Briggs v. Elliot Brief of the American Federation of Teachers as Amicus Curiae

    JN T H E

(& x m x t  n i  X\\t States

O ctober, T e r m , A. D. 1952.

No. 101

HARRY BRIGGS, JR., et al. 

vs.
Appellants,

R. W. ELLIOTT, Chairman, J. D. CARSON, et al., mem­
bers of Board of Trustees of School District No. 22, 
Clarendon County, S. C., et al.

Appellees.

Appeal from the United States District Court for the 
Eastern District of South Carolina.

BRIEF OF THE AM ERICAN FEDERATION OF 
TEACHERS A S AM ICUS CURIAE.

J o h n  L igtenberg ,
134 N. La Salle St.,

S e lm a  M. B orchardt, Chicago 2, Illinois,
Homer Building, Counsel for American
Washington, D. C., Federation of Teachers,

Of Counsel. Amicus Curiae,

CHAM PL.IN-SHEALY COM PANY, CHICAGO •SOB



I N D E X .

PAGE

Brief of the American Federation of Teachers as
amicus curiae............................    1

Question Presented .......    2
Opinions B elow ....................................     2
Statutes and Constitution Involved........................   2
Statement ........... ..............................................................  2
Summary of Argument............... .......... ............... . . . .  3
Argument:

I. The equalization of the segregated school sys­
tems of the nation is impractical. Since it 
cannot be done effectively, equal protection 
can be achieved only by abolishing segregation 4

II. The Constitution and Statutes of South Caro­
lina providing for segregation of students in 
the public schools, violate the requirements of 
the equal protection clause of the Fourteenth 
Amendment. The doctrine of “ separate but
equal” facilities is falacious ........................... 6

III. Segregation in public schools inevitably re­
sults in inferior educational opportunities for
N egroes...............................  .............................  9

IY. Segregation in public schools deprives the 
Negro student of an important element of the 
education process and he is thereby denied the 
equal educational opportunities mandated by 
the Fourteenth Amendment .............................  11

T able op Cases.

Missouri ex rel. Gaines v. Canada, registrar, 305 U. S.
337 .................        7

McLaurin v. Oklahoma State Regents, 339 U. S. 637... 8,9
Oyama v. California, 332 U. S. 633 .......................... 7
Plessy v. Ferguson, 163 U. S. 537  ..................  7



11
Shelley v. Kraemer, 334 IT. S. 1 .................................... 7
Sipuel v. Board of Regents of the University of Okla­

homa, 332 U. S. 631.......................................................  7
Sweatt v. Painter, 339 U. S. 629 ............................ ; . . .  8
Takahashi v. Fish & Game Commission, 332 U. S. 410.. 7

C o n stitu tio n  and  S tatu tes .

See Appellants’ Briefs.

M iscellan eou s .

Forty Eight School Systems, 1949, Council of State 
Governments, Francis S. Chase and Edgar L. 
Morphet, pp. 192,194 .................................................. 5

Hamilton & Mort, The Law and Public Education,
Ch, 1 , ..............................................................................  4

Inventory of Public School Expenditures, John K.
Norton and Eugene S. Lawler, 1944 Yol. 2, p. 293 ft.. 5

Lewin, Kurt, “ Resolving Social Conflicts,” pp. 174 and
214, Harper & Bros., 1948 ............................................  12

National Survey of the Higher Education of Negroes,
Vol. 1 ..............................................................................  10

Negro Year Book, Tuskegee Institute, 1947. “ The 
Negro and Education,” p. 56. W. Harden Hughes.. 9

Public School Expenditures, Dr. John Norton and Dr. 
Eugene S. Lawler, American Council on Education,
1944 ................................................................................  10

Socio-Economic Approach to Educational Problems, 
Misc. No. 6, Vol. 1, p. 1, Federal Security Agency,
U. S. Office of Education, Wash., 1942 ....................  10

Statistics of State School Systems, 1947-1948, Federal
Security Agency, Gov’t, Printing Office....................... 5

The Black & White of Rejections for Military Service, 
American Teachers Assn. Studies, ATA Mont­
gomery, Ala., 1944 .................      10

The Legal Status of the Negro (p. 134), Charles S. 
Mangum, Jr., Chapel Hill University of N. C. Press,



IN THE

Bnpvvnw Glmirt ni \\\z BtnU&
October T erm , A. D. 1952.

No. 101

HAERY BRIGGS, JR., et al.

vs.
Appellants,

R. W. ELLIOTT, Chairman, J. D. CARSON, et al., mem­
bers of Board of Trustees of School District No. 22, 
Clarendon County, S. C., et al.

Appellees.

Appeal from the United States District Court for the 
Eastern District of South Carolina.

BRIEF OF THE AM ERICAN FEDERATION OF 
TEACHERS AS AMICUS CURIAE.

The American Federation of Teachers submits this brief 
as amicus curiae in view of the great importance to de­
mocracy and the cause of education of the constitutional 
issue involved in this case.



2

Opinions Below,

Constitution and Statute Involved,

The opinions below and the constitution and statute in­
volved are set out in the brief of the appellants.

Question Presented.

I .

Whether the legally enforced racial segregation in the 
public schools of South Carolina denies the Negro children 
of the state the equality of educational opportunity re­
quired under the equal protection clause of the Fourteenth 
Amendment.

I I .

Whether the “ separate but equal”  schools decreed by 
the District Court can be enforced in a segregated society.

Statement.

In appellants brief, pp. 2-9, is a full statement of the 
case.

The constitution and statutes of South Carolina require 
the segregation of the races in the public schools. These 
legal requirements are enforced in the defendant school 
district by maintaining separate schools for white children 
and colored children. The Appellees defend these sep­
arate schools as a valid exercise o f the state’s legislative 
power.



3

The statutory three judge court held, with one judge 
dissenting, that neither the constitutional nor statutory 
provisions requiring segregation in the public schools 
were in violation of the Fourteenth Amendment. The 
court also found that the educational facilities offered ap­
pellants were not equal to those offered white children, and 
ordered that equalization of educational opportunity be 
put into effect.

It appears that South Carolina is 'taking steps to equalize 
educational opportunities for Negro children. At a sec­
ond hearing the court found “ equalization”  had not been 
achieved, but still refused to enjoin the practice of segre­
gated schools.

Hence, the issue remains, whether equalization is per se 
a denial of equal protection of the laws.

Summary of Argument.

In this brief amicus curiae the American Federation of 
Teachers will argue that in a segregated school system, 
equality of educational opportunity is impossible of 
achievement; - that the attempt to enforce a system of 
“ separate but equal”  facilities would meet with endless 
difficulties and would defeat its own ends; that in any 
event segregation in the schools violates basic educational 
principles; and that Negroes forced by state law to attend 
segregated schools are denied the equal protection of the 
laws.



4

A R G U M E N T .

I .

The equalization of the segregated school systems of the 
nation is impractical. Since it cannot be done effectively, 
equal protection can be achieved only by abolishing seg­
regation.

In the United States, education is usually conceived as a 
state function, and as such the concern of all the people. 
In all the states there is a measure of central control and 
the states carry out some of the operations of broad scope 
such as institutions of higher learning and teacher train­
ing. Aside from such specific functions, usually a wide 
range of responsibility is assigned to local agencies.1

In practice the local educational program is carried out 
through school districts, generally having a small terri­
torial extent, but with wide discretionary powers.

With regard to territorial extent, the typical school dis­
trict covers a city and sometimes some adjacent territory. 
In rural areas, the usual school district covers a congres­
sional township or a comparable area. In a few states, 
districts are county wide. As a result there are hundreds 
and even thousands of districts in each state.

This describes the national scene and conditions in the 
seventeen states having laws requiring segregated schools.

The pattern holds good for South Carolina. In 1947-48 
there were 3399 elementary schools and 486 high schools.

1 Hamilton and Mart, The Law and Public Education, 1941, Ch. 1.



5

These 3885 schools were operated by 1680 separate schoul 
districts.2

In proportion to population and geographic size the same 
holds true for the seventeen states which maintain sepa­
rate schools. The same authorities give the number of 
school districts in 1947-1948 in these states as follows:

Alabama ....................
N um ber of School D istricts 

........................... 108
Arkansas ............... .......................... 1589
Delaware . . . . . . . . . ........................... 126
Florida ................... ........................... 67
G eorgia................... ..........................  189
Kentucky ............... ..........................  246
Louisiana ............... ............. ............. 67
Maryland ................ ...........................  24
Mississippi............... ........... ...............4211
Missouri .................... .......................... 8422
Oklahoma . . ............. .......................... 2669
North Carolina . . .  . ..........................  172
South Carolina . . . . . .................... .. .1680
Tennessee . . . . . . . . . ..........................  150
Texas .......................... .......................... 4832
Virginia .................... ..........................  125
West V irgin ia ......... ..........................  55

The total school population of these states is approxi­
mately 30% of the nation’s total.3

There are many variable and imponderable factors that 
go into the evaluation of a school system. Comparisons 
inevitably lead to contrasts. Every school district pre­
sumably has the best schools it can afford. In a segre­
gated system the dominant group naturally does not slight

2 Forty Eight School Systems, 1949 Council of State Governments, 
Francis S. Chase and Edgar L. Morphet, pp. 192, 194. See also Statis­
tics of State School Systems, 1947-1948, Federal Security Agency; Govt. 
Printing Office.

3 Inventory of Public School Expenditures in the U. S. John K. 
Norton and Eugene S. Lawler, 1944, Vol. 2, p. 293 ff.



6

its own children, particularly when funds are not avail­
able to provide the best for all.

In resolving the Constitutional issue of segregated 
schools the court must take into account not only the case 
before it but the wider impact of its decision.

For example it might be possible for the Court to en­
force equality in District No. 22, Clarendon County, S. C. 
But when this policing is multiplied by the 1680 districts 
in the state, and multiplied again by the districts in the 
sixteen other states the task appears monumental and in­
deed impossible. Only by striking down the system of 
segregation itself can equality be achieved and discrimi­
nation swept away.

The court has said that the rights guaranteed by the 
Fourteenth Amendment are “ personal and present” . The 
children of the present will have but little personal satis­
faction in awaiting the results of equalization litigation 
in the thousands of school districts involved. Fortunately 
the remedy, though painful to some, is simple.

I I .

The Constitution and Statute of South Carolina providing 
for segregation of students in the public schools, violate 
the requirements of the equal protection clause of the 
Fourteenth Amendment. The doctrine of “ separate but 
equal”  facilities is fallacious.

The Fourteenth Amendment to the Constitution, in 
Section 1, provides:

“ All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein 
they reside. No state shall make or enforce any law



7

which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State.de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

The Fourteenth Amendment made Negroes citizens of 
the United States and was intended further to protect 
them fully in the exercise of their rights and privileges. To 
make sure that this intent wTas fully known, Congress re­
fused to readmit Southern States or seat their represen­
tatives until the states accepted the Fourteenth Amend­
ment.

Its adoption, however, did not stop the practice of segre­
gation in the Southern States and the idea of separate but 
equal facilities came into being.

Plessy v. Ferguson, 163 U. S. 537, 550, (1896) 
Missouri ex rel. Gaines v. Canada, registrar, 305 

U. S. 337, 349.

Recent decisions of this Court enunciate principles in 
conflict with the rationale of the Plessy and Gaines cases. 
These include: Takahashi v. Fish & Game Commission, 
332 U. S. 410; Oyama v. California, 332 U. S. 633, 640, 646 
(1948); Sipuel v. Board of Regents of the University of 
Oklahoma, 332 U. S. 631 (1948); Shelley v. Kraemer, 334 
U. S. 1 (1948).

In the Shelley case, this court, in considering private 
agreements to exclude persons of designated race or color 
from the use or occupancy of real estate for residential 
purposes and holding that it was violative of the equal 
protection clause of the Fourteenth Amendment for state 
courts to enforce them said (at p. 23):

“ The historical context in which the Fourteenth 
Amendment became a part of the Constitution should



8

not be forgotten. Whatever else the framers sought to 
achieve, it is clear that the matter of primary concern 
was the establishment of equality in the enjoyment of 
basic civil and political rights and the preservation 
of those rights from discriminatory action on the part 
of the States based on considerations of race or color. ’ ’

These principles cast doubt on the soundness of the rule 
laid down in the Plessy and Gaines cases. We submit that 
it should no longer be followed.

Nowhere has the fallacy of the doctrine of “ separate 
but equal”  facilities been more apparent than in the grade 
and high schools of the country. Elsewhere, in this brief 
we shall point out the sociological effects of this practice.

In SweaM v. Painter, 339 U. S. 629, 70 S. Ct. Rep. 848 the 
court held that a separate law school established by Texas 
for Negro students could not be the equal of the Univer­
sity of Texas Law School.

In McLaurin v. Oklahoma State Regents, 339 U. S. 637, 
70 S. Ct. Rep. 851 the court held that the requirements of 
state law that the instruction of a Negro graduate student 
in the University of Oklahoma “ upon a segregated basis” 
deprived the appellant in that case of his personal and 
present right to the equal protection of the laws.

There is no reason in experience for applying a different 
logic to children in grade and high schools. As the court 
there said, Our society grows increasingly complex and 
our need for trained leaders increases correspondingly.

We cannot give separate training to two segments of 
society and then expect that some magic will merge the in­
dividual from these segments into equal citizens having 
equal opportunities.

It is a mockery to say that those who aspire to teach and 
lead must have equal opportunity regardless of race, and 
still condemn those they are to teach and lead to inequality.



9
Ninety years of segregated schools demand the historical 

judgment that separate facilities are inevitably unequal 
and are not the way to equal opportunity.

In the segregated school system the growing citizen 
never has the chance to show his equal ability; he never 
has the

“ opportunity to secure acceptance by his fellow stu­
dents on his own merits.”  McLaurin v. Oklahoma State 
Regents, 339 U. S. 637, 641.

He must wait until he has finished what schooling he gets 
before he enters the competition. For him “ the personal 
and present right to the equal protection of the laws”  is 
of as great practical importance as for the graduate stu­
dent.

The Fourteenth Amendment is not for law students and 
post-graduates alone. It is meaningless if it does not ap­
ply to all.

I I I .

Segregation in public schools inevitably results in inferior 
educational opportunities for the Negro.

Commenting on the study of Dr. John Norton and Dr.
Eugene Lawler—Public School Expenditures (1944) W.
Harden Hughes states:

The contrasts in support of white and Negro schools 
are appalling . . . the median expenditure per standard 
classroom unit in schools for white children is $1,160 
as compared with $476 for Negro children. Only 
2.56% of class rooms in the white schools fall below 
the $500 cost level while 52.59% of the class rooms 
for Negro children are below this level.” 1

1 Negro Year Book, Tuskegee Institute 1947. "The Negro and Educa­
tion.” W. Harden Hughes, p. 56.



“ The state supported institutions of higher learning 
for Negroes are far inferior”  states Charles S. Man- 
gum, Jr., “ to their sister institutions for whites. Most 
of the inequalities which have been noted herein with 
respect to the public schools for whites and Negroes 
are also present in the Negro normal and technical 
schools. . . . There is hardly one among them that 
could compare with any good white college in the same 
area.”  2

Several recent studies,3 4 as well as many previous 
ones, all indicate the great disparity between the educa­
tional opportunities afforded white youth and those of­
fered to the Negro youth in the states where a segregated 
and discriminatory system of education prevails.

So obvious are the inequalities that in Vol. 1 of the Na­
tional Survey of the Higher Education of Negroes we find 
this statement: “ No one with a knowledge of the facts 
believes that Negroes enjoy all the privileges which Ameri­
can democracy expressly provides for the citizens of the 
U. S. and even for those aliens of the white race who reside 
among us. The question goes much deeper than the Negro 
citizens’ legal right to equal educational opportunity. The 
question is whether American democracy and what we like 
to call the American way of life, can stand the strain of 
perpetuating an undemocratic situation; and whether the 
nation can bear the social cost of utilizing only a fraction 
of the potential contribution of so large a portion of the 
American population.*

2 The Legal Status of the Negro (p. 134), Charles S. Mangum, Jr., 
Chapel Hill University of N, C. Press, 1940.

See Public School Expenditures, Dr. John Norton and Dr. Eugene S. 
Lawler, American Council on Education, 1944.

3 The Black & White of Rejections for Military Service, American 
Teachers Assn., Studies, ATA Montgomery, Ala., 1944; Public School 
Expenditures in the U. S., Dr. John K. Norton and Dr. Eugene S. 
Lawler; American Council on Education, Wash., D. C., 1944; Journal of 
Negro Education, Summer 1947.

4 Socio-Economic Approach to Educational Problems, Misc. No. 6, 
Vol. 1, p. 1, Federal Security Agency, U. S. Office of Education, Wash., 
1942.



The Constitution is a living instrument, and a “ separate 
but equal”  doctrine based upon antiquated considerations, 
should not, at this time, and in this advanced era, he per­
mitted to perpetuate a situation which denies full equality 
to Negroes in the pursuit of education.

I V .

Segregation in public schools deprives the Negro student 
of an important element of the education process and he 
is thereby denied the equal educational opportunities 
mandated by the Fourteenth Amendment.

The practice of segregation in the field of education is 
a denial of education itself. Education means more than 
the physical school room and the books it contains, and the 
teacher who instructs. It includes the learning that comes 
from free and full association with other students in the 
school. To restrict that association is to deny full and 
equal opportunities in the learning process. To restrict 
that association is to deny the constitutional guarantee.

Psychologists show us that learning is an emotional as 
well as an intellectual process: that it is social as well as 
individual, and is best secured in an environment which 
encourages and stimulates the best effort of the individual 
and holds out the hope that this best effort will be accepted 
and used by society.

This point is argued at length in appellants ’ brief. There­
fore, we do no more than summarize the opinions of edu­
cators here.

In every situation there is the inter-relation of the indi­
vidual to his group—which is one that increases with his 
maturity. First it is the family, then the local community,



12

then the state, the nation, and finally the entire world. At 
no stage of development should any barriers be erected to 
prevent the individual from moving from a narrower group 
to a larger one, particularly barriers on race. As Lewin 
states:

“ The group to which an individual belongs is the 
ground on which he stands, which gives or denies him 
social status, gives or denies him security and help. 
The firmness or weakness of this ground might not be 
consciously perceived, just as the firmness of the physi­
cal ground on which we tread is not always thought 
of. Dynamically, however, the firmness and clearness 
of this ground determine what the individual wishes 
to do, what he can do, and how he will do it. This is 
equally true of the social ground as of the physical.” 5

If education can be made available to all so that each may 
develop to the fullest and give his contribution to society, 
we will find a peaceful way—rather than one of human de­
struction and tragedy—to bring freedom and justice to 
peoples.

The American Federation of Teachers believes that seg­
regated and discriminatory education is undemocratic and 
contrary both to sound educational development as well as 
to the basic law of the land—the United States Constitu­
tion. We subscribe to the principle that democratic educa­
tion provides a total environment which will enable the in­
dividual to develop to his capacity, physically, emotionally, 
intellectually and spiritually.

For such training to be fully effective, it is essential that 
each individual participate, without barriers of race, creed, 
or national origin, as a full fledged member in the home, 
the community, the state and the nation.

'  Kurt Lewin, “Resolving Social Conflict,” p. 174, Harper & Bros.,



13

Accordingly, any restriction, particularly in the form of 
segregated and discriminatory schooling, which prevents 
the interplay of ideas, personalities, information and atti­
tudes, impedes a democratic education and ultimately pre­
vents a working democracy.

Conclusion.

Segregation of Negroes in public schools in any of our 
States inevitably results in depriving Negroes of educa­
tional opportunities provided by those States for white 
citizens. Negroes in such States are thereby denied the 
equal protection of the laws mandated by the Fourteenth 
Amendment. This Court should end these violations of 
the constitutional mandate by reversing the judgment in 
this case and granting the appellants the relief they pray 
for.

Respectfully submitted,

J o h n  L igtenberg ,
134 N. La Salle Street,

Chicago 2, Illinois,
Counsel for American Federation 

of Teachers, Amicus Curiae.
S elm a  M. B orchardt, 

Of Counsel.