Briggs v. Elliot Statement as to Jurisdiction No. 816
Public Court Documents
May 10, 1952

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Brief Collection, LDF Court Filings. Briggs v. Elliot Statement as to Jurisdiction No. 816, 1952. 63a05975-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/811e89b6-9890-44a4-afb3-c8c92a37e5f3/briggs-v-elliot-statement-as-to-jurisdiction-no-816. Accessed July 30, 2025.
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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)