Davis v. Prince Edward County, VA School Board Appellants' Brief Opposing Motion to Dismiss or Affirm

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October Term, 1951

No.

D orothy E . D avis, B ertha M. D avis and I nez D. D avis, 
infants, by John Davis, their father and next friend, 
et al.,

vs.
Appellants,

Cou nty  S chool B oard oe P rince E dward C ounty , V irginia, 
and T. J. M cI lw ain e , Division Superintendent of 
Schools of Prince Edward County, Virginia, et al.,

Appellees.

A ppeal from  th e  U nited S tates D istrict C ourt for the 
E astern D istrict of V irginia , R ich m o n d  D ivision

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS OR AFFIRM

R obert1 L. Carter,
Oliver W. H ill ,
T hurgood M arshall ,
S pottswood W. R obinson, III, 

Counsel for Appellants.
J ack  Greenberg,
J ames M. N arbit,
J ack  B . W ein stein ,

of Counsel.

Supreme Printing Co., Inc., 41 M urray Street, N. Y., BArclay 7-0349



(tart nf Hip llutti'ft States
October Term, 1951 

No.

D orothy E . D avis, B ertha M. D avis and I nez D. D avis, 
infants, by John Davis, their father and next friend, 
et al.,

Appellants,
vs.

County  S chool B oard of P rince E dward C o u nty , V irginia , 
and T. J. M cI lw ain e , Division Superintendent of 
Schools of Prince Edward County, Virginia, et al.,

Appellees.

A ppeal from  the  U nited S tates D istrict C ourt for the  
E astern D istrict of V irginia , R ichm ond  D ivision

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS OR AFFIRM

Appellees oppose review by this Court and in the alter­
native seek an affirmation of the judgment below on the 
grounds that the issues raised in this appeal have been 
settled by prior decisions of this Court. They argue, 
therefore, that this appeal presents no substantial federal 
questions. In support of their view, appellees rely upon 
Plessy v. Ferguson, 163 U. S. 537; Cumming v. Board of 
Education, 175 U. S. 528; Gong Lum v. Rice, 275 U. S. 78; 
Missouri ex rel. Gaines v. Canada>, 305 U. S. 337; Briggs 
v. Elliott, 98 F. Supp. 529 (E. D. S, C. 1951); and Roberts 
v. City of Boston, 5 Cush. (Mass.) 198.

We submit that the very fact that this Court did not 
dismiss the appeal or affirm the judgment of the court 
below in Briggs v. Elliott, 342 U. S. 350, although there 
urged to do so on much the same grounds as is argued 
here, but rather vacated the judgment and remanded the



2

cause to give the lower court opportunity to consider addi­
tional evidence presented by defendants is a sufficient indica­
tion that appellees’ contentions are untenable.

Further, even when Plessy v. Ferguson, supra; Cum- 
ming v. Board of Education, supra; Gong Lum v. Bice, 
supra; and Missouri ex rel. Gaines v. Canada, supra, are 
considered in the light most favorable to appellees, it is 
clear that they fail to support appellees’ contention that 
the judgment below should be affirmed or that appeal there­
from should be dismissed. On the contrary, they are in 
definite support of appellants’ position that the maintenance 
of segregated schools in Prince Edward County, Virginia, 
is an unconstitutional deprivation of appellants’ rights. 
For in all of these cases, approbation of the state’s policy 
of racial segregation is squarely conditioned upon the 
equality of the facilities offered the segregated group. Here 
the segregated high school facilities provided for appel­
lants are admittedly inferior to those available to white 
students with respect to curricula, means of transportation, 
buildings and equipment. Adopting a construction most 
favorable to appellees, the rationale of those cases, in the 
light of the findings in the court below, would clearly re­
quire that the state’s practice of racial segregation in 
Prince Edward County be condemned as an unconstitutional 
deprivation of appellants’ rights, and that appellants be 
adjudged free to attend public schools in Prince Edward 
County without restrictions based upon race or color.

Further, neither the Cumming case nor the Gong Lum 
case can be cited in support of the “ separate but equal”  
doctrine upon which appellees’ contentions are based. In 
the Cumming case at pages 543, 544, the Court specifically 
stated that no issue was raised in the pleadings concern­
ing the constitutionality of racially segregated schools 
although that issue was raised in oral argument. Under 
those circumstances the Court refused to consider that 
issue on the grounds that it had to dispose of the case) 
as presented on the record. The Gong Lum case involved



3

only the power of a state to classify Chinese as colored 
persons and no question was raised concerning the power 
of the state to adopt and enforce a racial classification 
itself, which is the specific question presented in this appeal.

In the Gaines case, the “ separate but equal”  doctrine 
was mentioned, but in its decision, the Court held that it 
was denial of equal protection to provide educational ad­
vantages for white persons and deny these advantages to 
Negroes, and specifically conditioned the validity of racial 
segregation laws upon the equality of the provisions pro­
vided the segregated group.

Plessy v. Ferguson, supra, squarely holds that separate 
intrastate transportation facilities for Negroes meet the 
requirements of the Fourteenth Amendment as long as 
these facilities are equal. However, the holding of that 
case as it affects transportation has been seriously 
weakened by the decision of this Court in Morgan v. 
Virginia, 328 U. S. 373, and in Henderson v. United States, 
339 U. S. 816. Certainly, since this Court has decided 
cases affecting this question in the field of education, the 
Plessy case cannot be considered the controlling authority 
for the purpose of this appeal.

As pointed out in appellants’ Statement as to Jurisdic­
tion, the holding of this Court in Sipuel v. Board of Regents, 
332 U. S. 631, that educational facilities must be provided 
for Negro students at the same time that they are offered 
to white students, is clear and conclusive proof that where 
such facilities have not been provided, as here, the state 
has no alternative but to admit appellants to the superior 
facility.

It should be noted that the appellees fail to mention 
or discuss Sweatt v. Painter, 339 U. S. 629, and McLaurin 
v. Board of Regents, 339 U. S. 637, in which the Court, 
after finding that the separate law school facilities in the 
Sweatt case were not equal to those provided for other 
students at the University of Texas, and that the practices



4

of racial segregation within the University of Oklahoma 
deprived McLaurin of equal educational opportunities, 
ordered Sweatt admitted to the University of Texas and 
declared that the state could subject McLaurin only to 
such rules and regulations as were applicable to all other 
students. These cases, while they apply to graduate and 
professional education on their facts, cannot be so re­
stricted with respect to their rationale.

Here appellants have demonstrated that the state re­
quirement that they attend, racially segregated schools 
deprives them of equal educational opportunities which 
they would otherwise obtain in an integrated school system. 
Further it has been found by the court below that in terms 
of curricula, means of transportation, buildings and equip­
ment, the schools that appellants are required to attend 
under the laws of Virginia are inferior to those available 
for white pupils. We submit, therefore, that appellants 
are entitled to a decree declaring the statutes of Virginia 
unconstitutional, and ordering their immediate admission 
to the superior state facilities in Prince Edward County.

CONCLUSION

For the foregoing reasons, appellees’ motion to 
dismiss or affirm should be denied.

Respectfully submitted,

R obert L. Carter,
Oliver W. H ill ,
T hurgood M arshall, 
S pottswood W . R obinson, III, 

Counsel for Appellants.
J ack G reenberg,
J ames M. N arbit,
J ack B. W ein stein ,

of Counsel.