Brown v. Board of Education Vol. II Amicus Curiae Briefs
Public Court Documents
January 1, 1952 - January 1, 1954
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Brief Collection, LDF Court Filings. Brown v. Board of Education Vol. II Amicus Curiae Briefs, 1952. a76ef565-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3cd4204b-95a7-47bb-a759-061fd7a41976/brown-v-board-of-education-vol-ii-amicus-curiae-briefs. Accessed July 31, 2025.
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AMICUS CURIAE
BRIEFS
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IN THE
Supreme (Emtrt of the llnitefc States
October Teem, 1954
No
Oliver Brown, et al.,
Appellants,
v.
Board of E ducation of
Topeka, Shawnee Coun
ty, K ansas, et al.
Harry Briggs, Jr., et al.,
Appellants,
v.
R. W . E lliott, et al.
.....
— 666 3
Dorothy E. Davis, et al.,
Appellants,
v.
County School B oard of
Prince E dward County,
V irginia, et al.
F rances B. Gebhart, et al.,
Petitioners,
v.
E thel L ouise Belton, et al.
AMICUS CURIAE BRIEF OF THE
ATTORNEY GENERAL OF FLORIDA
R ichard W . E rvin
Attorney General of the
State of Florida
State Capitol Building
Tallahassee, Florida
Ralph E. Odum
Assistant Attorney General
State of Florida
IN THE
Supreme (Eourt of the Hutted States
October Term, 1954
No,
Oliver Brown, et al.,
Appellants,
v.
Board op E ducation of
Topeka, Shawnee Coun
ty, K ansas, et al.
Harry Briggs, Jr., et al.,
Appellants,
v.
R. W . E lliott, et al.
Dorothy E. Davis, et al.,
Appellants,
v.
County School Board op
Prince E dward County,
V irginia, et al.
F rances B. Gebhart, et al.,
Petitioners,
v.
E thel L ouise Belton, et al.
AMICUS CURIAE BRIEF OF THE
ATTORNEY GENERAL OF FLORIDA
Richard W . E rvin
Attorney General of the
State of Florida
State Capitol Building
Tallahassee, Florida
Ralph E. Odum
Assistant Attorney General
State of Florida
Subject Matter Index
. Page
Preliminary Statement ........................................................ 1
PART ONE
A Discussion of the Reasons for a Period of Gradual
Adjustment to Desegregation to be Permitted in Florida
with Broad Powers of Discretion Vested in Local School
Authorities to Determine Administrative Procedures..... 3
A. The Need for Time in Revising the State Legal
Structure ....................................................................... 5
L Examples of Legislative Problems .................. 7
(a) Scholarships.................................................... 7
(b) Powers and Duties of County School
Boards .............................................................. 10
(c) State Board of Education and State Super
intendent ........................................................ 12
H. Discussion of Legislative Attitudes.................... 14
B. The Need for Time in Revising Administrative
Procedures .................................................................... 17
I. Examples ............................................................... 18
(a) Transportation ............................................... 18
(b) Redistricting .................................................. 19
(c) Scholastic Standards .................................... 19
(d) Health and Moral W elfare........................... 20
C. The Need for Time in Gaining Public Acceptance.. 23
I. A Survey of Leadership Opinion....................... 23
II. General Conclusions ............................................. 24
Regional Variations......................... 32
l
A Note on Responses of Legislators................... 33
III. The Dade County R eport...................................... 34
IV. Discussion ................................................................ 34
D. Intangibles in Education............................................ 41
E. Reason for H op e .......................................................... 43
F. Regional Variations .................................................... 53
G. Discussion ................................................................... 55
PART TWO
Specific Suggestions to the Court in Formulating a
Decree ........................... ......................................................... 57
Introductory Note ........................................................ 59
Specific Suggestions..................................... ~.............. 61
PART THREE
Legal Authority of the Court to Permit a Period of
Gradual Adjustment and Broad Powers of Administra
tive Discretion on the Part of Local School Authorities.. 67
A. Judicial Cases Permitting Time .............................. 69
I. United States v. American Tobacco Co.............. 69
II. Standard Oil v. United States.............................. 70
III. Georgia v. Tennessee Copper Co........................... 72
State of Georgia v. Tennessee Copper Co., etc.... 72
IV. State of New York v. State of New Jersey, etc... 75
V. Martin Bldg. Co. v. Imperial Laundry ............... 75
B. Administrative Discretion Cases.............................. 77
I. United States v. Paramount Pictures................ 77
II. Alabama Public Service Commission v. Southern
Railway Co........................................................... 78
People of the State of New York v. United
States.................................................................... 79
III. Burford v. Sun Oil Co.............................................. 80
Page
li
IV. Far Eastern Conference, United States Lines
Co., etc. v. United States and Federal Mari
time B oard .......................................................... 82
V. Minersville School District v. Gobitis................ 82
VI. Cox v. New Hampshire......................................... 83
VII. Barbier v. Connolly................................................ 84
VIII. Euclid v. Ambler Realty Co.................................. 84
C. Remarks ...................................................................... 85
PART FOUR
Considerations Involved in Formulating Plans for
Desegregation ........................................................................ 87
A. Changes in the L a w .................................................... 89
B. Plans for Integration.................................................. 91
PART FIVE
Conclusion ............................................................................. 97
Page
m
Appendix A
Page
RESULTS OF A SURVEY OF FLORIDA LEADER.
SHIP OPINION ON THE EFFECTS OF THE U. S.
SUPREME COURT DECISION OF MAY 17, 1954,
RELATING TO SEGREGATION IN FLORIDA
SCHOOLS ............................................................................. 99
Introduction........ .............. 101
Attorney General’s Research Advisory Committee for
the Study of Problems of Desegregation in Florida
Schools ................................................................... 102
THE REPORT AND THE CONCLUSIONS....... ............105
General Conclusions.......................................................... 107
LEADERSHIP OPINION BY QUESTIONNAIRE—
AND CONCLUSIONS.......................................................... 113
The Questionnaires............................................................ 115
Questionnaire Returns and Method of Analysis........... 116
Findings ..............................................................................118
Regional Variations.......................................................... 124
Responses of Legislators.................................................. 126
Conclusions ........................................................................ 127
Sample Questionnaire ...................................................... 129
Sample Questionnaire ...................................................... 132
Table 1— Questionnaires Sent and Returned,
by Groups........................................................................135
Table 2—Per Cent Expressing Various Attitudes
Towards Decision, by Groups.............................. 136,137
Table 3—Per Cent Agreeing or Disagreeing with
the Decision, by Groups ...............................................138
Table 4—Per Cent Willing or Unwilling to Comply
with Courts and School Officials, by Groups........... 139
IV
Table 5—Per Gent of Each Group Predicting Mob
Violence and Serious Violence .................................. 140
Table 6—Per Cent of Each Group Doubting Ability
of Peace Officers to Cope with Serious Violence.........141
Table 7—Per Cent of Each Group Who Believe
Peace Officers Could Cope with Minor Violence........ 142
Table 8—Per Cent of Groups Polled Who Believe
Most of Other Specified Groups Disagree with the
Decision ..........................................................................143
Table 9—Per Cent of Each Group Designating
Various Methods of Ending Segregation as Most
Effective ..........................................................................144
Table 10—Per Cent of Each Group Designating
Specified Grade Levels as Easiest Place to Start De
segregation ....................................................................145
Table 11—Per Cent of Each Group Designating
Various Problems as Being Likely to Arise...............146
Table 12— Confidence of Peace Officers in Ability
to Cope with Serious Violence, by Attitude Towards
Desegregation ................................................................ 147
Table 13— Confidence of Peace Officers that Police
Would Enforce School Attendance Laws for Mixed
Schools, by Attitude Towards Desegregation........... 147
Table 14—Per Cent of Peace Officers Expressing
Various Attitudes, by Region ..................................... 148
Table 15—Per Cent of White Principals and Super
visors Agreeing or Disagreeing with the Decision,
by R egion ........................................................................149
Table 16— Per Cent of White Principals and Super
visors Willing or Unwilling to Comply, by Region....149
Table 17—Per Cent of Peace Officers Predicting
Mob Violence, by R egion.............. 150
Table 18—Number and Per Cent of Peace Officers
and White Principals and Supervisors Predicting
Serious Violence, by Region .......................................150
Page
v
Table 19—Number and Per Cent of Peace Officers
and White Principals and Supervisors Doubting
that Peace Officers Could Cope with Serious
Violence, by Region .....................................................151
Table 20—Number and Per Cent of Legislators
Favoring Each of Five Possible Courses of Legisla
tive A ction .....................................................................152
Page
LEADERSHIP OPINION BY PERSONAL INTER.
VIEW—AND CONCLUSIONS.......................................... 153
Selection of Counties ........................................................ 153
Method of Study................................................................154
Findings ..............................................................................155
The Personal Interview Schedule...................................160
Personnel Interviewed...................................................... 162
Reliability of Judgments in the Analysis of Recorded
Interviews on the Subject of the Supreme Court’s
Segregation Decision ........................................................ 164
Table 1—Per Cent Agreement Between Judges.....167
Table 2—Frequencies of Ratings of Interviewee
Feeling by Judges I & I I ...............................................168
Table 3—Frequencies of Ratings of Interviewee
Feeling by Judges III & I V .........................................169
Table 4—Frequencies of Ratings of Interviewee
Feeling by Judges V & V I.............................................170
Table 5—Frequencies of Ratings of Interviewee
Feeling by Judges VII & V I I I .....................................171
Table 6—Frequencies of Classification of Interviews
by Judges I & I I ............................................................ 172
Table 7—Frequencies of Classification of Interviews
by Judges III & I V ........................................................ 173
Table 8—Frequencies of Classification of Interviews
by Judges V & V I .......................................................... 174
Table 9—Frequencies of Classification of Interviews
by Judges VII & V I I I .................................................. 175
vi
ANALYSIS OF NEGRO REGISTRATION AND
VOTING IN FLORIDA, 1940.1954....................................177
Summary Sheet of Attorney General’s
Questionnaire, July 15,1954..................................... 180-184
Page
EXISTING PUBLIC SCHOOL F A C IL IT IE S IN
FLORIDA AND FACTORS OF SCHOOL ADMINIS
TRATION AND INSTRUCTIONAL SERVICES
AFFECTING SEGREGATION.......................................... 185
Achievement Test Scores ................................................ 189
Counties with No Negro High Schools...........................191
Examples of Inter-Racial Cooperation .........................191
Table 1— Summary of Expenditures—all funds—
Both Races, 1952-53 ...................................................... 193
Table 2— Significant Trends in the Growth of
Florida Schools under Dual System of Education
1930 to 1953 ....................................................................194
Table 3—Enrollment .................................................... 195
Table 4— Comparison of Percentile Ranks for White
and Negro Examinees in the Florida Statewide
Twelfth-Grade Testing Program Spring 1949
through Spring 1953 .................................................... 196
Table 5—Counties with No Negro High School
1952-53 ............................................................................197
Table 6— Status of Elementary Principals 1953-54....198
Map—Amount and Per Cent of Nonwhite Popu
lation: 1950 ..................................................................... 199
Map—Proportion of Negro Enrollment to Total
Enrollment by Counties 1952-53 ................................200
AN INTENSIVE STUDY IN DADE COUNTY AND
NEARBY AGRICULTURAL AREAS — AND CON.
CLUSIONS..............................................................................201
General Conclusions.......................................................... 201
Factors Indicating a Gradual Approach as the So
lution to this Problem .......................................................204
ACKNOWLEDGMENTS .....................................................207
Vll
Appendix B
Page
EXAMPLES OF FLORIDA’S CONSTITUTIONAL,
STATUTORY AND STATE SCHOOL BOARD
REGULATORY PROVISIONS RELATING TO
SEGREGATION....................................................................211
Florida Constitution ........................................................ 213
Florida Statutes.......................................................... 215-218
State School Board Regulations .............................219-243
Table of Authorities
Alabama Public Service Commission v. Southern Rail
way Company, 341 U.S. 341, 95 L. Ed. 1002, 71 S. Ct. 762
1951 ................... 78
Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed.
923 (1885) ................................................................................ 84
Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63
S. Ct. 1098 (1943) ................................................................ 80
Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85
L. Ed. 1049 (1941) ............................................. ................ 83
Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114.
71 L. Ed. 303 (1926) ............................................................... 84
vin
Far Eastern Conference, United States Lines Co., States
Marine Corporation, et al. v. United States and Federal
Maritime Board, 342 U.S. 570, 96 L. Ed. 576, 72 S. Ct.
492 (1952)............................................................................... 82
Georgia v. Tennessee Copper Co., 206 U.S. 230, 51 L. Ed.
1038, 27 S. Ct. 618 (1907)...................................................... 73
Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90,
124 So. 82 (1929) .............................................................. . 75
Minersville School Distict v. Gobitis, 310 U.S. 586, 60 S.
Ct. 1010, 84 L. Ed. 1375 (1940) ........................................56, 82
New York v. United States, 331 U.S. 284, 334-336 (1947).. 79
New Jersey v. New York, 283 U.S. 473, 75 L. Ed. 1176,
51 S. Ct. 519 (1931); 284 U.S. 585, 75 L. Ed. 506, 52 S. Ct.
120; 289 U.S. 712; 296 U.S. 259, 80 L Ed. 214, 56 S. Ct.
188 ........................................................ 70,71,72
People of the State of New York v. State of New Jersey
and Passaic Valley Sewerage Commissioners, 256 U.S.
296, 65 L. Ed. 937, 41 S. Ct. 492 (1921).............................. 75
Plessy v. Ferguson, 163 U.S. 537,16 S. Ct. 1138, 41 L. Ed.
256 (1896)...........................................................................6, 55
Smith v. Allwright, 321 U.S. 649....................................... 177
Standard Oil Co. v. U.S., 221 U.S. 1, 31 S. Ct. 502, 55
L. Ed. 619 (1910).................................................................... 70
State of Georgia v. Tennessee Copper Co. and Ducktown
Sulphur, Copper & Iron Co., Ltd., 237 U.S. 474, 59 L. Ed.
1054, 35 S. Ct. 631 (1915); 237 U.S. 678, 59 L. Ed. 1173,
35 S. Ct. 752 (1915); 240 U.S. 650, 60 L. Ed. 846, 36 S. Ct.
465 (1916)...........................................................................73, 74
United States v. American Tobacco Co., 221 U.S. 106, 31
S. Ct. 632, 55 L. Ed. 663 (1911).......................................... 69
United States v. Paramount Pictures, 334 U.S. 131, 92 L.
Ed. 1260, 68 S. Ct. 915 (1948) .............................................. 77
Page
IX
UNITED STATES LAW
26 State at L., 209, Ch. 647, USC Title 15, §1
Page
(Anti-Trust Act) ................................................................. 70
FLORIDA CONSTITUTION AND STATUTES
Art. 12, Sec. 1, Florida Constitution................................213
Art. 12, Sec. 12, Florida Constitution.................5, 6,15, 213
Sec. 228.09, Florida Statutes............................................... 215
Sec. 229.07, Florida Statutes................................................12, 215
Sec. 229.08, Florida Statutes............................................ ....12, 216
Sec. 229.16, Florida Statutes ........................................ 13,216
Sec. 229.17, Florida Statutes................................................13, 217
Sec. 230.23, Florida Statutes................................................10, 217
Sec. 239.41, Florida Statutes ...................................7,8,9,218
Sec. 242.46, Florida Statutes............................................... 41
STATE SCHOOL BOARD REGULATIONS
The Calculation of Instruction Units and Salary
Allocations from the Foundation Program.................13, 219
Administrative and Special Instructional Service.....13, 220
Units for Supervisors of Instruction............................ 13, 221
Establishment, Organization and Operation of Small
Schools ...................................................................................225
School Advisory Committees............................................... 13, 226
Qualifications, Duties and Procedure for Employment
of Supervisors of Instruction................................................13, 228
Isolated Schools .............................................................. 13, 232
The Distribution of General Scholarships.........._.......13, 235
Scholarship Committee ....................................................... 240
x
Scholarship for Pi*eparation of Teachers and House and
Page
Senatorial Scholarships........................................................241
State Supervisory Services..............................................13,242
Transportation of Pupils .................................................... 243
MISCELLANEOUS
Ashmore, Harry S., “ The Negro and the Schools” .......34, 39
Garter, Hodding, Reader’s Digest, September 1954, p. 53.. 20
Clark, Kenneth B., “ Findings,” Journal of Social Issues,
IX, No. 4 (1953), 50 .........................................................25,109
Dietrich, T. Stanton, Statistical Atlas, Florida’s popula
tion; 1940 and 1950; Research Report No. 3, Florida State
University, June, 1954 ..........................................................189
Emory University Law School, Journal of Public Law,
Vol. 3, Spring 1954, No. 1............................................ 37, 38, 89
Florida Facts, Florida State University, School of
Public Administration....................................................32,124
Florida State Board of Health, Annual Report 1953,
Supp. No. 1, Florida Vital Statistics................................ 21
Florida State Board of Health, Annual Report 1953,
Supp. No. 2, Florida Morbidity Statistics 1953, Table
No. 5, p. 2 5 .............................................................................. 21
Katz, Daniel and Hadley Cantril, “ Public Opinion
Polls,” Sociometry, I (1937), 155-179 ...............................116
Psychol. Bull., 1949, 46, 433-489 .........................................166
Semi-Weekly Floridan, Tallahassee, Florida, April 23,
1867, page 2 ............................................................................ 95
State of Florida, Biennial Report, Superintendent of
Public Instruction 1950-51 .................................................. 32
The Antioch Review, VTEI (Summer 1948), 193-210.......128
“ The Impending Crisis of the South,” New South, VTTT,
No. 5, (May 1953) (Atlanta: Southern Regional Coun
cil) 5 ..........................................................................................105
U. S. News & World Report, page 35, August 27, 1954..... 31
xx
Preliminary Statement
This amicus brief filed by the Attorney General of the
State of Florida pursuant to permission granted by the
Court in its decision of May 17,1954, in the above cases, con
tends that the Court should resolve its implementation de
cision in favor of the propositions stated in questions 4B
and 5D.
The Court will find from a study of this brief that a sin
cere and thorough effort has been made by the Attorney
General of Florida to present reasonable and logical an
swers to questions 4 and 5. These answers are respectfully
submitted by way of assistance to the Court and are based
upon a scientific survey of the factual situation in Florida,
embracing practical, psychological, economic and socio
logical effects, as well as an exhaustive research of legal
principles.
However, in filing this brief in answer to the hypothetical
questions propounded, the Attorney General is not inter
vening in the cause nor is he authorized to submit the State
of Florida as a direct party to the instant cases. Neither can
his brief preclude the Florida legislature or the people
of Florida from taking any legislative or constitutional ac
tion dealing with the segregation problem.
1
.
Part One
A discussion of the reasons for a period of
gradual adjustment to desegregation to
be permitted in Florida with broad pow
ers of discretion vested in local school
authorities to determine administrative
procedures.
3
A . The Need For Time
In Revising The State
Legal Structure
There is a need for reasonable time and planning by
State and local authorities in any revision of the existing
legal structure of the State of Florida, (which now provides
an administrative framework for the operation of a dual
system of public schools) in order to provide a legal and
administrative structure in which compliance with the
Brown decision can be accomplished in an orderly manner.
Examples of Florida constitutional, statutory, and state
school board regulatory provisions related directly or in
directly to segregated public schools are set forth in Ap
pendix B.
The basic change which must be made if Florida is to
comply with the non-segregation decision is either a repeal
or revision of Article XII, Section 12, of the Florida Con
stitution, which provides:
“ White and colored; separate schools.—White and
colored children shall not be taught in the same school,
but impartial provision shall be made for both.”
This provision in the basic law of Florida has been in
existence since 1885. During the past 69 years it has been
rigidly observed and has provided the foundation for an in
tricate segregated public school system, in accord with so
cial customs which cannot be changed overnight without
5
completely upsetting established school administrative pro
cedure in school planning, transportation, teacher employ
ment, capital outlay, districting, scholastic standards, pub
lic health, school discipline as well as many other facets of
the tremendously complicated school structure in Florida.
Assuming that the basic law of Florida pertaining to a
dual system of schools (Art. XII, Section 12, of the Florida
Constitution) is rendered nugatory by the decision of this
court in the Brown case, the Florida legislature must re
vise the entire School Code of Florida to the extent that the
present code is predicated upon a dual system of education,
and all administrative procedures which have developed
under said code are grounded on the fundamental principle
of a segregated system. A simple repeal of the various
statutory and administrative procedures now provided for
the operation of the school system (which may prove to be
in conflict with the Brown decision) could only result in the
creation of a vacuum in methods of school administration.
The consequent immediate inrush of turbulent ideas into
this vacuum without legal guidance or administrative regu
lation might well cause a tornado which would devastate
the entire school system.
This system has grown through the years since the es
tablishment of the “ separate but equal” doctrine by the
Court in the Plessy v. Ferguson case (163 U.8. 537), into
a mammoth and intricate system of public education in
Florida involving the annual expenditure of $138,895,123.15
and the welfare of 650,285 children. We do not believe that
this system, which took over half a century to develop, can
be transformed overnight.
The bare mechanical process of enacting legislation re
quires reasonable time for study by legislative committees,
the time depending upon the complexity of the problem, and
must conform to the legally established time for convening
the legislature. On a problem of the magnitude of the one at
6
issue, the study of legislative committees must be preceded
by exhaustive study on the part of school officials and citi
zens’ educational committees in order that the legislature
may have the benefit of their recommendations.
I. EXAMPLES OF LEGISLATIVE PROBLEMS
(a) Scholarships
An example of the type of legislative problem which must
be considered by school officials and the legislature is con
tained in Section 239.41, Florida Statutes.1
This law at present provides for 1,050 scholarships of
$400 each year for students desiring to train for the teach
ing profession.1 2
According to the State Department of Education, award
ing of the scholarships is done on a basis of county repre
sentation, race, and competitive test scores of psychological
and scholastic aptitude. A compilation of the scores of the
740 white twelfth grade applicants in the Spring of 1954
yielded an average score of 340. Compilation of the 488
Negro twelfth grade applicants yielded an average score
of 237. In the previous year, 1953, 664 white applicants
made an average score of 342 while the Negro applicants
made an average score of 237. This difference is classified as
very significant, and should be interpreted as meaning that
factors other than chance explain the different results be
tween white and Negro scores.
In view of the wide divergence in achievement levels be
tween the white and Negro races, as demonstrated by the
scholarship examinations, and desiring to make these schol
arship opportunities available to students of both races, it
1. See page 218, Appendix B.
2. See page 235, Appendix B.
7
was recognized that provision would have to be made
whereby Negro students would not have to compete against
white students for these awards. Therefore, the legislature
of Florida provided that the scholarships should be ap
portioned to white and Negro applicants according to the
ratio of white and Negro population in the counties. Only
in this way can Negro students in this state be assured of
receiving a proportionate share of state scholarships
awarded on the basis of competitive examinations.
I f the Court’s decision in the Brown case is to be inter
preted that no distinction can be made on the basis of race
in the operation of Florida’s school system, it is apparent
that Section 239.41, Florida Statutes, will have to be re
vised if the state is to continue its policy of encouraging
Negro as well as white students to enter the teaching field.
It is apparent that the overall problem of teacher short
ages cannot be solved immediately by law. It can be solved
eventually by provisions such as Section 239.41, Florida
Statutes, which is calculated to encourage a larger number
of people to qualify themselves as teachers. I f Section
239.41, Florida Statutes, is revised, however, to preclude
immediately any recognition of a difference in scholastic
achievement between Negro and white applicants for teach
er scholarships, such revision would make it virtually im
possible for the great majority of Negro students in
Florida to receive scholarships, and from an economic stand
point they form the group of potential teachers who need
such assistance most.
The problem can be solved, however, by time, without
working an undue hardship on Negro students or creating
an even greater shortage of teachers in Florida.
Dr. Gilbert Porter, Executive Secretary of Florida State
Teachers Association had this to say on the subject in
addressing a meeting of Negro teachers in Tallahassee on
August 19, 1954:
8
“ It is of no avail to blind ourselves to the marked
difference in scholastic achievement between white and
Negro students. This difference is not our fault, but it
is there and must be recognized. I f the doors to the
state white universities were thrown open to Negro
students today, it would make little difference because
a great majority of Negro students could not pass an
impartial entrance examination. We, as Negro teach
ers, can provide the only solution to this dilemma if
given a reasonable amount of time, but it will mean an
absolute dedication to his work on the part of every
Negro teacher. Negro teachers can close the gap be
tween Negro and white students if they will work hard
enough. We have come a long way already in closing
that gap and it can be closed completely within the
foreseeable future if we will work hard enough. Any
Negro teacher who is not willing to dedicate himself to
this purpose should step out of the way because he is
standing in the way of the progress of our race. Either
we must remove this difference in scholastic standing
or admit that we are inferior— and I will die and go
to the hot place before I will ever admit that I am
inferior.”
Whatever is done by school officials and the Florida
legislature to fit the Florida teacher scholarship act (Sec.
239.41, Florida Statutes) into the framework of the new
concept of a non-segregated school system enunciated by
the Court, should take into consideration the human rights
and legal equities of members of the Negro race who would
like to enter the one professional field which is now open to
them on a large scale, and which they are now not only
invited but urged to enter on a basis of absolute economic
and professional equality. A strict legal application of the
principle that no distinction can be made on the basis of
race in public schools would necessarily have to ignore
practical and human factors as they now exist which are
of fundamental importance to the operation of a public
school system in Florida. One thing is apparent. No equi
9
table and workable solution can be found unless sufficient
time is permitted by the Court in the application of its
decree abolishing segregated schools, to allow for an abate
ment of the problems involved and an equitable adjustment
by the school system to so drastic a change in its basic
structure.
(b) Powers and Duties of County School Boards
The problems which will necessarily confront the Florida
legislature in revising the provision of Section 230.23,
Florida Statutes,1 alone, are so involved and complicated
if practical questions of school administration are to be
considered, that no immediate solution is feasible.
Section 230.23, Florida Statutes, provides the powers and
duties of county school boards and establishes a framework
within which they may authorize schools to be located and
maintained. It provides in part:
“ Authorize schools to be located and maintained in
those communities in the county where they are needed
to accommodate as far as practicable and without un
necessary expense all the youth who should be entitled
to the facilities of such schools, separate schools to
be provided for white and Negro children; and approve
the area from which children are to attend each such
schools, such area to be known as the attendance area
for that school . . . ”
Bearing in mind that this provision of the law has been
followed throughout the development of the Florida school
system and the location of schools decided in accord with its
intent, a simple repeal of this provision would provide no
systematic guide or formula for local school boards to fol
low in attempting to redesign and reorganize the dual sys
1. See page 217, Appendix B.
10
tem now in operation, which at present involves real estate
estimated to be valued at $300,000,000 and a current build
ing program now under way involving from $90,000,000 to
$100,000,000/ into a single non-segregated system.
The conversion of this $300,000,000 school plant into a
non-segregated system will clearly take a great deal of
planning if the old primary factor of racial segregation is
removed in school location, construction and operation.
The State Department of Education reports1 2 that:
“ Florida provides annually $400 per instruction unit
for Capital Outlay needs which for the 67 counties
totaled $9,451,600 in 1953-54 and has been computed
at $10,199,448 for the 1954-55 estimate. This money is
spent in each county according to the needs recom
mended by a state-conducted school building survey.
With the help of these individual county surveys it was
estimated as of January, 1954 that $97,000,000 will be
needed to provide facilities for white children and
$50,000,000 will be needed to provide facilities for
Negro children. Since the activation as of the effective
date January 1, 1953 of a Constitutional Amendment
providing for the issuance of revenue certificates by
the State Board of Education against anticipated state
Capital Outlay funds for the next thirty years more
than $43,000,000 in state guaranteed bonds have been
issued to provide additional facilities for both races.
By the fall of 1954 there will have been a total of $70,-
000,000 of these bonds issued and in the foreseeable
future the total will be $90,000,000 to $100,000,000. At
the present time 2182 classrooms are under construc
tion as a result of the issuance of these bonds.”
The planning included in making necessary surveys, ac
quisition of sites, financing and engineering involved in the
present construction program, although performed at top
speed under the compulsion of a critical shortage of school
1. See page 188, Appendix A.
2. See page 187, Appendix A .
11
buildings in Florida, is a continuing process and requires
several years to carry out successfully.
Much of this school planning with regard to the allocation
and use of existing structures as well as new construction
will have to be re-evaluated and revised in accord with the
entirely new and basic change to a non-segregated system.
These facts, when considered in the light of the over
crowded conditions now prevailing in many Florida schools,
must be studied by the legislature and school officials in any
effort to provide adequate administrative means of comply
ing with the Court’s decision. According to the State De
partment of Education, during the school year 1953-54,
eighty-one schools in 18 Florida counties were forced to
operate double sessions because of the lack of classroom
space and trained teachers. In many instances to integrate
immediately in particular schools would mean overcrowd
ing of school facilities resulting in serious administrative
problems too numerous to detail.
When these problems are further complicated by the
drastic change in the legal framework of segregated schools
in Florida, it is apparent that such factors should be rec
ognized by the Court and sufficient time allowed for their
orderly solution.
(c) State Board of Education, and State Superintendent
A third example of the complex problems which will con
front school officials and the Florida legislature in re
vising the framework of laws within which the school sys
tem can operate efficiently in compliance with the Brown
decision is found in Sections 229.07,1 229.08,1 2 Florida Sta
tutes, relating to the authority and rule-making powers
1. See page 215, Appendix B.
2. See page 216, Appendix B.
12
and duties of the State Board of Education; and Sections
229.163 and 229.174 relating to the duties of the State
Superintendent of Public Instruction.
Although these provisions may not directly relate to seg
regated schools, they have in each instance been enacted
and administered in accord with the basic provision of
Florida law requiring a dual school system, and some re
vision will be necessary in the administrative powers
granted therein in order to insure compliance with the
Court’s decree.
Specific problems in this regard are found in State Board
Regulations adopted April 27, 1954 (page 154, State Board
Regulations, page 219, Appendix B) related to the calcu
lation of instruction units and salary allocations from the
Foundation Program; State Board Regulation adopted
March 21, 1950 (page 164, State Board Regulations, page
220, Appendix B), related to Administrative and Special
Instructional Service; State Board Regulation adopted
March 21, 1950 (page 171, State Board Regulations, page
221, Appendix B ), related to units for supervisors of in
struction; State Board Regulation adopted July 3, 1947
(page 28, State Board Regulations, page 226, Appendix
B), related to School Advisory Committees; State Board
Regulation adopted March 21,1950 (page 148, State Board
Regulations, page 228, Appendix B ), related to the quali
fications, duties and procedure for employment of super
visors of instruction; State Board Regulation adopted July
3, 1947 (page 156, State Board Regulations, page 232, Ap
pendix B ), related to isolated schools, State Board Regu
lation adopted July 21, 1953 (page 225, State Board Regu
lations, page 235, Appendix B ), related to the distribution
of general scholarships; State Board Regulation adopted
July 3, 1947 (page 229, State Board Regulations, page 242,
Appendix B), related to State Supervisory Services.
3. See page 216, Appendix B.
4. See page 217, Appendix B.
13
n. DISCUSSION OF LEGISLATIVE ATTITUDES
In setting out these examples of legislative problems
which will require reasonable time for solution, we do not
intend to imply that the members of the Florida legislature
are at present willing to accept a desegregated school sys
tem. In fact, from such information as is now available on
this point there is reason to believe that members of the
Florida legislature are to a large extent unsympathetic
to the Court’s decision in the Brown case. A survey of
leadership opinion regarding segregation in Florida con
ducted by the Attorney General included the following
statement in the survey report (page 126, Appendix A ) :
“ Although the 79 members of the state legislature who
returned questionnaires constitute almost 45% of the
176 legislators and legislative nominees, to whom the
forms were sent, generalizations as to the entire mem
bership of the legislature on the basis of their responses
are entirely unwarranted. Any attempt to predict the
action of the legislature at its next session would be
even more presumptuous. The responses of these legis
lators to two special questions asked of them are pre
sented below as a matter of interest, however.
“ The legislators were asked to indicate which of five
possible courses of action should be followed at the
next session of the legislature. The percentage check
ing each course, and the details of the five courses of
action, are shown in Table 20 (Appendix A ). The legis
lators were also asked whether they believed that there
is any legal way to continue segregation in Florida
schools indefinitely. Of the 79 respondents, 34.20% re
plied ‘ yes’, 25.31% replied ‘ no ’ and 39.32% answered
‘ Don’t know’ or gave no answer.”
Table 20, Appendix A, indicates that 40.5% of the mem
bers of the legislature who responded to the questionnaire
wanted to preserve segregation indefinitely by whatever
means possible.
14
It is even more significant that the Florida legislature in
its 1951 session amended the appropriations act for the
State Universities to provide that in the event Section 12
of Article 12 of the Florida Constitution shall be held un
constitutional by any court of competent jurisdiction or in
the event the segregation of races as required by Section
12, Article 12 of the Florida Constitution should be dis
regarded, that no funds under the appropriations act shall
be released to the Universities (page 683, Journal of the
Florida House of Representatives, May 10, 1951). This
amendment contained in Chapter 26859, General Laws of
Florida, 1951, was vetoed by the Governor.
On the other hand, it is not our purpose to imply that the
Florida legislature will refuse to take any action to provide
a framework of laws designed to implement the Court’s
decision. Only the legislature itself under our form of gov
ernment can determine what course of action it will pursue
and we know of no way it can he coerced in making this
determination except through the will of a majority of the
people voiced through the ballot.
One thing seems apparent, however, under these cir
cumstances. The Court upon equitable principles ought to
extend to our legislature a reasonable period of forbearance
during which the normal processes of legislative authority
can he afforded time and opportunity to implement the
Court’s decision. The great multitude of problems the de
cision has created in the legal structure of our school system
should warrant the Court in granting our legislature full
opportunity to revise our school laws.
Such a period of forbearance is in keeping with the
spirit of confidence which, under our system of democracy,
is essential to maintain among the three branches of gov
ernment. It is in keeping with the spirit of confidence
which must be maintained between state governments and
the Federation of States which has delegated to this Court
15
its judicial authority. A fundamental precept in the prac
tical workings of this spirit of confidence is the use of per
suasion rather than coercion or compulsion. We believe
that this Court will not attempt to use its powers of coer
cion precipitately and prematurely against any state whose
legislature has not had time to revise its basic school laws
to meet the requirements of transition.
Our Florida legislature under our Constitution does not
convene again until April, 1955 for its biennial 60-day ses
sion.
Even at that session there may not be known the terms
of the implementation pattern, since they are dependent
upon whether the Court acts prior to April, 1955. Further
more, whether the necessary spade-work and drafting of
legislation to adequately provide for the transition can be
accomplished within said session is largely a matter of
conjecture, so multitudinous and complex are the problems.
We reiterate: the State, having so long relied on and lived
under the Plessy doctrine, should have no unseemly haste
visited upon its legislature in trying to meet the needs of
transition, especially when it is considered by many to be,
at best, a “ bitter pill” for the legislature to swallow.
Rather, the reasonable, considerate and tempered course
would be to allow our legislature a requisite and ample
period of time to study, debate and enact implementation
legislation. This we believe the court from innate principles
of equity will allow.
16
B. The Need For Time In
Revising Administrative
Procedures
In addition to the problem of statutory revision, the
Court should consider the need for time in adjusting the
literally thousands of administrative policies and regula
tions of local school boards and school superintendents
which have been formulated within the framework of law
to meet local conditions in each of the 67’counties of Florida
which will have to be revised and reorganized to conform
to new legislative enactments resulting from the Brown
decision. It is apparent that considerable time must be al
lowed before workable administrative policies of this kind
can be evolved. Speaking to a group of Negro leaders in
Jacksonville on July 30, 1954, Florida State School Super
intendent Thomas D. Bailey, said:
“ As I see it, the ultimate problem is to establish a
policy and a program which will preserve the public
school system by having the support of the people. No
system of public education will endure for long without
public support. No program of desegregation in our
public schools can be effective, unless the people in
each community are in agreement in attempting it. ’ ’
School board members, school trustees and school super
intendents are elective officials in Florida. They are ob
viously well aware that any administrative policies they
adopt implementing state laws enacted pursuant to the
Brown decision must meet with at least some degree of ac
ceptance on the part of the people in the community if they
are to prove workable.
17
I. EXAMPLES
(a) Transportation
Perhaps the best example of this type of problem is the
practical difficulties which will be encountered in convert
ing the present dual school bus transportation system into
a single system.
During the school year 1953-54 Florida’s school system
operated 2212 buses. These buses traveled 30,910,944 miles
to transport 209,492 pupils at a cost of $4,506,667 (see page
186, Appendix A ). These figures may be compared with
Florida Greyhound Lines, the largest motor bus common
carrier in Florida, which operates 175 buses in the state.
A court order merging Florida Greyhound Lines with a
competing line would necessarily allow a considerable pe
riod of time for revising routes and schedules to avoid dupli
cation and insure maximum service to the public, but such
a merger would be relatively uncomplicated compared to
the problems involved in merging Florida’s dual school bus
system.
The problems of merging what amounts to two bus sys
tems into one system without regard to race are obviously
complicated. Hundreds of bus routes and schedules will
have to be revised in line with the school redistricting which
must take place. In accomplishing such a drastic revision of
bus routes and schedules the paramount factor in school
bus transportation, i.e., safety, must be considered at all
times in the light of the fact that discipline among the pas
sengers is directly related to safety. Discipline on school
buses is maintained by one person, the driver. The ability
of the driver to maintain discipline and a reasonable degree
of safety while transporting mixed racial groups which
may be antagonistic must clearly be considered in re
routing and re-scheduling school bus routes. Such consider
ation on the part of local school boards will require degrees
18
of time in direct ratio to the complexity of the local situa
tion in relation to the size and distribution of the Negro
population and the intensity of opposition to desegregated
schools on the part of the citizens.
(b) Redistricting
The redistricting of school attendance areas along normal
geographic lines on the basis of a single school system
rather than a dual system as it now exists is another prob
lem which will require a great deal of time in proper plan
ning and execution.
(c) Scholastic Standards
Perhaps an even greater problem which will confront
school officials on both the state and county level is the
maintenance of scholastic standards in the intermingling of
two groups of students so widely divergent on the basis of
achievement levels. According to the State Department of
Education (see page 190, Appendix A ) :
“ A comparison of the performance of white and
Negro high school seniors on a uniform placement-test
battery given each spring in the high schools through
out the State of Florida is shown in Table 4, page 196,
Appendix A. The number of participants corresponds
with the total twelfth grade membership during the
five-year period, 1949-1953. This table shows, for ex
ample, that on all five tests 59% of the Negroes rank
no higher than the lowest 10% of the whites. On the
general ability scale, the fifty percentile or mid-point
on the white scale corresponds with the ninety-five
percentile of the Negro scale. In other words, only 5%
of the Negroes are above the mid-point of the white
general ability level. Studies of grades at the Univer
sity of Florida indicate that white high school seniors
with placement test percentile ranks below fifty have
less than a 50% likelihood of making satisfactory
grades in college. While factors such as size of high
19
school, adequacy of materials, economic level, and home
environment are recognized as being contributing fac
tors, no attempt is made here to analyze or measure
the controlling factors.”
In some large schools it is possible to divide students in
the same age groups into different classes, taking into con
sideration their achievement level, but smaller schools do
not have sufficient classroom space or teachers to make
such a division possible. In the latter class of schools it is
clear that an immediate and arbitrary intermingling of
students falling into such widely divergent achievement
level groups could only result in lowering the scholastic
standards of the entire school and adding to the problems
of discipline and instructional procedures. The Negro stu
dents would suffer if compelled to compete against white
students of the same age but whose achievement level was
2 or 3 grades higher and the ^white students would be
seriously retarded.
This problem is not insoluble and it is not advanced as a
reason for permanent segregation in the schools. It is, how
ever, a problem which must be taken into consideration by
school officials in any attempt at integration of the races
in the schools and it is a problem which will require careful
planning, new techniques, and a great deal of time if it is
to be solved without doing serious harm to both races and
to the school system.
(d) Health and Moral Welfare
Still another example of school administrative problems
in achieving an integrated school system is related to
health and moral welfare. Writing in the Readers Digest,
September, 1954, page 53, Mr. Hodding Carter, Editor and
Publisher of the Delta Democrat Times, Greenville, Miss
issippi, said:
20
“ If only because of economic inequalities, there is a
wide cultural gap between Negro and white in the
South, and especially in those states where dwell the
most Negroes. These heavily Negro states are also
largely agrarian. Among the rural and small-towm Ne
groes, the rates of near-illiteracy, of communicable
diseases, of minor and major crimes are far higher
than among the whites. The rural Negro’s living stand
ards, though rising are still low, and he is still easy
going in his morals, as witness the five to ten times
higher incidence of extramarital households and ille
gitimacy among Negroes than among whites in the
South. The Southern mother doesn’t see a vision of a
clean scrubbed little Negro child about to embark on a
great adventure. She sees a symbol of the cultural lags
of which she is more than just statistically aware.”
Specifically, with regard to Florida, the State Board of
Health reports that during the year 1953 there was a total
of 58,262 white births in the state, of which 1,111 were ille
gitimate. During this same period there was a total of
21,825 Negro births of which 5,249 were illegitimate. Per
centagewise, this means that 1.9% of white births in Florida
during 1953 wTere illegitimate and 24% of Negro births
were illegitimate1.
According to the State Board of Health there was a total
of 11,459 cases of gonorrhea reported in Florida during
1953 of which 10,206 were among the Negro population.1 2
We feel that this cultural gap should be honestly recognized
by both white and Negro leaders as a problem requiring
time for solution rather than an arbitrary and blind refusal
to admit that it exists or that it is related to public school
administration.
1. Annual Report, Florida State Board of Health for 1953, Sup
plement No. 1, Florida Vital Statistics.
2. Annual Report, Florida State Board of Health 1953, Supple
ment No. 2, Florida Morbidity Statistics 1953, Table No. 5,
page 25.
21
C. The Need For Time
In Gaining Public Acceptance
There is a need for time in gaining public acceptance of
desegregation because of the psychological and sociological
effects of desegregation upon the community.
I. A SURVEY OF LEADERSHIP OPINION
A sincere and exhaustive effort has been made by the
Attorney General of Florida to ascertain, as accurately as
possible, the feelings of the people of Florida with regard
to segregation in public schools. This survey was author
ized by the Florida Cabinet which allocated $10,000 for the
purpose. This effort was made primarily for the purpose
of obtaining information which would be of use to the
Court in formulating its final decree in the Brown case.
In making the survey and study, every possible precau
tion was taken to insure its impartiality and scientific ac
curacy. It was made with the advice and under the supervi
sion of an interracial advisory committee composed of in
dividuals chosen on the basis of their professional standing
in the field of education; specialized knowledge which would
be helpful in making such a study; reputation for civic
mindedness and impartiality and because they were will
ing to devote their time without pay in carrying out a task
so enormous in scope in the brief time available. A more
detailed explanation of the scientific methods and tech
niques employed in making this study is given with the
23
complete survey report itself, which is made a part of this
brief and included as Appendix A. The General Conclusions
of this report are as follows:
II. GENERAL CONCLUSIONS
1. On the basis of data from all relevant sources in
cluded in this study, it is evident that in Florida white lead
ership opinion with reference to the Supreme Court’s de
cision is far from being homogeneous. Approximately
three-fourths of the white leaders polled disagree, in prin
ciple, with the decision. There are approximately 30% who
violently disagree with the decision to the extent that they
would refuse to cooperate with any move to end segregation
or would actively oppose it. While the majority of white
persons answering opposed the decision, it is also true that
a large majority indicated they were willing to do what
the courts and school officials decided.
2. A large majority of the Negro leaders acclaim the
decision as being right.
3. Only a small minority of leaders of both races advocate
immediate, complete desegregation. White leaders, if they
accept the idea that segregation should be ended eventually,
tend to advocate a very gradual, indefinite transition period,
with a preparatory period of education. Negroes tend to ad
vocate a gradual transition, but one beginning soon and last
ing over a much shorter period of time.
4. There are definite variations between regions, coun
ties, communities and sections of communities as to whether
desegregation can be accomplished, even gradually, with
out conflict and public disorder. The analysis of trends
in Negro registration and voting in primary elections,
shows similar variations in the extent to which Negroes
have availed themselves of the right to register and vote. At
least some of these variations in voting behavior must be ac-
24
counted for by white resistance to Negro political participa
tion. This indicates that there are regional variations not
only in racial attitudes but in overt action.
Regional, county and community variations in responses
to questionnaires and interviews are sufficiently marked to
suggest that in some communities desegregation could be
undertaken now if local leaders so decided, but that in
others widespread social disorder would result from im
mediate steps to end segregation. There would be prob
lems, of course, in any area of the state, but these would
be vastly greater in some areas than in others.
5. While a minority of both white and Negro leaders
expect serious violence to occur if desegregation is at
tempted, there is a widespread lack of confidence in the
ability of peace officers to maintain law and order if serious
violence does start. This is especially true of the peace offi
cers themselves, except in Dade County. This has im
portant implications. While it is true that expressed
attitudes are not necessarily predictive of actual behavior,
there seems little doubt that there is a minority of whites
who would actively and violently resist desegregation,
especially immediate desegregation. It has been concluded
from the analysis of experiences with desegregation in
other areas, “ A small minority may precipitate overt re
sistance or violent opposition to desegregation in spite of
general acceptance or accommodation by the majority.” 1
6. Opposition of peace officers to desegregation, lack of
confidence in their ability to maintain law and order in the
face of violent resistance, and the existence of a positive
relationship between these two opinions indicates that less
than firm, positive action to prevent public disorder might
be expected from many of the police, especially in some
communities. Elected officials, county and school, also show
1. Kenneth B. Clark, “ Findings,” Journal of Social Issues, IX ,
No. 4 (1953), 50.
25
a high degree of opposition. Yet it has been pointed out,
again on the basis of experience in other states, that the
accomplishment of efficient desegregation with a minimum
of social disturbance depends upon:
A. A clear and unequivocal statement of policy by
leaders with prestige and other authorities;
B. Firm enforcement of the changed policy by author
ities and persistence in the execution of this policy
in the face of initial resistance;
C. A willingness to deal with violations, attempted
violations, and incitement to violations by a resort
to the law and strong enforcement action;
D. A refusal of the authorities to resort to, engage in
or tolerate subterfuges, gerrymandering or other
devices for evading the principles and the fact of
desegregation ;
E. An appeal to the individuals concerned in terms of
their religious principles of brotherhood and their
acceptance of the American traditions of fair play
and equal justice.
It may be concluded that the absence of a firm, enthusi
astic public policy of making desegregation effective would
create the type of situation in which attitudes would be
most likely to be translated into action.1
7. In view of white feelings that immediate desegregation
would not work and that to require it would constitute a
negation of local autonomy, it may be postulated that the
chances of developing firm official and, perhaps, public sup
port for any program of desegregation would be maximized
by a decree which would create the feeling that the Court
recognizes local problems and will allow a gradual transi
tion with some degree of local determination.
8. There is a strong likelihood that many white children
would be withdrawn from public schools by their parents
1. Experience shows that where the steps listed above have been
taken, predictions of serious social disturbances have not been
borne out.
26
and sent to private schools. It seems logical, however, that
this practice would be confined primarily to families in the
higher income brackets. As a result, a form of socio
economic class segregation might be substituted for racial
segregation in education.
9. It is evident that a vast area of misunderstanding as
to each other’s feelings about segregation exists between
the races. White leaders believe Negroes to be much more
satisfied with segregation than Negroes are and Negro
leaders believe that whites are much more willing to accept
desegregation gracefully than whites proved to be. Hence
a logical first step towards implementing the principle set
forth by the Court, and one suggested by both whites and
Negroes, would seem to be the taking of positive, coopera
tive steps to bridge this gap and establish better under
standing between the two groups.
10. Although relatively few Negro leaders and teachers
show concern about the problem, white answers indicate
that Negro teachers would encounter great difficulty in
obtaining employment in mixed schools. To the extent that
desegregation might proceed without parallel changes in
attitudes towards the employment of Negro teachers in
mixed schools, economic and professional hardships would
be worked on the many Negro teachers of Florida.
11. Since 1940, and particularly since 1947, the State of
Florida has made rapid and steady progress toward the
elimination of disparities between white and Negro edu
cational facilities as measured by such tangible factors as
teacher salaries, current expenditure per pupil, teacher
qualifications, and capital outlay expenditure per pupil.
12. In spite of the current ambiguity as to the future of
dual, “ separate but equal” school facilities the State is pro
ceeding with an extensive program of construction of new
school facilities for both white and Negro pupils, with a
27
recommended capital outlay of $370 per Negro pupil and
$210 per white pupil. Both this and the previous finding in
dicate that, while these steps have been taken within the
framework of a dual educational system, there is a sincere
desire and willingness on the part of the elected officials
and the people of Florida to furnish equal education for all
children.
13. Available achievement test scores of white and Ne
gro high school seniors in Florida indicate that, at least in
the upper grades, many Negro pupils placed in classrooms
with white pupils would find themselves set apart not only
by color but by the quality of their work. It is not implied
that these differences in scores have an innate racial basis,
but it seems likely that they stem from differences in eco
nomic and cultural background extending far beyond the
walls of the segregated school, into areas of activity not
covered by this decision.
14. Interracial meetings and cooperative activities al
ready engaged in by teachers and school administrators in
many counties demonstrate steps that can be, and are being
taken voluntarily and through local choice to contribute to
the development of greater harmony and understanding
between whites and Negroes in Florida communities.
The specific findings of this survey regarding leadership
opinion as expressed through mailed questionnaires are:
1. White groups differ greatly from each other in
their attitudes towards the Court’s decision, ranging
from nearly unanimous disagreement to a slight pre
dominance of favorable attitudes. (See Table 2, page
136, Appendix A )
2. White groups also differ from each other in will
ingness to comply with whatever courts and school
boards decide to do regardless of their personal feel
ings. (See Table 4, page 139, Appendix A )
3. Peace officers are the white group most opposed
to desegregation. (See Table 3, page 138, Appendix A )
28
4. Almost no whites believe that desegregation
should be attempted immediately. (Table 2, page 136,
Appendix A )
5. A large majority of both Negro groups are in
agreement with the Court’s decision declaring segre
gation unconstitutional. (Table 3, page 138, Appendix
A)
6. While only a small minority of both Negro groups
believe that desegregation should be attempted imme
diately, an even smaller minority would oppose at
tempts to bring about desegregation or refuse to co
operate. (Table 2, page 136, Appendix A)
7. Only a minority of whites in all groups believe
that opponents of desegregation would resort to mob
violence in trying to stop it. A larger proportion, but
still a minority, believe that serious violence would re
sult if desegregation were attempted in their commu
nity in the next few years. (Table 5, page 140, Ap
pendix A)
8. A yet smaller minority of both of the Negro
groups anticipate mob violence or serious violence as
a result of steps towards desegregation. (Table 5,
page 140, Appendix A)
9. The majority of all white groups are not sure that
peace officers could cope with serious violence if it
did occur in their communities, replying either “ no”
or “ don’t know” to the question. (Table 6, page 141,
Appendix A )
10. A much smaller proportion of both Negro groups
expresses doubt as to the ability of law enforcement
officials to deal with serious violence. (Table 6, page
141, Appendix A )
11. The majority of most of the white groups believe
that peace officers could maintain law and order if
minor violence occurred. (Table 7, Appendix A)
12. The Negro groups did not differ greatly from the
white groups in the proportion believing that police
could cope with minor violence. (Table 7, Appendix A )
29
13. Only 13.24 per cent of 1669 peace officers believe
that most of the peace officers they know would en
force attendance laws for mixed schools.
14. A majority of the members of all white groups
except peace officers, (who were not asked): radio sta
tion managers; and ministers, believe that most of the
people of Florida and most of the white people in their
communities disagree with the Court’s decision. (Table
8, Appendix A)
15. In the five white groups asked, from one-fourth to
one-half of the respondents believed that most of the
Negroes in their community were opposed to the de
segregation ruling. (Table 8, Appendix A)
16. A much smaller proportion of both Negro groups
believe that most of the people of Florida, most of the
whites in their community, and particularly the Negroes
in their communities are in disagreement with the prin
ciple of desegregation. (Table 8, Appendix A)
17. Only a small minority of all groups, white and
Negro believe that immediate assignment of children
to schools on the basis of geographical location rather
than race would be the most effective way of ending
public school segregation. (Table 9, Appendix A)
18. All groups think a gradual program of desegre
gation would be most effective. Negroes, however, pre
fer that the process start within the next year or two
with immediate, limited integration much more fre
quently than do whites. The whites prefer a very grad
ual transition with no specified time for action to begin.
(Table 9, Appendix A )
19. Whites who expressed an opinion believe that the
primary grades and the colleges are the levels on which
desegregation could be initiated most easily. On the
other hand, almost as many Negroes believed that
segregation should be ended on most or all grade levels
simultaneously as believed it should be ended first at
the lowest and highest grade levels.
20. The maintenance of discipline in mixed classes by
Negro teachers is regarded as a potential problem by a
30
majority of white principals, supervisors and PTA
leaders. A much smaller proportion of Negroes re
garded this as a problem, with a majority of Negro
principals believing that colored teachers could main
tain discipline in mixed classes. (Table 11, Appendix
A)
21. A majority of all white groups believe that white
people would resist desegregation by withdrawing
their children from the public schools, but a much
smaller proportion of Negroes, less than a majority
believe that this would happen. (Table 11, Appendix A)
22. Almost two-thirds of white school officials—su
perintendents, board members, and trustees—believe
that application of Negroes to teach in mixed schools
would he rejected. (Table 11, Appendix A)
It should be noted at this point that this opinion is sup
ported by the experience of other states where desegrega
tion of schools has already taken place. The August 27,1954,
issue of U. S. News and World Report, page 35, states,
“ In the north, protests from white parents tend to drive
Negro teachers out of the schools to which their children go.
The same thing is expected in the South when desegregation
comes to the schools there. An illustration of what happens
in the North is shown by the experience of Jeffersonville,
Indiana. The town lies in the southern part of the State,
just across the Ohio River from Kentucky. A great deal of
Southern tradition and many Southern customs have
reached across the river. Jeffersonville is just completing
desegregation of its schools. There have been few un
happy incidents. But there has been a greater problem with
teachers than with children in the schools. There were 16
Negro teachers in Jeffersonville when desegregation was
started in 1948. By 1951 their number had dwindled to
11 as school enrollments were consolidated. For the school
year starting in autumn, 1951, only three Negro teachers
were retained. They had achieved permanent tenure under
State law, and could be discharged only for cause.”
31
Florida now employs 19,848 persons in instructional po
sitions not including supervisors. 4,721 of these teachers
are Negroes. (Biennial Report, Superintendent of Public
Instruction, State of Florida, 1950-51)
23. Nearly three-fourths of school officials believe
that it would be difficult to get white teachers for
mixed schools. (Table 11, Appendix A )
24. Almost half of school officials and a little over
40% of white PTA leaders believe that the people of
their communities would not support taxes for desegre
gated schools, but only about 20% of Negro PTA lead
ers believe that such support would not he forthcoming.
(Table 11, Appendix A )
25. In the case of all potential problems on which
both Negroes and whites were questioned a smaller
proportion of Negroes than of whites indicate belief
that problems would arise as a result of desegregation.
(Table 11, Appendix A)
26. In the case of peace officers there is a positive
relationship between personal disagreement with the
decision and lack of confidence in the ability of peace
officers to cope with serious violence. There is an even
higher positive relationship between belief that segre
gation should be kept and belief that peace officers
would not enforce school attendance laws for mixed
schools. (Table 12, Appendix A)
Regional Variations. The responses to certain items of
the two largest groups polled, the peace officers and the
white school principals and supervisors, were analyzed by
region of the state in which the respondents lived. The 67
counties of Florida were grouped into 8 regions defined by
social scientists at the Florida State University in “ Florida
Facts” (Tallahassee, Florida; School of Public Adminis
tration, The Florida State University).
Clear-cut regional variations in attitudes and opin
ions are found to exist, as is indicated by the following
findings;
32
27. Although the majority of peace officers in all
regions feel that segregation should be kept, the per
centage feeling so varies from 83% in two regions to
100% in one region. (Table 14, Appendix A)
28. The percentage of white principals and super
visors who are in disagreement with the decision varies
from 20% to 60% in different regions. (Table 15, Ap
pendix A)
29. A large majority of white principals and super
visors in all regions indicate that they would comply
with the decision regardless of personal feelings, but
the percentage varies from 76% in Region Y II to ap
proximately 94% in Regions V I and VIII. (Table 16,
Appendix A)
30. The percentage of peace officers predicting mob
violence as a method of resisting desegregation varies
from 20% in Region V III to nearly 63% in Region
V II (Table 17, Appendix A ).
31. Percentages of both peace officers and white
principals and supervisors predicting serious violence
in the event desegregation is attempted vary widely
between some regions (Table 18, Appendix A ).
32. The majority of both peace officers and white
principals and supervisors in all regions doubt that the
police could maintain law and order if serious violence
occurred, but there are some regional variations.
(Table 19, Appendix A )
A Note on Responses of Legislators. Although the 79
members of the state legislature and legislative nominees
who returned questionnaires constitute almost 45 per cent
of the 176 legislators to whom the forms were sent, general
izations as to the entire membership of the legislature on
the basis of their responses are entirely unwarranted. Any
attempt to predict the action of the legislature at its next
session would be even more presumptuous. The responses
of these legislators to two special questions asked of them
are presented below as a matter of interest, however.
33
The legislators were asked to indicate which of five pos
sible courses of action should be followed at the next ses
sion of the legislature. The percentage checking each course,
and the details of the five courses of action, are shown in
Table 20.
The legislators were also asked whether they believed
that there is any legal way to continue segregation in
Florida schools indefinitely. Of the 79 respondents, 34.20
per cent replied “ Yes,” 25.31 per cent replied “ No,” and
39.32 per cent answered “ Don’t Know,” or gave no answer.
m . THE DADE COUNTY REPORT
A separate intensive study was made by the Attorney
General’s Advisory Committee under the immediate super
vision and direction of a research team from the Depart
ment of Government of the University of Miami. This study
was made of the greater Miami area and some outlying
sections in neighboring counties in the belief that this part
of Florida might have different problems of integration
from other parts of the state due to its geographic location
and density of population. The results of this study are in
cluded as a part of the overall project and set out in
Appendix A.
IV. DISCUSSION
The implications found in the Florida survey are many
and varied but it is significant that to a remarkable extent
they verify and coincide with the conclusions and observa
tions set forth in the book by Mr. Harry S. Ashmore, “ The
Negro and the Schools” . The book is the result of an
exhaustive research study sponsored by the Ford Foun
dation for the Advancement of Education of the problem
of segregation in the south as the title implies.
34
For example, Mr. Ashmore states (page 81, “ The Negro
and the Schools) :
“ The most important factor in integration of the
public schools in the non-South, finally, is community
attitudes. It is axiomatic that separate schools can he
merged only with great difficulty, if at all, when a great
majority of the citizens who support them are actively
opposed to the move. (Italics supplied) No other
public activity is so closely identified with local mores.
Interest in the schools is universal, and it is an interest
that directly involves not only the tax-payer hut his
family, and therefore his emotions. Those who are in
different to all other community affairs tend to take a
proprietary interest in the schools their children at
tend, or will attend, or have attended. State influence
in public education has grown in recent years in pro
portion to the increase in state aid, but state policies
rarely are so important as local forces in the shaping
of public educational policies and practices. . . .
“ The most meticulous house-to-house poll in any
American community with a sizeable Negro population
would doubtless turn up a negative response to a pro
posal to integrate the separate public schools. In the
case of the whites this might reflect deep-seated race
prejudice, or it might he no more than the normal,
instinctive resistance to any marked change in the ac
customed patterns of everyday living. In many cases
the basis of objection might be the demonstrable fact
that the great majority of American Negroes are still
slum-dwellers; many a parent who proudly considers
himself wholly tolerant in racial matters will object
to having his child associate with classmates of inferior
economic and social background. It is probable that
some resistance to integration would even be recorded
among Negroes, who might respond negatively out of
simple fear of the unknown, or the desire to protect
their children against possible overt discrimination by
white classmates or teachers. The great problem for
schoolmen who have been moved to consider integration
by their own convictions, or by the prodding of higher
authority, has been to determine whether the passive
35
resistance which they can readily sense will be trans
lated into active resistance once the issue is drawn.
“ In any event the superintendent who is called to
take his school system from segregation to integration
must be prepared to function as a 1 social engineer’
(Italics supplied). He will deal on a mass scale with
delicate problems of human relationships involving
not only pupils and teachers but the community at
large.
“ These case studies demonstrate that wherever there
has been an active and well-planned program to ‘ sell’
integration to the community at large it has succeeded
—but here again there is no way to measure just how
difficult the selling job really was. The most notable
examples are to he found in New Jersey, where a well-
staffed state agency made it its business to work closely
with those communities which had long practiced seg
regation and appeared resistant to the change required
by the new constitution. Although New Jersey’s Divi
sion Against Discrimination was armed with the power
to withhold state funds and even to bring misdemeanor
charges against school officials who refused to comply,
it accomplished the integration of 40 formerly segre
gated school districts without invoking these powers
in a single instance . . .
“ At the other end of the scale is Cairo, Illinois,
where the effort of the NAACP to force a reluctant
school board to accept the state ban on segregation
led to violence. Cairo in almost every aspect of its
community life, may be classified as a ‘ sick city,’
and there is no indication of anything approximating
an orderly interracial approach to the problem either
before or after integration became an explosive issue.
“ Between these two extremes lie most of the non-
Southern cities. They are, for the most part, beyond the
reach of any possible decision of the Supreme Court
in the test cases, for segregation in the schools of the
non-South is now rarely bolstered by law, and where
it is it would hardly miss the legal prop if it were struck
down. Desegregation is proceeding there at a rate
determined by the willingness of individual communi-
36
ties to accept the change— or by the willingness of
community leaders to put the issue to the test.”
The same recognition of the problems involved in de
segregation and the obvious need for adequate time to give
local school administrators an opportunity to devise plans
and means of overcoming the problems is found in the
thinking of almost all authorities who have made a study
of the subject.
In discussing the Problems of Desegregation, Dr. Tru
man M. Pierce, Professor of Education, George Peabody
College for Teachers, and Director of the Cooperative Pro
gram in Educational Administration (Southern Region)
had this to say (see page 91 Journal of Public Law, Emory
University Law School, Vol. 3, Spring 1954, Number 1).
“ People respond well, in general, to the opportunity
of discussing with each other mutual concerns and in
terests. Controversial subjects discussed in the public
arena under skillful leadership can often be resolved
with a minimum of conflict. Effective public forums on
the community level provide experiences in self-govern
ment which can hardly be surpassed in satisfactions
which they bring and in progress they stimulate. How
ever, questions tinged with a high degree of emotion
alism offer ready-made opportunities for rabble rous-
ers and self-seekers to do serious harm. Consequently,
the calm, sane and relatively objective approach, which
can be expected from most of the substantial citizens
of the average community, is essential in the types of
discussion suggested. It is hardly necessary to point
out that such public forums should avoid emotional
binges and concentrate on the study of facts. The third
principle is that responsible and public spirited citizens
of both races should discuss together the facts con
cerning their school system and together make plans
for its improvement. This does not imply that the board
of education should be by-passed, for final policy must
be determined by this legally constituted body.
37
“ Ill-advised and hasty action, determined without
benefit of a period in which calm deliberation takes
place (Italics supplied) can do more harm than good.
Urgency need never take precedence over wisdom.
Piecemeal and stopgap policies are likely to prove un
sound and wasteful in the long run. Therefore, the
final principle which is suggested is that extensive
policy setting based on thorough study and careful
thought should provide the framework for a thorough
and comprehensive program of work extending as far
into the future as is practical.”
Dr. Howard W. Odum,1 in discussing “ An approach to
diagnosis and direction of the problem of Negro segregation
in the public schools of the South” says (Journal of Public
Law, Emory University Law School, Yol. 3, Spring 1954,
No. 1, page 34) :
“ Final assumptions must rest upon continuing ex
ploration, education, testing grounds for federal and
state programs, and for a working balance between
voluntaristic and coercive action. For, from special
studies, general observations, and recorded experi
ences, it must he clear that all our exhibits of evidence
appear as a sort of tug of war, now moving this way,
now that. The real definition of the situation comes
back again and again to inferences about issues, cul
tural values that are characteristic of the region, and to
exploration and survey, projection of trends and pre
dictions, and potentials that Qan be identified with
alternatives. In this dilemma it would seem that never
have the old classical, ‘ On the one hand and on the
other,’ and ‘ but also,’ appeared to carry such a multi
tude of dichotomies, paired contradictions, major pre
mises assumed, ‘ ands,’ ‘ ors,’ and ‘ huts,’ in the loom of
interaction processes. And rarely ever have we run
across so many generalizations based upon so little
basic research or tested observations. All of this is
1. Professor of Sociology, University of North Carolina; past
president of the American Sociological Society; editor, Social
Forces; author, American Sociology (1951) and other books.
38
relevant not only to the elemental cataloguing of facts
and the appraisal of causal factors, but to the orienta
tion of value judgments and strategy priorities.”
Everyone concerned in the State of Florida with the
problems inherent in any attempt to desegregate schools,
whether he be a member of the legislature or a school official
cannot help but be aware that any change which is under
taken from the status quo must be made with at least the
passive approval of the people in the community who will be
affected by the change. Mr. Ashmore (The Negro and the
Schools, page 135) states:
“ Finally, there is the hard fact that integration in a
meaningful sense cannot be achieved by the mere phys
ical presence of children of two races in a single class
room. No public school is isolated from the community
that supports it, and if the very composition of its clas
ses is subject to deep-seated and sustained public dis
approval, it is hardly likely to foster the spirit of united
effort essential to learning. Even those who are dedi
cated to the proposition that the common good demands
the end of segregation in education cannot be unaware
that if the transition produces martyrs they will be the
young children who must bear the brunt of spiritual
conflict.”
39
D. Intangibles
In Education
This Court has recognized the validity and significance of
certain intangibles in education. Quoting from the Brown
decision it said “ In Sweatt v. Painter, supra, in finding that
a segregated law school for Negroes could not provide
them equal educational opportunities, this Court relied in
large part on ‘ those qualities which are incapable of ob
jective measurement but which make for greatness in a
law school’ .
“ In McLaurin v. Oklahoma State Regents, supra, the
Court, in requiring that a Negro admitted to a white grad
uate school be treated like all other students, again resorted
to intangible considerations: ‘ . . . his ability to study, to
engage in discussions and exchange views with other stu
dents, and, in general, to learn his profession.’
“ Such considerations apply with added force to children
in grade and high schools. To separate them from others
of similar age and qualifications solely because of their
race generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds in a
way unlikely ever to be undone. ’ ’
The legislature of Florida was motivated by the same
consideration of “ intangibles” in education when it en
acted Section 242.46, Florida Statutes. This law prohibits
secret societies including fraternities and sororities in the
public schools. The legislature and school officials recog
nized that in some instances fraternities generated feelings
41
of snobbishness on the part of the members and feelings of
inferiority on the part of those not invited to join. It was
considered that these feelings might in the words of the
court “ affect their hearts and minds in a way unlikely ever
to be undone.”
W e believe that this Court should recognize the validity
and significance in education of other “ intangible consid
erations” which may result from a precipitate attempt to
compel desegregated schools in all areas of Florida. It is
obvious that children reflect in their attitudes much of the
same deep-seated prejudices and antagonisms felt by their
parents. In the many areas of Florida where these feelings
are known to exist no school administrator could compel
an immediate desegregation without the certain knowledge
that he was placing the children in a situation which could
only result in generating feelings of hatred, inferiority and
bias which would ‘ ‘ affect their hearts and minds in a way
unlikely ever to be undone.”
42
E. Reason for Hope
There is some reason to believe that segregated schools
can be ended in Florida in an equitable manner without de
stroying the school system itself. But there is no reason
to believe that this can be accomplished hurriedly or through
the legal coercion of school officials who would thus find
themselves caught in the impossible dilemma of confronting
on the one hand the irresistible force of a judicial edict
which must be obeyed and on the other hand the immovable
object of public opinion which cannot be altered. The
only hope for a solution is for this Court to restrain the
use of coercive measures where necessary until the hard
core of public opinion has softened to the extent that there
can be at least some measure of acceptance on the part of a
majority of the people.
This recognition of the need for time and tact and wis
dom in bringing about a true realization of the goal set
by this Court, is shared by leaders of both the white and
Negro races in Florida.
Dr. Mary McLeod Bethune, founder of Bethune-Cook-
man College at Daytona Beach, Florida, and a recognized
leader of the Negro people throughout the nation for many
years, stated in a press release soon after the announcement
of this Court’s decree in the Brown case:
“ . . . The High Tribunal has put a legal foundation un
der a belief many of us have long held and which is
clearly and concisely stated in the most basic Ameri
can ideal, ‘ AH men are created equal.’
43
“ In quietness and patience, people of culture receive
this news, realizing the inevitable has at last come
about. They also realize, however, that the absorption
into our daily life of this new decision—the putting
of it into practice—must represent an organic cul
tural assimilation which, like all social processes, will
take time. But eventually the wrongs and mistakes of
history are righted and remedied and inhumanities are
rectified......... Let us enter into this integration calmly,
with good judgment. Let us give and take, working
out together the best possible means we can put into
action so that there may be peace and understanding,
and, may I say, the spirit of brotherhood.
“ There is much for the Negro to do as well as the white.
We must use tact and wisdom. It will take conferences,
thinking and planning and working side by side. More
largely than is realized, we are good, loyal, American
citizens. And whether we be north, east, south or west,
we shall put forth every effort to meet the requirements
of our new status.”
There is reason to believe that given the opportunity for
voluntary local action and sufficient time an effort will be
made on the part of educational leaders of both races in
Florida to work together to achieve the goal set by the
Court.
United States Senator Spessard L. Holland of Florida,
speaking of desegregation, said in a press interview (Tampa
Tribune, August 28, 1954, page 1):
“ We cannot spend all our time in vain regrets, but
rather time must be spent in trying, as apparently the
State Cabinet has been doing along with officials and
educators of both races at the local level, to learn how
to bring it about.”
On July 15 and 16, 1954, the Continuing Educational
Council of Florida met in Tallahassee to consider the prob
lem of desegregation. This Council is composed of repre
sentatives from virtually all civic, labor, veteran and edu-
44
eational organizations in the state. Seventy members of
the Council were present at the Tallahassee meeting and
the future course of Florida schools in the light of the
Court’s decision in the Brown case was discussed for two
days. At the end of its deliberations the Council adopted
the following motion:
“ Based on information and reports at this time, the
Council joins with the request of the State Cabinet,
heretofore made, whereby the Attorney General of
Florida take every step necessary to prepare and file
a brief which Florida and several other states have
been invited to submit when consideration is given this
October to the ‘ when’ and ‘ how’ provisions of the
Court’s judgment in the recent decision holding segre
gation unconstitutional. It now appears that this brief
should emphasize among other things the following:
1. The maximum time possible should be granted the
states affected. 2. Compliance with regard to time
should be on a local basis; the time requirement be
cause of mores and conditions will vary within coun
ties of each state. 3. Enforcement provisions of the
judgment’s requirements should be left to the Courts
of first instance.”
Additional agreements which were reached by a large
majority of the Council in discussion of the Supreme Court
decision on segregation were as follows:
1. “ The public school system of Florida should be
maintained and improved. Nothing should be done
which will destroy these schools or cause them to retro
gress in any way.”
2. “ The citizens of Florida will wish to abide by the
laws of our nation, but time for necessary adjustments
is essential if serious problems are to be avoided.”
3. “ The problems of adjustment are different in each
county and in various communities within each county.
Responsibility for solution of these problems rests
with the citizens and authorities within these local
areas.”
45
4. “ A committee from the Continuing Educational
Council, with outside representation as well, is to be
appointed. Its function is to suggest multiple plans
by which desegregation may be implemented. Among
the ideas developed would be the suggestion that local
groups of white and Negro citizens make careful ap
praisal of existing conditions with the idea of pro
ceeding gradually and in an orderly manner toward
compliance with our National Constitution.”
5. “ A committee of nine representatives from the Con
tinuing Educational Council is to meet with a repre
sentative group of State Negro leaders for the purpose
of developing a joint statement to serve as a guide to
both races in working out the problems ahead.”
On July 30th, 1954, fifty representative Florida Negro
leaders met at Edward Waters College in Jacksonville to
study the problem of integration of Florida schools. As a
result of this meeting a committee of nine was selected to
meet with a similar committee of the Continuing Educa
tional Council of Florida for the purpose of studying ways
and means of implementing the Supreme Court’s decision
in Florida.
On September 10, 1954, a committee representing the
Continuing Educational Council, and a committee repre
senting the Leadership Conference, a recently convened
meeting of Negro leaders, met in Tallahassee to consider
jointly some of the problems posed by the recent Supreme
Court decision that segregation in the public schools is
unconstitutional.
After lengthy consideration and frank discussions of the
various viewpoints of both whites and Negroes, the joint
committees agreed upon the following motion:
“ 1. THAT, in a democratic society, public education is
of paramount importance;
THAT the State of Florida has made significant gains
46
in recent years in the quality of its educational pro
gram and in the educational opportunities for all the
youth of the State;
THAT the State of Florida cannot afford the educa
tional or economic loss which would occur if we per
mitted a disruption of this program;
THEREFORE, we believe that we must maintain and
support a strong system of public education for all the
youths of the State and that the citizens of Florida in
their local contacts, through constant education and
study, should work for the general education of all
the people as prescribed by the laws of our State and
Nation.
2. THAT we endorse the filing of the proposed brief by
the Attorney General for the purpose of preserving the
system of public education in the State of Florida when
a final interpretation has been rendered by the Supreme
Court.
3. THAT we urge this Committee to continue to work
on the processes necessary for ultimate compliance with
the law;
THAT we encourage the organization of similar groups
at the local level, i.e., school community by school com
munity, to work toward the same objectives.”
The motion was approved unanimously.
The Lakeland Ledger in an editorial August 29,1954 said:
“ In his annual speech to his home folk in Bartow on
Friday, Senator Holland took occasion to talk about
abolition of segregation in public schools. . .
‘ ‘ That attitude is the only one with which the problem
now at hand can be solved, and it is the attitude of all
clear thinking citizens in the South.
“ If the process is not rushed, there will be a good
chance of making the adjustment harmoniously over
a period of years.
“ If forces in the North that are unfamiliar with con-
47
ditions in the South insist upon rushing matters, there
is certain to he harmful friction.
“ The level-headed view such as that expressed by
Senator Holland must prevail.”
The Tampa Morning Tribune in an editorial August 26,
1954, said:
“ In the brief which he is preparing to submit to the
Supreme Court by October 1, Attorney General Ervin
asks the court to go slow in ordering actual compliance
with its edict of May 17 outlawing segregation. Mr.
Ervin said:
‘My purpose in filing the brief is to try to show the
court that Florida, from practical considerations, is
not ready for desegregation immediately, but that if
it must come eventually, it should come only after a
reasonable period of time and then only on a county
to county or local basis pursuant to administrative de
terminations made by local school authorities. It is en
tirely possible that if the court will authorize this course
many of the situations will not be too difficult to solve,
given time to work them out.’
“ That, in our view, is sound sense and should appeal
to the judgment of the high court. It is apparent that
a change in the existing order can be effected only
through careful and patient effort, on a local basis.
Also it may prove necessary to have action by the
Florida Legislature to properly implement the change.
The essential issue is the dividing line between federal
and state authority.”
The St. Petersburg Times of August 27, 1954, reported
a speech by County School Superintendent Floyd Christian
of Pinellas County to a meeting of Negro school teachers,
as follows:
“ Pinellas County Negro teachers were urged as leaders
of the community ‘ to work patiently, calmly and sen
sibly’ on the segregation problem so that all can con
48
tinue working together for the growth of the com
munity . . .
“ We live under the law and must follow the law. Riot
ing, hatred and action would wreck our school system
and is not the answer. Florida must never try to abolish
public education. Turning the schools into private in
stitutions is certainly not the answer. Any such action
would prove disastrous to the quality of education and
in the end would be judged by the Supreme Court as
being an effort to circumvent the provisions of the
Constitution of the United States.
“ What I am saying is in my opinion Florida should
not try to circumvent the law. Any such action would
encourage an attitude of general disregard for law
and in the long run will only increase the difficulties
without contributing anything toward the solution of
the problem...
“ There is another reason why this problem will have
to be approached with education and understanding.
I don’t believe that here in the South, where you have
had separate schools for nearly a hundred years, that
an immediate court decision to stop it and integrate the
students can be done successfully. I don’t believe you
can legislate the people into doing this, they will have
to be led by a systematic plan of education and this, of
course, will take time.”
The Ft. Myers News-Press in an editorial August 28,
1954, said:
“ A number of Fort Myers citizens have received by
mail this week circular letters purporting to come from
the Ku Klux Klan which attempt to fan the flames of
racial intolerance over the school segregation issue and
make a bid for Klan recruits.
“ The letters enclose an application blank for mem
bership in the Klan returnable to an Orlando post office
box. Whether they represent a bona fide recruiting
drive by the Klan or just an effort of some crackpot
or promoter trying to cash in on the current anxiety
over prospective desegregation in the schools, the re
49
cipients have no way of knowing, although Orlando
always has been a hotbed of Ku Kluxism and the appli
cation blank probably is genuine.
“ There is nothing doubtful, however, about the hate
literature enclosed with the KKK circulars. The fat
envelopes—so bulky that most recipients had to pay an
extra three cents postage due—were crammed with
highly inflammatory articles against the Negro race
and slanders against various public officials and indi
viduals fit only for the sewer. In the delicate situation
which now confronts both whites and Negroes arising
from the Supreme Court anti-segregation ruling—a
situation that calls for all the calmness and clear think
ing that can be mustered— outpourings such as this are
not only unhelpful but dangerous.”
The Orlando Sentinel in an editorial August 19, 1954,
said:
“ As a result of a survey recently completed by an
interracial committee appointed by the attorney gen
eral, it has been made perfectly clear that even in Flor
ida many people of both groups are not ready to send
their children to the same school together, and that
law enforcement agencies are not prepared to enforce
such laws or to prevent the violence which would arise
under such circumstances.
“ The problem varies from community to community
just as it does from state to state and the difficulty in
creases in direct ratio to the number of Negroes present.
It would be a relatively simple matter to enforce de
segregation in a community where there would be only
one or two Negroes in a classroom, as would be the case
in most northern cities. It is not so simple where the
numbers of the two races are more nearly equal.
“ This happens to be the case in many of our smaller
north and west Florida towns, as well as in most of the
rural areas of South Carolina, Georgia, Alabama and
Mississippi. In some Florida cities, however, particu
larly in South Florida, there are relatively few Negroes
and the opposition to their admittance to white schools
is not so prevalent.
50
“ Clearly it would be unfair to expect public officials
to overcome the problems of integration all at the same
time without regard to the difficulties involved. The
Supreme Court should take cognizance of the inherent
differences among individuals as among communities
and leave the problem of when desegregation can safely
be accomplished to local authorities.”
The Miami Herald in an editorial of May 24, 1954, said:
“ Anticipating that the United States Supreme court
might end segregation in the schools, as it did last week,
Florida leaders have been quietly taking stock of the
state’s educational resources.
‘ ‘ They recognized that the change, when it came, would
be the most momentous since the War Between the
States, and no family would escape its effects.
“ What this study showed was that Florida has made
more progress in Negro education, probably, than any
other state with segregation, and is in a better posi
tion to meet the challenge of the court ruling.”
These meetings and examples of editorial opinion may
appear insignificant but when considered in relation to the
fact that they took place in a State which still has three
counties where no Negroes have registered to vote (see
page 178, Appendix A ), and whose peace officers are over
whelmingly opposed to desegregation in any form (see
Table 3, page 138, Appendix A ), they should not be ignored.
We believe that any attempt to compel cm immediate de
segregation in Florida schools would constitute a shock
treatment so drastic that any further efforts on the part
of these and similar groups would be promptly nullified.
Such efforts on the part of citizens’ committees of both
races can only take place as voluntary manifestations of
good citizenship. They cannot take place in an atmosphere
of fear and coercion.
51
F. Regional
Variations
One of the most important factors which has emerged
from our study of the segregation problem in Florida is the
clear indication of marked regional variations in the in
tensity of the feelings of the people.
The State of Florida is unlike other Southern states in
one significant respect. Geographically it is large and
sprawled out over an area of a thousand miles extending
from Pensacola in West Florida to Key West on the south
ernmost tip.
Between these two extremes can be found startling dif
ferences in the social customs and traditions of the people
inhabiting the various counties.
Generally speaking, the influx of people from northern
states has tended to settle in South Florida and this has
altered to some extent the social pattern of South Florida
counties, whereas North and West Florida counties have
remained to a large extent populated by people of Florida
or Southern ancestry who cling to Southern traditions and
customs.
It must be emphasized, however, that this type of gen
eralization is apt to be misleading because counties and
communities may be found in South Florida where the de
gree of racial differences in feeling may be even more pro
nounced than in the northern part of the state.
These variations indicate that there may be communities
53
in Florida where conditions are such that local school offi
cials would feel justified in proceeding within a relatively
short time to integrate the white and Negro schools. On
the other hand, there are many counties, notably those
having a large Negro population, where it is apparent that
any attempt to bring about immediate desegregation would
result in violence and bring the school system to a complete
standstill.
These variations in community attitudes and conditions
preclude the practicability of any overall, statewide de
tailed plan, time schedule or target date for desegregation
which might he evolved. We believe that whatever plan
and time schedule is adopted in each community must, if
it is to be workable, have been produced through the efforts
of the local school officials who understand the specific prob
lems involved and who must be willing to undertake to
make the plan work. We do not believe that the courts
should undertake to perform the functions of local school
boards and we do not believe that this Court should insist
on a plan of action which, in its efforts to guard the rights
of some, must necessarily forsake the rights of all others.
54
G. Discussion
In suggesting an affirmative answer to question 4B, we
have attempted to take into consideration the wide range
and com plexity o f the problem. W e know that from its
common-sense practical aspects a successful implementation
requires the blending o f the best administrative and judicial
techniques over a reasonable period o f time which w ill vary
in each school district or county, dependent upon the cir
cumstances. Adm itted that segregation has been held un
constitutional as a class discrimination, that does not mean
that transition to the actuality o f non-segregated educa
tion can be accomplished immediately or w ithout planning
and preparation and adm inistrative actions.
The public welfare o f the segregated states is involved
in the transition along with administrative details. It would
be unwise not to permit the exercise o f reasonable regula
tions under the police pow er during the transitional period
in the interest o f peace in the community and good order
and safety in the schools. The white people o f the segregated
states have too long relied upon the doctrines expressed in
Plessy v. Ferguson, 163 U. S. 537,16 S. Ct. 1138, 41 L. Ed.
256 (1896) to be expected to accept com placently the new
order. Our survey am ply bears this out.
Therefore, we most earnestly and sincerely urge the
Court to permit that degree of latitude necessary to the
segregated states and the county school boards therein
to bring about an effective gradual adjustment to inte
gration so as to soften and ameliorate the transition
and preserve peace and order in the communities and the
55
schools in the process and that these officials be accorded
the discretion to make the transition successfully and
effectively in good time and good order.
Even though it has been held the Negro child should not
be discriminated against in his public education nor unduly
postponed in his enjoyment of it, surely that right is not so
absolute, so compelling in its nature, that reasonable admin
istrative procedures necessary for the public welfare can
not be asserted during the transition period. If there ever
was a condition which needs elasticity in the application
of constitutional guaranties to meet it, certainly it is the
transition period from the segregated school system to the
non-segregated school system in the various schools of the
South.
By a concurrent application of prudent and sensible ad
ministrative and judicial techniques the problem may even
tually be solved. But the Court should always allow the
states involved and their officials, both state and local, the
opportunity to first work out the problem and accord to
their determinations a wide degree of discretion and lati
tude in the integration. The Court has said in Minersville
School District v. Gobitis, 310 U. S. 586, 60 S. Ct. 1010, 84
L. Ed. 1375, (1940), it would not make itself the school hoard
of the country. That does not mean the Court, beginning
with the court of first instance, would not always reserve
the judicial authority to review and probe. It would ex
ercise this authority where in proper cases duly brought
it was alleged the county school board had not made the
requisite effort in good faith to desegregate in line with
appropriate criteria or factors which we believe the Court
will outline in its implementation decision. Parenthetically
and most earnestly, we urge the Court to accept the factors
we have outlined, believing them to be essential to suc
cessful implementation in the light of problems involved.
56
Part Two
Specific Suggestions
to the Court in
Formulating a Decree
57
Introductory Note
We do not suggest delay merely for the sake of delay
itself. We do suggest that sufficient time be permitted for
a gradual effective adjustment to desegregated schools to
take place in each community.
The period of time required will vary in each community
dependent upon its administrative problems and the attitude
of its people. The length of this period of transition in each
instance can only be determined by the local school authori
ties subject to the review of the courts of first instance
when called upon to consider specific suits brought because
of a disagreement with the school authorities over admis
sion policies.
We do not believe that any court should at any time
attempt to peremptorily compel school officials to integrate
schools in a community when it is apparent that such action
will create hostility and resentment to such a degree that
the schools cannot be operated in an orderly manner.
We believe that any attempt to establish an overall
specific plan for desegregation by the United States Su
preme Court as a result of recommendations of a special
master would be totally unrealistic and would in effect place
this Court in the position of attempting to function as the
county school board of the counties affected.
We believe that the courts of first instance should also
avoid any attempt to exercise administrative powers nor
mally delegated to school officials. They should not be
59
required to spell out in specific detail tlie means by which
they would require a school district to comply with the
new requirements of the law. Rather, let them leave to
responsible local school authorities the task of drafting
plans for transition, and then apply to each such plan pre
sented in the course of litigation the test of good faith.
Widespread white hostility to immediate, enforced inte
gration of the public schools is a fact of life in Florida, and
is just as real a factor in considering the future of public
education as school finance, school construction or any other.
We ask only this; that school officials not be deprived of
the right to recognize local factors related to the welfare of
public schools and to exercise the same discretion in dealing
with the feelings of the people regarding segregation that
they would exercise in dealing with any other local condition
or problem that directly affected the proper operation of the
public schools.
We urge, therefore, that the Supreme Court remand
these cases to the courts of first instance— in all but one
of these cases federal district courts— and that it vest in
the courts of first instance broad discretionary powers to
determine as findings of fact (1) what should be a reason
able time for transition in any given case, and (2) whether
or not specific plans for compliance with the Court’s general
directive prepared by responsible local school officials
measure up to the broad test of good faith.
We offer the following specific suggestions for the con
sideration of the Court in the formulation of its decree:
60
Specific Suggestions
I. It is suggested that the United States Supreme Court
in its implementation decision or decree adopt the pro
cedure contemplated in questions 4 (b) and 5 (d) as stated
in the footnote in the Brown decision:
“ 4 (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 (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?” II.
II. It is suggested that the United States Supreme Court
in its implementation decision in the Brown case direct that
the courts of first instance consider all suits brought to gain
admittance to a specific school and claiming discrimina
tion because of color, in accord with the following general
directions:
A. The petitioner must affirmatively show;
(1) That admission to the school in question was re
quested by the petitioner within a reasonable time
before the beginning of the school term.
(2) That the petitioner resides within the limits set
by normal geographic school districting of the school
he seeks to enter.
61
(3) That admission to said school was denied by
the local school authorities and that all other admin
istrative remedies such as appeal to the State Board
of Education (where provided by law) have been
exhausted.
B. It is suggested that the court of first instance con
duct hearings, take testimony, determine the merits
of the petition and the answer thereto and the equitable
reasons which may exist which would justify the school
authorities in refusing to approve the petitioner’s ap
plication for admission to the school in question. In
conducting such proceedings, the court should consider:
(1) Evidence as to whether the state school authori
ties and legislature have had a reasonable amount
of time to reorganize the legal provisions of the
state school structure to comply with the Brown
decision.
(2) Evidence of good faith on the part of the school
authorities in seeking to comply with the Brown de
cision and integrate the public schools. Such evi
dence should include:
(a) Efforts previously made and in progress to
overcome practical, administrative problems en
countered in integrating schools as proclaimed by
this Court.
(b) Efforts previously made and in progress to
promote citizens’ educational committees and in
terracial committees for the purpose of improving
racial relations in the community and avoiding
racial antagonisms in the schools. 3 4
(3) Evidence and recommendations submitted by in
terracial citizens’ committees which may be organ
ized pursuant to law for the purpose of assisting the
local school authorities, or evidence and recommen
dations submitted by impartial survey and fact
finding teams which may be created by the State
Board of Education pursuant to its administrative
powers.
(4) Evidence of existing administrative problems
62
of integration which have not as yet been solved and
which would jeopardize the efficient operation of the
school system if the petitioner’s application for ad
mission was granted immediately.
(5) Evidence of such a strong degree of sincere op
position and sustained hostility on the part of the
public to the granting of the petitioner’s applica
tion, as to give the school authorities reasonable
grounds to believe that immediate approval of the
petitioner’s application would cause a disruption of
the school system or create emotional responses
among the children which would seriously interfere
with their education. Such evidence should be care
fully analyzed by the court to determine its validity
and all evidence of this nature which might appear
to be simulated or fabricated for the purpose of con
tinuing segregated schools in the community should
be rejected.
( (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 be
cause of lack of school plant facilities or psycho
logical or sociological reasons if his application for
admission is denied.
(b) That the petitioner is not motivated in his ap
plication solely by a desire for the advancement
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 distinc
tion should be carefully drawn, { This Court has
ruled that segregated schools are forbidden by the
14th Amendment because they may deprive the
Negro of an equal opportunity in acquiring an edu
cation. During the process of desegregating schools
it should always be kept in mind that the sole legal
purpose of public schools is to educate. The
public school system has never been permitted
under Florida law to extend its activities into the
63
field of public welfare or related purposes. It is
not the purpose or within the legal authority of
the Florida public school system to provide a di
rect means of improving the social, political or
economic status of any group or individual except
as such improvement may in time result from edu
cation itself. Public schools are not intended to
provide experiments in race relations or to use
children as sociological guinea pigs in the solution
of problems in many walks of life which adults
have not been able to solve by other means.
III. It is suggested that based upon the testimony and
evidence submitted, the court of first instance may either:
(A) Order that the petitioner’s application for admis
sion to the school in question be granted forthwith, if
it appears that the petition was made in good faith
and that there exist no reasonable grounds for delay
on the part of the school board in approving the peti
tioner’s application for admission.
(B) Dismiss the petition if it appears that it was not
made in good faith and well founded in law according
to the interpretation of the 14th Amendment by this
court in the Brown case.
(C) Order the school authorities to hold the petition
er’s application in abeyance for a reasonable period of
time to allow for further adjustment to a single school
system if necessary, with directions to the school au
thorities to proceed to overcome as soon as possible
the practical or psychological and sociological factors
which prevent an immediate approval of the peti
tioner’s application.
If the latter alternative is found to be necessary by
the court it should include in its order the following:
(1) Fix a time for rehearing of the petitioner’s appli
cation by the court within a stated reasonable time
at which hearing additional testimony and evidence
will be received and the circumstances justifying
delay in approving the petitioner’s application for
64
admission will be re-evaluated by tbe court in the
light of altered conditions and a supplemental order
entered in tbe case in accord with tbe findings of tbe
court.
(2) Direct tbe school authorities to formulate and
submit to tbe court within a reasonable time a plan
designed to overcome the practical and psychological
obstacles which tend to prevent an immediate inte
gration of the schools under their jurisdiction. The
effectiveness of the plan submitted and the efforts
which the school authorities have made in good faith
to carry it out should be considered by the court on
subsequent rehearing of the case in determining
whether additional delay is justified in granting the
petitioner’s application for admission.
65
Part Three
Legal Authority of the Court to Per
mit a Period of Gradual Adjustment
and Broad Powers of Administrative
Discretion on the Part of Local School
Authorities.
67
'
A. Judicial Cases
Permitting Time
Many decisions of the United States Supreme Court and
the State Supreme Courts have recognized the necessity for
granting a reasonable time in which to comply with the
decree of the Court to avoid hardship or injury to public
or private interests.
The present decision requires more consideration of the
problem of time and adjustment than in the earlier cases
since it is apparent that it involves a vast problem of human
engineering, as contrasted to previous delays for adjust
ment granted in anti-trust cases, nuisance cases, and similar
cases where economic problems of great magnitude con
fronted the courts.
I. United States v. American Tobacco Co., 221 U. S. 106,
31 S. Ct. 632, 55 L. Ed. 663 (1911). Recognizing the need
for adjustment to its remedies in dealing with the unlawful
combinations under the Sherman Anti-Trust Act, the Court,
in order to avoid and mitigate possible injury to the interest
of the general public, decreed the commercial combination
to be illegal; and directed the Court below to hear the
parties, ascertain, and determine a plan or method of dis
solution, and to recreate a condition in harmony in law.
To accomplish this, the Court granted a reasonable period
(8 months) to effectuate its decree, while prohibiting any en
largement of the corporation’s monopoly during this period.
Briefly stated, six months, with a possible extension of
69
sixty days, was granted in which to work out a plan for
dissolving a combination found to control the tobacco in
dustry in violation of the Anti-Trust Act of July 2, 1890
(26 State at L. 209, Ch. 647, USC Title 15, si), and creating
out of the elements composing it a condition which would
not be repugnant to the prohibitions of the Act.
II. In Standard Oil Co. v. U. S., 221 U.S. 1 , 31 S. Ct.
502, 55 L. Ed. 619 (1910), the Court again recognized the
need for time in putting into effect its decision. In this
case Chief Justice White stated that the magnitude of the
interests involved and their complexity required that six
months be given in which to execute a decree for the dis
solution of a holding company controlling the oil industry
in violation of the Anti-Trust Act of July 2, 1890, and for
the transfer back to the stockholders of the subsidiary cor
porations of the stock which had been turned over to the
holding company in exchange for its own stock.
In the area of nuisance litigation, the Supreme Court has
often recognized the need for a period of gradual transition
in order to effectuate decisions. In the Case of New Jersey
V. New York, 283 U. S. 473, 75 L. Ed. 1176, 51 S. Ct. 519,
(1931), the State of New Jersey sued New York City in
the United States Supreme Court for an injunction restrict
ing the dumping of New York City’s garbage into the ocean
off the New Jersey coast. Injunction was granted in the
opinion by Butler, J., affirming a special master’s report.
A decree was entered, declaring that the plaintiff State of
New Jersey was entitled to an injunction as sought in the
complaint; but that before (italics supplied) an injunc
tion was issued, a reasonable time would be accorded to the
defendant, within which to carry into effect its proposed
plan for the erection and operation of incinerators to
destroy the waste materials which were being dumped off
the New Jersey coast, or to provide other means to be
approved by the decree for the disposal of such materials.
70
Reasonable time was a question of fact to be decided
upon by the same special master, after hearing and evalu
ating all witnesses ’ testimonies from each. party or witnes
ses which the master may select to be heard. The master was
then to report to the court his findings and a form of decree.
On a rehearing of the case on December 7, 1931, (284 U. S.
585, 75 L. Ed. 506, 52 S. Ct. 120) a decree was entered by
the Supreme Court prohibiting any further dumping of
refuse, etc., into the ocean off the coast of New Jersey.
Said decree was to become effective on and after June 1,
1933, and progress reports were to be filed with the clerk
of the Supreme Court on April 1 and October 1 of each
year beginning April 1, 1932, setting forth the progress
made in the construction of incinerator plants, etc., for the
final disposition of garbage and refuse, and also the amount
of material dumped at sea during the periods covered by
such reports.
Provision was also made in the decree that upon the re
ceipt of said reports, and on due notice to the other party,
either party to the suit could apply to the Court for such
action or relief with respect to the time allowed for the con
struction, or method of operation of the proposed incinera
tor plants, or other means of final disposition of garbage,
etc., as may be deemed appropriate. In other words, the
flexibility of the decree permitted frequent re-evaluation to
promote the greatest justice to all parties.
On May 29,1933 (289 U. S. 712) Mr. Chief Justice Hughes
announced a new order, based on the failure of New York
City to comply with the decree of December 7, 1931. The
defendant asked that the time for taking effect of the in
junction be extended from June 1, 1933 to April 1, 1934.
It was ordered that these applications be heard on Novem
ber 6,1933, that E. K. Cambell be appointed Special Master,
empowered to hear witnesses, issue subpoenas, take evi
dence offered by interested parties, and also such as he
may deem necessary to show :
71
(A ) What shall have been done by defendant city,
up to September 15, 1933, and the time reasonably re
quired to enable it to comply with the decree.
(B) The amounts spent by the plaintiff New Jersey
to prevent harm to its beaches, waters, etc., subsequent
to June 1, 1933, and the damages sustained by them as
a result of New York’s failure to comply with the de
cree.
The Special Master’s findings were subject to considera
tion, revision, or approval by the Court.
On December 9, 1935 (296 U.S. 259, 80 L. Ed. 214, 56
8. Ct. 188), Mr. Justice Butler announced a new decree
modifying in effect the decree of December 4, 1933. The
latter decree enjoined New York City from dumping refuse
off the New Jersey coast, stipulating a five thousand dollars
($5,000.00) a day penalty for failure to comply. On October
7,1935, New York City sought a modification of the decree,
and asked for a petition to have New Jersey show cause
why a ruling could not be made to the effect that ten miles
(10) off shore dumping is satisfactory as to non-floating
material, or, in the alternative, why the Court should not
modify its decree so as to permit the defendant to dump
non-floating sewage as aforesaid.
Defendant’s motion for leave to file was granted.
It should be noted that the original decree was handed
down in 1931 and continued modification took place for some
four (4) years in order to effectuate the original decree.
Recognition for additional time was given each time the
case reappeared before the Court.
•IEL The Supreme Court again recognized the need for a
calm period of gradual transition to effectuate its decree,
in the Gaseous Nuisance Cases in which it took some nine
(9) years to implement its decrees.
72
The first ease was that of Georgia v. Tennessee Copper
Co., 206 U.S. 230, 51 L. Ed. 1038, 27 S. Ct. 618 (1907).
In this case the State of Georgia sought to enjoin the de
fendant copper companies from discharging noxious gases
from their works in Tennessee over the plaintiff’s territory.
The State alleged that such discharges were destroying
entire forest, orchard, and crop lauds, and that irreparable
injuries were being done and threatened in five counties of
Georgia. A preliminary injunction was denied, but, as there
were grounds to fear that great and irreparable damage
might be done, an early day was fixed for the final hearing,
and the parties were given leave, if so minded, to try the
cases on affidavits. Mr. Justice Holmes held that if the
State of Georgia adhered to its determination, there was
no alternative to issuing an injunction, after allowing a
reasonable time for the defendants to complete the struc
tures then being built, and efforts the companies were mak
ing to stop the flow of fumes and gases into Georgia. The
plaintiff Georgia was permitted to submit a form of decree
on the coming in of the Court in the following October.
Eight (8) years later, on May 10, 1915, the Supreme
Court again heard the same case, in the State of Georgia
v. Tennessee Copper Co. and Ducktown Sulphur, Copper,
<& Iron Co., Ltd., 237 U.S. 474, 59 L. Ed. 1054, 35 S. Ct. 631
(1915).
This case is a continuation of the earlier one, supra
(1907), in regard to the nuisance of gaseous fumes harming
the property within the State of Georgia. In the earlier case,
hope was entertained that some practical method of sub
duing the noxious fumes could be devised and by consent,
the time for entering a final decree was enlarged. Both
companies installed purifying devices. The original de
fendant, Tennessee Copper and Georgia, entered into a
stipulation whereby the former undertook annually to
supply a fund to compensate those injured by fumes from
73
its works, to conduct its plant subject to inspection in speci
fied ways, and between April 10 and October 1, not to
“ operate more green ore furnaces than it finds necessary to
permit of operating its sulphuric acid plant at its normal
full capacity.” The State of Georgia agreed to refrain
from asking for an injunction prior to October, 1916, if
the stipulation was fully observed. Ducktown Company and
the State were unable to agree, and in February, 1914,
the latter moved for a decree according a perpetual in
junction. Consideration of the matter was postponed upon
representation that conditions had materially changed since
1907, and leave was granted to present additional testimony
“ to relate solely to the changed conditions,” if any, which
may have arisen since the case was then decided. A decree
was granted restraining the Ducktown Company from con
tinuing to operate its plant other than upon the terms and
conditions set out by the Court (Decree set forth in 237 U.S.
678, 59 L. Ed. 1173, 35 8 . Ct. 752 (1915)).
A new decree was issued April 3, 1916 in 240 TJ. 8. 650, 60
L. Ed. 846, 36 8. Ct. 465, (1916). This decree modified the
former decrees as to the escapement of fumes, as to records
to be kept in regard thereto, and also as to expense of in
spection and division of costs.
The three(3) cases, dealing with the problem of escaping
nuisances, cover a span of nine (9) years (from 1907 to
1916). It illustrates how long a period is required to adjust
to incorporeal changes and strongly suggests that human
changes obviously require greater periods, since human
emotions are not as easily controlled as are gaseous mate
rials from sulphur and copper plants. Recognition of the
need of calm planning in good faith to reconcile difficult
problems has often been illustrated by the Court in con
texts of economic and social changes as a result of its
decisions.
74
IV. In People of the State of New York v. State of New
Jersey and Passaic Valley Sewerage Commissioners, 256
U.S. 296, 65 L. Ed. 937, 41 S. Ct. 492 (1921), at page 313,
Mr. Justice Clarke, in refusing to grant injunction relief
against the operation of sewerage disposal by New Jersey
into New York Harbor, wisely stated:
“ We cannot withhold the suggestion, inspired by the
consideration of this case, that the grave problem of
sewage disposal presented by the large and growing
populations living on the shores of New York Bay is
one more likely to be wisely solved by cooperative study
and by conference and mutual concession on the part
of Representatives of the States so vitally interested
in it than by proceedings in any Court however con
stituted. ’ ’
This quotation strongly suggests the need for time to
work out these difficult intangible relations, in an atmos
phere of cooperation and reason, rather than a tremendous
disruption of social and economic conditions. V.
V. In the case of Martin Bldg. Co. v. Imperial Laundry
Co., 220 Ala. 90,124 So. 82, the Supreme Court of Alabama
recognized the need for time in the use of injunctive
relief. In a suit by the owner of an office building to en
join a laundry from emitting smoke over the complain
ant’s premises, the basis of the suit was the discomfort to
the building’s tenants, endangering of their health, and the
resulting loss of tenants. The question of the abatement of
the nuisance by improved technological laundry methods
had to be further considered before the Court would grant
or refuse injunctive relief, in view of suggested means of
reducing amount of smoke by use of stokers. This acted to
delay the force of the injunctive relief sought.
75
B. Administrative Discretion
Cases
The use of administrative discretion and its limits have
often been spelled out by the Court in the areas of adminis
trative agencies. The Court has consistently emphasized
that supervision and discretion should lie with the adminis
trative agencies in the conducting of their functons as
economic and political governing boards. Such emphasis is
closely related to the administrative discretion which should
exist in school boards, also.
I. In United States v. Paramount Pictures, 334 U. S. 131,
92 L. Ed. 1260, 68 S. Ct. 915, (1948), Mr. Justice Douglas
reviewed a decree in an injunction suit by the United States
under the Sherman Act to eliminate or qualify certain busi
ness practices in the motion picture industry. A provision
in the decree that films be licensed on a competitive bidding
basis was eliminated by the Supreme Court as not likely to
bring about the desired end as involving too much judicial
supervision to make it effective. This elimination was held
to require reconsideration by the district court of its pro
hibition of the expansion of theatre holdings by distributors
and provisions for divesting existing holdings. The pro
priety of including in the decree a provision for voluntary
arbitration of questions arising thereunder was indicated,
and denial of applications for leave to intervene by persons
challenging the eliminated provision for competitive bid
ding was upheld.
77
Mr. Justice Douglas was strongly opposed to the judiciary
administrating industry, and favored voluntary arbitration:
At page 163 lie stated:
“ It would involve the judiciary in the administration
of intricate and detailed rules governing priority, per
iod of clearance, length of run, competitive areas, rea
sonable return and the like. The system would be apt
t© require as close a supervision as a continuous re
ceivership, unless the defendants were to be entrusted
with vast discretion. The judiciary is unsuited to af
fairs of business management; and control through the
power of contempt is crude and clumsy and lacking in
the flexibility necessary to make continuous and de
tailed supervision effective.”
The implications of Mr. Justice Douglas’s opposition to
judicial administration of intricate and detailed rules in the
economic field could readily apply to the social relationship
and problems created by the recent holding in the Brown
case.
II. Further evidence of the broad discretion that was
permitted by the Supreme Court in administrative agencies
is evidenced in the case of Alabama Public Service Commis
sion v. Southern Railway Company, 341 U. S. 341, 95 L. Ed.
1002, 71 S. Ct. 762, (1951). A railroad, prohibited by state
law from discontinuing trains without permission of the
state public service commission was denied such permission
on the ground that though the trains were being operated
at a loss there was a public need for the service. Alleging
that irreparable loss would result either from continued
operation of the trains or from incurring the penalty im
posed by state law for discontinuance without the commis
sion’s permission, the railroad sought and obtained an in
junction in a federal district court against the enforcement
of the statute.
The U. S. Supreme Court, through Chief Justice Vinson,
78
reversed the district court, and held that the federal court’s
exercise of such jurisdiction should, on considerations of
comity, be withheld on the ground that the state law pro
vided for review of the commission’s order in the state
courts and for its stay pending such review.
Some persuasive language in support of state administra
tive discretion appears at pages 347-348:
“ The Alabama Commission, after a hearing held in the
area served, found a public need for the service. The
court below, hearing evidence de novo, found that no
public necessity exists in view of the increased use and
availability of motor transportation. We do not at
tempt to resolve these inconsistent findings of fact.
We take note, however, of the fact that a federal court
has been asked to intervene in resolving the essentially
local problem of balancing the loss to the railroad from
continued operation of trains . . . with public need for
that service. . . directly affected___” (Italics sup
plied).
More support to the finality of the discretion of the com
mission is found on page 348:
“ . . . and whatever the scope of review of commission
findings when an alleged denial of constitutional rights
is in issue, it is now settled that a utility has no right
to relitigate factual questions on the ground that con
stitutional rights are involved. New York v. United
States, 331 U.S. 284, 334-336 (1947)___ ” (Italics sup
plied)
More directly in point, at pages 349-350 is found the
following:
“ . . . as adequate state court review of an administra
tive order based upon predominantly local factors is
available to appellee intervention of a federal court is
not necessary for the protection of federal rights. Equi
table relief may be granted, only when the District
Court, in its sound discretion exercised with the ‘ scru
pulous regard for the rightful independence of state
79
governments which, should at all times actuate the fed
eral courts, ’ is convinced that the asserted federal right
cannot be preserved except by granting the ‘ extraordi
nary relief o f an injunction in the federal courts. ’ Con
sidering that ‘ few public interests have a higher claim
upon the discretion o f a federal chancellor than the
avoidance o f needless friction w ith state policies,’ the
usual rule o f com ity must govern the exercise o f equi
table jurisdiction by the D istrict Court in this case___ ”
(Italics supplied)
A nd again at page 351, “ It is in the public interest
that federal courts o f equity should exercise their
discretionary power to grant or w ithhold relief so as to
avoid needless obstruction o f the domestic policy o f
the states___ ”
III. Further evidence o f the broad discretion permitted
by the Supreme Court to state adm inistrative agencies is
found in the case o f Burford v. Sun Oil Co., 319 U. S. 315,
87 L. Ed. 1424, 63 S. Ct. 1098 (1943). In this case the Sun Oil
Co. attacked the validity o f an order o f the Texas Railroad
Commission granting the petitioner B u rford a perm it to
drill oil wells on a small plot o f land in the E ast Texas oil
fields. The U. S. D istrict Court fo r the western district of
Texas dism issed the suit by the C om pany; the Circuit Court
o f A ppeals reversed the D istrict Court. The Supreme Court
through Mr. Justice Black reversed the Circuit Court of
Appeals, and affirm ed the D istrict Court.
The Supreme Court held that a federal equity court may
properly decline to exercise its jurisdiction invoked because
o f diversity o f citizenship o f the parties and alleged in
fringem ent o f constitutional r ig h ts ; to determine the valid
ity o f a state commission order, made under the authority
o f a conservation statute, granting a perm it to drill oil wells
on certain property, adjacent to lands owned by the com
plainant, where the state has provided a uniform method
fo r the form ation o f policy and determ ination o f cases by
80
the commission and the state courts; and where the judicial
review of the commission’s decisions in the state courts is
expeditious and adequate; and where intervention by the
lower federal courts is likely to cause delay and conflicting
interpretation of the state law, dangerous to the success of
state domestic policies.
The Court, at page 320, explicitly states:
‘ ‘ The primary task of attempting adjustment of these
diverse interests is delegated to the Railroad Commis
sion, which Texas has vested with ‘ broad discretion’
in administering the law.”
The Court points out that the Texas courts have the
power of thorough judicial review of the decisions of the
Railroad Commisson; and that the Texas courts are work
ing partners with the Commission in the business of creating
a regulatory system for the oil industry. The Commission
is charged with principal responsibility for fact finding and
for policy making and the courts expressly disclaim the
administrative responsibility. On the other hand, orders
of the Commission are tested for “ reasonableness” by trial
de novo before the state court, and the Court may on oc
casion make a careful analysis of all the facts of the case
in reversing a Commission order. The state court may even
formulate new standards for the Commission’s adminis
trative practice, and suggest that the Commission adopt
them.
The Supreme Court recognized that the existence of prob
lems throughout the oil regulatory field creates a possibility
of serious delay which can injure the conservation program;
and that it may be necessary to stay federal action pending
authoritative determination of difficult state questions.
It recognized that questions of state regulation of the oil
industry so clearly involve basic problems of Texas policy
that equitable discretion should be exercised to give the
Texas courts the first opportunity to consider them.
81
IV Concrete evidence of the Supreme Court’s adher
ence to complete administrative discretion is found in the
case of Far Eastern Conference, United States Lines Co.,
States Marine Corporation, et al. v. United States and Fed
eral Maritime Board, 342, U. S. 570, 96 L. Ed. 576, 72 S. Ct.
492 (1952). The suit was brought by the government to en
join the dual rate system established by an association of
steamship companies known as the Far East Conference.
The companies never submitted the rates to the Federal
Maritime Board for approval, as provided for in §15 of the
Shipping Act (46 USC §814). The defense, that the issues
involved were of such a technical nature calling for the
application of administrative exercise as to make it im
proper to bypass the Board, was upheld by the Court
through Justice Frankfurter.
It was held that the administrative agencies should not
be bypassed by the Courts in cases raising issues of fact
not within the conventional experiences of judges or in
cases requiring the exercise of administrative discretion,
even though the facts, after they have been appraised by
specialized competence, serve as a premise for legal conse
quences to be judicially defined. V.
V. “ But the courtroom is not the arena for debating
issues of educational policy. It is not our province to choose
among competing considerations in the subtle process of
securing effective loyalty to the traditional ideals of de
mocracy, while respecting at the same time individual
idiosyncrasies among a people so diversified in social
origins and religious alliances. So to hold would in effect
make us the school hoard for the country.” Minersville
School District v. Gohitis, 310 U. S. 586, 60 S. Ct. 1010, 84
L. Ed. 1375 (1940), at 310 U. S. 598 (Italics supplied).
82
Parenthetically, the Court, in this case recognizes its
limitations in the abstract sciences, with this language at
page 597:
“ The precise issue, then, fo r us to decide is whether
the legislatures o f the various states and the authori
ties in a thousand counties and school districts o f this
country are barred from determining the appropriate
ness o f various means to evoke that unifying sentiment
without which there can ultimately be no liberties, civil
or religious. To stigmatize legislative judgm ent in p ro
viding fo r this universal gesture o f respect fo r the sym
bol o f our national life in the setting o f the common
school as a lawless inroad on that freedom o f conscience
which the Constitution protects, would amount to no
less than the pronouncement o f pedagogical and psy
chological dogm a in a field where courts possess no
marked and certainly no controlling com petence.”
Constitutional guarantees o f personal liberty are not
always absolutes. Government has the right to maintain
public safety and good order.
Keeping the control o f public education close to the local
people is perhaps the strangest tradition in Am erican edu
cation. One o f the predominant characteristics o f Am erican
education is the variation in local policies and procedures
in terms o f unique local conditions. This is in sharp con
trast to the highly centralized national system o f education
of other countries. VI.
VI. “ Civil liberties, as guaranteed by the Constitution,
imply the existence o f an organized society m aintaining
public order without which liberty itself would be lost in
the excesses o f unrestrained abuses.” Cox v. New Hamp
shire, 312 U. S. 569, 61 8. Ct. 762, 85 L. Ed. 1049
(1941) at 312 U.S. 574.
83
VII. Speaking of the 14th Amendment, the TJ. S. Su
preme Court in Barbier v. Comiolly, 113 U. S. 27, 5 S. Ct.
357, 28 L. Ed. 923 (1885), said at page 31:
“ But neither the amendment—broad and compre
hensive as it is—nor any other amendment, was de
signed to interfere with the power of the State, some
times termed its police power, to prescribe regulations
to promote the health, peace, morals, education and
good order of the people . . (Italics supplied)
VIII. In Euclid v. Ambler Realty Co., 272 U. S. 365, 47 8.
Ct. 114, 71 L. Ed. 303 (1926), it said at page 387:
“ Regulations, the wisdom, necessity, and validity of
which, as applied to existing conditions, are so apparent
that they are now uniformly sustained, a century ago,
or even a half century ago, probably would have been
rejected as arbitrary or oppressive . . . while the mean
ing of constitutional guaranties never varies, the scope
of their application must expand or contract to meet
new and different conditions which are constantly
coming within the field of their operation . . . Laws and
regulations must find their justification in some aspect
of the police power, asserted for the public welfare.”
84
C. Remarks
The aforesaid summary shows the wise recognition by the
Supreme Court in the past of the need for time in effecting
certain economic changes in our society in order to allow a
period of healthy adjustment in sensitive areas. The cases
also show a recognition of the need for adequate local dis
cretion in the same areas. This line of reasoning should be
applied to the even more sensitive area of desegregation
which presents a vast problem of human engineering to re
solve the social changes sought.
Samuel Gompers, one of America’s greatest labor leaders
recognized this fact some years ago when he stated:
“ One fact stands out in bold relief in history of
men’s attempts for betterment. That is that when com
pulsion is used, only resentment is aroused, and in the
end nothing is gained. Only through moral suasion and
appeal to men’s reason can a movement succeed.”
85
Part Four
Considerations Involved
in Formulating Plans
For Desegregation
87
A . Changes
in the Law
Dr. Rupert B. Vance, Professor of Sociology, University
of North Carolina, past president of the American Socio
logical Society, writing in the Journal of Public Law,
Emory University Law School, Vol. 3, Spring 1954, Number
1, page 42, says:
“ National prohibition offers an example of a change
in law which did not carry through to change in the
collective behavior and attitudes of society. In spite of
our respect for the Constitution, resistance increased
and law enforcement was insufficient to bring about
social change. This resistance assumed the form of
violations, as well as evasions, of the law. Under this
situation it can be said that the 18th Amendment was
repealed in order to preserve respect for the law. This
occurred in spite of the fact that the initial change
had the support of public opinion as represented in
the (1) affirmative vote of legislatures of the states,
and was implemented both by (2) federal legislation,
as in the Volstead Act, and (3) supporting legislation
in many states. For students of social change, the con
trast with a decision of the Supreme Court is impres
sive.
‘ ‘ Thus, while students of law realize that social change
can be and has been implemented by legal enactment
and judicial decision, it is also realized that resistance
to social change is of many types. Here we can say
that jurisprudence, as a social science, has shared in
the responsibility of determining the extent to which
any desired social change is enforceable by law. Laws
may be violated, and they may be evaded. Evasion
89
carries the implication of driving a course through
gaps in the law, if not actually breaking it. Important
to the courts, to public order, and to the profession is
the whole field of conflict of laws. Oftentimes, the
change ordered by legal enactment and judicial decision
is so limited in scope that no actual evasion is drawn
upon to block social change. Some times modes of ad
justment may exist within the choice of individuals
and groups—alternatives sanctioned in legal codes. It
is in this borderline between public and private spheres
of life that the doctrine of social change is of most im
portance to students of jurisprudence. It must be re
membered that issues will be decided, not on the basis
of an assumed code of ethics, but on the basis of what
is enforceable unthin the system of legality.” (Italics
supplied)
90
B. Plans for Integration
The problem involves, among other things, the collective
conscience or mores of our white citizens regarding segre
gation. That conscience simply stated, although of varying
degrees of intensity, is that our people are not ready for
desegregation. This was demonstrated conclusively by the
survey which was made in Florida. This conscience is in
grained because it was nurtured and cherished throughout
many generations as a way of life. It is deep-seated and its
roots rest in fears of inter-marriage of the races, racial dif
ferences, superstitions, history, traditions and customs.
This community conscience until the Brown case had
long years of legal sanction in the field of public education.
Elimination of this legal sanction by no means eradicates
the underlying collective conscience of the people in this
field. This attribute of the problem simply cannot be suc
cessfully solved overnight.
This the Court undoubtedly appreciated by not making
its desegregation decision immediately effective. Its ques
tions and its delay of implementation indicate that it is
conscious of what may be termed the equities of transition.
The Court, we believe, is imbued with the need for gravity
and for prudent concern in dealing with this collective con
science.
We think it realizes the need for social engineering, time,
patience and community understanding. It senses the need
for conditioning and education if implementation is ever
to be a real success.
Free men are not automatons capable of being molded
91
and transformed forthwith by a new and revolutionary
judicial concept which does not square with their collective
conscience.
The enormity of the problem of compliance gives great
pause. We do not deal with implementation of a decree
against a single individual or even a minority. A successful
response to the judgment requires reconciliation to it of a
great majority of our people. The Court on its part needs for
the enforcement of its decree the amelioration of time which
is said to be a great Healer. It needs the rallying of those
who will stand by the law of the land because it is such
whether they agree with it or not and the patience of wise
administration which eschews haste, precipitate action and
premature procedures.
The Court stands not in need of the whip and the scourge
of compulsion to drive our people to obedience, but rather
the rational solution of time in which the loyalty, patience
and understanding of the law-abiding will come forward
and lead the way to peaceful, reasonable and successful
compliance.
Not only to be considered is the need of reconciling this
collective conscience to desegregation but others of im
portance to be considered include the safety of school chil
dren, the peace of the community, the mutitudinous admin
istrative problems affected, the impact upon teachers’ jobs,
particularly Negro teachers’, the transportation of school
children, the revisions of laws and regulations, the redis
tricting of attendance areas, the reallocation of physical
school plant facilities and others involved in the transition
from a segregated school system to a non-segregated system.
All require time, wise administration and patience for their
solution.
Gradual effective adjustment to integration presupposes
that there will be a plan. But because there is a wide variety
of local conditions, no specific plan can be outlined which
92
would be acceptable under all conditions and in all com
munities.
We think integration must proceed in Florida on a county
by county basis because of the fundamental differences in
various areas of the state which we have attempted to
demonstrate in this brief.
A great many plans for integration have been developed
in Florida and other states and all of them have their ad
herents. A plan of gradual integration starting with the
first grade and working on up through high school over
a 12 year period is believed by some advocates to be the
answer for their community but it is rejected in other places.
Another plan for beginning the integration process at
the college level and gradually working down to the first
grade can be supported by valid arguments, but it too is
rejected by many educational leaders as being unworkable
in some communities.
Other plans which have been advanced include a gradual
reorganization of school attendance areas; designated
schools whose students will be composed of volunteers from
both races during the transition period; a simultaneous in
tegration of all school grades over a period of time based
on the scholastic level of the students as determined by ex
aminations. These and many other plans are being consid
ered by school authorities whose job it will be in the final
analysis to devise a plan which will be accepted and will
work in their particular school districts.
The one factor which all of these plans share in common
is the need for sufficient time to carry them out and the
one point on which agreement can be reached by school
authorities who are willing to undertake a program of in
tegration is that the plan adopted for their specific area
must be unique in that it will take into consideration the
exact problems of that area and no other.
93
I f this planning and action is permitted by the Court,
we believe that local school authorities should take into
consideration two primary factors: first, the material
aspects of integration which include the use of present
school buildings, the construction of new buildings, trans
portation, teachers’ jobs and assignments, school popula
tions within attendance areas and the administration im
practicabilities and inequities that would arise in these
dislocations in any effort to effect a too hasty non-segrega
tion; second, the intangible considerations including com
munity thinking, customs, mores, overt acts that might
result from the impact of premature integration, the schol
astic standards of the schools and the feelings of children.
We realize that objection has been made to gradualism
in seeking methods of integrating white and Negro schools,
that delay might tend to create feelings of hostility and
encourage organized opposition. The advocates of this
theory apparently feel that the shock treatment is to be
preferred and that if a difficult job has to be done, the
quicker it is done, the better.
In this belief we are positive they are mistaken. Strong
opposition already exists in the South to desegregation.
It will be intensified in direct proportion to the amount
of hasty precipitation and coercion that is applied.
Already there is springing up in our state opposition
organizations, some of which through their literature en
courage violence. Burning of crosses and circulation of
hate literature are becoming more and more prevalent.
But minimizing these manifestations of defiance are thou
sands of law-abiding citizens of both races, many influential
newspapers and loyal organizations who are trying to meet
the situation calmly and patiently. But their attitudes have
always been buttressed on the assumption of gradualism
and local autonomy. I f that assumption is cut from under
them by a decree of immediate desegregation or even a
decree of a period of short delay which does not permit a
94
large degree of local determination, we frankly doubt
whether we can save our public school system. This ob
jection to gradualism may be valid in Northern states where
segregation has been practiced but where the people as a
whole do not share the intense feelings on racial differences
which have become an ingrained part of the culture of the
South.
There is no reason to think that sufficient delay in integra
tion of the schools of Florida to allow for a period of gradual
adjustment would create new problems or intensify those
already existing.
The problems are already here and must be recognized
realistically by anyone conscientiously seeking a solution.
There is every logical reason to believe that any attempt
to use the shoek treatment of immediate compulsory inte
gration of schools in Florida would only result in translat
ing the present passive intellectual differences in thought
and emotional feelings to an active, positive and violent
physical resistance.
When all is said and done, it may be that about the best
advice on the subject was contained in a speech by Gover
nor David S. Walker of Florida in 1867 to a meeting of
Freedmen in Tallahassee1.
Governor Walker said:
‘ ‘ The great question now to be solved, is whether two
different races can live in peace together under the
same government with equal political rights. In my
reading of history, I do not remember any instance in
which this has ever been done. But God has placed the
work upon us and with His blessing we must try our
best to accomplish it. In the first place, therefore, I
say let each one of us of all colors resolve to cultivate
kindly relations with one another and never allow our-
1. Semi-weekly Floridan, Tallahassee, Florida, April 23, 1867,
page 2.
95
selves to be arrayed in hostility to each other—let us
always speak kindly to and of one another. I have never
known a man in my life who had the true principles of
a Christian gentleman in him, who would wantonly
wound the feelings of any human being, however
humble.”
96
Part Five
CONCLUSION
There are two ways in which the Brown decision may be
viewed by history. First, it may be considered as a seismic
shock which struck without warning and engulfed a large
part of the nation in a tidal wave of hate and inflamed
emotions and carried away a public school system which
took half a century and billions of dollars to build, or
Second, it may be looked upon as a high goal which this
Court has fixed for men of good will to strive to attain and
which they may attain in due course if rational considera
tion is given to human frailty and faith is maintained in
the slow but sure upward movement of democracy.
Many think that our democracy is now face to face with
the toughest job in practical government it has ever had
to tackle without going to war. Some way must be found
to protect the constitutional rights of a minority without
ignoring the will of the majority. We think the only an
swer is time and the patient efforts of those who value de
mocracy more than their personal longings and private
prejudices. We hope that this court will accept this answer.
R ichard W. E rvin
Attorney General of
the State of Florida
Ralph E. Odum
Assistant Attorney General,
State of Florida
97
(Appendix A)
Results of a Survey of Florida Leader
ship Opinion on the Effects of the
U. S. Supreme Court Decision of May
17, 1954 Relating to Segregation in
Florida Schools
99
Introduction
As a result of the decision of the United States Supreme
Court of May 17, 1954, declaring unconstitutional racial
segregation in public education, Florida and other southern
states are confronted with problems of tremendous gravity
and complexity.
While it enunciated a new principle of law, the Court
did not prescribe the manner in which this principle
should be translated into action in the states and com
munities affected. Instead, it restored the cases to the
docket for further argument as to the method of adjust
ment which should be called for in subsequent decrees,
inviting the Attorneys General of states requiring or
permitting segregation in public education to appear as
amici curiae.
In anticipation of the preparation of a brief for sub
mission in response to this invitation, the Attorney General
of the State of Florida requested the assistance of social
scientists and other educators in compiling facts concerning
the problems which the State of Florida would encounter
in complying with the decision of the Court.
This is their report.
RICHARD W. ERVIN
Attorney General
101
ATTORNEY GENERAL’S
RESEARCH ADVISORY COMMITTEE
FOR THE STUDY OF PROBLEMS OF
DESEGREGATION IN FLORIDA SCHOOLS
The committee was chosen by the Attorney General to
assist him in conducting a survey to determine leadership
opinion among Florida citizens regarding problems created
by the U. S. Supreme Court’s decision of May 17, 1954,
abolishing segregation in the public schools.
The individuals asked to serve on this committee were
chosen on the basis of their professional standing in the
field of education; their specialized knowledge and train
ing which would be of value in conducting such a survey;
and their reputation for civic-mindedness and impartiality.
The committee selected Dr. Lewis Killian, Associate Pro
fessor of Sociology at Florida State University, to act as
director of research and coordinator for the project. While
certain parts of this report were written by Dr. Killian
and others, the entire report and all its findings have been
reviewed and approved by the entire membership of the
committee.
Mr. Richard W. Ervin Dr. Sarah Lou Hammond
Attorney General School of Education
(Ex Officio) Florida State University
Mr. Thomas D. Bailey Mr. Robert D. Gates
State Superintendent of Department of Education-
Public Instruction
(Ex Officio)
102
Mr. Ralph E. Odum
Assistant Attorney General
Dr. Ralph Eyman, Dean
School of Education
Florida State University
Dr. Gilbert Porter
Executive Secretary
Florida State Teachers
Association
Dr. J. B. White, Dean
School of Education
University of Florida
Dr. Manning J. Dauer
Department of Political
Science
University of Florida
Dr. Don Larson
Department of Political
Science
University of Miami
Dr. George Gore, President
Florida Agricultural and
Mechanical University
Mr. Angus Laird, Director
State Merit System
Dr. Robert E. Lee
Department of Education
Mr. Ed Henderson
Executive Secretary
Florida Education
Association
Dr. Richard Moore,
President
Bethune-Cookman College
Dr. R. L. Johns
School of Education
University of Florida
Dr. Mode Stone
School of Education
Florida State University
Mr. D. E. Williams
Department of Education
Dr. T. J. Wood
Department of Political
Science
University of Miami
Dr. Lewis M. Killian
Department of Sociology
Florida State University
( Coordinator of Research)
103
The Report
and the
Conclusions*
Just as the effects of segregation, held by the Court to
be discriminatory, are essentially psychological, the prob
lems of desegregation are also social and psychological
as much as they are legal.
An eminent student of race relations in the South, Guy
B. Johnson, has said, “ Anyone who thinks that the transi
tion from segregation to racial co-education ccm be made
without problems, tensions, and even personal tragedies is
a fool. Anyone who thinks that the transition means the end
of civilization is also a fool.” * 1
The purpose of this study was to delineate as far as is
possible the problems, the tensions and, perhaps, the trage
dies, which might he expected to arise in the course of this
transition in Florida communities. This was a fact finding,
research study. There was no intent to predict whether
this transition will take place nor to make value-judgments
as to whether it should or should not occur.
Prediction of the problems which might arise if desegre
gation of public schools were undertaken in the near future
are based upon four types of data. These are:
* Prepared by Dr. Lewis Killian, Department of Sociology, Florida
State University.
1. “ The Impending Crisis of the South,” New South, VIII,
No. 5 (May, 1953), (Atlanta: Southern Regional Council), 5.
105
1. The expressed attitudes of various groups of leaders,
both white and Negro, toward the Court’s decision and
toward the possible implementation of it in Florida.
2. An historical analysis of the way in which Negroes have
availed themselves of a privilege from which state restric
tions were removed by a similar federal court decision,
the privilege of voting in primary elections.
3. An analysis of relevant information pertaining to school
administration, instructional services, and the quality of
education as they might be affected by desegregation.
4. The experience of other states and communities in which
programs of desegregation have been undertaken.
In the study of human behavior it is impossible to ask
all of the questions which are relevant to that behavior.
The selection of questions always implies certain assump
tions concerning the situation being studied, and these
assumptions should be made explicit.
The basic assumptions of this study are:
1. That the Court will desire a minimum of intergroup
conflict and public disorder in any program of desegre
gation which might be undertaken. On this assumption,
information indicative of the likelihood of conflict and
widespread disorder in various situations becomes highly
important.
2. That expressed attitudes are to some extent and in cer
tain types of situations indicative of later behavior. This
is particularly important when it is the attitudes of occu
pants of key positions in the power structure of a group
which are concerned. 3
3. That the attitudes of people in leadership, power, and
prestige roles are of more importance as determinants of
106
social change than are the attitudes of larger numbers of
people not occupying such roles.
4. That the behavior of people in one situation is to some
extent indicative of the behavior of the same or different
people in similar but not identical situations.
The conclusions of this study are based on the findings
of several separate, but related, constituent studies which,
together, constitute the general research project. Each study
is presented in detail in a separate subsection of the report.
The general conclusions, drawn from all of these studies,
are found in the chapter preceding the detailed reports
of the separate studies.
The sub-studies, in order of presentation, are:
1. An attitude-opinion poll, based on mailed questionnaires,
of 9 white and 2 Negro groups of leaders throughout the
state. (Page 113)
2. An attitude-opinion poll, based on personal inter
views, of white leaders in 10 selected counties and Negro
leaders in 8 of these counties. (Page 153)
3. An historical analysis of trends in Negro voter regis
tration in Florida, 1940-1954. (Page 177)
4. An analysis of relevant information pertaining to school
administration and instructional services as they might be
affected by desegregation. (Page 185)
5. An intensive study, utilizing various methods, of lead
ership attitudes and opinions in a metropolitan area and
a rural area in southeastern Florida. (Page 201)
GENERAL CONCLUSIONS
1. On the basis of data from all relevant sources included
in this study, it is evident that in Florida white leadership
opinion with reference to the Supreme Court’s decision is
far from being homogeneous. Approximately three-fourths
107
of the white leaders polled disagree, in principle, with the
decision. There are approximately 30 per cent who violently
disagree with the decision to the extent that they would re
fuse to cooperate with any move to end segregation or would
actively oppose it. While the majority of white persons
answering opposed the decision, it is also true that a large
majority indicated they were willing to do what the courts
and school officials decided.
2. A large majority of the Negro leaders acclaim the de
cision as being right.
3. Only a small minority of leaders of both races advocate
immediate, complete desegregation. White leaders, if they
accept the idea that segregation should be ended eventu
ally, tend to advocate a very gradual, indefinite transition
period, with a preparatory period of education. Negroes
tend to advocate a gradual transition, but one beginning
soon and lasting over a much shorter period of time.
4. There are definite variations between regions, coun
ties, communities and sections of communities as to whether
desegregation can be accomplished, even gradually, with
out conflict and public disorder. The analysis of trends in
Negro registration and voting in primary elections, shows
similar variations in the extent to which Negroes have
availed themselves of the right to register and vote. At
least some of these variations in voting behavior must be
accounted for by white resistance to Negro political par
ticipation. This indicates that there are regional varia
tions not only in racial attitudes but in overt action.
Regional, county and community variations in responses
to questionnaires and interviews are sufficiently marked to
suggest that in some communities desegregation could be
undertaken now if local leaders so decided, but that in others
widespread social disorder would result from immediate
108
steps to end segregation. There would be problems, of
course, in any area of the state, but these would be vastly
greater in some areas than in others.
5. While a minority of both white and Negro leaders ex
pect serious violence to occur if desegregation is attempted,
there is a widespread lack of confidence in the ability of
peace officers to maintain law and order if serious violence
does start. This is especially true of the peace officers them
selves, except in Dade County. This has important impli
cations. While it is true that expressed attitudes are not
necessarily predictive of actual behavior, there seems little
doubt that there is a minority of whites who would actively
and violently resist desegregation, especially immediate
desegregation. It has been concluded from the analysis of
experiences with desegregation in other areas, “ A small
minority may precipitate overt resistance or violent oppo
sition to desegregation in spite of general acceptance or
accommodation by the majority.” 2
6. Opposition of peace officers to desegregation, lack of
confidence in their ability to maintain law and order in
the face of violent resistance, and the existence of a posi
tive relationship between these two opinions indicates that
less than firm, positive action to prevent public disorder
might be expected from many of the police, especially in
some communities. Elected officials, county and school, also
show a high degree of opposition. Yet it has been pointed
out, again on the basis of experience in other states, that
the accomplishment of efficient desegregation with a mini
mum of social disturbance depends upon.
A. A clear and unequivocal statement of policy by leaders
with prestige and other authorities;
2. Kenneth B. Clark, “ Findings,” Journal o f Social Issues, IX ,
No. 4 (1953), 50.
109
B. Firm enforcement of the changed policy by authorities
and persistence in the execution of this policy in the
face of initial resistance;
C. A willingness to deal with violations, attempted viola
tions, and incitement to violations by a resort to the
law and strong enforcement action;
D. A refusal of the authorities to resort to, engage in or
tolerate subterfuges, gerrymandering or other devices
for evading the principles and the fact of desegregation;
E. An appeal to the individuals concerned in terms of their
religious principles of brotherhood and their acceptance
of the American traditions of fair play and equal justice.
It may be concluded that the absence of a firm, enthusi
astic public policy of making desegregation effective would
create the type of situation in which attitudes would be
most likely to be translated into action.4
7. In view of white feelings that immediate desegregation
would not work and that to require it would constitute a
negation of local autonomy, it may be postulated that the
chances of developing firm official and, perhaps, public sup
port for any program of desegregation would be increased
by a decree which would create the feeling that the Court
recognizes local problems and will allow a gradual tran
sition with some degree of local determination.
8. There is a strong likelihood that many white children
would be withdrawn from public schools by their parents
and sent to private schools. It seems logical, however, that
this practice would be confined primarily to families in the
higher income brackets. As a result, a form of socio-eco
nomic class segregation might be substituted for racial
segregation in education.
4. Experience shows that when the steps listed above have been
taken, predictions of serious social disturbance have not been
borne out.
110
9. It is evident that a vast area of misunderstanding as to
each other’s feelings about segregation exists between the
races. White leaders believe Negroes to be much more satis
fied with segregation than Negroes are and Negro leaders
believe that whites are much more willing to accept desegre
gation gracefully than whites proved to be. Hence a logical
first step towards implementing the principle set forth by
the Court, and one suggested by both whites and Negroes,
would seem to be the taking of positive, cooperative steps
to bridge this gap and establish better understanding be
tween the two groups.
10. Although relatively few Negro leaders and teachers
show concern about the problem, white answers indicate
that Negro teachers would encounter great difficulty in ob
taining employment in mixed schools. To the extent that
desegregation might proceed without parallel changes in
attitudes towards the employment of Negro teachers in
mixed schools, economic and professional hardships would
be worked on the many Negro teachers of Florida.
11. Since 1940, and particularly since 1947, the State of
Florida has made rapid and steady progress toward the
elimination of disparities between white and Negro edu
cational facilities as measured by such tangible factors as
teacher salaries, current expenditure per pupil, teacher
qualifications, and capital outlay expenditure per pupil.
12. In spite of the current ambiguity as to the future of
dual, “ separate but equal” school facilities the State is
proceeding with an extensive program of construction of
new school facilities for both white and Negro pupils, with
a recommended capital outlay of $370 per Negro pupil and
$210 per white pupil. Both this and the previous finding
indicate that, while these steps have been taken within the
framework of a dual educational system, there is a sincere
111
desire and willingness on the part of the elected officials
and the people of Florida to furnish equal education for all
children.
13. Available achievement test scores of white and Negro
high school seniors in Florida indicate that, at least in the
upper grades, many Negro pupils placed in classrooms with
white pupils would find themselves set apart not only by
color but by the quality of their work. It is not implied
that these differences in scores have an innate racial basis,
but it seems likely that they stem from differences in eco
nomic and cultural background extending far beyond the
walls of the segregated school, into areas of activity not
covered by this decision.
14. Interracial meetings and cooperative activities already
engaged in by teachers and school administrators in many
counties demonstrate steps that can be, and are being taken
voluntarily and through local choice to contribute to the
development of greater harmony and understanding be
tween whites and Negroes in Florida communities.
112
Leadership
Opinion
By
Questionnaire
. . . and Conclusions*
Although all of the people of Florida would be affected,
directly or indirectly, by any move to end racial segre
gation in the public schools, some groups have a more
direct and intense involvement in the situation than do
others.
People connected with county school systems such as
school board members, school trustees, superintendents,
principals, teachers and supervisors would play key roles
in putting any plan for desegregation into effect. Police
officers, judges and county attorneys would be required
to deal with cases of conflict and disorder which might
arise. Parents are deeply involved not only as parents
but as voters and taxpayers. As moulders of public opinion
newspaper editors, radio station managers and ministers
have an important relationship to any developing social
change. Legislators and county commissioners would be
faced with the task of formulating new state and county
policies relating to this significant legal and social change.
* Prepared by Dr. Lewis Killian, Department of Sociology, Florida
State University.
113
In an attempt to get at the attitudes and opinions of
these important segments of the population, questionnaires
were mailed to the following groups:
1. All members of the Florida Peace Officers Association.
2. School principals, white and Negro, and school super
visors.
3. Negro PTA presidents, white PTA presidents, council
chairmen and board members.
4. School board members and school trustees.
5. County judges, circuit judges, state attorneys, county
solicitors and county commissioners.
6. Newspaper editors.
7. Radio station managers.
8. Members of the state legislature.
9. Ministers (a 10 per cent sample of certain denomina
tions).
Practical considerations precluded polling certain other
groups. The large number of teachers, white and colored,
in the state and the fact that so many would be away
from home at the time of the survey made a poll of their
opinions impractical. It was practical, however, and per
haps more important, to question principals and super
visors, as school people who work intimately with the
teachers in positions of leadership and authority. Simi
larly, the parent group polled was limited to PTA officers
because of the tremendous number of parents involved
and the non-availability of any list from which a sample
could be drawn.
The ministers presented a special problem. The size of
the population of ministers, which could only be estimated,
was obviously large. At the same time it was extremely
difficult to obtain comprehensive mailing lists for even part
of the multitude of denominations to which these ministers
114
might belong. Mailing lists were obtained for the follow
ing denominations: Baptist, Methodist, Episcopal, Roman
Catholic, Presbyterian, and Assembly of God. Question
naires were mailed to a 10 per cent sample of the clergy
men on each of these lists. Forms were also sent to a
sample of Negro Methodist and Baptist ministers, but the
returns were too small for use. In many cases they were
returned marked “ Unclaimed” or “ Moved, Left No
Address. ’ ’
The Questionnaires.
Nine different questionnaires were used in this survey.
Questions designed to elicit the following information were
included on all of them:
1. The position held by the subject and the section of the
state in which he lived and worked.
2. The subject’s personal feelings about the rightness of
the Court’s decision and action which should be taken as
a result of it.
3. The subject’s estimate of the likelihood of resistance
to desegregation in his community, the forms this resist
ance might take, and the ability of law enforcement officers
to maintain law and order in the event of serious violence.
The questionnaire sent to the peace officers sought also
an estimate of the likelihood that peace officers would
enforce school attendance laws for mixed schools. All
other questionnaires included questions concerning the
following additional items:
4. The subject’s estimate of the feelings about the de
cision and its implementation of other groups in the state
and in his community.
5. The subject’s opinion as to the method which would
be most effective in ending public school segregation. 6
6. Opinions as to the grades in which it would be easiest
115
to start admitting colored and white children to the same
schools.
Finally, principals and supervisors, school officials, leg
islators and PTA officers were asked whether certain
things which might constitute either aids or obstacles to
desegregation might happen in the event schools are de
segregated in the next few years.
Questionnaire Returns and Method of Analysis.
A total of 7,749 questionnaires were mailed. Time did
not permit a follow-up wave, but an effort was made to
increase returns by prefacing each form with a personal
appeal from the Attorney General and by enclosing a
stamped, self-addressed envelope.
Useable questionnaires returned number 3,972, 51.26 per
cent of the number mailed. The number and percentage
of returns for each group are shown in Table 1. The
lowest percentage of returns is seen to be that for the
Negro PTA presidents, 21.5 per cent. The rate of return
for all groups may be regarded as satisfactory since it
has been found that in mail polls usually less than 20
percent of the questionnaires are returned.3
Practical considerations, of which there are many in
what is essentially “ action research,” precluded the use
of standard techniques for control of the sample by as
certaining the characteristics of non-respondents. Hence
extreme caution must be exercised in generalizing from
these data to any population.
It is possible to speculate as to some of the reasons
for non-returns. It is known that some forms did not
reach the subject for one reason or another. Unfortunately
3. Katz, Daniel, and Hadley Cantril, “ Public Opinion Polls,”
Sociom etry, I (1937), 155-179.
116
237 questionnaires were returned too late for tabulation.
In the case of refusals other possible reasons must be
considered. In some groups, a relatively low degree of
education may have characterized persons who did not
respond. It is known that in some cases public officials,
particularly judges, failed to reply because they felt it
was unethical for them to answer such an inquiry, even
though anonymity was promised them. Some question
naires were returned not completed but with a brief com
ment. The nature of many of these comments suggests
that many of the white subjects who refused to respond
were violently opposed to desegregation.
On the basis of these speculations, it seems likely that
the prevalent bias of white non-respondents is in the
direction of opposition to the Supreme Court’s decision
and to attempts to implement it. In the case of Negroes,
it is more likely that distrust of the motives of the research
and fear of expressing their opinions were the causes of
failure to reply.
All questions were of the check-list type. Questionnaires
were coded, punched on cards, and machine tabulated.4
For purposes of analysis, the subjects were regarded as
populations not necessarily representative of any larger
populations. Hence percentages are presented but no tests
of statistical significance have been made. Conclusions are
based, therefore, only upon gross differences in responses.
Even though these respondents cannot be regarded as
a representative sample, the nature of their selections
makes them important as groups. In spite of its scientific
limitations, this poll constitutes the most comprehensive
4. Statistical work was done by the Sociology Research Labora
tory of the Florida State University, under the direction of Prof.
Robert McGinnis and Dr. John M. Haer. All responsibility for
interpretation of the results is assumed by the Research Advisory
Committee, however.
117
and extensive assessment of public opinion in Florida
through the use of scientifically devised instruments that
is available. The fact that approximately one-half of such
groups of leaders, in the case of whites, and approximately
one-third, in the case of Negroes, expressed the opinions
indicated below is of itself important.
Findings.
Bearing in mind the caution which should be used in
generalizing to larger populations, the following conclu
sions may be drawn from the responses of those subjects
who did return questionnaires:
1. White groups differ greatly from each other in their
attitudes towards the Court’s decision, ranging from nearly
unanimous disagreement to a slight predominance of
favorable attitudes.
In Table 2 there can be seen the percentages of re
spondents in each group who selected each of the choices
indicative of his personal feelings. Table 3 shows com
binations of these choices into categories of “ Agreement,”
“ Neutral,” and “ Disagreement.” From these tables it
can be seen that peace officers are overwhelmingly opposed
to the principle that segregation should be ended. On the
other hand, a slight majority of white principals, super
visors and ministers indicate agreement with the principle
established by the court, although they vary in their opin
ions as to when it should be implemented. Other groups
ranking high in disagreement with the decision are county
officials, school officials and white PTA leaders.
2. White groups also differ from each other in willing
ness to comply with whatever courts and school boards
decide to do regardless of their personal feelings.
118
In Table 4 combinations of choices shown in Table 2
are presented to show willingness to comply with official
policy or intention to resist or refuse to cooperate. In
this case elected officials, including county officials, school
officials, and legislators, rank high in intention to oppose
action to bring about desegregation, as do white PTA
leaders. White principals and supervisors rank very low
in intention to oppose desegregation.
3. Peace officers are the white group most opposed to
desegregation. (Table 3).
4. Almost no whites believe that desegregation should be
attempted immediately. (Table 2).
5. A large majority of both Negro groups are in agree
ment with the Court’s decision declaring segTegation
unconstitutional. (Table 3).
6. While only a small minority of both Negro groups
believe that desegregation should be attempted immedi
ately, an even smaller minority would oppose attempts
to bring about desegregation or refuse to cooperate.
(Table 2).
7. Only a minority of whites in all groups believe that
opponents of desegregation would resort to mob violence
in trying to stop it. A larger proportion, but still a
minority, believe that serious violence would result if
desegregation were attempted in their community in the
next few years.
Table 5 shows the predictions of the occurrence of mob
violence and serious violence by all groups. It is evident
that “ mob violence” and “ serious violence” do not mean
exactly the same thing to the subjects. It may be noted
that the peace officer group ranks highest in percentage
predicting both mob violence and serious violence.
8. A yet smaller minority of both of the Negro groups
119
anticipate mob violence or serious violence as a result of
steps towards desegregation. (Table 5).
9. The majority of all white groups are not sure that peace
officers could cope with serious violence if it did occur
in their communities, replying either “ N o” or “ Don’t
Know” to the question.
Table 6 shows the percentage of each group replying
either “ No” or “ Don’t Know” to the question, “ Do you
think the peace officers in your community would be able
to maintain law and order if serious violence is started!”
Again it may be noted that the peace officer group ranks
highest in percentage showing doubt as to the ability to
avoid or minimize violence.
10. A much smaller proportion of both Negro groups ex
press doubts as to the ability of law enforcement officials
to deal with serious violence. (Table 6).
11. The majority of most of the white groups believe
that peace officers could maintain law and order if minor
violence occurred.
Table 7 shows the percentage of respondents in each
group who answered “ Yes” to the question, “ Do you
think the peace officers in your community would be able
to maintain law and order if minor violence is started!”
The white PTA leaders differed markedly from other
groups, only 34.13 per cent answering “ Yes.”
12. The Negro groups did not differ greatly from the
white groups in the proportion believing that police could
cope with minor violence. (Table 7).
13. Only 13.24 per cent of 1669 peace officers believe that
most of the peace officers they know would enforce at
tendance laws for mixed schools.
14. A majority of the members of all white groups except
peace officers, who were not asked; radio station managers;
120
and ministers, believe that most of the people of Florida
and most of the white people in their communities disagree
with the Court’s decision.
Table 8 shows the percentage of the 10 groups asked
to assess the feelings of other people who felt that most
of the members of the groups about which they were asked
disagreed with the decision.
15. In the five white groups asked, from one-fourth to
one-half of the respondents believed that most of the
Negroes in their community were opposed to the desegre
gation ruling. (Table 8).
16. A much smaller proportion of both Negro groups be
lieve that most of the people of Florida, most of the whites
in their community, and particularly the Negroes in their
communities are in disagreement with the principle of
desegregation. (Table 8).
It was seen earlier that only a small minority of the
Negro respondents personally disagreed with the decision.
It may be seen now that only a small minority of these
Negroes think that other Negroes in their communities
are in disagreement with the court. Furthermore, a much
smaller proportion of Negroes than of whites think that
most white people in Florida are in favor of segregation
as a legal principle.
17. Only a small minority of all groups, white and Negro,
believe that immediate assignment of children to schools
on the basis of geographical location rather than race
would be the most effective way of ending public school
segregation.
Table 9 shows the percentage of each of 8 groups choos
ing as the most effective method immediate desegrega
tion, a very gradual transition, and either or both of
two gradual but relatively early methods of ending seg
regation. While the peace officers were not asked this
121
question, their answers to the question on “ personal
feelings about the decision” (Table 2) indicate almost
unanimous opposition to immediate desegregation.
18. All groups think a gradual program of desegregation
would be most effective. Negroes, however, prefer that
the process start within the next year or two with imme
diate, limited integration much more frequently than do
whites. The whites prefer a very gradual transition with
no specified time for action to begin. (Table 9).
19. Whites who expressed an opinion believe that the
primary grades and the colleges are the levels on which
desegregation could be initiated most easily. On the other
hand, almost as many Negroes believed that segregation
should be ended on most or all grade levels simultaneously
as believed it should be ended first at the lowest and
highest grade levels.
20. The maintenance of discipline in mixed classes by
Negro teachers is regarded as a potential problem by a
majority of white principals, supervisors and PTA leaders.
A much smaller proportion of Negroes regarded this as
a problem, with a majority of Negro principals believing
that colored teachers could maintain discipline in mixed
classes.
Table 11 shows the percentage of each group queried
as to possible problems who indicated definite belief that
certain things would or would not happen, thereby creating
problems for mixed schools.
21. A majority of all white groups believe that white
people would resist desegregation by withdrawing their
children from the public schools, but a much smaller pro
portion of Negroes, less than a majority, believe that this
would happen. (Table 11).
22. Almost two-thirds of white school officials— superin
tendents, board members, and trustees—believe that ap
122
plications of Negroes to teach in mixed schools would be
rejected. (Table 11).
23. Nearly three-fourths of school officials believe that
it would be difficult to get white teachers for mixed schools.
(Table 11).
24. Almost half of school officials and a little over 40
per cent of white PTA leaders believe that the people of
their communities would not support taxes for desegre
gated schools, but only about 20 per cent of Negro PTA
leaders believe that such support would not be forthcoming.
(Table 11).
25. In the case of all potential problems on which both
Negroes and white were questioned a smaller proportion
of Negroes than of whites indicate belief that problems
would arise as a result of desegregation. (Table 11).
26. In the case of peace officers there is a positive rela
tionship between personal disagreement with the decision
and lack of confidence in the ability of peace officers to
cope with serious violence. There is an even higher posi
tive relationship between belief that segregation should
be kept and belief that peace officers would not enforce
school attendance laws for mixed schools.
Table 12 shows the number of peace officers who feel
that the police could or could not maintain law and order
if serious violence occurs, according to their attitude to
wards the decision and its implementation. Table 13 shows
belief as to whether peace officers would enforce school
attendance laws by attitude towards the decision. The
officers who answer “ Don’t know” to these questions are
omitted from these tables. While peace officers were asked
what they thought other law enforcement officials could
or would do and were not asked what they themselves
would do, it is evident that these subjects are projecting
their own feelings and, perhaps, their intentions into other
peace officers.
123
Regional Variations.
The responses to certain items of the two largest groups
polled, the peace officers and the white school principals
and supervisors, were analyzed by region of the state in
which the respondents lived. The 67 counties of Florida
were grouped into 8 regions defined by social scientists
at the Florida State University in Florida Facts.1 These
regions and the counties each includes are:
Region Counties
I Bay, Escambia, Gulf, Okaloosa, Santa Rosa (Extreme
northwest Florida).
II Baker, Calhoun, Citrus, Columbia, Dixie, Franklin,
Gadsden, Gilchrist, Hamilton, Hernando, Holmes,
Jackson, Jefferson, Lafayette, Leon, Levy, Liberty,
Madison, Suwannee, Taylor, Wakulla, Walton,
Washington. (Northwest and north central Florida).
i n Alachua, Bradford, Clay, Putnam, Union. (North
east Florida, inland).
IV Lake, Marion, Orange, Osceola, Polk, Seminole, Sum
ter. (Central Florida, inland, largely rural).
V Brevard, Duval, Flagler, Indian River, Nassau, St.
Johns, Volusia. (Northeast and Middle Florida
coastal region, includes Jacksonville metropolitan
area).
VI Charlotte, Collier, Hillsborough, Lee, Manatee, Pasco,
Pinellas, Sarasota. (Southwest coastal, includes
Tampa-St. Petersburg, Bradenton-Sarasota metro
politan area).
VII DeSoto, Glades, Hardee, Hendry, Highlands, Okee
chobee. (South central, inland, rural, many migrant
farm laborers).
VTTT Broward, Dade, Martin, Monroe, Palm Beach, St.
1. Tallahassee, Florida: School of Public Administration, The
Florida State University.
124
Lucie. (Southeast coastal, contains Miami metropoli
tan area and some migratory labor areas).
Clear-cut regional variations in attitudes and opinions
are found to exist, as is indicated by the following findings:
27. Although the majority of peace officers in all regions
feel that segregation should be kept, the percentage feel
ing so varies from 83 per cent in two regions to 100 per
cent in one region.
Personal feelings, of peace officers about the decision are
presented, by region, in Table 14. The variation in the
number of respondents in the different regions seems to
he explainable in terms of the number of counties in the
different regions and the size of population. While it was
impossible to ascertain the number of questionnaires mailed
to each region, the distribution of returns of peace officer
questionnaires approximates the distribution of population
by region. It should be noted that Region VII ranks
highest in percentage of peace officers who oppose de
segregation, while Regions I and VIII rank lowest.
28. The percentage of white principals and supervisors
who are in disagreement with the decision varies from 20
per cent to 60 per cent in different regions.
The percentage of white principals and supervisors
agreeing and disagreeing with the decision, by region, is
shown in Table 15. Again Region VII ranks highest in
amount of opposition and Region VIII ranks lowest.
29. A large majority of white principals and supervisors
in all regions indicate that they would comply with the
decision regardless of personal feelings, but the percent
age varies from 76 per cent in Region VII to approximately
94 per cent in Regions V I and VIII. (Table 16).
30. The percentage of peace officers predicting mob vio
lence as a method of resisting desegregation varies from
125
20 per cent in Region VIII to nearly 63 per cent in Region
VII. (Table 17).
31. Percentages of both peace officers and white principals
and supervisors predicting serious violence in the event
desegregation is attempted vary widely between some
regions. (Table 18).
32. The majority of both peace officers and white princi
pals and supervisors in all regions doubt that the police
could maintain law and order if serious violence occurred,
but there are some regional variations. (Table 19).
Responses of Legislators.
Although the 79 members of the state legislature who
returned questionnaires constitute almost 15 per cent of
the 176 legislators and legislative nominees to whom the
forms were sent, generalizations to the entire membership
of the legislature on the basis of their responses are en
tirely unwarranted. Any attempt to predict the action of
the legislature at its next session would be even more pre
sumptuous. The responses of these legislators to tAvo spe
cial questions asked of them are presented below as a
matter of interest, however.
The legislators were asked to indicate which of five pos
sible courses of action should be followed at the next ses-
\
sion of the legislature. The percentage checking each course,
and the details of the five courses of action, are shown in
Table 20.
The legislators were also asked Avhether they believed
that there is any legal way to continue segregation in Flor
ida Schools indefinitely. Of the 79 respondents, 34.20 per
cent replied “ Yes” , 25.31 per cent replied “ N o” , and 39.32
per cent answered “ Don’t KnoAv” , or gave no answer.
126
CONCLUSIONS
1. It is evident that white respondents drawn from differ
ent areas of leadership vary sharply in their feelings about
the rectitude of the Supreme Court’s decision of May 17,
1954. At least this small, but not unimportant, segment of
leaders in Florida is far from unanimous in allegiance to
the principle of segregation in public education.
2. There are definite regional variations in attitudes to
wards the decision, in predictions of the likelihood that
serious violence may occur if desegregation is attempted,
and in confidence in the ability of the police to maintain
law and order if serious violence does occur.
3. A majority of all groups except Negro principals do
not feel confident that the police in their communities could
cope with serious violence. This is particularly true of the
peace officers themselves. At the same time, serious violence
is anticipated by only a minority of all groups, although
by almost 50 per cent of the peace officers.
4. Withdrawal of white children from the public schools,
the maintenance of discipline in mixed classes by Negro
teachers, refusal to employ Negro teachers for mixed
schools, and difficulty in obtaining white teachers are the
outstanding potential problems found to be expected.
5. It is evident that the white and Negro groups view the
decision and the problem which desegregation might cre
ate quite differently, and that they do not understand each
other’s attitudes. The majority of the whites are, in va
rious degrees, opposed to the decision; the Negroes are in
favor of it. Yet the whites believe that the Negroes are
opposed to desegregation to a much greater extent than
those Negro groups polled are found to be. Furthermore,
the white and Negro groups assess Negro opinion differ-
127
j
ently, a much larger proportion of whites than Negroes
believing that most Negroes prefer segregated schools.
The whites view the effecting of desegregation as a much
more difficult and dangerous problem than do the Negroes,
many more of them foreseeing serious problems and even
violence. On the other hand, the Negroes have more con
fidence in the ability and the willingness of the whites to
adapt to desegregation than do the whites themselves.
6. The majority of all groups, white and Negro, believe
that desegregation should be put into effect gradually rather
than abruptly and immediately. More Negroes than whites,
however, are in favor of early integration on a limited
scale and beginning in the next year or two. The whites
favor a more indefinite and remote form of gradualism, if
they will countenance the idea of desegregation at all.
7. The existence of a positive relationship between the
attitudes of peace officers towards the decision and their
predictions of the inability of police to control serious vio
lence suggests the existence of a tendency to project their
own feelings into situations which might arise and into
other persons involved. Such highly subjective predictions
are very likely to be indications of what the respondent
himself would do, or feels he could do, in the situation. Such
predictions might very well take on the character of “ self-
fulfilling prophecies. ’ ,2 I f police officers do not believe that
they or others would be able to maintain law and order if
serious violence occurs, the likelihood that they will attempt
wholeheartedly to do so is accordingly reduced.
2. An outstanding American sociologist, Robert K. Merton, has
defined the “ self-fulfilling prophecy” as a “ false definition of the
situation evolving a new behavior which makes the originally false
conception come true.” See his article, “ The Self-Fulfilling
Prophecy,” The A ntioch Review , V III (Summer, 1948), 193-210.
128
SAMPLE QUESTIONNAIRE
COUNTY SUPERINTENDENTS, SCHOOL
BOARD MEMBERS, SCHOOL TRUSTEES:
̂ 1. In what county do you serve?..........................................
2. How long have you served in public school work?
(Check one)
1)—less than 2 years; 2)— 3-4 years; 3)— 5-8 years;
4)—9-12 years; 5) over 12 years.
3. Check the sentence that most nearly describes your
feelings toward the Supreme Court decision declaring
segregation in public schools unconstitutional:
1) —Firmly in favor of the decision, and believe that
schools should be immediately opened to both races
, throughout Florida.
2) —Firmly in favor of the decision; feel schools should
be gradually combined, taking into consideration
places which need more preparation.
3) —Feel that such a decision should have been made
eventually, but believe we are not ready for it.
Feel we must move very slowly and cautiously.
4) —Neither in favor of nor against the decision; will
agree with whatever the courts and the school of
ficials do.
5) Against the decision, but will agree with whatever
the courts and school officials do.
6) —Firmly against the decision; will not cooperate in
ending public school segregation.
7) —Firmly against the decision; will actively oppose
any attempt to end segregation in Florida schools.
4 ...............Which one of the above statements do you
think describes the feelings of most of the people in
Florida? (Write the answer in the blank) 5 6
5 ........Which describes the feelings of most of the
school teachers and administrators in your county?
6 ........Which describes the feelings of most of the
white parents in your county?
129
7...................Which describes the feelings of most of the
colored parents in your county?
Suppose that in the next few years the court ordered
school officials to admit colored and white children to the
same schools.
8. Do you think anyone in your community would try to
stop this? Yes........... No...........
9. I f they did, what would they do? (Check your answers)
1) —Petition to stop combining schools
2) —Hold protest meetings
3) —Keep their children home from school
4) — Start individual violence
5) — Take part in mob violence
10. Would you resign rather than carry out such court
order? Yes........... No........... Don’t know...........
11. Do you think there would be violence in your commun
ity if colored and white children are admitted to the
same schools in the next few years? (Check one)
1) — Serious violence 3)—No violence
2) —Minor violence 4)—Do not know
Do you think your peace officers would be able to maintain
law and order if : (Check yes, no, or don’t know)
12. Serious violence is started? 1 )...........Yes 2 )........... No
3 ) ....Don’t know
13. Minor violence is started? 1 ).......Yes 2 )....... No 3 ).......
Don’t know
14. Check the method you believe would be most effective
in ending public school segregation:
1) —Immediate action to assign all children to school
on basis of geographical location rather than race.
2) —Keeping existing school boundaries for the time
being, but immediately letting children who want
to, go to the closest school regardless of race.
130
3) —A one or two year period of preparation before any
schools are integrated.
4) —A very gradual transition over a period of years.
15. In what grades do you think it would be easiest to
start admitting colored and white to the same schools?
(Check your answer)
1) — Grades 1, 2 and 3 4)—All grades 1 through 12
2) —Grades 1 through 6 5)— College and university
3) —High school 6)—Don’t know
Suppose in the next few years a few colored children wanted
to go to the nearest school, a white school. What do you
think would happen: (Check yes, no, or don’t know)
16. Would the School Board admit them
readily ?
17. Would the School Board admit them
only to certain schools?
18. Would the School Board admit them
if a court ordered it?
19. Would the School Board try to fight
a court order?
Yes No
Don’t
Know
Suppose schools are integrated in the next few years. WTiat
do you think would happen? (Check yes, no or don’t know)
20.
21.
22.
23.
24.
25.
26.
Would it be harder to get white
teachers ?
Would it be harder to get colored
teachers ?
Would applications of colored teachers
to teach in mixed schools be accepted?
Would many white teachers treat
colored children unfairly?
Would many colored teachers treat
white children unfairly?
Would colored teachers be able to
discipline white children?
Would higher school taxes be needed
for the integrated schools at first?
Yes No
Don’t
Know
131
27. Would your community support taxes
for integrated schools? ...........................
28. Would school bus drivers treat colored
children fairly ? ...........................
29. Would school bus drivers encourage
white students to treat colored chil
dren fairly? ...........................
30. Are there any accredited private
schools in your community other than
kindergartens ? ...........................
31. Would people try to start private
schools ? ...........................
32. I f you like, comment on the problems the Supreme
Court decision brings, and make any suggestions, using
hack of this sheet.
SAMPLE QUESTIONNAIRE
FLORIDA PEACE OFFICERS:
1. Check the position you hold:
—Deputy Sheriff — Constable
— State Highway Patrolman — Town Marshal
— City Chief of Police -—Other
— City Policeman
2. In what county do you serve?..............................
3. The U. S. Supreme Court recently declared segrega
tion in public schools unconstitutional. Which do you
think: (Check one) 1
1) — That segregation in schools should be kept
2) — That schools should be gradually opened to both
races over a period of years?
3) — That colored children who want to go to white
schools should be admitted immediately?
4. Suppose that in the next year or two the Court ordered
school officials to admit colored and white children to
the same schools.
132
a. Would anyone in your community try to stop this?
Yes....... No.......
b. I f they did, what would they do ? (Check your answer)
1) —Petition to stop combining schools
2) —Hold protest meetings
3) —Keep their children home from school
4) — Start individual violence
5) — Take part in mob violence
5. Would there be violence in your community if colored
and white children are admitted to the same schools?
(Check one)
1) — Serious violence
2) —Minor violence
3) — No violence
4) —Do not know
a. Would your existing law enforcement staff be able
to maintain law and order if
1) serious violence is started 2) minor violence is
6. Would most of the peace officers you know enforce school
attendance laws for mixed schools? (Check one)
1) —Yes
2) — No
3) —Do not know
7. If you want to say more or make suggestions about law
enforcement and segregation, please use the back of
this sheet.
started
a) —Yes
b) —No
c) —Do not know
a) —Yes
b ) — No
c) —Do not know
133
TABLE 1
QUESTIONNAIRES SENT AND RETURNED, BY GROUPS
Group
Number
Sent
Number Per Cent
Returned Returned
Peace Officers 3200 1669 52.16
Principals and Supervisors (white) 1216 771 63.40
PTA Leaders (white) 751 375 49.93
Newspaper Editors 219 118 53.88
Radio Station Managers 78 54 69.23
County Officials 533 230 43.15
School Officials 500 309 61.80
Legislators 176 79 44.89
Ministers 191 101 52.89
Negro Principals 485 180 37.11
PTA Leaders (Negro) 400 86 21.50
TOTAL 7749 3972 51.26
135
TABLE 2
PER CENT EXPRESSING VARIOUS
Groups and
Number 1 2 3 4
Peace Officers
(N-1669)
.5 9.2
Principals and
Supervisors (W )
(N-762)
PTA (W )
(N-375)
.4 13.2 38.4 4.9
Editors
(N-54)
.8 14.4 33.9 4.2
Radio Station Managers
(N-54)
1.8 14.8 24.0 7.4
County Officials
(N-224)
2.7 18.3 .9
School Officials
(N-309)
2.9 20.0 .6
Legislators
(N-79)
7.5 22.8 2.5
Ministers
(N-101)
1.0 34.6 26.7 4.0
Principals, (N)
(N-177)
11.9 55.4 11.3 8.5
PTA Negro
(N-86)
12.8 44.2 8.1 5.8
* The attitudes indicated by number are as follows:
1. Firmly in favor of the decision; believe that schools should be
immediately opened to both races. (For peace officers, “ Colored
children who want to go to white schools should be admitted
immediately.” )
2. Firmly in favor; feel schools should be gradually combined,
taking into consideration places which need more preparation.
(For peace officers, “ Schools should be gradually opened to both
races over a period of years.” )
3. Feel that such a decision should have been made eventually,
but believe we are not ready for it. Feel we must move very
slowly and cautiously.
4. Neither in favor of nor against the decision; will agree with
whatever courts and school officials do.
136
ATTITUDES TOWARDS DECISION, BY GROUPS
Attitude*
5 6 7 8 9 10 11 Total
89.3 1.0 100.0
26.8 4.9 7.9 .8 .9 1.4 .4 100.0
20.0 14.4 29.3 .8 2.4 1.1 1.6 100.0
16.1 6.8 16.1 .8 3.4 2.5 .8 99.8
20.4 11.1 11.1 1.8 1.8 5.6 99.8
22.8 12.0 30.4 5.8 3.1 4.0 100.0
21.7 9.7 34.6 4.9 2.9 2.6 99.9
16.4 5.1 38.0 1.3 5.1 1.3 100.0
8.0 10.0 11.9 2.0 1.0 99.2
1.1 1.1 5.6 1.7 2.2 1.1 99.9
2.3 4.6 4.6 5.8 1.2 5.8 4.6 99.8
5. Against the decision, but will agree with whatever courts and
school officials do.
6. Firmly against; will not cooperate in ending segregation.
7. Firmly against; will actively oppose any attempt to end
segregation.
8. Any combination of 1, 2, or 3 indicating agreement with
decision.
9. Any combination of 5, 6, or 7 indicating disagreement with
decision. (For peace officers, “ Segregation in schools should he
kept.” )
10. Any other combination.
11. No information.
137
TABLE 3
PER CENT AGREEING OR DISAGREEING WITH THE
DECISION. BY GROUPS
No
Group and
Number Agree Neutral
Dis
agree
Infor
mation Total
Peace Officers 9.7 89.3 1.0 100.0
(N-1669)
Principals and Sup. (W ) 52.9 4.9 40.4 1.8 100.0
(N-762)
PTA (W ) 29.6 1.6 66.1 2.7 100.0
(N-375)
Editors 50.0 4.2 42.4 3.4 100.0
(N-118)
Radio Station Mgrs 42.6 7.4 42.6 7.4 100.0
(N-54)
County Officials 21.0 .9 70.9 7.1 99.9
(N-224)
School Officials 23.0 .6 70.9 5.5 100.0
(N-309)
Legislators 31.6 2.5 64.6 1.3 100.0
(N-79)
Ministers 62.3 4.0 31.9 2.0 100.2
(N-101)
Negro Principals 84.2 8.5 3.9 3.4 100.0
(N-177)
PTA (Negro) 70.9 5.8 12.7 10.4 99.8
(N-86)
138
TABLE 4
PER CENT WILLING OR UNWILLING TO COMPLY WITH
COURTS AND SCHOOL OFFICIALS. BY GROUPS
Group and
Number*
Would Would Not
Comply Comply
No
Information Total
Principals and Sup. (W )
(N-762)
84.5 13.6 1.8 99.9
PTA (W )
(N-375)
51.2 46.1 2.7 100.0
Editors
(N-118)
70.3 26.3 3.4 100.0
Radio Station Mgrs.
(N-54)
70.4 22.2 7.4 100.0
County Officials
(N-224)
44.6 48.2 7.1 99.9
School Officials
(N-309)
45.3 49.2 5.5 100.0
Legislators
(N-79)
50.6 48.1 1.3 100.0
Ministers
(N-101)
74.3 23.9 2.0 100.2
Negro Principals
(N-177)
93.7 2.8 3.4 99.9
PTA (Negro)
(N-86)
79.0 10.4 10.4 99.8
* These combinations could not be made for peace officers.
139
TABLE 5
PER CENT OF EACH GROUP PREDICTING MOB VIOLENCE
AND SERIOUS VIOLENCE
Group and
Number
Predict
Mob Violence
Predict
Serious Violence
Peace Officers
(N-1669)
29.2 46.6
Principals and Sup. (W )
(N-771)
8.9 22.81
PTA (W )
(N-375)
17.3 33.72
Editors
(N-118)
8.5 20.3
Radio Station Managers
(N-54)
11.1 18.5
County Officials
(N-230)
23.0 35.3s
School Officials
(N-303)
31.0 44.9
Legislators
(N-79)
27.8 39.2
Ministers
(N-101)
10.9 13.9
Negro Principals
(N-180)
4.4 4.54
PTA (Negro)
(N-86)
5.8 8.1
1. N-762.
2. N-371.
3. N-224.
4. N-174.
140
TABLE 6
PER CENT OF EACH GROUP DOUBTING ABILITY OF PEACE
OFFICERS TO COPE W ITH SERIOUS VIOLENCE
Group and
Number
Answered
“ No” “
Answered
Don’t Know”
Answered
“ No” or
“ Don’t Know”
Peace Officers
(N-1669)
55.7 26.8 81.0
Principals and Sup. (W ) 34.7
(N-762)
40.7 72.4
PTA (W )
(N-375)
42.1 36.0 78.1
Editors
(N-118)
35.6 24.6 60.2
Eadio Station Man.
(N-54)
33.3 22.2 55.5
County Officials
(N-224)
41.1 25.4 66.5
School Officials
(N-303)
49.2 27.4 76.6
Legislators
(N-79)
49.4 21.5 70.9
Ministers
(N-101)
23.8 40.7 64.5
Negro Principals
(N-177)
11.3 31.6 42.9
PTA (Negro)
(N-86)
18.6 33.7 52.3
141
TABLE 7
PER CENT OF EACH GROUP W H O BELIEVE PEACE OFFICERS
COULD COPE W ITH M IN O R VIOLENCE
Group and Answered
Number “ Yes”
Peace Officers 50.9
(N-1669)
Principals and Sup. (W ) 52.1
(N-362)
P.T.A. (W ) 34.1
(N-375)
Editors 74.6
(N-118)
Radio Station Man. 59.3
(N-54)
County Officials 51.3
(N-224)
School Officials 41.6
(N-303)
Legislators 60.8
(N-79)
Ministers 64.4
(N-101)
Negro Principals 61.0
(N-177)
P.T.A. (Negro) 46.5
(N-86)
142
TABLE 8
PER CENT OF GROUPS POLLED W HO BELIEVE MOST OF
OTHER SPECIFIED GROUPS DISAGREE WITH THE DECISION
Specified Group
Group and Most People Whites in Negroes in
Number* ** in Florida Community Community
Principals and Sup. (W ) 65.61
(N-756)
73.0 25.1
P.T.A. (W )
(N-375)
61.6 87.5 42.5
Editors
(N-118)
59.3 69.5 *#
Radio Station Man.
(N-54)
42.6 72.3 #*
County Officials
(N-224)
74.82 80.8 47.8
School Officials
(N-303)
75.73 85.5 52.5
Legislators
(N-79)
69.1 78.6 39.1
Ministers
(N-101)
48.6* 48.6 ##
Negro Principals
(N-180)
7.8 26.7 8.9
P.T.A. (Negro)
(N-86)
16.3 37.2 15.1
1. N-770.
2. N-230.
3. N-309.
*For ministers, this question asked how most of the members of
their congregation felt.
**This group not asked how Negroes as a separate group felt.
143
TABLE 9
PER CENT OF EACH GROUP DESIGNATING VARIOUS
METHODS OF ENDING SEGREGATION AS
MOST EFFECTIVE
METHOD
— -
Group and Immedi- Very Other Infor-
Number ate Gradual Gradual* mation Total
Peace Officers .5 9.2 90.31 100.0
(N-1669)
Principals and
Sup. (W ) 3.1 71.7 19.5 5.4 99.7
(N-771)
P.T.A. (W ) 4.3 65.1 13.7 17.0 100.1
(N-375)
Editors 5.1 60.2 19.5 15.3 100.1
(N-118)
Radio Station
Man. 14.8 46.3 25.9 12.9 99.9
(N-54)
County Officials 5.2 49.1 16.0 29.6 99.9
(N-230)
School Officials 4.9 62.8 9.7 22.6 100.0
(N-309)
Legislators 11.4 49.4 17.7 21.5 100.0
(N-79)
Ministers 5.9 47.5 33.7 12.9 100.0
(N-101)
Negro Principals 9.8 31.6 55.7 2.9 100.0
(N-174)
P.T.A. (Negro) 13.9 26.7 46.5 12.8 99.9
(N-86)
* “ Other gradual” includes “ Keeping existing school boundaries
for the time being, hut immediately letting children who want to
do so go to the closest school regardless of race,” and “ A one or
two year period of preparation before any schools are integrated. ’ ’
1. These peace officers gave no information or answered “ Segre
gation should be kept.”
144
TABLE 10
PER CENT OF EACH GROUP DESIGNATING SPECIFIED GRADE LEVELS
AS EASIEST PLACE TO START DESEGREGATION
Group and
Number*
Grades
1-3 College
GRADE
1-3 and
College
LEVEL
All
Other
Don’t Know
or No Inf. Total
Principals and Sup. (W )
(N-771)
34.2 33.6 12.1 10.0 10.0 99.9
P.T.A. (W )
(N-375)
36.5 23.5 4.5 5.3 30.1 99.9
Editors
(N-78)
37.3 16.9 7.6 15.2 22.9 99.9
County Officials
(N-230)
26.1 18.3 3.5 10.0 42.2 100.1
School Officials
(N-309)
30.4 23.3 4.2 7.4 34.6 99.9
Legislators
(N-79)
22.8 34.2 5.1 10.1 28.0 100.2
Ministers
(N-101)
29.7 19.8 8.9 18.9 22.9 100.2
Negro Principals
(N-180)
23.3 13.9 11.1 43.9 7.8 100.0
P.T.A. (Negro)
(N-86)
23.3 16.3 1.2 40.7 18.6 100.1
* These combinations could not be made for peace officers.
PER CENT OF EACH GROUP DESIGNATING VARIOUS PROBLEMS AS BEING LIKELY TO ARISE
TABLE 11
Principals &
Problem Area Sup. (W) (771)
PTA
(W) (375)
School
Officials (303)
Principals
(N )(180)
PTA
(N) (86)
Discipline by White Teachers 16.7 3.9
Discipline by Negro Teachers 55.2 65.9 66.2 6.7 20.9
Lowering of Academic Standards 48.6 11.7
Unfairness by White Teachers 17.0 31.2 22.3 6.7 19.8
Unfairness by Negro Teachers 15.8 26.3 16.6 10.6 11.7
Unfairness to Negroes by Bus Drivers 22.6 25.3 14.4
Development of Private Schools 61.1 70.4 64.3 12.2 18.6
Withdrawal of Whites from Public Schools 55.4 57.6 63.4 12.2 18.6
School Officials Resigning 32.3
Difficulty in Hiring White Teachers 72.2
Rejection of Negro Teacher Applications 62.8
Lack of Tax Support for Mixed Schools 41.3 - 49.4 19.8
TABLE 12
CONFIDENCE OF PEACE OFFICERS IN ABILITY TO COPE
WITH SERIOUS VIOLENCE. BY ATTITUDE
TOWARDS DESEGREGATION*
Attitude
Belief that Police
If Serious
Could Maintain
Violence Started
Order
They Could They Couldn’t Total
Segregation should
be kept 193 836 1029
Segregation should be
ended, gradually
or immediately 54 64 118
r =-{-.45 t
•Peace officers who answered “ Don’t Know’ ’ have been omitted
from this table.
TABLE 13
CONFIDENCE OF PEACE OFFICERS THAT POLICE WOULD
ENFORCE SCHOOL ATTENDANCE LAW S FOR MIXED
SCHOOLS. BY ATTITUDE TOWARDS DESEGREGATION*
Attitude
Judgment of Willingness of Police to
Enforce Attendance Laws
They Would They Wouldn’t Total
Segregation should
be kept 151 796 947
Segregation should be
ended, gradually
or immediately 67 36 103
r = + .6 5t 1
Peace officers who answered “ Don’t Know’ ’ have been omitted
from this table.
147
TABLE 14
PER CENT OF PEACE OFFICERS EXPRESSING VARIOUS
ATTITUDES, BY REGION
Attitude Expressed
Region Keep
Segregation
Desegregate
Gradually
Desegregate
Immediately
No
Inf. Total
I 83.5 15.0 1.5 100.0
(N-133)
II 93.1 4.6 .8 1.5 100.0
(N-130)
III 86.7 12.0 1.2 99.9
(N-83)
W 92.9 6.3 .7 99.9
(N-269)
V 94.8 3.3 .7 1.1 99.9
(N-269)
V I 90.1 9.2 .6 99.9
(N-335)
V II 100.0 100.0
(N-27)
V III 83.4 14.2 .9 1.4 99.9
(N-423)
148
TABLE 15
PER CENT OF WHITE PRINCIPALS AND SUPERVISORS
AGREEING OR DISAGREEING WITH THE
DECISION, BY REGION
Region Agree Disagree Neutral
No
Inf. Total
I (N-71) 53.5 42.2 1.4 2.8 99.9
n (N-151) 38.4 54.3 6.6 .7 100.0
i n (N-38) 60.5 36.8 2.6 99.9
IV (N-135) 47.4 46.7 3.7 2.2 100.0
V (N-99) 47.5 40.4 8.1 4.0 100.0
VI (N-117) 65.0 30.8 3.4 .8 100.0
V n (N-30) 33.3 60.0 6.7 100.0
V in (N-121) 71.9 20.7 5.0 2.5 100.1
TABLE 16
PER CENT OF WHITE PRINCIPALS AND SUPERVISORS
WILLING OR UNWILLING TO COMPLY, BY REGION
Region
Would
Comply
Would Not
Comply
No
Inf. Total
I (N-71) 81.7 15.5 2.8 100.0
II (N-151) 78.1 21.2 .7 100.0
m (N-38) 78.9 21.1 . . . . 100.0
IV (N-135) 80.0 17.8 2.2 100.0
V (N-99) 84.8 11.1 4.0 99.9
VI (N-117) 94.0 5.1 .8 99.9
V n (N-30) 76.7 23.3 100.0
VIII (N-121) 93.4 4.1 2.5 100.0
149
TABLE 17
PER CENT OF PEACE OFFICERS PREDICTING MOB
VIOLENCE. BY REGION
Region
Per Cent Predicting
Mob Violence
I (N-133) 33.8
n (N-130) 36.1
H I (N-83) 26.5
IV (N-269) 39.9
V (N-269) 31.2
V I (N-335) 27.5
V H (N-27) 63.0
V i n (N-423) 20.6
TABLE 18
NUMBER AND PER CENT OF PEACE OFFICERS AND WHITE
PRINCIPALS AND SUPERVISORS PREDICTING
SERIOUS VIOLENCE. BY REGION
Region
Peace
GROUP
Officers
Principals and
Supervisors
No. Per Cent No. Per Cent
I 75 56.4 20 28.2
n 81 62.3 55 36.4
m 39 47.0 10 26.3
IV 144 53.5 28 20.7
V 129 48.0 20 20.2
V I 159 47.5 16 13.7
v n 16 59.3 13 43.3
v m 135 31.9 12 9.9
150
TABLE 19
NUMBER AND PER CENT OF PEACE OFFICERS AND WHITE
PRINCIPALS AND SUPERVISORS DOUBTING THAT
PEACE OFFICERS COULD COPE WITH SERIOUS
VIOLENCE, BY REGION*
Region Peace Officers
Number Per Cent
Principals and
Supervisors
Number Per Cent
I 105 78.9 53 74.6
n 109 83.8 111 73.5
m 74 89.2 27 71.1
IV 223 82.9 110 81.5
V 230 85.5 73 73.7
VI 265 79.1 76 65.0
v n 24 88.9 22 73.3
v m 314 74.2 80 66.1
* Based on total of respondents who answered “ No” or “ Don’t
Know” to question, “ Do yon think the peace officers in your
community would be able to maintain law and order if serious
violence is started?”
151
TABLE 20
NUMBER AND PER CENT OF LEGISLATORS FAVORING EACH
OF FIVE POSSIBLE COURSES OF LEGISLATIVE ACTION
Course of Action Number Per Cent
Legislation to preserve segregation in
definitely by whatever means possible 32 40.5
Legislation to preserve segregation for
a few more years, contemplating even
tual integration but permitting time
for development of public acceptance 8 10.1
Legislation permitting voluntary com
pliance with Court’s decision by local
school officials, after consultation with
patrons 4 5.1
Setting up legal machinery to permit
gradual adjustment on a local option
basis with provision for interracial
committees, group discussions by
school patrons and other means to
bring about harmonious and peaceful
compliance over a requisite period of
time 18 22.8
No legislative action 10 12.7
No information given 7 8.8
Total 79 100.0
152
Leadership
Opinion
By
Personal Interview
. . . and Conclusions*
While the mail questionnaire method may produce a large
volume of data in a short time, this method has many dis
advantages. One of the most important is the difficulty en
countered in analyzing the answers to open-ended questions,
questions which the subject may answer in his own words.
Another limitation is the difficulty encountered in reaching
subjects who are not included on some mailing list, such as
informal, non-official leaders in a community power struc
ture. Hence the mail questionnaire study of leadership
opinion in the state was supplemented by a study of leader
ship opinion in 10 selected counties by the use of personal
interviews.
Selection of Counties.
The 10 counties selected by the Research Advisory Com
mittee for intensive study included: Charlotte, Hillsborough
and Pinellas, in the southwest coastal region; Orange and
Lake, in the central, so-called “ Ridge Section” of the
* Prepared by Dr. Lewis Killian, Department of Sociology, Flor
ida State University.
153
peninsula; Duval, in the northeast coastal region; Lafayette,
a rural, inland county in the the north central portion;
Gadsden, a rural county in the northwest part of the
state; and Washington, a rural county, and Escambia, an
urban county, in the extreme northwest portion of the pan
handle of Florida.
In the selection of these counties, the following factors
were considered:
1. Representation of the different sections of the state.
(The southeast section was not included because an inten
sive study was made in Dade County and nearby areas by
the University of Miami).
2. Inclusion of both rural and urban counties.
3. Inclusion of counties with less than 10 per cent Negro
population (2) or more than 50 per cent (1). The state has
5 counties in the former category and 2 counties in the
latter.
4. Inclusion of certain counties which, on the basis of pre
liminary evidence, appeared to be areas of relatively high
or relatively low resistance to desegregation.
Method of Study.
Interviews were conducted by 16 public school employ
ees from various counties, 12 white and 4 Negro principals
or supervisors. No interviewer was assigned to work in his
home county. For unavoidable practical reasons, no inter
views with Negro subjects were obtained in two counties,
and in three other counties only a limited number were ob
tained, these by white interviewers.
The interviewers, all carefully chosen for the task, were
given one day of intensive training in the selection of sub
jects for interview, interviewing techniques, and interview
recording. A schedule consisting of thirteen open-ended
questions, similar to the structured questions used on the
154
mail questionnaire and supplemented by suggested probing
questions, was furnished. The interviewers were also given
a list of community leaders, official and non-official, whom
they should attempt to interview. It should be noted that
the field workers were instructed to follow the advice of
local informants in selecting subjects, both white and Ne
gro, considered to be important figures in the power struc
ture of the community.
Each interviewer wrote, at the completion of his field
work, an independent analysis of the situation in the county
he studied. In addition, a content analysis was made of all
interviews by a team of eight analysts, four white and four
Negro, from the State Department of Education, the
Florida A. and M. University, and the Florida State Uni
versity. In this analysis the interviews were coded for
IBM tabulation.1 After analysis and coding were com
pleted, approximately one-half of the interviews were coded
for two items a second time by another member of the
team, white and Negro members exchanging interviews. A
reliability check on these items revealed a high degree of
reliability between ratings by separate analysts, indicating
that personal and racial biases in the interpretation of the
interview protocols were slight.
Findings.
Interviews were obtained from a total of 460 white sub
jects and 195 Negro subjects. Of the white subjects, 263
were official leaders (County, city and school officials,
judges, peace officers, and school employees) and 197 were
non-official leaders (business, professional, civic club, re
1. Statistical analysis of the interview data was done in the
Sociology Research Laboratory of the Florida State University,
under the direction of Prof. Robert McGinnis and Dr. John M.
Haer. Responsibility for the interpretation of the results is as
sumed by the Research Advisory Committee.
155
ligious, labor, youth). There were 42 Negro subjects who
were school employees, and 153 non-official Negro leaders,
including a large number of insurance men, undertakers,
and independent business men.
Distribution of the interviews by counties, for Negro and
white, are shown below:
County White Negro
Charlotte 34 None
Duval 47 31
Escambia 40 64
Gadsden 27 7
Hillsborough 79 43
Lafayette 20 None
Lake 43 7
Orange 47 21
Pinellas 90 13
Washington 33 9
On the basis of statistical analysis of the interviews and
the impressions reported by the field staff, the findings
indicated below were reached. Although a different method
of study was used, these findings do not differ significantly
from those of the questionnaire study.
These findings are:
1. The majority of white subjects (67.7 per cent) are in
disagreement with the decision, but only 4.1 per cent of the
Negroes interviewed disagreed.
Even white subjects who thought the decision was right
expressed, for the most part, fear that violence would occur
if desegregation were not worked out gradually or if, in
the words of some, “ it is crammed down our throats.”
Some whites violently opposed to the decision made such
statements as, ‘ ‘ The decision is an outrage; it is wrong and
will never work,” and “ These colored children should be
treated in such a way that they would not want to come
back to school.”
156
On the other hand, a Negro interviewer summarized the
opinions of Negroes in one county in the words, “ God is
behind the court’s decision. He will see that it is carried
out, but he doesn’t want us to hasten,’ ’ and in another coun
ty in the words, “ This problem should have been met
squarely years ago. There is no need attempting to cir
cumvent, but settle the problem once and for all instead of
passing it into the laps of our children.”
2. Slightly less than half (45.7) per cent of the whites
indicated that they would not cooperate with the decision
of the courts or local school officials as to how to effect
desegregation, only 16 per cent indicating that they would
actively oppose attempts to end segregation.
Caution must be exercised in inferring that a major seg
ment of the white leadership represented here would “ go
along” with any plan for desegregation, regardless of
its nature. It must be considered that many informants may
have been indicating willingness to comply with what they
thought the courts and, particularly, the school officials
would do, but not with anything that they might possibly
decide.
3. One reason given by white subjects for disagreement
with the decision was that it is a violation of “ states’
rights” and, in effect, a negation of local autonomy.
4. White leaders are almost unanimously opposed to any
immediate steps to end segregation in their communities,
only 4 out of 460 favoring such steps.
5. Of the Negro leaders, only 28.2 per cent favor immediate
ending of all segregation in public education in their com
munities, but 58.9 per cent believe that the transition should
begin within the next three years. 6
6. Whites and Negroes differ sharply in their assessment
of white community opinion on the decision, 77 per cent of
the white leaders believing most of the white people in their
157
communities disagree with the decision, but only 25.1 per
cent of the Negroes believing this.
7. Whites and Negroes differ sharply in their assessment
of Negro opinion in their communities, 54.3 per cent of the
white leaders believing that most Negroes disagree with the
decision, but only 6.1 per cent of the Negro leaders believ
ing so.
8. While only 30 per cent of the whites believe that even
a few Negro children could be admitted now to a previously
all white school without resulting violence, 76.4 per cent of
the Negroes believe that this could be done without causing
violence.
9. Of the subjects answering the question (210 white, 82
Negro), a majority of Negroes (89 per cent) believe that
peace officers could and would maintain law and order if
violence started, hut only 46.7 per cent of the whites believe
this. A great many subjects in both groups did not answer
this question.
10. While many white leaders seem to expect trouble and
even violence to occur if desegregation is attempted, there
was no definite group or category of people which was
specified by more than 10 per cent of the respondents as
being likely to cause this trouble.
11. White leaders designated the primary grades and the
colleges and universities most frequently as the best place
to start desegregation if it were undertaken (primary—
31.7 per cent; college—13.3 per cent; both— 8.5 per cent)
but Negro leaders designated all grades from primary
through high school most often (32.3 per cent).
12. Specific problems other than violence which might arise
from desegregation were identified by a greater proportion
of whites than of Negroes, although only a minority of each
group designated any given eventuality as a likely prob
lem. The problems most often designated by whites were:
getting white teachers to teach in mixed schools; using
Negro teachers in mixed schools; maintaining discipline
on school busses and in classes; getting white parents to
158
send their children to mixed public schools; keeping pres
ent academic standards; and getting tax support for mixed
schools.
13. In no county does it appear that more than a small
segment of whites is ready to accept immediate and
abrupt desegregation. In two counties, however, a majority
of the white leadership interviewed (in one, 59.5 per cent,
in the other, 72.4 per cent) believe that desegregation can
be accomplished peacefully and effectively if it is done over
a period of years, with a preparatory program of educa
tion, and at a rate determined by the local citizens.
14. In one county, the high frequency of belief among white
leaders that segregation should be kept, that violence would
result from desegregation, and that peace officers could
not cope with such violence, makes it appear very likely
that conflict and disorder would result if an attempt to
start desegregation by any means was undertaken even
within from five to ten years from the present.
15. Inspection of the interview protocols and the reports
of the field staff reveal that even within counties there is
wide variation in readiness by whites of different commun
ities to accept desegregation.
In one county there is one community in which both Ne
gro and white leaders fear serious violence, in which or
ganized, violent opposition to desegregation is anticipated,
and in which, indeed, organized but peaceful opposition has
already appeared. In the same county is a community in
which, in the judgment of both white and Negro interview
ers, gradual but effective desegregation could be accom
plished in the next few years. Similar situations exist in
all but two of the counties, both predominantly rural but
differing in region and proportion of Negroes in the
population.
16. Concrete suggestions for effective first steps towards
gradual desegregation offered by subjects include a period
of education preparatory to the first steps, and the work
ing together in interracial committees of adults who would
study together the problems confronting their community.
159
THE PERSONAL INTERVIEW SCHEDULE
Position:
How Selected:
1. Just what do you understand the Supreme Court de
cision to mean!
2. How do you feel about the decision ?
Probing:
Feel it was right?
Feel it was wrong?
Feel it was neither right nor wrong—just not sure ?
I f right,
Not at this time?
We need time?
We should try to end segregation immediately?
I f wrong,
Should cooperate because it is the law?
Will not cooperate in ending segregation?
Will actively oppose the action?
I f neutral,
Will do whatever the courts and school officials
say?
3. How do you think most of the people of Florida feel
about it?
4. How do you think most of the people of this commun
ity feel about it?
Probing:
How do white people feel about it?
How do colored people feel about it ? 5
5. Do you think there are any people in this community
who feel differently about this?
I f yes, probing:
How do they feel about it?
What kind of people are they? (General descriptive
terms)
Are they organized in any way?
16 0
What kinds of things do yon think they would do to
put across their viewpoint?
6. Now, suppose the local school board decided in the next
few years that it had to let a few colored children who
lived in a mostly white attendance area go to the near
est school. What do you think would happen?
Probing:
What would people in this community do?
Would anyone try to keep them from attending the
school?
If so, who would they be? (Not by name—just a gen
eral description) What kinds of things would
they do ?
Wlio would be the leaders?
Who would participate?
Would the existing law enforcement staff of this
community be able to prevent violence from occur
ring?
Under what conditions would they be able to prevent
violence, and under what conditions would they
not be able to ?
7. Now, suppose that in the next few years a few colored
persons in your county applied for admittance to a
white school and a court ordered that they be admitted.
What do you think would happen?
Probing:
What would people in this community do ?
What would the school board do? (Admit them im
mediately? Try to fight the court order? Besign?)
If they decided to admit them, would anyone try to
keep them from attending school?
(Continue as in question 6)
8. Suppose the local school board decided that it had to
let all children go to the school nearest their home.
What do you think would happen?
Probing: (Same as for question 6)
9. I f segregation in the schools were done away with in
the next few years, what problems do you think would
come up?
161
Probing:
In the employment of white teachers?
In the employment of colored teachers ?
In transportation of children to school?
In getting public support for school finance pro
grams ?
In keeping order among the children in the classroom
and on the playground?
In getting parents, white and colored, to send their
children to mixed schools?
In getting fair treatment by teachers of all children
regardless of race?
In keeping high teaching standards in the schools?
10. What ways can you suggest for handling any of the
problems you have mentioned?
11. Suppose public school segregation had to be ended
sooner or later. What do you think would be the best
way to do it ?
Probing:
There just isn’t any way?
Assign all children to school on the basis of geo
graphical location immediately?
Keep present school boundaries at first and let chil
dren who want to do so go to the closest school?
Have a one or two year period of preparation before
any steps are taken to end segregation?
Try to work it out over a period of years ?
12. I f it had to be done in the next few years, in what grades
do you think it would be easiest to start admitting col
ored and white to the same schools?
13. Is there anything I haven’t touched on in my questions
which you would like to comment on?
Personnel Interviewed
A. Leaders (Officials)
County Commissioners, Chairman
Mayor or City Manager
Sheriff
Chief of Police
162
County Judge
County Solicitors
Superintendent of Schools
County Health Officer
County Board of Public Instruction, Chairman
County School Trustees, Chairman
County Commissioners
City Commissioners
Deputies
Police Officers
Circuit Judge
State Attorney
Judge, Court of Criminal Record
County Board of Public Instruction, Members
County School Trustees, Members
B. Leaders (Non-officials)
School principals
School supervisors
Teachers
PTA leaders
Women’s Club leaders
Chamber of Commerce president
Civic and Veterans’ organizations leaders
Newspaper editor or publisher
Bankers
Lawyers
Doctors
Realtors
Labor union leaders
Undertakers
Insurance men
Leading business men
Directors, housing projects
Other leaders designated by respondents as:
(1) Being in a position to know what people in the com
munity are thinking and doing.
(2) Being important in influencing what people in the
community think and do.
163
RELIABILITY OF JUDGMENTS IN THE
ANALYSIS OF RECORDED INTERVIEWS
ON THE SUBJECT OF THE
SUPREME COURT’S SEGREGATION DECISION*
Eight trained social scientists—four Negro, four white—
made the analysis of 657 interviews recorded on the sub
ject of the Supreme Court decision declaring segregation
unconstitutional. Each judge analyzed approximately 80,
using a scale devised for the specific case at hand.
To indicate the reliability of ratings by the judges, two
items were arbitrarily selected for analysis. The two items
selected were thought to offer representative difficulties to
the judges. The judges were paired— one white and one Ne
gro—and each judge independently re-rated half of his
partner’s interviews on the two items.
The first item concerned a judgment of the personal feel
ing of the respondent on the following scale:
1. Firmly in favor of the decision, and believe that schools
should he immediately opened to both races throughout
Florida.
2. Firmly in favor of the decision and feel schools should
be gradually combined, taking into consideration places
which need more preparation.
3. Feel that such a decision should have been made even
tually, but believe we are not ready for it. Feel we must
move very slowly and cautiously.
4. Neither in favor of or against the decision; will agree
with whatever the courts and school officials do.
5. Against the decision, but will agree with whatever the
courts and school officials do.
* Prepared by Fay-Tyler M. Norton, graduate psychologist.
164
6. Firmly against the decision; will not cooperate in end
ing public school segregation.
7. Firmly against the decision; will actively oppose any
attempt to end segregation in Florida schools.
8. Other; Pro-segregation
9. Other; anti-segregation
0. Don’t know
x. No information
The second item concerned a judgement on the “ general
tone of the interview.” The scale consisted of the following:
(1. Will oppose.
(2. It won’t work.
(3. Indecisive.
(4. Can be worked out, but wall take time.
(5. Integration can take place soon.
The plan for statistical analysis included percent of
agreement between judges, Chi square, and the contingency
coefficient for each of the eight sets of paired judgements.
For purposes of reporting and analysis, it was deemed
more meaningful to combine categories in both items to
form a directional scale. A preliminary check revealed that
the categories were probably too finely drawn to be highly
reliable as specific categories. In the first item, categories
1, 2, 3, and 9, and categories 5, 6, 7, 8, were used to indicate
“ in favor” or “ against” the decision, respectively. In the
second item, categories 1 and 2, and categories 4 and 5
were used to indicate “ unfavorable” and “ favorable” , re
spectively. There were no interviews rated as 0 or x.
Table 1 shows (1) the percent of agreement between the
pairs of judges on both items and (2) the total number of
paired judgments made by each pair. The consistency of
the judges is evident.* It is especially important that con
* Note that the probability for agreement on only one interview
is 1/9.
165
sistency of judgment was found between white and Negro
judges.
Tables 2-5 indicate the ratings given the personal atti
tude of the interviewees by the four pairs of judges.
Each of the extremely high values of Chi square would
occur much less than .001 times by chance alone. Inspection
of the tables will show the positive relationship of the
judges’ ratings. The contingency coefficients indicate the
degree of association.
Tables 6-9 indicate the classifications of the interviews
according to “ general tone.” Here again each of the ex
tremely high values of Chi square would occur much less
than .001 times by chance alone. The relationship of the
judges ’ classifications is also a positive one, the contingency
coefficients indicating the degree of association.
Note must be made of violation of an assumption basic
to the use of the Chi square statistic. Several of the theo
retical cell frequencies in each table are less than 5. In this
case the violation is not as serious as it might be, because
the values of Chi square are extremely high. Reference is
made to the article on the Chi-square test by Lewis and
Burke.1
The four independent indicators of reliability for each
of these items are acceptably high. The extension of accept
able reliability to other items of the interview analysis must
be made on logical grounds alone.
1. Lewis, Don, and Burke, C. J. The use and mis-use of the
Chi-square test. Psychol. Bull., 1949, 46, 433-489.
166
PER CENT AGREEMENT BETWEEN JUDGES
TABLE 1
I. RATINGS OF INTERVIEWEE FEELING
Judges* Per Cent Total No.
I & II 94 89
III &IV 93 86
V & VI 92 60
VII & V III 89 82
II. RATINGS OF INTERVIEW S AS A WHOLE
Judges* Per Cent Total No.
I & II 85 85
III & IV 80 84
V & V I 66 61
VII & V III 80 80
#Judges I, III, V, V II—Negro
Judges n , IV, VI, VIH—White
167
TABLE 2
FREQUENCIES OF RATINGS OF INTERVIEWEE
FEELING BY JUDGES I & I I
Judge I
In favor of Against the Total
Supreme Court Neutral Supreme Court No. of
decision decision cases
In favor of
Supreme Court
decision
37 1 2
Judge II Neutral 0 5 0
Against the
Supreme Court 1 1 42
decision
Total No.
of cases 89
Chi square=75.9711; P less than .001
C— .68
TABLE 3
Judge IV
FREQUENCIES OF RATINGS OF INTERVIEWEE
FEELING BY JUDGES H I & IV
In favor of
Judge III
Against the Total
Supreme Court
decision
Neutral Supreme Court
decision
No. of
cases
In favor of
Supreme Court
decision
50 0 1
Neutral
Against the
1 0 1
Supreme Court
decision
2 1 30
Total No.
of cases 86
Chi square=79.368; P less than .001
C=.69
TABLE 4
Judge VI
Judge V
FREQUENCIES OF RATINGS OF INTERVIEWEE
FEELING BY JUDGES V & V I
In favor of Against the Total
Supreme Court
decision
Neutral Supreme Court
decision
No. of
cases
In favor of
Supreme Court
decision
17 0 1
Neutral
Against the
1 1 2
Supreme Court
decision
1 0 37
Total No.
of cases 60
Chi square=44.436; P less than .001
C=.65
TABLE 5
FREQUENCIES OF RATINGS OF INTERVIEWEE
FEELING BY JUDGES VII & VIII
In favor of
Judge VII
Against the Total
In favor of
Supreme Court
decision
Neutral Supreme Court
decision
No. of
cases
Supreme Court
decision
55 1 7
Judge V III Neutral
Against the
0 1 0
Supreme Court
decision
1 0 17
Total No.
of eases
Chi square=50.5192; P less than .001
C=.62
TABLE 6
FREQUENCIES OF CLASSIFICATIO N OF
INTERVIEW S BY JUDGES I & H
Judge I
M
to
Judge II
Unfavorable
Neutral
Favorable
Unfavorable
24
0
4
Neutral
1
0
1
Favorable
6
1
48
Total
No. of
cases
Total No.
of cases
Chi square=51.067; P less than .001
C=.61
85
TABLE 7
Judge III
FREQUENCIES OF CLASSIFICATIO N OF
INTERVIEW S BY JUDGES ID & IV
Unfavorable Neutral Favorable
Total
No. of
cases
Unfavorable 16 1 3
Judge IV Neutral 4 1 4
Favorable 2 3 50
Total No.
of cases 84
Chi square=48.511; P less than .001
C=.50
TABLE 8
Judge VI
Judge V
FREQUENCIES OF CLASSIFICATIO N OF
INTERVIEW S BY JUDGES V & V I
Unfavorable Neutral Favorable
Total
No. of
cases
Unfavorable 24 1 8
Neutral 4 0 7
Favorable 0 1 16
Total No.
of cases 61
Chi square=21.395; P less than .001
C=.41
TABLE 9
FREQUENCIES OF CLASSIFICATIO N OF
INTERVIEW S BY JUDGES V II & V III
Unfavorable
Unfavorable 3
Judge V III Neutral 5
Favorable 7
Judge V II
Total
No. of
Neutral Favorable eases
0 0
3 3
1 58
Total No.
of cases 80
Chi square=25.4613; P less than .001
C=.47
Analysis
of Negro Registration
and Voting
in Florida
1940-1954*
This is a study of the trend of Negro registration for
voting for the years 1940-1954, an example of the way
Negroes have begun to take advantage of a privilege from
which State restrictions were removed by a federal court
decision.
The reliability of figures on registrations is questionable.
In many instances supervisors have failed to keep accurate
and up-to-date records, and in several instances the report
made to the Secretary of State differs from that made to
the Attorney General. It is impossible to compare the per
cent of negroes over 21 registered with the percent of whites
over 21 registered; many counties report more white reg
istrants than there are adults over 21 according to the 1950
census.
Immediately evident from graphs of the number of Ne
groes registered is the tremendous increase in registration
following 1944 when the decision in Smith v. Allwright
(321 U.S. 649) was made applicable to Florida through
further litigation.
* Prepared by Dr. Malcolm B. Parsons and Dr. J. A. Norton,
School of Public Administration, Florida State University.
177
Evident from a county-by-county report is the great vari
ation among counties in the percentage of non-whites over
21 who are registered.
There is also a variation in the time when Negro regis
trants increased. The following table shows the time pat
tern for counties with no Negroes registered.
Number of Counties with No Negro Registrants
1940— 51
1944—36
1946— 4— Madison, Liberty, Lafayette, Union, Hendry (2)
1948— 4—Madison, Liberty, Lafayette, Union (1), Hendry
1950— 5—Madison, Liberty, Lafayette, Union, Calhoun
1952—- 4— Madison, Liberty, Lafayette, Union
1954— 3— Liberty, Lafayette, Union
The counties which have had no Negroes registered since
1946 have all been in north Florida, except for Hendry
which left this group in 1950.
Madison county is a good example both of how rapidly
situations can change and the techniques necessary to pro
duce a change. Madison County had no Negro registrants
until just before the 1954 primaries. At this time 586 Ne
groes went to the courthouse en masse and were registered.
According to the supervisor of registration most of the
registrants exercised their franchise.
In 1952, the counties in North Central Florida (the planta-
tion-South culture) showed a generally uniform pattern
of a low percentage of Negro registrants. All 4 counties
with no Negroes registered are in this bloc.
Very interesting are the Florida counties, especially in
North Florida, showing a high percentage of Negroes reg
istered. These reports would bear close examination in light
of participation reports and other studies. "Where urban
machines are known to operate the pattern is not surprising.
In other counties the explanations do not come easily.
178
Graphs showing absolute numbers of Negro registrants
from 1940 through 1954, and the percent of adult Negroes
registered for those years, are attached for each of the 12
counties under interview scrutiny.
“ We don’t mind for our niggers to register, but we don’t
let ’em vote” , a north Florida official is quoted as saying.
The questionnaire sent to supervisors furnishes the only
information on the number of Negroes who actually vote.
Many of these figures were plainly labelled “ estimates” ,
others probably are.
Many reports must be interpreted in one of two ways:
(1) They are either poor guesses, or
(2) Any Negro who dares register is determined to exer
cise his right to vote.
This evaluation is made because the percentage of reg
istered Negroes who vote is much higher than one would
estimate on the basis of the social-economic levels which
correlate with voting interest. The evaluation applies with
somewhat less force to the counties under interview scru
tiny, but it is not clear why.
179
SUM M ARY SHEET OF ATTORNEY GENERAL'S QUESTIONNAIRE, JULY 15 1954
County
Non-white
Registrations
reported by
Secretary of State
Non-white
Registrations
reported by
County Supt. of
Registration
1954, 1st Primary
Negro vote as
estimated by
County Supt. of
Registration
1954, 2nd Primary
Negro vote as
estimated by
County Supt. of
Registration
Non-white
Population
1950
Alachua 2,740 2,726 817 914 16,551
Baker 184 187 164 148 1,546
Bay 2,414 2,396 1,026 1,071 7,165
Bradford 684 636 367 413 2,800
Brevard 1,780 1,780 f ? 6,001
Broward 4,337 4,348 1,839 1,656 21,359
Calhoun 136 147 62 58 1,119
Charlotte 237 239 140 119 672
Citrus 486 486 283 248 1,555
Clay 946 968 796 742 2,105
Collier 526 526 319 306 1,986
Columbia 956 986 496 378 6,124
Dade 20,179 20,108 ? ? 65,392
DeSoto 739 739 272 345 2,002
SUM M ARY SHEET OF ATTORNEY GENERAL'S QUESTIONNAIRE. JULY 15. 1954 (Continued)
County
Non-white
Registrations
reported by
Secretary of State
Non-white
Registrations
reported by
County Supt. of
Registration
1954, 1st Primary
Negro vote as
estimated by
County Supt. of
Registration
1954, 2nd Primary
Negro vote as
estimated by
County Supt. of
Registration
Non-white
Population
1950
Dixie 91 91 85 85 562
Duval 25,774 25,817 11,876 10,585 81,840
Escambia 6,545 6,553 1,834 2,096 25,123
Flagler 4 4 2 0 1,534
Franklin 309 309 244 193 1,496
Gadsden 8 8 3 ? 20,468
Gilchrist 10 10 4 4 346
Glades 342 247 107 118 898
Gulf 426 414 284 226 2,007
Hamilton 212 238 150 100 3,790
Hardee 282 282 155 157 750
Hendry 550 551 300 237 1,580
Hernando 420 420 252 252 1,539
Highlands 1,276 1,270 557 613 3,466
182
SUM M ARY SHEET OF ATTORNEY GENERAL'S QUESTIONNAIRE, JULY 15, 1954 (Continued)
County
Non-white
Registrations
reported by
Secretary of State
Non-white
Registrations
reported by
County Supt. of
Registration
1954, 1st Primary
Negro vote as
estimated by
County Supt. of
Registration
1954, 2nd Primary
Negro vote as
estimated by
County Supt. of
Registration
Non-white
Population
1950
Hillsborough. 4,003 4,003 2,400 2,800 38,315
H olm es 145 127 49 58 609
Indian R iver 289 289 112 153 2,962
J ackson 2,310 2,313 1,375 1,375 11,574
Jefferson 141 225 125 75 6,513
Lafayette 0 0 0 0 325
Lake 1,404 1,404 350 200 8,542
Lee 1,430 1,475 313 216 4,694
Leon 4,150 4,013 2,840 2,459 20,381
L evy 358 358 119 119 3,603
Liberty 0 0 0 0 581
M adison 586 585 1 1 6,477
Manatee 1,290 1,250 500 400 7,916
M arion 4,040 4,043 1,474 1,581 14,594
SUM M ARY SHEET OF ATTORNEY GENERAL'S QUESTIONNAIRE, JULY 15. 1954 (Continued)
County
Non-white
Registrations
reported by
Secretary of State
Non-white
Registrations
reported by
County Supt. of
Registration
1954, 1st Primary
Negro vote as
estimated by
County Supt. of
Registration
1954, 2nd Primary
Negro vote as
estimated by
County Supt. of
Registration
Non-white
Population
1950
Martin 516 516 345 310 2,203
Monroe 1,214 1,214 925 596 3,221
Nassau 1,032 4,007
Okaloosa 363 375 187 185 2,198
Okeechobee 291 641
Orange 2,687 2,695 1,139 787 22,766
Osceola 239 239 171 150 1,492
Palm Beach 5,198 5,179 2,043 2,244 34,797
Pasco 633 700 100 75 2,776
Pinellas 3,408 3,426 939 975 18,712
Polk 3,685 3,716 ? ? 25,577
Putnam 1,433 1,433 409 536 8,608
St. Johns 2,515 2,515 785 618 8,327
St. Lucie 1,464 1,476 545 566 6,394
SUM M ARY SHEET OF ATTORNEY GENERAL'S QUESTIONNAIRE, JULY 15, 1954 (Continued)
County
Non-white
Registrations
reported by
Secretary of State
Non-white
Registrations
reported by
County Supt. of
Registration
1954, 1st Primary
Negro vote as
estimated by
County Supt. of
Registration
1954, 2nd Primary
Negro vote as
estimated by
County Supt. of
Registration
Non-white
Population
1950
Santa Rosa 613 613 547 511 1,584
Sarasota 707 639 132 164 4,611
Seminole 1,581 1,624 978 993 11,940
Sumter 520 619 464 464 3,052
Suwannee 438 4,985
Taylor 99 109 0 0 3,181
Union 0 0 0 0 3,231
Volusia 4,537 4,637 2,376 2,358 16,385
Wakulla 139 145 15 22 1,627
Walton 1,721 1,958
Washington 570 581 340 325 2,119
Existing
Public School Facilities
in Florida
...and Factors
of School Administration
and Instructional Services
Affecting Segregation*
The 1950 census revealed that Florida had grown in
population since 1940 more than any state east of the
Eocky Mountains. This rapid growth has probably been
most sharply observable in the public schools. The present
rate of growth in school population from year to year is
about 8 per cent. Present school population for the year
ended June 30, 1954 was 650,285 (507,276 white; 143,009
Negro) up from 603,665 the year before (467,762 white;
135,903 Negro).
There were 81 schools in 18 counties forced to run double
sessions during 1953-54 as against 66 schools in 15 counties
the year previous.
The classroom situation is acute. Although 671 class
rooms were constructed between July 1, 1953 and July 1,
* Prepared by Dr. Robert E. Lee, Florida State Department of
Education, assisted by Thomas N. Morgan, Florida State Depart
ment of Education.
185
1954, bringing existing classrooms up to about 18,000, it
would require 5000 new classrooms this year to eliminate
double sessions, relieve congested classrooms, take care of
expanding enrollment and replace obsolete classrooms
which should be abandoned.
The need for teachers is equally critical. Conservative
estimates place the teacher need for the year 1953-54 at
a figure between 4500 and 5000.
During 1953-54 Florida’s 2212 school buses manned
by 2038 drivers (including 359 Negro drivers) traveled
30,910,944 miles to transport 209,492 pupils at a cost of
$4,506,667. The magnitude of this operation can be more
readily appreciated by comparing it with that of com
mercial bus passenger lines which reveals that in miles
traveled school buses probably equaled or exceeded the
total mileage of all commercial passenger bus lines in the
state in the latest recorded corresponding year.
The total cost of operating Florida’s public schools for
the year 1952-53 is given in Table 1, classified by major
items of expenditure.
The level of support of public education in Florida
underwent a substantial advance with the establishment
of the 1947 Minimum Foundation Program Law. Prior
to that year, the assessed value of property within a
county was the primary determinant of financial support;
since then the extensive tax resources of the entire state
have made possible adequate financial support for the
education of all the children, regardless of location or
color. This structure of school finance can be described
as a partnership between each county and the state,
whereby the county levies taxes according to its financial
ability and the state contributes to each county primarily
on the basis of need. Since 1947 the gaps of inequality
between the races and between rural and metropolitan
areas have been steadily narrowed.
186
Table 2 shows that the pronounced discrepancies be
tween white and Negro salaries existing in 1930 and 1940
were reduced to a difference of 21% in 1947 and only
7.0% in 1952-53. In like manner the percentage of dis
crepancy between Current Expenditure Per Negro Pupil
and Current Expenditure Per White Pupil in 1930-31 was
71%, but by 1952-53 this per pupil dollar expenditure for
Negroes had risen almost tenfold to where the per cent
difference was only 16% less than the corresponding
expenditure for whites.
During the fourth and fifth decade, the majority of
Negro teachers had less than four years college training.
By 1952-53, 94.7% of all Negro teachers compared to
95.6% of all white teachers had at least four years college
training.
Capital Outlay Expenditures have reflected not only the
inflation of enrollment, but the inflation of new residents
and the inflation of construction costs. From 1937 to
1953 Capital Outlay Expenditure for Negroes amounted to
$28,975,000, and for white schools the amount was $129,-
246,000. The total value of public school property in
Florida has been estimated at $300,000,000. Capital Outlay
Expenditures Per Negro Pupil were greater than for whites
in 1952-53 because of greater needs. During the two decades
up to 1947 a limited State Aid Program provided some
financial support without specification as to race. Start
ing in 1947, State Aid under the Minimum Foundation
Program was allocated to the counties in such a way
that no shifting of salary funds from one race to another
could take place. In some counties of Florida, the Expen
ditures Per Negro Pupil are greater than the Expenditures
Per White Pupil. This often happens when the Negro
teachers as a group have either greater training or longer
service than the white teachers.
Florida provides annually $400 per instruction unit for
187
Capital Outlay needs which for the 67 counties totaled
$9,451,600 in 1953-54 and has been computed at $10,199,448
for the 1954-55 estimate. This money is spent in each county
according to the needs recommended by a state conducted
school building survey. With the help of these individual
county surveys it was estimated as of January, 1954 that
$97,000,000 will be needed to provide facilities for white
children and $50,000,000 will be needed to provide facilities
for Negro children. Since the activation as of the effective
date January 1, 1953 of a Constitutional Amendment pro
viding for the issuance of revenue certificates by the State
Board of Education against anticipated state Capital Out
lay funds for the next thirty years more than $43,000,000 in
state guaranteed bonds have been issued to provide addi
tional facilities for both races. By the fall of 1954 there will
have been a total of $70,000,000 of these bonds issued and
in the foreseeable future the total will be $90,000,000 to
$100,000,000. At the present time 2182 classrooms are under
construction as a result of the issuance of these bonds.
The growth of Florida’s school population in the past
five years has far exceeded all expectations and predictions.
The combination of a large birth rate during the latter
forties and a steadily increasing migration rate is reflected
in Table 3.
It is significant that Florida was the only one of the
thirteen southern states to show an increase in the age 10-14
Negro population during the last decade. While the general
pattern in the South during 1940-50 was a migration of
Negroes to the North and West, Florida registered a 2.5%
net migration increase and a natural increase of 14.9%. The
corresponding rate for the white population for this decade
was a net migration increase of 40.6% and a natural in
crease of 16.1%. It is clear then, that Florida’s Negro popu
lation, though increasing in both measures, is actually be
coming a smaller and smaller minority. The per cent of
188
non-white population decreased from 27.2% in 1940 to
21.8% in 1950. As in the other states, a wide range of
concentration is found among the 67 counties of Florida.
The accompanying two maps of Florida counties show the
amount and per cent of non-white population in 1950 and
the distribution of Negro enrollment in 1952-53, and illus
trate the diversity of Florida’s pattern. In only two counties
of North and West Florida do the Negroes outnumber the
whites. In only one county do the Negroes comprise less
than 5% of the county’s population. With the exception of
Jacksonville, the major metropolitan areas are inhabited
by a much smaller proportion of Negroes than the state
average.1
The shifting of Negro population into the southern coastal
counties and into Northeast Florida is contrasted with the
out-migration of Negroes from the West Florida non-urban
counties. Statewide, twenty-seven counties (or 40%) reg
istered actual losses in Negro population from 1940 to 1950;
and the heaviest losers were Dixie (82%), Gilchrist (46%),
and Liberty (37%).
Achievement Test Scores
If a significant difference in preparation and achievement
level exists between white and Negro students, additional
academic problems can be expected in the process of de
segregation. It is not inferred that these differences are
explained by racial differences.
In Florida, the statutes provide 1,050 scholarships of
$400 each for students desiring to train for the teaching
profession. Awarding of the scholarships is done on a basis
1. Dietrich, T. Stanton, Statistical Atlas. Florida’s Population:
1940 and 1950: Research Report No. 3. Fla. State University, June,
1954.
189
of county representation, race, and competitive test scores
of psychological and scholastic aptitude. A compilation of
the scores of the 740 white twelfth grade applicants in the
spring of 1954 yielded an average score of 340. Compilation
of the 488 Negro twelfth grade applicants yielded an aver
age score of 237. In the previous year, 1953, 664 white ap
plicants made a mean score of 342 while the 503 Negro
applicants made an average score of 237. This difference
is classified as very significant and should be interpreted as
meaning that factors other than chance explain the different
results between white and Negro scores.
In addition, a comparison of the performance of white
and Negro high school seniors on a uniform placement-test
battery given each spring in the high schools throughout
the State of Florida is shown in Table 4. The number of
participants corresponds with the total twelfth grade mem
bership during the five-year period, 1949-1953. This table
shows, for example, that on all five tests 59% of the Negroes
rank no higher than the lowest 10% of the whites. On the
general ability scale, the fifty percentile or mid-point on the
white scale corresponds with the ninety-five percentile of
the Negro scale. In other words, only 5% of the Negroes
are above the mid-point of the white general ability level.
Studies of grades at the University of Florida indicate
that white high school seniors with placement test per
centile ranks below fifty have less than a 50% likelihood of
making satisfactory grades in college. While factors such
as size of high school, adequacy of materials, economic level,
and home environment are recognized as being contributing
factors, no attempt is made here to analyze or measure the
controlling factors.
190
Counties With No Negro High Schools
An examination of facilities provided by the sixty-seven
counties reveals that no senior high schooling was offered
for Negroes in eight counties in 1953. Transportation to an
adjacent county high school is provided in each county. In
six of these eight counties the membership available for a
7-12 grade high school is less than seventy-five.
Table 5 shows the estimated number of Negroes eligible
for grades 7-12, the number and organization of white high
schools, the white average daily membership, the full ca
pacity of the high schools, and the possible space available.
If the ban on Negro pupils were lifted, space would be
available in six of these eight counties.
Examples of Inter-Racial Cooperation
The tradition of separate schools for Negro children has
in effect separated the Negro teachers from association with
white teachers. Until recent years, duplicate meetings of
teachers during prp-school conferences were held in every
county. When specialists and consultants were brought into
the county to improve instruction, two presentations instead
of one had to be made. Considering the growing demands
for efficiency and effective administration that were pro
mulgated by the 1947 Minimum Foundation Program, the
administrations in several counties have found it advan
tageous to schedule a single program of activities during
the two week pre-school conference period for instruction
personnel. Collier, Monroe, Sarasota, Hardee, and Dixie are
counties that have already combined the races for pre
school conferences. This action, it might be noted, has
been carried out as a result of voluntary local level initia
tive without any directive or suggestion from the state
administration.
191
There are other examples of inter-racial cooperation at
the county level. In Dade and Duval Counties, Negro super
visory personnel have offices in the same building as their
fellow professional staff members. In a number of counties,
including Santa Rosa, Leon, Sarasota, Pinellas, Hillsbor
ough, and Hernando, regular principals’ meetings are held
without regard to race. Negro representatives have partici
pated in the County PTA Council in Hillsborough County.
In many counties the development of a Parent Teacher As
sociation in Negro schools has been possible as a result of
the personal interest and sponsorship of white PTA leaders.
Invitations to be guests and speakers at PTA meetings have
not been entirely unilateral.
The State Department of Education has Negro consult
ants, and staff and division meetings are held at regular
intervals in the Capitol with no distinction as to race.
The members of the Florida Resource Use Education
Committee are appointed by the Governor and include both
races. The purpose of the committee is to promote instruc
tion in the wide use and development of the natural re
sources in our community, state, and nation.
The Florida Council on Elementary Education and the
Florida Council on Secondary Education are each composed
of professional educators in Florida and have representa
tion from both races. Membership is by appointment of the
State Superintendent of Public Instruction and the purpose
of each Council is to conduct studies which will make pos
sible the continued improvement of the school’s product.
For the past two years, a week-long Negro Principal’s
Work Conference has taken place at Bethune-Cookman
College with a participation of more than half of all Negro
Principals. Speakers, consultants, and specialists were
largely drawn from white educators in Florida.
The examples of normal association between the races
192
cited herewith are confined largely to professional edu-
-ators and those citizens deeply concerned about public
education.
TABLE 1
SUMMARY OF EXPENDITURES— ALL
BOTH RACES, 1952-53
General Control
Instruction
Operation of Plant
Maintenance
Auxiliary Agencies
Fixed Charges
Current Expenses (Day Schools)
Other Schools
Total Current Expenses (All Schools)
Capital Outlay
Debt Service
Total Expenditures (All Funds)
FUNDS—
$ 2,367,825.41
78,233,563.93
6,540,853.16
4,031,471.75
6,585,529.70
2,810,762.18
100,570,006.13
1,527,768.39
102,097,774.52
28,013,835.59
8,783,513.04
$138,895,123.15
193
TABLE 2
SIGNIFICANT TRENDS IN THE GROWTH OF FLORIDA
SCHOOLS UNDER DUAL SYSTEM OF EDUCATION
1930 TO 1953
1930-31 1940-41 1947-48 1952-53
Average Daily
Attendance:
White 203,002 240,388 272,084 380,800
Negro 74,785 87,570. 96,503 118,162
Average Annual
Salary:
White $907 $1,202 $2,770 $3,457
Negro 403 605 2,191 3,215
Teacher Preparation
(Per Cent Pour
Years or M ore):
White 38.81% 61.48% 76.72% 95.62 %
Negro 15.18 31.90 62.53 94.74
Current Expenses
Per Pupil in
ADA (All Funds):
White $61.26 $72.40 $175.14 $209.42
Negro 17.91 28.80 110.39 176.24
Capital Outlay Per
Pupil in ADA
(All Funds):
White $3.12 $7.36 $42.60 $54.92
Negro 0.35 0.57 10.65 60.09
State Aid Per
Pupil in ADA:
Both Races $15.28 $39.60 $106.70 $123.39
194
TABLE 3
ENROLLMENT
(Includes Kindergarten and Junior Colleges)
Year White Negro Total
1953-54 507,276 143,009 650,285
1952-53 467,762 135,903 603,665
1951-52 428,405 129,695 558,100
1950-51 401,083 126,091 527,174
1949-50 375,295 120,368 495,663
The over-all rate of growth during the past two years has been
more than 8 % ; (9% for white pupils; 5% for Negro pupils.)
195
hite
;ile
7 ) 1
05
10
20
30
40
50
60
70
80
90
95
TABLE 4
OF PERCENTILE RANKS FOR WHITE AND NEGRO EXAMINEES IN THE FLORIDA
E TWELFTH-GRADE TESTING PROGRAM SPRING 1949 THROUGH SPRING 1953
Corresponding Percentile Rank for Negroes
Psychological
(General Ability)
English Social
Studies
Natural
Science
Mathe
matics
All Five
Tests
31.4 18.8 15.6 11.2 09.8 17.36
57.4 50.4 44.8 32.4 33.0 43.60
70.8 67.4 60.4 50.0 46.8 59.08
82.8 81.6 78.4 69.8 67.2 75.96
88.6 88.6 86.4 80.2 79.2 84.60
92.6 93.0 91.4 87.8 86.2 90.20
95.4 95.6 94.4 92.4 90.6 93.68
97.2 97.0 96.4 95.0 94.4 96.00
98.2 98.0 97.6 97.0 96.4 97.44
98.75 99.0 98.6 98.4 97.25 98.40
99.0 99.0 98.5 98.5 98.75
99.0 99.0 99.0
Tested: White— 69,909
Negro—10,675
TABLE 5
COUNTIES W ITH NO NEGRO HIG H SCHOOL — 1952-53
County N E G R O
Elem. ADM
(1-6)
Est. 7-12
ADM Based on
Ratio of .50
1. Baker 288 144
2. Charlotte 70 35
3. Dixie 68 34
4. Glades 102 51
5. Hardee 136 68
6. Holmes 104 52
7. Lafayette 42 21
8. Union Co. Hi. 230 115
No. and
Grade of
Hi School
W H I T
ADM
(7-12)
E
Capacity
Space
Available
3(1-12) 499 6601 161
1(1-12) 234 3001 66
1(7-12) 300 3301 2 30
1(1-12) 119 180 61
1(9-12) 803 890 87
4(1-12) 1222 1080 • •••
1(7-12) 283 C
O
C
O o 47
1(1-12) 255 280 25
1. Allows 60 additional capacity for Homemaking, Science, Agriculture, and Physical Education facilities.
2. Allows 90 additional capacity for Agriculture, Science, Homemaking and Gymnasium facilities.
TABLE 6
STATUS OF ELEMENTARY PRINCIPALS* 1953-54
(Percentage)
Male
W N
Female
W N
Training
Rank I 9.60 6.19
Rank II 68.80 46.15 55.75 46.90
Rank III 20.00 51.30 36.28 53.12
No Information 1.60 2.60 1.76
Number 125 39 226 32
Years as
Principal
0 1.60 .90 t
1 - 5 45.60 30.80 31.85 25.00
6 -10 17.60 33.33 22.12 21.90
11-15 12.80 15.40 16.81 18.80
16-20 8.00 15.40 8.84 15.62
21-25 4.80 2.60 8.84 3.12
26-Over 9.60 2.60 9.73 15.62
No Information .90
Number 125 39 226 32
Salary
10 Months
(Dollars)
2500-2999 1.60 2.60
3000-3499 .80 17.94 1.32
3500-3999 9.60 17.94 3.53 12.50
4000-4499 19.20 15.40 18.60 18.80
4500-4999 12.80 10.25 22.12 25.00
5000-5499 20.80 17.94 28.80 12.50
5500-5999 16.80 10.25 11.06 12.50
*Not Applicable
(12 mos.) 16.80 5.12 10.61 18.80
No Information 1.60 2.60 4.00
Number 125 39 226 32
* Compiled by Sara DeKeni, School of Education, Florida State
University.
198
toomit of Population
Non-white: 1950
o-k, 91.9 L * .* .* 'J
■i,950-9,9>*9
9,950-19 , 91*9 f c l S x f l
COPYRIGHT, 1954
T. STANTON DIETRICH
A M O U N T ar
of N O N W H IT E PC
State 605,2
199
PROPORTION OF NEGRO
ENROLLMENT TO TOTAL
ENROLLMENT BY COUNTIES
1 9 5 2 - 5 3
40 .0%-65.5%
25 .0%-39 .9%
15.0% - 24 .9%
3 .5 % - 14.9 %
20 0
An Intensive
Study
in Dade County
and Nearby
Agricultural Areas
...and Conclusions*
GENERAL CONCLUSIONS
A majority of those polled believed that most of the
white population of Dade County are opposed to the Court’s
decision as a matter of principle. There seems to be rea
son to believe, however, because of the relative lack of dis
cussion about the decision and its attendant problems and
of the calm acceptance of the decision itself that the atti
tude on the part of many is not a deep-seated, emotionally
formed one. I f the process of integration is handled grad
ually (after a few years of preparation) and wisely and
with firm leadership, a very large majority of this group
will abide by the decision. The distinct possibility remains
that many of this group with loosely formed convictions
can be driven into active opposition by early and abrupt
transition.
Some reluctance has been noted on the part of the School
Board and other public officials to plan and lead, and on the
* Prepared by Dr. D. R. Larson, Dr. Edward Sofen, and Dr. T. J.
Wood, Government Department, University of Miami.
201
part of the newspapers to encourage the same. The problem
of obtaining leadership outside official circles for the tran
sitional steps will be made more difficult by the tendency or
perhaps organized campaign of the more violent pro-seg
regationists to identify such leadership with the Communist
Party. On the other hand, a number of ministers have in
dicated that they will advise their congregations to follow
the Court’s decision.
Virtually complete agreement exists among those polled
as to the most explosive area— the northwest section of the
county which is low in the white socio-economic strata and
which contains the greatest percentage of southern-born
whites. The elected officials foresaw the next greatest
amount of trouble (although not violent in nature) from
those communities such as Coral Gables and Miami Shores
which are high on the socio-economic scale. Community
leaders, the teachers, newsmen, police and labor leaders
failed to mention this in any significant numbers; this fail
ure may be explained in part by disposition to think of
difficulties only in terms of violence.
Almost all elected officials, journalists, police chiefs and
labor leaders agreed that serious violence in several areas
was inevitable if large-scale integration were to be at
tempted within the next year or two; such violence would
be perpetrated by a small segment of the population and
would take the form of the bombing of homes, hit-and-run
shooting and individual beatings rather than lynchings
and other more openly organized activities. Among the
community leaders there was less unanimity, although a
majority expects violence in some form in the most difficult
areas.
Roughly half of the above categories of interviewees be
lieved that some scattered violence was inevitable no mat
ter how slowly the integration was accomplished. Only
202
33% of the teachers expect violence under such circum
stances.
These same categories thought that boycotts in all parts
of the County were inevitable whenever integration was
undertaken but few estimates were made of their dimen
sions. A substantial move toward private schools among
the well-to-do was agreed upon. There was a marked ab
sence of mention of the Byrnes-Talmadge Plan of removing
the state’s direct connection with education; only a few
of those who expressed personal opposition to the decision
thought that this was a practical solution.
The consensus of the various categories of whites polled
with regard to the attitude of the Negro population on the
timing of integration is that a gradual approach over a
period of several years is desired. Although Negro school
teachers are not a representative cross-section of the Ne
gro population, it should be noted that by an extremely
large majority they wanted speedier integration and that
they reported, although by a smaller majority, that their
students agreed.
The small sampling of Negro leaders indicates that most
of the hitherto effective Negro leaders are prepared not to
demand, by means of suits or otherwise, immediate action
if there is indication on the part of the state and local of
ficials that they are planning in good faith and with rea
sonable promptitude the method of implementation decreed
by the Supreme Court.
Although no such specific question was posed, significant
numbers in all categories minimized the difficulties that
might arise among the younger children; but it was rec
ognized that violent parental attitudes might change the
situation radically. At the same time the belief was widely
expressed that social activities in junior and senior high
schools would give rise to considerably more trouble, if
203
not among the students, then certainly among the parents.
Any consideration of a scheme to initiate integration in the
first grade would be forced to take into account the fact
that among the white teachers polled the first grade teach
ers were most resistant to the idea of integration.
The two special agricultural areas checked must be con
sidered a problem of an entirely different order owing to
the high concentration of Negroes, the Negroes ’ low socio
economic status, and the relative absence of whites drawn
from northern metropolitan areas. The feeling against the
Negro, particularly in one of these areas is more intense
and more structured than that in the Greater Miami area.
Factors Indicating a Gradual Approach
as the Solution to this Problem
1. Despite the fact that a majority of the white population
of Dade County is opposed to the Court decision as a mat
ter of principle, they nevertheless indicate that they will
abide by the decision if integration is handled gradually,
with an adequate period of preparation.
2. The present reluctance to assume positive leadership
on the part of public officials and of any substantial num
ber of groups outside official circles indicates great diffi
culty if an attempt is made to move too quickly.
3. A general belief exists that serious violence will occur
if the decision is pushed by any minority group, white or
colored.
4. A similar belief that some violence is inevitable no mat
ter how gradual the transition, but with a firm belief that
the more gradual the transition the more moderate and less
frequent would be the outbreaks of violence.
5. In spite of some interracial activity among school per
sonnel, it is a fact that Negro and white teachers have
204
never met together in Dade County—not even for ‘ ‘ Fellow
ship Day.” Interracial cooperation through joint activity
would seem to be a must before school integration could
be put into operation.
6. Many leaders interviewed agreed that if the NAACP,
or any other organized groups, should seek to push the de
cision by test cases this fall immeasurable harm would be
done to the entire cause of the integration of the schools.
7. With a majority of white population disagreeing with
the Supreme Court’s decision in principle, a state legislator
was, without question, correct when he said that what is
needed is a “ mental change” in the community. Such
changes obviously require time.
8. A small minority in the Negro community, without ques
tion, opposes integration in the schools. Others who strong
ly favor the decision in principle are concerned about the
practical problems of the decision as it affects Negroes. A
gradual solution would thus ease the tension experienced
by both these groups of Negroes.
9. A sizeable percentage of the Negro leadership group
checked stated that they believe a gradual approach is best.
They would accept this gradual approach as long as the
white community acts in good faith and with reasonable
speed toward a solution.
10. Research indicates that in the two special South Florida
agricultural areas checked the problems of community ac
ceptance and general leadership make the problem of inte
gration even more difficult than in the metropolitan area,
and thus these two sections must be granted an opportunity
to proceed more slowly and perhaps in an entirely different
manner. 11
11. The greatest difficulty in integration would probably
be caused at the junior and senior high school levels due to
205
social activities and athletic and other extracurricular
events. Time allowed for preparation for integration would
permit the gradual use of non-social, extracurricular ac
tivities as a way of preparing students for eventual school
integration.
12. Up to 60% of the white teachers polled favored a long
transitional period, and another 20-30% favor at least a one
or two year period of adjustment.
13. The School Board and top school administrative per
sonnel in the school system have given little attention to
the problems raised by the decision and would require time
to simply handle the mechanical problems involved in the
transition. It would also give these groups time to develop
positive leadership which will be required for a peaceful
and smooth transition.
14. The need for careful preparation in the process of
integration was urged again and again by all groups polled.
It is agreed that leadership and proper educational prep
aration will be all-important in a transition of this nature.
Both require time for full development.
206
Acknowledgments
To complete a survey of the scope of this Study of the Prob
lems of School Desegregation in Florida in less than three months
was a task demanding the utmost effort on the part of many
people. The time-table during the entire period of the research
was such that a delay or a mistake in even the simplest task could
prove disastrous. It is a tribute to the untiring diligence of
everyone connected with the project that no such disaster oc
curred, and acknowledgment of their separate contributions is
highly appropriate.
At all stages of the research, the members of the Research
Advisory Committee, all of them busy with important duties,
contributed of their time and their best thinking to make this
a sound piece of research. The committee included:
Mr. Richard W. Ervin, Attorney General (Ex Officio)
Mr. Thos. D. Bailey, State Superintendent of Public Instruc
tion (Ex Officio)
Mr. Ralph E. Odum, Assistant Attorney General
Dr. Ralph Eyman, Dean, School of Education, Florida State
University
Dr. Sara Lou Hammond, School of Education, Florida State
University
Mr. Robert Gates, Department of Education
Dr. Robert E. Lee, Department of Education
Mr. Ed Henderson, Executive Secretary, Florida Education
Association
Dr. Gilbert Porter, Executive Secretary, Florida State Teach
ers Association
Dr. J. B. White, Dean, School of Education, University of
Florida
Dr. Manning J. Dauer, Department of Political Science, Uni
versity of Florida
Dr. Don Larson, Department of Political Science, University
of Miami
Dr. George Gore, President, Florida Agricultural and Me
chanical University
Mr. Angus Laird, Director, State Merit System
Dr. Richard Moore, President, Bethune-Cookman College
Dr. R. L. Johns, School of Education, University of Florida
207
Dr. Mode Stone, School of Education, Florida State University
Mr. D. E. Williams, Department of Education
Dr. T. J. Wood, Department of Political Science, Univer
sity of Miami
Dr. Lewis M. Killian, Department of Sociology, Florida State
University (Coordinator of Research)
Some members of the committee made further contributions to
the study. Dr. Larson and Dr. Lee prepared reports which con
stitute important subsections of the study, and Dr. Dauer prepared
an independent report on the experience of other states with
desegregation. Dean Eyman, Dean White and President Gore, as
well as President Doak S. Campbell, of The Florida State Uni
versity, released much-needed members of their staffs to assist
in the research at various times. Dr. Robert Gates was a constant
source of advice and support to the Coordinator.
A special debt is owed to Mrs. Fay-Tyler M. Norton, who
served as Assistant Coordinator and Statistical Consultant for
the entire period of the research. Her contribution was far greater
than the tasks called for in her contract with the Committee, and
without her the study could not have been completed.
Dr. J. A. Norton and Dr. Malcolm Parsons, of the School of
Public Administration, the Florida State University, conducted
the study of Negro voting registration while carrying full teach
ing loads at the University, but with no additional compensation.
Voluntarily making a vital contribution, as a public service,
were Prof. Robert McGinnis and Dr. John Haer of the Sociology
Research Laboratory, the Florida State University. Under their
direction the laborious task of punching both the questionnaire
and the interview data on IBM cards and tabulating these data
was carried out.
The field interviewers who worked in ten selected counties, all
public school workers drawn away from other important duties
and asked to work without personal compensation, revealed a fine
sense of duty. The manner in which they carried out their
important part of the study indicates that they were well chosen.
These interviewers are:
Edwin G. Artest, Tampa
Henry W. Bishop, Gainesville
Mrs. Patricia Carter, Gainesville
John B. Cox, Tampa
Paul F. Davis, Bradenton
Thomas J. Hill, Gainesville
Leroy G. Hooks, Clearwater
208
Elton L. Jones, Ocala
R. LeEoy Lastinger, Bartow
Mills Lord, Orlando
Julian E. Markham, Sebring
Thord Marshall, Tallahassee
William J. McEntee, Gainesville
Erby Nixon, Panama City
Willie J. Reid, Pensacola
C. C. Washington, Panama City
At a critical point in the study, a small team of workers was
called upon to put forth an almost impossible effort in coding
a large mass of interview data just received from the field. At
great personal sacrifice, they rose to this demand, completing the
task in an incredibly short time. One member of this team, Dr.
C. U. Smith, of Florida A. and M. University, had already made
an important contribution in helping to brief the interviewers
before they went into the field. The team of analysts included,
in addition to Dr. Smith, the Coordinator of Research, and Mrs.
Norton, the following people:
Mr. Robert Gates, State Department of Education
Dr. Robert E. Lee, State Department of Education
Mr. James Condell, Florida A. and M. University
Dr. Henry Cobb, Florida A. and M. University
Mr. Henry Warner, Florida A. and M. University
Mrs. Lillian Walker and Miss Winifred Hitching, of the Office
of the Attorney General, shouldered without complaint the addi
tional burden of the major part of the clerical and accounting
work incidental to such a comprehensive study. Their contribu
tions were just as vital as those of any of the professional research
staff.
Working far harder than they may have expected to when
they accepted summer employment, the following young ladies
in the Office of the Attorney General did a vast amount of
detailed and often dull clerical work for which the research staff
is indebted. It is entirely fitting that the youth of Florida should
have played a significant part in this public service. These young
ladies, all high school or college students, are:
Miss Kathleen Kirk
Miss Maribelle Garris
Miss Pat Gunn
Miss Sonya Fletcher
Miss Bessie Carol Johnson
Miss Barbara Curtis
Miss June Lasseter
209
A key figure in this project from the moment of its inception
has been Mr. Ralph Odum, Assistant to the Attorney General.
In addition to expediting the work of the professional research
staff, he has contributed his sound thinking to every phase of
the study.
Finally, the Committee is deeply indebted to Attorney General
Ervin, Superintendent Bailey, and their colleagues of the State
Cabinet for making it possible for us to apply our knowledge and
skills, as educators and scientists, to the study of this momentous
problem.
Lewis M. Killian
Coordinator of Research
210
(Appendix B)
Examples of Florida’s Constitutional,
Statutory and State School Board
Regulatory Provisions Relating to
Segregation
211
Florida Constitution
Article XII, Section 1:
Uniform, system, of public free schools.—The Legislature
shall provide for a uniform system of public free schools,
and shall provide for the liberal maintenance of the same.
Article XII, Section 12:
White and colored; separate schools.—White and colored
children shall not be taught in the same school, but im
partial provision shall be made for both.
213
Florida Statutes
228.09 Separate schools for white and negro children re-
quired.—The schools for white children and the schools
for negro children shall be conducted separately. No in
dividual, body of individuals, corporation, or association
shall conduct within this state any school of any grade
(public, private, or parochial) wherein white persons and
negroes are instructed or boarded in the same building
or taught in the same classes or at the same time by the
same teachers.
229.07 General powers of state board.—Except as limited
in the school code, the state board shall have the authority,
and when necessary for the more efficient and adequate op
eration of the state system of public education in carrying
out the purposes and objectives of the school code, the state
board shall exercise the following general powers:
(1) DETERMINE POLICIES.— The state board shall de
termine and adopt such policies as are required by law and
as in the opinion of the state board are necessary for the
more efficient operation of any phase of public education.
* # # #
(3) PRESCRIBE MINIMUM STANDARDS.—Whenever
the establishment of minimum standards will aid in provid
ing adequate educational opportunities and facilities, the
state board shall adopt such minimum standards for any
phase of education as are considered desirable by it in
carrying out the provisions of the school code.
215
229.08 Duties and responsibilities of state board.—It shall
be the responsibility of the state board to exercise all powers
and perform all duties prescribed below:
# # * #
(20) PRESCRIBE MINIMUM STANDARDS AND
RULES AND REGULATIONS.—To prescribe such mini
mum standards and rules and regulations as are required by
law or as are recommended by the state superintendent in
accordance with the provisions of subsection (20), §229.17,
and as it may find desirable to aid in carrying out the
purposes and objectives of the school code.
# # # #
(23) OTHER RESPONSIBILITIES. — To assume such
other responsibilities and to exercise such other powers and
perform such other duties as may be assigned to it by law
or as it may find necessary to aid in carrying out the
purposes and objectives of the school code.
229.16 General powers of state superintendent.—The state
superintendent shall have the authority, and when necessary
for the more efficient and adequate operation of the state
system of public education in carrying out the purposes and
objectives of the school code, the state superintendent shall
exercise the following general powers:
# * # *
(5) RECOMMEND AND PUT INTO EFFECT MINI
MUM STANDARDS.—From time to time to prepare, or
ganize by subjects, and submit to the state board for adop
tion such minimum standards relating to the operation of
any phase of the state system of public education as, in his
opinion, will aid in assuring more adequate educational op
portunities for all, and to see, insofar as practicable, that
such minimum standards as are adopted by the state hoard
are put into effect and are properly observed.
216
229.17 Duties and responsibilities of state superintendent.
—It shall be the responsibility of the state superintendent
to exercise all powers and perform all duties prescribed
below; provided, that in those fields in which policies are
required by law to be approved by the state board the state
superintendent shall act as the advisor and executive officer
of the state board.
* # # *
(20) MINIMUM STANDARDS AND RULES AND REG
ULATIONS.— To prepare, organize, and recommend to the
state board such minimum standards and rules and regula
tions in the following fields as are required by law or as he
may find necessary to aid in carrying out the purposes and
objectives of the school code; and to execute such standards
and rules and regulations as are adopted by the state board
in the following fields: (1) establishment, organization, and
operation of schools, agencies, services, and institutions, in
cluding the classification or accreditation of parochial, de
nominational, and private schools; (2) personnel; (3) child
welfare; (4) courses of study and instructional aids; (5)
transportation; (6) school plant; (7) finance; (8) records
and reports.
# # # #
(28) OTHER RESPONSIBILITIES. — To assume such
other responsibilities and to perform such other duties as
may be assigned to him by law or as may be deemed by him
to be necessary to aid in the more efficient operation of the
state system of public education in carrying out the purposes
and objectives of the school code.
230.23 Powers and duties of county boaxd.—The county
board acting as a board shall exercise all powers and per
form all duties listed below:
* # # #
(6) ESTABLISHMENT, ORGANIZATION, AND OP
ERATION OF SCHOOLS.—Adopt and provide for the ex
217
ecution of plans for the establishment, organization, and
operation of the schools of the county, as follows:
(a) Schools and attendance areas.—Authorize schools to
be located and maintained in those communities in the
county where they are needed to accommodate as far as
practicable and without unnecessary expense all the youth
who should be entitled to the facilities of such schools,
separate schools to be provided for white and negro chil
dren; and approve the area from which children are to
attend each such school, such area to be known as the at
tendance area for that school; provided, that only under
exceptional circumstances as defined under regulations of
the state hoard may an elementary school be located within
four miles of another elementary school and a high school
within ten miles of another high school in rural areas for
children of the same race.
239.41 Value of general scholarships.—Each scholarship
for the preparation of teachers shall have a value of four
hundred ($400.00) dollars each year and shall be awarded
in the following manner:
# * # *
(2) In accordance with these requirements, the princi
pals and county superintendents of each county shall select
and recommend, on the basis of merit, a number of high
school graduates who are bona fide residents of the State
of Florida, as defined in section 97.041, Florida Statutes,
which shall be proportionate to the white or Negro popula
tion in the county and who are interested in teaching and
whose work and qualifications are such as to indicate that
they possess the qualities which should be possessed by
a successful teacher; provided that each county shall have
at least one scholarship for a Negro student.
218
State School Board Regulations
Adopted April 27, 1954
Section 236.04 (10)
State Board Regulation,
relating to
THE CALCULATION OF INSTRUCTION UNITS AND
SALARY ALLOCATIONS FROM THE
FOUNDATION PROGRAM
(Repealing regulation adopted June 16, 1953)
Instruction units and salary allotments from the Founda
tion Program will be calculated separately for white and
Negro schools.
No county will receive a greater allotment for salaries
for either race than the salaries actually paid the teachers
of that race or the calculated amount for that race based on
instruction units and training, whichever amount is smaller.
In applying the provisions of Section 236.04 (10), provid
ing that 95% of instructional units allocated to a county
must be filled, the units calculated for each race will he
considered separately, and 95% of the instructional units
for each race must he filled.
219
Adopted March 21, 1950
Section 236.04 (7)
State Board Regulation
relating to
ADMINISTRATIVE AND SPECIAL INSTRUCTIONAL
SERVICE
(Adopted in accordance with the provisions of Section
236.04 (7), Chapter 23726, Laws of Florida,
Acts of 1947)
1. Eleventh and Twelfth Month Personnel.
Each county superintendent shall file with the State Super
intendent on or before May 15 of each year Form A for
the use of its administrative and special instructional serv
ice personnel. In addition, the county superintendent shall
file a plan for the 11th and 12th month program which in
cludes for each race the title and duties assigned for each
such unit. Any revision in the plan submitted must he
approved by the State Department of Education.
On or before October 1, each county superintendent shall
file with the State Superintendent a complete description
of the program which operated during the 11th and 12th
months, including for each race the title, name, certificate
number, rank and duties of each person employed through
the use of administrative and special instructional service
units.
Ten Months Personnel.
On or before August 15 of each year the county superin
tendent shall file with the State Superintendent a plan for
use of ten months personnel service units (Form C) which
includes for each race the title and duties assigned for each
such unit together with name, certificate number, and rank
of the individual filling the position. Any proposed revision
220
in plans for use of ten months personnel shall be submitted
by January 15 of each year.
2. Any administrative and special instructional service
units to which a county is entitled under Section 236.04 (7),
Chapter 23726, Laws of Florida, Acts of 1947, which is not
used in accordance with regulations prescribed by the State
Board of Education shall be deducted either in the current
or the succeeding fiscal year as provided in Section 236.07
(9-e), Chapter 23726, Laws of Florida, Acts of 1947.
Adopted March 21, 1950
Section 236.04 (8)
State Board Regulation
relating to
UNITS FOR SUPERVISORS OF INSTRUCTION
(Adopted in accordance with the provisions of Section
236.04 (8), Florida Statutes as amended by Section 29 of
Chapter 23726, Laws of Florida, Acts of 1947) 1
1. Application for Instruction Units for Supervisors.
a. Each County Board shall file through the County Super
intendent an application for using instruction units for
supervision. This application shall be filed on forms pro
vided by the State Superintendent on or before May 15 of
each year.
b. Approval of any application for instruction units for
supervision may be given by the State Superintendent when
a satisfactory administrative plan for the use of such units
(or desirable modification of the initial plan submitted)
shall have been developed and approved jointly by the
County Superintendent and the State Superintendent which
will insure the most effective and economical expenditure
of funds. Application for use of state funds for supervisory
221
services must include: first, provision for general super
vision over the common branches of study in all the ele
mentary and secondary grades. Included as a part of the
administrative plan for supervision prescribed above, the
County Superintendent shall file brief statements outlining
(1) the duties to be performed by the supervisor(s ) ; (2)
the total annual salary and number of months of employ
ment (in case of a general supervisor(s) this must be
twelve months and of special supervisor(s) at least ten
months; (3) the amount to be paid for travel; (4) the
qualifications of the supervisor who is to he employed.
c. Instruction units for supervisory purposes may be tenta
tively allocated if the administrative plan for the use of
such units required in the preceding section is satisfactory,
even though the nomination of the person(s) to fill the
supervisory position(s) is pending.
2. Administrative Plan for Employment of Supervisory
Personnel.
In arriving at a satisfactory plan for supervision in any
county, the County Superintendent and the State Super
intendent shall select one of the following plans which best
fits the needs of the county involved:
a. Single-County Plan
(1) For General Supervision
(a) The instruction unit to which each county is entitled
for the employment of a general supervisor may be used
for the employment of one person who will have general
supervision of white and Negro schools.
(b) The additional instruction units available for super
vision, if any, may be used for the employment of separate
general supervisors for white and Negro schools, or for
some area or special supervisors.
(c) In counties earning fifty teacher units or less, one
222
person may be employed to perform the functions of both
supervisor of instruction and supervising principal of a
school center.
Any person employed as combined general supervisor and
supervising principal must be properly certificated for both
positions, i.e., bold a Rank II or higher certificate covering
both elementary and secondary administration and super
vision.
(2) For Special Subject or Field Supervision
(a) Counties entitled to supervisory units in addition to
the one reserved for general supervision may use such
extra units for employment of additional supervisors, pro
vided, one supervisor shall be employed for each of the
units used and provided further that not more than one
supervisor in any special subject field may be employed in
a county.
b. Joint-County Plan
(1) For Counties Having Not More Than One Supervisory
Unit:
Any two or three contiguous counties entitled to not more
than one unit each for supervision may submit a coopera
tive proposal for the joint employment of a supervisor or
supervisors in accordance with one or more of the following
plans:
(a) Cooperative Plan for General Supervision
Such counties may employ jointly one general supervisor
for work with both white and Negro schools; or may employ
separate general supervisors for white and Negro schools,
provided the cooperative arrangement would not result in
any general supervisor’s carrying a total load of over 75
teachers.
(b) Cooperative Plan for Special Subject or Field Super
vision
223
After providing for general supervisors, counties may use
the remaining supervisory units to which they may be en
titled for the purpose of cooperatively employing super
visors in special area or subject fields, provided that not
more than one unit from any individual county may be
so used for employment of any one supervisor.
(c) Cooperative Plan for School Lunch Supervision
In counties having less than ten school lunch programs, the
plan for supervision may be as follows:
Two or three counties may employ a school lunch supervisor
on a joint county plan provided that no school lunch super
visor may be responsible for more than thirty school lunch
programs.
(2) For Counties Having More Than One Supervisory Unit
After providing independently for general supervision, such
counties may use supervisory units beyond the first unit for
cooperative employment of special supervisors in accord
ance with section 2 -b -(l)-(b ) above.
3. Salaries and Travel Expense of Supervisors.
a. Supervisors shall be paid the basic salary schedule of
the county for teachers based upon training, experience, and
employment on either a ten or twelve months basis plus an
appropriate supplement in keeping with the duties and
responsibilities of the position.
b. The amount to be paid to the supervisor for travel must
be adequate in tqrms of the territory and number of schools
to be served and shall be fixed by the County Board of
Public Instruction in accordance with the joint recom
mendation of the County Superintendent and the State
Superintendent.
224
Adopted May 29, 1951
Section 230.23 (6)
State Board Regulation
relating to
ESTABLISHMENT, ORGANIZATION AND
OPERATION OF SMALL SCHOOLS
(Repealing Regulation adopted March 21, 1950, page 24)
!• No school with an average daily attendance of less than
ten pupils in the elementary, junior or senior high school
grades may be continued in operation through the use of
Minimum Foundation Program funds except when such
school is so isolated that transportation of the pupils to an
other school would not be feasible because of distance, road
conditions, or excessive expense, or except when pupils
cannot be provided with equivalent or better educational
facilities in another school. I f a school is to be operated
as an isolated school, an application for such operation must
be filed with the State Superintendent at least one month
before any Minimum Foundation Program funds may be
used for the school, giving all facts which may be required
as a basis for approval. Approval for the operation of an
isolated school will be granted by the State Superintendent
of Public Instruction only after consideration of all the
facts.
225
Adopted July 3, 1947
Section 230.34 (8)
State Board Regulation
relating to
SCHOOL ADVISORY COMMITTEES
(Adopted in accordance with the provisions of section
230.34 (8), Chapter 23726, Laws of Florida, Acts of 1947)
If the county board of a county exercises its discretion and
determines to set up School Advisory Committees, the
following regulations shall apply:
1. The county may be divided into school community areas
for each race in accordance with the attendance areas for
each school community for each race, or the Board may
divide the county into school community areas which areas
encompass the schools for both races.
2. Members of the School Advisory Committee may be
selected for any school community area by either of the
following methods as may be determined by the county
hoard:
a. The Board may provide for the selection of members of
the School Advisory Committee at a community meeting
called in each school community area at the place desig
nated by the Board of Public Instruction; the hour, the date
and place of such meeting to be advertised at least once, at
least one week before the meeting in a paper published in
the county or in some paper of general circulation in the
county.
b. The School Advisory Committee may be appointed by
the school board either from lists submitted by a community
meeting or directly by the board.
3. I f the Board determines that the School Advisory Corn-
226
mittee shall be selected at a community meeting called in
the school community area as prescribed above, parents or
guardians of children attending school in the school
community area and adult residents of such area shall
be entitled to vote for members of the School Advisory
Committee.
4. Any adult residing in a school community area is
eligible to he selected as a member of the School Advisory
Committee.
5. If the Board determines to select School Advisory Com
mittees by the community meeting method, the Board shall
determine the time, place, and hour of the meeting but the
date selected must be between September 1 and December
31 preceding the January 1 on which School Advisory
Committees take office.
6. The members of the School Advisory Committee shall
exercise and perform such duties as are prescribed in
Section 230.34 (8) of Chapter 23726, Laws of Florida,
Acts of 1947.
7. The supervising principal or principal shall serve as
secretary of the School Advisory Committee.
227
Adopted March 21, 1950
Section 236.02 (4)
State Board Regulation
relating to
QUALIFICATIONS, DUTIES AND PROCEDURE FOR
EMPLOYMENT OF SUPERVISORS OF INSTRUCTION
(Adopted in accordance with the provisions of Section
236.02 (4), Chapter 23726, Laws of Florida, Acts of 1947)
1. Types and Qualifications of Supervisors
In addition to the objective standards set forth below, all
persons employed as supervisors should possess the many
intangible qualifications necessary to success in supervisory
work.
a. General Qualifications
(1) Age— To be eligible for initial appointment the super
visor shall be between the ages of 25 and 55 years.
(2) Physical Fitness—To be eligible for initial appoint
ment the supervisor must have passed satisfactorily a
physical examination given by a regular practicing physi
cian and must have filed a report of such examination on
the form now adopted by the State Board of Health; at the
discretion of the State Superintendent the applicant may be
required to take a special examination given by a physician
designated by the State Board of Education.
(3) Leadership and Personal Characteristics—Each ap
plicant for a supervisory position must file with the County
Superintendent and the State Superintendent a completed
application form setting forth experience, leadership activ
ities, personal characteristics, and other items as may be
included on a form prescribed and adopted by the State
Board of Education.
228
b. Special Qualifications* (see note)
(1) Qualifications of General Supervisors
General Supervisors shall meet the following requirements:
(a) Hold a valid teaching certificate, graduate or above,
having on face thereof, “ Administration and Supervision,”
covering both elementary and secondary levels.
Temporary approval may be given for a general supervisor
who does not meet certification requirements in full, pro
vided, a plan for securing full certification within two years
is filed and carried out.
(b) Have five years successful experience including teach
ing and/or administrative and supervisory responsibility,
at least two years of which experience shall have been
completed within the five years immediately preceding
appointment to a supervisory position.
(c) Beginning supervisors shall hold a certificate of Rank
H or above in accordance with Section 236.07 (1), Chapter
23726, Laws of Florida, Acts of 1947.
(2) Qualifications of Supervisors at the Elementary or
Secondary School Levels.
Supervisors whose duties are limited to the elementary or
secondary school levels shall meet the following require
ments :
(a) Hold a valid teaching certificate, graduate or above,
having on the face thereof “ Administration and Supervi
sion” covering the level to be supervised.
(b) Have five years successful experience including teach-
# Requirements here set forth are to he considered a minimum and
every effort shall he made to secure the services of persons with
much higher types of qualifications and experience. When a super
visor is appointed who meets only minimum requirements he shall
be required to make every effort to improve his qualifications con
sistent with the proper performance of the duties to which assigned.
229
ing and/or administrative and supervisory responsibility,
at least two years of which experience shall have been com
pleted within the five years immediately preceding appoint
ment to a supervisory position. At least three years of the
experience shall have been in the level to be supervised and
the degree upon which certificate is issued shall have in
cluded the special level to be supervised as a major field of
training.
(c) Beginning supervisors shall hold a certificate of Bank
II, or above.
(3) Qualifications of Supervisors of Special Subjects or
Special Programs.
(a) Hold a valid teaching certificate, graduate or above,
or its equivalent, in the field for which responsibility is
given.
(b) Five years successful experience as a teacher, admin
istrator, or supervisor in the field for which responsibility
is given, at least two years of which shall have been com
pleted within the five years immediately preceding appoint
ment to the supervisory position.
(c) Academic specialization shall have included the field
to be supervised and the field of education including at least
six semester hours in curriculum and supervision.
2. Duties of Supervisors.
a. Persons employed through the use of supervisory units
shall give full time to working with teachers, principals,
and other school personnel in the field of instruction. Under
no circumstances will administrators or administrative
assistants be certified from supervisory units.
b. In counties not employing a supervisor of Negro schools
the general supervisor shall have his services equitably ap
portioned among the schools (white and/or Negro) in the
one or more counties by whom he is employed.
230
c. General supervisors shall be paid and subject to duty on
a twelve months basis, and special supervisors on not less
than a ten months basis. Supervisors shall attend all con
ferences called by the State Superintendent of Public In
struction which are related to the satisfactory performance
of supervisory duties.
d. Supervisors shall make such periodic reports relative to
their plans and accomplishments as may be required by
the Division of Instruction of the State Department of
Education.
3. Procedure for Employment of Supervisors
a. The employment of persons to fill supervisory positions
in a county shall follow the procedure prescribed by law
and by State Board Regulations for other instructional per
sonnel up through the point where the County Board of
Public Instruction has approved the nomination of the in
dividual concerned. The County Superintendent shall then
certify the action to the State Superintendent of Public
Instruction, furnishing all information necessary to enable
the State Superintendent to present the matter to the State
Board of Education for approval or disapproval. The action
of the State Board of Education shall then be certified by
the State Superintendent to the County Superintendent. In
the event the State Board concurs in the action of the Coun
ty Board, the County Board may then proceed with contract
ing for the services of the supervisor. In the event the State
Board finds the individual not qualified or for other reasons
rejects the nomination of the individual concerned, the
County Superintendent shall initiate action to secure
the nomination of some other individual qualified for the
position.
b. The dismissal of persons in supervisory positions in a
county shall follow the procedure prescribed by law and
by State Board Regulations for other instructional per
231
sonnel with the additional requirement that approval of the
State Board of Education shall be necessary before the
dismissal of any supervisor may he effectuated.
Adopted July 3, 1947
Section 236.04 (1) (2)
State Board Regulation
relating to
ISOLATED SCHOOLS
(Adopted in accordance with the provisions of Section
236.04 (1) and (2), Chapter 23726, Laws of Florida, Acts
of 1947)
1. Instruction units for all non-isolated schools with less
than 120 pupils in average daily attendance will be calcu
lated by dividing the average daily attendance of such
schools by 27.
2. ISOLATED SCHOOLS. Any school having less than
120 pupils in average daily attendance shall be considered
an isolated school for the purpose of computing instruction
units when any of the following conditions are found to
exist:
a. Elementary Schools
(1 ) School with 90 to 119 pupils inclusive in average daily
attendance: If it is more than six miles by the nearest
passable road from another elementary school for the same
race in which satisfactory facilities could be provided.
(2) School with from 60 to 89 pupils inclusive in average
daily attendance: If it is more than eight miles by the
nearest passable road from another elementary school for
the same race in which satisfactory facilities could be
provided.
232
(3) School with 59 pupils or less in average daily attend
ance: I f it is more than ten miles by the nearest passable
road from another elementary school for the same race in
which satisfactory facilities could be provided.
(4) I f more than 15% of the pupils to be transported
would have to be on the bus for an average of more than
one hour each morning or evening.
(5) Not more than one instruction unit shall be allowed
for any one-teacher elementary school regardless of whether
it is considered an isolated school; Provided, however, that
an instruction unit will not be allotted for a school with
an average daily attendance of less than nine, unless evi
dence is presented to the State Superintendent showing that
consolidation of this school is impossible.
b. Junior High Schools
(1) School with 90 to 119 pupils inclusive in average daily
attendance: I f it is more than seven miles by the nearest
passable road from another junior high school for the same
race in which satisfactory facilities could be provided.
(2) School with from 60 to 89 pupils inclusive in average
daily attendance: I f it is more than nine miles by the
nearest passable road from another junior high school for
the same race in which satisfactory facilities could be
provided.
(3) School with 59 pupils or less in average daily attend
ance: If it is more than eleven miles by the nearest passable
road from another junior high school for the same race in
which satisfactory facilities could be provided.
(4) If more than 25% of the pupils to be transported
would have to be on the bus for an average of more than one
hour each morning or evening.
(5) Unless a center has a ninth grade or is definitely
organized as part of a high school it is to be considered
233
an elementary school for purposes of computing instruction
units and determining isolation.
c. Senior High Schools
(1 ) School with 90 to 119 pupils inclusive in average daily
attendance: If it is more than eight miles hy the nearest
passable road from another senior high school for the same
race in which satisfactory facilities could be provided.
(2) School with 60 to 89 pupils inclusive in average
daily attendance: I f it is more than ten miles by the
nearest passable road from another senior high school for
the same race in which satisfactory facilities could be
provided.
(3) School with less than 59 pupils in average daily attend
ance: If it is more than twelve miles by the nearest passable
road from another senior high school for the same race in
which satisfactory facilities could be provided.
(4) I f more than 25% of the pupils to be transported
would have to be on the bus for an average of more than
one hour each morning or evening.
(5) Unless a center has a twelfth grade it is to be con
sidered as a junior high school for purposes of computing
instruction units and determining isolation.
3. TEMPORARY ISOLATED SCHOOLS. Any school
having less than 12Q pupils in average daily attendance
shall be considered a temporarily isolated school for the
purpose of computing instruction units when satisfactory
facilities cannot be provided at another appropriate center
within the distances prescribed above, or when the pupils
cannot be transported because of road conditions; provided,
however, no school will be considered as temporarily iso
lated because of lack of building facilities after July 1,
1948.
234
Adopted July 21, 1953
Section 239.38
239.41
239.42
State Board Regulation
relating to
THE DISTRIBUTION OF GENERAL SCHOLARSHIPS
1. In accordance with provisions of Sections 239.38, 239.41
and 239.42, Florida Statutes as amended by the 1953
Legislature, the following distribution of scholarships is
established:
White Negro Total
Alachua 16 7 23
Baker 7 1 8
Bay 17 4 21
Bradford 8 2 10
Brevard 13 3 16
Broward 21 7 28
Calhoun 7 1 8
Charlotte 5 1 6
Citrus 6 2 8
Clay 10 2 12
Collier 6 2 8
Columbia 11 2 13
Dade 54 10 64
DeSoto 8 1 9
Dixie 5 1 6
Duval 40 12 52
Escambia 27 6 33
Flagler 4 1 5
Franklin 6 1 7
Gadsden 10 9 19
Gilchrist 4 1 5
235
The Distribution of General Scholarships (Continued)
White Negro Total
Glades 3 1 4
Gulf 7 1 8
Hamilton 7 2 9
Hardee 9 1 10
Hendry 6 1 7
Hernando 7 1 8
Highlands 9 2 11
Hillsborough 42 6 48
Holmes 11 1 12
Indian River 9 2 11
Jackson 12 6 18
J etf erson 6 4 10
Lafayette 4 1 5
Lake 15 4 19
Lee 13 2 15
Leon 15 8 23
Levy 8 2 10
Liberty 3 1 4
Madison 8 4 12
Manatee 15 3 18
Marion 13 6 19
Martin 6 2 8
Monroe 15 2 17
Nassau 9 2 11
Okaloosa 15 1 16
Okeechobee 4 1 5
Orange 28 5 33
Osceola 9 1 10
Palm Beach 24 9 33
Pasco 12 2 14
Pinellas 34 4 38
Polk 29 5 34
Putnam 12 3 15
236
The Distribution of General Scholarships (Continued)
White Negro Total
St. Johns 12 4 16
St. Lucie 11 3 14
Santa Rosa 12 1 13
Sarasota 15 2 17
Seminole 11 5 16
Sumter 8 2 10
Suwannee 11 2 13
Taylor 8 2 10
Union 7 2 9
Volusia 20 6 26
Wakulla 5 2 7
Walton 9 3 12
Washington 10 1 11
Total 843
80.3%
207
19.7%
1050
100%
If any county shall receive more scholarships under this
distribution than the total of its General, Representative,
and Senatorial scholarship holders on the 1953-54 scholar
ship roll, the additional scholarships shall not be activated
until it is ascertained that the appropriation for scholar
ships is sufficient for this purpose.
2. Within the allocation tentatively allotted each county,
vacancies shall be declared in such a manner as to insure
having, whenever possible, not less than twenty-five per
cent of the total number of awards open to white and to
Negro students respectively who would enter an approved
Florida institution as freshmen during each and every year.
Where there are sufficient vacancies in any county to allow
such distribution, twenty-five per cent of the total number
237
shall also be made available to persons falling in each of
the following levels: sophomore, junior, senior.
3. A scholarship holder must register in the school, college,
or department of education of an institution of higher
learning located in Florida and approved by the State
Board of Education for teacher education and certification.
4. The State Superintendent shall have authority to declare
in which teaching fields applicants must train to be eligible
for a scholarship.
5. A General Scholarship for the Preparation of Teachers
may be renewed annually for a period of four years, but
may not be used for work beyond the four-year degree level
nor after the holder has received $1600.00 in scholarship
funds.
6. Examinations to fill vacancies for General Scholarships
are to be held twice a year, in the fall and in the spring.
The State Superintendent of Public Instruction shall make
all arrangements for these examinations and shall supervise
the selection of winners, etc.
7. I f for any reason, illness included, a scholarship holder
must remain out of college for longer than one semester, he
will forfeit his scholarship. I f later he returns to college
and desires scholarship aid, he must re-apply by submitting
a new application for a declared vacancy. An exception may
be made in the case of a scholarship holder called into the
Armed Services. If the veteran desires scholarship rein
statement upon his return from service, his scholarship may
be restored to him if a vacancy exists in his county.
8. I f on July 1 of any year, quotas for white or Negro stu
dents with respect to General Scholarships for the Prepara
tion of Teachers remain unfilled in any county, and if upon
investigation by the State Superintendent it is found that
such conditions exist because of (1) a dearth of persons
interested in making application or (2) the failure of ap-
238
plicants to make the required minimum score, the State
Superintendent may declare such vacancies to exist on a
state-wide basis. The state-wide vacancies declared should
then be awarded in the following manner:
a. A roster shall be compiled containing the names of eligi
ble persons making the minimum passing score who failed
to receive an award on the latest examination.
b. From such roster, in order of rank of excellence and in
keeping with the college-year level for which the vacancies
placed in the state-wide pool exist, awards are to he made.
c. Persons receiving such awards will be permitted to con
tinue them from year to year, as provided by law, until the
termination of the scholarship; at the end of this period,
such vacancies shall be again restored to the counties to
which they were originally allocated.
9. This repeals paragraph 2, pages 225-26 of State Board
Begulation relating to Summer School Scholarships and
Scholarships for Preparation of Teachers, pages 224-26,
adopted July 6, 1949.
239
Adopted July 21, 1953
Sections: 239.19
239.38-239.44
State Board Regulation
relating to
SCHOLARSHIP COMMITTEE
The State Scholarship Committee shall be composed of
eight members appointed by the State Superintendent of
Public Instruction. The membership shall be the dean of
education of each of four colleges or universities approved
for teacher education for white teachers, the president or
dean of education of one college or university approved for
teacher education for Negro teachers, the dean or the direc
tor of one approved junior college, and two members of the
State Department of Education.
Two members shall be appointed for a one year term, two
for two years, two for three years, and two for four years.
Thereafter each member shall be appointed for a term of
four years.
Any vacancy shall be filled for the unexpired term by
appointment by the State Superintendent of Public
Instruction.
The committee shall elect its chairman and recorder for
terms not to exceed two years.
The duties of the committee shall be to formulate policies
and make recommendations that will add to the effective
ness of the scholarship program.
The committee shall meet at least twice a year and at
such other times as the chairman shall consider necessary.
The committee may invite other officials concerned with
the administration of the scholarship program to meet
with the committee at any meeting.
240
Adopted November 16, 1948
Sections 239.41 thru
239.44
239.19 thru
239.24
State Board Regulation
relating to
SCHOLARSHIPS FOR PREPARATION OF TEACHERS
AND HOUSE AND SENATORIAL SCHOLARSHIPS
(Adopted in accordance with the provisions of Sections
239.41 thru 239.44 and Sections 239.19 thru 239.24, Florida
Statutes, as amended by Chapter 23726, Laws of Florida,
Acts of 1947)
The method and manner of handling and collecting schol
arship notes which may become in default shall be as
follows:
The President of each institution of higher learning where
the scholarship was held shall give such assistance as may
be reasonably requested by the State Treasurer in the col
lection of scholarship notes which have become payable by
reason of the scholarship holder failing to perform services
in satisfaction of his scholarship note.
241
Adopted July 3, 1947
Section 242.05 (1)
State Board Regulation,
relating to
STATE SUPERVISORY SERVICES
(Adopted in accordance with the provisions of Section
242.05(1), Florida Statutes, 1941, as amended by Chapter
23726, Laws of Florida, Acts of 1947)
1. The use of State Supervisory Funds shall be in accord
ance with a budget for a program planned as a part of
the State Department of Education services for supervision
of white and Negro schools as recommended by the State
Superintendent of Public Instruction.
2. Recommendations for nomination of persons to fill State
Supervisory positions shall be submitted to the State Board
of Education by the State Superintendent of Public Instruc
tion. In no case may any individual be certified, nominated,
or paid any salary from State Supervisory Funds who does
not meet the qualifications prescribed by the State Board
of Education for holding supervisory positions of the type
being filled.
3. Approval by the State Board of Education shall be
necessary before any State Supervisory Funds may be paid
to any person recommended and employed in accordance
with the preceding section; approval of both the State Su
perintendent of Public Instruction and the State Board of
Education shall be necessary before the dismissal of any
supervisor employed through use of State Supervisory
Funds may be effectuated. 4
4. Included as a part of the administrative plan for super
vision the State Superintendent shall file with the recom
mendation a brief statement outlining (1) the duty to be
242
performed by the supervisor; (2) tbe total annual salary;
(3) tbe amount to be paid for travel; and, (4) qualifications
of supervisor to be employed.
5. The qualifications and duties of State Supervisors shall
be in accordance with the types of qualifications and
the duties as listed for County Supervisors as would be
applicable to work on the State level.
Adopted February 14, 1950
Sections 234.01 thru 234.25
and related sections.
State Board Regulation
relating to
TRANSPORTATION OF PUPILS
(Adopted in accordance with Chapter 234 and related sec
tions of Florida Statutes)
* * * *
(8) The land sections shall be computed separately for
white and Negro races.
243
I N THE
Supreme Court of the United States
O c t o b e r T e r m , A. D. 1953.
No. 1
OLIVER BROWN, et al.,
vs.
BOARD OF EDUCATION OF
TOPEKA, KANSAS, etc., et al.
Appellants,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS.
ADDITIONAL BRIEF OF THE AMERICAN FEDERA
TION OF TEACHERS AS AMICUS CURIAE.
JOHN LIGTENBERG,
134 N. La Salle Street,
Chicago 2, Illinois,
Counsel for American Federation of
Teachers, Amicus Curiae.
Selma M. B orchardt,
Homer Building,
Washington, D. C.,
Of Counsel.
C H A M P L I N 'S H C A L V C O M P A N Y , C H I C A O O c ^ ^ > 3 6 8
I N D E X .
PAGE
Motion for Leave to File Brief as Amicus C uriae......... 1
Brief of American Federation of Teachers as Amicus
Curiae .............................................................................. 3
Summary of Argument ..................................................... 3
Argument ............................................................................ 4
Introduction: Need to consider issues in broad aspects 4
I. The strengthening and preservation of a
democratic society demands an educated cit
izenry ................................................................. 6
II. The intent of the 14th amendment was to
make the Negro a citizen and protect his
voting rights ..................................................... 10
III. To exercise his right of choice effectively a
voter must not only be educated but educated
among all those who make up the total com
munity ................................................................. 16
IV. An integrated school system will add tre
mendously in developing harmonious rela
tions among the people of the south and
thereby throughout the coun try .................. 19
Conclusion: A decision in favor of integrating school
ing on every level is necessary, not only to give sub
stance to our declared principles but to win over the
peoples of Asia and Africa to a belief in the sincer
ity of the United S tates................................................. 25
TABLE OF CASES.
See Appellants’ Briefs.
STATUTES.
See Appellants’ Briefs.
m
m
I N T H E
Supreme Court of the United States
O c t o b e r T e r m , A. D. 1953.
No. 1
OLIVER BROWN, et al.,
vs.
Appellants,
BOARD OF EDUCATION OF
TOPEKA, KANSAS, etc., et al.
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS.
MOTION FOR LEAVE TO FILE BRIEF AS
AMICUS CURIAE.
To the Honorable the Chief Justice and Associate Justices
of the Supreme Court of the United States:
The undersigned as counsel for and on behalf of the
American Federation of Teachers, respectfully moves this
Honorable Court for leave to file the accompanying brief
as Amicus Curiae. In October, 1952, we filed upon leave
of Court our Brief Amicus Curiae in the case of Brown
et al vs. Board of Education of Topeka, etc. (No. 8) and
in December, 1952, in the case of Bolling et al v. Sharpe,
et al (No. 413). Consent of Counsel for filing those briefs
was given by counsel for appellants and appellees.
The American Federation of Teachers, whose 60,000
classroom teacher members represent the group which
2
does the actual work of teaching the children of the
nation, is committed to a practice of complete equality
between teachers and children of every race. This principle
is written indelibly in its constitution and by-laws.
It desires to lay before the court the results of its study
of the legal and historical questions raised by this Honor
able Court in asking for a reargument of the “ school segre
gation cases” . The accompanying brief, largely the Avork
of its Committee on Democratic Human Relations, is sub
mitted as a contribution to the solution of the important
issues involved.
John L igtenberg,
Counsel for the American Federation
of Teachers.
Selma M. B orchardt,
Of Counsel.
I N T H E
Supreme Court of the United States
O c t o b e r T e r m , A. D. 1953.
No. 1
OLIVER BROWN, et al.,
vs.
Appellants,
BOARD OF EDUCATION OF
TOPEKA, KANSAS, etc ., e t a l .
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS.
BRIEF OF AMERICAN FEDERATION OF
TEACHERS AS AMICUS CURIAE.
As a contribution to the solution of the important issues
involved in the “ segregated school cases” the American
Federation of Teachers submits this brief upon some of the
historical and legal questions raised by this Honorable
Court in proposing a re-argument.
The Opinions Below, Questions Presented, Statutes and
Constitutions Involved, and Statements of Pacts have been
stated in previous briefs filed in these causes.
Summary of Argument.
The arguments presented in our previous briefs Amicus
Curiae and those presented herewith are summarized in
the Introduction to the Argument.
4
A R G U M E N T .
Introduction:
Need to consider cases in broad aspects.
The American Federation of Teachers which is dedicated
to “ education for democracy and democracy in education”
is deeply interested in the cases before the Supreme Court
challenging the constitutionality of segregation in public
elementary and secondary schools. The arguments the
Federation submitted in October 1952 against segregated
public education are equally valid in 1953 and we urge
their favorable re-consideration.
We have studied carefully the historical and legal ques
tions raised by the court in asking for a re-argument of
the cases this year. While it is essential to have accurate
and clear cut answers to these questions, the American
Federation of Teachers believes that the interests of the
United States, both national and international, demand
the consideration of other factors as well as those raised
by the Court.
In addition to the arguments presented in our brief
October, 1952, namely:
1. The Constitutions and Statutes of states provid
ing for segregation of students in the public schools,
violate the requirements of the equal protection
clause of the Fourteenth Amendment. The doctrine
of “ separate but equal” facilities is fallacious . . .
2. Segregation in public schools inevitably results
in inferior educational opportunities for Negroes . . .
3. Segregation in public schools deprives the Negro
student of an important element of the education
process and he is thereby denied the equal educational
opportunities mandated by the Fourteenth Amend
ment . . .
5
the Federation urges the abolition of segregated schooling
on the elementary and secondary levels for the following
reasons:
I. The strengthening and preservation of a demo
cratic society demands an educated citizenry.
II. The intent of the 14th amendment was to make
the Negro a citizen and protect his voting rights.
III. To exercise his right of choice effectively a
voter must not only be educated but educated among
all those who make up the total community.
IV. An integrated school system will aid tremend
ously in developing harmonious relations among the
people of the South and thereby throughout the
country.
Conclusion.
A decision in favor of integrated schooling on every
level is necessary, not only to give substance to our de
clared principles but to win over the peoples of Asia and
Africa to a belief in the sincerity of the United States.
6
THE STRENGTHENING AND PRESERVATION OF A
DEMOCRATIC SOCIETY DEMANDS AN EDUCATED
CITIZENRY.
A democratic society is founded on the belief that all
men are equal and capable of governing themselves. It
holds further that men create the institutions of govern
ment for the purpose of safeguarding their rights of “ life,
liberty and the pursuit of happiness.” To govern wisely,
as well as to use effective checks upon governmental author
ity to prevent abuses, requires an alert, well-educated
citizenry.
The early founders of this country were well aware of
this need for the maintenance of popular government.
They gave many evidences of their concern for public edu
cation in their writings and in their activities.
President George Washington in his first inaugural
address stated:
“ Knowledge is in every country the surest basis of
public happiness. In one in which the measures of
government receive their impressions so immediately
from the sense of the community7, as in ours, it is
proportionably essential. To the security7 of a free
constitution it contributes in various ways, by con
vincing those who are intrusted with the public ad
ministration that every valuable end of government
is best answered by the enlightened confidence of the
people and by teaching the people themselves to know
and value their own rights, to discern and provide
against invasions of them; to distinguish between
oppression and the necessary exercise of lawful author
ity; between burdens proceeding from a disregard to
their convenience and those resulting from the exigen-
I .
7
cies of society; to discriminate the spirit of liberty
from that of licentiousness, cherishing the first, avoid
ing the last and uniting a speedy but temperate
‘ vigilance against encroachments with an inviolable
respect to the laws ’ 1
Washington not only urged the establishment of a na
tional university but, in his will, left 50 shares in the
Potomac Company for such an institution to which the
youth of fortune and talents from all parts thereof (of the
U. S.) might be sent for the completion of their education
in all branches of polite literature; in arts and sciences;
and in acquiring knowledge in the principles of politics and
good governments.2
In his Farewell Address, Washington left this final ad
monition; “ Promote then, as an object of primary im
portance, institutions for the general diffusion of knowl
edge. In proportion as the structure of government gives
force to public opinion, it is essential that public opinion
should be enlightened. 3
John Adams in his D issertation on the Canon
Feudal L a w : “ But the fact is certain; and whenever a
general knowledge and sensibility have prevailed among the
people, arbitrary government and every kind of oppression
have lessened and disappeared in proportion. ” 4 Fie stated
later in another essay: “ Thoughts on Government”—“ . . .
Laws for the liberal education of youth, especially of the
lower classes of people, are so extremely wise and useful,
1 Maxims of Washing-ton, pp. 184-85, John Frederick Shroeder Mt.
Vernon Ladies Association— Mt. Vernon, Va., 1942.
■ Writings of Washington— Vol. 37, p. 280, U. S. Government Printing
Office, 1940.
* Farewell Address, p. 179, Maxims of Washington, John Frederick
Schroeder, Mt. Vernon Ladies Association. Mt. Vernon, Va., 1942.
1 Selected Writings of John Adams and John Quincy Adams, Adrienne
Koch and William Peden, Alfred A . Knopf, 1940.
8
that to a humane and generous mind, no expense for this
purpose would be thought extravagant.” 5
Thomas Jefferson’s career was filled with activities in
behalf of public education because he was convinced an in
formed public opinion was essential to maintaining freedom.
As a member of the Virginia legislature he introduced bills
for providing the state with a system of free public schools.
He wanted especially written on his grave marker that he
established the University of Virginia. His authorship of
the Land Act of 1784, established the precedent followed
in the Northwestern Ordinance of 1787 of granting land
by the national government for the support of education.
Like Washington, he called attention, in his first inaug
ural address to the importance of education and the need
for the national government to be concerned about it. “ . . .
The diffusion of information I deem (one) of the essential
principles of our government and consequently (one) which
ought to shape its administration ’ ’ 6
In a letter to James Madison he stated:
“ Above all things I hope the education of the com
mon people will be attended to; convinced that on their
good sense we may rely with the_utmost security for
the preservation of a due degree of liberty. ’ ’ 7
The working man too realized the importance of educa
tion and a generation later, became quite vocal in his unions
and political groups in demanding free public schools. He
urged this not only for the self improvement of the worker
but also for his more effective functioning as a citizen.
At a New York State convention of the Workingman’s
Party in 1830 one address stated in part:
“ The right of suffrage which we enjoy cannot be
understanding^ exercised by those whose want of edu-
5 Ibid., p. 56.
6 The Jeffersonian Encyclopedia, John P. Foley, Editor, Funk and
Wagnalls, 1900.
1 Ibid., p. 277.
9
cation deprives them of the means of acquiring such
information as is necessary for a proper and correct
discharge of this duty.”8
In a circular to the workingmen of Philadelphia (1830)
by the Workingmen’s Republican Association of the North
ern Liberties, the organization made this appeal: “ Let
the productive classes then unite for the preservation of
their free institutions and, by providing for all the children
in the Commonwealth republican education preserve our
liberties from the dangers of foreign invasion or domestic
infringement. ’ ’ 9
A trade union of Newark demanded education for their
children as “ a matter of right and duty” . Its members
argued: “ Education alone, and that generally diffused is
the only prop that will support the fabric of Democracy
from being crushed beneath the weight of monopolized
and moneyed artistocracy. ” 10
And the workers of the First Congressional District of
Pennsylvania (1830) supported the candidacy of Stephen
Simpson because “ he is a friend and indefatigable defender
of a system of general education which will place citizens
of this extensive republic on an equality: a system that
will lit the poor as well as the rich to become our future
legislators; a system that will bring the children of the
poor and the rich to mix together as a band of republican
brethren; united in youth in acquisition of knowledge they
will grow up together jealous of naught but the republican
“History of Labor in the United States, Vol. 1, p. 283, J. R. Com
mons, MacMillan, 1918.
'Ibid., p. 227.
“ Pioneers of Labor, p. 11, Pamphlet of Amalgamated Meat Cutters
and Butcher Workmen of North America, Mayer and Muller Co.,
Chicago, 1949.
10
character of their country and present to the world the
sublime spectacle of a truly republican government in prac
tice as well as in theory. ’ ’ 11
As a result of the concern of the founders of this coun
try and the persistent demands of labor unions, the free
public school has become an integral part of American life.
No other institution gives as tangible an evidence of
American faith in the democratic way of life as the free
public school and none is so generally supported by the
great mass of people. It is ironic that this American insti
tution is permitted by Southern State laws to violate and
desecrate this faith so flagrantly and constantly.
I I .
THE INTENT OF THE 14TH AMENDMENT WAS TO
MAKE THE NEGRO A CITIZEN AND PROTECT HIS
VOTING RIGHTS.
The 14th amendment, by stating specifically that “ all
persons born or naturalized in the United States and sub
ject to the jurisdiction thereof are citizens of the United
States and of the state wherein they reside” 12 intended to
make the Negro a citizen. It also intended to make the
Negro a voter and protect his voting rights by placing a
penalty upon the states that disfi'anchised him—namely,
cutting down the state’s representation in Congress. Sec
tion 2 of the amendment states; “ . . . But when the right
to vote at any election for the choice of electors for presi
dent and vice president of the United States, representa
tives to Congress, the executive and judicial officers of a
state, or the members of the legislature thereof, is denied
to any of the male inhabitants of such state . . . the basis
11 History of Labor in the U. S., J. R. Commons, Vol. 1, p. 228, Mac
Millan, 1918.
1214th Amendment, U.S. Constitution, Section 1.
11
of representation therein shall be reduced in the proportion
which the number of such male citizens twenty-one years
of age in such state.” 13
The debates in the 39th and the 41st Congresses and the
state conventions and in the state legislatures which ratified
the 14th amendment clearly indicate that both the pro
ponents and opponents of the amendment realized that it
protected the citizenship and voting rights of the Negro.
Moreover, they show that the debaters were conscious of
the issue of segregation in education. The Congressional
Globe reports on February 19, 1866 that Senator Yates of
Illinois while making a speech in the Senate for the pro
posed 14th Amendment said:
“ . . . the senate at this session have passed the bill
(S. 61) to protect all persons . . . in their civil rights
. . . here, sir, I contend, we have fully established the
principle . . . protecting the inhabitants, of every race
and color, without regard to any previous condition
of slavery in all their civil and political rights. . . ” 14
A week later in the House Representative Rogers of
New Jersey while arguing against the 14th Amendment
stated that:
“ In the State of Pennsylvania there are laws which
make a distinction with regard to the schooling 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 pro-
“ 14th Amendment, Section 2.
11 Toward a Non-Segregated South, Edwin R. Brook, Christian Century,
September, 1933.
“a Congressional Globe, 39th Congress, First Session, February 19,
12
tection in the rights of life, liberty, and property, and
all the privileges and immunities of citizens in the
several States. ’ ’ 15
For a short period after the adoption of the Fourteenth
Amendment there was no segregation at the University of
South Carolina. Indeed it was not until the Tillman Consti
tutional Convention of 1895 that separate schools were
provided for Negro and white children. Yet in 1868, Gov
ernor Orr voiced the opinion that the new amendment
would bring immediate dire results. He addressed the
Assembly as follows:
‘ ‘ . . . The Constitution provides that there shall be
kept open, at least six months in each year, one or
more schools in each school district. . . . Another
Section, however, declares that all the public schools,
colleges and universities of the State, supported in
whole or in part by public funds, shall be free and
open to all the children, and youths of the State, with
out regard to race or color.
If it shall be attempted to establish schools where
both races are to be taught, no provision being made
for their separation, the whole system will result in a
disastrous failure. The prejudices of race, whether
just or unjust, exists in full force not more in South
Carolina than in New England and the West. In the
last named localities, separate schools are provided
for white and colored children, and in a community
where these prejudices prevail in so strong a degree,
how unreasonable is it to attempt the organization of
mixed schools. It cannot but result in constant feuds
and collisions between the children, in which the par
ents respectively, will necessarily take up the quarrels
16 Congressional Globe, 39th Congress, First Session, March 1, 1866.
13
and the entire community thus be involved in continual
tumult; the consequence of misguided efforts of unwise
persons.” 16
In 1868 under the spirit of the Fourteenth Amendment,
the people of Louisiana ratified a constitution by a vote of
66,152 to 48,739. This constitution provided:
“ The general assembly shall establish at least one
free public school in every parish throughout the State,
and shall provide for its support by taxation or other
wise. All children of this State between the years of
six and twenty-one shall be admitted to the public
schools or other institutions of learning sustained or
established by the State in common, without distinc
tion of race, color, or previous condition. There shall
be no separate schools or institutions of learning es
tablished exclusively for any race by the State of
Louisiana. ’ ’ 17
By 1898 the political climate had so changed that the new
constitution decreed separate schools based on race in this
fashion:
‘ ‘ There shall be free public schools for the white and
colored races separately established by the General As
sembly, throughout the State, for the education of all
the children of the State between the ages of six and
eighteen years; provided, that where kindergarten
schools exist, children between the ages of four and
six may be admitted into said schools.’ ’ 18
Virginia’s Constitutional Convention of 1867-68 brought
into prominence one James W. Hunnicutt who summarized
» Journal of the Assembly of South Carolina, Special Session, 1868,
p. 44.
17 Constitution of Louisiana, 1868, Title VII, Article 135.
18 Constitution of Louisiana, 1898, Article 248.
14
the position of his caucus of the Republican Party in a
speech on January 9,1869 this way:
. . Our banner is thrown to the breeze, and upon
it is written ‘ the unconditional preservation of the
Union.’ That is the first plank. The second is, ‘ a re
publican form of government,’ The third is, ‘ the
equal rights of all men, civil and political, before the
law, without regard to race, caste or color.’ The last
is, ‘ the establishment of systems of general education
for all the children in the land without regard to race,
caste or color.’ these are the objects of the members
on this side of the House. ’ ’ 19
Even clearer language is that used by the Fredericks
burg’s convention which besides electing delegates to the
constitutional convention adopted this resolution:
“ that our candidates must pledge themselves to
sustain the principles of the Republican Party, espe
cially the equal political rights of all men in all re
spects; a system of common schools in which no dis
tinctions shall be made on account of color and race, a
general provision for the poor and a just and equitable
system of taxation.” 20
It is apparent in our opinion, that the delegates to the
convention of 1868 were conscious of the problem of segre
gated public schools. Many of them thought that the Four
teenth Amendment covered this point adequately and con
sequently specific reference to it in the State Constitution
was not necessary. During the debates, a resolution by
Dr. Thomas Bayne, a delegate from Norfolk, which spelled
out non-segregation in public schools, met defeat as did
19 Debates and Proceedings of Constitutional Convention of Virginia,
1867-1868, p. 337.
29 Political History of the Reconstruction in Virginia, H. J. Eckenrode.
15
likewise a provision to establish separate schools by Eus
tace Gibson.
The first State Legislature which was dominated by con
servatives made segregated public schools legitimate. The
importance of this move in creating a segregated society
is obvious in the letter of W. H. Ruffner, the first superin
tendent of public instruction, who in answering the assump
tion of Reverend R. L. Dabney that education will lead in
evitably to “ amalgamation” observes:
“ . . . But if under the ordinary associations of life
there would be any tendencies in the direction of amal
gamation, the school system would oppose a powerful
barrier to such tendency. In fact, of all the public
arrangements of Southern society, the school system
alone renders a bold, emphatic testimony to the im-
miscibility of the races. We find Negroes in our
churches, our theatres, our courthouses, our rail-cars,
our halls of legislation; but there is one place where
no Negro enters, and that is a W HITE PUBLIC
SCHOOL HOUSE. The law separates the races in
education, and in nothing else. The effect of this sepa
ration enters into the educational thought and training
of the young, and establishes the habits and etiquette
of society with a firmness that nothing else is doing,
or could do. . . . ” 21
Thirty years passed before the “ plans” of the superin
tendent bore fruit as a fait accompli. The General Assem
bly of Virginia extended the segregated principle to other
fields according to this time schedule:
1900, Chapter 226, Segregation in Railroads.
1900, Chapter 312, Segregation in Steamboats.
!1 Collected Papers of William H. Ruffner, (letter in answer to R. L.
Dabney) 6-11.
16
1901, Chapter 198, Segregation in Street-cars.
1912, Chapter 157, Segregation in Residential
areas.
1918, Chapter 301, Segregation in Penitentiaries.
1926, Chapter 569, Segregation in places of public
amusement.22
A consideration of ALL of the historical evidence on the
question of segregation in public education in the southern
states will confirm our findings in Virginia, South Carolina,
and Louisiana. These affirm that the political leaders dur
ing the late eighteen sixties possessed an understanding of
the effect of segregation on our public institutions and that
Negroes enjoyed a fair measure of freedom. They also
demonstrate that the Negro gradually lost full citizenship
privileges by the turn of the century, if provisions on seg
regation in state constitutions and statutes or actual prac
tices are our criteria. In a sense then, this brief constitutes
an argument to restore the rights of the Negro guaranteed
him originally in the Fourteenth Amendment.
I I I .
TO EXERCISE HIS RIGHT OF CHOICE EFFECTIVELY
A VOTER MUST NOT ONLY BE EDUCATED AMONG
ALL THOSE WHO MAKE UP THE TOTAL COM
MUNITY.
So necessary is education to a wise use of the ballot that
most states have laws that voters must be able to read and
write as a minimum requirement for voting. The reading
requirement, whether on the elementary or the more ad
vanced level has a content suited for adults who are to help
22 Statutes of the General Assembly of Virginia.
17
vote the kind of laws and the type of leadership their com
munities will have.
In South Carolina it is the state constitution that is con
sidered appropriate:
“ Any person who shall apply for registration after
January 1, 1898, if otherwise qualified, shall be regis
tered : provided, that he or she can both read and write
any section of this constitution submitted to him or her
by the registration officer.. . . ”
In New York on the other hand, it is a literacy test that is
required:
“ ‘new voter,’ within the meaning of this article, is a
person who, if he is entitled to vote in this state, should
have become so entitled on or after January first,
nineteen hundred twenty-two, and has not already
voted in a general election in the State of New York
after making proof of ability to read and write Eng
lish, in the manner provided in section one hundred
sixty-eight. ’ ’
The New York Board of Regents provides each appli
cant with one of a possible twelve examinations on sub
jects such as: The Hoover Dam, Thomas Edison, The
Ausable Chasm, Samuel Adams, polio, Charles Lindbergh,
Washington at Newburgh. He is required to answer cor
rectly six out of eight questions on the topic in writing.
Thus not only must the new voter read and write, he must
also comprehend.
But it is not considered sufficient for a voter just to be
able to read about issues and candidates. He is expected
to have a more intimate knowledge of the individuals run
ning for office and be able to weigh and judge in choosing
18
among them. The necessity for the voter to know the
merits and demerits of candidates is further attested by the
“ short ballot” movement. This aims to present to the
voter only a few candidates so that he may know each more
thoroughly.
Candidates too, are required to live in the districts from
which they are elected, not only that they may serve the
people more effectively, but that the people may be repre
sented by one whom they know well. Richard S. Childs in
his article The Short Ballot, makes this point when he
asserts:
“ . . . That the candidates should be conspicuous is
vital. The people must be able to see what they are
doing; they must know the candidate, otherwise they
are not in control of the situation, but are only going
through the motions of controlling. ’ ’2S
Childs goes on to show how important this is to the de
velopment of democratic government by this comment:
“ . . . I f the government is to be brought within the
sure control of the people, the ballot must be brought
within the sure control of the individual voter. We
must get on a basis where the real intentions of the
average voter finds intelligent expression on the en
tire ballot so as to produce normally the kind of gov
ernment the voters want whether that kind be good
or bad. ’ ’24
It is here that the public school plays a significant role,
for it is in their learning together that prospective voters
get to know and understand each other, learn the problems
of their respective communities and discover those who
may provide desirable leadership. More and more schools
are being used not only as training ground for political
aspirants, but also for forums where these aspirants meet
23 The Short Ballot, Richard S. Childs, National Municipal League,
1930, p. 15.
M Ibid., p. 20.
19
representatives of the entire community and discuss issues
with them face to face.
The public schools then of the South must be integrated
to serve the needs of all citizens, both white and black, in
the effective exercise of their ballot—one of the main props
of a democratic society.
I V .
AN INTEGRATED SCHOOL SYSTEM WILL AID TRE
MENDOUSLY IN DEVELOPING HARMONIOUS RE
LATIONS AMONG ALL GROUPS IN THE UNITED
STATES.
The tensions and conflicts between races in the United
States has resulted not from integrations but from the seg
regation and discrimination in custom and in law which
have been inflicted upon the Negro. In no institution has
this discrimination been so glaring as in the public school
system of the South where the inequalities in facilities for
white and Negro children daily incite contempt on one hand
and bitterness on the other. A graphic picture of this in
equality is presented by Edwin L. Brook in his article:
“ Toward a Non-Segregated South.” 14
‘ ‘ Consider, for example, my own community, a small
town in Northern Louisiana. It has a fine brick school
plant for whites, with grammar and high school de
partments well equipped for an enrollment of about
250 pupils. It has gymnasium, lunch room, home eco
nomics building and agricultural building. On the out
skirts of town there is a Negro school consisting of
wood-frame buildings which are over-crowded and in
adequately equipped. There is no gymnasium and the
facilities on all levels cannot compare with those of
the white school. Yet even as it is, the Negro school
represents a tremendous advance over previous condi-
14 Toward a Non-Segregated South, Edwin R. Brook, Christian
Century, September, 1953.
20
tions. It was not many years ago that the students
were meeting in a tent in a near-by Negro churchyard.
Now a number of small rural schools have been con
solidated and the present building erected. ’ ’
Contrast this with areas where integration has been the
practice. Here there are no humiliating distinctions. The
Negro student is accepted and is recognized for what he is
—one of the many varieties of an American.
After the Siveatt-McLaurin decision, 339 U. S. 629, 637
which made integration possible in state colleges and uni
versities in the South, Negro students were accepted with
out any difficulty. Today between 1000 and 2000 of them
are studying on over 80 campuses as irrefutable testimony
to this fact. On the elementary and secondary level inte
gration has followed suit in areas like Arizona, New Mexico,
Southern Illinois, Ohio, and New Jersey. Even the private
preparatory schools of New England States have joined
this democratic development. The Yale Law Journal sum
marizes the trend:
“ . . . As a result of the recent Supreme Court cases,
over a thousand Negroes have been peacefully inte
grated into southern graduate and professional schools.
Social ostracism has not been as great as was ex
pected. Furthermore, in Illinois, Indiana, and New
Jersey, state legislatures have forced reluctant com
munities to eliminate segregation in their grade
schools. Despite local resentment and protest, the in
tegration of Negro and white children has generally
proceeded peacefully.
“ Other forms of desegration have recently occurred
in the South and despite sporadic racial violence the
transition has in general been peaceful. In some in
stances the desegration has occurred in activities where
southern insistence on segregation has been most
adamant. Thus, in St. Louis and Washington, D. C., in
spite of strong public protest, segregation m munici
pal swimming pools has been successfully prohibited.
Experience in the elimination of segregation in public
21
parks, sporting events, theatres and movies has been
the same. Likewise, in the armed forces, where re
sistance to racial integration has been traditional, seg
regation is fast disappearing at the command of the
President. In the allied fields of racial discrimination,
such as white primaries, all-white juries and segre
gated interstate travel, court orders have partially
overcome deeply rooted patterns of discrimination.
All of this progress has been made in the face of con
tinuous threats of violence and non-conformance by
southern leaders.
“ These instances of southern adjustment to enforced
desegregation strongly suggest that the normal reac
tion of the South to Supreme Court decisions is not vio
lent. Generally, the only resistance takes the form of
attempted circumvention. Tighter decrees and per
sistent enforcement ultimately overcome even this
type of resistance. Thus, there is little reason for the
courts to allow threats of violence and civil strife to
delay desegregation.
“ In the long run it is well established that segrega
tion intensifies rather than eases racial tension. In
stead of encouraging racial cooperation, segregation
fosters mutual fear and suspicion which is the basis
of racial violence. Thus, every inroad in racial segre
gation which the courts can effect maximizes the op
portunity for eventual racial reconciliation.” 25
THE AMERICAN FEDERATION OF TEACHERS
feels that desegregation on the American scene is suc
cessfully proceeding in various ways—by voluntary com
munity action, by legislative acts, by judicial review, by
military and religious authority and by individual initi
ative.
In all of these cases the question of appropriate method,
timing and who should take the initiative, arises. We be
lieve that the public school being one of the molders for
our citizens of tomorrow should take the lead; we believe
“ Yale Law Journal, Volume 61 No. 5, May 1952.
22
the time is now—we believe we have the ‘ know-how’—we
believe the most logical authority is the Supreme Court.
The experience of the United States Department of De
fense can be of service to us in this connection. The armed
forces, once completely segregated has in three years,
almost become totally desegregated. Listen to John A.
Hannah, Assistant Secretary of Defense, in an interview
on ending segregation:
Q : Have you solved the problem of segregation in
the Army?
A : I think remarkable progress has been made.
The Air Force and the Navy are completely integrated.
The Army is about 95 per cent integrated.
Q : What does that mean ?
A : That means that there are no colored men in
the Navy or the Air Force who are serving in “ col
ored” units. They are all serving in integrated units.
And that is true of 95 per cent of the colored men in
the Army. We still have a few colored units, but they
are being done away with rapidly. In eight months
there will be no non-integrated units in the Army. Uni
versally the answer from our commanders is that it
is desirable and works out very well in spite of all
contrary predictions— it works very well.
Q: There has been no resistance, no violence or
demonstrations about it?
A : No. The colored men are very effective mem
bers of the armed forces. Some of them are more ef
fective than others, of course, depending upon their
background and training.
Q: Are they adept for any particular types of
jobs?
A : We don’t know that yet.
Q: How many colored officers are there in com
mand positions in these integrated setups?
A : There are a goodly number. There are not as
many colored officers proportionately as there are
white officers.
Q : Are they commanding white troops ?
23
A : Yes, and there are a great many more than there
used to be because, as the colored officers begin to
demonstrate ability, they begin to move up.
Q: Is there a quota system?
A : None.
Q : How many Negroes are there in the Army?
A : I do not recall the exact number, but about 13
per cent of the Army is colored.
Q : Are you thinking about lowering physical stand
ards at all ?
A : No. There have been requests from the serv
ices for the raising of the mental qualification at the
minimum level. At the present time, we require each
of the services to take a certain percentage of the
four mental categories. Whether a man enlists or
comes in in the draft, they are all given examinations
at the examining stations and are put into one of four
categories, and then we require each of the services to
take the same percentage of each of the categories.
The services think they are very definitely hindered
by being required to take too many Category 4 people—
the people in the lowest mental category.26
New Jersey, like Illinois and Ohio, is contiguous with
states that have a segregated pattern. New Jersey’s ex
perience in desegregation in the southern part of the state
is brought out by Joseph L. Bustard, Assistant Commis
sioner of Education in a speech delivered at Howard Uni
versity, April 16, 1952 when he reported:
“ . . . A very recent survey in New Jersey shows that
at the present time, forty of the forty-three school dis
tricts involved were completely integrated as of Sep
tember 1951. The remaining three districts all have
taken some steps toward integration, but in all three
of these districts, building programs are underway,
that when finished, will make integration complete.
“ Sometimes the question arises should integration
in the public schools follow or lead movements for in
tegration in other areas of community life. The New
Jersey experience would seem to indicate that the
” U.S. News and World Reports: October 16, 1953— Interview with
John A. Hannah, Assistant Secretary of Defense, pp. 99, 100.
24
schools can and should lead. Practically all of the
segregated schools had segregated parent-teacher as
sociations. Today, in almost all of the districts af
fected, there are strong integrated P T A ’s with Negroes
serving as officers and executive committee menders.
In . several communities, Y.M.C.A.’s that were segre
gated have become integrated. In a few communities,
Negroes are serving as members of boards of educa
tion and in some others, policemen have been appointed
and handle the same type of assignment as any other
officer on the force. In fact, even a few of the
North Jersey cities have restudied old school zones,
that at one time or another had been jerrymandered,
and as a result have announced new school district
lines.
“ While New Jersey cannot furnish any one formula,
it can testify that complete integration in the public
schools can and will work. It may even be safe to
say once more, that the way to learn to do a thing is
to do it, and in this respect, New Jersey has proven
again that the best way to integrate is to do it. ’ ’27
In most instances of successful integration in public
school the first step seems to be the establishment of legal
authority. William W. Barnes in a review of the methods
used by a local board of education in solving this problem
writes:
“ . . . In conclusion, therefore, it is safe to say that
the following policies and attitudes must be a part of
any desegregation program undertaken in any com
munity, whether it be large or small. First, there
must be some legal authority giving initial impetus to
an integration program. Second, an objective survey
of all installations, faculties, pupil compositions and
community attitudes should be made. Third, and per
haps most important, once the decision to desegregate
is made, the carrying out of the plans made must be
done in a positive manner with no deviation, apology,
exception or vacillation whatsoever. I f these three
27The New Jersey Story: Concerning the Development of Racially
integrated Public Schools, pp. 9, 17, April 1953, New Jersey Depart
ment of Education.
25
major suggestions are carried out, the successful ex
periences of over forty school districts in the State of
New Jersey indicate that the integration of white and
colored school systems can be accomplished to the
satisfaction of all the people affected.” 28
The majority of the people in the south will accept a
Supreme Court decision outlawing segregation on the ele
mentary and secondary level as they accepted the decision
outlawing the white primary. Especially will they do so,
if the law-enforcement agencies on the national, state and
local levels all indicate publicly that they will not counte
nance anything but orderly acceptance of a Supreme Court
decision in favor of an integrated school system.
Conclusion.
The United States, in the cold war with Soviet Russia and
its satellites is disturbed by the “ neutralism” of India and
other sections of the darker world. The factor of color has
as dominant a part in this neutralism as the unwillingness
to be drawn into a conflict between these powers. Con
stantly in the U. N. and in the press of these countries there
is pointed out the gap between our professions of democ
racy and our practice in so far as people of color are con
cerned. The western world is still too unaware of the up
heavals taking place among the darker people of the world
and too indifferent to the significance of these upheavals for
the white world.
In so far as we eliminate among our citizens barriers
based on race and color, to that degree we are helping to
“ Eliminating Segregation in New Jersey Public Schools, William W .
Barnes, Field Supervisor, Division Against Discrimination, New Jersey
Department of Education, p. 7, October 15, 1953.
26
create a “ more perfect union here” and a reservoir of good
will for us in the vast world of color.
A decision outlawing segregation in education on the
elementary and secondary level will not only advance the
educational opportunities of both whites and Negroes in the
South, but it will also give convincing evidence to millions
in Asia and Africa that the United States is willing to give
more than lip service to the principles on which it is
founded.
Respectfully submitted,
John L igtenberg,
134 N. La Salle Street,
Chicago 2, Illinois,
Counsel for American
Federation of Teachers,
Amicus Curiae.
Selma M. B orchardt,
Homer Building,
Washington, D. C.
Of Counsel.
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
O L IV E R B R O W N , M R S . R IC H A R D L A W T O N .
M R S. S A D IE E M M A N U E L , et al„
Appellants,
VS.
B O A R D O F E D U C A T IO 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 , et al.
On A p p ea l from the U nited States D istrict Court
fo r the D istrict o f Kansas
BRIEF OF AMERICAN JEWISH CONGRESS
AS AMICUS CURIAE
Herman L. W eisman,
Shad Polier,
W ill Maslow,
Joseph B. Robison,
Attorneys for
A merican Jewish Congress,
15 East 84th Street,
New Y ork 28, N . Y .
< ^ ^ > 3 0 7 BAB PRESS IN C ., 5 4 LAFAYETTE ST., N E W YO BK 1 3 ---- W A . 5 - 3 4 3 2 - 3 .
SU BJECT IN D EX
PAGE
Statement of I nterest.......................................................... 1
Statement of the Case ........................................................ 3
The Question to W hich T his Brief Is A ddressed..... 4
Summary of A rgument ........................................................ 4
Argument :
When a state establishes racially segregated
public grade schools, it thereby perpetuates in
equality between the races and discriminates
against the Negro race in violation of the “ equal
protection” clause of the Fourteenth Amend
ment ,...t........................................................................ 5
A. The Pre-Existing Inequality of Negroes and
Whites .................................................................. 6
B. The Constitutional Significance of State-Im
posed Racial Segregation on the Lines of a
Pre-Existing Social Inequality........................ 7
C. The Effect of Racial Segregation in Public
Grade Schools .................................................... 11
(1) Enforced segregation in public grade
schools stamps the Negro with a badge
of inferiority and thereby renders in
ferior the facilities allocated to bim by
the state ...................................................... 11
(2) Enforced separation does oppress the
Negro community .................................... 16
Conclusion 20
11 Index
T A B LE OF A U TH O R ITIE S
D e c is io n s
Atlanta Journal Co. v. Farmer, 48 Ga. App. 273
(1934) ............................................................................. 12
Axton Fisher Tobacco Co. v. Evening Post, 169 Ky.
64 (1916) ................................................................... 14
Chicago, R. I. and P. Ry. Co. v. Allison, 120 Ark. 54
(1915) ............................................................................. 12
Collins v. Oklahoma State Hospital, 76 Okla. 229
(1919) ............................................................................. 12
Dred Scott v. Sandford, 60 U. S. (19 How.) 393
(1857) ......................................................................... 6
Flood v. News and Courier Co., 71 S. C. 112 (1905).. 12
Hargrove v. Okla. Press. Pub. Co., 130 Okla. 76
(1928) ......................................................................... 12
Jones v. Polk & Co., 190 Ala. 243 (1913) ....................... 12
Louisville and N. R. R. Co. v. Ritchel, 148 Ky. 701
(1912) ............................................................................. 12
McLaurin v. Oklahoma, 339 U. S. 637 (1949) ................. 18
M. K. T. Railway Co. of Texas v. Ball, 25 Tex. Civ.
App. 500 (1901) ........................................................... 12
O’Connor v. Dallas Cotton Exchange, 153 S. W. 2d
266 (Tex., 1941) ........................................................ 12
PAGE
Plessy v. Ferguson, 163 U. S. 537 (1896) 3,10,11,16
PAGE
Shelley v. Kraemer, 334 U. S. 1 (1948) ...................... 9, 20
Slaughter House Cases, 83 U. S. 36 (1872) ................ 7
Strauder v. West Virginia, 100 U. S. 303 (1879)....... 6, 9
Stultz v. Cousins, 242 F. 794 (C. C. A. 6th, 1917) ..... 12
Sweatt v. Painter, 339 U. S. 629 (1949) ...............11,16,18
Upton v. Times-Democrat Pub. Co., 104 La. 141
(1900) ......................................................................... 12
Williams v. Riddle, 145 Ky. 459 (1911) ...................... 12
Wright v. F. W. Woolworth Co., 281 111. App. 495
(1935) ......................................................................... 12
Statutes
Florida Statutes (1941), sec. 352.03 ............................ 13
Georgia Code Ann. (1935), sec. 18-209 ...................... 13
Kansas Gen. Stat. (1949), ch. 72-1724 ........................ 3
No. Car. Gen. Stat. (1943), sec. 60-94 ........................ 13
M iscella n eo u s
Berger, Morroe, Equality by Statute (1952) ............... 8
Bond, Education of the Negro in the American Social
Order (1934) .............................................................. 17
Davis and Dollard, Children of Bondage (1940) .....15,16
Deutscher and Chein, The Psychological Effect of
Enforced Segregation: A Survey of Social Sci
ence Opinion, 26 The Journal of Psychology, 259
(1948) ..........................................................................17,19
Dollard, Caste and Class in a Southern Town (1937) 13
Doyle, The Etiquette of Race Relations (1937)............ 14
Index iii
IV Index
Frazier, The Negro in the United States (1949)....... 6
Gallagher, American Caste and the Negro College
(1938) ................. ....................................................... 16
Johnson, Patterns of Negro Segregation (1943).......12, 14
Mangum, The Legal Status of the Negro (1940).......12, 13
Maslow, Will, Prejudice, Discrimination and the
Law, The Annals, May, 1951 ................................ 8
McGovney, Eacial Eesidential Segregation by State
Court Enforcement of Eestrictive Agreements,
Covenants or Conditions in Deeds Is Unconsti
tutional, 33 Calif. Law Eev. 5 (1945).................. 15
McWilliams, Eace Discrimination and the Law,
Science and Society, Yol. IX, No. 1 (1945) ....... 14
Moton, What the Negro Thinks (1929)........................ 15
Myrdal, An American Dilemma (1944)....................... 14
Pound, The Task of the Law (1944)............................ 8
Segregation in the Public Schools—A Violation of
“ Equal Protection,” 50 Yale Law Journal 1059
(1947) 16
Stephenson, Eace Distinctions in American Law
(1910) 6
Stouffer, Studies in Social Psychology in World War
II, Volume I (1949) .................................................. 15
Woofter, The Basis of Eacial Adjustment (1925)...... 16
PAGE
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
O L IV E R B R O W N , M R S . R IC H A R D L A W T O N ,
M R S . S A D IE E M M A N U E L , et al„
Appellants,
VS.
B O A R D O F E D U C A T IO 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 , et al.
On A p p ea l from the U nited States D istrict Court
fo r the D istrict o f Kansas
BRIEF OF AMERICAN JEWISH CONGRESS
AS AMICUS CURIAE
S T A T E M E N T OF IN TEREST
This brief amicus curiae is submitted with the consent
of the parties.
The American Jewish Congress is an organization com
mitted to the principle that the destinies of all Americans
are indissolubly linked and that any act which unjustly
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 pro
mote the civil and political equality of all minorities in
America. ’ ’
2
Believing as we do that Jewish interests are insep
arable 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, however, an additional reason for our inter
est. The special concern of the Jewish people in human
rights derives from an immemorial tradition which pro
claims 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 struggle for human dignity and liberty is thus of
the very substance 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
“ separate but equal” has engendered hatred, fear and
ignorance. 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 indicative
of its political and moral standards and ultimately de
terminative of the happiness of all its members. Our
immediate objective here is to secure unconditional equality
for Americans of Negro ancestry. Our ultimate objec
tive in this case, as in all others, is to preserve the
dignity of all men so that we may achieve full equality
in a free society.
3
STA TE M E N T OF TH E CASE
The City of Topeka, pursuant to authority granted it
by the General Statutes of Kansas of 1949 (Ch. 72-1724),
maintains a segregated system of schools for the first
six grades. The appellants, adult and infant Negroes, filed
a class suit in the U. S. District Court against the Topeka
School Board seeking a declaration of unconstitutionality
and an injunction restraining the enforcement of the
Kansas statutes and the segregation instituted thereunder,
on the ground that such segregation violated the Four
teenth Amendment of the United States Constitution in
that (1) Negro schools were inferior in facilities and (2)
segregation, in and of itself, constituted an inequality in
educational advantage. The State of Kansas intervened
as a defendant.
A three-judge Court rejected appellant’s first conten
tion finding that the Negro schools were substantially
equal to those allotted to whites (R. 245), a finding which
appellants here do not challenge. Although the court
found that segregation of white and colored children in
public schools had “ a detrimental effect upon the colored
children” (R. 245), it considered itself bound by this
Court’s opinion in Plessy v. Ferguson, 163 U. S. 537,
and therefore also rejected appellant’s second contention
(R. 243-244). Appellants on direct appeal are now seek
ing a review of that decision. The decision below is un
reported.
4
TH E QU ESTION T O W H IC H TH IS BRIEF IS ADDRESSED
This brief is addressed solely to whether the require
ment of equality contained in the Fourteenth Amendment
of the United States Constitution is satisfied by affording
“ separate but equal” public grade school facilities to
Negro and white children.
SU M M A R Y O F A R G U M E N T
When a state establishes racially segregated public
grade schools, it thereby perpetuates inequality between
the races and discriminates against the Negro race in
violation of the “ equal protection” clause of the Four
teenth Amendment.
A. State imposed segregation stems from a theory of
superiority of the white race over the Negro race inherited
as a remnant of the institution of slavery.
B. The social inequality which was one of the results
of slavery changes in both degree and nature when it is
incorporated in the laws of a state. Such incorporation
places the power of the state behind the inequality, freezes
the unequal status and impedes its gradual change. The
inequality, which thus receives the imprimatur of the
state, causes a denial of the equal protection of the laws
if it results in an inequality of values in the facilities
provided by the state or causes oppression of a race.
C. (1) Segregated public grade schools do adopt a
pre-existing inequality and place a badge of inferiority
5
on the Negro race. Since the value of facilities is deter
mined in part by the standing in the community of those
who use them, the result is an inequality of value in the
public school facilities provided for the separate races.
(2) In addition, because of the adoption of the pre
existing inequality, the Negro race suffers psychic injury
in the segregated school system.
A R G U M E N T
When a state establishes racially segregated
public grade schools, it thereby perpetuates inequality
between the races and discriminates against the
Negro race in violation of the “equal protection”
clause of the Fourteenth Amendment.
The segregated public school system of Topeka, Kan
sas, was found constitutional by the court below under
what is known as the “ separate but equal” doctrine. That
doctrine holds that the “ equal protection” clause of the
Fourteenth Amendment is not violated when a state agency
provides separate facilities for its white and Negro citi
zens as long as the facilities are equal (R. 240-244). We
believe that that doctrine is erroneous on several counts.
Here, however, we shall focus attention on only one of
its aspects. It is our position that state-imposed racial
segregation in public grade schools violates the Fourteenth
Amendment because it adopts a classification based on
concepts and practices of inequality and, by that adoption,
contributes to, extends and deepens the discrimination
resulting from the inequality and incorporates that dis
crimination in the schooling which it provides.
6
A . T he Pre-Existing Inequality o f N egroes and W hites
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. Immediately after
the Civil War the southern states adopted laws limiting
the rights of Negroes to own property, to institute law
suits and to testify in judicial proceedings. They imposed
different penalties on Negroes and whites for the same
offenses and otherwise placed the freedmen under legal
restraints. Stephenson, G. T., Race Distinctions in Ameri
can Law (1910), pp. 35-66; Frazier, E. F., The Negro in the
United States (1949), pp. 126-127. These “ Black Codes,”
as they were called, were a plain reflection of the earlier
attitude that Negro slaves, and those descended from them,
“ had no rights which the white man was bound to re
spect.” Dred Scott v. ISand ford, 60 U. S. (19 How.) 393,
407 (1857). “ It required little knowledge of human nature
to anticipate that those who had long been regarded as
an 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 he enacted
or enforced to perpetuate the distinctions that had before
existed.” Strauder v. West Virginia, 100 U. S. 303, 306
(1879).
We shall show in the following sections, first, that the
Fourteenth Amendment prohibits state action which incor
porates, and thereby strengthens and entrenches, this pre
existing inequality and, second, that state-imposed racial
segregation in public grade schools has that effect.
7
B. The Constitutional Significance o f State - Im posed
Racial Segregation on the Lines o f a Pre-Existing
Social Inequality
Tlie Fourteenth Amendment was intended to and did
invalidate the gross discrimination of the Black Codes.
Slaughter House Cases, 83 U. S. 36, 70 (1872). It may he
assumed, at least for the purposes of this case, that it did
not lay upon the states the affirmative obligation to undo
all the results of slavery. Thus, the Amendment did not
reach whatever social inequality remained. Private indi
viduals and institutions were free to discriminate as they
chose.
Specifically, no question would have arisen under the
Amendment in the area of education if the states had
simply refrained from providing public schools. But if
they did provide public schools, they were required to do
so in a manner which did not cause unequal treatment.
We pass over the question whether the Amendment
would have been violated if the creation of public, racially-
segregated schools had had no effect on the existing racial
inequality. It is unnecessary to consider that question
because, we submit, when government gives official sanc
tion to pre-existing social inequality, its action causes a
change in both the degree and the nature of the inequality
and incorporates it into its own activities.
This change takes place because once a social classifi
cation based on group inferiority is formally adopted by
the state, the ensuing official inferiority in turn intensifies
and deepens the social inequality from which it stems.
As long as law is not called into play to shape conduct,
gradual changes in attitude can bring about corresponding
changes in conduct patterns. These changes, in turn,
8
further the attitude changes. Once the law intervenes,
however, gradual spontaneous change becomes impossible.*
Suppose, for example, that Kansas did not maintain a
public school system and had no laws requiring segrega
tion in education. As already noted, privately operated
schools would be free to segregate and even to exclude
racial groups entirely. Those private groups, however,
who rejected racial inequality would also he free to act
according to their principles. Most important, those who
opposed segregation would be able to change the situation
gradually by persuading one school authority at a time
to change its policy. Each success they achieved would
demonstrate the feasibility of non-segregated schools
and thereby increase their chances of success with other
schools.
On the other hand, when the state places the policy
of segregation in its laws, it freezes the social inequality
in whose mold the laws are cast. More than that, the
laws eliminate the free play of individualism and force
all, without exception, to conform their conduct to the
caste system. It is then no longer possible to urge gradual
change or to attempt step-by-step improvement. The stat
ute becomes a bulwark against dissentient opinion, per
suasion and even economic pressure.
An additional result of segregation laws is to give
the otherwise inarticulate social feeling of racial superi
ority the sanction of official regulation. The feeling ae-
* The manner in which the law “ maintains one set o f values against
another” (Pound, Roscoe, The Task of the Law (1 9 4 4 ) , p. 25 ) has
been intensively studied in recent years. For summaries o f the findings, see
Berger, Morroe, Equality by Statute (1 9 5 2 ) , pp. 170 -193 ; Maslow,
W ill, Prejudice, Discrimination, and the Law, The Annals, May 1951,
pp. 9-17.
9
quires a concreteness and assertiveness which it would not
otherwise possess. The stricter the regulation, the stronger
and more articulate the feeling of social distance becomes.
This Court itself took note of that fact when it character
ized a law excluding Negroes from juries as a “ stimulant
to . . . race prejudice.” Strauder v. West Virginia, 100
U. S. 303, 308 (1879).
The distinction between private and public schools just
discussed finds a close parallel in Shelley v. Kraemer,
334 U. S. 1 (1948). This Court there noted that the Con
stitution is not violated where “ the States have merely
abstained from action, leaving private individuals free to
impose such discriminations as they see fit.” 334 U. S., at
19. Where, however, the “ imprimatur of the State” is
placed on the discrimination, the Fourteenth Amendment
becomes applicable and it makes no difference that “ the
particular pattern of discrimination, which the State has
enforced, was defined initially by the terms of a private
agreement.” 334 U. S., at 20.
So here the “ full panoply of state power” (334 U. S.,
at 19) has been placed behind the inequality inherent in
segregation. The state power is brought to hear in two
ways. It enforces and extends the pre-existing social
inequality {supra, pp. 7-9), and, at the same time, pro
vides facilities which, because of that social inequality,
are unequal in value {infra, pp. 11-12).
The barrier to change set up by segregation laws is the
same in nature as that created by the state-enforced re
strictive covenants condemned in the Shelley case. The
Court there found beyond the reach of the Constitution
mere “ gentlemen’s agreements” which derived no strength
from the state. The discrimination adopted in those
10
agreements, like that adopted by privately operated
schools, can be whittled away gradually. Institutions may
be persuaded, by argument or pressure, to depart from
established patterns. The vice of judicial enforcement of
restrictive covenants lay in the fact that it froze patterns
of discrimination and placed them beyond the reach of
erosion; “ but for the active intervention of the state
courts” (334 IT. S., at 19), change would have been pos
sible. In the same way, segregation statutes use the
authority of the state to preserve the inequality and dis
crimination which they incorporate.
This Court recognized in the Plessy case that the stat
ute there considered did conform to existing social atti
tudes. It noted that the statute was enacted “ with refer
ence to the established usages, customs and traditions of
the people . . . ” 163 U. S., at 550. Where the Court erred,
we submit, was in holding in effect that the state could
ignore the status of inferiority in which those “ usages”
placed the Negro and could also ignore the reenforcing
effect which its legislation had on that status.
In any event, where as here, the state does more and
provides facilities to which the state-reenforced inequality
attaches, the violation of the Constitution is plain. As
we shall now show, segregation in public grade schools,
by imposing a badge of inferiority on the Negro race,
causes inequality in the facilities made available to it
and results in oppression of that race within the public
school system. We submit that the Fourteenth Amend
ment prohibits such use of the state’s power to maintain
inequality in public facilities.
11
C. The E ffect o f R acial Segregation in
Public G rade Schools
( 1 ) E n f o r c e d s e g r e g a tio n in p u b lic g r a d e sch o o ls
s ta m p s th e N e g r o w ith a b a d g e o f in fe r io r ity
a n d t h e r e b y r e n d e r s in fer io r th e fa c ilit ie s
a llo c a te d to h im b y th e s ta te .
It can hardly be disputed that an official regulation
declaring that a group is inferior and consequently con
fining it to separate schools would be discriminatory. That
much was virtually conceded in the Plessy decision when
the Court characterized as a “ fallacy . . . the assumption
that the enforced separation of the two races stamps the
colored race with a badge of inferiority.” 163 U. S., at 551.
It thereby implied that a different result would have been
reached if the contrary were true.
An official declaration that the Negro race is inferior
to the white and must therefore be confined to separate
schools would necessarily depreciate the value of the Negro
schools in the eyes of the community. This is because
the value and desirability of property depends not only
upon its intrinsic qualities but also upon its association
with persons enjoying* a certain reputation. The desir
ability of a beautiful resort may be lessened by its being
visited by people deemed of “ low” social standing. Dif
ferences in value of this nature are significant under the
Fourteenth Amendment as this Court recognized when it
condemned segregation in state law schools because of
differences in “ those qualities which are incapable of
objective measurement but which make for greatness in
a law school,” including “ standing in the community,
traditions and prestige.” Sweatt v. Painter, 339 U. S.
629, 634 (1950).
12
We do not have here, of course, an express declaration
by the State of Kansas that Negroes are inferior to
whites.* Yet the same effect is achieved if a state estab
lishes public school segregation along the lines of a pre
existing social inequality. It is plain that that is what
public school segregation does.
Examination of the pattern of segregation laws reveals
plainly that they are designed not to prevent all contact
between the races but to prevent contact on the basis
of equality. It is the social definition of the situation that
determines its treatment in both law and custom. Merely
“ shaking a black hand may be very repulsive to a white
man if he surmises that a colored man conceives of the
situation as implying equality.” Johnson, Patterns of
Negro Segregation (1943), p. 208. Those who insist upon
the caste system in our society freely and unstintingly
agree to the ritual of equal physical facilities so long as
somehow there is also an accompanying communication
that the Negro is inferior and is to remain so.
¥Other states having segregation laws have given express recognition
to racial inequality in decisions holding that it is libelous per se to write
that a white man is a Negro ( Upton V. Times-Democrat Pub. Co., 104
La. 141 ( 1 9 0 0 ) ; Collins V. Oklahoma Slate Hospital, 76 Okla. 229
( 1 9 1 9 ) ; Hargrove V. Okla. Press Pub. Co., 130 Okla. 76 (1928);
Flood V. N ew s and Courier Co., 71 S. C. 112 (1 9 0 5 ) ; Stultz V. Cous
ins, 242 Fed. 794 (C .C .A . 6, 1 9 1 7 ) ; see also Jones V. Polk & Co.,
190 A la. 243 ( 1 9 1 3 ) ; Atlanta Journal Co. V. Farmer, 48 Ga. App.
273 ( 1 9 3 4 ) ; Wright v . F . W . Woolworlh Co., 281 111. App. 495
( 1 9 3 5 ) ; Williams v. Riddle, 145 Ky. 459 ( 1 9 1 1 ) ; O'Connor V.
Dallas Colton Exchange, 153 S. W . ( 2 ) 2 6 6 (T ex ., 1 9 4 1 ) ; Mangum,
The Legal Status of the Negro, 1940, at p. 18) and in cases awarding
damages to white passengers who are forced to ride in Jim Crow cars
( M .K .T . Railway Co. o f Texas V. Ball, 25 Tex. Civil App. 500
( 1 9 0 1 ) ; Louisville and N .R . Co. V. Ritchel, 148 Ky. 701 (1912);
Chicago R . I. and P . R y. Co. v. Allison, 120 Ark. 54 ( 1 9 1 5 ) ) .
13
Segregation laws provide the ready vocabulary for
that communication. In at least one respect, this can be
seen in the segregation laws themselves. Ten Southern
states expressly exempt nurses or other attendants from
the laws requiring segregation on railroads (Mangum,
The Legal Status of the Negro (1940), pp. 188-189) and
three of these disclose the intent of this exception by
limiting it to “ colored” attendants. Florida Statutes
(1941), sec. 352.03; Georgia Code Ann. (1935), sec. 18-209;
No. Car. Gen. Stat. (1943), sec. 60-94.
Even where the statutes are not so disingenuous the
purpose is clear. By segregation “ racial and cultural
differences between southern whites and slaves were
translated into terms of unquestionable superiority and
inferiority.” Johnson, op. cit., p. 158. According to Dol
lard, Caste and Class in a Southern Town (1937), p. 98,
the sole importance of segregation is to give whites, no
matter how low in the social scale, a sense of power and
importance. Negroes correspondingly must receive a
position and a sense of inferiority. This primary role of
segiegation statutes is reflected in the candid admission
of a Kentucky court:
“ 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 domestic economy of the
state, courts cannot shut their eyes. They must
14
. . . notice . . . the position of the races and the
attitude of the white race toward the Negro.” Axton
Fisher Tobacco Go. v. The Evening Post, 169 Ky. 64
(1916).
That the vocabulary of segregation is effectively under
stood by the entire community cannot be disputed at this
date. Segregation provides a graphic and literal solu
tion to the demand of the white world that Negroes he
kept “ in their place.” To the whites in the community the
enforced separation of races, as we have shown, is clearly
understood as a symbolic affirmation 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 Relations (1937); Johnson,
Patterns of Negro Segregation (1943), p. 158; McWilliams,
Race Discrimination and the Law, Science and Society,
Yol. IX, No. 1 (1945). “ In this magical sphere of the
white man’s mind, the Negro is inferior, totally independ
ent of rational proofs or disproofs. And he is inferior
in a deep and mystical sense. The ‘ reality’ of his inferi
ority 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, immoral, diseased, lazy, incom
petent, and dangerous— dangerous to the white man’s
virtue and social order.” Myrdal, An American Dilemma
(1944), p. 100. Under these conditions “ it is fallacious to
say . . . that the intention and effect [of segregation] is
not to impose any badge of inferiority . . . When a Negro
working-man 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 seat,
separated only by a bit of wire mesh ten inches high on
15
the back of the third seat this is a ‘ separation’ that is
merely a symbolic assertion of social superiority, a ‘ cere
monial’ celebration.” McGovney, Racial Residential Seg
regation by State Court Enforcement of Restrictive Agree
ments, Covenants or Conditions in Deeds is Unconstitu
tional, 33 Calif. L. Rev. 5, 27 (1945).
Similarly, Negroes appreciate the implication of segre
gation (Stouffer, Studies in Social Psychology in World
War 11, Vol. 1, p. 566), resent its slur (Moton, What the
Negro Thinks (1929), pp. 238-239), and resist it as a none
too subtle mechanism for anchoring them in inferiority
(Davis and Dollard, Children of Pondage (1940), p. 245).
These effects in the field of segregated education are
well shown by the record in this case. Dr. Louisa Holt,
a social psychologist, testified as follows on the impact of
school segregation on the personality of the Negro child
(R. 169-170):
“ The fact that it is enforced, that it is legal, I think,
has more importance than the mere fact of segrega
tion by itself does because this gives legal and official
sanction to a policy which inevitably is interpreted
both by white people and by negroes as denoting the
inferiority of the negro group. Were it not for the
sense that one group is inferior to the other, there
would be no basis, and I am not granting that this
is a rational basis, for such segregation.”
The result of segregation has been the infusion of 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), p. 55. Since both
white and Negro view segregation as a method of assert-
16
ing and reenforcing the inferiority of the latter and since
in fact segregation statutes have that effect, this Court
should not continue to maintain the erroneous proposition
enunciated in Plessy V. Ferguson that laws requiring sepa
ration “ do not necessarily imply the inferiority of either
race to the other.” 163 U. S., at 544. Rather it should
find that the schools for Negroes in a segregated system
cannot he regarded as the equal of those for whites in
respect to their “ standing in the community, traditions
and prestige.” Sweatt case, supra. The Fourteenth
Amendment plainly condemns the allocation to separate
races of such unequal facilities.
( 2 ) E n f o r c e d sep a ra tio n d o e s o p p r e s s th e
N e g r o c o m m u n ity .
Since segregation laws are based on a concept of
inequality, place a badge of inferiority on the segregated
race, and intensify and extend the existing stratification,
it is not surprising that, in addition to depreciating the
value of the separate facilities for Negroes, they have
harmful results for the segregated group. Contrary to
the assumption made in the Plessy case, segregation does
cause “ oppression of a particular class.” 163 U. S., at 550.
I f 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. This is particularly true
of segregation in the public schools. Segregation in Pub
lic 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
17
(1925); Bond, The Education of the Negro in the Ameri
can Social Order (1934).
A survey of professional sociological, anthropological
and psychological opinion on this subject has been con
ducted by Drs. Max Deutscher and Isidor Chein of the
Commission on Community Interrelations of the American
Jewish Congress. Eight hundred and forty-nine social
scientists were polled, including the entire membership of
the American Ethnological Society, the Division of Per
sonality and Social Psychology of the American Psycho
logical Association, and all of the members of the Amer
ican Sociological Society who listed race relations or
social psychology as their major field o f interest. Returns
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 pro
vided. 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 so
cial 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 irrele
vance of the physical attributes of the facilities fur
nished.” Deutscher and Chein, op. cit., supra, at p. 280.
The comments are quoted extensively in the article.
The professional opinions expressed in the Deutscher-
Chein study are reiterated in the expert testimony given
18
in the case at bar which formed the basis of the trial
court’s conclusion that “ segregation has a detrimental
effect upon the colored children” (R. 245-246). For ex
ample, Dr. Hugh W. Speer, Chairman of the Department
of Education at the University of Kansas, testified that
regardless of the physical facilities apportioned to the
Negro and white children, the colored child always received
an inferior education in a segregated school since he lacked
the opportunity “ to learn his personal adjustments, his
social adjustments and his citizenship skills in the pres
ence of a cross-section of the population” (R. 126).
Dr. Speer was here taking note of the very point
stressed by this Court in Sweatt v. Painter, 339 U. S. 629,
634 (1949) and McLaurin v. Oklahoma, 339 U. S. 637, 641
(1949). It was there held that the absence of the oppor
tunity for contact with a group of persons representa
tive of those among whom the student will eventually
practice his profession constitutes, in the case of educa
tion on the professional level, an inequality in violation
of the equal protection clause. Clearly in the case at
bar the absence of the opportunity to associate with those
with whom the Negro child must live and work in the
future constitutes a deprivation of equal or greater mag
nitude. Many of these students will not go on to pro
fessional school and thus receive there the opportunity
for such association which this Court has recently assured
them.
The testimony in the instant case contains other evi
dence of the adverse effects of segregation on the Negro
child. Both Dr. Louisa Holt (R. 170) and Dr. Horace
B. English (R. 156) described the adverse effects of the
feeling of inferiority engendered by segregation. Dr.
1 9
Wilbur B. Brookover, a professor of sociology at Micliigan
State College, pointed out the deep resentment induced by
the discrepancy between the vaunted American creed that
all are created equal and the bitter fact of subordination
through segregation (R. 164-165). These conclusions find
support in the Deutscher-Chein study, in which one psy
chologist noted:
“ 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 handle
more or less suppressed retaliatory rage, the displaced
aggression and ambivalence toward their own kind
with a consequent sense of isolation and of not be
longing anywhere— all of these and much more are
bad enough, but the ambiguity of status created by
a society which insists on the fact that all men are
born free and equal, and then turns about and acts
as if they were not is even worse. The constant re
minder—and even boasting— of this equality acts like
salt upon a raw wound 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, members of discriminated against minority
groups are—with regard to these situations.” Deutsch-
er and Chein, op. cit., supra, at p. 272.
Psychic injury always accompanies segregation. We
think it patent that as between a system which imposes
such penalties and one which does not, there can be no
talk of equality.
2 0
CONCLUSION
Equality is impossible in a racially segregated grade
school system. The inferior status in which it freezes the
Negroes and the harmful effects which it has on them are
the direct results of the fact that the state lends its power,
resources and authority to the caste system. Under the
principles of the Shelley case, supra, such use, or abuse,
of state power is a violation of the Fourteenth Amend
ment. Regardless of where the doctrine of “ white su
premacy” originated, regardless of whether its tenets
find explicit expression in state acts, and regardless of
the avowed purpose of state-imposed racial segregation,
that segregation is unconstitutional because, invoking “ the
full coercive power of government” (Shelley case, 334
U. S., at 19), it acts as no other force can to extend in
equality, impede its elimination and incorporate it in the
facilities which it provides for its citizens.
Respectfully submitted,
A merican Jewish Congress,
Amicus Curiae,
H erman L. W eisman,
Shad Polier,
W ill Maslow,
Joseph B. Robison,
Attorneys.
October 9, 1952
Supreme Court of tfje ®triteii States
OCTOBER TERM, 1952
No. 8
OLIVER BROWN, et at., Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, et al., Appellees.
Appeal from the United States District Court for the
District of Kansas
BRIEF OF
AMERICAN VETERANS COMMITTEE, INC. (AVC)
Amicus Curiae
P hineas I ndritz
National Counsel
American Veterans Committee
October 9, 1952
Washinirton, D. C.
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IN D EX
Page
The issue in this ease ............................................................................. 1
The interest of the American Veterans Committee.................... 1
The facts in this case ............................................................................. 2
Argument ................................................................................... 3
I. Psychological discrimination imposed by Government on
account of race violates the Constitutional guarantee
of equal protection of the la w s.............................................. 3
II. This case is governed by this Court’s decisions in the
Sweatt and McLaurin cases, not the Plessy and G o n g . . . .
Lum cases ................................................................................... 9
III. The segregation in this case cannot be supported under
any proper test. And even if the Plessy rule of “ rea
sonable” segregation has any vitality, the segregation
here is unreasonable and should be enjoined.................... 12
IV. The road ahead ...................................................................... 15
TABLE OF AUTHORITIES
Cases:
Anon., II Mod. 99, 88 Eng. Repr. 921 (1707) ............................................ 5
Asbury H osp ita l v. Cass C ou n ty, 326 U. 8. 207 (1945) ............................ 12
Atkinson v. H a rtley , 1 McCord 203 (8. Car. 1821) .................................... 6
Austin v. Culpepper, 2 Show. K. B. 313. 89 Eng. Repr. 960, Skin. 123,
90 Eng. Repr. 57 (1682) .............................................................................. 5
Beanharnais v. Illin ois, 343 U. S. 250 (1952) ............................................. 5
Brown v. B oa rd o f E d u ca tion o f T opeka , 98 F. Snpp. 797 (D. C., D.
Kans. 1951) ........................................................................................................ 3
Buchanan v. TVarley, 245 U. S. 60 (1917) ..................................................... 13
Chicago, B . I . P . B y . Co. v. A llison , 120 Ark. 54, 178 S. W. 401 (1915) 5
City o f Birm ingham v. M on k , 185 F. (2d) 859 (C.A. 5th, 1950), cert,
den. 341 U.S. 940 (1951) ............................................................................... 13
Collins v. Olcla. S ta te H o sp ., 76 Okl. 229, 184 Pac. 946 (1919) .
Cropp v. T iln ey, 3 Salk. 225, 91 Eng. Repr. 791 (1699) .............
Bred S cott v. S an dford , 60 U. S. (19 How.) 393 (1857) .............
Du B ost v. B eresfo rd , 2 Camp. 511, 170 Eng. Repr. 1235 (1810)
Eden v. L ega re, 1 Bay 171 (S. Car. 1791) ..................................
Ex Parte V irginia , 100 U. S. 339 (1880) ......................................
Ferguson v. G ies, 82 Mich. 358, 46 N. W. 718 (1890) ............................ 13
Flood v. N ew s $ Courier Co., 71 S. Car. 112, 50 S. E. 637 (1905) ........... 6
Gong L um v. B ice, 275 U. S. 78 (1927) .................................................3, 10, 11
Hargrove v. Okla. P ress P u l l . C o., 130 Okl. 76, 265 Pac. 635 (1928) ___ 6
Henderson v. U n ited S ta tes, 339 U. S. 816 (1950) ................................9 ; 1 4
Hirabayashi v. U n ited S ta tes, 320 U. S. 81 (1943) ................................ 4
ZD
lO
ZD
tO
ZD
t>-
11 Index Continued
Page
J efferies v. D uncom be, 11 East 226, 103 Eng. Kepr. 991; 2 Camp. 3,
170 Eng. Eepr. 1061 (1809) ...................................................................... 5
Jones v. It. L . P o lk $ Co., 190 Ala. 243, 67 So. 577 (1915) ....................... 6
K in g v. W oo d , 1 Nott & McC. 184 (S. Car. 1818) .................................... 6
K orem a tsu v. U n ited S ta tes, 323 U. S. 214 (1944) .................................... 12
L ane v. W ilson , 307 U. S. 268 (1939) ......................................................... 9
L ouisville 4- N . B . Co. v. B itchel, 148 Ky. 701, 147 S. W. 411 (1 9 1 2 )___ 5
M ason v. Jennings, S ir T . B a ym . 401, 83 Eng. Eepr. 209 (1680) . . . . a
M cL tm rin v. Oklahoma S ta te B eg en ts , 339 U. S. 637 (1950) . . . .3, 9,10,13
M etrop olita n Casualty In s . Co. v. B row nell, 294 U. S. 580 (1935) . . . . 12
M innesota v. B a rber, 136 U. S. 313 (1890) ............................................ 12
M issou ri, K . 4~ T . B y . Co. v. Ball, 25 Tex. Civ. App. 500, 61 S. W.
327 (1901) ............................................................................................................ a
M itchell v. U nited S ta tes, 313 U. S. 80 (1941) ........................................ 13
M organ v. V irginia , 328 U. S. 373 (1946) ................................................ 13
N ectow v. Cam bridge, 277 U. S. 183 (1928) ................................................ 12
N ixon v. H ern don , 273 U. S. 536 (1927) .................................................... 12
O ’Connor v. Dallas C otton E xch ., 153 S. W. (2d) 266 (Civ. App. Tex.
1941) 6
P lessy v. F erg u son , 163 U. S. 537 (1896) ................................... 3,8,10,14,15
Bailroad C om pany v. B row n , 84 U. S. (17 Wall.) 445 (1873) .............. 7
B a y v. B lair, 343 U. S. 214, ftnt. 14 (1952) .......................................... 12
S age S tores Co. v. K a n sa s ex rel. M itchell, 323 U. S. 32 (1944) .............. 12
Schneider v. S ta te , 308 U. S. 147 (1939) .................................................. 12
Shelley v. K ra em er, 334 XT. S. 1 (1948) ....................................................... 13
S ir W illiam B olton v. D ean e, cited in A u stin v. Culpepper, 2 Show. K. B.
313, 89 Eng. Eepr. 960 (1682) ................................................................ 5
S m ith v. T exa s, 311 XT. S. 128 (1940) ....................................................... 5
Spencer v. L oo n ey , 116 Ya. 767, 82 S. E. 745 (1914) ........................... 6
Spotorno v. F ourichon , 40 La. Ann. 423, 4 So. 71 (1888) ....................... 6
Steele v. L ouisville $ N ashville B . Co., 323 U. S. 192 (1944) ............... 5
Strauder v. W e s t V irginia , 100 XJ. S. 303 (1880) .................................... 6
S w ea tt v. P a in ter , 339 XT. S. 629 (1950) ............................................ 3,9,10
Takahashi v. F ish Sr Game Com m ission, 334 XT. S. 410 (1948) .............. 9,12
Thornhill v. A la ba m a , 310 U. S. 88 (1940) ............................................. 12
U p ton v. T im es-D em o. P u bl. Co., 104 La. 141, 28 So. 970 (1900) ............ 6
Virginia v. B iv es , 100 XT. S. 313 (1880) ..................................................... 6
W o lfe v. G eorgia B y . Sr E lec . Co., 2 Ga. App. 499, 58 S. E. 899 (1907) .. 6
T ick W o . v. H op k in s, 118 XT. S. 356 (1886) ................................................9,14
Y u Cong E n g v. Trinidad, 271 XT. S. 500 (1926) .................................... 9
Miscellaneous :
B r ie f of American Veterans Committee in No. 25, Oct. Term, 1949 .. 14
B r ie f of the United States in No. 25, Oct. Term, 1949 ........................... 14
Ch. 72-1724, Gen. Stats, of Kans., Ann. (1949) ........................................ 2
Comment, Facial V iolence and Civil B ig h ts L aw E n forcem en t, 18
Univ. Chi. L. Eev. 769 (1951) ...................................................................... 14
Cooper, The F ru stration s o f B ein g a M em b er o f a M in o rity G roup:
W h a t D oes I t D o to the Individual and to H is B elationships W ith
O ther P eo p le ? , 29 Mental Hygiene 189 (1945) ............................... 4
Deutcher and Chein, The P sych ological E ffe c t o f E n fo rced S egrega tion :
A S u rvey o f Social Science O pinion, 26 Journ. of Psych. 259 (1948) 4
Frank, Can C ourts E ra se the Color L in e ? , 21 Journ. of Negro Educ.
304 (1952) .......................................................................................................... 14
Goff, P rob lem s and E m otion al Difficulties o f N eg ro Children Due to
F a ce , 19 Journ. of Negro Educ. 152 (1950) ........................................ 4
Index Continued iii
Page
McLean, P sych od yn a m ic F a ctors in Facial R elations, 244 Annals of
the Amer. Aead. of Pol. and Soc. Sei. 159 (Mar. 1946) ....................... 4
Myrdal, A n A m erica n D ilem m a, T he N eg ro P roblem and M od ern
D em ocracy, p. 581 (1944) .......................................................................... 8
National Committee on Segregation in the Nation’s Capital, Report of,
Segregation in W ash in gton , (Dec. 10, 1948) ............................................ 8
Newell, The L a w o f Slander and L ib el, p. 2 (4th ed. 1924) ................... 5
N ote, Grade School S e g re g a tio n : The L a te st A tta ck on Racial D is
crim ination, 61 Yale L. J. 730 (1952) ..................................................... 1 4
Odgers, L ib el and Slander, p. 16 (4th ed. 1905) .................................... 5
President’s Commission on Higher Education, Report of, H ig h er E du ca
tion f o r A m erican D em ocra cy, vol. II (Dee. 1947) ............................ 8
President’s Committee on Civil Rights, Report of, T o Secure These
R igh ts, (Oct. 29, 1947) .................................................................................. 8
President’s Message to Congress, Nov. 2, 1951, disapproving H. R. 5411,
82nd Cong. (97 Cong. Ree. 13787) ......................................................... 1 3
W ashington P o s t, p. 3-B (Oct. 14, 1951) ............................................ " 1 3
Supreme Court of tlje ®ntteii States
OCTOBER TERM, 1952
No. 8
OLIVER BROWN, et al., Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, et al, Appellees.
BRIEF OF
AMERICAN VETERANS COMMITTEE, INC. (AVC)
Amicus Curiae
The issue in this case. This case raises the issue whether
a State may require the separation, by race or color, of
pupils in the public elementary schools, where such sepa
ration retards the educational and mental development of
the Negro pupils and admittedly deprives them of educa
tional benefits available to the white pupils, even though
the physical facilities provided “ are comparable.”
The Interest of the American Veterans Committee.
The American Veterans Committee (AVC) is a nation
wide organization of veterans who served honorably in the
Armed Forces of the United States during World Wars I
and II, and the Korean conflict. We are associated to pro
mote the democratic principles for which we fought,
including the elimination of racial discrimination. Most
2
of us served overseas. There was no “ community pattern”
of racial discrimination and segregation when the chips
were down and there was only the mud, the foxholes, and
the dangers of the ocean and of mortal battle in the fight
to preserve our Nation’s democratic ideals. We believe
that the segregation here involved is of the same cloth as
the racism against which we fought in World War II, and
that its continuance is detrimental to our national welfare,
both at home and abroad.
The Facts in This Case.
Chapter 72-1724, General Statutes of Kansas, Ann.
(1949), authorizes the maintenance of “ 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. . . ” Pursuant to this statute, the City
of Topeka, Kansas, provides public elementary education
through the sixth grade in 18 schools for white children
and 4 schools for colored children. The City does not seg
regate white and colored children in the junior high schools
(beginning with the 7th grade) or in the high schools
(R. 12). The appellants, Negro parents and pupils, seek
to enjoin the appellees from denying to Negro pupils the
privilege of attending public schools within the school ter
ritory where they live, without racial segregation
(R, 7, 11).
The court below “ found as a fact” that the white and
colored elementary schools “ are comparable” insofar as
concerns “ 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” and
that “ in the maintenance and operation of the schools
there is no willful, intentional or substantial discrimina
tion in the matters referred to above between the colored
and white schools” (R. 239, 240). But the court further
found (Finding V II; R. 245-246) that:
3
“ Segregation of white and colored children in pub
lic schools has a detrimental effect upon the colored
children. The impact is greater when it has the sanc
tion 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 retain
[retard] 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.”
Notwithstanding the latter finding, however, the court
below refused to enjoin the segregation of white and col
ored children in the public elementary schools, solely be
cause the court felt that the decisions of this Court in
Plessy v. Ferguson, 163 U. S. 537 (1896) and in Gong Lum
v. Rice, 275 U. S. 78 (1927) support the constitutionality
of a segregated school system in the lower grades, and
that this Court’s decisions in Sweatt v. Painter, 339 U. S.
629 (1950) and McLaurin v. Oklahoma State Regents, 339
U. S. 637 (1950), which dealt with racial distinctions in
professional and graduate education, have not affected the
authority of Plessy and Gong Lum insofar as elementary
school education is concerned. Brown v. Board of Edu
cation of Topeka, 98 F. Supp. 797 (D. C., D. Kans. 1951).
ARGUMENT
I. Psychological Discrimination Imposed By Government
On Account of Race Violates the Constitutional Guar
antee of Equal Protection of the Laws.
Although the court below recognized that compulsory
racial segregation in public elementary schools is uncon
stitutional where the physical facilities (such as school
buildings, teachers, books, courses of study, etc.) are pro
vided unequally for white and colored pupils, it held, in
effect, that the government may constitutionally retard
4
“ the educational and mental development of Negro
children and . . . deprive them of educational benefits avail
able to white children” by imposing psychological feelings
of inferiority. The finding by the court below that com
pulsory separation by race denotes the colored child as of
an inferior group and that a “ sense of inferiority affects
the motivation of a child to learn” is supported by the
uncontradicted evidence in this case (R. 118, 155-156, 165,
169-172, 176-177), and is in accord with the scientific find
ings of many eminent psychologists and sociologists.
Deutcher and Chein, The Psychological Effect of Enforced
Segregation: A Survey of Social Science Opinion, 26
Journ. of Psych. 259 (1948); Cooper, The Frustrations of
Being a Member of a Minority Group: What Does It Do
to the Individual and to His Relationships With Other
People?, 29 Mental Hygiene 189 (1945); McLean, Psycho
dynamic Factors in Racial Relations, 244 Annals of the
Amer. Acad, of Pol. and Soc. Sci 159, 161 (Mar. 1946);
Goff, Problems and Emotional Difficulties of Negro
Children Due to Race, 19 Journ. of Negro Ed. 152 (1950);
see also authorities cited in Appendix to Appellants’ Brief
in this case. A person, whether adult or child, who is beset
by such psychological tension “ simply cannot function
efficiently” (Deutcher and Chein, supra, 272), and where
it is imposed simply because of his race he is not being
treated equally, no matter how “ equal” may be the physi
cal facilities afforded to him. Even such experts in physi
cal discrimination as Hitler’s Nazis did not disdain osten
tatious ostracism as a device to impose psychological
discrimination.
Under our Constitution and the decisions of this Court,
racism is no justification for any governmentally imposed
discrimination. This Court has consistently held that
“ 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” [Hirabayashi v. United States, 320 U. S. 81, 100
(1943)]; that “ discriminations based on race alone are
5
obviously irrelevant and invidious” [Steele v. Louisville
& Nashville R. Co., 323 U. S. 192, 203 (1944)]; and that
“ racial discrimination . . . . i s at war with our basic con
cepts of a democratic society” [Smith v. Texas, 311 U. S.
128, 130 (1940)].
The fact that the discrimination here imposed on colored
elementary school children of Topeka, Kansas, is partially
psychological and relates to community attitudes and indi
vidual feelings does not make it any less cognizable in law.
Anglo-American law has long granted judicial protection
against defamations which tend to “ disgrace” a person
or “ lower him in or exclude him from society or bring him
into contempt or ridicule.” 1 The essence of the injury is
psychological—the imposition of public obloquy and
odium, whether done with or without writing or words,
e.g., “ riding skimmington” to ridicule a henpecked hus
band publicly;- portraying a person as the Beast in a
painting of Beauty and the Beast;3 painting a man “ play
ing at cudgels with his w ife” ;4 making a drawing of a
person in a pillory;5 or setting a lamp in front of a per
son’s dwelling where the popular significance, in the social
setting and circumstances of the place and time, was to
impute reproach, odium and ignominy.6
Moreover, the numerous decisions of Southern courts
awarding damages for “ humiliation” to a white person who
lias been compelled to ride in the Negro section of a train,7
or who is excluded from an office-building elevator set
1 Newell, The L aw o f Slander and L ib e l, p. 2 (4th ed. 1924) ; Odgers, L ib el
and Slander, p. 16 (4th ed. 1905) ; Cropp v. T iln ey, 3 Salk. 225, 226, 91 Eng.
Repr. 791 (1699); B ea u h a m a is v. Illin ois, 343 U. S. 250, 254-257 (1952).
2 Mason v. Jen n in gs, Sir T. Raym. 401, 83 Eng. Repr. 209 (1680); Sir
William B olton v. D ean e, cited in A u stin v. C ulpepper, 2 Show. K. B 313 89
Eng. Repr. 960 (1682).
3 0ii B ost v. B er es fo rd , 2 Camp. 511, 170 Eng. Repr. 1235 (1810).
4 Anon., 11 Mod. 99, 88 Eng. Repr. 921, 922 (1707).
5 Austin v. C ulpepper, supra, ftnt. 2 ; Skin. 123, 90 Eng. Repr. 57 (1682).
6 Jefferies v. D u n com be, 11 East 226, 103 Eng. Repr. 991; 2 Camp. 3, 170
Eng. Repr. 1061 (1809).
7 Louisville $ N . B . Co. v. B itch el, 148 Ky. 701, 147 S. W. 411 (1912);
Missouri, K . $ T . B y . Co. v. B all, 25 Tex. Civ. App. 500, 61 S. W. 327 (1901) ;
Chicago, B . I . $ P . B y . Co. v. A llison , 120 Ark. 54, 178 S. W. 401 (1915)
6
apart for whites and is compelled to ride in an elevator set
apart for Negroes,8 or who has been called “ colored” or
“ mulatto” ,9 are all based on the proposition that strong
feelings of contempt and scorn are directly associated with
the view that Negroes have an inferior caste status and
that the compulsory segregation of Negroes is intended to
reflect such inferior caste status.
The Fourteenth Amendment was adopted precisely to
abrogate the disadvantages resulting from an inferior
caste status imposed by law. Chief Justice Taney, in the
historic decision in Dred Scott v. Scmdford, 60 IT. S. (19
How.) 393, 407 (1857), had described Negroes as having
“ for more than a century before been regarded as beings
of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and
so far inferior that they had no rights which the white
man was bound to respect.” The Fourteenth Amendment
was particularly intended to repudiate that view, and
therefore reached beyond the Thirteenth Amendment
(which abolished slavery and involuntary servitude) to
elevate the Negro to full citizenship and complete equality
before the law. It did not provide for “ second-class citi
zenship” or prescribe “ separate hut equal” treatment;
instead, it “ made the rights and responsibilities, civil and
criminal, of the two races exactly the same.” Virginia v.
Rives, 100 U. S. 313, 318 (1880) (emphasis supplied).
The contemporaneous decisions of this Court fully re
flected this understanding. In Strauder v. West Virginia,
100 IT. S. 303 (1880), this Court pointed out that the Four-
8 O ’Connor v. Dallas C otton E xch ., 153 S. W. (2d) 266 (Civ. App. Tex.
1941).
9 F lo od v. N ew s 4" Courier C o., 71 S. Car. 112, 50 S. E. 637 (1905); W olfe
y . G eorgia R y . fy F le e . C o., 2 G-a. App. 499, 58 S. E. 899 (1907); Collins v.
Okla. S ta te H o sp ., 76 Okla. 229, 184 Pac. 946 (1919); U p ton v. Tim es-D em o.
P u ll . Co., 104 La. 141, 28 So. 970 (1900) (“ outrageous wrong’ ’ ) ; Spotorno
y . Fourichon, 40 La. Ann. 423, 4 So. 71 (1888) ; S pen cer v. L oo n ey , il6 Va.
767, 82 S. E. 745 (1914) ; H a rg ro ve v. OTcla. P ress P u l l . Co., 130 Okla. 76,
265 Pae. 635 (1928) ; J on es v. R . L . P o lk # Co., 190 Ala. 243, 67 So. 577
(1915). C f. K in g v. W o o d , 1 Nott. & MeC. 184 (S. Car. 1818); A tk inson v.
H a rtley , 1 McCord 203 (S. Oar. 1821) ; E d e n v. L eg a re, 1 Bay 171 (S. Car.
1791).'
7
teentli Amendment was framed and adopted to protect the
colored people, who “ had long been regarded as an
Inferior and subject race” , against State action designed
“ to perpetuate the distinctions that had before existed”
(at p. 306). The Fourteenth Amendment granted “ a posi
tive immunity, or right, most valuable to the colored
race,—the right to exemption from unfriendly legislation
against them distinctively as colored,— exemption from
legal discriminations, implying inferiority in civil society,
lessening the security of their enjoyment of the rights
which others enjoy, and discriminations which are steps
toward reducing them to the condition of a subject race.. . .
The very fact that colored people are singled out . . . is
practically a brand upon them, affixed by the law, cm asser
tion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to individ
uals of the race that equal justice which the law aims to
secure to all others.” (pp. 307-308) (emphasis supplied).
In Ex Parte Virginia, 100 U. S. 339, 344-345 (1880), this
Court said: “ One great purpose of these amendments was
to raise the colored race from that condition of inferiority
and servitude in which most of them had previously stood,
into perfect equality of civil rights with all other persons
within the jurisdiction of the States. They were intended
to take away all possibility of oppression by law because
of race or color.” (Emphasis supplied).
Equally perceptive of the true meaning of the Four
teenth Amendment was the contemporaneous decision by
this Court in Railroad Company v. Brown, 84 U. S. (17
Wall.) 445 (1873). There, a railroad company which fur
nished a car for colored people “ equal in comfort to the
cars reserved for white people” contended that it was not
discriminating against colored people by refusing them ad
mittance to the cars reserved for white people. This Court
unanimously rejected that early manifestation of the “ sep
arate but equal” theory as “ an ingenious attempt to evade
a compliance with the obvious meaning of the requirement
8
. . . this discrimination must cease, and the colored and
white race, in the use of the cars, he placed on an
equality.” (at pp. 452-453).
Even Plessy v. Ferguson, supra, relied on by the court
below, recognized the impact of the Constitution against a
State-imposed inferior caste status. By asserting, as an
assumed fact, that segregation laws “ do not necessarily
imply the inferiority of either race to the other” (163
U. S. 537, 544, 551), Plessy indicated that segregation laws
would he unconstitutional where they in fact implied that
one race is inferior to another race. And in this case, on
the basis of full and uncontradicted evidence, the court be
low expressly found that segregation in the Topeka
elementary schools denotes the inferiority of the Negro
pupils and thereby tends to retard their educational and
mental development.
Mr. Justice Harlan’s prophetic dissent in Plessy against
“ state enactments, wdiich, in fact, proceed on the ground
that colored citizens are so inferior and degraded that they
cannot he allowed to sit” with white people (at p. 560), has
been underscored by more than 56 years of experience.
Every survey of racial segregation and every scientific
study of its effects have confirmed “ this basic fact: a law
which forbids a. group of American citizens to associate
with other citizens in the ordinary course of daily living
creates inequality by imposing a caste status on the
minority group.” To Secure These Rights, Report of the
President’s Committee on Civil Rights, p. 82 (Oct. 29,
1947). See also Gunnar Myrdal, An American Dilemma,
The Negro Problem and Modern Democracy, p. 581 (1944);
Higher Education for American Democracy, Report of the
President’s Commission on Higher Education, Vol. II,
p. 31 (Dec. 11, 1947); Segregation in Washington, Report
of the National Committee on Segregation in the Nation’s
Capital (Dec. 10, 1948).
By segregating colored children from other children in
its elementary public schools, the City of Topeka, Kansas,
9
is using governmental power to impose an inferior caste
status on the colored children. The Fourteenth Amend
ment to the Constitution “ nullifies sophisticated as well as
simple-minded modes of discrimination.” Lane v. Wilson,
307 U. S. 268, 275 (1939); Yick Wo v. Hopkins, 118 U. S.
356 (1886); Yu Cong Eng v. Trinidad, 271 U. S. 500, 525-
527 (1926); Takahashi v. Fish £ Game Commission, 334
U. S. 410, 420 (1948); Henderson v. United States, 339
U. S. 816, 825 (1950).
II. This Case is Governed by This Court’s Decisions in the
SWEATT and McLAURIN Cases, Not the PLESSY
and GONG LUM Cases.
In Sweatt v. Painter, 339 U. S. 629 (1950), this Court
ruled that the refusal to admit a qualified Negro to the
University of Texas Law School was unconstitutional even
though the State provided law school education for him
at a separate school for Negroes. This Court did not
simply compare the physical facilities of the two schools.
“ What is more important,” said this Court, are “ quali
ties which are incapable of objective measurement,” in
cluding, among others, “ standing in the community, tra
ditions and prestige,” and factors of “ isolation” from,
and “ academic vacuum, removed from the interplay of
ideas and the exchange of views” with, the dominant
majority (p. 634).
In McLa/urin v. Oklahoma State Regents, 339 U. S. 637
(1950) there was no question as to the equality of the phys
ical facilities provided for white and colored students. Mc-
Laurin used “ the same classroom, library and cafeteria
as students of other races,” but was assigned to a seat or
table designated for colored students (p. 640). This Court
ruled that restrictions setting the colored student “ apart
from the other students----- impair and inhibit his ability
to study, to engage in discussions and exchange views with
other students, and” (p. 641) “ -----under these circum
10
stances the Fourteenth Amendment precludes differences
in treatment by the state based upon race” (p. 642).
The logic and thrust of the Sweatt and McLaurin deci
sions cannot justifiably be restricted to professional and
graduate schools or to any other level of public education.
Any restriction in public institutions of learning, based on
race, which retards educational and mental development
of a student is as unconstitutional in an elementary school
as at any other level of public education. Indeed, the con
stitutional right to freedom from such restrictions is even
more important at the elementary level where the growing
twig is being shaped. If racial restrictions are permitted
to deform the student’s mind and personality in his early
stages of education, he cannot in later life hope to compete
on an equal basis, either at the unrestricted graduate level
or elsewhere, with those not so retarded. (Cf. R. 172). The
Sweatt and McLaurin decisions therefore require the
elimination in this case of that factor— racial segregation—
which produces educational handicaps for the colored
pupil vis-a-vis the white pupil.
This case is not governed by Plessy v. Ferguson, 163
U. S. 537 (1896) or Gong Lum v. Rice, 275 U. S. 78 (1927).
If, as held by the court below, the decisions in Sweatt
and McLaurin are not applicable to racial segregation at
the elementary school level (as here), simply because the
racial segregation in those cases was in professional and
graduate education, then Plessy is wholly irrelevant to this
ease. First, the “ only issue made” in that case was as to
segregation in transportation, not in schools (p. 549).
Second, Plessy did not sanction a general standard of
racial segregation as such. The Plessy standard was that
only reasonable distinctions based on race are constitu
tional. It regarded as unreasonable, and therefore uncon
stitutional, any law “ requiring colored people to walk
upon one side of the street, and white people upon the
other, or requiring white men’s houses to he painted white,
and colored men’s black, or their vehicles or business signs
11
to be of different colors, upon the theory that one side of
the street is as good as the other, or that a house or vehicle
of one color is as good as one of another color” (pp. 549-
550). Third, the dicta as to schools were intended only
to show that segregation in transportation was less “ ob
noxious” than segregated schools “ the constitutionality
of which does not seem to have been questioned” (p. 551)
and that segregated schools had not then been outlawed by
State court action (pp. 544, 545). The insubstantiality of
that dicta is emphasized by the absence of any evidence in
that case as to either (a) the reasonableness of the dis
tinction or (b) the inequalities resulting therefrom. In
this case, however, the evidence shows both the unreason
ableness of the distinction and the resultant inequalities.
Gong Turn, involved only the question whether the word
“ colored” in the Mississippi constitution requiring sepa
rate schools for “ white and colored” children applied to
children of Chinese ancestry as well as to Negro children.
The plaintiff there expressly agreed with the desirability
and legality of segregating Negro and white children, and
claimed only that a Chinese child should be classified as
“ white” in order to protect the Chinese child from the
“ risks and dangers” of association with Negro children
(pp. 10, 14, 16, Brief of Plaintiff in Error, No. 29, Oct.
Term, 1927; 275 U.S. 78-79). The Court assumed that the
schools for Negro children were equal to those for white
children and ruled only that the question of classification
of a person was not one meriting “ full argument and con
sideration” (pp. 85-86). Gong Lum did not involve the
constitutionality of separating children by race in the pub
lic schools where such separation is shown, as here, to
retard the educational and mental development of children
of the minority group.
12
III. The Segregation in This Case Cannot Be Supported
Under Any Proper Test. And Even if the PLESSY
Rule of “Reasonable” Segregation Has Any Vitality,
the Segregation Here is Unreasonable and Should Be
Enjoined.
This Court has consistently ruled that the “ ultimate test
of validity” of most statutes is whether they are pertinent
and have a rational relationship to a legitimate legislative
objective. Asbury Hospital v. Cass County, 326 U. S. 207,
214 (1945); Sage Stores Co. v. Kansas ex rel. Mitchell, 323
U. S. 32 (1944); Metropolitan Casualty Ins. Co. v. Brown
ell, 294 U. S. 580, 583 (1935). Where the statute restricts
personal rights and liberties, more is required—this Court
will “ weigh the circumstances and . . . appraise the sub
stantiality of the reasons advanced in support of the” re
striction. Schneider v. State, 308 U. S. 147, 161 (1939);
Thornhill v. Alabama, 310 U. S. 88, 96 (1940); cf. Minne
sota v. Barber, 136 U. S. 313, 320 (1890); Nectow v. Cam
bridge, 277 U. S. 183, 188 (1928). The requirements be
come even greater with respect to “ legal restrictions which
curtail the civil rights of a single racial group; ’ ’ such re
strictions “ are immediately suspect” and are subjected to
“ the most rigid scrutiny.” Korematsu v. United States,
323 IT. S. 214, 216 (1944); Tahahashi v. Fish & Game
Comm., 334 U. S. 410, 420 (1948). Indeed, this Court has
said: “ 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 cannot he made
the basis for a statutory classification affecting the right
set up in this case.” Nixon v. Herndon, 273 U. S. 536, 541
(1927). And at the last Term, this Court emphasized that
‘ ‘ a requirement of color, as we have pointed out before, is
not reasonably related to any legitimate legislative objec
tive.” Ray v. Blair, 343 IT. S. 214, 226, ftnt. 14 (1952).
Under none of these tests can the racial restriction in
this case he sustained. There is no evidence that segrega
tion in the first six grades is pertinent to or has a rational
1 3
relationship to any legitimate legislative objective. Nor
are there substantial reasons shown to support this segre
gation as a necessary measure to prevent any important
and substantial harm, either to the community, to efficient
public education, to the white children, or to anyone else.
Prejudice and private social views are obviously insuf
ficient legal justification for the racial restriction. No one
has the right to demand that the government discriminate,
by exclusion or segregation or otherwise, against other
citizens in the use of a public facility, simply on account of
their race or color, merely because he does not wish to as
sociate with them. McLaurin v. Oklahoma State Regents,
339 U. S. 637, 641 (1950); Ferguson v. Gies, 82 Mich. 358,
367-368, 46 N. W. 718, 721 (1890); Shelley v. Kraemer, 334
U. S. 1, 19 (1948).
There is not even a serious assertion of possible race
conflict if integration occurs, an assertion which usually
accompanies the “ convenient apologetics of the police
power” evoked in race litigation. Morgan v. Virginia, 328
U. S. 373, 380 (1946); Shelley v. Kraemer, 334 U. S. 1, 21
(1948). The fear of race conflict is, of course, an insuffi
cient legal basis for depriving a person of his constitu
tional rights by racial segregation. Buchanan v. Warley,
245 U. S. 60, 81 (1917); City of Birmingham v. Monk, 185
F. (2d) 859 (C.A. 5th, 1950), cert. den. 341 U. S. 940 (1951);
Mitchell v. United States, 313 U. S. 80, 97 (1941). The
problem of potential race conflict, if any, should instead be
solved by education and by enforcing without racial dis
crimination the laws against violence and disorderly con
duct. But any uneasiness on this score is wholly dissipated
when we observe the success of integration in the Topeka
public schools beyond the sixth grade, the happy experience
of the integrated elementary schools on Federal areas
throughout the South,10 and the current experience in many
10See W ash in gton P o s t , p. 3-B (Oct. 14, 1951); c f. President Truman’s
pocket veto of Enrolled Bill H. R. 5411, 82nd Cong, because it would have re
quired segregation in these now integrated public elementary schools in the
South. Message to Congress, Nov. 2, 1951, 97 Cong. Bee. 13787-13788.
IN THE
Olmtrt nf tty States
OCTOBER TERM, 1954
Nos. 1, 2, 3, and 4
OLIVER BROWN, ET A L „
Appellants,
v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, ET AL.,
On Appeal from the United States District Court
for the District of Kansas
H ARRY BRIGGS, JR., ET AL.,
Appellants,
v.
R. W. ELLIOTT, ET AL.
On Appeal from the United States District Court
for the Eastern District of South Carolina
DOROTHY E. DAVIS, ET AL.,
Appellants,
v.
COUNTY SCHOOL BOARD OF PRINCE EDW ARD
COUNTY, VIRGINIA, ET AL.
On Appeal from the United States District Court
for the Eastern District of Virginia
FRANCIS B. GEBHART, ET AL.,
Petitioners,
v.
ETH EL LOUISE BELTON, ET AL.
On Writ of Certiorari to the Supreme Court of Delaware
BRIEF OF JOHN BEN SHEPPERD,
ATTORNEY GENERAL OF TEXAS, AMICUS CURIAE
JOHN BEN SHEPPERD
Attorney General o f Texas
BURNELL W ALDREP
BILLY E. LEE
J. A. AMIS, JR.
L. P. LOLLAR
J. FRED JONES
JOHN DAVENPORT
JOHN REEVES
W ILL DAVIS
Assistants
Amicus Curiae
TABLE OF CONTENTS!
Page
PRELIMINARY STATEMENT____________________ 2
Variance of Degree in Which Different Areas
Would be Affected_____________________________ 6
Texas Public School System______________________ 9
QUESTION FOUR__________________________________ 12
Argument_________________________________________ 12
QUESTION FIVE____________________________________ 24
A rgum ent____________________________________ 25
CONCLUSION ______________________________________ 28
APPENDICES
APPENDIX I
Map showing concentration of Negro population
by counties as shown by the 1950 Federal census.
APPENDIX II
Map showing the number and percentage of
Negro scholastics in each county as shown by the
1954-1955 scholastic census.
APPENDIX III
Map showing the concentration of Negro scholas
tics in general areas, as shown by the 1954-1955
scholastic census.
APPENDIX IV
Questionnaire and evaluated answers relating to
views of public school administrators on the prob
lems involved in integration.
APPENDIX V
Alphabetical listing of counties, showing relation
ship of Negro to white scholastics as based on
the 1954-1955 scholastic census.
l.
TABLE OF AUTHORITIES
CASES: Page
Addison v. Holly Hill Co., 322 U.S. 607 (1944)-------- 27
Alabama Public Service Commission v. Southern Rail
way Company, 341 U.S. 341 (1951)---------------------- 22
Barbier v. Connolly, 113 U.S. 27 (1885)----------------- 23
Board of Education v. Barnette, 319 U.S. 624 (1942) 26
Burford v. Sun Oil Co., 319 U.S. 315 (1943)----------- 22
Cumming v. Richmond County Board of Education,
175 U.S. 528 (1899)_____________________________ 3
Far Eastern Conference, United States Lines Co.,
States Marine Corporation, et al. v. United States
and Federal Maritime Board, 342 U.S. 570 (1952) 22
Georgia v. Tennessee Copper Co., 240 U.S. 650 (1916) 21
Hatcher v. State, 125 Tex. 84, 81 S.W. 2d 499 (1935) 14
International Salt Company v. United States, 332
U.S. 392 (1947)__________________________________ 27
Love v. City of Dallas, 120 Tex. 351, 40 S.W. 2d 20
(1931) __________________________________________ 14
Minersville School District v. Gobitis, 310 U.S. 586
(1940) __________________________________________ 26
New Jersey v. City of New York, 283 U.S. 473 (1931) 21
Northern Securities Company v. United States, 193
U.S. 197 (1904) __________________________________ 21
Plessy v. Ferguson, 163 U.S. 537 (1896)-------------------- 3
Railroad Commission of Texas v. Pullman Company,
312 U.S. 496 (1941)_____________________________ 21
Southwestern Broadcasting Company v. Oil Center
Broadcasting Company, 210 S.W. 2d 230 (Tex. Civ.
App., 1947, error ref. N.R.E.)___________________ 13
Standard Oil Co. v. United States, 221 U.S. 1 (1911) 21
United States v. American Tobacco Co., 221 U.S. 106
(1911) __________________________________________ 20
li.
A uthorities
Page
United States v. Cruikshank, 92 U.S. 542 (1876)___ 5
United States v. Paramount Pictures, 334 U.S. 131
(1 9 4 8 )___________________________________________ 22
University Interscholastic League v. Midwestern Uni
versity, ___Tex____ , 255 S.W. 2d 177 (1953)_____13
STATUTES AND CONSTITUTION:
Texas Constitution (Vernon 1948) Art. VII, Sec. 1 25
Texas Constitution (Vernon 1948) Art. VII, Sec. 7 2
Texas Civil Statutes (Vernon 1948) Articles 2745,
2749, 2775, 2780____________________________________ 13
Texas Civil Statutes (Vernon 1948) Articles 2750a,
2781 __________________________________________ 14
Texas Civil Statutes (Vernon 1948) Article 2784e__ 13
Texas Civil Statutes (Vernon 1948) Article 2786_ 13
Texas Civil Statutes (Vernon Supp. 1950) Article
2922-11 et seq._______ _________________________9
MISCELLANEOUS:
Texas Poll, September 12, 1954____________________ 16
Texas State Board of Education Resolution, July 5,
1954 __________________________________________ 19
The Dallas Morning News, June 9, 1954___________ 14
U. S. News and World Report, August 27, 1954_____ 10
i m WBmi ■ •
-
IN THE
&npvtm? (Emtrl o f tijr Httitpft
OCTOBER TERM, 1954
Nos. 1, 2, 3, and 4
OLIVER BROWN, ET AL.,
Appellants,
v.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, ET AL.,
On Appeal from the United States District Court
for the District of Kansas
HARRY BRIGGS, JR., ET AL.,
Appellants,
v.
R. W. ELLIOTT, ET AL.
On Appeal from the United States District Court
for the Eastern District of South Carolina
DOROTHY E. DAVIS, ET AL.,
Appellants,
v.
COUNTY SCHOOL BOARD OF PRINCE EDWARD
COUNTY, VIRGINIA, ET AL.
On Appeal from the United States District Court
for the Eastern District of Virginia
FRANCIS B. GEBHART, ET AL.,
Petitioners,
v.
ETHEL LOUISE BELTON, ET AL.
On Writ of Certiorari to the Supreme Court of Delaware
BRIEF OF JOHN BEN SHEPPERD,
ATTORNEY GENERAL OF TEXAS, AMICUS CURIAE
— 2—
TO THE HONORABLE SUPREME COURT OF THE
UNITED STATES:
PRELIMINARY STATEMENT
John Ben Shepperd, Attorney General of Texas,
pursuant to request for leave to appear amicus curiae
and file a brief, submits this amicus curiae brief to
the Court upon the condition that such appearance
will not have the effect of making the State of Texas
or any of its officers or agencies parties to this litiga
tion.
In compiling data for this brief a sincere effort
has been made to obtain a correct cross section of
views of educators, legislators and others with knowl
edge of the subject matter under consideration. Sur
veys have been made, public opinion has been sam
pled, and composite views of groups best acquainted
with the segregation problem have been obtained.
The Texas Education Agency has been most helpful
in furnishing pertinent materials which have been
used in this brief. We will attempt to present the
true Texas picture as reflected from this research.
The public school system in Texas from its incep
tion has been operated and maintained on a segre
gated basis, and has existed for more than eighty-
years under the authority of Section 7 of Article VII
of the Texas Constitution (1876)1 and statutes en
acted pursuant thereto. This constitutional and stat
utory authority creating separate but equal facilities
1 Section 7 of Article VII of the Texas Constitution pro
vides : “ Separate schools shall be provided for the white and
colored children, and impartial provision shall be made for
both.”
in the public school system of Texas was the direct
and continuing result of the expressed will of the
people of Texas. This Honorable Court in many of
its decisions has held that the states may provide
education at their own expense for the white and
Negro students in separate schools so long as equal
facilities and advantages are offered both groups.
Plessy v. Ferguson, 163 U.S. 537 (1896), and related
cases. Stability and harmony in the law, particularly
in the constitutional law, is a primary requirement
in an effective and efficient government. When the
courts have announced, for the guidance and govern
ment of individuals and the public, certain con
trolling principles of law, they should not be changed,
because the law by which men are governed should be
fixed, definite and known, particularly when millions
of dollars have been spent in reliance thereon. At
tending a public free school is a privilege extended
by the state. It is not a right of a citizen of the United
States. Cumming v. Richmond County Board of Edu
cation, 175 U.S. 528, 545 (1899). So long as the
privileges extended to all groups are equal no one
is deprived of the equal protection of the law. The
decisions of this Honorable Court have recognized
that, where necessity exists, the teaching of white
and Negro students in separate classrooms is a rea
sonable exercise of the state’s police power. To pre
serve the public peace, harmony and the general wel
fare, the people of Texas in their Constitution, and
the Legislature by statutes have declared that such
a necessity exists in Texas. There is no discrimina
tion on the part of the State of Texas in administer
ing its public school system, only separation of the
Variance of Degree in Which Different Areas
Would Be Affected
In order that this Honorable Court have the full
assistance of all parties and amici curiae in formu
lating decrees, these cases were restored to the docket
for the presentation of further argument upon the
following questions:
“ 4. Assuming it is decided that segregation
in public schools violates the Fourteenth Amend
ment
(a) would a decree necessarily follow pro
viding 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 ad
justment to be brought about from existing seg
regated 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 described in question 4 (b ),
(a) should this Court formulate detailed de
crees in these cases;
(b) if so, what specific issues should the de
crees reach;
(c) should this Court appoint a special mas
ter to hear evidence with a view to recommend
ing specific terms for such decrees;
(d) should this Court remand to the courts
of first instance with directions to frame de
crees in these cases, and if so, what general di
rections 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?”
The following factual information is submitted
which we believe to be pertinent insofar as the State
of Texas is concerned.
The State of Texas has a total population of seven
million, seven hundred eleven thousand, one hundred
ninety-four (7,711,194), of whom nine hundred
seventy-seven thousand, four hundred fifty-eight
(977,458), or 12.7%, are colored.2 The concentration
of the Negro population is shown by counties on the
map designated “Appendix I.” There are one million,
seven hundred eighty-six thousand, nine hundred
eighteen (1,786,918) persons of scholastic age enum
erated in the scholastic census for the 1954-1955
school year, of whom two hundred thirty thousand,
five hundred forty-six (230,546), or 13%, are col
ored. The concentration of the Negro scholastic popu
lation is shown by counties on the map designated
“Appendix II.” Texas has two hundred fifty-four
(254) counties. There are located in the northeastern
forty-five counties of this State 50% of the colored
scholastics of Texas, and in four of these counties the
Negro scholastics comprise a majority of the coun
ty’s scholastics. In the forty-three counties adjacent
to and immediately west of the northeastern block of
counties above referred to, another 40% of the col
ored scholastics reside. Thus, in Texas today ap
2 This population is based on the 1950 Federal Census.
— 8—
proximately 90% of the total Negro scholastics are
located in the eighty-eight counties comprising the
northeastern quadrant of the State. Forty-one Texas
counties do not list a single Negro scholastic. There
fore the remaining 10% of the colored scholastics of
Texas are scattered throughout the remaining one
hundred and twenty-five counties. A map evidencing
this factual information is attached and designated
“Appendix III” , to which particular reference is
made. A study of this map reveals that the segrega
tion problem in Texas is not state-wide, but is of
serious import and of vital concern to our local school
districts.
Of the two hundred and thirteen Texas counties
listing Negro scholastics, one hundred forty-six coun
ties offer a complete Negro high school, twenty-one
counties offer some Negro high school, but not twelve
grades, and thirty-six counties offer only Negro
elementary school. Ten counties operate no school for
Negroes; however, these counties have ten or fewer
Negro scholastics. Negro scholastics in counties not
having a complete twelve grades are transported at
State expense to other schools. Texas in 1953-54 had
a total of one thousand, nine hundred fifty-three
(1,953) active school districts, two hundred ninety-
two (292) of which offered a full twelve grade school
for both white and Negro. One hundred twenty-five
(125) districts maintained a Negro school but did
not have a white school. A total of nine hundred fifty-
six (956) districts provided Negro schools. The dis
tricts that did not maintain a school for Negroes
were primarily in areas that did not contain Negro
scholastics.
— 9—
Texas Public School System
Pursuant to the constitutional authority, the Texas
public school system is administered under what is
commonly called “ The Minimum Foundation School
Program.” 3 Under this very effective program, edu
cation of the Texas school child is provided on an
equal but separate basis, with millions of dollars be
ing spent each year. Under the Minimum Foundation
Program, as administered by Texas’ twenty-one-
member elective State Board of Education, all pos
sible control and responsibility are left to local school
administrators and local school boards to provide
school programs to meet the needs of the children
in their communities. As the name implies, the Mini
mum Foundation Program guarantees to every
school-age child in Texas, regardless of race, creed,
color, economic status or place of residence, at least
a minimum of a full nine months of schooling each
year, thereby spreading the State’s financial re
sources available for public education as equally as
possible among all the people. The Program has been
in effect for five years, and during that time the aver
age daily attendance of school-age children actually
attending school has risen from 73.77% in 1948-49
to 80.85% during 1953-54. 79.31% of the Negro
school-age children were in average daily attendance
in 1953-54.
The Minimum Foundation Program provides a
system of financing which guarantees to local school
districts that State funds will be available to pay the
3 Art. 2922-11, et seq., Tex. Civ. Stat. (Vernon’s, 1948).
1 0 -
cost of a minimum school program when local funds
are insufficient.
A number of the Texas school districts do not need
a supplemental appropriation from the Legislature.
A majority of the Texas schools have surplus money
derived from local taxation with which to enrich the
local school program beyond the minimum program
prescribed by the State. Expenditures from surplus
funds provide adult and kindergarten classes for
students not included in the scholastic census age
brackets, classes for exceptional children, supple
mental expenditures on salaries, maintenance and
capital costs, and any other authorized school costs.
The State funds are provided in proportionate equal
ity to all school districts, for the benefit of all scholas
tics, irrespective of race, creed or color. If a school
program superior to the minimum requirements is
desired in any district, it may be paid for by the
taxes voted, levied and collected from the taxpayers
of the district.
As a result of the Minimum Foundation Program,
teachers’ and school administrators’ salaries have
risen from twenty-ninth in the nation to sixteenth.
97.1% of the Texas teachers now have college de
grees. Only the State of Arizona exceeds this mark.
There are approximately eight thousand, five hun
dred (8,500) Negro teachers and school administra
tors in Texas. This number is nearly equal to the
total number of Negro educators in the thirty-one
Northern and Western States which practice non
segregation. According to the U. S. News and World
Report, August 27, 1954, only one out of every
seventy-three teachers in those thirty-one states
— 11—
maintaining an integrated system is a Negro, while
in Texas, one out of every five is a Negro. These posi
tions are believed to be the most secure and best paid
employment the Negro has today. The effect of this
decision upon the teaching profession is speculative,
and any decree which would disrupt the stability and
security of teachers should be avoided.4
Under the Minimum Foundation Program, the
public school system of Texas has greatly raised its
standards, teachers have been benefited by salary in
creases and retirement plans, and every school-age
child in Texas, without regard to his race, creed or
color, has been offered the opportunity of education.
The State has not discriminated in its appropria
tions, such being provided equally to all races and
persons, with the privilege and authority in each
local district to go further if it is so desired. But the
program does provide for separate schools, segregat
ing the races and contemplating an equalization of
facilities for all scholastics. Integration would re
quire alteration of the Minimum Foundation Pro
gram.
The establishment of an integrated system is not
a problem which would apply equally to West or
South Texas, where there is only a small percentage
of the Negro population, and to Northeast Texas,
where the concentration of the Negro population is
the heaviest. No equitable general decree could ever
be formulated for the entire State of Texas. Specific
decrees could be made only after a particular school
4 Texas at the present time has no tenure statute for
teachers in the public free schools. Employment is through
the local school boards.
- 1 2 -
district was before this Court and the facts relevant
to that district were presented. It would be impos
sible to get enough facts before the Court in one
isolated case upon which the Court could enter a
general decree which would apply equally to all parts
of this State or to all the states practicing segrega
tion. Since we do not know the various fact situa
tions as they exist in these cases, we are in no posi
tion to advise the Court as to the type of decree that
should be entered.
QUESTION FOUR
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 exist
ing segregated systems to a system not
based on color distinctions?
Argument
This Court has recognized the complexities in
volved in the formulation of a decree in these cases
because problems of different characteristics are pre
sented. Evidently all states were invited to appear
— 13—
because each should have an opportunity to demon
strate the obstacles to adjustment in compliance with
any decision that might be rendered in the future
affecting the individual states.
It is respectfully submitted that this Court is au
thorized to permit an effective gradual adjustment
toward integration and, unquestionably, if the oc
casion arises, the administration of this program in
Texas must be left to the local school districts. The
education system in Texas is predicated upon a num
ber of local, self-governing school districts, with full
authority to administer the school system. The basic
and historic concept of public free schools is based
upon the democratic and salutary principle of local
self-government. The schools in Texas are operated,
maintained and controlled by local school boards
elected by the people of the individual school district.5 6
Operational and maintenance costs are provided by
local taxation voted by the taxpayers of the district0
and supplemented by the Legislature under the Mini
mum Foundation Program.7 Capital expenditures
are made through bond issues voted by the taxpayers
of the district.8 All personnel of the school, with the
exception of the elected officials, are employed by local
5 Southwestern Broadcasting Company v. Oil Center
Broadcasting Company, 210 S.W. 2d 230 (Tex. Civ. App.,
1947, error ref. N.R.E.) ; University Interscholastic League
v. Midwestern University, ___ Tex. ___, 255 S.W. 2d 177
(1953) ; Arts. 2745, 2749, 2775 et seq., and 2780, Tex. Civ.
Stat. (Vernon’s, 1948).
6 Art. 2784e, Tex. Civ. Stat. (Vernon’s, 1948).
7 See discussion of the Texas Public School System in this
brief.
8 Art. 2784e and Art. 2786, Tex. Civ. Stat. (Vernon’s,
14-
officials and work under such officials’ supervision.9
It is thus seen that the schools in Texas constitute
almost a complete local autonomy controlled by the
taxpayers of the individual school districts and their
locally elected school board. In fact, the courts of
Texas have repeatedly held that these school districts
are local public corporations of the same general
character as municipal corporations.10 Any decree of
the Court that might affect Texas must leave this
administration in the local school districts unham
pered. The problems with which we are confronted
can best be resolved at the local level in this manner.
As a basic premise for showing the need for a tran
sition period, the following is typical of the feeling
of Texas citizens and school administrators on the
vital subject now before this Court.
In an article appearing in The Dallas Morning
News on June 9, 1954, Dr. J. W. Edgar, Texas Com
missioner of Education, stated:
“ Texas has 2,000 problems as a result of the
Supreme Court’s decision. We have 2,000 school
districts, and they vary from totally white to
totally Negro.
“ The final decree by the Court ought to per
mit continued management of local districts by
local boards. Schools must be run on a commun
ity basis. They can’t be run successfully from
Washington or even from Austin (Texas).
“ Experience in separating children on a lan
guage basis has proved to us that where the re
9 Art. 2750a and Art. 2781, Tex. Civ. Stat. (Vernon’s,
1948).
10 Hatcher v. State, 125 Tex. 84, 81 S.W. 2d 499 (1935) ;
Love v. City of Dallas, 120 Tex. 351, 40 S.W. 2d 20 (1931).
— 15—
sponsibility is put upon the local community,
they work honestly to resolve differences.
“Anything which schools do effectively must
be done with local support. We don’t care to tell
others how to run their schools, but we certainly
believe that our 2,000 problems can be resolved
best if the Supreme Court leaves control in local
districts.”
In a statement made to the Texas Commission on
Higher Education, Dr. R. O’Hara Lanier, Negro
president of Texas Southern University, stated:
“ In spite of the U. S. Supreme Court’s anti
segregation ruling, Negro schools will be needed
more than ever in the future. It would be a nar
row position for the state to get rid of Negro
schools for if the Negroes are given equal fa
cilities there is nothing to worry about from seg
regation.
“ For many years to come there will be shown
a great desire and preference on the part of the
Negro student to attend an institution equal in
every respect, where there will exist many op
portunities for development for qualities of
leadership and where full participation in every
phase of college life will be assured.
“ Because of human behavior and social back
grounds and patterns long existent, the large
majority of such students will come to us (the
Negro schools) because they prefer to do so.
“ Such students very likely will prefer to con
tinue to study with homogeneous groups and
will feel strongly that more sympathetic atten
tion will be given to them in our institutions
than in some other schools.”
Dr. E. B. Evans, Negro president of Prairie View
A. & M. College, expressed similar views to the Com
mission.
— 1 6 —
The latest state-wide survey of the Texas Poll11
on September 12, 1954, indicates:
“ 1. 71% of the Texas people are definitely op
posed to the Supreme Court’s decision. The
breakdown on the decision is like this:
Approve Disapprove Undecided
Negroes 60% 33% 7%
Latins 49% 37% 14%
Other Whites 15% 80% 5%
Entire Public 23% 71% 6%
“2. What should be done about the problem?
7% favor putting the Court’s ruling into effect
immediately, and another 23% believe plans
should be made to bring the races together in
the schools within the next few years. A ma
jority of 65% goes on record in favor of con
tinued segregation notwithstanding the Court’s
decision. The breakdown on this problem is:
Go Few Keep Un
Now Years Apart decided
Negroes 27% 40% 26% 7%
Latins 20% 37% 33% 10%
Other Whites 3% 19% 74% 4%
Entire Public 7% 23% 65% 5%
In the entire public, Negroes account for about
12% of the population; Latins, about 11%; and
other whites, about 77%.”
In a recent questionnaire forwarded by the At
torney General of Texas to approximately one hun
11 A long-established Texas organization operated by Joe
Belden who periodically and systematically conducts a scien
tific sampling, or polling, and reporting thereon, of public
opinion in Texas on current events.
— 17—
dred fifty-two Texas school administrative officials,
seventy-seven reported that 85% or more students
would continue attending the same school if they
had free choice. Of this number, fourteen answers
were from Negro administrators. Only three an
swered that students in their districts would prefer
attending integrated schools, and all three reports
were from Negro administrators. The questions pro
pounded and the answers received by the Attorney
General are compiled in a report which is attached as
“Appendix IV.”
Many plans have been advanced to alter the public
school system of Texas as a result of the May 17th
decision. Some go so far as to suggest the complete
abolition of the free public school system, while
others advocate turning the State schools into pri
vate schools. The decision of the United States Su
preme Court is to the effect that segregation in public
schools maintained by compulsion of law is uncon
stitutional as being in violation of the Fourteenth
Amendment. Many suggest that it does not neces
sarily follow that integration of the white race with
the colored race in the field of education is compelled
by the Constitution. If, under the Fourteenth Amend
ment, all citizens are entitled to equal protection of
the law, which was the premise for the Supreme
Court’s decision, then integration can no more be
compelled than can segregation. Provision for do
mestic tranquility in the exercise of the police pow
ers of the State premised the original laws requiring
segregation. To maintain public peace, good order
and the domestic tranquility, these same police pow
— 18—
ers of the State could be exercised, calling for another
and different provision relating to public education.
Realizing this, and that the need for compulsion no
longer exists, another plan suggests that the section
of the law which provides for compulsory education
should be repealed and the laws providing that the
State furnish free education to all should be left
undisturbed. Then the present laws should be
amended to allow the parent or guardian of the child
desiring to take advantage of free education to ex
press his own desires and preferences as to the type
of school the child should attend. The parent or
guardian could select a school in which the majority
of the other pupils are of the same race as the child,
or he could select a school in which the other pupils
are of both races, thereby providing equality of op
portunity and freedom of individual choice.
This change would remove the unconstitutional
“ compulsion” of segregation, and at the same time
the State would be in a position of honoring the in
dividual preferences of its people.
Another plan advanced is that of allowing volun
tary transfers between school districts, and it is
based upon the same principle as the foregoing.
In complying with the mandatory duties placed
upon the Legislature of the State of Texas by the
Constitution of the State of Texas, the Legislature
has by general law established, supported and main
tained a segregated public free school system. These
laws of the State of Texas are not before the Court
in these causes, and the State Board of Education has
ruled that the schools of Texas should continue to
be operated in the same manner until otherwise di-
— 19—
reefed.12 Since the end of World War II, Texas, to
gether with many of our states, has been confronted
with the enormous task of providing adequate school
housing for a shifting and rapidly increasing popu
lation. In areas predominantly populated by white
students schools have been built to house these stu
dents. In areas predominantly populated by colored
students schools have also been built to house them.
Utilization of all present school housing to the fullest
extent in this State will be an absolute necessity.
Texas is also confronted with the difficult problem
of providing adequate facilities for the anticipated
increase in its scholastics in the interim between now
and 1960. Statistics reveal that at the close of the
1958-1959 school year, eight hundred forty-nine mil
lion, three hundred forty-four thousand, nine hun
dred twenty-two dollars ($849,344,922) will be
needed over and above the present needs to care for
the increase in population and replacement costs on
existing facilities. Of this amount, only three hun
dred ninety-four million, eight hundred fifty-eight
thousand, fifty-two dollars ($394,858,052) can be
anticipated from local funds, leaving a balance of
four hundred fifty million, four hundred eighty-six
12 On July 5, 1954, the State Board of Education passed
the following resolution: “Since the recent United States
Supreme Court’s decisions on segregation in public schools
are not final, the State Board of Education of Texas is of
the unanimous opinion that it is obligated to adhere to and
comply with all of our present state laws and policies provid
ing for segregation in our public school system and to con
tinue to follow these present laws and policies until such
time as they may be changed by a duly constituted authority
of this State. If in the future, the Texas laws should be
changed then each local district should have sufficient time
to work the problem out. . . .”
■ 2 0 -
thousand, eight hundred seventy dollars ($450,486,-
870) which must be derived from another source to
care for the needs of the school children for the school
year of 1960. The school system is presently over
crowded with certain school-age groups being sep
arated into morning and afternoon classes to offset
this condition. It can readily be seen that if Texas
attempted an immediate integration, the perplexi
ties confronted in accomplishing the same would be
overwhelmingly multiplied. Additional facilities are
needed and will have to be supplied by local bond
issues. It is highly speculative as to whether such
bond issues would be voted to house an integrated
school system which an overwhelming majority of
the people oppose. The election calls for freedom of
choice and no mandamus action could be maintained
to force an affirmative vote. At this time it would be
highly impracticable to eliminate any of the present
school housing, and great consideration must be given
to the natural and presently existing boundary lines
which, of course, is the prime consideration for the
Legislature or the local school board.
A gradual transition to an integrated public school
system is not a denial of relief or of the constitu
tional rights enunciated by the Court. The Court has
previously permitted a transition period in analogous
situations, particularly in the antitrust and nuisance
cases. In United States v. American Tobacco Co., 221
U.S. 106 (1911), the Supreme Court determined that
the defendant had violated the Sherman Anti-Trust
Act. Recognizing the need for adjustment to its de
cree, the Court, in order to avoid and mitigate any
possible injury to the interest of the general public,
— 21—
remanded the case to the lower court to hear the par
ties and to ascertain and determine a plan for dis
solution of the combination. To accomplish this end,
the Court allowed sufficient time (eight months) to
carry out its decree. In Georgia v. Tennessee Copper
Co., 240 U.S. 650 (1916), the Court entered a final
decree in a case in which the State of Georgia had
sued the Tennessee Copper Company to restrain the
discharge of irritating gases into Georgia. The case
had involved three lawsuits and covered a span of
nine years in which the Court allowed considerable
time and discretion to devise ways and means of
subduing and preventing the escape of the noxious
fumes. In Railroad Commission of Texas v. Pullman
Company, 312 U.S. 496 (1941), the Pullman Com
pany brought suit in the Federal Court against the
Railroad Commission of Texas attacking a regula
tion of the Commission as being in violation of the
Federal Constitution and unauthorized by the Texas
statutes. The Court remanded the case to the lower
court, with directions to retain the bill pending a
determination of proceedings, to be brought within
a reasonable time in the state court to determine a
definite construction of the state statute.13
The use of administrative discretion and its limits
has been spelled out often by the Court in the areas
of administrative agencies. The Court has empha
sized consistently that supervision and discretion
should lie with the administrative agencies in con
ducting their functions as economic and political gov
13 See also: New Jersey v. City of New York, 283 U.S. 473
(1931) ; Standard Oil Co. v. United States, 221 U.S. 1
(1911); Northern Securities Company v. United States, 193
U.S. 197 (1904).
— 22—
erning boards.14 Such emphasis is closely related also
to the administrative discretion which exists in
school boards. In United States v. Paramount Pic
tures, 334 U.S. 131 (1948), Mr. Justice Douglas re
viewed a decree in an injunction suit by the United
States under the Sherman Act to eliminate or qualify
certain business practices in the motion picture in
dustry. A provision in the decree that films be li
censed on a competitive bidding basis was eliminated
by the Supreme Court as not likely to bring about the
desired end and as involving too much judicial super
vision to make it effective. This elimination was held
to require reconsideration by the district court of
its prohibition of the expansion of theatre holdings
by distributors and provisions for divesting exist
ing holdings.
The Court at page 163 stated:
“ It would involve the judiciary in the admin
istration of intricate and detailed rules govern
ing priority, period of clearance, length of run,
competitive areas, reasonable return and the
like. The system would be apt to require as close
a supervision as a continuous receivership, un
less the defendants were to be entrusted with
vast discretion. The judiciary is unsuited to
affairs of business management; and control
through the power of contempt is crude and
14 See Alabama Public Service Commission v. Southern
Railway Company, 341 U.S. 341 (1951) ; Bur ford v.
Sun Oil Co., 319 U.S. 315 (1943); and Far Eastern Con
ference, United States Lines Co., States Marine Corpora
tion, et al. v. United States and Federal Maritime Board,
342 U.S. 570 (1952).
— 2 3 —
clumsy and lacking in the flexibility necessary
to make continuous and detailed supervision ef
fective.”
The implications in the Court’s opposition to ju
dicial administration of intricate and detailed rules
in the economic field apply with greater force to the
social relationship and problems created by these
cases in the field of public education. Furthermore,
the amount of capital involved in the Paramount
case is minute when compared with the wealth in
vested in the public school systems of the South.
The Court, in Barbier v. Connolly, 113 U.S. 27
(1885), speaking of the Fourteenth Amendment,
stated at page 31:
“ But neither the amendment— broad and
comprehensive as it is— nor any other amend
ment, was designed to interfere with the power
of the State, sometimes termed its police power,
to prescribe regulations to promote the health,
peace, morals, education arid good order of the
people. . . (Emphasis supplied.)
A tremendous portion of the wealth of these states
has been invested in capital expenditures for their
public schools. The only practical method of estab
lishing an integrated system calls for a period of
implementation in our present dual system. This
Court in the exercise of its equity powers has ample
authority to permit the parties to adjust gradually
from their existing segregated systems to an inte
grated one. The instant cases affect millions of indi
viduals and the entire public in some seventeen states.
By reason of the great number of people affected by
— 24—
the decree and by reason of the vast amount of
money invested in capital expenditures, and because
of the necessity to make use of all present buildings
in the operation of an efficient system of public edu
cation, this Court should permit the states to adjust
their dual systems gradually into an integrated sys
tem. It is, therefore, respectfully submitted that this
Honorable Court has sufficient authority to permit
a gradual adjustment to an integrated school system
with sufficient time given for local school officials
to accomplish this purpose by the exercise of their
administrative authority.
QUESTION FIVE
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
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 de
crees ;
(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
• 2 5 -
Court include and what procedures should
the courts of first instance follow in arriving
at the specific terms of more detailed de
crees?
Argument
The information contained in the introductory
statements and in Appendix III clearly demonstrates
that the problem of establishing a public school sys
tem not based on race is a localized problem in
Texas, not a state-wide problem. This is further evi
denced in Appendix V, which is a compilation of
scholastic population by counties. It is not a problem
in which the remedy voluntarily adopted in West
Texas or South Texas would be equally applicable
and effective in Northeast Texas. For that reason
no equitable general decree could be formulated
which would be appropriate for every part of the
State of Texas. Specific decrees would have to be
provided for each case, based on the facts and con
ditions then presented to the Court which are shown
to exist in the locality involved in a proper case.
Section 1 of Article VII of the Constitution of
Texas imposes the duty on the Legislature to estab
lish, support and maintain our system of public free
schools.15 This Court announced on May 17, 1954,
that segregation in public education is a denial of the
15 Section 1 of Article VII of the Constitution of Texas
provides: “A general diffusion of knowledge being essential
to the preservation of the liberties and rights of the people,
it shall be the duty of the Legislature of the State to estab
lish and make suitable provision for the support and main
tenance of an efficient system of public free schools.”
■ 2 6 -
equal protection of the laws. Since that time the
Texas Legislature has not met in session, and it is
not known at this time what action the Legislature
will take, if any.
In Minersville School District v. Gobitis, 310 U.S.
586 (1940), this Court stated that it did not want to
become the school board for the entire country. At
page 598 the Court stated:
“ But the courtroom is not the arena for de
bating issues of educational policy. It is not our
province to choose among competing considera
tions in the subtle process of securing effective
loyalty to the traditional ideals of democracy,
while respecting at the same time individual
idiosyncrasies among a people so diversified in
social origins and religious alliances. So to hold
would in effect make us the school board for the
country. That authority has not been given to
this Court, nor should we assume it.” (Emphasis
supplied.)
Keeping the control of public education close to the
local people is perhaps the strongest tradition in
American education. One of the predominant char
acteristics of American education is the variation in
local policies and procedures in terms of unique local
conditions. The Texas Legislature has the right and
duty to maintain public safety and good order. This
Court, in the Gobitis case,16 supra, recognized its
16 That portion of the Gobitis case dealing with the valid
ity of a statute requiring a compulsory flag salute was over
ruled in Board of Education v. Barnette, 319 U.S. 624
(1942).
- 2 7 -
limitations and the authority of the state legisla
tures when it said at page 597:
‘The precise issue, then, for us to decide is
whether the legislatures of the various states
and the authorities in a thousand counties and
school districts of this country are barred from
determining the appropriateness of various
means to evoke that unifying sentiment without
which there can ultimately be no liberties, civil
or religious. To stigmatize legislative judgment
in providing for this universal gesture of re
spect for the symbol of our national life in the
setting of the common school as a lawless inroad
on that freedom of conscience which the Con
stitution protects, would amount to no less than
the pronouncement of pedagogical and psycho
logical dogma in a field where courts possess no
marked and certainly no controlling compe
tence.” (Emphasis supplied.)
Other decrees have been held in abeyance until an
appropriate action could be taken by the proper
agency. See Addison v. Holly Hill Co., 322 U.S. 607
(1944), and Railroad Commission of Texas v. Pull
man Company, 312 U.S. 496 (1940).
This Court has the authority to remand these cases
to the courts of first instance, instructing them to
enter decrees implementing the principles enunciated
in the Court’s opinion of May 17, 1954. See Inter
national Salt Company v. United States, 332 U.S.
392 (1947). If this decision stands, then on remand
the courts of first instance would be familiar with
local conditions and could provide a continuing su
pervision over the program of non-discrimination.
— 28—
They could recognize and adjust the equities between
the parties, bringing individual rights into equality
without unduly hindering the public school program.
CONCLUSION
Since our position before the Court is that of
amicus curiae only and not that of a party, ordinarily
we would not assume to state specifically the scope
of the decrees to be entered by the Court in these
cases. If the Court attempted to formulate a general
decree applicable to all school districts and States, it
would be prejudging a multitude of cases not before
the Court. However, in entering appropriate decrees
the Court should consider the following suggestions
which are respectfully submitted at the request of
the Court:
(1) In formulating a decree or decrees, the Court
should recognize the long established traditions and
usages which have prevailed in those States main
taining a segregated school system, such as Texas,
under the separate but equal doctrine as predicated
upon the principles announced in Plessy v. Ferguson,
supra. These traditions and usages should not be
suddenly and abruptly destroyed. A period of orderly
transition will insure that a decree will meet with
no more than passive resistance by the public.
(2) In formulating a decree or decrees, this Court
must preserve the democratic and salutary principle
of local self government inherent in our public school
systems. Any decree or decrees entered by the Court
should protect this principle. In this manner the de
crees could appropriately be implemented by the local
- 2 9 -
school authorities as a legislative and administrative
matter.
(3) The Court, in formulating a decree or de
crees, should preserve the right of free selection and
choice by the patrons of public schools in selecting
the school which will be patronized.
Respectfully submitted,
JOHN BEN SHEPPERD
Attorney General of Texas
BURNELL WALDREP
BILLY E. LEE
J. A. AMIS, JR.
L. P. LOLLAR
J. FRED JONES
JOHN DAVENPORT
JOHN REEVES
WILL DAVIS
Assistants
Amicus Curiae
■
APPENDICES
TOTAL POPULATION
TOTAL 1950 NON-WHITES
977,458
Source. Reports of U.S. Bureau of the Census, 1950
OAU-KM
0.5
S H E * * * * j MANSrORO jOtHH-TRCC
o.i ! at i o.i
i
UPSCOMB
a»
M AR TLC Y * 0 O * £ HUTCHWSON | R O B E R T S M CM OM lt |
0 . 6 1 , 6 1 - 6 j o o
1
OLDHAM j P O r r c R C A R S O N j O R A V WMCCV.P* j
O .I + . 0
- ! I I 2 9
;
M O H iv tl* I
\ f lO W C I
---1
B i i
PERCENT OF NON-WHITE POPULATION, 1950
LEGEND
50% and over
Less than 1 %
40% -49%
3 0 % -3 9 %
20% -29%
1 0 % - 1 9 %
5 % - 9 %
1 % -4%
None
1954-55 SCHOLASTIC
(Children between 6-17 inclusive as of September 1,1954, Residence as of February 1,1954)
O W X A M
I f
. 7
S H E R M A N
°
•
H A N S P O R D
O
o
O C H IL TR C E j
O
o
LIP S CO M B
O
o
H A R T L E Y
o
o
M O O R E jHUTC HIN S O N
O j 116
O j
R O 0 C R T S
o
°
1
MCMRMILW j
°
O L D H A M
r 1
P O T T C R C A R S O N G R A Y I W HCCLCR 1
o t o I O
°
I S O
1 “
° 4 . 9 O f . 7 5 . 0 1
1 D L A T S M I T H 1 R A N D A L L A R M S T R O N G ! D O N L E Y <OLUNG5*OStJ
7 1 O
*
1 7 5
O O 1 6 . 4
• *L L
FHRM CR. j C A S T R O S W IS H E R j B R lb C O C H A L L jcHiLORESS
2 7 | I I 47 1 6 4
2 2 6
! " *
. . . i . 7 - 2 0 j 8 . r 1 I I . 4 ! * . l
L . i L . . . J ____
B A IL E V 1 LA M B H A L E | F L O Y D 1
i
M O T L E Y J C O T T L t
6 0 i 4 0 3 4 T 6
-
6 ft ! 3 <S
1
2 . 0 j 7 . 7
1 6 *
i 9 . 4
' ' 8
C O C H R A N | m OC h l L Y l o B B O L * j C R O S B Y D iC k C N S | M N O
6 9 j 2 B I 2001 j 4 3 6 6 4 1 11
* .4 - ! 5 .0 a . j j 4 . 4 i
! v o a v S U M J T L R R Y L Y N N { G A R Z A K E N T • S TO N E WALi
i ' i > 0 4 j 4 -5 - 6 J 6
-i i 4 .4- i y . i 2 . S 5 : 0
1 i . . . 1
--- ---- ---- ------ ' T“” S 1
Number of Negro Children
in County and Percent of Negro
Children of all Scholastic
Census Enumerations
Official Scholastic Census Rolls
and Reports for 1954-55 on file In
,he Texas Education Agency.
o
2 5 4 C O U N T I E S
13 % of Population Ages 6-17 inclusive is Negro
230,546 Negroes, 1,556,372 Whites — 1,786,918 Total Population
-------------- 0 A 1 X A M -------- — S H E R M A N M AN S PO R 0 ! 0 C H IL T R C C LiP S C O M B
H A R T i x Y M O O R C O U JCIU K S O M . R O B C R T S H C M P H Itk
O L D H A M
— r ------------------------
166 COUNTIES
88 COUNTIES
90% of Total Negro Population, age 6-17 inclusive
209,076 Negroes
902,173 Whites
19% of Population, age 6-17 is Negro
---.654,199 Whites
43 COUNTIES
40% of Negro Population
Counttes. no Negroes U l T i r 92,969 Negroes
-------- -------------------T - ; 520,920 Whites
ijjh ere oreimore^Negtoes, 15% of Population, Negro
t- High Percent: Freestone
County, 51.1
--------------- — ----- r~^cr---- .--------- n r iT lT i r i r i r i r : Low Percent: Burleson
County, 2.7
zr^ r_r_ :_ ■ County over 50%
45 COUNTIES
50% of Negro Population
116,107 Negroes
381,244 Whites
23% of Population, Negro
High Percent: Marion County, 59.5
Low Percent Brazoria County, 10.1
Counties over 50%
DATA
from
OFFICIAL SCHOLASTIC CENSUS REPORTS
for school year 1954-55 on file in the Tews
Education Agency. Enumeration includes chil
dren ages 6-17 inclusive as of September 1,
1954. Residence is as of February 1, 1?54.
Possible errors due to duplicate enunera-
tions: 4 .6% .
- 3 1 -
APPENDIX IV
Educators’ Views on Integration
On July 30, 1954, the Attorney General of Texas
directed a questionnaire to one hundred and fifty-
two Texas school administrative officials. One hun
dred two questionnaires were mailed to white ad
ministrators and fifty questionnaires were mailed to
Negro administrators. Twelve of the questionnaires
were directed to county superintendents, fifty were
directed to school principals and ninety were directed
to district superintendents. Responses were received
in eighty-two instances, eighteen of which were from
Negro educators.
The questionnaire and evaluated responses are:
“We are in the process of compiling data to deter
mine the feasibility of filing an amicus curiae brief
in the United States Supreme Court relative to the
recent segregation decisions which affects our pub
lic school system. Our school system operates under
legislative authorization, and the Legislature will
not convene in Regular Session until January to con
sider the problem arising by reason of the .Supreme
Court decision. Consequently, if any brief is filed, it
should contain a cross-section of the views of educa
tors and the public generally in Texas in an effort to
see what impact the decision has made on our public
school system and customs.
“ By reason of your long familiarity with the field
of education throughout the State we would like to
have an expression of your views on the following
questions:
— 32—
“ 1. In the event of legislative or Supreme Court
direction, what, in your opinion, would be a reason
able minimum period of time for working out an in
tegrated system in your district?”
In evaluating responses, a period of five years was
arbitrarily set as a division. Thirty-six replied that
a period of five years or less would be sufficient.
Forty-two replied that a longer time than five years
was necessary. Nineteen answers volunteered replies
favoring a twelve year plan of integration (begin
ning with the first grade and adding a new grade
each year). Ten of the Negro replies favored a five
year or less program, while five thought a longer
program was necessary. Two Negroes volunteered
that they favored the twelve year plan.
“2. Do you consider the local problem more acute
than the problem on a state-wide basis?”
Thirty-nine answered that the local problem was
not more acute, as compared to forty-one replies that
the local problem was more acute. The Negro replies
were eleven affirmative, seven negative.
“ 3. Do you think that the established precedent
of separate schools would seriously handicap the op
eration of integrated schools in your area?”
Sixteen responses did not believe the operation of
integrated schools would be handicapped by the pre
cedent of separate schools, but sixty-four did believe
a handicap would exist. Eleven Negroes replied there
would be no handicap, and seven replied there would
be difficulty with an integrated system.
— 33—
“4. (a) In the event of an integrated system,
could all school buildings be utilized?”
Forty-eight responses believed all present school
buildings could be used in an integrated program.
Thirty-three thought that there would be a loss of
use in an integrated system. Ten Negroes replied
that all buildings could be used and seven thought
that all buildings could not be used in an integrated
system.
“4. (b) To what extent are present school build
ings situated so that natural zones could be estab
lished that would continue to serve substantially the
same student body in attendance at the same schools
as under present operations?”
Forty replies stated that natural boundaries sep
arated the two races and the schools for each race.
Thirty-eight responded that no natural boundaries
existed in their locality. Of the Negro educators,
eleven replied that natural boundaries existed, while
five answered that natural boundaries did not exist
in their locality.
“4. (c) If any existing buildings would be un
usable in an integrated program, estimate the pres
ent value of such buildings.”
Forty answered that there would be no loss of
buildings in operating an integrated school system.
Thirty-eight answered that there would be some loss
within their district. Of the Negro educators nine re
plied there would be no loss, while six answered that
there would be some loss.
—34—
“ 5. How will an integrated public school system
affect the school teachers in your area?”
Fifteen responded that there would be no affect
on school teachers in their districts. Fifty-six an
swers believed the Negro teachers would be adversely
affected by an integrated school program. Some re
plies thought white teachers in their districts would
refuse to teach in an integrated school. The Negro
replies seeing no affect within their districts num
bered seven, while three feared an adverse affect.
“ 6. If the patrons of your district, both negro
and white, were given free choice, what per cent
would send their children to the same school now at
tended?”
Seventy-seven replied that 85% or more would
continue attending the same school if they had free
choice. Of this number fourteen answers were from
Negro administrators. Only three answered that stu
dents in their districts would prefer attending inte
grated schools, and all three replies were by Negro
administrators.
3 5 -
APPENDIX y
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
1 . Anderson
Census
4,127
Census
2,473 34.5
2. Andrews 1,885 30 1.6
3. Angelina 6,645 1,398 17.4
4. Aransas 1,154 14 1.2
5. Archer 1,541 0
6. Armstrong 381 0
7. Atascosa 5,266 66 1.2
8. Austin 1,977 789 28.5
9. Bailey 1,994 60 2.9
10. Bandera 725 0
11. Bastrop 2551 1,477 36.7
12. Baylor 1,297 60 4.4
13. Bee 4,831 134 2.7
14. Bell 11,788 1,760 13.0
15. Bexar 109,453 5,997 5.2
16. Blanco 806 22 2.7
17. Borden 176 0
18. Bosque 2,263 103 4.3
19. Bowie 10,895 3,805 25.9
20. Brazoria 13,514 1,523 10.1
21. Brazos 5,437 2,132 28.17
22. Brewster 1,460 9 .6
23. Briscoe 688 64 8.5
24. Brooks 2,336 3 .1
25. Brown 4,994 140 2.7
26. Burleson 1,791 1,063 37.6
27. Burnet 1,794 34 1.9
28. Caldwell 3,743 686 15.5
29. Calhoun 2,933 151 4.9
— S6—
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
30. Callahan
Census
1,690
Census
0
31. Cameron 34,957 117
32. Camp 1,153 822
33. Carson 1,613 0
34. Cass 4,018 2,400
35. Castro 1,458 11
36. Chambers 1,649 447
37. Cherokee 4,905 1,980
38. Childress 1,649 113
39. Clay 1,861 14
40. Cochran 1,503 69
41. Coke 826 0
42. Coleman 2,761 94
43. Collin 7,950 1,062
44. Collingsworth 1,692 172
45. Colorado 2,827 1,134
46. Comal 3,916 83
47. Comanche 2,408 0
48. Concho 940 2
49. Cooke 4,783 186
50. Coryell 3,518 179
51. Cottle 919 36
52. Crane 994 66
53. Crockett 893 12
54. Crosby 2,168 236
55. Culberson 606 0
56. Dallam 1,638 12
57. Dallas 119,280 18,943
58. Dawson 3,695 224
59. Deaf Smith 2,456 7
60. Delta 1,416 219
% of
Negroes
.3
41.6
37.4
.7
21.3
28.8
6.1
.7
4.4
3.3
11.8
9.2
28.6
2.1
.2
3.7
4.8
3.8
6.2
1.3
9.8
.7
13.7
5.7
.3
13.4
- 3 7 -
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
61. Denton
Census
7,220
Census
567 7.3
62. De Witt 4,901 798 14.0
63. Dickens 1,380 64 4.4
64. Dimmit 3,505 13 .4
65. Donley 1,087 75 6.4
66. Duval 4,533 0
67. Eastland 4,110 64 1.5
68. Ector 12,923 562 4.2
69. Edwards 541 1 .2
70. Ellis 6,570 2,875 30.4
71. El Paso 45,775 719 1.6
72. Erath 2,927 20 .7
73. Falls 3,191 1,978 38.3
74. Fannin 4,900 708 12.6
75. Fayette 3,492 982 21.9
76. Fisher 1,777 113 6.0
77. Floyd 2,291 166 6.8
78. Foard 742 90 10.8
79. Fort Bend 6,304 1,803 22.2
80. Franklin 783 126 13.9
81. Freestone 1,675 1,749 51.1
82. Frio 2,785 23 .8
83. Gaines 2,796 46 1.6
84. Galveston 21,504 5,036 19.0
85. Garza 1,397 45 3.1
86. Gillespie 2,137 0
87. Glasscock 255 5 1.9
88. Goliad 1,302 151 10.4
89. Gonzales 3,357 960 22.2
90. Gray 5,727 159 2.7
91. Grayson 12,366 1,303 9.5
— 38—
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
92. Gregg
Census
10,895
Census
3,739 25.5
83. Grimes 1,911 1,563 45.0
94. Guadalupe 5,228 814 13.5
95. Hale 7,618 456 5.7
96. Hall 1,770 228 11.4
97. Hamilton 1,790 0
98. Hansford 989 0
99. Hardeman 1,769 181 9.3
100. Hardin 4,268 791 15.6
101. Harris 156,638 32,559 17.2
102. Harrison 5,059 6,042 54.4
103. Hartley 233 0
104. Haskell 2,892 161 5.3
105. Hays 4,332 234 5.12
106. Hemphill 803 0
107. Henderson 3,657 1,280 25.9
108. Hidalgo 4,511 84 .2
109. Hill 4,792 1,308 21.4
110. Hockley 5,391 281 5.0
111. Hood 1,054 18 1.2
112. Hopkins 3,595 666 15.6
113. Houston 2,511 2,110 45.7
114. Howard 6,423 285 4.2
115. Hudspeth 868 0
116. Hunt 6,188 1,436 18.8
117. Hutchinson 7,511 116 1.5
118. Irion 355 0
119. Jack 1,534 23 1.5
120. Jackson 3,221 418 11.5
121. Jasper 3,834 1,540 28.7
122. Jeff Davis 415 0
— 3 9
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
123. Jefferson
Census
34,353
Census
11,297 24.7
124. Jim Hogg 1,340 0
125. Jim Wells 7,757 55 .7
126. Johnson 6,595 397 5.7
127. Jones 4,137 325 7.3
128. Karnes 3,724 143 3.7
129. Kaufman 4,288 2,222 34.1
130. Kendall 1,311 11 .8
131. Kenedy 142 0
132. Kent 236 6 2.5
133. Kerr 2,602 104 3.8
134. Kimble 868 0
135. King 169 12 6.6
136. Kinney 471 60 11.3
137. Kleberg 5,443 172 3.1
138. Knox 2,069 157 7.0
139. Lamar 6,644 1,692 20.3
140. Lamb 4,855 403 7.7
141. Lampasas 1,852 30 1.6
142. La Salle 2,800 0
143. Lavaca 3,484 561 13.9
144. Lee 1,582 776 32.9
145. Leon 1,517 1,310 46.3
146. Liberty 5,368 1,591 22.9
147. Limestone 2,822 1,654 36.9
148. Lipscomb 725 0
149. Liveoak 2,334 4 .8
150. Llano 904 2 .2
151. Loving 20 0
152. Lubbock 22,164 2,001 8.3
153. Lynn 2,240 104 4.4
— 40—
County
Whites on
1954-1953
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
154. Madison
Census
978
Census
622 38.9
155. Marion 896 1,314 59.5
156. Martin 1,160 78 6.3
157. Mason 893 10 1.1
158. Matagorda 4,537 1,149 20.2
159. Maverick 3,430 0
160. McCulloch 2,184 84 3.7
161. McLennan 21,888 5,260 19.4
162. McMullen 200 0
163. Medina 4,730 31 .6
164. Menard 685 12 1.7
165. Midland 9,143 897 8.9
166. Milam 4,249 1,199 22.0
167. Mills 1,024 0
168. Mitchell 2,570 192 6.9
169. Montague 3,515 0
170. Montgomery 4,680 1,541 24.8
171. Moore 3,562 0
172. Morris 1,816 1,018 35.9
173. Motley 633 66 9.4
174. Nacogdoches 4,218 3,278 36.0
175. Navarro 6,076 2,475 28.9
176. Newton 1,604 996 38.3
177. Nolan 4,083 170 4.0
178. Nueces 45,914 1,748 3.7
179. Ochiltree 1,114 0
180. Oldham 653 0
181. Orange 10,179 1,209 10.6
182. Palo Pinto 3,694 125 3.3
183. Panola 2,542 1,809 41.6
184. Parker 4,768 89 1 .8
— 41—
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
185. Parmer
Census
1,867
Census
27 1.4
186. Pecos 2,699 35 1.3
187. Polk 2,568 1 ,1 1 2 30.2
188. Potter 19,370 1 ,0 1 0 4.9
189. Presidio 1,536 0
190. Rains 729 114 13.5
191. Randall 1,316 0
192. Reagan 780 41 5.0
193. Real 480 0
194. Red River 3,155 1,173 27.1
195. Reeves 3,842 133 3.3
196. Refugio 2,522 275 9.8
197. Roberts 197 0
198. Robertson 2,439 2,141 46.7
199. Rockwall 938 539 36.5
2 0 0 . Runnels 3,437 106 3.0
2 0 1 . Rusk 5,439 3,154 36.7
2 0 2 . Sabine 1,336 518 27.9
203. San Augustine 1 ,2 2 2 844 40.8
204. San Jacinto 666 967 59.2
205. San Patricio 12,143 190 1.5
206. San Saba 1,599 9 .6
207. Schleicher 654 40 5.8
208. Scurry 4,236 93 2 .1
209. Shackelford 840 16 1.9
2 1 0 . Shelby 3,623 1,622 30.9
2 1 1 . Sherman 574 0
2 1 2 . Smith 11,385 5,558 32.8
213. Somervell 493 0
214. Starr 5,053 0
215. Stephens 1,646 60 3.5
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
216. Sterling
Census
308
Census
2 .6
217. Stonewall 681 36 5.0
218. Sutton 895 15 1.6
219. Swisher 2,318 47 2.0
220. Tarrant 74,977 8,904 10.6
221. Taylor 13,248 594 4.3
222. Terrell 656 0
223. Terry 3,122 81 2.5
224. Throckmorton 634 0
225. Titus 3,207 733 18.6
226. Tom Green 11,538 621 5.1
227. Travis 27,111 4,761 14.9
228. Trinity 1,524 658 30.1
229. Tyler 2,121 705 24.9
230. Upshur 2,965 1,533 34.1
231. Upton 1,598 74 4.4
232. Uvalde 4,307 44 1.0
233. Val Verde 4,440 80 1.8
234. Van Zandt 4,086 451 9.9
235. Victoria 8,502 733 7.9
236. Walker 1,786 1,865 51.1
237. Waller 1,367 1,178 46.29
238. Ward 2,870 39 1.3
239. Washington 2,333 1,778 45.2
240. Webb 16,089 5 .1
241. Wharton 7,504 2,087 21.8
242. Wheeler 2,104 66 3.0
243. Wichita 17,203 1,219 6.6
244. Wilbarger 3,490 382 9.9
245. Willacy 5,490 21 .4
246. Williamson 6,851 1,357 16.5
4 3 -
County
Whites on
1954-1955
Scholastic
Negroes on
1954-1955
Scholastic
% of
Negroes
247. Wilson
Census
3,634
Census
95 2.5
248. Winkler 2,415 49 2.0
249. Wise 3,096 34 1.1
250. Wood 3,932 744 15.9
251. Yoakum 1,465 1 .1
252. Young 3,405 24 .7
253. Zapata 1,035 0 —
254. Zavala 3,293 26 .8
TOTALS 1,556,372 230,546 12.9
1
"1
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1954
No...
OLIVER BROWN, ET AL., DOROTHY E. DAVIS, ET AL.,
Appellants, Appellants,
V. V.
BOARD OF EDUCATION OF COUNTY SCHOOL BOARD OF
TOPEKA, SHAWNEE COUNTY, PRINCE EDWARD COUNTY,
KANSAS, ET AL. VIRGINIA, ET AL.
HARRY BRIGGS, JR., ET AL., FRANCES B. GEBHART, ET AL.,
Appellants, Petitioners,
V. V.
R. W . ELLIOTT, ET AL. ETHEL LOUISE BELTON, ET AL.
AMICUS CURIAE BRIEF OF THE
ATTORNEY GENERAL OF ARKANSAS
T om Gentry
Attorney General
State of Arkansas
State Capitol
Little Rock, Arkansas
James L. Sloan
Assistant Attorney General
State of Arkansas
State Capitol
Little Rock, Arkansas
R ichard B. M cCulloch
Special Asst. Attorney General
State of Arkansas
Forrest City, Arkansas
PARAGON PRINTING CO., LITTLE ROCK
I N D E X
Page
Preliminary Statement ------------------------------7-------------------- 1
Arkansas Constitutional and
Statutory Provisions _________________________________ 3
Factual Background--------------------------------------------------------- 5
Argument:
1. This Court Should Not Order
Immediate Integration --------- 7
2. Cases Should Be Remanded to
Permit Gradual Integration _________________ 10
3. Congressional Action for
Integration _______________________________________ 13
Conclusion ______________________________________________ 21
IN D E X — (Continued)
Cases Cited
Page
Brown et al v. Board of Education of
Topeka, Shawnee County, Kansas, et al,
347 U. S. 483 ________________________________________ 1
Civil Rights Cases, 109 U. S. 3 ---------------------------------14, 16, 17
Colegrove v. Green, 328 U. S. 549 ------ ----------------------------- 20
Coleman v. Miller, 307 U. S. 433 ------------------------------------- 19
Collins v. Hardyman, 341 U. S. 651 ---------------------- ------ --- 14
Hecht Co. v. Bowles, 321 U. S. 321---------------------------------10, 11
International Salt Co. v. United States,
332 U. S. 392 -------- --------------------------------------------------- 10
Meredith v. City of Winter Haven,
320 U. S. 228 ------ --------------- -------------------------------------- 10
Minersville School Dist. v. Gobitis,
310 U. S. 586 ...--------------- ---------------------------------------- 18
McCollum v. Board of Education of School
Dist. No. 71, 333 U. S. 203 ------------------- ------------ ...-------- 17
Parker v. Brown, 317 U. S. 341 --- ----------------------------------- 20
INDEX— (Continued)
Page
Pitts v. Board of Trustees of DeWitt Special
School Dist. No. 1, 84 F. Supp. 975 _______________ 11, 18
Plessy v. Ferguson, 163 U. S. 537 _______________________ 11, 15
Steward Mach. Co. v. Davis,
301 U. S. 549 _____________________________________...... 20
Terry v. Adams, 345 U. S. 461___________________________ 13
United States v. Fisher, 6 U. S. 358 _______________________ 17
United States v. Gilman, 347 U. S. 507 ___________________ 20
Arkansas Constitution and Statutes
Constitution of Arkansas (1874),
Article 14, Section 1 _______________________________ 3
Constitution of Arkansas (1874),
Article 14, Section 4 _______ ___________ ____________ 3
Act 52, Arkansas Acts of 1868 __________________________ 4
Act 130, Arkansas Acts of 1873, Section 108 _____________ 4
Appendix "A "
Arkansas School Enrollment
1933-1954 Session With Receipts and Disbursements__ 25
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1954
No.........
OLIVER BROWN, ET AL., DOROTHY E. DAVIS, ET AL.,
Appellants, Appellants,
V. V.
BOARD OF EDUCATION OF COUNTY SCHOOL BOARD OF
TOPEKA, SHAWNEE COUNTY, PRINCE EDWARD COUNTY,
KANSAS, ET AL. VIRGINIA, ET AL.
HARRY BRIGGS, JR., ET AL., FRANCES B. GEBHART, ET AL.,
Appellants, Petitioners,
V. V.
R. W . ELLIOTT, ET AL. ETHEL LOUISE BELTON, ET AL.
(
PRELIMINARY STATEMENT
This brief is filed by the Attorney General of the State
of Arkansas as amicus curiae at the invitation of this
Court in the four cases shown in the caption. For brevity
and convenience, the four cases are referred to collectively
as “ the Brown Case” . Brown v. Board of Education of
Topeka, Shawnee County, Kansas, 347 U. S. 483.
In the Brown Case, the Chief Justice, speaking for the
unanimous Court, stated the issue presented to the Court
in the four cases as follows, 347 U. S. at 493:
“ Does segregation of children in public schools
solely on the basis of race, even though the physical
facilities and other ‘ tangible’ factors may be equal,
deprive the children of the minority group of equal
educational opportunities I ’ ’
2
The Court decided that issue in the following language,
347 U. S. at 495 :
“ We conclude that in the field of public educa
tion the doctrine of ‘ separate but equal’ has no place.
Separate educational facilities are inherently un
equal. Therefore, we hold that the plaintiffs and
others similarly situated for whom the actions have
been brought are, by reason of the segregation com
plained of, deprived of the equal protection of the
laws guaranteed by the Fourteenth Amendment.”
Let it be said at the outset that nothing contained in
this brief is intended to bring into question the correctness
of the ruling of this Court or its reasons for reaching that
conclusion.
The full force and effect of the decision in the Brown
Case was recognized by a ‘ ‘policy statement” issued by the
State Board of Education of Arkansas following a meeting
of the Board on June 14, 1954. The policy statement of
the Board is as follows:
“ Under our present law the State Board of
Education acts only in an advisory capacity to local
school boards. The local board itself is the govern
ing body of the school district and its decisions are
final. Therefore, decisions must be made by the
local school board, but within the limitations and
restrictions provided by law. Our present state law
provides for segregation in the public schools and
any decision by a local board providing for integra
tion of the races is premature, as the Supreme Court
in its opinion stated that further arguments would
be heard and a decree entered. We do not know
when the decree will be entered or what it will pro
vide. In the meantime, members of both races at
the community level should continue as they have
in the past in working cooperatively and effectively
in a friendly effort to achieve better and substan
tially equal schools for all children, without regard
to race.
3
“ It is important to keep in mind that policy
decisions are made by local school boards. The
public school system in America calls for local con
trol of schools and the state functions in the area of
leadership only in such vital statewide matters as
the one involving segregation of the races.”
The General Assembly of Arkansas (the constitutional
legislative branch of Arkansas’ government) has not been
in session since March of 1953 and will not convene in reg
ular session until January of 1955. Without anticipating
what action, if any, the General Assembly of Arkansas will
take in its 1955 session, it is probably safe to say at this
time that some further words of advice and direction from
this Court will go a long way toward charting the course
of future action or inaction by the Arkansas General As
sembly. One of the purposes of this brief is to solicit most
earnestly from this Court such words of clarification and
advice as to the course to be pursued by the people of Ar
kansas in carrying out the final mandate of the Court as
may be proper.
PERTINENT ARKANSAS CONSTITUTIONAL
AND STATUTORY PROVISIONS
Ark. Const. (1874) Art. 14, §1, provides:
“ Intelligence and virtue being the safeguards
of liberty and the bulwark of a free and good gov
ernment, the State shall ever maintain a general,
suitable and efficient system of free schools whereby
all persons in the State between the ages of six and
twenty-one years may receive gratuitous instruc
tion.”
Ark. Const. (1874) Art. 14, §4, provides:
“ The supervision of public schools and the
execution of the laws regulating the same shall be
vested in and confided to such officers as may be
provided for by the General Assembly.”
4
The first general law providing for the separation of
white and negro children in the public schools of Arkansas
was enacted on July 23, 1868 — the year of adoption of
the Fourteenth Amendment to the United States Constitu
tion. The act provided that school boards in Arkansas
shall “ make the necessary provisions for establishing sep
arate schools for white and colored children and youths
Act 52, Ark. Acts of 1868.
In 1873 the Arkansas school law of 1868 was re-enacted
and Act 130, Ark. Acts of 1873, §108, provided for “ estab
lishing separate schools for white and colored children and
youths.” According to a contemporary newspaper, there
were twenty negro members in the 1873 session of the
Legislature and it was reported that “ that one-fifth part
is a complete master of the two houses, as if the number
that composed the group were three times as great.” Edi
torial, “ The Colored Legislators,” Arkansas Gazette, Feb
ruary 1, 1873, p. 2.
It is also interesting to note that on January 6, 1873
(the year during which the Arkansas school laws were be
ing formulated), J. C. Corbin became State Superintendent
of Public Instruction for Arkansas. He was a negro edu
cator who came to Arkansas during the War between the
States. See Weeks, “ School History of Arkansas.” (U.
S. Bureau of Education Bui. No. 27, 1912) pp. 59, 117.
The only statutory law in Arkansas today on the sep
aration of white and negro children in the Arkansas public
school system provides:
“ The board of school directors of each district
in the State shall be charged with the following
powers and perform the following duties . . . (c)
Establish separate schools for white and colored
persons.” Ark. Stats. (1947) §80-509.
5
The existing school segregation law in Arkansas, there
fore, apparently had its origin at a time when the negroes
in Arkansas greatly influenced, if not dominated, legisla
tive action on the school question.
FACTUAL BACKGROUND
Attached hereto as Appendix “ A ” appears a tabula
tion which shows pertinent information as to the various
school districts of Arkansas. The purpose of this tabula
tion is to demonstrate the proposition that the wide variety
of circumstances which exist in the various counties of
Arkansas requires a wide variety of remedies and plans in
bringing about the ultimate result demanded by the decision
of this Court, that is, the abolition of the dual school system
in Arkansas.
There are 75 counties in Arkansas. The tabulation
shows there are 422 separate school districts in the State
or an average of about five separate districts for each
county. Each school district has its separate board of
directors which is the immediate governing authority of
the district. The members of the board are elected by
the qualified electors of the district and they are directly
responsible to the people for their actions.
It is of interest to note that there are 14 counties out
of the total 75 counties which had no negroes enrolled in
the public schools of the county. Ten of the counties
without negro population are located in the north and
northwest (mountain) section of the State. Two of the
non-negro counties (Polk and Scott) are in the south
western section of the state. The remaining two non-
negro counties (Clay and Greene) are contiguous to Mis
sissippi County to the east which had a negro enrollment
of 4,789 or about 20% of the total enrollment for Mississippi
County.
6
By way of contrast, it will be seen from Appendix
“ A ” that in six counties in Arkansas the negro enrollment
exceeded the white enrollment. Five of these predomi
nately negro counties (Lee, St. Francis, Crittenden, Chicot
and Phillips) are in the eastern section of the State and
border the Mississippi River. The other predominately
negro county (Lincoln) is in South-central Arkansas.
The tabulation shows that the negro enrollment for
the State was about 23% of the total enrollment of the
State.
As further evidence of the variety of conditions and
circumstances in Arkansas, it should be noted that two
districts in Arkansas have already integrated the white
and negro children in the schools.
The Charleston School District in Western Arkansas
(Franklin County) has integrated pupils during the 1954-
1955 session from the first grade through the twelfth grade.
The Fayetteville School District in Northwest Arkansas
(Washington County) has an enrollment of 3,096 white
pupils and 64 negro pupils. This district has integrated
the negro and white pupils at the high school level. Negro
children in the Fayetteville School District attend a seg
regated school from the first grade through the ninth
grade. For the 1954-1955 session, 11 negro high school
pupils are attending the same high school with approxi
mately 500 white children.
It is a matter of general information that integration
has been accomplished so far in the Charleston and Fay
etteville School Districts without any unusual incidents.
However, from a comparison of the factual situations of
the Charleston and Fayetteville School Districts with, for
example, districts in St. Francis and Phillips Counties,
it would certainly seem to follow as a matter of necessity
that the process of integration must be applied as the cir
cumstances in each district may require.
7
ARGUMENT
1. This Court should not order “ forthwith integra
tion” in the public schools.
2. This Court should enter a decree in the pending
cases which will permit gradual adjustments.
3. The Court should leave the problem of integra
tion of the races in public schools to Congress for appro
priate legislation.
P oint 1
This Court Should Not Order Immediate Integration
This Court in its opinion in the Brown Case clearly-
recognized that the procedure for integration of the races
in the public schools “ presents probllems of considerable
complexity.” Thus the Court has indicated that it is not
unmindful of the possibility of widespread hostility in at
least some school districts if immediate integration of the
races in the public schools is required by this Court. This
hostility is commonly known to exist in varying degrees
in a majority of the school districts of Arkansas although
there have been, so far as is known, no overt acts by any
particular group or groups indicating open defiance of the
law as declared by this Court.
But even unwilling or hostile compliance can, and
probably would, have a most undesirable effect upon the
whole system of public education in Arkansas. It will be
conceded, presumably, that the bulk of the financial sup
port for the public school system of Arkansas flows from
the white population. This fact will continue to be true for
many years to come unless a large portion of those per
sons who now pay taxes in support of public schools man
age, by some means not now forseeable, to withdraw their
8
support as a result of legislative enactments of some kind
or other.
Without the leadership of those who carry the large
portion of the burden of supporting the school system, the
system as a whole is hound to pass through a period of
deterioration which might last for many, many years. If
the public school system is permitted to deteriorate, it
necessarily follows that both the negro children and the
white children will be the unfortunate victims. The negro
children in all probability will suffer to a greater degree
than the white children in such circumstances.
The Arkansas public school system today ranks far
down the list in many respects in comparison with the
systems of other states. There is a long way to go before
Arkansans can point with pride to their school system as a
whole. But no well-informed person will seriously contend
that Arkansas has not. made measurable progress during
the past few years. Every well-informed person in Ar
kansas agrees with this Court when it said that “ today,
education is perhaps the most important function of state
and local governments” and education “ is the very foun
dation of good citizenship.” Brown Case, supra.
The executive, legislative and judicial branches of the
State government have for years pointed up the school
problem as the most important problem confronting the
people of this State. It is well within the realm of possi
bility that any decree of this Court at this time which
would have the legal effect of ordering immediate integra
tion of the races in all the school districts of Arkansas
would disrupt the financing, management and control of
the school system for many years.
A recognized authority on the sociological aspects of
school segregation has said:
9
“ Finally, there is the hard fact that integra
tion in a meaningful sense cannot be achieved by the
mere physical presence of children of two races in
a single classroom. No public school is isolated
from the community that supports it, and if the
very composition of its classes is subject to deep-
seated and sustained public disapproval it is hardly
likely to foster the spirit of united effort essential
to learning. Even those who are dedicated to the
proposition that the common good demands the
end of segregation in education cannot be unaware
that if the transition produces martyrs they will be
the young children who must bear the brunt of
spiritual conflict.” Ashmore, “ The Negro and the
Public Schools,” (Chapel Hill 1954) p. 135.
It would unduly extend this discussion to take up the
problems of grade requirements, transportation problems,
revision of school area distribution and the many other
complex management problems which will ultimately have
to be solved in bringing about complete integration in Ar
kansas. This Court has already indicated by the opinion
in the Brown Case and by the study which the Court has
obviously given to these cases that it is fully aware of the
complexity of the problem. This Court has not asked for
a statement of the problem, but rather for a solution.
What has been said is, of course, addressed to the
discretion of this Court in the exercise of its equity pow
ers in the four cases now pending before it. It is believed
that this complex problem can be solved most effectively
and most satisfactorily in the interest of both the negro
children and the white children by a gradual, rather than
an immediate, adjustment or transition from segregation
to integration of the races in the public schools.
There are, of course, many decisions of this Court
pointing out the peculiar nature of equity practice. In
the interest of brevity, it is appropriate to point to the
10
opinion of Mr. Justice Douglas in Hecht Co. v. Bowles, 321
U. S. 321, 329, where the Court said:
“ We are dealing here with the requirements
of equity practice with a background of several
hundred years of history. Only the other day we
stated that ‘ An appeal to the equity jurisdiction
conferred on federal district courts is an appeal to
the sound discretion which guides the determina
tion of courts of equity’, Meredith v. Winter Haven,
320 U. S. 228, 235. The historic injunctive process
was designed to deter, not to punish. The essence
of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree of
the necessities of the particular case. Flexibility
rather than rigidity has distinguished it. The quali
ties of mercy and practicality have made equity the
instrument for nice adjustment and reconciliation
between public interest and private needs as well
as between competing private claims.”
This Court also held in International Salt Co. v. United
States, 332 U. S. 392, that district courts are invested with
large discretion in modeling their judgments to fit the
exigencies of the particular case, and the framing of de
crees should take place in the district rather than appel
late courts.
Point 2
The Court Should Enter a Decree in the Pending
Cases Which Will Permit Gradual Adjustments
The pending cases have been designated as class actions
by the Court. The principal matter about which the peo
ple of Arkansas are concerned is the binding effect of the
impending decrees on prospective or pending litigation of
similar nature in the federal courts of Arkansas.
It is believed that the decree of this Court in the Briggs
Case, for example, would not have the effect of an adjudi
11
cation of pending or prospective similar actions in tlie
federal courts of Arkansas. That decree would be a pre
cedent to be followed by the federal courts in Arkansas
only to the extent that the Briggs decree would permit the
federal court in Arkansas in equity to follow the proced
ural scheme provided for in the Briggs decree.
The ultimate solution of the complex problem of tran
sition is undoubtedly one which calls for “ flexibility rather
than rigidity.” Iieclit Co. v. Boivlcs, supra.
In framing its decrees in the pending cases, it is
deemed proper for this Court to consider the opinion of
•Judge Harry J. Lemley in Pitts v. Board of Trustees of
DeWitt Special School District No. 1, 84 F. Supp. 975
(E. JD. Ark.). That case asserted the rights of negro
plaintiffs to equal public school facilities under the Four
teenth Amendment to the United States Constitution. The
Court followed the “ separate but equal doctrine” of
Plessy v. Ferguson, 163 U. S. 537, and held that the negro
children were entitled under the Amendment to school
facilities substantially equal to the school facilities af
forded white children. Judge Lemley was there con
fronted, as the Court is here, with the terms and the scope
of the decree to be entered under his findings of fact and
conclusions of law. In solving this perplexing problem,
Judge Lemley said, 84 F. Supp. at 983:
“ The instant suit is one in equity, and the bill
is addressed to the court sitting as a court of equity.
Hence the court has a wide discretion in determin
ing what relief is proper and prescribing the time
within which such relief must become effective.
The case at bar is not the only one of this nature
upon the court’s docket and, in connection with our
discussions and holdings herein, it should be borne
in mind that each of these cases stands on its own
peculiar facts; relief which might be proper in one
12
case might not be sufficient in another, and the
length of time allowed to a district within which to
bring about an equalization of educational facili
ties which might be reasonable in one case could be
unreasonable in another.”
In the same opinion, Judge Lemley further said, 84
F. Supp. at 988:
“ We are not going to attempt to say what a
‘ reasonable time’ in this case will be; that is a mat
ter properly left, for the time being, to the good
faith and discretion of the Board. If the Board is
dilatory, the plaintiffs are not without their rem
edy in the Courts.”
The problem before Judge Lemley was, in effect, the
same as now confronts this Court in the framing of its
decrees. Judge Lemley decided that the negro children
were entitled to separate but equal facilities. This Court
has decided that the negro children in tire instant cases are
entitled to identical facilities, subject only to classification
not based on race. Judge Lemley was confronted with a
transition from unequal to equal facilities. This Court is
confronted with a transition from separate to identical
facilities.
It seems obvious that Judge Lemley adopted the logi
cal and equitable solution of the problem before him. It
appears also that this Court could find no better solution
of its problem in the instant cases than remanding the four
cases to the courts of first instance for adoption, in sub
stance, of the language of Judge Lemley in the Pitts Case,
supra.
It is contended, therefore, that the Court should enter
a decree in each of the pending cases which will read sub
stantially as follows:
13
‘ ‘ The case is remanded to the court of first in
stance with directions to enter such orders and de
crees as are necessary and proper and not incon
sistent with the opinion of this Court in this case.
In exercising its jurisdiction upon remand, the court
of first instance is left free to hold hearings, through
a Special Master of the court if deemed necessary
or appropriate, to consider and determine what pro
visions are essential, proper and appropriate to af
ford appellants and those similarly situated full pro
tection against segregation of negro children in the
public schools solely on the basis of race in violation
of their rights under the Fourteenth Amendment
to the United States Constitution.” Terry v. Adams,
345 U.S. 461, 470.
Point 3
The Court Should Leave the Problem of Integration
of the Races in Public Schools to Congress for
Appropriate Legislation
Even if the Court remands the pending cases with di
rections as suggested, there still remains the uncertainty
of the immediate effect which those decrees may have on
prospective cases in the federal courts in Arkansas. The
Court must of necessity make some disposition of the
pending cases by way of appropriate decrees. In this con
nection it is most respectfully urged that the Court take
some action by way of a supplemental opinion, in addition
to the specific decrees, which will have the effect of pre
cluding what might well turn out to be a flood of cases in
the federal courts of Arkansas and other so-called “ seg
regated states.”
The point here is that this Court can and should deal
with the problem by way of supplemental opinion in such
a way that the whole problem of solving the method of
integration should fall squarely where the Fourteenth
14
Amendment says it should fall; that is, on Congress for
appropriate enactment.
In its opinion of May 17, this Court has definitely
and finally decided that the separation of the races in
public schools pursuant to state laws on a basis of race vio
lates the Equal Protection Clause of the Fourteenth
Amendment. The law having thus been interpreted and
declared by this Court for the first time, it now becomes
the function and the constitutional duty of Congress to
exercise the power granted by Section 5 of the Fourteenth
Amendment.
Section 5 of the Fourteenth Amendment is as follows:
“ The congress shall have power to enforce, by
appropriate legislation, the provisions of this
article. ’ ’
It might be well to mention at the outset that it is fully
recognized that “ it is not for this Court to compete with
Congress or attempt to replace it as the Nation’s law
making body,’ ’ Collins v. Hardymnn, 341 It. S. 651, 663,
and that “ the judiciary may not, with safety to our insti
tutions, enter the domain of legislative discretion and dic
tate the means which Congress shall employ in the exer
cise of its granted power. That would be sheer usurpation
of the functions of a coordinate department, which, if
often repeated, and permanently acquiesced in, would work
a radical change in our system of government.” Mr.
Justice Harlan dissenting in The Civil Rights Cases, 109
IT. S. 3, 51.
Nevertheless, it would certainly not be entirely with
out precedent for this Court to point out to Congress, as
urged here, the necessity for “ appropriate legislation” ;
especially in view of the known fact that the prolonged in
action by Congress has now resulted in a condition which
has some aspects at least of a national emergency.
15
As a matter of pertinent history, it is very significant
that the legislative records of Congress in promulgating
the Fourteenth Amendment and of state legislatures in
ratifying it have very little to say about racial segregation
in public schools. It is, however, a matter of record that
Senator Charles Sumner of Massachusetts appears to have
strenuously but unsuccessfully advocated implementing
legislation under Section 5 of the Fourteenth Amendment
which would have been a specific and far-reaching pro
scription of racial segregation in the public schools. Cong.
Globe, 42 Cong., 2d Sess. 383-84 (3872).
By way of contrast, it is quite obvious from a reading
of the Court’s opinion in the Broivn Case that, in arriving
at its decision, the Court took full cognizance of contem
porary conditions in the field of public education as com
pared with conditions existing at the time of and for many
years subsequent to 1868. This Court said, 347 U. S. 492:
“ In approaching this problem, we cannot turn
the clock back to 1868 when the Amendment was
adopted, or even to 1896 when Plessy v. Ferguson
was written. We must consider public education in
the light of its full development and its present
place in American life throughout the Nation . . . .
“ Today, education is perhaps the most import
ant function of state and local governments . . . .
In these days, it is doubtful that any child may rea
sonably be expected to succeed in life if he is denied
the opportunity of education.”
The Court having pointed out so forcibly the evolving
concept of the Fourteenth Amendment, it would seem to
follow as a necessary conclusion that the Court should now
(by way of an additional opinion) not only nudge but
even exhort Congress to enact appropriate legislation un
der the power of Section 5 of the Amendment.
16
This Court could with complete propriety point out
to Congress that legislative action is a necessity and that
such necessity is a result of extending inaction by Congress.
If Congress responds to the urgent invitation of the Court
(and there are many reasons for believing that it will),
then it will be performing the mandate of the people which
is incorporated in Section 5 of the Amendment.
This Court in The Civil Bights Cases, 109 U. S. 3, 11,
said that, under Section 5 of the Amendment, Congress
is empowered
“ To adopt appropriate legislation for correct
ing the effects of such prohibited State laws and
State acts, and thus to render them effectually null,
void, and innocuous.”
And in the same cases this Court said, 109 IT. S. 14:
“ It is not necessary for us to state, if we could,
what legislation would be proper for Congress to
adopt. It is sufficient for us to examine whether
the law in question is of that character.”
In his very forceful dissenting opinion in The Civil
Bights Cases, Mr. Justice Harlan said,
“ The legislation which Congress may enact, in
execution of its power to enforce the provision of
the amendment, is such as may be appropriate to
protect the right granted. The word appropriate
was undoubtedly used with reference to its meaning,
as established by repeated decisions of this court.
Under given circumstances, that which the court
characterizes as corrective legislation might be
deemed by Congress appropriate and entirely suffi
cient. Under other circumstances, primary direct
legislation may be required. But it is for Congress,
not the judiciary, to say that legislation is appro
priate— that is—best adapted to the end to be at
tained. ’ ’
17
The conclusion to be drawn from the decision in The
Civil Rights Cases is that the “ appropriate legislation”
contemplated by Section 5 is co-extensive with and just as
important a part of the Fourteenth Amendment as is Sec
tion 1 which declares the rights of all persons to equal pro
tection under the laws. Therefore, whatever action Con
gress sees fit to take in the light of this Court’s decision
would rest upon the judgment of Congress; provided, of
course, that such legislation is directed against state ac
tion. As Mr. Chief Justice Marshall said in United States
v. Fisher, 6 U.S. 358:
“ Let the end be legitimate, let it be within the
scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consistent with the
letter and spirit of the Constitution, are constitu
tional.”
Mr. Justice Frankfurter, concurring in McCollum v.
Board of Education, 333 XL S. 203, 212, said that the case
“ . . . demonstrates anew that the mere formulation
of a relevant Constitutional principle is the begin
ning of the solution of a problem, not its answer.”
And in the same case, Mr. Justice Jackson, concur
ring, said, 33 U.S. at 237: ‘ It is idle to pretend that
said, 333 IT. S. at 237: ‘ It is idle to pretend that
this task is one for which we can find in the Consti
tution one word to help us as judges to decide where
the secular ends and the sectarian begins in educa
tion. Nor can we find guidance in any other legal
source. It is a matter on which we can find no law
but our own prepossessions. If with no surer legal
guidance we are to take up and decide every varia
tion of this controversy, raised by persons not sub
ject to penalty or tax but who are dissatisfied with
the way schools are dealing with the problem, we
are likely . . . to make the legal “ wall of separa
tion between church and state” as winding as the
18
famous serpentine wall designed by Mr. Jefferson
for the University he founded.’ ”
This Court in the Brown Case arrived merely at the
“ formulation of a relevant Constitutional principle.” This
Court should invoke immediate action by Congress to de
clare and solve the variations of the controversy which are
prevalent in the so-called “ segregated states” — parti
cularly in Arkansas.
Again it is appropriate to refer to the opinion of Judge
Lemley in his “ separate but equal” decision, Pitts v. Board
of Trustees, where he said, 84 F. Supp. at 988:
“ In the last analysis, this case and others like
it present problems which are more than judicial
and which involve elements of public finance, school
administration, politics and sociology . . . . The
federal courts are not school boards; they are not
prepared to take over the administration of the pub
lic schools of the several states; nor can they place
themselves in the position of censors over the ad
ministration of the schools by the duly appointed
and qualified officials thereof, to whose judgment
and good faith much must be left.” See also Min
er sville School Dist. v. Gobitis, 310 U. S. 586.
In the Pitts Case and other “ equal facilities” cases
like it, the Court had before it, insofar as enforcement is
concerned, a much less complicated problem than the pres
ent problem of integration of races. The magnitude and
complexity of the integration problem dictates a legislative
solution.
In the enactment of appropriate legislation under
Section 5 of the Amendment, Congress could, and probably
would, recognize the necessity of allowing school officials
wide latitude of administrative discretion under the su
pervision of a federal agency which would guarantee ulti
mate integration. Congress could make adequate provi
19
sions for variations in such matters as geographical peculi
arities, increasing or decreasing enrollment in particular
districts, ratios of enrollment as between white and negro
children, population shifts and any other factors which
Congress might consider to be relevant.
Under Section 5, Congress would undoubtedly have
power to fix a definite future date for complete integra
tion in the several districts which have heretofore operated
under the segregated system; or Congress might provide
that integration must be completed in all districts within
a reasonable time — such reasonable time to be deter
mined in the manner prescribed by Congress.
As said by Mr. Chief Justice Stone in Coleman v.
Miller, 307 U. S. 433, 453,
“ The question of a reasonable time in many
cases would involve, as in this case it does involve,
an appraisal of a great variety of relevant condi
tions, political, social and economic, which can hardly
be said to be within the appropriate range of evi
dence receivable in a court of justice and as to which
it would be an extravagant extension of judicial au
thority to assert judicial notice as the basis of de
ciding a controversy with respect to the validity
of an amendment actually ratified. On the other
hand, these conditions are appropriate for the con
sideration of the political departments of the Gov
ernment. The questions they involve are essentially
political and not justiciable. They can be decided
by Congress with the full knowledge and apprecia
tion ascribed to the national legislature of the po
litical, social and economic conditions which have
prevailed during the period since the submission of
the amendment.”
It is submitted that so long as Congress confines its
“ corrective” legislation to state action which infringes
the Equal Protection and Due Process Clauses of the
2 0
Fourteenth Amendment, Congress would be the “ guardian
of its own conscience” as to what legislation on the school
integration subject is more or less “ appropriate.” In fact,
it has been noted that in other fields it has not been un
common for Congress to leave detailed administration to
state control and discretion so long as such control and
discretion are kept within the framework dictated by fed
eral law. Steward Machine Co. v. Davis, 301 U. S. 548,
and Parker v. Brown, 317 U. S. 341.
The Constitution has conferred upon Congress the
power to secure equal educational opportunities in the
public schools for all children regardless of race. If Con
gress has failed and should continue to fail in exercising
its powers whereby equal educational opportunity is denied
by reason of state laws “ the remedy will ultimately be
with the people.” “ The Constitution has left the perform
ance of many duties in our governmental scheme to depend
on the fidelity of the executive and legislative action and,
ultimately, on the vigilance of the people in exercising their
political rights.” Cole.grove v. Green, 328 U. S. 549, 556.
It is a. matter of particular interest here that on the
very same day this Court decided the school segregation
cases (May 17,1954) the Court also decided a very import
ant case arising under the Federal Tort Claims Act, 60
Stat. 842. The case was United States v. Gilman, 347 U. S.
507. In construing the act, the unanimous Court, through
Mr. Justice Douglas said, 347 U. S. at 511.
“ Here a complex of relations between fed
eral agencies and their staffs is involved. More
over, the claim now asserted, though the product of
a law Congress passed, is a matter on which Congress
has not taken a position. It presents questions of
policy on which Congress has not spoken. The selec
tion of that policy, which is most advantageous to
the whole, involves a host of considerations that must
21
be weighed and appraised. That function is more
appropriately for those who write the laws, rather
than those who interpret them.”
In the instant cases the Court is most certainly deal
ing with ‘ ‘ a complex of relations” between the federal gov
ernment on the one hand and the state governments on the
other. The specific problem of implementing Section 1 of
the Fourteenth Amendment as interpreted by this Court is
a matter on which Congress has not taken a position over
a period of eighty-six years and presents serious “ ques
tions of policy.” The selection of policy relating to the
integration of the races in public schools “ involves a host
of considerations that must be weighed and appraised.”
This Court should, in some appropriate manner, leave the
details of the solution of the problem “ to those who write
the laws.”
CONCLUSION
The point which is urged here with most emphasis is
that a decree of this Court ordering immediate integration
of the white and negro children would have a most dis
astrous effect upon the public school system of Arkansas.
Likewise, it would most seriously disrupt the efforts of
the leaders of both races in solving the racial problem in
Arkansas in all its various aspects. No person or court can
predict at this time what the consequences would ultimately
be. There is no need for immediate integration in the pub
lic schools. It is not required by the Constitution.
The problem of integration of races in the public
schools is of such magnitude that it can be solved effec
tively only by a gradual process which would vary from
locality to locality. It is probably safe to assert at this
time that no person or group of persons — not even any
court — has formulated any definite plan of integration
2 2
which would operate successfully in the school districts of
Arkansas. As to the four cases now before the Court,
the plan for integration in the districts which would be
directly affected by those cases must, for the time being
at least, be formulated, developed and finally concluded
under the supervision and control of the courts of first
instance. The decrees of this Court should accord to the
lower courts the very widest range of discretion in bring
ing about integration in a manner which will promote,
rather than retard the ultimate solution of the whole
problem.
Finally and most earnestly, it is urged that this Court,
by a supplemental opinion, point out in no uncertain terms
that the integration problem is one which should be solved
hv Congress under Section 5 of the Fourteenth Amend
ment. The American system of government being what it
is, this Court cannot compel Congress to act. But cer
tainly this Court can, by some appropriate suggestion,
bring about prompt and appropriate action by that branch
of the government in which the people themselves, by
adoption of the Fourteenth Amendment, lodged the power
to adopt the appropriate plan to correct the conditions
which, so this Court has said, the states have brought
about in violation of the Amendment.
If the powers of this Court were not limited by the
Constitution, the proper decrees of this Court in the pend
ing cases would be to “ remand the cases” to Congress
with directions to take appropriate action. Lacking the
power to command Congress, the next best tiling would be
a most urgent invitation to Congress from this Court. It
is such a course which this Court is asked to adopt to the
very limit of its power. If the Court complies with this
request, then the solution of the problem will rest where it
2 3
was intended by the Constitution that it should rest—
with the Congress.
November 15,1954.
Respectfully submitted,
T om Gentry
Attorney General
State of Arkansas
State Capitol
Little Rock, Arkansas
James L. Sloan
Assistant Attorney General
State of Arkansas
State Capitol
Little Rock, Arkansas
R ichard B. M cCulloch
Special Asst. Attorney General
State of Arkansas
Forrest City, Arkansas
.
■
\
25
APPENDIX
ARKAN SAS SCHOOL ENROLLMENT
1953-54 SESSION
Enrollment Annual Annual
COUNTY White Negro Total Receipts Disb'mls
Arkansas . . . 3,630 1,360 4,990 $ 891,277 $ 732,917
Ashley . . . . 3,963 2,367 6,330 1,018,902 895,782
Baxter . . . . 2,148 XXX 2,148 326,545 286,029
Benton . . . . 7,443 1 7,444 1,199,694 1,046,447
Boone ............ 3,516 XXX 3,516 488,271 483,435
Bradley . . . . 2,064 932 2,996 479,622 454,240
Calhoun . . . . 1,056 592 1,648 286,115 263,004
Carroll . . . . 2,240 XXX 2,240 330,165 315,957
Chicot............ 2,461 3,053 5,514 837,044 666,743
C la rk ............. 3,430 1,569 4,999 719,768 644,724
C la y ............... 5,899 XXX 5,899 712,092 695,944
Cleburne . . . 2,466 XXX 2,466 273,697 257,370
Cleveland . . . 1,546 526 2,072 353,646 333,275
Columbia . . . 3,679 2,807 6,486 1,010,188 927,011
Conway . . . . 2,721 1,211 3,932 535,174 489,141
Craighead . . . 11,264 295 11,559 1,502,603 1,389,577
Crawford . . . 5,147 87 5,234 647,874 635,714
Crittenden . . 4,012 6,909 10,921 1,254,324 1,052,578
C ross............. 4,106 1,985 6,091 797,101 731,553
Dallas . . . . 1,659 1,221 2,880 467,792 430,774
D esh a............ 3,426 3,078 6,504 824,451 730,117
D r e w ............. 2,237 1,366 3,603 544,724 463,941
Faulkner . . . 3,981 612 4,593 633,314 620,258
Franklin . . . 3,033 38 3,071 408,118 376,237
Fulton . . . . 1,728 XXX 1,728 243,406 232,057
Garland . . . . 8,045 910 8,955 1,449,747 1,392,016
Grant ............. 2,121 203 2,324 381,496 364,546
Greene . . . . 6,608 XXX 6,608 856,064 781,482
26
ARK AN SAS SCHOOL ENROLLMENT
1953-54 SESSION
Enrollment Annual Annual
COUNTY White Negro Total Receipts Disb'mts
Hempstead . . 2,965 2,355 5,320 783,593 707,316
Hot Spring . . 4,860 744 5,604 1,020,340 877,411
Howard . . . . 2,333 809 3,142 511,605 449,967
Ind’p’nd’nce . 4,723 77 4,800 637,999 593,318
Izard .............. 2,093 14 2,107 240,407 224,549
Jackson . . . . 5,005 904 5,909 824,448 766,556
Jefferson . . . 8,869 8,025 16,894 2,353,543 2,038,288
Johnson . . . . 3,159 41 3,200 450,995 434,097
Lafayette . . . 1,629 1,614 3,243 560,538 480,749
Lawrence . . . 4,857 55 4,912 732,762 670,184
L e e ................. 2,316 3,552 5,868 626,368 537,960
Lincoln . . . . 1,744 1,887 3,631 544,104 470,376
Little River . 1,799 964 2,763 438,760 393,134
Logan ............ 3,230 169 3,399 558,614 482,709
Lonoke . . . . 4,518 1,428 5,946 829,476 723,716
Madison . . . . 2,640 XXX 2,640 277,237 266,346
Marion . . . . 1,516 XXX 1,516 254,566 232,608
M ille r ............ 5,927 2,106 8,033 1,143,452 1,027,337
Mississippi . . 13,218 4,789 18,007 2,366,353 2,302,446
Monroe . . . . 2,394 2,176 4,570 526,483 483,524
Montgomery 1,416 3 1,419 284,030 232,634
Nevada . . . . 1,893 1,498 3,391 588,702 494,588
Newton . . . . 1,946 XXX 1,946 220,148 212,226
Ouachita . . . 4,781 3,637 8,418 1,336,720 1,095,448
P e r r y ............. 1,297 48 1,345 221,272 190,383
Phillips . . . . 4,294 6,409 10,703 1,132,056 1,036,507
P ik e ............... 2,003 74 2,077 348,979 304,222
Poinsett . . . . 8,022 694 8,716 1,035,175 972,903
P o lk ............... 2,931 XXX 2,931 534,865 439,619
P o p e ............... 4,270 123 4,393 608,356 589,653
27
ARK AN SAS SCHOOL ENROLLMENT
1953-54 SESSION
COUNTY
Enrollment
White Negro Total
Annual
Receipts
Annual
Disb'mts
Prairie . . . . 2,296 575 2,871 433,500 413,484
Pulaski . . . . 27,695 9,088 36,783 6,413,057 5,871,522
Randolph . . . 2,808 31 2,839 374,322 337,164
Saline . . . . . 4,800 88 4,888 791,254 729,381
Scott . . . . . 1,564 XXX 1,564 295,193 254,689
Searcy . . . . 2,200 XXX 2,200 278,123 266,129
Sebastian . . . 12,400 903 13,303 2,138,442 2,023,826
Sevier . . . . . 2,264 264 2,528 479,528 376,536
Sharp . . . . . 2,345 XXX 2,345 328,387 308,232
St. Francis . . 3,740 5,300 9,040 948,998 886,075
Stone . . . . . 1,590 XXX 1,590 194,428 182,477
Union . . . . . 7,524 4,325 11,849 2,264,543 1,892,648
Van Buren . 1,960 17 1,977 268,505 256,415
Washington . 9,299 64 9,363 1,262,843 1,213,977
White . . . . . 7,817 302 8,119 1,230,306 1,160,193
Woodruff . . . 2,552 1,946 4,498 553,958 544,544
Y e l l ............. . 2,910 90 3,000 539,774 477,755
TOTAL . . . . 314,041 98,310 412,351 $60,261,321 $54,618,690
Nos. 1, 8 , 10
Supreme Court of tfje Untteb States
OCTOBER TERM, 1953
BROWN, et al., A p p ella n ts
BOARD OF EDUCATION OF TOPEKA,
SHAWNEE COUNTY, KANSAS, et al..
A p p e llees
No. 1
BOLLING, et al.. P etition ers
V .
SHARPE, et al.. R esp on d en ts
No. 8
GEBHART, et al.. P etition ers
V.
BELTON, et al.. R esp on d en ts
No. 10
ON RE-ARGUMENT
BRIEF OF
AMERICAN VETERANS COMMITTEE, INC. (A. V. C.)
Amicus Curiae
Phineas I ndritz
National Counsel
Am erican Veterans Committee
November 30, 1953
Washington, D. C.
P ress o r B yron S. A d a m s . W ashington , D . C.
Preliminary statement..................................................................... 1
QUESTION 4 ........................................ 4
I. The nature of the r ig h t ........................................................... 4
II. When the children named as complainants should be ad
mitted into nonsegregated schools......................................... 5
III. The elimination of racially segregated schools................. 5
A. Normal geographic school districting and choice of
schools.................................................................................... 5
B. When is “ forthwith” ......................................................... 7
C. Integration of these schools can and will be successfully
achieved ................................................................................ 7
D. The law versus lawlessness............................................... 11
QUESTION 5 ................................... 11
I. What this Court’s decree should contain ............................. 12
II. The principles which should govern any “ gradualism”
p o licy ............................................................................................ 13
III. The “ voluntary” method of gradual adjustm ent............. 14
IY. “ Gradualism” by the judiciary is unnecessary.............. 15
TABLE OF AUTHORITIES
Qa s e s :
Avery v. Georgia, 345 IT. S. 559 (1953) ................................................ 16
Barrows v. Jaclcson, 346 U. S. 249 (1953) ........................................... 16
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 (1948) ...................... 16
Brotherhood o f Bailroad Trainmen v. Howard, 343 U. S. 768 (1952) .. 16
Buchanan v. Warley, 245 U. S. 60 (1917) .......................................4,11,16
Cassell v. Texas, 339 U. S. 282 (1950) .................................................. 16
City o f Richmond v. Deans, 281 IT. S. 704 (1930) ................................. 16
District o f Columbia v. John B. Thompson Co., Inc., 346 U. S. 100
(1953)............................................................................................... 9,16
Ex parte Virginia, 100 U. S. 339 (1880) .............................................. 16
Farrington v. Tolcushige, 273 IT. S. 284 (1927) .................................... 6
Graham v. Brotherhood o f Locomotive Firemen 4 Enginemen, 338 U. S.
232 (1949) ........................................................................................ 16
Harmon v. Tyler, 273 U. 8. 668 (1927) ............................................. 16
Henderson v. United States, 339 U. S. 816 (1950) ............................. 2,4,16
IN D EX
Page
ii Index Continued
Page
B ill v. T exa s, 316 U. S. 400 (1942) ................................................................. 16
H urd v. H od g e, 334 U. S. 24 (1948) ............................................................. 16
L ane v. W ilson , 307 U. 8. 268 (1939) ............................................................. 16
M cC a be v. A tch ison , T . # S . F . B y . Co., 235 U. S. 151 (1914) ................. 4
M cLaurin v. Oklahoma S ta te B eg sn ts , 339 IT. S. 637 (1950) ..................2,16
M issou ri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) . . ....................... 4,16
M itchell v. U nited States, 313 U. S. 80 (1941) ............................................4,11
M orga n v. Virginia, 328 U. S. 373 (1946) .................................................... 16
Oyam a v. California, 332 U. S. 633 (1948) .................................................. 16
F ierce v. S ociety o f Sisters, 268 U. S. 510 (1925) ........................................ 6
F le ssy v. F ergu son , 163 U. 8. 537 (1896) ...................................................... 2,3
B ailw ay M ail A s s ’n. v. Corsi, 326 U. S. 88 (1945) ........................................ 16
B ice v. E lm ore, 165 P. (2d) 387 (C. A. 4, 1947), cert. den. 333 U. 8.
875 (1 948)............................................................................................................ 16
Schnell v. D avis, 336 U. S. 933 (1949) ............................................................. 16
Shelley v. K ra em er, 334 TJ. S. 1 (1948) ................................................ 3, 4,11,16
Sipuel v. Board o f B eg en ts , 332 IJ. S. 631 (1948) ........................................4,16
Sm ith v. A llw righ t, 321 U. S. 649 (1944) .................................................... 16
S w ea tt v. Painter, 339 U. S. 629 (1950) .................................................... 2,5,16
Takahaslii v. F ish Game Com m ., 334 U. 8. 410 (1948) ....................... 16
T erry v. A da m s, 345 U. S. 461 (1953) ............................................................. 16
U nited S ta tes v. Appalachian E lec. P ow er Co., 311 U. S. 377 (1940) . . . . 15
Virginia v. B ives, 100 U. 8. 313 (1880) ......................................................... 16
Y ick W o v. H opkins, 118 U. S. 356 (1886) ..................................................... 16
M iscellaneous :
Bustard, Joseph L., The N ew J ersey S to r y : T he D evelopm ent o f Bacially
In teg ra ted Public Schools, 21 J. of Neg. Ed. 275 (Summer 1952) . . . . 17
D. C. Superintendent of Schools, B ep ort o f , to the B oard o f Education,
1952-1953 .............................................................................................................. 10
Prank, Can Courts Erase the Color L in e ? , 21 Journ. of Neg. Ed. 304
(1 9 5 2 )................................................................................................................... 11
Hearings, 1954 D. C. Appro. Bill (H.R. 5471), Senate Comm, on Appro.,
83rd Cong., 1st sess.............................................................................................. 9
Indritz, Phineas, Facial B am parts in the N a tio n ’s Capital, 41 George
town Law Journ. 297 (March 1953) ............................................................. 8
Jans, Ralph T., Facial In tegra tion at B erea College, 195 0 -1 95 3 , 22 J. of
Neg. Edue. 26 (Winter 1953) .......................................................................... 16
Facial Violence and Civil B ig h ts L aw E n forcem en t, 18 U. of Chi. L.
Rev. 769 (1 9 5 1 ).................................................................................................. 11
T im e Magazine, W h en the B arriers F all, p. 40 (Aug. 31, 1953) ............... 16
W ashington P o st, p. 1 (Nov. 26, 1953) ............................................................. 8
Wertham, Frederic, P sych iatric O bservations on A bolition o f School
Segregation , 26 J. of Educ. Soc. 333 (March 1953) ................................ 16
feupreme Court of tlje ^Hntteb States
OCTOBER TERM. 1953
BROWN, et al.. A p p ella n ts
V .
BOARD OF EDUCATION OF TOPEKA,
SHAWNEE COUNTY, KAN SAS, ei al..
A p p e llees
* No. 1
BOLLING, et al.. P etition ers
V .
SHARPE, et al.. R esp on d en ts
No. 8
GEBHART, et al.. P etition ers
V .
BELTON, et al„ R esp on d en ts
No. 10
ON RE-ARGUMENT
BRIEF OF
AMERICAN VETERANS COMMITTEE. INC. (A. V. C.)
Amicus Curiae
PRELIM INARY STATEMENT
The American Veterans Committee, Inc., is a nation
wide organization of veterans who served honorably in the
Armed Forces of the United States during World Wars I
and II, and the Korean Conflict. During the 1952 Term,
we filed briefs, with consent of the parties, in two of the
five school segregation cases now on reargument before
this Court pursuant to the Court’s order of June 8, 1953
(345 U. S. 972). Brown v. Board of Education of Topeka,
No. 8, and Bolling v. Sharpe, No. 413, both in October Term,
1952. In those briefs we urged the following points:
(a) That racial segregation imposed by State law in
public schools violates the equal protection guarantee of
the Fourteenth Amendment even where the discriminatory
effect of the segregation can be described as solely
psychological.
(b) That compulsory racial segregation in public schools
cannot be supported under any proper test.
(c) That even if the Plessy postulate of “ reasonable”
racial segregation were applicable to public schooling and
had any vitality at present,1 the segregation in these cases
is unreasonable and therefore unconstitutional under the
Plessy rule itself.
(d) That the right guaranteed by the Fourteenth
Amendment to be free from racial discrimination by
governmental authority is so basic to our free society as
to have become a right constitutionally accorded to free
men under the Due Process clause of the Fifth Amendment
to be free from arbitrary racial discrimination by the
Federal Government or agencies acting under its authority,
including the District of Columbia government.
(e) That this Court’s 1950 decisions in the Sweatt and
McLaurin cases, dealing with racial segregation in educa
tion at the graduate school level, require the elimination
of racial segregation in public schools at the levels of
1 Our Brief in the Brown case last term (No. 8 then, No. 1 now)
reminded this Court that analyses dissecting the unsound founda
tions of the majority opinion in Plessy v. Ferguson, 163 U. S. 537
(1896) are contained in the Briefs of the American Veterans Com
mittee and the United States filed in the case of Henderson v.
United States, 339 U. S. 816 (1950), No. 25, Oct. Term, 1949.
3
education involved in the present cases (elementary, junior
high, and senior high, school), inasmuch as the racial
segregation at any of these levels produces educational
handicaps for the colored students.
(f) That equality of educational opportunity cannot he
achieved within a racially segregated system.
(g) That the people are ready for and will accept racial
integration in the public school systems.
In this brief on the reargument, we shall seek to present
answers only on questions 4 and 5.
We have conducted researches on questions 1 and 2
(relating to the history of the adoption of the Fourteenth
Amendment) which convince us that it was intended to
forbid in every portion of our United States every distinc
tion and difference in treatment by or under governmental
authority which is based on race or color, and to make our
Constitution, as Mr. Justice Harlan memorably described
it, a Constitution which “ is color-blind, and neither knows
nor tolerates classes among citizens.” Plessy v. Ferguson,
163 U. S. 537, 559 (1896).2 But we do not here recite the
evidence or spell out the history—other briefs proffered
to this Court will undoubtedly do so profusely.
As to question 3, we believe that our previous briefs in
these cases adequately present our argument that this
Court has the judicial power, and the duty, in construing
the Fourteenth Amendment and its application to these
cases, either directly or through the Due Process clause
2 The late Mr. Chief Justice Vinson stated this understanding
for a unanimous Court as follows in Shelley v. Eraemer, 334 U. S.
1, 23 (1948) :
“ The historical context in which the Fourteenth Amend
ment became a part of the Constitution should not be forgot
ten. Whatever 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 ac
tion on the part of the States based on considerations of race
or color.”
4
of the Fifth Amendment, to abolish racial segregation in
public schools.
QUESTION 4
"4. Assuming ii is decided that segregation in public
schools violates the Fourteenth Amendment
(a) would a decree necessarily fo llow providing that,
within the limits set by normal geographic school dis
tricting, 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 segregated systems to a system not based on
color distinctions?"
The assumption on which question 4 is based is that this
Court has ruled that racial segregation in public schools
violates the Constitution and that the Negro children in
these cases are entitled to education in nonsegregated
schools.
I. THE NATURE OF THE RIGHT
This Court has repeatedly held, in cases involving racial
discrimination, that the constitutional rights asserted by
an individual against whom the racial discrimination has
been imposed by governmental authority are “ personal”
rights, not group rights to be merged and averaged with
the rights of all others of his race and then balanced
against the rights of all white persons averaged as a group.
Henderson v. United States, 339 U. S. 816, 825-826 (1950);
Shelley v. Kraemer, 334 U. S. 1, 22 (1948); Mitchell v.
United States, 313 U. S. 80, 97 (1941); Buchanan v. Warley,
245 U. S. 60, 80 (1917); McCabe v. Atchison, T. d S. F. By.
Co., 235 U. S. 151, 161-162 (1914); Missouri ex rel. Gaines
v. Canada, 305 U. S. 337, 351 (1938). This Court has also
ruled that the education which a State must provide for
a Negro “ in conformity with the equal protection clause
of the Fourteenth Amendment” must be provided for him
“ as soon as” it is provided for any white person. Sipuel
v. Board of Regents, 332 U. S. 631 (1948). These rulings
5
were epitomized when this Court unanimously characterized
the right to secure public education without uncon
stitutional racial discrimination as “ personal and present.”
Sweatt v. Painter, 339 U. S. 629, 635 (1950).
II. WHEN THE CHILDREN NAMED AS COM PLAINANTS
SHOULD BE ADMITTED INTO NONSEGREGATED
SCHOOLS.
In view of the rulings mentioned above, when this Court
holds that racial segregation is unconstitutional, the Negro
children who are complainants in these cases have a
constitutional right to enter the schools which, on the basis
of their age, educational level, residence, and other proper
scholastic criteria, they could and would enter if they were
labeled “ white” instead of “ colored.” I f the decision
comes after the beginning of a school term, their right to
equal (unsegregated) education “ as soon as” others may
have it becomes a right to enter that school not later than
the beginning of the school term immediately following the
entry of this Court’s mandate. Therefore, the minor
Negro complainants in these cases should be allowed to
enter the schools, and at the time, mentioned in this
section.
III. THE ELIMINATION OF RACIALLY
SEGREGATED SCHOOLS.
In the light of the answer in the preceding section, and
since all the cases here involved are class actions, we
interpret questions 4 and 5 as being directed, not to the
admission of the Negro children whose names appear in
the pleadings in these cases, but to the general matter of
eliminating racially segregated public schools.
A. Normal geographic school districting and choice of
schools.
Question 4(a) seems to imply that a decree ordering
admission of Negro children into schools heretofore
attended solely by white children must necessarily refer
6
to normal geographic school districting and/or to
admission of the children into “ schools of their choice.”
The administration of public school systems is not, and
need not by this Court be, thus limited. These cases do not
involve modes of administering the public schools, except
at one point: that the governmental authorities make no
racial distinctions between children in the operation of the
public school system.
The easiest way to operate a normal public school system
without racial distinctions is by assigning children to
schools according to their residence within normal geo
graphic school zones. It is a factual, impersonal, and tra
ditional criterion in administering public schools. It tends to
reflect the normal neighborhood pattern, it permits easier
programming of school and community needs, and it avoids
the imbalance between schools which results from unre
strained migration of pupils. Nevertheless, we do not con
tend that the Constitutional guarantee of equal protection
of the laws requires that hoards of education he compelled
to admit children into schools solely on geographic bases, or
that the boards he compelled to permit, or he enjoined from
permitting, each child to “ choose” which of several public
schools he will attend. Cf. Pierce v. Society of Sisters,
268 U. S. 510 (1925); Farrington v. Tokushige, 273 U. S.
284, 298 (1927). These are matters of public school
administration which are committed to the sound judgment
of school officials; they are not matters to he regulated by
judicial decree.
We say only that the public school authorities, no matter
what distinctions they draw based on educational factors,
community residence, local circumstances, or other
grounds, may not distinguish between children on the basis
of their racial ancestry. Accordingly, we recommend that
this Court’s decree, issued upon the holding that racial
segregation in the public schools is unconstitutional,
(a) simply forbid the school authorities from making
racial distinctions or differences in treatment on the basis
of race or color, by way of segregation or otherwise, in the
7
administration of the public school system, and (b) make
no requirements, one way or the other, with respect to
geographic school zones or choice by children as to which
school they will attend.
B. When is “forthwith.”
Question 4(a) refers to the “ forthwith” admission of
Negro children into public schools (presumably schools
previously attended solely by white children). We do not
understand the word “ forthwith” as meaning the day after
this Court’s decree is issued. Even the best run school
system will require some time to adjust its records,
facilities and other administrative affairs from the
artificial patterns imposed by the segregated system to an
integrated system which deals with children as children
rather than as colors ranging from Caucasoid pink to
ebony. Presumably, however, this Court will announce
its decisions in these cases during Term time which
generally has been between October and June. We would
suppose that the school authorities in these cases could
make the necessary adjustments during the months pre
ceding the opening of schools in September.
We have no doubt, if an additional school term is re
quired to enable the school authorities to change from the
segregated to an integrated system, that the equity power
of our judicial system is sufficiently comprehensive and
flexible to permit such an adjustment. But we urge that
if this Court frames its decree to permit the court of first
instance to allow such additional time, the decree
specifically impose upon the school authorities the burden
of proving, by substantial and probative evidence pre
sented to that court, the need for such additional time.
C. Integration of these schools can and will be successfully
achieved
We cannot visualize what unusual circumstances may
require delay in integration beyond the opening of the
school term following this Court’s announcement of its
8
decisions that segregation in public school education is
unconstitutional. The Delaware schools involved in
No. 10 (Gebhart v. Belton) are now integrated and operate
without difficulty; and the Attorney General of Delaware
candidly concedes that the Delaware authorities “ do not
anticipate any serious problems of adjustment” (Brief for
Petitioners on Reargument in Gebhart v. Belton, No. 10,
p. 44). The Kansas schools involved in No. 1 (Brown v.
Board of Education of Topeka) can admittedly be in
tegrated without difficulty; not only did the Assistant
Attorney General of Kansas say so last Term at the Bar
of this Court, but the Board of Education of Topeka has
already integrated some of the schools here involved.
The District of Columbia picture is equally clear. We
are confident, on the basis of close and considerable
analysis of, and experience with, the District of Columbia
milieu, that integration of its dual school system could,
when the legal bars are removed, proceed rapidly, peace
fully, and successfully. Indeed, so rapidly has integration
advanced in the District that public school segregation is
quite out of tune with the rest of the community.3
Intimations that violence beyond the control of the
District of Columbia authorities would result from de
segregation of its schools, such as were contained in the
brief filed last Term by the respondents in the Bolling
case referring (at p. 23) to “ attitudes which are
antipathetical to the co-mingling of the races in schools
or otherwise” and stating that “ racial tensions exist and
racial clashes have occurred considerably further north,”
are simply without substance.
It is significant that this Court’s recent decision ending
racial segregation in the public restaurants of the District
3 Phineas Indritz, Racial Ramparts in the Nation’s Capital, 41
Georgetown Law Journ. 297 (March 1953). Just yesterday (Nov.
25, 1953) the District Commissioners issued an Order forbidding
racial distinctions, in practically all agencies under their direct
control, concerning employees and use of public facilities and
services. Washington Post, p. 1 (Nov. 26, 1953).
9
of Columbia was followed by complete acceptance of non
segregation without any disturbances or friction.
District of Columbia v. John R. Thompson Co., Inc., 346
U. S. 100 (June 8, 1953).
The District’s peaceful acceptance of integration in other
equally “ sensitive” areas such as swimming pools,
theatres, private and parochial schools, parks, play areas,
department stores, etc., in all public buildings, and in many
other areas of daily living, demonstrates how flimsy is any
intimation of possible violence. See article cited in foot
note 3.
Indeed, the school officials of the District of Columbia
have already devoted considerable study to the “ plans,
procedures and techniques of transition from ” the
segregated to a nonsegregated system if and when this
Court decides that racial segregation in public schools is
unconstitutional.4 The Superintendent of D. C. schools
4 In our previous Brief (pp. 7-8, in Bolling v. Sharpe, No. 413,
Oct. Term, 1952) we suggested that the District of Columbia
Board of Education “ is striving to mitigate the many racial in
equalities in the school system.”
We now confess error as to this statement. We had relied on
the accuracy of the self-serving statements by the Superintendent
of Schools that all possible efforts were being made to eliminate the
shortages of teachers and other inequalities in Division 2 (colored).
Events during the past year make it appear that the Board’s
efforts are simply to relieve the extraordinary pressures of the
most glaring deficiencies in that Division. They are not intended
to “ equalize” the facilities between Division 1 and Division 2. This
has been admitted by the Superintendent of Schools. See Hearings
on 1954 D. C. Appropriation bill (H.R. 5471), Subcom. of Senate
Comm, on Appro., 83rd Cong., 1st sess., p. 172. Even if they would,
the District authorities cannot follow in the footsteps of those
State authorities who seek to avoid the legal repudiation of the
Plessy doctrine by promising to spend millions of dollars to pro
vide “ separate and equal” facilities. A charitable view, perhaps,
is that the District Board of Education realizes that equalization
is impossible within the segregated system and therefore is simply
marking time until this Court removes the legal bar to integration.
The result, however, is that the Board has sloughed onto this
Court the burden and responsibility for establishing moral treat
ment of the District’s school children which the Board itself ought
to carry.
10
characterized as “ very helpful” and “ thoughtful” the
160 written statements submitted by “ the organized
citizenry of Washington” when the Board of Education
invited “ statements expressing their ideas on the
mechanics of integration of the schools should the present
system of segregation be abolished by the Supreme Court’s
decision, and also on the methods to be employed to
educate the public for any change which may be required.”
“ The Superintendent and the officers will not be
unprepared in the event that major changes in the organ
ization are required.” Public Schools of the District of
Columbia, Report of the Superintendent of Schools to the
Board of Education, 1952-1953, pp. iii-iv (emphasis
supplied).
The other two cases here involved, which arise from
Virginia and South Carolina, do not require different
treatment by this Court. Significantly, although the
appellees in the Virginia case (Davis v. County School
Board of Prince Edward County, No. 4) stated that
segregation was designed to prevent violence and reduce
resentment, they frankly admitted that “ The passage of
time has removed violence and substantially removed
resentment in Virginia.” Brief for Appellees, No. 191,
Oct. Term, 1952, p. 17. In South Carolina, integration
of the public schools will involve a greater emotional ad
justment than in the other cases. But we believe the
people of South Carolina can and will make that adjust
ment. The events of World War II and its aftermaths
have in the past several years brought about a vast
reorientation of the community attitudes which formerly
buttressed racial segregation. More and more, the people
of the South are striving to discard the discriminations
which grew from previous prejudices.43 In ever growing
4a A notable example was the election, in the spring of 1953, of a
Negro (Dr. Rufus E. Clement, President of Atlanta University)
to the Board of Education of Atlanta, Georgia. He carried 8 "of
the City’s 9 wards, in an election where the white voters outnum
bered the colored voters, 92,000 to 18,000.
11
degree it is apparent that they would travel even faster
toward that objective were it not for the lag of the law.
South Carolinians respect the Constitution. They will,
under a positive ruling hy the highest Court of the land
that racial segregation is unconstitutional, comply with
that ruling in their public schools. The more positive the
ruling, the greater will be its acceptance.
D. The law versus lawlessness.
In any event, the possibility of local incident due to
racial friction, would provide, as this Court has time and
again reiterated, no relevant legal basis for depriving law
abiding persons of their legal rights. Buchanan v. Warley,
245 U. S. 60, 80-81 (1917); Mitchell v. United States, 313
U. S. 80, 97 (1941); Shelley v. Kraemer, 334 U. S. 1, 21
(1948). The Constitution does not surrender to
hooliganism; and there is no need to do so. Racial Violence
and Civil Rights Law Enforcement, 18 U. of Chi. L. Rev.
769 (1951); Frank, Can Courts Erase the Color Line?, 21
Journ. of Negro Educ. 304, 309-310 (1952).
QUESTION 5
"5. On the assumption on which questions 4(a) and (b)
are based, and assuming further that this Court w ill exer
cise 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 in
stance 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?"
12
I. W HAT THIS COURT'S DECREE SHOULD CONTAIN
This Court should not undertake, either itself or
vicariously through a special master, a detailed study of
local conditions and educational problems such as would
be necessary to formulate the specific terms of decrees
which will foresee and meet every possible contingency
concerning the many individuals and circumstances
involved in the readjustment of school districts, educational
methods, patterns of pupil attendance, etc., to meet the
over-riding requirements of the Constitution. Such
problems, if submitted to the judicial ken at all, are
properly the initial concern of courts of first instance
which, whatever their lack concerning great constitutional
issues, are more appropriate tribunals for dealing with
local problems. But even the courts of first instance can
not meet all problems in an identical way. Differences in
facts and unforeseen circumstances may compel variations
in approach, both in substance and procedure. We there
fore think this Court should remand these cases to the
courts of first instance with only the following directions:
(a) That the courts of first instance order and enjoin
the respective boards of education:
(1) to admit and educate the named minor com
plainants in these cases, if then qualified in all respects
that a white child would he qualified, and without
regard to his race or color, in such school as a white
child similarly situated would he admitted and
educated; the admission to be made at the beginning
of the school term immediately following the issuance
of this Court’s decision.®
(2) to refrain, in the administration of their
respective school systems, from making any dis- 5
5 Such a provision would apparently be moot in No. 1 (Brown
v. Board of Education o f Topeka) and No. 10 ( Gebhart v. Belton),
to the extent that the complainants in those cases have already been
admitted to unsegregated education.
1 3
tinction, or providing any difference in treatment or
education, solely on the basis of race or color, with
respect to any pupil or any child who seeks admission
in any school as a pupil; this injunction to become
effective immediately prior to the beginning of the
school term next following the issuance of this Court’s
decision.
(b) That the court of first instance retain jurisdiction
of the cases, at least during the period of transition, to
deal, upon motion by either side, with any special
problems which may arise in complying with the provisions
mentioned above.
II. THE PRINCIPLES WHICH SHOULD GOVERN
AN Y "G RAD U ALISM " POLICY.
The suggestions and recommendations we have just
made are based on the thesis that effective adjustment to
a nonsegregated system does not require detailed
administrative supervision by this Court or any special
limitations to slow down the normal functioning of its
decree. But if this Court determines that “ an effective
gradual adjustment . . . to a system not based on color
distinctions” requires slower implementation of its
decision holding racial segregation in public schools
unconstitutional,6 we urge that this Court apply such
“ gradualism” policy in a manner (a) that would not
deprive any individual child of its personal and present
rights under our fundamental Charter of Liberties, and
(b) that would not serve local bodies with an, excuse for
interminably dragging their heels.
6 As indicated above, we assume that Questions 4 and 5 were
intended to apply to the admission, not of the named complainants,
but only of those members of the class not named as parties in
these cases. In any event, we think that the principles mentioned
in the text of this section require granting to the named com
plainants the relief urged in section II of our answers to Question
4. To delay the complainants’ enjoyment of their rights after this
Court has announced their rights would be to deny them their
rights.
14
III. THE "V O LU N TA R Y" METHOD OF
GRADU AL ADJUSTMENT.
One method which may slow down the process of
integration without violating the rights of individual
children, or operating on a 1000 years schedule, is to
permit school boards to operate without readjustment
until such time as children desiring integrated education
apply for admission to schools hitherto attended by
children of another race. In many areas, there may be a
diffidence to voluntary mixing of school children hereto
fore separately educated which may result in slower
integration than would occur where the compulsory school
attendance laws are invoked to aid integration. When a
child applies for admission to a school theretofore
attended by children of other races, the process of re
adjustment to integration will and should begin. What
ever problems may arise can and should he dealt with
then. The duty of the school authorities is to maintain
orderly school programs without regard to race or color,
and to refrain from denying admission to any child in any
school, and from treating any child differently, at any
time, on the basis of race or color.
One advantage of this “ voluntary” method of achieving
gradual adjustment is that it would lean heavily on the
state of readiness each local community may have for
integration. One of its disadvantages would be the
tendency to substitute the irresponsibility and uncertainty
of “ mores” for orderly application of the compulsory
school laws in the context of constitutional requirements.
All other methods of gradual adjustment to racial in
tegration of the public schools which we have considered
either violate one or both of the principles mentioned in
the preceding section, or are, we think, appropriate only
for administrative or community action. Thus, procedures
such as integrating only a limited and specific number of
schools, or grades, per year, would wholly disregard the
rights and needs of individual children seeking non-
15
segregated education. Moreover, authorizing such
arbitrary methods would encourage evasiveness and
procrastination in conforming to the requirements of the
Constitution. The techniques of intercultural education,
use of media of mass communication, training of police,
teachers and administrators, etc., are obviously not
appropriate for utilization in judicial decrees.
We repeat and stand firm on our recommendations (a)
that this Court refrain from formulating detailed decrees
in these cases either sua sponte or upon recommendations
by a special master, and (b) that the task of monitoring
“ gradual adjustment” , if it is to he undertaken by the
judiciary, be delegated to courts of first instance with their
larger familiarity with local conditions, subject to appellate
review of any error committed.
This Court’s decrees should, wTe urge, follow the
principles discussed above, but not attempt beyond that
to circumscribe narrowly either the terms of the lower
courts’ decrees or their procedures in arriving at specific
terms. We concur with the Attorney General of Delaware
that “ the details” of gradual adjustment “ cannot be
worked out in a vacuum; and if this Court, or any lower
Court, should attempt at this time to work out a general
scheme, it would probably create more problems than it
would solve.” Brief for Petitioners on Reargument in
Gebhart v. Belton, No. 10, p. 44. The dynamics of integra
tion require much flexibility; and it is elementary that
“ courts deal with concrete legal issues, presented in actual
cases, not abstractions.” United States v. Appalachian
Elec. Power Go., 311 U. S. 377, 423 (1940). IV.
IV. "G R A D U A LISM " BY THE JUDICIARY
IS UNNECESSARY.
We desire to emphasize that the above suggestions con
cerning “ gradual adjustment” , sincerely made by us to
aid this Court if it chooses to follow such a policy, are not,
in our opinion, indispensable for effective adjustment to
16
integrated education. We think it is unnecessary for this
Court to espouse a formal policy of “ gradualism” now.
It was not deemed necessary, and its absence produced
no difficulties, when this Court decreed the end of racial
discrimination, whether by segregation or otherwise,
in voting,7 interstate travel,8 land ownership,9 D. C.
restaurants,10 employment,11 graduate education,12 jury
service,13 etc.
Experience shows that “ wherever segregation has been
abolished, no blood has flowed.” 14 The experience of
public school integration in New Jersey following the
adoption in 1947 of a constitutional provision forbidding
segregated schools is particularly instructive. Desegrega
tion was by constitutional command. Of many different
methods used in the various communities to integrate the
7 Sm ith v. Allw right, 321 U. S. 649 (1944); Schnell v. D avis, 336 U. S. 933
(1949); T erry v. A da m s, 345 XT. S. 461 (1953) ; L an e v . W ilson , 307 U. S. 268
(1939); B ice v. E lm ore, 165 F. (2d) 387 (C.A. 4, 1947), cert. den. 333 IT. S.
875 (1948).
8 H en derson v. U nited S ta tes, 339 U. S. 816 (1950); M organ v. Virginia,
328 U. S. 373 (1946) ; B o b -L o E xcu rsion Co. v. M ichigan, 333 U. S. 28 (1948).
» Shelley v. K ra em er, 334 IT. S. 1 (1948); H urd v. H o d g e , 334 IT. S. 24
(1948) ; Buchanan v. W a rley , 245 U. S. 60 (1917); H arm on v. T yler , 273
IT. S. 668 (1927); C ity o f Richm ond v. D eans, 281 IT. S. 704 (1930) ; Barrows
v. Jackson, 346 IT. S. 249 (1953); O yam a v. California, 332 U. S. 633 (1948).
10 D istrict o f Columbia v. John B . Thom pson Co., In c ., 346 IT. S. 100 (1953).
11 B ailw ay M ail A s s ’n. v. Corsi, 326 IT. S. 88 (1945); T ick W o v. H opkins,
118 IT. S. 356 (1886) ; Takahashi v. F ish $ Game C om m ., 334 U. S. 410 (1948);
Graham v. B rotherhood o f L ocom otive F irem en E nginem en, 338 IT. S. 232
(1949) ; Brotherhood o f Railroad Trainm en v. H ow ard , 343 U. S. 768 (1952).
12 S w ea tt v. Painter, 339 IT. S. 629 (1950); M cL a u rin v. Oklahoma State
R egen ts, 339 IT. S. 637 (1950); Sipuel v. B oard o f R egen ts, 332 IT. S. 631
(1948); M issouri ex rel. Gaines v. Canada, 305 IT. S. 337 (1938).
is E x parte Virginia , 100 IT. S. 339 (1880); Virginia v. R ives, 100 IT. S.
313 (1880); H ill v. T exas, 316 IT. S. 400 (1942); Cassell v. T exas, 339 IT. S.
282 (1950); A v e r y v. Georgia, 345 IT. S. 559 (1953).
li T im e magazine, W h en the B arriers F all, p. 40 (Aug. 31, 1953) ; Frederic
Wertham, Psychiatric O bservations on A bolition o f School Segregation , 26 J.
of Educ. Soc. 333 (March 1953); Balph T. Jans, Racial In tegra tion at Berea
College, 1950 -1953, 22 J. of Neg. Ed. 26 (Winter 1953).
17
public schools, no single formula outranked the others in
effectiveness. What the New Jersey experience proved
was “ that the best way to integrate is to do it.” 15
Respectfully submitted,
A merican V eterans Committee, I nc.
Amicus Curiae
By P hineas I ndritz
National Counsel
American Veterans Committee
November 30, 1953
Washington, D. C.
15 Joseph L. Bustard, The N ew J ersey S to r y : The D evelopm en t o f Racially
Integrated Public Schools, 21 J. of Neg. Ed. 275, 285 (Summer 1952).
O f f i c e -Suprem e Court,
F - I L U D
OCT 13 1952
:?.E cr.c-rL£Y
m THE
(Enurt at tfje BtnUa
October T erm, A. D. 1952.
No. 8
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.
BRIEF OF THE AMERICAN FEDERATION OF
TEACHERS AS AMICUS CURIAE.
JOHN LIGTENBERG,
Counsel for
American Federation of Teachers.
Selma M. B orchardt,
Of Counsel.
C H A M P U N -S H E A L Y C O M P A N Y , C H I C A « 0 < a«o
I N D E X .
PAGE
Motion for Leave to File Brief as amicus curiae.......... 1
Brief of the American Federation of Teachers as
amicus curiae ................................................................ 3
Opinions Below ........................................................ 4
Statutes Involved...................................................... 4
Question Presented .................................................. 4
Statement.................................................................... 4
Summary of A rgum ent:.................................................. 4
Argument:
I. The Statutes of Kansas, Providing for segrega
tion of students in the public schools, violates
the requirements of the equal protection clause
of the 14th Amendment. The doctrine of “ sepa
rate but equal facilities” is fallacious............... 5
II. Segregation in public schools inevitably results
in inferior educational opportunities for the
Negro ...................................................................... 9
III. Segregation in public schools of learning de
prives the Negro student of an important ele
ment of the education process and he is thereby
denied the equal educational opportunities man
dated by the Fourteenth Amendment.................. 11
Conclusion ............................................................................ 15
Table of Cases.
Missouri ex rel. Gaines v. Canada, registrar, 305 U. S.
337, 344 ........................... ............................................... 6
Oyaraa v. California, 332 U. S. 633, 640, 646 ................ 6
Plessy v. Ferguson, 163 U. S. 537, 550 ......................... 5, 6,7
Shelley v. Kraemer, 334 U. S. 1 ..................................... 6, 8
Sipuel v. Board of Regents of the University of Okla
homa, 332 U. S. 631........................................................ 6
Takahashi v. Fish & Game Commission, 332 U. S. 410 6
Sweatt v. Painter, 339 U. S. 629 ....................................... 7
McLaurin v. Oklahoma State Regents, 339 U. S. 637... 7, 8
Statutes.
See Appellants’ Briefs.
M iscellaneous.
Deutscher, Max, and Isidor Chain, The Psychological
Effects of Enforced Segregation: A Survey of Social
Science Opinion, Journal of Psychology, 1948-26, pp.
259-287 ............................................................................ 13
Hartmann, George W., Educational Psychology, Fore
word, p. VI, American Book Co., 1940 ....................... 12
Journal of Negro Education, Summer 1947.................. 10
Judd, Charles H., Educational Psychology, p. 3, Hough
ton Mifflin, 1939 .............................................................. 12
Lewin Kurt, “ Resolving Social Conflicts,” pp. 174 and
214, Harper & Bros., 1948 ............................................. 13
National Survey of the Higher Education of Negroes,
Vol. 1 ................................................................................ 10
Negro Year Book, Tuskegee Institute, 1947. “ The Ne
gro and Education,” p. 56. W. Harden Hughes.......... 9
Public School Expenditures, Dr. John Norton and Dr.
Eugene S. Lawler, American Council on Education,
1944 ...................................................................... 10
111
Socio-Economic Approach to Educational Problems,
Misc. No. 6, Vol. 1, p. 1, Federal Security Agency,
U. S. Office of Education, Wash., 1942 ....................... 11
The Black & White of Rejections for Military Service,
American Teachers Assn. Studies, ATA Montgom
ery, Ala., 1944 ................................................................ 10
The Legal Status of the Negro (p. 134), Charles S.
Mangum, Jr., Chapel Hill University of N. C. Press,
1940 ..................................................................................... 9
Vocational Education and Guidance of Negroes, Bulle
tin No. 38,1937, U. S. Dept, of Interior, Office of Edu
cation, p. 1 3 ....................................................................... 9
1ST THE
§uprmT (Umirl 0! tlfp Mnitrb States
October T erm, A. D. 1952.
No. 8
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.
MOTION FOR LEAVE TO FILE BRIEF
AMICUS CURIAE.
To the Honorable Chief Justice and Associate
Justices of the Supreme Court of the United States.
The undersigned as counsel for and on behalf of Amer
ican Federation of Teachers, respectfully moves this Hon
orable Court for leave to file the accompanying brief as
Amicus Curiae. Consent has been given by counsel for ap
pellants and appellees. The letters giving such consent
accompany this brief.
2
The American Federation of Teachers is an organiza
tion of more than 350 locals of 60,000 teachers throughout
the country, committed to a policy of “Democracy in Educa
tion—Education for Democracy” . Its membership consists
chiefly of classroom teachers who do the actual work of
teaching the children in the nation’s schools.
In its own affairs it is committed to a practice of com
plete equality and non-segregation between teachers of
every race. Its Constitution provides:
“ Section 11 (of Article III). No discrimination shall
ever be shown toward individual members, or appli
cants for membership because of race * *
It has worked unceasingly throughout its history, and
with greater intensity in recent years, for the abolition of
all forms of discrimination and segregation in education
based on racial differences.
Its members, as shown by the proceedings of its national
conventions, have repeatedly asserted a fixed opinion that
segregated school systems are a basic violation of the Equal
Protection Clause of the Fourteenth Amendment.
John L igtenberg,
Counsel for the American Federation
of Teachers.
Selma M. B orchardt,
Of Counsel.
IN THE
(Hmtrt nf tl?r Mnttr5 States
October T erm, A. D. 1952.
No. 8
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.
BRIEF OF THE AMERICAN FEDERATION OF
TEACHERS AS AMICUS CURIAE.
The American Federation of Teachers submits this brief
as amicus curiae in view of the great importance to de
mocracy and the cause of education of the constitutional
issue involved in these cases.
Opinions Below.
Statutes Involved.
The opinions below and the statutes involved are set out
in the brief of the appellants.
4
Question Presented.
The general question presented by this appeal is whether
the State of Kansas is violating the mandates of the
Fourteenth Amendment by its practice of maintaining
separate schools for the education of white and colored
children.
Statement.
This is a class action in which plaintiffs seek a decree
declaring Section 72-1724 of the General Statutes of Kan
sas, 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.”
Pursuant to this statute, the City of Topeka, Kansas, has
established and maintains a segregated system of schools
for the first six grades. The City of Topeka is one school
district. The district maintains eighteen schools for white
children and four for colored children.
The case was heard by a three judge statutory court.
The court found as a fact that the facilities in the schools
for colored children were substantially equal. Hence the
issue here is whether segregation of children in the grade
schools is per se a denial of equal protection of the laws.
Summary of Argument.
In this brief amicus curiae the American Federation of
Teachers will argue that segregation in the schools violates
basic principles of the educational process; that Negroes
forced by state law to attend segregated schools are, by
virtue of such segregation denied the equal protection of
the laws, in violation of the Fourteenth Amendment,
5
A R G U M E N T .
I .
The Statute of Kansas, providing for segregation of stu
dents in the Public Schools, violates the requirements of
the equal protection clause of the Fourteenth Amend
ment. The doctrine of “ Separate but Equal” facilities
is fallacious.
The Fourteenth Amendment to the Constitution, in Sec
tion 1, provides:
“ All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are cit
izens of the United States and of the State wherein
they reside. 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 de
prive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
The Fourteenth Amendment made Negroes citizens of
the United States and was intended further to protect them
fully in the exercise of their rights and privileges. To
make sure that this intent was fully known, Congress re
fused to readmit Southern States or seat their representa
tives until the states accepted the Fourteenth Amendment.
Its adoption, however, did not stop the practice of segre
gation in the Southern States, and when that issue was pre
sented to this Court in 1896, in Plessy v. Ferguson, 163 U. S.
537, 550 (1896), involving a Louisiana statute which re
quired separation of Negro and white passengers, this
Court said:
“ . . . We cannot say that a law which authorizes or
even requires the separation of the two races in public
6
conveyances is unreasonable, or more obnoxious to
the Fourteenth Amendment than the acts of Congress
requiring separate schools for colored children in the
District of Columbia, the constitutionality of which
does not seem to have been qustioned, or the corre
sponding acts of state legislatures.”
In Missouri ex rel. Gaines v. Canada, registrar, 305 U. S.
337, 349, this Court said:
“ The admissibility of laws separating the races in
the enjoyment of privileges afforded by the State rests
wholly upon the equality of the privileges which the
laws give to the separated groups within the State.”
Recently, the doctrine of “ separate by equal” facilities
expressed in the Plessy and Gaines cases was held to be a
menace to American democracy and indefensible by the
President’s Committee on Civil Rights which unequivocally
advocated that it be eliminated. In its report, the Commit
tee said:
“ The separate but equal doctrine has failed in three
important respects. First, it is inconsistent with the
fundamental equalitarianism of the American way of
life in that it marks groups with the brand of inferior
status. Secondly, where it has been followed, the re
sults have been separate and unequal facilities for mi
nority peoples. Finally it has kept people apart de
spite incontrovertible evidence that an environment
favorable to civil rights is fostered whenever groups
are permitted to live and work together. There is no
adequate defense of segregation.” *
Furthermore, recent decisions of this Court enunciate
principles in conflict with the rationale of the Plessy and
Gaines cases. These include: Takahashi v. Fish <& Game
Commission, 332 U. S. 410; Oyarna v. California; 332 U. S.
633, 640, 646 (1948); Sipuel v. Board of Regents of the Uni
versity of Oklahoma, 332 U. S. 631 (1948); Shelley v.
Kraemer, 334 U. S. 1 (1948).
7
In the Shelley case, this court, in considering private
agreements to exclude persons of designated race or color
from the use or occupancy of real estate for residential pur
poses and holding that it was violative of the equal protec
tion clause of the Fourteenth Amendment for state courts
to enforce them said (at p. 23):
“ The historical context in which the Fourteenth
Amendment became a part of the Constitution should
not be forgotten. Whatever 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 or color.”
These principles cast doubt on the soundness of the rule
laid down in the Plessy and Gaines cases. We submit that
it should no longer be followed.
Nowhere has the fallacy of the doctrine of “ separate but
equal” facilities been more apparent than in the grade and
high schools of the country. Elsewhere, in this brief we
shall point out the sociological effects of this practice.
In Sweatt v. Painter, 339 U. S. 629, 70 S. Ct. Rep. 848, the
court held that a separate law school established by Texas
for Negro students could not be the equal of the University
of Texas Law School.
In McLaurin v. Oklahoma State Regents, 339 U. S. 637,
70 S. Ct. Rep. 851, the court held that the requirements of
state law that the instruction of a Negro graduate student
in the University of Oklahoma be “ upon a segregated basis”
deprived the appellant in that case of his personal and
present right to the equal protection of the laws.
There is no reason in experience for applying a different
logic to children in grade and high schools. As the court
8
there said, our society grows increasingly complex and our
need for trained leaders increases correspondingly.
We cannot give separate training to two segments of so
ciety and then expect that some magic will merge the indi
vidual from these segments into equal citizens having equal
opportunities.
It is a mockery to say that those who aspire to teach
and lead must have equal opportunity regardless of race,
and still condemn to inequality those they are to teach
and lead.
Ninety years of segregated schools demand the historical
judgment that separate facilities are inevitably unequal
and are not the way to equal opportunity.
In the segregated school system the growing citizen
never has the chance to show his equal ability; he never
has the
“ opportunity to secure acceptance by his fellow stu
dents on his own merits.” McLaurin v. Oklahoma
State Regents, 339 U. S. 637, 641.
He must wait until he has finished what schooling he gets
before he enters the competition. For him “ the personal
and present right to the equal protection of the laws” is
of as great practical importance as for the graduate
student.
The Fourteenth Amendment is not for law students and
postgraduates alone. It is meaningless if it does not apply
to all children from the first day they enter the public
schools.
To paraphrase the decision in the Shelley case, it seems
to us that the segregation of students in public education
as required by the Kansas Statute, violates the primary ob
ject of the Fourteenth Amendment : “ . . . the establishment
of equality in the enjoyment of basic civil and political
9
rights and the preservation of those rights from discrim
inatory action on the part of the States based on consid
erations of race or color.”
I I .
Segregation in public schools inevitably results in inferior
educational opportunities for the Negro.
Commenting on the study of Dr. John Norton and Dr.
Eugene Lawler—Public School Expenditures (1944) W.
Harden Hughes states:
“ The contrasts in support of white and Negro schools
are appalling . . . the median expenditure per standard
classroom unit in schools for white children is $1,160
as compared with $476 for Negro children. Only
2.56% of class rooms in the white schools fall below the
$500 cost level while 52.59% of the class rooms for
Negro children are below this level.”1
“ The state supported institutions of higher learning
for Negroes are far inferior” states Charles S.
Mangum, Jr., “ to their sister institutions for whites.
Most of the inequalities which have been noted herein
with respect to the public schools for whites and
Negroes are also present in the Negro normal and
technical schools. . . . There is hardly one among them
that could compare with any good white college in the
same area.” 1 2
Statistics on vocational education in the land grant
schools and colleges among Negroes show:
“ that of the federal funds allotted for vocational train
ing in 1934-35 white schools received 88.2% and Negro
schools 11.8%.”3
1 Negro Year Book, Tuskegee Institute 1947. “ The Negro and Edu
cation.” W . Harden Hughes, p. 56.
2 The Legal Status of the Negro (p. 134), Charles S. Mangum, Jr.,
Chapel Hill University of N. C. Press, 1940.
3 Vocational Education and Guidance of Negroes, Bulletin No. 38,
1937, U. S. Dept, of Interior, Office of Education, p. 13.
10
A recommendation of this report (1934-35) was:
“ that individuals and groups interested in the improve
ment of educational facilities continue and increase
their efforts to promote equitability of educational op
portunity and equitability in the distribution of funds
without regard to race or color.” 4
In Texas, the expenditure for public schools was $1400
for whites per classroom unit and $700 for Negroes.4
There is a corresponding discrimination in school trans
portation, salaries of teachers, library service and provi
sion for training beyond the secondary school.
Several recent studies,5 as well as many previous ones,
all indicate the great disparity between the educational op
portunities afforded white youth and those offered to Negro
youth in the states where a segregated and discriminatory
system of education prevails.
So obvious are the inequalities that in Vol. 1 of the Na
tional Survey of the Higher Education of Negroes we find
this statement: “ No one with a knowledge of the facts
believes that Negroes enjoy all the privileges which Amer
ican democracy expressly provides for the citizens of the
U. S. and even for those aliens of the white race who reside
among us. The question goes much deeper than the Negro
citizens’ legal right to equal educational opportunity. The
question is whether American democracy and what we like
to call the American way of life, can stand the strain of
perpetuating an undemocratic situation; and whether the
nation can bear the social cost of utilizing only a fraction
‘ Public School Expenditures, Dr. John Norton and Dr. Eugene S.
Lawler, American Council on Education, 1944.
' The Black & White of Rejections for Military Service, American
Teachers Assn. Studies, A T A Montgomery, Ala., 1944; Public School
Expenditures ;in the U. S., Dr. John K. Norton and Dr. Eugene S.
Lawler; American Council on Education, Wash., D. C., 1944; Journal
of Negro Education, Summer 1947.
11
of the potential contribution of so large a portion of the
American population. ’ ’ 6
The Constitution is a living instrument, and a “ separate
but equal” doctrine based upon antiquated considerations,
should not, at this time, and in this advanced era, be per
mitted to perpetuate a situation which denies full equality
to Negroes in the pursuit of education.
I I I .
Segregation in public schools deprives the Negro student of
an important element of the education process and he is
thereby denied the equal educational opportunities man
dated by the Fourteenth Amendment-
The practice of segregation in the field of education is a
denial of education itself. Education means more than
the physical school room and the books it contains, and the
teacher who instructs. It includes the learning that comes
from free and full association with other students in the
school. To restrict that association is to deny full and
equal opportunities in the learning process. To restrict
that association is to deny the constitutional guarantee.
Psychologists show us that learning is an emotional as
well as an intellectual process: that it is social as well as
individual, and is best secured in an environment which
encourages and stimulates the best effort of the individual
and holds out the hope that this best effort will be accepted
and used by society.
From infancy to adulthood the most satisfactory person
ality development occurs when the individual:
a. feels he is accepted and wanted by his community
* Socio-Economic Approach to Educational Problems, Misc. No. 6,
Vol. 1, p. 1, Federal Security Agency, U. S. Office of Education, Wash.,
1942.
12
b. secures aid and encouragement in his activities
c. has the satisfaction of contributing to the group
without too many frustrating experiences
d. receives the approval of the group or some evi
dence of recognition.
“Another obvious fact about human development is
that it is greatly facilitated by social contacts. . . .
Social contacts make possible the enlargement of per
sonal experience by fusing into it the accumulated ex
periences of the race.”7 (Here human race is in
tended.)
“ More recently psychologists and other students of
education have gained a livelier appreciation of the
fact that learning does not take place merely because
there exists an intelligence or mind. The physical con
dition of boys and girls, their emotional responses
both in school and out, all the environmental factors
which impinge upon them have influence upon their
growth and development.”8
“ The security needs of children (and adults too)
are more numerous and complicated than the elimina
tion of gross fears suggests. They seem to be related
to a larger but more subtle need which may be here
labeled as the need for orientation. A person finds it
desirable to know where he is in the world and how
he stands with his fellows. To be ‘lost’ in either re
spect is to be in an uncomfortable frame of mind. Not
to be spatially, temporally and socially oriented is to
be deprived of the prime conditions for effective learn
ing and growth.” 9
In every situation there is the inter-relation of the indi
vidual to his group—which is one that increases with his
maturity. First it is the family, then the local community,
then the state, the nation, and finally the entire world. At
'Judd, Charles H., Educational Psychology, p. 3, Houghton Mifflin,
1939.
8 Hartmann, George W., Educational Psychology, Foreword, p. VI,
American Book Co., 1940.
8 Hartmann, George W., Educational Psychology, p. 240, American
Book Co., 1940.
13
no stage of development should any barriers be erected to
prevent the individual from moving from a narrower group
to a larger one, particularly barriers on race. As Lewin
states:
“ The group to which an individual belongs is the
ground on which he stands, which gives or denies him
social status, gives or denies him security and help.
The firmness or weakness of this ground might not be
consciously perceived, just as the firmness of the physi
cal ground on which we tread is not always thought
of. Dynamically, however, the firmness and clearness
of this ground determine what the individual wishes
to do, wliat he can do, and how he will do it. This is
equally true of the social ground as of the physical.”10 11
Again he states:
“ It should be clear to the social scientist that it is
hopeless to cope with this problem (discrimination) by
providing sufficient self esteem for members of minor
ity groups as individuals. The discrimination which
these individuals experience is not directed against
them as individuals, but as group members and only
by raising their self esteem as group members to the
normal level can a remedy be produced.” 11
An interesting survey of the opinion of social scientists
on the effects of enforced segregation was made by Drs.
Max Deutscher and Isidor Chein through a questionnaire12
to 849 social scientists in all parts of the country. The
questionnaire was answered by 571.
“ Ninety per cent of the total sample express the
opinion that enforced segregation has detrimental
effects on the segregated groups.” 13
10 Kurt Lewin, “ Resolving Social Conflicts,” p. 174, Harper & Bros.,
1948.
11 Ibid, p. 214.
12 Max Deutscher and Isidor Chein, The Psychological Effects of En
forced Segregation: A Survey of Social Science Opinion, Journal of
Psychology, 1948-26, pp. 259-287.
“ Page 265— above survey.
14
“ Eighty-three per cent of the respondents believe
that enforced segregation has detrimental psychologi
cal effects on the group which enforces segregation.”14
A few quotations from the social scientists make clear
their views: “ Feelings of not being wanted, of being classi
fied as inferiors, of being assigned to low places are de
structive to personality and development and injurious
alike to slave and master.” 15
“ Clinical experience and experimental evidence point
unmistakably to the conclusion that segregation implies
a value judgment which in turn arouses hostility in the
segregated and guilt feelings in the segregator. The
effect is to set up a vicious circle making for group
conflict.” 16
“ I don’t see how anyone could question the state
ment that power over others—to segregate or any
other power—has a psychological effect on both par
ties or that this effect is bad in any sense for the less
powerful groups. The more powerful group may
like the effect it has on itself in short term values,
but hatred, rebellion, or dispair are attitudes they
have aroused toward themselves and they will always
have to cope with these results sooner or later unless
they can practically eradicate the whole minority as
Europeans did with the American Indian.” 17
If education can be made available to all so that each may
develop to the fullest and give his contribution to society,
we will find a peaceful way—rather than one of human de
struction and tragedy—to bring freedom and justice to
peoples.
The American Federation of Teachers believes that seg
regated and discriminatory education is undemocratic and
contrary both to sound educational development as well as
14 (See Footnote 12), p. 265.
“ (See Footnote 12), p. 274.
M (See Footnote 12), p. 275.
” (See Footnote 12), p. 279.
15
to the basic law of the land—the United States Constitu
tion. We subscribe to the principle that democratic educa
tion provides a total environment which will enable the
individual to develop to his capacity, physically, emotion
ally, intellectually and spiritually.
For such training to be fully effective, it is essential
that each individual participate, without barriers of race,
creed, or national origin, as a full fledged member in the
home, the community, the state and the nation.
Accordingly, any restriction, particularly in the form of
segregated and discriminatory schooling, which prevents
the interplay of ideas, personalities, information and atti
tudes, impedes a democratic education and ultimately pre
vents a working democracy.
Conclusion.
Segregation of Negroes in public schools in any of our
States inevitably results in depriving Negroes of educa
tional opportunities provided by those States for white
citizens. Negroes in such States are thereby denied the
equal protection of the laws mandated by the Fourteenth
Amendment. This Court should end these violations of the
constitutional mandate by reversing the judgment in this
case and granting the appellants the relief they pray for.
ec^ullv/submitted,
E N B E j
ja Sail
Chicago 2, Illinois.
Counsel for American Federation
of TeacherSj Amicus Curiae.
Selma M. B orchardt,
Homer Building,
Washington, D. C.,
Of Counsel.
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
OLIVER BROW N, MRS. RICHARD L A W TO N ,
MRS. SADIE EM M ANUEL, e t a l .
Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SH AW N EE
COUNTY, K ANSAS, e t a l .,
Appellees.
BRIEF ON BEH ALF OF
A M E R IC A N CIVIL LIBERTIES UNION
A M E R IC A N ETH ICAL UNION
A M E R IC A N JEW ISH COM M ITTEE
A N T I-D E F A M A T IO N LEAGU E OF B’ NAI B’RITH
JAPAN ESE A M E R IC A N CITIZEN S LEAGU E
A N D
U N ITA R IA N FELLOW SH IP FOR SOCIAL JUSTICE
AS A M I C I C U R I A E
Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays,
Frank E. Karelsen,
of the New York Bar,
Leonard Haas,
of the Georgia Bar,
Saburo Kido,
of the California Bar,
W aldo B. W etmore,
of the Kansas Bar,
Attorneys for Amici Curiae.
T heodore Leskes,
Sol Rabkin,
of the New York Bar,
of Counsel.
BAR PRESS IN C ., 5 4 LAFAYETTE S T ., NEW YORK 13 ---- W A. 5 - 3 4 3 2 - 3 .
TABLE OF CONTENTS
PAGE
Interest of the A mici ......................................................... 1
Statement of the Case .................................. 3
The Statute Involved ................................... 4
The Question Presented 4
Summary of A rgument ....................................................... 5
Argument
I. The validity under the equal protection of
the laws clause of the Fourteenth Amend
ment of racial segregation in public educa
tional facilities has never been decided by
this Court ................................................... 6
II. Racial segregation in public educational
institutions is an unconstitutional classifi
cation under the equal protection of the
laws clause of the Fourteenth Amendment 12
III. The finding of the court below, that Negro
children are disadvantaged by the segre
gated public school system of Topeka, re
quires this Court to disavow the “ separate
but equal” doctrine as it has been applied
to public educational institutions .................... 16
Conclusion .................................................................................. 28
Appendix ....................................................................................... 33
11 Index
Table of Cases
PAGE
Bailey v. Alabama, 219 U. S. 219 (1911) ................... 13
Banks v. San Francisco Housing Authority, decided
by tlie Superior Court of San Francisco, Cal.,
Oct. 1, 1952 ............................................................... 19
Belton v. Gebliart, decided by the Supreme Court of
Delaware, Aug. 28, 1952 ......................................... 19
Berea College v. Kentucky, 211 U. S. 45 (1908)...... 8
Briggs v. Elliott, 98 F. Supp. 529 (1951).................... 19
Brotherhood of R. R. Trainmen v. Howard, — U. S.
—, 72 S. Ct. 1022 (1952) .......................................... 13
Brown v. Board of Education of Topeka, 98 F. Supp.
797 (1951) ................................................................. 18,19
Brown v. Mississippi, 297 U. S. 278 (1936) .............. 13
Buchanan v. Warley, 245 U. S. 60 (1917) .................. 13,14
Chambers v. Florida, 309 U. S. 227 (1940)................ 13
Gumming v. County Board of Education, 175 U. S.
528 "(1899) ................................................................. 7
Fisher v. Hurst, 333 U. S. 147 (1948) ........................10,18
Gong Lum v. Rice, 275 U. S. 78 (1927).......... 5, 9,10,11,18
Grovey v. Townsend, 295 U. S. 45 (1935).................... 19
Guinn v. U. S., 238 IT. S. 347 (1915).............................. 14
Hall v. DeCuir, 95 U. S. 485 (1878) ............................ 6, 7
Henderson v. U. S., 339 U. S. 816 (1950).................... 13
Hirabayashi v. U. S., 320 U. S. 81 (1943)............12,15,16
Jones v. Opelika, 316 U. S. 584 (1942)........................ 19
Korematsu v. U. S., 323 U. S. 214 (1944) .................. 12,15
Index
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61
(1911) ........................................................................ 12
McCabe v. Atchison, T. & S. F. B. Co., 235 U. S. 151
(1914) ....................................................................... 10
McGee v. Mississippi, — Miss. —, 40 So. 2nd 160
(1949) ........................................................................ 28
McLaurin v. Oklahoma State Board of Begents, 339
II. S. 637 (1950) ....................................... 8,10,11,18, 20
Minersville School District v. Gobitis, 310 U. S. 586
(1940) ........................................................................ 19
Missouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938) .....................................................................9,10,18
Mitchell v. U. S., 313 U. S. 80 (1941).......................... 13
Morgan v. Virginia, 328 U. S. 373 (1946).................. 13
Murdock v. Pennsylvania, 319 IT. S. 105 (1943) 19
Nixon v. Herndon, 273 U. S. 536 (1927)...................... 14
Ovama v. California, 332 U. S. 633 (1948) 12
Plessy v. Ferguson, 163 U. S. 537 (1896)
5, 7, 8,10,11,18,19, 20
Shelley v. Kraemer, 334 U. S. 1 (1948) ..................... 13,14
Shepherd v. Florida, 341 U. S. 50 (1951).................. 13
Sipuel v. Board of Begents of the University of
Oklahoma, 332 U. S. 631 (1948) ............................10,18
Smith v. Allwright, 321 U. S. 649 (1944)..................... 14, 19
Steele v. Louisville & Nashville Bailroad Co., 323
U. S. 192 (1944) ....................................................... 13
Strauder v. West Virginia, 100 U. S. 303 (1880)...... 13
Sweatt v. Painter, 339 U. S. 629 (1950) .......... 8,10,18,20
Takahashi v. Fish & Game Commission, 334 U. S.
410 (1948)
PAGE
14
IV Index
Tunstall v. Brotherhood of Locomotive Firemen, 323
U. S. 210 (1944) ....................................................... 13
U. S. v. Reynolds, 235 U. S. 133 (1914)........................ 13
West Virginia State Board of Education v. Barnette,
319 17. S. 624 (1943) ............................................... 19
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ............... 14
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926) 14
Other A uthorities Cited
Adorno, Frenkel-Brunswik, Levinson and Sanford,
The Authoritarian Personality (1950) 18
52 American Jewish Yearbook (1951).......................... 20
Antwerp Le Matin, May 1951 ........................................ 31
The Austin Statesman, November 14, 1950 21
Biennial Report, 1949-1951, State of New Jersey,
Dep’t. of Education, Division Against Dis
crimination ...............................................................25, 26
Bond, Education of the Negro in the American Social
Order (1934) ............................................................. 17,27
Chicago Sun-Times, September 26, 1950 ...................... 24
Cologne Welt Der Arbeit, April 7, 1950 30
Dallas Times Herald, October 2, 1951 20
Dawkins, Kentucky Outgrows Segregation, The Sur
vey, July 1950 ........................................................... 21
Dayton Journal Herald, June 23, 1950 25
Frenkel-Brunswik, A Study of Prejudice in Children,
1 Human Relations 295 (1948)............................... 18
PAGE
Index v
Gallagher, American Caste and the Negro College
(1938) ..................................................................... 17
Goodman, Race Awareness in Young Children (1952) 18
Heinrich, The Psychology of a Suppressed People
(1937) ....................... 17
The Houston Chronicle, Sept. 10, 1952 20
The Houston Informer, December 5, 1951 20
The Houston Post, January 9, 1951 ............ 20
Little Rock Arkansas Gazette, July 1, 1951 21
Long, The Intelligence of Colored Elementary Pupils
in Washington, D. C., 3 J. of Negro Ed. 205
(1934) ........................................................................ 17
Long, Some Psychogenic Hazards of Segregated
Education of Negroes, 4 J. of Negro Ed. 336
(1935) .................................................. ..................... 17
Marseilles Semailles, May 18, 1951 .............................. 29
Miami Herald, May 6, 1951 21
46 Michigan L. Rev. (1948) ........................................... 7
Morisey, A New Trend in Private Colleges, New
South, Aug.-Sept. 1951 22
Myrdal, An American Dilemma (1944) ...................... 6,18
New York Herald Tribune, June 23, 1949.................... 21
New York Herald Tribune, Sept. 28, 1951.................. 22
New York Post, Aug. 24, 1948 ..................................... 21
The New York Times, January 30, 1950 24
The Oklahoma City Daily Oklahoman, June 7, 1951 20
Paris L ’Aube, May 9, 1951 ............................................29,30
Pittsburgh Courier, December 1, 1951............................ 24
PAGE
VI Index
PAGE
President’s Commission on Higher Education, Higher
Education for American Democracy (1947)...... 17
President’s Committee on Civil Eights, To Secure
These Rights (1947) ............................................ 27
Richmond News Leader, September 25, 1952.............. 22, 23
Santa Fe New Mexican, September 2, 1951................ 23
Saveth, The Supreme Court and Segregation, The
Survey, July 1951 ................................................... 23
Segregation in Public Schools—A Violation of
“ Equal Protection of the Laws’ ’, 56 Yale L. J.
1059 (1947) ............................................................... 17
St. Louis Globe-Democrat, April 17, 1952.................... 22
St. Louis Post-Dispatch, July 7, 1950; May 11, 1952.. 22
Thompson, C. H., Letter to the Editor, The New
York Times, April 6, 1952 ...................................... 27
Vienna Arbeiter-Zeitung, February 4, 1951.................. 29
Washington Times-Herald, July 17, 1951....................... 22
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
OLIVER BROW N, MRS. RICHARD L A W TO N ,
MRS. SADIE EM M ANUEL, et a l „
Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SH AW N EE
COUNTY, K ANSAS, et a l .,
Appellees.
BRIEF ON BEH ALF OF
A M E R IC A N CIVIL LIBERTIES UNION
A M E R IC A N ETH ICAL UNION
A M E R IC A N JEW ISH COM M ITTEE
A N T I-D E F A M A T IO N LEAGU E OF B’ NAI B’RITH
JAPAN ESE A M E R IC A N CITIZEN S LEAGUE
A N D
U N ITA R IA N FELLOW SH IP FOR SOCIAL JUSTICE
AS A M I C I C U R I A E
Interest of the Amici
This brief is filed, with the consent of both parties, on
behalf of the American Civil Liberties Union, the American
Ethical Union, American Jewish Committee, the Anti-
2
Defamation League of B ’nai B ’rith, the Japanese Ameri
can Citizens League and the Unitarian Fellowship for
Social Justice. The Appendix contains a description of
each of these organizations.
The present case and the companion cases, all involv
ing the constitutionality of racial segregation in public
elementary and secondary schools, present an issue with
which all six organizations are deeply concerned because
such segregation deprives millions of persons of rights
that are freely enjoyed by others and adversely affects
the entire democratic structure of our society.
We have read the briefs of the appellants, with the
appendix thereto, and we unequivocally endorse the argu
ments, legal, educational and sociological, therein advanced.
In this amici brief we are urging arguments which have
not been made in the appellants’ briefs and which we
believe should be presented to this Court.
3
Statement of the Case
The adult appellants are Negro citizens of the United
States and of the State of Kansas (R. 3-4) while the
infant appellants are their children eligible to attend and
now attending elementary schools in Topeka, Kansas, a
city of the first class within the meaning of Section 13-101,
General Statutes of Kansas, 1949. Appellees are State
officers empowered by State law to maintain and operate
the public schools of Topeka, Kansas.
On March 22, 1951, appellants instituted this action
seeking a declaratory judgment and an injunction to com
pel the State to admit Negro children to the elementary
public schools of Topeka on an unsegregated basis on the
ground that segregation deprived them of equal educa
tional opportunities within the meaning of the Fourteenth
Amendment (R. 2-7). In their answer, appellees admitted
that they acted pursuant to the statute, that infant ap
pellants were not eligible to attend any of the eighteen
“ white” elementary schools solely because of their race
and color (R. 12, 24), but that they were eligible to
attend the equivalent public schools maintained for Negro
children in the City of Topeka (R. 11, 12). The Attorney
General of the State of Kansas filed a separate answer
defending the validity of the statute in question (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 took place (R. 63 et seq.). On August 3,
1951, the court below filed its opinion, 98 F. Supp. 797 (R.
238-244), its findings of fact (R, 244-246), and conclusions
of law (R. 246-247), and entered a final judgment and de
cree in appellees’ favor denying the relief sought (R. 247).
Appellants filed a petition for appeal on October 1,
1951 (R. 248), and an order allowing the appeal was duly
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).
4
The Statute Involved
Segregated elementary schools in Topeka, Kansas, are
maintained solely pursuant to the authority of Section
72-1724 of the General Statutes of Kansas (1949) which
reads as follows:
Powers of hoard; separate schools for white and
colored children; manual training. The hoard of edu
cation 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 sep
arate 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 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 connec
tion with manual training and instruction or other
wise, 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;
R. S. 1923, §72-1724.)
The Question Presented
The question presented by this appeal is whether the
State of Kansas, or indeed any State, by establishing
racial segregation in its public elementary school system,
has violated the equal protection of the laws clause of the
Fourteenth Amendment to the United States Constitution.
5
SU M M A R Y OF A R G U M EN T
This Court has never ruled directly on the constitu
tionality of racial segregation in public elementary schools.
Plessy v. Ferguson, 163 U. S. 537 (1896) and Gong Lum
v. Rice, 275 U. S. 78 (1927), relied upon by the court
below, are not controlling here.
Segregation in State-supported educational institutions
violates the equal protection of the laws guaranteed by
the Fourteenth Amendment in that it is an inadmissible
classification. This Court has consistently rejected dif
ferential treatment by State authority predicated upon
racial classifications or distinctions.
The finding of the lower court that Negro children are
disadvantaged by the segregated public school system
necessitates granting the relief requested. That which is
unequal in fact cannot be equal in law and, therefore,
segregation and equality cannot co-exist in public educa
tion.
6
P O I N T I
The validity under the equal protection of the
laws clause of the Fourteenth Amendment of racial
segregation in public educational facilities has never
been decided by this Court.
Tlie issue now squarely before this Court is whether
the State of Kansas, pursuant to statute, may maintain
and operate racially segregated public elementary schools,
without heed to the damage inflicted by segregation upon
its Negro victims. Despite the transcendent importance of
the question, this Court has never ruled directly on the
constitutionality of racial segregation in public education.
The Court has ruled on related problems, such as the
validity of racial segregation in transportation and in
housing. Regretfully, it has, but always in dictum, ap
peared to accept racial segregation where the validity of
segregation was not actually before the Court. Historically,
these dicta reflect the fact that prior to World War I, the
status of the American Negro was such that he could make
no realistic demand for equality of treatment in those sec
tions of the country in which he lived in substantial num
bers. Because of his depressed economic condition and
concentration in agriculture, his children could not even
obtain the most elementary education. Myrdal, An Ameri
can Dilemma, Ch. 8-9 (1944).
Following the adoption in 1868 of the Fourteenth
Amendment, the earliest case in which some reference was
made by this Court to racial segregation in education was
Hall v. DeCuir, 95 U. S. 485 (1878). That case involved
the validity of a State statute prohibiting segregation in
7
public carriers. The statute was declared unconstitutional
as an improper regulation of foreign and interstate com
merce. In a concurring opinion, Mr. Justice Clifford re
viewed with approval the conclusions of a number of
State cases which had upheld the reasonableness of racial
segregation in education and stated in dictum that segre
gation in the public schools did not violate the Fourteenth
Amendment if physically equal facilities for Negroes were
provided. It is probably unnecessary for us to note that
no evidence was offered in that case, because it would have
been irrelevant, that school segregation must in fact in
volve inequality.
In 1896 this Court decided Plessy v. Ferguson, 163
U. S. 537 (1896), which sustained the constitutionality of
a Louisiana statute requiring public carriers to furnish
separate but equal coach accommodations for whites and
Negroes. The Court as before, in dictum, cited with ap
proval several old State cases which had held that a State
could require the segregation of racial groups in its edu
cational system.
The constitutionality of “ separate but equal’ ’ facili
ties in education was concededly not before the Court in
either the Hall or the Plessy cases. Yet, although there
was no evidentiary or psycho-sociological basis for a dis
cussion of equal facilities in education, and in spite of the
fact that the statements of the Court were cleai'ly dicta,
the Plessy case has been cited to this date by State and
lower Federal courts to sustain the constitutionality of
segregation in public educational institutions. See cases
cited, 46 Mich. L. Rev. 639, 643 (1948).
Three years later, this Court decided Cumming v.
County Board of Education, 175 U. S. 528 (1899). There
an injunction was sought to restrain a board of education
8
in Georgia from maintaining a high school for white chil
dren where none was maintained for Negro children. The
State court had upheld the board, saying that its alloca
tion of funds did not involve bad faith or abuse of dis
cretion. In affirming the decision of the State court, this
Court speaking through Mr. Justice Harlan, the lone dis
senter in Plessy, stated expressly that racial segregation
in the school system was not in issue. (542, 546)
The next case before this Court which involved com
pulsory educational segregation was Berea College v.
Kentucky, 211 U. S. 45 (1908), wherein the validity of a
State statute which prohibited domestic corporations from
teaching white and Negro pupils in the same private edu
cational institution was attacked. While the scope of the
statute was broad enough to include individuals as well
as corporations, this Court said:
. . . it is unnecessary for us to consider anything
more than the question of its validity as applied to
corporations. . . . Even if it were conceded that its
assertions of power over individuals cannot be sus
tained, still it must be upheld so far as it restrains
corporations. (54)
This Court agreed with the reasoning of the State
court that the statute could be upheld as coming within
the power of a State over one of its own corporate crea
tures. The statute was not deemed to have worked a dep
rivation of property rights. The rights of individuals were
not considered.1
1 Interestingly, since the decisions o f this Court in Sw eatt v.
Painter, 339 U . S. 629 (1 9 5 0 ) and in M cLaurin v. Oklahoma,
339 U . S. 637 (1 9 5 0 ), Berea College accepts N egro students.
9
Not until 1927 did racial classification in educational
institutions again become the subject of controversy be
fore this Court. In Gong Lum v. Rice, 275 U. S. 78 (1927),
a Chinese girl contested the right of the State of Missis
sippi to assign her to a Negro school under the State’s
segregated school system. Mississippi contended that
under its statute requiring separate schools to be main
tained for children of the white and colored races, the
plaintiff could not insist on being classed with the whites
and that the legislature was not compelled to provide
separate schools for each of the non-white races.
The issue of segregation was not presented in that
case. The plaintiff accepted the system of segregation in
the public schools of the State but contested her classifi
cation within that system.
Nor was the validity of segregation before the Court
in the case of Missouri ex rel. Gaines v. Canada, 305 U. S.
337 (1938). There the petitioner was refused admission
to the University of Missouri Law School, a State-sup
ported institution, solely because he was a Negro. He
brought mandamus to compel the University to admit him.
The State, having no law school for Negroes, sought to
fulfill its obligation to provide equal educational facilities
by offering to pay the petitioner’s tuition for a legal edu
cation in another State. This the Court held did not sat
isfy the constitutional requirement. It said that the peti
tioner Avas entitled to be admitted to the University of
Missouri Law School in the absence of other and proper
provision for his legal training Avithin the State of Mis
souri. The issue Avas whether an otherAvise qualified Negro
applicant for law training could be excluded from the
only State-supported laAV school. This Court assumed that
10
the validity of equal facilities in racially separate schools
was settled by earlier decisions and cited the Plessy case,
McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151
(1914), both of which involved segregation in public car
riers, and the Gong Lum case. But the constitutional
validity of segregation was not decided.
The next consideration of a related problem was in
1948 in Sipuel v. Board of Regents of the University of
Oklahoma, 332 U. S. 631. This Court, in a per curiam
decision, said that the State must provide law school fa
cilities for the Negro petitioner “ in conformity with the
equal protection clause of the Fourteenth Amendment and
provide it as soon as it does for applicants of any other
group” (633). The facts in the Sipuel case were similar
to those in the Gaines case, in that no law school facilities
were afforded Negroes by the State of Oklahoma.
Segregation was not at issue in the Sipuel case. This
Court stated in Fisher v. Hurst, 333 U. S. 147 (1948), that:
The petition for certiorari in Sipuel v. University
of Oklahoma did not present the issue whether a state
might not satisfy the equal protection clause of the
Fourteenth Amendment by establishing a separate
law school for Negroes. On submission, we were
clear it was not an issue here. (150)
The most recent cases involving segregation in public
institutions of learning were Sweatt v. Painter, 339 U. S.
629 (1950) and McLaurin v. Oklahoma State Board of
Regents, 339 U. S. 637 (1950). Although the petitioners
and numerous amici in those cases urged this Court to rule
expressly that discrimination inevitably results from en
forced segregation in educational institutions, the Court did
not reach that question. In Sweatt, Mr. Chief Justice Yin-
son, speaking for a unanimous Court, said, “ Nor need we
11
reach petitioner’s contention that Plessy v. Ferguson
should be reexamined in the light of contemporary knowl
edge respecting the purposes of the Fourteenth Amend
ment and the effects of racial segregation” (636). The
judgment of the court below was reversed and the Uni
versity of Texas Law School was ordered to admit the
petitioner because equivalent educational opportunity was
not afforded by the hastily organized Negro law school.
In McLaurin, again speaking for a unanimous bench,
Mr. Chief Justice Vinson expressly limited the decision:
In this case, we are faced with the question whether
a state may, after admitting a student to graduate
instruction in its state university, afford him different
treatment from other students solely because of his
race. We decide only this issue . . . (638)
Thus in no case previously before this Court, in which
racial segregation in public education has been the subject
of comment in an opinion, has the Court felt called upon
to rule squarely on the issue: Does segregation in public
educational institutions meet the requirements of the equal
protection of the laws clause of the Fourteenth Amend
ment ?
We emphasize that absence of a specific ruling at the
outset of this brief because of the thread of urgency
running through the fabric of much previous argument
on the crucial issue in this case, namely, that the “ sepa
rate but equal” doctrine, as it has been thought to apply
to public educational institutions, should he “ overruled” .
Indeed, in that framework, there is nothing to overrule.
But there are dicta which must be disavowed. The con
stitutionality of segregation in educational institutions
was clearly not involved in Plessy or Gong Lum, the two
cases relied upon by the court below.
12
P O I N T II
Racial segregation in public educational institu
tions is an unconstitutional classification under the
equal protection of the laws clause of the Fourteenth
Amendment.
This Court’s decisions in cases involving the constitu
tionality of governmental action reveal a special scrutiny
and constant vigilance in those instances where such ac
tion was predicated upon alleged racial distinctions or
where racial classifications were involved. Except in
times of overriding peril or crisis, this Court has rejected
all obvious or devious efforts to establish racial or reli
gious lines of demarcation for the enjoyment of civil
rights.
Whereas in cases involving other types of legislative
classifications, the “ one who assails the classification . . .
must carry the burden of showing that it does not rest
upon any reasonable basis” , Lindsley v. Natural Carbonic
Gas Co., 220 U. S. 61, 79 (1911), “ all legal restrictions
which curtail the civil rights of a single racial group are
immediately suspect” . Korematsu v. U. S., 323 U. S. 214,
216 (1944).
Again, “ only the most exceptional circumstances can
excuse discrimination on that basis in the face of the
equal protection clause.” Oyama v. California, 332 U. S.
633, 646 (1948). In Hirabayashi v. U. 8., 320 U. S. 81
(1943), this Court 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 doc
13
trine of equality. For that reason, legislative classi-
cation or discrimination based on race alone has
often been held to be a denial of equal protection.
( 100)
In the application of these principles, the Court has,
with one exception (discussed infra), always declared gov
ernmental classification based on race or color to be con
stitutionally invalid.
This Court has ruled that Negroes must be treated the
same as whites with respect to the privilege and duty of
jury service. Strauder v. West Virginia, 100 U. S. 303
(1880). It has stricken down state statutes aimed at keep
ing the Negro “ in his place.” Bailey v. Alabama, 219
U. S. 219 (1911); U. 8. v. Reynolds, 235 U. S. 133 (1914).
Common carriers engaged in interstate travel have been
prevented from segregating and discriminating on the
basis of race or color. Mitchell v. U. S., 313 U. S. 80
(1941); Morgan v. Virginia, 328 U. S. 373 (1946); Hen
derson v. U. S., 339 U. S. 816 (1950). Repeated instances
of prejudice in criminal cases evidenced by brutal treat
ment of Negroes have been condemned. Brown v. Mis
sissippi, 297 U. S. 278 (1936); Chambers v. Florida,
309 U. S. 227 (1940); Shepherd v. Florida, 341 U. S. 50
(1951). Racial segregation through zoning and attempts
to institutionalize ghettos by restrictive covenants have
been outlawed. Buchanan v. Warley, 245 U. S. 60 (1917) ;
Shelley v. Kraemer, 334 U. S. 1 (1948). Discrimination
has been forbidden in labor unions that receive their col
lective bargaining and representation powers by virtue
of statute. Steele v. Louisville d Nashville Railroad Co.,
323 U. S. 192 (1944); Tunstall v. Brotherhood of Locomo
tive Firemen, 323 U. S. 210 (1944); Brotherhood of R. R.
Trainmen v. Howard, — U. S. — , 72 S. Ct. 1022 (1952).
14
From time to time, this Court has stricken down all the
various devices used to prevent or limit Negroes from
participating in elections. Guinn v. U. S., 238 U. S. 347
(1915); Nixon v. Herndon, 273 U. S. 536 (1927); Smith v.
Allwright, 321 U. S. 649 (1944). So, too, laws which in
their administration have effected a limitation or denial
of the right to carry on a business or calling because of
race or ancestry, have been declared unconstitutional.
Yick Wo v. Hopkins, 118 U. S. 356 (1886); Yu Cong Eng
v. Trinidad, 271 U. S. 500 (1926) ; Takahashi v. Fish and
Game Commission, 334 U. S. 410 (1948).
In Buchanan v. Warley, 245 U. S. 60, which involved a
racial residential zoning ordinance, the State invoked its
authority to pass laws in the exercise of its police power,
and urged that this compulsory separation of the races
in habitation be sustained because it would “ promote the
public peace by preventing race conflicts” (81). This
Court rejected that contention, saying:
The authority of the state to pass laws in the exercise
of the police power . . . is very broad . . . [and] the
exercise of this power is not to be interfered with by
the courts where it is within the scope of legislative
authority and the means adopted reasonably tend to
accomplish a lawful purpose. But it is equally well
established that the police power . . . cannot justify
the passage of a law or ordinance which runs counter
to the limitations of the Federal Constitution . . . (74).
The police power of the State, broad as it is, does not
justify a racial classification where rights created or pro
tected by the Constitution are involved.
In Shelley v. Kraemer, 334 U. S. 1, this Court, by
unanimous decision, held that the enforcement of racial
restrictive covenants by State courts is State action,
15
prohibited by the equal protection clause of the Four
teenth Amendment. In the course of its decision, the
Court measurably strengthened the equal protection clause
as a formidable barrier to restrictions having the effect
of racial segregation. The contention was there pressed
that since the State courts stand ready to enforce racial
covenants excluding white persons from occupancy or
ownership, enforcement of covenants excluding Negroes
is not a denial of equal protection. This Court rejected
the equality of application argument, decisively dismissing
it in the following language:
This contention does not bear scruitiny. . . . The
rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the
individual. The rights established are personal rights.
It is, therefore, no answer to these petitioners to say
that the courts may also be induced to deny white
persons rights of ownership and occupancy on grounds
of race or color. Equal protection of the laws is not
achieved through indiscriminate imposition of in
equalities. (21, 22)
There has been but one recent departure from this rule.
This Court stated that “ in the crisis of war and of
threatened invasion” when the national safety might
appear to be imperilled, it will permit a racial classifica
tion by the Federal Government. Hirabayashi v. U. 8.,
320 U. S. 81, 101. That case involved a prosecution for
failure to obey a curfew order directed against citizens
of Japanese ancestry. Korematsu v. U. S., 323 U. S. 214,
arising out of the same war emergency, involved the
validity of a governmental order excluding all persons of
Japanese ancestry from the West Coast military area.
The Court, on the grounds of overriding pressing public
urgency in time of war, sustained the racial classification
16
in these cases, but it emphasized that this was an ex
traordinary exception. “ [Legislative classification or dis
crimination based on race alone has often been held to
be a denial of equal protection. . . . We may assume” ,
continued the Court, “ that these considerations would be
controlling here were it not for the fact that the danger
of espionage and sabotage, in time of war and of threat
ened invasion” has made necessary this racial classi
fication, which “ is not to be condemned merely because
in other and in most circumstances racial distinctions are
irrelevant.” Hirabayashi v. U. S., supra, 101.
Clearly, State laws providing for racial segregation in
public educational facilities are not accompanied by any
“ pressing public necessity” . The record here is barren
of any such showing, as indeed it would have to be. Rather,
there is a pressing public necessity to give all American
citizens their due—equality of opportunity to use educa
tional facilities established by the State for its inhabitants.
P O I N T I I I
The finding of the court below, that Negro chil
dren are disadvantaged by the segregated public
school system of Topeka, requires this Court to dis
avow the “separate but equal” doctrine as it has
been applied to public educational institutions.
In one vital respect, the problem posed by this record
is sharpened to the point of unique narrowness. The un
challenged finding that segregation irreparably damages
the child lifts this case out of the murky realm of specu
lation on the issue of “ equality” of facilities, into the
17
area of certainty that segregation and equality cannot
co-exist. That which is unequal in fact cannot be equal in
law.
It is respectfully submitted that the finding of the court
below, that Negro children were disadvantaged by the
segregation of white and colored students in the public
elementary schools, requires this Court to reverse the
lower court’s refusal to grant the requested relief. The
lower court found as a fact that the segregation of white
and Negro children in the public schools “ has a detri
mental effect upon the colored children” ; that such segre
gation creates in Negro children a “ sense of inferiority”
which “ affects the motivation of a child to learn” ; that
legally sanctioned segregation “ therefore has a tendency
to retard the educational and mental development of
[Njegro children and to deprive them of some of the
benefits they would receive in a racially integrated school
system. ’ ’
Educators and social scientists have long proclaimed
that these and other social evils necessarily flow from
racially segregated education. Segregation in Public
Schools—A Violation of “ Equal Protection of the Laics’ ’,
56 Yale L. J. 1059, 1061 (1947). See also Long, Some
Psychogenic Hazards of Segregated Education of Negroes,
4 J. of Negro Ed. 336, 343 (1935); Long, The Intelligence
of Colored Elementary Pupils in Washington, I). C., 3 J.
of Negro Ed. 205-222 (1934); Gallagher, American Caste
and the Negro College, 109, 184, 321-2 (1938); Bond, Edu
cation of the Negro in the American Social Order, 385
(1934); President’s Commission on Higher Education,
2 Higher Education for American Democracy 35 (1947);
Heinrich, The Psychology of a Suppressed People, 52, 57-
1 8
61 (1937); Myrdal, An American Dilemma, 54-5, 97-101,
577-8, 758; Frenkel-Brunswik, A Study of Prejudice in
Children, 1 Human Relations 295, 305 (1948); Goodman,
Race Awareness in Young Children (1952); Adorno,
Frenkel-Brunswik, Levinson and Sanford, The Authori
tarian Personality, Ch. IV, V (1950).
Whenever this Court has been presented with a record
that established inequality in fact as between educational
opportunities offered by the State to its white and Negro
inhabitants, it has ordered the immediate termination of
the inequality. Missouri ex rel. Gaines v. Canada, 305 U. S.
337; Sipuel v. Board of Regents, 332 U. S. 631; Fisher v.
Hurst, 333 U. S. 147; Sweatt v. Painter, 339 IT. S. 629.
In McLaurin v. Oklahoma, 339 IT. S. 637, this Court went
even further to hold that officially imposed racial segre
gation within a State-maintained school violated the equal
protection clause. It is noteworthy that the court below
said in its opinion, where “ segregation within a school
as in the McLaurin case is a denial of due process, it is
difficult to see why segregation in separate schools would
not result in the same denial.” Brown v. Board of Edu
cation of Topeka, 98 F. Supp. 797, 800 (Emphasis added).
We respectfully urge this Court to follow the prin
ciples it recently enunciated in Sweatt and McLaurin,
rather than the unsound ones of Plessy and Gong Lum,
and to hold unequivocally that racial segregation per se
in all State educational institutions, is a violation of the
equal protection of the laws clause of the Fourteenth
Amendment.
The Need to D isavow P l e s s y
As we explained in Point I, we believe that Plessy is
not controlling. Assuming, arguendo, that the court below
was justified by Plessy in refusing to hold that segregation
19
in public elementary schools is per se discrimination under
the Fourteenth Amendment, this Court should now ex
pressly overrule Plessy and reverse the court below. This
Court has not hesitated in the past to overrule or recon
sider and reverse earlier decisions where the nature and
consequences of discrimination became fully disclosed or
apparent upon later consideration. Murdoch v. Pennsyl
vania, 319 U. S. 105 (1943), reversing Jones v. Opelika,
316 U. S. 584 (1942); West Virginia State Board of Edu
cation v. Barnette, 319 U. S. 624 (1943), overruling Miners-
ville School District v. Gobitis, 310 U. S. 586 (1940); Smith
v. Allivright, 321 U. S. 649, overruling Grovey v. Townsend,
295 U. S. 45 (1935). “ In constitutional questions, where
correction depends upon amendment and not upon legis
lative action this Court through its history has freely
exercised its power to reexamine the basis of its constitu
tional decisions.” Smith v. Allivright, supra, 655 and cases
cited in footnote 10 thereto.
Lower courts, State and federal, have indicated clearly
that they believe a break with the “ separate but equal”
doctrine in education is “ in the wind” , but they insist
that they must await such a holding by this Court. Belton
v. Gebhart, decided by the Delaware Court of Chancery,
April 1, 1952, affirmed by the Supreme Court of that State
on August 28, 1952; Banks v. San Francisco Housing
Authority, decided October 1, 1952, by the Superior Court
of San Francisco; Brown v. Board of Education of To
peka, 98 F. Supp. 797, 798; Briggs v. Elliott, 98 F. Supp.
529, 535 (1951).
It is not surprising that American courts are ques
tioning the validity of Plessy in view of the tremendous
changes which have taken place since the turn of the cen
tury in the understanding of the nature of the individual
20
and his relationships to racial groupings and to society.
Scientific research in the fields of anthropology, sociology,
biology and education has demonstrated the fallaciousness
of the racial and blood strain concepts which are basic
to the majority opinion in Plessy.
P eacefu l Integration W ill F ollow
The defenders of racial segregation have frequently
expressed the fear that compulsory destruction of the bar
riers in the public schools would increase racial tensions
and even cause strife. Such results, obviously, should be
avoided if possible, without yielding constitutional prin
ciples. Experience, however, has clearly’ demonstrated
that these dire predictions are unfounded.
Following this Court’s decision in McLaurin v. Okla
homa, 339 U. S. 637, Negro students applied for admission
and were admitted in large numbers to that State’s col
leges and universities. By June 1951, approximately 400
Negroes were enrolled at the University of Oklahoma and
at Oklahoma A & M, all without the slightest increase in
racial tension, but rather with every sign of increased
mutual understanding and respect. The Oklahoma City
Daily Oklahoman, June 7, 1951.
In Texas, after the decision in Sweatt v. Painter, 339
U. S. 629, two Negroes were admitted to the University
of Texas Law School and two others were admitted to the
Dental School. 52 American Jewish Yearbook 42 (1951);
The Houston Chronicle, Sept. 10, 1952. Negroes have also
been admitted to private institutions of higher learning
in Texas following Sweatt. Southern Methodist Univer
sity (The Houston Post, January 9, 1951), Amarillo Col
lege (Dallas Times Herald, October 2, 1951) and several
other junior colleges (The Houston Informer, December
5, 1951) have all found that the admission of Negroes was
21
possible without any adverse effect upon interracial rela
tions. Quite the contrary. The Austin Statesman of No
vember 14, 1950, reported the white students at Southern
Methodist University advised the president that “ SMU
student opinion favors admitting Negroes to the school.”
The University of Arkansas has accepted Negroes for
LL.B. and M.D. degrees. Little Rock Arkansas Gazette,
July 1, 1951; New York Post, August 24, 1948. Notwith
standing the fact that the University of Florida has thus
far refused to admit Negroes, the Florida Student Gov
ernment Association, an organization of student leaders
representing all colleges and universities in the State,
unanimously passed a resolution calling for an immediate
end to racial segregation in the State’s institutions of
higher learning. Miami Herald, May 6, 1951. The Uni
versity of Kentucky since 1949 has enrolled Negro stu
dents. New York Herald Tribune, June 23, 1949. By
July 1950, twelve Negroes were attending classes at the
University and “ [t]hey took their places quietly in the
student body without any open hostility.” Dawkins, Ken
tucky Outgrows Segregation, The Survey, July 1950. Pri
vate educational institutions have followed the lead of the
University of Kentucky. Berea College led the way. Three
Roman Catholic colleges in Louisville, Nazareth, Ursuline
and Bellarmine Colleges, immediately followed suit. Next
to fall in line was the University of Louisville with a stu
dent body of seven thousand. Southern Baptist Theologi
cal Seminary and Louisville Theological Seminary now
also admit Negroes on an unsegregated basis.
In July 1950, the first Negroes were admitted to the
University of Missouri and less than two years later a
Negro was appointed to the faculty. St. Louis Post-
22
Dispatch, July 7, 1950; St. Louis Globe-Democrat, April
17, 1952. St. Louis University has admitted Negroes to
all its facilities for the past few years. They have been
fully integrated into the University program with no
unhappy results. During the academic year 1950-51, a
total of 351 Negro students was enrolled and there were
five Negro faculty members. The experience of institu
tions like St. Louis University has demonstrated that the
admission of Negro students poses no problem of accept
ance by white students. Morisey, A New Trend in Private
Colleges, New South, Aug.-Sept. 1951. Another private
university in St. Louis, Washington University, admits
Negroes to all its branches and schools. St. Louis Post-
Dispatch, May 11, 1952. Its experience has been identical
with that of St. Louis University.
In July 1951, the University of North Carolina ad
mitted its first Negro student. Washington Times-Herald,
July 17, 1951. The following September, six additional
Negro students attending the University, were excluded
from the regular student cheering section at a football
game. When the entire student body protested this action
by the University authorities, it was quickly reversed.
New York Herald Tribune, September 28, 1951.
Since 1951, the University of Virginia has been ad
mitting Negro students and “ the formerly ‘ all-white’
schools which have accepted Negro students have found
that their presence creates no special problem” . Rich
mond News Leader, September 25, 1952.
The College of William and Mary, which next to Har
vard University is the oldest of the country’s colleges,
has admitted two Negro students, both of whom are
attending regular day classes. According to President
2 3
Chandler, “ [t]he presence of these two Negro graduate
students has not created any special problems on the
campus.” Ibid.
By July 1951, there were approximately one thousand
Negro students in previously “ all-white” institutions of
higher education in the South. “ They have encountered
virtually no open objection to their presence.” Saveth,
The Supreme Court and Segregation, The Survey, July
1951.
Just as the admission of Negroes to formerly “ all-
white” colleges and universities has created no friction
or other difficulties, so too experience has proved that in
tegration of white and Negro children at the elementary
and high school levels can be acieved without incident.
In the State of New Mexico where segregation is al
lowed, though not required, in the public schools, the town
of Carlsbad maintained separate schools for the two races
until 1951. Following the refusal of the State School
Board to accredit the inferior Negro high school, the local
school authorities voted to admit Negroes to the “ white”
school. “ Carlsbad white students approved the move. The
1951 graduating class and the high school senior council
voted unanimously to welcome the Negro students. The
junior and senior class and faculty members were 95 per
cent in favor of it.” Santa Fe New Mexican, September 2,
1951. The integration has not caused a single untoward
incident to date. Furthermore, racial segregation was
abolished in Alamagordo’s public schools in August of
this year and the first Negro teacher was hired to teach
in that New Mexico city’s integrated public schools. There
has been no disharmony as a result of either action.
26
consisting of all colored children, have been employed
to teach classes of mixed races. While many indi
vidual examples could be cited, one in particular bears
mentioning. The one in question contained the only
junior high school operated on a segregated basis.
This junior high school was a fairly large institution
and naturally existed in a good sized city. Today, the
student body of this school is approximately one-third
Negro and two-thirds white. The teachers who for
merly were teaching all-Negro junior high school
classes have been completely integrated into the new
setup and include teachers of all regular and special
subjects. The morale of both the student body and
faculty is excellent. B ien n ia l R e p o r t f o r th e Y ea rs
J u ly 1, 1949, to J u n e 30, 1951, State of New Jersey,
Department of Education, Division Against Discrimi
nation 12, 13.
On the basis of the accumulated experience, instances
of which we have described above, we are convinced that
integration can and will be accomplished in the public
schools of the South without “ bloodshed and violence’ ’
if the law enforcement agencies, federal or local, demon
strate that they will not tolerate breaches of the peace or
incitement. Americans are law abiding people and abhor
klanism and violence.
Segregation Is A n E conom ic W aste
There is another cogent reason that this Court should
speak out clearly and definitively now. Since the ‘ ‘ separate
but equal’ ’ doctrine in public education will have to be
abandoned ultimately, it should be abandoned sooner
rather than later, to forestall the wasteful expenditure by
many States of huge sums of money to build segregated
schools when that money could be used more economically
and enduringly to build and improve public schools where
they will provide the greatest good for the greatest num
ber. This we believe is a necessary consequence of the
constitutional requirement that the State must grant each
person equal protection of its laws.
27
The President’s Committee on Civil Rights, in its his
toric report, To Secure These Rights (1947), states:
The South is one of the poorer sections of the country
and has at best only limited funds to spend on its
schools. With 34.5 percent of the country’s popula
tion, 17 southern states and the District of Columbia
have 39.4 percent of our school children. Yet the
South has only one-fifth of the taxpaying wealth of
the nation. Actually, on a percentage basis, the South
spends a greater share of its income on education than
do the wealthier states in other parts of the country.
(63)
The South has been struggling under a heavy financial
burden to support its educational system, with the Negro
schools admittedly inferior to the white. The southern
States would have to expend over one and one-half billion
dollars to bring the Negro schools to the level of the
“ white” schools and, in addition, approximately eighty-one
million dollars annually just to maintain parity. Charles
H. Thompson, Dean, Graduate School of Howard Univer
sity, Letter to the Editor, The New York Times, April 6,
1952. This additional burden is beyond the capacity of
the South to bear. Bond, in Education of the Negro in the
American Social Order (1934) sums this up:
If the South had an entirely homogeneous population,
it would not be able to maintain schools of high
quality for the children unless its states and local
communities resorted to heavy, almost crushing rates
of taxation. The situation is further complicated
by the fact that a dual system is maintained. Con
sidering the expenditures made for Negro schools, it
is clear that the plaint frequently made that this dual
system is a burden is hardly true; hut it is also clear
that if an honest attempt were made to maintain
“ equal, though separate schools” , the burden would
be impossible even beyond the limitation of existing
poverty. (231)
2 8
Public schools should be planned and erected as part
of the development of the total community. They should
be built in those areas that have expanding populations
and needs for such facilities, rather than in opportunistic
response to random law suits or threats of law suits, as is
now the case in many southern States.
Conclusion
The United States is now engaged in an ideological
world conflict in which the practices of our democracy are
the subject of close scrutiny abroad. We cannot afford,
nor will the Avorld permit us, to rest upon democratic
pretensions unrelated to reality.
The people of other lands listen not only to our Voice
of America which quite properly extols the virtues of
democracy; they listen to broadcasts from Communist
sources as well. We know that our enemies seize eagerly
upon the weaknesses of our democracy and, for propa
ganda purposes, magnify, exaggerate and distort hap
penings in the United States. Not so well known, although
possibly more significant, is that the liberal and conserva
tive press abroad is constantly comparing our declara
tions and statements about democracy with our actual
practices at home. Domestic incidents are noted and com
mented upon. Our discriminatory practices in education,
in employment, in housing, have all been the subject of
much adverse press comment in those foreign countries
which we are trying to keep in the democratic camp.
While McGee v. Mississippi, 40 So. 2nd 160 (1949), was
the subject of some considerable comment in Communist
circles here and elsewhere, the Paris office of the American
29
Jewish Committee assembled characteristic press comment
from liberal, conservative and Catholic European news
papers :
Semailles, a liberal Marseilles newspaper, said on May
18, 1951:
In associating ourselves with the United States in the
defense of liberty, we have included in the notion of
liberty, a respect for all human beings, the notion of
the common fraternity of all men. And it appears
that in this association, we, too, have much to bring.
What the world awaits from us is not cannons and
atomic bombs, but the permanent and vigilant affirma
tion of the inalienable right of all men to be judged
according to their acts and not according to the color
of their skin or the latitude in which they were born.
Otherwise, where is the difference between our enemies
and ourselves?
An editorial, entitled “ An American Tragedy” , in the
Vienna Arbeiter-Zeitung, one of the staunchest anti-Com-
inunist publications in Europe, said on February 4, 1951:
The Communist reply to accusations made about the
injustices and cruelties of their dictatorship, of forced
labor, of the arbitrariness of their courts and their
violation of human dignity, by pointing to the in
sincerity of American democracy which permits racial
persecution and deprives millions of human beings of
their equal rights on the basis of the color of their
skin.
One cannot appear before the world as a fighter for
freedom and right when one is unable to eliminate
injustice in one’s own house.
L ’Aube, Paris organ of the Popular Republican Move
ment (MRP), the second largest political party in France,
led by Georges Bidault and Foreign Minister Robert Schu-
man. in its May 9, 1951, issue said:
3 0
How much does a Negro weigh in a world where
people of all colors are struggling with the hitter
forces of nature and societies! Why is there so much
noise about a trial which after all is an internal affair,
not only of the United States of America, but of one
of its states! He weighs exactly that of all those
whose lot it is to protest an injustice. And the in
justice in this instance has as its name, racism. Our
reaction to injustice does not depend on the region of
the world where the wrong was committed. It is the
more bitter to know that it took place in a continent
which gave for liberty enough of its sons not to
deliver up to hatred of a poor Negro; that is what
weighs heavily.
On April 7, 1950, the Cologne Welt Der Arbeit, official
publication of the anti-Communist German trade unions,
carried an article entitled, “ The Negro Question in the
U. S .” That article contained the following significant
language:
In recent Aveeks, one found in the German press the
folloAving item s: In Frankfurt-am-Main the proprietor
of a cafe Avas fined 600 DM by American Occupation
Authorities because he had ejected tA\To colored Ameri
can soldiers from his establishment. In Washington,
the Capital of the U. S. A., Doctor Bundle, Avho made
a name for himself as the UN intermediary in Pales
tine, Avas refused admittance to a movie house because
he Avas colored. He then Avent to another movie house
where he spoke French and Avas admitted because it
Avas believed he Avas a foreigner. In the one case, the
American authorities want foreigners to treat every
colored soldier AArith dignity as an American citizen
and punish any transgression of this principle. On
the other hand, world-famous leaders of the colored
population are deprived of their full equality. H oav
are these tAvo attitudes to be reconciled! It is only
too natural that the average European can make no
sense of such contradictions. The racial attitudes in
the U. S. have no parallel in the entire world.
31
And finally, we have the following quotation from the
liberal Le Matin of Antwerp, Belgium, in May 1951:
The crime of racism is odious. And, without doubt,
the world will never know true peace while there exist
nations, peoples or races that believe themselves su
perior to other nations, peoples or races. It is a pain
ful declaration to make at the moment when our
American friends are presenting themselves in the
United Nations as the sturdy defenders of the free
world.
Legally imposed segregation in our country, in any
shape, manner or form, weakens our program to build
and strengthen world democracy and combat totalitarian
ism. In education, at the lower levels, it indelibly fixes
anti-social attitudes and behavior patterns by building
inter-group antagonisms. It forces a sense of limitation
upon the child and destroys incentive. It produces feel
ings of inferiority and discourages racial self-appreciation.
3 2
For all of the reasons urged herein, State-imposed racial
segregation in public schools, denies to the appellants
herein, and to all similarly situated Negro children, equal
protection of the laws in every meaningful sense of those
words.
The judgment of the court below should be reversed.
Kespectfully submitted,
Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays,
Frank E. Karelsen,
of the New York Bar,
Leonard Haas,
of the Georgia Bar,
Saburo Kido,
of the California Bar,
W aldo B. W etmore,
of the Kansas Bar,
Attorneys for Amici Curiae.
T heodore Leskes,
Sol Rabkin,
of the New York Bar,
of Counsel.
November 15, 1952
3 3
APPENDIX
American Civil Liberties Union
The American Civil Liberties Union is a private or
ganization composed of individual citizens. It is devoted
to supporting the Bill of Rights—for everybody. Founded
in 1920, it has, day in and day out, actively championed
the three-fold cause of civil liberties, the heart and core
of democratic government, as set forth in the Constitution
and the Declaration of Independence: (1) Government
by the people, grounded on freedom of inquiry and ex
pression— speech, press, assembly and religion—for every
body; (2) specific rights guaranteed to the people, such
as due process and fair trial—for everybody; and (3)
equality of the people before the law—for everybody,
regardless of race, color, place of birth, position, income,
political opinions, or religious belief.
The Union has no cause to serve other than civil liber
ties. It is dedicated simply and solely to furthering the
actual practice of democracy. It defends the civil liberties
of everybody, including those whose anti-democratic opin
ions it abhors and opposes, like Communists, Nazis, Fas
cists and Ku Klux Klanners.
3 4
The American Ethical Union is a national association
of Societies for Ethical Culture. Its purpose is to bring
into close fellowship of thought and action existing Ethical
Societies and to promote the establishment of new socie
ties. It is thus devoted, on a national scale, as is each
society in its local setting, to the promotion of the knowl
edge, the love and the practice of the right in all the rela
tionships of life. It asserts the supreme importance of the
ethical factor in all the relations of life and affirms the
belief that the greatest spiritual values are to be found in
man’s relationship to man. Through its religious and edu
cational programs it seeks to make the individual more
adequate in his personal relationships and better able to
contribute to the life of his community. The Ethical So
ciety has as one of its objectives the inspiring words of
St. Paul: “ He has made of one blood all nations of men to
dwell on the earth.”
American Ethical Union
35
The American Jewish Committee is a corporation cre
ated by an Act of the Legislature of the State of New
York in 1906. Its charter states:
The object of this corporation shall be to prevent the
infraction of the civil and religious rights of Jews, in
any part of the world; to render all lawful assistance
and to take appropriate remedial action in the event
of threatened or actual invasion or restriction of such
rights, or of unfavorable discrimination with respect
thereto . . .
During the forty-six years of its existence it has been
one of the fundamental tenets of the organization that the
welfare and security of Jews in America depend upon the
preservation of constitutional guarantees. An invasion of
the civil rights of any group is a threat to the safety of all
groups.
For this reason the American Jewish Committee has
on many occasions fought in defense of civil liberties
even though Jewish interests did not appear to be spe
cifically involved.
American Jewish Committee
3 6
Anti-Defamation League
of
B’nai B’rith
B ’nai B ’rith, founded in 1843, is the oldest civic or
ganization of American Jews. It represents a member
ship of over 350,000 men and women and their families.
The Anti-Defamation League was organized in 1913, as a
section of the parent organization, in order to cope with
racial and religious prejudice in the United States. The
program developed by the League is designed to achieve
the following objectives: to eliminate and counteract
defamation and discrimination against the various racial,
religious and ethnic groups which comprise our American
people; to counteract un-American and anti-democratic ac
tivity; to advance goodwill and mutual understanding
among American groups; and to encourage and translate
into greater effectiveness the ideals of American democ
racy.
37
The Japanese American Citizens League is the national
organization of Americans of Japanese ancestry. Estab
lished in 1930, its story is an account of a group of young
Americans treasuring their birthright of American citizen
ship, defending it and seeking to be worthy of it. Although
its membership is composed primarily of Americans of
Japanese ancestry, membership is open to all Americans
who believe in its principles.
The purpose of the organization is to promote good
citizenship, protect the rights of Americans of Japanese
ancestry, and acquaint the public in general with this group
of citizens toward their full acceptance into American life.
The twin mottoes of “ For Better Americans in a Greater
America” and “ Security Through Unity” express this
purpose.
Japanese American Citizens League
38
Unitarian Fellowship for Social Justice
The Rev. Dr. John Haynes Holmes and a group of other
Unitarian clergymen established the Unitarian Fellowship
for Social Justice in 1908. They sought “ to sustain one
another in united action against social injustice and in the
realization of religious ideals in present-day society.” Dr.
Holmes served for three years as the Fellowship’s first
president.
The Fellowship concerns itself especially with freedom
of conscience, the rights of minorities, the defense of public
education, and substantial efforts to strengthen the United
Nations and to plan for peace.
The Fellowship participates in the United Unitarian
Appeal for its funds, and it is affiliated with the American
Unitarian Association through the Association’s Depart
ment of Adult Education and Social Relations. The society
has individual members, organizational affiliates, and chap
ters throughout the United States and Canada in Unitarian
and liberal community churches.
f
[ 3434- 3478— 500— 12- 52 ]
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
OLIVER BROW N, MRS. RICHARD L A W TO N ,
MRS. SADIE EM M ANUEL, et a l „
Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SH AW N EE
COUNTY, K ANSAS, e t a l .
Appellees.
BRIEF ON BEH ALF OF
A M E R IC A N CIVIL LIBERTIES UNION
A M E R IC A N ETH ICAL UNION
A M ERICAN JEW ISH COM M ITTEE
A N T I-D E F A M A T IO N LEAGU E OF B’ NAI B’RITH
JAPAN ESE A M E R IC A N CITIZENS LEAGUE
AN D
U N ITA R IA N FELLOW SH IP FOR SOCIAL JUSTICE
AS A M I C I C U R I A E
Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays,
Frank E. Karelsen,
of the New York Bar,
Leonard Haas,
of the Georgia Bar,
Saburo Kido,
of the California Bar,
W aldo B. W etmore,
o f the Kansas Bar,
T heodore Leskes,
Sol Rabkin,
of the New York Bar,
of Counsel.
Attorneys for Amici Curiae.
r-^H^D307 B A B P K E S S INC., 54 L A F A Y E T T E S T ., N E W Y O R K 1 3 ----- W A . 5 - 3432 -3 .
#
TABLE OF CONTENTS
PAGE
Interest of the A mici ......................................................... 1
Statement of the Case ...................................................... 3
T he Statute Involved 4
T he Question Presented ....................... 4
Summary of A rgument ...................................................... 5
Argument
I. The validity under the equal protection of
the laws clause of the Fourteenth Amend
ment of racial segregation in public educa
tional facilities has never been decided by
this Court ............................. 6
II. Racial segregation in public educational
institutions is an unconstitutional classifi
cation under the equal protection of the
laws clause of the Fourteenth Amendment 12 III.
III. The finding of the court below, that Negro
children are disadvantaged by the segre
gated public school system of Topeka, re
quires this Court to disavow the “ separate
but equal” doctrine as it has been applied
to public educational institutions .................... 16
Conclusion .................................................................................. 28
Appendix ...................................................................................... 33
11 Index
T able o f Cases
PAGE
Bailey v. Alabama, 219 U. S. 219 (1911) 19
Banks v. San Francisco Housing Authority, decided
by the Superior Court of San Francisco, Cal.,
Oct. 1, 1952 ............................................................... 19
Belton v. Gebliart, decided by the Supreme Court of
Delaware, Aug. 28, 1952 .......................................... 19
Berea College v. Kentucky, 211 U. S. 45 (1908)
Briggs v. Elliott, 98 F. Supp. 529 (1951) 19
Brotherhood of R. R. Trainmen v. Howard, — U. S.
—, 72 S. Ct. 1022 (1952) ....................................... 13
Brown v. Board of Education of Topeka, 98 F. Supp.
797 (1951) .................................................................18,19
Brown v. Mississippi, 297 U. S. 278 (1936) 13
Buchanan v. Warley, 245 U. S. 60 (1917) .................. 13,14
Chambers v. Florida, 309 U. S. 227 (1940) 13
Cumming v. County Board of Education, 175 U. S.
528 (1899) ................................................................. 7
Fisher v. Hurst, 333 U. S. 147 (1948) ........................10,18
Gong Lum v. Rice, 275 U. S. 78 (1927).......... 5, 9,10,11,18
Grovey v. Townsend, 295 U. S. 45 (1935).................... 19
Guinn v. U. S., 238 U. S. 347 (1915).............................. 14
Hall v. DeCuir, 95 U. S. 485 (1878) ............................ 6, 7
Henderson v. U. S., 339 U. S. 816 (1950).................... 13
Hirabayashi v. U. S., 320 U. S. 81 (1943)........... 12,15,16
Jones v. Opelika, 316 U. S. 584 (1942)........................ 19
Korematsu v. U. S., 323 U. S. 214 (1944) .................. 12,15
Index m
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61
PAGE
(1911) ........................................................................ 12
McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151
(1914) ........................................................................ 10
McGee v. Mississippi, — Miss. —, 40 So. 2nd 160
(1949) ........................................................................ 28
McLaurin v. Oklahoma State Board of Regents, 339
U. S. 637 (1950) .................................. 8,10,11,18,20
Minersville School District v. Gobitis, 310 U. S. 586
(1940) ..................................................................... 19
Missouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938) .....................................................................9,10,18
Mitchell v. U. S., 313 IT. S. 80 (1941).......................... 13
Morgan v. Virginia, 328 U. S. 373 (1946).................. 13
Murdock v. Pennsylvania, 319 U. S. 105 (1943)......... 19
Nixon v. Hefndon, 273 U. S. 536 (1927)...................... 14
Oyama v. California, 332 U. S. 633 (1948)................... 12
Plessy v. Ferguson, 163 U. S. 537 (1896)
5, 7, 8,10,11,18,19, 20
Shelley v. Kraemer, 334 U. S. 1 (1948) ......................13,14
Shepherd v. Florida, 341 U. S. 50 (1951).................... 13
Sipuel v. Board of Regents of the University of
Oklahoma, 332 U. S. 631 (1948) ............................. 10,18
Smith v. Allwright, 321 U. S. 649 (1944)......................14,19
Steele v. Louisville & Nashville Railroad Co., 323
U. S. 192 (1944) .................................................. 13
Strauder v. West Virginia, 100 U. S. 303 (1880)...... 13
Sweatt v. Painter, 339 U. S. 629 (1950) .......... 8,10,18, 20
Takahashi v. Fish .& Game Commission, 334 U. S.
410 (1948) ................................................................. 14
IV Index
PAGE
Tunstall v. Brotherhood of Locomotive Firemen, 323
U. S. 210 (1944) ....................................................... 13
U. S. v. Reynolds, 235 U. S. 133 (1914)........................ 13
West Virginia State Board of Education v. Barnette,
319 IT. S. 624 (1943) ............................................... 19
Yick Wo v. Hopkins, 118 U. S. 356 (1886) ............... 14
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926)........ 14
Other A uthorities Cited
Adorno, Frenkel-Brunswik, Levinson and Sanford,
The Authoritarian Personality (1950) ................ 18
52 American Jewish Yearbook (1951).......................... 20
Antwerp Le Matin, May 1951 ....................................... 31
The Austin Statesman, November 14, 1950................ 21
Biennial Report, 1949-1951, State of New Jersey,
Dep’t. of Education, Division Against Dis
crimination ...............................................................25, 26
Bond, Education of the Negro in the American Social
Order (1934) ............................................................. 17,27
Chicago Sun-Times, September 26, 1950 ...................... 24
Cologne Welt Der Arbeit, April 7, 1950 ...................... 30
Dallas Times Herald, October 2, 1951 .......................... 20
Dawkins, Kentucky Outgrows Segregation, The Sur
vey, July 1950 ........................................................... 21
Dayton Journal Herald, June 23, 1950 ........................ 25
Frenkel-Brunswik, A Study of Prejudice in Children,
1 Human Relations 295 (1948).............................. 18
Index v
Gallagher, American Caste and the Negro College
(1938) .................................................................... . 17
Goodman, Race Awareness in Young Children (1952) 18
Heinrich, The Psychology of a Suppressed People
(1937) ..................................................................... 17
The Houston Chronicle, Sept. 10, 1952 20
The Houston Informer, December 5, 1951 20
The Houston Post, January 9, 1951 ............. 20
Little Rock Arkansas Gazette, July 1, 1951............... 21
Long, The Intelligence of Colored Elementary Pupils
in Washington, D. C., 3 J. of Negro Ed. 205
(1934) .................................................. 17
Long, Some Psychogenic Hazards of Segregated
Education of Negroes, 4 J. of Negro Ed. 336
(1935) ..................................................1.................... 17
Marseilles Semailles, May 18, 1951 .............................. 29
Miami Herald, May 6, 1951 ........................................... 21
46 Michigan L. Rev. (1948) ........................................... 7
Morisey, A New Trend in Private Colleges, New
South, Aug.-Sept. 1951 ........................................... 22
Myrdal, An American Dilemma (1944) ...................... 6,18
New York Herald Tribune, June 23, 1949.................... 21
New York Herald Tribune, Sept. 28, 1951.................. 22
New York Post, Aug. 24, 1948 ..................................... 21
The New York Times, January 30, 1950 24
The Oklahoma City Daily Oklahoman, June 7, 1951 20
Paris IVAube, May 9, 1951 ........................................... 29,30
Pittsburgh Courier, December 1, 1951 24
PAGE
VI Index
President’s Commission on Higher Education, Higher
Education for American Democracy (1947)....... 17
President’s Committee on Civil Eights, To Secure
These Eights (1947) ............................................... 27
Eichmond News Leader, September 25, 1952.............. 22, 23
Santa Fe New Mexican, September 2, 1951................ 23
Saveth, The Supreme Court and Segregation, The
Survey, July 1951 ................................................... 23
Segregation in Public Schools—A Violation of
“ Equal Protection of the Laws’ ’, 56 Yale L. J.
1059 (1947) ............................................................... 17
St. Louis Globe-Democrat, April 17, 1952.................... 22
St. Louis Post-Dispatch, July 7, 1950; May 11, 1952.. 22
Thompson, C. H., Letter to the Editor, The New
York Times, April 6, 1952 ..................................... 27
Vienna Arbeiter-Zeitung, February 4, 1951.................. 29
Washington Times-Herald, July 17, 1951....................... 22
PAGE
IN THE
Supreme Court of the United States
October Term, 1952
No. 8
OLIVER BROWN, MRS. RICHARD LAWTON,
MRS. SADIE EMMANUEL, et a l „
Appellants,
vs.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, et a l .,
Appellees.
BRIEF ON BEH ALF OF
A M E R IC A N CIVIL LIBERTIES UNION
A M E R IC A N ETH ICAL UNION
A M E R IC A N JEW ISH COM M ITTEE
A N T I-D E F A M A T IO N LEAGU E OF B’ NAI B’RITH
JAPAN ESE A M E R IC A N CITIZEN S LEAGU E
AN D
U N ITA R IA N FELLOW SH IP FOR SOCIAL JUSTICE
AS A M I C I C U R I A E
Interest of the Amici
This brief is filed, with the consent of both parties, on
behalf of the American Civil Liberties Union, the American
Ethical Union, American Jewish Committee, the Anti-
2
Defamation League of B ’nai B ’rith, the Japanese Ameri
can Citizens League and the Unitarian Fellowship for
Social Justice. The Appendix contains a description of
each of these organizations.
The present case and the companion cases, all involv
ing the constitutionality of racial segregation in public
elementary and secondary schools, present an issue with
which all six organizations are deeply concerned because
such segregation deprives millions of persons of rights
that are freely enjoyed by others and adversely affects
the entire democratic structure of our society.
We have read the briefs of the appellants, with the
appendix thereto, and we unequivocally endorse the argu
ments, legal, educational and sociological, therein advanced.
In this amici brief we are urging arguments which have
not been made in the appellants’ briefs and which we
believe should be presented to this Court.
3
Statement of the Case
The adult appellants are Negro citizens of the United
States and of the State of Kansas (R. 3-4) while the
infant appellants are their children eligible to attend and
now attending elementary schools in Topeka, Kansas, a
city of the first class within the meaning of Section 13-101,
General Statutes of Kansas, 1949. Appellees are State
officers empowered by State law to maintain and operate
the public schools of Topeka, Kansas.
On March 22, 1951, appellants instituted this action
seeking a declaratory judgment and an injunction to com
pel the State to admit Negro children to the elementary
public schools of Topeka on an unsegregated basis on the
ground that segregation deprived them of equal educa
tional opportunities within the meaning of the Fourteenth
Amendment (R. 2-7). In their answer, appellees admitted
that they acted pursuant to the statute, that infant ap
pellants were not eligible to attend any of the eighteen
“ white” elementary schools solely because of their race
and color (R. 12, 24), but that they were eligible to
attend the equivalent public schools maintained for Negro
children in the City of Topeka (R. 11, 12). The Attorney
General of the State of Kansas filed a separate answer
defending the validity of the statute in question (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 took place (R. 63 et seq.). On August 3,
1951, the court below filed its opinion, 98 F. Supp. 797 (R.
238-244), its findings of fact (R. 244-246), and conclusions
of law (R. 246-247), and entered a final judgment and de
cree in appellees’ favor denying the relief sought (R. 247).
Appellants filed a petition for appeal on October 1,
1951 (R. 248), and an order allowing the appeal was duly
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).
4
The Statute Involved
Segregated elementary schools in Topeka, Kansas, are
maintained solely pursuant to the authority of Section
72-1724 of the General Statutes of Kansas (1949) which
reads as follows:
Powers of board; sepax-ate schools for white and
colored children; manual training. The board of edu
cation shall have power to elect their own officers,
make all necessai'y 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 sep
arate 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 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 connec-
tion with manual training and instruction or other
wise, and to maintain the same as a part of the public-
school svstem 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.)
The Question Presented
The question presented by this appeal is whether the
State of Kansas, or indeed any State, by establishing
racial segregation in its public elementary school system,
has violated the equal protection of the laws clause of the
Fourteenth Amendment to the United States Constitution.
5
SU M M A R Y OF A RG U M EN T
This Court has never ruled directly on the constitu
tionality of racial segregation in public elementary schools.
Plessy v. Ferguson, 163 U. S. 537 (1896) and Gong Lum
v. Rice, 275 U. S. 78 (1927), relied upon by the court
below, are not controlling here.
Segregation in State-supported educational institutions
violates the equal protection of the laws guaranteed by
the Fourteenth Amendment in that it is an inadmissible
classification. This Court has consistently rejected dif
ferential treatment by State authority predicated upon
racial classifications or distinctions.
The finding of the lower court that Negro children are
disadvantaged by the segregated public school system
necessitates granting the relief requested. That which is
unequal in fact cannot be equal in law and, therefore,
segregation and equality cannot co-exist in public educa
tion.
6
P O I N T I
The validity under the equal protection of the
laws clause of the Fourteenth Amendment of racial
segregation in public educational facilities has never
been decided by this Court.
The issue now squarely before this Court is whether
the State of Kansas, pursuant to statute, may maintain
and operate racially segregated public elementary schools,
without heed to the damage inflicted by segregation upon
its Negro victims. Despite the transcendent importance of
the question, this Court has never ruled directly on the
constitutionality of racial segregation in public education.
The Court has ruled on related problems, such as the
validity of racial segregation in transportation and in
housing. Regretfully, it has, but always in dictum, ap
peared to accept racial segregation where the validity of
segregation was not actually before the Court. Historically,
these dicta reflect the fact that prior to World War I, the
status of the American Negro was such that he could make
no realistic demand for equality of treatment in those sec
tions of the country in which he lived in substantial num
bers. Because of his depressed economic condition and
concentration in agriculture, his children could not even
obtain the most elementary education. Myrdal, An Ameri
can Dilemma, Ch. 8-9 (1944).
Following the adoption in 1868 of the Fourteenth
Amendment, the earliest case in which some reference was
made by this Court to racial segregation in education was
Hall v. DeCuir, 95 U. S. 485 (1878). That case involved
the validity of a State statute prohibiting segregation in
7
public carriers. The statute was declared unconstitutional
as an improper regulation of foreign and interstate com
merce. In a concurring opinion, Mr. Justice Clifford re
viewed with approval the conclusions of a number of
State cases which had upheld the reasonableness of racial
segregation in education and stated in dictum that segre
gation in the public schools did not violate the Fourteenth
Amendment if physically equal facilities for Negroes were
provided. It is probably unnecessary for us to note that
no evidence was offered in that case, because it would have
been irrelevant, that school segregation must in fact in
volve inequality.
In 1896 this Court decided Plessy v. Ferguson, 163
U. S. 537 (1896), which sustained the constitutionality of
a Louisiana statute requiring public carriers to furnish
separate but equal coach accommodations for whites and
Negroes. The Court as before, in dictum, cited with ap
proval several old State cases which had held that a State
could require the segregation of racial groups in its edu
cational system.
The constitutionality of “ separate but equal” facili
ties in education was concededly not before the Court in
either the Hall or the Plessy cases. Yet, although there
was no evidentiary or psycho-sociological basis for a dis
cussion of equal facilities in education, and in spite of the
fact that the statements of the Court were clearly dicta,
the Plessy case has been cited to this date by State and
lower Federal courts to sustain the constitutionality of
segregation in public educational institutions. See cases
cited, 46 Mich. L. Rev. 639, 643 (1948).
Three years later, this Court decided Gumming v.
County Board of Education, 175 U. S. 528 (1899). There
an injunction was sought to restrain a board of education
8
in Georgia from maintaining a high school for white chil
dren where none was maintained for Negro children. The
State court had upheld the board, saying that its alloca
tion of funds did not involve bad faith or abuse of dis
cretion. In affirming the decision of the State court, this
Court speaking through Mr. Justice Harlan, the lone dis
senter in Plessy, stated expressly that racial segregation
in the school system was not in issue. (542, 546)
The next case before this Court which involved com-
pulsoi-y educational segregation was Berea College v.
Kentucky, 211 U. S. 45 (1908), wherein the validity of a
State statute which prohibited domestic corporations from
teaching white and Negro pupils in the same private edu
cational institution was attacked. While the scope of the
statute was broad enough to include individuals as well
as corporations, this Court said:
. . . it is unnecessary for us to consider anything
more than the question of its validity as applied to
corporations. . . . Even if it were conceded that its
assertions of power over individuals cannot be sus
tained, still it must be upheld so far as it restrains
corporations. (54)
This Court agreed with the reasoning of the State
court that the statute could be upheld as coming within
the power of a State over one of its own corporate crea
tures. The statute was not deemed to have worked a dep
rivation of property rights. The rights of individuals were
not considered.1
1 Interestingly, since the decisions of this Court in Sweatt v.
Painter, 339 U. S. 629 (1950) and in McLaurin v. Oklahoma,
339 U. S. 637 (1950), Berea College accepts Negro students.
9
Not until 1927 did racial classification in educational
institutions again become the subject of controversy be
fore this Court. In Gong Lum v. Rice, 275 U. S. 78 (1927),
a Chinese girl contested the right of the State of Missis
sippi to assign her to a Negro school under the State’s
segregated school system. Mississippi contended that
under its statute requiring separate schools to be main
tained for children of the white and colored races, the
plaintiff could not insist on being classed with the whites
and that the legislature 'was not compelled to provide
separate schools for each of the non-white races.
The issue of segregation was not presented in that
case. The plaintiff accepted the system of segregation in
the public schools of the State but contested her classifi
cation within that system.
Nor -was the validity of segregation before the Court
in the case of Missouri ex rel. Gaines v. Canada, 305 U. S.
337 (1938). There the petitioner wras refused admission
to the University of Missouri Law School, a State-sup
ported institution, solely because he Avas a Negro. He
brought mandamus to compel the University to admit him.
The State, having no law school for Negroes, sought to
fulfill its obligation to provide equal educational facilities
by offering to pay the petitioner’s tuition for a legal edu
cation in another State. This the Court held did not sat
isfy the constitutional requirement. It said that the peti
tioner Avas entitled to be admitted to the University of
Missouri Law School in the absence of other and proper
provision for his legal training within the State of Mis
souri. The issue Avas Avhether an othenvise qualified Negro
applicant for Iuav training could be excluded from the
only State-supported laAv school. This Court assumed that
10
the validity of equal facilities in racially separate schools
was settled by earlier decisions and cited the Plessy case,
McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151
(1914), both of which involved segregation in public car
riers, and the Gong Lum case. But the constitutional
validity of segregation was not decided.
The next consideration of a related problem was in
1948 in Sipuel v. Board of Regents of the University of
Oklahoma, 332 U. S. 631. This Court, in a per curiam
decision, said that the State must provide laAv school fa
cilities for the Negro petitioner “ in conformity with the
equal protection clause of the Fourteenth Amendment and
provide it as soon as it does for applicants of any other
group” (633). The facts in the Sipuel case were similar
to those in the Gaines case, in that no law school facilities
were afforded Negroes by the State of Oklahoma.
Segregation was not at issue in the Sipuel case. This
Court stated in Fisher v. Hurst, 333 U. S. 147 (1948), that:
The petition for certiorari in Sipuel v. University
of Oklahoma did not present the issue whether a state
might not satisfy the equal protection clause of the
Fourteenth Amendment by establishing a separate
law school for Negroes. On submission, we were
clear it was not an issue here. (150)
The most recent cases involving segregation in public
institutions of learning were Sweatt v. Painter, 339 U. S.
629 (1950) and McLaurin v. Oklahoma State Board, of
Regents, 339 U. S. 637 (1950). Although the petitioners
and numerous amici in those cases urged this Court to rule
expressly that discrimination inevitably results from en
forced segregation in educational institutions, the Court did
not reach that question. In Sweatt, Mr. Chief Justice Vin
son, speaking for a unanimous Court, said, “ Nor need we
11
reach petitioner’s contention that Plessy v. Ferguson
should be reexamined in the light of contemporary knowl
edge respecting the purposes of the Fourteenth Amend
ment and the effects of racial segregation” (636). The
judgment of the court below was reversed and the Uni
versity of Texas Law School was ordered to admit the
petitioner because equivalent educational opportunity was
not afforded by the hastily organized Negro law school.
In McLaurin, again speaking for a unanimous bench,
Mr. Chief Justice Vinson expressly limited the decision:
In this case, we are faced with the question whether
a state may, after admitting a student to graduate
instruction in its state university, afford him different
treatment from other students solely because of his
race. We decide only this issue . . . (638)
Thus in no case previously before this Court, in which
racial segregation in public education has been the subject
of comment in an opinion, has the Court felt called upon
to rule squarely on the issue: Does segregation in public
educational institutions meet the requirements of the equal
protection of the laws clause of the Fourteenth Amend
ment ?
We emphasize that absence of a specific ruling at the
outset of this brief because of the thread of urgency
running through the fabric of much previous argument
on the crucial issue in this case, namely, that the “ sepa
rate but equal” doctrine, as it has been thought to apply
to public educational institutions, should be “ overruled” .
Indeed, in that framework, there is nothing to overrule.
But there are dicta which must be disavowed. The con
stitutionality of segregation in educational institutions
was clearly not involved in Plessy or Gong Lum, the two
cases relied upon by the court below.
1 2
P O I N T II
Racial segregation in public educational institu
tions is an unconstitutional classification under the
equal protection of the laws clause of the Fourteenth
Amendment.
This Court’s decisions in cases involving the constitu
tionality of governmental action reveal a special scrutiny
and constant vigilance in those instances where such ac
tion was predicated upon alleged racial distinctions or
where racial classifications were involved. Except in
times of overriding peril or crisis, this Court has rejected
all obvious or devious efforts to establish racial or reli
gious lines of demarcation for the enjoyment of civil
rights.
Whereas in cases involving other types of legislative
classifications, the “ one who assails the classification . . .
must carry the burden of showing that it does not rest
upon any reasonable basis” , Lindsley v. Natural Carbonic
Gas Co., 220 U. S. 61, 79 (1911), “ all legal restrictions
which curtail the civil rights of a single racial group are
immediately suspect” . Korematsu v. U. 8., 323 U. S. 214,
216 (1944).
Again, “ only the most exceptional circumstances can
excuse discrimination on that basis in the face of the
equal protection clause.” Oyania v. California, 332 U. S.
633, 646 (1948). In HirabayasJii v. U. S., 320 U. S. 81
(1943), this Court 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 doc
13
trine of equality. For that reason, legislative classi-
cation or discrimination based on race alone has
often been held to be a denial of equal protection.
( 100)
In the application of these principles, the Court has,
with one exception (discussed -infra), always declared gov
ernmental classification based on race or color to be con
stitutionally invalid.
This Court has ruled that Negroes must be treated the
same as whites with respect to the privilege and duty of
jury service. Strauder v. West Virginia, 100 U. S. 303
(1880). It has stricken down state statutes aimed at keep
ing the Negro “ in his place.” Bailey v. Alabama, 219
U. S. 219 (1911); U. S. v. Reynolds, 235 U. S. 133 (1914).
Common carriers engaged in interstate travel have been
prevented from segregating and discriminating on the
basis of race or color. Mitchell v. U. S., 313 U. S. 80
(1941); Morgan v. Virginia, 328 U. S. 373 (1946); Hen
derson v. V. S., 339 U. S. 816 (1950). Repeated instances
of prejudice in criminal cases evidenced by brutal treat
ment of Negroes have been condemned. Brown v. Mis
sissippi, 297 U. S. 278 (1936); Chambers v. Florida,
309 U. S. 227 (1940); Shepherd v. Florida, 341 U. S. 50
(1951). Racial segregation through zoning and attempts
to institutionalize ghettos by restrictive covenants have
been outlawed. Buchanan v. Warley, 245 U. S. 60 (1917);
Shelley v. Kraemcr, 334 U. S. 1 (1948). Discrimination
has been forbidden in labor unions that receive their col
lective bargaining and representation powers by virtue
of statute. Steele v. Louisville & Nashville Railroad Co.,
323 U. S. 192 (1944); Tunstall v. Brotherhood of Locomo
tive Firemen, 323 U. S. 210 (1944); Brotherhood of R. R.
Trainmen v. Howard, — U. S. — , 72 S. Ct, 1022 (1952).
14
From time to time, this Court has stricken down all the
various devices used to prevent or limit Negroes from
participating in elections. Guinn v. U. S., 238 U. S. 347
(1915); Nixon v. Herndon, 273 U. S. 536 (1927) ; Smith v.
Allwright, 321 U. S. 649 (1944). So, too, laws which in
their administration have effected a limitation or denial
of the right to carry on a business or calling because of
race or ancestry, have been declared unconstitutional.
Yick Wo v. Hopkins, 118 U. S. 356 (1886); Yu Cong Eng
v. Trinidad, 271 IT. S. 500 (1926); Takahaslii v. Fish and
Game Commission, 334 U. S. 410 (1948).
In Buchanan v. Warley, 245 U. S. 60, which involved a
racial residential zoning ordinance, the State invoked its
authority to pass laws in the exercise of its police power,
and urged that this compulsory separation of the races
in habitation be sustained because it would “ promote the
public peace by preventing race conflicts” (81). This
Court rejected that contention, saying:
The authority of the state to pass laws in the exercise
of the police power . . . is very broad . . . [and] the
exercise of this power is not to be interfered with by
the courts where it is within the scope of legislative
authority and the means adopted reasonably tend to
accomplish a lawful purpose. But it is equally well
established that the police power . . . cannot justify
the passage of a law or ordinance which runs counter
to the limitations of the Federal Constitution . . . (74).
The police power of the State, broad as it is, does not
justify a racial classification where rights created or pro
tected by the Constitution are involved.
In Shelley v. Kraemer, 334 IT. S. 1, this Court, by
unanimous decision, held that the enforcement of racial
restrictive covenants by State courts is State action,
15
prohibited by the equal protection clause of the Four
teenth Amendment. In the course of its decision, the
Court measurably strengthened the equal protection clause
as a formidable barrier to restrictions having the effect
of racial segregation. The contention was there pressed
that since the State courts stand ready to enforce racial
covenants excluding white persons from occupancy or
ownership, enforcement of covenants excluding Negroes
is not a denial of equal protection. This Court rejected
the equality of application argument, decisively dismissing
it in the following language:
This contention does not bear scruitiny. . . . The
rights created by the first section of the Fourteenth
Amendment are, by its terms, guaranteed to the
individual. The rights established are personal rights.
It is, therefore, no answer to these petitioners to say
that the courts may also be induced to deny white
persons rights of ownership and occupancy on grounds
of race or color. Equal protection of the laws is not
achieved through indiscriminate imposition of in
equalities. (21, 22)
There has been but one recent departure from this rule.
This Court stated that “ in the crisis of war and of
threatened invasion” when the national safety might
appear to be imperilled, it will permit a racial classifica
tion by the Federal Government. Hirabayashi v. U. 8.,
320 U. S. 81, 101. That case involved a prosecution for
failure to obey a curfew order directed against citizens
of Japanese ancestry. Korematsu v. U. S., 323 U. S. 214,
arising out of the same war emergency, involved the
validity of a governmental oi’der excluding all persons of
Japanese ancestry from the West Coast military area.
The Court, on the grounds of overriding pressing public
urgency in time of war, sustained the racial classification
16
in these cases, but it emphasized that this was an ex
traordinary exception. “ [Legislative classification or dis
crimination based on race alone has often been held to
be a denial of equal protection. . . . We may assume” ,
continued the Court, ‘ ‘ that these considerations would be
controlling here were it not for the fact that the danger
of espionage and sabotage, in time of war and of threat
ened invasion” has made necessai’y this racial classi
fication, which ‘ ‘ is not to be condemned merely because
in other and in most circumstances racial distinctions are
irrelevant.” Hirabayashi v. U. S., supra, 101.
Clearly, State laws providing for racial segregation in
public educational facilities are not accompanied by any
“ pressing public necessity” . The record here is barren
of any such showing, as indeed it would have to be. Rather,
there is a pressing public necessity to give all American
citizens their due— equality of opportunity to use educa
tional facilities established by the State for its inhabitants.
P O I N T I I I
The finding of the court below, that Negro chil
dren are disadvantaged by the segregated public
school system of Topeka, requires this Court to dis
avow the “separate but equal” doctrine as it has
been applied to public educational institutions.
In one vital respect, the problem posed by this record
is sharpened to the point of unique narrowness. The un
challenged finding that segregation irreparably damages
the child lifts this case out of the murky realm of specu
lation on the issue of “ equality” of facilities, into the
17
area of certainty that segregation and equality cannot
co-exist. That which is unequal in fact cannot be equal in
law.
It is respectfully submitted that the finding of the court
below, that Negro children were disadvantaged by the
segregation of white and colored students in the public
elementary schools, requires this Court to reverse the
lower court’s refusal to grant the requested relief. The
lower court found as a fact that the segregation of white
and Negro children in the public schools “ has a detri
mental effect upon the colored children’ ’ ; that such segre
gation creates in Negro children a “ sense of inferiority”
which “ affects the motivation of a child to learn” ; that
legally sanctioned segregation “ therefore has a tendency
to retard the educational and mental development of
[N]egro children and to deprive them of some of the
benefits they would receive in a racially integrated school
system. ’ ’
Educators and social scientists have long proclaimed
that these and other social evils necessarily flow from
racially segregated education. Segregation in Public
Schools—A Violation of “ Equal Protection of the Laws” ,
56 Yale L. J. 1059, 1061 (1947). See also Long, Some
Psychogenic Hazards of Segregated Education of Negroes,
4 J. of Negro Ed. 336, 343 (1935); Long, The Intelligence
of Colored Elementary Pupils in Washington, D. C., 3 J.
of Negro Ed. 205-222 (1934); Gallagher, American Caste
and the Negro College, 109, 184, 321-2 (1938); Bond, Edu
cation of the Negro in the American Social Order, 385
(1934); President’s Commission on Higher Education,
2 Higher Education for American Democracy 35 (1947);
Heinrich, The Psychology of a Suppressed People, 52, 57-
18
61 (1937); Myrdal, An American Dilemma, 54-5, 97-101,
577-8, 758; Frenkel-Brunswik, A Study of Prejudice in
Children, 1 Human Relations 295, 305 (1948); Goodman,
Race Awareness in Young Children (1952); Adorno,
Frenkel-Brunswik, Levinson and Sanford, The Authori
tarian Personality, Ch. IV, V (1950).
Whenever this Court has been presented with a record
that established inequality in fact as between educational
opportunities offered by the State to its white and Negro
inhabitants, it has ordered the immediate termination of
the inequality. Missouri ex rel. Gaines v. Canada, 305 U. S.
337; Sipuel v. Board of Regents, 332 IT. S. 631; Fisher v.
Hurst, 333 U. S. 147; Sweatt v. Painter, 339 IT. S. 629.
In McLaurin v. Oklahoma, 339 IT. S. 637, this Court went
even further to hold that officially imposed racial segre
gation within a State-maintained school violated the equal
protection clause. It is noteworthy that the court below
said in its opinion, where “ segregation within a school
as in the McLaurin case is a denial of due process, it is
difficult to see why segregation in separate schools would
not result in the same denial.” Brown v. Board of Edu
cation of Topeka, 98 F. Supp. 797, 800 (Emphasis added).
We respectfully urge this Court to follow the prin
ciples it recently enunciated in Sweatt and McLaurin,
rather than the unsound ones of Plessy and Gong Lum,
and to hold unequivocally that racial segregation per se
in all State educational institutions, is a violation of the
equal protection of the laws clause of the Fourteenth
Amendment.
The Need to D isavow P l e s s y
As we explained in Point I, we believe that Plessy is
not controlling. Assuming, arguendo, that the court below
was justified by Plessy in refusing to hold that segregation
19
in public elementary schools is per se discrimination under
the Fourteenth Amendment, this Court should now ex
pressly overrule Plessy and reverse the court below. This
Court has not hesitated in the past to overrule or recon
sider and reverse earlier decisions where the nature and
consequences of discrimination became fully disclosed or
apparent upon later consideration. Murdock v. Pennsyl
vania, 319 U. S. 105 (1943), reversing Jones v. Opelika,
316 U. S. 584 (1942); West Virginia State Board of Edu
cation v. Barnette, 319 U. S. 624 (1943), overruling Miners-
ville School District v. Gobitis, 310 U. S. 586 (1940); Smith
v. Allwright, 321 U. S. 649, overruling Grovey v. Toivnsend,
295 U. S. 45 (1935). “ In constitutional questions, where
correction depends upon amendment and not upon legis
lative action this Court through its history has freely
exercised its power to reexamine the basis of its constitu
tional decisions.” Smith v. Allwright, supra, 655 and cases
cited in footnote 10 thereto.
Lower courts, State and federal, have indicated clearly
that they believe a break with the “ separate but equal”
doctrine in education is “ in the wind” , but they insist
that they must await such a holding by this Court. Belton
v. Gebhart, decided by the Delaware Court of Chancery,
April 1, 1952, affirmed by the Supreme Court of that State
on August 28, 1952; Banks v. San Francisco Housing
Axithority, decided October 1, 1952, by the Superior Court
of San Francisco; Brown v. Board of Education of To
peka, 98 F. Supp. 797, 798; Briggs v. Elliott, 98 F. Supp.
529, 535 (1951).
It is not surprising that American courts are ques
tioning the validity of Plessy in view of the tremendous
changes which have taken place since the turn of the cen
tury in the understanding of the nature of the individual
2 0
and his relationships to racial groupings and to society.
Scientific research in the fields of anthropology, sociology,
biology and education has demonstrated the fallaciousness
of the racial and blood strain concepts which are basic
to the majority opinion in Plessy.
P eacefu l Integration W ill F ollow
The defenders of racial segregation have frequently
expressed the fear that compulsory destruction of the bar
riers in the public schools would increase racial tensions
and even cause strife. Such results, obviously, should be
avoided if possible, without yielding constitutional prin
ciples. Experience, however, has clearly demonstrated
that these dire predictions are unfounded.
Following this Court’s decision in McLaurin v. Okla
homa, 339 U. S. 637, Negro students applied for admission
and were admitted in large numbers to that State’s col
leges and universities. By June 1951, approximately 400
Negroes were enrolled at the University of Oklahoma and
at Oklahoma A & M, all without the slightest increase in
racial tension, but rather with every sign of increased
mutual understanding and respect. The Oklahoma City
Daily Oklahoman, June 7, 1951.
In Texas, after the decision in Sweatt v. Painter, 339
U. S. 629, two Negroes were admitted to the University
of Texas Law School and two others were admitted to the
Dental School. 52 American Jewish Yearbook 42 (1951);
The Houston Chronicle, Sept. 10, 1952. Negroes have also
been admitted to private institutions of higher learning
in Texas following Sweatt. Southern Methodist Univer
sity (The Houston Post, January 9, 1951), Amarillo Col
lege (Dallas Times Herald, October 2, 1951) and several
other junior colleges (The Houston Informer, December
5, 1951) have all found that the admission of Negroes was
2 1
possible without any adverse effect upon interracial rela
tions. Quite the contrary. The Austin Statesman of No
vember 14, 1950, reported the white students at Southern
Methodist University advised the president that “ SMU
student opinion favors admitting Negroes to the school.”
The University of Arkansas has accepted Negroes for
LL.B. and M.D. degrees. Little Rock Arkansas Gazette,
July 1, 1951; New York Post, August 24, 1948. Notwith
standing the fact that the University of Florida has thus
far refused to admit Negroes, the Florida Student Gov
ernment Association, an organization of student leaders
representing all colleges and universities in the State,
unanimously passed a resolution calling for an immediate
end to racial segregation in the State’s institutions of
higher learning. Miami Herald, May 6, 1951. The Uni
versity of Kentucky since 1949 has enrolled Negro stu
dents. New York Herald Tribune, June 23, 1949. By
July 1950, twelve Negroes were attending classes at the
University and “ [t]hey took their places quietly in the
student body without any open hostility.” Dawkins, Ken
tucky Outgrows Segregation, The Survey, July 1950. Pri
vate educational institutions have followed the lead of the
University of Kentucky. Berea College led the way. Three
Roman Catholic colleges in Louisville, Nazareth, Ursuline
and Bellarmine Colleges, immediately followed suit. Next
to fall in line was the University of Louisville with a stu
dent body of seven thousand. Southern Baptist Theologi
cal Seminary and Louisville Theological Seminary now
also admit Negroes on an unsegregated basis.
In July 1950, the first Negroes were admitted to the
University of Missouri and less than two years later a
Negro was appointed to the faculty. St, Louis Post-
22
Dispatch, July 7, 1950; St. Louis Globe-Democrat, April
17, 1952. St. Louis University has admitted Negroes to
all its facilities for the past few years. They have been
fully integrated into the University program with no
unhappy results. During the academic year 1950-51, a
total of 351 Negro students was enrolled and there were
five Negro faculty members. The experience of institu
tions like St. Louis University has demonstrated that the
admission of Negro students poses no problem of accept
ance by white students. Morisey, A Neiv Trend in Private
Colleges, New South, Aug.-Sept. 1951. Another private
university in St. Louis, Washington University, admits
Negroes to all its branches and schools. St. Louis Post-
Dispatch, May 11, 1952. Its experience has been identical
with that of St. Louis University.
In July 1951, the University of North Carolina ad
mitted its first Negro student. Washington Times-Herald,
July 17, 1951. The following September, six additional
Negro students attending the University, were excluded
from the regular student cheering section at a football
game. When the entire student body protested this action
by the University authorities, it was quickly reversed.
NeAv York Herald Tribune, September 28, 1951.
Since 1951, the University of Virginia has been ad
mitting Negro students and “ the formerly ‘ all-white’
schools which have accepted Negro students have found
that their presence creates no special problem” . Rich
mond News Leader, September 25, 1952.
The College of William and Mary, which next to Har
vard University is the oldest of the country’s colleges,
has admitted two Negro students, both of whom are
attending regular day classes. According to President
23
Chandler, “ [t]he presence of these two Negro graduate
students has not created any special problems on the
campus.” Ibid.
By July 1951, there were approximately one thousand
Negro students in previously “ all-white” institutions of
higher education in the South. “ They have encountered
virtually no open objection to their presence.” Saveth,
The Supreme Court and Segregation, The Survey, July
1951.
Just as the admission of Negroes to formerly “ all-
white” colleges and universities has created no friction
or other difficulties, so too experience has proved that in
tegration of white and Negro children at the elementary
and high school levels can be acieved without incident.
In the State of New Mexico where segregation is al
lowed, though not required, in the public schools, the town
of Carlsbad maintained separate schools for the two races
until 1951. Following the refusal of the State School
Board to accredit the inferior Negro high school, the local
school authorities voted to admit Negroes to the “ white”
school. “ Carlsbad white students approved the move. The
1951 graduating class and the high school senior council
voted unanimously to welcome the Negro students. The
junior and senior class and faculty members were 95 per
cent in favor of it.” Santa Fe New Mexican, September 2,
1951. The integration has not caused a single untoward
incident to date. Furthermore, racial segregation was
abolished in Alamagordo’s public schools in August of
this year and the first Negro teacher was hired to teach
in that New Mexico city’s integrated public schools. There
has been no disharmony as a result of either action.
2 4
Racial segregation in public schools is not required in
Arizona. Local school boards are free to determine
whether or not they will maintain a dual educational
system. Under this local option provision, segregation has
been abandoned in the public schools of every city and
town in the State except Phoenix. The transition from
segregation to integration was made in all these communi
ties without any difficulty.
Despite the fact that segregation in public schools has
been banned in Illinois for many years, segregation was
the practice in most of the southern counties. A 1949
State statute provided that no State funds should be made
available to any school district where racial segregation
of students is practiced. This statute led to a movement
to abolish segregation in the southern communities of
Illinois. Notwithstanding an 85-year-old policy of racial
segregation in the public schools of East St. Louis, the
local board of education abandoned segregation and
adopted a policy of integration. There was “ no indication
of any organized resistance to the change” which was
effected without incident. The New York Times, January
30, 1950. Segregation in public schools was also abandoned
in Harrisburg (Chicago Sun-Times, September 26, 1950),
in Alton, a stronghold of racial discrimination even dur
ing World War II (Pittsburgh Courier, December 1, 1951),
and in Cairo at the southernmost tip of the State.
A similar process of uneventful integration is under
way in southern Ohio. In Glendale, a town about fifteen
miles from the Kentucky border, segregation in the public
schools was ended in October of this year when the local
board of education was advised that exclusion of Negro
pupils from a formerly “ all-white” school violated the
25
Constitution. In Dayton, the school board abolished segre
gation in the use of two swimming pools at Roosevelt
High School on June 22, 1950. Dayton Journal Herald,
June 23, 1950.
New Jersey is another State which, while normally
considered a Northern State, has a long-standing tradition
of racial segregation in its southern regions. In Novem
ber 1947, the people of New Jersey adopted a new State
Constitution which prohibited any person from being
“ segregated in the militia or in the public schools, because
of religious principles, race, color, ancestry or national
origin” . When this Constitution was adopted, cynics re
marked that the clause against racial segregation was an
excellent statement of principle but they predicted that
segregation would not be eliminated for at least a genera
tion. In 1948, the New Jersey Department of Education
made a survey of the 52 school districts in the State which
were reported to practice segregation in one form or an
other. It found that in 43 districts, segregation was im
posed by the school authorities. These districts ranged in
size from rural areas with one-room schools to large cities
with many schools. The end of the school year 1950-51
saw the complete elimination of segregation in 39 of the
43 school districts involved. In the other 4 districts, steps
had by that time been taken and building proposals were
underway which would bring about complete integration
in the near future. The report of the New Jersey Depart
ment of Education states:
A most significant factor in this transition is that
it has been done with a minimum of friction and a
maximum of good will.
Another important factor has been the success with
which colored teachers, who formerly taught classes
26
consisting of all colored children, have been employed
to teach classes of mixed races. While many indi
vidual examples could be cited, one in particular bears
mentioning. The one in question contained the only
junior high school operated on a segregated basis.
This junior high school was a fairly large institution
and naturally existed in a good sized city. Today, the
student body of this school is approximately one-third
Negro and two-thirds white. The teachers who for
merly were teaching all-Negro junior high school
classes have been completely integrated into the new
setup and include teachers of all regular and special
subjects. The morale of both the student body and
faculty is excellent. Biennial Report for the Years
July 1 , 1949, to June 30, 1951, State of New Jersey,
Department of Education, Division Against Discrimi
nation 12, 13.
On the basis of the accumulated experience, instances
of which we have described above, we are convinced that
integration can and will be accomplished in the public
schools of the South without “ bloodshed and violence”
if the law enforcement agencies, federal or local, demon
strate that they will not tolerate breaches of the peace or
incitement. Americans are law abiding people and abhor
klanism and violence.
Segregation Is A n E conom ic W aste
There is another cogent reason that this Court should
speak out clearly and definitively now. Since the “ separate
but equal” doctrine in public education will have to be
abandoned ultimately, it should be abandoned sooner
rather than later, to forestall the wasteful expenditure by
many States of huge sums of money to build segregated
schools when that money could be used more economically
and enduringly to build and improve public schools where
they will provide the greatest good for the greatest num
ber. This we believe is a necessary consequence of the
constitutional requirement that the State must grant each
person equal protection of its laws.
27
The President’s Committee on Civil Rights, in its his
toric report, To Secure These Rights (1947), states:
The South is one of the poorer sections of the country
and has at best only limited funds to spend on its
schools. With 34.5 percent of the country’s popula
tion, 17 southern states and the District of Columbia
have 39.4 percent of our school children. Yet the
South has only one-fifth of the taxpaying wealth of
the nation. Actually, on a percentage basis, the South
spends a greater share of its income on education than
do the wealthier states in other parts of the country.
(63)
The South has been struggling under a heavy financial
burden to support its educational system, with the Negro
schools admittedly inferior to the white. The southern
States would have to expend over one and one-half billion
dollars to bring the Negro schools to the level of the
“ white” schools and, in addition, approximately eighty-one
million dollars annually just to maintain parity. Charles
H. Thompson, Dean, Graduate School of Howard Univer
sity, Letter to the Editor, The New York Times, April 6,
1952. This additional burden is beyond the capacity of
the South to bear. Bond, in Education of the Negro in the
American Social Order (1934) sums this up:
If the South had an entirely homogeneous population,
it would not be able to maintain schools of high
quality for the children unless its states and local
communities resorted to heavy, almost crushing rates
of taxation. The situation is further complicated
by the fact that a dual system is maintained. Con
sidering the expenditures made for Negro schools, it
is clear that the plaint frequently made that this dual
system is a burden is hardly true; but it is also clear
that if an honest attempt were made to maintain
“ equal, though separate schools” , the burden would
be impossible even beyond the limitation of existing
poverty. (231)
2 8
Public schools should be planned and erected as part
of the development of the total community. They should
be built in those areas that have expanding populations
and needs for such facilities, rather than in opportunistic
response to random law suits or threats of law suits, as is
now the case in many southern States.
Conclusion
The United States is now engaged in an ideological
world conflict in which the practices of our democracy are
the subject of close scrutiny abroad. We cannot afford,
nor will the world permit us, to rest upon democratic
pretensions unrelated to reality.
The people of other lands listen not only to our Voice
of America which quite properly extols the virtues of
democracy; they listen to broadcasts from Communist
sources as well. We know that our enemies seize eagerly
upon the weaknesses of our democracy and, for propa
ganda purposes, magnify, exaggerate and distort hap
penings in the United States. Not so well known, although
possibly more significant, is that the liberal and conserva
tive press abroad is constantly comparing our declara
tions and statements about democracy with our actual
practices at home. Domestic incidents are noted and com
mented upon. Our discriminatory practices in education,
in employment, in housing, have all been the subject of
much adverse press comment in those foreign countries
which we are trying to keep in the democratic camp.
While McGee v. Mississippi, 40 So. 2nd 160 (1949), was
the subject of some considerable comment in Communist
circles here and elsewhere, the Paris office of the American
2 9
Jewish Committee assembled characteristic press comment
from liberal, conservative and Catholic European news
papers :
Semailles, a liberal Marseilles newspaper, said on May
18, 1951:
In associating ourselves with the United States in the
defense of liberty, we have included in the notion of
liberty, a respect for all human beings, the notion of
the common fraternity of all men. And it appears
that in this association, we, too, have much to bring.
"W hat the world awaits from us is not cannons and
atomic bombs, but the permanent and vigilant affirma
tion of the inalienable right of all men to be judged
according to their acts and not according to the color
of their skin or the latitude in which they were born.
Otherwise, where is the difference between our enemies
and ourselves?
An editorial, entitled “ An American Tragedy” , in the
Vienna Arbeiter-Zeitung, one of the staunchest anti-Com-
munist publications in Europe, said on February 4, 1951:
The Communist reply to accusations made about the
injustices and cruelties of their dictatorship, of forced
labor, of the arbitrariness of their courts and their
violation of human dignity, by pointing to the in
sincerity of American democracy which permits racial
persecution and deprives millions of human beings of
their equal rights on the basis of the color of their
skin.
One cannot appear before the world as a fighter for
freedom and right when one is unable to eliminate
injustice in one’s own house.
L ’Aube, Paris organ of the Popular Republican Move
ment (MRP), the second largest political party in France,
led by Georges Bidault and Foreign Minister Robert Schu-
man. in its May 9, 1951, issue said:
3 0
How much does a Negro weigh in a world where
people of all colors are struggling with the hitter
forces of nature and societies? Why is there so much
noise about a trial which after all is an internal affair,
not only of the United States of America, but of one
of its states? He weighs exactly that of all those
whose lot it is to protest an injustice. And the in
justice in this instance has as its name, racism. Our
reaction to injustice does not depend on the region of
the world where the wrong was committed. It is the
more bitter to know that it took place in a continent
which gave for liberty enough of its sons not to
deliver up to hatred of a poor Negro; that is what
weighs heavily.
On April 7, 1950, the Cologne Welt Der Arbeit, official
publication of the anti-Connnunist German trade unions,
carried an article entitled, “ The Negro Question in the
U. S .” That article contained the following significant
language :
In recent weeks, one found in the German press the
following items: In Frankfurt-am-Main the proprietor
of a cafe was fined 600 DM by American Occupation
Authorities because he had ejected two colored Ameri
can soldiers from his establishment. In Washington,
the Capital of the U. S. A., Doctor Bunche, who made
a name for himself as the UN intermediary in Pales
tine, was refused admittance to a movie house because
he was colored. He then went to another movie house
where he spoke French and was admitted because it
was believed he was a foreigner. In the one case, the
American authorities want foreigners to treat every
colored soldier with dignity as an American citizen
and punish any transgression of this principle. On
the other hand, world-famous leaders of the colored
population are deprived of their full equality. How
are these two attitudes to be reconciled? It is only
too natural that the average European can make no
sense of such contradictions. The racial attitudes in
the U. S. have no parallel in the entire world.
31
And finally, we have the following quotation from the
liberal Le Matin of Antwerp, Belgium, in May 1951:
The crime of racism is odious. And, without doubt,
the world will never know true peace while there exist
nations, peoples or races that believe themselves su
perior to other nations, peoples or races. It is a pain
ful declaration to make at the moment when our
American friends are presenting themselves in the
United Nations as the sturdy defenders of the free
world.
Legally imposed segregation in our country, in any
shape, manner or form, weakens our program to build
and strengthen world democracy and combat totalitarian
ism. In education, at the lower levels, it indelibly fixes
anti-social attitudes and behavior patterns by building
inter-group antagonisms. It forces a sense of limitation
upon the child and destroys incentive. It produces feel
ings of inferiority and discourages racial self-appreciation.
3 2
For all of the reasons urged herein, State-imposed racial
segregation in public schools, denies to the appellants
herein, and to all similarly situated Negro children, equal
protection of the laws in every meaningful sense of those
words.
The judgment of the court below should be reversed.
Respectfully submitted,
Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays,
Frank E. Karelsen,
of the New York Bar,
Leonard Haas,
of the Georgia Bar,
Saburo Kido,
o f the California Bar,
W aldo B. W etmore,
of the Kansas Bar,
Attorneys for Amici Curiae.
T heodore Leskes,
Sol Rabkin,
of the New York Bar,
of Counsel.
November 15, 1952
33
APPENDIX
American Civil Liberties Union
The American Civil Liberties Union is a private or
ganization composed of individual citizens. It is devoted
to supporting the Bill of Rights—for everybody. Founded
in 1920, it has, day in and day out, actively championed
the three-fold cause of civil liberties, the heart and core
of democratic government, as set forth in the Constitution
and the Declaration of Independence: (1) Government
by the people, grounded on freedom of inquiry and ex
pression— speech, press, assembly and religion—for every
body; (2) specific rights guaranteed to the people, such
as due process and fair tidal—for everybody; and (3)
equality of the people before the law—for everybody,
regardless of race, color, place of birth, position, income,
political opinions, or religious belief.
The Union has no cause to serve other than civil liber
ties. It is dedicated simply and solely to furthering the
actual practice of democracy. It defends the civil liberties
of everybody, including those whose anti-democratic opin
ions it abhors and opposes, like Communists, Nazis, Fas
cists and Ku Klux Klanners.
3 4
The American Ethical Union is a national association
of Societies for Ethical Culture. Its purpose is to bring
into close fellowship of thought and action existing Ethical
Societies and to promote the establishment of new socie
ties. It is thus devoted, on a national scale, as is each
society in its local setting, to the promotion of the knowl
edge, the love and the practice of the right in all the rela
tionships of life. It asserts the supreme importance of the
ethical factor in all the relations of life and affirms the
belief that the greatest spiritual values are to be found in
man’s relationship to man. Through its religious and edu
cational programs it seeks to make the individual more
adequate in his personal relationships and better able to
contribute to the life of his community. The Ethical So
ciety has as one of its objectives the inspiring words of
St. Paul: ‘ ‘ He has made of one blood all nations of men to
dwell on the earth.”
American Ethical Union
35
The American Jewish Committee is a corporation cre
ated by an Act of the Legislature of the State of New
York in 1906. Its charter states:
The object of this corporation shall be to prevent the
infraction of the civil and religious rights of Jews, in
any part of the world; to render all lawful assistance
and to take appropriate remedial action in the event
of threatened or actual invasion or restriction of such
rights, or of unfavorable discrimination with respect
thereto . . .
During the forty-six years of its existence it has been
one of the fundamental tenets of the organization that the
welfare and security of Jews in America depend upon the
preservation of constitutional guarantees. An invasion of
the civil rights of any group is a threat to the safety of all
groups.
For this reason the American Jewish Committee has
on many occasions fought in defense of civil liberties
even though Jewish interests did not appear to be spe
cifically involved.
American Jewish Committee
36
Anti-Defamation League
of
B’nai B’rith
B ’nai B ’rith, founded in 1843, is the oldest civic or
ganization of American Jews. It represents a member
ship of over 350,000 men and women and their families.
The Anti-Defamation League was organized in 1913, as a
section of the parent organization, in order to cope with
racial and religious prejudice in the United States. The
program developed hy the League is designed to achieve
the following objectives: to eliminate and counteract
defamation and discrimination against the various racial,
religious and ethnic groups which comprise our American
people; to counteract un-American and anti-democratic ac
tivity ; to advance goodwill and mutual understanding
among American groups; and to encourage and translate
into greater effectiveness the ideals of American democ
racy.
37
The Japanese American Citizens League is the national
organization of Americans of Japanese ancestry. Estab
lished in 1930, its story is an account of a group of young
Americans treasuring their birthright of American citizen
ship, defending it and seeking to be worthy of it. Although
its membership is composed primarily of Americans of
Japanese ancestry, membership is open to all Americans
who believe in its principles.
The purpose of the organization is to promote good
citizenship, protect the rights of Americans of Japanese
ancestry, and acquaint the public in general with this group
of citizens toward their full acceptance into American life.
The twin mottoes of “ For Better Americans in a Greater
America” and “ Security Through Unity” express this
purpose.
Japanese American Citizens League
38
Unitarian Fellowship for Social Justice
The Rev. Dr. John Haynes Holmes and a group of other
Unitarian clergymen established the Unitarian Fellowship
for Social Justice in 1908. They sought “ to sustain one
another in united action against social injustice and in the
realization of religious ideals in present-day society. ’ ’ Dr.
Holmes served for three years as the Fellowship’s first
president.
The Fellowship concerns itself especially with freedom
of conscience, the rights of minorities, the defense of public
education, and substantial efforts to strengthen the United
Nations and to plan for peace.
The Fellowship participates in the United Unitarian
Appeal for its funds, and it is affiliated with the American
Unitarian Association through the Association’s Depart
ment of Adult Education and Social Relations. The society
has individual members, organizational affiliates, and chap
ters throughout the United States and Canada in Unitarian
and liberal community churches.