Court Decisions

Briggs v. Elliott (1)
U.S. District Court, Eastern District of South Carolina
June 23, 1951

Brown v. Board of Education of Topeka
U.S. District Court, Kansas
August 3, 1951

Davis v. County School Board of Prince Edward County
U.S. District Court, Eastern District of Virginia
March 7, 1952

Briggs v. Elliott (2)
U.S. District Court, Eastern District of South Carolina
March 13, 1952

Belton (Bulah) v. Gebhart
Supreme Court of Delaware
August 28, 1952

Brown v. Board of Education
U.S. Supreme Court
May 17, 1954

Bolling v. Sharpe
U.S. Supreme Court
May 17, 1954

 

Briggs v. Elliott (1)

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98 F. Supp. 529 (1951)
BRIGGS et al.
v.
ELLIOTT et al.
Civ. A. No. 2657.

United States District Court E. D. South Carolina, Charleston Division.
Heard May 28, 1951.
Decided June 23, 1951.

*530 Thurgood Marshall, Robert L. Carter, New York City, Harold R. Boulware, Columbia, S. C., Spottswood W. Robinson, III, Richmond, Va., Arthur Shores, Birmingham, Ala., A. T. Walden, Atlanta, Ga., for plaintiffs.

T. C. Callison Atty. Gen., of South Carolina, Robert McC. Figg, Jr., Charleston, S. C., S. E. Rogers, Summerton, S. C., for defendants.

Before PARKER, Circuit Judge, and WARING and TIMMERMAN, District Judges.

PARKER, Circuit Judge.

This is a suit for a declaratory judgment and injunctive relief in which it is alleged that the schools and educational facilities provided for Negro children in School District No. 22 in Clarendon County, South Carolina, are inferior to those provided for white children in that district and that this amounts to a denial of the equal protection of the laws guaranteed them by the Fourteenth Amendment to the Federal Constitution, and further that the segregation of Negro and white children in the public schools, required by Article 11, section 7 of the Constitution of South Carolina and section 5377 of the Code of Laws of that state,[1] is of itself violative of the equal protection clause of the Fourteenth Amendment. Plaintiffs are Negro children of school age who are entitled to attend *531 the public schools in District No. 22 in Clarendon County, their parents and guardians. Defendants are the school officials who, as officers of the state, have control of the schools in the district. A court of three judges has been convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284, the evidence offered by the parties has been heard and the case has been submitted upon the briefs and arguments of counsel.

At the beginning of the hearing the defendants admitted upon the record that "the educational facilities, equipment, curricula and opportunities afforded in School District No. 22 for colored pupils * * * are not substantially equal to those afforded for white pupils". The evidence offered in the case fully sustains this admission. The defendants contend, however, that the district is one of the rural school districts which has not kept pace with urban districts in providing educational facilities for the children of either race, and that the inequalities have resulted from limited resources and from the disposition of the school officials to spend the limited funds available "for the most immediate demands rather than in the light of the overall picture". They state that under the leadership of Governor Byrnes the Legislature of South Carolina has made provision for a bond issue of $75,000,000 with a three per cent sales tax to support it for the purpose of equalizing educational opportunities and facilities throughout the state and of meeting the problem of providing equal educational opportunities for Negro children where this had not been done. They have offered evidence to show that this educational program is going forward and that under it the educational facilities in the district will be greatly improved for both races and that Negro children will be afforded educational facilities and opportunities in all respects equal to those afforded white children.

There can be no question but that where separate schools are maintained for Negroes and whites, the educational facilities and opportunities afforded by them must be equal. The state may not deny to any person within its jurisdiction the equal protection of the laws, says the Fourteenth Amendment; and this means that, when the state undertakes public education, it may not discriminate against any individual on account of race but must offer equal opportunity to all. As said by Chief Justice Hughes in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349, 59 S. Ct. 232, 236, 83 L. Ed. 208. "The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State." See also Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114; Corbin v. County School Board of Pulaski County, 4 Cir., 177 F.2d 924; Carter v. School Board of Arlington County, Va., 4 Cir., 182 F.2d 531; McKissick v. Carmichael, 4 Cir., 187 F.2d 949. We think it clear, therefore, that plaintiffs are entitled to a declaration to the effect that the school facilities now afforded Negro children in District No. 22 are not equal to the facilities afforded white children in the district and to a mandatory injunction requiring that equal facilities be afforded them. How this shall be done is a matter for the school authorities and not for the court, so long as it is done in good faith and equality of facilities is afforded; but it must be done promptly and the court in addition to issuing an injunction to that effect will retain the cause upon its docket for further orders and will require that defendants file within six months a report showing the action that has been taken by them to carry out the order.

Plaintiffs ask that, in addition to granting them relief on account of the inferiority of the educational facilities furnished them, we hold that segregation of the races in the public schools, as required by the Constitution and statutes of South Carolina, is of itself a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, and that we enjoin the enforcement of the constitutional provision and statute requiring it and by our injunction require defendants to admit Negroes to schools to which white students *532 are admitted within the district. We think, however, that segregation of the races in the public schools, so long as equality of rights is preserved, is a matter of legislative policy for the several states, with which the federal courts are powerless to interfere.

One of the great virtues of our constitutional system is that, while the federal government protects the fundamental rights of the individual, it leaves to the several states the solution of local problems. In a country with a great expanse of territory with peoples of widely differing customs and ideas, local self government in local matters is essential to the peace and happiness of the people in the several communities as well as to the strength and unity of the country as a whole. It is universally held, therefore, that each state shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the federal Constitution, how it shall exercise the police power, i. e. the power to legislate with respect to the safety, morals, health and general welfare. And in no field is this right of the several states more clearly recognized than in that of public education. As was well said by Mr. Justice Harlan, speaking for a unanimous court in Cumming v. County Board of Education, 175 U.S. 528, 545, 20 S. Ct. 197, 201, 44 L. Ed. 262, "while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, 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."

It is equally well settled that there is no denial of the equal protection of the laws in segregating children in the schools for purposes of education, if the children of the different races are given equal facilities and opportunities. The leading case on the subject in the Supreme Court is Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 1140, 41 L. Ed. 256, which involved segregation in railroad trains, but in which the segregation there involved was referred to as being governed by the same principle as segregation in the schools. In that case the Court said: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced."

Later in the opinion the Court said: "So far, then, as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order." (Italics supplied.)

Directly in point and absolutely controlling upon us so long as it stands unreversed by the Supreme Court is Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 93, 72 L. Ed. 172, in which the complaint was that a child of Chinese parentage was excluded from a school maintained for white children under a segregation law and was permitted to enter only a school maintained for colored children. Although attempt is made to distinguish *533 this case, it cannot be distinguished. The question as to the validity of segregation in the public schools on the ground of race was squarely raised, the Fourteenth Amendment was relied upon as forbidding segregation and the issue was squarely met by the Court. What was said by Chief Justice Taft speaking for a unanimous court, is determinative of the question before us. Said he:

"The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry, born in this country and a citizen of the United States, the equal protection of the laws, by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow or black races.

"The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear. * * *

"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. Roberts v. City of Boston, 5 Cush. (Mass.) 198, 206, 208, 209; State ex rel. Garnes v. McCann, 21 Ohio St. 198, 210; People ex rel. King v. Gallagher, 93 N.Y. 438; People ex rel. Cisco v. School Board, 161 N.Y. 598, 56 N.E. 81, 48 L.R.A. 113; Ward v. Flood, 48 Cal. 36; Wysinger v. Crookshank, 82 Cal. 588, 590, 23 P. 54; Reynolds v. Board of Education, 66 Kan. 672, 72 P. 274; McMillan v. School Committee, 107 N.C. 609, 12 S.E. 330, 10 L.R.A. 823; Cory v. Carter, 48 Ind. 327; Lehew v. Brummell, 103 Mo. 546, 15 S.W. 765, 11 L.R.A. 828; Dameron v. Bayless, 14 Ariz. 180, 126 P. 273; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355; Bertonneau v. Board, 3 Woods 177, 3 Fed.Cas. 294, [Case] No. 1,361; United States v. Buntin (C.C.), 10 F. 730, 735; Wong Him v. Callahan (C.C.), 119 F. 381.

"In Plessy v. Ferguson, 163 U.S. 537, 544, 545, 16 S. Ct. 1138, 1140, 41 L. Ed. 256, in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separation of the white and colored races in railway coaches, a more difficult question than this, this court, speaking of permitted race separation, said:

"`The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.'

* * * * * *

"Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment." (Italics supplied.)

Only a little over a year ago, the question was before the Court of Appeals of the District of Columbia in Carr v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14, 16, a case involving the validity of segregation within the District, and the whole matter was exhaustively explored in the light of history and the pertinent decisions in an able opinion by Judge Prettyman, who said:

"It is urged that the separation of the races is itself, apart from equality or inequality of treatment, forbidden by the Constitution. The question thus posed is whether the Constitution lifted this problem out of the hands of all legislatures and settled it. We do not think it did. Since the beginning of human history, no circumstance has given rise to more difficult and delicate problems than has the coexistence *534 of different races in the same area. Centuries of bitter experience in all parts of the world have proved that the problem is insoluble by force of any sort. The same history shows that it is soluble by the patient processes of community experience. Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstance. We do not believe that the makers of the first ten Amendments in 1789 or of the Fourteenth Amendment in 1866 meant to foreclose legislative treatment of the problem in this country.

"This is not to decry efforts to reach that state of common existence which is the obvious highest good in our concept of civilization. It is merely to say that the social and economic interrelationship of two races living together is a legislative problem, as yet not solved, and is not a problem solved fully, finally and unequivocally by a fiat enacted many years ago. We must remember that on this particular point we are interpreting a constitution and not enacting a statute.

"We are not unmindful of the debates which occurred in Congress relative to the Civil Rights Act of April 9, 1866, the Fourteenth Amendment, and the Civil Rights Act of March 1, 1875. But the actions of Congress, the discussion in the Civil Rights cases, and the fact that in 1862, 1864, 1866 and 1874 Congress, as we shall point out in a moment, enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia, conclusively support our view of the Amendment and its effect.

"The Supreme Court has consistently held that if there be an `equality of the privileges which the laws give to the separated groups', the races may be separated. That is to say that constitutional invalidity does not arise from the mere fact of separation but may arise from an inequality of treatment. Other courts have long held to the same effect."

It should be borne in mind that in the above cases the courts have not been dealing with hypothetical situations or mere theory, but with situations which have actually developed in the relationship of the races throughout the country. Segregation of the races in the public schools has not been confined to South Carolina or even to the South but prevails in many other states where Negroes are present in large numbers. Even when not required by law, it is customary in many places. Congress has provided for it by federal statute in the District of Columbia; and seventeen of the states have statutes or constitutional provisions requiring it. They are Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.[2] And the validity of legislatively requiring segregation in the schools has been upheld wherever the question has been raised. See Wong Him v. Callahan, C. C., 119 F. 381; United States v. Buntin, C.C., 10 F. 730; Bertonneau v. Board of Directors, 3 Fed.Cas. 294, No. 1,361; Dameron v. Bayless, 14 Ariz. 180, 126 P. 273; Maddox v. Neal, 45 Ark. 121, 55 Am.Rep. 540; Ward v. Flood, 48 Cal. 36, 17 Am. Rep. 405; Cory v. Carter, 48 Ind. 327, 17 Am.Rep. 738; Graham v. Board of Education, 153 Kan. 840, 114 P.2d 313; Richardson v. Board of Education, 72 Kan. 629, 84 P. 538; Reynolds v. Board of Education, 66 Kan. 672, 72 P. 274; Chrisman v. Mayor of City of Brookhaven, 70 Miss. 477, 12 So. 458; Lehew v. Brummell, 103 Mo. 546, 15 S.W. 765, 11 L.R.A. 828, 23 Am.St.Rep. 895; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 8 Am.Rep. 713; People ex rel. Cisco v. School Board, 161 N.Y. 598, 56 N.E. 81, 48 L.R.A. 113; People v. Gallagher, 93 N.Y. 438, 45 Am.Rep. 232; McMillan v. School Committee, 107 N.C. 609, 12 S.E. 330, 10 L.R.A. 823; State ex rel. Garnes v. McCann, 21 Ohio St. 198; Board of *535 Education v. Board of Com'rs, 14 Okl. 322, 78 P. 455; Martin v. Board of Education, 42 W.Va. 514, 26 S.E. 348.[3] No cases have been cited to us holding that such legislation is violative of the Fourteenth Amendment. We know of none, and diligent search of the authorities has failed to reveal any.

Plaintiffs rely upon expressions contained in opinions relating to professional education such as Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114, McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149, and McKissick v. Carmichael, 4 Cir., 187 F.2d 949, where equality of opportunity was not afforded. Sweatt v. Painter, however, instead of helping them, emphasizes that the separate but equal doctrine of Plessy v. Ferguson, has not been overruled, since the Supreme Court, although urged to overrule it, expressly refused to do so and based its decision on the ground that the educational facilities offered Negro law students in that case were not equal to those offered white students. The decision in McKissick v. Carmichael, was based upon the same ground. The case of McLaurin v. Oklahoma State Regents, involved humiliating and embarrassing treatment of a Negro graduate student to which no one should have been required to submit. Nothing of the sort is involved here.

The problem of segregation as applied to graduate and professional education is essentially different from that involved in segregation in education at the lower levels. In the graduate and professional schools the problem is one of affording equal educational facilities to persons sui juris and of mature personality. Because of the great expense of such education and the importance of the professional contacts established while carrying on the educational process, it is difficult for the state to maintain segregated schools for Negroes in this field which will afford them opportunities for education and professional advancement equal to those afforded by the graduate and professional schools maintained for white persons. What the courts have said, and all they have said in the cases upon which plaintiffs rely is that, notwithstanding these difficulties, the opportunity afforded the Negro student must be equal to that afforded the white student and that the schools established for furnishing this instruction to white persons must be opened to Negroes if this is necessary to give them the equal opportunity which the Constitution requires.

The problem of segregation at the common school level is a very different one. At this level, as good education can be afforded in Negro schools as in white schools and the thought of establishing professional contacts does not enter into the picture. Moreover, education at this level is not a matter of voluntary choice on the part of the student but of compulsion by the state. The student is taken from the control of the family during school hours by compulsion of law and placed in control of the school, where he must associate with his fellow students. The law thus provides that the school shall supplement the work of the parent in the training of the child and in doing so it is entering a delicate field and one fraught with tensions and difficulties. In formulating educational policy at the common school level, therefore, the law must take account, not merely of the matter of affording instruction to the student, but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence. If public education is to have the support of the people through their legislatures, it must not go contrary to what they deem for the best interests of their children.

There is testimony to the effect that mixed schools will give better education and a better understanding of the community in which the child is to live than segregated schools. There is testimony, on the other hand, that mixed schools will result in racial friction and tension and that the only practical way of conducting *536 public education in South Carolina is with segregated schools. The questions thus presented are not questions of constitutional right but of legislative policy, which must be formulated, not in vacuo or with doctrinaire disregard of existing conditions, but in realistic approach to the situations to which it is to be applied. In some states, the legislatures may well decide that segregation in public schools should be abolished, in others that it should be maintained all depending upon the relationships existing between the races and the tensions likely to be produced by an attempt to educate the children of the two races together in the same schools. The federal courts would be going far outside their constitutional function were they to attempt to prescribe educational policies for the states in such matters, however desirable such policies might be in the opinion of some sociologists or educators. For the federal courts to do so would result, not only in interference with local affairs by an agency of the federal government, but also in the substitution of the judicial for the legislative process in what is essentially a legislative matter.

The public schools are facilities provided and paid for by the states. The state's regulation of the facilities which it furnishes is not to be interfered with unless constitutional rights are clearly infringed. There is nothing in the Constitution that requires that the state grant to all members of the public a common right to use every facility that it affords. Grants in aid of education or for the support of the indigent may properly be made upon an individual basis if no discrimination is practiced; and, if the family, which is the racial unit, may be considered in these, it may be considered also in providing public schools. The equal protection of the laws does not mean that the child must be treated as the property of the state and the wishes of his family as to his upbringing be disregarded. The classification of children for the purpose of education in separate schools has a basis grounded in reason and experience; and, if equal facilities are afforded, it cannot be condemned as discriminatory for, as said by Mr. Justice Reed in New York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 578, 58 S. Ct. 721, 724, 82 L.Ed. 1024: "It has long been the law under the Fourteenth Amendment that `a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it.'"[4]

We are cited to cases having relation to zoning ordinances, restrictive covenants in deeds and segregation in public conveyances. It is clear, however, that nothing said in these cases would justify our disregarding the great volume of authority relating directly to education in the public schools, which involves not transient contacts, but associations which affect the interests of the home and the wishes of the people with regard to the upbringing of their children. As Chief Justice Taft pointed out in Gong Lum v. Rice, supra [275 U.S. 78, 48 S. Ct. 93], "a more difficult" question is presented by segregation in public conveyances than by segregation in the schools.

We conclude, therefore, that if equal facilities are offered, segregation of the races in the public schools as prescribed by the Constitution and laws of South Carolina is not of itself violative of the *537 Fourteenth Amendment. We think that this conclusion is supported by overwhelming authority which we are not at liberty to disregard on the basis of theories advanced by a few educators and sociologists. Even if we felt at liberty to disregard other authorities, we may not ignore the unreversed decisions of the Supreme Court of the United States which are squarely in point and conclusive of the question before us. As said by the Court of Appeals of the Fourth Circuit in Boyer v. Garrett, 183 F.2d 582, a case involving segregation in a public playground, in which equality of treatment was admitted and segregation was attacked as being per se violative of the Fourteenth Amendment: "The contention of plaintiffs is that, notwithstanding this equality of treatment, the rule providing for segregation is violative of the provisions of the federal Constitution. The District Court dismissed the complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; and the principal argument made on appeal is that the authority of Plessy v. Ferguson has been so weakened by subsequent decisions that we should no longer consider it as binding. We do not think, however, that we are at liberty thus to disregard a decision of the Supreme Court which that court has not seen fit to overrule and which it expressly refrained from reexamining, although urged to do so, in the very recent case of Sweatt v. Painter [339 U.S. 629], 70 S. Ct. 848 [94 L. Ed. 1114]. It is for the Supreme Court, not us, to overrule its decisions or to hold them outmoded."

To this we may add that, when seventeen states and the Congress of the United States have for more than three-quarters of a century required segregation of the races in the public schools, and when this has received the approval of the leading appellate courts of the country including the unanimous approval of the Supreme Court of the United States at a time when that court included Chief Justice Taft and Justices Stone, Holmes and Brandeis, it is a late day to say that such segregation is violative of fundamental constitutional rights. It is hardly reasonable to suppose that legislative bodies over so wide a territory, including the Congress of the United States, and great judges of high courts have knowingly defied the Constitution for so long a period or that they have acted in ignorance of the meaning of its provisions. The constitutional principle is the same now that it has been throughout this period; and if conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not for the courts. The members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics.

It is argued that, because the school facilities furnished Negroes in District No. 22 are inferior to those furnished white persons, we should enjoin segregation rather than direct the equalizing of conditions. In as much as we think that the law requiring segregation is valid, however, and that the inequality suffered by plaintiffs results, not from the law, but from the way it has been administered, we think that our injunction should be directed to removing the inequalities resulting from administration within the framework of the law rather than to nullifying the law itself. As a court of equity, we should exercise our power to assure to plaintiffs the equality of treatment to which they are entitled with due regard to the legislative policy of the state. In directing that the school facilities afforded Negroes within the district be equalized promptly with those afforded white persons, we are giving plaintiffs all the relief that they can reasonably ask and the relief that is ordinarily granted in cases of this sort. See Carter v. County School Board of Arlington County, Virginia, 4 Cir., 182 F.2d 531. The court should not use its power to abolish segregation in a state where it is required by law if the equality demanded by the Constitution can be attained otherwise. This much is demanded by the spirit of comity which must prevail in the relationship between the agencies of the federal government and the states if our constitutional system is to endure.

Decree will be entered finding that the constitutional and statutory provisions requiring *538 segregation in the public schools are not of themselves violative of the Fourteenth Amendment, but that defendants have denied to plaintiffs rights guaranteed by that amendment in failing to furnish for Negroes in School District 22 educational facilities and opportunities equal to those furnished white persons, and injunction will issue directing defendants promptly to furnish Negroes within the district educational facilities and opportunities equal to those furnished white persons and to report to the court within six months as to the action that has been taken by them to effectuate the court's decree.

Injunction to abolish segregation denied.

Injunction to equalize educational facilities granted.

WARING, District Judge (dissenting).

This case has been brought for the express and declared purpose of determining the right of the State of South Carolina, in its public schools, to practice segregation according to race.

The plaintiffs are all residents of Clarendon County, South Carolina which is situated within the Eastern District of South Carolina and within the jurisdiction of this court. The plaintiffs consist of minors and adults there being forty-six minors who are qualified to attend and are attending the public schools in School District 22 of Clarendon County; and twenty adults who are taxpayers and are either guardians or parents of the minor plaintiffs. The defendants are members of the Board of Trustees of School District 22 and other officials of the educational system of Clarendon County including the superintendent of education. They are the parties in charge of the various schools which are situated within the aforesaid school district and which are affected by the matters set forth in this cause.

The plaintiffs allege that they are discriminated against by the defendants under color of the Constitution and laws of the State of South Carolina whereby they are denied equal educational facilities and opportunities and that this denial is based upon difference in race. And they show that the school system of this particular school district and county (following the general pattern that it is admitted obtains in the State of South Carolina) sets up two classes of schools; one for people said to belong to the white race and the other for people of other races but primarily for those said to belong to the Negro race or of mixed races and either wholly, partially, or faintly alleged to be of African or Negro descent. These plaintiffs bring this action for the enforcement of the rights to which they claim they are entitled and on behalf of many others who are in like plight and condition and the suit is denominated a class suit for the purpose of abrogation of what is claimed to be the enforcement of unfair and discriminatory laws by the defendants. Plaintiffs claim that they are entitled to bring this case and that this court has jurisdiction under the Fourteenth Amendment of the Constitution of the United States and of a number of statutes of the United States, commonly referred to as civil rights statutes.[1] The plaintiffs demand relief under the above referred to sections of the laws of the United States by way of a declaratory judgment and permanent injunction.

It is alleged that the defendants are acting under the authority granted them by the Constitution and laws of the State of South Carolina and that all of these are in contravention of the Constitution and laws of the United States. The particular portions of the laws of South Carolina are as follows:

Article XI, Section 5 is as follows: "Free public schools. The General Assembly shall provide for a liberal system of free public schools for all children between the ages of six and twenty-one years * * *."

Article XI, Section 7 is as follows: "Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be *539 permitted to attend a school provided for children of the other race."

Section 5377 of the Code of Laws of South Carolina is as follows: "It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race."

It is further shown that the defendants are acting under the authority of the Constitution and laws of the State of South Carolina providing for the creation of various school districts,[2] and they have strictly separated and segregated the school facilities, both elementary and high school, according to race. There are, in said school district, three schools which are used exclusively by Negroes: to wit, Rambay Elementary School, Liberty Hill Elementary School, and Scotts Branch Union (a combination of elementary and high school). There are in the same school district, two schools maintained for whites, namely, Summerton Elementary School and Summerton High School. The last named serves some of the other school districts in Clarendon County as well as No. 22.

It appears that the plaintiffs filed a petition with the defendants requesting that the defendants cease discrimination against the Negro children of public school age; and the situation complained of not having been remedied or changed, the plaintiffs now ask this court to require the defendants to grant them their rights guaranteed under the Fourteenth Amendment of the Constitution of the United States and they appeal to the equitable power of this court for declaratory and injunctive relief alleging that they are suffering irreparable injuries and that they have no plain adequate or complete remedy to redress the wrongs and illegal acts complained of other than this suit. And they further point out that large numbers of people and persons are and will be affected by the decision of this court in adjudicating and clarifying the rights of Negroes to obtain education in the public school system of the State of South Carolina without discrimination and denial of equal facilities on account of their race.

The defendants appear and by way of answer deny the allegations of the complaint as to discrimination and inequality and allege that not only are they acting within the laws of the State in enforcing segregation but that all facilities afforded the pupils of different races are adequate and equal and that there is no inequality or discrimination practiced against these plaintiffs or any others by reason of race or color. And they allege that the facilities and opportunities furnished to the colored children are substantially the same as those provided for the white children. And they further base their defense upon the statement that the Constitutional and statutory provisions under attack in this case, that is to say, the provisions requiring separate schools because of race, are a reasonable exercise of the State's police power and that all of the same are valid under the powers possessed by the State of South Carolina and the Constitution of the United States and they deny that the same can be held to be unconstitutional by this Court.

The issues being so drawn and calling for a judgment by the United States Court which would require the issuance of an injunction against State and County officials, it became apparent that it would be necessary that the case be heard in accordance with the statute applicable to cases of this type requiring the calling of a three-judge court.[3] Such a court convened and the case was set for a hearing on May 28, 1951.

The case came on for a trial upon the issues as presented in the complaint and answer. But upon the call of the case, defendants' counsel announced that they wished to make a statement on behalf of the defendants making certain admissions and praying that the Court make a finding as to inequalities in respect to buildings, equipment, facilities, curricula and other aspects of the schools provided for children in School District 22 in Clarendon County *540 and giving the public authorities time to formulate plans for ending such inequalities. In this statement defendants claim that they never had intended to discriminate against any of the pupils and although they had filed an answer to the complaint, some five months ago, denying inequalities they now admit that they had found some; but rely upon the fact that subsequent to the institution of this suit, James F. Byrnes, the Governor of South Carolina, had stated in his inaugural address that the State must take steps to provide money for improving educational facilities and that thereafter, the Legislature had adopted certain legislation. They stated that they hoped that in time they would obtain money as a result of the foregoing and improve the school situation.

This statement was allowed to be filed and considered as an amendment to the answer.

By this maneuver, the defendants have endeavored to induce this Court to avoid the primary purpose of the suit. And if the Court should follow this suggestion and fail to meet the issues raised by merely considering this case in the light of another "separate but equal" case, the entire purpose and reason for the institution of the case and the convening of a three-judge court would be voided. The 66 plaintiffs in this cause have brought this suit at what must have cost much in effort and financial expenditures. They are here represented by 6 attorneys, all, save one, practicing lawyers from without the State of South Carolina and coming here from a considerable distance. The plaintiffs have brought a large number of witnesses exclusive of themselves. As a matter of fact, they called and examined 11 witnesses. They said that they had a number more coming who did not arrive in time owing to the shortening of the proceedings and they also stated that they had on hand and had contemplated calling a large number of other witnesses but this became unnecessary by reason of the foregoing admissions by defendants. It certainly appears that large expenses must have been caused by the institution of this case and great efforts expended in gathering data, making a study of the issues involved, interviewing and bringing numerous witnesses, some of whom are foremost scientists in America. And in addition to all of this, these 66 plaintiffs have not merely expended their time and money in order to test this important Constitutional question, but they have shown unexampled courage in bringing and presenting this cause at their own expense in the face of the long established and age-old pattern of the way of life which the State of South Carolina has adopted and practiced and lived in since and as a result of the institution of human slavery.

If a case of this magnitude can be turned aside and a court refused to hear these basic issues by the mere device of admission that some buildings, blackboards, lighting fixtures and toilet facilities are unequal but that they may be remedied by the spending of a few dollars, then, indeed people in the plight in which these plaintiffs are, have no adequate remedy or forum in which to air their wrongs. If this method of judicial evasion be adopted, these very infant plaintiffs now pupils in Clarendon County will probably be bringing suits for their children and grandchildren decades or rather generations hence in an effort to get for their descendants what are today denied to them. If they are entitled to any rights as American citizens, they are entitled to have these rights now and not in the future. And no excuse can be made to deny them these rights which are theirs under the Constitution and laws of America by the use of the false doctrine and patter called "separate but equal" and it is the duty of the Court to meet these issues simply and factually and without fear, sophistry and evasion. If this be the measure of justice to be meted out to them, then, indeed, hundreds, nay thousands, of cases will have to be brought and in each case thousands of dollars will have to be spent for the employment of legal talent and scientific testimony and then the cases will be turned aside, postponed or eliminated by devices such as this.

We should be unwilling to straddle or avoid this issue and if the suggestion made by these defendants is to be adopted as the *541 type of justice to be meted out by this Court, then I want no part of it.

And so we must and do face, without evasion or equivocation, the question as to whether segregation in education in our schools is legal or whether it cannot exist under our American system as particularly enunciated in the Fourteenth Amendment to the Constitution of the United States.

Before the American Civil War, the institution of human slavery had been adopted and was approved in this country. Slavery was nothing new in the world. From the dawn of history we see aggressors enslaving weak and less fortunate neighbors. Back through the days of early civilization man practiced slavery. We read of it in Biblical days; we read of it in the Greek City States and in the great Roman Empire. Throughout medieval Europe, forms of slavery existed and it was widely practiced in Asia Minor and the Eastern countries and perhaps reached its worst form in Nazi Germany. Class and caste have, unfortunately, existed through the ages. But, in time, mankind, through evolution and progress, through ethical and religious concepts, through the study of the teachings of the great philosophers and the great religious teachers, including especially the founder of Christianity mankind began to revolt against the enslavement of body, mind and soul of one human being by another. And so there came about a great awakening. The British who had indulged in the slave trade, awakened to the fact that it was immoral and against the right thinking ideology of the Christian world. And in this country, also, came about a moral awakening. Unfortunately, this had not been sufficiently advanced at the time of the adoption of the American Constitution for the institution of slavery to be prohibited. But there was a struggle and the better thinking leaders in our Constitutional Convention endeavored to prohibit slavery but unfortunately compromised the issue on the insistent demands of those who were engaged in the slave trade and the purchase and use of slaves. And so as time went on, slavery was perpetuated and eventually became a part of the life and culture of certain of the States of this Union although the rest of the world looked on with shame and abhorrence.

As was so well said, this country could not continue to exist one-half slave and one-half free and long years of war were entered into before the nation was willing to eradicate this system which was, itself, a denial of the brave and fine statements of the Declaration of Independence and a denial of freedom as envisioned and advocated by our Founders.

The United States then adopted the 13th, 14th and 15th Amendments and it cannot be denied that the basic reason for all of these Amendments to the Constitution was to wipe out completely the institution of slavery and to declare that all citizens in this country should be considered as free, equal and entitled to all of the provisions of citizenship.

The Fourteenth Amendment to the Constitution of the United States is as follows: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It seems to me that it is unnecessary to pore through voluminous arguments and opinions to ascertain what the foregoing means. And while it is true that we have had hundreds, perhaps thousands, of legal opinions outlining and defining the various effects and overtones on our laws and life brought about by the adoption of this Amendment, one of ordinary ability and understanding of the English language will have no trouble in knowing that when this Amendment was adopted, it was intended to do away with discrimination between our citizens.

The Amendment refers to all persons. There is nothing in there that attempts to separate, segregate or discriminate against any persons because of their being of *542 European, Asian or African ancestry. And the plain intendment is that all of these persons are citizens. And then it is provided that no State shall make or enforce any law which shall abridge the privileges of citizens nor shall any state deny "to any person within its jurisdiction the equal protection of the laws".

The Amendment was first proposed in 1866 just about a year after the end of the American Civil War and the surrender of the Confederate States government. Within two years, the Amendment was adopted and became part of the Constitution of the United States. It cannot be gainsaid that the Amendment was proposed and adopted wholly and entirely as a result of the great conflict between freedom and slavery. This will be amply substantiated by an examination and appreciation of the proposal and discussion and Congressional debates (see Flack on Adoption of the 14th Amendment) and so it is undeniably true that the three great Amendments were adopted to eliminate not only slavery, itself, but all idea of discrimination and difference between American citizens.

Let us now come to consider whether the Constitution and Laws of the State of South Carolina which we have heretofore quoted are in conflict with the true meaning and intendment of this Fourteenth Amendment. The whole discussion of race and ancestry has been intermingled with sophistry and prejudice. What possible definition can be found for the so-called white race, Negro race or other races? Who is to decide and what is the test? For years, there was much talk of blood and taint of blood. Science tells us that there are but four kinds of blood: A, B, AB and O and these are found in Europens, Asiatics, Africans, Americans and others. And so we need not further consider the irresponsible and baseless references to preservation of "Caucasian blood". So then, what test are we going to use in opening our school doors and labeling them "white" and "Negro"? The law of South Carolina considers a person of one-eighth African ancestry to be a Negro. Why this proportion? Is it based upon any reason: anthropological, historical or ethical? And how are the trustees to know who are "whites" and who are "Negroes"? If it is dangerous and evil for a white child to be associated with another child, one of whose great-grandparents was of African descent, is it not equally dangerous for one with a one-sixteenth percentage? And if the State has decided that there is danger in contact between the whites and Negroes, isn't it requisite and proper that the State furnish a series of schools one for each of these percentages? If the idea is perfect racial equality in educational systems, why should children of pure African descent be brought in contact with children of one-half, one-fourth, or one-eighth such ancestry? To ask these questions is sufficient answer to them. The whole thing is unreasonable, unscientific and based upon unadulterated prejudice. We see the results of all of this warped thinking in the poor under-privileged and frightened attitude of so many of the Negroes in the southern states; and in the sadistic insistence of the "white supremacists" in declaring that their will must be imposed irrespective of rights of other citizens. This claim of "white supremacy", while fantastic and without foundation, is really believed by them for we have had repeated declarations from leading politicians and governors of this state and other states declaring that "white supremacy" will be endangered by the abolition of segregation. There are present threats, including those of the present Governor of this state, going to the extent of saying that all public education may be abandoned if the courts should grant true equality in educational facilities.

Although some 73 years have passed since the adoption of the Fourteenth Amendment and although it is clearly apparent that its chief purpose, (perhaps we may say its only real purpose) was to remove from Negroes the stigma and status of slavery and to confer upon them full rights as citizens, nevertheless, there has been a long and arduous course of litigation through the years. With some setbacks here and there, the courts have generally and progressively recognized the true meaning of the Fourteenth Amendment and have, from time to time, stricken down the attempts *543 made by state governments (almost entirely those of the former Confederate states) to restrict the Amendment and to keep Negroes in a different classification so far as their rights and privileges as citizens are concerned. A number of cases have reached the Supreme Court of the United States wherein it became necessary for that tribunal to insist that Negroes be treated as citizens in the performance of jury duty. See Strauder v. West Virginia[4], where the Court says 100 U.S. at page 307, 25 L. Ed. 664; "* * * 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."

Many subsequent cases have followed and confirmed the right of Negroes to be treated as equals in all jury and grand jury service in the states.

The Supreme Court has stricken down from time to time statutes providing for imprisonment for violation of contracts. These are known as peonage cases and were in regard to statutes primarily aimed at keeping the Negro "in his place".[5]

In the field of transportation the court has now, in effect declared that common carriers engaged in interstate travel must not and cannot segregate and discriminate against passengers by reason of their race or color.[6]

Frequent and repeated instances of prejudice in criminal cases because of the brutal treatment of defendants because of their color have been passed upon in a large number of cases.[7]

Discrimination by segregation of housing facilities and attempts to control the same by covenants have also been outlawed.[8]

In the field of labor employment and particularly the relation of labor unions to the racial problem, discrimination has again been forbidden.[9]

Perhaps the most serious battle for equality of rights has been in the field of exercise of suffrage. For years, certain of the southern states have attempted to prevent the Negro from taking part in elections by various devices. It is unnecessary to enumerate the long list of cases, but from time to time courts have stricken down all of these various devices classed as the "grandfather clause", educational tests and white private clubs.[10]

*544 The foregoing are but a few brief references to some of the major landmarks in the fight by Negroes for equality. We now come to the more specific question, namely, the field of education. The question of the right of the state to practice segregation by race in certain educational facilities has only recently been tested in the courts. The cases of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 and Sipuel v. Board of Regents, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247, decided that Negroes were entitled to the same type of legal education that whites were given. It was further decided that the equal facilities must be furnished without delay or as was said in the Sipuel case, the state must provide for equality of education for Negroes "as soon as it does for applicants of any other group". But still we have not reached the exact question that is posed in the instant case.

We now come to the cases that, in my opinion, definitely and conclusively establish the doctrine that separation and segregation according to race is a violation of the Fourteenth Amendment. I, of course, refer to the cases of Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114, and McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149. These cases have been followed in a number of lower court decisions so that there is no longer any question as to the rights of Negroes to enjoy all the rights and facilities afforded by the law schools of the States of Virginia, Louisiana, Delaware, North Carolina and Kentucky. So there is no longer any basis for a state to claim the power to separate according to race in graduate schools, universities and colleges.

The real rock on which the defendants base their case is a decision of the Supreme Court of the United States in the case of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256. This case arose in Louisiana and was heard on appeal in 1895. The case related to the power of the State of Louisiana to require separate railroad cars for white and colored passengers and the Court sustained the State's action. Much discussion has followed this case and the reasoning and decision has been severely criticized for many years. And the famous dissenting opinion by Mr. Justice Harlan has been quoted throughout the years as a true declaration of the meaning of the Fourteenth Amendment and of the spirit of the American Constitution and the American way of life. It has also been frequently pointed out that when that decision was made, practically all the persons of the colored or Negro race had either been born slaves or were the children of slaves and that as yet due to their circumstances and surroundings and the condition in which they had been kept by their former masters, they were hardly looked upon as equals or as American citizens. The reasoning of the prevailing opinion in the Plessy case stems almost completely from a decision by Chief Justice Shaw of Massachusetts[11], which decision was made many years before the Civil War and when, of course, the Fourteenth Amendment had not even been dreamed of.

But these arguments are beside the point in the present case. And we are not called upon to argue or discuss the validity of the Plessy case.

Let it be remembered that the Plessy case decided that separate railroad accommodations might be required by a state in intra-state transportation. How similar attempts relating to inter-state transportation have fared have been shown in the foregoing discussion and notes.[12] It has *545 been said and repeated here in argument that the Supreme Court has refused to review the Plessy case in the Sweatt, McLaurin and other cases and this has been pointed to as proof that the Supreme Court retains and approves the validity of Plessy. It is astonishing that such an argument should be presented or used in this or any other court. The Supreme Court in Sweatt and McLaurin was not considering railroad accommodations. It was considering education just as we are considering it here and the Supreme Court distinctly and unequivocally held that the attempt to separate the races in education was violative of the Fourteenth Amendment of the Constitution. Of course, the Supreme Court did not consider overruling Plessy. It was not considering railroad matters, had no arguments in regard to it, had no business or concern with railroad accommodations and should not have even been asked to refer to that case since it had no application or business in the consideration of an educational problem before the court. It seems to me that we have already spent too much time and wasted efforts in attempting to show any similarity between traveling in a railroad coach in the confines of a state and furnishing education to the future citizens of this country.

The instant case which relates to lower school education is based upon exactly the same reasoning followed in the Sweatt and McLaurin decisions. In the Sweatt case, it was clearly recognized that a law school for Negro students had been established and that the Texas courts had found that the privileges, advantages and opportunities offered were substantially equivalent to those offered to white students at the University of Texas. Apparently, the Negro school was adequately housed, staffed and offered full and complete legal education, but the Supreme Court clearly recognized that education does not alone consist of fine buildings, class room furniture and appliances but that included in education must be all the intangibles that come into play in preparing one for meeting life. As was so well said by the Court: "* * * Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned." [339 U.S. 629, 70 S. Ct. 850.] And the Court quotes with approval from its opinion in Shelley v. Kramer, supra: "* * * Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." The Court further points out that this right to a proper and equal education is a personal one and that an individual is entitled to the equal protection of the laws. And in closing, the Court, referring to certain cases cited, says: "In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State."

In the companion case of McLaurin v. Oklahoma State Regents, McLaurin was a student who was allowed to attend the same classes, hear the same lectures, stand the same examinations and eat in the same cafeteria; but he sat in a marked off place and had a separate table assigned to him in the library and another one in the cafeteria. It was said with truth that these facilities were just as good as those afforded to white students. But the Supreme Court says that even though this be so:

"These restrictions were obviously imposed in order to comply, as nearly as could be, with the statutory requirements of Oklahoma. But they signify that the State, in administering the facilities it affords for professional and graduate study, sets McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.

"Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, *546 for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained." [339 U.S. 637, 70 S. Ct. 853.]

The recent case of McKissick v. Charmichael, 4 Cir., 187 F.2d 949, 953, wherein the question of admission to the law school of the University of North Carolina was decided follows and amplifies the reasoning of the Sweatt and McLaurin cases. In the McKissick case, officials of the State of North Carolina took the position that they had adopted a fixed and continued purpose to establish and build up separate schools for equality in education and pointed with pride to the large advances that they had made. They showed many actual physical accomplishments and the establishment of a school which they claimed was an equal in many respects and superior in some respects to the school maintained for white students. The Court of Appeals for the 4th Circuit in this case, speaking through Judge Soper, meets this issue without fear or evasion and says: "These circumstances are worthy of consideration by any one who is responsible for the solution of a difficult racial problem; but they do not meet the complainants' case or overcome the deficiencies which it discloses. Indeed the defense seeks in part to avoid the charge of inequality by the paternal suggestion that it would be beneficial to the colored race in North Carolina as a whole, and to the individual plaintiffs in particular, if they would cooperate in promoting the policy adopted by the State rather than seek the best legal education which the State provides. The duty of the federal courts, however, is clear. We must give first place to the rights of the individual citizen, and when and where he seeks only equality of treatment before the law, his suit must prevail. It is for him to decide in which direction his advantage lies."

In the instant case, the plaintiffs produced a large number of witnesses. It is significant that the defendants brought but two. These last two were not trained educators. One was an official of the Clarendon schools who said that the school system needed improvement and that the school officials were hopeful and expectant of obtaining money from State funds to improve all facilities. The other witness, significantly named Crow, has been recently employed by a commission just established which, it is proposed, will supervise educational facilities in the State and will handle monies if, as and when the same are received sometime in the future. Mr. Crow did not testify as an expert on education although he stated flatly that he believed in separation of the races and that he heard a number of other people say so, including some Negroes, but he was unable to mention any of their names. Mr. Crow explained what was likely and liable to happen under the 1951 State Educational Act to which frequent reference was made in argument on behalf of the defense.

It appears that the Governor of this state called upon the legislature to take action in regard to the dearth of educational facilities in South Carolina pointing out the low depth to which the state had sunk. As a result, an act of the legislature was adopted (this is a part of the General Appropriations Act adopted at the recent session of the legislature and referred to as the 1951 School Act). This Act provides for the appointment of a commission which is to generally supervise educational facilities and imposes sales taxes in order to raise money for educational purposes and authorizes the issuance of bonds not to exceed the sum of $75,000,000, for the purpose of making grants to various counties and school districts to defray the cost of capital improvement in schools. The Commission is granted wide power to accept applications for and approve such grants as loans. It is given wide power as to what schools and school districts are *547 to receive monies and it is also provided, that from the taxes there are to be allocated funds to the various schools based upon the enrollment of pupils. Nowhere is it specifically provided that there shall be equality of treatment as between whites and Negroes in the school system. It is openly and frankly admitted by all parties that the present facilities are hopelessly disproportional and no one knows how much money would be required to bring the colored school system up to a parity with the white school system. The estimates as to the cost merely of equalization of physical facilities run anywhere from forty to eighty million dollars. Thus, the position of the defendants is that the rights applied for by the plaintiffs are to be denied now because the State of South Carolina intends (as evidenced by a general appropriations bill enacted by the legislature and a speech made by its Governor) to issue bonds, impose taxes, raise money and to do something about the inadequate schools in the future. There is no guarantee or assurance as to when the money will be available. As yet, no bonds have been printed or sold. No money is in the treasury. No plans have been drawn for school buildings or order issued for materials. No allocation has been made to the Clarendon school district or any other school districts and not even application blanks have, as yet, been printed. But according to Mr. Crow, the Clarendon authorities have requested him to send them blanks for this purpose if, as and when they come into being. Can we seriously consider this a bona-fide attempt to provide equal facilities for our school children?

On the other hand, the plaintiffs brought many witnesses, some of them of national reputation in various educational fields. It is unnecessary for me to review or analyze their testimony. But they who had made studies of education and its effect upon children, starting with the lowest grades and studying them up through and into high school, unequivocally testified that aside from inequality in housing appliances and equipment, the mere fact of segregation, itself, had a deleterious and warping effect upon the minds of children. These witnesses testified as to their study and researches and their actual tests with children of varying ages and they showed that the humiliation and disgrace of being set aside and segregated as unfit to associate with others of different color had an evil and ineradicable effect upon the mental processes of our young which would remain with them and deform their view on life until and throughout their maturity. This applies to white as well as Negro children. These witnesses testified from actual study and tests in various parts of the country, including tests in the actual Clarendon School district under consideration. They showed beyond a doubt that the evils of segregation and color prejudice come from early training. And from their testimony as well as from common experience and knowledge and from our own reasoning, we must unavoidably come to the conclusion that racial prejudice is something that is acquired and that that acquiring is in early childhood. When do we get our first ideas of religion, nationality and the other basic ideologies? The vast number of individuals follow religious and political groups because of their childhood training. And it is difficult and nearly impossible to change and eradicate these early prejudices, however strong may be the appeal to reason. There is absolutely no reasonable explanation for racial prejudice. It is all caused by unreasoning emotional reactions and these are gained in early childhood. Let the little child's mind be poisoned by prejudice of this kind and it is practically impossible to ever remove these impressions however many years he may have of teaching by philosophers, religious leaders or patriotic citizens. If segregation is wrong then the place to stop it is in the first grade and not in graduate colleges.

From their testimony, it was clearly apparent, as it should be to any thoughtful person, irrespective of having such expert testimony, that segregation in education *548 tion can never produce equality and that it is an evil that must be eradicated. This case presents the matter clearly for adjudication and I am of the opinion that all of the legal guideposts, expert testimony, common sense and reason point unerringly to the conclusion that the system of segregation in education adopted and practiced in the State of South Carolina must go and must go now.

Segregation is per se inequality.

As heretofore shown, the courts of this land have stricken down discrimination in higher education and have declared unequivocally that segreation is not equality. But these decisions have pruned away only the noxious fruits. Here in this case, we are asked to strike its very root. Or rather, to change the metaphor, we are asked to strike at the cause of infection and not merely at the symptoms of disease. And if the courts of this land are to render justice under the laws without fear or favor, justice for all men and all kinds of men, the time to do it is now and the place is in the elementary schools where our future citizens learn their first lesson to respect the dignity of the individual in a democracy.

To me the situation is clear and important, particularly at this time when our national leaders are called upon to show to the world that our democracy means what it says and that it is a true democracy and there is no under-cover suppression of the rights of any of our citizens because of the pigmentation of their skins. And I had hoped that this Court would take this view of the situation and make a clear cut declaration that the State of South Carolina should follow the intendment and meaning of the Constitution of the United States and that it shall not abridge the privileges accorded to or deny equal protection of its laws to any of its citizens. But since the majority of this Court feel otherwise, and since I cannot concur with them or join in the proposed decree, this opinion is filed as a dissent.

NOTES

[1] Article 11, section 7 of the Constitution of South Carolina is as follows: "Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race."

Section 5377 of the Code of Laws of South Carolina of 1942 is as follows: "It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race."

[2] Statistical Summary of Education, 1947-48, `Biennial Survey of Education in the United States, 1946-48", ch. 1, pp. 8, 40 (Federal Security Agency, Office of Education).

[3] See also Roberts v. City of Boston, 5 Cush., Mass., 198, decided prior to the Fourteenth Amendment.

[4] See also, Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S. Ct. 370, 60 L. Ed. 679; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S. Ct. 187, 79 L. Ed. 281; Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S. Ct. 538, 79 L. Ed. 1070; State Board of Tax Com'rs v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 75 L. Ed. 1248; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 55 L. Ed. 369; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 465, 65 S. Ct. 1384, 89 L. Ed. 1725; Asbury Hospital v. Cass County, N.D., 326 U.S. 207, 215, 66 S. Ct. 61, 90 L. Ed. 6; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 509, 57 S. Ct. 868, 81 L. Ed. 1245; South Carolina Power Co. v. South Carolina Tax Com'n, 4 Cir., 52 F.2d 515, 518; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S. Ct. 778, 82 L. Ed. 1234; Bowles v. American Brewery, 4 Cir., 146 F.2d 842, 847; White Packing Co. v. Robertson, 4 Cir., 89 F.2d 775, 779.

[1] Fourteenth Amendment of the Constitution of the United States, Section 1; Title 8 U.S.C.A. §§ 41, 43; Title 28, U.S.C.A. § 1343.

[2] Constitution of South Carolina, Article XI, Section 5; Code of Laws, 5301, 5316, 5328, 5404 and 5405; Code of Laws of South Carolina, Sections 5303, 5306, 5343, 5409.

[3] Title 28, U.S.C.A. §§ 2281-2284.

[4] 100 U.S. 303, 25 L. Ed. 664.

[5] Peonage: Bailey v. Alabama, 219 U.S. 219, 31 S. Ct. 145, 55 L. Ed. 191; U. S. v. Reynolds, 235 U.S. 133, 35 S. Ct. 86, 59 L. Ed. 162.

[6] Transportation: Mitchell v. U. S., 313 U.S. 80, 61 S. Ct. 873, 85 L. Ed. 1201; Morgan v. Virginia, 328 U.S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317; Henderson v. U. S., 339 U.S. 816, 70 S. Ct. 843, 94 L. Ed. 1302; Chance v. Lambeth, 4 Cir., 186 F.2d 879, certiorari denied Atlantic Coast Line R. Co. v. Chance, 341 U.S. 941, 71 S. Ct. 1001, May 28, 1951.

[7] Criminals: Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682; Chambers v. Florida, 309 U.S. 227, 60 S. Ct. 472, 84 L. Ed. 716; Shepherd v. Florida, 341 U.S. 50, 71 S. Ct. 549.

[8] Housing: Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149; Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161.

[9] Labor: Steele v. Louisville & N. R. R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187.

[10] Suffrage: Guinn v. U. S., 238 U.S. 347, 35 S. Ct. 926, 59 L. Ed. 1340; Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759; Lane v. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. Ed. 1281; Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987; Elmore v. Rice, D.C., 72 F. Supp. 516; 4 Cir., 165 F.2d 387; certiorari denied, 333 U.S. 875, 68 S. Ct. 905, 92 L. Ed. 1151; Brown v. Baskin, D.C., 78 F. Supp. 933; Brown v. Baskin, D.C., 80 F. Supp. 1017; 4 Cir., 174 F.2d 391.

[11] Roberts v. City of Boston, 5 Cush., Mass., 198.

[12] See cases cited in Note 6.
 

Brown v. Board of Education of Topeka

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98 F. Supp. 797 (1951) BROWN et al. v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS et al. Civ. No. T-316.

United States District Court, D. Kansas. August 3, 1951.

John Scott and Charles Scott, Topeka, Kan., Robert L. Carter, New York City, Jack Greenberg, New York City, and Charles Bledsoe, Topeka, Kan., for plaintiffs.

George Brewster and Lester Goodell, Topeka, Kan., for defendants.

Before HUXMAN, Circuit Judge, MELLOTT, Chief Judge, and HILL, District Judge.

HUXMAN, Circuit Judge.

Chapter 72-1724 of the General Statutes of Kansas, 1949, relating to public schools in cities of the first class, so far as material, authorizes such cities to organize and maintain separate schools for the education of white and colored children in the grades below the high school grades. Pursuant to this authority, the City of Topeka, Kansas, a city of the first class, has established and maintains a segregated system of schools for the first six grades. It has established and maintains in the Topeka School District eighteen schools for white students and four schools for colored students.

The adult plaintiffs instituted this action for themselves, their minor children plaintiffs, and all other persons similarly situated for an interlocutory injunction, a permanent injunction, restraining the enforcement, operation and execution of the state statute and the segregation instituted thereunder by the school authorities of the City of Topeka and for a declaratory judgment declaring unconstitutional the state statute and the segregation set up thereunder by the school authorities of the City of Topeka.

As against the school district of Topeka they contend that the opportunities provided for the infant plaintiffs in the separate all Negro schools are inferior to those provided white children in the all white schools; that the respects in which these opportunities are inferior include the physical facilities, curricula, teaching resources, student personnel services as well as all other services. *798 As against both the state and the school district, they contend that apart from all other factors segregation in itself constitutes an inferiority in educational opportunities offered to Negroes and that all of this is in violation of due process guaranteed them by the Fourteenth Amendment to the United States Constitution. In their answer both the state and the school district defend the constitutionality of the state law and in addition the school district defends the segregation in its schools instituted thereunder.

We have found as a fact that the physical facilities, the curricula, courses of study, qualification of and quality of teachers, as well as other educational facilities in the two sets of schools are comparable. It is obvious that absolute equality of physical facilities is impossible of attainment in buildings that are erected at different times. So also absolute equality of subjects taught is impossible of maintenance when teachers are permitted to select books of their own choosing to use in teaching in addition to the prescribed courses of study. It is without dispute that the prescribed courses of study are identical in all of the Topeka schools and that there is no discrimination in this respect. It is also clear in the record that the educational qualifications of the teachers in the colored schools are equal to those in the white schools and that in all other respects the educational facilities and services are comparable. It is obvious from the fact that there are only four colored schools as against eighteen white schools in the Topeka School District, that colored children in many instances are required to travel much greater distances than they would be required to travel could they attend a white school, and are required to travel much greater distances than white children are required to travel. The evidence, however, establishes that the school district transports colored children to and from school free of charge. No such service is furnished to white children. We conclude that in the maintenance and operation of the schools there is no willful, intentional or substantial discrimination in the matters referred to above between the colored and white schools. In fact, while plaintiffs' attorneys have not abandoned this contention, they did not give it great emphasis in their presentation before the court. They relied primarily upon the contention that segregation in and of itself without more violates their rights guaranteed by the Fourteenth Amendment.

This contention poses a question not free from difficulty. As a subordinate court in the federal judicial system, we seek the answer to this constitutional question in the decisions of the Supreme Court when it has spoken on the subject and do not substitute our own views for the declared law by the Supreme Court. The difficult question as always is to analyze the decisions and seek to ascertain the trend as revealed by the later decisions.

There are a great number of cases, both federal and state, that have dealt with the many phases of segregation. Since the question involves a construction and interpretation of the federal Constitution and the pronouncements of the Supreme Court, we will consider only those cases by the Supreme Court with respect to segregation in the schools. In the early case of Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 1140, 41 L. Ed. 256, the Supreme Court said: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced."

*799 It is true as contended by plaintiffs that the Plessy case involved transportation and that the above quoted statement relating to schools was not essential to the decision of the question before the court and was therefore somewhat in the nature of dicta. But that the statement is considered more than dicta is evidenced by the treatment accorded it by those seeking to strike down segregation as well as by statements in subsequent decisions of the Supreme Court. On numerous occasions the Supreme Court has been asked to overrule the Plessy case. This the Supreme Court has refused to do, on the sole ground that a decision of the question was not necessary to a disposal of the controversy presented. In the late case of Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 851, 94 L. Ed. 1114, the Supreme Court again refused to review the Plessy case. The Court said: "Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation."

Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 93, 72 L. Ed. 172, was a grade school segregation case. It involved the segregation law of Mississippi. Gong Lum was a Chinese child and, because of color, was required to attend the separate schools provided for colored children. The opinion of the court assumes that the educational facilities in the colored schools were adequate and equal to those of the white schools. Thus the court said: "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." In addition to numerous state decisions on the subject, the Supreme Court in support of its conclusions cited Plessy v. Ferguson, supra. The Court also pointed out that the question was the same no matter what the color of the class that was required to attend separate schools. Thus the Court said: "Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races." The court held that the question of segregation was within the discretion of the state in regulating its public schools and did not conflict with the Fourteenth Amendment.

It is vigorously argued and not without some basis therefor that the later decisions of the Supreme Court in McLaurin v. Oklahoma, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149, and Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114, show a trend away from the Plessy and Lum cases. McLaurin v. Oklahoma arose under the segregation laws of Oklahoma. McLaurin, a colored student, applied for admission to the University of Oklahoma in order to pursue studies leading to a doctorate degree in education. He was denied admission solely because he was a Negro. After litigation in the courts, which need not be reviewed herein, the legislature amended the statute permitting the admission of colored students to institutions of higher learning attended by white students, but providing that such instruction should be given on a segregated basis; that the instruction be given in separate class rooms or at separate times. In compliance with this statute McLaurin was admitted to the university but was required to sit at a separate desk in the ante room adjoining the class room; to sit at a designated desk on the mezzanine floor of the library and to sit at a designated table and eat at a different time from the other students in the school cafeteria. These restrictions were held to violate his rights under the federal Constitution. The Supreme Court held that such treatment handicapped the student in his pursuit of effective graduate instruction.[1]

*800 In Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 850, 94 L. Ed. 1114, petitioner, a colored student, filed an application for admission to the University of Texas Law School. His application was rejected solely on the ground that he was a Negro. In its opinion the Supreme Court stressed the educational benefits from commingling with white students. The court concluded by stating: "we cannot conclude that the education offered petitioner [in a separate school] is substantially equal to that which he would receive if admitted to the University of Texas Law School." If segregation within a school as in the McLaurin case is a denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom, is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grades.

It must however be remembered that in both of these cases the Supreme Court made it clear that it was confining itself to answering the one specific question, namely: "To what extent does the Equal Protection Clause * * * limit the power of a state to distinguish between students of different races in professional and graduate education in a state university?", and that the Supreme Court refused to review the Plessy case because that question was not essential to a decision of the controversy in the case.

We are accordingly of the view that the Plessy and Lum cases, supra, have not been overruled and that they still presently are authority for the maintenance of a segregated school system in the lower grades.

The prayer for relief will be denied and judgment will be entered for defendants for costs.

NOTES

[1] The court said: "Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents, perhaps, the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained.

"It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference a Constitutional difference between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar. * * * having been admitted to a state-supported graduate school, (he), must receive the same treatment at the hands of the state as students of other races." [339 U.S. 637, 70 S. Ct. 853.]
 

Davis v. County School Board of Prince Edward County

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149 F. Supp. 431 (1957)
Dorothy E. DAVIS et al.
v.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY et al.
Civ. A. No. 1333.

United States District Court E. D. Virginia, Richmond Division.
January 23, 1957.
Order Filed March 26, 1957.

Oliver W. Hill, Martin A. Martin, Spottswood W. Robinson, III, Richmond, *432 Va., Thurgood Marshall, Robert L. Carter, New York City, for plaintiffs.

Hunton, Williams, Gay, Moore & Powell, T. Justin Moore, Archibald G. Robertson, John W. Riely, T. Justin Moore, Jr., Richmond, Va., for County School Board of Prince Edward County, Virginia, and Thomas J. McIlwaine.

J. Lindsay Almond, Jr., Atty. Gen. of Virginia, Henry T. Wickham, Sp. Asst. to Atty. Gen., for Commonwealth of Virginia.

HUTCHESON, Chief Judge.

This case originated in the Richmond Division upon the filing of a complaint on May 21, 1951. The declared object of the complaint was, in substance, to obtain a declaratory judgment holding that segregation of pupils in the public schools in the county by races constituted discrimination in violation of the Fourteenth Amendment to the Constitution of the United States. There were also allegations concerning the inequality of school facilities, which last constituted a somewhat unimportant part of the controversy.

The case was heard February 25-29, 1952, by a three-judge court which had been convened in accordance with the provisions of the statute. The opinion of that Court was filed on March 7, 1952, and is reported in D.C., 103 F.Supp., 337. An appeal was allowed on May 5, 1952, and on May 17, 1954, the Supreme Court handed down its opinion, reversing the findings and conclusions of this Court, the case having been consolidated with four other cases then pending before it. See Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873. At the suggestion of the Court the case was further argued as to specific questions hereafter more fully discussed, and the Court filed its second opinion on May 31, 1955. 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083. The mandate having been received by this Court on June 28, 1955, the case was called for further proceedings and on July 18, 1955, the three-judge court entered an order directing compliance with the terms of the mandate, but finding that it was not practicable to effect a change in the operation of the public schools of the county during the session beginning September 1955.

On April 23, 1956, plaintiffs filed a motion seeking an order fixing a time limit within which compliance with the order should be had, to which answer of the defendants was filed on June 29, 1956. On July 9, 1956, the three-judge court was reconvened and, pursuant to order previously entered, heard argument on the sole question of whether it should continue to function or if the case should be returned to the resident District Judge in whose division suit was instituted. On July 19, 1956, 142 F. Supp. 616, the Court announced its unanimous decision that since the constitutional question involved had been determined, the three-judge court should no longer function and the matter should be heard by the resident District Judge. On October 17, 1956, defendants filed a motion seeking the dismissal of the case upon the ground that the General Assembly of Virginia in extra session 1956 had provided the plaintiffs an adequate remedy at law in the courts of the Commonwealth.

The respective motions were argued on November 14, 1956, and the case is now before me as the resident District Judge for disposition of the motions upon the pleadings and certain exhibits which have been filed pertaining to the motions.

I am mindful that other District Courts have dealt with similar cases but in each case the Court was dealing with the record before it and with the problems of the particular locality affected by its order. Consequently, those decisions afford little, if any, aid in dealing with this case.

The questions raised by the supplemental answer and motion to dismiss the motion for further relief filed by the defendants on October 17, 1956, and the arguments thereon, may be stated as follows:

(a) Should the three-judge District Court be reconvened?

*433 (b) Are certain statutes passed by the General Assembly of Virginia in extra session 1956 constitutional?; and

(c) Should plaintiffs be required to exhaust administrative remedies provided by the state statutes?

I shall first consider the questions presented in the last mentioned motion in the order stated.

From an examination of the applicable statute, Title 28, Section 2281, United States Code, and upon consideration of its purpose I reach the conclusion that in the present state of the record in this case it is not appropriate to request the convening of a three-judge court. There is no application before me for an order to restrain or enjoin the action of any officer of the state in the enforcement or execution of any state statute or order such as contemplated by the Act of Congress.

In the present state of the record of this particular case I do not consider the constitutionality of the state statutes referred to or the relief there provided proper subject of inquiry. They were the subject of argument at the hearing on November 14, 1956, and I shall dispose of the questions so raised without extended discussion.

The situation before me was aptly summed up by Judge Parker in Carson v. Warlick, 4 Cir., 238 F.2d 724, 728, in which he used the following language:

"It is argued that the Pupil Enrollment Act is unconstitutional; but we cannot hold that that statute is unconstitutional upon its face and the question as to whether it has been unconstitutionally applied is not before us, as the administrative remedy which it provides has not been invoked."

And further:

"It is to be presumed that these [the officials of the schools and the school boards] will obey the law, observe the standards prescribed by the legislature, and avoid the discrimination on account of race which the Constitution forbids. Not until they have been applied to and have failed to give relief should the courts be asked to interfere in school administration. As said by the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 299, 75 S. Ct. 753, 756, 99 L.Ed. 1083:

"`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.'"

The opinion in School Board of the City of Charlottesville, Va. v. Allen (County School Board of Arlington County, Va. v. Thompson), 4 Cir., 240 F.2d 59, 64, contains language pertinent here. The Court again speaking through Chief Judge Parker, in referring to administrative remedies provided under Section 22-57 of the Code of Virginia, and after pointing out that the pupil placement law recently enacted by the General Assembly of Virginia had not become effective when the cases were heard (although it was effective at the time that opinion was rendered, as is the situation here) said:

"* * * Reliance is placed upon on our decision in Carson v. Warlick, 4 Cir., 238 F.2d 724. In that case, however, an adequate administrative remedy had been prescribed by statute, the plaintiffs there had failed to pursue the remedy as outlined in the decision of the Supreme Court of the State and there was nothing upon which a court could say that if they had followed such remedy their rights under the Constitution would have been denied them." (Emphasis supplied.)

See also Hood v. Board of Trustees, etc., 4 Cir., 232 F.2d 626, and Robinson v. Board of Education, etc., D.C.Md., 143 F. Supp. 481.

The quoted language appears in point in so far as the constitutional question is concerned. While the statutes involved *434 are not identical, the principle announced is applicable.

Turning to the proposal that the plaintiffs be required to exhaust the administrative remedies provided by the state statutes, I am again confronted by the record before me. Being of opinion I am not in a position to pass upon the constitutionality of the statutes setting up the administrative remedy, it is my thought that I should not undertake to require the plaintiffs to seek any particular remedy. They are free to do so and thereby test the constitutionality of the statutes should they desire. However, that is a right, not an obligation. In the meantime, this is a matter of school administration in which I should not interfere.

It follows that the motion of the defendants to dismiss the motion for further relief should not be granted at this time. However, I incline to the view that instead of being dismissed it should be retained on the docket of the Court for final disposition at a later time should further proceedings develop an issue properly determinable in this case.

In undertaking to approach a solution to the troublesome problems involved in this case which are presented by the record and properly before me for determination, including the motion for further relief filed by the plaintiffs, it is to be borne in mind that the Supreme Court has decided only one legal principle which is concisely stated in the syllabus appearing in 347 U.S. 483, 74 S. Ct. 686, as follows:

"Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment * * *."

A study of the opinions of May 17, 1954, and May 31, 1955, reveals no other principle of law to serve as precedent or landmark in undertaking to apply the law to the facts, although certain well-recognized equitable principles are mentioned. For a clearer understanding of the question here presented, some discussion of those opinions at this point may be helpful.

In the 1954 opinion, which will be referred to as the First Brown case, 347 U.S. at page 495, 74 S.Ct. at page 692, the Court, after stating that "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", requested counsel to present further argument on questions which may be briefly summarized as follows: Whether a decree would necessarily follow providing that Negro children should forthwith be admitted to schools of their choice, or whether the Court should permit an effective gradual adjustment to be brought about to a system not based on color distinctions; whether the Supreme Court should formulate detailed decrees in the cases; if so, what specific issues should be reached thereby; if the appointment of a special master to hear evidence with a view of recommending specific terms for the decrees would be desirable; and finally, whether that Court should remand the cases to the courts of first instance with directions to frame decrees, and if that policy were followed, what general directions should the decree of the Supreme Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees. For full text of the questions propounded and argued see 345 U.S. 972, 73 S. Ct. 1114, 97 L. Ed. 1388.

Following elaborate argument upon these questions, in which the Attorneys General of the affected states and the Solicitor General of the United States presented their views, the Court filed its opinion on May 31, 1955, which will be referred to as the Second Brown case. With knowledge of what was considered by the Court, as revealed by the questions, the language of the opinion in the Second Brown case takes on added significance, *435 both with respect to what was not said as well as to what was said. Certain portions of that opinion follow:

"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." [349 U.S. 294, 75 S. Ct. 756.]

The Court then proceeded to announce the following principles which should receive attention of the District Courts:

"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 and by a facility for adjusting and reconciling public and private needs. 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."

From the foregoing it is clear that the law must be enforced but the Court is acutely conscious of the variety of problems of a local nature constituting factors to be considered in the enforcement. Further emphasis upon this point is found on 349 U.S. at page 298, 75 S.Ct. at page 755, where the Court said:

"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."

Bearing in mind that the only legal issue in this case pertains to a right guaranteed by the Constitution, this language coupled with the action of the Court, takes on significance which can hardly be over emphasized. It is elementary law that one deprived of a right guaranteed by the Constitution ordinarily is afforded immediate relief. Notwithstanding this fundamental principle, the Supreme Court in this case has seen fit to specifically declare that while the plaintiffs are entitled to the exercise of a constitutional right, in view of the grave and perplexing problems involved, the exercise of that right must be deferred. With that declaration the Court used equally forceful language indicating that it realizes that conditions vary in different localities. Consequently, instead of simply declaring the right and entering a mandate accordingly, it has seen fit in the exercise of its equity powers to not only defer until a later date the time when the right may be exercised, but to clearly indicate that the time of exercising such right may vary with conditions. A realization of the effect of this action on the part of the Court is of supreme importance to an understanding of the course to be pursued by the Courts of first instance. At the risk of being repetitious, I again recall that: Before laying down these principles, the Court considered and rejected the suggestion that Negro children should be forthwith admitted to schools of their choice; rejected *436 the suggestion that it formulate detailed decrees; rejected the suggestion that a special master be appointed by it to hear evidence with a view to recommending specific terms for such decrees and adopted the proposal that the Court in the exercise of equity powers direct an effective gradual adjustment under the order of the Courts of first instance. Further, the Court considered and rejected the suggestion that a specified rule of procedure be established for the District Courts but placed upon those Courts the responsibility of considering, weighing and being guided by conditions found to prevail in each of the several communities to be affected by their decrees.

In the absence of precedent, in undertaking to follow the mandate of the Supreme Court, the District Courts are confronted with the necessity of following an uncharted course in applying the sole legal principle announced in the First Brown case. One idea which emerges clearly is that procedural rules adopted in one locality may be altogether inapplicable to conditions in another.

Boiled down to its essence, in the Second Brown case the Court after pointing out that the local school authorities have the primary responsibility of finding a solution to the varied local problems, proceeded to observe that the District Courts are to consider whether the actions of the local authorities are in good faith; and that by reason of their proximity to local conditions those Courts can best appraise the conduct of the local authorities. It is then pointed out that in so appraising, the Courts should be guided by the traditionally flexible principles of equity for adjusting and reconciling public and private needs. To be considered is the personal interest of the plaintiffs, as well as the public interest in the elimination of obstacles in a systematic and effective manner. During this period the Courts should retain jurisdiction of the cases. The Court has here clearly and in unmistakable terms placed upon the District Judges the responsibility of weighing the various factors which prevail in the respective localities affected. There is here a recognition of the obvious fact that in one locality in which conditions permit, a change may be effected almost immediately. In other localities a specified period appropriate in each case may be feasible and a definite time limit fixed accordingly. In yet other communities a greater time for compliance may be found necessary. It is clear that the Court anticipated the application of a test of expediency in such cases so that an orderly change may be accomplished without causing a sudden disruption of the way of life of the multitude of people affected.

While the Supreme Court made no reference to yet another interest, there is one of a semi-public nature. This involves the teachers of the county, both white and colored, and their families, dependent upon them for support.

The conflicting rights and interests of racial and national groups in this country is nothing new. It is not confined to the Negro race but numerous illustrations might be used. A striking illustration is found in the situation of persons of Oriental origin who have come to this country. It is worthy of passing note to recall that the opinion appearing in the official reports immediately preceding the First Brown case involves the rights of persons of Mexican descent. Hernandez v. State of Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866. It must be borne in mind that these conflicts and the cases arising therefrom are the result of customs, traditions, manners and emotions which have existed for generations. In this particular case the customs to be changed have been not only generally accepted but repeatedly and expressly declared the law of the land since 1896.[1] While lawyers may have been conscious of the evolution of the law during this period and prepared to anticipate the possibility of a change, the average layman affected may not be charged with such prescience. Patience, time and a sympathetic *437 approach are imperative to accomplish a change of conditions in an orderly and peaceful manner and with a minimum of friction.

In seeking a solution it is necessary to know and to understand the background upon which the factual situation is cast. In this connection it is necessary to examine briefly the present conditions in Prince Edward County, Virginia, historically and as revealed by the record in this case.[2]

Prince Edward County being inland from the easily navigable tidal reaches of the streams watering that region, was not settled until the first half of the 18th century, after the power of the Indians had been broken. At that time the pattern of life in the Colony had become established and the early residents carried with them the manners and customs prevailing in the more populous regions of Virginia. By 1783 the population consisted of 1,552 white and 1,468 colored residents. The 1950 census showed a population of 15,398, with the white and colored races approximately equal in number. During the intervening years the relations between the races have been harmonious, with a minimum of friction and tension as compared with some regions. During several decades prior to the War Between the States the processes of orderly and gradual adjustment which were becoming increasingly evident were interrupted by being involved in the political issues confronting the growing nation, with particular reference to regional differences and the clash of economic rivalries of various sections. Unfortunately this resulted in accentuating racial tension and hostility which became somewhat acute at times. While these conditions were common to the southeastern and southern parts of the country, it was felt less in Prince Edward and the surrounding area than in many other sections.

In the days following 1861-65 the entire section was poverty stricken. For the rank and file of both races there was a struggle for existence and education was of secondary importance. It is true that in this situation with the local government controlled by members of the white race and with severely limited means, there was inequality in the division, but members of the Negro race were not excluded from sharing, although to a lesser extent. This was due in part to an understandable, if erroneous, feeling that those upon whom the greater tax burden fell should receive the greater benefit. During the second quarter of the present century the economy of the section most seriously concerned has shown a marked improvement. Due to that improvement, corresponding advantages have resulted in housing, education and knowledge on the part of both races. Marked improvement in racial relationship resulted although many firmly fixed ancient customs and manners remain. With an improvement in the economic condition of the county and the resulting increase in available financial resources, an awareness of public sentiment, the mandatory requirements of the Virginia constitution and statutes upon the subject, coupled with suits brought in Federal Courts in other localities, the responsible authorities of Prince Edward County made plans for the erection of new school buildings exclusively for Negroes, which are now concededly equal if not superior to those occupied by the white pupils.

Before these plans could be completed, this suit was filed. Since the decision in the Brown case these plans have been completed. The defendants, who are the Superintendent and members of the School Board, and as such charged with the "primary responsibility for elucidating, assessing and solving" their problems, have proceeded with the operation of the schools in the county in accordance with the practice which has prevailed. They have prepared and submitted to the Board of Supervisors of the county annual budgets for the operation of the schools. In this connection it is to be borne in mind that the defendants have *438 no authority under the law to levy or assess taxes nor to raise funds except in a limited manner by borrowing under certain conditions not pertinent here. Responsibility for providing local funds for the operation of schools rests upon the Board of Supervisors who are not defendants before this Court. The School Board consists of members appointed by the school trustee electoral board, the members of which in turn are appointed by the local state court. The members of the Board of Supervisors are elected by the people. Buttressed by popular demand of the people of the county since the decision in the First Brown case, evidenced in part by a petition signed by more than 4,000 residents, the Board of Supervisors has declined to allocate funds for the operation of schools on an annual basis. Instead it appropriates the necessary operating expenses on a monthly basis, with a publicly declared intention of discontinuing such appropriation if schools in the county are mixed racially at this time. In this connection attention is invited to the statutes recently enacted by the Virginia General Assembly under which the funds provided by the state may be withheld. Pending final interpretation of those statutes time valuable in the educational opportunities of the children involved might be irretrievably lost. Affidavits filed in this case and in no way controverted or mentioned by counsel for the plaintiffs, declare racial relations in the county to be more strained than at any time during the present generation.

In this state of facts I am called upon to fix a time when the defendants should be required to comply with the terms of the injunction issued by the three-judge court in obedience to the mandate of the Supreme Court. To do this I am to "adjust and reconcile public and private needs", by weighing and considering the personal interests of the plaintiffs as well as the interest of the public, in the elimination of obstacles in order that there may be a systematic, orderly and effective transition of the school system in accordance with the constitutional principles announced in the Brown case.

I believe the problems to be capable of solution but they will require patience, time and a sympathetic understanding. They cannot be solved by zealous advocates, by an emotional approach, nor by those with selfish interests to advance. The law has been announced by the Supreme Court and must be observed but the solution must be discovered by those affected under the guidance of sensible leadership. These facts should be self evident to all responsible people.

The children of both races, constituting an entire generation of this county, are the persons to be affected by whatever action may be taken and it follows that theirs is the real interest at stake, although closely connected with that of their parents and guardians.

Should the public schools of the county be closed for any reason, approximately three thousand children, including those of an age at which they are peculiarly impressionable, will be released from attendance. An interrupted education of one year or even six months at that age places a serious handicap upon the child which the average one may not overcome. Among those of the older age group there are some for whom it will mean the end of an education. Should the schools be resumed after an interruption, those among the younger group will be retarded in acquiring an education as compared with their contemporaries in other communities. With the release from discipline brought about by compulsory attendance at school, problems concerning juvenile conduct will be intensified with resulting injury to both children and the community and a resulting increase of racial tension with members of each race blaming the other for the lack of schools. In this connection it is to be remembered that the police protection of rural communities is different from that afforded in more populous areas. The salaries paid teachers in the state are not such as to enable them to accumulate a fund sufficient to support *439 themselves and their families over a protracted period of unemployment. Loss of employment would be a serious consequence to many teachers of both races who are established in the community. Tentative and substantial plans have been made for continuation by private means of the education of white children of the county. There is no such provision for Negro children. These considerations all involve the public and private interests of the community as distinguished from the quandary of the members of the School Board.

The admonition of the Supreme Court that the personal interests of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis is a consideration of which I am mindful. In response to a question from the bench, counsel for the plaintiffs stated that so far as he knew none of the orginal plaintiffs are now attending the schools. However, additional named plaintiffs have intervened and it is to be recalled that this is a class action. Should the plaintiffs be deprived of education or suffer an interruption in their education they will be handicapped. Concededly, their opportunities in so far as physical equipment and curriculum are concerned, are equal if not superior to those available to children of the white race. It has been held by the Court that segregation of white and colored children in public schools has a detrimental psychological effect upon the colored children. That is primarily the basis upon which the Brown case is founded. It is my belief that at this time a continuation of present methods could not be so harmful as an interrupted education.

Laying aside for the moment the probability of the schools being closed, in the present state of unrest and racial tension in the county it would be unwise to attempt to force a change of the system until the entire situation can be considered and adjustments gradually brought about. This must be accomplished by the reasonable, clear-thinking people of both races in that locality. This objective cannot be achieved quickly. It does not require the opinion of a psychologist to understand that disaffection, uneasiness and uncertainty of the adult world around them creates emotional problems for children concerned. A sudden disruption of reasonably amicable racial relations which have been laboriously built up over a period of more than three and a quarter centuries would be deplorable. At any reasonable cost, it must be avoided.

I conceive the immediate problems of the Court to be to determine whether the School Board is acting in good faith and whether the facts before the Court at this time are such that an order fixing a time limit for compliance with the decree is proper, taking into consideration the various factors outlined in the Brown case to which consideration has been given. I do not conceive it to be within the power of this Court to forecast conditions which may exist in the future. Stated differently, I must reach a conclusion based upon the facts existing at this time in the locality to be affected. The passage of time with apparent inaction on the part of the defendants of itself does not necessarily show non-compliance. This is illustrated by the fact that after the appeal in this case was granted in May, 1952, more than three years elapsed before the mandate of the Supreme Court was received. I find that the defendants by submitting the usual budget requesting appropriations have done all that reasonably could be required of them in this period of transition. Action which might cause mixing the schools at this time, resulting in closing them, would be highly and permanently injurious to children of both races. Relations between the members of the two races in the county would be adversely affected and a final solution of the vexing problems delayed as a consequence.

At this time the children of both races are being afforded opportunities for an education under an adequate system that has been formulated over the years. If an order should result in racially integrated schools, the school system of itself would change greatly. Plans should *440 be made to keep within bounds the automatic adjustments that would follow in order that society not be too drastically affected.

Many minds are now engaged in seeking an equitable solution of the problem, including those of the defendants. As was said by a great statesman, "The march of the human mind is slow".[3] It is inconceivable that any of the litigants or other persons affected would willingly see the public school system abolished or an interruption in the education of the children of the county. Either result would be disastrous to both public and private interests of the county.

It is imperative that additional time be allowed the defendants in this case, who find themselves in a position of helplessness unless the Court considers their situation from an equitable and reasonable viewpoint.

Considering all the factors, it is my conclusion that decision of the motion for further relief filed by the plaintiffs should be withheld at this time, with the reservation to the plaintiffs of the right to renew the motion at a later date after the defendants have been afforded a reasonable time to effect a solution.

In conclusion, attention is again called to the following language of the Supreme Court which is the law of this case and must be observed [349 U.S. 294, 75 S.Ct. 756]:

"But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." ORDER

For reasons stated in the opinion filed herein on January 23, 1957; it is

ORDERED that (a) the Court does not pass on the matters raised in the defendant's motion to dismiss the motion for further relief (including any and all questions involving the constitutionality of the statutes of the Commonwealth of Virginia there mentioned); (b) the motion that a three-judge court be convened to consider and pass on questions before the Court at this time is denied; and (c) the motion for further relief filed by the plaintiffs herein is denied at this time.

It is further ORDERED that this action be retained on the docket of this Court for such further proceedings as may be appropriate.

NOTES

[1] Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172.

[2] See "History of Prince Edward County, Virginia" Herbert Clarence Bradshaw 1955.

[3] Edmund Burke "Speech on the Conciliation of America".
 

Briggs v. Elliott (2)

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103 F. Supp. 920 (1952)
BRIGGS et al.
v.
ELLIOTT et al.
Civ. No. 2657.

United States District Court E. D. South Carolina, Charleston Division.
March 13, 1952.

Harold R. Boulware, Columbia, S. C., Spottswood Robinson, III, Richmond, Va., Robert L. Carter, Thurgood Marshall, New *921 York City, Arthur Shores, Birmingham, Ala., and A. T. Walden, Atlanta, Ga., for plaintiffs.

T. C. Callison, Atty. Gen. of South Carolina, S. E. Rogers, Summerton, S. C., and Robert McC. Figg, Jr., for defendants.

Before PARKER and DOBIE Circuit Judges, and TIMMERMAN, District Judge.

PARKER, Circuit Judge.

On June 23, 1951, this court entered its decree in this cause finding that the provisions of the Constitution and statutes of South Carolina requiring segregation of the races in the public schools are not of themselves violative of the Fourteenth Amendment of the federal Constitution, but that defendants had denied to plaintiffs rights guaranteed by that amendment in failing to furnish for Negroes in School District 22 educational facilities and opportunities equal to those furnished white persons. That decree denied the application for an injunction abolishing segregation in the schools but directed defendants promptly to furnish Negroes within the district educational facilities and opportunities equal to those furnished white persons and to report to the court within six months as to the action that had been taken to effectuate the court's decree. See Briggs v. Elliott, D.C., 98 F. Supp. 529. Plaintiffs appealed from so much of the decree as denied an injunction that would abolish segregation and this appeal was pending in the Supreme Court of the United States when the defendants, on December 21, 1951, filed with this court the report required by its decree, which report was forwarded to the Supreme Court. The Supreme Court thereupon remanded the case that we might give consideration to the report and vacated our decree in order that we might take whatever action we might deem appropriate in the light of the facts brought to our attention upon its consideration. Briggs v. Elliott, 342 U.S. 350, 72 S. Ct. 327. When the case was called for hearing on March 3, 1952, defendants filed a supplementary report showing what additional steps had been taken since the report of December 21, 1951, to comply with the requirements of the court's decree and equalize the educational facilities and opportunities of Negroes with those of white persons within the district.

The reports of December 21 and March 3 filed by defendants, which are admitted by plaintiffs to be true and correct and which are so found by the court, show beyond question that defendants have proceeded promptly and in good faith to comply with the court's decree.[1] As a part of a state-wide educational program to equalize and improve educational facilities and opportunities throughout the State of South Carolina, a program of school consolidation has been carried through for Clarendon County, District No. 22 has been *922 consolidated with other districts so as to abolish inferior schools, public moneys have been appropriated to build modern school buildings, within the consolidated district, and contracts have been let which will insure the completion of the buildings before the next school year. The curricula of the Negro schools within the district has already been made equal to the curricula of the white schools and building projects for Negro schools within the consolidated district have been approved which will involve the expenditure of $516,960 and will unquestionably make the school facilities afforded Negroes within the district equal to those afforded white persons. The new district high school for Negroes is already 40% completed, and under the provisions of the construction contract will be ready for occupancy sometime in August of this year. That the State of South Carolina is earnestly and in good faith endeavoring to equalize educational opportunities for Negroes with those afforded white persons appears from the fact that, since the inauguration of the state-wide educational program, the projects approved and under way to date involve $5,515,619.15 for Negro school construction as against $1,992,018.00 for white school construction. The good faith of defendants in carrying out the decree of this court is attested by the fact that, when in October delay of construction of the Negro high school within the consolidated district was threatened on account of inability to obtain release of necessary materials, defendants made application to the Governor of the State and with his aid secured release of the materials so that construction could go forward.

There can be no doubt that as a result of the program in which defendants are engaged the educational facilities and opportunities afforded Negroes within the district will, by the beginning of the next school year in September 1952, be made equal to those afforded white persons. Plaintiffs contend that because they are not now equal we should enter a decree abolishing segregation and opening all the schools of the district at once to white persons and Negroes. A sufficient answer is that the defendants have complied with the decree of this court to equalize conditions as rapidly as was humanly possible, that conditions will be equalized by the beginning of the next school year and that no good would be accomplished for anyone by an order disrupting the organization of the schools so near the end of the scholastic year. As heretofore stated, the curricula of the white and Negro schools have already been equalized. By the beginning of the next scholastic year, physical conditions will be equalized also. This is accomplishing equalization as rapidly as any reasonable person could ask. We dealt with the question in our former opinion where we said, 98 F.Supp. at 537:

"It is argued that, because the school facilities furnished Negroes in District No 22 are inferior to those furnished white persons, we should enjoin segregation rather than direct the equalizing of conditions. In as much as we think that the law requiring segregation is valid, however, and that the inequality suffered by plaintiffs results, not from the law, but from the way it has been administered, we think that our injunction should be directed to removing the inequalities resulting from administration within the framework of the law rather than to nullifying the law itself. As a court of equity, we should exercise our power to assure to plaintiffs the equality of treatment to which they are entitled with due regard to the legislative policy of the state. In directing that the school facilities afforded Negroes within the district be equalized promptly with those afforded white persons, we are giving plaintiffs all the relief that they can reasonably ask and the relief that is ordinarily granted in cases of this sort. See Carter v. County School Board of Arlington County, Virginia, 4 Cir., 182 F.2d 531. The court should not use its power to abolish segregation in a state where it is required by law if the equality demanded by the Constitution can be attained otherwise. This much is demanded by the spirit of comity which must prevail in the relationship between *923 the agencies of the federal government and the states if our constitutional system is to endure."

For the reasons set forth in our former opinion, we think that plaintiffs are not entitled to a decree enjoining segregation in the schools but that they are entitled to a decree directing defendants promptly to furnish to Negroes within the consolidated district educational facilities and opportunities equal to those furnished white persons. The officers and trustees of the consolidated district will be made parties to this suit and will be bound by the decree entered herein.

Injunction abolishing segregation denied.

Injunction directing the equalization of educational facilities and opportunities granted.

DOBIE, Circuit Judge, and TIMMERMAN, District Judge, concur.

NOTES

[1] The facts disclosed by the ordered and supplemental report are these: In order to qualify for state aid the old school district 22 has been combined with six other districts to become district 1, whose officials have requested and have by order been admitted as parties to this action. Teachers' salaries in the district have been equalized by local supplement, bus transportation has been instituted (none was furnished previously for either race), and $21,522.81 has been spent for furniture and equipment in Negro schools. Enabling legislation has been secured in the state legislature which permits the issuance of bonds of the school district up to 30% of the assessed valuation. (The enabling legislation was made possible by an Amendment to the Constitution of South Carolina passed in 1951. Const. art. 10, § 5, as amended, see 47 St. at Large, p. 14. The maximum had theretofore been 8%). Compliance with the requirements of the newly formed State Education Finance Commission has resulted in funds being made available to District 1 and a plan of school house construction based on a survey of education needs has been prepared, approved and adopted. Plans have been approved for the building of two Negro elementary schools at St. Paul and Spring Hill and advertisements for bids have been circulated in the press. The contract for remodeling the Scotts Branch Elementary School and for construction of the new Scotts Branch High School has already been let, construction has been commenced, and will, according to the record, be completed in time for the next school year.
 

Belton (Bulah) v. Gebhart

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91 A.2d 137 (1952)

GEBHART et al. v. BELTON et al. GEBHART et al. v. BULAH et al. BELTON et al. v. GEBHART et al. BULAH et al. v. GEBHART et al.

Nos. 15-18.

Supreme Court of Delaware.

August 28, 1952.

Writ of Certiorari Granted November 24, 1952.

*139 H. Albert Young, Atty. Gen., and Louis J. Finger, Deputy Atty. Gen., for appellants and cross-appellees.

Louis L. Redding, of Wilmington, and Jack Greenberg, of New York City, for appellees and cross-appellants.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and CAREY, Judge, sitting.

Writ of Certiorari Granted November 24, 1952. See 73 S. Ct. 213.

SOUTHERLAND, Chief Justice.

Two cases, alike in respect of basic principles of law, but differing in respect of the facts, were filed in the court below by certain citizens of Negro blood, seeking the admittance of the plaintiffs[1] to public schools maintained for white pupils only. The first case, brought against the members of the State Board of Education and certain other school officials, concerns the claim of the plaintiffs, Ethel Louise Belton and others, residents in the Claymont Special School District in New Castle County and all of high school age, to be admitted to the high school maintained in that district for white pupils. The second case, brought against the members of the State Board of Education and certain other school officials, concerns the claim of the plaintiff, Shirley Barbara Bulah, a resident of Hockessin, New Castle County, to be admitted to School No. 29, an elementary school at Hockessin maintained for white pupils.

The relief sought in each case is a declaratory judgment that the provisions of the Delaware Constitution and laws requiring segregation in the public schools are in contravention of the equal protection clause of the Fourteenth Amendment to the federal Constitution, and also an injunction restraining the defendants from denying the plaintiffs admittance to the schools maintained for white pupils.

The cases were consolidated and tried before the Chancellor, who rendered a judgment denying the prayers of the complaints *140 for a declaratory judgment but enjoining the defendants from refusing the plaintiffs admittance to the schools for whites. 87 A.2d 862.

It appears from the pleadings and testimony that the following issues were made below and determined by the Chancellor and are here for review:

I. Do the provisions of the Fourteenth Amendment forbidding a state to deny to any citizen the equal protection of the laws forbid segregation of pupils in the public schools on the basis of color?

II. If state-imposed segregation is not in itself unlawful, are the educational facilities afforded by the State to the plaintiffs substantially equal to those afforded white pupils similarly situated?

Upon the authority of applicable decisions of the Supreme Court of the United States the Chancellor resolved the first question in the negative. Upon a review of the evidence pertaining to the second question he held, first, as to the plaintiffs Ethel Louise Belton and others, that the educational facilities afforded them, i.e., those of the Howard High School in the City of Wilmington, maintained for Negro pupils, are substantially inferior to those of the Claymont High School; and second, as to the plaintiff Shirley Barbara Bulah, that the educational facilities afforded her, i.e., elementary school No. 107 at Hockessin, maintained for Negro pupils, are substantially inferior to those of School No. 29.

We take up these questions in the above order.

I. Segregation per se.

Article X of the Constitution of the State of Delaware provides in part as follows:

"Section 1. The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public school, unless educated by other means. "Section 2. In addition to the income of the investments of the Public School Fund, the General Assembly shall make provision for the annual payment of not less than one hundred thousand dollars for the benefit of the free public schools which, with the income of the investments of the Public School Fund, shall be equitably apportioned among the school districts of the State as the General Assembly shall provide; and the money so apportioned shall be used exclusively for the payment of teachers' salaries and for furnishing free text books; provided however, that in such apportionment, no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained. All other expenses connected with the maintenance of free public schools, and all expenses connected with the erection or repair of free public school buildings shall be defrayed in such manner as shall be provided by law."

Paragraph 2631, Revised Code of Delaware 1935 provides as follows:

"Sec. 9. Shall Maintain Uniform School System; Separate Schools for White Children, Colored Children, and Moors; Elementary Schools: The State Board of Education is authorized, empowered, directed and required to maintain a uniform, equal and effective system of public schools throughout the State, and shall cause the provisions of this Chapter, the by-laws or rules and regulations and the policies of the State Board of Education to be carried into effect. The schools provided shall be of two kinds; those for white children and those for colored children. The schools for white children shall be free for all white children between the ages of six and twenty-one years, inclusive; and the schools for colored children shall be free to all colored children between the ages of six and twenty-one years, inclusive. The schools for white children shall be numbered and the schools for colored children shall be numbered as numbered prior to the year 1919. The State Board of Education shall establish schools for children of people called Moors or Indians, and if any Moor or Indian school is in existence or shall *141 be hereafter established, the State Board of Education shall pay the salary of any teacher or teachers thereof, provided that the school is open for school sessions during the minimum number of days required by law for school attendance and provided further that such school shall be free to all children of the people called Moors, or the people called Indians, between the ages of six and twenty-one years. No white or colored child shall be permitted to attend such a school without the permission of the State Board of Education. The public schools of the State shall include elementary schools which shall be of such number of grades at the State Board of Education shall decide after consultation with the Trustees of the District in which the school is situated."

Do these provisions, in so far as they require segregation in the public schools based on race or color, offend against the provisions of the Fourteenth Amendment to the Constitution of the United States, forbidding any state to deny to any citizen the equal protection of the laws?

The leading case in the Supreme Court of the United States approving the right of a state to establish separate school systems for whites and Negroes is Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256. That case involved directly only segregation required by Louisiana law in railway passenger coaches. Mr. Justice Brown, however, supported his conclusion that the statute before the court was constitutional by pointing to state statutes establishing separate schools as affording a "common instance" of the validity of segregation laws, and observed that such statutes for separate schools had "been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced." 16 S. Ct. 1140. Even if this holding could be deemed dictum, the subsequent case of Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 93, 72 L. Ed. 172, admits of no such distinction. In that case a citizen of Chinese ancestry was denied admission to a state school maintained for white pupils because she was of the "yellow race" and was deemed to be "colored". Stating the question presented to be whether a Chinese citizen 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, Chief Justice Taft said:

"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."

After citing numerous state decisions upholding segregation in the public schools, the Chief Justice quoted with approval the language of Mr. Justice Brown in Plessy v. Ferguson, supra, dealing with that subject, and concluded:

"Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils; but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment."

These cases, we think, are decisive of the question. Moreover, in the recent decisions of Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114, and McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149, the Supreme Court of the United States has refused to overrule Plessy v. Ferguson, though expressly urged to do so.[2] It is nevertheless argued that the cases of Plessy v. Ferguson and Gong Lum v. Rice, supra, are without force today and that we should assume that they will be overruled. We can make no such assumption. "It is for the *142 Supreme Court, not us, to overrule its decisions or to hold them outmoded." Boyer v. Garrett, 4 Cir., 183 F.2d 582, per curiam. It is our duty to uphold the Constitution of our State, and not to abrogate its provisions except in so far and only in so far as required to do so by a ruling of the Supreme Court of the United States that they infringe upon rights protected by the federal Constitution. We must hold that segregation in the state's public schools is not illegal per se.

Our conclusion is supported by the following decisions of the federal courts, all rendered within the past three years: Corbin v. County School Board, 4 Cir., 177 F.2d 924; Carr v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14; Boyer v. Garrett, 4 Cir., 183 F.2d 582; Briggs v. Elliott, D.C., 98 F. Supp. 529; Brown v. Board of Education of Topeka, D.C., 98 F. Supp. 797; and Davis v. County School Board, D.C., 103 F. Supp. 337. A recent holding of the Supreme Court of Missouri is to the same effect. State ex rel. Toliver v. Board of Education, 360 Mo. 671, 230 S.W.2d 724.

A detailed review of these cases is unnecessary, since we are cited to no case holding to the contrary. They establish the principle that the constitutional guarantee of equal protection of the laws does not prevent the establishment by the state of separate schools for whites and Negroes, provided that the facilities afforded by the state to the one class are substantially equal to those afforded to the other (often referred to as the "separate-but-equal" doctrine). The question of segregation in the schools, under these authorities, is one of policy, and it is for the people of our state, through their duly chosen representatives, to determine what that policy shall be. When so determined, it must be given effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded. State ex rel. Toliver v. Board of Education, supra.

The refusal of the Chancellor to enter the declaratory judgment prayed for was therefore, in our opinion, correct.

But it is said that the uncontradicted evidence adduced by the plaintiffs shows that state-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the "separate-but-equal" doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it. The Supreme Court of the United States has said that the states may establish separate schools if the facilities furnished are substantially equal for all. To say the facilities can never be equal is simply to render the Court's holdings meaningless in effect, to say that that Court's construction of the Constitution is wrong. If so, it is for that Court to say so and not for us.

On the issue of segregation per se, we affirm the Chancellor's legal conclusion that it does not contravene the Fourteenth Amendment.

II. Substantial equality or inequality of educational facilities.

We turn to the second branch of the controversy. It is subdivided into two parts, the first concerning the claim that the facilities of Howard High School are substantially inferior to those of Claymont High School, and the second concerning the claim that the facilities of School No. 107 are substantially inferior to those of School No. 29.

Preliminarily it is to be observed that the facts in both cases, though developed largely from oral testimony, are almost wholly undisputed. The areas of disagreement concern the inferences of equality or inequality of facilities to be drawn from undisputed facts; hence, the rule requiring affirmance of the Chancellor's findings upon disputed issues of fact, if there be supporting evidence, has little application to this case. The holding in the case of Blish v. Thompson Automatic Arms Corporation, 30 Del.Ch. 538, 584, 64 A.2d 581, 604, cited *143 to us by plaintiffs, and our recent holding in Pierce v. Wahl, Del., 86 A.2d 757, concern findings upon sharply disputed issues of fact. We think it our duty to review the evidence and draw our own conclusions.

Before proceeding to an analysis of the evidence touching the comparison of the educational facilities of one school with another, we inquire whether there are any principles or standards evolved by the courts to determine what constitutes "substantial equality". As the Chancellor indicated, it is not difficult to state the rule but it is quite difficult to apply it. Identity or absolute equality in all respects is, as observed by Judge Dobie, "impractical and somewhat Utopian". Corbin v. County School Board, supra [177 F.2d 928]. Yet substantial equality in the essential and the more important aspects of educational opportunity there must be if segregation is to be upheld. There is thus imposed upon the courts the difficult and delicate task of drawing the line between the unimportant and incidental differences inevitably occurring in any comparison of two schools, whether for whites or Negroes, and a substantial disparity placing the plaintiff at a material disadvantage because of his race or color. We must avoid the tendency, natural enough in these circumstances, to magnify minor variations, and at the same time we must be vigilant to strike down unhesitatingly any instance of discriminatory treatment.

From the recent cases which have dealt with the question of "substantial equality" we extract the following general principles:

The right to equal opportunity is a personal one. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208. Rights under the equal protection clause are "personal and present". The state must provide education for the applicant "and provide it as soon as it does for applicants of any other group". Sipuel v. Board of Regents of University, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247; quoted and reaffirmed in Sweatt v. Painter, supra.

Since the right to equal opportunity is a personal one, it cannot be denied because of limited demand, nor depend on the number of applicants. State of Missouri ex rel. Gaines v. Canada, supra.

The opportunities afforded, as between white and Negro schools, need not necessarily exist in the same place or school district; the state may choose the place. Gong Lum v. Rice, supra; Winborne v. Taylor, 4 Cir., 195 F.2d 649; Trustees, Pleasant Grove Independent School District v. Bagsby, Tex.Civ.App., 237 S.W.2d 750; Pearson v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706.

Differences in travel, as between white and Negro pupils, do not necessarily show substantial inequality, particularly if the state furnishes transportation. Winborne v. Taylor, supra. But travel, coupled with inadequate transportation, may become sufficiently burdensome to constitute a substantial inequality. Corbin v. County School Board, supra.

The cases also disclose that in determining whether substantial equality or inequality exists, the usual approach is to determine whether, upon a comparison of the two schools concerned, the facilities of one are, upon over-all examination, so manifestly inferior to those of the other that the plaintiff necessarily suffers injury. See, for example, Parker v. University of Delaware, Del.Ch., 75 A.2d 225; Corbin v. County School Board, supra. Even in the absence of general inferiority, however, if it appears that the plaintiff, by reason of his race or color, is denied some one course of high school instruction indispensable to his education and available to others, substantial inequality exists as to him. State ex rel. Brewton v. Board of Education, 361 Mo. 86, 233 S.W.2d 697. And conversely, if the facilities are otherwise substantially equal, plaintiff is not injured because some courses offered in the white school are not offered in the Negro school if it appears that he is receiving substantially equal instruction in all the courses he desires to take. Brown v. Ramsey, 8 Cir., 185 F.2d 225.

A further question must be asked: What if some of the facilities at school A are superior to similar facilities at school B, and other facilities at school B are superior to similar ones at school A? Which *144 school is to be deemed the better? As will hereafter appear, the question is pertinent to one of the cases before us. We agree with the Chancellor that the comparison cannot be made by attempting to offset an advantage of one kind against a disadvantage of another kind. "Equivalency cannot be determined by weighing the respective advantages furnished to the two groups". Carter v. School Board of Arlington County, 4 Cir., 182 F.2d 531, 535. The Chancellor met this difficulty, however, by holding, as a matter of law, that if the facilities or educational opportunities available to the Negro are, as to any substantial factor, inferior to those available to white children similarly situated, the constitutional principle of "separate but equal" is violated. This conclusion, he held, followed from the consideration that a court could not say that such a substantial factor would not adversely affect the educational progress "of at least some of those concerned". 87 A.2d 868. But this is in effect to say that even if the plaintiff be not injured by the inequality, there are probably others who are now or who may hereafter be injured by it; and hence substantial inequality must be found in any such case. Upon the basis of the legal principles we have stated, particularly the principle that the right to the equal protection of the laws is a personal and present one, we think the rule announced by the Chancellor too sweeping and must disapprove it in so far as it purports to lay down a rule of universal application. We think that in a case where substantial inequality exists only in a few of the many factors entering into the comparison, the inquiry must be, Is the plaintiff injured by those inequalities? If he is not, he may not have relief. Cf. McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 35 S. Ct. 69, 71, 59 L. Ed. 169, involving a class suit to enjoin the enforcement of an Oklahoma statute requiring segregation in railway passenger coaches. The bill was dismissed by the trial court, and its decision was affirmed by the Supreme Court of the United States, Justice Hughes saying: "The complainant cannot succeed because someone else may be hurt." But if such substantial inequalities do injure the plaintiff, then he is entitled to relief. These conclusions follow, we think, from the principles we have above derived from the applicable decisions.

With these general observations in mind, we turn to a review of the evidence.

First. Howard High School and Claymont High School.

Ethel Louise Belton, as well as the other plaintiffs in this case, pupils of high school age, made application to enter the Claymont High School and were refused admittance as pupils solely on account of race or color. The plaintiff, Ethel Louise Belton, was at the time of trial fifteen years of age, and was attending Howard High School in the tenth grade, the lowest grade of the senior high school. She and all the other plaintiffs are residents of the Claymont Special School District in New Castle County, in which a public school with grades 1 to 12 (both elementary and secondary grades) is maintained for white pupils by the school authorities of the State and of the special school district. Howard High School is a public school with grades 7 to 12 (junior and senior high schools only), maintained for Negro pupils by the Board of Education of the City of Wilmington, with some supervision by the State Board of Education and substantial financial support from the State. It is the only public school in New Castle County offering a complete high school course to Negroes. The Claymont School is distant from plaintiff Belton's home about a mile and a half; the Howard School in Wilmington, about nine miles. The State provides no transportation from Claymont to Wilmington.

Under the administration of Howard High School is the Carver building in which certain vocational courses are given. Plaintiff Belton takes certain academic courses at the Howard building. On two days of the week, at about three o'clock in the afternoon, she leaves that building and walks to the Carver building, a distance of about nine city blocks, to take courses in shorthand and typewriting, which are given between the hours of three-thirty and five-thirty.

No other plaintiff testified, and the record fails to show whether any of them takes or expects to take any of the vocational courses given in the Carver building, nor, *145 if so, whether he is or would be required to take it after three o'clock in the afternoon.

Plaintiffs assert that the educational facilities and opportunities afforded them at Howard High School are substantially inferior in many respects to those offered at the Claymont School to white pupils similarly situated.

The following is a summary of the evidence relating to the facilities of the two schools:

(1) Public Funds.

No contention is made of any inequality of financial treatment. It affirmatively appears that Howard receives the same treatment as the other Wilmington high schools and (so far as comparison can be made) the same treatment as Claymont.

(2) Buildings.

The Howard building proper and the Claymont building are admittedly equal, except that the Howard gymnasium is insufficient for physical education, and some instruction must be given in the Walnut Y.M.C.A. gymnasium, distant three and one-half blocks from Howard. The Carver building is a very old one and markedly inferior. We approve the Chancellor's finding, not seriously challenged by the defendants, that the physical plant at Howard-Carver is substantially inferior to that at Claymont.

(3) Sites.

Claymont, in a suburban community, is on a site of fourteen acres; the Howard building proper, in an urban community, on a site of three and one-half acres. The Carver building is on a plot with about forty feet of land on either side of the building and no land in front or play space in the rear. There is testimony, not denied, that the space at Carver is inadequate as a playground for pupils in that building.

As between Claymont and Howard proper, the Claymont playing space is larger and includes regulation athletic fields, but Howard has the use, exclusive when required, of Kirkwood Park, a public park of ten and one-half acres adjacent to the site of the Howard building, which has, however, no regulation playing fields. As for organized athletics, Howard, like the Wilmington High School, has the use of the athletic fields of the P. S. duPont High School and the George Gray School, each at least half a mile distant from the Howard building.

So far as concerns physical education there is no testimony in the record that the playground space available to Howard-Carver is inadequate for that purpose. The inadequacy of Howard-Carver in respect of physical education appears to be attributable to the insufficiency of the gymnasium, above noted.

In respect of esthetic considerations, the Claymont site is admitted to be superior.

The defendants argue that, disregarding Carver, the difference in sites as between Claymont and Howard lies in esthetic considerations only and that this difference is not in itself a substantial inequality. We are inclined to agree that if these two schools were substantially equal in all other respects such a difference would hardly justify a finding of substantial inequality; but in this case esthetic considerations do not stand alone. All other considerations apart, the playground space of Carver is concededly inadequate. The Chancellor also found that the playing space available to Howard proper as well as at Carver is inadequate; but this finding appears to rest solely on the lack of regulation fields in Kirkwood Park, and we do not think that the evidence justifies a finding that any of the plaintiffs has suffered injury from this lack. However, for the purpose of the trial and decision of the case below Howard-Carver was treated as a unit, and on this basis the finding of substantial inequality in respect of the sites is justified.

In this connection we add an observation in connection with the Chancellor's comments with respect to the relative advantages and disadvantages of urban and suburban schools. In our opinion substantial inequality between two schools does not result from the mere fact that one is in the suburbs and another in the city. The question is always whether there are differences between the schools of such a nature as to make them substantially unequal. *146 Indeed the policy of consolidation of schools, apparently proceeding at an increasing rate, necessarily requires more and more pupils to attend a school situated in a community of a different type from that in which they live. It may reasonably be inferred that in the opinion of authorities on education school attendance in one's own community is not an important attribute of educational opportunity.

(4) Accreditation.

Both schools are approved by the Association of Colleges and Secondary Schools of the Middle States and Maryland.

(5) Curriculum.

Plaintiffs adduced testimony from an expert witness, who made a survey of both schools, to the effect that the Claymont curriculum in respect of college preparatory work was superior to that of Howard, seven courses, it was stated, being offered at Claymont that are not offered at Howard. It was established that one of these courses is no longer offered at Claymont, that four others (or their equivalents) are in fact offered at Howard, and that the other two are of minor importance. It is admitted that seven vocational courses are offered at Howard that are not offered at Claymont. There is no evidence that any of the plaintiffs is denied any course of instruction that he seeks. The Chancellor made no finding of inequality in respect of the curriculum, and we think he was right. The evidence shows that they are substantially equal.

(6) Faculty and Instruction.

Claymont has 404 high school pupils with 20 teachers, a pupil-teacher ratio of 20.1. Howard has 1274 pupils with 53 teachers, a ratio of 24. Of the teachers at Claymont, 59% hold master's degrees, and 36% bachelor's degrees. Of the teachers at Howard, 38% hold master's degrees and 49% bachelor's degrees. One teacher at Claymont holds no degree and five teachers at Howard (three of them vocational) hold no degree. The average annual salary at Howard is higher than that at Claymont by $169. We find no evidence in the record of the length of experience of the teachers of either school. The methods of instruction are modern in both schools.

A comparison of the size of the classes in eight different subjects shows that at Howard classes in five of these subjects were larger, though not substantially larger[3], than at Claymont, and in two subjects the Howard classes are slightly smaller. In one subject, Physical Education, the disparity is substantial, the average class at Claymont being 24.88 and at Howard 43.67, with some classes so large (one with an enrollment of 88) as probably to prevent satisfactory instruction.

Viewing the situation as a whole, we think that plaintiffs have clearly shown substantial inequality in one respect, that of instruction in Physical Education, which (we infer from the record) is a required course at Howard for all pupils except for those excused for cause. It is evidently related to the inadequacy of the Howard gymnasium, already noted. We cannot agree with the Chancellor, however, that the other differences (pupil-teacher ratio, formal teacher training, and average size of classes) represent substantial inequality. They seem to us to be such differences as might be found between any two high schools, whether for whites or Negroes. As against the differences in the formal training of teachers, it is to be noted that the testimony from both sides indicates that it is still not unusual for vocational teachers to lack academic degrees, and that the larger number of such teachers at Howard appears fairly attributable to the emphasis in Howard on vocational training. It further appears that the general policies of the Wilmington Board of Education, which include a policy to avoid as far as possible the employment of teachers without academic degrees, have been as nearly accomplished in Howard as in any other public school in Wilmington. As for the average size of the classes, it appears that the Chancellor's finding of substantial inequality was based in great part upon the fact that several classes at Howard exceeded twenty-five in number, and upon his conclusion *147 that a pupil-teacher ratio of twenty-five to one "has been fixed by the State educational authorities as a desirable maximum". This conclusion does not appear to be supported by the record. It is clear to us, from the testimony of the Director of Research of the State Board of Education and of the Assistant State Superintendent in charge of secondary schools, that the ratio derives directly from the legislative policy establishing the method of allotting state funds for the employment of teachers, and bears no necessary relation to the size of any particular class.[4] Moreover, since principals and specialists are included in the determination of the ratio for the allotment of funds, the actual ratio of pupils to teachers usually exceeds the ratio for fund allotments. A tendency to smaller classes is said to be desirable, but we do not find any formal fixation by the State authorities of a desirable maximum size. In short, we do not think the evidence on these matters discloses anything more than such variations as are inevitable concomitants of the administration of any school system.

(7) Equipment and Instructional Materials.

These are conceded to be equal.

(8) Libraries.

These are conceded to be equal. As is to be expected, the Howard Library is the larger.

(9) Physical and Mental Health and Nursing Services.

The Howard health services are admittedly superior and the Chancellor so found. An attempt was made to show that the nursing services at Claymont were superior, but this contention appears to be abandoned.

(10) Extra-curricular Activities.

It was testified that Claymont has seven extra-curricular activities (clubs of various kinds) and Howard only three. In addition to these clubs, however, individual students at Howard, selected by their classmates, participate in the Wilmington program of radio activities. The inclusion of the "Drivers Club" as one of the seven is a manifest error since Howard, like all high schools in the state, has a drivers' class.[5] It is a fair conclusion from the evidence that the organization of student clubs depends in large part upon individual interest. Differences in number and kind of extra-curricular activities thus reflect differences in interests and tastes and not inadequacy of facilities. We think these differences too insubstantial to support a finding of inequality.

(11) Travel.

As above stated, plaintiff Ethel Louise Belton is required to travel to Wilmington every morning on a public bus, and then, on two afternoons of the week, to walk nine blocks to the Carver building, which she leaves at five-thirty o'clock. She is within walking distance of the Claymont School, and it appears that the courses she takes at Carver are given at Claymont during the regular school day and before three o'clock in the afternoon. Moreover, high school pupils at Claymont who live farther than two miles from the school are furnished transportation in the school buses provided by the State school authorities. No transportation is furnished to the plaintiff. These facts, we think, constitute clear evidence of substantial inequality and unlawful discrimination on account of race or color. We approve the Chancellor's ultimate finding on this point. We should add, however, that we do not *148 agree that the question of travel, as a factor in determining substantial equality, is to be resolved on the basis of comparitive distance alone. There are other pertinent aspects of the question. The present trend toward consolidation of the public schools, mentioned above, inevitably entails many miles of travel for many pupils, white as well as Negro, particularly for those in the high schools. Thus this consequence does not flow from discrimination an account of race or color but from the general state policy with respect to the consolidation and location of schools a policy with which the courts have nothing to do. The recent decision of the Fourth Circuit Court of Appeals in Winborne v. Taylor, supra. supports this view. That case involved a consolidation of three Negro high schools in the towns of Plymouth, Roper and Creswell into one improved school at Roper to be equal in all respects (in fact superior) to the schools for whites. This consolidation required the Negro pupils at Plymouth to travel eight miles, and those at Creswell sixteen. The sole question before the court was whether the travel distance was so unreasonably burdensome as to justify a finding of substantial inequality. The court below found such travel to be a normal and usual incident of the school system and not unreasonably burdensome. The Court of Appeals affirmed [195 F.2d 651], observing that "[t]he drawing of fine lines and minute differences, in the face of manifest substantial equality, is a burden neither the law requires nor reason suggests." To the same effect is Brown v. Board of Education of Topeka, D.C., 98 F. Supp. 797.[6] As we have above stated, educational facilities need not be furnished in the same place or in the same school district. See the authorities cited supra.

We are accordingly unwilling to assent to the plaintiffs' argument that the travel distance here involved is in itself a substantial inequality. All the facts must be considered. But in the circumstances of this case, i. e., the extra travel to Carver and the failure of the State to supply transportation, such a finding must be made.

We have reviewed in detail the facts bearing upon the comparative educational facilities afforded by the two schools. We have found that the physical plant of Howard-Carver, including the sites, is substantially unequal to that of Claymont; that the classes in physical education at Howard are so large as probably to jeopardize satisfactory education; and that the plaintiff Belton is subjected to unequal and discriminatory treatment in respect of travel.

We think that these findings compel the conclusion that the plaintiff Belton is not afforded educational facilities substantially equal to those afforded white pupils at Claymont, and has suffered injury therefrom. In respect of the differences in facilities for and instruction in physical education, and in respect of transportation from Claymont to Wilmington, the other plaintiffs have also been injured. These inequalities are not incidental or unimportant differences, and it is our clear duty to say that they constitute unlawful discrimination on account of race or color. We so find, and the plaintiffs' suit must prevail.

Relief. There remains the question of the relief to be given. Both in the court below and here defendants press the argument that even if the finding of inequality was correct, the form of the decree, in effect directing the school authorities to admit plaintiffs to the Claymont School, was erroneous. The judgment, it is said, should have taken the form of a judgment directing the defendants to equalize the facilities and affording them a reasonable time within which to do so. In support of this contention, the Attorney General cites the cases of Briggs v. Elliott, supra, and Davis v. County School Board, supra, both of which are decisions of three-judge courts in federal districts in South Carolina and Virginia, respectively.

In the Briggs case, the court declared the facilities of the Negro schools unequal and directed the defendants to equalize the facilities promptly and to submit within six months a report showing the action taken. Plaintiffs appealed and the Supreme Court vacated the judgment and remanded the *149 case to the District Court to permit it to consider the report and to take whatever action thereon it might deem appropriate. 342 U.S. 350, 72 S. Ct. 327, 328. Upon the filing of the report, the District Court found that the action taken by defendants would result in the equalization of facilities by the opening of the next school year and again entered a judgment directing equalization of facilities. D.C., 103 F. Supp. 920. Plaintiffs have again appealed to the Supreme Court of the United States and probable jurisdiction has been noted. 72 S. Ct. 1078.

In the Davis case, the court enjoined the continuance of certain inequalities that it found to exist, and as to others directed the school authorities to pursue with diligence their program to replace the inadequate facilities with new ones or otherwise remove the inequalities.

Urging that, if inequality be found in this case, an order directing the defendants to equalize facilities will afford the plaintiffs adequate relief, the Attorney General shows that there is now under way in the City of Wilmington a far-reaching program for the betterment of facilities in the Negro schools. As to the Howard-Carver buildings, plans have been approved for the transfer of the junior high school pupils at Howard to another junior high school, for the enlargement of the Howard building, with additional equipment, and for the closing of Carver and the transfer of its pupils to Howard. It is said that all these changes are expected to be completed by September, 1953, and that they will completely equalize the Howard facilities. It is also shown that plans are under way to build a modern high school for Negroes at Middletown, New Castle County. Hence the defendants say that a decree to equalize the facilities will afford plaintiffs adequate relief.

There are two preliminary difficulties with the defendants' position. First, the Board of Education of the City of Wilmington, which has direct supervision of the Wilmington schools, is not a party to the cause; second, it is difficult to see how a court of equity could effectively supervise and direct the expenditure of state funds in a matter committed to the sound administrative discretion of the school authorities. But we prefer to rest our decision upon another ground. With deference to the decisions in the Briggs and Davis cases, which we have carefully examined and considered, we cannot reconcile the denial of prompt relief with the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal protection of the laws is a "personal and present" one, how can these plaintiffs be denied such relief as is now available? The commendable effort of the State to remedy the situation serves to emphasize the importance of the present inequalities. To require the plaintiffs to wait another year under present conditions would be in effect partially to deny them that to which we have held they are entitled. It is possible that a case might occur in which completion of equalization of facilities might be so imminent as to justify a different result, but we do not pass on that question because it is not presented. We think that the injunction of the court below, in effect commanding the defendants to admit the plaintiffs to the Claymont school, was rightly awarded.

Second. Hockessin School No. 29 and Hockessin School No. 107.

We take up the second case, involving the claim of the plaintiff Shirley Barbara Bulah to be admitted to Hockessin School No. 29.

The plaintiff, a Negro child eight years of age, is a resident of the village of Hockessin, New Castle County. At or near Hockessin the State Board of Education maintains two elementary schools with grades one to six, School No. 29 for white children and School No. 107 for Negro children. School No. 29 is a four-room school with four teachers and 111 pupils. School No. 107 is a two-room school with two teachers and 44 pupils. The school districts have separate boards of trustees, but are, we understand, largely overlapping in area though the boundaries are not identical. Plaintiff lives at a distance of two miles from School No. 107. No transportation is furnished by the State for pupils in School 107. The State provides a school bus for pupils in School 29, which passes *150 by plaintiff's house. In September, 1950, application was made on plaintiff's behalf for transportation to School 107 in the school bus serving School No. 29, and the request was refused. The present suit raises the general question of inequality of educational facilities furnished at School 107.

The following is a review of the pertinent evidence relating to a comparison of the two schools:

(1) Public Funds.

It is admitted that until recently School No. 29 was favored in the allocation of public funds. For the year 1949-1950 it was given $178.13 per pupil; No. 107 only $137.22 per pupil. This inequality has since been remedied and School No. 107 now receives equal or greater support, but the prior inequality is of importance, as will be seen.

(2) Buildings and Sites.

Both buildings are of brick, that of No. 29 on a site of five acres and that of 107 on a site of two acres. School No. 29 was built in 1932 at a cost of $55,438; No. 107, in 1921 at a cost of $21,382. No. 107 was until 1949 an oversized one-room school. In that year, its enrollment having reached 46, it was converted into a two-room school by installing a temporary movable partition through the middle of the room. According to the insurance records in the office of Business Administration of the State Board of Education, the present value of the building and equipment of No. 29 is $77,107; that of No. 107, $13,100. There was testimony on behalf of plaintiff that the appreciation of one and the depreciation of the other must reflect differences in maintenance upkeep and improvements. The inference is certainly not unreasonable. Some corroboration of this testimony is to be found in the record. Discrimination in the appropriation of public funds has already been noted. A comparative survey in 1951 of the equipment of the two schools shows the exterior painting and the floors to be in good condition in No. 29, but in poor condition in No. 107. The toilet facilities at No. 29 are substantially superior to those at No. 107. The fire hazard at No. 107 appears to be greater. No. 29 has an auditorium and a basement; No. 107, neither. These differences just mentioned may be attributable to the fact that one building is a four-room school and the other a two-room school; but, as hereafter pointed out, the State makes no point of this fact. Plaintiff further contended that the custodial service at No. 107 was inadequate.

Now it is to be noted that, although the plaintiff's evidence on the matter of the physical deficiencies in the building of School 107 rests in part on inference, and is lacking in many details, the defendants made no real effort to meet it. The State produced the school official who made the survey referred to, but he gave no evidence contradicting the testimony of plaintiff's witness either as to the past and present valuations of the school plants or as to the inference of disparity in maintenance, upkeep and improvements. There is testimony that the State in recent years has spent or allotted funds for School 107, in excess of those budgeted, for "delayed repairs". This fact would indicate an attempt to improve the condition of the building of No. 107, but the State proffered no testimony that such expenditures had been made or had substantially equalized the condition of the physical plants of the two schools, or would equalize them in the near future. Knowledge of the facts must certainly be attributed to the defendants, and this failure to adduce them, or to show that disparities in the physical plant would be promptly remedied, is significant.

Plaintiff's expert witness testified that he had made a comparison of the physical plants and equipment of the two schools by using the "Strayer-Englehart" score card.[7] Of a maximum possible rating of 644 *151 points, School 29 was given 594 points; School 107, 281 points. No doubt this evaluation included some items of relatively minor importance, but the over-all disparity is great. Again, the defendants failed to challenge this testimony in any effective way. The card does not appear to have been put in evidence nor was the weight accorded the various items upon it developed by cross-examination or otherwise. An attempt was made to prove that the Strayer-Englehart card is obsolete, but it was shown without contradiction that it was used recently in a survey of the District of Columbia schools made under Congressional authority. At all events, it embodied a comparison of the two schools by an experienced educator, and no such comparison was offered by the State.

As for the sites, that of No. 29 is conceded to be superior, but the defendants say that this superiority consists largely in the landscaping which is attributable, it is said, to the voluntary efforts of the parent-teachers association of School 29. The record on this point is not wholly clear. Defendants' list of items given by the P. T. A. refers to "large shrubbery and trees". Plaintiff urges that the State owns and maintains them, and that the source of its title is legally immaterial. We think it unnecessary to resolve this question. Taking the physical plants as a whole, No. 29 appears to be substantially superior and defendants failed to meet in any satisfactory way the plaintiff's case on this point. True, the defendants' witness who made the comparative survey above mentioned testified that the facilities of School 107 "are certainly equal to and better than the majority of two-teacher schools [in the State], both white and colored." This testimony was not controverted, but it does not reach the point. The case was tried by both sides upon the theory that School No. 29, a four-room school, was to be compared with School No. 107, a two-room school. Whether this theory is legally correct, or whether the comparison should have been between two schools of comparable size, or upon some other basis, we may not consider. The question is not before us. It was suggested by the Chancellor in a colloquy with counsel, but it was not followed up by the defendants. They accepted the plaintiff's tendered basis of comparison, and it cannot be changed here. Indeed the defendants do not suggest that it should be changed.

One other circumstance should be noted. The Chancellor himself inspected the two school buildings, and evidently based his finding of substantial inequality partly upon his own observation. To his conclusion from his own inspection we must give due weight.

We find that the physical plant of No. 29 is substantially superior to that of No. 107.

(3) Equipment.

There appears no substantial inequality in physical and instructional equipment, including the libraries, with the exception of medical supplies and equipment, which appear to be superior at No. 29. Some attempt was made to show inequality of instructional materials but the Chancellor made no finding of inequality on this point, and we think none is justified.

(4) Teachers.

The testimony shows that teachers at School No. 29 possess a superiority in formal training and are rated somewhat higher than the teachers at School No. 107. If these facts stood alone we should have difficulty in concluding that they represent anything more than accidental differences. However, they are to be viewed in the light of the admitted discrimination against School 107 in respect of the allotment of State funds. As above stated funds appropriated for the years prior to the year 1951-1952 were unequally allotted, to the detriment of School 107, and this inequality extended to teachers' salaries.[8] This *152 was a direct violation of our constitutional and statutory provisions, above quoted, requiring that in the apportionment of funds for the support of the public schools no distinction shall be made on account of race or color. Beginning with the fiscal year of 1951-1952 this inequality has been remedied. The plaintiff's testimony, however, related to conditions at School No. 107 in October, 1951, and thus tended to show that the effect of the prior wrongful apportionment of funds still persisted. The burden was clearly upon the defendants to show the extent to which the remedial legislation had improved conditions or would improve them in the near future. This the defendants failed to do. It is natural to suppose that with the equality of funds any substantial disparities will shortly be eliminated, but we must take the record as it was made below, and it affords some support for plaintiff's general contention of substantial inequality. In view of our other findings in the case it is unnecessary to evaluate the weight to be given to this factor.

(5) Transportation.

The facts with respect to this point have been stated. It admits of no doubt that the refusal of the defendants to furnish transportation to plaintiff, while furnishing it to pupils at School No. 29, constitutes substantial inequality of treatment because of race or color. The fact that there are insufficient Negro pupils to meet the requirements of defendants' rules for the establishment of a separate bus is legally irrelevant. State of Missouri ex rel. Gaines v. Canada, supra; Brown v. Ramsey, supra.

The above review of the evidence leads us to the conclusion that plaintiff has established, by a preponderance of the evidence, her contention that the facilities of School No. 107 are, to the extent set forth, substantially unequal to those at School No. 29, and that she has suffered injury.

We have already discussed, in the Howard-Claymont case, the matter of relief. It accordingly follows that the Chancellor's order in respect of the admittance of the plaintiff Bulah to School No. 29 must be affirmed.

In affirming the Chancellor's order we have not overlooked the fact that the defendants may at some future date apply for a modification of the order if, in their judgment, the inequalities as between the Howard and Claymont schools or as between School No. 29 and School No. 107 have then been removed. As to Howard, the defendants, as above stated, assert that when the Howard-Carver changes are completed, equality will exist. The Chancellor apparently thought the contrary. We do not concur in his conclusion, since we think that that question, if it arises, is one which will have to be decided in the light of the facts then existing and applicable principles of law. The Chancellor properly reserved jurisdiction of the cause to grant such further and additional relief as might appear appropriate in the future, and we construe this reservation to be a general reservation to any party to the cause to make an application to modify the order in any respect if and when changed conditions are believed to warrant such action.

We also note, with respect to both of the cases, that each cause is a so-called "spurious class suit" brought for the benefit of plaintiffs "and others similarly situated". We express no opinion whether, as to those "similarly situated" other than the plaintiffs, the judgment is res judicata or whether it has force only under the rule of stare decisis. Cf. 3 Moore's Federal Practice, § 23.11(3). That question is not before us.

In conclusion, we add one further observation applicable to both cases, that is, that there are some points of comparison of the schools developed in the evidence and discussed on the briefs that, for the sake of brevity, have not been specifically mentioned. For the benefit of counsel, we may say that we have not overlooked them, but have regarded them either as of minor importance or as cumulative only.

The judgment of the Court of Chancery is affirmed.

NOTES

[1] "Plaintiffs" in this opinion refers to the infant plaintiffs.

[2] See Education, Segregation and the Supreme Court, 99 Pa.L.Rev. 949.

[3] The average differences, expressed arithmetically, range from 2.65 to 8.51.

[4] The Act of June 30, 1949, 47 Laws of Del.Ch. 364, provides that no state funds (as distinct from funds raised locally) shall be appropriated for teachers' salaries to any school district in excess of one teacher for each unit. A unit is, in grades one to six, twenty-five pupils or major fraction thereof, and, in grades seven to twelve, twenty pupils or major fraction thereof. In the case of a twelve-grade school, the teachers may be divided between the elementary and secondary schools in any way desired. It is clear that reasonable variations in the size of classes are to be expected in all schools, both white and Negro.

[5] See 1951 Report of the State Superintendent of Public Instruction, p. 119.

[6] On appeal to the Supreme Court of the United States, probable jurisdiction noted, 72 S. Ct. 1070.

[7] "This score card is used by a person, a qualified person, making a survey of the school in checking and giving certain weights to the items that are listed on the score card. Those items in general cover site, building when I say `building' I am referring to classrooms, general service rooms, internal structure, service systems, fire protection system, cleaning systems, electric service systems, water supply systems, toilet system, movable equipment, classroom illumination and placement. When I refer to site, I am speaking of location, topography, and provisions for use." (Testimony of Dr. Paul F. Lawrence.)

[8] In addition to the evidence in the record for the year 1949-1950, we note similar disparities for teachers' salaries in the appropriation acts of 1947, Vol. 46 Laws of Del.Ch. 67, and 1945, Vol. 45 Laws of Del.Ch. 23.
 

Brown v. Board of Education

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U.S. Supreme Court

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Brown v. Board of Education of Topeka

Argued December 9, 1952

Reargued December 8, 1953

Decided May 17, 1954*

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

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. [Footnote 1]

[487]

In each of the 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,

[488]

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. Fergson, 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. [Footnote 2] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. [Footnote 3]

[489]

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. [Footnote 4] In the South, the movement toward free common schools, supported

[490]

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 nonexistent, 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. [Footnote 5] The doctrine of

[491]

"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. [Footnote 6] 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. [Footnote 7] 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. [Footnote 8] In more recent cases, all on the graduate school

[492]

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 reexamine 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. [Footnote 9] 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

[493]

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."

[494]

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. [Footnote 10]"

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [Footnote 11] Any language

[495]

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. [Footnote 12]

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. [Footnote 13] The Attorney General

[496]

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. [Footnote 14]

It is so ordered.

* 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. [Footnote 1]

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.

[Footnote 2]

344 U. S. 1, 141, 891.

[Footnote 3]

345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae.

[Footnote 4]

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. [Footnote 5]

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).

[Footnote 6]

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.

[Footnote 7]

See also Berea College v. Kentucky, 211 U. S. 45 (1908).

[Footnote 8]

In the Cummin 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.

[Footnote 9]

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.

[Footnote 10]

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.

[Footnote 11]

K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century 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).

[Footnote 12]

See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment.

[Footnote 13]

"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?"

[Footnote 14]

See Rule 42, Revised Rules of this Court (effective July 1, 1954).
 

Bolling v. Sharpe

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U.S. Supreme Court

Bolling v. Sharpe, 347 U.S. 497 (1954)

Bolling v. Sharpe


No. 8

Argued December 10-11, 1952

Reargued December 9, 1953

Decided May 17, 1954

347 U.S. 497

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment. Pp. 347 U. S. 498-500. (a) Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the States, the concepts of equal protection and due process are not mutually exclusive. P. 347 U. S. 499.

(b) Discrimination may be so unjustifiable as to be violative of due process. P. 347 U. S. 499.

(c) 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. Pp. 347 U. S. 499-500.

(d) In view of this Court's decision in Brown v. Board of Education, ante, p. 347 U. S. 483, 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. P. 347 U. S. 500.

(e) The case is restored to the docket for further argument on specified questions relating to the form of the decree. P. 347 U. S. 500.

Page 347 U. S. 498

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. [Footnote 1] The legal problem in the District of Columbia is somewhat

Page 347 U. S. 499

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. [Footnote 2]

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect. [Footnote 3] 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. [Footnote 4]" 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

Page 347 U. S. 500

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. [Footnote 5] 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.

[Footnote 1]

Brown v. Board of Education, ante, p. 347 U. S. 483.

[Footnote 2]

Detroit Bank v. United States, 317 U. S. 329; Currin v. Wallace, 306 U. S. 1, 306 U. S. 13-14; Steward Machine Co. v. Davis, 301 U. S. 548, 301 U. S. 585.

[Footnote 3]

Korematsu v. United States, 323 U. S. 214, 323 U. S. 216; Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 100.

[Footnote 4]

Gibson v. Mississippi, 162 U. S. 565, 162 U. S. 591. Cf. Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 323 U. S. 198-199.

[Footnote 5]

Cf. Hurd v. Hodge, 334 U. S. 24.

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