Correspondence from Pamela Karlan to William P. Quigley Re Jones v. Edwards

    &uprmp (Cmtrt of %  Inttefc £>ttxt?$
October Term, 1952

IN  THE

No. 8

Oliver  B ro w n , M rs. R ichard  L aw to n ,
M rs. S adie E m m a n u e l , et al.,

Appellants,
vs.

B oard of E ducation  of T opeka , S h aw n ee  
Co u n ty , K ansas, et al.

A ppeal  from  th e  U nited  S tates D istrict C ourt for th e  
D istrict  of K ansas

BRIEF FOR APPELLANTS

R obert L . Carter,
T hurgood M arsh all , 
S pottswood W. R obinson , III, 
C harles S. S cott,

Counsel for Appellants.

W illiam  T. Colem an , Jr.,
J ack  Greenberg,
G eorge E . C. H ayes,
G eorge M. J ohn son ,
W illiam  R . M ing , J r .,
C onstance B aker  M otley,
J am es M. N abrit, J r .,
F ran k  D . R eeves,
J o h n  S cott,
J ack  B. W ein stein ,

of Counsel.



TABLE OF CONTENTS

PAGE

Opinion Below ...............................................................
Jurisdiction ....................................................................
Questions Presented ......................................................
The Law of Kansas and the Statute Involved.............
Statement of the Case ..................................................
Specifications of Error ...................................................
Summary of Argument..................................................
Argument .........................................................................

I. The State of Kansas in affording opportunities 
for elementary education to its citizens has no 
power under the Constitution of the United 
States to impose racial restrictions and distinc­
tions .....................................................................

1
1

2
2

3
4
5
6

6

II. The court below, having found that appellants 
were denied equal educational opportunities by 
virtue of the segregated school system, erred
in denying the relief prayed................................ 8

Conclusion........................................................................ 13

Table of Cases

Asbury Hospital v. Cass County, 326' U. S. 207 .............  6
Bain Peanut Co. v. Pinson, 286 U. S. 499 ..................... 6
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 2 8 .........  8
Buchanan v. War ley, 245 U. S. 6 0 .................................. 7
Cassell v. Texas, 339 U. S. 282 .......................................  8
Cartwright v. Board of Education, 73 K. 32, 84 P. 383 

(1906) ........................................................................... 2



Dominion Hotel v. Arizona, 249 U. S. 265 ....................  6
Edwards v. California, 314 U. S. 160 ............................  7
Ex parte Endo, 323 U. S. 283 ......................................  7
Fisher v. Hurst, 333 U. S. 147 ....................................... 7
Gong Lum v. Bice, 275 U. S. 7 8 ......... ..............5,10,11,12
Hill v. Texas, 316 U. 8. 400 ...........................................  8
Hirabayashi v. United States, 320 U. S. 81 ................ 7
Knox v. Board of Education, 54 K. 152, 25 P, 616

(1891) ........................................................................... 2
Korematsu v. United States, 323 U. S. 214 ................... 7
Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 .. 6
McLaurin v. Board of Begents, 339 U. S. 637 . . . .  6, 7, 8,10,

11,12,13
Metropolitan Casualty Insurance Co. v. Brownell, 294

U. S. 580 .......................................................................  6
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 .........  12
Morgan v. Virginia, 328 U. S. 373 ............................  7
Nixon v. Condon, 286 U. S. 7 3 .......................................  7
Oyama v. California, 332 U. S. 633 ................................ 7
Pierre v. Louisiana, 306 U. S. 354 ...................... 8
Plessy y. Ferguson, 163 U. S. 537 ............................ 5,10,11
Bailway Mail Association v. Corsi, 326 U. S. 8 8 .........  8
Bowles v. Board of Education, 76 K. 361, 91 P. 88 

(1907) ........................................................................... 2
Shelley v. Kraemer, 334 U. S. 1 .................................... 7, 8
Shepherd v. Florida, 341 U. S. 5 0 ............................... 7
Sipuel v. Board of Begents, 332 U. S. 631 ....................  8
Skinner v. Oklahoma, 316 U. S. 535 ............................  7
Smith v. Allwright, 321 U. S. 649 .................................. 8
Sweat! v. Painter, 339 U. S. 629 ........... 6, 7, 8,10,11,12,13

11

PAGE



I l l

PAGE

Takahaslii v. Fisk and Game Commission, 334 U. S.
410 ................................................................................. 7

Thurman-Watts v. Board of Education, 115 K. 328, 222 
P. 123 (1924) ................................................................  2

Webb v. School District, 167 K. 395, 206 P. 2d 1066
(1949) .................................................................   2

Woolridge, et al. v. Board of Education, 98 K. 397,
157 P. 1184 (1916) .......................................................... 2

Yick Wo v. Hopkins, 118 II. S. 356 ................................ 7



IN  THE

(Emtrt of tho luttth
October Term, 1952 

No. 8

o-
Oliver  B ro w n , M rs. R ichard  L aw to n ,

M rs. S adie E m m a n u e l , at al.,
Appellants,

vs.

B oard op E ducation  op T opeka, S h aw n ee  
C o u n ty , K ansas, et al.

A ppeal  prom  th e  U nited  S tates D istrict Court por th e  
D istrict op K ansas

----------------------o----------------------

BRIEF FOR APPELLANTS

Opinion Below
The opinion of the statutory three-judge-District Court 

for the District of Kansas (R. 238-244) is reported at 98 
F. Supp. 797.

Jurisdiction

The judgment of the court below was entered on August 
3, 1951 (R. 247). On October 1, 1951, appellants filed a 
petition for appeal (R. 248), and an order allowing the 
appeal was entered (R. 250). Probable jurisdiction was 
noted on June 9, 1952 (R. 254). Jurisdiction of this Court 
rests on Title 28, United States Code, §§ 1253 and 2201(b).



2

Questions Presented

1. Whether the State of Kansas has power to enforce 
a state statute pursuant to which racially segregated public 
elementary schools are maintained.

2. Whether the finding of the court below—that racial 
segregation in public elementary schools has the detri­
mental effect of retarding the mental and educational devel­
opment of colored children and connotes governmental ac­
ceptance of the conception of racial inferiority—compels 
the conclusion that appellants here are deprived of their 
rights to share equally in educational opportunities in vio­
lation of the equal protection clause of the Fourteenth 
Amendment.

The Law of Kansas and the Statute Involved

All boards of education, superintendents of schools and 
school districts in the state are prohibited from using race 
as a factor in affording educational opportunities in the 
public schools within their respective jurisdictions unless 
expressly empowered to do so by statute. Knox v. Board 
of Education, 54 K. 152, 25 P. 616 (1891); Cartwright v. 
Board of Education, 73 K. 32, 81 P. 382 (1906); Bowles 
v. Board of Education, 76 Iv. 361, 91 P. 88 (1907); Wool- 
ridge, et al. v. Board of Education, 98 K. 397, 157 P. 1184 
(1916); Thurman-Watts v. Board of Education, 115 K. 
328, 222 P. 123 (1924); Webb v. School District, 167 K. 395, 
206 P. 2d 1066 (1949).

Segregated elementary schools in cities of the first class 
are maintained solely pursuant to authority of Chapter 72- 
1724 of the General Statutes of Kansas, 1949, which reads 
as follows:

“ Powers of board; separate schools for white 
and colored children; manual training. The board 
of education shall have power to elect their own



3

officers, make all necessary rules for the government 
of the schools of such city under its charge and con­
trol and of the board, subject to the provisions of 
this act and the laws of this state; to organize and 
maintain separate schools for the education of white 
and colored children, including the high schools in 
Kansas City, Kans.; no discrimination on account 
of color shall be made in high schools except as pro­
vided herein; to exercise the sole control over the 
public schools and school property of such city; and 
shall have the power to establish a high school or 
high schools in connection with manual training and 
instruction or otherwise, and to maintain the same 
as a part of the public-school system of said city. 
(G. S. 1868, Ch. 18, § 75; L. 1879, Ch. 81, § 1; L. 1905, 
Ch. 414, §1 ; Feb. 28; R. S. 1923, §72-1724.)”

Statement of the Case

Appellants are of Negro origin and are citizens of the 
United States and of the State of Kansas (R. 3-4). Infant 
appellants are children eligible to attend and are now 
attending elementary schools in Topeka, Kansas, a city 
of the first class within the meaning of Chapter 72-1724, 
General Statutes of Kansas, 1949, hereinafter referred to 
as the statute. Adult appellants are parents of minor 
appellants and are required by law to send their respective 
children to public schools designated by appellees (R. 3-4). 
Appellees are state officers empowered by state law to 
maintain and operate the public schools of Topeka, Kansas.

For elementary school purposes, the City of Topeka is 
divided into 18 geographical divisions designated as terri­
tories (R. 24). In each of these territories one elemen­
tary school services white children exclusively (R. 24). In 
addition, four schools are maintained for the use of Negro 
children exclusively (R. 11, 12). These racial distinctions



4

are enforced pursuant to the statute. In accordance with 
the terms of the statute there is no segregation of Negro 
and white children in junior and senior high schools (R. 12).

On March 22, 1951, appellants instituted the instant 
action seeking to restrain the enforcement, operation and 
execution of the statute on the ground that it deprived them 
of equal educational opportunities within the meaning of 
the Fourteenth Amendment (R. 2-7). In their answer, 
appellees admitted that they acted pursuant to the statute, 
and that infant appellants were not eligible to attend any 
of the 18 white elementary schools solely because of their 
race and color (R. 12). The Attorney General of the State 
of Kansas filed a separate answer for the specific purpose 
of defending the constitutional validity of the statute in 
question (R. 14).

Thereupon, the court below was convened in accordance 
with Title 28, United States Code, § 2284. On June 25-26, 
a trial on the merits took place (R. 63 et seq.). On August 
3, 1951, the court below filed its opinion (R. 238-244), its 
findings of fact (R. 244-246), and conclusions of law (R. 
246-247), and entered a final judgment and decree in 
appellees’ favor denying the injunctive relief sought (R. 
247).

Specifications of Error

The District Court erred:
1. In refusing to grant appellants’ application for a 

permanent injunction to restrain appellees from acting 
pursuant to the statute under which they are maintaining 
separate public elementary schools for Negro children 
solely because of their race and color.

2. In refusing to hold that the State of Kansas is with­
out authority to promulgate the statute because it enforces



5

a classification based upon race and color which is violative 
of the Constitution of the United States.

3. In refusing to enter judgment in favor of appellants 
after finding that enforced attendance at racially segregated 
elementary schools was detrimental and deprived them of 
educational opportunities equal to those available to white 
children.

Summary of Argument

The Fourteenth Amendment precludes a state from 
imposing distinctions or classifications based upon race 
and color alone. The State of Kansas has no power there­
under to use race as a factor in affording educational oppor­
tunities to its citizens.

Racial segregation in public schools reduces the bene­
fits of public education to one group solely on the basis of 
race and color and is a constitutionally proscribed distinc­
tion. Even assuming that the segregated schools attended 
by appellants are not inferior to other elementary schools 
in Topeka with respect to physical facilities, instruction 
and courses of study, unconstitutional inequality inheres 
in the retardation of intellectual development and distor­
tion of personality which Negro children suffer as a result 
of enforced isolation in school from the general public 
school population. Such injury and inequality are estab­
lished as facts on this appeal by the uncontested findings 
of the District Court.

The District Court reasoned that it could not rectify 
the inequality that it had found because of this Court’s 
decisions in Plessy v. Ferguson, 163 IT. S. 537 and Gong 
Lum v. Rice, 275 IJ. S. 78. This Court has already decided 
that the Plessy case is not in point. Reliance upon Gong 
Lum v. Rice is mistaken since the basic assumption of that 
case is the existence of equality while no such assumption



6

can be made here in the face of the established facts. 
Moreover, more recent decisions of this Court, most notably 
Sweatt v. Painter, 339 U. S. 629 and McLcmrin v. Board of 
Regents, 339 U. S. 637, clearly show that such hurtful 
consequences of segregated schools as appear here con­
stitute a denial of equal educational opportunities in viola­
tion of the Fourteenth Amendment. Therefore, the court 
below erred in denying the relief prayed by appellants.

ARGUMENT

I

The State of Kansas in affording opportunities for 
elementary education to its citizens has no power under 
the Constitution of the United States to impose racial 
restrictions and distinctions.

While the State of Kansas has undoubted power to 
confer benefits or impose disabilities upon selected groups 
of citizens in the normal execution of governmental func­
tions, it must conform to constitutional standards in the 
exercise of this authority. These standards may be 
generally characterized as a requirement that the state’s 
action be reasonable. Keasonableness in a constitutional 
sense is determined by examining the action of the state 
to discover whether the distinctions or restrictions in issue 
are in fact based upon real differences pertinent to a lawful 
legislative objective. Bam Peanut Co. v. Pinson, 282 U. S. 
499; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; 
Asbury Hospital v. Cass County, 326 U. S. 207; Metropoli­
tan Casualty Insurance Co. v. Brownell, 294 U. S. 580; 
Dominion Hotel v. Arizona, 249 U. S. 265.

When the distinctions imposed are based upon race and 
color alone, the state’s action is patently the epitome of



7

that arbitrariness and capriciousness constitutionally un­
permissive under our system of government. Yick Wo v. 
Hopkins, 118 U. S. 356; Skinner v. Oklahoma, 316 U. S. 
535. A racial criterion is a constitutional irrelevance, 
Edwards v. California, 314 U. S. 160, 184, and is not saved 
from condemnation even though dictated by a sincere 
desire to avoid the possibility of violence or race friction. 
Buchanan v. Worley, 245 TJ. S. 60; Morgan v. Virginia, 
328 U. S. 373. Only because it was a war measure designed 
to cope with a grave national emergency was the federal 
government permitted to level restrictions against persons 
of enemy descent. Hirahayashi v. United States, 320 U. S. 
81; Oyama v. California, 332 U. S. 633. This action, 
“ odious,”  Hirahayashi v. United States, supra, at page 
100, and “ suspect,”  Korematsu v. United States, 323 U. S. 
214, 216, even in times of national peril, must cease as 
soon as that peril is past. Ex Parte Endo, 323 U. S. 283.

This Court has found violation of the equal protection 
clause in racial distinctions and restrictions imposed by 
the states in selection for jury service, Shepherd v. 
Florida, 341 U. S. 50; ownership and occupancy of real 
property, Shelley v. Kramer, 334 U. S. 1; Buchanan v. 
Warley, supra; gainful employment, Takahashi v. Fish 
and Game Commission, 334 U. S. 410; voting, Nixon v. 
Condon, 286 U. S. 73; and graduate and professional educa­
tion. McLaurin v. Board of Regents, supra; Sweatt v. 
Painter, supra. The commerce clause in proscribing the 
imposition of racial distinctions and restrictions in the 
field of interstate travel is a further limitation of state 
power in this regard. Morgan v. Virginia, 328 U. S. 373.

Since 1940, in an unbroken line of decisions, this Court 
has clearly enunciated the doctrine that the state may not 
validly impose distinctions and restrictions among its 
citizens based upon race or color alone in each field of 
governmental activity where question has been raised.



8

Smith v, Allwright, 321 U. S. 649; Sipuel v. Board of 
Education, 332 U. S. 631; Sweatt v. Painter, supra; Pierre 
v. Louisiana, 306 U. S. 354; Hill v. Texas, 316 TJ. S. 400; 
Morgan v. Virginia, supra; McLaurin v. Board of Regents, 
supra; Oyama v. California, supra; Takahashi v. Fish and 
Game Commission, supra; Shelley v. Kraemer, supra; 
Shepherd v. Florida, supra; Cassell v. Texas; 339 U. S. 
282. On the other hand, when the state has sought to protect 
its citizenry against racial discrimination and prejudice, 
its action has been consistently upheld, Railway Mail 
Association v. Corsi, 326 U. S. 88, even though taken in 
the field of foreign commerce. Bob-Lo Excursion Co. v. 
Michigan, 333 U. S. 28.

It follows, therefore, that under this doctrine, the 
State of Kansas which by statutory sanctions seeks to 
subject appellants, in their pursuit of elementary educa­
tion, to distinctions based upon race or color alone, is here 
attempting to exceed the constitutional limits to its au­
thority. For that racial distinction which has been held 
arbitrary in so many other areas of governmental activity 
is no more appropriate and can be no more reasonable in 
public education.

II

The court below, having found that appellants 
were denied equal educational opportunities by virtue 
of the segregated school system, erred in denying the 
relief prayed.

The court below made the following finding of fact:
“  Segregation of white and colored children in 

public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of the law; for the policy of separating



9

the races is usually interpreted as denoting the in­
feriority of the negro group. A sense of inferiority 
affects the motivation of a child to learn. Segrega­
tion with the sanction of law, therefore, has a tendency 
to retard the educational and mental development of 
negro children and to deprive them of some of the 
benefits they would receive in a racially integrated 
school system.”

This finding is based upon uncontradicted testimony 
that conclusively demonstrates that racial segregation 
injures infant appellants in denying them the opportunity 
available to all other racial groups to learn to live, work 
and cooperate with children representative of approxi­
mately 90% of the population of the society in wdiieh they 
live (R. 216); to develop citizenship skills; and to adjust 
themselves personally and socially in a setting comprising 
a cross-section of the dominant population (R. 132). The 
testimony further developed the fact that the enforcement 
of segregation under law denies to the Negro status, power 
and privilege (R. 176); interferes with his motivation for 
learning (R. 171); and instills in him a feeling of inferiority 
(R. 169) resulting in a personal insecurity, confusion and 
frustration that condemns him to an ineffective role as 
a citizen and member of society (R. 165). Moreover, it 
was demonstrated that racial segregation is supported by 
the myth of the Negro’s inferiority (R. 177), and where, 
as here, the state enforces segregation, the communuity at 
large is supported in or converted to the belief that this 
myth has substance in fact (R. 156, 169, 177). It was 
testified that because of the peculiar educational system 
in Kansas that requires segregation only in the lower 
grades, there is an additional injury in that segregation 
occurring at an early age is greater in its impact and 
more permanent in its effects (R. 172) even though there 
is a change to integrated schools at the upper levels.



10

That these conclusions are the consensus of social 
scientists is evidenced by the appendix filed herewith. 
Indeed, the findings of the court that segregation constitutes 
discrimination are supported on the face of the statute 
itself where it states that: “  * * * no discrimination on ac­
count of color shall be made in high schools except as 
provided herein * * * ”  (emphasis supplied).

Under the Fourteenth Amendment equality of educa­
tional opportunities necessitates an evaluation of all factors 
affecting the educational process. Sweatt v. Painter, supra; 
McLaurin v. Board of Regents, supra. Applying this 
yardstick, any restrictions or distinction based upon race 
or color that places the Negro at a disadvantage in relation 
to other racial groups in his pursuit of educational oppor­
tunities is violative of the equal protection clause.

In the instant case, the court found as a fact that appel­
lants were placed at such a disadvantage and were denied 
educational opportunities equal to those available to white 
students. It necessarily follows, therefore, that the court 
should have concluded as a matter of law that appellants 
were deprived of their right to equal educational oppor­
tunities in violation of the equal protection clause of the 
Fourteenth Amendment.

Under the mistaken notion that Plessy v. Ferguson and 
Gong Lum v. Rice were controlling with respect to the 
validity of racial distinctions in elementary education, the 
trial court refused to conclude that appellants were here 
denied equal educational opportunities in violation of their 
constitutional rights. Thus, notwithstanding that it had 
found inequality in educational opportunity as a fact, the 
court concluded as a matter of law that such inequality did 
not constitute a denial of constitutional rights, saying:

“  Plessy v. Ferguson, 163 U. S. 537, and Gong 
Lum v. Rice, 275 U. S. 78, uphold the constitution­



11

ality of a legally segregated school system in the 
lower grades and no denial of due process results 
from the maintenance of such a segregated system 
of schools absent discrimination in the maintenance 
of the segregated schools. We conclude that the 
above-cited cases have not been overruled by the later 
case of McLaurm v. Oklahoma, 339 U. S. 637, and 
Sweatt v. Painter, 339 U. S. 629.”

Plessy v. Ferguson is not applicable. Whatever doubts 
may once have existed in this respect were removed by this 
Court in Sweatt v. Painter, supra, at page 635, 636.

Gong Lum v. Rice is irrelevant to the issues in this 
case. There, a child of Chinese parentage was denied admis­
sion to a school maintained exclusively for white children 
and was ordered to attend a school for Negro children. 
The power of the state to make racial distinctions in its 
school system was not in issue. Petitioner contended that 
she had a constitutional right to go to school with white 
children, and that in being compelled to attend school with 
Negroes, the state had deprived her of the equal protection 
of the laws.

Further, there was no showing that her educational 
opportunities had been diminished as a result of the state’s 
compulsion, and it was assumed by the Court that equality 
in fact existed. There the petitioner was not inveighing 
against the system, but that its application resulted in 
her classification as a Negro rather than as a white 
person, and indeed by so much conceded the propriety of 
the system itself. Were this not true, this Court would 
not have found basis for holding that the issue raised was 
one “ which has been many times decided to be within the 
constitutional power of the state”  and, therefore, did not 
“ call for very full argument and consideration.”



12

In short, she raised no issue with respect to the state’s 
power to enforce racial classifications, as do appellants 
here. Rather, her objection went only to her treatment 
under the classification. This case, therefore, cannot be 
pointed to as a controlling precedent covering the instant 
case in which the constitutionality of the system itself is 
the basis for attack and in which it is shown the inequality 
in fact exists.

In any event the assumptions in the Gong Lum case have 
since been rejected by this Court. In the Gong Lum case, 
without “ full argument and consideration,”  the Court 
assumed the state had power to make racial distinctions 
in its public schools without violating the equal protection 
clause of the Fourteenth Amendment and assumed the 
state and lower federal court cases cited in support of this 
assumed state power had been correctly decided. Lan­
guage in Plessg v. Ferguson was cited in support of these 
assumptions. These assumptions upon full argument and 
consideration were rejected in the McLaurin and Sweatt 
cases in relation to racial distinctions in state graduate 
and professional education. And, according to those cases, 
Plessg v. Ferguson, is not controlling for the purpose of 
determining the state’s power to enforce racial segregation 
in public schools.

Thus, the very basis of the decision in the Gong Lum 
case has been destroyed. We submit, therefore, that this 
Court has considered the basic issue involved here only in 
those cases dealing with racial distinctions in education at 
the graduate and professional levels. Missouri ex rel. 
Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Edu­
cation, supra; Fisher v. Hurst, 333 U. S. 147; Sweatt v. 
Painter, supra; McLaurin v. Board of Regents, supra.

In the McLaurin and Sweatt cases, this Court measured 
the effect of racial restrictions upon the educational devel­
opment of the individual affected, and took into account the



13

community’s actual evaluation of the schools involved. In 
the instant case, the court below found as a fact that racial 
segregation in elementary education denoted the inferiority 
of Negro children and retarded their educational and men­
tal development. Thus the same factors which led to the 
result reached in the McLaurin and Sweatt cases are pres­
ent. Their underlying principles, based upon sound analy­
ses, control the instant case.

Conclusion

In light of the foregoing, we respectfully submit that 
appellants have been denied their rights to equal educa­
tional opportunities within the meaning of the Fourteenth 
Amendment and that the judgment of the court below 
should be reversed.

R obert L. Carter,
T hxjrgood M arshall , 
S pottswood W. R obinson , III, 
C harles S. S cott,

Counsel for Appellants.

W illiam  T. Colem an , Jr.,
J ack  G reenberg,
George E. C. H ayes,
George M. J oh n son ,
W illiam  R . M in g , Jr.,
C onstance B aker  M otley,
J am es M. N abrit, J r .,
F r an k  D . R eeves,
J o h n  S cott,
J ack  B . W ein stein ,

of Counsel.



S uprem e  P r in t in g  Co., I nc ., 41 Murray Street, N. Y. 7, BA 7-0349 
49