Brown v. Board of Education Vol. I Briefs

    IN THE

jyupreme (Emtrt of tin' United
October Term, 1952

No. 8
\̂ <£ G ~ I

C?L>l>2

Oliver B row n , M rs. R ichard L aw to n ,
M rs. Sadie E m m a n u e l , et al.,

Appellants,
vs.

B oard of E ducation of T opeka, S h aw n ee  
Cou n ty , Ka n sa s , et al.

A ppeal from th e  U nited S tates D istrict Court for the 
D istrict of K ansas

BRIEF FOR APPELLANTS

R obert L . Carter,
T hurgood M arshall, 
S pottswood W. R obinson, III, 
C harles S. S cott,

Counsel for Appellants.

W illiam  T. Colem an , Jr.,
Jack Greenberg,
George E . C. H ayes,
George M . J oh nson ,
W illiam  R. M ing , Jr.,
Constance B aker M otley,
J ames M . N abrit, J r.,
F ran k  D. R eeves,
J o h n  S cott,
Jack B . W ein stein ,

of Counsel.





TABLE OF CONTENTS

Opinion Below ..................................................................  1
Jurisdiction ........................................................................  1

Questions Presented ........................................................  2

The Law of Kansas and the Statute Involved.............. 2
Statement of the Case ....................................................  3
Specifications of E r r o r ..................................................... 4
Summary of Argum ent....................................................  5
Argument ............................................................................ 6

I. The State of Kansas in affording opportunities 
for elementary education to its citizens has no 
power under the Constitution of the United 
States to impose racial restrictions and distinc­
tions ........................................................................  6

II. The court below, having found that appellants 
were denied equal educational opportunities by 
virtue of the segregated school system, erred 
in denying the relief p rayed .................................  8

Conclusion............................................................................ 13

Table of Cases

Asbury Hospital v. Cass County, 326 U. S. 207 .............. 6
Bain Peanut Co. v. Pinson, 286 U. S. 499 .....................  6
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 2 8 .......... 8
Buchanan v. Warley, 245 U. S. 6 0 ...................................  7

Cassell v. Texas, 339 U. S. 282 ......................................... 8
Cartwright v. Board of Education, 73 K. 32, 84 P. 383

(1906)

PAGE

2



11

Dominion Hotel v. Arizona, 249 U. S. 265 .....................  6
Edwards v. California, 314 U. S. 160 ...........................  7
Ex parte Endo, 323 U. S. 283 ......................................... 7
Fisher v. Hurst, 333 U. S. 1 4 7 .........................................  7
Gong Lum v. Rice, 275 U. S. 7 8 ......................... 5,10,11,12
Hill v. Texas, 316 U. S. 400 ............................................. 8
Hirabayashi v. United States, 320 U. S. 8 1 .................  7
Knox v. Board of Education, 54 K. 152, 25 P. 616

(1891) .............................................................................. 2
Korematsu v. United States, 323 U. S. 2 1 4 .................... 7

Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 ..  6
McLaurin v. Board of Regents, 339 U. S. 637 . . . .  6, 7, 8,10,

11,12,13
Metropolitan Casualty Insurance Co. v. Brownell, 294

U. S. 580 ........................................................................  6
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 .......... 12
Morgan v. Virginia, 328 U. S. 373 .............................  7
Nixon v. Condon, 286 U. S. 7 3 ......................................... 7
Oyama v. California, 332 U. S. 633 .................................  7

Pierre v. Louisiana, 306 U. S. 354 ...............................  8
Plessy v. Ferguson, 163 U. S. 537 ............................. 5,10,11
Railway Mail Association v. Corsi, 326 U. S. 8 8 .......... 8
Rowles v. Board of Education, 76 K. 361, 91 P. 88

(1907) .............................................................................. 2
Shelley v. Kraemer, 334 U. S. 1 .....................................  7, 8
Shepherd v. Florida, 341 U. S. 5 0 ................................  7
Sipuel v. Board of Regents, 332 U. S. 6 3 1 .....................  8
Skinner v. Oklahoma, 316 U. S. 535 .............................  7
Smith v. Allwright, 321 U. S. 649 ...................................  8
SwTeatt v. Painter, 339 U. S. 629 ............6, 7, 8,10,11,12,13

PAGE



I ll

PAGE

Takahaski v. Fish and Game ‘Commission, 334 U. S.
410 ...................................................................................  7

Thurman-Watts v. Board of Education, 115 K. 328, 222 
P. 123 (1924) ..................................................................  2

Webb v. School District, 167 K. 395, 206 P. 2d 1066
(1949) .............................................................................. 2

Woolridge, et al. v. Board of Education, 98 K. 397,
157 P. 1184 (1916 )..........................................................  2

Yick Wo v. Hopkins, 118 U. S. 356 .................................  7





IN THE

(Emtrt of tlje United States
October Term, 1952 

No. 8

Oliver B row n , M rs. R ichard L aw to n ,
M rs. S adie E m m a n u e l , et al.,

Appellants,
vs.

B oard of E ducation of T opeka, S h a w n ee  
Co u n ty , K ansas, et al.

A ppeal from th e  U nited S tates D istrict Court for the  
D istrict of K ansas

---------------------- o-----------------------

BRIEF FOR APPELLANTS

Opinion Below

The opinion of the statutory three-judge-District Court 
for the District of Kansas (R. 238-244) is reported at 98
F. Supp. 797.

Jurisdiction

The judgment of the court below was entered on August 
3, 1951 (R. 247). On October 1, 1951, appellants filed a 
petition for appeal (R. 248), and an order allowing the 
appeal was entered (R. 250). Probable jurisdiction was 
noted on June 9, 1952 (R. 254). Jurisdiction of this Court 
rests on Title 28, United States Code, §§ 1253 and 2201(b).



2

Questions Presented

1. Whether the State of Kansas has power to enforce 
a state statute pursuant to which racially segregated public 
elementary schools are maintained.

2. Whether the finding of the court below— that racial 
segregation in public elementary schools has the detri­
mental effect of retarding the mental and educational devel­
opment of colored children and connotes governmental ac­
ceptance of the conception of racial inferiority—compels 
the conclusion that appellants here are deprived of their 
rights to share equally in educational opportunities in vio­
lation of the equal protection clause of the Fourteenth 
Amendment.

The Law of Kansas and the Statute Involved

All boards of education, superintendents of schools and 
school districts in the state are prohibited from using race 
as a factor in affording educational opportunities in the 
public schools within their respective jurisdictions unless 
expressly empowered to do so by statute. Knox v. Board 
of Education, 54 K. 152, 25 P. 616 (1891); Cartwright v. 
Board of Education, 73 K. 32, 84 P. 382 (1906); Rowles 
v. Board of Education, 76 K. 361, 91 P. 88 (1907); Wool- 
ridge, et al. v. Board of Education, 98 K. 397, 157 P. 1184 
(1916); Thurman-Watts v. Board of Education, 115 K. 
328, 222 P. 123 (1924); Webb v. School District, 167 K. 395, 
206 P. 2d 1066 (1949).

Segregated elementary schools in cities of the first class 
are maintained solely pursuant to authority of Chapter 72- 
1724 of the General Statutes of Kansas, 1949, which reads 
as follows:

“ Powers of board; separate schools for white 
and colored children; manual training. The board 
of education shall have power to elect their own



3

officers, make all necessary rules for the government 
of the schools of-suck city under its charge and con­
trol and of the board, subject to the provisions of 
this act and the laws of this state; to organize and 
maintain separate schools for the education of white 
and colored children, including the high schools in 
Kansas City, Kans.; no discrimination on account 
of color shall be made in high schools except as pro­
vided herein; to exercise the sole control over the 
public schools and school property of such city; and 
shall have the power to establish a high school or 
high schools in connection with manual training and 
instruction or otherwise, and to maintain the same 
as a part of the public-school system of said city. 
(G-. S. 1868, Ch. 18, § 75; L. 1879, Ch. 81, § 1; L. 1905, 
Ch. 414, § 1 ; Feb. 28; K. S. 1923, §72-1724.)”

Statement of the Case

Appellants are of Negro origin and are citizens of the 
United States and of the State of Kansas (R. 3-4). Infant 
appellants are children eligible to attend and are now 
attending elementary schools in Topeka, Kansas, a city 
of the first class within the meaning of Chapter 72-1724, 
General Statutes of Kansas, 1949, hereinafter referred to 
as the statute. Adult appellants are parents of minor 
appellants and are required by law to send their respective 
children to public schools designated by appellees (R. 3-4). 
Appellees are state officers empowered by state law to 
maintain and operate the public schools of Topeka, Kansas.

For elementary school purposes, the City of Topeka is 
divided into 18 geographical divisions designated as terri­
tories (R. 24). In each of these territories one elemen­
tary school services white children exclusively (R. 24). In 
addition, four schools are maintained for the use of Negro 
children exclusively (R. 11, 12). These racial distinctions



4

are enforced pursuant to the statute. In accordance with 
the terms of the statute there is un segregation of Negro 
and white children in junior and senior high schools (R. 12).

On March 22, 1951, appellants instituted the instant 
action seeking to restrain the enforcement, operation and 
execution of the statute on the ground that it deprived them 
of equal educational opportunities within the meaning of 
the Fourteenth Amendment (R. 2-7). In their answer, 
appellees admitted that they acted pursuant to the statute, 
and that infant appellants were not eligible to attend any 
of the 18 white elementary schools solely because of their 
race and color (R. 12). The Attorney General of the State 
of Kansas filed a separate answer for the specific purpose 
of defending the constitutional validity of the statute in 
question (R. 14).

Thereupon, the court below wras convened in accordance 
with Title 28, United States Code, § 2284. On June 25-26, 
a trial on the merits took place (R. 63 et seq.). On August 
3, 1951, the court below filed its opinion (R. 238-244), its 
findings of fact (R. 244-246), and conclusions of law (R. 
246-247), and entered a final judgment and decree in 
appellees’ favor denying the injunctive relief sought (R. 
247).

Specifications of Error

The District Court erred:
1. In refusing to grant appellants’ application for a 

permanent injunction to restrain appellees from acting 
pursuant to the statute under which they are maintaining 
separate public elementary schools for Negro children 
solely because of their race and color.

2. In refusing to hold that the State of Kansas is -with­
out authority to promulgate the statute because it enforces



5

a classification based upon race and color which is violative 
of the Constitution of the United States.

3. In refusing- to enter judgment in favor of appellants 
after finding that enforced attendance at racially segregated 
elementary schools was detrimental and deprived them of 
educational opportunities equal to those available to white 
children.

Summary of Argument

The Fourteenth Amendment precludes a state from 
imposing distinctions or classifications based upon race 
and color alone. The State of Kansas has no power there­
under to use race as a factor in affording educational oppor­
tunities to its citizens.

Racial segregation in public schools reduces the bene­
fits of public education to one group solely on the basis of 
race and color and is a constitutionally proscribed distinc­
tion. Even assuming that the segregated schools attended 
by appellants are not inferior to other elementary schools 
in Topeka with respect to physical facilities, instruction 
and courses of study, unconstitutional inequality inheres 
in the retardation of intellectual development and distor­
tion of personality which Negro children suffer as a result 
of enforced isolation in school from the general public 
school population. Such injury and inequality are estab­
lished as facts on this appeal by the uncontested findings 
of the District Court.

The District Court reasoned that it could not rectify 
the inequality that it had found because of this Court’s 
decisions in Plessy v. Ferguson, 163 U. S. 537 and Gong 
Lum v. Rice, 275 U. S. 78. This Court has already decided 
that the Plessy case is not in point. Reliance upon Gong 
Lum v. Rice is mistaken since the basic assumption of that 
case is the existence of equality while no such assumption



6

can be made here in the face of the established facts. 
Moreover, more recent decisions of this Court, most notably 
Sioeatt v. Painter, 339 U. S. 629 and McLaurin v. Board of 
Regents, 339 U. S. 637, clearly show that such hurtful 
consequences of segregated schools as appear here con­
stitute a denial of equal educational opportunities in viola­
tion of the Fourteenth Amendment. Therefore, the court 
below erred in denying the relief prayed by appellants.

ARGUM ENT

I

The State of Kansas in affording opportunities for 
elementary education to its citizens has no power under 
the Constitution of the United States to impose racial 
restrictions and distinctions.

While the State of Kansas has undoubted power to 
confer benefits or impose disabilities upon selected groups 
of citizens in the normal execution of governmental func­
tions, it must conform to constitutional standards in the 
exercise of this authority. These standards may be 
generally characterized as a requirement that the state’s 
action be reasonable. Reasonableness in a constitutional 
sense is determined by examining the action of the state 
to discover whether the distinctions or restrictions in issue 
are in fact based upon real differences pertinent to a lawful 
legislative objective. Bain Peanut Co. v. Pinson, 282 U. S. 
499; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; 
Asbury Hospital v. Cass County, 326 U. S. 207; Metropoli­
tan Casualty Insurance Co. v. Brownell, 294 U. S. 580; 
Dominion Hotel v. Arizona, 249 U. S. 265.

When the distinctions imposed are based upon race and 
color alone, the state’s action is patently the epitome of



7

that arbitrariness and capriciousness constitutionally un­
permissive under our system of government. Yick Wo v. 
Hopkins, 118 U. S. 356; Skinner v. Oklahoma, 316 U. S. 
535. A  racial criterion is a constitutional irrelevance, 
Edwards v. California, 314 U. S. 160, 184, and is not saved 
from condemnation even though dictated by a sincere 
desire to avoid the possibility of violence or race friction. 
Buchanan v. Warley, 245 U. S. 60; Morgan v. Virginia, 
328 U. S. 373. Only because it was a war measure designed 
to cope with a grave national emergency was the federal 
government permitted to level restrictions against persons 
of enemy descent. Hirabayashi v. United States, 320 U. S. 
81; Oyama v. California, 332 U. S. 633. This action, 
“ odious,”  Hirabayashi v. United States, supra, at page 
100, and “ suspect,”  Korematsu v. United States, 323 U. S. 
214, 216, even in times of national peril, must cease as 
soon as that peril is past. Ex Parte Endo, 323 U. S. 283.

This Court has found violation of the equal protection 
clause in raeial distinctions and restrictions imposed by 
the states in selection for jury service, Shepherd v. 
Florida, 341 U. S. 50; ownership and occupancy of real 
property, Shelley v. Kramer, 334 U. S. 1; Buchanan v. 
Warley, supra-, gainful employment, Takahashi v. Fish 
and Game Commission, 334 U. S. 410; voting, Nixon v. 
Condon, 286 U. S. 73; and graduate and professional educa­
tion. McLaurin v. Board of Regents, supra; Sweatt v. 
Painter, supra. The commerce clause in proscribing the 
imposition of racial distinctions and restrictions in the 
field of interstate travel is a further limitation of state 
power in this regard. Morgan v. Virginia, 328 U. S. 373.

Since 1940, in an unbroken line of decisions, this Court 
has clearly enunciated the doctrine that the state may not 
validly impose distinctions and restrictions among its 
citizens based upon race or color alone in each field of 
governmental activity where question has been raised.



8

Smith v. Allwright, 321 U. S. 649; Sipuel v. Board of 
Education, 332 U. S. 631; Sweatt v. Painter, supra; Pierre 
v. Louisiana, 306 U. S. 354; Hill v. Texas, 316 U. S. 400; 
Morgan v. Virginia, supra; McLaurin v. Board of Regents, 
supra; Oyama v. California, supra; Takahashi v. Fish and 
Game Commission, supra; Shelley v. Kraemer, supra; 
Shepherd v. Florida, supra; Cassell v. Texas, 339 U. S. 
282. On the other hand, when the state has sought to protect 
its citizenry against racial discrimination and prejudice, 
its action has been consistently upheld, Railway Mail 
Association v. Cor si, 326 U. S. 88, even though taken in 
the field of foreign commerce. Bob-Lo Excursion Co. v. 
Michigan, 333 U. S. 28.

It follows, therefore, that under this doctrine, the 
State of Kansas which by statutory sanctions seeks to 
subject appellants, in their pursuit of elementary educa­
tion, to distinctions based upon race or color alone, is here 
attempting to exceed the constitutional limits to its au­
thority. For that racial distinction which has been held 
arbitrary in so many other areas of governmental activity 
is no more appropriate and can be no more reasonable in 
public education.

II

The court below, having found that appellants 
were denied equal educational opportunities by virtue 
of the segregated school system, erred in denying the 
relief prayed.

The court below made the following finding of fact:
“ Segregation of white and colored children in 

public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of the law; for the policy of separating



9

the races is usually interpreted as denoting the in­
feriority of the negro group. A sense of inferiority 
affects the motivation of a child to learn. Segrega­
tion with the sanction of law, therefore, has a tendency 
to retard the educational and mental development of 
negro children and to deprive them of some of the 
benefits they would receive in a racially integrated 
school system.”

This finding is based upon uncontradicted testimony 
that conclusively demonstrates that racial segregation 
injures infant appellants in denying them the opportunity 
available to all other racial groups to learn to live, work 
and cooperate with children representative of approxi­
mately 90% of the population of the society in which they 
live (R. 216); to develop citizenship skills; and to adjust 
themselves personally and socially in a setting comprising 
a cross-section of the dominant population (R. 132). The 
testimony further developed the fact that the enforcement 
of segregation under law denies to the Negro status, power 
and privilege (R. 176); interferes with his motivation for 
learning (R. 171); and instills in him a feeling of inferiority 
(R. 169) resulting in a personal insecurity, confusion and 
frustration that condemns him to an ineffective role as 
a citizen and member of society (R. 165). Moreover, it 
was demonstrated that racial segregation is supported by 
the myth of the Negro’s inferiority (R. 177), and where, 
as here, the state enforces segregation, the communuity at 
large is supported in or converted to the belief that this 
myth has substance in fact (R. 156, 169, 177). It was 
testified that because of the peculiar educational system 
in Kansas that requires segregation only in the lower 
grades, there is an additional injury in that segregation 
occurring at an early age is greater in its impact and 
more permanent in its effects (R. 172) even though there 
is a change to integrated schools at the upper levels.



10

That these conclusions are the consensus of social 
scientists is evidenced by the appendix filed herewith. 
Indeed, the findings of the court that segregation constitutes 
discrimination are supported on the face of the statute 
itself where it states that: “  * * * no discrimination on ac­
count of color shall be made in high schools except as 
provided herein * * * ”  (emphasis supplied).

Under the Fourteenth Amendment equality of educa­
tional opportunities necessitates an evaluation of all factors 
affecting the educational process. Sweatt v. Painter, supra; 
McLaurin v. Board of Regents, supra. Applying this 
yardstick, any restrictions or distinction based upon race 
or color that places the Negro at a disadvantage in relation 
to other racial groups in his pursuit of educational oppor­
tunities is violative of the equal protection clause.

In the instant case, the court found as a fact that appel­
lants were placed at such a disadvantage and were denied 
educational opportunities equal to those available to white 
students. It necessarily follows, therefore, that the court 
should have concluded as a matter of law that appellants 
were deprived of their right to equal educational oppor­
tunities in violation of the equal protection clause of the 
Fourteenth Amendment.

Under the mistaken notion that Plessy v. Ferguson and 
Gong Lum v. Rice were controlling with respect to the 
validity of racial distinctions in elementary education, the 
trial court refused to conclude that appellants were here 
denied equal educational opportunities in violation of their 
constitutional rights. Thus, notwithstanding that it had 
found inequality in educational opportunity as a fact, the 
court concluded as a matter of law that such inequality did 
not constitute a denial of constitutional rights, saying:

“  Plessy v. Ferguson, 163 U. S. 537, and Gong 
Lum v. Rice, 275 U. S. 78, uphold the constitution-



1]

ality of a legally segregated school system in the 
lower grades and no denial of due process results 
from the maintenance of such a segregated system 
of schools absent discrimination in the maintenance 
of the segregated schools. We conclude that the 
above-cited cases have not been overruled by the later 
case of McLaurin v. Oklahoma, 339 U. S. 637, and 
Sweatt v. Painter, 339 U. S. 629.”

Plessy v. Ferguson is not applicable. Whatever doubts 
may once have existed in this respect were removed by this 
Court in Sweatt v. Painter, supra, at page 635, 636.

Gong Lum v. Rice is irrelevant to the issues in this 
case. There, a child of Chinese parentage was denied admis­
sion to a school maintained exclusively for white children 
and was ordered to attend a school for Negro children. 
The power of the state to make racial distinctions in its 
school system was not in issue. Petitioner contended that 
she had a constitutional right to go to school with white 
children, and that in being compelled to attend school with 
Negroes, the state had deprived her of the equal protection 
of the laws.

Further, there was no showing that her educational 
opportunities had been diminished as a result of the state’s 
compulsion, and it was assumed by the Court that equality 
in fact existed. There the petitioner was not inveighing 
against the system, hut that its application resulted in 
her classification as a Negro rather than as a white 
person, and indeed by so much conceded the propriety of 
the system itself. Were this not true, this Court would 
not have found basis for holding that the issue raised was 
one “ which has been many times decided to be within the 
constitutional power of the state”  and, therefore, did not 
“ call for very full argument and consideration.”



12

In short, she raised no issue with respect to the state’s 
power to enforce racial classifications, as do appellants 
here. Rather, her objection went only to her treatment 
under the classification. This case, therefore, cannot be 
pointed to as a controlling precedent covering the instant 
case in which the constitutionality of the system itself is 
the basis for attack and in which it is shown the inequality 
in fact exists.

In any event the assumptions in the Gong Lum case have 
since been rejected by this Court. In the Gong Lum case, 
without “ full argument and consideration,”  the Court 
assumed the state had power to make racial distinctions 
in its public schools without violating the equal protection 
clause of the Fourteenth Amendment and assumed the 
state and lower federal court cases cited in support of this 
assumed state power had been correctly decided. Lan­
guage in Plessg v. Ferguson was cited in support of these 
assumptions. These assumptions upon full argument and 
consideration were rejected in the McLaurin and Sweatt 
cases in relation to racial distinctions in state graduate 
and professional education. And, according to those cases, 
Plessg v. Ferguson, is not controlling for the purpose of 
determining the state’s power to enforce racial segregation 
in public schools.

Thus, the very basis of the decision in the Gong Lum 
case has been destroyed. We submit, therefore, that this 
Court has considered the basic issue involved here only in 
those cases dealing with racial distinctions in education at 
the graduate and professional levels. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Edu­
cation, supra; Fisher v. Hurst, 333 U. S. 147; Sweatt v. 
Painter, supra; McLaurin v. Board of Regents, supra.

In the McLaurin and Sweatt cases, this Court measured 
the effect of racial restrictions upon the educational devel­
opment of the individual affected, and took into account the



13

community’s actual evaluation of the schools involved. In 
the instant case, the court below found as a fact that racial 
segregation in elementary education denoted the inferiority 
of Negro children and retarded their educational and men­
tal development. Thus the same factors which led to the 
result reached in the McLaurin and Sweatt cases are pres­
ent. Their underlying principles, based upon sound analy­
ses, control the instant case.

Conclusion

In light of the foregoing, we respectfully submit that 
appellants have been denied their rights to equal educa­
tional opportunities within the meaning of the Fourteenth 
Amendment and that the judgment of the court below 
should be reversed.

R obert L. Carter,
T hurgood M arshall, 
Spottswood W. R obinson, III, 
C harles S. S cott,

Counsel for Appellants.
W illiam  T . Colem an , J r.,
Jack Greenberg,
George E. C. H ayes,
George M. J oh nson ,
W illiam  R. M ing , J r.,
Constance B aker M otley,
James M . N abrit, J r.,
F rank  D. R eeves,
J ohn S cott,
Jack B . W ein stein ,

of Counsel.



'



jf







Supreme Printing Co., I nc., 41 Murray Street, N. Y. 7, B A  7-0349
49



IN  TH E

Supreme (tart of %  llnxti'b States
October Term, 1954 

No. 1
OLIVER BROWN, et al., Appellants, 

vs.
BOARD OF EDUCATION OF TOPEKA, et al., Appellees.

No. 2
HARRY BRIGGS, JR., et al., Appellants, 

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

No. 3
DOROTHY E. DAVIS, et al., Appellants,

vs.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 

VIRGINIA, et al., Appellees.

No. 5
FRANCIS B. GEBHART, et al., Petitioners,

vs.
ETHEL LOUISE BELTON, et al., Respondents.

A ppeals From the U nited States D istrict Courts for the D istrict of 
K ansas, the E astern D istrict of South Carolina and the Eastern 
D istrict of V irginia, and on P etition for a  W rit of Certiorari to the 

Supreme Court of Delaware, Respectively

REPLY BRIEF FOR APPELLANTS IN NOS. 1, 2 
AND 3 AND FOR RESPONDENTS IN NO. 5 ON 

FURTHER REARGUMENT

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR,
LOUIS H. POLLAK,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.



■
-



TABLE OF CONTENTS

A rg u m en t  :

Briefs Filed by Appellees and State Attorneys 
General Do Not Offer Any Affirmative Plan for 
Desegregation but Are Merely Restatements of 
Arguments in Favor of Interminable Continua­
tion of Racial Segregation...................................  2

Opinion Polls Are Immaterial to the Issues Herein 
and Do Not Afford Any Basis to Support An 
Argument that a Gradual Adjustment Would 
Be More Effective ................................................. 7

The Wide Applicability of the Decision in These 
Cases Should Not Affect the Relief to Which 
Appellants Are E ntitled.......................................  10

Average Differences in Student Groups Have No 
Relevance to the Individual Rights of Pupils: 
Individual Differences Can Be Handled Admin­
istratively Without Reference to R a c e ...............  12

Official Reactions in States Affected by the May 
17th Decision Make it Plain that Delay Will De­
tract From Rather Than Contribute to the 
“ Effectiveness”  of the Transition to Desegre­
gated Schools ........................................................  15

Co n c l u s io n ......................................................................................  17

Table of Cases

Buchanan v. Warley, 245 U. S. 60, 80 ...................... 7
Irvin v. State, 66 So. 2d 288, 290-292, cert, denied

346 U. S. 927, reh. denied 347 U. S. 9 1 4 .............. 8

McLaurin v. Oklahoma State Regents, 339 U. S. 637 11

PAGE



11

Sipuel v. Board of Regents, 332 U. S. 631 .................. 11
Smith v. Allwright, 321 U. S. 649 .............................  11
Steiner v. Simmons, 111 A. 2d 574 (Del. 1955), rev’g 

108 A. 2d 173 (Del. 1954) ......................................... 17
Sweatt v. Painter, 339 U. S. 629 ...............................9,10,11

Other Authorities

Allport, The Nature of Prejudice (1954) .............. 13
Buchanan, Krugman and Van Wagenen, An Inter­

national Police Force and Public Opinion 13 
(1954) .......................................................................... 8

Comas, Racial Myths, UNESCO (1951) .................. 13
Doob, Public Opinion and Propaganda 151 (1948) .. 8
Hartley and Hartley, Fundamentals of Social Psy­

chology 657 (1952) ..................................................... 8
Hyman, Do They Tell The Truth?, 8 Public Opinion 

Quarterly 557-559 (1944) .........................................  8
Jenkins and Corbin, Dependability of Psychological 

Brand Barometers II, The Problem of Validity, 22 
Journal of Applied Psychology 252-260 (1938) ..  8

Johnson, “ Public Higher Education in the South” ,
23 Journal of Negro Education 317 (1954) .......... 9

Kirkpatrick, Philosophy of Education 399-433 (1951) 13

Klineberg, Race and Psychology, UNESCO (1951) 13
Klineberg, Race Differences: The Present Position of 

the Problem, 2 International Social Science Bul­
letin 460 (1950) ..........................................................  13

PAGE



Ill

La Piere, Attitudes vs. Actions, 13 Social Forces 230- 
237 (1934) ..................................................................  8

Link and Freiberg, The Problem of Validity vs. Re­
liability in Public Opinion Polls, 6 Public Opin­
ion Quarterly 87-98 (1942) ........................................  8

Montague, Man’s Most Dangerous Myth: The Fal­
lacy of Race 286 (1952) .............................................  13

Montague, Statement on Race, The UNESCO State­
ment by Experts on Race Problems 14-15 (1951) 13

New York Post, March 16, 1955, p. 58, c. 4 .............. 16
New York Times, April 6, 1955, p. 20, c. 5 .................. 16
Social Science Research Council, Committee on Anal­

ysis of Pre-election Polls and Forecasts 302-303 
(1949) .......................................................................... 8

Southern School News, Sept. 3, 1954, p. 9, c. 2-5 . . . .  15
Southern School News, Sept. 3, 1954, p. 7, c. 3; p. 12,

c. 1-2; p. 8, c. 3 ..........................................................  16

Southern School News, Oct. 1, 1954, p. 13, c. 5 .......... 9
Southern School News, Oct. 1, 1954, p. 10, c. 1-5;

р. 14, c. 1, 5 ................................................................  15
Southern School News, Oct. 1, 1954, p. 9, c. 4-5; p. 11

с. 1 ................................................................................ 16
Southern School News, Nov. 4, 1954, p. 12, c. 1-5 . . . .  15
Southern School News, Nov. 4, 1954, p. 11, c. 4-5; 

p. 16, c. 1 .......................................................................  16

Southern School News, Dec. 1, 1954, p. 10, c. 1-5;
р. 9, c. 1, 3 ...................................................................... 15

Southern School News, Dec. 1, 1954, p. 9, c. 1-3; p. 12,
с. 4 ................................................................................ 16

PAGE



IV

Southern School News, Jan. 6, 1955, p. 11, c. 1; 
p. 2, c. 4-5 ....................................................................

Southern School News, Jan. 6, 1955, p. 10, c. 1-2; 
p. 6, c. 2 ......................................................................

Southern School News, Feb. 3, 1955, p. 15, c. 1-5 . . . .
Southern School News, Feb. 3, 1955, p. 3, c. 2-4; 

p. 10, c. 4; p. 10, c. 1 -2 .............................................
Southern School News, March 3, 1955, p. 16, c. 1; 

p. 14, c. 1 -3 ..................................................................



IN  THE

S u p re m e  (Urntrt n f  tljp 1  m t?b  S ta te s
October Term, 1954

---------------------- o-----------------------
No. 1

O liver  B r o w n , et al., Appellants,
vs.

B oard of E du cation  of T o pek a , et al., Appellees.

No. 2

H arry  B riggs, Jr., et al., Appellants,
vs.

R . W . E l l io t t , et al., Appellees.

No. 3

D o ro th y  E . D avis , et al., Appellants,
vs.

C o u n t y  S chool  B oard of P rin c e  E dw ard  C o u n t y , 
V ir g in ia , et al., Appellees.

No. 5

F ran cis  B . G e b h a r t , et al., Petitioners,
vs.

E t h e l  L ouise B e l t o n , et al., Respondents.

A ppeals  F rom  t h e  U n ited  S tates  D istrict  C ourts 
for t h e  D istrict  of K an sas , t h e  E astern  D istric t  of 
S o u th  C aro lin a  an d  t h e  E astern  D istric t  of V ir g in ia , 
and  on  P e t it io n  for  a AVrit  of C ertiorari to t h e  

S u pr e m e  C ourt  of D e law are , R espe c tiv e ly .

------- ---------------o----------------------

REPLY BRIEF FOR APPELLANTS IN NOS. 1, 2 
AND 3 AND FOR RESPONDENTS IN NO. 5 ON 

FURTHER REARGUMENT



2

The briefs filed on this reargument by appellees and 
amici curiae (with the exception of those in Nos. 1 and 5, 
and the brief filed on behalf of the Attorney General of 
The United States) are similar in substance despite some 
differences in details. Our reply to them can, therefore, 
be made in one joint brief.

ARGUM ENT

Briefs Filed by Appellees and State Attorneys General 
Do Not Offer Any Affirmative Plan for Desegregation 
but Are Merely Restatements of Arguments in Favor 
of Interminable Continuation of Racial Segregation.

In our Brief on Further Reargument, we stated: 1
Much of the opposition to forthwith desegrega­

tion does not truly rest on any theory that it is 
better to accomplish it gradually. In considerable 
part, if indeed not in the main, such opposition stems 
from a desire that desegregation not be undertaken 
at all.

Similarly, the briefs filed at this time, both by appellees 
and state attorneys general seems to be directed against 
ending racial segregation in our time, rather than toward 
desegregation within a reasonable time. First, these briefs 
do not in fact offer any affirmative plan or elements of 
such a plan for accomplishing the task of desegregation. 
Secondly, and equally significant, the main reasons now 
proffered in support of indefinite delay are identical with 
arguments previously advanced for denying relief on the 
merits.

This Court has decided that racial segregation is un­
constitutional—that it is a practice, moreover, which has

1 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in 
No. 5 on Further Reargument, 1954 Term, p. 31.



3

such effects on its victims that it can only be described as 
abhorrent. Yet, in answering questions 4 and 5, propounded 
by the Court, the States do not even get around to what 
must, in the light of that decision, be the main problem 
underlying those questions: How can this practice be most 
expeditiously done away with? Reasons for delay, which 
would seem to occupy at beet a subsidiary position, are 
the sole preoccupation of state counsel, and the affirmative 
problem gets virtually no attention.2

The brief of the Attorney General of Florida does con­
tain a Point entitled “ Specific Suggestions to the Court in 
Formulating a Decree.”  3 But, the effect of the suggested 
plan 4 would be to subject the constitutional rights of Negro 
children to denial on the basis of such a variety of intang­
ible factors that the plan itself cannot be seriously regarded 
as one for implementing the May 17th decision.

Each individual Negro child must, under the Florida 
plan, petition a court of the first instance for admission 
to an unsegregated school, after exhausting his adminis­
trative remedies. It is up to him to establish to that 
court’s satisfaction that there exists no “ reasonable 
grounds”  for delay in his admission. “ Reasonable 
grounds”  include lack of a reasonable time to amend the 
state school laws, good faith efforts of the school board 
in promoting citizens’ educational committees, adminis­
trative problems, and “ evidence of . . .  a strong degree 
of sincere opposition and sustained hostility”  [emphasis 
supplied] giving the school board ground to believe that

2 It is true that Delaware and Kansas catalogue the progress they 
have made thus far in accomplishing integration. But both states 
plead for delay without offering any valid reasons therefor.

3 Brief of the Attorney General of the State of Florida as amicus 
curiae, pp. 57-65. Hereinafter, citations to briefs of appellees and 
amici curiae will be abbreviated. See, e.g., fn. 5, infra.

4 Set out commencing at p. 61 of the Florida Brief.



4

admission of the applicant would “  . . . create emotional 
responses among the children which would seriously inter­
fere with their education.”  In other words, the applicant’s 
right is to be postponed until everything seems entirely 
propitious for granting it. It is submitted that this is not 
a plan for granting rights, but a plan for denying them 
just as long as can possibly be done without a direct over­
ruling of the May 17th decision.

Lest there be any doubt about this, the final criterion 
for admission to unsegregated schooling should be quoted: 5

(6) Evidence that the petitioner’s application 
was made in good faith and not for capricious 
reasons. Such evidence should demonstrate:

(a) That the petitioner personally feels that he 
would be handicapped in his education, either 
because of lack of school plant facilities or 
psychological or sociological reasons if his 
application for admission is denied.

(b) That the petitioner is not motivated in his 
application solely by a desire for the advance­
ment of a racial group on economic, social or 
political grounds, as distinguished from his 
personal legal right to equality in public 
school education as guaranteed by the 14th 
Amendment. This distinction should be care­
fully drawn [emphasis supplied].

Where the devisers of a plan are disposed to characterize 
opposition to desegregation as “ sincere”  and reasons for 
desiring admission as ‘ ‘ capricious ’ ’, we cannot be surprised 
at a rather peculiar procedural consequence of the dispensa­
tion they set up. The “ petitioner” , if he is to make timely 
application, exhaust his administrative remedies, and allow 6

6 Florida Brief, p. 63.



5

time for appeal, will have to draw this fine distinction at 
about four years of age, if he is to start the first grade in 
a desegregated school. Out of the mouths of babes and 
sucklings will have to come a wisdom in self-analysis which 
surely has never in the history of this country been required 
of any applicant for relief from the denial of a personal 
constitutional right. The Florida Brief is no real excep­
tion to the statement that none of the States has offered 
any plan for actually implementing the decision of this 
Court.

The quality and thrust of the reasons now advanced 
for delay may best be evaluated by noting that (except 
for those that deal with purely administrative matters 
obviously requiring little time for solution) they are argu­
ments which were advanced at an earlier stage in this 
litigation as grounds for denying relief on the merits, 
and now, under slightly altered guise, they walk again 
after their suposed laying to rest on May 17. Thus, the 
impossibility of procuring community acceptance of de­
segregation, urged earlier as a ground for decision on the 
merits,6 now turns up as an argument for indefinite post­
ponement 7 with no convincing reasons givgn for supposing 
that community attitudes will change within the segregated 
pattern.

The prediction that white parents will withdraw their 
children from public schools is repeated,8 with the implied 
hope, no doubt, that at some remote date they will have 
attained a state of mind that will result in their leaving 
their children in school. “ Racial tensions”  are again

8 South Carolina Brief (1952) p. 27. Cf. Id. at p. 35; Virginia 
Brief (1952) pp. 24-25.

7 Virginia Brief (1954) p. 13; Delaware Brief (1954) pp. 16, 25; 
Florida Brief (1954) p. 201 f f . ; Texas Brief (1954) pp. 16-17; 
North Carolina Brief (1954) pp. 7-8.

8 Com pare Florida Brief (1954) pp. 26-27 and North Carolina 
Brief (1954) pp. 36-37 with  Virginia Brief (1952) p. 30.



6

predicted.® Negro teachers may lose their jobs.9 10 Vio­
lence is warned of.11 The people and the legislature will 
abolish the school system or decline to appropriate money 
for its support.12

All these are serious matters, but we have elsewhere 
shown solid reason for believing that those dire predic­
tions, one and all, are unreliable. There is no reason for 
supposing that delay can minimize whatever unpleasant 
consequences might follow from the eradication of this 
great evil. Here, however, the point is that, where these 
arguments are resuscitated as grounds for delay, the in­
ference is that their sponsors favor delay as long as pres­
ent conditions prevail—that, in other words, they now 
want to delay desegregation just as long as the conditions 
exist which they formerly regarded as sufficient grounds 
for imposing segregation as a matter of legal right. The 
distinction is too fine to make such practical difference, 
either to the Negro child who is growing up or to this 
Court.

That it is opposition to the principle of the May 17th 
decision that animates these briefs is made clear by noting 
that the equality of schools, Plessy style, is now being 
urged as a ground for delay.13 Nothing could make it

9 Com pare Florida Brief (1954) p. 95 w ith  Virginia Brief (1952) 
p. 27.

10 Com pare Florida Brief (1954) pp. 31-32; North Carolina 
Brief (1954) pp. 24-25; and Texas Brief (1954) pp. 10-11, with  
Virginia Brief (1952) p. 31.

11 Com pare North Carolina Brief (1954) p. 37 and Florida Brief 
(1954) p. 25 w ith  South Carolina Brief (1952) p. 27.

12 Com pare North Carolina Brief (1954) p. 36; Virginia Brief 
(1954) p. 15; and Arkansas Brief (1954) pp. 7-8 w ith  South Caro­
lina Brief (1952) p. 27.

13 Com pare North Carolina Brief (1954) pp. 25-35, 43; Texas 
Brief (1954) pp. 2-4; and Maryland Brief (1954) p. 10 w ith  Vir­
ginia Brief (1952) pp. 18-19 and South Carolina Brief (1952) pp. 
8-9.



7

clearer, moreover, that many responsible officials, taking a 
realistic view, will not regard the “ separate but equal’ ’ 
doctrine as abolished until this Court orders its abandon­
ment in practice. Most significant here is the amicus curiae 
brief of the Attorney General of Texas which, after mak­
ing a straight-out Plessy argument, continues with the 
statement: “ However, if the occasion arises whereby we 
are compelled to abolish segregation in Texas, it should be 
a gradual adjustment in view of the complexities of the 
problem’ ’ (p. 4).

Opinion Polls Are Immaterial to the Issues Herein 
and Do Not Afford Any Basis to Support An Argu­

ment that a Gradual Adjustment Would Be 
More Effective.

Several of the briefs filed herein refer to polls of pub­
lic opinion in their respective States in support of argu­
ments to postpone desegregation indefinitely.14 These 
polls appear to have been made for the purpose of sampling 
opinions of various groups within the State as to whether 
they approved of the May 17th decision and whether they 
thought it could be enforced immediately without friction.

The information as to racial hostility obtained from 
these polls is indecisive of the issues before this Court. 
In Buchanan v. Warley, 245 U. S. 60, 80, this Court stated:

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 privi­
leges.

14 Texas Brief, pp. 16-17; Virginia Brief pp. 13-14; North Caro­
lina Brief pp. 7-9; Florida Brief pp. 23-24, 105 ff; Delaware Brief
p. 12.



8

We believe the same answer should be given to any sugges­
tion that the enforcement of constitutional rights be de­
ferred to a time when it will have uniform public accept­
ance.

Even if relevant, results of polls are often not conclu­
sive. For example, the Florida survey polled eleven 
“ leadership”  groups. These groups give evidence of a 
very high degree of “ willingness”  to comply. Although 
peace officers are greatly opposed to desegregation (Table 
3, p. 138), only two of the eleven groups would not posi­
tively comply, and in tho-se cases there is a very even divi­
sion (Table 4, p. 139). Overall, six of the eleven groups 
are not opposed to the decision (Table 3, p. 138); 84.5% 
of white principals and supervisors who, would be charged 
with the duty of implementation, would comply (Table 4, 
p. 139). A majority of all groups expect neither mob vio­
lence nor “ serious violence”  (Table 5, p. 140).

Moreover, such polls are not a valid index of how the 
individuals questioned will in fact act in the event of 
desegregation. Modern psychological research shows that, 
especially in the case of broad public issues, many persons 
simply “ do not follow through even on actions which they 
say they personally will take in support of an opinion.”  15 * 13 * * * *

15 Bu ch a n a n , K rugman  and V an  W agenen , A n I nterna­
tional P olice F orce and  P ublic O pinion  13 (1954). For other 
studies dealing with the discrepancy between verbal statements 
and actions, see L in k  and  F reiberg, “ T he P roblem of V alidity 
vs. R eliability in  P ublic O pinion  P olls” , 6 P ublic O pinion  
Q uarterly 87-98, esp. 91-92 (1942); Jen k in s  and Corbin, 
“ D ependability of P sychological B rand B arometers II, T he 
P roblem of V alidity” , 22 Journal of A pplied P sychology 252- 
260 (1938); H y m a n , “ D o T hey T ell the  T r u t h ?” , 8 P ublic 
O pinion  Q uarterly 557-559 (1944) ; Social Science R esearch 
Council, Committee on A nalysis of P re-E lection P olls and 
F orecasts 302-303 (1949); L a P iere, “ A ttitudes vs. A ctions” ,
13 Social F orces 230-237 (1934); D oob, P ublic O pinion  and
P ropaganda 151 (1948) ; H artley and H artley, F undamentals
of Social P sychology 657 (1952). See also Irvin  v. State, 66 So.
2d 288, 290-292, cert, denied  346 U. S. 927, reh. denied 347 U. S.
914.



9

The Attorney General of Texas sets out in his brief 
in these cases a survey by the “ Texas Poll”  showing 71% 
disapproval of the May 17th decision and 65% approval 
of continued segregation notwithstanding this Court’s deci­
sion. It is interesting to note that in Sweatt v. Painter, 
339 U. S. 629, respondents included in their brief a sur­
vey made by the same “ Texas Poll”  showing that 76% 
of all Texans were “ against Negroes and whites going to 
the same universities.”  However, this Court ordered 
Sweatt admitted to the University of Texas. He and other 
Negroes attended the University.16 Since then Negroes 
have been admitted to and are attending this and other 
public universities in twelve southern States.* 168

Finally, there is nothing to indicate that an extended 
delay in ordering the elimination of all segregation will 
improve public attitudes or eliminate the objections pres­
ently interposed. Clearly the polls are irrelevant and 
should be so treated by this Court.

16 It is also significant that many municipal junior colleges in 
Texas have also desegregated their student bodies. See Southern 
School N ews, October 1, 1954, p. 13, c. 5.

168 Johnson , “ P ublic H igher Education I n T he South” , 
23 Journal O f N egro Education 317 (1954), especially at 328 
where Dr. Johnson, University of North Carolina Sociologist, con- 
concludes:

The transition from complete segregation to some degree of 
integration of Negroes into the publicly-supported institutions of 
higher learning in the South has already been accomplished in all 
except five of the Southern states, and most of this change has 
occurred in the brief period, 1948-1953. Despite numerous predic­
tions of violence, this transition has been accomplished without a 
single serious incident of interracial friction.



10

The Wide Applicability of the Decision in These Cases 
Should Not Affect the Relief to Which Appellants 

Are Entitled.

Effort is made throughout the briefs for appellees and 
the several attorneys general to balance the personal and 
present rights here involved against the large number of 
children of both races now attending public school on a 
segregated basis. This argument is made for a twofold 
purpose: to escape the uniformity of decisions of this Court 
on the personal character of the rights involved and, 
secondly, to destroy the present character of the right 
involved.

Of course, the decision of this Court in the instant cases 
will have wide effect involving public school systems of 
many states and many public school children. The mere 
fact of numbers involved is not sufficient to delay enforce­
ment of rights of the type here involved.17

On the face of it, their position is both ill-taken and 
self-defeating. That it is ill-taken becomes clear when 
the suggestion itself is clearly stated; obviously, there is 
nothing in mere numerousness as such which has any 
tendency whatever to create or destroy rights to efficacious 
legal relief. Behind every numeral is a Negro child, suffer­
ing the effects spoken of by the Court on May 17. It is a 
manifest inconsequence to say that the rights or remedial 
needs of each child are diminished merely because others

17 We put to one side as obviously immaterial the mere technical 
character of these suits as class actions under Rule 23(a) (3 ). Obvi­
ously, the mere joinder of plaintiffs in a spurious class suit for rea­
sons of convenience cannot have any effect on the nature of the rights 
asserted or on the availability of normal relief remedy. Whether a 
suit is or is not a class action tells us little, in this field of law, as 
to the magnitude of the interests involved; Sw eatt v. Painter was 
an individual mandamus suit, but the effect of that decision spread 
throughout the segregating states.



11

are in the same position. That this argument is self- 
defeating emerges when it is considered that its tendency 
is simply to establish that we have to do with an evil 
affecting a great many people; presumably, the abolition 
of a widespread evil is even more urgent than dealing with 
isolated cases of wrongdoing.

This Court has consistently treated the personal rights 
of litigants on a personal basis. Every leading case involv­
ing discrimination against Negroes has necessarily and 
demonstrably involved large numbers of people; yet this 
Court has given present relief on a personal basis to those 
who showed themselves entitled to it, without any hint of 
the possibility that the rights of citizenship are diminished 
because many people are being denied them. The Sweatt, 
Sipuel and McLaurin cases and Smith v. Allwright, all, as 
was well known to this Court and to the country, involved 
not merely the individuals or class-plaintiffs or geographi­
cal subdivision actually before the Court, but also the whole 
framework of law school, graduate school or primary elec­
tion segregation. All major constitutional cases involve 
large numbers of people. Yet there is not a hint, in words 
or in action, in any past case, to the effect that the wide 
applicability of a decision was considered material to the 
right to relief. It is unthinkable that this Court would 
apply any such doctrine to limit the enjoyment of con­
stitutional rights in general; there is no reason for its 
making a special and anomalous exception of the case at 
bar.

Actually, to point to the vast numbers of people whose 
lives will be affected by the relief granted here is only a 
diffuse way of raising all the questions as to the conse­
quences of immediate desegregation. We have dealt with 
these questions elsewhere. The suggestion that mere 
numerousness makes a difference adds nothing new, but 
merely serves to confuse the issues by diverting attention 
from the extremely personal plight of each child, and from 
his need for present relief.



12

Average Differences in Student Groups Have No 
Relevance to the Individual Rights of Pupils: 
Individual Differences Can Be Handled Adminis­

tratively Without Reference to Race.

Having attempted to subordinate appellants’ personal 
and present constitutional rights to an alleged overriding 
consideration of the large numbers of people involved, 
these briefs for appellees then seek to further limit the 
individual rights of Negro students by broad characteriza­
tions of group intelligence, group morality and health.18 
Specifically, it is pointed out that statistics show that on 
the average Negro children in segregated schools score 
lower on achievement tests and are in general more 
retarded culturally than white children. This data, con­
trary to the conclusions advanced thereupon, merely under­
scores and further documents the finding quoted in this 
Court’s opinion:

“ Segregation of white and colored children in 
public schools has a detrimental effect upon the 
colored children. The impact is greater when it 
has the sanction of the law; for the policy of separat­
ing the races is usually interpreted as denoting the 
inferiority of the Negro group. A sense of in­
feriority affects the motivation of a child to learn. 
Segregation with the sanction of law, therefore, has 
a tendency to [retard] the educational and mental 
development of Negro children and to deprive them 
of some of the benefits they would receive in a 
racial[ly] integrated school system.”

We have come too far not to realize that educability 
and absorption and adoption of cultural values has nothing 
to do with race. What is achieved educationally and cul­
turally, we now know to be largely the result of opportunity

18 North Carolina Brief, pp. 39-41; Florida Brief, pp. 19-21, 189.



13

and environment.19 That the Negro is so disadvantaged 
educationally and culturally in the states where segrega­
tion is required is the strongest argument against its con­
tinuation for any period of time. Yet those who use this 
argument as a basis for interminable delay in the elimina­
tion of segregation in reality are seeking to utilize the 
product of their own wrongdoing as a justification for 
continued malfeasance.

Our public school systems have grown and improved as 
an American institution. And in every community it is 
obvious that children of all levels of culture, educability, 
and achievement must be accounted for within the same 
system. In some school systems the exceptional children 
are separated from the rest of the children. In others 
there are special classes for retarded children, for slow 
readers and for the physically handicapped. But these 
factors have no relation to race. These are administrative 
problems with respect to conduct of the public school.

In the past, large city school systems, North and South, 
have had the problem of absorbing children from rural 
areas where the public schools and cultural backgrounds 
were below the city standards. On many occasions these 
migrations have been very sudden and in proportionately 
very large numbers. This problem has always been 
solved as an administrative detail. It has never been either 
insurmountable or has it been used as an excuse to force 
the rural children to attend sub-standard schools. Simi­

19 K lineberg, R ace D ifferences: T he Present P osition of 
the Problem, 2 I nternational Social Science B ulletin  460 
(1950); M ontague, Statement on R ace, T he U nesco State­
ment by Experts on R ace P roblems 14-15 (1951); M ontague, 
Man ’s M ost D angerous M y t h : T he Fallacy of R ace 286 
(1952); K irkpatrick , P hilosophy of Education 399-433 (1951). 
See K lineberg, R ace and P sychology, U nesco (1951); A ll­
port, T he N ature of P rejudice (1954) ; Comas, R acial M yth s , 
Unesco (1951).



14

larly, large cities have met without difficulty the influx of 
immigrants from foreign countries.

Cultural and health standards have always been main­
tained in public schools and there could be no objection to 
the continuation of such standards without regard to race. 
All social scientists seem to be in agreement that race and 
color have no connection whatsoever with a student’s ability 
to be educated. Achievement and cultural deficiencies are 
nonracial in character, also. Hence these factors in no wise 
relate to questions posed as to whether desegregation 
should take place immediately or over an extended period.

Perhaps the main reasons for rejecting appellees’ argu­
ment are that the conditions they complain of can never be 
remedied as long as segregation in public schools is con­
tinued and these so-called problems, i.e., average on achieve­
ment tests, health, etc., are administrative problems which 
can be solved by recognized administrative regulations 
made to fit the problems without regard to pigmentation 
of the skin. It is significant that appellees and the Attor- 
neys-General who advance these arguments do not give any 
hope to anyone that the continuation of segregated public 
education will ever remove these problems which are the 
product of this segregation.

On the other hand, appellants have shown in their Brief 
on Further Reargument that on the basis of substantial 
documented experience: “ There is no basis for the assump­
tion that gradual as opposed to immediate desegregation 
is the better, smoother or more ‘ effective’ mode of transi­
tion. On the contrary, there is an impressive body of 
evidence which supports the position that gradualism, far 
from facilitating the process, may actually make it more 
difficult; that, in fact, the problems of transition will be a 
good deal less complicated than might be forecast by appel­
lees. Our submission is that this, like many Avrongs, can 
be easiest and best undone, not by ‘ tapering o ff ’ but by 
forthright action”  (p. 31).



15

Official Reactions in States Affected by the May 17th 
Decision Make it Plain that Delay W ill Detract From 
Rather Than Contribute to the “ Effectiveness” of the 

Transition to Desegregated Schools.

Events occurring in the states affected by the decision 
of May 17,1954, do not support the suggestions of appellees 
and amici curiae that further (and limitless) postponement 
of relief to Negro children will assure an “ effective”  
adjustment from segregated to non-segregated school 
systems. In terms of legislative, executive or adminis­
trative reaction, the southern and border states may now 
be grouped in three loose categories:

(1) Those which have not waited for further directions 
from the Court, but have undertaken desegregation in 
varied measure during the current school year. Typical of 
the states falling in this category are Delaware,20 Kansas,21 
Missouri,22 and West Virginia.23 Although not a state, the 
District of Columbia would fall within this group.

(2) Those which have decided to await a decision on 
the question of relief but have indicated an intention to

20 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents 
in No. 5 on Further Reargument, pp. 4-7; Brief for Petitioners on 
the Mandate in No. 5, pp. 10-12.

21 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in 
No. 5 on Further Reargument, pp. 3-4; Supplemental Brief for the 
State of Kansas on Questions 4 and 5 Propounded by the Court, 
pp. 13-22; Supplemental Brief for the Board of Education, Topeka’, 
Kansas on Questions 4 and 5 Propounded by the Court, pp. 2-4.

22 Southern School N ews, September 3, 1954, p. 9, c. 2-5; Id ., 
October 1, 1954, p. 10, c. 1-5; Id ., November 4, 1954, p. 12, c. 1-5; 
Id., December 1, 1954. p. 10, c. 1-5; Id .. January 6, 1955, p. 11, 
c. 1; Id ., February 3, 1955, p. 15, c. 1-5.

23 Southern School N ews, October 1, p. 14, c. 1, 5; Id ., Janu­
ary 6, 1955, p. 2, c. 4-5.



16

obey the Court’s directions. Kentucky,24 Oklohoma,25 and 
Tennessee 26 are among the states in this category.

(3) Those which have indicated an intention to circum­
vent the decision of this Court or interminably delay the 
enjoyment by Negro children of their constitutionally 
protected rights not to be segregated in public schools. 
Included in this category are states like South Carolina 27 
and Mississippi,28 which have enacted legislation designed ' 
to nullify any decision of this Court in these cases, and 
states like Virginia29 and Florida,30 where either the 
governors or special legislative committees studying the 
problem have recommended that “ every legal means”  be 
used to preserve segregated school systems.31

Against this background of state reaction to the deci­
sion of May 17, 1954, it is clear that postponement of relief 
will serve no purpose. The states in the first category have

24 Southern School N ews, September 3, 1954, p. 7, c. 3; Id., 
November 4, 1954, p. 16, c. 1; Id ., December 1, 1954, p. 9, c. 1, 3.

25 Southern School N ews, February 3, 1955, p. 10, c. 1 -2 ;, 
Id ., March 3, 1955, p. 16, c. 1; T he N ew Y ork T im es , April 6, 
1955, p. 20, c. 5.

26 Southern S chool N ew s, October 1, 1954, p. 11, c. 1; Id., 
December 1, 1954, p. 12, c. 4 ; N ew Y ork Post, March 16, 1955, 
p. 58, c. 4.

27 Southern S chool N ews, September 3, 1954, p. 12, c. 1-2; 
Id ., February 3, 1955, p. 3, c. 2-4; Id ., March 3, 1955, p. 14, c. 1-3.

28 Southern S chool N ews, September 3, 1954, p. 8, c. 3 ; Id., 
October 1, 1954, p. 9, c. 4-5; Id ., November 4, 1954, p. 11, c. 4-5; 
Id ., January 6, 1955, p. 10, c. 1-2; T he N ew Y ork T im es , April 6, 
1955, p. 20, c. 5.

29 Southern School N ew s, February 3, 1955, p. 10, c. 4.
30 Southern S chool N ews, January 6, 1955, p. 6, c. 2.
31 Indeed, Governor Marvin B. Griffin of Georgia has asserted: 

“ However, if this court is so unrealistic as to attempt to enforce this 
unthinkable evil upon us, I serve notice now that we shall resist it 
with all the resources at our disposal and we shall never submit to 
the proposition of mixing the races in the classrooms of our schools.”



17

already begun to implement this Court’s decision and any 
delay as to them may imperil the progress already made.32 
The states in the second category have indicated a willing­
ness to do whatever this Court directs and there is cer­
tainly no reason for delay as to them. The probable effect 
of delay, as to states in the third category, must be evalu­
ated in the light of their declared intentions; we are justi­
fied in assuming that it would have no affirmative effect, 
but would merely provide additional time to devise and 
put into practice schemes expressly designed to thwart 
this Court’s decision.

Conclusion

Appellants recognize that the problems confronting this 
Court, as it turns to the implementation of its decision in 
these cases, are of primary magnitude. Their high serious­
ness is enhanced by the fact that sovereign states are in 
effect, though not formally, at the bar and that the evil to 
which the Court’s decree must be directed is no transitory 
wrong but is of the essence of the social structure of a 
great section of our nation.

Yet, it should be borne in mind that the very magnitude 
of these problems exists because of the assumption, tacitly 
indulged up to now, that the Constitution is not to be 
applied in its full force and scope to all sections of this 
country alike, but rather that its guarantees are to be 
enjoyed, in one part of our nation, only as molded and 
modified by the desire and customs of the dominant com­
ponent of the sectional population. Such a view, however 
expressed, ignores the minimum requirement for a truly 
national constitution. It ignores also a vast part of the

32 See, e.g ., S tein er  v. S im m on s, 111 A. 2d 574 (Del. 1955), 
revg. 108 A. 2d 173 (Del. 1954). There the Supreme Court re­
versed a chancery court determination that forthwith desegregation 
was proper under the decision of this Court of May 17, 1954.



t

18

reality of the sectional interest involved, for that interest 
must be composed of the legitimate aspirations of Negroes 
as well as whites, it certainly ignores the repercussions 
which any reluctance to forthrightly enforce appellants’ 
rights would have on this nation’s international relations. 
Every day of delay means that this country is failing to 
develop its full strength.

The time has come to end the division of one nation into 
those sections where the Constitution is and those where 
it is not fully respected. Only by forthright action can the 
country set on the road to a uniform amenability to its 
Constitution. Finally, the right asserted by these appel­
lants is not the only one at stake. The fate of other great 
constitutional freedoms, whether secured by the Fourteenth 
Amendment or by other provisions, is inevitably bound up 
in the resolution to be made in these cases. For delay in 
enforcement of these rights invites the insidious prospect 
that a moratorium may equally be placed on the enjoyment 
of other constitutional rights.

In disposing of the great issues before it, this Court 
should do no less than order the abolition of racial segrega­
tion in public education by a day certain, as heretofore set 
forth in Appellants ’ Brief on Further Reargument.

Respectfully submitted,

CH ARLES L. BLACK, JR., 
ELW O O D  H. CHISOLM , 
W IL L IA M  T. COLEM AN, JR., 
CH ARLES T. DUNCAN,
GEORGE E. C. H AYES,
LOREN M ILLER,
W IL L IA M  R. MING, JR., 
CO N STAN C E B A K E R M OTLEY, 
JAM ES M. N A B R IT, JR ,
LOUIS H. POLLAK,
F R A N K  D. REEVES,
JOHN SCOTT,
JACK B. W E IN ST E IN ,

of Counsel.

H AR O LD  BO U LW A RE,
RO BE RT L. CARTER,
JACK GREENBERG,
O LIV E R  W . HILL,
TH U RGO O D  M ARSH ALL,
LOUIS L. REDDING, 
SP O T T SW O O D  W . ROBIN SON, III, 
CH ARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.



1





f



Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman  3-231 
49



Nos. 1, 2, 3, 4, 5

Jitik J& q jrtm t Ojoart of t k  3 B n M  plates
OCTOBER TERM, 1954

No. 1
O LIVER BROW N, ET A L „ APPELLANTS 

v.
BOARD OP EDUCATION OF TOPEKA, ET AL.

No. 2
H ARRY BRIGGS, JR., ET AL., APPELLANTS 

v.
R. W. ELLIOTT, ET AL.

No. 3
DOROTHY E. DAVIS, ET AL., APPELLANTS 

v.
COUNTY SCHOOL BOARD OP PRINCE EDW ARD COUNTY, ET AL.

No. 4
SPOTTSWOOD THOMAS BOLLING, ET AL., PETITIO N ERS

V.

C. M ELVIN SHARPE, ET AL.

No. 5
FRANCIS B. GEBHART, ET AL., PETITION ERS 

v.
ETH EL LOUISE BELTON, E T AL.

BRIEF FOR THE UNITED STATES ON THE FURTHER 
ARGUMENT OF THE QUESTIONS OF RELIEF

HERBERT BROWNELL, Jr.,
Attorney General, 

SIMON E. SOBELOFF,
Solicitor General,

J. LEE RANKIN,
Assistant Attorney General, 

PHILIP ELMAN,
ALAN S. ROSENTHAL,

Special Assistants to the Attorney General, 
Department of Justice, Washington %5, D. 0.



s m

"tiC-
A.

' A 'v ’-Msi,' f . as .vffcV. i • '

w&m?. ■ 7:

;V -Ay
'■"'jV •' ■:': ■■)/ % a

m Safe!

sViv.
v&r -; • 'v :r\»*' ■ :< AW - • v \ V.x , . A , vV ;.■£ B H S i  P B M K i f i

■ ■ *  . V - ' i  v v :  - i  u - - . * ;  v._v  . v;iV ■ *••.• ^  •-  . ■; .*/, 3   ̂ v | y ' ^ vVt  ̂M ',v; ^
;vV ■■>%■‘ '  . I t ,  til ' ’S i- ’ * : ,  '  . £ m p  , . - > *■ 'S 'SV'Sv ; a s v *  ' . .  ■" ‘i W :  "

... ■ • ■ . /?'. /  ■ - . • . : V  n • - - ' '  - V , 1 j  . ,

. * ; ii.t\ ; . ;^v. ‘ :\ .. . ■  ̂ s' -t

A s s i s f t S  . , '"  , ■ : ’ ’ ■* . 7,  7 7 . ; ,



I N D E X

Pags
I. This Court has full power to direct such relief as

will be most effective and just________________ 3
II. The vindication of the constitutional rights in­

volved should be as prompt as feasible_______ 4
III. The public interest requires an intelligent, orderly 

and effective solution of the problems that 
may he encountered in complying with this
Court’s decision in particular areas___________  6

IY. The nature and extent of the problems that the 
desegregation of public school systems may
entail will vary from area to area____________  8

V. The formulation and execution of programs for 
transition to nonsegregated school systems 
should be undertaken by the responsible school 
authorities under the supervision of the courts
of first instance_______________________________  22

VI. The cases should be remanded to the lower courts 
with directions to carry out this Court’s de­
cision as rapidly as the particular circum­
stances permit________________________________  27

Conclusion___________________________________________  29

CITATION S
Cases:

B row n  v. B oard  o f  E d u ca tion  o f  T opeka , 347 U. S.
483___________________________________ _ 2, 5, 6 ,7 ,8

B u ch an an  v. W a rley , 245 U. S. 60___: __________  19
Sw eatt v. P a in ter , 339 U. S. 629________________ 5

Federal Statutes:
Act of June 25, 1948, c. 646, § 39, 62 Stat. 992._ 23
R. S. 698 (28 U. S. C. (1946 ed.) 863)___________ 23
28 U. S. C. 2106_________________________________ 3

(i)



n

State Statutes: PaBe
D. C. Code (1951 ed.), § 31-670________________  10

§ 31-671________________  10
§ 31—1110_______________  10
§ 31—1112_______________  10

Maryland Annotated Code (Flack ed., 1951), Art.
77, §§ 42 (4), 208---------------------------------------------  10

Mississippi Code (1942 ed.) 6276________________ 10
South Carolina Code (1952) §§ 21-251, 290______  10

Miscellaneous:
Ashmore, The Negro and The Schools (1954), pp.

158-159_______________________________________  15
New York Times, June 30, 1954, p. 19__________  30
Southern School News, September 3, 1954, p. 3__ 10
Stone, The Common Law in the United States, 50

Harv. L. Rev. 4 _ ._____________________________ 19
U. S. Department of Commerce, Statistical

Abstract oj the United States (1952), p. 355_____ 9
Williams and Ryan, Schools in Transition (1954) _ 22



Jtttfe  j& tjjm n t djoitrt of ife iS n M  j&atess
O c t o b e r  T e r m , 1954

No. I 1

O l i v e r  B r o w n  e t  a l ., a p p e l l a n t s

v.
B o a r d  o f  E d u c a t i o n  o f  T o p e k a , S h a w n e e  

C o u n t y , K a n s a s , e t  a l .

brief for the united states on the further
ARGUMENT OF THE QUESTIONS OF RELIEF

This brief is filed in response to the Court’s 
invitation to the Attorney General of the United 
States to participate in the further argument 
of these cases on the questions of relief. It is 
now the settled law of the land that segregation 
of white and colored children in the public schools 
of a State or of the District of Columbia is un­
constitutional. There remain for consideration 
and decision only the questions as to the de­
crees that should be entered in these cases in 
order to achieve compliance with the Court’s 
ruling.

1 Together with No. 2, Harry Briggs, Jr., et al. v. R. JV. 
Elliott, et al.; No. 3, Dorothy E. Davis, et al. v. County 
School Board of Prince Edward County, et al.; No. 4, Spotts- 
wood Thomas Bolling, et al. v. C. Melvin Sharpe, et al; and 
No. 5, Frands B. G eh hart, et al. v. Ethel Louise Belton, et al.

( 1)



2

The views o f the Government on these questions 
are set forth in this brief. At the outset it may be 
helpful to state, in summary fashion, our answers 
to the questions formulated by the Court (347 IT. S. 
483, 495-96):

4. Assuming it is decided that segrega­
tion in public schools violates the Four­
teenth Amendment

(a ) would a decree necessarily follow 
providing that, within the limits set by nor­
mal geographic school districting, Negro 
children should forthwith be admitted to 
schools of their choice ? No.

(b ) or may this Court, in the exercise of 
its equity powers, permit an effective grad­
ual adjustment to be brought about from 
existing segregated systems to a system not 
based on color distinctions ? Yes.

5. On the assumption on which questions 
4 (a ) and (b ) are based, and assuming 
further that this Court will exercise its 
equity powers to the end described in ques­
tion 4 (b),

(a) should this Court formulate detailed 
decrees in these cases ? No.

(b ) i f  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 de­
crees? No.

(d ) should this Court remand to the 
courts of first instance with directions to 
frame decrees in these cases, and, if  so, what



3

general directions should the decrees of this 
Court include and what procedures should 
the courts o f first instance follow in arriv­
ing at the specific terms of more detailed 
decrees? Yes. The provisions suggested 
for  inclusion in the decrees are otitlined at 
pp. 27-29, infra.

I
T H IS  COURT H A S  F U L L  PO W E R  TO DIRECT SU C H  RELIEF 

AS W IL L  BE M OST EFFECTIVE A N D  JU ST

Question 4 need not detain the Court long. 
The Government, in its brief submitted on the 
previous reargument, reviewed the authorities 
bearing on the scope o f the Court’s remedial 
powers (Br. 152-167), and concluded that the 
Court has “ undoubted power in these cases to 
enter such decrees as it determines will be most 
effective and just in relation to the interests, 
private and public, affected by its decision”  (Br. 
167). W e noted that Congress has expressly 
empowered the Court, in fashioning effective re­
lief in cases coming before it, to enter “ such 
appropriate judgment, decree, or order, or re­
quire such further proceedings to be had as may 
be just under the circumstances”  (28 U. S. C. 
2106). This provision reflects the breadth and 
flexibility of judicial remedies which are avail­
able to the Court. The shaping of appropriate 
relief in the present cases, as all will agree, in­
volves considerations o f a most sensitive and



4

difficult nature. But, as was stated in our earlier 
brief (p. 154), “ we believe there can be no doubt 
o f the Court’s poiver to grant such remedy as 
it finds to be most consonant with the interests 
of justice.”

I I
THE VINDICATION OF THE CONSTITUTIONAL RIGHTS 

INVOLVED SHOULD BE AS PROMPT AS FEASIBLE

The fashioning o f relief in these cases does not 
call for the formulation or application of new or 
unusual legal principles. On the contrary, the 
task confronting the Court is one which presents 
itself whenever it has been judicially found that 
legal rights have been, and are continuing to be, 
violated. The question is always one of deter­
mining how, in the light o f the facts presented 
and within the limits of the power possessed by 
it, the Court can best insure the removal of the 
condition o f illegality in a manner comporting 
not only with the interests of the parties but also, 
to the extent it may be involved, with the public 
interest.

In  many instances the solution to this problem 
is quite simple. The balancing o f the relevant 
considerations may lead inescapably to the con­
clusion that the legitimate interests of all con­
cerned require only immediate termination o f the 
unlawful conduct. In such circumstances a court 
of equity normally does no more than to enter a 
decree enjoining that conduct. It is where the



5

scales are not so clearly tipped in that direction that 
the shaping of the appropriate remedy involves 
difficulties.

The Court recognized, in restoring these cases 
to the docket for further argument (347 U. S. 
at 495), that “ the formulation o f decrees in these 
cases presents problems of considerable complex­
ity.”  These problems must be viewed in proper 
perspective. The starting point must be a recog­
nition that we are dealing here with basic con­
stitutional rights, and not merely those o f a few 
children but o f millions. These are class actions. 
Under the Court’s decision the maintenance of 
segregated schools is in violation of the constitu­
tional rights not only of the individual plaintiffs 
but of all other “ similarly situated”  colored chil­
dren upon whose behalf the suits were brought. 
Relief short o f immediate admission to nonsegre- 
gated schools necessarily implies the continuing 
deprivation of these rights. The “ personal and 
present”  right (cf. Sweatt v. Painter, 339 U. S. 
629, 635) o f a colored child not to be segregated 
while attending public school is one which, if  not 
enforced while the child is o f school age, loses its 
value. Hence any delay in granting relief is pro 
tanto an irretrievable loss of the fight.

The unconstitutionality o f racial segregation in 
public schools is no longer in issue. However, 
in considering whether any delay in granting full 
relief is justifiable, it must be borne in mind that 
continuation o f school segregation has harmful



6

effects both on the individuals concerned and on 
the public. The right of children not to be seg­
regated because o f race or color is not a technical 
legal right o f little significance or value. It  is a 
fundamental human right, supported by consider­
ations o f morality as well as law. “ To separate 
[colored children] from others of similar age and 

qualifications solely because of their race generates 
a feeling o f inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way unlikely ever to be undone”  (347 U. S. at 494). 
Racial segregation affects the hearts and minds of 
those who segregate as well as those who are segre­
gated, and it is also detrimental to the community 
and the nation.

In the absence o f compelling reasons to the con­
trary, therefore, there should be no unnecessary 
delay in the full vindication of the constitutional 
rights involved in these cases, and i f  any delay 
is required, it should be kept to a minimum.

I l l
THE PUBLIC INTEREST REQUIRES AN INTELLIGENT, 

ORDERLY AND EFFECTIVE SOLUTION OF THE PROB­
LEMS THAT MAY BE ENCOUNTERED IN COMPLYING 
WITH THIS COURT’S DECISION IN PARTICULAR AREAS

No objective examination of the problems of 
relief can overlook the fact that the impact of 
the Court’s decision holding racial segregation 
in public schools to be unconstitutional goes far 
beyond the areas and parties involved in these 
cases. As a binding precedent the decision re­
quires the termination o f segregation in school



7

systems in more than one-third o f the States and 
in the District o f Columbia.

Because public education is, as the Court has 
recognized (347 U. S. at 493), “ perhaps the 
most important function o f state and local gov­
ernments,”  there is a public interest to be served 
in permitting the transition to be carried out in 
an orderly manner, so as to avoid needless dis­
location or other impairment o f the effective 
operation o f the school systems concerned. A  
prime consideration in dealing with the problems 
of desegregation must be that the systems of 
public education in the United States should not 
be adversely affected. Public education is one 
of the glories of the United States, and an in­
dispensable source of its power. The richest 
resources of the United States are its citizens, 
and, as the Court has observed (347 U. S. at 493), 
education “ is the very foundation of good 
citizenship. ’ ’

It must be recognized that racial segregation 
in public schools is not a separate and distinct 
phenomenon. It  is part o f a larger social pat­
tern of racial relationships. The Court’s decision 
in these cases has outlawed a social institution which 
has existed for a long time in many areas through­
out the country— an institution, it may be noted, 
which during its existence not only has had the 
sanction of decisions o f this Court but has been 
fervently supported by great numbers of people as 
justifiable on legal and moral grounds. The 
Court’s holding in the present cases that segrega­
tion is a denial o f constitutional rights involved an

322344— 54-------2



8

express recognition of the importance of psycho­
logical and emotional factors; the impact of seg­
regation upon children, the Court found, can so 
affect their entire lives as to preclude their full 
enjoyment of constitutional rights. In similar 
fashion, psychological and emotional factors are 
involved— and must be met with understanding 
and good will— in the alterations that must 
now take place in order to bring about compliance 
with the Court’s decision. The practical difficul­
ties which may be met in effecting transition to 
nonsegregated public school systems should there­
fore be taken into account in determining the 
most effective means for ending school segrega­
tion in particular areas. The Court itself has 
recognized, in restoring these cases to the docket 
for further argument on the questions of relief, 
that these difficulties cannot be resolved by a 
single stroke of the judicial pen.

Broadly speaking, therefore, the decrees in 
these cases should be framed to require a transi­
tion which achieves the most expeditious com­
pliance with the constitutional mandate and at 
the same time permits the intelligent, orderly, 
and effective solution of the problems that may 
be encountered in desegregating school systems in 
particular areas.

IV
THE NATURE AND EXTENT OF THE PROBLEMS THAT

THE DESEGREGATION OF PUBLIC SCHOOL SYSTEMS
MAY ENTAIL WILL VARY FROM AREA TO AREA

As the Court has noted (347 U. S. at 495), 
there is a “ great variety of local conditions,”



9

which will undoubtedly affect the nature and ex­
tent o f the changes in public school systems and 
practices required to bring about compliance 
with its decision. Without elaborating in detail 
the structure and organization o f the educational 
systems of the States and the District o f Colum­
bia, it is not difficult to outline some of the kinds 
of problems which may arise in making a transi­
tion to nonsegregated systems.

1. The implementation of any program for the 
desegregation of public school facilities will be, 
of course, the responsibility of no single indi­
vidual or administrative body. Indeed, o f all 
governmental activities, education is undoubtedly 
the most decentralized, its administrative and fi­
nancial base being shared between the states and 
their political subdivisions. And the extent o f 
local participation is brought into perhaps sharper 
focus by the fact that o f the approximately 
120,000 governmental units tabulated by the Cen­
sus Bureau in 1951, more than 70,000 were school 
districts.2

The division o f authority between state and 
local school officials customarily is delineated by 
the state legislature. In  most jurisdictions, the 
state board o f education and school superintend­
ent have the statutory duty o f making the broad 
policy decisions affecting the state school system 
as a whole, enforcing state laws relating to the

2 U. S. Department o f Commerce, S ta tistic a l A b s tr a c t  o f  
th e U n ite d  S ta te s  (1952), p. 355.



10

operation of schools and, in general, insuring that 
all school units meet certain minimal standards. 
Local authorities, within the framework of state 
educational policy as embodied in statutes, regu­
lations and directives, exercise control over the 
intimate details of school management within their 
district or other operating unit.

The problems that will confront authorities 
on the state level thus will be principally ones 
o f revising state laws and regulations which were 
tailored to fit the needs of a segregated school 
system. In South Carolina, for example, the 
statutory formula now employed in the distribu­
tion of state funds for teachers’ salaries re­
quires that minimum enrollment and average 
daily attendance in each district be determined 
separately for each race.3 In several jurisdic­
tions, the law provides for school officials whose 
duties are limited to the supervision o f Negro 
schools; 4 in others, the legislature has provided 
for entirely separate Negro and white school dis­
tricts encompassing the same area.5

3 South Carolina Code (1952), §§21-251, 290. Cf. D. C. 
Code (1951 ed .), §§ 31-1110,31-1112.

4 See e. g., D. C. Code (1951 ed), §§ 31-670, 31-671; Anno. 
Code o f Maryland (Flack ed., 1951), Art. 77, §§ 42 ( 4 ), 208.

5 See e. g., Mississippi Code (1942 ed.) 6276. In  some states 
separate Negro school districts are maintained even in the 
absence o f a legislative requirement. In Delaware, for ex­
ample, there are at least 42 such districts. It has been re­
ported that at the next session o f the Delaware General 
Assembly, legislation will be introduced to merge them with 
white school districts. See S o u th e r n  S c h o o l N e w s , Septem­
ber 3,1954, page 3.



11

2. Because local school authorities have consid­
erable discretion respecting many facets of school 
administration, and because there is a wide va­
riety in local conditions, it can be expected that, 
even within the same state, no two school dis­
tricts will be faced with precisely the same prob­
lems in accomplishing an effective transition to 
nonsegregated school systems.

(a) In districts where there is more than one 
school, adjustments in the method employed for 
allocating students to particular schools may have 
to be made. In  the majority of such districts, 
children are given little, i f  any, choice as to the 
school they are to attend. Instead, each school 
in the district is assigned a particular attendance 
area and the pupil must enroll in the facility 
within whose attendance boundaries he resides.

Many factors are taken into consideration in 
drawing these boundaries, foremost among them 
being the size and character o f the school, the 
geographical distribution o f the school popula­
tion in the district, and the ease and safety of 
public travel to and from school. In the case of 
segregated school systems, boundaries are formu­
lated separately for white and colored facilities, 
with the result that the overall objective o f mak­
ing the maximum use o f total school facilities and 
minimizing travel difficulties is seldom achieved. 
Changes in the racial character o f a neighbor­
hood frequently cause overcrowding in some 
schools while others operate at far below capacity.



12

Similarly, children of both races are often com­
pelled to travel long distances to reach the segre­
gated schools to which they are assigned.

The extent of the boundary alterations re­
quired, in the reformulation o f school attendance 
areas on a non-racial basis, will vary. This is 
illustrated by the recent experience in the Dis­
trict o f Columbia in recasting attendance bound­
aries on a wholly geographical basis. In  the 
neighborhoods where there is little or no mixture 
of the races, and where school facilities have been 
fully utilized, it was found that the elimination 
of the racial factor did not work any material 
change in the territory served by each school. 
In  biracial neighborhoods, however, the objective 
o f securing maximum utilization of facilities, on 
a non-racial basis, could be achieved only by 
making radical revisions in the area covered by 
the formerly Negro and white schools.

In connection with the formulation of new 
attendance boundaries, school districts may be 
called upon to review or alter prevailing prac­
tices regarding pupil transfers. Because it is 
almost impossible to fix boundaries which do not 
work a hardship on any pupils, many communi­
ties now permit enrollment outside the attendance 
area o f residence in exceptional circumstances. 
Pupils on the secondary school level occasionally 
are allowed to attend a school at a distance from 
their homes because it offers courses o f instruc­
tion not otherwise available. Specialized needs of



13

mentally or physically handicapped children may 
cause them to be grouped together for instruc­
tional purposes. And pupils not possessing an 
adequate knowledge of the English language 
sometimes are placed in separate schools until 
that knowledge is acquired. While the allowance 
of transfers and special assignments for reasons 
of this character is fully warranted and un­
doubtedly will be continued, some districts may 
be confronted with efforts by students to attend 
schools in other areas for the sole and unjusti­
fiable purpose o f avoiding enrollment in a bi- 
racial facility.

(b) At the same time that procedures are de­
vised for the assignment of pupils to schools on 
a basis not involving distinctions o f color, some 
districts may have to readjust the use o f their 
facilities. In  low population rural areas now 
maintaining two schools solely by reason of the 
dual system, educational and economic considera­
tions may dictate consolidation. There are sev­
eral ways in which this consolidation might be 
accomplished. Where existing structures are 
small or otherwise inadequate, a new school might 
be constructed to accommodate all children. An­
other solution might be to close one o f the schools 
and transfer its pupils to the other.

In areas where there is a considerable dis­
parity in the quality and curricula of the former 
white and Negro schools, the problem of read­
justment may be more troublesome. Parents will



14

be understandably reluctant to send their chil­
dren to schools markedly inferior to those previ­
ously attended, or which do not provide courses 
of instruction that would have been begun or con­
tinued if  no transfer had been required. While 
the long-range answer to a substantial part o f 
this problem may be the improvement o f sub­
standard schools, or the construction o f new ones, 
school administrators may have to devise stop­
gap methods—not involving continuation of ra­
cial segregation—to protect the interests of chil­
dren now in school.

(c ) Teachers may have to be reassigned and 
changes made in the method of their selection, 
with due regard to the safeguarding of seniority 
and tenure rights. In areas which now have sep­
arate eligibility lists for white and colored 
teachers, new lists combining applicants of both 
races may be established.6 Salary differentials

6 This step was taken in both the District o f Columbia 
and in Baltimore. In  the former, under the segregated sys­
tem, Negro and white applicants for teaching positions took 
separate examinations conducted by separate boards o f  ex­
aminers. Performance on these qualifying examinations de­
termined position on the eligibility lists maintained for 
applicants o f  each race and the lists in turn provided the 
sole basis o f  appointment. In  June 1954, the boards o f  ex­
aminers were merged into a single board under the direct 
chairmanship o f the superintendent o f  schools, teacher ex­
aminations were held on an integrated basis for  the first time, 
and eligibility lists were consolidated. For each level o f



15

may have to be eliminated.7 And, on the super­
visory level, in communities maintaining separate 
supervisors for Negro schools a general realign­
ment o f duties may be necessary.®

(d) Most rural and some urban areas provide 
transportation to and from schools. Communi­
ties which have maintained separate transporta­
tion facilities for the two races may have to 
reorganize schedules and routes. And some lo­
calities may discover that there will be a need
instruction, there is now hut a single list on which no ref­
erence is made to the race o f  any o f the named individuals.

In Baltimore, the compilation o f separate lists involved not 
only the grade received on a written examination, adminis­
tered to white and colored alike, but in addition the results 
o f an oral interview and the evaluation o f  the applicant’s 
previous experience. In  combining the lists, Baltimore did 
not disturb these criteria; nor was a change made in the 
established practice o f selecting any one o f the five highest 
ranking qualified individuals to fill a vacancy.

7 In  1952, the average annual salaries o f  white and Negro 
classroom teachers in 12 Southern states were $2,740 and 
$2,389, respectively. A  part o f this differential may be ex­
plained by the fact that the average amount o f  college train­
ing possessed by the white teachers was slightly higher. 
And between 1940 and 1952, the gaps in both salary and 
training averages were substantially diminished. See Ash­
more, The, N e g r o  and T h e  S c h o o ls  (1954), pp. 158-159.

8 Baltimore’s dual system, fo r  example, had five assistant 
school superintendents serving on a systemwide basis and one 
assistant superintendent for  Negro schools.

3 2 2 3 4 4 — 54 3



16

for additional vehicles or, conversely, that less 
equipment will be necessary.9

(e) A  few school districts may have to com­
pensate for differences in the educational back­
grounds of newly integrated pupils. In localities 
where the segregated Negro facilities were in­
ferior, colored students may find it difficult to 
pursue satisfactorily the same studies as white 
students in the same grades. School authorities 
faced with that problem may desire to give 
tests to determine the grade to which each student 
should be assigned. Or such tests might be em­
ployed for the purpose of selecting students for 
additional and intensified instruction in subjects 
in which they are deficient.

3. Because, as has been noted, the responsi­
bility for the financial support o f public educa­
tion is distributed between the state and its 
subdivisions, the economic burdens incident to 
the implementation o f integration also will fall 
upon several levels o f government. These bur­
dens, however, will flow largely from the present 
inequality, in a physical sense, of separate Negro 
schools. As a consequence, even if  the dual sys­
tem were to continue, many areas would be faced

9 The requirement o f additional equipment will be gen­
erally restricted, o f course, to places where present facilities 
have not been sufficient to provide adequate transportation 
for all pupils. It cannot therefore be regarded as, in any 
real sense, a problem arising from the elimination o f 
segregation.



17

with the necessity o f making substantial outlays 
for capital improvements.

Indeed, the financial cost o f an “ equalization”  
program for separate schools unquestionably 
would be far greater. No matter how small the 
Negro population in the particular area, it would 
have to be provided with facilities and equipment 
equivalent in all respects to those provided in 
white schools. In similar circumstances, a non- 
segregated school system may find that the educa­
tional needs of all children will be satisfied by 
merely closing down the former Negro school 
and transferring its pupils to other facilities.

While, placed in perspective, economic con­
siderations would seem to furnish less of an ob­
stacle to the maintenance of integrated schools 
than to “ separate but equal”  schools, it should 
be noted that if  expenditures per classroom unit 
are to be continued at current levels for white 
children, an additional annual expenditure of over 
160 million dollars will be required in the states 
involved and the District o f Columbia. In  respect 
to pupil transportation services, the estimated 
capital outlay is 40 million dollars. And the 
estimated cost of “ equalizing”  Negro schools is 
in excess o f two billion dollars.10

4. In addition to problems of a purely ad­
ministrative or fiscal character, school authorities

10 These estimates have been furnished by the Office o f 
Education, U. S. Department o f  Health, Education and 
Welfare.



18

may have to cope with a certain amount of 
popular hostility towards the elimination o f segre­
gation in public schools. This results from  the 
fact that in each of the areas involved the dual 
system has existed for generations and is accepted 
by many as being a part of the “ way of life ” 
o f the area. And the fear has been expressed in 
some quarters that the opposition to any de­
parture from the existing pattern will mani­
fest itself in the withdrawal of state aid to 
education and in other action on state and local 
levels designed to prevent or impair the effective 
operation of public schools on a nonsegregated 
basis.

We do not believe that there is warrant for 
presuming that responsible officials and citizens 
will tolerate violations of the Constitution.11 The 
solutions to these problems, like all others in a 
democracy, will emerge from the “  sober second

11 The well-publicized student disturbances which occurred 
recently in some localities certainly provide no basis for  such 
a presumption. For one thing, these disturbances were 
isolated; in the overwhelming majority o f  the areas which 
have begun or completed compliance with this Court’s deci­
sion, the adjustment has been remarkably free o f untoward 
incident. Moreover, it appears to be the fact that the mis­
conduct was in substantial measure incited by a small num­
ber o f reckless and irresponsible individuals and groups, 
many from  without the community, who took fu ll advantage 
o f  some students’ immaturity. And, as is so often true in 
such circumstances, where school and law enforcement au­
thorities made clear their determination neither to counte­
nance nor to capitulate to lawlessness, the disturbances ended 
as abruptly as they had started.



19

thought o f the community, which is the firm base 
on which all law must ultimately rest.”  (Stone, 
The Common Law in the United States, 50 Harv. 
L. Rev. 4, 25.) Popular hostility, where found 
to exist, is a problem that needs to be recognized 
and faced with understanding, but it can afford 
no legal justification for a failure to end school 
segregation. Racial segregation in public schools 
is unconstitutional and will have to be termi­
nated as quickly as feasible, regardless o f how 
much it may be favored by some people in the 
community. There can be no “ local option”  on 
that question, which has now been finally settled 
by the tribunal empowered under the Constitution 
to decide it.12

While general community hostility cannot serve 
as justification for avoiding or postponing com­
pliance with the constitutional mandate, it is 
relevant in determining the most effective 
method for ending segregation in the particular

12 “ That there exists a serious and difficult problem arising 
from a feeling o f race hostility which the law is powerless to 
control, and to which it must give a measure o f consideration, 
may he freely admitted. But its solution cannot be promoted 
by depriving citizens o f  their constitutional rights and privi­
leges." B u ch a n a n  v. W a r le y , 245 U. S. 60,80-81.

In any event, this would not be the proper occasion or 
time to adjudicate possible attempts to evade or circumvent 
this Court’s decision. Such questions, like all other ques­
tions o f  constitutional law, must be resolved when they 
arise concretely, in a factual setting, and when this Court 
can have the benefit o f findings o f  fact and the judgment 
o f  the lower courts.



20

locality. School administrators will have an ob­
vious concern in obtaining public support and 
acceptance of the transition. The extent of the 
difficulties which may be encountered will de­
pend, o f course, upon the state o f local opinion, 
which in turn is influenced by such varied factors 
as the economic structure, geographical location, 
and relative numbers of whites and Negroes in 
the community. There is, however, a general 
recognition of the need for thoughtful advance 
preparations to resolve the problems of desegrega­
tion with as few disruptions as possible. I f  any 
lesson can be derived from past experiences in 
ending segregated school systems, it is the im­
portance of public confidence in the ability o f 
school administrators to accomplish the adjust­
ment without, in the process, losing sight o f or 
sacrificing the basic and continuing educational 
needs o f all the children affected.13

13 In  presenting his program for  integration for  the ap­
proval o f the Board o f Education, the Superintendent o f 
Schools o f the District o f  Columbia laid emphasis on the 
consideration o f  the educational growth and welfare o f  the 
school child. Thus, in justification o f the proposal that each 
presently enrolled pupil be granted a limited option to remain 
in the school he now attends even though he does not reside 
within its new attendance boundaries, the Superintendent 
enumerated the ways in which this would provide “ stability, 
continuity and security in the educational experiences o f  
pupils during the transition period.”  ( See brief for  respond­
ents in No. 4, p. 13.)

While we do not describe the District of Columbia pro-



21

In some areas it may be found advisable to 
preface the desegregation process with programs, 
not extending for more than a few months, 
designed to promote interracial understanding 
among students, teachers, and parents. Such 
preparatory measures were taken in many of the 
localities which have abolished segregated school 
systems in recent years. In one New Jersey 
community, for example, funds were appropriated 
to allow several selected teachers to attend a 
special workshop on human relations conducted 
at a state university. In addition, an extension 
course on the same subject was offered by school 
authorities during the year preceding desegrega­
tion and was well attended by teachers. In  other 
areas civic, P-TA, religious, and fraternal groups 
took the initiative in establishing a favorable 
climate for making the transition. It was found 
that the efforts o f these groups were instrumental 
in reducing many of the pre-existing racial ten­
sions in the community, with the result that

gram in detail here, since this is undertaken in the brief for 
respondents in No. 4, we think it reflects credit upon those 
responsible for  its formulation and execution. In  every 
significant respect, the plan evidences painstaking care on the 
part o f school officials to realize the expressed objective o f 
an expeditious transition calculated “ to make the best use 
o f the total resources o f the school system in plant and per­
sonnel, to serve the best interest o f all the pupils, and to 
promote the general welfare o f the community.”  (See brief 
for respondents in No. 4, p. 11.)



2 2

integration was accomplished speedily and with 
little or no serious friction or incident.14

V
THE FORMULATION AND EXECUTION OF PROGRAMS 

FOR TRANSITION TO NONSEGREGATED SCHOOL SYS­
TEMS SHOULD BE UNDERTAKEN BY THE RESPONSIBLE 
SCHOOL AUTHORITIES UNDER THE SUPERVISION OF 
THE COURTS OF FIRST INSTANCE

For the reasons which have been summarized, 
it is clear that no single formula or blueprint is 
readily susceptible of application to all localities 
which must end segregation in their school sys­
tems. The measures essential to bringing about 
an expeditious, orderly, and effective transition 
in any given area will depend on the special 
conditions and problems in that area. And since 
there is wide variance in local conditions, what 
may be practicable in one community may be 
wholly inappropriate in another.

A  prerequisite to the formulation, initiation, 
and supervision o f any practicable program for 
ending segregation is a knowledge o f the special 
problems and needs of the particular community. 
It is the responsible school authorities and the 
courts o f first instance in each area who will have 
the greatest familiarity with local conditions and

14 The transitional experiences o f twenty-four communities 
in six states which within the past ten years desegregated 
their public school systems are the subject o f  a study con­
ducted under the auspices o f the Fund fo r  the Advancement 
o f Education o f the Ford Foundation. W illiams and Ryan, 
S c h o o ls  in  T ra n sitio n  (1954).



23

who will be in the best position to evaluate their 
significance and effect in accomplishing desegre­
gation in as short a period as feasible. For this 
reason, this Court should not, either itself or 
with the assistance o f a special master appointed 
by it,15 delineate the precise steps that each of 
the defendants should take in ending segregation 
in the public school systems. Instead, the pri­
mary responsibility for both devising and carry­
ing out programs for the expeditious accomplish­
ment o f the required transition should be placed 
upon the defendants, to be exercised under the 
continuing direct supervision of the district courts 
or appropriate state courts.

This Court, we believe, should lay down stand­
ards for the guidance of the lower courts in 
carrying out its decision. A  remand for further 
proceedings, without more, would add to the un­
certainty and doubt which already exist and would 
only serve to make the process of adjustment 
more difficult.

Specifically, the lower courts should be in­
structed to require the defendants either to admit

15 W hile we do not believe that the Court should appoint a 
special master to hear evidence, there can be no question o f 
its power to do so. In  the 1948 revision o f the Judicial Code, 
Congress expressly repealed R. S. 698 [28 U. S. C. (1946 ed.) 
863] which had provided that “ [u ]pon  the appeal o f any 
cause in equity, * * * no new evidence shall be received in 
the Supreme Court.”  A ct o f June 25, 1948, c. 646, § 39, 62 
Stat. 992. W e find nothing to suggest that the legislative 
purpose was other than to remove the restriction entirely.



24

the plaintiffs, and other Negro children similarly 
situated, forthwith to public schools on a non- 
segregated basis or to propose promptly, for the 
court’s consideration and approval, an effective 
program for accomplishing the transition as soon 
as practicable. In passing upon the acceptability 
of proposed programs, the criterion should be 
whether the defendants have sustained the bur­
den of showing that their particular program will 
bring about the total elimination of racial consid­
erations in the admission of pupils to public 
schools as rapidly as local conditions allow. And 
in determining whether the projected plan repre­
sents the most expeditious means o f accomplishing 
an effective transition, the courts should be per­
mitted to take into account the scope o f the 
administrative adjustments that are called for 
and the particular conditions existing in the com­
munity. Where there are no solid obstacles to 
desegregation, delay is not justified and should 
not be permitted. It is only where the lower 
court finds, upon clear and convincing evidence, 
that the defendants have met the burden of show­
ing that immediate (i. e., at the beginning of 
the next school term) completion of the desegre­
gation program is impracticable, that any delay 
is justifiable. And, in such a situation, the dis­
trict court should fix the shortest practicable pe­
riod for completing desegregation.

Although it would be helpful if  this Court could



25

specify outside limits for the period of desegrega­
tion, we do not think it would be feasible to 
do so at this time. Apart from the fact that 
there is no way of judging at this point what 
integration will involve in the particular area, 
maximum periods tend to become minimum pe­
riods. This Court should not enter any order 
which might have the practical effect o f slowing 
down desegregation where it could be swiftly ac­
complished. The Court, however, should make 
it clear that any proposal for desegregation over 
an indefinite period will be unacceptable, and that 
there can be no justification anywhere for failure 
to make an immediate and substantial start to­
ward desegregation, in a good-faith effort to end 
segregation as soon as feasible.

Further, the lower courts should be instructed 
to be insistent that any interval permitted for the 
accomplishment of desegregation is being fully 
utilized. Any period during which little or 
nothing is being done to further the transition 
would serve no useful purpose and, indeed, would 
only intensify the difficulties. Whether time will 
be useful will depend on how it is used; delay 
solely for the sake of delay is intolerable. Where 
a period of time is allowed for transition, it 
should be for the sole purpose of enabling neces­
sary constructive measures to be taken, and not 
for the purpose of permitting postponement 
per se.



2 6

I f  the program for desegregation formulated 
by the defendants will remove, as expeditiously 
as possible, state-imposed or state-supported racial 
classifications o f pupils in public schools, the lower 
courts should not substitute their judgment re­
specting the administrative features o f the pro­
gram for that o f the school authorities. The 
Constitution prohibits the maintenance of segre- 
gaged school systems. It does not compel the 
adoption o f any specific type of nonsegregated 
system. The decisive inquiry is whether race or 
color has been entirely eliminated as a criterion in 
the admission of pupils to public schools. The 
essence of the Court’s decision in these cases is 
that there be no governmental action which en­
forces or supports school segregation.

This Court, we believe, should not in its present 
decrees give blanket approval to any particular 
programs for desegregation. The determination 
o f the necessity for, and constitutionality of, any

i

specific plan should not be made in vacuo. Flexi­
bility in responding to developing circumstances 
may become important. The experience in carry­
ing out a plan, once it is begun, may alter the 
assumptions on which it was based. For example, 
it may develop, after a plan is in operation, 
that, it can be carried out more quickly than was 
anticipated at the outset, as has been demon-



27

strated by the experience in the District of 
Columbia.

V I
THE CASES SHOULD BE REMANDED TO THE LOWER 

COURTS WITH DIRECTIONS TO CARRY OUT THIS 
COURTIS DECISION AS RAPIDLY AS THE PARTICULAR 
CIRCUMSTANCES PERMIT

For the reasons outlined above, the Government 
suggests that the Court should enter decrees (a) 
declaring that racial segregation in public schools 
is unconstitutional and that all provisions of law 
requiring or permitting such segregation are in­
valid, and (b) remanding the cases to the appro­
priate courts of first instance for such further 
proceedings and orders as are necessary and 
proper to carry out this Court’s decision.18 The 
decrees should contain specific provisions sub­
stantially as follows:

(1) That the lower court shall forthwith enter 
orders directing the defendants to submit within 
90 days a plan for ending, as soon as feasible, 
racial segregation o f pupils in public schools sub­
ject to their authority or control.

16 In the Delaware case, No. 5, G e b h a rt  v. B e lto n , the A ttor­
ney General o f Delaware, in his brief for  petitioners (pp. 17- 
18), now agrees that the judgment o f the state Supreme 
Court, should be affirmed. Accordingly, since the respond­
ents did not file a cross-petition for  certiorari, it would 
appear that in the Delaware case this Court should simply 
enter an order o f affirmance.



2 8

(2) That, unless a satisfactory plan is sub­
mitted to and approved by the lower court, it 
shall forthwith enter appropriate orders, by way 
of injunction or otherwise, directing admission 
o f the plaintiffs and other children similarly situ­
ated to nonsegregated public schools at the be­
ginning of the next school term.

(3) That, upon submission o f a plan by the 
defendants, the lower court shall promptly hold 
a hearing to determine whether it provides for 
transition to a nonsegregated school system as 
expeditiously as the circumstances permit. The 
defendants shall have the burden of proof on the 
question o f whether, and how long, an interval 
o f time in carrying out full desegregation is re­
quired. In  approving any proposed program, the 
court shall make such modifications as may be 
required, and shall fix the earliest practicable 
date for completion o f the program. And no 
program shall be sanctioned which does not call 
for the immediate commencement o f the proced­
ures necessary to the accomplishment o f the 
transition.

(4) That during the period, i f  any, allowed 
for completion of the program for transition to 
a nonsegregated system, the lower court shall 
require the defendants to submit detailed pe­
riodic reports showing the progress made in end­
ing segregation. The court shall enter such fur-



29

ther orders as may be required from time to time 
in order to insure against unnecessary delay in 
the execution o f the program.

(5) That this Court shall retain jurisdiction for 
the purpose of making such further orders, i f  
any, as may become necessary for carrying out 
its mandate. To this end the lower courts should 
be required to submit information reports to this 
Court at specified intervals showing in detail the 
actions taken in bringing about compliance with 
the requirements of the Constitution. (The Court 
may wish to appoint a special master to review 
such reports and to make appropriate recom­
mendations thereon to this Court and to the lower 
courts.)

CONCLUSION

The responsibility for achieving compliance 
with the Court’s decision in these cases does not 
rest on the judiciary alone. Every officer and 
agency o f government, federal, state, and local, 
is likewise charged with the duty of enforcing 
the Constitution and the rights guaranteed under 
it. And, ultimately, it is the obligation of every 
citizen to respect and abide by the law, once it 
is authoritatively declared. W e have no doubt 
that the American people and the officials through 
whom they act will meet these responsibilities



30

in the spirit, to quote the words of the Presi­
dent, of “ patience without compromise of 
principle.” 17

Respectfully submitted.
H erbert B row nell, J r.,

Attorney General.
S im on  E . S obeloff,

Solicitor General.
J. L ee R a n k in ,

Assistant Attorney General. 
P h il ip  E l m a n ,
A la n  S. R osenthal,

Special Assistants to the Attorney General. 
N ovember 1954.
17 New York Times, June 30,1954, p. 19.

U. S . G O VERN MEN T  P R IN T IN G O FF I C E :  1984



\



%



IN  TH E

(Emtrt of tljp Mnxttb States
October Term, 1954 

No. 1
OLIVER BROWN, et al., Appellants, 

vs.
BOARD OF EDUCATION OF TOPEKA, et al., Appellees.

No. 2
HARRY BRIGGS, JR., et al., Appellants, 

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

No. 3
DOROTHY E. DAVIS, et al., Appellants, 

vs.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 

VIRGINIA, et al., Appellees.

No. 5
FRANCIS B. GEBHART, et al., Petitioners, 

vs.
ETHEL LOUISE BELTON, et al., Respondents.

A ppeals From the U nited States D istrict Courts for the D istrict of 
Kansas, the Eastern D istrict of South Carolina and the E astern 
District of V irginia, and on Petition for a W rit of Certiorari to the 

Supreme Court of Delaware, R espectively

MEMORANDUM BRIEF FOR APPELLANTS IN NOS. 1, 2 
AND 3 AND FOR RESPONDENTS IN NO. 5 ON FURTHER 
REARGUMENT WITH RESPECT TO THE EFFECT OF 

THE COURT’S DECREE

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
LOUIS H. POLLAK,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.





IN THE

&ttprme (Emtrt of th? United States
October Term, 1954

---------------------- o-----------------------
No. 1

O liver  B r o w n , et al., Appellants,
vs.

B oard of E d u catio n  of T o pek a , et al., Appellees.

No. 2

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

R . W . E l l io t t , et al.,

Appellants,

Appellees.

No. 3

D oroth y  E . D avis , et al., Appellants,
vs.

Co u n ty  S ch ool  B oard of P rin ce  E dward  C o u n t y , 
V ir g in ia , et al., Appellees.

No. 5

F ran cis  B . G e b h a r t , et al.,
vs.

E t h e l  L ouise B e lto n , et al.,

Petitioners,

Respondents.

A ppeals F rom  t h e  U n ited  S tates  D istric t  C ourts 
for t h e  D istrict  of K ansas, t h e  E astern  D istric t  of 
S ou th  C aro lin a  and  t h e  E astern  D istric t  of V ir g in ia , 
and on P e t itio n  for a W r it  of C ertiorari to t h e  

S u pr e m e  C ou rt  of D ela w a r e , R espective ly .
---------------------- o----------------------

MEMORANDUM BRIEF FOR APPELLANTS IN NOS. 1, 2 
AND 3 AND FOR RESPONDENTS IN NO. 5 ON FURTHER 
REARGUMENT WITH RESPECT TO THE EFFECT OF 

THE COURT’S DECREE



2

Preliminary Statement

During oral argument question was raised concerning 
the class suit aspect of these cases—the extent of the class 
and effect of a decree on members of the class not before 
the Court. The Court then requested appellants to file 
this memorandum.

I

These Are Spurious Class Suits As Defined by Rule 
23a(3) of the Federal Rules of Civil Procedure.

The complaint in each of the cases was filed by a 
number of Negro public school pupils enrolled in a local 
public school system and their parents or guardians, on 
behalf of themselves and an untold number of unnamed 
persons “ similarly situated” . The defendants in all of 
the cases were local public school authorities, i.e., the 
local boards of education where they were incorporated 
bodies, the members of local school boards and local 
superintendents of schools. The gravamen of every com­
plaint was that the defendants had operated and maintained 
the local public school system under their control and 
supervision on a racially segregated basis pursuant to 
state constitutional and/or statutory provisions; that de­
fendants had denied both the named and unnamed minor 
Negro children admission to public schools set apart for 
white children, solely on the grounds of race or color; 
that both the named and unnamed minor Negro children 
had suffered discriminatory treatment and had been 
irreparably damaged thereby; and that as a result of this 
the named plaintiffs and all others similarly situated had 
been denied rights protected under the Fourteenth Amend­
ment to the Federal Constitution. The relief sought was 
a declaratory judgment which decreed the unconstitution-



3

ality of the state policy authorizing racially segregated 
schools plus an injunction restraining defendants from 
enforcing such legislation and from making any distinc­
tion based on race or color among children attending local 
public schools.

In view of the foregoing summary of the complaints, it 
is clear that there is in each case a specification of the 
essentials of the third or “ spurious”  type of class suit 
defined in Rule 23(a) of the Federal Rules of Civil Pro­
cedure.1

In Briggs v. Elliot, the class represented includes all 
Negro children within the statutory age limits eligible to 
attend public schools and in fact attending such schools 
in School District No. 22 and the Summerton High School 
District (parts of which now form School District No. 1), 
Clarendon County, South Carolina (R. 4-5).2 It also

1 Rule 23 of the Federal Rules of Civil Procedure provides as 
follows:

(a) Representation. If persons constituting a class are so numer­
ous as to make it impracticable to bring them all before the Court, 
such of them, one or more, as will fairly insure the adequate repre­
sentation of all may, on behalf of all, sue or be sued, when the char­
acter of the right sought to be enforced for or against the class is

(1) joint, or common, or secondary in the sense that the owner 
of a primary right refuses to enforce that right and a member of the 
class thereby becomes entitled to enforce it;

(2) several, and the object of the action is the adjudication of 
claims which do or may affect specific property involved in the 
action; or

(3) several, and there is a common question of law or fact affect­
ing the several rights and a common relief is sought.

2 The class as named in the complaint includes all the Negro 
children of school age in South Carolina. Obviously the class could 
only be that broad if the Court had before it a defendant with respon­
sibility for all the State’s public schools. Since these defendants’ 
responsibilities are not that extensive, the class cannot be inclusive 
as the terms of the complaint.



4

includes their parents or guardians (R. 5 ); and both minor 
and adult members of the class are citizens of the United 
States and of the State of South Carolina and residents 
of Clarendon County. At the time of trial there were 959 
minor members of the class (R. 50). During the recent 
oral argument before this Court, counsel for appellees 
reported that approximately 280 members of the class 
remain today (because of the redistricting in Clarendon 
County).

The class represented in Davis v. County School Board 
of Prince Edward County, Virginia, includes all Negroes 
within the statutory age limits to attend the public secondary 
schools of the Prince Edward County who possess the 
qualifications and satisfy all requirements for admission 
thereto (R. 9). Furthermore, the class here, as in the 
above suit, includes the parents or guardians of these 
children (R. 9 ); and all members are residents of Prince 
Edward County as well as citizens of the United States 
and the State of Virginia. The number of Negro children 
in the class was 450 at the time of trial (R. 81, 123), and 
the identical figure was given on reargument for the current 
population of the class.

In sum, the class represented in each case includes all 
Negro children attending or qualified to attend public 
schools in the local public school systems operated, main­
tained and controlled by the defendants.3

3 While the legal considerations are the same in both the Kansas 
and Delaware cases, we see no need to discuss these cases in this 
regard since all members of the class have been recognized by school 
authorities in those cases as entitled to benefit from adoption of a 
policy of school desegregation.



0

Decrees Should Embrace Unnamed Members of the 
Class So They May Benefit Therefrom Without the 
Necessity of Bringing Individual Suits.

This Court has faced the specific question of the effect 
of judgment in a spurious class suit in only one case, Hans- 
berry v. Lee, 311 U. S. 32. There the question presented 
was whether absentee members of a class who appeared 
to be represented in a prior suit were bound by a judgment 
adverse to the interests they asserted in the second suit. 
The Court, reversing the Illinois Supreme Court, ruled 
that the state court’s decision offended due process when 
it held that absentee members of a class were bound by 
a decision in a prior suit. This Court’s ruling was based 
upon the fact that members of the class clearly had con­
flicting interests; and its conclusion was that where the 
first action was brought by some members of the class rep­
resenting a single interest, other members were inade­
quately represented and could not, within the limits of due 
process, be bound by the decision. The Court did not indi­
cate that in other circumstances, where representation was 
adequate, members of the class would not be bound by an 
adverse decision. In fact, the Court said at pp. 42-43:

It is a familiar doctrine of the federal courts that 
members of a class not present as parties to the liti­
gation may be bound by the judgment where they 
are in fact adequately represented by parties who 
are present, . . .  or where for any other reason the 
relationship between the parties present and those 
who are absent is such as legally to entitle the for­
mer to stand in judgment for the latter.

Subsequently, federal courts have construed the deci­
sion in Hansberry v. Lee to mean, as applied to all

11



6

spurious class suits, that all members of the class whose 
interests are in accord with those of the plaintiff in the orig­
inal action will be bound by an adverse decision. Weeks v. 
Bareco Oil Co., 125 F. 2d 84 (C. A. 7th 1941). Cf. Ken­
tucky Home Mutual Life Ins. Co. v. Duling, 190 F. 2d 797, 
802 (C. A. 6th 1951). Thus, there is some indication that, 
absent exceptional circumstances which raise questions of 
due process, members of a class will be bound by an adverse 
decision.

But even if it be assumed that unnamed members of a 
class are not bound by an adverse decision in the prior 
class action, it does not follow that such members may not 
avail themselves of the benefits of a favorable decision in 
that suit. A substantial argument may be made that mem­
bers of a class should in no case be bound by an adverse 
decision in which they did not participate, because they 
have not had their day in court. But no comparable argu­
ment can be made for denying to members of a class the 
benefits of a decision in favor of the class. For defendant 
has had his day in court and he has lost. Knowing that the 
suit was a class action, defendant has been put on notice 
to defend to the hilt, and he has no more reason to reliti­
gate the controversy against absentee members than he 
has to do so against the immediate plaintiff. To allow all 
members of the class to share in the benefits of the judg­
ment would work no prejudice to the defendant; rather it 
would save him a multiplicity of separate suits. See 
Kalven and Rosenfeld, The Contemporary Function of the 
Class Suit, 8 U. of Chi. L. R. 684, 713 (1941).

The question of the effect of a judgment has been liti­
gated infrequently, for in many spurious class actions, espe­
cially those where injunctive and declaratory relief was 
sought, the benefits of such a decision automatically inured 
to all of the members of the class and nothing further was 
necessary to enforce their rights. See McLaurin v. Okla-



7

homa State Regents, 339 U. S. 637; Tureaud v. Board of 
Supervisors, Etc., 116 F. Supp. 248, 249, 251 (E. D. La. 
1953), rev’d on other grounds, 207 F. 2d 807, vacated and 
remanded, 347 U. S. 971; Gonzales v. Sheeley, 96 F. Supp. 
1004,1007, 1009 (D. Ariz. 1951); Wilson v. Board of Super­
visors, 92 F. Supp. 986, 988 (E. D. La. 1950), aff’d, 340 U. S 
909; Johnson v. Board of Trustees of University of Ken­
tucky, 83 F. Supp. 707, 709-710 (E. D. Ky. 1949); Mendez 
v. Westminster School List., 64 F. Supp. 544, 545, 551 
(S. D. Cal. 1946), atf’d, 161 F. 2d 774 (school cases); 
Morris v. Williams, 149 F. 2d 703, 704, 709 (C. A. 8th 
1945); Alston v. School Board of City of Norfolk, 112 F. 
2d 992, 994, 997 (C. A. 4th 1940), cert, denied, 311 U. S. 
693; Davis v. Cook, 80 F. Supp. 443, 444, 452 (N. D. Ga. 
1948), rev’d on other grounds, 178 F. 2d 595; Whitmyer v. 
Lincoln Parrish School Board, 75 F. Supp. 686, 687, 688 
(W. D. La. 1948); McDaniel v. Board of Public Instruction, 
39 F. Supp. 638, 639, 641 (N. D. Fla. 1941); Mills v. Board 
of Education of Anne Arundel County, 30 F. Supp. 245, 
248, 249, 251 (D. Md. 1939) (teachers’ salary cases); 
Davis v. Schnell, 81 F. Supp. 872, 874, 881 (S. D. Ala. 1949), 
aff’d, 336 IT. S. 933; Brown v. Baskin, 78 F. Supp. 933, 935, 
942 (E. D. S. C. 1948), a ff’d, 174 F. 2d 391; Elmore v. Rice, 
72 F. Supp. 516, 517, 528 (E. D. S. C. 1947), aff’d, 165 F. 
2d 387, cert, denied, 333 U. S. 875, (voting cases); Dawson
v. Mayor and City Counsel of Baltimore,------ F. 2d --------
(C. A. 4th, decided March 4, 1955), reversing 123 F. Supp. 
193; Lopez v. Seccombe, 71 F. Supp. 769, 771, 772, (S. D. 
Cal. 1944) (public recreation cases).

Where the question has been litigated, however, it has 
been held that those entitled to benefits were all who were 
members of the class at time of entry of final judgment. 
National Hairdressers and Cosmetologists Association, Inc. 
v. Philad Co., 41 F. Supp. 701 (D. Del. 1941), a ff’d, 129



8

F. 2d 1020. Other federal courts in spurious class suits 
have allowed members of the class to participate in the 
fruits of a favorable decision by intervention after the 
decree has been rendered, or have indicated that inter­
vention at this time would be the proper procedure. York v. 
Guaranty Trust Co. of Neiv York, 143 F. 2d 503 (C. A. 2nd 
1944), rev’d on other grounds, 326 U. S. 99; Speed v. 
Transamerica Corp., 100 F. Supp. 461 (D. Del. 1951); 
Wilson v. City of Paducah, 100 F. Supp. 116 (W. D. Ky. 
1951); Tolliver v. Cadahy Packing Co., 39 F. Supp. 337 
(E. D. Tenn. 1941); Alabama Independent Service Station 
Assn. v. Shell Petroleum Corp., 28 F. Supp. 386 (N. D. 
Ala. 1939).

The court in York v. Guaranty Trust Co. of New York, 
supra, at page 529 approached the problem in practical 
and reasonable terms, saying:

Since, any suit under clause (3), a judgment will not 
be res judicata for or against those of the class who 
do not intervene, we suggest that if, after trial, the 
court finds against the defendant, appropriate steps 
be taken to notify all such note holders [other 
members of the class] to intervene (if they have not 
theretofore done so), judgment to be entered in 
favor only of those who do so within a reasonable 
time.

Moreover, still other federal courts have by way of dicta 
regarded a judgment in a spurious class action as benefiting 
all members of the class. Weeks v. Bareco OH Co., 125 F. 
2d 84, 91 (C. A. 7th 1941); Pennsylvania R. Co. v. United 
States, 111 F. Supp. 80, 90 (D. N. J. 1953); Pacific Fire 
Ins. Co. v. Reiner, 45 F. Supp. 703 (E. D. La. 1942). See also 
System Federation No. 91  v. Reed, 180 F. 2d 991 (C. A. 
6th 1950), where the court by means of a strained con­
struction of the character of the right enforced in a prior 
proceeding concluded that that suit was a “ true”  rather



9

than a “ spurious”  class suit and sustained a contempt 
proceedings instituted by an absentee member of the class 
on whose behalf the named plaintiffs had won a judgment 
enforcing seniority and promotional rights protected under 
the Railway Labor Act, 45 U. S. C. § 151 et seq.

Apart from these case authorities, the extention of the 
fruits of a favorable decree to unnamed members of the 
class would appear to follow from the mere existence of 
Rule 23(a)(3). If the rule were otherwise, what is denoted 
as a “ spurious”  class suit under Rule 23(a) would not 
be a class suit at all, but merely a device for permissive 
joinder. This is hardly a credible construction, for per­
missive joinder is amply provided for by Rule 20 of the 
Federal Rules. See Comment, 42 HI. L. R. 518, 523-524 
(1947); Kalven and Rosenfeld, supra, 8 U. of Chi. L. R. 
at 699. One commentator who contends that a “ spurious”  
class suit is really only a permissive joinder device, at­
tempts to explain its inclusion in the Federal Rules by sug­
gesting that it also enlarged federal jurisdiction by permit­
ting the intervention of parties who do not meet federal 
jurisdictional requirements. 3 Moore’s Federal Practice 
3448 (2nd ed. 1948.) But, apart from the fact that this 
would be a rather curious approach to enlarging federal 
jurisdiction, Rule 82 of the Federal Rules specifically states 
that the Rules shall not be construed to extend federal 
jurisdiction.

Logic does not support any interpretation which would 
emasculate the operation of Rule 23(a)(3). The rule pro­
vides for a situation where the “ parties are too numerous”  
to be brought before the court. But if all in the class 
must become parties of record before trial if they are to 
share in the judgment, the rule is reduced to saying that 
where it is impracticable to bring all the parties before 
the court, they must still all be brought before the court. 
In this connection it should be noted that Rule 23(c) pro­
vides that no class suit defined in 23(a) may be dismissed



10

or compromised without the approval of the court. There 
would be no need for such a provision if it were not con­
templated that there would be absentee members who 
require protection becau.se they would be affected by the 
decision. Finally, as previously noted, no policy can be 
advanced to support such a strained construction of the 
Rule. A defendant, to resist participation by members of 
the class cannot claim that he is not liable to them, but 
only that they should endure the inconvenience of bring­
ing a separate suit. Defendant is reduced to the claim 
that justice has been made too convenient and too com­
plete. See Kalven and Rosenfeld, supra, 8 U. of Chi. 
L. R. at 699-701.

Conclusion

As pointed out in the recent arguments before this 
Court, these are spurious class suits under subsection (3) 
of Rule 23(a). They were treated as class actions by 
the courts below and they were described as such in this 
Court’s opinion in Brown v. Board of Education, 347 U. S. 
483.

The foregoing considerations also establish that the 
class which the individual plaintiffs brought on behalf of 
themselves and others similarly situated is precisely defined 
a>s to its racial, educational, residential and familial 
characteristics, as to the declaratory and injunctive relief 
sought, and as to the nature of the right asserted. De­
fendants have had their day in court and there is no 
equitable consideration which would justify any further 
litigation with the members of the class who were not 
individually named. Moreover, there is ample support in 
both case authority and logic for the issuance of a judg­
ment or decree which will be beneficial to all members of 
the class involved in the individual cases.

The Negro children before the Court in these cases are 
entitled to public education on a non-segregated basis. The



11

only way the relief can be meaningful to them is to abolish 
the policy of using race as a criterion for assignment of 
students. Thus, the only effective decree would be one 
which will enjoin the use of race in the assignment of any 
pupils in the school districts involved.

Therefore, we submit that this Court should enter a 
decree which will order the defendants to cease the conduct 
held unlawful in Broum v. Board of Education, supra, and 
which will command them to discontinue use of race or 
color as a criterion for admission of students. Indeed, this 
is the only way that the rights of even the named plaintiffs 
can be protected.

Respectfully submitted,

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
LOUIS H. POLLAK,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.





13

APPENDIX

For the convenience of the Court, we are setting out in 
this appendix our suggestions as to the form of decree to 
be entered in these cases.

Form of Decree Suggested By Appellants

Judgment reversed and cause remanded to the District 
Court for proceedings not inconsistent with this Court’s 
opinion, and entry of a decree containing the following 
provisions:

(1) Article XI, section 7, of the Constitution of South 
Carolina, and section 5377 of the Code of Laws of South 
Carolina of 1942, and other legislative provisions of South 
Carolina requiring, directing or permitting defendants 
to maintain racial segregation in public schools in School 
District No. 1 of Clarendon County, South Carolina, are 
unconstitutional and of no force and effect;

(2) Defendants, their successors in office and their 
agents, employees and all other persons acting under 
their direction and supervision, are forthwith ordered 
to cease using race as a basis of determining admission, 
assignment or attendance in public schools in School Dis­
trict No. 1 of Clarendon County, South Carolina, so that 
at a time no later than the school term commencing in Sep­
tember, 1955, plaintiffs, and all others similarly situated, 
will be attending schools on a basis not involving race;

(3) Defendants are ordered to file with the District 
Court by July 15, 1955, for approval by August 15, 1955, a 
plan showing what changes they have made in the existing 
method of determining the public schools pupils attend so 
that race no longer will be used as a criterion;



14

(4) The District Court is to retain jurisdiction to make 
whatever further orders it deems appropriate to carry out 
the foregoing.

Suggested Decree to Be Entered if the Supreme Court 
Decides It Should Exercise Its Equity Powers to Permit 
An Effective Gradual Adjustment To Be Brought 
About From Existing Segregated Systems To Systems 

Not Based On Color Distinctions

Judgment reversed and cause remanded to the District 
Court for proceedings not inconsistent with this Court’s 
opinion, and the entry of a decree containing the following 
provisions:

(1) Article XI, section 7, of the Constitution of South 
Carolina and section 5377 of the Code of Laws of South 
Carolina of 1942 and other legislative provisions of South 
Carolina requiring, directing or permitting defendants 
to maintain racial segregation in public schools in School 
District No. 1 in Clarendon County, South Carolina are 
unconstitutional and of no force and effect;

(2) Defendants, their agents, employees, successors 
in office and all other persons acting under their direction 
and supervision are forthwith ordered to cease using race 
as a basis of determining admission, assignment and 
attendance in public schools in School District No. 1, Claren­
don County, South Carolina so that beginning the next 
school term, (i.e. September, 1955) plaintiffs and all others 
similarly situated will be attending school on a basis not 
involving race;



15

(3) Notwithstanding the foregoing if the defendants or 
other responsible officials by August 15, 1955,

(a) show the District Court that the transition to a 
school system not based on race or color distinctions in­
volves such administrative factors as would cause serious 
and substantial dislocation in the operation of public schools 
should admission beginning the next school term be 
ordered; and

(b) submit a plan which, after public hearing, the Dis­
trict Court finds

(i) will eliminate as soon as feasible but in no 
event later than September 1, 1956, racial segrega­
tion in the public schools presently subject to de­
fendants’ authority or control, in School District No. 
1, Clarendon County, South Carolina; and

(ii) will provide for an effective commencement 
of the actual transition (i.e., the admission of some 
Negroes to noil-segregated schools) by the beginning 
of the next school term (September 1, 1955),

the District Court may allow defendants additional time 
and make such orders as are necessary to permit the effec­
tuation of such a program.

(4) Defendants are ordered to make detailed periodic 
reports showing the progress made in carrying out the 
approved plan;

(5) The District Court under no circumstances will ex­
tend the time to effect actual transition to a school system 
not based on race or color distinctions bevond September, 
1956.







Supreme Printing Co., I nc.. 114 W orth Street, N. Y. 13, BEekman 3- 
49



S U P R E M E  CO U R T  OF T H E  U N I T E D  S T A T E S

OCTOBER TERM, 1951

N o .  4 3 6

OLIVER BROWN, MRS RICHARD LAWTON, MRS. 
SADIE EMMANUEL, ET AL.,

Appellants,
vs.

BOARD OF EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE  

DISTRICT OF KANSAS

STATEMENT AS TO JURISDICTION

C h a rle s  E. B ledsoe, 
C h a rle s  S cott ,
J o h n  S cott ,
J a c k  G reenberg , 
T hurgood  M a r s h a ll , 
R obert L. C arter , 

Counsel for Appellants.





INDEX

S u b je c t  I ndex

Page
Statement as to jurisdiction........................................  1

Opinion below ........................................................  1
Jurisdiction ............................................................ 2
Questions presented..............................................  2
Statutes involved ..................................................  2
Statement ...............................................................  2
The questions are substantial..............................  5

Appendix “ A ” — Opinion, findings of fact, conclu­
sions of law and decree of the United States Dis­
trict Court .................................................................. 17

Appendix “ B ” —Applicable statutes......................... 26

T able  of C ases C ited

Briggs v. Elliott, No. 273, October Term, 1951 (now
pending) ...................................................................... 5

Dominion Hotel v. Arizona, 294 U.S. 265................... 12
Gong Lum v. Rice, 275 U.S. 78....................................  5
Hirabayashi v. U.S., 320 U.S. 81................................... 12
Korematsu v. U.S., 323 U.S. 214................................... 12
McKissick v. Carmichael, 187 F. (2d) 649.................  10
McLaurin v. Board of Regents, 339 U.S. 637.............  2, 5
Oyama v. California, 332 U.S. 633..............................  12
Plessy v. Ferguson, 163 U.S. 537................................. 5
Rescue Army v. Municipal Court, 331 U.S. 549.........  10
Rice v. Arnold, 340 U.S. 848 (decided October 17,

1950) ...........................................................................  11
Shelley v. Kraemer, 334 U.S. 1 .........................  12
Skinner v. Oklahoma, 316 U.S. 535............................... 12
Sweatt v. Painter, 339 U.S. 629..................................... 5
Takahashi v. Fish and Game Commission, 334 U.S.

410 ................................................................................ 12
Wilson v. Board of Supervisors, 94 L. ed. 200.........  2

—8589



11 INDEX

S t atu tes  C ited
Page

“ American Divided” , Rose: Minority Group Rela­
tions in the United States, (1948)...........................  12

“ An American Dilemma”  Gunnar Mydral, Hayes,
New York, 1944 .......................................................... 8

Constitution of the United States, 14th Amendment. 12,15 
“ Development of Attitudes Towards Negroes,”  Eu­

gene Horowitz in Readings in Social Psychology,
Holt, 1947, pp. 561, 517..............................................  7

General Statutes of Kansas, 1949:
Section 12-713 ........................................................  14
Section 21-2424 ......................................................  14
Section 21-2461 ......................................................  14
Section 21-2462 ......................................................  14
Section 21-2463 ......................................................  14
Chapter 7-1724 ......................................................  2, 3,12
Section 76-307 ............................................................  13

‘ 1 Harlan Fiske Stone— Teacher, Scholar and Dean, ’ ’
Young B. Smith in Columbia Law Review, Vol.
XLVi, Sept. 1946 ......................................................  7

House Joint Resolution No. 1 of the House of Repre­
sentatives of the State of Kansas (L. 1949, Ch.
289, p. 253) ...........................................................   14

“ Main types and causes of discrimination”  (memo­
randum submitted by the Secretary-General, 
United Nations— Commission on Human Rights, 
Sub-Commission on Prevention of Discrimination 
and Protection of Minorities, Lake Success, New
York, p. 50) ................................................................ 6

“ Man’s Most Dangerous Myth— The Black & White 
of Rejections of Military Service,”  Montague-5
(1944) at 29......................................................  . . .  13

“ New Trends in the Investigation of Prejudice,”  
Annals o f ' the American Academy of Political
Science, 1946, p. 244....................................................  6

“ Post War Prospects of Equitable Educational Op­
portunities for Negroes”  in Race Relations and 
Human Relations, Fisk Univ. 1945, p. 86...............  6



INDEX 111

Page
“ Psychological Effects of Enforced Segregation, A 

Survey of Social Science Opinion,”  Max Deutscher 
and Isidor Chein, Journal of Psychology, 1948;
26; 259-287 .....................................‘ ......................... 6

“ Race Differences” , Klineberg, 343 (1935)...............  13
“ Theory and Problems of Social Psychology” , New 

York, David Krech and Richard S. Crutchfield, 
McGraw-Hill-1948, Chapters X II and X II I ...........  6

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

 c
o 

to
 t

o





S U P R E M E  C OURT  OF T H E  U N I T E D  S T A T E S

OCTOBER TERM, 1951

N o .  4 3 6

OLIVER BROWN, MRS RICHARD LAWTON, MRS. 
SADIE EMMANUEL, ET AL.,

vs.
Appellants,

BOARD OF EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF KANSAS

STATEMENT AS TO JURISDICTION

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

Opinion Below

The opinion of the United States District Court for the 
District of Kansas is not yet reported. A copy of the



opinion, findings of fact, conclusions of law and final decree 
are attached hereto as Appendix A.

Jurisdiction
The judgment of the district court was entered on August 

3, 1951. A petition for appeal is presented to the District 
Court herewith, to wit, on September 28, 1951. The juris­
diction of the Supreme Court to review this decision by 
direct appeal is conferred by Title 28, United States Code, 
Sections 1253 and 2101(b). The following decisions sustain 
the jurisdiction of the Supreme Court to review the judg­
ment on direct appeal in this case: McLaurin v. Board of 
Regents, 339 U. S. 637; Wilson v. Board of Supervisors, 
— U. S. —, 94 L. ed. (Ad. Op.) 200.

Questions Presented
1. Whether Chapter 72-1724 of the General Statutes of 

Kansas, 1949, is unconstitutional in that it gives to defend- 
ants-appellees the power to organize and maintain separate 
public elementary schools for the education of white and 
colored children in the City of Topeka, Kansas.

2. Whether after having shown that the maintenance of 
racially segregated elementary schools in Topeka, pursuant 
to Chapter 72-1724 of the General Statutes of Kansas, 1949, 
is harmful and deprives them of the benefits they would 
receive under a racially integrated school system, plaintiffs- 
appellants are necessarily entitled to the relief prayed for 
in their complaint.

Statutes Involved
Chapter 72-1724 of the General Statutes of Kansas, 1949, 

as set forth in Appendix B attached hereto.

Statement
Appellants are here seeking to enjoin appellees from 

maintaining separate public elementary schools for Negro



3

and white pupils in the City of Topeka, pursuant to au­
thority conferred by Chapter 72-1724 of the General Stat­
utes of Kansas, 1949. The asserted right to injunctive 
relief is based upon the unconstitutionality of Chapter 72- 
1724, in that the Fourteenth Amendment to the United 
States Constitution strips the state of power to either au­
thorize or require the maintenance of racially segregated 
public schools. A district court of three judges was con­
vened, as provided in Title 28, United States Code, Sections 
2281 and 2284, and on June 25, 26, 1951 a hearing on the 
merits took place.

The evidence there presented disclosed that the City of 
Topeka is divided into eighteen territories for school pur­
poses. One elementary school is maintained by appellees 
in each of these eighteen territories for the exclusive use of 
white children, and in addition four separate elementary 
schools are maintained for the exclusive use of Negro 
children. Negro children must attend one of the four segre­
gated schools maintained for them, even though they may 
live considerably closer to one of the schools maintained for 
white children. Segregation is enforced only in elementary 
schools which in Topeka ends with the completion of the 
sixth grade. After the sixth grade a student enters junior 
high school, which along with senior high schools, is oper­
ated as part of a racially integrated school system.

With respect to teacher qualifications, class size, teacher- 
pupil load and courses prescribed, there is little material 
difference' between the eighteen schools for white children 
and the four schools for colored children. Appellants intro­
duced evidence to show, however, that on the average the 
Negro schools were older, of lower insured value per class­
room and had inferior library holdings. Evidence was also 
introduced to show that Negro children, who lived close to 
Gage, State Street and Oakland schools, which were new,



4

luxurious, modern educational plants maintained for white 
children, were required, nonetheless, to travel a considerable 
distance in order to attend one of the Negro schools which 
were inferior to these in terms of physical facilities. Forty- 
five percent of the white children attended schools Avhich 
were newer than the newest Negro school, and only 14% 
attended schools older than the oldest Negro school. These 
differences in physical facilities were brought out in the 
testimony of Dr. Hugh Speer and Dr. James Buchanan who 
had made a survey of the schools on behalf of appellants.

Seven additional expert witnesses testified on behalf of 
appellants. In substance their testimony was that racial 
segregation for school purposes is unreasonable and arbi­
trary; that Negro children are relegated to an inferior 
status by virtue of being required to attend segregated 
schools, are confused and made personally insecure, and 
that the legally enforced isolation of Negro children in 
segregated public schools made it impossible for them to 
receive educational opportunities equal to those presently 
available to all other students.

Although the court below, in its findings of fact, found 
no material difference between the Negro and white schools 
with respect to physical facilities, it found that the segrega­
tion complained of has a detrimental effect upon colored 
children and that the “ impact is greater when it has the 
sanction of law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the Negro 
group. A sense of inferiority affects the motivation of a 
child to learn. Segregation with the sanction of law, there­
fore, has a tendency to retard the educational and mental 
development of Negro children, and to deprive them of some 
of the benefits they would receive in a racially integrated 
school system.”

The district court, on August 3,1951, entered a final order 
and decree denying appellants’ injunctive relief on the



grounds that Plessy v. Ferguson, 163 U. S. 537 and Gong 
Linn v. Rice, 275 U. S. 78 upneld the constitutionality of the 
statute in question and that these cases had not been over­
ruled by McLaurin v. Board of Regents, 339 U. S. 637 and 
Sweatt v. Painter, 339 U. S. 629. Appellants on direct 
appeal are now seeking a review of this judgment by the 
Supreme Court of the United States.

The Questions Are Substantial

The issues involved in this appeal are similar to those 
raised in Sweatt v. Painter, 339 U. S. 629; McLaurin v. 
Board of Regents, 339 U. S. 637 and in Briggs v. Elliott, 
now pending before the United States Supreme Court on 
direct appeal from the United States District Court for 
the Eastern District of South Carolina. The issues are 
of vital importance especially at this time because the 
preservation of strong democratic institutions necessarily 
depends upon the intelligence and enlightenment of our 
citizenry. When the educational and mental development 
of a portion of our population is retarded by state practices 
which violate the Constitution, it becomes impossible to 
fully muster the capabilities and energies of the country 
to meet whatever crises lie ahead.

1. We are here concerned with state power to impose 
racial segregation in the broad field of public education 
at the elementary school level. In the McLaurin and Sweatt 
cases the United States Supreme Court dealt with the per­
missible limits of such state power at the professional and 
graduate school level. The issues in this appeal, liow7- 
ever, raise questions of a greater importance and of more 
basic concern then the question of racial segregation in 
graduate and professional schools.

The sine qua non of education in a democratic society is 
the teaching of a belief in and loyalty to democratic ideals.



G

It is at the elementary or primary educational level that 
children, along with their acquisition of facts and figures, 
integrate and formulate basic ideas and attitudes about 
the society in which they live. When these early attitudes 
are born and fashioned within a segregated educational 
framework, students of both the majority and minority 
groups are not only limited in a full and complete inter­
change of ideas and responses, but are confronted and 
influenced by value judgments, sanctioned by their society 
which establishes qualitative distinctions on the basis of 
race. Education cannot be separated from the social 
environment in which the child lives. He cannot attend 
separate schools and learn the meaning of equality.1

One eminent authority in the field of educational segre­
gation  has summed up the role of the separate Negro 
school as follows:

“ The separate school is an instrument of social 
policy and a symbol of inferior status. ’ ’ 2

Segregated education, particularly at the elementary 
level, where the emotional aspects of learning are inex­
tricably tied up with the learning process itself, must and 
does have a definite and deleterious effect upon the Negro 
child.3 It is particularly true that when segregation exists

1 The Main Types and Causes o f Discrimination (Memorandum sub­
mitted by the Secretary-General, United Nations-Commission on Human 
Rights, Sub-Commission on Prevention o f Discrimination and Protection 
o f Minorities, Lake Success, New York, p. 50.

2 Charles H. Thompson, “ Post War Prospects of Equitable Educational 
Opportunities for Negroes”  in Race Relations and Human Relations, Fisk 
Univ. 1945, p. 86.

3 Max Deutscher and Isidor Chein, “ The Psychological Effects of En­
forced Segregation: A Survey of Social Science Opinion,”  Journal of 
Psychology, 1948; 26; 259-287; David Krech and Richard S. Crutchfield, 
Theory and Problems of Social Psychology, New York, McGraw-Hill, 
1948, Chapters X II and X III ; M. Radke “ New Trends in the Investiga­
tion of Prejudice,”  Annals of the American Academy of Political Science, 
1946, p. 244.



7

at the elementary level it is hard to distinguish between 
fact and fiction—the fiction, in this instance, being an ar­
bitrary classification on the basis of race. A recent study 
of the development of attitudes towards Negroes concludes 
that prejudice begins early in the life span and develops 
gradually, and that “ attitudes towards Negroes are now 
chiefly determined not by contact with Negroes, but by 
contact with prevalent attitudes towrard Negroes.” 4 

Appellants have demonstrated to the satisfaction of the 
court below that segregation at the elementary school level 
prejudices the Negro child in his pursuit of knowledge. 
It is common knowledge that the number of persons attend­
ing public elementary schools is far greater than that 
attending public graduate and professional schools. It 
logically follows, therefore, that the injuries which segre­
gation causes in the elementary grades is more far reach­
ing and devastating and affects more people than is the 
case with respect to graduate and professional education. 
It affects young children by creating prejudicial attitudes 
which by virtue of their extreme youth they can in no 
way identify.5 Since elementary education is absorbed 
during the formative years of a child’s life, it assumes a 
peculiar and more important role than education at any 
other level. It is true that most professions and occupa­
tional fields require skills and information that can only 
be acquired through higher and professional education, 
but it is not the skill or professional knowledge alone 
that makes a good doctor, lawyer, engineer, or teacher.6 
It is an integrated, intelligent and open-minded personality

4 Eugene Horowitiz, “ Development of Attitudes Towards Negroes,”  in 
Headings in Social Psychology, Holt, 1947, pp. 561, 517.

c op. cit.
8 Young B. Smith, Harlan Fiske Stone: Teacher Scholar and Dean, 

Col. Law Review, Vol. X LV I, Sept. 1946.



8

that can best benefit from education at any level. It is hard, 
if not impossible, to build a durable building- on a weak 
framework. The educational process is cumulative in 
nature, a person’s “ knowledge”  or “ education”  can never 
be separated from the total personality. If a young student 
can learn in a democracy and at the same time learn the 
significance of democracy, be must be able to do so freely— 
unhampered by such arbitrary and limiting factors as 
distinctions on the basis of race.7 Negro children cannot 
be afforded the opportunity to develop fully their intelli­
gence and their mental capabilities if their training is 
circumscribed and their development stunted by state prac­
tices which, at the very outset of their search for education, 
places them at a disadvantage with children belonging 
to other racial groups.

2. Having established that racial segregation in the public 
elementary schools of Topeka bad a detrimental effect 
upon appellants and other Negro students, affected their 
motivation to learn, their educational and mental develop­
ment, and deprived them of benefits which would have 
been forthcoming in a racially integrated school system, 
appellants were entitled to the relief prayed for in their 
complaint under the rationale of the Sweatt and McLciurin 
cases. In those cases the United States Supreme Court 
found that equal educational opportunities in law and in 
graduate training could not be obtained in a racially segre­
gated educational system.

One of the chief considerations, which led the court 
to conclude that equal educational opportunities were not 
offered at the segregated Negro law school in the Sweatt 
case, was that members of racial groups comprising 85%

t G unnar M yrdal, An American Dilemma, H ayes, N ew  Y o rk , 1944  
(p a ssim ).



9

of the population of Texas were excluded from its student 
body. The court said, at page 634:

. . With such a substantial and significant
segment of the population excluded, we cannot con­
clude that the education offered petitioner is substan­
tially equal to that he would receive if admitted to the 
University of Texas law school.”

Thus, without regard to physical facilities, the opinion 
in the Siveatt case means that equal educational oppor­
tunities in law cannot be afforded a Negro applicant where 
he is required to take his training in isolation from law 
students who are representative of a “ substantial and 
significant segment of the population. ’ ’ It must have been 
felt in that case, we submit, that a student who obtains an 
education under circumstances such as to require daily 
contact and competition with members of racial groups 
comprising the dominant and more advantaged majority 
would necessarily receive a better education than a student 
who must get his training under conditions which would 
limit him to daily contact and competition from members 
of a single racial group comprising the state’s most 
disadvantaged minority.

In the McLaurin case, although no question of the in­
equality in physical facilities could have been raised, the 
court found the state, in requiring McLaurin to sit apart 
from other students in the classrooms, cafeteria and library 
solely because of race, handicapped him in his pursuit of 
effective graduate instruction. “ Such restrictions,”  said 
the court at page 641, “ impair and inhibit his ability to 
study, to engage in discussions and to exchange views with 
other students and, in general, to learn his profession.”

We take these two decisions to mean that any form of 
state imposed racial segregation at the graduate and pro­
fessional school levels of state universities contravenes



10

the Fourteenth Amendment because such restrictions handi­
cap the applicant in his pursuit of knowledge and neces­
sarily deprive him of equal educational opportunities. This 
analysis is confirmed by Wilson v. Board of Supervisors, 
supra, and McKissick v. Carmichael, 187 F. 2d 949 (CCA 
4th 1951) cert. den. — U.S. —, June 4, 1951.

In the McLaurin case, moreover, the court recognized 
that not only would their decision affect McLaurin per­
sonally but that the quality of his education had more 
far-reaching implications. The court said, at page 641, 
that as a trainer of others,

“  [t]liose who will come under his guidance and 
influence must be directly affected by the education 
he receives. Their own education and development 
will necessarily suffer to the extent that his training 
is unequal to that of his classmates.”

Thus the court was not only concerned with the question of 
McLaurin’s personal right to equal educational oppor­
tunities but was aware that his inferior training would 
necessarily mean inferior training for his students. Now, 
in this case, we are directly confronted with the question 
with which the Court was indirectly concerned in the 
McLaurin case.

At the outset of the opinion in the Sweatt case, at page 
631, it was made clear that the court was deciding only the 
question of the power of the state to distinguish between 
students of different races in professional and graduate 
education of state universities. This statement meant no 
more than that the court was deciding the constitutional 
question within the narrowest limits essential to the dis­
position of the case at hand. This is not new but normal 
Supreme Court procedure, Rescue Army v. Municipal Court, 
331 U. S. 549, 568-575, and cases cited. The assertion by the 
Court that it was following this practice and hence deciding



11

only the constitutionality of state-imposed segregation at 
the graduate and professional school levels cannot properly 
l)o interpreted to mean that segregation at the elementary 
school level is thereby validated. Nor did the Court’s re­
fusal to reexamine Plessy v. Ferguson infer that the “ sepa­
rate but equal”  doctrine of that case was approved as the 
yardstick to determine constitutionality of racial segrega­
tion in areas other than professional and graduate educa­
tion. We take this refusal to mean merely that the Court 
had found segregation unconstitutional at the graduate and 
professional school levels and, therefore, deemed it unneces­
sary to meet the question of whether Plessy v. Ferguson 
had general application. The Court, without first having 
facts before it, was in no position to say that segregation in 
areas other than graduate and professional education was a 
denial of equal protection of the laws. Where the facts 
show such denial, the Court, we submit, would strike down 
segregation as was done in the McLaurin and Sweatt cases.

Attention is directed to Rice v. Arnold, 340 U. S. 848, dec. 
Oct. 17,1950. That case was reversed and remanded to the 
Supreme Court of Florida for reexamination in the light of 
the Sweatt and McLaurin cases. It is true that this case 
may not necessarily mean that racial segregation on public 
golf courses is considered by the Supreme Court as a denial 
of equal protection of the laws. Rice v. Arnold does con­
clusively indicate, we submit, that the Court’s statement in 
the Sweatt case with respect to Plessy v. Ferguson was not 
intended.to imply that the “ separate but equal”  formula 
was to be used to dispose of questions involving racial seg- 
gation except for graduate and professional schools. More­
over, Rice v. Arnold indicates that the constitutionality of 
state sanctioned racial segregation must now be deter­
mined by the courts on the basis of an inquiry into its actual 
effect as was done in the McLaurin and Sweatt cases. Heic 
the district court made such an inquiry and concluded that



12

the effect of racial segregation in this case was as perni­
cious as it had been found to be in the McLcmrin and Sweatt 
cases. Having determined, in fact, that equal educational 
opportunities were not afforded in the segregated schools 
of Topeka, the court, in the light of the McLaurin and 
Sweatt cases was obligated to hold that Chapter 72-1724 
was unconstitutional and that appellees could not continue 
to maintain separate elementary schools for Negroes and 
whites.

3. Chapter 72-1724 of General Statutes of Kansas, 1949, 
is clearly an arbitrary and unreasonable exercise of state 
poAver in violation of the guarantees of the Fourteenth 
Amendment for the following reasons:

A. This statute authorizes governmental classifications 
and distinctions based upon race for school purposes. In 
order for such classifications and distinctions to conform 
Avith the requirements of the Federal Constitution, they 
must be based upon a real or substantial difference Avliich 
has pertinence to a legitimate legislative objective. Do­
minion Hotel v. Arizona, 294 U. S. 265; Skinner v. Okla­
homa, 316 IT. S. 535. This statute cannot be sustained under 
this constitutional yardstick. Certainly, the statute cannot 
be sustained if based upon race alone. See Hirabayashi v. 
United States, 320 U. S. 81, 100; Korematsu v. United 
States, 323 U. S. 214, 216; Takahashi v. Fish and Game 
Commission, 334 U. S. 410, 420; Oyama v. California, 332 
U. S. 633, 640; Shelley v. Kraemer, 334 U. S. 1, 21, 23.

There is no difference between Negro children and white 
chilren Avith respect to ability to learn or to absorb knoAvl- 
edge based upon the racial factor alone. WhateAmr differ­
ences exist in this regard are individual and not racial. 
This is an uncontroverted scientific fact. See: Testimony 
of Horace B. English. See also: Rose, America Divided: 
Minority Group Relations in the United States (1948);



13

Montague, Man’s Most Dangerous Myth— The Black & 
White of Rejections for Military Service, 5 (1944) at 29; 
Klineberg, Race Differences, 343 (1935). Thus, the statute 
cannot be sustained if based upon a mistaken assumption 
that such racial differences do in fact exist.

This statute authorizes racial segregation in the ele­
mentary grades only. In Topeka, elementary school ends 
with completion of the sixth grade. Thereafter, at the 
junior and senior high school level, the Topeka school sys­
tem is racially integrated. Moreover, the segregation au­
thorized can only be imposed in cities of the first class. 
Thus, whatever the basis for the classification, about which 
appellants can only wildly speculate, if not based upon race 
or ability to learn and absorb knowledge, it must be some 
factor which is: (1) present in the first six grades of public 
schools in Kansas, but not present thereafter, and (2) it 
must be present in some communities in Kansas, but not in 
others. This is impossible. In short, the statute cannot be 
sustained under the constitutional formula, as being based 
on a real and substantial difference which has pertinence to 
a legitimate legislative objective to which state classifica­
tions and distinctions must adhere.

B. This statute cannot be said to sustain an important 
state interest particularly in view of the fact that Kansas 
has a history of freedom and equality, and legally enforced 
segregation is contrary to its deep-rooted traditions and 
customs.

The General Statutes of Kansas, Annotated, (Corrick) 
1949, outlaw discrimination in a wide variety of circum­
stances.8 Section 76-307, which applies to schools of arts, 
engineering, pharmacy, law and medicine, states:

“ No person shall be debarred from membership of 
the university on account of age, race, sex, or religion. ’ ’

8 The statutes cited herein are set forth  in A p p en d ix  B  hereto.



14

Section 12-713, dealing with planning, zoning and city 
planning commissions, provided:

“ Nothing herein contained shall be construed as 
authorizing the governing body to discriminate against 
any person by reason of race or color.’ ’

Section 21-2424 makes it a misdemeanor punishable by a 
fine of $10 to $10,000 and makes the misdemeanant liable to 
a suit for damages, for any person to make a distinction on 
account of race, color or previous condition of servitude in 
a state university, college or other school of public instruc­
tion; in a hotel, boarding house, place of entertainment or 
amusement for which a license is required by municipal 
authorities of the state; or in a steamboat, railroad, stage­
coach, omnibus, streetcar, or other means of public car­
riage.

Section 21-2461 provides that no citizen of the United 
States shall be refused employment in any capacity on the 
ground of race or color nor be discriminated against in any 
manner in connection with any public work by or on behalf 
of the state or any governmental subdivision thereof.

Section 21-2462 provides that the act of which Section 
21-2461 is a part shall be included in all contracts made by 
governmental subdivisions which involve the employment 
of laborers and shall apply to all contractors and subcon­
tractors.

Section 21-2463 provides that any officer violating the 
latter two sections shall be punishable by a fine of $50- 
$1,000 and by imprisonment of not more than six months 
or both.

House Joint Resolution No. 1 of the House of Representa­
tives of the State of Kansas [L. 1949, Ch. 289, p. 253] states 
that:



1 5

. . The state of Kansas is traditionally and his­
torically opposed to discrimination against any of its 
citizens in employment; and

. . It is the public policy of this state that all of 
the citizens of this state are entitled to work without 
restrictions or limitations based on race, religion, creed 
or national origin; . .

The final and most telling statutory provision in the laws 
of the State of Kansas is the very statute here under attack, 
which, by its very terms, recognizes that the distinction 
herein practiced is what the Fourteenth Amendment was 
designed to destroy: discrimination. That statute states:

“ No discrimination on account of color shall be 
made in high schools except as provided herein.”

By plain meaning and context, it is clear that this statute 
recognized that segregation is discrimination.

t



16

Conclusion

The importance of the issues raised, the mistaken notion 
of the district court that Plessy v. Ferguson and Gong hum 
v. Rice required them to sustain the constitutionality of 
Chapter 72-1724 of the General Statutes of Kansas, 1949, in 
spite of their own findings that segregated schools in 
Topeka were detrimental to appellants and to Negro chil­
dren generally, the arbitrary and unreasonable nature of 
the statute and the utter lack of any real state interest in 
maintaining racially segregated elementary schools in Kan­
sas where legally enforced racial segregation is an anomaly, 
all present compelling reasons which warrant review of this 
judgment on appeal by the United States Supreme Court.

Respectfully submitted,

C harles E. B ledsoe,
Charles S cott,
J oh n  S cott,
J ack Greenberg,
T hurgood M arshall,

(Signed) R obert L. Carter,
20 West 40th Street,

New York 18, Neiv York, 
Counsel for Plaintiffs-Appellants.



17

APPENDIX “A ”

Opinion  of th e  Court

H u x m an , Circuit Judge, delivered the opinion of the Court.
Chapter 72-1724 of the General Statutes of Kansas, 1949, 

relating to public schools in cities of the first class, so far 
as material, authorizes such cities to organize and maintain 
separate schools for the education of white and colored 
children in the grades below the high school grades. Pur­
suant to this authority, the City of Topeka, Kansas, a city of 
the first class, has established and maintains a segregated 
system of schools for the first six grades. It has established 
and maintains in the Topeka School District eighteen 
schools for white students and four schools for colored 
students.

The adult plaintiffs instituted this action for themselves, 
their minor children plaintiffs, and all other persons simi­
larly situated for an interlocutory injunction, a permanent 
injunction, restraining the enforcement, operation and exe­
cution of the state statute and the segregation instituted 
thereunder by the school authorities of the City of Topeka 
and for a declaratory judgment declaring unconstitutional 
the state statute and the segregation set up thereunder by 
the school authorities of the City of Topeka.

As against the school district of Topeka they contend that 
the opportunities provided for the infant plaintiffs in the 
separate all negro schools are inferior to those provided 
white children in the all white schools; that the respects in 
which these opportunities are inferior include the physical 
facilities, curricula, teaching resources, student personnel 
services as well as all other services. As against both the 
state and the school district, they contend that apart from 
all other factors segregation in itself constitutes an inferi­
ority in educational opportunities offered to negroes and 
that all of this is in violation of due process guaranteed them 
by the Fourteenth Amendment to the United States Consti­
tution. In their answer both the state and the school district 
defend the constitutionality of the state law and in addition



18

the school district defends the segregation in its schools 
instituted thereunder.

We have found as a fact that the physical facilities, the 
curricula, courses of study, qualification of and quality of 
teachers, as well as other educational facilities in the two 
sets of schools are comparable. It is obvious that absolute 
equality of physical facilities is impossible of attainment in 
buildings that are erected at different times. So also abso­
lute equality of subjects taught is impossible of maintenance 
when teachers are permitted to select books of their own 
choosing to use in teaching in addition to the prescribed 
courses of study. It is without dispute that the prescribed 
courses of study are identical in all of the Topeka Schools 
and that there is no discrimination in this respect. It is 
also clear in the record that the educational qualifications 
of the teachers in the colored schools are equal to those in 
the white schools and that in all other respects the educa­
tional facilities and services are comparable. It is obvious 
from the fact that there are only four colored schools as 
against eighteen white schools in the Topeka School Dis­
trict, that colored children in many instances are required to 
travel much greater distances than they would be required 
to travel could they attend a white school, and are required 
to travel much greater distances than white children are 
required to travel. The evidence, however, establishes that 
the school district transports colored children to and from 
school free of charge. No such service is furnished to white 
children. We conclude that in the maintenance and opera­
tion of the schools there is no willful, intentional or sub­
stantial discrimination in the matters referred to above 
between the colored and white schools. In fact, while plain­
tiffs ’ attorneys have not abandoned this contention, they 
did not give it great emphasis in their presentation before 
the court. They relied primarily upon the contention that 
segregation in and of itself without more violates their 
rights guaranteed by the Fourteenth Amendment.

This contention poses a question not free from difficulty. 
As a subordinate court in the federal judicial system, we 
seek the answer to this constitutional question in the deci­
sions of the Supreme Court when it has spoken on the sub­



1 9

ject and do not substitute our own views for the declared 
law by the Supreme Court. The difficult question as always 
is to analyze the decisions and seek to ascertain the trend 
as revealed by the later decisions.

There are a great number of cases, both federal and state, 
that have dealt with the many phases of segregation. Since 
the question involves a construction and interpretation of 
the federal Constitution and the pronouncements of the 
Supreme Court, we will consider only those cases by the 
Supreme Court with respect to segregation in the schools. 
In the early case of Plessv v. Ferguson, 163 U. S. 537, the 
Supreme Court said:

“ The object of the amendment was undoubtedly to 
enforce the absolute equality of the two races before 
the law, but in the nature of things it could not have 
been intended to abolish distinctions based upon color, 
or to enforce social, as distinguished from political 
equality, or a commingling of the two races upon terms 
unsatisfactory to either. Laws permitting, and even 
requiring, their separation in places where they are 
liable to brought into contact do not necessarily imply 
the inferiority of either race to the other, and have been 
generally, if not universally, recognized as within the 
competency of the state legislatures in the exercise of 
their police power. The most -common instance of this 
is connected with the establishment of separate schools 
for white and colored children, which has been held to 
be a valid exercise of the legislative power even by 
courts of States where the political rights of the colored 
race have been longest and most earnestly enforced.”

It is true as contended by plaintiffs that the Plessy case 
involved transportation and that the above quoted state­
ment relating to schools was not essential to the decision of 
the question before the court and was therefore somewhat 
in the nature of dicta. But that the statement is considered 
more than dicta is evidenced by the treatment accorded it 
by those seeking to strike down segregation as well as by 
statements in subsequent decisions of the Supreme Coui’t. 
On numerous occasions the Supreme Court has been asked



20

to overrule the Plessy case. This the Supreme Court has 
refused to do, on the sole ground that a decision of the ques­
tion was not necessary to a disposal of the controversy 
presented. In the late case of Sweatt v. Painter, 339 U. S. 
629, the Supreme Court again refused to review the Plessy 
case. The Court said:

“ Nor need we reach petitioner’s contention that 
Plessy v. Ferguson should be reexamined in the light 
of contemporary knowledge respecting the purposes of 
the Fourteenth Amendment and the effects of racial 
segregation. ’ ’

Gong Lum v. Rice, 275 U. S. 78, was a grade school segre­
gation case. It involved the segregation law of Mississippi. 
Gong Lum Avas a Chinese child and, because of color, was 
required to attend the separate schools provided for colored 
children. The opinion of the court assumes that the educa­
tional facilities in the colored schools were adequate and 
equal to those of the white schools. Thus the court said: 
“ The question here is whether a Chinese citizen of the 
United States is denied equal protection of the laws when 
he is classed among the colored races and furnished facili­
ties for education equal to that offered to all, whether white, 
brown, yellow or black.”  In addition to numerous state 
decisions on the subject, the Supreme Court in support of 
its conclusions cited Plessy v. Ferguson, supra. The Court 
also pointed out that the question was the same no matter 
what the color of the class that was required to attend 
separate schools. Thus the Court said: Most of the cases 
cited arose, it is true, over the establishment of separate 
schools as between white pupils and black pupils, but we 
cannot think that the question is any different or that any 
different result can be reached, assuming the cases above 
cited to be rightly decided, where the issue is as between 
white pupils and the pupils of the yellow race. ’ ’ The court 
held that the question of segregation was within the discre­
tion of the state in regulating its public schools and did not 
conflict with the Fourteenth Amendment.

It is vigorously argued and not without some basis there­
for that the later decisions of the Supreme Court in Me-



21

Laurin v. Oklahoma, 339 U. S. 637, and Sweatt v. Painter, 
339 U. S. 629, show a trend away from the Plessy and Lum 
cases. McLaurin v. Oklahoma arose under the segregation 
laws of Oklahoma. McLaurin, a colored student, applied 
for admission to the University of Oklahoma in order to 
pursue studies leading to a doctorate degree in education. 
He was denied admission solely because he was a negro. 
After litigation in the courts, which need not be reviewed 
herein, the legislature amended the statute permitting the 
admission of colored students to institutions of higher 
learning attended by white students, but providing that such 
instruction should be given on a segregated basis; that the 
instruction be given in separate class rooms or at separate 
times. In compliance with this statute McLaurin was ad­
mitted to the university but was required to sit at a separate 
desk in the ante room adjoining the class room ; to sit at a 
designated desk on the mezzanine floor of the library; and 
to sit at a designated table and eat at a different time from 
the other students in the school cafeteria. These restric­
tions were held to violate his rights under the federal Con­
stitution. The Supreme Court held that such treatment 
handicapped the student in his pursuit of effective graduate 
instruction.9

9 The court sa id : “ Our society grows increasingly com plex, and our 
need fo r  trained leaders increases correspondingly. A p p ellan t’s case 
represents, perhaps, the epitom e o f that need, fo r  he is attem pting to 
obtain an advanced degree in education, to become, by definition, a leader 
and trainer o f  others. Those who will come under his guidance and 
influence m ust be directly alfected by the education he received. Their  
own education and development will necessarily suffer to the extent that 
his training is unequal to that o f his classmates. State im posed restric­
tions which produce such inequalities cannot be sustained.’ ’

“ It  m ay be argued that appellant will be in no better position when 
these restrictions are removed, fo r  he m ay still be set apart by his fellow  
students. This we think irrelevant. There is a vast difference— a Con­
stitutional difference-— between restrictions im posed by the state which 
prohibit the intellectual com m ingling o f students, and the refusal o f  
individuals to commingle where the state presents no such bar. * * * 
having been adm itted to a state supported graduate school, [he] must 
receive the same treatm ent at the hands o f the state as students o f  other 
races.”



22

In Sweatt v. Painter, 339 U.S. 629, petitioner, a colored 
student, filed an application for admission to the Univer­
sity of Texas Law School. His application was rejected 
solely on the ground that he was a negro. In its opinion 
the Supreme Court stressed the educational benefits from 
commingling with white students. The court concluded 
by stating: “ We cannot conclude that the education offered 
petitioner in a separate school is substantially equal to 
that which he would receive if admitted to the University 
of Texas Law School.’ ’ If segregation within a school 
as in the McLaurin ease is a denial of due process, it is 
difficult to see why segregation in separate schools would 
not result in the same denial. Or if the denial of the 
right to commingle with the majority group in higher 
institutions of learning as in the Sweatt case and gain 
the educational advantages resulting therefrom, is lack 
of due process, it is difficult to see why such denial would 
not result in the same lack of due process if practiced in 
the lower grades.

It must however be remembered that in both of these 
cases the Supreme Court made it clear that it was con­
fining itself to answering the one specific question, namely: 
“ To what extent does the equal protection clause limit 
the power of a state to distinguish between students of 
different races in professional and graduate education in 
a state university?” , and that the Supreme Court refused 
to review the Plessy case because that question was not 
essential to a decision of the controversy in the case.

We are accordingly of the view that the Plessy and Lum 
cases, supra, have not been overruled and that they still 
presently are authority for the maintenance of a segregated 
school system in the lower grades.

The prayer for relief will be denied and judgment will 
be entered for defendants for costs.

Entered August 3, 1951.



23

F indings of F act

I

This is a class action in which plaintiffs seek a decree, 
declaring Section 72-1724 of the General Statutes of Kansas 
1949 to be unconstitutional, insofar as it empowers the 
Board of Education of the City of Topeka “ to organize 
and maintain separate schools for the education of white 
and colored children”  and an injunction restraining the 
enforcement, operation and execution of that portion of 
the statute and of the segregation instituted thereunder 
by the School Board.

II

This suit arises under the Constitution of the United 
States and involves more than $3,000 exclusive of interest 
and costs. It is also a civil action to redress an alleged 
deprivation, under color of State law, of a right, privilege 
or immunity secured by the Constitution of the United 
States providing for equal rights of citizens and to have 
the court declare the rights and other legal relations of 
the interested parties. The Court has jurisdiction of the 
subject matter and of the parties to the action.

III

Pursuant to statutory authority contained in Section 
72-1724 of the General Statutes of Kansas 1949, the City 
of Topeka, Kansas, a city of the first class, has established 
and maintains a segregated system for the first six grades. 
It has established and maintains iri the Topeka School Dis­
trict, eighteen schools for white children and four for 
colored children, the latter being located in neighborhoods 
where the population is predominantly colored. The City 
of Topeka is one school district. The colored children 
may attend any one of the four schools established for 
them, the choice being made either by the children or by 
their parents.



24

IV
There is no material difference in the physical facilities 

in the colored schools and in the white schools and such 
facilities in the colored schools are not inferior in any 
material respect to those in the white schools.

V
The educational qualifications of the teachers and the 

quality of instruction in the colored schools are not inferior 
to and are comparable to those of the white schools.

VI
The courses of study prescribed by the State law are 

taught in both the colored schools and in the white schools. 
The prescribed courses of study are identical in both 
classes of schools.

VII
Transportation to and from school is furnished colored 

children in the segregated schools without cost to the 
children or to their parents. No such transportation is 
furnished to the white children in the segregated schools.

VIII
Segregation of white and colored children in public 

schools has a detrimental effect upon the colored children. 
The impact is greater when it has the sanction of the law; 
for the policy of separating the races is usually interpreted 
as denoting the inferiority of the negro group. A sense of 
inferiority affects the motivation of a child to learn. Segre­
gation with the sanction of law, therefore, has a tendency to 
retain the educational and mental development of negro 
children and to deprive them of some of the benefits they 
would receive in a racial integrated school system.

IX
The court finds as facts the stipulated facts and those 

agreed upon by counsel at the pre-trial and during the 
course of the trial.



25

Conclusions of Law 

I

This court has jurisdiction of the subject matter and of 
the parties to the action.10

II

We conclude that no discrimination is practiced against 
plaintiffs in the colored schools set apart for them because 
of the nature of the physical characteristics of the build­
ings, the equipment, the curricula, quality of instructors 
and instruction or school services furnished and that they 
are denied no constitutional rights or privileges by reason 
of any of these matters.

III

Plessy v. Ferguson, 163 U.S. 537, and Gong Lum v. Rice, 
275 U.S. 78, upholds the constitutionality of a legally segre­
gated school system in the lower grades and no denial of due 
process results from the maintenance of such a segregated 
system of schools absent discrimination in the maintenance 
of the segregated schools. We conclude that the above cited 
cases have not been overruled by the later cases of Mc- 
Laurin v. Oklahoma, 339 U.S. 637, and Sweatt v. Painter, 
339 U.S. 629.

IV

The only question in the case under the record is whether 
legal segregation in and of itself without more constitutes 
denial of due process. We are of the view that under the 
above decisions of the Supreme Court the answer must be 
in the negative. We accordingly conclude that plaintiffs 
have suffered no denial of due process by virtue of the man­
ner in which the segregated school system of Topeka, Kan­

10 Title 28 U.S.C. § 1331; idem §1343; idem Ch. 151. 
Title 8 U.S.C. Ch. 3. Title 28 U.S.C. Ch. 155.



2G

sas, is being operated. The relief sought is therefore de­
nied. Judgment will be entered for defendants for costs.

Entered August 3, 1951.

W alter A . H u x m a n ,
Circuit Judge; 

A rthur  J. M ellott, 
Chief District Judge; 

D elmas C. H ill ,
District Judge.

Decree
Now, on this 3rd day of August, 1951 this cause comes 

regularly on for hearing before the undersigned Judges, 
constituting a three-judge court duly convened pursuant to 
the provisions of Title 28 U.S.C. 2281 and 2284.

The Court has heretofore filed its Findings of Fact and 
Conclusions of Law together with an opinion and has held 
as a matter of law that the plaintiffs have failed to prove 
they are entitled to the relief demanded.

Now, T herefore, I t I s by  th e  Court, considered, ordered, 
adjudged and decreed that judgment be and it hereby is 
entered in favor of the defendants.

W alter A. H u x m a x ,
Circuit Judge;

A rthur  J. M ellott,
Chief District Judge;

D elmas C. H ill ,
District Judge.

Entered August 3, 1951.

APPENDIX “B”

General Statutes of Kansas, 1949
72-1724—Public Schools in Cities of First Class.—The 

board of education shall have power to elect their own 
officers, make all necessary rules for the government of 
the schools of such city under its charge and control and of 
the board, subject to the provisions of this act and the laws



of this state; to organize and maintain separate schools 
for the education of white and colored children, including 
the high schools in Kansas City, Kan.; no discrimination 
on account of color shall be made in high schools except 
as provided herein; to exercise the sole control over the 
public schools and school property of such city; and shall 
have the power to establish a high school or high schools 
in connection with manual training and instruction or other­
wise, and to maintain the same as a part of the public-school 
system of said city.”

76-307—Tuition and fees; persons not debarred on ac­
count of age, race, sex or religion.— . . . No person shall 
be debarred from membership of the university on account 
of age, race, sex, or religion.

12-713—Race discriminations.—Nothing herein contained 
shall be construed as authorizing the governing body to 
discriminate against any person by reason of race or color.

21-2424—Denying civil rights on account of race or color; 
penalty—That if any of the regents or trustees of any state 
university, college, or other school of public instruction, 
or the state superintendent, or the owner or owners, agents, 
trustees or managers in charge of any inn, hotel or board­
ing house, or any place of entertainment or amusement for 
which a license is required by any of the municipal authori­
ties of this state, or the owner or owners or person or 
persons in charge of any steamboat, railroad, stage coach, 
omnibus, streetcar, or any other means of public carriage 
for persons or freight within the state, shall make any 
distinction on account of race, color, or previous condition 
of servitude, the person so offending shall be deemed guilty 
of a misdemeanor, and upon conviction .thereof in any 
court of competent jurisdiction shall be fined in any sum 
not less than ten ($10.00) nor more than one thousand 
($1,000.00) dollars, and shall also be liable to damages in 
any court of competent jurisdiction to the person or persons 
injured thereby.

21-2461—Denying public work employment on account of 
race or color.—No person a citizen in the United States

27



28

shall be refused or denied employment in any capacity on 
the ground of race or color, nor be discriminated against in 
any manner by reason thereof, in connection with any 
public work, or with the contracting for or the performance 
of any work, labor or service of any kind on any public work 
by or on behalf of the state of Kansas, or of any depart­
ment, bureau, commission, board or official thereof, or by 
or on behalf of any county, city, township, school district 
or other municipality of said state.

21-2462—The provisions of this act shall apply to and 
become a part of any contract hereafter made by or on 
behalf of the state, or of any department, bureau, commis­
sion, board or official thereof, or by or on behalf of any 
county, city, township, school district, or other municipality 
of said state, with any corporation, association or person 
or persons, which may involve the employment of laborers, 
workmen, or mechanics on any public work; and shall apply 
to contractors, sub-contractors, or other persons doing or 
contracting to do the whole or a part of any public work 
contemplated by said contract.

21-2463—Any officer of the state of Kansas or of any 
county, city, township, school district, or other municipality, 
or any person acting under or for such officer, or any con­
tractor, sub-contractor, or other person violating the pro­
visions of this act shall for each offense be punished by fine 
of not less than fifty ($50.00) dollars nor more than one 
thousand ($1,000.00) dollars, or by imprisonment of not 
more than six (6) months or hv both fine and imprisonment.

House Joint Resolution No. 1—Approved April 5, 1949

A joint Resolution creating a temporary commission to 
study and make a report on acts of employment discrimina­
tion against citizens because of race, creed, color, religion 
or national origin, prescribing its powers and duties and 
making appropriations therefor.

Whereas, It has been brought to the attention of the 
legislature of the State of Kansas that probable cause exists 
for the belief that acts of discrimination in employment are



29

being perpetrated against some of the citizens of the United 
States because of race, creed, color, religion or national 
origin; and

Whereas, The state of Kansas is traditionally and histori­
cally opposed to discrimination against any of its citizens 
in employment; and

Whereas, It is the public policy of this state that all of 
the citizens of this state are entitled to work without re­
strictions or limitations based on race, religion, creed or 
national origin; and

Whereas,The legislature does not have sufficient informa­
tion upon which to enact adequate and proper laws and 
there is a difference of opinion as to whether the alleged 
discriminatory employment conditions actually exist: Now, 
therefore

Be it resolved by the House of Representatives of the State 
of Kansas, the Senate agreeing thereto:

§ 1. There is hereby created a temporary commission, 
hereinafter referred to as the commission, to be known as 
the “ Kansas commission against employment discrimina­
tion”  consisting of five (5) members to be appointed by the 
governor.

§ 2. The commission shall organize and elect a chairman, 
vice-chairman and secretary on or before June 1, 1949, and 
is hereby authorized to hold such meeting at such times and 
places within this state as may be necessary to carry out 
the provisions of this resolution. The commission shall 
complete its duties as speedily as possible and shall submit 
its report to the governor and to the members of the Kansas 
legislative council on or before October 15, 1940.

§ 3. The commission shall have full power and authority 
to receive and investigate complaints and to hold hearings 
relative to alleged discrimination in employment of persons 
because of race, creed, color or national origin.

§ 4. The commission is hereby authorized to employ such 
clerical and other assistants as may be necessary to enable



30

it to properly carry out the provisions of this resolution 
and to fix their compensation.

§ 5. The members of the commission shall receive as com­
pensation for their services the sum of fifteen dollars ($15) 
per diem and their actual and necessary expenses for time 
actually spent in carrying out the provisions of this resolu­
tion: Provided, That in no case shall any member receive 
more than a total of five hundred dollars ($500) as per 
diem allowance.

§ 6. The commission shall have all the powers of the legis­
lative committee as provided by law, and shall have power 
to do all things necessary to carry out the intent and 
purposes of this resolution and the preamble thereto.

§ 7. There is hereby appropriated to the Kansas com­
mission against discrimination, out of any moneys in the 
state treasury not otherwise appropriated, the sum of five 
hundred dollars ($500) for the fiscal year ending June 30,
1949, and the sum of three thousand five hundred dollars 
($3,500) for the fiscal year ending June 30, 1950, for the 
purpose of carrying out the provisions of this resolution: 
Provided, That any unexpended and unencumbered balances 
of said appropriations as of June 30, 1949, and June 30,
1950, respectively, are hereby reappropriated for the same 
purposes for the next succeeding fiscal year.

§ 8. The auditor of state shall draw his warrants upon 
the state treasurer for the purposes provided for in this 
resolution upon duly itemized vouchers, executed as now or 
may hereafter be provided for by law, assigned in his office 
and approved by the chairman of the Kansas commission 
against discrimination.

§ 9. This act shall take effect and be in force from and 
after its publication in the official state paper.

Filed October 1, 1951.

(8589)



(









K ^ .

No. 1

IN THE

SUPREME COURT OF THE UNITED STATES

Oliver B row n , M rs. R ichard L aw ton , 
M rs. S adie E m m a n u e l , et al ., 

A ppellants,

vs.
B oard of E ducation of T opeka, S h a w n ee  

C o u n ty , K ansas, et al.,

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS.

SUPPLEMENTAL BRIEF FOR THE STATE OF 
KANSAS ON QUESTIONS 4 AND 5 PRO­

POUNDED BY THE COURT.

HAROLD R. FATZER,
Attorney General,

PAUL E. WILSON,
Assistant Attorney General,

Attorneys for the State of Kansas.

O ctober T erm , 1954.

A ppellees.

K E L L E Y  P R I N T I N G  C O . .  T O P E K A



\



T A B L E  OF CO N TEN TS.
Page

STATEMENT .................................................................... 1
THE QUESTIONS ..........................................................  2
GENERAL CONSIDERATIONS ..........................   3
ARGUMENT ON QUESTIONS PROPOU N DED.... 6

CURRENT DE-SEGREGATION TRENDS.......... 13
Atchison....................................................................  14
Lawrence ...................................................................... 15
Leavenworth ..............................................................  16
Kansas City ................................................................  19
Parsons . . • •................................................................  21
Salina ............................................................................ 22
Cities Reporting no Action....................................... 22

CONCLUSION .........................     23



Page
Addison v. Holly Hill Co., 322 U. S. 607, 622.............. 9
Alabama Public Service Comm. v. Southern Ry. Co.,

341 U. S. 341, 351................................................ .........  12
Brown v. Board of Education of Topeka, et al., 345 

U. S. 972........................................................................  3
Brown v. Board of Education of Topeka, et al., 347 

U. S. 483,  ..........................................................  2
Chapman v. Sheridan-Wyoming Coal Co., Inc., 338 

U. S. 621, 630....................................................................  8
Eccles v. Peoples Bank, 333 U. S. 426, 431.................. 8
Hecht Co. v. Bowles, 3'21 U. S. 321, 329-330.............. 8
Henderson v. United States, 339 U. S. 816.................. 11
International Salt Co. v. United States, 332 U. S. 392 11
Missouri, ex rel. Gaines v. Canada, Registrar, 305 

U. S. 337...................   11
Securities Exch. Comm. v. U S R & Impl. Co., 310 

U. S. 434, Syl. 7 .............................................................  9
Sipuel v. Board of Regents, 232 U. S. 631...................... 11
United States v. Morgan, 307 U. S. 183.....................  9

T A B L E  OF C A SE S.

STATUTES CITED.

Section 21-2424, General Statutes of Kansas, 1949......  4
Section 72-1724, General Statutes of Kansas, 1949-----4,13



IN THE

SUPREME COURT OF THE UNITED STATES
October T erm , 1954.

No. 1

Oliver B r ow n , M rs. B ichard L aw to n , 
M rs. Sadie E m m a n u e l , et al ., 

A ppellants,

vs.
B oard of E ducation of T opeka, S h a w n ee  

Co u n ty , K ansas, et al ., 
A ppellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF KANSAS.

SUPPLEMENTAL BRIEF FOR THE STATE OF 
KANSAS ON QUESTIONS 4 AND 5 PRO­

POUNDED BY THE COURT.

STATEMENT.

On May 17, 1954, this Court announced its opinion that 
racial segregation in public education per se is a denial 
of the equal protection of the laws guaranteed by the



2

Fourteenth Amendment to the Constitution of the United 
States. At the same time the Court sought an expres­
sion of the views of the parties relative to the specific 
decrees to be entered in this case and other cases now 
pending. More particularly, the Court’s request is as 
follows:

“ In order that we may have the full assistance 
of the parties in formulating decrees, the cases will 
be restored to the docket and the parties are re­
quested to present further argument on Questions 
4 and 5 previously propounded by the court for re­
argument this term.”  (Brown v. Board of Educa­
tion of Topeka, et al., 347 U. S. 483, 495)

The following is respectfully submitted in an effort 
to comply with that request.

THE QUESTIONS.

Questions 4 and 5 mentioned above, were set forth in 
the Court’s order of June 8, 1953, and are quoted here­
after :

“ 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 segregation systems 
to a system not based on color distinctions!
“ 5. On the assumption on which questions 4(a) and 
(b) are based, and assuming further that this Court



3

will exercise its equity powers to the end described 
in question 4(b),

“ (a) should this Court formulate 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 general 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?”  
(Brown v. Board of Education of Topeka, et al., 
345 U. S. 972.)

GENERAL CONSIDERATIONS.

We pause at the outset of these comments to empha­
size that we do not approach the present questions as 
an adversary. Heretofore in the arguments of Decem­
ber, 1952, and upon reargument in December, 1953, we 
presented as fully as we could the arguments in justifica­
tion of the statute authorizing certain boards of educa­
tion in Kansas to provide for the education of Negro 
children in separate schools of equal facility. The argu­
ments then advanced appeared consistent with the re­
ported decisions of this Court, the Supreme Court of 
Kansas, and Appellate Courts elsewhere. However, the 
issue in this case has now been determined contra to the 
position we then urged. We accept without reservation



4

or equivocation the Court’s declaration that “ in the 
field of public education, the; doctrine of ‘ separate but 
equal’ has no place.”  We assure the Count that the 
resources of state government will be employed to ef­
fectuate the decision in the public schools of Kansas. 
Hence, the sole purpose of this brief is to supply such 
information as may assist the Court in finally dispos­
ing of the Kansas case.

Of the several cases at bar we suspect that the Kan­
sas case may be least complex. Several considerations 
point to this conclusion. In earlier arguments we have 
pointed out that the practice of segregation in public 
education has never been widespread among the com­
munities of the state. Traditionally, Kansans abhor in­
equality. Except in the case of the elementary schools 
in cities of the first class, the statutes of Kansas spe­
cifically prohibit school authorities from making distinc­
tions based on race, color or previous condition of servi­
tude. (Gr. S. 1949, 21-2424) Moreover, we think it is 
significant that quite apart from the Courts decision 
of May 17, 1954, and through the normal exercise o f 
local autonomy, an accelerated adjustment from exist­
ing segregated systems to a system not based on color 
distinction has been in progress throughout the state. 
Indeed, it might well be argued that the instant case 
is moot by reason of the action of the Topeka Board 
of Education more fully described in its separate brief 
filed herein.

Segregation has never existed in Kansas as a matter of 
state policy. Section 72-1724, General Statutes of Kan­



5

sas of 1949, which has been declared unconstitutional in 
the present litigation, purported to permit rather than to 
require segregated elementary schools in the areas to 
which it applied. Those segregated systems that have 
been maintained, have existed by virtue of action of local 
boards of education. Hence we do not contemplate that 
the termination of segregation in Kansas will be the oc­
casion for any policy adjustment on a state level. No 
provision of the Constitution of Kansas is affected by 
the Court’s decision of May 17, 1954. There is no oc­
casion for state legislation to provide for or implement 
the process of de-segregation. The abandonment of seg­
regated school systems will not require the alteration of 
any policy established by the State Department of Pub­
lic Instruction or any other state administrative agency. 
Emphatically, de-segregation will produce no cultural 
problem nor will it disrupt an established way of life. 
In fact, there has been no significant amount of protest 
on the part of any group of Kansas citizens to the elimi­
nation of separate schools. Indeed, the prevailing atti­
tude has been one of approval. Presumably, political 
party platforms reflect attitudes accepted by their mem­
bers. Note the statement quoted hereafter from the 
1954 platform of the Republican Party of Kansas:

“ We hail the recent historic decision of the Su­
preme Court of the United States as upholding the 
traditional position of the Republican Party that 
there can be no second class citizens under our Amer­
ican form of government.”  (***)

In view of the foregoing, we cannot, in candor, sug­
gest that at state level there are any barriers, legal or



6

otherwise, to the immediate termination of such segre­
gated public school systems as may exist in Kansas. The 
problems incident to the de-segregation process will be 
encountered on the local level only, and will be proced­
ural rather than substantial, pragmatic rather than es­
sential. At the same time, they are problems that ob­
viously cannot be resolved forthwith by resolutions of 
boards of education or even by decrees of this Court. 
Time will be required for deliberation, for decision and 
for adjustment. How much time? We do not presume 
to say. We suggest only that in those cases where, as 
in Kansas, responsible state and local officials are pro­
ceeding in diligence and good faith to effect the adjust­
ment required by the Court’s opinion herein, such ef­
forts should be recognized by this Court and be per­
mitted to proceed with a minimum of judicial direction.

ARGUMENT ON QUESTIONS PROPOUNDED.

The briefs submitted by the several parties and amici 
curiae prior to the December 1953 arguments, reveal 
little significant divergence of view relative to the prin­
ciples applicable to Questions 4 and 5. Hence, we dis­
cuss the questions somewhat summarily.

“ 4. Assuming it is decided that segregation in pub­
lic schools violates the Fourteenth Amendment,

(a) would a decree necessarily follow providing 
that, within the limits set by normal geopraphic 
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



7

be brought about from existing segregated systems 
to a system not based on color distinctions?”

The assumption stated has now become the established 
principle of law. The questions go to the power of a 
court of equity.

We think that a decree providing that, within the 
limits set by normal geographic school districting, Negro 
children should forthwith be admitted to schools of their 
choice, does not necessarily follow the opinion of May 
17. On the other hand, we believe that this Court, in 
the exercise of its equity powers, may permit an effec­
tive gradual adjudgment from existing segregated sys­
tems to a system not based on color distinctions. The 
very fact that these questions are now being argued, 
some seven months after the decision that segregation 
violates constitutional rights, suggests that the power to 
postpone compliance does exist.

The decree must seek to reconcile the personal and 
present interest of the Negro citizen, whose constitutional 
rights have been violated, with the public interest in 
safeguarding the integrity of the school system. To il­
lustrate, we call attention specifically to a statement con­
tained in the separate brief of the Board of Education 
of Topeka submitted prior to the December, 1953, ar­
guments :

“ If this Court should enter an order to abolish 
segregation in the public schools of Topeka ‘ forth­
with’, as suggested in Question 4(a), the Topeka 
Board would, of course, do its best to comply with 
the order. We believe, however, that it would prob­
ably require that the regular classes be suspended,



8

while the many administrative changes and adjust­
ments are being made, and while the necessary trans­
fers of and reassignment of students and teachers 
are being made. Important decisions would have to 
be hurriedly made, without time for careful investi­
gation of the facts nor for careful thought and re­
flection. Most decisions would have to be made on 
a temporary or an emergency basis. We believe the 
attendant confusion and interruption of the regular 
school program would be against the public interest, 
and would he damaging to the children, both negro 
and white alike.”  (pp. 4-5) (Italics supplied)

We think it cannot he disputed that a court of equity 
has power to avoid such a consequence.

The reports abound with authority for the proposition 
that it is the duty of a court of equity “ to strike a 
proper balance between the needs of the plaintiff and 
the consequences of giving the desired relief.”  (Eccles v. 
Peoples Bank, 333 II. S. 426, 431.)

“  . . . equity will administer such relief as the 
exigencies of the case demand at the close of the 
trial.”  (Chapman v. Sheridan-Wyoming Coal Co.,
Inc., 338 U. S. 621, 630.)

“ The essence of equity jurisdiction has been the 
power o f the Chancellor to do equity and to mould 
each decree to the necessities of the particular case. 
Flexibility rather than rigidity has distinguished it. 
The qualities of mercy and practicality have made 
equity the instrument for nice adjustment and re­
conciliation between the public interest and private 
needs as well as between competing private claims.”  
(Hecht Co. v. Bowles, 321 U. S. 321, 329-330.)

“ It is familiar doctrine that the extent to which 
a court of equity may grant or withhold its aid, and



the manner of moulding its remedies, may be affected 
by the public interest involved.”  (U. S. v. Morgan, 
307 U. S. 183.)

“ A court of equity has discretion, in the exercise 
of jurisdiction committed to it, to grant or deny re­
lief upon performance of conditions which will safe­
guard the public interest.”  (Securities Exch. Comm. 
v .U  S R & Imp. Co., 310 U. S. 434, Syl. 7.)

“ In short, the judicial process is not without the 
resources of flexibility in shaping its remedies 
. . . ”  (Addison v. Holly Hill Co., 322 U. S. 607,
622.)

We presume that no principle of equity jurisprudence is 
more familiar than that illustrated by the foregoing 
statements. It would seem that the authorities cited 
would preclude further argument on Question 4. How­
ever, this proposition has been discussed at some length 
in the supplemental brief for the United States on re­
argument filed herein prior to the arguments in Decem­
ber, 1953. We call the Court’s attention specifically to 
the discussion and authorities contained in that brief on 
pages 152 to 167, inclusive, and suggest that we are in 
substantial agreement with the views expressed therein.

Question 5 assumes that 4(b) has been answered in 
the affirmative. The Court then inquires:

“ (a) should this Court formulate 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;

9



10

“  (d) should this Court remand to the courts of first 
instance with directions to frame decrees in these 
cases, and if so, what general 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?”

This question compels our attention to the inherent 
limitations on the judicial power. We doubt that the 
Court contemplates the judicial development of a plan 
for the de-segregation of the schools of Kansas or any 
other state. If such action is contemplated, we doubt 
that it is legally or practically feasible. The Court 
may determine, as it has determined, that the segregated 
school system heretofore maintained in Topeka, Kansas, 
violates the Constitution of the United States. It may 
determine whether a gradual adjustment to a system 
not based on color distinctions is authorized. However, 
it cannot tell the Topeka Board of Education what non- 
segregated school system will be substituted for the one 
heretofore maintained, nor can it prescribe the course 
to be followed in effecting the substitution. These are 
determinations that must necessarily be made with refer­
ence to local conditions—conditions that were not ger­
mane to the question of whether segregation per se is 
unconstitutional and hence are not reflected by the rec­
ord now before the Court. They are determinations that 
must be made by local officials who are familiar with 
local conditions and who are responsible for local educa­
tional policy and for the general administration of the 
school system. We urge that those officials be given the



11

maximum latitude consistent with the rights of appel­
lants.

We emphasize that in the exercise of appellate juris­
diction, the Court’s considerations are limited by the 
record forwarded from the court of original jurisdiction. 
The present questions have appeared in the case since 
the trial in the court below. Hence, before any detailed 
decree could be framed, additional evidence would prob­
ably be required. We suggest that the District Court is 
the proper forum to hear evidence and determine facts.

“ The framing of decrees should take place in the 
district courts rather than in the appellate courts.”  
(International Salt Co. v. United States, 332 U. S. 
392.)

A  review of the precedents would indicate that this 
Court, as a matter of policy, has heretofore refused to 
frame detailed decrees in cases involving segregation in 
education. In those cases where school facilities have 
been held unequal and where administrative action has 
been required to secure equality, the Court has not at­
tempted to determine precise standards to be observed 
by the parties in order to finally dispose of the case. 
Rather, the Court has been content to remand the case 
to the lower court for further proceedings consistent 
with and in conformity with its opinion. (Sipuel v. 
Board of Regents, 332 U. S. 631; Missouri ex rel. Gaines 
v. Canada, Registrar, 305 U. S. 337, and Henderson v.
United States, 339 U. S. 816.)

Thus, we answer .part (a) of Question 5 in the nega­
tive. This answer obviously precludes comment on part



12

(b). Similarly, we answer part (c) in the negative. We 
believe that the only order necessary in the present case, 
indeed, the only one justified by the circumstances, is 
one reversing the judgment of District Court, and re­
manding the cause to said court with directions to enter 
an appropriate decree. We suggest further that the Dis­
trict Court be directed to retain jurisdiction of the cause 
until such time as the maintenance of segregated schools 
by Appellee Board of Education is finally terminated. 
Implicit in such an order would be the power of the 
District Court upon appropriate motion by any of the 
parties to deal with special problems arising during the 
transition period.

Finally, we suggest that the decrees of both this Court 
and the District Court should provide for a minimum 
of judicial control.

“ It is in the public interest that federal courts of 
equity should exercise their discretionary power to 
grant or withhold relief so as to avoid needless ob­
struction of the domestic policy of the states . . . ”  
(Alabama, Pub. Serv. Comm. v. Southern Ry. Co., 
341 U. S. 341, 351.)

Wherever responsible state and local officials are pro­
ceeding in good faith to make the adjustments required 
by the Court’s opinion of May 17, 1954, we suggest that 
their efforts be recognized and that they not be hedged 
by detailed judicial orders.



13

CURRENT DE SEGREGATION TRENDS.

In its separate brief, the Topeka Board of Education 
has advised the Court of its action to terminate its seg­
regated schools. Hence, we comment on that situation 
only briefly. Since September, 1953, Topeka has moved 
from universal segregation in its elementary schools, 
to a system consisting of 12 integrated schools, two par­
tially integrated, five schools maintained exclusively for 
white students and four attended only by Negroes. One 
hundred and twenty-three Negro students now attend 
mixed elementary schools. We deem this significant pro­
gress.

In other communities of Kansas, boards of education 
not parties to this suit are initiating similar policies. 
Since these arguments have apparently come to tran­
scend the original parties and issues, we trust it is not 
improper to comment on the experience of Kansas in 
areas other than Topeka.

Section 72-1724, General Statutes of Kansas, 1949, au­
thorizing segregated elementary schools, applied to twelve 
cities of the state. One city, Hutchinson, never exercised 
the power the statute purported to confer. Two cities, 
Wichita and Pittsburg, maintained separate elementary 
schools for many years, but for reasons of local policy, 
terminated the practice in 1952. The recent action of 
Topeka is mentioned above and is detailed in the sepa­
rate brief of its Board of Education. Six other cities 
of the state have, during the past year, commenced or 
completed the process of de-segregating their public 
schools.



14

Atchison. Atchison, a city of 13’,000 persons, is located 
on the boundary between Kansas and Missouri. Its pop­
ulation is about 10% Negro. Segregation has been 
maintained in the public elementary schools of Atchison 
since the establishment of the system. It may be signifi­
cant that the city was founded in 1854 by persons of 
pro-slavery sympathies and for years the southern tra­
dition was manifest in the community. Prior to the pres­
ent school year four elementary schools, each serving a 
fixed geographical area, have been maintained exclusively 
for white students and one elementary school has been 
maintained for Negroes. On September 12, 19o3, the 
Board of Education adopted the following resolution:

“ That the plan of abolition of segregation in the 
public schools of Atchison heretofore established by 
the Board of Education and which has been effected 
in grades seven through twelve be intensified so as 
to complete the plan throughout grades one through 
six as soon as practicable.”

Subsequent thereto, on June 9, 1954, the policy was 
implemented by the adoption of a further resolution, 
the text of which is set forth hereafter:

“ Motion was made by Mr. Thorning that segrega­
tion of negro pupils be discontinued as of this date 
in all Atchison city school districts with the excep­
tion of the Martin-Lincoln district; thereby eliminat­
ing the necessity for operation of the school bus 
transporting pupils to Lincoln school; also, that be­
ginning with the school term of September 1955, all 
segregation be ended in the Martin-Lincoln district 
under such a plan as will promote the best interests 
of the students in our school system.”



15

At the present time in excess of 25% of the Negro 
students of the city are attending mixed schools. The 
Board of Education anticipates that the process of de­
segregation will be completed by September 1, 1955. In 
addition to the integration of students as above set forth, 
a Negro has been employed as an elementary class-room 
teacher, teaching predominately white 6th grade classes. 
School administrators anticipate that all Negro teachers 
presently employed, will be assimilated into the inte­
grated system.

Lawrence. Seat of the State University, Lawrence is 
a city of 24,000 population. About 7% of the people 
are Negro. Segregated schools had been maintained 
since prior to 1869. The process of assimilating the 
Negroes into white schools was apparently begun about 
1916, with the result that during the past few years only 
one school had been maintained exclusively for Negroes. 
Subsequent to the decision of the Supreme Court of 
May 17, 1954, the Lawrence Board of Education ordered 
the immediate termination of segregation in all its pub­
lic schools. In addition a Negro teacher was employed 
in the school system to teach special classes in junior 
high school and to teach physical education in the ele­
mentary schools, all of which classes are attended by pre­
dominately white students. The seriousness with which 
this community approaches the problem is indicated by 
the following comment of a school official in a communi­
cation addressed to the Attorney General of Kansas:

“ We recognize that some Kansas communities 
have problems more grave than ours—and we have 
some hurdles certainly.



16

“ Does integration mean the mixing of white and 
colored pupils only? What is the status of the col­
ored teacher? This year we employed one colored 
teacher on the basis of qualification for the job— but 
we recognize the possibility of unfavorable reaction 
when a colored person is employed as a teacher of a 
self contained room. Such adaptations must come 
slowly hut must be achieved if integration is to be 
more than a term referring to mixing of colored and 
white pupils.”

Leavenworth. Leavenworth, a city in excess of 20,000 
inhabitants, has a Negro population of about 10%. The 
segregated system of elementary schools was established 
in 1858 and has been maintained consistently since that 
time. At present two elementary schools are maintained 
exclusively for Negro students, whereas nine are attended 
only by white. The policy announced by the Leaven­
worth Board of Education of August 2, 1954, indicates 
the reaction of the people of this community to the de­
cision of May 17. The statement of policy is set forth 
hereafter:

“ Pupils who enter the 'kindergarten or the first 
grade in the fall of 1954 will be permitted to enroll 
in the school of the district in which they reside 
regardless of race. Such negro pupils regardless of 
residence may continue to attend Lincoln and Sum­
ner schools which will be adequately staffed with cap­
able Negro teachers. It will be necessary for a time 
to establish attendance districts for the Lincoln and 
Sumner schools in order to carry out this policy. It 
is the belief of the Board of Education that the 
negro people in the Leavenworth community may 
desire to continue their schools as presently oper­
ated for a term of years during the transition period.



17

“ The Board of Education in this statement of 
policy believes it to be consistent with the Supreme 
Court decision in that it is starting in an orderly 
way to move away from compulsory segregation.

“ It is believed that integration, when desired by 
the parents, can best be initiated at the lower grade 
levels. Those colored pupils who enroll in non-negro- 
staffed schools at the kindergarten or first grade 
level may continue in the school through subsequent 
grades.

“ It is believed that it will be best for the individ­
ual if integration begins at the primary level. Also, 
the existing school system has been established in 
a certain pattern, and because of limited facilities, 
the pattern of enrollment cannot be suddenly changed. 
The Board of Education is required to provide 
school facilities and to frame policies for the welfare 
of all pupils.

“ The Board will continue to study the problem 
and restate its policies consistent with the expressed 
desires of the people within the framework of the 
Supreme Court decision.

“ The Board solicits the cooperation of all citi­
zens in making an orderly transition from a segre­
gated to a non-segregated school system. It looks 
to the State Legislature, the State Department of 
Public Instruction and the Attorney General for 
counsel in the continuous reframing of its policies 
consistent with the Supreme Court’s interpretation 
regarding the constitutionality of the Kansas statute 
under which Leavenworth schools have operated since 
1879.

“ The Board will make an effort to follow the sug­
gestions and recommendations of the Supreme Court 
as promised to be made by that body subsequent to 
October, 1954.”



18

The first positive step taken by the Leavenworth school 
system consistent with its declared policy has been the 
admission during the 1954-55 school year of kindergarten 
and first-grade pupils to the school nearest their resi­
dence regardless of race. Presumably next year the 
Board intends to extend this policy to the second or 
higher grades, although a positive statement to this ef­
fect has not been announced. The following comment of 
a public school official of Leavenworth suggests one of 
the problems incident to de-segregation, and the com­
munity’s approach thereto:

“ It is the intention of the Leavenworth Board of 
Education to be completely fair in the treatment of 
its faithful and competent negro teachers. It has 
been in the cities maintaining segregated schools 
where the opportunity for employment has existed 
for negro teachers. There will be questions raised 
as to why we cannot suddenly integrate our teach­
ers in these cities, and there will be a few sporadic 
cases for publicity purposes to illustrate that negro 
teachers can be used indiscriminately. There are 
frequent cleavages between teachers and pupils at 
best. Some pupils resist authority and for various 
reasons have to be disciplined, restrained, or cor­
rected. This often puts parents on the defensive 
and causes them to question or resist the teacher’s 
authority. Now, if that teacher of a white child 
should be a negro, the cleavage would he magnified 
fifty to a hundredfold. I am sure you are well 
aware of this.

“ The Leavenworth Board believes that for a con­
siderable length of time, negro teachers will be used 
in schools attended almost entirely by negro pupils. 
It is perfectly logical to ask, why cannot we inte­
grate them in one magnanimous action? What about



19

communities like Hutchinson who has never had seg- 
gregation? Have they ever employed a negro teacher 
or are they likely to start employing them now? In 
my judgment, the solution will have to be carefully 
and slowly introduced. You and I and most hoard 
members will readily agree to the righteousness of 
complete integration from the standpoint of our es­
tablished principles of decency, Christianity and de­
mocracy. However, there is a sufficient number of 
biased and prejudiced persons who will make life 
miserable for those in authority who attempt to move 
in that direction too rapidly. As a consequence, 
many of us will he accused of ‘ dragging our feet’ 
in the matter, not because of our personal feelings 
or inclinations, hut because in dealing with the pub­
lic, its general approval and acceptance is indispens­
able. One cannot force it, he can only coax and nur­
ture it along.”

Kansas City. Kansas City has a total population of 
about 130,000, 20.5 percent of which belong to the Negro 
race. It is adjacent to Kansas City, Missouri. It is 
perhaps significant that the proportion of Negroes in 
Kansas City, Kansas, is1 greater than in such southern 
cities as Dallas, Louisville, Saint Louis, Tulsa, Miami 
and Oklahoma City, and only slightly less than that of 
Baltimore. Kansas City is the only community in Kan­
sas where by virtue of law segregated high schools have 
been maintained. Prior to the present school year the 
City of Kansas City has maintained seven elementary 
schools, one junior high-school and one high school ex­
clusively for its 6000 Negro students, while twenty-two 
schools were attended by more than 23,000 white stu­
dents. On August 2, 1954, the following statement of



20

policy was adopted by the Board of Education of Kan­
sas City:

“ The members of the Board of Education, meet­
ing as a committee of the whole, propose the adop­
tion of the following statement of policy with refer­
ence to the Supreme Court decision on segregation:
“ The Board of Education of the City of Kansas 
City of the State of Kansas hereby declares its in­
tent to abide by the spirit as well as the letter of 
the Supreme Court’s decision on segregation. Spe­
cifically, the Board of Education proposes:
“ 1. To begin integration in all the public schools 
at the opening of school on September 13, 1954.
“ 2. To complete the integration as rapidly as class 
room space can be provided.
“ 3. To accomplish the transition from segregation 
to integration in a natural and orderly manner de­
signed to protect the interests of all the pupils and 
to insure the support of the whole community.
“ 4. To avoid any disruption of the professional 
life of career teachers.
“ With these objectives in mind, the Board of Edu­
cation directs the Superintendent of Schools within 
the framework of this policy declaration to be re­
sponsible for developing and applying the plan of 
integration.”

The plan subsequently adopted permitted Negro stu­
dents in kindergarten and grades 1, 6, 7, 10, 11 and 12 
to enter the school of their choice within normal geo­
graphic limitations. Because the bulk of the Negro 
population is concentrated in one area of the city, the 
termination of compulsory segregation will not elimi­



21

nate schools attended exclusively by Negroes. However, 
a total of 233 Negro students are now attending mixed 
schools, and approximately 1000 more live in areas where 
the process of amalgamation is now in progress. A  re­
port to the Attorney General’s Office, dated October 12, 
1954, from a school administrator indicates:

“ The announced program by the Board of Edu­
cation was well received by whites and negroes alike 
and it is felt that integration in our schools is ac­
cepted and will be completed when classroom space 
permits. We are now engaged in the completion of 
a 6V2 million dollar building program which includes 
the immediate problem before us.”

School officials anticipate that subsequent to the com­
pletion of the amalgamation program all Negro teachers 
presently employed in the system will be retained.

Parsons. Parsons is located in southeastern Kansas 
some twenty miles from the Oklahoma border. It is a 
city of about 15,000 population, less than 10% of whom 
are Negroes. Prior to the current school year four ele­
mentary schools were maintained for white students and 
one for Negroes. Commencing with the current year, 
the Board of Education announced a policy to the effect 
that whenever possible and practical, restrictions on 
school attendance are to be immediately removed and 
segregation eliminated. In line with this policy, segre­
gation was eliminated in three of four ward elementary 
school areas at the beginning of the 1954-55 school year. 
The remaining school area is being operated on a segre­
gated basis because of crowded conditions. The sepa­
rate Negro school is located in this ward. Consequently



22

every child may attend an elementary school in the ward 
in which he resides.

It is the present policy of the Board to delay inte­
gration of the schools of the fourth ward until additional 
school facilities will be completed. At the present time 
twenty-six Negro students in Parsons are attending mixed 
elementary schools, while one hundred and forty-three 
are required to attend the school maintained exclusively 
for Negroes.

Salina. Segregation was terminated in the City of 
Salina prior to the opening of the current school term. 
In view of the fact that less than 3% of the city’s 27,000 
people are Negroes, the problems incident to assimila­
tion were slight. Prior to the present school term, one 
school was attended by all. Negroes of the city. The 
present policy of the Board of Education permits all 
students to attend the school located nearest their homes.

Cities Reporting no Action. Only two cities, Coffey- 
ville and Fort Scott, report that action by their Boards 
of Education has been delayed, pending final determina­
tion of this case. In these cities an aggregate of about 
400 Negro students attend three segregated schools. 
Both cities are located in Southern Kansas, and school 
officials indicate that there has been no local sentiment 
in favor of the termination of the policy of segregation. 
In one city, it is reported that the only protest against 
the prospect of de-segregation has come from the Negro 
citizens. However, in each of these communities local 
school officials stand ready to take such action as may be 
consistent with the policies to be announced by this Court 
and the best interests of their people.



23

CONCLUSION.

We respectfully submit that all considerations ger­
mane to the present issues require that the decree of 
this Court do no more than reverse the judgment of the 
District Court and remand the cause to said court with 
directions to enter judgment consistent with the opinion 
herein and to retain jurisdiction thereof until said judg­
ment be complied with.

HAROLD R. FATZER,
Attorney General,

PAUL E. WILSON,
Assistant Attorney General,

Attorneys for the State of Kansas.













IN  TH E

intprem? Guwrt of %  Ituteb States
October Term, 1953

No. 1
OLIVER BROWN, et al., Appellants, 

vs.

BOARD OF EDUCATION OF TOPEKA, et al., Appellees.

No. 2
HARRY BRIGGS, JR., et al., Appellants.

vs.

R. W. ELLIOTT, et al., Appellees.

No. 4
DOROTHY E. DAVIS, et al., Appellants, 

vs.

COUNTY SCHOOL BOARD OF PRINCE EDWARDS COUNTY,
Appellees.

No. 10
FRANCIS B. GEBHART, et al., Petitioners, 

vs.

ETHEL LOUISE BELTON, et al., Respondents.

A ppeals F rom the U nited States D istrict Court for the D istrict of 
Kansas, the Eastern D istrict of South Carolina and the Eastern D is­
trict of V irginia, and on Petition for a W rit of Certiorari to the 

Supreme Court of Delaware, Respectively

BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 4 AND 
FOR RESPONDENTS IN NO. 10 ON REARGUMENT

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES, 
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
DAVID E. PINSKY.
FRANK D. REEVES.
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUTS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1, 

2, 4 and for Respondents in No. ID.



.



TABLE OF CONTENTS

Explanatory Statement ................................................... 2

No. 1
Opinion B e low ....................................................................  2
Jurisdiction ........................................................................  2
Statement of the C a se ....................................................... 2
Specification of Errors ...............................  3

No. 2
Opinions Below ................................................................  4
Jurisdiction ........................................................................  4

Statement of the Case ..................................................... 4
Specification of Errors ..................................................... 6

No. 4
Opinion Below ..................................................................  6
Jurisdiction ........................................................................  6

Statement of the Case ..................................................... 7
Specification of E r r o r s ..................................................... 8

No. 10
Opinions Below ................................................................  9
Jurisdiction ........................................................................  9

Statement of the Case .........................  10
This Court’s Order ........................................................... 13
Summary of Argum ent................' ..................................  15

Argument .................................................................- ____ 21

PAGE



11

ARGUMENT

P art O ne

page

I. Normal exercise of the judicial function calls for 
a declaration that the state is without power to 
enforce distinctions based upon race or color in 
affording educational opportunities in the pub­
lic sch ools..................................................................  21

II. The statutory and constitutional provisions in­
volved in these cases cannot be validated under 
separate but equal concept ...................................  31
A. Racial Segregation Cannot Be Squared With

the Rationale of the Early Cases Interpreting 
the Reach of the Fourteenth Amendment . . . .  32

B. The First Time the Question Came Before the
Court, Racial Segregation In Transportation 
Was Specifically D isapproved.........................  36

C. The Separate But Equal Doctrine Marked An 
Unwarranted Departure From the Main 
Stream of Constitutional Development and 
Permits the Frustration of the Very Purposes 
of The Fourteenth Amendment As Defined
by This Court ..................................................... 38

D. The Separate But Equal Doctrine Was Con­
ceived in Error ................................................... 40
1. The Dissenting Opinion of Justice Harlan

in Plessy v. Ferguson .................................  40

2. Custom, Usage and Tradition Rooted in the
Slave Tradition Cannot Be the Constitu­
tional Yardstick for Measuring State Ac­
tion Under the Fourteenth Amendment .. 42

3. Preservation of Public Peace Cannot Jus­
tify Deprivation of Constitutional Rights 43



I l l

•4. The Separate but Equal Doctrine Deprives 
Negroes of That Protection Which the 
Fourteenth Amendment Accords Under the 
General Classification Test .......................  45

E. The Separate But Equal Doctrine Has Not 
Received Unqualified Approval in This Court 47

F. The Necessary Consequence of the Sweatt and
McLaurin Decisions is Repudiation of the 
Separate But Equal Doctrine .........................  48

III. Viewed in the light of history the separate but 
equal doctrine has been an instrumentality of 
defiant nullification of the Fourteenth Amend­
ment ............................................................................ 50
A. The Status of the Negro, Slave and Free, Prior

to the Civil War ................................................  50
B. The Post War Struggle ...................................  53
C. The Compromise of 1877 and the Abandon­

ment of Reconstruction.....................................  56
D. Consequences of the 1877 Compromise............ 57
E. Nullification of the Rights Guaranteed by the

Fourteenth Amendment and the Reestablish­
ment of the Negro’s Pre-Civil War Inferior 
Status Fully Realized ....................................... 62

Conclusion of Part I ......................................................... 66

P art Two

I. The Fourteenth Amendment was intended to de­
stroy all caste and color legislation in the United 
States, including racial segregation...................... 67

PAGE



IV

A. The Era Prior to the Civil War Was Marked 
By Determined Efforts to Secure Recognition 
of the Principle of Complete and Real Equality 
For All Men Within the Existing Constitu­

PAGE

tional Framework of Our Government.......... 69
Equality Under Law .......................................  70

B. The Movement For Complete Equality
Reached Its Successful Culmination in the 
Civil War and the Fourteenth Amendment .. 75

C. The Principle of Absolute and Complete 
Equality Began to Be Translated Into Fed­
eral Law as Early as 1862 .............................  77

D. From the Beginning the Thirty-Ninth Con­
gress Was Determined to Eliminate Race
Distinctions From American L a w .................. 79
The Framers of the Fourteenth Amendment 93

E. The Fourteenth Amendment Was Intended to
Write into the Organic Law of the United 
States the Principle of Absolute and Com­
plete Equality in Broad Constitutional Lan­
guage ..................................................................  103

F. The Republican Majority in the 39th Con­
gress Was Determined to Prevent Future 
Congresses from Diminishing Federal Pro­
tection of These Rights ...................................  108

G. Congress Understood That While the Four- 
tenth Amendment Would Give Authority to 
Congress to Enforce Its Provisions, the
Amendment in and of Itself Would Invali­
date All Class Legislation by the S ta tes___  114

Congress Intended to Destroy All Class 
Distinction In Law 118



V

H. The Treatment of Public Education or Segre­
gation in Public Schools During the 39th 
Congress Must Be Considered in the Light 
of the Status of Public Education at That 
tjme ....................................................................  120

I. During the Congressional Debates on Pro­
posed Legislation Which Culminated in the 
Civil Rights Act of 1875 Veterans of the 
Thirty-Ninth Congress Adhered to Their 
Conviction That the Fourtenth Amendment 
Had Proscribed Segregation in Public Schools 126

II. There is convincing evidence that the State Legis­
latures and conventions which ratified the Four­
teenth Amendment contemplated and understood 
that it prohibited State legislation which would 
require racial segregation in public sch ools___  139
A. The Eleven States Seeking Readmission 

Understood that the Fourteenth Amendment 
Stripped Them of Power to Maintain Segre­

PAGE

gated Schools ..................................................... 142
Arkansas ............................................................. 143
North Carolina, South Carolina, Louisiana,

Georgia and Florida .....................................  144
Texas ..................................................................  151
V irgin ia ................................................................  152
Mississippi ........................................................... 153
Tennessee ........................... , ............................. 155

B. The Majority of the Twenty-two Union States 
Ratifying the 14th Amendment Understood 
that it Forbade Compulsory Segragation in
Public Schools ................................................... 157

West Virginia and M issouri...........................  158
The New England States .................................  159
The Middle Atlantic S ta tes .............................  164
The Western Reserve States .......................... 170
The Western States .........................................  177



VI

C. The Non-Ratifying States Understood that 
the Fourteenth Amendment Forbade Enforced

PAGE

Segregation in Public Schools.........................  182
Maryland ............................................................  183
Kentucky ............................................................  184
California ........................................................... 185

Conclusions of Part II ..................................................... 186

P art T hree

1. This Court should declare invalid the constitu­
tional and statutory provisions here involved 
requiring segregation in public schools. After 
careful consideration of all of the factors involved 
in transition from segregated school systems to 
unsegregated school systems, appellants know of 
no reasons or considerations which would war­
rant postponement of the enforcement of appel­
lants’ rights by this Court in the exercise of its 
equity powers ........................................................... 190
A. The Fourteenth Amendment requires that a

decree be entered directing that appellants 
be admitted forthwith to public schools with­
out distinction as to race or c o lo r .................  190

B. There is no equitable justification for post­
ponement of appellants’ enjoyment of their 
rights ..................................................................  191

C. Appellants are unable in good faith, to sug­
gest terms for a decree which will secure 
effective gradual adjustment because no such
decree will protect appellants’ r ig h ts ...........  195

Conclusion ........................................................................  198

Supplement ........................................................................  199



Table o f Cases

Adamson v. California, 332 U. S. 4 6 ...........................  99
Alston v. School Board, 112 F. 2d 992 (CA 4tli 1940),

cert, denied 311 U. S. 693 .......................................  25
Ammons v. School Dist. No. 5, 7 R. I. 596 (1864) . . . .  159
Avery v. Georgia, 345 U. S. 559 .................................  24
Barbier v. Connolly, 113 U. S. 2 7 ...............................  45
Barrows v. Jackson, — U. S. —, 97 L. ed. (Advance,

p. 961) ..........................................................................  22
Baskin v. Brown, 174 F. 2d 391 (CA 4th 1949 )........  25
Bell’s Gap R. R. Co. v. Pennsylvania, 134 U. S. 232 46
Berea College v. Kentucky, 211 U. S. 4 5 .................... 48
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 . . .  25
Buchanan v. Warley, 245 U. S. 60 ......................... 16, 22, 44,

47,194
Bush v. Kentucky, 107 U. S. 1 1 0 .................................  110
Carr v. Corning, 182 F. 2d 14 (C. A. D. C. 1950) . . . .  8
Cassell v. Texas, 339 U. S. 282 .....................................  24
Chance v. Lambeth, 186 F. 2d 879 (CA 4th 1951),

cert, denied 341 U. S. 9 1 ........................................... 48
Chiles v. Chesapeake & Ohio Railway Co., 218 U. S.

71 .................................................................................. 42,48
Cities Service Gas Co. v. Peerless Oil & Gas Co.,

340 U. S. 1 7 9 ..............................................................  46
Civil Rights Cases, 109 U. S. 3 .....................................  35
Clark v. Board of School Directors, 24 Iowa 266

(1868) ......................................................................... 150,182
Coger v. N. W. Union Packet Co., 37 Iowa 145 (1873) 182
Cory v. Carter, 48 Ind. 327 (1874) .............................  173
Crandell v. State, 10 Conn. 339 (1834) .............. 208
Crowell v. Benson, 285 U. S. 2 2 ......................................  48
Cumming v. County Board of Education, 175 U. S.

528 ................................................................................ 48
Dallas v. Fosdick, 50 How. Prac. (N. Y.) 249 (1869) 169
De Jonge v. Oregon, 299 U. S. 353 .............................  125
District of Columbia v. John R. Thompson Co., 346 

U. S. 100 ....................................................................  193

V l l

PAGE



V l l l

Dove v. Ind. School Dist., 41 Iowa 689 (1875 ).......... 182
Edwards v. California, 314 U. S. 1 8 0 ........................  23
Estep v. United States, 327 U. S. 114 ......................... 48
Ex Parte Endo, 323 U. S. 283 .....................................  24
Ex Parte Virginia, 100 U. S. 339 .............................  35
Foister v. Board of Supervisors, Civil Action No. 937

(E. D. La. 1952) unreported.....................................  49
Giozza v. Tiernan, 148 U. S. 657 .................................  46
Gong Lum v. Rice, 275 U. S. 78 .................................  47,48
Gray v. Board of Trustees of University of Tennes­

see, 342 U. S. 517 ....................................................  48
Guinn v. United States, 238 U. S. 347 .....................  25, 58
Henderson v. United States, 339 U. S. 816 ..............23, 43, 48
Hill v. Texas, 316 U. S. 400 .........................................  24
Hirabayashi v. United States, 320 U. S. 81 ..........22, 23, 24
Illinois ex rel. McCollum v. Board of Education, 333

U. S. 203 ....................................................................  125
Jones v. Better Business Bureau, 123 F. 2d 767, 769

(CA 10th 1941) ........................................................  28
Jones v. VanZandt, 46 U. S. 2 1 5 .................................  220
Korematsu v. United States, 323 U. S. 214 .................. 23, 24
Lane v. Wilson, 307 U. S. 268 .....................................  25
Lewis v. Henley, 2 Ind. 332 (1850) .............................  172
McCardle v. Indianapolis Water Co., 272 U. S. 400 .. 125
McKissick v. Carmichael, 187 F. 2d 949 (CA 4th

1951), cert, denied 341 U. S. 951 .............................  48,49
McLaurin v. Oklahoma State Regents, 339 U. S.

637 ......................................................... 16,17, 22, 26, 27, 30,
31, 43, 47, 48,49

McPherson v. Blacker, 146 U. S. 1 .........................  46
Marchant v. Pennsylvania R. Co., 153 U. S. 380 . . . .  46
Mayflower Farms v. Ten Eyck, 297 U. S. 266 .............. 16,46
Miller v. Schoene, 276 U. S. 272 .................................  125
Minneapolis & St. Louis Rv. Co. v. Beckwith, 129

U. S. 26 ........................................................................  46
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ___ 22,47

PAGE



LX

Mitchell v. Board of Regents of University of Mary­
land, Docket No. 16, Folio 126 (Baltimore City
Court 1950) unreported.................................................  49

Monk v. City of Birmingham, 185 F. 2d 859 (CA 5th
1950), cert, denied 341 U. S. 940 .............................  45

Moore v. Missouri, 159 U. S. 673 .................................  46
Morgan v. Virginia, 328 U. S. 373 ......................... 25,45,48
Nancy Jackson v. Bullock, 12 Conn. (1837) .............. 220
Neal v. Delaware, 103 U. S. 370 ...................................  35
Nixon v. Condon, 286 U. S. 7 3 ...................................  24
Nixon v. Herndon, 273 U. S. 536 .................................  46
Oyama v. California, 332 U. S. 633 ...........................  22, 24
Payne v. Board of Supervisors, Civil Action No. 894

(E. D. La. 1952) unreported...................................  49
People v. Easton, 13 Abb. Prac. N. S. (N. Y.) 159

(1872) ..........................................................................  169
People ex rel. King v. Gallagher, 92 N. Y. 438 (1883) 170
People ex rel. Workman v. Board of Education of

Detroit, 18 Mich. 400 (1869) .....................................  175
Pierce v. Union Dist. School Trustees, 17 Vroom

(46 N. J. L.) 76 (1884) ................................................  168
Pierre v. Louisiana, 306 U. S. 354 ...............................  24

PAGE

Plessy v. Ferguson, 163 U. S. 537 . . .  15,17, 31, 32, 35, 37, 38,
39, 40, 41, 42, 43, 45, 48, 
61, 62, 65,118,183

Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389.. 16, 46
Railroad Co. v. Brown, 17 Wall 445 ................. 36, 37, 39, 40
Railway Mail Assn. v. Corsi, 326 U. S. 88 ................. 26,170
Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert.

denied 333 U. S. 875 ................................................. 25
Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849) 71
Shelley v. Kraemer, 334 U. S. 1 ......................... 16, 21, 43, 75
Scott v. Sandford, 19 How. 393 ..................41, 52, 75, 76, 79,

83, 98,117
Shepherd v. Florida, 341 U. S. 5 0 ...............................  24
Sipuel v. Board of Regents, 332 U. S. 631 ..................47,190



X

PAGE

Skinner v. Oklahoma, 316 U. S. 535 ............................... 16, 46
Slaughter House Cases, 16 Wall. 36 ..............19, 32, 39,133,

137,141,142
Smith v. Allwright, 321 U. S. 649 .................................. 25,43
Smith v. Cahoon, 283 U. S. 553 ...................................... 16, 46
Smith v. Directors of Ind. School Dist., 40 Iowa 518

(1875) ........................................................................... 182
South v. Peters, 339 U. S. 276 ....................................... 23
State v. Duffy, 7 Nev. 342 (1872) .............................  181
State v. Board of Education, 2 Ohio Cir. Ct. Rep. 557

(1887) ........................................................................... 172
State v. Grubbs, 85 Ind. 213 (1883) ............................  173 410
State ex rel. Games v. McCann, 21 Ohio St. 198 (1872) 171
Steele v. Louisville & Nashville R. R. Co., 323 U. S.

192 ................................................................................  16,24
Strauder v. West Virginia, 100 U. S. 303 ................16, 33, 39,

119,142
Swanson v. University of Virginia, Civil Action No.

30 (W. D. Va. 1950) unreported...............................  48
Sweatt v. Painter, 339 U. S. 629 ............16,17, 26, 27, 30, 31,

43, 47, 48,125,190
Takahashi v. Fish and Game Commission, 334 U. S.

410 ................................................................................. 24
Terry v. Adams, 345 U. S. 461 .....................................  25, 58
Truax v. Raich, 239 U. S. 33 .....................................16, 24,46
Tunstall v. Brotherhood of Locomotive Firemen &

Enginemen, 323 U. S. 210 ........................................... 16, 24
United States v. Cruikshank, 92 U. S. 542 .................... 35
Van Camp v. Board of Education, 9 Ohio St. 406

(1859) ..............................................................................  171
Virginia v. Rives, 100 U. S. 3 1 3 ...................................  35
Ward v. Flood, 48 Cal. 36 (1874)......................................  185
West Chester & Phila. R. Co. v. Miles, 5 Smith (55 

Pa.) 209 (1867) .............................................................. 164
West Virginia State Board of Education v. Barnette, 

319 U. S. 624 ................................................................ 30



XI

Weyl v. Comm, of Int. Rev., 48 F. 2d 811, 812 (CA 2d
1931) ............................................................................  28

Wilson v. Board of Supervisors of Louisiana State 
University, 92 F. Supp. 986 (E. D. La. 1950),
aff’d 340 U. S. 909 ......................................................  48

Wysinger v. Crookshank, 82 Cal. 588 (1890).............. 185
Yesler v. Board of Harbor Line Commissioners, 146

U. S. 646 ...................................................................... 46
Yick W7o v. Hopkins, 118 U. S. 356 .............................  22, 35
Youngstown Co. v. Sawyer, 343 U. S. 579 ...................  192

Constitutions, Statutes and Session Laws

Federal

Rev. Stat. § 1979 (1875), 8 U. S. C. § 4 3 .................... 124
28 U. S. C., § 1253 ........................................................  2, 6
28 U. S. C., §1257(3) ................................................... 9
28 U. S. C., § 2101(b) ................................................... 2,6
28 U. S. C., § 2284 ......................................................... 3, 5
28 U. S. C. § 863 (1946) ............................................... 196
12 Stat. 376 (1862) .........................................................  77
12 Stat. 407 (1862) ....................................................... 77
12 Stat. 805 (1863) ........................................................  78
13 Stat. 536, 537 (1865) ................................................. 78
14 Stat. 358 (1866) ......................................................... 139
14 Stat. 377 (1867) ....................................................... 177
14 Stat. 391 (1867) ....................................................... 177
14 Stat. 428 (1867) .....................................................141,142
15 Stat. 708-711 (1866) ................................................. 157
15 Stat. 72 (1868) ............................... ' ......................143,144
15 Stat. 73 (1868) .........................................................144,147
16 Stat. 62 (1870) ..........................................................  153
16 Stat. 77 (1870) ........................................................  154
16 Stat, 80 (1870) .......................................................  151
16 Stat. 363 (1870) ........................................................  151

PAGE



Statutes and Constitutions 

State

Ala. Const. 1867, Art. X I ............................................... 149
Ala. Laws 1868, App., Acts Ala. Bd. Educ..................  150
Ark. Acts 1866-67, p. 1 0 0 ............................................... 142
Ark. Acts 1873, p. 423 ..................................................  144
Ark. Const. 1868, Art. IX, § 1 .....................................  143
Ark. Dig. Stats., c. 120, § 5513 (1874).........................  144
Ark. Laws (1873) ..........................................................  56
Cal. Stats. 1866, p. 363 ..................................................  185
Cal. Stats. 1873-74, p. 9 7 ............................................... 185
Cal. Stats. 1880, p. 4 8 ....................................................  185
Conn. Acts 1866-68, p. 206 ............................................. 159
Del. Const. 1897, Art. X, § 1 ......................................... 11
Del. Const. 1897, Art. X, § 2 ......................................... 183
13 Del. Laws 256 (1867) .............................................  183
Del. Laws 1871-73, pp. 686-87 ....................................... 183
Del. Laws 1875, pp. 82-83 ............................................. 183
Del. Laws 1875-77, e. 1 9 4 ........................... ...................  183
Del. Laws 1881, c. 362 ..................................................  183
Del. Rev. Code, Par. 261 (1935) ...................................  11
Del. Rev. Stats., c. 42, § 12 (1874) ...............................  183
Fla. Const. 1868, Art. VIII, § 1 ...................................  144
Fla. Const. 1885, Art. VII, § 2 .....................................  145
Fla. Laws 1869 ................................... ........................... 144
Fla. Laws 1873, c. 1947 ................................................  145
Ga. Const. 1868, Art. V I ............................................... 150
Ga. Const. 1877, Art. VIII, § 1 .....................................  151
Ga. Laws 1870, pp. 56-57 ................... ...........................56,151
Iowa Const. 1857, Art. I X ...........................................149,182
Iowa Laws 1865-66, p. 158 ...........................................149,182
111. Const. 1870, Art. VIII, § 1 .......................................  174
111. Stats. 1858, p. 460 ...... ............................................  173
Ind. Laws 1869, p. 4 1 ..................................................... 173

XU
PAGE



x m

Ind. Laws 1877, p. 124 ................................................. 173
Ind. Eev. Stats. (1843) ................................................  172
Kan. Laws 1862, c. 46, Art. 4, §§ 3, 1 8 ...................... 179
Kan. Law 1864, c. 67, § 4 ............................................. 179
Kan. Law. 1865, c. 46, § 1 ............................................. 179
Kan. Laws 1867, c. 125, § 1 .........................................  179
Kan. Laws 1874, c. 49 § 1 ............................................. 179
Kan. Laws 1876, p. 238 ................................................. 179
Kan. Laws 1879, c. 81, § 1 ............................................. 180
Kan. (len. Stats., Art. V, § 75; c. 19, Art. V, § 57, c. 92,

§1 (1868) ....................................................................  179
Kan. Stats., c. 72-1724 (1949) .....................................  2
Kan. Eev. Stats., §21-2424 (1935) .............................  179
Kan. Eev. Stats., § 27-1724 .........................................  180
Ky. Const. 1891, § 187 ................................................  184
Ky. Stats., e. 18 (1873) ................................................  184
Ky. Stats., c. 18 (1881) ............................................... 184
Ky. Laws 1865-66, 38-39, 49-50, 68-69 .........................  184
Ky. Laws 1869, c. 1634 ..................................................  184
Ky. Laws 1904, pp. 181-82............................................. 184
Ky. Laws 1869-70, pp. 113-127.....................................  184
Ky. Laws 1871-72, c. 112 ............................................. 184
La. Acts 1869, p. 37 ......................................................  149
La. Const. 1868, tit. VII, Art. 135 .............................  147
La. Const. 1868, tit. I, Art. 2 .........................................  147
La. Const. 1898, Art. 248 ............................................... 149
La. Laws 1871, pp. 208-10 ...........................................  149
La. Laws 1875, pp. 50-52 ............................................... 149
Mass. Acts 1845 ................................... ......................... 71
Mass. Acts & Ees. 1854-55, c. 256, § 1, p. 650 ..........72,160
Mass. Acts & Ees. 1864-65, pp. 674-75 .......................... 160
Mass. Acts & Ees. 1867, pp. 789, 820 .............................  161
Mass. Acts & Ees. 1867, p. 787 .......................................  162
Md. Laws 1865, c. 160, tit. i - i v .....................................  184
Md. Eev. Code, §§ 47, 60, 119 (1861-67 Supp.) .......... 184
Md. Laws 1868, c. 407 ..................................................... 184

PAGE



XIV

Md. Laws 1870, c. 311 ................................................. 184
Md. Rev. Code, tit. xvii, §§ 95, 98 (1878).....................  184
Md. Laws 1872, c. 377 ....................................................  184
Mich. Acts 1867, Act. 34, § 2 8 ....................................  175
Mich. Acts 1869, Act 77, § 32 ....................................  175
Mich. Acts 1883, Act 23, p. 1 6 ....................................... 175
Mich. Acts 1885, Act 130, § 1 .................................... 175
Mich. Comp. Laws, §§7220, 11759 (1897) .................. 175
Mich. Const. 1835, Art II, § i  .....................................  174
Mich. Const. 1850, Art VII, § 1, Art XVIII, § 11 . . . .  174
Mich. Laws 42 (1867 )..................................................... 175
Minn. Laws 1862, c. 1, § 33 ......................................... 180
Minn. Laws 1864, c. 4, § 1 ............................................. 180
Minn. Stats., c. 15, § 74 (1873) .....................................  180
Miss. Const. 1868, Art V I I I .........................................  153
Miss. Const. 1890, Art IX, § 2 .....................................  155
Miss. Laws 1878, p. 103 ..............................................56,155
Mo. Const. 1875, Art IX  ............................................. 158
Mo. Laws 1864, p. 126 ....................................................  158
Mo. Laws 1868, p. 1 7 0 .................    158
Mo. Laws 1869, p. 8 6 ...................   158
N. C. Const. 1868, Art. IX, §§ 2, 1 7 .............................  145
N. C. Const. 1872, Art. IX, § 2 .......................................  146
N. C. Laws 1867, c. LXXXIV, § 5 0 .............................  146
N. C. Lawrs 1868-69 ......................................................... 146
Nebr. Comp. Laws 1855-65, pp. 92, 234, 560, 642,

(1886)............................................................................ 178
2 Nebr. Comp. Laws 1866-77, pp. 351, 451, 453

(1887)...........................................................................178,179
Nev. Comp. Laws (1929) .............................................  181
Nev. Laws 1864-65, p. 426 ...............................................  180
N. H. Const. 1792, § L X X X I I I .....................................  163
N. J. Const. 1844, Art. IV, § 7(6) ...............................  167
N. J. Laws 1850, pp. 63-64 .............................................  167
N. J. Laws 1874, p. 135 .................................................  168
N. J. Laws 1881, p. 1 8 6 ................................................. 168

PAGE



XV

NT. J. Rev. Stats., c. 3 (1847) .........................................  167
N. Mex. Stats. 1949, Mar. 17, e. 168, § 1 9 .................... 196
N. Y. Const. 1821, Art. V I I ........................................... 169
N. Y. Const. 1846, Art. I X ............................................. 169
N. Y. Const. 1868, Art. I X ....................................   169
N. Y. Laws 1850, c. 143 ..................................................  169
N. Y. Laws 1852, c. 2 9 1 ..................................................  169
N. Y. Laws 1864, c. 555 ..................................................  169
X. Y. Laws 1873, c. 186, §§ 1, 3 .....................................  170
Ohio Laws 1828-29, p. 7 3 .............................  .............. 171
Ohio Laws 1847-48, pp. 81-83.......................................  171
Ohio Laws 1848-49, pp. 17-18.................   171
Ohio Laws 1852, p. 4 4 1 ..................................................  171
Ohio Laws 1878, p. 513 ..................................................  172
Ohio Laws 1887, p. 34 ...................................................  172
Ore. Laws 1868, p. 1 1 4 ..................................................  181
Ore. Laws 1868, Joint Resolutions and Memorials 13 181
Pa. Laws 1854, No. 617, § 2 4 ......................................... 164
Pa. Const. 1873, Art X, § 1 .........................................  166
Pa. Laws 1867, pp. 38-39, 1334 .....................................  166
Pa. Laws 1881, p. 76 ....................................................  166
R. I. Laws 1866, e. 609 ..................................................  160
S. C. Acts 1868-69, pp. 203-204 .....................................  148
S. C. Const. 1868, Art XX, §§ 4, 1 0 ............................  147
S. C. Const. 1868, Art I, § 7 .........................................  147
S. C. Const. 1895, Art XI, § 5 ......................................... 27
S. C. Const. 1895, Art XI, §7 .....................................  4,149
S. C. Code, § 5377 (1942) .............................................  4
S. C. Code, tit. 31, c. 122-23 (1935) .............................  27
S. C. Code, tit. 31, c. 122, 5321, 5323, 5325 (1935) .. 28
Tenn. Acts 1853-54, c. 81 ............................................. 155
Tenn. Acts 1865-66, ec. 15, 18, 4 0 .................................  155
Tenn. Const. 1834 (As Amended, 1865 ).....................  155

PAGE



XVI

Tenn. Const. 1870, Art XI, § 12 .................................  157
Tenn. Laws 1867, c. 27, § 1 7 ......................................... 157
Tenn. Laws 1870, c. 33, § 4 .........................................  157
Tex. Const. 1871, Art I, § 1 ......................................... 151
Tex. Const. 1871, Art IX, §§ 1-4 .............................  151
Tex. Const. 1876, Art VII, § 7 .................................  152
6 Tex. Laws 1866-71, p. 288 .......................................  152
8 Tex. Laws 1873-79, ec. CXX, § 5 4 .............................  152
Va. Acts 1869-70, c. 259, §47 .....................................  153
Va. Const. 1868, Art VIII, § 3 .....................................  152
Va. Const. 1902, Art IX, § 1 4 0 ..................................7,8,153
Va. Code, tit. 22, c. 12, Art 1, § 22-221 (1950) ..........  7,8
Va. Laws 1831 ................................................................  52
Vt. Const. 1777, c. II, § X X X I X .................................  163
Vt. Const. 1786, c. II, § X X X V I I I .............................  163
Vt. Const. 1793, c. II, § 41 .........................................  163
Wis. Const. 1848, Art 10, § 3 .........................................  176
Wis. Rev. Stats., tit. VII (1849) .............................  176
W. Va. Const. 1872, Art XII, § 8 .............................  158
W. Va. Laws 1865, p. 5 4 .................................................  158
W. Va. Laws 1867, c. 9 8 ................................................. 158
W. Va. Laws 1871, p. 206 ............................................... 158

Debates, Records and Reports of State Legislatures 
and Constitutional Conventions

Alabama Constitutional Convention 1901, Official
Proceedings, vol. I, I I ................................................. 60

Ark. Sen. J., 17th Sess. 19-21 (1869 )...........................  143
Biog. Dir. Am. Cong., H. R. Doc. No. 607, 81st Cong.

2nd Sess., 1229 (1950) ..................................................  226
Brevier Legislative Reports 44, 45, 79 (Ind. 1867) . . .  172
Brevier Legislative Reports 80, 88, 89, 90 .................. 173
Cal. Ass. J., 17tli Sess. 611 (1867-68)............................ 185
Cal. Sen. J., 17th Sess. 611, 676 (1867-68).................. 185
Conn. House J. 410 (1866)............................................ 159
Conn. House J. 595 (1868).............................................  159

PAGE



XVII

Conn. Sen. J. 374 (1866)................. ..............................  159
Conn. Sen. J. 247-48 (1868)........................................... 159
Debates of the California Constitutional Convention

of 1873 (1880) .................................................... .. 185
Documents of the Convention of the State of New

York, 1867-68, Doc. No. 15 (1868) ...........................  170
Del. House J. 88 (1867) ................................................. 183
Del. Sen. J. 76 (1867) ....................................................  183
Ga. House J. 88, 307, 1065 (1870) .............................151, 183
Ga. Sen. J , Pt. II 289 (1870 )....................................... 151
Iowa House J. 132 (1868) ........................... .................  181
Iowa Sen. J. 265 (1868) ................................................. 181
111. House J. 40, 154 (1867) ......................................... 174
111. Sen. J. 40, 76 (1867)............................................... 174
Ind. Doc. J. Part I 21 (1867)......................................... 172
Ind. House J. 100-101 (1867) ....................................... 172
Ind. House J. 184 (1867) ............................................. 173
Ind. Sen. J. 79 (1867) ......................... ........................... 172
Journal of the Constitutional Convention of Georgia

151, 69, 479, 558, 1867-1868 ..................................     150
Journal of the Louisiana Constitutional Convention

1898 ............................................................................... 60
Journal of the Mississippi Constitutional Convention

of 1890 .....................................................................59,60,154
Journal of the Constitutional Convention of the State 

of Illinois, Convened at Springfield, December 13,
1869 (1869) ..................................................................  174

Journal of the South Carolina Convention 1895 ........ 60
Journal of the Texas Constitutional Convention, 1875 56
Journal of the Virginia Constitutional Convention

1867-68 (1868) ........................................................... 152,153
Journal of the Virginia Constitutional Convention

1901-1902 .........    59
Kan. Sen. J. 43, 76,128 (1867).......................................  179
Kan. House J. 62, 79 (1867) .........................................  179
Ky.Sen. J. 63 (1867)....................................................... 184
Ky. House J. 60 (1867) ................................................. 184

PAGE



XV111

Mass. House Doc. No. 149, 23, 24, 25 (1867)................ 161
Mass. Leg. Doc., Sen. Doc. No. 25 (1867 ).................... 162
Md. Sen. J. 808 (1867) ..................................................  183
Md. House J. 1141 (1867) ............................................. 183
Mich. House J. 181 (1867)............................................. 175
Mich. Sen. J. 125,162 (1867).........................................  175
Minn. Exec. Doc. 25, 26 (1866) ...................................  180
Minn. House J. 26 (1866) ............................................. 180
Minn. Sen. J. 22, 23 (1866) ........................................... 180
Minutes of the Assembly 309, 743 (N. J. 1868).......... 168
Minutes of the Assembly, Extra Session 8 (N. J.

1866) ......................... ..................................................  167
Nebr. House J., 12th Terr. Sess. 99,105 (1867 ).......... 178
Nebr. House J. 148 (1867) ...........................................  178
Nebr. Sen. J. 174 (1867)................................................. 178
Nev. Ass. J. 25 (1 8 67 )................................................... 180
Nev. Sen. J. 9, 47 (1867 )........ .............................. 180
N. H. House J. 137,174 (1866) .....................................  162
N. H. House J. 176, 231-33 (1866) ...............................  163
N. H. Sen. J. 70, 94 (1866).............................................  163
N. J. Sen. J. 198, 249, 356 (1868 ).................................  168
N. J. Sen. J., Extra Sess. 14 (1866 ).............................  167
N. Y. Ass. J. 13, 77 (1867) .........................................  169
N. Y. Sen. J. 6, 33 (1867) ...........................................  169
Official Journal of the Constitutional Convention of 

the State of Alabama 1867-1868, 237, 242 (1869) ..  149
Official Journal of the Proceedings for Framing a 

Constitution for Louisiana, 1867-1868 (1868) . . . .  147
Ohio Exec. Doc. Part I 282 (1867) .............................  171
Ohio House J. 13 (1867) .............................................  171
Ohio Sen. J. 9 (1867) ..................................................... 171
Ore. House J. 273 (1868) ...........................................  181
Ore. Sen. J. 25, 34-36 (1866) .....................................  181
Ore. Sen. J. 271-272 (1868) .........................................  181
2 Pa. Leg. Rec. app. I ll , XVI, X X II (1867) ........  165
2 Pa. Leg. Rec. app. L X X X IV  (1867).........................  166
Pa. Sen. J. 16 (1867) ................................................... 161

PAGE



XIX
PAGE

167Pa. Sen. J. (1881) ........................................................
Proceedings and Debates of the Constitutional Con­

vention of the State of New York 1867-68 (1868) 169
Proceedings of the South Carolina Constitutional 

Convention of 1868 Held at Charleston, S. C., Be­
ginning January 14, and ending March 17, 1868,
654-900 (1868) ............................................................  147

Report of the Proceedings and Debates of the Consti­
tutional Convention, State of Virginia, Richmond,
June 12, 1901-June 26, 1902 (1906) .........................  63

Report of Committee on Education, R. I. Pub. Doc.
No. 4 (1896) ................................................................  160

Report of the Committee on Education, Mass. House
Doc. No. 167 (1855) ................................................. 73,160

2 Reports Made to the General Assembly at Its
Twenty-Fifth Session (111. 1866) .........................  173

S. C. House J. Spec. Sess. 51 (1868) .........................  148
Tenn. House J., called Sess. 24, 26, 38 (1866) .......... 156
Tenn. Sen. J. called Sess. 41, 42 (1866) .................  156
Va. House J. 84 (1831-1832) .....................................  52
Vt. House J. 33, 139 (1866) ......................................... 164
Vt. Sen. J. 28, 75 (1866) ............................................... 164
Wis. Ass. J. 618 (1863) ............................................... 176
Wis. Ass. J. 96, 98, 32, 33, 224-226, 393 (1867 ).......... 176
Wis. House J. 33 (1867) ............................................. 176
Wis. Sen. J. 119, 149 (1867) .......................................  176

Congressional Debates and Reports

3 Cong. Deb. 555 (1826) ............................................... 210
Cong. Globe, 34th Cong., 1st Sess. App. (1856) 124,
295-296, 553-557, 644 ....................................................... 229
Cong. Globe, 34th Cong., 3rd Sess. App. 135-140

(1857) ................................................   230
Cong. Globe, 35th Cong., 1st Sess. 402 (1858) .......... 230
Cong. Globe, 35th Cong., 2nd Sess. 981-985 (1859) . . .  234



XX

Cong. Globe, 37th Cong., 2nd Sess. 1639 (1862) . . . .  77
Cong. Globe, 37th Cong., 2nd Sess. 1642 (1862) . . . .  77
Cong. Globe, 38th Cong., 1st Sess. (1864):

553, 817 ....................................................................  78
1156 ...........................  98
1158 ...........................    78
3132, 3133 .................................................................  78

Cong. Globe, 39th Cong., 1st Sess. (1865-66):
2 ................................................................................  7,80
39-40 .........................................................................  79
69... ..............................................................................  81
74 .............................................................................. 94
75 .................................................................   94
183 ............................................................................ 88
217.............................................................................. 142
240 ............................................................................ 118
372 ..........................................................   99
474 ............................................................................  83
475 ............................................................................. 83,210
500 ff...........................................................................  84
500 ............................................................................  84
504 ............................................................................ 85
541.............................................................................. 82
570 ......................................................   85
630 ............................................................................. 87
813 .............................................................................. 104
1063 ..........................................................................  94
1121 ..........................................................................86,102
1171 ...........................................................................  86
1270 ..........................................................................  218
1291............................................................................  87
1291, 1293, 2461-2462 .............................................  99
1294 ..........................................................................  87
1835 ............................................................................  89
1836 ..........................................................................  89

PAGE



XXI

Cong. Globe, 39th Cong., 1st Sess.:
2459, 2462, 2498, 2506, 2896 ................................. 108,113
2459, 2462, 2498, 2502 ............................................. 112
2455 ........................................................................... 114
2537 .......................................................................... 113
2766 ........................................................................... 115
2940 .......................................................................... 116
2961 .......................................................................... 116
2896 ..........................................................................  97
3148 .......................................................................... 94
4275-4276 ....................................   101

Cong. Globe, 39th Cong., 1st Sess. App. (1866):
71 ............................................................................... 82
134  103,105
1094 ..........................................................................  106
1095 ........................................................................... 106
2538 .......................................................................... 103

Cong. Globe, 39th Cong., 2nd Sess. 472 (1867 ).......... 141
Cong. Globe, 40th Cong., 1st Sess. 2462 (1868).......... 97
Cong. Globe, 40th Cong., 2nd Sess. 2748 (1868) . . .  .100,101 
Cong. Globe, 42nd Cong., 2nd Sess. (1871):

244 ............................................................................ 127
384 ....................................................    127
760, 764 ...................................................................127,128
913, 919, 929 .......................................................... 128,129
1582 .......................................................................... 129
3181 ..........................................................................  129
3189, 3190 ................................................................  130
3191, 3192 ................................................................  131
3195 ..............................................   130
3256 ..........................................................................  130
3258 ..........................................................................  130
3264-65 ....................................................................  131
3266 ...........................................................................  131
3268 ...........................................................................  131

Cong. Globe, 42nd Cong., 2nd Sess. (1871):
3270

PAGE

131



2 Cong. Rec. (1873-74):
3 1 8 ............................................................................. 132
412 ff...........................................................................  133
2, 383 ff....................................................................    134
3451-3455, 4116, 4173 ............................................... 135
4089, 4154, 4159, 4167 ............................................. 137
4151, 4153-54 ..........................................................  136
4171, 4176 ................................................................  138
4167 ........................................................................... 100

5 Cong. Rec. 979, 980 (1875) ....................................... 139
H. R. Rep. No. 691, 24th Cong., 1st Sess. (1836)....... 211
H. R. Rep. No. 80, 27th Cong., 3rd Sess. (1843).......  210
Report of the Joint Committee on Reconstruction,

39th Cong., 1st Sess. Pt. IV, 135 (1866 ).................  123

Other Authorities

Address of the Conservative Members of the Late
State Convention to the Voters of Virginia (1868) 153

Annual Proceedings and Reports, American Anti- 
Slavery Society, Vols. 1-6 (1833-1839) ....206,207,213 

Annual Report of the State Superintendent of Schools
(N. J. 1868) ................................................................  167

Annual Report of the State Superintendent of Public
Instruction (N. Y. 1866) .........................................  169

Barnes, The Anti-Slavery Impulse, 1830-1844 (1933)
205, 211, 221

Bartlett, From Slave to Citizen (unpub. ms., pub. ex­
pected in Dec. 1953) .................................................  159

Becker, The Declaration of Independence (1926) . . . .  201
Birney, James G., Birney and His Times (1890) . . . .  205
Birney, James G., Narrative of the Late Riotous 

Proceedings Against the Liberty of the Press in
Cincinnatti (1836) ..................................................... 213

Blose and Jaracz, Biennial Survey of Education in the
United States (1949-50) (1952) .............................  64

Boston Daily Advertiser, January 5,1867 .................. 161

x x i i

PAGE



XX111

Boston Daily Advertiser, March 12, 1867; March 14,
1867; March 21, 1867 ................................................  162

Boudin, Truth and Fiction About the Fourteenth
Amendment, 16 N. Y. U. L. Q. Rev. (1938) ..........93, 200

Bowers, The Tragic Era (1929) ................................. 94,100
3 Brennan, Biographical Encyclopedia of Ohio (1884) 227
Brownlee, New Day Ascending (1946) .....................  55
Bruce, The Plantation Negro as a Free Man: Obser­

vations on his Character, Conditions, and Prospects
in Virginia (1889) ....................................................  60

Burgess, The Middle Period (1897) ...........................  210
Cable, The Negro Question (1890) .............................  55
Calhoun, The Works of John C. Calhoun (Cralle ed.

1854-1855) ....................................................................  203
Carleton, The Conservative South—A Political Myth

22 Va. Q. Rev. 179 (1946) .........................................  62
Carroll, The Negro A Beast (1908) .............................  60
Carroll, The Tempter of Eve, or the Criminality of 

Man’s Social, Political and Religious Equality With 
the Negro, and the Amalgamation to Which These
Crimes Inevitably Lead (1902) ................................ 60

Cartwright, Diseases and Peculiarities of the Negro
Race, 11 DeBow’s Rev. 64 (1851) ............................ 51

Cartwright, Diseases and Peculiarities of the Negro 
Race, 2 DeBow, The Industrial Resources, etc., of
the Southern and Western States (1852) .............. 51

Cartwright, Essays, Being Inductions Drawn From 
the Baconian Philosophy Proving the Truth of the 
Bible and the Justice and Benevolence of the 
Decree Dooming Canaan to be a Servant of Serv­
ants (1843) ................................................................  51

Cliadbourne, A History of Education in Maine (1936) 160
Channing, History of the United (1921) ...................... 52
Charleston Daily News, July 10, 1868 .....................  148
Charlotte Western Democrat, March 24, 1868; April 

17, 1868 .........................................................................   146

PAGE



XXIV

Chase, Speech in the Case of the Colored Woman, 
Matilda Who Was Brought Before the Court of 
Common Pleas of Hamilton Co., Ohio, by Writ of
Habeas Corpus, March 11, 1837 (1837) .............. 206

Christensen, The Grand Old Man of Oregon: The Life
of George H. Williams (1939) .................................  96

Cloud, Education in California (1952) .....................  185
Comment, A New Trend in Private Colleges, 6 New

South 1 (1951) ............................................................  49
Comment, Some Progress in Elimination of Discrimi­

nation in Higher Education, 19 J. Neg. Ed. 4 (1950) 49
Comment, The Courts and Racial Integration in Edu­

cation, 21 J. Neg. Ed. 3 (1952) .............................  49
Comment, 22 J. Neg. Ed. 95 (1953) .............................  193
Commercial, March 30, 1866 ......................................... 89
Conkling, Life and Letters of Roscoe Conkling (1869) 100
Corwin, National Power and State Interposition 1787-

1861, 10 Mich. L. Rev. 535 (1912) .........................  211
Corwin, The ‘ Higher Law’ Background of American 

Constitutional Law, 42 Harv. L. Rev. 149, 365
(1928)............................................................................ 201

Coulter, The South During Reconstruction (1947) 54
Craven, The Coming of the Civil War (1 9 43 ).......... 212
2 Crosskey, Politics and the Constitution in the His­

tory of the United States (1953 ).............................  200
Cubberly, A Brief History of Education (1920) . . . .  120
Cubberly, Public Education in the United States

(1919) ...........................................................................  122
Dabney, Universal Education in the South (1936) 148,153 
Daily Arkansas Gazette, March 15, 1868, March 19,

1868, April 2, 1868 ..................................................... 143
Daily Arksanas Gazette, April 10, 1868 .....................  144
Daily State Journal, February 20, 1870 .................  151
Daily Wisconsin Union, February 7, 1867 .................  177
DeBow, The Interest in Slavery of the Southern Non-

Slaveholder (1860) ..................................................... 123
Des Moines Iowa State Register, January 29, 1868; 

February 19, 1868 ..................................................... 182

PAGE



XXV

Dew, Review of the Debates in the Virginia Legisla­
ture of 1831-32, The Pro-Slavery Argument 442

PAGE

(1853)............................................................................ 52
Diary and Correspondence of Salmon P. Chase, 2 

Ann. Rep. Am. Hist. Assn. 188 (1902) .................  73
1 Diet. Am. Biog 389 (1928) ..................................... 227
2 Diet. Am. Biog. 278 (1929) ....................................  99
2 Diet. Am. Biog. 374 (1929) .................................... 226
2 Diet. Am. Biog. 489 (1929) ....................................  227
6 Diet. Am. Biog. 348 (1931) ....................................  227
6 Diet. Am. Biog. 349 (1931) .....................................  95
7 Diet. Am. Biog. 631 (1931) .....................................  95
7 Diet. Am. Biog. 632 (1931) .....................................  95
7 Diet. Am. Biog. 260 (1931) .....................................  226
8 Diet. Am. Biog. 310 (1932) ...................................  96
10 Diet. Am. Biog. 113 (1933).......................................  98
11 Diet. Am. Biog. 52 (1933) .....................................133, 227
11 Diet. Am. Biog. 389 1933) .....................................  227
12 Diet. Am. Biog. 240 (1933) .....................................  226
13 Diet. Am. Biog. 198 (1934) .................................  227
17 Diet. Am. Biog. 620 (1935) ................................  226
17 Diet. Am. Biog. 270 (1935) .....................................  226
18 Diet. Am. Biog. 208 (1936) .....................................  227
19 Diet. Am. Biog. 303 (1936) .....................................  226
19 Diet. Am. Biog. 504 (1936) .....................................  102
20 Diet. Am. Biog. 322 (1936) .....................................  227
Dubuque Weekly Herald, January 30, 1867 .............. 182
Dumond, The Antislavery Origins of the Civil War

(1938) .........................................................................212,221
Eaton, Special Report to the United States Commis­

sioner of Education, Report of the U. S. Coirimr.
of Educ. to the Secy, of the Int. (1871 ).................. 144

Eaton, Freedom of Thought in the Old South (1940) 211
Edwards and Richey, The School in the American

Social Order (1947) ..................................................121,122
Pairman, Does the Fourteenth Amendment Incorpo­

rate the Bill of Rights? The Original Understand­
ing, 2 Stan. L. Rev. 5 (1949) ................................. 2 0 0



XXVI

Fay, The History of Education in Louisiana, U. S.
Bureau of Education circular no. 1 (1898) . . . .  149

Fayetteville News, April 14, 1868; June 2, 1868 . . . .  146
2 Fessenden, Life and Public Services of William Pitt

Fessenden (1931) ....................................................  95
Flack, The Adoption of the Fourteenth Amendment

(1908)  90,138,185
Flakes Daily Bulletin, March 3, 1870; March 13, 1870 152
Fleming, Documentary History of Reconstruction,

1865-1906 (1906) ........................................................  79
Frank and Munro, The Original Understanding of 

“ Equal Protection of the Laws” , 50 Col. L. Rev.
131 (1950) ................................................. 93,96,97,98,99,

100, 101, 200
Franklin, From Slavery to Freedom: A History of

American Negroes (1947) .....................................  51
Franklin, The Free Negro in North Carolina, 1790-

1860 (1943) ................................................................  52
Franklin, The Enslavement of Free Negroes in North

Carolina, 29 J. Neg. Hist. 401 (1944) ...................  52
Garner, Reconstruction in Mississippi (1901) ............ 154
Goodell, View of American Constitutional Law in Its

B earin g  U pon  A m erican  S lavery  (1 8 44 ). 221
Graham, The “ Conspiracy Theory”  of the Four­

teenth Amendment:
47 Yale L. J. 371 (1938).........................................99, 200
48 Yale L. J. 171 (1938) .........................................  200

Graham, The Early Antislavery Backgrounds of the
Fourteenth Amendment, 1950 Wis. L. Rev. 479,
610 .......................................................... 99,199,201,202,203

213, 214, 218, 228
Greene and Woodson, The Negro Wage Earner

(1930) ...........................................................................  52
Greensboro Times, April 2, 1868; April 16, 1868 . . . .  146
Hamer, Great Britain, The United States and the 

Negro Seaman Acts, 1822-1848, 1 J. of So. Hist. 1
(1935) ...........................................................................  210

Hamilton, Property According to Locke, 41 Yale 
L. J. 864 (1932) ...........................................................

PAGE

201



XXV11

Harper’s Memoir on Slavery, The Pro-Slavery
Argument 26-98 (1835) .................................... 51

Helper, The Impending Crisis of the South (1863).. 53
Herbert, et al., Why the Solid South? Or Recon­

struction and Its Results (1890) .............................  60
Jenkins, Pro-Slavery Thought in the Old South

(1935) ................................................................51,52,53,211
Johnson, The Ideology of White Supremacy, 1876- 

1910 in Essays in Southern History Presented to 
Joseph Gregoire deRoulhac Hamilton 124 (Green
ed. 1949) ....................................................... 50,51,59,61,64

Johnson, The Negro in American Civilization
(1930) ........................................................................51,53,54

Jordan, Official Convention Manual (1874)................  167
Julian, The Life of Joshua R. Giddings (1892 )............ 224
Kelly and Harbison, The American Constitution, Its

Origin and Development (1948)...............................  93
Kendrick, Journal of the Joint Committee of Fifteen

on Reconstruction (1914) ................92, 95, 96, 97, 99,101,
102,107,109, 200, 225

Kennebec Journal, January 22,1867 ...........................  160
Key, Southern Politics in the State and Nation (1949) 58
Kirwan, Revolt of the Rednecks (1951)..................59, 60, 63
Knapp, New Jersey Politics During the Period of

Civil War and Reconstruction (1924 ).....................  168
Knight, Influence of Reconstruction on Education

(1913) ..........................................................................  145
Knight, Public Education in the South (1922 )..........55,144
Lee and Kramer, Racial Inclusion in Church-Related 

Colleges in the South, 22 J. Neg. Ed. 22 (1953) . . .  49
Letters of James G. Birney, 1831-1857, 2 Yols.

(Dumond, ed. 1938) ..........................................205,213,214,
221,226

Letters of Theodore Dwight Weld, Angelina Grimke 
Weld and Sarah Grimke (1822-1844), 2 Vols.
(Barnes and Dumond eds. 1934)................... 205, 207, 211,

220, 226, 227
Lewellen, Political Ideas of James W. Grimes, 42 

Iowa Hist. & Pol. 339 (1944)

PAGE

95



Lewinson, Race, Class and Party (1932)...................  62
Locke, Second Treatise on Government (1698 )........  201
Log-an, The Negro in American Life and Thought:

The Nadir 1877-1901 (To be published by the Dial
Press early in 1954) ................................................. 61

McCarron, Trial of Prudence Crandall, 12 Conn.
Mag. 225 (1908) ............................................................ 208

McLaughlin, Constitutional History of the United
States (1935) ................................................................ 210

McLaughlin, The Court, The Corporation and Conk-
ling, 46 Am. Hist. Rev. 45 (1940) .........................  200

McPherson, Political History of United States Dur­
ing Reconstruction (1880) .....................................  79

McPherson’s Scrapbook, The Civil Rights B il l .......... 89
Mellen, An Argument on the Unconstitutionality of

Slavery (1841) ................................................................ 221
Messages and Proclamation of the Governors of 

Nebraska, collected in Publications of the Nebraska
Historical Society (1942) .........................................  178

Moon, The Balance of Power—The Negro Vote (1948) 62
2 Moore, Digest of International Law 358 (1906) . . 220
Moore, Notes on the History of Slavery in Massa­

chusetts (1866) ......................................................... 202,203
Morse, The Development of Free Schools in the 

United States as Illustrated by Connecticut and
Michigan (1918) ......................................................... 159

Myrdal, An American Dilemma (1944) .................. 203
Nashville Dispatch, July 12,1866 .................................  156
Nashville Dispatch, July 25, 1866 .............................  157
Nason, Life and Public Services of Henry Wilson

(1876) ..........................................................................  71
National Intelligencer, April 16, 1866; May 16, 1866 89
Nebraska City News, August 26, 1867; September 4,

1867 ................................................................................  178
Nevins, The Ordeal of the Union (1949) ................212,221
Newark Daily Advertiser, October 25, 1866 ................ 168
New Haven Evening Register, June 17, 1868 .......... 159

x x v m

PAGE



XXIX

89
193

PAGE

N. Y. Herald, March 29, 1866; April 10, 1866 ..........
New York Times, August 19, 1953 .............................
Noble, A History of Public Schools in North Carolina

(1930) ........................................................................145,146
Note, 56 Harv. L. Rev. 1313 (1943) ...........................  196
Note, Grade School Segregation: The Latest Attack 

on Racial Discrimination, 61 Yale L. J. 730 (1951) 194
Nott, Two Lectures on the Natural History of the

Caucasion and Negro Races (1866)...........................  51
Nye, Fettered Freedom (1949) ................. 204, 208, 212, 221
Ohio Antislavery Society, Anniversary Proc., Vols.

1-5 (1836-1840) ..........................................................  206
Olcott, Two Lectures on the Subject of Slavery and

Abolition (1838) ........................................................  206
Omaha Weekly Republican, January 25,1867; Febru­

ary 8,1867 ....................................................................  178
Oregonian, The, September 14, 1866; September 21,

1866 .............................................................................. 181
Orr, History of Education in Georgia (1950) ........150,151
Our National Charters (Goodell ed. 1863) ................ 222
Page, The Negro: The Southerners’ Problem (1904) 60
Philanthropist, January 13, 1837; January 20, 1837;

January 27, 1837; March 10, 1837 ......................... 216, 217
Philips, American Negro Slavery, Documentary His­

tory of American Industrial Society-Plantation
and Frontier Documents (1910) ..............................  53

Porter, A  History of Suffrage in the United States
(1918) ..........................................................................  52

Pound, Appellate Procedure in Civil Cases (1941) .. 196
President’s Commission on Higher Education, Higher 

Education For American Democracy (1947) . . . .  196
Proceedings of the Ohio Anti-Slavery Convention

Held at Putnam, Api’il 22-24, 1835 (1835) .............  209
Pro-Slavery Argument, as Maintained by the Most 

Distinguished Writers of the Southern States, 
the (1853) 203



XXX

PAGE

60Randle, Characteristics of the Southern Negro (1910) 
Report of the Arguments of Counsel in the Case of 

Prudence Crandall, Plfff. in error vs. State of Con­
necticut, Before the Supreme Court of Errors, at
Their Session at Brooklyn, July Term 1834 .......... 208

Report of the Indiana Department of Public Instruc­
tion (1867-68) ...............................................................  163

Report of the United States Commission of Educa­
tion, 1867-68 (1868) ........................................................ 156

Reynolds, Portland Public Schools, 1875, 33 Ore.
Hist. Q. 344 (1932) ........................................................  181

Richmond Enquirer, March 31,1868 ............................... 152
Rowland, A Mississippi View of Relations in the 

South, A Paper Read Before the Alumni Associa­
tion of the University of Mississippi, June 3, 1902
(1903) ..........................................  60

Salter, Life of James W. Grimes (1876).....................  95
Sewell, The Selling of Joseph (1700) ............................  202
Schaffter, The Iowa “ Civil Rights A ct” , 14 Iowa L.

Rev. 63 (1928) ................................................................ 182
Shugg, Negro Voting in the Ante-Bellum South, 21

J. Neg. Hist. 357 (1936) ........................................... 52
Simkins, Pitchfork Ben Tillman (1944) ....................... 59, 60
Simkins, The Tillman Movement in South Carolina

(1926) .......................................................................... 53
Simms, “ The Morals of Slavery” , The Pro-Slavery

Argument (1835) ....................................................... 51
Sixth Biennial Report of the Superintendent of Public

Instructions of the State of Illinois 1865-66 .......... 173
Smith, Appeals of the Privy Council From American

Plantations (1950) ..................................................... 196
Smith, The Liberty and Free Soil Parties in the

Northwest (1897) ..................................................... 223,224
Spain, The Political Theory of John C. Calhoun

(1951)     203
Special Report of the Commissioner of Education,

Legal Status of the Colored Population in Respect 
to Schools and Education (1871) .............................  176



XXXI

Stanwood, History of the Presidency (1904) .. .223, 224, 225
Staples, Reconstruction in Arkansas (1923).............. 143
State Documents on Federal Relations: The States

and the United States (Ames ed. 1904).................. 210
Stephenson, Race Distinctions in American Law

(1910) ........................................................................... 56
Stiener, History of Slavery in Connecticut (1893).. 208
Stone, Studies in the American Race Problem (1908) 60
2 Sumner, Work of Charles Sumner (1875)................ 71
Sydnor, Development of Southern Sectionalism 1819-

1848 (1948) ................................................................  211
tenBroek, The Antislavery Origins of the Fourteenth

Amendment (1951) ........................................68,76,200,222
Weeks, History of Negro Suffrage in the South, 9

Pol. Sc. Q. 671 (1894) ................................................  52
Weld, Slavery As It Is (1839) ..................................... 205
Weld, The Bible Against Slavery (1837).....................  205
Weld, The Power of Congress Over Slavery in the

District of Columbia (1838) .....................................  205
Weston, The Progress of Slavery in the United 

States (1859) ..............................................................  53
1 Wigmore, Evidence (3 ed. 1940) .............................  196
William, Six Years in the United States Senate,

Daily Oregonian Dec. 3, 10, 1905 .............................  96
Wilmington Morning Star, March 27, 1868; March

28, 1868 ........................................................................  146
Wilson, 3 History of the Rise and Fall of the Slave

Power in America (1877) ..........................................98,210
Wiltsie, John C. Calhoun, Nullifier (1949) ................ 211
Wisconsin State Journal, February 7, 1867 .............. 177
Woodburn, The Life of Thaddeus Stevens (1913) . . .  94
Woodward, Origins of the New South (1951) . . .  .58, 65,123 
Woodward, Reunion and Reaction: The Compromise 

of 1877 and the End of Reconstruction (1951) . . . .  57
2 Works of Charles Sumner (1875).............................  71
W. P. A. Adult Education Project, History of Educa­

tion in Portland (1937) ............................................. 181

PAGE



Thomas, Theodore Weld (1950) .................................  205
2 Thorpe, The Federal and State Constitutions, 

Colonial Charters, and Other Organic Laws
(1909)  150,203

Tiffany, A  Treatise on the Unconstitutionality of
American Slavery (1849) ......................................... 221

Trenton Daily True American, November 3, 1866 . . .  168
Trenton State Gazette, November 3, 1866 .................. 168
Tuckerman, William Jay and the Constitutional 

Movement for the Abolition of Slavery (1893) . . . .  210
Vance, Human Factors in Cotton Culture (1926) . . .  53
Van Evrie, Negroes and Negro Slavery (1861) . . . .  51
Van Evrie, Negroes and Negro “ Slavery” ; The 

First an Inferior Race—The Latter Its Normal
Condition (1853) .......................................................  51

Van Evrie, Subgenation: The Theory of the Normal
Relation of the Races (1864) ...................................  51

Von Holst, Constitutional History 1828-1846 (1881) 208
Warden, Life of Chase (1874) .....................................  224
Warner, New Haven Negroes (1940 ).........................  159
Warsoff, Equality and the Law (1938).......................  200

XXX11
PAGE



IN THE

(Emirt of tlj? lHm t&  States
October Term, 1953

---------------------- o----------------------
No. 1

Oliver B row n , et al., Appellants,
vs.

B oard of E ducation of T opeka, et al., Appellees.

No. 2

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

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

No. 4

D orothy E . D avis, et al., Appellants,
vs.

County  S chool B oard of P rince E dward Co u n ty , 
V irginia, et al., Appellees.

No. 10

F rancis B . Gebhart, et al., Petitioners,
vs.

E th el  L ouise B elton , et al., Respondents.

A ppeals F rom th e  U nited  S tates D istrict Courts for 
the D istrict of K ansas, th e  E astern D istrict of 
South  Carolina and th e  E astern D istrict of V irginia, 
and on P etition for a W rit of Certiorari to the  

S upreme Court of D elaware , R espectively. 
----------------------------o-----------------------

BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 4 AND 
FOR RESPONDENTS IN NO. 10 ON REARGUMENT



9

Explanatory Statement

One brief is being filed in these four cases. They funda­
mentally involve the same questions and issues. As an aid 
to the Court, we are restating below a full history of each 
case.

NO. 1

Opinion Below

The opinion of the statutory three-judge District Court 
for the District of Kansas (R. 238-244) is reported at 98 
F. Supp. 797.

Jurisdiction

The judgment of the court below was entered on August 
3,1951 (R. 247). On October 1,1951, appellants filed a peti­
tion for appeal (R. 248), and an order allowing the appeal 
was entered (R. 250). Probable jurisdiction was noted on 
June 9, 1952 (R. 254). Jurisdiction of this Court rests on 
Title 28, United States Code, <§§ 1253 and 2101(b).

Statement of the Case

Appellants are Negro students eligible to attend and 
attending elementary schools in Topeka, Kansas, and their 
parents (R. 3-4). Appellees are state officers empowered 
to maintain and operate the public schools of Topeka, 
Kansas (R. 4-5). On March 22, 1951, appellants com­
menced this class action against appellees to restrain them 
from enforcing and executing that part of Chapter 72- 
1724, General Statutes of Kansas, 1949, which permitted 
racial segregation in public elementary schools, on the 
ground that it violated the Fourteenth Amendment by de­
priving the infant appellants of equal educational oppor­
tunities (R. 2-7), and for a judgment declaring that the



3

practice of appellees under said statute of maintaining 
and operating racially segregated elementary schools is 
in violation of the Fourteenth Amendment.

Appellees admitted in their answer that they acted pur­
suant to the statute and that, solely because of their color, 
the infant appellants were not eligible to attend any of 
the elementary schools maintained exclusively for white 
students (R. 12). The Attorney General of the State of 
Kansas filed a separate answer specifically to defend the 
constitutional validity of the statute (R. 14).

The court below was convened in accordance with Title 
28, United States Code, § 2284, and, on June 25-26, a trial 
on the merits was held (R. 63 et seq.). On August 3,1951, the 
court below filed its opinion (R. 238-244), findings of fact 
(R. 244-246) and conclusions of law (R. 246-247) and en­
tered a final judgment denying the injunctive relief sought 
(R, 247).

Specification of Errors

The court below erred:
1. In refusing to grant appellants’ application for a 

permanent injunction to restrain appellees from acting 
pursuant to the statute under which they are maintaining 
separate public elementary schools for Negro children, 
solely because of their race and color.

2. In refusing to hold that the State of Kansas is 
without authority to promulgate the statute because it 
enforces a classification based upon race and color which 
is violative of the Constitution of the United States.

3. In refusing to enter judgment in favor of appellants 
after finding that enforced attendance at racially segre­
gated elementary schools was detrimental and deprived 
them of educational opportunities equal to those available 
to white children.



4

NO. 2

Opinions Below

The majority and dissenting opinions of the statutory 
three-judge District Court for the Eastern District of 
South Carolina on the first hearing (R. 176-209) are re­
ported in 98 F. Supp. 529-548. The opinion on the second 
hearing (R. 301-306) is reported in 103 F. Supp. 920-923.

Jurisdiction

The judgment of the court below was entered on March 
13, 1952 (R. 306). A petition for appeal was filed below 
and allowed on May 10, 1952 (R. 309). Probable jurisdic­
tion was noted on June 9, 1952 (R. 316). Jurisdiction of 
this Court rests on Title 28, United States Code, §§ 1253 
and 2101(b).

Statement of the Case

Appellants are Negro children who reside in and are 
eligible to attend the public schools of School District No. 
22, Clarendon County, South Carolina, and their respec­
tive parents and guardians (R. 4-5). Appellees are the 
public school officials of said district who, as officers of the 
state, maintain and operate the public schools of that dis­
trict (R. 5-6). On December 22, 1950, appellants com­
menced this class action against appellees to enjoin en­
forcement of Article XI, Section 7, of the Constitution of 
South Carolina and Section 5377 of the Code of Laws of 
South Carolina of 1942, which require the segregation of 
races in public schools, on the ground that they deny to 
appellants the equal protection of the laws secured by 
the Fourteenth Amendment, and for a judgment declaring 
that said laws violate the Fourteenth Amendment and are 
invalid (R. 2-11).



0

Appellees in their answer admitted adherence to the 
said constitutional and statutory provisions requiring 
racial segregation in public schools and asserted that such 
provisions were a reasonable exercise of the police powers 
of the state and, therefore, were valid (R. 13-17).

A three-judge District Court was convened, pursuant 
to Title 28, United States Code, §§ 2284, and on July 
25, 1951, a trial on the merits was held (R. 30 et seq.). On 
June 23, 1951, the court below filed its opinion (R. 176) 
and entered a final decree (R. 209): (1) upholding the
constitutional validity of the contested state constitutional 
and statutory provisions; (2) denying the injunctive relief 
which was sought; (3) requiring appellees to furnish to 
appellants educational facilities equal to those furnished 
to white students; and (4) requiring appellees within six 
months to file a report of action taken toward that end.

An appeal from this judgment was allowed by this 
Court on July 20, 1951. The report required by the de­
cree of the court below was filed on December 21, 1951, and 
subsequently forwarded to this Court. On January 28, 
1952, this Court vacated the judgment of the court below 
and remanded the case for the purpose of obtaining the 
views of the court below on the additional facts in the rec­
ord and to give it the opportunity to take such action as 
it might deem appropriate in light of the report. 342 U. S. 
350. Mr. Justice Black and Mr. Justice Douglas dis­
sented on the ground that the additional facts in the report 
were “ wholly irrelevant to the constitutional questions 
presented by the appeal to this Court” . 342 U. S. 350.

Pursuant to the mandate of this Court, a second trial 
was held in the court below on March 3, 1953 (R. 271), at 
which time the appellees filed an additional report show­
ing progress made since the filing of the original report 
(R. 273). On March 13, 1952, the court below filed its 
opinion (R. 301) and entered a final decree (R. 306) again 
upholding the validity of the contested constitutional and 
statutory provisions, denying the injunctive relief re-



quested and requiring appellees to afford to appellants 
educational facilities equal to those afforded to white stu­
dents.

Specification of Errors

The court below erred:
1. In refusing to enjoin the enforcement of the laws 

of South Carolina requiring racial segregation in the public 
schools of Clarendon County on the ground that these laws 
violate rights secured under the equal protection clause of 
the Fourteenth Amendment.

2. In refusing to grant to appellants immediate and 
effective relief against the unconstitutional practice of ex­
cluding appellants from an opportunity to share the public 
school facilities of Clarendon County on an equal basis 
with other students without regard to race or color.

3. In predicating its decision on the doctrine of Plessy 
v. Ferguson and in disregarding the rationale of Sweatt 
v. Painter and McLaurin v. Board of Regents.

NO. 4

Opinion Below

The opinion of the statutory three-judge District Court 
for the Eastern District of Virginia (R. 617-623) is reported 
at 103 F. Supp. 337-341.

Jurisdiction

The judgment of the court below was entered on March 
7, 1952 (R. 623). A  petition for appeal was filed below and 
allowed on May 5, 1952 (R. 625, 630, 683). Probable juris­
diction was noted on October 8, 1952. —U. S. —, 97 
L. ed. (Advance p. 27). Jurisdiction of this Court rests 
on Title 28, United States Code, §§ 1253 and 2101(b).



7

Statement of the Case

Appellants, high school students residing in Prince 
Edward County, Virginia, and their parents and guardians, 
brought a class action against appellees, the County School 
Board and the Division Superintendent of Schools on May 
23, 1951. The complaint (R. 5-30) alleged that said appel­
lees maintained separate public secondary schools for 
Negro and white children pursuant to Article IX, Section 
140 of the Constitution of Virginia, and Title 22, Chapter 
12, Article 1, section 22-221, of the Code of Virginia of 
1950; that the Negro school was inferior and unequal to 
the white schools; and that it was impossible for the infant 
appellants to secure educational opportunities or facilities 
equal to those afforded white children similarly situated 
as long as said appellees enforce said laws or pursued a 
policy of racial segregation. It sought a judgment declara­
tory of the invalidity of said laws as a denial of rights se­
cured by the due process and equal protection clauses of 
the Fourteenth Amendment, and an injunction restraining 
said appellees from enforcing said laws and from making 
any distinction based on race or color among children 
attending the secondary schools of the County.

Appellees admitted maintenance of said schools, enforce­
ment of said laws, and inequalities as to physical plant and 
equipment, but denied that the segregation violated the 
Constitution (R. 32-36). Appellee, the Commonwealth of 
Virginia, intervened (R. 37) and made the same admissions 
and defense (R. 37-39).

On March 7, 1952, a three-judge District Court found 
the Negro school inferior in plant, facilities, curricula and 
means of transportation (R. 622-623) and ordered appel­
lees forthwith to provide “ substantially”  equal curricula 
and transportation facilities and to “ proceed with all rea­
sonable diligence and dispatch to remove”  the existing 
inequality “ by building, furnishing and providing a high 
school building and facilities for Negro students”  (R. 624). 
It refused to enjoin enforcement of the constitutional and



8

statutory segregation provisions on the grounds: (1) that
appellants’ evidence as to the effects of educational segre­
gation did not overbalance appellees’, and that it accepted 
as “ apt and able precedent”  Briggs v. Elliott, 98 F. Supp. 
529 (E. D. S. C. 1951) and Carr v. Corning, 182 F. 2d 14 
(C. A. D. C. 1950) which “ refused to decree that segrega­
tion be abolished incontinently”  (R. 619); (2) that nulli­
fication of the segregation provisions was unwarranted in 
view of evidence that racial segregation was not based on 
prejudice or caprice but, rather, was “ one of the ways of 
life in Virginia”  (R. 620); (3) that segregation has begot­
ten greater opportunities for the Negro (R. 621); (4) that 
elimination of segregation would lessen interest in and 
financial support of public schools (R. 621); and (5) that, 
finding “ no hurt or harm to either race,”  it was not for 
the court “ to adjudge the policy as right or wrong”  (R. 
621-622).

Specification of Errors

The court below erred:
1. In refusing to enjoin the enforcement of Article 

IX, Section 140 of the Constitution of Virginia, and Title 
22, Chapter 12, Article 1, Section 22-221, of the Code of 
Virginia of 1950, upon the grounds that these laws violate 
rights secured by the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States.

2. In refusing to forthwith restrain appellees from 
using race as a factor in determining the assignment of 
public secondary educational facilities in Prince Edward 
County, Virginia, after it had found that appellants are 
denied equality of buildings, facilities, curricula and means 
of transportation in violation of the due process and equal 
protection clauses of the Fourteenth Amendment.

3. In refusing to hold that appellants are entitled to 
equality in all aspects of the public secondary educational



9

process, in addition to equality in physical facilities and 
curricula.

4. In issuing a decree ordering appellees to equalize 
secondary school facilities in the County where such decree 
cannot be effectively enforced without involving the court 
in the daily operation and supervision of schools.

NO. 10

Opinions Below

The opinion of the Chancellor of the State of Delaware 
(A. 338) is reported at 87 A. (2d) 862. The opinion of the 
Supreme Court of Delaware (R. 37) is reported at 91 A. 
(2d) 137.*

Jurisdiction

The judgment of the court below was entered on August 
28, 1952 (R. 37). On November 13, 1952 petition for writ 
of certiorari was filed herein. On November 20, 1952, 
respondents waived the filing of a brief in opposition to 
the petition for writ of certiorari and moved that, if cer­
tiorari were granted, the argument be advanced and heard 
immediately following argument in Nos. 8, 101 and 191. 
On November 24, 1952, the petition for writ of certiorari 
and motion to advance were granted. — U. S. — ; 97 L. ed. 
(Advance, p. 124). Jurisdiction of this Court rests upon 
Title 28, United States Code, § 1257(3).

* The record in this case consists of five separate parts: appendix 
to petitioners’ brief in the court below, the supplement thereto, appen­
dix to respondents’ brief in the court below, the supplement thereto, 
and the record of proceedings in the Supreme Court of Delaware. 
These will be referred to in respondents’ brief as follows:

Appendix to petitioners’ brief below will be indicated by A ; the 
supplement to the petitioners’ appendix below will be referred to as 
S A ; respondents’ appendix below will be referred to as R A ; the 
supplement to respondents’ appendix below will be referred to as 
RSA;  the record of proceedings in the Supreme Court of Delaware 
will be referred to as R.



10

Statement of the Case

No. 10 arises from two separate class actions filed in 
the Court of Chancery of the State of Delaware by Negro 
school children and their guardians seeking admittance 
of the children to two public schools maintained by peti­
tioners exclusively for white children in New Castle County, 
Delaware. In the courts below, plaintiffs prevailed, and 
they and members of their class are now attending the 
schools to which they sought admission, an application 
for stay of final order having been denied. (Brief of 
Respondents, No. 448, October Term, 1952, pp. 25-27). 
Thus, in this case, unlike the other school segregation cases 
now under consideration, plaintiffs are respondents in this 
Court. Nevertheless, they file their brief at this time along 
with appellants in Numbers 1, 2 and 4, because, on the 
fundamental issues, they take the same position as do those 
appellants, and because they believe that by so filing they 
will facilitate the Court’s consideration of the matters at 
bar.

The complaint (A 3-13) in one of the two cases from 
which No. 10 arises, alleged that respondents residing in 
the Claymont Special School District were refused admit­
tance to the Claymont High School maintained by peti­
tioner-members of the State Board of Education and mem­
bers of the Board of Education of the Claymont Special 
School District solely because of respondents’ color. Be­
cause of this, these respondents were compelled to attend 
Howard High School (RA 47), a public school for Negroes 
only, in Wilmington, Delaware. Howard High School is 
operated and controlled by the Corporate Board of Public 
Education in Wilmington, not a party to this case (A 314- 
15, 352; R 57, RA 203). The second complaint (A 14-30) 
out of which No. 448 arises alleged that respondent was 
excluded from Hockessin School No. 29, a public elementary 
school maintained for white children only, by petitioner- 
members of the State Board of Education and petitioner-



11

members of the Board of School Trustees of Hockessin 
School No. 29. Respondent and the class she represented at 
the time of the complaint, attended Hockessin School No. 
107, maintained solely for Negroes by the State Board of 
Education. Respondents in both complaints asserted that 
the aforesaid state-imposed racial segregation required by 
Par. 2631, Revised Code of Delaware, 1935, and Article X, 
Section 1 of the Constitution of Delaware: (1) compelled
them to attend schools substantially inferior to those for 
white children to which admittance was sought; and (2) 
injured their mental health, impeded their mental and per­
sonality development and made inferior their educational 
opportunity as compared with that offered by the state to 
white children similarly situated. Such treatment, respond­
ents asserted, is prohibited by the equal protection clause 
of the Fourteenth Amendment to the Constitution of the 
United States.

Petitioners’ answers (A  31-33, A  34-37) defended the 
exclusion: (1) upon mandatory constitutional and statu­
tory provisions of the State of Delaware which require 
separate public schools for white and colored children; and 
(2) upon the fact that the educational opportunities offered 
respondents were equal to those offered white children 
similarly situated.

The two cases were consolidated and tried before the 
Chancellor. In an opinion (A 348-356; 87 A. (2d) 862) 
filed on April 1, 1952, the Chancellor found as a fact that 
in “ our Delaware society”  segregation in education prac­
ticed by petitioners “ itself results in Negro children, as a 
class, receiving educational opportunities which are sub­
stantially inferior to those available to white children 
otherwise similarly situated.”  However, the Chancel­
lor denied respondents’ prayers for a judgment on this 
ground and refused to declare that the Delaware constitu­
tional and statutory provisions violated respondents’ right 
to equal protection. But the Chancellor did award respond­
ents the relief which they requested because other in­



1 2

equalities were found to exist. These included, in the high 
school, teacher training, pupil-teacher ratio, extra-curricu­
lar activities, physical plant and esthetic considerations, 
and time and distance involved in travel. As to the ele­
mentary schools in question, the court found the Negro 
facilities inferior in building and site, esthetic considera­
tions, teacher preparation and transportation facilities. A 
more detailed exposition of the facts upon which these find­
ings were based is set forth in respondents’ Brief in No. 
148, October Term, 1952, pp. 27-44.

The Chancellor, as stated above, ordered that respond­
ents be granted immediate relief in the only way that it 
was then available, that is, by admission to the superior 
facilities. On August 28, 1952, the Supreme Court of Dela­
ware affirmed. 91 A. (2d) 137. Its findings on some of the 
facts were somewhat different than the Chancellor’s but, 
on the whole, it agreed with him. Upholding the Chancel­
lor’s determination that the requested relief could not be 
granted because of the harmful psychological effect of 
racial segregation, it did not otherwise review his factual 
findings in this regard. Denying petitioners’ plea for time 
to equalize the facilities in question, the Supreme Court 
held that in the high school case: (1) a decree ordering
petitioners to equalize the facilities in question could have 
no effect on the legal entity having control of the Wilming­
ton public schools which was not a party to the cause; and 
(2) that the court did not see how it could supervise and 
control the expenditure of state funds in a matter com­
mitted to the administrative discretion of school authori­
ties. Finally, the court held that it could not issue a decree 
which would, in effect, deny to plaintiffs what it had held 
they rightfully deserved. As to the elementary school, 
the court also noted that defendants had not assumed the 
burden of showing to what extent remedial legislation 
had improved or could improve conditions in the future. 
Alluding to its antecedent discussion of the question of



13

relief for high school respondents, it affirmed the Chancel­
lor’s finding on this issue also.

Stay of the order was denied by the Chancellor and by 
the Supreme Court of Delaware (Brief of Respondents, 
No. 448, October Term, 1952, pp. 25-27) and respondents 
and members of their class are now enjoying their second 
year of equal educational opportunities under the decree.

This Court’s Order

These four cases were argued and submitted to the Court 
on December 9-11, 1952. Thereafter, on June 8, 1953, this 
Court entered its order for reargument, as follows, — U. S. 
— ; 97 L. ed. (Advance p. 956):

“ Each of these cases is ordered restored to the 
docket and is assigned for reargument on Monday, 
October 12, next. In their briefs and on oral argu­
ment counsel are requested to discuss particularly 
the following questions insofar as they are relevant 
to the respective cases:
“  1. What evidence is there that the Congress ivhich 
submitted and the State legislatures and conven­
tions ivhich ratified the Fourteenth Amendment con­
templated or did not contemplate, understood or 
did not understand, that it would abolish segrega­
tion in public schools?
“ 2. If neither the Congress in submitting nor the 
States in ratifying the Fourteenth Amendment un­
derstood that compliance with it would require the 
immediate abolition of segregation in public schools, 
was it nevertheless the understanding of the framers 
of the Amendment

“  (a) that future Congresses might, in the exercise 
of their power under Sec. 5 of the Amendment, 
abolish such segregation, or
“ (b) that it would be within the judicial power, in 
light of future conditions, to construe the Amend­
ment as abolishing such segregation of its own 
force?



14

“ 3. On the assumption that the answers to ques­
tions 2 (a) and (b) do not dispose of the issue, is it 
within the judicial power, in construing the Amend­
ment, to abolish segregation in public schoolsf
“ 4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment

“ (a) would, a decree necessarily folloiv providing 
that, within the limits set by normal geographic 
school districting, Negro children should forth­
with 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 segregated sys­
tems to a system not based on color distinctionsf

“ 5. On the assumption on which questions 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 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 general directions 
should the (decrees of this Court include and what 
procedures should the courts of first instance fol­
low in arriving at the specific terms of more de­
tailed decreesf

“ The Attorney General of the United States is in­
vited to take part in the oral argument and to file an 
additional brief if he so desires.”

On August 4,1953, upon motion of the Attorney General 
of the United States and without objection by the parties,



15

this Court entered its order postponing the date assigned 
for reargument of these cases until December 7, 1953.

Summary of Argument

These cases consolidated for argument before this Court 
present in different factual contexts essentially the same 
ultimate legal questions.

The substantive question common to all is whether a 
state can, consistently with the Constitution, exclude chil­
dren, solely on the ground that they are Negroes, from 
public schools which otherwise they would be qualified to 
attend. It is the thesis of this brief, submitted on behalf 
of the excluded children, that the answer to the question is 
in the negative: the Fourteenth Amendment prevents states 
from according differential treatment to American children 
on the basis of their color or race. Both the legal precedents 
and the judicial theories, discussed in Part I hereof, and the 
evidence concerning the intent of the framers of the Four­
teenth Amendment and the understanding of the Congress 
and the ratifying states, developed in Part II hereof, sup­
port this proposition.

Denying this thesis, the school authorities, relying in 
part on language originating in this Court’s opinion in 
Plessy v. Ferguson, 163 U. S. 537, urge that exclusion of 
Negroes, qua Negroes, from designated public schools is 
permissible when the excluded children are afforded admit­
tance to other schools especially reserved for Negroes, 
qua Negroes, if such schools are equal.

The procedural question common to all the cases is the 
role to be played, and the time-table to be followed, by this 
Court and the lower courts in directing an end to the 
challenged exclusion, in the event that this Court deter­
mines, with respect to the substantive question, that exclu­
sion of Negroes, qua Negroes, from public schools contra­
venes the Constitution.



16

The importance to our American democracy of the sub­
stantive question can hardly be overstated. The question 
is whether a nation founded on the proposition that “ all 
men are created equal”  is honoring its commitments to 
grant “ due process of law”  and “ the equal protection of 
the laws”  to all within its borders when it, or one of its 
constituent states, confers or denies benefits on the basis 
of color or race.

1. Distinctions drawn by state authorities on the basis 
of color or race violate the Fourteenth Amendment. Shel­
ley v. Kraemer, 334 U. S. 1; Buchanan v. Warley, 245 U. S. 
60. This has been held to be true even as to the conduct of 
public educational institutions. Sweatt v. Painter, 339 U. S. 
629; McLaurin v. Oklahoma State Regents, 339 U. S. 637. 
Whatever other purposes the Fourteenth Amendment may 
have had, it is indisputable that its primary purpose was 
to complete the emancipation provided by the Thirteenth 
Amendment by ensuring to the Negro equality before the 
law. The Slaughter-House Cases, 16 Wall. 36; Strauder 
v. West Virginia, 100 U. S. 303.

2. Even if the Fourteenth Amendment did not per se 
invalidate racial distinctions as a matter of law, the racial 
segregation challenged in the instant cases would run afoul 
of the conventional test established for application of the 
equal protection clause because the racial classifications 
here have no reasonable relation to any valid legislative 
purpose. See Quaker City Cab Co. v. Pennsylvania, 277 
U. S. 389; Truax v. Raich, 239 U. S. 33; Smith v. Cahoon, 
283 U. S. 553; Mayflower Farms v. Ten Eyck, 297 U. S. 266; 
Skinner v. Oklahoma, 316 U. S. 535. See also Tunstall v. 
Brotherhood of Locomotive Firemen, 323 U. S. 192; Steele 
v. Louisville & Nashville R. R. Co., 323 U. S. 192.

3. Appraisal of the facts requires rejection of the 
contention of the school authorities. The educational 
detriment involved in racially constricting a student’s 
associations has already been recognized by this Court.



17

Sweatt v. Painter, 339 U. S. 629; McLaurin v. Oklahoma 
State Regents, 339 U. S. 637.

4. The argument that the requirements of the Four­
teenth Amendment are met by providing alternative schools 
rests, finally, on reiteration of the separate but equal doc­
trine enunciated in Plessy v. Ferguson.

Were these ordinary cases, it might be enough to say 
that the Plessy case can be distinguished—that it involved 
only segregation in transportation. But these are not ordi­
nary cases, and in deference to their importance it seems 
more fitting to meet the Plessy doctrine head-on and to 
declare that doctrine erroneous.

Candor requires recognition that the plain purpose and 
effect of segregated education is to perpetuate an inferior 
status for Negroes which is America’s sorry heritage from 
slavery. But the primary purpose of the Fourteenth 
Amendment was to deprive the states of all power to per­
petuate such a caste system.

5. The first and second of the five questions propounded 
by this Court requested enlightment as to whether the 
Congress which submitted, and the state legislatures and 
conventions which ratified, the Fourteenth Amendment con­
templated or understood that it would prohibit segregation 
in public schools, either of its own force or through sub­
sequent legislative or judicial action. The evidence, both 
in Congress and in the legislatures of the ratifying states, 
reflects the substantial intent of the Amendment’s pro­
ponents and the substantial understanding of its opponents 
that the Fourteenth Amendment would, of its own force, 
proscribe all forms of state-imposed racial distinctions, thus 
necessarily including all racial segregation in public educa­
tion.

The Fourteenth Amendment was actually the culmina­
tion of the determined efforts of the Radical Republican 
majority in Congress to incorporate into our fundamental 
law the well-defined equalitarian principle of complete



18

equality for all without regard to race or color. The debates 
in the 39th Congress and succeeding Congresses clearly 
reveal the intention that the Fourteenth Amendment would 
work a revolutionary change in our state-federal relation­
ship by denying to the states the power to distinguish on 
the basis of race.

The Civil Rights Bill of 1866, as originally proposed, 
possessed scope sufficiently broad in the opinion of many 
Congressmen to entirely destroy all state legislation based 
on race. A great majority of the Republican Radicals— 
who later formulated the Fourteenth Amendment—under­
stood and intended that the Bill would prohibit segregated 
schools. Opponents of the measure shared this under­
standing. The scope of this legislation was narrowed be­
cause it was known that the Fourteenth Amendment was in 
process of preparation and would itself have scope exceed­
ing that of the original draft of the Civil Rights Bill.

6. The evidence makes clear that it was the intent of 
the proponents of the Fourteenth Amendment, and the sub­
stantial understanding of its opponents, that it would, of 
its own force, prohibit all state action predicated upon 
race or color. The intention of the framers with respect 
to any specific example of caste state action—in the instant 
cases, segregated education—cannot be determined solely 
on the basis of a tabulation of contemporaneous statements 
mentioning the specific practice. The framers were formu­
lating a constitutional provision setting broad standards for 
determination of the relationship of the state to the indi­
vidual. In the nature of things they could not list all the 
specific categories of existing and prospective state activity 
which were to come within the constitutional prohibitions. 
The broad general purpose of the Amendment— obliteration 
of race and color distinctions—is clearly established by the 
evidence. So far as there was consideration of the Amend­
ment’s impact upon the undeveloped educational systems 
then existing, both proponents and opponents of the Amend­



19

ment understood that it would proscribe all racial segrega­
tion in public education.

7. While the Amendment conferred upon Congress the 
power to enforce its prohibitions, members of the 39th 
Congress and those of subsequent Congresses made it clear 
that the framers understood and intended that the Four­
teenth Amendment was self-executing and particularly 
pointed out that the federal judiciary had authority to 
enforce its prohibitions without Congressional implementa­
tion.

8. The evidence as to the understanding of the states 
is equally convincing. Each of the eleven states that had 
seceded from the Union ratified the Amendment, and con­
currently eliminated racial distinctions from its laws, and 
adopted a constitution free of requirement or specific 
authorization of segregated schools. Many rejected pro­
posals for segregated schools, and none enacted a school 
segregation law until after readmission. The significance 
of these facts is manifest from the consideration that ten 
of these states, which were required, as a condition of 
readmission, to ratify the Amendment and to modify their 
constitutions and laws in conformity therewith, considered 
that the Amendment required them to remove all racial 
distinctions from their existing and prospective laws, in­
cluding those pertaining to public education.

Twenty-two of the twenty-six Union states also ratified 
the Amendment. Although unfettered by congressional 
surveillance, the overwhelming majority of the Union states 
acted with an understanding that it prohibited racially 
segregated schools and necessitated conformity of their 
school laws to secure consistency with that understanding.

9. In short, the historical evidence fully sustains this 
Court’s conclusion in the Slaughter Houses Cases, 16 Wall. 
61, 81, that the Fourteenth Amendment was designed to 
take from the states all power to enforce caste or class 
distinctions.



2 0

10. The Court in its fourth and fifth questions assumes 
that segregation is declared unconstitutional and inquires 
as to whether relief should be granted immediately or 
gradually. Appellants, recognizing the possibility of delay 
of a purely administrative character, do not ask for the 
impossible. No cogent reasons justifying further exercise 
of equitable discretion, however, have as yet been produced.

It has been indirectly suggested in the briefs and oral 
argument of appellees that some such reasons exist. Two 
plans were suggested by the United States in its Brief as 
Amicus Curiae. We have analyzed each of these plans 
as well as appellees’ briefs and oral argument and find 
nothing there of sufficient merit on which this Court, in the 
exercise of its equity power, could predicate a decree per­
mitting an effective gradual adjustment from segregated 
to non-segregated school systems. Nor have we been able 
to find any other reasons or plans sufficient to warrant the 
exercise of such equitable discretion in these cases. There­
fore, in the present posture of these cases, appellants are 
unable to suggest any compelling reasons for this Court 
to postpone relief.



21

ARGUM ENT  

PART ONE

The question of judicial power to abolish segregated 
schools is basic to the issues involved in these cases and for 
that reason we have undertaken to analyze it at the outset 
before dealing with the other matters raised by the Court, 
although formally this means that the first section of this 
brief comprehends Question No. 3:

On the assumption that the answers to question 
2(a) and (b) do not dispose of the issue, is it within 
the judicial power, in construing the Amendment, to 
abolish segregation in public schoolsf

I .

Normal exercise of the judicial function calls for 
a declaration that the state is without power to enforce 
distinctions based upon race or color in affording edu­
cational opportunities in the public schools.

This Court in a long line of decisions has made it plain 
that the Fourteenth Amendment prohibits a state from mak­
ing racial distinctions in the exercise of governmental 
power. Time and again this Court has held that if a state’s 
power has been exercised in such a way as to deprive a 
Negro of a right which he would have freely enjoyed if he 
had been white, then that state’s action violated the 
Fourteenth Amendment.

In Shelley v. Kraemer, 334 U. S. 1, for example, an 
unanimous Court held that States of Missouri and 
Michigan had violated the 14tli Amendment when their 
courts ruled that a Negro could not own real property whose 
ownership it was admitted the state law would have pro­
tected him in, had he been white. This, despite the fact



22

that the state court was doing no more than enforcing a 
private agreement running with the land. The sole basis 
for the decision, then, was that the Fourteenth Amendment 
compels the states to be color blind in exercising their power 
and authority.

Buchanan v. Warley, 245 U. S. 60, was an earlier decision 
to the same effect. There, this Court invalidated a Louis­
ville, Kentucky ordinance which required racial residential 
segregation. Though it applied to Negro and white alike, 
the Court rightly recognized that the ordinance was an 
exercise of the state’s power based on race and race alone. 
This, the Court ruled, was a violation of the Fourteenth 
Amendment. To the same effect is Barrows v. Jackson, 
— U. S. —, 97 L. ed. Advance p. 261). And see Oyama v. 
California, 332 U. S. 633.

This Court has applied the same rigorous requirement 
to the exercise of the state’s power in providing public 
education. Beginning with Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337, this Court has uniformly ruled 
that the Fourteenth Amendment prohibits a state from 
using race or color as the determinant of the quantum, 
quality or type of education and the place at which educa­
tion is to be afforded. Most recently, this Court in 
McLaurin v. Oklahoma State Regents, 339 U. S. 637, held 
that rules which made distinctions among students in the 
same school solely on the basis of color were forbidden 
by the Fourteenth Amendment. Thus, this Court has 
made it plain that no state may use color or race as 
the axis upon which the state’s power turns, and the con­
duct of the public education system lias not been excepted 
from this ban.

This judicial recognition that race is an irrational basis 
for governmental action under our Constitution has been 
manifested in many decisions and opinions of this Court. 
In YickWo  v. Hopkins, 118 U. S. 356, this Court struck 
down local administrative action which differentiated 
between whites and Chinese. In Himbayashi v. United 
States, 320 U. S. 81, 100, Chief Justice Stone, in a majority



23

opinion, characterized racial distinctions as “ odious to a 
free people” . In Korematsu v. United States, 323 U. S. 214, 
216, the Court viewed racial restrictions as “ immediately 
suspect” . Mr. Justice Jackson, concurring in Edwards- 
v. California, 314 U. S. 180, 185, referred to race and color 
as “ constitutionally an irrelevance” . Mr. Justice Douglas, 
dissenting in South v. Peters, 339 U. S. 276, 278, considered 
discriminations based upon race, creed, or color “ beyond 
the pale” . In an unanimous opinion in Henderson v. 
United States, 339 U. S. 816, 825, the Court, while not reach­
ing the constitutional question raised, described signs, par­
titions and curtains segregating Negroes in railroad dining 
cars as emphasizing “ the artificiality of a difference in 
treatment which serves only to call attention to a racial 
classification of passengers holding identical tickets and 
using the same public dining facility” . Every member of 
the present Court has from time to time subscribed to this 
view of race as an irrational premise for government action.

The restrictions placed upon persons of Japanese origin 
on the West Coast during World War II were sustained in 
Hirahayashi v. United States, supra, and in Koreniatsu v. 
United States, supra, as emergency war measures taken by 
the national government in a dire national peril of the 
gravest nature. The military decision was upheld as with­
in an implied war power, and the Court was unwilling to 
interfere with measures considered necessary to the safety 
of the nation by those primarily responsible for its security. 
Yet, in upholding these orders, the Court made some of the 
most sweeping condemnations of governmentally imposed 
racial and color distinctions ever announced by our judi­
ciary. And while departure from accepted standards of 
governmental conduct was sustained in order to remove 
persons of Japanese origin from areas where sabotage and 
espionage might have worked havoc with the national war 
effort, once this removal was accomplished and individual 
loyalty determined, further restrictions based upon race or



24

color could no longer be countenanced. Ex Parte Endo, 
323 U. S. 283.

Tunstall v. Brotherhood of Locomotive Firemen £ 
Enginemen, 323 U. S. 210, and Steele v. Louisville <& Nash­
ville R. R. Co., 323 U. S. 192, while not deciding the con­
stitutional question, left no doubt that the Fifth Amendment 
had stripped the national government of power to enforce 
the racial discrimination assailed.

These decisions serve to underscore the constitutional 
prohibition against Congressional action grounded upon 
color except in so far as it may have temporary justifica­
tion to meet an overwhelming national emergency such as 
that which led to decisions in the Hirabayashi and Kore- 
matsu cases.

The power of states is even more rigidly circumscribed. 
For there is grave doubt that their acts can be sustained 
under the exception made in the Hirabayashi and Korematsu 
cases with respect to the national government. See Oyama 
v. California, 332 U. S. 633. The Fourteenth Amendment 
has been defined as a broad prohibition against state enforce­
ment of differentiations and discrimination based upon race 
or color. State action restricting the right of Negroes to 
vote has been struck down as a violation of the Fourteenth 
Amendment. Nixon v. Condon, 286 U. S. 73. Similarly, the 
Court has refused to sanction the systematic exclusion of 
Negroes from the petit or grand jury, Hill v. Texas, 316 
U. S. 400; Pierre v. Louisiana, 306 U. S. 354; their repre­
sentation on juries on a token or proportional basis, Cassell 
v. Texas, 339 U. S. 282; Shepherd v. Florida, 341 U. S. 50; 
or any method in the selection of juries susceptible of racial 
discrimination in practice. Avery v. Georgia, 345 U. S. 559.

Legislation depriving persons of particular races of an 
opportunity to pursue a gainful occupation has been held a 
denial of equal protection. Truax v. Raich, 239 U. S. 33; 
Takahashi v. Fish and Games Commission, 334 U. S. 410. 
It is now well settled that a state may not make racial dif­



ferences among- its employees tlxe basis for salary differen­
tiations. Alston v. School Board, 112 F. 2d 992 (CA 4th 
1940), cert, denied, 311 U. S. 693.

Indeed, abhorence of race as a premise for governmental 
action pervades a wide realm of judicial opinion dealing 
with other constitutional provisions. Sweeping decisions 
have enforced the right of Negroes to make effective use of 
the electoral process consistent with the requirements of 
the Fifteenth Amendment. Guinn v. United States, 238 
U. S. 347; Lane v. Wilson, 307 U. S. 268; Smith v. Allwright, 
321 U. S. 649; Terry v. Adams, 345 U. S. 461.

It should be added parenthetically that these decisions 
are not mere pro forma applications of the self-evident 
requirements of the Fifteenth Amendment. On the con­
trary, the concept of state action has been utilized in a 
dynamic and expanding fashion as the Court has sought to 
reach any method or subterfuge with which the state has 
attempted to avoid its obligation under that constitutional 
amendment. Smith v. Allwright, supra; Terry v. Adams, 
supra. See Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), 
cert, denied, 333 U. S. 875 and Baskin v. Brown, 174 F. 2d 
391 (CA 4th 1949), cases holding state non-action violative 
of the Fifteenth Amendment the principle of which was 
expressly approved in Terry v. Adams.

State laws requiring racial segregation in interstate 
commerce have been declared an invalid invasion of com­
merce power reserved to the Congress. Morgan v. Virginia, 
328 U. S. 373. But where a state sought to enforce against 
a carrier engaged in foreign commerce its local non-segrega­
tion policy, the state law was upheld. The Court con­
sidered it inconceivable that the Congress in the exercise 
of its plenary power over commerce would take any action 
in conflict with the local nondiscriminatory regulations im­
posed. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28. 
These two cases considered together strikingly exemplify 
this Court’s position that fundamental national policy is



26

offended by a requirement of segregation, but implemented 
by its prohibition.

The contention by a labor union that a state civil rights 
law which prohibited racial discrimination in union mem­
bership offended the Fourteenth Amendment was dismissed 
because such a position “ would be a distortion of the policy 
manifested in that amendment which was adopted to pre­
vent state legislation designed to perpetuate discrimination 
on the basis of race and color” . Railway Mail Association 
v. Cor si, 326 U. S. 88, 94.

Thus, the Court has all but universally made short shrift 
of attempts to use governmental power to enforce racial 
distinctions. Yet, where such power has prohibited racial 
discrimination, it has been sustained even where it has been 
urged that the state is acting in derogation of other consti­
tutional rights or protected interests.

At the graduate and professional school level, closest 
to the cases here, racial distinctions as applied have been 
struck down. McLaurin v. Oklahoma State Regents, 339 
U. S. 637; Sweatt v. Painter, 339 IT. S. 629. In those cases the 
educational process was viewed as a totality. The faculty of 
the school, the prestige of the institution, the fact that segre­
gation deprived the Negro applicant of the benefits which 
he might secure in attending school with representatives of 
the state’s dominant racial majority, the value judgment of 
the community with respect to the segregated school, and 
the impact of segregation on the individual were among the 
factors considered by the Court in determining that equal 
educational opportunities were not available. Those cases, 
we submit, control disposition of the cases here.

Since segregation was found to impair and inhibit an 
adult ’s ability to study in the McLaurin case, it seems clear 
that such segregation has even more far reaching adverse 
consequences on the mental development of the children in­
volved here.

Sweatt’s isolation from the dominant racial majority in a 
segregated law school was held to deprive him of an effec­



Z l

tive opportunity to learn the law. The basic function of the 
public school is to instruct each succeeding generation in 
the fundamental traditions of our democracy. The child 
can best come to believe in and respect these traditions by 
learning them in a setting in which they are in practical 
operation. But to be taught that our society is founded 
upon a concept of equality in a public school from which 
those racial groups are excluded which hold pre-eminence 
in every field in his community makes it all but impossible 
for such teachings to take root. Segregation here is detri­
mental to the Negro child in his effort to develop into a use­
ful and productive citizen in a democracy.

The Sweatt and McLaurin cases teach that the Court will 
consider the educational process in its entirety, including, 
apart from the measurable physical facilities, whatever 
factors have been shown to have educational significance. 
This rule cannot be peculiar to any level of public educa­
tion. Public elementary and high school education is no 
less a governmental function than graduate and professional 
education in state institutions. Moreover, just as Sweatt 
and McLaurin were denied certain benefits characteristic 
of graduate and professional education, it is apparent from 
the records of these cases that Negroes are denied educa­
tional benefits which the state itself asserts are the funda­
mental objectives of public elementary and high school 
education.

South Carolina, like the other states in this country, has 
accepted the obligation of furnishing the extensive benefits 
of public education. Article XI, section 5, of the Constitu­
tion of South Carolina, declares: “ The General Assembly 
shall provide for a liberal system of free public schools fox- 
all children between the ages of six and twenty-one years ’ ’. 
Some 410 pages of the Code of Laws of South Carolina deal 
with “ education” . Title 31, Chapters 122-23, S. C. Code, 
pp. 387-795 (1935). Provision is made for the entire state- 
supported system of public schools, its administration and



28

organization, from the kindergarten through the university. 
Pupils and teachers, school buildings, minimum standards 
of school construction, and specifications requiring certain 
general courses of instruction are dealt with in detail. In 
addition to requiring that the three “ R ’s ”  must be taught, 
the law compels instruction in “ morals and good behaviour” 
and in the “ principles”  and “ essentials of the United States 
Constitution, including the study of and devotion to Ameri­
can institutions” . Title 31, Chapter 122, sections 5321, 
5323, 5325, S. C. Code (1935). The other states involved 
here are attempting to promote the same objectives.

These states thus recognize the accepted broad pur­
poses of general public education in a democratic society. 
There is no question that furnishing public education is now 
an accepted governmental function. There are compelling 
reasons for a democratic government’s assuming the bur­
den of educating its children, of increasing its citizens’ 
usefulness, efficiency and ability to govern.

In a democracy citizens from every group, no matter 
what their social or economic status or their religious or 
ethnic origins, are expected to participate widely in the 
making of important public decisions. The public school, 
even more than the family, the church, business institutions, 
political and social groups and other institutions, has be­
come an effective agency for giving to all people that broad 
background of attitudes and skills required to enable them 
to function effectively as participants in a democracy. Thus, 
“ education”  comprehends the entire process of developing 
and training the mental, physical and moral powers and 
capabilities of human beings. See Weyl v. Comm, of Int. 
Rev., 48 F. 2d 811, 812 (CA 2d 1931); Jones v. Better Busi­
ness Bureau, 123 F. 2d 767, 769 (CA 10th 1941).

The records in instant cases emphasize the extent to 
which the state has deprived Negroes of these fundamental 
educational benefits by separating them from the rest of the 
school population. In the case of Briggs v. Elliott (No. 
101), expert witnesses testified that compulsory racial



29

segregation in elementary and high schools inflicts consid­
erable personal injury on the Negro pupils which endures 
as long as these students remain in the segregated school. 
These witnesses testified that compulsory racial segrega­
tion in the public schools of South Carolina injures the 
Negro students by: (1) impairing their ability to learn 
(R. 140, 161); (2) deterring the development of their per­
sonalities (R. 86, 89); (3) depriving them of equal status 
in the school community (R. 89, 141, 145); (4) destroying 
their self-respect (R. 140,148) ; (5) denying them full oppor­
tunity for democratic social development (R. 98, 99, 103);
(6) subjecting them to the prejudices of others (R. 133) and 
stamping them with a badge of inferiority (R. 148).

Similar testimony was introduced in each of the other 
three cases here involved, and that testimony was undis­
puted in the case of Briggs v. Elliott (No. 101); Brown v. 
Board of Education of Topeka, et al. (No. 8 ); Gebhart v. 
Belton (No. 448). In Davis v. County School Board 
(No. 191), while witnesses for the appellees disputed 
portions of the testimony of appellants’ expert witnesses, 
four of appellees’ witnesses admitted that racial segrega­
tion has harmful effects and another recognized that such 
segregation could be injurious.

In the Gebhart case (No. 448) the Chancellor filed an 
opinion in which he set forth a finding of fact, based 
on the undisputed oral testimony of experts in education, 
sociology, psychology, psychiatry and anthropology (A. 340- 
341) that in “ our Delaware society” , segregation in educa­
tion practiced by petitioners as agents of the state “ itself 
results in the Negro children, as a class, receiving educa­
tional opportunities which are substantially inferior to 
those available to white children otherwise similarly 
situated” .

And the court below in the Brown case (No. 8) made the 
following Finding of Fact (R. 245-246):

“ Segregation of white and colored children in public
schools has a detrimental effect upon the colored chil-



30

dren. The impact is greater when it has the sanction 
of the law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of 
the negro group. A sense of inferiority affects the 
motivation of a child to learn. Segregation with the 
sanction of law, therefore, has a tendency to retard 
the educational and mental development of negro 
children and to deprive them of some of the benefits 
they would receive in a racially integrated school 
system. ’ ’

The testimony of the expert witnesses in the cases now 
under consideration, the Opinion of the Chancellor in the 
Delaware case and the Finding of Fact by the lower court 
in the Kansas case are amply supported by scientific studies 
of recognized experts. A compilation of these materials 
was assembled and filed as an Appendix to the briefs in 
these cases on the first hearing. The observation of Mr. 
Justice Jackson in West Virginia State Board of Education 
v. Barnette, 319 U. S. 624, 636 that public school children, 
being educated for citizenship, must be scrupulously pro­
tected in their constitutional rights, “ if we are not to 
strangle the free mind at its source and teach youth to dis­
count important principles of our government as mere plati­
tudes” , while made in somewhat different context, appro­
priately describes the high public interest which these cases 
involve.

In sum, the statutes and constitutional provisions as­
sailed in these cases must fall because they are contrary to 
this Court’s basic premise that, as a matter of law, race is 
not an allowable basis of differentiation in governmental 
action; they are inconsistent with the broad prohibition of 
the Fifth and Fourteenth Amendments as defined by this 
Court; they are clearly within that category of racism in 
state action specifically prohibited by the McLaurin and 
iSweatt decisions.



31

I I .

The statutory and constitutional provisions involved 
in these cases cannot be validated under any separate 
but equal concept.

The basic principles referred to in Point I above, we 
submit, control these cases, and except for the mistaken 
belief that the doctrine of Plessy v. Ferguson, 163 U. S. 337, 
is a correct expression of the meaning of the Fourteenth 
Amendment, these cases would present no difficult problem.

This Court announced the separate but equal doctrine in 
a transportation case, and proponents of segregation have 
relied upon it repeatedly as a justification for racial segre­
gation as if “ separate but equal”  had become in liaec verba 
an amendment to the Fourteenth Amendment, itself. Under 
that anomalous doctrine, it is said that racial differentia­
tions in the enjoyment of rights protected by the Fourteenth 
Amendment are permitted as long as the segregated facili­
ties provided for Negroes are substantially equal to those 
provided for other racial groups. In each case in this Court 
where a state scheme of racism has been deemed susceptible 
of rationalization under the separate but equal formula, it 
has been urged as a defense.

A careful reading of the cases, however, reveals that this 
doctrine has received only very limited and restricted appli­
cation in the actual decisions of this Court, and even that 
support has been eroded by more recent decisions. See par­
ticularly McLaurin v. Oklahoma State Regents; Sweatt v. 
Painter. Whatever appeal the separate but equal doctrine 
might have had, it stands mirrored today as the faulty con­
ception of an era dominated by provincialism, by intense 
emotionalism in race relations caused by local and tempo­
rary conditions and by the preaching of a doctrine of racial 
superiority that contradicted the basic concept upon which 
our society was founded. Twentieth century America, 
fighting racism at home and abroad, has rejected the race



32

views of Plessy v. Ferguson because we have come to the 
realization that such views obviously tend to preserve not 
the strength but the weaknesses of our heritage.

A. Racial Segregation Cannot Be Squared With 
the Rationale of the Early Cases Interpreting 
the Reach of the Fourteenth Amendment.

In the Slaughter House Cases, 16 Wall. 36—the first case 
decided under the Fourteenth Amendment—the Court, 
drawing on its knowledge of an almost contemporaneous 
event, recognized that the Fourteenth Amendment secured 
to Negroes full citizenship rights and prohibited any state 
action discriminating against them as a class on account of 
their race. Thus, addressing itself to the intent of the 
Thirteenth, Fourteenth and Fifteenth Amendments, the 
Court said at pages 71 and 72:

“ We repeat, then, in the light of this recapitu­
lation of events, almost too recent to be called his­
tory, but which are familiar to us all; and on the 
most casual examination of the language of these 
amendments, no one can fail to be impressed with 
the one pervading purpose found in them all, lying 
at the foundation of each, and without which none 
of them would have been even suggested; we mean 
the freedom of the slave race, the security and firm 
establishment of that freedom, and the protection 
of the newly made freeman and citizen from the 
oppressions of those who had formerly exercised un­
limited dominion over him. It is true that only the 
15th Amendment, in terms, mentions the negro by 
speaking of his color and his slavery. But it is just 
as true that each of the other articles was addressed 
to the grievances of that race, and designed to 
remedy them as the fifteenth.”

The real purpose of the equal protection clause was dis­
cussed in these terms at page 81:

“ In the light of the history of these amendments, 
and the pervading purpose of them, which we have



33

already discussed, it is not difficult to give a meaning 
to this clause. The existence of laws in the states 
where the newly emancipated negroes resided, which 
discriminated with gross injustice and hardship 
against them as a class, was the evil to be remedied 
by this clause, and by it such laws are forbidden.”  
(Emphasis supplied).

So convinced was the Court that the overriding purpose 
of the Fourteenth Amendment was to protect the Negro 
against discrimination that it declared further at page 81:

“ We doubt very much whether any action of a state 
not directed by Avay of discrimination against the 
negroes as a class, or on account of their race, will 
ever be held to come within the purview of this pro­
vision. It is so clearly a provision for that race and 
that emergency, that a strong case would be neces­
sary for its application to any other.”

In Strauder v. West Virginia, 100 U. S. 303, the Court, 
on page 306, viewed the Fourteenth Amendment in the same 
light and stated that its enactment was aimed to secure for 
the Negro all the civil rights enjoyed by white persons:

“ It was in view of these considerations the 14th 
Amendment was framed and adopted. It was de­
signed to assure to the colored race the enjoyment 
of all the civil rights that under the law are enjoyed 
by white persons, and to give to that race the pro­
tection of the General Government, in that enjoy­
ment, whenever it should be denied by the States. 
It not only gave citizenship and the privileges of 
citizenship to persons of color, but it denied to any 
State the power to withhold from them the equal pro­
tection of the laws, and authorized Congress to en­
force its provisions by appropriate legislation.”  
(Emphasis supplied).

Clearly recognizing the need to construe the Amend­
ment liberally in order to protect the Negro, the Court noted 
at page 307:



34

“ If this is the spirit and meaning of the Amend­
ment, whether it means more or not, it is to be con­
strued liberally, to carry out the purposes of its 
framers. It ordains that no State shall make or 
enforce any laws which shall abridge the privileges 
or immunities of citizens of the United States (evi­
dently referring to the newly made citizens, who, 
being citizens of the United States, are declared to 
be also citizens of the State in which they reside).’ ’

It was explicitly stated at pages 307, 308 that the Amend­
ment prevented laws from distinguishing between colored 
and white persons:

“ What is this but declaring that the law in the 
States shall be the same for the black as for the 
white; that all persons, whether colored or white, 
shall stand equal before the laws of the States and, 
in regard to the colored race, for whose protection 
the Amendment was primarily designed, that no dis­
crimination shall be made against them by law be­
cause of their color! The words of the Amendment, 
it is true, are prohibitory, but they contain a neces­
sary implication of a positive immunity, or right, 
most valuable to the colored race—the right to ex­
emption from unfriendly legislation against them 
distinctly as colored; exemption from legal dis­
criminations, implying inferiority in civil society, 
lessening the security of their enjoyment of the 
rights which others enjoy, and discriminations 
which are steps towards reducing them to the condi­
tion of a subject race.”  (Emphasis supplied).

Any distinction based upon race was understood as con­
stituting a badge of inferiority, at page 308:

“ The very fact that colored people are singled out 
and expressly denied by a statute all right to partici­
pate in the administration of the law, as jurors, be­
cause of their color, though they are citizens and may 
be in other respects fully qualified, is practically a 
brand upon them, affixed by the law; an assertion of 
their inferiority, and a stimulant to that race preju­



35

dice which is an impediment to securing to indi­
viduals of the race that equal justice which the law 
aims to secure to all others.”

There was no doubt that this new constitutional provi­
sion had changed the relationship between the federal gov­
ernment and the states so that the federal courts could and 
should now protect these new rights. At page 309 the Court 
said:

“ The framers of the constitutional Amendment must 
have known full well the existence of such prejudice 
and its likelihood to continue against the manumitted 
slaves and their race, and that knowledge was, doubt­
less, a motive that led to the Amendment. By their 
manumission and citizenship the colored race became 
entitled to the equal protection of the laws of the 
States in which they resided; and the apprehension 
that, through prejudice, they might be denied that 
equal protection, that is, that there might be dis­
crimination against them, was the inducement to 
bestow upon the National Government the power to 
enforce the provision that no State shall deny to 
them the equal protection of the laws. Without the 
apprehended existence of prejudice that portion of 
the Amendment would have been unnecessary, and 
it might have been left to the States to extend equal­
ity of protection.”

l/

That law must not distinguish between colored and 
white persons was the thesis of all the early cases. United 
States v. Cruikshank, 92 U. S. 542, 554, 555; Virginia v. 
Rives, 100 U. S. 313; Ex Parte Virginia, 100 U. S. 339; Neal 
v. Delaware, 103 U. S. 370, 386; Bush v. Kentucky, 107 U. S. 
110; Civil Rights Cases, 109 U. S. 3, 36, 43. As early as 
Yick Wo v. Hopkins, 118 U. S. 356, it became settled doc­
trine that the Fourteenth Amendment was a broad prohibi­
tion against state enforcement of racial differentiations or 
discrimination— a prohibition totally at war with any sepa­
rate but equal notion. There can be no doubt, we submit, 
that, had the state regulation approved in Plessy v. Fergu-



36

son been before the Court that rendered the initial interpre­
tations of the Fourteenth Amendment, the regulation would 
have been held a violation of the Federal Constitution.

B. The First Time the Question Came Before the 
Court, Racial Segregation In Transportation 
Was Specifically Disapproved.

In Railroad Co. v. Brown, 17 Wall. 445, the first case 
involving the validity of segregation to reach this Court 
after the adoption of the Fourteenth Amendment, segrega­
tion was struck down as an unlawful discrimination. While 
the Fourteenth Amendment was not before the Court, the 
decision in the Brown case was in line with the spirit of the 
new status that the Negro had gained under the Thirteenth, 
Fourteenth and Fifteenth Amendments.

The problem before the Court concerned the validity of 
the carrier ’s rules and regulations that sought to segregate 
its passengers because of race. The pertinent facts are 
described by the Court as follows at page 451:

“ In the enforcement of this regulation, the de­
fendant in error, a person of color, having entered a 
car appropriated to white ladies, was requested to 
leave it and take a seat in another car used for col­
ored persons. This she refused to do, and this re­
fusal resulted in her ejectment by force and with 
insult from the car she had first entered.”

The Court characterized the railroad’s defense that its 
practice of providing separate accommodations for Negroes 
was valid, as an ingenious attempt at evasion, at page 452:

“ The plaintiff in error contends that it has liter­
ally obeyed the direction, because it has never ex­
cluded this class of persons from the ears, but on 
the contrary, has always provided accommodations 
for them.

“ This is an ingenious attempt to evade a compli­
ance with the obvious meaning of the requirement. 
It is true the words taken literally might bear the



37

interpretation put upon them by the plaintiff in 
error, but evidently Congress did not use them in 
any such limited sense. There was no occasion, 
in legislating for a railroad corporation, to annex a 
condition to a grant of power, that the company 
should allow colored persons to ride in its cars. This 
right had never been refused, nor could there have 
been in the mind of anyone an apprehension that 
such a state of things would ever occur, for self- 
interest would clearly induce the carrier—South as 
well as North—to transport, if paid for it, all per­
sons whether white or black, who should desire trans­
portation. ’ ’

The Court stressed with particularity the fact that the dis­
crimination prohibited was discrimination in the use of the 
cars, at pages 452-453:

“ It was the discrimination in the use of the cars 
on account of color, where slavery obtained, which 
was the subject of discussion at the time, and not 
the fact that the colored race could not ride in the 
cars at all. Congress, in the belief that this dis­
crimination was unjust, acted. It told this company, 
in substance, that it could extend its road in the 
District as desired, but that this discrimination must 
cease, and the colored and white race, in the use of 
the cars, be placed on an equality. This condition it 
had the right to impose, and in the temper of Con­
gress at the time, it is manifest the grant could not 
have been made without it.”

The regulation that was struck down in the Brown case 
sought to accomplish exactly what was achieved under a 
state statute upheld subsequently in Plessy v. Ferguson— 
the segregation of Negro and white passengers. It is clear, 
therefore, that in this earlier decision the Court considered 
segregation per se discrimination and a denial of equality.



38

C. The Separate But Equal Doctrine Marked An 
Unwarranted Departure From the Main Stream 
of Constitutional Development and Permits the 
Frustration of the Very Purposes of The Four­
teenth Amendment As Defined by This Court.

Ill Plessy v. Ferguson, this Court for the first time gave 
approval to state imposed racial distinctions as consistent 
with the purposes and meaning of the Fourteenth Amend­
ment. The Court described the aims and purposes of the 
Fourteenth Amendment in the same manner as had the 
earlier cases, at page 543:

“  . . . i ts main purpose was to establish the citizen­
ship of the negro; to give definitions of citizenship 
of the United States and of the states, and to protect 
from the hostile legislation of the states the privi­
leges and immunities of citizens of the United States, 
as distinguished from those of citizens of the states. ’ ’

But these defined aims and purposes were now considered 
consistent with the imposition of legal distinctions based 
upon race. The Court said at 544, 551-552:

“ The object of the amendment was undoubtedly 
to enforce the absolute equality of the two races be­
fore the law, but in the nature of things it could not 
have been intended to abolish distinctions based upon 
color, or to enforce social, as distinguished from 
political, equality, or a commingling of the two races 
upon terms unsatisfactory to either.

*  *  *

Legislation is powerless to eradicate racial instincts 
or to abolish distinctions based upon physical dif­
ferences, and the attempt to do so can only result in 
accentuating the difficulties of the present situation. 
I f the civil and pjolitical rights of both races be equal, 
one cannot be inferior to the other civilly or politi­
cally. If one race be inferior to the other socially, 
the Constitution of the United States cannot put 
them upon the same plane.”



39

And reasonableness of the regulation was found in 
established social usage, custom and tradition, at page 550:

“ So far, then, as a conflict with the 14th Amend­
ment is concerned, the case reduces itself to the ques­
tion whether the statute of Louisiana is a reason­
able regulation and with respect to this there must 
necessarily be a large discretion on the part of the 
legislature. In determining the question of reason­
ableness it is at liberty to act with reference to the 
established usages, customs, and traditions of the 
people, and with a view to the promotion of their 
comfort, and the preservation of the public peace 
and good order.”

In Plessy, through distortion of the concept of “ social”  
rights as distinguished from “ civil”  rights, the right to 
civil equality as one of the purposes of the Fourteenth 
Amendment was given a restricted meaning wholly at vari­
ance with that of the earlier cases and the intent of the 
framers as defined by this Court. Indeed, civil rights, as 
defined by that Court, seem merely to encompass those 
rights attendant upon use of the legal process and protec­
tion against complete exclusion pursuant to state mandate. 
Race for the first time since the adoption of the Fourteenth 
Amendment was sanctioned as a constitutionally valid basis 
for state action, and reasonableness for the racial distinc­
tions approved was found in the social customs, usages and 
traditions of a people only thirty-one years removed from 
a slave society.

Under this rationale the Court sought to square its 
approval of racial segregation with the Slaughter House 
Cases, Strauder v. West Virginia and the other precedents. 
It is clear, however, that the early cases interpreted the 
Fourteenth Amendment as encompassing that same cate­
gory of rights which were involved in Plessy v. Ferguson—: 
the right to be free of a racial differentiation imposed by 
the state in the exercise of any civil right. And the Court’s 
attempt to distinguish Railroad- Co. v. Brown, as a case of



40

exclusion, was the very argument that has been specifically 
rejected in the Brown case as a sophisticated effort to avoid 
the obvious implications of the Congressional requirement. 
Thus, the separate but equal doctrine is a rejection of the 
precedents and constitutes a break in the development of 
constitutional law under which the Fourteenth Amendment 
has been interpreted as a fundamental interdiction against 
state imposed differentiations and discriminations based 
upon color.

D. The Separate But Equal Doctrine Was 
Conceived in Error.

The separate but equal doctrine of Bless ij v. Ferguson, 
we submit, has aided and supported efforts to nullify the 
Fourteenth Amendment’s undoubted purpose—equal status 
for Negroes—as defined again and again by this Court. The 
fallacious and pernicious implications of the doctrine were 
evident to Justice Harlan and are set out in his dissenting 
opinion. It is clear today that the fact that racial segrega­
tion accords with custom and usage or is considered needful 
for the preservation of public peace and good order does 
not suffice to give constitutional validity to the state’s action. 
What the doctrine has in fact accomplished is to deprive 
Negroes of the protection of the approved test of reason­
able classifications which is available to everyone else who 
challenges legislative categories or distinctions of whatever 
kind.

1. T he  D issenting  Opinion  of J ustice H arlan in  
P lessy v. F erguson.

Justice Harlan recognized and set down for history the 
purpose of segregation and the implications of the separate 
but equal doctrine and evidenced prophetic insight concern­
ing the inevitable consequences of the Court’s approval of 
racial segregation. He said at page 557: ‘ ‘ The thing to 
accomplish was, under the guise of giving equal accommoda-



41

tions for whites and blacks to compel the latter to keep to 
themselves while traveling in railroad passenger coaches.”  

He realized at page 560, moreover, that the approved 
regulations supported the inferior caste thesis of Scott v. 
Sandford, 19 How. 393, supposedly eradicated by the Civil 
War Amendments: ‘ ‘ But it seems that we have yet, in
some of the states, a dominant race, a superior class of 
citizens, which assumes to regulate the enjoyment of civil 
rights, common to all citizens, on the basis of race.”  And 
at page 562: “ We boast of the freedom enjoyed by our 
people above all other people. But it is difficult to reconcile 
that boast with a state of the law which, practically, puts 
the brand of servitude and degradation upon a large class 
of our fellow citizens, our equals before the law.”

While the majority opinion sought to rationalize its 
holding on the basis of the state’s judgment that separation 
of races was conducive to public peace and order, Justice 
Harlan knew all too well that the seeds for continuing racial 
animosities had been planted. He said at pages 560-561:

‘ ‘ The sure guaranty of peace and security of each 
race is the clear, distinct, unconditional recognition 
by our governments, national and state, of every 
right that inheres in civil freedom, and of equality 
before the law of all citizens of the United States 
without regard to race. State enactments, regulat­
ing the enjoyment of civil rights, upon the basis of 
race, and cunningly devised to defeat legitimate re­
sults of the war, under the pretense of recognizing- 
equality of rights, can have no other result than to 
render permanent peace impossible and to keep alive 
a conflict of races, the continuance of which must do 
harm to all concerned.”

“ Our Constitution” , said Justice Harlan at 559, “ is color­
blind, and neither knows nor tolerates classes among citi­
zens.”  It is the dissenting opinion of Justice Harlan, rather 
than the majority opinion in Plessy v. Ferguson, that is in 
keeping with the scope and meaning of the Fourteenth 
Amendment as consistently defined by this Court both 
before and after Plessy v. Ferguson.



42

2. Custom , U sage and T radition R ooted in  the 
S lave T radition Cannot  B e th e  Constitu­
tional Y ardstick for M easuring S tate A ction 
U nder th e  F ourteenth A m e n d m en t .

The analysis by Justice Harlan of the bases for the 
majority opinion in Plessy v. Ferguson was adopted by this 
Court in Chiles v. Chesape-ake & Ohio Railroad Company, 
218 U. S. 71, 77, 78. There this Court cited Plessy v. Fer­
guson as authority for sustaining the validity of legislative 
distinctions based upon race and color alone.

The importance of this case is its clear recognition and 
understanding that in Plessy v. Ferguson this Court ap­
proved the enforcement of racial distinctions as reasonable 
because they are in accordance with established social usage, 
custom and tradition. The Court said at pages 77, 78:

“ It is true the power of a legislature to recognize 
a racial distinction was the subject considered, but 
if the test of reasonableness in legislation be, as 
it was declared to be, ‘ the established usages, 
customs and traditions of the people,’ and the 
‘ promotion of their comfort and the preservation of 
the public peace and good order,’ this must also be 
the test of reasonableness of the regulations of a 
carrier, made for like purposes and to secure like re­
sults.”

But the very purpose of the Thirteenth, Fourteenth and 
Fifteenth Amendments was to effectuate a complete break 
with governmental action based on the established usages, 
customs and traditions of the slave era, to revolutionize the 
legal relationship between Negroes and whites, to destroy 
the inferior status of the Negro and to place him upon a 
plane of complete equality with the white man. As we will 
demonstrate, post Civil War reestablishment of ante-bellum 
custom and usage, climaxed by the decision in Plessy v. Fer­
guson, reflected a constant effort to return the Negro to his 
pre-Thirteenth, Fourteenth Amendment inferior status.



43

When the Court employed the old usages, customs and tra­
ditions as the basis for determining the reasonableness of 
segregation statutes designed to resubjugate the Negro to 
an inferior status, it nullified the acknowledged intention of 
the framers of the Amendment, and made a travesty of the 
equal protection clause of the Fourteenth Amendment.

Here, again, the Plessy v. Ferguson decision is out of 
line with the modern holdings of this Court, for in a variety 
of cases involving the rights of Negroes it has constantly 
refused to regard custom and usage, however widespread, 
as determinative of reasonableness. This was true in Smith 
v. Allwright, of a deeply entrenched custom and usage of 
excluding Negroes from voting in the primaries. It was 
true in Shelley v. Kraemer, of a long standing custom ex­
cluding Negroes from the use and ownership of real prop­
erty on the basis of race. In Henderson v. United States, 
a discriminatory practice of many years was held to violate 
the Interstate Commerce Act. In the Sweatt and McLaurin 
decisions, the Court broke a southern tradition of state- 
enforced racial distinctions in graduate and professional 
education—a custom almost as old as graduate and pro­
fessional education, itself.

In each instance the custom and usage had persisted for 
generations and its durability was cited as grounds for its 
validity. If this were the only test, ours indeed would be­
come a stagnant society. Even if there be some situations in 
which custom, usage and tradition may be considered in 
testing the reasonableness of governmental action, customs, 
traditions and usages rooted in slavery cannot be worthy 
of the constitutional sanction of this Court. 3

3. P reservation of P ublic P eace Cannot  J ustify 
D eprivation of Constitutional R ights .

The fallacy underlying Plessy v. Ferguson of justifying 
racially-discriminatory statutes as essential to the public 
peace and good order has been completely exposed by



44

Frederick W1. Lehmann, a former Solicitor General of the 
United States, and Wells H. Blodgett in their Brief as amici 
curiae in Buchanan v. War ley, 245 U. S. 60. Their state­
ments warrant repetition here:

“ The implication of the title of the ordinance is, 
that unless the white and colored people live in sepa­
rate blocks, ill feeling will be engendered between 
them and conflicts will result and so it is assumed that 
a segregation of the races is necessary for the 
preservation of the public peace and the promotion 
of the general welfare. There is evidence in the rec­
ord that prior to the enactment of the ordinance 
there were instances of colored people moving into 
white blocks and efforts by the white people to drive 
them out by violence. So to preserve the peace, the 
ordinance was enacted not to repress the lawless vio­
lence, but to give the sanction of the law to the mo­
tives which inspired it and to make the purpose of it 
lawful.

“ The population of Louisville numbers two hun­
dred and fifty thousand, of whom about one-fifth are 
colored. The ordinance, almost upon its face, and 
clearly by the evidence submitted and the arguments 
offered in support of it is a discriminating enactment 
by the dominant majority against a minority who 
are held to be an inferior people. It cannot be justi­
fied by the recitals of the title, even if they are true. 
Many things may rouse a man’s prejudice or stir 
him to anger, but he is not always to be humored in 
his wrath. The question may arise, ‘ Dost thou well 
to be angry?’ ”  (Brief Amici Curiae, pp. 2 and 3).

Accepting this view, the Court in Buchanan v. Warley 
rejected the argument that a state could deny constitutional 
rights with impunity in its efforts to maintain the public 
peace:

“ It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be



accomplished by laws or ordinances which deny 
rights created or protected by the Federal Constitu­
tion”  (i245 U. S. 60, 81).

Accord, Morgan v. Virginia, sypru; Monk v. City of Bir­
mingham, 185 F. 2d 859 (CA 5th 1950), cert, denied, 341 
U. S. 940.

Thus, the bases upon which the separate but equal doc­
trine was approved in the Plessy v. Ferguson case have all 
been uprooted by subsequent decisions of this Court. All 
that remains is the naked doctrine itself, unsupported by 
reason, contrary to the intent of the framers, and out of 
tune with present notions of constitutional rights. Repu­
diation of the doctrine itself, we submit, is long overdue.

4. T he  S eparate but E qual D octrine D eprives 
N egroes of T hat P rotection W h ich  the  
F ourteenth  A m endm ent  A ccords U nder the 
General Classification T est.

One of the ironies of the separate but equal doctrine of 
Plessy v. Ferguson is that under it, the Fourteenth Amend­
ment, the primary purpose of which was the protection of 
Negroes, is construed as encompassing a narrower area of 
protection for Negroes than for other persons under the 
general classification test.

Early in its history, the Fourteenth Amendment was 
construed as reaching not only state action based upon race 
and color, but also as prohibiting all unreasonable classi­
fications and distinctions even though not racial in char­
acter. Barbier v. Connolly, 113 U. S. 27, seems to be the 
earliest case to adopt this concept of the Amendment. There 
the Court said on page 31:

“ The Fourteenth Amendment . . . undoubtedly
intended, not only that there should be no arbitrary 
deprivation of life or liberty or arbitrary spoliation 
of property but that equal protection and security 
should be given to all under like circumstances in the 
enjoyment of their personal and civil rights.”



46

Accord: Minneapolis & St. Louis Ry. Co. v. Beckwith, 
129 U. S. 26, 28, 29; Bell’s Gap R. R. Co. v. Pennsylvania, 
134 U. S. 232, 237; McPherson v. Blacker, 146 U. S. 1, 39; 
Yesler v. Board of Harbor Line Commissioners, 146 U. S. 
646, 655; Giozza v. Tiernan, 148 U. S. 657, 662; Marchant v. 
Pennsylvania R. Co., 153 U. S. 380, 390; Moore v. Missouri, 
159 U. S. 673, 678.

In effectuating the protection afforded by this secondary 
purpose, the Court has required the classification or distinc­
tion used be based upon some real or substantial difference 
pertinent to a valid legislative objective. E.g., Quaker 
City Cab Co. v. Pennsylvania, 277 U. S. 389; Truax v. Raich, 
239 U. S. 33; Smith v. Cahoon, 283 U. S. 553; Mayflower 
Farms v. Ten Eyck, 297 U. S. 266; Skinner v. Oklahoma, 316 
U. S. 535. See also Cities Service Gas Co. v. Peerless Oil & 
Gas Co., 340 U. S. 179, 186.

Justice Holmes in Nixon v. Herndon, 273 U. S. 536, 541, 
recognized and restated a long established and well settled 
judicial proposition when he described the Fourteenth 
Amendment’s prohibition against unreasonable legislative 
classification as less rigidly proscriptive of state action than 
the Amendment’s prohibition of color differentiation. 
There he concluded:

“ States may do a good deal of classifying that it is 
difficult to believe rational, but there are limits, and 
it is too clear for extended argument that color can­
not be made the basis of a statutory classification 
affecting the right set up in this case.”

But the separate but equal doctrine substitutes race for 
reasonableness as the constitutional test of classification. 
We submit, it would be a distortion of the purposes and 
intendment of the Fourteenth Amendment to deny to those 
persons for whose benefit that provision was primarily in­
tended the same measure of protection afforded by a rule 
of construction evolved to reach the Amendment’s sub­
sidiary and secondary objectives. We urge this Court to



4 7

examine the segregation statutes in these cases to deter­
mine whether the statutes seek to serve a permissible legis­
lative objective; and, if any permissible objective is found, 
whether color differentiation has pertinence to it. So ex­
amined, the constitutional provisions and statutes involved 
here disclose unmistakably their constitutional infirmity.

E. The Separate But Equal Doctrine Has Not 
Received Unqualified Approval in This Court.

Even while the separate but equal doctrine was evolv­
ing, this Court imposed limitations upon its applications. 
In Buchanan v. Warley, the Court, after reviewing the 
limited acceptance which the doctrine had received, con­
cluded that its extension to approve state enforced segrega­
tion in housing was not permissible.

Ten years later in Gong Lum v. Rice, 275 U. S. 78, 85, 
86, without any intervening development in the doctrine 
in this Court, sweeping language was used which gave the 
erroneous impression that this Court already had extended 
the application of the doctrine to the field of education. 
And in Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 
the doctrine is mentioned in passing as if its application to 
public education were well established. But, what Justice 
Day was careful to point out in Buchanan v. Warley, was 
true then and is true now—the separate but equal doctrine 
has never been extended by this Court beyond the field 
of transportation in any case where such extension was 
contested.

While the doctrine itself has not been specifically 
repudiated as a valid constitutional yardstick in the field 
of public education, in cases in which this Court has had 
to determine whether the state had performed its con­
stitutional obligation to provide equal education oppor­
tunities— the question presented here—the separate but 
equal doctrine has never been used by this Court to sustain 
the validity of the state’s separate school laws. Missouri 
ex rel. Gaines v. Canada; Sipuel v. Board of Regents, 332 
17. S. 631; Sweatt v. Painter; McLaurin v. Oklahoma State 
Regents.



48

Earlier educational cases, not concerned with equality, 
did not apply the doctrine. In Cumming v. County Board 
of Education, 175 U. S. 528, the question was explicitly 
beyond the scope of the decision rendered. In Berea 
College v. Kentucky, 211 U. S. 45, the question was reserved. 
In Gong Lum v. Rice, the separate but equal doctrine was 
not put in issue. Instead of challenging the validity of 
the Mississippi school segregation laws, the Chinese child 
merely objected to being classified as a Negro for public 
school purposes.

Even in the field of transportation, subsequent decisions 
have sapped the doctrine of vitality. Henderson v. United 
States in effect overruled Chiles v. Chesapeake & Ohio 
Railway Co., 218 U. S. 71. See Chance v. Lambeth, 186 
F. 2d 879 (CA 4th 1951), cert, denied, 341 U. S. 91. Morgan 
v. Virginia places persons traveling in interstate com­
merce beyond the thrust of state segregation statutes. 
Thus, the reach of the separate but equal doctrine approved 
in the Plessy case has now been so severely restricted and 
narrowed in scope that, it may be appropriately said of 
Plessy v. Ferguson as it was said of Crowell v. Benson, 
285 U. S. 22, ‘ ‘ one had supposed that the doctrine had earned 
a deserved repose.”  Estep v. United States, 327 U. S. 
114, 142 (concurring opinion).

F. The Necessary Consequence of the Sweatt and 
McLaurin Decisions is Repudiation of the Sepa­
rate But Equal Doctrine.

While Sweatt v. Painter and McLaurin v. Oklahoma 
State Regents were not in terms rejections of the separate 
but equal doctrine, their application in effect destroyed the 
practice of segregation with respect to state graduate and 
professional schools. Wilson v. Board of Supervisors, 92 
F. Supp. 986 (E. D. La. 1950), aff’d, 340 U. S. 909; Gray 
v. Board of Trustees of University of Tennessee, 342 U. S. 
517; McKissick v. Carmichael, 187 F. 2d 949 (CA 4th 1951), 
cert, denied, 341 U. S. 951; Swanson v. University of Vir­
ginia, Civil Action #30 (W. D. Va. 1950) unreported;



49

Payne v. Board of Supervisors, Civil Action #894 (E. D. 
La. 1952) unreported; Foister v. Board of Supervisors, 
Civil Action #937 (E. D. La. 1952) unreported; Mitchell 
v. Board of Regents of University of Maryland, Docket 
#16, Folio 126 (Baltimore City Court 1950) unreported.1

In the Sweatt case, the Court stated that, with members 
of the state’s dominant racial groups excluded from the 
segregated law school which the state sought to require 
Sweatt to attend, “ we cannot conclude that the education 
offered petitioner is substantially equal to that he would 
receive if admitted to the University of Texas.”  If this 
consideration is one of the controlling factors in determin­
ing substantial equality at the law school level, it is impos­
sible for any segregated law school to be an equal law 
school. And pursuant to that decision one of the oldest 
and best state-supported segregated law schools in the 
country was found unequal and Negro applicants were 
ordered admitted to the University of North Carolina. 
McKissick v. Carmichael. Thus, substantial equality in 
professional education is “ substantially equal”  only if 
there is no racial segregation.

In the McLaurin case, the racial distinctions imposed in 
an effort to comply with the state’s segregation laws were 
held to impair and inhibit ability to study, to exchange 
views with other students and, in general, to learn one’s * 19

1 Negroes are now attending state graduate and professional 
schools in West Virginia, Maryland, Arkansas, Delaware, Okla­
homa, Kentucky, Texas, Missouri, North Carolina, Virginia, and 
Louisiana. See (Editorial Comment), T he Courts and R acial 
Integration in  Education , 21 J. N eg. E duc. 3 (1952).

Negroes are also now attending private universities and colleges in 
Missouri, Georgia, Kentucky, Louisiana, Texas, Maryland, West 
Virginia, North Carolina, District of Columbia, and Virginia. See 
T he Courts and R acial Integration in Education , 21 J. 
Neg. Educ. 3 (1 9 5 2 ): Some P rogress in E lim in ation  of D is­
crimination in  H igher E ducation in  the U nited States,
19 J. N eg. Educ. 4-5 (1 9 5 0 ); L ee and K ramer, R acial I nclu­
sion in  Ch u rch -R elated Colleges in  the  South , 22 J. N eg. 
Educ. 22 (1 9 5 3 ); A N ew T rend in P rivate Colleges, 6 N ew 
South 1 (1951).



50

profession. The state, therefore, was required to remove 
all restrictions and to treat McLaurin the same way as 
other students are treated. Consequently these decisions 
are a repudiation of the separate but equal doctrine.

I I I .

Viewed in the light of history the separate but 
equal doctrine has been an instrumentality of defiant 
nullification of the Fourteenth Amendment.

The history of segregation laws reveals that their main 
purpose was to organize the community upon the basis of 
a superior white and an inferior Negro caste. These laws 
were conceived in a belief in the inherent inferiority of 
Negroes, a concept taken from slavery. Inevitably, segre­
gation in its operation and effect has meant inequality 
consistent only with the belief that the people segregated 
are inferior and not worthy, or capable, of enjoying the 
facilities set apart for the dominant group.

Segregation originated as a part of an effort to build 
a social order in which the Negro would be placed in a 
status as close as possible to that he had held before the 
Civil War. The separate but equal doctrine furnished a 
base from which those who sought to nullify the Thirteenth, 
Fourteenth and Fifteenth Amendments were permitted to 
operate in relative security. While this must have been 
apparent at the end of the last century, the doctrine has 
become beclouded with so much fiction that it becomes 
important to consider the matter in historical context to 
restore a proper view of its meaning and import.

A. The Status of the Negro, Slave and Free,
Prior to the Civil War.

One of the basic assumptions of the slave system was the 
Negro’s inherent inferiority.2 As the invention of the

2 For an illuminating discussion of these assumptions, see John­
son, T he Ideology of W hite Supremacy, 1876-1910, in  E ssays 
in  Southern H istory Presented to Joseph Gregoire deR oulhac 
H am ilto n , G reen ed., 124-156 (1949).



51

cotton gin rendered slavery essential to the maintenance 
of the plantation economy in the South, a body of pseudo­
scientific thought developed in passionate defense of 
slavery, premised on the Negro’s unfitness for freedom 
and equality.3 Thus, the Negro’s inferiority with respect 
to brain capacity, lung activity and countless other physio­
logical attributes was purportedly established by some of 
the South’s most respected scientists.4 5 * * In all relation­
ships between the two races the Negro’s place was that 
of an inferior, for it was claimed that any other relation­
ship status would automatically degrade the white man."

This concept of the Negro as an inferior fit only for 
slavery was complicated by the presence of several hundred 
thousand Negroes, who although not slaves, could not be 
described as free men.8 In order that they would not

3 Je n k in s , Pro-S lavery T hought in  the O ld South 243 
(1935); Johnson , T he N egro in  A merican Civilization  5-15 
(1930).

4 See V an  Evrie, N egroes and N egro Slavery 120 ff, 122 
ff, 214 ff (1 8 6 1 ); Cartw right , D iseases and P eculiarities of 
the N egro R ace, 2 D eBow , T he I ndustrial R esources, etc., 
of the Southern and W estern States 315-329 (1 8 5 2 ); 
Nott, 1  w o  L ectures O n  the  N atural H istory of the  Cau ­
casian and N egro R aces (1866) ; V an  E vrie, N egroes and N egro
Slavery ; T he F irst A n I nferior Race— T he L atter Its 

Normal Condition (1 8 5 3 ); V an E vrie, Subgenation : T he 
T heory of the  N ormal R elation of the R aces (1 8 6 4 ); Cart­
wright, D iseases and P eculiarities of the  N egro R aces, 
9 DeBovv’s R eview 64-69 (1 8 5 1 ); Cartw right, E ssays, Being 
Inductions D raw n  F rom the  Baconian  P hilosophy Prov­
ing the Truth  of the  B ible and the  Justice and Benevolence 
of the D ecree D ooming Can aan  to B e A  Servant of Servants 
(1843).

5 Jen k in s , P ro-S lavery T hought I n the O ld South 242 
ff (1 9 3 5 ); T he P ro-S lavery A rgument, e sp e c ia lly  H arper’s
Memoir on Slavery, pp. 26-98; and S im m s , T he M orals of 
Slavery, pp. 175-275 (1835) ; Johnson , T he Ideology of W hite
Supremacy, o p . c it . s u p r a , n. 2 at 135.

8 See F r a n k l in , F rom Slavery to F reedom ; A H istory of 
A merican N egroes 213-238 (1947).



52

constitute a threat to the slave regime, free Negroes were 
denied the full rights and privileges of citizens. They 
enjoyed no equality in the courts, their right to assemble 
was denied, their movements were proscribed, and educa­
tion was withheld.7 Their plight, in consequence of these 
proscriptions, invited the unfavorable comparison of them 
with slaves and confirmed the views of many that Negroes 
could not profit by freedom. They were regarded by the 
white society as the “ very drones and pests of society,”  
pariahs of the land, and an incubus on the body politic.8 
Even this Court, in Scott v. Sanford, recognized this sub­
stantial body of opinion to the effect that free Negroes had 
no rights that a white man was bound to respect.

The few privileges that free Negroes enjoyed were 
being constantly whittled away in the early nineteenth 
century. By 1836, free Negroes were denied the ballot in 
every southern state and in many states outside the South.9 
In some states, they were denied residence on penalty of 
enslavement; and in some, they were banned from the 
mechanical trades because of the economic pressure upon 
the white artisans.10 Before the outbreak of the Civil 
War, the movement to reenslave free Negroes was under 
way in several states in the South.11

7 F r a n k l in , T he F ree N egro in  N orth Carolina, 1790-1860 
59-120 (1943).

8 D ew , R eview of th e  D ebates I n the  V irginia L egisla­
ture of 1831-1832, T he P ro-S lavery A rgument, 422 ff (18 53 ); 
Jen k in s , op. cit. supra, n. 5, 246.

9 W eeks, H istory of N egro S uffrage in  the  Sou th , 9 
P ol. Sci. Q. 671-703 (1 8 9 4 ); P orter, A  H istory of Suffrage 
in  th e  U nited States 87 ff (1 9 1 8 ); S hugg, N egro V oting in 
th e  A nte-B ellum Sou th , 21 J. N eg. H ist. 357-364 (1936).

10 V a . H ouse J. 84 (1831-1832) ; V a . L aws 1831, p. 107; Ch a n - 
n in g . H istory of th e  U nited States 136-137 (1 9 2 1 ); Greene 
and W oodson, T he N egro W age Earner 15 ff (1930).

11 F r a n k l in , T he E nslavement of F ree-N egroes in  N orth 
Carolina, 29 J. N eg. H ist. 401-428 (1944).



53

This ante-bellum view of the inferiority of the Negro 
persisted after the Civil AVar among those who already 
regarded the newly freed slaves as simply augmenting 
the group of free Negroes who had been regarded as “ the 
most ignorant . . . vicious, improverished, and degraded 
population of this country. ’ ’ 12

B. The Post War Struggle.

The slave system had supported and sustained a planta­
tion economy under which 1,000 families received approxi­
mately $50,000,000 a year with the remaining 600,000 
families receiving about $60,000,000 per annum. The per­
fection of that economy meant the ruthless destruction 
of the small independent white farmer who was either 
bought out or driven back to the poorer lands—the slave­
holders controlled the destiny of both the slave and the 
poor whites.13 Slaves were not only farmers and unskilled 
laborers but were trained by their masters as skilled 
artisans. Thus, slave labor was in formidable competition 
with white labor at every level, and the latter was the more 
expendable for it did not represent property and invest­
ment. Only a few white supervisory persons were needed 
to insure the successful operation of the plantation system.

After the Civil AVar, the independent white farmer 
entered into cotton cultivation and took over the lands 
of the now impracticable large plantations. Within a few 
years the independent farmer was engaged in 40% of the 
cotton cultivation, and by 1910 this percentage had risen 
to 67%.14 To the poor white Southerner the new Negro,

12 See Je n k in s , o p . c i t . su p ra ,  n. 5, 246.
13 W eston, T he P rogress of S lavery (1 8 5 9 ); H elper, T he 

Impending Crisis of th e  South (1 8 6 3 ); Johnson , T he N egro 
in A merican C ivilization , o p .  c it . s u p r a , n. 2 ; P h illips , A mer­
ican N egro Slavery, D ocumentary H istory of A merican 
Industrial Society-P lantation  and F rontier D ocuments 
(1910-11).

14 V ance , H u m an  Factors in  Cotton Cultivation (1 9 2 6 ); 
Sim k in s , T he T illm an  M ovement in S outh Carolina (1926).



54

as a skilled farmer and artisan in a free competitive 
economy, loomed as an even greater economic menace than 
he had been under the slave system. They became firm 
advocates of the Negro’s subjugation to insure their own 
economic well being.15

The plantation aristocracy sought to regain their 
economic and political pre-eminence by rebuilding the pre­
war social structure on the philosophy of the Negro's 
inferiority. This group found that they could build a 
new economic structure based upon a depressed labor 
market of poor whites and Negroes. Thus, to the aristo­
cracy, too, the Negro’s subjugation was an economic advan­
tage.

The mutual concern of these two groups of white 
Southerners for the subjugation of the Negro gave them a 
common basis for unity in irreconcilable resistance to the 
revolutionary change in the Negro’s status which the Civil 
War Amendments were designed to effect. Their attitude 
towards the Fourteenth Amendment is best described by a 
Mississippi editor who said that the southern states were 
not prepared “ to become parties to their own degrada­
tion.’ ’ 16 There were white southerners, however, as there 
always had been, who sought to build a society which would 
respect and dignify the rights of the Freedmen. But this 
group was in the minority and southern sentiment in bitter 
opposition to Negro equality prevailed. Accordingly, as 
a temporary expedient, even as an army of occupa­
tion has been necessary recently in Germany and Japan to 
prevent lawlessness by irreconcilables and the recrudes- 
cense of totalitarianism, so Union forces were needed dur­
ing Reconstruction to maintain order and to make possible 
the development of a more democratic way of life in the 
states recently in rebellion.

15 For discussion of this whole development see Johnson , T he 
N egro in  A merican C ivilization  (1930).

18 Coulter, T he South D uring R econstruction 434 (1947).



0 0

The Thirteenth, Fourteenth and Fifteenth Amendments 
and the Reconstruction effort, implemented by those in 
the South who were coming to accept the new concept of 
the Negro as a free man on full terms of equality, could 
have led to a society free of racism. The possibility of the 
extensive establishment and expansion of mixed schools 
was real at this stage. It was discussed in every southern 
state, and in most states serious consideration was given to 
the proposal to establish them.17

17 K n ig h t , P ublic Education i n  t h e  South 320 (1922). 
See also Part II infra, at pages 142-157.

There were interracial colleges, academies, and tributary gram­
mar schools in the South established and maintained largely by phil­
anthropic societies and individuals from the North. Although they 
were predominantly Negro institutions, in the Reconstruction period 
and later, institutions such as Fisk University in Nashville, Ten­
nessee, and Talladega College in Alabama usually had some white 
students. In the last quarter of the nineteenth century most of the 
teachers in these institutions were white. For accounts of co-racial 
education at Joppa Institute and Nat School in Alabama, Piedmont 
College in Georgia, Saluda Institute in North Carolina and in other 
southern schools, see B r o w n l e e , N e w  D a y  A s c e n d i n g  98-110 
(1946).

The effect of these institutions in keeping alive the possibility of 
Negroes and whites living and learning together on the basis of com­
plete equality was pointed out by one of the South’s most distin­
guished men of letters, George W. Cable. “ In these institutions,” 
he said:

“ . . . there is a complete ignoring of those race distinctions in 
the enjoyment of common public rights so religiously enforced 
on every side beyond their borders; and yet none of those 
unnamable disasters have come to or from them which the advo­
cates of these onerous public distinctions and separations 
predict and dread. On scores of Southern hilltops these schools 
stand out almost totally without companions or competitors 
in their peculiar field, so many refutations, visible and com­
plete, of the idea that any interest requires the colored Amer­
ican citizen to be limited in any of the civil rights that would 
be his without question if the same man were white.”

C a b l e , T h e  N e g r o  Q u e s t i o n  19 (1890).



56

C. The Compromise of 1877 and the Abandonment 
of Reconstruction.

The return to power of the southern irreconcilables was 
finally made possible by rapproachement between northern 
and southern economic interests culminating in the com­
promise of 1877. In the North, control of the Republican 
Party passed to those who believed that the protection and 
expansion of their economic power could best be served by 
political conciliation of the southern irreconcilables, rather 
than by unswerving insistence upon human equality and the 
rights guaranteed by the post war Amendments. In the 
1870’s those forces that held fast to the notion of the 
Negro’s preordained inferiority returned to power in state 
after state, and it is significant that one of the first measures 
adopted was to require segregated schools on a permanent 
basis in disregard of the Fourteenth Amendment.18

In 1877, out of the exigencies of a close and contested 
election, came a bargain between the Republican Party 
and the southern leaders of the Democratic Party which 
assured President Hayes’ election, led to the withdrawal 
of federal troops from the non-redeemed states and left the 
South free to solve the Negro problem without apparent

18 Georgia, where the reconstruction government was especially 
short-lived, passed a law in 1870 making it mandatory for district 
school officials to “ make all necessary arrangements for the instruc­
tion of the white and colored youth . . .  in separate schools. They shall 
provide the same facilities for each . . . but the children of the white 
and colored races shall not be taught together in any sub-district of the 
state.”  Ga. Laws 1870, p. 56. As soon as they were redeemed, the other 
southern states enacted similar legislation providing for segregated 
schools and gradually the states incorporated the provision into their 
constitutions. See, for example, Ark. Laws 1873, p. 423; T h e  
J o u r n a l  o f  t h e  T e x a s  C o n s t i t u t i o n a l  C o n v e n t i o n  1875, pp. 
608-616; Miss. Laws 1878, p. 103; S t e p h e n s o n , R a c e  D i s t i n c t i o n s  
i n  A m e r i c a n  L a w  170-176 (1908). When South Carolina and 
Lousiana conservatives secured control of their governments in 
1877, they immediately repealed the laws providing for mixed schools 
and established separate institutions for white and colored youth.



o f

fear of federal intervention. This agreement preserved 
the pragmatic and material ends of Reconstruction at the 
expense of the enforcement of not only the Fourteenth 
Amendment but the Fifteenth Amendment as well.19 For 
it brought in its wake peonage and disfranchisement as well 
as segregation and other denials of equal protection. 
Although there is grave danger in oversimplification of the 
complexities of history, on reflection it seems clear that 
more profoundly than constitutional amendments and wordy 
statutes, the Compromise of 1877 shaped the future of four 
million freedmen and their progeny for generations to 
come. For the road to freedom and equality, which had 
seemed sure and open in 1868, was now to be securely 
blocked and barred by a maze of restrictions and limitations 
proclaimed as essential to a way of life.

D. Consequences of the 1877 Compromise.

Once the South was left to its own devices, the militant 
irreconcilables quickly seized or consolidated power. Laws 
and practices designed to achieve rigid segregation and the 
disfranchisement of the Negro came on in increasing 
numbers and harshness.

19 The explanation for this reversal of national policy in 1877 and 
the abandonment of an experiment that had enlisted national support 
and deeply aroused the emotions and hopes has been sought in many 
quarters. The most commonly accepted and often repeated story 
is that authorized spokesmen of Hayes met representatives of the 
Southern Democrats at the Wormley House in Washington in late 
February, 1877, and promised the withdrawal of troops and aban­
donment of the Negro in return for the support of southern Con­
gressmen for Hayes against the Democratic candidate Samuel J. 
Tilden in the contested Presidential election. Recent investi­
gation has demonstrated that the so-called “ Wormley House Bar­
gain” , though offered by southern participants as the explanation, is 
not the full relevation of the complex and elaborate maneuvering 
which finally led to the agreement. See W o o d w a r d , R e u n i o n  a n d  
R e a c t i o n : T h e  C o m p r o m i s e  o f  1877 a n d  t h e  E n d  o f  R e c o n ­
s t r u c t io n  (1951) for an elaborate and detailed explanation of the 
compromise agreement.



58

The policy of the southern states was to destroy the 
political power of the Negro so that he could never seriously 
challenge the order that was being established. By the 
poll tax, the Grandfather Clause, the white primary, gerry­
mandering, the complicated election procedures, and by 
unabated intimidation and threats of violence, the Negro 
was stripped of effective political participation.20

The final blow to the political respectability of the 
Negro came with disfranchisement in the final decade 
of the Nineteenth Century and the early years of the 
present century when the discriminatory provisions were 
written into the state constitutions.21 That problem the 
Court dealt with during the next forty years from Guinn 
v. United States, 238 U. S. 347 to Terry v. Adams, 345 U. S. 
461.

A movement to repeal the Fourteenth and Fifteenth 
Amendments shows the extremity to which the irrecon- 
cilables were willing to go to make certain that the Negro 
remained in an inferior position. At the Mississippi Con­
stitutional Convention of 1890, a special committee studied 
the matter and concluded that “ the white people only are 
capable of conducting and maintaining the government” 
and that the Negro race, “ even if its people were educated, 
being wholly unequal to such responsibility, ’ ’ should be ex­
cluded from the franchise. It, therefore, resolved that the 
“ true and only efficient remedy for the great and important 
difficulties”  that would ensue from Negro participation lay

20 In 1890, Judge J. Chrisman of Mississippi could say that 
there had not been a full vote and a fair count in his state since 1875, 
that they had preserved the ascendancy of the whites by revolutionary 
methods. In plain words, he continued, “ We have been stuffing the 
ballot boxes, committing perjury and here and there in the State 
carrying the elections by fraud and violence until the whole machinery 
for election was about to rot down.”  Quoted in W o o d w a r d , O r ig in s  
o f  t h e  N e w  S o u t h  58 (1951).

21 K e y , S o u t h e r n  P o l it i c s  i n  S t a t e  a n d  N a t i o n  539-550 
(1949) ; W o o d w a r d , O r i g i n s  o f  t h e  N e w  S o u t h  205, 263 (1951).



59

in the “ repeal of the Fifteenth Amendment . . . whereby 
such restrictions and limitations may be put upon Negro 
suffrage as may be necessary and proper for the mainten­
ance of good and stable government. . 22

A delegate to the Virginia Constitutional Convention of 
1901-1902 submitted a resolution calling for a repeal of the 
Fifteenth Amendment because it is wrong, “ in that it pro­
ceeds on the theory that the two races are equally competent 
of free government. ’ ’ 23 Senator Edward Carmack of Ten­
nessee gave notice in 1903 that he would bring in a bill to 
repeal the Amendments.24 The movement, though unsuc­
cessful, clearly illustrates the temper of the white South.

Having consigned the Negro to a permanently inferior 
caste status, racist spokesmen, with unabashed boldness, 
set forth views regarding the Negro’s unassimilability and 
uneducability even more pernicious than those held by the 
old South. Ben Tillman, the leader of South Carolina, 
declared that a Negro should not have the same treatment 
as a white man, “ for the simple reason that God Almighty 
made him colored and did not make him white.”  He 
lamented the end of slavery which reversed the process of 
improving the Negro and “ inoculated him with the virus of

22 J o u r n a l  o f  t h e  M i s s i s s i p p i  C o n s t i t u t i o n a l  C o n v e n t i o n , 
1890, 303-304. Tillman, Vardaman, and other Southern leaders fre­
quently called for the repeal of the Amendments. Tillman believed 
"that such a formal declaration of surrender in the struggle to give the 
Negro political and civil equality would confirm the black man in his 
inferior position and pave the way for greater harmony between the 
races.”  S i m k i n s , P i t c h f o r k  B e n  T i l l m a n  395 (1944). Varda­
man called for repeal as a recognition that the Negro “ was physically, 
mentally, morally, racially, and eternally inferior to the white man.” 
See K i r w a n , R e v o l t  o f  t h e  R e d n e c k s  (1951).

23 J o u r n a l  o f  t h e  V i r g i n i a  C o n s t i t u t i o n a l  C o n v e n t i o n , 
1901-1902, pp. 47-48.

24 J o h n s o n , T h e  Id e o l o g y  o f  W h i t e  S u p r e m a c y , op. cit. 
supra, n. 2, 136 ff.



60

equality.” 25 These views were expressed many times in 
the disfranchising conventions toward the end of the 
century.26 Nor were the politicians alone in uttering such 
views about the Negro. Drawing on the theory of evolu­
tion as expressed by Darwin and the theory of progress 
developed by Spencer, persons of scholarly pretension 
speeded the work of justifying an inferior status for the 
Negro.27 Alfred H. Stone, having the reputation of a 
widely respected scholar in Mississippi, declared that the 
“ Negro was an inferior type of man with predominantly 
African customs and character traits whom no amount of 
education or improvement of environmental conditions 
could ever elevate to as high a scale in the human species 
as the white man.”  As late as 1910, E. H. Randle in his

25 S i m k i n s , P i t c h f o r k  B e n  T i l l m a n  395, 399 (1944). 
Tillman’s Mississippi counterpart, J. K. Vardanian, was equally 
vigorous in denouncing the Negro. He described the Negro as an 
“ industrial stumbling block, a political ulcer, a social scab, ‘a lazy, 
lying, lustful animal which no conceivable amount of training can 
transform into a tolerable citizen.’ ” Quoted in K i r w a n , o p . cit . 

supra, n. 22, at 146.
26 See, for example, Alabama Constitutional Convention, 1901, 

Official Proceedings, Vol. I, p. 12, Vol. II, pp. 2710-2711, 2713, 
2719, 2782, 2785-2786, 2793; Journal of the South Carolina Con­
vention, 1895, pp. 443-472; Journal of the Mississippi Constitutional 
Convention, 1890, pp. 10, 303, 701-702; Journal of the Louisiana 
Constitutional Convention, 1898, pp. 9-10.

27 See R o w l a n d , A M i s s i s s i p p i  V i e w  o f  R e l a t i o n s  i n  t h e  
S o u t h , A Paper (1903); H e r b e r t , et al.. W h y  t h e  S o l id  S o u t h ? 
O r  R e c o n s t r u c t i o n  a n d  I t s  R e s u l t s  (1890); B r u c e , T h e  
P l a n t a t i o n  N e g r o  A s  A  F r e e m a n  : O b s e r v a t i o n s  O n  H is  C h a r ­
a c t e r , C o n d i t i o n  a n d  P r o s p e c t s  I n  V i r g i n i a  (1889); S t o n e , 
S t u d i e s  i n  t h e  A m e r i c a n  R a c e  P r o b l e m  (1908) ; C a r r o l l , T h e  
N e g r o  A B e a s t  (1908); C a r r o l l , T h e  T e m p t e r  o f  E v e , O r t h e  
C r i m i n a l i t y  o f  M a n ’s  S o c i a l , P o l i t i c a l , a n d  R e l i g i o u s  E q u a l ­
i t y  W i t h  t h e  N e g r o , a n d  t h e  A m a l g a m a t i o n  t o  W h i c h  T h e s e  
C r i m e s  I n e v i t a b l y  L e a d  286 ff (1902); P a g e , T h e  N e g r o : T h e  
S o u t h e r n e r ’s P r o b l e m  126 ff (1904); R a n d l e , C h a r a c t e r i s t i c s  
o f  t h e  S o u t h e r n  N e g r o  51 ff (1910).



61

Characteristics of the Southern Negro declared that “ the 
first important thing to remember in judging the Negro 
was that his mental capacity was inferior to that of the 
white man. ’ ’ 28

Such was the real philosophy behind the late 19th 
Century segregation laws—an essential part of the whole 
racist complex. Controlling economic and political in­
terests in the South were convinced that the Negro’s sub­
jugation was essential to their survival, and the Court in 
Plessy v. Ferguson had ruled that such subjugation through 
public authority was sanctioned by the Constitution. This 
is the overriding vice of Plessy v. Ferguson. For without 
the sanction of Plessy v. Ferguson, archaic and provincial 
notions of racial superiority could not have injured and 
disfigured an entire region for so long a time. The full 
force and effect of the protection afforded by the Four­
teenth Amendment was effectively blunted by the vigorous 
efforts of the proponents of the concept that the Negro 
was inferior. This nullification was effectuated in all 
aspects of Negro life in the South, particularly in the field 
of education, by the exercise of state power.

As the invention of the cotton gin stilled the voices of 
Southern Abolitionists, Plessy v. Ferguson chilled the de­
velopment in the South of opinion conducive to the accep­
tance of Negroes on the basis of equality because those 
of the white South desiring to afford Negroes the 
equalitarian status which the Civil War Amendments had 
hoped to achieve were barred by state law from acting in 
accordance with their beliefs. In this connection, it is 
significant that the Populist movement flourished for a

28 Quoted in J o h n s o n , I d e o l o g y  o f  W h i t e  S u p r e m a c y , op. cit., 
supra, n. 2, p. 151. That the South was not alone in these views 
is clearly shown by Logan’s study of the Northern press between 1877 
and 1901. See L o g a n , T h e  N e g r o  i n  A m e r i c a n  L i f e  a n d  
T h o u g h t : T h e  N a d ir  1877-1901, cc. 9-10 (unpub. ms., to be pub. 
early in 1954 by the Dial Press).



6 2

short period during the 1890’s and threatened to take over 
political control of the South through a coalition of the 
poor Negro and poor white farmers.28 This movement was 
completely smashed and since Plessy v. Ferguson no similar 
phenomenon has taken hold.

Without the “ constitutional”  sanction which Plessy v. 
Ferguson affords, racial segregation could not have become 
entrenched in the South, and individuals and local communi­
ties would have been free to maintain public school systems 
in conformity with the underlying purposes of the Four­
teenth Amendment by providing education without racial 
distinctions. The doctrine of Plessy v. Ferguson was 
essential to the successful maintenance of a racial caste 
system in the United States. Efforts toward the elimina­
tion of race discrimination are jeopardized as long as the 
separate but equal doctrine endures. But for this doctrine 
we could more confidently assert that ours is a demo­
cratic society based upon a belief in individual equality.

E. Nullification of the Rights Guaranteed by the 
Fourteenth Amendment and the Reestablish­
ment of the Negro’s Pre-Civil War Inferior 

Status Fully Realized.

Before the end of the century, even without repeal of 
the Fourteenth and Fifteenth Amendments, those forces 
committed to a perpetuation of the slave concept of the 
Negro had realized their goal. They had defied the federal 
government, threatened the white defenders of equal rights, 
had used intimidation and violence against the Negro and 
had effectively smashed a political movement designed to 
unite the Negro and the poor whites. Provisions requir­

28 See C a r l e t o n , T h e  C o n s e r v a t i v e  S o u t h — A  P o l i t i c a l  
M y t h , 22 V a . Q. Rev. 179-192 (1946) ; L e w i n s o n , R a c e , C l a s s  
a n d  P a r t y  (1932) ; M o o n , T h e  B a l a n c e  o f  P o w e r — T h e  N eg r o  
V o t e , c . 4 (1948).



63

ing segregated schools were written into state constitutions 
and statutes. Negroes had been driven from participation 
in political affairs, and a veritable maze of Jim Crow laws 
had been erected to “ keep the Negro in his place”  (of 
inferiority), all with impunity. There was no longer any 
need to pretend either that Negroes were getting an educa­
tion equal to the whites or were entitled to it.

In the Constitutional Convention of Virginia, 1901-1902, 
Senator Carter Glass, in explaining a resolution requiring 
that state funds be used to maintain primary schools for 
four months before being used for establishment of higher- 
grades, explained that “ white people of the black sections 
of Virginia should be permitted to tax themselves, and 
after a certain point had been passed which would safe­
guard the poorer classes of those communities, divert that 
fund to the exclusive use of white children. . . . ”  30

Senator Vardaman thought it was folly to make such 
pretenses. In Mississippi there were too many people to 
educate and not enough money to go around, he felt. The 
state, he insisted, should not spend as much on the educa­
tion of Negroes as it was doing. “ There is no use multiply­
ing words about it,”  he said in 1899, “ the negro will not 
be permitted to rise above the station he now fills. ’ ’ Money 
spent on his education was, therefore, a “ positive unkind­
ness”  to him. “ It simply renders him unfit for the work 
which the white man has prescribed and which he will be 
forced to perform.” 31 Vardaman’s scholarly compatriot, 
Dunbar Rowland, seconded these views in 1902, when he 
said that “ thoughtful men in the South were beginning to 
lose faith in the power of education which had been hereto­
fore given to uplift the negro,”  and to complain of the

30 R e p o r t  o f  t h e  P r o c e e d in g s  a n d  D e b a t e s  o f  t h e  C o n s t i t u ­
t i o n a l  C o n v e n t i o n , State of Virginia, Richmond, June 12, 1901- 
June 26, 1902, p. 1677 (1906).

31 K i r w a n , o p . cit . su p ra , n. 22, at 145-146.



burden thus placed upon the people of the South in their 
poverty.32

The views of Tillman, Vardanian, Stone, Rowland, Glass 
and others were largely a justification for what had been 
done by the time they uttered them. The South had suc­
ceeded in setting up the machinery by which it was hoped 
to retain the Negro in an inferior status. Through separate, 
inferior schools, through an elaborate system of humiliating 
Jim Crow, and through effective disfranchisement of the 
Negro, the exclusive enjoyment of first-class citizenship had 
now become the sole possession of white persons.

And, finally, the Negro was effectively restored to an 
inferior position through laws and through practices, now 
dignified as “ custom and tradition.”  Moreover, this rela­
tionship—of an inferior Negro and superior white status— 
established through laws, practice, custom and tradition, 
was even more rigidly enforced than in the ante-bellum 
era. As one historian has aptly stated:

“ Whether by state law or local law, or by the 
more pervasive coercion of sovereign white opinion, 
‘ the Negro’s place’ was gradually defined—in the 
courts, schools, and libraries, in parks, theaters, 
hotels, and residential districts, in hospitals, insane

64

32 J o h n s o n , I d e o l o g y  o f  W h i t e  S u p r e m a c y , o p . c it . su p ra , 

n. 2, at 153. That this pattern is not an antiquated doctrine but a 
modern view may be seen in the current expenditure per pupil in 
average daily attendance 1949-1950: In Alabama, $130.09 was spent 
for whites against $92.69 for Negroes; in Arkansas $123.60 for 
whites and $73.03 for Negroes; in Florida $196.42 for whites, $136.71 
for Negroes; in Georgia, $145.15 for whites and $79.73 for Negroes; 
in Maryland, $217.41 for whites and $198.76 for Negroes; in Missis­
sippi, $122.93 for whites and $32.55 for Negroes; in North Carolina, 
$148.21 for whites and $122.90 for Negroes; in South Carolina, 
$154.62 for whites and $79.82 for Negroes; in the District of Colum­
bia, $289.68 for whites and $220.74 for Negroes. B l o s e  a n d  
J a r a c z , B i e n n i a l  S u r v e y  o f  E d u c a t i o n  i n  t h e  U n i t e d  S t a t e s , 
1948-50, T a b l e  43, “ S t a t i s t i c s  o f  S t a t e  S c h o o l  S y s t e m s , 1949- 
50” (1952).



65

asylums— everywhere including on sidewalks and in 
cemeteries. When complete, the new codes of White 
Supremacy were vastly more complex than the ante­
bellum slave codes or the Black Codes of 1865-1866, 
and, if anything, they were stronger and more rigidly 
enforced. ’ ’ 33

This is the historic background against which the validity 
of the separate but equal doctrine must be tested. History 
reveals it as a part of an overriding purpose to defeat the 
aims of the Thirteenth, Fourteenth and Fifteenth Amend­
ments. Segregation was designed to insure inequality—to 
discriminate on account of race and color—and the separate 
but equal doctrine accommodated the Constitution to that 
purpose. Separate but equal is a legal fiction. There never 
was and never will be any separate equality. Our Consti­
tution cannot be used to sustain ideologies and practices 
which we as a people abhor.

That the Constitution is color blind is our dedicated 
belief. We submit that this Court cannot sustain these 
school segregation laws under any separate but equal con­
cept unless it is willing to accept as truths the racist 
notions of the perpetuators of segregation and to repeat 
the tragic error of the Plessy court supporting those who 
would nullify the Fourteenth Amendment and the basic tenet 
of our way of life which it incorporates. We respect­
fully suggest that it is the obligation of this Court to 
correct that error by holding that these laws and consti­
tutional provisions which seek to condition educational 
opportunities on the basis of race and color are historic 
aberrations and are inconsistent with the federal Constitu­
tion and cannot stand. The separate but equal doctrine 
of Plessy v. Ferguson should now be overruled.

33 W oodward, O rigins of the  N ew  South 212 (1951).



6 6

CONCLUSION TO PART ONE

In short, our answer to Question. No. 3 proposed by the 
Court is that it is within the judicial power, whatever the 
evidence concerning Questions 2(a) and (b) may disclose, 
to hold that segregated schools violate the Fourteenth 
Amendment, and for the reasons hereinabove stated that 
such power should now be exercised.

W h e r e f o r e , i t  is  r e s p e c t fu lly  s u b m itte d  th a t  co n stitu ­
t io n a l p r o v is io n s  a n d  s ta tu te s  in v o lv e d  in  th ese  ca se s  are 

in v a l id  a n d  s h o u ld  be s t ru c k  do w n .



6 7

PART TWO

This portion of the brief is directed to questions one 
and two propounded by the Court:

“  1. What evidence is there that the Congress which 
submitted and the State legislatures and conventions 
which ratified the Fourteenth Amendment contem­
plated or did not contemplate, understood or did not 
understand, that it would abolish segregation in pub­
lic schoolsf
“ 2. If neither the Congress in submitting nor the 
States in ratifying the Fourteenth Amendment 
understood that compliance with it would require the 
immediate abolition of segregation in public schools, 
was it nevertheless the understanding of the framers 
of the Amendment
“ (a) that future Congresses might, in the exercise 
of their power under Sec. 5 of the Amendment, abol­
ish such segregation, or
“ (b) that it would be within the judicial power, in 
light of future conditions, to construe the Amend­
ment as abolishing such segregation of its own 
forcef”

I.

The Fourteenth Amendment was intended to de­
stroy all caste and color legislation in the United States, 
including racial segregation.

Research by political scientists and historians, special­
ists on the period between 1820 and 1900, and other experts 
in the field, as well as independent research by attorneys in 
these cases, convinces us that: (1) there is ample evidence 
that the Congress which submitted and the states which rati­
fied the Fourteenth Amendment contemplated and under­
stood that the Amendment would deprive the states of the 
power to impose any racial distinctions in determining when,



68

where, and how its citizens would enjoy the various civil 
rights afforded by the states; (2) in so far as views of 
undeveloped public education in the 1860’s can be applied 
to universal compulsory education in the 1950’s, the right 
to public school education was one of the civil rights with 
respect to which the states were deprived of the power to 
impose racial distinctions; (3) while the framers of the 
Fourteenth Amendment clearly intended that Congress 
should have the power to enforce the provisions of the 
Amendment, they also clearly intended that the Amend­
ment would be prohibitory on the states without Con­
gressional action.

The historic background of the Fourteenth Amendment 
and the legislative history of its adoption show clearly that 
the framers intended that the Amendment would deprive 
the states of power to make any racial distinction in the 
enjoyment of civil rights. It is also clear that the statutes 
involved in these cases impose racial distinctions which 
the framers of the Amendment and others concerned with 
its adoption understood to be beyond the power of a state 
to enforce.

The framers of the Fourteenth Amendment were men 
who came to the 39th Congress with a well defined back­
ground of Abolitionist doctrine dedicated to the equali- 
tarian principles of real and complete equality for all men. 
Congressional debates during this period must be read 
with an understanding of this background along with the 
actual legal and political status of the Negro at the end of 
the Civil War. This background gives an understanding 
of the determination of the framers of the Fourteenth 
Amendment to change the inferior legal and political status 
of Negroes and to give them the full protection of the 
Federal Government in the enjoyment of complete and 
real equality in all civil rights.34

34tenBroek, T h e  A n t i s l a v e r y  O r i g i n s  o f  t h e  F o u r t e e n t h  
A m e n d m e n t  185, 186 (1951).



69

A. The Era Prior to the Civil War Was Marked 
By Determined Efforts to Secure Recognition of 
the Principle of Complete and Real Equality 
For All Men Within the Existing Constitutional 
Framework of Our Government.

The men who wrote the Fourteenth Amendment were 
themselves products of a gigantic antislavery crusade 
which, in turn, was an expression of the great humanitarian 
reform movement of the Age of Enlightenment. This 
philosophy upon which the Abolitionists had taken their 
stand had been adequately summed up in Jefferson’s basic 
proposition “ that all men are created equal”  and “ are 
endowed by their Creator with certain unalienable Rights.”  
To this philosophy they adhered with an almost fanatic 
devotion and an unswerving determination to obliterate 
any obstructions which stood in the way of its fulfillment. 
In their drive toward this goal, it may be that they thrust 
aside some then accepted notions of law and, indeed, that 
they attempted to give to the Declaration of Independence a 
substance which might have surprised its draftsmen. No 
matter, the crucial point is that their revolutionary drive 
was successful and that it was climaxed in the Amendment 
here under discussion.

The first Section of the Fourteenth Amendment is the 
legal capstone of the revolutionary drive of the Abolition­
ists to reach the goal of true equality. It was in this spirit 
that they wrote the Fourteenth Amendment and it is in the 
light of this revolutionary idealism that the questions pro­
pounded by this Court can best be answered.

In the beginning, the basic and immediate concern of 
the Abolitionists was necessarily slavery itself. The total 
question of removing all other discriminatory relationships 
after the abolition of slavery was at first a matter for the 
future. As a consequence, the philosophy of equality was 
in a state of continuous development from 1830 through 
the time of the passage of the Fourteenth Amendment. 
However, the ultimate objective was always clearly in 
mind—absolute and complete equality for all Americans.



70

During the pre-Civil War decades, the antislavery move­
ment here and there began to develop special meaning and 
significance in the legal concept of “ privileges and im­
munities,”  the concept of “ due process”  and the most 
important concept of all for these cases, “ equal protection 
of the laws.”  In the immediately succeeding sections, we 
shall show how the development of these ideas culminated 
in a firm intention to obliterate all class distinction as a 
part of the destruction of a caste society in America.

The development of each of these conceptions was often 
ragged and uneven with much overlapping: what was 
“ equal protection”  to one was “ due process”  or “ privilege 
and immunity”  to another. However, regardless of the 
phrase used, the basic tenet of all was the uniform belief 
that Negroes were citizens and, as citizens, freedom from 
discrimination was their right. To them “ discrimination” 
included all forms of racial distinctions.

E q u ality  U nder  L aw

One tool developed to secure full standing for Negroes 
was the concept of equal protection of the laws. It was 
one thing, and a very important one, to declare as a 
political abstraction that “ all men are created equal,” 
and quite another to attach concrete rights to this state 
of equality. The Declaration of Independence did the 
former. The latter was Charles Sumner’s outstanding 
contribution to American law.

The great abstraction of the Declaration of Independ­
ence was the central rallying point for the Abolitionists. 
When slavery was the evil to be attacked, no more was 
needed. But as some of the New England states became 
progressively more committed to abolition, the focus of 
interest shifted from slavery itself to the status and rights 
of the free Negro. In the Massachusetts legislature in 
the 1840’s, Henry Wilson, manufacturer, Abolitionist, 
and later United States Senator and Vice President, led



71

the fight against discrimination, with “ equality”  as his 
rallying cry.35 36 One Wilson measure adopted by the 
Massachusetts Legislature in 1845 gave the right to recover 
damages to any person “ unlawfully excluded”  from the 
Massachusetts public schools.38

Boston thereafter established a segregated school for 
Negro children, the legality of which was challenged in 
Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849). 
Charles Sumner, who later was to play such an important 
role in the Congress that formulated the Fourteenth Amend­
ment, was counsel for Roberts. His oral argument, which 
the Abolitionists widely circulated, is one of the landmarks 
in the crystallization of the equalitarian concept.

This case was technically an action for damages under 
the Wilson Act. However, Sumner attacked segregation 
in public schools on the broader ground that segregation 
violated the Massachusetts Constitution which provided: 
“ All men are created free and equal” , and it was from this 
base that he launched his attack.

“ Of Equality I shall speak, not as a sentiment, 
but as a principle.. . .  * * * Thus it is with all moral 
and political ideas. First appearing as a sentiment, 
they awake a noble impulse, tilling the soul with gener­
ous sympathy, and encouraging to congenital effort. 
Slowly recognized, they finally pass into a formula, 
to be acted upon, to be applied, to be defended in 
the concerns of life, as principles.” 37

“ Equality before the law”  38 was the formula he employed. 
He traced the equalitarian theory from the eighteenth

35 For an account of Wilson’s struggles against anti-miscegena­
tion laws, against jim-crow transportation and jim-crow education, 
see Nason, L ife of H enry W ilson 48 et seq. (1876).

36 Massachusetts Act 1845, § 214.
37 2 W orks of Charles Sumner 330, 335-336 (1875). The 

entire argument is reprinted at 327 et seq.

™ I d .  at 327, 330-331.



7 2

century French philosophers through the French Revolu­
tion into the language of the French Revolutionary Con­
stitution of 1791,30 the Constitution of February 1793,40 
the Constitution of June 1793 41 and the Charter of Louis 
Phillipe.42 Equality before the law, i.e., equality of rights, 
was the real meaning of the Massachusetts constitutional 
provision. Before it “ all . . . distinctions disappear” :

“ He may be poor, weak, humble, or black—he 
may be Caucasian, Jewish, Indian or Ethiopian race 
—he may be of French, German, English or Irish 
extraction; but before the Constitution of Massa­
chusetts all these distinctions disappear. He is not 
poor, weak, humble, or black; nor is he French, 
German, English or Irish; he is a MAN, the equal of 
all his fellowmen. ”  43

Hence, he urged, separate schools are illegal.
The Massachusetts court rejected Sumner’s argument 

and refused to grant relief. Subsequent thereto, in 1853, 
the Legislature of Massachusetts, after careful considera­
tion of the problem involving hearings and reports, amended 
the Wilson statute by providing, among other things, that 
in determining the qualifications of school children in public 
schools in Massachusetts “ no distinction was to be made on 
account of the race, color or religious opinions of the 
appellant or scholar.”  44

The Committee on Education of the House of Repre­
sentatives in its report recommending adoption of this bill 
carefully considered the arguments for and against the 
measure and concluded :

;i» “ Men are born and continue free and equal in their rights.” 
Id . at 337.

40 “ The law ought to be equal for all.” Id. at 338.
41 “ All men arc equal by nature and before the la w ." Id. at 339. 
43 “ Frenchmen are equal b efore  the law. . . Ibid.

43 Id. at 341-342.
44 General Laws of Mass. c . 256, § 1 (1855).



73

“ Your committee believe, in the words of another, 
that ‘ The only security we can have for a healthy 
and efficient system of public instruction rests in the 
deep interest and vigilant care with which the more 
intelligent watch over the welfare of the schools. 
This only will secure competent teachers, indefatig­
able exertion, and a high standard of excellence; and 
where the colored children are mingled up with the 
mass of their more favored fellows, they will par­
take of the advantages of this watchful oversight. 
Shut out and separated, they are sure to be neglected 
and to experience all the evils of an isolated and 
despised class. One of the great merits of our 
system of public instruction is the fusion of all classes 
which it produces. From a childhood which shares 
the same bench and sports there can hardly arise a 
manhood of aristocratic prejudice or separate castes 
and classes. Our common-school system suits our 
institutions, promotes the feeling of brotherhood, and 
the habit of republican equality. To debar the colored 
race from these advantages, even if we still secured 
to them equal educational results, is a sore injustice 
and wrong, and is taking the surest means of per­
petuating a prejudice that should be depreciated and 
discountenanced by all intelligent and Christian 
men.”  45

Thus, the argument and theories advanced by Sumner, 
although rejected by the Supreme Court of Massachusetts, 
finally became incorporated into the law of the State of 
Massachusetts. More important, however, is the fact that 
the argument of Sumner was widely distributed throughout 
the country during the period immediately preceding the 
consideration of the Fourteenth Amendment.4" As a con­
sequence it became a fundamental article of faith among 4

4li Report of Committee on Education to House of Representatives, 
Commonwealth of Massachusetts, March 17, 1855.

4,1 Among those active in distributing the argument was Salmon 
P. Chase. Diary and Correspondence ok Salmon P. Chase, 
Chase to Sumner, Dec. 14,1849, in 2 Ann. Rep, Ain, Hist. Ass’n. 188 
(1902).



74

the Radical Republicans that from a constitutional stand­
point racial segregation was incompatible with constitu­
tional guarantees of equal protection.47

The analysis of the available materials covering the 
period from 1830 to 1860, while important to this point, is 
too voluminous to be included in the argument at this point. 
We have, therefore, placed this analysis in a supplement 
at the end of the brief. The analysis of these materials 
compels the following historical conclusions:

1. To the Abolitionists, equality was an absolute— not 
a relative—concept which comprehended that no legal recog­
nition be given to racial distinctions of any kind. The 
notion that any state could require racial segregation was 
totally incompatible with this doctrine.

2. The phrases— “ privileges and immunities,”  “ equal 
protection,”  and “ due process” —that were to appear in the 
Amendment had come to have a specific significance to 
opponents of slavery in the United States. Proponents of 
slavery knew and understood what that significance was, 
even as they disagreed with these theories. Members of 
the Congress that proposed the Amendment, shared this 
knowledge.

3. These radical Abolitionists, who had been in the 
minority prior to the Civil War, gained control of the Re­
publican party in Congress during the course of the war 
and thus emerged in a dominant position in the Congress 
which was to write the Fourteenth Amendment. Ten of 
the members of the Joint Committee of Fifteen were men 
who had definite antislavery backgrounds and two others 
had likewise opposed slavery.

47 See, for example, Sumner resolution offered Congress on 
December 4, 1865 which called for “ The organization of an educa­
tional system for the equal benefit of all without distinction of color 
or race.”  Cong. Globe, 39th Cong.. 1st Sess. 2 (1865-1866).



t o

4. When the Joint Committee of Fifteen translated into 
constitutional provisions the equalitarian concepts held and 
widely bruited about in the struggle against slavery, it used 
the traditional phrases that bad all become freighted with 
equalitarian meaning in its widest sense: “ equal protec­
tion” , “ privileges and immunities”  and “ due process.”

In these respects history buttresses and gives particular 
content to the recent admonition of this Court that 
“ [wjhatever else the framers sought to achieve, it is clear 
that the matter of primary concern was the establishment of 
equality in the enjoyment of basic civil and political rights 
and the preservation of those rights from discriminatory 
action on the part of the States based on considerations of 
race and color.”  Shelley v. Kraemer, 334 U. S. 1, 23.

Despite the high principles and dedication of the leaders 
of the Abolitionist movement, their program ran into re­
peated roadblocks from both individual groups and state 
machinery. The movement was not only blocked in so far 
as the abolition of slavery itself was concerned, but was 
met by an ever increasing tendency on the part of all the 
southern states and some northern states to gradually 
cut down on the rights of free Negroes and to bring their 
status nearer and nearer to that of slaves. This counter­
movement culminated in the decision of the Supreme Court 
in the Dred Scott case (Scott v. Sandford, 19 How. 393) 
that no person of the “ African race, whether free or not”  
could enjoy, under the Constitution of the United States, 
any right or protection whatsoever. All Negroes were 
thereby left, by the principles of that case, to the absolute, 
unrestrained power of the several states.

B. The Movement For Complete Equality Reached 
Its Successful Culmination in the Civil War and 
the Fourteenth Amendment.

The onset of the Civil War marked the turning point of 
the Abolitionists’ drive to achieve absolute equality for all 
Americans. The first great success came on January 1,



76

1863, when President Lincoln’s Emancipation Proclamation 
freed all slaves in those areas in insurrection against the 
United States. Obviously this was far from a complete 
victory. The doctrines enunciated by Chief Justice Taney 
in the Dred Scott case were still unqualified and remained 
as a part of the “ constitutional law’ ’ of the time.

In February, 1865, the Abolitionist-dominated 38th 
Congress adopted and submitted to the states what was 
to become the Thirteenth Amendment to the Constitution. 
However, the Radical Republicans in Congress were in­
tensely aware that the abolition of slavery constituted only 
a partial attainment of their goal of complete political and 
legal equality for Negroes. They had already determined 
as early as the spring and summer of 1862 to strike at the 
objective of federal statutory and constitutional guarantees 
for Negro equality. As yet, however, their thinking had 
not succeeded in distilling clearly a series of specifically 
defined legal and political objectives which they proposed 
to write into federal law and Constitution.

It should be observed in passing that their reason for 
this obviously was not necessarily pure Abolitionist ideal­
ism. They were in part motivated by hard practical con­
siderations of Republican Party ascendency, and the fear 
that a restored South, in which Negroes were not given 
complete legal and political equality, would fall into the 
hands of a pre-war conservative white political leadership 
which would threaten the national political control of the 
Radical Republicans themselves. Thus their idealistic, 
social philosophy and their hard practical considerations 
of party interest dovetailed very nicely.48

It was to require the events of 1865-66, most notably 
the attempt to restore political rule in the South and the 
attempt to impose an inferior non-citizenship status upon 
the Negro in the restored southern states, to make clear to

48tenBroek, T he  A ntislavery O rigins of th e  F ourteenth 
A m endm ent 117-119 (1951).



77

the Radical Republicans their new constitutional objectives 
and the means they would seek to obtain it.

C. The Principle of Absolute and Complete Equal­
ity Began to Be Translated Into Federal Law 
as Early as 1862.

In 1862 Congress addressed itself to an immediate prob­
lem over which it had authority. In debating the bill which 
was to abolish slavery in the District of Columbia, Repre­
sentative Bingham said: ‘ ‘ The great privilege and immun­
ity of an American citizen to be respected everywhere in 
this land, and especially in this District, is that they shall not 
be deprived of life, liberty, or property without due process 
of law” .4” Representative Fessenden concluded: ‘ ‘ If I
do not mistake, it is quite apparent that when this bill 
shall be put on its final passage it will proclaim liberty to 
the slaves within this District. These men—for Cod created 
them men, though man has used them as goods and chat­
tels—slaves—these men and women and children will, when 
the President of the United States signs this bill, be trans­
lated . . .  Lto a] condition in which they are invested with the 
rights of freemen, upon which none can trespass with im­
punity ; since over the person of the free black as well as the 
free white man there is thrown the broad shield of the 
nation’s majesty.”  * 50 The bill was enacted into law.51

Simultaneously Congress discontinued the application 
of the Black Codes of Maryland and Virginia to the Dis­
trict of Columbia.52

Between the time of the Emancipation Proclamation in 
1863 and the formulation of the Fourteenth Amendment, 
Congress took several forward steps to secure complete 
equality for the class so recently freed. These steps came 
in the form of particular solutions to particular problems.

4” Cong. Globe, 37th Cong., 2d Sess. 1639 (1862).
50 Id . at 1642.
51 12 Stat. 376 (1862).
52 12 Stat. 407 (1862).



78

To this Congress (38th), the most immediate problem was 
one which fell under their glance daily, the problem of 
transportation in the District of Columbia. Congressional 
treatment of this problem is of significance because it re­
veals the early determination of the Radical Republicans 
to prohibit racial segregation.

In 1863, Congress amended the charter of the Alexan­
dria and Washington Railroad to eliminate the practice of 
putting white and Negro passengers in separate parts of 
the street cars.53 When, in 1864, the Washington and 
Georgetown street car company attempted to put colored 
passengers in cars separate from those of the white pas­
sengers, Senator Sumner denounced the practice in the 
Senate and set forth on his crusade to prohibit all racial 
distinctions by first eliminating street car segregation in 
the District.54 55 * In 1865, he carried to passage a law appli­
cable to all District carriers that “ no person shall be ex­
cluded from any car on account of color. ’ ,55

The debate on the street car bill covered the entire issue 
of segregation in transportation. Those who supported 
prohibition of segregation did so on the ground that any 
such separation was a denial of equality itself. Senator 
Wilson denounced the “ Jim Crow car,”  declaring it to be 
“ in defiance of decency.” 5,! Senator Sumner persuaded 
his brethen to accept the Massachusetts view, saying that 
in Massachusetts, “ the rights of every colored person are 
placed on an equality with those of white persons. They 
have the same right with white persons to ride in every 
public conveyance in the Commonwealth. ’ ’ 57 Thus, when 
Congress in 1866 framed the Fourteenth Amendment, it 
did so against a background of Congressional determination 
that segregation in transportation was unequal, unjust, and 
was “ in defiance of decency.”

53 12 Stat. 805 (1863).
54 Cong. Globe, 38th Cong., 1st Sess. 553, 817 (1864).
55 13 Stat. 536, 537 (1865).
5B Cong. Globe, 38th Cong., 1st Sess. 3132, 3133 (1864).
57 Id . at 1158.



79

D. From the Beginning the Thirty-Ninth Congress 
Was Determined to Eliminate Race Distinctions 
From American Law.

The 39th Congress which was to propose the Four­
teenth Amendment convened in December 1865 with the 
realization that, although slavery had been abolished, the 
overall objective, the complete legal and political equality 
for all men had not been realized. This was dramatically 
emphasized by the infamous Black Codes being enacted 
throughout the southern states. These Black Codes had 
the single purpose of providing additional legislative sanc­
tion to maintain the inferior status for all Negroes which had 
been judicially decreed in the opinion in the case of Scott 
v. Saondford, 19 How. 393.

The Black Codes, while they grudgingly admitted that 
Negroes were no longer slaves, nonetheless used the states’ 
power to impose and maintain essentially the same in­
ferior, servile position which Negroes had occupied. prior 
to the abolition of slavery. These codes thus followed the 
legal pattern of the ante-bellum slave codes. Like their 
slavery forerunners, these codes compelled Negroes to 
work for arbitrarily limited pay; restricted their mobility; 
forbade them, among other things, to carry firearms; for­
bade their testimony in a court against any white man; and 
highly significant here, contained innumerable provisions 
for segregation on carriers and in public places. In at least 
three states these codes prohibited Negroes from attending 
the public schools provided for white children.58

58 See the summary in Senator Wilson’s speech before Congress, 
Cong. Globe, 39th Cong.. 1st Sess. 39-40. 589 (1866) ; 1 F leming , 
Documentary H istory of R econstruction 273-312 (1906); 
McP herson, T he P olitical H istory of the  U nited States 
During the  P eriod of R econstruction 29-44 (1880).



8 0

It was this inferior caste position which the Radical 
Republicans in Congress were determined to destroy. They 
were equally determined that by federal statutory or con­
stitutional means, or both, Congress would not only invali­
date the existing Black Codes but would proscribe any and 
all future attempts to enforce governmentally-imposed 
caste distinctions.

Congress was well aware of the fact that to take this 
step involved a veritable revolution in federal-state rela­
tions. A  number of Senators and Representatives in the 
39th Congress, by speech and resolution, made it eminently 
clear that they aimed at nothing less than the total destruc­
tion of all hierarchy, oligarchy and class rule in the south­
ern states. One of the more notable resolutions of this kind 
was that of Senator Charles Sumner, introduced on Decem­
ber 4,1865, at the opening of the session. This resolution as­
serted that no state formerly declared to be in rebellion was 
to be allowed to resume its relation to the Union until “ the 
complete reestablishment of loyalty . . . ”  and:

4 ‘ The complete suppression of all oligarchical pre­
tensions, and the complete enfranchisement of all 
citizens, so that there shall be no denial of rights on 
account of color or race; but justice shall be impar­
tial, and all shall be equal before the law.”

Another requirement of Sumner’s resolution called fo r :
“ The organization of an educational system for 

the equal benefit of all without distinction of color or 
race.” 59

Sumner thus recognized the close relationship between 
the destruction of the southern ruling class and the elimina­
tion of segregation in the educational system.

Representative Jehu Baker of Illinois introduced a simi­
lar resolution in the House of Representatives, which read 
in part as follows: 69

69 Cong. Globe, 39th Cong., 1st Sess. 2 (1865-1866).



8 1

“ Whereas class rule and aristocratic principles 
of government have burdened well nigh all Europe 
with enormous public debts and standing armies, 
which press as a grievous incubus on the people, 
absorbing their substance, impeding their culture, 
and impairing their happiness; and whereas the class 
rule and aristocratic element of slaveholding which 
found a place in our Republic has proved itself, in 
like manne, hurtful to our people . . . Therefore,

“ Resolved, (as the sense of this House,) That 
once for all we should have done with class rule and 
aristocracy as a privileged power before the law in 
this nation, no matter where or in what form they 
may appear; and that, in restoring the normal rela­
tions of the States lately in rebellion, it is the high 
and sacred duty of the Representatives of the people 
to proceed upon the true, as distinguished from the 
false, democratic principle, and to realize and secure 
the largest attainable liberty to the whole people of 
the Republic, irrespective of class or race.” 80

There were numerous other resolutions and speeches ex­
pressing similar sentiments. All of the resolutions were 
referred to the Joint Committee on Reconstruction and are 
a part of the background of that committee’s work in the 
framing of the Fourteenth Amendment.

These expressions of principle were started toward 
statutory fruition by Senator Trumbull’s Bill to enlarge 
the powers of the Freedmen’s Bureau. The debates which 
followed the introduction of his Senate Bill No. 60 are of par­
ticular interest because they make it clear that a large num­
ber of the Radical Republicans regarded the destruction 
of segregation in the school districts of the southern states 
as a highly desirable legislative objective. What followed 
amounted to a forthright assault on the idea that there 
could be racial segregation in the public schools.

80 Cong. Globe, 39th Cong. 1st Sess. 69 (1865-1866).



82

Representative Hubbard of Connecticut expressed the 
broad pattern of thinking of which this bill was a part:

“ The words, caste, race, color, ever unknown to 
the Constitution, . . . are still potent for evil on 
the lips of men whose minds are swayed by preju­
dice or blinded by passion, and the freedmen need 
the protection of this bill.

“ The era is dawning when it will be a reproach 
to talk in scorn about the distinctions of race or 
color. Our country is, and must be, cosmo­
politan. . . .

“ It is in vain that we talk about race, caste, or 
color. . . . ” 61

Likewise, Representative Rousseau of Kentucky stated:

“  . . . Here are four school-houses taken posses­
sion of, and unless they mix up white children with 
hlack, the white children can have no chance in these 
schools for instruction. And so it is wherever this 
Freedmen’s Bureau operates.” 02

Representative Dawson of Pennsylvania recognized 
that the supporters of the b ill:

“ . . . hold that the white and black race are 
equal. . . . Their children are to attend the same 
schools with white children, and to sit side by side 
with them. . . . ” 63

Of more importance was S.61 “ A  Bill to Protect All 
Persons in the United States in Their Civil Rights and 
Furnish the Means of Vindication.”  This bill, though in­
troduced through Senator Trumbull in his capacity as 
Chairman of the Judiciary Committee, was in fact a meas­
ure sponsored by the entire Radical Republican majority.

01 Id . at 630.
02 Id . at App. 71.
63 Id . at 541.



83

The bill forbade any “ discrimination in civil rights or 
immunities”  among “ the people of the United States on 
account of race, color, or previous condition of slavery” . 
It provided that all persons should have “ full and equal 
benefits of all laws”  for the security of their persons and 
their property.

In a lengthy speech, Senator Trumbull defended the 
wisdom and constitutionality of this bill in detail. The 
Thirteenth Amendment, he argued, made the bill both con­
stitutional and necessary.

“ Then, sir, I take it that any statute which is not 
equal to all, and which deprives any citizen of civil 
rights "which are secured to other citizens, is an un­
just encroachment upon his liberty; and is, in fact, 
a badge of servitude which, by the Constitution, is 
prohibited.” 64

Senator Trumbull’s argument precipitated a lengthy de­
bate on the constitutional issues. Opponents of the meas­
ure, conceding that Congress had the power under the Thir­
teenth Amendment to assure freedom of Negroes, denied 
that Congress had the power to endow Negroes with citizen­
ship and civil rights. To sustain their position they pointed 
to the fact that Negroes who were freed prior to the Eman­
cipation Proclamation were not treated as citizens and 
under the authority of the Dred Scott case could not be 
citizens.65

In reply, Trumbull advanced the additional constitu­
tional argument that, once slavery was abolished, the natu­
ralization clause of the Constitution provided Congress with 
the power to endow Negroes with the citizenship the Dred 
Scott case had held they could not otherwise enjoy. Trum­
bull thus adopted the position of Chief Justice Taney in

84 Id . at 474.
65 See statements of Senators Van Winkle of West Virginia 

and Saulsbury of Delaware. Id . at 475 ff.



84

the Dred Scott case that the power to confer citizenship was 
vested in the federal, not the state government.

Another major area of controversy with respect to the 
bill was as to its scope. Time and again the Democrats and 
the more conservative Republicans in the Senate asserted 
that the bill would invalidate every state law which pro­
vided for racial segregation, or provided a different rule 
for persons of different races.66 For example, there was 
the charge of Senator Cowan, a Republican of Pennsylvania, 
who said:

“ Now, as I understand the meaning . . .  of this 
bill, it is that there shall be no discrimination made 
between the inhabitants of the several States of this 
Union, none in any way. In Pennsylvania, for the 
greater convenience of the people, and for the 
greater convenience, I may say, of both classes of 
the people, in certain districts the Legislature has 
provided schools for colored children, has discrimi­
nated as between the two classes of children. We put 
the African children in this school-house and the 
white children over in that school-house, and edu­
cate them there as we best can. Is this amendment 
to the Constitution of the United States abolishing 
slavery to break up that system which Pennsylvania 
has adopted for the education of her white and col­
ored children? Are the school directors who carry 
out that law and who make this distinction between 
these classes of children to be punished for a viola­
tion of this statute of the United States? To me it 
is monstrous.” 67

Senator Howard in reply gave the Conservatives no 
com fort:

“ I do not understand the bill which is now before 
us to contemjDlate anything else but this, that in re­
spect to all civil rights . . . there is to be hereafter

66 Id . at 500 ff.
67 Id . at 500.



85

no distinction between the white race and the black 
race. It is to secure to these men whom we have made 
free the ordinary rights of a freeman and nothing 
else. . . . There is no invasion of the legitimate 
rights of the States. ’ ’ 68

But, perhaps the best answer of all to these assertions 
of the sweeping character of the bill was given by Senator 
Morrill of Vermont, a member of the Joint Committee of 
Fifteen:

“ The Senator from Kentucky tells us that the 
proposition [federal guarantee of civil rights] is 
revolutionary, . . .  I admit that this species of legis­
lation is absolutely revoluntionary. But are we not 
in the midst of revolution? Is the Senator from Ken­
tucky utterly oblivious to the grant results of four 
years of war?” 08 09

It is highly significant that Senator Morrill was not only 
a member of the Joint Committee of Fifteen, even then en­
gaged in drafting the Fourteenth Amendment, but that he 
later was to insist that the Fourteenth Amendment pro­
hibited separate but equal provisions in state school legis­
lation.

After two full days of debate, the Senate passed the 
Trumbull bill by a vote of 33 to 12.

The only rational inference to be drawn from the legis­
lative history of the Trumbull bill in the Senate is that the 
great majority of that body was determined to bar the 
states from using their power to impose or maintain racial 
distinctions. The same majority was of the opinion that the 
federal government had constitutional authority so to de­
limit such action by the state.

In the House, the Conservatives pointed out force­
fully that the text of the bill presented would destroy all

08 Id . at 504.
09 Id . at 570.



8 6

limitations on federal power over state legislation and 
would likewise destroy all state legislative and judicial 
provisions making distinctions against Negroes. Repre­
sentative Rogers observed:

“ In the State of Pennsylvania there is a dis­
crimination made between the schools for white 
children and the schools for black. The laws there 
provide that certain schools shall be set apart for 
black persons, and certain schools shall be set apart 
for white persons. Now, if this Congress has a right, 
by such a bill as this, to enter the soveriegn domain 
of a State . . . then, by parity of reasoning, it has a 
right to enter the domain of that State and inflict 
upon the people there, without their consent, the right 
of the negro to enjoy the elective franchise. . . . ” 70

In a somewhat disingenous attempt to deal with the 
argument of the Conservatives, Representative Wilson of 
Iowa, chairman of the House Judiciary Committee, argued 
vaguely that the bill would not have the effect of destroying 
all legislation discriminating on the basis of race.71 Never­
theless Wilson broadly defined the term civil rights as used 
in the bill as being “ the natural rights of man.”  Moreover, 
he observed that “ immunities”  secured “ to citizens of the 
United States equality in the exemptions of the law.” 72

At this point, Representative Bingham of Ohio, who had 
become converted to the Conservatives’ constitutional power 
argument, made a notable address to the House. While 
admitting that perhaps Congress was at that time without 
constitutional authority to enact so sweeping a bill, he said 
it was nevertheless true that the bill as it stood was as 
sweeping as was charged by the Conservatives.

Representative Bingham then made it preeminently clear 
that he entirely approved of the sweeping objectives of the

70 Id . at 1121.
71 Id . at 1117.
72 Ibid.



87

bill as it came from the Senate. His willingness to accept any 
modification of the bill was solely on the grounds of an 
overwhelming present constitutional objection which he 
himself was even then in the process of curing with a pro­
posal for a constitutional amendment. He said:

“ If civil rights has this extent, what, then, is pro­
posed by the provision of the first section? Simply 
to strike down by congressional enactment every 
State constitution which makes a discrimination on 
account of race or color in any of the civil rights 
of the citizen. I might say here, without the least 
fear of contradiction, that there is scarcely a State 
in this Union which does not, by its Constitution or by 
its statute laws, make some discrimination on account 
of race or color between citizens of the United States 
in respect of civil rights.” 73

Bingham then insisted that he believed that all discrimina­
tory legislation should be wiped out by amending the Con­
stitution.

‘ ‘ The law in every State should be just; it should 
be no respecter of persons. It is otherwise now, and 
it has been otherwise for many years in many of the 
States of the Union. I should remedy that not by an 
arbitrary assumption of power, but by amending the 
Constitution of the United States, expressly pro­
hibiting the States from any such abuse of power in 
the future.” 74

Bingham’s prestige as a leader of the Radical Repub­
lican majority obliged Wilson to accept the Ohioan’s inter­
pretation. Consequently, the bill was returned to the Judi­
ciary Committee and amended to eliminate the sweeping 
phrase “ there shall be no discrimination in civil rights 
and immunities.”  Wilson no doubt comforted himself with 
the fact that even as amended the language of the bill was

73 Id. at 1291.
74 Id. at 1294.



8 8

still revolutionary. At any rate, the Conservatives were still 
convinced that the bill invalidated state racial segregation 
laws. With considerable force, they argued that the phrase 
“ the inhabitants of every state”  . . . shall have the rights 
to full and equal benefits of all laws and proceedings for 
the “ security of persons and property . . . ”  was properly 
to be broadly interpreted. In fact, Senator Davis of Ken­
tucky had this to say:

“ . . . [T]his measure proscribes all discrimina­
tions against negroes in favor of white persons that 
may he made anywhere in the United States by any 
‘ ordinance, regulation, or custom,’ as well as by ‘ law 
or statute.’ . . .

But there are civil rights, immunities, and 
privileges ‘ which ordinances, regulations, and cus­
toms ’ confer upon white persons everywhere in 
the United States, and withhold from negroes. 
On ships and steamboats the most comfortable and 
handsomely furnished cabins and state-rooms, the 
first tables, and other privileges; in public hotels 
the most luxuriously appointed parlors, chambers, 
and saloons, the most sumptuous tables, and baths; in 
churches not only the most softly cushioned pews, but 
the most eligible sections of the edifices; on railroads, 
national, local, and street, not oidy seats, but whole 
cars, are assigned to white persons to the exclusion 
of negroes and mulattoes. All these discriminations 
in the entire society of the United States are estab­
lished by ordinances, regulations, and customs. This 
bill proposes to break down and sweep them all away 
and to consummate their destruction, and bring the 
two races upon the same great plane of perfect equal­
ity, declares all persons who enforce those distinc­
tions to be criminals against the United States, and 
subjects them to punishment by fine and imprison­
ment. . . . ”  75

Significantly, there was no attempt to reply to this interpre­
tation of the amended hill.

75 Id . at App. 183.



89

The bill in its amended form was adopted by Congress 
and vetoed by President Johnson.

Representative Lawrence, who spoke in favor of over­
riding President Johnson’s veto said:

“ This section does not limit the enjoyment of 
privileges to such as may be accorded only to citizens 
of ‘ some class,’ or ‘ some race,’ or ‘ of the least 
favored class, ’ or ‘ of the most favored class, ’ or of a 
particular complexion, for these distinctions were 
never contemplated or recognized as possible in fun­
damental civil rights, which are alike necessary and 
important to all citizens, and to make inequalities in 
which is rank injustice.” 76 77 78

He also said:
“ . . . distinctions created by nature of sex, age, 

insanity, etc., are recognized as modifying conditions 
and privileges, but mere race or color, as among citi­
zens never can [be].” 77

Numerous newspapers also thought the bill destroyed 
all segregation in schools, theatres, churches, public vehicles 
and the like.78 Flack said of the bill:

“ Many [Congressmen] believed that the negro 
would be entitled to sit on juries, to attend the 
same schools, etc., since, if the States undertook 
to legislate on those matters, it might be claimed 
that he was denied the equal rights and privileges 
accorded to white men. It does not appear that all 
of these contentions were specifically contradicted.

*  *  #

76 Id . at 1836.
77 Id . at 1835.
78 New York Herald, March 29 and April 10, 1866: Commercial 

March 30, 1866; National Intelligencer, April 16, 1866 and May 
16, 1866. There were a number of suits against local segre­
gation laws banning Negroes from theatres, omnibuses, etc., 
McPherson’s Scrap Book, The Civil Rights Bill. pp. 110 ff. None 
of these suits appear to have involved school segregation laws.



90

It would seem reasonable to suppose that if the bill 
should prove to be constitutional that these rights 
could not be legally denied them. ’ ’ 7U

#  # *

. many of the leading papers of the 
country, including some of the principal Republican 
papers, regarded the Civil Rights Bill as a limitation 
of the powers of the States, and as a step towards 
centralization, in that it interfered with the regula­
tion of local affairs which had hitherto been regu­
lated by state and local authorities or by custom. 
This opinion was held in the North as well as in the 
South. There also seems to have been a general 
impression among the press that negroes would, by 
the provisions of the bill, be admitted, on the same 
terms and conditions as the white people, to schools, 
theaters, hotels, churches, railway cars, steamboats, 
etc. ’ ’ 78 * 80

#  #  *

“ What the papers gave as their opinion must 
necessarily have been the opinion of large numbers 
of people. There is much evidence to substantiate 
this conclusion, for almost immediately after the 
passage of the bill over the President’s veto, efforts 
were made by the negroes to secure these rights. ’ ’ 81

The following generalizations are pertinent to the rela­
tionship of the Civil Rights Act (S. 61 as amended) to the 
problem of segregation in schools and the Fourteenth 
Amendment:

1. As originally drafted, the Act contained a 
phrase “ there shall be no discrimination in civil 
rights and immunities among the inhabitants of any 
state . . . ”  This was so broad in scope that most 
Senators and Representatives believed that it would 
have the effect of destroying entirely all state legis-

78 F lack , T he  A doption of the  Fourteenth A mendment
40 (1908).

80 Id . at 45.
81 Ibid.



91

tion which distinguished or classified in any manner 
on the basis of race. School segregation laws, sta­
tutes establishing unequal penalties in criminal codes, 
laws banning Negroes from juries, all alike would 
have become invalid as against the federal statute.

2. A great majority of the Republicans—the men 
who formulated the Fourteenth Amendment—had no 
objection to a bill which went this far. Men like 
Rogers, Kerr and Cowan objected to the bill on the 
ground that it would end all caste legislation, in­
cluding segregated schools, and this was the view of 
the Senate. None of the bill’s supporters in the 
House, except Wilson, denied that the bill had that 
effect.

3. The Bingham amendment was finally adopted 
in the House which struck out the “ no discrimina­
tion”  clause, simply because a majority of the mem­
bers of the House believed that so sweeping a 
measure could not be justified under the Constitution 
as it stood. They accepted Bingham’s argument that 
the proper remedy for removing racial distinctions 
and classifications in the states was a new amend­
ment to the Constitution.

4. The logic of the Bingham constitutional objec­
tions aside, the persuasiveness of his technical objec­
tion to the Trumbull bill was immeasurably enhanced 
by the fact that several days before his motion to 
amend the Civil Rights Bill, Bingham had in fact 
proposed to the House, on behalf of the Joint Com­
mittee, a constitutional amendment by the terms of 
which his constitutional objections to the Trumbull 
bill were obviated. That measure, H. R. 63, with 
some significant changes intended to underscore the 
prohibition on state governmental action with the



92

addition of the citizenship clause became the Four­
teenth Amendment.82

5. The law as finally enacted enumerated certain 
rights which Trumbull and other Radicals had felt 
were inseparably connected with the status of free­
dom. However, there is no evidence that even after 
the modification of the bill, the enumeration in the 
bill was considered to exclude rights not mentioned. 
Kerr, Rogers, Cowan, Grimes and other conserva­
tives still insisted that the bill, even in its final 
form, banned segregation laws. The phrase “ the in­
habitants of every race . . . shall have the right . . . 
to full and equal benefit of all laws and proceedings 
for the security of persons and property”  still stood 
in the bill and was susceptible of broad interpreta­
tion.

6. Finally, it may be observed that a majority 
of both Houses of Congress were ready to go beyond 
the provisions of the Civil Rights Act. Congress­
men as diverse in their views as John A. Bingham 
and Henry J. Raymond, a moderate Republican and 
editor of the New York Times, united in proposing 
a constitutional amendment which would remove 
doubts as to the ability of Congress to destroy all 
state legislation discriminating and segregating on 
the basis of race. The forthcoming amendment, at 
all odds, was to set at rest all doubts as to the power 
of Congress to abolish all state laws making any 
racial distinctions or classifications.

82 “ The Congress shall have power to make all laws which 
shall be necessary and proper to secure to the citizens of each state 
all privileges and immunities of citizens in the several states (Art. 4, 
Sec. 2) ; and to all persons in the several States equal protection in 
the rights of life, liberty and property (5th Amendment).” T h e  
J o u r n a l  o f  t h e  J o i n t  C o m m i t t e e  o f  F i f t e e n  o n  R e c o n s t r u c ­
t i o n , 61 (Kendrick ed. 1914).



93

T he  F ramers of th e  F ourteenth  A m endm ent

While Congress was engaged in the passage of the Civil 
Rights Act, a powerful congressional committee was even 
then wrestling with the problem of drafting a constitutional 
amendment which they hoped would definitely destroy all 
class and caste legislation in the United States. This 
committee was the now famous Joint Committee of Fifteen, 
which the two houses of Congress had established by Joint 
Resolution in December, 1865, to “ inquire into the condi­
tions of the states which formed the so-called Confederate 
States of America and report whether any or all of them 
were entitled to representation in Congress.”  It is ex­
tremely important for the purpose of this brief to observe 
that the Joint Committee of Fifteen was altogether under 
the domination of a group of Radical Republicans who were 
products of the great Abolitionist tradition, the equalitarian- 
ism which has been set forth earlier in this brief.

Section 1 of the Fourteenth Amendment, and particularly 
the equal protection clause, is pecularily the product of this 
group, plus Senators Sumner, Wilson and Trumbull.83

Co-chairmen of the Commitee were Representative Thad- 
deus Stevens of Pennsylvania and Senator William P. 
Fessenden of Maine.

Stevens was virtually dictator of the House. It was his 
dedicated belief that the Negro must be immediately ele­
vated to a position of unconditional, legal, economic, poli­
tical and social equality; and to this end he was determined 
to destroy every legal and political barrier that stood in * 141

83 K e l l y  a n d  H a r b i s o n , T h e  A m e r i c a n  C o n s t i t u t i o n , I t s  
O r ig in  a n d  D e v e l o p m e n t  460-463 (1948) ; B o u d i n , T r u t h  a n d  
F i c t io n  A b o u t  t h e  F o u r t e e n t h  A m e n d m e n t , 16 N. Y. U. L. Q. 
R e v . 19 (1938) ; F r a n k  a n d  M u n r o , T h e  O r i g i n a l  U n d e r s t a n d ­
in g  o f  “ E q u a l  P r o t e c t io n  o f  t h e  L a w s ” , 50 C o l . L .  R e v . 131,
141 (1950).



94

the way of his goal.84 Obviously, any constitutional amend­
ment atfecting the Negro would very heavily reflect his 
point of view.

Stevens believed that the law could not permit any dis­
tinctions between men because of their race. It was his 
understanding of the first section of the Fourteenth Amend­
ment that: “ . . . where any State makes a distinction in the 
same law between different classes of individuals, Congress 
shall have power to correct such discrimination and inequal­
ity . . . ”  85 He believed that it was up to Congress to repu­
diate ” . . .  the whole doctrine of the legal superiority of 
families or races,”  85a and that under the Amendment, ” . . .  
no distinction would be tolerated in this purified Republic 
but what arose from merit and conduct.” 86

Senator Fessenden undoubtedly held moderate views on 
the Reconstruction and, these views probably accounted 
for his selection as Co-chairman of the Joint Committee. 
Although Fessenden hoped that the Republican Party would 
work successfully with President Johnson, he broke with 
Johnson on the Civil Rights Act, which he supported with 
conviction. He was a staunch champion of the Fourteenth 
Amendment. Fessenden believed that all distinctions in 
civil rights based upon race must be swept away, and he

84 See for example, Stevens’ speech attacking the “ doctrine of the 
legal superiority of families or races” and denouncing the idea that 
“ this is a white man’s government.” Cong. Globe, 39th Cong., 1st 
Sess. 75 (1865). “ Sir,” he said on this occasion, “ this doctrine of a 
white man’s Government is as atrocious as the infamous sentiment that 
damned the late Chief Justice to everlasting fame; and, I fear, to ever­
lasting fire.”  See also similar observations on Stevens in B o w e r s , 
T h e  T r a g ic  E r a  (1929) and W o o d b u r n , T h e  L i f e  o f  T h a d d e u s  
S t e v e n s  (1913).

85 Cong. Globe, 39th Cong., 1st Sess. 1063 (1866).
85a Id . at 74.
86 Id . at 3148.



95

was in favor of excluding the southern states from any 
representation in Congress until this end was assured.87

His son reports that the essence of his views was “ all 
civil and political distinctions on account of race or color 
[would] be inoperative and void. . . . ”  88

Senator James W. Grimes, Republican of Iowa, was a 
Moderate and a close friend of Fessenden.88 While 
he was governor of Iowa, prior to his election to the Senate 
the state constitution was revised to provide schools free 
and open to all children.* 80 He insisted upon free schools 
open to all,81 and Lewellen, who analyzed Grimes’ poli­
tical ideas, concluded that-—

“ Special legislation, whether for individual or class, 
was opposed by Grimes as contrary ‘ to the true 
theory of a Republican government’ and as the 
‘ source of great corruption.’ Although he sympa­
thized with the newly freed Negroes after the Civil 
War, he opposed any attempt to make them wards 
of the Federal government. They had been made 
citizens and had been given the right to vote; there 
was no reason in the world why a law should be 
passed ‘ applicable to colored people’ and not to 
white people. While his ideas on the Negro ques­
tion were colored by his radical opinions on the 
slavery question his opposition to race legislation 
would probably have been practically as firm upon 
any other subject.” 82

Senator Ira Harris of New York, one of the least vocal 
members of the Committee of Fifteen, was a close friend

8‘ K endrick, o p . c i t .  su p ra  n. 82, at 172-177; 6 D ictionary of 
A merican B iography 349-350 (1931).

88 2 F essenden, L ife and P ublic Services of W illiam  P itt 
Fessenden 36 (1931).

88 K e n d r i c k , o p . c i t . su p ra  n. 82, at 190-191.
80 7 D ictionary of A merican B iography 632 (1931).
81 I b id . ;  S a l t e r , L i f e  o f  J a m e s  W . G r i m e s , c . 3 (1876).
82 L ew ellen , P olitical Ideas of James W . G rimes 42 Iowa 

Hist. & P ol. 339, 347 (1944).



96

of Charles Sumner,1'3 and “ acted with the radicals in all 
matters pertaining to reconstruction. ’ ’ 94 His explicit views 
on segregation are unascertained.95 He was, however, so 
closely allied to the insiders on the Committee who con­
sidered race and color an indefensible basis for making legal 
distinctions,98 that it is safe to conclude that he espoused, 
or at least acquiesced in, this viewpoint.

Senator George H. Williams, an Oregon Republican and 
former Douglas Democrat, claimed authorship of the First 
Reconstruction Act of 1867, originally called the Military 
Reconstruction Bill, which he introduced in the Senate on 
February 4, 1867.97 In commenting upon this bill he said:

“ 1 will say that in preparing this bill, I had no desire 
to oppress or injure the people of the South, but my 
sole purpose was to provide a system by which all 
classes would be protected in life, liberty, and prop­
erty . . . ”  98

His views on segregation are also unascertained.99 It should 
be noted, however, that there is no record of his ever lending 
his voice or his votes to any law providing segregation based 
upon race or color.

Senator Jacob H. Howard of Michigan was clearly in 
the vanguard of that group which worked to secure full

1,3 8  D i c t i o n a r y  o f  A m e r i c a n  B i o g r a p h y  310 (1932).
94 K e n d r i c k , op. cit. supra n. 82, at 195.
95 F r a n k  a n d  M u n r o , T h e  O r i g i n a l  U n d e r s t a n d i n g  of 

E q u a l  P r o t e c t io n  o f  t h e  L a w s , 50 C o l . L .  R e v . 131, 142 (1950).
96 Ibid.

97 K e n d r i c k , op. cit. supra n. 82, at 191; W ill ia m s , S ix  Years in 
the U nited  States Senate, Daily Oregonian, Dec. 3, 10, 1905.

98 C h r i s t e n s e n , T h e  G r a n d  O l d  M a n  o f  O r e g o n : T h e  L if e  
o f  G e o r g e  H. W i l l i a m s  26 (1939).

99 F r a n k  a n d  M unro, op. cit. supra n. 83, at 142.



97

equality for Negroes.100 He was clear and definite in his 
interpretation of the Civil Rights Act of 1866 and the 
Fourteenth Amendment. He said after the passage of the 
former that “ in respect of all civil rights, there is to be 
hereafter no distinction between the white race and the black 
race.” 101 In explaining the intention of the Joint Com­
mittee during discussion of the joint resolution to propose 
what was to become the Fourteenth Amendment, he said:

“ He desired to put this question of citizenship and 
the rights of citizens and freedmen under the civil 
rights bill beyond the legislative power of such 
gentlemen as [Senator Doolittle of Wisconsin] who 
would pull the whole system up by the roots and 
destroy it, and expose the freedmen again to the 
oppressions of their old masters. ’ ’ 102 *

In another speech, while acting for Senator Fessenden 
as floor leader for the Amendment, Howard interpreted 
Section 1 as follows:

“ The last two clauses of first section . . . disable a 
state from depriving . . . any person . . .  of life, 
liberty or property without due process of law, or 
from denying to him the equal protection of the 
laws of the state. This abolishes all class legislation 
and does away with the injustice of subjecting one 
caste of persons to a code not applicable to another 
. . . Ought not the time to be now passed when one 
measure of justice is to be meted out to a member 
of one caste while another and a different measure 
is meted out to the member of another caste, both 
castes being alike citizens of the United States

103

The evidence conclusively establishes that Howard’s 
interpretation of the equal protection clause precluded any

100 K endrick, o p .  c i t . su p ra  n. 82, at 192.
101 F rank  and M unro, o p . c i t . su p ra  n. 83, at 140.
102 Cong. Globe, 39th Cong., 1st Sess. 2896 (1866p
10s I d . at 2766.



98

use whatever of color as a basis for legal distinctions.
Senator Reverdy Johnson, Democrat of Maryland, was 

attorney for the defense in Dred Scott v. Sandford.104 105 * 
George I. Curtis, one of Scott’s attorneys, credited Johnson 
with being the major influence in shaping the decision.101 
Where segregation was concerned, Johnson was not entirely 
consistent or predictable.

In 1864 he supported the motion of Senator Charles 
Sumner that the Washington Railroad end the exclusion of 
persons of color.107 During the debate upon Sumner’s mo­
tion, Johnson said:

**It may be convenient, because it meets with the 
public wish or with the public taste of both classes, 
the white and the black, that there should be cars in 
which the white men and ladies are to travel, desig­
nated for that purpose, and cars in which the black 
men and black women are to travel, designated for 
that purpose. But that is a matter to be decided as 
between these two classes. There is no more right 
to exclude a black man from a car designated for 
the transportation of white persons than there is a 
right to refuse to transport in a car designated for 
black persons white men; and I do not suppose that 
anybody will contend . . . that there exists any power 
in the company to exclude white men from a car 
because the company have appropriated that car 
for the general transportation of black passengers.108

Two years later, Johnson said:
“ . . . as slavery has been abolished in the several 

States, those who were before slaves are now citizens 
of the United States, standing . . .  upon the same condi-

104 F r a n k  a n d  M u n r o , o p . cit . supra  n. 83. at 142.
n>5 19 How. 393.
10ti 10 D i c t i o n a r y  o f  A m e r i c a n  B i o g r a p h y  113 (1933).
107 W i l s o n , H i s t o r y  o f  t h e  R i s e  a n d  F a l l  o f  t h e  S l a v e  

P o w e r  i n  A m e r i c a  507 (1877).
108 Cong. Globe, 38th Cong., 1st Sess. 1156 (1864).



99

tion, therefore, with the white citizens. If there is 
an authority in the Constitution to provide for the 
black citizen, it cannot be because he is black; it must 
be because he is a citizen; and that reason [is] 
equally applicable to the white man as to the black 
man. . . . ”  109

Thus it appears that he understood that the granting of 
citizenship rights to Negroes meant that racial distinctions 
could no longer be imposed by law.

Representative John A. Bingham of Ohio, a member of 
the committee who has been described as the ‘ ‘ Madison of 
the first section of the Fourteenth Amendment”  110 and un­
doubtedly its author, was a strong and fervent Abolitionist, 
classified with those whose views of equal protection “ pre­
cluded any use whatsoever of color as a basis of legal dis­
tinctions.”  111

While the Fourteenth Amendment was pending, Repre­
sentative Bingham took the view that state constitutions 
which barred segregated schools were “ in accordance with 
the spirit and letter of the Constitution of the United States 
. . .  [if] the utterance of Jefferson ever meant anything . . . 
it meant precisely that when he declared for equal and 
exact justice. . . , ” 112

Representative George Boutwell of Massachusetts, was a 
hard, practical politician rather than an idealist. He was how-

109 Cong. Globe, 39th Cong., 1st Sess. 372-374 (1865-1866).
110 Dissent of Mr. Justice Black in Adamson v. California, 332 

U. S. 46, 74.
111 F r a n k  a n d  M u n r o , T h e  O r i g i n a l  U n d e r s t a n d i n g  o f  

E q u a l  P r o t e c t i o n  o f  t h e  L a w s , 50 C o l . L. R e v . at 151. See 
G r a h a m , T h e  “ C o n s p i r a c y  T h e o r y ”  o f  t h e  F o u r t e e n t h  A m e n d ­
m e n t , 47 Y a l e  L. J .  371, 400-401 (1938); G r a h a m , T h e  
E a r l y  A n t i s l a v e r y  B a c k g r o u n d s  o f  t h e  F o u r t e e n t h  A m e n d ­
m e n t , 1950 Wis. L. R e v . 479 at 492; Cong. Globe. 39th Cong., 
1st Sess. 1291, 1293, 2461-2462 (1866). For other sketches of 
Bingham see 2 D i c t i o n a r y  o f  A m e r i c a n  B i o g r a p h y  278 (1929) 
and K e n d r i c k , o p .  c i t . su p ra  n. 82 at 183.

112 Cong. Globe, 40th Cong., 1st Sess. 2462 (1868).



1 0 0

ever, no less extreme in liis demands for Negro civil rights 
and Negro suffrage than men like Stevens and Sumner. In­
dicative of his views is his vote on May 22, 1874 against the 
Sargent amendment to the Civil Rights Act of 1875, which 
would have permitted separate but equal schools.113 During 
Reconstruction Alabama was “ flooded with the radical 
speeches of Morton and Boutwell in favor of mixed 
schools.”  114 He was among those whose interpretation of 
“ equal protection”  would not admit color as a basis for 
legal distinctions.115

Representative Roscoe Conkling, a New York Repub­
lican, was thought to have taken his views on Reconstruction 
from Stevens.116 He was called by some a protege of 
Stevens; at any rate, they worked as partners on much 
reconstruction legislation.117 In 1868, when the readmis­
sion of Arkansas was being discussed, he voted against the 
Henderson Amendment to the bill which would have per­
mitted the state to establish segregated schools.118 In 1872 
he favored the supplementary civil rights bill and voted 
against the Thurman amendment which would have struck 
out a clause permitting colored persons to enter “ any place 
of public amusement or entertainment.”  119 He was in the 
Senate majority which on May 22, 1874, voted down the 
Sargent amendment to the Civil Rights Bill, an amendment 
which would have permitted separate but equal schools.120 
Conkling must be classified as one of those who agreed 
to no legal classifications or distinctions based upon color.121

113 2 Cong. Rec. 4167 (1874).
114 B o w e r s , T h e  T r a g ic  E r a  427 (1929).
115 F r a n k  a n d  M u n r o , op. c i t . supra n. 83, at 142.
116 K e n d r i c k , op. c i t .  supra n . 82, at 186.
117 C h i d s e y , T h e  G e n t l e m a n  f r o m  N e w  Y o r k  34-35 (1935).
118 Cong. Globe, 40th Cong., 2nd Sess. 2748 (1868).
119 C o n k l i n g , L i f e  a n d  L e t t e r s  o f  R o s c o e  C o n k l i n g  432 

(1869).
120 2 Cong. Rec. 4167 (1874).
121 F rank  and M u n r o , op. c it .  supra n. 83, at 142.



101

Representative Henry T. Blow, a Missouri Republican, 
first supported the views of Tliaddeus Stevens in the Joint 
Committee and then in the second session gave his support 
to Bingham.122 In either case, he acted with those who 
favored a broad and sweeping denial of the right of the 
states to make legal classifications on the basis of race or 
color. Blow came to Congress with a strong antislavery 
background and took the position that color discrimination 
could not be defended, as a matter of course.123

Representative Justin S. Morrill of Vermont is char­
acterized as “ an extreme radical” , one “ regularly on the 
side of radicalism” . It is said of him that “ the only part 
taken by him in Reconstruction was to attend the meetings 
of the Committee and cast his vote.”  124 However, he was 
among those voting against the “ white”  clause in the 
Nebraska constitution when the bill to admit that state to 
the union was under consideration.125 * He voted against 
the Henderson amendment to permit segregated schools 
in the bill to readmit Arkansas.128 He voted against the 
Sargent Amendment to allow separate but equal schools, 
during the debates on the bill that became the Civil Rights 
Act of 1875.127 Morrill thus belongs in the group of those 
who did not consider color a reasonable ground for legal 
distinctions.128

Representative Eliliu Washburne of Illinois was a 
staunch member of the House Radical bloc, and a pro­
nounced enemy of the more moderate Reconstruction poli­
cies of President Johnson. He supported both the Civil

122 K e n d r i c k , op. cit. supra n. 82, at 194.
123 F r a n k  a n d  M u n r o , op. cit. supra n. 83, at 142.
124 K endrick , op. cit. supra n. 82, at 140, 193.
125 Cong. Globe, 39th Cong., 1st Sess. 4275-4276 (1866).
12li Cong. Globe, 40th Cong., 2nd Sess. 2748 (1868).
127 2 Cong. Rec. 4167 (1874).
128 F r a n k  a n d  M u n r o , op. cit. supra n. 83, at 142.



102

Eights Act and the Fourteenth Amendment and his remarks 
make it clear that he favored a revolution in the southern 
social order.129 130

The two Democratic members of the Joint Committee 
from the House were both enemies of the Civil Bights Act 
and the Fourteenth Amendment. Representative Henry 
Grider of Kentucky was without influence in the drafting of 
the Fourteenth Amendment by the Joint Committee.180 
However, remarks of Representative Andrew Jackson 
Rogers of New Jersey, in opposition to these measures, 
are significant indication of contemporary understanding of 
their reach and thrust. Thus, in speaking of the Civil Rights 
Bill, Rogers said:

“ In the State of Pennsylvania there is a discrimina­
tion made between the schools for white children and 
the schools for black. The laws there provide that cer­
tain schools shall be set apart for black persons, and 
certain schools shall be set apart for white persons. 
Now, if this Congress has a right, by such a bill as 
this, to enter the sovereign domain of a State and 
interfere with these statutes . . . , then . . .  it has a 
right to . . .  , inflict upon the people . . . the right of 
the negro to [vote]. . . .” 131

Similarly, in speaking of the proposed Section 1 of the 
Fourteenth Amendment on February 26, 1866, he said:

“ . . . Under this amendment, Congress would have 
power to compel the State to provide for white chil­
dren and black children to attend the same school, 
upon the principle that all the people . . . shall have

129 19 D i c t i o n a r y  o f  A m e r i c a n  B i o g r a p h y  504 (1936); see 
also K e n d r i c k , op. cit. supra n. 82, at 194.

130 K e n d r i c k , op. cit. supra n. 82, at 196. Grider is not even 
listed in the D i c t i o n a r y  o f  A m e r i c a n  B i o g r a p h y . He died before 
the second session o f  the 39th Congress. K endrick , op. cit. supra 
n. 82, at 197.

131 Cong. Globe., 39th Cong., 1st Sess. 1121 (1866).



103

equal protection in all the rights of life, liberty, and 
property, and all the privileges and immunities of 
citizens. . . 132

Again, in denouncing the Amendment, he declared:
“ This section of the joint resolution is no more nor 
less than an attempt to embody in the Constitution 
of the United States that outrageous and miserable 
civil rights bill. . . . ”
“ . . . I hold [the amendment] will prevent any State 
from refusing to allow anything to anybody.” 133

E. The Fourteenth Amendment Was Intended to 
Write into the Organic Law of the United 
States the Principle of Absolute and Complete 
Equality in Broad Constitutional Language.

While the Civil Bights Act of 1866 was moving through 
the two Houses of Congress, the Joint Committee of Fifteen 
was engaged in the task of drafting a constitutional amend­
ment as a part of a program for the “ readmission”  of the 
southern states to the Union. When the Committee began 
its meetings in January 1866, several of its members 
introduced proposals for constitutional amendments guar­
anteeing civil rights to the freedmen. After a series of 
drafting experiments, Bepresentative Bingham on February 
3 proposed the following:

“ The Congress shall have power to make all laws 
which shall be necessary and proper to secure to 
the citizens of each State all privileges and im­
munities of citizens in the several States (Art. 
4, Sec. 2 ); and to all persons in the several 
States equal protection in the rights of life, liberty 
and property (5th Amendment).”  134

132 Id. at App. 134 (1866).
133 Id . at 2538.
134 This proposal with some changes was destined to become 

eventually the second portion of Section 1 of the Fourteenth Amend­
ment. K e n d r i c k , op. cit. supra n. 82, at 61.



104

The Joint Committee found this proposal satisfactory 
and accordingly on February 13th introduced it in the 
House as H. R. 63.135

By now the dedicated purpose of the Radical Republicans 
based in part upon the ante-war equalitarian principles as 
opposed to caste and class legislation had to be crystallized 
in a Fourteenth Amendment. Necessarily, the drafters of 
this amendment and those who participated in the debates 
on the amendment recognized that constitutional amend­
ments are properly worded in the broadest and most compre­
hensive language possible.

It must be borne in mind that Representative Bingham, 
and those who supported his position on the amendment to 
the Civil Rights Bill of 1866, had already demonstrated 
that the constitutional amendment under consideration 
would be at least as comprehensive in its scope and effect 
as the original sweeping language of the Trumbull Civil 
Rights Bill before it was amended in the House, and that 
it would be far broader than the scope of the bill as finally 
enacted into law. On this point, Bingham repeatedly made 
his intentions clear, both in his discussion on the power 
limitations on the Civil Rights Bill itself and in his defense 
of his early drafts of the proposed constitutional amend­
ment.

Representative Rogers immediately attacked the pro­
posed constitutional amendment (H. R. 63) as “ more 
dangerous to the liberties of the people and the founda­
tions of the government”  than any proposal for amending 
the Constitution heretofore advanced. This amendment, 
he said, would destroy all state legislation distinguishing 
Negroes on the basis of race. Laws against racial inter­
marriage, laws applying special punishments to Negroes 
for certain crimes, and laws imposing segregation, including 
school segregation laws, alike would become unconstitu­
tional. He said:

135 Cong. Globe, 39th Cong., 1st Sess. 813 (1865-1866).



105

“ Who gave the Senate the constitutional power 
to pass that bill guarantying equal rights to all, if 
it is necessary to amend the organic law in the manner 
proposed by this joint resolution! . . .  It provides 
that all persons in the several States shall have equal 
protection in the right of life, liberty, and property. 
Now, it is claimed by gentlemen upon the other side 
of the House that Negroes are citizens of the United 
States. Suppose that in the State of New Jersey 
Negroes are citizens, as they are claimed to be by 
the other side of the House, and they change their 
residence to the State of South Carolina, if this 
amendment be passed Congress can pass under it a 
law compelling South Carolina to grant to Negroes 
every right accorded to white people there; and as 
white men there have the right to marry white 
women, Negroes, under this amendment, would be 
entitled to the same right; and thus miscegenation and 
mixture of the races could be authorized in any State, 
as all citizens under this amendment are entitled to 
the same privileges and immunities, and the same pro­
tection in life, liberty, and property.

#  *  *

“ In the State of Pennsylvania there are laws 
which make a distinction with regard to the school­
ing of white children and the schooling- of black 
children. It is provided that certain schools shall 
be designated and set apart for white children, and 
certain other schools designated and set apart for 
black children. Under this amendment, Congress 
would have power to compel the State to provide for 
white children and black children to attend the same 
school, upon the principle that all the people . . . 
shall have equal protection in all the rights of life, 
liberty, and property, and all the privileges and im­
munities of citizens in the several States.’ ’ 136

Representative Bingham, who was contemporaneously 
amending the original Trumbull Civil Rights Bill because 
its broad anti-discrimination provisions lacked constitu-

136 Cong. Globe, 39th Cong., 1st Sess., App. 134 (1865-1866).



106

tional foundation, naturally did not dispute Representative 
Rogers’ appraisal of the wide scope of H. R. 63. On the 
contrary, Representative Bingham two days later indi­
cated his concurrence in that appraisal in the course of a 
colloquy with Representative Hale.

Representative Hale inquired of Representative Bing­
ham whether his proposed constitutional amendment did 
not “ confer upon Congress a general power of legislation 
for the purpose of securing to all persons in the several 
states protection of life, liberty and property, subject only 
to the qualification that the protection shall be equal.”  
And Representative Bingham replied, “ I believe it 
does . . . ”

In order to nail down the precise source of the proposed 
grant of power, Representative Hale then asked Repre­
sentative Bingham to “ point me to that clause or part . . . 
which contains the doctrine he here announces?”  To which 
the answer was, “ The words ‘ equal protection’, contain it, 
and nothing else.”  137

The House at the end of February was preoccupied with 
debating Reconstruction generally as well as the Civil 
Rights Bill, and it showed itself in no hurry to take up Bing­
ham’s proposal, especially since it was obvious that a more 
comprehensive measure would soon be forthcoming from 
the Joint Committee. Following the debate on February 
28, the House postponed further consideration of the pro­
posed amendment until mid-April.138 In fact, “ H. R. 63”  
was not to be heard from in that form again. Yet its protec­
tive scope presently passed into the more extensive pro­
posal which the Joint Committee brought forward at the 
end of April and which became, after some changes, the 
amendment which Congress finally submitted to the states.

During most of March and April, the Joint Committee 
paid little attention to the question of civil rights.

137 Id . at 1094.
138 Id . at 1095



107

It was concerned, for a time, with the question of the admis­
sion of Tennessee; then, for a time, it appears to have been 
inactive. Not until late April did it resume sessions look­
ing forward to the drafting of a comprehensive constitu­
tional amendment on Reconstruction. On April 21, Stevens 
offered to the committee a draft of a proposed constitu­
tional amendment, covering civil rights, representation, 
Negro suffrage and the repudiation of the “ rebel”  debt.

This proposal became the frame upon which the Four­
teenth Amendment was constructed. Most significant from 
our point of view was section 1:

“ No discrimination shall be made by any state, 
nor by the United States, as to the civil rights of per­
sons because of race, color, or previous condition of 
servitude. ”  1311

Section 2 provided that on and after July 4, 1876, no dis­
crimination should be made between persons in the rights 
of suffrage on account of race, color, or previous condition 
of servitude. Section 3 provided that until that time, no 
class of persons against whom a state imposed suffrage dis­
crimination because of race, color or previous condition of 
servitude should be included in the state’s basis of repre­
sentation. Section 4 invalidated the “ rebel”  debt. Section 
5, which passed substantially intact into the Fourteenth 
Amendment, provided that Congress was to have the power 
to enforce the provisions of the amendment by appropriate 
legislation.139 140

Section 1 was to pass through several critical changes in 
the next few days. Almost at once, Senator Bingham moved 
to have the following provision added to section 1:

“ . . . nor shall any state deny to any person within 
its jurisdiction the equal protection of the laws, nor 
take private property for public use without just 
compensation.”  141

139 K endrick , o p . c i t . su p ra  n. 82, at 83.
140 Ibid.

141 Id . at 85.



108

It will be noticed that Bingham’s suggestion had within it 
the substance of the equal protection clause of the Four­
teenth Amendment. After some discussion, the committee 
voted this suggestion down, seven to five.

Other changes followed. After some further discussion, 
Bingham moved that the following be added as a new sec­
tion of the amendment:

“ No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any state deprive any 
person of life, liberty or property without due process 
of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”  142

This was substantially Bingham’s earlier amendment, sub­
mitted to Congress in February as H. R. 63 with the addi­
tion of the equal protection clause. One significant differ­
ence lay in the fact that Bingham’s new section did not con­
fer power upon Congress to legislate; instead, it made 
privileges and immunities, due process and equal pro­
tection constitutional guarantees against state interference.

F. The Republican Majority in the 39th Congress 
Was Determined to Prevent Future Con­
gresses from Diminishing Federal Protection 
of These Rights.

There were two rather obvious reasons for Senator Bing­
ham ’s last two amendments. First, a number of committee 
members had earlier expressed some concern over the 
phraseology of H. R. 63 because it allowed Congress to 
refuse to enforce the guarantees if it saw fit. The Radical 
Republicans were openly fearful lest later and more con­
servative Congresses destroy their work.143 But direct

142 Id . at 87.
143 See speeches of Representatives Garfield, Broomall, Eldridge, 

and Stevens and Senator Howard, Cong. Globe, 39th Cong., 1st Sess. 
2459, 2462, 2498, 2506, 2896 (1865-1866).



109

constitutional guarantees would be beyond tbe power of 
Congress to impair or destroy. Second, Bingham was 
acting with the knowledge that section 5 of the proposed 
amendment already granted Congress full power to legis­
late to enforce the guarantees of the amendment. In other 
words, the Radical Republicans had no thought of stripping 
Congress of the power to enforce the amendment by ade­
quate legislation. They put the guarantees themselves 
beyond the reach of a hostile Congress.144

The Committee at once adopted Representative Bing­
ham’s suggested addition by a vote of ten to two.145 Four 
days later, however, on April 25, the Committee on Williams ’ 
motion, struck out Bingham’s latest suggested revision, only 
Stevens, Bingham, Morrill, Rogers and Blow voting to 
retain it.146 On April 28, in the final stages of committee 
discussion, Bingham moved to strike out section 1, reading 
“ no discrimination shall be made . . . ”  and insert his 
proposal of April 21 in its place. Although the Committee 
had voted only three days earlier to kill Bingham’s pro­
posal entirely, it now passed his new motion.147 Thus, 
Bingham’s proposal ultimately became section 1 of the 
amendment which the Committee now submitted to Cong­
ress. As such, and with the addition of the citizenship 
clause adopted from the Civil Rights Act of 1866, it was 
to pass into the Fourteenth Amendment as finally accepted 
by Congress.

On April 30, Representative Stevens introduced the text 
of the Committee’s proposed amendment in the House of 
Representatives. As presented, the amendment differed in 
two particulars from the Fourteenth Amendment as finally 
adopted: the first section as yet did not contain the citizen-

144 See for example Stevens’s explanations on the reasons for re­
enforcing the Civil Rights Act by constitutional guarantees. Id . at 
2459.

140 K e n d r i c k , op. cit. supra n. 82, a t 87.
146 Id . at 98.
147 Id . at 106.



110

ship clause; and the third section carried a clause for the 
complete disfranchisement of Confederate supporters until 
1870. An accompanying resolution proposed to make suc­
cessful ratification of the amendment, together with ratifica­
tion by the several southern states, a condition precedent 
to the readmission of the southern states to representation 
in Congress.148

On May 8, Stevens opened debate in the House on the 
proposed amendment. In a sharp speech he emphasized 
the legislative power of Congress under the proposed amend­
ment :

“ I can hardly believe that any person can be 
found who will not admit that every one of these 
provisions [in the first section] is just. They are 
all asserted, in some form or other, in our declara­
tio n  or organic law. But the Constitution limits 
only the action of Congress, and is not a limitation 
on the States. This amendment supplies that defect, 
and allows Congress to correct the unjust legislation 
of the States, so far that the law which operates upon 
one man shall operate equally upon all. Whatever 
law punishes a white man for a crime, shall punish 
the black man precisely in the same way and to the 
same degree. Whatever law protects the white man 
shall afford ‘ equal’ protection to the black man.” 14

The amendment, he added, was made necessary by the 
“ oppressive codes”  which had become law in the southern 
states. “ Unless the Constitution should restrain them, 
those States will all, I fear, keep up this discrimination and 
crush to death the hated freedmen. ’ ’ 150

Finally, he stated that the purpose of section 1 was to 
place the Civil Rights Act beyond the reach of a hostile 
Congress:

148 Cong. Globe, 39th Cong., 1st Sess. 2459 (1866).
149 Ibid, (italics in original).
150 Ibid.



I l l

“ Some answer, ‘Your civil rights bill secures 
the same things.’ That is partly true, hut a law is 
repealable by a majority. And I need hardly say 
that the first time that the South with their copper­
head allies obtain the command of Congress it will 
be repealed . . .  This amendment once adopted cannot 
be annulled without two-thirds of Congress. That 
they will hardly get.”  151

There was general agreement among subsequent 
speakers that one of the purpose of section 1 of the amend­
ment was to reinforce the Civil Rights Act. Enemies of the 
proposed amendment charged that Radical Republicans, 
having forced through what was an unconstitutional statute, 
were now attempting to clear up the constitutional issue 
by writing the statute into the supreme law.152

The Radical Republicans refused to admit that they 
were attempting to cover up the passage of an unconstitu­
tional statute. Instead, they insisted that one of the pur­
poses of the present proposed amendment was to place 
the guarantees of the Civil Rights Act beyond attack by 
future Congresses unfriendly to the rights of the freedman 
“ The Civil Rights Bill is now part of the law of this land,”  
said Representative James A. Garfield of Ohio in defending 
the amendment. “ But every gentleman knows it will cease to

151 Ibid.

152 Representative William Finck of Ohio asserted, for example, 
that “all I have to say about this section is, that if it is necessary to 
adopt it . . . then the civil rights bill, which the President vetoed, was 
passed without authority and was clearly unconstitutional.” Id . at 
2461. Representative Benjamin Boyer of Pennsylvania, another 
enemy of the amendment, after observing that “ the first section em­
bodies the principles of the civil rights bill,”  twitted the Republicans 
for seeking to rectify their own constitutional error and attacked the 
present amendment as “ objectionable, also, in its phraseology, being 
open to ambiguity and admitting the conflicting constructions.”  Id. at 
2467. Representative Charles Eldridge of Wisconsin asked ironi­
cally, “ What necessity is there, then, for this amendment if that bill 
was constitutional at the time of its passage?” Id . at 2506.



112

be a part of the law whenever the sad moment arrives when 
that gentleman’s party comes into power . . .  For this 
reason, and not because I believe the civil rights bill to 
be unconstitutional, I am glad to see that first section 
here.” 153 Representative John Broomall of Ohio, making 
the same point, said, “ If we are already safe with the civil 
rights bill, it will do no harm to become the more effectually 
so, and to prevent a mere majority from repealing the law 
and thus thwarting the will of the loyal people.”  Broomall 
pointed out, also, that no less a friend of the Negro than Rep­
resentative John A. Bingham, had entertained grave doubts 
as to the constitutionality of the measure, and thought a con­
stitutional amendment necessary. He disagreed, Broomall 
said, with Bingham’s doubts, but he was not so sure of 
himself that he felt justified “ in refusing to place the power 
to enact the law unmistakably in the Constitution. ’ ’ 154

Probably other moderate Republicans agreed with 
Representative Henry J. Raymond of New York who had 
voted against the Civil Rights bill because he “ regarded 
it as very doubtful, to say the least, whether Congress, 
under the existing Constitution had any power to enact
such a law___”  But he nonetheless had heartily favored the
principles and objectives of the bill, and because he still 
favored “ securing an equality of rights to all citizens”  he 
would vote “ very cheerfully”  for the present amendment.155

There was little discussion during the debate in the 
House of the scope of the civil rights which would be pro­
tected by the proposed amendment, apparently because 
both sides realized that debate on the original Civil Rights 
Bill had exhausted the issue. The indefatigable Rogers, 
fighting to the last against any attempt to guarantee rights 
for the Negro, repeatedly reminded Congress that the 
amendment would sweep the entire range of civil rights

153 Id . at 2462.
154 Id . at 2498.
155 Id . at 2502.



113

under the protection of the Federal Government and so 
work a revolution in the constitutional system.156

Although it was not necessary to answer Rogers, Bing­
ham reminded Congress:

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

Allow me, Mr. Speaker, in passing, to say that 
this amendment takes from no State any right 
that ever pertained to it. No State ever had the 
right, under the forms of law or otherwise, to 
deny to any freeman the equal protection of the laws 
or to abridge the privileges or immunities of any 
citizen of the Republic, although many of them have 
assumed and exercised the power, and that without 
remedy. ’ ’ 157

156 Id. at 2537.
157 Id . at 2542.



114

G. Congress Understood That While the Four­
teenth Amendment Would Give Authority to 
Congress to Enforce Its Provisions, the 
Amendment in and of Itself Would Invalidate 
All Class Legislation by the States.

On May 10, the House passed the amendment without 
modification by a vote of 128 to 37. The measure then went 
to the Senate.15*

On the same day, Senator Howard opened the debate 
in the Senate. Speaking for the Joint Committee because 
of Senator Fessenden’s illness, Howard gave a broad inter­
pretation of the first section of the proposed amendment. He 
emphasized the scope of legislative power which Con­
gress would possess in the enforcement of the Amendment.

“ How will it be done under the present amend­
ment f As I have remarked, they are not [at present] 
powers granted to Congress, and therefore it is 
necessary, if they are to be effectuated and enforced, 
as they assuredly ought to be, that additional power 
be given to Congress to that end. This is done by the 
fifth section of this amendment which declares that 
‘ the Congress shall have power to enforce by appro­
priate legislation the provisions of this article.’ 
Here is a direct affirmative delegation of power to 
Congress to carry out all the principles of all these 
guarantees, a power not found in the Constitu­
tion.”  158 159

Senator Howard’s interpretation of the legislative 
power of Congress under the proposed amendment makes 
it obvious that the Joint Committee, in separating the guar­
antees of civil rights from the congressional power to legis­
late thereon, had not at all intended to weaken the legislative 
capacity of Congress to enforce the rights conferred by the 
amendment. The guarantees, however, no longer depended 
upon congressional fiat alone for their effectiveness as they

158 Id . at 2545.
159 Id . at 2766.



115

had in Bingham’s proposed civil rights amendment of Janu­
ary (H. R. 63). But in Howard’s view and that of the 
Committee, this meant merely that future CongTesses could 
not destroy the rights conferred.

Senator Howard then passed to an equally expansive 
interpretation of the due process and equal protection 
clauses of the amendment:

“ The last two clauses of the first section of the 
amendment disabled a State from depriving not 
merely a citizen of the United States, but any person, 
whoever he may be, of life, liberty, or property 
without due process of law or from denying to him 
the equal protection of the laws of the State. This 
abolishes all class legislation in the States and does 
away with the injustice of subjecting one caste of 
persons to a code not applicable to another. It pro­
hibits the hanging of a black man for a crime for 
which the white man is not to be hanged. It pro­
tects the black man in his fundamental rights as a 
citizen with the same shield which it throws over 
the white man.” 100 (Italics added.)

The only class of rights, Howard added, which were not 
conferred by the first section of the amendment was “ the 
right of suffrage.”  Howard concluded this analysis by 
asserting that the entire first section, taken in conjunction 
with the legislative power of Congress conferred in section 
five, was of epoch-making importance:

“ I look upon the first section, taken in con­
nection with the fifth, as very important. It will, if 
adopted by the States, forever disable everyone of 
them from passing laws trenching upon those funda­
mental rights and privileges which pertain to citizens 
of the United States, and to all persons who may hap­
pen to be within their jurisdiction. It establishes 
equality before the law, and it gives to the humblest, 
the poorest, the most despised of the race the same 
rights and the same protection before the law as it

100 I d .  at 2766.



116

gives to the most powerful, the most wealthy, or the 
most haughty. That, sir, is republican govern­
ment, as I understand it, and the only one which can 
claim the praise of a just Government.”  101

Thus, Senator Howard understood that due process and 
equal protection would sweep away entirely “ all class 
legislation”  in the states. By implication, he subscribed to 
a “ substantive interpretation”  of due process of law, thus 
making due process a limitation upon state governments to 
subvert civil liberties.

No Senator thereafter challenged these sweeping claims 
for the efficacy of the civil rights portion of Section 1. 
Howard’s allies subscribed enthusiastically to his interpre­
tation. Senator Luke Poland of Vermont, a staunch Radi­
cal Republican, regarded the amendment as necessary to 
set to rest all questions of congressional competence in 
enacting the civil rights bill:

“ Congress has already shown its desire and in­
tention to uproot and destroy all such partial State 
legislation in the passage of what is called the civil 
rights bill. The power of Congress to do this has 
been doubted and denied by persons entitled to high 
consideration. It certainly seems desirable that no 
doubt should be left existing as to the power of Con­
gress to enforce principles lying at the very founda­
tion of all republican government if they be denied 
or violated by the States. . . . ”  162

Certainly the Conservatives in the Senate agreed alto­
gether with Senator Howard and the other Senate Republi­
cans about the sweeping impact which the prospective 
amendment would have upon state caste legislation. Senator 
Thomas Hendricks of Indiana, in condemning the legisla­
tive power to enforce the amendment which Congress would 161

161 Id . at 2766. 
102 Id . at 2961.



117

acquire from the operation of section 5, said that these 
words had

“  . . . such force and scope of meaning as that Con­
gress might invade the jurisdiction of the States, 
rob them of their reserved rights, aqd crown the 
Federal Government with absolute and despotic 
power. As construed this provision is most danger­
ous.”  168

The prospective amendment moved forward rapidly in 
the Senate, with comparatively little debate. The Radical 
Republicans were confident of their objectives. The con­
servative Republicans and Democrats despaired of arrest­
ing the tide of events. One significant change occurred on 
May 30 when Howard brought forward the citizenship 
clause of the Civil Rights Act and successfully moved it as 
an amendment to section 1. Few Republicans doubted that 
Congress already had the power to legislate upon the ques­
tion of citizenship. However, the new provision cleared up 
a serious hiatus in the original Constitution by settling in 
unequivocal fashion the definition of national and state 
citizenship. Needless to say, the new provision, like its 
predecessor in the Civil Rights Act, specifically endowed 
Negroes with citizenship and reversed the dictum of the 
Dred Scott case that no Negro could be a citizen of the 
United States.

The Radical Republicans were well aware that by endow­
ing the Negro with citizenship, they strengthened his claim 
to the entire scope of civil rights. Bingham had mentioned 
as much in debate in the House, while Representative Ray­
mond of New York had added that once the Negro became 
a citizen, it would not be possible in a republican govern­
ment to deny him any right or to impose upon him any re­
striction, even including that of suffrage. The force of this 
stratagem did not escape the Conservatives in the Senate.

163 I d .  at 2940.



118

Senator Garrett Davis of Kentucky had this to say of the 
citizenship provision of the amendment:

“ The real and only object of the first provision of 
this section, which the Senate has added to it, is 
to make Negroes citizens, to prop the civil rights 
bill, and give them a more plausible, if not a valid, 
claim to its provisions, and to press them forward 
to a full community of civil and political rights with 
the white race, for which its authors are struggling 
and mean to continue to struggle. ’ ’ 164

The Senate passed the amendment in June, 33 to 11. Cong­
ress formally proposed the amendment on June 13 and it 
was submitted to the states.

Congress I ntended to D estroy A ll  Class D istinctions

I n  L a w

What, then, may one conclude concerning the intent 
of Congress with regard to segregation in the framing of 
the amendment?

Both Senator Howard and Representative Stevens made 
it definitely clear that the scope of the rights guaranteed 
by the amendment was much greater than that embraced 
in the Civil Rights Act.

It is evident that the members of the Joint Committee 
intended to place all civil rights within the protection of 
the Federal Government and to deny the states any power 
to interfere with those rights on the basis of color. The 
scope of the concept of liberties entertained by the Com­
mittee was very broad. The breadth of this concept was 
recognized by this Court in all of its decisions up to 
Plessy v. Ferguson.

In adopting the Civil Rights Act of 1866, Congress had 
enumerated the rights protected. This was done because 
Bingham and others doubted that Congress had the power 
to take all civil liberties under federal protection. Un-

164 I d .  at App. 240.



119

restricted by this consideration in drafting a constitutional 
provision, Congress used broad comprehensive language 
to detine the standards necessary to guarantee complete 
federal protection. This was promptly recognized by this 
Court in one of the earliest decisions construing the Amend­
ment when it was held: “ The 14th Amendment makes no 
effort to enumerate the rights it designs to protect. It 
speaks in general terms, and those are as comprehensive 
as possible.”  Strunder v. West Virginia, 100 U. S. 303, 
310.

Did Congress specifically intend to ban state laws impos­
ing segregation by race! And more specifically, did it 
intend to prohibit segregation in school systems, even where 
a state provided a separate but equal system for Negroes? 
To begin with it must be recognized that the ‘ ‘ separate but 
equal”  doctrine was yet to be born. The whole tenor of 
the dominant argument in Congress was at odds with any 
governmentally enforced racial segregation as a constitu­
tionally permissible state practice.

Senator Howard, among others, asserted categorically 
that the effect of the due process and equal protection 
clauses of the Fourteenth Amendment would be to sweep 
away entirely all caste legislation in the United States. 
Certainly a number of Conservatives, notably Representa­
tive Rogers of New Jersey, a member of the Joint Com­
mittee and Senator Davis of Kentucky, were convinced that 
the effect of the amendment would be to prohibit entirely 
all laws classifying or segregating on the basis of race. 
They believed, and stated, that school laws providing sepa­
rate systems for whites and Negroes of the kind which 
existed in Pennsylvania, Ohio and in several of the Johnson- 
Reconstructecl southern states would be made illegal by 
the amendment.

It is notable that while there were some assurances 
extended by Radical Republicans to the Moderates 
and Conservatives as to the scope of the Civil Rights Act of 
18G6 in this regard, there were no such assurances in the 
debates on the Fourteenth Amendment.



120

The Republican majority realized full well that it could 
not envisage all possible future applications of the amend­
ment to protect civil rights. By separating section 1 of 
the amendment, which provides an absolute federal con­
stitutional guarantee for those rights, from section 5, which 
endows Congress with legislative capacity to protect such 
rights, the framers of the amendment assured continued 
protection of these rights, by making it possible to win en­
forcement of them in the courts and eliminated the power of 
Congress alone to diminish them.

H. The Treatment of Public Education or Segre­
gation in Public Schools During the 39th Con­
gress Must Be Considered in the Light of the 
Status of Public Education at That Time.

Although today, compulsory free public education is uni­
versally regarded as a basic, appropriate governmental 
function, there was no such unanimity existing at the time 
the Fourteenth Amendment was adopted. Arrayed against 
those who then visualized education as vital to effective 
government, there were many who still regarded education 
as a purely private function.

While it has already been shown that the conception of 
equal protection of the laws and due process of law, devel­
oped by the Abolitionists before the Civil War, was so broad 
that it would necessarily cover such educational segregation 
as is now before this Court, compulsory public education at 
that time was the exception rather than the rule. The con­
ception of universal compulsory free education was not 
established throughout the states in 1866. The struggle 
for such education went on through most of the 19th century 
and, even where accepted in principle in some of the states, 
it sometimes was not fully put into practice.

Prior to the first quarter of the nineteenth century child­
hood education was considered an individual private re­
sponsibility.1®5 The period 1830-1860 was one of marked 165

165 C u b b e r l y , A  B r i e f  H i s t o r y  o f  E d u c a t i o n , c c . X X V - 
X X V I (1920).



1 2 1

educational advancement. It has commonly been termed 
as the era of the Common School Revival, a movement to 
extend and improve facilities for general education. This 
movement flourished in New England under the leadership 
of Horace Mann, Henry Barnard and others. There was a 
definite tendency throughout the country to shift from 
private to public support of education and this trend ex­
tended to normal schools and facilities for secondary and 
higher education. Many states, urged on by educational 
leaders, publicists and statesmen, began making legislative 
provisions for public education.

On the other hand, these gains have been commonly ex­
aggerated and in some respects misinterpreted. The laws 
were by no means always carried into effect and the recom­
mendations of the reformers were, in most instances, ac­
cepted with great hesitancy.1"6 Another authority after 
appraising public education during the period just prior to 
the Civil War made the following generalizations:

“ Practically all the states were making substan­
tial progress in the development of systems of public 
education. (2) At the close of the period no single 
state can be said to have been providing any large 
percentage of its children and youth with schools 
well-supported and well-taught. (3) The facilities 
for secondary education were by no means as ex­
tensive as has commonly been reported. (4) Re­
gional differences in educational development have 
been exaggerated; and (5) where sectional differ­
ences in school support and attendance did exist they 
appear to have been due more to differentials in 
urban and rural development than to differences 
in social attitudes and philosophies. ’ ’ 166 167

In general, it should be noted that in New England and 
in New York the main problem during this period was to

166 E d w a r d s  a n d  R i c h e y , T h e  S c h o o l  i n  t h e  S o c i a l  O r d e r  
421 (1947).

167 Id . at 423.



122

improve the educational systems which had already been 
established and to secure additional support for them. In the 
Middle Atlantic states the major problem was to establish 
systems of public schools and to provide effective public 
education. In the West, the prevailing political and social 
philosophy required that at least some degree of education 
be provided to as large an element of the population as 
possible.

Public education was much slower in getting under way 
in the South. In most of the southern states, despite some 
promising beginnings, an educational system was not created 
until after the close of the Civil War. One historian con­
cluded :

“ . . . although the ‘ common school awakening’ 
which took place in the Northern States after Horace 
Mann began his work in Massachusetts (1837) was 
felt in some of the Southern States as well, and 
although some very commendable beginnings had 
been made in a few of these States before 1860, the 
establishment of state educational systems in the 
South was in reality the work of the period follow­
ing the close of the Civil War. The coming of this 
conflict, evident for a decade before the storm broke, 
tended to postpone further educational develop­
ment.”  168

Public education in the South made progress only after it 
became acceptable as being compatible with its ideal of a 
white aristocracy.169

Among the factors responsible for this condition were 
the aristocratic attitude which held that it was not neces-

168 C u b b e r l y , P u b l i c  E d u c a t i o n  i n  t h e  U n i t e d  S t a t e s  251 
(1919).

169 E d w a r d s  a n d  R i c h e y , o p . cit . su p ra  n. 166, at 434.



sary to educate the masses, the reluctance of the people to 
tax themselves for educational purposes, the marked indi­
vidualism of the people, born of isolation, and the im­
perfect state of social and political institutions. Most 
southerners saw little or no relation between education and 
life. Consequently, the view prevailed that those who could 
afford education could indulge themselves in securing it 
and those who could not afford it lost little, if anything. 
This southern attitude was aptly summed up fifteen years 
after the close of the war by the statement of Virginia’s 
Governor F. W. M. Holliday that public schools were “ a 
luxury . . .  to be paid for like any other luxury, by the 
people who wish their benefits.”  170 Education in the South 
was not so much a process of individual and community im­
provement as it was an experience that carried with it a 
presumption of social equality for those who shared it, 
a view hardly compatible with any notion of universal 
education which included persons of diverse social and 
ethnic backgrounds.

Between 1840 and 1860, public education began to 
advance in the South but its benefits were denied Negroes. 
It is significant that racist and other types of intolerant 
legislation increased markedly during this period. While 
education could be extended to all whites who, for political 
purposes, belonged to one big happy family, there was 
nothing in such a conception that suggested that Negroes 
should be included.171 The editor of the authoritative ante­
bellum organ of southern opinion, DeBow’s Review, sum­
med up the matter of education for Negroes during slavery 
as follows: “ Under the institution of slavery we used to 
teach them everything nearly except to read.”  172

The framers of the Fourteenth Amendment were familiar 
with public education, therefore, only as a developing con-

170 Quoted in W o o d w a r d , O r i g i n s  o f  t h e  New S o u t h  61 
(1951).

171 D e B o w , T i i e  I n t e r e s t  i n  S i.a v e r y  o f  t h e  S o u t h e r n  
N o n - S l a v e h o l d e r  3-12 (1860).

172 R e p o r t  o f  t h e  J o i n t  C o m m i t t e e  o n  R e c o n s t r u c t i o n , 39th 
Cong., 1st Sess., Pt. IV , 135 (1866).



124

cept. We have already demonstrated that they were 
determined to eliminate all governmentally imposed racial 
distinctions— sophisticated as well as simple minded—and 
expressed their views in the broadest and most conclusive 
terms. The intentions they expressed were definitely broad 
enough to proscribe state imposed racial distinctions in 
public education as they knew it, and the language which 
they used in the Fourteenth Amendment was broad enough 
to forever bar racial distinctions in whatever public educa­
tional system the states might later develop.

Furthermore, the framers intended that Congress would 
have the power under section 5 to provide additional sanc­
tions, civil and criminal, against persons who attempted 
to enforce states statutes made invalid by section 1 of the 
Amendment. As stated above, Representative Bingham pur­
posely revised an earlier draft of the Amendment so that the 
prohibitions of section 1 would be self-executing against 
state statutes repugnant thereto and would be beyond the 
threat of hostile Congressional action seeking to repeal civil 
rights legislation. In other words, the judicial power to 
enforce the prohibitory effect of section 1 was not made 
dependent upon Congressional action.

Thus, the exercise of this Court’s judicial power does 
not await precise Congressional legislation. This Court 
has repeatedly declared invalid state statutes which con­
flicted with section 1 of the Fourteenth Amendment, even 
though Congress had not acted.173 For example, there 178

178 Of course, Title 8 provides a remedy in law or equity against 
any person acting under color of State law who deprives anyone within 
the jurisdiction of the United States of rights secured by the Federal 
Constitution or laws. It provides: “ Every person who, under color 
of any statute, ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any citizen of the 
United States or other person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured in an action 
at law, suit in equity, or other proper proceeding for redress.” 
8 U. S. C. § 43.



is no federal statute to the effect that a state which permits 
released time for religious instructions is acting in a way 
prohibited by the Fourteenth Amendment. This Court, 
nevertheless, held that such state action conflicted with 
section 1 of the Fourteenth Amendment and directed the 
trial court to enjoin the continuance of the proscribed state 
action. Illinois ex rel. McCollum v. Board of Education, 
333 U. S. 203.

Similarly, this Court has acted to redress violations 
of constitutional rights, even in the absence of specific 
Congressional statute, in a long series of cases involving 
the rights of freedom of expression and freedom of worship 
under the Fourteenth Amendment. See e.g., De Jonge v. 
Oregon, 299 U. S. 353. And this Court has often vindicated 
the constitutional rights of members of minority groups 
in the area of public education in the absence of any Con­
gressional statute. Sweatt v. Painter, supra.

Indeed, this rule has been applied in all areas in which 
the prohibitory effect of section 1 has been employed by 
the Court. E.g., Miller v. Schoene, 276 U. S. 272; McCardle 
v. Indianapolis Water Co., 272 U. S. 400. To now hold 
Congressional action a condition precedent to judicial action 
would be to stultify the provisions in the Federal Constitu­
tion protecting the rights of minorities. In effect, this 
Court would be holding that action by a state against an 
unpopular minority which the Constitution prohibits 
cannot be judicially restrained unless the unpopular 
minority convinces a large majority (the Avhole country as 
represented in Congress) that a forum in which to ask 
relief should be provided for the precise protection they 
seek.



1 2 6

I. During the Congressional Debates on Pro­
posed Legislation Which Culminated in the 
Civil Rights Act of 1875 Veterans of the 
Thirty-Ninth Congress Adhered to Their Con­
viction That the Fourteenth Amendment Had 
Proscribed Segregation in Public Schools.

At various times during the 1870’s, Congress considered 
bills for implementing the Fourteenth Amendment as well 
as the Civil Rights Act of 1866. Debate on these measures 
was on occasion extremely significant, since it gave members 
of Congress an opportunity to express themselves as to 
the meaning and scope of the Amendment. These observa­
tions were the more significant in that perhaps two-fifths 
of the members of both Houses in the early seventies were 
veterans of the Thirty-ninth Congress which had formu­
lated the Amendment. Moreover, the impact of the Amend­
ment upon segregated schools had by this time moved into 
the public consciousness so that Congressmen now had an 
opportunity to say specifically what they thought about the 
validity under the Amendment of state statutes imposing 
segregation upon public school systems.

The second session of the Forty-second Congress, which 
convened in December, 1871, soon found itself involved in 
a fairly extended discussion of the effect of the Fourteenth 
Amendment upon racial segregation, particularly in school 
systems. Early in the session the Senate took under con­
sideration an amnesty bill to restore the political rights of 
ex-Confederate officials in accordance with the provisions 
of section 3 of the Amendment. On December 20, Senator 
Sumner of Massachusetts, now a veteran champion of the 
rights of the Negro, moved the following as an amendment 
to the measure under consideration:

“ Section— That all citizens of the United States, 
without distinction of race, color, or previous condi­
tion of servitude, are entitled to the equal and 
impartial enjoyment of any accommodation, advan­
tage, facility, or privilege furnished by common 
carriers, whether on land or water; by inn-keepers;



127

by licensed owners, managers, or lessees of theaters 
or other places of public amusement; by trustees, 
commissioners, superintendents, teachers, or other 
officers of common schools and other public institu­
tions of learning, the same being supported or 
authorized by law. . . and this right shall not be 
denied or abridged on any pretense of race, color, or 
previous condition of servitude.”  174

Here was a provision, which if adopted would commit 
Congress to the proposition that under the Fourteenth 
Amendment it could do away entirely with state school 
statutes providing for segregated school systems. Sumner 
attacked school segregation at length. The public school, 
he asserted, “ must be open to all or its designation is a 
misnomer and a mockery. It is not a school for whites 
or a school for blacks, but a school for all; in other words 
a common school for all.”  Segregation he called an “ odius 
discrimination”  and an “ ill-disguised violation of the prin­
ciple of Equality.”  175

In the debate that followed, it was apparent that a 
large majority of the Republicans in the Senate were con­
vinced that Congress quite appropriately might enact such 
legislation in accordance with section 5 of the Fourteenth 
Amendment.

Senator Carpenter of Wisconsin, one of the best consti­
tutional lawyers in the Upper House, was doubtful of the 
constitutionality of Sumner’s measure insofar as it applied 
to churches. But he had no doubt on the authority of Con­
gress to guarantee the right of all persons, regardless of 
race or color, to attend public schools, to use transporta­
tion facilities, and the like, and he offered a resolution of his 
own to this end.176 Even the conservative Kentuckian Gar­
rett Davis admitted that there was no question of congres­
sional competence under the Amendment to guarantee these * 170

174 Cong. Globe, 42nd Cong., 2nd Sess. 244 (1871).
173 Id, at 383-384.
170 M  at 760.



1 2 8

rights as against state action, though he challenged the 
validity of any statute protecting rights against private 
discrimination.177 And Senator Stevenson of Kentucky, 
another strong enemy of mixed schools, confined his attack 
to discussion of the evil involved in an attempt to “ coerce 
social equality between the races in public schools, in hotels, 
in theatres.. . he spoke not at all of constitutional objec­
tions.178

The real objection to Sumner’s measure, however, was 
not the constitutionality of the measure itself, but the 
incongruity of its attachment as a rider to an amnesty bill, 
which required a two-thirds majority of both Houses of 
Congress. Nonetheless, the Senate, after extended debate, 
adopted Sumner’s amendment, including the provision ban­
ning segregated schools, by a vote of 28-28, the ballot 
of the Vice President breaking the tie.179 The amnesty 
measure itself later failed to obtain the necessary two- 
thirds majority of the Senate.

The impressive Senate support in favor of a bill which 
would have banned segregation in state school systems 
alarmed Conservatives in both Houses, who now began to 
advance, very deliberately, the idea that “ separate but 
equal”  facilities would be constitutional under the limita­
tions of the equal protection clause of the Fourteenth 
Amendment. In the House, a few days after the defeat 
of the amnesty bill, Representative Frank Hereford of West 
Virginia offered the following resolution as an expression 
of conservative sentiment:

“ Be it resolved, That it would be contrary to the 
Constitution and a tyrannical usurpation of power 
for Congress to force mixed schools upon the States, 
and equally unconstitutional and tyrannical for Con-

177 Id . at 764.
178 Id . at 913.
179 Id . at 919. The Senate vote on the amnesty bill was 33 to 19 

in favor of the measure. Id . at 929.



129

gress to pass any law interfering with churches, 
public carriers, or inn-keepers, such subjects of legis­
lation belonging of right to the States respectively.”

There was no debate on the Hereford resolution, which was 
put to an immediate vote and defeated, 85 to 61, 94 not vot­
ing.180

Later in the session, there was still further debate in 
the Senate concerning segregated schools. With a second 
amnesty bill up for consideration, Sumner on May 8 again 
moved an amendment providing:

“ That no citizen of the United States shall, hy reason 
of race, color, or previous condition of servitude, be 
excepted or excluded from the full and equal enjoy­
ment of any accommodation, advantage, facility, or 
privilege furnished by inn-keepers; by common car­
riers . . .  or . . .  by trustees, commissioners, superin­
tendents, teachers, and other officers of common 
schools and other public institutions of learning, the 
same being supported by moneys derived from gen­
eral taxation, or authorized by law. . . . ”  181

This proposal led to sharp debate and decided differences 
of opinion among the Republican majority. Senator Trum­
bull of Illinois, who was the author of the Civil Rights Act 
of 1866 and who had become decidedly more conservative in 
his political outlook since the early Reconstruction era, 
now insisted that the right to attend public schools was in 
any event not a civil right, so that Congress could not 
legislate on the subject under the Fourteenth Amendment. 
But Senator George Edmunds of Vermont, already known 
as a distinguished constitutional lawyer and who had en­
tered the Senate in 1866 in time to participate in the debates 
on the Fourteenth Amendment, dissented sharply, insisting 
that the right to attend tax-supported public schools was 
a civil right and therefore subject to regulation by Con-

180 /c/. at 1582.
181 Id . at 3181.



130

gress.182 Senator Morton taking tlie same view, insisted 
that “ if the right to participate in these schools is to be 
governed by color, I say that it is a fraud upon those who 
pay the taxes.”  And he added that where there are public 
schools supported by common taxation upon everybody, 
white and black, then there is a civil rights that there shall 
be equal participation in those schools.

Observing that the Ohio Supreme Court had but lately 
held constitutional a state statute providing for segregation 
in public schools, he argued that Congress was entirely 
competent under the Fourteenth Amendment to prohibit 
segregated schools.

Senator Arthur Boreman of West Virginia also took it 
as a matter of course that Congress had the power under 
the amendment to prohibit separate but equal facilities in 
school systems; he thought that Congress ought not to 
force the issue at present:

“ The time will come when . . . these distinctions will 
pass away in all the States, when school laws will 
be passed without this question appearing upon the 
face of those laws; but it is not so now, and for the 
present I am willing to allow the laws of the State to 
remain as they are where they provide schools for 
both classes.”  183

At the close of the debate, the proponents of segregated 
school systems tried unsuccessfully to modify the Sumner 
measure to eliminate the requirement for mixed school 
systems. Senator Orris Ferry of Connecticut first moved 
to strike out entirely the provisions of the Sumner amend­
ment which related to public school systems. This motion 
the Senate defeated 26 to 25.184 Senator Francis P. Blair 
of Missouri then offered another amendment to allow “ local

182 Id . at 3190.
188 Id . at 3195.

Id , at 3256, 3258.



131

option”  elections within the states on the question of mixed 
versus segregated schools. Sumner, Edmunds and Howe 
all strongly condemned this proposal, which the border and 
southern Senators as strongly commended. The Blair 
amendment in turn met defeat, 23 to 30.185 Finally, an 
amendment to strike out the first five sections of the Sumner 
measure, thereby completely destroying its effect, was de­
feated 29 to 29, with the Vice President casting a deciding 
negative vote.186 The Senate then formally adopted the 
Sumner amendment to the amnesty bill, 28 to 28, with the 
Vice President voting in the affirmative.187

The conclusion seems inescapable that as of 1872 a 
substantial majority of the Republican Senators and per­
haps half of the Senate at large believed that the prohi­
bitions of the Fourteenth Amendment extended to segre­
gated schools.

The authority of the judiciary to act in this field was 
specifically recognized and not disputed.188 A significant 
number of the Senators in question, among them Edmunds, 
Howe, Sumner, Conkling, and Morrill, had been in Congress 
during the debates on the adoption of the Amendment, while 
Conkling and Morrill had been members of the Joint Com­
mittee. And Vice President Henry Wilson, who several 
times cast a deciding vote in favor of prohibiting segre­
gated schools not only had been in Congress during the 
debates on the Amendment but had also authored one of 
the early civil rights bills of the Thirty-ninth Congress.

The first session of the Forty-third Congress, which 
opened in December, 1873, saw extended discussion of the 
issue of segregated schools in both Houses. On December

185 Id . at 3262.
186 Id . at 3264-3265.
187 Id . at 3268. The amnesty bill itself subsequently received 

a favorable vote of 32 to 22, thereby failing to receive the necessary 
two-thirds majority. Id . at 3270.

188 Id . at 3192.



132

18, Representative Benjamin F. Butler of Massachusetts, 
chairman of the House Judiciary Committee and long one 
of the most outspoken leaders of the Radical faction of 
the Republican party, introduced the following measure 
from his committee:

. whoever, being a corporation or natural person 
and owner, or in charge of any public inn, or of 
any place of public amusement or entertainment 
for which a license from any legal authority is 
required, or of any line of stage-coaches, railroad, 
or other means of public carriage of passengers 
or freight, or of any cemetery or other benevolent 
institution, or any public school supported in 
whole or in part at public expense or by endow­
ment for public use, shall make any distinction 
as to admission or accommodation therein of any 
citizen of the United States because of race, color, or 
previous condition of servitude, shall, on conviction 
thereof, be fined not less than $100 nor more than 
$5000 for each offense. . . . ’ ’ 189

This measure inspired a somewhat bitter two-day debate 
early in January, 1874, during which the power of Con­
gress to prohibit segregated schools received more atten­
tion than any other single issue involved. The most ex­
tended defense of the constitutionality of Butler’s measure 
was made by Representative William Lawrence of Ohio, 
who began with the flat assertion that “ Congress has the 
constitutional power to pass this bill.”  Denying that civil 
rights were any longer in the exclusive care of the states, he 
asserted that since the passage of the Fourteenth Amend­
ment, “ if a state permits any inequality in rights to be 
created or meted out by citizens or corporations enjoying 
its protection, it denied the equal protection of laws.”  He 
then launched into an extended historical analysis of the 
debates in the Thirty-ninth Congress before and during 
the passage of the Amendment. He recalled Bingham’s

18a 2 Cong. Rec. 318 (1873-1874).



133

statement in opposition to the original extreme language 
of the Civil Eights bill, in which the Ohioan had said that 
the proper remedy for state violation of civil rights was to 
be achieved not by an “ arbitrary assumption of power,’ ’ 
but “ by amending the Constitution of the United States 
expressly prohibiting the States from any such abuse of 
power in the future.”  He quoted Stevens’ and How­
ard’s speeches introducing the Amendment in Congress to 
show the broad purpose which they had represented to be 
the objectives of the Joint Committee. In some irony, he 
quoted various conservatives in the House, among them 
Finck, Boyer and Shanklin, who had asserted again and 
again that the Amendment would place all civil rights within 
the protective custody of the federal government.180 Law­
rence’s speech was the more impressive in that he was a 
veteran of the Thirty-ninth Congress who had actively sup­
ported both the Civil Rights Act and the passage of the 
Fourteenth Amendment. Moreover, he was held in great re­
spect in Congress as an able jurist and constitutional law­
yer.181

The most extended argument in opposition to Lawrence 
was advanced by Representative Roger Q. Mills of Texas, 
who presented the contention that civil rights, in spite of 
the Fourteenth Amendment, were still entrusted entirely 
to the care of the states. Congress, he thought, had no 
right to touch the public school system of the several states. 
“ The States,”  he said, “ have . . . [an] unquestioned right 
. . . to establish universities, colleges, academies, and com­
mon schools, and govern them according to their own pleas­
ure.”  He relied upon the narrow interpretation of the 
“ privileges or immunities”  clause of the Fourteenth 
Amendment recently advanced by the Supreme Court in 
the Slaughter House Cases as a new argument in support of * 111

180 Id . at 412 ff.
111 11 D i c t i o n a r y , op. cit. supra n. 129, at 52. He was later 

the author of the statute creating the Department of Justice.



134

Iris contention. And lie finished with the warning, not en­
tirely unheard in the twentieth century, that if Congress 
passed any such measure as the Butler bill, “ the Legisla­
tures of every State where the white people have control 
will repeal the common-school laws. ’ ’ ia- At the end of de­
bate, Butler’s bill was recommitted on the motion of its 
sponsor, and was not heard of again during the session.

More significant events were occurring in the Senate. On 
December 2, Sumner had once more presented his now well- 
known civil rights measure, this time as an independent 
Senate bill instead of a proposed amendment to an amnesty 
resolution.192 193 This bill finally came up for debate in late 
April and May, although Sumner himself had died in 
March. Conkling of New York, Boutwell of Massachusetts, 
Howe of Wisconsin, Edmunds of Vermont, and Freling- 
huysen of New Jersey all gave it very effective support 
in debate.194

In a strong speech, Senator Frelinghuysen pointed out 
that a variety of conflicting state decisions had introduced 
some confusion into the question of whether or not state 
statutes setting up segregated school systems were con­
stitutional under the Amendment. The present measure, 
he thought, would destroy “ injurious agitation”  on that 
subject. There could be no question of the constitutional 
power of Congress to enact the bill; the “ privileges or 
immunities”  and “ the equal protection”  clauses, in par­
ticular, were especially germane to congressional power. 
And he pointed out that if the present bill became law, it 
would still be possible to pursue an informal voluntary 
segregation by the consent of both parents and school 
boards, where for a time that seemed advisable. But he 
added that segregated school systems established by law

192 2 Cong. Rec. 383 ff. (1873-1874).
193 Id. at 2.
194 Boutwell and Conkling, it will be recalled, had both served as 

members of the Joint Committee.



135

were in complete violation of the whole spirit of the Amend­
ment ; separate schools for colored people were inevitably 
inferior to those for whites. “ S ir” , he said in conclusion, 
“ if we did not intend to make the colored race full 
citizens . . .  we should have left them slaves.”  185

Senator Edmunds used both constitutional and prag­
matic arguments in support of the bill. “  What the Con­
stitution authorizes us to do is to enforce equality,”  he 
said, “ and . . . not half-equality, for there is no such thing 
as half-equality. It is entire equality or none at all. ’ ’ And 
segregated schools imposed inequality on Negroes. He 
quoted figures from Georgia school statistics, to demon­
strate that although forty-three percent of the children in 
that state were colored, there were nonetheless only 356 
schools for colored children as against 1379 for whites. In 
the light of this kind of evidence, he thought, the duty of 
Congress was clear.* 196

Senator Boutwell declared that “ opening the public 
schools of this country to every class and condition of 
people without distinction of race and color, is security . . . 
that . . . the rising . . . generations will advance to manhood 
with the fixed purpose of maintaining these principles [of 
the Republic].”  Like Edmunds, he argued that segregation 
made either adequate or equal facilities impossible; there 
was not enough money in the South to support two school 
systems.197

Senator Howe asserted that “ . . . I am of the opinion 
that the authority of Congress to issue these commands, to 
enact this bill into law, is as clear, as indisputable as its 
authority to lay taxes or do any other one thing referred to 
in the Constitution.”  Like Frelinghuysen he thought that 
voluntary segregation might exist in some places for a time 
without violating the amendment. “ Open two school houses

193 Id. at 3451-3455.
196 Id. at 4173.
197 Id. at 4116.



136

wherever you please;”  he said, and “ furnish in them equal 
accommodations and equal instruction, and the whites will 
for a time go by themselves, and the colored children will 
go by themselves for the same reason, because each will 
feel more at home by themselves than at present either can 
feel with the other. . . . ”  But legally segregated schools, he 
thought would not in fact be equal, and it was the duty of 
Congress to prohibit them.19*

Senator Pease of Mississippi shortly before the bill was 
passed speaking in favor of the bill said in unequivocal 
terms:

“ The main objection that has been brought for­
ward by the opponents of this bill is the objection 
growing out of mixed schools. . . . There has been a 
great revolution in public sentiment in the South 
during the last three or four years, and I believe 
that to-day a majority of the southern people are in 
favor of supporting, maintaining, and fostering a 
system of common education . . .  I believe that the 
people of the South so fully recognize this, that if 
this measure shall become a law, there is not a State 
south of Mason and Dixon’s line that will abolish 
its school system. . . .

* * * I say that whenever a State shall legislate 
that the races shall be separated, and that legislation 
is based upon color or race, there is a distinction 
made; it is a distinction the intent of which is to 
foster a concomitant of slavery and to degrade him. 
The colored man understands and appreciates his 
former condition; and when laws are passed that say 
that ‘ because you are a black man you shall have a 
separate school,’ he looks upon that, and justly, as 
tending to degrade him. There is no equality in that.

“ . . . because when this question is settled I 
want every college and every institution of learning 
in this broad land to be open to every citizen, that 
there shall be no discrimination.” 198 199

198 Id. at 4151.
199 Id. at 4153-4154.



137

The opponents of the Sumner bill meantime had become 
aware of the epoch-making significance of the Supreme 
Court’s decision in the Slaughter House Cases, and they 
leaned very heavily upon Justice Miller's opinion during 
the debate. Thurman of Ohio analysed the Slaughter House 
Cases at length to prove his former contention that the 
main body of civil rights was still in the custody of the 
states and that the present bill was unconstitutional.” 200 
Senator Henry Cooper of Tennessee, after citing Justice 
Miller’s opinion to make the same constitutional point, 
asked the Republican majority, “ . . . what good are you to 
accomplish thus by forcing the mixture of the races in 
schools!” 201 And Senator Saulsbury of Delaware, who, 
in 1866 had insisted that if Congress enacted the 
Fourteenth Amendment it would work an entire revolution 
in state-federal relations, now argued flatly that the Sumner 
bill was unconstitutional under Justice Miller’s interpreta­
tion of the limited scope of the “ privileges or immunities”  
clause of the Amendment.202

However, the Senate majority remained firm in its in­
tention to pass the bill with the ban on segregated schools. 
At the close of debate, Senator Aaron Sargent of Cali­
fornia presented an amendment that “ nothing herein con­
tained shall be construed to prohibit any State or school 
district from providing separate schools for persons of 
different sex or color, where such separate schools are 
equal in all respects to others of the same grade estab­
lished by such authority, and supported by an equal pro rata 
expenditure of school funds.”  This amendment the Senate 
promptly defeated, 21 to 26.203 Senator McCreery then 
moved an amendment providing that “ nothing herein con­
tained shall be so construed as to apply to schools already

200 Id. at 4089.
201 Id. at 4154.
202 Id. at 4159.
203 Id. at 4167.



138

established.”  This, too, met defeat, mustering but eleven 
“ ayes”  in its support.204 Immediately after this, the Sen­
ate, on May 22, passed the Sumner bill, by a vote of 29 to 16, 
and sent it to the House.205 *

Again the conclusion with respect to congressional in­
tent as regards segregated schools seems fairly clear: a 
majority of the Senate in the Forty-third Congress, under 
control of leaders, a number of whom had supported the 
passage of the Fourteenth Amendment eight years earlier, 
thought Congress had the constitutional power to ban segre­
gated schools and that it would be good national policy to 
do so.200

Congress adjourned before the House could take action 
on the Sumner bill, so that the measure carried over to the 
second session of the Congress, beginning in December, 
1874. And now occurred a curious anticlimax with respect 
to the prohibition of segregated schools; Congress speedily 
enacted what virtually amounted to the Sumner bill of 1874 
into law, but with the provision banning segregated schools 
eliminated from the bill.

The critical action occurred in the House of Representa­
tives, where Butler on December 16 introduced what 
amounted to a somewhat modified draft of the measure 
passed by the Senate the previous spring. The constitu­
tional debates produced little that was new. It was ap­
parent that Congress by virtue of Section 5 had the consti­
tutional power to take all civil liberties under its protec­
tion. Representative Robert Hale of New York, a veteran 
of the Thirty-ninth Congress, twitted Finck of Ohio for his 
fallible memory in forgetting so conveniently that in 1866,

204 Id . at 4171.
205 Id. at 4176.
200 Flack long ago reached a similar conclusion, that the great 

majority in Congress who voted for Sumner’s bill “ fully believed 
they had the power to pass it.”  “ Of all the evidence,”  he said, “ only 
a very minor part of it against this conclusion.”  F l a c k , o p . cit. 

supra n. 79, at 271.



139

lie had solemnly warned that the impending amendment 
would place all civil rights under federal protection.207

Whatever may be said about the quantum or quality 
of Congressional debates on one side or the other no one 
can deny that the 39tli Congress opened with a determina­
tion on the part of the Radical Republican majority to de­
prive the states of all power to maintain racial distinc­
tions in governmental functions. No one can gainsay that 
this determination permeated the 39th Congress and con­
tinued through the passage adoption of the Fourteenth 
Amendment. The debates and all of the related materials 
show conclusively that the Fourteenth Amendment effec­
tively gave constitutional sanction to the principle that 
states are thereby deprived of all power to enforce racial 
distinctions in governmental functions including public 
schools.

II
There is convincing evidence that the State Legis­

latures and conventions which ratified the Fourteenth 
Amendment contemplated and understood that it 
prohibited State legislation which would require racial 
segregation in public schools.

The Fourteenth Amendment was submitted to the states 
for consideration on June 16, 1866. 14 Stat. 358. It was 
deliberated by thirty-seven states and ratified by thirty- 
three.208 We urge that the evidence with respect to the

207 3 Cong. Rec. 979, 980 (1875).
20s The ratifying states included twenty free or non-slaveholding 

states (Connecticut, New Hampshire, New Jersey, Oregon, Vermont, 
New York, Ohio, Illinois, Kansas, Maine, Nevada, Indiana, Minne­
sota, Rhode Island, Wisconsin, Pennsylvania, Michigan, Massachu­
setts, Nebraska and Iowa), two former slave-holding but loyal states 
(West Virginia and Missouri), and the eleven former slaveholding 
states which had seceded (Alabama, Arkansas, Florida, Georgia, 
Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, 
Texas and Virginia). Delaware, Kentucky and Maryland, three 
former slave-holding but non-seceding states, expressly rejected the 
Amendment. California, probably because the control of its legisla­
ture differed in each house, was unable to take any definitive action.



140

states’ understanding indicates that three-fourths of the 
states understood and contemplated the Amendment to 
forbid legislation compelling the assignment of white and 
Negro youth to separate schools.

The evidence which compels this conclusion is adduced 
from governors’ messages, reports of the legislative com­
mittees on federal relations and entries in the journals 
of the legislatures. At that time, the legislatures, almost 
without exception, kept no verbatim record of debates and 
speeches; and the journals merely noted motions and votes. 
There are, however, newspaper summaries of some speeches 
and proceedings. But much of the evidence from these 
sources is inadequate.

More significant is the modifications which the states 
made in their schools laws. For if it was understood 
in the legislatures, which considered the proposed Amend­
ment, that ratification would perforce forbid compulsory 
segregated schools, it seems certain that the legislatures 
would have apprehended its effect upon the state’s consti­
tutional or statutory provisions for public schools. If, for 
example, a state required or authorized segregated schools 
under existing law, presumably the legislature would not 
knowingly adopt the Amendment without giving some 
thought to its implications. After adoption, it would be 
expected that measures would be taken to conform the 
school laws to the new constitutional mandate. If, how­
ever, a state’s school laws and practices already conformed 
to the understanding that the Fourteenth Amendment for­
bade segregated schools, it is probable that its legislature 
would not have objected to the Amendment on this question 
and would afterwards either retain or reinforce its school 
laws. On the other hand, if there was an authorization or re­
quirement of segregation in a state’s school laws, and, after 
ratification, the legislature took no action to end this dis­
parity, undoubtedly it would appear that this state did not 
understand the Amendment to have the effect which Appel­
lants urge. Yet, if a state under these same conditions had



141

rejected the Amendment, it would suggest that the Amend­
ment’s impact upon the school segregation law was a con­
trolling factor. We submit, the new constitutional and 
statutory provisions enacted with respect to public schools 
during the critical period, i.e., from 1866, the year the 
Amendment was submitted, until several years following 
adoption, constitute strong evidence on the question of 
the understanding of the Amendment in the state legis­
latures.

Then, too, we note that the Fourteenth Amendment 
was designed particularly as a limitation upon the late 
Confederate States. Slaughter House Cases, 16 Wall. 36. 
Each of them, except Tennessee, was required to endorse 
the Amendment and the price of readmission also required 
each to demonstrate that it “ modified its constitution and 
laws in conformity therewith.”  14 Stat. 428 (Act of March 
2,1867). In this connection, Representative Bout well signi­
ficantly declared: -09

“ We are engaged in the great work of reconstructing 
this Government, and I suppose if we are committed 
to anything, it is this: that in the ten States not now 
represented there shall hereafter be no distinction 
on account of race or color.”

These new constitutions, and the proposals and debates of 
the conventions which framed them, then are of utmost 
significance. Certainly, they had to measure up to the 
requirements of the Fourteenth Amendment and, there­
fore, their educational provisions apparently reflect the 
understanding of the draftsmen as to the Amendment’s effect 
upon compulsory public school segregation. Similarly, 
since the constitutions of these states, were subject to 
the scrutiny of Congress, an additional insight into the 
understanding of Congress is provided. For it would 
hardly be possible to maintain that Congress contemplated 209

209 Cong. Globe, 39th Cong., 2nd Sess. 472 (1867).



142

the Fourteenth Amendment as a prohibition on compulsory 
segregated schools if it had approved a constitution having 
a provision inconsistent with this proposition.

We now turn to the legislative history of the Fourteenth 
Amendment in the states. The proceedings in the several 
states shall be taken up in turn. Because of the geographic 
origin of certain of the instant cases and the significance 
of the contemporary understanding and contemplation of 
the effect of the Amendment upon Southern institutions, 
we will first treat the evidence from the states whose 
readmission to the Union was conditioned upon their con­
formity with the Amendment.

A. The Eleven States Seeking Readmission 
Understood that the Fourteenth Amendment 
Stripped Them of Power to Maintain Segre­
gated Schools.

Subsequent to the proclamation of the Thirteenth 
Amendment the South sought to define the relations between 
the new freedmen and white men in a manner which retained 
most of the taint of the former master-slave relationship. 
The ante-bellum constitutions remained inviolate although 
prohibitions against slavery were added. Laws were passed 
which restricted Negroes in their freedom of movement, 
employment, and opportunities for learning. Slaughter 
House Cases, 16 Wall. 36, 71-72; Strauder v. West Virginia, 
100 U. S. 303, 306-307. In Arkansas 210 and Florida,211 the 
so-called Black Codes required separate schools for the 
children of the two races.

After March 2, 1867, the date of the First Reconstruc­
tion Act, 14 Stat. 428, the South was obliged to redefine 
the status of the freedmen in conformity with their under­
standing of the Fourteenth Amendment. New constitu­
tions were adopted which without exception were free of

210 Ark. Acts 1866-67 p. 100.
211 Cong. Globe, 39th Cong., 1st Sess. 217 (1866).



1 4 3

any requirement or specific authorization of segregated 
schools. It is also significant that in almost all of these 
constitutional conventions and legislatures, the issue 
of segregated schools was specifically raised and rejected. 
And no law compelling segregated schools was enacted in 
any state until after it had been readmitted.

A rk an sas

The first of these states to be readmitted was Arkansas. 
15 Stat. 72 (Act of June 22, 1868). The constitution which 
it submitted to Congress had not one reference to race; 
the education article merely obligated the general assembly 
to “ establish and maintain a system of free schools for 
all persons”  of school age.212 It is reported that this article 
was adopted to nullify the segregated school law passed by 
the legislature earlier in 1867.213 214 Its adoption had been 
generally opposed in the Convention on the ground that it 
would “ establish schools in which there would be ‘ indis­
criminate social intercourse between whites and blacks. ’ ’ ,214 
The electorate was warned that this constitution would 
“ force children into mixed schools.”  215 But the new consti­
tution was adopted and proclaimed law on April 1, 1868.216

The general assembly convened on April 3, and ratified 
the Fourteenth Amendment on April 6, 1868.217 It then 
proceeded to repeal the former school statute and a new 
school law was proposed whereby taxes were to be assessed 
to support a system of common schools for the education 
of all children. This law was interpreted as establishing 
“ a system of schools where the two races are blended 
together. ’ ’ 218 And it was attacked because it granted white

212 A r k . C o n s t . 1868, A r t .  IX, § 1.
213 Staples, R econstruction in  A rkansas 28 (1923).
214 Id. at 247.
215 Daily Arkansas Gazette, March 19, 1868; Id., March 15, 1868.
216 Id., April 2, 1868.
217 Ark. Sen. J„ 17th Sess. 19-21 (1869).
218 Ibid.



144

parents “ no option to their children . . . but to send them to 
the negro schools . . . unless, as is now rarely the case, they 
are able to give their children education in other schools. ’ ’ 219

These provisions for public schools were included in 
the legislative record which Arkansas submitted to the 
scrutiny of Congress. Whereupon, Arkansas was re-ad­
mitted on June 22, 1868. 15 Stat. 72. One month later, 
but after readmission, the legislature amended the public 
school statute and directed the Board of Education to 
“ make the necessary provisions for establishing separate 
schools for white and colored children and youths. . . . ” 220

N orth Carolina, S outh  Carolina, L ouisiana, 
Georgia, A labama and  F lorida.

The North Carolina, South Carolina, Louisiana, Georgia, 
Alabama and Florida modifications in their constitutions 
and laws were approved by Congress in the Omnibus Act 
of June 25, 1868 and Congress authorized readmittance 
effective on the date each ratified the Amendment. 15 Stat. 
73. The constitution which Florida offered for congres­
sional review imposed a specific duty on the state to provide 
“ for the education of all children residing within its borders 
without distinction or preference.” 221 The legislature 
ratified the Amendment on June 9, 1868 and when it next 
convened passed a law to maintain “ a uniform system of 
instruction, free to all youth of six to twenty-one years. ’ ’ 222 223 * * * 
It is agreed that this law was not designed to foster 
segregated schools and by its operation “ mixed schools 
were authorized or required.”  228

219 Daily Arkansas Gazette, April 10, 1868.
220 Act of July 23, 1868 as amended by Ark. Acts 1873, p. 423. 

See Ark. Dig. Stats., c. 120 § 5513 (1874).
221 F la. Const. 1868, Art. V III § 1.
222 Fla. Laws 1869, Act of Jan. 30, 1869.
223 K n ig h t , P ublic Education in  the  South 306 (1922);

E aton , “ S pecial R eport to th e  U nited States Commissioner
of Education” , R ep. U. S. Com m r . Educ. to Secy. I n t . 127
(1871).



145

Several years later the Florida Legislature passed a 
sweeping law which forbade any racial distinction in the 
full and equal enjoyment of public schools, conveyances, 
accommodations and amusements.224 The first compulsory 
school segregation provision did not appear until over 
twenty years after readmission.225 226

In the North Carolina Constitution of 1868, the educa­
tion article called for the general assembly to maintain 
“ a general and uniform system of public schools, wherein 
tuition shall be free of charge to all the children of the 
State between the ages of six and sixteen. ’ ’ 220 Further­
more, the general assembly was “ empowered to enact that 
every child of sufficient mental and physical ability, shall 
attend the public schools”  unless otherwise educated.227 
It is reported that the Constitutional Convention refused 
by a vote of 86 to 11 to adopt a section which provided 
that “ The General Assembly shall provide separate and 
distinct schools for the black children of the state, from 
those provided for white children. ’ ’ 228 The adopted article 
also survived amendments which would have permitted 
separate schools “ for any class of the population”  provid­
ing each class shared equally in the school fund.229 Some 
proponents of the education article said that it did not force 
racial commingling but they frankly admitted that it did 
not prevent it and contended that separate schools, if 
established, should only develop out of the mutual agree­
ment of parents rather than through legislation.230 Avail-

224 Fla. Laws 1873, c. 1947.
225 F la . Const. 1885, Art. X II § 2.
226 N. C. Const. 1868, Art. IX  § 2.
227 Id., § 17.
228 Motion of Mr. Durham reported in K night , I nfluence of 

Reconstruction on E ducation 22 (1913).
229 Motions of Messrs. Graham and Tourgee reported in Id. at 22.
230 N oble, A H istory of P ublic Schools in  N orth Carolina 

340-41 (1930).



146

able contemporary comment upon the education article of 
the 1868 constitution uniformly agreed that it either author­
ized or required mixed schools.231

The 1868 Constitution, with this education article, was 
submitted to Congress and treated as being in conformity 
with the Amendment. North Carolina’s readmission was 
thus assured contingent upon its ratification of the Four­
teenth Amendment.

The state legislature convened on July 1, 1868 and rati­
fied the Amendment on July 4th.232 Three days later the 
lower house adopted a resolution providing for the estab­
lishment of separate schools, but it failed to win support in 
the upper house which successfully carried a resolution 
instructing the Board of Education to prepare a code for 
the maintenance of the system of free public schools con­
templated in the constitution.233 Significantly, this measure 
made no reference to race. It was enrolled on July 28, 
1868.234

At the next regular session after readmission, the legis­
lature passed a school law which required separate 
schools.235 However doubtful the validity of this law was to 
some as late as 1870,236 the state constitution as amended in 
1872, settled the issue by specifically requiring racial sepa­
ration in education.237

231 Wilmington Morning Star, March 27, 1868; id., March 28, 
1868, p. 2; Charlotte Western Democrat, March 24, 1868; id., April 
17, 1868, p. 2; Greensboro Times, April 2, 1868, p. 3; id., April 16, 
1868, p. 1; Fayetteville News, April 14, 1868, p. 2; id., June 2,
1868, p. 1.

232 N. C. Laws 1867, ch. C L X X X IV , Sec. 50.
233 N oble, op. cit. supra n. 230, at 297, 299.
234 See List of Public Acts and Resolutions Passed by the General 

Assembly of North Carolina, Spec. Sess. of July, 1868.
235 N. C. Laws 1868-69, c. C L X X X IV , § 50.
230 N oble, op. cit. supra n. 230, at 325.
23* Art. IX , § 2.



147

South Carolina and Louisiana both ratified the Amend­
ment on July 9, 1868 and were readmitted as of that date 
pursuant to the Omnibus Act. 15 Stat. 73. The educational 
articles in their 1868 constitutions were of the same cloth. 
The Louisiana article flatly said: “ There shall be no sepa­
rate schools or iiistitutions of learning established exclu­
sively for any race by the State of Louisiana.”  238 South 
Carolina’s constitution provided that: “ All the public 
schools, colleges and universities of this State, supported 
in whole or in part by the public school fund, shall be free 
and open to all the children and youths of the State, without 
regard to race or color.” 239 In addition to this, the South 
Carolina Constitution required the legislature to pass a 
compulsory school law after it organized facilities for the 
education of all children.240 The 1868 constitutions of both 
states also declared that all citizens, without regard to 
race or color, were entitled to equal civil and political 
rights.241

The proponents of the education articles in the Loui­
siana and South Carolina conventions defended the provi­
sions prohibiting segregation by force of law in public 
schools as an incident of equal justice or equal benefits 
in return for equal burdens; and they overwhelmingly con­
sidered compulsory segregation to be a hostile distinction 
based on race and previous condition.242 The chairman of 
the Education Committee of the South Carolina Convention, 
defending the proposed education article, explained: 243

238 L a . C o n s t . 1868, Title VII, Art. 135.
239 S. C. C o n s t . 1868, Art. X X  § 10.
240 Id., §4.
241 Id., Art. I, § 7 ; L a . Const. 1868, Title I, Art 2.
242 Proceedings of the South Carolina Constitutional Convention 

of 1868, Held at Charleston, S. C., Beginning January 14th and 
Ending March 17th, 1868, pp. 654-900 (1868) ; Official Journal of 
the Proceedings for Framing a Constitution for Louisiana, 1867-1868, 
passim  (1868).

243 Proceedings, u p . c i t . su p ra  n. 242, at 899.



148

“ The whole measure of Reconstruction is antag­
onistic to the wishes of the people of the State, and 
this section is a legitimate portion of that scheme. 
It secures to every man in this State full political 
and civil equality, and I hope members will not 
commit so suicidal an act as to oppose the adoption 
of this section.”

Continuing, he explained:244
“ We only compel parents to send their children 

to some school, not that they shall send them with 
the colored children; we simply give those colored 
children ivho desire to go to white schools, the privi­
lege to do so.”  (Emphasis supplied.)

After the Louisiana and South Carolina constitutions 
were approved by Congress, the South Carolina Legisla­
ture, in a special session, ratified the Amendment and tem­
porarily organized the school system in conformity with 
the education article, despite Governor Scott’s plea for a 
law which would require racial separation in schools as a 
preventive against “ educational miscegenation.”  243 At 
the next regular session, the school system was permanently 
organized, and a law was passed forbidding officials of the 
state university to “ make any distinction in the admission 
of students or management of the university on account of 
race, color or creed. ’ ’ 240

The Louisiana legislature acted with similar celerity 
and consistency. It assembled on June 29, 1868, ratified 
the Amendment on July 9, 1868 and enacted laws conform­
ing to the constitutional mandate against segregated 
schools.247 At its next session, it supplemented the school 24

24< Id. at 690.
245 S. C. House J., Spec. Sess., p. 51 et seq. (1868). See Charles­

ton Daily News, July 10, 1868.
246 S. C. Acts 1868-69, pp. 203-204.
247 D a b n e y , U n i v e r s a l  E d u c a t i o n  i n  t h e  S o u t h  370 (1936).



149

laws by imposing penal and civil sanctions against any 
teacher refusing to accept a pupil of either race.248 249 Subse­
quent laws forbade racial distinctions at a state institution 
for the instruction of the blind, prohibited racial separation 
on common carriers, and provided that there should be no 
racial discrimination in admission, management and disci­
pline at an agricultural and mechanical college.2411

More than a quarter-century elapsed before South Caro­
lina and Louisiana in 1895 and 1898, respectively, changed 
these laws to require racial segregation in public educa­
tion.250

The Alabama Constitutional Convention assembled on 
November 4,1867, but the education article was not adopted 
until December 5th, the final day of the session. What 
emerged was borrowed directly from the Iowa Constitution 
of 1857, in most particulars, plus the language of a statute 
passed by the 1865-66 Iowa legislature to specifically bar 
segregation in schools.251 This anti-segregation article sur­
vived two attempts to introduce provisos specifically re­
quiring the establishment of separate schools.252

Congress found that Alabama had conformed its con­
stitution with the Amendment and considered the state 
qualified for readmission as soon as it ratified the Four­
teenth Amendment. On July 13tli, 1868, the General As­
sembly fulfilled the final requirement. Thereafter, on 
August 11th, the State Board of Education, acting under 
the legislative powers conferred upon it in the constitution,

248 F a y , “ T h e  H i s t o r y  o f  E d u c a t i o n  i n  L o u i s i a n a ” , 1 U. S. 
Bu. Educ. Cir. No. 1, p. 101 (1898).

249 La. Acts 1869, p. 37; La. Laws 1871, pp. 208-10; La. Laws 
1875, pp. 50-52.

250 S. C. Const. 1895, Art. X I § 7 ; L a . Const. 1898, Art. 248.
251 Compare A l a . C o n s t . 1867, Art. XI with I o w a  C o n s t . 1857, 

Art. IX  and Iowa Laws 1865-66, p. 158.
252 Official Journal of the Constitutional Convention of the State 

of Alabama 1867-68, pp. 237, 242 (1869).



150

passed a regulation which made it unlawful “ to unite in 
one school both colored and white children, unless it be by 
the unanimous consent of the parents and guardians of such 
children . . . ”  253 But the significant point again is that 
this was done only after readmission.

Georgia, like most of the South, had no public school 
system prior to Reconstruction. In fact, no reference to 
public schools appears in either the ante-bellum Georgia 
Constitution or the Constitution of 1865 which was sub­
stantially a reenactment of the former.254

The Constitutional Convention of 1867-68, however, 
rewrote the basic state document and the committee on 
education reported a proposal to establish a thorough 
system of public education “ without partiality or distinc­
tion.’ ’ 255 During the drafting and consideration of the 
proposed education article, several efforts to include pro­
visions requiring segregated schools were defeated.256 The 
Convention adopted an article which directed the General 
Assembly to “ provide a thorough system of general educa­
tion to be forever free to all children of the State . . . ” .257

After this constitution was approved by Congress, the 
legislature ratified the Fourteenth Amendment on July 
21, 1868 and Georgia apparently qualified for readmission. 
But the General Assembly forcibly expelled its Negro 
complement at this session on the ground that their color

253 Ala. Laws 1868, App., Acts Ala. Bd. of Educ. It would 
appear that had this law been tested, application of the rule applicable 
to borrowed statutes would have invalidated it inasmuch as a similar 
statute in Iowa had been struck down on the basis of a less stringent 
constitutional provision. Clark v. Board of School Directors, 24 
Iowa 266 (1868).

254 2 Thorpe, Federal and State Constitutions 765 et seq. (1909).
255 Journal of the Constitutional Convention of Georgia, 1867-68, 

p. 151 '(1868).
256 Id., at 69, 151, 479, 558. See O rr, H i s t o r y  o f  E d u c a t i o n  

i n  G e o r g ia  187 (1950).
257 Ga . C o n s t . 1868, Art. VI.



151

made them ineligible to hold office. This action prompted 
Congress to refuse to seat the Georgia congressional 
delegation.208 The General Assembly then reconvened on 
January 10, 1870, re-seated its Negro members, ratified the 
Fourteenth Amendment again, and expunged the word 
“ white”  from all state laws.259 The conduct of this legis­
lature satisfied Congress and Georgia was readmitted to 
the Union on July 15, 1870. 16 Stat. 363.

Three months later, on October 13, 1870, the state 
legislature passed a public school act which in section 32 
established a system of segregated schools.290 The state 
constitution was amended in 1877 and validated this legisla­
tion by an express requirement for racial separation in 
public schools.* 200 201

T exas.

In Texas a Constitutional Convention met in June 1868 
to frame the constitution under which it was subsequently 
readmitted. Drafted to secure the approval of Congress,202 
it required the legislature to maintain “ a system of public 
free schools, for the gratuitous instruction of all the 
inhabitants of this State of school age. ’ ’ 203 This constitu­
tion was accepted at the elections in 1869, and the legislature, 
without discussion, ratified the three Civil War Amend­
ments on February 18, 1870.204 Texas was readmitted on 
March 30, 1870, 16 Stat. 80, and the legislature drafted 
a public school law which provided that local boards of

258 O r r , o p . c i t . su p ra  n. 256, at 195-196.
259 Ga. Sen. J. Pt. II, p. 289 (1870); Ga. House j .  pp. 307, 1065 

(1870).
200 Ga. Laws 1870, p. 57.
201 Ga . C o n s t . 1877, Art. V III § 1.
202 T e x . C o n s t . 1871, Art. I § 1.
203 Id. Art. IX  §§ 1-4.
204 Daily State Journal, February 20, 1870.



152

education, “ when in their opinion the harmony and success 
of the schools require it, . . . may make any separation of 
the students or schools necessary to secure success in 
operation . . . ’ ’.285 Contemporary opinion was that this 
grant of discretion to school boards was a restrained effort 
to achieve racial separation without offending Congress 
and that the Fourteenth Amendment forbade the require­
ment of separate schools although it did not compel mixed 
schools.286 It was not until 1876, when Texas adopted a 
new constitution, that racial separation in schools was 
expressly required by law.265 * 267 * *

V irginia.

Virginia submitted to Congress a constitution which 
contained no reference to race or racial separation in public 
schools.288 In the Constitutional Convention, the issue of 
segregation was introduced when the report of the commit­
tee on education was being considered. First, an amendment 
was proposed to provide ‘ ‘ that in no case shall white and col­
ored children be taught in the same school. ’ ’ 289 This amend­
ment was defeated.270 Subsequently, a proposal to add an 
independent section providing for the establishment of 
segregated schools met a like fate.271 A provision was also 
submitted to require that public schools be open to all 
classes without distinction and that the legislature be denied 
the power to make any law which would admit of any

265 6 Tex. Laws 1866-71, p. 288. (Emphasis added.)
268 Flake’s Daily Bulletin, March 3, 1870; Id. March 13, 1870.
287 T e x . C o n s t . 1876, Art. VII § 7; 8 T e x . Laws 1873-79 

C X X  § 54.
288 V a . Const. 1868, Art. V III § 3.
289 J o u r n a l  o f  t h e  V i r g i n i a  C o n s t i t u t i o n a l  C o n v e n t i o n , 

1867-68, p. 299 (1868).
270 Id. at 300; Richmond Enquirer, March 31, 1868.
271 Journal, o p  c i t . su p ra  n. 269, at 301.



153

invidious distinctions.272 This proposal and a substitute to 
the same effect were also defeated.273 Opponents of the 
proposals to prohibit segregated schools explained the 
failure of passage, not on the grounds of fundamental 
objection, but because it was feared that the adoption of 
such an article in the constitution would doom its chance 
of ratification.274 Thus, an article merely directing the 
general assembly to provide for a uniform system of public 
free schools was adopted ‘ ‘ rather than risk having the Con­
gress or Union Leagues force an obnoxious law on them.”  275 *

After the election of 1869, at which the constitution was 
adopted, the General Assembly convened and ratified the 
Fourteenth Amendment on October 8, 1869. This session 
passed no school laws and the establishment of the public 
school system was deferred until after readmission. Full 
statehood status was regained on January 26,1870. 16 Stat. 
62. Six months later, on June 11th, the General Assembly 
established a “ uniform system of schools”  in which sepa­
rate schools were required.273 A specific constitutional 
mandate for segregated277 schools, however, did not appear 
until 1902.

M ississippi.

Mississippi followed the general pattern of the former 
seceded states. The Constitutional Convention of 1868, 
adopted an education article which made no mention of 
race or racial separation.278 At least two unsuccessful

272 Id ., at 333.
273 Id., at 335-40.
274 A ddress of the  Conservative M embers of the  L ate 

State Convention to the V oters of V irginia (186b).
275 D abn ey , U niversal Education in tP e South 143-44 

(1936).
27(1 Ya. Acts 1869-70. c. 259 § 47. p. 402.
277 Y a . Const. 1902, Art. IX  § 140.
278 Miss. Const. 1868, Art. VIII.



154

attempts were also made in the Convention to require 
segregated schools.279 280

While the convention journal does not specifically indi­
cate that the Fourteenth Amendment was raised as an 
objection to segregated schools, the convention had passed 
a resolution which declared that:

. the paramount political object . . .  is the 
restoration or reconstruction of our government 
upon a truly loyal and national basis, or a basis 
which will secure liberty and equality before the law, 
to all men, regardless of race, color or previous 
conditions. ”  289

The convention also framed a Bill of Rights which required 
all public conveyances to accord all persons the same 
rights,281 and it refused to adopt an article forbidding inter­
marriage.282

The next legislature convened in January, 1870, ratified 
the Fourteenth and Fifteenth Amendments, repealed all 
laws relative to Negroes in the Code of 1857, as amended 
by the Black Code of 1865, and indicated that it intended 
to remove all laws “ which in any manner recognize any 
natural difference or distinction between citizens and in­
habitants of the state.”  283

The Constitution and actions of the legislature proved 
acceptable to Congress, and Mississippi was restored to the 
Union on February 23, 1870. 16 Stat. 77. It was not until 
1878 that Mississippi passed a law requiring segregated

279 Journal of th e  M ississippi Constitutional Convention 
of 1868, pp. 316-18, 479-80 (1868).

280 Id, at 123.
281 Id. at 4 7 ; Miss. Const. 1868, Art I, § 24.
282 Journal of the  M ississippi Constitutional Convention 

of 1868, pp. 199, 212 (1868).
283 Garner, R econstruction in  M ississippi 285 (1901).



155

schools ;284 and it was still later when the Constitution was 
altered to reiterate this requirement.285 *

T en n essee .

Tennessee, although a member state in the late Con­
federacy, was not subjected to the requirements of the 
First Reconstruction Act, inasmuch as it had promptly 
ratified the Fourteenth Amendment and had been read­
mitted prior to the passage of that Act. Nevertheless, 
this state likewise reentered the Union with compulsory 
racial segregation absent from its constitution and statutory 
provisions on public schools. Readmission was under the 
Constitution of 1834, inasmuch as the Constitutional Con­
vention of 1865 merely amended it to abrogate slavery and 
authorize the general assembly to determine the qualifica­
tions of the exercise of the elective franchise.288 * The 
education article in this constitution merely required the 
legislature to encourage and support common schools “ for 
the benefit of all the people”  in the state.287 The first law 
providing for tax supported schools, on its face, also made 
no racial distinction.288 The next law, however, prohibited 
compulsory integrated schools.288 Contemporary federal

-8-1 Miss. Laws 1878, p. 103.
285 Miss. Const. 1890, Art. IX, § 2.
280 T e n n . Const. 1834 as amended by §§ 1 and 9 of “ Schedule” 

ratified February 22, 1865. In conformity with the Schedule’s di­
rective the legislature enacted that Negroes could exercise and pursue 
all types of employment and business under the laws applicable to 
white persons, Tenn. Acts. 1865-66, c. 15 ; that Negroes were compe­
tent witnesses, Id ., c. 18; and that persons of color henceforth had 
the same rights in courts, contracts and property as white persons 
except that Negroes could not serve on juries and that this act “ shall 
not be construed as to require the education of white and colored 
children in the same school.”  Id., c. 40, § 4.

287 T e n n . Const. 1834, Art. XI § 10.
288 Tenn. Acts. 1853-54, c. 81.
288 Tenn. Acts 1865-66, c. 40, § 4.



156

authorities noted that ante-bellum practice apparently had 
restricted the benefits of the school system to white children; 
but approved these provisions because, in sum, they pro­
vided a sufficient guarantee for the support and enjoyment 
of common schools for the equal benefit of all the people 
without distinction on the basis of race or color.290

The Governor convened the legislature in special session 
on July 4, 1866 to consider the Fourteenth Amendment. In 
urging its adoption, he summarized Section 1, and said 
that its practical effect was to protect the civil rights of 
Negroes and to “ prevent unjust and oppressive discrimina­
tion”  in the exercise of these citizenship rights.291 A joint 
resolution to ratify was introduced in the upper house; 
and a resolution to amend it with a proviso that the pro­
posed Amendment should not be construed to confer upon 
a person of color rights to vote, to hold office, to sit on juries 
or to intermarry with whites or to ‘ ‘ prevent any state from 
enacting and enforcing such laws ’ ’ was voted down.292 Then 
the Senate approved the joint resolution and the House 
concurred.293

After ratification, a group in the lower house formally 
protested its confirmation of the Amendment on the ground 
that it invaded state rights ‘ ‘ and obliterates all distinctions 
in regard to races, except Indians not taxed. ”  294 A similar 
protest was filed in the upper house.295 Such of the debates 
as were reported in the press indicate that the legislators 
understood the Amendment to force absolute equality 296 and 
that under the inhibitions of Section 1 “ distinctions in

290 Rep. U. S. Commr. Educ. 1867-68, 101 (18 ).
291 Tenn. House J., Called Sess. 3, 26-27 (1866) ; Tenn. Sen. J., 

Called Sess. 8 (1866 ).
292 Tenn. Sen. J., Called Sess. 26 (1866).
293 Id. at p. 24; Tenn. House J., Called Sess. 24 (1866).
294 Tenn. House J., Called Sess. 38 (1866).
296 Tenn. Sen. J., Called Sess. 41-42 (1866).
295 Nashville Dispatch, July 12, 1866.



157

schools cannot be made, and the same privileges the one has 
cannot be denied the other. . . , ” 297

Tennessee was readmitted July 24, 1866. 15 Stat. 708- 
711. After readmission, a school law was passed on March 
5, 1867 whereby boards of education were “ authorized and 
required to establish . . .  special schools for colored children, 
when the whole number by enumeration exceeds twenty- 
five.” 298 It also provided for the discontinuance of these 
separate schools when the enrollment fell below fifteen. 
The law, however, did not forbid lion-segregated schools. 
But it was repealed in 1869 and replaced with a require­
ment that racial separation in schools be observed without 
exception.299 Finally, the constitution was amended in 1870 
to secure the same result.300

In summary, therefore, as to these eleven states the 
evidence clearly reveals that the Fourteenth Amendment 
was understood as prohibiting color distinctions in public 
schools.

B. The Majority of the Twenty-two Union States 
Ratifying the 14th Amendment Understood that 
it Forbade Compulsory Segregation in Public 
Schools.

Other than the states already treated, twenty-six Union 
States considered the Amendment. Twenty-two of them 
ratified it. The evidence adduced here is of a somewhat less 
uniform character than that from the states which formed 
the late Confederacy for the simple reason that the legis­
latures in the North were unfettered by any congressional 
surveillance, and they did not experience the imperative 
necessity of re-examining their constitutions and laws at 
the time the proposed Fourteenth Amendment was con-

297 Id ., July 25, 1866.
298 Tenn. Laws 1867, c. 27, § 17.
299 Term. Laws 1870, c. 33, §4.
300 T e n n . Const. 1870, Art. XI, §12.



158

sidered by them. Thus, it is to be expected that some of 
these legislatures deferred attuning their school laws with 
the keynote of the Amendment until several years after it 
had become the law of the land. In other states, the legis­
latures adjusted their school laws almost simultaneously 
with their ratification of the Amendment. Still others, 
because existing laws and practices conformed with their 
basic understanding with respect to the impact of the 
Amendment, were not required to act. In the end, never­
theless, we submit that the overwhelming majority of the 
Union States ratified or did not ratify the Fourteenth 
Amendment with an understanding or contemplation that it 
commanded them to refrain from compelling segregated 
schools and obliged them to conform their school laws to 
assure consistency with such an understanding.

W est V ir g in ia  an d  M issou ri.

West Virginia, a state created during the Civil War 
when forty western counties refused to follow Virginia 
down the road to secession, and Missouri, a former slave­
holding state comprised the small minority of states which 
ratified the Fourteenth Amendment and perpetuated laws 
requiring segregated schools without any subsequent enact­
ment consistent with a discernment that such laws and the 
Amendment were incompatible.

Both states required separate schools for the two races 
prior to the submission of the Amendment.801 These laws 
were continued after the Amendment was proclaimed as 
ratified; 802 and both states subsequently strengthened the 
requirement of separate schools in the 1870’s by amending 
their constitutions to specifically proscribe racial integra­
tion in public schools.808 301 302 *

301 W. Va. Laws 1865, p. 54; Mo. Laws 1864, p. 126.
302 W . Va. Laws 1867, c. 98; W . Va. Laws 1871, p. 206; Mo. 

Laws 1868, p. 170; Mo. Laws 1869, p. 86.
3 0 3 w. V a . Const. 1872, Art. XII, § 8 ; Mo. Const. 1875, 

Art. IX.



159

T h e  N ew  E n gland  S tates .

Segregated schools also existed in some of the strongly 
abolitionist New England states prior to their consideration 
and ratification of the Amendment. But their reaction 
to the prohibitions of Section 1 was directly contrary to 
the course taken in West Virginia and Missouri.

In Connecticut, prior to the adoption of the Amendment, 
racial segregation was not required by state law but segre­
gated schools were required in some cities and communities, 
e.g., in Hartford pursuant to an ordinance enacted in 1867 
and in New Haven by administrative regulation.304 305 * On 
August 1, 1868, four days after the Amendment was pro­
claimed, however, the legislature expressly forbade sepa­
rate schools.303 Interestingly, during the course of debate 
on this bill, amendments which would have required segre­
gation or permitted separate “ equal”  schools were intro­
duced and rejected.300

Similarly, racial separation in schools was never re­
quired by the constitution or laws of Rhode Island, but 
segregated schools existed at least in Providence, Newport 
and Bristol.307 Here, too, the same legislature which

304 M orse, T he D evelopment of F ree Schools in  th e  U nited 
States as I llustrated by Connecticut and M ichigan  127, 144, 
192 (1918); W arner, N ew H aven N egroes 34, 71-72 (1940).

305 Conn. Acts 1866-68, p. 206. See Conn. House J. 410 
(1866); Conn. Sen. J. 374 (1866).

300 Conn. Sen. J. 247-48 (1868); Conn. House J. 595 (1868). 
See New Haven Evening Register, June 17, 1868.

307 Bartlett, F rom Slave to Citizen , c. 6 passim, (unpub. 
ms., pub. expected in Dec. 1953). See Ammons v. School Dist. 
No. 5, 7 R. I. 596 (1864).



1 6 0

ratified the Amendment enacted a law prohibiting racial 
segregation in public schools.308

In Maine, there was no racial separation in public schools 
prior to the adoption of the Amendment.309 However, the 
leading supporter of ratification extolled in the broadest 
terms its equality provisions and indicated that the pro­
ponents expected it to compel in the other states the same 
equality in civil and political rights as existed in Maine, 
itself.310

Massachusetts too, had already made unlawful any 
racial segregation in schools prior to the submission of the 
Amendment.311 Thus, since Massachusetts had already 
considered state required racial segregation completely 
inconsistent with a system of laws and government which 
treats all persons alike irrespective of color,312 there was

308 R. I. Laws 1866, c. 609.
The Committee on Education recommended passage of this act, 

saying: “ The great events of the time are, also, all in favor of the
elevation of the colored man. They are all tending to merge the 
distinctions of race and of class in the common brotherhood of 
humanity. They have already declared the Negro and the white 
man to be equal before the law; and the privileges here asked for by 
these petitioners, are simply a necessary result of this recognized 
equality.”  It went on to say, “ We have no right to withhold it from 
him in any case” , and asked, “ With what consistency can we demand 
that these colored people shall be equal before the law in other states 
or the territories, while we, ourselves, deprive them of one of their 
most important civil rights?” Report of Committee on Education, 
Pub. Doc. No. 4 (1896).

300 See Chadbourne, A  H istory of Education in  M aine 
(1936).

310 Speech of Senator Crosby in the Maine Senate, January 16, 
1867, reported in Kennebec Journal, January 22, 1867, p. 1.

311 Mass. Acts & Res. 1854-1855, p. 650; Mass. Acts & Res. 
1864-1865, pp. 674-75.

312 This was precisely the fundamental proposition underlying 
the enactment of the Act of 1855 prohibiting racial segregation in 
public schools. Report of the Committee on Education, Mass. 
House Doc. No. 167, March 17, 1855.



1 6 1

no subsequent legislative action interpretative of the impact 
of the Amendment on segregation.

The deliberations of the legislature on the proposed 
Amendment opened with its reference to the body by the 
governor. He recommended ratification and his speech 
indicates that he understood Section 1 of the Amendment 
to be a reinforcement of the Civil Rights Act of 1866 and 
observed: “ Whatever reasons existed at the time for the 
enactment of that bill, apply to the incorporation of its 
provisions into the state law.” 313 Surprisingly, strong 
opposition to ratification developed. A majority of the 
joint committee recommended rejection on the ground that 
the proposed Amendment neither specifically guaranteed 
Negro suffrage nor added anything to what was already 
in the constitution “ possibly excepting the last clause”  of 
Section 1. Of this, is concluded: 314 315

“ The denial by any state to any person within its 
jurisdiction, of the equal protection of the laws, would 
be a flagrant perversion of the guarantees of personal 
rights. . . . [But] such denial would be equally 
possible and probable hereafter, in spite of an 
indefinite reiteration of these guarantees by new 
amendments. ’ ’

The minority reported that:3,5
“ Without entering into any argument upon the merits 
of the amendment, they would express the opinion 
that its ratification is extremely important in the 
present condition of national affairs.”

When these reports were presented in the lower house 
of the legislature, a motion was passed to substitute the

313 Mass. Acts and Res. 1867, pp. 789, 820; Boston Daily Adver­
tiser, January 5, 1867, Sat. Supp.

314 Mass. House Doc. 149, pp. 23-24 (1867).
315 Id ., at 25.



1 6 2

minority report.316 Suffrage had claimed much of the 
strident debate on the motion. But a speech of one of the 
last members to speak for the motion was reported as 
follows: 317

“ To the first article of this amendment, there had 
been no objection brought by those who favored 
rejection. . . . The speaker felt that this was a most 
important article; by it the question of equal rights 
was taken from the supreme courts of the States 
and given to the Supreme Court of the United States 
for decision; the adoption of the article was the 
greatest movement that the country had made toward 
centralization, and was a serious and most important 
step. This was taken solely for the reason of obtain­
ing protection for the colored people of the South; 
the white men who do not need this article and do 
not like it, sacrifice some of their rights for the pur­
pose of aiding the blacks.”

The upper house considered the motion several days later, 
re-echoed the theme of the speeches previously made in 
the lower house, and voted for ratification.318

The New Hampshire legislature took up the proposed 
Amendment in June of 1866. The governor’s message 
urged ratification but its brief comment was not reveal­
ing.319 The majority report of the house committee with 
respect to the Amendment merely offered a resolution to 
modify.320 But the minority reported a number of reasons

316 Boston Daily Advertiser, March 13, 1867, p. 2 ; Ibid., March 
14, 1867, p. 1.

317 Id ., March 14, 1867, p. 1 (Speech of Richard Henry Dana,
Jr-)-

318 Mass. Acts and Res. 1867, p. 787; Mass. Leg. Doc. Sen. Doc. 
No. 25 (1867) ; Boston Daily Advertiser, March 21, 1867, p. 1.

319 N. H. House J. 137 (1866).
329 Ibid., p. 174.



163

for rejection which, inter alia, criticized section 1 on the 
grounds of ambiguity and furthermore: 821

“ Because said amendment is a dangerous in­
fringement upon the rights and independence of 
all the states, north as well as south, assuming as it 
does, control their legislation in matters purely local 
in their character, and impose disabilities upon them 
for regulating, in their own way [such matters].’ ’

The same set of objections was presented by a minority of 
the special committee of the upper house.822 Both chambers 
voted for ratification, however, within a month after the 
Amendment was offered to the state.828

Laws governing public schools in New Hampshire appear 
to have never been qualified on the basis of race or color 
at any time after its organic law obligated the legislature 
to stimulate public education.824 Similarly, Vermont seems 
to have no history of segregated schools. Neither did its 
laws sanction such a policy.423 When the legislature con­
vened in 1866, the Governor’s opening message discussed 
the proposed Fourteenth Amendment at some length. He 
urged that it be ratified to secure ‘ ‘ equal rights and impar­
tial liberty’ ’, otherwise a small number of whites in the 
South and the entire colored race would be left unprotected. 
In concluding, he said Vermont welcomed “ such a re­
organization of the rebellious communities, as would have 
given the people, white and black, the equal civil and 
political rights secured to the people of the State, by our 
Bill of Rights and Constitution, and under which peace, 321 322 323 * *

321 Id. at 176.
322 N. H. Sen. J. 70 (1866).
323 7<f. at 94, N. H. House J. 231-33 (1866).

N. H. Const. 1792, § L X X X III.
;t25 V t . Const. 1777, c. II, § X X X IX ; V t . Const. 1786, c. II, 

§ X X X V III ; V t . Const. 1793, c. II, § 41. See Report of the In­
diana Department of Public Instruction 23-28 (1867-68).



164

order, civilization, education, contentment, Christianity and 
liberty have shed their benign and blessed influence alike 
upon every home and household in our beloved Common­
wealth.” 3-6 Thereupon, both houses routinely voted for 
ratification.326 327

T h e  M iddle A t l a n t ic  S tates .

Three Mid-Atlantic States, New York, New Jersey and 
Pennsylvania ratified the Amendment. The Pennsylvania 
evidence is in some detail because it was one of the few 
states to preserve the full discussions and debates of its 
legislature. Furthermore, its statutes, previous to the 
adoption of the Amendment, authorized segregation in 
schools; 328 and public carriers had regulations which ex­
cluded or segregated Negroes. See West Chester <& Phila, 
R. Co. v. Miles, 5 Smith (55 Pa.) 209 (1867).

On January 2,1867, the Governor transmitted the Four­
teenth Amendment to the Legislature. He called for its 
adoption primarily upon political grounds but strenuously 
urged that every citizen of the United States had certain 
rights that no state had a right to abridge and the proposed 
Amendment asserted “ these vital principles in an authori­
tative manner, and this is done in the first clause of the 
proposed amendments [sic].” 329

The resolution recommending ratification was intro­
duced in the Pennsylvania Senate by its floor leader. He 
urged that one of the reasons why it had to be adopted 
was because Mississippi had enacted a law requiring segre­
gation on railroads and the Amendment was necessary to

326 Vt. Sen. J. 28 (1866) ; Vt. House J. 33 (1866). (Emphasis 
added.)

327 Vt. House J. 139 (1866) ; Vt. Sen. J. 75 (1866).
328 Act of May 8, 1854, Pa. L. 617 § 24.
323 Pa. Sen. J. 16 (1867).



165

overcome all state legislation of this character.330 In sum­
mary of his concept of the purpose of section 1, he said:

“ The South must be fenced in by a system of positive, 
strong, just legislation. The lack of this has wrought 
her present ruin; her future renovation can come 
only through pure and equitable law; lawr restraining 
the vicious and protecting the innocent, making all 
castes and colors equal before its solemn bar, that, 
sir, is the sine qua non. . . . ”

The pith of the speeches of both the proponents and 
opponents of ratification are as follows:

Senator Bingham, a leading supporter of the resolution, 
noted that “ it has been only a question of time how soon 
all legal distinctions will be wiped out.” 331

Another announced, “ I shall vote for it with satisfaction 
for my own conscience and gratitude to Congress for 
squarely meeting the universal demand of the loyal states 
to destroy all legal caste within our borders.” 332

The leading opponent of ratification interpreted the 
Amendment as follows:333

“ By the first section it is intended to destroy every 
distinction founded upon a difference in the caste, 
nationality, race or color of persons . . . which has 
found its way into the laws of the Federal or State 
Governments which regulate the civil relations or 
rights of the people. No law shall be made or exe­
cuted which does not secure equal rights to all. 
In all matters of civil legislation and administration 
there shall be perfect equality in the advantages and 
securities guaranteed by each state to everyone here 
declared a citizen, without distinction of race or color, 
every one being equally entitled to demand from the

330 2 Pa. Leg. Rec., app., p. I l l  (1867).
331 Id. at XVI.
332 Id. at X X II (speech of Senator Taylor).
333 Id. at XLI (speech of Mr. Jenks).



1 6 6

state and state authorities full security in the enjoy­
ment of such advantages and securities.”  (Emphasis 
supplied).

The legislature ratified the Amendment on January 
17, 1867.334

About two weeks later, on February 5th, a bill was intro­
duced making it unlawful for public conveyances to ex­
clude or segregate Negroes.335 * In introducing this bill, its 
sponsor announced that the doctrine of equality before the 
law required the passage of this bill. Both he and another 
supporter of the bill pointed out that these practices were 
pursuant to carrier regulations and policies and had to be 
eradicated by legislative action. It was also pointed out 
that the bill did not effect social equality because that is 
regulated solely by the personal tastes of each individual.333 
The bill was overwhelmingly enacted into law the following 
month.337

The school law authorizing separate schools was not 
specifically repealed until 1881 when the legislature made it 
unlawful for any school official to make any distinction on 
account of race or color in students attending or seeking to 
attend any public school.338 *

It appears, however, that when the state constitution 
was amended in 1873, the 1854 school law was viewed as 
having been brought into conformity with the adoption of 
a provision for a school system “ wherein all children of 
this Commonwealth above the age of six years shall be 
educated. . . . ”  333 The Secretary of State, official reporter

334 Pa. Laws 1867, 1334.
335 2 Pa. Leg. Rec., app. p. L X X X IV  (1867).
338 Id. at pp. L X X X IV  et seq. (Remarks of Senators Lowery and 

Brown.)
337 Act of March 22, 1867, Pa. Laws 1867, pp. 38-39.
338 Act of June 8, 1881, Pa. L. 76. § 1. Pa. Laws 1881. p. 76.
333 P a . C o n s t . 1873, Art. X, § 1.



167

of the Convention, states particular attention was paid to 
“ that part which confers authority on the subject of educa­
tion.”  And he noted that the new article was formulated 
to conform with the policy of protest against all racial 
discrimination and, specifically, to remove the “ equivocal 
and indivious provision. ’ ’ 340 These purposes are further 
borne out when the sponsor of the 1881 bill stated: 341

“ In proposing the repeal of the act of 1854, which 
in terms would be prohibited by the present State 
and Federal Constitutions, it seems a matter of sur­
prise that an act so directly in conflict with the Four­
teenth and Fifteenth Amendments of the Constitu­
tion of the United States should have been permitted 
to have remained in the statute book until this time.”

New Jersey, as early as 1844, enacted general legisla­
tion for the establishment and support of a public school 
system “ for the equal benefit of all persons. . . . ”  342 In 
1850, special legislation was enacted which enabled Morris 
Township to establish a separate colored school district if 
the local town meeting voted to do so.343 The state super­
intendent of schools construed this act and concluded that 
it in combination with the earlier law of 1844 permitted any 
local school system to maintain separate schools provided 
both schools offered the same advantages and no child was 
excluded.344

The New Jersey Legislature convened in a special ses­
sion and hastily ratified the Amendment on September 11, 
1866.345 The dispatch with which this was done was made

340 J o r d a n , O f f i c i a l  C o n v e n t i o n  M a n u a l  44 (1874).
341 Pa. Sen. J. (entry dated May 26, 1881).
342 N. J. C o n s t . 1844, Art. IV § 7 (6 ) ; N. J. R e v . S t a t s ., c . 3 

(1847).
343 N. J. Laws 1850, pp. 63-64.
344 A n n u a l  R e p o r t  o f  t h e  S t a t e  S u p e r i n t e n d e n t  o f  S c h o o l s  

41-42, (1868).
345 N. J. Sen. J., Extra Sess., 1866, p. 14; M inutes of the  

A s s e m b l y , Extra Sess., 1866, p. 8.



1 6 8

a focal issue in the following elections. The Republicans 
broadly defended the Amendment as “ forbidding class 
legislation, or the subjecting of one class of people to 
burdens that are not equally laid upon all.”  340 * * * * * * The Demo­
crats more specifically contended that their candidates op­
posed the Amendment because they were “ against Negro 
suffrage and the attempt to mix negroes with workingmen’s 
children in public schools. ’ ’ 347 When the Republicans 
captured the governorship and elected a radical congres­
sional delegation, the Democrats captured the state legis­
lature and immediately proceeded to rescind New Jersey’s 
ratification.348

When the Republicans recaptured control of the legisla­
ture in 1870 the school law was amended to require “ a 
thorough and effective system of public schools for the 
instruction of all children. . . . ”  349 And this was later 
reinforced by an enactment which made it unlawful to 
exclude any child from any public school on account of 
color.350 As a result of this law, separate schools soon 
disappeared except in a few counties where Negro citizens 
generally accepted them. When Negroes chose not to ac­
cept these segregated schools the school authorities were 
required to admit them to the white schools pursuant to 
the prohibition of the 1881 school law.351

New York, like the other Middle-Atlantic states, had 
ante-bellum constitutions which merely authorized the legis-

340 Newark Daily Advertiser, October 25, 1866; Trenton State
Gazette, November 3, 1866.

347 Trenton Daily True American, November 3, 1866.
348 N. J. Sen. J. 198, 249, 356 (1868) ; Minutes of the Assembly;

309, 743 (1868). See K n a p p , N e w  J e r s e y  P o l it i c s  D u r i n g  t h e

P e r io d  o f  C i v i l  W a r  a n d  R e c o n s t r u c t i o n  167 (1924).
349 N. J. Laws 1874, p. 135.
350 N. J. Laws 1881, p. 186.
351 See Pierce v. Union Dist. School Trustees, 17 Vroom (46

N. J. L.) 76 (1884).



169

lature to establish a common school fund.352 There was 
never any general legislation on the subject of racial sepa­
ration in schools sharing in the common school fund. The 
legislature, however, granted charters to Brooklyn, Canan­
daigua, Buffalo and Albany which permitted these cities to 
maintain segregated schools as early as 1850.353 The Com­
mon School Act of 1864 was in the same vein. It only per­
mitted school boards in certain political subdivisions to 
establish and maintain segregated schools “ when the in­
habitants of any school district shall so determine, by resolu­
tion at any annual meeting called for that purpose, establish 
a separate school or separate schools for the instruction 
of such colored children. . . . ” 354 Communities exercising 
the option under this law comprised the exception rather 
than the rule.355 *

Shortly after New York ratified the Amendment,35U a 
constitutional convention was held and it adopted a new 
constitution which provided for free instruction of all per­
sons of school age.357 The convention approved a committee 
report which contained a ringing declaration that Negroes

352 N. Y. C o n s t . 1821, Art. V II ; N. Y. C o n s t . 1846, Art. IX.
353 N. Y. Laws 1850, c. 143; N. Y. Laws 1852, c. 291. See Dallas 

v. Fosdick, 50 How. Prac. 249 (1869) ; People v. Easton, 13 A b b . 
Prac. N. S. 159 (1872).

354 N. Y. Laws 1864, c. 555.
385 A n n u a l  R e p o r t  o f  t h e  S t a t e  S u p e r i n t e n d e n t  o f  P u b l i c  

I n s t r u c t i o n  131, 159, 163, 166, 170, 233, 323 (1866).
353 N. Y. Sen. J. 33 (1867); N. Y. Ass. J. 77 (1867). The 

Governor’s message upon transmission of the Amendment leaves little 
doubt that he considered it as a “ moderate proposition” containing 
“ just the conditions for safety and justice indispensible to a perma­
nent settlement.” N. Y. Sen. J. 6 (1867) ; N. Y. Ass. J. 13 (1867).

357 n  y . C o n s t . 1868, Art IX. See P r o c e e d in g s  a n d  D e b a t e s  
o f  t h e  C o n s t i t u t i o n a l  C o n v e n t i o n  o f  t h e  S t a t e  o f  N e w  Y o r k  
1867-68 (1868).



1 7 0

should have full equality in the enjoyment of all civil and 
political rights and privileges.358

Subsequently, in 1873, the legislature passed an “ Act 
to Provide for the Protection of Citizens in Their Civil 
and Public Eights. ’ ’ 359 The Act made it unlawful for any 
person to exclude any other person on the ground of race 
or color from the equal enjoyment of any place of public 
accommodation, place of public amusement, public convey­
ance, “ common schools and public instruction [sic] of 
learning.. . . ”  (emphasis supplied). It also annulled the use 
of the word “ white”  or any other discriminatory term in 
all existing laws, statutes, ordinances and regulations.330 
The New York Court of Appeals did not give vitality to 
this act in the case of People ex rel. King v. Gallagher, 92 
N. Y. 438 (1883). But cf. Railway Mail Association v. Corsi, 
326 U. S. 88.

T h e  W estern  R eserve S tates .

The five states in the Western Reserve all ratified the 
Fourteenth Amendment. Each of them had rather well 
established public school systems prior to the Civil War. 
In Ohio, the first public school legislation expressly denied

358 “ First. Strike out all discriminations based on color. Slavery, 
the vital source and only plausible ground of such invidious discrimi­
nation, being dead, not only in this State, but throughout the Union, 
as it is soon to be, we trust, throughout this hemisphere, we can 
imagine no tolerable excuse for perpetuating the existing proscription. 
Whites and blacks are required to render like obedience to our laws, 
and are punished in like measure for their violation. Whites and 
blacks are indiscriminately drafted and held to service to fill our 
State’s quotas in a war whereby the Republic was saved from dis­
ruption. W e trust that we are henceforth to deal with men according 
to their conduct, without regard to their color. If so, the fact should 
be embodied in the Const.”  D o c u m e n t s  o f  t h e  C o n v e n t i o n  o f  
t h e  S t a t e  o f  N e w  Y o r k , 1867-68, Doc. No. 15 (1868).

359 N. Y. Laws 1873, c. 186 § 1.
960 Id., §3.



171

Negroes the benefit of free schools.301 Twenty years later, 
in 1847, this act was amended to permit the maintenance of 
separate schools for colored children if the residents of a 
school district objected to their admission into the white 
schools.302 At its next session, the legislature repealed the 
provision in an earlier law that had prohibited the applica­
tion of taxes paid by white residents toward the support of 
colored schools.363 And in 1853 the school law was revised 
to require the allocation of public school funds in proportion 
to the number of children of school age regardless of 
color.304

Separate schools, however, were still maintained except 
in Cleveland, Oberlin and other northern cities despite the 
general feeling that this act had relaxed the stringent re­
strictions of the antecedent laws. Furthermore, the State 
Supreme Court held this law not to entitle colored chil­
dren, as of right, to admission into white schools. Van 
Camp v. Board of Education, 9 Ohio St. 406 (1859).

After ratification of the Amendment,305 the legislature 
did not immediately modify the schools laws. In fact, it did 
nothing until after the Ohio Supreme Court upheld com­
pulsory segregated schools in State ex rel. Games v. 
McCann, 21 Ohio St. 198 (1872). Then the legislature 
enacted a statute which permitted rather than required seg-

Ohio Laws 1828-29, p. 73.
aii2 Ohio Laws 1847-48, pp. 81-83.
*“» Ohio Laws 1848-49, pp. 17-18.
:i,i4 Ohio Laws 1852, p. 441.
3«5 Ohio Sen. j .  9 (1867); Ohio House J. 13 (1867). The 

Amendment was ratified within two days of its submission to the 
legislature by the Governor. He observed that the Amendment had 
four provisions; the first of which was “ the grant of power to the 
National Government to protect the citizens of the whole country 
. . . should any state attempt to oppress classes or individuals, or 
deprive them of equal protection of the laws . . .” Ohio Exec. Doc., 
Part I, 282 (1867).



172

regated schools.386 Later, it denied local school authorities 
the power to exercise their discretion in the premises.307 
By this act, all public schools were opened to all children 
without distinction on account of race or color. State v. 
Board of Education, 2 Ohio Cir. Ct. Rep. 557 (1887).

Indiana’s pre-Fourteenth Amendment school law pro­
vided for the support of public schools but exempted “ all 
Negroes and mulattoes”  from the assessment.366 * 368 This law 
was interpreted as excluding colored children from public 
schools wherever the parents of white children objected. 
Lewis v. Henley, 2 Ind. 332 (1850).

On January 11, 1867, Governor Morton submitted the 
Fourteenth Amendment to the legislature. His message 
urged ratification but suggested that schools should be pro­
vided for Negroes and that they be educated in separate 
schools to relieve any friction which could arise if they were 
required to be admitted to white schools.369 A resolution to 
ratify the Amendment was introduced on the same day and 
referred to a joint committee. Five days later the resolu­
tion was reported out favorably with a recommendation of 
prompt ratification.370 A minority report was made which 
objected to the Amendment primarily because it conferred 
civil and political equality upon Negroes, including the same 
rights that were then enjoyed by the white race.371

The resolution was adopted on the same day in the 
Senate.372 No speeches were made in support of the resolu­
tion in this chamber but two senators spoke at length against 
it.373 In the House, the main contention of the opponents 
was that the Amendment would impose Negro equality,374

366 Ohio Laws 1878, p. 513.
307 Ohio Laws 1887, p. 34.
383 Ind. Rev. Stats. 314 (1843).
309 Ind. Doc. J., Part I, p. 21 (1867).
370 Ind. House J. 101 (1867).
371 Id. at 102.
372 Ind. Sen. J. 79 (1867).
373 Brevier, Legislative Reports 44-45 (1867).
374 Id. at 79.



173

seat Negroes on juries, grant them suffrage and admit them 
into the white schools.875 The proponents only denied that 
the Amendment conferred suffrage.37'1 And the lower 
chamber adopted the resolution on January 23, 1867.375 376 377

Two years after ratification of the Fourteenth Amend­
ment, the legislature revised its law to require the organi­
zation of separate schools.373 The act also authorized the 
maintenance of non-segregated schools in areas where 
there were insufficient Negro children residing within a rea­
sonable distance to justify a separate school. In 1874, the 
compulsory segregation section of this law was declared 
valid in the case of Cory v. Carter, 48 Ind. 327 (1874).

The legislature, however, revised the school laws at its 
next session to permit (not require) segregated schools.373 * 
The revised law, furthermore, required that colored chil­
dren be admitted to the regular schools if a separate school 
was not maintained. This provision was applied in sus­
taining mixed schools in State v. Grubbs, 85 Ind. 213 (1883).

Illinois statutes never specifically required separate 
schools. But the ante-bellum school statute provided that 
school districts with Negro populations should allow these 
residents a portion of the school fund equal to the amount 
of taxes collected from them.380 As construed by the state 
superintendent of schools, this law was applied to require 
segregated schools.381

The Illinois legislature received the governor’s message 
endorsing ratification of the Fourteenth Amendment on

375 Id. at 80, 88-89, 90.
376 Id. at 90.
377 Ind. House J. 184 (1867).
378 Ind. Laws 1869, p. 41.
370 Ind. Laws 1877, p. 124.
380 111. Stats. 1858, p. 460.
381 S i x t h  B i e n n i a l  R e p o r t  o f  t h e  S u p e r i n t e n d e n t  o f  

P u b l i c  I n s t r u c t i o n  o f  t h e  S t a t e  o f  I l l i n o i s , 1865-66, pp. 27- 
29; 2 R e p o r t s  M a d e  t o  t h e  G e n e r a l  A s s e m b l y  a t  i t s  T w e n t y - 
F i f t h  S e s s i o n , pp. 35-37.



174

January 7, 1867. Both chambers then ratified it on the 
same day with virtually no discussion or debate.382 About 
one year later, in December 1869, Illinois called a constitu­
tional convention. It adopted the present organic law which 
provides for a free public school system for the education 
of “ all children’ ’.383 This provision stems from a resolu­
tion in which the convention directed the Education Com­
mittee to submit an article which would call for the estab­
lishment of a public school system for the education of 
every “ susceptible child—without regard to color or previ­
ous condition’ ’.384 Furthermore, the convention rejected 
two resolutions which would have directed the establish­
ment of a compulsory segregated school system.385

Of all the states of the Western Reserve, Michigan was 
most deeply affected by the tide of abolitionism which 
swept this section during the pre-war years. By its Con­
stitution of 1850 the word “ white’ ’ was eliminated from the 
section establishing voting qualifications 386 and slavery was 
declared intolerable.387 Neither this constitution nor the 
general law of the state recognized any racial distinctions 
in the enjoyment of public education. But as early as 1842 
and as late as 1866, special statutes were passed granting- 
school boards in certain of the larger cities discretionary 
power to regulate the apportionment of school funds and 
distribution of pupils among the several schools under their

382 111. House J. 40, 154 (1867) ; 111. Sen. J. 40, 76 (1867).
383 III. C o n s t . 1870, Art. VIII, § 1.
384 J o u r n a l  o f  t h e  C o n s t i t u t i o n a l  C o n v e n t i o n  o f  t h e  

S t a t e  o f  I l l i n o i s , Convened a t Springfield, December 13, 1869, 
p. 234.

385 Id. at 429-431, 860-861.
386 Compare M i c h . C o n s t . 1850, Art. VII, § 1 with M i c h . 

C o n s t . 1835. Art. II, § 1.
387 Art. X V III, § 11.



jurisdiction. Pursuant to this authority some school boards, 
e.g., in Detroit and Jackson, established separate schools.388

The Amendment was submitted to the legislature on 
January 6, 1867. On January 12tli, a resolution was adopted 
in the Senate instructing the Committee on Public Instruc­
tion to report out a bill “ to prevent the exclusion of chil­
dren from the primary or graded or other public schools 
of this state on account of race or color.”  And four days 
later the general school law was amended to provide that 
“ all residents of any district shall have an equal right to 
attend any school therein...  . ”  389 390 The Fourteenth Amend­
ment was subsequently ratified on February 16, 1867.300

The legislative record of Michigan during the next sev­
eral years is replete with more blows against segregation 
and other distinctions based on race or color. In 1869, insur­
ance companies were prohibited from making any distinc­
tion between white and Negro insureds.391 The ban against 
interracial marriages was removed in 1883.392 Then in 
1885, the civil rights law was enacted prohibiting racial 
separation on public conveyances, in places of public accom­
modation, recreation, and amusement.393

388 See People ex rel. Workman v. Board of Education of Detroit, 
18 Mich. 400 (1869) for reference to these special statutes and notice 
of separate schools in these two cities. Since the decision in this 
case, there have been no segregated schools maintained by state 
authorities.

389 1 Mich. Laws 42 (1867); Mich. Acts 1867, Act 34 §28.
390 The journals of the Michigan legislature indicate that both 

houses promptly ratified the Amendment without reference to a 
committee. Mich. Sen. J. 125, 162 (1867); Mich. House J. 181 
(1867).

391 Mich. Acts 1869, Act 77 § 32. See Mich. Comp. Laws 
§7220 (1897).

892 Mich. Acts 1883. Act 23, p. 16.
393 Mich. Acts 1885. Act 130 §1.

§ 11759 (1897).
See Mich. Comp. Laws



176

Wisconsin, since 1848, provided for a public school 
system free to all children.394 Moreover, during the crucial 
years, its Negro population was insignificant—less than 
two-tenths of one percent,395 Thus, it seems obvious why 
segregation in schools or elsewhere never merited the atten­
tion of the legislature at the time of its ratification of the 
Amendment or thereafter.396

The Wisconsin legislature met on January 3, 1867 and 
was addressed by the Governor. His speech suggests that 
in his thinking the Fourteenth Amendment which he asked 
them to ratify was designed to apply solely to the South 
and required that “ they must assent to the proposed amend­
ment with all of its guarantees, securing to all men equality 
before the law. . . . ’ ’ 397 A joint resolution was introduced 
to ratify the Amendment and referred to a committee of 
three, two of whom reported a recommendation to adopt. 
The report filed by the minority member condemned the 
Amendment at some length. “ The apparent object,”  to 
him, was to allow Congress to enfranchise Negroes, legis­
late generally on civil rights, “ give to the federal govern­
ment the supervision of all the social and domestic rela­
tions of the citizen of the state and to subordinate state 
governments to federal power.”  398

394 Wis. C o n s t . 1848, Art. X . § 3 ; Wis. R e v . S t a t s . Title VII 
(1849).

395 L e g a l  S t a t u s  o f  t h e  C o l o r e d  P o p u l a t i o n  i n  R e s p e c t  t o  
S c h o o l s  a n d  E d u c a t i o n , S p e c i a l  R e p o r t  o f  t h e  C o m m i s s i o n e r  
of E d u c a t i o n , 400 (1871).

396 Wis. Sen. J. 119, 149 (1867); Wis. Ass. J. 224-226, 393 
(1867). The entire series of Journals covering the War and Recon­
struction years shows but a single reference to color in connection 
with education. This was a proposal to amend an 1863 bill so as to 
limit certain educational privileges to children of “ white parentage” . 
The amendment failed and the m atter was never revived. Wis. 
Ass. J. 618 (1863).

397 Wis. Sen. J. 32 (1867) ; Wis. House J. 33 (1867).
398 Id. at 96, 98 et  s e q . (Report filed by Sen. Garrett T. Thorne).



177

It appears that this understanding of the Amendment 
was not disputed. Rather, one supporter of the Amend­
ment is reported as stating: “ If the states refuse to legis­
late as to give all men equal civil rights and equal protec­
tion before the laws, then, sir, there should be supervisory 
power to make them do that, and a consolidation of that 
kind will be a benefit instead of an injury.399 And, another 
answered: 400

“ We therefore need such a provision in the Constitu­
tion so that if the South discriminates against the 
blacks the United States courts can protect them. I 
know it is objected that this is an enlargement of the 
power of the United States Supreme Court. But it 
is a power given on the side of liberty—power to pro­
tect and not power to oppress. For the appeal will 
come up to this court from the aggrieved individual 
against the aggressing state. . . . ”

T h e  W estern  S tates .

Of the states west of the Mississippi which ratified the 
Amendment, Nebraska is quite significant because it was 
admitted to the Union during the life of the 39th Congress 
and conditions were imposed upon its admission which 
demonstrate that the Congress which prepared the Amend­
ment intended to eradicate all distinctions based upon race. 
Nebraska won statehood without having ratified the 
Amendment. But the enabling Act provided that ‘ ‘ this act 
shall take effect with the fundamental and perpetual condi­
tion that there shall be no abridgement or denial of the 
exercise of the elective franchise, or cmy other right, to any 
person by reason of race or color. . . . ”  Act of February 
9, 1867, ch. 9, sec. 3, 14 Stat. 377 (emphasis supplied). The 
Act, furthermore, required Nebraska to publicly proclaim

399 Wisconsin State Journal, Feb. 7, 1867 (Reporting speech of 
Assemblyman C. B. Thomas).

400Daily Wisconsin Union, Feb. 7, 1867 (Reporting speech of 
Assemblyman H. C. Hobart).



178

this fundamental condition “ as a part of the organization 
of this state.”

While the enabling Act was still being considered by 
Congress, the territorial legislature forthwith passed a “ Bill 
to remove all distinctions on account of race or color in our 
public schools” 401 since the existing school law restricting 
the enumeration of pupils to white youths 402 had hereto­
fore been administratively construed to exclude colored 
children from the public schools. This bill failed to enter 
the statute books for lack of gubernatorial endorsement.403

The same session of the legislature by an appropriate 
resolution recognized the enabling A ct’s ‘ ‘ fundamental con­
dition”  on February 20, 1867 and on March 1st Nebraska 
was proclaimed the 37th state. Two months later, a special 
session of the legislature was called to ratify the Amend­
ment and to enact legislation to “ render Nebraska second 
to no other state in the facilities offered to all her children, 
irrespective of sex or condition. . . . ”  404 The Amendment 
was ratified in June 1867,405 and the school law was amended 
to require the enumeration of “ all the children”  in the 
school census.406 The new school law did not in specific 
language prohibit segregation, but colored children entered 
the public schools on a non-segregated basis at the next 
school term in September, 1867.407 *

Another school law was enacted in 1869 which provided 
an increase in the taxes for the support of public schools

401 Neb. House J., 12th Terr. Sess. 99, 105 (1867). See Omaha 
Weekly Republican, January 25, 1867, p. 2 ; Id., February 8, 1867.

402 Neb. Comp. Laws 1855-65, pp. 92, 254, 560, 642 (1886).
403 M e s s a g e s  a n d  P r o c l a m a t i o n s  o f  t h e  G o v e r n o r s  o f  N e b ­

r a s k a . C o l l e c t e d  i n  P u b l i c a t i o n s  o f  t h e  N e b r a s k a  S t a t e  
H i s t o r i c a l  S o c i e t y , 249 (1942).

404 Id. at 274.
405 Neb. House J. 148 (1867) ; Neb. Sen. j .  174 (1867).
400 2 Neb. Comp. Laws 1866-77, p. 351 (1887).
407 See Nebraska City News, August 26, 1867, p. 3; Id., Sep­

tember 4, 1867, p. 3.



179

“ affording the advantages of a free education to all 
youth; ’ ’ 408 and thereafter no school law has contained any 
language describing the system of public schools operated 
by the state.

Prior to its ratification of the Amendment, Kansas, a 
loyal border state, had adopted a policy of permissive segre­
gation whereby boards of education were authorized, but 
not required, to establish separate schools.409 The legisla­
ture ratified the Amendment on January 16, 1867,410 and 
changed the school law on February 26th by an act which 
made it illegal for “ any”  school board to refuse to admit 
“ any”  child.411 In 1868, it reenacted the earlier permissive 
school segregation law.412 Subsequently, an 1876 revision 
of the school laws omitted any authorization for segrega­
tion in cities of the first class and specifically forbade segre­
gated schools in cities of the second class.413 The same 
session also passed a civil rights act which is still the law 
and proscribes any distinction on account of race or color 
in “ any state university, college, or other school of public 
instruction”  or in any licensed place of public accommoda­
tion or amusement, or on any means of public carriage.414 
In 1879, the legislature reenacted the law permitting racial

4us 2  Neb. Comp. Laws 1866-77, pp. 451, 453 (1887).
40H Kan. Laws 1862, c. 46, Art. 4 §§ 3, 18; Kan. Laws 1864, c. 67, 

§ 4; Kan. Laws 1865, c. 46, § 1.
410 The Amendment was ratified without reference to a committee 

within three days after it was submitted to the legislature. Kan. 
Sen. J . 43, 76, 128 (1867) ; Kan. House J. 62, 79 (1867).

411 Kan. Laws 1867, c. 125, § 1 ; K a n . G e n . S t a t s ., c. 92, § 1 
(1868). The punitive feature of this statute directed county super­
intendents to withhold school funds from any offending schools.

412 Kan. Gen. Stats., c. 18, Art. V  § 75. c. 19. Art. V § 57 (1868).
Kan. Laws 1876, 238.

414 Kan. Laws 1874, c. 49, §1. See K an . R e v . S t a t s . §21- 
2424 (1935).



180

separation in schools but limited it to cities of the first 
class.415 *

Minnesota ratified the Fourteenth Amendment on Janu­
ary 16, 1867.410 Its legislature was not obliged to contem­
plate whether the Amendment nullified segregated schools 
because such practices had been made a penal offense in 
1864.417 However, in submitting the Amendment to the 
legislature, the governor urged that its adoption was neces­
sary because of the failure of the former seceding states 
“ to reorganize their civil government on the basis of equal 
. . . rights, without distinction of color. . . , ” 418 In 1873, 
the legislature rephrased the school law so as to specifically 
prohibit segregated schools.419

In Nevada, the school law in existence prior to its con­
sideration of the Amendment excluded Negroes from public 
schools and prescribed a penalty against any school which 
opened its doors to such persons.420 However, the statute 
provided that school authorities might, if they deemed it 
advisable, establish a separate school for colored children 
and maintain it out of the general school fund. While the 
legislature took no affirmative action after it ratified the 
Amendment on January 22, 1867,421 it similarly remained

415 Kan. Laws 1879, c. 81, § 1. This is the current law in Kan­
sas. K a n . Rev. Stats. § 27-1724 (1935).

410 The governor laid the proposed Amendment before the legis­
lature with the observation that it would secure equal civil rights 
to all citizens and both houses voted at once to ratify the Amendment 
without further reference. Minn. Exec. Doc. 26 (1866); Minn. 
House J. 26 (1866) ; Minn. Sen. J. 22, 23 (1866).

41T Minn. Laws 1864, c. 4, § 1, amending Minn. Laws 1862, 
c. 1, § 33.

418 Minn. Exec. Docs. 25 (1866).
419 Minn. Stats., ch. 15 § 74 (1873).
420 Nev. Laws 1864-65, p. 426.
421 The governor presented the Amendment to the legislature 

with an admonition that they were expected to ratify it and the ratifi­
cation was accomplished three days later. The journals indicate 
virtually no opposition or advocacy of the Amendment. Nev. Sen. J. 
9, 47 (1867) ; Nev. Ass. J. 25 (1867).



181

inactive after the decision in State v. Duffy, 7 Nev. 342 
(1872), which vitiated the first section of the school law. 
There is no subsequent reference to the subject of separate 
schools in the statute books and the segregatory statute 
itself was dropped from subsequent compilations of laws.422

The Oregon evidence is singularly meager. There were 
no laws requiring or permitting racial separation in schools 
either prior or subsequent to ratification of the Amendment 
on September 9, 1866. What the ratifying legislature un­
derstood as to the force of the Amendment and the signifi­
cance of the abortive attempt to withdraw its ratification 
in 1868 on this subject is unavailable from the bare nota­
tions contained in the legislative journals.423 The contem­
porary newspapers are also barren of information on this 
point.424 What evidence there is, indicates that separate 
schools did exist at least in Portland as late as 1867 and 
that they were discontinued in 1871.425

Almost two years after the Amendment was submitted 
to the states, Iowa ratified on April 3, 1868.426 Neither the 
state constitution nor laws required or in any manner au-

422 See Nev. Comp. Laws (1929).
423 Ore. Sen. J. 25, 34-36 (1866) ; Id,, at 271-272 (1868) ; Ore. 

House J. 273 (1868) ; Ore. Laws 1868, 114; Id., “ Joint Resolu­
tions and Memorials” 13.

424 The Oregonian, the state’s leading newspaper, purportedly 
carried all the legislative happenings in full. See The Oregonian, 
September 14, 1866. None of its 1866 issues indicate more than 
that the legislature considered the Amendment dealt with “ equality” 
and that the primary controversy was with respect to suffrage. 
Ibid., September 21, 1866.

425 See R eynolds, P ortland P ublic Schools, 1875, 33 O re. 
H ist. Q. 344 (1932); W. P. A. A dult Education P roject, 
H istory of Education in  P ortland 34 (1937).

420 Ratification was almost perfunctorily effected. Iowa Sen. J. 
265 (1868) Iowa House J. 132 (1868).



thorized racial separation in schools at that time.427 In­
stances of exclusion and segregation were being quickly 
remedied without recourse to the courts.428 Where the 
courts were called upon, local practices of segregation in 
schools were never sustained as lawful. Clark v. School 
Directors, 24 Iowa 266 (1868); Smith v. Directors of Inde­
pendent Schools Dist., 40 Iowa 518 (1875); Dove v. Inde­
pendent School Dist., 41 Iowa 689 (1875). The state 
supreme court also forbade segregation by a common car­
rier in its dining facilities, predicating its decision squarely 
upon the Fourteenth Amendment. Coger v. N. W. Union 
Packet Co., 37 Iowa 145 (1873).

In sum, the legislatures in all of the Union States which 
ratified the Fourteenth Amendment, except three, under­
stood and contemplated that the Amendment proscribed 
State laws compelling segregation in public schools.

C. The Non-Ratifying States Understood that the 
Fourteenth Amendment Forbade Enforced 
Segregation in Public Schools.

Four states did not ratify the Amendment, three spe­
cifically withholding endorsement and the other being un­
able to arrive at any definitive position. Delaware, in the 
anomalous position of a former slave state which sided with 
the Union, rejected it on February 7, 1867 with a resolution 
which declared that “ this General Assembly believes the 
adoption of the said proposed amendment to the Constitu­
tion would have a tendency to destroy the rights of the 
States in their Sovereign capacity as states, would be an 
attempt to establish an equality not sanctioned by the laws

427 Iowa Const. 1857, Art. IX , § 12; Iowa Laws 1866, p. 158, 
reinforcing the Acts of 1860 and 1862 which required the instruction 
of all children without regard to race. S chaffter, T he Iowa 
C ivil R ights A ct, 14 Iowa L. R ev. 63, 64-65 (1928).

428 Dubuque Weekly Herald, January 30, 1867, p. 2; Des Moines 
Iowa State Register, January 29, 1868, p. 1; Id., February 19,
1868, p. 1.



183

of nature or God. . . 429 Again, in 1873, the state legis­
lators denounced

. . a l l  other measures intended or calculated to 
equalize or amalgamate the Negro race with the white 
race, politically or socially, and especially do they 
proclaim unceasing opposition to making Negroes 
eligible to public office, to sit on juries, and to their 
admission into public schools where white children 
attend, and to the admission on terms of equality with 
white people in the churches, public conveyances, 
places of amusement or hotels, and to any measure 
designed or having the effect to promote the equality 
of the Negro with the white man in any of the rela­
tions of life, or which may possibly conduce to such 
result.”  430

Then, shortly thereafter, the General Assembly in a series 
of discriminatory statutes demonstrated that it fully under­
stood that equality before the law demanded non-segrega­
tion. It passed laws permitting segregation in schools,431 
places of public accommodation, places of public amuse­
ment and on public carriers.432 Delaware, however, de­
ferred sanctioning compulsory racial separation in public 
schools until after this Court handed down the Plessy deci­
sion.433

M aryland.

Maryland was also a loyal former slave-holding state. 
It rejected the Amendment on March 23, 1867.434 The

429 13 Del. Laws 256. See Del. Sen. J. 76 (1867); Del. House
J. 88 (1867) for speech of Governor Saulsbury recommending 
rejection on the ground that it was a flagrant invasion of state 
rights.

430 Del. Laws 1871-73, pp.-686-87.
431 D el. R ev. Stats, c. 42 § 12 (1874) ; Del. Laws 1875, pp. 82- 

83; Del. Laws 1881, c. 362.
432 Del. Laws 1875-77, c. 194.
433 D el. Const. 1897, Art. X, § 2.
434 Md. Sen. J. 808 (1867) ; Md. House J. 1141 (1867).



184

establishment of universal free public education here coin­
cided with the Reconstruction Period. Although Maryland 
has always maintained a dual school system, it has never 
enacted a law specifically forbidding- racial integration in 
its public schools. Rather, separate and parallel provi­
sions were made for the education of white and colored chil­
dren.435 *

K e n t u c k y .

The third of the states which rejected the Amendment 
was Kentucky, a state with a slaveholding background and 
generally sympathetic with the South with regard to the 
status of Negroes although it did not secede. It was the 
first to refuse ratification: its rejection was enrolled on 
January 10, 1867.43e While Negroes were denied or 
severely limited in the enjoyment of many citizenship rights 
at that time, including exclusion from juries,437 the legisla­
ture was silent on the specific question of compulsory segre­
gated schools.438 439 Like its Maryland brothers, it passed 
two discrete series of laws, one for the benefit of white 
children and the other for colored children. But no definite 
compulsory education statute was enacted until 1904 433 
although the constitution had been previously amended so 
as to support such legislation.440

435 Md. Laws 1865, c. 160, tit. i-iv; Md. Rev. Code §§ 47, 60, 119 
(1861-67 Supp.) ; Md. Laws 1868, c. 407; Md. Laws 1870, c. 311; 
Md. Laws 1872, c. 377; Md. Rev. Code, tit. xvii §§ 95, 98 (1878).

43«Ky. House J. 60 (1867) ; Ky. Sen. J. 63 (1867).
437Ky. Laws 1865-66, pp. 38-39, 49-50, 68-69.
438 Ky. Laws 1869, c. 1634; 1 Ky. Laws 1869-70, pp. 113-127; 

Ky. Laws 1871-72, ch. 112; K y . Stats., c. 18 (1873); K y . Gen . 
Stats., c. 18, pp. 371 et seq. (1881).

439 Ky. Laws 1904, pp. 181-82.
440 K y . Const. 1891, § 187.



185

California.

California was the only state whose legislature con­
sidered the Amendment and yet did not reach an official 
stand on the matter.441 Before the Fourteenth Amend­
ment was proclaimed the law of the land, the legislature in 
1866, relaxed the pattern of compulsory segregation when 
the school law was revised to permit Negro children to enter 
“ white”  schools, provided a majority of the white parents 
did not object.442 * This provision survived changes made in 
the school laws in 1870 and 1872; and, in 1874, a bill to 
eliminate segregated schools led to the adoption of a law 
which required the admission of colored children “ into 
schools for white children”  if separate schools were not 
provided.448 Later in this same year the state supreme 
court upheld segregated schools despite the petitioner’s 
claim that this practice violated the Amendment. Ward v. 
Flood, 48 Cal. 36 (1874). The legislature then revised the 
school laws and eliminated the provisions which had been 
held to require separate schools for Negro children.444

441 The Committee on Federal Relations in the Assembly and 
Senate, respectively, recommended rejection and ratification of the 
Amendment and no further action was taken. Cal. Ass. J., 17th 
Sess., p. 611 (1867-68) ; Cal. Sen. J., 17th Sess., p. 676 (1867-68), 
p. 676. See F lack , T he A doption of the Fourteenth A mend­
ment 207 (1908).

442 Cal. Stats. 1866, p. 363. Purusant to this statute a number 
of “ white” schools admitted colored children without untoward inci­
dent. Cloud, E ducation in  California 44 (1952).

44» Cal. Stats. 1873-74, p. 97.
444 Cal. Stats. 1880, p. 48. See Wysinger v. Crookshank, 82 Cal. 

588 (1890). The laws segregating Chinese children remained on the 
books probably because it was the general impression that only dis­
criminatory laws aimed at Negroes were forbidden by the Four­
teenth Amendment. Debates of the California Constitutional Con­
vention of 1873, pp. 631, 642, 649 (1880).



186

The evidence from the non-ratifying states also indi­
cates that their legislatures understood or contemplated 
that the Fourteenth Amendment forbade legislation which 
enforced the separation of white and colored children in 
public schools.

CONCLUSIONS OF PART II

There is, therefore, considerable evidence and, we sub­
mit, conclusive evidence that the Congress which submitted 
and the state legislatures and conventions which consid­
ered the Fourteenth Amendment contemplated and under­
stood that it would proscribe all racial distinctions in law 
including segregation in public schools. A  part of this 
evidence consists of the political, social and legal theories 
which formed the background of the men who framed the 
Fourteenth Amendment and the Radical Republican ma­
jority in Congress at that time.

Congressional debates following the Civil War must be 
read and understood in the light of the equalitarian prin­
ciples of absolute and complete equality for all Americans 
as exemplified throughout the Abolitionist movement prior 
to the Civil War.

Many of the members of Congress, in debating the bill 
which became the Civil Rights Act of 1875, made it clear 
in no uncertain terms that it was generally understood in 
the 39th Congress that the Fourteenth Amendment was 
intended to prohibit all racial distinctions, including segre­
gation in public school systems.

Running throughout the 39th Congress was a determi­
nation of the Radical Republican majority to transform 
these equalitarian principles into federal statutory and 
constitutional law. They realized that these high prin­
ciples could not be achieved without effective federal legis­
lation. The infamous Black Codes were demonstrative 
proof that the southern states were determined to prevent 
the newly freed Negroes from escaping from an inferior



187

status even after the Thirteenth Amendment. The Radical 
Republican majority realized that in the status of American 
law at that time, the only way to achieve fulfillment of their 
determination to remove caste and racial distinctions from 
our law would be for them to effect a revolutionary change 
in the federal-state relationship.

After many drafting experiments, the Committee of 
Fifteen introduced in Congress the proposed amendment 
to the Constitution which was to become the Fourteenth 
Amendment. The broad and comprehensive scope of the 
bill was clearly set forth by Senator Howard, Chairman 
of the Judiciary Committee. An appraisal of the Con­
gressional debates during the period the Fourteenth 
Amendment was being considered show conclusively that 
in so far as section 1 was concerned, there could be no 
doubt that it was intended to not only destroy the validity 
of the existing Black Codes, but also to deprive the states 
of power to enact any future legislation which would be 
based upon class or caste distinctions. It is likewise clear 
that the Fourteenth Amendment was intended to be even 
more comprehensive than the scope of the original bill 
which, subsequently weakened by amendment, became the 
Civil Rights Act of 1866.

Throughout the debates in the 39th Congress and sub­
sequent Congresses, the framers of the Amendment, the 
Radical Republican majority in Congress, over and over 
again, made it clear that: (1) future Congresses might in 
the exercise of their power under section 5 take whatever 
action they might deem necessary to enforce the Amend­
ment; (2) that one of the purposes of the Amendment was 
to take away from future Congresses the power to diminish 
the rights intended to be protected by the Amendment; 
and (3) they at all times made it clear that the Amendment 
was meant to be self-executing and that the judiciary would 
have the authority to enforce the provisions of the Amend­
ment without further implementation by Congress. All of



188

the decisions of this Court, without exception, have recog­
nized this principle.

Other Congressional debates, including those on the 
readmission of certain states, the amnesty bills and other 
legislation give further evidence of the intent of Congress 
in regard to the broad scope of the Fourteenth Amend­
ment. The debates in Congress ou legislation which was 
later to become the Civil Rights Act of 1875 made it clear 
that efforts of states to set up segregated school systems 
violated the Fourteenth Amendment. These debates were 
more specific on the question of segregation in public educa­
tion because some states were already beginning to violate 
the Fourteenth Amendment by setting up segregated sys­
tems.

A study of the statements and actions of those responsi­
ble for state ratification of the Amendment remove any 
doubt as to their understanding that the Fourteenth Amend­
ment was intended to prohibit state imposed racial segre­
gation in public schools.

After addressing ourselves to questions 1 and 2 pro­
pounded by this Court, we find that the evidence not only 
supports but also compels the conclusions reached in Part 
One hereof. Wherefore, we respectfully submit, this Court 
should decide that the constitutional provisions and statutes 
involved in these cases are in violation of the Fourteenth 
Amendment and therefore unconstitutional.



189

PART THREE

This portion is directed to questions four and five of 
the Court’s Order:

4. Assuming it is decided that segregation in 
public schools violates the Fourteenth Amendment,

(a) would a decree necessarily follow provid­
ing that, within the limits set by normal geographic 
school districting, Negro children should forth­
with 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 segregated systems 
to a system not based on color distinctions?

5. On the assumption on which questions 4(a) 
and (b) are based, and assuming further that this 
Court will exercise its equity powers to the end de­
scribed in question 4(b),

(a) should this Court formulate detailed de­
crees 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 spe­
cific 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 general directions 
should the decrees of this Court include and what 
procedures should the courts of first instance fol­
low in arriving at the specific terms of more de­
tailed decrees?



190

I.

This Court should declare invalid the constitutional 
and statutory provisions here involved requiring segre­
gation in public schools. After careful consideration 
of all of the factors involved in transition from segre­
gated school systems to unsegregated school systems, 
appellants know of no reasons or considerations which 
would warrant postponement of the enforcement of 
appellants’ rights by this Court in the exercise of its 
equity powers.

The questions raised involve consideration of the pro­
priety of postponing relief in these cases, should the Court 
declare segregation in public schools impermissible under 
the Constitution. The basic difficulty presented is in the 
correlation between a grant of effective relief and tempo­
rary postponement. After carefully addressing ourselves 
to the problem, we find that difficulty insurmountable.

A. The Fourteenth Amendment requires that a 
decree be entered directing that appellants be 
admitted forthwith to public schools without 
distinction as to race or color.

“ It is fundamental that these cases concern rights which 
are personal and present” . Sweatt v. Painter, 339 U. S. 629, 
635; see also Sipuel v. Board of Regents, 332 U. S. 631, 633. 
These rights are personal because each appellant 445 is as­
serting his individual constitutional right to grow up in our 
democratic society without the impress of state-imposed 
racial segregation in the public schools. They are present 
because they will be irretrievably lost if their enjoyment is 
put off. The rights of the adult students in the Sipuel, 
Sweatt, and McLaurin cases required, this Court held, vin­
dication forthwith. A fortiori, this is true of the rights of

10.
445 As used herein “appellant”  includes the respondents in No.



191

children to a public education that they must obtain, if at 
all while they are children. It follows that appellants are 
entitled to be admitted forthwith to public schools without 
distinction as to race and color.

B. There is no equitable justification for postpone­
ment of appellants’ enjoyment of their rights.

Even if the Court should decide that enforcement of in­
dividual and personal constitutional rights may be post­
poned, consideration of the relevant factors discloses no 
equitable basis for delaying enforcement of appellants’ 
rights.

Appellants have no desire to set precise bounds to the 
reserve discretion of equity. They concede that, as a court 
of chancery, this Court has power in a proper case to mold 
its relief to individual circumstances in ways and to an ex­
tent which it is now unnecessary to define with entire pre­
cision. But the rights established by these appellants are 
far outside the classes as to which, whether for denial or 
delay, a “ balance of convenience”  has been or ought to be 
struck.

These infant appellants are asserting the most im­
portant secular claims that can be put forward by children, 
the claim to their full measure of the chance to learn and 
grow, and the inseparably connected but even more im­
portant claim to be treated as entire citizens of the society 
into which they have been born. We have discovered no 
case in which such rights, once established, have been post­
poned by a cautious calculation of conveniences. The 
nuisance cases, the sewage cases, the cases of the over­
hanging cornices, need not be distinguished. They distin­
guish themselves.

The Fourteenth Amendment can hardly have been in­
tended for enforcement at a pace geared down to the mores 
of the very states whose action it was designed to limit. 
The balance between the customs of the states and the per­
sonal rights of these appellants has been struck by that



192

Amendment. “  [A] court of equity is not justified in ignor­
ing that pronouncement under the guise of exercising equi­
table jurisdiction.”  Youngstown Co. v. Sawyer, 343 U. S. 
579, 610 (concurring opinion).

Affirming the decree of one of the few judges still carry­
ing the traditional title and power of Chancellor, the highest 
Court of Delaware epitomized equity in one of the cases now 
before this bar when it declared in Gebhart v. Belton, 91 A. 
2d 137, 149 that

“ To require the plaintiffs to wait another year 
under present conditions would be in effect partially 
to deny them that to which we have held they are en- 
entitled. ’ ’

Appellants, in the main, are obliged to speculate as to 
factors which might be urged to justify postponement of 
the enforcement of their rights. Hitherto, appellees have 
offered no justification for any such postponement. Instead 
they have sought to maintain a position which is, essen­
tially, that a state may continue governmentally enforced 
racism so long as the state government wills it.

In deciding whether sufficient reason exists for post­
poning the enjoyment of appellants’ rights, this Court is 
not resolving an issue which depends upon a mere pre­
ponderance of the evidence. It needs no citation of author­
ity to establish that the defendant in equity who asks the 
chancellor to go slow in upholding the vital rights of chil­
dren accruing to them under the Constitution, must make 
out an affirmative case of crushing conviction to sustain his 
plea for delay.

The problem of effective gradual adjustment cannot 
fairly arise in three of the five cases consolidated for argu­
ment. In the Kansas case, there Avas a frank concession on 
oral argument that elimination of segregation would not 
have serious consequences. In Delaware, court-compelled 
desegregation in this very case has already been accom­
plished. The case from the District of Columbia is here



193

on a dismissal of the complaint on motion. In the oral argu­
ment the counsel for respondents implied that he fore­
saw no difficulties in enforcing a decree which would abolish 
segregation. Surely it would be curious as well as a gra­
tuitous assumption that such a change cannot be expedi­
tiously handled in this nation’s capital. Cf. District of 
Columbia v. John R. Thompson Co., 346 U. S. 100.

We can, however, put out of the case what is not in dis­
pute. We concede that there may well be delays of a purely 
administrative nature involved in bringing about desegrega­
tion. Any injunction requires time for compliance and we 
do not ask the impossible. We strongly urge, however, 
that no reason has been suggested and none has been dis­
covered by us that would warrant denying appellants their 
full rights beyond the beginning of the next school year.

But we do not understand that the “ effective gradual 
adjustment”  mentioned in this Court’s fourth and fifth 
questions referred to such conceded necessities. We pro­
ceed then, to consider possible grounds that might be put 
forth as reasons for added delay, or for the postponement 
of relief to appellants.

It has been suggested that desegregation may bring 
about unemployment for Negro teachers. (Appellees’ 
Brief in Davis v. County School Board, p. 31; Transcript of 
Argument in the same case, p. 71) If this is more than a 
remote possibility, it undoubtedly can be offset by good faith 
efforts on the part of the responsible school boards.446 On 
the other hand, if appellees’ suggestion is based upon an 
unexpressed intention of discriminating against Negro 
teachers by wholesale firings, it is not even worthy of 
notice in a court of equity.

446 In view of the nationwide shortage of teachers, it is doubt­
ful that any unemployment would be more than transitory. See 
e.g., New York Times, August 19, 1953, 31 :8 ( S. M. Routhardt puts 
elementary teachers shortage at 116,000; August 24, 1953, 21:1 
(Comm. Thurston and NEA on shortage) ; 22 J. Neg. Ed. 95 (1953).



194

It has been bruited about that certain of the states in­
volved in this litigation will cease to support and perhaps 
even abolish their public school systems, if segregation is 
outlawed. (Davis v. County School Board, Transcript of 
Argument, pp. 69-70; Gebhart v. Belton, Transcript of Argu­
ment, p. 17; Briggs v. Eliott, Record on Appeal, p. 113.) 
We submit that such action is not permissible. Cf. Rice v. 
Elmore, 165 F. 2d 387 (CA 4th 1947), cert, denied, 333 U. S. 
875. Any such reckless threats cannot be relevant to a con­
sideration of effective “ gradual adjustment’ ’ ; they are 
based upon opposition to desegregation in any way, at any 
time.

Finally, there are hints and forebodings of trouble to 
come, ranging from hostility and deteriorated relations to 
actual violence. (Appellees’ brief in Briggs v. Eliott, 
p. 267; Appellees’ brief in Davis v. County School Board, 
p. 17) Obviously this Court will not be deterred by threats 
of unlawful action. Buchanan v. Warley, 245 U. S. 60, 81.

Moreover, there are powerful reasons to confirm the be­
lief that immediate desegregation will not have the un­
toward consequences anticipated. The states in question 
are inhabited in the main by law-abiding people who up to 
now have relied upon what they believe—erroneously, as 
we have demonstrated—to be the law. It cannot be pre­
sumed that they will not obey the law as expounded by this 
Court. Such evidence as there is lends no support to de­
fendants’ forebodings. Note, Grade School Segregation: 
The Latest Attach on Racial Discrimination, 61 Yale L. J. 
730, 739, 743 (1952).

A higher public interest than any yet urged by appellees 
is the need for the enforcement of constitutional rights 
fought for and won about a century ago. Public interest 
requires that racial distinctions proscribed by our Constitu­
tion be given the fullest protection. Survival of our coun­
try in the present international situation is inevitably tied 
to resolution of this domestic issue.



195

The greatest strength of our democracy grows out of its 
people working together as equals. Our public schools are 
“  [djesigned to serve as perhaps the most powerful agency 
for promoting cohesion among a heterogeneous democratic 
people.. . . ”  Mr. Justice Frankfurter, concurring in Illinois 
ex rel. McCollum v. Board of Education, 333 U. S. 206, 216- 
217.

C. Appellants are unable, in good faith, to sug­
gest terms for a decree which will secure effec­
tive gradual adjustment because no such decree 
will protect appellants’ rights.

Question 5 assumes that the Court, having decided that 
segregation in public schools violates the Fourteenth 
Amendment, will, nevertheless, in the exercise of its equity 
powers, permit an effective gradual adjustment from seg­
regated schools to systems not operated on the basis of 
color distinctions. This necessarily assumes further that 
reasons might be produced to justify consideration of post­
ponement of the enforcement of the present and personal 
rights here involved. As we have pointed out immediately 
hereinbefore we are unable to identify any such reason.

Appellants obviously are aware of the existence of 
segregated school systems throughout the South similar 
to those presently before this Court. Similarly, appel­
lants realize that the thrust of decisions in these cases 
may appear to present complex problems of adjustment 
because segregated schools have existed for nearly a cen­
tury in many areas of this country. Generalizations, how­
ever, as to the scope and character of the complexities 
which might arise from immediate enforcement of appel­
lants’ rights would be unwarranted. This is demonstrated 
in part by the fact that even in the five cases joined for 
hearing, there appears to be no uniformity in the extent 
of the task of adjustment from segregated to non-segre- 
gated schools.



196

Necessarily, consideration of the specific issues which 
decrees should reach on the basis of the assumptions of 
Question 5 likewise requires the assumption that reasons 
will be adduced to warrant consideration of postponement 
of enforcement of appellants’ rights.447

Though no cogent reasons were offered to support them, 
two suggestions of methods of postponement of relief to 
appellants were made to this Court in the original brief for 
the United States. The first of these was “ integration on a 
grade basis,”  i.e., to integrate the first grades immediately, 
and to continue such integration until completed as to all 
grades in the elementary schools (Brief, pp. 30-31). The 
second was integration “ on a school-by school”  basis 
(Brief, p. 31).

The first suggestion is intolerable. It would mean the 
fiat denial of the right of every appellant in these cases. 
The second plan is likewise impossible to defend because it 
would mean the deliberate denial of the rights of many of 
the plaintiffs. If desegregation is possible in some schools 
in a district, why not in all? Must some appellants’ rights 
be denied altogether so that others may be more conve­
niently protected?

447 It follows that there is no need for this Court to appoint a 
Master. Since repeal in 1948 of the 1805 statute, 28 U. S. C.. § 863 
(1946), forbidding the introduction of new evidence at an appellate 
level, there would appear to be no reason why such master could 
not be appointed. Certainly respected authorities have recom­
mended the practice of appellate courts’ taking evidence. See 1 W ig- 
m o r e , E v i d e n c e  41 (3d ed., 1940) ; P o u n d , A p p e l l a t e  P ro ­
c e d u r e  i n  C i v i l  C a s e s  pp. 303, 387 (1941); Note. 56 H a r v . L. 
R e v . 1313 (1943), and in other times and jurisdictions it has been 
respected practice. See S m i t h , A p p e a l s  o f  t h e  P r i v y  C o u n c i l  
f r o m  A m e r i c a n  P l a n t a t i o n s  310 (1950) ; Rules of the Supreme 
Court of Judicature, Order 58, Rules 1, 2; cf. New Mexico, Stat. 
1949, c. 168, § 19. However, taking of evidence by a Master is un­
doubtedly a departure from normal practice on appeal and it may 
result in loss of time to the prejudice of plaintiffs’ rights.



197

Whether any given plan for gradual adjustment would 
be effective would depend on the showing of reasons valid 
in equity for postponement of enforcement of appellants’ 
rights. In accordance with instructions of this Court we 
have addressed ourselves to all of the plans for gradual 
adjustment which we have been able to find. None would 
be effective. We recognize that the appellees, as school 
officials and state officers, might offer reasons for seeking 
postponement of the effect of decrees in these cases. There­
fore, we submit, affirmative answers to questions 4(b) and 5 
can come only from appellees since they alone can adduce 
reasons for postponement of enforcement of appellants’ 
rights.

In the absence of any such reasons the only specific issue 
which appellants can recommend to the Court that the de­
crees should reach is the substantive one presented here, 
namely, that appellees should be required in the future to 
discharge their obligations as state officers without draw­
ing distinctions based on race and color. Once this is done 
not only the local communities involved in these several 
cases, but communities throughout the South, would be left 
free to work out individual plans for conforming to the then 
established precedent free from the statutory requirement 
of rigid racial segregation.

In the very nature of the judicial process once a right 
is judicially declared proposals for postponement of the 
remedy must originate with the party desiring that post­
ponement.

We submit that it would be customary procedure for the 
appellees to first produce whatever reasons they might urge 
to justify postponement of relief. Appellants then would 
be in a position to advise the Court of their views with re­
spect to the matter.



1 9 8

Conclusion

Under the applicable decisions of this Court the state 
constitutional and statutory provisions herein involved are 
clearly unconstitutional. Moreover, the historical evidence 
surrounding the adoption, submission and ratification of the 
Fourteenth Amendment compels the conclusion that it was 
the intent, understanding and contemplation that the 
Amendment proscribed all state imposed racial restrictions. 
The Negro children in these cases are arbitrarily excluded 
from state public schools set apart for the dominant white 
groups. Such a pratice can only be continued on a theory 
that Negroes, qua Negroes, are inferior to all other Ameri­
cans. The constitutional and statutory provisions herein 
challenged cannot be upheld without a clear determination 
that Negroes are inferior and, therefore, must be segre­
gated from other human beings. Certainly, such a ruling 
would destroy the intent and purpose of the Fourteenth 
Amendment and the very equalitarian basis of our Govern­
ment.

W h erefore , it is respectfully submitted that the judg­
ments in cases No. 1, 2 and 4 should be reversed and 
the judgment in No. 10 should be affirmed on the grounds 
that the constitutional and statutory provisions involved 
in each of the cases violate the Fourteenth Amendment.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1, 

2, 4 and for Respondents in No. 10.

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES, 
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
DAVID E. PINSKY,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.



1 9 9

SUPPLEMENT

An Analysis of the Political, Social, and Legal Theories 
Underlying the Fourteenth Amendment

The first Section of the Fourteenth Amendment did not 
spring full blown from the brow of any individual pro­
ponent. Primitive natural rights theories and earlier con­
stitutional forms were the origins of its equal protection- 
due process-privileges and immunities trilogy. The occasion 
for the metamorphosis of moral premises to full-fledged 
constitutional status was the attack on the American sys­
tem of slavery. During the long antislavery crusade, the 
trilogy became a form of shorthand for, and the spearhead 
of, the whole of the argument against distinctions and 
caste based on race.

Section One of the Fourteenth Amendment thus marks 
the “ constitutionalization”  of an ethico-moral argument. 
The really decisive shifts occurred before the Civil War, 
and the synthesis was made, not by lawyers or judges, but 
by laymen. Doctrines originally worked out and propa­
gated by a dissident minority became, by 1866, the dominant 
constitutional theory of the country.

In both language and form, Section One was the distilla­
tion of basic constitutional and legal theories long under­
stood and voiced by leaders in a Congress upon which 
history had cast both the opportunity and the obligation 
to amend the Constitution to regulate relationships pro­
foundly altered by the abolition of slavery.1 None can 
doubt that the thrust of the Amendment was equalitarian 
and that it was adopted to wipe out the racial inequalities 
that were the legacies of that system. But beyond this, the 
majestic generalities of the Section can be seen to have

1 Graham, T h e E a rly  A n tisla very Backgrounds of the Fourteenth  
A m en d m en t, 1950 W i s .  L .  R e v . 479-507, 610-661, hereinafter cited 
E arly A n tisla very  Backgrounds.



200

evolved naturally and logically in the minds of the anti­
slavery generation.2

At the outset we point out that we do not set forth the 
arguments of pamphleteers, or even of lawyers or con­
gressmen, to justify the validity of their constitutional 
theories. We do not say that these theories were univer­
sally held, or deny that they were vigorously challenged. 
Nor do we urge that the pre-Civil War Constitution con­
tained the sweeping guarantees that the Abolitionists 
claimed for Negroes. These are beside our present point. 
What we do undertake in this section is illumination of the 
constitutional language— the moral and ethical opinions 
that were the matrix of the Amendment, the development 
under terriffic counter-pressures of the principal texts and 
forms, the meaning of “ equal protection”  and “ due 
process”  as understood and contemplated by those who 
wrote those phrases into the Amendment.

2 Basic monographs and articles on the Fourteenth Amendment 
and its major clauses are: 2 Crosskey, P olitics and th e  Con­
stitution  in  the  H istory of the  U nited States cc. 31-32 (1953); 
F lack , T he A doption of the  Fourteenth A m endm ent  (1908); 
T he Journals of th e  Joint Committee of F ifteen on R econ­
struction (Kendrick ed. 1914) ; tenBroek, T he  A ntislavery 
O rigins of th e  F ourteenth A mendm ent (1951) hereinafter cited 
A ntislavery O r ig in s ; W arsoff, E quality  and th e  L aw  (1938) ; 
Boudin, Truth and F iction A b o u t the F ou rteen th  A m en d m en t, 16 
N. Y. U. L. Q. R ev. 19 (1938) ; Fairman, D o e s  the Fourteenth  
A m en d m en t Incorporate the Bill of R ig h ts?  T h e Original U nder­
standing, 2 St a n . L. R ev. 5 (1949) ; Frank and Munro, T h e Original 
U nderstanding of “ Equal P rotection  of the L a w s,”  50 Col. L. R ev. 
131 (1950) ; Graham, T h e “ C onspiracy T h eo ry”  of the Fourteenth  
A m en d m en t, 47 Y ale L. J. 371, 48 Y ale L. J. 171 (1938) ; Mc­
Laughlin, T h e Court, T h e Corporation, and Conkling, 46 A m . H ist. 
R ev. 45 (1940).



2 0 1

1. The Declaration of The “Self-Evident Truths”

The roots of our American equalitarian ideal extend deep 
into the history of the western world. Philosophers of 
the seventeenth and eighteenth centuries produced an in­
tellectual climate in which the equality of man was a cen­
tral concept. Their beliefs rested upon the basic proposi­
tion that all men were endowed with certain natural rights, 
some of which were surrendered under the so-called “ social 
contract.”  The state, in return, guaranteed individual 
rights, and owed protection equally to all men. Thus, gov­
ernments existed, not to give, but to protect rights; and alle­
giance and protection were reciprocal. For his allegiance, 
the citizen was guaranteed his rights and the equal pro­
tection of the law.3

This doctrine was the core of the first great statement 
of American principles. To Jefferson and the other drafts­
men of the Declaration of Independence, it was “ self- 
evident”  that “ all men are created equal,”  and “ are 
endowed by their Creator with certain unalienable Rights,”  
among which are “ Life, Liberty and the pursuit of Happi­
ness,”  and that “ to secure these rights, Governments are 
instituted among Men, deriving their just powers from 
the consent of the governed.” 4

3 L ocke, S econd T reatise on Government c. 2 (1698). See 
also Becker, T he D eclaration of I ndependence (1926) ; S m it h , 
A merican  P hilosophy of E quality (1927) ; W right. A merican 
I nterpretations of N atural L aw  (1 9 3 1 ) ; Corwin, T h e “ H igher  
L a w ”  B ackground o f  A m erican Constitutional L a w , 42 H arv. L. R ev. 
149, 365 (1928) ; Graham, E arly A n tislavery Backgrounds, supra 
note 1, at 610-611; Hamilton, P rop erty  A ccording to L ock e, 41 
Y ale L. J. 864 (1932).

4 It is interesting to note in this context that Jefferson's original 
draft of the Declaration, accepted by Franklin and Adams, the other 
members of the sub-committee responsible for the drafting, contained 
severe strictures on the King because of the slave trade. See Becker, 
op. cit. supra note 3, at 212-213.



202

Abhorrence of arbitrariness— the central element of due 
process—and the ideal of a general and equal law—the 
core of equal protection—both were implicit in the Lockean- 
Jeffersonian premises. Slavery—with its theories of racial 
damnation, racial inferiority, and racial discrimination— 
was inherently repugnant to the American creed and the 
Christian ethic. This fact was being rapidly and increas­
ingly sensed. As men sensed it, they had to fit it into the 
only political theory they knew: Governments existed, not 
to give, but to protect human rights; allegiance and pro­
tection were reciprocal—i.e., ought to be reciprocal; rights 
and duties were correlative—i.e., had to be correlative if 
Americans ever were to live with their consciences and to 
justify their declared political faith.

Long before the Revolution, Quakers and Puritans 
attacked slavery as a violation of the social compact and 
Christian ethic.5 After 1776, Jefferson’s “ self-evident 
truths”  put a cutting edge on all such pleas—made them 
the broadswords in every attack. Idealists demanded that 
America live up to her Declaration. “ All men”  must 
mean all men. “ Unalienable Rights . . .  of Life, Liberty 
and the pursuit of Happiness”  must be given its full 
human, not merely a restricted racial, application. Race 
and color were arbitrary, insubstantial bases for accord 
or denial of natural, human rights. Sensitive leaders soon 
found themselves confronted with what Gunnar Myrdal

5 German Quakers of Pennsylvania had argued as early as 1688, 
“ Though they are black, we cannot conceive there is more liberty to 
have them slaves [than] . . .  to have other white ones. . . . We 
should do to all men like as we will be done ourselves, making no 
difference of what descent or colour they are. . . . Here is liberty 
of conscience, which is right and reasonable; here ought to be likewise 
liberty of body. . . . ”  M oore, N otes on th e  H istory of Slavery 
in  M assachusetts 75 (1866). In 1700, in his antislavery tract, 
T he Selling of Joseph, the great Puritan elder, Judge Samuel 
Sewall, declared, “ All men, as they are . . . Sons of Adam, are co-heirs, 
and have equal Right unto Liberty.” Id . at 83-87. See also Graham, 
E a rly A n tisla very  Backgrounds, supra note 1, at 614-615.



203

treated recently as An American D i l e m m a Having 
pledged their “ Lives . . . Fortunes, and sacred Honor”  to 
the causes of liberty and freedom, either Americans endeav­
ored to live up to their creed or stultified themselves before 
the world.

After the Revolution, the “ self-evident truths”  and the 
provisions of the state Bills of Rights were employed as 
weapons against slavery and against racial distinctions.6 7 
Down through the Civil War, moreover, the “ self-evident 
truths”  constituted precisely what Jefferson declared them 
to be—political axioms—except in the South after the 
invention of the cotton gin.8 They were on every tongue 
as rhetorical shorthand, and were popularly regarded as 
the marrow of the Constitution itself. In justifying one

6 2 vols. (1944).
7 In 1783, Chief Justice Cushing, pointing to the “ All men are 

born free and equal” clause of the Massachusetts Bill of Rights, 
declared that “ . . . slavery is inconsistent with our conduct and 
Constitution, and there can be no such thing as perpetual servitude 
of a rational creature.” M oore, op. cit. supra note 5, at 209-221. 
Four years later, Congress passed the Northwest Ordinance outlaw­
ing slavery in the territories. 2 T horpe, T he F ederal and S tate 
Constitutions, Colonial C harters, and O ther O rganic L aws 
957-962 (1909). Vermont effected abolition by constitutional clause; 
other northern states by prospective legislative action. Graham, E arly  
A n tisla very  Backgrounds, supra note 1, at 617.

8 While early southern leaders in Virginia accepted Jeffersonian 
concepts of natural rights, contract, and equality, later leaders and 
theorists defended the slave society on the basis of Greek concepts. 
Man had no rights save those created by the state. Men were inher­
ently unequal, and the end of the state was not equality but justice. 
Each man would have status in accordance with his ability. Such 
theorists posited the inherent inferiority of the Negro. Their theory 
was broad enough to justify slavery for any man, irrespective of race 
or color. See T he P ro-S lavery A rgument, A s M aintained  by 
the M ost D istinguished  W riters of the  Southern States 
(1853). See also 1 T he W orks of John  C. Calhoun  393-394, 6 
id. at 182-183 (Cralle ed. 1854-1855 ) ; S pa in , T he P olitical 
T heory of John  C. Calhoun  c. 8 (1951).



20 4

revolution, Jefferson no less than Locke had laid the 
groundwork for another. The dominating premise that 
governments were instituted for protection and that they 
derived their just powers from the consent of the governed 
had begun to make slavery, and with it race distinctions, 
untenable. What slowly took shape was an ethical inter­
pretation of American origins and destiny.

2. The Moral Suasion Campaign and Its Rejection

The Age of Enlightenment of the seventeenth and 
eighteenth centuries gave birth to a world-wide antislavery 
movement. A  wave of humanitarianism, embracing quests 
for abolition of slavery, suffrage for women, and penal, 
land, and other reforms, swept across the United States 
of the early nineteenth century. Because of its dramatic 
qualities, the American antislavery movement assumed 
even larger proportions and eventually overshadowed the 
other phases.9 Like them, it was based fundamentally on 
Judeo-Christian ethic and was formulated in terms of 
equalitarianism and natural rights.

The early antislavery movement was a campaign of 
moral suasion. Rational men appealed to other rational 
men to square precept with practice. Proponents of 
equality, who were by that definition opponents of slavery, 
sought to persuade slaveholders of the error of enslaving 
other men, i.e., of denying equality to those held as slaves. 
That campaign bore early fruit in Virginia, in the uplands 
of the Carolinas, and even in the deeper South. The appeal 
to the South ultimately broke on the hard rock of economic 
self-interest after invention of the cotton gin. Geogra­
phy and migrations tended further to sectionalize the 
institution. Quakers and Scotch-Irish yeomen from Vir­
ginia and the Carolinas, unable to arrest spread of a labor 
system they detested, and others from the deeper South, 
fled en masse, settling generally in Ohio and Indiana. There

9 N ye, F ettered F reedom 2, 10-11, 217-218, and passim  (1949).



205

they were joined by staunch Puritan and Calvinist stocks 
from New York and New England. Thus, the antislavery 
movement became sectionalized with important centers in 
Ohio, western New York, and Pennsylvania.

Spearheading the movement was the American Anti- 
Slavery Society, founded in 1833 and headed by the 
wealthy Tappan brothers. Recruited and led by Theodore 
Weld,10 a brilliant orator and organizer, and by his co­
leader, James G. Birney,11 a converted Alabama slave­
holder and lawyer, whole communities were abolitionized 
in the years 1835-1837. Appeals were aimed at influential 
leaders; lawyers in particular were sought out and re­
cruited by the score.

This appeal was an ethico-moral-religious-natural rights 
argument. It was addressed by the revivalists to their 
countrymen as patriots, Christians, and “ free moral 
agents.”  “ The law of nature clearly teaches the natural 
republican equality of all mankind. Nature revolts at 
human slavery. . . . The Law of God renders all Natural 
Rights inalienable. . . . Governments and laws are estab-

10 See T hom as, T heodore W eld (1950); L etters of T heodore 
D w ight  W eld, A ngelina Grim ke  W eld and Sarah  Grim k e , 
1822-1844, 2 vols. (Barnes and Dumond ed. 1934) cited hereinafter as 
W eld-G rim ke  L etters. See also Barnes, T he A n ti-S lavery 
I mpulse, 1830-1844 (1933). Weld was a tireless speaker and pam­
phleteer who turned out documents that became guide posts in the 
antislavery movement: S lavery as It Is (1839); T he P ower of 
Congress O ver the  D istrict of Columbia (1838); T he B ible 
A gainst S lavery (1837). Such persons as William Jay, John 
Quincy Adams and Senator Robert C. Winthrop relied on Weld for 
legal research. See 2 W eld-G rim ke  L etters 748, 956-958. The 
evangelical character of the antislavery movement helps account for 
the flood of arguments that poured from it. It was even organized 
on an analogy drawn from early Christian evangelists with its Seventy 
and its Council of Twelve.

11 See B irney , James G. B irney and H is T imes (1 8 9 0 ); 
Letters of James G. B irney , 1831-1857, 2 vols. (Dumond ed. 1938), 
referred to hereinafter as B irney L etters.



206

lished, not to give, but to protect . . . rights.”  12 Negroes, 
they continued, were “ not naturally inferior.”  They sim­
ply had been degraded by slavery. They were persons, 
endowed by God with all the attributes of personality. 
Their enslavement could no more be justified than could 
chattelization of men with red hair. Slavery rested on a 
capricious, discredited classification.13 It simply was insti­
tutionalized false imprisonment. White men were pro­
tected against enslavement and against false imprison­
ment. ‘ ‘What abolitionists demand as naked justice is 
that the benefit and protection of these just laws be extended 
to all human being alike . . . without regard to color or any 
other physical peculiarities. ’ ’ 14

Racial discrimination, in short, was repugnant both as 
a breach of equality and as a breach of protection. Because 
it was a breach of protection, it also was a breach of 
equality; and because it was a breach of equality, it was 
thereby an even greater breach of protection. This was 
the outcome of Americans’ triple-barreled major premise 
which posited the purpose of all government to be the 
protection of inalienable rights bestowed upon all men by 
their Creator. Once that compound premise was granted— 
and in the generations since 1776 virtually all Americans

12 O lcott, Two L ectures on th e  Subject of S lavery and 
A bolition 24-29 (1838).

13 The idea that race and color were arbitrary, capricious stand­
ards on which to base denial of human rights was implicit in all anti­
slavery attacks on discrimination and prejudice. Yet it was when the 
constitutional-legal attack began to reinforce the religious one that 
such arguments became explicit, and the concept of an arbitrary classi­
fication developed. Lawyers like Ellsworth, Goddard, Birney (Philan­
thropist, Dec. 9, 1836, p. 3, cols. 4-5), Gerrit Smith (see A merican 
A n ti-S lavery Society, 3 A nn ual  R eports 16-17 (1836)) and 
Salmon P. Chase (S peech . . .  in  the  Case of th e  Colored 
W o m an , M atilda . . .  32 (1837)) helped to formulate the concept 
and linked it with the principles of equality, affirmative protection, 
and national citizenship.

14 O lcott, op. cit. supra note 12, at 44.



2 0 7

outside the South had spoken as if they granted it—the 
abolitionists’ conclusions were unassailable. The heart of 
it was that these basic ideals of liberty, equality, and pro­
tection were deemed to be paramount by reason of their 
place in the Declaration and determinative by reason of 
the place of the Declaration in American life and history.

The issue had to be resolved within the framework of 
the constitutional system. Appeals to ethico-moral con­
cepts and to natural rights were good enough to argue as to 
what ought to be. Reality was something else again. Con­
stitutional reality was that the status of inhabitants of 
the United States, white or Negro, was fixed by the Consti­
tution. Social reality was that the great mass of Negroes 
were slaves.

Inevitably, then, the first skirmishes as to the rights 
claimed for Negroes had to be fought out in the case of 
free Negroes.15 The targets here were northern black 
laws—the laws in Ohio and Connecticut; the techniques 
were persuasion, conversion, and demonstration. It was 
in the course of this campaign that what presently became 
the constitutional trinity of the antislavery movement 
received its decisive synthesis.

The first comprehensive brystallization of antislavery 
constitutional theory occurred in 1834 in the arguments of 
W. W. Ellsworth and Calvin Goddard, two of the out­
standing lawyers and statesmen of Connecticut, on the 
appeal16 of the conviction of Prudence Crandall for viola-

15 For characteristic references to plans for bettering the lot of 
the free Negro, see 1 W eld-Grim k e  L etters, op. cit. supra note 10, 
at 132-135, 262; A merican A n ti-S lavery Society, 4 A nn ual  
R eports 32-35, 105-111 (1837), 5 A nnual R eports 127 (1838). 
For evidence of how large the condition of the free Negroes, and 
plans for their betterment, figured in the early A. A. S. S. strategy, 
see T h e Condition of F ree  P eop le of Color in the United S tates, 
The Anti-slavery Examiner #13a (1839), apparently written by 
Judge William Jay, reprinted in his M iscellaneous W orks 371- 
395 (1853).

10 Crandall v. State, 10 Conn. 339 (1834).



2 0 8

tion of ail ordinance forbidding the education of non­
resident colored persons without the consent of the civil 
authorities.17 They reveal this tlieoiy|"as based on broad 
natural rights premises and on an ethical interpretation 
of American origins and history. Four ideals were central 
and interrelated: the ideal of human equality, the ideal of 
a general and equal law, the ideal of reciprocal protection 
and allegiance, and the ideal of reason and substantially 
as the true bases for the necessary discriminations and 
classifications by government. Race as a standard breached 
every one of as attacked

of the laws—denials inherent in any racial discrimination 
backed by public authority. Slavery was the arch evil in 
this respect, and the primary one, both because of the 
magnitude of its denials and deprivations and abridgments, 
and because these necessarily established a whole pattern 
of discrimination based upon race and color alone. It was 
this pattern of public discrimination that was combatted 
no less than slavery. It had to be combatted because it was 
deemed a part of slavery.

Although neither slavery nor segregated schools was 
the issue in the case, the Ellsworth-Goddard argument is 
one of the classic statements of the social and ethical case 
for equality of opportunity irrespective of race. It gave 
immense impetus to the emerging concept of American 
nationality and citizenship. Fully reported and widely cir-

17 R eport of the  A rguments of Counsel in  th e  Case of 
Prudence Crandall, P lff. in  Error, vs. State of Connecticut, 
Before th e  S upreme Court of E rrors, at T heir S ession at 
Brooklyn , July T erm , 1834. The arguments are printed in con­
densed form in the official report, Crandall v. State, supra note 16, 
at 349-353 (1834). See also Ja y , M iscellaneous W ritings on 
Slavery 34-51 (1853); Stiener, H istory of Slavery in Co n n . 
45-52 (1893); V on H olst, Constitutional H istory 1828-1846 
98, 99 (1881); McCarron, Trial o f  Prudence Crandall, 12 Con n . 
M ag. 225-232 (1908) ; N ye , op. cit. supra note 9, at 83.

was denial protection



209

culated as a tract, it soon became one of the fountainheads 
of antislavery constitutional theory. It figured prominently 
in Abolitionist writings throughout the ‘ thirties. In the 
spring of 1835, Judge William Jay, Abolitionist son of the 
first Chief Justice and one of the founders and vice- 
presidents of the American Anti-Slavery Society, devoted 
fifteen pages of his Inquiry into the Character and Ten­
dency of the Colonization and Anti-Slavery Societies 18 to 
a slashing attack on the trial court’s decision.

The due process element of our modern trilogy was 
introduced in the course of a determined attack made in 
1835 by the Weld-Birney group upon Ohio’s black laws. 
Enacted in 1807, these laws embodied prohibtions against 
Negro immigration, employment, education, and testimony. 
A  report * 10 prepared at Weld’s direction by a committee of 
the newly formed Ohio Anti-Slavery Society appealed to 
the American and Christian conscience. Notwithstanding 
the affirmative duty of all government to “ promote the 
happiness and secure the rights and liberties of man,”  and 
despite the fact that American government was predicated 
on the ‘ ‘ broad and universal principle of equal and unalien­
able rights,”  these statutes had singled out a “ weak and 
defenseless class of citizens—a class convicted of no crime 
—no natural inferiority,”  and had invidiously demanded 
their exclusion from “ the rights and privileges of citizen­
ship.”  This, it was argued, the Constitution forbade. 
“ Our Constitution does not say, All men of a certain color 
are entitled to certain rig’hts, and are born free and inde­
pendent. . . . The expression is unlimited. . . .  All men are 
so born, and have the unalienable rights of life and liberty 
—the pursuit of happiness, and the acquisition and pos­
session of wealth.”

18 Reprinted in Jay , M iscellaneous W ritings on Slavery 36 
(1853).

10 P roceedings of th e  O hio A n t i-S lavery Convention H eld 
at P utnam  17-36 (April 22-24, 1835).



2 1 0

These were the doctrinal cornerstones.20 They were the 
heart of the ethico-moral-historical-natural rights argument 
which the American Anti-Slavery Society broadcast in the 
mid- and late-‘ thirties. They were broadcast particularly 
throughout Ohio, western New York and Pennsylvania,

20 It is not implied that these arguments were without antecedents. 
Earlier (1819-21) in the controversy over Missouri’s admission, the 
provision in its Constitution prohibiting immigration of free Negroes 
prompted antislavery arguments based on the republican form of 
government and comity clauses. See B urgess, T he M iddle P eriod, 
1817-58 c. 4 (1897); M cL au g h lin , Constitutional H istory of 
the  U nited States c. 29 (1935) ; W ilson, R ise and Fall of the 
S lave P ower cc. 11-12 (1872), especially at 154.

Later, the Horton episode, and the protracted controversy over 
southern seamen’s laws whereunder northern and British free Negro 
seamen were confined to quarters or jailed while in southern ports, 
gave further impetus to theories of national or Am erican  citizenship. 
The former was a cause celebre of 1826-1827 involving a statute of 
the District of Columbia which authorized sale for jail fees of su s­
pected  fugitive slaves. Horton, a free Negro of New York, who had 
been arrested and threatened with sale, was saved by timely aid of 
Abolitionist friends who capitalized the incident. See Ja y , M iscel­
laneous W ritings on Slavery 48, 238-242 (1853) ; T u ckerm an , 
W illiam  Jay  and the  Constitutional M ovement for A bolition 
of S lavery 31-33 (1893); 3 Cong. D eb. 555 (1826). Regarding 
the seamen’s controversy, see Hamer, Great Britain, the United  
S tates and the N e g r o  Seam en A c ts , 1 8 2 2 -1 8 4 8 ,  1 J. of So. H ist. 1-28 
(1935); H. R. R ep. No. 80, 27th Cong., 3rd Sess. (1843).

Later, in 1844, the Hoar incident occurred, in which Judge Samuel 
Hoar of Massachusetts, proceeding to Charleston to defend impris­
oned Negro seamen, was expelled from South Carolina by legislative 
resolution. See Hamer, supra, and the elaborate documentation in 
State D ocuments on F ederal R elation s : T he States and the 
U nited States 237-238 (Ames ed. 1904).

The Hoar expulsion and the numerous laws, both North and 
South, excluding free Negroes and mulattoes, were cited repeatedly 
in the debates of the 'fifties and in 1866. See, for example, Cong. 
Globe, 39th Cong., 1st Sess. 475 (1866) (Remarks of Sen. Trum­
bull).



2 1 1

Rhode Island, and Massachusetts.21 Weld was the director 
and master strategist ; Birney, the forensic quartermaster 
and attorney general. The “ Twelve”  and the “ Seventy”  
were the chosen instruments. These were the two dedicated 
hand-picked groups of trained teachers, ministers, divinity 
students, self-named after the early Christian Apostles. 
Their revivals converted thousands before funds ran out 
and southern antagonism crippled the movement. Numer­
ous anti-slavery newspapers and coordinated pamphlet and 
petition campaigns were reinforcing media.

The trouble, of course, was that northerners were still 
largely indifferent to or uureaehed by this program, while 
the South rejected it almost without a hearing. Coincidence 
played a great part here. Alarmed lest educated Negroes 
foment slave insurrections, the South further tightened its 
controls.22 Fortuitously, the Yesey and Turner uprisings 
had seemed to offer frightening confirmation of fears in this 
regard. Meanwhile, cotton profits and politics had begun 
to rationalize slavery as “ a positive good.”  The insidious 
belief spread that the South must insulate herself, safe­
guard her “ peculiar institutions,”  and remove them even 
from discussion and criticism.23 In the Pinckney Report of 
1836,24 pro-slave theorists sought to implement these con­
victions. To reinforce Calhoun’s defensive doctrines of 
concurrent majority and state interposition, and in a de-

21 See especially B a r n e s , op. cit. supra note 10, cc. 2, 3, 4, and 
W e l d - G r i m k e  L e t t e r s  and B i r n e y  L e t t e r s , op. cit. supra notes 
10, 11.

22 See E a t o n , F r e e d o m  o f  T h o u g h t  i n  t h e  O l d  S o u t h  c . 5 
(1940) and statutes there cited; S y d n o r , D e v e l o p m e n t  o f  S o u t h ­
e r n  S e c t i o n a l i s m  1819-1848 (1948).

23 See J e n k i n s , P r o s l a v e r y  T h o u g h t  i n  t h e  O l d  S o u t h  
(1935); and the histories of Eaton and Sydnor, op. cit. supra note 
22; and W i l t s i e , J o h n  C . C a l h o u n , N u l l i f i e r , 1828-1839 c. 20, 
esp. 283-286 (1949) ; cf. Corwin, National P o w e r  and State Interposi­
tion, 1 7 8 7 -1 8 6 1 , 10 M i c h . L. R e v . 535 (1912).

24 H. R. R e p . No. 691, 24th Cong., 1st Sess. (1836).



2 1 2

termined attempt to protect slavery in the Federal District 
from possible interference or abolition by Congress under 
its sweeping- powers over the District and territories, 
Pinckney and his colleagues in the House employed the due 
process clause of the Fifth Amendment and “ the principles 
of natural justice and of the social compact.” 25

3. The Political Action Campaign 

A. Systemization

Thus, the antislavery campaign was set back, its piece­
meal conversion and demonstration program was frustrated 
at the outset by barriers that held slavery to be a positive 
good—untouchable even where Congress had full powers 
over it. Antislavery men were denied the use of the mails. 
Their antislavery petitions were throttled by Congressional 
“ gags” . They were forced to defend even their own rights 
to speak and write and proselytize. In consequence, the anti­
slavery leaders had to reorient their whole movement and 
strategy.26

This reorientation, greatly accelerated by the Pinckney 
Report, was marked by rapid “ constitutionalization”  of 
the higher law argument. There was a shift from an over­
whelming faith in moral suasion to a reluctant resort to 
political action, from efforts to convince Americans of the 
expediency and justice of freeing their slaves, to a search 
for constitutional power to free them.27

These tendencies may be traced today in the pages of 
the Weld-Grimke and Birney Letters, in a vast pamphlet 
literature, in annual reports of the state and national

25 Id . at 14.
20 D u m o n d , T h e  A n t i s l a v e r y  O r i g i n s  o f  t h e  C i v i l  W a r  

(1938) ; N y e , op . cit. su p ra  note 9.
27 D u m o n d , op . cit. supra  note 26, especially cc. 5-6; T. C. S m i t h , 

T h e  L i b e r t y  a n d  F r e e  S o i l  P a r t ie s  i n  t h e  N o r t h w e s t  (1897); 
N y e , op . cit. su p ra  note 9. C f . C r a v e n , T h e  C o m i n g  o f  t h e  C i v i l  
W a r  (1943) ; N e v i n s , O r d e a l  o f  t h e  U n i o n  (1947).



213

societies,28 29 but most satisfactorily in the columns of Birney’s 
Philanthropist.2B Calhoun and “ positive good”  theorists 
had fashioned a constitional system that promised absolute 
protection for slavery and ignored the constitutional refer­
ence to slaves as “ persons,”  referring to them whenever 
possible as “ property.”  These theorists also employed 
the “ compact”  and “ compromises”  of 1787 as a device 
that removed slavery from the reach not merely of state 
and federal legislatures but from adverse discussion and 
criticism.

Birney and his colleagues now formulated a counter­
system, one which exalted liberty and exploited the found­
ing fathers’ use of “ persons.”  Denying all limiting force 
to the “ compact”  or “ compromises,”  this group hailed 
the spirit of the Declaration, of the Constitution, and 
American institutions generally. They seized on the lead­
ing provisions of the state and federal bills of rights as 
affirmative guarantees of the freedom of the slaves.30

28 Read straight through, the six A n n u a l  P r o c . a n d  R e p . o f  
A m e r i c a n  A n t i s l a v e r y  S o c i e t y  (1833-1839) and the five A n n i ­
v e r s a r y  P r o c . o f  t h e  O h i o  A n t i s l a v e r y  S o c i e t y  (1836-1840) 
reveal the shift from confident evangelism to determined self-defense 
and political action. Not until after the Pinckney Report (su p ra  
note 24), the “Gags” denying antislavery petitions, and the refusal 
of the South to countenance discussion of the issue, does one find 
serious interest in political movements and tactics. The T h i r d  
A n n u a l  R e p o r t  o f  t h e  A. A. S. S. (May 10, 1836) signed by 
Elizur Wright is thus the turning point and a catalog of the factors 
that had reoriented opinion. By the S i x t h  A n n u a l  R e p o r t  o f  t h e  
A. A. S. S. (1839), the “imperative necessity of political action” 
caused Wright to devote much of his space to convincing the still 
hesitant and divided membership.

29 Birney’s career as an editor can be followed in the B i r n e y  
L e t t e r s , op . cit. supra  note 11 (see index entries “Philanthropist” ), 
and in his pamphlet N a r r a t i v e  o f  t h e  L a t e  R io t o u s  P r o c e e d in g s  
A g a i n s t  t h e  L i b e r t y  o f  t h e  P r e s s  i n  C i n c i n n a t i  (1836).

30 Sometimes Abolitionists, in desperation, appealed to a higher 
law beyond the Constitution, but this was not a consistent argument 
or one possible within the legal framework.



214

In his earlier writings,31 Birney’s ethical interpreta­
tion of American origins and history was essentially that 
of the Crandall argument and the Ohio Anti-Slavery Society 
reports. The natural rights creed of the Declaration, the 
universality of guarantees of the state bills of rights, 
the Signers’ and the Fathers’ known aversion to slavery, 
the “ color blindness”  of the Articles of Confederation, the 
outright prohibition of slavery in the territories by the 
Northwest Ordinance, and above all, the silence, the 
euphemisms, the circumlocutions of the Constitution— 
these were the recurrent and expanding points. Not merely 
slavery, but all public race discrimination was ethically 
and morally wrong. It was so because it was a denial of 
the rights and protections that governments were estab­
lished to secure.

After the Pinckney Report, however, and especially 
after the growing mob action against Abolitionists began 
to make it clear that state bills of rights were not self­
executing but rested on local enforcement, Birney re­
examined his position. Everywhere there was this anomaly: 
the great natural and fundamental rights of conscience, 
inquiry and communication, secured on paper in every 
constitution, nevertheless were denied and abridged daily 
for want of sanctions. All men by nature “ possessed”  
these indispensable rights; all constitutions “ declared”  
and “ secured”  them. It was the bounden duty of all 
governments “ created for the purposes of protection”  to 
safeguard and enforce them. Yet the hard fact was that 
state and local governments were flagrantly, increasingly 
derelict. Nothing, southerners argued, could be done about 
it.

Challenged in this manner, Birney and his aides shifted 
their ground. They advanced from the old position that

31 B i r n e y  L e t t e r s , op . cit. supra  note 11. For a fuller and docu­
mented summary, see Graham, E a r ly  A n tis la v e r y  B a c k g ro u n d s , supra  
note l ,  at 638-650.



215

the Federal Constitution was neutral—“ or at least not 
pro-slavery” —to the stand that the document was anti­
slavery. Constitutionalization of the natural rights agru- 
ment proceeded at a much more rapid pace. No longer was 
the fight waged merely defensively in behalf of the right 
to proselytize, or counter-defensively to support sweeping 
Federal powers over the District and territories; more and 
more the antislavery forces took the offensive against 
slavery itself.32

Thus, by December 1836, the Abolitionists ’ argument was 
recrystallizing around three major propositions:

First, the great natural and fundamental rights of life, 
liberty, and property, long deemed inherent and inalien­
able, were now held to be secured by both state and national 
constitutions.

Second, notwithstanding this double security, and in 
disregard of the obligation of governments to extend pro­
tection in return for allegiance, these rights were being 
violated with impunity both on national soil and in the 
states, (a) by the fact of slavery itself, (b) by mob action 
directed against those working for abolition, (c) by flagrant 
discriminations against free Negroes and mulattoes.

Third, race and color— “ grades and shades” —when­
ever and wherever employed as criteria and determinants 
of fundamental rights, violated both the letter and spirit of 
American institutions; race per se was not only an ignoble 
standard; it was an irrational and unsubstantial one.

The problems of implementing this theory, Birney 
worked out in several series of articles during 1837. 
Rescrutinizing the document, he began to make the same 
rigorous use of the Federal Bill of Rights that previously

32 See Graham, E a r ly  A n tis la v e r y  B a ck g ro u n d s , su p ra  note 1, at 
650-653.



216

he and others had made of Ohio’s. Ultimately, he focused 
on the due process clause employed in Pinckney’s Report:33

“ The Constitution contains provisions which, if 
literally carried out, would extinguish the entire 
system of slavery. It guarantees to every state in 
the union a republican form of government, Art. IV, 
Sec. 4th. A majority of the people of South Carolina 
are slaves; can she be said properly to have a 
republican form of government! It says, that ‘ the 
right of the people to be secure in their persons, 
houses, papers and effects . . . against unreasonable 
searches and seizures, shall not be violated. ’ Slaves, 
Sir, are men, constitute a portion of the people: 
Is that no ‘ unreasonable seizure,’ by which the man 
is deprived of all his earnings [effects?]—by which 
in fact he is robbed of his own person? Is the 
perpetual privation of liberty ‘ no unreasonable 
seizure’ ? Suppose this provision of the Constitu­
tion were literally and universally enforced; how 
long would it be before there would not be a single 
slave to mar the prospect of American liberty? 
Again, ‘ «o  person shall be held to answer for a 
capital or otherwise infamous crime unless on the 
presentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, [sic] 
nor shall any person be compelled in any case to wit­
ness against himself; nor be deprived of life, liberty 
or property without due process of law.’ Art. V 
Amendments.

“ Are slaves ever honored with indictment by a 
grand jury? Are they never compelled ‘ to witness 
against themselves’ ? never tortured until they lie 
against their own lives? never deprived of life with­
out ‘ due process of law’ ? By what ‘ due process of 
law’ is it, that two millions of ‘ persons’ are deprived 
every year of the millions of dollars produced by 
their labor? By what due process of law is it that

33 Philanthropist, Jan. 13, 1837, p. 2. Birney continued his 
“Reply to Judge L” in the Jan. 20 and 27, 1837 numbers, and in the 
former demonstrated his forensic powers by brilliant caricature of 
the South’s efforts to suppress discussion of slavery.



217

56,000 ‘ persons,’ the annual increase of the slave 
population, are annually deprived of their ‘ liberty’ ? 
Such questions may seem impertinent, to Mr. L., 
but when he shall feel that the slave is a ‘ person,’ 
in very deed, and has rights, as inalienable as his 
own, he will acknowledge their propriety. Again 
‘ In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an im­
partial jury . . . and to be informed of the nature 
and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory pro­
cess for obtaining witnesses in his favor; and to 
have the assistance of Counsel for his defense.’ Art. 
VI of the Amendments. Take all the above provisions 
in connection with that clause under Art. VI, which 
declares that ‘ This Constitution and the laws of the 
United States which shall be made in pursuance 
thereof’ etc., ‘ shall be the supreme law of the land, 
and the judges in every state shall be bound thereby, 
anything in the Constitution or laws of any state to 
the contrary notwithstanding’—and then carry them 
out to their full extent, and how long would it be 
ere slavery would be utterly prostrated l I do not 
say they were inserted with a specific view toward 
this end, but I do say, that so long as they shall stand, 
the Constitution of these Ufnited] States will be 
a perpetual rebuke to the selfishness and injustice of 
the whole policy of the slaveholder. The provisions 
embody principles which are at entire enmity with 
the spirit and practice of slavery. How an instru­
ment, containing such principles, can be tortured to 
express a sanction to slavery, I am yet to learn.”  34

Eeassimilation of the old theory into the Bill of Eights 
now proceeded rapidly.35 The various clauses restraining 
the powers of Congress began to be popularly regarded as 
sources of Congressional power. The initial premise in

34 Ibid.
35 Resolutions and petitions still were the chief media in evolving 

this system of constitutional shorthand. Similarity of the revivalists’ 
lectures from place to place, their widespread circulation of the Philan­
thropist and printed tracts, Birney’s own speaking tours, all con­
tributed to resulting stereotypes.



218

this regard was that the provisions of the Bill of Rights 
were not rights, they were guarantees, and guarantees 
customarily presumed the intent and capacity, as well as 
the duty, to make them good.3” An open letter 36 37 to his 
Congressman from an unnamed Abolitionist in Batavia 38 
reveals the hold and spread and reach of these ideas:

“ The very Constitution of the United States is 
attempted to be distorted and made an ally of 
domestic slavery. That Constitution was established, 
not by the citizens or voters, but by ‘ the people’ of 
the United States to secure the blessings of liberty 
and establish justice. The Union . . . was formed 
for the same great purposes, . . . yet we have been 
told that petitioning for liberty endangers this 
Union, that the partnership will be dissolved by 
extending to all the very right it was intended to 
secure.

‘ ‘ Slavery in the District of Columbia violates the 
most important and sacred principles of the Consti­
tution. . . .  1 speak not of the mere letter, but of the 
principles . . . —of the rights it guarantees, of the 
form, in which the guarantee is expressed. The 5th 
Amendment declares ‘ no person shall be deprived 
of life, liberty or property without due process of 
law.’ This petition informs you free men in the 
District . . . have been first imprisoned, and then 
sold for their jail fees. [Suppose, he continued, this 
had happened to American seamen in a foreign port]. 
Would not Congress upon petition enquire into the 
fact and redress the wrong if it existed? Would 
not you, Sir, be one of the foremost in repelling the 
insult to our seamen and punishing the aggressor? 
Would you not consider it your duty—your official 
duty to do so? And yet you have no power to dis-

36 For a striking statement of this theory in 1866 see C o n g . G l o b e , 
39th Cong., 1st Sess. 1270 (Rep. Thayer, later a distinguished Phila­
delphia judge).

37 Graham, E arly A n tisla very Backgrounds, supra note 1, at 655.

38 Perhaps John Joliffe, a local antislavery lawyer, who was a 
close friend of Birney. See Graham, E a rly A n tisla very B ackgrounds, 
supra note 1, at 655, n. 256.



219

criminate in the object of your protection—a colored 
sailor is entitled to the protection of his country’s 
laws, and Constitution, and flag’, and honor, as well 
as a white one,—he is as much entitled to that pro­
tection in Washington city beneath the flag of his 
country and while he reposes under the tower of the 
Capitol as he is at Qualla Balloo or Halifax, or any­
where on the face of the earth. And all should be 
protected with equal and exact justice, whether sail­
ors or laborers—citizens or soldiers: if so, you are 
bound to enquire into the alleged abuses, and if they 
exist to redress them.”

Thus, by October, 1837, the date of Birney’s retirement 
as editor of the Philanthropist, the motivating premise of 
Abolitionism already was coming to be this: Americans’
basic civil rights were truly national, but in practice their 
basic civil liberty was not. By acts in support and in tolera­
tion of slavery and by failure to protect the friends of the 
enslaved race, the states and the federal government all 
abridged, and all allowed to be abridged, the dearest privi­
leges and immunities of citizenship. Humanitarianism had 
attempted to soften race prejudice and meet this challenge 
squarely but had been frustrated. Failure left no alternative 
but political action and the instinctive answer that govern­
ment had the power to do what the governed had the job to 
do. The answer to denied power and to defective power was 
the concept of an inherent power derived from the stand­
ing duty to protect. The gist of it was that because 
allegiance and protection were reciprocal—i.e., ought to be 
reciprocal—because the government protected its citizens 
abroad without discrimination, and because the text of the 
Federal Bill of Rights gave no warrant for discrimination, 
Congress was duty bound not to discriminate. It must do 
“ equal and exact justice”  irrespective of race. It had no 
other choice. It lacked power to discriminate between those 
persons who were equally entitled to protection. It was 
duty bound also to remove such discrimination as existed. 
Implicitly, and morally, these same obligations rested on



220

the states; yet respect for the constitutional division of 
power here introduced conflict. Few were yet ready for 
the extreme proposition that Congress might constitution­
ally abolish slavery in the states. The original form, as 
shown by the Batavian communication, was more often 
that Congress was duty bound to hear petitions to abolish 
slavery, or that slavery had been abolished in federal 
territory by the force of the Preamble and Declaration. 
Because the great natural rights were now also national 
constitutional rights, they began to generate and carry 
with them— even into the states—the power for their en­
forcement.
B. Popularization

Four routes and media of political action “ constitu­
tionalizing”  the antislavery argument are to be noted.

First were the countless petitions, resolutions, declara­
tions, letters, editorials, speeches, and sermons broadcast 
by the original antislavery proponents and converts— 
uniformly men and women of influence and position whose 
idealism was extraordinary and undoubted. One has to 
read only the Weld-Grimke and the Birney 39 Letters, or the

:l!l The legal and constitutional argument in the B i r n e y  L e t t e r s  
is remarkable both in range and interest. Note especially the due 
process arguments at 293, 647, 805-806, 835; the declaration that 
colored people are “citizens” at 815, and “persons” at 658 and 835; 
the exceptionally strong references to “natural equality of men” at 272; 
the composite synthesis of all these elements in the Declaration of 
1848 drafted by William Goodell at 1048-1057; the various references 
to major law cases at 386-387 (Nancy Jackson v. Bulloch, 12 Conn. 
38 (1837)), at page 658, 667-670 (Birney’s arguments in The Creole, 
2 Moore, Digest of International Law 358-361 (1906), for which 
Weld did much of the research), at 758 (Jones v. Van Zandt, 
46 U. S. 215 (1846)) in which Salmon P. Chase was of coun­
sel). By contrast, the legal argument in the W e l d - G r i m k e  L e t t e r s  
is more limited, but see page 798 for the letter of Ebenezer Chaplin, 
an Athol, Massachusetts physician, to Weld, dated October 1, 1839, 
urging greater emphasis on the unconstitutionality of slavery and less 
on its cruelties, and specifically mentioning the Declaration of Inde­
pendence, the common law, the Ordinance of 1787, the Preamble, and 
the due process clause of the Fifth Amendment.



monographs of Barnes,40 Dumond41 and Nye42—and 
Nevins’ great history43—to realize the appeal of these 
peoples’ character and of their example and argument. 
Moreover, many of them were southerners, and of the 
proudest type who practiced what they preached—Birney 
alone freeing slaves to the value of thousands of dollars,44 
and the Grimke sisters doing likewise with those they in­
herited. Every antislavery society was a band of disciples, 
workers, petitioners, writers, and “ free moral agents”  
committed to the spread of doctrine that had immense 
intrinsic appeal.

In consequence, simply as an incident of the intense re­
vival campaigns, the equal protection-due process-privileges 
and immunities theory became the core of thousands of 
abolitionist petitions, resolutions, and lectures. Now one, 
now another of the elements was accented, depending on 
the need and circumstances, but in an astonishing number 
of cases two or three parts of the trilogy were used. The 
whole thus became, even before 1840, a form of popular 
constitutional shorthand.

After that date even stronger forces enter the picture. 
First, were the compilers and synthesizers—pamphleteers 
and journalists like Tiffany45 and Groodell46 and Mellen47

40 O p . cit. su pra  note 10.
41 O p . cit. su p ra  note 26.
42 O p . cit. su p ra  note 9.
43 T he O rdeal of the  U n ion , 2 vols. (1947).
44 1 B i r n e y  L e t t e r s , op . cit. supra  note 11, at 52, 494, 498, 500- 

501.
45 T i f f a n y , A  T r e a t i s e  o n  t h e  U n c o n s t i t u t i o n a l i t y  o f  

A m e r i c a n  S l a v e r y  (1849).
48 G o o d e l l , V i e w s  o f  A m e r i c a n  C o n s t i t u t i o n a l  L a w  i n  it s  

B e a r i n g  U p o n  A m e r i c a n  S l a v e r y  (1844).
4| M e l l e n , A n  A r g u m e n t  o n  t h e  U n c o n s t i t u t i o n a l i t y  o f  

S l a v e r y  . . . (1841).



222

who wrote the articles and treatises on the “ Unconstitution­
ality of Slavery”  which Dr. tenBroek analyzes so well.48 
Others annotated copies of Our National Charters49 setting 
down after each clause or phrase of the Constitution and 
the Declaration (much as Birney had done in his early 
articles) antislavery arguments and doctrines gleaned 
‘ ‘ both from reason and authority. ’ ’ Such materials, broad­
cast by the thousand, reprinted, condensed and para­
phrased, were themselves powerful disseminators.

It was the minority party platform that gave anti­
slavery theory its most concise, effective statement. 
Drafted generally by Salmon P. Chase or Joshua R. Gid- 
dings, these documents, first of the Liberty and Free Soil 
parties in the ’forties, then of the Free Democracy and 
Republican parties in the ’fifties, and in 1860, all made 
use, in slightly varying combination, of the cardinal 
articles of faith: human equality, protection, and equal 
protection from the Declaration, and due process both as 
a restraint and a source of congressional power. Such 
consistent repetition testifies both to the nature and extent 
of previous distillations and to the power and significance 
of current ones:

1. Liberty Party Platform (adopted in 1843 for the 1844 
campaign):

“ Resolved, That the fundamental truth of the 
Declaration of Independence, that all men are en­
dowed by their Creator with certain unalienable 
rights, among which are life, liberty, and the pur­
suit of happiness, was made the fundamental law 
of our national government by that amendment of 
the Constitution which declares that no person shall

48 t e n B r o e k , A n t i s l a v e r y  O r i g i n s , op . cit. su p ra  note 2, c. 3 
and pp. 86-91.

49 (Goodell ed. 1863).



223

be deprived of life, liberty, or property without due 
process of law.” 80

2. Free Soil Party Platform, 1848:
“ Resolved, That our fathers ordained the Con­

stitution of the United States in order, among other 
great national objects, to establish justice, promote 
the general welfare, and secure the blessings of 
liberty, but expressly denied to the federal govern­
ment, which they created, all constitutional power 
to deprive any person of life, liberty, or property 
without due legal process.

“ Resolved, that, in the judgment of this conven­
tion, Congress has no more power to make a slave 
than to make a king; no more power to institute or 
establish slavery than to institute or establish a 
monarchy. No such power can be found among 
those specilically conferred by the Constitution, or 
derived by any just implication from them.” 50 51

3. Free Democracy Platform, 1852:
“ 1. That governments deriving their just pow­

ers from the consent of the governed are instituted 
among men to secure to all those unalienable rights 
of life, liberty, and the pursuit of happiness with 
which they are endowed by their Creator, and of 
which none can be deprived by valid legislation, ex­
cept for crime.

“ 4. That the Constitution of the United States, 
ordained to form a more perfect Union, to establish 
justice, and secure the blessings of liberty, expressly

50 The full platform is in S t a n w o o d , H i s t o r y  o f  t h e  P r e s i ­
d e n c y  216-220 (1904). In addition to the plank quoted, it contains 
numerous references to “equality of the rights among men,” “the 
principle of equal rights with all its practical consequences and appli­
cations,” the “higher law” and “moral law,” and the sacredness of 
rights of speech, press and petition.

81 Id. at 240. This platform was drafted by Salmon P. Chase. 
See S m i t h , T h e  L i b e r t y  a n d  F r e e  S o i l  P a r t i e s  i n  t h e  N o r t h ­
w e s t  140 (1897).



224

denies to the general government all power to de­
prive any person of life, liberty, or property with­
out due process of law; and, therefore, the govern­
ment, having no more power to make a slave than 
to make a king, and no more power to establish 
slavery than to establish a monarchy, should at once 
proceed to relieve itself from all responsibility for 
the existence of slavery wherever it possesses con­
stitutional power to legislate for its extinction.” 52

4. Republican Party Platform, 1856:
“ Resolved, That with our republican fathers we 

hold it be a self-evident truth, that all men are en­
dowed with the unalienable rights to life, liberty, and 
the pursuit of happiness, and that the primary object 
and ulterior designs of our federal government 
were to secure these rights to all persons within its 
exclusive jurisdiction; that, as our republican 
fathers, when they had abolished slavery in all our 
national territory, ordained that no person should 
be deprived of life, liberty, or property without due 
process of law, it becomes our duty to maintain this 
provision of the Constitution against all attempts 
to violate it for the purpose of establishing slavery 
in any Territory of the United States, by positive 
legislation prohibiting its existence or extension 
therein; that we deny the authority of Congress, of 
a territorial legislature, of any individual or asso­
ciation of individuals, to give legal existence to 
slavery in any Territory of the United States, while 
the present Constitution shall be maintained.” 53

5. Republican Party Platform, 1860:

“ 8. That the normal condition of all the terri­
tory of the United States is that of freedom; that

52 S t a n w o o d , op . cit. supra  note 50, 253-254. This platform was 
drafted by Salmon P. Chase (see W a r d e n , L i f e  o f  C h a s e  338 
(1874)) and Joshua R. Giddings (see S m i t h , op . cit. su p ra  note 
51, 247-248). '

53 S t a n  w o o d , op . cit. su p ra  note 50, at 271. This platform was 
drafted by  Joshua R. Giddings. J u l i a n , T h e  L i f e  o f  J o s h u a  R. 
G id d in g s  335-336 (1892).



as our republican fathers, when they had abolished 
slavery in all our national territory, ordained that 
no person should be deprived of life, liberty, or prop­
erty without due process of law, it becomes our 
duty, by legislation whenever such legislation is 
necessary, to maintain this provision of the Con­
stitution against all attempts to violate it ; and we 
deny the authority of Congress, of a territorial legis­
lature, or of any individual, to give legal existence 
to slavery in any Territory of the United States.

“ 14. That the Republican party is opposed to 
any change in our naturalization laws, or any state 
legislation by which the rights of citizenship hitherto 
accorded to immigrants from foreign lands shall be 
abridged or impaired; and in favor of giving a full 
and efficient protection to the rights of all classes of 
citizens, whether native or naturalized, both at home 
and abroad.” 54

True, these were party platforms, but these were the 
platforms of parties to which leaders in the Congress that 
would frame the Fourteenth Amendment had given their 
allegiance.55

Many Congressmen whose names later loomed large 
in the formulation of and debates on the Thirteenth and 
Fourteenth Amendments and the Civil Rights Acts were 
men of anti-slavery backgrounds5B which, it will be re­
called, had sought out community leaders, particularly

54 Stanwood, up. cit. su pra  note 50, at 293.
55 See in fra  pp. 27-36, and notes 56-69.
3,i Among them the following members of the Joint Committee on 

Reconstruction: George H. Williams, Oregon; Henry W . Grimes,
Iowa; William Pitt Fessenden, Maine; Henry T. Blow, Missouri; 
John A. Bingham, Ohio; George S. Boutwell, Massachusetts; Justin 
S. Morrill, Vermont; Roscoe Conkling, New York; Elihu B. Wash- 
burne, Illinois; and Thaddeus Stevens, Pennsylvania. Two others, 
Jacob M. Howard of Michigan and Ira Harris of New York, invari­
ably voted with the so-called Radicals. See K e n d r i c k  op . cit. supra  
note 2, at 155-195.



2 2 6

lawyers.67 Even in the ’forties, antislavery Whigs, Liberty 
Party-Free Soilers, and later, members of the Free Democ­
racy, converted by the Weld-Birney group, began to enter 
Congressmen like Joshua R. Giddings,58 E. S. Hamlin,59 
the Wade brothers,60 Horace Mann,81 Philomen Bliss,02 
A. P. Granger,83 Thaddeus Stevens,84 Gerrit Smith,65

57 Among Weld’s converts were Reps. Edward Wade, and Phile­
mon Bliss, and John H. Paine, Liberty Party leader. See 1 W e l d - 
G r i m k e  L e t t e r s , o p . cit. su pra  note 10, at 236-240.

58 1795-1864; represented Ohio’s Ashtabula and Jefferson Coun­
ties (Western Reserve) in House, 25th-34th Congresses, 1838-1859; 
with John Quincy Adams one of the original antislavery leaders in 
the House. 7 D ict. A m . B iog. 260 (1931).

59 1808-1894; represented Lorain County district in 28th Cong. 
1844-45; one of the political lieutenants of Salmon P. Chase in the 
’fifties. See 2 B i r n e y  L e t t e r s , op . cit. su p ra  note 11, at 1025.

60 Edward Wade, 1803-1862, elected as a Free Soiler from Cleve­
land, 1853-55, and as a Republican, 1855-61; Ben Wade, 1800-1878, 
law partner of Giddings, and Radical Senator, 1851-1869. See 2 
B i r n e y  L e t t e r s , op . cit. su p ra  note 11, at 710. 19 D i c t . A m .
B io g . 303 (1936).

81 1796-1859; one of the organizers of the American public school 
system; elected as a Whig to succeed J. Q. Adams, Mass, district; re­
elected as Free Soiler, served 1848-53; President, Antioch College, 
1852-59. 12 D ict. A m . B iog. 240 (1933).

02 1813-1889; Ohio Circuit Judge, 1848-51; elected as a Republi­
can from Elyria-Oberlin district, Ohio, served 1855-59; Chief Justice 
of Dakota Territory, 1861; Assoc. Justice Missouri Supreme Court, 
1868-72; Dean of Univ. of Missouri Law School, 1872-1889. 2 D i c t . 
A m . B io g . 374 (1929).

83 1789-1866; antislavery Whig from Syracuse, N. Y . ; served 
1855-59. B io g . D ir . A m . Cong., H. R. Doc. No. 607, 81st Cong., 
2d Sess. 1229 (1950).

64 1792-1868; elected as a Whig from Lancaster, Pa. district, 1849- 
53; as a Republican, 1859-68; Radical Republican leader in the 
House. 17 D ict. A m . B iog. 620 (1935).

65 1797-1874; elected from Peterboro, N. Y. district, one of the 
regions converted by Weld; served 1853-1854, resigned. 17 D i c t . 
A m . B io g . 270 (1935).



227

William Lawrence,66 James M. Ashley67 (who introduced 
the Thirteenth Amendment in the House), Samuel Gallo­
way68 (a former member of the “ Seventy” ) and John A. 
Bingham.69 All were either associates, converts, or 
disciples of the Weld-Birney group; and after 1854, all 
were Republicans.

In addition to the western group of antislavery leaders, 
there was an equally strong and determined group with its 
focus in New England. From this group emerged Charles 
Sumner, Wendell Phillips, and Henry Wilson. Sumner 
later became one of the most intransigent leaders of the 
Republican party during and after the Civil War.70 Wilson 
was also in Congress during the Reconstruction period; 
and became Vice-President and voted with the Radicals on 
important tie votes.71 Other New Englanders who served 
in Congress, and were members of the Joint Committee on 
Reconstruction, include William Pitt Fessenden of Maine, 
Justin Morrill of Vermont, and George S. Boutwell of 
Massachusetts.72

66 1819-1899; grad. Franklin College, New Athens, Ohio, 1838; 
Cincinnati Law School, 1840; Supreme Court Reporter, 1851; Judge, 
1857-64; elected as a Republican, served 1865-71, 1873-77. 11 D ict. 
A m . B io g . 52 (1933).

67 1824-1896; elected as a Republican from Scioto County, 1859- 
69. See 1 W e l d - G r i m k e  L e t t e r s , op . cit. su p ra  note 10, at 333. 
1 D i c t . A m . B io g . 389 (1928).

68 1811-1872, elected as a Republican from Columbus, 1855-57. 
See W e l d - G r i m k e  L e t t e r s , op . cit. supra  note 10, at 228.

69 For eight terms (1855-63, 1865-73) Bingham represented the 
21st Ohio District, composed of Harrison, Jefferson, Carroll and 
Columbiana Counties, including the Quaker settlements along Short 
Creek and the Ohio. See 3 B r e n n a n , B i o g r a p h i c a l  E n c y c l o p e d i a  
. . . o f  O h i o  691 (1884).

70 18 D i c t . A m . B io g . 208  (1 9 3 6 ) .
71 20 D i c t . A m . B io g . 322 (1936).
72 Fessenden was the son of General Samuel Fessenden, the lead­

ing Abolitionist of Maine, who was one of the national vice-presidents 
of the American Anti-Slavery Society, 6 D i c t . A m . B io g . 348 
(1931) ; on Morrill, see 13 D i c t . A m . B io g . 198 (1934) ; on Bout- 
well, see 2 D i c t . A m . B io g . 489 (1929).



228

Because Bingham is known to have drafted Sections 
One and Five of the Fourteenth Amendment, his speeches 
are of special interest. From 1855-63 and from 1865-73, he 
represented the Twenty-first Ohio District, which included 
the Cadiz-Mt. Pleasant Quaker settlements, antislavery 
strongholds. Furthermore, as a youth he had attended 
Franklin College at New Athens in 1837-38. At that date 
Franklin wms second only to Oberlin as an antislavery 
stronghold;73 the Weld-Birney crusade was at its height. 
Indeed, in Birney’s Philanthropist, 1836-37, we find various 
antislavery petitions and resolutions from the Cadiz and 
Mt. Pleasant societies.74 These are couched in the very 
phraseology for which Bingham in 1856-66 manifested his 
decisive preference.

Four of Bingham’s speeches are of particular signifi­
cance :

I. In his maiden speech in the House, March 6, 1856, 
attacking laws recently passed by the Kansas pro-slavery 
legislature which declared it a felony even to agitate against 
slavery, Bingham argued:

“ These infamous statutes . . . [contravene] the 
Constitution of the United States. . . . [A]ny ter­
ritorial enactment wdiich makes it a felony for a 
citizen of the United States, within the territory of 
the United States ‘ to know, to argue and to utter 
freely’, according to conscience is absolutely void. 
. . . [A] felony to utter there, in the hearing of a 
slave, upon American soil, beneath the American 
flag . . . the words of the Declaration ‘ All men are 
born free and equal, and endowed by their Creator 
with the inalienable rights of life and liberty;’ . . . 
[A] felony to utter . . . those other words. . . . 
‘We, the people of the United States, in order to

73 See Graham, E a r ly  A n tis la v e r y  B a ck g ro u n d s , op . cit. su p ra  note 
1, at 624, n. 150.

74 For an example see Philanthropist, Mar. 10, 1S37, p. 3, col. 4.



229

establish justice,’ the attribute of God, and ‘ to se­
cure liberty,’ the imperishable right of man, do 
‘ ordain this Constitution’. . . .  It is too late to 
make it a felony to utter the self-evident truth that 
life and liberty belong of right to every man. . . . 
This pretended legislation . . . violates the Constitu­
tion in this—that it abridges the freedom of speech 
and of the press, and deprives persons of liberty 
without due process of law, or any process but that of 
brute force, while the Constitution provides that 
Congress shall make no law abridging the freedom 
of speech or of the press; and it expressly pre­
scribes that ‘ no person shall be deprived of life, 
liberty, or property without due process of law. ’ ’ 75

TT. On January 13, 1857, Bingham spoke in support 
of Congress’ power over slavery in the territory and at­
tacked President Buchanan’s recent defense of the Kansas- 
Nebraska Act of 1854 repealing the Missouri Compromise. 
After a long analysis of the provisions of the Federal Bill 
of Rights, of the Northwest Ordinance, the enabling acts 
and constitutions of the states carved from the Ohio Terri­
tory—emphasizing especially the Federal due process 
clause and the “ all men are born equally free and inde­
pendent”  clauses of the state constitution, he said:

“ The Constitution is based upon e q u ality  of the 
human race. . . .  A  State formed under the Con­
stitution and pursuant to its spirit, must rest upon 
this great principle of e q u a l it y . Its primal object 
must be to protect each human being within its juris­
diction in the free and full enjoyment of his natural 
rights. . . .

75 Cong. Globe, 34th Cong., 1st Sess. app. 124 (1856). Three 
other antislavery Republicans representing constituencies converted 
in the Weld-Birney crusade also used all the old rhetoric and theory 
including due process: Rep. Granger (N. Y .) id . at 295-296; Reps. 
Edward Wade (id . at 1076-1081) and Philemon Bliss (id . at 553- 
557), both Ohioans and among Weld’s early converts. See also the 
speech of Rep. Schuyler Colfax (Ind.), id. at 644.



230

“ It must be apparent that the absolute equality 
of all, and the equal protection of each, are prin­
ciples of our Constitution, which ought to be observed 
and enforced in the organization and admission of 
new States. The Constitution provides . . . that no 
person shall be deprived of life, liberty, or property, 
without due process of law. It makes no distinc­
tion either on account of complexion or birth—it 

• secures these rights to all persons within its exclu­
sive jurisdiction. This is equality. It protects not 
only life and liberty, but also property, the product 
of labor. It contemplates that no man shall be 
wrongfully deprived of the fruit of his toil any more 
than of his life. ’ ’ 76

III. On January 25, 1858, attacking “ The Lecompton 
Conspiracy” —the proposed pro-slave constitution of Kan­
sas declaring that only “ All freemen, when they form a 
compact, are equal in rights, ’ ’—and absolutely barring free 
Negroes from the state, Bingham declared:

“ The [Federal] Constitution . . . declares upon 
its face that no person, whether white or black, shall 
be deprived of life, liberty, or property, but by due 
process of law; and that it was ordained by the 
people to establish justice! . . . [By sanctioning 
these provisions] we are asked to say, that the self- 
evident truth of the Declaration, ‘ that a l l  m e n  a e e  
c r e a t e d  e q u a l ’ is a self-evident lie. . . . We are 
to say . . .  to certain human beings in the Territory of 
Kansas, though you were born in this Territory, 
and born of free parents, though you are human 
beings, and no chattel, yet you are not free to live 
here . . .; you must be disseized of your freehold 
liberties and privileges, without the judgment of 
your peers and without the protection of law. Though 
born here, you shall not, under any circumstances, 
be permitted to live here. ’ ’ 77

7,i Cong. Globe, 34th Cong., 3rd Sess. app. 135-140 (1857). 
77 Cong. G lobe, 35th Cong., 1st Sess. 402 (1858).



231

IV. On February 11, 1859, Bingham attacked the ad­
mission of Oregon because its constitution forbade immi­
gration of free Negroes and contained other discrimina­
tions against them:

“ [TJliis constitution . . .  is repugnant to the 
Federal Constitution, and violative of the rights of
citizens of the United States. . . .

“ Who are citizens of the United Statesf They 
are those, and those only, who owe allegiance to the 
Government of the United States; not the base alle­
giance imposed upon the Saxon by the Conqueror 
. . . ; but the allegiance which requires the citizen 
not only to obey, but to support and defend, if need 
be with his life, the Constitution of his country. 
All free persons born and domiciled within the juris­
diction of the United States; all aliens by act of 
naturalization, under the laws of the United States.”

“ The people of the several States” , who according to 
the Constitution are to choose the representatives in Con­
gress, and to whom political powers were reserved by the 
Tenth Amendment, were to Bingham “ the same commu­
nity, or body politic, called by the Preamble . . . ‘ the 
people of the United States’ ” . Moreover, certain “ dis­
tinctive political rights” —for example the right to choose 
representatives and officers of the United States, to hold 
such offices, etc.—were conferred only on “ citizens of the 
United States.”

“ . . . I invite attention to the significant fact that 
natural or inherent rights, which belong to all men 
irrespective of all conventional regulations, are by 
this Constitution guaranteed by the broad and com­
prehensive word ‘ person,’ as contradistinguished 
from the limited term citizen—as in the fifth article 
of amendments, guarding those sacred rights which 
are as universal and indestructible as the human 
race, that ‘ no person shall be deprived of life, 
liberty, or property, but by due process of law, nor 
shall private property be taken without just com-



232

pensation. ’ And this guarantee applies to all citi­
zens within the United States.”

Against infringement of “ these wise and beneficent 
guarantees of political rights to the citizens of the United 
States as such, and of natural rights to all persons, whether 
citizens or strangers,”  stood the supremacy clause.

“ There, sir, is the limitation upon State sover­
eignty— simple, clear, and strong. No State may 
rightfully, by Constitution or statute law, impair 
any of these guarantied rights, either political or 
natural. They may not rightfully or lawfully de­
clare that the strong citizens may deprive the weak 
citizens of their rights, natural or political. . . .

“ . . . This provision [excluding free Negroes and 
mulattoes] seems to me . . . injustice .and oppres­
sion incarnate. This provision, sir, excludes from 
the State of Oregon eight hundred thousand of the 
native-born citizens of the other States, who are, 
therefore, citizens of the United States. I grant you 
that a State may restrict the exercise of the elective 
franchise to certain classes of citizens of the United 
States, to the exclusion of others; but I deny that 
any State may exclude a law abiding citizen of the 
United States from coming within its territory, or 
abiding therein, or acquiring and enjoying property 
therein, or from the enjoyment therein of the ‘ privi­
leges and immunities’ of a citizen of the United 
States. What says the Constitution:

“  ‘ The citizens of each State shall be entitled 
to all privileges and immunities of citizens in 
the several States.

Art. 4, Section 2.’
“ Here is no qualification. . . . The citizens of 

each State, all the citizens of each State, being citi­
zens of the United States, shall be entitled to ‘ all 
privileges and immunities of citizens of the several 
States.’ Not to the rights and immunities of the 
several States; not to those constitutional rights 
and immunities which result exclusively from State



233

authority or State legislation; but to ‘ all privileges 
and immunities’ of citizens of the United States in 
the several States. There is an ellipsis in the lan­
guage employed in the Constitution, but its meaning 
is self-evident that it is ‘ the privileges and' immu­
nities of citizens of the United States . . that it 
guaranties. . . .

“ . . . [S]ir, I maintain that the persons thus ex­
cluded from the State by this section of the Oregon 
Constitution, are citizens by birth of the several 
States, and therefore are citizens of the United 
States, and as such are entitled to all the privileges 
and immunities of citizens of the United States, 
amongst which are the rights of life and liberty and 
property, and their due protection in the enjoyment 
thereof by law; . . . .

“ Who, sir, are citizens of the United Statesf 
First, all free persons born and domiciled within 
the United States—not all free white persons, but 
all free persons. You will search in vain, in the 
Constitution of the United States, for that word 
white; it is not there. You will look in vain for it 
in that first form of national Government—the 
Articles of Confederation; it is not there. The omis­
sion of this word—this phrase of caste—from our 
national charter, was not accidental, but inten­
tional. . . .

“ . . . This Government rests upon the absolute 
equality of natural rights amongst men. . . .

“ . . . Who . . . will be bold enough to deny that all 
persons are equally entitled to the enjoyment of 
the rights of life and liberty and property; and that 
no one should be deprived of life or liberty, hut as 
punishment for crime; nor of his property, against 
his consent and without due compensation? . . .

“ The equality of all to the right to live; to the 
right to know; to argue and to utter, according to 
conscience; to work and enjoy the product of their 
toil, is the rock on which that Constitution rests— 
. . . . The charm of that Constitution lies in the great 
democratic idea which it embodies, that all men,



234

before the law, are equal in respect of those rights 
of person which God gives and no man or State may 
rightfully take away, except as a forfeiture for 
crime. Before your Constitution, sir, as it is, as 1 
trust it ever will be, all men are sacred, whether 
white or black. . . . ” 78

Several points must here be emphasized. It will be noted 
that Bingham disavows the color line as a basis for citizen­
ship of the United States; that he regards Milton’s rights 
of communication and conscience, including the right to 
know, to education, as one of the great fundamental natu­
ral “ rights of person which God gives and no man or state 
may rightfully take away,”  and which hence are “ em­
bodied”  also within, and secured by, “ the great democratic 
idea that all men before the law are equal.”  In short, the 
concept and guarantee of the equal protection of the laws 
is already “ embodied”  in the Federal Constitution as of 
1859; this same concept, moreover, embraces 11 the equality 
of all . . . to the right to know” -, and above all, there is no 
color line in the Constitution, even of 1859.

Conclusions

From this consideration of the historical background 
against which the Fourteenth Amendment was written, 
submitted by Congress, and ratified by the requisite num­
ber of states, these important facts develop:

1. To the opponents of slavery, equality was an abso­
lute, not a relative, concept which comprehended that no 
legal recognition be given to racial distinctions of any 
kind. Their theories were formulated with reference to 
the free Negro as well as to slavery—that great reservoir 
of prejudice and evil that fed the whole system of racial 
distinctions and caste. The notion that any state could

,s Cong. Globe, 35th Cong., 2nd Sess. 981-985 (1859) (emphasis 
added throughout).



235

impose such distinctions was totally incompatible with anti­
slavery doctrine.

2. These proponents of absolute equalitarianism 
emerged victorious in the Civil War and controlled the 
Congress that wrote the Fourteenth Amendment. Ten of 
the fifteen members of the Joint Committee on Reconstruc­
tion were men who had antislavery backgrounds.

3. The phrases—“ privileges and immunities,”  “ equal 
protection,”  and “ due process” —that were to appear in 
the Amendment had come to have specific significance to 
opponents of slavery. Proponents of slavery, even as they 
disagreed, knew and understood what that significance was. 
Members of the Congress that formulated and submitted 
the Amendment shared that knowledge and understanding. 
When they translated the antislavery concepts into con­
stitutional provisions, they employed these by now tradi­
tional phrases that had become freighted with equalitarian 
meaning in its widest sense.



Supreme P rinting Co., I nc., 114 W orth Street, N. Y., BEekman  3 - 2320
» 4 9



t



IT



• * *