Sweatt v. Painter Brief Amici Curiae in Support of Petitioner

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O ctober T erm., 1949.

No. 44.
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» 'T
em an  M ario# Svveatt, Petitioner,

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fiOPHILUS SHfCKEL F a INTKR ET'AL.
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§: On a jpiTrit of Certiorari to the Supreme Court

\ V* of the Slate of -Texas./

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I I A R.O I I» II AVIC. H UR ST
E dward L evi ...•

FoRjprriE Co m m it t e e .of L a w '.* 
T eaI h icrs A <;a i nSt Segregation 
in IjEGAi. Education  •' ‘ !

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Statement
Summary of 'Argument......... 5..

Page
1
2

4.

i

"• v*i

Argument ' "• {
J. The Equal Protection -^Clause Was Intended to Outlaw

Segregation ..............i ........... .............................. ................:..........  4
\ 1. The original meaning of equal protection is incom-
V patible with segregated education........ ......................  5

2. Contemporary rejection of “ separate but equal” in
V Congress, immediately before and after the Four- 

teenth Amendment, represents a judgment incom-
> patible with segregated education.............................;......  11
.*• 3. In . Railroad Co. V; Brown, this Court early decided
• th&t “ separate” could not be “equal”.......................    18

Plessy v. Ferguson, which undid the Brown case and 
the legislative history of equal protection, should be 
overruled  ........... r................................................................... 20

II. The Basic Policies Underlying the Court’s Approval of 
Segregation in Plessy v. Ferguson Have, in the Years 
Intervening Since That Decision, Proved to Be Not 

] Only -Wholly Erroneous But Seriously Destructive of
•' the Democratic Process in the United States..............:..... 22'A ' •; 1. The judgment of ;ilie Court in Plessy v. Ferguson
:? that direct governfnental action to eliminate segre-
f gjation is ineffective to overcome the prevailing cus-
? tonis of the community has proved to be without

foundation ...........IL......................................................... ........  23
2. Patterns of segregation have not tended to produce 

b harmonious relations between races, as the Court
assumed in Plessy sv. Ferguson, but have increased 

■f tensions and become progressively destructive of the
democratic processan the United States................ ........  29

> 3. This Court has ultimate responsibility, under the
•' Constitution, to review the factual and policy judg­

ment of the Texasjlegislature in this situation  ......  32
III. ;-Segregation Should Not’;Be Extended to Education.....:  34

1. 4 he. precedents do jnot uphold segregated education 34 
y. 2. Under the rule of Reason created by the precedents,
V segregation is unreasonable........................................ .......  35

IV. . Equal Facilities for Legal Education Flave Not in Fact
Been. Offered to Sweajft and. Indeed, Segregated Legal 
Education Cannot Under Any Circumstances Afford 
Equal .Facilities. Heqce Petitioner Has Been Denied 

v Equal Protection EverfWithin the Broadest Application
) of Plessy v. Fergusori..............-........................................ . 38

.Concjlrjsion ............................ .*................................. ............................ . 47
'•Appendix A„4„L........................... *........................................................... . 49



11
Index Continued

C IT A T IO N S
Page

C ases *
Baylles v. Curry, 128 111. 287, 21^.^1.^595^(1889) 19
Berea College v. K entucky, 211 U- S ; 45^ (1908).......................  ;U
Buchanan v. W orley , 245 U S- 6° (1917)...........•;...................... . 4
Cm*/ Cases, 109 U. S. 542^ (1883) _
Camming v. Richmond County Bd., 1Jo  U.
E x  parte Garland, 4 Wall. 333 ( 1867)

528 (1899)....34, 35
...... 14

Liv parte Lranana, ** vvau. \ * ~ 14

£ * * • * *  WcC^ * i ritA alC 6f M (.U86P ................ ... ...................35. 59v. H k m /, 333 U. S. 147 (1948)

ffZPZf.UufdftaYesnnl 2(efoct. Term, United States
Supreme Court) ............ .........."TV'To7p

Jones v. Kehrlein, 47 Cal. App. 646 194 R
M cCabe v. Atchison, Topeka & Santa F e ,2 ^ o  U . S. lo l ( LJI J

34, 35

55
..................... 31
(1920 ).............---------- 40

(1
M cP herson  v. fltarfeer, 146 U. S. 1 (189*'V "  o o f  7 ^ 8 ) 3 5 *  30, 40 
M issouri ex  rel. Games v. Canada, 305 U . S. 331 0 0 ,
M organ  v. Virginia, 328 U. S. 373 (1946 )
N ew  Y ork Trust Co. v. Eisner, 256 U. S. 34o (1321) 
P erez  v. Sharpe, 32 Cal ^11 P 2d 17 ^.948)
Plcssy  v. Ferguson,

2d 
163 U

711, 198 
S. 537

P. 2d 17 (1948). 
(1896)........i:.......3, 4, 14,

23 
.. 40
20- 1. 

39 
22 
15

25, 29-30, 32, 33, 34, 35, 36,*38
Railroad Co. v. Broum, 17 W all / 445 (1873 W  (1M 9 V - ^ 4  
Roberts v City o f  Boston, 5 Cush. (Mass.) * ( < . v
Sipnel v B d \ f  R egents, 332 U. S. 631, ,u5 tfom. 7o,/xer v
 ̂ H u rst, 333 U. S. 147 ( 1 9 4 8 V . - - ’....."........................
S laughtcr-H ouse Cases, 16 Wall. 36 (1873)...............
Smithv. Alhvright,321 U . S. 649 ( 1944) ........ -........ T"

State v. M cCann  21 U  s l 4 4  0  9 3 «  ... 39
United States v. t < * d e n e £ r o d u c t s ,S M a S .  ^
United States v. H a m s, 106 U. S. 62.) O 88® >

Virginia State Bd. v. Barnett, 319 U.b.

39
11
21
15

624 (1943)........  33

S t a t u t e s :

Civil Rights Act of 1866, 
Civil Rights Act of 1875,
12 St at. 805 (1863)..........

>37 (1 8 6 5 ).........

14 Stat. 27 (1866). 
8 Stat. 335 (1875).

Mass. 
Rule 1 
Rules

1 1

13 Stat.
16 Stat. 3 (1 8 6 9 )..............
Mass. Acts 1845. c. 2 1 4 -

Rules of Civil Procedure (Vernon l.)42) 
Bar of Texas, Art. 3, § 1, 1 d ex-

, Texas 
of State

Stat. 696

(Vernon 1947)....

8
11
18
11
13

46



IllIndex:; Continued

V .V v :?• Page
M iscellaneous ': \

% *
Kxec. Order 9981, Fed. Reg.}4313 (1948)....................................... 27
103 A. L. It  713.......................4..............    40
Arfierican Civil Liberties Union, 29th Annual Rep., In The

Shadow of; Fear (1949)....;:............................................................ ;.... 29
Anierican Freeman, The (1§66 )....................... .......................... ......  13
Association "o£ American Law Schools, Teachers’ Directory

($1949-50 % y ............................t .............................     41
Co fig. Globe, |38th Cong., IsCSess. (1804)..... ........................7, 11, 12
Coug. Globe”, -39th Cong., 1st; Sess. (1805-6).......... .-...7, 8, 9, 10, 11
Coflg. Globe, 40th Cong., 2d <5ess. (1867).............................................13
Cong. Globe, 4lst Cong., 2 d ‘Sess. (1.870).........'...........................   13
Cotig. Globe, 41st Cong., 3d Sess. (1871).................................... 14, 15
Coug. Globe, 42d Cong., 1st Sess. (1871)..... >... ...................... i—  15
Corig. Globe, 42d Cong., 2d Sess. (1871-2)  ...................14, 15, 17
2 dong. Rec., 43d Cong., 1st ;Sess. (1874).......................... 15, 16, 22
3 Cong. Rec., -143d Cong., 2d Sess. (1,875)............:....;...............   17
Garrison, Address, 8 Am. LaW School Rev. 592 (1936).......   45
Letter of Salihon Chase to Charles Sumner, dated Dec. 14,

1949 ........ .4 ................. .......... .1... ..... .....-.............. ............ ............. ...... 6
letter of Senator Morrill to Charles Sumner, undated (prob.

Oct. or Noy. 1865)............4-....................................... - .....- ...... —.... 8
Letter to Thaddeus Stevens, dated Nov. 1, 1865_................. ......  7
Massachusetts'Const. Art. Ill' (1780)...... ....................................,L. 9
Maine Const. Art. I, § 3 (1$19)_...._ ............ ................................. 9

: New Hampshire Const. Art. V I (1792)...... ............. ............... .....  9
NeW York State Comm’n Against Discrimination, 1948 Report

of Progre?s4-........- ............~..-4_.....- ....—....... .......— .......-............ -.....  28
President’s Cojnmission of Higher Education, Higher Educa­

tion for American Democracy (1947)...........!..._.................... ......  37
, Report of President’s Committee on Civil Rights, To Secure

These Rights (1947)...........i ..............t.............................25, 26, 27, 35
Resolution of Providence, R..T., Union League Club (1865) 7

. Seni Rep. No..131, 40th Cong., 2d Sess. (1868).......................... 19
Special Report, Commissioner1; of Education on Condition and 

Improvement of Public Schools, Dist. Col., H. R. Exec.
Doc. No. 3t5, 41st Cong., 2d Sess. (1870)................................ 12

United States/Fair Employment Practice Committee, Final
R/eport (1946)....................._..L..............- ..............................................  27

: University of :fTexas, Law School, Catalogue .( Aug. 1, 1948) 42
, University 6f Texas for Negroes, School of Law, Bulletin

(1949-50)- ...:.............................4.............  :...............2, 41, 42, 44
• > ;

T reatJses a n d  A r t i c l e s : V

Abrams, Race'-►Bias in Housing (1947)............. .......... ................26
Abrams, The Segregation Threat in Housing, 7 Commentary 

123 (1949)4................. -......- 4 - ........... ................ - ........................... . 26



4

American Council on Education, Thus Be Their Destiny

American Council on Education, Color, Class and Personality

American Management Association, The Negro Worker

Article,2 U T  Institutes Placement Service, 12 Texas Bar Jour­
nal 208 (1949)._

■;n

2H

V8

23

Bout well, Reminiscences of Sixty Years (1902)........................
Boyd Some Phases of Educational History in the South Since

Boyer, The Smaller Law Schools, 9 Am. Law School Rev.
1469 (1942)...................................... .................-....................................  '*m

Bowen, Divine White Right (1934) ..--............................................  \
Brubacher, Modern Philosophies of Education (193.3).............
Comment, 56 Yale L. J. 837 (1 9 4 7 )-..... •...................— —»•— —
Commission on Discrimination in Employment New York 

State War Council, Breaking Down the Color lane, 32 Man­

Curry, Brief Sketch of George Peabody (1898) _ ........-  . !
Curti, The Social Ideas of American Educators (193a)....... 36. . •
Dewey, Democracy and Education (1916) ....................................  . ' '
Flack, The Fourteenth Amendment (1908).............
Fleming, Documentary History of Reconstruction (1.306) U L  
Frasier and Armentrout, An Introduction to Education (3d

ccl 1033) .....................................................................  * * *
Gifford, The Placement of Law Students and Law Graduates,

9 Am. Law School Rev. 1063 (1941)........... -....... .............. :
Gillmor. Can the Negro Hold His Job?. National As^cmt.on ^

for Advancement of Colored People Bull. (Sept. 1.341)......v ;
Grosvenor, 24 New Englander 268 (1865)

Key, Southern Politics (1949)
Kilpatrick (E d .), The Educational Frontier 0 - 3 3 )  ...... -.... -
Knight, The Influence of Reconstruction on Education m the

South (1913)......................................;t ;v7o’n.......................................' o
Lew in, Resolving Social Conflicts ( 1948 ) .................................. -  *
Maclver, The More Perfect Union (1948)... ........ -..................'
McPherson, Handbook of Politics for 1868 (1868)

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i -age
Maprfing and Phillibs, Negroes as Neighbors, 13 Common

Sense 134 (1944)4.............../.................................................................  20
May6, Ih e  Human;. Problems of an Industrial Civilization

37
M err jam, The Making of Citizens (1931)....................................... 30
Mifier, Thaddeus Stevens (1939)........... ....................... .....................  10
Mojrjson and Comrriager, The Growth of the American Re­

public (1942)........ i ................................ ,....................... ;...;.........................K)
Moyljyn, Selected Li|t of Books for the . Small Paw School

library, 9 Am. Law School Rev. 4 09 (’1939)..........................  12
Murrhy (lid .), The Negro Handbook (1949)............-.................... 23
Myprs and Williams, Education in a Democracy (1942).............  30
Mytdal, An American Dilemma (1944)...........................................  31
Nason, Life of Henry Wilson (1870)................... ..........................  5
NewlOn, Education for Democracy in Our Time (1939)........... 38
Newman, An Experiment in Industrial Democracy, 22 Oppor­

tunity 52 (1944)....:;................................................................................ 28
Northfup, Proving Ground for Pair Employment, 4 Commen­

tary 552 (1947).. .1............................ .......................... .................. 28
Note, M9 Col. L. Rev*. 029 (1949)....................................................... 31
Note, -50 Yale L. J. 1059 (1947)................................. 30 31
Note, >8  Yale L. J. 472 (1949)........................................ ................... ’ 31
Ottleyj The Good-Neighbor Policy— At Home, 2 Common

Grohnd 51 (1942^...............................................................................  20
Paterson, The Legal j/Kid Clinic, 21 Tex. L. Rev. 423 (1943) 44
Poundf Social Control Through Law (1942)..................................  40
Rossi, They Did It in St. Louis, 4 Commentary 9 (1947)........  29
Rossi; Tolerance by L<*w, 195 Harper’s Mag. 458 (1947)........... 28
Rostow, Liberal Education and the Law: Preparing Lawyers 

fot* Their Work in Our Society, 35 A . B. A. lour. 020
(1949) ...................... :i ...............................................................1.............44-5

Simon)- Causes and Cure of Discrimination, N. Y . Times May
29, 1949, § 0, p. 1 0 ................................... ........................ ;.................  28

Sumner, Works (1874)........... ...............................................................  0, 8
Sweetland, The CIO apd Negro American, 20 Opportunity 292

O H O  .......................1..............„......................... ; ......................... ..........  29
Taylor, Negro Teachers in White Colleges, 05 Sch’l and Soci­

ety 369 (1947)........ .,............................... :.........................:.................... 20
Warrtep, The Supreme,;Court in U. S. History (1920)...............  21
Wester-maun, Bet ween- Slavery and Freedom, 50 Am. Hist

Rev. 4 213 (1945).....4........................................................... ................. 4
Williams, The Louisiana Unification Movement in 1873 2 J

So;.' Hist. 349 (19450............ ............................ ................................. 12
Wirth, .Segregation, 13 Encyc. Soc. Sci. 043 (1934).................. 31

“4



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■] • IN  T H E
4

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#«pr««tp (fuurtaif tlj? IUmtrii States

* ■*•'• • V-•• • „
v  v •? O c t o b e r  T e r m , 1949.

No. 44.«*■ •
t:: ,

P I e m a n  M A R io k  S v v e a t t , P etition er ,

i  v.
.. »

T h e o p h i i .u s  S h î c k e e  P a i n t e r  e t  a l .

7 On a. W rit of Certiorari to the Supreme Court
* : of the State of Texas.• * /• ...
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> BRIEF <PF A M IC I (|uRIAE IN  SU PPO RT QF
\ PE T IT IO N E R

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5

This is a ,brief of amici curiae iii support of petitioner on a 
writ’of certiorari to review the judgment, of the Texas Court of 
Civil- Appeals-:. ( R. 465) affirming a judgment of the District 
Cou?t of Travis County denying petitioner’s request for a writ 
of mandamus •'(R. 438-41 ). .* Review was denied by the 4 exas 
Supreme Court (R . 466). Certiorari was granted by this Couit 
on Nov. 7, r1949. The jurisdictional details are contained in 
petitioner’s brief, and the procedural history of the case appeals 
at Ra 438-72. i Iy »• v

This brief H filed, with the consent of the parties, on behalf 
of tlie Committee of Law Teachers Against Segregation in Legal



f

Education, an organization identified more fully in Appendix A 
to this brief.

The essential facts are as follows :
The courts below have denied petitioner’s application for a 

writ of mandamus to compel the appropriate officials of the Uni­
versity of Texas to admit him to its law school in Austin, Texas. 
He is concededly in all respects qualified for admission to that 
school except for the disqualification of race, for Texas bars 
Negroes from this University (R . 425, 445). The'courts below 
have rejected petitioner’s contention that this exclusion and peti­
tioner’s consequent relegation to a state colored law school vio­
late his rights under the Fourteenth Amendment.

At the time the record below was made, the colored school was 
located in Austin, Texas. It has since been moved to Houston 
(see R. 51-2 ; Bulletin of the Texas State University for Negroes. 
School of Law 5 (1949-50)). Petitioner contends that, for the 
decision of the issues on which he petitions, the location is im­
material except in one important respect: The use of the Univer­
sity of Texas (white) faculty members was contemplated while 
the school was in Austin (R . 454), but a separate faculty is to 
be recruited for Houston (R . 28-9; see Bulletin, supra, at p. 4).

The Texas law school (colored) was set up in response to the 
order of the district court at an earlier stage of this same htiga 
tion (R . 424-33), and it does not appear in the record that there 
have ever actually been any students in it (though doubtless 
there are some), either in Austin or in Houston. Sweatt was the 
first Negro to apply for admission to the Texas law-school (white 1 
(R . 451), and in any case Texas concedes that the colored sclmo
will have very few students (R . 77).

S U M M A R Y  OF A R G U M E N T

The basic position of this brief is that segregated legal ecluca 
tion in the state institutions of Texas violates the ^qual pi ol e 1 11<" 
clause of the Fourteenth Amendment. That position is ap 
proached by three different paths.



3v. - ?,
* • ».x*  ̂  ̂ ■ •

First, anafyfiis of the origins of “ equal protection” in Arherican 
law ihows that, in the form p f “ equality before the law /’ it was 
transferred to tjhis country from the French by Charles Sumner as 
part bf his attaqk on segregated education in Massachusetts a decade 
before the Civil War, and linked by him with the Declaration of 

•Independence.-: Popularized i|y Sumner, it or like phrases became 
the Sogan oFtfre abolitionists* and it passed into the Constitution 
as ai\ important part of the abolitionists’ share o f the Civil W ar. i .« # •
victory. Congress, contemporaneously with the adoption of the 
I'oui/teenth Aniendrnent, deafly understood that segregation was 
incorjapatible yvith equality, a judgment reflected by this Court in 
Railroad C o .'y ., B ro w n , 17 Wall. 445 (1873).

' • ; t '*•
h\'(Plessy yf. B crg u so n , 163$U.S. 537 (1896), this Court aban­

doned the original conception-of equal protect ion, adopting instead 
the ldgal fiction*that segregation (in that case, in transportation) 
is not discriminatory. This tyas a product, in part at least, of a 
policy' judgment that the judiciary was incapable of enforcing the 
Amendment as.it was written: and that the underlying social evil

* must vbe left to 5th e correction /pf time: The Court erred oil both
counts: the judiciary is not s|> powerless as it supposed, and the 
result̂  of its- abdication have* been disastrous. The dissenting 
view a) of Mr. Justice Harlan ifo the P lrssy  case were correct, and

• should be adopted now. 3
3 i  *

Seiiond, we ■■challenge the ^applicability to education of the 
"separate but; equal” refinement of the equal protection clause. 
\Vhile£we graht-the existence â f troublesome clicta, there is neither 
a holding nor even carefully considered dicta by this Court declar­
ing that segregation may be enforced.in any phase of education. 
In Rl$ssy v. P erg n so n  the Court did not say that segregation was 
valid in every context in which men could devise ways o f separat- 
fing themselves/by color. Orfc the contrary, it made careful dis­
tinction between reasonable afid unreasonable segregation/ W e 
omtertd that segregation in education, is for this purpose unrea-
Vmablje. • \ ;t

. / v
ilurcl, eveii within the broadest application of P lc ssy  v.‘ P c r -  

•luson'j petitioner is entitled to absolute equality in education.

4



♦

For reasons set forth in detail in the body of the brief, it is im­
possible for petitioner to receive at the improvised colored law ' 
school a legal education equal to that offered at the well-known 
University of 1 exas law school (w hite). Nor,' indeed, can segre­
gated legal education ever afford equal facilities.

A R G U M E N T

I.

TH E  EQ U AL P R O TEC TIO N  CLAUSE W A S  IN ­
T E N D E D  T O  O U T L A W  SEGREGATION.

I }le Court below held (a ) that segregated legal education can 
meet the constitutional standard, and (b ) that Texas (colored) ' 
in fact did so. W e  challenge at the outset the entire basis of 
any decision which assumes that segregation can meet the stand- ' 
arc! of the Constitution. The Negro for whom the first section of * 
the Fourteenth Amendment was primarily adopted was largely . 
read out of that Amendment by nineteenth century decisions.1 
The time has come to reconsider the frustration of so much of . 
section one of the Amendment as relates to the equal protection • 
of the laws.

Society in the past has known intermediate stages of bondage 
between the free and the slave. In antiquity, “ between men of 
these extremes of status stood social classes which lived outside ’ 
the boundary of slavery but not yet within the circle of those 
who might rightly be called free/’2 The Thirteenth Amendment, 
took the Negroes out of the class of slaves. -Section one of the .

1While decisions outside the area of segregation are not directly 
involved in this case, the leading segregation decision of Plessy  v. . 
Ferguson, 1(53 U.S. 537 (189(5), can be understood only as part of 
a group of decisions in the latter part of the nineteenth century, 
narrowly construing the capacity of the Fourteenth Amendment to 
protect Negro rights. Other decisions include the Civil Rights Cases,'" 
109 U.S. 542 (1883), and United States v. Harris, 10(5 U S  (52!) ' 
(1883).

2Westermann, Bctzveen Slavery and Freedom , 50 Am Hist Rev 
213, 214 (1945). h

4



•f

Fourteenth Amendment was intended to insure that they not be 
dropped at some half-way house on the road to freedom. It sought 
to bring file ex-slaves within tile circle of the truly free hy obliter­
ating l§g*al distinctions based on race.

The ^evidence of intefat to eliminate race distinctions in trans­
portation1' and educatioii, relationships which must be considered 
together jn the history-;'of equal protection, is particularly clear. 
Equal protection first entered American law.in a controversy over 
segregated education. r>
1. The original meaning of equal protection is incompatible 

with segregated education;
• • * w

It was-, one thing, and a very important one, to declare as a 
^political’ abstraction that “ all men are created equal,” and quite 
; another-, to attach concrete rights to this state of equality. -.The 
^•Declaration of Independence did the former. The latter- was 
/Charles; Sumner’s outstanding contribution to American law.

v The great abstractiori|of the Declaration of Independence was 
Mhe central rallying point for the anti-slavery movement. W hen  
Slavery ;\Vgas the evil to-he attacked, no more was needed. But 
iis some; of the New England States became progressively more 
'^committed to abolition, the focus of interest shifted from slavery 
.̂ Itself to .the status and rights of the free Negro. In the Massa­
chusetts1'.; legislature in thfe 1840’s, Henry W ilson, wealthy manu- 
Tacturerj abolitionist, anp later ^United States Senator and Vice 
president, led the fight A against discrimination, with “ equality”

his rallying cry.3 One/W ilson measure gave the right to recover 
-/damages, to any person ^‘unlawfully excluded” from the Massa­
chusetts ̂ pbblic schools.4 i\

•v Boston . thereupon established a segregated school for Negro 
^children the legality of Which was challenged in R ob erts  v. C ity
\pf B oston > 5 Cush. (M ass.) 198 (1 8 4 9 ) . Counsel for Roberts 
\------------ _• {

3 For an •'•account of Wflson’s struggles against ant i-miscegenat ii >n 
Jaws, against separate transportation for Negroes, and for Negro 
^education, see Nason, L ife: o f  H en ry  W ilson, 48 et seep (187(5).

4Mass. Acts 1845, c. 214*



was Charles Sumner, scholar and lawyer, whose resultant oral 
argument was widely distributed among abolitionists as a pamph­
let.5 * Sumner contended that separate schools violated the Massa­
chusetts state constitutional provision that “ All men are created 
free and equal.” 0 He conceded that this phrase, like its counter­
part in the Declaration of Independence, did not by itself amount 
to a legal formula which could decide concrete cases. Nonethe­
less it was a time-honored phrase for a time-honor.ed idea and, in 
a broad historical argument, he traced the theory of equality from 
Herodotus, Seneca and Milton to Diderot and Rousseau, philos­
ophers of eighteenth century France.

A t this point Sumner made his major contribution to the theory 
of equality. He noted that the French Revolutionary Constitu­
tion of 1791 had passed beyond Diderot and Rotjsseau to a new 
phrase: “ Men are born and continue free and equal in their 
r ig h ts .”  Using a popular French phrase in English for the first 
time, Sumner referred to “ egalite devant la loi,” or equality before  
the laiv. The conception of equality before the law, or equality 
“ in their rights,” was a vast step forward, for this was the firs! 
occasion on which equality of rights had been made a legal con­
sequence of “ created equal.”

Equality before the law, or equality of rights, Sumner insisted, 
was the basic meaning of the Massachusetts constitutional pro­
vision. Before it “ all . . . distinctions disappear.” Man,
equal before the law, “ is not poor, weak, humble, or black; nor 
is he Caucasian, Jew, Indian, or Ethiopian; nor is he French. 
German, English, or Irish; he is a M A N , the equal of all his 
fellow men.” 7 Separate schools were unconstitutional because 
they made a distinction where there could be no distinction, at 
the point of race, and therefore separate schools violated the prin 
ciple of equality before the law.

r’Among those active in distributing the pamphlet was Salmon l‘ 
Chase of Ohio. Diary and Correspondence o f  Sainton P. Chn.u . 
Chase to Sumner, Dec. 14, 1849, in 2 Ann. Rep. Am. Hist. Ass'n 
188 (1902).

ttThe following summary of argument is taken from the complete 
argument reprinted in 2 Sumner. If'orks 327 et seq. ( 1874 ).

■Ibid.

6



.V
2

s argu-The Massachusetts court, impersuaded, rejected Sumner 
nieq̂ t, and Wal in turn reversed by the state legislature.8 But the 
argument outlasted the cas|, and from it the phrase ‘ ‘.equality 
before the law,” or its briefer counterpart, “ equal rights,” , became 
the tneasuriiigi stick for all proposals’ concerning freedmen.

a. # •> * # r*-
Pjpor to the Civil W ar, the controversy over equality for the 

freepmen was'primarily a depute within the States, but national 
: emancipation ^brought the isiue to Congress where Sumner kept 

“equality’ iti.thc forefront of ( ongressional attention." -Shortly 
before the first, meeting of tHe 39th Congress in December, 1865, 
the new Black Codes in th-e Southern States had shocked the 
North into widespread recognition of the need to secure equality.10 

•• Sumner's popularization of ijis equality theory had been so sue-' 
cessfcul that it§ echo returned from Radicals everywhere.11 Rep- 

■ rese^tative Bingham of Offro offered a proposed Fourteenth 
‘ Amendment-in which the keyjphrase was a guarantee to the people 

of “6qual protection in their ^rights, life, liberty, and property.” 12 
Senator Mop rill of Vermoift, shortly to be a member of the 
Join£.Committee on Reconstruction, sent a note to Sumner sug- 
gestipg that.-tfie best “ jural’'*phrase*’ for an amendment would 

1 be a .'guarantee that citizens £re “ equal in their civil rights, im~ 
.munfties and,<privileges and Equally entitled to protection in life, 
------ *4jt----- ’ ’

, 8Mjass Acts; 1855, c. 250. <
"See, e.g., liis discussion in She Senate of the possible wisdom of 

including “equality” in the Thirteenth Amendment. Cong. Globe, 
38th Cong., 1st Sess. 1482 (1884).

1 "Inanely compilations of these Codes are McPherson, Handbook o f  
Politics fo r  18(58, 29-44 ( 1808)£ 1 Fleming, Docum entary H istory o f  
Reconstruction ic. 4 (1900). y»

’ ’ “Equality.before the law” jjivas the general cry. A  Pennsylvania 
State-Equal Rights League signed its correspondence “ Yours for 
justice and equality before theflaw.” Letter to Stevens of Nov. 1, 

pS t evens'-Mss. (1805), Lib. Cong. And see resolution of Provi­
dence, R. I., . Union League £lub, ibid, asking “our members in 
.Congress” to secure “equal rights of all men before the law.” “ Ab­
solut ,̂ equality before the law” jivas demanded in Grosvenor, 24 New 
duiglander 20^ (1865). See also James, The Framing o f  the Four- 
Iccntdx Am endm ent 29 et seq. ,'Jl939), an unpublished Ph.D. thesis 
in thq-library of. the University^ of Illinois. On the relative amount 

'of attention giyejn the first, as ^bmpared to the other sections of the 
.-Amendment, sfeefnote 22 infra. .- 
• 12Cbng. Glot?e> 39th Cong., 1st Sess. 14 (1805).



«

liberty and property.” 13 Sumner himself introduced a reconstruc­
tion plan, an important part of which included “ equal protection 
and equal rights.” 14

The first relevant measure actually to he considered by Con­
gress was the hill which became the Civil Rights Act of 1866. 
This hill was originally introduced by Senator W ilson of Massa­
chusetts, the same W ilson who had been so active earlier in the 
equality struggles in that state,15 * and we may assume that the 
proposal represented the joint policies of W ilson and Sumner.10 
The W ilson proposal invalidated all laws “ whereby or wherein 
any inequality of civil rights and immunities” existed because.of 
“ distinctions or differences of color, race or descent.” 1 his meas­
ure, as it passed the Senate, contained a clause forbidding any 
“ distinction of color or race” in the enforcement of certain laws, 
and assured “ full and equal benefit of all laws” relating to person 
and property. Senator Howard, a member of the Joint Com­
mittee on Reconstruction, said of the Act, “ In respect to all civil 
rights, there is to be hereafter no distinction between the white 
race and the black race.” 17

The Civil Rights bill was enacted, but over the protest of one 
extreme radical in the House. Representative Bingham of Ohio 
opposed the measure on the ground that the Thirteenth Amend­
ment gave it an inadequate base. He preferred to wait until

13Morrill to Sumner, undated, prob. Oct. or Nov., 1865, in Sumner 
M ss., quoted in James, supra note 11 at 31.

14H) Sumner, W orks 22 (1874). .
ir,Though the measure was introduced by Wilson, actual leadership 

on the proposal passed from him to Senator Trumbull of Illinois, 
chairman of the Judiciary Committee. The proposal originated with 
S.9 in the 39th Cong., introduced by Wilson, from, which the.text 
quotations are taken. A few days later, after floor discussion which 
revealed that Trumbull was willing to take the lead on the measure. 
Cong. Globe, 39th Cong., 1st Sess. 43 (1865), Wilson introduced a 
new bill, S. 55, which retained and enlarged the language of S. 9. 
This bill was referred to by Trumbull’s name but retained Wilson's 
proposals. S. 61 became the Civil Rights Act of 1866. 14 Stat.
(1866).

10Wilson hinted as much. Cong. Globe, 39th Cong., 1st Sess. 3't 
(1865).

11 Id. at 504.

8



9

a .^ w Am^iidlment might |ass which would eliminate all “ dis­
crimination lie tween citizens on account of race or color.” 18 A s  
a member of*the Joint Committee on Reconstruction, Bingham 
wa^ then ^ k . n g  on just|such an Amendment. W ith fellow 

: Coipmittee members such a§ those extreme equalitarians Stevens 
H ° f ard’ aAd jMorrill, there yras no serious obstacle in Committee.’

Bingham:;drafted for the ^Committee the essential language of 
sectfon one of.the Fourteenth Amendment..' In the vital equality

■ cause he combined the language of his own earlier proposed 
amendment,- equal protection in their rights” and the Civil Rights
b' "  benefit.|of all laws” into the concise “equal
protection of the laws.” '"  th e  prompt adoption of the Amend­
ment: earned the aholitionisf theory of racial equality into our 

, hast0 document.2" As S en io r  Howard, floor leader for the 
, moidnient in. the Senate, sa|d of the clause, it “abolishes all class 
legislation m.the States and does away with the injustice of sub­
jecting one caslte of persons tp a code not applicable to another.” -

i le J ore o i ,  the clause he deduced to Sumner’s meaning: “ It. 
establishes equality before the< law , ” 21
-____JL '1; , 4 * ,

18I3. at 1290, j293. J :
w-Triot f„ref ,S ?  co';trib"'i°n J>f the Bingham draft of the clause 
nrVrv^i t rWOr.ds he usecU but in‘ those he omitted. Previous 
! '  ? ®a S had l^ e tim e s  carried words of qualification as to the par- '- 
t.ailar types of laws as to whidj equal protection was to be afforded 
1 he Cwfi Rights bill in the S^ate  had referred to “equal benefits
^ d  f c r e d  " gS- • -eCurity of I>erson and estate,” andnacl rjtei red iq discriminatiQn in civil rights and immunities”
Bingham saw hbpelcss confusidli in these refinements, see remarks ■
utcd, qupra note •!8, and omittedjthem. He thus brought the language
■ !nto af CPrd w,t.h the broad “equality before the law.” ' * •

do nois ) n tracing th,s history of the phrase “equal nrotec-
lion, qverloolc sporadic earlier jitses of similar language. See e q  ;
Me c £ °s tStA r C l  H  ConSt- Ar«.gV I8 ( ,7 9 8 ).; and• ’ - S r '  •’  ̂  ̂ (1819). *.The context of those Articles deni
mg w.ft freedom of religion, art so aliert to .he subject a hand h
!nenlAfre " ever- r” k'rred tl> «>f>«*ion will, the Fourteenth Ameiuh
l ' V ^  Globe,',39th Cong., tsi Sess. 27CCi f 18G0) Some of the

aS the text "bove,must

L  * *



10

Because the primary concern of those who enacted the Four­
teenth Amendment was with sections two and three of t e men 
meat rather than section one which includes equal protection, 
we do not have complete evidence of the views of all the respon­
sible men of the time on the meaning of equal protection W c  
do know that the clause found its way into the Constitution 
through Sumner, through Wilson, through Trumbull and through 
the twelve majority members of the Joint Committee on Recon­
struction. O f those fifteen at least eight— Sumner, W ilson, Bing­
ham, Howard, Stevens, Conkling, Boutwell and M orrill-th ou gh t  
the clause precluded any distinctions based on color. lh  e 
Trumbull, Fessenden, and Grimes— had some mental reservations, 
particularly as to miscegenation, although they agreed generally

22Mnrh of the murkiness in the history of “ privileges and lin- 
>» ii rcnn ” and “due process,” as well as equal protect > ,

"s produced by the 'fact that what has become the only significant part 
nf the Amendment was then the least significant part. iL  >
?• . represented a coalescence of certain economic and political
interests along with the abolitionists. Standard references on * *  
mtercsts, S f R - r Am crlcan Civilization c. 23
^ d ’ “  Morri^n and C o n n e r ,  The Growth o f  Re-
a n ,u<>\ The pest telling of the manner in which the s<
^ I t i ^ n ^ ^ ' s r ^ t h e i r  prohilnis by the ,F ™ rte^th  AnienT

„ol the middle sections of the Amendment, while section one was 
abolitionists’ share of the victory.

«.vnu. views of Sumner, Wilson, and Howard are apparent from

Pout well are apparent from their consistent support of the Sun n< 
civ rights hiil! discussed in detail, infra The case a. to B ingW
• rle-ir since his pre-occupation in the Amendment was argi
wi h !i h "  pr’S s ’ an 1 inunu’ ities clan* hi, specia contr iu.,,0 
r-f 9 P nut well Ramin sconces o f  S ixty Years 41. lluw"

view'was apparently in accord with the others o this> -
evidenced at least hy some phrases. See, c.g., CO g.
Cong., 1st Sess. 121)3 (18GG).

r
IH
V



with;.t:he other*!. Fhe positions of the remainder we do not know, 
though somfe,..at least, doubtless agreed with Sumner.25- It was 
tliuŝ  the dominant opinion *;of the Committee that the clause
eliminated distinctions of cofor in civil rights

• '.r • > ■
.; ; •. V . .

2. Contemporary rejection^ of ’ ’separate but equal” in Con­
gress, impiediately before and after the Fourteenth 
Amendment, represent^ a judgment incompatible with
segregated, education. 1 ■ '‘ \ 1 . .. • t ■

Congress Repeatedly considered “ separate but equal” in the Re- 
construction decade, particularly in connection with transporta­
tion.  ̂ Railroad".and street carxompanies in the District o f Colum­
bia early began to separate '(while and colored passengers, put­
ting them in: separate cars oij, in separate parts of the same car, 
with quick Congressional response. As early as 1863, Congress , 
amended the charter of the Alexandria and Washington Railroad 
to provide tha,t “ No person .Shall be excluded from the cars on. 
account of color.” "0 When, irj 1864, the Washington and George­
town* street c)ap company attempted to handle its colored passen- 
gers Jyy putting them in serrate cars, Sumner denounced the 
practice in the . Senate and sjet forth on a crusade to eliminate 
street- car segregation in the$District.27 After a series o f skir- ' 
mishes, he finally carried to passage a Jaw applicable to all District 
carriers that .‘up person shall be excluded from any car on account
•of color.” 28 5 • )• / t ••
■' 6 * y

24Ffessenden'a^nd Trumbull believed that the Civil Rights Act and ; 
the Atnendmefit did not affect 'jmti-miscegenatiqn legislation. Cong. 
Clobe, 39th Cong., 1st Sess. (ft)5 (180(5) (Fessenden) ; id\ at 322 
( 1 rufihbull). In 1864 Grimes tfro light segregated transportation was ' 
qiuab Cong. Qlobe, 88th Cong., pst Sess. 8133 (1864), with Trumbull 
apparently contra on that issuer «/. at 3132. Whether the views of 
.brinies changed- is not known. ■%

2BTjiese fouf jnembers, 11 arris, Williams, Blow, and Washburne, 
-were conventional radicals andj Harris,-Blow, and Washburne had ' 
very strong anti-slavery backgrounds. It is therefore highly probable 
jliat alt least SQntp of them shared the views of Sumner and Stevens, 
but wfe have np direct evidence.;

2012 Stat. 8Of):( 18(53). §
a7Cfcng. Globe;-'38th Cong., IsCSess. 553, 817 (1864)
2813 Stat. 537 X1865). *



i

The discussion of the street car bills, all shortly prior to the 
Fourteenth Amendment, canvassed the whole issue of segregation 
in transportation. Those who supported the measures did so on 
grounds of equality. Senator Wilson denounced the “ Jim Crow 
car,” declaring it to be “ in defiance of decency.” 20 Sumner per­
suaded his brethren to accept the Massachusetts view, saying that 
there “ the rights of every colored person are placed on an equality 
with those of white persons. They have the same right with white 
persons to ride in every public conveyance in the common­
wealth.” * 30 Thus when Congress in 1866 wrote equality into the 
Constitution, it did so against a background of repeated judgment 
that separate transportation was unequal.31

The history of equal protection and separate schools, though 
less clear, suggests a similar interpretation. The close of the War 
found public education almost non-existent in the South,32 and 
Negro school status in the North ranged from total exclusion from 
schools to complete and unsegregated equality.33 Four Southern 
Reconstruction constitutions provided for mixed schools, and the 
Northern educational aid societies offered unsegregated education 
in the South.34 Although these efforts to achieve unsegregated 
education were of little practical effect, they indicate the intel­
lectual atmosphere from which equal protection emerged. The 
abolitionists were absolutely confident that the races both could

12

See rc-
2nCong. Globe, 38th Cong., 1st Sess. 3132, 3133 (1864).
30/</. at 1158. .
:nThis was clear even from the conservative viewpoint, 

marks of Senator Reverdy Johnson, id. at 1156.
},2One of the many works on the subject is Knight,' The Influence 

o f  Reconstruction on Education in the South  (1913).
3:?An extensive account contemporary with Reconstruction, much 

broader in scope than the title indicates, is Spec. Rep., Commissionci 
o f  Education on Condition and Im provem ent o f  Public Schools, Dust. 
Col., H R. Exec. Doc. No. 315, 41st Cong., 2d Sess. (1870).

•^Materials are collected in 2 Fleming, supra note 10 at 171-212. 
Even conservative Southerners, when they sought to give full com­
pliance to the Fourteenth Amendment, conceded that equality required 
unseeregated education. See Williams, The Louisurna Unification 
M ovem ent in 1873, 2 J. South. Hist. 349 (1915), describing the con­
cession of mixed schools by a political group headed.by Gen. 1 . 1. 
Beauregard.



arid should, -under the principle of equality, mingle in the school 
rooms.30 - . |

?The primary responsibility of Congress for education was in 
the; District pf Columbia, where a segregated system was a going 
operation prior to the endjjof the Civil War. Securing a place 
on.; the District of Columbia Committee, Sumner proceeded to 
atfĉ ck discriminations in t£e District one at a time.30: Since he 
ch&se first:, to eliminate restrictions on Negro office-holding and 
jufry service,- he did not r^acli the school question on his own 
agenda until 1870.37 He then twice carried proposals through 
the Committee to eliminate the segregation,38 and urged his 
piqiposal oil the floor of th£ Senate on the grounds of equality: 
C^ery child, white or blacfi:, has a right to be placed under pre­

cisely the Ratine influences, jwith the same teachers, in the same
school rooffi, without any ̂ discrimination founded on color ” 30
— it--------  •« fr*• *

/ T'he Arrtendment must b© read in the light of this psychology of 
optimism. Immediately after’jh e War the abolitionist societies under­
took educational work in the fouth on a large scale, fully recorded in 
such of their journals as The .American Freeman  and the Freem an 'v 
Journal The‘Constitution of, the Freeman’s and Union Commission 
provided that No schools or Supply depots shall be maintained from 
the benefits of-winch any person shall be excluded because of color” 
Ih d A m . Freeman  18 (1866)^ Lyman Abbott, General Secretary of 
the Commission, published a statement explaining that the policy had 
heerj fully considered: “ it isjinherently right. To exclude a child 
Irorh a free scliool, because h£ is either white or black, is inherently 
wrong . . . i [W e must | lead public sentiment toward its final 
goal-, equal justice and equal rights . . . .  The adoption of the 
leverse principle would really jlend our influence against the progress 
of liberty, equality, and fraternity, henceforth to be the motto of the 
republic. Id, at 0. 1 he fact is* that few whites attended these schools, 
floyd, Some Phases o f  Educational H istory in the South since JS65 
Studies in Southern History 259 (1914).

30Sumner expounded this seriatim policy in Cong. Globe 10th 
tong., 2nd Sess. 39 (1807). 7.

,7The jury and office law was twice pocket-vetoed by President 
Johnson, and Sumner, therefore, had to secure its passage three times 
nefote it became effective in President Grant’s administration 10 Stat 
3 (1809). ..............

,18S. 301, (Joiig. Globe, 41st) Cong., 2nd Sess. 3273 (1870) and 
S. 1244, u l  at 1053 et seq. :V 

™fd. at 10557



14

The most important new voice heard in the District of Colum­
bia school debate on Sumner s proposal was that of Senator Matt 
Carpenter of Wisconsin, a leading constitutional lawyer of his 
time and prevailing counsel in E x  parte Garland, A- W all. 333 
(1867), E x  parte M cC ardle, 7 W all. 506 (1869), and the 
S la u g h ter-H ou se  C ases, 16 Wall. 36 (1873). Carpenter said:

“ M r. President, we have said by our constitution, *we 
have said by our statutes, we have said by our party plat- 
foi ms, we have said through the political press, we have 
said from every stump in the land, that from this time hence­
forth forever, where the American flag floats,[there shall'he 
no distinction of race or color or on account of previous 
condition of servitude, but that all men, without regard to 
these distinctions, shall be equal, undistinguished before the 
law. Now, Mr. President, that principle covers this whole 
case.” 40

Filibuster, not votes, stalled the District of Columbia school 
measure.41 Sumner thereupon terminated his efforts to clear up 
discriminations one at a time and determined to make one supreme 
effort along the entire civil rights front. He put his whole energy 
behind a general Civil Rights bill, which forbade segregation 
throughout the Union, in the District of Columbia and outside 
it, in conveyances, theaters, inns, and schools.42 The consideration 
by the Senate of this measure, which in modified form became 
the Civil Rights Act of 1875, represents an overwhelming con- 
tempoi ary judgment that separate but equal” schools, wherever 
located, violate the equal protection clause.

In the debates on this new civil rights bill, the leading cases 
on which this Court relied in R lcssy  v. b  crgusovi were pressed 
upon the Senate and rejected as unsound. R ob erts  v. C ity  o f

"'Cong. Globe, 41st Cong., 3rd Sess. 1033 (1871).
41 Hy 1872, the filibuster had come into frequent use in the defense 

against radical legislation. By a vote of 35 to 20 Sumner defeated 
those who sought to keep his District school measure off the floor 
entirely, Cong. Globe, 42nd Cong., 2d Sess. 3124 (1872), but his time 
was used up before he could bring the matter to final vote.

42 1 he measure was proposed by Sumner both as a bill and as an 
amendment to other lulls over a period of years. Its final presenta­
tion was in the 43rd Cong., S. 1.



€5 15

Rost on, supra, was quoted without avail 4!l a , . ,
(),f  ĉecisioii', State  v. M c& am i, 21 Ohio St 198 ( 1 8 7 2 f
f  “ “  — is f e 12 a , e qi,ate° t s ! e je(^ :

T ^ S r /L T n ';0 kne*  '!,e FoUrtee" th Amendment b e lt -
M a d e  A c t i o n s  b eT u s f of T J c  ag^ 1 ^ at the A mend,nent 
u j ,  . u  i . , . v ,,J race. A s  Senator Edmunds of
• V  2 ‘ ?r C lalrm;ui ofltbe Senate Judiciary Committee nut 

t e° ,e r̂ eC,etl - l « - ‘ efecbo„ls : “ This is a matter A b s  ent
■gfit, unless you adopt the Slave doctrine that color and race are 

teaspns for; distinction among citizens.” " ' Sumner himself de 
.need separate but equag’ in the Senate as he had denounced

* "1 h,S ° ri  i n t e n t  in R ^ r t s  v. C ity  o f  B oston  years W ore
N e n a T a & h ^ T  ‘C  otfter excusewhich finds Equality in

f %?‘ e,s- sel>arate conveyances, sepmate

• the ? ; T te, ! 1U,,rd,C5' a,lf' ^ r a t e  c e m e t e r i^
•• tL  coTtrivanr ' fit,a ^ "bstlU,tes for Equality; and this is .the contrivance hy which a transcendent right, involving a 
«. transcendent duty, is evaded. ^

Assuming \Vhat is most absurd to assume and 
ri at '*. eontradicted b)j all experience, that a substitute can 
,be an equivalent, it is .so in form only and not in real v
',s tJZ t Xith’ theem •>‘ t,SJ n )" Kli8 " i,y to : the colored race, im 
•'acter Jt L  w 1 • <$ slavery, and this decides its char-
acter. U  is S lavery  m  f t s  last appearance.” 40

T je  bill started its final rqad to passage in the 43rd Congress 
As Sumner had died, Senator Frelinglniysen o f New Jersey led 
tie debate fertile bill, beginning on April 29. 1874, with an ex­
tensive argument that segregation was incompatible with the 

. fourteenth Amendment. Ttie bill, he said, sought “ freedom from 
all disci mmiatlon before the Jaw on account of race, as one of the

^'Cong. Globe, 42nd Cong., gd Soss. .320 1 (1872).
th$  on the McCann  case. Id. at! '* th$ time of its hnahconsideration Seminr Tr,-.>i: i

,,, cljarge of; tile bill in the Senate, explained why he 111 "uglCthc 
S es?o 's74T .'STl° l " 0t CO" trf  • 2 C° " « -  Rcc-.34r>a. 43rd Cong., 1st

^’<£ong. Glpl*\ 42nd Cong., Id Sess. 82(10 ( 1872).
Cong, dope, 42nd Cone \2d Sess •■iqo aua / iq^ i \ / ,added). "t,-, ĉ.ss> J84 (.18*1) (emphasis



i

16

fundamental rights of United States citizenship.” 47 For this he 
found full warrant in the equal protection clause. Segregation 
in the schools, he said, could only be voluntary, for the object of 
the bill is to destroy, not to recognize, the distinctions of race.” ‘s

There were in the Senate three distinct views on the problem 
of segregated schools. A minority thought that ‘ ‘separate but 
equal” schools should be permitted. On May 22, 1874, an amend­
ment to that effect offered by Senator Sargent o f California was 
rejected, 26 to 21. Those 26 included Morrill, Colliding and 
Boutwell, who had been on the Committee which had drafted the 
Amendment. By voting to reject the “ separate but.equal” school 
clause, they necessarily indicated a judgment that Congress had 
power to legislate against segregated schools under the equal pro­
tection clause. This contemporary affirmative and deliberate 
interpretation of the Constitution is entitled to great weight here. 
M cP h erson  v. Slacker, 146 U.S. 1, 27 (1892).

The 26 were not themselves of one mind. Senator Boutwell 
represented a small minority view that separate schools neces­
sarily bred intolerance and therefore should not be allowed to exist 
even if both races desired it.40 However, the dominant Senate 
opinion was that separate schools should be forbidden by law, ns 
the Amendment and this bill forbade them; but that if the entire 
population were content in particular instances to accept separate 
schools, it might do so. Senator Pratt of Indiana, one of the 
most vigorous supporters of the bill, noted that Congress was con­
tinuing separate schools in the District of Columbia because both 
races were content with them; and at the same time he pointed 
out that where there were very few colored students, they would 
have to be intermingled/’0 Senator Howe put it most concretely 
when he observed that if, by law, schools were permitted to be * 4

472 Cong. Rec. 3452, 43rd Cong., 1st Sess. (1874). •

4i'“ lf it were possible, as in the large cities it is possible, to estabh-h 
separate schools for black children and for white children it is mi l "  
highest degree inexpedient to either establish or tolerate siu ' 
schools.” From speech of Senator Boutwell, id. at 44 lf>.

■•"Id. at 4081, 4082.



4
17

V r t
serrate, thej would never in fact be equal. He believed in pro-

■' ! " t T f  SeP7 a ‘ ? Sl!h00lS a" l  ,he"  People do as they chose:
the individuals and n<rt the superintendent of schools judge 

ot the comparative merits <̂ f the schools.” 51 '

' ., I he bin^ f SSed the .Se«4«> but in the House the result was 
different. Th.e bill passed, l*ut with the school clause deleted.

this deletion was the product of many factors. The House 
had.J>reviouSly voted to require mixed schools,5* but on this occa- 
Sion, it was, confronted with- the firm opposition of the George 

eabody Fund. Peabody, American merchant who founded 
wha{ became. J; P. Morgan &*Co„ established a fund of $3,000,000 
to aid education in the Sofith. As abolitionist education aid 

: societies ran put o f money# and collapsed, the Peabody p'und 
became the only major outside agency aiding Southern education. 
Ihe-fund °0P|?sec' mixed sclibols, withdrawing its aid where they 
were required.J3 It claimed fredit for inducing President Grant 
to '"Struct lriSi House floor leader to abandon the school provi­
sion,  ̂ Coupled with this pressure were tlireats from Southern 
representatives’ that they would end their newly founded-public 
schoql systems i f  the Senate measure passed.05 In addition, some 
■ teprgsentativ.es felt that the courts would protect the Negroes on 
tlie sphool issue, and thus as a matter of legislative discretion 
waived the right to legislative aid.00 ] 'or whatever combination------1 v   ■*’ . *T “ r t '

R,M. at 415i. h -- i
104? Cong. Globe, 42nd Cong., 2d Sess. 2074 (1872)

( ouge refused, <4 to 99. to la^bill on table) ; id. at 2270 2271 (en-
* , vS ei a,K! reat?-ll,rcc ,i,,u's’ J<*> «> 78) ; no final action taken

•2 Fleming, supra note 10 at 194. During this period the Fund 
was tinder the direction of Dr. ifarnas Sears, later succeeded by I 1 

C? rr#. ,l? a volume on: the work of the Fund, introduces 
" U t(>eic. of llllx^  schools with the words. “ Some persons, not to ‘the 
liannef born , took the lead in organizing a crusade for the co-ecluea-
( IK08°/. ' rry’ B f f  SkctCh ° f  GcorSc Peabody  .10

•'Vf/. at 64, l
\ i S,4 .  ^ctission of this IX)int by Representative Roberts, who 
slated *hat he preferred to prohibit segregated schools but would vote 
o omit the clause for fear thp South would abolish all schools 

.1 Con£ Rec. 981; 43rd Cong., 2cJ Sess. (3875).
' Se6 remarks of Representative Monroe, id. at 997 998

r \ » • ’



of reasons, a leading Negro Representative from South Carolina 
consented to eliminate the school clause in return for assurance 
that the rest of the bill would pass.57 The House result, clearly, 
thus represented a political rather than a constitutional judgment:

In summary, ecpial protection as a legal conception originated 
before the Civil War in Sumner’s attack on segregated schools.'
It became the abolitionist rallying cry and was brought into the 
Constitution by the abolitionist wing of the Republican Party. 
Before the Fourteenth Amendment was adopted, “ equal rights’’ 
was thoroughly understood to mean identical, and not separate 
rights, particularly in transportation. That was the view of the 
dominant group among those who actually phrased the Fourteenth 
Amendment. Throughout the debate on the Amendment its sup.- 
porters acknowledged no doctrine of equal but separate as an 
exception to the fundamental concept of equal rights. Contem­
porary legislative action confirms this basic position.

3. In Railroad Co. v. Brown, this Court early decided that 
“ separate” could not be “ equal” .

In the leading case o f R ailroad Co. v. B row n , 17 Wall. 445 
(1873), this Court early decided that separate accommodations, 
no matter how identical they might otherwise be, were not equal.

On February 8, 1868, Catherine Brown, colored, attempted to 
board a railroad car on a line from Alexandria to ;.Washington. 
That road had a “ Sumner amendment” in its charter which pro­
vided that “ no person shall be excluded from the cars on account 
of color.” ™ The railroad maintained two identical cars, one next 
to the other on the train, using one for white and the other for 
colored passengers. When Mrs. Brown attempted to sit in the 
“ white” car, she was ejected with great violence.

The pertinent legal issue in Mrs. Brown’s case'was whether 
segregation amounted to the same thing as “ exclusion from the 
cars.” The episode attracted immediate attention. because Mrs.

18

r,7See remarks id. at 1)81, 1)82. 
r,s 12 Slat. 805 (18(33).



t ■ •

( . 
j t

-f
*« 19

Brdwn was }n charge of gie ladies’ rest room at the. Senate. 
A Senate investigating committee concluded that the Company 

:• latt vlolab-d dts charter, aijd recommended that the charter be 
; reP.?aled ifVMrs. Brown \fere not fully compensated by civil 

damages.B0 V i
i  -

At the ttfel, the Compariy unsuccessfully asked for a charge 
to tpe jury ihat separate but* equal cars complied with the statute,

• and; in the Supreme Court argued that “ making and enforcing 
the separation of races in itij cars” was “ reasonable and legal.” 00

, Tjjhe Supreme Court unanimously rejected the “ separate but 
equal” argument as “ an ingenious attempt to evade a compliance 
with the obViQus meaning o| the requirement.” 01 The object of 
the jSumner^aftiendment, said! the Court, was not merely tp let the
Negroes buy transportation,; but to let them do so without “ dis­
crimination”  :v

> Congress, in the belie£j.that this discrimination was unjust, 
.acted, y It told the cojfnpany, in substance, that it could 

.road into tlfe District as desired, but that this 
^discrimination must cesfcse, and the colored  and 'white race, 

the *se  o f the cars, be placed on an equality. This con­
dition  it 'had the right;-to impose, and in the temper of 
CCongrejjs'.at the time, it As manifest the grant could not have
vbeen m£de without it.” 0?

: y r‘ ••
Thus in its first review of |‘separafe but equal,” this Court held 

that 'segregation was “ discrimination” and not “ equality.” We 
ask the Court to apply that 6ame principle in the instant case. 
------ _------ j  z ' ■

50Sen. RepC Jtfo. .131, 40th C$ng., 2d,Sess. (18G8).
fl°The quotatipn is taken frorft the brief on file in the Supreme Court

•t t «■ p
0117 Wall. 445, 452. The sapie approach as that of the Brown case 

is taken whenever a statute which requires “equal” treatment is held 
[°. X ° - ~  segr€gati°n. See, ela., Baylies v. Curry, 128 111. 287 21 
N.E..595 (1889 ) (restricting Negroes to particular theater seats held 
violapon of statute) ; Jones v. Kehrlein, 47 Cal. App. G4G 194 P 55 
(1920) (same).' '• ’

°“W Wall. 445 at 152, 153 (%niphasis added).



f

4. Plessy v. Ferguson, which undid the Brown case and the 
legislative history of equal protection, should be over­
ruled.

Twenty years after R ailroad C o. v. B row n , this Court took 
a wholly different view of segregation.

The exact issue in P lessy  v. F erguson , 163 U.S. 537 (1896),- 
was whether a Louisiana requirement of separate railroad ac­
commodations denied equal protection. Mr. Justice Brown for 
the majority held that this segregation did not stamp “ the colored 
race with a badge of inferiority.” If it did so, said he, “ it is' 
not by reason of anything found in the act, but solely because 
the colored race chooses to put that construction upon it.” <i:j

Mr. Justice Harlan, dissenting, states our case:
“ It was said in argument that the statute of Louisiana 

does not discriminate against either race, but prescribes a 
rule applicable alike to white and colored citizens. But this 
argument does not meet the difficulty. Everyone knows that 
the statute in question had its origin in the purpose, not 
so much to exclude white persons from railroad cars occu­
pied by blacks, as to exclude colored people from coaches 
occupied by or assigned to white persons . . . .

“ The white race deems itself to be the dominant race in 
this country. And so it is, in prestige, in achievements, in 
education, in wealth and in power. So, I doubt not, it will 
continue to be for all time, if it remains true to its great 
heritage and holds fast to the principles of constitutional 
liberty. But in view of the Constitution, in the eye of the 
law, there is in this country no superior, dominant, ruling 
class of citizens. There is no caste here. Our Constitution 
is color-blind, and neither knows nor tolerates classes among 
citizens. In respect of civil rights, all citizens are equal 
before the law. The humblest is the peer of the riiost power­
ful. The law regards man as man, and takes no account 
of his surroundings or of his color when his civil rights as 
guaranteed by the supreme law of the land are involved. It' 
is, therefore, to be regretted that this high tribunal, the final 
expositor o f the fundamental law of the land, has reached

20

03Plessy v. Ferguson, 163 U.S. 537, 551 (1896).



*4
r.■$

, f  '  T ?  " ’ the D r o d f c o t t  case.” (1 6 3 -U S. at 556-9)
•,. C° re ? f?M r- Justice Brown’s argument is i„ his assunin 

• ,v " t a‘ Ŝ g a t i o n  is not aSwhite judgment of colored inferior-"
ty ,Th,s would be so palpably preposterous aŝ  a statement o f

t e  o f ^ e V St aSSUme Jt l 'Ce Brown " ’ ‘ ended it as. a legal

t z s & r f f s t  t f . - r  * r -  « • *
W esj, castes ^  I,lilia    ,fj, ”  »  £ 5 " * ^

. a & s j ? * 11* *...... t  * ” 'r « . »  -  . l a s :

• The real question, thereto*, is why should the Court'have

f t S n l y t o ^ ll fiCti0n? S' ,DWcI the C m ' n  have thought
than discrimination? ** Cte'1S<|t,,at segregation is anything other

s i s  . ^ ; r nth “ ient- ,,ot

c s s s z z ?
*" ' 1 erve for l" e N- °  3  ^

nf:d^PourreerTil^Am^dnieilh<:fw e rgtr^nt ” leanjn*’
termination of 'segregation is & t &. • ?  ^  ' y  m,pl,es- that
rontenrf: that th e *  ^s n I •£ W,th traditio"- But we
_ ____ £. ? nothing ,h the tradition of Negro slavery

Me 3 War^em'rfe fi!^ rra !cyCuWrtS ?f /V  •l'ec,°’I.struc*,'° n decisions,
(1926) « He lists Brree factors-d i/ " .U m M  ,? '«* «*  H istory  fins
T ,estion': from national politics'- fhe deshe V’ el" / " nate “ ‘ he Negro 
"> state authority,- 'and the desh-i ... , ’ r,-eleK:lfe the Negroes

Shuth. O ^ ’ central ^  on£  S i ? " " "  "  the Court 
been sacrifice* for an£ or all fcf Z  J L  ’S S S '  8h° UW * *

V v :j { 21



22

that is worth preserving. The Thirteenth, Fourteenth and Fif­
teenth Amendments committed the country to the -great experi­
ment of making a complete break with that tradition. When 
Charles Sumner gave the abolitionists the formula of equality 
before the law, he did not mean equality with reservations, equal­
ity with segregation. Decisions such as P lessy  v. F ergu son  turn 
the Fourteenth Amendment into a phantom or a grotesque mis­
take. A s Senator Frelinghuysen said in presenting the anti-segre­
gation Civil Rights Bill of 1875 to the Senate:

“ If, sir, we have not the Constitutional right thus to legis­
late, then the people of this country have perpetrated a 
blunder amounting to a grim burlesque over which the world 
might laugh were it not that it is a blunder over which 
humanity would have occasion to mourn. Sir, we have the 
right, in the language of the Constitution, to give ‘to all 
persons within the jurisdiction of the United States the equal 
protection of the laws’ .,M1,>

This Court should return to the original purpose of the equal 
protection clause, to forbid distinctions because of race. State 
enforced segregation is unconstitutional because it makes such a 
distinction. A s Senator Edmunds put it, it is “ slave doctrine 
to make color and race reasons for distinctions among citizens. 
Segregation is discrimination. Railroad Co. v. Brozvn, supra.

II.
TH E  BASIC POLICIES U N D E R L Y IN G  TH E C O U R T ’S 

A P P R O V A L  OF SEGREG ATIO N  IN  PLESSY V . FER­
G U SO N  H A V E , IN  TH E YEARS IN T E R V E N IN G  SINCE 
T H A T  DECISIO N, PROVED T O  BE N O T  O N L Y  
W H O L L Y  ERRONEOUS B U T SERIOUSLY" D ESTRU C­
TIV E  OF TH E  D EM O C R ATIC  PROCESS IN  THE  
U N IT E D  STATES.

If the meaning of equal protection, whether considered in terms 
of historic intent or of the ordinary meaning of words, is clearly 
incompatible with segregation, as we say it is, then the further 
task confronts us of assessing the underlying bases of P lessy  v.

(,r>2 Cong. Rec. 3451, 43rd Cong., 1st Sess. (1874).



23

Fergus o n ., .Concededly ‘a^page of history is worth a volume of 
logic.” N ew  Y ork  Trust. C o. v. E isner, 256 U .S . 345 , 349 
( f^ 21) . This Court must deal with the same practical consider­
ation that ;faced the Court-tin the nineteenth century. Petitioner, 
if fie woul<ji persuade you t$ reconsider E lessy, must persuade you 

Ha r lap's dissent had more than a theoretical validity.

jTwo fundamental judgments of fact and policy underlay the 
decision of the majority m P lcssy  v. F ergu son . One was the 
Court’s acceptance of the premise that, since “ [legislation is pow­
erless to eradicate racial iititincts or to abolish distinctions based 
upon physical d ifferen ces,it is impossible to eliminate segrega­
tion founded in the “ usage£, customs and traditions” of the com­
munity, arfd hence the Constitution must bow to the inevitable. 
Tlp  ̂ other^vwps the Court s«assumption that the wiser policy was 
to det events /take their course and that governmental intervention 
“cffn only result in accentuating the, difficulties of the present situ­
ation.” ld3; U .S . at 550-2£• ‘ r* .*

.Over half '.a century has passed since the Court decided P lessy  
v. ip  erg us of 1, In these ye^rs much that was obscure about the 
practice o£ segregation has become clarified. A s events have 
unfolded, as', trends have ^become more distinct, as additional 
knowledge has been gained,/the impact of segregation upon Am er­
ica^ life has ̂ -emerged more clearly. Tn the light of these inter­
vening developments, the b£sic judgments made by the Court in 
P lessy  v. F ergu son  have proved to be erroneous. Indeed, far 
frofn solving* Or even alleviating the problem of racial segregation 
th^-decision of the Court hî s tended to intensify it and to create 
conditions that threaten to itndermine the very structure of Am er­
ican democratic society. I

V *■ - V

T .^The ju>dgnient of the-Court in Plessy v. Ferguson that 
direct governmental intervention to eliminate segrega­
tion is ineffective to overcome the prevailing customs of 
the com/nunity has proved to be without foundation.

There are severe limitations, of course, upon the effectiveness
of (direct legal.compulsion td wipe out the gap that exists between•• •" ' >* .■

*



24

5

American theory and certain American practices in race relations.
But the fact is that the ideal of racial equality is a deeprooted
moral and political conviction of the American people. Decisions
of this Court upholding that conviction, therefore, cannot fail to
have a profound and far reaching effect upon the constant strug- ^
gle being waged between ideal and practice. And, conversely, j
a decision that fails to give support to that conviction must neces-
sarily have important depressing and retarding consequences. J

Ji
Experience has shown that this Court is not as impotent in the >

field of race relations as the majority in P lessy  v. F ergu son  
assumed. On the contrary every decision of this Court against v
racial discrimination has made a significant contribution toward' i
the achievement of racial equality.

Concrete evidence is available, for instance, that the decisions |*
of this Court in the white primary cases have not only eliminated 5
the institution of white primaries but have resulted in a substan- .
tial increase in Negro voting. V. O. Key, in his careful study 
entitled S outhern  P olitics, reports that except in four states of 
the Deep South the decision in Sm ith  v. A lhvriglit, 321 U.S. 649 
(1 9 4 4 )t was accepted “ more or less as a matter of course.” 00 J*
Pointing out that the effect o f the decision was not felt until the- |
1946 primaries, he notes that “ Florida experienced a sharp in-' j.
crease in Negro registration after 1944” ; that “ [i]n  1946 the j'
voting status of Georgia Negroes changed radically,” the number- 
of Negro registrants rising to an estimated 110,000; and that in 
Texas, “ with a few scattered local exceptions, Negroes voted f.
without hindrance in the 1946 Democratic primaries.” 67 Key j,
reports that four states— South Carolina, Alabama, .Mississippi 
and Georgia— made strenuous efforts to avoid the-effect of the 
A lh vriglit case, but that these efforts were quickly nullified by the 
courts in both South Carolina and Alabama. With respect to. 5
South Carolina he observes :

“ Negroes have encountered stubborn opposition to even t.
a gradual admission to Democratic primaries in South Caro-

« «K ev .  Southern Politics (>25 (1049 ).
" ' Id '  at t>25. 519-521.



4
4
t

>i*.

v<• 25

f-r

i

* Ima. The last vestige: of the white primary was 'stricken 
f, t,own oy? court action fn that state in 1948. Prior to that 
; time virtually no Negroes voted in the primaries. About 
> 35,000}-are reported to;have cast ballots in the 1948 prim-

.* ai>- 4
^hus it is iClear that judicial decisions have been a powerful

• influence in^assisting the N^gro to obtain the right of franchise.
I h^.decision of this Court i|i M organ  v. V irgin ia , 328 TJ.S. 373 
(19^6), has; made an important contribution to racial equality in 
the.^ield ofyt^ansportation.°4' And evidence was offered in the

\ i,,st^nt case-showing that where segregation in the University 
of $farylan(| Taw School wps ended by judicial compulsion the 
subsequent experience was \yholly satisfactory.70

TJiat the majority in P lessy  v. F ergu son  greatly over-estimated 
the practical difficulties of eliminating segregation through gov­
ernmental action is likewise; apparent from the accumulation of 
evidence in recent years that’discriminatory practices, long rooted 

m  tbe "usages, customs and traditions" of the community, can 
be successfully eradicated. The President’s Committee on Civil

• Pigftts, in opt; of the most significant findings of its well-docu­
mented repottc concludes: :

: »’• • f:
? reason and history were not enough to substantiate
pie argument against segregation, recent experiences further 
strengthen it. For tlies^ experiences demonstrate that segre­
gation i$ an obstacle to Establishing harmonious relationships 
.simong groups. They pijove that where the artificial barriers 
t hat divide people and groups from one another are broken, 
tension and conflict begip to lie replaced by cooperative effort
and an environment in which civil rights"can thrive.’ ’71

___ 1 * /•

.<>8// • a* 522: : For a Till account of Negro voting and the white 
primary litigation, see id. at 51 £ 2?. 019-43.' See also Murray (PM ) 
N ie h c g r o  Handbook 48-53 (1949). It has been estimated that the
S n  n i l  ’°  i o ^ ° eS registered| °  vote 1n the -South increased from' *J1.1,0©0 in 1940 Jo over 1.000.000 in 1948. Id. at 53.

<!!>Sye, e.g., uj. ‘at 94. v
This evidence waj excluded by the trial court.

W 'Rt e rt, o f- ? res,’dent’s Committee on Civil Rights To Secure 
ThrsHRig/its 82+3 (1947). .1 °  £ r£



26

Specifically in the field of education I. E. Taylor,' after noting 
the increase of Negro teachers in white colleges, observes:

“ Reports are coming in that Negro scholars are giving 
a good account of themselves, that their students are enthu­
siastic and open-minded, and that alumni and parents are 
taking the situation calmly.’ ’72 73

The elimination of segregation in public housing raises issues 
perhaps more difficult than those involved in its elimination from 
higher education. Yet Charles Abrams, one of the country’s fore­
most authorities on housing, writes :

“ Where Negroes are integrated with whites into self- 
contained communities without segregation, reach daily con­
tact with their co-tenants, are given the same privileges and 
share the same responsibilities, initial latent tensions tend 
to subside, differences become reconciled, cooperation en­
sues and an environment is created in which interracial 
harmony will be effected.

“ This conclusion is supported by many reports of housing 
authorities who have ventured into mixed occupancy.” ™

Experience with the abandonment of segregation in the armed 
services, again closely comparable with the situation in higher 
education, has been similar. The report of the President’s Com­
mittee on Civil Rights cites an illustration involving Negro and 
white soldiers during the war :

“ The Negro soldiers were trained and organized into pla­
toons, which were placed in regiments in eleven white com­
bat divisions. For months the Negro and white.men in these

727aylor, N egro 1 cachcrs in W hite Colleges, (55 School and Society 
369 (1947).

73Abrarns, Race Bias in Housing 22 (1947), pamphlet published 
jointly by American Civil Liberties Union, National Association for 
the Advancement of Colored People, and American Council on Race 
Relations. For other accounts of the successful elimination of segre­
gation in housing see Ottley, The Good-Neighbor Policy— A t H om e, 
Common Ground, Summer 1942, p. 51; Manning and Phillips, 
N egroes as Neighbors, 13 Common Sense 134 (1 9 4 4 ); Horne and 
Robinson, Adult hducational Program s in H ousing P rojects  with 
N egro Tenants, 14 Jour. Negro Educ. 353 (1 9 4 5 ); Abrams, The 
Segregation Threat in Housing, 7 Commentary 123 (1 9 4 9 ); Report 
of President’s Committee on Civil Rights, To Secure These Rights 
85-7 (1947).



%V
I

27

*  (,,v,slo^ s worked and fought side by side. Then, white offi- 
■i “ r®;. t?0f C()nim1,SS,0nedI officers, and enlisted men. in seven 
f  1 le>  ^ V.ejl cilvls|ons' were interviewed. At least two of 
£ thes* l ,v,s,1ons vvere composed of men who were predomi- 
J nantly^uthern in background. It is surprising how little
• f 16 reS5?11Se ° f * lc‘se s9uthern men varied from that of men 

% from cftlier parts of the* country.
f  ,, “ T ^ o u t - o f  every three white men admitted that at first 

; J thfy hK , been «*>̂ vorftble to the idea of serving '.alongside 
y ^reCi  PIatoo,ls- r hr^e out of every four said that their 
j  fe.e nig$ toward the Negro soldiers had changed after serving ■ t  with th-ehi m combat ” 7*- . eivlllg. H • • ►
following tip the recommendations of his Committee, Presi- 

' (,eu| Trum^ii-un July, 1948,;issued an Executive Order '.stating:
K l Z Jt A Snrf by decliare4  to be the policy of the President that 
£ there shall be equality-pf treatment and opportunity for all 

> pei sons in the armed services Without regard to race color 
^religiop or national origin. This policy shall be put into 
£ effect as. rapidly as possible, having due regard to the time 
£ required to effectuate arty necessary changes without impair­
in g  efficiency or morale^75 •' . 1

j ** t /. ... .
Experience-with governmental efforts to eliminate segregation 

m anploymertt points consistently to the same conclusion. The 
hai£ Employnjent Practice Committee, established during the war 
to E>fomote Equality of all i»ces in employment, summarizes its 
experience of dive years in its final report:

E  "Tw o "fundamentally; hopeful facts developed out of the 
^ w ork eT ""1 S eff° rtS t0; ° l>e" war ti,,,e opportunities to all
«V ’ , *

1. Employees and workers abandoned discrimination in 
•?, most cases where Government intervened.

“ 2. Once the barriers were down, the workers of varying 
raqes and religions worked together efficiently and

* learned to accept-each other without rancor ” 7(V
------ I------  ; *

% s r m ' <,cpcmiei,ce a" d —
° r- <f  :)98 , » F od - Reg. 4313 (1 3 4 8 ). 

n J ;  rFair-rFniPl:>yment Practice Committee, Final Report viii 
at 3^G 1 °*  \KSCUSSIOn of ^ PC experience in the South see id.



28

The history of state fair employment statutes shows the same 
results. Says a member of the New York State Commission 
Against Discrimination :

“ Critics of fair-employment laws used to claim that long- 
established habits o f discrimination could not.be changed by 
legislation. Their argument has been unmistakably an­
swered today. Nearly four years experience in New York— 
and similar experience in New Jersey, Massachusetts, Con­
necticut. Washington, Oregon, New Mexico and Rhode Is­
land, all of which have passed anti-discrimination legislation 
modeled after the New York law— indicates conclusively that 
wise legislation creates a climate of opinion, in which dis­
crimination tends to disappear.” 77 78

Where private management has seriously undertaken to elim­
inate discrimination in employment it has been successful. The 
American Management Association reports :

“ In the face of many objections to the use of Negro labor, 
there are the incontrovertible evidences of companies, large 
and small, which are hiring qualified Negroes for operations 
requiring varying levels of skill— and doing so with marked 
success . . . .

“ Manv of the plants now making use of colored personnel 
have no previous history of Negro employment . . .
These plants are scattered all over the country . . . .

“ It is evident that, irrespective of a company’s past history 
or its geographical location, Negro workers can be intro­
duced into a plant, or their employment extended, provided 
management is sincerely desirous of taking this course.” ,H

77Simon, Causes and Cure o f  Discrimination, N. Y . Times, May 
25), 15)45), § 0, p. 10 at p. 35. Cf. Ross, Tolerance by Lazo, 15)5 Harp­
er’s Mag. 458 ( 15)47): “Two years of state FEPC’s have done 
more to end job discrimination than fifty years of private agitation, 
good-will conferences and educational campaigning.” See also N. Y. 
State Commission Against Discrimination, 1948 R eport o f  Progress 
11-12; Comment, 50 Yale L. J. 837 (1 9 4 7 ); NoPthrup, Proving  
Ground fo r  Pair E m ploym ent, 4 Commentary 552 (15)47).

78American Management Association, The N egro W orker  9-11 
(15)42). Among many other accounts of successful integration of 
Negro and white workers see Commission on Discrimination in 
Employment, N. Y. State War Council, Breaking Dozvn the Color 
Line, 32 Management Review 174 (1943) ; Newman, A n E xperi­
ment in Industrial D em ocracy, 22 Opportunity 52 (1944) ; Gillmor



29

?. Thus,Our present dayjexperience demonstrates that elimination 
*>* patterns of segregation is not only feasible but is rapidly going 
forward?under government sponsorship. As the American Civil 
^Liberties Union has pointed out in its most recent survey o f the 
.̂ status of civil liberties inf the United States, “ race equality under 
|faw advances steadily.” 7®. And again, “ [t]he gathering momen­
tum of tfre-many-sided movements to extend the rights of Negroes 
Hvas expressed in numerous court cases, legislation, administrative 
jrules, apd; liberalized policies in quasi-public organizations.” 80 
fThe assumption of the majority in I?lossy v. F erg u son  that strict 
Enforcement of the Fourteenth Amendment in accordance with 
its origifial put poses could not be made effective by governmental 
fiction has simply not been borne out by the actual developments, 
ft is in this new atmosphere of progress that this Court should 
f°w  reconsider the issues raised1- by the instant case.
*
2; Patterns of segregation hav.e not tended to produce har- 
y monibus relations between - races, as the Court assumed 
v in Plessy v. Ferguscpi, but have increased tensions and 
1 become progressively destructive of the democratic proc- 
J. ess in. the United States.

>It was the judgment of (he majority in P lessy  v. F ergu son  that 
tl̂ e institution of segregation was better left .alone, that judicial 
iiftei ventibii under the Fourteenth Amendment would accentuate 
tlje difficulties. Clearly implied was the notion that harmonious 
relations would gradually evolve by a process of mutual adjust­
ment. • ;• .
—i?---------- • *.
(presi d c nCof  Sperry Gyroscope Co. j. Can the N egro H old'H is Job?  
National Association for the Advancement of Colored Peonle 
Rulletm 3-4 .(Sept. 1344V; Ross. They Did I, Id  SL Louis, 4 Con,- 
”]$ntary T ( l l )4 7 ) . With regard to the successful integration of 
Nggro and; white workers irt labor unions see Bel Ison, Labor Gains 
On the Coast- 17 Opportunity 142 (11)3!)) ; Sweetland, The C IO  and 
Negro Am erican, 20 Opportunity 21)2 (11)42).

LibertieSi Unbn’ 2nih Ann- ReP- !n  the Shadow
*?Id. at 29.: !



30

Mr. Justice Harlan, with remarkable insight, understood that 
the majority’s hope could not he realized :

“ The present decision, it may well be apprehended, will not 
only stimulate aggressions, more or less brutal and irritat­
ing. upon the admitted rights of colored citizens, but will 
encourage the belief that it is possible, by means of state 
enactments, to defeat the beneficent purposes which the 
people of the United States had in view when they adopted 
the recent amendments of the Constitution . . . .  The. 
destinies of the two races, in this country, are indissolubly 
linked together, and the interests of both require that the 
common government of all shall not permit the seeds of race 
hate to be planted under the sanction of law. What can more 
certainly arouse race hate, what more certainly- create and 
perpetuate a feeling of distrust between these races, than state 
enactments which, in fact, proceed on the ground.that colored 
citizens are so inferior and degraded that they cannot be 
allowed to sit in public coaches occupied by white citizens?" 
(163 U.S. at 560).

Events have proved that Justice Harlan was right and the 
majority of the Court wrong.

The effects of segregation upon the group segregated have 
recently been summarized :

“ Every authority on psychology and sociology is agreed 
that the students subjected to discrimination and segregation 
are profoundly affected by this experience . . . .  Experi­
ence with segregation of Negroes has shown that adjustments 
may take the form of acceptance, avoidance, direct hostility 
and aggression, and indirect or deflected hostility. In seek­
ing self-expression and finding it blocked by the practices of 
a society accepting segregation, the child may express hatred 
or rage which in turn may result in a distortion of normal 
social behavior by the creation of the defense mechanism of 
secrecy. The effects of a dual school system force a sense 
of limitations upon the child, and destroy incentives, produce 
a sense of inferiority, give rise to mechanisms of escape in 
fantasy, and discourage racial self-appreciation.” 81

8:1 Note, HO Yale L. j .  1059, 10G1-2 (1947), citing numerous scien­
tific authorities in support of the statement.



31

•A1

I

"■ ,hl v e C° nsj ^ e,nces fse^ ation »“  ‘ I'e group that maintains .. Ine Segregation have been described by Myrdal :
x- Segregation and discrimination have had ,

w f e m £ k % h a t WtiiteS’t T 1' H° ° kcr T - Washington's fan,:
Vnh ,e ? 7 7  Witl,OUt in there himself. {,‘L  been

1 ierSb° » f  1d -:by n,any white Soother., and Northern observ-

T|e psychological and sociological data showing the effects of- 
segregation uppn both group* and the serious tensions it creates' 
;n d| community at large hive been presented to the Court in
IN ?2S ^ V e m'"1” 1 St^ S v, United States

:-n 'b ‘ Vi Ĉ °'-er Term ’ I9f J) as well as by petitionee in this 
.jj ihere .IS no need tojrovicw these materials here The 

P-ntfwe wish to emphasize'is that a satisfactory adjustment

t  c T I" !  * T  HaS " 0t achieve<1 ‘ hrougb governmental 
f . ‘ . ?  t0'Var<1 segregation.| On the contrary, the continued 

xis ejice of segregation has ^perpetuated and strengthened the 
grave>maladjustments inherent in the system.

4
_ Myida! one of the most discerning students of the problem, 
has pointed this otit, noting that what was merely segregation 
forty ^ears ago is becoming a.CaMc system today: .

whhT earhmSetl'al e5 “ tSf  ° f seSregation are accumulating 
groups.”8* V w gene,atlor| continuously estranging the two

M fylyrdal, A n  American Diltynma G43-4 ( 1 9 4 4 ).

s a r i ly 'i lp T e ^ d i1 h lfer io r itv  o T  J 0* * " 6  V ?  " mt neccs-
( « c i lb e »Pcan in f e c t  „ e ^  be group and that separate
referred to. see the a , „ i i !  ' uJt̂ L ',  1,1 <t'?n to the two briefs

Color, 4 2 ) nepna"  °^Educatio m
(hlM ) |Note, Yale L. j .  478 f m ! / ) 1 D tvt™  W h t,e  R ight 
6« - 80^ yrdal’ 4*  A m erkm l Dilemma (148 ( 11144). See also id. at* T . S

*



32

The process has recently been described by M aclver:
“ Now let us consider more clearly the manner in which 

the conditions that are confirmed or imposed by discrimina­
tion operate to sustain it. The discriminating group starts 
with an advantage. It has greater power, socially and polit­
ically, and usually it has a superior economic position. Thus 
it is enabled to discriminate. By discriminating it cuts the 
other group off from economic and social opportunities. 
The subordination of the lower group gives the upper group 
a new consciousness of its superiority. This psychological 
reinforcement of discrimination is in turn ratified by the 
factual evidences of inferiority that accompany the lack of 
opportunity, by the mean and miserable state of those who 
live and breed in poverty, who suffer constant frustration, 
who have no incentive to improve their lot, and who feel 
themselves to be outcasts of society. Thus discrimination 
evokes both attitudes and modes of life favorable to its per­
petuation, not only in the upper group, but to a considerable 
extent, in the lower group as well. A total tipper caste covt- 
plex, congenial to discrimination, a complex of attitudes, in­
terests, modes of living, and habits of power is developed 
and institutionalized, having as its counterpart a lozver caste 
com p lex  of modes of living, habits of subservience, and cor­
responding attitudes.” 85

Thus the problems created by segregation are not solved by 
themselves or by the natural processes of the community upon 
which it has fastened its hold. Quite the contrary, segregation 
tends to feed upon itself and grow increasingly malignant. It is 
truly a cancer in our society, progressively threatening the health 
and very life of democracy. The real nature of segregation was 
not grasped by the majority in P lcssy  v. F ergu son .

3. This Court has ultimate responsibility, under the Con­
stitution, to review the factual and policy judgment of 
the Texas legislature in this situation.

The Texas Court of Civil Appeals held that it could not recon­
sider the legal merits of segregation as that topic was “ outside 
the judicial function. The people of Texas, through their consti-

8r,Maclver, The M ore P er fec t Union 67-8 (1948).



•;

J-j

hf
*
\ 33

tutional arid;legislative enactments, have determined that policy,
'  ^ ses ° £ whicll* are not subjects of judicial review/ RM50. I

. . . .  C * V
• ®his is svfong. Texas cannot turn into a matter of fact or of 
: lo^l judgment the expressed principle of the federal Constitution
; th$t the rights of citizens of the United States are not dependent 
; uP̂ n race>v creed, or colori No subject is more fit foi* judicial 
’• ref?ew’ an^ £trict judicial review, than conduct which strikes at 

the heart of the democratic process.- Mr. Justice Stone, in United 
States v. Carotene Products, Co., 304 U.S. 144, 153 (1938), sug-
f f j S t,lat flose scrutiny is^necessary in “ the review o f statutes 

V directed at .particular religious . . .  or national Gr
racial minorities"; for the prejudice against discrete and insular 

; mr̂ orit,f s be a special condition, which tends seriously to
curtad the pperation of thofe political processes ordinarily to be 

. 16 fd upon to protect .n ineties, and which may call for corre- 
spQfid.ngly more searching Judicial inquiry." And see W e s t  V ir ­
ginal State.B-d. v. B arnett, 3 19 U .S . 624, 638 (1 9 4 3 )

th e institution of segrega|ion is designed to maintain the N e «ro  
T l ” '  3 |)0S“ '.0n ° [  '"feriovity. It  drastically fetards Ids educa-
I t  ? ' •  T 11 POMtica1 ‘ '^ lop m en t and prevents him from 

fc.smg Ins rightful powers as a Citizen. It creates maladjust­
ments and tensions which sap the vitality of our society, M „re-

verv e I* t0, ? r lf> ° pera^ S t0 stre" g ‘ h«> and accentuate the
' s u b le t  3 Wjl!ch need to be-combatted. T o  this extent it is not

o l  ' o r T  7  T  n° rma' m ethods:o f ‘ be' political 
oqess. Op the other hand; judicial action to wipe out segrern-

hon,:has proved entirely practical and effective. : In the - ligh t^ f 
h ^ c i r c u n ^ n c e s ,  not knofvn to or recognized by the n u ^ n t y  

■ V ’ Ferguson ,the Court should not hesitate to strike down
• e practice.as plainly violatfve o f the Fourteenth Amendment’s 
guarantee of.equal protection;



III.

SE G R EG ATIO N  SH O U LD  N O T  BE E X T E N D E D  TO  
E D U C A T IO N .

1. The precedents do not uphold segregated education.

P lessy  v. F erg u son  involved segregation on common carriers 
and carefully did not endorse segregation generally. It was urged 
in argument that if segregation on carriers were' valid, states 
might require white and colored persons to use different sides of 
the street, or paint their house or business signs different colors, 
on the ground that one side of the street or one color was as good 
as another. Such action, the Court said, would be invalid, holding 
that even segregation must be “ reasonable.” 163 U.S. at 550.

Though this Court has held that segregation of whites and 
Negroes in different blocks in a city is unreasonable, Buchanan  v. 
IV arIcy, 245 U.S. 60 ( 1917), it has never squarely faced the ques­
tion whether segregation in education is unreasonable. If segre­
gation laws are to be permitted in the casual affairs of life, such 
as i iding on street-cars, but are to be invalidated when applied 
to such fundamental matters as establishing a home, the question 
becomes whether the undisputed right to equal education falls 
within the first category or the second.

This is not to say that the problem of the validity of segrega­
tion in education has never been referred to in the opinions of 
this Com t, but rather that it has never been seriously argued or 
deliberately considered. In B erea  C ollege  v. K en tu ck y , 211 U.S. 
45 (1908), the issue was the validity of a Kentucky statute for­
bidding the teaching of Negroes and whites in the same college. 
The sole question raised and decided was that such a statute was 
not a violation o f due process as an interference Vvith the prop- 
erty rights of the educational corporation. The question of the 
rights of individuals was carefully put aside (id . at 54) and 
the equal protection problem was not involved. In C um m inq  v. 
R ich m on d  C ou n ty  B d., 175 U.S. 528, 543 (1899), the Court in 
so many words excluded the legality of segregation in education 
from its decision. Yet in G on g  L u m  v. R ice , 275 U.S. 78 ( 1927),

34

'1

"l ■ j

.4



35
*

■J

\1

, H
X v ;

i •

: S r . U ' s i ’ s - c l r  i "  •• '* « « » - . . .  ™  ,,,<
: b a le  prob, ^  th“ ‘  ' ! *
: wa|. neither.: involved i„  J  >

•■•* t : ™  ^ is co,,sf utio^ -

\ had*been "S ta in e d  bv } ’ m  - “ T  that segregated education• sustained by oundecisions.” But the mcec 1 1 ,
nothin fact considered the precise point and that n”  t r

.: inv| ved in- tile G am es  case* which decided only whether aV Ir-
lcuar ypevdf separation iij education was “ equal “ Nr 1 •

Stpuel v. A d  o f  Recants ?3 3? 7 r c n ,  Nor does/igksn 0 , a y regents, 444 U.S. 631, and 333 l/ S  147
add anything on thfe point ’ ' 4 /> • -v •

2. lender the rule of reason created by the precedent
Ration is hnreasonable.f 7 pWedents? SG8 ^

If we accept arguendo the- P lcsrv  case with 
tween “ reasonable” and “ unreasonable” [ , T  <1,St,nct.,0n he“
niusf place legrefrated erhi V • ypes of. segregation, weVI cxrr, aegicgated education m the catecro,-  ̂ nr ' «<sonable ”  Sefn-eo-nmn < i . categoiy of the “ unrea-

¥  et,ated transportation is at lea?(■ d  ci, * 1■ tion;> and it; is fairly S , least oi shorter dura-

alternatives m :.transportation|re hTfact em r.^Se' T T ' ” ’tion has more severe i  , 1 ■ 'Segregated educa-
elfects. . * * * * * *
fact to secure hr police that^uaHtv I *  »"

Rights reported : f  1 tsl(lent s Commutee on Civil

. as *<> <*•- p« m4  serv.
|as not been obeyed £
$nce in quality between the erl„,~,f inaiked differ-
White children and N egro  d,i WrCn In’ ? ' (?|,R0rt,,n,li“  offered >-l___ : ^ iqc im ciien  m (lie separate schools.” 80. t— — ; I , v* v »• v. i n /i /i o,

S Co™nilttee on Civil Rights, To Secure



36

Even beyond this, however, there is compelling reason— a rea­
son which goes to the heart of democratic principles of educa­
tion— for not extending P lessy  v. F ergu son  to the field of educa­
tion. This may be briefly stated :

( 1 ) A  democratic society, like any other, seeks: to transmit 
its cultural heritage, traditions and aspirations from generation 
to generation.87 W hile there are many instruments (or  transmis­
sion of culture— the family, the church, business institutions, 
political and social groups and the schools88— in our society the 
school seems to have emerged as the most important.80 This was 
to be expected from the fact that in a democracy citizens from 
every group, no matter what their social or economic status or 
their religious or ethnic origins, are expected to participate widely 
in the making o f  important public decisions. The public school, 
unlike the family and other narrower institutions, has thus be­
come the logical agency for giving to all people that broad back­
ground of attitudes and skills which should enable them to func­
tion effectively as participants in a democracy.

Indeed, this consideration lay behind the whole movement 
for free compulsory public education. Thus Jefferson stated: 
“ Even under the best forms [of government] those intrusted with 
power have, in time and by slow operations, perverted it into 
tyranny; and it is believed that the most effectual means of pre­
venting this would be to illuminate, so far as practicable, the 
minds of the people at large . . . .” 00 Furthermore, Horace 
Mann and many others who fought for free public education 
valued it as an instrument for eliminating the class structure 
in education, namely the segregation of the rich from the poor, 
which bred undemocratic attitudes and habits of life. By the 
same token, opponents of free public education were frequently

87P>enedict, Transmitting our Democratic Heritage in the Schools, 
48 Am. Jour. Sociol. 722 (1943), reprinted in Lee and Lee, Social 
Problem s in Am erica  297 (1949). ;

88Myers and Williams, Education in a D em ocracy  164-227 (1942).
8nMerriam, The M aking o f  Citizens 88-89, 211-2, 273-4 (1931).
00Quoted in Curti, The Social Ideas o f  Americcm Educators 3 

(1935).



s

K*
y

; tho^ who Ueheved in government by the elite and had little faith 
' 1,1 the full development of democracy.01

(| ) Just as the principle of free public education' was the 
. first| important step in realizing democratic objectives through 
v ourjeducatioi>al system, ŝ r completely non-segregated. public 
■i ecIû tion  is an essential element in reaching that goal. If children 
. hav4 race superiority taught them as infants, we ’ cannot 
; exp^tt them\li£htly to toss it’aside in later life. .The answer lies 
: not, ^however,'in simply indoctrinating them with the principle 

of racial equality. Modern educational theory, formulated in an­
swer: to the need of our society for self-reliant individuals; volun­
tarily cooperating with otherjs to meet the everchanging scene in 
our ^dynamic ^civilization,02 ^postulates a more thoroughgoing 
solution. Apcprding to this Theory, education “ is a continuous 
process from, the beginning to the end of life” , and it is a “ con- 
tinuops reconstruction of e?qperience.” 03 That is to say, each 

••new ^hing leiarfied is assimilated to some previous thing learned, 
■and the new-ip in part conditioned by the old. “ Education in 
America must .’be education |pr democracy. If education is life 
and growth, : then it must b$ life within a social group 
Schools must be democratic ^communities wherein children live 
natural, democratic lives with their companions and grow into 

■ adulthood wiilv good citizenship a part of their experience.” 04

(3 i  This, ihodern educational theory of learning by doing, 
clearly implie^ the necessity ©f non-segregated education. The
principle of equality of opportunity regardless of race or creed,
--------------  ‘;4

01/<£ at l()l-g(k). |
: 02s ê RenedW ap. cit. suprek note 87; Kallen, The Education o f  
Free M en  cc. 40 11, 12, 15 (lfS4‘J ) ; Kilpatrick (E d .), The 
ttonal thronHerr c. 2 (1933 ) ; Tire President’s Commission of Higher 
iulucalion, 1 H igher Education',for American Dem ocracy  5-9, 101-2 
(1947); 2 idA3b 9 ; Brubacher,^M odern Philosophies o f  Education 
c. 14 (*1939). f t

»^Fmsier and .Armentrout, A n Introduction to Education 3l 33 
(3d ed. 1933)... i x
_ 04/rfT; at 32. ; See also Brubacher, op. cit. supra note 92 at 330-1 • 
Deweys Dem ocracy and Education (19 If,) ; Mayo, The Human P ro b ­
lems df an Industrial Civilization (1 9 3 3 ); Lewin, Resolvinq Social 
Conflicts c. 5 (1948). if ‘



38

so much a part of our American tradition, can be fully achieved . 
only if this element in our cultural heritage is kept alive and 
allowed to grow. The school, as has been shown, is the most 
important institution through which this heritage can be trans­
mitted. But, as has likewise been made clear, proper teaching ? 
of the principle of equality of opportunity requires more than 
mere inculcation of the democratic ideal. W hat is essential is 
the opportunity, at least in the school, to practice it. This requires 
that the school make possible continuous actual experience of ' 
harmonious cooperation between members of various ethnic and 
religious groups and thus produce attitudes of tolerance and 
mutual sharing that will continue in later life.05 In the segre- . 
gated school, this desirable environment does not exist. The 
most important instrument for teaching democracy to all people 
is thus rendered impotent.

Even for those who believe in the policy behind P lcssy  v. Per- ' 
guson , that it is impractical to eliminate segregation in all areas 
of our culture at once, education has usually been the logical step 
for achieving our ideal of true equality. Since segregated educa­
tion cannot be effective education for equality, the principle <>f 
P lessy  v. F erg u son  should not be extended to the schools.

IV .

EQUAL FACILITIES FOR LEGAL E D U C ATIO N  HAVE 
N O T  IN  FAC T BEEN OFFERED TO  S W E A TT  AND, 
INDEED, SEGREGATED LEGAL E D U C ATIO N  CANNO T . 
U ND ER A N Y  CIRCUMSTANCES AFFORD EQUAl 
FACILITIES. HENCE PETIT IO N E R  HAS BEEN DENIED 
EQUAL PR O TE C TIO N  EVEN W IT H IN  TH E BROADEST 
A P P L IC A T IO N  OF PLESSY V. FERGUSON.

Up to this point we have challenged the legality of segregai'n-n. 
generally, and particularly in education. But it is perhaps no • 
necessary to go so far. Petitioner wants to go to the Universe \

or,See Knllen. The Fducation o f Free M en  182-4 ct passim ( HUM1 
Maclver, Flic M ore P erfect Union c. 9 (1!)48) ; Ncwlon, Fnhicnti-'" • . 
fo r  Dem ocracy in Our Time 92-103 (1939).



39

.*r

. >

s f
V I

r<
f

■ftt
v
>
*4

*
*

f  % ■
*»
rt<r

l

. •* ; / 
of Te^as Law School. The courts u '■
the segregated school is “ separate but equal” a n ^  t h T l1' ^ !  ‘ 'lat 
imate, We contend that Texas his nri i r ’ t-lerefore/ Ie8'»t-
gated.’ law school for rNegroes which is ”  T  Cr̂ ated a se£'*e- 
schooj, - and indeed that it is • s .-equal to ;its white law
school to afford opportunities * *
unseg^ated school. }  ** education, equal to an

Wer a ,e  sa fe,r w i t h in  tire boundaries 
nort -Tn ■ y  V- I ^becomes ou r d irect s „ „

0 P°t J  "  7 ,n terP re*?tion , that case requ ires enuahtv i f  ‘
• gatlorti «?. to be permitted, and w e contend that T  ■ ^

1  could not possib ly be Q u a lit y  here. 18 " 0t and

I  c - d J c a S a r  never S t T T n  'T -  ^ UCat,'° n ^ d s '- e q u a .  
i case. 305 U S . 3^7 n 9381 1 7 th’? C° Urt' 111 *he
l  Negroes ‘ in Missouri, ihd th e 'c o iu -r ^ h e -^ f^ 1 educati° n offered 
7 hold otily as it did ’ lei e ôre- was required to

l T J ... w' M04«V;- vi • • -■  ̂tate- f ’1 the S ipu e l case 332 17 9  \

t l T ^ L 7 i0 n ty  * * " "  ,hat " ,e 'll*estion w h e t h e r " ™  ’ 
f a t  :  WOS ° r Cf " d be was not properly presented

?.«3 u M ’147 °i 5? fU4 ‘eirCT ,<,er 1 SUb n ° W' F 'SKer V'
.Jbretlirerif on the p 'rw edukM w  R" t'7 Jge; disagreed with his 
ewe have: here. Mr Justice Rnrt f lus reached the question
?tr<|i,iredlis. “equality in I  , gC ° bserved ‘ hat the equality• - . y   ̂ inct, not in leeal fiction n t  ■ i
*c|>orate;1a,w school coultf he established e ls e  t 0b v ,m '-sly no 
Able of gliding petitioner i  . elsewhere overnight cap-

k S S  K C E S ft .fS u ’ s t " ‘  “ •* "•

f ....« ^ ^ E ^ y r n K S &  5 3  i"::-;:



♦

Its lack of the attributes of equality is shown particularly by the 
testimony of former Dean Earl Harrison of the University of 
Pennsylvania Law School (R . 216-23) and Professor Malcolm 
Sharp of the University of Chicago Law School (R .. 341-51).

Petitioner’s right to a completely equal legal education is not 
met if at some future time some other Negro might be able to 
get equal education in Texas. The decisions establish that peti­
tioner’s right is “ a personal one.” State o f M issou ri e x  rel. Gaines 
v. Canada, 305 U. S. 337, 351 (1938). “ The equal protection 
clause of the United States Constitution does not refer to rights 
of the Negro race, the Caucasion race, or any other race, but 
to the rights o f individuals.” P eres  v. Sharp, 32 Cal. 2d 711, 
716, 198 P. 2d 17, 20 (1948). See also M cC a b e  v. A tch ison , 
T opeka  &  Santa. F e, 235 U.S. 151 (1914).

The application o f this familiar principle means that Texas 
must give Sweatt the opportunity for education “ in conformity 
with the equal protection clause of the Fourteenth Amendment 
and provide it as soon as it does for applicants of any other 
group.” Sipuel v. Bd. o f R eg en ts , 332 U.S. 631, 633 (1948). 
Sweatt cannot possibly obtain the equal education to which he 
is entitled in the special institution set up under the pressure of 
this case.

This judgment requires us to compare law schools, a very 
special kind of educational comparison. Grade schools and high 
schools perhaps can be compared on the basis of physical plant, 
or teachers’ salaries, or types of plumbing, or number of students 
in the class, or variety of courses offered;96 but these mechanical 
approaches to legal education tell only a partial story;. The neces­
sary inequality of Texas (colored) is accentuated by;factors pecu­
liar to legal education and the standards applicable to grade schools 
or high schools have little relevance in such comparison. Some 
of the inequalities in the instant case are also the product of the

°'iIrnr a collection of cases decided for and against Negroes in 
terms of size of school, value of school property, location of school, 
length of term, number of teachers, etc., see 103 A.L.R. 713. bor 
a similar approach by Texas in this case, see R. 78.

40



\extremely small size of the School which Texas would require 
Sweactt to attend (R . 7 7 ) .

(1|) Faculty size is not the exclusive measure of a law school, 
certainly not-where the number of teachers is reasonably large! 

:.But f^e sizeyhas great relevance when it is very small. 'Texas 
Tont^nplates^a faculty of only four at Texas (colored) (R ' 454) 
.•but ipts 28 - faculty members for the current year at Texas 
.(whife).07 Although fewer faculty members'may. be able to give 
;fewe^-students-at the Negro school a greater proportion of time,
. 't w ij be the.'-time of a jack-6f-all-trades— not a specialist.- Nor 
will the studeht have the benefit of the different faculty viewpoints 
•so beneficial to; the law studeiit
;; 5 ;  . •. > <
' ( 2)  Apa^t .from the faculty size, faculty quality at Texas
•.(colofed) wigj hot be equal, .fl'he primary and secondary school 
•rases *ci ted a|ove compare teachers as so many .interchangeable 
units pf educational machinery^Assuming arguendo the validity of 
that approadhto grade schools* law teachers are not thus fungible, 
justice Jackson put it well when lie said, “ Nothing, not even an 
alluripg new Curriculum, can it a ke the place-of a sagacious and 
imaginative teacher. He can impart a. sense of the- movement and
function o f la>v'which is needed as part of the study of each field 
of law-.’’08 ’ r- .;
**• . / .  •

Ver̂ y srnalh schools lack the inducements of those somewhat
largeiito obtain professors o f equal distinction. There is little 
possibility of encountering a number of interested and interesting 
Students in sd small a school., l ienee, the range, of educational 
experimentation desired by the able teacher is virtually non-exis- 
t-ent. ^-Development of the teacher’s professional reputation turns 
upon fis achievement of recognition as an authority in a special 
--------£—  -4 - ..

P nm ?nC\iatTiri;'of American Law Schools, Teachers’ D irectory  2!) 
•H* 4’r?,V '- mim,\er vvas 21 this record was made ( R. 309).
Lhe Bulletin of the Texas State University for Negroes, School of 
Law 4; (1949-50) lists six faculty members, including the librarian 
at 1 exas (colored). It does not appear whether these are full-time 
nr part-time faculty members. V
.. "8JaCkson, T h e Product o f  Our Present-D ay Lazo Schools, 9 Am
Law School Rev. 370, 375 (1939.).



*

field. The small library and the elimination of an opportunity 
for sufficient specialization keeps the best prospective teachers—
.— usually— from staying in the smallest schools if they go to them 
at all.09 The University of Texas has many professors with 
names great in legal education. It is beyond belief that Texas 
(colored) can at any time in the predictable future acquire the 
services o f their equals. Certainly it will not be done within a 
period of time meaningful to Sweatt.

(3 ) A minimal faculty results in minimal course offerings at 
the colored school. Well-staffed Texas (white) offered 75 courses 
for the two semesters of the current academic -• year; Texas 
(colored) can offer no such variety.100

(4 ) All these inequalities are accentuated by the lack of other 
facilities inevitably resulting from the exorbitant cost of attempt­
ing to furnish duplicate opportunities. This is well exemplified 
by differences in the library, the heart of the modern law school. 
The Austin School has 65,000 volumes of which 30,000 to 35,000 
are not duplicates (R . 455-6). Texas is obtaining for its colored 
school 10,000 volumes, the bare minimum permitted by the Amer­
ican Law School Association (R . 456).101 On the basis of pre-war 
price standards it would cost the state of Texas something over 
$100,000 to obtain a library for the colored school equivalent in 
size to the non-duplicate list of the white school.102 This- is 
$100,000 which Texas shows no present intention of spending,

’“'These problems are well discussed by Dean B. F. Boyer, Uni­
versity of Kansas City Law School, The Smaller Laav Schools, 9 Am. 
Law School Rev. 1499 (1942). '

’ “"University of Texas L w  School Catalogue 2o et seq. (Aug. 1. 
1948). The Bulletin of the Texas State University for Negroes. 
supra note 97 at 14-17. lists 39 courses for the two semesters. In 
making this calculation we have taken the course headings, as listed 
in the catalogues, as constituting a “course."

101The Bulletin of the Texas State University for Negroes, supra 
note 97 at 5. states that the library of Texas (colored) now contains 
23.000 volumes. The number of duplicates does not appear.

1,1-The calculation is based on Moylan. Selected List o f  Books . for 
the Small Laic School Library, 9 Am. L w  School Rev. 469 ( 1939). 
and the testimony of Hargraves, librarian of the University of Tcx.o 
law school (R. 142).

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and is a practical matter onl| a large staff o f diligent librarians 
rou!(£ find such'a collection o f  books in any short, time. Without 

: suchja library,-the kind and Quality of research experience given
Sweitt will he far inferior to that given the white citizens of

. Tex£$. i i: .
s v•j, • • I

( >) bex^s (colored) giv£s its graduates an economic oppor­
tunity inferior to that of the graduates of the University at Austin, 
tn addition tetany economic^ difficulties Sweatt .may meet as a 
: he wquld acquire an unequal professional standing by grad-'
’ uatidft from 3; segregated law'School. Professional careers are seri­
ouslŷ ’affected-by the repute pi which the school is held by the 

: profession at large. Moreover, Texas (colored) is a raw, new in-' 
•; stitufion not Only without prestige but without alumni. Texas thus 
deprives SwCaft of placement Opportunities given to the graduates 

-of the old, established school.*08 Assistance of this kind is most 
yimportant in.; the present situation o f the Texas bar for ,:-in the’ 
worc^ of the Assistant Dean; of Texas (w hite): “ It is obviOus 
that the existing firms will not be able to absorb the great number 
of m^n being;graduated from;'.the law schools in Texas.” 104 The 
placement efforts of 1 exas (white) based, as they must be, upon 

• the loyalty o f  alumni and the established reputation o f the institu­
tion Emphasize, the inequality, o f opportunity Texas would give 
Sweatt. • >

(6;) Work.'on a law review is considered a desirable part of the 
training o f good law students. The University at Austin has 
an excellent review on which its students rnay aspire to, seiWe. 
Texag (colored) cannot have:'a law review for lack of a sufficient 
number of tbfi'notch student^ to man it. (Cf. R 105 310-3
M 7 . f  ^  *

■
Associate Dean James P. -Gifford, Columbia University :School 

-.of LaW, in an. extensive report on placement method observed,. “ Prac­
tically all schools use their alumni as sources of information about 
openings.” 9-Am. Law School.Rev. 1063. 1066 (1941). Dean Gif­
ford .also discussed the value df moot 'courts, dinners, and speeches 
as pl^yement aids. ’

104l2 Texas.-IJar Journal 208 f 1949).
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(7 ) The training of moot court work depends in great mean- 
lire on the quality of competition among groups of students. iVbw.t 
court activities at Austin are based on such competition (R . HU) 
Substantial numbers are necessary to create satisfactory competi 
tive groups.

(8 ) Finally, that part of a legal education which results from 
doing lawyer’s work in a legal aid clinic requires for successful 
operation a sufficient number of competent students to manage 
and supervise the novices.1011

And yet, if by some miracle Texas could surmount all these 
obstacles, it would still not create an equal opportunity for legal 
education. If it assembled a staff of the greatest teachers in Amer­
ica ; if it spent a large sum to create an equal library;.if it afforded 
equal placement opportunities for every graduate; if it overcame 
every other difficulty, Texas (colored) would still not be equal. 
For the segregated plan misses the whole purpose o f a modern 
law school.

The lawyer, to meet the responsibilities of his profession, must 
have a vital sense of the culture of the community in which lie 
lives and works. “ Lawyers are perpetually engaged in trying to 
anticipate, prevent, mediate, settle or win human disagreements 
involving alleged rights recognized at law. Their thinking, plan­
ning and action are framed and limited by what they understand 
to be the prevailing principles and doctrines of law— what the 
judges, or legislatures have decided in like situations before or, 
more accurately, what they guess judges or legislatures would 
decide in like situations tomorrow.” * 100 The knowledge required 
for these tasks can in part be obtained from books; but a major 
share must come from intimate knowledge of the ways of thought 
o f the community. “ Tie (the lawyer) is literally lost unless he

10r,For a description of the work of the Texas (white) legal aid 
program see Patterson, The Legal Aid Clinic, 21 Tex. L. Rev. 423 
420-9 (1943). The Bulletin of the Texas State University for 
Negroes, supra  ̂note 97 at 7, states that a legal aid clinic has been 
established at Texas (colored).

100Rostow, Liberal Education and the Laws: Preparing Lawyers for  
Their W ork in Our Society, 35 A.B.A. Jour. 626, 628 (1949).

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f . "  4 S e ‘ hH aWves, interests* (and weaknesses) of those ̂  with 

^ “X ^ ’F Whe‘her “  Wit ’eSSeS’ 'leKOtiat0rS- Clients,

r ,,c*ce Jt isiimportant that .{he lawyer receive hi, ft- • • 
ll'.- group with Which he is toSlive and to practice I , / ' " " ? -  
of 1 railing in,- legal ethics, which is one part of this 
proceŝ , LloydJOarrison ha., c u r v e d : ‘ ^ n,n*

!  t& ' sfudel; f e T ’to  ' ' ‘{ f t  a" d P1̂ 5"*  fields

i fS lfe H llI? = 3
i Ip s p & s s s ii

ai|j characttji shine the most luminously.” 108 ^

: The|student: at Texas (white) will hnhihe the lessons' not
■ mly o f character, hut of the knowledge of human beings fr6m a
p ,aT r portP '  of that "cross-section of his contemporaries"

' c^ 'cl anyjstndent at a segregated school. In classifying the
■ indents at the,two schools by the test of color, Texas effectively 
t immates much o f the cross-fertilization of ideas. When a laW 
Student,,s forced, to study and talk the shop talk q {  justice and 
equity with a segregated handful, he is circumscribed in the effort
fe'T 1«Srf %ny  ?'e?1 u,lderstancl"ljt of justice or equity. At Texas 
(colore^) Sweaty will lose the (opportunity of exchanging ideas

t -com plete .variety of felfcw students. He will thus lose
ius icei ef 0ff ? ntm,ty t0  ^ sp rb  those received traditions of 
justice-^nd fairness on which Texas law, like the rest of the Anglo*

i07/c/.'at G29. 
108G a

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American law, is based.100 The attorney uncultivated in the 
traditions of justice and fairness is handicapped in advising clients 
or in dealing with attorneys and judges who are a part of the 
broad stream of Texas jurisprudence deepened as a result of the 
years of group association at the Austin school.

This lack of opportunity for full discussion with a group of 
completely divergent views has other and more technical aspects. 
Classes themselves must be large enough for presentation and 
discussion of divergencies. This does not mean that classes must 
be large in an absolute sense, but Texas (colored) cannot measure 
up for two reasons: (a ) there must be at least enough students 
to make a sample large enough to include a few good ones; and 
(b ) there must be in the group a divergency of points of view. 
The method of legal education depends entirely upon that thrust 
and parry of diverse ideas which cannot exist among a handful 
o f segregated students.

If Texas denies Sweatt an education which is in fact com­
pletely equal, it also denies him an opportunity to develop the 
respect for law essential to the lawyer. Texas cannot make its 
colored school equal in the eyes of the law without contradicting 
plain facts. Were such a legal fiction adopted—-were Sweatt 
compelled to live with such an assumption— he would be living 
falsely. Three years of such living must tend to deprive him 
of those attributes characteristic of the young lawyer fresh from 
school, “ the humility and perspective, the courage and disinter­
estedness, the devotion to honest craftsmanship and, above all, 
the deep feeling that the government should serve all and serve 
justly.” 110

_ 109“The common law grew up as a taught tradition in the Inns of 
Court on the basis of the tradition of the courts. It was a tauglil 
tradition handed down from lawyer to apprentice from the seven­
teenth centry and is now coming to be a taught tradition of academic 
law school.” Pound, Social Control Through Law  50 (1942). Sec 
Rules o f  the State Bar o f  Texas, Art. 3, § 1, 1 Tex. Stat. 696 (Ver­
non 1947) and Rule 1, T exas Rules o f  Cizhl Procedure (Vernon 
1942).

110Jackson, The P roduct o f  O'Ur Present-D ay Law Schools, 9 Am. 
Law School Rev. 370, 371 (1939).

46 ■:



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T? , al1 th? s* elements of Inequality there must he added the
T *  r ° ^ : deVel° Ped in f aHier sections of this brief,, and in 
olhej briefs filed with the Court— that segregated legal education

• ,7 T r  " 'lth,eVery f° rm Pf segregation, perverts and distorts 
t le Healthy development of Human personality in the group sub-

: jected to such'discrimination! •’ *•* ••• y '■
■■ " ’ escapable inequalityjof Texas (colored) lies in the fact-

t fegal education is not a mere matter of cubic feet of classroom' 
) Spafj* or th<=-possession of a few thousand books, or the presence 
'of four lawyers recently become teachers. If, instead, legal edu­
cation is something alive and vital, if the. measure is not cubic 

.feet Of air s p c c  but the intellectual atmosphere within the walls • 
if law teachers are appraised as individual men of varying degrees 
o talent, if education is in large part ass. elation, if research and 

.prac^ce are part of the job oftlegal training, if segregation in law 
school warps apd corrupts the mind a. . personality of man— if 
.any of these things is true, th in  certainly this Texas Negro insti-
W th|lav^mT kery ° f ,Cgal e<̂ UCation a,,d ° f , e q u a l  protection

%
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S CONCLUSION.i? *
• Evjh-y branch of the government, in its own way, lias the duty 

m<̂ tlng f  challenge of ourjtimes that Democracy is unreal a
prom^e without fulfillment, fliis  requires more than words It ' 
requires that we bring our practices up to our pretensions.' The 
account y enaral Bedell Smith of his experiences as Ambassador 
°  ^ S,a; afT?Prmted in the! N e w  T im es, dealt at-some
eng -wit t the publication A nierika , which our country distributes 
m Russia. In the T im es  Gerferal Smith reprinted two pictures 
from flm ertk a  as samples of bur message to Moscow. One of '. 
lose pictures was of an unsegregated school room. Is this rcaUv 

our mjssage »  (he world, or must we send a postscript that there 
is a special exception for young men studying the Constitution 
of the^Jmted States in the State of Texas ? The Texas legislature i 
has nd.authority to answer that question for the rest of America 
I he equal protection clause has answered it



ft '■ *■

We respectfully submit that the judgment below should be 
reversed.

48

T h o m a s  I. E m e r so n  
Jo h n  P. F r a n k  
A l e x a n d e r  H . F rey  
E r w in  N. G r isw o l d  
R obert  H a l e  
H aro ld  H a v ig h u r s t  
E d w a r d  L evi

F or t h e  C o m m it t e e  of  L a w  
T e a c h e r s  A g a in s t  S e g r e g a t io n  
in  L e g a l  E d u c a t io n

January, 1950.



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| 'i- f  a p p e n d i x  a .

0f Law T?achers Against Segregation in Legal 
dltcation was formed for the purpose of expressing the convic-

of mariy,law teachers tjiat segregation in legal education is 
unconstitutional. The menjbers of the Committee support the 
general legal positions taken in this brief, but responsibility for 
the (detailed;:argument rests'exclusively with the signers. The 
merfjbers of the Committee are as follows:

P^Cck4mor̂  J.F- Cambridge. Mass.* r-â i ?̂ lpnian •'■Andrews, Syracuse N Y 
Sg ^Uecrbachi’. Madison, W,s ’ Ŷ’
HdnrvdW Minneapolis, Minn. '
R^irdT’ na|iâ tmf’ Berkeley, Calif..: Jt” B«keley, Calif Hil Ŝ u!?hcr- Madison, Wis. Fr̂ enck K. &etrtei. Lincoln, Neb.

r: B'B'S* Washington, D. C. ’• 
chT i X‘ rBlô crL ^ cw Haven, Conn » WflfifmLwB r̂ -4r'• New York, N. Y. 
IWm Ann Arbor, Mich "^ I ]? R- Bookstaver, Washington D C Wihiam J Br̂ ckclbank. Moscow! IdaQo 
???b S• Browp, New Haven. Conn “ Charles Bunn, iMaUison, Wis 
ri0*^^ Bnur5,c* Chicago. 111.£!?J& M TByse> pJriiadefphia, Pa.

V  Citf' ■Chicago, IU.
« Cr-Ief?ir Cambridge, Mass. 

FliŜ CI Si CbcCk̂  p‘«sburgh. Pa.
HnIL.?Hk>'|N<iW ;Haven- Conn.Horijer H Clark. Jr.. Missoula. Mont 
Aniftew V Clements. Albany. N. Y ’
b,l^r'rCf ey' Ano Arbor, Mich. ’ '*•/“I* s Cohen, Lincoln, Neb 
Chiles E. Corker/,Stanford, Calif.
H»£SSU' r̂yrâ 'VNew Haven, Conn. '• Hattj M. Cross, Seattle, Wash
tt:.YerC% .Washington, D. C.
i 'lT p 9c Bktvw, .'Bloomington, Ind. JohO«P. Dawson, Ann Arbor. Mich

Hn Desskn, New Haven. Conn. ,
r1 nw/ cyh 9ncmnati’ ° hioi % DcWitt, Madison. Wis.

Air'll ^KDu,8anr Washington, D. C. r i ll,PnvPlI"l1amr. Ijlew York, N Y  
hdg«i N Ourfei-i Ann Arbor, Mich 
Richtrd W Effland Madison, Wis Mor̂ mer Eisner,- Newark, N J 
Thoaias I. Emerson; New Haven Conn
SamS M pSt5P;-IA.I,n Arbor. Mich. 7Samflfl M. Fahr, . Iowa City, Iowa

J rfc«an- JPadtington, D. C *B. Feinstnger. Madison, Wis. -
V; p nlecV-; Cambridge, Mass. -••VincajtE. Fiordalisi, Newark N I •
fcn'rt Bo,kcrti 1 Columbus. Ohio J' '  I'r"tf r̂l Foster, Narrnan, Okla.
iVitcfifl'l Btank N’ew- Haven. Conn.Frank 111  ̂ New Orleans, La.
Vi ' 3P. A- Freeman,-, Irhaca. N. Y. :
R d^FCrFHh Ft$X’: pfl'lade|phia. Pa.( Jr W 'pr?jhsV? 90,13lnet°n, Ind., 1 P- Fulda, Nfcwtirk, N J
fJtnVM c rTTJJnuA,boquerque' N- M.“(»f,ntT • i ' Gav|t.-̂ oomington. Ind.Net/ Haven, Conn 
t ^bridge. Mass,t’ ■ • Goble>iLTrhana, III.
iwioVN. C.nswoM, Cambridge, Massi..

P;..
XtC!’v

David Haber, New Haven, Conn.Robert L. Hale, New York, N Y 
Fowler V. Harper. New Haven', Cttnn George S. Harris, Newark, N. J’
Alfred Harsch, Seattle. Wash. c
lienr7j *£■ b̂art> Jr*> Cambridge, Mass. Harold C. Havtghurst, Chicago, 111 
Joseph W. Hawley, Seattle. Wash. 'Paul R. Hays, New York, N Y '
C. Willard Heckel, Newark, N J 
Samuel M. Hesson, Albany. N. Y ’ i Elmer E. Hilpert. Sc. Louis, Mo.
John O. Honnold, Philadelphia. Pa.‘ Harvey S. Hoshour, Albuquerque* N. M, Leo A. Huard, Washington, D. C.
Robert M. Hunter, Columbus, Ohio.
J. Willard Hurst, Madison, Wis. •
Jacob D. Hyman, Buffalo, N. Y.
Louis L. Jaffe, Buffalo, N. Y. t
Howard Jenkins. Jr., Washington! D. C. 
Richard W. Jennings,- Berkeley, Calif. 
George M. Johnson, Washington, D. C.' Robert H. Jones, Albany, N. Y. ••
Harry Kalven, Chicago, 111.
Benjamin Kaplan, Cambridge. Mass.- 
Wilbur G. Katz, Chicago, III.
Paul G. Kauper. Ann Arbor, Mich“.
Frank Kennedy, Iowa City, Iowa •
Friedrich Kessler, New Haven. Conn. Ralph E. Kharas, Syracuse, N. Y.
Spencer Kimball, Salt Lake City. Utah. 
Stanley V. Kinyon, Minneapolis. Mipn. 
David R. Kochery, Kansas City, Mo. ' /
Robert F. Koretz, Syracuse, N. Y.
Heinrich Kronstein, Washington, t>. C. Phillip B. Kurland, Bloomington, Ind. 
Harold D. Lasswell, New Haven, Cohn. 
Franklin C. Latcham. Cleveland, Ohio 
Norman D. Lattin. Cleveland, Ohio ' Charles W. Leaphart, Missoula, Monr 
Noyes E. Leech, Philadelphia, Pa.
Arthur Lenhoff, Buffalo, N. Y.
Edward H. Levi, Chicago, 111. \
A. Leo Levin, Philadelphia, Pa.
Arthur R. Lewis, Newark, N. J.
William B. Lockhart, Minneapolis, Minn. r Louis Loss. New Haven. Conn.
Robert B. Lowry, Cincinnati. Ohio John W. MacDonald, Ithaca, N Y '  
Douglas B. Maggs', Durham, N. C. '
W Howard Mann. Bloomington, Ind.- 
Robert E. Mathews, Columbus. Ohio '

G- McClure, Minneapolis, Mina.Philip Mechem, Philadelphia, Pa Bernard Melrzer, Chicago, III.
James W. Moore, New Haven, Conn.* 
Cornelius J. Moynihan, Boston. Mass. • 
Addison A. Mueller, New Haven, Conn 
Albert R. Mugel. Buffalo, N. Y.
Joseph H. Murphy, Syracuse. N Y  
Nathaniel Nathanson, Chicago, III." t



50
Albert F. Neumann, Ann Arbor, Mich.

C. Newman, Berkeley, Calif.Vai Nolan, Jr., Bloomington, Ind.
Filmer S. C. Northrop, New Haven, Conn. Charles B. Nutting, Pittsburgh, Pa Covey T. Oliver, Berkeley, Calif.
John D. O Reilly, Boston, Mass.
George E. Palmer, Ann Arbor, Mich. 
Monrad G. Paulsen, Bloomington, Ind. Willard H. Pedrick, Chicago, 111.
John dcj. Pemberton, Jr., Durham, N. C 
Maynard E. Pirsig, Minneapolis, Minn 
Ervin H. Pollack, Columbus, Ohio Charles W. Quick, Washington, D. C. 
Joseph F. Rarick, Minneapolis, Minn. 
Horace E. Read, Minneapolis, Minn.
John Wesley Reed, Ann Arbor, Mich. 
Willis L. Reese, New York, N. Y.
Herbert O. Reid, Washington, D. C. 
Charles Rcmbar, Newark, N. J.
Frank J. Remington, Madison, Wis. 
Charles A. Reynard, Baton Rouge, La. Ralph S. Rice, Cincinnati, Ohio 
William Gorham Rice, Madison, Wis. Luvern V. Riekc, Seattle, Wash.
Stefan A. Riesenfeld, Minneapolis, Minn. William R. Roalfe, Chicago, 111.Fred Rodell, New Haven, Conn.
Eugene V. Rostow, New Haven, Conn. Walter V. Schaefer, Chicago, 111.
Morris M. Schnitzer, Newark, N. J.
Oliver C. Schrocder, Cleveland, Ohio 
Franklin M. Schultz, Bloomington, Ind.

Louis B. Schwartz, Philadelphia, Pa.Burke Shartel, Ann Arbor, Mich.
Conrad J. Shearer, Madison. Wis.John B. Sholley, Seattle, Wash.
Harry Shulman, New Haven, Conn.Emil Slizewski, Boston, Mass.
Allan F. Smith, Ann Arbor, Mich.
Russell A. Smith, Ann Arbor, Mich.T. Bryant Smith, Newark, N. J.
Carl B. Spaeth, Stanford, Calif.
Roland J. Stanger, Columbus, Ohio David Stoffer, Newark, N. J.
Wesley A. Sturges, New Haven, Conn. 
Richard S. Sullivan. Boston, Mass.Russell Sullivan, Urbana. 111.
Clyde W. Summers, Buffalo, N. Y.
Stanley S. Surrey, Berkeley, Calif.
Malcolm D. Talbott, Newark, N. J.
Floyd E. Thomas, Tucson, Ariz.
John R. Thompson, New .Haven, Conn. 
Lehan K. Tunks, Iowa City, Iowa 
Harry W. Vanneman, Columbus, Ohio Marlin Volz, Madison, Wis.
John B. Waite. Ann Arbor, Mich.
Leon H. Wallace, Bloomington, Ind.
James A. Washington, Jr.,. Washington, D. C. David Watts, Cambridge. Mass.
Marshman S. Wattson, Bloomington, Ind. 
Henry Weihofen, Albuquerque, N. M.W. Willard Wirtz, Chicago, III.
Donald Wollett, Seattle, Wash.
L. Hart Wright, Ann Arbor, Mich.