Brown v. Board of Education Brief for the United States on the Further Argument of the Questions of Relief

    ISTos. 1, 2, 3, 4, 5

J  it tfa j&prtmt fljjmtrt ijf tiw plates
. ■.. - r OCTOBER TERM, 1954 

No. i
OLIVER BROWN, ET AL., APPELLANTS 

BOARD OF EDUCATION OF TOPEKA, FT AL.

No. 2
HARRY BRIGGS, JR., ET AL., APPELLANTS 

v.
AA R. W. ELLIOTT. ET AL.

: No, 3
DOROTHY E. DAVIS, ET AL., APPELLANTS 

?■
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, ET AL.

No. 4
SPOTTSWOOD THOMAS BOLLING, ET AL., PETITIONERS

v.
C. MELVIN SHARPE, ET AL.

No. 5
FRANCIS B. GEBHART, ET AL., PETITIONERS 

v.
ETHEL LOUISE BELTON, ET AL.

BRIEF FOR THE UNITED STATES ON THE FURTHER 
ARGUMENT OF THE QUESTIONS OF RELIEF

HERBERT BROWNELL, Jr.,
Attorney General, 

SIMON E. SOBELOFF,
Solicitor General,

J. LEE RANKIN,
Assistant Attorney General, 

PHILIP ELMAN,
ALAN S. ROSENTHAL,

Special Assistants to the Attorney General, 
Department of Justice, Washington 25, D. O.



I N D E X

Page
I. This Court has full power to direct such relief as

will be most effective and just-----------------------  3
II. The vindication of the constitutional rights in­

volved should be as prompt as feasible---- ,—  4
III. The public interest requires an intelligent, orderly

and effective solution of the problems that 
may be encountered in complying with this 
Court’s decision in particular areas----------------  6

IV. The nature and extent of the problems that the
desegregation of public school systems may.
entail will vary from area to area------1----------  8

V. The formulation and execution of programs for 
transition to nonsegregated school systems 
should be undertaken by the responsible school 
authorities under the supervision of the courts
of first instance______________________________  22

VI. The cases should be remanded to the lower courts 
with directions to carry out this Court’s de­
cision as rapidly as the particular circum­
stances permit_______________________________  27

Conclusion_________________________________________  29

CITATIONS
Cases:

Brown v. Board of Education of Topeka, 347 U. S.
483________________________________ _____  2, 5, 6, 7, 8

Buchanan v. Warley, 245 U. S. 60______________  19
Sweatt v. Painter, 339 U. S. 629_______________  5

Federal Statutes:
Act of June 25, 1948, c. 646, § 39, 62 Stat. 992__ 23
E. S. 698 (28 U. S. C. (1946 ed.) 863)__________  23
28 U. S. C. 2106_______________________________  3

(i)



State Statutes: Page
D. C. Code (1951 ed.), § 31-670_______________  10

§ 31-671________________ 10
§31-1110_______________ 10
§ 31-1112_______________ 10

Maryland Annotated Code (Flack ed., 1951), Art.
77, §§ 42 (4), 208_______    10

Mississippi Code (1942 ed.) 6276______________  10
South Carolina Code (1952) §§ 21—251, 290_____  10

Miscellaneous:
Ashmore, The Negro and The Schools (1954), pp.

158-159__________________________________  15
New York Times, June 30, 1954, p. 19__________  30
Southern School Neivs, September 3, 1954, p. 3__ 10
Stone, The Common Law in the United States, 50

Harv. L. Rev. 4 ______________________________  19
U. S. Department of Commerce, Statistical

Abstract of the United States (1952), p. 355____  9
Williams and Ryan, Schools in Transition (1954) _ 22

II



O ctober T e r m , 1954

No. 1 1

Oliver B rown et al., appellants

v.
B oard of E ducation of T opeka, Shawnee 

County, K ansas, et al.

BRIEF FOR THE UNITED STATES ON THE FURTHER 
ARGUMENT OF THE QUESTIONS OF RELIEF

This brief is filed in response to the Court’s 
invitation to the Attorney General of the United 
States to participate in the further argument 
of these cases on the questions of relief. It is 
now the settled law of the land that segregation 
of white and colored children in the public schools 
of a State or of the District of Columbia is un­
constitutional. There remain for consideration 
and decision only the questions as to the de­
crees that should be entered in these cases in 
order to achieve compliance with the Court’s 
ruling.

1 Together with No. 2, Harry Briggs, Jr., et al. v. R. W. 
Elliott, et al.; No. 3, Dorothy E. Davis, et al. v. County 
School Board o f Prince Edward County, et al.; No. 4, Spotts- 
toood Thomas Bolling, et al. v. C. Melvin Sharpe, et al; and 
No. 5, Francis B. Gelhart, et al. v. Ethel Louise Belton, et al.

(1)



2

The views of the Government on these questions 
are set forth in this brief. At the outset it may be 
helpful to state, in summary fashion, our answers 
to the questions formulated by the Court (347 U. S. 
483, 495-96):

4. Assuming it is decided that segrega­
tion in public schools violates the Four­
teenth Amendment

(a) would a decree necessarily follow 
providing that, within the limits set by nor­
mal geographic, school districting, Negro 
children should forthwith be admitted to 
schools of their choice % No.

(b) or may this Court, in the exercise of 
its equity powers, permit an effective grad­
ual adjustment to be brought about from 
existing segregated systems to a system not 
based on color distinctions ? Yes.

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 ques­
tion 4 (b),

(a) should this Court formulate detailed 
decrees in these cases ? No.

(b) i f  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 de­
crees? No.

(d) should this Court remand to the 
courts of first instance with directions to 
frame decrees in these cases, and, if so, what



3

general directions should the decrees of this 
Court include and what procedures should 
the courts of first instance follow in arriv­
ing at the specific terms of more detailed 
decrees'? Yes. The provisions suggested 
for inclusion in the decrees are outlined at 
pp. 27-29, infra.

I
THIS COURT HAS FULL POWER TO DIRECT SUCH RELIEF 

AS W ILL BE MOST EFFECTIVE AND JUST

Question 4 need not detain the Court long. 
The Government, in its brief submitted on the 
previous reargument, reviewed the authorities 
bearing on the scope of the Court’s remedial 
powers (Br. 152—167), and concluded that the 
Court has “ undoubted power in these cases to 
enter such decrees as it determines will be most 
effective and just in relation to the interests, 
private and public, affected by its decision”  (Br. 
167). We noted that Congress has expressly 
empowered the Court, in fashioning effective re­
lief in eases coming before it, to enter “ such 
appropriate judgment, decree, or order, or re­
quire such further proceedings to be had as may 
be just under the circumstances”  (28 IT. S. C. 
2106). This provision reflects the breadth and 
flexibility of judicial remedies which are avail­
able to the Court. The shaping of appropriate 
relief in the present cases, as all will agree, in­
volves considerations of a most sensitive and



4

difficult nature. But, as was stated in our earlier 
brief (p. 154), “ we believe there can be no doubt 
of the Court’s power to grant such remedy as 
it finds to be most consonant with the interests 
of justice.”

II
THE VINDICATION OF THE CONSTITUTIONAL EIGHTS 

INVOLVED SHOULD BE AS PEOMPT AS FEASIBLE

The fashioning of relief in these cases does not 
call for the formulation or application of new or 
unusual legal principles. On the contrary, the 
task confronting the Court is one which presents 
itself whenever it has been judicially found that 
legal rights have been, and are continuing to be, 
violated. The question is always one of deter­
mining how, in the light of the facts presented 
and within the limits of the power possessed by 
it, the Court can best insure the removal of the 
condition of illegality in a manner comporting 
not only with the interests of the parties but also, 
to the extent it may be involved, with the public 
interest.

In many instances the solution to this problem 
is quite simple. The balancing of the relevant 
considerations may lead inescapably to the con­
clusion that the legitimate interests of all con­
cerned require only immediate termination of the • 
unlawful conduct. In such circumstances a court 
of equity normally does no more than to enter a 
decree enjoining that conduct. It is where the



5

scales are not so clearly tipped in that direction that 
the shaping of the appropriate remedy involves 
difficulties.

The Court recognized, in restoring these cases 
to the docket for further argument (347 U. S. 
at 495), that “ the formulation of decrees in these 
cases presents problems of considerable complex­
ity.”  These problems must be viewed in proper 
perspective. The starting point must be a recog­
nition that we are dealing here with basic con­
stitutional rights, and not merely those of a few 
children but o f millions. These are class actions. 
Under the Court’s decision the maintenance of 
segregated schools is in violation of the constitu­
tional rights not only of the individual plaintiffs 
but of all other “ similarly situated”  colored chil­
dren upon whose behalf the suits were brought. 
Relief short of immediate admission to nonsegre- 
gated schools necessarily implies the continuing 
deprivation of these rights. The “ personal and 
present”  right (cf. Sweatt v. Painter, 339 U. S. 
629, 635) of a colored child not to be segregated 
while attending public school is one which, if  not 
enforced while the child is of school age, loses its 
value. Hence any delay in granting relief is pra 
tanto an irretrievable loss of the right.

The unconstitutionality of racial segregation in 
public schools is no longer in issue. However, 
in considering whether any delay in granting full 
relief is justifiable, it must be borne in mind that 
continuation of school segregation has harmful



6

effects both on the individuals concerned and on 
the public. The right of children not to be seg­
regated because of race or color is not a technical 
legal right of little significance or value. It is a 
fundamental human right, supported by consider­
ations of morality as well as law. “ To separate 
[colored children] from others of similar age and 
qualifications solely because of their race generates 
a feeling of inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way unlikely ever to be undone”  (347 U. S. at 494). 
Racial segregation affects the hearts and minds of 
those who segregate as well as those who are segre­
gated, and it is also detrimental to the community 
and the nation.

In the absence of compelling reasons to the con­
trary, therefore, there should be no unnecessary 
delay in the full vindication of the constitutional 
rights involved in these eases, and if any delay 
is required, it should be kept to a minimum.

I l l
THE PUBLIC INTEREST BEQUIBES AN INTELLIGENT, 

ORDERLY AND EFFECTIVE SOLUTION OF THE PROB­
LEMS THAT M AY BE ENCOUNTERED IN  COMPLYING 
W ITH  THIS COURT’S DECISION IN  PARTICULAR AREAS

No objective examination of the problems of 
relief can overlook the fact that the impact of 
the Court’s decision holding racial segregation 
in public schools to be unconstitutional goes far 
beyond the areas and parties involved in these 
cases. As a binding precedent the decision re­
quires the termination of segregation in school



7

systems in more than one-third of the States and 
in the District of Columbia.

Because public education is, as the Court has 
recognized (347 U. S. at 493), “ perhaps the 
most important function of state and local gov­
ernments,”  there is a public interest to be served 
in p e r m ittin g  the transition to be carried out in 
an orderly manner, so as to avoid needless dis­
location or other impairment of the effective 
operation of the school systems concerned. A  
prime consideration in dealing with the problems 
of desegregation must be that the systems of 
public education in the United States should not 
be adversely affected. Public education is one 
of the glories of the United States, and an in­
dispensable source of its power. The richest 
resources of the United States are its citizens, 
and, as the Court has observed (347 U. S. at 493), 
education “ is the very foundation of good 
citizenship.”

It must be recognized that racial segregation 
in public schools is not a separate and distinct 
phenomenon. It is part of a larger social pat­
tern of racial relationships. The Court ’s decision 
in these cases has outlawed a social institution which 
has existed for a long time in many areas through­
out the country—an institution, it may be noted, 
which during its existence not only has had the 
sanction of decisions of this Court but has been 
fervently supported by great numbers of people as 
justifiable on legal and moral grounds. The 
Court’s holding in the present cases that segrega­
tion is a denial of constitutional rights involved an

322344— 54------ 2



8

express recognition of the importance of psycho­
logical and emotional factors; the impact of seg­
regation upon children, the Court found, can so 
affect their entire lives as to preclude their full 
enjoyment of constitutional rights. In similar 
fashion, psychological and emotional factors are 
involved—and must be met with understanding 
and good will—in the alterations that must 
now take place in order to bring about compliance 
with the Court’s decision. The practical difficul­
ties which may be met in effecting transition to 
nonsegregated public school systems should there­
fore be taken into account in determining the 
most effective means for ending school segrega­
tion in particular areas. The Court itself has 
recognized, in restoring these cases to the docket 
for further argument on the questions of relief, 
that these difficulties cannot be resolved by a 
single stroke of the judicial pen.

Broadly speaking, therefore, the decrees in 
these cases should be framed to require a transi­
tion which achieves the most expeditious com­
pliance with the constitutional mandate and at 
the same time permits the intelligent, orderly, 
and effective solution of the problems that may 
be encountered in desegregating school systems in 
particular areas.

IY
THE NATURE AND EXTENT OF THE PROBLEMS THAT

THE DESEGREGATION OF PUBLIC SCHOOL SYSTEMS
M AY ENTAIL W ILL VARY FROM AREA TO AREA

As the Court has noted (347 U. S. at 495), 
there is a “ great variety of local conditions,”



9

which will undoubtedly affect the nature and ex­
tent of the changes in public school systems and 
practices required to bring about compliance 
with its decision. Without elaborating in detail 
the structure and organization of the educational 
systems of the States and the District of Colum­
bia, it is not difficult to outline some of the kinds 
of problems which may arise in making a transi­
tion to nonsegregated systems.

1. The implementation of any program for the 
desegregation of public school facilities will be, 
of course, the responsibility of no single indi­
vidual or administrative body. Indeed, of all 
governmental activities, education is undoubtedly 
the most decentralized, its administrative and fi­
nancial base being shared between the states and 
their political subdivisions. And the extent of 
local participation is brought into perhaps sharper 
focus by the fact that of the approximately 
120,000 governmental units tabulated by the Cen­
sus Bureau in 1951, more than 70,000 were school 
districts.2

The division of authority between state and 
local school officials customarily is delineated by 
the state legislature. In most jurisdictions, the 
state board of education and school superintend­
ent have the statutory duty of making the broad 
policy decisions affecting the state school system 
as a whole, enforcing state laws relating to the 3

3 U. S. Department o f Commerce, Statistical Abstract of 
the United States (1952), p. 355.



10

operation of schools and, in general, insuring that 
all school units meet certain minimal standards. 
Local authorities, within the framework of state 
educational policy as embodied in statutes, regu­
lations and directives, exercise control over the 
intimate details of school management within their 
district or other operating unit.

The problems that will confront authorities 
on the state level thus will be principally ones 
of revising state laws and regulations which were 
tailored to fit the needs of a segregated school 
system. In South Carolina, for example, the 
statutory formula now employed in the distribu­
tion of state funds for teachers’ salaries re­
quires that minimum enrollment and average 
daily attendance in each district be determined 
separately for each race.3 In several jurisdic­
tions, the law provides for school officials whose 
duties are limited to the supervision of Negro 
schools; 3 4 * in others, the legislature has provided 
for entirely separate Negro and white school dis­
tricts encompassing the same area.6

3 South Carolina Code (1952), §.§21-251, 290. Cf. D. C. 
Code (1951 ed.), §§ 31-1110,31-1112.

4 See e. g., D. C. Code (1951 ed), §§ 31-670, 31-671; Anno.
Code o f Maryland (Flack ed., 1951), Art. 77, §§ 42 (4 ), 208.

6 See e. g., Mississippi Code (1942 ed.) 6276. In some states 
separate Negro school districts are maintained even in the 
absence of a legislative requirement. In Delaware, for ex­
ample, there are at least 42 such districts. It has been re­
ported that at the next session o f the Delaware General 
Assembly, legislation will be introduced to merge them with 
white school districts. See Southern School Neios, Septem­
ber 3,1954, page 3.



11

2. Because local school authorities have consid­
erable discretion respecting many facets of school 
administration, and because there is a wide va­
riety in local conditions, it can he expected that, 
even within the same state, no two school dis­
tricts will be faced with precisely the same prob­
lems in accomplishing an effective transition to 
nonsegregated school systems.

(a) In districts where there is more than one 
school, adjustments in the method employed for 
allocating students to particular schools may have 
to be made. In the majority of such districts, 
children are given little, if  any, choice as to the 
school they are to attend. Instead, each school 
in the district is assigned a particular attendance 
area and the pupil must enroll in the facility 
within whose attendance boundaries he resides.

Many factors are taken into consideration in 
drawing these boundaries, foremost among them 
being the size and character of the school, the 
geographical distribution of the school popula­
tion in the district, and the ease and safety of 
public travel to and from school. In the case of 
segregated school systems, boundaries are formu­
lated separately for white and colored facilities, 
with the result that the overall objective of mak­
ing the maximum use of total school facilities and 
minimizing travel difficulties is seldom achieved. 
Changes in the racial character of a neighbor­
hood frequently cause overcrowding in some 
schools while others operate at far below capacity.



12

Similarly, children of both races are often com­
pelled to travel long distances to reach the segre­
gated schools to which they are assigned.

The extent of the boundary alterations re­
quired, in the reformulation of school attendance 
areas on a non-racial basis, will vary. This is 
illustrated by the recent experience in the Dis­
trict of' Columbia in recasting attendance bound­
aries on a wholly geographical basis. In the 
neighborhoods where there is little or no mixture 
of the races, and where school facilities have been 
fully utilized, it was found that the elimination 
of the racial factor did not work any material 
change in the territory served by each school. 
In biracial neighborhoods, however, the objective 
of securing maximum utilization of facilities, on 
a non-racial basis, could be achieved only by 
making radical revisions in the area covered by 
the formerly Negro and white schools.

In connection with the formulation of new 
attendance boundaries, school districts may be 
called upon to review or alter prevailing prac­
tices regarding pupil transfers. Because it is 
almost impossible to fix boundaries which do not 
work a hardship on any pupils, many communi­
ties now permit enrollment outside the attendance 
area of residence in exceptional circumstances. 
Pupils on the secondary school level occasionally 
are allowed to attend a school at a distance from 
their homes because it offers courses of instruc­
tion not otherwise available. Specialized needs of



13

mentally or physically handicapped children may 
cause them to be grouped together for instruc­
tional purposes. And pupils not possessing an 
adequate knowledge of the English language 
sometimes are placed in separate schools until 
that knowledge is acquired. While the allowance 
of transfers and special assignments for reasons 
of this character is fully warranted and un­
doubtedly will be continued, some districts may 
be confronted with efforts by students to attend 
schools in other areas for the sole and unjusti­
fiable purpose of avoiding enrollment in a bi- 
racial facility.

(b) At the same time that procedures are de­
vised for the assignment of pupils to schools on 
a basis not involving distinctions of color, some 
districts may have to readjust the use of their 
facilities. In low population rural areas now 
maintaining two schools solely by reason of the 
dual system, educational and economic considera­
tions may dictate consolidation. There are sev­
eral ways in which this consolidation might be 
accomplished. Where existing structures are 
small or otherwise inadequate, a new school might 
be constructed to accommodate all children. An­
other solution might be to close one of the schools 
and transfer its pupils to the other.

In areas where there is a considerable dis­
parity in the quality and curricula of the former 
white and Negro schools, the problem of read­
justment may be more troublesome. Parents will



14

be understandably reluctant to send their chil­
dren to schools markedly inferior to those previ­
ously attended, or which do not provide courses 
of instruction that would have been begun or con­
tinued if no transfer had been required. While 
the long-range answer to a substantial part of 
this problem may be the improvement of sub­
standard schools, or the construction of new ones, 
school administrators may have to devise stop­
gap methods—not involving continuation of ra­
cial segregation—to protect the interests of chil­
dren now in school.

.(c) Teachers may have to be reassigned and 
changes made in the method of their selection, 
with due regard to the safeguarding of seniority 
and tenure rights. In areas which now have sep­
arate eligibility lists for white and colored 
teachers, new lists combining applicants of both 
races may be established.6 Salary differentials

6 This step was taken in both the District o f Columbia 
and in Baltimore. In the former, under the segregated sys­
tem, ISTegro and white applicants for teaching positions took 
separate examinations conducted by separate boards o f ex­
aminers. Performance on these qualifying examinations de­
termined position on the eligibility lists maintained for 
applicants o f each race and the lists in turn provided the 
sole basis o f appointment. In June 1954, the boards of ex­
aminers were merged into a single board under the direct 
chairmanship of the superintendent o f schools, teacher ex­
aminations were held on an integrated basis for the first time, 
and eligibility lists were consolidated. For each level o f



15

may have to be eliminated.* 7 8 And, on the super­
visory level, in communities maintaining separate 
supervisors for Negro schools a general realign­
ment of duties may he necessary.®

(d) Most rural and some urban areas provide 
transportation to and from schools. Communi­
ties which have maintained separate transporta­
tion facilities for the two races may have to 
reorganize schedules and routes. And some lo­
calities may discover that there will he a need
instruction, there is now but a single list on which no ref­
erence is made to the race o f any o f the named individuals.

In Baltimore, the compilation o f separate lists involved not 
only the grade received on a written examination, adminis­
tered to white and colored alike, but in addition the results 
o f an oral interview and the evaluation o f the applicant’s 
previous experience. In combining the lists, Baltimore did 
not disturb these criteria; nor was a change made in the 
established practice o f selecting any one o f the five highest 
ranking qualified individuals to fill a vacancy.

7 In 1952, the average annual salaries of white and Negro 
classroom teachers in 12 Southern states were $2,740 and 
$2,389, respectively. A  part of this differential may be ex­
plained by the fact that the average amount o f college train­
ing possessed by the white teachers was slightly higher. 
And between 1940 and 1952, the gaps in both salary and 
training averages were substantially diminished. See Ash­
more, The Negro and The Schools (1954), pp. 158-159.

8 Baltimore’s dual system, for example, had five assistant 
school superintendents serving on a systemwide basis and one 
assistant superintendent for Negro schools.

322844— 54 ■3



16

for additional vehicles or, conversely, that less 
equipment will be necessary.9

(e) A  few school districts may have to com­
pensate for differences in the educational back­
grounds of newly integrated pupils. In localities 
where the segregated Negro facilities were in­
ferior, colored students may find it difficult to 
pursue satisfactorily the same studies as white 
students in the same grades. School authorities 
faced with that problem may desire to give 
tests to determine the grade to which each student 
should be assigned. Or such tests might be em­
ployed for the purpose of selecting students for 
additional and intensified instruction in subjects 
in which they are deficient.

3. Because, as has been noted, the responsi­
bility for the financial support of public educa­
tion is distributed between the state and its 
subdivisions, the economic burdens incident to 
the implementation of integration also will fall 
upon several levels of' government. These bur­
dens, however, will flow largely from the present 
inequality, in a physical sense, of separate Negro 
schools. As a consequence, even if the dual sys­
tem were to continue, many areas would be faced

9 The requirement o f additional equipment will be gen­
erally restricted, of course, to places where present facilities 
have not been sufficient to provide adequate transportation 
for all pupils. It cannot therefore be regarded as, in any 
real sense, a problem arising from the elimination of 
segregation.



17

with the necessity of making substantial outlays 
for capital improvements.

Indeed, the financial cost of an “ equalization”  
program for separate schools unquestionably 
would be far greater. No matter how small the 
Negro population in the particular area, it would 
have to be provided with facilities and equipment 
equivalent in all respects to those provided in 
white schools. In similar circumstances, a non- 
segregated school system may find that the educa­
tional needs of all children will be satisfied by 
merely closing down the former Negro school 
and transferring its pupils to other facilities.

While, placed in perspective, economic con­
siderations would seem to furnish less of an ob­
stacle to the maintenance of integrated schools 
than to “ separate but equal”  schools, it should 
be noted that if expenditures per classroom unit 
are to be continued at current levels for white 
children, an additional annual expenditure of over 
160 million dollars will be required in the states 
involved and the District of Columbia. In respect 
to pupil transportation services, the estimated 
capital outlay is 40 million dollars. And the 
estimated cost of “ equalizing”  Negro schools is 
in excess of two billion dollars.10

4. In addition to problems of a purely ad­
ministrative or fiscal character, school authorities

10 These estimates have been furnished by the Office of 
Education, U. S. Department o f Health, Education and 
Welfare.



18

may have to cope with a certain amount of 
popular hostility towards the elimination of segre­
gation in public schools. This results from the 
fact that in each of the areas involved the dual 
system has existed for generations and is accepted 
by many as being a part of the “way of life” 
of the area. And the fear has been expressed in 
some quarters that the opposition to any de­
parture from the existing pattern will mani­
fest itself in the withdrawal of state aid to 
education and in other action on state and local 
levels designed to prevent or impair the effective 
operation of public schools on a nonsegregated 
basis.

We do not believe that there is warrant for 
presuming that responsible officials and citizens 
will tolerate violations of the Constitution.11 The 
solutions to these problems, like all others in a 
democracy, will emerge from the “ sober second

11 The well-publicized student disturbances which occurred 
recently in some localities certainly provide no basis for such 
a presumption. For one thing, these disturbances were 
isolated; in the overwhelming majority o f the areas which 
have begun or completed compliance with this Court’s deci­
sion, the adjustment has been remarkably free of untoward 
incident. Moreover, it appears to be the fact that the mis­
conduct was in substantial measure incited by a small num­
ber o f reckless and irresponsible individuals and groups, 
many from without the community, who took full advantage 
o f some students’ immaturity. And, as is so often true in 
such circumstances, where school and law enforcement au­
thorities made clear their determination neither to counte­
nance nor to capitulate to lawlessness, the disturbances ended 
as abruptly as they had started.



19

thought of the community, which is the firm base 
on which all law must ultimately rest.”  (Stone, 
The Common Law in the United States, 50 Harv. 
L. Rev. 4, 25.) Popular hostility, where found 
to exist, is a problem that needs to be recognized 
and faced with understanding, but it can afford 
no legal justification for a failure to end school 
segregation. Racial segregation in public schools 
is unconstitutional and will have to be termi­
nated as quickly as feasible, regardless of how 
much it may be favored by some people in the 
community. There can be no “ local option”  on 
that question, which has now been finally settled 
by the tribunal empowered under the Constitution 
to decide it.12

While general community hostility cannot serve 
as justification for avoiding or postponing com­
pliance with the constitutional mandate, it is 
relevant in determining the most effective 
method for ending segregation in the particular

12 “ That there exists a serious and difficult problem arising 
from a feeling o f race hostility which the law is powerless to 
control, and to which it must give a measure o f consideration, 
may be freely admitted. But its solution cannot be promoted 
by depriving citizens o f their constitutional rights and privi­
leges.”  Buchanan v. Warley, 245 IT. S. 60,80-81.

In any event, this would not be the proper occasion or 
time to adjudicate possible, attempts to evade or circumvent 
this Court’s decision. Such questions, like all other ques­
tions o f constitutional law, must be resolved when they 
arise concretely, in a factual setting, and when this Court 
can have the benefit o f findings of fact and the judgment 
•of the lower courts.



20

locality. School administrators will have an ob­
vious concern in obtaining public support and 
acceptance of the transition. The extent of the 
difficulties which may be encountered will de­
pend, of course, upon the state of local opinion, 
which in turn is influenced by such varied factors 
as the economic structure, geographical location, 
and relative numbers of whites and Negroes in 
the community. There is, however, a general 
recognition of the need for thoughtful advance 
preparations to resolve the problems of desegrega­
tion with as few disruptions as possible. I f  any 
lesson can be derived from past experiences in 
ending segregated school systems, it is the im­
portance of public confidence in the ability of 
school administrators to accomplish the adjust­
ment without, in the process, losing sight of or 
sacrificing the basic and continuing educational 
needs of all the children affected.13

13 In presenting his program for integration for the ap­
proval of the Board o f Education, the Superintendent of 
Schools of the District o f Columbia laid emphasis on the 
consideration o f the educational growth and welfare o f the 
school child. Thus, in justification of the proposal that each 
presently enrolled pupil be granted a limited option to remain 
in the school he now attends even though he does not reside 
within its new attendance boundaries, the Superintendent 
enumerated the ways in which this would provide “ stability, 
continuity and security in the educational experiences o f 
pupils during the transition period.” ( See brief for respond­
ents in No. 4, p. 13.)

While we do not describe the District o f Columbia pro-



21

In some areas it may be found advisable to 
preface the desegregation process with programs, 
not extending for more than a few months, 
designed to promote interracial understanding 
among students, teachers, and parents. Such 
preparatory measures were taken in many of the 
localities which have abolished segregated school 
systems in recent years. In one Hew Jersey 
community, for example, funds were appropriated 
to allow several selected teachers to attend a 
special workshop on human relations conducted 
at a state university. In addition, an extension 
course on the same subject was offered by school 
authorities during the year preceding desegrega­
tion and was well attended by teachers. In other 
areas civic, P-TA, religious, and fraternal groups 
took the initiative in establishing a favorable 
climate for making the transition. It was found 
that the efforts o f these groups were instrumental 
in reducing many of the pre-existing racial ten­
sions in the community, with the result that

gram in detail here, since this is undertaken in the brief for 
respondents in No. 4, we think it reflects credit upon those 
responsible for its formulation and execution. In every 
significant respect, the plan evidences painstaking care on the 
part o f school officials to realize the expressed objective o f 
an expeditious transition calculated “ to make the best use 
of the total resources of the school system in plant and per­
sonnel, to serve the best interest o f all the pupils, and to 
promote the general welfare o f the community.” (See brief 
for respondents in No. 4, p. 11.)



22

integration was accomplished speedily and with 
little or no serious friction or incident.14

Y
THE FORMULATION AND EXECUTION OF PROGRAMS 

FOR TRANSITION TO NONSEGREGATED SCHOOL SYS­
TEMS SHOULD BE UNDERTAKEN BY THE RESPONSIBLE 
SCHOOL AUTHORITIES UNDER THE SUPERVISION OF 
THE COURTS OF FIRST INSTANCE

For the reasons which have been summarized, 
it is clear that no single formula or blueprint is 
readily susceptible of application to all localities 
which must end segregation in their school sys­
tems. The measures essential to bringing about 
an expeditious, orderly, and effective transition 
in any given area will depend on the special 
conditions and problems in that area. And since 
there is wide variance in local conditions, what 
may be practicable in one community may be 
wholly inappropriate in another.

A  prerequisite to the formulation, initiation, 
and supervision o f any practicable program for 
ending segregation is a knowledge of the special 
problems and needs of the particular community. 
It is the responsible school authorities and the 
courts of first instance in each area who will have 
the greatest familiarity with local conditions and

14 The transitional experiences o f twenty-four communities 
in six states which within the past ten years desegregated 
their public school systems are the subject o f a study con­
ducted under the auspices of the Fund for the Advancement 
of Education o f the Ford Foundation. Williams and Eyan, 
Schools in Transition (1954).



23

who will be in the best position to evaluate their 
significance and effect in accomplishing desegre­
gation in as short a period as feasible. For this 
reason, this Court should not, either itself or 
with the assistance of a special master appointed, 
by it,15 delineate the precise steps that each of 
the defendants should take in ending segregation 
in the public school systems. Instead, the pri­
mary responsibility for both devising and carry­
ing out programs for the expeditious accomplish­
ment o f the required transition should be placed 
upon the defendants, to be exercised under the 
continuing direct supervision of the district courts 
or appropriate state courts.

This Court, we believe, should lay down stand­
ards for the guidance of the lower courts in 
carrying out its decision. A  remand for further 
proceedings, without more, would add to the un­
certainty and doubt which already exist and would 
only serve to make the process of adjustment 
more difficult.

Specifically, the lower courts should be in­
structed to require the defendants either to admit

15 While we do not believe that the Court should appoint a 
special master to hear evidence, there can be no question of 
its power to do so. In the 1948 revision o f the Judicial Code, 
Congress expressly repealed R. S. 698 [28 U. S. C. (1946 ed.) 
863] which had provided that “ [u]pon the appeal of any 
cause in equity, * * * no new evidence shall be received in 
the Supreme Court.” Act of June 25, 1948, c. 646, § 39, 62 
Stat. 992. We find nothing to suggest that the legislative 
purpose was other than to remove the restriction entirely.



24

the plaintiffs, and other Negro children similarly 
situated, forthwith to public schools on a non- 
segregated basis or to propose promptly, for the 
court’s consideration and approval, an effective 
program for accomplishing the transition as soon 
as practicable. In passing upon the acceptability 
of proposed programs, the criterion should be 
whether the defendants have sustained the bur­
den of showing that their particular program will 
bring about the total elimination of racial consid­
erations in the admission of pupils to public 
schools as rapidly as local conditions allow. And 
in determining whether the projected plan repre­
sents the most expeditious means of accomplishing 
an effective transition, the courts should be per­
mitted to take into account the scope of the 
administrative adjustments that are called for 
and the particular conditions existing in the com­
munity. Where there are no solid obstacles to 
desegregation, delay is not justified and should 
not be permitted. It is only where the lowTer 
court finds, upon clear and convincing evidence, 
that the defendants have met the burden of show­
ing that immediate (i. e., at the beginning of 
the next school term) completion of the desegre­
gation program is impracticable, that any delay 
is justifiable. And, in such a situation, the dis­
trict court should fix the shortest practicable pe­
riod for completing desegregation.

Although it would be helpful if  this Court could



25

specify outside limits for the period of desegrega­
tion, we do not think it would be feasible to 
do so at this time. Apart from the fact that 
there is no way of judging at this point what 
integration will involve in the particular area, 
maximum periods tend to become minimum pe­
riods. This Court should not enter any order 
which might have the practical effect of slowing 
down desegregation where it could he swiftly ac­
complished. The Court, however, should make 
it clear that any proposal for desegregation over 
an indefinite period will be unacceptable, and that 
there can be no justification anywhere for failure 
to make an immediate and substantial start to­
ward desegregation, in a good-faith effort to end 
segregation as soon as feasible.

Further, the lower courts should be instructed 
to be insistent that any interval permitted for the 
accomplishment of desegregation is being fully 
utilized. Any period during which little or 
nothing is being done to further the transition 
would serve no useful purpose and, indeed, would 
only intensify the difficulties. Whether time will 
be useful will depend on how it is used; delay 
solely for the sake of delay is intolerable. Where 
a period of time is allowed for transition, it 
should be for the sole purpose of enabling neces­
sary constructive measures to be taken, and not 
for the purpose of permitting postponement 
per se.



26

I f  the program for desegregation formulated 
by the defendants will remove, as expeditiously 
as possible, state-imposed or state-supported racial 
classifications of pupils in public schools, the lower 
courts should not substitute their judgment re­
specting the administrative features of the pro­
gram for that of the school authorities. The 
Constitution prohibits the maintenance of segre- 
gaged school systems. It does not compel the 
adoption of any specific type of nonsegregated 
system. The decisive inquiry is whether race or 
color has been entirely eliminated as a criterion in 
the admission of pupils to public schools. The 
essence of the Court’s decision in these cases is 
that there be no governmental action which en­
forces or supports school segregation.

This Court, we believe, should not in its present 
decrees give blanket approval to any particular 
programs for desegregation. The determination 
of the necessity for, and constitutionality of, any 
specific plan should not be made in vacuo. Flexi­
bility in responding to developing circumstances 
may become important. The experience in carry­
ing out a plan, once it is begun, may alter the 
assumptions on which it was based. For example, 
it may develop, after a plan is in operation, 
that it can be carried out more quickly than was 
anticipated at the outset, as has been demon-



27

strafed by the experience in the District of 
Columbia.

V I
THE CASES SHOULD BE REMANDED TO THE LOWER 

COURTS W IT H  DIRECTIONS TO CARRY OUT THIS 
COURTIS DECISION AS RAPIDLY AS THE PARTICULAR 
CIRCUMSTANCES PERMIT

For the reasons outlined above, the Government 
suggests that the Court should enter decrees (a) 
declaring that racial segregation in public schools 
is unconstitutional and that all provisions of law 
requiring or permitting such segregation are in­
valid, and (b) remanding the cases to the appro­
priate courts of first instance for such further 
proceedings and orders as are necessary and 
proper to carry out this Court’s decision.16 The 
decrees should contain specific provisions sub­
stantially as follows:

(1) That the lower court shall forthwith enter 
orders directing the defendants to submit within 
90 days a plan for ending, as soon as feasible, 
racial segregation of pupils in public schools sub­
ject to their authority or control.

16 In the Delaware case, No. 5, Gebhart v. Belton, the Attor­
ney General of Delaware, in his brief for petitioners (pp. 17- 
18), now agrees that the judgment o f the state Supreme 
Court should be affirmed. Accordingly, since the respond­
ents did not file a cross-petition for certiorari, it would 
appear that in the Delaware case this Court should simply 
enter an order of affirmance.



28

(2) That, unless a satisfactory plan is sub­
mitted to and approved by the lower court, it 
shall forthwith enter appropriate orders, by way 
of injunction or otherwise, directing admission 
of the plaintiffs and other children similarly situ­
ated to nonsegregated public schools at the be­
ginning of the next school term.

(3) That, upon submission of a plan by the 
defendants, the lower court shall promptly hold 
a hearing to determine whether it provides for 
transition to a nonsegregated school system as 
expeditiously as the circumstances permit. The 
defendants shall have the burden of proof on the 
question of whether, and how long, an interval 
of time in carrying out full desegregation is re­
quired. In approving any proposed program, the 
court shall make such modifications as may be 
required, and shall fix the earliest practicable 
date for completion of the program. And no 
program shall be sanctioned which does not call 
for the immediate commencement of the proced­
ures necessary to the accomplishment of the 
transition.

(4) That during the period, if  any, allowed 
for completion of the program for transition to 
a nonsegregated system, the lower court shall 
require the defendants to submit detailed pe­
riodic reports showing the progress made in end­
ing segregation. The court shall enter such fur-



29

tiier orders as may be required from time to time 
in order to insure against unnecessary delay in 
the execution of the program.

(5) That this Court shall retain jurisdiction for 
the purpose of making such further orders, if  
any, as may become necessary for carrying out 
its mandate. To this end the lower courts should 
be required to submit information reports to this 
Court at specified intervals showing in detail the 
actions taken in bringing about compliance with 
the requirements of the Constitution. (The Court 
may wish to appoint a special master to review 
such reports and to make appropriate recom­
mendations thereon to this Court and to the lower 
courts.)

CONCLUSION

The responsibility for achieving compliance 
with the Court’s decision in these cases does not 
rest on the judiciary alone. Every officer and 
agency of government, federal, state, and local, 
is likewise charged with the duty of enforcing 
the Constitution and the rights guaranteed under 
it. And, ultimately, it is the obligation of every 
citizen to respect and abide by the law, once it 
is authoritatively declared. We have no doubt 
that the American people and the officials through 
whom they act will meet these responsibilities



30

in the spirit, to quote the words of the Presi­
dent, of “ patience without compromise of 
principle.” 17

Respectfully submitted.
H erbert B rownell, J r.,

Attorney General. 
Simon E. Sqbelofe,

Solicitor General.
J. L ee R ankin ,

Assistant Attorney General. 
P hilip Elman ,
A lan S. R osenthal,

Special Assistants to the Attorney General. 
November 1954.
17 New York Times, June 30,1954, p. 19.

U. S. GOVERNMENT PRINTING OFFICE: 1954