Briggs v. Elliot Statement as to Jurisdiction No. 273

    / c W - C v f '/ -  'LMytuy

S U P R E M E  CO U R T OF TH E  U N ITE D  S T A T E S
>y

OCTOBER TERM, 1951

No. 273

HARRY BRIGGS, J R , ET A L ,
Appellants,

vs.

R. W. ELLIOTT, C h a ir m a n , J. D. CARSON and  GEORGE 
KENNEDY, M embers of t h e  B oard of T rustees of 
S chool  D istrict  No. 22, C larendon  C o u n t y , S . C.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF SOUTH CAROLINA

STATEMENT AS TO JURISDICTION

H arold R . B oulw aee ,
S pottswood W. R obinson , III, 
R obert L. Carter ,
T hurgood M arsh all ,

Counsel for Appellants.



INDEX

S u bject  I ndex
Page

Statement as to jurisdiction.......................................  1
Opinion below ....................................................... 1
Jurisdiction ........................................................... 1
Statement ..............................................................  4
Constitution and statute involved......................  7
Questions presented.............................................  8
Statement of the grounds upon which it is con­

tended the questions involved are substantial. 8
Summary ....................................................... 8

I. The question whether a state which 
undertakes to provide a public 
education for its citizens can sat­
isfy the requirements of the equal 
protection clause of the Four­
teenth Amendment by providing 
a system of separate public ele­
mentary and high school for 
negroes and excluding all negroes 
from the public schools it pro­
vides for all persons is of great 
public importance and should be 
decided by the supreme Court in
this case ....................................  9

II. Statutory classifications base solely 
on race or color violate the Fed­
eral Constitution....................... 20

A. Race or color cannot be
made the basis of a statu­
tory classification ........... 20

B. There is no reasonable basis
for allocating educational 
facilities on the basis of 
race ..............................  23

6927



11 INDEX
Page

C. Segregation statutes cannot 
be upheld on the basis 
that they are necessary 
to preserve public peace
and order ......................  25

III. The majority of the lower court 
erred in refusing to follow the 
applicable decisions of the Su­
preme C ou rt................................  26

Conclusion ............................................................. 35
Appendix “ A ” —Decree and opinion of the United 

States District Court for the Eastern District of
South Carolina..........................................................  37

Appendix “  B ’ ’—Collection of applicable cases.........  74

T able of C ases C ited

Adamson v. California, 332 U. S. 46............................  21
Buchanan v. Warley, 245 U. S. 60................................ 25
Carr v. Corning, 182 F. (2d) 14.................................... 11
Cummings v. Board of Education, 175 U. S. 528. ... 27
Eichols v. Public Service Commission, 306 U. S. 268.. 3
Endo, Ex parte, 323 U. S. 282.............................. 21
Fisher v. Hurst, 33 U. S. 147.......................................  28
Gong Lum v. Rice, 275 U. S. 78.................................... 27
Hirabayashi v. U. S., 320 U. S. 81..............................  20
Korematsu v. U. S., 323 U. S. 214................................  20, 21
McKissick v. Carmichael, 187 F. (2d) 949................  29
McLaurin v. Board of Regents, 339 U. S. 637... 3, 4, 9,11, 24
Mayflower Farms v. Ten Eyck, 297 U. S. 266............. 23
Missouri ex rel. Gaines v. Canada, 305 U. S. 377.......  11, 28
Nixon v. Herndon, 273 U. S. 536.................................. 20
Oliver, In re, 333 IT. S. 257...........................................  21
Plessy v. Ferguson, 163 U. S. 537................................ 11
Quaker City Cab Co. v. Penn., 277 U. S. 389............... 23
Rice v. Elmore, 165 F. (2d) 387.................................... 22
Roberts v. City of Boston, 5 Cush. 158........................  26
Shelley v. Kraemer, 334 U. S. 1 .................................. 26
Sipuel v. Board of Regents, 332 U. S. 631................... 11
Skinner v. Oklahoma, 316 IJ. S. 735............................ 23
Southern Railroad Co. v. Green, 216 U. S. 400.........  23



Page
Sweatt v. Painter, 339 U. S. 629.................................. 9,11, 29
Tahahashi v. Fish <& Game Commission, 334 U. S.

410 .............................................................................. 20
Truax v. Raich, 229 U. S. 33........................................ 23
United States v. Carotene Products, 304 U. S. 144. ... 22
Wilson v. Board of Supervisors, 340 U. S. 909............  4,11

S tatutes  C ited

Code of Laws of South. Carolina, Section 5377.........  7
Constitution of South Carolina, Article XI, Sec­

tion 7 .......................................................................... 2, 7
Constitution of the United States, 14th Amendment,

21, 22, 26
United States Code, Title 28:

Section 1253 ..........................................................  2, 3
Section 2101b ........................................................  2, 3
Section 2281 ..........................................................  3, 4
Section 2284 ..........................................................  3, 4

INDEX 111



IN THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF SOUTH CAROLINA, 

CHARLESTON DIVISION

CIVIL ACTION NO. 2657

HARRY BRIGGS, JR., ET AL.,
Plaintiffs,

R. W. ELLIOTT, C h a ie m a n , ET AL.,
Defendants.

STATEMENT AS TO JURISDICTION

In compliance with Rule 12 of the Rules of the Supreme 
Court of the United States, as amended, plaintiffs-appellants 
submit herewith their statement particularly disclosing the 
basis upon which the Supreme Court has jurisdiction on 
appeal to review the judgment of the District Court entered 
in this case.

Opinion Below

The opinions of the District Court for the Eastern Dis­
trict of South Carolina, Charleston Division, have not yet 
been reported. A copy of each of the two opinions and of 
the judgment are attached hereto as Appendix A.

Jurisdiction

The judgment of the District Court was entered on June 
21, 1951. A petition for appeal is presented to the District 
Court herewith, to-wit, on July 20, 1951. The jurisdiction



2

of the Supreme Court to review this decision is conferred 
by Title 28, United States Code, sections 1253 and 2101(b).

The complaint in this case was filed by Negro children of 
public school age residing in School District No. 22, Claren­
don County, South Carolina, and their respective parents 
and guardians, against the public school officials of said' 
county and school district who, as officers of the State, main­
tain, operate and control the public schools for children 
residing in said district. It was alleged that defendants 
maintained certain public schools for the exclusive use of 
white children and certain other public schools for Negro 
children; that the schools for Negro children were in all 
respects inferior to the schools for white children; that the 
defendants excluded the infant plaintiffs from the white 
schools pursuant to Article XI, section 7, of the Constitution 
of South Carolina, and section 5377 of the Code of Laws of 
South Carolina of 1942, which require the segregation of 
the races in public schools; and that it was impossible for 
the infant plaintiffs to obtain a public school education equal 
to that afforded and available to white children as long as 
the defendants enforced these laws.

The complaint sought a judgment declaring the invalidity 
of these laws as a denial of the equal protection of the laws 
secured by the Fourteenth Amendment of the Constitution 
of the United States, and an injunction restraining the de­
fendants from enforcing them and from making any dis­
tinction based upon race or color in the educational oppor­
tunities, facilities and advantages afforded public school 
children residing in said district.

Defendants in their answer joined issue on this question 
and admitted that in obedience to the constitutional and 
statutory mandates separate schools were provided for the 
children of the white and colored races; and that no child 
of either race was permitted to attend a school provided for



3

children of the other race. In the Third Defense of defend­
ants ’ answer they alleged that the above constitutional and 
statutory provisions were a valid exercise of State’s legis­
lative power.

The jurisdiction of a three-judge District Court was 
invoked pursuant to Title 28, United States Code, sections 
2281, 2284, for the purpose of determining the validity of 
the provisions of the Constitution and laws of South Caro­
lina requiring segregation of the races in public schools. 
This issue was clearly raised, and was decided by uphold­
ing the validity of these provisions and by refusing to en­
join their enforcement.

The judgment in this case, one judge dissenting, stated 
that neither the constitutional nor statutory provisions 
requiring segregation in public schools were in violation of 
the Fourteenth Amendment and that plaintiffs were not 
entitled to an injunction against the enforcement of these 
provisions by these defendants. The judgment also stated 
that the educational facilities offered infant plaintiffs were 
unequal to those offered to white pupils 1 and ordered the 
defendants “ to furnish to plaintiffs and other Negro 
pupils of said district educational facilities, equipment, cur­
ricula and opportunities equal to those furnished white 
pupils.”

The decree herein is the type of order which entitles the 
plaintiffs-appellants to a direct appeal to the Supreme 
Court within the meaning of Title 28, United States Code, 
sections 1253 and 2101(b). Eichhols v. Public Service Com­
mission, 306 U. S. 268.

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment in this case: Mc-

1 This was all admitted in open court by the defendants at the outset 
of the trial.



4

Laurin v. Board of Regents, 339 U. 8. 637; Wilson v. 
Board of Supervisors, 340 U. S. 909.

Statement

At the opening of the trial, before a three-judge District 
Court as required by Title 28, United States Code, sections 
2281 and 2284, defendants admitted upon the record that 
‘ ‘ the educational facilities, equipment, curricula and oppor­
tunities afforded in School District No. 22 for colored 
pupils # # * are not substantially equal to those afforded 
for white pupils.”  The defendants also stated that they 
did “ not oppose an order finding that inequalities in respect 
to buildings, equipment, facilities, curricula, and other 
aspects of the schools provided for the white and colored 
children of School District No. 22 in Clarendon County 
now exist, and enjoining any discrimination in respect 
thereto.”

These admissions were made part of the record being 
filed as an amendment to the answer. The only issue 
remaining to be tried was the question of the constitution­
ality of the laws requiring segregation of the races in 
public education as applied to the plaintiffs.

During the trial the plaintiffs produced testimony show­
ing the extent of the physical inequality in the segregated 
schools of Clarendon County and especially School District 
No. 22. Over the objection of the plaintiffs2 the defend­
ants introduced testimony that a three per cent sales tax 
and authorization of a $75,000,000 bond issue for improve­
ment of schools had recently been adopted by the State of 
South Carolina, and that the State Educational Finance

2 On the grounds that equality within the meaning of the Fourteenth 
Amendment did not include contemplated future action.



5

Commission3 to supervise the distribution of these funds 
had just been organized and had not even set up rules or 
procedures. About a week before the trial Clarendon 
County had “ inquired”  about making an application for 
funds.

The testimony of nine expert witnesses was introduced 
by plaintiffs: two experts in the field of education who 
offered a comparison of the public schools; one expert in 
educational psychology, three experts in the respective 
fields of child and social psychology, one expert in political 
science, one expert in school administration, and one expert 
in the field of anthropology.

The uncontroverted testimony of these witnesses dem­
onstrated that the Negro schools in question were inferior 
in every material aspect to the white schools, and that sim­
ilarly the caliber of education offered to Negro pupils was 
inferior to that offered to white pupils. The testimony of 
these witnesses also established the fact that the segrega­
tion of Negro pupils in these schools would in and of itself 
preclude an equality of education offered to white pupils 
or pupils in a non-segregated school. These witnesses not 
only established their qualifications in their respective fields 
but also supported their conclusions by objective and scien­
tific authorities.

One of the experts in the field of child and social psychol­
ogy testified that he had made special studies of the recog­
nized methods of testing the effects of race and segregation 
on children. He used a test of this type on Negro school 
children including the infant plaintiffs in School District

3 It was admitted that although the school population of South Caro­
lina was approximately forty to forty-five per cent Negro there were no 
Negroes on the Commission and no Negro employees of the Commission.



6

No. 22 a few days before the trial. From his general expe­
rience in this field and the results of his tests he testified:

“ A. The conclusion which I was forced to reach was 
that these children in Clarendon County, like other 
human beings who are subjected to an obviously infe­
rior status in the society in which they live, have been 
definitely harmed in the development of their per­
sonalities ; that the signs of instability in their personal­
ities are clear, and I think that every psychologist 
would accept and interpret these signs as such.

‘ ‘ Q. Is that the type of injury which in your opinion 
would be enduring or lasting?

“ A. I think it is the kind of injury which would be 
as enduring or lasting as the situation endured, chang­
ing only in its form and in the way it manifests itself.”

These witnesses testified as to the unreasonableness of 
segregation in public education and the lack of scientific 
support for such segregation and exclusion. They testified 
that all scientists agreed that there are no fundamental 
biological differences between white and Negro school 
pupils which would justify segregation. An expert in 
anthropology testified:

‘ ‘ The conclusion, then to which I come, is differences 
in intellectual capacity or inability to learn have not 
been shown to exit as between Negroes and whites, 
and further, that the results make it very probable 
that if such differences are later shown to exist, they 
will not prove to be significant for any educational 
policy or practice.”

Another expert witness testified:

“ It is my opinion that except in rare cases, a child 
who has for 10 or 12 years lived in a community where 
legal segregation is practiced, furthermore, in a com­
munity where other beliefs and attitudes support racial 
discrimination, it is my belief that such a child will



7

probably never recover from whatever harmful effect 
racial prejudice and discrimination can wreck. ’ ’

The defendants did not produce a single expert to con­
tradict these witnesses. There were only two witnesses 
for the defendants. The Superintendent of Schools for 
District No. 22 testified as to the reasons for the physical 
inequalities between the white and Negro schools. The 
Director of the Educational Finance Commission testified as 
to the proposed operation of the Commission and the pos­
sibility of the defendants obtaining funds to improve public 
schools. The latter witness testified that from his experi­
ence as a school administrator in Sumter and Columbia, 
South Carolina, it would be “ unwise”  to remove segrega­
tion in public schools in South Carolina. On cross-examin­
ation, he admitted he had not made any formal study of 
racial tensions but based his conclusion on the fact that 
he had “ observed conditions and people in South Carolina”  
all of his life. He also admitted that his conclusion was 
based in part on the fact that all of his life he had believed 
in segregation of the races.

Constitution and Statute Involved

Article XI, section 7 of the Constitution of South Caro­
lina provides:

“ Separate schools shall be provided for children of 
the white and colored races, and no child of either race 
shall ever be permitted to attend a school provided for 
children of the other race.”

Section 5377 of the Code of Laws of South Carolina is as 
follows:

“ it shall be unlawful for pupils of one race to attend 
the schools provided by boards of trustees for persons 
of another race.”



8

Questions Presented

1. Whether a State which undertakes to provide a public 
education for its citizens can satisfy the requirements of the 
equal protection clause of the Fourteenth Amendment of 
the Constitution of the United States by providing a system 
of separate public elementary and high schools for Negroes 
and excluding all Negroes from the schools it provides for 
all other persons?

2. Whether the District Court erred in predicating its 
decision upon Plessy v. Ferguson, and in disregarding Mc- 
Laurin v. Board of Regents and principles serving as the 
basis for this and other decisions of the Supreme Court in 
conflict with the rationale of the Plessy case?

Statement of the Grounds Upon Which It Is Contended the 
Questions Involved Are Substantial

S u m m a r y

The defendants having conceded the physical inequalities 
of the segregated schools, the only question remaining in 
the case was the validity of the laws requiring the segre­
gation and exclusion of the infant plaintiffs from the only 
schools where they could obtain an education equal to that 
offered all other children. This was the only question which 
required the convening of the three-judge court.

The Supreme Court has always recognized the import­
ance of racial segregation in public education. Although 
the Supreme Court has clarified the issue as to graduate 
and professional schools, the Court has never had the 
opportunity to consider the question as to elementary and 
high schools on the basis of a full and complete record with 
the issue clearly drawn and with competent expert testi­
mony as appears in the record in this case. A clear cut 
decision on this issue will remove all doubts in the field of 
public education.



9

The majority opinion of the lower court subordinated 
the individual rights of the plaintiffs to the state’s segre­
gation policy. It was held that the Federal courts were 
powerless to interfere with the statutes of a state segregat­
ing Negroes in public education as long as equality of 
physical equipment was ordered.

The majority opinion held that the rationale of the 
decisions in Sweatt v. Painter, 339 U. S. 629 and McLaurin 
v. Board of Regents, 339 U. S. 637 could not be applied 
to elementary and high school pupils. Thus, without a 
review of this decision there will be considerable doubt in 
the minds of judges, school officials, taxpayers and pupils 
of the extent of the principles set forth in those decisions.

ARGUMENT

I

The Question Whether a, State Which Undertakes to Provide 
a Public Education for Its Citizens Can Satisfy the Re­
quirements of the Equal Protection Clause of the Four­
teenth Amendment by Providing a System of Separate 
Public Elementary and High Schools for Negroes and 
Excluding All Negroes from the Schools It Provides for 
All Other Persons Is of Great Public Importance and 
Should Be Decided by the Supreme Court in This Case.

One of the firmly recognized and established functions 
of government is the education of its citizens. In the 
United States this function has been undertaken and is 
discharged by the individual states which have established 
and maintain public educational facilities from the ele­
mentary through the graduate and professional school 
levels, and require all citizens during the greater period 
of their minority to either attend the public schools or 
obtain an education privately.



10

Although this responsibility has been assumed by the 
states individually, the educational development of the 
youth of the Nation is nevertheless a matter of great 
national concern which becomes increasingly important. 
So also is the practice, current in a broad section of the 
country, of affording a dual system of schools and a double 
standard of public education based wholly upon the race 
or color of the pupils attending.

Racially segregated public schools are legally required 
in seventeen southern states4 and the District of Columbia.5 
In all but a few of the remaining thirty-one states, segre­
gated schools are either unauthorized or are prohibited.6

A

The Supreme Court has recognized the importance of the 
issue of racial segregation in the area of public educa­
tion in cases involving educational opportunities at the

4 ALA. CONST., Art. XIV, sec. 256; ALA. CODE (1940), Title 52, 
sec. 93; ARK. STAT. ANN. (1947), sec. 80-509; DEL. CONST., Art. 
X, sec. 2; DEL. REV. CODE (1935), Ch. 71, Art. 1, sec. 2631, Art. V, 
sec. 2684; FLA. CONST., Art. 12, sec. 12; FLA. STAT. ANN., sec. 
228.09, 230.23; GA. CONST., Art. VIII, sec. 1; GA. CODE ANN. (1947 
Cum. Supp.) sec. 32-909, 32-937; KY. CONST., sec. 187; KY. REV. 
STAT. (1948), sec. 158.020; LA. CONST. ANN. (Dart 1947 Supp.), 
Art. 12, sec. 1; MD. CODE ANN. (1939), Art. 77, sec. I l l ,  192 to 193; 
MISS. CONST., Art. 8, sec. 207; MISS. CODE ANN. (1942) sec. 6276; 
MO. CONST., Art. IX, sec. 1; MO. REV. STAT. (1939) sec. 10349, 10488; 
N. C. CONST., Art. IX, sec. 2; N. C. GEN. STAT. (1943), sec. 115-2, 
115-3, 115-30, 115-66, 115-97; OKL. CONST., Art. XIII, sec. 3; OKL. 
STAT. (Supp. 1949), Title 70, sec. 5-1 to 5-15; S. C. CONST., Art. 11, 
sec. 7; S. C. CODE (1942), sec. 5377; TENN. CONST., Art. 11, sec. 12; 
TENN. CODE ANN. (Williams 1934) sec. 2377, 2393.9, 11395 to 11397; 
TEX. CONST., Art. VII, sec. 7; TEX. ANN. CIV. STAT. (Vernon 1947), 
Art. 2755, 2900, 2719, 2819; VA. CONST. Art. IX, sec. 140; VA. CODE 
(1950), sec. 22-221; W. VA. CONST., Art. XII, sec. 8; W. VA. CODE 
ANN. (1943), sec. 1775, 1777.

5D €. CODE (1940), Title 31, Sec. 1110 to 1113.
6 Reddick, L. D., The Education of Negroes in States Where Separate 

Schools Are Not Legal, The Journal of Negro Education, Summer 1947, 
Vol. XVI, No. 3, p. 296.



11

graduate and professional school levels.7 The same basic 
questions arising at the elementary and secondary levels 
are no less important. In fact, the elementary and secon­
dary schools and racial segregation obtaining in them, 
exert a far greater effect on a far larger number of per­
sons at a far more important stage of the person’s life.

This case and Carr v. Corning, 182 F. (2d) 14 (D. C.), are 
the only two cases decided in several decades in which a 
direct attack was made upon the constitutional validity of 
racial segregation in public education at the elementary 
and secondary school levels. The importance of the issues 
here presented is emphasized by the fact that each of these 
two cases was decided by a Federal Court and in each the 
validity of such segregation was sustained by the bare 
majority of a single vote.

The course of decision taken by the Supreme Court in 
recent cases involving segregated public education at the 
professional and graduate school levels,8 the strong dis­
sents registered in this case9 and in Carr v. Corning,10 the 
Supreme Court’s refusal in Sweatt v. Painter11 to reaffirm 
the doctrine of Plessy v. Ferguson, 163 U. S. 537, and the 
weakening and disappearance of that doctrine in other 
areas, combine to create serious and widespread question as 
to the legality and the duration of segregated public elemen­

7 Wilson v. Board of Supervisors, 340 U. S. 909, and McLaurin V. 
Board of Regents, 339 U. S. 637, were reviewed on direct appeal. Sweatt 
v. Painter, 339 U. S. 629, was reviewed on certiorari. Cf. Sipuel v. 
Board of Regents, 332 U. S. 631, and Missouri ex rel. Gaines V. Canada, 
305 U. S. 337.

8 Wilson v. Board of Supervisors, 307 U. S. 909; McLaurin v. Board 
of Regents, 339 U. S. 637; Sweatt v. Painter, 339 U. S. 629. Cf. Sipuel 
v. Board of Regents, 332 U. S. 631; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337.

9 Appendix A.
10 182 F. (2d) at 22-35.
u  339 U. S. at 335-336.



12

tary and high schools. This doubt the Supreme Court 
should settle by a definitive decision as to whether racial 
separation in public elementary and secondary schools is 
a constitutionally permissible pattern which may serve to 
guide the future endeavors of scholars and school officials.12

B .

Approximately 10,000,000 Negroes, or 77% of all Negroes 
in the United States, live in the southern region where a 
pattern of educational segregation is sanctioned and en­
forced by law. Admittedly, this is the poorest section of 
the country. This condition is overwhelmingly due to the 
maintenance of segregation and a caste system which rele­
gates all Negroes to a position lower than the lowest white. 
This is the area of the country least able to afford either 
the financial or the educational hazards created by a dual 
system of education. As a result, Negroes have been vic­
timized throughout the years by grossly discriminatory 
practices designed to conserve for whites the maximum 
possible benefit of educational resources. The courts in 
this area have been faced with a variety of litigation as to 
the constitutional validity of such segregation, the defini­
tion and determination of the segregated group, the appor­
tionment of public funds between the separated school 
systems, the provision of facilities, curricula and teachers, 
and the numerous other complex problems which such seg­
regation has created.13 After more than three-quarters of

12 8 Wash, and Lee L. Rev. 54 (1951) ; 13 Ga. Bar. J. 357 (1951) ; 4 
Van. L. Rev. 555 (1951) ; 24 Temple L. Q. 222 (1950) ; 3 U. Fla. L. Rev. 
358 (1950); 13 Ga. Bar J. 88 (1950); 36 Va. L. Rev. 797 (1950); 3 
So. Car. L. Q. 71 (1950) ; 30 B. U. L. Rev. 565 (1950) ; 1950 Washington 
U. L. Q. 594 (1950) ; 24 So. Cal. L. Rev. 74 (1950) ; 17 Brooklyn L. Rev. 
134 (1950) ; 30 Neb. L. Rev. 69 (1950) ; 5 Miami L. Rev. 150 (1950) ; 39 
Ga. L. J. 145 (1950) ; 26 Notre Dame Law. 81 (1950) ; 26 Notre Dame 
Law. 134 (1950); 3 Ala. L. Rev. 181 (1950).

13 See the cases collected in Appendix B.



13

a century of judicial effort to attain an equality of educa­
tional opportunity within the framework of racial segrega­
tion, the widespread inequalities and discriminations yet 
existent demonstrate the futility of such a course.

During the 1944-45 school session, the value of elementary 
school property in eight southern states14 was $867,960,280. 
Of this sum, $786,662,302 was invested in schools for 
3,510,540 white children and $81,297,978 in schools for 
1,551,279 Negro children. The per capita value of school 
property was $224.08 for white pupils and $52.40 for Negro 
pupils. The investment for white pupils was 427.6% more 
than the investment for Negro pupils.15 For the same 
school session, the average current expenditure in seven 
southern states16 was $73.67 per white pupil enrolled and 
$32.46 per Negro pupil enrolled. The average expenditure 
per white pupil was 227 % greater than the average expendi­
ture per Negro pupil.17

For the 1943-44 school session, ten southern states18 spent 
$43,448,777 for public school transportation, of which only 
$1,349,834, or 3.1% was spent for Negro pupils. The expen­
diture was $6.11 per white pupil and only $0.59 per Negro 
pupil.19 For the 1944-45 school session, the average salary 
paid white teachers in the seventeen southern states and 
the District of Columbia was $1,513, and the average paid

14 The eight states: Alabama, Florida, Georgia, Maryland, Mississippi, 
North Carolina, South Carolina and Texas.

15 Washington, Availability of Education for Negroes in the Elemen­
tary School, The Journal of Negro Education, Howard University Press, 
Summer Issue, Vol. XVI, 1947, p. 446.

16 The seven states: Alabama, Arkansas, Florida, Georgia, Louisiana, 
North Carolina, and South Carolina.

17 Washington, op. cit. supra note 15, at 447.
18 The ten states: Alabama, Arkansas, Florida, Georgia, Maryland, 

Mississippi, North Carolina, Oklahoma, South Carolina and Texas.
19 Statistics of State School Systems, 19Jf3-hU, Department of Educa­

tion, Government Printing Office, passim.



14

Negro teachers was $1,187.28, a differential of $326.29. The 
average salary paid white teachers was 127.5% greater than 
the average salary paid Negro teachers.20

Other consequences of public school segregation are sim­
ilarly manifested :21 * *

“ In the 17 states and the District of Columbia where 
separate schools are maintained by law, some 494,207 
(2.8%) of the native whites, and 569,378 (11.7%) of 
the Negroes in this age group had not attended school 
for even one year; and 2,078,998 (11.6%) of the native 
whites and 1,802,770 (37.0%) of the Negroes were func­
tional illiterates. In other words, there were four 
times as many Negroes as native whites in proportion 
to population who had not had at least a year of 
schooling; and three times as many Negroes who were 
functional illiterates.

# # # # #

“ In the 17 states and the District of Columbia the 
median years of schooling for the white population 
was 8.4; for Negroes the median was 5.1; with a range 
for the whites running from 7.9 in Kentucky to 12.1 
in the District of Columbia; and for Negroes from 
3.9 in Louisiana to 7.6 in the District of Columbia. 
Some 13.2 per cent of the white population had com­
pleted four years of high school as compared with 
only 2.9 per cent of the Negroes; 12.1 per cent of the 
whites had had some college education, as compared 
with only 2.5 per cent of the Negroes; and 4.7 per cent 
of the white population had had four or more years of 
college as contrasted with only 1.1 per cent of the 
Negroes. There were, therefore, four times as many 
whites as Negroes with a high school or college edu­

20 Statistics of State School Systems, 19U3-19UU, Department of Educa­
tion, Government Printing' Office, passim; “ The Journal of Negro Educa­
tion, Howard University Press, Vol. XVI, Summer 1947, passim.

21 Thompson, The Availability of Education in the Negro Separate
School, The Journal of Negro Education, Howard University Press, Vol.
XIV, Summer 1947, p. 264.



15

cation in these states which require racial segregation 
by law. ’ ’

Though in much smaller degree, whites as well as Ne­
groes suffer from lowered educational standards. As it has 
been authoritatively reported.22

“ Segregation lessens the quality of education for 
the whites as well. To maintain two school systems 
side by side—duplicating even inadequately the build­
ings, equipment, and teaching personnel—means that 
neither can be of the quality that would be possible 
if all the available resources were devoted to one sys­
tem, especially when the States least able financially 
to support an adequate educational program for their 
youth are the very ones that are trying to carry a 
double load.”

The adverse effects of racial segregation in public edu­
cation are not confined to the minority group or to the 
local community. The whole nation suffers from the under­
development of a vast segment of its human resources. In 
the most critical period of June-July, 1943, when the nation 
was crying for manpower, 34.5% of the rejections of Negroes 
from the armed forces were for educational deficiency. 
Only 8% of the white selectees rejected for military service 
failed to meet the educational standards.23 The official 
War Department report on the utilization of Negro man­
power in the postwar Army says that “ in the placement of 
men who were accepted, the Army encountered considerable 
difficulty. Leadership qualities had not been developed 
among the Negroes, due principally to environment and * 28

22 Higher Education for American Democracy, Report of the Presi­
dent’s Commission on Higher Education, Government Printing Office, 
Washington, D. C., 1947, Vol. I, p. 34.

28 The Black and White of Rejections for Military Service, Montgom­
ery, Ala., American Teachers Association, 1944, p. 5.



16

lack of opportunity. These factors had also affected devel­
opment in the various skills and crafts.”  24

C
The record in this case incontrovertibly demonstrates 

that the segregated school irreparably harms the pupil. 
Unlike many forms of racial segregation, where the citizen 
may by exercise of his own will either encounter or avoid 
the situations of which segregation is a part, he has little 
freedom of choice in this area. The legal alternatives to a 
public school education usually being economically unavail­
able, he is forced by compulsory school attendance laws to 
go to the segregated schools and there be subjected to the 
evils which segregation invariably produces.

State ordained segregation is a particularly invidious 
policy which needlessly penalizes Negroes, demoralizes 
whites and tends to disrupt our democratic institutions.

Segregation prevents both the Negro and white pupil 
from obtaining a full knowledge and understanding of the 
group from which he is separated. It has been scientific­
ally established that no child at birth possesses either an 
instinct or even a propensity toward feelings of prejudice 
or superiority. These prejudices, when and if they do 
appear, are but reflections of the attitudes and institutional 
ideas evidenced by the adults about him.25 26 * The very act of 
segregation tends to crystallize and perpetuate group isola­
tion, and therefore serves as a breeding ground for 
unhealthy attitudes.28

24 Report of Board of Officers on Utilization of Negro Manpower in 
the Post-War Army (February, 1946), p. 2.

25 Park, The Basis of Prejudice, The American Negro, the Annals, 
Vol. 140, pages 11-20 as cited by Frazier, The Negro in the United 
States (1949), at 668; Faris, The Nature of Human Nature, 354, chap­
ter on The Natural History of Race Prejudice (1937).

26 Laster, Race Attitudes in Children, 48 (1949); Ware, The Role of
the Schools in Education for Racial Understanding, 13, The Journal of



17

A feeling of distrust for the minority group is fostered 
in the community at large—a psychological atmosphere 
which is most unfavorable to the acquisition of a proper 
education. This atmosphere, in turn, tends to accentuate 
imagined differences between Negroes and whites.* 27

Qualified educators, social scientists, and other experts 
have expressed their realization of the fact that “ separate”  
is irreconcilable with “ equality.” 28 There can be no 
equality since the very fact of segregation establishes a 
feeling of humiliation and deprivation to the group con­
sidered inferior.29

Probably the most irrevocable and deleterious effect of 
segregation upon the minority group is that it imposes a 
badge of inferior status upon the segregated group.30 This

Negro Education (1944) ; Moten, What the Negro Thinks (1929) ; Long, 
Psychogenic Hazards of Segregated Education of Negroes, 4 The Jour­
nal of Negro Education, 343 (1935). For an exhaustive study relating 
to the reaction, of Negroes to discrimination and how their reactions 
affect their relations with whites, see Rose, The Negro’s Morale: Group 
Identification and Protest (1949) ; Johnson, Patterns of Segregation, II, 
Behavior Response of Negroes to Segregation and Discrimination (1943).

27 Murdal, An American Dilemma, 625 (1944) ; “ But they are isolated 
from the main body of whites, and mutual ignorance helps reinforce 
segregative attitudes and other forms of race prejudice.”

28 Id. at page 580; Johnson, op. cit. supra note 26, at 4, 318; Mangurn, 
The Legal Status of the Negro (1947) ; Report of the President’s Com­
mittee on Civil Rights, To Secure These Rights (1947) ; Report of the 
President’s Commission on Higher Education, Higher Education for 
American Democracy, (1947) ; Deucher and Chein, The Psychological 
Effects of Enforced Segregation: A Survey of Social Opinion, 26 Journal 
of Psychology 259-287 (1948).

29 McWilliams, Race Discrimination and the Law, 9 Science and So­
ciety No. 1 (1945) ; 56 Yale L. J. 1051, 1052, 1059 (1947) ; Bond, Educa­
tion, Education of the Negro in the American Social Order, 385 (1934) ; 
Moton, op. cit. supra note 26, at 99; Bunche, Education in Black and 
White, 5 Journal of Negro Education 351 (1936) ; Long, op. cit. supra 
note 26, at 336-343; Henrich, The Psychology of Suppressed People, 52 
(1937) ; Dollard, Caste and Color in a Southern Town, 269 441 (1937) ; 
Young, America’s Minority Peoples, 585 (1932).

30 Smythe, The Concept of “Jim Crow,”  27 Social Forces 48 (1948): 
“  ‘Jim Crow’ as used in a sociological context thus indicates for a specific



18

badge of inferior status is recognized not only by the minor­
ity group, but by society at large.* 31 A  definitive study of 
the scientific works of contemporary sociologists, historians 
and anthropologists conclusively documents the proposition 
that the intent and result of segregation are the establish­
ment of an inferiority status. And a necessary corollary 
to the establishment of this value judgment is the depriva­
tion suffered by both the minority and majority groups.32
social group the Negro’s awareness of his badge of inequality which he 
learns through the operation of a ‘Jim Crow’ concept in his every day 
living. This pattern of existence has become so much a part of the 
nation’s social structure that it has become synonymous with the words 
‘segregation’ and ‘discrimination’ and at times when ‘Jim Crow’ is 
indexed some authors have indexed it as a cross reference for these 
terms.”

31 Myrdal, op. cit. supra note 27, at 643. “ Segregation and discrim­
ination have had material and moral effects 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 corrob­
orated by many white Southern and Northern observers. Throughout 
this book we have been forced to notice the low economic, political, legal 
and moral standards of Southern whites—kept low because of discrim­
ination against Negroes and because of obsession with the Negro prob­
lem. Even the ambition of Southern whites is stifled partly because, 
without rising far, it is so easy to remain ‘superior’ to the held-down 
Negroes * * * ”

32 Baruch, Glass House of Prejudice, 66-76 (1946); Gallagher, Ameri­
can Caste and the Negro College 94 (1938); Wherever possible, the 
caste line is to keep all Negroes below the level of the lowest whites. 
This is the first and deepest meaning of “ separate but equal” . Page 105: 
“ Not the least important aspect of the caste system is its results in 
seriously malconditioning the individuals whose psychological growth is 
strongly affected by a caste divided society. These influences are not 
limited to the Negro caste. They stamp themselves upon the dominant 
caste as well” ; La Farge, The Race Question and the Negro 159 (1945) : 
“ Segregation, as a compulsory measure based on race, imputes essen­
tial inferiority to the segregated group. Segregation, since it creates 
a ghetto, brings in the majority of instances, for the segregated group, 
a diminished degree of participation in those matters which are ordi­
nary human rights, such as proper housing, educational facilities, police 
protection, legal justice, employment, * * * Hence it works objective 
injustice. So normal is the result for the individual that the result is 
rightly termed inevitable for the group at large” ; James, The Philos-



19

D
The unanimous conclusion of scholars and students who 

have studied the problem is that racial segregation in public 
education must be eliminated.

Recognizing that segregation constitutes a menace to 
American freedom and is indefensible, the President’s Com­
mittee on Civil Rights unequivocally recommended its 
elimination from American life : 33

“ The separate but equal doctrine has failed in three 
important respects. First, it is inconsistent with the 
fundamental equalitarianism of the American way of 
life in that it marks groups with the brand of inferior 
status, Secondly, where it has been followed, the results 
have been separate and unequal facilities for minority 
peoples. Finally, it has kept people apart despite in­
controvertible evidence that an environment favorable 
to civil rights is fostered whenever groups are per­
mitted to live and work together.”

ophy of William James 128 (1925) ; “ Properly speaking, a man has as 
many social selves as there are individuals who recognize him and carry 
an image of Mm in their mind. To wound any one of these images is 
to wound him” ; Loeseher, The Protestant Church and the Negro (1948) ; 
“ (Segregation) is, in itself, an implication of inferiority, an inferiority 
not only of status but of essence, of being” ; Thompson, “ Mis-Edueation 
for Americans” ; 36 Survey Graphic 119 (1947) : “ Education for segre­
gation, if it is to be effective must perpetuate beliefs which define the 
Negro’s status as inferior, which emphasize superficial differences, 
or which in any way suggest that the Negro is a lower order of being 
and therefore should not be expected to be treated like a white person.” 
Page 120: “ Mis-education for segregation has deleterious effects on both 
Negroes and whites. It requires mental and emotional gymnastics on 
both sides to adjust (or attempt to adjust) to the many logical and 
ethical contradictions of segregation. The situation is crippling to the 
personalities of both Negro and white Americans.”

83 Report of the President’s Commission on Civil Rights, To Secure 
These Rights, U. S. Government Printing Office, 1947, p. 166.



20

Likewise, the President’s Commission on Higher Educa­
tion, in its report on education in the United States, said :34

“ The time has come to make public education at all 
levels equally accessible to all, without regard to race, 
creed, sex or national origin.”

II

Statutory Classifications Based Solely on Race or Color 
Violate the Federal Constitution

A

R ace or C olor Can n o t  B e M ade th e  B asis oe a S tatutory

Classification

In South Carolina, the school in District No. 22 which a 
child is permitted to attend depends solely upon his race or 
color. The Supreme Court, in recent decisions, has indi­
cated that statutes which affect individuals according to 
their race or ancestry are, in the absence of an overwhelm­
ing public necessity, invalid. Takahashi v. Fish & Game 
Commission, 334 U. S. 410; Korematsu v. United States, 
323 U. S. 214; and Hirabayashi v. United States, 320 U. S. 
81, wherein the Court said:

“ Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free peo­
ple whose institutions are founded upon the doctrine 
of equality. For that reason, legislative classification 
. . . based on race alone has often been held to be a 
denial of equal protection.”  (p. 100)

In Nixon v. Herndon, 273 U. S. 536, Mr. Justice Holmes

34 Report of the President’s Commission on Higher Education, Higher 
Education for American Democracy, U. S. Government Printing Of­
fice, 1947, p. 38.



21

stated for the Court that statutory classifications can never 
be based on color:

“ States may do a great deal of classifying that it is 
difficult to believe rational, but there are limits, and 
it is . . . clear . . . that color cannot be made the basis 
of a statutory classification.”  (p. 541)

The above decisions have been made without regard to 
the equal protection clause of the Fourteenth Amendment, 
thus indicating that the citizen’s right to have his rights, 
obligations, and duties to the state determined without 
regard to his race or color is a fundamental right essential 
to our democratic society.35 State statutes must in addition

35 It might be argued by the proponents of segregated school systems 
that since seventeen states have laws which regulate the use of some 
or all of the public educational facilities on the basis of race or color, 
the problem is essentially one for the legislative judgment and that 
federal courts should not interfere. The proponents might attempt to 
place reliance on the Supreme Court’s examination on several occasions 
of the practices and experiences of the forty-eight states and other 
jurisdictions which have adopted Anglo-American jurisprudence, to see 
whether a right being claimed as fundamental is generally protected 
by the states. See for example, Adamson v. California, 332 U. S. 46; 
In Re Oliver, 333 U. S. 257. But such examination in the instant case 
is not at all relevant, and, in any event, if made, would have to exclude 
those states which have a history of unequal treatment to Negroes in 
educational facilities, political franchise, and other opportunities and 
rights normally available to citizens of a state.

In the first place, the Court has already indicated that governmental 
classifications based upon race and color are arbitrary and a denial of 
due process of law. Korematsu v. United States, 323 U. S. 214; Ex 
Parte Endo, 323 U. S. 282. These cases were under due process clause 
of the Fifth Amendment, but certainly “ it ought not to require argu­
ment to reject the notion that due process of law meant one thing in the 
Fifth Amendment and another in the Fourteenth.” Adamson v. Califor­
nia, supra, at 59.

Secondly, the plaintiff claims protection under the equal protection 
clause of the Fourteenth Amendment and, as indicated above, the in­
tention of this clause was to afford the same rights to Negroes as were 
afforded to whites by a state.

Finally, the experiences in the southern states in determining whether 
the right to be free of laws imposing burdens or denying privileges based



22

meet the standards of the equal protection clause of the 
Fourteenth Amendment. An examination of the relevant 
data, including the legislative history, supports plaintiffs’ 
contention that the purpose of the framers of the Fourteenth 
Amendment in including therein the equal protection clause 
was to require state action affecting Negroes to be meas­
ured by whether white persons were being afforded the 
same right, privilege or advantage which the state was 
denying to Negroes. In othqr words, if a particular state 
affords to its white citizens a particular right or privilege,. 
the equal protection clause requires that the same right be

upon race or ancestry is fundamental to a free society, must be dis­
counted in determining- the meaning of the Fourteenth Amendment. In 
the first place, those states which have traditions and practices similar 
to South Carolina in enforcing racial discrimination refused, in 1866 
and 1867, to ratify the Fourteenth Amendment. Therefore, their prac­
tice and conduct thereunder is not valid evidence as to the meaning or 
scope of the Amendment which they have consistently opposed. See 
Fairman & Morrison, Does The Fourteenth Amendment Incorporate The 
Bill of Rights? 2 Stanford L. Rev. 5, 90-95 (1949) South Carolina 
has had a long history, culminating in the events which led to the deci­
sion in Rice v. Elmore, 165 F. (2d) 387 (CCA 4 1947), cert, denied 
333 U. S. 875, in denying to its Negro citizens the right to exercise 
effectively their voting rights specifically guaranteed by the Fifteenth 
Amendment. The basis of the argument that matters are within the 
legislative judgment and therefore if a person wishes to change a 
particular legislation his arguments embodying economic, psychological 
and social data should be addressed to the legislature rather than to 
the Court necessarily presupposes that the legislature is subject to 
the popular will by use of the ballot. In a state such as South Carolina, 
this right has not been, and presently is not, freely available to Negroes, 
since state officials for many years have attempted to use various means, 
most of them already declared illegal by the Supreme Court, to prevent 
the free exercise of the ballot. Moreover, the only way that a group is 
able to persuade other groups that laws affect them unjustly or are 
injurious to the whole society is through discussion with the other 
groups. But racial segregation laws usually create conditions which 
tend to prevent the normal processes essential to free and democratic 
associations from operating and therefore those processes that ordinarily 
might be relied upon to protect individuals against arbitrary and un­
reasonable governmental action are absent. See United States V. Caro­
tene Products, 304 IJ, S. 144, footnote 4,



23

granted to Negro citizens on the same basis. See Fairman 
& Morrison, Does The Fourteenth Amendment Incorporate 
The Bill of Rightsf 2 Stanford L. Rev. 5, 138-139 (1949). 
Thus, even if there is a rational basis for the racial classi­
fication used by South Carolina to determine whether chil­
dren should go to one school or another in District No. 22, 
the, statute is necessarily unconstitutional.

B

T here  Is No R easonable B asis for A llocating  E ducational  
F acilities on th e  B asis of R ace

The South Carolina statute prohibiting Negro children 
from attending the schools set aside for white children has 
no rational basis, and in fact has injurious effects and pre­
vents the accomplishments of the very end of public educa­
tion. Even wbyn dealing with legislation involving economic 
matters, where the Court has permitted certain classifica­
tions resulting in distinctions and burdens on one group 
and benefits to another, the Court has demanded that there 
be some cognate relationship between the classification and 
the end sought to be accomplished, and where the differences 
are not reasonably perceptible, or are irrelevant to the 
legislative end, the classifications, even in economic mat­
ters, have been held to violate the equal protection clause. 
Quaker City Cab Co. v. Penn., 277 IT. S. 389; Southern Rail­
road Co. v. Green, 216 U. S. 400; Mayflower Farms v. Ten 
Eyck, 297 IT. S. 266. Where the legislation attempts to 
regulate personal rights, the test applied by the Court has 
been more stringent. See Truax v. Raich, 229 U. S. 33; 
Skinner v. Oklahoma, 316 U. S. 735.

The South Carolina segregation statute is invalid even 
under the more lenient standard, since there is no reason­
able connection between race and the educational aims



24

sought to be achieved by a state in providing public educa­
tion. The purpose of public education is to bring about a 
more intelligent citizenry and to develop individuals for 
democratic living. Laws which attempt to divide groups 
for public school purposes, according to race, religion or 
ancestry are at odds with the democratic ideals to which 
this nation is committed.

“ The public school is at once the symbol of our 
democracy and the most persuasive means for promot­
ing our common destiny. In no activity of the State 
is it more vital to keep out diversive forces than in the 
schools. . . . ”  Mr. Justice Frankfurter concurring in 
-McCollum v. Board of Education, 332 U. S. 203, 212, 231.

Moreover, there is testimony in the record, not controverted 
by South Carolina, that the effect of a segregated school 
system is to make the white children feel superior and the 
Negro children feel inferior. The rigid pattern of segrega­
tion also prevents the voluntary association fostering intel­
lectual commingling of people, which the Court has held 
is a constitutional right. In McLaurin v. State Board of 
Regents, 339 IT. S. 637, speaking for a unanimous court, 
Mr. Chief Justice Vinson stated:

“ There is a vast difference—a Constitutional differ­
ence—between restrictions imposed by the state which 
prohibit the intellectual commingling of students, and 
the refusal of individuals to commingle where the state 
presents no such bar.”

South Carolina did not and cannot defend its legislation 
on the basis that race somehow affected the ability to receive 
education, or to achieve any of the ends of education. 
Indeed, the plaintiffs introduced evidence to show that 
race and color of skin were completely irrelevant. The 
evidence is in accordance with all the scientific investiga­
tions on the subject, Eose, America Divided: Minority



25

Group Relations in the United States (1948); Montague, 
Man’s Most Dangerous Myth—The Fallacy of Race, 188 
(1945); American Teachers Association, The Black & White 
of Rejections for Military Service 5 (1944) at 29; Klineberg, 
Negro Intelligence and Selective Migration (1935); Peter­
son & Lanier, Studies in the Comparative Abilities of Whites 
and Negroes, Mental Measurement Monograph (1929); 
Clark, Negro Children, Educational Research Bulletin 
(1923); Klineberg, Race Differences, 343 (1935).

C

S egregation S tatutes Can n o t  B e U ph eld  on t h e  B asis 
T h a t  T h e y  A re N ecessary to P reserve P ublic

P eace and  Order

The court below attempted to justify the South Carolina 
segregated school system on the basis that otherwise there 
might be breaches of public order and that the segregated 
pattern had been existing in South Carolina for over one 
hundred years. The fact that for one hundred years or 
more constitutional rights of a large part of the citizens of 
South Carolina have been violated is no basis for defend­
ing the continuance of the violation. It has been repeatedly 
held by the Supreme Court that the other reason offered 
by the lower court—preservation of public order—does not 
afford a justification for the application of segregation 
statutes. In Buchanan v. Warley, 245 U. S. 60, the State 
of Kentucky attempted to define the ordinance segregating 
whites and Negroes into separate racial areas on the ground 
that otherwise riots and disorder might result. The 
Supreme Court summarily dismissed such an argument with 
this statement:

“ It is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts.



26

Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights created 
or protected by the Federal Constitution.”  (p. 81)

The Supreme Court recently reaffirmed the principle that 
the preservation of public peace and good order does not 
suffice to clothe with constitutionality government action 
which results in classification based upon race. Shelley v. 
Kraemer, 334 U. S. 1.

Ill

The Majority of the Lower Court Erred in Refusing to
Follow the Applicable Decisions of the Supreme Court

Judicial expositions sustaining the constitutional validity 
of the “ separate but equal”  theory of public education rest 
principally upon the decision of the Supreme Court in 
Plessy v. Ferguson, 163 U. S. 537, and cases which without 
critical analysis have applied its doctrine in the area of 
public education.

In Plessy v. Ferguson, supra, the majority of the Supreme 
Court held that the application to an intrastate passenger 
of a Louisiana statute requiring the segregation of white 
and Negro passengers did not violate the Fourteenth 
Amendment. The case was decided upon pleadings which 
assumed the possibility of attainment of a theoretical equal­
ity within the framework of racial segregation rather than 
on a full hearing and evidence which would have established 
the inevitability of discrimination under a system of segre­
gation. The majority opinion discussed and relied on Rob­
erts v. City of Boston, 5 Cush. (Mass.) 158, which was 
decided almost twenty years before the adoption of the 
Fourteenth Amendment. This Amendment was designed 
and intended to settle the very diversity of opinion,—so 
pronounced in 1849 when the Roberts case, supra, was



27

decided—as to the reasonableness of legal distinctions based 
on race or color. The famous dissenting opinion of Mr. 
Justice Harlan in the Plessy case, supra, stood as a chal­
lenge to the majority conclusion even when its position in 
the law seemed firmly secure, and time and experience have 
demonstrated the falsity of the antebellum justifications 
urged in the Roberts case, supra, and of the bases suggested 
by the majority of the Court in the Plessy case, supra.

In neither of the two decisions of the Supreme Court 
relating to racial segregation in public elementary or high 
schools lias the holding in Plessy v. Ferguson, supra, been 
reexamined or seriously challenged. In Cummings v. Board 
of Education, 175 U. S. 528, suit was brought. principally 
to obtain an injunction against continued operation of a 
white high school on the ground that no school was being 
operated for Negroes similarly situated. The Court’s deci­
sion established the impropriety of the remedy invoked 
and denied the relief sought. The validity of segregation 
was not in issue; plaintiffs not only did not raise such 
issue, but acquiesced in the use of taxes levied to support 
segregated schools at the elementary and intermediate 
grammar school levels. In Gong Lum v. Rice, 275 U. S. 78, 
the plaintiff, a child of Chinese descent, asserted a right not 
to be classified for school purposes as a colored person 
and required to attend the Negro school. The validity of 
racial segregation in the public schools there involved was 
not raised by the plaintiff who, rather, affirmed its validity 
and insisted upon being classified as white and admitted 
to a white school.36 86

86 It is true that Mr. Chief Justice Taft, in discussing- the issue, said: 
“ Were this a new question it would call for very full argument and 
consideration, but we think that it is the same question which has been 
many times decided to be within the constitutional power of the State 
Legislature to settle without intervention of the Federal Courts under 
the Federal Constitution.” (275 U.S. at 85) Therefore, even if this



The decisions of the Supreme Court in the area of grad­
uate and professional education have not supported the 
doctrine of the Plessy case, supra. In Missouri ex rel 
Gaines v. Canada, 305 U. S. 337, the only question involved 
was whether a qualified Negro applicant could be excluded 
from the only state-supported law school and exiled to 
another state to receive a legal education. In holding in 
the negative, the Court, while repeating the doctrine of 
Plessy v. Ferguson, supra, neither examined nor applied it. 
In Sipuel v. Board of Regents, supra, where the Court held 
that a Negro applicant was entitled to receive a legal edu­
cation within the state as soon as it was afforded to appli­
cants of any other group, the doctrine of Plessy v. Ferguson, 
supra, was neither raised, examined, repeated nor applied. 
In Fisher v. Hurst, 333 U. S. 147, the same case, supra, the 
Court denied an original writ of mandamus to compel com­
pliance with its mandate by admission to the state’s law 
school on the grounds that the original Sipuel case had 
specifically not raised the issue of the validity of the segre­
gation statutes and that procedurally the question could 
not be considered on the petition for writ of mandamus.

The majority opinion of the District Court in this case 
upheld the validity of the provisions of the Constitution 
and Laws of South Carolina requiring segregation of the 
races on the following grounds: (1) segregation of the races 
in public schools “ so long as equality of rights is preserved 
is a matter of legislative policy for the several states, with 
which the federal courts are powerless to interfere.”  
(italics ours); (2) subject to the observance of the funda­
mental rights and liberties guaranteed by the Federal Con­
stitution, each state is free to determine howr it shall exer-

decision is construed as raising the issue of the validity of school segre­
gation statutes, it is clear that the doctrine was not examined and that 
Plessy v. Ferguson, supra, was relied upon without question.



29

cise its police power, i.e., the power to legislate with respect 
to the safety, morale, health and general welfare; (3) the 
decisions in Plessy v. Ferguson, supra, Cummings v. Board 
of Education, supra, and Gong Lum v. Rice, supra, hold 
that as long as equality is furnished, segregation of the 
races in public schools is not unconstitutional and these 
cases are controlling in the instant case; (4) that neither 
Sweatt v. Painter, 339 U. S. 629, McLaurin v. Oklahoma 
State Regents, supra, nor McKissick v. Carmichael, 187 F. 
2d 949, can be applied to this case because the Siveatt case, 
supra, did not overrule Plessy v. Ferguson, supra, and both 
the Sweatt case, supra, and the McKissick case, supra, were 
decided on the question of equality, and the McLaurin case, 
supra, “ involved humiliating and embarrassing treatment 
of a Negro graduate student to which no one should have 
been required to submit. Nothing of the sort is involved 
here” ; (5) there is a difference between education on the 
graduate level and on lower levels of education.

The majority opinion held that the Siveatt case, supra, 
did not apply to this case because the decision in the Sweatt 
case, supra, was based upon the inequality of the “ educa­
tional facilities”  offered the w'hite and Negro law students. 
The opinion also held that: “ McLaurin v. Oklahoma State 
Regents involved humiliating and embarrassing treatment 
of a Negro graduate student to which no one should have 
been required to submit. Nothing of the sort is involved 
here. ’ ’ To the contrary, the record in this case shows that 
the injury to the plaintiffs in this case was not only humili­
ating and embarrassing but was even more harmful than in 
graduate education. The uncontradicted testimony in this 
record brings this case clearly within the rationale of the 
McLaurin case, supra.

Dr. Kenneth Clark, an expert in the fields of social and



30

child psychology who tested the infant plaintiffs and other 
Negro school children in District No. 22, testified:

“ A. The conclusion which I was forced to reach was 
that these children in Clarendon County, like other 
human beings who are subjected to an obviously infe­
rior status in the society in which they live, have been 
definitely harmed in the development of their person­
alities ; that the signs of instability in their personalities 
are clear, and I think that every psychologist would 
accept and interpret these signs as such.

“ Q. Is that the type of injury which in your opinion 
would be enduring or lasting!

“ A. I think it is the kind of injury which would be 
as enduring or lasting as the situation endured, chang­
ing only in its form and in the way it manifests itself.”

Dr. David Krech, another psychologist, testified:

“ • . . Legal segregation, because it is legal, because 
it is obvious to everyone, gives what we call in our 
lingo environmental support for the belief that Negroes 
are in some way different from and inferior to white 
people, and that in turn, of course, supports and 
strengthens beliefs of racial differences, of racial infe­
riority. I would say that legal segregation is both an 
effect, a consequence of racial prejudice, and in turn 
a cause of continued racial prejudice, and insofar as 
racial prejudice has these harmful effects on the per­
sonality of the individuals, on his ability to earn a 
livelihood, even on his ability to receive adequate medi­
cal attention, I look at legal segregation as an extremely 
important contributing factor. May I add one more 
point. Legal segregation of the educational system 
starts this process of differentiating the Negro from 
the white at a most crucial age. Children, when they 
are beginning to form their views of the world, begin­
ning to form their perceptions of people, at the very 
crucial age they are immediately put into the situation 
which demands of them, legally, practically, that they 
see Negroes as somehow of a different group, different



31

being, than whites. For these reasons and many others, 
I base my statement.

“ Q. These injuries that you say come from legal 
segregation, does the child grow out of them! Do 
you think they will be enduring, or is it merely a sort 
of temporary thing that he can shake off!

“ A. It is my opinion that except in rare cases, a 
child who has for 10 or 12 years lived in a community 
where legal segregation is practiced, furthermore, in 
a community where other beliefs and attitudes support 
racial discrimination, it is my belief that such a child 
will probably never recover from whatever harmful 
effect racial prejudice and discrimination can wreck.”

Dr. Harold McNalley, an expert in the field of Educa­
tional Psychology, testified:

” . . .  And, secondly, that there is basically implied 
in the separation—the two groups in this case of Negro 
and White—that there is some difference in the two 
groups which does not make it feasible for them to 
be educated together, which I would hold to be untrue. 
Furthermore, by separating the two groups, there is 
implied a stigma on at least one of them. And, I think 
that that would probably be pretty generally conceded. 
We thereby relegate one group to the status of more 
or less second-class citizens. Now, it seems to me 
that if that is true—and I believe it is—that it would 
be impossible to provide equal facilities as long as one 
legally accepts them.

” Q. I see. Now, all of the items that you talked 
about that you based your reason for reaching your 
conclusion, you consider them to be important phases 
in the educational process!

“ A. Very much so.”

Dr. Louis Kesselman, a political scientist, testified:

“ I think that I do. My particular interest in the 
field of Political Science is citizenship and the Politi­
cal processes. And, based upon studies which we



32

regard as being scientifically accurate by virtue of 
use of the scientific methods, we have come to feel that 
a number of things result from segregation which are 
not desirable from the standpoint of good citizenship; 
that the segregation of white and Negro students in 
the schools prevents them from gaining an understand­
ing of the needs and interests of both groups. Sec­
ondly, segregation breeds suspicion and distrust in 
the absence of a knowledge of the other group. And, 
thirdly, where segregation is enforced by law, it may 
even breed distrust to the point of conflict. Now, carry­
ing that over into the field of citizenship, when a com­
munity is faced with problems which every community 
would be faced with, it will need the combined efforts 
of all citizens to solve those problems. Where segre­
gation exists as a pattern in education, it makes that 
cooperation more difficult. Next, in terms of voting 
and participating in the electorial process, our various 
studies^indicate that these people who are low in literacy 
and low in experience with other groups are not likely 
to participate as fully as those who have . . . ”

Mrs. Helen Trager, a child psychologist who had con­
ducted tests of the effects of racial segregation and racial 
tensions among children, testified: '

“ Q- Mrs. Trager, in your opinion, could these 
injuries under any circumstances ever be corrected in 
a segregated school?

“ A. I think not, for the same reasons that Dr. Krech 
gave. Segregation is a symbol of, a perpetuator of, 
prejudice. It also stigmatizes children who are forced 
to go there. The forced separation has an effect on 
personality and one’s evaluation of one’s self, which 
is inter-related to one’s evaluation of one’s group.”



Dr. Robert Bedfield, an expert in the field of anthropol­
ogy, testified as to the unreasonableness of racial classifi­
cation in education:

“  Q. As a result of your studies that you have made, 
the training that you have had in your specialized field 
over some 20 years, given a similar learning situation, 
what, if any differences, is there between the accom­
plishment of a white and a negro student, given a 
similar learning situation?

“ A. I understand, if I may say so, a similar learn­
ing situation to include a similar degree of preparation!

“ Q. Yes.
“ A. Then I would say that my conclusion is that 

the one does as well as the other on the average.”

The opinion and decree of the majority of the lower court 
was based upon the assumption that equality of rights 
guaranteed by the Fourteenth Amendment was limited to 
physical equality such as facilities, equipment and curricula. 
Expert witnesses for plaintiffs testified not only as to the 
inevitable harmful effect of segregation on public school 
children but also of the tests showing the irreparable harm 
to the plaintiffs and other Negro school children in Claren­
don County. This testimony was disposed of in the major­
ity opinion as follows:

“ There is testimony to the effect that mixed schools 
will give better education and a better understanding 
of the community in which the child is to live than 
segregated schools. There is testimony, on the other 
hand, that mixed schools will result in racial friction 
and tension and that the only practical way of conduct­
ing public education in South Carolina is with segre­
gated schools. The questions thus presented are not 
questions of constitutional right but of legislative pol­
icy, which must be formulated, not in vacuo or with 
doctrinaire disregard of existing conditions, but in 
realistic approach to the situations to which it is to be



34

applied. In some states, the legislatures may well 
decide that segregation in public schools should be 
abolished, in others that it should be maintained—• 
all depending upon the relationships existing between 
the races and the tensions likely to be produced by 
an attempt to educate the children of the two races 
together in the same schools. The federal courts would 
be going far outside their constitutional function were 
they To attempt to prescribe educational policies for 
the states in such matters, however desirable such poli­
cies might be in the opinion of some sociologists or 
educators. For the federal courts to do so would 
result, not only interference with local affairs by an 
agency of the federal government, but also in the sub­
stitution of the judicial for the legislative process in 
what is essentially a legislative matter.”

The testimony on behalf of the plaintiffs was by expert 
witnesses of unimpeachable qualifications. The record in 
this case presents for the first time in any case competent 
testimony of the permanent injury to Negro elementary 
and high school children forced to attend segregated 
schools. Testimony was introduced showing the irrepa­
rable damage done to the plaintiffs in this case solely by 
reason of racial segregation. The record also shows the 
unreasonableness of this racial classification. This is not 
theory or legislative argument. This is competent expert 
testimony from recognized scientists directed toward the 
factors recognized by the Supreme Court as determinative 
of the validity of similar statutory provisions. This testi­
mony stands uncontradicted in the record.

The Supreme Court in the McLaurin case, supra, refused 
to apply the separate but equal doctrine to a case where, 
despite complete equality of physical facilities for educa­
tion, the State of Oklahoma “ sets McLaurin apart from 
the other students.”  (339 U. S. 641) On the other hand 
the Supreme Court stated: “ The result is that appellant



35

is handicapped in his pursuit of effective graduate instruc­
tion. Such restrictions impair and inhibit his ability to 
study, to engage in discussions and exchange views with 
other students, and, in general, to learn his profession.”  
(339 U. S. 641) The Supreme Court, therefore, concluded: 
“ the conditions under which this appellant is required to 
receive his education deprived him of his personal and 
present right to the equal protection of the laws.”  (339 
U. S. 642)

If the majority of the District Court had tested the evi­
dence in this case by the criterion of the McLaurin case, it 
inevitably would have concluded that the segregation laws 
could not validly be enforced against the plaintiffs. Instead, 
it considered the “ separate but equal”  doctrine of Plessy 
v. Ferguson, supra, controlling, and limited the application 
of the equal protection clause exclusively to physical 
facilities.

This case should be reviewed on appeal for determina­
tion as to whether this conclusion is in conflict with the 
applicable decision of the Supreme Court.

Conclusion

For many years Negroes in the South have sought edu­
cational facilities equal to those offered other citizens. 
Blind adherence to the separate but equal doctrine has pro­
duced increasing inequality within a segregated system. 
Great progress has been made in graduate and professional 
education during the year since the Sweatt and McLaurin 
decisions. None of the harmful effects predicted in the 
brief filed in these cases by the attorneys general of the 
Southern States has materialized.

In the decision in this case, as in the McLaurin ease, 
plaintiffs’ individual rights have been lost in the racial 
group classification required by the laws of South Carolina.



36

Expert witnesses testified as to the harmful effects of this 
enforced racial segregation, i.e., the resulting injury is even 
more effective and harmful than in graduate education. 
The questions here involved are substantial and important 
to the interest of public education, today and in the future, 
to the individual’s right to complete equality before the 
law, and to our government.

Respectfully submitted,

H arold R . B ottlware 
1109% Washington Street 
Columbia 20, South Carolina

S pottswood W. R obinson , III 
623 North Third Street 
Richmond, Virginia

R obert L. Carter

T hurgood M arshall  
20 West 40th Street 
New York 18, New York

Counsel f<?r Plaintiffs- 
Appellants

A rt h u r  D . S hores 
A . T . W alden  

Of Counsel 
July 20, 1951



37

APPENDIX “ A ”

DISTRICT COURT OF THE UNITED STATES 
FOR THE

EASTERN DISTRICT OF SOUTH CAROLINA 
CHARLESTON DIVISION

(Civil Action No. 2657)

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

R. W. E llio tt , Chairman, J. D. Carson and G eorge K e n ­
n edy , Members of the Board of Trustees of School District 
No. 22, Clarendon County, S. C .; S u m m brton  H igh  
S chool D istrict , a body corporate; L. B. M cC ord, Super­
intendent of Education for Clarendon County, and C h a ir ­
m a n  A. J. P low d en , W. E. B ak er , Members of the County 
Board of Education for Clarendon County; and H. N. 
B e t c h a m , Superintendent of School District No. 22,

Defendants.

D ecree

In the above entitled case the Court finds the facts to be 
as set forth in its written opinion filed herewith and on the 
basis thereof it is adjudged by the Court:

(1) That neither Article II section 7 of the Constitution 
of South Carolina nor section 5377 of the Code are of 
themselves violative of the provisions of the Fourteenth 
Amendment to the Constitution of the United States and 
plaintiffs are not entitled to an injunction forbidding segre­
gation in the public schools of School District No. 22.

(2) That the educational facilities, equipment, curricula 
and opportunities afforded in School District No. 22 for 
colored pupils are not substantially equal to those afforded 
for white pupils; that this inequality is violative of the



38

equal protection clause of the Fourteenth Amendment; and 
that plaintiffs are entitled to an injunction requiring the 
defendants to make available to them and to other Negro 
pupils of said district educational facilities, equipment, 
curricula and opportunities equal to those afforded white 
pupils.

And it is accordingly ordered, adjudged and decreed that 
the defendants proceed at once to furnish to plaintiffs and 
other Negro pupils of said district educational facilities, 
equipment, curricula and opportunities equal to those fur­
nished white pupils;

And it is further ordered that the defendants make report 
to this Court within six months of this date as to the action 
taken by them to carry out this order.

And this cause is retained for further orders.
This the 21 day of June 1951.

/ s /  J o h n  J. P arker
Chief Judge, Fourth Circuit

U. S. District Judge, Eastern 
District of South Carolina.

/ s /  G eorge B ell  T im m e r m a n
U. S. District Judge, Eastern 
and Western Districts of 
South Carolina.

I do not join in this decree for the reasons set forth in a 
separate dissenting opinion.

/ s /  J. W a t ie s  W a r in g

U. S. District Judge,
Eastern District of 
South Carolina.

A True Copy. Attest.
/ s /  E rnest  L. A llen

Clerk of U. S. District Court,
East. Dist So. Carolina,



39

DISTRICT COURT OF THE UNITED STATES 
FOR THE

EASTERN DISTRICT OF SOUTH CAROLINA 
CHARLESTON DIVISION

I concur:
/ s /  G eo. B ell  T im m e r m a n  

U. S. Dist. Judge.
I concur:

/ s /  J o h n  J. P arker
Chief Judge 4th Circuit.

H arry  B riggs, Jr., et . al ., Plaintiffs, 
versus

R. W. E llio tt , Chairman, J. D. Carson and G eorge K e n ­
n edy , Members of the Board of Trustees of School District 
No. 22, Clarendon County, S. C .; S u m m erton  H igh  
S chool D istrict , a body corporate; L. B. M cC ord, Super­
intendent of Education for Clarendon County, and C h a ir ­
m a n  A. J. P low d en , W. E. B ak er , Members of the County 
Board of Education for Clarendon County; and H. B. 
B e t c h a m , Superintendent of School District No. 22, 
Defendants.

On Application for Declaratory Judgment and Injunction. 
Heard May 28, 1951. Decided------

Before P ark er , Circuit Judge, and W aring and T im m e r m a n , 
District Judges.

H arold R. B oulw are , S pottswood R obinson , III, R obert L. 
Carter, T hurgood M arsh all , A rt h u r  S hores and A. T. 
W alden , for Plaintiffs; T. C. Callison , Attorney General 
of South Carolina, S. E. R ogers and R obert M cC. F igg, 
Jr., for Defendants.

P arker , Chief Judge:
This is a suit for a declaratory judgment and injunctive 

relief in which it is alleged that the schools and educational 
facilities provided for Negro children in School District No.



40

22 in Clarendon County, South Carolina, are inferior to those 
provided for white children in that district and that this 
amounts to a denial of the equal protection of the laws guar­
anteed them by the Fourteenth Amendment to the Federal 
Constitution, and further that the segregation of Negro and 
white children in the public schools, required by Article II, 
section 7 of the Constitution of South Carolina and section 
5377 of the Code of Laws of that state,87 is of itself violative 
of the equal protection clause of the Fourteenth Amend­
ment. Plaintiffs are Negro children of school age who are 
entitled to attend the public schools in District No. 22 in 
Clarendon County, their parents and guardian. Defend­
ants are the school officials who, as officers of the state, 
have control of the schools in the district. A court of three 
judges has been convened pursuant to the provisions of 28 
DSC 2281 and 2284, the evidence offered by the parties has 
been heard and the case has been submitted upon the briefs 
and arguments of counsel.

At the beginning of the hearing the defendants admitted 
upon the record that 4 4 the educational facilities, equipment, 
curricula and opportunities afforded in School District No. 
22 for colored pupils * * * are not substantially equal to 
those afforded for white pupils.”  The evidence offered in 
the case fully sustains this admission. The defendants 
contend, however, that the district is one of the rural school 
districts which has not kept pace with urban districts in 
providing educational facilities for the children of either 
race, and that the inequalities have resulted from limited 
resources and from the disposition of the school officials to 
spend the limited funds available “ for the most immediate 
demands rather than in the light of the overall picture.”  
They state that under the leadership of Governor Byrnes 
the Legislature of South Carolina had made provision for 37

37 Article II, section 7, of the Constitution of South Carolina is as 
follows: “ Separate schools shall be provided for children of the white 
and colored races, and no child of either race shall ever be permitted 
to attend a school provided for children of the other race.”

Section 5377 of the Code of Laws of South Carolina of 1942 is as fol­
lows: “ It shall be unlawful for pupils of one race to attend the schools 
provided by boards of trustees for persons of another race,”



41

a bond issue of $75,000,000 with a three per cent sales tax 
to support it for the purpose of equalizing educational op­
portunities and facilities throughout the state and of meeting 
the problem of providing equal educational opportunities 
for Negro children where this had not been done. They have 
offered evidence to show that this educational program is 
going forward and that under it the educational facilities 
in the district will be greatly improved for both races and 
that Negro children will be afforded educational facilities 
and opportunities in all respects equal to those afforded 
white children.

There can be no question but that where separate schools 
are maintained for Negroes and whites, the educational facil­
ities and opportunities afforded by them must be equal. The 
state may not deny to any person within its jurisdiction 
the equal protection of the laws, says the Fourteenth Amend­
ment; and this means that, when the state undertakes public 
education, it may not discriminate against any individual 
on account of race but must offer equal opportunity to all. 
As said by Chief Justice Hughes in Missouri ex rel. Gaines 
v. Canada 305 U. S. 337, 349, “ The admissibility of laws 
separating the races in the enjoyment of privileges afforded 
by the State rests wholly upon the equality of the privileges 
which the laws give to the separated groups within the 
State. ’ ’ See also Sweatt v. Painter 339 U S. 629; Corbin v. 
County School Board of Pulaski County 4 Cir. 177 F. (2d) 
924; Carter v. School Board of Arlington County, Ya. 4 Cir. 
182 F. (2d) 531; McKissick v. Carmichael 4 Cir. 187 F. (2d) 
949. We think it clear, therefore, that plaintiffs are entitled 
to a declaration to the effect that the school facilities now 
afforded Negro children in District No. 22 are not equal to 
the facilities afforded white children in the district and to 
a mandatory injunction requiring that equal facilities be 
afforded them. How this shall be done is a matter for the 
school authorities and not for the court, so long as it is done 
in good faith and equality of facilities is afforded; but it 
must be done promptly and the court in addition to issuing 
an injunction to that effect will retain the cause upon its 
docket for further orders and will require that defendants



42

file within six months a report showing the action that has 
been taken by them to carry out the order.

Plaintiffs ask that, in addition to granting them relief on 
account of the inferiority of the educational facilities fur­
nished them, we hold that segregation of the races in the 
public schools, as required by the Constitution and statutes 
of South Carolina, is of itself a denial of the equal protec­
tion of the laws guaranteed by the Fourteenth Amendment, 
and that we enjoin the enforcement of the constitutional 
provisions and statute requiring it and by our injunction 
require defendants to admit Negroes to schools to which 
white students are admitted within the district. We think, 
however, that segregation of the races in the public schools, 
so long as equality of rights is preserved, is a matter of 
legislative policy for the several states, with which the 
federal courts are powerless to interfere.

One of the great virtues of our constitutional system is 
that, while the federal government protects the fundamental 
rights of the individual, it leaves to the several states the 
solution of local problems. In a country with a great ex­
panse of territory with peoples of widely differing customs 
and ideas, local self government in local matters is essential 
to the peace and happiness of the people in the several com­
munities as well as to the strength and unity of the country 
as a whole. It is universally held, therefore, that each state 
shall determine for itself, subject to the observance of the 
fundamental rights and liberties guaranteed by the federal 
Constitution, how it shall exercise the police power, i.e. 
the power to legislate with respect to the safety, morals, 
health and general welfare. And in no field is this right of 
the several states more clearly recognized than in that of 
public education. As was well said by Mr. Justice Harlan, 
speaking for a unanimous court in Cumming v. Board of 
Education 175 U. S. 528, 545, “ while all admit that the 
benefits and burdens of public taxation must be shared by 
citizens without discrimination against any class on account 
of their race, the education of the people in schools main­
tained by state taxation is a matter belonging to the re­
spective States, and any interference on the part of federal 
authority with the management of such schools cannot be



43

justified except in the case of a clear and unmistakable 
disregard of rights secured by the supreme law of the land. ’ ’ 

It is equally well settled that there is no denial of the 
equal protection of the laws in segregating children in the 
schools for purposes of education, if the children of the 
different races are given equal facilities and opportunities. 
The leading case on the subject in the Supreme Court is 
Plessy v. Ferguson 163 U. S. 537, which involved segregation 
in railroad trains, but in which the segregation there in­
volved was referred to as being governed by the same prin­
ciple as segregation in the schools. In that case the Court 
said:

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

Later in the opinion the Court said:
“ So far, then, as a conflict with the Fourteenth 

Amendment is concerned, the case reduces itself to the 
question whether the statute of Louisiana is a reason­
able regulation, and with respect to this there must 
necessarily be a large discretion on the part of the 
legislature. In determining the question of reasonable­
ness, it is at liberty to act with reference to the estab■■



44

lished usages, customs and traditions of the people, and 
with a view to the promotion of their comfort, and the 
preservation of the public peace and good order.”  
(Italics supplied).

Directly in point and absolutely controlling upon so long 
as It stands unreversed by the Supreme Court is Gong Lum 
v. Eice, 275 U. S. 78, in which the complaint was that a child 
of Chinese parentage was excluded from, a school main­
tained for white children under a segregation law and was 
permitted to enter only a school maintained for colored 
children. Although attempt is made to distinguish this 
case, it cannot be distinguished. The question as to the 
validity of segregation in the public schools on the ground 
of race was squarely raised, the Fourteenth Amendment was 
relied upon as forbidding segregation and the issue was 
squarely met by the Court. What was said by Chief Justice 
Taft speaking for a unanimous court, is determinative of 
the question before us. Said he:

“ The case then reduces itself to the question whether 
a state can be said to afford to a child of Chinese an­
cestry born in this country, and a citizen of the United 
States, equal protection of the laws giving her the 
opportunity for a common school education in a school 
which receives only colored children of the brown, yel­
low or black races.

“ The right and power of the state to regulate the 
method of providing for the education of its youth at 
public expense is clear. * # * .

“ The question here is whether a Chinese citizen of 
the United States is denied equal protection of the laws 
when he is classed among the colored races and fur­
nished facilities for education equal to that offered to 
all, whether white, brown, yellow or black. Were this 
a new question, it would call for very full argument 
and consideration, but we think that it is the same 
question which has been many times decided to be 
within the constitutional power of the state legislature 
to settle without intervention of the federal courts



45

under the Federal Constitution. Roberts v. City of 
Boston 5 Cush. (Mass.) 198, 206, 208, 209; State ex rel. 
Games v. McCann, 21 Oh. St. 198, 210, People ex rel. 
King v. Gallagher 93 N. Y. 438; People ex rel. Cisco v. 
School Board 161 N. Y. 598; Ward v. Flood 48 Cal. 36; 
Wysinger v. Crookshand 82 Cal. 588, 590; Reynolds v. 
Board of Education 66 Kans. 672; McMillan v. School 
Committee 107 N. S. 609; Cory v. Carter 46 Ind. 327; 
Lehew v. Brummell 103 Mo. 546; Dameron v. Bayless 
14 Ariz. 180; State ex rel. Stoutmeyer v. Duffy 7 Nev. 
342, 348, 355; Bertonneau v. Board, 3 Woods 177, s.c. 3 
Fed. Cas. 294, Case No. 1,361; United States v. Buntin 
10 F. 730, 735; Wong Him v. Callahan, 119 F. 381.

“ In Plessy v. Ferguson 163 U. S. 537, 544, 545, in up­
holding the validity under the Fourteenth Amendment 
of a statute of Louisiana requiring the separation of 
the white and colored races in railway coaches, a more 
difficult question than this, this Court, speaking of 
permitted race separation said:

“  ‘ The most common instance of this is connected with 
the establishment of separate schools for white and 
colored children, which has been held to be a valid 
exercise of the legislative power even by courts of 
States where the political rights of the colored race 
have been longest and most earnestly enforced. ’

“ Most of the cases cited arose, it is true, over the 
establishment of separate schools as between white 
pupils and black pupils, but we cannot think that the 
question is any different or that any different result 
can be reached, assuming the cases above cited to be 
rightly decided, where the issue is as between white 
pupils and the pupils of the yellow races. The decision 
is within the discretion of the state in regulating its 
public schools and does not conflict with the Fourteenth 
Amendment.”  (Italics supplied.)

Only a little over a year ago, the question was before 
the Court of Appeals of the District of Columbia in Carr v. 
Corning, D. C. Cir. 182 F. 2d 14, a case involving the valid­
ity of segregation within the District, and the whole matter



46

was exhaustively explored in the light of history and the 
pertinent decisions in an able opinion by Judge Prettyman, 
who said:

“ It is urged that the separation of the races is itself, 
apart from equality or inequality of treatment, for­
bidden by the Constitution. The question thus posed 
is whether the Constitution lifted this problem out of 
the hands of all legislatures and settled it. We do not 
think it did. Since the beginning of human history, 
no circumstance has given rise to more difficult and 
delicate problems than has the coexistence of different 
races in the same area. Centuries of bitter experience 
in all parts of the world have proved that the problem 
is insoluble by force of any sort. The same history 
shows that it is soluble by the patient processes of 
community experience. Such problems lie naturally 
in the field of legislation, a method susceptible of ex­
perimentation, of development, of adjustment to the cur­
rent necessities in a variety of community circumstance. 
We do not believe that the makers of the first ten 
Amendments in 1789 or of the Fourteenth Amend­
ment in 1866 meant to foreclose legislative treatment 
of the problem in this country.

“ This is not to decry efforts to reach that state of 
common existence which is the obvious highest good 
in our concept of civilization. It is merely to say that 
the social and economic interrelationship of two races 
living together is a legislative problem, as yet not 
solved, and is not a problem solved fully, finally and 
unequivocally by a fiat enacted many years ago. We 
must remember that on this particular point we are 
interpreting a constitution and not enacting a statute.

“ We are not unmindful of the debates which occurred 
in Congress relative to the Civil Rights Act of April 9, 
1866, the Fourteenth Amendment and the Civil Rights 
Act of March 1, 1875. But the actions of Congress, 
the discussion in the Civil Rights cases, and the fact 
that in 1862, 1864 and 1874 Congress, as we shall point 
out in a moment, enacted legislation which specifically



47

provided for separation of the races in the schools of 
the District of Columbia, conclusively support our view 
of the Amendment and its effect.

“ The Supreme Court has consistently held that if 
there be an ‘ equality of the privileges which the laws 
give to the separated groups,’ the races may be sepa­
rated. That is to say that constitutional invalidity 
does not arise from the mere fact of separation but 
may arise from an inequality of treatment. Other 
courts have long held to the same effect. ’ ’

It should be borne in mind that in the above cases the 
courts have not been dealing with hypothetical situations 
or mere theory, but with situations which have actually 
developed in the relationship of the races throughout the 
country. Segregation of the races in the public schools has 
not been confined to South Carolina or even to the South 
but prevails in many other states where Negroes are present 
in large numbers. Even when not required by lawr, it is 
customary in many places. Congress has provided for it 
by federal statute in the District of Columbia; and seventeen 
of the states have statutes or constitutional provisions 
requiring it. They are Alabama, Arkansas, Delaware, Flor­
ida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, 
Missouri, North Carolina, Oklahoma, South Carolina, Ten­
nessee, Texas, Virginia, and West Virginia.38 And the valid­
ity of legislatively requiring segregation in the schools has 
been upheld wherever the question has been raised. See 
Wong Him v. Callahan, 119 F. 381; United States v. Buntin, 
10 F. 730; Bertonneau v. Board of Directors, 3 Fed. Cas. 
294, No. 1361; Dameron v. Bayless, 14 Ariz. 180, 126 Pac. 
273; Maddox v. Neal, 45 Ark. 121, 55 Am. Bep, 540; Ward 
v. Flood, 48 Cal. 36, 17 Am. Bep. 405; Cory v. Carter, 48 
Ind. 327, 17 Am. Bep. 738; Graham v. Board of Education, 
153 Kan. 840, 114 P. 2d 313; Bichardson v. Board of Educa­
tion, 72 Kan. 629, 84 Pac. 538; Beynolds v. Board of Educa­
tion, 66 Kan. 672, 72 Pac. 274; Chrisman v. Mayor, 70 Miss.

38 Statistical Summary of Education, 1947-48, “ Biennial Survey of 
Education in the United States, 1946-48” , eh. 1 pp. 8, 40 (Federal Secu­
rity Agency, Office of Education).



48

477, 12 So. 458; Lehew v. Brummell, 103 Mo. 546, 15 S. W. 
765, 11 L. R. A. 828, 23 Am. St. Rep. 895; State v. Duffy, 
7 Nev. 342, 8 Am. Rep. 713; People v. School Board, 161 
N. Y. 598, 56 N. E. 81, 48 L. R. A. 113; People v. Gallagher, 
93 N. Y. 438, 45 Am. Rep. 232; McMillan v. School Com- 

-mittee, 107 N. C. 609, 12 S. E. 330, 10 L, R. A. 823; State v. 
McCann, 21 Ohio St. 198; Board of Education v. Board of 
Com’rs, 14 Okla. 322, 78 Pac. 455; Martin v. Board of Educa­
tion, 42 W. Va. 514, 26 S. E. 348.39 No cases have been 
cited to us holding that such legislation is violative of the 
Fourteenth Amendment. We know of none and diligent 
search of the authorities has failed to reveal any.

Plaintiffs reply upon expressions contained in opinions 
relating to professional education such as Sweatt v. Painter, 
339 U. S. 629; McLaurin v. Oklahoma State Regents, 339 
U. S. 637, and McKissiek v. Carmichael, 4 Cir. 187 F. 2d 
949, where equality of opportunity was not afforded. Sweatt 
v. Painter, however, instead of helping them, emphasizes 
that the separate but equal doctrine of Plessy v. Ferguson 
has not been overruled, since the Supreme Court, although 
urged to overrule it, expressly refused to do so and based 
its decision on the ground that the educational facilities 
offered Negro law students in that case were not equal to 
those offered white students. The decision in McKissiek v. 
Carmichael was based upon the same ground. The case of 
McLaurin v. Oklahoma State Regents involved humiliating 
and embarrassing treatment of a Negro law student to 
which no one should have been required to submit. Nothing 
of the sort is involved here.

The problem of segregation as applied to graduate and 
professional education is essentially different from that 
involved in segregation in education at the lower levels. 
In the graduate and professional schools the problem is one 
of affording equal educational facilities to persons sui juris 
and of mature personality. Because of the great expense 
of such education and the importance of the professional 
contacts established while carrying- on the educational proc­

39 See also Roberts v. City of Boston, 5 Cush. (Mass.) 198, decided 
prior to the Fourteenth Amendment.



49

ess, it is difficult for the state to maintain segregated schools 
for Negroes in this field which will afford them oppor­
tunities for education and professional advancement equal 
to those afforded by the graduate and professional schools 
maintained for white persons. What the courts have said, 
and all they have said in the cases upon which plaintiffs 
rely is that, notwithstanding these difficulties, the oppor­
tunity afforded the Negro student must be equal to that 
afforded the white student and the schools established for 
furnishing this instruction to white persons must be opened 
to Negroes if this is necessary to give them the equal oppor­
tunity which the Constitution requires.

The problem of segregation at the common school level 
is a very different one. At this level, as good education 
can be afforded in Negro schools as in white schools and 
the thought of establishing professional contacts does not 
enter into the picture. Moreover, education at this level 
is not a matter of voluntary choice on the part of the stu­
dent but of compulsion by the state. The student is taken 
from the control of the family during school hours by 
compulsion of law and placed in control of the school, 
where he must associate with his fellow students. The law 
thus provides that the school shall supplement the work 
of the parent in the training of the child and in doing so 
it is entering a delicate field and one fraught with tensions 
and difficulties. In formulating educational policy at the 
common school level, therefore, the law must take account, 
not merely of the matter of affording instruction to the 
student, but also of the wishes of the parents as to the 
upbringing of the child and his associates in the formative 
period of childhood and adolescence. If public education 
is to have the support of the people through their legis­
latures, it must not go contrary to what they deem, for the 
best interests of their children.

There is testimony to the effect that mixed schools will 
give better education and a better understanding of the 
community in which the child is to live than segregated 
schools. There is testimony, on the other hand, that mixed 
schools will result in racial friction and tension and that 
the only practical way of conducting public education in



50

South Carolina is with segregated schools. The questions 
thus presented are not questions of constitutional right 
but of legislative policy, which must be formulated, not 
in vacuo or with doctrinaire disregard of existing condi­
tions, but in realistic approach to the situations to which 
it is to be applied. In some states, the legislatures may 
well decide that segregation in public schools should be 
abolished, in others that it should be maintained—all depend­
ing upon the relationships existing between the races and 
the tensions likely to be produced by an attempt to edu­
cate the children of the two races together in the same 
schools. The federal courts would be going far outside 
their constitutional function were they to attempt to pre­
scribe educational policies for the states in such matters, 
however desirable such policies might be in the opinion 
of some sociologists or educators. For the federal courts 
to do so would result, not only in interference with local 
affairs by an agency of the federal government, but also 
in the substitution of the judicial for the legislative proc­
ess in what is essentially a legislative matter.

The public schools are facilities provided and paid for 
by the states. The state’s regulation of the facilities which 
it furnishes is not to be interfered with unless constitu­
tional rights are clearly infringed. There is nothing in 
the Constitution that requires that the state grant to all 
members of the public a common right to use every facil­
ity that it affords. Grants in aid of education or for the 
support of the indigent may properly be made upon an 
individual basis if no discrimination is practiced; and, if 
the family, which is the racial unit, may be considered in 
these, it may be considered also in providing public schools. 
The equal protection of the laws does not mean that the 
child must be treated as the property of the state and the 
wishes of his family as to his upbringing be disregarded. 
The classification of children for the purpose of education 
in separate schools has a basis grounded in reason and 
experience; and, if equal facilities are afforded, it cannot 
be condemned as discriminatory for, as said by Mr. Justice 
Reed in New York Rapid Transit Corp. v. City of New 
York, 303 U. S. 573, 578: “ It has long been the law under



51

the Fourteenth Amendment that ‘ a distinction in legislation 
is not arbitrary, if any state of facts can be conceived 
that would sustain it. ’ ”  40

We are cited to cases having relation to zoning ordinances, 
restrictive covenants in deeds and segregation in public 
conveyances. It is clear, however, that nothing said in 
these cases would justify our disregarding the great vol­
ume of authority relating directly to education in the public 
schools, which involves not transient contacts, but asso­
ciations which affect the interests of the home and the 
wishes of the people with regard to the upbringing of their 
children. As Chief Justice Taft pointed out in Gong Lum 
v. Rice, supra, “ a more difficult”  question is presented by 
segregation in public conveyances than by segregation in 
the schools.

We conclude, therefore, that if equal facilities are offered, 
segregation of the races in the public schools as prescribed 
by the Constitution and laws of South Carolina is not of 
itself violative of the Fourteenth Amendment. We think 
that this conclusion is supported by overwhelming author­
ity which we are not at liberty to disregard on the basis 
of theories advanced by a few educators and sociologists. 
Even if we felt at liberty to disregard other authorities, 
we may not ignore the unreversed decisions of the Supreme 
Court of the United States which are squarely in point 
and conclusive of the question before us. As said by the 
Court of Appeals of the Fourth Circuit in Boyer v. Garrett, 
183 F. 2d 582, a case involving segregation in a public play­
ground, in which equality of treatment was admitted and

40 See also, Rast v. Van Deman & Lewis Co., 240 U. S. 342, 357; Bor­
den’s Farm Products Co. v. Baldwin, 293 U. S. 194, 209; Metropolitan 
Casualty Ins. Co. v. Brownell 294 U. S. 580, 584; State Board of Tax 
Com’rs v. Jackson 283 U. S. 527, 537; Lindsley v. Natural Carbonic Gas 
Co. 220 U. S. 61, 78; Alabama State Federation of Labor v. McAdory 
325 U. S. 450, 465; Asbury Hospital v. Cass County, N. D. 326 U. S. 
207, 215; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 509; 
South Carolina Power Co. v. South Carolina Tax Com’n, 4 Cir. 52 F, (2d) 
515, 518; United States v Carolene Products Co. 304 U. S. 144, 152; 
Bowles v. American Brewery, 4 Cir. 147 F. 2d 842, 847; White Packing 
Co. v. Robertson, 4 Cir. 89 F. 2d 775, 779.



52

segregation was attacked as being per se violative of the 
Fourteenth Amendment:

“ The contention of plaintiffs is that, notwithstand­
ing this equality of treatment, the rule providing for 
segregation is violative of the provisions of the fed­
eral Constitution. The District Court dismissed the 
complaint on the authority of Plessy v. Ferguson, 163 
U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; and the prin­
cipal argument made on appeal is that the authority 
of Plessy v. Ferguson has been so weakened by sub­
sequent decisions that we should no longer consider 
it as binding. We do not think, however, that we are 
at liberty thus to disregard a decision of the Supreme 
Court which that court has not seen fit to overrule 
and which it expressly refrained from reexamining, 
although urged to do so, in the very recent case of 
Sweatt v. Painter, 70 S. Ct. 848. It is for the Supreme 
Court, not us, to overrule its decisions or to hold them 
outmoded. ’ ’

To this we may add that, when seventeen states and the 
Congress of the United States have for more than three- 
quarters of a century required segregation of the races in 
the public schools,, and when this has received the approval 
of the leading appellate courts of the country including 
the unanimous approval of the Supreme Court of the United 
States at a time when that court included Chief Justice 
Taft and Justices Stvone, Holmes and Brandeis, it is a late 
day to say that such segregation is violative of fundamental 
constitutional rights. It is hardly reasonable to suppose 
that legislative bodies over so wide a territory, including 
the Congress of the United States, and great judges of 
high courts have knowingly defied the Constitution for 
so long a period or that they have ayted in ignorance of 
the meaning of its provisions. The constitutional prin­
ciple is the same now that it has been throughout this 
period; and if conditions have changed so that segregation 
is no longer wise, this is a matter for the legislatures and



53

not for the courts. The members of the judiciary have 
no more right to read their ideas of sociology into the 
Constitution than their ideas of economics.

It is argued that, because the school facilities furnished 
Negroes in District No. 22 are inferior to those furnished 
white persons, we should enjoin segregation rather than 
direct the equalizing of conditions. In as much as we think 
that the law requiring segregation is valid, however, and 
that the inequality suffered by plaintiffs results, not from 
the law, but from the way it has been administered, we 
think that our injunction should be directed to removing 
the inequalities resulting- from administration within the 
framework of the law rather than to nullifying the law 
itself. As a court of equity, we should exercise our power 
to assure to plaintiffs the equality of treatment to which 
they are entitled with due regard to the legislative policy 
of the state. In directing that the school facilities afforded 
Negroes within the district be equalized promptly with 
those afforded white persons, we are giving plaintiffs all 
the relief that they can reasonably ask and the relief that 
is ordinarily granted in cases of this sort. See Corbin v. 
County School Board of Arlington County, Virginia, 4 Cir. 
182 F. 2d 531. The court should not use its power to abolish 
segregation in a state where it is required by law if the 
equality demanded by the Constitution can be attained 
otherwise. This much is demanded by the spirit of comity 
which must prevail in the relationship between the agencies 
of the federal government and the states if our constitu­
tional system is to endure.

Decree will be entered finding that the constitutional and 
statutory provisions requiring segregation in the public 
schools are not of themselves violative of the Fourteenth 
Amendment, but that defendants have denied to plaintiffs 
rights guaranteed by that amendment in failing to furnish 
for Negroes in School District 22 educational facilities 
and opportunities equal to those furnished white persons, 
and injunction will issue directing defendants promptly to 
furnish Negroes within the district educational facilities



54

and opportunities equal to those furnished white persons 
and to report to the court within six months as to the 
action that has been taken by them to effectuate the court’s 
decree.

Injunction to Abolish Segregation Denied.
Injunction to Equalize Educational Facilities Granted.

A True Copy, Attest.
/ s /  E rnest  L. A llen

Clerk of U. S. District Court 
East. Dist. So. Carolina.

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF SOUTH 

CAROLINA, CHARLESTON DIVISION

Civil Action No. 2657

H arry  B riggs, Jr., et a l ., Plaintiffs, 
vs.

R. \V. E l lio tt , Chairman, et a l ., Defendants 

D issenting  Opin io n

This case has been brought for the express and declared 
purpose of determining the right of the State of South 
Carolina, in its public schools, to practice segregation 
according to race.

The Plaintiffs are all residents of Clarendon County, 
South Carolina which is situated within the Eastern Dis­
trict of South Carolina and within the jurisdiction of this 
Court. The Plaintiffs consist of minors and adults there 
being forty-six minors who are qualified to attend and are 
attending the public schools in School District 22 of Claren­
don County; and twenty adults who are taxpayers and are 
either guardians or parents of the minor Plaintiffs. The 
Defendants are members of the Board of Trustees of School 
District 22 and other officials of the educational system of



55

Clarendon County including the superintendent of edu­
cation. They are the parties in charge of the various 
schools which are situated within the aforesaid school dis­
trict and which are affected by the matters set forth in this 
cause.

The Plaintiffs allege that they are discriminated against 
by the Defendants under color of the Constitution and laws 
of the State of South Carolina whereby they are denied 
equal educational facilities and opportunities and that, this 
denial is based upon difference in race. And they show 
that the school system of this particular school district and 
county (following the general pattern that it is admitted 
obtains in the State of South Carolina) sets up two classes 
of schools; one for people said to belong to the white race 
and the other for people of other races but primarily for 
those said to belong to the Negro race or of mixed races 
and either wholly, partially, or faintly alleged to be of 
African or Negro descent. These Plaintiffs bring this 
action for the enforcement of the rights to which they claim 
they are entitled and on behalf of many others who are in 
like plight and condition and the suit is denominated a class 
suit for the purpose of abrogation of what is claimed to be 
the enforcement of unfair and discriminatory laws by the 
Defendants. Plaintiffs claim that they are entitled to bring 
this case and that this court has jurisidiction under the 
Fourteenth Amendment of the Constitution of the United 
States and of a number of statutes of the United States, 
commonly referred to as civil rights statutes.41 The Plain­
tiffs demand relief under the above referred to sections of 
the laws of the United States by way of a Declaratory 
Judgment and Permanent Injunction.

It is alleged that the Defendants are acting under the 
authority granted them by the Constitution and laws of the 
State of South Carolina and that all of these are in con­
travention of the Constitution and laws of the United States.

41 Fourteenth Amendment of the Constitution of the United States, 
Section 1; Title 8, USCA, Section 41, Section 43; Title 28, USCA, 
Section 1343.



56

The particular portions of the laws of South Carolina are as 
follows:

Article XI, Section 5 is as follows:
“ Free Public Schools—The General Assembly shall 

provide for a liberal system of free public schools for 
all children between the ages of six and twenty-one 
years . . . ”

Article XI, Section 7 is as follows:
“ Separate schools shall be provided for children of 

the white and colored races, and no child of either race 
shall ever be permitted to attend a school provided for 
children of the other race.”

Section 5377 of the Code of Laws of South Carolina is 
as follows:

“ It shall be unlawful for pupils of one race to attend 
the schools provided by boards of trustees for persons 
of another race.”

It is further shown that the Defendants are acting under the 
authority of the Constitution and laws of the State of 
South Carolina providing for the creation of various school 
districts,42 and they have strictly separated and segregated 
the school facilities, both elementary and high school, 
according to race. There are, in said school district, three 
schools which are used exclusively by Negroes: to wit, 
Rambay Elementary School, Liberty Hill Elementary 
School, and Scotts Branch Union (a combination of ele­
mentary and high school). There are in the same school 
district, two schools maintained for whites, namely, Sum- 
merton Elementary School and Summerton High School. 
The last named serves some of the other school districts in 
Clarendon County as well as No. 22.

It appears that the Plaintiffs filed a petition with the 
Defendants requesting that the Defendants cease dis­

42 Constitution of South Carolina, Article XI, Section 5. Code of Laws, 
5301, 5316, 5328, 5404 and 5405. Code of Laws of South Carolina, Sec­
tions 5303, 5306, 5343, 5409.



57

crimination against the Negro children of public school age; 
and the situation complained of not having been remedied 
or changed, the Plaintiffs now ask this Court to require the 
Defendants to grant them their rights guaranteed under 
the Fourteenth Amendment of the Constitution of the 
United States and they appeal to the equitable power of this 
Court for declaratory and injunctive relief alleging that 
they are suffering irreparable injuries and that they have 
no plain adequate or complete remedy to redress the wrongs 
and illegal acts complained of other than this suit. And 
they further point out that large numbers of people and 
persons are and will be affected by the decision of this 
Court in adjudicating and clarifying the rights of Negroes 
to obtain education in the public school system of the State 
of South Carolina without discrimination and denial of 
equal facilities on account of their race.

The Defendants appear and by way of answer deny the 
allegations of the Complaint as to discrimination and in­
equality and allege that not only are they acting within 
the laws of the State in enforcing segregation but that all 
facilities afforded the pupils of different races are adequate 
and equal and that there is no inequality or discrimination 
practiced against these Plaintiffs or any others by reason 
of race or color. And they allege that the facilities and 
opportunities furnished to the colored children are sub­
stantially the same as those provided for the white children. 
And they further base their defense upon the statement 
that the Constitutional and statutory provisions under 
attack in this case, that is to say, the provisions requiring 
separate schools because of race, are a reasonable exercise 
of the State’s police power and that all of the same are 
valid under the powers possessed by the State of South 
Carolina and the Constitution of the United States and 
they deny that the same can be held to be unconstitutional 
by this Court.

The issues being so drawn and calling for a judgment by 
a United States Court which would require the issuance 
of an injunction against State and County officials, it 
became apparent that it would be necessary that the case 
be heard in accordance with the statute applicable to cases



58

of this type requiring the calling of a three-judge court.43 
Such a court convened and the case was set for a hearing 
on May 28, 1951.

The case came on for a trial upon the issues as presented 
in the Complaint and Answer. But upon the call of the 
case, Defendants’ counsel announced that they wished to 
make a statement on behalf of the Defendants making cer­
tain admissions and praying that the Court make a finding 
as to inequalities in respect to buildings, equipment, facil­
ities, curricula and other aspects of the schools provided for 
children in School District 22 in Clarendon County and 
giving the public authorities time to formulate plans for 
ending such inequalities. In this statement Defendants 
claim that they never had intended to discriminate against 
any of the pupils and although they had filed an answer 
to the Complaint, some five months ago, denying inequal­
ities, they now admit that they had found some; but rely 
upon the fact that subsequent to the institution of this 
suit, James F. Byrnes, the Glovernor of South Carolina, 
had stated in his inaugural address that the State must 
take steps to provide money for improving educational 
facilities and that thereafter, the Legislature had adopted 
certain legislation. They stated that they hoped that in 
time they would obtain money as a result of the foregoing 
and improve the school situation.

This statement was allowed to be filed and considered as 
an amendment to the Answer.

By this maneuver, the Defendants have endeavored to 
induce this Court to avoid the primary purpose of the 
suit. And if the Court should follow this suggestion and 
fail to meet the issues raised by merely considering this 
case in the light of another “ separate but equal”  case, the 
entire purpose and reason for the institution of the case 
and the convening of a three-judge court would be voided. 
The sixty-six (66) Plaintiffs in this cause have brought this 
suit at what must have cost much in effort and financial 
expenditures. They are here represented by six attorneys, 
all, save one, practicing lawyers from without the State of

43 Title 28, USCA, Sections 2281-84.



59

South Carolina and coming here from a considerable dis­
tance. The Plaintiffs have brought a large number of 
witnesses exclusive of themselves. As a matter of fact, 
they called and examined eleven witnesses. They said that 
they had a number more coming who did not arrive in time 
owing to the shortening of the proceedings and they also 
stated that they had on hand and had contemplated calling 
a large number of other witnesses but this became unneces­
sary by reason of the foregoing admissions by Defendants. 
It certainly appears that large expenses must have been 
caused by the institution of this case and great efforts 
expended in gathering data, making a study of the issues 
involved, interviewing and bringing numerous witnesses, 
some of whom are foremost scientists in America. And in 
addition to all of this, these sixty-six Plaintiffs have not 
merely expended their time and money in order to test this 
important Constitutional question, but they have shown 
unexampled courage in bringing and presenting this cause 
at their own expense in the face of the long established and 
age-old pattern of the way of life which the State of South 
Carolina has adopted and practiced and lived in since and 
as a result of the institution of human slavery.

If a case of this magnitude can be turned aside and a 
court refuse to hear these basic issues by the mere device 
of an admission that some buildings, blackboards, lighting 
fixtures and toilet facilities are unequal but that they may 
be remedied by. the spending of a few dollars, then, indeed 
people in the plight in which these Plaintiffs are, have no 
adequate remedy or forum in which to air their wrongs. If 
this method of judicial evasion be adopted, these very 
infant Plaintiffs now pupils in Clarendon County will prob­
ably be bringing suits for their children and grandchildren 
decades or rather generations hence in an effort to get for 
their descendants what are today denied to them. If they 
are entitled to any rights as American citizens, they are 
entitled to have these rights now and not in the future. 
And no excuse can be made to deny them these rights which 
are theirs under the Constitution and laws of America 
by the use of the false doctrine and patter called “ separate 
but equal”  and it is the duty of the Court to meet these



60

issues simply and factually and without fear, sophistry 
and evasion. If this be the measure of justice to be meted 
out to them, then, indeed, hundreds, nay thousands, of cases 
will have to be brought and in each case thousands of dol­
lars will have to be spent for the employment of legal talent 
and scientific testimony and then the eases will be turned 
aside, postponed or eliminated by devices such as this.

We should be unwilling to straddle or avoid this issue and 
if the suggestions made by these Defendants is to be 
adopted as the type of justice to be meted out by this Court, 
then I want no part of it.

And so we must and do face, without evasion or equivoca­
tion, the ^question as to whether segregation in education 
in our schools is legal or whether it cannot exist under our 
American system as particularly enunciated in the Four­
teenth Amendment to the Constitution of the United States.

Before the American Civil War, the institution of human 
slavery had been adopted and was approved, in this coun­
try. Slavery was nothing new in the world. From the 
dawn of history we see aggressors enslaving weak and less 
fortunate neighbors. Back through the days of early civil­
izations man practiced slavery. We read of it in Biblical 
days; we read of it in the Greek City States and in the 
great Roman Empire. Throughout medieval Europe, forms 
of slavery existed and it was widely practiced in Asia 
Minor and the Eastern countries and perhaps reached its 
worst form in Nazi Germany. Class and caste have, un­
fortunately, existed through the ages. But, in time, man­
kind, through evolution and progress, through ethical and 
religious concepts, through the study of the teachings of 
the great philosophers and the great religious teachers, 
including especially the founder of Christianity—mankind 
began to revolt against the enslavement of body, mind and 
soul of one human being by another. And so there came 
about a great awakening. The British, who had indulged 
in the slave trade, awakened to the fact that it was immoral 
and against the right thinking ideology of the Christian 
world. And in this country, also, came about a moral 
awakening. Unfortunately, this had not been sufficiently 
advanced at the time of the adoption of the American Con-



61

stitution for the institution of slavery to be prohibited. 
But there was a struggle and the better thinking leaders in 
our Constitutional Convention endeavored to prohibit slav­
ery but unfortunately compromised the issue on the insist­
ent demands of those who were engaged in the slave trade 
and the purchase and use of slaves. And so as time went 
on, slavery was perpetuated and eventually became a part 
of the life and culture of certain of the States of this Union 
although the rest of the world looked on with shame and 
abhorrence.

As was so well said, this country could not continue to 
exist one-half slave and one-half free and long years of 
war were entered into before the nation was willing to 
eradicate this system which was, itself, a denial of the brave 
and fine statements of the Declaration of Independence 
and a denial of freedom as envisioned and advocated by 
our Founders.

The United States then adopted the 13th, 14th and 15th 
Amendments and it cannot be denied that the basic reason 
for all of these Amendments to the Constitution was to 
wipe out completely the institution of slavery and to de­
clare that all citizens in this country should be considered 
as free, equal and entitled to all of the provisions of citi­
zenship.

The Fourteenth Amendment to the Constitution of the 
United States is as follows:

“ Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immuni­
ties of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the 
laws.”

It seems to me that it is unecessary to pore through 
voluminous arguments and opinions to ascertain what the 
foregoing means; And while it is true that we have had



62

hundreds, perhaps thousands, of legal opinions outlining 
and defining the various effects and overtones on our laws 
and life brought about by the adoption of this Amendment, 
one of ordinary ability and understanding of the English 
language will have no trouble in knowing that when this 
Amendment was adopted, it was intended to do away with 
discrimination between our citizens.

The Amendment refers to all persons. There is nothing 
in there that attempts to separate, segregate or discrim­
inate against any persons because of their being of Euro­
pean, Asian or African ancestry. And the plain intend­
ment is that all of these persons are citizens. And then it 
is provided that no State shall make or enforce any law 
which shall abridge the privileges of citizens nor shall any 
State deny “ to any person within its jurisdiction the equal 
protection of the laws.”

The Amendment was first proposed in 1866 just about 
a year after the end of the American Civil War and the 
surrender of the Confederate States government. Within 
two years, the Amendment was adopted and became part 
of the Constitution of the United States. It cannot be 
gainsaid that the Amendment was proposed and adopted 
wholly and entirely as a result of the great conflict between 
freedom and slavery. This will be amply substantiated by 
an examination and appreciation of the proposal and dis­
cussion and Congressional debates (See Flack on Adop­
tion of the 14th Amendment) and so it is undeniably true 
that the three great Amendments were adopted to eliminate 
not only slavery, itself, but all idea of discrimination and 
difference between American citizens.

Let us now come to consider whether the Constitution 
and Laws of the State of South Carolina which we have 
heretofore quoted are in conflict with the true meaning and 
intendment of this Fourteenth Amendment. The whole 
discussion of race and ancestry has been intermingled with 
sophistry and prejudice. What possible definition can be 
found for the so-called white race, Negro race or other 
races? Who is to decide and what is the test? For, years, 
there was much talk of blood and taint of blood. Science 
tells us that there are but four kinds of blood: A, B, AB



63

and 0  and these are found in Europeans, Asiatics, Africans, 
Americans and others. And so we need not further con­
sider the irresponsible and baseless references to preserva­
tion of “ Caucasian blood.”  So then, what test are we 
going to use in opening our school doors and labeling them 
“ white”  and “ Negro” ? The law of South Carolina con­
siders a person of one-eighth African ancestry to be a Negro. 
Why this proportion? Is it based upon any reason anthro­
pological, historical or ethical? And how are the trustees 
to know who are “ whites”  and who are “ Negroes” ? If it 
is dangerous and evil for a white child to be associated with 
another child, one of whose great-grandparents was of 
African descent, is it not equally dangerous for one with a 
one-sixteenth percentage? And if the State has decided 
that there is danger in contact between the whites and 
Negroes, isn’t it requisite and proper that the State furnish 
a series of schools one for each of these percentages? If 
the idea is perfect racial equality in educational systems, 
why should children of pure African descent be brought in 
contact with children of one-half, one-fourth, or one-eighth 
such ancestry? To ask these questions is sufficient answer 
to them. The whole thing is unreasonable, unscientific and 
based upon unadulterated prejudice. We see the results of 
all of this warped thinking in the poor underprivileged and 
frightened attitude of so many of the Negroes in the south­
ern States; and in the sadistic insistence of the “ white 
supremacists”  in declaring that their will must be imposed 
irrespective of rights of other citizens. This claim of 
“ white supremacy,”  while fantastic and without founda­
tion, is really believed by them for we have had repeated 
declarations from leading politicians and governors of this 
State and other States declaring that “ white supremacy”  
will be endangered by the abolition of segregation. There 
are present threats, including those of the present Gover­
nor of this State, going to the extent of saying that all 
public education may be abandoned if the courts should 
grant true equality in educational facilities.

Although some 73 years have passed since the adoption 
of the Fourteenth Amendment and although it is clearly 
apparent that its chief purpose (perhaps we may say its



64

only real purpose), was to remove from Negroes the stigma 
and status of slavery and to confer upon them full rights 
as citizens, nevertheless, there has been a long and arduous 
course of litigation through the years. With some setbacks 
here and there, the Courts have generally and progressively 
recognized the true meaning of the Fourteenth Amendment 
and have, from time to time, stricken down, the attempts 
made by State governments (almost entirely those of the 
former Confederate States) to restrict the Amendment and 
to keep Negroes in a different classification so far as their 
rights and privileges as citizens are concerned. A number 
of cases have reached the Supreme Court of the United 
States wherein it became necessary for that tribunal to 
insist that Negroes be treated as citizens in the perform­
ance of jury duty. See Strauder v. West Virginia 4, where 
the Court says at page 307:44

. . What is this but declaring that the law in the 
States shall be the same for the black as for the white; 
that all persons, whether colored or white, shall stand 
equal before the laws of the States, and, in regard to 
the colored race, for whose protection the amendment 
was primarily designed, that no discrimination shall be 
made against them by law because of their color ? The 
words of the amendment, it is true, are prohibitory, 
but they contain a necessary implication of a positive 
immunity, or right, most valuable to the colored race,— 
the right to exemption from unfriendly legislation 
against them distinctively as colored—exemption from 
legal discriminations, implying inferiority in civil so­
ciety, lessening the security of their enjoyment of the 
rights which others enjoy, and discriminations which 
are steps towards reducing them to the condition of a 
subject race.”

Many subsequent cases have followed and confirmed the 
right of Negroes to be treated as equals in all jury and 
grand jury service in the States.

The Supreme Court has stricken down from time to time 
statutes providing for imprisonment for violation of con­

44100 u. s. 303.



65

tracts. These are known as peonage cases and were in 
regard to statutes primarily aimed at keeping the Negro 
“ in his place.” 45 46

In the field of transportation the Court has now, in effect 
declared that common carriers engaged in interstate travel 
must not and cannot segregate and discriminate against 
passengers by reason of their race or color.48

Frequent and repeated instances of prejudice in criminal 
cases because of the brutal treatment of defendants because 
of their color have been passed upon in a large number of 
cases.47

Discrimination by segregation of housing facilities and 
attempts to control the same by covenants have also been 
outlawed.48

In the field of labor employment and particularly the re­
lation of labor unions to the racial problem, discrimination 
has again been forbidden.49

Perhaps the most serious battle for equality of rights 
has been in the field of exercise of suffrage. For years, 
certain of the southern States have attempted to prevent 
the Negro from taking part in elections by various devices. 
It is unnecessary to enumerate the long list of cases, but 
from time to time, courts have stricken down all of these 
various devices classed as the “ grandfather clause,”  edu­
cational tests and white private clubs.50

45 Peonage: Bailey v. Alabama, 219 U. S. 219; U. S. v. Reynolds, 235 
U. S. 133.

46 Transportation: Mitchell v. U. S., 313 U. S. 80; Morgan v. Virginia, 
328 U. S. 373; Henderson v. U. S., 339 U. S. 816; Chance v. Lambeth, 
186 F. 2nd 879; Certiorari denied May 28, 1951.

47 Criminals: Brown v. Mississippi, 297 U. S. 278; Chambers v. 
Florida, 309 U. S. 227; Shepherd v. Florida, 341 U. S. 50.

48 Housing: Buchanan v. Warley, 245 U. S. 60; Shelley v. Kraemer, 
334 U. S. 1.

49 Labor: Steele v. L. & N. R. R. Co., 323 U. S. 192; Tunstall v. 
Brotherhood, 323 U. S. 210.

60 Suffrage: Guinn v. U. S., 238 U. S. 347; Nixon v. Herndon, 273 U. S. 
536; Lane v. Wilson, 307 U. S. 268; Smith v. Allwright, 321 U. S. 649; 
Elmore v. Rice, 72 F. Supp. 516; ,165 F. 2nd 387; Certiorari denied, 333 
U. S. 875; Brown v. Baskin, 78 F. Supp. 933; Brown v. Baskin, 80 F. 
Supp. 1017; 174 F. 2nd 391.



66
The foregoing are but a few brief references to some of 

the major landmarks in the fight by Negroes for equality. 
We now come to the more specific question, namely, the 
field of education. The question of the right of the State 
to practice segregation by race in certain educational facili­
ties has only recently been tested in the courts. The cases 
of Gaines v. Canada, 305 U. S. 337 and Sipuel v. Board of 
Regents, 332 U. S. 631, decided that Negroes were entitled 
to the same type of legal education that whites were given. 
It was further decided that the equal facilities must be 
furnished without delay or as was said in the Sipuel case, 
the State must provide for equality of education for 
Negroes “ as soon as it does for applicants of any other 
group.”  But still we have not reached the exact question 
that is posed in the instant case.

We now come to the cases that, in my opinion, definitely 
and conclusively establish the doctrine that separation and 
segregation according to race is a violation of the Four­
teenth Amendment. I, of course, refer to the cases of 
Sweatt v. Painter, 339 IJ. S. 629 and MeLaurin v. Oklahoma 
State Regents, 339 U. S. 637. These cases have been fol­
lowed in a number of lower Court decisions so that there 
is no longer any question as to the rights of Negroes to 
enjoy all the rights and facilities afforded by the law 
schools of the States of Virginia, Louisiana, Delaware, 
North Carolina and Kentucky. So there is no longer any 
basis for a State to claim the power to separate according 
to race in graduate schools, universities and colleges.

The real rock on which the Defendants base their case is 
a decision of the Supreme Court of the United States in 
the case of Plessy v. Ferguson, 163 U. S. 537. This case 
arose in Louisiana and was heard on appeal in 1895. The 
case related to the power of the State of Louisiana to re­
quire separate railroad cars for white and colored pas­
sengers and the Court sustained the State’s action. Much 
discussion has followed this case and the reasoning and 
decision has been severely criticized for many years. And 
the famous dissenting opinion by Mr. Justice Harlan has 
been quoted throughout the years as a true declaration of 
the meaning of the Fourteenth Amendment and of the 
spirit of the American Constitution and the American way



67

of life. It has also been frequently pointed out that when 
that decision was made, practically all the persons of the 
colored or Negro race had either been born slaves or were 
the children of slaves and that as yet due to their circum­
stances and surroundings and the condition in which they 
had been kept by their former masters, they were hardly 
looked upon as equals or as American citizens. The reason­
ing of the prevailing opinion in the Plessy case stems 
almost completely from a decision by Chief Justice Shaw 
of Massachusetts,61 which decision was made many years 
before the Civil War and when, of course, the Fourteenth 
Amendment had not even been dreamed of.

But these arguments are beside the point in the present 
case. And we are not called upon to argue or discuss the 
validity of the Plessy case.

Let it be remembered that the Plessy case decided that 
separate railroad accommodations might be required by a 
State in intra-state transportation. How similar attempts 
relating to inter-state transportation have fared have been 
shown in the foregoing discussion and notes.51 52 It has been 
said and repeated here in argument that the Supreme Court 
has refused to review the Plessy case in the Sweatt, Mc- 
Laurin and other cases and this has been pointed to as 
proof that the Supreme Court retains and approves the 
validity of Plessy. It is astonishing that such an argu­
ment should be presented or used in this or any other Court. 
The Supreme Court in Sweatt and McLaurin was not con­
sidering railroad accommodations. It was considering edu­
cation just as Ave are considering it here and the Supreme 
Court distinctly and unequivocally held that the attempt 
to separate the races in education was violative of the 
Fourteenth Amendment of the Constitution. Of course, the 
Supreme Court did not consider overruling Plessy. It was 
not considering railroad matters, had no arguments in re­
gard to it, had no business or concern with railroad accom­
modations and should not have even been asked to refer to

51 Roberts v. City of Boston, 5 Cush. 198.
52 See cases cited in Note 6.



that case since it had no application or business in the 
consideration of an educational problem before the Court. 
It seems to me that we have already spent too much time 
and wasted efforts in attempting to show any similarity 
between traveling in a railroad coach in the confines of a 
State and furnishing education to the future citizens of 
this country.

The instant case which relates to lower school education 
is based upon exactly the same reasoning followed in the 
Sweatt and McLaurin decisions. In the Sweatt case, it was 
clearly recognized that a law school for Negro students had 
been established and that the Texas courts had found that 
the privileges, advantages and opportunities offered were 
substantially equivalent to those offered to white students 
at the University of Texas. Apparently, the Negro school 
was adequately housed, staffed and offered full and com­
plete legal education, but the Supreme Court clearly recog­
nized that education does not alone consist of fine build­
ings, class room furniture and appliances but that included 
in education must be all the intangibles that come into play 
in preparing one for meeting life. As was so well said by 
the Court:

. Pew students and no one who has practiced law 
would choose to study in an academic vacuum, removed 
from the interplay of ideas and the exchange of views 
with which the law is concerned.”

And the Court quotes with approval from its opinion in 
Shelley v. Kramer (supra) :

“ • • • Equal protection of the laws is not achieved 
through indiscriminate imposition of inequalities.”

The Court further points out that this right to a proper 
and equal education is a personal one and that an individual 
is entitled to the equal protection of the laws. And in 
closing, the Court referring to certain cases cited, says:

“ In accordance with these cases, petitioner may 
claim his full constitutional right: legal education 
equivalent to that offered by the State to students of



69

other races. Such education is not available to him 
in a separate law school as offered by the State.”

In the companion case of McLaurin v. Oklahoma State 
Regents, McLaurin wTas a student who was allowed to at­
tend the same classes, hear the same lectures, stand the 
same examinations and eat in the same cafeteria; but he 
sat in a marked off place and had a separate table assigned 
to him in the library and another one in the cafeteria. It 
was said with truth that these separations were merely 
nominal and that the seats and other facilities were just 
as good as those afforded to white students. Rut the 
Supreme Court says that even though this be so :

‘ ‘ These restrictions were obviously imposed in order 
to comply, as nearly as could be, with the statutory 
requirements of Oklahoma. But they signify that the 
State, in administering the facilities it affords for pro­
fessional and graduate study, sets McLaurin apart 
from the other students. The result is that appellant 
is handicapped in his pursuit of effective graduate in­
struction. Such restrictions impair and inhibit his 
ability to study, to engage in discussions and exchange 
views with other students and, in general, to learn his 
profession.

“ Our society grows increasingly complex, and our 
need for trained leaders increases correspondingly. 
Appellant’s case represents, perhaps, the epitome of 
that need, for he is attempting to obtain an advanced 
degree in education, to become, by definition, a leader 
and trainer of others. Those who will come under his 
guidance and influence must be directly affected by 
the education he receives. Their own education and 
development will necessarily suffer to the extent that 
his training is unequal to that of his classmates. State- 
imposed restrictions which produce such inequalities 
cannot be sustained.”

The recent case of McKissick v. Carmichael, 187 F. 
2nd 949 wherein the question of admission to the law 
school of the University of North Carolina was decided



70

follows and amplifies the reasoning of the Sweatt and Mc- 
Laurin eases. In the McKissick case, officials of the State 
of North Carolina took the position that they had adopted 
a fixed and continued purpose to establish and build up 
separate schools for equality in education and pointed with 
pride to the large advances that they had made. They 
showed many actual physical accomplishments and the 
establishment of a school which they claimed was an equal 
in many respects and superior in some respects to the 
school maintained for white students. The Court of Ap­
peals for the 4th Circuit in this case, speaking through 
Judge Soper, meets this issue without fear or evasion and 
says:

“ These circumstances are worthy of consideration 
by any one who is responsible for the solution of a 
difficult racial problem; but they do not meet the com­
plainants ’ case or overcome the deficiencies which it 
discloses. Indeed the defense seeks in part to avoid 
the charge of inequality by the paternal suggestion 
that it would be beneficial to the colored race in North 
Carolina as a whole, and to the individual plaintiffs in 
particular, if they would cooperate in promoting the 
policy adopted by the State rather than seek the best 
legal education which the State provides. The. duty 
of the federal courts, however, is clear. We must give 
first place to the rights of the individual citizen, and 
when and where he seeks only equality of treatment 
before the law, his suit must prevail. It is for him to 
decide in which direction his advantage lies.”

In the instant case, the Plaintiffs produced a large num­
ber of witnesses. It is significant that the Defendants 
brought but two. These last two were not trained educa­
tors. One was an official of the Clarendon schools who said 
that the school system needed improvement and that the 
school officials were hopeful and expectant of obtaining 
money from State funds to improve all facilities. The 
other witness, significantly named Crow, has been recently 
employed by a commission just established, which it is 
proposed, will supervise educational facilities in the State



71

and will handle monies if, as and when the same are re­
ceived sometime in the future. Mr. Crow did not testify 
as an expert on education although he stated flatly that he 
believed in separation of the races and that he heard a 
number of other people say so, including some Negroes, 
but he was unable to mention any of their names. Mr. 
Crow explained what was likely and liable to happen under 
the 1951 State Educational Act to which frequent reference 
was made in argument on behalf of the Defense.

It appears that the Governor of this State called upon 
the legislature to take action in regard to the dearth of 
educational facilities in South Carolina pointing out the 
low depth to which the State had sunk. As a result, an act 
of the legislature was adopted (this is a part of the General 
Appropriations Act adopted at the recent session of the 
legislature and referred to as the 1951 School Act). This 
act provides for the appointment of a commission which is 
to generally supervise educational facilities and imposes 
sales taxes in order to raise money for educational pur­
poses and authorizes the issuance of bonds not to exceed 
the sum of $75,000,000 for the purpose of making grants to 
various counties and school districts to defray the cost of 
capital improvement in schools. The commission is granted 
wide power to accept applications for and approve such 
grants as loans. It is given wide power as to what schools 
and school districts are to receive monies and it is also pro­
vided, that from the taxes there are to be allocated funds 
to the various schools based upon the enrollment of pupils. 
Nowhere is it specifically provided that there shall be 
equality of treatment as between whites and Negroes in 
the school system. It is openly and frankly admitted by 
all parties that the present facilities are hopelessly dis- 
proportional and no one knows how much money would be 
required to bring the colored school system up to a parity 
with the white school system. The estimates as to the cost 
merely of equalization of physical facilities run anywhere 
from forty to eighty million dollars. Thus, the position 
of the Defendants is that the rights applied for by the 
Plaintiffs are to be denied now because the State of South 
Carolina intends (as evidenced by a general appropriations



72

bill enacted by the legislature and a speech made by its 
Governor) to issue bonds, impose taxes, raise money and do 
something about the inadequate schools in the future. 
There is no guarantee or assurance as to when the money 
will be available. As yet, no bonds have been printed or 
sold. No money is in the treasury. No plans have been 
drawn for school buildings or order issued for materials. 
No allocation has been made to the Clarendon school dis­
trict or any other school districts and not even application 
blanks have, as yet, been printed. But according to Mr. 
Crow, the Clarendon authorities have requested him to 
send them blanks for this purpose if, as and when they 
come into being. Can we seriously consider this a bona- 
fide attempt to provide equal facilities for our school 
children ?

On the other hand, the Plaintiffs brought many witnesses, 
some of them of national reputation in various educational 
fields. It is unnecessary for me to review or analyze their 
testimony. But they who had made studies of education 
and its effect upon children, starting with the lowest grades 
and studying them up through and into high school, un­
equivocally testified that aside from inequality in housing 
appliances and equipment, the mere fact of segregation, 
itself, had a deleterious and warping effect upon the minds 
of children. These witnesses testified as to their study and 
researches and their actual tests with children of varying 
ages and they showed that the humiliation and disgrace of 
being set aside and segregated as unfit to associate with 
others of different color had an evil and ineradicable effect 
upon the mental processes of our young which would re­
main with them and deform their viewT on life until and 
throughout their maturity. This applies to white as well 
as Negro children. These witnesses testified from actual 
study and tests in various parts of the country, including 
tests in the actual Clarendon School district under con­
sideration. They showed beyond a doubt that the evils 
of segregation and color prejudice come from early training. 
And from their testimony as well as from common experi­
ence and knowledge and from our own reasoning, we must 
unavoidably come to the conclusion that racial prejudice is



73

something that is acquired and that that acquiring is in 
early childhood. When do we get our first ideas of religion, 
nationality, and the other basic ideologies? The vast num­
ber of individuals follow religious and political groups be­
cause of their childhood training. And it is difficult and 
nearly impossible to change and eradicate these early prej­
udices, however, strong may be the appeal to reason. There 
is absolutely no reasonable explanation for racial prejudice. 
It is all caused by unreasoning emotional reactions and these 
are gained in early childhood. Let the little child’s mind 
be poisoned by prejudice of this kind and it is practically 
impossible to ever remove these impressions however many 
years he may have of teaching by philosophers, religious 
leaders or patriotic citizens. If segregation is wrong then 
the place to stop it is in the first grade and not in graduate 
colleges.

From their testimony, it was clearly apparent, as it 
should be to any thoughtful person, irrespective of having- 
such expert testimony, that segregation in education can 
never produce equality and that it is an evil that must be 
eradicated. This case presents the matter clearly for ad­
judication and I am of the opinion that all of the legal 
guideposts, expert testimony, common sense and reason 
point unerringly to the conclusion that the system of segre­
gation in education adopted and practiced in the State of 
South Carolina must go and must go now.

Segregation is per se inequality.
As heretofore shown, the courts of this land have stricken 

down discrimination in higher education and have declared 
unequivocally that segregation is not equality. But these 
decisions have pruned away only the noxious fruits. Here 
in this case, we are asked to strike its very root. Or rather, 
to change the metaphor, we are asked to strike at the cause 
of infection and not merely at the symptoms of disease. 
And if the courts of this land are to render justice under 
the laws without fear or favor, justice for all men and all 
kinds of men, the time to do it is now and the place is in the 
elementary schools where our future citizens learn their 
first lesson to respect the dignity of the individual in a 
democracy.



74

To me the situation is clear and important, particularly 
at this time when our national leaders are called upon to 
show to the world that our democracy means what it says 
and that it is a true democracy and there is no under-cover 
suppression of the rights of any of our citizens because of 
the pigmentation of their skins. And I had hoped that this 
Court would take this view of the situation and make a 
clear cut declaration that the State of South Carolina should 
follow the intendment and meaning of the Constitution of 
the United States and that it shall not abridge the priv­
ileges accorded to or deny equal protection of its laws to 
any of its citizens. But since the majority of this Court 
feel otherwise, and since I cannot concur with them or join 
in the proposed decree, this Opinion is filed as a Dissent.

(S.) J. W a t ie s  W a r in g ,
United States District Judge.

Charleston, South Carolina 
Date: June 21,1951

A True Copy, Attest 
(S.) E r n e s t  L. A l l e n ,
Clerk of U. S. District Court 

East. Dist. So. Carolina

APPENDIX “ B”
Arkansas: Brown v. Ramsey, 185 F. (2d) 225 (C.C.A., 

8th); Black v. Lenderman, 156 Ark. 476, 246 S. W. 876; 
State ex rel. Black v. Board of Directors, 154 Ark. 176, 242 
S. W. 545; Wesley v. Baker, 153 Ark. 529, 241 S. W. 14; 
Maddox v. Neal, 45 Ark. 121; County Court v. Robinson, 27 
Ark. 116.

Delaware: See Board of Education v. Griffin, 9 Houston 
334, 32 A. 775.

District of Columbia: Carr v. Corning, 182 F. (2d) 14 
(D. C .); Wall v. Oyster, 36 App. D. C. 50.

Georgia: Gumming v. Board of Education, 103 Ga. 641, 
29 S. E. 488, affirmed 175 U. S. 528; Reid v. Mayor of Eaton- 
ton, 80 Ga. 755, 6 S. E. 602. See also State Board of Edu­



75

cation v. Board of Public Education, 186 Gra. 783, 199 S. E. 
641; Blodgett v. Board of Education, 105 Ga. 463, 30 S. E. 
561.

Kentucky: Woodford County Board of Education v.
Board of Education, 264 Ky. 245, 94 S. W. (2d) 687; Warren 
v. Board of Education, 258 Ky. 212, 79 S. W. (2d) 681; 
Board of Education v. Fultz, 241 Ky. 265, 43 S. W. (2d) 707, 
County Board of Education v. Bunger, 240 Ky. 155, 41 S. W. 
(2d) 931; State Board of Education v. Brown, 232 Ky. 434, 
23 S. W. (2d) 948; Raley v. Board of Education, 224 Ky. 50, 
5 S. W. (2d) 484; Louisville, H. £  St. L. By. v. Powell, 213 
Ky. 563, 281 S. W. 532; Commonwealth v. Sebree Deposit 
Bank, 202 Ky. 589, 260 S. W. 388; Fall v. Read, 194 Ky. 135, 
238 S. W. 137; Wright v. Lyddan, 191 Ky. 58, 229 S. W. 74; 
City of Pineville v. Moore, 190 Ky. 357, 227 S. W. 477; 
Shadrock v. Board of Trustees, 188 Ky. 345, 222 S. W. 78; 
Mueller v. Phillips, 186 Ky. 657, 217 S. W. 1010; Moss v. 
City of Mayfield, 186 Ky. 330, 216 S. W. 842; 181 Ky. 303, 
204 S. W. 86,181 Ky. 810, 205 S. W. 904; Trustees of Colored 
Schools v. Trustees of White Schools, 180 Ky. 574, 203 S. W. 
520; Daviess County Board of Education v. Johnson, 179 
Ky. 34, 200 S. W. 313; Miller v. Feather, 176 Ky. 268, 195 S. 
W. 449; Board of Trustees v. West, 163 Ky. 568, 174 S. W. 
10; Thornton v. White, 162 Ky. 796, 173 S. W. 167; Grady v. 
Larue County Board of Education, 149 Ky. 49, 147 S. W. 
928; Mullins v. Belcher, 142 Ky. 673,134 S. W. 1151; Prowse 
v. Board of Education, 134 Ky. 365,120 S. W. 307; Crosby y. 
City of Mayfield, 133 Ky. 215,117 S. W. 316; Cross v. Board 
of Trustees, 121 Ky. 469, 89 S. W. 506; Board of Trustees v. 
Morris, 24 Ky. L. 1420, 71 S. W. 654; Harrodsburg District 
v. Colored School District, 49 S. W. 538 (K y .); Davenport v. 
Cloverport, (D. C., D. Ky.) 72 P. 689 (D. K y .) ; Roberts v. 
Louisville School Board, 16 Ky. L. 181, 26 S. W. 814; Eakins 
v. Eakins, 20 S. W. 285 (K y .); Norman v. Boas, 85 Ky. 557, 
4 S. W. 316; Dawson v. Lee, 83 Ky. 49; Cdaybrook v. City of 
Oivensboro, 16 F. 297 (D. K y .); Marshall v. Donovan, 73 Ky. 
681. See also Thornton v. White, 162 Ky. 796,173 S. W. 167; 
Munfordville Mercantile Co. v. Board of Trustees, 155 Ky. 
382, 159 S. W. 954; Commonwealth ex rel. Trustees v. Fer­
guson, 128 S. W. 95 (K y .); Taylor v. Russell, 117 Ky. 539, 
78 S. W. 411; Hickman College v. Trustees, 111 Ky. 944, 65



76

S. W. 20; Board of Education v. Trustees of Colored School 
District, 18 Ky. L. 103, 35 S. W. 549.

Louisiana: Bertonneau v. Board of School Directors, 3 
Woods 177, 3 Fed. Cas. 294 No. 1361 (C.C. Ky.). See also 
State ex rel. Dellande v. School Board, 33 La. Ann. 1469.

Maryland: Williams v. Zimmerman, 172 Md. 568, 192 A. 
353.

Mississippi: Bryant v. Barnes, 106 S. 113 (M iss.); Rice 
v. Gong Lum, 139 Miss. 760, 104 S. 105, affirmed 275 U. S. 
78; Barrett v. Cedar Hill Consolidated School District, 123 
Miss. 370, 85 S. 125; Trustees v. Board of Supervisors, 
115 Miss. 117, 75 S. 833; Moreau v. Grandich, 114 Miss. 560, 
75 S. 434; McFarland v. Goins, 96 Miss. 67, 50* S. 493; 
Christman v. City of Brookhaven, 70 Miss. 477, 12 S. 458. 
See also Myers v. Board of Supervisors, 156 Miss. 251, 125 
S. 718; Bond v. Tij Fung, 148 Miss. 462,114 S. 332.

Missouri: State ex rel. Herman v. St. Louis County
Court, 311 Mo. 167, 277 S. W. 934; Dehart v. School District, 
214 Mo. App. 651, 263 S. W. 242; State ex rel. Logan v. 
Shouse, 257 S. W. 827 (Mo. A pp .); State ex rel. Carrollton 
School District v. Gordon, 231 Mo. 547, 133 S. W. 44; State 
ex rel. Morehead v. Cartwright, 122 Mo. App. 257, 99 S. W. 
48; Lehew v. Brummell, 103 Mo. 546, 15 S. W. 765; State ex 
rel. Humphries v. Thompson, 64 Mo. 26.

North Carolina: Blue v. Durham Public School District, 
95 F. Supp. 441 (M. D. N. C .); Messer v. Smathers, 213 N. C. 
183, 195 S. E. 376; Galloway v. Board of Education, 184 N. 
C. 245,114 S. E. 165; Medlin v. County Board of Education, 
167 N. C. 239, 83 S. E. 483; Johnsons. Board of Education, 
166 N. C. 468, 82 S. E. 832; Whitford v. Board of Commis­
sioners, 159 N. C. 160, 74 S. E. 1014; Williams v. Bradford, 
158 N. C. 36, 73 S. E. 154; Bonitz v. Trustees of Ahoskie 
School District, 154 N. C. 375, 70 S. E. 735; Gilliland v. 
Board of Education, 141 N. C. 482, 54 S. E. 413; Smith v. 
School Trustees, 141 N. C. 143, 53 S. E. 524; Lowery v. 
School Trustees, 140 N. C. 33, 52 S. E. 267; Hooker v. Town 
of Greenville, 130 N. C. 472, 42 S. E. 141; Hare v. Board of 
Education, 113 N. C. 10,18 S. E. 55; McMillan v. School Com­
mittee, 107 N. C. 609, 12 S. E. 330; Duke v. Brown, 96 N. C, 
127, 1 S. E. 873; Markham v. Manning, 96 N. C. 132, 2 S. E. 
40; Riggsbee v. Town of Durham, 94 N. C. 800; Puitt v. Gas­



77

ton County Commissioners, 94 N. C. 709. See also Storey v. 
Board of Commissioners, 184 N. C. 336,114 S. E. 493.

Oklahoma: Muskogee School District v. Hunnicutt, 51 F. 
(2d) 528 (E. D. Okl.) affirmed 283 U. S. 810; American State 
Bank of Boynton v. Board of Commissioners, 143 Okl. 1, 
266 P. 902; Board of Commissioners v. School District, 137 
Okl. 193, 279 P. 326; Board of Commissioners v. School 
District, 135 Okl. 248, 275 P. 302; School District v. Board of 
Commissioners, 135 Okl. 1, 275 P. 302; Moore v, Porterfield, 
113 Okl. 234, 241 P. 346; State ex rel. Gumm v. Albritton, 98 
Okl. 158, 224 P. 511; Jones v. Board of Education, 90 Okl. 
233, 217 P. 400; Jelsma v. Butler, 80 Okl. 46, 194 P. 436; 
Jumper v. Lyles, 77 Okl. 57, 185 P. 1084; Cole v. District 
School Board, 32 Okl. 692,123 P. 426; Olson v. Logan County 
Bank, 29 Okl. 391, 118 P. 572; School District v. Overholser, 
17 Okl. 147, 87 P. 665; Board of Education v. Board of Com­
missioners, 14 Okl. 322, 78 P. 455; School District v. Cap. 
Nat. Bank, 7 Okl. 45, 54 P. 309; Porter v. County Commis­
sioners, 6 Okl. 550. See also School District v, Crack County 
Commissioners, 135 Okl. 1, 275 P. 292; Board of Education 
of Sapulpav. Board of Commissioners, 127 Okl. 132, 260 P. 
22; Board of Education v. Excise Board, 86 Okla. 24, 206 P. 
517; Lusk v. White. 68 Okl. 316, 173 P. 1128; Cotteral v. 
Barker, 34 Okl. 533, 126 P. 211.

South Carolina : Poivell v. Hargrove, 136 S. C. 345, 134 
S. E. 380; Tucker v. Blease, 97 S. C. 303, 81 S. E. 668.

Tennessee: Greenwood v. Rickman, 145 Tenn. 361, 235 
S. W. 425.

Virginia: Carter v. School Board of Arlington County, 
182 F. (2d) 531 (C.C.A., 4th) reversing 87 F~. Supp. 745; 
Corbin v. County School Board of Pulaski County, 177 F. 
(2d) 924 (C.C.A., 4th) Reversing 84 F. Supp. 253; Smith v. 
School Board of King George County, 82 F. Supp. 167 (E. 
D, V a .); Ashley v. School Board of Gloucester County, 82 F. 
Supp. 167 (E. D. V a .); Eubank v. Boughton, 98 Va. 499, 36 
S. E. 529; Kinnaird v. Miller’s Exor., 25 Grat. 107.

West Virginia: Williams v. Board of Education, 45 W. Va. 
199, 31 S. E. 985; Martin v. Board of Education, 42 W. Va. 
514, 26 S.E. 348.

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