Henderson v. United States Brief for the United States
Public Court Documents
October 1, 1949
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Brief Collection, LDF Court Filings. Henderson v. United States Brief for the United States, 1949. 1c4e99f3-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6cac94cb-ed68-467a-9a0d-bea994de1816/henderson-v-united-states-brief-for-the-united-states. Accessed August 19, 2025.
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N o . 25
October Term, 1949
E lmer W . H enderson, appellant
v.
T h e U nited S tates of A merica, I nterstate
Commerce Commission and S outhern R ail-
way Company
ON APPEAL PROM THE UNITED STATES DISTRICT COURT
FOR THE D ISTRIC T OF MARYLAND
BRIEF EOR THE UNITED STATES
% S '
I N D E X
Page
Opinions below_________________________________________ 2
Jurisdiction_________________________________ *-------------- 2
Statute involved------------------------------------------------------------- 2
Question presented---------------------------------- 3
Statement_____________________________________________ 3
Summary of argument----------------------------------------------------- 9
Argument:
The railroad’s dining car regulations, approved by the Inter
state Commerce Commission, are unlawful because they
subject passengers to discrimination and inequality of
treatment, solely on grounds of race or color----------------- 11
I. Passengers traveling on interstate carriers have the
right to receive equal accommodations without
being discriminated-'against because of race or
color------------ --------------------------------------------- 11
II. The regulations are unlawful because they permit
discrimination against individual passengers,
white as well as colored, solely on the basis of the
passenger’s race or color--------------------------------- 19
III. The regulations are unlawful because they compel
passengers to be segregated according to their
color; such enforced racial segregation, having the
sanction of an agency of government, denies col
ored passengers the equality of treatment which
is their right under the law----------------------------- 23
A. Racial segregation under compulsion of law
is not equality_______________________ 24
B. Segregation imports, and is designed to im
port, the inferiority of the Negro race__ 27
C. The “separate but equal” doctrine does not
control the issues before the Court in this
case, but that doctrine, if it be deemed
applicable here, should be reexamined and
discarded______________ 35-
D. The harm to the public interest which has
resulted from enforced racial segregation
argues against its extension to the field of
interstate transportation--------------------- 49
1. Effect on Negroes_______________ 49
2. Effect on whites________________ 55
3. Effect on the nation_____________ 56-
<i)
859005—49--- 1
Page
Conclusion____________________________________________ 66
Appendix: Railroad’s dining car regulations________________ 67
CITATIONS
Cases:
Anderson v. Pantages Theatre Co., 114 Wash. 24_________ 35
Appalachian Coals, Inc. v. United States, 288 U. S. 344___ 39
Barnett v. Texas & Pacific Ry. Co., 263 I. C. C. 171_____ 19
Brown v. Atlantic Coast Line R. R. Co., 256 I. C. C. 681 __ 19
Brown v. Southern Ry. Co., 269 I. C. C. 711____________ 13
Buchanan v. Warley, 245 U. S. 60__________________ 14, 20, 46
Chicago, Rock Island & Pac. Ry. Co. v, Allison, 120 Ark. 54_ 42
Chiles v. Chesapeake & Ohio Rwy. Co., 218 U. S. 71______36, 37
Civil Rights Cases, 109 TJ. S. 3________________________ 48
Collins v. Oklahoma State Hospital, 76 Okla. 229_________ 42
Currin v. Wallace, 306 U. S. 1________________________ 15
Detroit Bank v. United States, 317 U. S. 329____________ 15
Edwards v. Nashville, C. & St. L. Ry. Co., 12 I. C. C. 247. 13
Ferguson v. Gies, 82 Mich. 358_______________________ 27, 35
Flood v. News & Courier Co., 71 S. C. 112______________ 42
Hall v. De Cuir, 95 IT. S. 485______________________ 13, 36, 37
Harmon v. Tyler, 273 U. S. 668_______________________ 24
Hirabayashi v. United States, 320 U. S. 81______________ 15, 16
Hurd v. Hodge, 334 U. S. 24_________________________ 14, 29
Interstate Commerce Commission v. Mechling, 330 U. S. 567_ 2
Jackson v. Seaboard A ir Line Ry. Co., 269 I. C. C. 399___ 19
Jones v. Kehrlein, 49 Cal. App. 646___________________ 35
Joyner v. Moore-Wiggins Co., 136 N. Y. S. 578, affirmed,
211 N. Y. 522____________________________________ 35
Korematsu v. United States, 323 IT. S. 214______________ 16
LeFlore & Crishon v. Gulf, Mobile & Ohio R. R. Co., 262
I. C. C. 403_____________________________________ 19
Louisville & Nashville R. R. Co. v. Ritchel, 148 Ky. 701__ 42
McCabe v. Atchison, T. & S. F. Ry. Co., 235 IT. S. 151___ 13,
19-20, 48
Mays v. Southern Ry. Co., 268 I. C. C. 352_____________ 19
Missouri ex rel Gaines v. Canada, 305 IT. S. 337_________ 17, 20
Missouri, Kansas & Texas Ry. Co. v. Ball, 25 Tex. Civ. App.
500_____________________________________________ 42
Mitchell v. United States, 313 IT. S. 80_________________ 2, 7,
12, 13, 14, 18, 20-21, 22, 23, 31, 35, 37, 38
Morgan v. Virginia, 328 IT. S. 373______________ 13, 14, 32, 36
Nixon v. Condon, 286 U. S. 73_______________________ 17
Nixon v. Herndon, 273 U. S. 536_____________________ 17
Perez v. Lippold, 198 P. 2d 17 (S. C. Calif.)____________ 20
Perez v. Sharp, 32 Calif. 2d 711______________________ 45
l i
m
Plessy v. Ferguson, 163 U. S. 537_____________________ 10,
12, 15, 25, 28, 38, 39, 40, 41, 42, 43, 63, 65
Railroad Co. v. Brown, 17 Wall. 445___________________ 35
Shelley v. Kraemer, 334 U. S. 1_________________ 14, 20, 22, 29
Sims v. Rives, 84 F. 2d 871, certiorari denied, 298 U. S. 682^ 15
Sipuel v. Board of Regents, 332 U. S. 631_______________ 17
Slaughter-House Cases, 16 Wall. 36____________________ 47
Smith v. Allwright, 321 U. S. 649_____________________ 17
Stamps v. Chicago, Rock Island & Pacific Ry. Co., 253
I. C. C. 557_____________________________________ 19
Stamps & Powell v. Louisville & Nashville R. R. Co., 269
I. C. C. 789______________________________________ 19
Standard Sanitary Manufacturing Co. v. United States,
226 U. S. 20_____________________________________ 13
Steele v. Louisville & Nashville R. R. Co., 323 U. S. 192__ 14
Steward Machine Co. v. Davis, 301 IT. S. 548____________ 15
Strauder v. West Virginia, 100 IT. S. 303______ 14,16-17, 46-47
Stultz v. Cousins, 242 Fed. 794_______________________ 42
Takahashi v. Fish and Came Commission, 334 U. S. 410___ 14, 17
Truax v. Raich, 239 IT. S. 33_________________________ 17
United States v. Interstate Commerce Commission, 337 U. S.
426_____________________________________________ 7, 37
United States v. Yount, 267 Fed. 861__________________ 15
Wolf v. Colorado, 338 IT. S. 25________________________ 16, 65
Wolfe v. Georgia Railway & Electric Co., 2 Ga. App. 499__ 42
Yick Wo v. Hopkins, 118 IT. S. 356____________________ 14, 17
Constitution, Statutes and United Nations Charter:
Fifth Amendent____________________________________ 15
Fourteenth Amendment__________________________ 39, 42, 49
Civil Rights Act of 1866, 14 Stat. 27__________________ 47
Civil Rights Act of 1875, 18 Stat. 335_________________ 47, 48
Interstate Commerce Act, 24 Stat. 379, as amended, 49
Stat. 543, 54 Stat. 902, 49 U. S. C. 1 et seq.:
Sec. 1 (1)._______ _____________________________ 3
Sec. 3 (1)___________ __________ ____ 2, 10, 12, 21, 31, 39
Charter of the United Nations, 59 Stat. 1031___________ 62
Civil Rights Law of New York, Sec. 40________________ 13
Miscellaneous:
Berger, The Supreme Court and Group Discrimination Since
1937, 49 Col. L. Rev. 201__________________________ 45
The Bolshevik (U. S. S. R.) No. 15, 1948 (Frantsov, Na
tionalism— The Tool of Imperialist Reaction)__________ 61
Bond, Education of the Negro and the American Social Order_ 41
Brophy, The Luxury of Anti-Negro Prejudice, 9 Public
Opinion Quarterly 456____________________________ 57
Oases—Continued Psg*
IV
Bunche, Education in Black and White, 5 Journal of Negro
Education 351____________________________________ 41
Cong. Globe, 39th Cong., 1st Sess_____________________ 47
Cong. Globe, 42d Cong., 2d Sess______________________ 48
2 Cong. Rec. 4116, 4143-4145, 4167-4169, 4171-4174____ 48
3 Cong. Rec. 1010__________________________________ 48
Cooper, The Frustrations of Being a Member of a Minority
Group: What Does It Do to the Individual and to His
Relationships With Other Peoples'!, 29 Mental Hygiene
189------------------------------------------------------- 34,50-51,53-54
Department of State Publication 2497 (Conference Series 85). 63
Deutscher & Chein, The Psychological Effect of Enforced Seg
regation: A Survey of Social Science Opinion, 26 Journal
of Psychology 259________________________________ 50, 55
Dollard, Caste and Class in a Southern Town_ 27, 29, 41, 51-52, 56
Drake & Cayton, Black Metropolis____________________ 43
Flack, Adoption of the Fourteenth Amendment___________ 47, 48
Fraenkel, Our Civil Liberties______________________ 27, 35, 41
Frazier, Psychological Factors in Negro Health, Journal of
Social Forces, vol. 3_______________________________ 54
Gillmor, Can the Negro Hold His Job!, National Association
for the Advancement of Colored People Bulletin (Sep
tember 1944)____________________________________ 58
Hearings Regarding Communist Infiltration of Minority
Groups, Part I, House Committee on Un-American
Activities, 81st Cong., 1st sess______________________ 59
Heinrich, The Psychology of a Suppressed People_________ 41
Johnson, Negro Americans, What Now!________________ 34
Johnson, Patterns of Negro Segregation___________ 27, 29, 30, 41
Lee & Humphrey, Race Riot__________________________ 57
The Literary Gazette (TJ. S. S. R.) No. 51, 1948, The Tragedy
of Coloured America, by Berezko____________________ 62
McGovney, Racial Residential Segregation by State Court
Enforcement of Restrictive Agreements, Covenants or Con
ditions in Deeds is Unconstitutional, 33 Calif. L. Rev. 5__ 30, 42
McLean, Group Tension, 2 Journal of American Medical
Women’s Association 479__________________________ 53
McLean, Psychodynamic Factors in Racial Relations, The
Annals of the American Academy of Political and Social
Science (March 1946)_____________________________ 54
Mangum, The Legal Status of the Negro________________ 32, 35
Moton, What the Negro Thinks_______________________ 41, 56
Myrdal, An American Dilemma, vols. I and II___ 27, 29, 32, 41,
43, 45, 55
Nelson, The Integration of the Negro into the United States
Navy (Navy Dept., 1948)__________________________ 57
Miscellaneous—Continued pag8
V
Miscellaneous—Continued Page
1948 Report of Progress, New York State Commission
Against Discrimination____________________________ 45
Note, 39 Columbia L. Rev. 986_____________ 27, 33, 35, 42
Note, 4.9 Columbia L. Rev. 629___________________ 27, 42
Note, 34 Cornell Law Quar. 246_____________ ____ 32
Note, 56 Yale L. J. 1059_________________________27, 42
Note, 58 Yale L. J. 472__________________________ 32
Oppenheimer, Non-Discriminatory Hospital Service, 29
Mental Hygiene 195______________________________ 57
Pierson, Negroes in Brazil____________________________ 57
Prudhomme, The Problem, of Suicide in the American Negro,
25 Psychoanalytic Review 187______________________ 51
Sancton, Segregation: The Pattern of a Failure, Survey
Graphic (Jan. 1947)_______________________________ 57
Simon, Causes and Cure of Discrimination, N. Y. Times
May 29, 1949, section 6____________________________ 45
StoufFer, et al., Studies In Social Psychology in World War
I I , The American Soldier, vol. I _______________ 29, 33, 55, 57
Sutherland, Color, Class, and Personality_______________ 41
To Secure These Rights, Report of the President’s Committee
on Civil Rights____________________ 13,28,34,41, 57, 58, 60
United Nations, General Assembly, Ad Hoc Political Com
mittee, Third Session, Part II, Summary Record of the
Fifty-Third and Fifty-Fourth Meetings______________ 61
Ware, The Role of Schools in Education for Racial Under
standing, 13 Journal of Negro Education_____________ 57
Washington, The Future of the American Negro_________ 34
Weaver, The Negro Ghetto____________________________ 56
Yarros, Isolation and Social Conflicts, 27 American Journal
of Sociology_____________________________________ 57
<3{Mrt of t o Winitd
Ootobeb T erm, 1949
No. 25
E lmer W . H enderson, appellant
v.
T h e U nited S tates of A merica, I nterstate
Commerce Commission and S outhern R ail
way Company
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE D ISTRIC T OF MARYLAND
BRIEF FOR THE UNITED STATES
This proceeding was brought by appellant to
set aside an order of the Interstate Commerce
Commission. As required by statute,* 1 the United
States was named as a defendant. The case is
here on appeal from the judgment of the district
court dismissing appellant’s complaint, and the
United States is a nominal appellee. Since the
United States is of the view, however, that the
order of the Interstate Commerce Commission is
invalid, this brief sets forth the grounds upon
which it is submitted that the judgment of the
1 See Section 2322 of Title 28, United States Code.
(l)
2
district court is erroneous and should be reversed.
See Mitchell v. United States, 313 IT. S. 80, 92;
Interstate Commerce Commission v. Mechling,
330 U. S. 567, 574, note 6.
OPINIONS BELOW
The opinion of the specially constituted district
court (R. 248) is reported in 80 F. Supp. 32.
The report of the Interstate Commerce Commis
sion (R. 4) appears at 269 I. C. C. 73. A prior
opinion by the district court in this proceeding
(R. 63) is reported in 63 F. Supp. 906, and a
prior report of the Interstate Commerce Com
mission (R. 184) appears at 258 I. C. C. 413.
JURISDICTION
The judgment of the district court was entered
on October 28, 1948 (R. 265). The petition for
appeal was filed and allowed on November 17,
1948 (R. 266, 269). The jurisdiction of this
Court to review by direct appeal the judgment
entered in this case is conferred by Title 28,
United States Code, Section 1253. Probable ju
risdiction was noted by this Court on March 14,
1949 (R. 278).
STATUTE INVOLVED
Paragraph (1) of Section 3 of the Interstate
Commerce Act as amended, 24 Stat. 380, 54 Stat.
902, 49 U. S. C. 3 (1), provides as follows:
I t shall be unlawful for any common
carrier, subject to the provisions of this
3
p a r t2 to make, give, or cause any undue
or unreasonable preference or advantage to
any particular person, company, firm,
corporation, association, locality, port, port
district, gateway, transit point, region,
district, territory, or any particular de
scription of traffic, in any respect whatso
ever; or to subject any particular person,
company, firm, corporation, association,
locality, port, port district, gateway, transit
point, region, district, territory, or any
particular description of traffic to any un
due or unreasonable prejudice or disad
vantage in any respect whatsoever:
Provided, however, That this paragraph
shall not be construed to apply to discrimi
nation, prejudice, or disadvantage to the
traffic of any other carrier of whatever
description.
QUESTION PRESENTED
Whether the railroad’s dining-car regulations,
approved by the Interstate Commerce Commis
sion, are unlawful because they subject passengers
to discrimination and inequality of treatment,
solely on grounds of race or color.
STATEMENT
On May 17, 1942, appellant, a Negro, was
traveling as a first-class Pullman passenger on
the Southern Railway from Washington, 13. C.,
2 The words “this part” refer to part I of the Act (see 49
Stat. 543), which applies to common carriers by railroad
(49U. S. C .l (1)).
4
to Birmingham, Alabama. He was making this
trip as a field representative of the President’s
Committee on Pair Employment Practices, War
Manpower Commission, to investigate violations
of Executive Order No. 8802 alleged to have
occurred in war industries in the Birmingham
area. (R. 90-91, 97-99.)
When appellant entered the diner on the day
in question shortly after it was opened for service
at 5:30 p. m., white passengers were sitting at
the two end tables which the railroad condition
ally reserved for Negroes but there was at least
one vacant seat at these tables. The dining-car
steward told him that he could not then be served,
and promised to send him word in his Pullman
car if the end tables became vacant. Appellant
came back to the diner at about 7 p. m. and
again at about 7:30 p. m. At both times white
people were eating at the end tables, as well as
throughout the car, and appellant was told that
he could not be served.3 The steward never
notified appellant that the end tables had become
vacant, and at about 9 p. m. the diner was detached
from the train. (R. 90-92,190.)
I t had long been the railroad’s practice not to
serve white and colored passengers at the same
3 Appellant testified that on his first or second trip to the
diner the steward said to him, “I am supposed to ask you if
you will be served in your Pullman seat” (R. 95). Appel
lant declined the suggested tray service at his Pullman seat
(R. 96).
5
time. The latter, “ being in the minority,” were
served either before or after white passengers
had eaten. With the increased passenger traffic
in 1941 due to defense activities, one mealtime
tended to run into the next, “ leaving no time in
which to serve Negro passengers.” To meet this
situation, the railroad installed curtains which
might be drawn from the side of the car to the
aisle so as to separate the two tables nearest the
kitchen from the adjoining tables.4 The rail
road’s regulations, as supplemented in August
1942, provided for drawing the curtains into posi
tion before mealtime and placing “ Reserved”
cards on the two curtained tables.5 I f all other
seats had been taken before any colored passenger
entered the diner, “ the curtain should be pushed
back, cards removed and white passengers served
at those tables. ’ ’6 Any colored passenger appear
ing later was to be advised that he would be served
4 One of the railroad’s waiters testified that this change
permitted colored passengers to be served more readily, “Be
cause before they had the curtains, they didn’t have no way
to ‘Jim Crow’ them off from the whites” (R. 145).
5 The regulations which the railroad adopted in July 1941
and the supplement thereto adopted August 6, 1942, are set
forth in the Appendix, infra, pp. 67-68.
6 The railroad’s vice-president in charge of transportation
and operation testified that these arrangements were made
“so the Jim Crow end would be vacant until every other seat
was taken in the dining car” (R. 167).
6
as soon as the end tables were “ vacated.” 7 (R.
186-187.)
In October, 1942, appellant filed a complaint
with the Interstate Commerce Commission charg
ing that the railroad’s refusal to serve him solely
because of his race discriminated against him in
violation of the Constitution and Section 3 of the
Interstate Commerce Act (R. 80-82). He asked
that the railroad be required to provide in the
future non-discriminatory dining ear service for
Negro passengers, and for an award of damages
(R. 83). The Commission ruled that although
appellant had been subjected to undue prejudice
and disadvantage on the particular trip, the rail
road’s dining car regulations met the require
ments of the Act and that therefore no cease and
desist order should be entered against the rail
road (R. 190-192). On the question of damages,
the Commission ruled that there could be no
award because there had been no proof of
“pecuniary loss” (R. 193-194). I t accordingly
entered an order dismissing appellant’s com
plaint (R. 195).
On suit to set aside the Commission’s order,
the damage issue was eliminated from the cause
by appellant’s concession that the Commission’s de
7 Of course, if additional white passengers were seated at
the end tables as fast as those eating there finished and left,
as was done when appellant was seeking service, this pre
vented Negro passengers from obtaining any dining car
service (E. 75,125).
7
nial of damages was not reviewable (R. 68) .8 As
to the primary issue in the case, the validity of
the railroad’s current dining car regulations, the
court below (sitting as a three-judge district
court) held that the regulations were unduly
prejudicial under the principles laid down in
Mitchell v. United States, 313 U. S. 80, in that the
curtained end tables were only conditionally re
served for Negro passengers whereas all other
seats in the car were unconditionally reserved for
white passengers (R. 74-78). The court there
fore set aside the order entered by the Commis
sion and remanded the case to it for further
proceedings (R. 79-80). 63 F. Supp. 906.
On the reopening of the Commission hearings
the railroad introduced in evidence new dining
car regulations which it had adopted effective
March 1, 1946.9 They provide for reserving ex
clusively for Negro passengers one of the end
tables nearest the kitchen, that on the left side of
the aisle facing the buffet and seating four pas
sengers. The curtain separating this table from
the next one is to remain drawn to the aisle while
meals are being served and a “Reserved” card
8 This concession was made prior to the recent decision in
United States v. Interstate Commerce Commission, 337 U. S.
426, holding that an order of the Commission dismissing a
claim for damages may be reviewed by ordinary one-judge
district courts but not by three-judge courts set up under the
provisions of the Urgent Deficiencies Act of 1913.
9 The regulations are set forth in the Appendix, infra, p.
68.
8
is to be kept on the table except when it is occu
pied. All other tables are reserved exclusively
for white passengers. (R. 198, 223.)
As to the table reserved for colored passengers,
the railroad planned to install, in place of the
curtain, a permanent partition about five feet high
and to convert the space on the opposite side of
the aisle into an office for the steward equipped
with cash register and other needed supplies and
materials (R. 199-201).“ At the time of the hear
ing these changes had been made in only one
diner10 11 but the alterations were to be made in
other cars as they were sent to the shops for re
pairs (R. 201). The railroad, in adopting the
new regulations and in planning structural
changes, had in mind conforming with both the
decision of the district court condemning its prior
regulations and the requirements of state segrega
tion laws (R. 202, 205, 208).
The four seats set aside for Negroes represent
8.33% of the 48 seats in the diner (R. 9).
Studies made by the railroad, covering an 11-day
period and a 10-day period, of the meals served
in its diners on the run between Washington,
D. C., and Atlanta, Georgia, showed that the
meals served to Negroes constituted, for the
10 A similar five-foot partition was to separate his “office”
from the next table ( R. 199).
11 For illustrative photographs, see Exhibits 4-7, E. 224A-
224D.
9
respective periods, 3.06 % and 4.22% of all meals
served (R. 215, 217, 225, 237).
The Commission, with two members dissent
ing, upheld the validity of the amended regu
lations (R. 4-11) and the court below, with one
judge dissenting, dismissed appellant’s suit to
set aside the Commission’s order (R. 248, 261,
265). The court held that neither the Constitu
tion nor Section 3 of the Interstate Commerce Act
prohibited segregated dining car service for
Negroes if, as was the case, the segregated accom
modations were proportionate to the demand for
dining car service by members of the Negro
race (R. 253-260).
SUMMARY OR ARGUMENT
The order of the Interstate Commerce Com
mission approving the dining car regulations
involved in this case is invalid on constitutional
and statutory grounds. Roth the Constitution
and the Interstate Commerce Act give all persons
traveling on interstate carriers the right
to equal treatment, without being subject to
govemmentally-enforced discriminations based
on race or color. Contrary to the holding
below, the obligation of carriers to provide
equality of treatment means equality as be
tween individuals and not as between racial
groups. The regulations are clearly unlawful in
that they permit discrimination against individual
passengers, white as well as colored, in situations.
10
where available accommodations are denied solely
on grounds of race or color. Beyond that, how
ever, the Commission’s order is invalid because it
attempts to place the sanction of law upon a system
of compulsory racial segregation which denies
colored passengers the equality of treatment to
which they are entitled under the Constitution
and the Interstate Commerce Act. This case does
not involve segregation by private individuals.
The decisive factor here is that the segregation
regulations bear the approval of an agency of
government.
Segregation as enforced by the regulations im
ports the inferiority of the hfegro race. Enforced
racial segregation in itself constitutes a denial
of the right to equal treatment. Equal treat
ment means the same treatment. The issues
before the Court in this case are not governed by
the so-called “ separate but equal” doctrine of
Plessy v. Ferguson, 163 U. S. 537, and related
cases. Even assuming, arguendo, that that doc
trine retains some vitality for constitutional pur
poses, it does not establish the validity, under
Section 3 of the Interstate Commerce Act, of
the railroad’s regulations. But if the Court
should conclude that the issues here cannot be
decided without reference to the “ separate but
equal” doctrine, the Government submits that the
legal and factual assumptions upon which
Plessy v. Ferguson was decided have been
11
demonstrated to be erroneous, and that the doc
trine of that case should now be re-examined and
overruled. The notion that separate but equal
facilities satisfy constitutional and statutory pro
hibitions against discrimination is obsolete. The
phrase “ equal rights” means the same rights.
ARGUMENT
THE RAILROAD’S DINING CAR REGULATIONS, APPROVED
BY THE INTERSTATE COMMERCE COMMISSION, ARE
UNLAWFUL BECAUSE THEY SUBJECT PASSENGERS TO
DISCRIMINATION AND INEQUALITY OF TREATMENT,
SOLELY ON GROUNDS OF RACE OR COLOR
I
PASSENGERS TRAVELING ON INTERSTATE CARRIERS HAVE THE
RIGHT TO RECEIVE EQUAL ACCOMMODATIONS WITHOUT BEING
DISCRIMINATED AGAINST BECAUSE OF RACE OR COLOR
The dining car regulations issued by the rail
road and approved by the Interstate Commerce
Commission are invalid, it is submitted, on both
constitutional and statutory grounds. The prem
ise of the Government’s argument is that the
right of all persons to equality of accommodations
while traveling on interstate carriers is a right
which is specifically guaranteed by the Inter
state Commerce Act and which cannot be denied
by the Federal Government, or any of its agencies,
without violating the Fifth Amendment to the
Constitution.
The meaning and requirements of “ equality”
are discussed in a later section of this brief,
859005— 49----2
12
particularly in connection with the so-called
“ separate but equal” doctrine of Plessy v.
Ferguson, 163 U. S. 537, and related cases
arising under the Fourteenth Amendment. In
our view, “ separate but equal” is as much a con
tradiction in terms as “ black but white” : facilities
which are segregated by law, solely on the basis
of race or color, cannot in any real sense be re
garded as equal. The point we desire to stress
at the outset, however, is that the ultimate cri
terion of legality, in assessing the validity of the
regulations presented in this case, is the principle
embodied in both the Interstate Commerce Act
and the Constitution that all persons are entitled
to equality of treatment, without being discrim
inated against because of race or color or other
irrelevant factors.
Section 3 of the Interstate Commerce Act
(quoted in full, supra, pp. 2-3) makes it unlawful
for any common carrier subject to the Act “ to
subject any particular person * * * to any
undue or unreasonable prejudice or disadvantage
in any respect whatsoever”. As was pointed out
in Mitchell v. United States, 313 U. S. 80, 95, this
provision of the Act has consistently been re
garded as imposing a duty upon carriers to pro
vide equality of treatment with respect to
transportation facilities and as forbidding dis
crimination against colored passengers because
of their race; colored persons must be furnished
13
with accommodations equal in comforts and con
veniences to those afforded white passengers
traveling on the same kind of ticket. See
Edwards v. Nashville, G. & St. L. By. Co., 12
I. C. C. 247, 249, quoted in the Mitchell opinion
{ibid.) and other authorities there cited.
Section 3 represents action by Congress in
furtherance of the fundamental constitutional
principle that all men, regardless of their race
or color, are entitled to equal treatment before
the law.12 In McCabe v. Atchison, T. & S. F. By.
12 The laws and customs of the states in which the railroad
operates do not modify or qualify the scope of the prohibi
tions of Section 3 of the Interstate Commerce Act. This
Court so held as to state law imposing requirements respect
ing intrastate transportation inconsistent with those of Sec
tion 3 (Mitchell case, supra, at pp. 91-92), and, a fortiori,
the requirements of the Act do not vary with the customs
of the area in which the carrier operates. This is so, not pri
marily because of the need for prescribing a uniform na
tional rule (see Morgan v. Virginia, 328 U. S. 373; Hall v.
DeOuir, 95 U. S. 485), but because Section 3 applies equally
to every carrier subject to part I of the Act and therefore
may not be given one meaning in one community and a dif
ferent one in another. I f the segregation enforced in the
railroad’s dining cars does not violate Section 3 in a state
which requires segregation in intrastate transportation, it
also would not violate that section when enforced by a carrier
operating in a state where the laws prohibit racial separation
on public carriers. See Civil Eights Law of New York, Sec.
40, and compare Brown v. Southern By. Go., 269 I. C. C.
711, 722; To Secure These Rights, Eeport of the President’s
Committee on Civil Eights, p. 78.
As in the case of other general prohibitions applicable to
interstate commerce, “The law is its own measure of right
and wrong.” Standard Sanitary Manufaetunng Go. v.
14
Co., 235 U. S. 151, 161, this Court recognized
“ the constitutional right” of individuals to “ sub
stantial equality of treatment of persons traveling
under like conditions.” And in the compara
tively recent Mitchell case, Mr. Chief Justice
Hughes’ opinion for the Court stated: “ The
denial to appellant of equality of accommodations
because of his race would be an invasion of a
fundamental individual right which is guaranteed
against state action by the Fourteenth Amend
ment”. (313 IT. S. 80, 94.)
These holdings in the field of transportation
are merely illustrative of the basic constitutional
doctrine which condemns racial discriminations
having the sanction of law or the support of an
agency of government. See, e. g., Shelley v.
Kraemer, 334 IT. S. 1; Hurd v. Hodge, 334 IT. S.
24; Takahashi v. Fish and Game Commission,
334 IT. S. 410; Steele v. Louisville Nashville
Railroad Go., 323 IT. S. 192; Buchanan v. Warley,
245 IT. S. 60; Yick Wo v. Hopkins, 118 IT. S. 356;
Strauder v. West Virginia, 100 IT. S. 303. These
decisions, as well as others too familiar to re
quire citation here, have given concrete applica
tion to the principle of constitutional law elo
quently expressed by Mr. Justice Harlan: “ Our
United States, 226 U. S. 20, 49. Though Congress has power
to “devise a national policy with due regard to varying in
terests of different regions” (Mr. Justice Frankfurter con
curring in Morgan v. Virginia, 328 U. S. 3f3, 389), it has
not, in Section 3, done so.
15
Constitution is color-blind, and neither knows nor
tolerates classes among citizens.” Plessy v.
Ferguson, 163 U. S. 537, 559 (dissent).
Racial discriminations effected by action of the
Federal Government, or any agency thereof, are
prohibited by the due process clause of the Fifth
Amendment. To be sure, that Amendment con
tains no equal protection clause. But the Court
has in numerous cases indicated that a federal
discrimination may be so arbitrary and injurious
in character as to violate the due process clause
of the Fifth Amendment. Rirabayashi v. United
States, 320 IT. S. 81, 100; Detroit Bank v. United
States, 317 IT. S. 329, 338; Gurrin v. Wallace,
306 IT. S. 1, 13; Steward Machine Co. v. Davis,
301 IT. S. 548, 585. And see Sims v. Fives,
84 F. 2d 871, 878 ( C. A. D. C.), certiorari de
nied, 298 IT. S. 682; United States v. Yount, 267
Fed. 861, 863 (W. D. Pa.). Mr. Justice Murphy’s
concurring opinion in Rirabayashi observed:
“We have consistently held that attempts to
apply regulatory action to particular groups
solely on the basis of racial distinction or classi
fication is not in accordance with due process of
law as prescribed by the Fifth and Fourteenth
Amendments. [Citations]” 320 IT. S. at 111.
In its most recent formulation of the require
ments of due process of law, the Court has de
scribed it as “ the compendious expression for all
those rights which the courts must enforce be
16
cause they are basic to our free society.” Wolf
v. Colorado, 338 U. S. 25, 27.
There can be no doubt that the right to equal
treatment before the law is basic to the free,
democratic way of life established and protected
by the Constitution of the United States. In
Hirahayashi v. United States, 320 U. S. 81, 100,
Mr. Chief Justice Stone wrote for the Court: “ Dis
tinctions 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.” And in Korematsu
v. mdtecl States, 323 U. S. 214, 216, the Court’s
approach to racial restrictions was described as
follows: u * * * all legal restrictions which
curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all
such restrictions are unconstitutional. I t is to
say that courts must subject them to the most rigid
scrutiny. Pressing public necessity may some
times justify the existence of such restrictions;
racial antagonism never can.”
In Strauder v. West Virginia, 100 U. S. 303,
306-307, the Court said:
I t [the Fourteenth Amendment] was de
signed to assure to the colored race the en
joyment of all the civil rights that under
the law are enjoyed by white persons, and
to give to that race the protection of the
general government, in that enjoyment,
whenever it should be denied by the
States. * * *
17
* * * Wliat is this but declaring that
the law in the States shall be the same for
the black as for the white; that all persons,
whether colored or white, shall stand equal
before the laws of the States, and, in re
gard to the colored race, for whose protec
tion the amendment was primarily de
signed, that no discrimination shall be made
against them by law because of their color ?
The Strauder case condemned the systematic ex
clusion of colored persons from juries. Similarly,
the right to qualify as a voter in primary or
general elections may not be denied because of
race or color. Nixon v. Herndon, 273 U. S. 536;
Nixon v. Condon, 286 U. S. 73; Smith v. All-
wright, 321 U. S. 649. The Court has held that
the Constitution prohibits denial to a j>erson, be
cause of his race or ancestry, of the right to pur
sue his accustomed calling. Takahashi v. Fish
and Game Commission, 334 IT. S. 410; Truax v.
Raich, 239 U. S. 33; Yick Wo v. Hopkins, 118
IT. S. 356. And all citizens, regardless of their
color, are entitled to equality in the enjoyment
of public educational facilities. Missouri ex rel.
Gaines v. Canada, 305 IT. S. 337; Sipuel v. Board
of Regents, 332 IT. S. 631.
Clearly, therefore, appellant has the right, both
under the Constitution and the Interstate Com
merce Act, to enjoy equality of accommodations
as a passenger on an interstate carrier, and to be
free from governmentally-enforced discrimination
18
against him because he is a Negro. The question
that remains for consideration is whether the
dining car regulations approved by the Inter
state Commerce Commission deprive him of that
right.13
13 Certain questions collateral to that of illegal discrimina
tion are set at rest by the decision in Mitchell v. United
States, 313 U. S. 80. Although these questions appear to be
undisputed, the following brief reference to them may con
tribute to a more complete presentation of the case.
(1) Appellant has standing to bring this suit. The nega
tive form of the Commission’s order is “not controlling” and
appellant is “an aggrieved party.” I t was not necessary for
him to show, as a basis for his grievance against the regula
tions governing future dining car service, that he intended
again to be a passenger on the railroad. I t is sufficient that
he is an American citizen free to travel and, as such, entitled
to have “facilities for his journey without any discrimina
tion against him which the Interstate Commerce Act for
bids.” Mitchell case, pp. 92-93.
(2) The question of discrimination presented here does
not call for exercise of “administrative or expert judgment”
on a practical or technical problem of transportation as to
which the Commission’s ruling, if not arbitrary or lacking
evidentiary support, might be conclusive. The functions of
the Interstate Commerce Commission are obviously not such
as to endow it with expertise in dealing with questions of
racial discrimination. The application of the statute to the
facts of this case presents a question of law as to which the
courts are not bound to defer to the administrative agency’s
determination. Mitchell case, p. 97.
(3) The prohibitions of Section 3 apply to facilities for
passengers, including dining car accommodations, and they
bar discriminations as to such accommodations based on the
race or color of the passenger. Mitchell case, pp. 94-95. (It
may be noted that the Interstate Commerce Commission has
uniformly recognized that these principles apply to dining
car service but has, with equal uniformity, found no basis for
19
I I
THE REGULATIONS ARE UNLAWFUL BECAUSE TH ET PERMIT DIS
CRIMINATION AGAINST INDIVIDUAL PASSENGERS, W HITE AS
WELL AS COLORED, SOLELY ON THE BASIS OF THE PASSENGER’S
RACE OR COLOR
The court below upheld the validity of the rail
road’s dining car regulations upon the ground
that the law is satisfied if ‘‘separate but equal”
accommodations are provided for colored pas
sengers, and that such accommodations are
“ equal” if they are proportionate to the average
demand therefor by members of the Negro race
(R. 260). We deal later with the court’s “ sep
arate but equal’ ’ ruling {infra, pp. 23-49). In this
section of the brief, we challenge the ruling that
the constitutional and statutory obligation to
treat all passengers alike requires equality of
treatment, not as between individuals, but merely
as between racial groups.
In McCabe v. Atchison, T. S. F. By. Go., 235
U. S. 151, where a state law authorizing railroads
to provide accommodations for white persons
without providing similar accommodations for
an award of damages or for entry of an order requiring a
change in the railroad’s practice. Stamps \. Chicago, Rock
Island & Pacific Ry. Co., 253 I. C. C. 557, 560; Brown v. A t
lantic Coast Line R. R. Co., 256 I. C. C. 681, 695; LeFlore <&
Crishon v. Gulf, Mobile c& Ohio R. R. Co., 262 I. C. C. 403,
407; Barnett v. Texas <6 Pacific Ry. Co., 263 I. C. C. 171;
Mays v. Southern Ry. Co., 268 I. C. C. 352, 362; Jackson v.
Seaboard Air Line Ry. Co., 269 I. C. C. 399, 403; Stamps &
Powell v. Louisville & Nashville R. R. Co., 269 I. C. C. 789,
795-796.)
20
Negroes was attacked as violating the equal pro
tection clause of the Fourteenth Amendment, the
Court said (p. 161) that “ the essence of the con
stitutional right is that it is a personal one.” 14
The Court further said (pp. 161-162) :
I t is the individual who is entitled to the
equal protection of the laws, and if he is
denied by a common carrier * * * a
facility or convenience in the course of his
journey which under substantially the same
circumstances is furnished to another
traveler, he may properly complain that
his constitutional privilege has been
invaded.
Mitchell v. United States, 313 U. S. 80, held
that the right to equal treatment conferred by
Section 3 of the Interstate Commerce Act is,
like the right to equal protection of the laws
guaranteed by the Fourteenth Amendment, per
sonal to the individual. The Court held (p. 97)
that equality of treatment is a right “ specifically
safeguarded” by Section 3 and that the “ com
paratively little colored traffic” cannot justify
denial of this “ fundamental right” to even a
single colored passenger. “While the supply of
particular facilities may be conditioned upon
14 The principle thus enunciated has subsequently been
vigorously reaffirmed. Missouri ex rel. Gaines v. Canada,
305 U. S. 337, 350-351; Shelley v. Kraemer, 334 U. S. 1, 22.
See also Buchanan v. Warley, 245 U. S. 60, 80: Perez v. Lip-
pold, 198 P. 2d 17,20 (Sup. Ct. Calif.).
21
there being a reasonable demand therefor, if
facilities are provided, substantial equality of
treatment of persons traveling under like condi
tions cannot be refused” {ibid.). This is because,,
as was held in the McCabe case with reference to
the Fourteenth Amendment, it is the individual,
“ not merely a group of individuals, or a body
of persons according to their numbers,” who is
entitled to equality {ibid.).
Section 3, as was noted in the Mitchell case
(p. 97), makes it unlawful to subject “ any par
ticular person” to unreasonable discrimination.
Its language thus expressly indicates that its
thrust is for the protection of individuals.
The test to be applied to the railroad’s regu
lations is, therefore, whether they provide for
service which is nondiscriminatory as between
individual passengers, without regard to their
race or color. The regulations clearly fail to
meet this test. When a Negro passenger seeks
service at a time when the table reserved for
members of his race is fully occupied but there
are vacant seats elsewhere in the dining car,
service which is available to other passengers is
denied to him solely because of his race. Simi
larly, if a white passenger seeks service when
there are vacancies only at the table reserved
for colored passengers, service available to other
passengers is withheld from him solely because
of his color.
22
The fact that the discriminations may run
equally against white as well as colored passengers
does not give them sanction. The individual is
entitled under the law to equality of protection,
not equality of discrimination. Infringement of
the rights of one individual is not condoned
because the rights of another individual of a
different race are similarly infringed. Concern
ing the rights created by the first section of the
Fourteenth Amendment, this Court said in
Shelley v. Kraemer, 334 U. S. 1, 22:
The rights established are personal rights.
I t is, therefore, no answer to these peti
tioners 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 im
position of inequalities.
I t is no defense that the unequal treatment
permitted by the regulations may be infrequent
or that it may entail delay in service rather than
denial of all service. Under the carrier’s prac
tice involved in the Mitchell case, colored passen
gers, “ if sufficiently diligent and forehanded,”
could obtain equal accommodations,15 but the
practice was nevertheless held to subject them
15 Although a Negro with a first-class ticket was denied an
ordinary parlor car seat, he was given a drawing room com
partment without extra charge provided one was available.
See 313 U. S. 80, at pp. 90,91.
23
to inequality and discrimination forbidden by
Section 3. See 313 U. S. 80, at p. 96. Further
more, as the dissenting opinion of Judge Soper
in the court below said (R. 262), any distinction
between the situation presented here and that
in the Mitchell case “ is one of degree and not
of principle, for in both cases the arrangement is
designed to take care of the demands of the
race rather than those of the individual citizens.”
I l l
THE REGULATIONS ARE UNLAWFUL BECAUSE THEY COMPEL PAS
SENGERS TO BE SEGREGATED ACCORDING TO THEIR COLOR; SUCH
ENFORCED RACIAL SEGREGATION, HAVING THE SANCTION OP AN
AGENCY OF GOVERNMENT, DENI1S COLORED PASSENGERS THE
EQUALITY OF TREATMENT W H IC H IS THEIR RIGHT UNDER THE
LAW
In Point II, supra, we have argued that the
dining ear regulations here involved are unlaw
ful because they permit discrimination against an
individual passenger, whether white or colored,
in a situation where an available seat is denied
him simply because it is reserved for a person
of another race. We agree with Judge Soper,
dissenting below, that the regulations as applied
in such a situation clearly contravene the require
ments of Section 3 of the Interstate Commerce
Act. But a fundamental infirmity inheres in
these regulations which goes much deeper and
requires their invalidation for all purposes. The
regulations, which carry the endorsement of an
agency of government, compel colored passengers
24
to be segregated from other passengers solely
because of their color. Such legally-enforced
racial segregation in and of itself constitutes a
discrimination and inequality of treatment pro
hibited by the Constitution and the Interstate
Commerce Act.
A. Racial segregation under compulsion of law is not
equality
Since these regulations bear the imprimatur of
the Interstate Commerce Commission, they in
effect lay down a rule of law that when a man
travels on an interstate railroad, the color of his
skin shall dictate where and with whom he is
permitted to dine, no matter what his own desires
may be. This case does not involve segregation
by private individuals. These regulations estab
lish a system of racial segregation enforced by
and having the sanction of law. Cf. Harmon v.
Tyler, 273 U. S. 668. The regulations do not
merely permit voluntary segregation in the sense
that they allow a passenger, if his prejudices so
require, to refuse to eat at the same table or even
in the same car with a passenger of another
color. They go much further: a white passenger
who has no prejudice against Negroes, or indeed,
one who affirmatively desires the company of a
colored person or persons, is forbidden by the
regulations to have company of his own choice.
The regulations compel such a passenger to yield
to the prejudices of others. Under the regula
25
tions here involved, persons traveling together,
if they are of different color, cannot eat together
regardless of their personal desires. Even if he
so wishes, a white passenger is forbidden to sit
at a colored table. In other words, the regula
tions do not merely carry out the prejudices of
some members of the community; they compel
everybody else to abide by such prejudices.
We do not argue that individuals do not, or
should not, have a legal privilege to exercise a
personal preference against eating at the same
table, or in the same section of the dining car,
with Negroes. If the regulations are declared
unlawful, that individual privilege would remain
unimpaired. A passenger who prefers to forego
or postpone a meal rather than take it while a
person of another color is being served in the
same car would be free to do so. A passenger who
objects to dining at the same table with a person
of another color would be free to decline a seat
proffered at a table where such a person is being
served. The decisive point here, however, is that
it is one thing to permit an individual to act on
his personal prejudices; it is something entirely
different for the law to force such prejudices upon
everyone else.
In Plessy v. Ferguson, 163 U. S. 537, the first
case holding that segregation does not violate the
equal protection clause of the Fourteenth Amend
ment, the Court expressed the view that the
26
alternative to segregation is “ an enforced com
mingling” of the white and colored races. This
observation, as we shall argue in a later section of
this brief, was irrelevant to the constitutional
issue before the Court. In determining the va
lidity of legislation alleged to involve an invidious
racial discrimination, the inquiry is not whether
the enactment will eradicate racial prejudice or
solve problems of racial antagonism; the issue is
simply whether it enforces, supports, or other
wise contributes to the denial of a constitution
ally-protected right. But, in any event, the
Court’s dictum rests on an obviously false prem
ise. I f “ commingling” between white and
colored persons comes about as a consequence of
nullifying segregation ordinances or regulations,
such commingling is not “ enforced” by the law.
I t is the result of voluntary conduct of the indi
viduals concerned, acting not under the coercion
of the law but in response to their own
desires.
The alternative to compulsory segregation,
therefore, is not an “ enforced” commingling of
the races. With non-segregated service, the indi
vidual passenger is free to avoid any “ com
mingling” which he considers objectionable.
Some individuals may object to eating in the
same car with a Negro. Others will “ draw the
line” at eating at the same table with a Negro.
Still others will feel that it makes no difference
what the color of their fellow-passengers may be.
2 7
Whatever the individuaTs personal preferences
or code of social behavior, no departure from it
is “ enforced” by anything except his own will.
I t must be remembered, of course, that one who
goes to a public place or rides in a public conveyance
necessarily surrenders some freedom of choice as
to those with whom he will mingle. What was
said in Ferguson v. Gies, 82 Mich. 358, 367-368,
deserves repetition:
The man who goes either by himself or
with his family to a public place must ex
pect to meet and mingle with all classes of
people. He cannot ask, to suit his caprice
or prejudice or social views, that this or
that man shall be excluded because he does
not wish to associate with them. He may
draw his social line as closely as he chooses
at home, or in other private places, but he
camiot in a public place carry the privacy
of his home with him, or ask that people
not as good or great as he is shall step
aside when he appears.
B. Segregation imports, and is designed to import, the
inferiority of the Negro race
Segregation of Negroes, as practiced in this
country, is universally understood as imposing
on them a badge of inferiority.16 I t “ brands the
16 Myrdal, An American Dilemma, vol. I, pp. 615, 640;
Johnson, Patterns of Negro Segregation, p. 3; Fraenkel, Our
Civil Liberties, p. 2 0 1 ; Dollard, Caste and Class in a South
ern Town, pp. 349-351; Note, 56 Yale L. J. 1059, 1060; Note,
49 Columbia L. Eev. 629, 634; Note, 39 Columbia L. Eev.
986,1003.
859005— 49----3
28
Negro with, the mark of inferiority and asserts
that he is not fit to associate with white people”.17
Forbidding this group of American citizens “ to
associate with other citizens in the ordinary
course of daily living creates inequality by im
posing a caste status on the minority group.” 18
More than fifty years of subsequent history con
firm and give new emphasis to the views expressed
by Mr. Justice Harlan in his dissent in Plessy
v. Ferguson, 163 IT. S. 537, 562. He declared that
the “ arbitrary separation” of members of the
Negro race when traveling in a public convey
ance “ is a badge of servitude.” He further said
(p. 560) :
What can more certainly arouse race hate,
what more certainly create and perpetuate
a feeling of distrust between these races,
than state enactments, which, in fact, pro
ceed on the ground that colored citizens
are so inferior and degraded that they
cannot be allowed to sit in public coaches
occupied by white citizens? That, as all
will admit, is the real meaning of such
legislation as was enacted in Louisiana.
That the type of segregation imposed by the
railroad’s regulations is humiliating to those sub
jected to it is so obvious as scarcely to need
documentation. Myrdal has noted that “ the Jim
17 To Secure These Rights, Report of the President’s Com
mittee on Civil Rights, 79.
18/ J , 82.
29
Crow car is resented more bitterly among Negroes
than most other forms of segregation. ” 19 J ohnson
has described the trend among Negroes towards
travel by automobile which “ is considered worth
the extra cost” because of “ the emotional satis
faction derived from escaping humiliating treat
ment.” 20 Dollard has indicated that the Negro
understands this type of segregation as marking
him off as inferior, “ of not being worthy to par
ticipate fully in American social life.” 21 See also
appellant’s brief in the instant case, Appendix,
pp. 94—106.
One who is compelled to live in a ghetto, because
of his color or creed, does not enjoy “ equality”,
no matter how luxurious his abode. Cf. Shelley
v. Kraemer, 334 U. S. 1, and Hurd v. Hodge, 334
U. S. 24. The same principle applies here. A
colored passenger who is set apart in a corner
by himself is in no real sense being treated as an
equal. The curtain or partition which fences
Negroes off from all other diners exposes, naked
and unadorned, the caste system which segre
gation manifests and fosters. A Negro can
obtain service only by accepting or appearing to
accept, under the very eyes of his fellow passen
gers, white and colored, the caste status which the
19 Myrdal, An American Dilemma, vol. 1 , p. 635.
20 Johnson, Patterns of Negro Segregation, 270.
21 Dollard, Caste and Class in a Southern Toion, 350. See
also Stouffer, et al., Studies in Social' Psychology in World
War II, The American Soldier, vol. I, p. 561.
30
segregation signifies and is intended to signify.
The effect of the railroad’s regulations and
practice emphasizes that their single purpose is
to foster maintenance of a caste system. One
side of the segregated table adjoins the side of
the car. Of the other three sides, the curtain
shuts off only one. The table is exposed to the
view of those passing in the aisle, to those sitting
at the table immediately across the aisle,22 and
to some extent to those sitting at other tables.
One sociologist has commented that the table
is “ exposed only enough to indicate the intent
to segregate.” 23 Another commentator has de
scribed this type of separation as “merely a sym
bolic assertion of social superiority, a ‘ceremonial’
separation.” 24
Concerning the five-foot high wooden partition
which the railroad proposed to erect as a substitute
for the curtain, the remarks of Judge Soper in
22 When the change to a wooden partition is made, the
space across the aisle will be occupied by the dining car
steward rather than by white passengers (supra, p. 8).
23 Johnson, Patterns of Negro Segregation, p. 321.
24 McGovney, Racial Residential Segregation by State
Court Enforcement of Restrictive Agreements, Covenants
or Conditions in Deeds Is Unconstitutional, 33 Calif. L. Rev.
5,27 at n. 91.
The Railroad’s dining car steward testified that the cur
tain hangs on hooks on a rod and if it is not properly hooked
up and gets only half drawn he “has done the technical
thing” and will not take the trouble to draw the curtain fuliv
(R. 160).
31
the course of the argument in the court below
are pertinent and illuminating (R. 38) :
Why do you put up these absurd parti
tions? They don’t conceal anything; they
simply call attention of the white passen
gers to the fact that the colored person
is dining there. I t seems to me that it is
just unnecessary humiliation.
Counsel for the railroad answered the question
as to the reason for the partition by saying:
“ Simply to separate the two races.” (R. 39.) He
added that “ it satisfies the white people, and it
certainly is much less offensive to the negroes”
(ibid., italics supplied).
Section 3 of the Interstate Commerce Act for
bids “ undue or unreasonable prejudice or dis
advantage in any respect whatsoever.” The pro
hibition applies to “ any discriminatory action or
practice of interstate carriers” which Congress
had “authority to reach.” Mitchell case, p. 94.
Under the broad and inclusive language of the
section, the “ substantial equality of treatment”
which it requires (id., p. 97) is plainly not con
fined to the physical elements of dining car
service, such as food, tableware, etc. Manifestly,
colored passengers would be discriminated against
if the railroad’s rules required its waiters to say,
when serving them: “Don’t think, because we
have to serve you, that wTe believe you’re as good
as whites.” The wTrong would be compounded if
a loud-speaking device carried these words to
32
every diner in the car. But in substance,
although the form may have been less offensive,
these were the conditions under which the rail
road furnished dining car service to colored
passengers.
If ex-convicts were given dining car service
only at a table barred off from others, but open
to view, and carrying a card, “ Reserved for Ex-
Convicts, ’ ’ we have no doubt that the courts would
be quick to recognize the gross inequality of treat
ment. To make this analogy fit the facts of the
present case, the traveling public would have
to be informed that not only were ex-convicts
thus segregated but also all descendants of ex
convicts, to the third or fourth generation.23 25
25 For the varying statutory and judicial definitions of
“Negro” or “colored,” see Morgan v. Virginia, 328 U. S. 373,
382-383; Mangum, The Legal Status of the Negro, ch. I ;
Note, 34 Cornell Law Quar. 246, 247-251; Note, 58 Yale L. J.
472, 480-481.
| “Without any doubt there is also in the white man’s con
cept of the Negro ‘race’ an irrational element which cannot
; be grasped in terms of either biological or cultural differ-
I ences. I t is like the concept ‘unclean’ in primitive religion,
j I t is invoked by the metaphor ‘blood’ when describing an
cestry. * * * The one who has got the smallest drop
of ‘Negro blood’ is as one who is smitten by a hideous dis-
I ease. I t does not help if he is good and honest, educated
and intelligent, a good worker, an excellent citizen and an
agreeable fellow. Inside him are hidden some unknown and
dangerous potentialities, something which will sooner or later
crop up. This totally irrational, actually magical, belief is
implied in the system of specific taboos * * Myrdal,
An American Dilemma, vol. 1, p. 100.
33
The colored passenger, paying the same price
for his meal as other passengers, does not receive
the same thing in return. True, he receives the
same food, but the condition which is attached
to receiving it is that he submit to having his mind
bombarded with the message that he and all mem
bers of his race are classified as inferior, as con
stituting a lower social caste.26 This message of
humiliation comes, not as a single voice, but with
all the reverberations of the entire pattern of
segregation and discrimination of which it is a
part. And that is not a matter of small con
sequence. The segregation which isolates the
Negro from others in the community and marks
him as ostracized, a kind of “untouchable,”
gravely affects his personality and causes serious
psychological difficulties and disturbances (infra,
pp. 50-54).
The Negro is plagued by the concept—evidence
of which he constantly sees around him in his
daily life—that he and his people are regarded
as inferior.27 I t remains one of the most devas-
26 “ppe fact that accommodations are identical in physical
comfort does not make them really equal, since there is a
social stigma attached to the position of the minority. To
say that, since neither group can use the facilities reserved
for the other, they are in an equal position is unrealistic;
members of the minority know only too well the reasons for
the segregation and are humiliated by it.” Note, 39 Col.
L. Eev. 986, 1003.
27 “rjTjie WOrd ‘segregation’ itself has come to represent to
Negroes a crucial symbol of white attitudes of superiority.”
StoufEer, et al., Studies in Social Psychology in World War
II, The American Soldier, vol. I, p. 566.
34
fating frustrations of his life. Under its impact,
he does not dare to be a person of his own dis
tinct uniqueness and individuality.28 The per
sistent effort of Negro leaders to develop attitudes
aimed at maintaining the human dignity of the
Negro tells its own story.29
I t is bad enough for the Negro to have to en
dure the insults of individuals who look upon
him as inferior. I t is far worse to have to sub
mit to a formalized or institutionalized enforce
ment of this concept, particularly when, as in
this case, it carries the sanction of an agency
of government and thus appears to have the seal
of approval of the community at large. Such
enforced racial segregation in and of itself consti
tutes inequality.30 In this situation the phrase
28 Cooper, The Frustrations of Being a Member of a
Minority Group; What Does I t Do To The Individual And
To His Relationships With Other People?, 29 Mental
Hygiene 189, 190-191
29 “The pledge to myself which I have endeavored to keep
through the greater part of my life is :
“I will not allow one prejudiced person or one million
or one hundred million to blight my life. I will not let
prejudice or any of its attendant humiliations and in
justices bear me down to spiritual defeat. My inner
life is mine, and I shall defend and maintain its in
tegrity against all the powers of hell.”
James Weldon Johnson, Negro Americans, What Now?,
p. 103. See also Washington, The Future of the American
Negro, p. 26.
30 “No argument or rationalization can alter 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 caste status on the
minority group.” [Italics supplied.] To Secure These
3 5
“ separate but equal” is a plain contradiction
in terms.
C. The “separate hut equal” doctrine does not control the
issues before the Court in this case, hut that doctrine, if
it he deemed applicable here, should he I'eexamined and
discarded
The segregated basis on which the railroad fur
nished dining car service to colored passengers
clearly constituted inequality of treatment con
demned by Section 3 of the Interstate Commerce
Act, unless it is to be interpreted as requiring
only the trappings, not the substance, of equality.
Such a narrow construction could not easily be
squared with the “ sweeping prohibitions” of the
Act. Mitchell case, 313 U. S. at p. 94.31 The court
Rights, Report of the President’s Committee on Civil
Rights, 82.
“The Court has never faced the reality that segregation
necessarily implies inequality, for equals do not hesitate to
mingle with each other in public places. Any traveler in
lands where segregation is practiced, be it the South where
the victim is the Negro, or Nazi Germany where it is the
Jew, knows that segregation is a badge of one race’s claim
to superiority over the other.” Fraenkel, Our Civil Liber
ties., p. 2 0 1 .
31 The prohibition of “any undue or unreasonable prejudice
or disadvantage in any respect whatsoever” is certainly as
broad as the prohibition of denial of “full and equal accom
modations,” the phrase generally used in state statutes pro
hibiting discrimination. This prohibition has been uni
formly held to apply to segregation. See, e. g., Jones v.
Kehrlein, 49 Cal. App. 646; Ferguson v. Gies, 82 Mich. 358,
363; Joyner v. Moore-Wiggins Co., 136 N. Y. S. 578, affirmed
without opinion, 211 N. Y. 522; Anderson v. Pantages
Theatre Co., 114 Wash. 24. See also Mangum, The Legal
Status of the Negro, pp. 34r-38; Note, 39 Col. L. Rev. 986,
1003. Cf. Railroad Co. v. Brown, 17 Wall. 445, 451—453.
36
below bas held, however, that the enforced segre
gation of Negro passengers in railroad dining
cars is not a denial of their right to equal accom
modations, and in support of this holding has re
lied on several decisions of this Court regarded as
establishing the rule that “ separate but equal”
facilities satisfy the requirements of the law. I t
is submitted, however, that (1) the authorities
relied on do not control the issues presented by
this case, and that (2) if the so-called “ separate
but equal” doctrine be deemed applicable here,
it should be reexamined and overruled.
(1) Hall v. DeCuir, 95 U. S. 485, the earliest
of the cases cited in support of the ruling below,
held only that a state enactment infringes upon
the federal commerce power when it regulates an
interstate carrier with respect to separation or
non-separation of white and colored passengers.
This ruling obviously has no application to the
issues here presented. Cf. Morgan v. Virginia,
328 U. S. 373. Similarly, Chiles v. Chesapeake
& Ohio Rwy. Co., 218 U. S. 71, merely held that
when an interstate carrier provides separate cars
or compartments for the exclusive use of white
passengers and others for the exclusive use of
colored passengers, it does not exceed the limits of
its authority to establish reasonable regulations
governing the transportation service which it per
forms. This was implicitly held in the Be Cuir
case, and the Chiles case was regarded as con
3 7
trolled by the earlier decision.82 In the Chiles
case the plaintiff did not at any stage of the pro
ceeding rely upon any provision of the Interstate
Commerce A ct32 33 and the briefs filed in this Court
did not even mention Section 3 of the Act. The
Court, in assuming that Congress had taken no
action respecting segregation in interstate travel,
referred to what was said and held on this point
in the Be Cuir case. See pp. 75-77. Since the
Court’s assumption as to nonaction by Congress
was based on a case decided ten years before pas
sage of the Interstate Commerce Act, and since it
was made without giving any consideration to the
anti-discrimination provisions of Section 3 of that
Act, the decision cannot possibly be deemed a con
struction of the meaning or application of Sec
tion 3.
In Mitchell v. United States, 313 U. S. 80, the
carrier had refused to give to the plaintiff, because
of his race, any Pullman car accommodations.
32 Of the portion of the opinion in the Chiles case setting
forth the grounds of decision (pp. 75-78), over two-thirds
is devoted to a discussion of the De CvAr case and its appli
cation.
33 The plaintiff had not filed a complaint with the Inter
state Commerce Commission and therefore was probably
barred from relying upon any claim of violation of the
Interstate Commerce Act. If such a claim “necessarily in
volves a question of ‘reasonableness,’ ” the Commission has
“primary jurisdiction” and there can be no recovery in the
absence of a ruling by the Commission on the question of
violation. United States v. Interstate Commerce Commis
sion,, 337 U. S. 426,437.
38
The case therefore presented, as this Court said
(p. 94), “ not a question of segregation but one
of equality of treatment.” To be sure, the
Court’s opinion appeared to agree with the view
that the carrier’s subsequent practice of furnish
ing a compartment to a colored passenger for
the price of a Pullman seat “ avoids inequality.”
See p. 96. This aspect of the decision is not,
however, presently apposite. The type of segre
gation here involved is far more serious. When
colored passengers are furnished dining car serv
ice only at a table partially screened off as a
symbol and token of their separate and inferior
status, the segregation is open, explicit, and
humiliating.
Finally, reliance is placed most heavily on
Plessy v. Ferguson, 163 U. S. 537, which ruled
that state-enforced separation of white and
colored persons under a statute requiring “ equal”
accommodations does not necessarily infringe the
command of the Fourteenth Amendment that no
State shall deny to any person the equal protec
tion of the laws. We submit that, even assuming
arguendo that the “ separate but equal” doctrine
retains some vitality for constitutional purposes,
it does not establish the validity, under the Inter
state Commerce Act, of the segregation enforced
in the railroad’s dining cars.
In the first place, the language of the statute
provides a possible basis for distinction. The
39
prohibition of Section 3, that no carrier shall
subject any person to 11 any undue or unreasonable
prejudice or disadvantage in any respect whatso
e v e r is both precise and inclusive. This may
conceivably be construed differently from the
language of the “ equal protection of the laws”
clause of the Fourteenth Amendment, which has
“ a generality and adaptability * * * found
to be desirable in constitutional provisions.” 84
In the second place, the statute and the con
stitutional provision differ in background and, to
some extent, in purpose. In the Plessy case the
Court gave as grounds for its ruling that the
equal protection clause covers only ‘‘civil and
political” rights and that enforced separation of
the white and colored races does not infringe
such rights. See 163 U. S. 537, at pp. 544, 551.
As we have stated, we believe this holding to be
erroneous. But, even if it be accepted, the same
conclusion does not necessarily follow where the
question is whether giving service to the members
of a race under conditions which publicly stig
matize them as ostracized and inferior, when no
such conditions attach to the service given others,
is in conflict with the explicit statutory provision
that no interstate carrier shall, in the course of
the service which it renders, subject any person
to “ any undue or unreasonable prejudice or dis
advantage in any respect whatsoever.”
84 See Appalachian Goals, Inc. v. United States, 288 U, S.
344, 360.
40
In the third place, the present case comes
within an exception to the “ separate but equal”
doctrine stated or plainly indicated in the Plessy
opinion. The Court there said (p. 541) that laws
requiring the separation of the white and colored
races “ do not necessarily imply the inferiority of
either race to the other” (italics supplied). In
other words, if the separation required did imply
the inferiority of one race, the accommodations
would be “ separate” but they would not be
“ equal.” While the Plessy case held that en
forced separation is not in and of itself inequality,
it did not hold that, as a matter of law, similar but
separate physical accommodations are always
equal. And if the question is one of fact, the
facts of the present case establish beyond all
doubt that the segregation which is enforced here
is the antithesis of equality {supra, pp. 28-34).
(2) If this Court should conclude that the is
sues presented by this case camiot be considered
without reference to the “ separate but equal”
doctrine, the Government respectfully urges that,
in the half-century which has elapsed since it
was first promulgated, the legal and factual as
sumptions upon which that doctrine rests have
been undermined and refuted. The “ separate
but equal” doctrine should now be overruled
and discarded.
The decision in the Plessy case appears to rest
on two major premises. One is that laws re
quiring separation of the white and colored races
41
do not imply the inferiority of the colored race.
The other is that segregation infringes only
“social” rights and that these rights, as distinct
from “ civil” or “ political” rights, are not within
the ambit of the equal protection clause of the
Fourteenth Amendment.
I t is a question of fact what the community
at large understands to be the meaning of sin
gling out the members of the colored race for
separation from all other citizens, whether it
is in purchasing a bus ticket at the same ticket
window, riding on the same street car or railroad
coach, or going to the same restaurant, theatre
or school. In the Plessy case the Court concluded
that this minority race is not stigmatized as
inferior, as constituting a lower social caste, when
law decrees that it shall ride apart, eat apart, or
stand in line for tickets apart. We submit that
the Court’s a priori conclusion cannot stand
today in the face of a wealth of evidence flatly
contradicting it.35
35 In addition to the materials and authorities cited else
where in this brief, see Myrdal, An American Dilemma, 100,
628; Dollard, Caste and Class in a Southern Town, 62-63,266;
Heinrich, The Psychology of a Suppressed People, 57-61;
Sutherland, Color, Class, and Personality, 42-59; Johnson,
Patterns of Negro Segregation, 270; Bond, Education of the
Negro and the American Social Order, 384; Moton, What
the Negro Thinks, 12-13, 99; Bunche, Education in Black
and White, 5 Journal of Negro Education 351; To Secure
These Rights, supra, 79, 82; Fraenkel, Our Civil Liber
ties, 2 0 1 .
See also McGovney, Racial Residential Segregation by
42
We likewise believe that there was error in
the second premise of the “ separate but equal”
doctrine enunciated in the Plessy case, namely,
that enforced separation of the races affects only
“ social” rights not within the purview of the
Fourteenth Amendment. The Amendment strikes
at inequality without qualification. Certainly its
language furnishes no basis for the distinction
which the Court drew between “ social” rights
State Court Enforcement of Restrictive Agreements, Cov
enants or Conditions in Deeds is Unconstitutional, 33 Calif.
L. Rev. 5, 27, note 94; Note, 39 Columbia L. Rev. 986, 1003;
Note, 56 Yale L. J. 1059, 1060; Note, 49 Columbia L. Rev.
629, 634.
In Collins v. Oklahoma State Hospital, 76 Okla. 229, 231,
the Court said: “In this state, where a reasonable regulation
of the conduct of the races has led to the establishment of
separate schools and separate coaches, and where conditions
properly have erected insurmountable barriers between the
races when viewed from a social and a personal standpoint,
and where the habits, the disposition, and characteristics of
the race denominate the colored race as inferior to the
Caucasian, it is libelous per se to write of or concerning a
white person that he is colored.” [Italics supplied.]
In Wolfe v. Georgia Railway <& Electric Co., 2 Ga. App.
499,505, the court said: “It is a matter of common knowledge,
that, viewed from a social standpoint, the negro race is in
mind and morals inferior to the Caucasian. The record of
each from the dawn of historic time denies equality.”
For other cases holding that applying the word “Negro” or
“colored person” to a white man gives rise to an action for
defamation see Flood v. News ds Courier Co., 71 S. C. 1 1 2 ;
Stultz v. Cousins, 242 Fed. 794 (C. A. 6 ). See also Louisville
tfe Nashville R. R. Co. v. Ritchel, 148 Ky. 701, 706; Missouri,
K. & T. Ry. Co. v. Ball, 25 Tex. Civ. App. 500, 503; Chicago
R. I. & P. Ry. Co. v. Allison, 12 0 Ark. 54, 60-61.
43
and those which are “ civil” or “ political.”
Furthermore, the distinction drawn is, at best,
nebulous and largely a matter of emphasis. “ In
reality it is not possible to isolate a sphere of life
and call it ‘social.’ There is, in fact, a ‘social’
angle to all relations. ’ ’36
I t is one thing to define social equality in terms
of integration into white social organizations; it
is another to define as “ social” the right to
equality hi the use and enjoyment of public
facilities.37 Travel is for business as well as for
pleasure. This Court has held that the Four
teenth Amendment requires “ substantial equality
of treatment” as to the facilities afforded to those
who travel by railroad. McCabe v. Atchison, T.
& S..F. By. Co., 235 IT. S. 151, 161.
In the Plessy case the Court also said (p. 551)
that legislation is “ powerless to eradicate” racial
prejudice. This observation, even if true, was
irrelevant to the constitutional issue before the
Court. I t might properly have been made before
a legislative body considering the merits of a bill
to penalize conduct manifesting racial prejudice.
But the Court was not called upon to make a
judgment of policy as to whether racial prejudice
can be eradicated by legislation; the only question
was whether a particular statute created, en
36 Myrdal, An American Dilemma, vol. 1, p. 642.
37 Drake & Cayton, Black Metropolis, 121.
859005— 49- ■4
44
forced, or supported the denial of a constitu
tionally protected right. Statutes and ordinances
may not in themselves remove racial antagonisms,
but it is clear that they cannot constitutionally
magnify such antagonisms by giving the sanction
of law to what would otherwise be a private, in
dividual act of discrimination. That is the basic
vice of the Commission’s order in this case.
In any event, the Court’s observation is, at best,
a half-truth. Although legislation cannot “ eradi
cate” racial prejudice, experience has shown that
it can create conditions favorable to the gradual
disappearance of racial prejudice; or it can, on the
other hand, strengthen and enhance it. Civil-
rights and antidiscrimination statutes have been
shown to have the former effect, and so-called Jim
Crow laws the latter. A Commissioner of the New
York State Commission Against Discrimination
has recently written:
Critics of fair-employment laws used to
claim that long-established habits of
discrimination could not be changed by
legislation. Their argument has been un
mistakably answered today. Nearly four
years’ experience in New York—and sim
ilar experience in New Jersey, Massachu
setts, Connecticut, Washington, Oregon,
New Mexico and Rhode Island, all of which
have passed anti-discrimination legislation
modeled after the New York law—indicates
45
conclusively that wise legislation creates a
climate of opinion in which discrimination
tends to disappear.88
On the other side of the picture, “ Jim Crow”
laws, which govern important segments of every
day living, not only indoctrinate both white and
colored races with the caste conception, but they
solidify the segregation existing outside these
laws and give it respectability and institutional
fixity.38 39 As the Supreme Court of California has
pointedly said, the way to eradicate racial tension
is not “ through the perpetuation by law of the
prejudices that give rise to the tension.” 40 In
fields which “ Jim Crow” laws do not cover there
has been “a slow trend toward a breakdown of
segregation” ; within the fields of their operation
the laws “ keep the pattern rigid.” 41
38 Simon, Causes and Cure of Discrimination, New York
Times, May 29, 1949, section 6 , p. 10, at p. 35. “Can this
technique of eliminating discrimination by rooting out the
fears that cause it be applied successfully on a large scale?
Our New York experience insists that the answer is an un
equivocal ‘Yes.’ * * * we have changed the entire pat
tern of employment of the most populous state in the union
in less than four years.” {Id., p. 36.) See 191̂ 8 Report of
Progress, New York State Commission Against Discrimina
tion, pp. 1 1 - 1 2 .
39 Myrdal, An American Dilemma, vol. 1, pp. 579-580.
See also Berger, The Supreme Court and Group Discrimina
tion Since 1937,49 Col. L. 201,204-205.
40 p erez Sharp, 32 Calif. 2d 711, 725.
41 Myrdal, An American Dilemma, vol. 1, p. 635.
In the South, segregation in privately operated public
services “is often less rigid than in those operated by gov
ernment” {id., p. 634).
46
We submit, moreover, that the Fourteenth
Amendment, considered in the light of its history
and purposes, furnishes no support for the ‘ ‘ sepa
rate but equal ’ ’ doctrine. The Amendment was pri
marily designed to establish Negroes as citizens
and to protect them in the full enjoyment of
rights concomitant to such status. This Court
has said that “ the chief inducement to the passage
of the Amendment was the desire to extend fed
eral protection to the recently emancipated race
from unfriendly and discriminating legislation
by the States.” Buchanan v. Warley, 245 U. S.
60, 76. I t is “ to be construed liberally, to carry
out the purposes of its framers,” and the effect
of its prohibitions is to declare that “ the lav/ in
the States shall be the same for the black
as for the white; * * * and, in regard to the
colored race, for whose protection the amendment
was primarily designed, that no discrimination
shall be made against them by law because of their
color.” Strauder v. West Virginia, 100 U. S.
303, 307. I t was designed to forestall state legis
lation aimed at maintaining the subordinate status
of those newly emancipated. When the Amend
ment was adopted, “ 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 be en
47
acted or enforced to perpetuate the distinctions
that had before existed.” Id., p. 306. See also
the Slaughter-House Cases, 16 Wall. 36, 70-72,
81.
Segregation does not appear to have been spe
cifically discussed in the debates on the Amend
ment itself. The apparent reasons for this were
that the first section of the Fourteenth Amend
ment was designed to secure the analogous provi
sions of Section 1 of the Civil Rights Act of 1866,
14 Stat. 27, by incorporating them into the Consti
tution,42 and that the question of segregation had
been fully considered during the debates preced
ing passage of the Civil Rights Act of 1866. The
opponents of the bill had repeatedly argued that
it would require the abolition of separate
schools.43 While a few advocates of the measure
disputed this,44 it is far from clear that a majority
of the bill’s supporters shared this view. Con
temporaneous press comment reflects the general
understanding that the bill would prohibit
segregation.45
The debates preceding enactment of the Civil
Rights Act of 1875, 18 Stat. 335, show even more
clearly that the Amendment was understood to
outlaw state-enforced segregation. The bill in
42 Flack, Adoption of the Fourteenth Amendment, 20, 81,
94-95.
43 Cong. Globe, 39tli Cong., 1 st Sess., 499, 500, 1268.
44 Id., 1117-1118,1294.
45 Flack, supra, at 41, 41—45, 53-54.
48
its original form provided that all persons, with
out distinction as to race or color, should be en
titled to “ equal and impartial” enjoyment of any
accommodation furnished by common carriers,
public schools, innkeepers and the like.46 Both
supporters and opponents of the measure con
strued it as invalidating racial segregation.47 48
Proposed amendments to permit local communi
ties to provide equal but separate educational
facilities were defeated in both branches of Con
gress.43 While express reference to public schools
was finally eliminated,49 its elimination was not
because of doubt of the power of Congress under
the Fourteenth Amendment, since the “ full and
equal” requirement was retained as to other
accommodations, advantages and facilities.
46 Cong. Globe, 42d Cong., 2d Sess., 244 (1871). The bill
was first introduced by Senator Sumner as an amendment to
another measure on December 20,1871. Each succeeding ses
sion it was reintroduced with immaterial variations until its
passage in 1875. The change from “equal and impartial” to
“full and equal” in the Act’s final form appears to be with
out significance.
47 Cong. Globe, 42d Cong., 2d Sess., 763, 843-845, 3258-3262
(1872); 2 Cong. Eec. 4116, 4143-4145, 4167-4169, 4171-4174
(1874). See also Flack, supra, 250-276.
The Civil Eights Act of 1875 was eventually declared un
constitutional upon the ground that it operated directly upon
individuals, whereas the prohibitions of the Fourteenth
Amendment run only against state action. Civil Rights
Cases, 109 U. S. 3.
48 Cong. Globe, 42d Cong., 2 d Sess., 3258-3262 (1872); 2
Cong. Eec. 4167 (1864); 3 Cong. Eec. 1010 (1875).
49 3 Cong. Eec. 1 0 1 0 .
49
Since Section 5 of the Fourteenth Amendment
authorizes Congress to enforce only the provi
sions of the Amendment, the passage of prohibi
tory legislation embracing racial segregation
clearly shows that a majority of both branches of
Congress thought that segregation came within
the prohibitions of the Amendment.
D. The harm to the public interest which has resulted from
enforced racial segregation argues against its extension to
the field of interstate transportation
The effects of the segregation to which Negroes
are subjected are not confined to those who are
colored. They extend also to those who are
white, and they bear vitally upon the interests of
the Nation as a whole. We submit that the
harmful effects to the public interest which have
resulted from racial segregation furnish persua
sive grounds for rejecting its extension to the
field of interstate transportation. In addition,
the materials referred to in this section of the
brief conclusively refute the notion that facilities
segregated on a racial basis can in any circum
stances be regarded as equal.
1. Effect on Negroes
Segregation is a dominant factor in every as
pect of the Negro’s life. I t limits his physical
movements and economic opportunities, and ad
versely affects his personality and social develop
ment. I t is much more than jim-erowism in ve-
5 0
hides and public places. I t is an ostracism
symbolizing inferiority which colors his thoughts
and action at almost every moment.50
Professional opinion is almost unanimous that
segregation has detrimental psychological effects
on those segregated. A questionnaire addressed
to 849 representative social scientists was
answered by 61% of those to whom it was sent.51
Of those replying, 90.4% believed that enforced
segregation has 11 ‘detrimental psychological ef
fects” on those segregated if “ equal facilities”
are provided, 2.3% expressed the opposite opin
ion, and 7.4% did not answer the question or ex
50 “Every time I think about it, I feel like somebody’s pok
ing a red-hot iron down my throat. Look! we live here and
they live there. We black and they white. They got things
and we ain’t. They do things and we can’t. I t ’s just like
living in jail. Half the time I feel like I ’m on the outside of
the world peeping in through a knothole in the fence.”
Cooper, The Frustrations of Being a Member of a Minority
Group: What Does I t Do to the Individual and to His Rela
tionships with Other People? 29 Mental Hygiene 189, 193,
quoting from Native Son by Richard Wright.
51 Deutscher & Chein, The Psychological Effect of En
forced Segregation: A Survey of Social Science Opinion, 26
Journal of Psychology 259, 261, 262. The questionnaire was
sent to all members of the American Ethnological Society,
to all psychologists who were members of the Division of
Social Psychology and Personality of the American Psy
chological Association, to all sociologists who were members
of the American Sociological Society and listed race rela
tions or social psychology as a major or dominant interest,
and to sociologists who had published research on race rela
tions during the period 1937-1947 {id., 260). Nearly two-
thirds of those who replied gave personal professional ex
perience as a basis for the opinion expressed {id., 271).
5 1
pressed no opinion.62 Those who elaborated their
position with comments (55% of those replying)
stressed that segregation induced feelings of in
feriority, insecurity, frustration, and persecu
tion, and that it developed, on the one hand, sub
missiveness, martyrdom, withdrawal tendencies,
and fantasy, and on the other hand, aggression.* 53 54
The resentment and hostility provoked by seg
regation find various means of psychological “ ac
commodation,” various forms of release.64 Medi
62 Id., 261, 266.
53 Id., 272-277.
54 “A constant stream of stimuli bombarding tlie person
ality with feelings of humiliation, must inevitably produce
among others a state of continuously existing hatred, which
unable to discharge itself directly on the offending stimulus,
remains floating, to be released in a greatly exaggerated form
on the first suitable object.” Prudhomme, The Problem of
Suicide in the American Negro, 25 Psychoanalytic Review
187, 200;
“Accommodation involves the renunciation of protest or
aggression against undesirable conditions of life and the
organization of the character so that protest does not appear,
but acceptance does. I t may come to pass in the end that the
unwelcome force is idealized, that one identifies with it and
takes it into the personality; it sometimes even happens that
what is at first resented and feared is finally loved. In this
case a unique alteration of the character occurs in the direc
tion of masochism.” Dollard, Caste and Class in a Southern
Town, 255.
“Even though their personalities seem well accommodated
to the caste system, it should not be thought that the Negroes
are too stupid to realize the nature of the situation. They
understand it quite well, in fact much better than do mem
bers of the white caste who naturally wish to disguise and
extenuate it out of loyalty to our democratic theory which
52
ocrity is accepted as a standard because of the
absence of adequate social rewards or acceptance.55
Energy and emotion which might be construc
tively used are lost in the process of adjustment
to the “ .Tim Crow” concept of the Negro’s charac-
does not countenance caste and class gains. * * * We
may believe, then, that Negroes will perceive the caste and
class distinctions as a chronic frustration situation. In such
a situation we should expect aggression from them. What,
in fact, do they do ?
“There seem to be five possibilities of action on the part
of the Negroes in the face of these gains [since slavery].
They can:
“ (1 ) Become overtly aggressive against the white caste;
this they have done, though infrequently and unsuccessfully
in the past.
“ (2 ) Suppress their aggression in the face of the gains
and supplant it with passive accommodative attitudes. This
was the slavery solution and it still exists under the caste
system.
“ (3) Turn aggression from the white caste to individuals
within their own group. This has been done to some extent
and is a feature of present-day Negro life.
“ (4) Give up the competition for white-caste values and
accept other forms of gratification than those secured by the
whites. This the lower-class Negroes have done.
“ (5) Compete for the values of white society, raise their
class position within the Negro caste and manage aggression
partly by expressing dominance within their own group and
partly by sheer suppression of the impulse as individuals.
This is the solution characteristic of the Negro middle class.”
Dollard, supra, 252-253.
55 “The middle-class Negro tries to maintain allegiance to
the dominant American standards and then experiences the
bitter fact that this allegiance is not rewarded as it is in the
white caste; instead he is ignominiously lumped with per
sons in his own class whose behavior standards are inferior
to his own.” Dollard, supra, 424.
“In order for any individual to mature, that is, to be will-
5 3
teristics and his inferior status in society.56 Psy
chosomatic disease is induced by the tensions en-
ing to assume responsibility in work and in personal rela
tions, be must feel that there is some hope of attaining some
of the satisfactions of maturity. * * * White society
gives him [the Negro] little share in any of the mature grat
ifications of creative work, education, and citizenship. I t
would not be remarkable if, deprived of all mature gratifica
tions, he lost zest for responsible action.” McLean, Group
Tension, 2 Journal of American Medical Women’s Associa
tion 479,482.
66 “One of the most devastating frustrations that plague
the Negro is the majority concept that the Negro people are
inferior; that always they remain infantile or childlike; that
their smiling, happy faces are but conclusive evidence that
they are not capable of seriousness of purpose or of sustained
intellectual participation. * * * All of us know the
terrific impact that constant repetition has upon the
psyche. * * * The Negro is born into a culture that
stubbornly refuses to accept him as an equal. Custom and
tradition force the majority concept of his inferiority into
his consciousness and keep it there.
“Let us next consider the frustrations involved in the
process of never being allowed to be one’s self, never daring
to be a person in one’s own distinct uniqueness and indi
viduality. * * * Negroes when in contact, casual or pro
longed, with other Negroes, invariably turn the conversation
to a discussion of race, its implications and methods of solv
ing the problem, either through individual or through
collective action. When Negroes are in the company of
white persons, the conscious awkwardness, the studied care
fulness, the restraint, the unconscious tones and undertones—
all these are a constant reminder to the Negro that he is a
Negro and that his status is that of a dispossessed minority.
Imagine, if you will, the tremendous emotional energy ex
pended in the process of never being able to be unaware of
one’s self. Imagine, if you can, the tragedy of the diffused
and dissipated energy that is lost in the process of having
54
gendered by segregation and other forms of racial
discrimination.* 57
The extensive studies made of Negro troops
during the recent war furnished striking example
of how racism, of which segregation is the sharp
est manifestation, handicaps the Negro. The
most important single factor affecting integration
of the Negro into Army life was that he had to
carry the burden of race prejudice in addition to
constantly to think of one’s designated and specifically lim
iting minority role.” Cooper, The Frustrations of Being a
Member of a Minority Group: What Does I t Do to the Indi
vidual and to His Relationships with Other Peoplef, 29
Mental Hygiene 189,190-191.
57 “The high incidence of hypertension among southern
Negroes is probably one indication of an unconscious at
tempt at mastery of the hostility which must be controlled.
The chronic rage of these individuals produces the hyper
tension which initially is fluctuating in character. Even
tually the pathological changes resulting from this overload
on the cardiovascular renal system lead to a consistently
high blood pressure. All available evidence from clinicians
indicates that functional (that is, psychosomatic) disease is
markedly on the increase in the Negro.” McLean, Psycho-
dynamic Factors in Racial Relations, The Annals of the
American Academy of Political and Social Science (March
1948), 159, 161.
“The psychology of the Negro developed in the repressive
environment in which he lives might be described as the
psychology of the sick * * * I t is impossible to estimate
what are the pathological results of the above outlook on life.
I t must certainly mean a reduction in that energy that char
acterizes healthy organisms.” Frazier, Psychological Fac
tors in Negro Health, Journal of Social Forces, vol. 3 , p. 488.
5 5
all of the other problems faced by the white
soldier.58
For a general discussion of the effects of the
caste system, which segregation supports and ex
emplifies, on Negro personality and behavior, see
Myrdal, An American Dilemma, vol. 2, pp. 757-
767.
2. Effect on'Whites
Segregation also detrimentally affects the
dominant white group.59 “ Segregation and dis
crimination have had material and moral effect on
whites, too. Booker T. Washington’s famous
remark, that the white man could not hold the
Negro in the gutter without getting in there
himself, has been corroborated by many white
Southern and Northern observers.” Myrdal, An
American Dilemma, vol. I, pp. 643-644. The
white person must adjust himself, consciously or
unconsciously, to the hypocrisy of a double
standard violating the American creed which
he professes to follow. Feelings of guilt are
generated and moral values weakened; the basic
realities of the racial problem are diverted into
the mechanism of segregation:
Those who segregate others soon become
frightened, insecure people forced to ac- * 69
58 Studies in Social Psychology in World War II, vol. I,
chap. 10. See particularly pp. 502, 504, 507.
69 Deutscher & Chein, supra, 26 Journal of Psychology 261,
267.
56
cept and invent prejudice to justify their
actions. They become hyprocrites who
either close their eyes to stark reality or
invent slogans to hide fundamental issues.
The master classes, no less than the sub
jected, become victims of the system.60 61
Segregation and practices allied to it promote
the master-race psychology, thus sowing the seeds
for oppressive individual and collective action.
S. Effect on the Nation
Segregation is part of a vicious cycle. I t pre
vents groups from knowing each other. This
lack of knowledge engenders distrust and antago
nism. They in turn stimulate the demand for
sharp cleavage between races and maintenance
of a system of segregation. Thus groups within
the Nation are kept asunder.81
60 Weaver, The Negro Ghetto, 270.
61 From these natural causes the white man’s knowledge of
Negro life is diminishing and the rate is accelerated by the
present-day policy of segregation. This operates practically
to make an ever-widening gulf between the two races which
leaves each race more and more ignorant of the other. With
out contact there cannot be knowledge; segregation reduced
the contacts, and so knowledge and understanding decrease.
With decreasing knowledge comes increasing distrust and
suspicion, and these in turn engender prejudice and even
hatred. So a vicious circle is established whose ultimate
effect, unless counteracted, must be a separation of the races
into more or less opposing camps, with results as disastrous
to the spirit of American institutions as to the genuine prog
ress of both races.” iVToton, ~What the Negro Thinlcs ̂5. See
also Dollard, Caste and Class in a Southern Town, supra, 73.
57
Experience and informed opinion are in agree
ment that normal contacts between the races
diminish prejudice while enforced separation in
tensifies it.62 Race relations are improved by
living together,* 63 working together,64 serving to
gether,65 going to school together.66 The absence
of a color line in certain countries goes far to
show that racial prejudice is not instinctive or
hereditary, but is rather kept alive by man-made
barriers such as segregation.67
The experience of the Sperry Gyroscope Com
pany is noteworthy. Its employment of Negroes
began in 1941 and steadily progressed until, by
1944, one-third of its Negro employees were in
highly skilled occupations, one-third in semi
82 Sancton, Segregation: The Pattern of a Failure, Survey
Graphic (Jan. 1947), p. 1 0 ; Yarros, Isolation and Social Gon-
;(Hots, 27 American Journal of Sociology, 211.
63 To Secure These Rights, Report of the President’s Com
mittee on Civil Rights, 85-86. Lee & Humphrey, Race
Riot, 17.
64 Brophy, The Luxury of Anti-Negro Prejudice, 9 Public
Opinion Quarterly 456; Oppenheimer, Non-Discriminatory
Hospital Service, 29 Mental Hygiene 195.
65 Studies in Social Psychology in World War II, vol. I,
pp. 594-595; Nelson, The Integration of the Negro into the
United States Nm y (Navy Dept., 1948), 71-72.
66 Race Riot, supra, p. 17; Ware, The Role of Schools in
Education for Racial Understanding, 13 Journal of Negro
Education, 421-424.
67 Pierson, Negroes in Brazil, 336, 344-350.
58
skilled, and one-third in other jobs.68 In the
words of the president of the company:
The initial employment of Negroes and
each subsequent extension of their employ
ment into new categories was received with
doubt by the supervisors, and, in some
cases, by rumblings and even threats of
trouble from some groups of white workers.
The threats never materialized, the doubts
disappeared and were succeeded by friend
liness and cooperation in helping the Negro
to learn his new job and to progress to a
better one. I know of no instance now
where the Negro worker is not judged en
tirely on the basis of his competency and
without consciousness of his race.
A marked change in attitude occurred in white
soldiers who served in combat with Negro troops.
Two out of three admitted that at first they had
been unfavorable to serving with Negro troops.
Three out of four stated their feelings had
changed after service with them in combat. And
a survey of opinion of white servicemen on the
question of including Negro and white platoons
in the same company showed that their willing
ness to accept such integration was in direct ratio
to their closeness to actual combat experience with
Negro troops.69
68Gillmor (president of Sperry Gyroscope Co.), Cam the
Negro Hold His Job?, National Association for the Ad
vancement of Colored People Bulletin (Sept. 1944) 3- 4 .
69 Report No. ETO-82, Research Branch, European The
atre of Operations of the Army, as summarized in To Secure
These Rights, supra, 83-85.
5 9
Rebellion against constituted authority (pa
rental, school or state) is, for the adolescent, a
normal manifestation of growth toward inde
pendence. But, in the case of many, the apparent
hypocrisy of a society professing equality but
practicing segregation and other forms of racial
discrimination furnishes justification, and reason
for the latent urge to rebel, and frequently leads
to lasting bitterness or total rejection of the
American creed and system of government.
Recently a Congressional committee summoned
“ Jackie” Robinson, the Negro baseball star, as a
witness to rebut certain widely publicized state
ments which had questioned the loyalty of large
numbers of the ISTegro race. He testified: 70
Just because Communists kick up a big
fuss over racial discrimination when it
suits their purposes, a lot of people try to
pretend that the whole issue is a creation
of Communist imagination.
But they are not fooling anyone with
this kind of pretense, and talk about “ Com
munists stirring up Negroes to protest,”
only makes present misunderstanding
worse than ever. Negroes were stirred up
long before there was a Communist Party,
and they’ll stay stirred up long after the
70 Hearings Regarding Commwnist Infiltration of Minority
Groups, Part /, House Committee on Un-American Activi
ties, 81st Congress, 1st Sess., p. 479.
859005— 49----5
60
party has disappeared—unless Jim Crow
has disappeared by then as well.
In our foreign relations, racial discrimination,
as exemplified by segregation, has been a source
of serious embarrassment to this country. I t has
furnished material for hostile propaganda and
raised doubts of our sincerity even among friendly
nations. A letter from Mr. Dean Acheson, then
Acting Secretary of State, to the Fair Employ
ment Practice Committee on May 8,1946, stated :n
* * * the existence of discrimination
against minority groups in this country has
an adverse effect upon our relations with
other countries. We are reminded over
and over by some foreign newspapers and
spokesmen, that our treatment of various
minorities leaves much to be desired.
While sometimes these pronouncements are
exaggerated and unjustified, they all too fre
quently point with accuracy to some form
of discrimination because of race, creed,
color, or national origin. Frequently we
find it next to impossible to formulate a
satisfactory answer to our critics in other
countries; the gap between the things we
stand for in principle and the facts of a
particular situation may be too wide to
be bridged. * * *
I think it is quite obvious * * *
that the existence of discriminations against
minority groups in the United States is a 71
71 Quoted in To Secure These Rights, supra, 146-147.
6 1
handicap in our relations with other
countries.
Recent remarks of representatives of foreign
powers in a subcommittee of the United Rations
General Assembly typify the manner in which
racial discrimination in this country is turned
against us in the international field.72 The refer
ences to this subject in the unfriendly foreign
press are frequent and caustic.73 * * * * 78
72 In discussing a Bolivian proposal concerning aboriginal
populations of the American continent, the Soviet repre
sentative said:
Guided by the principles of the United Nations Char
ter, the General Assembly must condemn the policy and
practice of racial discrimination in the United States
and any other countries of the American continent where
such a policy was being exercised. (United Nations,
General Assembly, Ad Hoc Political Committee, Third
Session, Part II, Summary Record of the Fifty-Third
Meeting (May 11,1949), p. 12.)
Another Soviet representative stated:
In the southern states, the policy of racial discrimina
tion was actually confirmed by law and most strictly
observed in trains, restaurants, cinemas, and elsewhere
(id., Summary Record of Fifty-Fourth Meeting (May
13, 1949), p. 3).
The Polish representative said:
The representative of Poland did not, however, be
lieve that the United States Government had the least
intention to conform to the recommendations which
would be made by the United Nations with regard to
the improvement of living conditions of the coloured
population of that country (id., p. 6).
78 Thus an article in The Bolshevik (U. S. S. R.) No. 15,
1948 (Frantsov, Nationalism—The Tool of Imperialist Reac
tion), contain the statement: “The theory and practice of
racial discrimination against the Negroes in America is
known to the whole world. The poison of racial hatred has
6 2
Our opposition to racial discrimination has been
affirmed in treaties and international agreements.
The Charter of the United Nations has been
approved as a treaty (59 Stat. 1213). By Article
55, the United Nations agree to promote “ univer
sal respect for, and observance of, human rights
and fundamental freedoms for all without dis
tinction as to race, sex, language, or religion”
(59 Stat. 1046).
At the Inter-American Conference on Problems
of War and Peace at Mexico City in 1945, this
country joined with the other participants in
adopting Resolution No. 41, which reaffirms the
principle of equality of rights and opportunities
for all men “ regardless of race or religion” and
recommends that the Governments of the Ameri
can Republics make every effort to prevent in
their respective countries “ all acts which may
become so strong in post-war America that matters go to
unbelievable lengths; for example a Negress injured in a
road accident could not be taken to a neighbouring hospital
since this hospital was only for ‘whites.’ ” Similarly, in the
Literary Gazette (U. S. S. E.) No. 51, 1948, the article The
Tragedy of Coloured America, by Berezko, states “It is a
country within a country. Coloured America is not allowed
to mix with the other white America, it exists within it like
the yolk in the white of an egg. Or, to be more exact, like a
gigantic ghetto. The walls of this ghetto are invisible but
they are nonetheless indestructible. They are placed within
cities where the Negroes live in special quarters, in buses
where the Negroes are assignd only the back seats, in hair
dressers where they have special chairs.”
63
provoke discrimination among individuals because
of race or religion.” 74
Racial segregation enforced by law hardly com
ports with the high principles to which, in the
international field, we have subscribed. Our posi
tion and standing before the critical bar of world
opinion are weakened if segregation not only is
practiced in this country but also is condoned by
federal law.
Mr. Justice Harlan said in his memorable dis
sent in the Plessy case (163 U. S. at 562) :
We boast of the freedom enjoyed by our
people above all other peoples. But it
is difficult to reconcile that boast with a
state of the law which, practically, puts the
brand of servitude and degradation upon
a large class of our fellow-citizens, our
equals before the law. The thin disguise
of “ equal” accommodations for passengers
in railroad coaches will not mislead any
one, nor atone for the wrong this day done.
Various subterfuges have been employed dur
ing the years since the adoption of the Thirteenth
and Fourteenth Amendments to evade and n ull ify
the effects of their provisions. The emancipation
of an entire race has proved a most complicated
task. More than three-quarters of a century has
not been enough time within which to break down
the barriers surrounding the enslaved, and to
74 Department of State Publication 2497 (Conference Se
ries 85) p. 109.
64
bring them to the full dignity and stature of free
citizens. Discrimination, political, economic, and
social, is still widespread. However, there are in
dications that the process of education, of lessen
ing the incidence of unreasoning prejudice, lagging
for so many years, is increasing in momentum.
Racial antagonisms become acute in localities,
and it is there that discriminatory acts are
practiced, legislation is enacted and on occa
sion validated by courts unwittingly respond
ing to their environment. And so this Court
has been faced through the years with one
controversy after another in which efforts were
made to obtain approval of measures cleverly
calculated to keep the Negro in bondage, to pre
vent him from enjoying his full rights as a
citizen, and to pervert the true intent and mean
ing of the Thirteenth and Fourteenth Amend
ments. This Court has stricken down acts of
local law-making bodies and officials depriving the
Negro of the right to vote, to serve on petit and
grand juries, and of the right to acquire and
use property. More recently, it has restrained
judicial enforcement of racial restrictive cove
nants on real property. In other fields, this Court
has acted to compel local authorities to provide
the Negro with opportunities for education pre
viously denied him.
The evasions and violations of the Constitution
are being gradually eliminated. One handicap is
6 5
the approval, given in another day and genera
tion, to the proposition that the Constitution could
be satisfied and friction removed by the establish
ment of “ separate but equal” facilities. Ex
perience has shown that neither the Constitution,
nor the laws enacted under its authority, nor the
individuals affected, are given the required re
spect and status under such an arrangement.
“Equal” facilities, if separate, are rarely if
ever equal, even in a physical sense. In most
situations they have been used to cloak glaring
inequalities. And the very idea of separate fa
cilities, or separate rights, is in itself a negation
of the full and complete possession of privileges
and immunities of citizenship.
So long as the doctrine of the Plessy case
stands, a barrier erected not by the Constitution
but by the courts will continue to work a denial
of rights and privileges and immunities an
tagonistic to the freedoms and liberties on
which our institutions and our form of govern
ment are founded. “ Separate but equal” is a con
stitutional anachronism which no longer deserves
a place in our law. The Court has said that “ It
is of the very nature of a free society to advance
in its standards of what is deemed reasonable and
right. Representing as it does a living principle,
due process is not confined within a permanent
catalogue of what may at a given time be deemed
the limits or the essentials of fundamental
rights.” Wolf v. Colorado, 338 U. S. 25, 27. I t
66
is neither reasonable nor right that colored citi
zens of the United States should be subjected to
the humiliation of being segregated by law, on the
pretense that they are being treated as equals.
CONCLUSION
I t is respectfully submitted that the judgment
of the district court should be reversed and that
the Interstate Commerce Commission should be
directed to enter an order prohibiting the rail
road from furnishing dining car service to
passengers segregated on a basis of race or color.
P h il ip B . P erlman,
Solicitor General.
H erbert A. B ergson,
Assistant Attorney General.
Charles H. W eston,
P h il ip E lm an ,
Special Assistants to the Attorney General.
October 1949.
APPENDIX
railroad's dining car regulations
Regulations adopted in July 1941
Meals should be served to passengers of dif
ferent races at separate times. I f passengers of
one race desire meals while passengers of a differ
ent race are being served in the dining car, such
meals will be served in the room or seat occupied
by the passenger without extra charge. I f the
dining car is equipped with curtains so that it
can be divided into separate compartments, meals
may be served to passengers of different races at
the same time in the compartments set aside for
them. [R. 186.J
Supplementary regulations adopted August 6,
1942
Effective at once please be governed by the
following with respect to the race separation cur
tains in dining cars:
Before starting each meal pull the curtains to
service position and place a “ Reserved” card on
each of the two tables behind the curtains.
These tables are not to be used by white pas
sengers until all other seats in the car have been
taken. Then if no colored passengers present
themselves for meals, the curtains should be
pushed back, cards removed and white passengers
served at those tables.
(67)
68
After the tables are occupied by white pas
sengers, then should colored passengers present
themselves they should be advised that they will
be served just as soon as those compartments are
vacated.
‘‘Reserved” cards are being supplied you. [R.
186-187.]'
Regulations effective on and after March 1, 1946
Consistent with experience in respect to the
ratio between the number of white and colored
passengers who ordinarily apply for service in
available diner space, equal but separate accom
modations shall be provided for white and col
ored passengers by partitioning diners and the
allotment of space, in accordance with the rules,
as follows:
(1) That one of the two tables at Station No. 1
located to the left side of the aisle facing the
buffet, seating four persons, shall be reserved ex
clusively for colored passengers, and the other
tables in the diner shall be reserved exclusively
for white passengers.
(2) Before starting each meal, draw the parti
tion curtain separating the table in Station No. 1,
described above, from the table on that side of
the aisle in Station No. 2, the curtain to remain
so drawn for the duration of the meal.
(3) A “Reserved” card shall be kept in place
on the left-hand table in Station No. 1, described
above, at all times during the meal except when
such table is occupied as provided in these rules.
(4) These rules become effective March 1,1946.
[R. 7-8.]'
U. S . GOVERNMENT PRINTING OFFICE* 1849