THE CASE FROM CLARENDON
When the social needs demand one settlement
rather than another, there are times when we
must bend symmetry, ignore history and sacrifice
custom in the pursuit of other and larger
ends. From history and philosophy and custom,
we pass, therefore, to the force which in our
day and generation is becoming the greatest of
them all, the power of social justice which
finds its outlet and expression in the method
of sociology.... The final cause of law is
the welfare of society.--_Justice Benjamin N.
Cardozo._
Culmination of the effort of the Negroes of South Carolina to win
legal recognition of their rights to first class citizenship came
in 1954 in the Clarendon County school case. This was the key case
in the NAACP’s nationwide campaign to break down racial segregation
in public schools. Negro leaders purposely singled out Clarendon
County because it presented racially segregated schools in the worst
possible light. Located in the state’s black belt, the county in
1951 had approximately 23,000 Negroes and 8,000 whites. Enrolled in
its public schools were 6,531 Negro students as compared to 2,375
whites. Yet school expenditures totaled $395,329 for whites as against
$282,950 for Negroes.[49] In School District No. 22 (Summerton), the
district directly involved in the suit, there were 298 white pupils
and 2,259 Negro pupils.[50] In facilities such as libraries, lighting
fixtures, desks, play grounds, classroom space, lavatories, lunchrooms,
auditoriums and teacher ratio to pupil, the Negro schools were
decidedly inferior to those provided for whites. For example, the NAACP
pointed out in the hearing of the case before the federal court that
one of the Negro schools with 600 pupils had only two toilets, both
outdoors. Another school lacked drinking faucets and water had to be
brought in a bucket from the home of a neighboring minister.[51]
Clarendon is a typical South Carolina low country rural county and most
of its people, especially Negroes, are agricultural workers. In 1955
the _Nation_ described the county as a place where the people
talk of Citizens’ Councils and the “economic squeeze,”
where the Ku Klux Klan met with Bryant Bowles, head of the
National Association for the Advancement of White People,
as a featured speaker, where integration is freely referred
to as a “Communist-Catholic-Jewish plot,” where a place of
business displays the latest newspaper clippings showing
crimes of Negro against white, where private citizens
discuss the hated Ford Foundation along with the price of
tobacco, where the NAACP has only a small chapter and where
you hunt long and hard for a defender of the Negro.[52]
The Clarendon case, technically known as Harry Briggs, Jr., _et al._,
appellants, versus R. W. Elliott, _et al._, appellees, had its origins
in 1948 when a group of Negro citizens brought suit in federal court to
require state and county officials to provide school buses for Negro
pupils. Federal District Judge J. Waties Waring dismissed this suit on
the ground that the state as a governmental unit did not supply school
buses for any students. The following year Negro parents in Clarendon
petitioned authorities to bring Negro school facilities up to the
standards of the county’s white schools. The petition threatened legal
action if equality were not provided. In May, 1950, citing failure
of local officials to equalize school facilities, a suit was filed
asking that school authorities be compelled to provide equality. In
December, 1950, this suit was dropped and another, filed by forty Negro
parents, attacked segregation _per se_ as a violation of the Fourteenth
Amendment and asked the abolition of all segregation in public schools
based on race.[53] The suit was filed under NAACP auspices.
In May, 1951, the case was heard by a special three-judge court
presided over by Federal Circuit Judge John J. Parker of North Carolina
and District Judges George Bell Timmerman, Sr., of Columbia and J.
Waties Waring of Charleston. The suit represented the first all-out
legal attack in the deep South on the system of racial segregation
on the public school level. It was clearly a test case; the ruling
would provide a basis for future court decisions in similar cases. The
appellants were represented by Thurgood Marshall, chief counsel for the
NAACP; the appellees by attorneys Robert McC. Figg of Charleston and
S. Emory Rogers of Summerton. Figg is an able Charleston corporation
lawyer; Rogers, a determined defender of white supremacy at any price,
was attorney for the Summerton school board.
In the arguments before the court, Marshall sought to prove first that
the separate school facilities provided Negroes in District 22 were
in fact physically unequal and second that segregation _per se_ was
discriminatory and therefore a violation of the Fourteenth Amendment.
Inasmuch as school officials readily admitted that the facilities
then offered Negroes in Clarendon were unequal, Marshall concentrated
on sociological and psychological arguments to support his second
contention. He argued that segregation invariably resulted in the
development of “psychological roadblocks” which prevented Negro pupils
from achieving “full absorption” of the educational process.[54]
To buttress this position, Marshall introduced what the late Walter
White, then executive secretary of the NAACP, thought “the most
impressive array of authorities ever assembled to testify as experts on
the unreasonableness of segregation.” Their arguments, he said, were
“irrefutable.”[55] The “experts” were half a dozen social scientists
from such universities as Harvard, Columbia, Vassar and Howard. They
held that segregation resulted in “discordant” education that caused
“moral confusion” for both whites and Negroes. Amongst Negroes it
resulted in “a lowering of self-esteem, a strengthening of resentment
and hostility” and a personality development that emphasized “a desire
to escape or withdraw from social participation.” Amongst white
children segregation developed a feeling of guilt caused by their being
taught simultaneously both the doctrine of brotherly love and the
practice of unbrotherly racial segregation.[56] Segregation was said to
be building into the Negro “the very characteristics” which were then
used to justify prejudice.
The counter case presented by Clarendon school officials contained
three basic points. First, they maintained that segregation _per
se_ was not violative of the Fourteenth Amendment as it had been
recognized as legal by the courts, Congress and the governments of
seventeen states. The only condition that could be legally demanded
was that the segregated facilities be substantially equal. Attorney
Figg readily admitted that school facilities then being offered Negroes
in the county were unequal but asked that the court allow the state a
“reasonable” time in which to equalize them. South Carolina, he pointed
out, was in the midst of a statewide equalization program. The second
argument held that school segregation statutes were “a valid exercise
of legislative power,” a matter of state legislative policy rather than
of constitutional right. No legal compulsion could oblige a state to
accept “scientific opinion” that its school program “must be geared
to personality development.” The third contention of appellees was
that to disturb drastically the racial _status quo_ in the deep South
would produce “dangerous tensions and unrest.” Racially segregated
school facilities, Figg insisted, were the “normal” result of a racial
conflict heritage in the state of South Carolina.[57]
The court ruled two to one against the appellants. Judges Parker
and Timmerman held that segregation _per se_ was not a violation of
the Fourteenth Amendment. They said, however, that “the educational
facilities and opportunities” provided both races “must be equal.”
Equality had to be provided “promptly” and “in good faith.”
Consequently school officials were directed to report to the court
after six months as to what actions were being taken to provide
equality. In rejecting Marshall’s line of argumentation the court
asserted that judges had “no more right to read their ideas of
sociology into the Constitution than their ideas of economics.”
Judge Waring dissented vigorously. The majority opinion, he wrote, was
“unreasonable, unscientific, and based on unadulterated prejudice.”
He condemned the “sadistic insistence of the ‘white supremacists’ in
declaring that their will must be imposed irrespective of rights of
other citizens.”[58]
Governor James F. Byrnes hailed the majority ruling upholding school
segregation as “unanswerable.” The court’s “well-reasoned opinion,” he
maintained, completely vindicated the separate-but-equal doctrine.[59]
II
Only slowly had white South Carolina awakened to the threat to legal
school segregation contained in the repeated petitions and suits of
Clarendon Negroes. By the time the state legislature convened in
January, 1951, the menace was fully realized. A definite fear had
developed that the courts might rule in favor of the Negro petitioners.
Basis for this fear was a long line of recent United States Supreme
Court rulings outlawing segregation in state university graduate and
professional schools even when facilities provided Negroes were in fact
substantially equal to those for whites. The legislators and other
state officials clearly recognized that by no criteria were white and
Negro schools even remotely equal, not only in Clarendon but over the
entire state. White South Carolina’s only hope, they reasoned, lay in
an immediate and far reaching program to provide equal facilities for
each race. At the same time certain precautionary measures had to be
taken against the possibility that the courts might hold segregation
_per se_ illegal.
Leadership in this program fell to Governor James F. Byrnes, who, after
a long career in the federal government, including a short period of
service on the Supreme Court, had broken with President Truman and the
national Democratic Party and had returned to South Carolina to vent
his frustration against the national government and the Democratic
Party. Elected governor in 1950, he was inaugurated in January, 1951.
Almost immediately Byrnes began a long range program which was to
provide a basis for the state’s defense of the racial _status quo_ and
the doctrine of separate-but-equal schools. The program subsequently
was enacted by the 1951 state legislature. The position of Byrnes,
as well as that of many of the state’s other leaders, was summarized
in a series of the governor’s speeches in early 1951. South Carolina,
he announced, would not then “nor for some years to come mix white
and colored children” in public schools. To prevent this situation
the state would, if necessary, “reluctantly” abandon its public
school system. “A lawful way” would be found to educate all children
“and at the same time provide separate schools for the races.” While
conceding the inferiority of Negro schools, Byrnes insisted that the
educational crisis facing the state was caused by “the politicians
in Washington and the Negro agitators in South Carolina” seeking to
alter the “Southern way of life.” But they would find that “what a
Carpetbag government could not do in the Reconstruction period” was
likewise impossible in 1951. The governor would protect the “innocent
Colored children,” the victims of those elements which sought to end
segregation. With a prescience characteristic of white spokesmen
for racial separation, he insisted that “the overwhelming majority
of colored people in this state” did not want integrated schools.
Byrnes denied that new school policies were based on the expediency
of necessity rather than on high principle. He righteously observed
shortly after the district court ruling that “had there been no suit
... I would have urged this school program to help the white and
colored children” of the state.[60]
The most important undertaking in the Byrnes educational approach was
the beginning of a tremendous school construction program. The cost
was estimated at $75,000,000 though the amount actually spent on the
project by 1957 was more than double the original figure. To finance
new school construction, Byrnes secured legislative passage of a three
percent sales tax.[61] This program, in which more than half the funds
were spent for Negro schools, had the result of giving the Negroes
better physical school facilities in some localities than those of the
whites.
In addition to these constructive measures, the state legislature,
upon Byrnes’s recommendation, enacted several “preparedness measures”
for use in the event the federal courts outlawed segregation. Local
school officials were given authority to sell or lease school property.
Churches or other private groups thus would be enabled to maintain
schools under some sort of private school plan. Another strategem
provided that pupils could be transferred from one school to another
only with the approval of the superintendents of both schools
affected.[62]
A measure that caused understandable hesitation on the part of many
public officials and civic groups was the repeal of the constitutional
provision requiring a state supported public school system. The NAACP
and other Negro groups vigorously opposed repeal, but in February,
1952, the legislature approved a referendum on the proposal. In the
referendum, held the following November, 68 percent of those voting
favored repeal. Opponents of the measure considered the 32 percent
against repeal something of a moral victory for their side.[63]
To coordinate state policy on the segregation issue, the legislature
created a special 15-member committee. This group came to be known as
the Gressette Committee, after its chairman, State Senator L. Marion
Gressette, a fifty-three year old Phi Beta Kappa, farmer-lawyer from
the low country Calhoun County. The committee had a double function.
First, it was directed to study the conditions that would confront the
state should the federal courts direct an end to segregation in public
schools. Second, it was to recommend to the legislature a course of
action which would “alleviate the serious condition which would result”
from such an eventuality.[64] This committee, after assisting Byrnes in
developing his program in 1951, was inactive from that time until the
Supreme Court ruling of May 17, 1954.
III
Following the circuit court’s ruling the Clarendon case was immediately
appealed to the United States Supreme Court. By the time the highest
tribunal considered the case, the six months period allowed by the
circuit court for school officials to furnish _bona fide_ equality
for Negroes had elapsed. Consequently, on January 26, 1952, the case
was remanded to the circuit court which was directed to take whatever
action it deemed appropriate in view of its findings. In the meanwhile
Judge Waring had retired and had been replaced on the court by Judge
Armisted M. Dobie of Virginia. At the rehearing counsel for the school
officials reported on the steps taken by the county and on other
plans contemplated under the statewide school equalization program.
These plans, when completed, would provide equality in all areas for
white and Negro schools, claimed school authorities. Though equality
admittedly as yet had not been attained, such would be forthcoming
within a “reasonable” time. Accepting these arguments at face value,
the circuit court ruled unanimously that “the defendants have complied
with the decree of the court to equalize facilities as soon as humanly
possible and no good could be accomplished for anyone” by ordering an
end to segregation.[65] The NAACP again immediately appealed to the
Supreme Court.
Arguments before the Supreme Court took place in December, 1952, in
conjunction with four similar cases. Clarendon County was represented
by John W. Davis, noted constitutional lawyer and Democratic
presidential candidate in 1924. Davis, a twentieth century “Northern
man with Southern principles,” based his case mainly on grounds of
constitutionalism and states rights. “What is the great national policy
underlying this whole question?” he asked. “Is it not that the very
strength and fiber of our federal system is local self-government
in those matters for which local action is competent?”[66] Again
the appellees stressed three main points. They maintained that the
state was proceeding to remove “all inequalities between its white
and colored schools,” as had been found by the lower court. Further,
school authorities argued that the legality of school segregation
had been exercised and recognized so continuously that the question
was “no longer open for debate.” As for the testimony of “sundry
academic persons” offered in opposition to segregation, such “opinions”
presented questions of legislative policy only and formed no sufficient
basis for any conclusions on the subject, least of all for a judicial
finding.[67]
Thurgood Marshall, chief counsel for appellants, presented the same
arguments he had used in the lower courts.
Unable to arrive at a decision on the basis of arguments advanced at
the first hearing, the Supreme Court in June, 1953, asked for further
pleadings on five questions. These involved essentially two points:
(1) In the light of the history of the Fourteenth Amendment, was
school segregation _per se_ violative of that amendment? (2) Assuming
that segregation was unconstitutional, would it necessarily follow
that schools should be integrated “forthwith” or could the Court in
the exercise of its equity powers remit the cases to lower courts and
permit a “gradual adjustment” to integration?
Answers to these questions were prepared under the supervision of T.
C. Callison, South Carolina’s Attorney General. The state maintained
that the “overwhelming preponderance of the evidence” demonstrated
that the Fourteenth Amendment could not be construed as forbidding
racial segregation. In reply to the second query, the state held
that on the assumption stated, the Court could permit gradual
integration to be carried out within broad policy limitations by the
lower federal courts. However, in this connection, the state argued
that even assuming that the courts could declare segregated schools
unconstitutional, it was not within the judicial power to determine
what, if any, non-segregated system should be substituted in their
place.[68]
IV
Chief Justice Earl Warren delivered the Court’s unanimous opinion,
a milestone in the American Negro’s struggle for human dignity and
freedom.[69] After reviewing the background of the various cases under
consideration, the Court declared that the history of the Fourteenth
Amendment, as it applied to school segregation, was “inconclusive.”
Furthermore, said the Chief Justice, the school segregation issue had
never been definitely settled by the Supreme Court. Recent decisions
concerning inequality on graduate and professional levels of schooling
had not faced the basic issue--the legal status of segregation _per
se_. Consequently the Court would attempt conclusively to settle the
problem.
In premising its decision, the Court turned not to “tangible factors”
but to the overall “effect of segregation on education.” On this basis
it asked: “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?” The reply was direct: “We believe
that it does.” Accepting the testimony presented in the lower court
by the social scientists, the Court found that segregation of Negro
children “from others of similar age and qualifications solely because
of their race” generated feelings of inferiority concerning their
status in the community that might affect “their hearts and minds in a
way unlikely ever to be undone.” In the light of such a condition the
Court concluded that “in the field of public education the doctrine of
‘separate but equal’ has no place. Separate educational facilities are
inherently unequal.”
The cases were not immediately disposed of since no implementing decree
was included in this ruling. Recognizing the revolutionary nature of
the transition being ordered, the Court, departing from established
legal tradition, restored the cases to the docket and asked all
affected states, the NAACP and the United States Attorney General to
appear as friends of the Court and present further argument on how best
to implement the decision. The state of South Carolina refused to come
before the Court in this capacity. Attorney General Callison thought
that such an appearance might indicate that the state was bringing
itself “within the jurisdiction of the Court in this particular
case.”[70] The state, as such, would do nothing that might make the
Court’s decision specifically applicable to all school districts.
Clarendon officials, however, did file a brief with the Court. They
urged that the case be remanded to the lower federal court to permit
school authorities “the opportunity of presenting their problems
fully to that tribunal and of appealing to its equitable discretion in
connection with their further handling of its affairs.”[71] Attorney
Figg asked the Court to give the Clarendon authorities time to allow
for “community acceptance.” But privately the less suave Attorney
Rogers maintained that there was going to be no integration in South
Carolina.
The Supreme Court’s implementing decree was not issued until May
31, 1955, a little over a year after its momentous decision.[72]
It recognized the existence of “varied local school problems.”
Consequently federal district courts were given the responsibility
within their local areas for supervising the compliance with the
Court’s original decision. While giving attention to local conditions,
the district courts were to require school officials to make “a prompt
and reasonable start toward compliance” with the original ruling.
Delays in beginning integration were justifiable only when “necessary
in the public interest” and “consistent with good faith compliance.”
In proceeding “with all deliberate speed,” school officials were to be
allowed consideration for such factors as “physical condition of the
school plant, the school transportation system, personnel, revision
of school districts ... and a revision of local laws and regulations”
requiring segregation. This decision was applicable in the strict sense
only to those school districts immediately involved in the litigation.
No allowance was made for applying its provisions to other school
districts. Segregation therefore would be erased only when action
voluntarily was taken by school authorities or when directed by federal
courts following petition by aggrieved groups upon failure of local
officials to follow the spirit of the decision.
On July 15, 1955, the Federal Circuit Court, composed of Judges Parker,
Timmerman and Dobie, met in Columbia and disposed of the Clarendon case
in conformity with the Supreme Court ruling. In an unanimous decision
the three judges restrained Summerton school officials “from refusing
on account of race to admit to any school under their supervision any
child qualified to enter such school, from and after such time as they
may have made the necessary arrangements for admission of children
to such schools on a non-discriminatory basis with all deliberate
speed.”[73]
There the case rested in the spring of 1958. The school officials have
not yet “made the necessary arrangements” to end segregation, and
Negro parents, fearing among other things that the public schools will
be closed if precipitate action is taken, have not pushed the matter
further.