Briggs v. Elliot Statement as to Jurisdiction No. 816

    SU P R E M E  COURT OF TH E U N IT E D  S T A T E S

OCTOBER TERM, 1951

No. 816

HARRY BRIGGS, JR., ET AL.,

vs.
Appellants,

R. W. ELLIOTT, Chairman ; J. D. CARSON and GEORGE 
KENNEDY, Members op the B oard op Trustees op 
S chool D istrict No. 22, Clarendon County, S. C., et al.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OP SOUTH CAROLINA

STATEMENT AS TO JURISDICTION

H arold R. B oulware,
Spottswood W. R obinson, III, 
R obert L. Carter,
T hurgood Marshall,

Counsel for Appellants.
George E. C. H ayes,
A rthur D. Shores,
J ames M. Nabrit,
A . T. W alden,

Of Counsel.



INDEX

T able op Cases
Page

Adamson v. California, 332 U.S. 46............................  26
Air-Way Electric Appliance Corp. v. Day, 266 U.S.

71 ................................................................................ 29
Aldridge v. United States, 283 U.S. 308....................... 29
Atlantic Coast Line Railroad Co. v. Chance, 186 F.

2d 879 (C. A. 4th, 1951), cert. den. 341 U.S. 941...  . 28
Belton v. Gebhard, — Del. Ch. —, — A. 2d — (de­

cided April 1, 1952)...............  38
Board of Supervisors v. Wilson, 340 U.S. 909...........  39
Borden’s Farm Products Co. v. Baldwin, 293 U.S.

194 ............................................................'................. 21
Briggs v. Elliott, 342 U.S. 350...................................... 2, 8
Buchanan v. Warley, 245 U.S. 60..................................  25, 28
Carter v. County School Board of Arlington County,

Virginia, 182 F. 2d 531 (C. A. 4th, 1950)................... 14
Cassell v. Texas, 339 U.S. 282........................................ 29
City of Birmingham, v. Monk, 185 F. 2d 859 (C. A. 5th,

1951), cert. den. 341 U.S. 940...................................... 28
City of Richmond v. Deans, 281 U.S. 704................  28
Collins v. Oklahoma State Hospital, 76 Okla. 229

(1919).......................................................................... 35
Concordia Fire Insurance Co. v. Illinois, 292 U.S.

535 ................................................................................ 29
Connolly v. Union Sewer Pipe Co., 184 U.S. 540.........  24
Cummings v. Board of Education, 175 U.S. 528.........  13
Endo, Ex parte, 323 U.S. 283.......................................  22, 26
Flood, v. Evening Post Publishing Co., 71 S.C. 122,

50 S. E. 641 (1905) ................... ................................. 33
Flood v. News and Courier Co., 71 S.C. 112, 50 S.E.

637 (1905) ..................................................................  33
Gong Lum v. Rice, 275 U.S. 78...................................... 13,15
Graham v. Brotherhood of Locomotive Firemen and

Engmemen, 338 U.S. 232 ........................................ 28
Guinn v. United States, 238 U.S. 347..........................  28

•— 2178



11 INDEX

Hale v. Kentucky, 303 U.S. 613....................................  29
Harmon v. Tyler, 273 U.S. 668....................................  28
Hartford Steam. Boiler Inspection and Ins. Co. v. Har­

rison, 301 U.S. 459.....................................................  29
Henderson v. United States, 339 U.S. 816................... 28
Hirabayashi v. United States, 320 U.S. 81.................  26
Hurd v. Hodge, 334 U. S. 24...................................... 28
Korematsu v. United States, 323 U.S. 214 ............  24, 25, 26
Lane v. Wilson, 307 U.S. 268........................................ 28
Maxwell v. Bugbee, 250 U.S. 525.................................. 24
Mayflower Farms v. TenEyck, 297 U.S. 266...............  29
McKissick v. Carmichael, 187 F. 2d 949 (C. A. 4th,

1951) ..........................................................................  13
McLaurin v. Board of Regents, 339 U.S. 637. . .  2, 13, 32, 38
Missouri ex ret. Gaines v. Canada, 305 U.S. 337.........  38
Morgan v. Virginia, 328 U.S. 373................................  28
Nixon v. Condon, 286 U.S. 73........................................ 28
Nixon v. Herndon, 273 U.S. 536.................................... 25, 28
Oliver, In re, 333 U.S. 257.............................................. 26
Oyama v. California, 332 U.S. 633................................  28
Patton v. Mississippi, 332 U.S. 463...........................  29
Perez v. Sharp, 32 Calif. 2d 711 (1939)....................... 35
Pierre v. Louisiana, 306 U.S. 354................................  29
Plessy v. Ferguson, 163 U.S. 537................................  13
Railroad Co. v. Brown, 17 Wall. [U.S.] 445...............  28
Rice v. Elmore, 165 F. 2d 387 (C. A. 4th, 1947), cert.

den. 333 U.S. 875.................................................  27
Shelley v. Kraemer, 334 U.S. 1 .................................... 28
Sipuel v. Board of Regents, 332 U.S. 631..................... 38
Skinner v. Oklahoma, 316 U.S. 535.........................  22, 29, 30
Smith v. Allwright, 321 U.S. 649................................  28
Southern Railway Co. v. Greene, 216 U.S. 400.........  24, 29
Steele v. Louisville and N.R. Co., 323 U.S. 192.........  23, 28
Stokes v. Great A. and P. Tea Co., 202 S.C. 24, 23

S.E. 2d 823 (1943) ...................................................  33
Strauder v. West Virginia, 100 U.S. 303................... 24
Sir eat / v. Painter, 339 U.S. 629.................................... 13, 38
Takahashi v. Fish and Game Commission, 334 U.S.

410 .......................... ' .................................................  28
Tunstall v. Brotherhood of Locomotive Firemen and 

Enginemen, 323 U.S. 2 1 0 ....................................... 28



INDEX 111

Page
United States v. Carotene Products Co., 304 U.S.

144 ..............................................................................  22,27
United States v. Congress of Industrial Organisa­

tions, 335 U.S. 106 ...................................................  22
Wilson v. Board of Supervisors, 340 U.S. 909...........  2
Wolfe v. Georgia Railway and Electric Co., 2 Ga. App.

499 (1907) ..................‘................................................  35
Yick Wo v. Hopkins, 118 U.S. 356................................ 28
Yu Cong Eng v. Trinidad, 271 U.S. 500....................... 28

Statutes Cited

Code of Laws of South Carolina, Section 5377.........  8,10
Constitution of South Carolina, Article XI, Section 7. 3,9

United States Code, Title 28:
Section 1253 ..........................................................  2
Section 2101 (b) ...........  2
Section 2281 ........................................................... 3, 4
Section 2284 ........................................................... 3, 4

Other A uthorities

American Teachers Association, The Black and White
of Rejections for Military Service (1944).............  31

Berger, The Supreme Court and Group Discrimina­
tion Since 1937, 49 Col. L. Rev. 201 (1949).............  35

Bond, Education of the Negro and the American So­
cial Order (1934) ....................................................... 35

Bunche, Education in Black and White, 5 Journal of
Negro Education 351 (1936)................................... 35

Clark, Negro Children, Educational Research Bulle­
tin (1923) . .................................................................  31

Cooper, The Frustration of Being a Member of a 
Minority Group; What Does It Do To The Indi­
vidual And To His Relationships With Other Peo­
ple? 29 Mental Hygiene 189 (1945) ................ 34, 36, 37

Deutscher and Chein, The Psychological Effects of 
Enforced Segregation: A Survey of Social Science 
Opinion, 26 Journal of Psychology 259 (1948). 36



IV INDEX
Page

Dollard, Caste and Class in a Southern Town (1937).. 32, 34 
Fairman and Morrison, Does the Fourteenth Amend­

ment Incorporate the Bill of Rights? 2 Stanford
L. Rev. 5 (1949) ......................................................... 27, 28

Fraenkel, Our Civil Liberties (1944)..........................  32
Frazier, Psychological Factors in Negro Health, 3

Journal of Social Forces 488 (1925)..................... 37
Hamilton and Braden, The Special Competence of the

Supreme Court, 50 Yale L. J. 1319 (1941).............  24
Heinrich, The Psychology of a Suppressed People

(1937) .........................'............................................... 34
Johnson, Patterns of Negro Segregation (1943).......  32, 35
Klineberg, Negro Intelligence and Selective Migra­

tion (1935) ................................................................. 31
Klineberg, Race Differences (1935)............................  31
McGovney, Racial Residential Segregation by State 

Court Enforcement of Restrictive Agreements, 
Covenants or Conditions in Deeds is Unconstitu­
tional, 33 Calif. L. Rev. 5 (1945) ............................  35

McLean, Group Tension, 2 Journal of American
Medical Women’s Association 479 ( 1937).............  37

McLean, Psychodynamic Factors in Racial Relations,
The Annals of the American Academy of Political
and Social Science 159 (1946)..................................  37

Montague, Man’s Most Dangerous Myth—The Fal­
lacy of Race (1945) ...................................................  31

Moton, What the Negro Thinks (1929)....................... 35
Myrdal, An American Dilemma (1944)......................  32, 34
Notes:

36 Col. L. Rev. 283 (1936).................................... 24
39 Col. L. Rev. 986 (1939 ) .................................... 32, 34
40 Col. L. Rev. 531 (1940).................................... 24
49 Col. L. Rev. 629 (1949).................................... 32, 35
56 Yale L. J. 1059 (1947)...................................... 32, 35

Peterson and Lanier, Studies in the. Comparative 
Abilities of Whites and Negroes, Mental Measure­
ment Monograph (1929)...........................................  31

Prudhomme, The Problem of Suicide in the Ameri­
can Negro, 25 Psychoanalytic Review 187 (1938). . 36



IHDEX V

Page
Bose, America Divided: Minority Group Relations m

the United Stales (1948).......................................... 31
Stouffer, Studies in Social Psychology in World War

11, 1 The American Soldier (1949)..........................  33
Sutherland, Color, Class and Personality (1942). . . .  35
To Secure These Rights, Report of the President’s

Committee on Civil Rights (1947)..........................  34
Tussman & Ten Broek, The Equal Protection of the 

Laws, 37 Cal. L. Rev. 341 (1949)..............................  24



IN THE UNITED STATES DISTRIET EDURT FDR THE 
EASTERN DISTRIET DF SOUTH EARDLINA, 

EHARLESTDN DIVISION

Civil Action No. 2657

HARRY BRIGGS, JR., ET AL., 

vs.
Plaintiffs,

R. W . ELLIOTT, Chairman, 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-appel- 
lants submit herewith their statement particularly dis­
closing the basis upon which the Supreme Court has juris­
diction on appeal to review the judgment of the District 
Court entered in this case.

P art One 

Opinions Below

The majority and dissenting opinions filed at the con­
clusion of the first hearing are reported in 98 F. Supp. 529



2

and copies appear in the Appendix to this Statement.* The 
opinion filed at the conclusion of the second hearing has not 
yet been officially reported. A copy of this opinion also ap­
pears in the Appendix to this Statement.

Jurisdiction

The judgment of the statutory three judge District Court 
was entered on March 13, 1952. A petition for appeal is 
presented to the district court herewith, to wit, on May 10, 
1952. The jurisdiction of the Supreme Court to review this 
decision by direct appeal is conferred by Title 28, United 
States Code, Sections 1253 and 2101(b).

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment in this case: Briggs 
v. Elliott, 342 U. S. 350; Wilson v. Board of Supervisors, 
340 U. S. 909; McLaurin v. Board of Regents, 339 U. S. 
637.

Nature of the Case and Rulings Below

The Constitutional Issue Involved

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

* (C ubbk's N ote.— This opinion is printed as an Appendix in the State­
ment as to Jurisdiction in No. 273, O. T. 1951 and is not reprinted in 
this Statement.)



3

respects inferior io the schools for white children; that the 
defendants excluded the infant plaintiffs from the white 
schools pursuant to Article XI, Section 7, of the Consti­
tution of South Carolina, and Section 5377 of the Code of 
Laws of South Carolina of 1942, which require the segre­
gation of the races in public schools; and that it was im­
possible for the infant plaintiffs to obtain a public school 
education equal to that afforded and available to white chil­
dren 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 
defendants from enforcing them and from making any dis­
tinctions 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 
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 the State’s 
legislative power.

The jurisdiction of a three-judge District Court was in­
voked 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.



4

First Hearing
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 op­
portunities 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 as­
pects 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 re­
maining to be tried was the question of the constitutionality 
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 plaintiffs 1 the defend­
ants introduced testimony that a three per cent sales tax and 
authorization of a $75,000,000 bond issue for improvement 
of schools had recently been adopted by the State of South 
Carolina, and that the State Educational Finance Commis­
sion to supervise the distribution of these funds had just 
been organized and had not even set up rules or proce­
dures.2 About a week before the trial Clarendon County 
had “ inquired”  about making an application for funds.

1 On the grounds that equality within the meaning o f the Fourteenth 
Amendment did not include contemplated future action.

2 It was admitted that although the school population of South Carolina 
was approximately forty to forty-five per cent Negro there were no 
Negroes on the Commission and no Negro employees o f the Commission.



5

The testimony of nine expert witnesses was introduced 
by plaintiffs; two experts in the field of education who of­
fered 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 
similarly 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 segre­
gation of Negro pupils in these schools would in and of it­
self preclude an equality of education offered to white 
pupils or pupils in a non-segregated school. These wit­
nesses not only established their qualifications in their re­
spective fields but also supported their conclusions by ob­
jective and scientific authorities.

One of the experts in the field of child and social psy­
chology testified that he had made special studies of the 
recognized methods of testing the effects of race and seg­
regation on children. He used a test of this type on Negro 
school children including the infant plaintiffs in School 
District No. 22 a few days before the trial. From his gen­
eral experience 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 
inferior status in the society in which they live, have 
been definitely harmed in the development of their 
personalities; that the signs of instability in their per­
sonalities are clear, and I think that every psycholo­
gist would accept and interpret these signs as such.



6

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

“ A. I think it is the kind of injury which would he 
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 any scien­
tific basis for such segregation and exclusion. They testi­
fied that all scientists agreed that there are no fundamental 
biological differences between white and Negro school pu­
pils which would justify segregation. An expert in anthro­
pology testified:

“ The conclusion, then to which I come, is differences 
in intellectual capacity or inability to learn have not 
been shown to exist 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 community 
where other beliefs and attitudes support racial dis­
crimination, it is my belief that such a child will prob­
ably never recover from whatever harmful effect ra­
cial prejudice and discrimination can wreack. ”

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



7

possibility of the defendants obtaining funds to improve 
public schools. The latter witness testified that from his 
experience as a school administrator in Sumter and Co­
lumbia, South Carolina, it would be “ unwise”  to remove 
segregation in public schools in South Carolina. On cross- 
examination, 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.

The judgment in this hearing, one judge dissenting, 
stated that neither the constitutional nor statutory pro­
visions requiring segregation in public schools were in vio­
lation 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 plain­
tiffs were unequal to those offered to white pupils, and 
ordered the defendants “ to furnish to plaintiffs and other 
Negro pupils of said district educational facilities, equip-, 
ment, curricula and opportunities equal to those furnished 
white pupils.”

First Appeal

An appeal from this judgment was allowed on July 20, 
1951 and the appellees filed a motion to dismiss or affirm. 
On December 21, 1951 defendants filed their report in the 
District Court showing progress being made toward equali­
zation of physical facilities in the public schools of Claren­
don County. A copy of this report was forwarded to the 
Supreme Court. On January 28, 1952, the Supreme Court 
Vacated the judgment of the District Court and remanded 
the case to that court in order to obtain the views of the



8

trial court upon the additional facts in the record and to 
give the District Court an opportunity to take whatever 
action it might deem appropriate in light of the report (342 
U. S. 350). Mr. Justice Black and Mr. Justice Douglas dis­
sented on the ground that the additional facts in the report 
were “ wholly irrelevant to the constitutional questions pre­
sented by the appeal to this court’ ’ (342 U. S. 350).

Second Hearing

As soon as the mandate reached the District Court, 
plaintiffs-appellants filed a Motion for Judgment request­
ing an early hearing and a final judgment granting the 
retrial as prayed for in the complaint. Among the reasons 
for this motion plaintiffs alleged:

“ It is, therefore, clear that plaintiffs’ rights guaran­
teed by the Fourteenth Amendment are being violated 
and remain unprotected. The injury is irreparable. 
The only available relief is by injunction against the 
continued denial of their right to equality which is 
brought about by compulsory racial segregation re­
quired by the Constitution and laws of South Carolina. 
(So. Car. Const. Art. XI, Sec. 7: S. C. Code, 1942, 
Sec. 5377)

“ Plaintiffs can get no immediate relief except by 
the issuance of a final judgment of this Court enjoining 
the enforcement of the policy of racial segregation by 
defendants which excludes Negro pupils from the only 
schools where they can obtain an education equal to that 
offered white children.

“ Plaintiffs can get, no permanent relief unless this 
Court declares that the provisions of the Constitution 
and laws of South Carolina requiring racial segrega­
tion in public schools are unconstitutional insofar as 
they are enforced by the defendants herein to exclude 
Negro pupils from the only schools where they can



9

obtain an education equal to that offered white chil­
dren.”

The second hearing was held on March 3, 1952, at which 
time the defendants filed an additional report showing’ 
progress since the December report. The plaintiffs did not 
question the accuracy of these statements of physical 
changes in the making.

At the second hearing the District Court ruled that the 
question of the decision on the validity of segregation stat­
utes was closed by the original judgment and could not 
be argued at that hearing. The District Court also refused 
to rule that, aside from the question of the validity of these 
statutes, the admitted lack of equality of facilities entitled 
plaintiffs to an injunction, restraining defendants from ex­
cluding them from an opportunity to share the superior 
schools and the inferior schools on an equal basis without 
regard to race and color.

On March 13, 1952, the District Court filed an opinion 
and a decree again finding that the educational facilities for 
Negroes were not substantially equal to those afforded 
white pupils. Despite this finding the District Court held 
that “ plaintiffs are not entitled to an injunction forbidding 
segregation in the public schools of School District No. 1.”

The petition for appeal was presented and allowed on 
May 10,1952.

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.”



10

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.”

Questions Presented

1. Whether the District Court erred in denying a perma­
nent injunction restraining appellees from enforcing the 
laws of South Carolina requiring racial segregation in 
public schools of Clarendon County?

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 f

3. Whether the District Court erred in predicating its 
decision in the doctrine of Plessy v. Ferguson and in dis­
regarding the rationale of the applicable decisions of 
Sweatt v. Painter and McLaurin v. Board of Regents?

4. Whether the District Court erred in refusing to grant 
immediate and effective relief against the unconstitutional 
practice of excluding appellants from an opportunity to 
share the public school facilities of Clarendon County on 
an equal basis with other students without regard to race 
or color?

Past! Two

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

Summary
The district court has failed to apply the basic substan­

tive teaching of the Supreme Court in McLaurin v. Okla­
homa and Sweatt v. Painter that there are factors beyond



11

relative physical facilities and curricular offerings which 
established the failure of segregated public education to 
meet the constitutional standard of equal protection of the 
laws. The court erroneously restricted the doctrine of the 
McLaurin case to graduate education despite the fact that 
considerations of like character and equivalent force apply 
to elementary and high school education and were placed 
before the district court here. It is of very great impor­
tance to pupils, parents, state officers and the general public 
that the application of these recent decisions of the Supreme 
Court to education below the graduate level be made clear.

The district court affirmatively and erroneously ruled 
that South Carolina’s absolute constitutional and statutory 
requirement of racial segregation in public education is 
valid. In so doing the court presently and for the future 
has debarred Negro school children from the enjoyment of 
equal protection of the laws. For the parties have agreed 
and the district court has found that the public schools 
maintained for white children in Clarendon County are 
much superior to those maintained for colored children and 
that present inequalities constitute a denial of equal pro­
tection. By permitting children to share the good and bad 
schools without regard to race, and only in this way, could 
Clarendon County forthwith have corrected and removed 
this denial of constitutional right. But the decree of the 
district court upholding the school segregation law actually 
precludes the school officials from granting such effective 
relief. It is as grave as it is extraordinary, and certainly 
calls for correction, that a court of the United States should 
enter a decree which by the court’s own findings actually 
requires that a denial o f Constitutional right be continued 
for a time.

Beyond this, in affirmatively ordering the equalization of 
segregated school facilities throughout Clarendon County 
the district court has made itself responsible for a continu-



12

mg detailed comparative evaluation of white and colored 
schools and their facilities. The factors to be measured are 
complex and variable. Relative evaluations, difficult at 
any time, lose validity from day to day. Federal supervi­
sion of details of state administration, rarely appropriate, 
is an impossible task here. Thus, serious considerations of 
federal-state relationships point to the importance of cor­
recting the inappropriate remedy decree in this case.

In larger aspect the district court, in sustaining the segre­
gated school laws, has rejected the contention and demon­
stration that racial segregation in public education falls 
within that group of unreasonable classifications which the 
equal protection clause forbids. It also has rejected the 
related contention and demonstration that state enforced 
segregation of Negroes in America inevitably offends the 
equal protection clause because it is intended as a stigma­
tizing badge of inferiority and i  ̂ generally so recognized. 
It is difficult to imagine larger or more far reaching claims 
of vital discrepancy between the order a state is imposing 
upon those within its borders and the restraints which the 
Constitution imposes throughout the nation. Such ques­
tions call for decisive adjudication by the highest judicial 
authority.

I

The District Court Erred in Refusing to Enjoin the Enforce­
ment of the Segregation Laws of South Carolina Which 
Prevented Appellants from Sharing the Public School 
Facilities of Clarendon County on an Equal Basis With 
Others Without Regard to Race and Color.

The issue of the validity of the provisions of the laws 
of South Carolina requiring racial segregation in public 
schools was clearly joined in the pleadings in this case and 
had been preserved. The District Court has twice decreed



13

that these laws are valid and has twice refused to enjoin 
their enforcement.

The decision herein appealed from upheld the validity 
of the provisions of the constitution and laws of South 
Carolina requiring segregation of the races on the follow­
ing 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, with which the fed­
eral courts are powerless to interfere.”  (Italics supplied); 
(2) subject to the observance of the fundamental rights and 
liberties guaranteed by the Federal Constitution, each state 
is free to determine how it shall exercise its police power, 
i. e., the power to legislate with respect to the safety, morals, 
health and general welfare; (3) the decisions in Plessy v. 
Ferguson, 163 U. S. 537; Gumming v. Board of Education, 
175 U. S. 528; and Gong Lum v. Rice, 275 IT. S. 78, hold 
that as long as physical 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. Okla­
homa State Regents, 339 U. S. 637, nor McKissick v. Car­
michael, 187 F. 2d 949 (CA 4th 1951) can be applied to this 
case because the Sweatt case, supra, did not overrule Plessy 
v. Ferguson, supra, and both the Sweatt case, supra, and 
the McKissick case, su/pra, were decided on the question of 
equality, and the McLaurin case, supra, “ involved humiliat­
ing and embarrassing treatment of a Negro graduate 
student to which no one should have been required to sub­
mit. Nothing of the sort is involved here” ; (5) there is a 
difference between education on the graduate level and on 
lower levels of education.

In the instant case there is no dispute that Negroes are 
relegated to inferior schools and denied an opportunity to 
share in_the superior facilities because of the provisions of



14

the constitution and laws of South Carolina requiring racial 
segregation in public schools.

It is obvious that a majority of the District Court at 
the first hearing and all three of the judges of the District 
Court for the second hearing3 considered their primary 
duty and responsibility to be to uphold the validity of the 
state statutes requiring segregation. They considered the 
limit of their jurisdiction to be an order requiring equality 
of facilities within the framework of rigid racial segrega­
tion.

Even after the cause was remanded to the District Court 
by the Supreme Court, the District Court merely adhered to 
its original position that: “ In directing that the school 
facilities [meaning physical facilities] afforded Negroes 
within the district be equalized promptly with those af­
forded white persons, we are giving plaintiffs all the relief 
that they can reasonably ask and the relief that is ordi­
narily granted in cases of this sort. See Carter v. Comity 
School Board of Arlington County, Virginia, 4 Cir. 182 P. 
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.”

In the Sweatt case, supra, and again in the McLci/wrin 
case, supra, the Supreme Court examined the record to 
determine in each case whether the segregation practices 
denied the individual involved the equality of opportunity 
guaranteed by the Fourteenth Amendment. This was, done 
without regard to the “ doctrine of Plessy v. Ferguson.”

8 District Judge Waring who filed a vigorous dissenting opinion in the 
first hearing (98 F. Supp. 538-548) retired prior to the second. hearing 
and was replaced by Circuit Judge Dobie. (Tr. 2d Hearing, pp. 1-3.)



15

In the Sweatt case, supra, the Supreme Court refused to 
either affirm or reconsider the “ doctrine of Plessy v. 
Ferguson. ’ ’

In the instant case, however, the District Court took the 
position that the doctrine of Plessy v. Ferguson as applied 
in Gong Lum v. Rice (275 U. S. 78), was controlling, and 
federal courts were thereby powerless to do anything more 
than to order equalization of physical facilities within a 
segregated framework. The District Court, therefore, in 
direct opposition to the rationale of the Sweatt and Mc- 
Laurin decisions disregarded all of the expert testimony 
as to the unreasonableness of the classification and the in­
jury to the children involved, including the infant appel­
lants.

The District Court held that the Sweatt ease did not ap­
ply to this case because the decision in that case was based 
upon the inequality of the “ educational facilities”  offered 
the white and Negro law students. The opinion also held 
that “ McLaurin v. Oklahoma State Regents involved 
humiliating and embarrassing treatment of a Negro gradu­
ate 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 humiliating 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 McLaurin.

Dr. Kenneth Clark, an expert in the fields of social and 
child psychology who tested the infant plaintiffs and other 
Negro school children in District No. 22, testified:

“ A. The conclusion which I wTas forced to reach was 
that these children in Clarendon County, like other 
human beings who are subjected to an obviously in­
ferior status in the society in which they live, have been 
definitely harmed in the development of their person­



16

alities; that the signs of instability in their personali­
ties 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, be­
cause 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 
inferiority. 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 
medical 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, be­
ginning 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 
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



17

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 wreach. ’ ’

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

. . And, secondly, that there is basically im­
plied 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 Political 
process. And, based upon studies which we 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 de­
sirable from the standpoint of good citizenship; that 
the segregation of white and Negro students in the 
schools prevents them from gaining an understanding 
of the needs and interests of both groups. Secondly, 
segregation breeds suspicion and distrust in the ah-



18

sence 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, carrying that 
over into the field of citizenship, when a community 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 segregation 
exists as a pattern in education, it makes that coop­
eration more difficult. Next, in terms of voting and 
participating in the electorial process, our various 
studies indicate that those people who are low in liter­
acy 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 conducted 
tests of the effects of racial segregation and racial tensions 
among children, testified:

“ Q. Mrs. Trager, in your opinion, could these in­
juries 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 Redfield, an expert in the field of anthropology, 
testified as to the unreasonableness of racial classification 
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 sit­
uation, what, if any difference, is there between the 
accomplishment 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 prepara­
tion?



19

“ 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 lower court was based upon 
the assumption that equality of rig’hts guaranteed by the 
Fourteenth Amendment was limited to physical equality 
such as facilities, equijjment and curricula. Expert wit­
nesses for plaintiffs testified not only as to the inevitable 
harmful effect of segregation on public school children but 
also as to the tests showing the irreparable harm to the 
plaintiffs and other Negro school children in Clarendon 
County. This testimony was disposed of by the District 
Court 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 seg- 
gregated 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 con­
ducting public education in South Carolina is with seg- 
gregated 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 
applied. In some states, the legislatures may well de­
cide that segregation in public schools should be abol­
ished, in others that it should be maintained—all de­
pending upon 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 at­
tempt to prescribe 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



20

interference with local affairs by an agency of the fed­
eral government, but also in the substitution of the 
judicial for the legislative process in what is essentially 
a legislative matter.”  (Majority Opinion, First Hear­
ing)

The testimony on behalf of the plaintiffs was by expert 
witnesses of unimpeachable qualifications. The record in 
this case presented 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 irreparable 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 legisla­
tive argument. This is competent expert testimony from 
recognized scientists directed toward the factors recog­
nized by the Supreme Court as determinative of the validity 
of similar statutory provisions. This testimony stands un­
contradicted in the record.

In the McLaurin case, the Supreme Court looked beyond 
the admitted equality of physical facilities, curriculum, etc., 
and found that the State of Oklahoma ‘ ‘ sets McLaurin apart 
from the other students. The result is that appellant 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 deprive him of his personal and pres­
ent 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



21

inevitably would have concluded that the segregation laws 
could not validly be enforced against the plaintiffs. In­
stead, it considered the “ separate but equal”  doctrine of 
Plessy v. Ferguson, supra, controlling, and limited the ap­
plication of the equal protection clause exclusively to phys­
ical facilities.

In disregarding the testimony attacking the validity of 
the segregation laws involved, the District Court did more 
than reject the rationale of the McLaurin decision. It also 
rejected other decisions of the Supreme Court which re­
quire that clear proof of the unreasonableness of a statu­
tory classification and of the unlawful injury resulting 
therefrom, as was produced in this case, must override 
the normal disposition of courts to uphold state legislative 
policy.

The Supreme Court has never sanctioned a finding of 
constitutional validity of legislation which was made by 
disregarding facts disclosing its true operation and effect 
as was done in the instant case. While it has often been 
said that statutes are considered presumptively valid, the 
presumption of constitutionality is merely

“  * * * a presumption of fact of the existence of 
factual conditions supporting the legislation. As such 
it is a rebuttable presumption. * * * It is not a con­
clusive presumption, or a rule of law which makes leg­
islation, invulnerable to constitutional assault, * * * ”  
Chief Justice Hughes in Borden’s Farm Products Go. 
v. Baldwin, 293 U. S. 194.

In recent years the Supreme Court has emphasized that 
governmental action affecting certain classes of personal 
rights fundamental in a democratic order must be sub­
jected to the most rigid scrutiny. Where such action is 
challenged, normal presumptions of validity are at best



22

minimal and certainly disappear in the face of clear proof 
of injury to the complaining party.

In United States v. Carotene Products Co., 304 U. S. 144, 
152, note, Mr. Justice Stone, speaking for the Court said:

‘ ‘ There may be narrower scope for operation of the 
presumption of constitutionality when legislation ap­
pears on its face to be within a specific prohibition of 
the Constitution, such as those of the first ten Amend­
ments, which are deemed equally specific when held to 
be embraced within the Fourteenth. See Stromberg v. 
California, 283 IT. S. 359, 369, 370, 51 S. Ct. 532, 535, 
536, 75 L. Ed. 1117, 73 A. L. R. 1484; Lovell v. Griffin, 
303 IT. S. 444, 58 S. Ct. 777, 82 L. Ed. 949, decided 
March 28, 1938. * * *

“ Nor need we inquire whether similar considerations 
enter into the review of statutes directed at particular 
religious . . .  or national . . .  or racial minori­
ties. . . . ”

The Supreme Court has repeatedly pointed out that the 
scope of the presumption of constitutionality is greatly nar­
rowed: “ when legislation appeared in its face to violate a 
specific provision of the Constitution. ’ ’ Ex parte Endo, 323 
IT. S. 283, 299. Mr. Chief Justice Stone, concurring in 
Skinner v. Oklahoma, 316 IT. S. 535, 544, stated:

‘ ‘ There are limits to the extent to which the presump­
tion of constitutionality can be pressed, especially when 
the liberty of the person is concerned (See United 
States v. Carotene Products Co., 304 IT. S. 144, 152, 
note 4, 82 L. Ed. 1234,1241, 58 S. Ct. So. 78) and where 
the presumption is resorted to only to dispense with a 
procedure which the ordinary dictates of prudence 
would seem to demand for the protection of the indi­
vidual from arbitrary action.”

Mr. Justice Rutledge, concurring in United States v. Con­
gress of Industrial Organisations, 335 U. S. 106,140, stated:



23

“ As the Court has declared repeatedly, that judg­
ment does not bear the same weight and is not entitled 
to the same presumption of validity, when the legisla­
tion on/ its face or in specific application restricts the 
rights of conscience, expression and assembly protected 
by the Amendment, as are given to other regulations 
having no such tendency. The presumption rather is 
against the legislative intrusion into these domains. 
For, while not absolute, the enforced surrender of those 
rights must be justified by the existence and immediate 
impendency of dangers to the public interest which 
clearly and not dubiously outweigh those involved in 
the restrictions upon the very foundation of demo­
cratic institutions, grounded as those institutions are 
in the freedoms of religion, conscience, expression and 
assembly. Hence doubtful intrusions cannot be allowed 
to stand consistently with the Amendment’s command 
and purpose, nor therefore can the usual presumptions 
of constitutional validity, deriving from the weight of 
legislative opinion in other matters more largely within 
the legislative province and special competence, ob­
tain. ’ ’

Freedom from distinctions based on race, color or an­
cestry ranks high among the rights so safeguarded. “ Dis­
tinctions between citizens solely because of their ancestry 
are by their very nature odious to a free people whose insti­
tutions are founded upon the doctrine of equality. ’ ’ 4 In­
deed: “ Distinctions based on color and ancestry are utterly 
inconsistent with our traditions and ideals.” 5 Other pro­
nouncements by the Supreme Court are: “ Racism is far too 
virulent today to permit, the slightest refusal, in the light 
of a Constitution that abhors it, to expose and condemn.”  
Steele v. Louisville & N. A. Co., 323 IT. S. 192, 209, con­
curring opinion; and “ All legal restrictions, which curtail

4 Hirabayashi v. United States, 320 U.S. 81, 100.
5 JSirabayashi v. United States, cited supra note 4, concurring opinion 

at p. 110.



24

the civil rights of a single racial group are immediately 
suspect. That is not to say that all such restrictions are 
unconstitutional. It is to say that courts must subject them 
to the most rigid scrutiny. Pressing public necessity may 
sometimes justify the existence of such restrictions; racial 
antagonism never can.”  Korematsu v. United States, 323 
U. S. 214, 216.5a

The law considered, the tenderness of the District Court 
toward the segregation policy of the State of South Caro­
lina is unwarranted. That tenderness alone has obscured 
the constitutional infirmity of the statute.

II

Racial Segregation in Public Education Is Invalid

The primary purpose and design of the equal protection 
clause of the Fourteenth Amendment was protection of the 
newly-freed Negroes—“ to assure to the colored race the 
enjoyment of all the civil rights that under the law are en­
joyed by white persons, and to give to that race the protec­
tion of the General Government, in that enjoyment, when­
ever it should be denied by the States.”  Strauder v. West 
Virginia, 100 U. S. 303, 306. Its secondary purpose was to 
assure that all persons similarly situated would be treated 
alike, and that no special groups or classes would be singled 
out for favorable or discriminatory treatment. Maxwell v. 
Bugbee, 250 IT. S. 525; Southern Railway Co. v. Greene, 216 
II. S. 400; Connolly v. Union Sewer Pipe Co., 184 U. S. 540: 
The scope of its secondary objective is broader than its first 
since it condemns arbitrary distinctions, whether based on 
race or not.

5a See also: Tusman & Ten Broek, The Equal Protection of the Laws, 
37 Cal. L. Rev. 341 (1949); Notes 36 Col. L. Rev. 283 (1936), 40 Col. L. 
Rev. 531 (1940); Hamilton & Braden, The Special Competence of the 
Supreme Court, 50 Yale L. J. 1319, 1349-1357 (1941).



25

The equal protection clause was not intended to forbid 
all classifications. Those which are reasonable, and ration­
ally related to an end within the competency of the legisla­
ture, survive its operation. But it does invalidate those 
based solely on race or color. Such classifications not only 
are arbitrary and unreasonable, but are of the very kind 
the equal protection clause was specifically designed to 
prohibit.

A. STATUTORY CLASSIFICATIONS AND OTHER GOVERN­
MENTAL ACTION BASED SOLELY ON RACE OR COLOR 
DENY THE EQUAL PROTECTION OF THE LAW S

The laws of South Carolina require that all Negro pupils 
in Clarendon County attend schools segregated for their 
use exclusively and prohibits them from attending other 
schools in which pupils of all other racial groups are edu­
cated as a matter of course. The clear vice is that the segre­
gated class is defined wholly in terms of race or color— 
‘ ‘ simply that and nothing more. ’ ’ Buchanan v. Warley, 245 
IT. S. 60, 73.

The Supreme Court has held that race is an impermis­
sible basis for classification of individuals by state laws. 
“ States may do a great deal of classifying that it is diffi­
cult to believe rational, but there are limits, and it is * * * 
clear * * * that color cannot be made the basis of a
statutory classification.”  (Mr. Justice Holmes, speaking 
for the Court in Nixon v. Herndon, 273 U. S. 536, 541).

In South Carolina the school which a child is permitted 
to attend depends solely upon his race or color. The Su­
preme Court, in recent decisions, has indicated that stat­
utes which affect individuals according to their race or 
ancestry are, in the absence of an overwhelming public 
necessity, invalid. Korematsu v. United States, 323 U. S.



26

214; and Hirahayashi 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 
people whose institutions are founded upon the doc­
trine of equality. For that reason, legislative classifi­
cation . . . based on race alone has often been held 
to be a denial of equal protection.”  (p. 100)

These 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, obli­
gations, and duties to the state determined without regard 
to his race or color is a fundamental right essential to our 
democratic society.0 State statutes must in addition meet 6

6 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 o f 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 He 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. ICorematsu v. United Stated, 323 U.S. 214; Ex Parte 
Undo, 323 U.S. 282. These cases were under due process clause of the 
Fifth Amendment, but certainly “ it ought not to require argument to 
reject the notion that due process of law meant one thing in the Fifth 
Amendment and another in the Fourteenth.”  Adamson v. California, 
supra.

Secondly, the plaintiff claims protection under the equal protection 
clause of the Fourteenth Amendment and, as indicated above, the intention 
o f 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



27

the standards of the equal protection clause of the Four­
teenth Amendment. An examination of the relevant data, 
including the legislative history, supports plaintiffs’ con­
tention 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 other 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 
granted to Negro citizens on the same basis. See Fairman 
& Morrison, Does The Fourteenth Amendment Incorporate

upon race or ancestry is fundamental to a free society, must be discounted 
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 practice and conduct 
thereunder is not valid evidence as to the meaning or scope o f the Amend­
ment which they have consistently opposed. See Fairman & Morrison, 
Does The Fourteenth Amendment Incorporate The Bill o f Bights? 
2 Stanford L. Rev. 5, 90-95 (1949) South Carolina has had a long 
history, culminating in the events which led to the decision 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 
o f the argument that matters are within the legislative judgment and 
therefore if  a person wishes to change a particular legislation his argu­
ments embodying economic, psychological and social data should be 
addressed to the legislature rather than to the Court necessarily presup­
poses 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 there­
fore those processes that ordinarily might be relied upon to protect 
individuals against arbitrary and unreasonable governmental action are 
absent. See United States v. Carolene Produets, 304 U.S. 144.



28

The Bill of Plights? 2 Stanford L. Rev. 5, 138-139 (1949) 
Tims, even if there is a rational basis for the racial classifi­
cation 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.

The Supreme Court has invalidated racial segregation 
in several areas although the individual could effectively 
escape the impact of the segregation policy: residential 
segregation, whether by statute or ordinance. Buchcmcm 
v. Warley, 245 U. S. 60 ; City of Richmond v. Deans, 281 
U. S. 704; Harmon v. Tyler, 273 IT. S. 668; cf. Oyama v. 
California, 332 U. S. 633; see also: City of Birmingham v. 
Monk, 185 F. (2d) 859 (C. A. 5th), certiorari denied, 341 
U. S. 940; or by court-enforced covenants, Shelley v. 
Kraemer, 334 U. S. 1, Hurcl v. Hodge, 334 IT. S. 24; segrega­
tion of interstate passengers, whether by statute, Morgan 
v. Virginia, 328 IT. S. 373, or by carrier regulation, Hender­
son v. United States, 339 IT. S. 816; Railroad Co. v. Brown, 
17 Wall. 445, see also: Atlantic Coast Line Railroad Co. v. 
Chance, 186 F. (2d) 879 (C. A. 4th) certiorari denied, 341 
IT. S. 941. It has shown no greater tolerance for distinc­
tions, based on race or color, affecting the right to vote, 
whether imposed by lawr. Lane v. Wilson, 307 IT. S. 268, 
Nixon v. Condon, 286 IT. S. 73, Nixonv. Herndon, 273 IT. S. 
536, Guinn v. United States, 238 IT. S. 347, or by political 
party, Smith v. Alhvright, 321 U. S. 649; the right to fair 
representation by a labor organization, operating under 
authority of law, Graham v. Brotherhood of Locomotive 
Firemen & Enginemen, 338 IT. S. 232, Steele v. Louisville & 
N. R. Co., 323 U. S. 192, Ttmstall v. Brotherhood of Loco­
motive Firemen <& Enginemen, 323 IT. S. 210; or the right to 
engage in a'gainful occupation, Yick Wo v. Hopkins, 118 
IT. S. 356, cf. Yu Cong Eng. v. Trinidad, 271 IT. S. 500, see 
also : Takahashi v. Fish & Game Commission, 334 U. S. 410.



29

Similarly, it has consistently reversed convictions in 
criminal cases where there was racial discrimination in the 
selection of juries, Cassell v. Texas, 339 U. S. 282, Patton 
v. Mississippi, 332 U. S. 463; Pierre v. Louisiana, 306 U. S. 
354, Hale v. Kentucky, 303 U. S. 613, or where the right to 
a trial by racially unbiased jurors was not assured, Al­
dridge v. United States, 283 U. S. 308.

The District Court was unable to distinguish between 
permissible personal mores and customs from proscribed 
governmental action. In doing so the District Court re­
jected the applicable decisions of the Supreme Court. 
“ There is a vast difference—a Constitutional difference— 
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.”

It is, therefore, clear that the Fourteenth Amendment 
has stripped the state of power to make race and color the 
basis for governmental action.

B. RACE IS UNRELATED TO ANY LAW FUL OBJECTIVE OF 
PUBLIC EDUCATION

A classification conformable to the requirement of equal 
protection must be based upon some real difference having 
a fair and substantial relation to a valid legislative objec­
tive. Where alleged differences upon which classification 
is sought to be rested do not in fact exist, or are not rea­
sonably and rationally related to the legislative end, the 
classification violates the constitutional mandate of equal 
protection of the laws.7 This requirement, while obtain- * &

1 Skinner v. Oklahoma, 316 U.S. 535; Hartford Steam Boiler Inspection
& Insurance Co. v. Harrison, 301 U.S. 459; Mayflower Farms v. Ten Eyck, 
297 U.S. 266; Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535; 
Air-way Electric Appliance Corp. v. Day, 266 U.S. 71; Southern Railway 
Co. V. Greene, 216 U.S. 400.



3 0

ing as to all legislation, applies to statutory regulation of 
personal rights with unmistakable emphasis.

In Skinner v. Oklahoma, 316 U.S. 535, the Court declared 
unconstitutional an Oklahoma Statute providing for the 
sterilization of persons convicted two or more time of crimes 
amounting to felonies involving moral turpitude but ex­
pressly exempting from its operation persons convicted of 
embezzlement. It said (316 U.S. at 541):

“ But the instant legislation runs afoul of the equal 
protection clause, though we. give Oklahoma that large 
deference which the rule of the foregoing cases re­
quires. We are dealing here with legislation which 
involves one of the basic civil rights of man. Marriage 
and procreation are fundamental to the very existence 
and survival of the race. The power to sterilize, if 
exercised, may have subtle, far-reaching and devastat­
ing effects. In evil or reckless hands it can cause races 
or types which are inimical to the dominant group to 
wither and disappear. There is no redemption for the 
individual whom the law touches. Any experiment 
which the State conducts is to his irreparable injury. 
He is forever deprived of a basic liberty. We mention 
these matters not to reexamine the scope of the police 
power of the States. We advert to them merely in em­
phasis of our view that strict scrutiny of the classifi­
cation which a State makes in a sterilization law is 
essential, lest unwittingly or otherwise, invidious 
discriminations are made against groups or types of in­
dividuals in violation of the constitutional guaranty 
of just and equal laws. The guaranty of ‘ equal pro­
tection of the laws is a pledge of the protection of equal 
laws.’ Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. 
ed. 220, 226, 6 S. Ct. 1064. When the law lays an un­
equal hand on those who have committed intrinsically 
the same quality of offense and sterilizes one and not 
the other, it has made as invidious a discrimination as 
if it had selected a particular race or nationality for 
oppressive treatment. Yick Wo v. Hopkins, supra;



31

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 83 
L. ed. 208, 59 S. Ct. 232.”

South Carolina lias made no showing of any educational 
objective that racial segregation subserves. Nor could it. 
Efforts to conjure up as theories of intellectual differences 
between races are futile. As one authority has put it :8

u * * * there is not one shred of scientific evidence 
for the belief that some races are biologically superior 
to others, even though large numbers of efforts have 
been made to find such evidence.”

The record in this case contains the conclusion of an ex­
pert, based on exhaustive investigation, that:

“ Differences in intellectual capacity or inability to 
learn have not been shown to exist 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 edu­
cational policy or practice.”  (Tr. p. 202)

This conclusion accords with all the scientific investigations 
on the subject. Klineberg, Race Differences 343 (1935); 
Montague, Man’s Most Dangerous Myth— The Fallacy of 
Race 188 (1945); American Teachers Association, The 
Black and White of Rejections for Military Service 29 
(1944); Klineberg, Negro Intelligence and Selective Migra­
tion (1935); Peterson and Lanier, Studies in the Compara­
tive Abilities of Whites and Negroes, Mental Measure­
ment Monograph (1929); Clark, Negro Children, Educa­
tional Research Bulletin (1923).

C. STATE-IMPOSED SEGREGATION IN PUBLIC EDUCATION
IS INVALID

In many situations, the citizen usually has a choice as 
to whether he will encounter or avoid the situation of which

8 Rose, America Divided: Minority Group Relations in the United 
States, (1948).



32

segregation is a part. But in the area of segregated pub­
lic secondary and high school education, however, he has 
little freedom of choice. Private education as a legal al­
ternative to a public school education is economically un­
available save to a few. All others are forced by com­
pulsory school attendance laws to attend segregated schools 
and by segregation laws to be subjected to the indignities 
and harms invariably produced.

The Supreme Court has invalidated segregation in pub­
lic education even where the individual was not required to 
attend the institution where segregation was practiced. In 
McLaurin v. Board of Regents, 339 U.S. 637, a Ne gro vol­
untarily sought admission to the Graduate School of the 
University of Oklahoma. At the time of the hearing of the 
case on appeal, he was assigned to a seat in the class­
room in a row set apart for Negro students, and was as­
signed to a special table in the library on the main floor 
and, although permitted to eat at the same time in the 
cafeteria as other students, he was assigned to a special 
table there. This was segregation, pure and simple, was 
recognized as such and was struck down as a denial of 
equal protection of the laws.

D. STATE IMPOSED RACIAL SEGREGATION IS INCONSISTENT 
W ITH  THE EQUAL PROTECTION OF THE LAW S BECAUSE 
IT IMPORTS, AND IS DESIGNED TO IMPORT THE 
IN FERIORITY OF THE NEGRO

Segregation of Negroes, as practiced in this country, is 
universally understood as imposing on them a badge of 
inferiority.9

9 Myrdal, I An American Dilemma, 615, 640 (1944); Johnson, Patterns 
of Negro Segregation, 3 (1943) ; Fraenkel, Our Civil Liberties, 201 
(1944); Dollard, Caste and Class in a Southern Town, 349-351 (1937); 
Note, 56 Yale L. J. 1059, 1060 (1947); Note, 49 Columbia L. Rev. 629, 
634 (1949); Note, 39 Columbia L. Rev. 986, 1003 (1939).



33

It “ brands the Negro with the mark of inferiority and 
asserts that he is not fit to associate with white people.” 10 
It is of a piece with the established rule of the law of South 
Carolina that it is libelous per se to call a white person a 
Negro. Flood v. News and Courier Co., 71 S. C. 112, 50 
S. E. 637 (1905); Flood v. Evening Post Publishing Co., 
71 S. C. 122, 50 S. E. 641 (1905); See also: Stokes v. Gt. A. 
and P. Tea Co., 202 S. C. 24, 23 S. E. 2d 823 (1943). For­
bidding this group of American citizens ‘ ‘ to associate with 
other citizens in the ordinary course of daily living creates 
inequality by imposing a caste status on the minority 
group. ’ ’ 11 This imposition of a segregation status upon 
the Negro is unconstitutional in that it is an unreasonable, 
arbitrary, unscientific classification.12 13

This classification is particularly pernicious because of 
the harmful effect it has upon the minority group. The 
Negro is plagued by the concept—evidence of which he con­
stantly sees around him in his daily life—that he and his 
people are regarded as inferior.18

10 To Secure These Rights, Report of the President’s Committee on. 
Civil Rights, 79 (1947).

11 Id., 82.
12 “ Without any doubt there is also in the white man’s concept o f the 

Negro ‘race’ an irrational element which cannot be grasped in terms of 
either biological or cultural differences. It is like the concept ‘unclean’ 
in primitive religion. It is invoked by the metaphor ‘blood’ when describ­
ing ancestry. * * * The one who has got the smallest drop of ‘Negro 
blood’ is as one who is smitten by a hideous disease. It does not help if 
he is good and honest, educated and intelligent, a good worker, an excel­
lent citizen and an agreeable fellow. Inside him are hidden some unknown 
and dangerous potentialities, something which will sooner or later crop up. 
This totally irrational, actually magical, belief is implied in the system of 
specific taboos * * Myrdal, I An American Dilemma, 100.

13 “ The word ‘segregation’ itself has come to represent to Negroes a 
crucial symbol of white attitudes of superiority.”  Stouffer, et al., Studies 
in Social Psychology in World War II, I The American Soldier, 566 
(1949).



34

It remains one of the most devastating frustrations of his 
life. Under its impact, he does not dare to he a person of 
his own distinct uniqueness and individuality.14

It is bad enough for the Negro to have to endure the 
insults of individuals who look upon him as inferior. It is 
far worse to have to submit to a formalized or institutional­
ized enforcement of this concept, particularly when, as in 
this case, it carries the sanction of an agency of government 
and thus appears to have the seal of approval of the com­
munity at large. Thus such enforced racial segregation in 
and of itself constitutes unconstitutional inequality.16

In this situation the phrase “ separate but equal”  is a 
plain contradiction in terms.18 Despite the dictum in 
Plessy v. Ferguson that the minority race is not stigmatized 
as inferior by segregation, it is clear today that this Court’s 
a priori conclusion cannot stand in the face of a wealth of 
evidence flatly contradicting it.17 Furthermore, the con- 14 15 16 17

14 Cooper, The Frustrations of Being a Member of A Minority Group: 
What Does It Do To The Individual And To His Relationships With Other 
People?, 29 Mental Hygiene 189, 190-191 (1945).

15 “No argument or rationalization can alter this basic fact: a lav 
which forbids a group of American citizens to associate with other citizens 
in the ordinary course o f daily living creates inequality by imposing caste 
status on the minority group.”  (Italics supplied.) To Secure These 
Rights, Report of the President’s Committee on Civil Rights, 82.

“ The Court, has never faced the reality that segregation necessarily 
implies inequality, for equals do not hesitate to mingle with each other in 
public places. Any traveler in lands where segregation is practiced, be 
it the South where the victim is the Negro, or Nazi Germany where it is 
the Jew, knows that segregation is a badge of one race’s claim to 
superiority over the other.”  Fraenkel, Our Civil Liberties, 201.

16 “ The fact that accommodations are identical in physical comfort 
does not make them really equal, since there is a social stigma, attached 
to the position of the minority. To say that, since neither group can use 
the facilities reserved for the other, they are in an equal position is 
unrealistic; members o f the minority know only too well the reasons for 
the segregation and are humiliated by it.”  Note, 39 Col. L. Rev. 986, 
1003 (1939).

17 In addition to the materials and authorities cited elsewhere in this 
brief, see Myrdal, An American Dilemma, 100, 628 (1939); Dollard, 
Caste and Class in a Southern Town, 62-63, 266; Heinrich, The Psychology



tinuation of segregation not only indoctrinates both white 
and colored races with the caste conception but solidifies 
segregation existing outside the law and gives it per­
manence, respectability and institutional fixity.18 As the 
Supreme Court of California has pointedly said, the way 
to eradicate racial tension is not “ through the perpetuation 
by law of the prejudices that give rise to the tension. ’ ’ 19 
In fields which “ Jim Crow”  laws do not cover there has 
been “ a slow trend toward a breakdown of segregation” ; 
within the fields of their operation the laws “ keep the pat­
tern rigid. ’ ’ 20 18 * 20

of a Suppressed People, 57-61 (1937); Sutherland, Color, Class, and 
Personality, 42-59 (1942); Johnson, Patterns of Negro Segregation, 270 
(1943) ; Bond, Education o f the Negro and the American Social Order, 
384 (1934); Moton, What the Negro Thinks, 12-13, 99 (1929); Bunche, 
Education in Black and White, 5 Journal of Negro Education 351 (1936); 
To Secure These Rights, supra, 79, 82; Fraenkel, Our Civil Liberties, 201.

See also McGovney, Racial Residential Segregation by State Court 
Enforcement of Restrictive Agreements, Covenants or Conditions in Deeds 
is Unconstitutional, 33 Calif. L. Rev. 5, 27, note 94 (1945); Note, 39 
Columbia L. Rev. 986, 1003 (1939); Note, 56 Yale L. J. 1059, 1060 
(1947); Note, 49 Columbia L. Rev. 629, 634 (1949).

In Collins v. Oklahoma State Hospital, 76 Okla. 229, 231 (1919), the 
Court said: “ In this state, where a reasonable regulation of the conduct 
of the races has led to the establishment of separate schools and separate 
coaches, and where conditions properly have erected insurmountable bar­
riers between the races when viewed from a social and a personal stand­
point, and where the habits, the disposition, and characteristics of the 
race denominate the colored race as inferior to the Caucasian, i t . is 
libelous per se to write of or concerning a white person that he is colored.” 
(Italics supplied.)

18 Myrdal, I An American Dilemma, 579-580. See also Berger, The 
Supreme Court and Group Discrimination Since 1937, 49 Col. L. 201, 
204-205 (1949).

In W olfe v. Georgia Railway & Electric Co., 2 Ga. App. 499, 505 
(1907), the court said: “ It is a matter of common knowledge, that, 
viewed from a social standpoint, the negro race is in mind and morals 
inferior to the Caucasian. The record of each from the dawm of historic 
time denies equality.”

Perez v. Sharp, 32 Calif. 2d 711, 725 (1939).
20 Myrdal, I An American Dilemma, 635.
In the South, segregation in privately operated public services “ is often 

less rigid than in those operated by government” (id., p. 634).



36

SEGREGATED EDUCATION RESULTS IN HARM TO THE
APPELLANTS, MEMBERS OF TH EIR CLASS AND TO THE
COMMUNITY AS A WHOLE

The Negro who is subjected to segregated education is 
segregated against his will and is forced into ostracism 
symbolizing inferiority which colors his thoughts and ac­
tion at almost every moment.21

Professional opinion is almost unanimous that segregation 
has detrimental psychological effects on those segregated. 
A questionnaire addressed to 849 representative social 
scientists was answered by 61% of those to whom it was 
sent. Of those replying 90.4% believed that enforced segre­
gation has “ detrimental psychological effects”  on those 
segregated if “ equal facilities”  are provided, 2.3% ex­
pressed the opposite opinion, and 7.4% did not answer the 
question or expressed no opinion. Those who elaborated 
their position with comments (55% of those replying) 
stressed that segregation induced feelings of inferiority, 
insecurity, frustration, and persecution, and that it de­
veloped, on the one hand, submissiveness, martyrdom, with­
drawal tendencies, and fantasy, and on the other hand, ag­
gression.22

The resentment and hostility provoked by segregation 
find various means of psychological “ accommodation,”  
various forms of release.23 Mediocrity is accepted as a 
standard because of the absence of adequate social rewards

21 Cooper: The Frustrations of Being a Member of a Minority Group: 
What Does It Do to the Individual and to His Relationships with Other 
Peoplef, 29 Mental Hygiene 189, 193.

22 Deutseher & Chein, The Psychological Effect of Enforced Segrega­
tion: A  Survey of Social Science Opinion, 26 Journal o f Psychology 259, 
261, 262 (1948).

23 Prudhomme, The Problem of Suicide in the American Negro, 25 
Psychoanalytic Review 187, 200 (1938) Dollard, Caste and Class in a 
Southern Town, 252 ft.



37

or acceptance.24 Energy and emotion which might he con­
structively used are lost in the process of adjustment in the 
“ Jim Crow”  concept of the Negro’s characteristics and his 
inferior status in society.25

The extensive studies made of Negro troops during the 
recent war furnished striking example of how racism, of 
which segregation is the sharpest manifestation, handicaps 
the soldier. The most important single factor affecting 
integration of the Negro into Army life was that he had 
to carry the burden of race prejudice in addition to all of 
the other problems faced by the white soldier.26

For a general discussion of the effects of the caste sys­
tem, which segregation supports and exemplifies, on Negro 
personality and behavior, see Myrdal, An American Di­
lemma, vol. 2, pp. 757-767.

On occasion courts have denied that enforced segrega­
tion of Negroes in American life is a badge of inferiority, 
thus closing their eyes as judges to what they must know

24 Dollard, supra, 424.
“ In order for any individual to mature, that is, to be willing to assume 

responsibility in work and in personal relations, lie must feel that there 
is some hope o f attaining some of the satisfactions o f maturity. * * * 
White society gives him (the Negro) little share in any of the mature 
gratifications of creative work, education, and citizenship. It would not 
be remarkable if, deprived of all mature gratifications, he lost zest for 
responsible action.” McLean, Group Tension, 2 Journal of American 
Medical Women’s Association 479, 482 (1937).

25 Cooper, The Frustrations of Being a Member of a Minority Group: 
What Does It Bo to the Individual and to His Relationships ivith Other 
Peoplef, 29 Mental. Hygiene 189, 190-191. See also: McLean, Psycho­
dynamic Factors in Racial Relations, The Annals of the American 
Academy , o f Political and Social Science 159, 161 (1946).

“ The psychology of the Negro developed in the repressive environment 
in which he lives might be described as the psychology of the sick * * * 
It is impossible to estimate what are the pathological results of the above 
outlook on life. It must certainly mean a reduction in that energy that 
characterizes healthy organisms. “ Frazier, Psychological Factors in 
Negro Health, 3 Journal o f Social Forces 488 (1925).

26 Studies in Social Psychology in World War II, vol. I, chap. 10. See 
particularly pp. 502, 504, 507.



38

as men. But, beyond the teaching of common experience, 
the data of social science and history herein cited and sum­
marized make unmistakably clear the invidious purpose and 
signification of segregation. We believe that a recognition 
of this underlies the decision of the Supreme Court in the 
McLaurin case. Similar recognition of segregation for 
what it is in this case must expose fundamental error in 
the reasoning and conclusion of the district court.

I l l

Applicable Decisions of the Supreme Court Required an 
Order Enjoining [Policy of] Appellees from Excluding 
Appellants from an Opportunity to Share the Public 
School Facilities of Clarendon County on an Equal Basis 
Without Regard to Race or Color.

At the beginning of the first hearing, at the time of the 
first judgment and at the time of the judgment here ap­
pealed from, the appellants and appellees were in agree­
ment that the equal protection of the laws of South Caro­
lina was being denied to the appellants herein—-and the 
District Court made this finding.

The appellants were entitled to effective and immediate 
relief as of the time of the first judgment on June 23, 1951. 
Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. Painter, 
339 U. S. 629; McLaurin v. Board of Regents, 339 U. S. 
637.27 At the second hearing on March 3, 1952, appellees 
admitted that, although progress was being made, the phys­
ical facilities were still unequal. The District Court ruled 
that the question of the validity of the segregation laws was 
foreclosed by their prior decision. Appellants then urged

27 See also: Missouri ex rel Gaines v. Canada, 305 U.S. .337; Belton, 
et al. v. Gebhart, et at., —  Del. Ch. — , —  A. 2d —  decided April 1, 1952.



39

that even under this ruling, they were entitled to imme­
diate relief by an injunction against the continuation of the 
policy of excluding them from an opportunity to share all 
of the public school facilities—good and bad—on an equal 
basis without regard to race and color. This the District 
Court refused to do even after a showing that the June, 
1952, decree had failed to produce even physical equality 
after eight months.

We are not here dealing with private rights. We are 
dealing with rights guaranteed and protected by the Con­
stitution and laws of the United States. These rights are 
personal and present. Appellants are entitled to imme­
diate and affirmative relief. Board of Supervisors v. Wil­
son, 340 U. S. 909.

Appellees’ sole defense is complete reliance on the segre­
gation laws of South Carolina. As long as the District 
Court insists on declaring these laws valid and constitu­
tional, appellees will continue to enforce them. The rec­
ord in this case shows that in the past their action has 
discriminated against, appellants and all other Negroes. 
Whatever they do in the future will be under the continua­
tion of the policy of rigid racial segregation.

Under the present decree physical facilities may be 
equalized by September. If so, the question of whether 
or not the educational opportunities of the two schools are 
equal will remain unsettled. If the physical facilities are 
unequal, appellants’ sole recourse will be contempt pro­
ceedings. It is, therefore, obvious that the District Court 
has not only refused to grant effective permanent relief, 
but has also denied effective immediate relief, even apart 
from the question of the invalidity of the statutes.



40

Conclusion

Following the rationale of the decision of this Court in 
McLaurin v. Oklahoma State Regents appellants produced 
testimony of expert witnesses to show that racial restric­
tions in public school education in Clarendon County im­
paired and inhibited infant appellants’ ability to study 
and in general to obtain an equal education. However, 
the majority of the District Court in the first hearing after 
first upholding the doctrine of Plessy v. Ferguson, decided 
that the McLaurin decision was inapplicable because there 
were differences between graduate education and elemen­
tary and high school education. The judgment after the 
second hearing reaffirmed this decision even in the face of 
the continuing inequalities.

The Supreme Court has always recognized the impor­
tance 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 op­
portunity 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 
testimony as appears in the record in this case.

Without a review of this decision there will be consider­
able doubt in the minds of judges, school officials, taxpayers 
and pupils of the extent of the principles set forth in those 
decisions. A clear-cut decision on this issue will remove 
all doubts in the field of public education.



41

W h e r e f o r e , it is respectfully submitted the judgment of 
the court below should be reviewed by the United States 
Supreme Court and reversed.

(S .) H arold E. B oulware,
1109^2 Washington Street, 
Columbia 20, South Carolina;

(S .) Spottswood W . B obinson, III,
623 North Third Street, 

Richmond, Virginia;
(S .) E obert L. Carter,

T hurgood Marshall,
20  West 40 Street,

New York 18, New York, 
Counsel for Plaintiffs-Appellants.

George E. C. H ayes,
A rthur D. Shores,
J ames M. Nabrit,
A. T. W alden,

Of Counsel.

May 10, 1952.



42

APPENDIX

I concur: A. M. Dobie,
U. S. Circuit Judge.

I concure: George Bell Timmerman,
U. S. District Judge.

DISTRICT COURT OF THE UNITED STATES FOR 
THE EASTERN DISTRICT OF SOUTH CAROLINA, 
CHARLESTON DIVISION

Civil Action No. 2657

H arry B riggs, J r., et al,, Plaintiffs, 
versus

R. W. E lliot, Chairman, J. D. Carson and George K ennedy, 
Members of the Board of Trustees of School District No. 
22, Clarendon County, S. C .; Summerton H igh School 
D istrict, a body corporate; L. B.I M cCord, Superintend­
ent of Education for Clarendon County, and Chairman 
A. J. P lowden, W. E. B aker, Members of the County 
Board of Education for Clarendon County; and H. B. 
B etchman, Superintendent of School District No. 22, 
Defendants.

Heard March 3, 1952. Decided--------- .

Before P arker and D obie, Circuit Judges, and T immerman,
District Judge

Harold R. Boulware, Spottswood Robinson, III, and Rob­
ert L. Carter, Thurgood Marshall, Arthur Shores and A. T. 
Walden, for Plaintiffs; T. C. Callison, Attorney General of 
South Carolina, S. E. Rogers and Robert McC. Figgs, Jr., 
for Defendants.

P arker, Circuit Judge:
On June 23, 1951, this court entered its decree in this 

cause finding that the provisions of the Constitution and



43

statutes of South Carolina requiring segregation of the 
races in the public schools are not of themselves violative of 
the Fourteenth Amendment of the federal Constitution, but 
that defendants had 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. That decree denied 
the application for an injunction abolishing segregation in 
the schools but directed defendants promptly to furnish 
Negroes within the district educational facilities and op­
portunities equal to those furnished white persons and to 
report to the court within six months as to the action that 
had been taken to effectuate the court’s decree. See Briggs 
v. Elliott, 98 F. Supp. 529. Plaintiffs appealed from so 
much of the decree as denied an injunction that would 
abolish segregation and this appeal was pending in the 
Supreme Court of the United States when the defendants, 
on December 21, 1951, filed with this court the. report re­
quired by its decree, which report was forwarded to the 
Supreme Court. The Supreme Court thereupon remanded 
the case that we might give consideration to the report and 
vacated our decree in order that we might take whatever 
action we might deem appropriate in the light of the facts 
brought to our attention upon its consideration. Briggs v. 
Elliott, 342 U. S. 350. When the case was called for hearing- 
on March 3, 1952, defendants filed a supplementary report 
showing what additional steps had been taken since the 
report of December 21, 1951, to comply with the require­
ments of the court’s decree and equalize the educational fa­
cilities and opportunities of Negroes with those of white per­
sons within the district.

The reports of December 21 and March 3 filed by defend­
ants, which are admitted by plaintiffs to be true and correct 
and which are so found by the court, show beyond question 
that defendants have proceeded promptly and in good faith 
to comply with the court’s decree.* As a part of a state­

* The facts disclosed by the ordered and Supplemental report are these: 
In order to qualify for state aid the old school district 22 has been 
combined with six other districts to become district 1, whose officials 
have requested and have by order been admitted as parties to this action.



44

wide educational program to equalize and improve educa­
tional facilities and opportunities throughout the State of 
South Carolina, a program of school consolidation has been 
carried through for Clarendon County, District No. 22 has 
been consolidated with other districts so as to abolish in­
ferior schools, public moneys have been appropriated to 
build modern school buildings, within the consolidated dis­
trict, and contracts have been let which will insure the com­
pletion of the buildings before the, next school year. The 
curricula of the Negro schools within the district has al­
ready been made equal to the curricula of the white schools 
and buildings projects for Negro schools within the con­
solidated district have been approved which will involve 
the expenditure of $516,960 and will unquestionably make 
the school facilities afforded Negroes within the district 
equal to those afforded to white persons. The new district 
high school for Negroes is already 40% completed, and 
under the provisions of the construction contract will be 
ready for occupancy sometime in August of this year. That 
the State of South Carolina is earnestly and in good faith 
endeavoring to equalize educational opportunities for 
Negroes with those afforded white persons appears from 
the fact that, since the inauguration of the state-wide educa­
tional program, the projects approved and under way to

Teachers' salaries in the district have been equalized by local supplement, 
bus transportation has been instituted (none was furnished previously 
for either race), and $21,522.81 has been spent for furniture and equip­
ment in Negro schools. Enabling legislation has been secured in the state 
legislature which permits the issuance of bonds of the school district up 
to 30% of the assessed valuation (The enabling legislation was made 
possible by an Amendment to the Constitution o f South Carolina passed 
in 1951. The maximum had therefore been 8%) .  Compliance with the 
requirements o f the newly formed State Education Finance Commission 
has resulted in funds being made available to District 1 and a plan of 
school house construction based on a survey of education needs has been 
prepared, approved and adopted. Plans have been approved for the 
building of two Negro elementary schools at St. Paul and Spring Hill 
and advertisements for bids have been circulated in the press. The con­
tract for remodeling the Scotts Branch Elementary School and for 
construction of the new Scotts Branch High School has already been 
let, construction has been commenced, and will, according to the record, 
be completed in time for the next school year.



45

date involve $5,515,619.15 for Negro school construction as 
against $1,992,018.00 for white school construction.. The 
good faith of defendants in carrying out the decree of this 
court is attested by the fact that, when in October delay of 
construction of the Negro high school within the consoli­
dated district was threatened on account of inability to ob­
tain release of necessary materials, defendants made appli­
cation to the Governor of the State and with his aid secured 
release of the materials so that construction could go 
forward.

There can be no doubt that as a result of the program in 
which defendants are engaged the educational facilities and 
opportunities afforded Negroes within the district will, by 
the beginning of the next school year beginning in Septem­
ber 1952, be made equal to those afforded white persons. 
Plaintiffs contend that because they are not now equal we 
should enter a decree abolishing segregation and opening 
all the schools of the district at once to white persons and 
Negroes. A sufficient answer is that the defendants have 
complied with the decree of this court to equalize conditions 
as rapidly as was humanly possible, that conditions will be 
equalized by the beginning of the next school year and that 
no good would be accomplished for anyone by an order dis­
rupting the organization of the schools so near the end of 
the scholastic year. As heretofore stated, the curricula of 
the white and Negro schools have already been equalized. 
By the beginning of the next scholastic year, physical condi­
tions will be equalized also. This is accomplishing? equali­
zation as rapidly as any reasonable person could ask. We 
dealt with the question in our former opinion where we 
said (98 P. Supp. at 537) :

“ It is argued that, because the school facilitiesi fur­
nished 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



46

should be directed to removing* the inequalities result­
ing 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 
Carter v. County School Board of Arlington County, 
Virginia, 4 Cir., 182 F.', 2d 531. The court should not 
use its powrnr to abolish segregation in a state where it 
is required by law if the equality demanded by the Con­
stitution can be attained otherwise. This much is de­
manded by the spirit of comity which must prevail in 
the relationship between the agencies of the federal 
government and the states if our constitutional system 
is to endure.”

For the reasons set forth in our former opinion, we think 
that plaintiffs are not entitled to a decree enjoining segre­
gation in the schools but that they are entitled to a decree 
directing defendants promptly to furnish to Negroes within 
the consolidated district educational facilities and oppor­
tunities equal to those furnished white persons. The offi­
cers and trustees of the consolidated district will be made 
parties to this suit and will be bound by the decree entered 
herein.

Injunction abolishing segregation denied.
Injunction directing the equalization of educational facili­

ties and opportunities granted.

A True Copy, Attest
(8 .) E rnest L. A llen,

Clerk of U. 8. District Court,
East. Dist. So. Carolina.

(2178)