Oyster in 1910, the court specifically said that these acts of 1862 and 1864 and so on that I read to the Court, and which were carried over into the revised statutes in 1874—the court said that they "manifest an intention by Congress that these schools shall be separate. In the case of Carr v. Corning, and Browne v. Magdeburger, decided on a joint opinion in 1950, the court came to exactly the same conclusion, the court saying:
These various enactments by the Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate.
Now, in the light of those decisions by the highest court of the District of Columbia—and I remind the Court that this Court has said many times that it accepts the construction of purely locally applicable statutes as decided by the highest court of the jurisdiction—in the case of the states, the interpretation by the highest court of the state is, it has been said, completely binding on this Court, and in the case of the Court of Appeals of the District of Columbia, this Court has said several times that in most instances and generally, you accept the interpretation of that court of locally applicable statutes.
I might read to you further from the expressions of leaders at the time the bill which became the Act of 1906 was being considered. There were expressions by Dr. Kelly Miller, one of the leaders of his people in this city, one of the foremost fighters for rights for the colored people. Indeed, one of the newest junior high schools for colored in the District is named after him, and he says essentially the same things that I have read to Your Honors in support of that Act of 1906.
What, then, is the situation? I say to the Court, and I say to my distinguished adversary, Mr. Hayes, these acts were not passed.
We find Professor William A. Joiner, of Howard University addressing the Committee, and I did not include the letter which he had presented to the Committee, but I should like to read you one sentence from the letter which he handed to the Committee prior to making this statement. He says this, and this is found or page 199 of the hearings on that bill:
Experience in the past dating back to the first organization of the schools for colored children in the District has tended to prove that the interests of these schools are most carefully guarded by those who are most deeply interested in the children who attend them.
Then he said this:
I think, Mr. Chairman, that that embodies the main sentiment as expressed by that organization, an organization composed of those whose minds have led them into literary pursuits and those who have given attention to the best welfare and interest of their people. It may seem strange that this particular word `colored' or the idea of colored schools thrusts itself into this argument. I would it were not so. Facts are stubborn things, and when we deal with facts we must deal with them as they exist and not as we would they were; and so, Mr. Chairman, it becomes our province and our duty to do what we can to see that in the administration of school affairs in that most precious birthright of equality of opportunity spoken to us by President Eliot of Harvard that there will not be the slightest divergence from the division, `unto him who needs and most unto him who needs most.'
Then Professor Lewis B. Moore, of Howard University, said this at the same hearings, and I am reading from page 26 of our brief:
Give us what is being asked for here by the colored citizens, give us that, and we shall conduct under the guidance of the Board of Education the colored schools of the District of Columbia in such a way as to produce just as good results as are produced anywhere else in this country.
As the result of those sorts of expressions, we find this in the report on the bill, which became the Act of 1906, setting up the school board: The bill does not change the number of assistant superintendents, merely enlarging the power of the colored superintendent so that he shall, besides having jurisdiction over the colored grade schools, also have entire jurisdiction over the colored normal, high, and manual training schools. This was done at the earnest solicitation of the colored educators who appeared before the Committee and was heartily endorsed by the superintendent of Howard University. The hearings developed that a great deal of friction had arisen between the director of high schools and the teachers in the colored high school, and to avoid this it was the unanimous opinion and desire of all who testified that not only should the colored superintendent have control, but that the colored schools in every instance should be designated as colored schools, so that no possible mistake could arise in that regard.
So in the Act of 1906, the Congress provided for a superintendent of schools and for two assistant superintendents of schools, one of whom, a colored man, should have charge of the colored schools.
That is not, however, the last expression by the Congress upon this point. As has been intimated, every year for practically ninety years there have been applications to the Congress for funds to operate these schools, and every year the justification for the appropriations has contained statements that so much is needed for colored schools, so much is needed for colored teachers, so much is needed for white schools, so much is needed for white teachers, so much is needed for new construction because the colored population has increased and we need another colored school and so forth and so forth.
In addition, in the Teachers' Salary Act of 1945, we find these expressions by the Congress:
There shall be two first assistant superintendents of schools—
—they are now first assistant superintendents—
—one white first assistant superintendent for the white schools, who under the direction of the superintendent of schools shall have general supervision over the white schools, and one colored first assistant superintendent for the colored schools who under the direction of the superintendent of schools shall have sole charge of all employees, classes and schools in which colored children are taught.
Not the colored schools, but the schools, classes, and employees under which colored children are taught.
The next section of that Act is:
Boards of examiners for carrying out the provisions of the statutes with reference to the examination of teachers shall consist of the superintendent of schools and not less than four or more than six members of the supervisory or teaching staff of the white schools for the white schools, and of the superintendent of schools and not less than four nor more than six members of the supervisory or teaching staff of the colored schools for the colored schools.
Then in the next section:
There shall be appointed a board of education on the recommendation of the superintendent of schools, a chief examiner for the board of examiners for white schools, and an associate superintendent in the colored schools shall be designated by the superintendent as chief examiner for the board of examiners for the colored schools.
And so on; almost identical language in the Teachers' Salary Act of 1947, two years later. And the latest expression by the Congress on that score was the Act of October 24, 1951, amending the Teachers' Salary Act, where we find in section 13—and this was one year ago, if the Court please:
There shall be appointed by the Board of Education on the recommendation of the superintendent of schools a chief examiner for the board of examiners for white schools and a chief examiner for the board of examiners for colored schools. All members of the respective boards of examiners shall serve without additional compensation.
It seems to me that that should dispose of this question of whether or not Congress intended that there should be separate schools for white and colored children.
In addition, however, twice in the history of these acts, the United States Court of Appeals for the District of Columbia Circuit has passed upon the question. In the case of Wall v. Oyster in 1910, the court specifically said that these acts of 1862 and 1864 and so on that I read to the Court, and which were carried over into the revised statutes in 1874—the court said that they "manifest an intention by Congress that these schools shall be separate. In the case of Carr v. Corning, and Browne v. Magdeburger, decided on a joint opinion in 1950, the court came to exactly the same conclusion, the court saying:
These various enactments by the Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate.
Now, in the light of those decisions by the highest court of the District of Columbia—and I remind the Court that this Court has said many times that it accepts the construction of purely locally applicable statutes as decided by the highest court of the jurisdiction—in the case of the states, the interpretation by the highest court of the state is, it has been said, completely binding on this Court, and in the case of the Court of Appeals of the District of Columbia, this Court has said several times that in most instances and generally, you accept the interpretation of that court of locally applicable statutes.
I might read to you further from the expressions of leaders at the time the bill which became the Act of 1906 was being considered. There were expressions by Dr. Kelly Miller, one of the leaders of his people in this city, one of the foremost fighters for rights for the colored people. Indeed, one of the newest junior high schools for colored in the District is named after him, and he says essentially the same things that I have read to Your Honors in support of that Act of 1906.
What, then, is the situation? I say to the Court, and I say to my distinguished adversary, Mr. Hayes, these acts were not passed.
This dual school system was not set up to stamp these people with a badge of inferiority. There was not this racial feeling that he speaks of with such fervor behind these acts. There was behind these acts a kindly feeling; there was behind these acts an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be. a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations.
We cannot hide our faces and our minds from the fact that there is feeling between races in these United States. It is a deplorable situation. Would that it were not so. But we must face these facts.
We know that there have been outbursts between races north of here where there are not separate schools for white and colored. We know that these things exist, and constitutionally, if there be a question as to which is better, to throw these people together into the schools and perhaps bring that hostile atmosphere, if it exists, into the schoolroom and harm the ability to learn of both the races, or to give them completely adequate, separate, full educational opportunities on both sides, where they will be instructed on the white side by white teachers, who are sympathetic to them, and on the colored side by colored teachers, who are sympathetic to them, and where they will receive from the lips of their own people education in colored folklore, which is important to a people—if that is to be decided, who else shall decide it but the legislature, who decides things for each jurisdiction? And I say that the Constitution does not inveigh against such a determination by the legislature.
The Fifth Amendment contains a due process clause, as does the Fourteenth Amendment. It does not, however, contain an equal protection clause. It has been said by this Court that the Congress is not bound not to pass discriminatory laws. It can pass discriminatory laws, because there is no equal protection clause in the Fifth Amendment. This Court has likewise, over a long period of time, some ninety years, said that under the Fourteenth Amendment separate schools for white and colored children may be retained.
If, therefore, this Court has said that such schools may be maintained under the Fourteenth Amendment where there is an equal protection clause, how can my friends here argue to the Court that there may not be a dual school system in the District of Columbia for such fine reasons as I have demonstrated to the Court, when there is no equal protection clause binding on the Congress of the United States?
And if there be questions concerning the long line of decisions leading up to this point where this Court has said that separation in schools is proper and constitutional, there can be no clearer statement than there was in the case of Gaines v. Canada, decided scarcely fourteen years ago, where this Court said, through Mr. Chief Justice Hughes:
The state has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.
That was the language, "a method the validity of which has been sustained by our decisions."
But then they went on to say that you cannot do it in this case because those equal facilities have to be within the borders of the state and not outside the state.
That is all that case said. But it established the principle that if there were separate but equal facilities within the state, then it was constitutional. And I say to the Court that it is conceded here by my distinguished opponents that there is no question of equality here.
You live here in the District of Columbia or its environs. You know that we have a complete system of schools here. I invite your attention to the fact that it is so complete that we have two side-by-side complete systems of schools for white and colored, autonomous each in every respect, with one exception: one superintendent over them and a board of education laying down the policy for both systems. But from the janitor up to the first assistant superintendent, the colored schools are completely autonomous, and if we need an exhibit of what fine people they turn out, I will turn to my friend here, a product of the local schools.
What has changed the Constitution in fourteen years, since the Gaines case? What changes have occurred? What policy announcements have there been by the Congress?
Questions were directed to counsel all through these cases about changed conditions. Mr. Justice Burton asked counsel if it were not true that these other cases could be disposed of as being proper law at the time they were decided, but not now in the light of changed conditions.
I ask the rhetorical question: What changed conditions? What has happened in fourteen years that we did not know in 1938 when the Gaines case was decided? What is there now?
I submit to the Court that the answer is: Nothing is new. The Constitution is the same today as it was in 1938 at the time all these other decisions came from the lips of this Court.
It has been said here by our distinguished opponents—indeed, it has been said by the Attorney General of the United States—that Washington, this District of Columbia in which we live, is the window through which the world looks upon us. It does not seem to me that is a constitutional argument, and I should like to read something to the Court, if I may, with the Court's indulgence. This comes from this Court. After I have read it, I will tell you the case it comes from:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
—or, if I may paraphrase by saying, "than they were intended to bear at the time of each amendment of it"—
Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.
—or, if I may paraphrase, "at the time of its amendment"—
It is not only the same in words, but the same in meaning, and delegates the same powers to the Government and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
That, Your Honors, was from Dred Scott v. Sandford, oh, almost one hundred years ago. But it is equally applicable today. They speak there of the civilized nations and how we look to them, just as my friends say to us here today that we must be careful; as the Attorney General says, we must be careful because the Iron Curtain countries talk about us. But he admits that they tell some lies about us. Would the change in this system stop them from telling lies if they want to tell them?
As regards the question of the applicability of the Fifth Amendment, even the Attorney General concedes that it raises a grave constitutional question when we say, "Does the Fifth Amendment control the situation?"
To some extent, I am indebted to the Attorney General for some of the things he has said in his brief amicus curiae. He speaks of "vexing problems which may arise in eliminating segregation," and he suggests to the Court that if you should come to the point where you should strike down separate schools in the United States then you should do it gradually over a period, which he suggests as much as fifteen years, class by class, starting in the kindergarten and going on up. Why? Because, I say to the Court, he recognizes that "vexing problems would arise in many places."
Before I leave the Fifth Amendment, there was a suggestion by Mr. Justice Jackson that there might be effect upon the Indians if this Court should hold that separate schools may not be maintained under the Fifth Amendment. And I suggest that there are whole chapters of the United States Code which are entitled "Protection of the Indians," and under which Congress has legislated especially for them, because it is recognized that there is a people that needs protection. You and I can go out and buy a bottle of liquor if we want. The Indian cannot, nowhere in the United States. And he is a citizen. Why? Because it is recognized that it is not good for him, and he needs protection. That assumes, I know, that it is good for us.
We know that there have been outbursts between races north of here where there are not separate schools for white and colored. We know that these things exist, and constitutionally, if there be a question as to which is better, to throw these people together into the schools and perhaps bring that hostile atmosphere, if it exists, into the schoolroom and harm the ability to learn of both the races, or to give them completely adequate, separate, full educational opportunities on both sides, where they will be instructed on the white side by white teachers, who are sympathetic to them, and on the colored side by colored teachers, who are sympathetic to them, and where they will receive from the lips of their own people education in colored folklore, which is important to a people—if that is to be decided, who else shall decide it but the legislature, who decides things for each jurisdiction? And I say that the Constitution does not inveigh against such a determination by the legislature.
The Fifth Amendment contains a due process clause, as does the Fourteenth Amendment. It does not, however, contain an equal protection clause. It has been said by this Court that the Congress is not bound not to pass discriminatory laws. It can pass discriminatory laws, because there is no equal protection clause in the Fifth Amendment. This Court has likewise, over a long period of time, some ninety years, said that under the Fourteenth Amendment separate schools for white and colored children may be retained.
If, therefore, this Court has said that such schools may be maintained under the Fourteenth Amendment where there is an equal protection clause, how can my friends here argue to the Court that there may not be a dual school system in the District of Columbia for such fine reasons as I have demonstrated to the Court, when there is no equal protection clause binding on the Congress of the United States?
And if there be questions concerning the long line of decisions leading up to this point where this Court has said that separation in schools is proper and constitutional, there can be no clearer statement than there was in the case of Gaines v. Canada, decided scarcely fourteen years ago, where this Court said, through Mr. Chief Justice Hughes:
The state has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.
That was the language, "a method the validity of which has been sustained by our decisions."
But then they went on to say that you cannot do it in this case because those equal facilities have to be within the borders of the state and not outside the state.
That is all that case said. But it established the principle that if there were separate but equal facilities within the state, then it was constitutional. And I say to the Court that it is conceded here by my distinguished opponents that there is no question of equality here.
You live here in the District of Columbia or its environs. You know that we have a complete system of schools here. I invite your attention to the fact that it is so complete that we have two side-by-side complete systems of schools for white and colored, autonomous each in every respect, with one exception: one superintendent over them and a board of education laying down the policy for both systems. But from the janitor up to the first assistant superintendent, the colored schools are completely autonomous, and if we need an exhibit of what fine people they turn out, I will turn to my friend here, a product of the local schools.
What has changed the Constitution in fourteen years, since the Gaines case? What changes have occurred? What policy announcements have there been by the Congress?
Questions were directed to counsel all through these cases about changed conditions. Mr. Justice Burton asked counsel if it were not true that these other cases could be disposed of as being proper law at the time they were decided, but not now in the light of changed conditions.
I ask the rhetorical question: What changed conditions? What has happened in fourteen years that we did not know in 1938 when the Gaines case was decided? What is there now?
I submit to the Court that the answer is: Nothing is new. The Constitution is the same today as it was in 1938 at the time all these other decisions came from the lips of this Court.
It has been said here by our distinguished opponents—indeed, it has been said by the Attorney General of the United States—that Washington, this District of Columbia in which we live, is the window through which the world looks upon us. It does not seem to me that is a constitutional argument, and I should like to read something to the Court, if I may, with the Court's indulgence. This comes from this Court. After I have read it, I will tell you the case it comes from:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
—or, if I may paraphrase by saying, "than they were intended to bear at the time of each amendment of it"—
Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.
—or, if I may paraphrase, "at the time of its amendment"—
It is not only the same in words, but the same in meaning, and delegates the same powers to the Government and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
That, Your Honors, was from Dred Scott v. Sandford, oh, almost one hundred years ago. But it is equally applicable today. They speak there of the civilized nations and how we look to them, just as my friends say to us here today that we must be careful; as the Attorney General says, we must be careful because the Iron Curtain countries talk about us. But he admits that they tell some lies about us. Would the change in this system stop them from telling lies if they want to tell them?
As regards the question of the applicability of the Fifth Amendment, even the Attorney General concedes that it raises a grave constitutional question when we say, "Does the Fifth Amendment control the situation?"
To some extent, I am indebted to the Attorney General for some of the things he has said in his brief amicus curiae. He speaks of "vexing problems which may arise in eliminating segregation," and he suggests to the Court that if you should come to the point where you should strike down separate schools in the United States then you should do it gradually over a period, which he suggests as much as fifteen years, class by class, starting in the kindergarten and going on up. Why? Because, I say to the Court, he recognizes that "vexing problems would arise in many places."
Before I leave the Fifth Amendment, there was a suggestion by Mr. Justice Jackson that there might be effect upon the Indians if this Court should hold that separate schools may not be maintained under the Fifth Amendment. And I suggest that there are whole chapters of the United States Code which are entitled "Protection of the Indians," and under which Congress has legislated especially for them, because it is recognized that there is a people that needs protection. You and I can go out and buy a bottle of liquor if we want. The Indian cannot, nowhere in the United States. And he is a citizen. Why? Because it is recognized that it is not good for him, and he needs protection. That assumes, I know, that it is good for us.
I live very close to the Seneca Reservation in New York, and I would just as soon deal with a drunken Indian as with a drunken white man, myself, under modern conditions. It may have been different in the days of scalping knives.
Possibly so.
Referring to the educational system in the part of the country I come from, the Indians are not barred from the public schools, but the schools on the reservations are open only to Indians, and the white man would be barred from those schools.
That is quite a different problem, Mr. Justice. In anticipation of that question, I talked to representatives of the Indian Bureau, and I was told by them that there are some 230 schools on reservations which are restricted to Indians, and there are 19 schools off reservations which are restricted to Indians.
That merely keeps the white man out. The public school systems of the West, at least, are open to Indians.
That may be. But that is a state proposition, left up to the states in the individual case. If the states want to let them in and think that it will not cause a problem, that is up to the legislature of the states.
Some of these cases are state questions.
Perhaps.
Not yours?
Perhaps.
I call your attention to the fact that there is separation, I have learned, by sexes in many of the large cities of the country, not in all the schools, apparently, but in some, perhaps for some special reason. I find from the National Education Association that they have separate schools for the sexes in San Francisco, Louisville, New Orleans, Baltimore, Boston, Elizabeth, Buffalo, New York City, even, Cleveland, Portland, Philadelphia. Such cities as those separate by sexes. Those are the things which are left to the decision of the legislature, the competent authority in each case to decide what is best for that community.
Of course, this Court has said many times that it is not concerned with the wisdom of legislation or the policy except as it is expressed in acts of Congress.
Mention has been made that there is violation of the Civil Rights Act. The two sections of the Civil Rights Act that are set forth in the complaint and in the brief for the appellants are sections 41 and 43, and in the case which first had to deal with that, a case for Indiana, the Court reviewed the Civil Rights statute at some length, and said, after reading the language of the statute:
In this, nothing is left to inference. Every right intended is specified.
The Court of Appeals of the District of Columbia, in Carr v. Corning, came to exactly the same conclusion.
I should like to point out, with reference to the Civil Rights Act, that Mr. Justice Vinson in the case of Hurd v. Hodge pointed out the fact that the Civil Rights Act of 1866, as amended in 1970, was passed by the same Congress that submitted the Fourteenth Amendment to the states, and that that same Congress, as was pointed out in Carr v. Corning, as I pointed out to the Court earlier—that same Congress is the one which passed some of these laws setting up separate schools in the District of Columbia for the two races. How, then, can it be said that the contemporaneous thought on this by the people who made these enactments had any idea that schools were to be included in the Civil Rights Act?
In Hurd v. Hodge, there was another section of the Civil Rights Act involved, section 42 of Title 8 of the United States Code, and that dealt only with the right to hold and own real property and to transfer it and lease it and contract for it, and so on. That has no bearing on the question of the right to integrate the schools in the District of Columbia.
My distinguished opponents have taken a different tack here than they have in their brief and than they took in their petition and in the argument in the district court with regard to the provisions of the United Nations Charter. In their petition and in their brief they have said that these laws violate the provisions of the United Nations Charter. Apparently they recede from that position now, and they say only that the United Nations Charter expresses the policy of the United States. If it expresses the policy of the United States, it expresses the policy of the United States to enact legislation upon a particular subject, and that is all that it expresses.
It has been demonstrated rather clearly that the United Nations Charter is not a self-executing treaty. It is a non-self-executing treaty which must be implemented by Acts of Congress. In Article 55 of the Charter it is said:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
Higher standards of living, full employment, and conditions of economic and social progress and development;
Solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and
Universal respect for, and observance of, human rights and fundamental freedoms for all with no distinction as to race, sex, language, or religion.
All that we say in there is that we pledge ourselves in future legislation to keep these things in mind. And as set forth in our brief, the framers of that Article 55 intended only that it was to give to the rest of the world those constitutional rights which we have here in America and which they are denied. That was the purpose of it. That was the purpose expressed to the Senate of the United States when they presented this Charter to them for ratification. That was the purpose expressed to the President of the United States in the report on the Charter as it came out of San Francisco.
What is the meaning of "human rights and fundamental freedoms"? It is not defined in the Charter anywhere. "Fundamental freedom" is not defined. No one knows what it means. There has been set up a separate organization, an organization which I think is called the Council on Human Rights, which has attempted to define that term, but it has been stated specifically by Mrs. Roosevelt, who heads that, that that has no binding effect even on the General Assembly of the United Nations, much less on the signatory powers.
We bar people into this country on grounds of polygamy. Polygamy is a fundamental right and freedom in some nations. How can these things be justified together? They cannot be.
My distinguished friend, Mr. Nabrit, has said that these laws constitute a bill of attainder. As I read the law of a bill of attainder, I shall give the definition as it comes from the leading case in the United States, Cummings against Missouri, 4 Wall. 277. At page 323 of that opinion, the Court said:
A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the form or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.
This Court has said that when it speaks of punishment, it may mean deprivation of rights, but it means deprivation of rights, civil or political, previously enjoyed, which may be punishment.
These people have never enjoyed anything which has been taken away from them. These laws which set up these schools for them were to give them something, and not to take something away from them. These laws which set up the dual school system in the District of Columbia are not to take anything from my friends and they are not to take anything from the white children. They are set up so that there will be schools which have an atmosphere wholesome to the reception of education by both races. That is the only thing that Congress has said is right for them in the District of Columbia.
They attempted to twist this word "punishment" in some way to say that they have punishment inflicted upon them by being required to go to schools to which white children are not admitted and by being denied the right to go to schools in which white children are taught. I cannot really get their reasoning. Before that, they cite some of these sociologists, some of these psychologists that have been mentioned in earlier arguments.
In this brief I have set forth a list of publications, monographs, psychological treatises, and what-not that oppose the views of the psychologists that have been named by my friends and by those in the other cases. I do not say that either one or the other is right. I take no position on that. I do not know. I am not a sociologist. Frankly, I think the effect of that psychological testimony has been already demolished here in this Court by Mr. Davis and Mr. Moore.
I might say more upon it, but I do not think that the issue justifies further argument. I leave with the Court the citations, however; if the Court thinks that they have any merit at all.
It seems to me, Your Honors, that I have answered specifically the points which have been raised by my adversaries, and I have answered, I believe, most of the questions which the Court has put to other counsel. It seems to me, as I have listened to seven hours of argument that preceded my addressing the Court, this is the situation, that my friends say, "This is the time for a change."
I call your attention to the fact that there is separation, I have learned, by sexes in many of the large cities of the country, not in all the schools, apparently, but in some, perhaps for some special reason. I find from the National Education Association that they have separate schools for the sexes in San Francisco, Louisville, New Orleans, Baltimore, Boston, Elizabeth, Buffalo, New York City, even, Cleveland, Portland, Philadelphia. Such cities as those separate by sexes. Those are the things which are left to the decision of the legislature, the competent authority in each case to decide what is best for that community.
Of course, this Court has said many times that it is not concerned with the wisdom of legislation or the policy except as it is expressed in acts of Congress.
Mention has been made that there is violation of the Civil Rights Act. The two sections of the Civil Rights Act that are set forth in the complaint and in the brief for the appellants are sections 41 and 43, and in the case which first had to deal with that, a case for Indiana, the Court reviewed the Civil Rights statute at some length, and said, after reading the language of the statute:
In this, nothing is left to inference. Every right intended is specified.
The Court of Appeals of the District of Columbia, in Carr v. Corning, came to exactly the same conclusion.
I should like to point out, with reference to the Civil Rights Act, that Mr. Justice Vinson in the case of Hurd v. Hodge pointed out the fact that the Civil Rights Act of 1866, as amended in 1970, was passed by the same Congress that submitted the Fourteenth Amendment to the states, and that that same Congress, as was pointed out in Carr v. Corning, as I pointed out to the Court earlier—that same Congress is the one which passed some of these laws setting up separate schools in the District of Columbia for the two races. How, then, can it be said that the contemporaneous thought on this by the people who made these enactments had any idea that schools were to be included in the Civil Rights Act?
In Hurd v. Hodge, there was another section of the Civil Rights Act involved, section 42 of Title 8 of the United States Code, and that dealt only with the right to hold and own real property and to transfer it and lease it and contract for it, and so on. That has no bearing on the question of the right to integrate the schools in the District of Columbia.
My distinguished opponents have taken a different tack here than they have in their brief and than they took in their petition and in the argument in the district court with regard to the provisions of the United Nations Charter. In their petition and in their brief they have said that these laws violate the provisions of the United Nations Charter. Apparently they recede from that position now, and they say only that the United Nations Charter expresses the policy of the United States. If it expresses the policy of the United States, it expresses the policy of the United States to enact legislation upon a particular subject, and that is all that it expresses.
It has been demonstrated rather clearly that the United Nations Charter is not a self-executing treaty. It is a non-self-executing treaty which must be implemented by Acts of Congress. In Article 55 of the Charter it is said:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
Higher standards of living, full employment, and conditions of economic and social progress and development;
Solutions of international economic, social, health and related problems; and international cultural and educational cooperation; and
Universal respect for, and observance of, human rights and fundamental freedoms for all with no distinction as to race, sex, language, or religion.
All that we say in there is that we pledge ourselves in future legislation to keep these things in mind. And as set forth in our brief, the framers of that Article 55 intended only that it was to give to the rest of the world those constitutional rights which we have here in America and which they are denied. That was the purpose of it. That was the purpose expressed to the Senate of the United States when they presented this Charter to them for ratification. That was the purpose expressed to the President of the United States in the report on the Charter as it came out of San Francisco.
What is the meaning of "human rights and fundamental freedoms"? It is not defined in the Charter anywhere. "Fundamental freedom" is not defined. No one knows what it means. There has been set up a separate organization, an organization which I think is called the Council on Human Rights, which has attempted to define that term, but it has been stated specifically by Mrs. Roosevelt, who heads that, that that has no binding effect even on the General Assembly of the United Nations, much less on the signatory powers.
We bar people into this country on grounds of polygamy. Polygamy is a fundamental right and freedom in some nations. How can these things be justified together? They cannot be.
My distinguished friend, Mr. Nabrit, has said that these laws constitute a bill of attainder. As I read the law of a bill of attainder, I shall give the definition as it comes from the leading case in the United States, Cummings against Missouri, 4 Wall. 277. At page 323 of that opinion, the Court said:
A bill of attainder is a legislative act, which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the textbooks, judicial magistracy; it pronounces upon the guilt of the party, without any of the form or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.
This Court has said that when it speaks of punishment, it may mean deprivation of rights, but it means deprivation of rights, civil or political, previously enjoyed, which may be punishment.
These people have never enjoyed anything which has been taken away from them. These laws which set up these schools for them were to give them something, and not to take something away from them. These laws which set up the dual school system in the District of Columbia are not to take anything from my friends and they are not to take anything from the white children. They are set up so that there will be schools which have an atmosphere wholesome to the reception of education by both races. That is the only thing that Congress has said is right for them in the District of Columbia.
They attempted to twist this word "punishment" in some way to say that they have punishment inflicted upon them by being required to go to schools to which white children are not admitted and by being denied the right to go to schools in which white children are taught. I cannot really get their reasoning. Before that, they cite some of these sociologists, some of these psychologists that have been mentioned in earlier arguments.
In this brief I have set forth a list of publications, monographs, psychological treatises, and what-not that oppose the views of the psychologists that have been named by my friends and by those in the other cases. I do not say that either one or the other is right. I take no position on that. I do not know. I am not a sociologist. Frankly, I think the effect of that psychological testimony has been already demolished here in this Court by Mr. Davis and Mr. Moore.
I might say more upon it, but I do not think that the issue justifies further argument. I leave with the Court the citations, however; if the Court thinks that they have any merit at all.
It seems to me, Your Honors, that I have answered specifically the points which have been raised by my adversaries, and I have answered, I believe, most of the questions which the Court has put to other counsel. It seems to me, as I have listened to seven hours of argument that preceded my addressing the Court, this is the situation, that my friends say, "This is the time for a change."
Does that have anything to do with the law in the case?
I do not think so, sir.
You do not.
There has been a promise of change.
Sir, if there has been a promise of change and it comes through the proper channels, I certainly, and the respondents certainly, have no objection to it, if it comes in the proper way by the judgment of the Congress that should pass upon it. We do not object to it. But if they decide that there is no need further for separation of the children of white and colored people in the schools so that the two may benefit from being separated because of the receptive air, the wholesome atmosphere that pervades these schools, we do not object.
Perhaps this is the time. I do. not know. But I say that this is not the forum for such arguments. I say that these arguments should be made in the halls of Congress, and not in this chamber.
Incidentally, while there has been talk about breaking down segregation in all fields, I note that it has not been completely broken down in the armed forces, where it could be done by executive order, where we do not have to go to the Court and we do not have to go to the Congress. There have been some moves in that direction—and incidentally, while we are talking about progress in that direction, I should like to call the attention of the Court—and I am indebted to my friends in the amici briefs for this, because they have pointed to those fields wherein there has been advancement, where there is no longer segregation, and I thank them for suggesting it to me; and I have looked into it myself and I find that here in the District of Columbia Negroes are admitted to all the legitimate theaters, that they are admitted to a number of downtown moving pictures, that they are admitted to a number of the fine restaurants, including the famous Harvey's Restaurant, that there is a gradual integration on the playgrounds, that they are admitted onto all the recreation areas, that they are accepted into many of our larger and better hotels, that they serve on the staffs of the hospitals—particularly, I call your attention to the Gallinger Hospital, which is conducted by the District of Columbia—that they take part in entertainment and in athletic contests along with white people. I say to you that even in the school system there has been a movement toward the betterment, or a breaking down, let us say, a breaking down of any of the possible feeling of hostility, the possible thought that these races cannot get along together. It has recently been ruled that mixed groups of entertainers may come into the schools and put on performances, which was denied them previously. This is not generally known, but in the southwest section there have been joint meetings called of teachers, parents and pupils, where they confer together for the betterment of their neighborhood.
Those are steps which have been accomplished without the intervention of courts, without the intervention of legislative bodies, and if those things have been accomplished, pray God the day will come when all things will be merged and the white and colored men will meet together in every place, even in the school, and it will not require even arguments from my friends before the halls of Congress, because there will be a general acceptance of the proposition that these two races can live side by side without friction, without hostility, without any occurrences. If that be so, then there will be a general movement without their taking any action to help it, without their seeking it, to bring those things about.
This legislation is now in the place where it can be handled by the Congress, and not where it will be cut off completely by this Court without power of change.
I should like to read to Your Honors what Judge Prettyman of the United States Court of Appeals said in 1950 in the Carr case:
Since the beginning of human history, no circumstance has given rise to more difficult and delicate problems than has the coexistence of different races in the same area. Centuries of bitter experience in all parts of the world have proved that the problem is insoluble by force of any sort. The same history shows that it is soluble by the patient processes of community experience. Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstances.
That is what I urge upon this Court, to leave this issue where constitutionally it belongs, in the body that can legislate one way or another as it finds the situation to be and as it finds the needs to be in each community. Particularly, I speak for the District of Columbia. But I say it is true in all areas. And these allusions to the Japanese cases and the other cases that they have said to Your Honors control this situation, I say they do not. In those cases, there were complete denials. Hirabayashi, Korematsu, and Endo were kept in their homes as prisoners. They were taken from their homes and put in concentration camps. Takahashi was denied the right to fish; and in the Farrington case, which they say is the nearest approach to their problem, there was an attempt to legislate out of existence by regulation the foreign language schools of Hawaii.
In each of these cases, there was either denial or an attempt to completely deny. These people are denied nothing. They have a complete system of education, which they admit is equal in all respects. They do not raise that issue.
I say to the Court that this issue should be left to the Congress where it belongs. There is no constitutional issue here. It has been decided by this Court. It should be left where it now is.
Perhaps this is the time. I do. not know. But I say that this is not the forum for such arguments. I say that these arguments should be made in the halls of Congress, and not in this chamber.
Incidentally, while there has been talk about breaking down segregation in all fields, I note that it has not been completely broken down in the armed forces, where it could be done by executive order, where we do not have to go to the Court and we do not have to go to the Congress. There have been some moves in that direction—and incidentally, while we are talking about progress in that direction, I should like to call the attention of the Court—and I am indebted to my friends in the amici briefs for this, because they have pointed to those fields wherein there has been advancement, where there is no longer segregation, and I thank them for suggesting it to me; and I have looked into it myself and I find that here in the District of Columbia Negroes are admitted to all the legitimate theaters, that they are admitted to a number of downtown moving pictures, that they are admitted to a number of the fine restaurants, including the famous Harvey's Restaurant, that there is a gradual integration on the playgrounds, that they are admitted onto all the recreation areas, that they are accepted into many of our larger and better hotels, that they serve on the staffs of the hospitals—particularly, I call your attention to the Gallinger Hospital, which is conducted by the District of Columbia—that they take part in entertainment and in athletic contests along with white people. I say to you that even in the school system there has been a movement toward the betterment, or a breaking down, let us say, a breaking down of any of the possible feeling of hostility, the possible thought that these races cannot get along together. It has recently been ruled that mixed groups of entertainers may come into the schools and put on performances, which was denied them previously. This is not generally known, but in the southwest section there have been joint meetings called of teachers, parents and pupils, where they confer together for the betterment of their neighborhood.
Those are steps which have been accomplished without the intervention of courts, without the intervention of legislative bodies, and if those things have been accomplished, pray God the day will come when all things will be merged and the white and colored men will meet together in every place, even in the school, and it will not require even arguments from my friends before the halls of Congress, because there will be a general acceptance of the proposition that these two races can live side by side without friction, without hostility, without any occurrences. If that be so, then there will be a general movement without their taking any action to help it, without their seeking it, to bring those things about.
This legislation is now in the place where it can be handled by the Congress, and not where it will be cut off completely by this Court without power of change.
I should like to read to Your Honors what Judge Prettyman of the United States Court of Appeals said in 1950 in the Carr case:
Since the beginning of human history, no circumstance has given rise to more difficult and delicate problems than has the coexistence of different races in the same area. Centuries of bitter experience in all parts of the world have proved that the problem is insoluble by force of any sort. The same history shows that it is soluble by the patient processes of community experience. Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstances.
That is what I urge upon this Court, to leave this issue where constitutionally it belongs, in the body that can legislate one way or another as it finds the situation to be and as it finds the needs to be in each community. Particularly, I speak for the District of Columbia. But I say it is true in all areas. And these allusions to the Japanese cases and the other cases that they have said to Your Honors control this situation, I say they do not. In those cases, there were complete denials. Hirabayashi, Korematsu, and Endo were kept in their homes as prisoners. They were taken from their homes and put in concentration camps. Takahashi was denied the right to fish; and in the Farrington case, which they say is the nearest approach to their problem, there was an attempt to legislate out of existence by regulation the foreign language schools of Hawaii.
In each of these cases, there was either denial or an attempt to completely deny. These people are denied nothing. They have a complete system of education, which they admit is equal in all respects. They do not raise that issue.
I say to the Court that this issue should be left to the Congress where it belongs. There is no constitutional issue here. It has been decided by this Court. It should be left where it now is.
REBUTTAL ARGUMENT OF
JAMES M. NABRIT, JR., ESQ.,
ON BEHALF OF APPELLANTS
ON BEHALF OF APPELLANTS
If the Court please:
I would like to adopt for the petitioners the complete argument of Mr. Korman with respect to changed conditions and to urge the Court that those changed conditions that he suggests are the very conditions that we have been saying to the Court should have a bearing upon the construction of these acts of respondents.
In the District of Columbia, contrary to the situation in the states, he has explained that the whole situation is one in which this action will create no problems, so that the question of "vexatious problems" which he mentioned does not exist in the District, and we adopt his answers to that.
Now, with respect to his statement that there is no constitutional issue, we think our brief deals with this whole argument. It appears that he does not believe that there is a constitutional issue and refuses to meet it. Giving to his argument the full meaning of it, that is, that these statutes give the authority, he has failed to deal with the question as to whether or not, conceding that they are authorized by the statutes, that is a constitutional delegation of power, and he has not addressed himself to that.
Rather he has dwelt in the past upon the white man's burden, and he has seemed to feel that for some reason that exists today. It would appear to me that in 1952, the Negro should not be viewed as anybody's burden. He is a citizen. He is performing his duties in peace and in war, and today, on the bloody hills of Korea, he is serving in an unsegregated war.
I would like to adopt for the petitioners the complete argument of Mr. Korman with respect to changed conditions and to urge the Court that those changed conditions that he suggests are the very conditions that we have been saying to the Court should have a bearing upon the construction of these acts of respondents.
In the District of Columbia, contrary to the situation in the states, he has explained that the whole situation is one in which this action will create no problems, so that the question of "vexatious problems" which he mentioned does not exist in the District, and we adopt his answers to that.
Now, with respect to his statement that there is no constitutional issue, we think our brief deals with this whole argument. It appears that he does not believe that there is a constitutional issue and refuses to meet it. Giving to his argument the full meaning of it, that is, that these statutes give the authority, he has failed to deal with the question as to whether or not, conceding that they are authorized by the statutes, that is a constitutional delegation of power, and he has not addressed himself to that.
Rather he has dwelt in the past upon the white man's burden, and he has seemed to feel that for some reason that exists today. It would appear to me that in 1952, the Negro should not be viewed as anybody's burden. He is a citizen. He is performing his duties in peace and in war, and today, on the bloody hills of Korea, he is serving in an unsegregated war.
All we ask of this Court is that it say that under the Constitution he is entitled to live and send his children to school in the District of Columbia unsegregated, with the children of his war comrades. That is simple. The Constitution gives him that right.
The basic question here is one of liberty, and under liberty, under the due process clause, you cannot deal with it as you deal with equal protection of laws, because there you deal with it as a quantum of treatment, substantially equal. You either have liberty or you do not. When liberty is interfered with by the state, it has to be justified, and you cannot justify it by saying that we only took a little liberty. You justify it by the reasonableness of the taking.
We submit that in this case, in the heart of the nation's capital, in the capital of democracy, in the capital of the free world, there is no place for a segregated school system. This country cannot afford it, and the Constitution does not permit it, and the statutes of Congress do not authorize it.
We submit that in this case, in the heart of the nation's capital, in the capital of democracy, in the capital of the free world, there is no place for a segregated school system. This country cannot afford it, and the Constitution does not permit it, and the statutes of Congress do not authorize it.
Whereupon, at 1:27 o'clock p.m., the argument was concluded.
Francis B. Gebhart et al. v. Ethel Louise Belton et al.
Washington, D. C.
Thursday, December 11, 1952
Thursday, December 11, 1952
No. 448
Petitioners
FRANCIS B. GEBHART, ET AL.
Respondents
ETHEL LOUISE BELTON, ET AL., and SHIRLEY BARBARA BULAH, ET AL.
The above-entitled cause came on for oral argument at 1:27 p.m.
Before
FRED M. VINSON, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
HUGO L. BLACK, Associate Justice
STANLEY F. REED, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
ROBERT H. JACKSON, Associate Justice
HAROLD H. BURTON, Associate Justice
THOMAS C. CLARK, Associate Justice
SHERMAN MINTON, Associate Justice
Appearances
H. ALBERT YOUNG, ESQ., on behalf of Petitioners.
LOUIS L. REDDING, ESQ., on behalf of Respondents.
JACK GREENBERG, ESQ., on behalf of Respondents.
LOUIS L. REDDING, ESQ., on behalf of Respondents.
JACK GREENBERG, ESQ., on behalf of Respondents.
PROCEEDINGS
Case No. 448, Francis B. Gebhart and others v. Ethel Louise Belton and others.
Counsel are present.
OPENING ARGUMENT OF
H. ALBERT YOUNG, ESQ.,
ON BEHALF OF PETITIONERS
H. ALBERT YOUNG, ESQ.,
ON BEHALF OF PETITIONERS
May it please the Court:
It seems that I have a Herculean task to perform in attempting to add to what has already been presented for some eight hours of argument before this Court. But there are some points which I will only touch upon briefly since it has been so ably presented by counsel in all of the other cases that preceded mine for argument.
In this case, involving the State of Delaware, a petition for writ of certiorari and supporting brief was filed on November 13 of this year. The Delaware Supreme Court handed down its mandate on September 9, 1952, and certiorari was granted on November 24, 1952, the Court advising me that I would be permitted to file my brief not later than three weeks after argument, and I can assure the Court that the brief will be in before the three weeks are out.
Jurisdiction in this case is invoked under 28 United States Code, section 1257, paragraph 3. The validity of the Delaware constitutional provisions and the statutes invoked was challenged by the respondents. The pertinent provisions of the Delaware constitution and statute are as follows, section 1, Article 10 of the Constitution of the State of Delaware being as follows:
The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public schools, unless educated by other means.
Section 2. In addition to the income of the investments of the Public School Fund, the General Assembly shall make provision for the annual payment of not less than one hundred thousand dollars for the benefit of the free public schools which, with the income of the investments of the Public School Fund shall be equitably apportioned among the school districts of the State as the General Assembly shall provide; and the money so apportioned shall be used exclusively for the payment of teachers' salaries and for furnishing free textbooks; provided, however, that in such apportionment, no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained.
The statutory counterpart provides:
The State Board of Education is authorized, empowered, directed and required to maintain a uniform, equal and effective system of public schools throughout the State, and shall cause the provisions of this Chapter, the bylaws or rules and regulations and the policies of the State Board of Education to be carried into effect. The schools provided shall be of two kinds: those for white children and those for colored children.
The State contended that under our constitution and statutes, segregation in the public schools was lawful and not in violation of the equal protection clause of the Fourteenth Amendment, and that if inequalities were found to exist, any judgment in favor of the plaintiffs should be limited to an injunction directing the defendants to equalize the facilities within a reasonable time.
The Delaware Court of Chancery and the Delaware Supreme Court held that these provisions, insofar as they require segregation in the public schools based on race or color, do not offend against the provisions of the Fourteenth Amendment forbidding any state to deny any citizen the equal protection of the laws, so that the Delaware Supreme Court did sustain the State's position that segregation per se is valid in the State of Delaware.
The cases of Plessy v. Ferguson and Gong Lum v. Rice, the Delaware Supreme Court said, are decisive of the question.
It is important in the approach to the question in our case, which is a very narrow one with respect to the form of the decree, if Your Honors please, that I read from portions of the opinion in order to demonstrate to this Court how the Delaware Supreme Court arrived at its decision. On page 43—and I am sorry that I cannot refer to a brief, but I can assure the Court that it will be fully covered—
It seems that I have a Herculean task to perform in attempting to add to what has already been presented for some eight hours of argument before this Court. But there are some points which I will only touch upon briefly since it has been so ably presented by counsel in all of the other cases that preceded mine for argument.
In this case, involving the State of Delaware, a petition for writ of certiorari and supporting brief was filed on November 13 of this year. The Delaware Supreme Court handed down its mandate on September 9, 1952, and certiorari was granted on November 24, 1952, the Court advising me that I would be permitted to file my brief not later than three weeks after argument, and I can assure the Court that the brief will be in before the three weeks are out.
Jurisdiction in this case is invoked under 28 United States Code, section 1257, paragraph 3. The validity of the Delaware constitutional provisions and the statutes invoked was challenged by the respondents. The pertinent provisions of the Delaware constitution and statute are as follows, section 1, Article 10 of the Constitution of the State of Delaware being as follows:
The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public schools, unless educated by other means.
Section 2. In addition to the income of the investments of the Public School Fund, the General Assembly shall make provision for the annual payment of not less than one hundred thousand dollars for the benefit of the free public schools which, with the income of the investments of the Public School Fund shall be equitably apportioned among the school districts of the State as the General Assembly shall provide; and the money so apportioned shall be used exclusively for the payment of teachers' salaries and for furnishing free textbooks; provided, however, that in such apportionment, no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained.
The statutory counterpart provides:
The State Board of Education is authorized, empowered, directed and required to maintain a uniform, equal and effective system of public schools throughout the State, and shall cause the provisions of this Chapter, the bylaws or rules and regulations and the policies of the State Board of Education to be carried into effect. The schools provided shall be of two kinds: those for white children and those for colored children.
The State contended that under our constitution and statutes, segregation in the public schools was lawful and not in violation of the equal protection clause of the Fourteenth Amendment, and that if inequalities were found to exist, any judgment in favor of the plaintiffs should be limited to an injunction directing the defendants to equalize the facilities within a reasonable time.
The Delaware Court of Chancery and the Delaware Supreme Court held that these provisions, insofar as they require segregation in the public schools based on race or color, do not offend against the provisions of the Fourteenth Amendment forbidding any state to deny any citizen the equal protection of the laws, so that the Delaware Supreme Court did sustain the State's position that segregation per se is valid in the State of Delaware.
The cases of Plessy v. Ferguson and Gong Lum v. Rice, the Delaware Supreme Court said, are decisive of the question.
It is important in the approach to the question in our case, which is a very narrow one with respect to the form of the decree, if Your Honors please, that I read from portions of the opinion in order to demonstrate to this Court how the Delaware Supreme Court arrived at its decision. On page 43—and I am sorry that I cannot refer to a brief, but I can assure the Court that it will be fully covered—
Page 43 of what?
Page 43 of the opinion, which will be found in the supplementary appendix of appellees—it is the blue-covered book —at the bottom of page 43, the supreme court said:
A detailed review of these cases is unnecessary since we are cited to no case holding to the contrary. They establish the principle that the constitutional guarantee of equal protection of the laws does not prevent the establishment by the state of separate schools for whites and Negroes, provided that the facilities afforded by the state to the one class are substantially equal to those afforded to the other—often referred to as the `separate but equal' doctrine. The question of segregation in the schools, under these authorities, is one of policy, and it is for the people of our state, through their duly chosen representatives, to determine what that policy shall be. When so determined, it must be given effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded . . .
The refusal of the Chancellor to enter the declaratory judgment prayed for was therefore, in our opinion, correct.
The Delaware Supreme Court, however, held that an injunction where an inequality is found to exist commanding the defendants to admit plaintiffs to the designated schools maintained for white children was required by the equal protection clause of the Fourteenth Amendment. The asserted conflict, the court held, of our constitutional and statutory provision with the equal protection clause of the Fourteenth Amendment was the sole basis for the judgment of the Delaware court upholding the type of relief that was granted.
A detailed review of these cases is unnecessary since we are cited to no case holding to the contrary. They establish the principle that the constitutional guarantee of equal protection of the laws does not prevent the establishment by the state of separate schools for whites and Negroes, provided that the facilities afforded by the state to the one class are substantially equal to those afforded to the other—often referred to as the `separate but equal' doctrine. The question of segregation in the schools, under these authorities, is one of policy, and it is for the people of our state, through their duly chosen representatives, to determine what that policy shall be. When so determined, it must be given effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded . . .
The refusal of the Chancellor to enter the declaratory judgment prayed for was therefore, in our opinion, correct.
The Delaware Supreme Court, however, held that an injunction where an inequality is found to exist commanding the defendants to admit plaintiffs to the designated schools maintained for white children was required by the equal protection clause of the Fourteenth Amendment. The asserted conflict, the court held, of our constitutional and statutory provision with the equal protection clause of the Fourteenth Amendment was the sole basis for the judgment of the Delaware court upholding the type of relief that was granted.
Mr. Attorney General, may I ask you whether I am to assume that the finding of the Chancellor on page 194a of your blue appendix, Folio 579—
What page is that?
193a, Folio 579.
If Your Honor please, the reason for the confusion in these things—
I will hand you mine.
Am I to assume that that is a finding which persisted through the decision of the Supreme Court of Delaware? I marked it.
Am I to assume that that is a finding which persisted through the decision of the Supreme Court of Delaware? I marked it.
I see, Your Honor.
No, Your Honor, because the supreme court held that that was not—if it was a finding, it was an irrelevant finding, and that it had—as a matter of fact, the decision was that segregation per se is valid in the State of Delaware, and that had no relevancy to the finding or the conclusion.
No, Your Honor, because the supreme court held that that was not—if it was a finding, it was an irrelevant finding, and that it had—as a matter of fact, the decision was that segregation per se is valid in the State of Delaware, and that had no relevancy to the finding or the conclusion.
To the finding. But that paragraph is in terms of a finding on the evidence as to what factors, whether any legal inference is to be drawn from it or not. You will notice the terms in which Your Chancellor stated that on the evidence—doesn't he say something about "on the evidence I find this is a fact"? Does that survive his modification of the decree by the supreme court?
It does not.
It does not?
It does not, Your Honor, and I will come to that in the course of my argument.
The Delaware Supreme Court held that the right to equal opportunity is a personal right; that the rights under the equal protection clause are personal and present, and for its authority relied on the cases about which so much was said during the course of the arguments here, the Gaines case, the Sipuel case, and the Sweatt case.
Those cases, however, did not involve a constitutional provision of a state. Furthermore, there was no showing in those cases that equal facilities could be provided in a reasonable time. There is quite a difference, I submit, between not being able to afford any facilities, and correcting certain disparities that exist, which would equalize the existing facilities and educational opportunities; and for that reason, I submit that the Chancellor and the supreme court, which affirmed the decree of the Chancellor, were in error.
Those cases, the Gaines case, the Sipuel case, and the Sweatt case, were not considered by the three-judge court in the Davis and Briggs cases as requiring any relief other than an injunction compelling the defendants to equalize the facilities and giving them a reasonable time to do so.
Now, this case involved two school districts. One is known as the Claymont School District, and the other the Hockessin School District.
In the Claymont School district, there is one high school, the Claymont High School, for white children only. There is also a high school in the city of Wilmington, some nine miles away, the Howard High School for Negro children. The plaintiff Belton, fifteen years of age and of high school age, attending the tenth grade and living in Claymont, was required to go to the Howard High School in the city of Wilmington. There are about 404 pupils in the Claymont High School and there are 1274 pupils in the Howard High School.
I would like to point out that with the Howard High School there is an annex some nine blocks away known as the Carver School, which is devoted primarily to vocational study.
This particular plaintiff, who went to Howard High School, took up typing and shorthand, and two afternoons a week would be required to go from Howard High School to Carver in order to take up those studies.
The plaintiffs contended that there was inequality. The State took the position that there was no inequality; that the curricula were the same or substantially the same; that the physical facilities were the same; that the teacher preparation was the same; and many other factors to show that there was equality. We also pointed out, if the Court please, that the Carver Annex, which was some nine blocks away from the Howard School, was to be abandoned, and that there were plans for its abandonment before the suit was even started, and that there was to be a consolidation at the Howard High School for Negro students with respect to its academic studies and vocational work.
The court found that there was disparity between the two schools, and they found that the disparity existed in some items, some factors, one being the gymnasium—not that the gymnasium at Howard High was not a good gymnasium—it was a fine gymnasium, but that it was overcrowded, and would be overcrowded because of the number of students attending.
They found that travel, not because of distance itself, made for inequality, but because the petitioner or the plaintiff had to go to Howard High, and then from Howard High had to walk the nine blocks to Carver, which, we contended, would be abandoned; and the court also found that the physical education classes were larger than they should be in order to afford proper and adequate instruction.
They also found disparity with respect to the playground at Carver—Carver, the annex that we said was going to be abandoned, and that we had admitted was inadequate; but because Carver had no playground, although Howard High had the opportunity to permit its pupils to go to a park which adjoined Howard High consisting of some ten acres, the fact that Carver had no playground was considered as one of the factors making for inequality, and, of course, it was held that the Carver building itself was wholly inadequate.
We contested these questions, but nevertheless we showed the court that the State had embarked upon a plan and program of improving the conditions in Howard High School, and we showed that Howard High School was going to be enlarged. We also showed that there was going to be a school built in the county, another school in Middletown for Negroes, which is not in the record. But I would like to say to the Court, it is about to be completed at a cost of L35 million dollars; and we were going to show that the students at the Howard High School in the junior high grades were going to be transferred to another school known as the Bancroft School, which is presently occupied and attended by white children, and that will be a school primarily for Negroes, so that the tension of overcrowding will be relieved at the Howard High School.
The court, in finding these items of disparity with respect to the Carver building, which it was not going to ignore, the fact that this was a building that we said we were going to abandon, and the fact that the gym was overcrowded, and the fact that there was this travel required by the plaintiff from Howard High to Carver, found that as to the allocation of public funds, there was equality of treatment; that as to the buildings proper they were the same; that as to accreditation, they were equal; that as to equipment and instruction material, they were equal; that the libraries were the same, with the library of Howard being larger; that the physical and mental health and nursing services at Howard, the colored school, were superior; and the court went on to say that the other differences were too insubstantial to find—to support a finding of inequality.
The other case had to do with an elementary school in what is known as Hockessin. School 107 is the school for colored children, a two-room school, having 44 pupils. Number 29 is a four-room school having 111 pupils. There are two teachers in 107; there are four teachers in 29. In that case, travel—with respect to travel, no bus transportation was provided the plaintiff, although there was bus transportation provided for white children.
In that case it was held that 107 receives equal or greater support now, and it did receive equal and greater support at the time of the hearing, although there was evidence that prior thereto the colored school did not receive equal support, which, perhaps, made for the disparity in the maintenance and upkeep of that particular school.
Both buildings—both are brick buildings; both are substantially contructed, so that the court in the case involving the elementary schools which have classes from the first grade to the sixth grade, held there was disparity in value, in upkeep, in exterior painting and floors, in toilet facilities, fire hazard, auditorium and custodial services.
We contend that these items making for disparity, as was found in the Delaware case, are such as can be readily corrected, and that the State should have been given the time, or the Board of Education should have been given the time, where there was this recognition of the "separate but equal" doctrine, in order to correct the inequalities that exist.
The defendants showed the court that there was under way in the City of Wilmington, as I stated before, a far-reaching program for the improvement of facilities in the Negro schools. As I said, the Carver School was to be abandoned. The junior high school pupils at the Howard School, that is, the Negro high school, were to be transferred to the Bancroft School so as to relieve it from crowding, and the Howard School was to be enlarged. There were to be new shops; the laboratories would be added, and the Bancroft School is to be a completely modern junior high school. All of these things were to be equalized, and will be equalized, by September of 1953, and the Middletown High School, as I indicated before, will be completed at a cost of 1.35 million dollars.
As to the form of the decree, the court enjoined the defendants from denying plaintiffs admittance to the two schools, retaining—
The Delaware Supreme Court held that the right to equal opportunity is a personal right; that the rights under the equal protection clause are personal and present, and for its authority relied on the cases about which so much was said during the course of the arguments here, the Gaines case, the Sipuel case, and the Sweatt case.
Those cases, however, did not involve a constitutional provision of a state. Furthermore, there was no showing in those cases that equal facilities could be provided in a reasonable time. There is quite a difference, I submit, between not being able to afford any facilities, and correcting certain disparities that exist, which would equalize the existing facilities and educational opportunities; and for that reason, I submit that the Chancellor and the supreme court, which affirmed the decree of the Chancellor, were in error.
Those cases, the Gaines case, the Sipuel case, and the Sweatt case, were not considered by the three-judge court in the Davis and Briggs cases as requiring any relief other than an injunction compelling the defendants to equalize the facilities and giving them a reasonable time to do so.
Now, this case involved two school districts. One is known as the Claymont School District, and the other the Hockessin School District.
In the Claymont School district, there is one high school, the Claymont High School, for white children only. There is also a high school in the city of Wilmington, some nine miles away, the Howard High School for Negro children. The plaintiff Belton, fifteen years of age and of high school age, attending the tenth grade and living in Claymont, was required to go to the Howard High School in the city of Wilmington. There are about 404 pupils in the Claymont High School and there are 1274 pupils in the Howard High School.
I would like to point out that with the Howard High School there is an annex some nine blocks away known as the Carver School, which is devoted primarily to vocational study.
This particular plaintiff, who went to Howard High School, took up typing and shorthand, and two afternoons a week would be required to go from Howard High School to Carver in order to take up those studies.
The plaintiffs contended that there was inequality. The State took the position that there was no inequality; that the curricula were the same or substantially the same; that the physical facilities were the same; that the teacher preparation was the same; and many other factors to show that there was equality. We also pointed out, if the Court please, that the Carver Annex, which was some nine blocks away from the Howard School, was to be abandoned, and that there were plans for its abandonment before the suit was even started, and that there was to be a consolidation at the Howard High School for Negro students with respect to its academic studies and vocational work.
The court found that there was disparity between the two schools, and they found that the disparity existed in some items, some factors, one being the gymnasium—not that the gymnasium at Howard High was not a good gymnasium—it was a fine gymnasium, but that it was overcrowded, and would be overcrowded because of the number of students attending.
They found that travel, not because of distance itself, made for inequality, but because the petitioner or the plaintiff had to go to Howard High, and then from Howard High had to walk the nine blocks to Carver, which, we contended, would be abandoned; and the court also found that the physical education classes were larger than they should be in order to afford proper and adequate instruction.
They also found disparity with respect to the playground at Carver—Carver, the annex that we said was going to be abandoned, and that we had admitted was inadequate; but because Carver had no playground, although Howard High had the opportunity to permit its pupils to go to a park which adjoined Howard High consisting of some ten acres, the fact that Carver had no playground was considered as one of the factors making for inequality, and, of course, it was held that the Carver building itself was wholly inadequate.
We contested these questions, but nevertheless we showed the court that the State had embarked upon a plan and program of improving the conditions in Howard High School, and we showed that Howard High School was going to be enlarged. We also showed that there was going to be a school built in the county, another school in Middletown for Negroes, which is not in the record. But I would like to say to the Court, it is about to be completed at a cost of L35 million dollars; and we were going to show that the students at the Howard High School in the junior high grades were going to be transferred to another school known as the Bancroft School, which is presently occupied and attended by white children, and that will be a school primarily for Negroes, so that the tension of overcrowding will be relieved at the Howard High School.
The court, in finding these items of disparity with respect to the Carver building, which it was not going to ignore, the fact that this was a building that we said we were going to abandon, and the fact that the gym was overcrowded, and the fact that there was this travel required by the plaintiff from Howard High to Carver, found that as to the allocation of public funds, there was equality of treatment; that as to the buildings proper they were the same; that as to accreditation, they were equal; that as to equipment and instruction material, they were equal; that the libraries were the same, with the library of Howard being larger; that the physical and mental health and nursing services at Howard, the colored school, were superior; and the court went on to say that the other differences were too insubstantial to find—to support a finding of inequality.
The other case had to do with an elementary school in what is known as Hockessin. School 107 is the school for colored children, a two-room school, having 44 pupils. Number 29 is a four-room school having 111 pupils. There are two teachers in 107; there are four teachers in 29. In that case, travel—with respect to travel, no bus transportation was provided the plaintiff, although there was bus transportation provided for white children.
In that case it was held that 107 receives equal or greater support now, and it did receive equal and greater support at the time of the hearing, although there was evidence that prior thereto the colored school did not receive equal support, which, perhaps, made for the disparity in the maintenance and upkeep of that particular school.
Both buildings—both are brick buildings; both are substantially contructed, so that the court in the case involving the elementary schools which have classes from the first grade to the sixth grade, held there was disparity in value, in upkeep, in exterior painting and floors, in toilet facilities, fire hazard, auditorium and custodial services.
We contend that these items making for disparity, as was found in the Delaware case, are such as can be readily corrected, and that the State should have been given the time, or the Board of Education should have been given the time, where there was this recognition of the "separate but equal" doctrine, in order to correct the inequalities that exist.
The defendants showed the court that there was under way in the City of Wilmington, as I stated before, a far-reaching program for the improvement of facilities in the Negro schools. As I said, the Carver School was to be abandoned. The junior high school pupils at the Howard School, that is, the Negro high school, were to be transferred to the Bancroft School so as to relieve it from crowding, and the Howard School was to be enlarged. There were to be new shops; the laboratories would be added, and the Bancroft School is to be a completely modern junior high school. All of these things were to be equalized, and will be equalized, by September of 1953, and the Middletown High School, as I indicated before, will be completed at a cost of 1.35 million dollars.
As to the form of the decree, the court enjoined the defendants from denying plaintiffs admittance to the two schools, retaining—
Your objection here, Mr. Attorney General, is as to the fitness of the decree with respect to immediacy?
Correct.
Your contention is that it should wait until later?
That is correct.
Will you address yourself as to why we should overrule the findings of the Chancellor?
Yes. The contention is that, based on the ground of the Chancellor and the Delaware Supreme Court, in affirming the Chancellor, did not interpret the cases upon which they relied, the Sipuel case and the Gaines case and the Sweatt case, in making a finding that unless they grant immediate relief it would be in violation of the equal protection clause of the Fourteenth Amendment.
May I refer to the portion of the opinion of the supreme court on page 63:
In affirming the Chancellor's order we have not overlooked the fact that the defendants may at some future date apply for a modification of the order if, in their judgment, the inequalities as between the Howard and Claymont schools or as between School No. 29 and School No. 107 have then been removed. As to Howard, the defendants, as above stated, assert that when the Howard-Carver changes are completed, equality will exist. The Chancellor apparently thought the contrary. We do not concur in his conclusion, since we think that that question, if it arises, is one which will have to be decided in the light of the facts then existing and applicable principles of the law. The Chancellor properly reserved jurisdiction of the cause to grant such further and additional relief as might appear appropriate in the future, and we construe this reservation to be a general reservation to any party to the cause to make an application to modify the order in any respect if and when changed conditions are believed to warrant such action.
May I refer to the portion of the opinion of the supreme court on page 63:
In affirming the Chancellor's order we have not overlooked the fact that the defendants may at some future date apply for a modification of the order if, in their judgment, the inequalities as between the Howard and Claymont schools or as between School No. 29 and School No. 107 have then been removed. As to Howard, the defendants, as above stated, assert that when the Howard-Carver changes are completed, equality will exist. The Chancellor apparently thought the contrary. We do not concur in his conclusion, since we think that that question, if it arises, is one which will have to be decided in the light of the facts then existing and applicable principles of the law. The Chancellor properly reserved jurisdiction of the cause to grant such further and additional relief as might appear appropriate in the future, and we construe this reservation to be a general reservation to any party to the cause to make an application to modify the order in any respect if and when changed conditions are believed to warrant such action.
Has this litigation had any effect upon other school districts in your State, Mr. Attorney General?
Well, I must speak outside the record.
Yes, that is my question.
As a matter of fact, that is the reason I am here now, because of the terrific impact upon the rest of the State by this decision.
Would not each district, whatever the units may be, call for a separate assessment of the conditions in that district, the way your court did here?
What it would mean, Your Honor, is that each case might involve litigation.
That is right.
And it would also prevent, perhaps, the legislators from voting for particular allotments for particular school districts, not knowing whether they can maintain the "separate but equal" phase of it or not.
I may be wrong, but I should assume that it is almost inevitable that the conditions in the various districts would not be identical, and therefore differentiation would be almost inevitable, and the claim that the two colored and white schools are not the same would almost inevitably be made, and it would have to be decided with proper reference to each set of circumstances.
I absolutely agree with you, sir; I absolutely agree, but what I contend is this: that in a state which recognizes the "separate but equal" doctrine, where inequalities exist, and it can be shown that those inequalities can be corrected, let us say overnight or within a week, to make an order that the Negro children shall be admitted into the white school is indirectly saying—abolishing segregation.
Am I to infer that you think that the thrust of the decision of the Supreme Court is that if inequity is shown, and this whole litigation is unlike the litigation in all the other records—that if inequality is shown, a decree must be issued at once, although it might be corrected overnight?
That is correct. That seems to be my feeling about it and my understanding of that opinion—that as long as inequality—
In other words, you are arguing on the assumption that that is what the opinion of your supreme court means?
Exactly.
How can you say that when you yourself, as I understood it, said that it would not be corrected until September 1, 1953?
That, Your Honor, went as far as the Claymont School, the high school, was concerned, where we said a new building had to be constructed. But in the Hockessin situation, a two-room school, where we could, perhaps within ten days, put on an additional room or improve the toilet facilities or those other things that Your Honor will note in the opinion, we feel that they can be corrected with dispatch.
So it is a problem of weighing the time it would take to make the corrections?
That is correct.
Even in the one that is not to be ready until 1953?
That is correct.
You take the position that that is an adequate time?
We think that is a reasonable time, as long as we have shown—
As long as there are facilities and institutions afforded?
Precisely; and as long as it is shown that we are willing and able to do it, and that there is every reason to believe that it will be done, the "separate but equal" doctrine being recognized by the court—there should be no immediacy for the entrance of those Negro pupils into the white schools.
Has litigation of this type reached your supreme court in the last five or ten years?
This is the first in the history of the State.
Do I understand that the inequality is largely a matter of overcrowding, relative overcrowding?
I want to differentiate between the two cases.
Yes.
In the Claymont High School, they claimed it was due to overcrowding, not in the school entirely, but only in physical education classes.
Has there been a shift of population? That is, have you had a migration which has occurred since the war, with war industries?
Well, we have some, yes.
You have some.
But I do not know whether we can attribute too much to that. But the fact is that the Howard High School had both the junior and the senior pupils there, and the fact that we are taking those pupils away from the Howard High School into this other school will certainly correct this situation.
But apparently the Delaware Supreme Court seemed to term this inequality only as to the overcrowding in a particular class, which did not make for proper instruction in physical education; but it seemed to hold that as to all other classes the difference in size between 25 pupils in white schools and 30 or 31 or 32 in classes in the colored schools did not make for inequality so as to affect educational opportunity or instruction.
The State contends that where disparity exists, under the equal protection clause of the Fourteenth Amendment, the rights of Negro children are protected by a decree compelling school administrators to equalize the facilities in the segregated schools involved where a state constitutional provision makes mandatory the maintenance of separate schools for white and colored children, and where school administrators have reasonably shown that the existing inequality can and probably will be corrected within a reasonable time.
So the court of chancery, of course, sat as a court of equity, and the form of the decree, we contend, violates the fundamental equitable principles as laid down in Eccles v. Peoples Bank. In that case the court said:
It is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief.
There was no showing that the State could not equalize or that it was unwilling to equalize, and the effect of the decree is demoralizing to the Negro pupils as well as to the white pupils, to the teachers, to the State Board of Education. There is no permanency, there is no stability, as one of the counsel mentioned during the course of the argument in the Virginia case.
The decree in its present form, which says that the Negro children shall be permitted to go to the white school and that the Board of Education may come in next week, next month, and modify the decree, would result in shunting those Negro children back and forth. There would be no stability, there would be no permanency. I would rather if the court had said that segregation per se is bad: "Let the Negro children go to the white schools."
But apparently the Delaware Supreme Court seemed to term this inequality only as to the overcrowding in a particular class, which did not make for proper instruction in physical education; but it seemed to hold that as to all other classes the difference in size between 25 pupils in white schools and 30 or 31 or 32 in classes in the colored schools did not make for inequality so as to affect educational opportunity or instruction.
The State contends that where disparity exists, under the equal protection clause of the Fourteenth Amendment, the rights of Negro children are protected by a decree compelling school administrators to equalize the facilities in the segregated schools involved where a state constitutional provision makes mandatory the maintenance of separate schools for white and colored children, and where school administrators have reasonably shown that the existing inequality can and probably will be corrected within a reasonable time.
So the court of chancery, of course, sat as a court of equity, and the form of the decree, we contend, violates the fundamental equitable principles as laid down in Eccles v. Peoples Bank. In that case the court said:
It is always the duty of a court of equity to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief.
There was no showing that the State could not equalize or that it was unwilling to equalize, and the effect of the decree is demoralizing to the Negro pupils as well as to the white pupils, to the teachers, to the State Board of Education. There is no permanency, there is no stability, as one of the counsel mentioned during the course of the argument in the Virginia case.
The decree in its present form, which says that the Negro children shall be permitted to go to the white school and that the Board of Education may come in next week, next month, and modify the decree, would result in shunting those Negro children back and forth. There would be no stability, there would be no permanency. I would rather if the court had said that segregation per se is bad: "Let the Negro children go to the white schools."
Whereupon, a luncheon recess was taken.
AFTERNOON SESSION
Mr. Justice Frankfurter, you asked me whether the Chancellor's finding on the evidence that segregation produces detrimental results so far as educational opportunities are concerned, if it is applied—and I call the Court's attention to the opinion of the Supreme Court of Delaware on page 44, beginning with the third paragraph:
It is said that the uncontradicted evidence adduced by the plaintiffs shows that state-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the `separate but equal' doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it.
It is said that the uncontradicted evidence adduced by the plaintiffs shows that state-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the `separate but equal' doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it.
Therefore, it is not before us.
That is right.
But does that necessarily follow? They did not set it aside, so that you have a finding of your Chancellor so far as segregation is concerned in Delaware that the result of it is the affording of an inferior opportunity of education, and your supreme court says that nevertheless the Supreme Court of the United States, in effect, has held that that can never be a constitutional ground.
So did the Chancellor, Your Honor.
But you still have your finding that, so far as Delaware is concerned—and I presume he was not looking at evidence anywhere but Delaware—that the system of segregation there, even though the facilities, physical facilities, are equal, results in inferior education for them.
He did so state.
We have that finding without its being set aside.
Well, I think we have it, in effect, set aside when the supreme court says that he considered it immaterial to the conclusion in his case and the decision in his case.
That is right. He considered it immaterial; but nevertheless, are we not faced with this situation: Do you conceive that segregation might be held on evidence in some places to supply equal opportunities for education, while in other it might be held that the situation was such that it gave an inferior opportunity for education?
Depending on the facilities offered, and the educational opportunities.
I mean assuming that the facilities are the same—
Yes.
—do you conceive that it is impossible for segregation in one place to result in an equality of opportunity of education, while in another it might result in inequality of opportunity for education?
No, I cannot conceive of that myself.
Now, it may be that—
Now, it may be that—
There might be many things involved, might there not?
That is true, but I am not prepared to say whether, all factors being equal, mere segregation of and by itself will bring about inferiority so far as educational opportunities are concerned.
Well, assuming that you had facts, and that your court found on the facts that in Delaware, where your two schools functioned, and with the general conditions of education in Delaware and the relationship between the races and all of that was such that even though the facilities were identical—physical facilities—nevertheless, in Delaware, the results of segregation were to give an unequal opportunity of education to the colored people. Would you say that, assuming that finding on local facts, and it is accepted, that the separate but equal doctrine would not make it necessary to state that?
I would not, if Your Honor please, under our constitution and its statutory counterpart—we are required to maintain separate schools for white and colored as long as we afford them equal opportunities and equal facilities, and I think that that would merely be an oblique way of striking down segregation and desegregating schools.
If you assume that the facts are correctly found. Suppose I asked you to assume that the court found those facts, and assume that he is right, and you had no way to overturn them. He would say that conditions in Delaware—given consideration on the facts—require him to see whether or not the colored people get an equal opportunity for education.
Now, I find that they do so far as the physical results are concerned, but I am led to the conclusion from the evidence and find from the evidence that they do not because the relationship that exists here, and by reason of the manner of the going to school, and the mixture in other places and so forth—I find that the effect on the children is that they get an inferior opportunity for education.
Would you say that that would still not bring them within the "separate but equal" doctrine?
Now, I find that they do so far as the physical results are concerned, but I am led to the conclusion from the evidence and find from the evidence that they do not because the relationship that exists here, and by reason of the manner of the going to school, and the mixture in other places and so forth—I find that the effect on the children is that they get an inferior opportunity for education.
Would you say that that would still not bring them within the "separate but equal" doctrine?
I would, Your Honor. I would because I say that would be violative of the equal protection clause of the Fourteenth Amendment, and would also be violative of our own constitutional provisions, because we are assuming now facilities being equal, educational opportunities being equal; I would like to say I do not know what evidence Your Honor is referring to that the chancellor could rely on, other than the sociologists and anthropologists and psychologists.
I just read the findings, and I asked you the question at the beginning of these arguments, you may remember.
I remember.
About the difference in findings, and I wondered—both sides seem to be relying on the findings so much, and I wondered if the assumption we must make from that is that both sides believe that it could be found in one state and one locality by reason of a different situation that opportunities were unequal, even though the facilities were equal, while in another state that would not be the case.
I do not subscribe to that, Your Honor.
Mr. Attorney General, since I got you into this trouble, perhaps I might help straighten out the way the matter lies in my mind. I had not read that sentence to which you called attention in the opinion of the supreme court. I think for myself this situation is very different from the Kansas situation. In the Kansas situation, we have a finding of fact similar to the finding made by your Chancellor, and the court said that finding does not bear on the legal question; namely, that the State has power to segregate, no matter what the psychological consequences may be, and that is what your Chancellor found.
As I understand it myself, when your supreme court came to review the decision of the Chancellor, it said that, inasmuch as his finding of fact is irrelevant, it was not going to review it. Therefore, we have a finding of an inferior court specifically not reviewed by the highest court of the State.
The Chancellor found that on his appraisal of the evidence—insofar as I am concerned, it may well be that your supreme court might not have reached that conclusion, and might not have weighed the evidence that the Chancellor did, and therefore we have not got, for myself, in this case, what we have in the Kansas case, a finding of fact which binds us, because for all I know your supreme court might have disagreed with your Chancellor, and then we would be in a position where the highest court said that the evidence does not yield to the conclusions that the Chancellor thought it yielded.
As I understand it myself, when your supreme court came to review the decision of the Chancellor, it said that, inasmuch as his finding of fact is irrelevant, it was not going to review it. Therefore, we have a finding of an inferior court specifically not reviewed by the highest court of the State.
The Chancellor found that on his appraisal of the evidence—insofar as I am concerned, it may well be that your supreme court might not have reached that conclusion, and might not have weighed the evidence that the Chancellor did, and therefore we have not got, for myself, in this case, what we have in the Kansas case, a finding of fact which binds us, because for all I know your supreme court might have disagreed with your Chancellor, and then we would be in a position where the highest court said that the evidence does not yield to the conclusions that the Chancellor thought it yielded.
That is precisely the point, Your Honor, and what is more, a review of the opinion would show that the Delaware Supreme Court did not agree with many things that the Chancellor said in his opinion in the lower court.
Yes. The legal position that you take is on the assumption that was presented by the Kansas case. I think that your record presents a different set of facts.
Exactly. There was no finding of fact that was considered at all. It was considered immaterial to the issue.
A very powerful finding by the Chancellor.
Oh, yes.
I do not like to interrupt again, but taking that as true, if we assume and admit such a finding is relevant, you would be in a situation of having a finding by your Chancellor which is relevant, which might cause the case to turn one way or the other, which has not been reviewed by your highest court.
That is right. But there is one thing I want to make plain: that notwithstanding that finding, and notwithstanding the fact that it was disregarded by the supreme court, I nevertheless address Your Honor's attention to the point that the shape of the decree, in any event, was not a proper decree under the circumstances, even if that were so.
Let us assume that were so, and it just desegregated the schools; nevertheless, the form of the decree being in conflict with the other jurisdiction, was not a proper decree, taking into account the needs and the relief to be granted, and the public interest involved.
This Court, as I contend, is not exercising—it was not a question of abuse of discretion, and it is not a matter of administration nor a matter of enforcing the injunction.
Both courts, my position is, said that under and only by reason of the Fourteenth Amendment was it justified to make the kind of decree it did.
The decree in the court below, while asserting that the plaintiffs were entitled to relief, made no attempt to assess the effect of its decree on the defendants, on the children and their parents, both white and colored, in the school districts affected. No consideration was given to the ability of the defendants to equalize the facilities involved within a reasonable time; no consideration was given to the effect of a possible later decree based on changing circumstances; no consideration was given to the effect of the decree on the school administrators who would be faced with the problem of determining how and where to enroll children in the various school districts in the State. No consideration was given to the effect of the decree on the public generally and on the legislature in planning for the future, in allocating funds for the maintenance and construction of school facilities.
The court below stated that the plaintiffs' rights were personal and present, and this does not necessarily mean that they are entitled immediately to admittance to the schools maintained for white children only. The plaintiffs' rights are given full consideration when the court orders the defendants to proceed forthwith to make the facilities of the respective schools equal.
In this case, too, I am grateful to the Attorney General for his brief, and in his amicus curiae brief on page 28 I would like the Court to take note of what he said:
If, in any of the present cases, the Court should hold that to compel colored children to attend `separate but equal' public schools is unconstitutional, the Government would suggest that in shaping the relief the Court should take into account the need, not only for prompt vindication of the constitutional rights violated, but also for orderly and reasonable solution of the vexing problems which may arise in eliminating such segregation. The public interest plainly would be served by avoidance of needless dislocation and confusion in the administration of the school systems affected. It must be recognized that racial segregation in public schools has been in effect in many states for a long time. Its roots go deep in the history and traditions of these states. The practical difficulties which may be met in making progressive adjustments to a nonsegregated system cannot be ignored or minimized.
Let us assume that were so, and it just desegregated the schools; nevertheless, the form of the decree being in conflict with the other jurisdiction, was not a proper decree, taking into account the needs and the relief to be granted, and the public interest involved.
This Court, as I contend, is not exercising—it was not a question of abuse of discretion, and it is not a matter of administration nor a matter of enforcing the injunction.
Both courts, my position is, said that under and only by reason of the Fourteenth Amendment was it justified to make the kind of decree it did.
The decree in the court below, while asserting that the plaintiffs were entitled to relief, made no attempt to assess the effect of its decree on the defendants, on the children and their parents, both white and colored, in the school districts affected. No consideration was given to the ability of the defendants to equalize the facilities involved within a reasonable time; no consideration was given to the effect of a possible later decree based on changing circumstances; no consideration was given to the effect of the decree on the school administrators who would be faced with the problem of determining how and where to enroll children in the various school districts in the State. No consideration was given to the effect of the decree on the public generally and on the legislature in planning for the future, in allocating funds for the maintenance and construction of school facilities.
The court below stated that the plaintiffs' rights were personal and present, and this does not necessarily mean that they are entitled immediately to admittance to the schools maintained for white children only. The plaintiffs' rights are given full consideration when the court orders the defendants to proceed forthwith to make the facilities of the respective schools equal.
In this case, too, I am grateful to the Attorney General for his brief, and in his amicus curiae brief on page 28 I would like the Court to take note of what he said:
If, in any of the present cases, the Court should hold that to compel colored children to attend `separate but equal' public schools is unconstitutional, the Government would suggest that in shaping the relief the Court should take into account the need, not only for prompt vindication of the constitutional rights violated, but also for orderly and reasonable solution of the vexing problems which may arise in eliminating such segregation. The public interest plainly would be served by avoidance of needless dislocation and confusion in the administration of the school systems affected. It must be recognized that racial segregation in public schools has been in effect in many states for a long time. Its roots go deep in the history and traditions of these states. The practical difficulties which may be met in making progressive adjustments to a nonsegregated system cannot be ignored or minimized.
I asked a question similar to this before. Why do you contend that that is a problem here? Is it a violation of the federal law or a violation of the Federal Constitution that the Delaware Supreme Court has acted somewhat precipitately, from your point of view?
It is because, Your Honor, we contend that the supreme court, affirming the Chancellor who acted in this matter, in shaping the form of the decree, said that he was compelled to make that kind of a decree under the equal protection clause of the Fourteenth Amendment. It was not a question of exercising discretion; in fact, it negated that proposition.
If, for example, he would reach the same result by saying that he is exercising his discretion, perhaps we would have another matter. But he said he was compelled to issue that kind of a decree under the equal protection clause of the Fourteenth Amendment.
If, for example, he would reach the same result by saying that he is exercising his discretion, perhaps we would have another matter. But he said he was compelled to issue that kind of a decree under the equal protection clause of the Fourteenth Amendment.
Is that because the right is personal?
Because the right is personal, and depending upon the cases of Sweatt and the Gaines case; and, of course, we differentiate between those cases, cases where there was no facility; there was no expectancy of any facility within a reasonable time, as compared with a case where there is the ability and the willingness to equalize.
It is difficult for me to grasp what the state court of Delaware was saying when it said it was not acting within its discretion.
Well, the supreme court pointed out in its opinion and stated that they were relying solely—
It is on page 44.
On page 57 the court cast aside—the Delaware Supreme Court—two preliminary matters upon which, perhaps, the injunction could have been or the decree could have been handed down, but said:
But we prefer to rest our decision upon another ground. With deference to the decisions in the Briggs and Davis cases, which we have carefully examined and considered, we cannot reconcile the denial of prompt relief with the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal protection of the laws is a `personal and present' one, how can these plaintiffs be denied such relief as is now available? The commendable effort of the State to remedy the situation serves to emphasize the importance of the present inequalities.
But we prefer to rest our decision upon another ground. With deference to the decisions in the Briggs and Davis cases, which we have carefully examined and considered, we cannot reconcile the denial of prompt relief with the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal protection of the laws is a `personal and present' one, how can these plaintiffs be denied such relief as is now available? The commendable effort of the State to remedy the situation serves to emphasize the importance of the present inequalities.
I think you will find some language in the Sipuel case, if I remember rightly, about "personal and present."
Yes.
That was the admission into the school in Oklahoma. I think that language is in the Sipuel case.
That is right.
I mean "personal and present."
Well, there it was proper, I state, because there is quite a distinction between higher education and facilities that can or cannot be offered on a higher educational level as compared with the common school level; and the court—our contention is that the lower court, the inferior court, the court of chancery—was in error when it thought that it was compelled to issue the kind of decree it did without giving any regard to the public interest and to the parties involved.
Your court says in the opinion:
To require the plaintiffs to wait another year—
I am reading at page 58—
To require the plaintiffs to wait another year—
I am reading at page 58—
Yes.
—under present conditions would be in effect partially to deny them that to which we have held they are entitled. It is possible that a case might occur in which completion of equalization of facilities might be so imminent as to justify a different result, but we do not pass on that question because it is not presented.
Whether that is discretion—your position is that they are bound under the Sipuel case to give immediate relief; they thought they were bound to give immediate—
Yes, they thought they were bound. MR. JUSTICE REED: To give immediate relief.
Yes, that is correct.
In the light of what I have read from the amicus curiae brief, when it was urged that the Court should be slow in desegregating even where segregation per se was held to be invalid, our contention is that the fact that it is even more serious where the "separate but equal" doctrine is held to be valid, and where it is recognized that the State, upon a showing that any existing inequality relating to facilities and educational opportunities is capable of being corrected within a reasonable time, for a court to compel the immediate amalgamation of Negroes and whites in the same school, and then later, upon a showing of equalization, again separate the Negro children from the white school—a decree requiring the defendants to equalize the facilities within a reasonable time would give the plaintiffs relief as quickly as practicable, consistent with an orderly administration of the school system and a specific adjustment of inequalities where such inequalities have been found to exist in the past.
The same situation occurred in the Virginia case and also in the South Carolina case, perhaps not with the finding that Your Honors find to exist in the opinion of the Chancellor in the lower court, but I believe that the language of—
In the light of what I have read from the amicus curiae brief, when it was urged that the Court should be slow in desegregating even where segregation per se was held to be invalid, our contention is that the fact that it is even more serious where the "separate but equal" doctrine is held to be valid, and where it is recognized that the State, upon a showing that any existing inequality relating to facilities and educational opportunities is capable of being corrected within a reasonable time, for a court to compel the immediate amalgamation of Negroes and whites in the same school, and then later, upon a showing of equalization, again separate the Negro children from the white school—a decree requiring the defendants to equalize the facilities within a reasonable time would give the plaintiffs relief as quickly as practicable, consistent with an orderly administration of the school system and a specific adjustment of inequalities where such inequalities have been found to exist in the past.
The same situation occurred in the Virginia case and also in the South Carolina case, perhaps not with the finding that Your Honors find to exist in the opinion of the Chancellor in the lower court, but I believe that the language of—
The language can be found in the Virginia case, can it not?
Not that particular finding that segregation of and by itself under the evidence is harmful. I think that they did—
They had findings there that it was not equal.
That it was not equal, that is correct; and I believe there was some comment, as I recall, that whether it does harm or does not do harm is not for the Court to determine. But this is what Judge Parker had to say in disposing of the case, the South Carolina case:
It is argued that, because the school facilities furnished Negroes in District No. 22 are inferior to those furnished white persons, we should enjoin segregation rather than direct the equalizing of conditions. Inasmuch as we think that the law requiring segregation is valid, however, and that the inequality suffered by plaintiffs results, not from the law, but from the way it has been administered, we think that our injunction should be directed to removing the inequalities resulting from administration within the framework of the law rather than to nullifying the law itself. As a court of equity, we should exercise our power to assure to plaintiffs the equality of treatment to which they are entitled with due regard to the legislative policy of the State. In directing that the school facilities afforded Negroes within the district be equalized promptly with those afforded white persons, we are giving plaintiffs all the relief that they can reasonably ask and the relief that is ordinarily granted in cases of this sort.
The Court, as it was said in the Briggs case, should not use its power to abolish segregation in a State where it is required by the constitution and laws of the State if the equality demanded by the Constitution can be attained otherwise. This much, the court went on to say, is demanded by the spirit of comity which must prevail in the relationship between the agencies of the Federal Government and the State if our constitutional system is to endure.
What we ask in this case is that the Delaware Supreme Court's judgment be reversed and that the Delaware Supreme Court be instructed that affording reasonable time for the board of education to correct inequalities capable of being corrected, as we have shown, is not in violation of the Fourteenth Amendment.
It is argued that, because the school facilities furnished Negroes in District No. 22 are inferior to those furnished white persons, we should enjoin segregation rather than direct the equalizing of conditions. Inasmuch as we think that the law requiring segregation is valid, however, and that the inequality suffered by plaintiffs results, not from the law, but from the way it has been administered, we think that our injunction should be directed to removing the inequalities resulting from administration within the framework of the law rather than to nullifying the law itself. As a court of equity, we should exercise our power to assure to plaintiffs the equality of treatment to which they are entitled with due regard to the legislative policy of the State. In directing that the school facilities afforded Negroes within the district be equalized promptly with those afforded white persons, we are giving plaintiffs all the relief that they can reasonably ask and the relief that is ordinarily granted in cases of this sort.
The Court, as it was said in the Briggs case, should not use its power to abolish segregation in a State where it is required by the constitution and laws of the State if the equality demanded by the Constitution can be attained otherwise. This much, the court went on to say, is demanded by the spirit of comity which must prevail in the relationship between the agencies of the Federal Government and the State if our constitutional system is to endure.
What we ask in this case is that the Delaware Supreme Court's judgment be reversed and that the Delaware Supreme Court be instructed that affording reasonable time for the board of education to correct inequalities capable of being corrected, as we have shown, is not in violation of the Fourteenth Amendment.
Mr. Attorney General, may I trouble you again? Has the supreme court, your supreme court in terms, not as a necessary consequence of what it has decided but has your supreme court in terms taken the position that if the Chancellor finds inequality then the immediate opening of the doors of schools of whites who have no segregation in schools is legal compulsion?
That is, we contend, the position the supreme court took.
Has it taken that in terms? Here is what troubles me. It is asking a great deal of this Court, for one-ninth of this Court, to overrule the judgment of the Chancellor, affirmed by the supreme court of the State, that the equity of the situation requires the decree that they entered. If they base that on their interpretation of what the decisions of this Court require, then it was not the Chancellor's exercise of discretion, but it was a result caused by the requirement that they must follow the decisions of the Court. As I read their opinions, they did not say that in terms, did they?
No, but the general mandate, it would seem to me the blanket mandate, in affirming the judgment of the court or chancery or the Chancellor—
Did the Chancellor think that was the thing to do?
He thought so, yes.
That as soon as inequality is shown, then at once there must be—
That is right.
How could he? We did not do that in one of the cases.
We tried to point out to the Chancellor that he was wrong, and we tried to point out to the Chancellor that that was not so.
The question is whether he was wrong or what rule of law did he apply. If he said that in this situation, considering the circumstances in Delaware, your county or school district—or he may not have been explicit about it—that is one thing. If he says that the Supreme Court demands, "and I am an obedient judge," that is another thing.
He said where there is an injury, as he found such to be here, then the injury should be redressed immediately.
Well, that may be his view as an equity judge.
But he based it on the equal protection clause of the Fourteenth Amendment.
If I may say so, a chancellor who shows as much competence as this opinion shows probably can read the opinions of this Court with understanding.
There is no question about the Chancellor's competency, Your Honor.
If I may say so, it was an unusual opinion, as opinions go.
May I read from just the opinion of the Chancellor on page 203, at the bottom of the page:
Just what is the effect of such a finding of a violation of the Constitution, as has here been made. It is true that in such a situation some courts have merely directed the appropriate state officials to equalize facilities. I do not believe that such is the relief warranted by a finding that the United States Constitution has been violated. It seems to me that when a plaintiff shows to the satisfaction of a court that there is an existing and continuing violation of the `separate but equal' doctrine, he is entitled to have made available to him the state facilities which have been shown to be superior. To do otherwise is to say to such a plaintiff: `Yes, your constitutional rights are being invaded, but be patient, we will see whether in time they are still being violated.'
Now, Judge Parker had that problem before him in the South Carolina case, and the same problem was there in the Virginia case. But is it a violation that is going to continue upon a showing that we, the State, are able and willing to correct the existing inequalities between the two races?
Just what is the effect of such a finding of a violation of the Constitution, as has here been made. It is true that in such a situation some courts have merely directed the appropriate state officials to equalize facilities. I do not believe that such is the relief warranted by a finding that the United States Constitution has been violated. It seems to me that when a plaintiff shows to the satisfaction of a court that there is an existing and continuing violation of the `separate but equal' doctrine, he is entitled to have made available to him the state facilities which have been shown to be superior. To do otherwise is to say to such a plaintiff: `Yes, your constitutional rights are being invaded, but be patient, we will see whether in time they are still being violated.'
Now, Judge Parker had that problem before him in the South Carolina case, and the same problem was there in the Virginia case. But is it a violation that is going to continue upon a showing that we, the State, are able and willing to correct the existing inequalities between the two races?