Davis v. Prince Edward County, VA School Board Oral Argument

    In The
SUPREME COURT OF THE UNITED STATES

October Term , 1952

Washington, D. C.

DOROTHY E. DAVIS, BERTHA M. DAVIS 
AND INEZ D. DAVIS, E T C ., ET AL.,

Appellants,

v. No. 191

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, ET AL.,

Appellees.

December 10, 1952

(4266 W A R D  & PAUL
NATIONAL 4267 

(4268 1760 PENNSYLVANIA AVE., N. W. 
WASHINGTON. D. C.



C O N T E N T S
PAGE

ARGUBIENT ON BEHALF OF APPELLANTS

By Nr. Robinson 2

ARGUMENT ON BEHALF OF APPELLEES

By Mr. Moore 29

By Mr. Almond 62

REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS

By Mr. Robinson 7 1



RTL
Williams

1
IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1952

DOROTHY E. 
AND INEZ D

DAVIS, BERTHA M. DAVIS 
« DAVIS, ETC e, ET AL.,

Appellants,

vs „

COUNTY SCHOOL BOARD OF PRINCE EDWARD 
COUNTY, VIRGINIA, ET AL.,

Appellees.

No. 191

Washington, D. C.,

Wednesday, December 10, 1952. 

The above-entitled cause came on for oral argument at 

1:15 p.m.

PRESENT:

The Chief Justice, Honorable Fred M. Vinson, and 

Associate Justices Black, Reed, Frankfurter, Douglas, 

Jackson, Burton, Clark, and Minton.

APPEARANCES:

On behalf of the Appellants:

SP0TTSW00D W. ROBINSON, III, ESQ.

On behalf of the Appellees:

T. JUSTIN MOORE, ESQ



2
P R O C E E D I N G S

The Chief Justice: Case No. 191, Davis, et al, against

County School Board of Prince Edward County, Virginia, et al.

The Clerk: Counsel are present.

ARGUMENT ON BEHALF OF APPELLANTS 

By Mr. Robinson

Mr. Robinson: May it please the Court, this case comes

before this Court upon appeal from the final decree of the 

United States District Court for the Eastern District of 

Virginia, denying an injunction against the enforcement of 

section 140 of the Constitution of Virginia, and section 22-221 

of the Code of Virginia, each requiring that white and 

colored children be taught in separate schools.

The appellants,who were the plaintiffs below, are infant 

high school students residing in Prince Edward County,

Virginia, and their respective parents and guardians. The 

appellees are the County School Board of Prince Edward County
*

and the Division Superintendent of Schools of the County, 

who were the original defendants below, and who as officers 

of the State of Virginia enforce its segregation laws, and 

the Commonwealth of Virginia, which intervenes as a party 

defendant after the filing of the action.

The complaint in this case alleged that the original 

defendants maintain separate schools for white and Negro high

in the County, but the puolic highschool students residing



3
school maintained for Negroes was unequal to the public high 

schools maintained for white students in plant, equipment, 

curricula, and other opportunities, advantages, and facilities, 

and that it was impossible for the infant appellants to secure 

public high school opportunities, advantages, and facilities 

equal to those afforded white childi.’en so long as the segre­

gation laws are in force.

The complaint therefore sought a judgment declaratory 

of the invalidity of the laws as a denial of appellants * 

rights secured by the due-process and equal-protection clauses 

of the Fourteenth Amendment, and an injunction restraining 

the appellees from enforcing these laws or from maicing any 

distinction based upon race or color among the children 

attending the high schools of Prince Edward County.

In their answer, the original defendants admitted that 

they were enforcing the segregation laws of the State, 

admitted that the Negro high school was inferior in plant 

and equipment to the two white high schools, but denied that 

it was otherwise unequal and denied that segregation in the 

public schools contravened any provision of the Federal 

Constitution.

After Intervention by the Commonwealth in its answer it 

made the same admissions and asserted the same defenses as

did the original defendants.

There are three high schools in Prince Edward County,



4
which are the Farmville High School and the Worsham High 

School, which are maintained for white students, and the Moton 

High School, which is maintained for Negro students.

Attendance of white children at the Farmville High 

School or the Worsham High School is largely determined accord 

ing to the area in which the child lives. But the segrega­

tion laws of the State, so it was testified to in this record 

by the Division Superintendent of Schools, determine whether 

the child attends the Moton School, on the one side, or one 

of the other two schools on the other.

A three-judge District Court was convened pursuant to 

sections 2281 and 2284 of Title 28 of the United State Code, 

and at the trial both the appellants and the appellees 

introduced evidence, including expert testimony, first as 

to the extent of the existing inequalities in the Negro high 

school as compared with the two white high schools with 

respect to physical facilities and currioula, and secondly, 

on the issue as to whether equality of educational opportuni­

ties and benefits can ever be afforded Negro children in a 

racially segregated public school system.

The evidence on the second score will be summarized 

in a later portion of this argument.

At the conclusion of the trial, the District Court found 

that the Moton High School for Negroes was inferior to the 

white schools, not only in plant and equipment, but also in



5
curricula and means of transportation. It ordered the 

appellees to forthwith provide the appellants with curricula 

and transportation facilities substantially equal to those 

afforded to white students, and to proceed with all reasonable 

diligence and dispatch to remove the existing inequalities 

by building, furnishing, and providing a high school build­

ing and facilities for Negro students in accordance with the 

program which the evidence for the appellees indicated would 

result in the availability for Negro students of a new Negro 

high school in September, 1953.

At the same time, the District Court refused to enjoin 

the enforcement of the segregation laws or to restrain the 

appellees from assigning school space in the county on the 

basis of race or color, and in its opinion it asserted the 

following grounds:

First, it said that on the issue of the effects of 

segregation in education, it accepted the decision in Briggs 

v. Elliott, the District Court's decision, and the decision 

of the Court of Appeals for the District of Columbia in Carr 

v. Corning, cases which, as the court said, had upheld segre­

gation and had refused to decree that it should be abolished.

Additionally, the court said that on the issue of the 

effects of segregation, of the effects upon the pupil result­

ing from the fact of segregation itself, the court could not

see that the plaintiffs' evidence overbalances the defendants'.



; 6
It further felt that nullification of the segregation 

laws was unwarranted in view of the evidence of the appellees 

that the segregation laws declare what the court called one 

of the ways of life in Virginia, having an existence of more 

than eighty years, evidence that segregation had begotten 

greater opportunities for the Negro, including employment 

In Virginia alone of more Negro public-school teachers than 

in all thirty-one nonsegregating States, in view of evidence 

which was offered by the appellees that in sixty-three of
ij

Virginia's 127 cities and counties, the high school facilities 

are equal to those for whites, and In thirty of these sixty- 

three cities and counties, they are or soon will be better 

than those for whites, in view of the evidence, or testimony i 

submitted by the appellees ' witnesses that the involuntary 

elimination of segregation would lessen public interest in 

and support of the public schools, and would injure both 

races, which the court felt was, in the language of the court, 

"a weighted practical factor to be considered in determining 

whether a reasonable basis had been shown to exist for the 

continuation of the school segregation."

The court further felt that having found no hurt or harm 

to either race, that ended its Inquiry, stating that It was 

not for the court to adjudicate the policy as right or wrong, 

but that the Commonwealth of Virginia must determine for

itself.



7
An appeal was duly taken to this Court from this decision 

under the provisions of sections 1255 and 2101(b) of Title 28»

of the United States Code.

Probable jurisdiction was noted by this Court on 

October 8 , 1952, and presented for decision in this case on 

the following questions:

First, whether the segregation laws of Virginia are 

invalid because violative of rights secured by the due-process 

and equal-protection clauses of the Fourteenth Amendment;

Secondly, whether after finding that the buildings, 

facilities, curricula, and means of transportation afforded 

appellants were equal to those afforded whites, the court 

should have issued a decree forthwith restraining the 

appellees from excluding the infant appellants from the 

superior secondary school facilities of the county on the 

basis of race or color, and whether or not under the due- 

process and equal-protection clauses, the appellants are 

entitled to equality in all aspects of the public secondary 

educational process, including all educationally significant 

factors affecting the development of skills, mind, and 

character, in addition to equality merely in physical facili­

ties and curricula, and whether the District Court should 

have so found on the evidence presented.

At the outset, I would like to place the Virginia case

in what I consider to be its proper setting. Unlike Gebhart



8
v. Belton, the Delaware case, this case does not present 

the situation of a finding of Inequality of physical facili­

ties and curricula coupled with an injunction against the 

continuance of segregation in these circumstances.

In this case, the District Court made a finding of 

Inequality of physical facilities and curricula and still 

refused to enjoin the segregation practice in the school 

system in question.

Unlike Brown v. Board of Education, the Kansas case, 

this case does not present the situation of equal physical 

facilities and curricula coupled with a finding of injury 

resultant from the fact of segregation itself.

In this case, the facilities and curricula were found 

to he unequal, and the District Court erroneously, in our view, 

made a finding that no harm resulted to the student from the 

fact of segregation.

Unlike Bolling v. Sharpe, the District of Columbia case, 

the appellants in this case did not concede an equality of 

physical facilities and curricula. But like in Bolling v. 

Sharpe and unlike the other State cases, we urge that State- 

imposed educational segregation is a denial of due process, 

as well as a denial of the equal protection of the laws.

I submit that it is important to distinguish between 

two dissimilar approaches to the basic problem in this case.

It has been urged that the segregation laws derive validity



9
as a consequence of a long duration supported and made possible 

by a long line of judicial decisions, including expressions in 

some of the decisions of this Court.

At the same time, it is urged that these laws are valid 

as a matter of constitutionally permissible social experimenta­

tion by the States. On the matter of stare decisis, I submit
i

that the duration of the challenged practice, while it is 

persuasive, is not controlling.
• ■ i

This Court lias not hesitated to change the course of its

decision, although of long standing, when error has been
«

demonstrated, and courts are even less reluctant to examine 

their decisions when it Is plain that the conditions of the 

present are substantially different from those of the past.

No court has ever considered itself irrevocably bound 

into the future by its prior determinations. As a matter of 

social experimentation, the laws in question must satisfy 

the requirements of the Constitution. While this Court has 

permitted the States to legislate or otherwise officially 

act experimentally in the social and economic fields, it has 

always recognized and held that this power is subject to the 

limitations of the Constitution, and that the tests of the 

Constitution must be met.

Upon examination in the past, it has found such experi­

mentation to be constitutionally wanting when predicated

solely on the facts of race.



10
Justice Frankfurter: Mr. Robinson, If I heard you

right —  and I was looking at your brief to clarify ray
I

impression —  if you are right, this injunction is reversible 

because it violates the Gaines doctrine?

Mr. Robinson: I would submit, Mr. Justice Frankfurter,

for the additional reason -- that is correct, sir.

Justice Frankfurter: Not for the additional reason. I

should say it is for the prior reason. This Court ought
i

not to pass on constitutional issues bigger than the record 

calls for.

Mr. Robinson: Let me answer Your Honor 1s question this j
way. I believe, and I intend to argue, that by reason of 

the physical inequalities and the inequalities in curricula 

which the District Court found and which were supported 

largely by unoontradicted testimony, that alone should have 

justified the issuance of an Injunction which would have 

admitted these appellants to share the high school facilities 

of the County without regard to race, in other words, would 1 

have unsegregated the schools at that point.

Justice Frankfurter: We have specific appellants here, j

specific plaintiffs, and particular children, boys and girls,; 

I take it —

Mr. Robinson: That is correct, sir.

Justice Frankfurter: -- who want to get to a high

school



11
Mr. Robinson: That Is correct, sir.

Justice Frankfurter: And you say that they ought to be

allowed because they do not have adequate high schools with 

equal facilities?

Mr. Robinson: I would answer the question this way. I

do not know where they will go, sir. I do not mean to imply 

that all of them can get in a white high school, because I 

know that they cannot.

Justice Frankfurter: I am talking about your clients.

Mr. Robinson: That is correct, sir.

Justice Frankfurter: And if you are right, then, any

decree should have been issued according to Gaines v, Canada?

Mr. Robinson: That is one of our decisions here. But

we feel that the other question is also necessarily involved 

for additional reasons.

If we got that decree, I take it that it would unsegre­

gate the schools and keep them in that fashion only so long 

as there would be a showing, or we would be able to maintain 

a showing, of physical inequality.

Now, the appellants in this case say that they will have 

a new Negro high school available in September of 1955*

But be that as it may, if their right to enjoy the 

superior facilities of public education depends upon the 

existence or the nonexistence of inequality, then It seems 

very fair to me that there Is no permanency In the administra



12

tion of the schools, and there is no permanency In the status 

of these appellants. Any way we look at the situation, it 

means that if the facilities are unequal, you cannot segre­

gate. If the scope of the deoision is limited to that, if 

the facilities are equal, you can segregate; consequently, 

as the facilities change in that regard, as equilibrium is 

disturbed by the variety of facts and circumstances present 

in any educational system, then under those circumstances we 

could have segregated or we have nonsegregated education.

Justice Frankfurter: But this Court, constituted as it

is at this moment, has faced that problem in several cases, 

and has decided that with inequality, the order will be 

Issued on that basis, and we shall not borrow trouble in 

1953 or 195^ or whenever It is„

Mr. Robinson: I agree with Your Honor entirely. My

understending of the past cases has been that the basis of 

the decision under those circumstances has been one upon 

which it was pretty nearly Impossible to resume segregation 

at some future time.

Looking at the Gaines case, for example, the factors 

which this Court enumerated in its opinion, in order to make 

out the showing of inequality, not merely inequality of 

physical facilities and curricula —  they were there —  but 

this Court considered, and it based its opinion upon what it 

termed the more important considerations which were involved



15

in a situation of that sort. And I certainly take it that 

after the decision in the Sweatt case, it is no longer 

possible for any State to have hope.of establishing a separate 

segregated law school for Negro students.

Justice Frankfurter: But if Mr. Marshall is right, and !

your clients are going to go to present white schools, things 

might turn out to be so happy and so congenial and so desir­

able that you do not know what the result may be.

Mr. Robinson: I am fully aware of that, if Your Honor 

please. But it seem3 to me that there should be more in the 

way of stability, in the disposition of a situation of this 

sort.

We have the matter of the administration of the schools,t'
and also, I submit, we have the matter of the right of the 

pupils who are Involved. And I just do not see how, if we 

simply rest the decision upon a narrow groundwhich will not ! 

afford any reasonable expectation, or let me put it this way,! 

any sound assurance that whatever changes will occur in the I
system at the present time, as a oonsequenoe of those 

inequalities, will continue, but we might revert back to the 

situation where we are once the facilities are made physically 

equal and the same courses of instruction are put in, under j 

those circumstances it seems to me that the normal disinclina­

tion to base a decision upon a broader ground —

Justice Frankfurter: It is not disinclination. It Is



14
not a restriction of that order. It is not just a personal 

preference.

Mr. Robinson: I understand that in the historical i

context, of course, considering the whole history of this 

Nation, it is a fact that the legislation of a State should 

not be disturbed unless it is fatally in collision with the 

Constitution.

I should like to urge upon Your Honors in this connec­

tion that what we sought in this case was a permanent 

Injunction, It seems to me that we do not get it. If we are 

simply limited to that particular phase of the matter, it 

means, as I have tried to emphasize here, that we are in a 

situation where we cannot depend on anything.

The sohools may be unequal, if Your Honor please, 

tomorrow, and consequently we are shunted right on out.

Justice Reed: Assuming that you would be admitted by

decree to the high schools that you seek to enter, would it 

not he necessary to admit them on a segregated basis as the 

law stands now?

Mr. Robinson: Yes, I suppose so.

Justice Reed: As the law stands now, you will be
/

admitted on a segregated basis?

Mr. Robinson: That is correct, sir.

Justice Reed: Because you have not had a deoision that

below the grade of colleges you are required to have an



15
association of students.

Mr. Robinson: Then, of course, if Your Honor please, ire

might have the other situation where they will take the white 

students and put them into bad schools. So consequently, I 

think any way we look at it, I agree with Your Honor's sug­

gestion in that regard.

I submit that at least we get to the point, it seems to 

me, where the basis of decision must be something more than 

a basis which would permit of a shuttling of pupils back and 

forth into segregated schools and into an unsegregated system, 

something which would have no assurance, and something which 

I cannot conduce will be helpful, either to the school 

authorities or to the pupils involved.

Justice Reed: Tills is not a class suit, is it?

Mr. Robinson: Yes, it is; yes, Your Honor. We brought 

it as a class suit on behalf of all Negroes similarly 

involved.
I might say for the benefit of the Court that I do not 

intend to unduly consume the Court's time on behalf of the 

question of constitutionality per se. But in view of the 

fact that 1 do feel that the question is in the Virginia 

case, I would like to be indulged for just a moment to make 

reference to a few things that I think are particularly 

important.
I have just said that on examination this Court had in



16
the past found that legislation or other types of State 

activity, official activity, which were predicated solely on 

the fact of race were unconstitutional. 1 was going to make 

reference to the decisions of this Court in the area of the 

ownership and occupancy of real property, the Buchanan and 

Shelley cases, specio&lly.

The Takahashi case opened the field of employment or 

occupation. Restrictions on the right to vote were Nixon 

v. Herndon, based solely on the question of race, and in 

the Court's decision, having no relationship whatsoever to 

the end which the legislation sought to attain; and in the 

area of professional and graduate education, McLaurin v. 

the Oklahoma State Regents, which, incidentally, was a case 

in which there was no inequality present at all, but quite 

on the grounds of other factors which the Court to exist in 

the situation in which it was concluded that there was a 

violation of the Fourteenth Amendment.

Justice Reed: What do you ooncelve to be the purpose

of the Virginia enactment of the statute?

Mr. Robinson: If Your Honor please, I am in very much

the same situation that counsel in the South Carolina case 

are. The only thing which appears in the record which might 

be helpful to the Court in that regard is the testimony of 

Doctor Darden, the present president of the University of 

Virginia, and a former Governor of the State.



17
That testimony commences in the record at page 451.

Doctor Darden went into an examination —  he gave rather an 

outline of the historical development of public education in 

Virginia, and he said, according to his testimony —  and it 

is a fact as a check of the statutes will show —  that 

segregation came into Virginia in pretty much the same vray 

as it did in South Carolina, at the time when the public 

school system of Virginia was just getting under way.

Virginia embarked upon a broad program of public educa- j 
tion about 1 8 7 0, and the first provision with respect to the 

segregation of white and colored pupils appeared on the 

statute books of Virginia in that particular year. It did not 

appear in the Constitution of Virginia until about 1900.

On page 462 of the record, Doctor Darden characterized 

the problem before the court as a by-product, and a fearful 

by-product, of human slavery, and he went on to say that we 

are the inheritors of that system.

I think from the historical viewpoint, there is much- to 

sustain the position that the original notion behind the 

school segregation laws was to impose upon Negroes disabili­

ties which prior to the time of the adoption of the Thirteenth, 

Fourteenth, andFLfteenth amendments they labored under. That 

is the only thing that I can offer to this Court in the way of 

a justification.

Justice Reeds Yousay, to impose disabilities?



18
Mr. Robinson: I beg your pardon. I meant, the

Thirteenth, Fourteenth, and Fifteenth Amendments were dis­

abilities which were upon the Negro prior to the time of

the adoption of the Thirteenth, Fourteenth, and Fifteenth 

Amendments, which had as their purpose the elimination of 

those disabilities.

In so far as the statute is concerned, Doctor Tarden 

speaks of it here, in his very words, as a by-product, and 

a fearful by-product, of human slavery.

Before moving to the next point, I would like to urge 

upon the Court that the reasonableness or the unreaacnableness 

of educational segregation per se at the elementary end high 

school levels has never been tested.

Its validity in the previous decisions of this Court has 

been assumed to follow from its duration and acceptance over 

a long period of time.

As Mr. Marshall made reference, the duration of the 

particular practice has not been considered by this Court in 

the past to prevent reexamination of the problem. We had the 

same thing, for example, to come before the Court in the 

cases dealing with this problem at the graduate and profession­

al levels, where it came here with a history of long duration^ 

yet the mere fact that the practice had existed for many 

years, the mere fact that it had become a part of the community 

life, did not, in the judgment of the Court, establish its



19
validity.

The same thing is true with respect to the restrictive 

covenant area, the area of exclusion of Negroes from jury 

service, segregation of passengers in interstate commerce, all 

instances where they were practices of long duration, yet 

they were found to he constitutionally fatal, and this Court 

so held.
So it is our position in Virginia, on this particular 

score, that it should now be determined by the application of 

the normal constitutional standards, whether the legislation 

here involved meets the challenge pf the Fourteenth Amendment, 

and we respectfully submit that upon 3uoh examination, they 

will be found to be lacking.

Onthe second point, as I have already said, the District 

Court found that there was physical inequality and inequality 

of curricula.
In these circumstances, we submit that the action which 

the District Court should have taken at that particular time 

was to have enjoined the enforcement of segregation under 

those circumstances.

I should also like to point out that in addition to the 

finding of the District Court, which is found on page 622 of 

the record, in which the court goes into some small amount ox 

discussion of the extent of the inequality, our record i~ 

pretty well loaded with evidence, most of which was uncontra-



20
dieted, showing physloal inequalities in the various areas.

As a matter of fact, the appellees did not even bother 

to cross-examine the chief witness that we put on the stand, 

whose testimony established these inequalities.

I should like to request the attention of the Court to 

the fact that the Farmville H^gh School, one of the two white 

high schools, is a school which is accredited by the Southern 

Association of Colleges and Secondary Schools, while the 

Moton School for Negroes is not.

As a consequence cf this accreditation, the white graduate 

of Farmville will generally be admitted to institutions of 

higher learning outside the State on his record alone?, while 

Negro graduates of Moton will generally be required to take 

examinations to get in, or, If admitted without examination, 

will be accorded only a probationary status.

Farmville also offers to its students the opportunity 

of membership in the National Honor Society, which creates
\

educational motivation and affords preferences in college 

acceptance and employment.

Our evidence in this case shows not only these inequali­

ties, but clearly demonstrated that these inequalities in 

themselves handicap Negro students in their educational 

endeavors end make it impossible for Negro students to obtain 

educational opportunities and advantages equal to those 

afforded white students.



21

While the District Court did forthwith enjoin the 

continuation of discrimination in curricula offerings, I think 

it is important to note —  and this is uncontradicted on this 

record —  that lack or inferiority of proper facilities for 

teaching many of the courses prevents advantageous instruction 

in some of these courses, and in some Instances prevents those 

courses from being taught at all.

Going back for just a moment, the Court will recall that 

the District Court here did enter an Injunction requiring
j

forthwith the elimination of discrimination with respect to 

transportation means and curricula, but while that is true, 

we are faced with the situation where, absent the particular I 

facilities essential for teaching the course, or, if not that,
i

the inferiority of the facilities for teaching the course, 

it simply is not possible, even though we have a decree which 

purports to forthwith equalize curricular offerings —

The Chief Justice: What Is your solution to that problem?

Mr. Robinson: The solution, we submit, was not the

solution taken by the District Court —

The Chief Justice: I say, what is your solution?

Mr, Robinson: That, under the circumstances, the Court

should have immediately entered an injunction which would have 

prevented the school authorities from assigning school space 

in the County on the basis of race, would have removed —

The Chief Justice: If you did not have the facilities,



22
and if you did not have the teachers, how would you take care 

of them, regardless of what kind of curricula you had?

Mr. Robinson: There are a sufficient number of teachers

in the County, Mr. Chief Justice, to take care of all of the 

students. There is a sufficient amount of school space In 

the County to take care of all the students.

The differences here are —

The Chief Justice: You mean, to take them out of this

particular locality and transport them over to some other 

part of the County?

Mr. Robinson: No. At the present time, if Your Honor

please, ve have the situation where the white children are 

getting these courses; Negro children are getting, not all 

of them, but they are getting some of these courses, anyway. 

But the trouble is that over in the Negro school you have 

these inferiorities.

Now, we submit that you cannot continue to discriminate 

against Negroes, or these Negro students; under the circum­

stances, what you do is, you simply make all the facilities 

in the County available to all the pupilB, without restriction 

or assignment to particular schools on the basis of race.

The Chief Justice: What was the order of the Distriot

Court?
Mr. Robinson: The District Court did not order —

The Chief Justice: I did not ask you what they did not



23

do; what did they do?

Mr. Robinson: The District Court on the matter of courses

forthwith enjoined discrimination in the curricular offerings. 

That was the order of the District Court. I was trying to 

make the distinction, if the Chief Justice please, between 

the so-called equalisation decree and what I would call an 

antisegregation decreee.

In this regard —  and I think that I have already pretty 

well Indicated our position —  we feel that in view of the 

fact that in this particular area we are dealing with an 

exercise of State power whichhas been shown to affect rights 

which are secured by the Fourteenth Amendment, an area in 

which the authority of the State is subordinate to the mandate 

of the Amendment, that whatever the fate of educational segre­

gation may be under other circumstances, it is perfectly 

plain that it cannot obtain in the face of these inequalities.

As this Court has on several occasions said, the rights 

which are involved are personal and present, and the Const!- j 

tution does not countenance any moratorium upon the satis­

faction of these particular rights.

So under the line of deoisions of this Court, commencing 

with Gaines and going right straight through with Sweatt, we 

feel that the relief which I have suggested in arguing here 

today should have been granted by the District Court.

I should also like to point out that we feel that there



are additional reasons why this equalization decree should 

not have been entered, and I think I can he brief In this 

regard, because Mr. Marshall In his argument touched upon 

this on yesterday.

We feel that any undertaking by a court to establish or 

maintain constitutional equality by judicial decree simply 

means that the court is in the business of supervising the 

school system and is in there indefinitely.

We are not dealing with a physical thing. We are not 

dealing with a static thing. We are dealing with an educa- j
j

tional system that has a number of variables and a number of 

dissimilarities. We have schools that are different in size, 

location and environment, and we have teachers who differ in | 

ability, personality, and effectiveness, and consequently 

their teachings vary in value.

So consequently, all up and down the educational system 

we are going to find points of difference. Additionally, 

education is an ever-growing and progressing field, and 

facilities and methods are constantly changing.

They get better as experience and need demonstrate the 

way. As a matter of fact, several of the witnesses for the 

appellees testified that notwithstanding an effort to provide 

equal buildings and facilities and equally well prepared 

teachers, identity of educational opportunity could not be 

afforded under any circumstances, and at the very be3t the



facilities could only be made comparable or approximately

equal.

Consequently, we submit that this is a task for which 

the Court's machinery is not entirely suited, and consequent­

ly the regulation or maintenance of constitutional equality 

by an equalization decree embracing, as it does, the neces­

sity that pupils and school authorities almost constantly 

stay in court, should be avoided, if possible.

We have also set forth in our brief something of the 

history of the equalization decree in Virginia, There have 

been four cases in which permanent injunctions against dis­

crimination upon a finding that there was inequality of 

curricula or inequality of physical facilities, have been 

forthcoming.

Nevertheless, in each instance it wa3 necessary, after 

the decree, to have further proceedings in the co'.irt with 

respect to efforts to obtain that sort of educational equality.

On the final point, I should like to say this. As I 

indicated earlier in the argument, the evidence in Virginia 

was conflicting —  I should put it this way: There was

evidence on both sides, evidence offered by both oide3 on

the question of harm or the effect resulting from segregation (
!

itself. The witness for the appellees —

The Chief Justices What did the court say ' bo- t that?

Mr, Robinson: The court concluded that, first, it found



26
no hurt or harm resulting from segregation to the pupils of 

either race. t

Secondly, the court said that on %he fact issue as to 

whether Negroes could obtain in a separate school an equal 

education, the court could not say that the evidence for the 

plaintiffs overbalanced the evidence for the defendants.

Our testimony went quite fully into the matter, and I
?I

will not bother at the present tine —  we set it forth in j
«

pretty good summary, I think, in our brief ~  to summarize it
f

here.
But I should like to make these comments addressed to the 

disposition which was made of this evidence by the District 

Court.
Notwithstanding the fact that the District Court con­

cluded that there was no harm or hurt to any student, upon 

the examination of the evidence submitted by the appellees, 

the situation actually is that all of their experts who 

testified except one admitted that there was either harm, or 

that there was a possibility of harm.

Additionally, on the question as to whether separate 

education can ever afford equal educational opportunity, tl*e 

witnesses who expressed the opinion for the appellees that it 

was possible that there might be equality in a separate 

school based their conclusion upon the conditions existent

in Virginia at the present time.



27
They were influenced by what the situation would he 

in the event race should he removed as a factor in the educa- 

tional system, and consequently predicated theiropinions 

under those circumstances.

We submit that under these conditions, a reexamination 

of this evidence will demonstrate that the conclusion of the 

District Court in this particular regard is without founda­

tion and consequently it should not bo held binding upon 

this Court,

I would like to reserve the remainder of my time for 

rebuttal.

Justice Reeds You 3poke of tho fact that you depended, 'j 

not only on equal protection, but due process.

Mr, Robinsons Ye3, sir.

Justice Reed: Did I hear you make a distinction between

the two?
Mr. Robinsons I would be glad to do so at the present

time.
Justice Reed: Is there a distinction, in your mind?

Mr, Robinsons I think that I can say this: Anything

that due process will catch, I think equal protection will 

catch, in this area. But certainly a legislative enactment 

which makes a distinction based solely on race in the enjoy­

ment of the educational program offered by the 3tote, I think 

would be that type of arbitrary end unreasonable legislation



28 '
which would be in violation of the due-process clause.

Justice Reed: You could have a valid classification

under equal protection; you could have a classification under 

due process?

Mr. Robinson: That is correct, sir.

Justice Reed: You do not make any point on that?

Mr. Robinson: It is also conceivable to nue that you 

might have the other situation, though, by reason of the fact 

that I feel in this particular instance certainly the legisla­

tion is caught by the one or by the other.
j

|



29
The Chief Justice: Mr. Moore.

ARGUMENT ON BEHALF OF APPELLEES 

By Mr. Moore

Mr. Moore: May it please the Court, we believe it to

be particularly fortunate that the Court concluded to assume 

for argument all five of these oases together because while 

in theory each case stands on its own record, there is, of 

course, one main stream which runs through all cf the oases, 

and it is obvious from the arguments already made by counsel 

for the appellants that that is the real question with which 

they are concerned, namely, to test finally, if possible, the 

issue as to whether the mere fact of segregation by law is 

a denial of equal protection.

end
RTL



30
Williams (7)
PA 1 fls rfcl

Now, the Virginia case Is one which Is equally helpful, I 

believe not only In respect of Its own setting, but In Its 

bearing on these other cases.

I am going to undertake in the discussion of thi3 case to 

deal with it in that sort of way, not merely from the standpoint 

of our case, but al3o In Its bearing on the other.

There are several distinctive features of this Virginia 

case that I want to call to your Honors* attention et the outset. 

The first Is the nature of the record that you find here. You 

were impressed, I am sure, with the fact that you have a much 

larger record. We believe that was not unnecessarily made large. 

When we were requested to represent this little county of Prince 

Edward and also to be associated with the Attorney General in 

the representation of the Commonwealth, we found that there had 

been these four or five cases In the Federal Court where the 

question of Inequality of facilities had been the issue, and that 

was the only issue. YJhere the courts had found that to exist, 

they promptly made decrees requiring equalisation.

We also found that the State had undertaken an amazing 

program of expenditures of money and expansion of the public 

school system, particularly over the last twenty years, with the 

view to making the facilities equal for Negroes and whites, so 

that perhaps with the exception of the State of North Carolina, 

Virginia stands probably at the top among all these southern 

states In that program, which I sm going to refer to raox»e fully



31
pa 2 a little later.

But we also found in comparing and getting the benefit of 

the Kansas and the South Carolina case, which haa just been heard, 

that those appellants had laid all this great stress on what they 

call the psychological issue. But we also found that there was 

quite a conflict of opinion among the experts on that matter.

3o we undertook to prepare a full record, and your Honors

would find, when you brovrss through this record that you have,

instead of, as in the Kansas case where all of these teachers

and educators and psychologists testified on one side, and in

the South Carolina case on the appellants* side —  you find a
/■»

great array of very distinguished persons vrho testified in the 

Virginia case in direct conflict on this crucial question of 

fact.

So the first distinctive feature is the fuller record.

The second distinctive feature is the difference in the 

findings of the Court.

The Court, in contrast to the Kansas case, based upon the 

historical background in Virginia and upon all this evidence, 

found on the crucial questions which these gentlemen hod stressed 

so auoh that they failed to prove their case, even on that point

That is one of the main distinctive features in this case.

There also will be presented the difference a3 compared to 

with the Kansas case, as to the groat impact that would result 

in Virginia from a sudden elimination of cegregatlon.



32

Now, those are among the issues. There is this other 

distinctive feature, which I should mention at the outset. This 

case on this point is similar to the South Carolina case, in 

largo degree, because when the case of South Carolina was tried, 

the facilities were not yet completed cn the first trial, and 

were not completed on the second hearing. But when the case 

reaches this Court, they have been completed.

Now, Virginia Is just a little bit behind South Carolina 

in that respect. But there ia no doubt about it, no question 

from this record, that the funds are in hand, the buildings are 

going up, and the facilities will be equal by nest September.

Those are the four principal distinctive features.

Now, may it please the Court, in undertaking to make a very 

brief statement of the case, a3 to how the issues come here, 

there are several facts that I believe should be brought to your 

ettention at the outset. This case crises in a comparatively 

small county of the 100 counties of Virginia, Prince Edward 

County. It has only about 15,000 population. It has one town 

of any size, much, in it, the town of Parraville, where the old 

Haapden-Sydney College is located.

The population is divided about 52 per cent Negro and 

per cent white in the county. The school population is higher 

among the Negroes than that figure. There is about 60 per cent 

of the school population that is Negro and *K) per cent white.

So, roughly, you may regard the situation as being one



33

pa4 where the ratio is about three to one, whites throe to one.

Now, these appellants are high school students. This case re­

lates entirely to high school students. The South Carolina 

case was elementary and high school. These cases vary. But 

this is strictly a high school.

Justice 31ack: What did you say about the three to one?

Mr. Moore: I said that the ratio is about three whites to

one Negro.

Justice Black: Where?

Mr. Moore: Throughout tha state. I am sorry. I did not

clear that up.

Justice Black: I thought you were referring to the county.

That is quite different.

Mr. Moore: That is right. I am sorry.

Now, In the county I should mention that this is e rether 

poor county financially, in the state. It has an assessed value 

of only about $9,500,000. The total assessed propei»ty, an the 

ratio of assessment of about 5 0 per cent —  tho total real and 

personal property value is about $18,500,000.

How, there are three h igh  3Choolu in tho county, two for 

w hite and one for Negro. As might be expected, they are r.ot 

identical. In the three h igh  schools in 1951, there were *100 

w hite ch ild ren  and ?l60 Negro ch ild ren .

In standing, the Farravllle High School was shown to be the 

be9t high school. That Is, the white high school in Farravllle.



34

pa5

a

7

The next is the Moton School, the Negro school at Farmvllle, and 

the worst is the Ylorsham, which is a white school, a small 

conibination high school Gnd elementary school.
Now, one of the principal reasons why the Moton School, 

ifhich, as your Honors will realize , is named for the distin­

guished colored educator, who, by the way, was educated largely 

in Virginia, where there was segregation —  one of the main 

reasons why Fermville is ranked first is because of the unequal 

growth in school populetion in the last 10 years, particularly 

among the Negroes. The record shows that the Negro pupils in­

creased in the last 10 years 2 2 5 per cent, but unfortunately 

whites have declined about 25 per cent.

The school authorities, in view of that increase in Negro 

attendance, particularly in viow of that, made a survey in 1947 

as to school requirements, approval, and so on. And they 

finally have approved a program which the record shows will cost 

about $2,500,000 in all to carry out, with about $2 million of 

that being allocated for Negro schools, and about $500,0C0 for 

white schools.

Now, among other things, one of the main things in the 

financing program was a now Negro high school in place of the 

existing Moton School. They were trying to arrange a bond Issue 

for that, but unfortunately, in April and May, there wss a two- 

week strike called in the Negro school, which the Negro principal 

claimed that he could not control. The record indicates —  and



35

the matter was argued in the District Court —  that the strike 

vas really inspired by outsiders.

However that may be, the strike came at a very unfortunate 

time. It lasted tvo weeks. But that absolutely put an end to 

any bond issue.

The school authorities then undertook to raise the money 

for the new school from the state, and the state, which does have 

ample funds in Virginia, I am glad to say, through tvo sources, 

provided all the funds required. We have vhat is called a 

Battle Fund in Virginia,which is named after our present Governor* 

Governor Battle, and I am going to refer to that a little later 

after lunch. But it is a great source of money for these pur« 

poses, and about $2 5 0 , 0 0 0 out of the $9 0 0 ,0 0 0 required for the 

nev Negro school was granted from that fund, and the remaining 

$600,000 vas made in the vay of a loan from the Literary Fund 

at two per cent.

Nov, this suit vas filed in May of last year, shortly after 

the strike, and as I said, it broke up the bond issue, but the 

state provided the funds, so that ve are in the fortunate posi­

tion of having the cash, the building is right under vay, there 

is no question about the fact from the record and from the 

decree of the Court that it is going to be completed.

The Chief Justice: Has that money been obtained, and firm

commitments made?

Mr. Moore: Yes, sir, all that has gone in the record



36

pa7

P

The Chief Justice: When?

Mr. Moore: The money vas obtained finally in June of 1951*

You see, they vere on the program of the bond issue vhen the 

strike created such a public sentiment that it vas felt that they 

could not carry that through<>

The Chief Justice: What is the present situation in regard

to the building program?

Mr. Moore: The building i3 under vay.

The Chief Justice: What do you mean by "under vay"> Mr*

Moore?

Mr. Moore: It is about 2 5 to 30 per cent complete. A firm

oontract is made. The funds are available to be dravn on from 

the state, just as the funds are needed, and the record shovs that 

there is no reason vhy the school should not be in operation, a 

better school than any school in the county or that vhole area, 

by next September.

Nov, the challenge vhich vas presented in this trial, xrhich 

required five days —  the case vas very fully heard —  vas on 

tvo grounds:

First, it vas said that on the basis of the Federal precedent, 

the segregation in the schools at the high school level violated 

constitutional standards. On that issue, the Court held, "We 

cannot say that Virginia^ separation of white and colored 

children in the public schools is vithout substance in fact or

reason. We have found no hurt or harm to either race."



37
I vas astonished at the statement that ray friend —  I vlli 

defer that until ve come back.

(Whereupon, at 2:00 o’clock p.m., the Court recessed to 

reconvene at 2 : 3 0  o5clock p.m.)



Ftrshein(l) 
im 1

Mr. Moore: May It please the Court, when the Court rose

for Its luncheon recess, I bad Just mentioned the first of two 

very Important f-hidings that we feel the trial court made here.

The first v/33 that on the basis of the record made, they 

found that the separation scheme that had been in effect in 

Virginia through these eighty years -- we cannot say that It 

was without foundation In fact or reason, and there was no hurt 

or harm to either race.

Now, there is another finding. These are set out at 

gr>eat length there in the record at pages 19 through 21, and 

the facts proved in our case presently demonstrate or potently 

demonstrate, why nullification of the cited sections la not 

warranted

In those pages of the opinion Judge Bryan, sitting with 

Judge Coble and Judge Hutcheson, had given a very much mor-e 

adequate answer, may it please Your Honor, Justice Reed, than 

our friends on the other side did to your question as to what 

was the real basis and, therefore, I was about to comment when 

we adjourned for lunch that I was very astonished at the 

comment that had Just been made that there was such a scanty 

record.

Judge Bryan, in the opinion, went back and traced the 

history of thi3 scheme to the acts of 186 9 and 187-0 in Virginia, 

with the various changes in those laws that were passed right 

during the reconst?mction period when, as everyone knows, there

38



39
was this zeal involved in protecting the Negroes* rights, but 

stemming right from the first Act of 1369-1870, the law has been 

substantially the way it is today.

Instead of President Darden of the University leaving 

the matter, as our friend on the other side suggested, if Your 

Honors would look at page 456 of the record, you will see a very 

much more illuiainating comment, where he goe3 on to show quite 
a bit about this history.

Of course, thi3 system did spring out of the systeu \*hich 

was in effect in the South before the war, but because it sprang 

out of that system it does not follow that there was any 'Intent 

to continue a form of slavery or form of servitude such as here 
argued.

He goes ahead and points out there that actually in the 

consideration of the Underwood constitution, there were twenty- 

two Negroes in the convention, and they were split eleven to 

eleven -- eleven voting against the proposal to include a 

prohibition against segregation. That was obviously because of 

the friction that x*a3 involved arising out of that period.

Now, there i3 another set of facts here tha t I b e lie v e  to 

be very pertinent V.Te observe that during the argument of our 

opponents, there was distributed among the Justices of the Court, 

two very interest Ing 3hects, which we were not ab le  to obtain 

until a few day3 ago, from the Census, and you will see from 

those sheets that the problem, as exists in these seventeen



lm 3
40

(2)

states that have segregation, and the District of Columbia, 

is a very different problem from many of the other states.

You will observe on that first sheet entitled, "Relation­

ship of White and Negro Population," that there is a factor 

of ten percent of the total population of the country today 

that is Negro, about f ifteen million, it is very interesting 

to see how that is distributed.

In the seventeen states and in the District of Columbia, 

the total population in those states that 13 Negro is twenty 

and s half percent; in all these other states it is 4.6 percent. 

But there is a concentration of the Negro population in those 

seventeen states and the District to the extent of approximately 
70 percent.

In the second sheet you will observe that there is a 

variation all the vray from about one-tenth of one percent in 

Vermont to 45 percent in Mississippi, with about 22 percent 

in Virginia, Justice Black -- that is where I was confused 

Just a moment ago, a3 you will see right there.

It is perfectly clear that that situation is a very 

pertinent thing in the consideration of this matter.

Justice Reed; Have you carried it out into the counties?

Mr. Moore: We do not have it in the counties. As a matter

of fact, we had much difficulty getting it from the Census 

people to this extent: We have got it for the county that is

in question here. I gave that just before we adjourned for



41

lunch.

Sixty percent of the school population la Negro in this 

county to forty percent white, and the total population is 

fifty-two percent Negro and forty-eight percent white.

Hay I Ju3t undertake in my remaining time to address 

myself very briefly to four questions which we believe are the 

controlling questions in this case: First, while we know that

Your Honors are so familiar with the precedents that ere here 

talked about so much, we do not feel v;e could do justice to 

this case without referring to them, at least briefly, and I 

then want to refer briefly to what we call the Virginia 

situation as shown on these facts, and, third, I want to mention 

briefly the expert evidence that became so important in this 

case and, fourthly, I wish to talk briefly sbout the point that 

Justice Frankfurter mentioned a moment ago as to what is the 

kind of decree or remedy that should be granted in a situation 

like this where, as distinguished from South Carolina, we have 

not quite got our facilities in shape, although they have been 

able to do that in South Carolina. I am going to take up those 

four matters in that order just as briefly as I can.

Mr. Davis stressed in his argument so far a3 background 

for the issue, the main issue in all these cases, tha question 

as to whether separation by law is per se a violation of equal 

protection. He stressed the legislative history primarily.

There is an equally important area, vie believe, involving



im 5
42

t

the legal precedents.

Of course, rll these casc3 come down finally to the 

question eb to whether this type of case falls over into the 

category of Gong Lum -- really that is the closest case;

Pleosy v. Ferguson is, of course, its forerunner, but do they 

fall under the doctrine of Gong Lum or do they fall under the 

Sweatt v. Painter, and McLaurin; that is the real crucial 

question.

I ®m not going to labor the point. Judge Parker has 

worked it out better than any of these other courts have. He 

has done that better, more fully, but you have got not only 

these statutes that have been passed, but this large body of 

decisions which certainly over a period of eighty years hea 

recognized that the thing that is existing here in the South, 

particularly, as you 3aw from those sheets, is a thing that 

has become a part of a way of life, as our court said in our 

case, in the South.

It is plainly based on real reason, and if that is so, 

then there is no reason why the equal facilities, equal but 

separate facilities, doctx*ine should not apply.

What the court held in Sweatt v. Painter, end in 

KcLaurin, vca that on the facts, that at that level equality 

could not be provided.

How, we took the trouble here to obtain —  there are three 

very distinguished experts that testified in our case, right on



im 6
43

' 3{
ieh fls.

that point, that there ere great differences at the high school 

level on this question as to whether equality of not only 

facilities end curricula and all can he afforded as compared 

with the graduate and professional schools.

«



mhl
Pirshein(3)

\

We did not have to rely simply upon what the Court might 

take notice of, but Your Honors will find the testimony of Dr. 

Stiles, who is the head of the Department of Education of the 

University of Virginia, a man with wide experience all over 

the country, teaching and supervising segregated schools and non- 

segregated schools, who stressed that there was a difference in 

that level at adolescent age; you find Dr. Garrett, head of the 

Department of Psychology of Columbia University, who testified 

at great length on this subject; and than Dr. Lancaster, the 

president of LongwoodL College in Virginia, stresses that situa­

tion.

Now, there the gist of their testimony was that equality 

of opportunity really could be provided and, possibly better 

provided, at the high school level with separate schools pro­

vided you had equal facilities, Just as good teachers, Just as 
good curricula, and all the facilities that go along with it.

On that basis there is no occasion to approach this matter 

from the standpoint of Sweatt v. Painter, and McLaurln.
It is shown right here definitely —  and that is what Judge 

Bryan’s opinion rests on —  it is shown by evidence that at this 

level you have not got the problem that exists at the graduate 

and professional school level.

Those gentlemen on the other side at .creat length, cite a 
?.ong line of cases in this Court which they say are pertinent, 

and which we contend are not pertinent, and I Ju3t list them and



state our position.

They mention cases like these: The Jury Duty case, the

Right to Vote case, the Right to the Pishing License, the 

Florida Park case, the Right to Participate In Primary 

Elections, the Right to Own Property, Shelley v. Kraemer, and 

then they rely upon these commerce cases, Morgan v. Virginia, 

and the recent Chance case.

Those cases are not comparable hero. There you had a 

complete denial of a right. The question of separation but 

with equal facilities and equal opportunities really did not 

exist in those cases; there was a denial, a complete denial.

What really happened, as v/e see it, in the appellant’s 

theory Is that we believe they are quite confused. They come 

here and they first make their attack In this way: They say

that the doctrine, the separation but equal doctrine, Just per 

se amounts to an offense to the Constitution, the Fourteenth 

Amendment.

Mow that, of course, as v;as pointed out in the first case 

the Kansas case yesterday, is just a direct attack on Pleasy v 

Ferguson, and the Gong Lum doctrine.

But then they come along and make a second contention. 

They say that as long as there is separation then, as a matter 

of fact, there cannot be equality, and the only basis they 

have for urging that is to draw on this so-called expert 

testimony of the psychologists, and they say that because of



46
that line of testimony you can never attain equality as a fact.

Now, in the Virginia case, we meet head on that issue. It 

may be, as some of the questions from Your Honors have in­

dicated, that, perhaps, all of that testimony may be irrelevant. 

If we Eire right in our first proposition that Gong Lum is still 

the lav/ then, perhaps, all that testimony may be irrelevant.

But we did not want to take any chances in tho Virginia case.

We knew that there was this groat body of expert opinion which 

was in conflict with that which had been presented without con­

flict in Kansas and in South Carolina, and we presented it. So 

that if, as a fact, that issue becomes important, we have mot it 

head on, and we have a finding of the Court in our favor.

May I Just refer very briefly to what, for 3hort, I may 

call the Virginia scene in Which this whole problem arises?

Of course, it is obvious that it is not Just Prince Edward 

County that is involved or Clarendon County, South Carolina, it 

is a state-wide question, and this record abounds with informa­

tion that shows that over the last twenty years there has been 

a tremendous movement springing largely with the position that 

Dr. Lancaster, now the head of Longv/ood College,, at Farmville, 

Virginia, right where this controversy arose, while ha was the 

head of the Department of Education, he saw ahead that this 

problem was going to arise in the way in which it has, and the 

state, under his sponsorship, and hi3 successors, put on thiB 

tremendous program which, perhaps, except for North Carolina, is



7̂
the greatest program in the South, of expending these huge sums 

for building up these facilities.

You have a situation today where the State of Virginia has 

every reason to be proud of what has been accomplished, although 

complete perfection has not yet been attained in every one of 

the counties and cities of the state.

Let me give you just a few figures. As Dr. Darden pointed 

out, public education somewhat dragged in Virginia until about 

1920. At that time there were only 31*000 high school students 

in the state. Today there are 155*000.

During these last ten years the state, according to this 

record, has reached the point where the Negro salaries have been 

equalized with the whites throughout; there are actually more 

four-year college graduates among the Negro teachers in Virginia 

than there are white teachers.

The Negro expenditures in this state have increased 161 

per cent as compared with 1 2 3 per cent.

According to a survey that was put in evidence in our case, 

it appeared that approximately one-half of the counties and cities 

in the state are now or within a very short time will be carrying 

out programs now in effect -- will be on the basis of as good as 

or better than the whites.

As a matter of fact, in the City of Richmond, the finest 

high school in the city i3 a Negro high school, and at 

Charlottesville there has just been completed the finest high



48

school for Negroes that there is in all that area.

Nov;, as an indication of what has been accomplished —  I 

sound as if we are trying to brag in comparison with South 

Carolina, and we do not mean it that way, but we believe these 

figures are very pertinent, Ycur Honors. We are telling that to 

you because wo have no other way of getting these facta to you 

except by telling them to you.

In Virginia v;e have put on this program that I referred to 

as the Battle Fund. It Is $60 million as compared with the 

$75 million in South Carolina.

Of that amount, $10 million have already been allocated for 

the Negroes, and $ 1 8 million for the whites. They are getting 

much more than their share.

We have this tremendous Literary Fund, as it is called in 

Virginia. We are more fortunate in Virginia financially than 

many of the states, and through that fund, loans are being made 

to these schools, with the Negroes greatly benefiting in pro­

portion.

Of the $48 million that have been loaned out of —  comparing 

the $48 million loaned for whites, are $16-1/2 million loaned for 

the Negroes at 2 per cent interest, at a 2 per cent interest 

rate.

The Chief Justice: Are those loans made to the boards of

education?

Mr. Moore: That i3 right, sir, at 2 per cent-and that was



l[C
mii6

(5)

the $600,000 in this $9 0 0 ,0 0 0 program fox'* this very high school.

So you see the funds are really right there in hand. There is

no trouble about going out with a sales tax like our friends

have to do in South Carolina.

We have got the money, and we have got a contract, and we

have got a court decree which telle us that we have got to go

ahead as quickly as possible.

Now, there is Just one more fact in this connection, and I 

am through with this point. It is very striking that in the 

four-year plan that the board of education has adopted there are 

168 projects for whites, with 73 projects for Negroes, involving 

for whites $189 million, may it please Your Honors.

Just think of what that means in taxation and in burdens 

to the people of Virginia in carrying out this program, with 

$74.5 million for Negroes. In other words, they are sharing in 

all this huge program in a ratio of about two to one, although 

their ratio in the state is only about 22 per cent.

In view of all that, the Court could not find that this 

program, so important to the welfare of the people of Virginia, 

rested on prejudice, but it represented a way of life, and it 

represented a firm determination on the part of the people of 

Virginia, because they were able to bear the burden better than 

many of the Southern states, but they were fully committed in 

good faith to provide for the Negro child just as good education 

as a white child could get, and they were doing it and, therefore,



mh(7)
the Court found that they could not find that that program 

rested on prejudice.

Now, isn't that of some importance in this matter when this 

matter reaches the stage of this Court? The trial court said that 

they found that the program rested neither upon prejudice nor 

caprice nor upon any nebulous foundation but rather the proof is 

that it declares one of the way of life in Virginia.

May I just very briefly refer to this expert testimony be­

cause, perhaps that, together with the difference in findings of 

the Court, is the most distinctive thing about this case.

We are glad to get the benefit among our brethren involved 

in the other cases, if that be appropriate, with their testimony.

We were able to profit by the trials in these other cases . 

They could have gotten the experts if they had deemed it essential 

or relevant to do it. They, proceeding in their own way, con­

sidered in the light of the decisions of this Court and the 

numerous decisions of the state courts that all that line of 

expert testimony presumably was irrelevant.

Now, the statement is made here that time after time there 

is a consensus of opinion among social scientists that segregation 

is made.

I was interested in the appendix which is signed by 6ome 

thirty-two alleged social scientists who say that that appendix 

is out on the frontiers of scientific knowledge; that is the way

50

they describe it.



mh8
51

When you examine that appendix you find that five of the 

persons who signed that appendix were cross-examined in our case, 

and the appendix is really Just an effort —  I say this without 

any lack of respect —  but it is just an effort to try to re­

habilitate those gentlemen and add to it with some other persons.

Now, it is our view that when you consider the e:qpert 

evidence on the two sides in this case, it is perfectly clear 

that the trial court was justified in finding as they did.
t

Let me Just briefly give you a description as to the kind of 

expert testimony that was presented in the Virginia case. Some 

of these witnesses apparently travel around over the country 

quite a bit testifying in these cases.

There were four principal experts for the plaintiffs in our 

case: A man named Dr. Brooks, who runs an experimental school

in New York where about 300 students attend, and he tries to get 

a cross section of the population, a certain number of whites, 

a certain number of Negroes, and a certain number of others.

He has had practically —  he had no experience in Virginia. 

He had a little experience in Georgia. He testified, in effect, 

that he felt that segregation was bad.

The next was Dr. Smith, who was a professor of psychology 

at Vassar. His chief contribution was that he considered that 

as a matter of principle segregation in the abstract was an 

official insult. That is about what his testimony finally boiled

down to.



52

One of the most interesting witnesses was Dr. Chein. He 

has written a great deal on this subject, and he testified as to 

a questionnaire that he had sent out to some 8 5 0 social 

scientists, he said, asking them two main questions: First, as

to whether or not in their view segregation was harmful to those 

segregated; secondly, was it harmful to those who did not 

segregate, and he said that the replies he got were seme 500, 

and that some 9 0 per cent of the people who answered said that it 

was bad on both groups.

We showed on cross-examination and otherwise that there were 

some six or eight thousand persons who were eligible to have that 

questionnaire sent to them; we showed that only thirty-two came 

from south of the Mason and Dixon line, and he was unable to 

show a single one from Virginia, and what you wind up with is 

that you get a statement in the air as sort of a moral principle—

it is kind of a religious statement that you get —  that, in
\

principle or in theory, in the abstract that segregation is a 

bad thing to have.

Justice Frankfurter: Mr. Moore, of what would the six or

eight thousand people be specialists in or of?

Mr. Moore: Well, there is a great line —

Justice Franlcfurter: Who are these specialists in that

field?

Mr. Moore: Well, they described them as sociologists,

anthropologists, psychologists, and variations of those groups,



mhlO

principally, Your Honor.

Justice Frankfurter: Everybody in the sociological field

is in expert in his domain?

Mr. Moore: That is right, Your Honor.

We say it does not mean a thing except as a matter of 

stating something in the abstract. You might as well be talking 

about the Sermon on the Mount or something like that, that it 

would be better —

Justice Frankfurter: It is supposed to be a good document.

Mr. Moore: Well, I say you might as well be asking people

whether it is desirable for everybody to try to live according 

to the Sermon on the Mount as to ask them the kind of questions 

that they had put to them.

Now, let ue look for a moment at the experts v/e called. We 

had eight people who testified, who were especially familiar with 

conditions in Virginia and in the South.

We started at the lower level with the superintendent of 

education, Mr. Mcllwaine, who had been the superintendent for 

over thirty years in that very area. •

We then moved up to the next level. We took the present 

superintendent of education of the state, Dr. Howard; we took 

the ex-superintendent, Dr. Lancaster.

Then we moved up to the university level. We took Dr. 

Stiles, who has had this broad knowledge and experience all over 

the country, as the head of the department of education, and then

53



took Dr.Darden, and took them, and then we followed through with 

three other kinds of experts. We called a leading child 

psychiatrist, Dr. Kelly, a leading man in all our area, who

testified and who had wide experience all over the country; as 

a matter of fact, in the war among the soldiers and what not, he 

had such experience.

We then called a clinical psychologist, Mr. Euck, who had 

had wide experience, and then —  our friends like to chide us 

with the fact that our star witness was Dr. Garrett —  they would 

have given their right eye to have gotten Dr. Garrett. Ke 

happened to be the teacher in Columbia of two of their experts, 

this very Dr.Clark who made these doll tests, and who studied 

under Dr. Garrett.

Dr. Garrett, it so happened, was born and raised very near 

this very place where this controversy arose in Virginia. He was 

educated in the Richmond public schools and at the University of 

Richmond, and then he went on to Columbia, and finished his 

graduate work, and for years has been a leading professor of 

psychology, years the head of the department of psychology, with 

some twenty-five professors and assistant professors under him, 

with wide experience as an adviser to the War Department in 

connection with the psychological tests among soldiers during 

the war.

I have not time —  my time is going by so fast, I see it is

almost gone —  and I must read you one or two things about what 

Dr. Garrett said about this thing.



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55



56
km2 history In Virginia?

Is all that to be ignored? Is that not, your Honor, 

Justice Frankfurter, a basis for classification with eighty 

year3 In this background, just as in the pilot case you 

mentioned yesterday -- I was not familiar with it yesterday 

until you mentioned it, but I read it this morning, but it 

is very important, the historical background in the light of 

tills testimony.

Justice Reeds What am I to draw from this argument that 

you are making now?

Mr. Moore: I think you are to draw —  evidently I have

not been successful, as successful as I had hoped.

Justice Reeds Perhaps I 3liould express my question a 

little more fully.

Mr. Moore s Yes.

Justice Reed: What if they had decided to the contrary?

Mr. Moore: You mean the trial court?

Justice Reed: The trial court; and your experts had

not been so persuasive as they were, and there wore other 

experts, and the trial court had accepted their conclusion 

that this was detrimental and was Injurious to the ability 

of the Negro child to learn or of the white child to learn, 

and created great difficulties, vhat difference doe3 it make 

which way they decided this particular question?

Mr. Mocre: I think you can argue the matter two ways,



57
km3

8

your Honor. I think, In tho first place, you can argue 

that the difference, for Instance, In the Kansas finding 

and the Virginia finding point up hcv important is the 

legislative policy that is involved, that Hr. Davis talked 

about so much this morning. It just illustrates hov it 

really is a policy question.

Justice Reed: I can understand that. But is it your

argument that there are two sides to It?

Mr. Moore: It illustrates there are two aides to it, and

it points up that the real crux of the whole matter is that 

there is involved fundamentally a policy question for 

legislative bodies to pass on, and not for courts.

Now, in the second place, it emphasizes, I hope, that 

the historical background that exists, certainly in this

Virginia situation, with all the strife and the history that
*

we have shown in this record, shov3 a basis, a real basis, 

for the classification that lias been nmde.

Justice Reed: There has been a legislative determina­
tion in Virginia?

Mr. Moore: That is right, sir.

Justice Reed: That the greatest good for the greatest

number is found In segregation?

Mr. Moore: That is right; with these lawmakers con­

tinuously since 1 8 7 0 doing their job to do their best In the 

general welfare.



58

lon4 It is significant that the Virginia statutes since 

1 8 7 0 have contained straight through a requirement that there 

should not only be a separation, but there should be treatment 

vith equality and with efficiency all the way through; that 

is the policy.

My time is almost up.

Justice Jackson: Suppose Congress should enact a statute,

pursuant to the enabling clause of the Fourteenth Amendment, 

which nobody seems to attach any importance to here, as far as 

I have heard, that segregation was contrary to national policy, 

to the national welfare, and so on, vhat would happen?

Mr. Moore: Your Honor, we thought of that in here, and

that is a big question, as you realize.

Justice Jackson: That is why I asked it.

Mr. Moore: Our view of the matter is that it should

not be held valid in this court; that the only effective way 

to accomplish that is to be done through an act of Congress, 

which would be by amending the Constitution.

Justice Jackson: You think that the Fourteenth Amend­

ment would not be adequate to do that?

Mr. Moore: V q do net believe so, and I have not the

time and I have no desire to engage in this very interesting 

discussion that Justice Burton and Justice Frankfurter engaged 

in, as to whether there is any difference through the passage 

of time and through progress which has been made between the



59
commerce clause and the Fourteenth Amendment.

But I would suggest In that connection that It certainly 

is much more easy to find facts that demonstrate that as 

progress has gone on, such as In Morgan v. Virginia, where 

the separation of race on the interstate busses is Involved, 

it is much easier to find facts xrtiich will show, as time has 

gone on, that there should be a different application than 

there is where a question of equal protection Is involved.

We believe, a3 Mr. Davis pointed out this morning, I 

think touching this same point, although very slightly, that 

the Fourteenth Amendment here should be viewed In the light 

of what was really intended, and what was understood by 

Congress and by the legislatures at that time.

Justice Frankfurter: 3ut Justice Jackson’s question

brings into play different questions and different con­

siderations, Mr. Moore, because the enabling act of the 

Fourteenth Amendment 13 itself a provision of the Fourteenth 

Amendment; patently Congress looked forward to implementing 

legislation; Implementing legislation patently looked forward 

to the future, and if Congress passed a statute doing that 

which is asked of us to be done through judicial decree, the 

case would come here with a pronouncement by Congress In its 

legislative capacity that In its view of Its powers, this 

was within the Fourteenth Amendment and, therefore, it would 

come with all the heavy authority, with the momentum and



60

ksn6 validity that a congressional enactment has.

Mr. Moore: That may be so, your Honor, but that is
another case.

Justice Frankfurter: That is a good ansver.

Mr. Moore: Yos, it is another case.

Justice Jackson: I wonder if it is. I should suppose

that your argument that this was a legislative question might 

have been addressed to the proposition that the enforcement 

of the Fourteenth Amendment, if this were deemed conflicting, 

might be for the Congress rather than for this Court. I would 

rather expect and I had rather expected to hear that question 

discussed. But you apparently are in the position that no 

federal agency can supersede the state’s authority in tills 

matter which, I say, you have good precedents for arguing.

Mr. Moore: Your Honor will appreciate that you have

asked a question that to try to answer adequately requires 

a lot more time than I have got.

Justice Frankfurter: I understood you to say that

that is a different case —

Mr.. Moore: That is right.

Justice Frankfurter: (Continuing) —  meaning that you

do not have an act of Congress.

Mr. Moore: That is right, sir. Mow, of course, in

the District —

Justice Jackson: What I am trying to get at is, do you



attach any importance to the fact that there is not any act 

of Congress? Apparently you do not, because there could 

not be one.

Mr. Moore: I am very glad there is not; yes, sir. I am

very pleased with that anyway.

May I just take one more minute or two? I wanted to 

take a couple of minutes on this last question that Justice 

Frankfurter asked, because it is a very important point in our 

case, and I would like to take a moment.

The question is posed as to whether or not ve are in a 

different position in Virginia rather than that in the South 

Carolina case because our building is not yet finished.

I do not think so. In line with the doctrine that your 

Honor, Justice Frankfurter, saw this Court declare in Eccle3 

v. Peoples Bank, there certainly must be seme leeway here 

in a court of equity and in a declaratory judgment proceeding.

Our friend3 on the other side, Mr. Marshall, said 

yesterday he realized there must bo a transition period. We 

are operating under a court decree vhich says, "Do that thing 

right now."

The Chief Justice: He was talking then, was he not,

about segregation, and if it should be held that segregation

per se was invalid, then he would be willing tc let some time 

pass.

But a3 I have understood him here, he says it is of the

61



62

present, and it should be here admitted presently.

Mr. Moore: Veil, the short answer here really is that

as a practical matter in the situation ve are in with the

building under construction, under the court decree, with
/

our knowing It is going to be ready in September, all we could 

really do practically would be to close the schools down 

until June, and then come* along with equality.

Now, we do not believe that is in the interest of 

anybody.

I am sorry, I have encroached a little bit on Judge 

Almondss time. Judge Almond, the Attorney General, desires 

the remainder of the time.

ARGUMENT ON BEHALF OF THE APPELLEES 

By Mr. Almond

Mr. Almond: May it please the Court, just a few

minutes are available to our side in which I would like to 

discuss with the Court what we conceive to be the historical 

background of this question in Virginia.



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64

ao 2 missionaries who came down from the North?

Mr. Almond: Yes, sir.

The Chief Justice: What funds did they have?

Mr. Almond: They were private funds.

The Chief Justice: Private funds; and private schools,

I take it?

Mr. Almond: They were private schools.

The Chief Justice: For the Negro?

Mr. Almond: For the Negro children.

But when the state took over or decided after a terrific 

conflict as to whether or not it should go into the field of 

public education, because it was the custom and tradition of 

our people prior to that time that every family should educate 

its own children —  they were opposed to the expending of 

public funds for the education of the children of our people.

But a distinguished Virginian, a Dr. William H. Ruffing, 

became the first superintendent of schools in Virginia, and 

he wrote that statute which we have before us today, providing 

that white and colored children shall not be taught in the same 

schools, but under the 3ame general regulations as to useful­

ness and efficiency.

As has been pointed out here, in the Underwood Convention 

of 1 8 7 0, when the Underwood Constitution wa3 adopted, that 

Convention was presided over by an individual distinctly hostile 

to the great majority of the white people in Virginia, and the



65
ao 3

( 1 1 )

question came before that Convention as to whether or not a 

provision would be written Into the Constitution requiring 

that the schools be mixed and operated by the state and the 

localities jointly on a mixed basis.

An amendment was offered by an eminent Negro doctor from 

the City of Norfolk: to bring that about and, to use an expres­

sion that Is frequently used In my state today, I may say to
«

the Court that the fur flew; but, as Mr. Moore has pointed out, 

there were 22 Negro members of that Convention, and on the 

vote, 11 of them voted not to have mixed schools in Virginia.

The debates in that Convention reflect what have been 

said here today relative to the mixed schools which prevailed 

in the State of South Carolina for a period of twelve years, 

and that was discussed.

That was adopted in the light of the fact that they knew 

then that in 1862 the Congress of the United States provided 

for separate schools in the District of Columbia. That was 

adopted because they knew then, and discussed that when the 

Fourteenth Amendment was submitted to the people or proposed 

on June 16, 1867, and in the great debate raging in Congress 

relative to the adoption of the enabling Civil Rights Act, 

that Congress itself had established the policy of separation 

of schools, because of the feeling that had grown as an after- 

math of that great struggle between the Staten, and because of 

the bitterness that ensued, unfortunately —  it was determined



%

ao 4 In Virginia, not ao a badge of inferiority, not to place the 

Negro man or the Negro child in the position where he could 

never rise to take his place in a free society, but the only 

way that we could have a free public school system was on a 

separate basis.

And then during the readjuster period, when impoverished 

as our public Treasury and our peoples were, it became necessary 

to use tax funds for other purposes, and the public Treasury 

and provisions for school purposes were raided to this extent, 

or diverted; and Dr. Ruffing made a big fight cn that. But 

throughout the readjuster period, and not until 1 9 2 0 did the 

people of Virginia av;aken to the necessity of improvement of 

theix» public schools.

Sad to relate, I am ashamed to say, that during many of 

those years of the past we have been grossly neglectful of our 

responsibility in bringing about equal facilities for the Negro 

race in Virginia.

In 1920 there were only 51»000 children of high school age 

in Virginia going to school, and today there are something like 

1 5 5 , 0 0 0 of them.

With that undertaking, our people have come to believe and 

to know and to feel a3 a moral proposition, if Your Honors 

please, that tho only position we can take, the one that is 

morally defensible Is that they are entitled to equal facil­

ities , and there has been launched this great program in



67
ao 5

(12)

Virginia, appropriating millions of dollars and, Mr. Moore has 

pointed out, at this time we are spending more for facilities 

for liegro children than we are for whites, and we should do it 

because we were laggards in the years past in doing what we 

should have done.

Ihe Chief Justice: General, I understood Mr. Moore to

say that it v/as a legal responsibility for Virginia to have 

the equal facilities in the statute it3elf.
Mr. Almond: In the statute itself there Is a legal

responsibility, and in the years past has not been discharged 

as it should have been discharged.

What I said about it is independently of his right that 

we should do it, it is our policy and it is our determinationj 

we ave irrevocably dedicated and our people are enthusiastically 

in support of equal facilities for Uegroes at the secondary 

level in Virginia. That is our program today, and that is the 

program that we want to go forward with, and that we are going 

forward with.

The Legislature of 1950, on the recommendation of the 

Governor, almost without a dissenting voice, appropriated 

$ 5 0 million for school construction.

The Legislature of 1952 appropriated another $15 million, 

making a total of $60 million that have been appropriated in 

those two sessions of the Legislature of Virginia to be 

dedicated almost solely toward the Improvement of facilities



68

ao 6 at the secondary level in Virginia.
The Chief Justice: Are those $60 million what you call

the Battle Fund?

Mr. Almond: That is right, Mr. Chief Justice,

The Chief Justice: What is the Literary Fund, for what

purpose and in what amount? Is it temporary or permanent?

Mr. Almond: No, sir. Written into the Constitution of

Virginia arc provisions for what we call a Literary Fund, and 

there goes into that Fund the collections of all fines that 

are paid in Virginia; they go permanently Into that Fund, and 

that is a revolving fund from which the school hoards of the 

various localities may make application for moneys for school 

purposes, principally for school conetruction, end meet certain 

minimum requirements laid down hy the State Board cf Education, 

and then they is3ue their "bonds which are held at 2 per cent 

interest by the State Board of Education; and as the interest 

comes in and the funds are paid In, It revolves, and it sclf- 

perpetuates Itself. Then it has been augmented from time to 

time by direct appropriations from the Legislature into that 

Literary Fund.

Today, as I cite frera memory, and I think the record bears
#

it out, there are loans either in actual operations or applica­

tions approved for 5,n excess of $48 million from the Literary 

Fund, which have been applied to the construction of white 

schools, and something over $ 1 2 million which have been applied



69
ao 7

/to the construction of the Negro schools.

If I may have just another moment —

The Chief Justice: All right, General, you may have five

additional minutes, and you may have five minutes for rebuttal.//
Mr. Almond̂ ': Thank you, sir.

I just want to say a word —

The Chief Justice: I do net want to penalize you by my

questions.

Mr. Almond: I just want to say a word, if Your Honors

please, relative to the impact of a decision that would strike 

down, contrary to the customs, the traditions and the mores of 

what we might claim to be a great people, established through 

generations, who themselves are fiercely and irrevocably 

dedicated to the preservation of the white and colored races.

We have had a struggle in Virginia, particularly from 1 $ 2 0  

on, to educate our people, white and colored, to the necessity 

of promoting the cause of secondary education.

We think we have had great leaders to develop in that 

field. One, Dr. Dabney Lancaster, now president of Longwcod 

College, I think, made himself very unpopular because he ad­

vocated and fought tooth and nail for the equalization of 

salaries between white and Negro teachers.

That has been accomplished. The curricula have been ac­

complished; facilities are rapidly being accomplished, and our 

people, deeply ingrained within them, feel that it is their



1

8 custom, their use and their wont, and their traditions, if

(13) destroyed, as this record shows, will make it impossible to

raise public funds through the process of taxation, either at 

the state or the local level, to support the public school 

system of Virginia, and it would destroy the public school 

system of Virginia as we knot/ it today, That i3 not an idle 
threat.

Then, too, a thing that concerns us —

The Chief Justices General, in what way will it destroy
it?

Hr. Almond: It would destroy It, Mr. Chief Justics, be­

cause we must have —  It 13 a costly proposition —  money with 

which to operate the public school system at both the state 

level and the local level, and the only source of income, of 

course, is the source of taxation at the 3tate and local level, 

and bond issues at the local level, and the people would not 

vote bond issues through their resentment to it.

I say that not as a threat.

Then, another thing, we have 52^3 I'Jegro teachers in the 

public school system of Virginia on an average of splendid 

qualification. That 52̂ -3 exceed the Negro teachers In all of 

the 31 states of this Union, where there is not segregation by 
lav/.

They would not, as a hard fact of realism, and not in a 

spirit of recrimination do I say this, but simply as hard stark

70



71
ao 9 reality —  those Negro teachers would not be employed to-teach 

white children In a tax-supported system in Virginia.

Now, I know they tell us "Why didn't you raise that voice 

when the Negro was admitted to the University of Virginia?"

I did not raise it. I advised the University oi Virginia 

that they had no defense, and I sat down with distinguished

counsel in this case and agreed to the stipulations and helped
\

prepare the decree that was entered by the Court, and there was 

no evidence taken on it.

But here there is a. distinction, if Your Honor please, 

with 22.7 per cent of our population, the Negro population, 

with 59 per cent of the school population of Prince Edward 

County Negro population, to make such a transition, would undo 

what we have been doing, and which we propose to continue to 

do for the uplift and advancement of the education of both 

races. It would stop this march of progress, this onward 

sweep.

I thank you.

The Chief Justice: Mr, Robinson, you understand that

you have five additional minutes.

REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS

By Mr, Robinson

Mr. Robinson: In addition to the time that was reserved

to me, yes



ao 10 May It please the Court, in addition to the evidence in 

the record to which I have referred the Court to answer a 

question put to me by Mr. Justice Reed upon the opening argu­

ment, I should also like to request the attention of the Court 

directly to our statement as to jurisdiction, pages 9 to 1 1 , 

where we did undertake to incorporate some historical evidence 

which we thought ’would be of value on the question of the basis, 

the original basis, of the segregation legislation, data which 

are not contained in the record in the case.

Examination of thi3 material will Indicate that prior to 

the time of the Civil War, as a consequence of the Dred Scott 

decision, the Negro did not enjoy citizenship rights equal to 

those enjoyed by a white person.

As a matter of fact, in that case the Court had decided 

that he possessed no rights which a white person wa3 bound to 

respect at all.

And so it goe3 that after the Civil War, and even after 

the Negro was affirmatively granted full and equal citizenship 

by the Thirteenth and Fourteenth Amendments, and even though 

his r*ight to suffrage was given protection by the provisions 

of the Fifteenth Amendment, the white South was not content 

with this constitutional change. Consequently, we had the 

so-called period of the “Black Codes", which were a body of 

laws which were expressly intended and indeed did accomplish 

the disability of the Negro.

72



73
ao 11 Examination of the records of the Constitutional Conven- • 

tions of the 3outhern States during the period that legislative 

education of segregation had Its beginning, gives, as I stated 

thi3 morning, a reliable indication that the real basis of this 

legislation was not what it has been stated to this Court it 

Is, but rather that the segregation laws themselves were in­

tended to, and have, in fact, In Virginia accomplished, a mat­

ter which I shall get to in just a few minutes —  were Intended 

to limit the educational opportunities of the Negro, and x>lace 

him In a position where he could not obtain in the state's 

educational system opportunities and benefits from the public 

educational program equal to those which flowed to white students,

We have Incorporated In our statement as to jurisdiction 

as one piece of evidence specifically referable to Virginia, 

the report of the proceedings during the debates at the 1 9 0 2  

Constitutional Convention over one of the provisions which was 

then up for discussion, a resolution that state funds for 

schools must be used to maintain the primary schools for a 

certain period of time before these fund3 could be used for 

the establishment of high schools or indeed grades beyond the 
higher grades.

The question was then asked as to whether or not the effect 

of this provision would be to tend to prevent the establishment 

of schools in sections of the country where such schools ou^it 

to be prevented, and the eminent Mr. Carter Glass answered the



-4

ao 12 question by pointing out that this provision had been consider­

ed, that there was a discussion of this demand, stating as he 

did —  and these are hl3 words:

"Certainly, In my judgnent, a very reasonable demand, 

that the white people of the black sections of Virginia 

should be permitted to tax themselves, and after a cer­

tain point has been passed which would safeguard the 

poorer classes In those communities, divert that fund 

to the' exclusive use of the white children. 11 

It was at the same Constitutional Convention that Senator 

Glass made the statement that discrimination was one of the 

purposes for which the Convention was called —  I am speaking 

about discrimination over in the area of suffrage —  and it 

was at this very same Convention that he said that one of the 

purposes of the Convention was to discriminate to the very 

extremity of permissible action under the limitations of the 

Federal Constitution, with a view to the elimination of every 

Negro voter who can be gotten rid of legally without materially 

impairing the numerical strength of the white electorate. The 

so-called Virginia picture bears out this purpose.

I would like to ask the Court's attention —  Invite the 

Court's attention —  to the data which we have incorporated in 

our reply brief commencing at page I k  the data pertaining to 

the present and the future educational system la Virginia.

Although Negroes constitute or they did constitute in ^



ao 13

pa(l5)fla.

1950-51» 26 per cent of the total number of pupils enrolled 

In the schools of the Commonwealth, they did not receive, when 

measured on a dollars and cents basis, anything like their fair 

share of the educational fund3, anything like their fair share 

of the school property employed by the Commonwealth In its 

educational program.

Ute have set forth there data to demonstrate that for each 

dollar Invested In each category per Kegro studont, the invest­

ment for the 1950-51 3chool session per Kegro student was 6l 

cents In sites and buildings, 59 cents In furniture end equip­

ment, 67 cents in buses, and 6l cents in total 3ohool property. 

That Is the situation in Virginia.

It was a situation in Virginia as we were able to present 

it up to the latest possible point at the time of the trial of 

this case.

Justice Jackson: I hope you will take time enough before

you finish to tell me what your position is about the provision 

of the Fourteenth Amendment, that Congress pas3 appropriate 

legislation to enforce it, and what effect, if any, it has on 

these cases.

75



76

Firshein(15) 
PA1 fls ao

/

Mr. Robinson: That are now before the Court, sir?

Justice Jackson: Yes, cases of this character.

Mr. Robinson: I will be glad to do thet, Mr. Justice

Jackson, right now.

I disagree with counsel for the appellees that Congress does 

not have full power under Section 5 of the Fourteenth Amendment 

to enact legislation that would outlaw segregation in state 

public schools.

But I do feel that insofar as the present cases are con­

cerned that has relatively little merit.

We come before this Court presenting what we consider to 

be justiciable questions, questions that are not essentially 

different in character from those which have been presented in 

cases which in the past have been brought here.

In other words, I do not feel that the mere fact that under 

the authority of Section 5 of the Fourteenth Amendment Congress 

could enact legislation which v/ould settle this problem would 

in any way encroach upon the jurisdiction of this Court, if, as 

a matter of fact, a violation of the Constitution has been shewn.

Justice Jackson: Of course, in the jury cases you have

legislation by Cougress; in the interstate commerce cases you 

have legislation by Congress.

Mr. Robinson: That is correct, 3 ir.

Justice Jackson: In a good many of our cases, but not all,

you are quite right, that some do have them. But in a number of



77

pa 2

it?

cases they rest on specific statutory implementation of this 

amendment.

r Mr. Robinson: Yee. I would like to make —

Justice Douglas: What statute of Congress regulates juries?

Mr. Robinson: I think it is Section 47 of Title XIII of
f .

the United States Code, I think it ia; I have forgotten.
/ /
Justice Jackson: I pointed it out in a dissenting opinion

some time ago, but Justice Douglas apparently did not read my 

dissent.

Mr. Robinson: I do not remember the exact number, Mr.

Justice Douglas, but it is up in Title XIII, and, ss I recall, 

it is somewhere in the forties; it is in the forties section.

I v;ould like to make reference to this --

Justice Douglas: Has the Court ever held that the Four­

teenth Amendment is not executed unless Congress act3?

Mr. Robinson: Wo, I do not think so.
i

There is a large area of law which has been developed by 

this Court in vrhich the decision has rested upon the provisions 

of the due process and equal protection clauses, and in a few 

instances of the privileges and immunities clause where there 

was not any implementing legislation by Congress.

As I understand the theory, particularly a3 it came a3 a 

consequence of the civil rights cases, that authority was there 

that Congress could exercise, if it desired to do so, but the 

position which wc urge upon the Court is the more fact that



78

pâ?

16

Congress has not done it will not preclude this Court from 

deciding constitutional questions.

I can make inference, for example, to the situation which 

was recently presented to this Court in the so-called restrictive 

covenant cases, and in those cases we had a piece of legislation 

involved that was Section ^2 of Title Jill of the United States 

Code.

This Court nevertheless held that a state court enforcement 

of those restrictions resulted in the denial of the equal pro­

tection of the laws, notwithstanding the fact in that situation 

we did have a case in which Congress, under its authority con­

ferred by Section 5 of the Fourteenth Amendment, might have 

outlawed the thing, to start off with, so that the question 

might never have gotten to this Court.

Justice Reeds But if segregation is not a denial of equal 

protection or due process, legislation by Congress could do 

nothing more except to express congressional views, and wouldn’t 

that be decisive?

Mr. Robinson: Yes, I am inclined to —

Justice Read: So you would be forced to decide whether or

not segregation per so comes under that question.

Nr. Robinson: Of course, that is our position here, sir.

Justice Frankfurter: The Fourteenth Amendment is not unlike,

in some aspect, the commerce clause. There are many things that 

the states cannot do merely because the commerce clause exists.



79

There are many things that a state can do until Congress steps

in.

Mr. Rohlnson: That Is right, sir. Under those circum­

stances —

Justice Reed: The state cannot violate the Fourteenth

Amendment.

Mr. Robinson: I beg pardon?

Justice Reed: The stato cannot violate the Fourteenth

Amendment.

Mr. Robinson: That Is right, and I was just about to observe

that it cannot violate the commerce clause either.

Justice Frankfurter: We would not be arguing for ten hours

If It Is clear that this is a violation of it. We do not argue 

for ten hours a question that is self-evident.

Mr. Robinson: I understand, sir.

Now, going back to the so-called Virginia picture, reference 

was made end questions VGre asked concerning the Literary Fund 

allocations, the approximately $ 6 0 million allocated by the 

state Literary Fund for school construction in the state.

We have pointed out in our reply brief,and wc have demon­

strated statistically, that even with this large expenditure, 

when you add it to the present value of buildings and sites the 

ratio of investment in school property in Virginia will be in­

creased from the present 61 cent3 to only 7’* cents per Negro

st udent



80

I should like to al30 emphasize the fact that no time has 

been set for* the completion of these projects and, consequently, 

we do not even know when the ratio Is going to be realized; but 

even If all of the Negro projects which are proposed are com­

pleted, and even though no additional money whatsoever 13 In­

vested In white schools, the amount of money of money Invested 

In buildings and sites per Negro student over the entire state 

would only be $3^3 . 3 0  as compared with $3 6 6 .7 3 that are already 

Invested in school property per white Btudent.

So, consequently, the Literary Fund program, the construc­

tion which is expected to develop out of the Literary Fund 

allocations would not seem to bring about this equality even of 

physical facilities within any point in the near future.

Reference was made in this case also to the so-called four- 

year program. That is a program that has been developed, and 

that contemplates the expenditure of some $ 2 6 3 million for new 

construction and improvements, and it has been emphasized tliat 

71.7 per cent of this money will be spent on white projects, and 

28.3 per cent on Negro projects, and the emphasis is placed ther 

by reason of the fact that the percentages of expenditures are 

slightly in excess of the percentages of school population.

The money for this program, as the record clearly shows, 

is not now available, and even if the money were available, and 

the entire program were completed by 1S56, the amount invested 

in sites and buildings would only be 79 cents per Negro student



81

pa6

(17)

for each dollar per white student, and thus, I urge the Court 

this is a very vast program«

Virginia does not have the money for it now. Even though 

Virginia could spend $ 2 6 3 million «=- an enormous sura by Virginia 

standards —  all that ve succeed in doing is moving from a 

present 6l cents to 79 cents per Negro student for each dollar 

that is invested in buildings and sites for vhite students.

The Chief Justice: Have you got any breakdown as to the

number of school buildings that have been constructed in the 

last, say, five years? I heard about the high school of Richmond 

and Charlottesvilleo 1 am fearful that this percentage business 

does not make it very clear to me because it is a question of 

the number of schools; it is a question of how the students are 

grouped, as to whether they are getting the fair "divvy", I 

might say.

Mr. Robinson: Yes, Mr. Chief Justice.

Now, maybe I can help. On the Literary Fund allocations 

that I was talking about just a few minutes ago, the evidence at 

the time of the trial shoved that there had been projects —  no, 

it does not give the number of schools. It simply shows the 

scope of the program, that is, the number of cities and counties 

over which the construction would extend.

If your Honor will Indulge me just a moment, I will look 

at the exhibit. If we have it in the record at all, might I

mice this suggestion: There are a large number of exhibits in



82

pa 7 this case, and all of this statistical information is contained 

in those exhibits*

Those exhibits are before the Court. If the Information is 

available at all it will be found there.

We have in our reply brief a specific pointed and detailed 

reference in each case where ve get to one of these particular 

things. I do not recall that the precise information concerning 

vhich your Honor has asked me does appear in the record.

The Chief Justice: It would seem to me that If it did

appear It vould either sho»/ a stepped-up program or maybe retro- 

gression in respect of the —  if you had the breakdovn it vould 

something.

Mr. Robinson: Well, the appellees do insist that this is,

in other vords, a stapped-up program.

The Chief Justice: Do I understand that you would take the

same position that Mr. Marshall vould take if ve were to hold 

that segregation per se was unconstitutional in regard to the 

time element?

Mr. Robinson: On the matter of necessity of the adminis­

trative problem in these segregated —  oh, yes.

The Chief Justice: Then why, If you take that position

there and I assume you take it as a matter of necessity —  

why do you not take that position here under the equal facilities 

doctrine?

Mr. Robinson: If your Honor please, I think that there is



83
a difference betveen a postponement of a right and a delay 
vhich is incidental to affording the remedies that ve asked for.

I do not think that it vould be possible vlthout encroaching 

upon the previous decisions of this Court, to take the position 

that notvithstanding a present denial of the constitutional 

rights of the appellants, that notvithstanding that they must 

vait until the state gets around to fixing the schools.

The Chief Justice: Of course, I take it, that you recognize

the distinction in the cases in regard to the number of students 

affected, and all that sort of thing, but if you agree that a 

reasonable period of time should be granted if ve held segregation- 

vas unconstitutional, I just vonder vhy you take the position you 

do in regard to the equal facilities, unless you say that that 

stepped-up program is just not sufficient to meet the situation.

Mr. Robinson: Ve do take the latter position, if your

Honor please, and ve have set forth — * and since my time is just 

about up I can only now refer the Court to the data vhich ve 

have set forth in our reply brief in that connection, in vhich 

ve point that this stepped-up program of this state is not going 

to produce even physical equality on a state-vide basis at any 

time in the near future, and ve tried to calculate that time as 

best ve could from the available information.

Nov, with respect to the other portion of your Honor’s 

question, our position on it is simply this: I appreciate the

fact that even though there has been a violation of legal right,



in affording a remedy it may be necessary and it may be entirely 

necessary for there to be some delay incidental to the affording 

of that remedy.

A case that I can think of is if a court should decree 

specific performance of a contract to tear dovn a house, the man 

has got to have a reasonable opportunity to get the house dovn0



RTL
fws
pa But I do not think In that particular case If the man 

Is entitled to that decree -

The Chief Justice: A man might have to have a reasonable

opportunity to get out of the house before it is torn down.

Mr. Robinson: 1 agree with that, too.

In other words, we have the administrative practical 

problem arising from the affording of the remedy, and to 

that particular situation and to that particular extent, of 

course, wo readily recognize some lapse of time. I am not 

In a position to suggest what it should be.

I think it is an administrative problem initially, at 

least, for the school authorities to work out. We appreciate 

that, but I do not see how wo can, without encroaching upon 

the body of decisions of this Court which have established 

the rights involved in these cases, as present and personal, 

as to how we can say that notwithstanding that,we may delay 

the right; in other words, that a person must bo compelled 

before he can get satisfaction of his rights --he may be 

postponed at some time into the future before lie can get 

what the Constitution entitled him to, and what his white 

counterparts are getting already.

The Chief Justice: Now, take the South Carolina case.

Would you say that, assuming the equal-facilities rule will 

still continue, would you say that the lapse of time in their 

construction program was not fully justified by the lower

1
85



2

court?

Mr. Robinson: Well, X -would have to answer that ques­

tion, if Your Honor please, this way: I do not personally

feel, and I oould not urge upon the Court that suspension of 

the satisfaction of a constitutional right is ever justified. 

In other words, I would —

The Chief Justice: But you realize you are in equity;

you realize that you have got the rights of other people in­

volved in regard to dislocation?

Mr. Robinson: I appreciate that.

The Chief Justice: And in the South Carolina case thereI-
was some delay, butwe are told here that when the new build- ■

r

ings were constructed and occupied in September -- I recall 

there was some effort, special effort, made to get the 

material to build the gymnasium —  at one time they thought; 

they would not get it, but they worked around and got it for 

the gymnasium.
Mr. Robinson: Yes. As I understand the separate-but-j j

equal rule, even under that, at that particular time, at the 

time of the first hearing when the facilities were -- 

The Chief Justice: All right, go ahead.

Mr. Robinson: —  unequal, the court should, Instead of If

entering an equalization decree, should have removed the 

segregation. That is what this Court said in the Gaines 

case is the consequence of trying to maintain segregation

86



3

where you do not have equal physical facilities.

The Chief Justioe: Well, the Court did not --

Mr. Robinson: The Court did not under those circumstances,

and I say that at that particular point what the Court there ' 

was doing, the Court was not simply delaying the thing for 

purposes which would be incidental to giving to the plaintiffs 

the relief vhich, under that doctrine, they were then entitled 

to.

The Court w&3 delaying it until conditions could be 

remedied in such a way that under the separatc-but-equal 

doctrine, if limited to that particular point, they would 

not be entitled to any relief at all.

The Chief Justice: Well, now, what is ycur view in

regard to the way it was handled by the lower court?

Mr. Robinson: In the Virginia case?

The Chief Justice: Wo, in the South Carolina case,

considering that they ruled segregation per se not unconsti­

tutional? Do you have objection to that method of handing it?

Mr. Robinson: Well, if the Court should male —  I want

to make certain —

The Chief Justice: Well, they did rule. I say so far as

they are concerned, they did so rule.

Mr. Robinson: Yes. I am just trying to understand Your

Honor's question.

The Chief Justice: Would you say that under the circum-

87



88
stances In the South Carolina case, having ruled on the 

segregation question as they did, that immediately, eo 

instant!, they should have said, "entry into white schools" 

or seeing the imminent construction that they should continue 

as they did?

Mr. Robinsons Not the latter, if you pleasej the former, 

taking into consideration that immediately would not mean 

five minutes from now.

The Chief Justice: Well, now, how many minutes, how

many days? That is the point.

Mr. Robinson: I would not be able —  I have tried to

make plain that I consider that that is an administrative 

problem, and that gets into things that, frankly, I do not 

think that I am able to answer.

The Chief Justice: What about the courts?

Mr. Robinson: I do not think that courts are, either.

In other words, my position in that particular regard le 

that they are entitled to the relief inmiodiately which should 

be afforded them just as soon as expeditious administrative 

arrangements can be made to unsegregate the schools, as 1 

understand the Caines and the subsequent cases, the doctrine

of those cases, requires.
For these reasons, we respectfully submit that the 

decree of the District Court should be reversed.

(Thereupon, the argument in .the above-entitled cause was 
concluded.)