Brown v. Board of Education Supplemental Brief for the United States on Reargument

    N o s .  1 , . 2 ,  4 ,  8 , 1 0

O c t o b e r  T e r m , 1 9 5 3

No. 1
Oliver Brown, et al., appellants

Board of Education op Topeka, Shawnee County, Kansas, et al.

No. 2
H arry Briggs, Jr., et al., appellants

v.
R. W. Elliott, et al.

No. 4
Dorothy E. Davis, et al., appellants

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

No. 8.
Spottswood T homas Bolling, et at,., petitioners

v.
C. Melvin Sharpe, et al.

No. 10
N Francis B. Gerhart, et al... petitioners 

v.
Ethel Louise Belton, et al.

SUPPLEMENT A l BRIEF FOE THE UNITED STATES ON 
EEAEGUMENT



I N D E X

I and II
P®gs

The contemporary understanding of the Fourteenth Amend­
ment with respect to its effect on racial segregation in public 
schools_______________________ ___________________________  3

A. Introductory------------------------------------------------------------- 4
1. The reconstruction period--------------------------------  4
2. Public education in the United States in 1866-_ 8

B. The historical origins and background of the Fourteenth
Amendment_______________________________________ 9

1. The anti-slavery origins of the reconstruction
amendments_______________________________  9

2. The status of Negroes (legal, economic, and edu­
cational) at the close of the Civil War__________  14

C. The legislative history of the Thirteenth Amendment
and implementing legislation---------------------------------  17

1. The Thirteenth Amendment---------------------------  17
2. Implementing legislation: The Freedmen’s Bu­

reau bills, and the Civil Rights Act of 1866.. 20
D. The Fourteenth Amendment in Congress--------------------  32

1. The Stevens “ apportionment”  amendment____  33
2. The Bingham “ equal rights”  amendment--------- 36
3. H. J. Res. 127: the Fourteenth Amendment--. 41

a. The House debate------------   42
b. The Senate debate------------------------------- 48

E. The ratification of the Fourteenth Amendment by the
States____________________________________________  57

F. Contemporaneous actions, federal and state, bearing on
school segregation_________________________________  66

1. Federal legislation in the 39th Congress----------- 67
a. The Freedmen's Bureau Extension Act. 67
b. School legislation for the District of Co­

lumbia_____________________________  69
2. Legislation in Congress after 1866-------------------  72

a. Readmission of the Southern States____ 72
b. Legislative attempts to abolish school

segregation in the District of Colum­
bia_________________________________  76

c. Civil Rights Act of 1875_______________ 78
3. State legislation and decisions_________________ 86

a. Negro education in the North_________  90
b. Negro education in the South__________ 96
c. State judicial decisions on Negro edu­

cation _______________   100
d. Significance of the contemporaneous

state laws providing for school segre­
gation______________________________  104

G. Summary and conclusions___________________________  112
280315— 53-------1 (I)



n

in
Page

It. is within the judicial power, in construing the Fourteenth 
Amendment, to decide that racial segregation in public schools 
is unconstitutional. _ ^___________ ____________________ 132

IV

If the Court holds that racial segregation in public schools is 
unconstitutional, it has power to direct such relief as in its 
judgment will best serve the interests of justice in the cir­
cumstances_____________________________:__________________  152

V

If the Court holds that racial segregation in public schools is 
unconstitutional, it should remand these cases to the lower 
courts with directions to carry out this Court’s decision as 
speedily as the particular circumstances permit____________  168

A. Obstacles to integration___ ________________________ 170
B. The decrees_______________________________________  182

Conclusion__________________________________________________ 187

CITATIONS
Cases:

Adamson v. California, 332 U. S. 46_____________________  128
Addison v. Holly Hill Co., 322 U. S. 607_________________  155
Alexander v. Hillman, 296 U. S. 222_____________________  155
Armour & Co. v. Wantock, 323 U. S. 126________________  167
Atkin v. Kansas, 191 U. S. 207__________________________ 147
Atlantic Coast Line v. Florida, 295 IT. S. 301_____________  155
Attorney General v. Birmingham, 4 Kay & J. 528 (1858)__  158
Attorney-General v. Colney Hatch Lunatic Asylum, 4 Ch.

App. 146____   158
Attorney General v. Corporation of Halifax, 39 L. J. Ch.

N. S. 129___________________________    158
Attorney-General v. Finchley Local Board, 3 Times L. It. 356_ 158
Attorney-General v. Proprietors of the Bradford Canal, L. It.

2 Eq. 71___    158
Bailey v. City of New York, 38 Misc. (N. Y.) 641________  159
Baltimore v. Brack, 175 Md. 615________________________  158
Beasley v. Texas and Pacific Ry. Co., 191 U. S. 492_______ 156
Berea College v. Kentucky, 211 IT, S. 45______________- ___ 144
Board of Education v. Tinnon, 26 Kans. 1________________ 102
Bonner, In re, 151 U. S. 242____________________________  156
Boston Rolling Mills v. Cambridge, 117 Mass. 396________  158
Breed v. City of Lynn, 126 Mass. 367_________ ___________ 158
Breedlove v. Suttles, 302 IT. S. 277_______________________  126
Brehm v. Richards, 152 Md. 126_________________________ 158
Browder v. United States, 312 U. S. 335__________________  131



I l l

Brown v. Board of Trustees, 187 F. 2d 20-------------------------  163
Buchanan v. Warley, 245 U. S. 60-----------------------------------  141
Butterfield v. Zydok, 342 U. S. 524______________________  157
Caretti v. Broring Building Co., 150 Md. 198--------------------  158
Central Kentucky Co. v. Railroad. Commission, 290 U. S.

264____________________________________________________  155
Chapman v. City of Rochester, 110 N. Y. 273--------------------  159
Chase v. Stephenson, 71 111. 383--------------------------------------------  101
City of Manchester v. Farnworth (1930), A. C. 171------------  158
City of San Diego v. Van Winkle, 69 Cal. App. 2d 237-----  158
Civil Rights Cases, 109 U. S. 3 ----------------------------------------- 7, 80
Clark v. The Board of Directors, etc., 24 Iowa 267---------- 101, 103
Cohens v. Virginia, 6 Wheat. 264------------------------------------  166
Colegrove v. Green, 328 U. S. 549-----------------------------------------  150
Commonwealth v. Davis, 10 Weekly Notes 156 (1881)---------- 104
Commonwealth v. Helm, 9 Ky. L. Rep. 532----------------------  112
Commonwealth ex rel. Brown v. Williamson, 10 Phila. 490-_ 102
Cory v. Carter, 48 Ind. 327___________________________  107, 146
Camming v. Board of Education, 175 U. S. 528-------------  107, 144
Dallas v. Fosdick, 40 How. Pr. Rep. 249 (N. Y. Sup. Ct.

1869)_______________________________________________  89, 101
Davidson v. New Orleans, 96 U. S. 97------------------------------  131
Doremus v. Mayor and Aldermen of Paterson, 79 N. J. Eq.

63___________________________________________ - ______  159
Dove v. The Independent School District, 41 Iowa 689--------  101
Eccles v. Peoples Bank, 333 U. S. 426____________________  154
Euclid v. Amber Realty Co., 272 U. S. 365------------------------ 142
Everson v. Board of Education, 330 U. S. 1-----------------------  126
Fay v. New York, 332 U. S. 261_________________________  136
French v. Chapin-Sacks Mfg. Co., 118 Va. 117------------------ 159
Georgia v. Stanton, 6 "Wall. 50__________________________  150
Georgia v. Tennessee Copper Co., 206 IT. S. 230, 237 U. S.

474, 240 U. S. 650_______________________- _________  157, 164
Giles v. Harris, 189 U, S, 475___________________________  150
Gompers v. United States, 233 IT. S. 604---------------------------  130
Gong Lum v. Rice, 275 U. S. 78-------------------------------------  145
Great Central Ry. v. Doncaster Rural Council, 87 L. J. R.

N. S. 80_____________________________________________  158
Gregory v. Crain, 291 Ky. 194___________________________  158
Gandy v. Village of Merrill, 250 Mich. 416--------------------- 159
Harding v. Stamford Water Co., 41 Conn. 87--------------------  158
Harper v. Railway Co., 76 W. Va. 788-----------------------------  164
Harrisonville v. Dickey Clay Co., 289 IT. S. 334-----------------  158
Hecht Co. v. Bowles, 321 U. S. 321___________________- 155, 156
Heim v. McCall, 239 U. S. 175__________________________  147
Helvering v. Davis, 301 U. S. 619________________________  131
Holden v. Hardy, 169 U. S. 366_________________________  131
Home Bldg. & Loan Ass’n. v. Blaisd'ell, 290-UTS.'398—'-----  128

Gases—Continued Pase



IV

Cases—Continued Page
I-Iurd v. Hodge, 334 U. S. 24_________ _______ __________ - 111
Hurtado v. California, 110 U. S. 516_____________________  131
Inland Steel Co. v. United States, 306 U. S. 153___________ 156
Joy v. St. Louis, 138 U. S,JL____________________________ 164
Korematsu v. United States, 323 U. S. 214________________ 140
Legal Tender Cases, 12 Wall. 457________________________  128
Lohman v. The St. Paul R. R. Co., 18 Minn. 174------- , -----  159
Luther v. Borden, 7 Bow. 1______________________________ 150
Mahler v. Eby, 264 U. S. 32________________- ____________ 157
Maxwell v. Dow, 176 U. S. 581____________- __________  126, 140
McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U. S.

151________________________________ - ______________ 164, 167
McCulloch y . Maryland, 4 Wheat. 316___________ -----------  128
McLaurin v. Oklahoma State Regents, 339 U. S. 637----------  136,

148, 149, 151, 164
McPherson v. Blacker, 146 U. 8. 1-----------------------------------  126
Medley, Petitioner, 134 U. S. 160-------------------------------------  157
Mercoid Corp. v. Mid-Continent Co., 320 U. S. 661-----------  156
Metropolitan Rd. v. District of Columbia, 132 U. S. 1--------- 70
Minnesota v. National Tea Co., 309 U. S. 551------------------- 154
Missouri ex rel. Gaines v. Canada, 305 U. S. 337--------------  65,

107, 136, 143, 146, 164
Moody v. Village of Saratoga Springs, 17 App. Div. (N. Y.)

207, affirmed, 163 N. Y. 581__________________________  159
Neal v. Delaware, 103 U. S. 370_________________________  140
Nebraska v. Wyoming, 325 U. S. 589________________ ____ 164
Nixon v. Herndon, 273 U. S. 536---------------------------------  112, 141
Northern Securities Co. v. United States, 193 U. S. 197------  159
North Staffordshire Ry. Co. v. Board of Health, 39 L. J. Ch.

N. S. 131 (1870)_____________________________________  158
Pacific States Telephone and Telegraph Co. v. Oregon, 223

U. S. 118____________________________________________  150
People v. Easton, 13 Abbott’s Pr. R. (N. S.) 159 (Sup. Ct.,

1872)________________________________________________  103
People ex rel. John Congress v. The Board of Education, etc.,

101 111. 308___________________________________________ 102
Plessy v. Ferguson, 163 U. S. 537_____________________  140, 144
Porter v. Warner Co., 328 U. S. 395--------------------------------- 156
The Protector, 12 Wall. 700______________________________  150
Radio Station WOW, Inc. v. Johnson, 326 U. S. 120-----  154, 156
Railroad Commission of Texas v. Pullman Co., 312 U. S.

496__________________________________________________  156
Railway Express v. New York, 336 U. S. 106-------------------- 138
Roberts v. City of Boston, 5 Cush. (Mass.) 198--------- 12, 103, 145
Rochin v. California, 342 U. S. 165_______________________  131
Sammons v. City of Gloversville, 34 Mise. (N. Y.) 459------, 159
Screws v. United States, 325 U. S. 91-------------------------------  136



V

Cases—Continued Page
Shelley v. Kraemer, 334 U. S. 1______________  111, 141, 164, 181
Sipuel v. Board of Regents, 332 U. S. 631. 107, 136, 148, 164, 165
Slaughter-House Cases, 16 Wall. 36.----------------------  118, 119, 139
Smith v. The Directors, etc., 40 Iowa 518--------------------------  101
South Carolina v. United States, 199 U. S. 437------------------  131
Southern R. Co. v. Franklin &c. M. C. R. Co., 96 Va. 693—  164
Standard Oil Co. v. United States, 221 U. S. 1__________  160, 162
State v. White, 90 N. J. Eq. 621--------------------------------------- 159
State Board of Equalization v. Young’s Market Co., 299

U. S. 59______________________________________________ 126
State ex tel. Games v. McCann, 21 Ohio St. 198- 92, 95,103, 107,146
State ex rel. Hatfield v. Carrington, 194 la. 785------------------ 112
State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342-----------------  102, 146
Stovern v. Town of Colmar, 204 la. 983----------------------------  158
Strauder v. West Virginia, 100 IT. S. 303—  110, 111, 118,122,139
Suburban Land Co., Inc. v. Billerica, 314 Mass. 184---------  158
Sweatt v. Painter, 339 U. S. 629____  107, 136, 148, 149, 151, 164
Tod v. Waldman, 266 U. S. 113--------------------------------------  157
Town of Purcettville v. Potts, 179 Va. 514________________  159
Union Pacific Ry. Co. v. Chicago, <fee. Ry. Co., 163 U. S. 564. 155
United Public Workers v. Mitchell, 330 U. S. 75---------------  147
United States v. Aluminum Co., 322 U. S. 716, 148 F. 2d

416, 171 F. 2d 285, 91 F. Supp. 333___________________  160
United States v. American Tobacco Co., 221 U. S. 106, 191

Fed. 371___________________- ______________________  160, 185
United States v. Classic, 313 U. S. 299-----------------------------  130
United States v. International Harvester Co., 214 Fed. 987,

274 U. S. 693__________________ - ______________ 160, 162, 163
United States v. Morgan, 307 U. S. 183-----------: ------------ 155, 157
United States v. National Lead Co., 332 U. S. 319--------- 154, 160
United States v. Paramount Pictures, 70 F. Supp. 53, 334

U. S. 131, 85 F. Supp. 881, 339 U. S. 974___________  160, 163
United States v. Wong Kim Ark, 169 U. S. 649----------------  128
Van Camp v. Board of Education of Logan, 9 Ohio 406-----  12
Virginia, Ex parte, 100 U. S, 339------------ 109, 124, 137, 138, 140
Virginia v. Rives, 100 U. S. 313---------------------------  124, 137, 139
Virginian Railway Co. v. System Federation, 300 U. S. 515- _ 156
Ward v. Flood, 48 Cal. 36________________________—-- 103, 107
Weems v. United States, 217 U. S. 349----------------------------  129
West Virginia State Board of Education v. Barnette, 319

U. S. 624____________ _______________________________  151
Wiertian v. Updegraff, 344 U. S. 183-------------------------------- 147
Williams v. United States, 341 U. S. 97---------------------------  136
Winchell v. City of Waukesha, 110 Wis. 101-------------------- 159
Wolf v. Colorado, 338 U. S. 25_____________________—  131, 142
Yakus v. United States, 321 U. S 414-----------------------------  156



VI

Executive Orders and Regulations: Page
Emancipation Proclamation, 1863_______________________  4
Executive Order 9346, May 27, 1943, 8 F. R. 7183----------- 179
Executive Order 9980 of July 26, 1948, 13 F. R. 4311____ 179
Executive Order 10479, August 15, 1953, 18 F. R. 4899____ 179
Proclamation No. 16 of Sept. 22, 1862, 12 Stat. 1267______ 18
5 C. F. R. 410 1-7 (1952 Supp.)_____________ ____________ 179

Federal Statutes:
The Captured and Abandoned Property Act of 1863, 12

Stat. 820_____________________________________________  18
Civil Rights Act of 1866, 14 Stat. 27__________________ 5, 20, 59
Civil Rights Act of March 1, 1875, 18 Stat. 335___  7, 66, 80, 85
Confiscation Act of 1861, 12 Stat. 319-----------------------------  18
Enforcement Act of 1870, 16 Stat. 140___________________  6
Freedmen’s Bureau Extension Act, July 16, 1866, 14

Stat. 173_____________________________________________ 21, 67
Reconstruction Act of March 2, 1867, 14 Stat. 428------ 5, 72, 98
12 Stat. 376__________________________________________  4
Act of May 20, 1862, 12 Stat. 394_______________________  69
Act of May 21, 1862, 12 Stat. 407_______________________  69
12 Stat. 432____________________________________________  4
Act of June 25, 1864, 13 Stat. 187________________________ 69
13 Stat. 567, 774_______________________________________  19
Act of July 23, 1866, 14 Stat. 216_________________________ 69, 71
Act of July 28, 1866, 14 Stat. 343________________________ 69, 71
14 Stat. 428, sec. 5__________________________________ . . . .  98
16 Stat. 59, Dec. 22, 1869_________________________    76
16 Stat. 62_____________________________________________  74, 88
16 Stat. 67_____________________________________________  74, 88
16 Stat. 80____________________________________________ 74, 88
16 Stat. 363_________________________________________   75
18 Stat. 336____________________________________________  136
8 U. S. C.:

41 ____________________    124
42 _______________________________________________  124
41-48______________________________________________  136
44_________________________________________________  136

18 U. S. C.:
241-243____________________________________________, 136

28 U. S. C.:
1343_______________________________________________  136
2243_______________________________________________  157

State Constitutions and Statutes:
Alabama Constitution of 1867, Art. I, sec. 2----------------- __ 98
Alabama Laws 1868, p. 148 (Act of the Board of Educa­

tion) _________________________________________________ 100
Arkansas Laws 1866-67, No. 35, Sec. 5, p. 100-----------------------  99



VII

Arkansas Laws 1868, No. 52, Sec. 107:
P. 163_____________________________________________  100
P. 148_________________________ - __________________  100

California Laws 1866, c. 342, sec. 57-------------------------------- 89
Connecticut Public Laws 1868, p. 206-----------------------------  93
Delaware Laws 1875, ch. 48-----------------, -------------------------  89, 94
District of Columbia Code (1951 ed.):

§§ 31-670, 31-671__________________________________  171
§§ 31-1110, 31-1112________________________________ 170

Florida Constitution of 1868, Art. IX, sec. 1-------------------- - 100
Florida Laws 1865, No. 12, ch. 1475-------------------------------- 100
Georgia Laws 1870, No. 53, Sec. 32-------- ------------------------ , 100
Illinois Public Laws 1872, p. 700-------------------------------------  93
Illinois Public Laws 1874, p. 120-------------------------------------  93
Indiana Laws 1869 (Special session), p. 41---------------------- 89, 93
Indiana Laws 1877, p. 124-----------------    93
Kansas Laws 1867, ch. 125______________________________  93
Kentucky Laws (Gen. St. 1873—Bullock & Johnson),

ch. 62,'Art. I ll, § 2_________________________________  110
Kentucky Laws 1873-1874, eh. 521---------------------------------  94
Louisiana Constitution of 1868:

Art, 2_____________________________________________  98
Art. 13____________________________________________  99
Arts. 135, 136______________________________________ 98

Maryland, Annotated Code (Flack ed., 1951), Art, 77,
§H 2  (4), 208________________________________________  171

Maryland Laws 1868, c. 407, c. IX -------------- ------------------89, 94
Maryland Laws 1872, c. 377, c. X V III---------------------------  94
Massachusetts Acts and Resolves 1867, p. 820-----------------  61
Michigan Laws 1867, Act. No. 34-----------------------------------  93
Mississippi Code (1942 ed.), Art. 15, §§ 6808-6811------------- 171
Mississippi Constitution of 1868, Art. I, Sec. 21---------------  99
Missouri Laws (Wagner’s Mo. Stat. 1870 (2d ed.) ch. 80,

§ 2 )_____________________________________ ____________ 111
North Carolina Laws, 1868-1869, ch. 184, Sec. 50, p. 471__ 100
51 Ohio Laws, p. 429, sec. 31 (1853), as amended, 61 Ohio

Laws 31, sec. 4 (1864)________________________________  88
Oregon (Gen. Laws of Oregon, 1843-1872, Civil Code,

§ 918)_________________________________________________  111
South Carolina Code (1952), §§ 21-251, 21-290_________  170
South Carolina Constitution of 1868, Art. X, secs. 10, 39__ 98
Vernon’s Texas Civil Statutes, title 49, ch. 8--------------- - 171
Virginia Laws 1869-1870, ch. 259, Sec. 47-------------------------- 100
West Virginia Acts of 1872-1873, p. 102, reenacting chapter 

116 of the 1870 Code____________________ __________

State Constitutions and Statutes—Continued Pags

110



VIII

Congressional Reports and Documents: Pago
H. Ex. Doc. No. 315 (1871), 41st Cong., 2d Sess_________  8,

14, 16, 17, 90
H. J. Res. 127, 39th Cong., 1st Sess__________________21, 41, 42
H. R. 380, 42d Cong., 2d Sess___________________________  79
H. R. 613, 39th Cong., 1st Sess_________________________  67
H. R. 783, 41st Cong., 2d Sess__________________________  75
H. R. 796, 43d Cong., 2d Sess___________________________80, 83
H. R. 1050, 42d Cong., 2d Sess__________________________ 79
H. R. 1335, 41st Cong., 2d Sess_________________________  76
S. 1, 43d Cong., 1st Sess________ ________________________  79, 81
S. 9, 39th Cong., 1st Sess-----------------------------------------------  22
S. 60, 39th Cong., 1st Sess__________________________  21, 23, 25
S. 61, 39th Cong., 1st Sess______________________________ 23, 25
S. 365, 42d Cong., 2d Sess_______________________________ 78
S. 916, 41st Cong., 2d Sess---------------------------------------------- 78
S. 1244, 41st Cong., 3d Sess_____________________________  76
S. Doc. No. 14, 83d Cong., 1st Sess., pp. 4 -8 -------------------  173
S. Doc. 711, 63d Cong., 3d Sess. (Journal of the Joint

Committee on Reconstruction)______ 32, 33, 36, 37, 38, 41, 42
State Miscellaneous:

Alabama Senate Journal 1866, p. 32--------------,-----------------  63
Alabama Senate Journal 1868, p. 14-------------------- ----------  97
Alabama Convention Journal, pp. 153, 237-238---------------  98
Arkansas Convention Debates and Proceedings, p. 645

et seq________________________________________________ 98, 100
Arkansas House Journal 1868-----------------------------------------  64, 97
Florida Senate Journal 1866, p. 8__________________ _____  64
Georgia Convention Journal, p. 151--------------------------------  98
Georgia House Journal 1870, p. 416--------------------------------  97
Georgia Senate Journal 1866, pp. 65-71---------------------------  63
Illinois Doc. 1869, vol. 2, p. 557--------------------------------------  91
Illinois Doc. 1871, pp. 355 et seq. (Report of Superintendent

of Public Instruction 1869-1870)---------------------------------  93, 95
Illinois Doc. 1871, pp. 355-356 (Report of Superintendent

of Public Instruction 1869-1870)---------------------------------  95
Illinois Doc. 1873, vol. 2 (Report of Superintendent of

Public Instruction 1871-1872, pp. 115 et seq.)---------------  95
Illinois Senate Journal 1867 (Governor Oglesby), p. 29-----  61
Indiana Doc. 1865-1866, p. 339 (Report of Superintendent

of Public Instruction 1865-1866)------------- -------------------   94
Indiana Doc. 1867-1868 (Report of Superintendent of

Public Instruction 1867-1868)-------------------------------------  93, 94
Indiana Doe. 44th Reg. Sess. (1867), Part I, p. 338---------  91
Indiana Senate Journal 1867, pp. 14, 40 et seq------------------ 60
Louisiana Convention Journal, pp. 60-61, 94, 200-202, 

268-270, 277___________________________________   98



IX

Louisiana House Debates 1866, pp. 209-10, 217-20, 246-7.. 100
Louisiana Legislative Documents 1870, Message of the

Governor, p. 7______________ ______ __________________  97
Maryland Docs. 1870, House Doc. A., pp. 14-15_________  92
Mississippi Convention Journal, pp. 316, 318, 479-480___  98
New Hampshire House Journal 1866, p. 176, et seq_______  62
New York Assembly Journal 1867, vol. 1, p. 13__________  61
North Carolina Public Docs. 1867-1868, Doc. No. 2, Sess.

1868, pp. 5-6_________________________________________ 97
Ohio Doc. 1869, pp. 885, et seq. (18th Annual Report)____  96
Ohio Constitutional Convention, 1873-1874, Debates, vol,

2, part 2:
pp. 2238, et seq____________________________________  96
pp. 2240-41____________________________ __________  96

Pennsylvania Leg. Rec., 1867 (Jenks Penn. Debates), 
Appendix:

p. X L I----------------------------------------------------------------------- 61
p. IX _______________________________________     62
p. C C C X L II-._________________________    96

Pennsylvania Leg. Rec., 1867, Appendix, pp. C C C XLII.. 96 
Pennsylvania Leg. Rec., 1867 (Taylor in the Pennsylvania

Debates), Appendix, p. X X II___________________________  61
South Carolina Convention Proceedings, pp. 71, 88, 100,

685-709, 889, 894, 899-901_____________ . . . _______ . . .  98
Tennessee Senate Journal (Gov. Brownlow called Session),

1866, p. 4 . . ........................ ............... .......... ......... ............. 01
Texas Convention Journal, I, pp. 896, 898, 912__________  98
Virginia Convention Journal, pp. 67, 299, 308, 333, 335,

336, 339, 340___________________________        98
Wisconsin Senate Journal, 1867, p. 96___________________  62

General Miscellaneous:
American Freedman 1866, p. 18_________ _____ _________  68
Barnard, Special Report of the Commissioner of Education,

II. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871)___  8,
14, 16, 17, 90

Beach, High on Injunctions (4th ed.), sec. 746____________ 159
Beach, Injunctions (1895), sec. 2________________________  159
Bond, The Education of the Negro in the American Social

Order, New York, 1934________________________________  16
Brandeis, The Living Law, 10 111. L. Rev. 461 (1916)........... 131
Brevier, Legislative Reports 1865______ __________ ________ 91, 95
Brevier, Legislative Reports 1867, p. 80.__________________  64
Brevier, Legislative Reports (1869), pp. 193 et seq., 340

et seq., 490 et seq........................................ ......... ...............  95
11 Brevier, Legislative Reports (1869 Extra Session), pp. 114 

et seq., 387 et seq________ ______ . . . . .

State Miscellaneous—Continued j?w

95



X

Buck, The Road to Reunion, 1865-1900 (1937)------------------- 7
Bustard, The New Jersey Story: The Development of' Ra­

cially Integrated Public Schools, 21 Journ. of Negro Edu­
cation, 275 (1952)_________________      178

Cardozo, The Growth of the Law (1924)____________________ 131
Cardozo, The Nature of the Judicial Process (1921)----------- 131
Cardozo, The Paradoxes of Legal Science (1928), p. 99-------  131
Chicago Com. on Human Relations, Report of the, The

People of Chicago, 1947-1951---------------------------------- —  181
Cubberley, Public Education in the United States (1919),

p. 119, et seq_______________________________________  8, 9, 12
Curtis, The Republican Party (1904), Vol. I, Ch. V I---------  13
Douglas, Stare Decisis (1949)------------------------ :-----------------  132
Dunning, Reconstruction Political and Economic 1865—1877

(1907), p. 41_________   7
Dumond, Antislavery Origins of the Civil War in the United

States (1939) ___________________________________  10, 11, 13
Flack, The Adoption of the Fourteenth Amendment (1909),

Chs. I ll, IV__________________________ _____ ______  59, 60, 63
Frankfurter, Law and Politics (1939)--------------------------------  132
Frankfurter, Mr. Justice Holmes’ Constitutional Opinion

(1923), 36 Harv. L. Rev. 909_________________________  131
Frankfurter, Mr. Justice Holm.es and the Supreme Court

(1938)________________________________________________ 132
Graham, The Early Antislavery Backgrounds of the Four­

teenth Amendment (1950), Wis. L. R. 479----------------------  10
Graham, Procedure to Substance— Extra-Judicial Rise of

Due Process, 1830-1860, 40 Cal. L. R. 483 (1953)______  10
Holmes, The Common Law (1881)----- ------------- ----------- — 131
Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897)— 131
Housing and Home Finance Agency, Public Housing

Administration, 1953, Open Occupancy in Public Housing_ 181
Hughes, Addresses (1916), pp. 354-355---------------------------- 131
Hughes, The Supreme Court of the United States (1928)------- 131
Hurd, Law of Freedom and Bondage in the United States

(1862), Vol. 2, pp. 1-218______________________________ 14
Integration of the Negro into American Society (1951)-------  182
Jackson, Full Faith and Credit (1945)------------------------------  132
Jackson, The Struggle for Judicial Supremacy (1941)------ 132
James, The Framing of the Fourteenth Amendment (1939)- 50
Jenkins; Pro-Slavery Thought in the Old South (1935)--------- 10, 11
Knight, Public Education in the South (1922)------------------- 8, 9
Mangum, The Legal Status of the Negro (1940)------------------  112
McPherson, Political History of the United States, 1860-1865

(1865)_____________________    119
McPherson’s, Scrap Book, 14th Amendment, p. 84-------—  65

General Miscellaneous—Continued Page



XI

New York Times, Aug. 24, 1953, p. 21____________________  178
Nye, Fettered Freedom (1949)_________________________10, 11, 15
Pomeroy, Equity Jurisprudence (5th ed.), Secs. I l l ,  170,

176a--------------------------------------------------------------------------  155
Pomeroy’s Eq. Rem. (1905):

Secs. 531, 535______________________________________  159
Sec. 761______________________________  164

Randall, The Civil War and Reconstruction (1937), p. 724__ 15
Reed, Stare Decisis and Constitutional Law (1938), No. 35

Penna. Bar Asa’n Quarterly, 131_______________________ 131
Selected Studies of Negro Employment in the South: 8 

Southern Plants of International Harvester Company
(National Planning Association, 1953)_    181

1 Seton, Judgments and Orders (7th ed.), p. 612__________  158
Statistics of State School Systems 1949-1950 (Chapter 2 of 

Biennial Survey of Education in the United States
(1948-1950)___________________________________ . _____  172

Stephenson, Race Distinctions in American Law (1910),
Ch. IV______ ______________________ _________ _____ 14, 15

Stone, Fifty Years’ Work of the Supreme Court (1928), 14
A. B. A. Journ. 428___________________________________ 131

Stone, Law and Its Administration (1924)_______________  131
Story, Equity Jurisprudence (14th Ed.), Secs. 28, 578__ _ 155
ten Broek, The Anti-Slavery Origins of the Fourteenth

Amendment (1951)_____________________________  10, 11, 12, 13
Toledo Board of Community Relations, Report of the,

1951_____     181
U. S. News & World Report, October 16, 1953, pp. 46, 99_- 180
“ Transitional Housing Area,”  Report of the Director of

the Mayor’s Interracial Committee in Detroit (1952)__  181
United Press Survey, New York Times, Jan. 22, 1951___  181
Wickersham, J. P., A History of Education in Pennsyl­

vania (1886), p. 506__________________________________  109
Wilson, Rise and Fall of Slave Power in America (1874):

Vol. I, pp. 496-498__________    12
Vol. II, p. 406_____________________________________  13, 14

Woodward, Reunion and Reaction: The Compromise of 
1877 and the End of Reconstruction (1951)_____________  7

General Miscellaneous—Continued pag0



Jjitihe$ttpremj<!|mtrt«f J M i t M  jltstea
O ctober T e r m , 1953

No. I 1

O liver  B r o w n , et a l ., app ellan ts

v.
B oard of E d u ca tio n  of T o p e k a , S h a w n e e  

C o u n t y , K a n sa s , e t  a l .

SUPPLEMENTAL BRIEE BOB THE UNITED STATES ON 
REARGUMENT

On June 8, 1953, the Court ordered these eases 
restored to the docket for reargument, and re­
quested counsel in their briefs and on oral argu­
ment to discuss certain questions. The order also 
invited the Attorney General of the United States 
to take part in the oral argument and to file an 
additional brief if he so desires.2

1 Together with No. 2, Briggs, et al. v. Elliott, et al.; No. 4, 
Dorothy E. Davis, et al. v. County School Board, of Prince 
Edward County, Virginia, et al.; No. 8, SSpottswood Thomas 
Bolling, et al. v. C. Melvin Sharpe, et al.; and No. 10, Francis 
B. Gebhart, et al. v. Ethel Louise Belton, et ad.

2 The full text of the Court’s order is as follows (345 U. S. 
972-973):

“Each of these cases is ordered restored to the docket and is 
assigned for reargument on Monday, October 12, next. In

(l)



2

Since tit e United States is not a party to any of 
these cases and is participating herein solely as an 
amicus curiae, it submits this brief as an objective 
non-adversary discussion of the questions stated in 
the Court’s order of reargument. No attempt has 
been made to reexamine other questions briefed 
and argued at the last term.
their briefs and on oral argument counsel are requested to 
discuss particularly the following questions insofar as they 
are relevant to the respective cases:

“ 1. What evidence is there that the Congress which sub­
mitted and the State legislatures and conventions which 
ratified the Fourteenth Amendment contemplated or did not 
contemplate, understood or did not understand, that it would 
abolish segregation in public schools ?

“2. I f  neither the Congress in submitting nor the States in 
ratifying the Fourteenth Amendment understood that com­
pliance with it would require the immediate abolition o f seg­
regation in public schools, was it nevertheless the understand­
ing of the framers o f the Amendment 

“  (a) that future Congresses might, in the exercise o f their 
power under section 5 of the Amendment, abolish such segre­
gation, or

“ (b) that it would be within the judicial power, in light 
o f future conditions, to construe the Amendment as abolish­
ing such segregation o f its own force?

“ 3. On the assumption that the answers to questions 2 (a )  
and (b) do not dispose o f the issue, is it within the judicial 
power, in construing the Amendment, to abolish segregation 
in public schools ?

“4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment

“ (a) would a decree necessarily follow providing that, 
within the limits set by normal geographic school districting, 
Negro children should forthwith be admitted to schools of 
their choice, or

“ (b) may this Court, in the exercise of its equity powers, 
permit an effective gradual adjustment to be brought about



3

I  and II
THE CONTEMPORARY UNDERSTANDING OP THE FOUR­

TEENTH AMENDMENT W ITH  RESPECT TO ITS EFFECT 
ON RACIAL SEGREGATION IN  PUBLIC SCHOOLS

The first two questions asked by the Court are as 
follows:

1. What evidence is there that the Con­
gress which submitted and the State legisla­
tures and conventions which ratified the 
Fourteenth Amendment contemplated or 
did not contemplate, understood or did not 
understand, that it would abolish segrega­
tion in public schools ?

2. I f  neither the Congress in submitting 
nor the States in ratifying the Fourteenth 
Amendment understood that compliance

from existing segregated systems to a system not based on 
color distinctions?

“ 5. On the assumption on which questions 4 (a) and (b) 
are based, and assuming further that this Court will exercise 
its equity powers to the end described in question 4 (b ), 

“ (a) should this Court formulate detailed decrees in these 
cases;

“ (b) i f  so, what specific issues should the decrees reach; 
“ (c) should this Court appoint a special master to hear 

evidence with a view to recommending specific terms for 
such decrees;

“ (d) should this Court remand to the courts o f first in­
stance with directions to frame decrees in these cases, and 
if so what general directions should the decrees o f this Court 
include and what procedures should the courts o f first in­
stance follow in arriving at the specific terms o f more de­
tailed decrees?

“ The Attorney General of the United States is invited to 
take part in the oral argument and to file an additional 
brief if he so desires.”



4

with it would require the immediate aboli­
tion of segregation in public schools, was it 
nevertheless the understanding of the fram­
ers of the Amendment

(a) that future Congresses might, in the 
exercise of their power under section 5 of 
the Amendment, abolish such segregation, or

(b) that it would be within the judicial 
power, in light of future conditions, to con­
strue the Amendment as abolishing such 
segregation of its own force ?

Since the historical materials examined are rele­
vant to both questions, they are here treated 
together.3

A. INTRODUCTORY

1. The reconstruction 'period

Abolition of slavery by national action began 
while the Civil War was in progress, with Con­
gressional abolition in the District of Columbia 
(12 Stat. 376) and the territories (12 Stat. 432) 
in 1862, and President Lincoln’s Emancipation 
Proclamation in 1863. The Thirteenth Amend­
ment, abolishing slavery everywhere within the 
United States, was proposed by Congress on Feb­
ruary 1, 1865, and declared adopted on December 
18, 1865.

After the termination of hostilities, new govern­
ments were established in the Southern states 
under Presidential authority. Negroes were not

3 The Appendix, which is contained in a separate volume, 
consists of detailed factual summaries o f the materials on 
the vai’ious aspects o f the historical questions which are 
dealt with in this brief.



5

allowed, however, to participate in the elections 
held in these states, and in December 1865 Con­
gress refused to seat members chosen in such elec­
tions. At the same session Congress created a 
Joint Committee on Reconstruction, to which all 
matters concerning the South were referred and 
which originated the various measures which 
formed the program of Congressional reconstruc­
tion.

During 1866 Congress, over the opposition of 
President Johnson, extended the functions of the 
Freedmen’s Bureau, which had been created in 
1865 to promote the welfare of the freed Negroes 
and to protect their civil rights. In April of the 
same year it enacted over a veto the Civil Rights 
Act (14 Stat. 27), which was designed to enforce 
by Federal authority the civil rights of Negroes, 
including their right to “ full and equal benefit of 
all laws and proceedings for the security of per­
son and property * *

Two months later, on June 16, 1866, Congress 
proposed the Fourteenth Amendment. By March 
1867 most of the Northern states had ratified the 
Amendment. Three border states had rejected it, 
however, and of the Southern states only Ten­
nessee had ratified it, making a total of less than 
the required three-fourths. The elections of 1866 
had returned to Congress a clear majority in 
favor of the program of Congressional recon­
struction. Accordingly, in March 1867 Congress 
enacted the Reconstruction Act (14 Stat. 428)

280315—53----- 2



6

under which the Southern states (except for Ten­
nessee) were divided into five military districts 
and the existing state governments were declared 
to be provisional only. The Act provided that 
military supervision would be withdrawn, and a 
state’s representatives readmitted to Congress, 
after it had (a) framed a new constitution “ in 
conformity with the Constitution of the United 
States in all respects,” (b) adopted universal 
male suffrage, and (c) ratified the Fourteenth 
Amendment. By June 1868 seven states had met 
all of these conditions and were restored to repre­
sentation. On July 21, 1868, the Amendment, 
having been ratified by the legislatures of thirty 
of the thirty-seven states to which it was sub­
mitted, was declared adopted. Subsequently, the 
other three Southern states ratified the Amend­
ment, and their representatives were readmitted 
to Congress.

The impeachment of President Johnson in 
1868, arising out of his differences with Congress 
on reconstruction policy, was unsuccessful, but the 
election of Grant that year brought into office a 
President who was in agreement with the Con­
gressional program. To assure the Negroes the 
right to vote, protected by the national govern­
ment, a third constitutional amendment, the F if­
teenth, was proposed by Congress in February 
1869 and came into effect in March 1870. In the 
latter year the Enforcement Act (16 Stat. 140)



7

reenacted the Civil Rights Act of 1866 and im­
posed civil and criminal sanctions for violation of 
rights secured by the Fourteenth and Fifteenth 
Amendments.

Congress in 1875 enacted a new Civil Rights 
Act (18 Stat. 335)4 declaring that all persons 
within the jurisdiction of the United States shall 
be entitled to the “ full and equal enjoyment”  of 
the accommodations of inns, public conveyances, 
theatres, and other places of public amusement, 
and providing civil and criminal penalties for vio­
lations. That Act marked the end of attempts 
during the reconstruction period to enforce by 
federal legislation equality of treatment for the 
emancipated Negroes.

After the determination in 1877 that Hayes 
had been elected President, the use of Federal 
authority to support the reconstruction govern­
ments in the Southern states ceased.5

4 This Act was held unconstitutional in 1883 in the Civil 
Rights Cases, 109 U. S. 3.

5 An historian has described the settlement o f the Hayes- 
Tilden election dispute as follow s: “ Generalized, this famous 
bargain meant: Let the reforming Republicans direct the 
national government and the southern whites may rule the 
Negroes. Such were the terms on which the new adminis­
tration took up its task. They precisely and consciously 
reversed the principles o f reconstruction as followed under 
Grant, and hence they ended an era.”  Dunning, Reconstruc­
tion, Political and Economic, 1865-1877 (1907), p. 41; see 
also Woodward, Reunion and Reaction: The Compromise 
of 1877 and the End of Reconstruction (1951); Buck, The 
Road to Reunion, 1865-1900 (1937).



8

2. Public education in the United States in 1866

The quarter-century before the Civil War wit­
nessed the initial efforts to establish free, tax- 
supported public schools throughout the United 
States.6 By 1861 the principle of free public 
education had become accepted in ahnost all of 
the Northern states. Common schools open to all, 
and supported by general taxation, existed in 
most of the cities and towns, and in a large num­
ber of rural areas.7

In the South, however, different conditions pre­
vailed. The essentially rural and sparsely settled 
character of the region made communication slow 
and community cooperation difficult. The institu­
tion of slavery and the acceptance of class and 
social distinctions were formidable barriers to the 
growth of public education. In addition, reli­
gious influences tended to encourage the view that 
education was a parental obligation and not one 
which the state should assume. Consequently, 
education in the South prior to the Civil War was 
left largely to private groups.8

Outside of some of the larger cities, such public 
schools as existed in the South were generally

6 Cubberley, Public Education in the United States (1919), 
p. 119 et seq.; Knight, Public Education in the So-uth (1922), 
pp. 196-198.

7 Cubberley, supra, p. 211. A  survey of the public school 
systems in many cities and towns during this period may be 
found in Barnard, Special Report of the Commissioner of 
Education, H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (1871), 
pp. 77-130.

8 Knight, supra, pp. 264-265.



9

maintained for the benefit of only the children of 
the poor.9 Even these were disrupted by the war. 
Teachers and students were called away to other 
tasks, and the state school funds were diverted 
to other purposes. At the close of the war the 
Southern states were faced with the task of com­
pletely rebuilding their educational systems.10 
The development of the present-day system of 
public education did not really begin in the South 
until the post-war period.11

Although public education was far more ad­
vanced in the North than in the South, the condi­
tions in the former region hardly approximated 
those existing today. The schools were often 
small one-room affairs where, in rural areas at 
least, not much more than the three R ’s was 
taught. In many states the school term was only 
three months of a year. Compulsory school at­
tendance was scarcely known. Ungraded schools 
were common in rural areas, and public high 
schools were rare. The quality of instruction was 
generally low, judged by modern standards.12

B. THE HISTORICAL ORIGINS AND BACKGROUND OF THE 
FOURTEENTH AMENDMENT

1. The anti-slavery origins of the reconstruction amenchnents

The constitutional changes of the Reconstruc­
tion period, and the civil rights legislation which

9 Ibid.
10 Id., pp. 306,313-317.
11 Cubberley, supra, p. 251.
12 Cubberley, supra, ch. V III, Knight, supra, p. 294 et seq.



10

accompanied them, were the culmination of more 
than thirty years of controversy engendered by 
the anti-slavery movement. The growth of that 
movement and the formation of its constitutional 
philosophy, particularly in relation to the Four­
teenth Amendment, have been the subject o f 
several recent historical and legal studies.13 These 
studies show that the conception of the principles 
incorporated in the Constitution by the Recon­
struction Amendments, and the line of their 
development and growth, are to be found in the 
long and bitter political and ideological conflict 
over slavery that preceded the Civil War.

The abolitionists propounded a philosophy of 
equality expressed most frequently in terms de­
rived from the Declaration of Independence, an 
equality which implied a duty of government to 
apply laws impartially to protect the “ natural 
and fundamental”  rights of all persons, white 
and black alike.14 * “ Just as the great objection 
to slavery was its lack of legal protection for 
slaves, as well as the concomitant, invidious, 
and discriminatory treatment of free Negroes

13 Nye, Fettered Freedom (1949); ten Broek, The Anti­
slavery Origins of the Fourteenth Amendment (1951); Dia­
mond, Antislavery Origins of the Civil War in the United 
States (1939); Jenkins, Pro-Slavery Thought in the Old 
South (1935) ; Graham, The Early Antislavery Backgrounds 
of the Fourteenth Amendment, (1950) Wis. L. Rev. 479, 610; 
Graham, Procedure to Substance—Extra-Judicial Rise of 
Due Process, 1830-1860, 40 Calif. L. Rev. 483 (1953).

14 ten Broek, supra, pp. 7, 96; Nye, supra, p. 177 et seq.;
Diamond, supra, pp. 71-73.



11

and the wholesale public and private in­
vasion of the rights of abolitionists, so the first 
object of the abolitionists was to gain legal pro­
tection for the basic rights of members of all three 
classes. ’ ’ 16 To gain that legal protection from the 
governments of the states where slavery existed 
was a practical impossibility; so the full impetus 
of the movement was directed towards securing 
national protection.16

Against the philosophy of absolute equality be­
fore the law, pro-slavery advocates posed the con­
cept of “ classified equality among equals.” 17 To 
them, slavery was not a necessary evil but a “ posi­
tive good,”  for by relegating a class in society 
naturally incapable of self-direction to a position 
legally subordinate to that of a class which was 
naturally superior and dominant, true equality 
was possible within each class.18

The agitation of the anti-slavery forces for 
absolute equality stimulated numerous efforts to 
eradicate from the laws of Northern states dis­
tinctions based on color; these were regarded as 
badges of servitude irreconcilable with the equality 
which was the natural right of all men.19 An 
example was the campaign to open the Massa­
chusetts common schools to all, without regard to 
color. Those schools were tax supported and free,

16 ten Broek, supra, p. 97; see Dumond, supra, p. 43.
16 ten Broek, supra, ch. I l l ,  IV , passim.
17 Jenkins, supra, ch. I l l  passim; Nye, supra, pp. 185-189.
18 Iiid.
19 Nye, supra, pp. 81-84; ten Broek, supra, pp. 42,54, note 17.



12

and governed by local boards.20 Some boards 
yielded to local pressure to abolish segregation; 
others did not, and efforts were made after 1844 to 
obtain remedial legislation.21 In 1849, after failure 
of these efforts, an attempt was made to secure 
judicial invalidation of school segregation. In 
that year, in Roberts v. City of Boston, 5 Cush. 
(Mass.) 198, Charles Sumner argued before the 
Supreme Judicial Court that segregation in the 
Boston common schools was a violation of the 
state constitutional guarantee of equality, because 
segregation was in itself a denial of equality.22 
He lost the case, but in 1855 the Massachusetts 
legislature forbade school segregation.

In Van Camp v. Board of Education of Logan, 
9 Ohio 406 (1859), it was held that mulatto chil­
dren were not entitled to enter the white common 
schools. The basic philosophy of the anti-slavery 
movement was expressed in the dissenting opinion, 
which declared that “ caste-legislation”  was incon­
sistent with the theory of a free and popular gov­
ernment “ that asserted in its bill of rights the 
equality of all men”  (p. 415). Twelve years later, 
Senator Wilson, a leader in the Congressional pro­
gram of reconstruction, referred to these struggles 
for Negro access to common schools as an integral

20 Cubberly, Public Education in the United States (1919), 
p. 163 et seq.

21 Wilson, Rise and Fall of the Slave Power in America 
(1872), vol. I, pp. 495-498.

22 ten Broek, supra, p. 54, note 17.



13

part of the “ contest of forty years between liberty 
and equality on the one side and slavery and privi­
lege on the other”  for securing “ perfect and abso­
lute equality in rights and privileges”  for the 
Negro.23

This application of the philosophy of absolute 
legal equality to invalidate distinctions based on 
race or color in the Northern states was, however, 
a side issue. The main objective was complete 
abolition of slavery, and to accomplish that pur­
pose it was necessary to secure political control of 
the national government.24 These efforts produced 
a new national political organization—the Repub­
lican Party—established in 1854, and formed 
specifically to promote anti-slavery objectives.25 
Control of the national government by that party 
after the election of 1860 was the occasion for 
assertion by the South of the right of sovereign 
states to secede from the Union to protect their 
domestic institutions; 26 and control of the national 
government by that party after the Civil War was 
the occasion for amendment o f the Constitution to 
embody the principle of “ perfect and absolute”  
equality before the law for which the anti-slavery 
advocates had so long agitated.

23 Congressional Globe, 41st Cong., 3d Sess., p. 1061.
24 ten Broek, supra, ch. VI.
25 Wilson, supra, vol. II , p. 406 et seq.; Curtis, The Repub­

lican Party (1904), vol. I, ch. VI.
26 Dumond, supra, pp. 123-126.



14

2. The status of Negroes (legal, economic, wnd educational) 
at the close of the Civil War

By 1865 slavery had been ended in fact. In 
that year it was constitutionally abolished. 
Emancipation did not, however, make the former 
slave a free man in all respects. Abolition of 
slavery did not wipe out at a stroke the “ badges 
of servitude”  which had existed for so many 
generations. The Negro “ freedmen”  were still 
commonly regarded as an inferior race. Legally, 
economically, and educationally, the free colored 
population was still subject to disabilities not 
imposed on white citizens, both in the Southern 
states and, to a lesser extent, in some of the 
Northern states.

Before the Civil War the states had varied 
in their treatment of free colored people. Some 
slave states had required freed Negroes to emi­
grate ; where permitted to remain, they were lim­
ited in their rights to contract, hold property, sue, 
appear as witnesses, and to vote or serve on 
juries. In some Northern states immigration of 
free Negroes was prohibited; in many more, the 
right of suffrage was denied.27

27 Hurd, Law of Freedom and Bondage in the United 
States (1862), vol. 2, pp. 1-218, contains a complete compila­
tion and digest o f these laws; and see Barnard, Special Re­
port of the Commissioner of Education, H. Ex. Doc. No. 
315, 41st Cong., 2d Sess., Appendix, Legal Status o f the 
Colored Population etc., pp. 301-400; Wilson, Rise and Fall 
of the Slave Power in America (1874), vol. II , p. 181 et 
seq.; Stephenson, Race Distinctions in American Law 
(1910), ch. IV . Only in the states of Maine, New Hamp­



15

At the close of the war, so-called “Black Codes”  
designed to restrict the freedom of the newly- 
freed colored people were enacted in the Southern 
states. These Codes contained provisions dis­
criminating against Negroes with regard to 
such matters as employment and the right to 
engage in business.28 They were regarded by the 
majority in Congress as “ an attempt on the part 
of Johnson’s reorganized governments to rees­
tablish virtual slavery and thus reverse the result 
of the war.” 29

Despite emancipation, the Negroes remained on 
the lowest economic level. Cut adrift without 
money or property, they generally remained de­
pendent upon their former owners for employ­
ment. The Black Codes only reinforced that 
dependence.

In the field of education the opportunities of 
the Southern Negro were far inferior to those of 
his brother in the North. Long before the war, 
most of the Southern states had enacted legisla­
tion prohibiting the education of all Negroes, free 
or slave, because of the widespread belief that 
such education was conducive to rebelliousness.30
shire, Vermont, Massachusetts, and Rhode Island had 
Negroes received the full right o f su If rage.

28 Stephenson, supra, ch. IV.
20 Randall, The Civil War and Reconstruction (1937), p. 

724.
30Nye, Fettered Freedom (1949), pp. 70-71. See the 

speech o f Senator Wilson (Mass.) on April 12,1860, review­
ing these laws, Congressional Globe, 36th Cong., 1st Sess., 
p. 1685.



16

The few Negro schools were operated clandes­
tinely. It has been estimated that ninety-five 
per cent of the colored population of the South 
was illiterate at the time of the Civil War.31

After the war ended, the provisional legisla­
tures in the Southern states began to show great 
interest in the establishment of systems of public 
school education; yet, with few exceptions, they 
showed no disposition to extend its benefits to 
Negroes.32 This reflected the hostility of many 
people in the South towards the principle of 
Negro education. The establishment of schools 
for Negroes was left largely to northern char­
itable societies, in cooperation with the Freed- 
men’s Bureau. However, the effectiveness of 
these schools was impaired by the opposition of 
a considerable portion of the local white popu­
lation—an opposition wdiich frequently expressed 
itself in violence, with Negro schools being 
burned and their teachers, white and colored 
alike, beaten and expelled from the community.33

In the North the situation was far different. 
Nowhere were there prohibitions against Negro 
education,34 although in five states Negroes were

31 Bond, The Education of the Negro in the American 
Social Order (1934), p. 21.

82 Id,., p. 41.
33 Id., pp. 28-32.
34 The only border state which had had such prohibitions 

was Missouri. By 1865, this prohibition was not only abol­
ished, but Negroes were admitted to public schools. Bar­
nard, supra, pp. 359-360. A ll the following references to



17

excluded from public schools.35 In some Northern 
states they were admitted to the same public 
schools as white children; in others, they were 
either provided with separate schools, or ad­
mitted to the white schools, depending principally 
upon the number of children involved; 36 in still 
others, they were provided only with separate 
schools.37 38 In individual communities in many of 
the states the practice varied from the state-wide 
pattern, either by legislative permission or com­
mon practice, without legal sanction.33

C. THE LEGISLATIVE HISTORY OF THE THIRTEENTH 
AMENDMENT AND IMPLEMENTING LEGISLATION 

1. The Thirteenth Amendment,
The legislative history of the Fourteenth Amend­

ment in Congress must begin with a brief account 
o f the Thirteenth Amendment. Both amendments 
had a conunon origin and purpose, and were con­
the educational status of the Negro are taken from Appendix, 
Legal Status o f the Colored Population, etc., pp. 301-400, 
o f the Barnard report.

35 Delaware, Maryland, Kentucky, Indiana and Illinois.
86 Pennsylvania and California are examples.
37 See p. 90, footnote 93, infra.
38 For example, the Ohio state statutes provided only for 

separate schools; in the greater part o f the state, however, 
with the exception o f Cincinnati, colored children were ad­
mitted to the same schools as white children. In Illinois, 
where there was no provision for Negro public education, the 
city of Chicago, after an unsuccessful experiment with sepa­
rate schools during 1864-1865, maintained under its own ordi­
nances a fully integrated system of public schools. On the 
other hand, New York City and some towns in New Jersey 
maintained separate schools for colored children. See Bar­
nard, supra, pp. 96, 104.



18

sidered in Congress as related components of an 
integral plan of reconstruction.

The Thirteenth Amendment originated in the 
38th Congress in the form of a joint resolution 
introduced by Senator Henderson in January 
1864. (Congressional Globe, 38th Cong., 1st Sess., 
p. 145.) The resolution proposed that the Consti­
tution he amended to provide that “ Slavery or 
involuntary servitude, except- as a punishment for 
crime, shall not exist in the United States. ’ ’ 39 The 
proposal was made only after Congressional and 
executive action had been taken which effectively 
emancipated the slaves in the Southern states.40 
In reporting the resolution, Senator Trumbull, 
chairman of the Senate Judiciary Committee, 
noted that fact. He stated that the amendment 
would not only end the institution of slavery but 
would remove from the Constitution the inconsist­
ency of the founding fathers, who, while proclaim­
ing the equality of all men, nevertheless denied all 
rights to an entire race (Globe, 38th Cong., 1st 
Sess., p. 1313). The resolution passed the Sen­

89 Globe, 38th Cong., 1st Sess., p. 1313. The Thirteenth 
Amendment, as adopted, provides that “Neither slavery nor 
involuntary servitude^ except as a punishment for crime 
whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their 
jurisdiction.”

40 The Confiscation Act of 1861,12 Stat. 319; the Captured 
and Abandoned Property Act o f 1863,12 Stat. 820; Procla­
mation (No. 16) of September 22,1862,12 Stat. 1267.



19

ate, but failed of passage in the House (Globe, 
38th Cong., 1st Sess., pp. 1490, 2995) ; and it be­
came one of the principal issues in the 1864 
national election.41

The overwhelming Republican victory that year 
led President Lincoln in December 1864 to recom­
mend to the lame-duck session of the 38th Con­
gress that the House reconsider its vote (Globe, 
38th Cong., 2d Sess., Appendix, p. 3). In Janu­
ary 1865 the resolution was passed by the House 
by slightly more than the required two-thirds vote 
(Globe, 38th Cong., 2d Sess., p. 531). It was sub­
mitted to the states for ratification in February 
1865, and by December of that year a sufficient 
number of states had ratified. (13 Stat. 567, 774.)

The Congressional debates on the Thirteenth 
Amendment indicate that its purpose was to make 
the Negro, so far as law could do so, an indis­
tinguishable element of the general population.42 
It was the belief of its proponents that by abolish­
ing the institution of slavery they were establish­
ing the constitutional principle of full equality 
before the law. (Globe, 38th Cong., 2d Sess., pp. 
154, 177.) To these men, freedom and equality 
were coextensive; the one necessarily implied the 
other. (Globe, 38th Cong., 1st Sess,, pp. 1482, 
2957; Globe, 38th Cong., 2d Sess., p. 154.) Simi­

a McPherson, Political History of the United States, 
1860-65 (1865), pp. 406, 419, 422.

42 See, for example, the remarks o f Rep. Orth (Globe, 
38th Cong., 2d Sess., p. 143).



20

larly, those who opposed the Amendment did not 
doubt that the freedom conferred upon the Negro 
slave included more than “ mere exemption from 
servitude.”  (Globe, 38th Cong., 1st Sess., p. 
2962.) To them, that freedom was a reversal of 
the “ natural and divine”  order under which the 
colored race was inferior and unequal. (Globe, 
38th Cong., 2d Sess., p. 150.) This argument 
proceeded on the basis of their understanding 
that the Amendment would merge the Negro into 
the general mass of people on a basis of full legal 
equality. Those who favored the Amendment did 
not deny that such was its purpose. (Globe, 38th 
Cong., 1st Sess., pp. 2957, 2960, 2989; Globe, 38th 
Cong., 2d Sess., pp. 154,202,237.)
£. Implementing legislation: The Freedmen's Bureau bills 

and the Civil Rights Act of 1866

In the period between the adjournment of the 
38th Congress in March 1865 and the convening of 
the 39th Congress in December of that year, the 
provisional governments in the Southern states, 
which had been set up by President Johnson under 
his “ restoration”  policy, enacted a series of laws 
discriminating against Negroes in various ways, 
the so-called Black Codes discussed supra, p. 
15. The first session of the 39th Congress, over 
the veto of President Johnson, enacted two bills 
to nullify the discriminations created by the 
Black Codes: (1) the Civil Rights Act of 1866, 14 
Stat. 27, and (2) the law which extended the life of 
the Freedmen’s Bureau and enlarged its powers,



21

14 Stat. 173. It also passed another bill dealing 
with the Freedmen’s Bureau which failed of en­
actment after it had been vetoed by President John- 
son. (S. 60, 39th Cong., 1st Sess.; Globe, p. 94S)43 44 
These three bills were expressly intended to give 
content to the freedom conferred upon the Negro 
by the Thirteenth Amendment by guaranteeing to 
him all of the civil rights to which free men were 
entitled.

These measures were related to the Fourteenth 
Amendment by more than mere coincidence of 
time “  and subject matter. As will appear infra, 
pp. 40-45, the latter was proposed after members 
of the Congress stated that the civil rights guar­
anteed by statute were vulnerable to future politi­
cal changes or might possibly be stricken down as 
unconstitutional. Because the rights intended to 
be secured to Negroes by these measures were the 
same as those subsequently embodied in the Four­

43 A ll references to the Globe in this section are to the Con­
gressional Globe, 39th Cong., 1st Session.

44 The Supplementary Freedmen’s Bureau bill (S. 60) was 
debated in Congress from January 11, 1866, through Feb­
ruary 20, 1866: the Civil Bights bill, from January 29,1866, 
through April 9,1866; and the second Supplementary Freed­
men’s Bureau bill (H. B. 613), from May 22, 1866, through 
July 2, 1866. Meanwhile, the two precursors to the Four­
teenth Amendment, the Stevens “ apportionment” amend­
ment and the Bingham “equal rights” amendment, infra, 
pp. 33-41, were debated from January 23, 1866, through 
March. 9, 1866, and February 26 through 28, 1866, respec­
tively. Debate on IT. J. Bes. 127, containing the Fourteenth 
Amendment as finally proposed, extended from May 8,1866, 
to June 13, 1866.

280315— 58------3



2 2

teenth Amendment, it is appropriate to include 
their legislative history as a relevant part of the 
background of the Fourteenth Amendment.

(a) Immediately following President Johnson’s 
message of December 5, 1865, stating that existing 
state law furnished adequate protection for civil 
rights, the 39th Congress established a Joint Re­
construction Committee to serve as the principal 
agency for developing the program of “ Congres­
sional reconstruction.”  (Globe, pp. 6, 30, 47.) 
Senator Wilson immediately brought up for con­
sideration a bill (S. 9 )45 to nullify the Black 
Codes. (Globe, p. 39.) He urged Congress to 
strike down these Codes without delay, so that the 
Negro freedman

can go where he pleases, work when and 
for whom he pleases; that he can sue and 
be sued; that he can lease and buy and sell 
and own property, real and personal; that he 
can go into the schools and educate himself 
and his children; that the rights and guar­
antees of the good old common law are his, 
and that he walks the earth, proud and erect 
in the conscious dignity of a free man * * *. 
(Globe, p. 111.)

The chief opposition to W ilson’s bill came from 
those Senators who considered all civil rights 
proposals as an unwarranted effort “ to confer 
on former slaves all the civil or political rights 
that white people have.”  (Globe, p. 113.) The

45 A ll bill numbers hereafter cited in this section refer to
bills in the 39th Cong., 1st Session.



23

bill was, however, withdrawn by Wilson because 
of the evident view of the majority that measures 
of such a nature required more careful formula­
tion. Senator Trumbull undertook this task. He 
subsequently introduced two bills which, he stated, 
would effectively protect all men in those basic 
rights without which they would not be free. 
(Globe, p. 43.)

(b) One of the Trumbull bills (S. 60) proposed 
to extend the life of the Freedmen’s Bureau and 
to enlarge its authority; the second (S. 61) was 
intended to protect all persons in the exercise of 
their civil rights and to furnish a means by which 
those rights might effectively be vindicated. 
(Globe, p. 129.)

The purpose of S. 60, as stated by Senator 
Trumbull, was to restrain by military measures 
any attempt to enforce the Black Codes. (Globe, 
pp. 319-323.) The bill passed the Senate by a 
wide majority. (Globe, p. 421.) The opposition 
centered their attack on the basic concept of 
equality underlying the bill, and on its military 
enforcement provisions. (E . g., Globe, pp. 318, 
319, 342.) The debate in the House emphasized 
much the same issues, with the additional matter 
of education for the freedrnen. (E. g., Globe, pp. 
513, 585.)

There was little difference in the majority and 
minority views concerning the bill’s scope. Its 
proponents expressed their understanding that the 
equality to be enforced did not mean “ that all



24

men shall be six feet high,” but rather that they 
were to have “ equal rights before the law,” so 
that it “ operates alike on both races”  and without 
“ discrimination against either in this respect that 
does not apply to both.”  (Globe, pp. 322, 343.) 
Nor did the opposition indicate any disagreement 
on that score. They objected, rather, to the gen­
eral philosophy of the bill. Representative Daw­
son of Pennsylvania observed that the bill con­
stituted only a part of a broad policy to enforce 
absolute equality for Negroes so that they

should be received on an equality in white 
families, should be admitted to the same 
tables at hotels, should be permitted to oc­
cupy the same seats in railroad cars and 
the same pews in churches; that they should 
be allowed to hold offices, to sit on juries, 
to vote, to be eligible to seats in the State 
and national Legislatures, and to be judges, 
or to make and expound laws for the gov­
ernment of white men. Their children are 
to attend the same schools with white chil­
dren, and to sit side by side with them. 
(Globe, p. 541.)

Several Congressmen objected to entrusting the 
Preedmen’s Bureau with the responsibility of 
educating the freedmen because it appeared that 
the Bureau had taken over certain white schools 
in the South for the use of Negro children. The 
charge was made that “ unless they mix up white 
children with black, the white children can have 
no chance in these schools for instruction.”



(Globe, App. pp. 71, 82.) There is no other evi­
dence that any particular thought was given to 
the question of racial segregation in the existing 
schools. The bill was passed by the House, but 
was vetoed by President Johnson in February 
1866. (Globe, pp. 688, 915.) The Senate sus­
tained his veto. (Globe, p. 943.)

(c) After the Senate passed S. 60, it turned 
immediately to consideration of the second of 
Senator Trumbull’s bills, S. 61, the so-called 
“ Civil Rights”  bill. (Globe, p. 421.) S. 61 pro­
vided (1) that there was to be no discrimination 
in “ civil rights or immunities”  among the in­
habitants of the United States on account of 
color, race, or previous servitude, and (2) that 
all persons, regardless of race or color, were to 
have the “ same”  rights to make and enforce con­
tracts, to sue and be sued, to inherit and own 
property, and to have the full and equal benefit 
of all laws for the security of person and prop­
erty. (Globe, p. 474.) Violation of any of these 
rights “ under color of law”  was to carry both 
civil and criminal penalties. (Globe, p. 475.)

The purpose of the bill was stated to be the 
nullification of all state laws which, on grounds 
of color or race, deprived “ any citizen of civil 
rights which are secured to other citizens.”  
(Globe, p. 474.) The Senate proponents of the 
bill explained that the freedom conferred upon 
Negroes by the Thirteenth Amendment was of 
little value, unless they were given “ some means



26

of availing themselves of their benefits.”  (Globe, 
p. 474.) So long as there were state laws dis­
criminating against the colored people, they re­
mained in part slave. Any statute

which is not equal to all, and which de­
prives any citizen of civil rights which are 
secured to other citizens, is an unjust 
encroachment upon his liberty; and is, in 
fact, a badge of servitude which, by the 
Constitution, is prohibited. (Ibid.)

To the objection that the bill’s purpose was “ rev­
olutionary” , its supporters answered that the 
country was “ in the midst of revolution.” (Globe, 
p. 570.)

The opposition, recognizing that the bill was 
intended to accomplish “ the abolition of all laws 
in the States which create distinctions between 
black men and white ones”  (Globe, p. 603), ob­
jected to this attempt to “ place all men upon an 
equality before the law.”  (Globe, p. 601.) They 
claimed that the Thirteenth Amendment did not 
confer the power on Congress to erase distinc­
tions between Negroes and whites created by state 
law. (Globe, p. 476.) For them, the Amendment 
had merely abolished the “ status or condition of 
slavery” , and there was no justification for at­
tempting to use it “ to confer civil rights which 
are wholly distinct and unconnected”  with such a 
status. Senator Cowan of Pennsylvania, oppos­
ing the bill, referred to the system of racially- 
segregated schools provided for by Pennsylvania



27

law as an example of the kind of legal distinction 
which would be eradicated by the bill:

In Pennsylvania, for the greater conven­
ience of the people, and for the greater 
convenience, I may say, of both classes of 
the people, in certain districts the Legisla­
ture has provided schools for colored child­
ren, has discriminated as between the two 
classes of children. We put the African 
children in this school-house and the white 
children over in that school-house, and edu­
cate them there as we best can. Is this 
amendment to the Constitution of the 
United States abolishing slavery to break 
up that system which Pennsylvania has 
adopted for the education of her white and 
colored children? Are the school directors 
who carry out that law and who make this 
distinction between these classes of chil­
dren to be punished for a violation of this 
statute of the United States? To me it is 
monstrous. (Globe, p. 500.)

No member of the Senate rose to differ with Sen­
ator Cowan’s view of this objective of the bill. 
The attacks on the bill failed, however, and it was 
passed by the Senate in February 1866. (Globe,
p. 606.)

In the House the bill was reported favorably 
by the Judiciary Committee, of which Congress­
man Wilson of Iowa was chairman. (Globe, p. 
1115.) The debate in the House followed the 
same general pattern as in the Senate.



28

Mr. Wilson took a more limited view of the 
objectives and scope of the bill than had his col­
leagues in the Senate. To him, the general lan­
guage of the bill did not mean that “ all citizens 
shall sit on the juries, or that their children shall 
attend the same schools.”  These, to him, were not 
such “ civil rights or immunities”  as were in­
tended to be protected by the bill.46 (Globe, p. 
1117.)

Those in the House who opposed the bill on its 
merits vigorously disagreed with W ilson’s view 
that the bill had a limited application, particu­
larly with respect to state laws concerning racial 
segregation in the schools. (Globe, pp. 1120,1121, 
1270). Congressman Kerr of Indiana argued that 
the bill would invalidate the school laws of his 
state:

Again, the constitution of Indiana has 
dedicated a munificent fund to the support 
of common schools for the education of the 
children of the State. But negro and 
mulatto children are by law excluded from

46 Mr. Wilson later pointed out that this view depended 
not on any general definition o f “ civil rights or immunities” 
but upon the form of the bill itself, which, under general 
rules of construction, would in his opinion have limited the 
general declaration to the specific and limited rights actually 
enumerated. (Globe, pp. 1291, 1294.) He thought that the 
bill could only be construed as relating to matters within the 
control of Congress, and he had doubt that Congress could 
constitutionally provide such general protection o f civil 
rights. (Globe, p. 1294.)



29

those schools. Negroes and mulattoes, are 
exempt by law from school tax. They are 
denied a civil right, on account of race and 
color, and are granted an immunity, (from 
school taxation,) but are taxed for all other 
purposes. Now, a negro or mulatto takes 
his child to the common schoolhouse and 
demands of the teacher that it be admitted 
to the school and taught as the white chil­
dren are, which is refused. The teacher 
then becomes a wrong-doer and is liable to 
the same punishments, to be administered 
in the same way; because all the persons 
referred to would be acting under color of 
some law, statute, ordinance, regulation, 
or custom. (Globe, p. 1271.)

Congressman Rogers of New Jersey, of the
minority, argued similarly with reference to the
Pennsylvania schools:

In the State of Pennsylvania there is a dis­
crimination made between the schools for 
white children and the schools for black. 
The laws there provide that certain schools 
shall be set apart for black persons, and 
certain schools shall be set apart for white 
persons. Now, if  this Congress has a right, 
by such a bill as this, to enter the sovereign 
domain of a State and interfere with these 
statutes and the local regulations of a 
State, then, by parity of reasoning, it has 
a right to enter the domain of that State, 
and inflict upon the people there, without 
their consent, the right of the negro to en­
joy the elective franchise to the same ex­



30

tent that it is accorded to the white men 
in that State, * * *. (Globe, p. 1121.)

To Rogers, there was no authority under the 
Thirteenth Amendment for Congress to interfere 
in such ‘ ‘ domestic”  matters; but he plainly under­
stood that the bill under consideration would pro­
hibit segregated schools in the states.

There were some members of the majority who, 
although supporting the merits of the bill, agreed 
with the minority that there was doubt that the 
Thirteenth Amendment empowered Congress to 
enact such legislation. (Globe, pp. 1290, 1293, 
1266.) Led by Congressman Bingham of Ohio, 
later a principal draftsman of the Fourteenth 
Amendment, they clearly expressed their under­
standing that the general language of the bill 
would “ strike down by congressional enactment 
every State constitution which makes a discrimi­
nation on account of race or color in any of the 
civil rights of the citizen.”  (Globe, p. 1291.) 
Congressman Delano of Ohio, a member of this 
group, pointed out that the bill would clearly 
apply to state school laws; he cited his own state 
as an example:

we once had in the State of Ohio a law 
excluding the black population from any 
participation in the public schools or in the 
funds raised for the support of those 
schools. That law did not, of course, place 
the black population upon an equal footing 
with the white, and would, therefore, under



31

the terms of this bill be void, and those at­
tempting to execute it would be subjected to 
punishment by fine or imprisonment. 
(Globe, App. 158.)

Mr. Bingham stated that all laws making distinc­
tions on the basis of color should be eliminated, 
for the law “ should be just” ; but he saw the 
proper remedy for those abuses, “ not by an arbi­
trary assumption of power, but by amending the 
Constitution of the United States, expressly pro­
hibiting the States from any such abuse of power 
in the future.”  (Globe, p. 1291.) He agreed 
that without such amendment the “ protection in 
time of peace within the States of all the rights 
of person and citizen was of the powers re­
served to the States.”  (Globe, p. 1293.)

The bill was recommitted against Wilson’s 
wishes, largely because of the defection of Bing­
ham and his followers. (Globe, p. 1296.) It was 
amended in committee to strike out the general 
language guaranteeing “ civil rights or immuni­
ties.”  (Globe, p. 1366.) As Wilson said, that 
language had been taken by some as warranting a 
“  latitudinarian construction not intended.” 
{Ibid.) In this form the bill passed the House, 
and was concurred in by the Senate. (Globe, 
pp. 1367, 1416.)

The President vetoed the measure on March 
27, 1866. (Globe, p. 1679.) The Senate, after 
two days’ discussion, passed the bill over the veto; 
the House held no debate, and the veto was imme­
diately overridden. (Globe, pp. 1809, 1861.)



32

In sum, the Thirteenth Amendment had been 
proposed as a means of attaining the equality of 
all men before the law, not as conferring mere 
exemption from servitude. To its proponents, 
and to most of its opponents, it would establish 
the principle that all men should be treated 
equally. The Civil Rights and the Freedmen’s 
Bureau bills were considered necessary to enforce 
the equality of freedom guaranteed by that 
Amendment by forbidding differences in legal 
treatment on account of race or color. These 
bills were aimed at striking down state laws which 
were viewed as restricting the freedom of Negroes 
by creating or continuing legal distinctions based 
on race or color. The debates on these bills show 
that some legislators, on both the majority and 
minority sides, expressed the view that this prin­
ciple of equality under law would, if enforced, 
destroy racial segregation in state schools.

D. THE FOURTEENTH AMENDMENT IN CONGRESS

During the same period that the Civil Rights 
Act and the first Freedmen’s Bureau extension 
bill were occupying the attention of the 39th 
Congress, the Joint Committee on Reconstruction 
was engaged in the study of plans to “ recon­
struct”  the Union on principles that would pre­
vent a recurrence of the recent war.47 In the 
course of that study the Committee originated two

47 Journal of the Joint Committee on Reconstruction, Sen­
ate Doc. 711, 63rd Cong., 3rd Sess. (hereinafter “ Committee 
Journal” ).



33

separate proposals for constitutional amendments 
which it reported to the floor of Congress. These 
proposals were: (1) a constitutional amendment 
reducing the congressional representation of any 
state which denied citizens suffrage on the basis 
of race or color (the Stevens “ apportionment”  
amendment)48; and (2) a constitutional amend­
ment empowering Congress to enact legislation to 
guarantee equal rights to all persons (the Bing­
ham “ equal rights”  amendment).49 Both pro­
posals failed. However, after some modification, 
and with the addition of other proposals, they 
were included in the “ plan of reconstruction”  re­
ported by the Joint Committee in April 1866. 
That plan included the Fourteenth Amendment. 
(Globe, pp. 2265, 2286.) The discussions of 
these preliminary proposals in the Congress il­
lumine the scope and purpose of that Amend­
ment and constitute an integral part of its legis­
lative history.

(1) The Stevens “ apportionment”  amendment. 
The first proposal to be reported was the appor­
tionment amendment. A brief report to the House 
was delivered by Congressman Thaddeus Stevens 
on January 22, 1866. (Globe, p. 351.) The 
amendment had a direct political purpose. It 
proposed to reduce the congressional repre­
sentation of a state which excluded any group of 
citizens from the elective franchise on account of 
race or color.

48 Committee Journal, p. 13; Globe, p. 351.
49 Committee Journal, p. 17; Globe, pp. 813, 1033.



34

The opponents of reconstruction united to con­
demn this proposal (e. g., Globe, pp. 353, 381, 
387). However, the usual supporters of recon­
struction were divided. To many of the latter, a 
constitutional provision for apportionment where 
suffrage was denied on the basis of color might 
imply that the Constitution permitted legal dis­
tinctions to be made on such a basis. (Globe, pp. 
405, 408.)

Congressman Bingham argued that while the 
measure was necessary, it was not sufficient stand­
ing alone. (Globe, p. 429.) It should be ac­
companied, he said, by

another general amendment to the Con­
stitution which looks to the grant of express 
power to the Congress of the United States 
to enforce in behalf of every citizen of 
every State and of every Territory in the 
Union the rights which were guaranteed to 
him from the beginning * * *.

Bingham urged that the American people should 
adopt both of these proposals in order

to declare their purpose to stand by the 
foundation principle of their own institu­
tions, the absolute equality of all citizens 
of the United States politically and civilly 
before their own laws. (Globe, p. 431.)

The split among the majority led to recommittal 
of the apportionment proposal. (Globe, p. 508.) 
However, the following day it was again reported 
with an amendment concerning apportionment of



35

direct taxes, and in this form it passed the House 
with little discussion, (Globe, p. 538.)

Senator Sumner opened the Senate debate on 
February 6 with an attack on the proposal. 
(Globe, p. 673). He said that the freedmen 
must be fully protected, not by indirection, 
but by directly “  maintaining him in the equal 
rights of citizenship,”  including suffrage; and this 
was impossible “ so long as you deny him the shield 
of impartial laws ”  (Globe, p. 675.) Sumner 
proposed, instead, a joint resolution to declare, by 
statute and not by constitutional amendment, the 
abolition of all distinctions based on color, includ­
ing those relating to the franchise. ( Globe, p. 684.) 
This was proposed as an exercise by Congress of 
the authority which he thought it had under 
the Thirteenth Amendment, Senator Fessenden, 
Chairman of the Joint Committee on Reconstruc­
tion, opposed Sumner and argued the necessity of 
the apportionment amendment, although admitting 
his own preference for

a distinct proposition that all provisions in 
the constitution or laws of any State making 
any distinction in civil or political rights, or 
privileges, or immunities whatever, should 
be held unconstitutional, inoperative, and 
void, or words to that effect. (Globe, p. 
704.)

But he thought that a direct suffrage amendment 
would probably be too extreme to secure ratifica­
tion by the states. Senator Yates of Illinois 
stated that the equality of freedom guaranteed by



36

the Thirteenth Amendment included both civil 
and political rights. (Globe, App., pp. 100-101.) 
By that Amendment, he said, the Negro “ became 
a part of the people”  and as such “ entitled to 
the same rights and privileges with all the other 
citizens of the United States.”

Although the proposal received a majority vote 
in the Senate, it lacked the necessary two-thirds. 
(Globe, p. 1289.)

(2) The Bingham “ equal rights”  amendment. 
The second precursor of the Fourteenth Amend­
ment is more directly related to section 1 of that 
Amendment. It had its origin in two proposals 
of a similar nature which were placed before the 
Joint Committee on Reconstruction at its third 
meeting in January 1866.50

The first of these proposals, by Congressman 
Bingham, provided:

The Congress shall have power to make all 
laws necessary and proper to secure to all 
persons in every State within this Union 
equal protection in their rights of life, 
liberty, and property.51

The second, by Congressman Stevens, chairman 
of the House group of the Committee, was a 
simpler declaration that

All laws, State or national, shall operate 
impartially and equally on all persons with­
out regard to race or color.52

50 Committee Journal, p. 9.
61 Ibid.
52 Ibid.



37

Both were referred to the subcommittee on the 
apportionment of representatives in Congress, 
which included Bingham and Stevens.

The following week the subcommittee approved 
a new draft combining the Bingham and Stevens 
proposals:

Congress shall have power to make all laws 
necessary and proper to secure to all citi­
zens of the United States, in every State, 
the same political rights and privileges; 
and to all persons in every State equal 
protection in the enjoyment of life, liberty 
and property.53

The Committee kept it under consideration 
until after the apportionment amendment had 
passed the House. The matter was then referred 
to a special subcommittee, consisting of Bingham, 
Boutwell of Massachusetts, and Rogers of New 
Jersey. The subcommittee reported back a draft 
very similar to Bingham’s original proposal:

Congress shall have power to make all laws 
which shall be necessary and proper to 
secure all persons in every State full pro­
tection in the enjoyment of life, liberty, and 
property; and to all citizens of the United 
States, in any State, the same immunities 
and also equal political rights and priv­
ileges.54

The Committee by a tie vote failed to ap­
prove this draft, and Bingham proposed a modi­
fication which the Committee adopted:

53 Committee Journal, p. 12.
64 Committee Journal, p. 14.

280315— 53-------4



38

The Congress shall have power to make all 
laws necessary and proper to secure to the 
citizens of each State all privileges and im­
munities of citizens in the several States; 
and to all persons in the several States 
equal protection in the rights of life, liberty 
and property.55

Bingham reported the proposed amendment to the 
House on February 26. (Globe, p. 813.)

The proposal was debated for three days and 
was then postponed. In his report, Bingham 
stated that the amendment “ stands in the very 
words of the Constitution” ; it had theretofore 
been “ the want of the Republic that there was not 
an express grant of power in the Constitution to 
enable the whole people of every State * * * 
to enforce obedience to these requirements of 
the Constitution.”  (Globe, pp. 1033, 1034.)

Rogers of New Jersey, a member of the Joint 
Committee, expressed the view of the minority 
that the “protection, security, advancement, and 
improvement, physically and intellectually, of all 
classes.”  should be left to the states:

Negroes should have the channels of educa­
tion opened to them by the States, and by 
the States they should be protected in life, 
liberty, and property. * * * (Globe, App., 
p. 134.)

65 Committee Journal, p. 17. It may be observed that each 
o f the proposals, except that of Stevens, provided for ex­
clusive Congressional enforcement.



39

They should be permitted by the states to do every­
thing white men could do, except to vote and 
hold office. However, according to Rogers, the 
amendment would take from the states the power 
to regulate such personal rights as education:

In the State of Pennsylvania there are 
laws which make a distinction with regard 
to the schooling of white children and the 
schooling of black children. It is provided 
that certain schools shall be designated and 
set apart for white children, and certain 
other schools designated and set apart for 
black children. Under this amendment, 
Congress would have power to compel the 
State to provide for white children and 
black children to attend the same school, 
upon the principle that all the people in the 
several States shall have equal protection 
hi all the rights of life, liberty, and prop­
erty, and all the privileges and immunities 
of citizens in the several States. (Globe, 
App., p. 134.)

Bingham took the floor again for his proposal, 
stating:

that no man, no matter what his color, no 
matter beneath what sky he may have been 
born, no matter in what disastrous conflict 
or by what tyrannical hand his liberty may 
have been cloven down, no matter how poor, 
no matter how friendless, no matter how 
ignorant, shall be deprived of life or liberty 
or property without due process of law— 
law in its highest sense, that law which is



40

the perfection of human reason, and which 
is impartial, equal, exact justice * * *. 
(Globe, p. 1094.)

Congressman Hotchkiss of New York, however, 
said that the provision which authorized Congress 
to legislate guarantees of equal protection would 
mean that the degree of protection given could 
vary as the Congress changed. (Globe, p. 1095.) 
Equal protection should instead be made a

constitutional right that cannot be wrested 
from any class of citizens, or from the citi­
zens of any State by mere legislation. But 
this amendment proposes to leave it to the 
caprice of Congress * * *. [T]he very 
privileges for which the gentleman is con­
tending shall be secured to the citizens; but 
I  want them secured by a constitutional 
amendment that legislation cannot over­
ride.

Following this three-day debate, further consid­
eration of the proposal was postponed. (Globe, 
p. 1095.) This postponement was apparently at­
tributable to the reluctance of the moderate Repub­
lican group to give Congress the power to deter­
mine the measure of equal protection. The objec­
tion that the proposal placed upon Congress the 
direct responsibility not merely of enforcement but 
of declaring what rights were to be protected 
was also voiced by members of the majority 
in the debates on the Civil Rights bill: what a Re­
publican Congress could give, they feared, a Demo­
cratic Congress could take away. The guarantees



41

of legal equality, to be permanent, therefore had 
to be made an explicit part of the Constitution.

The majority were determined that the Constitu­
tion should not permit any distinctions of law based 
on race or color, and that it should include express 
guarantees of equal protection which could not be 
repealed by any future Congress. The debates on 
both Stevens ’ ‘ ‘ apportionment ’ ’ proposal and Bing­
ham’s “ equal rights”  proposal echo the same de­
termination to abolish legal differences based on 
color or race which had been manifested through­
out the debates on the Thirteenth Amendment and 
its implementing legislation. In the debates on the 
“ equal rights”  proposal, the minority repeated 
their previous argument that to protect equally the 
civil rights of all persons would destroy racial segre­
gation in state schools. The majority, as before, 
did not deny that charge but instead continued to 
discuss equal protection in general terms, without 
any attempt to enumerate its specific applications.

(3) II. J. Res. 127: the Fourteenth Amend­
ment. After the failure of these two proposals, 
Stevens laid before the Joint Committee in April 
1866 a “ plan of reconstruction,”  the core of 
which was a proposed amendment to the Consti­
tution, containing five sections. Section 1 read as 
follows:

No discrimination shall be made by any 
State, nor by the United States, as to the 
civil rights of persons because of race, 
color, or previous condition of servitude.56

56 Committee Journal, pp. 28,29.



Bingham immediately moved to amend this by 
adding:

Nor shall any State deny to any person 
within its jurisdiction the equal protection 
of the laws, nor take private property for 
public use without just compensation.

The committee rejected Bingham’s amendment 
and retained the original form.57 Subsequently, 
Bingham secured committee agreement to a new 
section in these words:

No State shall make or enforce any law 
which shall abridge the privileges and im­
munities of citizens of the United States; 
nor shall any State deprive any person of 
life, liberty, or property without due proc­
ess of law, nor deny to any person within 
its jurisdiction the equal protection of the 
laws.58

This section, which contains the wording of the 
Fourteenth Amendment as eventually adopted, 
was substituted for the original section 1, and in 
that form was reported to both Houses on April 
30. (Globe, pp. 2265, 2286.) In the House, as 
H. J. Res. 127, the proposed amendment was 
made a special order of business. (Globe, p. 
2286.)

(a) The House debate. There were but three 
days of discussion in the House under a rule limit­
ing debate, and much of that time was devoted to 
Reconstruction generalities and to portions of the

57 IUd.
68 Committee Journal, p. 39.



43

proposal other than section 1. (Globe, p. 2433.) 
From the opening statement by Stevens on May 8, 
1866, until he closed May 10, 1866, with the decla­
ration that the Southern states should not return 
except “ as supplicants in sackcloth and ashes,” 
nearly all the radical Republicans in the House 
echoed his disappointment that suffrage for the 
Negro was not directly included in the proposed 
amendment. (Globe, pp. 2459, 2544.) However, 
Stevens remarked that what was proposed “ is all 
that can be obtained in the present state of public 
opinion.” (Globe, p. 2459.)

The discussion of Section 1 commenced with 
some brief remarks by Stevens on behalf of the 
Joint Committee. He affirmed the justice of its 
provisions:

They are all asserted, in some form or 
other, in our Declaration or organic law. 
But the Constitution limits only the action 
of Congress, and is not a limitation on the 
States. This amendment supplies the de­
fect, and allows Congress to correct the 
unjust legislation of the States, so far that 
the law which operates upon one man shall 
operate equally upon all. Whatever law 
punishes a white man for a crime shall 
punish the black man precisely in the same 
way and to the same degree. Whatever 
law protects the white man shall afford 
“ equal” protection to the black man. 
Whatever means of redress is afforded to 
one shall be afforded to all. Whatever law 
allows the white man to testify in court



44

shall allow the man of color to do the same. 
(Globe, p. 2459.)

Stevens referred to discriminatory state laws 
which disqualified Negroes from testifying in 
courts, and provided different methods of trial 
or different punishments for them. He did not 
wish, however, to “ enumerate these partial and 
oppressive laws” at length. But, he said,

Unless the Constitution should restrain 
them those States will all, I  fear, keep up 
this discrimination, and crush to death the 
hated freedmen. (Globe, p. 2459.)

He anticipated that it would be contended that 
the “ civil rights bill secures the same things.”  
That was only “ partly true.” Moreover,

a law is repealable by a majority. * * * 
This amendment once adopted cannot be 
annulled without two thirds of Congress. 
That they will hardly get. {Ibid.)

The arguments which Stevens made for this 
section of the Amendment do not indicate that, 
apart from the suffrage provision, he considered 
there was any difference in substance between the 
new proposal and his own earlier one {supra, 
p. 36) that “ All laws, State or national, shall 
operate impartially and equally on all persons 
without regard to race or color.”

Congressman Finch of Ohio was opposed to the 
amendment, but all he said about section 1 was 
that—

if it is necessary to adopt it, in order to 
confer upon Congress power over the mat­



45

ters contained in it, then the civil rights 
hill * * * is clearly unconstitutional. 
(Globe, p. 2461.)

Congressman Garfield of Ohio, later President, 
rose to support the proposal:

The civil rights bill is now a part of the law 
of the land. But every gentleman knows it 
will cease to be a part of the law whenever 
the sad moment arises when that gentle­
man’s party comes into power. It is pre- 
cisely for that reason that we propose to 
lift that great and good law above the reach 
of political strife, beyond the reach of the 
plots and machinations of any party, and 
fix it in the serene sky, in the eternal firma­
ment of the Constitution, where no storm 
of passion can shake it and no cloud can 
obscure it. (Globe, p. 2462.)

The first section, he said, would hold “ over every 
American citizen, without regard to color, the 
protecting shield of law.”

Congressman Raymond of New York, publisher 
of the New York Times and a conservative Re­
publican who had voted against the Civil Rights 
bill, undertook to explore the “ somewhat curious 
history”  of the “ principle”  of the first section, 
“ which secures an equality of rights among all 
the citizens of the United States” :

It was first embodied in a proposition in­
troduced by the distinguished gentleman 
from Ohio, [Mr. Bingham,] in the form of 
an amendment to the Constitution, giving 
to Congress power to secure an absolute



46

equality of civil rights in every State of 
the Union. It was discussed somewhat in 
that form, but, encountering considerable 
opposition from both sides of the House, it 
was finally postponed, and is still pending. 
Next it came before us in the form of a bill, 
by which Congress proposed to exercise 
precisely the powers which that amendment 
was intended to confer and to provide for 
enforcing against State tribunals the 
prohibitions against unequal legislation. 
(Globe, p. 2502.)

Even though Raymond had voted twice against 
the civil rights bill, the principle of whieh was em­
bodied in the proposed amendment, he stated that 
he was supporting the latter because he was 
“ heartily in favor of the main object which that 
bill was intended to secure.”  All that he wanted 
was to have this accomplished by constitutional 
means. (Ibid.)

Congressmen Randall of Pennsylvania and 
Rogers of New Jersey were among the few op­
ponents of the amendment who registered specific 
objections to section 1. (Globe, pp. 2530, 2538.) 
Although most of the others objected to recon­
struction generally, or to other sections of the 
proposal, Randall objected because:

The first section proposes to make an equal­
ity in every respect between the two races, 
notwithstanding the policy of discrimina­
tion which has heretofore been exclusively 
exercised by the States, which in my judg­
ment should remain and continue. They



47

relate to matters appertaining to State citi­
zenship, and there is no occasion whatever 
for the Federal power to he exercised be­
tween the two races at variance with the 
wishes of the people of the States. (Globe, 
p. 2530.)

Rogers insisted that “ the first section of this pro­
gramme of disunion”  was “ most dangerous to lib­
erty.” (Globe, p. 2538.) It was, he said,

no more nor less than an attempt to em­
body in the Constitution of the United 
States that outrageous and miserable civil 
rights bill which * * * was vetoed by
the President of the United States upon the 
ground that it was a direct attempt to con­
solidate the power of the States and to take 
away from them the elementary principles 
which lie at their foundation. (Globe, p. 
2538.)

The speeches of Congressmen Bingham and 
Stevens closed the debate. To Bingham, the need 
for the first section was “ one of the lessons that 
have been taught * * * by the history of the 
past four years of terrific conflict.” (Globe, p. 
2542.) It was to supply the absence in the Con­
stitution of a

power in the people, the whole people of the 
United States, * * * to protect by national 
law the privileges and immunities of all the 
citizens of the Republic and the inborn 
rights of every person within its jurisdic­
tion whenever the same shall be abridged 
or denied by the unconstitutional acts of 
any State.



This amendment would not take rights properly 
reserved to the states, for

No State ever had the right, under the 
forms of law or otherwise, to deny to any 
freeman the equal protection of the laws 

. or to abridge the privileges or immunities 
of any citizen of the Republic, although 
many of them have assumed and exercised 
the power, and that without remedy. 
(Globe, p. 2542.)

Section 1 would carry out the great objectives of 
the Constitution in protecting persons “ by na­
tional law from unconstitutional State enact­
ments.”  (Globe, p. 2543.)

After Stevens’ speech, which candidly outlined 
the partisan political aims of the entire amend­
ment, a vote was taken, and on May 10, 1866, it 
passed by more than the necessary two-thirds. 
(Globe, p. 2545.)

(b) The Senate debate. In the Senate, the 
amendment received more extended consideration. 
It was first brought up May 23, nearly two weeks 
after it passed the House. (Globe, p. 2763.) 
Senator Howard of Michigan made the report 
for the Joint Committee in place of the chair­
man, Senator Fessenden, who was ill.

Howard explained section 1 in great detail. He 
said:

This abolishes all class legislation in the 
States and does away with the injustice of 
subjecting one caste of persons to a code 
not applicable to another. * * * It estab-

48



49

I ishes equality before the law, and it gives 
to the humblest, the poorest, the most de­
spised of the race the same rights and the 
same protection before the law as it gives to 
the most powerful, the most wealthy, or the 
most haughty. That, sir, is republican gov­
ernment, as I  understand it, and the only 
one which can claim the praise of a just 
Government. Without this principle of 
equal justice to all men and equal protec­
tion under the shield of the law, there is 
no republican government and none that 
is really worth maintaining. (Globe, p. 
2766.)

The fifth section of the proposal, he stated, would 
enable the Congress,

in case the States shall enact laws in con­
flict with the principles of the amendment, 
to correct that legislation by a formal con­
gressional enactment. (Globe, p. 2768.)

Senator Stewart of Nevada spoke generally on 
the amendment as a plan of reconstruction. 
(Globe, p. 2798.) He discussed the purposes of 
section 1 in terms of the conflict between the 
Congress and the President. Mere restoration of 
the Southern states on their pre-war footing 
would, he said, permit them to continue “ to ap­
ply the theories of slavery to a condition of 
freedom” :

They were educated to believe that a negro 
was a slave, possessing no rights that a 
white man was bound to respect, and they 
believed it still, and they are astonished



50

at the inconsistencies of the world and its 
tendency to recognize the rights of man. 
(Globe, p. 2799.)

However, he did not believe the amendment suf­
ficed in its present form, for to him Negro suf­
frage was the only definite answer to “ slavery 
and inequality of human rights.”  (I b id . )

Up to this point, on May 24, the debate had 
produced a number of proposed revisions, for the 
most part concerned with other sections of the 
amendment. (Globe, pp. 2768, 2770, 2804.) With 
Stewart’s speech, it was plain that the majority 
party was not united on all the aspects of the 
amendment. Further consideration was post­
poned for five days, until Tuesday, May 29. Fri­
day, Monday, and Tuesday morning were devoted 
to a caucus of the Republican members of the 
Senate.59 What was discussed in the caucus, or 
who proposed the changes agreed to by the caucus, 
cannot be determined; it is clear, however, that 
there was great unity thereafter. In fact, oppo­
nents found it “ hard work to speak”  when they 
knew in “ advance that no argument, however just 
and forcible, and no appeal, however patriotic, 
can influence a single vote.”  (Globe, p. 2938.)

Senator Howard, as floor leader, took up the 
amendment Tuesday, and offered the changes which 
had been agreed to in caucus. (Globe, p. 2868.)

59 James, The Framing of the Fourteenth Amendment 
(1939), pp. 171-172 (an unpublished thesis in the library of 
the University of Illinois).



51

The only section 1 change was the addition of a 
declaration of citizenship as its first sentence:

All persons born in the United States and 
subject to the jurisdiction thereof are citi­
zens of the United States and of the States 
wherein they reside. (Globe, p. 2869.)

The purpose of this change was to settle the “ great 
question of citizenship”  and to remove “ all doubt 
as to what persons are or are not citizens of the 
United States.”  (Globe, p. 2890.)

All of the caucus changes were adopted. (Globe, 
pp. 2897, 2921.) The renewal of the debates 
showed marked unity not only in the majority party 
but also in the opposition. Most of the Senators 
in that group undertook active opposition— Hend­
ricks of Indiana, Davis of Kentucky, McDougall 
of California, Reverdy Johnson of Maryland, 
Democrats; and Cowan of Pennsylvania and Doo­
little of Wisconsin, dissident Republicans.

The pattern of opposition was set by Hendricks. 
(Globe, p. 2938.) To him, the amendment was a 
matter of partisan politics, a mere “ party pro­
gramme.”  The whole proposal would centralize 
“ absolute and despotic power”  in the Federal gov­
ernment. (Globe, p. 2940.) Senator Davis like­
wise accused the majority of a “ bold and desperate 
political game. ’ ’ (Globe, App., p. 238.) As to the
first section, he said, its

real and only object * * * is to make 
negroes citizens, to prop the civil rights bill,



52

and give them a more plausible, if not a valid, 
claim to its provisions, and to press them 
forward to a full community of civil and po­
litical rights with the white race, for which 
its authors are struggling and mean to con­
tinue to struggle. (Globe, App., p. 240.)

None of the opposition Senators devoted any dis­
cussion to specific illustrations of “ equality” ; they, 
along with the majority, were more concerned with 
its general and political implications.

After the caucus, only four of the proponents 
of the amendment found it necessary to make 
major speeches, Poland of Vermont, Howe of 
Wisconsin, Henderson of Missouri, and Yates of 
Illinois. (Globe, pp. 2961, 3031, 3037, App., p. 
217.) Senator Poland was first, and he argued 
the necessity and justice of reconstruction gener­
ally. (Globe, p. 2961.) As to section 1, he 
declared that its provisions were largely a restate­
ment of those in the original Constitution. 
Nevertheless,

we know that State laws exist, and some of 
them of very recent enactment, in direct 
violation of these principles. Congress has 
already shown its desire and intention to 
uproot and destroy all such partial State 
legislation in the passage of what is called 
the civil rights bill. The power of Con­
gress to do this has been doubted and de­
nied by persons entitled to high considera­
tion. It certainly seems desirable that no 
doubt should be left existing as to the



53

power of Congress to enforce principles 
lying at the very foundation of all republi­
can government if they be denied or vio­
lated by the States * * *. (Globe, p. 
2961.)

Senator Howe, arguing the necessity of radical 
reconstruction policies, directed attention to sec­
tion 1. (Globe, App., p. 217.) His is an impor­
tant speech, because it went beyond generalities 
and dealt expressly with the amendment’s ap­
plication to public schools. Howe attacked Sen­
ator Hendricks’ argument that state rights were 
invaded by the amendment, for no state had a 
right to have an “ appetite so diseased as seeks to 
abridge these privileges and these immunities, 
which seeks to deny to all classes of its citizens 
the protection of equal laws.”  (Globe, App., p. 
219.) But for Federal intervention, the Southern 
states would have continued to deny “ to a large 
portion of their respective populations the 
plainest and most necessary rights of citizen­
ship. ”  As a result of such intervention, he ac­
knowledged that most of those states had granted 
some basic rights, such as contract, ownership, 
suit, and the like; but

these are not the only rights that can be 
denied; these are not the only particulars 
in which unequal laws can be imposed. 
(Globe, App., p. 219.)

The single instance of continuing inequality which 
Senator Howe cited to illustrate the need for sec­
tion 1 was “ a statute enacted by the Legislature

280315— 33— 5



54

of Florida for the education of her colored 
people.”  He analyzed for the Senate the details 
of the inequality of that statute: First, there was 
unequal taxation, for

They make provision for the education of 
their white children also, and everybody 
who has any property there is taxed for the 
education of the white children. Black and 
white are taxed alike for that purpose; but 
for the education of colored children a fund 
is raised only from colored men. (Globe, 
App., p. 219.)

Moreover under the statute there was an insuffi­
cient sum provided for Negro education, only 
about twelve thousand dollars, of which all but 
$2,200 was to pay the superintendent of colored 
schools and the assistant superintendents. 
Finally, the Negro schools in Florida, he said, 
could not be satisfactory, since their administra­
tion would be subject to the uncontrolled discre­
tion of the superintendents:

Into that school, however, it is worthy of 
remark that no child can go without per­
mission of the superintendent or his assist­
ant, * * * and the teacher who has paid 
five dollars for the permission to teach can­
not hold that permission a day longer than 
the superintendent or assistant superin­
tendent see fit to allow * * *. (Globe, 
App., p. 219.)

Since legislation of this degree of inequality, 
touching “ one of the great interests not only of



55

this colored population but of the State itself,”  
had been already enacted, Senator Howe asked if 
there could possibly be hesitation in amending the 
Constitution to place a “ positive inhibition upon 
exercising this power of local government to sanc­
tion such a crime * * His speech thus 
clearly reflects an understanding that school leg­
islation which discriminated against Negroes 
would be invalidated by the amendment.

Following Howe, Senator Henderson, drafts­
man of the Thirteenth Amendment, defended the 
new proposal. (Globe, p. 3031.) He said that 
the South, after the adoption of the Thirteenth 
Amendment,

saw its opportunity and promptly collected 
together all the elements of prejudice and 
hatred against the negro for purposes of 
future party power. They denied him the 
right to hold real or personal property, 
excluded him from their courts as a wit­
ness, denied him the means of education, 
and forced upon him unequal burdens. 
Though nominally free, so far as discrimi­
nating legislation could make him so he was 
yet a slave. (Globe, p. 3034.)

He referred explicitly to the anti-slavery origins 
of the new amendment; to him, the Southern posi­
tion that the Negro was “ inferior to the white 
man” had caused the war because it came into 
irreconcilable conflict with the “ opposite idea of 
man’s equality * * carrying with it equal 
rights and equal privileges.” After the war, it



56

had become necessary “ to consider whether the 
cause of disease should be removed entirely or be 
left in the system to fester again.”  The amend­
ment, he said, was the only way to remove the 
cause of disease.

Senator Yates likewise expressed the belief that 
as a result of the Thirteenth Amendment the freed 
Negro had in law become “ one of the people, one 
of the body-politic, and entitled to be protected in 
all his rights and privileges as one of the citizens 
of the United States.”  (Globe, p. 3037.)

Following some unsuccessful attempts by the 
opposition to have the sections of the amendment 
submitted as separate propositions, and to strike 
out the privileges and immunities clause because 
it was too vague, the final vote was taken on June 
8. (Globe, p. 3042.) The amendment was 
adopted by a vote of 33-11, more than the neces­
sary two-thirds. (Ibid.)

In the House, the amendment was called up by 
Stevens on June 13, with the statement that the 
Senate amendments were so slight that there was 
no purpose in having lengthy discussion. (Globe, 
p. 3144.) There was a brief debate of a general 
nature not directed at any specific provisions of 
the amendment. (Globe, pp. 3144-3148.) That 
same day, the amendment, in the form in which it 
had passed the Senate, was approved by the 
House by a vote of 120 to 82.e0 60

60 (Globe, p. 3149.) The Fourteenth Amendment, as thus 
submitted, reads as follow s:



57

E. RATIFICATION OF THE FOURTEENTH AMENDMENT 
BY THE STATES

In contrast to the abundance of materials re­
lating to the legislative history of the Fourteenth 
Amendment in Congress, the available records 
concerning its ratification by the state legislatures

“ S ection 1. A ll persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of 
the United States and o f the State wherein they reside. No 
State shall make or enforce any law which shall abridge the 
privileges or immunities o f citizens of the United States; nor 
shall any State deprive any person of life, liberty, or prop­
erty, without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws.

“ S ection 2. Kepresentatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number o f  persons in each State, exclud­
ing Indians not taxed. But when the right to vote at any 
election for the choice o f electors for President and Vice 
President of the United States, Representatives in Congress, 
the Executive and Judicial officers o f a State, or the members 
o f the Legislature thereof, is denied to any o f the male in­
habitants o f such State, being twenty-one years o f age, and 
citizens o f the United States, or in any way abridged, ex­
cept for participation in rebellion, or other crime, the basis o f 
representation therein shall be reduced in the proportion 
which the number o f such male citizens shall bear to the 
whole number o f male citizens twenty-one years o f age in 
such State.

Section  3. No person shall be a Senator or Representative 
in Congress, or elector o f President and Vice President, or 
hold any office, civil or military, under the United States, or 
under any State, who, having previously taken an oath, as a 
member of Congress, or as an officer of the United States, or 
as a member of any State legislature, or as an executive or 
judicial officer o f any State, to support the Constitution of 
the United States, shall have engaged in insurrection or re­
bellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may by a vote of two-thirds 
o f each House, remove such disability.



58

are scanty and incomplete.61 State legislative 
debates for the period were not reported, except 
in Pennsylvania and, in digest form, in Indiana. 
Official records of state action are limited to the 
messages of the Governors transmitting the pro­
posed Amendment to the legislatures, often as 
merely a minor item in the annual message, 
occasional committee reports, and items entered 
in the legislative journals.

The Fourteenth Amendment was proposed by 
Congress on June 16, 1866. It was declared 
adopted on July 28, 1868, after thirty states 
had ratified it. During the years 1866 and 1867 
it was ratified by twenty-two states, including only 
Tennessee of the eleven former Confederate states.62

“ Section  4. The validity o f the public debt o f the United 
States, authorized by law, including debts incurred for pay­
ment o f pensions and bounties for services in suppressing in­
surrection or rebellion, shall not be questioned. But neither 
the United States nor any State shall assume or pay any 
debt or obligation incurred in aid o f insurrection or rebellion 
against the United States, or any claim for the loss or emanci­
pation o f any slave; but all such debts, obligations and claims 
shall be held illegal and void.

“ Section  5. The Congress shall have power to enforce, by 
appropriate legislation, the provisions o f this article.”

61 Our research in the state materials has necessarily been 
limited to those available in the Library of Congress, includ­
ing its Microfilm Collection o f Early State Records prepared 
under the supervision o f Professor W . S. Jenkins, o f the 
University of North Carolina. Detailed accounts o f the rati­
fication proceedings in all o f the states appear in the A p­
pendix to this brief.

62 In three o f these states— Ohio, New Jersey and Oregon— 
resolutions were passed by the state legislature in 1868 to 
withdraw the prior consent to the Amendment. In each in­



59

It was rejected by three border states and the other 
Southern states. In 1868, as a condition of resto­
ration under the Reconstruction Act, seven 
Southern states ratified the Amendment, along 
with Iowa, and it came into effect. Subsequently, 
in compliance with the Reconstruction Act, the 
other three Southern states ratified.

Ratification by the Northern states in 1866 and 
1867 was on the basis of party lines, with the Re­
publican legislatures approving the Republican 
plan of reconstruction for the South. Rejection 
by the Southern and the border states was based 
on opposition to that plan of reconstruction. In 
both cases the emphasis was upon the political 
clauses.63

The Fourteenth Amendment as “ a plan for re­
construction for the South”  was a highly contro­
versial party issue in the elections of 1866. Inter­
est centered on its political clauses: the redistri­
bution of representation under section 2 and the 
related question of Negro suffrage; the disqualifi­
cation of Southern leaders under section 3; and 
the war debt provisions of section 4. References 
to the first section during the election campaigns 
were, as a rule, brief and general in nature, such 
as, for instance, that this section made the Civil 
Rights Act of 1866 a part of the Constitution, that
stance the attempted “ rescission” came after a change in 
the party control of the legislature. See Flack, The Adop­
tion of the Fourteenth Amendment (1909), pp. 165-168, 
170.

63 A  more detailed review is in Flack, supra, chs. I l l ,  IV .



60

it meant Negro equality, or that it centralized 
power in Congress.64

With emphasis during the campaign of 1866 on 
the political clauses and with little need after the 
election to do more than carry out the decision of 
the voters, there was little occasion to analyze the 
Amendment in detail, and still less occasion to 
discuss the specific applications of the first sec­
tion. The Governors’ messages to the state leg­
islatures were in general terms, as were the 
committee reports recommending ratification.65 *

64 See Flack, supra, pp. 140-160.
65 Governor Morton o f Indiana, for example, said little 

more than that
“ No public measure was ever more fully discussed before 

the people, better understood by them, or received a more 
distinct and intelligent approval. I  will enter into no ar­
guments in its behalf before this General Assembly. Every 
member understands it. * * *”  (Indiana Senate Journal 
1867, p. 42.)

Governor Crawford o f Kansas submitted the Amendment 
with this comment:

“Whilst the foregoing proposed amendment is not fully 
what I  might desire, nor yet, what I  believe the times and 
exigencies demand, yet, in the last canvass, from Maine to 
California, it was virtually the platform which was submit­
ted to the people; the verdict was unmistakable. The people 
have spoken on the subject, at the ballot-box, in language 
which cannot be misunderstood.” (Kansas Senate Journal 
1867, p. 45.)

Governor Fenton o f New York, in recommending adoption 
o f “ a proposition so moderate and so just” stated that

“ I  need not discuss the features o f this amendment; they 
have undergone the ordeal o f public consideration since the 
adjournment of Congress in July last, and they are under­
stood, appreciated and approved. * * *



61

There were sufficient references to the first sec­
tion to show an understanding that it guaranteed 
to the Negroes full rights as citizens, but the exact 
content of those rights was not spelled out. It 
was to provide “ civil equality before the law,” 66 
“ equal protection of all citizens in the enjoyment 
of life, liberty and property,” 67 “ all the political 
and civil rights citizenship confers,” 68 and “ to 
destroy all legal caste within our borders.” 69 70

The first section was intended
to destroy every distinction founded upon a 
difference in the caste, nationality, race or 
color * * * which has found its way into 
the laws of the Federal and State Govern­
ments which regulate the civil relations or 
rights of the people. * * * In all matters 
of civil legislation and administration there 
shall be perfect legal equality in the ad­
vantages and securities guaranteed by each 
State to everyone here declared a citizen.™

In the debates in Pennsylvania, where school 
segregation existed, Senator Landon expressed 
this idea more forcefully:

“ There is no other plan before the people, and the verdict 
o f  the ballot-box implies that no other plan is desired. * * ”
(New York Assembly Journal 1867, vol. 1, pp. 13-14.)

"6 Governor Bullock, Massachusetts Acts and Resolves 
1867, p. 820.

87 Governor Brownlow, Tennessee Senate Journal, Called 
Session, 1866, p. 4.

68 Governor Oglesby, Illinois Senate Journal, 1867, p. 40.
89 Taylor in the Pennsylvania debates. Pennsylvania Leg­

islative Record, 1867, App., p. X X II .
70Jenks, opposing ratification, in the Pennsylvania de­

bates, id. p. X L I.



62

* * * You ask m e: what do you want for 
the colored man! I  reply, do you let the 
white rebel go to school? I  claim that the 
colored man shall go to school; do you pro­
tect the white man before the law, you shall 
protect the colored man before the same 
law; do you punish a crime in a colored 
man, you shall punish the same in a white 
man in the same way; and a virtue that will 
reward a white man shall be rewarded in 
the colored man. Do you let the white 
rebels of Carolina or Florida vote, then in 
the name of Heaven command that the 
colored man in the same State shall vote.71

Opposition to the amendment, in so far as it 
referred to the first section, was based on its 
transfer of power to the Federal Government.72

In the South, where the Amendment was at first 
rejected, emphasis was given to the political 
clauses, particularly those dealing with represen­
tation and with disqualification of the former

71 Id., p. IX .
72 Thus, the minority report o f the Wisconsin Senate Com­

mittee on Federal Relations commented that
“ The first section, in connection with the fifth, will give to 

the federal government the supervision o f all the social and 
domestic relations o f the citizens in the state and to subordi­
nate state governments to federal power.”  (Wisconsin Sen­
ate Journal 1867, p. 98.)

The minority report in New Hampshire characterized the 
Amendment as

“ * * * a dangerous infringement upon the rights and in­
dependence o f all the States, North as well as South, as­
suming, as it does, to control their legislation in matters 
purely local in their character.” (New Hampshire House 
Journal 1866, pp. 176-177.)



63

leaders of the South/3 The validity of the pro­
cedure by which the Amendment was submitted 
was also attacked, the argument being that a 
Congress from which representatives of the 
Southern states were excluded could not properly 
propose an amendment.73 74

The first section was attacked, not so much on 
the ground that it extended rights to the Negroes, 
but that it, together with the fifth section, en­
larged the powers of the Federal Government to 
such an extent as to destroy the rights of the 
states.75

73 See Flack, supra, p. 159.
74 See, for example, the report o f the Georgia Joint Com­

mittee on the State o f the Republic, Georgia Senate Journal, 
1866, pp. 65-71.

75 For example, Governor Patton o f Alabama, in recom­
mending rejection o f the Amendment, stated as an objection 
to the first section that:

“ It would enlarge the judicial powers o f the General Gov­
ernment to such gigantic dimensions as would not only over­
shadow and weaken the authority and influence of the State 
courts, but might possibly reduce them to a complete nul­
lity. It would give to the United States courts complete and 
unlimited jurisdiction over every conceivable case, however 
important, or however trivial, which could arise under the 
State laws. Every individual dissatisfied with the decision 
of a State court, might apply to a Federal tribunal for re­
dress.” (Alabama Senate Journal 1866, p. 33.)

Governor Walker o f Florida, referring to the first and fifth 
sections, stated that:

“ These two Sections taken together, give Congress the 
power to legislate in all cases touching the citizenship, life, 
liberty or property o f every individual in the Union, o f 
whatever race or color, and leave no further use for the State 
governments. It is in fact a measure o f consolidation entirely



64

The later messages of the Southern Governors 
recommending ratification of the Amendment be­
cause such ratification was a condition precedent 
to readmission into Congress contained no analy­
sis of the Amendment. The ratification of the 
Amendment by the Southern states was perfunc­
tory, without any discussion of its meaning or 
effect.76

In our review of the records of the ratifica­
tion proceedings, the specific references to the pos­
sible effect of the Amendment on education con­
sist of three brief statements: that of Senator 
Landon of Pensylvania, quoted supra, p. 62; a 
statement by Representative Ross in the Indiana 
debates that under the Amendment “ The blacks 
would sit with us in the jury-box, and with our 
children in the common schools” ; 77 and a report
changing the form of government.”  (Florida Senate 
Journal 1866, p. 8.)

76 A  typical example was Governor Murphy’s message to 
the Arkansas legislature in which he remarked that:

“ As the reconstruction laws require the ratification of 
this 14th Article before the State will be received and 
recognized as a State in the Union, it will be unnecessary 
for me to say more to the present Legislature, composed 
o f loyal citizens of the State, than merely call their atten­
tion to the importance of early attention to the ratification 
o f the same.” (Arkansas House Journal 1868, p. 19.)

The record of House action is equally typical.
“ On motion o f Mr. SIMS, the rules were suspended by a 

two-thirds vote, and the joint resolution was placed on its 
second reading; after -which it was engrossed, and read a 
third time and put upon its final passage by calling o f ayes 
and nays.”  (Id., p. 22.)

77 Brevier Legislative Reports, 1867, p. 80.



65

from a Kentucky contributor to a newspaper 
that the Democrats in Kentucky say “ That 
amendment admits * * * their children to the 
public schools. * * *” 78

The paucity of the available materials on the 
ratification of the Fourteenth Amendment by the 
states is such as to preclude any definite con­
clusion as to the existence of any general un­
derstanding of the effect which the Amendment 
would have on racial segregation in public schools. 
Apart from the few scattered references given 
above, we have found no manifestations of an 
awareness in the state legislatures that the 
Amendment would affect public education, as this 
Court later held in Missouri ex rel. Gaines v. 
Canada, 305 U. S. 337, and related cases (see pp. 
143-149, infra), by imposing on a state the 
duty of furnishing such education to all its 
citizens, i f  furnished to some, on a basis of equal­
ity of right. The available materials do show 
that there were widespread expressions of a gen­
eral understanding of the broad scope of the 
Amendment similar to that abundantly demon­
strated in the Congressional debates (pp. 20-56, 
supra), namely, that the first section of the 
Amendment would establish the full constitutional 
right of all persons to equality before the law and 
would prohibit legal distinctions based on race or 
color.

McPherson’s Scrap Book, Fourteenth Amendment, p. 
84 (name o f paper not given).



66

F. CONTEMPORANEOUS ACTIONS, FEDERAL AND STATE, 
BEARING ON SCHOOL SEGREGATION

The Reconstruction period, during which the 
Fourteenth Amendment was adopted, also wit­
nessed other actions, both in Congress and the 
states, which are relevant to an inquiry into the 
contemporaneous understanding of the Amend­
ment’s effect on school segregation. The 39th 
Congress in 1866 also passed laws concerning (a) 
the schools maintained by the Freedmen’s Bu­
reau, and (b) the public schools in the District 
o f Columbia. In the proceedings in Congress 
in 1868 and 1870 on the readmission of the South­
ern states there were some references to the mat­
ter of public school education for Negroes. In 
later Congresses, repeated efforts were made, 
particularly under the leadership of Senator 
Sumner, to provide specific enforcement of the 
rights secured by the Fourteenth Amendment. 
These efforts culminated in the Civil Rights Act 
of 1875. At one stage in its legislative history 
that Act contained a provision forbidding racial 
segregation in public schools. In the states, vari­
ous actions were taken to provide public educa­
tion for Negroes. In some states, particularly in 
the North, existing laws for segregated schools 
were continued; in other states, particularly in 
the South, school segregation laws were enacted 
shortly after the Fourteenth Amendment was 
adopted; in still other states, provisions for mixed 
schools were enacted. In this section of the brief



67

we shall summarize these actions, both federal and 
state, and attempt to evaluate them as evidence of 
a contemporary understanding as to the Four­
teenth Amendment’s effect on raeial segregation 
in public schools.

1. Federal legislation in the 39th Congress

(a) The Freedmen’s Bureau Extension Act. 
In May 1866 there was again raised in the House 
the question of extending the life of the Freed­
men’s Bureau and providing it with the authority 
to safeguard the welfare and civil rights of the 
freedmen. (Congressional Globe, 39th Cong., 1st 
Sess., p. 2743.) Representative Eliot reported 
from his Select Committee on Freedmen a bill 
(H. R. 613) similar to the one vetoed by President 
Johnson in February 1866 {supra, pp. 23-25), 
and it passed the House without any particularly 
significant discussion. (Globe, p. 2878). In the 
Senate, it was referred to the Military Affairs 
Committee, of which Senator Wilson was chair­
man, and was favorably reported with substantial 
amendments. (Globe, p. 3409). It passed the 
Senate in June, but was vetoed by the President. 
(Globe, pp. 3413, 3838.) With no discussion, the 
veto was overridden in both House and Senate, 
and the bill became law July 16, 1866. (Globe, 
pp. 3842, 3850; 14 Stat. 173.)

The House version of the bill had made provi­
sion for the maintenance of schools for the freed­
men, with equipment and teachers to be supplied



68

by private societies.79 The Senate kept that provi­
sion, and added a provision for financing the 
schools from the property of the Confederate 
States. (Globe, pp. 3409, 3410.) After the ter­
mination of the Freedmen’s Bureau, the remain­
ing proceeds of such property were to be dis­
tributed proportionately to those southern states 
“ which have made provision for the education of 
their citizens without distinction of color.”  There 
was also resolved a long-standing dispute as to the 
disposition of certain islands off Georgia and 
South Carolina, which General Sherman had de­
voted to the freedmen’s use. (Globe, p. 2809.) 
One provision in resolution o f that dispute dis­
tributed the proceeds of a certain portion of those 
lands to “ the support of schools, without distinc­
tion o f color or race, on the islands in the parishes 
o f St. Helena and St. Luke.”  (Globe, p. 3409.)

These two provisions are the only instances in 
which the 39th Congress legislated directly to es­
tablish schools that were financed in whole or in 
part from Federal funds, and it is noteworthy 
that in these provisions it expressed a policy

The educational societies concerned were tlie successors 
o f the former abolitionist groups and adhered to their con­
cepts o f equality in civil rights. Thus, the American Freed­
men’s Union Aid Commission, a central organization of 
these societies, had in its constitution a provision that “ no 
schools or supply depots shall be maintained from the bene­
fits o f which any person shall be excluded because o f color.”  
American Freedman (1866), p. 18.



69

favoring schools making no distinctions on 
grounds of race or color.

(b) School Legislation for the District of Co­
lumbia. A  month after the 39th Congress sub­
mitted the Fourteenth Amendment to the states, 
it provided that an earlier school act for the Dis­
trict of Columbia (the Act o f June 25, 1864, 13 
Stat. 187) should be construed to require the au­
thorities of Washington and Georgetown to pay 
over certain moneys for the support of the sepa­
rate colored schools in those cities (Act of July 23, 
1866, 14 Stat. 216). A  week later, on the final day 
of the session, Congress passed a bill authorizing 
a grant of three lots in Washington for colored 
schools (Act of July 28,1866,14 Stat. 343).

Separate schools for colored children had been 
established for Washington County by the Act of 
May 20, 1862, 12 Stat. 394, and for the cities of 
Washington and Georgetown by the Act of May 
21, 1862, 12 Stat. 407. When Congress in the 
Act o f June 25, 1864, supra, provided a realloca­
tion of taxes for the support of the various Dis­
trict school systems, it left unchanged the exist­
ing provisions for separate colored schools. It is 
to be noted that none of the foregoing measures 
received much attention in Congress. There were 
no written committee reports. All were considered 
perfunetorily as part of routine District busi­
ness, and were passed with scarcely any debate or 
division in vote. (Globe, 37th Cong., 2d Sess. pp.

280315— 53------0



70

1544, 2037, 2157; Globe, 38th Cong., 1st Sess., pp. 
2814, 3126.)80

It is contended that the 1866 school legislation 
for the District of Columbia evidences an under­
standing by the 39th Congress, which proposed 
the Fourteenth Amendment, that the Amendment 
did not prohibit racially-segregated schools. We 
believe that no persuasive inference can be drawn 
of any connection between these acts and the 
Amendment. In the first place, separate schools 
in the District for colored children had been 
established by Congress four years before the 
Fourteenth Amendment was proposed. The 1866 
Acts were only implementations of the existing 
legislation. The legislative history of those meas­
ures contains no indications that they were re­
garded as having any relation to the Fourteenth 
Amendment. The latter was the product of the 
Joint Committee on Reconstruction; the District 
schools bills were reported by the Senate and 
House District Committees, none of whose mem­
bers was on the Joint Committee. (Globe, 39th 
Cong., 1st Sess., pp. 11, 21, 57, 106.) The Amend­
ment was passed by Congress only after prolonged 
and searching debate, while the school measures 
were considered perfunctorily, amid a welter of 
routine District business. There were no committee

80 Cf. Metropolitan Rd. v. District of Columbia, 132 U. S. 
1, o, on the limited extent o f interest and interference by 
Congress in the internal affairs o f the District prior to the 
Organic Act o f 1871,16 Stat. 419.



71

reports, no debate or noteworthy comment. There 
was no roll call vote in either House or Senate 
on these bills. (Globe, 39th Cong., 1st Sess., pp. 
2719, 3906, 4278.)

The Act of July 23, 1866, dealt with a question 
raised in a local controversy regarding the alloca­
tion of school funds. It merely provided that there 
would be made available for the Negro schools, 
newly-created under the legislation of 1862, the 
funds which the Congress had previously com­
mitted for their support, but which had been locally 
withheld. Similarly, in the Act of July 28, 1866, 
the question was merely one o f easing the financial 
burden of supporting the Negro schools by the do­
nation of building sites. In the debates on these 
bills, characterized by their sponsor, Senator Mor­
rill of Maine,81 as “ very small measures * * * 
which will take no great time anyway”  (Globe, 39th 
Cong., 1st Sess., p. 2716), there is no evidence that 
any member of Congress thought that its action on 
these measures would constitute a legislative inter­
pretation of the Fourteenth Amendment, or indeed 
that the Amendment was in any way relevant. 
Congress was exercising its exclusive jurisdiction 
over the District, to which the Fourteenth Amend­
ment in terms did not apply. Moreover, the condi­
tions prevailing in the District during this period

81 Senator Morrill, in the debates during this same session 
on the Civil Eights Act, expressed the conviction that the 
Constitution forbade distinctions based on race or color. 
(Globe, 39th Cong., 1st Sess., pp. 570-571.)



72

were such as to make the question of mixed or sepa­
rate schools relatively unimportant. Throughout 
the entire period the overriding problem was to 
make a beginning in providing some schools for 
Negroes. Prior to the war, the problem of Negro 
education had been completely disregarded by the 
Congress; and at each step taken after 1860, atten­
tion was focussed on the need of creating educa­
tional facilities for a race that theretofore had re­
ceived no public educational benefits. Details of 
school organization were subordinated to that need, 
and were not considered and discussed in Congress.

2. Legislation in Congress after 1866

(a) Readmission of the Southern States. Un­
der the Reconstruction Act of March 2, 1867 (14 
Stat. 428) the Southern states, as a condition of 
representation in Congress, were required to form 
“ a constitution of government in conformity with 
the Constitution of the United States in all re­
spects” which was to be submitted to Congress 
“ for examination and approval.” In 1868, the 
new constitutions were submitted to Congress by 
Alabama, Arkansas, Florida, Georgia, Louisiana, 
North Carolina, and South Carolina, and those 
states were readmitted (15 Stat. 72, 73). None of 
these state constitutions provided for separate 
schools for colored children; in at least three of 
them (Louisiana, South Carolina, and Florida) a 
provision for mixed schools was expressed or im­
plied. (See infra, pp. 97-98.)



73

In the House debates, opponents of the recon­
struction program unsuccessfully objected to pro­
visions in the constitutions of Alabama (Congres­
sional Globe, 40th Cong., 2d Sess., pp. 1937, 2197), 
Arkansas (Globe, p. 2395), Louisiana (Globe, p. 
2449), and South Carolina (Globe, p. 2447), which 
they thought required mixed schools.

In the Senate debates on the readmission of 
Arkansas, Senator Drake of Missouri proposed 
the following condition:

That there shall never be in said State any 
denial or abridgment of the elective fran­
chise, or of any other right, to any person 
by reason or on account of race or color, 
excepting Indians not taxed. (Globe, p. 
2748.)

Senator Henderson of Missouri offered as a 
substitute:

* * * the further condition that no person 
on account of race or color shall be ex­
cluded from the benefits of education, or 
be deprived of an equal share of the moneys 
or other funds created or used by public 
authority to promote education in said 
State.

In the ensuing colloquy it appeared that Senator 
Henderson feared that the term “ or of any other 
right” in Senator Drake’s proposal might be con­
strued as requiring mixed schools. Accordingly, 
his substitute was intended explicitly to permit 
separate schools. (Globe, p. 2748.)



74

In answer to a question from Senator Hender­
son, Senator Frelmghuysen of New Jersey (not 
a member of Congress when the Fourteenth 
Amendment was proposed) stated his view that 
neither the Drake proposal nor the Amendment 
“ touches that question, as to what school they 
shall be educated in * * (Globe, p. 2748.) 
Senator Henderson explained that:

I  desire that the negroes shall have an 
equal right in the school moneys, but that 
the State may require them to be educated 
in different schools from the whites. * * * 
But I  would not provide here by a condi­
tion that the States should extend the same 
rights to the negroes in regard to office­
holding, marrying, or anything else, that 
they do to the whites * * *

His amendment was defeated, however, by a 
vote of 30 to 5 ( ibid). The Drake amendment 
was agreed to,82 but subsequently the Senate ac­
cepted the House version of the bill not contain­
ing that amendment.

In 1870 Virginia (16 Stat. 62), Mississippi (16 
Stat. 67) and Texas (16 Stat. 80) were read­

82 The omnibus bill for the admission o f other Southern 
states, reported from the Judiciary Committee the next 
day (Globe, p. 2759), contained the Drake amendment with 
the words “ or any other right” omitted. Senator Trum­
bull explained that their insertion “might be construed by 
some persons as applying possibly to social rights, or rights 
in schools, which the Senator from Missouri did not in­
tend; and as the committee thought there was no impor­
tance in the words they are left out of the amendment.” 
(Globe, p. 2858.)



75

mitted. Each act of admission contained a con­
dition :

That the constitution * * * shall never he 
so amended or changed as to deprive any 
citizen or class of citizens of the United 
States of the school rights and privileges 
secured by the constitution of said State.

The bill for the admission of Virginia as re­
ported by the Committee on Reconstruction (H. 
R. 783, 41st Cong., 2d Sess., Globe, p. 362) con­
tained an express prohibition on amending the 
state constitution:

* * * to prevent any person on account 
of race, color, or previous condition of serv­
itude from * * * participating equally in 
the school fund or school privileges provided 
for in said constitution * * *

Its inclusion was explained as required by the 
bitter hostility to the common-school system ex­
pressed by the newly elected Governor of Vir­
ginia. (Globe, pp. 402, 442, 546.) It was justified 
as essential to a republican form of government. 
(Globe, pp. 485, 500.) Similarly, the provision 
concerning school rights in the bill for the ad­
mission of Mississippi was justified as a means of 
preserving a republican form of government. 
(Globe, pp. 1253, 1255.) The view was also ex­
pressed that under the Fourteenth Amendment 
the colored man was entitled to “ the same rights 
and privileges of schools that the white man has 
* * (Globe, p. 1329.) The debates are con­
cerned, however, with the guarantee of education to



76

the Negroes rather than with the question of sepa­
rate schools.

Georgia was “ reconstructed”  a second time (16 
Stat. 59, December 22, 1869) and readmitted in 
July 1870 (16 Stat. 363). The bill for admission 
of Georgia (H. R. 1335, 41st Cong., 2d Sess.; 
Globe, p. 1702) contained a condition on school 
rights similar to that in the Virginia, Mississippi, 
and Texas acts, but the final act contained no 
conditions. The debates indicate the same view 
that opportunity of education for the Negroes was 
an element of a republican form of government 
(Globe, p. 1704).

In smn, therefore, the debates on the readmis­
sion of the Southern states into the Union fail to 
disclose any definite understanding as to the 
effect of the Fourteenth Amendment on school 
segregation, but it is of some significance that none 
of the state constitutions submitted to and ap­
proved by Congress as being “ in conformity with 
the Constitution of the United States in all re­
spects”  provided for segregated schools (see 
nfra, pp. 97-98).

(b) Legislative Attempts to Abolish School 
Segregation in the District of Columbia. In 1871 
the issue of public schools of the District of 
Columbia came squarely before the 41st Congress. 
On January 23, 1871, a bill was introduced in the 
Senate, S. 1244, to regulate the organization and 
conduct of the public schools in the District of 
Columbia. (Globe, 41st Cong., 3d Sess., p. 663.) 
The bill was reported by the District Committee



77

with an amendment which would abolish racial 
segregation in the District schools. (Globe, p. 
1054.83) The amendment was vigorously sup­
ported on the floor of the Senate by Senator Sum­
ner, a member of the District Committee, and 
several other Senators on the ground that it was 
required by the principle of equality underlying 
the Fourteenth Amendment. (Globe, pp. 1055, 
1056, 1058.) Sumner stated that “ Every child, 
white or black, has a right to be placed under 
precisely the same influences, with the same teach­
ers, in the same school room, without any dis­
crimination founded on his color” . (Globe, p. 
1055.) Senator Carpenter of Wisconsin agreed:

Mr. President, we have said by our Con­
stitution, we have said by our statutes, we 
have said by our party platforms, we have 
said through the political press, we have 
said from every stump in the land, that 
from this time henceforth forever, where 
the American flag floats, there shall be no 
distinction of race or color or on account 
of previous condition of servitude, but that 
all men, without regard to these distinc­
tions, shall be equal, undistinguished before 
the law. Now, Mr. President, that prin­
ciple covers this whole case. (Globe, p. 
1056.)

None of the opponents of the bill explicitly con­
troverted the view that the Amendment’s broad

“ This and succeeding references to the Congressional 
Globe are, until otherwise noted, to the 41st Cong., 3d Sess.



78

principle applied to racial segregation in the 
schools. (See Globe, pp. 1054, 1056, 1057, 1059, 
1060.) The bill, however, was dropped without any 
vote, in favor of more pressing business, and was 
not taken up again. (Globe, p. 1061.)

Another bill was introduced by Senator Sumner 
in the next Congress on December 12, 1871. (S.
365, Globe, 42d Cong., 2d Sess., p. 68.) This bill, 
“ to secure equal rights in the public schools of 
Washington and Georgetown,”  would also have 
abolished racial segregation in those schools. 
Like its predecessor, it was put aside, after a brief 
debate containing nothing of significance here, 
without any vote, in favor of other business. 
(Globe, 42d Cong., 2d Sess., pp. 2539, 2542, 3057, 
3058, 3099-3100, 3122-3125.)

(c) Civil Rights Act of 1875. The issue of 
racial segregation in public schools came before 
the Congress for extended but indecisive consider­
ation between 1870 and 1875 in connection with 
the efforts of Senator Sumner and others for 
further civil rights legislation.

Sumner, advocate of the 1871 proposals to 
abolish racial segregation in the District public 
schools, had in 1870 introduced a bill to secure the 
right of all citizens throughout the United States 
to “ full and equal enjoyment”  in respect of thea­
ters, conveyances, inns, and public schools. (S. 
916, 4.1st Cong., 2d Sess., Globe, p. 3434.) In 
substantially its original form, it was reintroduced



79

in each subsequent Congress until 1873, but with­
out success. In 1872, it was twice attached to 
amnesty bills in the Senate. (H. R. 380, H. R. 
1050, 42d Cong., 2d Sess., Globe, pp. 919, 3288.) 
Both of these amnesty bills (with the civil rights 
rider) failed because they did not receive in the 
Senate the two-thirds vote required under section 3 
of the Fourteenth Amendment, although they did 
receive majority approval. Similarly, efforts dur­
ing the same session to suspend the House rules to 
bring up the House counterpart of Sumner’s bill 
failed of the two-thirds vote necessary, despite clear 
majorities. (Globe, 42d Cong., 2d Sess., pp. 1956, 
3383, 3932, 4321-4322.) The debates in Congress on 
these bills proceeded on the understanding that they 
would require non-segregated schools throughout 
the country, and this was one of the most contro­
versial points in issue. (Globe, 42d Cong., 1st 
Sess., App., p. 216; Globe, 42d Cong., 2d Sess., pp. 
241-243, 384; 2 Cong. Rec. 4088.)

I n 1873, in the first session of the 43d Congress, 
Sumner again introduced a bill prohibiting segre­
gation generally, including segregation in the 
schools. Civil and criminal penalties were pro­
vided for violation. (S. 1; 2 Cong. Rec. 10.) In 
March 1874, a month after Sumner’s death, the 
bill was reported favorably by the Senate Judi­
ciary Committee. (2 Cong. Rec. 3053.) An at­
tempt on the floor to amend the bill by adding a 
provision permitting “ separate but equal”  schools



80

failed (2 Cong. Ree. 4167), and in May the bill 
passed the Senate (2 Cong. Ree. 4176). However, 
several efforts to bring the bill up for considera­
tion in the House failed because of dilatory tactics 
on the part of the minority. (2 Cong. Rec. 4242, 
4439, 4691, 5162.)

In 1874, in the second session of the 43d Con­
gress, the House Judiciary Committee reported a 
civil rights bill similar to Sumner’s, but containing 
a provision expressly permitting “ separate but 
equal”  schools. (H. R. 796; 3 Cong. Rec. 116.) 
Consideration on the floor was again impeded by the 
tactics of the minority, which forced one continuous 
three-day session. (3 Cong. Rec. 786-829.) A  
compromise was finally reached (see infra, pp. 82- 
84), and the bill passed the House on February 4, 
1875, after deletion not only of the provision for 
segregated schools, but also of any reference what­
ever to schools. (3 Cong. Rec. 1010,1011.) Senate 
approval of the bill, in the compromise form, fol­
lowed shortly thereafter. (3 Cong. Rec. 1870.) 
The bill, which has come to be known as the Civil 
Rights Act of 1875, became law on March 1, 1875, 
18 Stat. 335.®*

The members of Congress who throughout this 
period persisted in their advocacy of unsegregated 
schools included many who had been prominent 84

84 This Act was declared unconstitutional in 1883 in the 
Civil Rights Cases, 109 TJ. S. 3, the Court holding that the 
Fourteenth Amendment’s prohibitions extended only to state 
and not to individual actions.



81

in the passage of the Fourteenth Amendment in 
1866.85 Sumner was their leader until his death. 
His view, frequently expressed, was that the Re­
construction Amendments had established the 
sweeping principle that

all persons without distinction of color 
shall be equal before the law. Show me, 
therefore, a legal institution, anything cre­
ated or regulated by law, and I show you 
what must be opened equally to all without 
distinction of color. Notoriously, the hotel 
is a legal institution, originally established 
by the common law, subject to minute pro­
visions and regulations; notoriously, public 
conveyances are in the nature of common 
carriers subject to a law of their own; 
notoriously, schools are public institutions 
created and maintained by law; and now I  
simply insist that in the enjoyment of those 
institutions there shall be no exclusion on 
account of color. (Cong. Globe, 42d Cong., 
8d Sess., p. 242; see also, supra, p. 77.)

To Sumner, public schools86 established by law 
could not be maintained on a segregated basis:

85 For example, in 1874 when the Senate passed Sumner’s 
bill (S. 1) prohibiting racial segregation in the public 
schools, by a vote of 29 to 16, the majority included nine 
former members o f the 39th Congress—Allison, Boutwell, 
Conkling, Edmunds, Howe, Morrill o f Vermont, Stewart, 
Washburn and Windom. No Senator who had participated 
in the framing o f the Fourteenth Amendment voted with 
the minority. 2 Cong. Kec. 4176.

86 Sumner agreed to provisions permitting segregation in 
private schools, as proposed by Frelinghuysen. (Globe, 
42nd Cong., 2d Sess., 435,487,3267.)



82

The separate school wants the first requisite 
of the common school, inasmuch as it is not 
equally open to all; and since this is incon­
sistent with the declared rule of republican 
institutions, such a school is not republican 
in character. Therefore it is not a prepa­
ration for the duties of life. The child is 
not trained in the way he should go; for 
he is trained under the ban of inequality. 
How can he grow up to the stature of equal 
citizenship? He is pinched and dwarfed 
while the stigma of color is stamped upon 
him. (Globe, p. 384.)

Senators Conlding, Boutwell and Justin Mor­
rill, all members of the Joint Committee on Re­
construction in 1866, apparently shared Sumner’s 
views. (See, e. g., 2 Cong. Rec. 4151, the vote 
rejecting the 1 ‘separate but equal” amendment.) 
Others of the majority likewise rejected the con­
tention that separate school facilities were permis­
sible under the Fourteenth Amendment. To 
Morton of Indiana, the Senate majority leader, 
segregation was a violation of the principle of 
equality embodied in the Fourteenth Amendment, 
which had taken “ from the States the power to 
make class legislation.” (Cong. Globe, 42d Cong., 
2d Sess., p. 847.) Senator Pease of Mississippi 
agreed that there could be no real equality in 
“ equal advantages in separate schools.” (2 Cong. 
Rec. 4154.) See also footnote 40, infra, p. 103.

The opposition in the Senate was led by Senator 
Thurman of Ohio, of the minority party, who 
argued that equal protection of the laws, with



83

regard to public schools, required only that, school 
funds should be applied so that “ each citizen shall 
have an equal advantage from its application.” 
(Globe, 42d Cong., 2d Sess., App. p, 26; see 
2 Cong. Rec. 4083-4089.) Other members of the 
minority expressed the view that the requirement 
of equality was satisfied if  the separate facilities 
were equivalent. (See, e. g., Globe, 42d Cong., 2d 
Sess., p. 241.)

As discussed supra, p. 79, the Sunnier bill was 
not reached in the House, which took up instead a 
similar bill that contained a provision permitting 
schools to be “ separate but equal” . (H. R. 796, 
supra.) The school issue proved a stumbling 
block, and a compromise was reached on the bill, 
striking all reference to schools, only a short time 
before its passage. Congressman Cain of South 
Carolina, a Negro, indicated that for the sake of 
unity within the majority party, the Negroes 
would accede to the elimination of all reference to 
schools. (3 Cong. Rec. 957, 981-982.) As Con­
gressman Monroe of Ohio stated, the Negroes 
thought that “ their chances for good schools will 
be better under the Constitution with the protec­
tion of the courts than under a bill containing 
such provisions as this [the “ separate but equal”  
provision].”  (3 Cong. Rec. 998.) Moreover, 
the fear was expressed that if  the provision 
requiring mixed schools was insisted upon “ then 
in certain States of the South schools will be 
abandoned altogther.”  (3 Cong. Rec. 981.)



84

The controversy in the House and the reasons 
for the compromise effected were fully summarized 
by Congressman Butler of Massachusetts, Chair­
man of the Judiciary Committee, who himself had 
also been a member of the 39th Congress:

There are two kinds of opinion in the re­
publican party on this question, I  myself 
would legislate equal privileges to white and 
black in the schools, if  I  had the power, first, 
to legislate, and secondly, to enforce the leg­
islation. But the difficulty I  find in that is, 
that there is such a degree of prejudice in 
the South that I  am afraid that the public- 
school system, which has never yet obtained 
any special hold in the South, will he broken 
up if we put that provision into the bill. 
Then comes the provision of the committee 
that there shall be separate schools wherever 
schools are supported by taxation. There 
are some difficulties with an unwilling peo­
ple in carrying out that provision, and 
there is an objection to it on the part of the 
colored people, because they say they desire 
no legislation which shall establish any 
class distinction.

Then comes the proposition * * * to 
strike out all relating to schools. I  should 
very much rather have all relating to schools 
struck out than have even the committee’s 
provision for mixed schools. (3 Cong. Ree, 
1005-1006.)

It  would appear, therefore, that the compromise 
form of the bill as enacted represented mutual 
concessions by the opposing groups, not as to the



85

substantive issue of the power of Congress to 
prohibit school segregation, but solely in recogni­
tion of the impossibility of securing from the Con­
gress at that, time any decision between the con­
flicting views on this question.

The Congressional actions subsequent to 1866, 
which have been summarized above, have rele­
vance as early interpretations of the scope of the 
Fourteenth Amendment. However, as evidence of 
contemporaneous understanding, their value is 
doubtful. Although only a few years had elapsed 
since the adoption of the Amendment, there had 
occurred a substantial change not only in the 
membership of the Congress, but in the intensity 
of the movement, which had reached its high point 
in 1866 with the proposal of the Fourteenth 
Amendment, for securing through national action 
full protection of the Negro’s right to equal treat­
ment.

Throughout this period there were consistent 
legislative attempts to implement the principles 
of equality embodied in the Fourteenth Amend­
ment. One such attempt, remarkable for its per­
sistence, was the attempt to end segregation in the 
public schools. While it ended in failure, the con­
sideration and the support it received in Congress 
indicate that a substantial group in the Congress, 
at times a majority, regarded it as necessary and 
appropriate in carrying out the broad principles 
established in the Fourteenth Amendment. The 
failure of this effort resulted in part from the use

280315— 53-------7



86

of dilatory parliamentary tactics by the opposi­
tion. Another contributory factor was the belief 
of a substantial number of Congressmen that legis­
lation to prohibit school segregation would destroy 
the public school system in the South, then in its 
infancy, and would thus completely deprive Ne­
groes in that section of the benefit of public 
education.

The failure to include a provision in the Civil 
Rights Act of 1875 specifically forbidding public 
school segregation does not appear to represent 
a legislative judgment that the Fourteenth 
Amendment permitted such segregation, or that it 
could not be judicially construed, in the light of 
future conditions, to require invalidation of state 
segregation laws. As has been shown, some mem­
bers of Congress may have accepted the compro­
mise form of the bill because it would preserve the 
question of equal educational treatment of Negroes 
for later judicial determination. No conclusive in­
ferences can be drawn, therefore, from the legis­
lative history of the 1875 Act to show an under­
standing either that the Amendment precluded or 
permitted state laws providing for segregation in 
public schools.

3. State legislation and decisions

At the time when the Fourteenth Amendment 
was before the states for ratification and during 
the period immediately after ratification, there 
was widespread interest and concern in the ex­
tension of public education. Prominent in the



87

discussions was the question of education for the 
Negroes" not merely in the South, where four 
million freedmen had to be educated to meet 
their new responsibilities as citizens, but also in 
the North, where the events of the preceding 
years had called attention to the status of the 
Negroes in those states as well.

The movement for general public education, 
which had begun in the 1830’s, took on new im­
petus in both the North and South after the 
Civil War. Nearly every Governor’s message 
in the postwar period dealt with the problem 
of public education in the state, making sugges­
tions for improvement and justifying larger ex­
penditures in the interest o f general enlighten­
ment. In the South the Reconstruction consti­
tutional conventions were all concerned with pub­
lic education. Each of the Constitutions speci­
fied that it was the duty of the legislature to* 
make provision for education of all the children 
of the state, and the first legislatures elected 
under them passed comprehensive common school 
laws.

Although the governors, both in the Northern 
and Southern states, in urging education for the 
Negroes made their recommendations contempo­
raneously with submission of the Fourteenth- 
Amendment for ratification, and frequently in 
the same message, there was no reference to the 
Amendment as relevant to the question. Edu­
cation of the Negroes was said to be required:



by state constitutional provisions, by natural jus­
tice, and by the desirability of educating the citi­
zens of a republic. The question was dealt with 
not in the framework of federal constitutional 
requirements, but as a matter of determining 
state policy.

Congress also regarded education as important 
for the protection of the Negroes in their new 
status. As has been noted supra, pp. 74—75, in the 
acts restoring Mississippi (16 Stat. 67), Texas 
(16 Stat. 80) and Virginia (16 Stat. 62) to rep­
resentation, Congress specified that the state con­
stitutions should never be amended to deprive 
any citizen of “ the school rights and privileges 
secured by”  those constitutions. Similar provi­
sions were considered and rejected in considera­
tion of the readmission of Arkansas (Congres­
sional Globe, 40th Cong., 2d Sess., p. 2748) and 
Georgia (Congressional Globe, 41st Cong., 2d 
Sess., p. 4796). These debates are inconclusive, 
however, on the relevance of the Fourteenth 
Amendment to this question, with greater atten­
tion being given to education as an element in 
a republican form of government.

Furthermore, there was no apparent awareness 
in the states that the Fourteenth Amendment 
required that education for colored children be 
furnished on a basis of equality. Thus, the laws



89

of California,87 Indiana,88 and Ohio89 at the time 
did not provide schools for colored children in 
areas where they were insufficient in number to 
warrant a separate school. Those of Delaware 
and Maryland allotted to Negro education only 
taxes raised among the colored population.90 In 
New York in 1869 the Supreme Court in Dallas v. 
Fosdick91 sustained the validity of segregated 
schools in Buffalo, saying that

The right to be educated in the common 
schools of the state, is one derived entirely 
from the legislation of the state; and as 
such, it has at all times been subject to 
such restrictions and qualifications as the 
legislature have from time to time deemed 
it proper to impose upon its enjoyment.

As is more fully discussed infra, pp. 104-110, this 
failure to appreciate the applicability of the 
Fourteenth Amendment to the subject of public 
education appears to have been widely shared at 
the time, and conceivably may explain the ratifica­
tion of the Amendment by legislatures in states 
where school segregation then existed or was 
established shortly thereafter.

87 Cal. Laws 1866, c. 342, sec. 57.
88Ind. Laws 1869 (Special Session), p. 41, sec. 3.
89 51 Ohio Laws, p. 429, sec. 31 (1853), as amended, 61 Ohio 

Laws 31, sec. 4 (1864).
"D e l. Laws 1875, c. 48; Md. Laws 1868, c. 407, c. ix.
81 How. Prac. Eep. 249, 251 (Sup. Ct. 1869).



90

a. Negro education in the North. At the time 
of the adoption of the Fourteenth Amendment, 
Negroes had been given some share in the publie 
school systems established in the great majority of 
the Northern and border states.92 The form and 
extent of their participation varied greatly, from 
complete absence of segregation in the New Eng­
land states to strict segregation in others. Some 
states made segregation mandatory; others left 
it to the discretion of the local school boards 
either by specific authority in the state legislation 
or under the general powers of the local boards; 
others prohibited the exclusion of colored children 
from public schools of their choice.93 Historically, 
the usual sequence was the establishment of a 
public school system for white children, followed 
either by the admission of colored children or by 
the creation of separate schools for Negroes.

92 There were five states outside of the South (Indiana, 
Illinois, Kentucky, Maryland, and Delaware, the last three 
being slavery states), which in their laws, either directly or 
by implication, excluded colored children entirely from the 
public schools.

93 The laws o f eight states provided generally for separate 
schools for colored children: California, Kansas, Missouri, 
Nevada, New York, Ohio, Pennsylvania, and West Virginia. 
Thirteen states had either no segregation law or expressly 
prohibited segregation: Connecticut, Iowa, Maine, Massa­
chusetts, Michigan, Minnesota, Nebraska, New Hampshire, 
New Jersey, Oregon, Rhode Island, Vermont, and Wiscon­
sin. The state laws are discussed^in detail in the Appendix 
to this brief. A  brief survey is contained in Barnard, Spe­
cial Report of the Commissioner of Education, 41st Cong., 
2d Sess., H. Ex. Doc. No. 315 (1871), p. 323 et seq.



91

Although in the North the emphasis was on 
improved public education for all, the emancipa­
tion of the Negroes focussed interest on their 
education. Governor Morton of Indiana, for ex­
ample, in his message to the legislature in 1865,94 
urged that, as a matter of “ natural justice”  as 
well as “ sound political economy”  and as an ex­
ample to the Southern states, the Negroes should 
be given educational opportunities in the public 
school system. He said:

An ignorant and degraded element is a bur­
den and injury to society, whatever may be 
its color. It therefore becomes a matter of 
sound political economy, as well as absolute 
justice, that whatever colored population we 
may have should be educated, and enabled 
to become intelligent, industrious and use­
ful members of the community.95

Along with the question whether education for 
the Negroes should be provided, was the question 
of how they were to be educated, whether in mixed 
schools or in separate schools. This, too, was dis­
cussed without reference to the Fourteenth Amend-

94 Brevier Legislative Reports 1865, pp. 31-32.
95 Similarly, in 1869 the Superintendent o f Public Instruc­

tion in Illinois pleaded with the legislature to extend public 
education to the 7,000 colored children who were excluded 
from “ all the blessings o f public education.”  (111. Doc. 1869, 
vol. 2, p. 557.) Compare the report o f the School Superin­
tendent o f Indiana to the state legislature in 1867, in which he 
concluded that “the welfare o f the government, i. e., the State 
requires the education of all the community, hence o f the 
colored man. * * *” (Ind. Doc. 44th Reg. Sess. (1867), 
Part I, p. 338.)



merit, at least prior to 1872, when the decision of 
the Supreme Court of Ohio in State ex ref. 
Games v. McCann, 21 Ohio St. 198, directed 
public attention to the issue. (See infra, pp. 102- 
103). In 1870, Governor Bowie, in recommending 
modification of the Maryland school law to pro­
vide education for colored freedmen, made no 
reference to the Fourteenth Amendment:

* * * I f  at a period, immediate or remote, 
they are to become citizens, possessed of the 
elective franchise, would not sound policy, 
then, dictate such education of the colored 
population as would prepare them intelli­
gently to exercise the elective franchise, and 
as citizens to judge for themselves of the 
proper workings of our political system, and 
not he misled by the crafts and clamors of 
designing and unscrupulous politicians'? 
Education among the colored people of the 
State would have a beneficial effect in ren­
dering them more valuable in any position 
they may be destined to fill. It would doubt­
less render them, as a class, more virtuous 
and provident, and better members of the 
community in which they live.96

In the decade immediately following the ratifi­
cation of the Fourteenth Amendment the estab­
lished basic patterns of non-segregation or 
segregation in the Northern states continued with 
only slight changes. The changes in the school 
laws were, as a rule, directed not toward abolition 06

06 Md. Docs. 1870, H. Doc. pp. 14-15.

92

t



93

of segregation but rather toward strengthening 
and equalizing the school rights of the colored 
children. Some states, such as Michigan (in 
1867),97 and Connecticut (in 1868),98 declared by 
statute the right of all children to attend any 
public school in the district where they resided; 
others enacted penalties for school boards refusing 
admission of colored children into the common 
schools (e. g., Kansas, 1867).99

Among the states which had, prior to the ratifi­
cation of the Amendment, excluded Negroes from 
the public schools, Indiana admitted them on 
a segregated basis in 1869,* 1 with an amendment 
enacted in 18772 3 which gave them access to 
“ white”  schools where no separate schools were 
provided or where the colored school did not offer 
the higher grades available at “ white”  schools. 
Illinois, while not expressly providing for segrega­
tion in its school law of 1872,8 considered segrega­
tion an administrative matter in the discretion of 
the county and local school authorities,4 but in­
sisted that colored children be admitted to some 
school.5 In Chicago, as early as 1867 more satis­

97 Mich. Laws 1867, Act No. 34.
98 Conn. P. L. 1868, p. 206. Similar laws were already in 

force in Minnesota (1864) and Rhode Island (1866).
99 Kans. Laws 1867, ch. 125.
1 Ind. Laws 1869 (Spec. Sess.), p. 41.
2 Ind. Laws 1877, p. 124.
3 111. P . L. 1872, p. 700.
4 Report o f Superintendent o f Public Instruction, 1869-70. 

111. Doc. 1871, part 1, pp. 355-356.
5 111. P . L . 1874, p. 120.



94

factory experience with mixed schools than with 
segregated schools was reported.6 *

Kentucky did not provide for a “ common 
school system for the colored children”  until 1874/ 
making it unlawful for children of any race to 
attend a school assigned to the other. Maryland 
in 1872, and Delaware in 1875, provided for sepa­
rate public schools for Negroes.8

The contemporary discussions on segregated 
schools that are available do not show that the 
lawmakers and school administrators were aware 
of the relevance of the Fourteenth Amendment to 
the subject. The closest reference found is the 
remark of the Superintendent of Public Instruc­
tion of Indiana in 1868 that “ whatever distinc­
tions may have been previously made in 
the rights and privileges of citizens by our 
laws, they have been set aside by the emenda­
tions of our National Constitution and the 
‘ Civil Rights Bill.’ ”  9 The context makes it clear 
that he was referring to the total exclusion of 
Negroes from the public school system; he pleaded 
for Negro education, but being aware of the 
“ deeply-seated prejudice in the minds of many 
citizens,”  he suggested separate schools,10 follow­

6 Report o f Superintendent o f Public Instruction o f Indi­
ana, 1867-68, pp. 26-27, Ind. Doc. 1867-68, part 1.

1 Ky. Laws 1873-74, ch. 521.
8 Md. Laws 1872, c. 377, c. xviii (cf. Md. Laws 1868, c. 407, 

c. i x ) ; Del. Laws 1875, eh. 48.
9 Report o f Superintendent o f Public Instruction, 1867-68, 

p. 23. Ind. Doc. 1867-68.
10 Ibid. ; and see Report, 1865-66, Ind. Doc. 1867, Part 1, p. 

339.



95

ing the lead which Governor Morton had taken as 
early as 1865.11 The debates on the Indiana 
school law of 1869 dealt with the question whether 
the inferior treatment of Negroes in schools satis­
fied the state constitutional requirements of 
equality, but no reference was made to the Four­
teenth Amendment.12

In Illinois, the Superintendent of Public In­
struction insisted in strong terms on the Negroes’ 
right to an “ equal education”  as required by the 
state constitution of 1870 and implemented by the 
school law of 1872.13 In his view,14 15 the equality 
required by the state constitution was satisfied by 
either separate or mixed schools.16

The rulings of the Commissioner of Common 
Schools in Ohio, in 1869 and 1870, emphasized that 
colored youths have “ precisely the same right to 
school funds”  that white youths have; where their 
number is too small for a separate school, the 
school board has discretion either to admit them 
to the white school or to “ have them taught in

u Brevier Legislative Reports (1865), pp. 31-32.
1210 Brevier Legislative Reports (1869), pp. 193 et seq., 340 

et seq., 490 et seq.; 11 id. (1869 Extra Session), pp. 114 
et seq., 387 et seq.

13 Report of Superintendent of Public Instruction, 1871-72, 
111. Doc. 1873, vol. 2, p. 231 et seq.

14 Id., 1869-70, 111. Doc. 1871, p. 355, et seq.
15 Subsequently, the Superintendent adopted the view sus­

tained in State ex rel. Games v. McCann. 21 Ohio St. 198
(1872), that the Fourteenth Amendment permitted separate 
schools. Id., 1873-74, p. 416.



96

some other way” ; “ but they must be taught till 
their funds are exhausted.”  16

In the Constitutional Convention in Ohio in 
1873 and 1874 there was a brief discussion of school 
segregation.17 A  delegate unsuccessfully proposed 
a constitutional amendment providing for sepa­
rate schools for the two races, “ so as to give each 
the equal benefit of a common school education,”  
but with local option for mixed schools.18 He 
argued that education was a matter exclusively for 
the states and urged his amendment “ in order to 
have the Constitution of Ohio stand up for its 
own citizens against Federal usurpation * * * ”  
in the form of the Fourteenth Amendment.19

In a debate on segregation in 1867 in the Penn­
sylvania legislature, in connection with a law pro­
viding for homes for soldiers’ orphans,20 the spon­
sor of a proposal for nonsegregated homes empha­
sized the inequalities which resulted from segre­
gation in the common school system. No mention 
was made of the Fourteenth Amendment.

b. Negro Education in the South. In the 
Southern states there had been no public educa­
tion for Negroes, and in most states any education 
for Negroes was prohibited. In the immediate 
postwar period, schools were established by the 
Freedmen’s Bureau and benevolent associations,

1618th Annual Report, Ohio Doc. 1869, p. 885, et seq.
17 Ohio Constitutional Convention, 1873-74, Debates, vol. 2, 

part 2, p. 2238, et seq.
18 Id., pp. 2238-2839.
19 Id., pp. 2240-2241.
20 Pa. Legislative Record 1867, Appendix, p. CCCXLII.



97

but even for white children the public school sys­
tems had been disrupted by the war. (See pp. 8-9, 
supra.)

In the postwar period, education of the Negroes 
was regarded hy the white leaders as a necessity 
arising out of emancipation, the changed status of 
the Negroes, and their obtaining the suffrage in 
the new state constitutions. Governor Smith of 
Alabama in 1868, for example, urged a common 
school system with provision for education for the 
colored people on the ground that

With enlarged freedom and full oppor­
tunities for individual development should 
come the most ample facilities for obtain­
ing that information that makes a man the 
peer of his fellows, and enables him to 
protect his own interests, at the same time 
that he is better fitted to discharge his du­
ties as a citizen.21

Similar recommendations were made by the 
Governors of Arkansas,22 Georgia,23 Louisiana,24 
and North Carolina.25

During the years in which the Fourteenth 
Amendment was before the states for ratification, 
the question of separate or mixed schools was ex­
tremely controversial in the Southern states. In

“ Alabama Senate Journal 1868, p. 14.
22Arkansas House Journal 1868, p. 296.
23 Georgia House Journal 1870, p. 416.
“ Louisiana Legislative Documents 1870, Message o f the 

Governor, p. 7.
25 North Carolina Public Documents 1867-68, Doc. No. 2, 

Sess. 1868, pp. 5-6.



98

most of the Reconstruction constitutional conven­
tions, proposals were made to require or to pro­
hibit separate schools.26 27 In seven the constitution 
as adopted contained no specific provision on this 
point. In Louisiana 2T and South Carolina 28 the 
constitution required mixed schools, and in Flor­
ida 29 the requirement was implied. Rone required 
separate schools.30

The constitutions were submitted to Congress 
for approval in accordance with the requirement 
of the Reconstruction Act that they be “ in con­
formity with the Constitution of the United 
States in all respects.”  31 (See pp. 72-76, supra.) 
In addition to the provisions on education, these 
constitutions contained general provisions guar­

26 Alabama Convention Journal, pp. 153, 237-8; Arkansas 
Convention Debates and Proceedings, p. 645, et seq.; Georgia 
Convention Journal, p. 151; Louisiana Convention Jour- 
nal, pp. 60-61, 94, 200-2, 268-70, 277; Mississippi Con­
vention Journal, pp. 316, 318, 479-80; South Carolina Con­
vention Proceedings, pp. 71, 88, 100, 685-709, 889-894, 899- 
901; Texas Convention Journal, I, pp. 896, 898, 912; V ir­
ginia Convention Journal, pp. 67, 299, 308, 333, 335, 336, 
339, 340.

27 Louisiana Constitution of 1868, Arts. 135, 136.
28 South Carolina Constitution o f 1868, Art. X , sec. 10.
29 Florida Constitution o f 1868, Art, IX , sec. 1.
30 The debates in Arkansas and South Carolina contain ar­

guments on the policy o f having mixed or separate schools, 
but do not show any specific reference to the applicability 
or inapplicability o f the Fourteenth Amendment to the 
question, even though the members o f the conventions were 
aware of the impact o f the Amendment on other issues. 
The debates in the other conventions were not reported, ex­
cept for the early stages of the Virginia convention.

3114 Stat. 428, sec. 5.



99

anteeing “  equal civil and political rights and 
public privileges,” 32 or “ the same”  rights 
and privileges,33 or prohibiting “ distinctions”  
on account of race or color.34 There were 
instances of a prohibition on discrimination 
in places of business or public resort,35 * and a pro­
hibition on distinctions in public institutions.8® 
In no instance did the constitution submitted to 
Congress and approved by it state that inequality 
or segregation was permitted.

The available records in these states do not, 
however, show an awareness that the Fourteenth 
Amendment might be relevant in determining the 
basis on which public education was furnished. 
The recommendations made concerning education 
to the same Reconstruction legislatures which 
ratified the Amendment contained no reference to 
it. Segregation was not stated to be permitted 
by the Amendment, nor was equality in education 
for Negroes stated to be required by the Amend­
ment.

Except for Arkansas and Florida, none of the 
ten Southern states had a statutory provision for 
a segregated public school system at the time it 
ratified the Fourteenth Amendment.37 In five

82 Alabama Constitution o f 1867, Art. I, sec. 2.
^Louisiana Constitution o f 1868, Art. 2.

South Carolina Constitution of 1868, A r t .^ ,  sec.
35 Louisiana Constitution o f 1868, Art. 13.
86 Mississippi Constitution, 1868, Art. I, sec. 21.
37 An Arkansas statute in 1867 required Negroes to at­

tend separate schools. (Arkansas Laws 1866-67, No. 35, 
Sec. 5, p. 100.) The new state constitution adopted in



of these ten states, school segregation was estab­
lished by laws enacted within a year after rati­
fication of the Fourteenth Amendment.38 In Louisi­
ana, the city of New Orleans succeeded in maintain­
ing separate schools despite the state constitutional 
prohibition.39 Again, however, no specific refer­
ences have been found to show that the advocates of 
separate schools in these states were aware of the 
relevance of the Fourteenth Amendment to the 
question.

e. State judicial decisions on Negro education. 
During the period from 1868 to 1882, the school 
rights of colored children were litigated in state 
courts in a number of cases. These cases may be 
divided into three distinct groups, so far as the 
relevance of the Fourteenth Amendment is con­
cerned.
April 1868, shortly before the legislature ratified the 
Amendment, provided generally that free schools for “ all 
persons” should be maintained. Some members of the 
constitutional convention regarded this as requiring mixed 
schools. (Arkansas Convention Debates and Proceedings, 
pp. 660, 666, 672.) In Florida, separate schools for Ne­
groes were established under an 1866 statute. (Florida 
Laws 1865, No. 12, ch. 1475.) The new state constitution 
adopted in 1868, before the Amendment was ratified, pro­
vided for “ the education of all the children residing within 
its borders, without distinction or preference” . (Constitu­
tion of 1868, Art. IX , sec. 1.)

38 Alabama Laws 1868, p. 148 (Act o f the Board of Edu­
cation) ; Arkansas Laws 1868, No. 52, Sec. 107, p. 163; 
Georgia Laws 1870, No. 53, Sec. 32; North Carolina Laws 
1868-69, ch. 184, Sec. 50, p. 471; Virginia Laws 1869-70, 
ch. 259, Sec. 47.

39 Louisiana House Debates 1869, pp. 209-10, 217-20, 
248-7.



101

Some cases were argued and decided solely on 
the basis of state constitutional and statutory pro­
visions. Thus, the Supreme Court of Iowa held in
1868 that the equality of school rights as guar­
anteed in the state constitution (“ education of 
all the youths of the State” ) and as implemented 
by the school law denied school authorities any 
discretion to classify school children according to 
race or color. Clark v. The Board of Directors, 
etc., 24 Iowa 267. Accord: Smith v. The Di­
rectors, etc., 40 Iowa 518, and Dove v. The Inde­
pendent School District, 41 Iowa 689, both decided 
in 1875. Similarly, in Illinois the state supreme 
court held in 1874 that school directors had no 
power under the state constitution and school 
law to make racial distinctions so as to deprive 
colored children of the benefits which white chil­
dren received in the public schools. Chase v. 
Stephenson, 71 111. 383. A  New York court in
1869 sustained the validity of a provision in a 
city charter requiring separate schools, on the 
ground that under state law there was no “ right”  
to education. No reference was made to the 
Fourteenth Amendment. Dallas v. Fosdick, 40 
How. Pr. Rep. 249 (Sup. Ct. 1869). (See pp. 
88-89, supra-.)

In other cases, although the Fourteenth Amend­
ment was mentioned or considered, the decision 
was placed upon the narrower ground of state 
constitutional or statutory law. Thus, a Penn­
sylvania court in 1873 upheld the right of colored

280815— 53------ s



1 0 2

children to be admitted to the white school in a 
district where no colored school was established. 
Commonwealth ex rel. Brown v. Williamson, 10 
Phila. 490. In that case the judge applied what 
he regarded as the clear mandate of the school 
law, remarking that he failed to see that any 
right arising out of the Fourteenth Amendment 
was involved. The Supreme Court of Illinois, 
in People ex rel. John Congress v. The Board 
of Education, etc., 101 111. 308 (1882), held that 
the state constitution and school law did not 
permit a school board to assign colored pupils to 
a school outside the district of their residence. 
It did not therefore reach the question of the appli­
cability of the Amendment. The Supreme Court 
of Kansas, in deciding that a school board had no 
power under state law to establish segregated 
schools, left open the question whether state 
legislation authorizing segregated schools would 
violate the Fourteenth Amendment, pointing out 
that this question could be finally determined only 
by the Supreme Court of the United States. 
Board of Education v. Tinnon, 26 Kans. 1 (1881). 
See also State ex rel. Stoutmeyer v. Duffy, 7 Nev. 
342 (1872), which held that the equality of rights 
guaranteed by the state constitution was violated 
by the exclusion of Negroes from the public 
schools, but that the state statute, while “ prob­
ably”  opposed to the spirit of the Fourteenth 
Amendment, did not violate its letter.



103

Finally, there is a group of cases in which the 
Fourteenth Amendment was the main issue and 
the principal ground of decision. The earliest 
of these is State ex rel. Games v. McCann, 21 
Ohio St. 198 (Dec. Term 1871). The Supreme 
Court of Ohio held that the Amendment had no 
bearing on such exclusively domestic matters as 
school legislation, and that if  it did, the classification 
of pupils according to color was not contrary to the 
Amendment, since all children were provided equal 
facilities. The McCann case became a leading- 
precedent on the question of the validity of school 
segregation.40 It was followed in New York (Peo­
ple v. Easton, 13 Abbott’s Pr. R. (N. S.) 159, Sup. 
Ct., 1872) and Indiana ( Cory v. Carter, 48 Ind. 
327,1874), although in the latter case the facilities 
for educating colored children were plainly un­
equal . In California, the Supreme Court reached 
the same conclusion in Ward v. Flood, 48 Cal. 
36 (1874), relying exclusively upon Roberts v. City

40 In the debates on the bill which became the Civil Eights 
Act of 1875, the minority Senators who unsuccessfully op­
posed a provision prohibiting school segregation expressly- 
relied upon the McCann case, as well as Roberts v. City of 
Boston, 5 Cush. (Mass.) 198, decided in 1850. See Congres­
sional Globe, 42nd Cong., 2nd Sess., pp. 3257, 3261. Senator 
Frelinghuysen, in charge of the bill, distinguished both the 
McCann case and Clark v. Board of Directors, 24 Iowa 267, 
on the ground that they were based on state constitutional 
and statutory provisions and therefore “ afford no prece­
dent for the construction o f this bill when enacted. The 
language of this bill secures full and equal privileges in the 
schools, subject to laws which do not discriminate as to color.” 
2 Cong. Eec. 3452. And see pp. 80-82, supra.



104

of Boston, 5 Cush. (Mass.) 198, decided eighteen 
years before the Amendment was adopted. On 
the other hand, a lower court in Pennsylvania 
held that classification of school children accord­
ing to race or color violated the Fourteenth 
Amendment. Commonwealth v. Davis, 10 Weekly 
Notes 156 (1881).

These various groups of cases, taken in their 
entirety, thus fail to evidence any general and 
definite contemporaneous judicial construction of 
the Amendment as applied to school segregation.

d. Significance of the contemporaneous state 
laws providing for school segregation. The fact 
that a number of states had segregated school 
systems when the Fourteenth Amendment was 
adopted, or established them shortly thereafter, 
does not necessarily reflect a contemporaneous 
understanding that the Amendment permitted 
“ separate but equal”  schools for colored chil­
dren. It is argued that this must have been the 
general understanding at the time, for otherwise 
these states could not consistently have ratified 
the Amendment.

The difficulty with this argument, however, is 
that the historical facts on which it is based do 
not support the conclusions which are drawn from 
them. The inquiry here must be, what was the 
state of mind—so far as their understanding 
of the scope and application of the Fourteenth 
Amendment is concerned—of those responsible 
for the simultaneous ratification of the Amend-



105

merit and enactment or continuation of school 
segregation legislation? As has been shown 
(supra, pp. 57-65), virtually no evidence is to be 
found in the available records of the ratification 
proceedings indicating that the question of school 
segregation was considered in connection with 
the debates on the Amendment itself. Moreover, 
as has also been shown (supra, pp. 86-100), there is 
little evidence that the state legislators and other 
officials responsible for the school laws considered 
the relevance of the Fourteenth Amendment and 
deliberately concluded that these laws were not 
in conflict with the Amendment.

This absence of evidence showing an awareness 
that the Fourteenth Amendment might have some 
relation to school segregation is consistent with 
at least five different views which might. con­
ceivably have been held on this subject at that 
time: (1) that the Amendment had no applica­
tion whatsoever to public education furnished 
by a state; (2) that the Amendment did apply 
to public education, but only to the extent that 
if a state provided education for white children, 
it also had to provide some education (not neces­
sarily equal) for colored children; (3) that the 
Amendment permitted a state to have separate 
schools for colored children, provided the facil­
ities afforded them were substantially equal to 
the schools for white children; (4) that the 
Amendment was essentially a grant of power to 
Congress, and unless or until Congress should



106

prohibit it from doing so, a state could make 
such provision for the education of its children 
as it deemed proper; or (5) that, while the 
Amendment required that colored children be 
treated equally with respect to public education, 
that requirement was then satisfied, in view of 
the special circumstances existing in the period 
following emancipation of the slaves, by establish­
ing separate schools for colored children.

It is submitted that, of these various possible 
conclusions which might be drawn, the one least 
supported by the available historical materials is 
that which finds in them a contemporaneous un­
derstanding that the Amendment permitted the 
states to establish separate schools for white and 
colored children, so long as the facilities fur­
nished were substantially equal. We believe that, 
while each of these various possible understand­
ings can summon some support, none can be dem­
onstrated to be valid to the exclusion of the 
others. This question is one as to which histo­
rians can rely only on conjecture and specula­
tion rather than on demonstrable fact. In the 
circumstances, such inferences as may be drawn 
from the available data are too tenuous and in­
conclusive to furnish a reliable basis for present- 
day judicial interpretation of the Amendment.

Because public education was regarded as a 
privilege conferred by the state, rather than as a 
right due the citizen, and was supported wholly 
by state taxation, it may well have been considered



107

that public schools were wholly within the do­
mestic jurisdiction and discretionary control of each 
state and therefore unaffected by the Fourteenth 
Amendment. This possibility is given weight by 
early decisions of the state courts, e. g., State ex 
rel. Games v. McCann, 21 Ohio St. 198, 207-208 
(Dec. Term, 1871) ; Ward v. Flood, 48 Cal. 36 
(1874) ; Cory v. Carter, 48 Ind. 327, 360 (1874) ; 
cf. Camming v. Board of Education, 175 U. S. 
528, 545 (1899), and is perhaps the con­
clusion which most logically explains the si­
lence of the available contemporary histori­
cal materials on the question of the relation 
of the Fourteenth Amendment to school segrega­
tion. As a valid interpretation of the Amend­
ment, however, it has now been emphatically re­
jected by this Court’s repeated holdings that 
although it is a “ privilege,” public education, if 
granted to some citizens, must be extended to all 
on a basis of equality of right. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Sipuel v. Board 
of Regents, 332 U. S. 631; Sweatt v. Painter, 339 
U. S. 629.

One paramount difficulty with the “ separate 
but equal” hypothesis as to the original under­
standing of the Amendment is its failure to 
account for the fact that colored children were 
educated in schools which were not equal even 
in a physical sense. Patent inequalities were 
often sanctioned by requiring that schools be 
established for white children while colored 
schools were merely authorized or permitted, or



108

were provided only when a given number of col­
ored children lived: in the school district. Even 
where the laws did not discriminate, colored 
schools were still largely inferior when compared 
with white schools on a physical or pedagogical 
basis. This fact is more consistent with an under­
stand in g that the Amendment was satisfied if 
some provision, however unequal, wTas made for 
colored children than with a ‘ 4separate but equal” 
understanding. But the former conception of the 
Amendment, if it existed, has been unequivocally 
rejected by this Court. Missouri ex rel. Gaines 
v. Canada, supra; Sipuel v. Board of Regents, 
supra; Sweatt v. Painter, supra.

In 1868 public schools had been hardly begun in 
many states and were still in their infancy. School 
attendance was, as a general matter, not compul­
sory. The Negroes had just been released from 
bondage and were generally illiterate, poor, and re­
tarded socially and culturally. To educate them in 
the same classes and schools as white children may 
have been regarded as entirely impracticable. 
It is possible that state legislatures—while recog­
nizing in the Fourteenth Amendment a clear man­
date of equality—may have considered separate 
schools for colored children as a temporary practi­
cal expedient permitted by the Amendment. Many 
proponents of Negro education regarded separate 
schools as a more effective means of extending the 
benefits of the public school system to the colored 
people; for, since school attendance was generally



109

not compulsory, fear of discrimination might well 
have deterred Negro children from attending 
existing “ white”  schools in many areas.41

It is not necessary to assume that these state 
legislatures considered their segregated schools as 
completely free from possible attack under the 
Amendment, nor does it necessarily follow that 
they were deliberately flouting its prohibitions. It 
was widely thought that the Amendment was pri­
marily intended to remove constitutional doubts 
from the Civil Rights Act of 1866 and to give Con­
gress the power to redress inequalities and discrimi­
nations imposed on the Negroes in the states. This 
is echoed in this Court’s opinion in Ex Parte Vir­
ginia, 100 U. S. 339, 345, which hinted that the fed­
eral judiciary might have no power to enforce the 
Amendment except where expressly authorized by 
Congress, and also in Senator Sumner’s attempts 
until his death to persuade Congress to use its power 
under Section 5 to prohibit separate schools. 
{Supra, pp. 76-86.) It is not unlikely that state 
legislators may have felt themselves free to exercise 
their judgment as to the desirability of school

41 “ * * * Previously, such [colored] children were re­
ceived into any public school at which they presented them­
selves; but the prevailing prejudice against them was so 
great that many preferred rather to remain away from 
school altogether than to face it. The provision for separate 
schools was practically a boon to the colored people, although 
it probably grew out o f an indisposition to permit their chil­
dren to attend school with white children.”  J. P. Wicker- 
sham, A History of Education in Pennsylvania (1886), 
p. 506.



110

segregation until Congress should act. It may also 
have been thought, although not articulated, that 
the constitutional issue would ultimately he re­
solved by this Court, and that the states were not 
bound to observe any constitutional prohibitions 
against school segregation unless and until this 
Court should declare them.

All of these hypotheses are possible. None can 
be demonstrated to be true. We do not contend 
for the validity of any one above the others. We 
conclude only that the historical facts, as distin­
guished from assumptions, are too equivocal and 
inconclusive to furnish a solid basis upon which 
this Court can determine the application of the 
Amendment to the question of school segregation 
as it exists today, when school attendance is com­
pulsory and when there are no considerations of 
an educational character which warrant separation 
of children of different races in public schools.

In striking down various forms of state legisla­
tion as unconstitutional racial discriminations, this 
Court has not been deterred by the existence of 
such legislation on the statute books during the 
period when the Fourteenth Amendment was rati­
fied. Thus, in 1879, the Court held that state laws 
which excluded Negroes from juries denied them 
the equal protection of the laws. Strauder v. 
West Virginia, 100 U. S. 303. Such statutes were 
to be found in a number of states. E. g., West 
Virginia (Acts of 1872-1873, p. 102, reenacting 
chapter 116 of the 1870 Code), Kentucky (Gen. St. 
1873 (Bullock & Johnson), ch. 62, Art. I l l ,  § 2),



I l l

Missouri (Wagner’s Mo. Stat. 1870 (2d ed.), eh. 
80, § 2), and Oregon (Gen. Laws of Oregon, 1843- 
1872, Civil Code, § 918). The Court in the 
Strauder case observed (p. 306) that at the time 
the Fourteenth Amendment was incorporated into 
the Constitution “ it required little knowledge of 
human nature to anticipate that those who had 
long been regarded as an inferior and subject race 
would, when suddenly raised to the rank of citi­
zenship, be looked upon with jealousy and positive 
dislike, and that State laws might be enacted or 
enforced to perpetuate the distinctions that had 
before existed. Discriminations against them had 
been habitual. It was well known that in some 
States laws making such discriminations then 
existed, and others might well he expected.”  
[Italics added.]

In the racial restrictive covenant cases (Shelley 
v. Kraemer, 334 U. S. 1; Hurd v. Hodge, 334 IT. S. 
24), there was a background of unbroken judicial 
enforcement of such covenants in nineteen states 
and the District of Columbia extending over a 
period of 33 years (No. 72, 1947 Term, Brief for 
the United States, pp. 40-45). In overturning 
the rule applied by these decisions, no reference 
was made either to their number, their uniformity, 
or their age. And when the Court held in Nixon 
v. Herndon, 273 U. S. 536, decided in 1927, that a 
state statute excluding Negroes from participation 
in primary elections was a “ direct and obvious in­
fringement”  of the Fourteenth Amendment, the



1 1 2

prevailing view of the state courts, going back as 
far as 1887 ( Commonwealth v. Helm, 9 Ky. L. 
Rep. 532), was that a primary election is “ purely 
a legislative creation”  as to which “ the legislature 
was subjected to no constitutional inhibition”  
{State ex rel. Hatfield v. Carrington, 194 Iowa 
785, 786).42 Mr. Justice Holmes, speaking for the 
Court in Nixon v. Herndon, disposed of the matter 
in a few words (p. 541) : “ States may do a good 
deal of classifying that it is difficult to believe 
rational, but there are limits, and it is too clear for 
extended argument that color cannot be made the 
basis of a statutory classification affecting the 
right set up in this case. ’ ’

G. SUMMARY AND CONCLUSIONS

( H

The Congressional history of the Fourteenth 
Amendment shows that the Amendment was pro­
posed and debated as part of a broad and con­
tinuing program to establish full freedom and 
legal equality for Negroes. Many in the Con­
gress which considered the Thirteenth Amend­
ment understood it to abolish not only slavery but 
also its concomitant legal discriminations. This 
understanding rested on a belief that that Amend­
ment had made the Negro an indistinguishable 
part of the population and hence entitled to the 
same rights and privileges under the laws as all 
others. The enactment of the Black Codes in

42 The cases are collected in Mangum, The Legal Status of 
the Negro (1940) pp. 407-409.



113

the Southern states made it obvious, however, 
that additional protection by the national gov­
ernment was required.

The civil rights legislation enacted by the 39th 
Congress was designed to strike down distinc­
tions based on race or color. From the debates 
on that legislation, however, there emerged the 
view that the Thirteenth Amendment alone did 
not afford a sufficient constitutional basis for such 
action, and that a further amendment was nec­
essary. In the same debates there was also crys­
tallized the view that only explicit constitutional 
embodiment of the principle of equality before 
the law could protect that principle from change 
by some future Congress.

The attempt in the 39th Congress, through the 
Bingham “ equal rights”  amendment, to provide 
a direct constitutional basis for national legisla­
tion guaranteeing equal treatment under the law 
failed because of the belief that it left the mat­
ter open to future congressional change and de­
stroyed the balance between federal and state 
power. The Fourteenth Amendment was pro­
posed to remedy these deficiencies. Section 1 
of that Amendment, to both its proponents and 
opponents, was an express constitutional recog­
nition of the doctrine of “ absolute and perfect”  
equality under the law—the same doctrine which 
had underlain the Thirteenth Amendment, the 
civil rights legislation, and Bingham’s unsuccess­
ful “ equal rights”  amendment.



114

Neither the majority nor the minority in the 
39th Congress evidenced any substantial disagree­
ment as to the broad scope of Section 1 of the 
Amendment. The majority repeatedly affirmed 
that it would firmly secure the principle that the 
“ law which operates on one man shall operate 
equally upon all” and would prohibit all legisa- 
tion by the states drawn on the basis of race and 
color. The opposition similarly understood its 
broad purpose; it was on that basis that they 
voiced their objections.

While the debates reflect a clear understanding 
as to the breadth of the principle of equality 
under law embodied in the Fourteenth Amend­
ment, neither its proponents nor its opponents 
found it necessary or appropriate to catalog ex­
haustively the specific application of its general 
principle. Only a few such examples were given 
during the debates on the Amendment itself. It 
is noteworthy that one of the majority spokesmen, 
at a time when the majority was proceeding 
under the discipline of party caucus, illustrated the 
racial discriminations which the Amendment 
would reach by reference to a state law discrim­
inating against Negroes in public schools. He did 
not, however, make specific mention of the system 
of racial segregation which the state law required.

In the debates on the civil rights legislation, 
which are an integral part of the immediate back­
ground of the Fourteenth Amendment, the minor­
ity expressed the view that existing state systems 
of racially-segregated public schools would be



115

stricken down by the broad principle of equal 
treatment under the law. This view was not dis­
puted by the majority. A  like objection was 
voiced to Bingham’s “ equal rights”  amendment 
which sought to embody the same general prin­
ciple. Again, the majority did not take issue with 
this understanding of its scope. It is also worthy 
of note that not only were Bingham’s proposal 
and Section 1 of the Fourteenth Amendment alike 
in their general purpose; they were also similar 
in language.

In sum, while the legislative history does not con­
clusively establish that the Congress which pro­
posed the Fourteenth Amendment specifically un­
derstood that it would abolish racial segregation in 
the public schools, there is ample evidence that it 
did understand that the Amendment established the 
broad constitutional principle of full and complete 
equality of all persons under the law, and that it 
forbade all legal distinctions based on race or color. 
Concerned as they were with securing to the Negro 
freedmen these fundamental rights of liberty and 
equality, the members of Congress did not pause to 
enumerate in detail all the specific applications of 
the basic principle which the Amendment incorpo­
rated into the Constitution. There is some evi­
dence that this broad principle was understood to 
apply to racial discriminations in education, and 
that it might have the additional effect of invalidat­
ing state laws providing for racial segregation in 
the public schools.



116

(*)
There is a paucity of available evidence as to the 

understanding of the state legislatures which rati­
fied the Amendment, in part because of the almost 
complete absence of records of debates, in part per­
haps because their function was to accept or reject 
a proposal rather than to draft one.

In the states most attention was given to the po­
litical aspects of the Republican “ plan of recon­
struction,”  which received popular approval in the 
elections of 1866. It was frequently stated that the 
Amendment guaranteed to the Negroes full rights 
of equality as citizens, but the scope and content 
of those rights were not detailed. The opponents of 
the Amendment objected to the first section on the 
ground that it, together with the fifth section, ex­
panded the powers of the Federal Government at 
the expense of the rights of the states. There 
were almost no references to schools during con­
sideration of the amendment.

At the time of consideration and ratification of 
the Fourteenth Amendment, some of the North­
ern states had and continued segregated schools 
and some of the Southern states, in providing 
for the first time for public education for Ne­
groes, established separate schools. In the histor­
ical context in which these actions were taken, 
however, they do not evidence an understanding 
as to the reach of the Fourteenth Amendment. 
The inferences to be drawn from these actions 
necessarily rest on conjecture and speculation. 
The scanty evidence available suggests that the



117

legislatures were probably unaware that the 
Amendment was relevant to education, even to 
the extent of requiring equal, though separate, 
schools. Proponents of education for Negroes 
based their arguments on grounds other than the 
Fourteenth Amendment, and made no reference 
to it.

In sum, the available materials are too sparse, 
and the specific references to education too few, 
to justify any definite conclusion that the state 
legislatures which ratified the Fourteenth Amend­
ment understood either that it permitted or that 
it prohibited separate schools.

\S )

There is no direct evidence at the time of the 
adoption of the Amendment that its framers un­
derstood specifically that future Congresses might,, 
in the exercise of their power under section a, 
abolish segregation in the public schools. They 
clearly understood, however, that Congress would 
have the power to enforce the broad guarantees of 
the Amendment, and the Amendment was delib­
erately framed so as to assure that the rights 
protected by section 1 could not be withdrawn or 
restricted by future Congresses.

Subsequently, in the debates on the Civil Rights 
Act of 1875, some of the framers expressed an; 
understanding that segregated schools were con­
trary to the Amendment and that Congress could 
and should abolish them. While an express prohi­
bition against segregated schools was not con-

280315— 53----------- 9'



118

tamed in the Act in its final form, its omission 
did not spring from doubt of the power of Con­
gress to enact such a prohibition; other types of 
segregation were barred by the Act. Since section 
5 of the Fourteenth Amendment authorizes Con­
gress only to enforce the provisions o f the Amend­
ment, the apparently prevalent understanding in 
Congress that it could prohibit school segregation 
is evidence of a tacit assumption that segregation 
in schools was in conflict with the broad principles 
declared in section 1.

No specific references have been found in the 
debates on the Fourteenth Amendment to show 
any expressed contemporary understanding of its 
framers as to the judicial power, in light of future 
conditions, to construe the Amendment as abolish­
ing school segregation of its own force. Some 
evidence of such an understanding is, however, 
found in the debates on the Civil Rights Act of 
1875.

(4)
In the Slaughter-House Gases, 16 Wall. 36, de­

cided on April 14, 1873, less than five years after 
the Fourteenth Amendment was adopted, this 
Court was called upon for the first time to con­
strue that Amendment. Six years later, in Strun­
der v. West Virginia, 100 U. S. 303, the Court 
first considered the application of the Amendment 
to a state law involving a racial discrimination. 
In each instance the opinion of the Court dwelt 
at length upon the history and purposes of the



119

Reconstruction Amendments. The studies which 
have been made in preparing* this brief have only 
served to confirm the accuracy of the contempo­
rary historical observations made in the Slaughter- 
House and Strauder opinions by the members of 
this Court who themselves had lived during the 
period when the Amendment was adopted. The 
great events of the Reconstruction period were 
still fresh in their minds, and required for them 
no elaborate investigation into recondite historical 
materials.

Mr. Justice Miller’s opinion for the Court in 
the Slaughter-House Cases noted at the outset 
(pp. 67-68): “ The most cursory glance at these 
articles [the Thirteenth, Fourteenth, and F if­
teenth Amendments] discloses a unity of purpose, 
when taken in connection with the history of the 
times, which cannot fail to have an important 
bearing on any question of doubt concerning their 
true meaning. * * * Fortunately that history is 
fresh within the memory of us all, and its leading 
features, as they bear upon the matter before us, 
free from doubt.”  After referring to the aboli­
tion of slavery by the Thirteenth Amendment, the 
Court pointed out (pp. 70-71) :

The process of restoring to their proper 
relations with the Federal government and 
with the other States those which had sided 
with the rebellion, undertaken under the 
proclamation of President Johnson in 1865, 
and before the assembling of Congress, de­
veloped the fact that, notwithstanding the



1 2 0

formal recognition by those States of the 
abolition of slavery, the condition of the 
slave race would, without further protec­
tion of the Federal government, be almost 
as bad as it was before. Among the first 
acts of legislation adopted by several of the 
States in the legislative bodies which 
claimed to be in their normal relations with 
the Federal government, were laws which 
imposed upon the colored race onerous disa­
bilities and burdens, and curtailed their 
rights in the pursuit of life, liberty, and 
property to such an extent that their free­
dom was of little value, while they had lost 
the protection which they had received from 
their former owners from motives both of 
interest and humanity.

* # * * *
These circumstances, whatever of false­

hood or misconception may have been min­
gled with their presentation, forced upon the 
statesmen who had conducted the Federal 
government in safety through the crisis of 
the rebellion, and who supposed that by the 
thirteenth article of amendment they had se­
cured the result of their labors, the convic­
tion that something more was necessary in 
the way of constitutional protection to the 
unfortunate race who had suffered so much. 
They accordingly passed through Congress 
the proposition for the fourteenth amend­
ment, and they declined to treat as restored 
to their full participation in the government 
of the Union the States which had been in 
insurrection, until they ratified that article 
by a formal vote o f their legislative bodies.



12 1

The Court concluded its review of the history of 
the Amendments as follows (pp. 71-72) :

We repeat, then, in the light of this re­
capitulation of events, almost too recent to 
be called history, but which are familiar to 
us all; and on the most casual examination 
of the language of these amendments, no one 
can fail to be impressed with the one pervad­
ing purpose found in them all, lying at the 
foundation of each, and without which none 
of them would have been even suggested; we 
mean the freedom of the slave race, the secu­
rity and firm establishment of that freedom, 
and the protection of the newly-made free­
man and citizen from the oppressions of 
those who had formerly exercised unlimited 
dominion over him. It is true that only the 
fifteenth amendment, in terms, mentions the 
negro by speaking of his color and his slav­
ery, But it is just as true that each of the 
other articles was addressed to the griev­
ances of that race, and designed to remedy 
them as the fifteenth.

We do not say that no one else but the 
negro can share in this protection. * * * 
But what we do say, and what we wish to 
be understood is, that in any fair and just 
construction of any section or phrase of these 
amendments, it is necessary to look to the 
purpose which we have said was the pervad­
ing spirit of them all, the evil which they 
were designed to remedy, and the process of 
continued addition to the Constitution, until 
that purpose was supposed to be aceom-



1 2 2

plished, as far as constitutional law can 
accomplish it.

In Strauder v. W est Virginia, 100 U. S. 303, 
Mr. Justice Strong’s opinion for the Court con­
tains a similar exposition of the history and 
objectives of the Fourteenth Amendment (pp. 
306-308):

This is one of a series of constitutional 
provisions having a common purpose; 
namely, securing to a race recently emanci­
pated, a race that through many genera­
tions had been held in slavery, all the civil 
rights that the superior race enjoy. The 
true spirit and meaning of the amendments, 
as we said in the Slaughter-House Gases 
(16 Wall. 36), cannot be understood with­
out keeping in view the history of the times 
when they were adopted, and the general 
objects they plainly sought to accomplish. 
At the time when they were incorporated 
into the Constitution, it required little 
knowledge of human nature to anticipate 
that those who had long been regarded as 
an inferior and subject race would, when 
suddenly raised to the rank of citizenship, 
be looked upon with jealousy and positive 
dislike, and that State laws might be 
enacted or enforced to perpetuate the dis­
tinctions that had before existed. Dis­
criminations against them had been 
habitual. It was well known that in some 
States laws making such discriminations 
then existed, and others might well be ex­
pected. The colored race, as a race, was



123

abject and ignorant, and in that condition 
was unfitted to command the respect of 
those who had superior intelligence. Their 
training had left them mere children, and 
as such they needed the protection which 
a wise government extends to those who 
are unable to protect themselves. They 
especially needed protection against un­
friendly action in the States where they 
were resident. It was in view of these con­
siderations the Fourteenth Amendment was 
framed and adopted. It was designed to 
assure to the colored race the enjoyment of 
all the civil rights that under the law are 
enjoyed by white persons, and to give to 
that race the protection of the general 
government, in that enjoyment, whenever 
it should be denied by the States. * * *

I f  this is the spirit and meaning of the 
amendment, whether it means more or not, 
it is to be construed liberally, to carry out 
the purposes of its framers. * * * It or­
dains that no State shall deprive any per­
son of life, liberty, or property, without due 
process of law, or deny to any person with­
in its jurisdiction the equal protection of 
the laws. What is this but declaring that 
the law in the States shall be the same for 
the black as for the white; that all persons, 
whether colored or white, shall stand equal 
before the laws of the States, and, in regard 
to the colored race, for whose protection 
the amendment was primarily designed, 
that no discrimination shall be made 
against them by law because of their color?



124

The words of the amendment, it is true, are 
prohibitory, but they contain a necessary 
implication of a positive immunity, or right, 
most valuable to the colored race,—the 
right to exemption from unfriendly legis­
lation against them distinctively as col­
ored,—exemption from legal discrimina­
tions, implying inferiority in civil society, 
lessening the security of their enjoyment of 
the rights which others enjoy, and discrimi­
nations which are steps towards reducing 
them to the condition of a subject race.

* * * The very fact that colored people 
are singled out and expressly denied by a 
statute all right to participate in the ad­
ministration of the law, as jurors, because 
of their color, though they are citizens, and 
may be in other respects fully qualified, is 
practically a brand upon them, aflixed by 
the law, an assertion of their inferiority, 
and a stimulant to that race prejudice 
which is an impediment to securing to indi­
viduals of the race that equal justice which 
the law aims to secure to all others.

Decided the same day as the Strauder case were 
Virginia v. Rives, 100 U. S. 313, and Ex parte 
Virginia, 100 U. S. 339, which also involved 
questions under the Fourteenth Amendment as to 
exclusion of Negroes from juries. In Virginia v. 
Rives, the Court, referring to the civil rights 
statutes (now 8 U. S. C. 41 and 42) enacted by 
Congress pursuant to the Fourteenth Amendment, 
said (p. 318) : “ The plain object of these statutes, 
as of the Constitution which authorized them, was



125

to place the colored race, in respect of civil rights, 
upon a level with whites. They made the rights 
and responsibilities, civil and criminal, of the two 
races exactly the same.”

Similarly, in Ex parte Virginia, the Court 
stated (pp. 344—345): “ One great purpose of these 
[Thirteenth and Fourteenth] amendments was 
to raise the colored race from that condition of 
inferiority and servitude in which most of them 
had previously stood, into perfect equality of civil 
rights with all other persons within the jurisdic­
tion of the States. They were intended to take 
away all possibility of oppression by law because 
of race or color.”

Elsewhere in this brief (see pp. 139-141, infra) 
we have quoted at length from the opinions of 
this Court, extending over a period of more than 
three-quarters of a century, which show a con­
sistent recognition that the Fourteenth Amend­
ment is to be construed liberally so as to carry 
out the great and pervading purpose of its 
framers to establish complete equality for Negroes 
in the enjoyment of fundamental human rights 
and to secure those rights against enforcement of 
legal distinctions based on race or color.

(5)
As has been shown, no conclusive evidence of a 

specific understanding as to the effect of the 
Fourteenth Amendment on school segregation has 
been found in its legislative history. But this 
Court has neither declared nor applied any canon



126

of constitutional interpretation that a construction 
of an amendment which is warranted by its provi­
sions and manifest policy cannot be adopted unless 
it is also affirmatively supported by specific evi­
dence in the legislative history showing that its 
framers so “ intended.”  See State Board of 
Equalization v. Young’s Market Co., 299 U. S. 59, 
63-64; Breedlove v. Suttles, 302 U. S. 277. To be 
sure, the Court will review “ the background and 
environment”  of the period in order to illuminate 
the broad purposes which an amendment was de­
signed to achieve. E. g., Everson v. Board of 
Education, 330 U. S. 1, 8; McPherson v. Blacker, 
146 U. S. 1, 27. In attempting to determine the 
application of the amendment to a specific issue, 
however, the Court will give scant regard to in­
conclusive excerpts from debates which are relied 
upon to show a “ legislative intent.”  The Court’s 
attitude on this subject was summarized in Max­
well v. Dow, 176 U. S. 581, 601-602, involving a 
claim that the Fourteenth Amendment was in­
tended to make applicable to the states the jury 
requirements of the Sixth Amendment:

Counsel for plaintiff in error has cited 
from the speech of one o f the Senators of 
the United States, made in the Senate when 
the proposed Fourteenth Amendment was 
under consideration by that body, * * * 
and counsel has argued that this court 
should, therefore, give that construction to 
the amendment which was contended for by 
the Senator in his speech.



127

* * * It is clear that what is said in 
Congress upon such an occasion may or 
may not express the views of the majority 
of those who favor the adoption of the 
measure which may be before that body, and 
the question whether the proposed amend­
ment itself expresses the meaning which 
those who spoke in its favor may haver as­
sumed that it did, is one to be determined 
by the language actually therein used and 
not by the speeches made regarding it.

What individual Senators or Representa­
tives may have urged in debate, in regard 
to the meaning to be given to a proposed 
constitutional amendment, * * * does not 
furnish a firm ground for its proper con­
struction, nor is it, important as explanatory 
of the grounds upon which members voted 
in adopting it. * * *

In the case of a constitutional amend­
ment it is of less materiality than in that of 
an ordinary bill or resolution. A  constitu­
tional amendment must be agreed to, not 
only by Senators and Representatives, but 
it must be ratified by the legislatures, or by 
conventions, in three-fourths of the States 
before such amendment can take effect. 
The safe way is to read its language in con­
nection with the known condition of affairs 
out of which the occasion for its adoption 
may have arisen, and then to construe it, if  
there be therein any doubtful expressions, 
in a way so far as is reasonably possible, to 
forward the known purpose or object for 
which the amendment was adopted.



128

And see United States v, Wong Kim Ark, 169 
u. s. 649, egg.43

The Court has emphasized in many cases that 
the process of interpreting and applying the 
provisions of the Constitution, which as Chief 
Justice Marshall said was “ intended to endure 
for ages to come, and, consequently, to be adapted 
to the various crises of human affairs, ” 44 is 
not comparable to construing a contract or stat­
ute, where the judicial task is essentially to as­
certain and give effect to the intended meaning 
of the words used. Constitutional provisions like 
“ due process of law”  and “ equal protection of 
the laws”  express broad principles of govern­
ment the essence of which is their vitality and 
adaptability to the progressive changes and needs 
of the nation. The Court, speaking through Chief 
Justice Hughes, has sa id :45

I f  by the statement that what the Constitu­
tion meant at the time of its adoption it 
means today, it is intended to say that the 
great clauses of the Constitution must be 
confined to the interpretation which the

43 Mr. Justice Frankfurter, concurring in Adamson v. Cali­
fornia, 332 TJ. S. 46, stated (p. 64) that “ Remarks of a par­
ticular proponent o f the [Fourteenth] Amendment, no mat­
ter how influential, are not to be deemed part of the Amend­
ment. What was submitted for ratification wTas his proposal, 
not his speech.” And see the concurring opinion of Mr. Jus­
tice Bradley in the Legal Tender Cases, 12 Wall. 457,. 560.

44 McCulloch, v. Maryland, 4 Wheat. 316, 415.
45 Home Bldg, do Loan Ass'n v. Blaisdell, 290 U. S. 398, 

442-443.



129

framers, with the conditions and outlook of 
their time, would have placed upon them, 
the statement carries its own refutation. 
It was to guard against such a narrow 
conception that Chief Justice Marshall 
uttered the memorable warning—“ We 
must never forget that it is a constitution 
we are expounding” (McCulloch v. Mary­
land, 4 Wheat. 316, 407) * * *.

The opinions of the Court, particularly those 
which have come to be recognized as landmarks 
in the development of American constitutional 
law, are replete with expressions of a similar 
nature. They are familiar to the Court, and it is 
not necessary to repeat them here in extenso. A  
few examples will suffice to show how clearly and 
consistently the Court has articulated this rule 
o f constitutional interpretation:

Weems v. United States, 217 U. S. 349, 373- 
374 (McKenna, J.) :

* * * Time works changes, brings into 
existence new conditions and purposes. 
Therefore a principle to be vital must be 
capable of wider application than the mis­
chief which gave it birth. This is pecu­
liarly true of constitutions. They are not 
ephemeral enactments, designed to meet 
passing occasions. They are, to use the 
words of Chief Justice Marshall, “ designed 
to approach immortality as nearly as 
human institutions can approach it.”  The 
future is their care and provision for 
events of good and bad tendencies of which



130

no prophecy can be made. In the applica­
tion of a constitution, therefore, our con­
templation cannot be only of what has 
been but of what may be. Under any other 
rule a constitution would indeed be as easy 
of application as it would be deficient in 
efficacy and power. Its general principles 
would have little value and be converted 
by precedent into impotent and lifeless 
formulas. Rights declared in words might 
be lost in reality. * * *

Gompers v. United States, 233 U. S. 604, 610 
(Holmes, J.) :

* * * But the provisions of the Consti­
tution are not mathematical formulas hav­
ing their essence in their form ; they are 
organic living institutions transplanted 
from English soil. Their significance is 
vital not formal; it is to be gathered not 
simply by taking the words and a diction­
ary, but by considering their origin and the 
line of their growth. * * *

United States v. Classic, 313 U. S. 299, 316 
(Stone, J . ) :

* * * in setting up an enduring frame­
work of government they [the framers] un­
dertook to carry out for the indefinite 
future and in all the vicissitudes of the 
changing affairs of men, those fundamental 
purposes which the instrument itself dis­
closes. Hence we read its words, not as 
we read legislative codes which are subject 
to continuous revision with the changing 
course of events, but as the revelation of



131

the great purposes which were intended to 
be achieved by the Constitution as a con­
tinuing instrument of government.

W olf v. Colorado, 338 U. S. 25, 27 (Frank­
furter, J.) :

* * * basic rights do not become petri­
fied as of any one time, even though as a 
matter of human experience, some may not 
too rhetorically be called eternal verities. 
It is of the very nature of a free society 
to advance in its standards of what is 
deemed reasonable and right. Represent­
ing as it does a living principle, due process 
is not confined within a permanent cata­
logue of what may at a given time be 
deemed the limits or the essentials of 
fundamental rights.46 48

48 See also Davidson v. New Orleans, 96 U. S. 97, 104; 
Hurtado v. California, 110 U. S. 516, 530-531; Holden v. 
Hardy, 169 U. S. 366,385,386-387; South Carolina v. United 
States, 199 U. S. 437, 448; Helvering v. Davis, 301 U. S. 619, 
640-641; Rochin v. California, 342 U. S. 165, 169-172; and 
cf. Browder v. United States, 312 U. S. 335, 339-340. For 
non-judicial writings o f the members o f this Court, see 
Holmes, The Common Law (1881), pp. 35-36; The Path of 
the Law, 10 Harv. L. Rev. 457, 469, 472 (1897) ; Brandeis, 
The Living Law, 10 111. L. Rev. 461 (1916); Hughes, Ad­
dresses (1916), pp. 354r-355; The Supreme Court of the 
United States ( 1928), pp. 142,152,196; Cardozo, The Nature 
of the Judicial Process (1921), pp. 71, 83, 88; The Growth 
of the Law (1924), pp. 73-74, 104, 105-106; The Paradoxes 
of Legal Science (1928), p. 99; Stone, Law and Its Admin­
istration (1924), pp. 142-143; Fifty Years’ Work of the 
Supreme Court (1928), 14 A. B. A. Journ. 428; Reed, Stare 
Decisis and Constitutional Law (1938), No. 35 Penna. Bar 
Ass’n Quarterly, 131, 141, 142-143, 149; Frankfurter, Mr. 
Justice Holmes’ Constitutional Opinions (1923), 36 Harv.



132

I II
IT IS W IT H IN  THE JUDICIAL POWER, IN  CONSTRUING

THE FOURTEENTH AMENDMENT, TO DECIDE THAT
RACIAL SEGREGATION IN  PUBLIC SCHOOLS IS
UNCONSTITUTIONAL

Question 3 reads as follows:
On the assumption that the answers to 

questions 2 (a) and (b )* 47 do not dispose of 
the issue, is it within the judicial power, 
in construing the Amendment, to abolish 
segregation in public schools?

In the cases at bar the plaintiffs seek an adjudi­
cation of their claim that rights secured to them 
by the Constitution are violated by the mainte­
nance of separate schools for white and colored 
children. Question 3, as we understand it, re­
quests counsel to consider whether this claim is of 
such a nature that it falls within the exclusive 
province of the political branches of government
L. Rev. 909, 917, 920; Mr. Justice Holmes and the Supreme 
Court (1938), pp. 8, 75; Law and Politics (1939), pp. 13, 48, 
91, 99, 192, 196; Douglas, Stare Decisis (1949), pp. 9, 12; 
Jackson, The Struggle for Judicial Supremacy (1941), pp. 
23, 174; Full Faith and Credit (1945), pp. 42-43, 58.

47 Question 2 is :
“ I f  neither the Congress in submitting nor the States in 

ratifying the Fourteenth Amendment understood that com­
pliance with it would require the immediate abolition o f 
segregation in public schools, was it nevertheless the under­
standing o f the framers o f the Amendment 
- “ (a) that future Congresses might, in the exercise of 
their power under section 5 o f the Amendment, abolish such 
segregation, or

“ (b) that it would be within the judicial power, in light 
o f future conditions, to construe the Amendment as abolish­
ing such segregation o f its own force?”



133

and cannot properly be entertained and decided 
by the federal courts. In his opinion for the dis­
trict court in the Briggs case, Chief Judge Parker 
stated that racial segregation in public schools of 
the states presents “ not questions of constitutional 
right but of legislative policy * * *. The federal 
courts would be going far outside their constitu­
tional function were they to attempt to prescribe 
educational policies for the states in such matters, 
however desirable such policies might be in the 
opinion of some sociologists or educators. For 
the federal courts to do so would result, not only 
in the interference with local affairs by an agency 
of the federal government, but also in the sub­
stitution of the judicial for the legislative process 
in what is essentially a legislative matter.”  (No. 
1, R. 186-187.)

1. It is respectfully submitted that the con­
stitutional question before this Court is not 
the same as that before a state legislature con­
sidering whether, solely as a matter of educational 
and social policy, a system of racially separate 
or mixed schools should be established. I f  the 
Fourteenth Amendment leaves a state entirely 
free to choose whichever system it considers de­
sirable and beneficial for its people, then, of 
course, no federal court can substitute its judg­
ment for the choice made by the state. The ques­
tion presented here, however, is whether the 
Amendment does give such a freedom of choice 
to a state. This is a question not of legislative

2803151— 53— — 10



134

policy but of constitutional power—-and it is a 
question which under our system of government 
must ultimately be determined by this Court on 
the basis of its construction of the Fourteenth 
Amendment.

The plaintiffs in these cases contend that the 
Amendment should be construed as withdrawing 
from a state, in providing public education to 
its citizens, the authority to make legal distinc­
tions based solely on race or color. The defend­
ants, on the other hand, argue that this Court’s 
decisions interpreting the Amendment have estab­
lished the right of a state to maintain separate 
schools for white and colored pupils, provided the 
facilities for education offered to all are substan­
tially equal. The dispute in these cases thus 
centers on the proper construction to be given 
the Fourteenth Amendment. The judicial func­
tion here is not to review the wisdom of a state’s 
policy favoring segregation in education but 
rather to determine its constitutional power to 
adopt such a policy. Such a task clearly falls 
within the traditional authority and competence 
of this Court.

The authority under which federal courts act 
in enforcing rights secured by the Constitution 
is derived from the Constitution itself. Article 
I I I  of the Constitution vests the “ judicial Power 
of the United States”  in the Supreme Court and 
the lower federal courts established by Congress, 
and provides that the judicial power so vested



135

“  shall extend to all Cases, in Law and Equity, 
arising under this Constitution * * The
right asserted by the plaintiffs in these cases 
arises under the Constitution, and the relief 
prayed for (i. e., decrees enjoining continuation 
of the defendants’ allegedly unconstitutional prac­
tices) is of the sort which Anglo-American courts 
of equity have granted for centuries.

2. The judicial power is not lessened because the 
right invoked arises under the Fourteenth Amend­
ment. Section 5 of the Amendment, which em­
powers Congress to enforce its provisions by ap­
propriate legislation, neither expressly nor im­
pliedly limits the independent power of this. Court 
to vindicate, through appropriate judicial pro­
ceedings and remedies, rights guaranteed by the 
Amendment. In countless eases, too numerous 
for citation here, the Court has construed 
the Amendment of its own force, without 
any implementing act of Congress, as re­
quiring judicial invalidation of state action 
found to infringe rights protected by the Amend­
ment. In the vast majority of these cases no act 
of Congress was involved or even suggested. I f  
it should now be held, for the first time since its 
adoption in 1868, that the power of this Court to 
enforce the Fourteenth Amendment depends on 
the enactment of implementing legislation by Con­
gress, literally scores of decisions would have to be 
overruled. Among these would be the most recent 
applications of the Amendment to racial discrim-



136

mations in public education: Sweatt v. Painter, 
339 U. S. 629; McLaurin v. Oklahoma State 
Regents, 339 IT. S. 637; Sipuel v. Board of 
Regents, 332 U. S. 631; Missouri ex rel. Gaines 
v. Canada, 305 IT. S. 337. I f  one who claims that 
his right to equality in the enjoyment of public 
educational benefits has been violated must pre­
sent his claim to Congress rather than the courts, 
then all o f these cases—in which violation of that 
right was found and appropriate judicial relief 
granted—were erroneously decided.

Congress has, of course, exercised to some extent 
its power to enforce the Fourteenth Amendment. 
It has provided criminal and civil sanctions for 
violation of rights secured by the Amendment (18 
IT. S. C. 241-243; 8 IT. S. C. 41-48; cf. Screws v. 
United States, 325 U. S. 91; Williams v. United 
States, 341 U. S. 97), and it has conferred juris­
diction on the federal district courts to redress 
violations of such rights (28 IT. S. C. 1343). Re­
ferring to the federal statute prohibiting disquali­
fication of jurors in federal and state cases be­
cause o f race, color, or previous condition of servi­
tude (18 Stat. 336, 8 IT. S. C. 44), the Court re­
cently observed in Fay v. New York, 332 IT. S. 261, 
282-283 (the “ blue ribbon”  jury case) :

For us the majestic generalities of the 
Fourteenth Amendment are thus reduced to 
a concrete statutory command when cases 
involve race or color which is wanting in 
every other case of illegal discrimination.



137

In the Fay opinion (p. 283) the Court noted 
that in Ex parte Virginia, 100 U. S. 339, 345, one 
of the earliest cases arising under the Fourteenth 
Amendment, it was “ hinted that there might be no 
judicial power to intervene except in matters au­
thorized by Congress.”  The question in Ex parte 
Virginia, however, was whether the Fourteenth 
Amendment empowered Congress to enact 18 Stat. 
336, the Act cited above; no question was involved 
as to the independent judicial power to enforce 
the Amendment. It was decided on the same day 
as Virginia v. Rives, 100 U. S. 313, and the opin­
ions for the Court in both cases were delivered by 
Mr. Justice Strong. In the latter case the opinion 
expressly stated (p. 322) that “ Denials of equal 
rights in the action of the judicial tribunals of the 
State are left to the revisory powers of this 
court.”  And the decisions of this Court have es­
tablished beyond any possible doubt that its “ re­
visory powers”  to invalidate violations of the 
Fourteenth Amendment extend to every kind of 
state action, whether judicial, legislative, or execu­
tive, civil or criminal, substantive or procedural.

I f  any exception from this general principle is 
now to be carved out, so that this Court will de­
cline to exercise its power to enforce the Amend­
ment where the plaintiff is a Negro child com­
plaining that his constitutional right to equal pro­
tection of the laws has been violated by a state law 
compelling him to attend a segregated school, such 
an exception could not be justified by precedent.



138

The “ hint”  in Ex parte Virginia was never fol­
lowed in subsequent cases. It cannot today be re­
garded as raising any serious question as to this 
Court’s power and obligation to enforce all rights 
arising under the Fourteenth Amendment, with­
out awaiting exercise of the independent enforce­
ment power granted Congress in Section 5. When 
a litigant claims that a state law denies him due 
process or equal protection, this Court does not 
remand the case to Congress for remedial action. 
I f  the claim is sustained, the Court grants appro­
priate judicial relief. Congress and the Court 
have concurrent power, each within its own proper 
sphere, to enforce the Fourteenth Amendment. 
Judicial remedies are specific and directed to par­
ticular cases and parties; legislative remedies are 
necessarily general. An available judicial remedy 
for violation of the Amendment cannot be, and has 
never been, withheld merely because Congress has 
not found it necessary to enact general remedial 
legislation.

3. Of the rights arising under the Amendment 
which this Court has enforced, none has received 
more consistent and solicitous judicial vindication 
than the right to equality before the law and to be 
free from governmental discriminations based on 
race or color. The familiar test of the constitu­
tionality of a legislative classification is whether it 
has a reasonable basis. Bailway Express v. New 
York, 336 U. S. 106, 110. But reasonableness is 
not measured in the abstract; the standard of rea­



139

sonableness is found in the provisions and policy 
of the Fourteenth Amendment, And that Amend­
ment, as is demonstrated by its history (see pp. 
112-116, supra) and by decisions of this Court ex­
tending from the Slaughter-House Cases, 16 Wall. 
36, 81, to the Sweatt and McLaurin cases, 
339 U. S. 629, 637,48 has made it unreasonable and

48 The consistency o f the Court’s position deserves fuller 
exposition:

Slaughter-House Gases, 16 Wall. 36, 71:
“ [N ]o one can fail to be impressed with the one pervading 

purpose found in * * * * all [o f the reconstruction amend­
ments], lying at the foundation of each, and without which 
none o f them would have been even suggested; we mean the 
freedom of the slave race, the security and firm establish­
ment o f that freedom, and the protection o f the newly-made 
freeman and citizen from the oppressions o f those who had 
formerly exercised unlimited domination over him. * * *” 

Strauder v. West Virginia, 100 TJ. S. 303, 306-307:
“ This [the Fourteenth Amendment] is one o f a series of 

constitutional provisions having a common purpose; namely, 
securing to a race recently emancipated, a race that through 
many generations had been held in slavery, all the civil rights 
that the superior race enjoy. * * * It was designed to 
assure to the colored race the enjoyment o f all the civil rights 
that under the law are enjoyed by white persons, and to give 
to that race the protection of the general government, in that 
enjoyment, whenever it should be denied by the States.
* * * What is this but declaring that the law in the States 
shall be the same for the black as for the white; that all 
persons, whether colored or white, shall stand equal before 
the laws o f the States, and, in regard to the colored race, 
for whose protection the amendment was primarily designed, 
that no discrimination shall be made against them by law 
because o f their color ? * * *”

Virginia v. Rives, 100 U. S. 313,318:
“ The plain object o f these statutes [the civil rights laws 

enacted by Congress under the Fourteenth Amendment], as



140

unconstitutional, at least in the absence of com­
pelling reasons of national security, for a state to 
establish or enforce legal distinctions based on 
race or color. Even though other types of legis­
lative classifications are valid if  found to have a 
rational basis, the Court not only refuses to give 
laws imposing racial distinctions a presumption of 
constitutionality but regards them as at least 
prima facie unconstitutional. In Korematsu v. 
United States, 323 U. S. 214, 216, the Court said:
o f the Constitution which authorized them, was to place the 
colored race, in respect o f civil rights, upon a level with 
whites. They made the rights and responsibilities, civil and 
criminal, o f the two races exactly the same.”

Ex parte Virginia, 100 U. S. 339, 344-345 :
“ One great purpose of these amendments was to raise the 

colored race from that condition o f inferiority and servitude 
in which most o f them had previously stood, into perfect 
equality o f civil rights * * *. They were intended to take 
away all possibility of oppression by law because o f race or 
color.”

Neal v. Delaware, 103 U. S. 370, 389:
“ The question thus presented is o f the highest moment 

to that race, the security of whose rights o f life, liberty, and 
property, and to the equal protection o f the laws, was the 
primary object o f the recent amendments to the national 
Constitution.”

Plessy v. Ferguson, 163 U. S. 537, 544:
“ The object o f the [Fourteenth] amendment was un­

doubtedly to enforce the absolute equality o f the two races 
before the law * *

Maxwell v. Dow, 176 U. S. 581, 592:
“ [T]he primary reason for that [Fourteenth] amendment 

was to secure the full enjoyment o f liberty to the colored 
race * * *.”



141

It should be noted, to begin with, that all 
legal restrictions which curtail the civil 
rights of a single racial group are imme­
diately suspect. That is not to say that all 
such restrictions are unconstitutional. It is 
to say that courts must subject them to the 
most rigid scrutiny. Pressing public neces­
sity may sometimes justify the existence of 
such restrictions; racial antagonism never 
can.

The standard of reasonableness established by 
the Fourteenth Amendment is necessarily flexible

Buchanan v. Warley, 245 U. S. 60, 76:
“ [A] principal purpose o f the * * * Amendment was to 

protect persons o f color * *
Nixon v. Herndon, 273 U. S. 536, 541:
“ That Amendment [the Fourteenth], while it applies to 

all, was passed, as we know, with a special intent to protect 
the blacks from discrimination against them. * * * States 
may do a good deal o f classifying that it is difficult to be­
lieve rational, but there are limits, and it is too clear for 
extended argument that color cannot be made the basis o f 
a statutory classification affecting the right set up in this 
case [to vote at a state primary election]

Shelley v. Kraemer, 334 U. S. 1,23:
“ The historical context in which the Fourteenth Amend­

ment became a part o f the Constitution should not be for­
gotten. Whatever else the framers sought to achieve, it is 
clear that the matter o f primary concern was the establish­
ment o f equality in the enjoyment o f basic civil and political 
rights and the preservation o f those rights from discrimina­
tory action on the part of the States based on considerations 
o f race or color. Seventy-five years ago this Court announced 
that the provisions of the Amendment are to be construed 
with this fundamental purpose in mind.”



142

and dynamic. Changing conditions can make un­
justifiable and unconstitutional today that which 
yesterday may have been entirely justifiable and 
constitutional. In W olf v. Colorado, 338 II. S. 25, 
27, the Court said of the due process clause of the 
Fourteenth Amendment:

It is of the very nature of a free society to 
advance in its standards of what is deemed 
reasonable and right. Representing as it 
does a living principle, due process is not 
confined within a permanent catalogue of 
what may at a given time be deemed the 
limits or the essentials of fundamental 
rights.

Cf. Euclid v. Amber Realty Co., 272 U. S. 365, 
387, where the Court observed that the applica­
tion of constitutional guarantees “ must expand or 
contract to meet the new and different conditions 
which are constantly coming within the field of 
their operation. In a changing world, it is impos­
sible that it should be otherwise.”

It would be idle, therefore, to speculate whether 
the principle of equality before the law was vio­
lated by the continuation or establishment shortly 
after the Civil War in many states of separate 
schools for the children of the newly-freed slaves. 
Had the issue been raised, constitutional justi­
fication for such action might conceivably have 
been found in the illiteracy and retarded social 
and economic status of a race so recently liberated 
from the bonds of slavery, as well as in the rudi­
mentary and inadequate character of then-existing



143

public school systems, which might have made it 
impracticable to teach the two races in the same 
classes. Moreover, school attendance was not 
generally compulsory then, as it is now. (See 
pp. 9, 110, supra.) The question now before the 
Court is not whether conditions existing when 
these school systems began may have justified 
them, practically and legally. The question, 
rather, is whether, under the far different condi­
tions existing today, a legal requirement that 
colored children must attend public schools where 
they are segregated solely because of their color 
deprives them of their constitutional right to 
equality in the enjoyment of public educational 
advantages and opportunities.

4. The judicial inquiry, it must be emphasized, is 
not simply to determine whether there is equal­
ity as between schools: the Constitution requires 
that there be equality as between persons. The 
Fourteenth Amendment compels a state to grant 
the benefits o f public education to all its people 
equally, without regard to differences of race or 
color. This has not always been as clear as it 
is today. Prior to this Court’s decision in 1938 
in Missouri ex rel. Gaines v. Canada, 305 U. S. 
337, it could plausibly have been contended, in 
reliance on cases decided before then, that be­
cause public education is a “ privilege”  furnished 
at the pleasure of the state and maintained by 
local taxation, the Fourteenth Amendment does 
not impose any limitation (apart from a require­



144

ment that separate schools must be physically 
equal) on the state’s discretion to prescribe the 
terms and conditions on which such privilege is 
granted. Thus, in the first case in this Court 
involving a claim under the Fourteenth Amend­
ment that a state’s public educational system was 
unconstitutional, Gumming v. Board of Educa­
tion, 175 U. S. 528, decided in 1899, the Court in 
an opinion by Mr. Justice Harlan, who had dis­
sented so vigorously in Plessy v. Ferguson, 163 
U. S. 537, stated (p. 545):

* * * while all admit that the benefits 
and burdens of public taxation must be 
shared by citizens without discrimination 
against any class on account of their race, 
the education of the people in schools main­
tained by state taxation is a matter belong­
ing to the respective States, and any inter­
ference on the part of Federal authority 
with the management of such schools can­
not be justified except in the case of a clear 
and unmistakable disregard of rights se­
cured by the supreme law of the land.®

49 See also Berea College v. Kentucky, 211 U. S. 45, where 
the Court upheld a state statute making it unlawful for a 
state-chartered corporation to operate a private school where 
white and colored pupils are taught together. Harlan, J., 
dissented on the ground that the statute was inconsistent 
with “ the great principle o f the equality o f citizens before 
the law.”  (p. 69.) He was careful to add, however: “Of 
course what I  have said has no reference to regulations pre­
scribed for public schools, established at the pleasure o f the 
State and maintained at the public expense. No such ques­
tion is here presented and it need not be now discussed.” 
{Id.)



145

Similarly, in Gong Lum v. Rice, 275 U. S. 78, 
decided in 1927, the Court dealt with the question 
“ whether a Chinese citizen of the United States 
is denied equal protection of the laws when he 
is classed among the colored races and furnished 
facilities for education equal to that offered to 
all, whether white, brown, yellow or black”  (p. 
85). Answering this question in the negative, the 
Court, in an opinion by Mr. Chief Justice Taft, 
held that “ The right and power of the state to 
regulate the method of providing for the educa­
tion of its youth at public expense is clear”  (ibid.), 
citing and quoting from the Gumming case.

Mr. Chief Justice Taft’s opinion in Gong Lum 
stated (pp. 85-86): “ Were this a new question, 
it would call for very full argmnent and consid­
eration, but we think that it is the same question 
which has been many times decided to be within 
the constitutional power of the state legislature 
to settle without intervention of the federal courts 
under the Federal Constitution.”  In support of 
this statement were cited fifteen cases, none of 
them decided by this Court. Twelve were state 
cases, beginning with Roberts v. City of Boston, 
5 Cush. (Mass.) 198, decided in 1850, eighteen 
years before the Fourteenth Amendment was 
adopted. At least some of these cases expressed 
the view that control over public education is a 
subject-matter inherently within a state’s police 
power, and that the Fourteenth Amendment im­
poses no limitation on its power in that regard.



146

E. g., State ex rel. Stoutmeyer v. Duffy, 7 Nev. 
342, 346; State ex rel. Games v. McCann, 21 Ohio 
St. 198, 209; Cory v. Carter, 48 Ind. 327, 360.

In Missouri ex rel. Gaines v. Canada, supra, 
however, this Court unequivocally dispelled any 
notion that because public education is provided 
as a matter of “ privilege”  rather than of right, 
the state has full discretion to determine the 
terms and conditions on which such privilege is 
granted. The Court, speaking through Mr. Chief 
Justice Hughes, said (305 U. S. at pp. 349-350) :

The question here is not of a duty of the 
State to supply legal training, or of the 
quality of the training which it does sup­
ply, but of its duty when it provides such 
training to furnish it to the residents of 
the State upon the basis of an equality of 
right. By the operation of the laws of 
Missouri a privilege has been created for 
white law students which is denied to 
Negroes by reason of their race. * * * 
That is a denial of the equality of legal 
right to the enjoyment of the privilege which 
the State has set up * * *.

As we read its opinion, the Court in the Gaines 
case made it clear that its function in cases of 
this type is not limited to appraising questions of 
fact concerning the physical equality of schools 
or facilities, and that its primary concern is 
whether the individual is being denied, because of



147

race or color, equality o f treatment in the oppor­
tunities, advantages, and benefits offered by the 
state. In that case the Court decided that a legal 
education—assumedly equal in quality—offered in 
schools outside the state did not meet the required 
standard of personal equality of right when con­
trasted with the privilege, afforded only to white 
students, of legal education in a school within the 
state. That this was a departure from the ap­
proach taken in the Gumming and Gong Lmn cases 
is indicated by the dissenting opinion of Mr. Justice 
McReynolds (305 U. S. at 353-354), who unsuccess­
fully invoked those cases to support his view that 
'“ the settled legislative policy of the State”  for 
“ separation of whites and Negroes in schools”  
shoul d not be upset by the Court.50

50 In Atkin v. Kansas, 191 U. S. 207, 222, the Court had 
stated that “ it belongs to the State, as the guardian and trustee 
for its people, and having control o f its affairs, to prescribe the 
conditions upon which it will permit public work to be done 
on its behalf, or on behalf o f its municipalities.” This prin­
ciple was applied in Heim v. McCall, 239 U. S. 175, to up­
hold the validity o f a state law excluding aliens from employ­
ment on public works, the Court declaring (pp. 191-193) 
that regulations on this subject involve only considerations 
of public policy with which the courts have no concern. To 
the extent that these cases hold that the prohibitions o f the 
Fourteenth Amendment do not apply at all to public em­
ployment because it is a “ privilege”  wholly subject to the 
discretion o f the state, they have been limited by Wieman 
v. Updegraj? , 344 IT. S. 183, 191-192, and United Public 
If orkers v. Mitchell, 330 U. S. 75,100, as well as by the cases 
cited in the text.



148

Following the Gaines case came Sipuel v. Board 
of Regents, 332 U. S. 631; Sweatt v. Painter, 339 
U. S. 629; and McLaurin v. Oklahoma State 
Regents, 339 U. S. 637. Those cases emphasized 
the personal character of the right to equal pro­
tection of the laws. In Sweatt and McLaurin, the 
Court directed its attention to the individual 
plaintiff, and appraised the educational oppor­
tunities afforded by the state solely in terms of 
their value to him, considering all the conditions 
(tangible and intangible) on which they were 
offered. In those cases the Court, looking beyond 
any claimed physical equality of the facilities fur­
nished, found a denial of the plaintiff’s constitu­
tional right to equal treatment. Thus, in the 
McLaurin ease, a Negro graduate student was 
furnished an education not only equal but identi­
cal to that offered whites, but he was subjected to 
such segregated treatment because of his color 
that this Court, adverting to psychological and 
sociological considerations such as are urged here, 
ordered that he he treated completely without 
reference to his color (p. 642) :

We conclude that the conditions under 
which this appellant is required to receive 
his education deprive him of his personal 
and present right to the equal protection of 
the laws. See Sweatt v. Painter, ante, p. 
629. We hold that under these circum­
stances the Fourteenth Amendment pre­
cludes differences in treatment by the state 
based upon race. Appellant, having been



149

admitted to a state-supported graduate 
school, must receive the same treatment at 
the hands of the state as students of other 
races.

In one of the cases at bar, Ho. 1, the Kansas 
case, the district court found (R. 245-246) that 
racial segregation in public schools has a detri­
mental effect on colored children; that it affects 
their motivation to learn; and that it has a ten­
dency to retard their educational and mental 
development and to deprive them of benefits they 
would receive in an integrated school system. The 
opinions in the Sweatt and McLaurin cases, 339 
U. S. at 633-635 and 641-642, show that similar 
considerations were found persuasive by the Court 
in concluding that the plaintiffs in those cases 
were denied the equality of right secured them by 
the Fourteenth Amendment. In neither of those 
cases is there any suggestion that the question 
presented is not justiciable; or that it involves 
the determination of matters of educational or 
social policy outside the judicial power; or that 
the constitutional question of segregation in 
higher education is in any respect different from 
segregation in elementary and high schools.

5. Finally, it is clear that the eases at bar do not 
involve “ political questions” beyond the authority 
and competence of federal courts to decide. The 
Court has clearly marked out the types of ques­
tions which it will not undertake to adjudicate 
because their nature is such as to make them

280315— 53' 11



150

exclusively the concern of the political depart­
ments. Thus, the federal courts will decline to 
determine whether and when a state of war exists, 
leaving such questions to the legislative and exec­
utive branches of government. The Protector, 12 
Wall. 700. Similarly, the constitutional responsi­
bility of each house of Congress to be “ the Judge 
of the Elections, Returns and Qualifications of its 
own Members”  (Article I, section 5) implies a 
corollary lack of authority in the courts to deal 
with such “ political”  questions as apportionment. 
Golegrove v. Green, 328 U. S. 549; cf. Giles v. 
Harris, 189 U. S. 475. And, of course, it has long- 
been settled that it is not part of the federal 
judicial function to enforce the guarantee of 
Article IV, section 4, that every state shall have 
a republican form of government. Luther v. 
Borden, 7 How. 1; Georgia v. Stanton, 6 Wall. 50; 
Pacific States Telephone and Telegraph Go. v. 
Oregon, 223 II. S. 118.

Hone of the considerations governing those 
cases is applicable here. Determination of the 
constitutional question presented in the instant 
cases would in no respect conflict with, or intrude 
upon, any power which the Constitution vests in 
the Congress or the President. Indeed, as is evi­
denced by the countless decisions of this Court 
enforcing the Fourteenth Amendment, the prin­
cipal responsibility for vindicating rights secured 
by that Amendment has properly been assumed 
by the judiciary. A  decision that racial segrega­



151

tion in public elementary and high schools is un­
constitutional would be no more “ political”  or 
“ legislative”  than those which have ended seg­
regation in higher levels of public education. 
Sweatt v. Painter, supra; McLaurin v. Oklahoma 
State Regents; supra.

In answer to any contention that this Court 
lacks the competence to decide the question of 
constitutional interpretation which has been 
placed before it in these eases, we call to mind 
its words in West Virginia State Board of Edu­
cation v. Barnette, 319 U. S. 624, 638, 639-640:

The very purpose of a Bill of Rights was 
to withdraw certain subjects from the vicis­
situdes of political controversy, to place 
them beyond the reach of majorities and 
officials and to establish them as legal prin­
ciples to be applied by the courts. * * * 

Nor does our duty to apply the Bill of 
Rights to assertions of official authority 
depend upon our possession of marked 
competence in the field where the invasion 
of rights occurs. * * * [C]hanged con­
ditions often deprive precedents of reliabil­
ity and cast us more than we would choose 
upon our own judgment. But we act in 
these matters not by authority of our com­
petence but by force of our commissions. 
We cannot, because of modest estimates of 
our competence in such specialties as public 
education, withhold the judgment that his- 

• tory authenticates as the function of this 
Court when liberty is infringed.



152

IV
IF THE COURT HOLDS THAT RACIAL SEGREGATION IN 

PUBLIC SCHOOLS IS UNCONSTITUTIONAL, IT HAS 
POWER TO DIRECT SUCH RELIEF AS IN  ITS JUDGMENT 
W ILL BEST SERVE THE INTERESTS OF JUSTICE IN  
THE CIRCUMSTANCES

Question 4 reads as follows:
Assuming it is decided that segregation 

in public schools violates the Fourteenth 
Amendment

(a) would a decree necessarily follow 
providing that, within the limits set by 
normal geographic school districting, Negro 
children should forthwith be admitted to 
schools of their choice, or

(b) may this Court, in the exercise of 
its equity powers, permit an effective grad­
ual adjustment to be brought about from 
existing segregated systems to a system not 
based on color distinctions'?

This question assumes that the Court will hold 
that the plaintiffs in these cases have a constitu­
tional right not to be excluded, solely because of 
their color, from schools which they would other­
wise be allowed to attend. The question is ad­
dressed solely to the Court’s power to fashion an 
appropriate remedy. Is its power so limited that, if 
it finds that racial segregation in public schools is 
unconstitutional, it must necessarily enter decrees 
requiring immediate admission of the plaintiffs 
to nonsegregated schools—or can it direct some 
other form of relief? The alternative type of



153

relief suggested by the Court’s question is to 
“permit an effective gradual adjustment to be 
brought about from existing segregated systems to 
a system not based on color distinctions.”

In dealing with question 5, infra, pp. 170-185, 
we shall consider the problems which may arise, at 
least in some areas, in giving effect to a decision 
that segregation in public schools is unconstitu­
tional. We shall there discuss the question 
whether, and to what extent, it would be equitable 
and in the public interest for the Court to enter 
decrees in these cases requiring that Negro chil­
dren should “ forthwith”  be admitted to nonsegre- 
gated schools.

The shaping of relief in the present cases in­
volves reference to three fundamental principles 
governing the granting of judicial remedies, each 
of which is to some degree applicable here: (1) 
One whose legal rights have been and continue 
to be violated is entitled to relief which will be 
effective to redress the wrong. I f  a court finds 
that certain conduct is unlawful, it normally 
enters a decree enjoining the continuation of such 
conduct. (2) A  court of equity is not inflexibly 
bound to direct any particular form of relief. It 
has full power to fashion a remedy which will best 
serve the ends of justice in the particular circum­
stances. (3) In framing its judgment a court 
must take into account not only the rights of the 
parties but the public interest as well. The needs 
of the public, and the effect of proposed decrees



154

on the general welfare, are always of relevant, if 
not paramount, concern to a court of justice.

The principal problem here, as so often in the 
law, is to find a wise accommodation of these 
principles as applied to the facts presented. 
“ The essential consideration is that the remedy 
shall be as effective and fair as possible in pre­
venting continued or future violations of the 
[law] in the light of the facts of the particular 
case.”  United States v. National Lead Go., 332 
U. S. 319, 335. But, whatever the difficulties of 
determining what remedy would be most effec­
tive and fair in redressing the violation of con­
stitutional right presented in these cases, we 
believe there can be no doubt of the Court’s power 
to grant such remedy as it finds to be most con­
sonant with the interests of justice.

Congress has expressly empowered the Court, 
in dealing with cases coming before it, to enter 
“ such appropriate judgment, decree, or order, or 
require such further proceedings to be had as 
may be just under the circumstances.”  28 
U. S. C. 2106. The breadth of this power, and 
the flexibility of judicial remedies which it per­
mits the Court to utilize, have been demonstrated 
in a great variety of situations. See Minne­
sota v. National Tea Go., 309 U. S. 551, 555; 
Bedes v. Peoples Bank, 333 U. S. 426, 431; Radio 
Station W O W , Inc. v. Johnson, 326 U. S. 120, 
132; Addison v. Holly Hill Go., 322 U. S. 607, 
620, 622; Hecht Go. v. Bowles, 321 U. S. 321, 329-



155

330; Alexander v. Hillman, 296 U. S. 222, 239; 
Atlantic Coast Line v. Florida, 295 U. S. 301, 316; 
Central Kentucky Co. v. Railroad Commission, 
290 U. S. 264, 271; Union Pacific Railway Co. v. 
Chicago, Ac. Railwa/y Co., 163 IT. S. 564, 600-601; 
and see Story, Equity Jurisprudence (14th ed.), 
§§ 28, 578; Pomeroy, Equity Jurisprudence (5th 
ed.), §§ 111, 170, 175a. In Hecht Co. v. Bowles, 
supra, this Court said (pp. 329-330) :

The essence of equity jurisdiction has 
been the power of the Chancellor to do 
equity and to mould each decree to the 
necessities of the particular case. Flexi­
bility rather than rigidity has distinguished 
it. The qualities of mercy and practicality 
have made equity the instrument for nice 
adjustment and reconciliation between the 
public interest and private needs as well as 
between competing private claims.

In Addison v. Holly Hill Co., supra, at 619, the 
Court emphasized that where governmental action 
has been in violation of law, the judicial task is 
to seek a disposition which “ is most consonant 
with justice to all interests in retracing the 
erroneous course that has been taken.”  Com­
menting upon United States v. Morgan, 307 U. S. 
183, and other instances of judicial adaptation 
of conventional remedies to meet the needs of 
unusual situations, the Court said (pp. 620, 622) : 

The creative analogies of the law were 
drawn upon by which great equity judges, 
exercising imaginative resourcefulness,



156

have always escaped the imprisonment of 
reason and fairness within mechanical con­
cepts of the common law. * * *

*  *  *  *  *

In short, the judicial process is not with­
out the resources of flexibility in shaping its 
remedies, though courts from time to time 
fail to avail themselves of them.

Where public interests are involved, equitable 
powers “ assume an even broader and more flexible 
character than when only a private controversy 
is at stake.”  Porter v. Warner Co., 328 U. S. 395, 
398; and see Radio Station W O W , Inc. v. John­
son, supra, at 132; Yakus v. United States, 321 
IT. 8. 414, 441; //echt Co. v. Boivles, supra, at 329- 
330; Mercoid Corp. v. Mid-Continent Co., 320 
IT. 8. 661, 670; Railroad Commission of Texas v. 
Pullman Co., 312 IT. 8. 496, 500; Inland Steel Co. 
v. United States, 306 IT. S. 153, 157; Virginian 
Railway Co. v. System Federation, 300 IT. S. 515, 
552; Beasley v. Texas and Pacific Ry. Co., 191 
V. S. 492, 498.

In habeas corpus cases arising out of criminal 
and deportation proceedings the Court has framed 
its relief to permit correction of illegality where 
possible, instead of directing immediate or out­
right discharge of the petitioner. Thus, in In re 
Bonner, 151 IT. S. 242, where the trial court had 
exceeded its jurisdiction in sentencing the peti­
tioner, the Court delayed his discharge in order to 
afford opportunity for the court to correct its 
error. The Court held that Section 761 of the



157

Revised Statutes (now contained in 28 U. S. C. 
2243), authorizing “ the court * * * to dispose of 
the party as law and justice require,”  invested it 
“ with the largest power to control and direct the 
form of judgment to be entered in cases brought 
up before it on habeas corpus”  (p. 261). And see 
Medley, Petitioner, 134 U. S. 160. Similarly, in 
Mahler v. Eby, 264 U. S. 32, where the Court held 
that a warrant of deportation was defective, it stated 
that “ We need not discharge the petitioners at 
once because of the defective warrant”  (p. 45). 
To the same effect are Tod v. Waldman, 266 IT. S. 
113, and Butterfield v. Zydok, 342 IT. S. 524, 
546-47.31

In granting relief in civil cases against a prac­
tice or condition found to be unlawful, courts have 
frequently suspended the operation of their de­
crees on grounds of inconvenience to the public or 
undue hardship to the wrongdoer, and have al­
lowed sufficient time for removing the illegality. 
Thus, in Georgia v. Tennessee Copper Co., 206 
IT. S. 230, an original bill in equity by Georgia to 
enjoin the defendant copper companies from dis- 51

51 Compare United States v. Morgan, 307 U. S. 183, hold­
ing that where an order o f the Secretary of Agriculture fixing 
stockyard rates was void for procedural defects but there was 
no judicial determination o f the reasonableness o f the rates 
fixed by the order, the money representing the difference 
between the rates in effect and the lower rates o f the order 
should be retained in the registry o f the District Court to 
await a further and valid determination o f reasonable rates 
by the Secretary.

280315— 53-------12



158

charging noxious gas from their works in Ten­
nessee over Georgia’s territory, the Court, in an 
opinion by Mr. Justice Holmes, held that, not­
withstanding that the defendants’ activities were 
unlawful, an injunction would issue “ after allow­
ing a reasonable time to the defendants to com­
plete the structures that they are now building, 
and the efforts that they are making to stop the 
fumes” (p. 239).52 * Cf. Harrisonville v. Dickey 
Clay Co., 289 U. S. 334; Great Central By  v. Don­
caster Rural Council, 87 L. J. R. N. S. 8 0 ;58 
Gregory v. Crain, 291 Ky. 194; City of San Diego 
v. Van Winkle, 69 Cal. App. 2d 237, 241.54

52Although the decision was rendered in 1907, the mat­
ter was still before the Court in 1916. See 237 U. S. 474, 678, 
and 240 U. S. 650.

63 Other English cases, each involving abatement o f a 
nuisance, are: City of Manchester v. Farnworth [1930] A. C. 
171, 185; Attorney General v. Birmingham,, 4 Kay & J. 528, 
541, 547-548 (1858); Attorney-General v. Proprietors of the 
Bradford Canal, L. R. 2 Eq. 71 (1866); Attorney-General v. 
Colney Hatch Lunatic Asylum>, 4 Ch. App. 146, 165-166 
(1868) ; Attorney General v. Corporation of Halifax, 39 L. J. 
Ch. N. S. 129 (1869); North Staffordshire By. Co. v. Board 
of Health, 39 L. J. Ch. K. S. 131 (1870); Attorney-General 
v. Finchley Local Board, 3 Times L. R. 356 (1887). See 
also 1 Seton, Judgments and Orders (7th ed.), p. 612.

84 Other state cases in which the effective date o f an in­
junction was suspended to permit time for necessary read­
justment, most of them involving abatement o f a nuisance, 
are: Harding v. Stamford 'Water Co., 41 Conn. 87; Stovern 
v. Town of Calmar, 204 la. 983, 986; Caretti v. Broring 
Building Co., 150 Md. 198, 210-211; Brehm v. Richards, 152 
Md. 126, 136-137; Baltimore v. Brack, 175 Md. 615; Boston 
Rolling Mills v. Cambridge, 117 Mass. 396, 401; Breed v. 
City of Lynn, 126 Mass. 367, 370; Suburban Land Co., Inc.



159

In the field of monopolies and illegal combina­
tions federal courts have regarded their powers 
to be of sufficient flexibility to permit elimination 
of unlawful practices to take place over a reason­
able period of time. Cf. Northern Securities Co. 
v. United States, 193 U. S. 197, 360.55 Thus, 
where a violation of the antitrust laws has per­
sisted over a long period of time, resulting in a 
tangled complex of economic arrangements tainted 
with illegality, it is recognized that a decree call­
ing for complete elimination of the illegal ar­
rangements overnight would, in the particular 
circumstances, be impracticable. See, for exam­
ple, the provisions for dissolution of the illegal 
combinations involved in the Tobacco, Standard

v. Billerica, 314 Mass. 184,194; Gundy v. Tillage of Merrill, 
250 Mich. 416; Lohman v. The St. Paul, etc. R. R. Co., 18 
Minn. 174; Doremus v. Mayor and Aldermen of Paterson, 79 
N. J. Eq. 63; State v. White, 90 N. J. Eq. 621; Chapman v. 
City of Rochester, 110 N. Y . 273; Moody v, Village of Sara­
toga Springs, 17 App. Div. (N. Y .) 207, affirmed, 163 1ST. Y. 
581; Sammons v. City of Gloversville, 34 Misc. (N. Y .) 459; 
Bailey v. City of New York, 38 Misc. (N. Y .) 641; French 
v. Chapin-Sacks Mfg. Co., 118 Ya. 117; Town of Purcellville 
v. Potts, 179 Ya. 514,524,525; Winchell v. City of Waukesha, 
110 Wis. 101. See Pomeroy’s Eq. Rem. (1905), §§ 531, 535; 
Beach, Injunctions (1895), §2; High on Injunctions (4th 
ed.), § 746.

55 There the Court, in speaking generally o f remedies in 
a civil antitrust suit, said (p. 360) :

“ This, it must be remembered, is a suit in equity * * *; 
and the court, in virtue of a well settled rule governing pro­
ceedings in equity, may mould its decree so as to accomplish 
practical results—such results as law and justice demand.”



160

Oil and Motion Picture cases.53 The decree en­
tered in the Tobacco case furnishes a useful prece­
dent and guide to the disposition o f the present 
cases, and for that reason we quote at length from 
the Court’s opinion there (pp. 185, 187-188) :

* * * In considering the subject [o f re­
lief] * * * three dominant influences must 
guide our action: 1. The duty of giving 
complete and efficacious effect to the prohi­
bitions of the statute; 2, the accomplishing 
of this result with as little injury as possi­
ble to the interest of the general public; 
and, 3, a proper regard for the vast inter­
ests of private property which may have 
become vested in many persons as a result 
of the acquisition either by way of stock 
ownership or otherwise of interests in the 
stock or securities of the combination with­
out any guilty knowledge or intent in any 
way to become actors or participants in the 
wrongs which we find to have inspired and 
dominated the combination from the begin­
ning. * * *

* * * * *  56

56 United States v. American Tobacco Go., 221 U. S. 106, 
191 Fed. 371 (S. D. N. Y .) ; Standard Oil Co. v. United 
States, 221 U. S. 1; United States v. Paramount Pictures, 
70 F. Supp. 53, 74-75 (S. D. N. Y .), 334 TJ. S. 131, 85 F. 
Supp. 881, 899, 339 U. S. 974. See also United States v. Na­
tional Head Go., 332 U. S. 319, 329—335, 363; United States 
v. Aluminum Co., 322 TJ. S. 716, 148 F. 2d 416 (C. A . 2), 
171 F. 2d 285, 91 F. Supp. 333, 419 (S. D. N. Y . ) ; United 
States v. International Harvester Co., 214 Fed. 987 (D. 
Minn.), 274 TJ. S. 693.



161

* * * Under these circumstances, taking 
into mind the complexity of the situation in 
all of its aspects and giving weight to the 
many-sided considerations which must con­
trol our judgment, we think, so far as the 
permanent relief to be awarded is con­
cerned, we should decree as follows: 1st. 
That the combination in and of itself, as 
well as each and all of the elements com­
posing it, whether corporate or individual, 
whether considered collectively or sepa­
rately, be decreed to be in restraint of trade 
and an attempt to monopolize and a monop­
olization within the first and second sections 
of the Antitrust Act. 2d. That the court 
below, in order to give effective force to our 
decree in this regard, be directed to hear 
the parties, by evidence or otherwise, as it 
may be deemed proper, for the purpose of 
ascertaining and determining upon some 
plan or method of dissolving the combination 
and of recreating, out of the elements now 
composing it, a new condition which shall 
be honestly in harmony with and not re­
pugnant to the law. 3d. That for the ac­
complishment of these purposes, taking into 
view the difficulty of the situation, a pe­
riod of six months is allowed from the re­
ceipt of our mandate, with leave, however, 
in the event, in the judgment of the court 
below, the necessities of the situation re­
quire, to extend such period to a further 
time not to exceed sixty days. 4th. That 
in the event, before the expiration of the 
period thus fixed, a condition of disintegra­



162

tion in harmony with the law is not brought 
about, either as the consequence of the ac­
tion of the court in determining an issue on 
the subject or in accepting a plan agreed 
upon, it shall he the duty of the court, 
either by way of an injunction restraining 
the movement of the products of the combi­
nation in the channels of interstate or for­
eign commerce or by the appointment of a 
receiver, to give effect to the requirement 
of the statute.57

Cf. Standard Oil Co. v. United States, 221 U. S. 
1, where this Court directed extension of the time 
for executing the decree from a period of thirty 
days to at least six months, ‘ ‘ in view of the magni­
tude of the interests involved and their com­
plexity”  (p. 81).58

57 A  plan was formulated under the supervision o f the 
district court at a series o f conferences extending for a 
period of more than two months. A  hearing was held on 
the plan at which not only the parties but also any person 
who wished to express his views as a friend o f the court was 
given an opportunity to do so. See 191 Fed. at 373. In the 
decree approving the plan it was adjudged that it “ will re­
create out o f the elements now composing it [the illegal com­
bination] a new condition which will be honestly in har­
mony with, and not repugnant to, the law, and without 
unnecessary injury to the public or the rights o f private 
property.” The decree also gave the defendants an exten­
sion of the period for carrying the plan into execution and 
provided for retention of jurisdiction by the court “ for the 
purpose o f making such other and further orders and de­
crees, i f  any, as may become necessary for carrying out the 
mandate of the Supreme Court.” 191 Fed. at 428, 430-431.

58 In the International Harvester case (214 Fed. 987 
(D. M inn.)), the court directed that “ the entire combina-



163

The Court has expressed a reluctance to enter 
decrees which would involve the judiciary in the 
administration of complex and detailed matters: 
“ The judiciary is unsuited to affairs of business 
management; and control through the power of 
contempt is crude and clumsy and lacking in the 
flexibility necessary to make continuous and de­
tailed supervision effective.”  United States v. 
Paramount Pictures, 334 U. S. 131, 163; see also 
Brown v. Board of Trustees, 187 F. 2d 20, 25 
(C. A. 5). It is clear, however, that this goes to 
the exercise of the Court’s discretion and not to 
its power to act in such situations. The choice 
whether or not the courts are to be thrust into 
a system involving difficult policing problems 
“ should not be faced unless the need for the 
system is great and its benefits plain.” United 
States v. Paramount Pictures, supra, at 164. The
tion and monopoly be dissolved, that the defendants have 
90 days in which to report to the court a plan for the disso­
lution of the entire unlawful business into at least three sub­
stantially equal, separate, distinct, and independent corpo­
rations,” and it was further provided that “ in case the de­
fendants fail to file such plan within the time limit the court 
will entertain an application for the appointment o f a re­
ceiver for all the properties o f the corporate defendants, 
and jurisdiction is retained to make such additional decrees 
as may become necessary to secure the final winding up and 
dissolution o f the combination and monopoly complained 
o f * * *” (214 Fed. at 1001). The decree was entered in 
August 1914 and modified in October of that year. In No­
vember 1918 a consent decree was entered, and in 1927 this 
Court affirmed dismissal of a supplemental petition of the 
Government for further relief in the case. See 274 U. S. 
693.



164

Court, in rejecting the argument that it should 
not act because it would be required to embark 
upon an enterprise involving burdensome admin­
istrative functions, said in Nebraska v. Wyoming, 
325 U. S. 589, 616: “ The difficulties of drafting 
and enforcing a decree are no justification for us 
to refuse to perform the important function en­
trusted to us by the Constitution.” See also Joy 
v. St. Louis, 138 U. S. 1, 47; Southern R. Co. v. 
Franklin dec. C. R. Co., 96 Va. 693; Harper v. 
Railway Co., 76 W. Va. 788, 794; Pomeroy, Equi­
table Remedies (1905) § 761. In Georgia v. Ten­
nessee Copper Co., 206 U. S. 230, 237 U. S. 474, 
678, the Court did not hesitate to enter a decree 
which involved it deeply in the details of effective 
enforcement.

It may be contended, however, that the powers 
o f  a court o f equity are not so comprehensive 
where vindication of the constitutional right to 
equal protection of the laws is involved. Such 
right, the Court has pointedly observed, is “ per­
sonal and present.”  Sweatt v. Painter, 339 U. S. 
629, 635; McLaurin v. Oklahoma State Regents, 
339 U. S. 637, 642; Shelley v. Kraemer, 334 IT. S. 
1, 22; Sipuel v. Board of Regents, 332 U. S. 631, 
633; Missouri ex rel. Gaines v. Canada, 305 U. S. 
337, 351; McCabe v. Atchison, T. & S. F. Ry. Co., 
235 U. S. 151, 161-162. Thus a complainant must 
show that his own rights have been unconstitu­
tionally impaired; it is not sufficient for him to 
establish that the rights of others have been



165

affected (McCabe v. Atchison, T. & S. F. By. Co.). 
Similarly, it is no answer to a particular plain­
tiff’s claim to say that at some time in the future 
he will receive the equality of treatment which 
is his constitutional right (Sipuel v. Board of 
Regents). So, too, in the present cases, the plain­
tiffs could well say that, as individuals whose 
constitutional rights have been and are continuing 
to be violated, it affords them inadequate redress 
to enter decrees providing only that at some time 
in the future (perhaps after they are too old 
themselves to enjoy the benefits of the Court’s 
decision) colored children as a group must be 
given public education on a non-segregated basis. 
For these plaintiffs the remedy of immediate ad­
mission to non-segregated schools is an indis­
pensable corollary of the constitutional right, for 
to recognize a litigant’s right without affording 
him an adequate remedy for its violation is to 
nullify the value of the right.

On the other hand, it is also true that the con­
stitutional issues presented to the Court tran­
scend the particular cases and complainants at 
bar, and in shaping its decrees the Court may take 
into account such public considerations as the ad­
ministrative obstacles involved in making a gen­
eral transition throughout the country from exist­
ing segregated school systems to ones not based on 
color distinctions. I f  the Court should hold in 
these cases that racial segregation per se violates 
the Constitution, the immediate consequence



166

would be to invalidate the laws of many states 
which have been based on the contrary assump­
tion, Racial segregation in public schools is not 
an isolated phenomenon limited to the areas in­
volved in the cases at bar, and it would be reasona­
ble and in accord with its historic practices for the 
Court in fashioning the relief in these cases to 
consider the broad implications and consequences 
of its ruling.

The “ personal and present”  language appears 
in cases involving education on the professional 
and graduate levels. Each case involved a single 
plaintiff. It is one thing to direct immediate re­
lief where a single individual seeks vindication of 
his constitutional rights in the relatively narrow 
area of professional and graduate school educa­
tion, and an entirely different matter to follow 
the same course in the broad area of public school 
education affecting thousands of children, teach­
ers, and schools. We do not think that when the 
Court in those cases characterized the right to 
equal protection of the laws as “ personal and 
present” , it was thereby rejecting the applica­
bility, to cases involving the right, of settled prin­
ciples governing equitable relief.59 On the con­

59 This Court long ago cautioned “ that general expressions, 
in every opinion, are to he taken in connection with the case 
in which those expressions are used. I f  they go beyond the 
case, they may be respected, but ought not to control the 
judgment in a subsequent suit, when the very point is pre­
sented for decision.” Chief Justice Marshall in Cohens v.



167

trary, the Court has recognized that such prin­
ciples are equally applicable to litigation involv­
ing fundamental constitutional rights of indi­
viduals. Thus, in McCabe v. Atchison, T. & 8. F. 
By. Co., 235 U. S. 151, five Negro citizens brought 
suit to enjoin the defendant railroads from com­
plying with the Oklahoma “ Separate Coach Law” 
for the reason, among others, that it violated the 
Fourteenth Amendment. This Court, while it 
concluded that certain provisions of the law were 
unconstitutional, held that the complainants were 
not entitled to the relief sought because they did 
not show any injury to themselves (235 U. S. at 
162, 164) :

The desire to obtain a sweeping injunction 
cannot be accepted as a substitute for com­
pliance with the general rule that the com­
plainant must present facts sufficient to 
show that his individual need requires the 
remedy for which he asks. The bill is 
wholly destitute of any sufficient ground 
for injunction and unless we are to ignore 
settled principles governing equitable re­
lief, the decree must be affirmed.

We conclude, therefore, that the Court has un­
doubted power in these cases to enter such decrees 
as it determines will be most effective and just 
in relation to the interests, private and public, af­
fected by its decision.
Virginia, 6 Wheat, 264, 399. And see Armour <& Go. v. 
Wantoc/c, 323 U. S. 126, 132-133.



168

Y

IF THE COURT HOLDS THAT RACIAL SEGREGATION IN 
PUBLIC SCHOOLS IS UNCONSTITUTIONAL, IT SHOULD 
REMAND THESE CASES TO THE LOWER COURTS W ITH  
DIRECTIONS TO CARRY OUT THIS COURT'’S DECISION 
AS SPEEDILY AS THE PARTICULAR CIRCUMSTANCES 
PERMIT

Question 5 is:
On the assumption on which questions 

4 (a) and (b) are based, and assuming 
further that this Court will exercise its 
equity powers to the end described in ques­
tion 4 (b ),60

(a) should this Court formulate detailed 
decrees in these cases;

(b) i f  so, what specific issues should the 
decrees reach;

(e) should this Court appoint a special 
master to hear evidence with a view to 
recommending specific terms for such de­
crees ;

60 Question 4 reads as follow s:
“ 4. Assuming it is decided that segregation in public 

schools violates the Fourteenth Amendment
“ (a) would a decree necessarily follow providing that, 

within the limits set by normal geographic school district­
ing, Negro children should forthwith be admitted to schools 
o f their choice, or

“ (b) may this Court, in the exercise o f its equity powers, 
permit an effective gradual adjustment to be brought about 
from existing segregated systems to a system not based on 
color distinctions?”



169

(d) should this Court remand to the 
courts of first instance with directions to 
frame decrees in these cases, and if  so what 
general directions should the decrees of this 
Court include and what procedures should 
the courts of first instance follow in arriv­
ing at the specific terms of more detailed 
decrees ?

This question is predicated on three assump­
tions: (1) that the Court will hold that racial 
segregation in public schools is unconstitutional; 
(2) that it can permit an effective gradual adjust­
ment to be brought about from existing segregated 
school systems to ones not based on color distinc­
tions; and (3) that the Court will exercise its 
equity powers to that end. The question which 
remains to be considered, therefore, is how the 
decrees in the present cases should be framed so 
as to give effective force to the Court’s ruling on 
the constitutional question and at the same time 
to permit orderly solution of the problems which 
may arise in eliminating existing racial segrega­
tion in public schools.

In this concluding section of the brief, we dis­
cuss (a) the difficulties which may be met in 
carrying out transition to nonsegregated school 
systems, and (b) the various factors which appear 
to be relevant in framing the decrees in the cases 
at bar.



170

A. Obstacles to Integration. In carrying out 
an adjustment from existing segregated school 
systems to new ones not based on color distinc­
tions, the difficulties likely to be encountered fall 
into two groups: (1) those o f an administrative 
nature; (2) those deriving from the fact that 
racial segregation in public schools has been in 
existence for many years in a large part of the 
country.

1. It is not difficult to envisage some of the 
kinds of administrative problems which may arise 
in giving effect to a holding that separate school 
systems are unconstitutional. Such a decision 
will necessarily result in invalidation of provisions 
of constitutions, statutes, and administrative regu­
lations in many states. In many areas existing 
boundaries of school districts may require exten­
sive revision. School authorities may wish to give 
pupils a choice of attending one of several schools, 
a choice now prohibited. Schools may have to be 
consolidated, teachers and pupils transferred, 
teaching schedules revised, and transportation ar­
rangements altered. In jurisdictions (e. g., South 
Carolina, District of Columbia) where by statute 
the allocation of public school funds depends on 
the relative number of Negro and white children 
of school age, changes in the law may be re­
quired.61 In some jurisdictions (e. g., District of 
Columbia, Maryland) it may be necessary to elim-

61 South Carolina Code (1952), §§ 21-251, 21-290; D. C. 
Code (1951 ed .), §§ 31-1110,31-1112.



171

mate duplication of functions arising from the 
existence of separate sets of supervisory and ad­
ministration officials for white and Negro schools.62 
In states (e. g., Mississippi, Texas) which have 
statutory provisions for separate training schools 
for Negro teachers, the law may require amend­
ment.63

It is not unlikely that in many communities, 
particularly where separate white and colored 
residential districts still exist, abolition of segre­
gation would produce no serious dislocations, and 
no wholesale transfers of teachers or pupils would 
occur. This could result from purely geographi­
cal factors, because the pupils of a school ordi­
narily reflect the composition of the population of 
the district in which it is located. The extent of 
the administrative and legal changes required will 
thus vary in the different jurisdictions involved, 
depending on these and other factors which now 
cannot be evaluated or measured. Accordingly, it 
is impossible to determine at this time what spe­
cific period of time would be required to overcome 
the administrative obstacles to sehool integration 
in any particular area.

In this connection it should be noted that fin an - 
cial cost, which wTould play so large a role in any 
program for “ equalization”  of separate schools,

62 D. C. Code (1951 ed .), §§ 31-670, 31-671; Anno. Code of 
Maryland (Flack ed., 1951), Art. 77, §§ 42 (4), 208.

63Mississippi Code (1942 ed.), Art. 15, §§ 6808-6811; Ver­
non’s Texas Civil Statutes, title 49, cli. 8.



172

furnishes no substantial obstacle to integration. 
As the Attorney General o f Virginia stated in his 
brief on the merits filed last term in No. 4 (p. 21), 
“ It is crystal clear that segregation is more expen­
sive than amalgamation.”  It has been estimated 
that a capital outlay of as much as 2 billion dollars 
might be required in order to make the separate 
public schools for Negroes “ equal” , in a physical 
sense, to those now maintained for white pupils. 
On the basis of the 1949-50 level of per capita 
current expenditure for Negro pupils in the sep­
arate school areas, it has been estimated that it 
would take an additional $134,824,000 to bring the 
Negro expenditure up to that for the white pupils, 
an increase of almost 70 per cent. To raise the 
cost of transporting Negro pupils at the 1949-50 
level to a par with that of transporting white 
pupils would entail an additional $55,574,582“

An additional economic consideration favoring 
integration results from recent changes in the 
number and relative proportion of Negroes in the 
areas which maintain separate public schools for 
colored children. During the last decade there 
have been significant changes in the distribution 64

64 These estimates have been made by the Office o f Educa­
tion, Department of Health, Education and Welfare, on the 
basis o f data contained in Statistics of State School Systems 
1949-1960, being chapter 2 o f the Biennial Survey of Edu­
cation in the United States (1948-1950), published by the 
Office of Education, and in the article School Building Unit 
Costs about to be published in School Life, an organ o f the 
Office o f Education.



173

of the Negro population of the country.65 There 
has occurred a significant shift of Negroes from 
the Southern to the Northern, Central, and West­
ern States. A  decline in the number and propor­
tion o f Negroes in the population has taken place 
in West Virginia, Georgia, Kentucky, Alabama, 
Mississippi, Arkansas, and Oklahoma. The Mid­
dle Atlantic, East North Central, and Pacific 
States had the most appreciable increases in their 
Negro population, and the percentage increases 
for Negroes far exceeded those of the white 
population.66

The financial burden of maintaining “ separate 
but equal”  public schools becomes increasingly 
onerous and unjustifiable as the Negro population 
in a particular area decreases. A  community re-

65 See S. Doe. No. 14, 83d Cong., 1st Sess., pp. 4-8.
66 Ibid. The following table taken from data published 

by the Bureau o f the Census shows the changes in Negro 
population in 17 Southern and border states and the Dis­
trict o f Columbia:

1940 1950

N on-whites Percent
non-w hite N on-w hites Percent

non-w hite

D elaw are__________________ 35,977 13. 5 44, 207 13.9
M aryland_______  ______ 302, 763 16.6 388,014 16.6
D istrict of C olum bia______ 188, 765 28.5 284, 031 35.4
Virginia_____ ______________ 662,190 24.7 737, 038 22.2
W est V irginia_____________ 117, 872 6.2 115,268 5.7
N orth  Carolina____________ 1,003, 988 28.1 1, 078, 819 26.6
South Carolina. __________ 815, 496 42.9 823, 624 38.9
Georgia________ ___________ 1, 085,445 34.7 1, 064,005 30.9
Florida___________ _____ ____ 515, 428 27.2 605, 258 21.8
K en tu ck y___________ ______ 214, 202 7.5 202, 876 6.9
Tennessee__________________ 508, 935 17.5 531, 468 16.1
Alabam a___________________ 983, 864 34.7 982,243 32.1
M ississippi________________ 1, 077, 469 49.3 990, 485 45,5
Arkansas ________________ 483, 303 24.8 428, 003 22.4
Louisiana__________________ 852,141 36.0 886, 968 33.1
Oklahom a_________________ 232,206 9.9 200, 796 9.0
Texas___ ___________________ 927, 279 14.5 984, 963 12.8
M issouri...... ................. ........... 245, 477 6.5 299, 066 7.6

280315-53- -13



174

quired to support for a handful of Negro chil­
dren a separate school which must be physically 
equal in all respects to the schools it operates for 
white children is, from a purely economic stand­
point, obviously not receiving the most for the 
money it expends for the education of its chil­
dren. The same money, if  expended for inte­
grated schools, would result in greater educational 
benefits for both white and colored children. 
These economic considerations alone go far to in­
dicate the relative feasibility of integration as a 
practical alternative to “ equalization” .

2. Some Southern leaders have expressed the 
view that considerable popular opposition will be 
met in the execution of any program for integra­
tion of public schools. In their opinion, sepa­
ration of the races in the public schools is one 
of the ways of life in the South (see the finding 
of the district court in No. 4, R. 620). They 
predict that popular antagonism to elimination 
of segregation in public schools, arising from a 
traditional hostility to the mingling of the races, 
will most likely be reflected in withdrawal of 
state aid for those schools (see, e. g., the testimony 
of Dr. Colgate W. Darden, R. 452, No. 4). On 
the other hand, the conviction has been expressed 
that these fears are exaggerated and unjustified, 
and that there is no reason to assume that, once 
this Court has authoritatively resolved the con­
stitutional question, the people of the entire coun­



175

try, including the South, will not abide by its 
decision (see e. g., R. 197-198, No. 4).

We believe it would he futile and irrelevant to 
enter into such speculation. Recent years have 
witnessed, on a fairly large scale, an ever-increas­
ing trend towards the elimination of racial segre­
gation and discrimination in all fields and in every 
part of the country. In almost every instance 
this progress has been accomplished without dis­
order or friction. Traditional attitudes on racial 
relations are in process of constant revision, par­
ticularly in the South. As illustrative, we shall 
here describe (a) New Jersey’s successful expe­
rience in integrating segregated public schools in 
the past few years and (b) the notable achieve­
ments of the Armed Forces of the United States 
in carrying out a program of racial integration.67

New Jersey.—Following the adoption in 1947 
of a state constitution expressly forbidding racial 
segregation in the public schools of the state, a 
program for elimination o f segregated schools was 
put into operation. A  survey disclosed that there 
were 43 school districts in New Jersey which 
had one or more separate Negro schools. These 
were located in urban areas, agricultural town­

67 The materials cited in the following portion o f the brief 
were collected by Dr. Ambrose Caliver, Assistant to the 
Commissioner o f Education, Department of Health, Educa­
tion and Welfare.



176

ships, and in some relatively well-to-do suburban 
communities. Practically all the school officials 
and a majority of the school board members con­
cerned did not oppose the program of racial inte­
gration of pupils.

Since many of the communities involved had 
individual problems, no single formula could be 
applied. In a number of districts the existing 
small Negro schools were closed; in others new 
consolidated schools were built. In several com­
munities the Negro elementary schools were con­
verted into intermediate or junior high schools. 
In the larger towns and cities, school districts 
were rezoned and transfer regulations adopted 
that required all pupils to attend the schools 
nearest their homes.

Varying techniques were used for placing white 
children under colored teachers for the first 
time. One device used was as follows: where 
there were two classes of the same grade in a 
particular school, one class was given a white 
teacher, the other, a colored teacher, and a class 
which had a white teacher in the first grade was 
given a colored teacher in the second grade and a 
white teacher in the third grade, and so on. Many 
communities, however, merely placed colored 
teachers in the same grades in the new system that 
they had been teaching in the colored schools, and 
this appeared to work just as effectively.



177

Some school boards made a single formal pub­
lic announcement that the schools under their 
jurisdiction would be integrated; in other dis­
tricts public meetings were sponsored by the 
boards after plans for integration had been for­
mulated and approved. In one community a plan 
for integration over a two-year period was adopt­
ed with the approval of Negro parents. During 
the first year the superintendent of schools con­
ducted public meetings, and integration was com­
pleted by the end of that year.

One of the fears anticipated in many commu­
nities was withdrawal of pupils from the public 
schools and their transfer to parochial or private 
schools. This, however, did not eventuate. In 
one community where a few children were with­
drawn, most of them later reentered the school. 
Parents who objected to having their children 
placed under Negro teachers were requested by 
school officials to give the new system a chance. 
Most of the protests evaporated.

The program was also successfully carried out 
in areas where public opposition might have been 
expected to present a difficult problem. For ex­
ample, in Salem, which is in the southern part 
of the state and directly across the river from 
Delaware, many of the residents were raised and 
educated in the traditions of the South. Salem 
had three schools, two for white children and 
one for colored children. The latter constituted 
approximately one-third of the total enrollment.



178

All three schools were integrated; one of them 
with a colored principal in charge of five white 
teachers. The school superintendent reported 
that this was accomplished without incident or 
friction.

By September 1951, 40 of the 43 school dis­
tricts involved in the New Jersey program wTere 
completely integrated and the remaining three 
districts had taken substantial steps towards in­
tegration. The state official in charge of the 
program summarized the New Jersey experience 
as follows:

While New Jersey cannot furnish any 
one formula, it can testify that complete 
integration in the public schools can and 
will work. It may even be safe to say once 
more, that the way to learn to do a thing 
is to do it, and in this respect, New Jersey 
has proven again that the best way to 
integrate is to do it.68

^Bustard, The New1 Jersey Story: The Development of 
Racially Integrated Public Schools, 21 Journ. of Negro Edu­
cation 275, 285 (1952). Other areas where public school 
systems have successfully been integrated include Indianap­
olis, Indiana, Topeka, Kansas, and Tucson, Arizona. In the 
District o f Columbia a program of racial integration is under 
way in the Catholic elementary and secondary schools. The 
Department o f Defense has recently announced that it has 
set the fall of 1955 as its target date for eliminating racial 
segregation in state-operated schools located on federal 
military installations. (New York Times, Atjg. 24, 1953,
p. 21.)

In the field o f higher education, many Southern colleges 
and universities have opened their doors to Negro students. 
There are at least 17 public institutions o f higher learning



179

The Armed Forces.—Racial integration on a 
large scale lias been successfully achieved in the 
Armed Forces. The program for elimination of 
racial segregation and discrimination in the 
Armed Forces had its origin in Executive Order 
No. 9981 of July 26, 1948 (13 F. E. 4313).69 The 
order established the policy “ that there shall be 
equality of treatment and opportunity for all 
persons in the armed forces without regard to 
race, color, religion, or national origin.”  The 
President’s Committee on Equality of Treatment 
and Opportunity in the Armed Forces, which was 
charged with the task of seeing that the policy 
was implemented effectively, found in its report 
of May 22, 1950, “ Freedom to Serve,”  that * 69
in 12 Southern states which now have Negro students. 
Negroes have been admitted to 38 private institutions of 
higher education located in the South and the District of 
Columbia.

69 Executive Order 9980 of July 26,1948,13 F. R. 4311, de­
clared it to be the policy of the Federal Government that all 
personnel actions were to be taken without discrimination 
on accoimt o f race, color, religion or national origin. See 
also 5 C. F. R. 410.1-7 (1952 Supp.) for the regulations im­
plementing this policy. Since 1941, it has been the policy 
o f the Federal Government that there shall be no racial dis­
crimination in employment by Government contractors or 
subcontractors. See Executive Order 9346 o f May 27, 1943, 
8 F. R. 7183, and Executive Order 10479 o f August 15,1953, 
18 F. R. 4899, for enforcement provisions. Since 1938 public 
parks and recreational facilities under the jurisdiction o f the 
Department o f the Interior have been operated on a non-seg- 
regration basis. This policy has been uniformly successful, 
and there have been no untoward incidents o f racial friction.



180

broad programs for racial integration adopted by 
the Navy and the Air Force bad been success­
fully carried out without animosity or incident. 
The following conclusions of the Committee are 
significant (Kept. 44):

Integration of the two races at work, in 
school, and in living quarters did not pre­
sent insurmountable difficulties. As a 
matter of fact, integration in two of the 
services [the Navy and Air Force] had 
brought a decrease in racial friction.

The enlisted men were far more ready 
for integration than the officers had be­
lieved.

The attitude of command was a substan­
tial factor in the success of the racial poli­
cies of the Air Force and the Navy.

In a recent interview, Dr. John A. Hannah, 
Assistant Secretary of Defense, stated that 
“ remarkable progress” had been made in the 
program for ending racial segregation in the 
Armed Forces and that “ In eight months there 
will be no nonintegrated units in the Army” . Dr. 
Hannah also reported that “ Universally the 
answer from our commanders is that it is desir­
able and works out very well in spite of contrary 
predictions,” and that there had been no re­
sistance, violence, or demonstrations. (U. S. 
News & World Report, October 16, 1953, pp. 46, 
99.) The success of integration in the Armed 
Forces furnishes strong evidence of the feasibility 
of integration in other fields, such as public



1 8 1

schools, where contacts are less intimate and 
constant.70

70 Other successful experiences have been reported in such 
fields as industry and labor, housing, the professions, and 
sports. Both the American Federation of Labor and the 
Congress o f Industrial Organizations have consistently op­
posed racial discriminations. In industry, racial differentia­
tions have tended to become less significant. For an account 
o f the successful experience o f the International Harvester 
Company in its plants in Evansville, Louisville, and Mem­
phis, see Selected Studies of Negro Employment in the South: 
3 Southern Plants of International Harvester Company 
(National Planning Association, 1953). The techniques 
utilized in those plants are said to have involved “ a mixture 
o f persuasion, education, and some judiciously applied coer- 
sion.” {Id., p. 50.)

The Federal Housing and Home Finance Agency has re­
ported that racial integration has been on the whole entirely 
satisfactory in 268 public housing projects located in the 
District of Columbia and in 71 other communities. See 
Open Occupancy in Public Housing (Housing and Home 
Finance Agency, Public Housing Administration, 1953). 
Since the ruling by this Court in 1948 that judicial enforce­
ment o f racial restrictive covenants is forbidden by the Con­
stitution, Shelley v. Kra&mer, 334 U. S. 1, there has been a 
growing and substantial dispersal o f Negroes throughout 
residential areas. This has been accompanied by practically 
no friction or disorder. See the survey conducted by the 
United Press and reported in the New York Times, January 
22,1951, p. 19; “ The People of Chicago,” Report of the Chi­
cago Commission on Human Relations for the 5-year period 
1947-1951; Report o f the Toledo Board of Community Rela­
tions, 1951; “ The Transitional Housing Area” , report o f the 
Director o f the Mayor’s Interracial Committee in the city of 
Detroit (1952).

In recent years a number o f Southern law schools and 
medical colleges have relaxed their restrictions against the 
admission o f Negroes. In 1950 the American Medical Associ­
ation adopted a resolution, reaffirmed in 1952, declaring its



182

B. The decrees. On the basis of the foregoing, 
the considerations which appear to be relevant to 
the framing of the decrees in the present cases 
may briefly be summarized as follows:

1. The constitutional right involved in these 
cases is “ personal and present.” The plaintiffs 
can forcefully argue that the only remedy ade­
quate to redress the existing, continuing violation 
of their constitutional rights is to direct their 
admission to nonsegregated schools now and not 
at some future date when such relief would come, 
at least for some of them, too late to have any 
benefits. In the absence of compelling reasons to 
the contrary, vindication of constitutional rights 
should be as prompt and effective as is possible 
in the circumstances.

2. On the other hand, the effects of a decision 
holding school segregation to be unconstitutional 
would not be limited to the areas and parties 
involved in the cases at bar. Such a decision 
would have national significance and consequences. 
As a binding precedent, the Court’s decision would 
entail revision of school laws and procedures in
policy to be against racial qualifications in the admission of 
physicians to its constituent societies. A t the present time 
Negro doctors have been admitted to 27 constituent societies, 
located in southern and border states, which had formerly 
barred Negroes.

The field o f professional sports evidences a striking change 
in racial attitudes. Negroes are now common in the ranks 
o f the professional baseball and football teams. See, gen­
erally, The Integration of the Negro into American Society 
(Howard University Press, 1951).



183

at least seventeen states and the District of 
Columbia. Administrative and other obstacles 
will have to be overcome in order to accomplish 
complete transition to nonsegregated systems. 
The nature and extent of such problems will vary 
throughout the country, and the time required for 
eliminating school segregation in any particular 
community will depend on numerous factors 
which neither this Court nor counsel can now 
evaluate. Regardless whether this Court should 
direct that school integration be carried out 
“ forthwith”  or “ gradually” , a brief period of 
time should be allowed for making necessary 
administrative adjustments.

3. In some places (such as the District of Co­
lumbia, Kansas and Delaware) change-over to a 
nonsegregated system should be a relatively sim­
ple matter, requiring perhaps only a few months 
to accomplish. In such areas, where there are no 
serious administrative or other impediments to in­
tegration, there can plainly be no valid justifica­
tion for delay in ending exclusion of colored chil­
dren from schools which they would otherwise be 
entitled to attend. In other areas, a longer pe­
riod of time may be needed, depending on local 
conditions.

4. Despite a decision by this Court that racial 
segregation in public schools is unconstitutional, 
there will still remain many areas in which, as a 
practical matter, the schools will be attended by



184

at least a preponderance of children of one color. 
This could arise from purely geographical factors, 
even though there is full compliance with the let­
ter and spirit of the decision. There are numer­
ous communities characterized by exclusively 
Negro or white occupancy of particular residen­
tial sections. Even under normal school dis­
tricting drawn on a wholly geographical and 
nonraeial basis, the pupils of a public school in a 
district reflect the racial composition of its popu­
lation. It may reasonably be assumed that this 
factor alone will have considerable effect in many 
areas in reducing the extent of the adjustments 
required by a decision prohibiting racial segrega­
tion in public schools.

5. There is no single formula or blueprint which 
can be uniformly applied in all areas where exist­
ing school segregation must be ended. Local con­
ditions vary, and what would be effective and 
practicable in the District of Columbia, for exam­
ple, could be inappropriate in Clarendon County, 
South Carolina. Only a pragmatic approach 
based on a knowledge of local conditions and 
problems can determine what is best in a partic­
ular place. For this reason, the court of first 
instance in such area should be charged with the 
responsibility for supervision of a program for 
carrying out the Court’s decision. This Court 
should not, either itself or through appointment 
of a special master, undertake to formulate spe­
cific and detailed programs of implementation



adapted to the special needs of particular cases.
6. The burden of (a) showing that, in the par­

ticular circumstances, a decree requiring the im­
mediate admission of the plaintiffs to nonsegre- 
gated schools would be impracticable or inequita­
ble, and,,in that event, of (b) proposing, for the 
court’s approval, an effective program for ac­
complishing transition to a nonsegregated system 
as soon as practicable, should rest on the de­
fendants. As the responsible authorities in charge 
of the public schools, they would be in the best 
position to develop a program most suited to local 
conditions and needs, and to indicate the length 
of time required to put it into effect. In passing 
upon such a program, the lower court could re­
ceive the views not only of the parties but of 
interested persons and groups in the community. 
Such a locally-developed program for orderly and 
progressive transition to nonsegregation would 
tend to encounter less resistance and thus be more 
likely to achieve success.

As has previously been noted (pp. 160-162, 
supra), the decree entered by this Court in United 
States v. American Tobacco Co., 221 U. S. 106, 
furnishes a useful precedent and guide to the dis­
position of the present cases. Adapting the pro­
visions of that decree to the circumstances here 
involved, the Government respectfully suggests to 
the Court that, if  it holds school segregation to be 
unconstitutional, the public interest would be



186

served by entering decrees in the instant cases 
providing in substance as follows:

(1) That racial segregation in public 
schools be decreed by this Court to be a 
violation of rights secured by the Con­
stitution ;

(2) That each case be remandbd to the 
appropriate court of first instance for such 
further proceedings and orders as are 
necessary and proper to carry out the 
Court’s decision;

(3) That the lower courts be directed on 
remand to enter decrees under which the 
defendants shall forthwith be enjoined 
from using race or color as a basis for de­
termining admission of children to public 
schools under their authority or control; 
provided, however, that if the defendants 
show that it is impracticable or inequitable 
to grant the plaintiffs the remedy of imme­
diate (i. e., at the beginning of the next 
school term) admission to nonsegregated 
schools, the court shall order the defend­
ants to propose and, on approval by the 
court after a public hearing, to put into 
effective operation a program for transi­
tion to a nonsegregated school system as 
expeditiously as the circumstances permit;

(4) That for the accomplishment of 
these purposes, taking into view the diffi­
culties which may be encountered, a period 
of one year be allowed from the re­
ceipt of this Court’s mandate, with leave, 
however, in the event, in the judgment o f 
the lower court, the necessities of the situa­



187

tion so require, to extend such period for a 
further reasonable time; and that, in the 
event before the expiration of the period 
thus fixed, a condition in harmony with the 
requirements of the Constitution is not 
brought about, it shall be the duty of the 
lower court to enter appropriate orders, 
by way of injunction or otherwise, direct­
ing immediate admission of the- plaintiffs 
to nonsegregated schools ; and .

(5) That this Court retain jurisdiction 
for the purpose of making such further 
orders and decrees, if  any, as may become 
necessary for . carrying out its mandate.

. . CONCLUSION

In response to the questions stated in the 
Court’s order directing reargument of these 
cases, the United States-respectfully submits (1) 
that the primary and pervasive purpose of the 
Fourteenth Amendment, as is shown by its history 
and as has repeatedly been declared by this Court, 
was to secure for Negroes full and complete 
equality before the law and to abolish all legal 
distinctions based on race or color; (2) that the 
legislative history of the Amendment in Congress 
is not conclusive; (3) that the available ma­
terials relating to the ratification proceedings in 
the various state legislatures are too scanty and 
incomplete, and. the specific references to school 
segregation too few and scattered, to justify any 
definite conclusion as to the existence of a general 
understanding in such legislatures as to the effect



188

which the Amendment would have on school seg­
regation; (4) that it is within the judicial power 
to direct such relief as will be effective and just 
in eliminating existing segregated school systems; 
and (5) that if the Court holds that laws provid­
ing for separate public schools for white and 
colored children are unconstitutional, it should
remand the instant cases to the lower courts with
directions to carry out the Court’s decision as 
expeditiously as the particular circumstances per­
mit, as indicated supra.

Respectfully submitted.
H erbert B r o w n e l l , Jr.,

Attorney General.
J. L ee  R a n k i n ,
Assistant Attorney General. 

P h il ip  E l m a n ,
Special Assistant to the Attorney General. 

L eo n  U l m a n ,
W il l ia m  J . L a m o n t ,
D avid  0 .  W alter ,
M . M ag d alen a  S c h o c h , 
J oseph  A. M u l l in ,
J o h n  J . C otjnd,

Attorneys.*
N ovem ber  1953.

*Reginald W. Barnes and Arthur L. Biggins, attorneys 
in the Department of Justice, also assisted in the historical 
research.

U, s . GOVERNMENT PR INTING OFFICEi 1983