Judges are not supposed to violate the law, to constitute themselves

a super-legislature, to plunge beyond the bounds of the Constitution

itself. And no body of critics has said this more frequently than the

judges themselves.

In the famous case of _United States_ v. _Butler_, (297 U. S. 1),

holding that the Agricultural Adjustment Act of 1935 exceeded the

power vested in the Congress to regulate commerce, the Supreme

Court divided violently--but both the majority and the minority, in

their discussions of judicial power and responsibility, made the

same points. “The only power the court has,” said the majority, “if

such it may be called, is the power of judgment. This court neither

approves nor condemns any legislative policy. Its delicate and

difficult office is to ascertain and declare whether the legislation

is in accordance with, or in contravention of, the provisions of the

Constitution; and, having done that, its duty ends.” Harlan Stone,

in the magnificent dissent in which Brandeis and Cardozo joined,

expressed the responsibility of the court in this fashion:

The power of courts to declare a statute unconstitutional is

subject to two guiding principles of decision which ought never

to be absent from judicial consciousness. One is that courts are

concerned only with the power to enact statutes, not with their

wisdom. The other is that while unconstitutional exercise of power

by the executive and legislative branches of the government is

subject to judicial restraint, the only check upon our own exercise

of power is our own sense of self-restraint. For the removal of

unwise laws from the statute books, appeal lies not to the courts

but to the ballot and to the processes of democratic government.

Did the Supreme Court, in the _School Segregation Cases_, have

the power to abolish segregation by placing its own contemporary

construction on the Fourteenth Amendment? By casting aside Stone’s

“sense of self-restraint,” and by substituting their own notions of

what was right for the plain history of what was constitutional,

the judges could assume that naked power. In the end, that was what

they did--in violation of precepts they themselves had pronounced

eloquently in other cases.

Mr. Justice Black, for example, was solidly on the side of judicial

tradition in 1946, in _Morgan_ v. _Virginia_ (328 U. S. 373). The

question was whether a Virginia law, requiring separate seats for

white and colored passengers on buses, placed an unconstitutional

burden on interstate commerce. A majority of the court thought it

did, but Black, though he agreed entirely with the result of the

majority’s ruling, protested strongly that the power to regulate

commerce was a power vested in the Congress and not in the courts.

Yet in a series of cases, the court had nullified State laws just

as it was nullifying Virginia’s enactment in the _Morgan_ case.

“I thought then, and still believe,” said Black, “that in these

cases the court was assuming the role of a ‘super-legislature’ in

determining matters of governmental policy.” Where was Mr. Justice

Black in May 1954?

Mr. Justice Frankfurter has expounded many times upon the obligation

upon the court never to exceed its judicial powers. The question in

_Board of Education_ v. _Barnette_ (319 U. S. 634), was whether West

Virginia could compel its public school children to salute the flag.

Five times, the Supreme Court had held that such a requirement was

not in violation of the Constitution. Now, in 1943, with the shift

of two justices, the holding was reversed. Frankfurter’s eloquent

dissent provides a moving statement of the philosophy by which judges

should be guided in contemplating their judicial power:

One who belongs to the most vilified and persecuted minority in

history is not likely to be insensible to the freedoms guaranteed

by our Constitution. Were my purely personal attitude relevant,

I should wholeheartedly associate myself with the general

libertarian views in the court’s opinion, representing as they

do the thought and action of a lifetime. But as judges we are

neither Jew nor Gentile, neither Catholic nor agnostic. We owe

equal attachment to the Constitution and are equally bound by our

judicial obligations whether we derive our citizenship from the

earliest or the latest immigrants to these shores. As a member of

this court I am not justified in writing my private notions of

policy into the Constitution, no matter how deeply I may cherish

them or how mischievous I may deem their disregard.... It can never

be emphasized too much that one’s own opinion about the wisdom or

evil of a law should be excluded altogether when one is doing one’s

duty on the bench. The only opinion of our own even looking in that

direction that is material is our opinion whether legislators could

in reason have enacted such a law.

Much as he detested the West Virginia statute, Frankfurter found it

impossible to deny that reasonable legislators could have passed the

flag-salute law. He was guided to this conclusion by “the light of

all the circumstances” and by “the history of this question in this

court.” Thirteen Justices of the Supreme Court in other years had

found such laws within the constitutional authority of the States. In

view of this “impressive judicial sanction,” how could the power be

now prohibited to the States? In the past, said Frankfurter:

this court has from time to time set its views of policy against

that embodied in legislation by finding laws in conflict

with what was called “the spirit of the Constitution.” Such

undefined destructive power was not conferred on this court by

the Constitution. Before a duly enacted law can be judicially

nullified, it must be forbidden by some explicit restriction upon

political authority in the Constitution. Equally inadmissible is

the claim to strike down legislation because to us as individuals

it seems opposed to the “plan and purpose” of the Constitution.

That is too tempting a basis for finding in one’s personal views

the purposes of the Founders.

The uncontrollable power wielded by this court brings it very

close to the most sensitive areas of public affairs. As appeal

from legislation to adjudication becomes more frequent, and its

consequences more far-reaching, judicial self-restraint becomes

more and not less important, lest we unwarrantably enter social and

political domains wholly outside our concern.

What had become of these views on the part of Mr. Justice Frankfurter

in May 1954? By that time, not merely thirteen Justices, but more

than thirty members of the court over a period of fifty-eight years

had upheld the constitutionality of racially separate schools. More

impressive judicial sanction scarcely could be imagined. And what

is to be said of an opinion, in a highly sensitive area of public

affairs, not even rationalized by “the spirit of the Constitution” or

the “plan and purpose” of the Constitution, but rather by “the effect

of segregation on public education” and “the extent of psychological

knowledge”? These provided the rationale of the _Brown_ decision, but

Mr. Justice Frankfurter did not open his mouth in dissent.

Did the court have the power to do what it did? Mr. Justice Douglas,

another of the nine, in other days had warned that long-run stability

is best achieved when social and economic problems of the State and

nation are kept under political management of the people. Writing in

_49 Columbia Law Review_ some years ago, he observed sagely that “it

is when a judiciary with life tenure seeks to write its social and

economic creed into the Charter that instability is created.” In May

1954, Mr. Justice Douglas did his bit to create just that instability.

Did the court have the power? That was the essence of Question 3. It

was the court’s most profound inquiry, for it probed the very soul

of judicial limitation and responsibility. Serious consideration

of Question 3 would have required of the judges a respect for the

wisdom and integrity of scores of judges and hundreds of State and

Federal legislators, all equally sworn to uphold the Constitution,

who had preceded them. The question should have suggested the utmost

restraint, the most selfless exercise of judicial discipline. “Is it

within the judicial power, in construing the amendment, to abolish

segregation in public schools?”

“What is truth?” said jesting Pilate; and would not stay for an

answer.

VI

The _School Segregation Cases_ came up for reargument before the

Supreme Court on December 8, 1953. By this time, the Kansas case was

moot (it is one of the many ironies of the story that the school

cases should be styled as _Brown_ v. _Board of Education of Topeka_,

taking their name from a controversy that had been settled by the

time the opinion came down), but the cases from Virginia, South

Carolina, and Delaware were still hotly at issue. The cast of lawyers

was the same, and again, questions from the bench seemed to indicate

a continuing division within the court.

Counsel for the Negro plaintiffs, grappling with Question 1,

attempted to show that the Fourteenth Amendment was intended by its

framers and adopters to have a “broad, general scope.” John W. Davis

and T. Justin Moore, carrying the brunt of argument for the South,

relied upon the more tangible history of what actually happened in

terms of racially separate schools. Davis placed particular emphasis

upon the action of the Southern States in creating separate school

systems, without objection from Congress, even as they ratified the

amendment. Sumner and his fellow radicals might not have wanted to

challenge such Northern allies as Pennsylvania and Ohio, but “if

there were any place where sponsors of the amendment would have blown

the bugle for mixed schools, surely it would have been in those eight

States of Reconstruction legislation.”

Frankfurter kept asking the various attorneys to explain why the

Congress itself never had adopted legislation to prohibit the States

from maintaining racially separate schools. Defense counsel said the

Congress had no power to do so; attorneys for the Negro plaintiffs

said Congress had the power, but opponents of segregation never had

had the votes. Frankfurter put an embarrassing question to J. Lee

Rankin, who as Assistant Attorney General had joined forces with the

NAACP. “Realistically,” Frankfurter suggested, “the reason this case

is here is that action couldn’t be attained from Congress. Certainly

it would be much stronger from your point of view if Congress had

acted, wouldn’t it?”

Rankin agreed, but insisted that the court could achieve the desired

end by judicial pronouncement as well as the Congress could achieve

it by legislative action. Frankfurter persisted, taking judicial

notice of eighty-five years of segregation in Washington:

“Is it to be said fairly that not only did Congress not exercise the

power under Section 5 with reference to the States but, in a realm

in which it has exclusive authority, it enacted legislation to the

contrary? Are you saying that legislation does not mean anything but

what it does? It just segregates, that’s all.”

“Well, not exactly,” Rankin replied. “You have to find a conscious

determination by Congress that segregation was permitted under the

Fourteenth Amendment.”

“You think legislation by Congress is like the British

Empire--something that is acquired in a fit of absent-mindedness?”

“I wouldn’t make that charge before this court,” said Rankin stiffly,

“and I don’t want to be quoted in that manner.”

Nevertheless, Frankfurter’s questions exposed the weakness of

the plaintiffs’ historical justifications. Rankin’s astonishing

idea--that Congress never really had thought much about what it was

doing, during all the years since 1868 in which it had provided

annually for segregated schools in Washington--was echoed in feeble

attempts to explain away the judicial precedents. Jackson and Reed

asked Rankin how he could account for decisions of Northern courts,

in such cases as _Garnes_, _King_, and _Cory_, holding that the

Fourteenth Amendment did not reach public schools. Rankin replied

weakly that “apparently there was no detailed study of the history

and background of the Fourteenth Amendment.” This was too much for

Jackson: “These men lived with the thing,” he said; “they didn’t have

to go to books.”

The question that most troubled Jackson, however, was the key

question of judicial power. He wondered aloud if it were appropriate

“for the court, after all that has intervened, to exercise this

power instead of leaving it to Congress.” Thurgood Marshall, for the

plaintiffs, insisted that theories of a dynamic, growing Constitution

abundantly justified the court in reversing Plessy and in placing its

own contemporary construction on the Amendment. John W. Davis, for

the defense, strongly disagreed: “At some time to every principle

comes a moment of repose, when it has been so often announced, so

confidently relied upon, so long continued, that it passes the limits

of judicial discretion and disturbance.”

Painstakingly, counsel for the Southern States called the roll of

precedents supporting--or not disturbing--the long-established

doctrine of “separate but equal.” The _Plessy_ case of 1896 had been

followed in December 1899 by _Cumming_ v. _Richmond County Board

of Education_ (175 U. S. 528). Here the facts were that a Georgia

county had closed its Negro high school and required local Negro

high school students to go into Augusta for schooling, in order to

convert the high school to the needs of three-hundred elementary

pupils. The Negro high school pupils sought an injunction to upset

this arrangement. And though the denial of equal facilities locally

might seem plain, a _unanimous_ Supreme Court found no merit in the

Negroes’ claim. Some of the students might be inconvenienced by the

requirement that they attend one of the three Negro high schools

in nearby Augusta, but their inconvenience had to be set against

the needs of the elementary children. Further, nothing constructive

would be gained by closing the white high school merely because the

Negro high school was no longer operating. “Under the circumstances

disclosed,” said the court, “we cannot say that this action ... was,

_within the meaning of the Fourteenth Amendment_, a denial by the

State to the plaintiffs and those associated with them of the equal

protection of the law, or of any privileges belonging to them as

citizens of the United States. The education of the people in schools

maintained by State taxation is a matter belonging to the respective

States, and any interference on the part of Federal authority with

the management of such schools cannot be justified except in the

case of a clear and unmistakable disregard of rights secured by

the supreme law of the land.” [Emphasis supplied.] It is curious,

one may note in passing, that persons who so reverently admire

Mr. Justice Harlan’s dissent of 1896 in _Plessy_ customarily fail

altogether to acknowledge that it was Mr. Justice Harlan who spoke in

1899 for a unanimous court in _Cumming_.

The court’s pronouncement in _Cumming_ was cited the following

year in the New York Court of Appeals (161 N. Y. 598), when Negro

petitioners challenged the right and power of Queens Borough to

maintain separate schools. The New York court refused to disturb the

system: “It is equal school facilities and accommodations that are

required to be furnished, and not equal social opportunities.”

In November 1908, the Supreme Court considered a suit brought by

Berea College against the Commonwealth of Kentucky (211 U. S. 45).

Berea, a private college, had been operating as a racially integrated

institution. A State law was enacted making it unlawful for any

corporation chartered in Kentucky to maintain a private school on

such a basis. On the grounds that the law was within Kentucky’s power

to regulate Kentucky corporations, a majority of the Supreme Court

held the law valid. Harlan dissented warmly. He thought Berea’s

right to admit pupils of its own choosing to its classrooms was “a

liberty inherent in the freedom secured by fundamental law,” but he

did not wish to be misunderstood: “Of course what I have said has no

reference to regulations prescribed for public schools, established

at the pleasure of the State and maintained at the public expense.”

Six years later, the generic question of “separate but equal” was

again before the Supreme Court, in _McCabe_ v. _Atchison, Topeka &

Santa Fe Railway Company_ (235 U. S. 151). A Negro passenger had sued

to halt enforcement of an Oklahoma law requiring racial separation on

coaches. The trial court had dismissed the suit by calling attention

to _Plessy_ and saying that the power of the States to require

separate but equal accommodations “could no longer be considered an

open question.” Said Hughes for a unanimous Supreme Court: “There is

no reason to doubt the correctness of that conclusion.”

Thirteen years elapsed. Membership on the court changed. On November

21, 1927, when the court decided _Gong Lum_ v. _Rice_ (275 U. S.

78), Taft was Chief Justice; his brothers included such giants of

the law as Holmes, Brandeis, and Stone. The question of the power of

the States to maintain racially separate but equal schools was put

squarely before the court. Mississippi had insisted that a Chinese

child, Martha Lum, attend a Negro high school in Bolivar County

instead of a white high school. This was what Taft said, speaking for

a _unanimous_ court:

The question here is whether a Chinese citizen of the United States

is denied equal protection of the laws when he is classed among

the colored races and furnished facilities for education equal to

that offered to all, whether white, brown, yellow or black. Were

this a new question, it would call for very full argument and

consideration, but we think that it is the same question which has

been many times decided to be within the constitutional power of

the State legislature to settle without intervention of the Federal

courts under the Federal Constitution.... The decision is within

the discretion of the State in regulating its public schools,

_and does not conflict with the Fourteenth Amendment_. [Emphasis

supplied.]

The _Gong Lum_ case was in 1927. Eleven years later the Supreme Court

dealt with a suit brought by Lloyd Gaines, a Negro, seeking admission

to the law school of the University of Missouri (305 U. S. 337). The

_Gaines_ case is important, because it sometimes is said that it

heralded in 1938 the end of “separate but equal” in 1954. It did no

such thing. The State of Missouri then had no law school for Negroes;

the practice was to pay tuition fees, out of State, for the few

Negro students seeking legal education. Other Negro college students

attended Lincoln University in St. Louis, where Missouri sought

to fulfill its obligation to provide the same general advantages

of higher education for Negroes that it provided for whites by

furnishing equal facilities in separate schools. Chief Justice

Hughes said for the court that this was a method, “_the validity

of which has been sustained by our decisions_.” He was sympathetic

to Missouri’s plan to build Lincoln University into an institution

genuinely equal to the University of Missouri at Columbia. “But

commendable as is that action, the fact remains that instruction in

law for Negroes is not now afforded by the State, either at Lincoln

University or elsewhere.” The court therefore ordered Gaines admitted

to the Missouri Law School. McReynolds dissented, with Butler joining

him. They felt Missouri’s offer to pay Gaines’ tuition in a nearby

law school of good standing would provide the student with abundant

opportunity to study law “if perchance that is the thing really

desired.” In attempting in good faith to meet the constitutionally

sanctioned requirements of separate but equal, said McReynolds, “the

State should not be unduly hampered through theorization inadequately

restrained by experience.”

Three other cases that were reviewed in the oral argument before the

Supreme Court in December 1953 also dealt with higher education at

the graduate-school level. The circumstances in _Sipuel_ v. _Board

of Regents of the University of Oklahoma_ (332 U. S. 630) paralleled

the circumstances of the _Gaines_ case; the court entered no more

than a _per curiam_ order directing that _Gaines_ be followed. On

June 5, 1950, the last two cases were decided: _Sweatt_ v. _Painter_

(339 U. S. 629) and _McLaurin_ v. _Oklahoma State Regents for

Higher Education_ (339 U. S. 637). In both opinions, the court,

speaking through Chief Justice Vinson, was careful to emphasize

that it was following _Gaines_ (that is, that it was following

“separate but equal”) and was not reexamining _Plessy_ at all. In

the _Sweatt_ case, Texas had attempted to establish a Negro law

school at Austin that would be the equal of its University of Texas

Law School in Houston. Relying upon the “intangibles that make for

greatness in a law school,” the court held such equality impossible

of attainment. Similarly, in the _McLaurin_ case, in which Oklahoma

had sought to segregate a Negro graduate in the use of library and

cafeteria facilities, Vinson held for the court that “_under these

circumstances_,” the Fourteenth Amendment precluded any distinction

in treatment of students based upon race.

Regardless of one’s views on the rightness or wrongness of

segregation in the public schools, how are these precedents fairly to

be characterized? Plainly, they form one unbroken chain, reaching

back to the very ratification of the Fourteenth Amendment: _Garnes_

in Ohio, _Stoutmeyer_ in Nevada, _Ward_ in California, _Cory_ in

Indiana, _Bertonneau_ in Louisiana, _King_ in New York, _Lehew_

in Missouri, _Plessy_ in Louisiana, _Cumming_ in Georgia, _Berea_

in Kentucky, _McCabe_ in Oklahoma, _Gong Lum_ in Mississippi,

_Gaines_ in Missouri--in every one of these, extending from 1871

to 1938, the doctrine of “separate but equal” had been judicially

sanctioned as not in violation of the Fourteenth Amendment. And in

_Sipuel_, _McLaurin_, and _Sweatt_ the doctrine had simply been ruled

not applicable in the peculiar circumstances of graduate-school

instruction.

This was the chain the court snapped in the _School Segregation

Cases_. Six months after the case had been reargued, on May 17, 1954,

Chief Justice Warren spoke for a unanimous court in overruling and

discarding this uniform interpretation of more than eighty years.

The text of the court’s opinion appears in the Appendix, along with

its companion decision in the _Bolling_ case from the District of

Columbia. Here it will be seen that the court blandly dismissed the

massive evidence of “intent” with a regal hand: The evidence was

“inconclusive.” Then, disdaining every rule of jurisprudence which

says that law cases should be decided on points of law, the court

delivered itself of some homilies on the importance of education:

“Today, education is perhaps the most important function of State

and local governments.” Everyone must have an education: “It is the

very foundation of good citizenship. It is a principal instrument in

awakening the child to cultural values.” Said the court:

We come then to the question presented: Does segregation of

children in public schools solely on the basis of race, even though

the physical facilities and other “tangible” factors may be equal,

deprive the children of the minority group of equal educational

opportunities? We believe that it does.

That was the key paragraph. The court went on to assert that

the “intangible considerations” it had found to be important in

graduate-school instruction apply with added force to children in

grade and high schools. “To separate them from others of similar age

and qualifications solely because of their race generates a feeling

of inferiority as to their status in the community that may affect

their hearts and minds in a way unlikely ever to be undone.” Whatever

may have been the extent of psychological knowledge at the time of

_Plessy_, said the court, “this finding is amply supported by modern

authority.” And the court inserted its famous Footnote 11 to prove it.

This footnote directed the inquisitive reader to seven sources.

The first was a paper prepared by Kenneth B. Clark, “The Effect of

Prejudice and Discrimination on Personality Development,” delivered

at the 1950 White House Conference on Children and Youth; Clark,

a professor of psychology at the College of the City of New York,

was then at least presumptively on the payroll of the NAACP--he was

“social science consultant for the NAACP’s legal and educational

division.” A second source was “Personality in the Making,” by Helen

Leland Witmer and Ruth Kotinsky. The third was a report of a survey

conducted for the American Jewish Congress in 1947 by Max Deutscher

and Isidor Chein. They sent a questionnaire to 849 social scientists,

asking, first in the affirmative and then in the negative, “[Do

you] believe that enforced segregation has (has not) a detrimental

psychological effect on members of the racial or religious groups

which are segregated?” A second question, similarly phrased, sought

the social scientists’ opinions on whether such segregation has

detrimental effects on the majority group imposing the segregation.

All told, 517 of those queried returned the questionnaire (32 of the

517 were from the South). Not surprisingly, 90 per cent of the 517

obligingly answered Ja to the first question and 83 per cent said Ja

to the second. Had there been an opportunity to put Deutscher and

Chein on a witness stand, counsel for the South might have sought

clarification on what was meant by “enforced,” what by “segregation,”

and what by “detrimental,” and rebuttal witnesses might have been

summoned to testify on the effects, detrimental or otherwise, of

enforced integration on the majority group.

The fourth authority cited by the court was a paper by Chein in a

publication of such large obscurity and small circulation that few

persons can have examined it: “What are the Psychological Effects

of Segregation under Conditions of Equal Facilities,” in Volume 3

of the _International Journal of Opinion and Attitude Research_

(1949). Fifth on the list was “Educational Costs in Discrimination

and National Welfare,” by Theodore Brameld, then a professor of

educational philosophy at the University of Minnesota. The sixth

reference was to Edward Franklin Frazier’s _The Negro in the United

States_. Frazier is a Negro sociologist, professor of sociology at

Howard University, who served as chairman of UNESCO’s committee of

experts on race.

And finally, said the court, “see generally Myrdal, _An American

Dilemma_.”

“We conclude,” said the court, “that in the field of public education

the doctrine of ‘separate but equal’ has no place. _Separate

educational facilities are inherently unequal_.” [Emphasis supplied.]

That final sentence contained perhaps the greatest irony of them all,

for unless words have lost their meaning, the court here decreed

equality for the Negro by finding the Negro innately not equal. What

else did the court mean? Here we are told, on the authority of the

most eminent court in the world, that if one-hundred Negro pupils are

put to study in one building, and one-hundred white pupils are put to

study in an identical building, the first group of pupils, who have

been segregated solely on the basis of race, will make up a school

_inherently_ unequal to the other. “Inherently” comes from the Latin

_haerere_, to stick; it means “firmly infixed; belonging by nature.”

And when the court concluded that separate schools for Negroes are

inherently unequal, it made a judicial finding of fact with which a

great many Southerners would find themselves in wry agreement.

That was the substance of the _Brown_ decision. Because of the

predictable impact of the ruling and the great variety of local

conditions, the court asked for reargument on the formulation of

specific decrees. A year later, on May 31, 1955, a supplementary

opinion (this also appears in full in the Appendix) sent the cases

back to the trial courts with instructions to enter decrees ordering

“the parties to these cases admitted to public schools on a racially

nondiscriminatory basis with all deliberate speed.” By that time,

Kansas had abandoned segregation altogether in its schools; so had

the District of Columbia; so had Delaware over much of the State. In

the course of time, Prince Edward County, Virginia, was to abandon

public education rather than submit to compulsory desegregation of

its schools. The public schools of Clarendon County, S. C., are

still operating as I write, in the spring of 1962, as completely

segregated as they were in the spring of 1954. The new Negro schools

are bright and shining and consolidated, and some of the children of

the original plaintiffs of 1951, it is said, are placidly attending

them.

What was wrong with the _Brown_ decision? The Sibley Commission in

Georgia summarized the South’s protest in two sweeping sentences:

We consider this decision utterly unsound on the facts; contrary

to the clear intent of the Fourteenth Amendment; a usurpation of

legislative function through judicial process; and an invasion of

the reserved rights of States. We further consider that, _putting

aside the question of segregation_, this decision presents a clear

and present danger to our system of constitutional government,

because it places what the court calls “modern authority” in

sociology and psychology above the ancient authority of the law,

and because it places the transitory views of the Supreme Court

above the legislative power of Congress, the settled construction

of the Constitution, and the reserved sovereignty of the several

States. [Emphasis supplied.]

If the student of American government can do as the Sibley commission

suggests, and put aside the question of segregation--eliminate all

the emotional overtones of “prejudice” and “discrimination” and

“second-class citizens”--he will get a clearer picture of the most

disturbing aspect of the _School Segregation Cases_. One of the most

cherished myths of American tradition, as strong and as insubstantial

as any doctrine of religion, is that ours is “a government of laws,

not men.” Viewed coldly and nakedly, the proposition is palpably

absurd; wine is wine, and bread is bread. But by some devout act of

political transubstantiation, the faith of the American people has

imbued this doctrine with a special venerability: We have been reared

to believe that law exists metaphysically, above and beyond the

mortal men who enforce it. As an institution, the high court commands

respect, not for the nine frail vessels beneath the robes, but out of

deference to the higher, holier grail they represent.

And this was what the court shattered in the _Brown_ case: The myth,

the grail, the mystery of the law. “The judicial function is that

of interpretation,” Sutherland once said; “it does not include the

power of amendment under the guise of interpretation.” Cardozo said

the same thing: “We are not at liberty to revise while professing

to construe.” Hughes said it too: “The power of this court is not

to amend, but only to expound the Constitution as an agency of the

sovereign people who made it and who alone have authority to alter or

unmake it.”

But the court disdained these ancient and elementary rules. “By its

decision in the _Brown_ case,” former Justice Byrnes has said, “the

court did not interpret the Constitution. It really amended the

Constitution.” This the court had no legal or moral right to do. It

had only the power to do it--the absolute power, in Acton’s famous

phrase, that left unrestrained, corrupts absolutely.

Part III

Prayer of the Petitioner

I had not intended to write a “Part III” for this book. The object

was to put forth a brief for the South in the single narrow field of

racially separate public schools; my thought was to summarize and

argue the law and the evidence of _Brown_ v. _Board of Education_

as the South views them, and to leave such issues as “sit-ins,”

and voting rights, and the Negro’s future for another day. Yet a

familiar part of the pleading in almost any case is the prayer of the

petitioner, and there is something more to be said for the South in

that hypothetical role.

Patience, the South would ask of its adversaries: Be patient; be

tolerant of imperfection; be mindful that in these difficult areas of

race and race relations, wisdom and virtue do not reside exclusively

in the North, nor sin and ignorance exclusively in the South. The

white man most surely has been at fault; that is conceded. But in his

own way, the black man has been at fault too. And in neither racial

camp can these faults be corrected in the twinkling of a generation.

The apostles of instant innovation, crying zealously for change, do

not comprehend the elemental nature of the forces they are dealing

with. “All is race,” said Disraeli in _Tancred_; “there is no other

truth.” The earliest history of man reflects an awareness of racial

distinctions; in one fashion or another, discrimination has existed

through all recorded time, and “prejudice,” if you please, like the

poor, has been with us always. It exists among the Negro people

themselves. It exists around the world, and may be seen in especially

cruel and virulent forms in some of those nations said to be so

terribly offended by the manifestations of segregation that remain in

the American South. The beam in the eye of Herman Talmadge is small

against the mote in the eye of Mr. Nehru. The Old World has lived

with these problems several millennia longer than the New, but it has

solved them not better; in truth, it has solved them much less well,

and in most cases, it has not solved them at all.

As a creature of the law, racial segregation in the United States

is dead. The voices once confidently raised in the South, crying

that the court would reverse itself in time, have all but died out

now. The court will not reverse itself. On February 26, 1962, a _per

curiam_ opinion rebuked a Mississippi Federal court in icy terms:

“We have settled beyond question that no State may require racial

segregation of interstate or intrastate transportation facilities.

The question is no longer open; it is foreclosed as a litigable

issue.” (_Bailey_ v. _Patterson_, 30 LW 4164.) Similarly, the court

has plunged far beyond the reasoning it advanced in _Brown_ as

a justification for prohibiting segregation in the schools; the

hearts and minds of children, the importance of education, and the

intangibles of a classroom do not figure at all in cases that involve

golf courses, courthouse cafeterias, and the rest rooms of public

buildings. Many staunch Southerners, declaring themselves unwilling

to surrender, do not realize that as a matter of law, the war is

over. There is now not the slightest possibility of a constitutional

amendment to undo what the court did; the Congress will never pass

a law that sanctions segregation in a public institution; the court

is unanimous in its resolution, and some of its members are young.

The Southern State that puts reliance hereafter in any law requiring

racial separation is relying upon a vain and useless thing. We should

be better off, as a matter of law, if Southern legislatures would

go through their Codes with an art gum, erasing the word “Negro”

wherever it appears. Statutory defenses against segregation, apart

from any remaining value they may have in obtaining the law’s delays,

are useless.

These are harsh truths for the South, but the South would do well to

grasp them; once understood, they suggest a course of events in which

accommodation may be found within the broad structure of a voluntary

society. Ovid is sufficient authority for the maxim that nothing is

stronger than custom; and by relying upon custom, and freedom, and

precepts of the law as yet uncorrupted by the court, the South--and

here I mean the white South and the Negro South alike--can discover

some room to turn around in.

Virginia has pointed a way toward such an accommodation, so far as

education is concerned, in its freedom-of-choice program. Under

an act of the General Assembly of 1958, every child in Virginia

has a _right_ to choose between attending a public school or a

nonprofit, nonsectarian private school. The law has nothing to do

with segregation or desegregation. The modest tuition grants provided

in the law (in no case is a grant higher than the local per-pupil

cost in public schools) are intended to represent each child’s equal

share in a total appropriation for purposes of education, and the

State stands indifferent to the child’s way of spending it: Public or

private, it is all the same to the Commonwealth, so long as the child

is schooled.

The freedom-of-choice plan is working now, harmoniously and

effectively, in such areas of Virginia as Norfolk, Charlottesville,

and Front Royal. In each of the localities, the public schools are

desegregated; in each of the localities, good private schools are

operating. Some white families have made one choice, some another.

In a number of cases, white children living in Albemarle County and

Norfolk County have obtained county tuition grants in order to attend

the desegregated public schools of neighboring Charlottesville and

Norfolk city. The State raises no objection. This is the students’

right.

The private schools now operating in Virginia have limited their

admissions, to the best of my knowledge, to white pupils only. This

condition may change in time; nothing prevents the organization

of nonprofit schools for Negroes only, or for Negroes and whites

together. In any event, the right of any group of parents to found a

school to their taste would appear beyond successful challenge. “The

most natural right of man,” said Tocqueville, “next to the right of

acting for himself, is that of combining his exertions with those of

his fellow creatures and of acting in common with them. The right

of association therefore appears to be almost as inalienable in

nature as the right of personal liberty. No legislature can attack it

without impairing the foundations of society.”

Virginia is feeling its way carefully with the freedom-of-choice

program. In the 1960-61 school year, 8127 pupils (or a little less

than 1 per cent of the 874,000 children in public schools) gave up

their right to attend a public school and chose, instead, to exercise

their rights under the 1958 law. They obtained grants amounting to

$1.8 million out of total school spending (including sums for capital

outlays) of some $290 million. Public school administrators, many of

whom are fearful of private school competition and jealously opposed

to the program, tend to regard the grants as a net cost--as something

taken away from them. Plainly this is not true. About $200,000 in

grants were taken by pupils who applied the sums to tuition costs in

neighboring public schools, as in Charlottesville and Norfolk; other

outlays were offset by the simple absence of the pupils from public

schools--the State did not have to build classrooms or hire teachers

to teach them. When it is kept in mind that the nonprofit private

schools must meet their own capital costs from contributions and

endowments, the prospect of an ultimate saving to the Commonwealth

becomes evident. These construction costs are a part of the price a

free people should be permitted to pay for freedom to conduct their

lives as they wish. It is inconceivable that Federal courts should

outlaw this voluntary, nondiscriminatory plan as a mere subterfuge or

circumvention of the _Brown_ decision. It emphatically is not.

In _Pierce_ v. _Society of Sisters_ (268 U. S. 510) the Supreme Court

laid down the principles on which Virginia is relying. The opinion

held unconstitutional an Oregon act of 1922 requiring children of

that State to attend public schools and public schools only. A

private military academy and a Catholic parochial school complained

that the law violated the right of parents to choose schools for

their children where the pupils would receive the sort of training

the parents wished them to have; beyond that, the law violated the

right of private schools and teachers to engage in a useful and

lawful business or profession.

A unanimous court, speaking through Mr. Justice McReynolds, accepted

the plaintiffs’ position entirely. Oregon’s law “unreasonably

interferes with the liberty of parents and guardians to direct the

upbringing and education of children under their control.” Their

rights in this regard are guaranteed by the Constitution and may not

be abridged by legislation which has no reasonable relation to some

purpose within the competency of the State. “The fundamental theory

of liberty upon which all governments in this Union repose excludes

any general power of the State to standardize its children by forcing

them to accept instruction from public teachers only. The child is

not the mere creature of the State; those who nurture him and direct

his destiny have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.”

As Douglas said in _Lerner_ v. _Casey_ (357 U. S. 468), the liberties

guaranteed to the citizen by the First and Fourteenth amendments

include “the right to believe what one chooses, the right to differ

from his neighbor, the right to pick and choose the political

philosophy that he likes best, the right to associate with whomever

he chooses, the right to join the groups he prefers, the privilege

of selecting his own path to salvation.” And in a case upholding the

right of Negroes to associate, Mr. Justice Harlan expressed for the

court the same view that white parents take in forming a private

school for their children: “It is beyond debate that freedom to

engage in association for the advancement of beliefs and ideas is

an inseparable aspect of the ‘liberty’ assured by the Fourteenth

Amendment.” (_NAACP_ v. _Alabama_, 357 U. S. 449.)

The high court’s opinion in the _School Segregation Cases_ did

nothing to interfere with these basic concepts of individual freedom

of action in areas of education. It is important to understand, the

Fourth U. S. Circuit Court of Appeals has said, “exactly what the

Supreme Court has decided [in _Brown_] and what it has not decided in

this case”:

It has not decided that the Federal courts are to take over or

regulate the public schools of the States. It has not decided that

the States must mix persons of different races in the schools or

must require them to attend schools, or must deprive them of the

right of choosing the schools they attend. What it has decided,

and all that it has decided, is that a State may not deny to any

person on account of race the right to attend any school that it

maintains. This, under the decision of the Supreme Court, the

State may not do directly or indirectly; but if the schools which

it maintains are open to children of all races, no violation of

the Constitution is involved even though the children of different

races voluntarily attend different schools, as they attend

different churches. Nothing in the Constitution or in the decision

of the Supreme Court takes away from the people the freedom to

choose the schools they attend. The Constitution, in other words,

does not require integration. It merely forbids discrimination.

It does not forbid such segregation as the result of voluntary

action. It merely forbids the use of governmental power to enforce

segregation. The Fourteenth Amendment is a limitation upon the

exercise of power by the state or State agencies, not a limitation

upon the freedom of individuals.

This interpretation by an exceptionally able appellate court offers

the South, if only the South will accept it (and if our more rabid

and influential friends in the North will abate their impatient

demands), some basis for a tolerable way of life. In its immediate

application, the Supreme Court’s decision in the four suits decided

by _Brown_ was not, of course, “the supreme law of the land.” It

was, as every court opinion must be, simply the law of the case,

disposing of the controversies between the named plaintiffs and the

named defendants. Even though such suits are “class actions,” the

class in each case is limited by such facts as those of geography;

a court order directed against Clarendon County does not require

the superintendent of schools in adjoining Sumter County to do

anything. Thus, under well-accepted principles of law, the counties

and cities of the South that are not under court order stand under

no legal obligation to alter their traditional school policies. No

law or court order requires them to integrate; no law or court order

requires them affirmatively to take any action. True, if a point is

made of it, and formal complaint of discrimination is filed, local

school officials must then yield to the principles laid down by the

Supreme Court; they can yield voluntarily, or they can go through the

motions of a predictable court proceeding, but they cannot deny the

child by reason of his race the right to attend any public school

under their supervision.

This deliberate, unhurried view of the school problem tends to

madden the professional integrationist. He looks at the progress of

desegregation in the South, eight years after _Brown_, and apart from

the border States he sees:

---------------------------------------------------------------

DESEGREGATION OF PUBLIC SCHOOLS,

ELEVEN SOUTHERN STATES, MAY 17, 1962

---------------------------------------------------------------

_Negroes in Schools

_Enrollment_ With Whites_

_State_ _White_ _Negro_ _Number_ _Per cent_

Alabama 523,000 276,000 0 0.000

Arkansas 320,000 109,000 151 0.139

Florida 927,000 242,000 648 0.268

Georgia 642,000 303,000 8 0.003

Louisiana 450,000 295,000 12 0.004

Mississippi 294,000 287,000 0 0.000

North Carolina 787,000 333,000 203 0.061

South Carolina 364,000 265,000 0 0.000

Tennessee 663,000 155,000 1,167 0.750

Texas 1,892,000 301,000 4,000 1.330

Virginia 657,000 217,000 536 0.247

-----------

Source: Southern School News, May 1962.

---------------------------------------------------------------

These figures arouse the South’s critics, but another fact

contributes more significantly to their exasperation: The people of

the South, white and Negro together, continue to dwell amiably side

by side. Except where hired missionaries from the NAACP can stir up

a lawsuit, agitation for an end to school segregation ranges from

small to nil. The Southern States have put these past eight years

to good use in pouring a fortune into equalization of Negro school

facilities. Old patterns persist because many Negro families, to

the disgust of the U. S. Civil Rights Commission, find the patterns

not intolerable. In Virginia, for example, Negro parents know that

they can petition successfully for admission of their children to

the nearest “white” school; local officials no longer even resort to

court delays. But three years after collapse of Virginia’s massive

resistance, fewer than one-quarter of 1 per cent of the Negro parents

have taken the trouble to do so.

This slow path toward evolutionary change should commend itself to

reasonably minded men. Whatever violence to constitutional law was

done by the _Brown_ decision, it is done; we ought not to condone

it, defend it, rationalize it, or forgive it, but we ought not to

pretend that it never happened. We of the South have to live with

these new legal principles, and accommodate our society to them. So

far as the education of children is concerned, this can be done (1)

by continuing to provide the best possible schools our resources

can provide; (2) by continuing to separate children by race, in the

certain conviction that such basic pupil assignments violate no law

or court order, and are in accord with community wishes; and (3)

by approving and accepting individual, particular applications for

transfer or admission on a genuinely nondiscriminatory basis. And if,

in addition, entirely apart from any racial considerations whatever,

a freedom-of-choice program can be put in motion to stimulate the

growth of private education, the South’s school problems can be

controlled for a long time to come.

* * * * *

Your petitioners are hopeful that such an approach, much as it

may annoy the advocates of compulsory integration, will find a

favorable response among men who are willing to take the long view.

It seems to us wholly in accord with the oldest principles of

federalism--principles that have contributed much to the strength and

vitality of this Republic. It is the diversity of the States, their

ability to experiment, their right and power to respond to a variety

of local conditions and customs that together prevent the evils of

excessive centralism. “The traditions and habits of centuries were

not intended to be overthrown when the Fourteenth Amendment was

passed,” said Holmes. He remarked again: “There is nothing that I

more deprecate than the use of the Fourteenth Amendment beyond the

absolute compulsion of its words to prevent the making of social

experiments that an important part of the community desires, in the

insulated chambers afforded by the several States, even though the

experiments may seem futile or even noxious to me and to those whose

judgment I most respect.”

Not only is this approach in accord with a wise federalism; it

also offers the greatest opportunity to the Southern Negro himself.

In the course of a debate in the _Saturday Review_ with William

Sloane Coffin, the New York-born William F. Buckley, Jr., said

this: “If it is true that the separation of the races on account of

color is nonrational, then circumstance will in due course break

down segregation. When it becomes self-evident that biological,

intellectual, cultural, and psychic similarities among the races

render social separation atavistic, then the myths will begin to

fade, as they have done in respect of the Irish, the Italian, the

Jew; then integration will come--the right kind of integration.”

The South has begun to look upon its Negro people, since _Brown_,

in a new way. Shortcomings of the Negro that earlier had been

merely sensed are now acutely seen. But this is no bad thing.

Before any social ill may be remedied, it first must be diagnosed

and understood. Many a Southerner is now sensitive to the outward

and visible signs of segregation; he was not so before. Today the

detritus of a crumbling institution may be observed at every hand,

and there are times when he squirms a little inside. This retreat

to neutrality on the white man’s part is a necessary condition if

the Negro, _by his own exertions_, is to find an equal place in the

sun. In the end, the white man cannot do the job for him; Jim Crow

is dead, but the legal shot that felled him also put Massa in the

cold, cold ground. It is said that the high court “cast off the

Negro’s shackles”; it cast off his crutches too. The paternalism of

generations is vanishing year by year, to be replaced by a healthy

skepticism: The Negro says he’s the white man’s equal; _show me_.

No decree of court, no act of Congress, can give the Negro more than

this. He has no right--no legal right, no moral right--to intrude

upon the private institutions of his neighbors. If individual liberty

means anything, it must mean that each individual, regardless

of color, is at liberty to choose his own personal and business

associates, and to choose them for whatever reason. This the Negro

must understand. If he is to become a part of this association, on

equal terms, he must do what every other race of men has done since

time began, and that is to demonstrate his worth to the community

he seeks to enter. For more than three-hundred years, the white

South by and large has regarded such entry as impossible. I would

be less than honest if I did not acknowledge that a great part of

the Deep South still views the slightest yielding as anathema. But

elsewhere in my changing and unchanging land, the old unequivocal

“no” to Negro equality slowly merges into a doubtful “maybe.” On

the day that I write these concluding paragraphs, the local transit

company in Richmond has announced employment of its first Negro bus

drivers. The story made page one; but it made just the bottom of

page one, and the Capital of the late Confederacy will not voice

the slightest ripple of objection. If these drivers make it up the

hill, others will follow. If the first Negro clerks in local retail

stores can sell themselves, the experience of one merchant will

persuade his neighbor. And the more the Negro people can do within

their own neighborhoods and business communities, the more the white

community’s retreat to neutrality will continue.

I believe the South will maintain what I have termed essential

separation of the races for years to come. This means very nearly

total segregation in education, where the intimate, personal, and

prolonged association of white and Negro boys and girls, in public

schools, in massive numbers, as social equals, is more than community

attitudes will accept. The sad example of Prince Edward County,

where a resolute rural people abandoned all public schools, offers

an instructive lesson to the advocates of frontal assault. “We see

the wisdom of Solon’s remark,” Jefferson once observed, “that no more

good must be attempted than the nation can bear.” This essential

separation also takes in such wholly social institutions as private

clubs. I cannot foresee the integration of Protestant churches in

the South. And whatever the Supreme Court may do in time to the

miscegenation laws, ostracism, swift and certain, awaits those who

would cross this marital line. But my guess would be that in areas

of higher education, in many fields of employment, in professional

associations, in such quasi-public fields as hotels, restaurants, and

concert halls, doors that have been closed will open one by one. And

a South that once would have regarded these innovations with horror

will view them at first with surprise, then with regret, for a time

with distaste, and at last with indifference. As the migration of

the Negro out of the South continues, other parts of the nation, at

once benefited and handicapped for want of the South’s experience in

coexistence, will grapple in their own fashion with the cultural and

economic assimilation of the Negro. They will not find it easy, but

they can rely upon this: The South will not intrude its views upon

theirs. This is a big country, a great country; it remains the freest

country on earth, and the Negro people are a part of it. The law has

done what it can for Negroes as a whole; the law will do more, in

specific situations. The rest is up to time, and up to the Negroes

themselves.

Appendix

Appendix

BROWN et al. v. BOARD OF EDUCATION OF TOPEKA

et al. [347 U. S. 483]

Appeal from the United States District Court for the

District of Kansas[1]

Argued December 9, 1952.--Reargued December 8, 1953.--Decided

May 17, 1954.

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

These cases come to us from the States of Kansas, South Carolina,

Virginia, and Delaware. They are premised on different facts and

different local conditions, but a common legal question justifies

their consideration together in this consolidated opinion.[2]

In each of these cases, minors of the Negro race, through their legal

representatives, seek the aid of the courts in obtaining admission

to the public schools of their community on a nonsegregated basis.

In each instance, they had been denied admission to schools attended

by white children under laws requiring or permitting segregation

according to race. This segregation was alleged to deprive the

plaintiffs of the equal protection of the laws under the Fourteenth

Amendment. In each of the cases other than the Delaware case, a

three-judge federal district court denied relief to the plaintiffs

on the so-called “separate but equal” doctrine announced by this

Court in _Plessy_ v. _Ferguson_, 163 U. S. 537. Under that doctrine,

equality of treatment is accorded when the races are provided

substantially equal facilities, even though these facilities be

separate. In the Delaware case, the Supreme Court of Delaware adhered

to that doctrine, but ordered that the plaintiffs be admitted to the

white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal”

and cannot be made “equal,” and that hence they are deprived of the

equal protection of the laws. Because of the obvious importance of

the question presented, the Court took jurisdiction.[3] Argument

was heard in the 1952 Term, and reargument was heard this Term on

certain questions propounded by the Court.[4]

Reargument was largely devoted to the circumstances surrounding the

adoption of the Fourteenth Amendment in 1868. It covered exhaustively

consideration of the Amendment in Congress, ratification by the

states, then existing practices in racial segregation, and the views

of proponents and opponents of the Amendment. This discussion and

our own investigation convince us that, although these sources cast

some light, it is not enough to resolve the problem with which we are

faced. At best, they are inconclusive. The most avid proponents of

the post-War Amendments undoubtedly intended them to remove all legal

distinctions among “all persons born or naturalized in the United

States.” Their opponents, just as certainly, were antagonistic to

both the letter and the spirit of the Amendments and wished them to

have the most limited effect. What others in Congress and the state

legislatures had in mind cannot be determined with any degree of

certainty.

An additional reason for the inconclusive nature of the Amendment’s

history, with respect to segregated schools, is the status of public

education at that time.[5] In the South, the movement toward free

common schools, supported by general taxation, had not yet taken

hold. Education of white children was largely in the hands of private

groups. Education of Negroes was almost non-existent, and practically

all of the race were illiterate. In fact, any education of Negroes

was forbidden by law in some states. Today, in contrast, many Negroes

have achieved outstanding success in the arts and sciences as well

as in the business and professional world. It is true that public

school education at the time of the Amendment had advanced further

in the North, but the effect of the Amendment on Northern States was

generally ignored in the congressional debates. Even in the North,

the conditions of public education did not approximate those existing

today. The curriculum was usually rudimentary; ungraded schools were

common in rural areas; the school term was but three months a year in

many states; and compulsory school attendance was virtually unknown.

As a consequence, it is not surprising that there should be so little

in the history of the Fourteenth Amendment relating to its intended

effect on public education.

In the first cases in this Court construing the Fourteenth Amendment,

decided shortly after its adoption, the Court interpreted it as

proscribing all state-imposed discriminations against the Negro

race.[6] The doctrine of “separate but equal” did not make its

appearance in this Court until 1896 in the case of _Plessy_ v.

_Ferguson_, _supra_, involving not education but transportation.[7]

American courts have since labored with the doctrine for over half

a century. In this Court, there have been six cases involving the

“separate but equal” doctrine in the field of public education.[8] In

_Cumming_ v. _County Board of Education_, 175 U. S. 528, and _Gong

Lum_ v. _Rice_, 275 U. S. 78, the validity of the doctrine itself was

not challenged.[9] In more recent cases, all on the graduate-school

level, inequality was found in that specific benefits enjoyed by

white students were denied to Negro students of the same educational

qualifications. _Missouri ex rel. Gaines_ v. _Canada_, 305 U. S. 337;

_Sipuel_ v. _Oklahoma_, 332 U. S. 631; _Sweatt_ v. _Painter_, 339 U.

S. 629; _McLaurin_ v. _Oklahoma State Regents_, 339 U. S. 637. In

none of these cases was it necessary to re-examine the doctrine to

grant relief to the Negro plaintiff. And in _Sweatt_ v. _Painter_,

_supra_, the Court expressly reserved decision on the question

whether _Plessy_ v. _Ferguson_ should be held inapplicable to public

education.

In the instant cases, that question is directly presented. Here,

unlike _Sweatt_ v. _Painter_, there are findings below that the

Negro and white schools involved have been equalized, or are being

equalized, with respect to buildings, curricula, qualifications and

salaries of teachers, and other “tangible” factors.[10] Our decision,

therefore, cannot turn on merely a comparison of these tangible

factors in the Negro and white schools involved in each of the cases.

We must look instead to the effect of segregation itself on public

education.

In approaching this problem, we cannot turn the clock back to 1868

when the Amendment was adopted, or even to 1896 when _Plessy_ v.

_Ferguson_ was written. We must consider public education in the

light of its full development and its present place in American life

throughout the Nation. Only in this way can it be determined if

segregation in public schools deprives these plaintiffs of the equal

protection of the laws.

Today, education is perhaps the most important function of state and

local governments. Compulsory school attendance laws and the great

expenditures for education both demonstrate our recognition of the

importance of education to our democratic society. It is required

in the performance of our most basic public responsibilities, even

service in the armed forces. It is the very foundation of good

citizenship. Today it is a principal instrument in awakening the

child to cultural values, in preparing him for later professional

training, and in helping him to adjust normally to his environment.

In these days, it is doubtful that any child may reasonably be

expected to succeed in life if he is denied the opportunity of an

education. Such an opportunity, where the state has undertaken to

provide it, is a right which must be made available to all on equal

terms.

We come then to the question presented: Does segregation of children

in public schools solely on the basis of race, even though the

physical facilities and other “tangible” factors may be equal,

deprive the children of the minority group of equal educational

opportunities? We believe that it does.

In _Sweatt_ v. _Painter_, _supra_, in finding that a segregated

law school for Negroes could not provide them equal educational

opportunities, this Court relied in large part on “those qualities

which are incapable of objective measurement but which make for

greatness in a law school.” In _McLaurin_ v. _Oklahoma State

Regents_, _supra_, the Court, in requiring that a Negro admitted to

a white graduate school be treated like all other students, again

resorted to intangible considerations: “ ... his ability to study, to

engage in discussions and exchange views with other students, and,

in general, to learn his profession.” Such considerations apply with

added force to children in grade and high schools. To separate them

from others of similar age and qualifications solely because of their

race generates a feeling of inferiority as to their status in the

community that may affect their hearts and minds in a way unlikely

ever to be undone. The effect of this separation on their educational

opportunities was well stated by a finding in the Kansas case by a

court which nevertheless felt compelled to rule against the Negro

plaintiffs:

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 [retard] the educational and mental development

of Negro children and to deprive them of some of the benefits they

would receive in a racial[ly] integrated school system.[11]

Whatever may have been the extent of psychological knowledge at the

time of _Plessy_ v. _Ferguson_, this finding is amply supported by

modern authority.[12] Any language in _Plessy_ v. _Ferguson_ contrary

to this finding is rejected.

We conclude that in the field of public education the doctrine of

“separate but equal” has no place. Separate educational facilities

are inherently unequal. Therefore, we hold that the plaintiffs and

others similarly situated for whom the actions have been brought are,

by reason of the segregation complained of, deprived of the equal

protection of the laws guaranteed by the Fourteenth Amendment. This

disposition makes unnecessary any discussion whether such segregation

also violates the Due Process Clause of the Fourteenth Amendment.[13]

Because these are class actions, because of the wide applicability

of this decision, and because of the great variety of local

conditions, the formulation of decrees in these cases presents

problems of considerable complexity. On reargument, the consideration

of appropriate relief was necessarily subordinated to the primary

question--the constitutionality of segregation in public education.

We have now announced that such segregation is a denial of the

equal protection of the laws. In order that we may have the full

assistance of the parties in formulating decrees, the cases will be

restored to the docket, and the parties are requested to present

further argument on Questions 4 and 5 previously propounded by the

Court for the reargument this Term.[14] The Attorney General of the

United States is again invited to participate. The Attorneys General

of the states requiring or permitting segregation in public education

will also be permitted to appear as _amici curiae_ upon request to

do so by September 15, 1954, and submission of briefs by October 1,

1954.[15]

_It is so ordered._

BOLLING et al. v. SHARPE et al.

[347 U. S. 497]

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Argued December 10-11, 1952.--Reargued December 8-9,

1953.--Decided May 17, 1954.

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

This case challenges the validity of segregation in the public

schools of the District of Columbia. The petitioners, minors of the

Negro race, allege that such segregation deprives them of due process

of law under the Fifth Amendment. They were refused admission to a

public school attended by white children solely because of their

race. They sought the aid of the District Court for the District

of Columbia in obtaining admission. That court dismissed their

complaint. The Court granted a writ of certiorari before judgment in

the Court of Appeals because of the importance of the constitutional

question presented. 344 U. S. 873.

We have this day held that the Equal Protection Clause of the

Fourteenth Amendment prohibits the states from maintaining racially

segregated public schools.[16] The legal problem in the District of

Columbia is somewhat different, however. The Fifth Amendment, which

is applicable in the District of Columbia, does not contain an equal

protection clause as does the Fourteenth Amendment which applies only

to the states. But the concepts of equal protection and due process,

both stemming from our American ideal of fairness, are not mutually

exclusive. The “equal protection of the laws” is a more explicit

safeguard of prohibited unfairness than “due process of law,” and,

therefore, we do not imply that the two are always interchangeable

phrases. But, as this Court has recognized, discrimination may be so

unjustifiable as to be violative of due process.[17]

Classifications based solely upon race must be scrutinized with

particular care, since they are contrary to our traditions and

hence constitutionally suspect.[18] As long ago as 1896, this Court

declared the principle “that the Constitution of the United States,

in its present form, forbids, so far as civil and political rights

are concerned, discrimination by the General Government, or by

the States, against any citizen because of his race.”[19] And in

_Buchanan_ v. _Warley_, 245 U. S. 60, the Court held that a statute

which limited the right of a property owner to convey his property

to a person of another race was, as an unreasonable discrimination,

a denial of due process of law.

Although the Court has not assumed to define “liberty” with any great

precision, that term is not confined to mere freedom from bodily

restraint. Liberty under law extends to the full range of conduct

which the individual is free to pursue, and it cannot be restricted

except for a proper governmental objective. Segregation in public

education is not reasonably related to any proper governmental

objective, and thus it imposes on Negro children of the District of

Columbia a burden that constitutes an arbitrary deprivation of their

liberty in violation of the Due Process Clause.

In view of our decision that the Constitution prohibits the states

from maintaining racially segregated public schools, it would be

unthinkable that the same Constitution would impose a lesser duty on

the Federal Government.[20] We hold that racial segregation in the

public schools of the District of Columbia is a denial of the due

process of law guaranteed by the Fifth Amendment to the Constitution.

For the reasons set out in _Brown_ v. _Board of Education_, this case

will be restored to the docket for reargument on Questions 4 and 5

previously propounded by the Court. 345 U. S. 972.

_It is so ordered._

BROWN et al. v. BOARD OF EDUCATION OF

TOPEKA et al.

[Supplementary opinion of May 31, 1955]

[349 U. S. 294]

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

These cases were decided on May 17, 1954. The opinions of that

date,[21] declaring the fundamental principle that racial

discrimination in public education is unconstitutional, are

incorporated herein by reference. All provisions of federal, state,

or local law requiring or permitting such discrimination must yield

to this principle. There remains for consideration the manner in

which relief is to be accorded.

Because these cases arose under different local conditions and their

disposition will involve a variety of local problems, we requested

further argument on the question of relief.[22] In view of the

nationwide importance of the decision, we invited the Attorney

General of the United States and the Attorneys General of all states

requiring or permitting racial discrimination in public education

to present their views on that question. The parties, the United

States and the States of Florida, North Carolina, Arkansas, Oklahoma,

Maryland, and Texas filed briefs and participated in the oral

argument.

These presentations were informative and helpful to the Court in

its consideration of the complexities arising from the transition

to a system of public education freed of racial discrimination. The

presentations also demonstrated that substantial steps to eliminate

racial discrimination in public schools have already been taken,

not only in some of the communities in which these cases arose, but

in some of the states appearing as _amici curiae_, and in other

states as well. Substantial progress has been made in the District

of Columbia and in the communities in Kansas and Delaware involved

in this litigation. The defendants in the cases coming to us from

South Carolina and Virginia are awaiting the decision of this Court

concerning relief.

Full implementation of these constitutional principles may require

solution of varied local school problems, School authorities have the

primary responsibility for elucidating, assessing, and solving these

problems; courts will have to consider whether the action of school

authorities constitutes good faith implementation of the governing

constitutional principles. Because of their proximity to local

conditions and the possible need for further hearings, the courts

which originally heard these cases can best perform this judicial

appraisal. Accordingly, we believe it appropriate to remand the cases

to those courts.[23]

In fashioning and effectuating the decrees, the courts will be

guided by equitable principles. Traditionally, equity has been

characterized by a practical flexibility in shaping its remedies[24]

and by a facility for adjusting and reconciling public and private

needs.[25] These cases call for the exercise of these traditional

attributes of equity power. At stake is the personal interest of the

plaintiffs in admission to public schools as soon as practicable

on a nondiscriminatory basis. To effectuate this interest may call

for elimination of a variety of obstacles in making the transition

to school systems operated in accordance with the constitutional

principles set forth in our May 17, 1954, decision. Courts of equity

may properly take into account the public interest in the elimination

of such obstacles in a systematic and effective manner. But it

should go without saying that the vitality of these constitutional

principles cannot be allowed to yield simply because of disagreement

with them.

While giving weight to these public and private considerations, the

courts will require that the defendants make a prompt and reasonable

start toward full compliance with our May 17, 1954, ruling. Once such

a start has been made, the courts may find that additional time is

necessary to carry out the ruling in an effective manner. The burden

rests upon the defendants to establish that such time is necessary in

the public interest and is consistent with good faith compliance at

the earliest practicable date. To that end, the courts may consider

problems related to administration, arising from the physical

condition of the school plant, the school transportation system,

personnel, revision of school districts and attendance areas into

compact units to achieve a system of determining admission to the

public schools on a nonracial basis, and revision of local laws and

regulations which may be necessary in solving the foregoing problems.

They will also consider the adequacy of any plans the defendants may

propose to meet these problems and to effectuate a transition to

a racially nondiscriminatory school system. During this period of

transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are

accordingly reversed and the cases are remanded to the District

Courts to take such proceedings and enter such orders and decrees

consistent with this opinion as are necessary and proper to admit

to public schools on a racially nondiscriminatory basis with all

deliberate speed the parties to these cases. The judgment in the

Delaware case--ordering the immediate admission of the plaintiffs

to schools previously attended only by white children--is affirmed

on the basis of the principles stated in our May 17, 1954, opinion,

but the case is remanded to the Supreme Court of Delaware for such

further proceedings as that Court may deem necessary in light of this

opinion.

_It is so ordered._

A BIBLIOGRAPHICAL NOTE

There stands in the Grove of Academe, or so I have often imagined,

a certain idolatrous image. It is a crane-like creature with italic

wings, the great god _Ibid._, and before it, strutting on their

tiny six-point feet, the pedant peacocks daily make obeisance. They

look up, _supra_, and down _infra_, and spreading their tails with

asterisk eyes, they march with robed scholars to lay garlands of _op.

cit._ upon the ritual shrine.

When I launched into this book, I swore a blasphemous oath upon such

phony veneration. After a long life of reading footnotes, and reading

them religiously, I have concluded that 98.2 per cent of them are so

much flummery: They are showin’ off befo’ God. Thus I had not planned

upon notes or bibliography, and this extended note is afterthought;

it is the reluctant consequence of listening to beguiling editors.

They said: Where did you get all this stuff? Whence these bizarre

ideas? They said: Serious students will want to know where to get

supporting material intended to prove (a) that you are a fraud,

or (b) that there may be something to the Southern position after

all. You ought to gird up your Gothic archness with a few flying

buttresses of attribution. And in a moment of weakness, I said very

well.

The figures on population, area, wages, housing, and the like, in the

opening pages of this book, come primarily from the 1960 Census and

the _Statistical Abstract of the United States for 1961_. The Census

people have a diabolical genius for presenting their data in the

least usable possible form, but they have a monopoly on the figures

and no other source exists.

As for the nature of the South: Almost every Southerner who writes

for a living at one time or another has wooed this elusive theme. I

would suggest that a student start with W. J. Cash’s _The Mind of

the South_, not because I agree with everything Cash had to say,

but because his brief star flashed with a rare brilliance across

the Southern sky. The Knopf edition of 1941 is now available in a

Doubleday Anchor paperback, and though parts of it are dated, it

continues to offer a good basic foundation. Then, at random, William

Alexander Percy’s _Lanterns on the Levee_, and David Cohn’s _Where

I Was Born and Raised_. The late William Polk of Greensboro, N.C.,

was a delightful gentleman; during an editorial writers’ convention

in Boston, we once talked of the South’s problems between the bumps

and grinds of an Old Howard Burly-Q. His book, _Southern Accent_

(1953) is fine background reading. Although they are hard to find,

Ward Allison Dorrance’s several books on Southern rivers are worth

the effort. Some good essays appear in _The Lasting South_ (1957), a

collection edited largely by Louis D. Rubin, Jr., though my own name

is on the spine too.

A great many other books about the South come to mind. Henry Grady’s

_The New South_, published in 1890, is almost indispensable. Another

necessary work, of seminal influence, is the Agrarians’ _I’ll Take

My Stand_ of 1930. I come back frequently to Matthew Page Andrews’

_Virginia, The Old Dominion_. C. Vann Woodward’s several books are

useful: _The Burden of Southern History_, _Origins of the New South_,

and _The Strange Career of Jim Crow_. The serious student’s reading

list would find a place for _Seeds of Time_, by Henry Savage, Jr.;

_Southern Tradition and Regional Progress_, by William H. Nicholls;

_The Southern Heritage_, by James McBride Dabbs, and _Goodbye to

Uncle Tom_, by J. C. Furnas. Thomas D. Clark’s _The Emerging South_

is good on economic history. Virginius Dabney’s _Below the Potomac_,

published in 1942, remains a solid work. Bernard Robb’s _Welcum

Hinges_ is at once gentle and delightful. The student should not pass

by Harry Ashmore’s _Epitaph for Dixie_ (1958) and _The Other Side of

Jordan_ (1960). And of course, before it gets overlooked by reason

of its bulk and importance, the multi-volumed history of the South

emerging from Louisiana State University Press is a primary reference.

Many of the foregoing titles--alas, almost all of them--are the work

of Southern Liberals. And I do not seem to have mentioned P. D.

East’s _The Magnolia Jungle_, or Hodding Carter’s _Southern Legacy_

and _Where the Main Street Meets the River_, and _The South Strikes

Back_, or Robert Penn Warren’s _Segregation_, or Jonathan Daniels’

_A Southerner Discovers the South_ and _Frontier on the Potomac_.

Nearly all the recent crop of books are cast in molds more liberal

yet: Carl T. Rowan’s _Go South to Sorrow_; John Howard Griffin’s

_Black Like Me_, and Richard Wright’s _White Man, Listen!_ Wilma

Dykeman and James Stokely have co-authored two books worth serious

thought: _Neither Black nor White_, and _Seeds of Southern Change_.

A student’s shelf should leave a place for William Peters’ _The

Southern Temper_. Several books of largely contemporary, topical

interest should be read: Martin Luther King’s account of the

Montgomery boycott, _Stride Toward Freedom_; Bishop Robert R. Brown’s

_Bigger Than Little Rock_; Virgil T. Blossom’s _It Has Happened

Here_; and John Bartlow Martin’s generally well-balanced _The Deep

South Says Never_. Martin’s book is the work of a professional

reporter. Most of the rest of the books mentioned in this paragraph

annoyed the hell out of me.

Against this monstrous amount of sack, one finds but a penny’s worth

of bread. The conservative South has not lacked willing spokesmen;

it has lacked agreeable publishers. A bare handful of works present

a contrary view, and some of these--Herman Talmadge’s _You and

Segregation_, and W. E. Debnam’s impudent _Weep No More, My Lady_,

and _My Old Kentucky Home, Good Night_--are in paperback. The scant

list of hardcover works espousing the point of view of several

million white Southerners includes only Bill Workman’s _The Case

for the South_ (1960), Carleton Putnam’s _Race and Reason, a Yankee

View_, and my own _The Sovereign States_ (1957), a book I still like

very much. (There is also Charles P. Bloch’s lawyerly _States Rights:

The Law of the Land_, but that probably should be mentioned later in

books on legal aspects of the question.)

One scarcely knows where to begin on books dealing with the Negro

as such. The literature in this field is unending. In fairness,

the student should seek out a couple of books that advance the

traditional Southern view: Earnest Sevier Cox’s _White America_

(1923) and, from as far back as 1910, E. H. Randle’s slim

_Characteristics of the Southern Negro_. In the same year that Randle

wrote his book, an English critic, William Archer, brought forth

_Through Afro-America_. These three works are period pieces now, but

they still have value.

I have relied heavily in writing this book on Nathaniel Weyl’s _The

Negro in American Civilization_. Needless to say, a hundred other

works are arrayed against his point of view. The student doubtless

will have to begin with almost anything from W. E. B. DuBois, keeping

in mind that DuBois, the grand old Red of the NAACP, formally joined

the Communist Party in 1961. His works are important, nonetheless.

Jerome Dowd’s _The Negro in American Life_ (1926) is long, and

outdated, but still most useful. A thoughtful reader will find a few

hours for Tuskegee’s Robert R. Moton; his autobiography of 1920,

_Finding a Way Out_, even then predicted a day when the white South

would “stop feeling and begin thinking” about its Negro problem,

and his _What the Negro Thinks_ (1929) offers an insight into the

continuing nature of Negro goals. A more militant work by the NAACP’s

James Weldon Johnson, _Negro Americans, What Now?_ appeared in 1934.

And thinking of the NAACP, Mary White Ovington’s _The Walls Came

Tumbling Down_ (1947) contains some material not available elsewhere.

Of more recent vintage, half a dozen studies of the Negro deserve

mention as reference works. Primus, of course, the monumental (and

monumentally unreadable) work of Gunnar Myrdal and his associates,

_An American Dilemma_. There are said to be eleven persons in the

United States, apart from the collaborators, who have read the

whole two volumes; I am not among them. But I ploughed through most

of it. Arnold Rose, Myrdal’s chief assistant, has brought out a

condensation, published in 1948 as _The Negro in America_. Rayford

W. Logan of Howard University, one of the most prolific writers in

the field, has produced a number of works of substantial value, among

them _The Negro in American Life and Thought_ and _The Negro in the

Postwar World_. His colleague, Edward Franklin Frazier, also has

published extensively; his _The Negro in the United States_ (1957)

is quite useful. Still another Negro writer, Arna Werdell Bontemps,

should be consulted through her _100 Years of Negro Freedom_. An

interesting work that I came across after this manuscript was

finished is Gilbert Franklin Edwards’ _The Negro Professional Class_

(1959).

In the narrower field of political action, the general reader should

begin with V. O. Key’s major work, _Southern Politics in State and

Nation_, which sets the scene, and then go back to William Felbert

Nowlin’s work of 1931, _The Negro in American National Politics_. A

good contemporary work is _The Negro and Southern Politics_, by Hugh

Douglas White. Of less value, in part because of its arrogant tone,

is Henry Lee Moon’s polemical _Balance of Power: The Negro Vote_

(a typical reference is to the “political zombies who infest the

sub-Potomac region”). Report of the Civil Rights Commission and the

Southern Regional Council are indispensable.

For the absolute amateur, coming cold into the field of anthropology,

E. E. Evans-Pritchard’s BBC lectures, _Social Anthropology_, offer

a most congenial introduction. This should be followed, I suggest,

by Alfred Louis Kroeber’s _Anthropology_, originally published in

1923 and updated in 1948. It is hard work. Then, in a hard-driving

rush: Ralph Linton’s _The Tree of Culture_, Carleton S. Coon’s _The

Story of Man_, Hooton’s _Apes, Men and Morons_ and _Up from the

Ape_, Clyde Kluckhohn’s _Mirror for Man_; almost anything by Toynbee

and Breasted; and warming to the more immediate theme, Franz Boas’

_Anthropology and Modern Life_ (1928) and his _Race, Language and

Culture_ (1940). Boas was the great-granddaddy of the whole Liberal

movement in social anthropology; he influenced a generation or more

of dutiful followers. Melville Herskovits, of Northwestern, has

written (1943) an agreeable biography of him. It merits a reading.

And so do Herskovits’ own works, _The American Negro_ (1928) and his

more definitive _The Myth of the Negro Past_ (1958). Otto Klineberg’s

works are important: _Negro Intelligence and Selective Migration_

(1935) and the useful anthology, _Characteristics of the American

Negro_ (1944). The famous UNESCO pamphlet on race has been covered

in the text; Ruth Benedict and Gene Weltfish belong in a footnote.

A very small footnote. Ashley Montagu, a monstrously irritating

man, has to be read, or at least scratched: _Man: His First Million

Years_, _Human Heredity_, and _Man in Process_. This last work I

fetched home only a week ago. I do not like Ashley Montagu. Langston

Hughes’ _African Treasury_ is about what you would imagine Hughes

would put out. Better, on African background, are John Coleman

De Graft-Johnson’s _African Glory: The Story of Vanished Negro

Civilizations_ (1955) and Maurice Delafosse’s _The Negroes of Africa_

(1931). But the bibliography in this area is extensive, and it grows

more rapturous all the time. _The African Colonization Movement_,

by P. J. Staudenraus (1961) is as good a roundup of this early

nineteenth-century movement as I have come across.

In the text, I have called attention to Dr. Audrey M. Shuey’s

_Testing of Negro Intelligence_. Let me call repeated attention to

it here. This is an indispensable reference work, of unimpeachable

integrity, for any student who proposes seriously to investigate

Negro scores on intelligence tests. The student also should seek out

Dr. Henry E. Garrett’s _Great Experiments in Psychology_ (1951), and

he should get his subscription in to _Mankind Quarterly_, 1 Darnaway

St., Edinburgh 3, Scotland. At the University of Chicago, Dr. Dwight

J. Ingle has demonstrated a fierce and wonderful courage in admitting

unorthodox views to his _Perspectives in Biology and Medicine_, in

which Dr. Montagu has been recently skewered.

This gets me, by hop, skip and jump, to reference works in the area

of Constitutional history, law, and contemporary politics. The

_Federalist_, of course. Elliot’s _Debates_. Madison’s _Notes_.

Tocqueville. Jefferson’s Letters. Madison. There is no stopping

point. The biographies of Marshall and Washington. James Morton

Smith’s _Freedom’s Fetters_. Bibliography is futile. The student of

the Constitution will read a thousand works, and then read a thousand

more. He shouldn’t miss Charles Warren’s _The Supreme Court in U.S.

History_. Yale’s Fred Rodell is a derisive fellow; his _Nine Men_

is a fine, extended raspberry cheer, but it should be read. Most

of the members of the Court have been loquacious; they cannot keep

their tongues tied down. The law reviews fairly bulge with important

material. Robert B. McKay’s long essay in the _New York University

Law Review_ (June, 1956) is no help to my position, but it merits a

reading. Basic source material, of course, is available through the

indispensable _Race Relations Law Reporter_. The student interested

in getting both sides of this dispute should look up Senator

Eastland’s “Era of Judicial Tyranny,” available through the Citizens

Council, and Alfred J. Schweppe’s article in the American Bar

Association’s _Journal_ of February, 1958, “Enforcement of Federal

Court Decrees.” On the question of private schools, a biased and

snippy book by Donald Ross and Warren E. Gauerke, _If the Schools Are

Closed_, merits a reading. The two Emory professors are anti-private

school, but the source material is there. I have already mentioned

Charles J. Bloch’s _States Rights: The Law of the Land_; it is a

first-rate piece of work.

On the Fourteenth Amendment: Joseph B. James’ work is basic, _The

Framing of the Fourteenth Amendment_ (1956). See also Walter J.

Suthon’s article in the _Tulane Law Review_ at December, 1953, “The

Dubious Origin of the Fourteenth Amendment”; Horace E. Flack’s “The

Adoption of the Fourteenth Amendment,” in _John Hopkins Studies_

(1908), and Joseph F. Ingham’s “Unconstitutional Amendments,” in the

_Dickinson Law Review_ of March, 1929, among many other sources.

It is futile to attempt any bibliographical note on the specific

subject of school desegregation since 1954. The library of the

Southern Educational Reporting Service in Nashville is a storehouse

of material to be found nowhere else. I am indebted to Reed Sarratt

and his associates there for making its riches available to me.

Don Shoemaker’s _With All Deliberate Speed_; Harry Ashmore’s _The

Negro and the Schools_; and _Public Education in the South Today

and Tomorrow_, by Ernst W. Swanson and John A. Griffin (1955), are

basic references. Any serious study must take in the annual reports

of the various Southern State superintendents of public education.

Bill Simmons, the urbane and immensely attractive executive director

of the Citizens Council in Jackson, Miss., has a wealth of material

available; student debaters who get stuck with the Southern side of

the question should not hesitate to write him at the Plaza Building

in Jackson.

This is about all the bibliography I am up to. Any student who

delves into this subject necessarily will resort immediately to

the Periodical Index. It teems with magazine references. Offhand, I

know of not more than a dozen articles that present some aspects of

the traditional Southern view--this, out of _more than two thousand_

indexed articles supporting the integrationist view since 1954. Look

them up: Clifford Dowdey, in _Saturday Review_ of Oct. 9, 1954;

Senator Ervin, in _Look_ of April 3, 1956; Herbert Ravebel Sass,

in _Atlantic_ of November 1956; Tom Waring, in _Harper’s_, January

1956; Virginius Dabney, in _Life_ of Sept. 22, 1958; William F.

Buckley, Jr., in _Saturday Review_ of Nov. 11, 1961; Perry Morgan,

in _Esquire_ for January, 1962; Donald R. Davidson in the _Star

Weekly Magazine_ for Nov. 9, 1957. There may have been a few others.

The Citizens Council has a wealth of pamphlets, booklets, and other

ephemera available to the student who troubles to ask for reference

material. And of course the microfilmed resources of the Southern

Educational Reporting Service are invaluable.

I owe thanks to my right arm, Ann Lloyd Merriman; and to my publisher

in Richmond, D. Tennant Bryan; and to the librarians of the State Law

Library, the Library of Congress, and the state and city libraries

in Richmond; to my congenial masters at Collier Books; to Dr. Henry

E. Garrett; to John Riely, attorney, who made available to me the

briefs of all parties in the School Segregation Cases; to various

antagonists of the NAACP, among them Thurgood Marshall and Spotswood

Robinson III. And the day this book appears, in glancing over this

incomplete and sketchy note, I will think of a hundred other sources

and mentors to whom I shall ever be

Gratefully theirs,

J.J.K.

July, 1962.

FOOTNOTES:

[1] Together with No. 2, _Briggs et al._ v. _Elliott et al._, on

appeal from the United States District Court for the Eastern District

of South Carolina, argued December 9-10, 1952, reargued December

7-8, 1953; No. 4, _Davis et al._ v. _County School Board of Prince

Edward County, Virginia, et al._, on appeal from the United States

District Court for the Eastern District of Virginia, argued December

10, 1952, reargued December 7-8, 1953; and No. 10, _Gebhart et al_.

v. _Belton et al._, on certiorari to the Supreme Court of Delaware,

argued December 11, 1952, reargued December 9, 1953.

[2] In the Kansas case, _Brown_ v. _Board of Education_, the

plaintiffs are Negro children of elementary-school age residing

in Topeka. They brought this action in the United States District

Court for the District of Kansas to enjoin enforcement of a Kansas

statute which permits, but does not require, cities of more than

15,000 population to maintain separate school facilities for Negro

and white students. Kan. Gen. Stat. § 72-1724 (1949). Pursuant to

that authority, the Topeka Board of Education elected to establish

segregated elementary schools. Other public schools in the community,

however, are operated on a nonsegregated basis. The three-judge

District Court, convened under 28 U. S. C. §§ 2281 and 2284, found

that segregation in public education has a detrimental effect upon

Negro children, but denied relief on the ground that the Negro and

white schools were substantially equal with respect to buildings,

transportation, curricula, and educational qualifications of

teachers. 98 F. Supp. 797. The case is here on direct appeal under 28

U. S. C. § 1253.

In the South Carolina case, _Briggs_ v. _Elliott_, the plaintiffs

are Negro children of both elementary and high school age residing

in Clarendon County. They brought this action in the United States

District Court for the Eastern District of South Carolina to enjoin

enforcement of provisions in the state constitution and statutory

code which require the segregation of Negroes and whites in public

schools. S. C. Const., Art. XI, § 7; S. C. Code § 5377 (1942). The

three-judge District Court, convened under 28 U. S. C. §§ 2281 and

2284, denied the requested relief. The court found that the Negro

schools were inferior to the white schools and ordered the defendants

to begin immediately to equalize the facilities. But the court

sustained the validity of the contested provisions and denied the

plaintiffs admission to the white schools during the equalization

program. 98 F. Supp. 529. This Court vacated the District Court’s

judgment and remanded the case for the purpose of obtaining the

court’s views on a report filed by the defendants concerning the

progress made in the equalization program. 342 U. S. 350. On remand,

the District Court found that substantial equality had been achieved

except for buildings and that the defendants were proceeding to

rectify this inequality as well. 103 F. Supp. 920. The case is again

here on direct appeal under 28 U. S. C. § 1253.

In the Virginia case, _Davis_ v. _County School Board_, the

plaintiffs are Negro children of high school age residing in Prince

Edward County. They brought this action in the United States District

Court for the Eastern District of Virginia to enjoin enforcement of

provisions in the state constitution and statutory code which require

the segregation of Negroes and whites in public schools. Va. Const.,

§ 140; Va. Code § 22-221 (1950). The three-judge District Court,

convened under 28 U. S. C. §§ 2281 and 2284, denied the requested

relief. The court found the Negro school inferior in physical plant,

curricula, and transportation, and ordered the defendants forthwith

to provide substantially equal curricula and transportation and to

“proceed with all reasonable diligence and dispatch to remove” the

inequality in physical plant. But, as in the South Carolina case, the

court sustained the validity of the contested provisions and denied

the plaintiffs admission to the white schools during the equalization

program. 103 F. Supp. 337. The case is here on direct appeal under 28

U. S. C. § 1253.

In the Delaware case, _Gebhart_ v. _Belton_, the plaintiffs are

Negro children of both elementary and high school age residing

in New Castle County. They brought this action in the Delaware

Court of Chancery to enjoin enforcement of provisions in the state

constitution and statutory code which require the segregation of

Negroes and whites in public schools. Del. Const., Art. X, § 2;

Del. Rev. Code § 2631 (1935). The Chancellor gave judgment for

the plaintiffs and ordered their immediate admission to schools

previously attended only by white children, on the ground that

the Negro schools were inferior with respect to teacher training,

pupil-teacher ratio, extracurricular activities, physical plant, and

time and distance involved in travel. 87 A. 2d 862. The Chancellor

also found that segregation itself results in an inferior education

for Negro children (see note 10, _infra_,), but did not rest his

decision on that ground. _Id._, at 865. The Chancellor’s decree was

affirmed by the Supreme Court of Delaware, which intimated, however,

that the defendants might be able to obtain a modification of the

decree after equalization of the Negro and white schools had been

accomplished. 91 A. 2d 137, 152. The defendants, contending only that

the Delaware courts had erred in ordering the immediate admission of

the Negro plaintiffs to the white schools, applied to this Court for

certiorari. The writ was granted, 344 U. S. 891. The plaintiffs, who

were successful below, did not submit a cross-petition.

[3] 344 U. S. 1, 141, 891.

[4] 345 U. S. 972. The Attorney General of the United States

participated both Terms as _amicus curiae_.

[5] For a general study of the development of public education prior

to the Amendment, see Butts and Cremin, A History of Education in

American Culture (1953), Pts. I, II; Cubberley, Public Education in

the United States (1934 ed.), cc. II-XII. School practices current at

the time of the adoption of the Fourteenth Amendment are described in

Butts and Cremin, supra, at 269-275; Cubberley, _supra_, at 288-339,

408-431; Knight, Public Education in the South (1922), cc. VIII, IX.

See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871). Although

the demand for free public schools followed substantially the same

pattern in both the North and the South, the development in the

South did not begin to gain momentum until about 1850, some twenty

years after that in the North. The reasons for the somewhat slower

development in the South (_e.g._, the rural character of the South

and the different regional attitudes toward state assistance) are

well explained in Cubberley, _supra_, at 408-423. In the country as

a whole, but particularly in the South, the War virtually stopped

all progress in public education. _Id._, at 427-428. The low status

of Negro education in all sections of the country, both before and

immediately after the War, is described in Beale, A History of

Freedom of Teaching in American Schools (1941), 112-132, 175-195.

Compulsory school attendance laws were not generally adopted until

after the ratification of the Fourteenth Amendment, and it was not

until 1918 that such laws were in force in all the states. Cubberley,

_supra_, at 563-565.

[6] _Slaughter-House Cases_, 16 Wall. 36, 67-72 (1873); _Strauder_ v.

_West Virginia_, 100 U. S. 303, 307-308 (1880):

“It ordains that no State shall deprive any person of life, liberty,

or property, without due process of law, or deny to any person within

its jurisdiction the equal protection of the laws. What is this

but declaring that the law in the States shall be the same for the

black as for the white; that all persons, whether colored or white,

shall stand equal before the laws of the States, and, in regard to

the colored race, for whose protection the amendment was primarily

designed, that no discrimination shall be made against them by law

because of their color? The words of the amendment, it is true, are

prohibitory, but they contain a necessary implication of a positive

immunity, or right, most valuable to the colored race,--the right to

exemption from unfriendly legislation against them distinctively as

colored,--exemption from legal discriminations, implying inferiority

in civil society, lessening the security of their enjoyment of the

rights which others enjoy, and discriminations which are steps

towards reducing them to the condition of a subject race.”

See also _Virginia_ v. _Rives_, 100 U. S. 313, 318 (1880); _Ex parte

Virginia_, 100 U. S. 339, 344-345 (1880).

[7] The doctrine apparently originated in _Roberts_ v. _City of

Boston_, 59 Mass. 198, 206 (1850), upholding school segregation

against attack as being violative of a state constitutional guarantee

of equality. Segregation in Boston public schools was eliminated in

1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation

in public education has persisted in some communities until recent

years. It is apparent that such segregation has long been a

nationwide problem, not merely one of sectional concern.

[8] See also _Berea College_ v. _Kentucky_, 211 U. S. 45 (1908).

[9] In the _Cumming_ case, Negro taxpayers sought an injunction

requiring the defendant school board to discontinue the operation of

a high school for white children until the board resumed operation of

a high school for Negro children. Similarly, in the _Gong Lum_ case,

the plaintiff, a child of Chinese descent, contended only that state

authorities had misapplied the doctrine by classifying him with Negro

children and requiring him to attend a Negro school.

[10] In the Kansas case, the court below found substantial equality

as to all such factors. 98 F. Supp. 797, 798. In the South Carolina

case, the court below found that the defendants were proceeding

“promptly and in good faith to comply with the court’s decree.” 103

F. Supp. 920, 921. In the Virginia case, the court below noted that

the equalization program was already “afoot and progressing” (103 F.

Supp. 337, 341); since then, we have been advised, in the Virginia

Attorney General’s brief on reargument, that the program has now been

completed. In the Delaware case, the court below similarly noted that

the state’s equalization program was well under way. 91 A. 2d 137,

149.

[11] A similar finding was made in the Delaware case: “I conclude

from the testimony that in our Delaware society, State-imposed

segregation in education itself results in the Negro children, as a

class, receiving educational opportunities which are substantially

inferior to those available to white children otherwise similarly

situated.” 87 A. 2d 862, 865.

[12] K. B. Clark, Effect of Prejudice and Discrimination on

Personality Development (Midcentury White House Conference on

Children and Youth, 1950); Witmer and Kotinsky, Personality in the

Making (1952), c. VI; Deutscher and Chein, The Psychological Effects

of Enforced Segregation: A Survey of Social Science Opinion, 26

J. Psychol. 259 (1948); Chein, What are the Psychological Effects

of Segregation Under Conditions of Equal Facilities?, 3 Int. J.

Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs,

in Discrimination and National Welfare (MacIver, ed., 1949), 44-48;

Frazier, The Negro in the United States (1949), 674-681. And see

generally Myrdal, An American Dilemma (1944).

[13] See _Bolling_ v. _Sharpe_, _post_, p. 497, concerning the Due

Process Clause of the Fifth Amendment.

[14] “4. Assuming it is decided that segregation in public schools

violates the Fourteenth Amendment:

“(_a_) would a decree necessarily follow providing that, within the

limits set by normal geographic school districting, Negro children

should forthwith be admitted to schools of their choice, or

“(_b_) may this Court, in the exercise of its equity powers, permit

an effective gradual adjustment to be brought about from existing

segregated systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (_a_) and (_b_) are based,

and assuming further that this Court will exercise its equity powers

to the end described in question 4 (_b_),

“(_a_) should this Court formulate detailed decrees in these cases;

“(_b_) if so, what specific issues should the decrees reach;

“(_c_) should this Court appoint a special master to hear evidence

with a view to recommending specific terms for such decrees;

“(_d_) should this Court remand to the courts of first instance

with directions to frame decrees in these cases, and if so what

general directions should the decrees of this Court include and what

procedures should the courts of first instance follow in arriving at

the specific terms of more detailed decrees?”

[15] See Rule 42, Revised Rules of this Court (effective July 1,

1954).

[16] _Brown_ v. _Board of Education_, _ante_, p. 483.

[17] _Detroit Bank_ v. _United States_, 317 U. S. 329; _Currin_ v.

_Wallace_, 306 U. S. 1, 13-14; _Steward Machine Co._ v. _Davis_, 301

U. S. 548, 585.

[18] _Korematsu_ v. _United States_, 323 U. S. 214, 216;

_Hirabayashi_ v. _United States_, 320 U. S. 81, 100.

[19] _Gibson_ v. _Mississippi_, 162 U. S. 565, 591. Cf. _Steele_ v.

_Louisville & Nashville R. Co._, 323 U. S. 192, 198-199.

[20] Cf. _Hurd_ v. _Hodge_, 334 U. S. 24.

[21] 347 U. S. 483; 347 U. S. 497.

[22] Further argument was requested on the following questions, 347

U. S. 483, 495-496, n. 13, previously propounded by the Court:

“4. Assuming it is decided that segregation in public schools

violates the Fourteenth Amendment

“(_a_) would a decree necessarily follow providing that, within the

limits set by normal geographic school districting, Negro children

should forthwith be admitted to schools of their choice, or

“(_b_) may this Court, in the exercise of its equity powers, permit

an effective gradual adjustment to be brought about from existing

segregated systems to a system not based on color distinctions?

“5. On the assumption on which questions 4 (_a_) and (_b_) are based,

and assuming further that this Court will exercise its equity powers

to the end described in question 4(_b_),

“(_a_) should this Court formulate detailed decrees in these cases;

“(_b_) if so, what specific issues should the decrees reach;

“(_c_) should this Court appoint a special master to hear evidence

with a view to recommending specific terms for such decrees;

“(_d_) should this Court remand to the courts of first instance

with directions to frame decrees in these cases, and if so what

general directions should the decrees of this Court include and what

procedures should the courts of first instance follow in arriving at

the specific terms of more detailed decrees?”

[23] The cases coming to us from Kansas, South Carolina, and Virginia

were originally heard by three-judge District Courts convened under

28 U. S. C. §§ 2281 and 2284. These cases will accordingly be

remanded to those three-judge courts. See _Briggs_ v. _Elliott_, 342

U. S. 350.

[24] See _Alexander_ v. _Hillman_, 296 U. S. 222, 239.

[25] See _Hecht Co._ v. _Bowles_, 321, U. S. 321, 329-330.

TRANSCRIBER’S NOTE

There is no section heading ‘VIII’ in Part I of the original text.

Section VII is followed by section IX.

There is no section heading ‘V’ in Part II of the original text.

Section IV is followed by section VI.

Obvious typographical errors and punctuation errors have been

corrected after careful comparison with other occurrences within

the text and consultation of external sources.

Except for those changes noted below, all misspellings in the text,

and inconsistent or archaic usage, have been retained.

Pg 67: ‘a white policemen’ replaced by ‘a white policeman’.

Pg 219: ‘is a stonehouse’ replaced by ‘is a storehouse’.