Simmons, Brent, undated - 1 of 3

    SU P RE M E COURT OF THE UNITED STA T E S

OCTOBER TERM, 1952

No. 191

DOROTHY E. DAVIS, BERTHA M. DAVIS a n d  INEZ
D. DAVIS, BTC., ET AL,

VS.
Appellants,

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, e t  a l .

APPEAL FROM THE SXJPBEME COURT OB APPEALS OB THE 
COMMONWEALTH OF VIRGINIA

STATEMENT AS TO JURISDICTION

R obert L. Carter,
Oliver W. H ill,
T hurgood Marshall,
Spottswood W. R obinson, III,

Counsel for Appellants.
Jack Greenberg,
James M. Nabrit,
Jack B. W einstein,

Of Counsel.



TABLE OP CONTENTS

S u b je c t  I n d ex

Page
Statement as to Jurisdiction..........................................  1

Opinion B e lo w ........................................................  1
Jurisdiction ............................................................  2
Questions Presented ............................................. 2
Statutes Involved ................................................... 3
Statement ................................................................  3
Questions Involved Are Substantial...................  4

1. In offering educational facilities and op­
portunities, the state is without power 
under the equal protection and due 
process clauses of the Fourteenth 
Amendment to make distinctions among 
its citizenry based upon race and color. 6

2. Application of the separate school laws
has resulted in continued and unbroken 
discrimination against Negro children 
in Prince Edward County in violation 
of the Fourteenth Amendment............... 12

3. The findings of the court below entitle
appellants to admission at once to the 
superior schools in Prince Edward 
County......................................................  16

4. Equal educational opportunities in fact
cannot be provided under Virginia’s 
separate school laws................................. 19

5. The decree of the court below fails to
grant appellants effective relief from an 
admitted deprivation of their constitu-
tutional rights .....................................  25

Conclusion ......................................................................  29
Appendix A ....................................................................  30
Appendix B ....................................................................  38

—2858



11 INDEX

T able  oe C ases
Page

American Communications Association v. Dowds, 339
U.S. 389 ......................................................................  5

Bailey v. Alabama, 219 U.S. 219...................................  12
Belton et al. v. Gebhart et al., — Del. Ch. —, -— A.

2d —, decided April 11, 1952..................................... 17
Board of Supervisors v. Wilson, 340 U.S. 909...........  4
Briggs v. Elliott, 342 U.S. 350....................................... 32
Carr v. Corning, 182 F.2d 14 (C.A.D.C. 1950)'.......... 28, 32
Camming v. Board of Education, 175 U.S. 528.......... 15, 32
Dominion Hotel v. Arizona, 249 U.S. 285.....................  7
Gonzales v. Sheeley, 96 F.Supp. 1004 (D. Arizona

1951) ....................................................................; 7
Gray v. University of Tennessee, — U.S. —, decided

March 3, 1952 ..............................................................  14
Groessart v. Cleary, 335 U.S. 464.................................  7
Guinn v. United States, 283 U.S. 347...........................  12
Hawkins v. Board of Control, 47 So. 2d 608 and 53 So.

2d 116; cert, denied — U.S. —, Nov. 13, 1951.......... 14
Hirabayashi v. United States, 320 U.S. 81.................  8
Korematsu v. United States, 323 U.S. 214...................  8
McKissick v. Carmichael, 187 F.2d 949 (C.A. 4th

1951) ............................................................................ 24
McLaurin v. Board of Regents, 339 U.S. 637.............  4
Missouri ex rel. Gaines v. Canada, 305 U.S. 337.........  14
Oyama v. California, 332 U.S. 633....................... . 8
Plessy v. Ferguson, 163 U.S. 537................................. 32
Quaker City Cab Co. v. Pennsylvania, 277 U.S.

389 ...............................................................................  7
Scott v. Sanford, 19 How. 393......................................  9
Shelley v. Kraemer, 334 U.S. 1 ..................................... 8
Sipuel v. Board of Regents, 332 U.S. 631.....................  14
Skinner v. Oklahoma, 316 U.S. 535...............................  7
Smith v. Allwright, 321 U.S. 649...................................  20
Strauder v. West Virginia, 100 U.S. 303.....................  6
Swanson v. University of Virginia, (Civil Action

No. 30, W.D.Va. 1950, unreported)...........................  14,15
Sweatt v. Painter, 339 U.S. 629..................................... 4
Takahashi v. Fish <& Game Commisison, 334 U.S.

410 ................................................................................ 8



ISTDEX

Page
United States v. Paramount Pictures, Inc., 334 U.S.

131 ................................................................................ 28
Wolf v. Colorado, 338 U.S. 25......................................... 6
Yick Wo v. Hopkins, 118 U.S. 356................................. 12

S ta tu te s  C ited  

United States Statutes:
Title 28, United States Code, Section 2281.......... 2
Title 28, United States Code, Section 2284........  2
Title 28, United States Code, Section 1253......... 2
Title 28, United States Code, Section 2101(b) . . .  2

State Provisions:
Section 140, Constitution of Virginia of 1902, as

amended ..............................................................  3
Section 22-221, Code of Virginia of 1950, as

amended ............................................................. 2, 3,13
Section 22-251, 22-256, Code of Virginia of 1950, 

as amended........................................................... 6

O t h e r  A u th o r it ie s

American Teachers Association, The Black & White
of Rejections for Military Service (1944).............. 7

Horace M. Bond, The Education of the Negro in the
American Social Order (1934).................................  10

Horace M. Bond, Negro Education in Alabama
(1939) .......................   10

Ralph Bunche, The Political Status of the Negro (Un­
published manuscript, Carnegie-Myrdal study) . . .  9

Clark, Negro Children, Educational Research Bulle­
tin (1923) ....................................................................  7

Henry S. Commager, 1 Documents of American His­
tory (1935) ..................................................................  9

Allison Davis, et ah, Deep South (1941).....................  10
Douglas, Stare Decisis, 49 Col. L. Rev. (1939)............ 20
W.E.B. DuBois, Black Reconstruction (1935)............ 10
Frank and Munro, The Original Understanding of 

‘ Equal Protection of the Laws,’ 50 Col. L. Rev.
(1950) .......................................................................... 19

iii



IV INDEX
Page

E. Franklin Frazier, The Negro in the United States
(1949) ...................................................................................10

Graham, The Early Anti-Slavery Backgrounds of the
14th Amendment, Wis. L. Rev. (1950).....................  19

Klineberg, Race Differences (1935)...............................  7
Klineberg, Negro Intelligence and Selective Migra­

tion (1935) ...........................    7
Paul Lewinson, Race, Class and Party (1932)............. 9
Charles S. Mangum, Legal Status of the Negro

(1940) ......................................................................... 10
Montague, Man’s Most Dangerous Myth— The Fal­

lacy of Race (1945) .................................................. _ 7
Peterson & Lanier, Studies in the Comparative Abili­

ties of Whites and Negroes, Mental Measurement
Monograph (1929) ....................................................  7

Keport of the Proceedings and Debates of the Con­
stitutional Convention, State of Virginia, Rich­
mond, June 12, 1901-June 26, 1902, Hermitage
Press, Inc., 1906, Vol. 1 .................................................  10

Sidney Sutherland, The 14th and 15th and 18th 
Amendments, Liberty Magazine V, No. 16, 10 
(April 21, 1928) ..............................................................  11



IN THE UNITED STATES DISTRICT COURT FDR THE 
FDR THE EASTERN DISTRICT DF VIRGINIA 

RICHMOND DIVISION

CIVIL ACTION NO. 1333

DOROTHY E. DAVIS, BERTHA M. DAVIS and INEZ 
D. DAVIS, I n f a n t s , b y  JOHN DAVIS, T h e ir  F a t h e r  
an d  N e x t  F r ie n d , et  a l .,

vs.
Plaintiffs,

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, an d  T. J. McILWAINE, DIVI­
SION SUPERINTENDENT OF SCHOOLS OF 
PRINCE EDWARD COUNTY, VIRGINIA, et  a l .,

Defendants

STATEMENT AS TO JURISDICTION

In compliance with Rule 12 of the Supreme Court of the 
United States, as amended, plaintiffs-appellants submit 
herewith their statement particularly disclosing the basis 
upon which the Supreme Court has jurisdiction on appeal 
to review the judgment of the district court entered in this 
cause.

Opinion Below

The opinion of the United States District Court for the
Eastern District of Virginia, ------F. Supp.------ , has not
yet been reported and a copy of the opinion, along with the 
final decree, is attached hereto as Appendix “ A .”



2

Jurisdiction

The district court, convened pursuant to Title 28, United 
States Code, Sections 2281 and 2284, entered final judg­
ment on 7 March 1952. A petition for appeal is presented 
to the district court herewith, to wit, on 5 May 1952. Juris­
diction of the Supreme Court to review this judgment by 
direct appeal is conferred by Title 28, United States Code, 
Sections 1253 and 2101(b) and has been sustained by the 
following decisions: McLaurin v. Board of Regents, 339 
U.S. 637; Board of Supervisors v. Wilson, 340 U.S. 909; 
Briggs v. Elliott, 342 U.S. 350.

Questions Presented

1. Whether Sections 140 of the Constitution of Virginia 
of 1902, as amended, and Sections 22-221 of the Code of 
Virginia of 1950, as amended, are invalid and unenforce­
able under the equal protection and due process clauses of 
the Fourteenth Amendment to the Constitution of the 
United States because they mandate segregated public 
secondary schools for colored children in Prince Edward 
County, Virginia, and because they compel infant- 
appellants to attend such segregated schools to their detri­
ment.

2. Whether after finding that the buildings, facilities, 
curricula and means of transportation furnished appellants 
are inferior to those provided for white students, the court 
below was required by the equal protection clause of the 
Fourteenth Amendment to the Constitution of the United 
States to issue a decree restraining appellees forthwith 
from denying appellants admission to the superior state 
facilities solely because of their race and color.

3. Whether in addition to parity in curricula and physi­
cal facilities the constitution guarantees appellants equality



3

in all other educationally. significant factors affecting the 
development of skills, mind, and character.

Statutes Involved

Section 140 of the Constitution of Virginia of 1902, as 
amended, and Section 22-221, Code of Virginia of 1950, as 
amended, are set forth in Appendix “ B ”  hereto.

Statement

Appellants are colored persons defined by law in the 
state of Virginia as a person with “ any”  “ ascertainable”  
Negro blood and are citizens of the state of Virginia and 
of the United States and residents of Prince Edward 
County. They are: (1) children of public school age at­
tending secondary public schools in Prince Edward County; 
and (2) the parents and guardians of these children. Ap­
pellees are state officers charged with the duty and re­
sponsibility of providing, operating and maintaining public 
elementary and secondary schools in Prince Edward 
County, Virginia.

Section 140 of the Constitution of Virginia of 1902, as 
amended, and Section 22-221 of the Code of Virginia of 
1950, as amended, compel appellees to maintain separate 
schools for colored and white children. Appellants are 
seeking to enjoin enforcement of these provisions on the 
grounds that they are in direct conflict with the equal 
protection and due process clauses of the Fourtenth Amend- 
Amendment.

Three public high schools are now in operation in the 
county—the Moton High School for colored children and 
the Worsham and Parmville High Schools for white chil­
dren. The Moton High School has a larger enrollment (Tr. 
37), average daily attendance and average daily member­
ship (Tr. 77) than the combined totals at the other two 
schools.



4

Appellees admitted in their answer and in their opening 
statement that the buildings and equipment of the Negro 
school were inferior to those of the white schools but alleged 
that equal educational opportunities were furnished in all 
other respects, (Tr. 9010). Blueprints of a proposed new 
Negro high school designed to correct the inequalities in 
physical facilities by September 1953 were placed in evi­
dence (Tr. 521-541).

After hearing the evidence, the court below found the 
Moton High School inferior not only in buildings and 
equipment, but also in curricula and means of transporta­
tion as well. Appellees were ordered forthwith to provide 
appellants with curricula and means of transportation 
“ substantially”  equal to that available to white high school 
students. Appellees were also ordered to “ proceed with 
all reasonable diligence and dispatch to remove the in­
equality existing as aforesaid in said buildings and facili­
ties, by building, furnishing and providing a high school 
building and facilities for Negro students, in accordance 
with the program mentioned in said opinion and in the 
testimony on behalf of the defendants herein, or other­
wise . . . ”  (See Appendix “ A ” .) As indicated, according 
to appellees’ testimony, this new high school will not be 
available until September 1953 (Tr. 541).

The court refused either to enjoin enforcement of the 
state constitutional and statutory provisions requiring the 
maintenance of radically segregated schools or to restrain 
appellees from assigning school space in the county on the 
basis of race and color.

Questions Involved Are Substantial

The issues raised in this case are similar to those raised 
in Sweatt v. Painter, 339 U.S. 629; McLaurin v. Board of 
Piegents, 339 U.S. 637; and Board of Supervisors v. Wilson, 
340 U.S. 909. Under the federal constitution, appellants



5

are entitled to equal state educational opportunities. Since 
the Negro high school was found to be inferior in bus 
transportation, curricula, buildings and facilities, appel­
lants are entitled to effective and immediate relief. Such 
relief, we submit, requires the issuance of a decree which 
permits appellants to share now in the superior state 
facilities without regard to their race or color. A  decree 
that does less makes meaningless appellants’ constitutional 
rights to equal educational opportunities.

Moreover, without regard to the present inequality with 
respect to physical facilities, appellants contend that the 
racial barriers and restrictions mandated by the state sep­
arate school laws block the full and complete development 
of their educational potential and make it impossible for 
them to benefit from public education to the same extent 
as white children. Thus by enforcing its invidious racial 
classifications and distinctions among children of public 
school age in Prince Edward County, as well as by fur­
nishing appellants inferior physical facilities because of 
race, the state violates the Fourteenth Amendment.

This is not only a local problem but is a question with 
both national and international implications. The full 
development of human resources of this country are 
certainly as important to the nation and the world as the 
full development of our natural resources, such as steel, 
aluminum, coal and oil. As Mr. Justice Jackson said in 
American Communications Association v. Douds, 339 U.S. 
383, 442: ‘ ‘ Thoughtful, bold and independent minds are 
essential to wise and considered self-government.”  Inso­
far as a majority of the public school population in Prince 
Edward County is retarded in the full development of its 
mental resources, the state of Virginia and the United 
States are weakened in their efforts to develop that strong, 
enlightened citizenry essential to the preservation of our 
democratic institutions.



6

1. In offering educational facilities and opportunities, 
the state is without power under the equal protection and 
due process clauses of the Fourteenth Amendment to make 
distinctions among its citizenry based upon race and color.

Sections 22-251 to 22-256 of the Code of Virginia of 1950, 
as amended, require that all children between the ages of 
7 and 16 attend public school or receive instruction in pri­
vate schools. The state provides free public elementary and 
secondary education. Negro children, whose parents object 
to their attending racially segregated schools, must seek 
their education in states where racial segregation is not 
practiced. To most there is, therefore, no practicable alter­
native to attending the segregated public schools.

While appellants have no abstract or natural right to a 
public school education, as Mr. Justice Frankfurter noted 
in his concurring opinion in American Communications 
Association v. Bonds, supra at 417, the government is under 
no obligation to furnish any public facilities, but once it 
does it cannot make its facilities “ available in an obviously 
arbitrary manner nor exact surrender of freedoms unre­
lated to the facilities.”  In this case, the state tells appel­
lants that they must attend school, but if they choose to 
attend the schools which the state maintains, they must 
attend the segregated Moton High School solely because 
they are Negroes.

The Fourteenth Amendment was designed to secure full 
and equal citizenship rights for Negroes; it made freedom 
from state action based upon race or color fundamental to 
our way of life Strauder v. West Virginia, 100 U.S. 303. 
Protection of this freedom is secured by due process which 
is “ the compendious expression for all those rights which 
courts must enforce because they are basic to our free 
society . . . ”  Wolf v. Colorado, 338 U.S. 25, 27. In requiring 
appellants to attend specially designated public schools 
solely because of their color, the state denies to them the



7

enjoyment of a freedom and liberty which they would 
otherwise have except for the fact that they are Negroes. 
In the infringement of this freedom, the state has further 
magnified the harm to which appellants are subjected by 
requiring them to attend inferior schools and to receive 
inferior educational advantages.

As to equal protection, it must be conceded that a state 
may classify its citizenry to accomplish some legitimate 
governmental objective Dominion Hotel v. Arizona, 249 
U.S. 265; Groessart v. Cleary, 335 U.S. 464. The classifi­
cation, however, must be based upon some real difference 
pertinent to a lawful legislative end. Quaker City Cab Co. 
v. Pennsylvania, 277 U.S. 389; Skinner v. Oklahoma, 316 
TJ.S. 535. Admittedly the only difference between appellants 
and white public school children is a difference of race and 
color, and this cannot be considered a difference in the con­
stitutional sense.

The state has not attempted to show, nor can it show, that 
this separation is based upon inherent differences between 
appellants and white children in the county because of 
their racial origin.1 There is not even here the question 
of language differences upon which Arizona unsuccessfully 
sought to sustain the segregation of children of Mexican 
descent. Gonzales v. Skeeley, 96 F. Supp. 1004 (D. Ari­
zona, 1951). As the court declared at 1008, 1009:

“ Segregation of school children in public school 
buildings because of racial or national origin . . . consti­
tutes a denial of equal protection of the laws as guaran­
teed . . .  by the provisions of the Fourteenth Amend­
ment to the Constitution of the United States.”

1 Montague, Man’s Most Dangerous Myth— The Fallacy of Race, 188 
(1945) ; American Teachers Association, The Black & White of Rejec­
tions for Military Service 5 at 29 (1944) ; Klineberg, Negro Intelligence 
and Selective Migration (1935); Peterson & Lanier, Studies in the Com­
parative Abilities of Whites and Negroes, Mental Measurement Mono­
graph (1929) ; Clark, Negro Children, Educational Research Bulletin 
(1923); Klineberg, Race Differences 343 (1935).



8

The purposes of public education in Virginia, defined in 
its official pronouncements, is to develop fundamental skills, 
provide experience for emotional, moral and social develop­
ment, develop good citizenship in a democracy, provide 
studies appropriate to the child’s needs and aptitudes, pre­
pare students for occupations and college and serve adults 
by providing facilities needed as they attempt to solve the 
problems of life (Tr. 46-47). There is no rational con­
nection between these aims and racial segregation. Thus 
the separate school laws not only fail to satisfy the con­
stitutional requirements of due process, but also equal 
protection of the laws. They are, therefore, invalid under 
both provisions.

Indeed, we take the unqualified position that the Four­
teenth Amendment has totally stripped the state of power 
to make race and color the basis for governmental action. 
See Skinner v. Oklahoma, supra, at 541. While an excep­
tion may be made with respect to the federal government 
in a grave national emergency, Hirabayashi v. United 
States, 320 U. S. 81; Korematsu v. United States, 323 U. S. 
214, no state can show any such overriding necessity which 
would warrant sustaining state action founded upon these 
constitutionally irrelevant and arbitrary considerations. 
See Oyama v. California, 332 U. S. 633; Takahashi v. Fish 
and Game Commission, 334 IT.S. 410; Shelley v. Kraemer, 
334 IT. S. 1. For this reason alone, we submit, the state 
separate school laws in this case must fall.

In our view, the law also violates the privileges and im­
munities clause of the Fourteenth Amendment. Under that 
Amendment a privilege and immunity incident to national 
citizenship is freedom from governmental restrictions 
founded upon race.

Appellants contend further that the state separate school 
laws are motivated by racial prejudice and are based upon



9

a belief in the inherent inferiority of the Negro directly 
flowing from his racial origin and that they are invalid for 
this additional reason. Cf. Korematsu v. United States, 
supra, at 216; Oyarna v. California, supra, at 646; and see 
concurring opinion of Mr. Justice Murphy in Takahashi v. 
California, supra, at 412, 427.

The court below concluded that the state school segre­
gation laws are not the result of racial animosity or an­
tipathy, but declare “ one of the ways of life in Virginia”  
and are “ a part of the mores of her people.”  ''See Appen­
dix “ A ” .) The available historical evidence does not sus­
tain these conclusions. Doubts concerning the status of 
the free Negro prior to the Civil War were resolved by the 
Dred Scott decision which expressly decided that a Negro 
had no citizenship rights equal to those enjoyed by a white 
person.2 After the Civil War the Negro was affirmatively 
granted full and equal citizenship by the Thirteenth and 
Fourteenth Amendments, and the legal basis for racial 
distinctions inherent in the institution of slavery was de­
stroyed. The white South, however, not content with this 
constitutional change, immediately undertook to reestablish 
the Negro status to accord with the ante-bellum philosophy 
expressed in the Dred Scott decision.

These attempts were first manifested in the Black Codes 
(1865-1866) which in many instances permitted the effec­
tive reestablishment of slavery through the apprenticeship 
system.3 Subordination of the Negro was temporarily re­
strained by Congress but between 1870-1871 gained momen­
tum in North Carolina, Virginia and Georgia4 and through­
out the South after the Presidential election of 1877.5

2 Scott v. Sandford, 19 How. 393.
3 Henry S. Commager, 1 Documents of American History 5 (1935); 

Paul Lewinson, Race, Class and Party, 34 (1932).
4 Bunche, The Political Status of the Negro, 1, 230 (Unpublished manu­

script, Carnegie-Myrdal study.)
B Bunche, op. cit. supra note 5 at 230-233,



10

Implicit in the plan to relegate the Negro to a subordinate 
political, economic and social status was the separate school 
system. There was determined resistance to any public 
education whatsoever for the Negro, and where public edu­
cation was provided, there was resistance to affording such 
education in mixed schools. Mixed education was in fact 
undertaken in Louisiana and South Carolina, but proponents 
of mixed schools were- persuaded that abandonment of 
mixed schools woplft help the cause of public education 
throughout the- South.6

The records of the southern state constitutional conven­
tion, 1890-1910, reveal that segregation was looked upon 
js 'a  means of giving the Negro as little education as possible 
and of assuring the progress of white education unham­
pered by the economic burden of Negro education.7 Equality 
under segregation in education was never intended, and 
certainly has never been achieved.8

At the Constitutional Convention for the state of Vir­
ginia, 1901-1902, devices were specifically sought which 
would give the Negro as little education as possible,9 and to

6 Horace M. Bond, The Education of the Negro in the American Social 
Order, 37-57 (1934).

7 E. Franklin Frazier, The Negro in the United States, 421-427 (1949).
8 Charles S. Mangum, Legal Status of the Negro, 132-133 (1940); 

W. E. B. DuBois, Black Reconstruction, 642-677 (1935) ; Allison Davis, 
et al., Deep South, 240, 417-419 (1941) ; H. M. Bond, Negro Education in 
Alabama, 190 (1939).

8 Report of the Proceedings and Debates of the Constitutional Conven­
tion, State of Virginia, Richmond, June 12, 1901-June 26, 1902, Hermitage 
Press, Inc., 1906. In the debate over a resolution that state funds for 
schools must be used to maintain primary schools for four months before 
these funds could be used for establishment of schools of higher grades, 
the following exchange took place. See Vol. 1, p. 1677:
Mr, Turnbull:

“ Might not the effect of this provision be to tend to prevent the estab­
lishment of schools in sections of the country where it ought to be 
prevented?”
Mr. Glass:

“ I do not think so. Those matters were discussed. The committee dis­
cussed this provision perhaps more earnestly and longer than any other



11

make certain that he remained in an inferior position. The 
late Senator Carter Glass, who was a delegate at the Con­
vention, took a relatively moderate position. During the 
course of the debates he stated:10

“ Discrimination! . . . that is precisely what we pro­
pose ; that, exactly, is what this convention was elected 
for—to discriminate to the very extremity of permis­
sible action under the limitations of the Federal Con­
stitution, with a view to the elimination of every Negro 
voter who can be gotten rid of, legally, without mate­
rially impairing the numerical strength of the white 
electorate. ’ ’

As late as 1928, in commenting upon the Fourteenth and 
Fifteenth Amendments and the South, Walter F. George of 
Georgia—now Senator—declared :u

“ No statutory law, no organic law, no military law, 
supersedes the law of racial necessity and social iden­
tity.

“ Why apologize or evade? We have been, very care­
ful to obey the letter of the Federal Constitution—but 
we have been very diligent and astute in violating the 
spirit of such amendments and such statutes as would 
lead the Negro to believe himself the equal of a white 
man. ’ ’

Thus, it is clear that the purpose and intent of Virginia’s 
separate school laws was to avoid according to Negroes 
the full citizenship rights which the Fourteenth Amendment

provision contained in this report; and as I have said, it was a discussion 
to this very demand— certainly in my judgment a very reasonable demand 
—that the white people of the black sections of Virginia should be per­
mitted to tax themselves, and after a certain point had been passed, 
which would safeguard the poorer classes of those communities, divert 
that fund to the exclusive use of the white children, and I do not think 
we ought to go beyond that point.”

10 Lewinson, op. cit. supra, at 86.
11 Sidney Sutherland, “ The 14th, 15th and 18th Amendments,” Liberty 

Magazine, V, No. 16,10 (April 21, 1928).



12

was designed to secure. On this basis alone, we submit, 
these laws should be struck down.

In summation, appellants contend that these state laws 
violate due process, deny the equal protection of the laws, 
abridge a privilege and immunity of national citizenship, 
exceed the permissible limits of state power and are moti­
vated by racial prejudice. For each and all of these reasons, 
we submit, the laws must fall.

2. Application of the separate school laws has resulted 
in continued and unbroken discrimination against Negro 
children in Prince Edward County in violation of the 
Fourteenth Amendment.

Even assuming that Virginia had a proper motive in 
the enactment of its separate school laws, an examination 
of the natural and actual effect of these laws—which is 
clearly relevant to a determination of constitutionality, 
Bailey v. Alabama, 219 U. S. 219; Guinn v. United States, 
283 U. S. 347; Yiclt Wo v. Hopkins, 118 U. S. 356—discloses 
that in Prince Edward County public educational facilities 
for Negroes are inferior to those available for white chil­
dren and that this condition has existed for a continuous 
period of at least thirty-four years. The present Super­
intendent of Schools of Prince Edward County took office 
in 1918 and has held the position ever since (Tr. 638-639). 
Although a high school for white children was available 
when he took office, no high school facility of any sort was 
open to Negroes until 1927-1928 when a combination ele­
mentary-high school was erected; no accredited high school 
was available until 1931; in 1924-25, public school bus trans­
portation was made available for whites, but it was not 
until 1938 that such transportation was offered to Negroes 
(Tr. 639-642). Discrimination in salary between teachers 
in the white schools and teachers in the Negro schools was 
in effect in 1918, and no steps were made to end this



13

practice until 1940 (Tr. 645-646). At no time during the 
thirty-four year period in the regime of the present Super­
intendent have physical school facilities for Negroes been 
equal to those available for white children. These are 
the undisputed facts.

The inequality which existed when the present Super­
intendent took office necessarily predated 1918. It is, there­
fore, fair to conclude that educational opportunities for 
Negroes have never been equal to those for white children 
in Prince Edward County under the separate school laws.

The present Superintendent knew that school facilities for 
Negro children were inferior when he took office in 1918. 
The present school board knew of the dissatisfaction among 
Negro citizens with conditions at the Moton High School 
at least as long ago as December of 1947 (Tr. 463). The 
school board even ordered a school survey which was 
completed in 1948 (Tr. 464-465), yet no affirmative steps 
were taken to remedy this discrimination until after the 
present law suit was filed in 1951.

Section 22-221 of the State Code, which has been in force 
since 1869-70, provides that the separate schools be under 
the “ same general regulations as to management, useful­
ness and efficiency.”  If this provision is interpreted as 
requiring equality, it has been ignored as scrupulously as 
the requirement for separation has been observed.

While it may be true, as the district court pointed out, 
that separate schools have been “ one of the ways of life 
of Virginia,”  systematic and deliberate discrimination 
against Negroes has been its inevitable result in Prince 
Edward County.12 Appellants are seeking to modify that

12 Nor does the situation in Prince Edward County differ materially in 
this regard from that in the rest of the state. The opinion of the district 
court indicates that in a large number of counties and cities in Virginia 
the schools and facilities for Negroes are equal and superior to those



14

way of life so that it will conform with the requirements 
of the Fourteenth Amendment.

The records of this Court disclose beyond cavil that the 
“ separate but equal”  doctrine has not provided equal edu­
cational opportunities consistent with the demands of the 
federal Constitution. In 1938, this Court held that a state 
had to provide equal legal facilities for Negro applicants 
within the state or admit them to the state university de­
spite segregation laws. Missouri ex rel Gaines v. Canada, 
305 U. S. 337. This decision gave notice to all that states 
could not provide legal training without making provi­
sions for training of Negro applicants on the same basis. 
Yet, ten years later Oklahoma was still attempting to do 
just that. Sipuel v. Board of Regents, 332 U. S. 631. Until 
the case of Sweatt v. Painter, supra, had been in the state 
court for about a year, no law school other than the Uni­
versity of Texas was available. In Hawkins v. Board of 
Control, 47 So. 2d 608 and 53 So. 2d 116 (Fla.) ; cert. den.

U. S. , November 13, 1951, for want of final judg­
ment, and in Gray v. University of Tennessee, U. S. , 
decided March 3, 1952, the only law schools available were 
at the state universities to which Negroes had been denied 
admission. In Virginia, a court decree in Swanson v. U n ­
available for white children. There is nothing in the record to justify this 
broad conclusion.

Uncontroverted testimony was introduced to establish those facts only 
with respect to high school buildings (Tr. 545-547), but that evidence 
is not a sufficient basis for the court’s unqualified statement.

As a matter of fact, the Annual Report of the State Superintendent 
of Public Instruction for 1950-1951, pages 322-324, discloses that in every 
city and county in Virginia the white schools are superior to Negro 
schools in terms of value of sites and buildings, value of furniture and 
equipment, and value of school buses. Appellants took the appellees’ own 
figures and demonstrated at the trial without challenge that for every 
dollar the state had spent on instruction in white schools, eighty-five 
cents had been spent in the Negro schools in 1933-1934; and that in 1950 
the figure in the Negro schools had increased to eighty-nine cents (Tr. 
955-g-h) ; that taking into account the state’s ambitious construction 
program even after these proposed projects are completed, for every 
dollar invested in sites and buildings in the white schools, seventy-four 
cents would have been invested in Negro schools (Tr. 956).



15

versity of Virginia, unreported, Civil Action No. 30, (W.D. 
Va. 1950) was necessary to secure admission of a Negro 
to the only state facility where legal training was being- 
offered.

In all the cases which heretofore have reached this Court 
involving the equality of educational opportunities as be­
tween the segregated and nonsegregated groups, either 
the separate facilities have been inferior to those available 
to other racial groups or nonexistent. Camming v. Board 
of Education, 175 U. S. 528; Missouri ex rel Gaines v. 
Canada, supra; Sipuel v. Board of Regents, supra; Sweatt 
v. Painter, supra; McLaurin v. Board of Regents, supra; 
Gray v. University of Tennessee, supra. The present case 
falls into the same pattern. The “ separate but equal”  
theory as a rule of law has been a total failure in provid­
ing that protection against racial discrimination which 
was concededly one of the primary purposes of the Four­
teenth Amendment. Shelley v. Kraemer, supra. Acutal 
experience has demonstrated the fallacy of the theory and 
it should now be discarded.

With respect to the operation of the separate school 
laws in this case, this Court is in exactly the same posi­
tion as it was in Tick Wo v. Hopkins, supra. There, after 
finding that the ordinance in question made possible uncon­
stitutional discrimination against Chinese solely because 
of race, the Court struck it down. It declared at 373:

“ . . .w e are not obliged to reason from the probable 
to the actual . . . For the cases present the ordinances 
in actual operation, and the facts shown establish an 
administration directed so exclusively against a par­
ticular class of persons as to warrant and require the 
conclusion that . . . with a mind so unequal and 
oppressive as to amount to a practical denial by the 
State of that equal protection of the laws which is 
secured , , , the Fourteenth Amendment to the Consti­



16

tution of the United States. Though the law itself he 
fair on its face and impartial in appearance, yet, if it 
is applied and administered by public authority with 
an evil eye and an unequal hand, so as practically to 
make unjust and illegal discrimination between per­
sons in similar circumstances, material to their rights, 
the denial of equal justice is still within the prohibition 
of the Constitution. ’ ’

The separate school laws make possible discrimination 
against Negroes because of their color, deliberate and 
invidious discrimination has been its actual result for more 
than thirty-four continuous years in Prince Edward County. 
No law should be allowed to stand where discrimination 
forbidden by the federal Constitution is made possible 
and indeed actually and inevitably results. Yick Wo v. 
Ilopkins, supra.

Looking at the application of these laws in Prince Edward 
County, the conclusion is inescapable, we submit, that 
appellants’ rights as guaranteed under the Fourteenth 
Amendment can only be secured if the state’s separate 
school laws are held unconstitutional, and appellees are 
required to admit appellants to the superior schools in the 
county without regard to race or color.

3. The findings of the court below entitle appellants to 
admission at once to the superior schools in Prince Edward 
County.

In Missouri ex rel Gaines v. Canada, supra, at 352, this 
Court, even without a record showing the injury incident 
to racial segregation, held that a Negro applicant must 
be admitted to the state university “ in the absence of 
other and proper provisions for his legal training. ”  “  The 
admissibility of laws separating the races in the enjoyment 
of privileges afforded by the State rests wholly upon the 
quality of the privileges which the laws give the separated



17

groups within the State.”  Id at 349. Subsequently, in 
Sipuel v. Board of Regents, supra, the state was held under 
obligation to furnish educational opportunities for Negro 
applicants as soon as these were furnished any other group. 
Finally, in Sweatt v. Painter, supra, after finding the state 
had failed to provide equal educational opportunities to a 
Negro applicant, this Court said at pages 635, 636: “ . . . pe­
titioners may claim his full constitutional right: legal edu­
cation equivalent to that offered by the State to students 
of other races . . . the Equal Protection Clause of the 
Fourteenth Amendment requires that petitioner be ad­
mitted to the University of Texas Law School.”

Eights secured under the Fourteenth Amendment are 
personal and present, Sweatt v. Painter, supra, at 605; 
McLaurin v. Board of Regents, supra; Shelley v. Kraemer, 
supra; Sipuel v. Board of Regents, supra; Missouri ex rel 
Gaines v. Canada, supra, and having established a clear 
and unmistakable violation of these constitutional guaran­
tees, appellants are entitled to full and effective relief at 
once which in this instance is their immediate admission 
to the white schools. It should be remembered that appel­
lants are high school students. For many this represents 
their last opportunity to obtain equal educational oppor­
tunities. A decree effective at some future time when the 
state gets around to completing a new Negro high school 
after they graduated will mean in fact that they will secure 
no relief.

In Belton et al. v. Gebhart et aL, Del. Ch,, A 2d , 
decided April 1, 1952, the Delaware Court dealt with the 
same problem raised here. The state presented evidence 
to show that it was engaged in a building program designed 
to better the Negro schools and argued that under such 
circumstances, the court should merely direct the equaliza­



18

tion of facilities and allow the state time to comply with 
such an order. While recognizing that some courts in 
similar cases had taken this course, Chancellor Seitz rejected 
this proposal on the grounds that where a showing has 
been made of an existing and continuing “ violation of the 
‘ separate but equal’ doctrine, [a Negro applicant] is en­
titled to have made available to him the State facilities 
which have been shown to be superior. ’ ’ Otherwise, he said, 
a complainant would be told that although his constitutional 
rights had been violated, he would have to patiently wait 
for the court to find out whether they were still being 
violated at some future date. “ To postpone such relief is 
to deny relief, in whole or in part, and to say that the 
protective provisions of the Constitution offer no imme­
diate protection.”  The court concluded that despite the 
state’s future plans, immediate injunctive relief was nec­
essary and issued a decree restraining the state from deny­
ing admission to the white school based upon race and 
color.

The only basis upon which the court below could have 
sustained the constitutionality of Virginia’s separate school 
laws is under the “ separate but equal”  doctrine. While 
appellants contend that their rights should not be measured 
by that formula, and that no state has power to make 
racial distinctions among its citizenry with respect to edu­
cational facilities, certainly they are entitled to no less 
than the Plessy v. Ferguson doctrine requires, i.e., equal 
educational opportunities.

While upholding the constitutionality of the segrega­
tion of appellants in the public high schools of Prince 
Edward County, the court below found that equal educa­
tional opportunities with respect to buildings, facilities, 
curricula and means of transportation were not being of­
fered at the Moton High School and would not be offered



19

until 1953.13 Since a sine qua non to a finding of constitu­
tionality even under the minimum constitutional standard— 
the “ separate but equal”  doctrine—is the equality of the 
facilities provided for the segregated group, the state in 
this case has failed to build the constitutional flooring 
essential to its argument that its separate school laws are 
valid. Under these circumstances the court below was at 
least obligated to order appellants’ admission to the supe­
rior schools without regard to the state’s policy of racial 
segregation. In failing to issue such a decree, the court 
below committed a fatal error, and its judgment should 
be reversed.

4. Equal educational opportunities in fact cannot be 
provided under Virginia’s separate school laws.

Controversy has raged for many years over the question 
as to whether the framers of the Fourteenth Amendment 
specifically intended to deprive the state of power to pro­
mulgate and enforce racial segregation in public schools. 
Modern-day scholars have demonstrated that racial segre­
gation was one of the evils which the framers of the Four­
teenth Amendment sought to eradicate.14 It has always 
been clear and undisputed, however, that the Fourteenth 
Amendment sought to secure forever against state abridg­
ment full and equal civil and political rights for Negroes. 
Shelley v. Kraemer, supra, at 23. It is against this undis­
puted objective that Virginia’s separate school laws must 
be measured.

18 Appellants introduced evidence to show that even when the new 
Moton High School is completed, for every dollar spent on white high 
school buildings and facilities in Prince Edward County, eighty-two 
cents would be spent for Negro schools (Tr. 958).

14 E.g., see Graham, “ The Early Anti-Slavery Backgrounds of the 14th 
Amendment,” Wis. L.Rev., 478, 610 (1950) ; Frank and Munro, “ The 
Original Understanding of ‘Equal Protection of the Laws,’ ” 50 Col. 
L.Rev. 131 (1950).



20

Racial segregation has been sustained in the past under 
the “ separate but equal”  philosophy. Upon the evidence 
introduced at the trial of this case, there is little doubt that 
appellants have been subjected to invidious discrimination 
under the shield of the segregation laws. Whatever inter­
pretation may have been placed upon the Constitution by 
past courts, constitutional guarantees can only be given 
meaning and vitality in the light of present knowledge 
and experience. See Smith v. Allwright, 321 U. S. 649, 665; 
see also Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1939). 
It is difficult to conclude today that separate schools can 
ever be equal schools.

Appellants contend that they have been denied equal edu­
cational opportunities in Prince Edward County because 
they are required to attend racially segregated schools 
and that these schools are in fact inferior to schools which 
the state provides for white children. The court has found 
that the segregated schools are inferior with respect to 
buildings, facilities, curricula and means of transportation. 
Appellants contend that in deciding the constitutional 
question involved here—whether appellants are receiving- 
equal educational opportunities—the inquiry cannot be 
limited to a comparison of curricula and physical facilities 
alone but must embrace every significant factor which 
relates to educational and mental development.

Appellants introduced experts in the fields of education 
and psychology who testified that racial segregation stig­
matizes the Negro child with a sense of inferiority; that 
it impedes the natural development of his mental resources; 
that it is conductive to the development of an unhealthy 
personality; and that it bars contact with the dominant 
groups in the community thereby making it impossible for 
the Negro child to receive educational opportunities equal 
to those which would be available to him in an unsegregated



21

school system (Tr. 241, 276, 318-321, 391-393, 404-406). Cf. 
Siveatt v. Painter, supra. Appellees introduced experts 
in the fields of education, psychology and psychiatry to*show 
that given equal facilities in a separate school, the Negro 
would receive equal educational opportunities.

As to this phase of the case, the court said that appellants 
had introduced expert witnesses who unanimously agreed 
that segregation in schools “ immeasurably abridged [the 
Negro child’s] educational opportunities” ; and that on the 
other hand appellees had introduced equally distinguished 
expert witnesses who agreed that given equal physical 
facilities, offerings and instruction, “ the Negro would re­
ceive in a separate school the same educational opportunity 
as he would obtain in the classroom “ and on the campus 
of a mixed school . . . On this fact issue the Court cannot 
say that the plaintiffs’ evidence overbalances the defend­
ants.”  (Appendix “ A ” .)

Four experts in education testified for appellees—Dr. 
Colgate Darden, President of the University of Virginia 
and former Governor of the State (Tr. 741-761) ; Dr. Dabney 
Lancaster, President of Longwood College (Tr. 762-793) ; 
Dr. Dowell J. Howard, State Superintendent of Public 
Instruction (Tr. 717-740); and Dr. Lindley Stiles, Dean of 
the Department of Education of the University of Virginia 
(Tr. 803-855). All testified that segregated schools with 
equal facilities would be better for Negroes than mixed 
schools and expressed fear of withdrawal of public support 
if segregation were abolished.

Appellees’ witness, Dr. Darden, however, stated that seg­
regation in many instances had been used as a shield for 
oppression, discrimination and mistreatment although he 
was of the opinion that this should not necessarily follow 
from segregation (Tr. 752).

Appellees’ witness, Dr. Stiles, stated that he could not 
accept segregation as a social practice (Tr. 825), and that



22

to the degree that Negroes are given equal educational 
opportunities to learn and to the extent that all Virginians 
get better schools, segregation was in the process of being 
abolished (Tr. 826). He said that the debate was not 
over whether society could or should be cured of the ail­
ment of segregation, but rather on how to treat the disease 
(Tr. 825-827). With better education for both groups, 
he felt the time would come when segregation would be 
considered unnecessary (Tr. 835).

Also testifying for appellees were Dr. William Kelly, a 
psychiatrist and Director of the Memorial Foundation 
and Memorial Guidance Clinic, Richmond, Virginia (Tr. 
856-883) ; John Buck, a retired clinical psychologist (Tr. 
884-910) ; and Dr. Henry E. Garrett, Chairman of the 
Department of Psychology, Columbia University (Tr. 911- 
955C). Again, all voiced the opinion that Negroes could 
get equal training in separate schools.

Appellees’ witness, Dr. Kelly, while of the opinion that 
segregation was going to end, feared its abrupt termina­
tion (Tr. 871 and 875). He conceded, however, that racial 
segregation was adverse to the personality development 
of the individual, although lie expressed doubt that its 
elimination would per se change the personality defect 
or remove the adverse influence (Tr. 882).

Appellees’ witness, Mr. Buck, stated that racial segre­
gation in the abstract was bad (Tr. 903), and that it was 
the consensus of members of his profession that segrega­
tion was harmful, although he felt the harm done depended 
upon many other circumstances (Tr. 908).

Appellees’ witness, Dr. Garrett, felt that segregation 
could not be defended if the segregated group is stigma­
tized or put into an inferior position, but that the mere 
fact of segregation did not necessarily mean discrimination 
(Tr. 920-921). In view of the present state of mind of



Virginia and given equal facilities, it was Ms feeling that 
Negro children could get a better education in segregated 
schools (Tr. 953). However, in answer to a question as 
to whether segregation as practiced in the United States 
today was harmful, Dr. Garrett stated : “ In general, when­
ever a person is cut off from the main body of society or 
a group, if he is put in a position that stigmatizes him 
and makes him feel inferior, I say, yes, it is detrimental 
and deleterious to him.”  (Tr. 954.)

Thus, four of appellees’ seven expert witnesses admit 
that segregated schools have harmful effects on Negro 
children, and while favoring the eventual elimination of 
separate schools, they presently support the immediate 
preservation of separate schools primarily because of the 
climate of public opinion in the state. A fifth witness for 
appellees recognized that segregation made possible racial 
discrimination. Only two of appellees’ witnesses gave un­
qualified support to the state practice, and even they placed 
emphasis upon public opinion.

Whether segregation in the public schools of the state 
is a wise or sound policy is not involved in this litigation; 
nor can the state practice be defended on the grounds 
that even if removed appellants will be no better off since 
the teachers and white students might not accept them. 
This Court dealt firmly with that argument in McLaurin v. 
Board of Regents, supra, at 641, 642, where it said:

‘ ‘ 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 Con­
stitutional difference—between restrictions imposed by 
the state which prohibit the intellectual commingling 
of students, and the refusal of individuals to commingle 
where the state presents no such bar. The removal 
of the state restrictions will not necessarily abate in­



24

dividual and group predilections, prejudices and 
choices. But at the very least, the state will not he 
depriving appellant of the opportunity to secure accept­
ance by his fellow students on his own merits.”

And as Judge Soper noted in McKissick v. Carmichael, 
187 F. 2d 949, 953, 954 (CA 4th 1951) the state cannot suc­
cessfully defend against the assertion of constitutional 
rights on the grounds that it is in the individual’s interest 
that he be deprived of them. We quote his apt language:

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

It must be remembered that the Fourteenth Amendment 
requires that the state not deny to appellants, because 
of race, educational opportunities equal to those it furnishes 
other groups. Only if it were possible to resolve that ques­
tion in terms of physical facilities would it be appropriate 
to limit the reach of the constitutional mandate to that 
phase of the educational picture alone. That the consti­
tutional guarantee of equal educational opportunities in­
volves more than mere equal physical offerings was settled 
beyond doubt in the McLaurin decision. Whatever may be 
the present force of the Plessy v. Ferguson “ separate but 
equal”  doctrine, it is now too late for a court to determine 
constitutional equality on the basis of physical facilities 
alone as that case seems to imply.



25

Appellants have demonstrated that racial separation in 
public schools as practiced in Prince Edward County injures 
appellants and is adverse to their educational development. 
With this basic thesis at least four of appellees’ expert 
witnesses agree. These were the considerations which were 
the basis of the McLaurin decision. If the state practice 
produces harm forbidden by the Constitution, the fact that 
a majority of the state’s population does not want the 
practice changed or that it has become a feature of the 
state’s way of life cannot insulate the practice against the 
reach of the Constitution. Since it has been demonstrated 
that segregation in the public schools in Prince Edward 
County is injurious and adverse to appellants, we submit 
that the separate school laws are forbidden by the Four­
teenth Amendment and should be struck down.

5. The decree of the court below fails to grant appellants 
effective relief from, an admitted, deprivation of their con­
stitutional rights.

The court below found that Moton school is unequal with 
respect to curricula and issued a decree designed to imme­
diately remove discrimination in this category. Serious 
questions arise, however, concerning the meaning of this 
decree and the problem of enforcement presents, in our 
view, insurmountable difficulties.

In its opinion the trial court stated that:

. . we find physics, world history, Latin, advanced 
typing and stenography, metal and machine shop 
work and drawing, not offered at Moton, but given in 
the white schools.”

We assume that under this decree appellees must provide 
at Moton at once courses in physics, world history, Latin, 
advanced typing and stenography, metal and machine shop 
work and drawing. Yet as to physics, metal and machine 
shop work and drawing, there are deficiencies at Moton



26

in the equipment and facilities essential to the proper 
teaching of these courses.

The court was not unaware of these deficiencies in facili­
ties and equipment. For it is specifically stated in the 
court’s opinion that the iVIoton. school lacks a gymnasium, 
showers, o r :

“ dressing rooms to accompany physical education 
or athletics, no cafeteria, no teachers’ restroom and 
no infirmary to give some of the items lacking in Moton 
lout present in the white school. Moton’s science equip­
ment and facilities are lacking and inadequate. No 
industrial art shop is provided . . . ”  (emphasis sup­
plied)

Inequalities in buildings and facilities under the court’s 
decree need not be removed until the new Moton High 
School, promised for occupancy in September, 1953, is 
completed.

Either appellees must provide equality in curricula at 
once by offering courses in physics, metal and machine 
shop work and drawing without the necessary equipment— 
in which case they cannot provide substantial equality now; 
or appellees are permitted to wait until the promised new 
school is finished at some subsequent date before being 
required to equalize the curricula—in which case the decree 
ordering equalization at once is meaningless.

The record further shows that Moton is overcrowded. 
If courses in physics, metal and machine shop work and 
drawing, advanced typing and stenography must be added 
at once, this may require special rooms which Moton can­
not spare without dropping some of the program presently 
in force. Thus, in order to comply with this decree, appel­
lees may have to create new curricula inequalities without 
curing the old ones.

Confusion is also created by the court’s phraseology. 
The court states:



27

“ While the school authorities tender their willing­
ness to give any course in the Negro school now obtain­
able in the white school, all courses in the latter should 
be made more readily available to the students at 
Moton. ’ ’

It is difficult to conclude exactly what appellees are required 
to do in this regard.

Concerning bus transportation, the court had this to say 
in its opinion:

“ In supplying school buses the Negro students have 
not been accorded their share of the newer vehicles. 
This practice must cease. In the allocation of new 
conveyances, as replacements or additional equipment, 
there must be no preference in favor of the white 
students. ’ ’

It issued a decree ordering immediate equality in means of 
transportation. Yet, the court did not indicate what 
appellees must now do to satisfy this order. One could 
assume that appellees could satisfy the court’s decree in 
operating school transportation facilities under present 
conditions as long as Negro children got their proportionate 
share of any new equipment which might be added in the 
future. On the other hand, the decree may require appel­
lees to buy new equipment for Negro children at once.

With reference to buildings and facilities, after pointing- 
out some of the inequalities in the Negro school, the court 
uses the all-inclusive and vague terminology “ in many 
other ways the structures and facilities do not meet the 
level of the white school.”  The expert witness for appel­
lants who surveyed the schools testified that Moton was 
at a great disadvantage in respect to attractiveness, ar­
rangement of physical plant, location, construction and 
compactness (Tr. 114-115). Unless there is equality of 
buildings in these features, even conceding the possibility



of a separate equality, the new structure cannot be the 
equal of the white school. It is not clear whether under 
this decree appellees must take these features into account.

A  school building program is constantly in progress. 
Teaching methods change as educators gain added insight 
into the problems of mass education. Public school edu­
cation is materially different from what public school edu­
cation was ten or twenty years ago or will be several years 
hence. With public school education always in flux, no 
two schools can retain a constant and fixed relation to each 
other.

Certainly this relationship cannot be fixed by court decree. 
As Judge Edgerton dissenting in Carr v. Corning, 182 F. 
2d 14, 22, 31 (CADC 1950), said:

“ . . . two schools are seldom if ever fully equal to 
each other in location, environment, space, age, equip­
ment, size of classes, and faculty.’ '

While the meaning and effect of the decree is far from 
clear, its enforcement would necessarily involve the court 
in the daily operation of the public school system in Prince 
Edward County. It is clear that this is a task for which 
the judiciary is unsuited, and “ control through the power 
of contempt is crude and clumsy and lacking in the flexibility 
necessary to make detailed and continuous supervision 
effective.”  United States v. Paramount Pictures, Inc., 334 
U. S. 131, 163.15

As a matter of fact this decree seems to require no more 
than the statute itself—which has been in force since 1869- 
70—under which appellees are required to maintain the

15 See Belton et al. v. Bebhart et al., supra, where in refusing to merely 
issue an injunctive decree ordering the state to equalize the Negro school 
facilities within the framework of segregation, the court stated that one 
of the bases for its refusal was that it could not see how the court could 
implement such an injunction against the state.



29

colored schools under the “ same general regulations as to 
management, usefulness and efficiency”  as the white schools. 
Unquestionably, this statutory requirement has not pre­
vented discrimination against Negro children. For more 
than thirty-four years, officials of Prince Edward County 
have been either woefully derelict and disinterested, ac­
tively prejudiced against Negroes or are unable to pro­
vide equal educational facilities under the state’s separate 
school laws. Except to insure the involvement of appel­
lants and the class they represent in constant and consid­
erable litigation to obtain enforcement and clarification of 
the court’s decree, the judgment accomplishes little. It is 
indeed difficult to believe that this decree will succeed where 
specific statutory requirements have failed.

On the other hand, by declaring the separate school laws 
unconstitutional and by restraining appellees from deny­
ing admission to the superior schools on the basis of race 
and color, the court settles and resolves the basic problem 
once and for all. Its only future concern would be upon 
a showing that appellees were attempting to avoid the
decree. n tConclusion

For the foregoing reasons, it is respectfully submitted, 
the judgment of the court below should be reviewed by 
the United States Supreme Court and reversed.

R obert L. Carter,
Oliver W . H ill,
T hurgood Marshall,
Spottswood W. R obinson, III, 
Counsel for Plaintiffs-Appellants.

J ack G-reenberg,
J ames M. Nabrit,
Jack B. W einstein,

Of Counsel.
Dated: May 5, 1952.



30

APPENDIX “A ”

IN THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF VIRGINIA,

AT RICHMOND.

Civil Action No. 1333. 

DOROTHY E. DAVIS, et al.,
v.

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, et al.

(Heard February 25-29, 1952. Decided March 7, 1952)

Before Dobie, Circuit Judge, and H utcheson and Bryan, 
District Judges.

Oliver W. Hill, Esquire, Spottswood W. Robinson, 3rd, Es­
quire (Hill, Martin & Robinson) of Richmond, Virginia, 
and Robert L. Carter, Esquire, of New York City, for 
the plaintiffs;

T. Justin Moore, Esquire, Archibald G. Robertson, Esquire 
and T. Justin Moore, Jr., Esquire (Hunton, Williams, An­
derson, Gay & Moore) of Richmond, Virginia, for the 
defendant school board and superintendent.

Honorable J. Lindsay Almond, Attorney General of Vir­
ginia, and Henry T. Wickham, Esquire, Assistant Attor­
ney General of Virginia, for the Commonwealth of Vir­
ginia.

B ryan, District Judge:
Prince Edward is a county of 15,000 people in the southern 

part of Virginia. Slightly more than one-half of its in­
habitants are Negroes. They compose 59 percent of the 
county school population. At the high school plane the 
average pupil attendance is 386 colored, 346 white. For 
themselves and their classmates, a large number of these 
Negro students, their parents, or guardians now demand



31

that their county school board and school superintendent 
refrain from further observance of the mandate of section 
140 of the Constitution of Virginia and its statutory coun­
terpart.,16 the former reading: “ White and colored children 
shall not be taught in the same school. ’ ’ Defendants ’ adher­
ence to this command, it is averred, creates a positive dis­
crimination against the colored child solely because of his 
race or color, constituting both a deprivation of his privi­
leges and immunities as a citizen of the United States and a 
denial to him of the equal protection of the laws. _ The pro­
hibition is denounced as a breach of the Civil Rights Act17 
and as inimical to section 1 of the 14th Amendment of the 
Federal Constitution.

Defendants pray a declaration of the invalidity, and an 
injunction against the enforcement of the separation pro­
visions. In the alternative, they ask a decree noting and 
correcting certain specified inequalities between the white 
and colored schools. That the schools are maintained with 
public tax moneys, that the defendants are public officials, 
and that they separate the children according to race in obe­
dience to the State law are conceded. The Commonwealth 
of Virginia intervenes to defend.

Plaintiffs urge upon us that Virginia’s separation of the 
Negro youth from his white contemporary stigmatizes the 
former as an unwanted, that the impress is alike on the 
minds of the colored and the white, the parents as well as 
the children, and indeed of the public generally, and that the 
stamp is deeper and the more indelible because imposed by 
law. Its necessary and natural effect, they say, is to preju­
dice the colored child in the sight of his community, to im­
plant unjustly in him a sense of inferiority as a human being 
to other human beings, and to seed his mind with hopeless 
frustration. They argue that in spirit and in truth the col­
ored youth is, by the segregation law, barred from asso­
ciation with the white child, not the white from the colored, 
that actually it is ostracism for the Negro child, and that 
the exclusion deprives him of the equal opportunity with

16 Constitution of 1902; See. 22-221, Code of Virginia 1950, q.v. post
p. 6.

it 8 USCA 41.



32

the Caucasian of receiving an education unmarked, an im­
munity and privilege protected by the statutes and consti­
tution of the United States.

Eminent educators, anthropologists, psychologists and 
psychiatrists appeared for the plaintiffs, unanimously ex­
pressed dispraise of segregation in schools, and unequivo­
cally testified the opinion that such separation distorted the 
child’s natural attitude, throttled liis mental development, 
especially the adolescent, and immeasurably abridged his 
educational opportunities. For the defendants, equally dis­
tinguished and qualified educationists and leaders in the 
other fields emphatically vouched the view that, given equiv­
alent facilities, offerings and instruction, the Negro would 
receive in a separate school the same educational opportu­
nity as he would obtain in the classroom and on the campus 
of a mixed school. Each witness offered cogent and appeal­
ing grounds for his conclusion.

On this fact issue the Court cannot say that the plaintiffs’ 
evidence overbalances the defendants’. But on the same 
presentation by the plaintiffs as just recited, Federal 
courts18 19 have rejected the proposition, in respect to elemen­
tary and junior high schools, that the required separation of 
the races is in law offensive to the National statutes and 
constitution. They have refused to decree that segregation 
be abolished incontinently. We accept these decisions as 
apt and able precedent. Indeed we might ground our con­
clusion on their opinions alone. But the facts proved in our 
case, almost without division and perhaps peculiar here, so 
potently demonstrate why nullification of the cited sections 
of the statutes and constitution of Virginia is not warranted, 
that they should speak our conclusion.

Regulations by the State of the education of persons 
within its marches is the exercise of its police power—‘ ‘ the 
power to legislate with respect to the safety, morals, health 
and general welfare. ’ ,19 The only discipline of this power by

18 Briggs et al. V. Elliott et aL, 98 F.Supp. 529, and Carr v. Coming, 
182 F2d 14, citing Plessy v. Ferguson, 163 U.S. 537, 41 L.Ed., 256; Gong 
Lum v. Rice, 275 U.S. 78, 72 L.Ed. 172, and Cumming v. County Board 
of Education, 175 U.S. 528, 44 L.Ed. 262.

19 Briggs v. Elliott, supra, 98 F. Supp. 529, 532.



33

the 14th Amendment and the Civil Rights Act of Congress is 
the requirement that the regulation be reasonable and uni­
form. We will measure the instant facts by that yardwand.

It indisputably appears from the evidence that the sep­
aration provision rests neither upon prejudice, nor caprice, 
nor upon any other measureless foundation. Rather the 
proof is that it declares one of the ways of life in Virginia. 
Separation of white and colored “ children”  in the public 
schools of Virginia has for generations been a part of the 
mores of her people. To have separate schools has been 
their use and wont.

The school laws chronicle separation as an unbroken 
usage in Virginia for more than eighty years. The General 
Assembly of Virginia for its session of 1869-70, in providing 
for public free schools, stipulated “ that white and colored 
persons shall not be taught in the same school, but in sep­
arate schools, under the same general regulations as to man­
agement, usefulness and efficiency.” 20 It was repeated at 
the session 1871-2,21 and carried into the Code of 1873.22 
As is well known, all this legislation occurred in the period 
of readjustment following the Civil War when the interests 
of the Negro in Virginia were scrupulously guarded. The 
same statute was re-enacted by the Legislature of 187723 
Virginia. In almost the same words separation in the 
schools was carried into the Acts of Assembly of 1881-2,25 
and similarly embodied in the Code of 1887,26 in the Code of 
1919,27 in the same words: “ White and colored persons shall 
not be taught in the same school, but shall be taught in sep­
arate schools under the same general regulations as to man­
agement, usefulness and efficiency.”  The importance of 
the school separation clause to the people of the State is

20 Acts of 1869-70, cp. 259, p. 402.
21 Acts of 1871-2, c. 370, p. 461.
22 Title 23, c. 78, sec. 58.
23 Acts of General Assembly 1876-7, c. 38, p. 28.

and again in 1878,24 still within the Reconstruction years of
24 Acts of General Assembly 1877-8, c. 14, p. 10.
25 C. 40, pp. 36, 37.
2« Sec. 1492.
27 Sec. 719.



34

signalized by the fact that it is the only racial segregation 
direction contained in the Constitution of Virginia.

Maintenance of the separated systems in Virginia has not 
been social despotism, the testimony points out, and suggests 
that whatever its demerits in theory, in practice it has be­
gotten greater opportunities for the Negro. Virginia alone 
employs as many Negro teachers in her public schools, ac­
cording to undenied testimony, as are employed in all of 
the thirty-one non-segregating States. Likewise it was 
shown that in 29 of the even hundred counties in Virginia, 
the schools and facilities for the colored are equal to the 
white schools, in 17 more they are now superior, and upon 
completion of work authorized or in progress, another 5 
will be superior. Of the twenty-seven cities, 5 have Negro 
schools and facilities equal to the white and 8 more have 
better Negro schools than white.

So ingrained and wrought in the texture of their life is 
the principle of separate schools, that the president of the 
University of Virginia expressed to the Court his judgment 
that its involuntary elimination would severely lessen the 
interest of the people of the State in the public schools, lessen 
the financial support, and so injure both races. His testi­
mony, corroborated by others, was especially impressive 
because of his candid and knowledgeable discussion of the 
problem. A scholar and a former Governor and legislator 
of the State, we believe him delicately sensible of the cus­
toms, the mind, and the temper of both races in Virginia. 
With the whites comprising more than three-quarters of 
the entire population of the Commonwealth, the point he 
makes is a weighty practical factor to be considered in de­
termining whether a reasonable basis has been shown to 
exist for the continuation of the school segregation.

In this milieu we cannot say that Virginia’s separation 
of white and colored children in the public schools is with­
out substance in fact or reason. We have found no hurt or 
harm to either race. This ends our inquiry. It is not for 
us to adjudge the, policy as right or wrong—that, the Com­
monwealth of Virginia “ shall determine for itself.” 28

28 Judge Parker in Briggs v. Elliott, supra, 98 F. Supp. 529.



35

On the second phase of this case, the inequality in the 
Negro schools when compared with the white, the defendants 
confess that the building and facilities furnished for Negro 
high school education are below those of the white schools. 
We think the discrepancy extends further. We find in­
equality also in the curricula of the schools and in the 
provision for transportation of the students.

Undoubtedly frankness required admission by the de­
fendants of their dereliction in furnishing an adequate 
school plant and facilities for the Negro. His high school 
is the Robert R. Moton. It is composed of one permanent 
brick building and three temporary, one-story, frame build­
ings. No gymnasiums are provided, no shower or dressing 
rooms to accompany physical education or athletics, no 
cafeteria, no teachers’ rest room and no infirmary, to give 
some of the items absent in Moton but present in the white 
school. Moton’s science facilities and equipment are lack­
ing and inadequate. No industrial art shop is provided, and 
in many other ways the structures and facilities do not meet 
the level of the white school.

In offerings we find physics, world history, Latin, ad­
vanced typing and stenography, wood, metal and machine 
shop work, and drawing, not offered at Moton, but given 
in the white schools. While the school authorities tender 
their willingness to give any course in the Negro school now 
obtainable in the white school, all courses in the latter should 
be made more readily available to the students at Moton.

In supplying school buses the Negro students have not 
been accorded their share of the newer vehicles. This prac­
tice must cease. In the allocation of new conveyances, as 
replacements or additional equipment, there must be no 
preference in favor of the white students.

On the issue of actual inequality our decree will declare 
its existence in respect to buildings, facilities, curricula 
and buses. We will restrain immediately its continuance in 
respect to the curricula and conveyances. We will order the 
defendant to pursue with diligence and dispatch their pres­
ent program, now afoot and progressing, to replace the 
Moton buildings and facilities with a new building and new 
equipment, or otherwise remove the inequality in them.



36

The frame structures at Moton were erected in 1948 and 
1949 as temporary expedients, upon the advice and author­
ity of the State Board of Education. Through the activities 
of the school board and the division superintendent, defend­
ants here, $840,000.00 has been obtained, the land acquired, 
and plans completed, for a new high school and necessary- 
facilities for the Negroes. Both local and State authori­
ties are moving with speed to complete the new program. 
An injunction could accomplish no more.

A  decree will be entered in accordance with this opinion.
(S.) A lbert V. Bryan,
United States District Judge.

IN THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF VIRGINIA,

AT RICHMOND.

Civil Action No. 1333

DOROTHY E. DAVIS, et al.,
vs.

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, et al.

Civil Action No. 1333 

Final Decree

This cause came on to be heard upon the complaint, the 
answer of the original defendants, as well as the answer of 
the Commonwealth of Virginia, the intervening defendant, 
and upon the evidence, oral and documentary, adduced by 
all parties, and was argued by counsel.

Upon consideration whereof, the Court, for the reasons 
set forth in its written opinion filled herein, hereby

(1) (a) Denies the prayer of the complaint that the
Court declare the provisions of section 140, Constitution 
of Virginia of 1902, as amended, and section 22-221, Code of



Virginia of 1950, as amended, as invalid and in conflict with 
the statutes or Constitution of the United States; and with 
the statutes or Constitution of the United States ; and

(b) ADJUDGES AND DECLARES that the buildings, 
facilities, curricula and means of transportation furnished 
for the education of the Negro high school students in Prince 
Edward County, Virginia, are not substantially equal to 
those provided for the white high school students in said 
county; and hereby

(2) ' ADJUDGES, ORDERS and DEGREES that the 
defendants, their officers, agents, servants, employees and 
attorneys, and all persons in active concert or participation 
with them be, and they are hereby, forthwith and perpet­
ually enjoined and restrained from continuing to provide, 
or maintaining, curricula and means of transportation for 
the white high school students in said county without pro­
viding and maintaining substantially equal curricula and 
means of transportation to the Negro high school students of 
said county; and it is further

(3) ADJUDGED, ORDERED and DECREED that the 
said defendants proceed with all reasonable diligence and 
dispatch to remove the inequality existing as aforesaid in 
said buildings and facilities, by building, furnishing and 
providing a high school building and facilities for Negro 
students, in accordance with the program mentioned in said 
opinion and in the testimony on behalf of the defendants 
herein, or otherwise; and it is also

4. ORDERED that the plaintiffs recover their costs of 
their defendants.

Nothing further remaining to be done in this cause, it is 
stricken from the docket.

(S.) A bmistead M. Dobie,
United States Circuit Judge.

(S.) Sterling Hutcheson, 
United States District Judge.

(S.) A lbert V. Bryan,
United States District Judge.



38

APPENDIX “ B”

CONSTITUTION OF THE COMMONWEALTH OF 
VIRGINIA

Article IX, section 140
White and colored children shall not be taught in the 

same school.

CODE OF VIRGINIA OF 1950 

Title 22, Chapter 12, Article 1, section 22-221
White and colored persons shall not be taught in the 

same school, but shall be taught in separate schools, under 
the same general regulations as to management, usefulness 
and efficiency.

(2858)