Gebhart v. Belton Brief for Petitioners on the Mandate

    "Del.

IN  THE

Supreme Court of the United States
October Term, 1954. No. 5.

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. 
SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, 
JAMES M. TUNNELL, Members of the State Board of Education of 
the State of Delaware, GEORGE R. MILLER, JR., State Superintendent 
of Public Instruction of the State of Delaware, ALFRED EUGENE 
FLETCHER, GEORGE CLIFFORD JOHNSON, SAGER TRYON, 
EARL EDWARD ROWLES, Members of the Board of Education of the 
Claymont Special School District, HARVEY E. STAHL, and HAIG 
KUPJIAN, Petitioners,

v.

ETHEL LOUISE BELTON, an Infant, by Her Guardian ad Litem, 
ETHEL BELTON, ELBERT JAMES CRUMPLER, an Infant, by 
His Guardian ad Litem, JOSEPH CRUMPLER, RICHARD LEON 
DAVIS and JOHN TERRELL DAVIS, Infants by Their Guardian ad 
Litem, JOHN W. DAVIS, SPENCER W. ROBINSON, an Infant, 
by Her Guardian ad Litem, WILLIE ROBINSON, STYRON LU­
CILLE SANFORD, an Infant, by Her Guardian ad Litem, EMMA 
FOUNTAIN, ALMENA A. SHORT, an Infant, by Her Guardian ad 
Litem, JOHN SHORT, MYRTHA DELORES TROTTER, an Infant, 
by Her Guardian ad Litem, HARLAN TROTTER, ETHEL BELTON, 
JOSEPH CRUMPLER, JOHN W. DAVIS, WILLIE ROBINSON, 
EMMA FOUNTAIN, JOHN SHORT, and HARLAN TROTTER,

Respondents.

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. 
SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, 
and JAMES M, TUNNELL, Members of the State Board of Education 
of the State of Delaware, GEORGE R. MILLER, JR., State Superin­
tendent of Public Instruction of the State of Delaware, GORDON F.‘ 
BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, and 
ETHEL C. McVAUGH, Members of the Board of School Trustees of 
Hockessin School No. 29, Petitioners,

v.

SHIRLEY BARBARA BULAH, an Infant, by Her Guardian ad Litem, 
SARAH BULAH, FRED BULAH and SARAH BULAH,

Respondents.

BRIEF FOR PETITIONERS ON THE MANDATE.

H. ALBERT YOUNG,
Attorney General of the State of Delaware. 

CLARENCE W. TAYLOR,
Deputy Attorney General of the State of Delaware. 

ANDREW D. CHRISTIE,
Special Deputy to the Attorney General.

International, 236 Chestnut St., Phila. 6, Pa.



TABLE OF CONTENTS.

Status o f  the Cases .................................................................  2
Prelim inary .................................................................................  3
Factual Background in  Delaware ...................................... 4

I. School System as It Existed Prior to the Decision in 
This Case .......................................................................  4
(A) Legal B a s is ...............................   4
(B) State Board of Education.................................... 5
(C) Local School Districts for White Children . . . .  5
(D) Local School Districts for Colored Children . . .  7
(E) School Finances ...................................................  9

II. Desegregation to D a te ...................................................  10
(A) Progress ...............................................................  10
(B) Opposition....................................................  12
(C) Summary of Delaware’s Situation............  16

Argument—Form o f  Mandate ...............................................  17
I. The Decree of the Court of Chancery, as Affirmed by 

the Supreme Court of the State of Delaware, Should
Be Affirmed ...................................................................  17

II. Recommendation With Respect to the M andate..........  18
(A) Introduction ........................................... , ...........  18
(B) This Court May and Should Permit a Gradual 

Adjustment From Segregated Public Education
to a System Without Race Distinction.............  19

(C) This Court Should Remand the Cases to the 
Lower Courts for Formulation of Decrees for 
the Admittance of Plaintiffs to Public Schools 
Without Regard to Race as Soon as Practicable 
Within a Time Limit to Be Set by This Court 24

Conclusion .......................    28

Page



CASES CITED.

Ballard v. Searls, 130 U. S. 50, 9 S. Ct. 418, 32 L. ed. 846 .. 25
Briggs v. Elliott, 98 Fed. Supp. 529 .........................................  20
Briggs v. Eliott, 103 Fed. Supp. 920 ...........................................  19
Brown v. Board of Education of Topeka, 98 Fed. Supp. 797 . . .  19
Brown v. Board of Education of Topeka, 347 U. S. 483, 98 L.

ed. (Advance p. 583), 74 S. Ct. 686 ...................................  3, 17
Burr v. Board of School Commissioners of the City of Balti­

more (Oral opinion Judge James K. Cullen, October 5,
1954, in the Superior Court of Baltimore City, Docket
1954, Folio 830) ...................................................................  11

Caretti v. Broring Building Co., (Md. Ct. App. 1926) 150
Md. 198, 132 A. 619, 46 ALR 1 .......................................... 21

Davis v. County School Board, 103 Fed. Supp. 337 ................ 20
Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426,

431, 92 L. ed. 784, 68 S. Ct. 641, 644 ............................... .. 20
Fischer v. Hurst, 333 U. S. 147, 68 S. Ct. 389, 92 L. ed. 604 .. 23
Gebhart v. Belton, — Del. Ch. —, 91 A. 2d 137 ....................2, 17, 19
Georgia v. Tennessee Copper Co., 206 U. S. 230, 51 L. ed. 1038,

27 S. Ct. 618; 237 U. S. 474, 59 L. ed. 1054, 35 S. Ct.
631; 237 U. S. 678, 59 L. ed. 1173, 35 S. Ct. 752; 240
U. S. 650, 60 L. ed. 846, 36 S. Ct. 465 ............................... 21, 27

Hecht Co v. Bowles, 321 U. S. 321, 88 L. ed. 754, 64 S. Ct. 587 20
Hughson v. Wingham, (Wash. S. Ct. 1922) 120 Wash. 327,

207 P. 2, 27 ALR 327 ...........................................................  21
McLaurin v. Oklahoma State Regents for Higher Education,

339 U. S. 637, 70 S. Ct. 851, 94 L. ed. 1149 ....................23, 26
Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S.

661, 88 L. ed. 376, 64 S. Ct. 268 .........................................  21
Northern Securities Co. v. United States, 193 U. S. 197, 3624

S. Ct. 436 ............................................................................... 20
New Jersey v. New York, 283 U. S. 473, 75 L. ed. 1176, 51 

Sup. Ct. 519; 284 U. S. 585, 75 L. ed. 506, 52 S. Ct. 120;
296 U. S. 259, 80 L. ed. 214, 56 S. Ct. 188 ......................22, 27

Panama Mail S. S. Co. v. Vargas, 281 U. S. 670, 50 S. Ct.
448, 74 L. ed. 1105 ...........................................................  25

Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 S. Ct. 1138 19
Porter v. Warner Holding Co., 328 U. S. 395, 90 L. ed. 1332,

66 Supp. Ct. 1086

Page

21



CASES CITED (Continued).

Rogers v. The St. Charles, 19 How. (U. S.) 108, IS L. ed. 563 25
Russell v. Southard, 12 How. (U. S.) 139, 13 L. ed 927 .......... 25
Securities and Exchange Comm. v. U. S. Realty and Improve­

ment Co., 310 U. S. 434, 84 L. ed. 1293, 60 S. Ct., 1044 . . .  21
Lillian Simmons v. Edmund F. Steiner, et al., Del. Ch. ,

2 A. 2d ............................................................................14,15
Sipuel v. Board of Regents of University of Oklahoma, 332

U. S. 631, 68 S. Ct. 299, 92 L. ed. 247 (Law School) .. .23,25 
Standard Oil Co. v. United States, 221 U. S. 1, 31 S. Ct. 502,

55 L. ed. 619 .........................................................................22,27
State v. Hutchins, (N. H. S. Ct. 1919) 79 N. H. 132, 105 A.

519, 2 LAR 1685 .................................................................  21
State of Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 59

S. Ct. 232, 83 L. ed. 208 .....................................................  23
Sweatt v. Painter, 339 U. S. 629, 70 S. Ct. 848, 94 L. ed. 1114

(University of Texas Law School) ..................................... 23, 25
United States v. American Tobacco Co., 221 U. S. 106, 31 S. Ct.

632, 55 L. ed. 663 ........................................................... 22, 25, 27
United States v. National Lead Co., 332 U. S. 319, 67 S. Ct.

1634, 91 L. ed. 2077 ............................................................. 22,27
United States v. Paramount Pictures, Inc., 334 U. S. 131, 92

L. ed. 1260 .............................................................................22,27
Universal Battery Co. v. United States, 281 U. S. 580, 50 S. Ct.

422, 74 L. ed. 1051 ...............................................................  25
Virginian Railway Co. v. System Federation No. 40, 300 U. S.

515, 552, 81 L. ed. 789, 57 S. Ct. 592, 601 .......................... 21

Page

AUTHORITIES CITED.
Page

46 ALR pp. 35-37 ................................... ...................................  21
The Book of States 1954-1955, Frank Smothers, Editor, The

Council of State Governments (1953), p. 245 .................... 9
Opinion of John M. Dalton, Attorney General of Missouri,

June 30, 1954 ......................................................................... 11
Robert C. Stewart, A Proposed Plan for the Reorganization 

of Administrative Units in the State of Delaware (1948)
(an unpublished study) .......................................................  4, 7



CONSTITUTIONS AND STATUTES CITED.
Page

14 Delaware Code (1953) .........................................................  4
14 Delaware Code, Chapter 1 (1953) .......................................  5
14 Delaware Code, Chapters 3, 5, 7 and 9 (1 9 5 3 )...................... 6
14 Delaware Code, Chapter 11 (1953)
14 Delaware Code, Chapter 13 (1953) .
14 Delaware Code, Chapter 17 (1953) ..
14 Delaware Code, Chapter 29 (1953) .
14 Delaware Code, Section 141 (1953)
Delaware Constitution of 1897, Article II, Section 19 
Delaware Constitution of 1897, Article X, Section 1 .. 
Delaware Constitution of 1897, Article X, Section 2 ..
32 Delaware Laws, Ch. 160 (1921) ..........................
49 Delaware Laws, Chapter 217 at page 386 ..............
49 Delaware Laws, Chapter 337 (1953) .....................................  10
Revised Code of Delaware, 1852, Chapter 4 2 ............................ 5



I K  T H E

Supreme Court of the United States.
October T erm , 1954. No. 5.

Francis B. Gebhart, William B. Horner, Eugene H. Shall- 
cross, Jesse Olirum Small, N. Maxson Terry, James M. 
Tunnell, Members of the State Board of Education of 
the State of Delaware, George R. Miller, Jr., State 
Superintendent of Public Instruction of the State of 
Delaware, Alfred Eugene Fletcher, George Clifford 
Johnson, Sager Tryon, Earl Edward Rowles, Members 
of the Board of Education of the Claymont Special 
School District, Harvey E, Stahl, and Haig Kupjian,

Petitioners,
v.

Ethel Louise Belton, an Infant, by Her Guardian ad Litem, 
Ethel Belton, Elbert James Crumpler, an Infant, by 
His Guardian ad Litem, Joseph Crumpler, Richard 
Leon Davis and John Terrell Davis, Infants by Their 
Guardian ad Litem, John W. Davis, Spencer W. Robin­
son, an Infant, by His guardian ad Litem, Willie 
Robinson, Styron Lucille Sanford, an Infant, by Her 
Guardian ad Litem, Emma Fountain, Almena A. Short, 
an Infant, by Her Guardian ad Litem, John Short, 
Myrtha Delores Trotter, an Infant, by Her Guardian ad 
Litem, Harlan Trotter, Ethel Belton, Joseph Crumpler, 
John W. Davis, Willie Robinson, Emma Fountain, John 
Short, and Harlan Trotter,

Respondents.

Francis B. Gebhart, William B. Horner, Eugene H. Shall- 
cross, Jesse Ohrum Small, N. Maxson Terry, and James 
M. Tunnell, Members of the State Board of Education 
of the State of Delaware, George R. Miller, Jr., State 
Superintendent of Public Instruction of the State of 
Delaware, Gordon F. Biehn, Frederick H. Smith, Henry 
C. Mitchell, and Ethel C. MeVaugh, Members of the 
Board of School Trustees of Hockessin School No. 29,

Petitioners,
v.

Shirley Barbara Bulah, an Infant, by Her Guardian ad 
Litem, Sarah Bulah, Fred Bulah and Sarah Bulah,

Respondents.

BRIEF FOR PETITIONERS ON THE MANDATE.



STATUS OF THE CASES.
Petitioners seek review of final judgments of the Su­

preme Court of the State of Delaware affirming orders of 
the Court of Chancery of the State of Delaware. Petition­
ers are members of the Board of Education of the State of 
Delaware and of the Boards of Education of Olaymont Spe­
cial School District and Hockessin School District #29. 
The provision from which petitioners seek relief is the same 
in both cases and is as follows:

“ That . . . the defendants and each of them, 
their agents and employees are enjoined from denying 
to infant plaintiffs and others similarly situated, be­
cause of color or ancestry, admittance as pupils in the 
. . . ” (designated schools).
This Court heard oral argument on December 11, 1952. 

Petitioners, pursuant to leave of the Court filed a brief on 
December 31, 1952.

On June 8, 1953, this Court ordered the case restored 
to the docket and assigned for reargument. The subject 
matter of the reargument was directed to the history and 
construction of the Fourteenth Amendment and the relief 
to be granted.

This Court heard oral argument, and at that time it 
was pointed out that the Delaware cases are before this 
Court on the narrow issue of the type of relief which should 
have been granted. In other words, where there had been 
a finding of inequality, does the Fourteenth Amendment 
require immediate admission of respondents to schools 
maintained for white children!

By its decision of May 17,1954, this Court struck down 
the principle of “ separate but equal” educational facilities.

In the Fall of 1952, respondents, in compliance with the 
order of the Chancellor, as affirmed by the Supreme Court 
of Delaware,1 were granted admission to the respective

2 Brief for Petitioners on the Mandate

1. Gebhart v. Belton, — Del. Ch. —, 91 A. 2d 137.



white schools. These respondents have remained in those 
schools or have completed their education according to that 
order. The admission of the negro children to those schools 
has taken place without incident. The request to afford the 
State a reasonable period of time within which to equalize 
the facilities in those two specific districts is no longer 
before the Court.

Brief for Petitioners on the Mandate 3

PRELIMINARY.
This Court by decision of May 17, 1954 disposed of the 

constitutional issues involved in the several cases before it.
The Court reserved for further consideration the ques­

tion of the type of relief to which the successful parties are 
entitled. The parties have been requested to present fur­
ther argument on questions previously propounded dealing 
with the power and propriety of effecting a gradual adjust­
ment to non-segregated public education and the forum best 
suited to the administration of such relief.2

This brief is submitted in compliance with the Court’s 
request. It is directed to (1) a factual review of the Dela­
ware educational system, the experience of this State in 
its efforts to effect desegregation since this Court’s decision 
of May 17, 1954, the degree of social acceptability or un­
acceptability of desegregation in Delaware, and (2) a dis­
cussion of the legal precedents and policy considerations by 
which this Court should be governed in disposing of the 
cases before it.

2. Brown v. Board of Education of Topeka, 347 U. S. 483, 98 
L. ed. (Advance p. 583), 74 S. Ct. 686. Footnote 13. “4. Assuming 
it is decided that segregation in public schools violates the Fourteenth 
Amendment, “ (a) would a decree necessarily follow providing that, 
within the limits set by normal geographic school districting, Negro 
children should forthwith be admitted to schools of their choice, or 
“ (b) may this Court, in the exercise of its equity powers, permit an 
effective gradual adjustment to be brought about from existing segre­
gated systems to a system not based on color distinctions? “5. On 
the assumption on which question 4 (a) and (b) are based, and 
assuming further that this Court will exercise its equity powers to 
the end described in question 4 (b), “ (a) should this Court formulate



4 Brief for Petitioners on the Mandate

FACTUAL BACKGROUND IN DELAWARE.

I. School System as It Existed Prior to the Decision in
This Case.

(A) Legal Basis.
The Constitution of the State of Delaware adopted in 

1897, states that “ the General Assembly shall provide for 
the establishment and maintenance of a general and efficient 
system of free public schools.” 8 The Constitution pro­
vides for equitable apportionment of certain appropriations 
among the School Districts and further provides “ that in 
such apportionment, no distinction shall be made on account 
of race or color, and separate schools for white and col­
ored children shall be maintained”.* 3 4

Since there is little additional detail in the Constitu­
tion, the Delaware education system is governed largely 
by statute.5 The present pattern of education stems largely 
from the School Code of 19216 which was enacted after 
lengthy study. Prior to that date schools were in general 
locally run from local funds.7

detailed decrees in these cases; “ (b) if so, what specific issues should 
the decrees reach; “ (c) should this Court appoint a special master to 
hear evidence with a view to recommending specific terms for such 
decrees; “ (d) should this Court remand to the courts of first instance 
with directions to frame decrees in these cases, and if so, what gen­
eral directions should the decrees of this Court include and what 
procedures should the courts of first instance follow in arriving at 
the specific terms of more detailed decrees?”

3. Delaware Constitution of 1897, Article X, Section 1.
4. Delaware Constitution of 1897, Article X, Section 2. The 

separate requirement also appears at 14 Del. Code, Section 141 
(1953).

5. Title 14, Delaware Code (1953).
6. 32 Delaware Laws, Ch. 160 (1921).
7. For a careful legal history of Delaware education see Robert 

C. Stewart, A Proposed Plan for the Reorganization of Administra­
tive Units in the State of Delaware (1948) an unpublished study.



5

(B) State Board of Education.
The general administration and supervision of the free 

public schools in Delaware is vested in the State Board of 
Education.8 The Board consists of sis residents appointed 
by the Governor from various parts of the State. No one 
subject to the authority of the Board may serve thereon, 
and the members receive only their expenses and twenty- 
five dollars per meeting.

The Board in turn appoints a Superintendent of Pub­
lic Instruction who acts as Executive Secretary. The State 
Board employs a number of other executive officers, and 
administrative assistants. The State Board through its 
staff has almost complete charge of several important 
phases of the State system such as: education of handi­
capped children, student driving training and education 
of the handicapped. The Board makes the budget recom­
mendations for all public schools to the State Budget Com­
mission and to the General Assembly; it also must approve 
all capital improvements. But the State Board’s most 
important function is the administrative and instructional 
supervision which it exercises in varying degrees over all 
the schools through its general powers.

(C) Local School Districts for White Children.
The entire State is divided into local districts for the 

education of white children and such districts have rather 
definite geographical boundaries. The boundary lines for 
the original districts were set more than a hundred years 
ago.9 Frequent changes were made by statute until 1897 
when the present State Constitution was adopted. The Con­
stitution now forbids local or special laws relating to the 
creation or changing the boundaries of school districts.10 
Many consolidations and some changes in boundaries have

8. See generally Chapter 1, Title 14, Delaware Code (1953).
9. See Revised Code of Delaware, 1852, Chapter 42.
10. Delaware Constitution of 1897, Article II, Section 19.

Brief for Petitioners on the Mandate



taken place under various statutes of general application 
although such statutes make changes difficult.11

There remain, however, sixty-three local school dis­
tricts in the State for the education of white children.12

Sixteen of the most populated local districts are known 
as “ Special School Districts” and in such districts the 
local boards exercise a great deal more authority than do 
the other local boards in the State. The most important 
Special School District comprises the entire city of Wil­
mington. The Wilmington schools have always operated 
as an almost separate school system although they receive 
the same uniform State appropriations as do other schools.

Forty-seven of the local districts are known as ‘ ‘ School 
Districts”. Here the local boards act largely on behalf 
of the State Board and make fewer individual decisions.

Most of the local districts whether they are School 
Districts or Special School Districts, have certain charac­
teristics in common. All have a school board made up of 
local residents who are responsible for maintaining the 
buildings and hiring all personnel for the school involved. 
All such boards receive uniform State appropriations and 
all are subject to a certain amount of general supervision 
from the State Board. In all cases the local board, after 
favorable referendum, may levy local taxes to supplement 
the funds received from the State. Most of the local boards 
are elected by the residents of the district but in most of 
the districts in New Castle County, including Wilmington, 
the boards are appointed by the resident judge of the Su­
perior Court.13

Many of the local districts have no high school and 
the State Board arranges for high school education by set­
ting up high school attendance areas which sometimes in­
clude several local districts. At present the local district

11. 14 Del. Code (1953), Ch. 11.
12. Some of these are now integrated. See “Desegregation to 

Date”, infra.
13. 14 Del. Code (1953), Chs. 3, 5, 7 and 9.

6 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 7

operating the high school bears whatever local cost there 
is for such high school and the other districts have no ex­
pense in connection therewith. In one ease however, a large 
high school district was established to serve several local 
districts without being operated by the board of any of the 
districts served. Those served within the geographic area 
of that high school district are subject to local school taxes 
for the high school.

Several of the districts serve large and populated areas 
with more than one building and with a school superin­
tendent as well as principals for each building. Such dis­
tricts are in a position to adjust their educational program 
to some form of integration with less difficulty than are 
the eleven rural districts which still maintain schools with 
only one or two teachers.

The State Board has long recognized that greater edu­
cational opportunities as well as administrative economies 
would result from consolidation of many of the existing 
districts. Attempts to obtain local approval of such con­
solidations have met with frequent set-backs, and the Gen­
eral Assembly has refused to liberalize the statutory re­
quirements for consolidation. It is apparent, therefore, 
that there is strong local opinion in many parts of the State 
against changing the current school arrangements. This 
opinion was frequently expressed long before integration 
played any part in such discussions.

(D) Local School Districts for Colored Children.
In addition to the sixty-three white districts discussed 

above there are forty-two School Districts which operate 
schools for colored children. These districts were devel­
oped at a later date than the white school districts and with 
less definite boundries.14 Some colored districts exist en­
tirely within white districts while others include parts of

14. Robert C. Stewart op. cit. p. 28.



two or more districts. Two of the colored high school dis­
tricts include entire counties.15 All of the colored schools 
operate within the uniform State appropriations and capi­
tal outlays are paid without local contributions. There is 
no attempt to collect local school taxes from colored resi­
dents except in Special School Districts. In other respects 
the colored school boards operate exactly as the white 
boards and the same statutes govern both. The school 
boards, whether they are white or colored, are made up of 
respected local citizens, many of whom oppose any change 
or consolidation.

The picture is further complicatead by the existence 
of several colored schools under the direct jurisdiction of 
white Special School Districts. In thirteen instances in­
cluding the City of Wilmington, a single board operated 
both the white and colored schools of the district. Exhibit 1 
lists all of the colored schools of the State and shows the 
complicated geographic and administrative relation of 
these districts and the white districts.

It is apparent that those Special School Districts which 
already operate separate schools for white and colored chil­
dren are in the best position to integrate such schools with 
a minimum of administrative adjustment. Orderly integra­
tion can be more satisfactorily accomplished by reorgani­
zation of other school districts in the State. White or 
colored districts should cease to exist as such and new dis­
tricts should be formed. Such reorganization would nor­
mally be a function of the State Legislature. Since the 
school laws are largely statutory rather than constitutional, 
a simple majority in the General Assembly with approval 
by the Governor would be sufficient to make the necessary 
changes. However, representation in the General Assem­
bly is heavily weighted in favor of the less populated areas

15. The William M. Henry Comprehensive School in Kent 
County and the William C. Jason Comprehensive School in Sussex 
County.

8 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 9

where consolidation of school districts in general has long 
been opposed.

Legislative reorganization of the public school district­
ing in this State will permit a more orderly transition to a 
non-segregated public education system. However, the 
composition of the General Assembly is such that the ma­
jority of the members are elected from sections which 
are sincerely opposed to integration. Legislation which 
will aid in the integration of our public schools will be 
met with strong opposition. On the other hand, realization 
that integration is to become a reality, whether by court 
edict or legislative act, may result in enactment of legisla­
tion which will lessen the impact of this Court’s decision 
in those areas where the dominant mood is opposed to 
integration.

(E) School Finance.
The State pays more than 90% of the operating ex­

penses of the Delaware public schools. The balance is paid 
by the local school districts through local taxes. No other 
state government pays so large a percentage of the cost.16 
In the administration of these funds units of children are 
the basis of calculation and there is no differentiation based 
on color. There is a minimum salary schedule for teachers 
and other school personnel and these salaries are paid from 
State funds.17 There are uniform State allowances to each 
district for all other expenses and such allowances are based 
on the number of pupils in attendance.18 Transportation of 
pupils is provided at State expense.19

16. The Book of States 1954-1955, Frank Smothers, Editor, The 
Council of State Governments (1953), p. 245.

17. 14 Del. Code (1953), Chapter 13.
18. The appropriations are based on “units of pupils” as defined 

in the statute. 14 Del Code (1953), Chapter 17.
19. 49 Delaware Laws, Chapter 217 at page 386; 14 Del. Code 

(1953), Chapter 29.



The most recent school construction program provides 
for improvements costing over $17,000,000, more than 
$12,000,000 of which is to he paid from State funds while 
local districts contribute about $5,100,000.2° The colored 
school districts and many white districts have no local 
school taxes at all. Many of the white districts have had to 
levy local property taxes to amortize bonds issued to pay 
the local share of capital improvements. Some districts 
also levy taxes to supplement the State appropriations for 
general expenses and salaries.

Any reorganization of school districts will necessarily 
involve a rearrangement of the present local school tax pic­
ture. Attention must also be given to the bonded indebted­
ness of the various districts.

10 Brief for Petitioners on the Mandate

II. Desegregation to Date.

(A) Progress.

Since the decision of the Court, issued May 17, 1954, 
significant progress has been made toward abolishing segre­
gation in parts of the Delaware public school system. 
Shortly after that decision, the State Board of Education 
sought the opinion of the Delaware Attorney G-eneral as to 
whether it could immediately set integration machinery in 
motion in those districts already prepared for desegrega­
tion or whether it was necessary to await the final mandate 
of the United States Supreme Court. The opinion of the 
Attorney General, dated June 9, 1954, held in effect that 
school districts could proceed with integration, in accord­
ance with the decision of May 17, 1954 in this case, without 
doing violence to the constitution and laws of our own State 
and notwithstanding the fact that the mandate of the United 20

20. 49 Delaware Laws (1953), Chapter 337.



States Supreme Court had not yet been handed down.21 
(Exhibit 2).

As a result of the Attorney General’s opinion, the 
State Board of Education developed and adopted Policy 
Statement I, as of July 11, 1954 (Exhibit 3). This granted 
permission to the Wilmington school authorities to move 
promptly into a partial integration program (See Exhibit 
4). It urged that other school authorities together with 
interested citizen groups take immediate steps to formulate 
integration plans in the various districts and to submit 
these plans to the State Board of Education for review. 
The Policy Statement brought various phases of the prob­
lem to the attention of those concerned and pledged co­
operation of the State Board with the local school units.

On August 19, 1954, the State Board of Education 
adopted Policy Statement II (Exhibit 5) which concerned 
the opening of schools in September, 1954. In this state­
ment all schools with four or more teachers were requested 
to prepare and present tentative plans for integration in 
their area on or before October 1, 1954.

On August 26, 1954, the State Board of Education 
adopted Policy Statement III (Exhibit 6). This statement 
was designated to assist the local school authorities in their 
plans for integration by bringing to their attention various 
more specific items and suggestions which should be con­
sidered in connection with their plans.

Several school districts promptly submitted plans for 
partial or complete integration and the State Board of 
Education approved several such plans, effective at the be­
ginning of the present school year, 1954-1955. Exhibit 7 
shows that in areas containing about 28% of the total 
negro school population of the State, integration has been

21. For similar holdings see: Opinion of John M. Dalton, Attor­
ney General of Missouri, June 30, 1954; Burr v. Board of School 
Commissioners of the City of Baltimore, (Oral opinion, Judge James 
K. Cullen, October 5, 1954, in the Superior Court of Baltimore City, 
Docket 1954, Folio 830).

Brief for Petitioners on the Mandate 11



undertaken without incident. It should be observed, how­
ever, that most of the integration has been in the northern 
part of New Castle County where there is the greatest con­
centration of the population of the State. Furthermore 
an inspection of the districts involved would reveal that 
a comparatively small number of colored children are tak­
ing advantage of their right to attend schools which were 
formerly all white.

The significant fact is that voluntary steps toward de­
segregation have taken place in a number of districts on 
a partial basis and that the resultant integration has met 
with community acceptance.

(B) Opposition.
In the lower counties of the State the dominant mood 

is opposed to integration. Some of the school districts have 
made no plans looking toward eventual integration; other 
districts merely indicate a willingness to take whatever 
steps the court may direct.! In the Laurel school district, 
located near the southern border of the State of Delaware, 
a public opinion poll conducted with the approval of the 
local school board registered 1258 to 31 against desegrega­
tion.22 )

At the beginning of the 1954-1955 school year, the Board 
of the Milford Special School District admitted ten Negro 
children to the tenth grade of the Milford High School. 
These pupils continued to attend the high school through 
September 17, 1954, a period of nine school days, without 
incident. On September 17, there was a mass meeting at­
tended by about 1,500 persons who were opposed to the 
admission of the Negro children. The school session was 
dispensed with on September 20,1954 in order that a special 
meeting of the parents of the school children and the mem­
bers of the School Board could be held to discuss the prob­

22. The poll was held at the white school and only seven negro 
residents voted.

12 Brief for Petitioners on the Mandate



lem of the integration of the Negro children into the white 
schools.

A petition was presented to the local School Board re­
questing it to rescind its action in admitting the ten Negro 
pupils. The Milford School remained closed during the en­
tire week beginning September 20th. The Board of the 
Milford Special School District resigned on September 23, 
1954.

The feeling against the admission of these ten Negro 
children in the Milford Special School District continued 
to run high. Beginning on September 26, 1954, mass meet­
ings were conducted by an organization known as the Na­
tional Association for the Advancement of White People. 
A major objective of these meetings was the boycotting of 
all schools, and the Milford High School in particular, in 
order to bring pressure upon the local school authorities 
to remove the Negro children from the Milford High School 
and to prevent further action in lower Delaware directed 
toward integration. The meetings of the National Asso­
ciation for the Advancement of White People were de­
signed to (1) incite anti-Negro feeling among white peo­
ple, (2) inspire a willingness to commit violence in order 
to perpetuate segregation, and (3) to advocate violation 
of the State School Attendance Laws.

The State Board of Education reopened the Milford 
High School on September 27th with the ten colored chil­
dren in attendance. On that day, crowds milled around 
the school, and some people took names of children that at­
tended school. School attendance was only 456 pupils of 
1,562 pupils enrolled. A motorcade of cars decorated with 
streamers and carrying placards reading ‘ ‘ Send them back 
to Africa” and “ Join the NAAWP” passed the school. 
Circulars were distributed among the crowds urging boy­
cott of the Milford School. On September 29th, attendance 
in neighboring school districts dropped to a small fraction 
of their enrollment.

Brief for Petitioners on the Mandate 13



A new Board of the Milford Special School District, 
organized September 30th, removed the names of the col­
ored students from the rolls of the Milford High School, 
thus compelling the Negro pupils to withdraw from the Mil­
ford High School and attend a colored school.

The President of the Board of Milford Special School 
District stated that:

“ Public demonstrations against the Negro stu­
dents attending the white school were of such propor­
tions that the schools were closed during the week of 
September 20 to September 24 inclusive and were re­
opened on September 27 by the State Board of Educa­
tion and under its direction and supervision. There­
after the public demonstrations increased and threats 
of violence were made, because of which school attend­
ance dropped to approximately one-third, and the whole 
educational program of the Milford Special School Dis­
trict was disrupted.

“ On September 30, 1954, the Board of Education 
of the Milford Special School District notified all of 
said Negro students that their names had been re­
moved from the rolls of the Milford High School. This 
action by the Milford Board of Education was done 
with a view of aiding and restoring law and order to 
the school district, in the interest of the educational 
program of the school district and for the general wel­
fare of the entire student body, and was prompted par­
ticularly for the safety of the colored students.” (Affi­
davit of Edmund F. Steiner, October 7, 1954); Lillian 
Simmons v. Edmund F. Steiner, et al., Del. Ch.

, 2 A. 2d

Suit was immediately filed on behalf of the ten Negro 
children in the Delaware Court of Chancery requesting that 
the Board of the Milford Special School District be en­
joined from denying admission to the Negro children.

14 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 15

The Attorney General appeared as amicus curiae and 
urged that the ten Negro pupils had acquired a status as 
students in the Milford High School by their admittance 
by the Milford School Board, and that a later Board could 
not expel them and, further, that the Negro children hav­
ing acquired such status could not be expelled because of 
threats of violence and unlawful disruption of the public 
order.

The Court of Chancery in deciding the issue in the 
preliminary steps of the proceeding granted an injunction 
preserving the status of the Negro children as pupils in 
the Milford High School. Vice-Chancellor William Marvel 
stated:

“ Except for their names now being withdrawn 
from the records of the school, plaintiffs’ position is 
no different than that of other Negro students of Dela­
ware now attending partially integrated schools on 
the basis of their rights to equal protection under the 
Constitution of the United States. It would be un­
realistic to maintain that these other students are un­
lawfully in school during the present phase of permis­
sive integration.

“ I hold that plaintiffs, having been accepted and 
enrolled, are entitled to an order protecting their status 
as students at Milford High School; that their right 
to a personal and present high school education having 
vested on their admission, they need not wait for de­
crees in the cases decided by the United States Su­
preme Court in May as a prerequisite to the relief they 
seek.” Lillian Simmons v. Edmund F. Steiner, et al., 
supra.

This case is now on appeal before the Delaware Su­
preme Court. By virtue of a stay granted by the Delaware 
Supreme Court, the ten Negro children presently attend a 
Negro High School located sixteen miles from the Milford 
High School.



16

(C) Summary of Delaware’s Situation.
Although Delaware contains only three counties, the 

administration of its educational system is a complex mix­
ture of centralized administrative and financial authority 
and autonomous local control. Partial desegration has pro­
gressed satisfactorily in all but one of the districts where 
it has been undertaken. In the lower part of the State 
there is strong opposition to immediate integration.

In certain areas in Delaware a gradual transition from 
a segregated school system to a non-segregated school sys­
tem is necessary to insure permanency and community ac­
ceptance.

The events at Milford demonstrate that:
1. Public opinion in lower Delaware has been aroused 

against desegregation and that a significant percentage of 
the people in parts of Delaware are not ready to accept 
integration.

2. The immediate admission of Negro children to white 
schools under the old “ separate but equal” doctrine is 
inconsistent with orderly gradual transition from separate 
to integrated schools in areas where such immediate ad­
mission is opposed by the local population. The decision 
of the Supreme Court of the State of Delaware makes im­
mediate admission mandatory where separate facilities are 
not equal. Since many instances of unequal facilities may 
be presented to the courts for immediate relief under the 
“ separate but equal” doctrine, gradual integration depends 
upon the time element to be provided for in this Court’s 
mandate during this period of transition. The mandate of 
this Court should make it clear that, notwithstanding in­
equality of facilities, the local courts shall in the exercise 
of their equity powers be permitted to grant such relief as 
they deem proper after consideration of the physical, eco­
nomic and social conditions of the community and upon a 
showing of a bona fide effort directed toward orderly de­
segregation.

Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 17

ARGUMENT—FORM OF MANDATE.

I. The Decree of the Court of Chancery, as Affirmed by the
Supreme Court of the State of Delaware, Should Be
Affirmed.
The two cases from the State of Delaware which are 

before this Court presented the question of the propriety of 
the Order of the Chancellor directing admission of Negro 
children to two public schools formerly restricted in ac­
cordance with the Constitution of the State of Delaware to 
white children where the Court found that the facilities 
available to the Negro students were not equal to those 
available to white students. The issue for determination 
by this Court was whether the proper decree should not 
have been one directing the authorities in charge of public 
education in the State of Delaware to equalize the sepa­
rate facilities.

The decision of this Court in Brown v. Board of Edu­
cation of Topeka, 347 IT. S. 483, 98 L. ed. (Advance p. 583), 
74 S. Ct. 686 has eradicated the principle of “ separate but 
equal” education upon which the Delaware cases were 
predicated and hence has foreclosed the issues of the in­
stant cases, with the exception of the question involving 
the immediacy of the right of the Negro children to admis­
sion to the public schools formerly available only to white 
students. The matter before the Court now is the imple­
mentation of its decision of May 17,1954 by an appropriate 
decree or mandate.

In compliance with the decrees of the Chancellor which 
were affirmed by the Supreme Court of Delaware,23 the 
plaintiffs in these cases were admitted to the Hockessin 
and Claymont Schools. Inasmuch as they have remained 
in those schools since the Fall of 1952 without incident or 
social repercussion, it is felt that the conditions which war­

23. Gebhart v. Belton, — Del Ch. —, 91 A. 2d 137.



rant postponement of desegregation in parts of Delaware 
as well as in certain other states which we believe do jus­
tify a deferment of the relief to which the plaintiffs are 
entitled do not exist with respect to the two districts in­
volved in the Delaware cases.

This Court has determined that further maintenance 
of segregated public education violates the Constitution of 
the United States. The primary reason for delaying relief 
is an existing severe social inflexibility which would make 
impracticable the immediate admission of Negro children 
in white schools. The Court below found no such need for 
postponement with respect to the plaintiffs in the Delaware 
cases. Experience has sustained the wisdom of the result 
decreed by the Delaware Courts. It is, therefore, our 
recommendation, that the proper order to be entered in the 
instant Delaware cases, involving the named plaintiffs, is 
an affirmance of the decision of the Supreme Court of 
Delaware.

II. Recommendations With Respect to the Mandate.

18 Brief for Petitioners on the Mandate

(A) Introduction.
This Court in its decision on May 17, 1954 requested 

that the parties to the several actions before this Court 
present further argument on questions formerly pro­
pounded by this Court with respect to the form of relief 
to be given pursuant to its decision. The Court expressed 
a willingness to receive the views of the Attorney General 
of the United States and the Attorneys General of those 
States which either require or permit segregated public 
education.

In view of the foregoing recommendation with respect 
to the Delaware cases, our discussion of the questions raised 
by this Court is for the assistance of the Court in the formu­
lation of a proper mandate. The discussion is presented as 
an aid to the Court, recognizing that many of the problems



raised by the other States bear a striking similarity to prob­
lems existing in parts of the State of Delaware. Moreover, 
the relief granted by this Court in the cases before it will 
be the prophetic handiwork from which must flow the 
orderly desegregation of public education in a large seg­
ment of the country.

(B) This Court May and Should Permit a Gradual Adjust­
ment from Segregated Public Education to a System
Without Race Distinction.
By the decision of May 17, 1954, this Court has in­

validated almost a century of social tradition which has 
been perpetuated under apparent constitutional sanction 
for two generations.24 25 Social thinking, public mores and 
school expenditures have been founded upon the time- 
accepted doctrine of “ separate but equal” public education. 
The factual review which appears earlier in this brief, as 
well as similar reviews made in the briefs submitted on be­
half of other states, demonstrate the somber extent to which 
the doctrine of segregation in public education saturates 
the thinking of the citizens of some of our states. This 
Court has eradicated the constitutional sanction of this 
tradition. A transition is required which only time can 
effectuate. Shock is not the medium by which this transi­
tion can be accomplished.

In formulating the appropriate relief, it must be borne 
in mind that this Court has redefined a basic constitutional 
right. In all of the cases before this Court, with the excep­
tion of the Delaware cases,26 the lower courts either found 
factual equality26 or avoided the consequences which the 
Court now considers by allowing the public school author­
ities an opportunity to improve their facilities in order to

24. Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 S. Ct. 
1138.

25. Gebhart v. Belton, — Del. Ch. -—, 91 A. 2d 137.
26. Brown, v. Board of Education of Topeka, 98 Fed. Supp. 797; 

Briggs v. Elliott, 103 Fed. Supp. 920.

Brief for Petitioners on the Mandate 19



meet the requirements of the “ separate but equal” doc­
trine.27 Opportunity to equalize facilities is now of no 
significance if there is racial segregation. For the first 
time, this Court has eliminated considerations of equality 
of treatment. The Court in its interdiction of segregated 
facilities has struck at the very heart of the public school 
system in many states and of necessity has put in issue the 
status of not only the named plaintiffs but all children who 
are a part of segregated school systems.

The cases before this Court are from courts of equity. 
One of the characteristics which has perpetuated the great­
ness of equity jurisdiction is its flexibility of remedy. In 
Hecht Co. v. Bowles, 321 U. S. 321, 329, 88 L. ed. 754, 64 
S. Ct. 587, 592, this Court said:

“ The essence of equity jurisdiction has been the 
power of the Chancellor to do equity and to mould each 
decree to the necessities of the particular case. Flex­
ibility rather than rigidity has distinguished it. The 
qualities of mercy and practicality have made equity 
the instrument for nice adjustment and reconciliation 
between the public interest and the private needs as 
well as between competing private claims.”

Equity “ may mold its decree so as to accomplish practical 
results—such results as law and justice demand.” North­
ern Securities Co. v. United States, 193 U. S. 197, 360, 24 
S. Ct. 436, 466.

In the formulation of equitable relief, “ it is always the 
duty of a Court of equity to strike a proper balance between 
the needs of the plaintiff and the consequences of the giving 
of the desired relief. ’ ’ Eccles v. Peoples Bank of Lakewood 
Village, 333 U. S. 426, 431, 92 L. ed. 784, 68 S. Ct. 641, 644.

Considerations of the public interest are of great im­
portance in the formulation of an appropriate equity decree.

27. Davis v. County School Board, 103 Fed. Supp. 337; Briqqs 
v. Elliott, 98 Fed. Supp. 529.

20 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 2 1

“ Courts of equity may, and frequently do go 
much farther both to give and withhold relief 
in furtherance of public interest than they are ac­
customed to go when only private interests are in­
volved.” Virginian Railway Go. v. System Federation 
No. 40, 300 U. S. 515, 552, 81 L. ed. 789, 57 S. Ct. 592, 
601; see also Mercoid Corp. v. Mid-Continent Invest­
ment Co., 320 U. S. 661, 88 L. ed. 376, 64 S. Ct. 268; 
Securities and Exchange Comm. v. U. S. Realty and 
and Improvement Co., 310 U. S. 434, 84 L. ed. 1293, 60 
S. Ct., 1044; Porter v. Warner Holding Co., 328 U. S. 
395, 90 L. ed. 1332, 66 S. Ct. 1086.
Time for adaptation or readjustment to a policy de­

clared by a court is an important potion to which the courts 
have adverted in striving for the equitable remedial bal­
ance. This principle has been applied in at least two im­
portant branches of the law, namely in cases involving elim­
ination of nuisances and in cases of violation of the anti­
trust laws.

In the nuisance field, the leading case of Georgia v. 
Tennessee Copper Company, 206 II. S. 230, 51 L. ed. 1038, 
27 S. Ct. 618, is an example in which this Court determined 
that injunctive relief should be given “ after allowing a 
reasonable time to the defendants to complete the struc­
tures that they are now building, and the effort that they 
are making to stop the fumes.” The decisions of various 
state courts are in accord with the Georgia case, supra. 
Hughson v. Wingham (Wash. S. Ct. 1922) 120 Wash. 327, 
207 P. 2, 27 ALR 327; Caretti v. Broring Building Co. (Md. 
Ct. App. 1926) 150 Md. 198, 132 A. 619, 46 ALR 1; State v. 
Hutchins (N. H. S. Ct. 1919) 79 N. H. 132, 105 A. 519, 2 
ALR 1685.28

Another case in which this Court allowed a reasonable 
time for adjustment to the court’s holding is the case of

28. Other cases granting a reasonable time for adjustment to the 
holding of the court in the field of nuisance appear in an annotation 
in 46 ALR pp. 35-37.



New Jersey v. New York, 283 U. S. 473, 75 L. ed. 1176, 51 
S. Ct. 519. By this decision, this Court held that the State 
of New Jersey was entitled to relief from the dumping of 
New York City garbage into the ocean off the New Jersey 
coast. This Court permitted New York City to have a 
period of approximately one and a half years to conform 
to its decision. New Jersey v. New York, 284 U. S. 585, 75 
L. ed. 506, 52 S. Ct. 120. Subsequent action before this 
Court resulted in postponing the finality of the court’s de­
cision until December 1935, a period of four years from 
the entry of the first order in 1931.29

The complexity of modern business organization has 
on various occasions led this and other courts to provide 
for deferred relief. In cases where immediate injunctive 
relief would have caused substantial public injury by cut­
ting off the flow of vital commodities, this Court has per­
mitted a period of transition. TJ. 8. v. American Tobacco 
Co., 221 U. S. 106, 31 S. Ct. 632, 55 L. ed. 663; Standard Oil 
Co. v. United States, 221 IT. S. 1, 31 S. Ct. 502, 55 L. ed. 619. 
The Court will consider the best method of accomplishing 
the declared result “ with as little injury as possible to the 
interests of the general public.” United States v. Ameri­
can Tobacco Co., supra.

Courts have faced the realities of complex situations 
and after determination of the basic rights involved have 
permitted extended periods for the formulation of an equi­
table plan to implement the Court’s decision. United States 
v. Paramount Pictures, Inc., 334 IT. S. 131, 92 L. ed. 1260, 
68 S. Ct. 915; United States v. National Lead Co., 332 IT. S. 
319, 67 S. Ct. 1634, 91 L. ed. 2077. This Court, in passing 
upon the length of the period of transition, has extended 
that period beyond that fixed by the lower court. United 
States v. American Tobacco Co., supra.

In the light of the numerous actions of this Court in 
permitting flexible adaptation of relief to existing condi­

29. New Jersey v. New York, 296 U. S. 259, 80 L. ed. 214, 56 
S. Ct. 188.

22 Brief for Petitioners on the Mandate



tions, there is ample precedent for the granting of time 
for adjustment in the cases now before this Court.

This Court must determine whether the equitable bal­
ance militates in favor of gradual rather than immediate 
relief. Under the “ separate but equal” doctrine, this Court 
declared that a plaintiff who was deprived of educational 
facilities equal to those made available by the state to any 
other race was being deprived of a personal right,30 of a 
nature which entitled the injured party to immediate ad­
mittance to white educational facilities.31 The cases in 
which that doctrine was announced involved institutions 
of higher learning.32 The determination of the respective 
cases affected few except the individual plaintiffs. Deseg­
regation was effected at a level where the intellectual and 
philosophical approach to the racial problem and the ma­
turity of those affected in all probability would lead to a 
degree of acceptance or tolerance not to be found in elemen­
tary and high schools. The extent of racial desegregation 
involved in those cases was minimal.

Whether the right to immediate admission to white 
schools is an absolute right even under the “ separate but 
equal” doctrine remains open to question. In the case of 
Fischer v. Hurst, 333 U. S. 147, 68 S. Ct. 389, 92 L. ed. 604, 
this Court had occasion to consider whether the order en­
tered by the District Court pursuant to the mandate of 
this Court in Sipuel v. Board of Regents of University of 
Oklahoma, supra, properly complied with the mandate.

30. State of Missouri, ex rel. Gaines v. Canada, 305 U. S. 337, 
59 S. Ct. 232, 83 L. ed. 208.

31. McLaurin v. Oklahoma State Regents for Higher Education, 
339 U. S. 637, 70 S. Ct. 851, 94 L. ed. 1149.

32. Sipuel v. Board of Regents of University of Oklahoma, 332 
U. S. 631, 68 S. Ct. 299, 92 L. ed. 247 (Law School); Sweatt v. 
Painter, 339 U. S. 629, 70 S. Ct. 848, 94 L. ed. 1114 (University of 
Texas Law School) ; McLaurin v. Oklahoma State Regents for 
Higher Education, supra, (University of Oklahoma) ; State of Mis­
souri ex rel. Gaines v. Canada, supra, (School of Law of State Uni­
versity of Missouri).

Brief for Petitioners on the Mandate 23



The order of the District Court, which alternatively di­
rected (1) that plaintiff he admitted to the University or 
(2) that defendant refuse admission to all applicants until 
a separate law school of equal facilities and standing could 
be established, was held by this Court not to have departed 
from this Court’s mandate.

Factors which weighed in favor of immediate relief 
under the “ separate but equal” cases are overweighed by 
problems of social acceptance and social, economic and 
facility readjustment growing out of the decision of May 
17, 1954. At least in some areas, there must be a twilight 
era when personal rights must give way to community prob­
lems and general public welfare.

Recognizing the pressing need in certain areas for 
permitting gradual readjustment to the principle of non­
segregation, we direct the Court’s attention to the need 
for clarification of the position of the old “ separate but 
equal” doctrine, insofar as there may be factual educa­
tional inequality. As we have pointed out, heretofore, a 
finding of inequality has been held to justify immediate ad­
mission to a theretofore segregated school. If this prin­
ciple is to continue and is applied at the elementary and 
high school level, there is no doubt of the serious repercus­
sions which will follow. Hence, it is submitted that this 
Court should make amply clear that any relief in the field 
of public education should be given on the basis of the 
rights declared by this Court in its decision of May 17, 
1954 and that all relief should be based upon the principles 
which we have discussed.

(C) This Court Should Remand the Cases to the Lower 
Courts for Formulation of Decrees for the Admit­
tance of Plaintiffs to Public Schools Without Regard 
to Race as Soon as Practicable Within a Time Limit to 
Re Set by This Court.
Based upon the conclusion reached in the foregoing 

section that a period of gradual adjustment to non-segre-

24 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 25

gated public education is advisable in some localities, it is 
necessary to consider the best method of accomplishing this 
result.

From the factual review appearing in this brief, as well 
as those appearing in briefs filed on behalf of other states, 
it is evident that a wide diversity of public attitude exists 
on the subject of non-segregation. This diversity exists not 
only between states but even within the states, as in the case 
of the State of Delaware. Immediate desegregation result­
ing in an uneventful transition in one locality would result 
in strong community upheaval in another locality. Hence, 
there is no standard formula, no elixir by which the transi­
tion can be uniformly effected.

The transition can be moulded only through wisdom 
based upon a knowledge of the facts and circumstances and 
psychology of the community affected. These facts can 
best be obtained and the transition can be most smoothly 
effectuated by the courts in which these cases arose.

This Court has on numerous occasions remanded cases 
to lower courts for proceedings in accordance with the man­
date of this Court. Russell v. Southard, 12 How. (U. S.) 
139, 13 L. ed. 927; Universal Battery Co. v. United States, 
281 U. S. 580, 50 8. Ct. 422, 74 L. ed. 1051; Sipuel v. Board 
of Regents of Oklahoma University, supra; Sweatt v. 
Painter, supra.

The ultimate disposition of the cases before the Court 
requires the determination of additional facts. Where ad­
ditional facts are required, this Court has remanded cases 
to the lower court for ascertainment of those facts. Pan­
ama Mail S. S. Co. v. Vargas, 281 U. S. 670, 50 S. Ct. 448, 
74 L. ed. 1105; Universal Battery Co. v. United States, su­
pra; Ballard v. Searls, 130 U. S. 50, 9 S. Ct. 418, 32 L. ed. 
846. This procedure has been followed in fixing the relief 
to be given. Rogers v. The St. Charles, 19 How. (U. S.) 
108, 15 L. ed. 563; United States v. American Tobacco Co., 
supra.

This Court does not have before it, nor should it under­
take, the Herculean task of outlawing the existing system



of public education, nor of creating a substitute. This 
Court has before it the rights of individual children. Those 
rights can best be brought to fruition at the local level by 
the courts of first instance. To this end, the cases should be 
remanded for determination of the immediacy or remote­
ness of the relief.

The mandate or decree of this Court should be the bea­
con light by which the further action of the lower courts 
can be guided. It should make clear that the rights enun­
ciated in the decision of May 17, 1954 are to be effectuated 
by appropriate relief either immediately or as soon there­
after as community acceptance will permit. Eelief should 
be deferred by the local courts only after thorough consid­
eration is given to numerous factors such as the history 
of race relations in the community affected, the extent of 
social and economic segregation within the community, the 
permanency of the population, the extent of migration to 
and from the community, and the condition and capacity 
of existing facilities. Eecognizing that the ultimate 
achievement is the granting of full relief to the plaintiffs, 
in order to entertain a deferment in the perfection of that 
goal, the Court must be convinced that those charged with 
the responsibility of effecting total integration are taking 
constructive steps toward the elimination of the segrega­
tion barrier and that those steps are being bona fidely car­
ried out as expeditiously as it is possible.

In approaching this problem, the realization must be 
ever present that the Court is the instrumentality through 
which an individual is given the opportunity to exercise 
his constitutional right. It cannot and does not undertake 
to create or enforce social acceptance for an individual or 
race. The words of Chief Justice Yinson in the case of 
McLaurin v. Oklahoma State Regents for Higher Educa­
tion, supra, are particularly pertinent. He stated (at p. 
454):

“ The removal of the state restrictions will not
necessarily abate individual and group predilections,

26 Brief for Petitioners on the Mandate



Brief for Petitioners on the Mandate 27

prejudices and choices. But at the very least, the state 
will not be depriving appellant the opportunity to se­
cure acceptance by his fellow students on his own 
merits. ’ ’
A further subject for inclusion in the mandate or de­

cree of this Court is designation of a final or ultimate date 
within which communities may expect courts to defer the 
granting of immediate relief to those claiming violation of 
their constitutional rights because of a segregated public 
education system. Recognizing the local resistance to the 
perfection of relief under the decision of May 17, 1954 and 
a strong desire to defer the piercing of the segregation bar­
rier for an extended—not an indefinite—period, it is felt 
that although broad discretion should be vested in the lower 
courts in deferring relief, this Court should set a cut-off or 
ultimate date for the deferring of relief in order that the 
decision of May 17, 1954 may not be completely thwarted.

In the prior section of this brief dealing with the advis­
ability of providing for a period of time within which re­
lief is to be ultimately granted, we have cited various cases 
in which this Court has permitted a deferral of ultimate 
relief. Deferral periods of six months33 and one year34 
have received the approval of this Court in the anti-trust 
field. An adjustment over a four year period was per­
mitted in the New York City garbage case,85 and there was 
a span of nine years before ultimate disposition in the case 
in which copper companies were prohibited from discharg­
ing noxious gases over the State of Georgia.86 33 34 35 36 * * *

33. Standard Oil Co. v. United States, supra; United States v. 
American Tobacco Co., supra; United States v. Paramount Pictures, 
Inc., supra.

34. United States v. National Lead Co., supra.
35. New Jersey v. New York, 283 U. S. 473, 75 L. ed. 1176, 51 

S. Ct. 519; 284 U. S. 585, 75 L. ed. 506, 52 S. Ct. 120; 296 U. S. 
259, 80 L. ed. 214, 56 S. Ct. 188.

36. Georgia v. Tennessee Copper Co., 206 U. S. 230, 51 L. ed.
1038, 27 S. Ct. 618; 237 U. S. 474, 59 L. ed. 1054, 35 S. Ct. 631;
237 U. S. 678, 59 L. ed. 1173, 35 S. Ct. 752; 240 U. S. 650, 60 L. ed.
846, 36 S. Ct. 465.



28 Brief for Petitioners on the Mandate

Although these precedents are not factually analogous 
to the present situation, they are indicative of the extent 
to which this Court has permitted deferment of relief in 
order to effect a gradual transition. We respectfully sub­
mit that this Court out of the bounty of its wisdom should 
fix as an ultimate date beyond which there will be no fur­
ther postponement of relief under the decision of May 17, 
1954 a date which will afford to the States an opportunity 
to plan, educate and promote community acceptance and 
orderly physical fruition of desegregation.

CONCLUSION.
In the light of the decision of this Court of May 17, 

1954 and the successful integration of respondents into the 
Claymont and Hockessin Schools, the two Delaware cases 
should be affirmed.

The mandate of this Court should include instructions 
to the lower courts that, in granting or deferring immediate 
relief, they shall exercise equitable discretion according to 
local conditions provided that a constructive transitional 
program is shown to be in progress and subject to the lim­
itation that ultimate relief by way of admission on a non- 
segregated basis shall be effected no later than a date which 
this Court should fix.

Respectfully submitted,

H. Albert Young,
Attorney General of the State of Delaware,

Clarence W. Taylor,
Deputy Attorney General of the State of Delaware,

A ndrew D. Christie,
Special Deputy to the Attorney General.



D
is

tri
ct

s 
Sc

ho
ol

s

EXHIBIT 1

SCHOOLS, SCHOOL DISTRICTS, AND ATTENDANCE AREAS FOR THE EDUCATION OF COLORED CHILDREN, SEPTEMBER, 1954

(A)
Colored Schools in the 

Special Districts 
and colored 

School Districts

(B)
White Dist. in which the 
school bldg, of Column 
(A) is geographically 

located

(C)
Spec. Dists. which 
have Administrative 

Jurisdiction over 
schs. listed in 
Column (A)

(D)
Attendance Area of 
schs. and sch. dists. 
in Col. (A) totally 
within the boundary 

of a Spec. Dist.

(E)
Attendance Area of schs. 
and sch. dists. in Col. 
(A) totally within bound­
ary of a white State 

School District

(F)

Attendance Area of Schools or School Dists. in Col, (A) within the 
boundaries of more than one white district

Special Districts Other White School Districts
Star Hill Caesar Rodney Caesar Rodney Caesar Rodney
Dunbar Caesar Rodney Caesar Rodney Caesar Rodney
Claymont Col. Claymont Claymont Claymont
Booker T. Washington Dover Dover Dover, Caesar Rodney, Frederica, Kenton, Hartly, Magnolia, Fel-

Smyrna ton, Leipsic, Little Creek, Clayton, Oak
Point, Rose Valley, Wiley’s

Richard Allen Georgetown Georgetown Georgetown
P. S. duPont Harrington Harrington Harrington
Paul L. Dunbar Laurel Laurel Laurel Delmar, Bethel
Lewes Col. Lewes Lewes Lewes, Rehoboth
Benjamin Banneker Milford Milford Milford
Newark Col. Newark Newark Newark
Booker T. Washington New Castle New Castle New Castle
Buttonwood New Castle New Castle New Castle
Frederick Douglas Seaford Seaford Seaford Blades
Thomas D. Clayton Smyrna Smyrna Smyrna Clayton
Delaware City Delaware City Delaware City
Hockessin Col. Hockessin Hockessin, Yorklyn
Iron Hill Newark Newark
Leis Chapel Townsend Townsend
L. L. Redding Middletown Newark, Smyrna Delaware City, Townsend, Middletown,

Odessa, Commodore MacDonough,
Port Penn, Eden, Clayton

Millside Rose Hill-Minquadale Rose Hill-Minquadale
Mt. Pleasant Middletown Middletown
Newport Newport Alexis I. duPont Newport, Marshallton, Christiana, Hoc-

kessin, Stanton, Alfred I. duPont,
Yorklyn, Richardson Park, Oak Grove

Townsend Townsend Townsend
Cheswold Dover Dover
Fork Branch Dover Dover
Henry Comprehensive Dover Dover, Smyrna, Caesar Felton, Oak Point, Magnolia, Rose

Pligh School Rodney, Harrington Valley, Wiley’s, Frederica, Leipsic,
Hartly, Little Creek, Kenton, Clayton

Kenton Kenton Kenton
Lockwood Hartly Hartly
Mt. Olive Magnolia Magnolia
Union Frederica Harrington Frederica, Felton, Magnolia
Viola Felton Caesar Rodney Felton
Woodside Caesar Rodney Caesar Rodney
Blocksom’s Seaford Seaford
Bridgeville-T rinity Bridgeville Bridgeville
Delmar Delmar -— ----———— D etear——-———— —---- '-- ----•. " '
Drawbridge Lewes Lewes, Georgetown
Ellendale Ellendale Ellendale
Frankford J. M. Clayton J. M. Clayton, Lord Baltimore, Roxana
Jason Comprehensive All Special Dists. in All State Board Unit schools in Sussex

High School Georgetown Sussex County County
Greenwood Greenwood Greenwood, Farmington
Lincoln Lincoln Lincoln
Millsboro Millsboro Millsboro
Milton Milton Milton
Nanticoke Indian Millsboro Millsboro
Nassau Lewes Lewes
Owen’s Corner Delmar Delmar
Portsville Laurel Laurel Bethel
Rabbit’s Ferry Lewes Lewes
Rehoboth Rehoboth Rehoboth
Ross Point Laurel Laurel
Selbyville Selbyville Selbyville, Roxana
Slaughter Neck Milford Milford Lincoln, Milton
Warwick 203 Millsboro Millsboro
Warwick 225 Millsboro Millsboro
Williamsville Selbyville Selbyville



Exhibit 2 31

EXHIBIT 2

June 9, 1954
Mr. J. Olirum Small 
President, State Board of Education 
Delaware Trust Building 
Wilmington, Delaware
Re: Gebhart v. Belton, et al. and Bulah, et al.
Dear Mr. Small:

The United States Supreme Court, by its unanimous 
decision in Brown v. Board of Education, has struck down 
‘ ‘ the separate hut equal doctrine ’ ’ in the field of public edu­
cation.

The Court decided that segregation of children in pub­
lic schools solely on the basis of race, even though the phys­
ical facilities and other tangible factors may be equal, de­
prives the children of the minority group of equal educa­
tional opportunities.

The Court said, “ separate educational facilities are 
inherently unequal” and concluded that, “ the plaintiffs 
and others similarly situated, for whom the actions have 
been brought, are, by reason of the segregation complained 
of, deprived of the equal protections of the laws guaranteed 
by the Fourteenth Amendment.

According to the opinion, we are required to submit 
briefs by October 1, 1954 for the purpose of assisting the 
Court in formulating decrees to bring about an effectual 
gradual adjustment from existing segregated systems to a 
system not based on color distinctions.

The Court recognized that the decision presents prob­
lems of considerable complexity because of the great variety 
of local conditions. The opinion nullifies our constitutional 
provision and its statutory counterpart providing for sep­
arate hut equal educational facilities. The Court an­
nounced that segregation is a denial of the equal protection 
of the laws.



32 Exhibit 2

The opinion is not a self-executing one and does not 
call for immediate integration. It is possible for any school 
district, however, where circumstances permit and the sit­
uation warrants, to effect integration consonant with the 
law of the land as now announced by the recent Supreme 
Court opinion without doing violence to the Constitution 
and laws of our own State, notwithstanding the fact that 
the mandate of the United States Supreme Court has not 
yet been handed down.

On the other hand, the State Board of Education may 
well require time within which to bring about integration in 
an orderly fashion within the spirit and meaning of the 
recent Supreme Court decision. I  am sure that the Board 
will formulate some concrete plan directed towards an ef­
fective gradual adjustment from existing segregation in 
the public schools in Delaware to a system of non-segre­
gation in accordance with the spirit, purpose and intent of 
the opinion as expeditiously as it is possible for it to do so.

I should like to meet with the members of your Board 
so that we may review together a number of problems, some 
of which we touched upon at our conference with the Gover­
nor, relating to specific localities in our State in order that 
I may be in a position to inform the members of the United 
States Supreme Court what plan for de-segregation has 
been adopted by our Board of Education of the State of 
Delaware, and when we expect it may finally be put into 
effect.

Based upon the plan your Board has made and the in­
formation given me to carry that plan into effect, I  will be 
able to present to the United States Supreme Court the 
specific terms and directions upon which the decree or man­
date should be framed.

Very truly yours,
/ s '/  H. Albert Y oung 

A ttorney General

HAY :mjw



Exhibit 3 33

EXHIBIT 3

State Board of Education Policies (I) Regarding Desegre­
gation of the Schools of the State

The State Board of Education held a special meeting 
in Dover, Friday evening, June 11, and issued the following 
statement:

The United States Supreme Court unanimously de­
clared that segregation in the public schools of the United 
States is unconstitutional. At that time the Court permitted 
a period within which states could present further argu­
ments on the implementing of its action.

As a general policy, the State Board of Education fully 
intends to carry out the mandates of the United States Su­
preme Court decision as expeditiously as possible. It is 
recognized that communities differ one from the other in 
tradition and attitudes; therefore, the actual carrying out 
of the integrative process will require a longer period of 
time in some parts of the State than in others.

Accordingly, the State Board of Education adopted 
the following statement of policy regarding non-segrega­
tion in the public schools of Delaware:

A. Since the Wilmington School authorities have in­
dicated that they are in a position to move promptly 
in the direction of integration, the necessary permis­
sion for ' embarking upon this program is hereby 
granted the Wilmington Board of Education.
B. It is the considered opinion of the State Board of 
Education that the school authorities together with 
interested citizen groups throughout the State should 
take immediate steps to hold discussions for the pur­
pose of (1) formulating plans for desegregation in their 
respective districts and (2) presenting said plans to 
the State Board of Education for review.



34 Exhibit 3

C. The State Board of Education will examine pro­
posed programs of integration in light of the following 
considerations:

1. School Districts
a. There are many items of legislation which 
must be prepared in order to effect these 
changes and immediate plans are being made to 
prepare such legislation for presentation to the 
General Assembly of 1955, for example, the 
elimination of Negro districts as they now exist 
and their assimilation into taxing units already 
existing or later to be created.
b. The State Board of Education intends to 
make every effort possible within the limits of 
existing legislation not only to avoid the crea­
tion of educationally unsound units, but also to 
promote as far as possible the formation of 
larger and more efficient administrative units.

2. Attendance Areas
a. Economy requires the continued use of many 
of the school buildings now existing in the State.
b. In all districts attendance areas are to be 
fixed by the local school authorities under regu­
lations to be established by the State Board of 
Education.

3. School Construction
a. The State Board of Education must reap­
praise the need for the construction of certain 
schools or additions for some districts author­
ized under the 1953 School Construction Act, 
but these and similar ones will be approved by 
the State Board of Education if and when the 
local school authorities submit plans showing 
the place of such construction in an over-all 
educational program for the community.



Exhibit 3 35

b. The necessity of proceeding with some of 
these plans as rapidly as possible is recognized 
because of the local school census data, but the 
State Board of Education will insist upon hav­
ing, in at least outline form, a plan for the use 
of such additional facilities before approving 
further construction.

The resources of the State Department of Public In­
struction will be available to all districts in the solution 
of these problems.

The State Board of Education has confidence that the 
people of the State of Delaware will meet the challenge of 
the times courageously, intelligently, and understandingly.

Adopted 
June 11, 1954

State B oard oe E ducation

George R. Miller, J r.
George R. Miller, Jr.

Secretary



36 Exhibit 4

EXHIBIT 4

PROVIDING EQUAL EDUCATIONAL OPPORTUNITY 
IN THE WILMINGTON PUBLIC SCHOOLS

Resolution adopted by the Board of Public Education in 
Wilmington, on August 2, 1954



Exhibit 4 37

BOARD OF EDUCATION IN WILMINGTON

Gail Belden, President

E leanor L. J. Cussler, Vice President

W illiam H. Cantwell A aron F inger 

T homas J . H ealy, J r. H ilmar L. J ensen

ADMINISTRATIVE COUNCIL

W ard I. Miller, Superintendent

A. B. A nderson, Director Vocational Education 
Muriel Crosby, Director Elementary Education 
J ohn J . Murray, Director, Business Administration 
M. Channing W agner, Director, Secondary Education



38 Exhibit 4

RESOLUTION REGARDING INTEGRATION 
OF THE

WILMINGTON PUBLIC SCHOOLS

On May 17, 1954, the Supreme Court of the United 
States handed down its unanimous decision that segrega­
tion of pupils in the public schools is a violation of the 
federal constitution and represents a denial of the equal 
protection of the laws.

However, the court saw fit to postpone the issuance 
of decrees implementing its opinion and ordered the cases 
restored to the docket for reargument beginning October 1, 
1954. Following these considerations, it is expected that 
the formal decrees will be issued by the court.

Under date of June 9, 1954, the Honorable H. Albert 
Young, Attorney General of the State of Delaware wrote 
to Mr. J. Ohrum Small, President of the State Board of 
Education as follows:

“ According to the opinion, we are required to 
submit briefs by October 1, 1954 for the purpose of 
assisting the court in formulating decrees to bring 
about an effectual gradual adjustment from existing 
segregated systems to a system not based on color 
distinction.

“ The Court recognized that the decision presents 
problems of considerable complexity because of the 
great variety of local conditions. The opinion nullifies 
our constitutional provision and its statutory counter­
part providing for separate but equal educational facili­
ties. The Court announced that segregation is a denial 
of the equal protection of the lawrs.

“ The opinion is not a self-executing one and does 
not call for immediate integration. It is possible for



Exhibit 4 39

any school district, however, where circumstances per­
mit and the situation warrants, to effect integration 
consonant with the law of the land as now announced 
by the recent court opinion without doing violence to 
the Constitution and laws of our own State, not with­
standing the fact that the mandate of the United States 
Supreme Court has not yet been handed down.”

On June 11, 1954, the State Board of Education issued 
a formal statement based on the opinion of the attorney- 
general as given above, authorizing the Board of Public 
Education in Wilmington to proceed with the development 
of plans for the integration of the city schools and asking 
that such measures as are approved be forwarded to the 
State Board for inclusion in the brief to be submitted to 
the Court before October 1.

At a meeting of the Board of Public Education in 
Wilmington held on June 21, 1954, the Superintendent pre­
sented specific proposals regarding integration of the city 
schools. These were considered with great care and thor­
oughness. The proposals were studied again at the regular 
meeting held on July 8,1954. At this time opportunity was 
given individuals or representatives of organizations or 
groups to put forward any statement or materials. A 
number of persons availed themselves of this opportunity. 
The proposals of the Superintendent and staff and the 
remarks of individuals were well covered in the press and 
on the radio and television.

Since that time numerous letters and calls have been 
received by the Board and the Superintendent both in sup­
port of and in opposition to the plans under consideration.

Following a complete review of all the questions that 
have been raised, on August 2,1954, the Board approved by 
resolution the following plan and authorized the Superin­
tendent to take the steps necessary to put it into effect.



4 0 Exhibit 4

POLICIES REGARDING INTEGRATION
1. The Board desires to take at once such steps, as are prac­

tical and possible toward the implementation of the de­
cision of the Supreme Court. The integration of the 
summer school program, of the course in practical nurs­
ing and of certain classes in special education, constitute 
initial steps toward that objective.

2. The following policies are approved and the Superin­
tendent is authorized to put them into effect immediately.

A. Policy regarding elementary schools
Attendance areas will be established around each 

elementary building unit. While pupils living in a 
particular area would normally attend the school lo­
cated in that area, nevertheless, in accordance with 
the policy now in effect, parents may request transfer 
of their children to another unit. Reassignment will 
be made if space elsewhere is available.

B. Policies regarding attendance of pupils in trade and 
industrial courses at the Brown Vocational High 
School and the Howard High School.
a. All courses offered in only one of these high 

schools shall be open to all students regardless of 
residence.

Courses offered only at Brown—1954-55

Commercial Art 
Needle Trades 
Printing

Industrial Chemistry 
Plumbing
Radio and Television

Courses offered only at Howard, 1954-55
Shoe Repair Auto Body and Pender



Exhibit 4 41

b. If found qualified, pupils now enrolled in the Elec­
tricity course at Howard may transfer to Brown 
after completion of the units on “ Wiring.”

c. Requests for enrollment in the above courses by 
students already registered in other courses will 
be approved only after a conference with the coun­
selors and the principals of the schools concerned.

d. Opportunity for new registration in the courses 
listed above and guidance conferences will be pro­
vided up to August 20, 1954.

0. Policies regarding reassignment of teaching staff
Transfer and reassignment of the teaching staff shall 
be made as necessary to implement the above policies.

D. Policies regarding evening schools and all activities 
of extended services
All approved classes shall be open to students on an 
equal basis.

E. Policies regarding junior and senior high schools
The integration of junior and senior high schools 
presents difficult problems which will require further 
study. Therefore, for the school year 1954-55, no 
change will be made in the operation and attendance 
of the junior and senior high schools, with the follow­
ing exception:

Students in the eleventh or twelfth grades desiring 
advanced work in classes not offered in one school 
may transfer to another in which such courses are 
given.



42 Exhibit 4

PROCEDURES TO BE FOLLOWED IN 
REQUESTING TRANSFER OF PUPILS

All requests for transfer of pupils from one school 
unit to another must be made by parents or guardians 
in writing to the Superintendent of Schools. The 
name and grade of each child, home address and tele­
phone number will be required. All requests should 
be filed not later than August 15, 1954. As soon as 
possible thereafter and not later than August 25, 
1954, parents will be notified in writing of the action 
taken on the request. Parents should call the office 
of the principal of the school to learn the elementary 
district in which they reside.



Exhibit d 43

ATTENDANCE AREAS OF ELEMENTARY SCHOOLS
1954 - 1955

Harlan
North-—City line
West —City line
South-—West of Market Street-—West 27th Street

East of Market Street—East 30th Street to 
junction of Claymont Street and Todd’s 
Lane, thence Todd’s Lane

East —City line

Shortlidge
North—West 27th Street
West —City line
South—West 21st Street
East —Market Street

Washington
North—West 21st Street
West —Between Brandywine Creek and West 21st 

Street-—City line
Between Brandywine Creek and Delaware 

Avenue—Yan Buren Street
Between Delaware Avenue and Eighth Street 

—Monroe Street
South—Between Van Buren Street and Monroe Street 

—Delaware Avenue
Between Monroe and Market Street—West 

Ninth Street
East —Market Street



44 Exhibits

Gray-
North —East 30th Street to junction of Claymont and 

Todd’s Lane, thence Todd’s Lane
West —Market Street
South—Market Street to junction of Jessup Street 

and East 14th Street-—Brandywine Creek, 
thence East 14th Street

East —City line 

Stubbs and No. 20
North—Market Street to junction of Jessup Street 

and East 14th Street—Brandywine Creek, 
thence East 14th Street

West —Market Street 
South—East Eighth Street 
East —City line

Drew and Pyle
North—East Eighth Street 
West —Market Street 
South —Christina River 
East —City line

Palmer and Elbert
North—Christina River 
West —Christina River 
South—City line 
East -—City line



Exhibit 4 45

Lore
North—Pennsylvania Avenue 
West —City line
South —Between western City line to Lincoln S tree t-  

City line
Between Lincoln Street and Broom S tree t-  

Beech Street
Bast Broom Street 

Williams
North-—Between Broom Street and Yan Buren Street 

—Pennsylvania Avenue
Between Van Buren Street and Monroe Street 

—Delaware Avenue
Between Monroe Street and Market Street— 

West Ninth Street
West —Broom Street 
South—Beech Street 
East —Market Street

Highlands
North—Brandywine Creek 
West —City line 
South —Pennsylvania Avenue- 
East —-Van Buren Street

Number 19
North -—Beech Street 
West —City line 
South -—City line 
East —Christina River



46 Exhibit 5

EXHIBIT 5

State of Delawabe 

(Seal)

State Boabd oe E ducation 
Dover, Delaware

Suggested P olicies fob Opening of S chool (II)

In the policy statement regarding the problem of de­
segregation issued by the State Board of Education it was 
clearly stated that all school districts should immediately 
take steps to develop plans for desegregation.

No pupils, except those with proper transfer permits 
shall be accepted by any school from other schools unless 
and until plans from that school for desegregation in that 
area have been approved by the State Board of Education.

In  September 1954 all buses will run as usual and all 
teachers will appear at their regular posts except in those 
cases where approved plans for desegregation have been 
made effective with the required administrative or organ­
izational changes.

Since the United States Supreme Court will hear fur­
ther arguments sometime in October to help that court find 
the best means of carrying out its decree, the State Board 
requests that all schools, maintaining four or more teachers, 
present a tentative plan for desegregation in their area on 
or before October 1,1954.

These plans will be considered tentative only, unless 
otherwise indicated by the school authorities.

Adopted by
State Board of Education 
August 19, 1954



Exhibit 6 47

EXHIBIT 6

State of Delaware 

(Seal)
State B oard of E ducation 

Dover, Delaware

Some I tems and Suggestions R elative to Desegregation
P lans ( III)

I ntroduction :

In order to facilitate the adoption by the State Board 
of Education of policies relating to the ending of segrega­
tion in Delaware, the State Board on June 9,1954, requested 
the local boards of education or school trustees to formulate 
and present proposals relating to the ending of segregation 
in their respective districts. Local boards are now asked 
to present their proposals or report the status of their 
studies not later than October 1, 1954.

The following data or suggestions are designed as a 
guide to local boards in arriving at a proposal for ending 
segregation in the respective school districts:

I tems to Be Considered in  P lanning :

In the preparation of a plan the following are essential 
data:

(a) Total number of children to be served in the 
district or districts involved.

(b) Total number of children who can be housed in 
the building or buildings available.

(c) Determination of the number of teaching posi­
tions to be used.

(d) Possible number of pupil applicants to be 
expected.

(e) Attendance rules and requirements.



48 Exhibit 6

S uggestions W h ic h  May Be Considered in  P l a n n in g :

It is suggested that in formulating plans to end segre­
gation local boards may desire to consult with a committee 
composed of lay and professional groups in their districts 
in order that such groups may contribute to the planning 
and may, in turn, become acquainted with the problems, if 
any, involved. The function of this committee would be 
solely advisory to the local board of education.

It is the sincere hope of the State Board of Education 
that all teachers presently employed and who have had 
successful experience will be retained in whatever pattern 
of integration that is ultimately developed.

For the sake of educational continuity and for the sake 
of maintaining an adjustment status of individuals, it is 
strongly suggested that, where possible, pupils be allowed 
to complete the grade group in which they are presently 
enrolled, e.g., a student attending the elementary school, 
grades 1-6, should be allowed to complete the six grades in 
that particular school situation. The same suggestion ap­
plies to the junior high school and the senior high school 
divisions.

School districts may contain one or more attendance 
areas. If more than one attendance area is contained in a 
school district, the following must be taken into con­
sideration :

(a) Gerrymandering—It is obvious that schools in 
physical areas inhabitated largely or alto­
gether by Negroes will be attended mostly or 
entirely by Negro children. The same will be 
true of certain schools in white sections. This 
results from geographic location and has noth­
ing to do with discrimination.
“ If attendance districts, however, are so con­
toured as to skip houses or blocks or to extend 
geographical peninsulas and islands into 
physically unified areas solely for the pur­
pose of including families of a particular race,



Exhibit 6 49

it is reasonably certain that the districting 
would be regarded as an invalid evasion of 
desegregation requirements.” (Harvard Law 
Review, v. 67, Number 3, Jan. 1954.)

(b) Maintaining Segregation in  Non-Segregated 
Schools—Colored pupils may not be sepa­
rated for intra-mural activities in study halls, 
or classrooms, nor shall there be any racial 
seating arrangement in the classrooms or else­
where in the school. (McLaurin v. Oklahoma 
State Regents, 339 U. S. 637 (1950)

(c) Administrative P ractices—N o board of edu­
cation nor board of school trustees shall set 
up special examinations or any entrance pro­
cedures the purpose of which is aimed at ex­
cluding Negro pupils from the white schools.

If a school district has more than one building serving 
a given grade, attendance at a particular school could be 
decided by choice of the student provided, in the event of 
insufficient space at a particular school, preference should 
be given students residing nearest the school in question.

The State Board of Education believes that constitu­
tional requirements are met either by integration within 
the fixed attendance areas or integration based on a single 
attendance area wherein freedom of choice is exercised to 
the extent that physical facilities will allow. The decision 
as to which type of attendance plan is established in a 
school district ultimately rests with the local board of 
education.

When the proposal made by a local board has been ap­
proved by the State Board, it will be the responsibility of 
the local board to present and explain the approved plan to 
the people of the district concerned.

Adopted by the
State Board of Education
August 26, 1954



50 Exhibit 7

EXHIBIT 7

Repoet oe Appeoved P lain's eoe 
Desegbegation and P upils I nvolved

District Grades desegregated White Colored
Wilmington Kindergarten through 

Grade 6 5,491 2,123
Howard High School 
(formerly colored) 10 554

Claymont All grades 1,184 48
New Castle Grades 9 through 12 575 21

Grade 1 268 15
Newark Grades 7 through 12 1,040 50
Alfred I. Grades 1, 2, 3, 5, 7, 9 941 7

duPont

Delaware

(Only one family 
involved)
Grades 7 through 12 54 20

City
Dover Desegregated for aca­

demic program in high 
school 716 19 eligible

Conrad Grades 10 through 12 650 19
Alexis I. 

duPont
High School and grade 
school 972 12

Hockessin Grades 1 and 5 106 7

T otal 12,007 2,895

The total number of white pupils as of September 30, 
1954 was 47,696 and the total colored 10,225, or a grand 
total of 57,921 white and colored pupils.