Briggs v. Elliot Reply Brief for Appellants on Reargument

    IN THE

CEmtrt at %  Wnxtvb
October Term, 1953

No. 2
HARRY BRIGGS, JR., et al„  

vs.
R. W. ELLIOTT, et al.,

Appellants,

Appellees.

No. 4
DOROTHY E. DAVIS, ex al., 

vs.
Appellants,

COUNTY SCHOOL BOARD OF PRINCE EDWARDS COUNTY,
Appellees.

A ppeal From the U nited States D istrict Court for the Eastern D istrict 
of South Carolina and the Eastern D istrict of V irginia

REPLY BRIEF FOR APPELLANTS
ON REARGUMENT

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING,

CHARLES L. BLACK, JR., SPOT.TSWOOD W. ROBINSON, III,
ELWOOD H. CHISOLM, CHARLES S. SCOTT,
WILLIAM T. COLEMAN, JR., Attorneys for Appellants.
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR.,
CONSTANCE BAKER MOTLEY,
JAMES M. NABRIT, JR.,
DAVID E. PINSKY,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.



TABLE OF CONTENTS

I. Appellees’ mistaken approach to the history of 
the adoption of the Fourteenth Amendment . . . .  2

II. Appellees’ mistaken concept of the decisions of 
this C ou rt................................................................. 6

III. Appellees’ classification argument......................  7
IV. Appellees have an erroneous conception of state 

understanding and contemplation concerning the 
effect of the 14th Amendment with respect to seg­
regated schools........................................................  12

V. Local customs, mores and prejudices cannot pre­
vail against the Constitution of the United States 18

Conclusion ........................................................................  24
Appendix A .................................................    25
Appendix B— (Charts)

Table o f Cases

Adkins v. Sanford, 120 F. 2d 471 (CA 5th 1941).......... 4
Betts v. Brady, 316 U. S. 455 ......................................... 4
Blair v. Cantey, 29 S. C. L, (2 Spears) 3 4 .....................  14
Bolling v. Sharpe, et al., No. 8 ........................................  25
Bolin v. Nebraska, 176 U. S. 8 3 ......................................  15
Bute v. Illinois, 333 U. S. 640 .......................................... 4
Commonwealth v. Williamson, 30 Leg. Int. 406 (1873).. 16
Coyle v. Smith, 221 U. S. 569 ..........................................  15
District Township v. City of Dubuque, 7 Iowa 262

(1858) ............................................................................  13
Doswell v. Buchanan, 3 Leigh (Va.) 365 .......................  14
Elkinson v. Delisseline, 8 Fed. Cas. 493 (C. C. S. C.

(1823)) ..........................................................................  19
Gebhart v. Belton, No. 1 0 .................................................  20
Gilbert v. Minnesota, 254 U. S. 325 ............................... 5
Gitlow v. New York, 268 U. S. 652 ..................................  4, 5

PAGE



11

Hurtado v. California, 110 U. S. 5 1 6 ............................. 4
Johnson v. Zerbst, 304 U. S. 458 ....................................  4
Legal Tender Cases, 12 "Wall. 457 ..................................  3
McKissick v. Carmichael, 187 F. 2d 949 (CA 4th. 1951),

cert, denied, 341 U. S. 9 5 1 ..........................................  11
McLaurin v. Oklahoma State Regents, 339 U. S.

637 .............................................................. 6,7,11,19,20,23
Marlin v. Lewallen, 276 U. S. 5 8 ......................................  14
M ’Culloch v. Maryland, 4 Wheat. 3 1 6 ........................... 4
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 .......... 7
Ohio ex rel. Clarke v. Deckeback, 274 U. S. 392 ...........  9
Patsone v. Pennsylvania, 232 U. S. 1 3 8 .......................  9
Patterson v. Colorado, 305 U. S. 454 ..............................  4
Permoli v. New Orleans, 3 How. 589 ............................. 15
Powell v. Alabama, 287 U. S. 4 5 ....................................  4
Prudential Insurance Co. v. Cheek, 259 U. S. 530 ........ 5
Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 . . .  7, 8
Shelley v. Kraemer, 334 U. S. 1 .............................. 2,11, 23
Sipuel v. Board of Regents, 332 U. S. 631 ....................  7
Strauder v. West Virginia, 100 U. S. 303 ....................  2
Stromberg v. California, 283 U. S. 359 ......................... 5
Sweatt v. Painter, 339 U. S. 629 .........................3, 6, 7,10, 20
Takahashi v. Fish & Game Commission, 334 U. S. 410 9
Tanner v. Little, 2401 U. S. 369 ......................................  9
Walden v. Gratz, 1 Wheat. 292 ........................................  14
Tick Wo v. Hopkins, 118 U. S. 356 ................................  7, 8

State Constitutions and Statutes

Alabama Const., Art. XI (1867) ....................................  13
Alabama Const., Art. X I §6 (1867)................................  13
Florida Laws 1866, c. 1475 .............................................. 14
Florida Laws 1866, c. 1486 ..............................   14
Iowa Const., Art. IX (1857) ............................................ 13
Iowa Const., Art. IX  §12 (1857)......................................  13

PAGE



North Carolina Const., Art. IX  §§1-17 (1868).............  16
South Carolina Laws No. 125 (1869) ............................. 17
South Carolina Acts & Res. 1868-69, pp. 203-204 .......... 17

Proceedings o f Constitutional Conventions

5 Elliot’s Debates, 435 .....................................................  4
5 Elliot’s Debates, 543-4 .................................................. 4
Proceedings of the South Carolina Constitutional Con­

vention, etc. 100-101, 264-272, 654-656, 685-708, 899- 
901 .............................................................................  17

Congressional Debates and Reports

Congressional Globe, 37th Cong. 2d Sess. 1544, 2037,
2157 (1862) .................................................................... 25

Congressional Globe,' 38th Cong. 1st Sess. 2814, 3126
(1864) .............................................................................  25

Cong. Globe, 39th Cong., 1st Sess. (1866):
182, 183 ..............................    31
App. 217 ....................................................................  14
474 ...........................................................................   26
505 ..................................    26
541 ..............................................................................  26
570, 571 .......................................................................  27
598 ................................................................................ 27
599 ...............  29
602 .............................................................................. 27
603 ..............................................................................  29
605 ...............................................................................  30
1094 et seq.....................................    33
1095 ............................................................................  35
1296 ............................................................................  30

I l l
PAGE



IV

Cong. Globe, 39th Cong., 1st Sess. (1866):
1415 ........................................................................  32
2459 ...................................................................... 36,37,38
2502 ............................................................................  38
2538 ............................................................................  38
2542 ............................................................................  39,
2764 ............................................................................  40
2765 ...................   37
2766 ...........................................................................36,37

Cong. Globe, 40th Cong., 2d Sess. (1868):
2461 ..........................   33
2462 ............................................................................  33
2477 ............................................................................  33

Cong. Globe, 41st Cong. 3rd Sess. 1055 ............. ..........  15
2 Cong. Rec., App. 478 (1874) ......................................  15
Kendrick, Journal of the Joint Committee of Fifteen 

on Reconstruction 85-107 ............................................  36

PAGE

Other Authorities

Brief for the Committee of Law Teachers, Sweatt v.
Painter, No. 44, Oct. Term, 1949, pp. 5-18 .._.............  3

Courts and Racial Integration in Education, The, 21
J. Negro Edue. 3 (1952) .............................................. 20

Fifth Annual Report State Supt. Educ.—1873, p. 15 .. 17
21 J. Negro Educ. 321 (1952) ......................................  20
Johnson, Mr. Justice Wm. and the Constitution, 57

Harv. L. Rev. 328, 338 .................................................. 19
Noble, A  History of the Public Schools in N. C. 312-313

(1930) ............................................................................  16
Simpkins & Woody, South Carolina During Reconstruc­

tion 439-440 (1932) ......................................................  17
Special Groups, Special Monograph No. 10, Selective

Service System (1953) ...................................... 5, 21, 22, 23
Thayer, “ Legal Tender',”  1 Harv. L. R. 7 3 ...................  4
Wertham, Psychiatric Observations on Abolition of 

School Segregation, 26 J. Ed. Soc. 336 (1953).......... 20



IN  THE

CUimrt uf United UtateB
October Term, 1953

----------------------0----------------------
No, 2

H arry B riggs, J r., et al.,
Appellants, 

vs.

R. W. E lliott, et al,,
Appellees.

No. 4
D orothy E . D avis, et al.,

vs.
Appellants,

County S chool B oard op P rince E dward 
V irginia, et al.,

County,

Appellees.

A ppeals F rom the  U nited S tates D istrict C ourts por 
the. E astern D istrict of S outh Carolina and 

the  E astern D istrict of V irginia.

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

REPLY BRIEF FOR APPELLANTS 
ON REARGUMENT

This Reply Brief is a joint reply to the Briefs for Appel­
lees on Reargument in No. 2 and No. 4.

In dealing wtih the Congressional debates on the Four­
teenth Amendment appellees have made several errors in 
text and quotations. In order to conserve the time of the



2

Court we have corrected the more important of these errors 
in Appendix A  to this brief. There is even more dispute 
between appellants and appellees in regard to the actions 
of the several states. In order to facilitate the Court’s 
resolution of dispute of the states on the Fourteenth 
Amendment we have prepared charts which are set forth in 
Appendix B to this brief.

I

Appellees’ mistaken approach to the history of the 
adoption of the Fourteenth Amendment.

We doubt that the decision in this case is to be con­
trolled by any isolated statement in either the Congres­
sional debates or statements of any individual legislator 
in the states. On the contrary, we believe that the deter­
mining factor must be the overall purpose and intent of 
the framers of the Fourteenth Amendment1 plus the gen­
eral understanding of this intent by the other members of 
Congress. On this phase of the case, appellees have uni­
formly disregarded the undisputed intent of the framers 
of the Fourteenth Amendment to remove by constitutional 
amendment all governmentally imposed racial classifica­
tions and caste legislation and to do this in the most general 
and comprehensive language as is customary in the wording 
of constitutional provisions.2 Appellees have consistently 
ignored the admitted intention of the framers of the 
Fourteenth Amendment and the other Radical Republicans 
in the 39th Congress that the Fourteenth Amendment would 
destroy the validity of the Black Codes then in existence, 
those being adopted during the same period, and would 
deprive the states of power to adopt any similar racial 
classification statutes in the future.

1 See Shelley v. Kraemer, 334 U. S. 1, 23.
2 Strauder v. West Virginia, 100 U. S. 303, 310.



3

On this point the United States in its Supplemental 
Brief on Reargument (p. 115) concluded:

“ In sum, while the legislative history does not 
conclusively establish that the Congress which pro­
posed the Fourteenth Amendment specifically under­
stood that it would abolish racial segregation in the 
public schools, there is ample evidence that it did 
understand that the Amendment established the 
broad constitutional principle of full and complete 
equality of all persons under the law, and that it 
forbade all legal distinctions based on race or color. 
Concerned as they were with securing to the Negro 
freedmen these fundamental rights of liberty and 
equality, the members of Congres-s did not pause to 
enumerate in detail all the specific applications of 
the basic principle which the Amendment incorpo­
rated into the Constitution. There is some evidence 
that this broad principle was understood to apply 
to racial discriminations in education, and that it 
might have the additional effect of invalidating state 
laws providing for racial segregation in the public 
schools.”  3

The historic role of this Court has always been to give 
specific content to constitutional guarantees of due process, 
equal protection, the Bill of Rights and affirmative grants 
of power in accordance with the fundamental and under­
lying intent of the framers. That the framers may have 
had or failed to have a specific problem in mind is after all 
beside the point. What must be determined is whether the 
particular problem is embraced within the broad scope of 
the constitutional provision. And the Court resolves this 
question.

Thus, this Court sustained the Legal Tender Acts, Legal 
Tender Cases, 12 Wall. 457, in the face of the fact that the

3 See also: Brief for the Committee of Law Teachers Against 
Segregation in Legal Education filed in the case of Sweatt v. Painter, 
No. 44, October Term, 1949, pp. 5-18.



4

Constitutional Convention, in voting to strike out a provi­
sion authorizing Congress to “ emit bills of credit,”  clearly 
understood that the Federal government would thereby be 
deprived of this power. 5 Elliot’s Debates, 435;4 Thayer, 
“ Legal Tender,”  1 Harv. L. B. 73. Likewise, in upholding 
the establishment of the Bank of the United States in M ’Cul- 
loch v. Maryland, 4 Wheat. 316, Chief Justice Marshall was 
not deterred by the fact that the Constitutional Convention 
had voted down a proposal to authorize the chartering of 
corporations. 5 Elliott’s Debates, 543-4.

It should also be noted that the Sixth Amendment was 
adopted in the light of the English common law rule that one 
accused of a felony other than treason was denied the 
assistance of counsel. See Powell v. Alabama, 287 U. S. 45, 
60-64; Betts v. Brady, 316 U. S. 455; Adkins v. Sanford, 
120 F. 2d 471 (CA 5th 1941). From the date of the adoption 
of the Sixth Amendment until the decision of this Court in 
Johnson v. Zerbst, 304 U. S. 458, the right conferred was 
generally understood as meaning only that in the federal 
courts the defendant in a criminal case was entitled to be 
represented by counsel retained by him. See Bute v. Blinois, 
333 U. S. 6401, 661, footnote 17. In Johnson v. Zerbst this 
Court departed from this concept and construed the Amend­
ment as entitling a defendant to court-appointed counsel if 
unable to retain counsel of his own.

Moreover, from the time of the adoption of the Four­
teenth Amendment until Gitlow v. New York, 268 U. S. 652, 
666, the Fourteenth Amendment was not considered as a 
prohibition against state invasion of freedom of speech. 
The inclusion of this specific protection in the Fourteenth 
Amendment was impliedly rejected in Hurtado v. California, 
110 U. S. 516, 534, on the ground that none of the constitu­
tional provisions was superfluous. In Patterson v. Colorado,

4 See particularly the speeches of Butler, Ellsworth, Reed and 
Mason.



5

205 U. S. 454, the question was left open. In Gilbert v. 
Minnesota, 254 U. S. 325, the Court refused to decide the 
question, and in Prudential Insurance Co. v. Cheek, 259 
U. S. 530, 543, it was expressly stated that the free speech 
guaranty was not a part of the Fourteenth Amendment. 
In the Gitlow case, the Court assumed the Fourteenth 
Amendment protected this right, and in Stromberg v. Cali­
fornia, 283 U. S. 359, a state statute restricting* the exercise 
of free speech was struck down for the first time as viola­
tive of the Fourteenth Amendment.

Whatever may be one’s views as to the propriety of this 
judicial function, it is a fact of our constitutional system, 
and explains why for over 150 years, in spite of revolution­
ary social, economic and political changes, only eleven con­
stitutional amendments have been necessary, aside from 
the first ten amendments which were almost contemporane­
ous to the adoption of the Constitution itself.

The significance of the legislative history of the Four­
teenth Amendment is that there can be no doubt that the 
framers were seeking to secure and to protect the Negro 
as a full and equal citizen subject only to the same legal 
disabilities and penalties as the white man. The Court 
decisions in aid of this fundamental purpose, we submit, 
compel the conclusion that school segregation, pursuant 
to state law, is at war with the Amendment’s intent. 
It is too late to say this is a question of local rather 
than national interest. ‘ ‘ In every phase of living the United 
States must demonstrate that the American way of life 
exemplifies true democracy by eliminating majority-minor­
ity division and distinctions, thus having the same citizen­
ship privileges and obligations for all.” 6 5

5 Special Groups, Special Monograph #10, Selective Service 
System (page 192), (1953).



6

Appellees’ mistaken concept of the decisions o f this 
Court.

In arguing that it is not within the judicial power of 
this Court to construe the Fourteenth Amendment as abol­
ishing public school segregation, appellees in No. 2 (Br. 
56-80), while recognizing that “ the function of the Court 
is to interpret the language under scrutiny in accordance 
with the understanding* of the framers,”  follow this with 
the assertion that “ the Fourteenth Amendment should be 
interpreted so as not to include those subjects, and specifi­
cally the issue of segregation in public schools, which the 
framers clearly did not intend the language of the Amend­
ment to embrace.”  (See also Appellees’ Brief in No. 4, 
pp. 42-46.) Such an argument is no more valid as respects 
elementary and high school segregation than it was for 
graduate school segregation.

Appellees in No. 2 apparently recognize this dilemma 
and seek to escape the obvious by combining Sweatt v. 
Painter, 339 U. S. 629 and McLaurin v. Oklahoma State 
Regents, 339 U. S. 637 and asserting that neither case dis­
turbed the separate but equal doctrine “ for in each case 
the Court expressly found that the facilities offered to the 
Negro student was unequal”  (Br. p. 65). Similar conten­
tion is made by appellees in No. 4 (Br. 58-62). In the 
McLaurin case racial segregation in and of itself and with­
out more was found a denial of equal protection.6

6 In the McLaurin case the single issue involved, i.e., the validity 
of state-imposed racial segregation in graduate education; the under­
lying rationale of the decision, i.e., state-imposed segregation destroys 
equality of educational benefits; and the unmistakable language of 
the opinion is more pertinent to the issue in these cases than quota­
tions of statements of general principles of constitutional construc­
tion in habeas corpus and tax cases.

II



7

In an effort to distinguish the McLaurin case, appellees 
in No. 2 rely on statements in the majority opinion of the 
Court below to the effect that education at the common 
■school level is compulsory and that the state must there­
fore take account of the wishes of the parent (Br. 67-68). 
Compulsory public school education, rather than being a 
distinguishing factor validating segregation, in fact high­
lights the unconstitutionality of the laws in question. Here 
the state requires the Negro parent solely because of his 
race to subject his children to all of the known harmful 
incidents of racial segregation under threat of imprison­
ment.

Appellees in No. 4 seem to rely upon a statement by 
Senator Trumbull that the right to go to public schools was 
not considered a civil right at that time (Br. 29, 65, 126). 
But the Gaines, Sipuel, McLaurin and Sweatt cases have 
rendered the significance of this statement meaningless 
with respect to public education as it exists today.

I I I

Appellees’ Classification Argument

Appellees in No. 2 argue that the laws here involved 
are not unconstitutional classifications within the rules 
established by this Court. ' ‘ Fundamental is the proposi­
tion that the legislature may classify the subjects of legis­
lation and treat different classes differently provided there 
is a real and substantial, as distinguished from a fanciful 
or arbitrary, basis for the classification and difference in 
treatment. Yick Wo v. Hopkins, 118 U. S. 356 (1886); 
Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 (1928) ”  
(Br. pp. 70-71).

Both of the cases cited by appellees in fact destroy any 
basis which they might have had for urging that statutes



8

of the type here involved are reasonable classifications 
within the meaning of the Fourteenth Amendment.

“ And while this consent of the supervisors is 
withheld from them and from two hundred others 
who have also petitioned, all of whom happened to 
be Chinese subjects, eighty others, not Chinese sub­
jects, are permitted to carry on the same business 
under similar conditions. The fact of this discrimi­
nation is admitted. No reason for it is shown, and 
the conclusion cannot be resisted, that no reason for 
it exists except hostility to the race and nationality 
to which the petitioners belong, and which in the 
eye of the law is not justified. The discrimination is 
therefore illegal, and the public administration which 
enforces it is a denial of the equal protection of the 
laws and a violation of the Fourteenth Amendment 
of the Constitution. The imprisonment of the peti­
tioners is therefore illegal, and they must be dis­
charged.”  Yick Wo v. Hopkins, 118 U. S. 356, 374.

“ In effect §23 divides those operating taxicabs 
into two classes. The gross receipts of incorporated 
operators are taxed while those of natural persons 
and partnerships carrying on the same business are 
not. The character of the owner is the sole fact on 
which the distinction and discrimination are made 
to depend. The tax is imposed merely because the 
owner is a corporation. The discrimination is not 
justified by any difference in the source of the re­
ceipts or in the situation or character of the prop­
erty employed. It follows that the section fails to 
meet the requirement that a classification to be con­
sistent with the equal protection clause must be 
based on a real and substantial difference having 
reasonable relation to the subject of the legislation.”  
Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, 
402.

This Court in 1916 in deciding another question involv­
ing the power of a state to classify stated:

“ ..  . Bed things may be associated by reason of their 
redness, with disregard of all other resemblances or



9

of distinctions. Such classification would be logi­
cally appropriate. Apply it further: make a rule 
of conduct depend upon it, and distinguish in legis­
lation between red-haired men and black-haired men, 
and the classification would immediately be seen to 
be wrong; it would have only arbitrary relation to 
the purpose and province of legislation.”  Tanner 
v. Little, 240 U. S. 369, 382.

Appellees also rely on the caseiS restricting the right of 
aliens to hunt and to operate poolrooms (Br. 73-74) in 
support of the proposition that the racial distinctions in 
public education are therefore valid. But Patsone v. Penn­
sylvania, 232 U. S. 138 and Ohio ex rel. Clarke v. Deckeback, 
274 U. S. 392, distinguish themselves. See Takahashi v. 
Fish do Game Commission, 334 U. S. 410. Certainly, it is 
not a valid argument that because a state law prohibiting 
aliens from operating poolrooms has been held reason­
able, that a state may, therefore, impose racial distinctions 
on American citizens with respect to its public school 
systems.

Appellees additional argument in No. 2 as to reason­
ableness of school segregation laws (Br. 75-78) is merely 
one of custom and tradition (Br. 75-78). This has been 
dealt with in our brief-in-chief (pp. 42-43).

Appellees seek to justify compulsory racial segregation 
on the grounds that “ segregation is the result of racial 
feeling”  and cannot be legislated out of existence”  (Br.
75) ; that such an “ experiment”  of non-segregation will 
not work because the fear of mixed schools hampered the 
development of public education in the last century (Br.
76 ) ; that prohibition of segregation would “ work an aboli­
tion of virtually the entire school system”  and would 
therefore be “ absurd”  (Br. 77); and that the people of 
South Carolina did not want to abandon segregation.

Not only have these arguments been consistently and 
unsuccessfully urged upon this Court in similar cases in



1 0

the past7 but in the Sweatt case respondents in addition 
relied on testimony and the results of a Statewide Survey 
of Public Opinion that 76% of the people polled were 
opposed to “ Negroes and whites going to the same uni­
versities.”  8

Appellees in No. 4 assert (Br. 66-75) the “ reasonable­
ness”  of the segregation requirement. They have reviewed 
the testimony of their witnesses (Br. 69-73) in an effort 
to support this contention. But we do not find in this testi­
mony the elements which the general classification test 
under equal protection clause demands of all state legis­
lative and constitutional enactments.

All items of this testimony fall within one of two 
categories:9 (1) those referring to long-standing “ cus­
toms”  and “ traditions”  of Virginians, a consideration 
already treated by appellants (Br. 42-43), and (2) opinions 
as to the effects of school desegregation, both generally and 
upon Negro students particularly.

As to the latter, there is substantial evidence to the 
contrary.10 But more fundamentally, the considerations 
urged cannot resolve the issue. So far as appellees’ posi­
tion is predicated upon the assumption of an adverse com­
munity reaction, it is a declaration that constitutional rights 
characterized by this Court as personal and present can 
be postponed until the community desires to honor them. 
Clearly, the Constitution forbids such a subversion of 
fundamental individual rights to inconsistent local policy.

7 Brief for Respondents in Sweatt v. Painter, No. 44, October 
Term, 1949, pp. 92-98; see also Brief for Attorneys General of Several 
Southern States filed in the same case.

8 Id. at 231.
9 The testimony of appellees’ witnesses in this connection is 

summarized in appellants’ opening brief upon the original argument 
(pp. 22-25).

10 Summarized in appellants’ opening brief upon the original 
argument (pp. 18-22).



11

And so far as appellees’ position is based upon the 
assumption that desegregation will not benefit Negro stu­
dents—because, it is said, discriminations will be imposed 
by individual white students—it fails to distinguish be­
tween constitutionally permissible individual activity and 
constitutionally proscribed governmental activity. See 
McLaurin v. Oklahoma State Regents, 339 U. S. 637, 641- 
642; Shelley v. Kraemer, 334 U. S. 1, 13, 14.

Nor may it be assumed, as appellees seem to assume, 
that the state may undertake to determine that appellants ’ 
best interest is served by continued school segregation. 
That suggestion was made in MeKissick v. Carmichael, 187 
F. 2d 949 (CA 4th 1951), cert, denied, 341 U. S. 951. There 
the Court of Appeals said at pages 953-954:

. . the defense seeks in part to avoid the charge 
of inequality by the paternal suggestion that it wTould 
be beneficial to the colored race in North Carolina 
as a whole, and to the individual plaintiffs in par­
ticular, if they would cooperate in promoting the 
policy adopted by the State rather than seek the 
best legal education which the State provides. The 
duty of the federal courts, however, is clear. "We 
must give first place to the rights of the individual 
citizens, and when and where he seeks only equality 
of treatment before the law, his suit must prevail. It 
is for him to decide in which direction his advantage 
lies.”

The evidence does not establish, nor does it elsewhere 
appear, that there are any differences between the races 
of educational significance or that educational segre­
gation subserves any valid educational objective. This is 
the minimum standard which the equal protection clause 
prescribes for all legislation (Appellants’ Br. 45-47), and 
the segregation laws involved here fail to meet this test.



12

I V

Appellees have an erroneous conception of state 
understanding and contemplation concerning the effect 
of the 14th Amendment with respect to segregated 
schools.

1. Appellees in No. 2, motivated by a desire to avert 
any misleading of this Court by appellants, “ have found 
a considerable number of errors—errors of omission and 
of commission—in appellants ’ account of state action 
regarding the Amendment and segregated schools”  (App. 
B at 4). Appellees in No. 4 have not been less diligent in 
their editorial efforts. While there are a few paginal 
errors in our citations which we will amend at the outset, 
we were unable to discover any errors of substance in our 
interpretation.

Appellees point out that they are unable to find sup­
port for a statement made regarding the education article 
of the Arkansas Constitution of 1868 in the treatise cited 
by us as authority (Br. No. 2, App. B at 6-7; Br. No. 4 at 
158). Appellants admit that the task of appellees would 
have been made less onerous had the correct page references 
been given: it is at pages 245, 250 of the cited treatise. 
Similarly, appellees unearthed an incorrect paginal refer­
ence in appellants’ documentation of the North Carolina 
action (Br. No. 2, App. B at 39; Br. No. 4 at 191-192). The 
reference in the cited treatise should be to pages 312-313.

2. Much importance is attached by appellees to their 
conclusion that we have charged the late Confederate states 
with having “ perpetrated a gigantic fraud on the United 
States”  (Br. No. 4 at 154. See Br. No. 2, App. B at 2). 
Their design is obviously to detract from the significance 
of the events which transpired in these states. Appellants 
reply that history undeniably records the events. We



13

have attempted to dispassionately present the significant 
action taken in these states, and respectfully submit that 
the conclusion above is appellees’ own.

Appellees in these cases seem to contend that an answer to 
the Court’s inquiry with respect to what the ratifying states 
understood or contemplated the effect of the Fourteenth 
Amendment to be rests primarily upon an examination of 
the action or lack of action which the state legislatures and 
conventions took to conform their school laws to the new con­
stitutional mandate (Br. No. 2, App. B at 2; Br. No. 4 at 18, 
150,151). We concur in this, but seriously disagree with ap­
pellees’ conclusion, predicated upon such evidence, that no 
legislature which ratified the Amendment contemplated or 
understood that it would prohibit segregation in public 
schools (Br. No. 2 at 48; Br. No. 4 at 26, 209-210). To us, 
such a conclusion is on its face absurd. And, to create sup­
port for this conclusion, appellees have substituted as bases 
therefor accounts of the action of state legislative bodies 
which are deceptive in stress and content.

3a. First, appellees charge that we have mistakenly char­
acterized the education article of the Alabama Constitution 
of 1867 as an “ anti-segregation article”  (Br. No. 2, App. 
B at 5). Appellants submit that the Alabama education 
article was borrowed from the Iowa education article. 
Compare Ala. Const., Art. X I (1867) with Iowa Const., Art. 
IX  (1857). And compare particularly Ala. Const., Art. XI 
§ 6 (1867) with Iowa Const., Art. IX  § 12 (1857). In 1857, 
the Iowa Supreme Court struck down a statute which 
irreeusably compelled segregated schools on the ground 
that Article IX, section 12 of the Constitution prohibited 
any distinction being made between white and colored 
children. District Township v. City of Dubuque, 7 Iowa 
262 (1858). When legislation is adopted from another state 
the construction placed upon such legislation by the highest 
court of the state from which it was taken is treated as



14

incorporated therein so as to govern its interpretation. 
Marline. Lewallen, 276 U. S. 58, 62 and the cases there cited. 
See Walden v. Grots, 1 Wheat. 292; Blair v. Cantey, 29 
S. C. L. (2 Spears) 34; Doswell v. Buchanan, 3̂ Leigh (Ya.) 
365. Thus, appellants deemed “ anti-segregation article”  
an appropriate characterization of Article XI, section 6 
of the Alabama Constitution of 1867.

b. Appellees imply that during the time of reconstruc­
tion Florida did not provide for a free public school sys­
tem for white students although public funds had been 
appropriated for the education of Negroes (Br. No. 2, App. 
B at 11; Br. No. 4 at 162, 163). There are two mis-state­
ments here. Florida did maintain a system of public 
schools for white students at the tim e;11 and Negroes, al­
ready taxed for the support of these schools, had an addi­
tional tax imposed upon them for the specific support of 
their own schools.12 Furthermore, appellees ’ assertion that 
Florida enforced segregated schools during the period 
when state law omitted any sanction for segregated schools 
(1868-1872) and when such schools were expressly for­
bidden (1873-1887) is unsupported except by what appears 
to be an unofficial statement of the Attorney General of 
Florida (Br. No. 4 at 163-164).

c. Again, speaking of the development of public educa­
tion under the provisions of the Louisiana Constitution of 
1868 which forbade segregated schools, appellees state that 
no effective school system was established while this con­
stitution was in effect (Br. No. 2, App. B at 23; Br. No. 4 
at 174). Appellants submit that authorities equally as

11 Fla. Laws 1866, c. 1486. Observe this was the same legisla­
ture which provided for colored schools. See fn. 4, infra.

12 Fla. Laws 1866, c. 1475. See Cong. Globe, 39th Cong., 1st 
Sess., App. 217 (1866). (Remarks of Senator Howe)



15

reliable as those cited by appellees positively contradict 
this statement.13

d. Appellees’ treatment of Nebraska’s understanding 
(Br. No. 2, App. B at 32-33; Br. No. 4 at 182-183), ignores 
the fact that Nebraska entered the Union pursuant to the 
“ fundamental and perpetual condition”  maintained in the 
Enabling Act of February of 1867 that there shall be no 
abridgement or denial of the exercise of the elective fran­
chise, or any other right, to any person by reason of race 
or color. . . . ”  (emphasis supplied). 14 Stat. 377. Pur­
suant to this requirement, Nebraska effectively repealed 
the laws which formerly had apparently excluded Negroes 
from public schools and neither by statute nor in practice 
sanctioned racial segregation in public schools subsequent 
to its ratification of the Amendment. The legal significance 
of this flows from Nebraska’s apparent understanding that 
any restriction upon Negroes’ full enjoyment of a public 
education, i.e., by exclusion or mandatory segregation or1 
permissive segregation, would be a denial of a right by 
reason of race or color and violative of the Fourteenth 
Amendment which they ratified in conformity with the 
fundamental condition. Furthermore, the imposition of 
this condition did not exceed congressional authority. 
Bolin v. Nebraska, 176 U. S. 83, 87. It was apparently jus­
tified as a requirement which would put Nebraska on an 
equal footing with the original states and cannot be viewed 
as solely referrable to Nebraska. See Coyle v. Smith, 221 
U. S. 569; Permoli v. New Orleans, 3 How. 589.

e. To imply that the North Carolina Constitution of 
1868 provided for segregation in public schools, as appel­
lees do (Br. No. 2, App. B at 39; Br. No. 4 at 188) is a 
misleading half-truth. The education articles specifically

13 2 Cong. R ec., App. 478 (1874). (Statement of Rep. Darrall of 
Louisiana). See remarks of Sen. Harris of Louisiana. Cong. 
Globe, 41st Cong., 3rd Sess. 1055.



16

refrained from any intimation of a racial distinction in the 
establishment of public schools and contains no authoriza­
tion therefor.14 Appellees similarly report only part of the 
story when they asert that, within two weeks of the legisla­
ture’s ratification of the Amendment, both houses adopted 
a resolution which directed the joint assembly to provide 
a system of free schools “ but that the races should be 
segregated”  (Br. No. 2, App. B at 40; Br. No. 4 at 189). 
Diligent research by a well known authority on public 
schools in the state reveals that such a resolution was 
adopted in the lower chamber but that the upper chamber 
deleted the segregation proviso and concurred only in so 
much of the resolution as instructed the board of education 
to prepare and report a plan for the organization and 
maintenance of public schools.15

f. In Pennsylvania, appellees report that subsequent 
to the state’s ratification of the Fourteenth Amendment, 
segregation was upheld when attacked on constitutional 
grounds in 1873 (Br. No. 2, App. B at 44-45; Br. No. 4 at 
194). Appellees’ authority for this statement is Common­
wealth v. Williamson, 30 Leg. Int. 406 (1873). It is our 
understanding that this case arose when the school directors 
of Wilkes-Barre united two districts, each having less than 
twenty Negro children, and established a single school for 
Negroes. The Court held that this was a violation of the 
law of 1854 which required separate schools only where 
twenty or more colored pupils were available in a school 
district.

g. Appellees admit that the South Carolina legislature 
extended the prohibition against segregation in public 
schools to preclude segregation in the University of South

14 See N. C. Const., Art. IX, §§ 1-17 (1868).
15 N oble, A  H istory of the P ublic Schools in  N orth Caro­

lin a  312-313 (1930).



17

Carolina16 and that the state superintendent of schools 
sought to enforce total non-segregation at the State In­
stitution for the Deaf, Dumb and Blind.17 Whether these 
actions contradicted appellees’ conclusion that there was 
“ no real effort to require amalgamated schools”  (Br. No. 
4 at 199; Br. No. 2, App. C passim) may not be decisive. 
But one cannot review the debates of the Constitutional 
Convention of 1868 and concur in appellees’ conclusion 
that the framers of that instrument did not think that the 
Fourteenth Amendment prohibited mandatory segregated 
schools.18 Apposite to appellees’ inference that racially 
integrated schools were the exception in South Carolina, 
appellants here take the position that voluntary segrega­
tion on the part of Negro pupils is not inconsistent with 
absolute prohibition of any compulsory racial separation 
in public schools.

h. Finally, appellees so present their evidence with 
respect to California (Br. No. 2, App. B at 7-9; Br. No. 4 
at 159-160), Illinois (Br. No. 2, App. B at 15-16; Br. No. 4 
at 165-167), Indiana (Br. No. 2, App. B at 16-19; Br. No. 4 
at 167-170), Ohio (Br. No. 2, App. B at 41-42; Br. No. 4 at 
190-192) and Pennsylvania (Br. No. 2, App. B at 43-45; 
Br. No. 4 at 192-194) that they obscure the fact that the 
post Amendment development of legislation in these states 
unequivocally demonstrates a trend away from racial ex­
clusion and separation by force of law. It is submitted 
that this conclusion is inevitable when comparison is made 
with appellants ’ effort to more fully present in chronologi­

16 S. C. Laws No. 125 (1869); S. C. Acts & Res. 1868-69, pp. 203- 
204.

17 Fifth Annual Rep. State Supt. Educ.— 1873, p. 15. See S im p - 
kins and W oody, South Carolina D uring R econstruction 439- 
440 (1932).

18 Proceedings of the Constitutional Convention, etc. 100- 
101, 264-272, 654-656, 685-708, 899-901.



18

cal sequence all the school legislation enacted in these 
states during the pertinent period.

4. In sum, we submit that appellees’ treatment 
of the state ratification aspect of Question One contains 
serious omissions and unfortunate distortions of subject 
matter. In contrast we invite the Court’s attention to the 
treatment of this question in the brief of the United States 
as Amicus Curiae on reargument.

For the convenience of the Court we have set forth in 
Appendix B, a graphic summary highlighting all the ma­
terials we could find. We submit that the available evidence 
amply supports our original conclusion that the states 
which ratified the Fourteenth Amendment understood and 
contemplated that it prohibited segregated schools.

V

Local customs, mores and prejudices cannot pre­
vail against the Constitution of the United States.

Despite the technical argument of appellees on the 
intent of the framers of the Fourteenth Amendment, of the 
39th Congress and the state legislatures, the burden of 
their argument begins and ends with the proposition that 
their police power, their mores and customs, and alleged 
racial prejudices are so paramount as to suspend any neces­
sity for application of the general test of reasonableness to 
their school segregation laws and to justify non-compliance 
with the admitted intent and purpose of the Fourteenth 
Amendment—to destroy all state imposed class distinctions. 
The truth of the matter is that this is an attempt to place 
local mores and customs above the high equalitarian prin­
ciples of our Government as set forth in our Constitution 
and particularly the Fourteenth Amendment.



19

This entire contention is tantamount to saying that the 
vindication and enjoyment of constitutional rights recog­
nized by this Court as present and personal can he post­
poned whenever such postponement is claimed,to be socially 
desirable. We need go no further than McLcmrin v. Okla­
homa State Regents, supra, to learn that this exalta­
tion of local policy over fundamental individual rights 
declared in the Federal Constitution is not tolerable in the 
United States.

And there are striking and persuasive analogies in other 
situations where local policy has been urged to minimize 
or override individual constitutional rights. More than a 
hundred years ago South Carolina attempted to prevent 
the free movement of Negro seamen into and about its 
seaport cities on the ground that domestic order and tran­
quility required their exclusion. Justice Johnson,19 
sitting on Circuit in South Carolina in 1823 did not hesitate 
to overrule this defense and condemn the restriction as 
unconstitutional. Elkinson v. Delisseline, 8 Fed. Cas. 493 
(C. C. S. C. 1823). He disposed of this argument at page 
496 as follows:

“ But to all this the plea of necessity is urged; 
and of the existence of that necessity we are told 
the state alone is to judge. Where is this to land 
us? Is it not asserting the right in each state to 
throw off the federal Constitution at its will and 
pleasure? If it can be done as to any particular 
article it may be done as to all; and, like the old 
confederation, the Union becomes a mere rope of 
sand. . . .”

The present apprehensions of South Carolina and Virginia 
have no better standing to impede appellants’ enjoyment of 
their constitutional right to be relieved of the educational

19 See: Mr. Justice William Johnson and the Constitution, 57 
Harv. L. Rev. 328, 338.



2 0

disadvantages which those states have imposed upon them 
solely because of their color.

The realistic answer to the contentions of appellees 
is that, despite the dire predictions of the attorney generals 
of 12 southern states in the Sweatt case, in less than two 
years after this Court decision in the Sweatt and McLaurin 
cases over 1500 Negro students had been enrolled in for­
merly all white state, graduate and professional schools in 
twelve of the southern states.20 It is perhaps more signi­
ficant that “  [pjrivate institutions in eight states (Georgia, 
Kentucky, Louisiana, Texas, Maryland, West Virginia, Vir­
ginia and Missouri) and the District of Columbia have 
revised their admission policies and admitted Negro stu­
dents. In an institution in one state there were 251 Negro 
students registered and five Negro teachers on the faculty. 
“ Editorial Comment: The Courts and Bacial Integration 
in Education,”  21 J. Negro Ed. 3 (1952).

Even closer is the fact that in the companion case of 
Gebhart v. Belton, No. 10, Negro students have been ad­
mitted to heretofore all white schools without untoward 
incident. A  recent survey by one of the witnesses for 
respondents in the Gebhart case reveals that: 21

“ Summarizing- these observations, one can say 
that the abolition of segregation removes a handicap 
that interferes with the self-realization and social 
adjustment of the child. The much-predicted ill 
effects of such a step did not eventuate. As one 
parent put it: ‘ If they’d leave it to the children
themselves it would be alright. It is really only what 
the older people say that makes it harder for chil­
dren to get along with other children. ’ ’ ’

2»21 J. Negro Educ. 321 (1952).
21 W ertham , Psychiatric Observations on Abolition of School 

Segregation, 26 J. Ed. Soc. 336 (1953).



21

Local mores and customs and local political expediencies 
not only should not prevail but cannot exist in the presence of 
the overriding national and international need for the full­
est reserve of manpower in time of war. A recent report 
issued this year by the Selective Service System points up 
in much detail the experience of our Government in trying 
to overcome the handicap to our national war effort as a 
result of segregation and other modes of discrimination in 
public education in the South.

On the question of education, this report finds that:
“ The question as to whether or not one com­

munity, county or State provides adequate educa­
tional opportunities is a matter of concern for all of 
the citizens in all of the States. Communities, coun­
ties and States with high educational standards are 
compelled to absorb the manpower procurement defi­
ciencies of States with poor educational programs. 
In the final analysis, the former actually pay in lives 
for the educational deficiencies of the latter. The 
safety of the Nation depends in a large measure upon 
citizens in every State and section having a reason­
able minimum of education.

“ In consequence, the following statement has sig­
nificance for the extent to which low educational 
standards are a national liability in time of war:

Educational deficiency, or failure to pass Army 
intelligence tests primarily because of educational 
deficiency, has deprived our armed forces of more 
physically fit men than have the operations of the 
enemy. Total American war casualties as of the last 
official announcement were 201,454; total rejected for 
failure to pass Army intelligence tests primarily be­
cause of educational deficiency who have no other 
disqualifying defect have been about 240,000. ’ ’ 22

22 Special Groups, Special Monograph No. 10, Selective Service 
System, p. 166 (1953).



This report recognizes as one of the involved problems 
standing between our Government and full and complete 
mobolization in the time of future emergency.

“ Educational levels and backgrounds of minority 
registrants plagued Selective Service, the armed 
forces and industry alike, with no adequate solution 
resulting. Modern mechanized civilization requires 
a minimum basic educational level which often had 
not been attained by the racial minority registrant.

Here again his cultural background contributed 
heavily. Substandard schools, equally poor physical 
facilities, teachers with inadequate preparation and 
a lower per capita expenditure of school funds, all 
common throughout the South, were foremost among 
the factors creating this condition.

When these are coupled with morale factors, 
which are the inescapable concomitants of racial dis­
crimination and segregation, the obvious result 
placed the Negro registrant at a marked disadvan­
tage even before his preinduction examination. He 
was discriminated against in the civilian life he was 
soon to leave, and according to reports of prior in­
ductees, he was to meet new and greater problems in 
the armed forces. Furthermore, industry presented 
the same ‘ closed door, no opportunity’ problem to 
both those with skills and those with aptitudes quali­
fying them for apprentice training in essential war 
work. ’ ’ 23

The same monograph includes among its recommenda­
tions the following:

“ In the event of war or otherwise, all American 
citizens must be treated alike in the operation of 
Selective Service regardless of national origin.

It ought to be stressed that the maximum use of 
manpower in a national emergency can best be ob­
tained through integration. A method which re­
quires the use of men on the basis of racial separa­

2 2

23 Id. at page 189.



23

tion tends to defeat its own purposes and racial 
quotas in industry, agriculture and the armed forces 
are difficult of justification.

“ There needs to be greater recognition of the 
‘ physical, educational and social’ problems encoun­
tered during the operation of the 1940 Act with ref­
erence to registrants of minority racial groups and 
the development of a long-range planning program 
that will ultimately resolve these ills and assist such 
minorities to have the same opportunities as other 
citizens. Remedial measures properly applied with­
out delay should show benefits in the increased size 
of the total manpower pool and net additional man­
power which may be badly needed in the event of 
another major war.”  24

The gravamen of appellees ’ argument is that as a matter 
of policy, legislative or otherwise, the people of South 
Carolina and Virginia desire that all Negroes be excluded 
from the white schools and vice versa. They also assert 
that the removal of racial segregation in public education 
will not be acceptable to the people of South Carolina and 
Virginia. The individual rights of the appellants herein 
cannot be made dependent upon this reasoning. This Court 
stated in the McLaurin case:

“ It may be argued that appellant will be in no 
better position when these restrictions are removed, 
for he .may still be .set apart by his fellow students. 
This we think irrelevant. There is a vast difference 
—a Constitutional difference— between the restric­
tions imposed by the state which prohibit the intel­
lectual commingling of students, and the refusal of 
individuals to commingle where the state presents 
no such bar. Shelley v. Kraemer, 334 U. S. 1, 13, 14, 
92 L. ed. 1161, 1180, 1181, 68 S. Ct. 836, 3 ALE 2d 
441 (1948). The removal of the state restrictions 
will not necessarily abate individual and group pre­
dilections, prejudices and choices. But at the very 
least, the state will not be depriving appellant of the

2* Id. at 191.



24

opportunity to secure acceptance by his fellow stu­
dents on his own merits. ’ ’

It bears repeating that appellants in these cases are only 
seeking to remove the barrier of state-imposed racial segre­
gation in the educational opportunities and benefits offered 
by these states.

CONCLUSION

W e respectfully submit that, for the reasons stated 
herein and in appellants’ other briefs, the decrees of 
the District Courts should be reversed.

H arold B oulware,
R obert L . Carter,
J ack Greenberg,
Oliver W . H ill ,
T hurgood Marshall,
L ouis L . R edding,
Spottswood W . R obinson, III, 
Charles S. S cott,

Attorneys for Appellants.
Charles L. B lack , J r .,
E lwood H . Chisolm ,
W illiam  T. Coleman, Jr.,
Charles T. D uncan ,
George E . C. H ayes,
L oren M iller,
W illiam  R . M ing, J r .,
C onstance B aker M otley,
J ames M. N abrit, J r .,
D avid E . P in sky ,
P rank  D. R eeves,
J ohn  S cott,
J ack B. W einstein ,

of Counsel.



25

Appendix A

Appellees put great stress on the action of the 39th Con­
gress in regard to schools in the District of Columbia: 
“ The Establishment of Separate Schools for Negroes in the 
District of Columbia Before the End of the Civil W ar”  
(Br. No. 2, App. A, at 2, 3 ); “ Attempts to Require Mixed 
Schools in the District of Columbia”  (Br. No. 2, 52-55); 
“ The Early District of Columbia Schools”  (Br. No. 4, 86- 
87). The action of Congress in regard to schools in the 
District of Columbia is not material to a determination 
of the intent of Congress as regards the Fourteenth Amend­
ment. The 39th Congress considered the District of Colum­
bia school situation perfunctorily, as routine business, with 
little debate and practically no discussion of note.1 There 
is nothing in any of the debates on these measures to 
indicate that Congress contemplated or understood that 
the Fourteenth Amendment did not prohibit segregated 
schools.2

Appellees argue that the debates on the Freedmen’s 
Bureau Bill do not support a conclusion that the civil rights 
referred to in the Bill included the right to attend segregated 
schools (Br. No. 2, App. A, at 3-11; Br. No. 4, 87-90).

It is clear that several members of the Congress oppos­
ing the Freedmen’s Bureau thought that the bill would be 
used to promote mixed schools and that the Bureau was 
already doing this. Representative John L. Dawson of 
Pennsylvania, one of the opponents to the bill, made this 
clear in his statement on January 31, 1866: “ . . . They
[the Radicals] hug to their bosoms the phantom of Negro

1 See also Cong. Globe, 37th Cong., 2d Sess. 1544, 2037, 2157 
(1862); Cong. Globe, 38th Cong., 1st Sess. 2814, 3126 (1864).

2 For a complete discussion of this point see Brief for Petitioners 
in Bolling v. Sharpe, et al., # 8 , pp. 23-46.



26

equality. . . . They hold that the black and white races are 
equal. This they maintain involves and demands . . . that 
Negroes should be received on an equality in white families 
. . . their children are to attend the same schools with white 
children, and to sit side by side with them. . . . ’ ’ 8

Appellees in No. 4 (Br. 91) make the assertion that Sena­
tor Trumbull of Illinois pointed out that the Civil Rights Act 
of 1866 included only these civil rights specifically enume­
rated. To the contrary, Senator Trumbull said about the 
bill: “ Then, sir, I take it that any statute which is not
equal to all, and which deprives any citizen of civil rights 
which are secured to other citizens, is an unjust encroach­
ment upon his liberty; and is, in fact, a badge of servitude 
which, by the Constitution, is prohibited.”  3 4

Appellees in No. 4 (Br. 92) seek to limit the scope of the 
Civil Rights Act of 1866 (both the bill as introduced and the 
bill as amended). Then they argue that the scope of the 
Fourteenth was limited by the alleged scope of the Civil 
Rights Act. They are wrong on both points. As to the 
Civil Rights Bill they ignore the following:

The comments of Senator Johnson as to the effect of the 
bill on miscegenation: 5

“ . . . What is to be its application? There is not 
a State in which these Negroes are to be found where 
slavery existed until recently, and I am not sure that 
there is not the same legislation in some of the States 
where slavery has long since been abolished, which 
does not make it criminal for a black man to marry a 
white woman, or for a white man to marry a black 
woman; and they do it not for the purpose of denying 
any right to the black man or to the white man, but 
for the purpose of preserving the harmony and peace

3 Cong. Globe, 39th Cong., 1st Sess. 541 (1866) .
4 Cong. Globe, 39th Cong., 1st Sess. 474 (1866).
B Id. at 505.



27

of society . . .  Do you not repeal all that legislation 
by this bill? . . .  Is it not clear that all such legisla­
tion will be repealed?”

* * *
[Johnson then illustrates this conflict in the anti­

miscegenation law of Maryland and the Federal law 
and how the state is denied its rights.]

“ . . . White and black are considered together, 
put in a mass, and the one is entitled to enter into 
every contract that the other is entitled to enter into. ’ ’

The comments of Senator Davis with respect to the 
criminal codes: * 7 8

“ . . . Here the honorable Senator in one short 
bill breaks down all the domestic systems of law that 
prevail in all the States. . . .  To the extent that a 
negro is by them subjected to a severer punishment 
than a white man, this short bill repeals all the penal 
laws of the States. . . . ”

Senator Hendricks of Indiana on the effects of the bill 
on the entrance of free Negroes:T

“ . . .In  the State of Indiana we do not recognize 
the civil equality of the races. . . . The policy of the 
State was to prevent the further immigration of 
colored people into the State after 1852, and as a 
means of preventing that we denied to colored people 
who might come into the State after that date the 
right to acquire real estate. . . .  Is this law to have 
the force of vesting in the colored people who came 
into that State since 1852 a good sufficient title to 
land when the constitution and the law of the State 
denied that right?”

Senator Morrill’s comment on the revolutionary char­
acter of the Civil Rights B ill: 8

8 Id. at 598.
7 Id. at 602.
8 Id. at 570, 571.



28

“  • • • this amendment to which I address myself 
is important in another respect. It marks an epoch 
in the history of this country, and from this time 
forward the legislation takes a fresh and a new de­
parture. . . .  I hail it, therefore, as a declaration 
which typifies a grand fundamental change in the 
politics of the country, and which change justifies the 
declaration now.

• • That the measure [S. 61] is not ordinary 
is most clear. There is no parallel . . . for it in the 
history of this country; there is no parallel for it in 
the history of any country. No nation from the foun­
dation of government has ever undertaken to make 
a legislative declaration so broad. Why? Because 
no nation hitherto has ever cherished a liberty so 
universal. The ancient republics were all exceptional 
in their liberty; they all had excepted classes, sub­
jected classes, which were not the subject of govern­
ment ; and therefore they could not so legislate. That 
it is extraordinary and without a parallel in the his­
tory of this Government or of any other does not 
affect the character of the declaration itself.

“ The Senator from Kentucky tells us that the 
proposition is revolutionary, and he thinks that is an 
objection. I freely concede that it is revolutionary. I 
admit that this species of legislation is absolutely rev­
olutionary. But are we not in the midst of revolution? 
Is the Senator from Kentucky utterly oblivious to the 
grand results of four years of war? Are we not in the 
midst of a civil and political revolution which has 
changed the fundamental principles of our Govern­
ment in -some respects?

# # *

“ . . . I deny that [our] Government was organ­
ized in the interest of any race or color, and there is 
neither ‘ race’ nor ‘ color’ in our history politically or 
civilly. Is there any ‘ color’ or ‘ race’ in the Declara­
tion of Independence, allow me to ask? ‘ All men are 
created equal’ excludes the idea of race or color or 
caste. There never was in the history of this country



29

any other distinction than that of condition, and it 
was all founded on condition. ”

# # *

The sweeping character of the bill was made eminently 
clear by Senator Trumbull when he stated: “  . . . The very 
object of the bill is to break down all discrimination between 
black men and white men. . . . ”  9

Senator Cowan, in commenting upon the earlier remarks 
by Senator Hendricks of Indiana, said: 10

# * #
“ But this is not a bill simply for the abolition of

slave codes. This is a bill for the abolition of all laws 
in the States which create distinctions between black 
men and white ones.

*  # #

“ This is a proposition to repeal by act of Con­
gress all State laws, all State legislation, which in 
any way create distinctions between black men and 
white man insofar as their civil rights and immu­
nities extend. It is not to repeal legislation in regard 
to slaves. . . .  I hold—educated in the school in 
which I have been educated, and it was not that of 
the strictest constructionists, nor was it in that lati- 
tudinarian school which can extract anything from 
. . .  the Constitution, but it was in the fair construc­
tion school. . . . This bill pretends to repeal those 
laws, to set them, at naught; and it pretends more­
over to go further, and to make the State officers who 
attempt to execute those laws criminals. . . . ”

* # *

Senator Trumbull again rose to speak upon the bill and 
made it plain that its object was to repeal all state legisla­

9 Cong. Globe, 39th Cong., 1st Sess. 599 (1866).
10 Id. at 603.



30

tion which created any distinction between black men and 
white men as to their civil rights and immunities,11

, . [The Senator from Kentucky] says that 
when slavery was abolished the slave codes in con­
nection with it were abolished, and that he will advise 
the people of Kentucky to extend the same civil rights 
to the black population that the white population 
have. He believes that they are entitled to them. 
Now, sir, that is all that is provided for by the first 
section of this bill. . . .

“ Then what is our duty? Agreeing as I do with 
him that all slave codes fall with slavery, that it is the 
duty of the States to wipe out all those laws which 
discriminate against persons who have been slaves, 
yet if they will not do it, and Congress has authority 
to do it under the constitutional amendment, is it not 
incumbent on us to carry out that provision of the 
Constitution? That is all we propose to do.

“ . . . There is a positive duty upon us to pass 
such a law if we find discriminations still adhered to 
in the States where slavery has recently existed.”

# # #
Indeed, it is important to remember that if the purpose 

of the Civil Eights Act was, as Trumbull indicated, to 
destroy the Black Codes, then it follows necessarily that this 
Act included more than those rights expressly enumerated.

Appellees in No. 4 cannot gain any support from Sena­
tor Wilson’s statement, as to the scope of the bill on the 
basis of the fact that he was speaking as Chairman of the 
Judiciary Committee and the floor leader (Br. 92, 93). 
The bill was recommitted against Wilson’s wishes.12

It was amended because, as Wilson said, the original 
version had been taken by some as warranting “ a latitudi-

11 Id. at 605.
12 Id. at 1296.



31

narian construction not intended”  (Congressional Globe, 
39th Cong., 1st Session, p. 1366).

Appellees in No. 2 (Br. 13) attack the statement in 
our brief-in-chief that the Civil Rights Act as originally 
drafted was so broad in scope that it was believed to have 
the effect of destroying entirely all state legislation which 
distinguished or classified on account of race, including 
school segregation laws. But Senator Garrett Davis, 
speaking at the time of the Johnson veto, made the follow­
ing statement: 13

“ In many if not most of the States, there are 
discriminations in relation to some of those impor­
tant concerns against the negro race, made by their 
constitutions and statutes; and this act abrogates 
not only those constitutions and laws to that extent, 
but makes their execution by the State officers ap­
pointed for that purpose, a high misdemeanor, and 
punishes them heavily by fine and imprisonment.”

# * #
“ But this measure proscribes all discrimination 

against negroes in favor of white persons that may 
be made anywdiere in the United States by any 
‘ ordinance, regulation or custom,’ as well as by ‘ law 
or statute ’. .  . .

“ But there are civil rights, immunities, and privi­
leges ‘which ordinances, regulations, and customs’ 
confer upon white persons everywhere in the United 
States, and withhold from negroes [on ships, steam­
boats, in hotels, churches, railroads, streetcars.]___
All these discriminations in the entire society of the 
United States are established by ordinances, regula­
tion and customs. This bill proposes to break down 
and sweep them all away, and to consummate their 
destruction, and bring the two races upon the same 
great plane of equality. . . . ”

13 Id., App. 182, 183.



32

Attention is also directed to Senator Davis’ further 
remarks on March 15, 1866, on the completed bill: 14

“ . . . W e  have laws in the State of Kentucky that 
discriminate between the punishment of the whites 
and blacks. Those laws we expect to continue in 
operation, and we expect to execute them in the 
future. What power has Congress to pass a law to 
harmonize the criminal and penal law of the State of 
Kentucky, and command and coerce that the same pun­
ishments which are inflicted upon her white citizens, 
and none other, shall be administered to her negro 
population? What authority has Congress to com­
mand the government and the people of Kentucky, 
or any State to confer on the negro portion of its 
population the same civil rights with which the laws 
invest white citizens? . . .  It [this bill] assumes the 
principle, the general power that would as well 
enable Congress to occupy both of those vast fields 
of State and domestic legislation which regulate the 
civil rights, and the pains, penalties, and punish­
ments inflicted upon the people of the respective 
States which were not delegated to the Government 
of the United States, but were reserved to the States 
respectively and to the people, as to them the most 
important and interesting portion of their original 
sovereignty. ’ ’

Appellees in No. 4 criticize the use of a speech by Mr. 
Bingham of Ohio as “ an example of the misleading charac­
ter of the apparent scholarship of appellants”  (Br. 99). 
Our “ implication”  that Bingham approved of state con­
stitutions banning segregated schools is criticized as 
“ erroneous”  and “ the impression left”  is characterized as 
“ materially misleading”  {Ibid.).

If the context of Mr. Bingham’s speech is examined, the 
original statement objected to by appellees will be found 
to be amply supported by the debates in Congress. On

14 Id. at 1415.



33

May 13,1868, Mr. Beck of Kentucky, speaking against H. K. 
1058, a bill to readmit five southern states, objected to the 
new Constitution of South Carolina in particular which 
provided, he said “ that the white race shall never have 
any public school exclusively for themselves. . . .” 15 The 
following day, Mr. Pruyor of New York reminded the 
House of Beck’s speech regarding “ several most objection­
able provisions [in the new state constitutions], especially 
as to the compulsory education of whites and blacks to­
gether.” 16 Mr. Bingham, speaking after him, defended 
the same state constitutions in a ringing declaration that 
they: 17

“ . . . in accordance with the spirit and letter of the 
Constitution of the United States as it stands 
amended . . . secure equal political and civil rights 
and equal privileg*es to all citizens of the United 
States. . . . Time was in this Republic when that was 
Democracy. ’ ’

Appellees in No. 4 refer to Bingham’s answer to Hale’s 
opposition to the proposed Amendment as an “ elaborate 
speech . . . but no great meaning can be derived from it. ’ ’ 
And refer to Bingham’s reply to Hale as a modification 
of his original answer (Br. 101). No such implication 
is warranted, as can be seen from the colloquy referred to 
below: 18
Bingham

“ . . . They [the Southern people] will, I trust, 
though it may not be without additional sacrifice, 
correct all errors, perfect their Constitutions enforce 
by just and equal laws all its provisions, and so 
fortify and strengthen the Republic that it will stand 
unmoved until empires and nations perish. . . . ”

# # #

15 Cong. Globe, 40th Cong., 2d Sess. 2447 (1868).
16 Id. at 2461.
17 Id. at 2462.
18 Cong. Globe, 39th Cong., 1st Sess. 1094 et seq.



34

“ I urge the amendment for the enforcement of 
these essential provisions of your Constitution, 
divine in their justice, sublime in their humanity, 
which declare that all men are equal in the rights 
of life and liberty before the Majesty of American 
law. . . . Your Constitution provides that no man, no 
matter what his color, no matter beneath what sky he 
may have been born, no matter in what disastrous 
conflict or by what tyrannical hand in his liberty may 
have been cloven down, no matter how poor, no mat­
ter how friendless, no matter how ignorant shall be 
deprived of life or liberty or property without due 
process of law—law in the highest sense, that law 
which is the perfection of human reason, and which 
is impartial, equal, exact justice; that justice which 
requires that every man shall have his right. . . . ”

Hale

“ • • . My question was whether this provision, if 
adopted, confers upon Congress general powers of 
legislation in regard to the protection of life, liberty 
and personal property.”

Bingham

“ It certainly does this; it confers upon Congress 
power to see to it that the protection given by the 
laws of the States shall be equal in respect to life 
and liberty and property to all persons.”

Hotchkiss

“ . . . As I understand it, his [Bingham’s] object 
in offering this resolution and proposing that this 
amendment is to provide that no State shall dis­
criminate between its citizens and give a class of 
citizens greater rights than it confers upon another. 
If this amendment secured that, I should vote very 
cheerfully for it today; but as I do not regard it as 
permanently securing those rights, I shall vote to 
postpone its consideration until there can be a fur­
ther conference between the friends of the measure, 
and we can devise some means wdiereby we shall 
secure those rights beyond a question. . . . ”

# # #



35

“ Now, if the gentleman’s object is, as I have 
no doubt it is, to provide against discrimination to 
the injury or exclusion of any class of citizens in any 
State from the privileges which other classes enjoy, 
the right should be incorporated into the Constitu­
tion. It should be a constitutional right that cannot 
be wrested from any class of citizens or from the 
citizens of any State by mere legislation. But this 
amendment offers to leave it to the caprice of Con­
gress. . . .  I want them [the privileges] secured by a 
constitutional amendment that legislatures cannot 
override. Then if the gentleman wishes to go fur­
ther, and provide by laws of Congress for the en­
forcement of these rights, I will go with him. . . . ”

* .y. -y-

“ His amendment is not as strong as the Consti­
tution nowT is. . . . The Constitution now gives equal 
rights to a certain extent to all citizens. This amend­
ment provides that Congress may pass laws to 
enforce these rights. Why not provide by an amend­
ment to the Constitution that no State shall discrimi­
nate against any class of its citizens, and let that 
amendment stand as an organic law of the land, 
subject only to be defeated by another constitutional 
amendment. We may pass laws here today, and the 
next Congress may wipe them out. What is your 
guarantee then?”

Appellees in No. 4 (Br. 102-103) state that in April 
21, 1866, a “ new plan”  came before the Committee. This 
would seem to imply that H. R. 63, the original Bingham 
version of Section 1, had no relation to that finally adopted. 
Actually, H. R. 63 contained two of the three phrases con­
tained in the final version (“ privileges and immunities”  
and ‘ ‘ equal protection ” ). It differed from the final Section 
1 in three particulars: The negative form of the statement 
(which precluded the necessity for congressional action) 19 
the “ due process”  clause, and the addition of the first

19 Rep. Hotchkiss had pointed out to Bingham the danger of leav­
ing constitutional rights at the mercy of “ mere legislation.”  Cong. 
Globe, 39th Cong., 1st Sess. 1095 (1866).



36

sentence defining citizenship. The Owen version was 
amended out of existence in favor of Bingham’s proposals, 
which consistently built upon the foundation of H. R. 63.20

Appellees refer to the report made by the Joint Com­
mittee on Reconstruction. Their treatment of this report 
leaves the impression it was made during the interval be­
tween the time the proposed amendment was recommitted 
to the Joint Committee and the introduction of the amend­
ment in final form to Congress on April 30, 1866. The impli­
cation that the report was made to Congress between these 
two events is misleading (Br. No. 4 at 103-104). The report 
cited by appellees was submitted on June 20, 1866 and 
did not comprise a careful explanation of the proposed 
amendment by the Committee; on the contrary, it was a 
general statement of the Committee’s views on the problem 
of readmission and only obliquely made any statement which 
could be interpreted as referring to the proposed Con­
stitutional amendment. Schools were “ mentioned in 
neither” , appellees assert, overlooking the fact that 
among other matters not mentioned were: the right to 
contract; the right to sue, be parties, and give evidence; 
the right to inherit, purchase, lease, sell, hold and convey 
real and personal property—in fact, virtually all the rights 
listed in the Civil Rights Act of 1866, despite Appellees’ 
assertion that “ The majority were concerned primarily 
in securing civil rights for the Negroes, apparently the 
civil rights supposedly protected in the Civil Rights A ct”  
(Br. No. 4 at 103).

The only reports of the Committee explanatory of the 
final draft of the Amendment are found in the speeches 
which Senator Howard 21 and Rep. Stevens 22 made when 
they introduced this draft in their respective chambers.

20 K endrick, Journal of  the Joint Committee o f  F ifteen 
on R econstruction 85-107, passim.

21 Cong. Globe, 39th Cong., 1st Sess. 2766 (1866).
22 Id. at 2459.



37

Representative Stevens made it clear that the proposed 
amendment was broad enough to declare that “ Whatever 
law protects the white man shall afford ‘ equal protection’ 
to the black man”  and that the amendment was made neces­
sary by the “ oppressive codes”  (Black Codes) and that 
“ Unless the Constitution should restrain them, these states 
will all keep up this discrimination and crush to death the 
hated freedmen.”  23

In a further effort to limit the scope of the Fourteenth 
Amendment appellees cite a portion of one of Senator 
Howard’s statements (Br. No. 4 at 109). It is understand­
able why appellees neglected to include the first part of the 
sentence they quote. The completed sentence with the 
deleted portion in italics, follows: 24

“ This [the last two clauses of Section 1 of the 
Fourteenth Amendment] abolishes all class legisla­
tion in the States and does away with the injustice 
of subjecting one caste of persons to a code not appli­
cable to another. It prohibits the hanging of a black 
man for a crime for which the white man is not to be 
hanged. It protects the black man in his funda­
mental rights as a citizen with the same shield which 
it throws over the white man.”

Appellees in No. 4 confuse suffrage and nonsegregated 
schools, erroneously suggesting that since Negro suffrage 
was not made mandatory, school segregation was not touched 
by the 14th Amendment (Br, 104). This obvious non sequi- 
tur is even more difficult to understand in view of Senator 
Howard’s speech distinguishing political from civil rights. 
It is made clear from this speech that the right to vote was 
not looked upon as relevant to the full and complete enjoy­
ment of civil rights.25

23 Ibid.
24 Id. at 2766.
25 Id. at 2765.



38

Referring to appellees’ effort in case No. 4 (Br. 104) to 
show that Stevens regarded the Fourteenth Amendment as 
a mere incorporation of the Civil Rights Act, attention is 
directed to Mr. Stevens ’ statement: 26 27 28

‘ ‘ I can hardly believe that any person can be found 
who will not admit that every one of these provisions 
[in the first section] is just. They are all asserted, 
in some form or other, in our D eclaration or organic 
law. But the Constitution limits only the action of 
Congress, and is not a limitation on the States. This 
amendment supplies that defect, and allows Congress 
to correct the unjust legislation of the States, so far 
that the law which operates upon one man shall oper­
ate equally upon all. Whatever law punishes a white 
man for a crime, shall punish the black man pre­
cisely in the same way and to the same degree. 
Whatever law protects the white man shall afford 
‘ equal protection ’ to the black man. ’ ’

It is true that most thought that the main purpose 
of Section 1 was to put the Civil Rights Bill in the Con­
stitution and beyond the reach of future hostile Con­
gresses. But some felt as did Raymond that the Amend­
ment “ secures an equality of rights among all the citizens 
of the United States.”  27 And see Rogers’ charge as to the 
sweeping character of the Bill.28

“ What are the privileges and immunities? Why 
sir, all the rights we have under the laws of the 
country are embraced under the definition of privi­
leges and immunities. The right to vote is a privilege. 
The right to marry is a privilege. The right to con­
tract is a privilege. The right to be a juror is a 
privilege. The right to be a judge or President of 
the United States is a privilege. I hold if that ever

26 Id. at 2459.
27 Id. at 2502.
28 Id. at 2538.



39

becomes a part of the fundamental law of the land it 
will prevent any state from refusing to allow any­
thing to anybody embraced under the term of privi­
leges and immunities. If a negro is refused the right 
to be a juror, that will take away from him his privi­
leges and immunities as a citizen of the United 
States, and the Federal government will step in and 
interfere. . . . It will result in a revolution worse 
than that through which we have just passed.”

It is clear why appellees in No. 4 seek to disparage Sena­
tor Bingham’s speech (Br. 107). It is because he makes 
clear the broad meaning of the Fourteenth Amendment in 
no uncertain terms.29

‘ ‘ The necessity for the first section of this amend­
ment to the constitution, Mr. Speaker, is one of the 
lessons that have been taught to your committee and 
taught to all the people of this country by the history 
of the past four years of terrific conflict—that history 
in which God is, and in which He teaches the pro- 
foundest lessons to men and nations. There was a 
want hitherto, and there remains a want now, in the 
Constitution of our country, which the proposed 
amendment will supply. What is that? It is the 
power in the people, the whole people of the United 
States, by express authority of the Constitution, to 
do that by congressional enactment which hitherto 
they have not had the power to do, and have never 
even attempted to do ; that is, to protect by national 
law the privileges and immunities of all the citizens 
of the Republic and the inborn rights of every person 
within its jurisdiction whenever the same shall be 
abridged or denied by the unconstitutional acts of 
any State.

Allow me, Mr. Speaker, in passing, to say that 
this amendment takes from no State any right that 
ever pertained to it. No State ever had the right, 
under the forms of law or otherwise, to deny to any 
freeman the equal protection of the laws or to abridge

29 Id. at 2542.



40

the privileges or immunities of any citizen of the 
Republic, although many of them have assumed and 
exercised the power, and that without remedy.”

The quote of Senator Howard which appellees in No. 4 
utilize is most misleading (Br. 109). Howard was there 
attempting to distinguish the right to vote as the sole class 
of rights not conferred by the Fourteenth Amendment.30 
It is true that he did not speak specifically of schools since 
he was dealing with constitutional amendments and 
guarantees and spoke in general terms.

30 Id. at 2764.



APPENDIX B

CHART DEMONSTRATING TH AT THE TWELVE STATES SEEKING ADMISSION OR READMISSION DURING RECONSTRUCTION UNDERSTOOD TH AT  
CONGRESS INTERPRETED THE FOURTEENTH AMENDMENT AS PROHIBITING THE LEGAL REQUIREMENT OF SEGREGATION IN EDUCATION

States (W ith Dates 
of Admission or 

Readmission)
Constitution a l  Provisions Regarding the Education of the Races During and After Admission or Readmission Statutory Provisions Regarding the Education of the Races During and After Admission or Readmissionf

Before Congressional 
Reconstruction *

segregation Provision .Proposed During 
Process of Admission or Readmission Constitution Under Which State Was 

Admitted or Readmitted
Provisions After Admission 

or Readmission
Before Congressional 

Reconstruction *

Segregation Provision Proposed During Process 
of Admission or Readmission Provision Under Which Admitted 

or Readmitted Provisions After Admission or Readmission
Proposal Disposition Provision

Legality of 
Mixed Schools

Attempts to Insert Racial 
Proposal Disposition Provision ***

Legality of 
Mixed Schools

Failing to Require Segregation 
or Prohibiting Segregation

Requiring or Providing 
Racial Segregation

A. The Pre-Amendment 
State:

Tennessee 
July 24, 1866

“ . . . for the equal benefit of 
all the people . . ** Const. 
Art. XI, § 10 (1834) (No refer­
ence to race)

Senator Frazier’s amendment to 
restrict the scope of the Four­
teenth Amendment. Tenn. Sen­
ate Journal (Extra Sess.), pp. 
18, 24 (1866)

Failed of passage No change (No reference to 
race)

Legal “No school . .  . shall allow white 
and negro children to be re­
ceived as scholars together . . . ” 
Const. Art XI, § 12 (1870)

“All children . . Acts, 1853- 
54, Compilation of Common 
School Laws, c. 38, § 24. School 
census “of white children,” Id. 
at §25

Act did not “require the educa­
tion of colored and white chil­
dren in the same school.” Laws, 
1865-66, c. XL, § 4, May 26, 
1866. (Segregation not manda­
tory)

Legal Special schools for 25 or more 
colored children. Laws, 1867, 
c. XXVII, § 17 (Mar. 5, 1867) 
Segregation required. Laws, 
1870, c. XXXIII, §4 (Dec. 14, 
1869)

B. The New State:
Nebraska 

March 1, 1867

. . common schools.” En­
abling Act of 1864, § 12. Thorpe, 
The Federal and State Con­
stitutions, v. 4, pp. 2343-2346.

1866 Constitution provided white 
suffrage. Race distinctions or­
dered changed by Congress. Act 
for the Admission of Nebraska 
§3. Thorpe, op. cit., pp. 2346- 
2347.

Nebraska Legisla­
ture accepted con­
ditions of Congress

“ . . . a . . . system of common 
schools . . . ” Const. Art. II, 
Education, § 1 (1866-67) (No 
reference to race)

Legal “ . . . all persons . . . ” Const. 
Art. VIII, §6 (1875) (No ref­
erence to race)

. . enumeration of . . . white 
youth. . .” Laws, Jt. Res. & 
Mem. (Terr.), 1858, pp. 278- 
296, §8

iMnendment to require segrega­
tion. Omaha Weekly Repub­
lican, Feb. 8, 1867

Failed of passage Pledge to deny no rights on 
basis of color. Laws, 1867, pp. 
27-31 (Feb. 20, 1867)

Legal School census “of all the chil­
dren”. Laws, 1867, pp. 101- 
110, §41, June 24, 1867. School 
act—no reference to race. Laws, 
1869, pp. 115-136, §46, Feb. 15, 
1869

C. The Secessionist States:
1. The Crucial Test States

Alabama 
June 25, 1868

“ . . . laws for the encourage­
ment of schools and the means 
of education . . . ” Const. Art. 
IV, §33 (1865) (No reference 
to race)

Proposals for separate schools. 
Jour, of the Ala. Const. 
Conv., pp. 152-53, 237-40, Nov. 
25, 1867.

Failed of passage " . . .  all the children . . . ” 
Const. Art. XI, § 6 (1867) (No 
reference to race)

Legal “  ■ • . separate schools shall be 
provided for the children of 
citizens of African descent.” 
Const. Art. XII, § 1 (1875)

" . . .  every child . . **
Acts, 1855-56, No. 47, Art. V, 
§2 (Feb. 14, 1856)

“Every child . . .” Rev. Code, 
1867, tit. 11, Art. V, §986

Legal Segregation required except by 
unanimous consent of parents. 
(Bd. of Education ruling). Pub­
lic School Laws of the Bd. ol 
Educ., Acts, 1868. p. 148 (Aug. 
11, 1868).

Arkansas 
June 22, 1868

. . [improve] . .. lands . , . for 
the use of schools . . . ” Const. 
Art. VIII, § 1 (1864) (No ref­
erence to race)

Henderson’s Amendment to Ar­
kansas Bill to permit state-im­
posed segregation, June 1, 1868. 
Cong. Globe, 40th Cong., 2nd 
Sess., 2748 (1868).

Failed of passage " . . .  all persons . . . ” Const. 
Art. IX, § 1 (1868) (No refer­
ence to race)

Legal “ . . . all persons . . . ” Const. 
Art. XIV, § 1 (1874) (No ref­
erence to race)

“ . . .  no negro or mulatto shall 
be admitted to attend any pub­
lic school. .. except such schools 
as may be established exclu­
sively for colored persons.” 
Acts, 1866-67, No. 35, § 5, Feb. 
6, 1867 (p. 100)

Henderson amendment to Ar­
kansas Bill to permit state-im­
posed segregation, June 1, 1868. 
Cong. Globe, 40th Cong., 2nd 
Sess., p. 2748 (1868)

Failed of passage “ • • ■ all persons . . . ” Const. 
Art. IX, § 1 (1868). Civil 
rights guarantee. Const. (1868), 
Art. I, § 3 (Repealed old 1867 
law)

Legal ” . . .  separate schools for white 
and colored children and 
youths . . . ” Acts, 1868, No. 
52, § 107 (July 23, 1868)

Florida 
June 25, 1868

“The proceeds of all lands for 
the use of schools . . . ” Const. 
Art. X, § 1 (1865) (No refer­
ence to race)

“ . . . all the children . . with­
out distinction or preference.” 
Const. Art. IX, § I (1868)

Legal “White and colored children 
shall not be taught in the same 
school . . . ” Const. Art. XII, 
§ 12 (1885)

“ . . . indigent white children” 
to be educated from interest on 
general school funds. Acts and 
Resolutions, 1865-66, c. 1,486 
[No. 23], Jan. 16, 1866 
“ . . . schools for freedmen” to 
be supported by a tax on colored 
men only. Acts and Resolu­
tions, 1865-66, c. 1,475 [No. 
12], §§ 4, 6, Jan. 16, 1866

“ . . . without distinction or pref­
erence.” Const. (1868), Art. 
IX, § 1 (Repealed 1866 laws)

Legal “ . . . all the youth . . . ” but 
“separate schools for the dif­
ferent classes . . . when required 
by the patrons . . . ” (No refer­
ence to race) Acts and Reso­
lutions, 1869, c. 1,686 [No. 2], 
§§ 1, 19, Jan. 30, 1869 
“ . . .no citizen . . . shall, by 
reason of race, color, or pre­
vious condition of servitude, be 
excepted or excluded from the 
full and equal enjoyment of 
[accommodations] ; by trustees, 
commissioners, superintendents, 
teachers, and other officers of 
common schools and public in­
stitutions of learning . . . ” (§1). 
“White” removed from laws 
(§3). All conflicting laws re­
pealed (§5). Acts and Reso­
lutions, 1873, c. 1947 [No. 13], 
Jan. 25, 1873

Compulsory segregation. Acts 
and Res., 189S, c. 4335 [No. 14]

. Louisiana
June 25, 1868

" . . .  all children of the State 
. . . ” Const. Title XI, Art. 141 
(1864) (No reference to race)

“All children . . without 
distinction of race, color, or pre­
vious condition. There shall be 
no separate schools . . . estab­
lished exclusively for any race 
. . . ” Const. Title VII, Art. 
135 (1868)
“A university shall be estab­
lished , , . nor shall any laws be 
made . . . violating the letter or 
spirit of [these] articles . . . ” 
Const. Title VII, Art. 142 
(1868)

Legal—required 
by law

“ . . . all children . . . ” Const. 
Art. 224 (1879) (No reference 
to race)
“ . . . establish . . .  a university 
for . . . persons of color . . 
Const. Art. 231 (1879)

“White” specified. Acts, 1847, 
No. 225, May 3, 1847 «~™—---' '*--- --------- Separate schools prohibited by 

Constitution. Const. Tit. VII, 
Art. 135 (1868)

Legal—required 
by law

No reference to race in school 
law. School officers and teach­
ers forbidden to exclude quali­
fied pupils; penalty for viola­
tion (§81). Acts, 1869, No. 
121 (Mar. 10, 1869)

Segregation in compulsory edu­
cation law. Acts, 1914. No, 91, 
§1

N o r t h  C a r o l in a  
June 25, 1868

“ . . . school or schools . . . 
for . . . youth . . .” Const. 
[Art. II], § XLI (1776 as
amended in 1835)

Durham & Graham Amend­
ments for segregated schools. 
Rejected 86-11 and 88-12, respec­
tively. Knight, Influence of 
Reconstruction on Education, 
p. 22 (1913)

Failed of passage “ . . . all the children . . 
Const. Art. IX, §2 (1868) 
(No reference to race)

Legal “ . . . all children [ : ] . . .  the 
children of the white race and 
the children of the colored race 
shall be taught in separate . . , 
schools; no discrimination 
in favor of or to the prejudice 
of either race.” Const. Art. IX, 
§2 (1876)

“White” specified. Laws, 1864- 
65, c. 4, § 11, Dec. 23, 1864

" . . .  all the children . . . ” 
Const., Art. IX, §2 (1868) Legal Separate schools provided. Pub­

lic Laws, 1868-69, c. CLXXXIV, 
§ 50 (April 12, 1869). Public 
Laws, 1871-72, c. CLXXXIX, 
§20 (Feb. 12, 1872)

S o u t h  C a r o l in a  
June 25, 1868

No reference to education in 
Constitution of 1865

Duncan proposal for segregated 
schools. Proc. of the Const. 
Conv. of S. C. . . 1868, pp. 
889-894 (1868)

Failed of passage " . . .  all the children and youths 
of the State, without regard to 
race or color.” Const. Art. X, 
§ 10 (1868)

Legal “Separate schools shall be pro­
vided for children of the white 
and colored races, and no child 
of either race shall ever be per­
mitted to attend a school . , . 
for . . . the other race.” Const. 
Art. XI, § 7 (1895)

Schools for colored children 
mentioned. Stats., 1861-1866, No. 
4733, §XXII (Dec. 21, 1865) 
Resolution: Segregated schools 
supported by Federal and pri­
vate funds authorized. Acts, 
1866, p. viii (Dec. 19-20, 1866)

Gov. Scott proposed separation. 
Jour, of the H ouse of Reps, 
of the State of S. C., Spec. 
Sess., 1868, p. 62

Failed of passage Race distinctions repealed by 
Constitution. Art, X, § 10 (1868)

Legal Discrimination in race at the 
University of South Carolina 
forbidden. Acts and Joint Reso­
lutions. 1868-69, No, 125 (Mar. 
3, 1869)

School census by race. Acts 
and Joint Resolutions, 1868, No. 
18.
" . . .  unlawful for pupils of 
one race to attend the schools 
provided . . . for persons of an­
other race.” Acts and Joint 
Resolutions, 3896. No. 63, § 58

2. The Deferred-Readmis­
sion States

! V ir g in ia
January 26, 1870

“ . . . capitation-tax upon white 
persons . . .  to the purposes of 
education in primary and free 
schools . . . ” Const. Art. IV, 
§22 (1864)

French and Parr proposals for 
separate schools. Jour, of the 
Const. Conv., Va., 1867, pp. 
299, 308, 336, 337 (1867)

Failed of passage " . . .  a uniform system of pub­
lic free schools . . . ” Const. 
Art. VIII, §3 (1870) (No ref­
erence to race)

Legal “White and colored children 
shall not be taught in the same 
school.” Const. Art. IX, § 140 
(1902)

“Any white child . . Code, 
1860, Tit. 23, c. LXXXII, § 12 
Education of Negroes penalized. 
Code, 1860, Tit, 54, c. CXCVIII, 
§§35, 36

No race restriction in Constitu­
tion. Art. VIII, §3 (1870)

Legal Separate schools required Acts, 
1869-70, c. 259, §47 (July 11, 
1870)

; M is s i s s i p p i
February 23, 1870

|

" . . .  schools . . . shall . . .  be 
encouraged . . Const. Art. 
VII, § 14 (1832) (No reference 
to race)

Compton and Phillips pro­
posals for segregation. Jour, of 
the Proceedings in the Const. 
Conv. 1868, pp. 316-318, 479- 
480 (1868)

Failed of passage “ . . . all children . . . ” Const. 
Art. VIII, § 1 (1868-69) (No 
reference to race)

Legal " . . .  all children . . . ” Const. 
Art. 8, §201 (1890)
“Separate schools shall be main­
tained for children of the white 
and colored races.” Const. Art. 
8, §207 (1890)

Apprentice Law for colored chil­
dren. Laws, 1865, c. V. Resolu­
tion that State should educate 
children of Confederate soldiers 
killed or disabled in war. Laws, 
1864, c. LXII (Aug. 13, 1864)

. . all children . . .” Art. 
VIII, § 1 (1868-69). Appren­
tice laws repealed. Laws, 1866- 
67, c. CCCXLV, pp. 443-444 
(Feb. 20, 1867)

Legal Schools for all children, but “an 
additional school” to be estab­
lished on. request of parents or 
guardians of 25 children. (No 
reference to race). Laws, 1870, 
c. I, §49

Separate schools required. Laws, 
1878, c. XIV, § 35

|

J T e x a s
March 30, 1870

“ . . , [public-school] fund . . . 
exclusively for the education of 
all the white scholastic . . . ”
(§2)

. a system of public schools 
for Africans and their children 
- • . ” (§7 ) C o n s t . Art. X 
(1866)

Constitution of 1866, which pro­
vided segregated education for 
whites and Negroes. Art. X, 
§§ 2, 7 Flanagan proposal for 
separate schools. Jour, of the 
Reconstruction Conv., First 
Sess., Texas, 1868, pp. 896, 897 
(1868)

Failed of accept­
ance by Congress 
for readmission

“ . . . all the inhabitants . . . ” 
Const. Art IX, § 1 (1868-70) 
(No reference to race)

Legal “Separate schools shall be pro­
vided for the white and colored 
children . . . ” Const. Art. VII, 
§7 (1876)

Local tax for schools for “in­
digent white children”. Negroes 
exempt from tax. Gen. Laws, 
1866, c. CLIV, Nov. 12, 1866. 
School census of “free white 
population”. Gen. Laws, 1866, 
c. CXLVI, § 9 (Nov. 12, 1866)

“ . . . all the inhabitants . . . ” 
Const., Art. IX, § 1 (1868-70) 
“equal rights” and privileges. 
Const., Art. I, §§ 2, 21 (1868- 
70) (Repealed discriminatory 
laws)

Legal “ . . . separation of the stu­
dents or school” by the boards 
of school directors permitted ; 
no mention of race. Gen. Laws, 
1870 (Called Sess.), c. LX VIII, 
§3 (Aug. 13, 1870), Board of 
Education not to prevent “sepa­
ration.” of students; no mention 
of race. Laws, 1871, c. LIV, § 3 
(April 24, 1871)

j “Separate lists” o f white and 
; colored children. Separation of 
i ciiildren provided. Gen. Laws, 
1 1873, <:. LXUI, §22

j
I

Georgia 
July 15, 1870

.

No reference to education. 
C o n s t , (1865)

Comm, on Education of Const. 
Convention, Jan. 15, 1868, pro­
posed article for separate 
schools, Jour, of the Proc. of 
the Const. Conv. of Ga., pp. 
151, 479, 558 (1867-68)

Failed of passage “ . . . all children . . . ” Const. 
Art. VI, one (1868) (No refer­
ence to race)

Legal " . . .  all children . . ., but sepa­
rate schools shall be provided 
for the white and colored races.” 
Const. Art. VIII, § 1, f[ I (1877)

" . . .  any free white inhabi­
tant . . . ” Acts, 1866, Tit. X, 
No. 108, §3 (Dec. 18, 1866)

“ . . . all children . . . ” Const., 
Art. VI, one (1868) (Repealed 
discriminatory laws)

Legal . , instruction of die white 
and colored youth . . . in sepa- 

■ rate schools” required. Acts 
and Resolutions, 1870, T it VI, 
No, 53, §32 (O ct 13, 1870)

* For Tennessee, before the 39th Congress; for Nebraska, under the Enabling Act of 1864. In general, at the time of this column, Negroes were excluded from all public schools, and statutes in
several states made Negro education illegal. (See chart of statutes.)

** Before emancipation, “every child” or “all children” was understood to mean “every white child” or “ail white children” . A number of southern states made it a penal offense to educate any
. Negro, free or slave,

*** Where no statute was passed during admission, It is understood that conflicts between the new constitution and existing statutes were resolved in favor of the constitution.
! f  In several instances, session laws were not available; for example, Georgia Acts of 1867 and Mississippi Laws of 1868 and 1869. There is no reason to believe that their inclusion would signifi­

cantly affect the findings indicated by this chart.



STATUTES AND PRACTICES RELATING TO THE EDUCATION OF THE RACES PRECEDING AND FOLLOWING ADOPTION OF THE 14TH AMENDMENT

CALIFORNIA, CONNECTICUT, DELAWARE AND ILLINOIS

State State Policy as of June 16, 1866 State Policy as of July 28, 1868
State Policy Effective Immediately Following 

Adoption of the 14th Amendment Subsequent Educational Developments to 1885 References
California Whites admitted to all schools; non-whites only by majority vote 

Statutes of trustees and parents; separate schools for non-whites possible 
by request (1).

No change in provisions with respect to the education of the races. Whites admitted to all schools; Negro and Indian children pro­
vided for in separate schools upon request; Mongolians ex­
cluded (6).

Compulsory attendance in schools required (7) ; Negroes admitted 
to white schools where no separate schools provided (8) ; segrega­
tion of Negroes prohibited in 1880 (9).

1. Stats. 1866, p. 363.
2. Cloud, Education in California 44 (1952).
3. Const., Art. IX (1849); Stats. 1851, c. 126; Stats. 1852, c. LIII: Stats. 

1855, c. CLXXXV.
4. Stats. 1860, c. CCCXXIX, § 8.
5. 2 App. Journals of Senate and Assembly, 17th Sess., pp. 9, 22 [Second 

Biennial Rep. Supt. Pub. Instr. (1866-67). 1
6. Stats. 1869-70, c. DLVI, § 52, 56, 57.
7. Stats. 1873-74, c. DXVI, § 1.
8. Acts Amend. 1873-74 § 26, p. 97.
9. Acts Amend. 1880, c. 44, §62 [Cal. Pol. Code, § 1662 (Deering, 1885)}.

10. Governor Newton Booth, Inaugural Address 10-11 (1871).
11. See n. 9 supra.

Practices Prior to 1860 non-whites generally denied access to public schools 
(2) ; though excluded neither by constitution nor early school 
laws (3) ; state responsibility for education of non-whites recog­
nized by 1860 (4).

One-third of Negro student population admitted into schools with 
whites; popular opinion still supported segregation (S).

No material change in practices. Governor (1871) appealed for abolition of segregated schools, relat­
ing issue to 14th Amendment (10) ; segregation in schools abolished 
in 1880 (11).

Connecticut System of public schools established; no reference to race (1). 
Statutes

No change in provisions with respect to the education of the races. No person to be denied admittance to or instruction in any public 
school on account of race or color (4). [N. B. Amendments to law 
of 1868 re “separate but equal” schools lost in legislature (S).]

Compulsory attendance required in schools in 1872; no reference to 
race (6).

1. Acts 1866, c. CII, § 1.
2. U. S. Dept. Educ., Special Rep. Commr., 1871, p. 328; W arner, N e w  

Haven Negroes 34, 71-72 (1940) ; Morse, A Neglected Period of Con­
necticut’s History 144-92 (1933).

3. U. S. Dept. Educ., op. cit. supra n. 2; W arner, op. cit. supra n. 2.
4. Acts 1868, c. CVIII, § 1.
5. Sen. J. 247-248 (1868); House J. 595-599, 622 (1868).
6. Acts 1872, c. LXXVII, c. 1, § 1.
7. W arner, op. cit, supra n. 2, 119, 174.

Practices Public schools never restricted; teacher discrimination in class­
rooms resulted in establishment of segregated schools by request of 
Negro parents (2).

No material change in general state practice; Hartford’s separate 
school for Negroes recognized by ordinance in 1867 (3).

Desegregation of schools. Segregated schools abolished except two or three existing by mutual 
consent of both races; New Haven (1874) abolished segregated 
schools for Negroes (7).

Delaware District schools free to white children provided; Negroes not taxed 
Statutes for support of these schools (1).

No change in provisions with respect to the races. No change in provisions with respect to the races. Negroes taxed for support of schools operated by the Del. Ass’n 
for the Education of Colored People (4) ; state funds to augment 
support first provided in 1881 (5). [N. B. Increased to $6000 by 
1887 (6).]

1. Rev. Stats. 1852, tit. Sixth, c. 42 §§ 11-12; Rep. U. S. Commr. Educ.. 1869- 
70, pp. 103-104.

2. 2 Reed, Delaware, A History of the First State, c. 30, p. 586 (1947) ; 
Powell, A History of Delaware 262 (1928).

3. Rep. U. S. Commr. Educ., 1872, pp. 55-56; Rep. of the Del. Assn. For 
the Moral Improvement and Education of the Colored People of the 
State (February, 1868) N. Y. Pub. Lib. Doc. No. P. 50318.

4. 15 Laws, c. 48 (March 24, 1875).
5. Laws 1881, c. 362, p. 385.
6. Laws 1883, c. 48, pp. 81-83; Laws 1887, c. 91, pp. 147-148.
7. Rep. U. S. Commr. Educ., 1871, pp. 10, 115-116; Rep. U. S. Commr. Educ., 

1873, p. 49.
8. Rep. U. S. Commr. Educ. supra n. 3.

Practices A few Negro schools established through private effort (2). Delaware Ass’n for the Moral Improvement and Education of the 
Colored People established in 1867; received interracial support for 
the maintenance of schools for Negro children of the state (3).

No material change in practices. Del. Ass’n for Educ. of Colored People, assisted by Freedman’s 
Bureau and in Wilmington by Board of Education, extended net­
work of schools for Negroes (7) ; funds supplemented by tax on 
Negroes in 1875; bill to give Negroes proportionate share of state 
school fund defeated in 1873 (8).

Illinois Public school system provided; white children enumerated; Negro 
Statutes school tax refunded (1).

No change in provisions with respect to the education of the races. General Assembly to provide free schools for all children (4) ; pre­
vious school laws repealed; free schools for all children provided; 
legislature imposed no restrictions on Negro students (S). [N. B. 
Constitutional convention tabled resolutions and amendatory motion 
re separate schools (6).]

Law of 1871 amended to include penalties for exclusion, intimida­
tion because of race (8) ; compulsory attendance in schools re­
quired, 1883 (9).

1. Stats, c. XXII, §§79-80 (Treat et at. 1858) ; Laws 1865, p. 113, §4.
2. Sixth Biennial Rep. Supt. Pub. Instr., 1865-1866, pp. 27-29; U. S. 

Dept. Educ., Special Rep. Commr. Educ., 1868, p. 343.
3. Ibid,.; Seventh Biennial Rep. Supt. Pub. Instr., 1867-68, pp. 18-21.
4. Const., Art. VIII, § 1 (1870).
5. Laws 1871, § 48.
6. Jour. Const. Conv. 234, 430-431, 860-861 (1870).
7. Ninth Biennial Rep. Supt. Pub. Instr., 1871-1872, p. 116; Rf.i». U. S. 

Commr. Educ., 1873, pp. 79-80.
8. Rev. Stats. 1874, c. 122 §§ 100-102.
9. Laws 1883, § 1, p. 167.

10. Chase v. Stephenson, 71 111. 383 (1874) ; People e x  ret. Congress v. Board 
o f Education, 101 111. 308 (1882) ; People ex  rcl. Peair v. Board o f  Edu­
cation, 127 111. 613 (1889).

11. Biennial Rep. Supt. III. Pub. Instr., 1873-1874, pp. 43-50, 259-353; Rep. 
U. S. Commr. Educ., 1874, p. 82.

Practices Negro children generally denied education except in cities and 
large towns; integration in Chicago schools reported to work suc­
cessfully (2).

State responsibility for education of Negroes not recognized; 
State Teachers’ Ass’n appealed for repeal of discriminatory laws; 
state superintendent appealed for state-supported education for 
Negroes (3).

State superintendent reports segregation, exclusion, practiced con­
trary to law in many instances (7).

Courts refused to give sanction to separate schools after 1874 (10) ; 
majority of counties reported integration in process or achieved (11).



INDIANA, IOWA, KANSAS, KENTUCKY AND MAINE

STATUTES AND PRACTICES RELATING TO THE EDUCATION OF THE RACES PRECEDING AND FOLLOWING ADOPTION OF THE 14TH AMENDMENT

State State Policy as of June 16, 1866 State Policy as of July 28, 1868
State Policy Effective Immediately Following 

Adoption of the 14th Amendment Subsequent Educational Developments to 1885 References
Indiana

Statutes

Practices

Public school system provided; white children enumerated; Negroes 
exempted from school tax levy (1).

Negro children not admitted to white schools; state responsibility 
for education of Negro children not recognized (2).

No change in provisions with respect to education of the races. Segregated schools established; Negroes permitted to attend white 
schools where separate schools could not be maintained (4).

Segregated schools authorized; admission of Negroes to primary 
and secondary schools for whites required where separate facilities 
did not exist (6).

No material change in practices. Negroes taxed to support white Segregated schools established; Negro children in under-populated 
schools and forced to tax themselves to build and maintain schools areas deprived of educational advantages (5). 
for their children (3).

State superintendent appealed for abolition of discriminatory school 
laws (7) ; Negroes integrated into schools for whites in many 
instances by common consent (8) ; judicial support of compulsory 
segregation (9) emasculated by legislature, 1877. Court ruled 
segregated schools not mandatory, 1883 (10).

1. Laws 1865, Act of March 6, 1865.
2. Rep. Supt. Pub. Instr. State of Indiana, 1866, pp. 49-51; U, S. Dept. 

Educ., Special Rep. Commr. Educ., 1868, pp. 344-345.
3. Rep. U. S. Commr. Educ., 1870, p. 123.
4. Laws 1869, p. 41.
5. Rep. U. S. Commr. Educ., 1871, p. 151.
6. Laws 1877, p. 124.
7. Rep. U. S. Commr. Educ., 1872, p. 109.
8. Rep. U. S. Commr. Educ., 1873, p. 100.
9. Cory v. Carter, 48 Ind. 327 (1874).

10. State v. Grubbs, 85 Ind. 213 (1883).

Iowa
Statutes Public school system provided; no reference to race (1). No change in general provisions. Same. Same.

Practices Early statutes required separate schools unless parents of white 
children gave unanimous consent (2) ; Iowa courts ruled restrictive 
provisions unconstitutional (2) ; schools of Iowa City opened to 
Negroes after 1855 (4).

Iowa schools, with few exceptions (5), opened to all youth without 
regard to race or color (6).

Courts denied right of school boards to discriminate (7). “By 
sundry amendments to [the] State constitution , . . adopted . . . 
on the 3rd of November, 1868, . . .  a man’s rights and privileges 
are no longer determined by the color of his skin. Colored citizens 
. . . are entitled to the benefits of our public school system on the 
same footing with white citizens.” (8)

No change in practices (9)

1. Acts 1866, c. 143, §3.
2. Laws 1858, c. 52, §30(4).
3. Dist. Township of the City of Dubuque v. City of Dubuque, 7 Iowa 262 

(1858).
4. Iowa City Republican, Sept. 18, 1867, p. 2.
5. Des Moines Iowa State Register, Jan. 29', 1868, p. 1; ibid., Feb. 19, 1868,

p. 1.
6. Oskaloosa Herald, Jan. 23, 1868, p. 1.
7. Clark v. Board of Directors, 24 Iowa 26 (1868).
8. U. S. Dept. Educ., Special Rep. Commr. Educ., 1871, p. 345.
9. Smith v. Dir. of Ind. School Dist. of Keokuk, 40 Iowa 518 (1875) ; 

Dove v. Ind. School Dist. of Keokuk, 41 Iowa 689 (1875).

K ansas Series of statutes provided permissive segregation for urban and 
Statutes non-urban areas (1). [N. B. Compulsory segregation laws of 1862, 

1863, replaced by statute permitting but not requiring segrega­
tion (2).]

Exclusion of any children from common schools prohibited (3) ; 
permissive segregation statutes reenacted (4).

Compulsory school attendance required (6) ; civil rights act banned 
distinction because of race, color, in any public schools (7) ; laws of 
1876 prohibited segregation in cities of the second class and omitted 
authorization of segregation for cities of the first class (8).

Segregation in schools reenacted for cities of the first class, recog­
nized as discrimination (9).

1. Gen. Stats. 1868, c. 92, § 19; Laws 1865, c. 46.
2. Gen. Laws 1862, c. 46, Art. 4 §§ 18-19; Gen. Laws 1863. c. 56, § 5.
3. Laws 1867, c. 125, § 1.
4. Gen. Stats. 1868, c. 18, Art. 5, § 75; c. 19, Art. 5, § 58.
5. Sixth A nn . Rep. Supt. Pub. Instr., 1868, pp. 3-4.
6. Laws 1874, c. CXXIII, p. 194.
7. Laws 1874, c. XLIX, p. 82.
8. Laws 1876, c. CXXII, Art. XI, §2.
9. Laws 1879, c. LXXXI, § 1.

10. Knox v. Bd. of Educ. of Independence, 45 Kan. 152 (1891) ; Bd. of Educ. 
v. Tinnon, 26 Kan. 1 (1881).

Practices Negroes attended segregated schools. Permissive segregation; state superintendent reported that highest 
institutions of state were open to Negroes and appealed for com­
plete integration in common schools (5),

No material change in practices. Instances of attempts to segregate without authorization by law 
known after 1880 but courts refused to sanction these acts (10).

Kentucky Taxes collected from Negroes to be set apart as a fund for their 
Statutes use; one-half, if necessary, for support of Negro paupers, the 

remainder for the education of Negro children (1).

Provisions with respect to taxes from Negroes reenacted (2). No change in provisions with respect to education of the races. Schools for Negroes to be established from sundry taxes imposed 
upon them (5). Discriminatory features of separate tax levies 
acknowledged, unified school fund decreed from which pupils of both 
races would draw proportionate shares (6).

1. Laws 1866, c. 636, p. 51.
2. Laws 1867, c. 1913 (March 9, 1867).
3. Rep. U. S. Commr. Educ., 1870, p. 147.
4. Ibid.
5. Laws 1873-74, c. 521, §§1-3.
6. Laws 1881-82, c. 1421 (April 24, 1882).
7. Rep. U. S. Commr. Educ., 1871, pp, 12, 185.
8. Rep. U. S. Commr. Educ., 1872, p. 126; 1873, p. 125.
9. Dabney, U niversal Education in the South 278-79 (1936).

Practices Education of Negroes privately supported (2). No change in practices. Negroes requested law to tax themselves to provide children with 
schools (3). “The law which merely provides that colored schools 
may be taught is generally ignored and money collected of 
colored people for school purposes applied to the support of 
paupers. . . .” (4).

Legislative sentiment adverse to policy of educating Negro citizens 
(7). Attitude of state superintendent, an opponent of use of 
“white” funds for Negro schools (8) reflected in Act of 1874. 
Influence of successor reflected in law of 1882 (9).

Maine
Statutes System of public schools established; no reference to race (1). No change in provisions with respect to education of the races. No change in provisions with respect to education of the races. Compulsory school attendance required (4).

1. Acts & Res. 1865, c. 304, § 1.
2. Chadbourne, A History of Education in Maine (1936).
3. U. S. Dept. Educ., Special Rep. Commr. Educ., 1868, p. 353.
4. Laws 1875, c. 24, § 1.Practices No racial segregation in schools prior to the adoption of 14th 

Amendment (2).
No change in practices. “ . . . the common school is open to all children for which it was 

established.” (3)
No change in practices.



STATUTES AND PRACTICES RELATING TO THE EDUCATION O F THE R A C E S  PRECEDING AND FOLLOWING A D O P T IO N  OF T H E  14TH  A M E N D M E N T
MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSOURI AND NEVADA

State State Policy as of June 16, 1866 State Policy as of July 28, 1868
State Policy Effective Immediately Following 

Adoption of the 14th Amendment Subsequent Educational Developments to 1885 References
Maryland

Statutes
White children provided free instruction in any public school; 
Negro school taxes to be set aside for purpose of establishing 
Negro schools (1).

No change in provisions with respect to education of the races.

Practices Endeavors of interracial cooperation, benevolent organizations, 
resulted in establishment of 73 schools for Negro children through­
out state despite lack of state support (2).

No material change in practices.

No change in provisions with respect to education of the races.

No change in practices. State made no effective provision for 
education of Negro citizens; schools outside of Baltimore depend­
ent on private efforts (3).

Provisions for the establishment of free schools for Negroes in 
every election district, to be run and governed in the same manner 
as schools for white children, 1872 ( 4) ; substantially unchanged, 
1878 (5).

Efforts to supplement money raised for support of Negro schools 
with state funds ineffective. Local boards appropriated money for 
needs of white schools; Negro children received meagre educa­
tion (6).

1. Laws 1865, c. 160, tit. misc,, c. 1, § 1.
2. Rep. U. S. Commr. Educ., 1870, p. 157.
3. Rep. U. S. Commr. Educ., 1871, p. 10.
4. Laws 1872, C. 377, c. XVIII, § 1.
5. Rev. Code 1878, Art. 27, §§ 95-98.
6. Rep. U. S. Commr. Educ., 1872, p. 150.

Massachusetts Compulsory school attendance required, 1852. Public schools opened 
Statutes to all without discrimination because of race, color, religion; viola­

tors punished, 1855; reenacted, 1860 (1).

No change in provisions with respect to education of the races. Same. Same. 1. Gen. Stats. 1860, c. 41, § 1; Acts and Resolves 1854-55 , c. 256, §§ 1, 2.
2. Roberts v. City of Boston, 5 Cush. 198 (Mass. 1849).
3. Acts & Res. 1854-55, supra n. 1.

Practices Segregated schools existed in state in isolated instances prior to 
1850; court decision upholding separate but equal schools (2) 
resulted in legislation outlawing discrimination in schools (3).

No material change in practices. No change in practices. No change in practices.

Michigan Graded and high schools established, 1859 (1). 
Statutes

All residents given equal right to attend any school in district (5). Compulsory school attendance required (8) ; all residents given 
equal right to attend any school in district and no separate schools 
could be kept on account of race or color (9).

Ban on segregated schools strengthened, 1881 (10). 1. Laws 1859, No. 161, pp. 446-48.
2. W oodson, Education of the Negro Prior to 1861 335 (1915).
3. Laws 1850, Act No. 197, p. 201.
4. See People ex rel. Workman v. Bd. of Educ,, 18 Mich. 400 (1869).
5. 1 Laws 1867, No. 34, § 28.
6. People ex rel. Workman, supra n. 4.
7. Rep. U. S. Commr. Educ., 1870, p. 188.
8. 1 Gen. Acts 1871, No. 165, § 1.
9. 1 Laws 1871, No. 170, § 28.

10. Acts 1881, No. 164, c. Ill, § 18.

Practices Most Michigan public schools integrated by 1850 (2), though 
segregated schools did exist before Civil War (3) ; those in Detroit 
and Jackson the result of special statutes granting large cities dis­
cretionary power to regulate distribution of children (4).

Law of 1867 held to repeal statute which might previously have 
been construed to authorize Detroit school board to segregate (6) ; 
segregation in Detroit schools abolished (7).

No material change in practices. No known instances of segregated schools.

M innesota Expulsion from schools by reason of race, caste, nationality, pro- 
Statutes hibited, 1862; violators fined, 1864 (1).

No change with respect to provisions for education of the races. No change in provisions with respect to education of the races. Separate classification in schools or departments of schools on 
account of race or color prohibited (2) ; compulsory school attend­
ance required, 1885 (3).

1. Laws 1862, c. 1, § 33; Gen. Stats. 1866, c. XXXVI, § 33.
2. Laws 1873, c. 1, § 47.
3. Laws 1885, c. 197, § 1.

Practices Apparently no separation in the public schools. No material change in practices. No material change in practices. No material change in practices.

M issouri Exclusionary statutes repealed and separate schools ordered for 
Statutes the education of the races in district schools (1) ; constitution 

authorized establishment of separate schools (2).

School boards required to provide separate schools where Negro 
students number 15 or more. Fewer to be educated as the boards 
decreed; where local boards failed, state superintendent authorized 
to provide schools for Negroes (4).

Consolidation of two school districts permitted to provide for 
education of Negroes where Negro population remained sparse (6).

Separate schools for Negroes, originally provided for in constitu­
tion of 1865, required, 1875 (8).

1. Laws 1864, §2, p. 126.
2. Const., 1865, Art. IX, §§ 1, 2, 7.
3. Rev. Stats. 1856, p. 1100.
4. Laws 1868, §§ 24-25, p. 170.
5. Rep. U. S. Commr. Educ., 1867-68, p. 108; Rep. Missouri Public Schools, 

1865-68, pp. 10-11.
6. Laws 1869, p. 86.
7. Rep. U. S. Commr. Educ., 1870, p. 202.
8. Const., 1875, Art. XI, §§ 1, 3.
9. Rep. U. S. Commr. Educ., 1872, p. 207.

10. Rep. U. S. Commr. Educ., 1873, p. 222; Rep. U, S. Commr. Educ., 1874, 
p. 238.

Practices Negroes excluded from public schools prior to Civil War (3). Foundation laid for segregated school system (5). Opposition to education of Negroes less pronounced than for­
merly (7).

Boards failed to provide for the education of Negroes in many 
localities (9) ; state superintendent forced to establish schools in 
many areas; some Negroes completely denied educational oppor­
tunities (10).

Nevada Negroes, Mongolians, Indians expressly barred from public schools; 
Statutes trustees empowered to establish separate schools for non-whites (1).

Punitive features of law of 1865 for school directors failing to 
comply withdrawn (2).

No change in provisions with respect to education of the races. Compulsory school attendance required (5) ; exclusionary features 
of former laws omitted (6).

1. Laws 1864-65, c. CXLV, §§27, 50.
2. Laws 1867, c. LII, §§ 15, 21.
3. Fourth A nn . Rep. Supt. P u b . Instr., 1868, p. 16.
4. Rep. U. S. Commr. Educ., 1870, p. 212.
5. Gen. Stats. 1861-85, §1369, p. 392 (Baiiy and Hammond).
6. 2 Comp. Laws 1873, c. CXII, §3369, p. 267; R ep . U . S . C o m m r , E d u c ., 

1885-86, pp. 124-125.
7. State v. Duffy, 7 Nev. 342 (1872).
8. R ep. U. S. Commr. Educ., 1873, p. 245.

Practices Negroes generally excluded from the public schools. Separate school for Negroes discontinued after six months; policy 
of exclusion continued (3).

No material change in practices. “As few of the colored race are 
able to afford private tuition, we have growing up among us 
juvenile pariahs, condemned by our State to ignorance and its 
attendant vices.” (4)

Statutory exclusion of Negroes declared unconstitutional (7) ; 
Negroes admitted into the public schools. “ . . . the children of 
all citizens are now free to attend our public schools. . . (8).



STATUTES AND PRACTICES RELATING TO THE EDUCATION OF THE RACES PRECEDING AND FOLLOWING ADOPTION OF THE 14TH AMENDMENT

NEW HAMPSHIRE, NEW JERSEY, NEW YORK, OHIO, OREGON AND PENNSYLVANIA

State State Policy as of June 16, 1866 State Policy as of July 28, 1868
State Policy Effective Immediately Following 

Adoption of the 14th Amendment Subsequent Educational Developments to 1885 References
New Hampshire

Statutes System of public schools established; no reference to race (1). No change in provisions with respect to education of the races. Same. Compulsory school attendance required, 1871 (2).
1. Laws 1866, c. 4255, p. 3275.
2. Laws 1871, c. II, p. 511.

Practices No apparent history of segregated schools. No change in practices. No change in practices. No change in practices.

New Jersey Public schools established (1) ; special law authorized separate 
Statutes schools in Morris County (2).

No change in provisions with respect to the education of the races. Same. Compulsory school attendance required, 1874 (5) ; no child to be 
excluded from any public school on account of religion, nationality 
or color; violators punished (6).

1. Rev. Stats. 1847, tit. XII, c. 3.
2. Laws 1850, p. 63.
3. A nnual Rep. Supt. P ub. Schools, 1863, pp. 41-42.
4. Ibid,
5. Laws 1874, c. DXXIII.
6. Laws 1881, c. CXLIX (March 23, 1881).
7. Pierce v. Union Dist. School Trustees, 46 N. J. L. 76 (1884).

Practices State superintendent construed existing laws as allowing communi­
ties the option of segregating Negro students (3).

Separate schools maintained in some communities; mixed schools 
the general rule (4).

No material change in practices. Ban on segregation in the schools supported by courts (7) ; effec­
tiveness of statute weakened in areas where Negroes accepted 
separation; integrated schools elsewhere.

New Y ork 
Statutes

City and incorporated village school authorities granted option of 
establishing separate schools (1).

No change in provisions with respect to the education of the races. Same.

Practices Few communities exercised option to segregate Negro students (2). No material change in practices. No material change in practices.

Exclusion by reason of race, color, on part of teachers and other 
officers of common schools and public institutions of learning, pro­
hibited (3) ; compulsory school attendance required (4).

Buffalo city charter amended (1873) and schools integrated (S) ; 
maintenance of segregated schools upheld under laws of 1873 (6).

1. Laws 1864, c. S55, titl. X, § 1.
2. A nn. Rep. State Supt. Pub. Instr., 1866, pp. 131-323 passim,
3. Laws 1873, c. 186.
4. Laws 1874, c. 421, §1.
5. Rep. U. S. Commr. Educ., 1873, p. 280.
6. People ex rel, King v. Gallagher, 92 N. Y. 438 (1883).

Ohio
Statutes

Segregated schools required in districts where Negro students 
numbered 20 or more (1).

No change in provisions with respect to education of the races. Same. Compulsory school attendance required, 1877 (5) ; segregation in 
schools made permissive by statute, 1878 (6). [N.B. Ohio abol­
ished segregated schools in 1887 (7).]

Practices Though not so entitled, Negroes often admitted to white schools
(2) .

Negroes generally admitted to white schools in many parts of the 
state (3).

No apparent change in practices (4). Segregated schools, where maintained, held not to violate law (8). 
[N.B. Courts upheld prohibition of segregation in public schools

1. 61 Laws 1864, pp. 32-33.
2. Rep. Opiio Dept. Educ., 1865, pp. 529-533.
3. Rep. U. S. Commr. Educ., 1871, p. 370.
4. Rep. Ohio Dept. Educ., 1871, pp. 663-64; Ohio School Rep. 1875, pp. 26-28.
5. Gen. Laws 1877, §1, pp. 57-58.
6. Laws 1878, p. 513.
7. Laws 1887, p. 34.
8. State ex rel. Games v. McCann, 21 Ohio St. 198 (1871).
9. State ex rel. Gibson v. Bd. of Educ., 2 Ohio Cir. Ct, Rep. 557 (1887).

Oregon
Statutes

Public schools free to all persons in school district (1). No change in provisions with respect to education of the races. Same. Same.

Practices Negroes admitted to public schools except in Portland. Separate school for Negroes in Portland (2). Portland separate school abolished, 1871 (3). No material change in practices.

1. Laws 1845-64, c. 5, tit. IV, § 46, p. 511.
2. Reynolds, Portland Public Schools, 33 Ore. H ist. Q. 344 (1932).
3. Ibid.

Pennsylvania
Statutes

Segregated schools required where number of Negro students was 
20 or more; Negroes could not apply to white schools if separate 
one was maintained 4 months in year (1).

No change in provisions with respect to education of the races.

' ' ' r UMHjl fit (Jiff

Same. Pittsburgh’s authority to segregate Negroes rescinded, 1871 (3) ; 
constitution provided for education of all children, imposing no 
restrictions (4) ; no distinction made in attendance or admission to 
any public school because of race or color (5).

Practices Separate schools established in many areas. Negro pupils admitted to white schools when separate ones were 
not provided (2).

No material change in practices. Statute judicially declared harmonious with spirit and object of 
14th Amendment (6).

1. Laws 1854, No. 610, §§23, 24.
2. Rep. Indiana Dept. Pub. Instr., 1867-68, pp. 23-28.
3. Laws 1872, No. 999, p. 1048.
4. Const., Art. X, § 1 (1874).
5. Laws 1881, No. 83, p. 76.
6. Kaine v. Commonwealth, 101 Pa. 490 (1882).



STATUTES AND PRACTICES RELATING TO THE EDUCATION OF THE RACES PRECEDING AND FOLLOWING ADOPTION OF THE 14TH AMENDMENT

RHODE ISLAND, VERMONT, WEST VIRGINIA AND WISCONSIN

State State Policy as of June 16, 1866 State Policy as of July 28, 1868 State Policy Effective Immediately Following 
Adoption of the 14th Amendment Subsequent Educational Developments to 1885 ReferencesRhode Island No distinction made in applicants to public schools on account of 

Statutes race or color (1). No change in provisions with respect to education of the races. Same. Provisions of law of 1866 expanded (4) ; compulsory attendance 
required, 1883 (5). 1. Acts 1866, c. 609, p, 225.

2. Carroll, Public Education in Rhode Island 157-8 (1918).
3. Ammons v. School District No. 5, 7 R. I. 596 (1864)
4. Gen. Stats. 1872, c. 58, § 1.
5. Laws 1882-1885, c. 363, § 1.
6. Rep. Indiana Dept. Pub. Instr., 1867-68, pp. 23-28.

Practices Some major cities established separate schools in early 1830’s (2) ;
constitutional provision (1842) assumed to permit segregation (3) ; 
integration achieved (1866), terminating legislative differences of 
several years.

No segregated schools. No change in practices. “The colored child is admitted free . . . into all our public schools 
of every grade in accordance with justice and an enlightened public 
sentiment.” (6)

Vermont School clerk required to list children resident in his district; no 
Statutes mention of race (1). Compulsory school attendance required (3). No change in provisions with respect to education of the races. Same. 1. Gen. Stats. 1862 (App, to 1870), p. 883.

2. Rep. Indiana Dept. Pub. Instr., 1867-68, pp. 23-28.
3. Laws 1867, No. 35, p. 47.

Practices No distinctions based on race or color (2). No change in practices. No change in practices. No change in practices.

West Virginia Integration prohibited ; separate schools where districts had 30 or 
Statutes more Negro students in order to provide Negroes with educational 

opportunities “as far as practicable.”  (1) No change in provisions with respect to education of the races.
Same. Education laws reenacted with substantially identical provisions

(2) ; constitution altered to require segregation in public schools
(3) ; subsequent legislatures attempted to reduce unequal provisions 
for education of Negroes by reducing numbers requisite for estab­
lishment of separate schools (4).

1. Laws 1866, c. 74, § 26.
2. Acts 1871, c. 152, p. 206.
3. Const. 1872, Art. XII, §§ 1, 8.
4. Laws 1872, c. 123, p. 391; Acts 1881, c. 15, § 17, p. 176.
5. Rep. U. S. Commr. Educ., 1874, pp. 439-40.

Practices [Status of education for Negroes apparently unrecorded.] [Status of education for Negroes apparently unrecorded.] [Status of education for Negroes apparently unrecorded.] State superintendent reported that Negroes in other than urban 
districts received little or no education (5).

W isconsin
Statutes System of public schools established; no reference to race (1).

[N.B. Effort to discriminate defeated in legislature (1863) (2).]
No change in provisions with respect to education of the races. No material change in laws. Compulsory attendance required, 1879 (4).

1. Laws 1863, c. 155.
2. Ass. J. 618 (1863).
3. Rep. Indiana Dept. Pub. Instr., 1867-68, pp, 23-28.
4. Laws 1879, c. 121, p. 155.

Practices No separation in public schools. “Neither the Constitution nor the Statutes make any difference 
between white and colored children. I do not know of a separate 
school for the latter . . . [nor] one from which they are excluded 
anywhere in this state.” (3)

No material change in practices. No material change in practices.



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