Briggs v. Elliot Reply Brief for Appellants

    I n  T he

IhtprattF (Emtrt nf Mnxtxb Btattz
O ctober T e em , 1952 

No. 101

HARRY BRIGGS, JR., et  al .,
Appellants,

v .
R. W. E lliott , Ch a ir m a n , J .  I). CARSON, et  al ., MEM­

BERS OF BOARD OF TRUSTEES OF SCHOOL 
DISTRICT No. 22, CLARENDON COUNTY, S. C.,
ET AL.,

Appellees.

Appeal from the United States District Court for the 
Eastern District of South Carolina

REPLY BRIEF FOR APPELLANTS

H arold R . B oulware 
R obert L. Carter 
T hurgood M arshall 
S pottswood W. R obinson , III  

Counsel for Appellants
W illia m  T. C olem an , J r.
George E .  C. H ayes 
George M . J ohnson  
W illia m  R. M in g , J r.
C onstance B aker  M otley 
J ames M. N abrit, J r.
F rank  D. R eeves 
J ack B . W e in s t e in

Of Counsel

P rin ted  by Law  R eporte r P r in tin g  Co., 518 5th  S t., W ash., D. C.



Page
Baskin v. Brown, 174 F. 2d 391________________________________  4
Birmingham v. Monk, 185 F. 2d 859 (CA 5, 1951), certiorari denied

341 U. S. 942 _________________ _______ ___________________  6
Buchanan v. Warley, 245 U. S. 60______________________________  6
Bush v. Kentucky, 107 U. S. I l l ,  120___________________________  3
Edwards v. California, 314 U. S. 160.. ________________________  2
Elkinson v. Deliesseline, 8 Fed. Cas. 493 (1823)__________________  5
Ex parte Yarbrough, 110 U. S. 651, 665_________________________ 3
Guinn v. United States, 238 U. S. 347, 363______________________  3
Hirabayashi v. United States, 320 U. S. 81______________________  2
Korematsu v. United States, 323 U. S. 214______________________  2
Lester v. Garnett, 258 U. S. 130, 136-137________________________ 3
McLaurin v. Oklahoma State Regents, 339 U. S. 637____________3, 4, 6
Missouri Ex Rel Gaines v. Canada, 305 U. S. 337________________  3
Morgan v. Virginia, 328 U. S. 373_____________________________  5
Neal v. Delaware, 103 U. S. 370, 389____________________________ 3
Nixon v. Herndon, 273 U. S. 536_______________________________  2
Rice v. Elmore, 165 F. 2d 387, certiorari denied, 333 U. S. 875______  4
Shelley v. Kraemer, 334 U. S. 1_______________________________  6
Skinner v. Oklahoma, 316 U. S. 535___________________________  2
Steele v. Louisville & N. R. Co., 323 U. S. 192... ________________  2
Strauder v. West Virginia, 100 U. S. 303, 307___________________  3
Sweatt v. Painter, 339 U. S. 629_____ __ ___ ____________________  3

Other Citation

57 Harvard Law Review, 328, 338--------------------------------------------  5

TABLE OF CASES



I n  T hr

Buptm? CfJmtrt uf thr Hutton States
O ctober T er m , 1952

No. 101

HARRY BRIGGS, JR., et  al., 
Appellants,

v.
R. W. E llio tt , Ch a ir m a n , J. D. CARSON, e t  al., MEM­

BERS OF BOARD OF TRUSTEES OF SCHOOL 
DISTRICT No. 22, CLARENDON COUNTY, S. C.,
ET AL.,

Appellees.

Appeal from the United States District Court for the 
Eastern District of South Carolina

REPLY BRIEF FOR APPELLANTS

I .

A major part of the brief of appellees is an attempt to 
sustain the amazing proposition which they state this way:

“ The District Court correctly held that the conflict 
of opinion regarding the effects of segregation and its 
abolition present questions of legislative policy and not 
of constitutional r i g h t (Emphasis added.)

This proposition is amazing in its bald assertain that, if 
a state decides that its continuing imposition of segregation 
is desirable, there is no issue for the independent decision 
of this Court as to whether segregation can be squared with 
equal protection of the laws. We think it a sufficient answer



2

to this contention to point out that it is no more or less than 
a denial that the doctrine of judicial supremacy extends to 
the Constitutional characterization of state action in the or­
ganization of public education. Thus, appellees’ argument 
is a negation of the very postulates and whole history of 
constitutional government in the United States.

Actually, this case invites such authoritative exposition 
and decision as only this Court can give upon the meaning 
and requirements of “ equal protection of the laws” in the 
organization of public education, and the consistency or 
inconsistency of the presently challenged state imposition 
with those requirements.

This process is aided by the historic fact that the Four­
teenth Amendment represents an effort permanently to 
debar the states from imposing disadvantages upon indi­
viduals because of their race or ancestry. In contemporary 
recognition of this constitutional purpose opinions of this 
Court have more than once indicated that our civilization 
has advanced to the point where all governmentally im­
posed race distinctions are so odious that a state, bound to 
afford equal protection of the laws, must not impose them. 
See: Nixon v. Herndon, 273 U.S. 536; Edward v. California 
(concurring opinion of Mr. Justice Jackson), 314 U.S. 160; 
Skinner v. Oklahoma, 316 U.S. 535; cf: Hirabayashi v. 
United States, 320 U.S. 81; Korematsu v. United States, 
323 U.S. 214; Steele v. Louisville <& N.R. Co., 323 U.S. 192.

There is a short, hut decisive answer to appellees’ argu­
ment that the meaning of the Fourteenth Amendment is 
fixed by the racial practices that existed in various states at 
the time the Amendment was adopted. Most of the states 
which required segregation in public schools at the time 
of ratification of the Fourteenth Amendment and Fifteenth 
also restricted the right to vote and the right of jury serv­
ice to white citizens. As to these rights this Court has con­
sistently held that the Fourteenth and Fifteenth Amend­
ments effectively struck the qualifying word “ white” from



3

these state statutes. Strauder v. West Virginia, 100 U.S. 
303, 307; Neal v. Delaware, 103 U.S. 370, 389; Bush v. Ken­
tucky, 107 U.S. 111, 120; Guinn v. United States, 238 U.S. 
347, 363; See also: Exparte Yarbrough, 110 U.S. 651, 665; 
Lester v. Garnett, 258 U.S. 130, 136-137.

II.
In the organization of public education state imposed 

racism has taken different forms and has placed the in­
dividual at various disadvantages. This Court considered 
fifteen years ago the situation in which a state required its 
Negro citizens to go outside its borders for particular train­
ing, albeit training as good or better, except for geography, 
as that afforded locally to white citizens. The Court did 
not find it difficult to strike down this imposition of educa­
tional disadvantage on racial basis as a denial of equal pro­
tection. Missouri ex rel Gaines v. Canada, 305 U.S. 337. 
The same conclusion was reached when it was found dis­
advantageous to Negroes training for the legal profession 
to be separated in training from white persons in or pre­
paring for the same public calling. Sweatt v. Painter, 339 
U.S. 629. Even the circumstances of state imposed racial 
separation in a single classroom have been found disadvan­
tageous to the extent of denying equal protection. Mc- 
Laurin v. Oklahoma State Regents, 339 U.S. 637.

So here the evidence shows the real and substantial dis­
advantages which are and must continue to be suffered by 
the Negro children of Clarendon County so long as the state 
shall require that because of race they be trained separate 
and apart from the rest of the children of the community. 
On the record the proof of these disadvantages is nowhere 
challenged, much less countered. While we believe this 
Court has treated such demonstrable disadvtanges im­
posed upon Negro students as unconstitutional in any cir­
cumstances, they are made the more clearly intolerable be­
cause this injury of the segregated persons serves no edu­



4

cational purpose and results from distinctions which in 
their nature are alien and odious to a democratic and 
equalitarian society such as ours.

To offset these considerations the state urges at most 
that it means well; that certain disturbances of community 
tranquility are anticipated if racial segregation is not re­
quired in the public schools and that prevailing sentiment 
is so strongly in favor of the present arrangement that so­
cially dangerous resentments would be aroused by a change. 
This is said to he established on the record by the testimony 
of one witness that a change in the segregated pattern would 
be ‘ ‘ unwise ’ ’ at this time and, off the record, by quotations 
from several speeches and newspaper articles of distin­
guished persons. Accordingly, appellees ask this Court to 
recognize that South Carolina is not being arbitrary in its 
determination that a substantial public interest is served 
by racial segregation in its public schools. They then argue 
that the legislature may continue the system which it thus 
regards as serving a public interest, whatever incidental 
injury may be suffered by the segregated Negroes. The 
only recourse left to the appellants is patience, waiting until 
there shall he change of heart by the majority of the popu­
lation so apparent as to convince the South Carolina Legis­
lature that it should abolish the school segregation laws.1

This entire contention is tantamount to saying that the 
vindication and enjoyment of constitutional rights recog­
nized by this Court as present and personal can be post­
poned wherever such postponement seems in the general 
community interest. We need go no further than McLaurin 
v. Oklahoma State Regents, supra, to learn that this exalta­
tion of local policy over fundamental individual right is as 
declared in the national Constitution not tolerable in the 
United States.

1 In view of South Carolina’s disregard of right of Negroes to vote, 
Rice V. Elmore, 165 P. 2d 387, cert. den. 333 TJ.S. 875 and Baskin v. 
Brown, 174 F. 2d 391, even the normal political influences of opponents 
of particular legislature are not here present.



5

And there are striking and persuasive analogies in other 
situations where local policy has been urged to minimize 
or override individual constitutional right. More than a 
hundred years ago South Carolina attempted to prevent the 
free movement of Negro seamen into and about its seaport 
cities on the ground that domestic order and tranquility 
required their exclusion. Mr. Justice Johnson,2 sitting on 
Circuit in South Carolina in 1823 did not hesitate to over­
rule this defense and condemn the restriction as unconstitu­
tional. Elkinson v. Deliesseline, 8 Fed. Cas. 493 (C.C.S.C. 
1823). The question there involved a South Carolina stat­
ute requiring the imprisonment of free Negro sailors on 
ships tied up in the harbor of Charleston. Much the same 
argument as presented by appellees in this ease was pre­
sented on behalf of the statute in the Elkinson case. Mr. 
Justice Johnson disposed of this argument as follows:

“ But to all this the plea of necessity is urged; and 
of the existence of that necessity we are told the state 
alone is to judge. Where is this to land us ? Is it not 
asserting the right in each state to throw off the federal 
Constitution at its will and pleasure 1 If it can be done 
as to any particular article it may be done as to all; 
and, like the old confederation, the Union becomes a 
mere rope of sand. . . . ” (At p. 496.)

More recently contentions that maintenance of peace and 
order justified segregation of Negro interstate passengers, 
did not justify what was found otherwise to be an unwar­
ranted interference with commerce. Morgan v. Virginia, 
328 U.S. 373. The present apprehensions of South Caro­
lina have no better standing as impediments to appellants’ 
enjoyment of their constitutional right to be relieved of 
special educational disadvantages to which the state has 
subjected them because of their race.

As a matter of face, this argument by appellees is in

9 See: Mr. Justice William Johnson and the Constitution, 57 Harvard 
Law Review 328, 338.



6

direct conflict with applicable decisions of this Conrt. In 
Buchanan v. Warley, 245 U.S. 60 this Court held:

“ That there exists a serious and difficult problem 
arising from a feeling of race hostility which the law 
is powerless to control, and to which it must give a 
measure of consideration, may be freely admitted. But 
its solution cannot be promoted by depriving citizens of 
their constitutional rights and privileges.”

This rule has been cited with approval in later cases, Shelley 
v. Kraemer, 334 U.S. 1.

The case of Birmingham v. Monk, 185 F. 2d 859 (C.A. 5, 
1951), certiorari denied 341 U.S. 942, affirmed the decision 
of the district court which excluded all efforts of the City 
of Birmingham to justify a residential segregation ordi­
nance on the ground that it was necessary to prevent 
violence.

III.

The gravamen of the opinions of the District Court and 
the brief for appellees is that as a matter of policy, legisla­
tive or otherwise, the people of South Carolina desire that 
all Negroes be excluded from the white schools and vice 
versa. They also assert that the removal of racial segre­
gation in public education will not be acceptable to the 
people of South Carolina. The individual rights of the 
appellants herein cannot be made dependent upon this rea­
soning. This Court stated in the McLaurin case :

“ It may be argued that appellant will be in no better 
position when these restrictions are removed, for he 
may still be set apart by his fellow students. This we 
think irrelevant. There is a vast difference—a Con­
stitutional difference—between the restrictions im­
posed by the state which prohibit the intellectual com­
mingling of students, and the refusal of individuals to 
commingle where the state presents no such bar. 
Shelley v. Kraemer, 334 U.S. 1, 13, 14, 92 L. ed. 1161, 
1180, 1181, 68 S.Ct. 836, 3ALR 2d 441 (1948). The 
removal of the state restrictions will not necessarily



7

abate individual and group predilections, prejudices 
and choices. But at the very least, the state will not 
be depriving appellant of the opportunity to secure 
acceptance by his fellow students on his own merits.”

It bears repeating that appellants in this case are seek­
ing to remove the barrier of state imposed racial segrega­
tion in the educational opportunities and benefits offered 
by the state. If this barrier is removed, the state, counties 
and school districts can then assign students on whatever 
reasonable basis they deem advisable with the sole proviso 
that race or color shall not be made the determining factor 
in such assignment. By doing this, the racial groups in 
South Carolina can work out their common problems with­
out the individual opportunities of either group being sub­
jected to the state imposed barrier of racial segregation.

CONCLUSION

We respectfully submit that, for the reasons stated herein 
and in appellants’ initial brief, the decree of the District 
Court should be reversed.

H arold R . B oulware 
R obert L. Carter 
T hurgood M arshall 
S pottswood W . R obinson , III 

Counsel for Appellants

W illia m  T. C olem an , J r.
George E. C. H ayes 
George M. J o h nson  
W illia m  R . M in g , J r .
C onstance B aker M otley 
J ames M. N abrit, J r.
F rank  D. R eeves 
J ack B. W e in s t e in

Of Counsel