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 09, 2025.
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OLIVER \,BL30WJt |'m t ; y . n o k - R B O F EDUCATION | V O L . I t AMICUS CURIAE BRIEFS f 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. P ress o r B yron S. A d a m s , W ashington , D . C. : f ' ; 'ir, •. / 1.; -r,; £** ■'./F' ?)-' < j) •¥ bb ■ t .: A . T ' V - 0 / -V>'-", bi. T M 4 : f : (7 ./-b n y , 7 . . X 4, -\' by t* .̂..A-A. r. -v . ,.■ ,f:i ’ SM OS : ; f —'\ - * vrVi* ; ;,-.7 ‘ ~ v A j....A- - . ... 1 ■ *.;b. x t / r b : ; : , X n} v . ; ; 7 7 - 1 ,b : X , i :M - ■■ , L - F ■■ ■ , |X, . 0 ;,.7 , y - : 1 : -V,, XX ... ; ,,. .v.,: ■ X b V> ■$' -x '̂ fV' ■ ,■' ' •.: 7 Y> • i -• - - ■ . v ..,' b x b ..b /. , . A i , : ■ i)r ; y ; y x f p F a F a X X b X - ;-. / ; •:. v. r 7 ■ A F F f / vV-/, rvx. ., S •'■ \<r A7.' -• ’/ -I M‘'ip 1 \ \' 1 v: ■ 1 X ; 4 ; ' <■ ■ ...X ,. . 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F ' m F aa ‘ A. ... ,;b ■ - i - A r " v - ' ... 1 •' K t i F(AAi ■' : ' ■ - ■ . t r 0 y~' ' V .\ i y ■■’ iF ' mi ■N €7b,7b x\ ;;b pAA . ’/ :w . a- bx-r v a . !-n . ■ \\-J:.■ ;i - •■ ( 'J’:| >; v { . • '? - A. b ’b A- A. a ,v; - -b y b 'b -b . \ 0 :^ b - x :. bf ' •. , v 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.