Sweatt v. Painter Brief Amici Curiae

    IN' THE

Supreme Court of the United States
October Term, 1949

No. 44

HEMAN MARION SWEATT,

v.
Petitioner,

THEOPHILIS SHICKEL PAINTER et at.,
Respondents.

On a Writ of Certiorari to the 
Supreme Court of the State of Texas

BRIEF ON BEHALF OF 
AMERICAN JEWISH COMMITTEE 

AND
B’ NAI B’RITH (ANTI-DEFAM ATION LEAGUE) 

AS AMICI CURIAE

Makcus Cohn,
Washington, D. C.,

J acob G-bum et ,
New York City,
Attorneys for

American Jewish Committee,
B ’nai B ’ritJi (Anti-Defamation League).

Sol Rabkin, 
Jacob Schatjm, 

of Counsel.

BAR l 'RRSS INO.,  5 4  LA FA Y E T T E  ST. , N E W  YOR K 1 3  ----- WA.  5 - 8 4 3 2 - 3



TABLE OF CONTENTS

I nterest op the  A m ici ...........................................................  1

Opinions B elow  ......................................................................... 3

J urisdiction .................................................................................. 3

S tatement of F acts ................................................................ 3

Sum m ary  of A rgument .............   5

P oint I. The validity of racial segregation in pub­
lic educational facilities has never before been 
decided by this Court ............................................. 8

P oint II. Racial segregation in public educational 
institutions is an arbitrary and inadmissible 
classification under the equal protection clause 
of the Fourteenth Amendment .............................  12

P oint III. The “ separate but equal”  doctrine origi­
nated by this Court in Plessy v. Ferguson had 
no basis in then-existing legal precedent, and is 
an anachronism in the light of present-day legal 
and sociological knowledge.....................................  17

P oint  IV. Segregation necessarily imports discrim­
ination and therefore violates the requirements 
of the Fourteenth Amendment .............................. 28
(1) Equality is in fact impossible in racially

segregated public educational facilities........  29
(2) The economic, sociological and psychological

consequences of racial segregation in and of 
themselves constitute a discrimination pro­
hibited by the equal protection clause of the 
Fourteenth Amendment .................................  35

Conclusion .................................................................................. 39

A ppendix ......................................................................................  40

PAGE



11 Index

Table of Cases
PAGE

Acheson v. Murakami, 176 F. (2d) 953 ......................  17
Atchison, Topeka etc. By. v. Mathews, 174 U. S. 96 ... 21

Berea College v. Kentucky, 211 U. S. 45 ....................  9
Bryant v. Zimmermann, 278 U. S. 63 .......................... 25
Buchanan v. Warley, 245 U. S. 60 ..........................14, 24, 26
Butler v. Perry, Sheriff of Columbia County, Fla.,

240 U. S. 328 ............................................................  24

Chesapeake & Ohio By. v. Kentucky, 179 U. S. 388. .. 21
Chesapeake, 0. & S. By. Co. v. Wells, 85 Tenn. 613. .. 19
Chicago & N. W. By. Co. v. Williams, 55 111. 185......  19
Chiles v. Chesapeake & O. By. Co., 218 U. S. 71......  22
Civil Eights Cases, 109 U. S. 3 ...................................  18
Clyatt v. U. S., 197 U. S. 207 .......................................  22
Colgate v. Harvey, 296 U. S. 404 .................................  25
Camming v. County Board of Education, 175 U. S.

528 .............................................................................  9

Day v. Owens, 5 Mich. 520 ............................................. 19

Fisher v. Hurst, 333 U. S. 147 .....................................  11

Gong Lum v. Bice, 275 U. S. 7 8 ..........................2, 10, 11, 25

Hall v. DeCuir, 95 IT. S. 485 ....................................... 8,9,18
Heard v. Georgia By. Co., 1 I. C. C. B. 428..............  20
Heard v. Georgia By. Co., 3 I. C. C. B. I l l ..............  20
Hill v. Texas, 316 U. S. 400 .........................................  14
Hirahayashi v. U. S., 320 U. S. 81 ............................. 13,16
Houck v. Southern Pac. By. Co., 38 Fed. Bep. 226....  19

Korematsu v. U. S., 323 U. S. 214 13,16



Index i l l

Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61. .. 12
Logwood etc. v. Memphis etc. Ry. Co., 23 Fed.

Rep. 483 ....................................................................19,20
Louisville, New Orleans, and Texas Ry. Co. v. Mis­

sissippi, 133 U. S. 587 ........................................... 18

McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151.....11, 23
McGuinn v. Forbes, 37 Fed. Rep. 639 ..........................19, 20
Missouri ex rel. Gaines v. Canada, 305 U. S. 337. ..10,11, 25

Nixon v. Herndon, 273 U. S. 536 .................................  14

PAGE

Ohio ex rel. Clarke v. Deckenbach, 274 U. S. 392 ....... 13
Oyama v. California, 332 U. S. 633 ............................. 13, 29

Pace v. Alabama, 106 U. S. 583 .....................................  21
Patsone v. Penna., 232 U. S. 138...................................  13
People v. King, 110 N. Y. 418 .....................................  20
Perez v. Sharp, 32 Calif. (2d) 711 .............................  21
Plessy v. Ferguson, 163 U. S. 537 ...... 6, 7, 9,11,18, 20, 21,

22, 23, 24, 25, 26, 27, 37

Shelley v. Kraemer, 334 U. S. 1................................... 15, 35
Sipuel v. Board of Regents of the University of Okla­

homa, 332 U. S. 631 ................................................  11
Smith v. Allwright, 321 U. S. 649 .................................  14
Strauder v. West Virginia, 100 U. S. 303 .................. 14

Takahashi v. Fish and Game Commission, 334 U. S.
410 ...........................................................................  14

Terminiello v. City of Chicago, 337 U. S. 1 ................. 17
The Roanoke, 189 U. S. 185............................................. 22
The Sue, 22 Fed. Rep. 483 .........................................19, 20
Thomas v. Collins, 323 U. S. 516 .................................  13



IV Index

J?AGE

West Chester etc. Ry. v. Miles, 55 Penn. St. 209 ......  19
Westminster School District v. Mendez, 161 F. (2d)

774 ............................................................................ 2

Yick Wo v. Hopkins, 118 U. S. 356 .............................. 14
Yu Cong Eng v. Trinidad, 271 U. S. 356....................  14

United States Constitution

Fourteenth Amendment 5, 6, 7, 8,11,12,15,18,19, 21, 22, 23,
24, 25, 29, 35, 37

Interstate Commerce Clause ................................. 18, 21, 22
Thirteenth Amendment .................................................22, 24

Federal Statutes

Interstate Commerce Act, Sec. 3 .................................  20
Federal Civil Rights Act .............................................  18

State Constitutions and Statutes

Constitution of Texas. Art. VII, Sec. 7 28
Oklahoma "Separate-coach statute”  23
Texas R v:- 1  Civil Statutes. Title 49. Chap. 19. Art.

2900    28

Other Authorities

Bore.  nuraee I t  a nr .  r ".or. of the Negro in (lie
American Social Order (1934) 34,37

Boysm. Lean ueu . . Stores and 1'rouds ol Ihf 
-mthds Between White and Negro Teacher*• 

Salaries in S:e Sourer” States, t900



Index v

Caliver, Ambrose, Availability of Education to Ne­
groes in Eural Communities, Office of Ed., Dept.

PAGE

of Interior, Bulletin No. 12 (1935) ........................ 32
Davis, A. and Dollard, I., Children of Bondag*e (1940) 37
Embree, Edwin R., Brown America (1931) ..............  33
Gallagher, B. G., American Caste and the Negro Col­

lege (1938) ..........................................................37,38
Johnson, Chas. S., The Negro in American Civiliza­

tion (1930) ................................................................  33
Long, Some Psychogenic Hazards of Segregated 

Education of Negroes, 4 J. of Negro Ed. 336 
(1935)   38

Long, The Intelligence of Colored Elementary Pupils 
in Washington, D. C., 3 J. of Negro Ed. 205-22 
(1934) ........................................................................ 38

46 Mich. L. Rev. 639 (1948) ...........................................  9
Moton, Robert R., What the Negro Thinks (1929) 33,37
Newbold, N. C., Common Schools for Negroes in the 

South, The Annals of the Amer. Acad, of Polit.
& Soc. Science, Vol. 140, No. 229 (Nov. 1928) 32

Phelps — Stokes Fund, Educational Adaptations:
Report of Ten Years’ Work, 1910 1920 33

Report of a Survey of the Public Schools of (lie l)is 
trict of Columbia Conducted Under I,bo Auspices 
of the Chairmen of the Subeoounifleos on Ills 
trict of Columbia Appropriations Conmiiltoos 
of the Senate and House of Ifepn; eufnlives,
U. H, Gov’t Printing ()1T, Washington, D 
(1949) .......... , 87



V I Index

Report of the President’s Commission on Higher 
Education, Higher Education for American De­
mocracy: Vol. II, Equalizing and Expanding In­

PAGE

dividual Opportunity (1947) .............................. 33
Segregation in Public Schools—A Violation of 

“ Equal Protection of the Laws” , 56 Yale L. J.
1059 (1947) ..............................................................  38

Survey of Higher Education for Negroes, H. S. Office 
of Ed., Misc. No. 6, Vol. II, U. S. Gov’t Print.
Off., Wash. D. C. (1942) .....................................  33

The Availability of Education in the Texas Negro
Separate School, 16 J. of Negro Ed. 429 (1947) 33

Thompson, Chas. H., Court Action the Only Reason­
able Alternative to Remedy the Immediate Abuse 
of the Negro Separate School, 4 J. of Negro Ed.
419 (1935) ................................................................  31

Thompson. Chas. H., The Critical Situation in Negro 
Higher and Professional Education, 15 J. of 
Negro Ed. 579 (1946) .............................................  32

Waite. Edward F.. The Negro in the Supreme Court,
30 Minn. L. Rev. 219 (1946) .................................  21

Woofter. Thomas J. Jr.. The Basis of Racial Adjust­
ment (1925) .................. _ .... .................................  33



IN THE

Supreme Court of the United States
October Term, 1949

No. 44

HEMAN MARION SWEATT,

v.

Petitioner,

THEOPHILIS SHICKEL PAINTER et al.,
Respondents.

On a Writ of Certiorari to the 
Supreme Court of the State of Texas

BRIEF ON BEHALF OF 
AMERICAN JEWISH COMMITTEE 

AND
B’NAI B’RITH (ANTI-DEFAM ATION LEAGUE) 

AS AMICI CURIAE

Interest of the Amici *

This brief is filed, with the consent of both parties, on 
behalf of the American Jewish Committee, and the Anti- 
Defamation League of B ’nai B ’rith.

* The Appendix contains a description of the organizations 
appearing as amici curiae.



2

Both of these organizations are dedicated to the preser­
vation of democratic rights guaranteed all citizens by onr 
Federal Constitution. Each has long since recognized that 
the invasion of the rights of any individual or group on 
the basis of race undermines the foundation of rights 
guaranteed to all groups in our democracy.

The present case causes us deep concern because the 
pattern of discrimination in segregated educational facili­
ties has deprived millions of Americans of equality of op­
portunity and has perpetuated an abhorrent caste system. 
In the light of sociological and psychological insights 
gained from experience with segregated school systems it is 
clear that compulsory segregation results in physical, 
social, intellectual and economic inequality for the Negro 
and any other segregated group. These inequalities give 
rise to and strengthen the effect of inequalities in other 
areas of human activity, for such inequalities compound 
each other.

Beyond this, we are concerned with the fact that segre­
gation has become an effective threat to the very founda­
tion of onr democratic way of life. If a State can require 
segregation in education for Negroes, it can also require 
it for Chinese, see G :h*j Lam v. Bice, 275 IT. 8. 78, for 
Mexitans. see BAsmAtst-'r School District v. Me mice, 161 
F. id 774. or for any arbitrarily selected group. 8ogre 
cation tnauttains the racist doctrine that undesirable social 
traits and. inferior mental capacities inhere not in the 
individual, hut in the group. This concept must be excised 
"ram the fabric of onr society. Certainly « first step is to 
remove it from onr law.

®  siawfti b% stntod finally that ttl ar© fully aware that 
by wntt nf and ft©

sepjiTAir 1 equal duel vine is the fear that a dostrae- 
tion ©f barriers ©f segregation will give rise I© iat- 
oreasad racial lenniom* We believe that the ugly preju- 
dictiK which create such tensions batten on segrscation



3

A decision by this Court eliminating racial segregation 
in education will strengthen the democratic relationships 
among the various groups in our population. This issue 
must be faced honestly and boldly.

Opinions Below

The judgment of the Supreme Court of the State of 
Texas refusing the application for writ of error to the 
Court of Civil Appeals for the Third District, dated Sep­
tember 29, 1948, without opinion, appears on page 466 of 
the record. The order, dated October 27, 1948, overruling 
the motion for a rehearing, without opinion, appears on 
page 471 of the record. The opinion of the Court of Civil 
Appeals, dated February 25, 1948, appears at page 445 of 
the record, and that of the District Court of Travis 
County, dated June 17, 1947, is reported at page 438.

Jurisdiction

Jurisdiction is invoked under Title 28, United Stntea 
Code, section 1257 (3).

Statement of J'act*

The petHjwjer ;o ihh w w , iiemm MttrUfh > vwenti, 
jui gjit adumaou to A# Bdho&l ot Law *A the University 
of Texas. He eme&d&My met all (A the mmlenha quali­
fications, but the authorities o f the TTniversity denied him 
enrollment because he is a Negro.

In the State of Texas in accordance with statutory 
and constitutional provisions the maintenance of separate 
schools for whites and Negroes is compulsory. The



4

University of Texas Law School which Sweatt sought to 
enter is maintained for white students only.

On May 16,1946, Sweatt brought an action in mandamus 
in the District Court of Travis County, Texas, to compel 
the members of the Board of Regents of the University 
of Texas, and others, to admit him as a student. That 
court, after a hearing, entered an order finding that 
Sweatt was denied the equal protection of the laws since 
no provision had been made by the State of Texas for 
his legal training.

The District Court did not, however, grant the writ 
of mandamus but rather adjourned further consideration 
of the action until December 17, 1946, giving the respond­
ents six months time within which to produce a course of 
legal instruction substantially equivalent to that provided 
for white students at the University of Texas.

At the second hearing on the application for the writ, 
which took place December 17, 1946, the State of Texas 
attempted to show the availability of a law school for 
Sweatt by presenting to the court a copy of a resolution 
adopted November 27, 1946, by the Board of Directors of 
Texas A. & M. College to the effect that if Negro appli­
cants for law school training were to present proper evi­
dence of the required academic qualifications they would 
be admitted to a law school for Negroes to be established 
in Houston. Texas ter me semester beginning February 
194,. There was no evicen.ce produced, however, to show 
mat a .aw school for N egrres rad actuary been established.

On me rasis of mis representation at the December 
1 m rearing me court erterec a final order denying me 
petition.

Tims —icguient was set aside without opinion, bv tie  
qaum  i t  i t m  Appeals* aim me cause was remanded tor 
f irm e r  pm atedm is without prejudice t\> the right of any 
party.



5

Meanwhile, the State authorities established a separate 
Negro law school in premises rented in an office building in 
Austin, Texas, for a period to begin sometime in the latter 
part of February or early March 1947, and to end on 
August 31, 1947. A  description of the facilities provided 
for this law school is given in Point IV of the argument, 
infra.

In May 1947, by amendment and supplementation of 
the original pleadings, the petitioner and respondents 
joined issue on the question whether the establishment of 
this separate Negro law school during the period of pro­
ceedings on the appeal was sufficient compliance with the 
equal protection clause of the Fourteenth Amendment and, 
therefore, whether the refusal to admit Sweatt to the 
School of Law of the University of Texas was arbitrary 
and in violation of the Fourteenth Amendment.

The trial on this issue was held before the district 
court sitting without a jury. Judgment was rendered for 
respondents. This was affirmed on appeal to the Civil 
Court of Appeals. Writ of error was refused by the 
Supreme Court of the State of Texas.

Summary of Argument

The following arguments will be urged in this brief:

I. This Court has never before decided on the consti­
tutional validity of racial segregation in public education. 
The Court has, in did inn, signified its approval of the 
“ separate but equal”  doctrine as applied to education, 
but has never ruled specifically whether racial segrega­
tion in education is within (lie “ equal protection of the 
laws”  provision of the Fourteenth Amendment.



6

II. Racial segregation in public educational institu­
tions is an arbitrary and inadmissible classification under 
the “ equal protection”  clause of the Fourteenth Amend­
ment.

This Court has ruled that legislative classification 
based on race alone is a denial of equal protection except 
where the national safety is imperilled or there is a 
pressing public necessity. Racial segregation in public 
educational facilities is clearly not accompanied by any 
“ pressing public necessity”  and must, therefore, fall un­
der the ban of the Fourteenth Amendment.

III. The “ separate but equal doctrine”  originated by 
this Court in Plessg v, Ferguson had no basis in then- 
existing legal precedent and is an anachronism in the
xga: of present-day legal and sociological knowledge.

The eases cited by the majority of this Court to sup­
port its decision in tie ease of Plessg v. Ferguson set no 
precedent on the questions under consideration in the 
-ase v . e  m t :-  .: - - Vee sine cited the ■■separate 
Snrtt Jw h u ft o f  the PJcssy ease it has never since
:ecu. r-fMfxumred and affirmed by this Court, Xeither is 
the racial classification embodied in the statute under 
consideration justifiable as an exorcise of police poweT.

IV. Racial segregation in public education results in 
inequality and is a form of discrimination.

This Court has recently stricken down many forms of 
discrimination in such fields as housing, ownership of 
land, eligibility for employment and in jury duty. The 
Court has particularly opposed discriminatory practices 
“ rooted deeply in racial, economic and social antago­
nisms.”

The “ separate but equal”  doctrine urged here stresses 
that separation is not discrimination where physically



7

equal facilities are provided, but the ‘ ‘ separate but equal ’ ’ 
doctrine is a fiction which must be pierced. Segregation 
results in social, intellectual, physical and economic in­
equality and hence is discriminatory.

Social inequality is an inevitable concomitant of seg­
regation. The premise of Plessy v. Ferguson that segre­
gation does “ not necessarily imply the inferiority of either 
race to the other”  is invalid.

Intellectual inequality results where students in one 
racial group are separated from others so that they can­
not share in intellectual discussion in law classes, in law 
review work, in moot courts and the like.

The physical equality supposedly guaranteed by the 
“ separate but equal”  doctrine does not exist in fact. The 
physical facilities afforded white students in Texas are 
far superior to those provided for Xegroes, and the Uni­
versity of Texas Law School for white students is incom­
parably superior to the law school provided for Xegroes. 
Xor can physical equality in dual school systems be 
achieved in the future.

Economic inequality also inheres in racial segregation 
in education. The legal profession is peculiarly one in 
which social relationships lead to economic opportunities 
which shape a lawyer’s career. Xegroes denied the full­
est possible social relationships are deprived of economic 
rights.

Therefore, this Court is asked to overrule its decision 
in the case of Plessy v. Ferguson and to hold that racial 
segregation in public education is violative of the equal 
protection clause of the Fourteenth Amendment.



8

POINT I

The validity of racial segregation in public edu­
cational facilities has never before been decided by 
this Court.

This Court is here asked to determine the validity of 
constitutional and statutory provisions of the State of 
Texas which require racial segregation in public educa­
tional facilities. Despite the transcendent importance of 
the question, this Court has not yet ruled directly on the 
constitutionality of segregation in public education. It 
has decided similar problems, such as the validity of 
racial segregation in transportation and in housing. It 
has decided matters relating to educational segregation 
where the validity of segregation was assumed but not in 
question. But this Court has never before ruled flatly and 
specifically on the validity under the Fourteenth Amend­
ment of racial segregation in education.

Following the adoption in 1868 of the Fourteenth 
Amendment, the earliest case in which some reference was 
made by this Court to racial segregation in education was 
Hall v. DeCuir. 95 F. S. 185, which involved the validity 
of a Soaoe staoute prohibiting segregation by race in public 
carriers. That staooioe was declared unconstitutional as an 
improper rsguia.-l-:r. of foreign and interstate commerce, 
b  a  m—TnriiiHg, Mr. Jsstk« Clifford reviewed
wMt m m d  f l e  cndhsm s o f  a number o f State eases 
' : o a a ir iieu£ ore - of racial socrocnoicoo

■a edbrndlMmi « d  adbM  k  dictum that segi e ration in the 
jufffip schools did not violate the Fourteenth Amendment 
of ptysacaliT equal school facilities for Negroes were pre­
served.



9

In 1896 this Court decided Plessy v. Ferguson, 163 U. S. 
537, which sustained the constitutionality of a Louisiana 
statute which required public carriers to furnish separate 
but equal coach accommodations for whites and Negroes. 
The Court cited with approval several ancient State cases 
which had held that a State could require the segregation 
of racial groups in its educational system provided that 
facilities for all groups were physically equal.*

The constitutionality of “ separate but equal”  facilities 
in education was concededly not before the Court in either 
the Sail or the Plessy cases. Yet, although there was no 
basis for a discussion of equal facilities in education, and 
in spite of the fact that the statements of the Court were 
dicta, the Plessy case was subsequently employed by State 
and lower federal courts to proclaim the legality of segre­
gation in educational institutions. See cases cited in 46 
mich. l. rev. 639, 643 (1948).

Three years later, this Court decided Cumming v. 
County Board of Education, 175 U. S. 528. There, an in­
junction was sought to restrain the board of education from 
maintaining a high school for white children where none 
was maintained for Negro children. The State court had 
upheld the board of education, saying that its allocation of 
funds did not involve bad faith or abuse of discretion. In 
upholding the decision of the State court, Mr. Justice 
Harlan stated expressly that racial segregation in the 
school system of the State was not in issue.

The next case before this Court which involved com­
pulsory educational segregation was Perea College v. Ken­
tucky, 211 U. S. 45, wherein the validity of a State statute 
which prohibited domestic corporations from teaching 
white and Negro pupils in the same private educational in­
stitution was attacked. While the scope of the statute was

* See our fuller discussion of the Plessy case, Point Ml, infra.



10

broad enough to include individuals as well as corporations, 
this Court said, at 54,

—it is unnecessary for us to consider anything more 
than the question of its validity as applied to corpora­
tions. * * * Even if it were conceded that its assertion 
of power over individuals cannot be sustained, still it 
must be upheld so far as it restrains corporations.

This Court supported the reasoning of the State court 
that the statute could be upheld as coming within the power 
of a State over one of its own corporate creatures. The 
statute was considered not to have embodied a deprivation 
of property rights. The rights of individuals were not 
considered.

Not until 1927 did racial segregation in educational in­
stitutions again become the subject of controversy before 
this Court. In Gong Lum v. Rice, 275 IT. S. 78 a Chinese 
contested the right of the State of Mississippi to exclude 
her from the high school for whites, and to assign her to 
the colored school under the State’s segregated school 
system. The State contended that under its constitutional 
provision requiring that separate schools he maintained 
fo r  d f l b e t  o f  l i e  l U e  and colored races, the plaintiff 
jocLi not insist :u heang i.oe.sed with the whites and that 
the legisiitnr-e was not compelled to provide separate 
srhoojs for each of the colored races.

The issue of segregation was not presented in this case. 
The plaintiff accepted the system of segregation in the 
public schools of the State, but contested her classification 
within that system. Since she did not contest the practice 
of segregating Negroes from whites, segregation was not 
in question.

Nor was the validity of segregation before the Court 
in the case of Missouri ex rel. Gaines v. Canada, 305 U. S. 
337 in which the petitioner was refused admission to the 
University of Missouri Law School, a State supported in­
stitution, solely because be was a Negro. The State, having



11

no law school, for Negroes, sought to fulfill its obligation to 
provide equal educational facilities by paying the peti­
tioner ’s tuition for a legal education in another State. This 
the Court held did not satisfy the constitutional require­
ment. It said that the petitioner was entitled to be ad­
mitted to the University of Missouri Law School in the 
absence of other and proper provision for his legal train­
ing within the State of Missouri.

Again, the issue was not segregation, but whether an 
otherwise qualified Negro applicant for law training could 
be excluded from the only State supported law school. 
This Court assumed that the validity of equal facilities in 
racially separate schools was settled by earlier decisions 
and cited the Plessy case and McCabe v. Atchison, T. & 
S. F. R. Co., 235 U. S. 151, both of which involved segre­
gation only in public carriers, and the Gong Lum case. 
But the validity of a state requirement of segregation was 
not decided.

The most recent consideration of this problem was in 
1948 in the University of Oklahoma Law School case, 
Sipuel v. Board of Regents of the University of Oklahoma. 
332 U. S. 631. This Court, in a per curiam decision, said 
that the State must provide law school facilities for the 
Negro petitioner “ in conformity with the equal protection 
clause of the Fourteenth Amendment and provide it as soon 
as it does for applicants of any other group”  (at 633). 
The facts in the Sipuel case were similar to those in the 
Gaines case, in that no law school facilities were afforded 
Negroes by the State of Oklahoma.

Segregation was not at issue in (lie Sipuel case. This 
Court stated in Fisher v. Hurst, 333 IT. S. 147, 150, that:

The petition for certiorari in Sipuel v. University of 
Oklahoma did not present the issue whether a state 
might not satisfy the equal protection clause of the 
Fourteenth Amendment by establishing a separate law 
school for Negroes. On submission, we were clear it 
was not an issue here.



12

In no case previously before this Court in which racial 
separation in education has been the subject of comment 
in an opinion has there been a record presented upon which 
the Court felt compelled to take cognizance of the issue of 
segregation per se in State supported educational insti­
tutions.

The record in this case presents the issue squarely: 
Does segregation in State supported educational in­

stitutions meet the requirements of the “ equal protection”  
clause of the Fourteenth Amendment!

POINT II

Racial segregation in public educational institu­
tions is an arbitrary and inadmissible classification 
under the equal protection clause of the Fourteenth 
Amendment.

In determining whether a particular legislative classi­
fication meets the requirements of the “ equal protection”  
clause of the Fourteenth Amendment, this Court has 
applied two tests: first, whether the classification statute 
has a constitutionally permissible objective, and, second, 
whether the classification scheme is based upon differences 
between the groups classified which bear a substantial 
relation to an objective of the legislation.

B efore this Court would invalidate legislative elassi- 
CkbAmb it has Ir a  ■eeeosary to show a lack of any pos- 
aHe jprraiuls for hSrf is the ability of the statute to 
«Ht»s desired rad fegitnafte ends. This rule was applied 
nr L,mr,.£.{•? t. Xatural Ca-rbomf Cfas Co., 220 IT. 8L SI, 
7A in the following terms:

one who assails the classification * * * must, 
carry the burden of showing that it does not rest 
upon any reasonable basis, but is essentially arbi­
trary.



13

Moreover, the presumption of constitntionality and the 
rational basis test which have been applied to classifica­
tion statutes have been decisive to the degree that the 
Court has refused to invalidate such statutes unless there 
was a clear showing that the legislature was “ manifestly 
wrong”  in its action. See Ohio ex rel. Clarice v. Dechen- 
bach, 274 U. S. 392, 397; Patsone v. Penna., 232 U. S. 138, 
144.

While these tests have always been, and are operative 
as to other legislative classifications, the history of the 
Court’s rulings involving the constitutional validity of 
governmental action based upon racial distinctions reveals 
that as to cases concerned with racial discrimination and 
other civil rights and liberties, the above presumptions 
are generally not applied. Thomas v. Collins, 323 U. S. 
516.

The propriety of classification on the basis of race has 
been the subject of separate and special vigilance. The 
Court has increasingly in recent years made searching 
inquiry into the sufficiency of any grounds asserted as 
justification for governmental distinctions based on race 
or color. It has stated that “ all legislative restrictions 
which curtail the civil rights of a single race group are 
immediately suspect.”  Korematsu v. U. 8., 323 L . S. 214, 
216. “ Only the most exceptional circumstances can ex­
cuse discrimination on that basis in the face of the equal 
protection clause.”  Oyama v. California. 332 l . S. 633. 
646. This Court has recognized that, as a general rale,

Distinctions between citizens solely because of 
their ancestry are by their very nature odious to a 
free people whose institutions are founded upon the 
doctrine of equality. For that reason legislative 
classification or discrimination based on race alone 
has often been held to be a denial of equal protec­
tion. Ilirabayashi v. IJ. 8., 320 IT, 8, 81, 100.



14

In the application of these principles, the Court has 
consistently declared governmental classification based on 
race or color to he constitutionally invalid.

This Court has struck down governmental action of a 
discriminatory character relating to the exclusion of 
Negroes from grand and petit juries. Strauder v. West 
Virginia. 100 U. S. 303; Hill v. Texas, 316 U. S. 400; it 
has ruled that the right to qualify as a voter, even in 
primaries, may not he subject to racial classification. 
**I* too clear for extended argument,”  said this Court, 
"tea* color cannot be made the basis of a statutory classi­
fication affecting the right set up in this case”  Nixon v. 
Herndon. 273 I . S. 536, 541. In a more recent decision, 
this Court has held that the exclusion of Negroes from 
voting in a primary election by a political party consti­
tuted a denial by the State of the right to vote. Smith v. 
Allwright, 321 U. S. 649. This Court has also struck down 
laws which in their administration have been revealed as 
a racial classification resulting in the denial to persons 
of a particular race or color the right to carry on a busi­
ness or calling, Tick Wo v. Hopkins, 118 U. S. 356; Yu 
Cong Eng v. Trinidad, 271 U. S. 500; Takahashi v. Fish 
and Game Commission, 334 U. S. 410.

This Court has protected the right to acquire, use and 
dispose of real property from infringement by State action 
effecting race classification. In Buchanan v. Warley, 245 
IT. S. 60, which involved a racial residential zoning ordi­
nance, the State invoked its authority to pass laws in the 
exercise of its police power, and urged that this compul­
sory separation of the races in habitation be sustained 
because it would “ promote the public peace by prevent­
ing race conflicts”  (at 81). This Court rejected that con­
tention, saying:

The authority of the state to pass laws in the 
exercise of the police power * * * is very broad * * * 
[and] the exercise of this power is not to be inter­
fered with by the courts where it is within the scope



15

of legislative authority and the means adopted rea­
sonably tend to accomplish a lawful purpose. But it 
is equally well established that the police power * * * 
cannot justify the passage of a law or ordinance 
which runs counter to the limitations of the Federal 
Constitution * * *. (at 74).

The Court rejected the consideration of the police power 
of the State, however legitimate the exercise of it, to jus­
tify a racial classification where rights created or pro­
tected by the Constitution were involved.

In a more recent case, Shelley v. Kraemer, 334 U. S. 1, 
this Court, by unanimous decision, held that the enforce­
ment of racial restrictive covenants by State courts is 
State action, prohibited by the equal protection clause of 
the Fourteenth Amendment. In the course of its decision, 
the Court measurably strengthened the equal protection 
clause as a formidable barrier to restrictions having the 
effect of racial segregation. The contention was there 
pressed that since the State courts stand ready to enforce 
racial covenants excluding white persons from occupancy 
or ownership, enforcement of covenants excluding Ne­
groes is not a denial of equal protection. This Court 
rejected the equality of application argument, decisively 
dismissing it in the following language:

This contention does not bear scrutiny. * * * The 
rights created by the first section of the Fourteenth 
Amendment are, by its terms, guaranteed to the in­
dividual. The rights established are personal rights. 
It is, therefore, no answer to these petitioners to say 
that the courts may also be induced to deny while 
persons rights of ownership and occupancy on grounds 
of race or color. Equal protection of the laws is not, 
achieved through indiscriminate imposition of in 
equalities, (at 21, 22).



16

There has been but one recent deviation from this 
trend in civil rights cases. This Court has stated that 
“ in the crisis of war and of threatened invasion”  when 
the national safety is imperilled, it will permit a racial 
classification by the Federal government. In Hirabayashi 
v. U. S., swpra, which involved a prosecution for failure 
to obey a curfew order directed against citizens of Jap­
anese ancestry, and in Korematsu v. U. S., supra, where a 
governmental order directing the exclusion of all persons 
of Japanese ancestry from the West Coast military area 
was contested, the Court recognized an overriding pressing 
public urgency in time of war. In doing so it made clear, 
however, that this was an extraordinary exception. “ Leg­
islative classification or discrimination based on race alone 
has often been held to he a denial of equal protection. 
* * * We may assume” , continued the Court, “ that these 
considerations would be controlling here were it not for 
the fact that the danger of espionage and sabotage, in 
time of war and of threatened invasion”  has made neces­
sary this racial classification, which “ is not to he con­
demned merely because in other and in most circum­
stances racial distinctions are irrelevant.”  Hirabayashi 
v. U. S., supra, at 100, 101.

State laws providing for racial segregation in public 
educational facilities are clearly not accompanied by any 
“ pressing public necessity” . Rather, there is a pressing 
public necessity to give all American citizens their due 
equality of opportunity to utilize educational facilities 
established by the state for its inhabitants. The denial of 
such equality of opportunity serves only to create public 
unrest and disillusionment on the part of those denied in 
the strength and honesty of our democratic system of 
government. It serves also to weaken our efforts to pre­
serve peace and extend democracy abroad by exposing our 
government’s earnest efforts in this direction to a charge 
of hypocrisy.



17

It is argued by those who seek to justify racial segre­
gation that this Court’s declaration against the constitu­
tionality of State statutes requiring racial segregation 
would serve to touch off an explosion in some parts of our 
country. But among those who raise this bogey are many 
who do so for ulterior reasons, seeking to protect special 
privileges which they have seized as members of the 
favored racial group. Further, where segregation has been 
voluntarily abandoned in State-provided higher education 
as in Arkansas and Kentucky, the dire results predicted 
have failed to come to pass. And even if disorder does re­
sult, such disorder cannot justify the failure of the State 
to protect the constitutional rights of all of its citizens. 
Terminiello v. City of Chicago, 337 U. S. 1.

It is noteworthy that since the termination of the war 
our federal courts have gone out of their way to condemn 
the action of the Army in ousting persons of Japanese 
ancestry from the West Coast military area solely on the 
basis of their national origin. Acheson v. Murakami, 176 F. 
(2d) 953.

POINT III

The “separate but equal” doctrine originated by 
this Court in Plessy v. Ferguson had no basis in then- 
existing legal precedent, and is an anachronism in the 
light of present-day legal and sociological knowledge.

Apart from the wartime “ national peril”  decisions, 
which are clearly inapplicable here, only one unfavorable 
precedent exists. This is Plessy v. Ferguson, which 
enunciated the ‘ ‘ separate but equal ’ ’ doctrine in 1896. This 
doctrine maintains that facilities can be constitutionally 
separate, or segregated, provided there is physical equality.

We have already pointed out that the Plessy case, in­
volving railroad transportation, does not apply to questions 
of public education. But, assuming arguendo that Plessy



18

could apply, we submit that the Plessy case originally had 
no basis in legal precedent, and moreover is an anachronism 
in the light of present-day legal and sociological knowledge. 
The more recent decisions of this Court affecting racial 
classification have effectively undermined its authority. 
In consequence, the Plessy case is no longer good law, and 
is not controlling on the question of the constitutional 
validity of racial segregation.

Plessy v. Ferguson held that a Louisiana “ separate- 
coach*'statute requiring “ equal accommodations for white 
and Negro passengers”  did not violate the command of 
the Fourteenth Amendment that no State shall deny to 
any person the equal protection of the laws, because of 
race or color.

In the Zhtsst? decision, three cases were cited as 
authority for the constitutionality of statutes requiring 
separation of the two races in “ schools, theatres, and rail­
way carriers.”  None were in point. Hall v. DeCuir, 95 
U. S. 485, was concerned solely with the question of 
whether a State statute prohibiting segregation was in 
violation of the Interstate Commerce Clause of the Fed­
eral Constitution, and did not deal with the interpretation 
of the Fourteenth Amendment or its safeguards. The 
Civil Bights Cases, 109 U. S. 3, invalidated the Federal 
Civil Rights Act of March 1, 1875 on the sole basis that 
Congress had no authority to pass legislation under the 
Fourteenth Amendment, which was directed against dis­
crimination by private persons rather than by State action. 
Finally, Louisville, New Orleans, and Texas Ry. Co. v. 
Mississippi, 133 U. S. 587, was another case concerned 
solely with the effect of the Interstate Commerce Clause 
on State legislation. It held that a State segregation stat­
ute in terms applicable only to intrastate transportation 
did not unduly burden interstate commerce.

The majority in the Plessy case (p. 548) claimed that 
“ statutes for the separation of the two races upon public



19

conveyances”  were held to be constitutional in twelve 
named cases. An examination of these cases does not 
support the Court’s statement.

The first two cases cited by the Court, West Chester etc. 
Ry. v. Miles, 55 Penn St. 209, and Day v. Owens, 5 Mich. 520, 
were pre-Civil War decisions, and hence could have set 
no precedent on the question. The West Chester case was a 
Pennsylvania common law action, which turned upon the 
reasonableness of segregation under a regulation of the 
carrier. The majority rested its conclusion on “ the law 
of races, established by the Creator Himself.”

Chicago & N. W. Ry. Co. v. Williams, 55 111. 185, and 
Chesapeake, 0. & 8. Ry. Co. v. Wells, 85 Tenn. 613, 
although decided after the Fourteenth Amendment was 
passed, do not contain any discussion of the impact of 
that Amendment on the question. The Illinois court in the 
first case merely termed the discrimination unlawful, and 
awarded damages. In the Chesapeake case, the Tennessee 
court, in a one-paragraph opinion, held that the Kailway 
had acted reasonably under a State statute, and dismissed 
the complaint. Similarly, in Houck v. Southern Pac. Ry. 
Co., 38 Fed. Rep. 226, the court discussed the facts, 
and summarily awarded damages without even considering 
the Fourteenth Amendment.

In The 8m , 22 Fed. Rep. 483, Logwood etc. v. Mem­
phis etc. Ry. Co., 23 Fed. Rep. 483, and McOuinn v. Forbes, 
37 Fed. Rep. 639, there were involved only discussions of 
common law principles and private regulations; not of 
State statutes. The Sue was an action in Admiralty, 
involving transportation facilities employed in public navi­
gable waters between points in Maryland and Virginia. 
The court held that only the federal government could 
legislate in this field, but since it had failed to do so, the 
owners of the boat could adopt such reasonable regulations



2 0

as the common law allowed. One of the restrictions im­
posed by the common law was that “ accommodations equal 
in comfort and safety must be afforded to all alike who 
pay the same price.”  Therefore the court’s holding that 
the accommodations offered to the plaintiff, a Negro pas­
senger, were unequal, and its award of damages, was based 
on an interpretation of common law, not of a State statute.

Logwood etc. v. Memphis etc. Ry. Co., involved intra­
state railway transportation. The court simply charged 
the jury to adopt the rule of The Sue as proper law. Mc- 
Guinn v. Forbes was another action in Admiralty involving 
a steamer travelling between Maryland and Yirginia. The 
holding in the case was that the plaintiff’s proof was in­
sufficient to entitle him to a verdict. Again, The Sue was 
cited, and no constitutional issue was raised.

People v. King, 110 N. Y. 418, involved a conviction un­
der the New York Penal Code provision forbidding dis­
crimination at amusement parks. The provision was sus­
tained against constitutional objection as a valid exercise 
of the police power, in light of “ the War Amendments.”  
Thus this case in no way supports the proposition for which 
it was cited by the majority. It is interesting to note that 
Justice Peckham, one of the majority in the Plessy case, 
was on the New York Bench at this time, and dissented 
without opinion in the King case.

The last two cases cited as authority in the Plessy 
majority opinion were Interstate Commerce Commission 
decisions, and involved the same facts and parties. Heard v. 
Georgia Ry. Co., 1 ICCR 428, was a holding that Section 3 
of the Interstate Commerce Act had been violated by the 
discriminatory practices of the defendant. No State statute, 
and hence no constitutional discussion was involved. Heard 
v. Georgia Ry. Co., 3 ICCR 111, merely reenforced the



21

prior holding. See, Edward F. Waite, The Negro in the 
Supreme Court, 30 Minn. Law Review 219, 248-251 (March, 
1946).

Additional lines of cases cited by the majority in the 
Plessy case involved the existence of “ separate schools for 
white and colored children, which has been held to be a 
valid exercise of the legislative power * * * ”  (p. 544), and 
“ Laws forbidding the intermarriage of the two races’ ’ 
(p. 545). There is serious doubt of the validity of laws 
forbidding the intermarriage of races. The only Supreme 
Court decision on the subject was Pace v. Alabama, 106 
U. S. 583, which is readily distinguishable as involving an 
indictment for the crime of “ adultery or fornication’ ’ be­
tween persons of different races; where the statute con­
taining this provision had a lesser punishment for the same 
crime between persons of the same race. The most recent 
decision on this subject was a very carefully reasoned one 
by the highest court of the State of California, which in­
validated an anti-miscegenation law as in violation of the 
Fourteenth Amendment, Perez v. Sharp, 32 Calif. (2d) 
711.

Although many cases have cited the “ separate but 
equal”  doctrine of the Plessy case, it has never since been 
reexamined and affirmed by the Court.

The first time the Supreme Court cited the “ Plessy 
doctrine”  was in Atchison, Topeka etc. Ry. v. Mathews, 174 
U. S. 96, 105. The holding therein was that the Plessy de­
cision did not forbid the imposition of “ unequal burdens”  
on specified corporations; and that the State legislature 
could validly allow the plaintiff in a suit against the rail­
roads for damages caused by fire, to obtain attorney’s fees. 
Racial discrimination or segregation statutes were not 
involved in the case.

In Chesapeake <& Ohio Ry. v. Kentucky, 179 IT. S. 388, 
392, the Court was concerned solely with the application of 
the Interstate Commerce clause. A Kentucky “ separate-



2 2

coach statute”  was construed to apply solely to passengers 
both embarking and departing from depots within the State; 
the Court then saying, ‘ ‘ and so construing it, there can be 
no doubt as to its constitutionality. Plessy v. Ferguson.”  
Similarly, the Roanoke, 189 U. S. 185, 198, dealt primarily 
with the Interstate Commerce issue. Therein it was held 
that Congress, and not the states, could legislate regarding 
certain navigable waterways. The Court distinguished 
Plessy as involving State law “ requiring separate car­
riages for the white and colored races [which] were sus­
tained upon the ground that they applied only between 
places in the same state. ’ ’ Hence, neither of these decisions 
in any way validated that part of the majority decision in 
the Plessy case which purported to interpret the Four­
teenth Amendment.

Clyatt v. U. S., 197 U. S. 207, 218, cited the Plessy case 
solely to uphold Congressional legislation punishing “ the 
arrest of any person in the Territory of New Mexico to 
a condition of involuntary servitude ’ ’ against attack on 
the grounds that it fell outside the scope of the Thirteenth 
Amendment. The Court quoted the statement that “ this 
[the Thirteenth] Amendment was said in the Slaughter 
House Cases to have been primarily intended to abolish 
slavery * * * but that it equally forbade Mexican peonage 
or the Chinese coolie trade when they amounted to slavery 
or involuntary servitude, and that the use of the word 
‘ servitude’ was intended to prohibit the use of all forms 
of involuntary slavery, of whatever class or name. ’ ’ It was 
not at all concerned with the Fourteenth Amendment.

The Court in Chiles v. Chesapeake & 0. By. Co., 218 
U. S. 71, 77, emphasized the fact that it was dealing with 
“ the act of a private person, to wit, the Bailway Co. # * * 
and we must keep in mind that we are not dealing with 
the law of a state.”  The Court thus escaped facing the 
issue of the Interstate Commerce Clause, as well as the



23

issue of the Fourteenth Amendment as applied to rail­
roads. On page 77 it quoted from the Plessy language 
the phrase “ the established usages, customs and tradi­
tions of the people”  solely as a “ test of reasonableness 
of the regulations of a carrier.”

McCabe v. Atchison, T. <& 8. F. By. Co., 235 U. S. 151, 
160, involved the constitutionality of a clause in the Okla­
homa “ separate-coach statute”  which provided that “ the 
provision requiring equal accommodations (earlier in the 
statute) should not be construed to prevent railway com­
panies from hauling sleeping cars, dining or chair cars 
attached to their trains to be used exclusively by either 
white or negro passengers, separately or jointly.”  The 
defense maintained that the Oklahoma legislature could 
take note of the fact that the number of Negroes requir­
ing such service did not justify the use of separate facili­
ties in such cars.

The actual holding in the McCabe case was that the 
petitioner failed to show sufficient standing to obtain in­
junctive relief. However, in addition, the Court rejected 
the defense argument, saying that it “ makes the consti­
tutional right depend upon the number of persons who 
may be discriminated against, whereas the essence of the 
constitutional right is that it is a personal one.”  By way 
of further dictum, on page 160, the Court noted that 
“ there was no reason to doubt”  the lower court’s finding 
that “ it has been decided by this court, so that the ques­
tion could no longer be considered an open one, that it 
was not an infraction of the Fourteenth Amendment for 
a state to require separate, but equal, accommodations 
for the two races. Plessy v. Ferguson.”  This dictum 
was not only unnecessary for the decision in the case, 
but was irrelevant to the constitutional issue, in that 
by finding a lack of equality, the Court held that the 
“ separate but equal”  doctrine spelled out by the majority 
in the Plessy case was inapplicable. Hence there was no 
need for the Court to re-examine it.



24

Butler v. Perry, Sheriff of Columbia County, Fla., 240 
U. S. 328, 333, was another case which cited the Plessy 
case in connection with the Thirteenth Amendment. The 
issne involved was the constitutionality of a Florida stat­
ute providing that all able bodied men residing in Colum­
bia County would be subject to call to work on the public 
roads in the county. On page 333 the Court quoted the 
Plessy decision to show that the Thirteenth Amendment 
was designed “ to cover those forms of compulsory labor 
akin to African slavery, * * * and certainly was not in­
tended to interdict enforcement of those duties which in­
dividuals owe to the state.”

The case of Buchanan v. Warley, 245 U. S. 60, 79, 
supra, which cites the Plessy opinion, is indicative of the 
tendency of judicial sentiment to depart from the “ sep­
arate but equal”  doctrine. In that case, the plaintiff, a 
white landowner, contracted to sell a plot of land to the 
defendant, a Negro. The defendant refused to pay on the 
grounds that a city ordinance of Louisville, which pro­
hibited colored persons from occupying houses in a block 
where the greater number of houses were occupied by 
whites, made performance of the contract impossible. 
In holding that this ordinance was in violation of the 
Fourteenth Amendment, the Court distinguished the Plessy 
case on the ground that in that case a “ classification of 
accommodations was permitted upon the basis of equality 
for both races.”  However, the Court did not state that 
there was inequality in the case before it, but chose to 
rest its decision on broader grounds. On page 81 the 
Court said “ But in view of the rights secured by the Four­
teenth Amendment to the Federal Constitution, such legis­
lation [as upheld in the Plessy case] must have its limi­
tation, and cannot be sustained where the exercise of 
authority exceeds the restraints of the Constitution. We 
think these limitations are exceeded in laws and ordi­
nances of the character now before us.”  And again, on



25

page 76, that "the chief inducement to the passage of the 
[Fourteenth] Amendment was the desire to extend federal 
protection to the recently emancipated race from un­
friendly and discriminating legislation by the States.”

In Gong Lum v. Rice, 275 U. S. 78, 86, this Court held 
that a child of Chinese blood, horn in, and a citizen of, the 
United States, is not denied the equal protection of the 
laws by being classed by a State among the colored races 
who are assigned to public schools separate from those 
provided for the whites, when equal facilities for educa­
tion are afforded to both classes. The Court was concerned 
primarily with the problem of construing the Plessy doc­
trine to cover the facts of the case. It relied upon the 
authority of the old State decisions cited in the Plessy 
case.

Bryant v. Zimmerman, 278 U. S. 63, 70, involved a 
proceeding in habeas corpus in a State court where the 
detention on a criminal charge was alleged to be in vio­
lation of the United States Constitution. This Court cited 
the Plessy case as a holding that such a proceeding is a 
"su it”  within the meaning of the jurisdictional statute, 
and that an order of the State court of last resort, refus­
ing to discharge the prisoner, is a final judgment in that 
action, and is, therefore, subject to review. That case, of 
course, was in no way related to the Fourteenth Amend­
ment.

Similarly, in Colgate v. Harvey, 296 U. S. 404, 446, the 
dissenting opinion cited the Plessy case only to show the 
reluctance of the Supreme Court to extend the coverage of 
the "privileges and immunities”  clause of the Fourteenth 
Amendment.

In Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 
344, the Court, although talking the language of the Gong 
Lum and Plessy cases, found that there was "unequal”



2 6

legal instruction afforded in Missouri, and hence did not 
find it necessary to re-examine the old decisions.

Thus it appears that this Court has never directly 
affirmed or re-examined the decision in Plessy v. Fer­
guson, and that to overrule it now would not result in the 
overthrow of a well-established line of legal precedents.

Justification for the legislative classification in the 
Plessy case was that it was a valid exercise of the police 
power of the State, and that it was not discriminatory 
because it applied equally to both races. As to the exer­
cise of police power, the Court said, at 544,

Laws permitting, and even requiring, their sepa­
ration in places where they are likely to be brought 
into contact * * * have been generally, if not uni­
versally. recognized as within the competency of the 
state legislatures in the exercise of their police 
power.

This Court has since refused to recognize the police 
rower State as a justification for racial legislation.
Brndhsmesr, u. W srk-'i. supra, is a complete answer (p. 74):

The police power, broad as it is, cannot justify 
the passage of a law or ordinance which runs counter 
to the limitations of the Federal Constitution.

The principal ground of decision in the Plessy case, 
that there is no discrimination where the separate facilities 
furnished to both races are on an equal basis, is open to 
attack on several counts.

In the first place, the Plessy case assumed that segre­
gated facilities can he equal. As we have shown, the 
Court has since the Plessy case rejected the claim that 
there is any presumption of constitutionality attaching 
to such a statute. Rather, it has said that racial classifi­
cation laws must be viewed with great suspicion and bear



27

the closest scrutiny. They must overcome the strong 
inference of unconstitutionality. The Court would not 
today accept the factual assumption of the Plessy case 
without a showing that it rests upon a reasonable basis.

Second, the fact of discriminatory application of “ se­
parate but equal”  in the field of education is a knowledge 
so common and universal, that the Court cannot but dis­
miss as unfounded the assumption of Plessy, and take 
judicial notice that racial segregation in education, wher­
ever applied, is administered with an unequal hand and 
is unequal in result.

In Washington, D. C., our national capital, these facts 
have been demonstrated recently by a survey of the segre­
gated school system in effect there. The survey was con­
ducted pursuant to a request by Congress by a “ person 
qualified by training and experience in the field of public- 
school education”  (62 Stat. 542). Professor George D. 
Strayer of Columbia University was assisted by a staff 
of 22 specialists in his study. The findings of the survey 
are embodied in a report submitted to Congress, Report 
of a Survey of the Public Schools of the District of 
Columbia Conducted Under the Auspices of the Chairmen 
of the Subcommittees on District of Columbia Appropria­
tions of the Respective Appropriations Committees of 
the Senate and House of Representatives. Washington, 
Government Printing Office, 1949. The facts contained 
in this report demonstrate beyond doubt the inequality of 
the white and colored public school systems of the District 
of Colombia. If efforts to achieve a “ separate but 
equal”  -segregated school system have failed in our 
nation's capital where it h  subject to the control of our 
national Congress, car, it possibly succeed in those areas 
where a system of caste and race privilege is deeply 
intrenched ?

Third, the expenditure by a State of its educational 
funds for racially segregated schooling will necessarily 
result in inferior quality and quantity of schooling for



28

both races, than if the same funds are spent for unsegre­
gated education. “ Separate but equal”  in education 
results in an inferiority of facilities for both races.

Legislative classification in educational facilities on the 
basis of race or color must therefore fall, as constitu­
tionally invalid, as an arbitrary and inadmissible classifi­
cation under the “ equal protection”  clause. The racial 
distinction is “ irrelevant and therefore prohibited.”  It 
is based upon factors which reflect concepts of racial 
superiority and inferiority and is thus rendered irrational 
as a justification under the Constitution. The decision of 
the major case supporting it was erroneous when originally 
decided, and has since been implicitly repudiated numerous 
times by this Court. A  final and open repudiation is in 
order.

POINT IV

Segregation necessarily imports discrimination 
and therefore violates the requirements of the Four­
teenth Amendment.

The State of Texas, by constitutional provision .Art. 
YU. See. 71 and statutory enactment (Eevised Civil Stat­
utes. Title 49. Chap. 19. Art. 2900) stipulates that separate 
schools be provided for white and colored students, "and 
impartial provision shall he made for both races. ’ ’

The contention is raised that, since the State law in­
sures physical equality of treatment within a segregated 
system, no violation of the equal protection of the laws is 
involved. Where a specific instance of inequality is proven, 
the remedy should be merely to “ equalize” ,—either by 
improving the educational facilities for Negroes, or by 
worsening those for whites to the level provided for 
Negroes.

This reasoning does not have even a superficial appear­
ance of validity. Inherent therein are the erroneous as­



29

sumptions that the State may, by virtue of its police power, 
establish racial classifications, and that there are differ­
ences between the two races which warrant making such 
classification. These contentions are dealt with elsewhere 
in this brief.

What we are concerned with here is the false assump­
tion that, in the segregation of the races in educational 
facilities, there can be attained the equality of treatment 
which the Fourteenth Amendment requires. It is our con­
tention that educational facilities for Negroes in segregated 
areas have never been equal and could not possibly achieve 
an equality which would satisfy the dictate of the “ equal 
protection”  clause of the Fourteenth Amendment.

In Oyama v. California, 332 U. S. 633, 636, Chief Justice 
Vinson made it clear that this Court may take cognizance 
of actual conditions and deal with realities. He said:

In approaching cases, such as this one, in which 
federal constitutional rights are asserted, it is incum­
bent on us to inquire not merely whether those rights 
have been denied in express terms, but also whether 
they have been denied in substance and effect. We 
must review independently both the legal issues and 
those factual matters with which they are co-mingled.

(1 ) Equality is in fact impossible in racially segregated 
public educational facilities.

WTterever racial segregation in education lias been re­
quired by the State, the physical educational facilities al 
forded Negroes have been substantially and uniformly 
inferior and unequal to those enjoyed by whites.

The di>.par:ty hi physical facilities ban been so great 
and so universally a concomitant of the Mg >• yated *f*tw  
that it need b&rdfy he preened here by extern we dee®- 
mentation.



30

Expert testimony in the record shows that the State 
of Texas regnlarly spends substantially less for Negro 
than for white education. The total assets of white insti­
tutions of higher learning amount to $28.66 for each white 
person in the State, but the assets of Negro schools amount 
to only $6.40 per Negro. The whites have almost four and 
one-half times as much in total educational institutional 
assets per capita of the population as do the Negroes 
{K. 241).

In 1943-44. a typical year, Texas appropriated approxi­
mately Sll.X'i.AC in State, county and district funds for 
higher edtaeathm. Of this amount, about $10,800,000 went 
to white institutions, or 81.98 per capita of white popula­
tions ; the balance went to Negro institutions, or the equiva­
lent of ih. per capita of Negro population in the State. 
On this basis, white institutions of higher learning received 
eight times as much as Negro institutions (E. 246).

The inequality in physical facilities is even far more 
pervasive than the statistics on appropriations for edu­
cation by the State indicate. The testimony in the trial 
court showed that the State of Texas provided a law school 
for the petitioner by leasing a suite of three rooms and 
toilet facilities in an office building, after the commence­
ment of the action, for a period beginning March 1, 
1947. and ending August 31st of that same year (B. 29, 
41b in the semi-basement of the building (B, 88). One 
room was to be an office and reading room and the other 
two were intended as classrooms. There was no private 
office or faculty room for any instructor, for administra­
tive personnel or for a dean (E. 47). Nor was there space 
for a library consistent with even the minimum needs of a 
law school. Some 200 text hooks were available on the 
premises to serve as a library (E. 21). There was no 
librarian (E. 96).

There was no provision for scholarships, prizes, par­
ticipation in the production for the Texas Law Eeview, 
participation in the legal aid clinic, or opportunity to join



31

any honorary law society, such as the Order of the 
Coif, all of which were features of the School of Law of 
the University of Texas and consequently available only 
to white students (R. 103-105).

The faculty of the “ school”  offered to the petitioner 
consisted of three instructors assigned part-time from the 
University of Texas Law School (R. 92-93). Admittedly, 
the school established for the petitioner did not meet the 
requirements set by the Association of the American Law 
Schools for accreditation (R. 92).

The State of Texas contends that this racially segre­
gated law school affords facilities equal to those enjoyed 
by white students at the University of Texas Law School. 
But it is quite obvious that the Negro law school cannot 
possibly afford even a minimal legal education. To claim 
that it is “ equal”  to the University of Texas Law School 
is sheer hypocrisy.

The treatment afforded Mr. Sweatt by the State of 
Texas is by no means a unique example of the treatment 
accorded Negroes in educational institutions of the South 
under the guise of equality of segregated facilities. In 
every instance of segregation in practice there are pro­
vided for Negro citizens fewer educational opportunities, 
and educational opportunities of poorer quality than 
are afforded to white citizens. The deficiencies are syste- 
matie and all-pervading.

This is not confined to the level of higher education, 
nor to the State of Texas. The pattern is (he same when­
ever racially segregated schools exist.

In the generation from 1900 to 1930 the disparity be 
tween the provision of public educational facilities t>r 
white and Negro children, where separate schools an-, 
legally mandatory, has increased at a tremendous ram 
“ In 1900, the disparity in the per capita expenditures 
upon the two racial groups was only 60 per cent in fa- 
of whites, but in 1930 this disparity had increased to f V  
per cent.”  (Thompson, Chas. H., Court Action t/V 0*1 v



32

Reasonable Alternative to Remedy the Immediate Abuses 
of the Negro Separate School, 4 J. of Negro Ed. 419 
(1935) ).

For the ten year period, 1918-1928, $270,500,000 was 
spent on new school facilities by eight Southern states 
(including Texas) for white children, and $29,500,000 for 
Negro children. This is a ratio of 9 to 1 in favor of whites 
on appropriations, against a population ratio of 2 to 1 
in favor of whites. (Newbold, N. C., Common Schools 
for Negroes in the South, The Annals of the Amer. Acad, 
of Polit. & Soc. Science, Yol. 140, No. 229, P. 209, 218 
219 (Nov. 1928) ).

Throughout the South there is a wide discrepancy in 
per capita expenditure for Negro teachers as compared 
to that for white. For Texas, in 1936, for every $1. spent 
for teachers' salaries for white students, only 61 r was ex­
pended for salaries tor Negro students. This
ratio was the same as the average for the 17 southern 
states. By 1945. white teachers" salaries were in excess 
of Negro by 45*1. (Boykin, Leander L., The Status and 
Trends of Differentiate Between White and Negro Teach­
ers' Salaries in the Southern States, 1900-1946. IS J. of 
Negro Ed. 40 (1949)).

There is also a marked inferiority in library facilities 
in Negro schools. (Thompson, Chas H„ The Critical Situ­
ation in Negro Higher and Professional Education. 15 J. 
of Negro Ed. 579, 581, 582 (1946) ).

As to length ot school term, the Negro is attain dis­
advantaged, and especially so in the rural communities of 
(lie South. In a survey made for the United States Office 
ol Kducation in 193d, it was revealed that “ the average 
number of days schools are kept open for Negroes in 17 
Hoiitliorn states is 135, which is approximately l 1!  months 
less than (In' accepted standard in those states. The 
cumulative eflect ol (bis annual loss to Negroes over one 
hcIiooI general ion of 12 years means a difference of 18 
mmilliH or ‘.1 school years.”  (Caliver, Ambrose, Avail­



33

ability of Education to Negroes in Rural Communities, 34, 
Office of Education, Dept, of Interior, Bulletin No. 12 
(1935)).

In comparison with the physical facilities available to 
white students, the segregated Negro student suffers from 
an inadequacy and inequality resulting from the segrega­
tion in every category of educational facility, and by every 
standard of measurement. See, Phelps-Stokes Fund, Edu­
cational Adaptations: Report of Ten Years’ Work, 1910- 
1920; Johnson, Chas. S., The Negro in American Civilisa­
tion (1930) 261 et seq.; Embree, Edwin R., Brown America 
(1931); Moton, Robert R., What the Negro Thinks, 102-108 
(1929); Survey of Higher Education for Negroes, 14 et 
seq., IT. S. Office of Ed., Misc. No. 6, Vol. II, U. S. Gov’t 
Print. Off., Wash. D. C. (1942); Woofter, Thomas J. Jr., 
The Basis of Racial Adjustment, 176-185 (1925); The 
Availability of Education in the Texas Negro Separate 
School, 16 J. of Negro Ed. 429 (1947).

The President’s Commission on Higher Education, 
after thorough examination of the facts, found that:

* * * the separate and equal principle has no­
where been fully honored. Educational facilities for 
Negroes in segregated areas are inferior to those 
provided for whites. Whether one considers enroll­
ment. over-all costs per student, teachers’ salaries, 
ttaBsporteiior facilities, availability of secondary 

or oppo.'-t v'.Ptes for undergraduate and grade 
i S '-".'.;
fte m h  ̂ aad mb'- ■ tM Uf the Negro citizen.

" v r  te r  Arm-rvgm h>'mocmi,y ■ Vof 11, 
EfEsv-arnsr *rnv v; eg Opportunity
31 0 * 0 ) . .

It might be contended that while educational teeili 
ties have been and are, in fact, unequal, equality *« ouvi-.i 
theless theoretically possible. There are two ftuewet*i



u

Edneatiowt: plants, like other physical facilities, de­
teriorate at varying rates. To maintain physical equality 
in a segregated Mkcational system, it would be necessary 
to f f̂fitimaaLy taJsmee the facilities of one system against 
the ether and to take steps to eliminate inequalities which 
necessarily develop from time to time. This is adminis­
tratively impossible.

But there is even a more compelling factor which 
makes physical equality of facilities, without a substantial 
reduction of facilities now available to whites, a practical 
impossibility. The financial cost involved is beyond the 
capacity of the South to bear. Horace Mann Bond, in 
Education of the Negro in the American Social Order 
(1934) sums this up, at 231:

If the South had an entirely homogeneous popu­
lation, it would not be able to maintain schools of high 
quality for the children unless its states and local 
communities resorted to heavy, almost crushing rates 
of taxation. The situation is further complicated by 
the fact that a dual system is maintained. Consider­
ing the expenditures made for Negro schools, it is 
clear that the plaint frequently made that this dual 
system is a burden is hardly true; but it is also clear 
that if an honest attempt were made to maintain 
‘ equal, though separate schools’, the burden would be 
impossible even beyond the limitation of existing 
poverty.

Physical equality can be achieved only when the walls 
separating the two systems are destroyed and students 
regardless of race or color, are permitted to use all avail­
able educational facilities.



35

(2 ) The economic, sociological and psychological conse­
quences of racial segregation in and of themselves 
constitute a discrimination prohibited by the equal 
protection clause of the Fourteenth Amendment.

Aside from consideration of equality of physical facil­
ities. segregation. involves substantial factors -which 
duc-e a degree of inequality repugnant to the Cv-nsMEi

Theme are discriminatory factors -which are preeinr 
in the very sekeoEag: afforded the Xegro, which have no 
relation to the “ equality”  or adequacy of physical facil­
ities. Dr. Eokert Bedfleld, an education expert, testified 
in the tria l court, to the fact that segregation in educa­
tion deprives the Xegro of the “ opportunity to exchange 
professional and intellectual matters with members of the 
other major groups”  in the nation (B. 200).

Essential to the educational process is the intorpUn 
of contributions from all persons and all groups, Full 
equality in education is not attainable unless all students, 
regardless of race, have the fullest opportunity to asso­
ciate intellectually with each other, to express and coouvv 
divergent points of view which arise from their differing 
social backgrounds.

The development of adequate educational faeilicos : - 
Negroes is greatly handicapped by their isolation im:ci 
white commn.ni.ty. This is not to mention the d,et : :“ rom  
to the white student of intellectual association with the 
Xegro student. Xor are these mutual deprivations an 
indication of equality. {Shelley v. Kraemer, 334 TL S. 
1, 22, “ Equal protection of the laws is not achieved through 
indiscriminate imposition of inequalities.” )

Education for the legal profession, in particular, re­
quires the highest of standards. The study of law tra­
verses many fields of human knowledge. Yet the Xegro 
relegated to a jim-crow law school finds that there is an 
insufficient number of students to furnish the broad 
cross-section of intellectual interests and proficiencies



36

which are essential ingredients of successful law school 
training.

Law school classes are most stimulating where they 
afford ample group discussion. It is a difficult task to 
attempt to study law alone, as the petitioner is being com­
pelled to do. Even were there a large enrollment at the 
Negro law school, the facilities for discussion among 
students would be limited and the Negro student deprived 
of needed intellectual challenges from white fellow 
students.

In addition to this, the segregated Negro is deprived 
of the opportunity of participating with white students 
in production of their law review, in moot courts and 
mock trials, in such practice as is afforded by legal aid 
clinics and public defender societies and in all of the 
activities outside of the classroom which go to make up 
a rounded legal education.

Furthermore, the Negro lacks the prestige which comes 
from being a graduate from accredited and well-known 
educational institutions. This prestige carries through 
in later life, especially in professional life, and has a 
substantial pecuniary value. It is common knowledge 
that in the eyes of the community, the Negro school has 
substantially less professional standing than has the 
“ equivalent”  white school.

But over and above these considerations, the very 
existence of segregation is a degrading and humiliating 
racial discrimination against the Negro, with all its re­
sultant evil effects.

The stamp of inferiority implicit in the segregation 
is conclusively established in the mores of the communi­
ties where racial separation is practiced. There is no 
denying the fact that in those communities the attendance 
of a white person at a Negro school, or his being seated 
in the Negro section of a transportation facility (even if 
the physical equal of any) is not only illegal, but con­



37

sidered to be degrading and a loss of caste. To ignore 
this is to ignore the history of community relations in this 
country.

Moreover, the basic factual assumption upon which the 
rule in the Plessy case was predicated over half a century 
ago,—that a constitutional degree of equality is possible 
in racial segregation, is, in the light of modern sociologi­
cal and psychological data demonstrably false, and was, 
at all times, utterly without foundation. What the Court 
then maintained as a fallacious assumption, “ that the en­
forced separation of the two races stamps the colored race 
with a badge of inferiority”  (at 551) is today an uncon­
troverted scientific fact. Moton, Robert R., What the 
Negro Thinks 99 (1929); Bond, Horace M., Education of 
the Negro in the American Social Order 385 (1934); 
Gallagher, B. G., American Caste and the Negro College 
(1938); Davis, A. and Dollard, J., Children of Bondage 
(1940).

The consequences of the status of inferiority manifest 
themselves not only in economic limitations and in social 
impediments, but also in mental and emotional disturb­
ances and shortcomings in proper personality develop­
ment. These are discernable and measurable by the social 
scientist, and are matters of substance and sufficiently 
material to be given recognition as within the scope and 
intendment of the “ equal protection of the laws”  clause 
of the Fourteenth Amendment.

An excellent and authoritative Note published recently 
in the Yale Law Journal has pointed out that:

The effects of a dual school system force a sense 
of limitations upon the child and destroy incentives, 
produce a sense of inferiority, give rise to mecha­
nisms of escape in fantasy and discourage racial self­
appreciation. These abnormal results, condoned by 
the implications of the Plessy case, deny to the Negro 
and Mexican child ‘ equal protection of the laws’ in 
every meaningful sense of the words.



38

Segregation in Public Schools—A Violation of “ Equal 
Protection of the Laws” , 56 Yale L. J. 1059, 1062 (1947), 
and authorities therein cited: Long, Some Psychogenic
Hazards of Segregated Education of Negroes, 4 J. of 
Negro Ed. 336, 343 (1935); Long, The Intelligence of Col­
ored Elementary Pupils in Washington, D. C., 3 J. of 
Negro Ed. 205-22 (1934); Gallagher, American Caste and 
the Negro College, 109, 184, 321, 322 (1938).

The offer of equality in physical facilities cannot affect 
these pernicious factors inherent in segregation. The 
economic, sociological and psychological consequences to 
the Negro of segregation of the races, where it is prac­
ticed, are actually far more substantially discriminatory 
than any inequality in physical facilities can ever he. 
Realistically, the unconstitutional discrimination consists 
of the inequalities which flow from enforced segregation, 
rather than the inequality of mere physical facilities.



39

Conclusion

Racial segregation in our country is a threat to our 
leadership in international affairs. We have subscribed 
to international agreements and resolutions which are 
contradicted by our practices. A continuation of segrega­
tion gives the lie to our democratic protestations at a 
time when our leadership in world affairs is challenged.

Finally, unless racial segregation in education is de­
clared unconstitutional now, we may expect a further 
crystallization of patterns of discrimination, inasmuch as 
governors of eleven Southern States are planning to im­
plement a regional compact which will provide higher 
education for Negroes on a segregated basis.

For the reasons urged herein we respectfully request 
that the judgment of the Court below he reversed.

Respectfully submitted,

Marcus Cohn,
Washington, D. C.,

Jacob G-rumet,
New York City,
Attorneys for

American Jewish Committee,
B ’nai B ’rith (Anti-Defamation League),

Sol Rabkin,
Jacob Schaum,

of Counsel.

Dated New York, N. Y., March 31, 1950.



40

APPENDIX

American Jewish Committee

The American Jewish Committee is a corporation cre­
ated by an Act of the Legislature of the State of New 
York in 1906. Its charter states:

The object of this corporation shall be to prevent 
the infraction of the civil and religious rights of 
Jews, in any part of the world; to render all lawful 
assistance and to take appropriate remedial action 
in the event of threatened or actual invasion or re­
striction of such rights, or of unfavorable discrimina­
tion with respect thereto * * *

During the forty-three years of our existence it has been 
one of the fundamental tenets of our organization that the 
welfare and security of Jews in America depend upon the 
preservation of constitutional guarantees. An invasion of 
the civil rights of any group is a threat to the safety of 
all groups.

For this reason we have on many occasions fought in 
defense of civil liberties even though Jewish interests did 
not appear to be specifically involved. The present case, 
involving segregation in state-supported educational in­
stitutions, is one with which we are deeply concerned 
because such discrimination deprives millions of persons 
of rights that are freely enjoyed by others and adversely 
affects the entire democratic structure of our society. A 
question of transcendent public importance is thus pre. 
sented to this Court.



41

B’nai B’rith (Anti-Defamation League)

B ’nai B ’rith, founded in 1843, is the oldest civic organ­
ization of American Jews. It represents a membership 
of 300,000 men and women and their families. The Anti- 
Defamation League was organized in 1913, as a section 
of the parent organization, in order to cope with racial 
and religious prejudice in the United States. The pro­
gram developed by the League is designed to achieve the 
following objectives: to eliminate and counteract defama­
tion and discrimination against the various racial, reli­
gious and ethnic groups which comprise our American 
people; to counteract un-American and anti-democratic 
activity; to advance goodwill and mutual understanding 
among American groups; and to encourage and translate 
into greater effectiveness the ideals of American democ­
racy.



(1907)