Lawler v. Alexander Brief of Appellee

    I

IN TH E

upmtt? (Eourt nf tl|p Umtpfc States
O ctober T erm , 1949.

No. 44.

H em an  M arion Sw e a tt , Petitioner,

v.
T heophilu s  S h ick el  P ain ter  et a l .

On a W rit of Certiorari to the Supreme Court 
of the State of Texas.

BRIEF OF AMICI CURIAE IN  SUPPORT OF 
PETITIONER

T homas I. E merson 
John  P. F ran k  v 
A lexander  H. F rey 
E rw in  N. Griswold 
R obert H ale 
H arold H avighurst 
E dward L evi

F or t h e  Comm ittee  of L aw  
T eachers A gainst  Segregation 
in  L egal E ducation



IN DEX

Statement ............................ ....................................-............................  1
Summary of Argument........................................................................ 3
Argument

I. The Equal Protection Clause Was Intended to Outlaw
Segregation ............— .............................. ...................... ...... 4
1. The original meaning of equal protection is incom­

patible with segregated education...................... -........  5
3. Contemporary rejection of “ separate but equal” in 

Congress, immediately before and after the Four­
teenth Amendment, represents a judgment incom­
patible with segregated education...................... ......... 11

3. In Railroad Co. v. Brown, this Court early decided
that “ separate”  could not be “ equal” .................... ......... 18

4. Plessy v. Ferguson, which undid the Brown case and
the legislative history of equal protection, should be 
overruled ................:............................................. - .......... 30

II. The Basic Policies Underlying the Court’s Approval of 
Segregation in Plessy v. Ferguson Have, in the Years 
Intervening Since That Decision, Proved to Be Not 
Only Wholly Erroneous But Seriously Destructive of
the Democratic Process in the United States..................  33
1. The judgment of the Court in Plessy v. Ferguson 

that direct governmental action to eliminate segre­
gation is ineffective to overcome the prevailing cus­
toms of the community has proved to be without
foundation .............................................................. -........ 33

3. Patterns of segregation have not tended to produce 
harmonious relations between races, as the Court 
assumed in Plessy v. Ferguson, but have increased 
tensions and become progressively destructive of the
democratic process in the United States................ ...... 39

3. This Court has ultimate responsibility, under the 
Constitution, to review the factual and policy judg­
ment of the Texas legislature in this situation.......... 33

III. Segregation Should Not Be Extended to Education.......... 34
1. The precedents do not uphold segregated education 34 
3. Under the rule of reason created by the precedents, 

segregation is unreasonable........................................... 35
IV. Equal Facilities for Legal Education Have Not in Fact

Been Offered to Sweatt and, Indeed, Segregated Legal 
Education Cannot Under Any Circumstances Afford 
Equal Facilities. Hence Petitioner Has Been Denied 
Equal Protection Even Within the Broadest Application
of Plessy v. Ferguson.........................................................  38

Conclusion ........................   47
Appendix A ........................ .....................................-.............................  49

Page



Index Continuedii

CITATIONS
Page

Cases :
Baylies v. Curry, 128 111. 287, 21 N. E. 595 (1889).................... 19
Berea College v. Kentucky, 211 U. S. 45 (1908).—.............. .— 34
Buchanan v. Worley, 245 U. S. 60 (1917)........ ..........................  34
Civil Rights Cases, 109 U. S. 542 (1883).......................... ...........  4
Cumming v. Richmond County Bd., 175 U. S. 528 (1899)... 34, 35
Ex parte Garland, 4 Wall. 333 (1867)........................................... 14
Ex parte McCardle, 7 Wall. 506 (1869)............................ ..........  14
Fisher v. Hurst, 333 U. S. 147 (1948)...................................... 35, 39
Gong Lum v. Rice, 275 U. S. 78 (1927)...... ........................... .34, 35
Henderson v. United States, (No. 25, Oct. Term, United States

Supreme Court).................. ......................._................................ 31
Jones v. Kehrlein, 47 Cal. App. 646, 194 P. 55 (1920).............. 19
McCabe v. Atchison, Topeka & Santa Fe, 235 U. S. 151 (1914) 40
McPherson v. Blacker, 146 U. S. 1 (1892)..................................  16
Missouri ex rel, Gaiines v. Canada, 305 U. S. 337 (1938) 35, 39, 40
Morgan v. Virginia, 328 U. S. 373 (1946)........:.......................... 25
New York Trust Co. v. Eisner, 256 U. S. 345 (1921)................ 23
Perez v. Sharpe, 32 Cal. 2d 711, 198 P. 2d 17 (1948)................ 40
Plessy v. Ferguson, 163 U. S. 537 (1896)................3, 4, 14, 20-4,

25, 29-30, 32, 33, 34, 35, 36, 38, 39
Railroad Co. v. Broim, 17 Wall. 445 (1873).... ........... 3, 18-20, 22
Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849)... 5, 14, 15
Sipuel v. Bd. of Regents, 332 U. S. 631, sub nom. Fisher v.

Hurst, 333 U. S. 147 (1948)...................................................35, 39
Slaughter-House Cases, 16 Wall. 36 (1873)............................. . 14
Smith v. Allwright, 321 U. S. 649 (1944)....................................  24
State v. McCann, 21 Ohio St. 198 (1872).............. .................... 15
United States v. Carotene Products, 304 U. S. 144 (1938)...... 33
United States v. Harris, 106 U. S. 629 (1883)............................  4
West Virginia State Bd. v. Barnett, 319 U.S. 624 (1943).......  33

Statutes :
Civil Rights Act of 1866, 14 Stat. 27 (1866).............................  8
Civil Rights Act of 1875, 1.8 Stat. 335 (1875).............................  14
12 Stat. 805 (1863)....................................................................... 11, 18
13 Stat. 537 (1865).........................................................................  11
16 Stat. 3 (1869)................... ..........................................................  13
Mass. Acts 1845, c. 214............. .......................... ........................... 5
Mass. Acts 1855, c. 256.................................. .................................. 7
Rule 1, Texas Rules of Civil Procedure (Vernon 1942).......... 46
Rules of State Bar of Texas, Art. 3, § 1, 1 Tex. Stat. 696

(Vernon 1947)............................ ........................................ .......  46



Index Continued iii

M iscellaneous :
Page

Exec. Order 9981, Fed. Reg. 4313 (1948).................................. 27
103 A. L. R. 713............................... .....- ......................................... 40
American Civil Liberties Union, 29th Annual Rep., In The

Shadow of Fear (1949)............................... .............................  29
American Freeman, The (1866)........................ .........................  13
Association of American Law Schools, Teachers’ Directory

(1949-50) .............................. ..........................-...........................  41
Cong. Globe, 38th Cong., 1st Sess. (1864).......................... 7, 11, 12
Cong. Globe, 39th Cong., 1st Sess. (1865-6)............7, 8, 9, 10, 11
Cong. Globe, 40th Cong., 2d Sess. (1867)..................................  13
Cong. Globe, 41st Cong., 2d Sess. (1870)..................................  13
Cong. Globe, 41st Cong., 3d Sess. (1871)................................ 14, 15
Cong. Globe, 42d Cong., 1st Sess. (1871)..................................  15
Cong. Globe, 42d Cong., 2d Sess. (1871-2)..................... 14, 15, 17
2 Cong. Rec., 43d Cong., 1st Sess. (1874)....................... 15, 16, 22
3 Cong. Rec., 43d Cong., 2d Sess. (1875)..................................  17
Garrison, Address, 8 Am. Law School Rev. 592 (1936)............ 45
Letter of Salmon Chase to Charles Sumner, dated Dec. 14,

1949 ......................................... ..... ....... .........................................  6
Letter of Senator Morrill to Charles Sumner, undated (prob.

Oct. or Nov. 1865).....................................................................  8
Letter to Thaddeus Stevens, dated Nov. 1, 1865........................  7
Massachusetts Const. Art. I l l  (1780)........................................... 9
Maine Const. Art. I, § 3 (1819)........................... ........................ 9
New Hampshire Const. Art. V I (1792)....................................... 9
New York State Comm’n Against Discrimination, 1948 Report

of Progress......................................................................................  28
President’s Commission of Higher Education, Higher Educa­

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

These Rights (1947)........................ ...........................25, 26, 27, 35
Resolution of Providence, R. I., Union League Club (1865) 7
Sen. Rep. No. 131, 40th Cong., 2d Sess. (1868)............. ........... 19
Special Report, Commissioner of Education on Condition and 

Improvement of Public Schools, Dist. Col., H. R. Exec.
Doc. No. 315, 41st Cong., 2d Sess. (1870)... ....................... . 12

United States Fair Employment Practice Committee, Final
Report (1946)........     27

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

(1949-50) ....................................................................... 2, 41, 42, 44

T reatises ani> A rticles:
Abrams, Race Bias in Housing (1947)......................................... 26
Abrams, The Segregation Threat in Housing, 7 Commentary 

123 (1949)..... .......................... ...................... ........... .................. 26



IV Index Continued

American Council on Education, Thus Be Their Destiny
(1941) ...............................    31

American Council on Education, Color, Class and Personality
(1942) ............................................................................................  31

American Management Association, The Negro Worker
(1942) ..................................................................  28

Article, U T Institutes Placement Service, 12 Texas Bar Jour­
nal 208 (1949)..........................................................................................................  43

Beard, The Rise of American Civilization (1935)....................  10
Bellson, Labor Gains on the Coast, 17 Opportunity 9 (1939) 29
Benedict, Transmitting Our Democratic Heritage in the

Schools, 48 Am. Jour. Sociol. 722 (1943)............................ 36, 37
Boutwell, Reminiscences of Sixty Years (1902)........................  10
Boyd, Some Phases of Educational History in the South Since

1865, Studies in So. Hist. 259 (1914).....................................  13
Boyer, The Smaller Law Schools, 9 Am. Law School Rev.

1469 (1942)........................     42
Bowen, Divine White Right (1934)............................................... 31
Brubacher, Modern Philosophies of Education (1939)............ 37
Comment, 56 Yale L. J. 837 (1947)............................................. 28
Commission on Discrimination in Employment, New York 

State War Council, Breaking Down the Color Line, 32 Man­
agement Rev. 174 (1943)...........................................................  28

Curry, Brief Sketch of George Peabody (1898)........................  17
Curti, The Social Ideas of American Educators (1935)........36, 37
Dewey, Democracy and Education (1916)..................................  37
Flack, The Fourteenth Amendment (1908)................................  10
Fleming, Documentary History of Reconstruction (1906) 7, 12, 17 
Frasier and Armentrout, An Introduction to Education (3d

ed. 1933).................................................................................    37
Gifford, The Placement of Law Students and Law Graduates,

9 Am. Law School Rev. 1063 (1941)..........................................  43
Gillmor, Can the Negro Hold His Job?, National Association

for Advancement of Colored People Bull. (Sept. 1944)..... 28-9
Grosvenor, 24 New Englander 268 (1865)................................  7
Horne and Robinson, Adult Educational Programs in Housing 

Projects with Negro Tenants, 14 J. Negro Educ. 353 (1945) 26
Jackson, The Product of Our Present-Day Law Schools, 9

Am Law School Rev. 370 (1939).......................................... 41, 46
James, The Framing of the Fourteenth Amendment (1939)...  7
Kallen, The Education of Free Men (1949)............................ 37, 38
Key, Southern Politics (1949).......................................................  24
Kilpatrick (E d.), The Educational Frontier (1933).................. 37
Knight, The Influence of Reconstruction on Education in the

South (1913).................................................................................. 12
Lewin, Resolving Social Conflicts (1948)..................................  37
Maclver, The More Perfect Union (1948).............................. 32, 38
McPherson, Handbook of Politics for 1868 (1868)..................  7

Page



Index Continued v

Page
Manning and Phillips, Negroes as Neighbors, 13 Common

Sense 134 (1944)...... .......................-............. ....-...........-........... 26
Mayo, The Human Problems of an Industrial Civilization

(1933) ................ ...........................- .................- .......— ..............  37
Merriam, The Making of Citizens (1931)......._   -............... 36
Miller, Thaddeus Stevens (1939)  ............................. ~~..............  10
Morrison and Commager, The Growth of the American Re­

public (1942).................... ........................- ..........- ....—...............  10
Moylan, Selected List of Books for the Small Law School

Library, 9 Am. Law School Rev. 469 (1939)................ ........  42
Murray (E d.), The Negro Handbook (1949)............. ..............  25
Myers and Williams, Education in a Democracy (1942).............. 36
Myrdal, An American Dilemma (1944)........................ -............. 31
Nason, Life of Henry Wilson (1876)......................................... 5
Newlon, Education for Democracy in Our Time (1939).......... 38
Newman, An Experiment in Industrial Democracy, 22 Oppor­

tunity 52 (1944)._................................... -....................................  28
Northrup, Proving Ground for Fair Employment, 4 Commen­

tary 552 (1947)..........................................................-................  28
Note, 49 Col. L. Rev. 629 (1949)....................... - .......................  31
Note, 56 Yale L. J. 1059 (1947)...............................................30, 31
Note, 58 Yale L. J. 472 (1949)........................ - ..........................  31
Ottley, The Good-Neighbor Policy— At Home, 2 Common

Ground 51 (1942)........................................................................ 26
Patterson, The Legal Aid Clinic, 21 Tex. L. Rev. 423 (1943) 44
Pound, Social Control Through Law (1942)..............................  46
Ross, They Did It in St. Louis, 4 Commentary 9 (1947).......  29
Ross, Tolerance by Law, 195 Harper’s Mag. 458 (1947).......... 28
Rostow, Liberal Education and the L aw : Preparing Lawyers 

for Their W ork in Our Society, 35 A. B. A. Jour. 626
(1949) ........................ ..................-................................................4:4-5

Simon, Causes and Cure of Discrimination, N. Y . Times, May
29, 1949, § 6, p. 10.................... .............................. ....................  28

Sumner, Works (1874).................................. .............. ......- .......... 6, 8
Sweetland, The CIO and Negro American, 20 Opportunity 292

(1942) .........................-...................... - ................ ............. ........r  29
Taylor, Negro Teachers in White Colleges, 65 Sch’l and Soci­

ety 369 (1947)......................... ...................................................... 26
Warren, The Supreme Court in U. S. History (1926)------- ........ 21
Westermann, Between Slavery and Freedom, 50 Am. Hist.

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

So. Hist. 349 (1945)..................................................................  12
Wirth, Segregation, 13 Encyc. Soc. Sci. 643 (1934)................ 31



IN TH E

i^uprme (Enurt af tl|? Imtpb States
O ctober T erm , 1949.

No. 44.

H em an  M arion  Sw e att , Petitioner,

v.

T heophilu s  S h ick el  P ainter  et a l .

On a W rit of Certiorari to the Supreme Court 
of the State of Texas.

BRIEF OF AMICI CURIAE IN SUPPORT OF 
PETITIONER

STATEMENT

This is a brief o f amici curiae in support of petitioner on a 
writ of certiorari to review the judgment of the Texas Court of 
Civil Appeals (R . 465) affirming a judgment of the District 
Court of Travis County denying petitioner’s request for a writ 
of mandamus (R . 438-41). Review was denied by the Texas 
Supreme Court (R . 466). Certiorari was granted by this Court 
on Nov. 7, 1949. The jurisdictional details are contained in 
petitioner’s brief, and the procedural history of the case appears 
at R. 438-72.

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



2

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

The essential facts are as follows:

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

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

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

SUMMARY OF ARGUMENT

The basic position of this brief is that segregated legal educa­
tion in the state institutions of Texas violates the equal protection 
clause o f the Fourteenth Amendment. That position is ap­
proached by three different paths.



3

First, analysis of the origins of “ equal protection” in American 
law shows that, in the form of “ equality before the law,”  it was 
transferred to this country from the French by Charles Sumner as 
part of his attack on segregated education in Massachusetts a decade 
before the Civil War, and linked by him with the Declaration of 
Independence. Popularized by Sumner, it or like phrases became 
the slogan of the abolitionists, and it passed into the Constitution 
as an important part of the abolitionists’ share o f the Civil War 
victory. Congress, contemporaneously with the adoption of the 
Fourteenth Amendment, clearly understood that segregation was 
incompatible with equality, a judgment reflected by this Court in 
Railroad Co. v. Brown, 17 Wall. 445 (1873).

In Plessy v. Ferguson, 163 U.S. 537 (1896), this Court aban­
doned the original conception of equal protection, adopting instead 
the legal fiction that segregation (in that case, in transportation) 
is not discriminatory. This was a product, in part at least, of a 
policy judgment that the judiciary was incapable of enforcing the 
Amendment as it was written, and that the underlying social evil 
must be left to the correction of time. The Court erred on both 
counts: the judiciary is not so powerless as it supposed, and the 
results o f its abdication have been disastrous. The dissenting 
views of Mr. Justice Harlan in the Plessy case were correct, and 
should be adopted now.

Second, we challenge the applicability to education of the 
“ separate but equal”  refinement of the equal protection clause. 
While we grant the existence of troublesome dicta, there is neither 
a holding nor even carefully considered dicta by this Court declar­
ing that segregation may be enforced in any phase of education. 
In Plessy v. Ferguson the Court did not say that segregation was 
valid in every context in which men could devise ways o f separat- 
ting themselves by color. On the contrary, it made careful dis­
tinction between reasonable and unreasonable segregation. We 
contend that segregation in education is for this purpose unrea­
sonable.

Third, even within the broadest application of Plessy v. Fer­
guson, petitioner is entitled to absolute equality in education.



4

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

ARGUMENT

I.

THE EQUAL PROTECTION CLAUSE W A S IN ­
TENDED TO O U TLAW  SEGREGATION.

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

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

1While decisions outside the area of segregation are not directly 
involved in this case, the leading segregation decision of Plessy v. 
Ferguson, 163 U.S. 537 (1896), can be understood only as part of 
a group of decisions in the latter part of the nineteenth century 
narrowly construing the capacity of the Fourteenth Amendment to 
protect Negro rights. Other decisions include the Civil Rights Cases, 
109 U.S. 542 (1883), and United States v. Harris, 106 U.S. 629 
(1883).

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



5

Fourteenth Amendment was intended to insure that they not be 
dropped at some half-way house on the road to freedom. It sought 
to bring the ex-slaves within the circle of the truly free by obliter­
ating legal distinctions based on race.

The evidence of intent to eliminate race distinctions in trans­
portation and education, relationships which must be considered 
together in the history of equal protection, is particularly clear. 
Equal protection first entered American law in a controversy over 
segregated education.

I. The original meaning of equal protection is incompatible
with segregated education.

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

The great abstraction of the Declaration o f Independence was 
the central rallying point for the anti-slavery movement. When 
slavery was the evil to be attacked, no more was needed. But 
as some of the New England States became progressively more 
committed to abolition, the focus o f interest shifted from slavery 
itself to the status and rights of the free Negro. In the Massa­
chusetts legislature in the 1840’s, Henry Wilson, wealthy manu­
facturer, abolitionist, and later United States Senator and Vice 
President, led the fight against discrimination, with “ equality” 
as his rallying cry.3 One Wilson measure gave the right to recover 
damages to any person “ unlawfully excluded”  from the Massa­
chusetts public schools.4

Boston thereupon established a segregated school for Negro 
children the legality of which was challenged in Roberts v. City 
of Boston, 5 Cush. (Mass.) 198 (1849). Counsel for Roberts

8For an account of Wilson’s struggles against anti-miscegenation 
laws, against separate transportation for Negroes, and for Negro 
education, see Nason, Life of Henry Wilson, 48 et seq. (1876).

4Mass. Acts 1845, c. 214.



6

was Charles Sumner, scholar and lawyer, whose resultant oral 
argument was widely distributed among abolitionists as a pamph­
let.5 Sumner contended that separate schools violated the Massa­
chusetts state constitutional provision that “ All men are created 
free and equal.” 6 He conceded that this phrase, like its counter­
part in the Declaration of Independence, did not by itself amount 
to a legal formula which could decide concrete cases. Nonethe­
less it was a time-honored phrase for a time-honored idea and, in 
a broad historical argument, he traced the theory of equality from 
Herodotus, Seneca and Milton to Diderot and Rousseau, philos­
ophers of eighteenth century France.

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

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

5Among those active in distributing the pamphlet was Salmon P. 
Chase of Ohio. Diary and Correspondence of Salmon P. Chase, 
Chase to Sumner, Dec. 14, 1849, in 2 Ann. Rep. Am. Hist. Ass’n. 
188 (1902).

6The following summary of argument is taken from the complete 
argument reprinted in 2 Sumner, Works 327 et seq. (1874).

7Ibid.



7

The Massachusetts court, unpersuaded, rejected Sumner’s argu­
ment, and was in turn reversed by the state legislature.8 But the 
argument outlasted the case, and from it the phrase “ equality 
before the law,” or its briefer counterpart, “ equal rights,”  became 
the measuring stick for all proposals concerning freedmen.

Prior to the Civil War, the controversy over equality for the 
freedmen was primarily a dispute within the States, but national 
emancipation brought the issue to Congress where Sumner kept 
“ equality” in the forefront of Congressional attention.9 Shortly 
before the first meeting of the 39th Congress in December, 1865, 
the new Black Codes in the Southern States had shocked the 
North into widespread recognition of the need to secure equality.10 
Sumner’s popularization of his equality theory had been so suc­
cessful that its echo returned from Radicals everywhere.11 Rep­
resentative Bingham of Ohio offered a proposed Fourteenth 
Amendment in which the key phrase was a guarantee to the people 
of “ equal protection in their rights, life, liberty, and property.” 12 
Senator Morrill of Vermont, shortly to be a member of the 
Joint Committee on Reconstruction, sent a note to Sumner sug­
gesting that the best “ jural phrase”  for an amendment would 
be a guarantee that citizens are “ equal in their civil rights, im­
munities and privileges and equally entitled to protection in life,

8Mass Acts 1855, c. 356.
9See, e.g., his discussion in the Senate of the possible wisdom of 

including “ equality”  in the Thirteenth Amendment. Cong. Globe, 
38th Cong., 1st Sess. 1483 (1864).

10Handy compilations of these Codes are McPherson, Handbook of 
Politics for 1868, 39-44 (1868) ; 1 Fleming, Documentary History of 
Reconstruction c. 4 (1906).

“ “ Equality before the law” was the general cry. A  Pennsylvania 
State Equal Rights League signed its correspondence “ Yours for 
justice and equality before the law.”  Letter to Stevens of Nov. 1, 
1865, Stevens Mss. (1865), Lib. Cong. And see resolution of Provi­
dence, R. I., Union League Club, ibid, asking “ our members in 
Congress”  to secure “ equal rights of all men before the law.”  “ Ab­
solute equality before the law” was demanded in Grosvenor, 34 New 
Englander 368 (1865). See also James, The Framing of the Four­
teenth Amendment 39 et seq. (1939), an unpublished Ph.D. thesis 
in the library of the University of Illinois. On the relative amount 
of attention given the first, as compared to the other sections of the 
Amendment, see note 33 infra.

12Cong. Globe, 39th Cong., 1st Sess. 14 (1865).



8

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

The first relevant measure actually to be considered by Con­
gress was the bill which became the Civil Rights Act of 1866. 
This bill was originally introduced by Senator W ilson of Massa­
chusetts, the same W ilson who had been so active earlier in the 
equality struggles in that state,15 and we may assume that the 
proposal represented the joint policies o f  W ilson and Sumner.16 
The W ilson proposal invalidated all laws “ whereby or wherein 
any inequality o f civil rights and immunities”  existed because of 
“ distinctions or differences of color, race or descent.”  This meas­
ure, as it passed the Senate, contained a clause forbidding any 
“ distinction of color or race”  in the enforcement of certain laws, 
and assured “ full and equal benefit of all laws”  relating to person 
and property. Senator Howard, a member o f the Joint Com­
mittee on Reconstruction, said of the Act, “ In respect to all civil 
rights, there is to be hereafter no distinction between the white 
race and the black race.” 17

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

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

1410 Sumner, Works 22 (1874).
15Though the measure was introduced by Wilson, actual leadership 

on the proposal passed from him to Senator Trumbull of Illinois, 
chairman of the Judiciary Committee. The proposal originated with 
S.9 in the 39th Cong., introduced by Wilson, from which the text 
quotations are taken. A  few days later, after floor discussion which 
revealed that Trumbull was willing to take the lead on the measure, 
Cong. Globe, 39th Cong., 1st Sess. 43 (1865), Wilson introduced a 
new bill, S. 55, which retained and enlarged the language of S. 9. 
This bill was referred to by Trumbull’s name but retained Wilson’s 
proposals. S. 61 became the Civil Rights Act of 1866. 14 Stat. 27 
(1866).

16Wilson hinted as much. Cong. Globe, 39th Cong., 1st Sess. 39 
(1865).

17/d. at 504.



9

a new Amendment might pass which would eliminate all “ dis­
crimination between citizens on account of race or color.” 18 As 
a member of the Joint Committee on Reconstruction, Bingham 
was then working on just such an Amendment. With fellow 
Committee members such as those extreme equalitarians Stevens, 
Howard, and Morrill, there was no serious obstacle in Committee.

Bingham drafted for the Committee the essential language of 
section one o f the Fourteenth Amendment. In the vital equality 
clause he combined the language of his own earlier proposed 
amendment, “ equal protection in their rights” and the Civil Rights 
bill language, “ equal benefit of all laws”  into the concise “ equal 
protection of the laws.” 19 20 The prompt adoption o f the Amend­
ment carried the abolitionist theory of racial equality into our 
basic document.29 As Senator Howard, floor leader for the 
Amendment in the Senate, said of the clause, it “ abolishes all class 
legislation in the States and does away with the injustice of sub­
jecting one caste of persons to a code not applicable to another.”  
The core o f the clause he reduced to Sumner’s meaning: “ It 
establishes equality before the law . . . .” 21

18Id. at 1290, 1293.
19The greatest contribution of the Bingham draft of the clause 

was not in the words he used, but in those he omitted. Previous 
proposals had sometimes carried words of qualification as to the par­
ticular types of laws as to which equal protection was to be afforded. 
The Civil Rights bill in the Senate had referred to “ equal benefits 
of all laws and proceedings for the security of person and estate,”  and 
had referred to “ discrimination in civil rights and immunities.” 
Bingham saw hopeless confusion in these refinements, see remarks 
cited, supra note 18, and omitted them. He thus brought the language 
squarely into accord with the broad “ equality before the law.”

20W e do not, in tracing this history o f the phrase “ equal protec­
tion,”  overlook sporadic earlier uses of similar language. See, e.g., 
Mass. Const. Art. I l l  (1780); N. H. Const. Art. V I (1792); and 
Me. Const. Art. I, § 3 (1819). The context of those Articles, deal­
ing with freedom of religion, are so alien to the subject at hand that 
they were never referred to in connection with the Fourteenth Amend­
ment.

21Cong. Globe, 39th Cong., 1st Sess. 2766 (1866). Some o f the 
broad expressions contemporaneously used, as in the text above, must 
be read in the light of the fact that it was racial distinctions which 
were being discussed. Howard, for example, meant not that the 
Amendment obliterated all classifications in the law, but that it 
obliterated race as a basis of classification.



10

Because the primary concern of those who enacted the Four­
teenth Amendment was with sections two and three of the Amend­
ment, rather than section one which includes equal protection, 
we do not have complete evidence o f the views of all the respon­
sible men of the time on the meaning o f equal protection.22 W e 
do know that the clause found its way into the Constitution 
through Sumner, through Wilson, through Trumbull and through 
the twelve majority members of the Joint Committee on Recon­
struction. Of those fifteen at least eight— Sumner, Wilson, Bing­
ham, Howard, Stevens, Conkling, Boutwell, and Morrill— thought 
the clause precluded any distinctions based on color.23 Three—  
Trumbull, Fessenden, and Grimes— had some mental reservations, 
particularly as to miscegenation, although they agreed generally

22Much of the murkiness in the history of “ privileges and im­
munities,”  “person,”  and “ due process,”  as well as equal protection, 
is produced by the fact that what has become the only significant part 
of the Amendment was then the least significant part. The Repub­
lican Party represented a coalescence of certain economic and political 
interests, along with the abolitionists. Standard references on the 
subject are 2 Beard, The Rise of American Civilisation c. 23 (1935), 
and 2 Morrison and Commager, The Growth of the American Re­
public c. 1 (1942). The best telling of the manner in which these 
factions sought to solve their problems by the Fourteenth Amend­
ment is Flack, The Fourteenth Amendment (1908). The short of 
it is that the politicians and the economic interests they represented 
got the middle sections of the Amendment, while section one was the 
abolitionists’ share of the victory.

23The views of Sumner, Wilson, and Howard are apparent from 
various quotations throughout this brief. Stevens was, if anything, 
a more extreme equalitarian than the other two. See Miller, Thad- 
deus Stevens 9-13, 404, 405 (1939) ; and see Cong. Globe, 39th Cong., 
1st Sess. 1063, 1064 (1866). The views of Conkling, Morrill, and 
Boutwell are apparent from their consistent support of the Sumner 
civil rights bill, discussed in detail, infra. The case as to Bingham 
is less dear, since his pre-occupation in the Amendment was largely 
with the privileges and immunities clause, his special contribution. 
Cf. 2 Boutwell, Reminiscences of Sixty Years 41 (1902). However, 
his view was apparently in accord with the others of this group, as 
evidenced at least by some phrases. See, e.g., Cong. Globe, 39th 
Cong., 1st Sess. 1293 (1866).



11

with the others.24 The positions of the remainder we do not know, 
though some, at least, doubtless agreed with Sumner.25 It was 
thus the dominant opinion of the Committee that the clause 
eliminated distinctions of color in civil rights.

2. Contemporary rejection of "separate but equal” in Con­
gress, immediately before and after the Fourteenth 
Amendment, represents a judgment incompatible with 
segregated education.

Congress repeatedly considered “ separate but equal” in the Re­
construction decade, particularly in connection with transporta­
tion. Railroad and street car companies in the District of Colum­
bia early began to separate white and colored passengers, put­
ting them in separate cars or in separate parts of the same car, 
with quick Congressional response. As early as 1863, Congress 
amended the charter of the Alexandria and Washington Railroad 
to provide that “ No person shall be excluded from the cars on 
account of color.” 26 When, in 1864, the Washington and George­
town street car company attempted to handle its colored passen­
gers by putting them in separate cars, Sumner denounced the 
practice in the Senate and set forth on a crusade to eliminate 
street car segregation in the District.27 After a series o f skir­
mishes, he finally carried to passage a law applicable to all District 
carriers that “ no person shall be excluded from any car on account 
of color.” 28

24Fessenden and Trumbull believed that the Civil Rights Act and 
the Amendment did not affect anti-miscegenation legislation. Cong. 
Globe, 39th Cong., 1st Sess. 505 (1866) (Fessenden) ; id. at 323 
(Trumbull). In 1864 Grimes thought segregated transportation was 
equal. Cong. Globe, 38th Cong., 1st Sess. 3133 (1864), with Trumbull 
apparently contra on that issue, id. at 3132. Whether the views of 
Grimes changed is not known.

25These four members, Harris, Williams, Blow, and Washburne, 
were conventional radicals and Harris, Blow, and Washburne had 
very strong anti-slavery backgrounds. It is therefore highly probable 
that at least some of them shared the views of Sumner and Stevens, 
but we have no direct evidence.

2612 Stat. 805 (1863).
27Cong. Globe, 38th Cong., 1st Sess. 553, 817 (1864).
2813 Stat. 537 (1865).



12

The discussion of the street car bills, all shortly prior to the 
Fourteenth Amendment, canvassed the whole issue of segregation 
in transportation. Those who supported the measures did so on 
grounds o f  equality. Senator Wilson denounced the “ Jim Crow 
car,” declaring it to be “ in defiance of decency.” 29 * Sumner per­
suaded his brethren to accept the Massachusetts view, saying that 
there “ the rights of every colored person are placed on an equality 
with those of white persons. They have the same right with white 
persons to ride in every public conveyance in the common­
wealth.” 80 Thus when Congress in 1866 wrote equality into the 
Constitution, it did so against a background of repeated judgment 
that separate transportation was unequal.31

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

29Cong. Globe, 38th Cong., 1st Sess. 3132, 3133 (1864).
S0Id. at 1158.
31This was clear even from the conservative viewpoint. See re­

marks of Senator Reverdy Johnson, id. at 1156.
32One of the many works on the subject is Knight, The Influence 

of Reconstruction cm Education in the South (1913).
33An extensive account contemporary with Reconstruction, much 

broader in scope than the title indicates, is Spec. Rep., Commissioner 
of Education on Condition and Improvement of Public Schools, Dist. 
Col., H.R. Exec. Doc. No. 315, 41st Cong., 2d Sess. (1870).

34Materials are collected in 2 Fleming, supra note 10 at 171-212. 
Even conservative Southerners, when they sought to give full com­
pliance to the Fourteenth Amendment, conceded that equality required 
unsegregated education. See Williams, The Louisiana Unification 
Movement in 1873, 2 J. South. Hist. 349 (1945), describing the con­
cession of mixed schools by a political group headed by Gen. P. T. 
Beauregard.



13

and should, under the principle of equality, mingle in the school 
rooms.35

The primary responsibility of Congress for education was in 
the District of Columbia, where a segregated system was a going 
operation prior to the end of the Civil War. Securing a place 
on the District of Columbia Committee, Sumner proceeded to 
attack discriminations in the District one at a time.36 * Since he 
chose first to eliminate restrictions on Negro office-holding and 
jury service, he did not reach the school question on his own 
agenda until 1870.87 He then twice carried proposals through 
the Committee to eliminate the segregation,38 and urged his 
proposal on the floor of the Senate on the grounds of equality: 
“ Every child, white or black, has a right to be placed under pre­
cisely the same influences, with the same teachers, in the same 
school room, without any discrimination founded on color.” 39

35The Amendment must be read in the light of this psychology of 
optimism. Immediately after the War the abolitionist societies under­
took educational work in the South on a large scale, fully recorded in 
such of their journals as The American Freeman and the Freeman’s 
Journal. The Constitution of the Freeman’s and Union Commission 
provided that “ No schools or supply depots shall be maintained from 
the benefits of which any person shall be excluded because of color.” 
The Am. Freeman 18 (1866). Lyman Abbott, General Secretary of 
the Commission, published a statement explaining that the policy had 
been fully considered: “ It is inherently right. To exclude a child 
from a free school, because he is either white or black, is inherently 
wrong . . . .  [W e must] lead public sentiment toward its final 
goal, equal justice and equal rights . . . .  The adoption of the 
reverse principle would really lend our influence against the progress 
of liberty, equality, and fraternity, henceforth to be the motto of the 
republic.”  Id. at 6. The fact is that few whites attended these schools. 
Boyd, Some Phases of Educational History in the South since 1865, 
Studies in Southern History 259 (1914).

36Sumner expounded this seriatim policy in Cong. Globe, 40th 
Cong., 2nd Sess. 39 (1867).

S7The jury and office law was twice pocket-vetoed by President 
Johnson, and Sumner, therefore, had to secure its passage three times 
before it became effective in President Grant’s administration. 16 Stat. 
3 (1869).

38S. 361, Cong. Globe, 41st Cong, 2nd Sess. 3273 (1870), and 
S. 1244, id, at 1053 et seq.

"Id. at 1055.



14

The most important new voice heard in the District of Colum­
bia school debate on Sumner’s proposal was that of Senator Matt 
Carpenter of Wisconsin, a leading constitutional lawyer of his 
time and prevailing counsel in E x parte Garland, 4 Wall. 333 
(1867), E x parte McCardle, 7 Wall. 506 (1869), and the 
Slaughter-House Cases, 16 Wall. 36 (1873). Carpenter said:

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

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

In the debates on this new civil rights bill, the leading cases 
on which this Court relied in Plessy v. Ferguson were pressed 
upon the Senate and rejected as unsound. Roberts v. City of

40Cong. Globe, 41st Cong., 3rd Sess. 1056 (1811).
41By 1812, the filibuster had come into frequent use in the defense 

against radical legislation. By a vote of 35 to 20 Sumner defeated 
those who sought to keep his District school measure off the floor 
entirely, Cong. Globe, 42nd Cong., 2d Sess. 3124 (1812), but his time 
was used up before he could bring the matter to final vote.

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



15

Boston, supra, was quoted without avail.43 A  contemporary 
Ohio decision, State v. McCann, 21 Ohio St. 198 (1872), w'hich 
held that separate schools were adequate, was rejected by name 
before these men who knew the Fourteenth Amendment best.44 
They made the point over and over again that the Amendment 
forbade distinctions because of race. As Senator Edmunds of 
Vermont, later chairman of the Senate Judiciary Committee, put 
it when he rejected separate schools : “ This is a matter of inherent 
right, unless you adopt the slave doctrine that color and race are 
reasons for distinction among citizens.” 45 Sumner himself de­
nounced “ separate but equal” in the Senate as he had denounced 
it in his oral argument in Roberts v. City of Boston years before:

“ Then comes the other excuse, which finds Equality in 
separation. Separate hotels, separate conveyances, separate 
theaters, separate schools, separate institutions of learning 
and science, separate churches, and separate cemeteries—  
these are the artificial substitutes for Equality; and this is 
the contrivance by which a transcendent right, involving a 
transcendent duty, is evaded.

. . . Assuming what is most absurd to assume, and
what is contradicted by all experience, that a substitute can 
be an equivalent, it is so in form only and not in reality. 
Every such attempt is an indignity to the colored race, in­
stinct with the spirit of slavery, and this decides its char­
acter. It is Slavery in its last appearance.” 4e

The bill started its final road to passage in the 43rd Congress. 
As Sumner had died, Senator Frelinghuysen o f New Jersey led 
the debate for the bill, beginning on April 29, 1874, with an ex­
tensive argument that segregation was incompatible with the 
Fourteenth Amendment. The bill, he said, sought “ freedom from 
all discrimination before the law on account of race, as one of the

43Cong. Globe, 42nd Cong., 2d Sess. 3261 (1872).
44Senator Ferry, opposing the bill, relied on the McCann case. Id. at 

3257. At the time of its final consideration, Senator Frelinghuysen, 
in charge of the bill in the Senate, explained why he thought the 
McCann case should not control. 2 Cong. Rec. 3452, 43rd Cong., 1st 
Sess. (1874).

45Cong. Globe, 42nd Cong., 2d Sess. 3260 (1872).
48Cong. Globe, 42nd Cong., 2d Sess. 382, 383 (1871) (emphasis 

added).



16

fundamental rights of United States citizenship.” 47 For this he 
found full warrant in the equal protection clause. Segregation 
in the schools, he said, could only be voluntary, for “ the object of 
the bill is to destroy, not to recognize, the distinctions of race.” 48

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

The 26 were not themselves of one mind. Senator Boutwell 
represented a small minority view that separate schools neces­
sarily bred intolerance and therefore should not be allowed to exist 
even if both races desired it.49 However, the dominant Senate 
opinion was that separate schools should be forbidden by law, as 
the Amendment and this bill forbade them; but that if the entire 
population were content in particular instances to accept separate 
schools, it might do so. Senator Pratt of Indiana, one of the 
most vigorous supporters of the bill, noted that Congress was con­
tinuing separate schools in the District of Columbia because both 
races were content with them; and at the same time he pointed 
out that where there were very few colored students, they would 
have to be intermingled.50 Senator Howe put it most concretely 
when he observed that if, by law, schools were permitted to be

472 Cong. Rec. 3452, 43rd Cong.. 1st Sess. (1874).
48Ibid.
49“ If it were possible, as in the large cities it is possible, to establish 

separate schools for black children and for white children, it is in the 
highest degree inexpedient to either establish or tolerate such 
schools.” From speech of Senator Boutwell, id. at 4116.

50Id. at 4081, 4082.



17

separate, they would never in fact be equal. He believed in pro­
hibiting separate schools and then letting people do as they chose: 
“ Let the individuals and not the superintendent of schools judge 
of the comparative merits of the schools.” 51

The bill passed the Senate, but in the House the result was 
different. The bill passed, but with the school clause deleted.

This deletion was the product of many factors. The House 
had previously voted to require mixed schools,52 but on this occa­
sion it was confronted with the firm opposition of the George 
Peabody Fund. Peabody, an American merchant who founded 
what became J. P. Morgan & Co., established a fund of $3,000,000 
to aid education in the South. As abolitionist education aid 
societies ran out o f money and collapsed, the Peabody Fund 
became the only major outside agency aiding Southern education. 
The Fund opposed mixed schools, withdrawing its aid where they 
were required.53 It claimed credit for inducing President Grant 
to instruct his House floor leader to abandon the school provi­
sion.54 Coupled with this pressure were threats from Southern 
representatives that they would end their newly founded public 
school systems if the Senate measure passed.55 In addition, some 
Representatives felt that the courts would protect the Negroes on 
the school issue, and thus as a matter of legislative discretion 
waived the right to legislative aid.56 For whatever combination

51Id. at 4151.
52H.R. 1647, Cong. Globe, 42nd Cong., 2d Sess. 2074 (1872), 

(House refused, 73 to 99, to lay bill on table) ; id. at 2270, 2271 (en­
grossed and read three times, 100 to 78) ; no final action taken.

532 Fleming, supra note 10 at 194. During this period the Fund 
was under the direction of Dr. Barnas Sears, later succeeded by J. L. 
Curry. Curry, in a volume on the work of the Fund, introduces 
the topic of mixed schools with the words, “ Some persons, not to ‘the 
manner born’, took the lead in organizing a crusade for the co-educa­
tion of the races.”  Curry, Brief Sketch of George Peabody 60 
(1898).

5iId. at 64, 65.
55See, e.g., discussion of this point by Representative Roberts, who 

stated that he preferred to prohibit segregated schools but would vote 
to omit the clause for fear the South would abolish all schools. 
3 Cong. Rec. 981, 43rd Cong., 2d Sess. (1875).

56See remarks of Representative Monroe, id. at 997, 998.



18

of reasons, a leading Negro Representative from South Carolina 
consented to eliminate the school clause in return for assurance 
that the rest of the bill would pass.57 58 The House result, clearly, 
thus represented a political rather than a constitutional judgment.

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

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

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

On February 8, 1868, Catherine Brown, colored, attempted to 
board a railroad car on a line from Alexandria to Washington. 
That road had a “ Sumner amendment” in its charter which pro­
vided that “ no person shall be excluded from the cars on account 
o f color.” 68 The railroad maintained two identical cars, one next 
to the other on the train, using one for white and the other for 
colored passengers. When Mrs. Brown attempted to sit in the 
“ white” car, she was ejected with great violence.

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

57See remarks id. at 981, 982.
5812 Stat. 805 (1863).



19

Brown was in charge of the ladies’ rest room at the Senate. 
A  Senate investigating committee concluded that the Company 
had violated its charter, and recommended that the charter be 
repealed if Mrs. Brown were not fully compensated by civil 
damages.59

A t the trial, the Company unsuccessfully asked for a charge 
to the jury that separate but equal cars complied with the statute, 
and in the Supreme Court it argued that “ making and enforcing 
the separation of races in its cars”  was “ reasonable and legal.” 60

The Supreme Court unanimously rejected the “ separate but 
equal”  argument as “ an ingenious attempt to evade a compliance 
with the obvious meaning of the requirement.” 61 The object of 
the Sumner amendment, said the Court, was not merely to let the 
Negroes buy transportation, but to let them do so without “ dis­
crimination”  :

“ Congress, in the belief that this discrimination was unjust, 
acted. It told the company, in substance, that it could 
extend its road into the District as desired, but that this 
discrimination must cease, and the colored and white race, 
in the use of the cars, be placed on an equality. This con­
dition it had the right to impose, and in the temper of 
Congress at the time, it is manifest the grant could not have 
been made without it.” 62

Thus in its first review of “ separate but equal,”  this Court held 
that segregation was “ discrimination”  and not “ equality.”  W e 
ask the Court to apply that same principle in the instant case.

59Sen. Rep. No. 131, 40th Cong, 2d Sess. (1868).
60The quotation is taken from the brief on file in the Supreme Court 

library.
8117 Wall. 445, 452. The same approach as that of the Brown case 

is taken whenever a statute which requires “ equal” treatment is held 
to forbid segregation. See, e.g., Baylies v. Curry, 128 111. 287, 21 
N.E. 595 (1889) (restricting Negroes to particular theater seats held 
violation of statute) ; Jones v. Kehrlein, 47 Cal. App. 646, 194 P. 55 
(1920) (same).

6217 Wall. 445 at 452, 453 (emphasis added).



20

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

Twenty years after Railroad Co. v. Brown, this Court took 
a wholly different view o f segregation.

The exact issue in Plessy v. Ferguson, 163 U.S. 537 (1896), 
was whether a Louisiana requirement of separate railroad ac­
commodations denied equal protection. Mr. Justice Brown for 
the majority held that this segregation did not stamp “ the colored 
race with a badge o f inferiority.”  If it did so, said he, “ it is 
not by reason of anything found in the act, but solely because 
the colored race chooses to put that construction upon it.” 63

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

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

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

63Plessy v. Ferguson, 163 U.S. 537, 551 (1896).



21

the conclusion that it is competent for a State to regulate 
the enjoyment by citizens of their civil rights solely upon 
the basis of race.

“ In my opinion, the judgment this day rendered will, in 
time, prove to be quite as pernicious as the decision made by 
the tribunal in the Dred Scott case.”  (163 U.S. at 556-9).

The core o f Mr. Justice Brown’s argument is in his assump­
tion that segregation is not a white judgment of colored inferior­
ity. This would be so palpably preposterous as a statement of 
fact that we must assume Justice Brown intended it as a legal 
fiction. The device of holding a despised people separate, whether 
by confinement of the Jew to the ghetto, by exclusion o f the 
lowest castes in India from the temples, or by the slightly more 
refined separate schoolroom, is clearly expression of a judgment 
of inferiority.

The real question, therefore, is why should the Court have 
adopted this legal fiction? W hy should the Court have thought 
it necessary to make a pretense that segregation is anything other 
than discrimination?

The Court chose to overthrow the Fourteenth Amendment, not 
for caprice, but for reasons of policy.64 The specific policy judg­
ments made by the Court are analyzed in the next section of this 
brief. Suffice it to point out here that Plessy v. Ferguson was 
part of the process by which the Court in the latter part of the 
nineteenth century failed to preserve for the Negro many of the 
major gains o f abolition.

W e submit that the Court should return to the original meaning 
of the Fourteenth Amendment. W e grant, as Plessy implies, that 
termination of segregation is a break with tradition. But we 
contend that there is nothing in the tradition of Negro slavery

64For discussion of the policy bases of the reconstruction decisions, 
see 2 Warren, The Supreme Court in United States History 608 
(1926). He lists three factors: the desire to eliminate “ the Negro 
question”  from national politics; the desire to relegate the Negroes 
to state authority; and the desire to restore confidence in the Court 
in the South. Our central position is that the Amendment should not 
have been sacrificed for any or all of these considerations.



22

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

“ If, sir, we have not the Constitutional right thus to legis­
late, then the people o f this country have perpetrated a 
blunder amounting to a grim burlesque over which the world 
might laugh were it not that it is a blunder -over which 
humanity would have occasion to mourn. Sir, we have the 
right, in the language of the Constitution, to give ‘to all 
persons within the jurisdiction of the United States the equal 
protection of the laws’.” 65

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

II.
THE BASIC POLICIES UNDERLYING THE COURT’S 

A PPR O V A L OF SEGREGATION  IN  PLESSY V. FER­
GU SON  H AVE, IN  THE YEARS INTERVENING SINCE 
T H A T  DECISION, PROVED T O  BE NOT ONLY 
W H O L L Y  ERRONEOUS BUT SERIOUSLY DESTRUC­
TIVE OF THE DEMOCRATIC PROCESS IN  THE  
UNITED STATES.

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

652 Cong. Rec. 3451, 43rd Cong., 1st Sess. (1874).



23

Ferguson. Concededly “ a page o f history is worth a volume of 
logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 
(1921). This Court must deal with the same practical consider­
ation that faced the Court in the nineteenth century. Petitioner, 
if he would persuade you to reconsider Piessy, must persuade you 
that Harlan’s dissent had more than a theoretical validity.

Two fundamental judgments of fact and policy underlay the 
decision of the majority in Piessy v. Ferguson. One was the 
Court’s acceptance of the premise that, since “ [legislation is pow­
erless to eradicate racial instincts or to abolish distinctions based 
upon physical differences,”  it is impossible to eliminate segrega­
tion founded in the “usages, customs and traditions” of the com­
munity, and hence the Constitution must bow to the inevitable. 
The other was the Court’s assumption that the wiser policy was 
to let events take their course and that governmental intervention 
“ can only result in accentuating the difficulties of the present situ­
ation.”  163 U.S. at 550-2.

Over half a century has passed since the Court decided Piessy 
v. Ferguson. In these years much that was obscure about the 
practice of segregation has become clarified. As events have 
unfolded, as trends have become more distinct, as additional 
knowledge has been gained, the impact of segregation upon Amer­
ican life has emerged more clearly. In the light o f these inter­
vening developments, the basic judgments made by the Court in 
Piessy v. Ferguson have proved to be erroneous. Indeed, far 
from solving or even alleviating the problem of racial segregation 
the decision of the Court has tended to intensify it and to create 
conditions that threaten to undermine the very structure o f Amer­
ican democratic society.

1. The judgment of the Court in Piessy v. Ferguson that 
direct governmental intervention to eliminate segrega­
tion is ineffective to overcome the prevailing customs of 
the community has proved to be without foundation.

There are severe limitations, of course, upon the effectiveness 
of direct legal compulsion to wipe out the gap that exists between



24

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

Experience has shown that this Court is not as impotent in the 
field of race relations as the majority in Plessy v. Ferguson 
assumed. On the contrary every decision of this Court against 
racial discrimination has made a significant contribution toward 
the achievement of racial equality.

Concrete evidence is available, for instance, that the decisions 
of this Court in the white primary cases have not only eliminated 
the institution of white primaries but have resulted in a substan­
tial increase in Negro voting. V . O. Key, in his careful study 
entitled Southern Politics, reports that except in four states of 
the Deep South the decision in Smith v. Allwright, 321 U.S. 649 
(1944), was accepted “ more or less as a matter of course.” 66 
Pointing out that the effect o f the decision was not felt until the 
1946 primaries, he notes that “ Florida experienced a sharp in­
crease in Negro registration after 1944” ; that “ [i]n  1946 the 
voting status of Georgia Negroes changed radically,”  the number 
of Negro registrants rising to an estimated 110,000; and that in 
Texas, “ with a few scattered local exceptions, Negroes voted 
without hindrance in the 1946 Democratic primaries.” 67 Key 
reports that four states— South Carolina, Alabama, Mississippi 
and Georgia— made strenuous efforts to avoid the effect of the 
Allwright case, but that these efforts were quickly nullified by the 
courts in both South Carolina and Alabama. With respect to 
South Carolina he observes:

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

66Key, Southern Politics 625 (1949).
67Id. at 625, 519-521.



25

lina. The last vestige of the white primary was stricken 
down by court action in that state in 1948. Prior to that 
time virtually no Negroes voted in the primaries. About
35,000 are reported to have cast ballots in the 1948 prim­
ary.” 68

Thus it is clear that judicial decisions have been a powerful 
influence in assisting the Negro to obtain the right o f franchise. 
The decision of this Court in Morgan v. Virginia, 328 U.S. 373
(1946), has made an important contribution to racial equality in 
the field of transportation.69 And evidence was offered in the 
instant case showing that where segregation in the University 
of Maryland Law School was ended by judicial compulsion the 
subsequent experience was wholly satisfactory.70

That the majority in Plessy v. Ferguson greatly over-estimated 
the practical difficulties of eliminating segregation through gov­
ernmental action is likewise apparent from the accumulation of 
evidence in recent years that discriminatory practices, long rooted 
in the “ usages, customs and traditions” of the community, can 
be successfully eradicated. The President’s Committee on Civil 
Rights, in one of the most significant findings of its well-docu­
mented report, concludes:

“ If reason and history were not enough to substantiate 
the argument against segregation, recent experiences further 
strengthen it. For these experiences demonstrate that segre­
gation is an obstacle to establishing harmonious relationships 
among groups. They prove that where the artificial barriers 
that divide people and groups from one another are broken, 
tension and conflict begin to be replaced by cooperative effort 
and an environment in which civil rights can thrive.” 71

68Id. at 522. For a full account of Negro voting and the white 
primary litigation, see id. at 517-22, 619-43. See also Murray (E d.), 
The Negro Handbook 48-53 (1949). It has been estimated that the 
number of Negroes registered to vote in the South increased from
211,000 in 1940 to over 1,000,000 in 1948. Id. at 53.

69See, e.g., id. at 64.
70R. 290. This evidence was excluded by the trial court.
71Report o f President’s Committee on Civil Rights, To Secure 

These Rights 82-3 (1947).



26

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

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

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

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

“ This conclusion is supported by many reports of housing 
authorities who have ventured into mixed occupancy.” 78

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

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

72Taylor, Negro Teachers in White Colleges, 65 School and Society 
369 (1947).

73Abrams, Race Bias in Housing 22 (1947), pamphlet published 
jointly by American Civil Liberties Union, National Association for 
the Advancement of Colored People, and American Council on Race
Relations. For other accounts of the successful elimination of segre­
gation in housing see Ottley, The Good-Neighbor Policy—At Home, 
Common Ground, Summer 1942, p. 51; Manning and Phillips, 
Negroes as Neighbors, 13 Common Sense 134 (1944) ; Horne and 
Robinson, Adult Educational Programs in Housing Projects with 
Negro Tenants, 14 Jour. Negro Educ. 353 (1945); Abrams, The 
Segregation Threat in Housing, 7 Commentary 123 (1949) ; Report 
of President’s Committee on Civil Rights, To Secure These Rights
85-7 (1947).



27

divisions worked and fought side by side. Then, white offi­
cers, noncommissioned officers, and enlisted men in seven 
of the eleven divisions were interviewed. At least two of 
these divisions were composed o f men who were predomi­
nantly southern in background. It is surprising how little 
the response of these southern men varied from that of men 
from other parts of the country.

“ Two out o f every three white men admitted that at first 
they had been unfavorable to the idea of serving alongside 
colored platoons. Three out of every four said that their 
feelings toward the Negro soldiers had changed after serving 
with them in combat.” 74

Following up the recommendations of his Committee, Presi­
dent Truman in July, 1948, issued an Executive Order stating:

“ It is hereby declared to be the policy of the President that 
there shall be equality of treatment and opportunity for all 
persons in the armed services without regard to race, color, 
religion or national origin. This policy shall be put into 
effect as rapidly as possible, having due regard to the time 
required to effectuate any necessary changes without impair­
ing efficiency or morale.” 75

Experience with governmental efforts to eliminate segregation 
in employment points consistently to the same conclusion. The 
Fair Employment Practice Committee, established during the war 
to promote equality of all races in employment, summarizes its 
experience o f five years in its final report:

“ Two fundamentally hopeful facts developed out of the 
Government’s efforts to open war time opportunities to all 
workers:

“ 1. Employees and workers abandoned discrimination in 
most cases where Government intervened.

“ 2. Once the barriers were down, the workers of varying 
races and religions worked together efficiently and 
learned to accept each other without rancor.” 76

liId. at 83. With respect to the experience of the Merchant Marine 
the Report states: “Where there was contact with Negroes on an 
equal footing in a situation of mutual dependence and common 
effort prejudice declined.” Id. at 85.

76Exec. Order 9981, Fed. Reg. 4313 (1948).
76U. S. Fair Employment Practice Committee, Final Report viii 

(1946). For discussion of FEPC experience in the South see id. 
at 33-6.



28

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

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

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

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

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

“ It is evident that, irrespective of a company’s past history 
or its geographical location, Negro workers can be intro­
duced into a plant, or their employment extended, provided 
management is sincerely desirous of taking this course.” 78

77Simon, Causes and Cure of Discrimination, N. Y. Times, May 
29, 1949, § 6, p. 10 at p. 35. Cf. Ross, Tolerance by Law, 195 Harp­
er’s Mag. 458 (1941) : “ Tw o years of state FEPC’s have done 
more to end job discrimination than fifty years of private agitation, 
good-will conferences and educational campaigning.” See also N. Y. 
State Commission Against Discrimination, 1948 Report of Progress 
11-12; Comment, 56 Yale L. J. 837 (1947); Northrup, Proving 
Ground for Fair Employment, 4 Commentary 552 (1947).

78American Management Association, The Negro Worker 9-11 
(1942). Among many other accounts of successful integration of 
Negro and white workers see Commission on Discrimination in 
Employment, N. Y . State War Council, Breaking Down the Color 
Line, 32 Management Review 174 (1943) ;_ Newman, An Experi­
ment in Industrial Democracy, 22 Opportunity 52 (1944); Gillmor



29

Thus our present day experience demonstrates that elimination 
o f patterns of segregation is not only feasible but is rapidly going 
forward under government sponsorship. As the American Civil 
Liberties Union has pointed out in its most recent survey o f the 
status of civil liberties in the United States, “ race equality under 
law advances steadily.” * 79 And again, “ [t]he gathering momen­
tum of the many-sided movements to extend the rights of Negroes 
was expressed in numerous court cases, legislation, administrative 
rules, and liberalized policies in quasi-public organizations.” 80 
The assumption o f the majority in Plessy v. Ferguson that strict 
enforcement of the Fourteenth Amendment in accordance with 
its original purposes could not be made effective by governmental 
action has simply not been borne out by the actual developments. 
It is in this new atmosphere of progress that this Court should 
now reconsider the issues raised by the instant case.

2. Patterns of segregation have not tended to produce har­
monious relations between races, as the Court assumed 
in Plessy v. Ferguson, but have increased tensions and 
become progressively destructive of the democratic proc­
ess in the United States.

It was the judgment of the majority in Plessy v. Ferguson that 
the institution of segregation was better left alone, that judicial 
intervention under the Fourteenth Amendment would accentuate 
the difficulties. Clearly implied was the notion that harmonious 
relations would gradually evolve by a process of mutual adjust­
ment.

(president of Sperry Gyroscope Co.), Can the Negro Hold His Job?, 
National Association for the Advancement of Colored People 
Bulletin 3-4 (Sept. 1944) ; Ross, They Did It In St. Louis, 4 Com­
mentary 9 (1947). With regard to the successful integration of 
Negro and white workers in labor unions see Bellson, Labor Gains 
On the Coast, 17 Opportunity 142 (1939) ; Sweetland, The CIO and 
Negro American, 20 Opportunity 292 (1942).

79American Civil Liberties Union, 29th Ann. Rep., In the Shadow 
of Fear 3 (1949).

80Id. at 29.



30

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

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

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

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

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

81Note, 56 Yale L. J. 1059, 1061-2 (1947), citing numerous scien­
tific authorities in support of the statement.



31

The consequences of segregation to the group that maintains 
the segregation have been described by Myrdal:

“ Segregation and discrimination have had material and 
moral effects on whites, too. Booker T. Washington’s fam­
ous remark, that the white man could not hold the Negro 
in the gutter without getting in there himself, has been cor­
roborated by many white Southern and Northern observ­
ers.” 82

The psychological and sociological data showing the effects of 
segregation upon both groups and the serious tensions it creates 
in the community at large have been presented to the Court in 
the Brief for the United States in Henderson v. United States 
(N o. 25, October Term, 1949) as well as by petitioner in this 
case.83 There is no need to review these materials here. The 
point we wish to emphasize is that a satisfactory adjustment 
between the races has not been achieved through governmental 
inaction toward segregation. On the contrary, the continued 
existence of segregation has perpetuated and strengthened the 
grave maladjustments inherent in the system.

Myrdal, one of the most discerning students of the problem, 
has pointed this out, noting that what was merely segregation 
forty years ago is becoming a caste system today:

“ The spiritual effects of segregation are accumulating 
with each new generation, continuously estranging the two 
groups.” 84

821 Myrdal, An American Dilemma 643-4 (1944).
83The material is relevant as showing both that segregation neces­

sarily implies the inferiority of the segregated group and that separate 
facilities can in fact never be equal. In addition to the two briefs 
referred to, see the studies cited in Note, 56 Yale L. J. 1059 (1947) 
and Note, 49 Col. L. Rev. 629 (1949). See also Wirth, Segregation, 
13 Encyc. Soc. Sci. 643 (1934) ; American Council on Education, 
Thus Be Their Destiny (1941) ; American Council on Education, 
Color, Class and Personality (1942) ; Bowen, Divine White Right 
(1934) ; Note, 58 Yale L. J. 472 (1949).

841 Myrdal, An American Dilemma 645 (1944). See also id. at 
644-50.



32

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

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

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

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

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

85MacIver, The More Perfect Union 67-8 (1948).



33

tutional and legislative enactments, have determined that policy, 
the factual bases of which are not subjects of judicial review.” 
R. 450.

This is wrong. Texas cannot turn into a matter of fact or of 
local judgment the expressed principle of the federal Constitution 
that the rights of citizens of the United States are not dependent 
upon race, creed, or color. No subject is more fit for judicial 
review, and strict judicial review, than conduct which strikes at 
the heart of the democratic process. Mr. Justice Stone, in United 
States v. Carotene Products Co., 304 U.S. 144, 153 (1938), sug­
gests that close scrutiny is necessary in “ the review o f statutes 
directed at particular religious . . .  or national . . .  or 
racial minorities” ; for the “ prejudice against discrete and insular 
minorities may be a special condition, which tends seriously to 
curtail the operation of those political processes ordinarily to be 
relied upon to protect minorities, and which may call for corre­
spondingly more searching judicial inquiry.”  And see W est Vir­
ginia State Bd. v. Barnett, 319 U.S. 624, 638 (1943).

The institution of segregation is designed to maintain the Negro 
race in a position o f inferiority. It drastically retards his educa­
tional, economic and political development and prevents him from 
exercising his rightful powers as a citizen. It creates maladjust­
ments and tensions which sap the vitality of our society. More­
over, left to itself, it operates to strengthen and accentuate the 
very evils which need to be combatted. T o  this extent it is not 
subject to correction by the normal methods o f the political 
process. On the other hand, judicial action to wipe out segrega­
tion has proved entirely practical and effective. In the light of 
these circumstances, not known to or recognized by the majority 
in Plessy v. Ferguson, the Court should not hesitate to strike down 
the practice as plainly violative of the Fourteenth Amendment’s 
guarantee of equal protection.



34

III.
SEGREGATION SHOULD N O T BE EXTENDED TO  

EDUCATION.

1. The precedents do not uphold segregated education.

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

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

This is not to say that the problem of the validity o f segrega­
tion in education has never been referred to in the opinions of 
this Court, but rather that it has never been seriously argued or 
deliberately considered. In Berea College v. Kentucky, 211 U.S. 
45 (1908), the issue was the validity of a Kentucky statute for­
bidding the teaching of Negroes and whites in the same college. 
The sole question raised and decided was that such a statute was 
not a violation o f due process as an interference with the prop­
erty rights of the educational corporation. The question of the 
rights of individuals was carefully put aside {id. at 54) and 
the equal protection problem was not involved. In Cumming v. 
Richmond County Bd., 175 U.S. 528, 543 (1899), the Court in 
so many words excluded the legality of segregation in education 
from its decision. Yet in Gong Lunt v. Rice, 275 U.S. 78 (1927),



35

the Court treated segregation in education as legitimate on the 
basis of the Plessy and Gumming cases despite the fact that the 
basic problem was not argued in the Gong Lum case and that it 
was neither involved in Plessy nor decided in Cumming.

The result is that if segregation in education is constitutional, 
it became so under a rule of law that came from no place. So 
vital a matter should not have rested on dicta without either 
argument or consideration. Missouri ex rel. Gaines v. Canada, 
305 U.S. 337, 344 (1938), did observe that segregated education 
had been “ sustained by our decisions.”  But the cases cited had 
not in fact considered the precise point and that matter was not 
involved in the Gaines case, which decided only whether a par­
ticular type of separation in education was “ equal.”  Nor does 
Sipuel v. Bd. o f Regents, 332 U.S. 631, and 333 U.S. 147 
(1948), add anything on this point.

2. Under the rule of reason created by the precedents, segre­
gation is unreasonable.

If we accept arguendo the Plessy case, with its distinction be­
tween “ reasonable” and “ unreasonable”  types of segregation, we 
must place segregated education in the category of the “ unrea­
sonable.”  Segregated transportation is at least of shorter dura­
tion, and it is fairly easy to determine whether the proffered 
alternatives in transportation are in fact equal. Segregated educa­
tion has more severe consequences, with devastating psychological 
effects. Furthermore, in segregated education it is impossible in 
fact to secure or police that equality which Plessy assumes must 
exist. Fifty years of experience teaches that separate education 
virtually never is equal. As the President’s Committee on Civil 
Rights reported:

“ With respect to education, as well as to other public serv­
ices, the Committee believes that the ‘separate but equal’ rule 
has not been obeyed in practice. There is a marked differ­
ence in quality between the educational opportunities offered 
white children and Negro children in the separate schools.” 86

S6Report of President’s Committee on Civil Rights, To Secure 
These Rights 63 (1947).



36

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

(1 )  A  democratic society, like any other, seeks to transmit 
its cultural heritage, traditions and aspirations from generation 
to generation.87 W hile there are many instruments for transmis­
sion of culture— the family, the church, business institutions, 
political and social groups and the schools88— in our society the 
school seems to have emerged as the most important.89 This was 
to be expected from  the fact that in a democracy citizens from 
every group, no matter what their social or economic status or 
their religious or ethnic origins, are expected to participate widely 
in the making of important public decisions. The public school, 
unlike the family and other narrower institutions, has thus be­
come the logical agency for giving to all people that broad back­
ground of attitudes and skills which should enable them to func­
tion effectively as participants in a democracy.

Indeed, this consideration lay behind the whole movement 
for free compulsory public education. Thus Jefferson stated: 
“ Even under the best forms [o f government] those intrusted with 
power have, in time and by slow operations, perverted it into 
tyranny; and it is believed that the most effectual means of pre­
venting this would be to illuminate, so far as practicable, the 
minds of the people at large . . . .” 90 Furthermore, Horace 
Mann and many others who fought for free public education 
valued it as an instrument for eliminating the class structure 
in education, namely the segregation of the rich from  the poor, 
which bred undemocratic attitudes and habits o f  life. By the 
same token, opponents of free public education were frequently

87Benedict, Transmitting our Democratic Heritage in the Schools, 
48 Am. Jour. Sociol. 722 (1943), reprinted in Lee and Lee, Social 
Problems in America 297 (1949).

88Myers and Williams, Education in a Democracy 164-227 (1942).
89Merriam, The Making of Citizens 88-89, 211-2, 273-4 (1931).
"Quoted in Curti, The Social Ideas of American Educators 3 

(1935).



37

those who believed in government by the elite and had little faith 
in the full development o f  democracy.91

(2 )  Just as the principle of free public education was the 
first important step in realizing democratic objectives through 
our educational system, so completely non-segregated public 
education is an essential element in reaching that goal. If children 
have race superiority taught them as infants, we cannot 
expect them lightly to toss it aside in later life. The answer lies 
not, however, in simply indoctrinating them with the principle 
of racial equality. Modern educational theory, formulated in an­
swer to the need of our society for self-reliant individuals volun­
tarily cooperating with others to meet the everchanging scene in 
our dynamic civilization,92 postulates a more thoroughgoing 
solution. According to this theory, education “ is a continuous 
process from the beginning to the end o f  life” , and it is a “ con­
tinuous reconstruction of experience.” 93 That is to say, each 
new thing learned is assimilated to some previous thing learned, 
and the new is in part conditioned by the old. “ Education in 
America must be education for democracy. If education is life 
and growth, then it must be life within a social group . . . . 
Schools must be democratic communities wherein children live 
natural, democratic lives with their companions and grow into 
adulthood with good citizenship a part of their experience.” 94

(3 )  This modern educational theory o f  learning by doing, 
clearly implies the necessity o f  non-segregated education. The 
principle of equality of opportunity regardless of race or creed,

91Id. at 101-200.
"S ee  Benedict, op. cit. supra note 87; Kallen, The Education of 

Free Men cc. 10, 11, 12, 15 (1949); Kilpatrick (E d.), The 'Educa­
tional Frontier c. 2 (1933) ; The President’s Commission of Higher 
Education, 1 Higher Education for American Democracy 5-9, 101-2
(1947); 2 id. 3-9; Brubacher, Modern Philosophies of Education 
c. 14 (1939).

"Frasier and Armentrout, An Introduction to Education 31, 33 
(3d ed. 1933).

9iId. at 32. See also Brubacher, op. cit. supra note 92 at 330-1;
Dewey, Democracy and Education (1916) ; Mayo, The Human Prob­
lems of an Industrial Civilization (1933) ; Lewin, Resolving Social
Conflicts c. 5 (1948).



38

so much a part o f our American tradition, can be fully achieved 
only if this element in our cultural heritage is kept alive and 
allowed to grow. The school, as has been shown, is the most 
important institution through which this heritage can be trans­
mitted. But, as has likewise been made clear, proper teaching 
of the principle of equality of opportunity requires more than 
mere inculcation of the democratic ideal. What is essential is 
the opportunity, at least in the school, to practice it. This requires 
that the school make possible continuous actual experience of 
harmonious cooperation between members o f various ethnic and 
religious groups and thus produce attitudes of tolerance and 
mutual sharing that will continue in later life.95 In the segre­
gated school, this desirable environment does not exist. The 
most important instrument for teaching democracy to all people 
is thus rendered impotent.

Even for those who believe in the policy behind Plessy v. Fer­
guson, that it is impractical to eliminate segregation in all areas 
of our culture at once, education has usually been the logical step 
for achieving our ideal o f true equality. Since segregated educa­
tion cannot be effective education for equality, the principle of 
Plessy v. Ferguson should not be extended to the schools.

IV.

EQUAL FACILITIES FOR LEGAL EDUCATION HAVE  
N O T IN  FACT BEEN OFFERED TO SW EATT AN D , 
INDEED, SEGREGATED LEGAL EDUCATION CANNOT  
UNDER A N Y  CIRCUMSTANCES AFFORD EQUAL 
FACILITIES. HENCE PETITIONER HAS BEEN DENIED 
EQUAL PROTECTION EVEN W IT H IN  THE BROADEST 
APPLICATION OF PLESSY V. FERGUSON.

Up to this point we have challenged the legality of segregation 
generally, and particularly in education. But it is perhaps un­
necessary to go so far. Petitioner wants to go to the University

98See Kallen, The Education of Free Men 182-4 et passim (1949) ; 
Maclver, The More Perfect Union c. 9 (1948) ; Newlon, Education 
for Democracy in Our Time 92-103 (1939).



39

o f Texas Law School. The courts below have concluded that 
the segregated school is “ separate but equal” and, therefore, legit­
imate. W e contend that Texas has not in fact created a segre­
gated law school for Negroes which is equal to its white law 
school, and indeed that it is impossible for a segregated law 
school to afford opportunities in legal education equal to an 
unsegregated school.

In making this argument, we are safely within the boundaries 
of all precedents, and Plessy v. Ferguson becomes our direct sup­
port. In any interpretation, that case requires equality if segre­
gation is to be permitted, and we contend that there is not and 
could not possibly be equality here.

The precise point that segregated legal education affords equal 
education has never been decided by this Court. In the Gaines 
case, 305 U.S. 337 (1938), there was no legal education offered 
Negroes in Missouri, and the Court, therefore, was required to 
hold only, as it did hold, that equal facilities must be furnished 
within the borders of the State. In the Sipuel case, 332 U.S. 631
(1948), the majority found that the question whether “ separate” 
legal education was or could be “ equal”  was not properly presented 
to it.

In the Sipuel case, further considered sub nom. Fisher v. Hurst, 
333 U.S. 147, 152, Mr. Justice Rutledge disagreed with his 
brethren on the procedural issue, and thus reached the question 
we have here. Mr. Justice Rutledge observed that the equality 
required is “ equality in fact, not in legal fiction. Obviously no 
separate law school could be established elsewhere overnight cap­
able of giving petitioner a legal education equal to that afforded 
by the state’s long, established and well-known state university law 
school.”

Freed o f the procedural barrier in the Sipuel case, we reach 
Mr. Justice Rutledge’s point in this case. W e contend that, if 
the equality required by the Fourteenth Amendment is “ equality 
in fact, not in legal fiction,”  then clearly this over-night law 
school, suddenly appearing in Austin and quickly moved to Hous­
ton, does not and cannot equal the University of Texas (white).



40

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

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

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

This judgment requires us to compare law schools, a very 
special kind of educational comparison. Grade schools and high 
schools perhaps can be compared on the basis of physical plant, 
or teachers’ salaries, or types of plumbing, or number of students 
in the class, or variety of courses offered;98 but these mechanical 
approaches to legal education tell only a partial story. The neces­
sary inequality of Texas (colored) is accentuated by factors pecu­
liar to legal education and the standards applicable to grade schools 
or high schools have little relevance in such comparison. Some 
of the inequalities in the instant case are also the product of the

9CFor a collection of cases decided for and against Negroes in 
terms of size of school, value of school property, location of school, 
length of term, number of teachers, etc., see 103 A.L.R. 713. For 
a similar approach by Texas in this case, see R. 78.



41

extremely small size of the school which Texas would require 
Sweatt to attend (R . 77).

(1 ) Faculty size is not the exclusive measure of a law school, 
certainly not where the number of teachers is reasonably large. 
But the size has great relevance when it is very small. Texas 
contemplates a faculty of only four at Texas (colored) (R . 454) 
but lists 28 faculty members for the current year at Texas 
(white).97 Although fewer faculty members may be able to give 
fewer students at the Negro school a greater proportion of time, 
it will be the time of a jack-of-all-trades— not a specialist. Nor 
will the student have the benefit of the different faculty viewpoints 
so beneficial to the law student.

(2 ) Apart from the faculty size, faculty quality at Texas 
(colored) will not be equal. The primary and secondary school 
cases cited above compare teachers as so many interchangeable 
units of educational machinery. Assuming arguendo the validity of 
that approach to grade schools, law teachers are not thus fungible. 
Justice Jackson put it well when he said, “ Nothing, not even an 
alluring new curriculum, can take the place of a sagacious and 
imaginative teacher. He can impart a sense o f the movement and 
function o f law which is needed as part of the study of each field 
of law.” 98

Very small schools lack the inducements of those somewhat 
larger to obtain professors of equal distinction. There is little 
possibility of encountering a number of interested and interesting 
students in so small a school. Hence, the range of educational 
experimentation desired by the able teacher is virtually non-exis­
tent. Development of the teacher’s professional reputation turns 
upon his achievement of recognition as an authority in a special

97Association of American Law Schools, Teachers’ Directory 39 
(1949-50). The number was 31 when this record was made (R. 369). 
The Bulletin of the Texas State University for Negroes, School of 
Law 4 (1949-50) lists six faculty members, including the librarian, 
at Texas (colored). It does not appear whether these are full-time 
or part-time faculty members.

98Jackson, The Product of Our Present-Day Law Schools, 9 Am. 
Law School Rev. 370, 375 (1939).



42

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

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

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

"These problems are well discussed by Dean B. F. Boyer, Uni­
versity of Kansas City Law School, The Smaller Law Schools, 9 Am. 
Law School Rev. 1469 (1942).

100University o f Texas Law School Catalogue 25 et seq. (Aug. 1, 
1948). The Bulletin of the Texas State University for Negroes, 
supra note 97 at 14-17, lists 39 courses for the two semesters. In 
making this calculation we have taken the course headings, as listed 
in the catalogues, as constituting a “ course.”

101The Bulletin of the Texas State University for Negroes, supra 
note 97 at 5, states that the library of Texas (colored) now contains
23,000 volumes. The number of duplicates does not appear.

102The calculation is based on Moylan, Selected List of Books for 
the Small Lazo School Library, 9 Am. Law School Rev. 469 (1939), 
and the testimony of Hargraves, librarian of the University of Texas’ 
law school (R . 142).



43

and as a practical matter only a large staff o f diligent librarians 
could find such a collection o f books in any short time. Without 
such a library, the kind and quality of research experience given 
Sweatt will be far inferior to that given the white citizens of 
Texas.

(5 ) Texas (colored) gives its graduates an economic oppor­
tunity inferior to that of the graduates of the University at Austin. 
In addition to any economic difficulties Sweatt may meet as a 
Negro, he would acquire an unequal professional standing by grad­
uation from a segregated law school. Professional careers are seri­
ously affected by the repute in which the school is held by the 
profession at large. Moreover, Texas (colored) is a raw, new in­
stitution not only without prestige but without alumni. Texas thus 
deprives Sweatt of placement opportunities given to the graduates 
of the old, established school.103 Assistance of this kind is most 
important in the present situation o f the Texas bar for, in the 
words of the Assistant Dean of Texas (white) : “ It is obvious 
that the existing firms will not be able to absorb the great number 
of men being graduated from the law schools in Texas.” 104 The 
placement efforts of Texas (white) based, as they must be, upon 
the loyalty o f alumni and the established reputation o f the institu­
tion emphasize the inequality o f opportunity Texas would give 
Sweatt.

(6 ) W ork on a law review is considered a desirable part of the 
training o f good law students. The University at Austin has 
an excellent review on which its students may aspire to serve. 
Texas (colored) cannot have a law review for lack of a sufficient 
number of topnotch students to man it. (Cf. R. 105, 310-3, 
347.)

103Associate Dean James P. Gifford, Columbia University School 
of Law, in an extensive report on placement method observed, “ Prac­
tically all schools use their alumni as sources of information about 
openings.”  9 Am. Law School Rev. 1063, 1066 (1941). Dean Gif­
ford also discussed the value of moot courts, dinners, and speeches 
as placement aids.

10412 Texas Bar Journal 208 (1949).



44

(7 ) The training of moot court work depends in great meas­
ure on the quality of competition among groups of students. Moot 
court activities at Austin are based on such competition (R . 103). 
Substantial numbers are necessary to create satisfactory competi­
tive groups.

(8 ) Finally, that part of a legal education which results from 
doing lawyer’s work in a legal aid clinic requires for successful 
operation a sufficient number of competent students to manage 
and supervise the novices.105

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

The lawyer, to meet the responsibilities o f his profession, must 
have a vital sense of the culture of the community in which he 
lives and works. “ Lawyers are perpetually engaged in trying to 
anticipate, prevent, mediate, settle or win human disagreements 
involving alleged rights recognized at law. Their thinking, plan­
ning and action are framed and limited by what they understand 
to be the prevailing principles and doctrines of law— what the 
judges, or legislatures have decided in like situations before or, 
more accurately, what they guess judges or legislatures would 
decide in like situations tomorrow.” 106 The knowledge required 
for these tasks can in part be obtained from books; but a major 
share must come from intimate knowledge of the ways of thought 
o f the community. “ He (the lawyer) is literally lost unless he

lospor a description of the work of the Texas (white) legal aid 
program see Patterson, The Legal Aid Clinic, 21 Tex. L. Rev. 423, 
426-9 (1943). The Bulletin of the Texas State University for 
Negroes, supra note 97 at 7, states that a legal aid clinic has been 
established at Texas (colored).

106Rostow, Liberal Education and the Law: Preparing Lawyers for 
Their Work in Our Society, 35 A.B.A. Jour. 626, 628 (1949).



45

can sense the drives, interests (and weaknesses) of those with 
whom he deals— whether as witnesses, negotiators, judges, clients, 
or opponents.” 107

Hence it is important that the lawyer receive his training in 
the group with which he is to live and to practice. In speaking 
of training in legal ethics, which is one part of this training 
process, Lloyd Garrison has observed:

“ Thus in classrooms, dormitories, clubs, and playing fields 
the student gets to know not a handful of neighborhood 
acquaintances but a cross-section o f his contemporaries, 
drawn from innumerable localities and environments and 
varying widely in capacities and tastes. He will note them 
all, and in the activities and competition of the communal 
life he will perceive the various gradations of excellence 
which that life reveals in his fellows, and will desire increas­
ingly to resemble those who stand out as the most admirable. 
In the same manner he will judge his teachers, and will be 
drawn slowly but certainly to those whose qualities of mind 
and character shine the most luminously.” 108

The student at Texas (white) will imbibe the lessons not 
only of character but of the knowledge of human beings from a 
far larger portion of that “ cross-section of his contemporaries” 
than could any student at a segregated school. In classifying the 
students at the two schools by the test of color, Texas effectively 
eliminates much of the cross-fertilization of ideas. When a law 
student is forced to study and talk the shop talk o f justice and 
equity with a segregated handful, he is circumscribed in the effort 
to achieve any real understanding of justice or equity. At Texas 
(colored) Sweatt will lose the opportunity of exchanging ideas 
with a complete variety of fellow students. He will thus lose 
part o f the opportunity to absorb those received traditions of 
justice and fairness on which Texas law, like the rest of the Anglo-

107Id. at 629.
108Garrison, Address, American Bar Association Section on Legal 

Education, Boston, 1936, in 8 Am. Law School Rev. 592, 594 (1936).



46

American law, is based.109 The attorney uncultivated in the 
traditions of justice and fairness is handicapped in advising clients 
or in dealing with attorneys and judges who are a part of the 
broad stream of Texas jurisprudence deepened as a result of the 
years of group association at the Austin school.

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

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

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

110Jackson, The Product of Our Present-Day Law Schools 9 Am 
Law School Rev. 370, 371 (1939).



47

To all these elements of inequality there must be added the 
considerations developed in earlier sections of this brief, and in 
other briefs filed with the Court— that segregated legal education, 
in common with every form of segregation, perverts and distorts 
the healthy development of human personality in the group sub­
jected to such discrimination.

The inescapable inequality o f Texas (colored) lies in the fact 
that legal education is not a mere matter of cubic feet of classroom 
space, or the possession of a few thousand books, or the presence 
of four lawyers recently become teachers. If, instead, legal edu­
cation is something alive and vital, if the measure is not cubic 
feet of air space but the intellectual atmosphere within the walls, 
if law teachers are appraised as individual men of varying degrees 
of talent, if education is in large part association, if research and 
practice are part of the job of legal training, if segregation in law 
school warps and corrupts the mind and personality of man—-if 
any of these things is true, then certainly this Texas Negro insti­
tution is a mockery of legal education and of the equal protection 
of the laws.

CONCLUSION.

Every branch of the government, in its own way, has the duty 
of meeting a challenge of our times that Democracy is unreal, a 
promise without fulfillment. This requires more than words. It 
requires that we bring our practices up to our pretensions. The 
account by General Bedell Smith of his experiences as Ambassador 
to Russia, as reprinted in the N ew York Times, dealt at some 
length with the publication Amerika, which our country distributes 
in Russia. In the Times General Smith reprinted two pictures 
from Amerika as samples of our message to Moscow. One of 
those pictures was of an unsegregated school room. Is this really 
our message to the world, or must we send a postscript that there 
is a special exception for young men studying the Constitution 
o f the United States in the State of Texas? The Texas legislature 
has no authority to answer that question for the rest of America. 
The equal protection clause has answered it.



48

W e respectfully submit that the judgment below should be
reversed.

T homas I. E merson 
Jo h n  P. F ran k  
A lexander  H. F rey 
E r w in  N. Griswold 
R obert H ale 
H arold H avighurst 
E dward L evi

F or th e  Com m ittee  of L aw  
T eachers A gainst  Segregation 
in  L egal E ducation

January, 1950.



49

APPENDIX A.

The Committee of Law Teachers Against Segregation in Legal 
Education was formed for the purpose of expressing the convic­
tion of many law teachers that segregation in legal education is 
unconstitutional. The members of the Committee support the 
general legal positions taken in this brief, but responsibility for 
the detailed argument rests exclusively with the signers. The 
members of the Committee are as follows:

Robert Amory, Jr., Cambridge, Mass.Paul Shipman Andrews, Syracuse, N. Y. Carl Auerbach, Madison, Wis.Edward S. Bade, Minneapolis, Minn.Henry W. Ballantine, Berkeley, Calif. Edward L. Barrett, Jr., Berkeley, Calif. Jacob H. Beuscher, Madison, Wis. Frederick K. Beutel, Lincoln, Neb.Thomas C. Billig, Washington, D. C.Boris I. Bittker, New Haven, Conn. Charles L. Black, Jr., New York, N. Y. William W. Blume, Ann Arbor, Mich. David R. Bookstaver, Washington, D. C. William J. Brockelbank, Moscow, Idaho Ralph S. Brown, New Haven, Conn. Charles Bunn, Madison, Wis.Norman Bursler, Chicago, 111.Clark M. Byse, Philadelphia, Pa.William L. Cary, Chicago, III.David F. Cavers, Cambridge, Mass. Thomas S. Checkley, Pittsburgh, Pa.Elias Clark, New Haven, Conn.Homer H. Clark, Jr., Missoula, Mont. Andrew V. Clements, Albany, N. Y. Hobart Coffey, Ann Arbor, Mich.Julius Cohen, Lincoln, Neb.Charles E. Corker, Stanford, Calif.Vern Countryman, New Haven, Conn. Harry M. Cross, Seattle, Wash.A. Mercer Daniel, Washington, D. C. Ritchie G. Davis, Bloomington, Ind.John P. Dawson, Ann Arbor, Mich. George H. Dession, New Haven, Conn. Fred A. Dewey, Cincinnati, Ohio J. R. DeWitt, Madison, Wis.Frank J. Dugan, Washington, D. C. Allison Dunham, New York, N. Y.Edgar N. Durfee, Ann Arbor, Mich. Richard W. Effland, Madison, Wis. Mortimer Eisner, Newark, N. J.Thomas I. Emerson, New Haven, Conn. Samuel D. Estep, Ann Arbor, Mich. Samuel M. Fahr, Iowa City, Iowa Hugh J. Fegan, Washington, D. C.Nathan P. Feinsinger, Madison, Wis. Richard H. Field, Cambridge, Mass. Vincent E. Fiordalisi, Newark, N. J. Justin H. Folkerth, Columbus, Ohio Henry H. Foster, Norman, Okla.John P. Frank, New Haven, Conn. Mitchell Franklin, New Orleans, La. Harrop A. Freeman, Ithaca, N. Y. Alexander H. Frey, Philadelphia, Pa. Ralph F. Fuchs, Bloomington, Ind.Carl H. Fulda, Newark, N. J.Alfred L. Gausewitz, Albuquerque, N. M. Bernard C. Gavit, Bloomington, Ind. Grant Gilmore, New Haven, Conn. Sheldon Glueck, Cambridge, Mass.George W. Goble, Urbana, III.Erwin N. Griswold, Cambridge, Mass.

David Haber, New Haven, Conn.Robert L. Hale, New York, N. Y.Fowler V. Harper, New Haven, Conn. George S. Harris, Newark, N. J.Alfred Harsch, Seattle, Wash.Henry M. Hart, Jr., Cambridge, Mass. Harold C. Havighurst, Chicago, 111.Joseph W. Hawley, Seattle, Wash.Paul R. Hays, New York, N. Y.C. Willard Heckel, Newark, N. J . Samuel M. Hesson, Albany, N. Y.Elmer E. Hilpert, St. Louis, Mo.John O. Honnold, Philadelphia, Pa. Harvey S. Hoshour, Albuquerque, N. M. Leo A. Huard, Washington, D. C.Robert M. Hunter, Columbus, Ohio.J. Willard Hurst, Madison, Wis.Jacob D. Hyman, Buffalo, N. Y.Louis L. Jaffe, Buffalo, N. Y.Howard Jenkins, Jr., Washington, D. C. Richard W. Jennings, Berkeley, Calif. George M. Johnson, Washington, D. C. Robert H. Jones, Albany, N. Y.Harry Kalven, Chicago, 111.Benjamin Kaplan, Cambridge, Mass. Wilbur G. Katz, Chicago, III.Paul G. Kauper, Ann Arbor, Mich. Frank Kennedy, Iowa City, Iowa Friedrich Kessler, New Haven, Conn. Ralph E. Kharas, Syracuse, N. Y.Spencer Kimball, Salt̂  Lake City, Utah. Stanley V. Kinyon, Minneapolis. Minn. David R. Kochery, Kansas City, Mo. Robert F. Koretz, Syracuse, N. Y. Heinrich Kronstein, Washington, D. C. Phillip B. Kurland, Bloomington, Ind. Harold D. Lasswell, New Haven, Conn. Franklin C. Latcham, Cleveland, Ohio Norman D. Lattin, Cleveland, Ohio Charles W. Leaphart, Missoula, Mont. Noyes E. Leech, Philadelphia, Pa.Arthur Lenhoff, Buffalo, N. Y.Edward H. Levi, Chicago, 111.A. Leo Levin, Philadelphia, Pa.Arthur R. Lewis, Newark, N. J.William B. Lockhart, Minneapolis, Minn. Louis Loss, New Haven, Conn.Robert B. Lowry, Cincinnati, Ohio John W. MacDonald, Ithaca, N. Y. Douglas B. Maggs, Durham, N. C.W. Howard Mann, Bloomington, Ind. Robert E. Mathews, Columbus, Ohio Robert C. McClure, Minneapolis, Minn. Philip Mechem, Philadelphia, Pa.Bernard Meltzer, Chicago, 111.James W. Moore, New Haven, Conn. Cornelius J. Moynihan, Boston, Mass. Addison A. Mueller, New Haven, Conn. Albert R. Mugel, Buffalo, N. Y.Joseph H. Murphy, Syracuse, N. Y. Nathaniel Nathanson, Chicago, 111.



50

Albert F. Neumann, Ann Arbor, Mich. Frank C. Newman, Berkeley, Calif.Val Nolan, Jr., Bloomington, Ind.Filmer S. C. Northrop, New Haven, Conn. Charles B. Nutting, Pittsburgh, Pa.Covey T. Oliver, Berkeley, Calif.John D. O’Reilly, Boston, Mass.George E. Palmer, Ann Arbor, Mich. Monrad G. Paulsen, Bloomington, Ind. Willard H. Pedrick, Chicago, 111.John dej. Pemberton, Jr., Durham, N. C. Maynard E. Pirsig, Minneapolis, Minn. Ervin H. Pollack, Columbus, Ohio Charles W. Quick, Washington, D. C. Joseph F. Rarick, Minneapolis, Minn. Horace E. Read, Minneapolis, Minn.John Wesley Reed, Ann Arbor, Mich. Willis L. Reese, New York, N. Y.Herbert O. Reid, Washington, D. C. Charles Rembar, Newark, N. J.Frank J. Remington, Madison, Wis.Charles A. Reynard, Baton Rouge, La, Ralph S. Rice, Cincinnati, Ohio William Gorham Rice, Madison, Wis. Luvern V. Rieke, Seattle, Wash.Stefan A. Riesenfeld, Minneapolis, Minn. William R. Roalfe, Chicago, 111.Fred Rodell, New Haven, Conn.Eugene V. Rostow, New Haven, Conn. Walter V. Schaefer, Chicago, 111.Morris M. Schnitzer, Newark, N. J.Oliver C. Schroeder, Cleveland, Ohio Franklin M. Schultz, Bloomington, Ind.

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