Henderson v. United States Motion and Brief Amicus Curiae

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IN  THE

Supreme Court of the United States
O ctober Term, 1949

No. 25

E lmer W. H enderson,

v.
Appellant,

T he U nited States oe A merica, I nterstate Commerce 
Commission and Southern R ailway Company.

On A ppeal from  the U nited States D istrict Court 
for the District of M aryland

MOTION AND BRIEF OF AMERICAN JEWISH 
CONGRESS AS AMICUS CURIAE

W ill Maslow,
1834 Broadway,
New York 23, N. Y.,

Attorney for American Jewish Congress 
Amicus Curiae.

Shad P olier,
J oseph B. R obison,
P hilip Baum,

of Counsel.



TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE ............................  1

BRIEF ..............................................................    4

Statement op the Case ......................    4

T he Question to W hich  T his Beiep I s Addressed .... 5

Summary op Argument .....................................................  6

Argument .............................................................................. 8

I. The Doctrine of Plessy v. Ferguson, 163 U.
S. 537, that Separate but Equal Facilities 
Satisfy Requirements of Equal Treatment, 
Should Be Overruled ...................................  8
A. The Framers of the Fourteenth Amend­

ment Intended Thereby to Prohibit Seg­
regation ...................................................  11

B. The Legal Principles Which Formed the
Basis of the Plessy Decision Were Erro­
neous ..............................................    15

C. The Factual Assumptions Made in the
Plessy Decision Were Erroneous .......... 17
1. Segregated facilities necessarily have

a lower value ..................................... 18
2. Even if the facilities are in all re­

spects equal in value, segregation is 
discriminatory because of the adverse 
effects which it has on the Negro com­
munity ................................................ 22

PAGE



11 Index

II. A Eeqnirement of Equality Can Never Be 
Satisfied By Segregated Facilities Because 
the Official Act of Segregation of Itself 
Gives Superior Value to the Facilities As­
signed to the Dominant Group ....................  26
A. An Official Policy of Segregation Would 

Be Unconstitutional If Maintenance of 
Racial Superiority Were Proclaimed as
Its Purpose ..............................................  27

B. The Placing of a Racial or Religious
Group in an Inferior Status by Segrega­
tion Can Be Accomplished Without an 
Express Declaration of Such Status ....  28

C. The Segregation of Negroes Maintains
an Officially Declared Status of Inferior­
ity and Also a Previously Established 
Status of Social Inequality ..................... 31
1. Official declarations of inferiority ....  31
2. The previously established social in­

equality .............................................. 34

III. The Separate But Equal Doctrine Has 
Never Been, and Should Not Now Be, Ap­
plied to Section 3(1) of the Interstate Com­
merce Act by This Court .............................. 36

CoKaLTrsiOK .......................................................    37

PAGE



Index iii

TABLE OF AUTHORITIES

D ecisions

Anderson v. Pantages Theatre Co., 114 Wash. 24
(1921) .................................................................... 35

Atlanta Journal Co. v. Farmer, 48 Ga. App. 273
(1934) .................................................................... 32

Axton Fisher Tobacco Co. v. Evening Post, 169 Ky.
64 (1916) ..............................................................  36

Bailey v. Alabama, 219 U. S. 219 (1911) ................... 28
Baylies v. Curry, 128 111. 287 (1889) ........................  35
Bolden v. Grand Rapids Operating Co., 239 Mich.

318 (1927) ............................................................  35
Buchanan v. Warley, 245 U. S. 60 (1917) .................15,16
Chicago, R. I. and P. Ry. Co. v. Allison, 120 Ark.

54 (1915) ..............................................................  33
Chiles v. Chesapeake & Ohio R. R. Co., 218 U. S.

71 (1909) ...........   36
Clark v. Directors, 24 Iowa 67 (1868) ....................... 35
Collins v. Oklahoma State Hospital, 76 Okla. 229

(1919) .................................................................... 32,33
Connolly v. Union Sewer Pipe Co., 184 U. S. 540

(1902) .........  15
Connor v. Board of Commissioners of Logan County,

Ohio, 12 F. (2d) 789 (1926) ................................ 28
Councill v. Western & Atlantic R. R. Co., 1 I. C. C.

339 (1887) ............................................................  8
Crosswaith v. Bergin, 95 Colo. 241 (1934) .................  35I
Dobbins v. Los Angeles, 195 U. S. 223 (1904) .......... 28
Edwards v. Nashville, C. & St. L. Ry. Co., 12 I. C. C.

247, 249 (1907) .....................................................  9

PAGE



iv Index

PAGE

Ferguson v. Gies, 83 Mich. 358 (1890) ......................  35
Flood v. News and Courier Co., 71 S. C. 112 (1905) .. 32
Guinn and Beal v. United States, 238 U. S. 347 (1915) 28
Gulf, Colorado and Santa Fe Railway Co. v. Ellis,

165 U. S. 150 (1897) ................................... ......... 15
Hall v. De Cuir, 95 U. S. 485 (1877) .......................... 36
Hargrove v. Okla. Press. Pub. Co., 130 Okla. 76

(1928) ...................................................................  32
Heard v. Georgia R. R. Co., 1 I. C. C. 428 (1888) ....  8
Henderson v. Mayor, 92 U. S. 259 (1875) .................  28
Hill v. Texas, 316 U. S. 400 (1942) ............................ 15
Hirabayashi v. U. S., 320 U. S. 81 (1943) .................  14
Hurd v. Hodge, 334 U. S. 24 (1948) ..........................  13
Jackson v. Seaboard Airline Ry. Co., 269 I. C. C.

399 (1948) ...... ......................................................
Jones v. Kehrlein, 194 P. 55 (Cal., 1920) ...................
Jones v. Polk & Co., 190 Ala. 243 (1913) .................
Joyner v. Moore-Wiggins Co., Ltd., 152 App. Div.

266 (N. Y., 1912) .................................................
Kansas City Southern Railway Co. v. Kaw Yalley 

Drainage District, 233 U. S. 75 (1914) ...............
Louisville and N. R. R. Co. v. Ritchel, 148 Ky. 701 

(1912) ...................................................................
McCabe v. A., T. & S. F. R, R. Co., 235 U. S. 151

(1914) ...... ............................................................. 36
M. K. T. Railway Co. of Texas v. Ball, 25 Tex. Civ.

App. 500 (1901) ...................................................  33
Mitchell v. United States, 313 U. S. 80 (1941) ............9, 36
Morgan v. Commonwealth of Virginia, 328 U. S. 373

(1946) ................................................................... 16,36
Myers v. Anderson, 238 U. S. 368 (1915) ................... 28
Neal v. Delaware, 103 U. S. 370 (1881) ....................  28

8
35
32

35

16
(

33



Index v

0 ’Connor v. Dallas Cotton Exchange, 153 S. W. 2d
266 (Tex., 1941) ...................................................  33

Oyama v. California, 332 U. S. 633 (1948) ............... 15,19
Penn. Coal Co. v. Mahon, 260 IT. 8. 393 (1922) .......... 28
People v. Board of Education of Detroit, 18 Mich.

400 (1869) ............................................................  35
Pickett v. Kuchan, 323 111. 138 (1926) ........................  35
Plessy v. Ferguson, 163 U. S. 537 (1896)......8,10,11,14,

15,17, 27, 34, 37
Poindexter v. Greenhow, 114 U. S. 270 (1884) .......... 28
Prowd v. Gore, 207 P. 490 (Cal., 1922) .......................  35
Railroad Company v. Brown, 17 Wall. 445 (1873) ...11,37 
Randall v. Cowlitz Amusements, 194 Wash. 82 (1938) 35
Roberts v. Boston, 5 Cush. 198 (1850) ......................  14
Shelley v. Kraemer, 334 U. S. 1 (1948) .............. 15,-16,17
Slaughter House Cases, 83 IT. S. 36 (1872) ...............  12
Southern Railway v. Greene, 216 IT. S. 400 (1910) .... 15
Stamps & Powell v. Louisville & Nashvillq R. R. Co.,

269 I. C. C. 789 (1948) .........................................  8
State v. McCann, 21 Ohio St. 198 (1872) ................... 14
Strauder v. West Virginia, 100 IT. S. 303, 306 (1879) 31
Stultz v. Cousins, 242 P. 794 (C. C. A. 6th, 1917) ....  32
Takahashi v. Fish & Game Commission, 332 IT. S.

410 (1948) ...........................   15
Tape v. Hurley, 66 Col. 473 (1885) .............................. 35
United States v. Carolene Products, 304 U. S. 144

(1938)   30
Uptown v. Times-Democrat Pub. Co., 104 La. 141

(1900) .....................................................................  32
Village of Euclid v. Ambler Realty Co., 272 U. S.

365 (1926) ...............................................................  28

PAGE



VI Index

PAGE

Williams v. Riddle, 145 Ky. 459 (1911) ....................  32
Wolfe v. Georgia Railway Electric Co., 2 Ga. App.

499 (1907) ..........................................................  32
Wright v. F. W. Woolworth Co., 281 111. App. 495

(1935) ...................................................................  32
Wysinger v. Crookshank, 23 P. 54 (1890) ................  85
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ............... 15,28

Statutes

General Laws under the Seventh Legislature of the
State of Texas, Chapter 121 ...............................

Laws Passed by First Legislature of the State of 
Texas, An Act to Regulate Proceedings in a
District Court, Section 65 ...................................

Laws Passed by the First Legislature of the State 
of Texas, An Act to Provide for the Enumera­
tion of the Inhabitants ......................................

Polizeiverordnung ueber die Kennzeichnung der 
Juden vom 1 September 1941, RGB I, I. S. 547,
Ausgeg. am 5. IX. 1941 ................................ ......

14 Stat. 27 ...................................................................
49 IT. S. C. A. 3(1) .....................................................

M iscellaneous

Bond, Education of the Negro in the American Social
Order (1934) ....................................................... 17

Congressional Globe, 39th Congress, First Session .... 12
Congressional Globe, 42nd Congress, Second Ses­

sion .......................................................................13,14
2 Cong. Rec. 3452 (43rd Cong., 1st Sess.) ...............  14
Davis and Dollard, Children of Bondage (1940) .... 17, 20

31
1|

31

31

21
13

8, 37



Index Vll

PAGE

Deutscher and Chein, The Psychological Effect of 
Enforced Segregation: A Survey of Social Sci­
ence Opinion, 26 The Journal of Psychology, 259
(1948) ............................................................ 22, 23,26

Dollard, Caste and Class in a Southern Town (1937) .-225* 85
Doyle, The Etiquette of Race Relations (1937) ........  19
Du Bois, Dusk of Dawn (1940) .................................  24
Du Bois, Black Reconstruction (1935) ......................  24
Gallagher, American Caste and the Negro College

(1938) ...................................................................  17
Is Racial Segregation Consistent With Equal Pro­

tection of the Laws! 49 Columbia L. R. 629;
(1949) ...................................................................  11

Jenkins, Pro-Slavery Thought in the Old South
(1935) ...................................................................  21

Johnson, The Autobiography of an Ex-Colored Man
(1927) ...................................................................  24

Johnson, Patterns of Negro Segregation (1943)......19*20,
24,34

Mangum, The Legal Status of the Negro (1940) ......  32
McGovney, Racial Residential Segregation by State 

Court Enforcement of Restrictive Agreements, 
Covenants or Conditions in Deeds Is Unconsti­
tutional, 33 Calif. Law. Rev. 5 (1945) ...............  35

McPherson, Political History of the United States
During the Reconstruction (1875) ....................  12

McWilliams, Race Discrimination and the Law, Sci­
ence and Society, Vol. IX, No. 1 (1945) ...... ....... 34

Moton, What the Negro Thinks (1929) .................... 1J, 20
Myrdal, An American Dilemma (1944) .................... 24, 34
Reid, Southern Ways, Survey Graphic (Jan., 1947) 24
Report of the President’s Committee on Civil Rights,

To Secure These Rights (1947) .......................... 11,30



V1U Index

PAGE

Restrictive Covenants and Equal Protection — The 
New Rule in Shelley’s Case, 21 So. Cal. L. R.
358 (1948) ..........................................................J S p f

Segregation in the Public Schools—A Violation of
“ Equal Protection”, 50 Yale L. J. 1059 (1947) lV 

Stone, The Common Law in the United States, 50 1
Harvard L. R. 4 (1936) ...................................... 28

Stouffer, Studies in Social Psychology in World War
II, Volume I (1949) ............................................  20;

Tuck, Not with the Fist (1946) ................................  24;
Woof ter, The Basis of Racial Adjustment (1925) ....  17

I|



IN  THE

Supreme Court of the United States
O ctober Term, 1949

No. 25

E lmer W. H enderson,

v.
Appellant,

T he U nited States of A merica, I nterstate Commerce 
Commission and Southern Railway Company.

On A ppeal from  th e  U nited States D istrict Court 
for the District of M aryland

MOTION OF AMERICAN JEWISH CONGRESS 
FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
•the United States:

The undersigned, as counsel for the American Jewish 
Congress and on its behalf, respectfully moves this Court 
for leave to file the accompanying brief as amicus curiae.

The American Jewish Congress is an organization 
committed to the principle that the destinies of all Ameri­
cans are indissolubly linked and that any act which un­



2

justly injures one group necessarily injures all. Out of 
this firmly held belief, the American Jewish Congress 
created its Commission On Law and Social Action in 1945 
in part “ To fight every manifestation of racism and to 
promote the civil and political equality of all minorities 
in America.”

Believing as we do that Jewish interests are insepara­
ble from the interests of justice, the American Jewish 
Congress cannot remain impassive or disinterested when 
persecution, discrimination or humiliation is inflicted upon 
any human being because of his race, religion, color, 
national origin or ancestry. Through the thousands of 
years of our tragic history we have learned one lesson 
well: the persecution at any time of any minority portends 
the shape and intensity of persecution of all minorities. 
There is, moreover, an additional reason for our interest. 
The special concern of the Jewish people in human rights 
derives from an immemorial tradition which proclaims 
the common origin and end of all mankind and affirms, 
under the highest sanction of faith and human aspirations, 
the common and inalienable rights of all men. The strug­
gle for human dignity and liberty is thus of the very sub­
stance of the Jewish tradition.

We submit this brief amicus because we are convinced 
that the policy of segregation has had a blighting effect 
upon Americans and consequently upon American demo­
cratic institutions. We believe that the doctrine of “ sepa­
rate but equal” has engendered hatred, fear and igno­
rance. We recognize in this triumvirate our greatest 
enemy in the struggle for human freedom. But our con­
cern must not be construed as limited to minorities alone. 
The treatment of minorities in a community is indica­
tive of its political and moral standards and ultimately 
determinative of the happiness of all its members. Our 
immediate objective here is to secure unconditional equal­



3

ity for Americans of Negro ancestry. Our ultimate objec­
tive in this case, as in all others, is to preserve intact the 
dignity of all men.

We have sought the consent of counsel for the four 
parties to the filing of this brief. Counsel for appellant, 
the United States and the Interstate Commerce Commis­
sion have consented. Counsel for the Southern Railway 
Company has refused consent.

Dated, New York, New York, October 17, 1949.

W ill. Maslow,
Attorney for American Jewish Congress.



IN  TH E

Supreme Court of the United States
O ctober Term, 1949

No. 25

E lmer W. H enderson,

v.
Appellant,

T he U nited States o f  A merica, I nterstate Commerce 
Commission and Southern Bailway Company.

On A ppeal from  the U nited States District Court 
for the D istrict of M aryland

BRIEF OF AMERICAN JEW ISH CONGRESS 
AS AMICUS CURIAE

The American Jewish Congress respectfully submits 
this brief, as amicus curiae, in support of appellant. Our 
interest in the issues raised by this case is set forth in 
the motion for leave to file annexed hereto.

Statement of the Case

This proceeding originally arose out of the refusal of 
the Southern Bailway, on May 17, 1942, to serve appellant, 
a Negro, in one of its dining cars. The various steps in 
the subsequent proceedings are fully set forth in the

[ 4 ]



5

appellant’s brief. Because the railroad subsequently 
changed its rules, the issue presently before this Court 
is sufficiently revealed by the following facts:

The railroad’s most recent rules, effective March 1, 
1946, provide that, after certain structural changes are 
made in its diners, one of the thirteen tables in each diner 
will be reserved absolutely for Negroes, and will be sep­
arated from the rest of the car by a five-foot partition. 
No white passengers will be served at this one table and 
no Negro passengers will be served at the other twelve 
tables.

On September 5, 1947, the Interstate Commerce Com­
mission held that this rule satisfied Section 3(1) of the 
Interstate Commerce Act. Henderson v. Southern Rail­
way, 269 I. C. C. 73. That decision was upheld by a 
three-judge District Court (Henderson v. Southern Rail­
way, 80 F. Supp. 32, D. C. Md., 1948), Judge Soper dis­
senting, and the present appeal is from the decision of 
that Court.

The Question to Which this Brief Is Addressed

This brief is addressed solely to the question whether 
the requirements of equality contained in either the Fifth 
and Fourteenth Amendments to the United States Con­
stitution or Section 3(1) of the Interstate Commerce Act, 
49 U. S. C. 3(1), are satisfied by affording “ separate but 
equal” facilities to Negro and white passengers on inter­
state railroads.



6

Summary of Argument

I. In holding that a requirement of equal treatment v  
can be satisfied by providing segregated facilities, the 
decision in Plessy v. Ferguson was wrong historically, 
legally and factually.

A. The Court erred historically in finding that 
the Fourteenth Amendment was not “ intended to 
abolish distinctions based on color,” <2 j

y 4 t* % £ Jt h  $ w#

B. The Court erred as a matter of law in holding 
that segregation laws could be sustained either as an 
exercise of the police power or on the theory that 
physically equal facilities were necessarily equal in 
the Constitutional sense.

C. Assuming that segregated facilities can be 
equal, the Court erred as a matter of fact in conclud­
ing that officially imposed segregation does not place 
a badge of inferiority on the Negro race.

(1) Segregated facilities necessarily have an 
inferior value if they are assigned to a group in 
the community which the dominant group regards 
as inferior. In determining the value of a particu­
lar piece of property, the law examines not only 
its physical characteristics but also any other in­
tangible factors which are given weight by the com­
munity at large. When the facilities are used ex­
clusively by a group which the community regards 
as inferior, they become inferior in value.

(2) Even if the facilities are in all respects 
equal in value, segregation is discriminatory be­
cause of the adverse effect which it has on the 
Negro community. Recent studies reveal unanim­
ity of opinion among students of race relations



that segregation causes psychological damage to the 
individual members of the Negro community which 
they would be spared if segregation were not im­
posed.

II. A requirement of equality can never be satisfied 
by segregated facilities because the official act of segrega­
tion of itself gives superior value to the facilities assigned 
to the dominant group,

A. An official policy of segregation would unques­
tionably be unconstitutional if the official body which 
imposed it simultaneously proclaimed that mainte­
nance of racial superiority was its purpose. '

B. The  ̂placing of a racial or religious group m 
inferior status by segregation can be accomplished 
without such an express declaration of status. Other­
wise it would be easy to evade the constitutional 
restraint. The implicit declaration of inferiority can 
be made either in other official acts or by incorporat­
ing in the segregation policy a previously existing 
social stratification.

C. The segregation of Negroes does in fact main­
tain an officially declared status of inferiority as well 
as a previously established status of social inequality.

(1) Official declarations of inferiority are found 
in various statutes and in judicial decisions holding, 
for example, that it is libelous per se to call a. white 
man a Negro and that a white man required to ride 
in a Negro coach may recover damages.

(2) The previously established social inequality 
is shown by the unanimous findings of students of 
race relations.



8

HI. The separate but equal doctrine has never been, 
and should not now be, applied to Section 3(1) of the 
Interstate Commerce Act by this Court. This case can be 
decided in favor of appellant without overruling the hold­
ing in Plessy v. Ferguson that segregated facilities may 
be provided without violating the Fourteenth Amendment.

A R G U M E N T

POINT I

The doctrine of Plessy v. Ferguson, 163 U. S. 537, 
that separate but equal facilities satisfy requirements 
of equal treatment, should be overruled.

Subsection 1 of Section 3 of the Interstate Commerce 
Act provides that:

“ It shall be unlawful for any common carrier sub­
ject to the provisions of this chapter to make or give 
any undue or unreasonable preference or advantage 
to any particular person, company, firm, corporation, 
or locality, or any particular description of traffic, in 
any respect whatsoever, or to subject any particular 
person, company, firm, corporation, or locality, or any 
particular description of traffic, to any undue or un­
reasonable prejudice or disadvantage in any respect 
whatsoever.”

Since the question was first raised, the Interstate 
Commerce Commission has consistently held that this pro­
vision forbids discrimination against Negro passengers 
because of their race. Coimcill v. Western db Atlantic R. 
R. Co., 1 I. C. C. 339; Heard v. Georgia R. R. Co., 1 I. C. 
C. 428; Jackson v. Seaboard Air Line Ry. Co., 269 I. C. C. 
399 ; Stamps db Powell v. Louisville do Nashville R. R. Co.,



9

269 I. C. C. 789. See also Mitchell v. United States, 313 
U. S. 80, 95. In Edwards v. Nashville, C. & St. L. By. Co., 
12 I. C. C. 247, 249, the principle was thns stated:

“ If a railroad provides certain facilities and ac­
commodations for first-class passengers of the white 
race, it is commanded by the law that like accommo­
dations shall be provided for colored passengers of 
the same class. The principle that mnst govern is 
that carriers mnst serve equally well all passengers, 
whether white or colored, paying the same fare. Fail­
ure to do this is discrimination and subjects the 
passenger to 'undue and unreasonable prejudice and 
disadvantage.’ ”

Section 3(1) of the I. C. C. Act, however, is not the 
only prohibition of discrimination which has been invoked 
here. The United States Government, in its brief as a 
party to this case, suggests that the Fifth Amendment to 
the United States Constitution also applies because the 
alleged discrimination was approved by an agency of the 
Federal Government, the I. C. C. (U. S. Brief, pp. 14-15). 
We agree. Indeed, the Court below itself recognized 
that the railroad’s regulations were “ directly approved 
by” the I. C. C., and hence “ are to be treated, for the 
purposes of this case, as in effect the Commission’s rules.” 
63 F. Supp., at page 914.

We suggest further, however, that the equal protection 
clause of the Fourteenth Amendment also applies. Bail- 
roads enjoy a monopolistic position protected by both the 
State and Federal governments. We believe that any 
such governmentally protected monopoly is forbidden by 
the Constitution from engaging in racial discrimination. 
It is true that this Court has never so held but that is 
only because virtually all such monopolies are subject to 
common law or statutory prohibitions of discrimination. 
It is unthinkable that, if these prohibitions were removed 
by statute, a railroad could refuse to serve any passenger 
solely because of race.



10

We shall not elaborate on these points because this 
brief is restricted to a single question which is common to 
all these prohibitions of discrimination; namely, whether 
they are satisfied when “ separate but equal” facilities 
are offered. In the Plessy ease, this Court held that they 
were, at least with respect to the Fourteenth Amendment. 
While the present ease can probably be decided without 
overruling the Plessy case, as we show below, the factual 
premises and legal conclusions of that decision can not 
be ignored altogether. We turn first, therefore, to an 
examination of those premises and conclusions.

The result in the Plessy case rested on what we believe 
to have been a series of errors. First, the Court made 
the startling assumption that “ in the nature of things it 
[the Fourteenth Amendment] could not have been in­
tended to abolish distinctions based on color” (162 II. 8., 
at 544). We show below that this statement is histori­
cally false (pp. 10-14). The Court then held that seg­
regation could be legally justified as an exercise of the 
police power or on the ground that the facilities offered 
are in fact equal and thus satisfy the constitutional require­
ment of equality. We discuss this argument at pages 
15-16. Finally, the Court recognized that the require­
ment of equality could not be satisfied by a system of 
segregation which created or maintained inequality. The 
Court declared that “ Every exercise of the police power 
must be reasonable and extend only to such laws as are 
enacted in good faith and for the promotion of the public 
good and not for the annoyance or oppression of a par­
ticular group.” 163 U. S., at 550. In finding, however, 
that a law requiring segregation on railways was consti­
tutional, it made the factual and sociological assumption 
that such segregation would “ not necessarily imply the 
inferiority of either race to the other.” Id., at 544. We 
show below (pp. 17-26) that this assumption has been 
exploded in the 50 years which have elapsed since it was 
made.



11

The net effect of the Plessy decision was to measure 
the constitutional command of equality mechanically in 
terms of physical dimensions and quantity. As a result 
it has infused rigid, caste stratifications into our laws, our 
institutions, our conduct and our habits of perception 
until “ the Negro is segregated in public thought as well 
as public carriers.” Moton, What the Negro Thinks, 
1929, page 55. We submit that what the President’s Com­
mittee on Civil Eights called “ the ‘separate but equal’ 
failure” (Report, To Secure These Rights, 1947, p. 79) 
should be reexamined by this Court and that Plessy v. 
Ferguson should be overruled.

A. T h e  F ram ers  of th e  F o u rteen th  A m en d m en t In ten d ed  
T h e reb y  to  P ro h ib it S eg reg atio n

Plessy v. Ferguson cannot be squared with the temper 
and philosophy of the 1860’s which created the Fourteenth 
Amendment. See Note, Is Racial Segregation Consistent 
With Equal Protection of the Laws f  49 Columbia L. E. 629. 
It is in fundamental conflict, for example, with Railroad 
Co. v. Brown, 17 Wall. 445. In that case, Brown, a Negro, 
sued for damages for exclusion from a railroad car in 
the District of Columbia. The Federal statute, 12 Stat. 
805, enacted in 1863, in the midst of the Civil War, author­
ized the railroad to operate and provided that “ no person 
shall be excluded from the cars on account of color.” The 
railroad ran two identical cars on a train, one for Negroes 
and the other, from which it excluded Brown, for whites. 
The trial Court specifically refused to instruct, as the rail­
road requested, that if the cars were “ really safe, clean 
and comfortable,” the railroad should prevail. In the 
trial court the plaintiff was awarded substantial damages 
for the exclusion. This Court affirmed, terming the segre­
gation “ an ingenious attempt to evade compliance with 
the obvious meaning of the requirement.” It held that



12

to force Negro passengers into separate cars was dis­
crimination incompatible with the equality demanded by 
Congress. Thus, this Court held that separate but equal 
accommodations have the same legal effeet as the total 
exclusion of Negroes from transportation.

That those responsible for the enactment of the Four­
teenth Amendment rejected segregation was further evi­
denced by the passage of the Civil Rights Act of 1866. 
Like the Amendment itself, this Act was designed to 
eliminate the distinctions contained in the Black Codes 
passed by the Southern State governments during the 
post-Appomattox months of 1865. Slaughter House Cases, 
83 U. S. 36, 70. These codes, among other provisions, 
placed limitations on Negro rights to own property, to 
institute law suits or to testify in any proceedings. They 
applied greatly different penalties to Negroes than to 
whites for the same offenses. See McPherson, Political 
History of the United States During Reconstruction, 
Chapter 4. To prevent these distinctions, a civil rights 
bill was introduced forbidding these and related practices 
and forbidding also, in a general phrase, any discrimina­
tion as to civil rights. S. 61, 39th Congress, First Session. 
Senator Howard, who had participated in drafting the 
Thirteenth Amendment, supported the bill, declaring that 
“ in respect to all civil rights, there is to be thereafter 
no distinction between the white race and black race.” 
Congressional Globe, 39th Congress, First Session, 504. 
Senator Trumbull, who introduced the civil rights bill, 
asserted “ * * * the very object of the bill is to break 
down all discrimination between the black men and white 
men.” Ibid., page 599. The bill passed the Senate but 
ran into difficulties in the House, partly because it was 
felt that “ civil rights” encompassed a scope too broad to 
be supported by the Thirteenth Amendment. The final 
bill, therefore, was limited to the elimination of the named 
abuses with the general and vague reference to civil rights



13

omitted. 14 Stat. 27. The significance of this statute, in 
the interpretation of the Fourteenth Amendment, has re­
cently been described by this Court (Hurd v. Hodge, 334 
U. S. 24, 32, footnotes omitted):

“ Both the Civil Bights Act of 1866 and the joint 
resolution which was later adopted as the Fourteenth 
Amendment were passed in the first session of the 
Thirty-Ninth Congress. Frequent references to the 
Civil Rights Act are to be found in the record of the 
legislative debates on the adoption of the Amendment. 
It is clear that in many significant respects the statute 
and the Amendment were expressions of the same 
general congressional policy.”

Alm o st immediately following ratification of the Four­
teenth Amendment and pursuant to the grant of authority 
contained in its fifth section, Senator Sumner of Massa­
chusetts introduced a proposal expanding and articulating 
the rights implicit in the new amendment. During argu­
ment on this hill, which later became the Civil Bights Act 
of 1875, Sumner enunciated his attitude toward racial 
segregation. He spoke as one of the leaders who had 
achieved the passage of the Fourteenth Amendment and 
who might be supposed to know it best; he was supported 
by what he believed was the unavoidable intention of the 
Amendment. Sumner lashed out at what he called the 
“ excuse, which finds Equality in separation” by declaring 
(Cong. Globe, 42nd Cong., 2nd Sess., 382-383):

“ Separate hotels, separate conveyances, separate 
theaters, separate schools, separate institutions of 
learning and science, separate churches, and separate 
cemeteries — these are the artificial substitutes for 
Equality; and this is the contrivance by which a 
transcendent right, involving a transcendent duty, is 
evaded. * * * Assuming what is most absurd to as­



14

sume, and what is contradicted by all experience, that 
a substitute can be an equivalent, it is so in form only 
and not in reality. Every such attempt is an indig­
nity to the colored race, instinct with the spirit of 
Slavery, and this decides its character. It is Slavery 
in its last appearance.”

In the debates which ensued, Sumner’s views were 
upheld and the leading cases on which this Court subse­
quently relied in Plessy v. Ferguson, although pressed 
upon Congress, were rejected as unsound. Roberts v. 
Boston, 5 Cush. 198 (1850), and State v. McCann, 21 Ohio 
St. 198 (1872), both of which defend segregation prac­
tices, were mentioned by name and expressly refuted. See 
Congressional Globe, 42nd Cong., 2nd Sess,, at 3261, and 
2 Congressional Eecord 3452 (43 Cong., 1st Sess.). Yet, 
in concluding that, “ in the nature of things,” the Four­
teenth Amendment was not “ intended to abolish distinc­
tions based upon color” (163 U. S., at 544) this Court 
explicitly relied upon the Roberts case!

Nor may the Plessy theory that the Fourteenth Amend­
ment was not intended to abolish race distinctions be 
squared with the recent decisions of this Court. In 
Sirabayashi v. U. S., 320 IT. S. 81, 100 (1947), it was 
said:

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

Except for the decisions which rely uncritically upon 
Plessy v. Ferguson, this Court has consistently maintained 
that the Fourteenth Amendment prevents States from



15

establishing racial distinctions as a basis for general 
classifications. Takahashi v. Fish <0 Game Commission, 
332 U. S. 410, 420; Oyama v, California, 332 II. S. 633, 
640, 646; Shelley v. Kraemer, 334 U. S. 1, 20, 23; Tick Wo 
v. Hopkins, 118 U. S. 356, 373, 374; Buchanan v. Warley, 
245 U. S. 60, 82; Hill v. Texas, 316 U. S. 400, 404. These 
cases merely embody the basic constitutional principle 
applicable in all other areas that governmental classifica­
tions must be based upon a significant difference having 
a reasonable relationship to the subject matter of the 
statute. Southern Railway Co. v. Greene, 216 U. S, 400, 
417; Gulf, Colorado <0 Santa Fe Railway Co. v. Ellis, 165 
U. S. 150, 155; Connolly v. Union Sewer Pipe Co., 184 U. 
S. 540, 559, 560.

More specifically, the Plessy segregation principle can­
not be squared with Buchanan v. Warley, supra, and 
Shelley v. Kraemer, supra, in both of which this Court 
refused to apply the separate but equal doctrine to hous­
ing. It did so not on the theory that land and houses are 
sui generis, but on the broad ground that “ equal protec­
tion of the law is not achieved through the indiscriminate 
imposition of inequalities.” Shelley case, 334 U. S., at 22. 
This terse holding, as has been cogently argued, com­
pletely destroys the basis of the Plessy decision. Restric­
tive Covenants and Equal Protection—The New Rule in 
Shelley’s Case, 21 So. Cal. L. R. 358 (1948).

B. T h e  L egal P rin c ip les  W h ich  F o rm ed  th e  Basis of 
th e  P lessy  D ecision W ere  E rroneous

The Plessy decision sought to justify state segregation 
statutes both as exercises of the police power and on the 
theory that, since they restricted all races alike, they sat­
isfied the constitutional requirement of equality (163 U. 
S., at 544, 546). Neither theory bears examination today.

Particularly vulnerable is what this Court recently 
called the “ convenient apologetics of the police power.”



16

Morgan v. Virginia, 328 U. S. 373, 380, citing Kansas 
City Southern Railway Co. v. Kaw Valley Drainage Dis­
trict, 233 U. S. 75, 79. In Buchanan v. Warley this Court 
said (245 U. S., at 74): . . the police power, broad
as it is, cannot justify the passage of a law or ordinance 
which runs counter to the limitations of the Federal Con­
stitution . . . ” See also Shelley v. Kraemer, 334 II. S., 
at 21.

With the elimination of the police power, the Plessy 
doctrine must rest on the sole groun that segregation 
operates with equal stringency on the groups doing the 
segregating as well as the groups being segregated. In­
deed, it has been noted that “ the inclusion of both bases 
in a single sentence [in the Plessy opinion] leads one to 
wonder whether Mr. Justice Brown ever intended to 
enunciate the police power basis as an independent propo­
sition sufficient alone to support the statute or whether 
the basis under which the statute was upheld as a valid 
exercise of the police power did not rest on the conclusion 
that the statute did in fact operate equally on all races.” 
Note, 21 So. Cal. L. It. 358, 369.

This same article goes on to observe:

“ Despite Mr. Justice Brown’s allusion to the State 
police power, subsequent decisions of the Court 
clearly indicated that it was the fact of equality of 
application upon which it would rely. The question 
next arose with respect to the Oklahoma ‘Separate 
Coach Case. ’ There the statute, in addition to impos­
ing the requirement of equal but separate accommo­
dations for Negroes and whites, provided that the 
carrier might maintain sleeping and dining cars for 
white passengers and not for Negroes, if there should 
not be sufficient demand for such facilities by Negroes 
to make their maintenance practicable. The Court 
upheld the statute insofar as it provided for segrega­
tion into equal accommodations, but held that the



17

statute could not authorize discrimination in the 
maintenance of luxury facilities, since the discrimina­
tion could be maintained only if it applied equally to 
all races. Again, equality of application was made 
the sine qua non of validity, without reference to any 
reasonable police power basis.”

But the “ equality” theory has also been destroyed by 
recent decisions by this Court. In particular, it runs afoul 
of the statement in the Shelley case that equality is not 
achieved by “ indiscriminate imposition of inequalities” 
(supra, p. 15). If this obvious principle is consistently 
applied, the Plessy doctrine must fall.

C. T he Factual Assum ptions M ade in th e  P lessy  
D ecision W ere Erroneous

The Plessy decision itself recognized that segregation 
would be unconstitutional if it was designed to or did 
create a caste system. However, it made the basic factual 
assumption that it was a “ fallacy [to assume] that the 
enforced separation of the two races stamps the colored 
race with a badge of inferiority” (163 U. S., at 551).

The best that can be said for this statement is that it 
was handed down over fifty years ago at a time when the 
results of applying the separate but equal doctrine could 
only be surmised. In the ensuing decades, the failure of 
that prediction has become manifest. If proof of this 
were necessary, it has been supplied by the developed 
techniques of the social scientists, all of whom are agreed 
that segregation has profoundly adverse effects on the 
Negro community. Segregation In Public Schools — A 
Violation of “Equal Protection,’’ 50 Yale L. J. 1059, 1061; 
Gallagher, American Caste and the Negro College (1938); 
Davis and Dollard, Children of Bondage, 1940; Woofter, 
The Basis of Racial Adjustment (1925); Bond, The Edu-



18

cation of the Negro in the Americcm Social Order (1934). 
Surely this Court cannot continue to extend judicial ap­
proval to a notion which has been thoroughly discredited 
in that laboratory which is the nation itself.

(1) Segregated F acilities Necessabily H ave 
a L ower Value

In other areas less controversial and perhaps less sig­
nificant, our legal system has recognized that mere iden­
tity of physical facilities does not necessarily amount to 
equality either in the economic, political or legal sense.
The law would not hold, for example, that an estate has 
been divided equally between two children each receiving 
one of the two identical houses comprising the estate, if 
one of the houses were located in a busy banking district 
and the other 50 miles from the nearest railroad station.
The result would be the same even if the two identical 
houses were located on the same street opposite each 
other, but if, for some reason, one side of that street were 
fashionable and sought after, the other neglected and re­
jected. Equality is determined in fact and in law not by 
the physical identity of things assigned in ownership, use 
or enjoyment but by the identity or substantial similarity 
of their value.

These legal principles apply not only to property 'Jm, 
rights but also to political and civil rights. American law 
demands, in the enjoyment by persons of government- 
furnished facilities, an equality not less real and substan­
tial than the one it exacts for the protection of heirs, 
partners or stockholders. “ In approaching cases, such as 
this one, in which federal constitutional rights are as­
serted, it is incumbent on us to inquire not merely whether 
those rights have been denied in express terms, but also 
whether they have been denied in substance and effect.
We must review independently both the legal issues and 
those factual matters with which they are commingled ’ “



19

(Oyama v. California, 332 U. S. 633). In calling for 
“ equal protection”, or for “ equal facilities”, or for the 
outlawing of “ undue or unreasonable prejudices or dis­
advantages” , the Constitution and the laws of the United 
States call for genuine equality of protection and not for 
a merely formal or physical identity of treatment.

The important factors to be considered in assessing 
the equality of the treatment accorded various groups in 
our society are the ideas or expectations which are stimu­
lated by that treatment, and the conception conveyed to 
each minority of the role it is being called upon to play. 
It is undeniably true that in the South, when the Negro 
was considered chattel property, any relation of the most 
intimate degree between white and Negro could be entered 
into with impunity. Even today Negro servants still may 
approach as close as necessary to the white persons being 
served without untoward social consequence. Yet it is 
equally true that merely “ shaking a black hand may be 
very repulsive to a white man if he surmises that the 
colored man conceives of the situation as implying equal­
ity.” Johnson, Patterns of Negro Segregation, 1943, page 
208. Clearly it is the social definition of the situation that 
accounts for the difference. Those who insist upon the 
caste system in our society freely and unstintingly agree 
to the ritual of equal physical facilities so long as some­
how there is also an accompanying communication that 
inferiors are to remain inferiors.

Segregation provides the ready vocabulary for that 
communication. It is a vocabulary effectively understood 
by all. Segregation provides a graphic and literal re­
sponse to the demand of the white world that Negroes be 
kept “ in their place.” To the whites the enforced sepa­
ration of races is clearly understood as a symbolic affirma­
tion of white dominance, dominance which, to keep itself 
alive, demands as tribute the continuous performance of 
the racial etiquette. See Doyle, The Etiquette of Race



20

Relations (1937). Similarly, Negroes appreciate the im­
plications of segregation (Stouffer, Studies in Social Psy­
chology in World War 11, Vol. 1, p. 566), resent its slur 
(Moton, supra, pp. 238-239), and resist it as a none too 
subtle mechanism for anchoring them in inferiority (Davis 
and Dollard, Children of Bondage [1940], p. 245).

A Southern attorney has observed of Negroes, “ I 
don’t object to their having nice things, but they would 
not be satisfied with the finest theatre in the world . . . 
They don’t want things for themselves.” Johnson, op. 
cit., supra, at page 217. This is, of course, both accurate 
and perceptive. Negroes desire access to the world of all, 
not to one just as good.

It is, therefore, easy to understand the general belief 
in both the white and Negro communities that the facili­
ties relegated to the segregated group are made inferior 
by the very act of separation. We have long known that 
the value and desirability of many objects, facilities, traits 
or characteristics may depend not so much upon their 
intrinsic qualities or defects, advantages or shortcomings 
as upon their association with, or use by, persons enjoying 
a certain reputation. The desirability of a beautiful re­
sort may be lessened by its being visited by people deemed 
of “ low” social standing. If a group considered “ infe­
rior” by the prevailing community sentiment adopts any 
given color of garment, accent of speech, or place of 
amusement, that color, accent or place will automatically 
be shunned by the majority and become less desirable or 
valuable.

If the Nazis, while proclaiming the essential inferiority 
of the “ Jewish Race”, had compelled Jews to wear clothes 
of one color while reserving another to the master race, 
it could not have been said that Jews received equal cloth­
ing facilities. Nor would the discriminatory and humiliat­
ing character of the measure depend on whether the colors 
were brown for the Jews and black for the others, or vice



21

versa. The exclusive allocation of a given color, any 
color, to a race declared “ inferior” would make that color 
less desirable. The inferiority thus transmitted from the 
wearer to the garment would destroy the genuine “ equal­
ity” of the furnished facilities. The Nazis understood 
this fully; they achieved much the same effect when they 
imposed on Jews the wearing- of the Yellow Star of David. 
Polizei-verordnung uber die Kennseichnung der Juden 
vom 1., September, 1941, RGBI, I. S. 547, Ausgeg. am 5. 
IX. 1941.

We do not agree that the physical facilities furnished 
segregated groups are ever in fact equal (infra, pp. 29-30). 
But even assuming, arguendo, that those enforcing the 
segregation policy were lavish in their expenditures, they 
would not thereby attain real equality of treatment. The 
five-foot partition in the present case dividing the dining 
car into Negro and white portions serves a more funda­
mental purpose than the mere physical separation of white 
from Negro and the elimination of any likelihood of phys­
ical contact. It serves as a ceremonial separation of the 
dominant from the subordinate and it marks the outside 
limits beyond which tolerance is impermissible. Under 
these circumstances the quality of the silverware, glass­
ware, or linen becomes irrelevant. Separation stamps the 
trappings of equality with the unmistakable sign of infe­
riority.

In sum, segregation is the artifice by which a dominant 
group assures itself of its own worth by insisting on the 
inferiority of others. Segregation, like slavery, has as 
its function “ the fact that it raises white men to the same 
general level, that it dignifies and exalts every white man 
by the presence of a lower race” . Jefferson Davis, quoted 
in Jenkins, Pro-Slavery Thought in the Old South (1935), 
at page 192.



22

(2) E ven ip the F acilities Abe in All Respects E qual 
in  Value, Segregation I s Discriminatory B ecause op 
the Adverse E ffects W hich  I t H as O n  the Negro 
Community

The unconstitutional inequality of segregation may he 
shown without reference at all to the facilities provided. 
The inequality appears in the depressing effect which it 
has on the individual members of the Negro community.

A survey of professional sociological, anthropological 
and psychological opinion on this subject has been con­
ducted by Drs. Max Deutscher and Isadore Chein of the 
Commission on Community Interrelations of the Ameri­
can Jewish Congress. Eight hundred and forty-nine 
social scientists were polled, including the entire member­
ship of the American Ethnological Society, the Division 
of Personality and Social Psychology of the American 
Psychological Association, and all of the members of the 
American Sociological Society who listed race relations 
or social psychology as their major field of interest. Re­
turns were received from 517, or 61% of the number sent. 
90% of the respondents indicated their opinion that en­
forced segregation has detrimental psychological effects 
on segregated groups even though equal facilities are 
provided. 4% failed to answer the item and only 2% indi­
cated that segregation is free of such detrimental effects. 
Deutscher and Chein, The Psychological Effects of En­
forced Segregation: A Survey of Social Science Opinion, 
26 The Journal of Psychology 259 (1948).

On the basis of what they have seen and know, these 
social scientists united in rejecting the separate but equal 
doctrine as a serviceable formula. In responding, many 
of them amplified their answers with additional comment. 
Those who conducted the survey remark that “ the gist 
of these comments was the emphasis on the essential 
irrelevance of the physical attributes of the facilities fur-



23

nished” . Deutscher and Chein op. tit., supra, at page 
280. The comments are quoted extensively in the article.

The detrimental psychological effect is not hard to ex­
plain. Bearing the approval of this Court, the “ separate 
but equal” doctrine has supplied the rationale for a de­
tailed and exhaustive oppression of the Negro population 
of the South. Dr. Reid has shown that where racial seg­
regation is established:

“ . . . every aspect of life is regulated by the laws 
on race and color. From birth through education and 
marriage to death and burial there are rules and reg­
ulations saying that you are born ‘ white ’ or ‘ colored ’; 
that you may be educated, if colored, in a school sys­
tem separated on the basis of race and ‘as nearly 
uniform as possible’ with that available for whites; 
that you may marry a person of your choice only if 
that person is colored, this being the only celebration 
of marriage a colored minister of the gospel may per­
form; and that when you die (in Atlanta, at least) 
you may not be buried in a cemetery where whites are 
interred.

“ But that isn’t all. Between birth and death col­
ored persons find that the law decrees that they shall 
be separated from white persons on all forms of 
transportation, in hotels or inns, eating places, at 
places of recreation or amusement, on the tax books, 
as voters, in their homes, and in many occupations.

“ To be specific, it is a punishable offense in 
Georgia for a barber shop to serve both white and 
colored persons, or for Negro barbers to serve white 
women or girls; to bury a colored person in a ceme­
tery in which white people are buried; to serve both 
white and colored persons in the same restaurants 
within the same room, or anywhere under the same 
license. Restaurants are required to display signs 
reading Licensed to serve white people only, or



24

Licensed to serve colored people only. The law also 
declares that wine and beer may not be served to 
white and colored persons ‘within the same room at 
any time’. Taxis must he marked For White Passen­
gers Only, or For Colored Passengers Only. There 
must be white drivers for carrying white passengers 
and colored drivers for carrying colored passengers” 
(Ira de A. Reid, Southern Ways, Survey Graphic, 
Jan. 1947, p. 39).

Dr. Reid’s list, of course, is not exhaustive. See, for 
example, the first six chapters of Johnson, op cit., supra. 
Myrdal asserts that no one can yet estimate the extent 
of discriminatory practices in the United States. Myrdal, 
An American Dilemma (1944), at 1359.

This carefully contrived web of deprivation and dis­
tinction confronts the Negro at every turn. The “ thou­
sand and one precepts, etiquettes, taboos and disabilities 
[which] * * * express the subordinate status of the Negro 
people and the exalted positions of the whites” (Myrdal, 
op. cit., supra, 66) have a shattering effect upon the Negro 
personality. DuBois, Dusk of Dawn (1940), pages 130- 
131. “ The Negro in America and in general is an average 
and ordinary human being who under a given environment 
develops like other human beings.” Black Reconstruction 
(1935), Foreword. He is, therefore, understandably warped 
by living in a world which blatantly advertises its convic­
tions of the Negroes’ inferiority. Segregation stimulates 
a variety of unhealthy responses. It may tend to induce 
withdrawal, thus extending the isolation of Negroes in 
America and widening the gap between the racial com­
munities. Myrdal, op. cit., supra, page 28. “ The Negro 
genius is imprisoned in the Negro problem” (Ibid.). See 
also Johnson, An Autobiography of an Ex-Colored Man 
(1927), p. 21; Tuck, Not With The Fist (1946), p. 107.

Segregation has equally devastating effects when it 
induces submission rather than rebellion—when it leads to



25

acceptance of the inferior status defined in the institutions 
of the dominant community. This attitude invariably 
stultifies Negro growth and encourages indifference, 
apathy and unwillingness to compete.

“ Accommodation involves the renunciation of pro­
test and aggression against undesirable conditions of 
life and the organization of character so that protest 
does not appear but acceptance does. It may come to 
pass in the end that the unwelcome force is idealized, 
that one identifies with it and takes it into the per­
sonality, that some time it even happens that what is 
at first resented and feared is finally loved. In this 
case a unique alteration of the character occurs in the 
direction of masochism”. Dollard, Caste and Class 
in a Southern Town, at page 255.

Finally, the deleterious effects of segregation find in­
exorable expression in a deep sense of personal insecur­
ity. Fear of his own inadequacy turns the Negro against 
the whites who have inflicted his frustration, against his 
own people for providing a heritage of pain or against 
himself in an over-weaning guilt for his own secret wishes 
to he free of his burden.

One psychologist has noted particularly the deep re­
sentment induced by the discrepancy between the vaunted 
American creed that all are created equal and the hitter 
fact of subjugation through segregation:

“ The effects of this enforced status on the level of 
self-esteem, on feelings of inferiority and personal 
insecurity, the gnawing doubts and the compensatory 
mechanisms, the blind and helpless and hard to han­
dle more or less suppressed retaliatory rage, the dis­
placed aggression and ambivalence toward their own 
kind with a consequent sense of isolation and of not 
belonging anywhere—all of these and much more are 
bad enough, but the ambiguity of status created by



26 jr

a society which insists on. the fact that all men are 
horn free and equal, and then turns about and acts 
as if they were not is eyen worse. The constant 
reminder—and even boasting—of this equality acts 
like salt upon a raw vjbund and, more basically, places 
them in a profoundly ambiguous and unstructured 
situation. Human beings simply cannot function effi­
ciently in such situations if they have strong feelings 
and are strongly motivated—as many, if not most or 
all, member's of discriminated against minority groups 
are—with regard to these situations.” Deutscher and 
Chein, op. tit., supra, at page 272.

Psychic injury always accompanies segregation. We 
think it patent that as between a system which imposes 
suet)/ penalties and one which does not, there can be no 
talk of equality.

POINT HE
A requirement of equality can never be satisfied by 

segregated facilities because the official act of segrega­
tion of itself gives superior value to the facilities as­
signed to the dominant group.

We have shown above that the separate but equal doc­
trine has in fact resulted in inequality and the creation of 
a caste system. We show here that that is an inevitable 
result of officially imposed segregation and that since the 
discrimination flows from official action, it is unconstitu­
tional.

the segregation in the. pmsent case was. orjgi- 
mulatgd'''by aVprivatjylTgency\ the railrp&d, it has 
; status he for 6 tide Court as Woveprfnenta lly in- 
gfegation. We'Hiave stated the''‘reasons for this



27

equivajprf^e above namely,,,Jhat .the railroad’s regu-
latkjd^wasXappEofed by l$he I^O. C. aitd that* the railprtid 
is/a state-cheated monopoly which. maV -̂riot discriminate.

A. A n Official P olicy  of Segregation  W ould Be Unconsti­
tutional if M aintenance of R acial Superiority W ere  
Proclaim ed as Its Purpose

It can hardly be disputed that an official regulation pro­
viding for the confinement of any racial or religious group 
to separate cars or to certain portions of a single car upon 
the declared theory that the group is inferior would be 
discrimination. That much is virtually conceded in the 
Plessy decision {supra, p. 17). The official declaration 
of inferiority would of itself establish an inferiority of 
value substantial enough to have constitutional signifi­
cance {supra, p. 18). While the declaration of inferiority 
alone might be immune to constitutional attack it becomes 
subject to judicial restraint when accompanied by action 
having a discriminatory effect. The formal assignment of 
separate areas based on a formal statement of inferiority 
would be an assignment of facilities inferior per se regard­
less of their physical identity with the facilities assigned 
to the dominant group.

The situation as here described would not be mere 
social inequality. We may assume that social inequality 
has antedated the official ruling. But the accompanying 
declaration of that pre-existing social inferiority and the 
ensuing action of assignment of facilities, inferior because 
segregated, amount to the creation of a legally sanctioned 
inequality.

j ,  f :

S tr ­
ip A



28

B. The^Placing of a R acial or R eligious Group in an 
Inferior Status by Segregation  Can Be A ccom plished  
W ithout an Express D eclaration of Such Status

We do not have here, of course, an express statement 
by the Southern Bailway Co. or the Interstate Commerce 
Commission that the purpose of the segregation is to 
maintain inequality. Nevertheless, the same results must 
be reached if that is in fact its purpose or effect. A regu­
lation may not accomplish by indirection what it may not 
achieve directly. Poindexter v. Greenhow, 114 U. S. 270, 
295; Yick Wo v. Hopkins, 118 U. S. 356, 373; Gwinm and 
Beal v. United States, 238 U. S. 347, 364; Myers v. Ander­
son, 238 U. S. 368; Neal v. Delaware, 103 U. S. 370.

The failure of a statute or regulation expressly to 
declare a legal inferiority does not protect it from the 
scrutiny of the courts. When the reasonableness of a 
classification endorsed by any governmental body as a 
basis for action is in question, the courts will look behind 
the apparent intention to determine whether or not, in fact, 
an unlawful classification has been made. Henderson v. 
Mayor, 92 U. S. 259, 268; Bailey v. Alabama, 219 U. S. 
219, 244; Penn Coal Co. v. Mahon, 260 IT. S. 393, 413.*

I

* Any classification adopted by a governmental body as the basis of official 
action must be viewed not in the abstract but realistically in the social set­
ting in which it operates. The judge “must open his eyes to all those con­
ditions and circumstances . . .  in the light of which reasonableness is to be 
measured . . .  In ascertaining whether challenged action is reasonable, the 
traditional common law technique does not rule out but requires some in­
quiry into the social and economic data to which it is to be applied. Whether 
action is reasonable or not must always depend upon the particular facts and 
circumstances in which it is taken.” Harlan F. Stone in 50 Harvard Law 
Review, pp. 4, 24 (1936). See also Poindexter v. Greenhow, supra; Village 
of Euclid v. Ambler Realty Co., 272 U. S. 365, 387-388; Connor v. Board of 
Commissioners of Logan County, Ohio, 12 F. (2d) 789, 795. Furthermore, 
this Court has declared that “where the facts as to the situation and the 
conditions are such as to oppress or discriminate against a class or an indi­
vidual the courts may consider and give weight to such purpose in consider­
ing the validity of the ordinance.” Dobbins v. Los Angeles, 195 U, S 223, 
240. Yick Wo v. Hopkins, 118 U. S. 356, is the classical application of this 
approach to prevent racial discrimination.



29

The implicit rather than the explicit declaration of 
inferiority may he made in at least two ways: First, the 
inferiority may have been established in other official acts. 
Thus, if statutes, judicial decisions or other official pro­
nouncements declare that a particular race is inferior, the 
assignment of separate facilities becomes an assignment 
of inferior facilities. We shall show below that such inde­
pendent declarations of inferiority have in fact been made.

Second, the regulations may incorporate an already 
established social stratification. Formal adoption of social 
classifications of necessity implies the adoption of the 
meaning inherent in, and inseparable from, the classifica­
tions themselves, that of the respective inferiority and 
superiority of the groups. Whenever law adopts a social 
classification based on a notion of inferiority, it trans­
forms the pre-existing social inequality into official in­
equality. What ensues is official discrimination, a denial 
of equality before the law, whether or not the statement 
of inferiority is made openly by the government or in­
heres in the classification upon which official action is 
based.

The reason that constitutional inhibitions attach when 
governments give official sanction to pre-existing social 
inequalities is that such action causes a change in both 
the degree and nature of the inequality. Once a social 
classification based on group inferiority is formally 
adopted, the ensuing official inferiority will in its turn 
intensify and deepen the social inequality from which it 
stems. The actual operation of segregation statutes illus­
trates this oppressive function of the law. It is well 
known, for instance, that the doctrine of “ separate but 
equal” facilities has proved to be a mere legal fiction in 
most cases, that invariably segregation has been accom­
panied by gross discrimination, and that absolute equality 
seldom, if ever, exists. For example, the President’s Com­
mittee on Civil Eights found that the “ separate but



30

equal” doctrine “ is one of the outstanding myths of 
American history for it is almost always true that while 
indeed separate these facilities are far from equal” (“ To 
Secure These Rights,” pp. 81-82).

This situation involves at the same time another kind 
of vicious circle. The effect of segregation laws makes 
their spontaneous repeal or amendment a practical im­
possibility. When a more or less inarticulate social feel­
ing of racial superiority is clothed with the sanction of 
official regulation, that feeling acquires a concreteness 
and assertiveness which it did not possess before. The 
stricter the regulation, the stronger and the more articu­
late the feeling of social distance. And the stronger that 
feeling, the stricter the regulation and the more difficult 
its amendment or repeal. In such a setting, the demo­
cratic processes themselves are threatened and no reliance 
can be placed on their correcting effect. It is this situa­
tion which Chief Justice Stone had in mind when, in 
sustaining an economic measure as presumptively valid, 
he warned that the decision did not foreclose the question 
whether “ legislation which restricts those political proc­
esses which can ordinarily be expected to bring about 
repeal of undesirable legislation, is to be subjected to 
more exacting judicial scrutiny under the general pro­
hibitions of the Fourteenth Amendment than are most 
other types of legislation” and whether “ similar consider­
ations enter into review of statutes directed at particu­
lar religious . . .  or national . . .  or racial minorities.” 
Accordingly, he noted that “ prejudice against discrete 
and insular minorities may be a special condition, which 
tends seriously to curtail the operation of those political 
processes ordinarily to be relied upon to protect minori­
ties, and which may call for a correspondingly more 
searching judicial inquiry.” United States v. Carotene 
Products, 304 U. S. 144, 154, footnote 4.

We shall show in the following sections that the sys­
tem of segregation is in fact designed to maintain in­
equality.



31

C. The Segregation  of N egroes M aintains an Officially  
D eclared Status of Inferiority and A lso a Previously  
E stablished Status of Social Inequality

1. Official Declarations of I nferiority

State imposed segregation stems directly from a ves­
tigial theory of the superiority and inferiority of races 
inherited as a remnant of the institution of slavery. With 
the freeing of slaves, attempts were made by the dominant 
white group to preserve its position of ascendancy by the 
enactment of discriminatory legislation. “ It required little 
knowledge of human nature to anticipate that those who 
had long been regarded as cm inferior and subject race 
would, when suddenly raised to the rank of citizenship, 
be looked upon with jealousy and positive dislike and that 
state laws might be enacted or enforced to perpetuate the 
distinctions that had before existed.” Strauder v. West 
Virginia, 100 U. S. 303, 306 (italics supplied). Thus, in 
the post-slavery period, Negroes were punished with 
greater severity than whites for identical offenses. See 
General Laws under the Seventh Legislature of the State 
of Texas, Chapter 121. And Negroes were made incom­
petent as witnesses in proceedings against white persons. 
Laws passed by First Legislature of the State of Texas, 
An Act to regulate proceedings in a District Court, Sec­
tion 65. In the State of Texas the abiding conviction of 
the inferiority of the Negro race is manifest even in its 
assessment statutes. “ Assessors shall receive 3  ̂ each 
for each white inhabitant residing in the county * # * 2<j 
for each white inhabitant in a town or city and 1$ for 
each slave or free person of color.” Laws passed' by the 
First Legislature of the State of Texas, An Act to Pro­
vide for the Enumeration of the Inhabitants.

These official declarations of inferiority have by no 
means been abandoned by the Southern states. They are 
maintained and reiterated in the many decisions holding



32

that the word “ Negro” or “ colored person” if applied 
to a white person gives rise to a cause of action for 
defamation. Flood v. News and Courier Co., 71 S. C. 112; 
Stultz v. Cousins, 242 F. 794. Every court which has 
considered the question has held that writing that a white 
man is a Negro is libelous per se. Upton v. Times-Demo- 
crat Pub. Co., 104 La. 141, 28 So. 970; Collins v. Okla­
homa State Hospital, 76 Okla. 229, 184 Pac. 946; Hargrove 
v. Okla. Press Pub. Co., 130 Okla. 76, 265 Pac. 635; Flood 
v. News and Courier Co., 71 S. C. 112, 50 S. E. 637; Stultz 
v. Cousins, 242 Fed. 794 (C. C. A. 6). It is believed that 
Alabama, Georgia, Illinois, and Kentucky would concur 
because of expressions in the opinions of their courts. 
Jones v. Polk & Co., 190 Ala. 243, 67 So. 577; Atlanta 
Journal Co. v. Farmer, 48 Ga. App. 273, 172 S. E. 647; 
Wright v. F. W. WoolworthCo., 281 111. App. 495; Williams 
v. Riddle, 145 Ky. 459, 140 S. W. 661. See Mangum, The 
Legal Status of the Negro, 1940, at p. 18.

The attitudes of these courts is clear. “ It is a matter 
of common knowledge that, viewed from a social stand­
point, the Negro race is in mind and morals inferior to 
the Caucasian. The record of each from the dawn of 
historic time denies equality.” Wolfe v. Georgia Railway 
Electric Co., 2 Ga. App. 499. Similarly, the highest court 
of Oklahoma has declared: “ In this state, where a rea­
sonable regulation of the conduct of the races has led 
to the establishment of separate schools and separate 
coaches, and where conditions properly have erected un- 
surmountable barriers between the races when viewed 
from a personal and social standpoint, and where the 
habits, the disposition, and characteristics of the race 
denominate the colored race as inferior to the Caucasian, 
it is libelous per se to write of or concerning a white 
person that he is colored. Nothing could expose him to 
more obloquy, or contempt, or bring him into more dis­
repute, than a charge of this character.” Collins v. Okla-



33

homa State Hospital, 76 Okla. 229, A Texas coart has 
ventured the opinion that, “ Although we have no Texas 
case holding that to falsely charge a white person as 
being a Negro would be slanderous, yet in view of the 
social habits, social customs, traditions and prejudices 
prevalent in this state in regard to the status of whites 
and blacks in this state, we think such a charge would 
be slanderous.” O’Connor v. Dallas Cotton Exchange, 
153 S. W. 2, 266.

Even more direct proof that the segregation statutes 
rest on doctrines of racial superiority may be found in 
the courts’ attitude when the statutes are misapplied. 
Their consistent holding that it is humiliating to require 
a white passenger to ride in a Jim Crow car betrays offi­
cial recognition that the facilities are not equal even in 
the eyes of the law.

Thus, in a Texas case, the court declared, “ To with­
hold from a white lady the right to ride in a coach such 
as the law requires to be provided for her race and to 
compel her and her children to ride in one occupied by 
Negroes for whom under law it is provided exclusively 
constitutes such a violation of law and breach of duty 
as to render it liable for damages for such discomfort 
and humiliation as are proximately caused from such 
breach of duty.” M. K. T. Railway Co. of Texas v. Ball, 25 
Tex, Civil App. 500, 61 S. W. 327. Similar decisions were 
reached in Louisville and N. R. Co. v. Ritchel, 148 Ky. 701; 
Chicago, R. I. and P. Ry. Co. v. Allison, 120 Ark. 54.

Consistently with these cases, a white passenger could 
recover damages if he were now required to sit at the 
dining car table which the railway assures us is now avail­
able to appellant. If the law recognizes damage in such 
a case, how can it, in any sense, view the facilities as 
equal?



34

2. T he P reviously E stablished Social I nequality

“ Supremacy” is not “ equality.” That proposition 
needs no elaboration. Yet it is easy to show that the 
doctrine of segregation is irrevocably linked with the 
equally widely held, though admittedly unconstitutional, 
doctrine of “ white supremacy.” At the very least, it has 
led to that doctrine, as Justice Harlan predicted in his 
dissenting opinion in Plessy v. Ferguson, 163 IT. S. at 559- 
564.

It is consequently not strange that students of segrega­
tion statutes uniformly find that they rest on notions of 
superiority. By segregation “ racial and cultural differ­
ences between southern whites and slaves were translated 
into terms of unquestionable superiority and inferiority.” 
Johnson, op. cit. p. 158. “ Systematic discrimination 
against a racial minority usually assumes the form of 
segregation. The subordinate status of the group may, 
in fact, be inferred from the modes of segregation to 
which it is subjected.” McWilliams, Race Discrimination 
and the Law, Science and Society, Vol. IX, No. 1 (1945). 
Indeed, the entire pattern of mores governing Negro-white 
relationships is inexplicable except in the terms that “ In 
the magical sphere of the white man’s mind, the Negro is 
inferior, totally independent of rational proofs or dis­
proofs. And he is inferior in a deep and mystical sense. 
The ‘reality’ of his inferiority is the white man’s own 
indubitable sensing of it, and that feeling applies to every 
single Negro . . .  the Negro is believed to be stupid, im­
moral, diseased, lazy, incompetent, and dangerous—dan­
gerous to the white man’s virtue and social order.” Myr- 
dal, op. cit. p. 100. Under these conditions “ it is falla­
cious to say . . . that the intention and effect [of segrega­
tion] is not to impose any badge of inferiority. . . . When 
a Negro workingman or woman is seated in the third seat 
of a street car on St. Charles Avenue in New Orleans 
and when a white man and woman is seated on the fourth



35

[ '1)4.

V

S  t & 4

’L l**. Co / fr, ■ *  S  ■& _*

! <n lA ire  " t

V
seat, separated only by a bit of wire mesh ten inches 
high on the back of the third seat this is a ‘separation’ 
that is merely a symbolic assertion of social superiority, 
a ‘ceremonial’ celebration.” McGlovney, Racial Residen­
tial Segregation by State Court Enforcement of Restric­
tive Agreements, Covenants or Conditions in Deeds is Un­
constitutional, 33 Calif. L. Rev. 5 at p. 27 (1945).

Tt, is eoually important,/that those States which have 
rejected the theory of inferiority by passing laws pro­
hibiting racial discrimination have uniformly interpreted 
those laws as prohibiting segregation. Joyner v. Moore- 
Higgins Co., 152 App. Div. 266 (N. Y .); Ferguson v. Gies, 
82 Mich. 358; R olden v. Grand Rapids, 239 Mich. 318; 
People v. Roard of Education of Detroit, 18 Mich. 400; 
Crosstvaith v. Berger, 95 Colo. 241; Jones v. Kehrlein, 
194 P. 55 (Cal.); Prowd v. Gore, 207 P. 490 (Cal.); 
Wysinger v. Crook shank, 23 P. 54 (Cal.); Tape v. 
Hurley, 66 Col. 473; Anderson v. Pantages, 114 Wash. 
24; Randall v. Cowlitz Amusements, 194 Wash. 82; Baylies 
v. Curry, 128 111. 287; Pickett v. Kuchan, 323 111. 138; 
Clark v. Directors, 24 Iowa 67.
""'""In short, the sole importance of segregation is to give 

whites—no matter how low on the social scale—a sense 
of power and importance. Dollard, Caste and Class in a 
Southern Town (1937), page 98. This is reflected in the 
candid admission of a Kentucky court considering statutes 
requiring segregation in transportation facilities within 
that State. “ It is also beyond dispute that the sentiment 
reflected in this legislation and in these opinions does not 
find the end or the perfection of its purpose in mere race 
separation alone. It goes much further in that, as is 
shown in the general feeling everywhere prevailing, the 
Negro, while respected and protected in his place, is not 
and cannot be a fit associate for white girls or the social 
equal of the white race. To conditions like these that are 
everywhere about them as a part of the social order and



36

domestic economy of the state, courts cannot shut their 
eyes. They must . . . notice . . . the position of the races 
and the attitude of the white race toward the Negro.” 
Axton Fisher Tobacco Co. v. Evening Post, 169 Ky. 64.

POINT III

The separate but equal doctrine has never been, 
and should not now be, applied to Section 3(1) of the 
Interstate Commerce Act by this Court.

This Court has never ruled that the prohibition of dis­
crimination incorporated in Section 3(1) of the Interstate 
Commerce Act was satisfied hy separate hut equal facili­
ties. Rail v. Jt)e Cuir, 95 U. S. 485 and Morgan v. Virginia, 
328 U. S. 373 held that state statutes forbidding or com­
pelling segregation are unconstitutional insofar as they 
apply to interstate carriers because they intrude upon 
federal control of interstate commerce. McCabe v. A. T. & 
8. F. R. R. Co., 235 lf\S . 151, held that a state law requir­
ing discrimination wak unconstitutional because it vio­
lated the Fourteenth Amendment. Chiles v. Chesapeake & 
Ohio R. Co., 218 U. S. \ l ,  sustained segregation self- 
imposed by a carrier; hut the complainant in that case 
failed to rely on Section 3(l)\and this Court did not refer 
to it. \

Thus, the only case in which'this Court has considered 
racial discrimination under Section 3(1) is Mitchell v. 
V. S., 313 U. S. 80. There it held \hat the denial of cer­
tain accommodations was clearly ''discriminatory and 
hence illegal. Declining to go further, ft noted specifically 
that it was considering “ not a question Desegregation hut 
one of equality of treatment” (313 U. S. at 94).

We submit that this Court can hold here that segre­
gated facilities do not satisfy Section 3(1) without over­
throwing the application of the Plessy doctrine to the



37

Fourteenth Amendment. The language of Section 3(1) 
unequivocally prohibits any carrier from subjecting any 
person “ to any undue or unreasonable prejudice or dis­
advantage in any respect whatsoever.” Obviously this 
sweeping injunction to be distinguished from the more 
general provision that no person shall be deprived of 
“ equal protection of the laws.”

Indeed we believe that the language of Section 3(1) 
is closer to that of the statute invoked in R. R. Co. v. 
Brown, discussed above (pp. 11-12). The Brown case was 
distinguished in the Plessy decision on the ground that 
the statute there invoked prohibited “ exclusion” from the 
cars (163 U. S., at 546). Clearly that statute is closer 
in language to the equally explicit terms of Section 3(1) 
than the “ equal protection” clause of the Fourteenth 
Amendment. We submit that the Brown case is a more 
direct precedent for the present case than the Plessy case 
and requires reversal of the judgment below.

CONCLUSION

It is respectfully submitted that for the reasons 
stated above the judgment below should be reversed.

A merican- J ewish Congress, 
Amicus Curiae,

W ill Maslow, Attorney.

Shad P olier, 
J oseph B. R obison, 
P hilip Baum, 

of Counsel.

October 17, 1949



AMERICAN JEWISH CONGRESS
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Executive Committee Administrative Committee
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Vice-Presidents
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