CHAPTER II

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.

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