Briggs v. Elliot Brief for Appellants

    59
iA/̂

IN  THE

(&mvt of tfyp Itrifrib States
October Term, 1952

f a *
&/>X

ffa<^U5

No. 101
f 1 X-- y y  f , 9
U  54 ^<,v- '

® : * r z
H arry B riggs, J r., et al., c ŷ*'"1

Appellants,
X

vs. j/%j0 V
<x^<v

E. W . Elliott, Chairman, J. I). Carson, et al., Members i x X * ) 
of B oard of Trustees of School D istrict No. 22,
Clarendon County, S. C., et al.

Appellees.

A ppeal from the U nited States D istrict Court for the 
E astern D istrict of South Carolina

BRIEF FOR APPELLANTS

Harold R. B oulware,
R obert L. Carter,
T hurgood Marshall, 
Spottswood W. R obinson, III, 

Counsel for Appellants.
W illiam T. Coleman, Jr.,
George E. C. H ayes,
George M. J ohnson,
W illiam R. Ming, Jr.,
Constance B aker M otley,
J ames M. Nabrit, J r.,
F rank D. R eeves,
Leonard W . Schroeter,
Jack B. W einstein,

of Counsel.



I N D E X
PAGE

Opinions ............................................................................  1
Jurisdiction ....................................................................... 1
Statement of the Case .........................................    2

The Constitutional Issue Involved ............................  2
First Hearing ...............................................................  3
First Appeal ................................................................. 7
Second Hearing ...........................................................  7

Errors Relied U p on .........................................................  9
Questions Presented ............................................. .........  10
Constitution and Statute Involved................................  10
Summary of Argument...................................................  11
Argument ..........................................................................  12

I. Legally Enforced Racial Segregation In The 
Public Schools of South Carolina Denies The 
Negro Children Of The State That Equality 
of Educational Opportunity and Benefit 
Required Under The Equal Protection Clause 
of the Fourteenth Amendment .........................  12

II. The Compulsory Segregation Laws of South 
Carolina Infect Its Public Schools With 
That Racism Which This Court Has Re­
peatedly Declared Unconstitutional In Other 
Areas of Governmental A ction ......................... 21

III. Neither The Decision in Plessy v. Ferguson
Nor the Decision In Gong Lum v. Rice Are 
Applicable To This C ase ..................................  26

IV. The Equalization Decree Does Not Grant
Effective Relief and Cannot Be Effectively 
Enforced Without Involving the Court In the 
Daily Operation of the Public Schools.......... 28

Conclusion ........................................................................  31



11

Air-Way Electric Appliance Co. v. Day 266 U. S. 71. 23
Armour & Co. v. Dallas, 255 U. S. 280...................... 30
Beasley v. Texas & Pac. By. Co., 191 U. S. 492.............  30
Belton et al. v. Gebhart et al.,—Del. —decided Aug. 28,

1952 ................................................................................  29
Bd. of Supervisors v. Wilson, 340 U. S. 909 .................  23
Brown v. Bd. of Education, Oct. Term, 1952, No. 8___  20
Buchanan v. Warley, 245 U. S. 6 0 ................................  21
Carr v. Corning, 182 F. 2d 14, 22, 31 (C. A. D. C. 1950). 30
City of Birmingham v. Monk, 185 F. 2d 859 (C. A. 5th

1951) cert. den. 341 U. S. 942......................................  21
Concordia Fire Ins. Co. v. Hill, 292 U. S. 535 .............  23
Edwards v. California, 314 U. S. 160..............................  23
Ex parte Endo, 323 U. S. 283 ........................................  22
Fisher v. Hurst, 333 U. S. 147......................................  28
Flood v. Evening Post Publishing Co., 71 S. C. 122, 50

S, E. 641 (1905) ...........................................................  24
Flood v. News and Courier Co., 71 S. C. 112, 50 S. E.

637 (1905) ................................................................. 24
Gong Lum v. Bice, 275 U. S. 78................................ 26, 27, 28
Hale v. Kentucky, 303 U. S. 613................................... 23
Hartford Steam Boiler Inspection & Ins. Co. v. Harri­

son, 301 U. S. 459 .......................................................  23
Hirabayashi v. United States, 320 U. S. 81.................  22
Javierre v. Central Altagracia, 217 U. S. 502.............  30
Jones v. Better Business Bureau, 123 F 2d 767, 769 

(C. A. 10th 1941) .........................................................  15
Korematsu v. United States, 323 U. S. 214.....................  22

Table o f Cases Cited
PAGE



I l l

PAGE

McLaurin v. Board of Regents, 339 U. S. 637.. 12,13, 20, 21,
23, 26, 28, 29

Mayflower Farms v. Ten Eyck, 297 U. S. 266...............  23
Missouri ex rel Gaines v. Canada, 305 U. S. 337 .. 23, 28, 29 
Morgan v. Virginia, 328 IT. S. 373 ..................................  23
Nixon y. Herndon, 273 U. S. 536....................................23, 24
Oyana v. California, 332 TJ. S. 633................................ 22, 23
Paton v. Mississippi, 332 U. S. 463................. .............  23
Pierre v. Louisiana, 306 TJ. S. 354..................................  23
Plessy v. Ferguson, 163 U. S. 537 ......................... 26, 27, 28
Rutland Marble Co. v. Ripley, 10 Wall. 339 .................  30
Shelley v. Kraemer, 334 TJ. S. 1 ....................................  22
Shepherd v. Florida, 341 TJ. S. 50....................................  23
Sipuel v. Bd. of Regents, 332 TJ. S. 631 .............  23, 28, 29
Skinner v. Oklahoma, 316 TJ. S. 535.............................. 22, 23
Southern Railway Co. v. Greene, 216 TJ. S. 400.............  23
Steele v. Louisville & N. R. Co. 323 TJ. S. 1 9 2 .............  22
Stokes v. Gt. A. and P. Tea Co., 202 S. C. 24, 23 S. E.

2d 823 (1943) ................................................... ........... 24
Sweat! v. Painter, 339 TJ. S. 629 . .12,13, 20, 23, 26, 27, 28, 29
Takahashi v. Fish and Game Commission, 334 TJ. S. 410

22, 23
Truax v. Raich, 239 U. S. 3 3 ............................................ 23
Texas & Pac. Ry Co. v. City of Marshall, 136 TJ. S. 393. 30
United States v. Cong, of Industrial Org., 335 U. S. 106. 22
United States v. Paramount Pictures, Inc., 334 U. S. 131 30
Weyl v. Comm, of Int. Rev., 48 F(2d) 811, 812 (CA 2d) 

1931) .............................................................................. 15



IV

American Teachers Assn., The Black d  White of Re­
jection for Military Service (1944) ........................... 25

Clark, Negro Children, Educational Research Bulletin 
(1923) .......................................    25

Dollard, Caste and Class in a Southern Town (1937) .. 24
Johnson, Patterns of Negro Segregation (1943).........  24
Klineberg, Race Differences (1935) ............................... 25
Klineberg, Negro Intelligence and Selective Migration 

(1935) ............................................................................  25
Montague, Man’s Most Dangerous Myth—The Fallacy 

of Race (1945) ............................................................... 25
Myrdal, An American Dilemma (1944) ........................... 24
Peterson and Lanier, Studies in the Comparative Ab­

ilities of Whites and Negroes, Mental Measurement 
Monograph (1929) .......................................................  25

Rose, America Divided: Minority Group Relations In 
the United States (1948) .............................................. 25

Notes

39 Col. L. Rev. 986 (1939) .............................................. 24
49 Col. L. Rev. 629 (1939) .............................................. 24
56 Yale L. J. 1059 (1947) ................................................ 24

Authorities Cited
PAGE



PAGE
Title 28, United States Code,

sections 1253, 2101 (b) ........................................... 2
sections 2281, 2284 ..................................................  3

Article XI, section 7, Constitution of South Carolina 2, 8,10 
section 5 ............................................................    14

Code of Laws of South Carolina (1942)
section 5377 .........................................................  2, 8,10

South Carolina Code (1935) Title 31, Chapter 122
sections 5321, 5323, 5325 ....................................  14,15

Statutes Cited



IN THE

(Urntrt of tin Itutefo States
October Term, 1952 

No. 101

----- --------------o------------------
Harry B riggs, J e., et al.,

vs,
Appellants,

R. W. E lliott, Chairman, J. D. Carson, et al., Members 
o f  B oard of T rustees of School D istrict No. 22, 
Clarendon Comity, S. C., et al.

Appellees.

A ppeal from the U nited States D istrict Court for the 
E astern D istrict of South Carolina

-------------------—-o----------------------

BRIEF FOR APPELLANTS 

Opinions

The majority and dissenting opinions filed at the con­
clusion of the first hearing are reported in 98 F. Supp. 
529-548 and appear in the record (R. 176-209). The opinion 
filed at the conclusion of the second hearing is reported in 
103 F. Supp. 920-923 and appears in the record (R. 301-306).

Jurisdiction

The judgment of the statutory three-judge District 
Court was entered on March 13, 1952 (R. 306). A petition 
for appeal was presented to the district court and allowed 
on May 10, 1952 (R. 309). Probable jurisdiction was noted 
by this Court on June 9, 1952 (R. 316).



2

This is an appeal from an order denying an injunction 
in a civil action required by an act of Congress to be heard 
and determined by a district court of three judges. The 
jurisdiction of the Supreme Court to review this decision 
by direct appeal is conferred by Title 28, United States 
Code, Sections 1253 and 2101(b).

Statement of the Case

The Constitutional Issue Involved

The complaint in this ease was filed by Negro children 
of public school age residing in School District No. 22, 
Clarendon Countv. South Carolina, and their respective 
parents and’ guardians, against the public school officials of 
said county and school district who, as officers of the State, 
maintain, operate and control the public schools for children 
residing in said district. It was alleged that appellees 
maintained certain public schools for the exclusive use of 
white children and certain other public schools for Negro 
children; that the schools for Negro children were in all 
respects inferior to the schools for white children; that the 
appellees excluded the infant appellants from the white 
schools pursuant to Article XI, section 7, of the Constitu­
tion of South Carolina, and section 5377 of the Code of 
Laws of South Carolina of 1942, which require the segre­
gation of the races in public schools; and that it was 
impossible for the infant appellants to obtain a public 
school education equal to that afforded and available to 
white children as long as the appellees enforced these laws.

The complaint sought a judgment declaring the inva­
lidity of these laws as a denial of the equal protection of 
the laws secured by the Fourteenth Amendment of the 
Constitution of the United States, and an injunction re­
straining the appellees from enforcing them and from 
making any distinctions based upon race or color in



3

the educational opportunities, facilities and advantages 
afforded public school children residing in said district.

Appellees in their answer joined issue on this question 
and admitted that in obedience to the constitutional and 
statutory mandates separate schools were provided for the 
children of the white and colored races; and that no child 
of either race was permitted to attend a school provided 
for children of the other race. In the Third Defense of 
Appellees’ Answer they alleged that the above constitu­
tional and statutory provisions were a valid exercise of 
the State’s legislative power.

The jurisdiction of a three-judge District Court was 
invoked pursuant to Title 28, United States Code, Sections 
2281, 2284, for the purpose of determining the validity of 
the provisions of the Constitution and laws of South 
Carolina requiring segregation of the races in public! 
schools. This issue was clearly raised, and was decided by 
upholding the validity of these provisions and by refusing 
to enjoin their enforcement.

First Hearing

At the opening of the trial (before a three-judge Dis­
trict Court as required by Title 28, United States Code, 
sections 2281 and 2284) appellees admitted upon the record 
that “ the educational facilities, equipment, curricula and 
opportunitieTafforded in School District No. 22 for colored 
pupils * * * are not substantially equal to those afforded 
in the District for white pupils.”  The appellees also stated 
that they did “ not opposean order finding, that inequalities 
in respect to buricErig^erpiipnieiit, facilities, curricula, and 
other aspects of the schools provided for the white and 
colored children of School District No. 22, in Clarendon 
County now exist, and enjoining any discrimination in 
respect thereto.”

These admissions were made part of the record by 
being filed as an amendment to the answer. The only issue



4

remaining to be tried was the question of the constitution­
ality of the lawgrequiring segregation of the races in public 
education as applied to the appellants.

During the trial the appellants produced testimony 
showing the extent of the physical inequality in the segre­
gated schools of Clarendon County and especially School 
District No. 22. Over the objection of the appellants1 
the appellees introduced testimony that a three per cent 
sales tax and authorization of a $75,000,000 bond issue for 
improvement of schools had recently been adopted by the 
State of South Carolina, and that the State Educational 
Finance Commission had just been organized to supervise 
the distribution of these funds and had not even set up 
rules or procedures.2 About a week before the trial 
Clarendon County had “ inquired”  about making an ap­
plication for funds.

The testimony of nine expert witnesses was introduced 
by appellants; two experts in the field of education who 
offered a comparison of the public schools; one expert in 
educational psychology, three experts in the respective 
fields of child and social psychology, one expert in political 
science, one expert in school administration, and one expert 
in the field of anthropology.

The uncontroverted testimony of these witnesses demon­
strated that the Negro schools in question were inferior 
in every material aspect to the white schools, and that 
similarly the caliber of education offered to Negro pupils 
was inferior to that offered to white pupils. The testimony 
of these witnesses also established the fact that the segrega­
tion of Negro pupils in these schools would in and of itself

1 On the grounds that equality within the meaning of the Four­
teenth Amendment did not include contemplated future action 
(R. 108).

2 It was admitted that although the school population of South 
Carolina was approximately forty to forty-five per cent Negro there 
were no Negroes on the Commission and no Negro employees of 
the Commission (R. 114).



5

preclude them from receiving educational benefits equal 
to those offered to white pupils or pupils in a non-segregated 
school. These witnesses not only established their qualifica­
tions in their respective fields but also supported their 
conclusions by objective and scientific authorities.

One of the experts in the field of child and social 
psychology testified that he had made special studies of 
the recognized methods of testing the effects of racial 
prejudice and segregation on children. He used a test 
of this type on Negro school children including the infant 
appellants in School District No. 22 a few days before 
the trial. From his general experience in this field and the 
results of his tests he testified:

“ A. The conclusion which I was forced to reach 
was that these children in Clarendon County, like 
other human beings who are subjected to an obviously 
inferior status in the society in which they live, have 
been definitely harmed in the development of their 
personalities; that the signs of instability in their 
personalities are clear, and I think that every 
psychologist would accept and interpret these signs 
as such.

“ Q. Is that the type of injury which in your 
opinion would be enduring or lasting? A. I think 
it is the kind of injury which would be as enduring 
or lasting as the situation endured, changing only 
in its form and in the way it manifests itself”  (B. 
89-90).

These witnesses testified as to the unreasonableness of 
segregation in public education and the lack of any scientific 
basis for such segregation and exclusion. They testified 
that all scientists agreed that there are no fundamental 
biological differences between white and Negro school pupils 
which would justify segregation. An expert in anthropology 
testified:



6

“ The conclusion, then to which I come, is differ­
ences in intellectual capacity or inability to learn 
have not been shown to exist as between Negroes and 
whites, and further, that the results make it very 
probable that if such differences are later shown to 
exist, they will not prove to be significant for any 
educational policy or practice”  (R. 161).

Another expert witness testified:
“ It is my opinion that except in rare cases, a 

child who has for 10 or 12 years lived in a community 
where legal segregation is practiced, furthermore, in 
a community where other beliefs and attitudes sup­
port racial discrimination, it is my belief that such 
a child will probably never recover from whatever 
harmful effect racial prejudice and discrimination 
can wreck”  (R. 134).

The appellees did not produce a single expert to contra­
dict these witnesses. There were only two witnesses for 
the appellees. The Superintendent of Schools for District 
No. 22 testified as to the reasons for the physical inequalities 
between the white and Negro schools. The Director of the 
Educational Finance Commission testified as to the pro­
posed operation of the Commission and the possibility 
of the appellees obtaining funds to improve public schools. 
The latter witness testified that from his experience as a 
school administrator in Sumter and Columbia, South 
Carolina, it would be “ unwise”  to remove segregation in 
public schools in South Carolina. On cross-examination, 
he admitted he had not made any formal study of racial 
tensions but based his conclusion on the fact that he had 
“ observed conditions and people in South Carolina”  all 
of his life. He also admitted that his conclusion was based 
in part on the fact that all of his life he had believed in 
segregation of the races.



7

The judgment on this hearing, one judge dissenting 
stated that neither the constitutional nor statutory pro­
visions requiring segregation in public schools were in 
violation of the Fourteenth Amendment and that appellants 
were not entitled to an injunction against the enforcement 
of these provisions by these appellees. The judgment also 
stated that the educational facilities offered infant appel­
lants were unequal to those offered to white pupils, and 
ordered the_appellees “ to furnish to appellants and other 
Negro pupils of said district educational facilities, equip­
ment, curricula and opportunities'lqual to those furnished 
white pupils.”

First Appeal

An appeal from this judgment was allowed on July 
20, 1951 and the appellees filed a motion to dismiss or 
affirm. On December 21, 1951 appellees filed their report 
in the District Court showing progress being made toward 
equalization of physical facilities in the public schools of 
Clarendon County. A copy of this report was forwarded 
to this Court. On January 28—L952. this Court, vacated 
the judgment of the District Court and remanded the 
case to that court in order to obtain the views of the trial 
court upon the additional facts in the record and to give 
the District Court an opportunity to take whatever action 
it might deem appropriate in light of the report (342 U. S. 
350). Mr. Justice Black and Mr. Justice Douglas dissented 
on the ground that the additional facts in the report were 
“ wholly irrelevant to the constitutional questions presented 
by the appeal to this court”  (342 U. S. 350).

Second Hearing

As soon as the mandate reached the District Court, 
appellants filed a Motion for Judgment requesting an early 
hearing and a final judgment granting the relief as prayed 
for in the complaint. Among the reasons for this motion 
appellants alleged:



8

“ It is, therefore, clear that plaintiff’s rights 
guaranteed by the Fourteenth Amendment are being 
violated and remain unprotected. The injury is 
irreparable. The only available relief is by injunc­
tion against the continued denial of their right to 
equality which is brought about by compulsory 
racial segregation required by the Constitution and 
laws of South Carolina. (So. Car. Const. Art. XI, 
Sec. 7: S. C. Code, 1942, Sec. 5377.)

“ Plaintiffs can get no immediate relief except 
by the issuance of a final judgment of this Court 
enjoining the enforcement of the policy of racial 
segregation by defendants which excludes Negro 
pupils from the only schools where they can obtain 
an education equal to that offered white children.

“ Plaintiffs can get no permanent relief unless 
this Court declares that the provisions of the Con­
stitution and laws of South Carolina requiring racial 
segregation in public schools are unconstitutional 
insofar as they are enforced by the defendants 
herein to exclude Negro pupils from the only schools 
where they can obtain an education equal to that 
offered white children”  (E. 258),

It appearing that School District No. 22 of Clarendon 
County had been combined with six other school districts 
into a single school district the district court made the 
appellees parties in their present capacities as officials of 
School District No. 1 (R. 262-263; 306).

The second hearing was held on March 3, 1952, at which 
time the appellees filed an additional report showing 
progress since the December report. The appellants did 
not question the accuracy of these statements of physical 
changes in the making.



9

At the second hearing the District Court ruled that the 
question of the decision on the validity of segregation 
■statutes was closed by the original judgment and could not 
be argued at that hearing. The District Court also refused 
to rule that, aside from the question of the validity of these 
statutes, the admitted lack of equality of facilities entitled 
appellants to an injunction restraining appellees from ex­
cluding them from an opportunity to share the superior 
schools and the inferior schools on an equal basis without 
regard to race and color.

On March 13, 1952, the District Court filed an opinion 
and a decree again finding that the educational facilities 
for Negroes were not substantially equal to those afforded 
white pupils. Despite this finding the District Court held 
that “ plaintiffs are not entitled to an injunction forbidding 
segregation in the public schools of School District No. 1” .

Errors Relied Upon

The District Court erred:

I
In refusing to enjoin the enforcement of the laws of 

South Carolina requiring racial segregation in the public 
schools of Clarendon County on the ground that these 
laws violate rights secured under the equal protection 
clause of the Fourteenth Amendment.

II

In refusing to grant to appellants immediate and effec­
tive relief against the unconstitutional practice of excluding 
appellants from an opportunity to share the public school 
facilities of Clarendon County on an equal basis with other 
students without regard to race or color.

III

In predicating its decision on the doctrine of Plessy v. 
Ferguson and in disregarding the rationale of Sweatt v. 
Painter and McLaurin v. Board of Regents.



10

Questions Presented

I
Whether legally enforced racial segregation in the 

public schools of South Carolina denies the Negro chil­
dren of the state that equality of educational opportunity 
and benefit required under the equal protection clause of 
the Fourteenth Amendment.

II
Whether the compulsory segregation laws of South 

Carolina infect its public schools with that racism which 
this Court has repeatedly declared unconstitutional in other 
areas of governmental action.

III
Whether the decision in Plessy v. Ferguson or the deci­

sion in Gong Lum v. Bice are applicable to this case.

IV
Whether the equalisation decree in this case grants 

effective relief and can be effectively enforced without in­
volving the District Court in supervising the daily opera­
tion of the public schools.

Constitution and Statute Involved

Article XI, section 7 of the Constitution of South 
Carolina provides:

“ 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 pro­
vided 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.”



11

Summary of Argument

Although the decisions in the case of Sweatt v. Painter 
and McLaurin v. Oklahoma State Regents involved state 
afforded education on the graduate and professional level, 
the underlying principles of these decisions are applicable 
and controlling in this case involving public education on 
the elementary and high school level.

Applying these principles, the basic question in the in­
stant case is: “ To what extent does the equal protection 
clause of the Fourteenth Amendment limit the power of a 
state to distinguish between students of different races ’ ’ in 
the educational benefits afforded on the elementary and 
high school level of public education. Further, the equality 
or inequality of physical facilities are not decisive of this 
question. Consideration must be given not only to the 
measurable physical facilities but to all of the factors which 
have educational significance. Finally, if it appears from 
the record, as it does in this case, that segregation is a 
major handicap to the segregated pupils, then the state 
laws requiring this segregation violate the equal protec­
tion clause of the Fourteenth Amendment.

The laws here challenged are likewise unconstitutional 
under a uniform line of decisions of this Court striking 
down governmental classifications based solely on race or 
ancestry. The laws of South Carolina segregate Negro 
public school pupils from other public school pupils solely 
because of race or color. Such a classification based on race 
alone cannot be justified as a classification based upon any 
real difference which has pertinence to a valid legislative 
objective.

The District Court was in error in rejecting the basic 
principles set forth in the Sweatt and McLaurin decisions 
as being inapplicable to the instant case despite the uncon­
troverted expert testimony showing the injury to the seg­
regated Negro children on the public elementary and high 
school level. Neither the case of Plessy v. Ferguson nor 
the case of Gong Lum v. Rice relied on by the majority of



12

the District Court are decisive of the issues in this case. 
The final order of the District Court in upholding the segre­
gation laws of the State of South Carolina cannot bring 
about the equality of educational benefits required.

ARGUMENT

I
Legally enforced racial segregation in the public 

schools of South Carolina denies the Negro children 
of the State that equality of educational opportunity 
and benefit required under the equal protection clause 
of the Fourteenth Amendment.

In its recent opinions on the constitutionality of racially 
segregated public education, this Court has refused, on the 
one hand, to give blanket sanction to such state racism, but 
refrained on the other hand, from formulating a general 
rule that all forms of governmentally imposed segregation 
offend the equal protection clause of the Fourteenth 
Amendment. Without saying that such racial segregation 
is per se valid or per se invalid this Court has tested each 
complaint against segregated education in terms of whether 
or not—taking into account the nature, purpose and cir­
cumstances of the educational program—the segregated 
person or group is in some real and significant sense de­
nied educational benefits available to the rest of the com­
munity.

In two recent cases, Sweatt v. Painter, 339 U. S. 629 and 
McLaurin v. Oklahoma State Regents, 339 U. S. 637, this 
Court considered the question: “ to what extent does the 
equal protection clause of the Fourteenth Amendment limit 
the power of a state to distinguish between students of dif­
ferent races in professional and graduate education in a 
state university?”  (339 U. S. 629, 631).

In neither case were physical inequalities decisive of the 
issue. In the Sweatt case, there were quantitative differ­
ences between the white and Negro law schools with respect



13

to such matters as the number of faculty members, the size 
of the libraries and the scope of the curricula. This Court, 
however, laid stress upon those “ more important”  factors 
which are “ incapable of objective measurement” —factors 
such as the relative reputation of the faculties, the relative 
experience of the school administration, the relative status 
and influence in the community of the alumni, and the rela­
tive ease with which the two student groups could associate 
with fellow students and with their future professional 
colleagues. This Court concluded that Sweatt was entitled 
to claim his “ full constitutional right”  to a legal educa­
tion equivalent in all respects to that offered by the state 
to students of other races and that such education was not 
available to him in a separate law school.

In the McLaurin case, there was no question of in­
equality insofar as buildings, faculties or curricula were 
concerned because McLaurin was actually in the same 
classroom with the other students. The only issue in that 
case was whether the enforced racial segregation of Mc­
Laurin inherent in his being seated apart from the other 
students denied to him educational benefits equivalent to 
those offered other students. This Court held that it did.

Although the Sweatt and McLaurin cases arose in the 
field of higher education, the constitutional issue is the 
same at every level of public education: Does state-imposed 
segregation destroy equality of educational benefitsf

The Sweatt and McLaurin cases teach not only that this 
is the issue which must be resolved in every case presented 
for judicial review, but also that in seeking the answer the 
Court will consider the educational process in its entirety, 
including, apart from the measurable physical facilities, 
whatever factors have been shown to have educational sig­
nificance. And where the record shows that segregation 
is a major handicap to education, the Court will hold that 
the difference in treatment is the type of state-imposed 
inequality which is prohibited by the equal protection clause 
of the Fourteenth Amendment.



14

Any other conclusion would be inconsistent with the 
rule recognized in the Sweatt and McLaurin cases that 
where the state-imposed racial restrictions impair the 
ability of the segregated student to secure an equal edu­
cation because of the denial of any kind of educational bene­
fits available to other students, the aggrieved student may 
invoke the protection afforded by the equal protection 
clause of the Fourteenth Amendment to enjoin the main­
tenance of state-imposed barriers to a racially integrated 
school environment.

This rule cannot he peculiar to any level of public edu­
cation. Public elementary and high school education is no 
less a governmental function than graduate and profes­
sional education in state institutions. Moreover, just as 
Sweatt and McLaurin were denied certain benefits charac­
teristic of graduate and professional education, it is appar­
ent from this record that appellants are denied educational 
benefits which the state itself asserts are the fundamental 
objectives of public elementary and high school education.

South Carolina, like the other states in this country, 
has accepted the obligation of furnishing the extensive 
benefits of public education. Article XI, section 5, of the 
Constitution of South Carolina, declares: “ 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. ’ ’ Some 410 pages of the Code of Laws of South 
Carolina deal with “ education” . Title 31, Chapters 122-23, 
S. C. Code, pp. 387-795 (1935). Provision is made for 
the entire state-supported system of public schools, its 
administration and organization, from the kindergarten 
through the university. Pupils and teachers, school build­
ings, minimum standards of school construction, and speci­
fications requiring certain general courses of instruction 
are dealt with in detail. In addition to requiring that the 
three “ B ’s ”  must be taught, the law compels instruction 
in “ morals and good behaviour”  and in the “ principles”  
and “ essentials of the United States Constitution, including



15

the study of and devotion to American institutions.”  Title 
31, Chapter 122, sections 5321, 5323, 5325, S. C. Code (1935).

South Carolina thus recognizes the accepted broad pur­
poses of general public education in a democratic society. 
There is no question that furnishing public education is 
now an accepted governmental function. There are com­
pelling reasons for a democratic government’s assuming 
the burden of educating its children, of increasing its citi­
zens’ usefulness, efficiency and ability to govern.

In a democracy citizens from every group, no matter 
what their social or economic status or their religious or 
ethnic origins, are expected to participate widely in the 
making of important public decisions. The public school, 
even more than the family, the church, business institutions, 
political and social groups and other institutions, has be­
come an effective agency for giving to all people that broad 
background of attitudes and skills required to enable them 
to function effectively as participants in a democracy. 
Thus, “ education”  comprehends the entire process of de­
veloping and training the mental, physical and moral pow­
ers and capabilities of human beings. Weyl v. Comm, of 
Int. Rev., 48 F. 2d 811, 812 (0. A. 2d 1931); Jones v. 
Better Business Bureau, 123 F. 2d 767, 769 (C. A. 10 
1941 ).J

The record in this case emphasizes the extent to which 
the state has deprived the appellants of these fundamental 
educational benefits by separating them from the rest of 
the school population.

Expert witnesses testified that compulsory racial segre­
gation in elementary and high schools inflicts considerable 
personal injury on the Negro pupils which endures as long

1 See: Brief of Committee of Law Teachers Against Segregation 
in Legal Education filed in Sweatt v. Painter, No. 44, October Term, 
1949, pp. 36-38.



16

as these students remain in the segregated school. These 
witnesses testified that compulsory racial segregation in 
the public schools of South Carolina injures the Negro 
students by: (1) impairing their ability to learn (R. 140, 
161); (2) deterring the development of their personalities 
(R. 86, 89); (3) depriving them of equal status in the school 
community (R. 89, 141, 145); (4) destroying their self- 
respect (R. 140, 148); (5) denying them full opportunity 
for democratic social development (R. 98, 99, 103); (6) 
subjecting them to the prejudices of others (R. 133) and 
stamping them with a badge of inferiority (R. 148).

Dr. Kenneth Clark, an expert in the fields of social and 
child psychology who tested the infant plaintiffs and other 
Negro school children in District No. 22, testified:

“  A. The conclusion which I was forced to reach 
was that these children in Clarendon County, like 
other human beings who are subjected to an obviously 
inferior status in the society in which they live, 
have been definitely harmed in the development of 
their personalities; that the signs of instability in 
their personalities are clear, and I think that every 
psychologist would accept and interpret these signs 
as such.

“ Q. Is that the type of injury which in your 
opinion would be enduring or lasting! A. I  think 
it is the kind of injury which would be as enduring 
or lasting as the situation endured, changing only 
in its form and in the way it manifests itself”  (R. 
89-90).

Dr. David Krech, another psychologist, testified:

“  * Legal segregation, because it is legal, 
because it is obvious to everyone, gives what we 
call in our lingo environmental support for the belief 
that Negroes are in some way different from and



17

inferior to white people, and that in turn, of course, 
supports and strengthens beliefs of racial differences, 
of racial inferiority. I would say that legal segrega­
tion is both an effect, a consequence of racial pre­
judice, and in turn a cause of continued racial pre­
judice, and insofar as racial prejudice has these 
harmful effects on the personality of the individuals, 
on his ability to earn a livelihood, even on his ability 
to receive adequate medical attention, I look at 
legal segregation as an extremely important con­
tributing factor. May I add one more point. Legal 
segregation of the educational system starts this 
process of differentiating the Negro from the white 
at a most crucial age. Children, when they are 
beginning to form their views of the world, begin­
ning to form their perceptions of people, at that very 
crucial age they are immediately put into the situa­
tion which demands of them, legally, practically, 
that they see Negroes as somehow of a different 
group, different being, than whites. For these 
reasons and many others, I base my statement.

“ Q. These injuries that you say come from legal 
segregation, does the child grow out of them? Do 
you think they will be enduring, or is it merely a 
sort of temporary thing that he can shake off? A. 
It is my opinion that except in rare cases, a child 
who has for 10 or 12 years lived in a community 
where legal segregation is practiced, furthermore, in 
a community where other beliefs and attitudes sup­
port racial discrimination, it is my belief that such 
a child will probably never recover from whatever 
harmful effect racial prejudice and discrimination 
can wreak”  (R. 133-134).

Dr. Harold McNalley, an expert in the field of Educational
Psychology, testified:



18

“  * * * And, secondly, that there is basically implied 
in the separation—the two groups in this case of 
Negro and White—that there is some difference in 
the two groups which does not make it feasible for 
them to be educated together, which I would hold 
to be untrue. Furthermore, by separating the two 
groups, there is implied a stigma on at least one 
of them. And, I think that that would probably be 
pretty generally conceded. We thereby relegate 
one group to the status of more or less second-class 
citizens. Now, it seems to me that if that is true— 
and I believe it is—that it would be impossible to 
provide equal facilities as long as one legally accepts 
them.

“ Q. I see. Now, all of the items that you talked 
about that you based your reason for reaching your 
conclusion, you consider them to be important phases 
in the educational process? A. Very much so”  (R. 
74).

Dr. Louis Kesselman, a political scientist, testified:
“ I think that I do. My particular interest in 

the field of Political Science is citizenship and the 
Political process. And, based upon studies which 
we regard as being scientifically accurate by virtue 
of use of the scientific methods, we have come to feel 
that a number of things result from segregation 
which are not desirable from the standpoint of good 
citizenship; that the segregation of white and Negro 
students in the schools prevents them from gaining 
an understanding of the needs and interests of both 
groups. Secondly, segregation breeds suspicion and 
distrust in the absence of a knowledge of the other 
group. And, thirdly, where segregation is enforced 
by law, it may even breed distrust to the point of 
conflict. Now, carrying that over into the field of



19

citizenship, when a community is faced with problems 
which every community would be faced with, it will 
need the combined efforts of all citizens to solve 
those problems. Where segregation exists as a 
pattern in education, it makes that cooperation more 
difficult. Next, in terms of voting and participating 
in the electorial process, our various studies indicate 
that those people who are low in literacy and low 
in experience with other groups are not likely to 
participate as fully as those who have * * * ”  (R. 
103-104).

Mrs. Helen Trager, a child psychologist who had conducted 
tests of the effects of racial segregation and racial tensions 
among children, testified:

“ Q. Mrs. Trager, in your opinion, could these 
injuries under any circumstances ever be corrected 
in a segregated school? A. I think not, for the 
same reasons that Dr. Krech gave. Segregation is a 
symbol of, a perpetuator of, prejudice. It also 
stigmatizes children who are forced to go there. 
The forced separation has an effect on personality 
and one’s evaluation of one’s self, which is inter­
related to one’s evaluation of one’s group”  (R. 148).

Dr. Robert Redfield, an expert in the field of anthropology, 
testified as to the unreasonableness of racial classification 
in education:

‘ ‘ Q. As a result of your studies that you have 
made, the training that you have had in your special­
ized field over some 20 years, given a similar learn­
ing situation, what, if any difference, is there between 
the accomplishment of a white and a Negro student, 
given a similar learning situation ? A. I understand, 
if I may say so, a similar learning situation to include 
a similar degree of preparation?



20

“ Q. Yes. A. Then I would say that my con­
clusion is that the one does as well as the other on 
the average”  (R. 161).

The testimony on behalf of the appellants was by ex­
pert witnesses of unimpeachable qualifications. The record 
in this case presented for the-fi^t-time in any case com­
petent testimony of the permanent injury to Negro ele­
mentary and high school children forced to attend segre­
gated schools. Testimony was introduced showing the 
irreparable damage done to the appellants in this case 
solely by reason of racial segregation. The record also 
shows the unreasonableness of this racial classification. 
This evidence stands uncontradicted in the record.

On the basis of like testimony in a similar case another 
■’ ! District Court made a finding of fact that segregatmrf in 
j j public schooKYetardrerTthe mental and educational develop­

ment of the colored children and was generally interpreted 
as denoting the inferiority of the Negro group. Brown v. 
Board of Education, October Term, 1952, No. 8.

The application of the rationale of the Sweatt and 
McLaurin cases to the record in the instant case requires 
the conclusion: “ that the conditions under which this ap­
pellant is required to receive his education deprive him of 
his personal and present right to the equal protection of 
the laws. See: Sweatt v. Painter, 339 U. S. 629, ante. We 
hold that under these circumstances the Fourteenth Amend­
ment precludes differences in treatment by the state based 
upon race.”  (McLaurin v. Oklahoma State Regents, 339 
U. S. 637, 642).



21

II

The compulsory segregation laws of South Caro­
lina infect its public schools with that racism which 
this Court has repeatedly declared unconstitutional in 
other areas of governmental action.

The issue of the validity of the laws of South Carolina 
requiring racial segregation in public schools was clearly 
joined in the pleadings in this case and has been preserved. 
The District Court has twice decreed that these laws are 
valid and has twice refused to enjoin their enforcement.

These laws require that all Negro pupils attend schools 
segregated for their use and prohibit them from attending 
other schools in which pupils of all other racial groups are 
educated as a matter of course. The clear vice is that the 
segregated class is defined wholly in terms of race or color— 
‘ ‘ simply that and nothing more. ’ ’ Buchanan v. Warley, 245 
U. S. 60, 73.

At the trial of the instant case the State made no effort 
to justify these provisions of its laws except by statements 
of one witness to the effect that it would be “ unwise”  to 
adopt a policy of non-segregation (E. 113). The basis for 
this belief was that there was a feeling of “ separteness 
between the races in South Carolina.”  The witness also 
testified that there would probably be a “ violent emotional 
reaction”  to non-segregation (B. 113-114). Neither of 
these theories justify the deprivation of constitutional 
rights. Buchanan v. Warley, supra; McLaurin v. Oklahoma 
State Regents, supra; City of Birmingham v. Monk, 185 F. 
2d 859 (C. A. 5th 1951), cert. den. 341 U. S. 940. The Dis­
trict Court, however, concluded that segregation of the 
races in 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 inter­
fere”  (E. 179).



22

The laws here involved, like all others which curtail 
a civil right on a racial basis, are “ immediately suspect”  
and will be subjected to “ the most rigid scrutiny.”  Kore- 
matsu v. United States, 323 TJ. S. 214, 216.2

In South Carolina the school which a child is permitted 
to attend depends solely upon his race or color. This Court 
has declared that insofar as the federal government is 
concerned “ distinctions between citizens solely because of 
their ancestry are by their very nature odious to a free 
people whose institutions are founded upon the doctrine 
of equality.”  Hirabayashi v. United States, 320 U. S. 81, 
100. The Court reached this conclusion by adopting the 
reasoning of its prior decisions that similar state imposed 
classifications and discrimination violated the equal pro­
tection clause of the Fourteenth Amendment. See also: 
Korematsu v. United States, supra. This Court, however, 
recognized that insofar as the federal government is con­
cerned its constitutionally conferred right to wage war 
could temporarily override this civil right. Cf. Ex parte 
Endo, 323 IT. S. 283. No state can show either constitu­
tional authorization or any such overriding necessity which 
would warrant sustaining state action founded upon these 
constitutionally irrelevant and arbitrary considerations. 
See: Oyama x. California, 332 U. S. 633; Takahashi v. Fish 
and Game Commission, 334 IT. S. 410 ; Shelley v. Kraemer, 
334 IT. S. 1.

During the past quarter century this Court has con­
sistently held that the Fourteenth Amendment invalidated 
specific state imposed racial distinctions and restrictions 
in widely separated areas of human endeavor: ownership 
and occupancy or real property, Shelley v. Kraemer, supra;

2 See also: Ex parte Endo, 323 U. S. 283, 299; United States v. 
Congress of Industrial Organizations, 335 U. S. 106, 140, concur­
ring opinion; Skinner v. Oklahoma, 316 U. S. 535, 544, concurring 
opinion; Hirabayashi v. United States, 320 U. S. 81, 100; Idem, at 
110, concuring opinion; Steele v. Louisville & N. R. Co., 323 U. S. 
192, 209.



23

Oyama v. California, supra; pursuit of gainful employment 
or occupation, Takahashi v. Fish and Game Commission, 
supra; selection of juries, Shepherd v. Florida, 341 U. S. 
50; Patton v. Mississippi, 332 U. S. 463; Pierre v. Louisiana, 
306 U. S. 354; Hale v. Kentucky, 303 U. S. 613; and gradu­
ate and professional education, McLaurin v. Oklahoma State 
Regents, 339 U. S. 637; Sweatt v. Painter, 339 U. S. 629; 
Sipuel v. Board of Regents, 332 U. S. 631; Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Board of Supervisors v. 
Wilson, 340 U. S. 909.

The Court has further held that in the area of inter­
state travel the state’s power is further limited by the com­
merce clause which similarly proscribes racial distinctions 
and restrictions. Morgan v. Virginia, 328 U. S. 373.

A  state legislative classification violates the equal pro­
tection clause of the Fourteenth Amendment either if it 
is based upon nonexistent differences or if the differences 
are not reasonably related to a proper legislative objective.3 
Classifications based on race or color can never satisfy 
either requirement and consequently are the epitome of 
arbitrariness in legislation. In Skinner v. Oklahoma, 316 
U. S. 535, 541, this Court held unconstitutional an Okla­
homa “ habitual criminal”  statute providing for steriliza­
tion of persons convicted two or more times of felonies 
involving moral turpitude but exempting persons convicted 
of embezzlement, declaring that the State of Oklahoma 
“ has made as invidious a discrimination as if it had selected 
a particular race or nationality for oppressive treatment.”  
Similarly, in Edwards v. California, 314 U. S. 160, 184, 
where this Court invalidated a California statute making

3 Skinner v. Oklahoma, 316 U. S. 535; Hartford Steam Boiler 
Inspection & Insurance Co. v. Harrison, 301 U. S. 459; Mayflower 
Farms v. Ten Eyck, 297 U. S. 266; Concordia. Fire Insurance Co. v. 
Illinois, 292 U. S. 535; Nixon v. Herndon, 273 U. S. 536; Air-Way 
Electric Appliance Co. v. Day, 266 U. S. 71; Truax v. Raich, 239 
U. S. 33; Southern Railway Co. v. Greene, 216 U. S. 400.



2 4

it a criminal offense for any person to bring or assist in 
bringing an indigent nonresident into the state, Mr. Justice 
Jackson, concurring, pointed out that

“ The mere state of being without funds is a 
neutral fact—constitutionally an irrelevance, like 
race, creed or color.”

Likewise, in Nixon v. Herndon, 273 U. S. 536, 541, where a 
Texas statute confining participation in primary elections 
to white persons was held to violate the equal protection 
clause the Court stated:

“ States may do a great deal of classifying that 
it is difficult to believe rational, but there are limits, 
and it is too clear for extended argument that color 
cannot be made the basis of a statutory classifica­
tion affecting the right set up in this case.”

Segregation of Negroes as practiced here is universally 
understood as imposing on them a badge of inferiority.4 
It “ brands the Negro with the mark of inferiority and 
asserts that he is not fit to associate with white people.”  
It is of a piece with the established rule of the law of South 
Carolina that it is libelous per se to call a white person 
a Negro. Flood v. Neivs and Courier Co., 71 S. C. 112, 50 
S. E. 637 (1905); Flood v. Evening Post Publishing Co., 
71 S. C. 122, 50 S. E. 641 (1905); see also: Stokes v. Gt. A. 
and P. Tea Co., 202 S. C. 24, 23 S. E. 2d 823 (1943).

South Carolina has made no showing of any educa­
tional objective that racial segregation subserves. Nor 
could it. Efforts to conjure up theories of intellectual dif-

4 Myrdal, I An American Dilemma 615, 640 (1944); Johnson 
Patterns of Negro Segregation 3 (1943) ; Dollard, Caste and Class 
in a Southern Town 349-351 (1937); Note, 56 Yale L. J. 1059, 
1060 (1947); Note, 49 Columbia L. Rev. 629, 634 (1949); Note, 39 
Columbia L. Rev. 986, 1003 (1939).



25

ferences between races are futile. As one authority has 
put i t : 5

“  * * * there is not one shred of scientific evi­
dence for the belief that some races are biologically 
superior to others, even though large numbers of 
efforts have been made to find such evidence.”

The record in this case, contains the conclusion of an 
expert, based on exhaustive investigation, that:

“ Differences in intellectual capacity or inability 
to learn have not been shown to exist as between 
Negroes and whites, and further, that the results 
make it very probable that if such differences are 
later shown to exist, they will not prove to be sig­
nificant for any educational policy or practice”  (R. 
202) .

This conclusion accords with all the scientific investiga­
tions on the subject. Klineberg, Race Differences 343 
(1935); Montague, Man’s Most Dangerous Myth— The Fal­
lacy of Race 188' (1945); American Teachers Association, 
The Black and White of Rejections for Military Service 29 
(1944); Klineberg, Negro Intelligence and Selective Migra­
tion (1935); Peterson and Lanier, Studies in the Com­
parative Abilities of Whites and Negroes, Mental Measure­
ment Monograph (1929); Clark, Negro Children, Educa­
tional Research Bulletin, Los Angeles (1923).

The record in the instant case clearly establishes that 
there is absolutely no relation between race and edu­
cability, and that racial distinctions in public education in­
evitably injure those against whom it is directed. Appel­
lants have shown that such distinctions are not relevant to 
any educational objective; and they have authoritatively

5 Rose, America Divided: Minority Group Relations in the
United States 170 (1948).



26

demonstrated that classification wholly on the basis of 
race in public schools cannot be condoned in the light of 
this Court’s decisions in cases involving racial and other 
odious classifications.

Therefore, the compelling conclusion is that the provi­
sions of the Constitution and Code of South Carolina re­
quiring racial segregation in education are no more capable 
of surviving constitutional onslaught than the invidious 
classification legislation previously voided by this Court 
as repugnant to the constitutional guarantee of the equal 
protection of the laws.

Ill

Neither the decision in Plessy v. Ferguson nor the 
decision in Gong Lum v. Rice, are applicable to this 
case.

At the conclusion of the first hearing a majority of the 
District Court rejected the principles recognized in the 
Sweatt and McLaurin decisions and accepted as controlling 
the statements in the decisions in Plessy v. Ferguson, 163 
U. S. 537 and Gong Lum v. Rice, 275 U. S. 78. The dis­
senting Judge considered the decisions in the Sweatt and 
McLaurin cases decisive of the issue raised.

In Plessy v. Ferguson, supra, the majority of the 
Supreme Court held that the application to an intrastate 
passenger of a Louisiana statute requiring the segrega­
tion of white and Negro passengers did not violate the 
Fourteenth Amendment, The case was decided upon plead­
ings which assumed the possibility of' attainment of a 
theoretical equality within the framework of racial segrega­
tion, rather than on a full hearing and evidence which 
would have established the inevitability of discrimination 
under a system of segregation.



27

Plessy v. Ferguson is not applicable here. Whatever 
doubts may once have existed in this respect were removed 
by this Court in Sweatt v. Painter, supra, at page 635, 
636.

Gong Lum v. Rice is irrelevant to the issues in this 
case. There, a child of Chinese parentage was denied 
admission to a school maintained exclusively for white 
children and was ordered to attend a school for Negro 
children. The power of the state to make racial distinc­
tions in its school system was not in issue. Petitioner 
contended that she had a constitutional right to go to 
school with white children, and that in being compelled 
to attend school with Negroes, the state had deprived 
her of the equal protection of the laws.

Further, there was no showing that her educational 
opportunities had been diminished as a result of the state’s 
compulsion, and it was assumed by the Court that equality 
in fact existed. There the petitioner was not inveighing 
against the system, but rather that its application resulted 
in her classification as a Negro rather than as a white 
person, and indeed by so much conceded the propriety of 
the system itself. Were this not true, this Court would 
not have found basis for holding that the issue raised was 
one “ which has been many times decided to be within the 
constitutional power of the state”  and, therefore, did not 
“ call for very full argument and consideration.”

In short, she raised no issue with respect to the state’s 
power to enforce racial classifications, as do appellants 
here. Bather, her objection went only to her treatment 
under the classification. This case, therefore, cannot be 
pointed to as a controlling precedent covering the instant 
case in which the constitutionality of the system itself is 
the basis for attack and in which it is shown the inequality 
in fact exists.



28

In any event, the assumptions in the Gong Lum case 
have since been rejected by this Court. In the Gong Lum 
case, without “ full argument and consideration,”  the Court 
assumed the state had power to make racial distinctions in 
its public schools without violating the equal protection 
clause of the Fourteenth Amendment and assumed the 
state and lower federal court cases cited in support of 
this assumed state power had been correctly decided. 
Language in Plessy v. Ferguson was cited in support of 
these assumptions. These assumptions upon full argument 
and consideration were rejected in the McLaurw and 
Sweatt cases in relation to racial distinctions in state 
graduate and professional education. And, according to 
those cases, Plessy v. Ferguson, is not controlling for the 
purpose of determining the state’s power to enforce racial 
segregation in public schools.

Thus, the very basis of the decision in the Gong Lum 
case has been destroyed. We submit, therefore, that this 
Court has considered the basic issue involved here only 
in those cases dealing with racial distinctions in education 
at the graduate and professional levels. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 
supra; Fisher v. Hurst, 333 U. S. 147; Sweatt v. Painter, 
supra; McLaurin v. Oklahoma State Regents, supra.

IV

The equalization decree does not grant effective 
relief and cannot be effectively enforced without in­
volving the Court in supervising the daily operation of 
the public schools.

The rights here asserted are personal and present.
At the beginning of the first hearing (R. 30-35), at the 

time of the first judgment and at the time of the judgment 
here appealed from, the appellants and appellees were in



29

agreement that the equal protection of the laws of South 
Carolina was being denied to the appellants herein—and 
the District Court twice made this finding (R. 210, 306-307).

The appellants were entitled to effective and immediate 
relief as of the time of the first judgment on June 23, 
1951. Sipuel v. Board of Regents, supra; Sweatt v. Painter, 
supra; McLaurin v. Oklahoma State Regents, supra.6 At 
the second hearing on March 3, 1952, appellees admitted 
that, although progress was being made, the physical 
facilities were still unequal. The District Court ruled that 
the question of the validity of the segregation laws was 
foreclosed by their prior decision (R. 279, 281). Appellants 
then urged that even under this ruling, they were entitled 
to immediate relief by an injunction against the continua­
tion of the policy of excluding them from an opportunity 
to share all of the public school facilities—good and b a d -  
on an equal basis without regard to race and color. This 
the District Court refused to do even after a showing that 
the June, 1951, decree had failed to produce even physical 
equality after eight months.

Rather, the District Court again ordered an injunction 
requiring the appellees to make available to appellants and 
other Negro pupils of the district “ educational facilities, 
equipment, curricula and opportunities equal to those 
afforded white pupils”  (R. 307). Appellees’ sole defense 
has been complete reliance on the segregation laws of South 
Carolina. As long as the District Court insists on declar­
ing these laws valid and constitutional, appellees will con­
tinue to enforce them. The record in this case shows that 
in the past their action has discriminated against appellants 
and all other Negroes. Whatever they do in the future will 
be under the continuing policy of rigid racial segregation.

6 See also: Missouri ex rel. Gaines v. Canada, 305 U. S. 337;
Belton, et d. v. Gebhart, et a l.,------  D e l.------ , decided August 28,
1952.



30

Education is not an inert subject. Teachers differ in 
ability, personality and effectiveness, and their teachings 
correspondingly vary in value. Schools differ in size, loca­
tion and environment. These are among the many vari­
ables in any educational system.7 Public education, as 
education generally, is an ever-growing and progressing 
field. Facilities and methods improve as experience dem­
onstrates the need and the way. Buildings and facilities 
are constantly increased to accommodate the expanding 
school population. It seems clear that no two schools can 
retain a constant and fixed relationship in the flux of edu­
cational progress. Certainly this relationship cannot be 
fixed or maintained by judicial decree.

Resolution of the basic issue in this case—the right to 
equal educational benefits—by an equalization decree will 
engage the parties and the court interminably. The task 
of attempting equality under a segregated school system 
is clearly one for which the machinery of the court is 
unsuited. The decisions of this Court establish the impro­
priety of a decree which would require the continuous 
supervision of numerous details. United States v. Para­
mount Pictures, Inc., 334 U. S. 131; Armour & Co. v. Dallas, 
255 U. S. 280; Javierre v. Central Altagracia, 217 U. S. 
502; Beasley v. Texas & Pacific By. Co., 191 TJ. S. 492; 
Texas & Pacific Ry. Co. v. City of Marshall, 136 U. S. 393; 
Rutland Marble Co. v. Ripley, 10 Wall. 339.

If under any circumstances the decree is to be effective, 
even as to physical facilities, courses and teachers, children, 
parents and school authorities alike must be constant liti­
gants.

7 Judge Edgerton, dissenting in Carr v. Corning, 182 F. 2d 14, 
31 (C. A. D. C. 1950), pointed out that:

“ * * * two schools are seldom if ever fully equal to 
each other in location, environment, space, age, equipment, 
size of classes and faculty.”



31

At some point appellants are entitled to conclude their 
litigation and enjoy constitutional equality in the public 
schools. The District Court’s decree can accomplish neither 
objective. It should be annulled, and a decree entered 
restraining the use of race as the factor determinative of, 
the school which the child is to attend.

Conclusion

In light of the foregoing, we respectfully submit that 
appellants have been denied their rights to equal educa­
tional opportunities within the meaning of the Fourteenth 
Amendment and that the judgment of the court below 
should be reversed.

H arold R. B ottlware,
R obert L. Carter,
T hurgood Marshall, 
Spottswood W. R obinson, III, 

Counsel for Appellants.

W illiam T. Coleman, J r.,
George E. C. H ayes,
George M. J ohnson,
W illiam R. Ming, J r .,
Constance Raker M otley,
J ames M. Nabrit, J r .,
F rank D. R eeves,
L eonard W. Schroeter,
J ack B. W einstein,

of Counsel.



Supreme Printing Co., Inc., 41 Murray Street, N. Y  7, B A  7-0349 
49