Sweat v Painter Briefs
Public Court Documents
October 4, 1948 - February 25, 1950

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Brief Collection, LDF Court Filings. Sweat v Painter Briefs, 1948. 2ddc637e-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/acbd3e6e-afb2-4b88-8a8a-2308afb28c66/sweat-v-painter-briefs. Accessed June 13, 2025.
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■ NUMBER 9619 IN THE COURT OF CIVIL APPEALS For the Third Supreme Judicial District of Texas, at Austin, Texas L-tBG - Heman Marion Sweatt, Appellant VERSUS Theophilus Shickel Painter, et al, Appellees Appealed from the District Court of Travis County BRIEF FOR APPELLANT W. J. Durham of Dallas Thurgood Marshall of New York Attorneys for Appellant. E. Duncan & Co., Brief Printers, Dallas INDEX STATEMENT OF THE NATURE OF THE CASE 1 POINTS UPON WHICH THE APPEAL IS PREDICATED .................................................... 2 FIRST POINT RESTATED .................................... 3 STATEMENT UNDER FIRST POINT................. 3 ARGUMENT AND AUTHORITIES UNDER FIRST POINT ............................................... 7 SECOND POINT RESTATED .................................. 14 STATEMENT UNDER SECOND POINT............. 14 ARGUMENT AND AUTHORITIES UNDER SECOND POINT ............................ 17 THIRD POINT RESTATED.................................... 22 STATEMENT UNDER THIRD POINT................ 22 ARGUMENT AND AUTHORITIES UNDER THIRD POINT............................................ 23 CONCLUSION ............................................................ 42 PRAYER ...................................................................... 42 Page LIST OF AUTHORITIES Aiken v. Woodward, (Tex. Civ. App.) 241 S.W. 1117 12 Alston v. Norfolk School Board, 112 F. (2d) 992.... 11 35 Am. Jur. Sec. 377 at p. 115 ................................... 12 13,14,15 Amendments U. S. Constitution............... 23 Buchanan v. Warley, 245 U. S. 6 0 ........................... 26 Constitution of Texas, Article VII, Section 10, Sec tion 13, Section 14 ............................................ 19 Crossman v. Galveston, 112 Tex. 303, 247 S. W. 810 7 38 C. J. Sec. 671 at 915 ............................................ 12 Douglass v. Campbell, 89 Ark. 254,116 S. W. 211 .... 8 Ex parte Newman, 14 Wall 152, 20 L. Ed. 877 ....... 12 Ex parte Endo, 323 U. S. 283 .................................... 26 Ex parte Virginia, 100 U. S. 339 ............................... 25 Gong Lum v. Rice, 275 U. S. 7 8 ............................... 11 Hughes v. Outlaw, 197 Ala. 452, 73 So. 1 6 ............... 8 H. B. No. 175 (chapter 377, Acts 1945) ........... 21 Hirabayashi v. United States, 320 U. S. 81 ........... 26 Hill v. Texas, 316 U. S. 400 ........................................ 26 Johnson v. School Board, 166 N. C. 468, 82 S. E. 832 7 Page Kasprowicz v. Tate, (Tex. Civ. App.) 66 S. W. (2d) 435 ........................................................................ 7 Eorematsu v. United States, 323 U. S. 214 ............... 26 Love v. Wilcox, 119 Tex. 256, 28 S. W. (2d) 515 .... 7 Merrill Law of Mandamus 1892 34 Am. Jur. 829- 853 ............... 7 Missouri ex rel Gaines v. Canada, 305 U. S. 337, page 349 ................................................................ 7 Mitchell v. United States, 313 U. S. 8 0 ................... 7 Pearson v. Murray, 169 Md. 478, 182 (a) 540 ....... 7 People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 7 People ex rel Bidd v. Alton, 193, 111, 309, 61 N. E. 1077 ...................................................................... 8 Plessy v. Ferguson, 163 U. S. 537 ........................... 28 Pierre v. Louisana, 306 U. S. 354 ........................... 26 Revised Civil Statutes of Texas Article 2746, 3534, Section 5 ................................................................ lg Ridgeway v. City of Ft. Worth, 243 S. W. 704 ....... 12 Roberts vs. City of Boston, 5 Cush (Mass.) 198 28 S. B. No. 228 (chapter 308, Acts 1945) .............. 21 Senate Bill No. 228 of the 49th Legislature........... 17 LIST OF AUTHORITIES (Continued) Page Slaughter House Cases, The 16 Wall (U. S.) 36 .... 25 Smith v. Allwright, 321 U. S. 649 ........................... 26 State ex rel Stoutmeyer v. Duffy, 7 Nev. 342 ........... 8 State ex rel Stallard v. White, 82 Ind. 698 ............... 8 State ex rel Kelley v. Ferguson, 95 Neb. 63, 144 N. W. 1039 ................................................................ 8 State ex rel Dresser v. District Board, 135 Wis. 619, 116 N. W. 232 .................... 8 Steele v. Louisville and Nashville R. Co., 323 U. S. 192 ........................................................................ 26 Strauder vs. Virginia, 100 U. S. 303 ................... 23 Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210................................................................ 26 United States ex rel Girard Trust Co. v. Helvering, 301 U. S. 540 ........................................................ 7 Ward v. Flood, 48 Cal. 3 6 ........... 7 Yick Wo v. Hopkins, 118 U. S. 356 ........................... 26 LIST OF AUTHORITIES (Continued) Page NUMBER 9619 IN THE COURT OF CIVIL APPEALS For the Third Supreme Judicial District of Texas, at Austin, Texas Heman Marion Sweatt, Appellant VERSUS T heophilus Shickel Painter, et al, Appellees Appealed from the District Court of Travis County BRIEF FOR APPELLANT STATEMENT OF THE NATURE OF THE CASE This is an action in mandamus. Heman Marion Sweatt, appellant, on May 16, 1946, filed an application for a Writ of Mandamus in the 126th District Court of Travis County, Texas, against the members of the Board of Regents of the University of Texas, the acting 2 President, the Dean of the School of Law and the Re gistrar of said University. The application for man damus alleged that appellant was fully qualified for admission to the School of Law of the University of Texas, had duly applied for admission and refused ad mission solely because of his race or color in violation of the Constitution and laws of the United States and of the State of Texas (Tr. 2-9). On June 26, 1946 the Court entered an order that the action of appellees in denying admission to the appellant was a denial of ap pellant’s constitutional right to the equal protection of the laws but issuance of the writ was stayed for six months to permit the State of Texas to establish a separate law school for Negroes substantially equiva lent to the one at the University of Texas (Tr. 29-32). On December 17, 1946, the Court below denied the writ of mandamus. To the judgment, appellant ex cepted and gave notice of appeal (Tr. 39). POINTS UPON WHICH THE APPEAL IS PREDICATED FIRST POINT: THE COURT ERRED IN HOLD ING THAT A LAW SCHOOL EQUIVALENT TO THAT AT THE UNIVERSITY OF TEXAS HAD BEEN MADE AVAILABLE TO APPELLANT. 8 SECOND POINT: THE ERROR OF THE COURT IN HOLDING THAT THE COURT’S ORDER OF JUNE 28, 1946 HAD BEEN COMPLIED WITH. THIRD POINT: THE ERROR OF THE COURT IN DENYING WRIT OF MANDAMUS ON THE GROUND THAT THE PURPORTED PROVISION FOR LEGAL TRAINING AT “PRAIRIE VIEW UNI VERSITY” MET THE REQUIREMENTS OF THE UNITED STATES CONSTITUTION. FIRST POINT THE COURT ERRED IN HOLDING THAT A LAW SCHOOL EQUIVALENT TO THAT AT THE UNIVER SITY OF TEXAS HAD BEEN MADE AVAILABLE TO APPELLANT. (First point restated) STATEMENT In the initial hearing upon this cause in the court below on June 17, 1946, it was found that appellant was scholastically qualified for admission to the first year class of the University of Texas and that his ap plication was denied solely on the basis of race and color; that under the Constitution and laws of the Uni ted States and Texas appellant is entitled to educa tional advantages equal to those offered white persons. (Tr. 30) The court further found that the denial of 4 appellant’s application by appellees was a denial to the appellant of the equal protection o f the laws “ for the reason that no provision has been made for courses in law and facilities for teaching the same for persons of African descent and of Negro blood at any school with in the State of Texas supported by public funds while the courses of law and the facilities for teaching the same have been afforded to persons of the white or Caucasian race.” (Tr. 31) The court, however, ruled that no writ would issue at that time but held that if within six months of the initial hearing, a course in legal instruction equivalent to that offered white students at the University of Tex as was not established and made available to appellant, the writ would issue but that if such a course equivalent to that offered at University of Texas was made avail able, the writ would be denied. The court retained jurisdiction of the cause and continued the case upon its docket for six months. December 17, 1946 was set as hearing date to determine the then existing facts and whether a course in legal instruction equivalent to that offered whites at the University of Texas was in being and was in fact available to appellant and other Negro citizens. Upon the determination of these facts, the court was to render its final judgment. (Tr. 31-32) On December 17, 1946, appellant and appellees by their respective counsel appeared before the court be- low. Appellees made a motion requesting a denial of the writ of mandamus on the grounds that a law school equivalent to the law school at the University of Tex as was now available and that the state’s obligation to afford appellant a course in legal training had been met. In support of this motion appellees cited Senate Bill No. 228, Chapter 308, page 506, Acts of the 49th Legislature 1945, which legislation, appellees alleged, placed a mandatory duty upon the Board of Directors of the Agricultural and Mechanical College of Texas to provide a law course for Negroes at Prairie View University equivalent to that being offered whites at the University of Texas. Appellees introduced into evi dence a resolution of this aforesaid Board of Directors of December 4, 1946, the pertinent portions of which are set out below. (S. of F. Ex. No. 1 pp. 18-20) “ THEREFORE, be it resolved “ 1. That if the applicant and / or similar other applicants for first-year courses in law offer them selves to the Registrar at Prairie View University, bringing with them a suitable transcript and a cer tificate from the Dean of the Law School of the Uni versity of Texas that they are scholastically pre pared for a course of law equivalent to that given at the University of Texas, they will be admitted to Prairie View University for the semester beginn ing February 1947. “2. The course will be offered in Houston, Texas and will be substantially the same approved course 6 as is now offered by the University of Texas School of Law for entering students, and the qualifications of the personnel to teach the students will be de termined by the State Board of Law Examiners, and they will be judged acceptable by it before in struction begins. “ 3. The Board of Directors of A. & M. College, through Prairie View University, will provide in struction in accordance with the requirements of the Supreme Court of Texas and the Amercan Bar As sociation, and will provide or make available to the students such books or library material as are need ed for the first-year course in which they will be enrolled. The Governor will be asked for a deficiency appropriation to provide the cost of instruction.” Appellees called only one witness, E. L. Angell, Sec retary of the Board of Directors of the Agricultural and Mechanical College of Texas. The testimony of this witness was solely for the purpose of showing that the resolution introduced was in fact an authentic docu ment of the Board of Directors of the Agricultural and Mechanical College of Texas. (S. of F. 12-13) Under cross-examination, this witness admitted that as far as he knew, nothing had been done other than the pass age of this resolution to actually afford legal training in Texas to appellant and other Negroes similarly situated. (S. of F. 13) On the basis of this motion and evidence, final judg ment was rendered denying the writ on the grounds that “ the court having heard the pleadings, evidence and argument of counsel is of the opinion that the said 7 order of June 26, 1946, has been complied with in that a law school or legal training substantially equivalent to that offered at the University of Texas has now been made available to relator and that the relator may now obtain legal training within the State at the Prairie View University.” (Tr. 38) To this judgment appellant duly excepted and gave notice of appeal. (Tr. 39) ARGUMENT AND AUTHORITIES LISTED It is a well settled principle of American law that mandamus will.lie where there is (1) a clear legal right in the relator to the enforcement of (2) a clear legal duty which respondent is under obligation to but has failed to perform, and (3) no other adequate remedy is available whereby relator can obtain the relief to which he is entitled.1 In the instant ease, appellant has a clear legal right to a legal education equivalent to that which the state affords to white students at the University of Texas.2 The law school at the University Love v. Wilcox, 119 Tex. 256, 28 S. W. (2d) 515, (1930); Kas- prowicz v. Tate, (Tex. Civ. App.), 66 S. W. (2d) 435, (1933); Cross- man v. Galveston, 112 Tex. 303, 247 S. W. 810, (1923); United States ex rel Girard Trust Co. v. Helvering, 301 U. S. 540, (1937)* See on whole point Merrill, Law of Mandamus, 1892, 34 Am Jur’ 2. Missouri ex rel Gaines v. Canada, 305 U. S. 337, (1938)- Pear ly11 v Murray, 169 Md. 478 182(A) 540, (1936); Johnson v .’ School Board, 166 N. C. 468, 82 S. E. 832, (1914); People v. Gallagher ??dE \ Y -J.88’u^ Am‘ Rep- 232> (1883); Warii v- 48 Cal 36,(1874); Mitchell v. United States, 313 U. S. 80, (1941). 8 of Texas is the only State institution in Texas where persons, Negro or white, can obtain a legal training. (S. of F. No. 10, p. 7) In the absence of a course in law equal to that offered at the University of Texas being made available to appellant, appellees were under a clear legal duty to admit him to the law school o f the University of Texas.3 With the failure of appellees to perform this duty and there being no other remedy avail able whereby appellant can obtain adequate relief, he is entitled to the issuance of a mandatory writ compell ing appellees to admit him to law school at the Univer sity of Texas.4 The court below recognized appellant’s right to the writ in its judgment of June 26, 1946, but refused to issue same for six months in order to give the State time to perform its obligation to appellant by provid ing him with a legal education equivalent to that of fered at the University of Texas. 3. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, supra; State ex rel Stoutmeyer v. Duffy, 7 Nev. 342, (1872). It has long been settled that mandamus is the appropriate remedy to compel the admission of a student to a school where it appears that he has been wrongfully denied rights to which he is legally entitled. Missouri ex rel Gaines v. Canada, supra; Hughes v. Outlaw, 197 Ala. 452, 73 So. 16 (1916); Douglass v. Campbell, 89 Ark. 254, 116 S. W. 211 (1909); People ex rel Bidd v. Alton, 193 111. 309, 61 N. E. 1077, (1901); State ex rel Stallard v. White, 82 Ind. 698, (1882); State ex rel Kelley v. Ferguson, 95 Neb. 63, 144 N. W. 1039 (1914); State ex rel Stoutmeyer v. Duffy, supra; State ex rel Dresser v. District Board, 135 Wis. 619, 116 N. W. 232, (1903); Pearson v. Murray, supra. *. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, supra; State ex rel Stoutmeyer v. Duffy, supra. 9 The substance of the Court’s original decree was that either a legal education equivalent to that at the University of Texas was to be made available to appel lant within six months stay granted or appellant would be entitled to a writ compelling appellees to admit him to the University of Texas. This judgment was in re cognition of a well-settled principle of constitutional law that where there is a total failure to provide educational facilities and training to Negroes that is afforded whites, mandamus will lie to compel the school authorities to permit Negroes to use the existing facilities.6 Appellant was unquestionably entitled to issuance of the writ on June 17, 1946, compelling his admission to the University of Texas. Although a court has discre tion in issuance of a writ of mandamus, such discre tion is not unlimited. The court’s failure to issue the writ of mandamus after the initial hearing was clearly erroneous and an abuse of its discretional authority. At that hearing appellant had shown an undisputed right to the issuance of the writ compelling his admis sion to the law school at the University of Texas, and the writ should have issued as of that date.6 Certainly, in the absence of a change in circumstances, appellant was doubly entitled to the issuance of the 5. Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, supra; State ex rel Stoutmeyer v. Duffy, supra. 6. See Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, supra. 10 mandatory writ on December 17, 1946, compelling his admission to the law school at the University of Texas. Aside from the controlling principles of law, discussed supra, which establish beyond question appellant’s right to mandatory remedy, the very terms of the order of the court on June 17, 1946, under which it retained jurisdiction of and continued the cause for a period of six months required the issuance of the writ against appellees on December 17, 1946, ordering them to admit appellant to the law school at the University of Texas. The original judgment of June 17, 1946, stated in part as follows: “IT IS THEREFORE ORDERED that no writ of mandamus issue at this time and that if within six months from the date hereof a course for legal instruction substantially equivalent to that offered at the University of Texas is established and made available to the relator within the State of Texas in an educational institution supported by said State, the writ of mandamus sought herein will be denied, but if such a course of legal instruction is not so established and made available, the writ of mandamus will issue, and it is further ordered that this court retain jurisdiction of this cause; and that this cause be continued upon the docket of this court from term to term; and that at the expiration of said six months’ period, to-wit, on the 17th day of December, 1946, at 10 o’clock a. m., a hearing will be held to determine the then existing facts and whether said Law School has or has not been estab lished, whereupon the Court will enter its final order herein.” (Tr. 31-32) 11 The terms of this order are clear and unequivocal. If no legal training equivalent to that offered at the University of Texas was ready and available for appel lant on December 17, 1946, a mandatory writ would on that date issue from the court compelling appellees to admit appellant to the University of Texas. There is no question but that a person will be entitled to such a mandatory remedy where it is shown that he is de nied admission to the law school maintained by a state because of race or color, although duly qualified for admission thereto, and the state does not offer at any other institution a course in law equivalent to that afforded at the aforesaid state law school.7 This has been the consistent interpretation of the Fourteenth Amendment by American courts.8 Hence, the Constitu tion of the United States and the specific terms of the lower court’s June 26, 1946 order at the very least required that appellant be admitted to the University of Texas on December 17, 1946, if the State had not made available to him a course in law equivalent to that afforded white persons at the University of Texas. At the June 17 trial in the court below, appellant made out a prima facie case showing that the mandatory 7. Missouri ex rel Gaines v. Canada, supra, Pearson v. Murray, supra. s. Ward v. Flood, supra; People v. Gallager, supra; Johnson v. School Board, supra; Gong Lum v. Rice, 275 U. S. 78 (1928); and cases cited in Footnote 7, supra. See also Alston v. Norfolk School Board, 112 F. (2d) (C. C. A. 4th, 1940) cert. den. 311 U. S. 693 (1940); Mitchell v. United States, supra. 12 writ should issue to secure his admission to the Uni versity of Texas. The burden of proof thereupon shift ed to appellees to vindicate their conduct.9 This well- recognized rule of procedure is required by Texas courts.18 Appellant has established his right to attend the Uni versity of Texas. Appellees defend on the ground that separate but equal facilities for legal training are now available and for that reason the writ herein sought should be denied. Even under this theory, appellant was entitled to issuance of the writ unless appellees proved by competent evidence (1) the existence of a law school maintained by the state, (2) equivalent to that at the University of Texas and (3) available to appellant. This requirement appellees have failed to meet and the mandatory writ sought should have issued forthwith. Failing to prove that such facilities were in fact in being, operative, available to appellant and equivalent to the law school at the University of Texas, appellant’s right to issuance of the writ remained uncontrovert ed.11 No evidence to prove such facts were presented 9. 35 Am. Jur. Sec. 377, at 115 “ . . .Where, however, (in man damus proceedings) the right and duty appears, the burden of proving matter set up by way of excuse for failure to act, or of justifying such failure to act, rests upon the respondent or defendant.” 35 Am. Jur. Sec. 377, at p. 115 “ To the same effect see 38 C. J. Sec. 671 at 915; Ex parte Newman, 14 wall 152, 20 L. Ed. 877 (1871); See also Missouri ex rel Gaines v. Canada, supra; Pearson v. Murray, supra. 10. Ridgeway v. City of Ft. Worth, 243 S. W. 704 (1922); v. Woodward, (Tex. Civ. App) 241 S. W. 1117, 1922. “ • Citation in Footnote “9” and “10” supra. Aiken 13 and the Court’s statement that “ a law school or legal training substantially equivalent to that offered at the University of Texas has now been made available to relator . is without vestige of foundation. On the contrary the evidence presented at the Decem ber 17th hearing proves that no such law school is in existence. The only evidence appellees produced was a resolution of dubious legality of the Board of Direc tors of the Agricultural and Mechanical College of Tex as to the effect that legal training would be made available to Negroes at some future date and that the Governor would be asked to make a deficiency appro priation for that purpose. This resolution itself denies the present reality of a law school for Negroes in Tex as. There was no evidence presented by appellees to show that between June 17, 1946 and December 17, 1946 (1) a law school plant had actually been secured; (2) no evidence as to the size of this purported law school, or what facilities or equipment consisted of; (3) no evi dence as to the size and extent of its library facilities; (4) no evidence as to its faculty or proposed curriculum; (5) no evidence that the funds available as of June 17, 1946 (S. of F. No. 22, p. 11) for establishment of a law school for Negroes had been used, was in fact being used, or was now available for that purpose; and (6) no evidence of any bulletin announcements or other 14 tangible evidence to actually show that a proposed law school was in fact now available. As we have seen supra, Texas procedure requires that when in a mandamus proceeding relator establishes by pleadings and evidence a prima facie case, the writ sought will issue unless respondents present evidence of a state of facts to justify their conduct.12 Without doubt, therefore, the denial of the writ by the court below without requisite proof of the existence of law facilities equivalent to the law school at the University of Texas and availability of such facilities to appellant was erroneous and should be reversed.13 SECOND POINT THE ERROR OF THE COURT IN HOLDING THAT THE COURT’S ORDER OF JUNE 26, 1946 HAD BEEN COMPLIED WITH. (Second point restated) STATEMENT The facts in the case are undisputed and appear in THE STATEMENT OF FACTS, (pages 5-11) On the 26th day of June 1946, judgment of the court was en tered holding that the appellant was scholastically qualified for admission to the first year law class of « . Id. 1S. Id. 15 the University of Texas and had applied for admission to that school on the 26th day of February, 1946, and was denied admission by appellees solely on account of his race or color and that the appellees were duly ap pointed and administrative officers of the State of Tex as with authority to admit qualified applicants to the law school of the University of Texas. Judgment of the court also held that the State of Texas through its administrative agents had provided for courses in law and for facilities for teaching the same at the Univer sity of Texas for persons of the white race and that no provision had been made for the course of law and the facilities for teaching the same for Negroes sub stantially equivalent to those offered at the University of Texas. (Tr. 29-30) The Court further held “that the denial of relator’s application by respondents was a denial to the relator’s equal protection of laws for the reason that no provision has been made for courses in law and facilities for teaching the same for persons of African descent and of Negro blood at any school within the State of Texas supported by public funds while the courses of law and the facilities for teaching the same have been afforded to persons of the white or Caucasian race.” (Tr. 31) The Court, however, declined to issue a writ of man damus at that time but allowed six months from the date of the order to give the State of Texas an appor- tunity to provide for equal educational opportunities 16 for appellant, stating that “if within six months from the date hereof a course for legal instruction substan tially equivalent to that afforded at the University of Texas is established and made available to the relator within the State of Texas, in an educational institution supported by said state, the writ of mandamus sought herein will be denied, but if such a course of legal in struction is not so established and made available the writ of mandamus will issue.” (Tr. 31) The order finally provided that with the expiration of the six months period, “a hearing will be held to determine the then existing facts and whether said law school has or has not been established.” (Tr. 32) At the subsequent hearing on the 17th day of Decem ber, 1946 appellees filed a “Motion Showing Availa bility of Law School and Requesting Denial of Writ of Mandamus.” This motion is set out in the transcript, pages 33-36, and the exhibit to said motion appears in the Statement of Facts, pages 15-21. Appellees’ motion requested dismissal of the action on the ground that the Court’s order had been com plied with in that the State of Texas was then offering to qualified Negroes separate law school training sub stantially equivalent to that offered white students at the University of Texas. Respondents’ Exhibit No. 1 (S. of F. 18) provides that the proposed law school to be established at “Prairie View University” is to 17 be under the supervision of the “ Board of Directors of A. and M. College through Prairie View University.” The resolution was adopted by the Board of Directors of A. and M. College. ARGUMENT AND AUTHORITIES LISTED The case of Missouri ex rel Gaines v. Canada, 305 U. S. 337, p. 349: “ The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the quality of the privileges which the laws give to the separated groups within the State.” There is in existence in Texas today a law school at the University of Texas authorized and protected by the Constitution of the State of Texas. There is no provi sion in the Constitution of Texas for the establishment of a separate university for Negroes legally competent to maintain a law school for Negroes. Senate Bill 228 of the 49th Legislature changed the name of Prairie View State Normal and Industrial College to “ Prairie View University.” The bill also pro vides that: “ Whenever there is any demand for same, the Board of Directors of the Agricultural and Mechani cal College in addition to the courses of study now authorized for said institution, is authorized to provide for the establishment of courses in law, medicine, engineering, pharmacy, journalism, or 18 any other generally recognized college course taught at the University of Texas, in said Prairie View University, which courses shall be substantially equivalent to those offered at the University of Texas.” It is therefore clear that under the present set up the so-called law school at the so-called Prairie View University is to be created under the supervision of Texas A. & M. College. The action of the Legislature in enacting Senate Bill 228 and the action of the Board of Directors of A. & M. College is directly contrary to intent of the Constitution of Texas. Article VII of the Constitution of Texas provides for three schools1 on the collegiate level as follows: 1. The prior legislative enactments concerning collegiate train ing in Texas are as follows: “ On January 26, 1839, the Legislature o f the State of Texas set aside fifty (50) leagues of public land for the purpose of supporting two (2) colleges or universities of a first class. There after, on February 11, 1858, the Seventh (7th) Legislature o f the State o f Texas enacted, Article 2746 of the Revised Civil Statutes, styled and known as the “ Act to Establish the University o f Texas.” The property appropriated under the Act of 1838 for two (2) colleges or universities was set aside and dedicated to the support of the University of Texas, thereby taking from all other educational institutions, the right to receive any portion of the revenue de rived from the fifty (50) leagues of land set aside in 1839, except the University o f Texas and the branches thereof. “ On April 17, 1871, the Twelfth (12th) Legislature of the State o f Texas passed Article 3534 of the Revised Civil Statutes of the State o f Texas. This Act was styled “ An Act to Create the Agri cultural and Mechanical College of the State of Texas.” Section five (5) o f the Act placed the control and management of the Texas Agricultural and Mechanical College under the control and management of the University of Texas, and, by the same Act, the Texas Agricultural and Mechanical College was made a branch o f the University o f Texas. The Agricultural and Mechanical College o f Texas received a Federal Grant, to-wit: 100,000 acres of public land This Grant was made conditioned upon the Texas Agricultural and Mechanical College being established on or be fore the year, 1871. 19 UNIVERSITY OF TEXAS Section 10: “The Legislature shall as soon as practicable establish, organize and provide for the maintenance, support and direction of a university of the first class, to be located by a vote of the people of this State, and styled, ‘The University of Texas,’ for the promotion of literature, and the arts and sciences, including an agricultural, and mechanical department.” TEXAS A. & M. COLLEGE Section 13: “The Agricultural and Mechanical College of Texas, established by an act of the Legislature pass ed April 18, 1871, located in the county of Brazos, is hereby made, and constituted a branch of the University of Texas, for instruction in agriculture, the mechanic arts, and the natural sciences con nected therewith. And the Legislature shall at its next session, make an appropriation, not to exceed forty thousand dollars, for the construction and completion of the buildings and improvements, and for providing the furniture necessary to put said college in immediate and successful operation.” PRAIRIE VIEW COLLEGE Section 1U: “ The Legislature shall also when deemed practi cable, establish and provide for the maintenance of a college or branch university for the instruction 20 of tlie colored youths of the State, to be located by a vote of the people ; provided, that no tax shall be levied, and no money appropriated, out of the gen eral revenue, either for this purpose or for the establishment, and erection of the buildings of the University of Texas.” It is clear from these provisions of the Constitution of Texas it was intended that there should be a Univer sity of Texas with power and authority to maintain, “ a university of the first class . . . for the promotion of literature and the arts and sciences including an agricultural and mechanical department.” It is like wise clear that under the Constitution of Texas the Agricultural and Mechanical College is specifically limited to “ Instruction in agriculture, the mechanic arts and the natural sciences connected therewith.” The University of Texas is authorized to provide for educa tion in all of the arts and sciences and the agricultural and mechanical departments. Texas A. & M. College is specifically limited to agriculture and mechanical arts. Therefore all efforts on the part of the State Legisla ture to provide for education in law must be delegated to the University of Texas and cannot constitutionally be delegated to Texas A. & M. College which has no constitutional authority to provide for legal education now being constitutionally offered at the law school of the University of Texas. » The action of the state legislature in establishing “ Prairie View University” was illegal because it was 21 in direct violation of the clear intent of the Constitution of Texas. The purported action of the Board of Direc tors of A. & M. College was ultra vires. Clear indication of the true intent of the legislature of the State of Texas not to provide separate but equal educational facilities for Negroes in higher education appears in the record of the 49th Regular Session. On May 28, 1945 the legislature adopted H.B. No. 175 (Chapter 377, Acts 1945), which provided an appro priation for 1946 of $410,902.00 for Prairie View State Normal and Industrial College which is the only state institution in Texas for higher education of Negroes The amount appropriated for Prairie View was ap proximately 3.2% of $12,818,875.00 for higher educa tion of citizens of Texas. Two days thereafter, on May 30th, the Legislature adopted S.B. No. 228 (chapter 308, Acts 1945), changing the name of Prairie View State Normal and Industrial College for Colored Teach ers to “Prairie View University” which was “ authorized to provide for the establishment of courses in law, medicine, engineering, pharmacy, journalism, or any other generally recognized college course taught at the University of Texas.” Although the statute which changed the name of Prairie View admitted that at the time of the passage of the Act “ There is no adequate educational facilities for the education of the colored population of this state, it is significant beyond words that no additional appropriation appears to have been made for any of the purported new courses to be taught at “Prairie View University.” THIRD POINT THE ERROR OF THE COURT IN DENYING WRIT OF MANDAMUS ON THE GROUND THAT THE PURPORTED PROVISION FOR LEGAL TRAINING AT “PRAIRIE VIEW UNIVERSITY” MET THE RE QUIREMENTS OF THE UNITED STATES CONSTI TUTION. (Third Point Restated) STATEMENT The Court in its final judgment pointed out that “ the court is of the opinion that provision for legal training for the relator at said Prairie View University does not constitute any abridgement or denial of his consti tutional rights.” (Tr. 39) At the time the first judgment was entered in this case there was only one law school in existence being maintained by the State of Texas, i. e. the law school at the University of Texas (Tr. 31) At the time of the final judgment in this case there was no material change in circumstances. The minutes of the Board of Direc tors of the Agricultural and Mechanical College of Tex as for November 27, 1946, more than five months after the first judgment and twenty days prior to the final hearing, pointed out that “ arrangements may be made 23 for standard courses of first-year law to be given in Houston, Texas, with qualified Negro lawyers as teach ers” (S. of F. 19— italics ours). There is no evidence in this case even purporting to show the actual existence of any law school for Negroes in Texas other than the one at the University of Texas to which appellant applied and was refused admission by appellee solely because of his race and color. ARGUMENT AND AUTHORITIES LISTED I. The refusal to admit appellant to the School of law of the University of Texas constitutes a denial of rights secured under the Fourteenth Amendment. A. Distinctions on the Basis of Race and Color Are Forbidden Under Our Laws. One of the most firmly entrenched principles of American constitutional law is that discrimination by a state based on race and color contravenes the federal constitution. The 13th, 14th and 15th Amendments were specifically added to the Constitution to give Negroes full citizenship rights and to bar any future efforts to alter their status in that regard.1 The Court stated in Strauder v. Virginia: h Flack, The Adoption of the Fourteenth Amendment (1908). 24 “ This is one of a series of constitutional pro visions 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. The true spirit and meaning of the Amendments * * * can not be understood without keeping in view the his tory 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 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 be expected.” * * * * * “ . . . [the 14th Amendment] 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, -when ever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provi sions by appropriate legislation.” 25 “ If this is the spirit and meaning of the Amend ment, whether it means more or not, it is to be con strued liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States * * *. It ordains that no State shall deprive any person of life, liberty or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declar ing 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 de signed, that no discrimination shall be made against them by law because of their color? The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immun ity, or right, most valuable to the colored race— the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoy ment of the rights which others enjoy, and discrim inations which are steps towards reducing them to the condition of a subject race.” 2 * The express guarantees against discrimination on the basis of race and color run only against the states, but these guarantees are considered so fundamental to our 2. 100 U. S. 303, 306, 307 (1879); see to same effect The Slaughter House Cases, 16 Wall. (U. S.) 36 (1873); Ex parte Virginia, 100 U. S. 339 (1879). 26 political and social health that even in the absence of express constitutional prohibitions, the federal govern ment is prohibited from making any classifications and distinctions on the basis of race and color. They are re garded as arbitrary, unreasonable, constitutionality ir relevant and, therefore, violative of the 5th amendment.3 The United States Supreme Court, and American courts in general, in giving life and substance to these abstract constitutional guarantees have been required to strike down statutes and governmental action in deroga tion thereof without regard to local racial customs and practices requiring such color classification.4 B. The Rational Basis for the Equal But Sepa rate Doctrine Is That Although a State May Require Segregation, Equality Must Be Af forded Under the Segregation System. History has proved that democracy can flourish only when its citizens are enlightened and intelligent. For this reason, the states, even though under no obligation to 3. Hirabayashi v. United States. 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Ex parte Endo, 323 JJ. S. 283 (1944); see also Steele v. Louisville and Nashville R. Co., 323 U. S. 192 (1944); Tunstall v. Brotherhood o f Locomotive Firemen, 323 U. S. 210 (1944). 4. Ex parte Virginia, 100 U. S. 339 (1879); Tick Wo v. Hopkins, 118 U. S. 356 (1886); Buchanan v. Warley, 245 U. S. 60 (1917); Missouri ex rel Gaines v. Canada, 305 U. S. 337 (1938); Pierre v. Louisiana, 306 U. S. 354 (1939); Hill v. Texas, 316 U. S. 400 (1942); Alston v.Norfolk School Board, 112 F. (2d) 992 (C. C. A. 4th, 1940); cert den. 311 U. S. 693 (1940); Smith v. Allwright, 321 U. S. 694 (1944). 27 do so, have almost uniformly undertaken the task of providing free education through the elementary and high school level, and education through the college and professional level at minimum cost to the individual. Having voluntarily undertaken to provide such oppor tunities, our Constitution and laws require that such op portunities be afforded to all persons without regard to racial distinctions.3 * * Texas along with sixteen other states and the Dis trict of Columbia has established an educational system on a segregated basis, with schools set aside for the ex clusive attendance of Negroes.6 This enforced segrega tion has been regarded by some American courts as not in conflict with the requirements of the 14th Amend ment as long as the facilities afforded are equal to those afforded whites.7 The United States Supreme Court has never directly decided whether this view constituted a proper interpretation of the Constitution but has given •"'.Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also Gong Lum v. Rice, 275 U. S. 78 (1927); Ward v. Flood, 48 Cal. 36, 17 Am. Rep 405 (1874); People v. Gallagher, 93 N. Y. 438, 45 Am. Rep. 232 (1883); see also Mitchell v. United States, 313 U. S. 80 (1941). 6. Alabama, Arkansas, Delaware. Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla homa, South Carolina, Tennessee, Texas, Virginia and West Virginia. 7. Johnson v. School Board, 166 N. C. 468, 8 2 S. E. 832 (1914); and cases cited in note 5, supra. Annotations on the question, 27 L. Ed. 836 and 44 L. Ed. 262. 28 some indication that it is in agreement with this state ment of the law.8 The apparent rationalization for this rule is that the states will provide equal educational opportunities for Negroes under a segregated system and that therefore such segregation does not amount to discrimination or a denial of equal protection within the meaning of the 14th Amendment. Appellant contends that this “ equal but separate” doctrine defeats the ends which the 14th Amendment was intended to achieve. If the guarantees of this amendment are to be given life, substance and vitality, American courts will have to recognize that 8. In Plessy v. Ferguson, 163 U. S. 537 (1896) in sustaining the constitutionality o f a Louisiana statute requiring intrastate railroads to furnish separate but equal coach accommodations for whites and Negroes, the United States Supreme Court cited with approval Ward v. Flood, People v. Gallagher, supra note 5 and Roberts v. City of Boston, 5 Cush (Mass.) 198 (1849) which held that a state could require segregation of the races in its educational system as long as equal facilities for Negroes were provided. In Gong Lum v. Rice, 275 U. S. 78, 85 (1927) in passing upon the right o f a state to classi fy Chinese as colored and force them to attend schools set aside for Negroes the Court assumed that the question of the right of a state to segregate the races in its educational system had been settled in favor of the state by previous Supreme Court decisions. In Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 344 (1938) the Court said obiter dicta that right of a state to provide Negroes with educa tional advantages in separate schools equal to that provided whites had been sustained by previous Supreme Court decisions. In Mitchell v. United States, 313 U. S. 80 (1941) the Court continued to uphold the validity o f the equal but separate doctrine as applied to trans portation facilities. But in Buchanan v. Warley, 245 U. S. 60 (1917) a city ordinance which attempted to enforce residential segregation was struck down as violating the 14th Amendment, and, in general the Supreme Court has invalidated state action where it found that race or color was used as a criteria as evidenced by cases cited in not 4. The key to the difference in approach would seem to lay in Plessy v. Ferguson, supra, which involved transportation and used state cases upholding segregation in the state’s educational system to support argument that segregation in transportation was valid. 29 segregation itself amounts to an unlawful discrimina tion within the meaning of the 14th Amendment. C. Equality Under a Segregated System Is a Legal Fiction and a Judicial Myth. There is of course a dictionary difference between the terms segregation and discrimination. In actual prac tice, however, this difference disappears. Those states which segregate by statute in the educational system have been primarily concerned with keeping the two races apart and have uniformly disregarded even their own interpretation of their requirements under the 14th Amendment to maintain the separate facilities on an equal basis. 1. The General Inequities in Public Educational Systems Where Segregation Is Required. Racial segregation in education originated as a device to “keep the Negro in his place” , i. e,, in a constantly in ferior position. The continuance of segregation has been synonymous with unfair discrimination. The perpetua tion of the principle of segregation, even under the euphemistic theory of “ separate but equal” , has been tantamount to the perpetuation of discriminatory prac tices. The terms “ separate” and “ equal” can not be used conjunctively in ,a situation of this kind; there can be no separate equality. 30 Nor can segregation of white and Negro in the matter of education facilities be justified by the glib statement that it is required by social custom and usage and gen erally accepted by the “ society” of certain geographical areas. Of course there are some types of physical separa tion which do not amount to discrimination. No one would question the separation of certain facilities for men and women, for old and young, for healthy and sick. Yet in these cases no one group has any reason to feel aggrieved even if the other group receives sepa rate and even preferential treatment. There is no en forcement of an inferior status. This decidedly is not the case when Negroes are segre gated in separate schools. Negroes cure aggrieved; they are discriminated against; they are relegated to an in ferior position because the entire device of educational segregation has been used historically and is being used at present to deny equality of educational opportunity to Negroes. This is clearly demonstrated by the statis tical evidence which follows. The taxpayers’ dollar for public education in the 17 states and the District of Columbia which practice com pulsory racial segregation was so appropriated as to de prive the Negro schools of an equitable share of federal, state, county and municipal funds. The average expense per white pupil in nine Southern states reporting to the 31 U. S. Office of Education in 1939-1940 was almost 212% greater than the average expense per Negro pupil.9 Only $18.82 was spent per Negro pupil, while the same aver age per white pupil was $58.69.10 Proportionate allocation of tax monies is only one cri terion of equal citizenship rights, although an important one. By every other index of the quality and quantity of educational facilities, the record of those states where segregation is a part of public educational policy clearly demonstrates the inequities and second class citizenship such a policy creates. For example, these states in 1939- 1940 gave whites an average of 171 days of schooling per school term. Negroes received an average of only 156 days.11 The average salary for a white teacher was $1,046 a year. The average Negro teacher’s salary was only $601.12 The experience of. the Selective Service administration during the war provides evidence that the educational inequities created by a policy of segregation not only deprive the individual Negro citizens of the skills neces sary to a civilized existence and the Negro community of the leadership and professional services it so urgently 9. Statistics of the Education of Negroes (A Decade o f Progress) by David T. Blose and Ambrose Caliver (Federal Security Agency, U. S. Office of Education, 1943). Part I, Table 6, p. 6. 10. Ibid, Table 8. “ • Biennial Surveys of Education in the United States. Statistics o f State School Systems, 1939-40 and 1941-42 (1944), p. 36. 12. Blose and Caliver, op. cit., supra note 9, Part I, p. 6, Table 7. 32 needs, but also deprive the state and nation of the full potential embodied in the intellectual and physical re sources of its Negro citizens. In the most critical period of June-July 1943, when the nation was desperately short of manpower, 34.5% of the rejections of Negroes from the armed forces were for educational deficiencies. Only 8% of the white, selectees rejected for military service failed to meet the educational standards measured by the Selective Service tests.13 Lest there be any doubt that this generalization ap plies to Texas as well, let us look at the same data for the same period with respect to this state. We find that 20.5% of the Negro rejections were for educational de ficiency, while only 10.4% of the white rejections were for this reason.14 This demonstration of the effects of inequitable segre gation in education dramatizes one of the key issues which this Court must decide. Failure to provide Negroes with equal educational facilities has resulted in depriva tions to the state and nation as well as to the Negro population. The Constitution establishes a set of princi ples to guide human conduct to higher levels. If the courts reject the theory of accepting the lowest common denominator of behavior because this standard is so 13. The Black and White o f Rejections for Military Service. Mont gomery, Ala., American Teachers Association (1944), p. 6. 14. Ibid. 33 blatantly detrimental to the individual citizen, to the state, and to the nation as a whole—then they will be exercising the power which the Constitution has vested in them for the protection of the basic values of our society. 2. On the Professional School Level the Inequi ties Are Even More Glaring. As gross as is the discrimination in elementary educa tion, the failure to provide equal educational opportuni ties on the professional levels is proportionately far grea ter. Failure to admit Negroes into professional schools has created a dearth of professional talent among the Negro population. It has also deprived the Negro popu lation of urgently needed professional services. It has resulted in a denial of equal access to such services to the Negro population even an a “separate” basis. In Texas, the results of the legal as well as the extra- legal policies of educational discrimination have depriv ed the Negro population of professional services in the fields of medicine, dentistry and law. The extent of this deprivation can best be judged by the following data, in which the figures represent one lawyer, doctor and den tist, respectively, to the following number of white and Negro population:15 15. Based on data in Sixteenth Census of the United States: Popu lation, Vol. III, Part 4, Reports by States (1940). 34 Profession White Negro Law .................... ........... 709 40,191 Medicine .............. ........... 901 5,637 Dentistry ........... ....... .... 2,621 10,875 That this critical situation is not peculiar to Texas alone but is an inevitable result of the policy of racial segregation and discrimination in education is demon strated by an analysis made by Dr. Charles H. Thomp son.16 He states that: “ In 1940 there were 160,845 white and 3,524 Negro physicians and surgeons in the United States. In proportion to population these represented one physician to the following number of the white and Negro population, respectively: Section White Negro U. S................................ 735 3,651 North ............................ 695 1,800* South ............................ 859 5,300* West ............ 717 2,000* Mississippi ................... 4,294 20,000* “ A similar situation existed in the field of den tistry, as far as the 67,470 white and 1,463 Negro dentists were concerned: 16- Charles H. Thompson, “ Some Critical Aspects of the Problem of the Higher and Professional Education for Negroes,” Journal of Negro Education (Fall 1945), pp. 511-512. * To the nearest hundred. 35 Section White Negro U. S.............................. 1,752 8,800* North ...................... 1,555 3,900* South ......................... 2,790 14,000* West ............................. 1,475 3,900* Miss.................................. 14,190 37,000* “ In proportion to population there are five times as many doctors and dentists in the country as a whole as there are Negro doctors and dentists; and in the South, six times as many. Even in the North and West where we find more Negro doctors and dentists in the large urban centers, there are two and one-half times as many white dentists and doc tors as Negro. “Law-— in 1940 there were 176,475 white and 1,052 Negro lawyers in the U. S. distributed in pro portion to population as follows: Section White Negro U. S.............................. 670 12,230 North ................... 649 4,000* South ......................... 711 30,000* West .................. ........... 699 4,000* Miss.............................. 4,234 358,000* “ There are 18 times as many white lawyers as Negro lawyers in the country as a whole; 45 times as many in the South; and 90 times as many in Mis sissippi. Even in the North and West there are six times as many white lawyers as Negro. With the exception of engineering, the greatest disparity is found in law.” (Italics ours.) * To the nearest hundred or thousand. 36 The professional skills developed through graduate training are among the most important elements of our society. Their importance is so great as to be almost self- evident. Doctors and dentists guard the health of their people. Lawyers guide their relationships in a complicat ed society. Engineers create and service the technology that has been bringing more and more good to more and more people. Teachers pass on skills and knowledge from one generation to another. Social service workers minis ter to the needs of the less fortunate groups in society and reduce the amount of personal hardship, deprivation, and social friction. Yet the action of the lower Court in this case, quite aside from any legal considerations, lends the sanction of that Court to a series of extra-legal actions by which the various states have carried on ia policy of discrimina tion in education. In Texas, the 16 other states and the District of Columbia where separate educational facili ties for whites and Negroes are mandatory, the provis ions for higher education for Negroes are so inadequate as to deprive the Negro population of vital professional services. The record of this policy of educational segregation and denial of professional education to Negroes is clear. In the 17 states and the District of Columbia in 1939- 1940 the following number of states made provisions for 37 the public professional education of Negro and white students :17 Profession White Negro Medicine ....................... .... 15 0 Dentistry ................ «... .... 4 0 Law ............................. .... 16 1 Engineering................ .... 17 0 Social service...... -....... .... 9 0 Library science .......... .... 13 1 Pharmacy.................... .... 14 0 The result has been that the qualified Negro student is unable to obtain the professional education for which he may be fitted by aptitude and training. Other sections of the country, too, practice discrimina tion against Negroes in professional schools by means of “quotas” and other devices.18 But only in the South is 17. Based on data in National Survey of Higher Education for Negros, Vol. II, p. 15. 1S. “ Wherever young Americans o f ‘minority’ races and religions are denied, by the open or secret application of a quota system, the opportunity to obtain a medical, law or engineering education, apolo gists for the system have a standardized justification. “ In their racial-religious composition, the apologists contend, the professions must maintain ratios which correspond to those found in the composition of the whole population. Where the institution of higher learning left wide open to ambition and sheer merit, they argue, the professions would be ‘unbalanced’ by a disproportionate influx of Catholics, Negroes and Jews. “ Such racial arithmetic hardly accords with our vaunted prin ciples of democratic equality. In effect it establishes categories of citizenship. It discriminates against tens of millions of citizens by denying their sons and daughters a free and equal choice of profes sion. If a ratio must be imposed on the basis of race, why not on the pigmentation? Forcing a potentially great surgeon to take up some other trade makes sense only on the voodoo level of murky prejudice. 38 legal discrimination practiced and it is thus in the South that the Negro population suffers the greatest depriva tion of professional sendees. The record is quite clear, and the implications of the above data are obvious. There is another implication, however, which is not as obvious but is of almost equal importance in the long-range development of the Negro people. From the ranks of the educated professionals come the leaders of a minority people. In the course of their daily duties they transmit their skills and know ledge to the people they serve. They create by their daily activities a better, more enlightened citizenship because they transmit knowledge about health, personal care, social relationships and respect for and confidence in the law. The average Negro in the South looks up to the Negro professional with a respect that sometimes verges on awe. It is frequently the Negro professional who is able to articulate the hopes and aspirations of his peoples. The appellees, in denying the appellant access to equal educational facilities on the professional level within the State, also deny to the Negro population of Texas equal access to professional services and deprive it of one of the most important sources of guidance in citizenship. It not only deprives the citizen of his legal and human rights but, no less important, it deprives the country of his potentially valuable ser vices.”—from “ Religious Prejudices in Colleges,” by Dan W. Dodson. The American Mercury (July 1946), p. 5. 39 This denial is not only injurious to appellant, and to other Negro citizens of the State, but adverse to the in terests of all the citizens of the State by denying to them the full resources of more than 924,391 Negro citizens. D. The Requirements of the 14th Amendment Can Be Met Only Under an Unsegregated Public Educational System. The above recited data show that equal educational facilities are not maintained in those states, including Texas, where segregation is required. More than that it is impossible for equal facilities to be maintained under a segregated system. The theory that segregation is con stitutional as long as the facilities provided for Negroes are equal to those provided for whites is a proper inter pretation of the federal constitution only if the rationale on which the rule is based is correct. In those areas where segregation is enforced in education, the states concerned are least able economically to afford the estab lishment of equal facilities in all respects that are re quired if this theory is to be complied with. The facts demonstrate that they could not provide such equal facili ties even if they were so disposed to do so. It is clear, therefore, that the rationale for this “ equal but separate rule” of law is fallacious. A Fortiori, the theory is er roneous and should be discarded in light of the actualities of the situation. 40 Segregation constitutes a denial of the equal protec tion of the laws and is violative of the Constitution and the laws of the United States. Despite the line of cases in support of the “ separate but equal” theory, this Court is under an obligation to re-examine the rule and the reasons on which it is based in the light of present day circumstances and to adopt and apply a rule which con forms with the requirements of our fundamental law. E. Even Under “Equal But Separate” Doc trine,the Action of Appellees Violates the Fourteenth Amendment. Appellant, with all the requisite scholastic and moral qualifications therefor, applied for admission to the Uni versity of Texas Law School, the only law school main tained by the state for the education of its citizens. Ap pellees refused him admission because of race and color. In defense of this action appellees alleged, but failed to prove, that a law school equivalent to that of the Uni versity of Texas is now available for appellant. In the absence of any proof of this fact, it must be assumed by this court that no provision for the legal education of Negro has been made or is being made in the State of Texas. If the State of Texas is to fulfill its obliga tions to appellant under the Fourteenth Amendment and under its own Constitution, it is clear that appellant must be admitted to the University of Texas without further delay. 41 This is true under either theory discussed above. Un der the theory of appellant that segregation in Texas’ educational system violates the federal constitution, the maintenance of a school of law for the exclusive atten dance of white persons is unconstitutional. Appellant and other Negro applicants must be admitted to such school if they are to enjoy the rights and benefits guar anteed under the Fourteenth Amendment. Under the theory of appellees that segregation does not violate our fundamental law, as long as the facilities set aside for Negroes are equal to those set aside for whites, it is clear that the State cannot set up a law school exclusive ly for whites without at the same time making similar provisions for Negroes.18 In absence of proof that this in fact has been accomplished in Texas, appellees have failed in their effort to defend their position. Their refusal, therefore, to admit appellant to the law school of the University of Texas because of race and color remains an undefended, direct and illegal violation of appellant’s right under the Fourteenth Amendment and under any recognized theory of American constitutional law. ls. Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936); Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); see also other cases cited in note 5, supra. 42 CONCLUSION It is clear from the record in this case that the legisla ture and the state officers charged with the duty of administering state institutions of higher education in Texas have refused to follow the Constitution of the United States and have denied to appellant basic con stitutional rights. Today we are just emerging from a war in which all of the people of the United States were joined in a death struggle against the apostles of racism. We have already recognized by solemn sub scription to the Charter of the United Nations, particu larly Articles One and Fifty Five thereof, our duty, along with our neighbors, to eschew racism in our national life and to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Public education is one of the bulwarks of our democracy and must be offered to all citizens of Texas “ without distinction as to race, sex language or religion.” WHEREFORE, it is respectfully submitted that the judgment of the Court below is in error and should be reversed, and he prays that the judgment of the Court below be reversed and judgment here rendered for the appellant instructing the trial judge to issue the writ 43 of mandamus and he prays for such other relief as the facts and the law demands. W. J. Durham of Dallas T hurgood Marshall of New York Attorneys for Appellant. By:.......................... J. M. Nabrit C. B. Bunkley, Jr. Kenneth Lampkin H. M. Bellinger Robert L. Carter OF COUNSEL: The rule has been complied with and a copy of this brief has been delivered to the Honorable Price Daniels, At torney General of the State of Texas By: IN T H E Supreme Court of the United States October Term, 1948 No. HEMAN MARION SWEATT, vs. Petitioner, THEOPHILIS SHICKEL PAINTER, ET AL. ...... ............................... |.............. PETITION AND BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF TEXAS W . J. D urham, W illiam H. H astie, W illiam R. Ming, J r., James M. Nabrit, J r., T hurgood Marshall, Attorneys for Petitioner. R obert L. Carter, E. B. B unkley, J r., Harry Bellinger, U. S. Tate, Of Counsel. TABLE OF CONTENTS PAGE Petition foe Weit of Ceetioeaei Past One—Summary Statement of the Matter In volved _________________________________ 2 I. Statement of the Case _____________________ 2 First Hearing ____________________ _______ 3 Second Hearing_________________________ 3 Hearing on the Merits __ ...______________ 3 II. Summary of Testimony _________.___________ 5 A. The Two Law Schools ______________ ____ 6 Physical Plant i ______________________ 7 Library ________________ ______________ 7 Faculty ________________________ 7 Student Body ___________ 7 B. The Unreasonableness of C o m p u l s o r y Racial Segregation in Public Legal Edu cation __________________________________ 9 C. Inequalities Inherent in Segregated School Facilities ______________________________ 11 Past Two—Opinion of the Court Below___________ 12 Past Theee—Jurisdiction _____________________ 1 13 Part Fottb—Question Presented ________________ 13 Part Five—Reasons Relied Upon for Allowance of the Writ ___________________________ 13 Conclusion ______________________________________ 14 11 PAGE Brief in Support T hereof Opinion of the Court Below _____________________ 15 Jurisdiction _____________________________________ 15 Statement of the Case__________ ________________ 16 Errors Relied U pon_____________________________ 16 A rgument I. The question whether a state which undertakes to provide legal education for any of its citi zens can satisfy the requirements of the equal protection clause of the Fourteenth Amend ment by establishing a law school for Negroes separate from the law school it provides for all other persons is of great public importance and should be decided by this Court iii this case 17 II. The inconsistency between the judicial approval of laws imposing racial distinctions in Plessy v. Ferguson and the judicial disapproval of similar distinctions and classifications in more recent decisions should lead this Court to re view and disavow the doctrine of Plessy v. Ferguson__________________________ _________ 23 TIT. This Court should review and reverse the judg ment below to prevent the several states from being free to restrict Negroes to public edu cational facilities clearly inferior to those pro vided for all other persons similarly situated through the device of arbitrary judicial deci sion that such discriminatory action provides “ substantial equality” ______________ _________ ______ 28 Conclusion ________________________________ _______ 33 I l l Table of Cases PAGE Atchison Topeka & Santa Fe E. E. Co. v. Vosburg, 238 U. S. 5 6 _____ ________________________________ 27 Berea College v. Kentucky, 211 U. S. 45______________ 26 Bluford v. Canada, 32 F. Supp. 707__________________ 29 Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28_______ 26 Buchanan v. Warley, 245 U. S. 60____________________ 25 Colgate v. Harvey, 296 U. S. 404_____________________14,27 Connolly v. Union Sewer Pipe Co., 184 U. S. 540______ 27 Cory v. Carter, 48 Ind. 337______ ____________________ 24 Cotting v. Kansas City Stock Yards Co., 183 U. S. 79__ 27 Cummings v. County Board of Education, 175 U. S. 528 _________________________ -_________________23,24 Dawson v. Lee, 83 Ky. 49___________________________ 24 Ex Parte Virginia, 100 U. S. 339_____________________ 26 Fisher v. Hurst, 333 U. S. 147_______..._____________ 25, 30 Gong Lum v. Eice, 275 U. S. 78___....____________ 23, 24, 25 Gulf Colorado & Sante Fe E. Co. v. Ellis, 165 U. S. 150_ 27 Hall v. DeCuir, 95 U. S. 485___ _______ ...____________ 23, 26 Hartford Steam Boiler Insurance and Inspection Co. v. Harrison, 301 U. S. 459______________________ 27 Hill v. Texas, 316 U. S. 400.______________________ 25 Johnson v. Board of Trustees (File No. 625, U. S. Dist. Court for the Eastern District of Kentucky)______ 30 IV PAGE Lehew v. Brummell, 103 Mo. 546___________________ _ 24 Louisiana ex rel. Hatfield v. Louisiana State University (File 25,550, State Court for the 19th Judicial Dis trict) __________________________________________ 30 Louisville Gas & Electric Company v. Cohen, 277 U. S. 32__________________________ 27 Mayflower Farms v. Ten Eyck, 297 U. S. 266__________ 27 McCabe v. Atchison Topeka & Santa Fe E. Co., 235 U. S. 151 _________________________________ i,— 23, 26 McLaurin v. Oklahoma State Regents, et al., No. 614, October Term, 1948 ____________________________ 30 Missouri ex rel. Gaines v. Canada, 305 U. S. 337___23, 25, 29 Mitchell v. United States, 313 U. S. 80________________ 26 Morgan v. Virginia, 328 U. S. 373-------- 26 Oyama v. California, 332 U. S. 633__________________ 14, 25 Pearson v. Murray, 169 Md. 478 ____________________ 30 People v. Gallagher, 93 N. Y . 438____________________ 24 Plessy v. Ferguson, 163 U. S. 537______ 14, 23, 24, 25, 28, 29 Powers Mfg. Co. v. Saunders, 274 U. S. 490 __________ 27 Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 ___ 27 Eoyster Guano Co. v. Virginia, 253 U. S. 412 . _______ 27 Roberts v. Boston, 5 Cush. (Mass.) 198_______________ 24 Shelley v. Kraemer, 334 U. S. 1 ------------------------------- 14, 25 Sipuel v. Board of Regents, 332 U. S. 631---------2, 23, 25, 30 Skinner v. Oklahoma, 316 U. S. 535 __________________ 27 Smith v. Cahoon, 283 U. S. 553 ____________________ -— 27 V Southern Ey. Co. v. Greene, 216 U. S. 400____________ 27 State, ex rel. Michael v. Whitham, 179 Tenn. 250______ 29 State, Games v. McCann, 21 Ohio St. 210____________ 24 Strauder v. West Virginia, 100 U. S. 303______________ 25 Takahashi v. Fish & Game Commission, 332 IT. S. 410----------------------------------------------------------------- 14, 25 Truax v. Corrigan, 257 U. S. 312____________________ 27 Truax v. Eaich, 239 U. S. 3 3 ___________________ ____ 26 Virginia v. Eieves, 100 U. S. 313_____________________ 26 Ward v. Flood, 48 Cal. 36___________________________ 24 Wrighten v. Board of Trustees, 72 F. Supp. 948_____24, 29 Yiek Wo v. Hopkins, 118 U. S. 356 __________________ 25 PAGE Other Authorities Argument of Charles Sumner, Esq., Against the Consti tutionality of Colored Schools in the case of Sarah C. Roberts v. Boston, 1849__________________________ 20 Ballantine, The Place in Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Eev. 369 (1918) _________________________________ 21 Boyer, Smaller Law Schools, Factors Affecting Their Methods and Objectives, 20 Oregon Law Eev. 281 (1941) ------------------------------------------------------- ------ 21 “ Higher Education for American Democracy,” A Re port of the President’s Commission on Higher Edu- * cation, U. S. Government Printing Office, Washing ton, December, 1947 _____________________________ 19 Holmes, “ The Use of Law Schools” in Collected Legal Papers (1920)___________________________________ 21 PAGE Journal of Negro Education (1945), Vol. XIV, Fall Number ____ ___________________________________ McCormick, The Place and Future of the State Univer sity Law School, 24 N. C. L. Rev. 441____________ 21, Otto Klineberg, Negro Intelligence and Selective Migra tion (N. Y., 1935) _______________________________ Peterson & L. H. Lanier, “ Studies on the Comparative Abilities of Whites and Negroes,” Mental Measure ment Monograph, 1929 __ ________________________ Report of Board of Officers on Utilization of Negro Manpower in the Post-War Army (February, 1946) Simpson, “ The Function of a University Law School,” 49 Harv. L. Rev. 1068 ___________________ ______ 20, Sixteenth Census of the United States, Vol. I ll, Part IV (1940) ______________________________________ Stone, ‘ ‘ The Public Influence of the Bar, ’ ’ 48 Harv. L. Rev. 1 :_________________________________________ The Black and White of Rejections for Military Service, Montgomery, Ala., American Teachers Association, 1944 __________________________________________ 18, “ To Secure These Rights,” The Report of the Presi dent’s Committee on Civil Plights, U. S. Government Printing Office, 1947 ___________________- ________ Townes, Organization and Operation of a Law School, 2 Am. Law School Rev. 436 (1910)_________________ 19 22 22 22 18 22 20 22 22 18 21 IN THE Supreme Court of the United States October Term, 1948 No. H uman Marion Sweatt, Petitioner, vs. T heophilis Shickel P ainter, et al. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF TEXAS To the Honorable, the Chief Justice of the United States and the Associate Justices of the Supreme Court of the United States: Petitioner respectfully prays that a writ of certiorari issue to review the judgment of the Supreme Court of Texas denying his application for writ of error to review the judgment of the Court of Civil Appeals which had affirmed the judgment of the District Court of Travis County dis missing petition for writ of mandamus to compel respon dents to admit petitioner to the University of Texas School of Law. 2 P A R T O N E SUMMARY STATEMENT OF THE MATTER INVOLVED I Statement of the Case This case is believed to present for the first time in this Court a record in which the issue of the validity of a state constitutional or statutory provision requiring the separa tion of the races in professional schools is clearly raised.1 It is the first record which contains expert testimony and other convincing evidence showing the lack of any reason able basis for racial segregation at the professional school level, its inherent inequality and its effect on the students, the school and the state. Over a period of two years three hearings were held in the trial court. The first presented a situation in which the state excluded Negroes entirely from its state-supported law school facilities. The second came after the state had proposed to undertake the establishment of a Negro law school, and the third hearing took place subsequent to a specific tender of segregated legal training of sorts by the state. Throughout the three hearings, petitioner challenged the validity of the constitutional and statutory provisions of the state requiring racial segregation of students and the resulting exclusion of petitioner from the law school of the "University of Texas because of his race as contravening the Fourteenth Amendment. 1 There are two other cases involving a similar question. Mc- La.urin v. Oklahoma State Regents, et al., No. 614, October Term, 1948 is now pending before this Court on direct appeal. Sipuel v. Board o f Regents, et al., 332 U. S. 631 was retried in the local court, and a record made including testimony of experts in the fields of legal training, anthropology and sociology. That case is now pending on appeal before the Supreme Court of Oklahoma. 3 First H earing On May 16, 1946 petitioner filed in the 126th District Court of Travis County, Texas, a petition for a writ of mandamus alleging that he had been refused admission to the law school of the University of Texas solely because of race and color (R. 403-408). On June 17, 1946 a hearing was held, and on June 26th the district court entered an order finding that the refusal to admit petitioner was a denial of the equal protection of the laws for the reason that no provision had been made for legal training for him. The court, however, refused to grant the writ at that time and gave the respondents six months to provide a course of legal instruction substantially equivalent to that afforded at the University of Texas setting the next hearing date for December 17th (R. 424-426). Second H earing At the December 17th hearing it appeared that the state had done no more than authorize the instruction of Negroes at a non-existent law school to be established at Houston (R. 426-432). Yet, the district court entered a final order dismissing the petition for a writ of mandamus on the ground that “ the said order of June 26, 1946 has been com plied with in that a law school or legal training substantially equivalent to that offered at the University of Texas has now been made available to the Relator” (R. 433). This judgment was appealed to the Court of Civil Ap peals, and on March 26,1947 the judgment of the trial court was set aside without opinion and the cause remanded gener ally for further proceedings without prejudice (R. 434-435). H earing on the M erits On May 1, 1947 respondents filed their first amended original answer alleging that “ The Constitution and laws 4 of the State of Texas require equal protection of the law and equal educational opportunities for all qualified persons but provide for separate educational institutions for white and Negro students” (R. 415). It was further alleged that the refusal to admit petitioner was therefore not arbitrary or in violation of the Constitution of the United States since “ equal opportunities were provided for relator in another state-supported law school” (R. 415). On May 8, 1947 relator filed his second supplemental petition pointing out that the proposed law school for Negroes did not meet the requirements of the equal protec tion clause and that the continued refusal to admit peti tioner to the law school of the University of Texas was in violation of the Fourteenth Amendment and that “ insofar as respondents claim to be acting under authority of the Constitution and laws of the State of Texas their continued refusal to admit the relator ‘to the law school of the Uni versity of Texas is nevertheless in direct violation of the Fourteenth Amendment to the Constitution of the United States” (R. 412). It was also alleged that “ such consti tutional and statutory provisions of the State of Texas as applied to Relator are in direct violation of the Fourteenth Amendment to the Constitution of the United States” (R. 413).2 Thereafter, respondents filed their first supplemental answer reaffirming their reliance upon the validity of the provisions of the Constitution and laws of Texas requiring racial segregation in public education (R. 420). From May 12 to May 18, 1947, hearing was had and tes timony was taken before the district court, sitting without 2 At the trial of this case, the responsible officials of the University of Texas made it clear that they refused admission to the petitioner because of the Constitution and laws of Texas requiring segregation of the races in public education (R . 40-41, 56, 161). 5 a jury, and on June 17, 1947 judgment was entered for respondents. The judgment concluded that “ the constitu tional right of the State to provide equal educational op portunities in separate schools being well established and long recognized by the highest state and federal courts, and the facts in this case showing that Eelator would be offered equal if not better opportunities for the study of law in such separate school, the petition for Writ of Mandamus should be denied” (R. 440). (Italics ours.) The Court of Civil Appeals affirmed the judgment of the lower court on February 25, 1948 (R. 445-460). Motion for rehearing was filed on March 11, 1948 (R. 461-464) and was denied on March 11, 1948 (R. 465), with opinion appearing in the record at pages 460-461. On September 29, 1948 application for writ of error to the Supreme Court of Texas was denied without opinion, and on October 27,1948 motion for rehearing was overruled (R. 471). On January 12, 1949 this Court issued an order extend ing time to file this petition for writ of certiorari up to and including March 23, 1949 (R. 472). II Summary of Testimony The testimony offered by the respondents was limited to the question of the alleged physical equality between the law school at the University of Texas and the law school for Negroes. The respondents produced no evidence to justify the state’s constitutional and statutory provisions requiring the segregation of the races in public law schools. On the other hand, petitioner offered the uncontradicted testimony of expert witnesses showing: (1) that there is 6 no rational basis for compulsory racial segregation in public education; (2) that there are no recognizable racial differ ences as to capacities between students of different races; and (3) that compulsory racial segregation in public edu cation is harmful to the students of all groups and the community. Petitioner also produced expert testimony showing that it is impossible for a law school student to get an education in a school limited to one racial group equal to that obtained in a law school to which all other groups are freely admitted. Expert testimony offered by the peti tioner also showed the inevitable inequalities inherent in a public school system maintained on a basis of racial segre gation. A T h e T w o Law Schools Although Negroes have always been excluded from the University of Texas because of their race or color, the State of Texas has never offered them “ separate but equal” facilities (R, 56). As Dean Pettinger, a witness for respon dents who has studied educational facilities for Negro and white students in Texas for thirty years, stated: “ I am un able to think for the moment of colored institutions and white institutions which do have equal facilities with which I have been associated” (R. 33). When petitioner applied for a legal education the only law school in existence maintained by the State of Texas was the one at the University of Texas (R. 425). The University of Texas has been in existence since the last century. The law school has been in existence for more than fifty years and is recognized and accredited by every association in the field (R. 90-91). The Negro school had just been opened in March, 1947 and was not ac credited by any agency (R. 96, 25). 7 Physical Plant The proposed Negro law school was to be set up in the basement8 of a building in downtown Austin consisting of three rooms of moderate size, one small room and toilet facilities (R. 36). There were no private offices for either the members of the faculty or the dean. The space for this law school had been leased for a period from March to August 31, 1947 at $125 a month, and the authorities were negotiating for a new lease after that period (R. 41). It was freely admitted that “ there is no fair comparison in monetary value” between the two schools (R . 43). There was no assurance as to where the proposed law school would be located after August 31st, and it was not even certain as to what city it would be in after August 31st (R . 52-53). Library While the law school at the University of Texas had a well-rounded library of some 65,000 volumes (R . 133), the proposed Negro school had only a few books, mostly case books for use of first-year students (R . 21-22). However, the students at the proposed law school for Negroes had access only to the law library in the state capitol directly across the street, a right in common with all other citizens of the State of Texas (R . 45). A library of approximately 10,000 volumes had been requisitioned on February 25, 1947 (R. 40) but was not available for use at the time of the opening of the Negro school on March 10 nor at the time of the trial of this case (R . 44). The University of Texas law school had a full-time, qualified and recognized law librarian with two assistants (R . 139). The Negro law 3 3 Pictures of the building of the Law School at the University of texas and the basement quarters o f the so-called Negro law school appear in the record at pages 385-387 and 389. 8 school had neither librarian nor assistant librarians (R. 74, 80, 128). It was admitted that the library at the state capitol, a typical court library and not a teaching library, was not equal to the one at the University of Texas, and did not meet the standards of the Association of American Law Schools (R. 134, 138, 145). It was also admitted that even if the requisitioned books were actually obtained the library would not then be equal to the library already in existence at the law school of the University of Texas (R. 151). F aculty The University of Texas Law School has a faculty con sisting of sixteen full-time and three part-time professors (R. 369-371). The proposed faculty for the Negro school was to consist of three professors from the University of Texas who were to teach classes at the Negro school in addition to their regular schedule at the University of Texas (R. 59, 84, 87).4 The comparative difference in value between full-time and part-time law school professors was freely acknowledged and it was admitted that the proposed “ faculty” did not meet the standards of the Association of American Law Schools (R. 59, 91-92). S tudent B od y There were approximately eight hundred fifty students at the lawT school of the University of Texas (R. 76). From the record it appears that all qualified students other than Negroes were admitted. There were no students at the proposed Negro school at the date of opening nor at the time of the trial (R. 162). Although several Negroes had made inquiry concerning the school, none had applied for 4 It was also shown that offices for the dean and faculty members involved were to remain at the University o f Texas (R . 46-47). 9 admission (E. 162). If petitioner had entered this school he would have been the only student. The law school of the University of Texas had a moot court, legal aid clinic, law review, a chapter of Order of the Coif, and a scholarship fund (E. 102-105). None of these were present or possible in the proposed Negro law school, and Charles T. McCormick, dean of the two law schools, testified that he did not consider these to be factors ma terial to a legal education but rather, that they were “ ex traneous matters” (E. 106). B T he U nreasonableness o f C om pulsory R acial Segregation in Public Legal Education Dr. Eobert Eedfield, Chairman of the Department of Anthropology at the University of Chicago, testified, as an expert, that there is no recognizable difference as to ca pacities between students of different races and that scien tific studies had concluded that differences in intellectual capacity or ability to learn have not been shown to exist between Negroes and other students. He testified that as a result of his training and study in his specialized field for some twenty years, it was his opinion that given a similar learning situation with a similar degree of preparation, one student would do as well as the other, on the average, with out regard to race or color (E. 192-194). Dr. Eedfield testified further that the main purpose of education is to develop in every citizen, in accordance with the natural capacities of such citizen, the fullest intellectual and moral qualities and the most effective participation in the duties of citizenship (E. 192). Dean Earl G. Harrison of the University of Pennsyl vania Law School, testifying as an expert in the field of 10 legal education, summed up the purposes of legal education as follows: “ The studies that I have reference to have pointed out in general that there are four objectives of law school education. One is, of course, to prepare the prac titioner. Second, is to prepare and train law teachers. Third, is to train and prepare men for legal research, and the fourth objective is to train and prepare men and women for public service” (E. 220). Professor Malcolm Sharp of the law faculty of the Uni versity of Chicago testified as an expert in the field of legal education and explained in detail the purposes of legal training for public service giving examples of the benefits to society of Negro lawyers trained for public service in non-segregated law schools (E. 344-346).* The experts on legal education also testified as to the patent inequality between the two law schools and the im possibility of equality between the schools. They agreed that it was absurd to speak of any institution that has one student as a law school (E. 216-217, 349-350). They stressed the need for competition among students of all classes as an absolute necessity for a legal education (E. 218, 344, 347). They testified that moot court, Order of the Coif, scholarship fund, law reviews and legal aid clinics were most important for a well-rounded legal education and that they were “ not by any means extraneous” (E. 221, 347). 5 5 “ Q. Now, as a result o f your studies and your teaching ex perience, along with your experience in the Association of American Law Schools, would you state briefly the recognized purposes o f a law school as of today? “ A. The purpose of a law school is, o f course, first; to train for practice of the profession in the familiar way. The second purpose has been becoming more and more important, as all o f the leading schools have recognized, training for positions of public service, as lawyers are called on to fill, to a marked extent, administrative agencies, the bench, legislative positions. The schools are paying more and more attention to training for that purpose. O f course, the training of teachers and scholars in the field.” 11 These expert witnesses also testified that a sizeable body of students of all races, classes and walks of life was of major importance to an adequate legal education. They denied that one Negro or a few Negroes at a segregated law school could under any circumstances obtain a legal educa tion equal to that obtained at the University of Texas (R. 227, 343, 344, 347, 350, 351, 352). Each of the expert witnesses offered by the petitioner testified that compulsory racial segregation in public educa tion not only made it impossible for the Negro to get an education equal to that offered to the students in the other school but was harmful to the segregated Negro students, the students in the other schools, and the community in gen eral (R. 194-196, 198-199, 227, 341). c Inequalities Inherent in Segregated School Facilities The petitioner offered in evidence several reports of governmental agencies, federal and state, showing without exception the inequalities in educational facilities in segre gated schools throughout the states where segregated schools are required (R. 248). The petitioner also offered the testimony of Dr. Charles Thompson, documented by recognized governmental reports, showing conclusively that wherever separate schools were maintained under state law for Negro students, these schools were without exception inferior to the schools maintained for students of other racial groups. The comparison was broken down into each category recognized bv educators as valid for comparison purposes (R. 228-283).® An appendix showing ® Dr. Thompson’s testimony was admitted into the record but by final order of the District Judge was ordered stricken from the record as being beyond the scope of the pleadings and issues and immaterial and irrelevant (R . 441). 12 in detail the inequalities in segregated school systems is filed herewith as “ Petitioner’s Appendix” . Petitioner also offered the testimony of Donald G. Murray who had been admitted to the law school of the University of Maryland as a result of legal action and who was the first Negro to he admitted to a law school in a state where segregation is required in public schools. Ob jection to this testimony was sustained but the testimony was placed in the record on a bill of exceptions (R. 288). This testimony showed that although dire consequences were predicted by state officials of Maryland if Murray was admitted to the law school, it developed that his admission brought about no untoward results (R. 288-291). P A R T T W O O P IN IO N O F T H E C O U R T B E L O W The Court of Civil Appeals in affirming the judgment of the lower court based its decision on existence of and the validity of the state’s policy of segregation and found that “ the State at the time of the trial had provided and made available to Relator a course of instruction in law as a first year student, the equivalent or substantial equivalent in its advantages to him of that which the State was then pro viding in the University of Texas Law School. We are not dealing here with abstractions but with realities” (R. 449). The judgment of the Supreme Court of Texas refusing application for writ of error (R. 446) and order overruling motion for rehearing were made without an opinion (R. 47). The opinions of the trial court are discussed in Part One. 13 P A R T T H R E E JURISDICTION Jurisdiction of this Court is invoked under Title 28, United States Code, section 1257 this being a case involving rights secured under the Fourteenth Amendment. Peti tioner’s cause is founded upon rights secured by the Consti tution of the United States. P A R T F O U R QUESTION PRESENTED May the State of Texas Consistently With the Requirements of the Fourteenth Amendment Refuse to Admit Petitioner Because of Race and Color to the University of Texas School of Law? P A R T F I V E REASONS RELIED UPON FOR ALLOWANCE OF THE WRIT I The courts of Texas, and of many states, while pretend ing to observe the requirements of equal protection of the laws in educational matters, approve the exclusion of Negroes from adequate public law schools, thus denying to large numbers that equality of educational opportunity which is the very foundation of democracy. The courts’ theory presupposes that the equality guaranteed by the Fourteenth Amendment can be realized in a pattern of com pulsory racial segregation in public education. The extent of this practice and the severity of its impact on the com munity are such as to warrant consideration by this Court. 14 II The court below relied on Plessy v. Ferguson. The in consistency between the judicial approval of laws imposing racial distinctions in Plessy v. Ferguson and the judicial disapproval of similar distinctions and classifications in more recent decisions including Oyama v. California, Shelley v. Kraemer, Takahashi v. Fish & Game Commission should lead this Court to review the correctness of the doc trine of Plessy v. Ferguson and overrule it.7 III This Court should review and reverse the judgment be low to prevent the several states from being free to restrict Negroes to public educational facilities clearly inferior to those provided for all other persons similarly situated through the device of arbitrary judicial decision that such discriminatory action provides “ substantial equality” . CONCLUSION W herefore, it is respectfully submitted that this petition for writ o f certiorari to review the judgment of the court below, should be granted. W. J. D urham, W illiam H. Hastie, W illiam R. Ming, Jr., J ames M. Nabrit, J r., T hurgood Marshall, R obert L. Carter, Attorneys for Petitioner. E. B. B unkley, Jr., Harry B ellinger, U. S. Tate, Of Counsel. 7 Plessy v. Ferguson, 163 U. S. 537; Oyama v. California, 332 U. S. 633 ; Shelley v. Kraemer, 334 U. S. 1; Takahashi v. Fish and Game Commission, 332 U. S. 410. As to this Court’s disapproval of unreasonable classifications generally, see, for example, Colgate v. Harvey, 296 U. S. 404. 1ST THE Supreme Court of the United States October Term, 1948 No. H eman Marion Sweatt, Petitioner, vs. T heophilis Shickel, P ainter, et al. BRIEF IN SUPPORT OF PETITION FOR W RIT OF CERTIORARI TO THE SUPREME COURT OF TEXAS Opinion of the Court Below The opinion of the Court of Civil Appeals can be found at page 445 of this record, and that of the District Court of Travis County is reported at page 438. Jurisdiction Jurisdiction of this Court rests upon Title 28, United States Code, Section 1257. The District Court of Travis County entered judgment for respondents on June 17, 1947. 15 16 Judgment was affirmed by Court of Civil Appeals, Febru ary 25, 1948. Application for writ of error was refused by Supreme Court of Texas on September 29, 1948 (R. 466). Motion for rehearing was overruled on October 27, 1948 (R. 471). On January 12,1948 this Court extended the time for filing this petition for writ of certiorari until March 23, 1949 (R. 472). Statement of the Case Pertinent facts involved in this case are set out in the petition itself, and therefore, are not restated here. Errors Relied Upon The Court erred in refusing to consider evidence show ing discriminatory features inherent in enforced racial separation at the professional school level. The Court erred in predicating its decision upon Plessy v. Ferguson and in disregarding principles serving the basis for more recent decisions of this Court in conflict with the rationale of that case. The Court erred in refusing to hold that the racial classi fication here complained of was arbitrary and unreasonable within the meaning of the Fourteenth Amendment. The Court erred in finding that the law school for Negroes at Austin was the “equivalent or substantial equi valent of the law school of University of Texas” . The Court erred in finding that the constitutional and statutory provisions of the State of Texas requiring segre gation in public education were consistent with the require ments of the Fourteenth Amendment. 17 A R G U M E N T I The question whether a state which undertakes to provide legal education for any of its citizens can sat isfy the requirements of the equal protection clause of the Fourteenth Amendment by establishing a law school for Negroes separate from the law school it pro vides for all other persons is of great public impor tance and should be decided by this Court in this case. The education of the youth of our nation, formerly the responsibility of the parent, has now become a recognized function of government. This has become a matter of national importance. The individual states have provided public education through the graduate and professional school levels. Most of the states provide educational facili ties without regard to the race or creed of the student. However, seventeen of the states have insisted upon either the complete exclusion or the segregation of Negroes in public education.1 The record of these states has brought down the national level of education. The question of the legality of such racial segregation, which amounts to actual exclusion from the regular recognized state university, is of great public importance. The seventeen southern states where a pattern of edu cational segregation is sanctioned and enforced by state law comprise the area of our country which is least able to afford either the financial or the educational hazards created ty a dual system of education. The burden on the treasury m maintaining a dual system of education cannot help but 1 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla homa, South Carolina, Tennessee, Texas, Virginia, West Virginia. 18 be reflected in a deprivation of educational opportunities and facilities for all groups. The impact of this policy of segregation is felt not only by the minority group, but the nation as a whole. In the most critical period of June-July, 1943, when the nation was crying for manpower, 34.5% of the rejections of Negroes from the armed forces were for educational de ficiency. Only 8% of the white selectees rejected for mili tary service failed to meet the educational standards.2 The official War Department report on the utilization of Negro manpower in the postwar Army says that “ in the placement of men who were accepted, the Army encountered considerable difficulty. Leadership qualities had not been developed among the Negroes, due principally to environ ment and lack of opportunity. These factors had also af fected development in the various skills and crafts.” 3 Recognizing that segregation constitutes a menace to American freedom and was indefensible, the President’s Committee on Civil Rights unequivocally recommended it's elimination from American life.4 In the same year, the 3 The Black and White o f Rejections for Military Service, Mont gomery, Ala., American Teachers Association, 1944, p. 5. 8 Report o f Board o f Officers on Utilization o f Negro Manpower in the Post-War Army (February, 1946), p. 2. 4 “ To Secure These Rights” , The Report o f the President’s Com mittee on Civil Rights, U. S. Government Printing Office, 1947, p. 166 “ The separate but equal doctrine has failed in three important respects. First, it is inconsistent with the fundamental equalitari- anism o f the American way o f life in that it marks groups with the brand o f inferior status. Secondly, where it has been followed, the results have been separate and unequal facilities for minority peoples. Finally, it has kept people apart despite incontrovertible evidence that an environment favorable to civil rights is fostered whenever groups are permitted to live and work together. There is no adequate de fense of segregation.” Ibid. 19 President’s Commission on Higher Education, in its report on education in the United States said:5 “ The time has come to make public education at all levels equally accessible to all, without regard to race, creed, sex or national origin.” This, too, is the almost unanimous conclusion of scholars and students who have studied the problem. The professional skills developed through graduate training are among the most important elements of our society. Their importance is so great as to be almost self- evident. Teachers pass on skills and knowledge from one generation to another. Engineers create and service the technology that has been bringing more and more good to more and more people. Doctors and dentists guard the health of their people. Lawyers guide their relationships in a complicated society. Racial inequality in education has resulted in a loss to the nation of the development of these professional skills in a great part of our population. Because of the limited op portunities open to Negroes in professional education, in the United States in 1940, there was one white physician for every 735 white citizens, but only one Negro doctor for every 3,651 Negroes.6 And one white lawyer served 670 whites, but there was only one colored lawyer for every 12,230 Negro citizens.7 In the petitioner’s native state of Texas, the same deprivation of professional services exists. In 1940 in Texas, one white lawyer served 709 whites, 5 “ Higher Education for American Democracy” , A Report o f the President’s Commission on Higher Education, U. S. Government Printing Office, Washington, December, 1947, p. 38. 6 Journal o f Negro Education (1945), Yol. X IV , Fall number, p. 511. 7 Ibid, p. 512. 20 whereas there was only one Negro lawyer for every 40,191 Negroes.8 Perhaps even more important than the barriers which segregation offers to the development of leadership and professional skills is its corrosive effect upon the funda mentals of a democratic society. Neither white nor Negro Americans can maintain complete and full allegiance to the basic tenet upon which onr government is founded—“ that all men are created equal” —when pupils are being forcibly kept apart in the public schools because of their racial iden tity. It is essential for the successful development of our country as a nation of free people that the sympathies and tolerance which we wish practiced in later life be fostered in the classroom. “ And since according to our institutions, all classes meet, without distinction, in the performance of civil duties, so should they all meet, without distinction of color, in the school, beginning there those relations of equality which our Constitution and laws promise to all.” 9 Enforced separation in the law school, moreover, is par ticularly pernicious because of the vital importance which the lawyer maintains in our society. Law is “ a public pro fession charged with inescapable social responsibilities.” 10 The prime purpose of legal training must be not merely, as Mr. Justice H olmes has said, “ to make men smart, but to 8 Based on data in Sixteenth Census o f the United States: Popu lation, Vol. I l l , Part 4, Reports by States (1940). 9 Argument o f Charles Sumner, Esq., Against the Constitution ality o f Colored Schools in the case o f Sarah C. Roberts v. Boston, 1849, pp. 29-30. 10 Simpson, “ The Function o f a University Law School” , 49 Harv. L. Rev. 1068, 1072. 21 make them wiser in their calling” ,11 and “ to train men for public service.” 12 The testimony of the expert witnesses in legal education called by the petitioner 13 is amply supported by other ex perts. Eminent authorities in the field of legal education have demonstrated that there are certain features of a law school which are necessary to a proper legal education which can only be found in a full-time, accredited law school.14 Some of these are: a full-time faculty,15 a varied and inclu sive curriculum,16 an adequate library, well-equipped build ing and several classrooms,17 a well-established, recognized law review and a moot court.18 Equally essential to a proper legal education in a demo cratic society is the inter-change of ideas and attitudes which can only be effected when the student-body is repre sentative of all groups and peoples. Exclusion of any one 11 Holmes, “ The Use o f Law Schools” in Collected Legal Papers (1920), pp. 39-40. 12 Malcolm Sharp, testimony at p. 341 in Record. See also Mc Cormick, “ The Place and Future o f the State University Law School,” 24 N. C. L. Rev. 441, “ As we rebuild our curricula, it seems that niore attention should be given to the knowledge that a lawyer needs in order to be a community leader— such matters as planning, zoning, and housing come to mind— and to the adaptation o f the public law courses not only to the needs of the lawyer serving private clients, but to the requirements of graduates who will enter the service o f the state and national governments.” 13 The testimony o f these witnesses is summarized in the petition at pages 9 to 11. 14 See Boyer, “ Smaller Law Schools: Factors Affecting Their Methods and Objectives,” 20 Oregon Law Rev. 281 (1941). 15 Ibid. 18 Ibid. 17 Townes, “ Organization and Operation o f a Law School,” 2 Am. Law School Rev. 436 (1910) ; Ballantine, “ The Place in Legal Education of Evening & Correspondence Law Schools,” 4 Am. Law School Review 369 (1918). 18 See Boyer, “ Smaller Law Schools: Factors Affecting Their Methods and Objectives,” 20 Oregon Law Rev. 281 (1941). group on the basis of race, automatically imputes a badge of inferiority to the excluded group—an inferiority which has no basis in fact.19 The role of the lawyer, moreover, is often that of a law-maker, a “ social mechanic” , and a “ social inventor.” 20 A profession which produces future legislators and social inventors to whom will fall the social responsibilities of our society, can not do so on a segregated basis.21 It is evident that even if it were possible to construct a law school building for Negroes equal in all respects to the one now in existence at the University of Texas with a library equal in all respects, with a faculty of equal num ber and equal ability (if possible), the separate law school could not meet the recognized requirements set out above. Actually, in so far as legal education is concerned, an equal education is impossible in a jim-crow law school. Even apart from this, it is absurd to speak of a school with only one student as a law school. In the field of legal education, even more so than in other fields of public edu cation, the blind adherence to the practice of compulsory racial segregation not only deprives the individuals in volved of the equality of law, but deprives the state and the nation of properly trained specialists necessary to our government. 19 ‘ ‘The Black and White o f Rejections for Military Service,” American Teachers Association, August, 1944, page 29; Otto Kline- berg, “ Negro Intelligence and Selective Migration,” New York, 1935 ; J. Peterson & L. H. Lanier, “ Studies in the Comparative Abili ties o f Whites and Negroes,” Mental Measurement Monograph, 1929. 20 Simpson, “ The Function of a University Law School,” 49 Harv. L. Rev. 1068, 1072. See also McCormick, “ The Place and Future of the State University Law School,” 24 N. C. L. Rev. 441. 21 Simpson, op. cit., p. 1069. See also Stone, “ The Public Influ ence o f the Bar,” 48 Harv. L. Rev. 1. II The inconsistency between the judicial approval of laws imposing racial distinctions in Plessy v. Ferguson and the judicial disapproval of similar distinctions and classifications in more recent decisions should lead this Court to review and disavow the doctrine of Piessy v. Ferguson. In upholding the denial of petitioner’s application for a writ of mandamus, the Court of Civil Appeals said: “ The validity of state laws which require segregation of races in state-supported schools, as being, on the ground of segre gation alone, a denial of due process, is not now an open question. The ultimate repository of authority to construe the Federal Constitution is the Federal Supreme Court. We cite chronologically, in a note below, the unbroken line of decisions of that tribunal recognizing or upholding the validity of such segregation as against such attack.” In support of this proposition, Hall v. DeCuir, 95 U. S. 485; Plessy v. Ferguson, 163 U. S. 537; Cummings v. County Board of Education, 175 U. S. 528; McCabe v. Atchison, T. & 8. F. R. Co., 235 U. S. 151; Gong Lum v. Rice, 275 U. S. 78; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 U. S. 631 were cited. Plessy v. Ferguson raised in this Court for the first time the question of the constitutionality of a state statute en forcing segregation based upon race and color. In that case, a Louisiana statute requiring the separation of Negro and white passengers was held to be consistent with the equal protection clause of the Fourteenth Amendment. Yet the opinion appears to rely heavily upon the leading state case in this field—and the only one of the cited cases dis- 24 cussed in the majority opinion22—Roberts v. Boston, 5 Cush. (Mass.) 198 (1849), decided almost twenty years be fore the adoption of the Fourteenth Amendment. Yet, it was the very diversity of opinion, so pronounced in 1849, on the reasonableness of legal distinctions based on race which the Fourteenth Amendment sought to settle. Ante bellum justifications of segregation have no more logical place in the interpretation of the Fourteenth Amendment than antebellum notions of voting restrictions have in de fining the scope and meaning of the Fifteenth Amendment. In addition, Plessy v. Ferguson was decided upon plead ings which assumed a theoretical equality within segrega tion rather than on a full hearing and evidence which would have revealed equality to be impossible under a system of segregation. An examination of the other decisions of this Court upon which the lower court relied shows that the doctrine of Plessy v. Ferguson has not been reexamined nor seriously challenged. In Cummings v. Board of Education, supra, the issue of the validity of the segregation statute was not even raised. In fact plaintiffs there acquiesced in the use of taxes levied to support segregated schools at the elementary and inter mediate grammar school levels. The main purpose of the suit was to secure an injunction forcing the discontinuance of a high school for whites since no school was being maintained for Negroes. This remedy the Court considered improper. In Gong Lum v. Rice, supra, again the question was not raised. The primary issue there was whether a Chinese * 93 22 Other cases cited in the opinion include: People v. Gallagher, 93 N. Y . 438; and Ward v. Flood, 48 Cal. 36; State, Games v. M c Cann, 21 Ohio. St. 210; Lehew v. Brummell, 103 Mo. 546; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49. 25 could be excluded from the white schools under the segre gation statutes of Mississippi, and could be classified as a colored person and required to attend the Negro school.23 In the Gaines case, supra, although the doctrine of Plessy v. Ferguson was repeated, it was neither examined nor applied. There the main issue before the Court was whether a qualified Negro applicant could be excluded from the only state supported law school. The Court decided that question in the negative. In Sipuel v. Board of Regents, supra, the doctrine of Plessy v. Ferguson was neither raised, examined, re peated nor applied. The Court specifically stated that the appellant was entitled to receive educational benefits at the same time and as soon as it was offered to applicants of any other group. Moreover in Fisher v. Hurst, 333 U. S. 147, the same case, supra, this Court was asked to issue an original petition for a writ of mandamus to compel com pliance with its mandate there. The Court denied the writ on the grounds that the original Sipuel case had specifically not raised the issue of the validity of the segregation stat utes and that procedurally the question could not be con sidered on the petition for writ of mandamus. 23 It is true that Mr. Chief Justice T a f t , op. cit., supra, at page 85 in discussing the issue said: “ Were this a new question it would call for very full argument and consideration, but we think that it is the same question which has been many times decided to be within the constitutional power o f the State Legislature to settle without intervention o f the Federal Courts under the Federal Constitution.” Therefore, even if this decision is construed as raising the issue o f the validity o f school segregation statutes, it is clear that the doctrine was not examined and that Plessy. v. Ferguson was relied upon without question. This is the group of cases upon which the separate but equal doctrine under the Fourteenth Amendment is said to depend.24 The inconsistencies between the “ separate hut equal” doctrine of Plessy v. Ferguson and the reasoning and holdings of a considerable body of decisions of this Court become readily apparent when analysis is made in terms of the fundamental question, common to all, whether racial differences can be made the bases for legislative dis tinctions in the face of the Fourteenth Amendment. Except in Plessy v. Ferguson, supra, and the decisions which rely uncritically upon it, this Court has consistently concluded that the Fourteenth Amendment prohibits the states from making racial differences and other arbitrary distinctions the bases for general classifications. This impressive and carefully considered group of cases includes: Takahashi v. Fish <& Game Commission, 332 U. S. 410, 420 L. ed. 1096, 1101; Oyama v. California, 332 U. S. 633, 640, 646; Shelley v. Kraemer, 334 U. 8. 1, 20, 23; Yick Wo v. Hopkins, 118 U. S. 356, 373, 374; Buchanan v. Warley, 245 U. S. 60, 82; Hill v. Texas, 316 U. S. 400, 404; Strauder v. West Virginia, 100 U. S. 303, 307, 308; Truax v. Raich, 239 U. S. 33, 41, 42; 24 Another case in point but not relied upon by the court below is Berea College v. Kentucky, 211 U. S. 45. That case appears to accept the doctrine insofar as the power o f the state to place conditions on a corporate charter. Hall v. DeCuir, supra; McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151; Mitchell v. United States, 313 U. S. 80 were decided under the Commerce Clause o f the Federal Constitution and need not be considered in a decision as to the validity o f the equal but separate doctrine within the meaning o f the Four teenth Amendment. The foundation of even those cases, however, seems to have been shaken. Compare Morgan v. Virginia, 328 U. S. 373; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28. 27 Virginia v. Rieves, 100 U. S. 313, 322; Ex Parte Virginia, 100 U. S. 339, 344, 345.23 These eases merely apply to racial distinctions the gen eral constitutional principle applicable in all other areas. Their rationale is merely a part of and consistent with the basic principle that all governmental classifications must be based upon a significant difference having a reasonable rela tionship to the subject matter of the statute. Southern Railway Co. v. Greene, 216 U. S. 400, 417; Gulf Colorado & Sante Fe Railway Co. v. Ellis, 165 U. S. 150, 155; Connolly v. Union Sewer Pipe Co., 184 U. 8. 540, 559, 560; Atchison Topeka <& Santa Fe Railway Co. v. Vosburg, 238 U. S. 56, 60, 61; Royster Guano Co. v. Virginia, 253 U. S. 412, 416, 417; Smith v. Cahoon, 283 IT. S. 553, 566, 567; Hartford Steam Roller Inspection <fs Insurance Co. v. Harrison, 301 IT. S. 459, 462, 463; Colgate v. Harvey, 296 IT. S. 404, 422, 423; Mayflower Farms v. Ten. Eyck, 297 IT. S. 266, 274; Skinner v. Oklahoma, 316 IT. S. 535, 541, 542; Louisville Gas <& Electric Co. v. Cohen, 277 IT. S. 32, 37; Quaker City Cab Co. v. Pennsylvania, 277 IT. S. 389, 400; Powers Mfg. Co. v. Saunders, 274 IT. S. 490, 493; Truax v. Corrigan, 257 IT. S. 312, 337; Cotting v. Kansas City Stock Yards Co., 183 IT. S. 79, 106, 107. 25 25 Takahashi v. Fish & Gdme Commission; Yick W o v. Hopkins and Truax v. Raich involved the right to engage in a useful occupa tion. Oyama v. California, Shelley v. Kraemer and Buchanan v. Warley involved the right to own, occupy, sell and lease real prop erty. Hill v. Texas, Strauder v. W est Virginia, Virginia v. Rieves and E x Parte Virginia, involved the right of Negroes to be free o f discrimination in the selection and composition of grand and petit juries. Despite the different problems involved, the Court made the same fundamental approach to each case. Underlying each decision is the basic proposition that race alone cannot be a valid criterion upon which to sustain governmental action under the 14th Amendment. Finding on examination that the real purpose and effect of the state’s action was racial discrimination, no difficulty was encountered in declaring the action unconstitutional. 28 Neither the decision nor the rationale of Plessy v. Fer guson can be reconciled with this impressive body of au thorities. The Court below in relying on Plessy V. Ferguson and in ignoring this body of cases has improperly and mistakenly construed the limitations of the Fourteenth Amendment as applied to the instant case. For not only is Plessy v. Fer guson inconsistent with many decisions of this Court, but it was wrongly decided. In sustaining a statute based upon a difference in the color of citizens, this Court made a radical departure from the body of cases, cited supra, under which such a distinction would have necessarily' been con strued as arbitrary and therefore unlawful. In requiring that a classification be based upon a significant difference having a reasonable relationship to the subject matter of the statute, that body of decisions rests upon a sound founda tion. The same principle should be controlling in the in stant case. Any other approach makes the equal protection clause meaningless. Insofar as Plessy v. Ferguson affects the application of that principle to the instant case, it should not be followed. Ill This Court should review and reverse the judgment below to prevent the several states from being free to restrict Negroes to public educational facilities clearly inferior to those provided for all other persons simi larly situated through the device of arbitrary judicial decision that such discriminatory action provides “sub stantial equality” . Texas and sixteen other states have insisted that public education can only be furnished on a basis of racial distinc 29 tion between students. The purpose of this practice is to exclude Negroes from the recognized state educational in stitutions. The record in this case, as in other cases, will demonstrate that these states first establish facilities for non-Negroes. Later, either as a result of legal action or other compulsion, separate institutions have been estab lished for Negroes. The record in this case, the record in similar cases, governmental and private studies, demonstrate clearly that the separate Negro facilities are never equal to the facilities established for other groups. In short, we have been unable to find a single recognized study of public education on a segregated basis which reveals equality of opportunity as between the segregated and non-segregated schools. The Negro school is invariably an inferior school. The “ separate but equal” doctrine of Plessy v. Ferguson, relied upon by Texas and the other southern states is based on the hypothesis that equal facilities can be realized in a segregated school system. The record in this case and in other cases has demonstrated the invalidity of such a hypothesis. It is clear not only that the doctrine of “ separate but equal” has not produced equality, but can never provide the equality required by the Fourteenth Amendment. This separate but equal doctrine has brought about con stant and continual litigation. Negroes have gone to the courts in Missouri,26 South Carolina,27 Tennessee,28 Louisi- *8 Missouri, ex rel. Gaines v. Canada, supra; Bluford v. Canada, a o'i ? upP- (1940) (Appeal dismissed 119 F. (2d) 779 (C. C.A . 8th) ) . 27 W rightenv. Board o f Trustees, 72 F. Supp. 948. 28 State, ex rel. Michael v. Whitham, 179 Tenn. 250 165 S W (2d) 378 (1942). 30 ana,29 Oklahoma,30 * Maryland,81 Kentucky,32 and Texas in order to secure educational advantages equal to those being offered to all other qualified persons. The formula con stantly invites such court action. In all instances this has meant loss of time and years out of an individual’s career, while his case pursues its way through the courts. This very fact shows the weakness of the doctrine. The states are more interested in maintaining segrega tion than in affording equality. Hence the separate but equal doctrine has now become the “ separate but substan tially equivalent” doctrine. The record in this case is a clear example of the circuitous route forced upon a Negro litigant seeking only to enforce a right recognized as belong ing to every other qualified applicant except those who happen to be Negroes. Petitioner in this case applied for admission to the exist ing state law school on February 26, 1946. All qualified students other than Negroes who applied at the same time and who successfully passed their examinations are now either practicing law or are ready to take the bar examina tion for that purpose. On the other hand, the petitioner, solely because of his race and color, after long, extended and involved litigation is still without a legal education. 29 Louisiana, ex rel. Hatfield v. Louisiana State University (File 25,520, State Court for the 19th Judicial District). S0Sipuel v. Board o f Regents, supra; Fisher v. Hurst, supra; McLaurin v. Oklahoma State Regents, No. 614, U. S. Supreme Court, Oct. Term, 1948. 81 Pearson v. Murray, 169 Md. 4^8, 182 Atl. 590 (1936). 32 Johnson v. Board o f Trustees (File No. 625, U. S. Dist. Court for the Eastern Dist. o f Kentucky). 31 At the first hearing in this case, although the trial court concluded that petitioner had been denied rights guaranteed by the Constitution, nevertheless, because of the separate but equal doctrine, it refused to issue the order for the necessary relief and allowed the state six months in which to set up the facility separate from that in existence at the University of Texas. At the end of the six months’ period the trial court again reverted to the separate hut equal doc trine and found that petitioner had been given substantially equivalent educational opportunities to that afforded to whites at the University of Texas on the mere promise of the state to establish a law school for Negroes in Houston. At the third hearing, this same court in the face of peti tioner’s testimony which conclusively established that the facilities in the basement law school at Austin, faculty, library and in all respects were in no way equal or substan tially equivalent to the law school at the University of Texas found that this makeshift school established over night in a basement of a building afforded to petitioner “ equal if not better opportunities for the study of law,” than he could obtain at the University of Texas. The Court of Civil Appeals in the face of this clear evidence showing that the Negro school was inferior to the white school agreed with the petitioner that there could be no substantial equality, the two words being incom patible in themselves, but said the Court: “ This is of course true in pure, as distinguished from applied, mathematics. ‘ Equality’ like all ab stract nouns must be defined and construed accord ing to the context or setting in which it is employed. Pure mathematics deals with abstract relations, predicated upon units of value which it defines or assumes as equal. Its equations are therefore exact. But in this sense there are no equations in nature; 32 at least not demonstrably so. Equations in nature are manifestly only approximations (working hy potheses) ; their accuracy depending upon a proper evaluation of their units or standards of value as applied to the subject matter involved and the ob jectives in view. It is in this sense that the decisions upholding the power of segregation in public schools as not violative of the fourteenth amendment, em ploy the expressions ‘ equal ’ and ‘ substantially equal ’ and as synonymous” (R. 449). The most authoritative studies made on public education in the United States clearly indicate that the Negro insti tutions are vastly inferior to the whites. Yet when faced with the necessity of holding Negro institutions to be in ferior to the white and therefore to order the admission of the Negro to the white institution, courts have fallen back on the formula “ substantially equivalent” to justify their decision to refuse the admission of the Negro into the white institution. If it were not for the constitutional and statutory pro visions requiring segregation in public education in Texas, there could be little doubt that the lower courts would have ordered the admission of the petitioner. If it were not for the existence of the “ separate but equal” doctrine, the lower courts would have had no difficulty in declaring that said constitutional and statutory provisions were unreason able classifications and therefore unlawful. But for the “ separate but equal doctrine” , the Texas courts would not have been able to justify the Negro law school as “ substan tially equivalent” and would have declared the constitu tional and statutory provisions to be unreasonable classi fications in violation of the Fourteenth Amendment. Therefore, the only way for the petitioner in this case and other qualified Negroes to obtain a legal education equal 33 to that obtained by all other qualified applicants is by ad mission to the recognized state institutions. The only way this can be accomplished is for this Court to reconsider the doctrine of Plessy v. Ferguson and overrule it. CONCLUSION W herefore, it is respectfully submitted that this petition for writ o f certiorari to review the judgment o f the court below, should be granted. W. J. D urham, W illiam H. H astie, W illiam R. Ming, J r., James M. R a b b it , Jb., T hubgood Marshall, Attorneys for Petitioner, R obert L. Carter, E. B. B unkley, Je., Harry Bellinger, U. 8. Tate, Of Counsel. L awyers P ress, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300 NUMBER 9684 IN THE Court o f Civil Appeals For the Third Supreme Judicial District of Texas, at Austin, Texas HEMAN MARION SWEATT, versus Appellant, THEOPHILUS SHICKEL PAINTER, ET.AL., Appellees. APPEALED FROM THE DISTRICT COURT OF TRAVIS COUNTY BRIEF FOR APPELLANT W. J. Durham of Dallas T hurgood Marshall of New York Attorneys for Appellant. ■ I N D E X PAGE Statement of the Nature of the Case _____________ 1 Points Upon Which the Appeal is Predicated______ 2 Preliminary Statement ____ :_____________________ 3 First Point—The Court erred in sustaining appel lees’ special exception to allegation 3 of appel lant’s second supplemental petition. (Re-stated) 5 Statement Under First Point__________________ 5 Authorities Listed _________________________ 7 Argument and Authorities Discussed___________ 7 Second Point—The Trial Court erred in excluding the testimony of the witness, Dr. Charles H. Thompson, with reference to the quantity and quality of education offered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last question on p. 387 to p. 469, inclu sive). (Re-stated) ___________________________ 10 Statement Under Second Point _______________ 10 Authorities Listed ________ 10 Argument and Authorities Discussed___________ 11 11 PAGE Third Point—The Court erred in excluding the evi dence of the appellant as to the admission of Donald Murray to the-law school of the University of Maryland and the results thereof in a situa tion analogous to the instant case, as shown in appellant’s bill of exception, as fully set out (S. F. pp. 478-482). (Re-stated) __________________ 14 Statement Under Third Point____-___ _________ 14 Argument ____________________ 1_____________ 16 Fourth Point—The Court erred in holding that the proposal of the State to establish a racially seg regated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. (Re-stated) ______________ 16 Statement Under Fourth Point _______________ 16 Argument and Authorities Listed _____________ 20 I Courts have invalidated racial classifications imposed by states in a great variety of situa tions as denials of equal protection of the law 20 II The doctrine of racially “ separate but equal” public facilities is merely a constitutional hypothesis which has no application where racial segregation is shown to be inconsistent with equality ____________________________ 24 Ill III The demonstration in this record that raci ally separate schools in fact and inevitably deny the equality required by the Fourteenth Amendment, precludes the application of any “ separate but equal” doctrine in the field of public education and in the circumstances of PAGE this case ________________________________ 36 A. The law school set up by appellees does not meet the requirements of the Four teenth Amendment____________________ 36 B. The law school set up by appellees cannot meet the requirements of the Fourteenth Amendment _________ ______________ _ 40 C. The function of a state-supported law school______________ 43 D. The expert testimony introduced at the trial establishes that there is no rational justification for segregation in profes sional education and that substantial dis crimination is a necessary consequence of any separation of professional students on the basis of color___________________ 49 Conclusion ____________________________ __________ 63 IV Table of Cases PAGE Aiken v. Woodward (Tex. Civ. App.), 241 S. W. 1117 3 Alston v. School Board, 112 F. (2d) 992____________ 21 Brown v. Mississippi, 297 U. S. 278 ____ ________ 21 Buchanan v. Warley, 245 U. S. 60______________ __ 21 Carter v. Texas, 177 U. S. 442 ________________ ..._ 21 Chambers v. Florida, 309 U. S. 227 _______________ 21 Cummings v. Richmond County Board of Educa tion, 175 IT. S. 528 _’________ ■________,________ 33 Elmore v. Rice, et al., Unreported (U. S. D. C. E. D. So. C.) 7/12/47 ____________ 1_________________1 24 Gong Lum v. Rice, 275 U. S. 78____________ ________ 34 Harmon v. Tyler, 273 U. S. 668____ ...______________ 21 Hill v. Texas, 316 U. S. 400_______________________ 21 Hirabayashi v. U. S., 320 U. S. 8 1 _______________31, 32 Lane v. Wilson, 307 U. S. 268 ____________________ 23 , Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ...._3, 34 Morgan v. Virginia, 328 U. S. 373 ________ ________ 25 Newman, Ex parte, 14 Wall 132, 20 L. Ed. 877______ 3 Norris v. Alabama, 294 U. S. 587 __________________ 21 Panhandle Grain & Elevator Co. v. Dowling, 247 S. W. 873 _______________________ _____________ 11 Pearson v. Murray, 169 Md. 478, 182 A. 540 ________ 3 Pierce v. Allen, et al., 278 S. W. 453 _______ ..._____ 7, 9 Pierre v. Louisiana, 306 U. S. 354 _________________ 21 Plessy v. Ferguson, 163 U. S. 537 _____________ 29, 30, 33 Railway Mail Association v. Corsi, 326 U. S. 88____ 22 Richmond v. Deans, 281 U. S. 704 ________________ 21 Ridgeway v. City of Ft. Worth, 243 S. W. 704 _____ 3 Roberts v. Boston, 5 Cush. 198___________________ 30 V San Antonio Traction Co. v. Higdon, 123 S. W. PAGE 732 _______________________________________ 10,12 Smith v. Fort, 58 S. W. (2d) 1080 _________________ 7 Smith v. Texas, 311 U. S. 128_____________________ 21 Standifer v. Bond Hardware Co., 94 S. W. 144_...__ 7 Steele v. L. N. R. R. Co., 323 U. S. 192____________ 33 Strauder v. W. Va., 100 U. S. 303, 306, 307, 308 ___ 26, 28 Ward v. Flood, 48 Cal. 36________________________ 3 Ward v. Texas, 316 U. S. 547 _____________________ 21 Ware v. Schaeffer, et al., 29 S. W. 756 ____________ 11 Wertzman, et ux. v. Lee, 262 S. W. 859 ____________ 7 White v. Texas, 309 H. S. 631____________________ 21 Authorities Cited American Jurisprudence 35, Sec. 377, p. 115_______ 3 American Teachers Association Study on The Black and White of Rejections for Military Service (1944) _____________________________ 52 Ballantine, H. W., The Place In Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918)____________ -39, 42 Boyer, Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Oregon Law Rev. 281 (1941)__________________________ 38,42,44 Brown, Esther Lucile, Lawyers and the Promotion of Justice (1938)___________________________ ___42, 46 Cantril, H., The Psychology of Social Movements (1941) ______ ,________________________________ 51 Chairman’s Address, ABA Section on Legal Edu cation, 1 Am. Law School Rev. 337 (1905)______ 48 Clark, Contrast: The Full Time Approved Law School Compared With The Hnapproved Evening School, 20 ABA Journal 548 (1934)__ _.______ _ 42 Clark, W. W., Los Angeles Negro Children, Educa tional Research Bulletin (1923).. 52 V I PAGE Dunbar, Charles E., Address before the AALS on the ABA Program in the Field of Legal Education and Admission to the Bar and the Part-Time School Problem, Handbook, A. A. L. S. (1939).... 48 Horack, Law Schools of Today and Tomorrow, 6 Am. Law School Rev. 658 (1927)______ ______ 38,42 Johnson, Charles S., Patterns Negro Segregation (1943) ------------------------------------- ---------------------- 50 Klineberg, Otto, Negro Intelligence and Selective Migration (1935) ____ 52 Mangum, Charles S., Jr., The Legal Status of the Negro (1940) _________________________________ 50 Maxwell, Lawrence, Jr., Chairman’s Address, Sec tion of Legal Education of the ABA, 1 Am. Law School Rev. 337 (1905)________________________ 42 McCormick, C. T., The Place and Future of the State University Law School, 24 N. C. Law Rev. 441... 44 McGlovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreements, Covenants or Conditions in Deeds is Unconsti tutional, 33 Cal. Law Rev. 5 (1945)_______________53 McWilliams, Carey, Race Discrimination and the Law— S c ie n c e a n d S o c ie t y , Vol. IX No. 1 (1945) 50 Myrdal, Gunnar, An American Dilemma (1944)..27, 50, 51 Peterson & Lanier, Studies in the Comparative Abili ties of Whites and Negroes—M e n t a l M e a s u r e m e n t — M o n o g r a p h s , 5:1-156, 1929_______........____ 52 President’s Address—17th Annual Meeting AALS, 4 Am. Law School Rev. 337 (1.919)_____________ 48 Reed, A. Z., Present Day Law Schools (1928)______ 42 Reed, A. Z., Social Desirability of Evening or Part Time Law Schools, 7 Am. Law School Rev. 198 (1931) ______________________________________42,46 Report of the 36th Annual Meeting AALS, 9 Am. Law School Rev. 233 (1938), Consolidation of Legal Education in Dallas_____r_______________ 38,47 vn Snyder, The Function of the Night Law School, 7 Am. Law School Review 827 (1933)_________ ___ 42 Stone, Harlan F., Address, 17th Annual Meeting AALS, 4 Am. Law School Rev. 483 (1919)______ 42 Storey, Progress in Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938)__________________ 38,48 Texas Constitution, Sec. 7, Art. 7_________________ 4 Thompson, Charles H., Some Critical Aspects of the Problem of the Higher and Professional Educa tion for Negroes—J ournal op Negro E ducation (Fall 1945) __________________________________ 60 Townes, John C., Organization and Operation of a Law School, 2 Am. Law School Beview 436_____ 39 University of Texas Publication—No. 4529, August 1, 1945, School of Law________________________ 37 Vance, The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914)______42, 44 Weltfish, dene, Causes of Croup Antagonism— J our nal op Social Issues, Vol. 1 PAGE 51 NUMBER 9684 IK THE Court of Civil Appeals For the Third Supreme Judicial District of Texas, at Austin, Texas Heman Marion Sweatt, Appellant, versus T heophilus Shickel P ainter, et al., Appellees. APPEALED FROM THE DISTRICT COURT OP TRAVIS COUNTY BRIEF FOR APPELLANT Statement of the Nature of the Case This is an action in mandamus. Heman Marion Sweatt, appellant, on May 16, 1946, filed an application for a writ of mandamus in the 126th District Court of Travis County, Texas, against the members of the Board of Regents of the University of Texas, the acting Presi dent, the Dean of the School of Law and the Registrar of said University. The application for mandamus al leged that appellant was fully qualified for admission to the School of Law of the University of Texas, had duly applied for admission and had been refused admission solely because of his race or color in violation of the 2 Constitution and laws of the United States and of the State of Texas. On June 26, 1946 the Court entered an order that the action of appellees in denying admission to the appellant was a denial of appellant’s constitutional right to the equal protection of the laws, but issuance of the writ was stayed for six months to permit the State of Texas to establish a separate law school for Negroes substantially equivalent to the one at the University of Texas. On December 17, 1946, the Court below denied the writ of mandamus. To the judgment, appellant ex cepted and gave notice of appeal. The Court, on March 26,1947, set aside the judgment of the Trial Court and re manded the cause generally. The case was then tried in the Court sitting without a jury, and a final judgment was rendered against appellant denying the application for writ of mandamus and taxing the cost against appel lant. From this judgment appellant now appeals. POINTS UPON W HICH THE APPEAL IS PREDICATED First Point: The error of the Court in sustaining appellees’ special exception to allegation 3 of appel lant’s second supplemental petition. Second Point: The error of the Court in exclud ing the testimony of the witness, Dr. Charles H. Thompson, with reference to the quantity and quality of education offered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last ques tion on p. 387 to p. 469, inclusive). (Re-stated) 3 Third Point: The error of the Court in exclud ing the evidence of the appellant as to the admission of Donald Murray to the law school of the University of Maryland and the results thereof in a situation analogous to the instant case, as shown in appellant’s bill of exception, as fully set out (S. F. pp. 478-482). Fourth Point: The error of the Court in holding that the proposal of the State to establish a racially segregated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. Preliminary Statement The appellant possesses all of the academic qualifi cations for admission to the law school (S. F. 265). This established a prima facie case for the issuance of the writ of mandamus.1 The burden of proof thereupon shifted to appellees to vindicate their conduct.2 This well recognized rule of procedure is required by Texas courts.3 1 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938 ); Pearson v. Murray, 169 Md. 478, 182 A. 540 (1936) ; V/ard v. Flood, 48 Cal. 36 (1874). 2 35 Am. Jur. Sec. 377, at 115, “ . . Where, however, [in man damus proceedings] the right and duty appears, the burden of proving matter set up by way of excuse for failure to act, or of justifying such failure to act, rests upon the respondent or defen dant.” To the same effect see 38 C. J. Sec. 671 at 915; E x parte Newman, 14 Wall 152, 20 L. Ed. 877 (1871) ; see also Missouri ex rel. Gaines v. Canada, supra; Pearson v. Murray, supra. 3 Ridgeway v. City oj Ft. Worth, 243 S. W . 704 (1922) ; Aike v. Woodward (Tex. Civ. A pp.), 241 S. W . 1117 (1922). 4 The appellant was refused admission to the law school solely because he was a Negro (S. F. 70, 144, 265). Had appellant been a member of any other racial group there is no question that he would have been admitted to the law school. The appellees in refusing admission of appellant to the law school claimed to be acting pursuant to the Con stitution and laws of the State of Texas, specifically Section 7, Article 7 of the Constitution of Texas'(S. F. 70).4 5 The entire defense of appellees is based upon this constitutional provision. Although the constitutionality of the separate school laws of Texas was directly in issue as a result of the pleadings in the case and the evidence presented at the trial, appellees made no effort whatso ever to support the validity of these statutes and obvi ously have relied solely on a presumption of constitu tionality. The Trial Court, however, denied the petition for a writ of mandamus on the grounds that a separate law school for Negroes offering “ substantially equal” B facili ties had been established and that “ the constitutional right of the State to provide equal educational oppor tunities in separate schools” was “ well established and long recognized by the highest State and Federal Courts.” 4 Section 7 of Article 7 of the Constitution of Texas provides: “ Separate schools shall be provided for the white and colored chil dren and impartial provision shall be made for both.” 5 The decision of the Trial Court first appealed from was based upon a theory of “ substantial” equality. Despite the reversal of that decision the Trial Court continued in the belief that “ substan tial" equality meets the requirements of the Fourteenth Amendment and thereby ignores both the true meaning of equality and the purpose of the Fourteenth Amendment. 5 The record in the instant case for the first time pre sents testimony and documentary evidence clearly estab lishing that: (1) There is no rational basis for racial classifi cation for school purposes. (2) Public schools, “ separate but equal” in theory are in fact and in practical administration consistently unequal and discriminatory. (3) It is impossible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to sepa rate schools. FIRST POINT The Court erred in sustaining appellees’ special exception to allegation 3 of appellant’s second sup plemental petition. (Re-stated) Statement Under First Point The trial of this case was concluded on the 16th lay of May, 1947; and judgment was entered on the 17th day of June, 1947 (see Tr. p. 64). The appellant’s attorneys were not present at the time the judgment was entered and exception sustained by the Court. The Court allowed appellant’s exception to the Court’s ruling sustaining said exception (see Judg ment of the Court, Tr. p. 64). 6 Appellees filed their first amended answer upon which the case went to trial. Allegation 2, Section 2 of said amended answer reads as follows: “ Said Prairie View University was originally established in the year 1876 as an industrial and mechanical college for colored youths of Texas, and since that date, has been enlarged in scope to include other subjects as need therefor arose” (see Tr. p. 24). In reply to such allegation, appellant filed his second supplemental petition and alleged as follows: “ And further specially pleading "herein, Rela tor respectfully shows he was compelled to go out of the State of Texas, to-wit, in 1937 to the Uni versity of Michigan for the purpose of doing grad uate study in medical bacteriology and immunol ogy and preventive medicine, which were offered to white students at the University of Texas, but which was not offered at Prairie View University, the only school of higher learning for Negroes in Texas and supported by public funds.” “ And Relator further alleges that Prairie View University did not, in 1937, offer equal education facilities to him which were available to whites at that time, at the University of Texas and other state-supported schools in Texas, nor does it now offer equal education facilities to him which are now available to whites at The University of Texas and other state-supported schools for whites in Texas” (see Tr. p. 20). 7 Authorities Listed Rule 80 of the Rules of Civil Procedure promulgated by the Supreme Court of Texas. Pierce v. Allen, et al., 278 S. W. 453 (Syllabus 3); Standifer v. Bond Hardware Co., 94 S. W. 144 (Syllabus 1); Smith v. Fort, 58 S. W. (2d) 1080 (Syllabus 5). Argument and Authorities Discussed It is elementary in this state that a litigant may not attack his own, pleadings. Appellees raised the issue by their pleading as to the quantity and quality of educa tion offered at Prairie View College, alleging in sub stance that the State of Texas had furnished the appel lant the training in Prairie View College since 1876 which he was seeking in The University of Texas; that State of Texas, through Prairie View College, had offered the appellant the same quality and quantity of education that the State of Texas was offering to white citizens at other white institutions of learning, particularly The University of Texas and other state colleges, supported by public funds. This issue, having been raised by the appellees in their pleadings, could not be attacked by the appellees themselves. This appears to be holding in Wertsman, et ux. v. Lee, 262 S. W. 859 (Syllabus 6, Writ of Error refused by Supreme Court of Texas). The appellees raised the issue of the quantity and quality of education at Prairie View College, and took the position that the appellant had no right to reply to such defense. The quality and quantity of education offered appellant and citizens of the white race was one of the ultimate 8 issues in this law suit, and the burden to establish the fact that the State of Texas did not furnish appellant the quantity and quality of education offered white citi zens was on appellant, before he was entitled to the re lief sought. To say that the rule in Texas with reference to plead ing is to allow the defendant to plead special defensive matter which goes to the heart of the plaintiff’s cause of . action; and that the plaintiff may not reply is equivalent to saying that the plaintiff may not have his day in Court on defensive matters pleaded by defendant. This is not the rule under the decisions in Texas. Appellant replied to appellees’ allegation as to the quantity and quality of education given at Prairie View College by supplemental petition. Rule 80 of the Rules promulgated by the Su preme Court of Texas for the trial of civil cases provides that a supplemental petition filed by the plaintiff may contain special exceptions, general denial, and the alle gation of new matters not before alleged by him in reply to those which have been alleged by the defendant. The allegation stricken from the record by the Court’s order was in reply to matters pleaded by the appellees. Judge R o b e r t W. S t a y t o x , in an address before the Dallas Bar Association October 4,1941, interpreting Rule 80, stated: “ The Texas supplemental pleading is as be fore. The plaintiff may employ special exceptions, is deemed to have denied the affirmative allega tions of the defendant, must specially plead all af firmative matters, and must use the equivalent of an answer in response to affirmative claim on de fendant’s part. Here again, the difference between the federal practice and the Texas practice lies in 9 the desire of the Texas rules to maintain a frame work for the case. ’ ’ In this ease, appellees followed the rules promulgated by the Supreme Court in answering the matters of de fense alleged by the appellees and the interpretation placed on Eule 80 by the Rules Committee; but the learned Trial Court struck out the answer contained in appellant’s supplemental petition and left the appellees’ allegation and special defense unanswered; and his judg ment says that the appellant has no right to answer such defensive matters. The higher courts in this state have decided the purpose and function of a supplemental peti tion; and the decisions of the higher courts, we believe, support the contention of appellant in this case. In Pierce v. Allen, et al., supra, Chief Justice Jackson, speaking for the Amarillo Court of Civil Appeals, dis posed of this issue in the following language: “ The office of a supplemental petition is to reply to the answer of the defendant. It may set up new matters via confession and avoidance of the new matters pleaded in the answer or may contain additional facts responsive to such new matter which would entitle the plaintiff to affirmative re lief. ’ ’ It is obvious that the issue raised by the pleadings here under discussion raised a material issue, for if the State of Texas had afforded the same quantity and qual ity of education to the appellant as it furnished to the white citizens of Texas, there would be no controversy. The issue here raised was the determining factor in this law suit, and we submit that the learned Trial Court erred in sustaining such exception. 10 SECOND POINT Tihe Trial Court erred in excluding the testimony of the witness, Dr. Charles H. Thompson, with ref erence to the quantity and quality of education of fered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last question on p. 387 to p. 489, inclusive). (Re-stated) Statement Under Second Point We adopt statement under First Point as the state ment under this Point. The case was concluded as before stated on the 16th day of May, 1947; and the judgment was actually ren dered on June 17, 1947, at which time, the appellant’s attorneys were not present, but the Trial Court allowed appellant’s exception to the ruling of the Court, excluding such evidence as shown (Tr. p. 64). And as a part of the statement under this Point, we refer to the testimony of the witness, Dr. Charles H. Thompson (S. F. pp. 380- 469, inclusive). (To copy the entire testimony of Dr. Thompson in this brief would do violence to the rules governing the preparation of briefs.) Authorities Listed Rule 373 of the Rules of Civil Procedure promulgated by the Supreme Court of Texas for trial of civil cases. San Antonio Traction Company v. Higdon, 123 S. W. 732 (syllabi 1, 2, 3, and 4); 11 Ware v. Schaeffer, et al., 29 S. W. 756 (syllabus 1, Supreme Court of Texas); Panhandle Grain <& Elevator Co. v. Dowling, 247 S. W. 873 (syllabus 20). Argument and Authorities Discussed The issue as to the quantity and quality of education was raised by the first amended answer of the appellees and the second supplemental petition of the appellant. A reading of the appellant’s second supplemental peti tion and the appellees first amended answer will leave no doubt in our opinion with reference to the issue being raised as to the quantity and quality of education at the other educational institutions maintained by the State of Texas, and the quality and quantity of education offered at Prairie View College. The ultimate issue in this law suit is the quantity and quality of education offered appellant by the State of Texas and the quantity and quality of education offered other citizens not of the same race as appellant at the universities and colleges main tained and supported by the State of Texas, from which appellant is excluded. The appellees contended that the appellant’s constitutional rights had not been violated for he was offered the same quantity and quality of edu cation at Prairie View College as was offered to the white citizens of Texas at the universities and other colleges of Texas. These issues were squarely joined, appellees alleging that the State of Texas had met its obligation by furnishing the same quantity and quality of education to appellant at Prairie View College as the State of Texas furnished its white citizens at the universities and other 1 2 colleges supported by the State of Texas, from which appellant was excluded. The appellant denied such alle gation and alleged that the State of Texas had never offered the same quantity and quality of education at Prairie View College as is offered at The University of Texas and other colleges supported by the State of Texas. Thus, a material issue was joined by the pleadings of the parties. The testimony excluded was in support of appel lant’s theory that the same quantity and quality of educa tion was not offered and had never been offered at Prairie View College, as the quality and quantity of education offered at the universities and other colleges of Texas other than Prairie View. The learned Trial Court, by its judgment, says that the appellant had no legal right to dispute such allegation or to offer any testimony tending to disprove such ma terial defense. We, therefore, submit that the Trial Court erred. This question is not an open question in the courts of Texas. The question has been decided many times by the courts of Texas and contrary to the holding of the learned Trial Court. In the case of San Antonio Trac tion Co. v. Higdon, Justice Neal, speaking for the Court upon a similar question as the question here presented, .jsed the following language: “ The meaning of the word ‘ relevant’ as applied to testimony is that it directly touches upon the issues which the parties have made by their plead ing so as to assist in getting at the truth of it. It is not necessary, however, that it should itself bear directly upon the points in issue, for, if it be but a link in the chain of evidence tending to prove 13 u the issue by reasonable inference, it may neverthe less be relevant. From these elementary principles, it logically fol lows that to determine the relevancy of evidence, the pleadings of the parties must first be looked to for the purpose of ascertaining the issue.” The Court further said: ‘ 4 But the Court’s determining in this manner what the issues of fact will under the evidence be, sub mitted to the jury cannot serve as a test fur deter mining the relevancy of evidence introduced or offered upon the trial. Such tests can only be the pleadings of the parties for it is from them the issues of fact and of law primarily arise.” When the rule of law set out above as to the test of the issues raised is considered and the record in this case is examined, it is in our opinion too clear for argument that the testimony of the witness, Dr. Charles H. Thomp son, was relevant as well as material to the issues of fact alleged in appellees’ first amended answer and appel lant’s second supplemental petition. If the judicial mind is focused upon the pleadings in this case, it will be Per ceived that the issue of the quantity and quality of ed ''ca tion offered at the universities and other colleges "sup ported by the State of Texas, other than Prairie View, was clearly raised, and that such issue was a material issue in the final determination of this law suit! We, therefore, submit that the learned Trial Court erred in sustaining appellant’s exception to the testimony of the witness, Dr. Charles H. Thompson, and excluding the same. 14 THIRD POINT The Court erred in excluding the evidence of the appellant as to the admission of Donald Murray to the law school of the University of Maryland and the results thereof in a situation analogous to the instant case, as shown in appellant’s hill of excep tion, as fully set out (S. F. pp. 478-482). (Re-stated) Statement Under Third Point The testimony at the trial of this cause was not put on in the regular order by agreement of counsel (S. F. 8). The testimony of Donald Murray was tendered in the middle of the trial and was excluded (S. F. 477-478). (To' copy this entire testimony in this brief would do violence to the rules, governing preparation of briefs.) This testimony appearing in appellant’s bill of exception shows that Donald Murray in a situation closely similar to the case at bar was denied admission to the law school of the University of Maryland and was admitted only after legal action. Despite beliefs that he would be ostracized and denied full participation, he was not ostracized or segregated, took part in all of the classes, participated in all activities and did not receive any un favorable treatment on the part of any student or pro fessor (8. F. 481). With the exception of separation of the races on buses and trolley cars in Austin there is no item of segregation in Austin that is not present in Balti more, Maryland (S. F. 481). Latir in the trial during the testimony for appellees the folnwing took place: “ Q. I will ask you whether or not you think the Negro student would have the same oppor- 15 tunity to develop leadership in a mixed institution, or at a separate institution! A. I think that nor mally, ordinarily, he would have a better oppor tunity to develop leadership in a separated insti tution than in a mixed institution, and I make that statement because the whole life of the insti tution would then be open to the Negro’s partici pation. My judgment is that particularly in the south, that the Negroes’ opportunities in institu tions patronized in the great majority by whites would be limited to the class room facilities, and the regular educational activities almost wholly. Mr. Durham: Just a minute. Now, Your Honor, they have objected to that form of testimony. I don’t want to object to it, if I have got a right to reopen my testimony. I won’t object, if I have got a right to tender certain testimony that the Court excluded yes terday. The Court: Of course, if it is the same, if this is admissible in rebuttal, testimony on your side would be admissible. Mr. Durham: No objection” (S. F. 534, 535). TTThe sene witness was permitted to testify as tb his experiences with a Negro student at the University of Colorado in 1935 or 1936 and his opinion as to his lack of participation in college activities (S. F. 544-545). At the close of this testimony counsel for appellant again tendered the testimony of Donald Murray, and it was again excluded (S. F. 559). 16 Argument The issues involved in this case are clear. There is no question as to the qualifications of appellant for a legal education. Appellees seeks to justify their refusal to admit him upon the provision of the Texas Consti tution requiring separation of Negro and other pupils. In an effort to defend the validity of these provisions appellees contend that separation of the Negro from other citizens is for the best interest and introduced testimony tending to show that Negroes are not accepted in school life where admitted to mixed schools. The same witness testified as to the dire results to be expected if Negroes are admitted in the law school of the University of Texas. It is, therefore, clear that the testimony of Donald Murray was not only germane to the issues in this case but was also clearly admissible in rebuttal to 'the testimony of appellees. FOURTH POINT The Court erred in holding that the proposal of the State to establish a racially segregated law school afforded the equality required by the equal protec tion clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. (Re-stated) Statement Under Fourth Point The issues in this case are clear. There has never been any question of the qualifications of appellant for legal training. He applied for admission to the only law 17 school maintained by the State of Texas and was refused admission solely because of his race and color. Appel lees defend their action by relying upon Section 7 of Ar ticle 7 of the Constitution of Texas requiring separate schools for “ white and colored children.” In the pleadings and evidence in the case, appellees relying on the Constitution of Texas claim that separate schools must be maintained and that they are complying with the other provision of the section requiring that “ impartial provision shall be made for both,” by the establishment and maintenance of Prairie View Univer sity for Negroes and a new school to be established, and that this complies with the requirements of the Four teenth Amendment by establishing “ substantial” equal ity. Appellant’s position is that insofar as this provi sion of the Constitution of Texas deprives him of the right to attend the law school of the University of Texas, it is unconstitutional and in violation of the Fourteenth Amendment. Although Negroes have always been excluded from the University of Texas because of their race or color (S. F. 95), the State of Texas has never offered them “ separate but equal” facilities (S. F. 94-96). As Pean Pettinger, a witness for appellees who has studied edu cational facilities for Negro and white students in Texas stated: “ I am unable to think for the moment of col ored institutions and white institutions which do have equal facilities with which I have been associated” (S. F. 547). When appellant applied for a leg'al education the only law school in existence maintained by the State of Texas was the one at the University of Texas. He was 18 refused admission solely because of his race or color. At the time of the refusal and at the time this case was filed there was no other law school available. Equally qualified white students who applied at the same time have received more than a year of legal education fur nished by the State of Texas in an institution with more than sixty years of tradition and in a well equipped, well recognized and fully accredited law school. The University of Texas has been in existence since the last century. The law school has been in existence for more than fifty years. The present law school was built in 1906 or 1907 (S. F. 81). The law school is rec ognized and accredited by every association in the field (S. F. 31). It is approved by the American Bar Asso ciation (S. F. 11), and is a member of the Association, of American Law Schools (S. F. 159). No law school can be accredited by either association in less than two years of continual compliance with its requirements (S. F. 21, 45, 159). After this suit was filed, the State of Texas acting through its agents sought to establish some form of law school for Negroes in Houston in February, 1947 (see testimony of E. L, Angell, S. F. 46-59, 483-488). Be tween February and March 10, 1947, according to the ' testimony of appellees, efforts were made to establish a law school for Negroes in Austin. The -so-called Austin school supposed to be ready for use on March 10th was to be in the basement of a building (S. F. 147) leased on February 28 until August 31, 1947 with an alleged op tion to lease until August 31, 1948 (S. F. 70, 81). No one knows for certain what will happen after that time although one of appellees’ witnesses assumed it would go to Houston (S. F. 88, 91). Dean Charles T . McCor 19 mick of the University of Texas and former president of the Association of American Law Schools, called by the appellees testified: “ Q. As a former President of the American Association of Law Schools, and as the Dean of several law schools, and as an outstanding author ity in several fields of law, Dean McCormick, do you—are you of the opinion that one of the basic elements in a great law school is the history and traditions which have been built up over years of time, including the graduates who have become famous in the State of Texas? Is that your opin ion—that is an element in a great law school? A. Yes, that is a source of pride to a law school that has that background. “ Q. One other question on that along that same line. Is it, in your opinion, a good thing for a law school to be unstable as to its location, and to its faculty, sort of a roving school of law? Is that, in your opinion, an unsatisfactory condition in which to operate a law school? A. I would think that a roving law school would certainly not be an ideal school” (S. F. 163-164). It is admitted by the Chairman of the Board of Re gents of the University of Texas that no fair comparison can be made of the monetary value of the law school building at the University of Texas and those .of the pro posed law school for Negroes (S. F. 74). When the Negro law school was to be ready for use on March 10th there was no library other than a few text-books (S. F. 150) and no librarian (S. F. 124) despite the fact that there was a well equipped library at the University of Texas with a full time librarian and assistants to aid the students (S. F. 230-231). Although students at the Negro school were to be permitted to use 2 0 the library in the capital it was admitted that this would not meet the requirements of the accrediting associa tions (S. F. 240). The books claimed to be on order were only requisitioned on the 25th of February (S. F. 69) and were not available on March 10 or the date of trial (S. F. 76). The proposed faculty for the law school consisted of professors from the University of Texas who would give part time to the Negro school. No plans whatsoever were made for moot-court, scholarship aid or law review similar to the University of Texas. On the basis of what was available on March 10th, the proposed date for open ing the Negro school and the time of trial of this case the highest claim made by the appellees was that it fur nished facilities “ substantially” equal (S. F. 16). Much reliance was placed on facilities such as building, library, faculty and other items to be furnished in the future. On the other hand, appellant produced testimony and documentary evidence showing the inequality of the existing and proposed facilities and the discrimination inherent in a segregated system. The testimony of these experts which cannot be accurately digested stands un contradicted in this record. ARGUMENT AND AUTHORITIES LISTED I Courts have invalidated racial classifications imposed by states in a great variety of situa tions as denials of equal protection of the law. The Supreme Court has repeatedly struck down state statutes and practices imposing racism in diverse areas 21 of human activity. In judicial procedure for example, the Supreme Court has at every opportunity made it plain that racial distinctons are not to be tolerated. Whether in the exclusion of Negroes from the grand jury which has indicted a Negro,1 or in similar petit jury ex clusion,2 or in the intimidation or coercion of a Negro ac cused of crime,3 the Court has undertaken to see that judicial proceedings from preliminary investigation to judgment are free of racism. A state is not permitted to impose residential segre gation by debarring Negroes from owning or occupying property in particular areas.4 Distinction may not be made between white and colored public school teachers in the fixing and payment of salaries.5 On the affirma tive side, the Supreme Court has found no difficulty in up holding a statute requiring labor unions to admit quali fied Negroes to membership, and, in so doing has pointed out that its ruling is in line with the fundamental policy of the Fourteenth Amendment: “ A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amend ment which was adopted to prevent state legisla tion designed to perpetuate discrimination on the 1 Carter v. Texas, 177 U. S. 442; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400. 2 Norris v. Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 U. S. 354. 3 Brown v. Mississippi, 297 U. S. 278; Chambers v. Florida, 309 U. S. 227; White v. Texas, 309 U. S. 631; Ward v. Texas, 316 U. S. 547. 4 Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. S. 668; Richmond v. Deans, 281 U. S. 704. 5 Alston v. School Board, 112 F. (2d) 992 (certiorari denied, 311 U. S. 693). 2 2 basis of race or color. We see no constitutional basis for the contention that a state cannot pro tect workers from exclusion solely on the basis of race, color or creed by an organization, functioning under the protection of the state, which holds it self out to represent the general business needs of employees. “ To deny a fellow-employee membership be cause of race, color or creed may operate to pre vent that employee from having any part in the determination of labor policies to be promoted and adopted in the industry and deprive him of all means of protection from unfair treatment arising out of the fact that the terms imposed by a domi nant union apply to all employees, whether union members or not. In their very nature, racial and religious minorities are likely to be so small in number in any particular industry as to be unable to form an effective organization for securing set tlement of their grievances and consideration of their group aims with respect to conditions of em ployment. The fact that the employer is the Gov ernment has no significance from this point of view. ’ ’ 6 The history of the attempts of states to establish segregation in primary elections deserves special men tion. Here, for a long time the theory was urged that Negroes could not complain if they were excluded from the “ white” primary but left free to conduct their own primary. As late as 1935 this sterile legalism based upon theory dissociated from the realities of voting'and elec tions prevailed in judicial decision. Even the Supreme 6 Railway Mail Association v. Corsi, 326 U. S. 88, at page 94 (1945). 23 Court seemed unmindful of the broader significance of its declaration in another connection that: “ • • . The Amendment [15th] nullifies sophis ticated as well as simple-minded modes of discrim ination. It hits onerous procedural requirements which effectively handicap exercise of the fran chise by the colored race although the abstract rights to vote may remain unrestricted as to race.” 7 and followed this unrealistic legalism as to primaries and thereby disfranchised 540,565 adult Negro citizens in Texas alone. Recently, however, reexamining the segregated pri mary election device in the light of its actual conse quences, the Supreme Court has outlawed the white pri mary as a discriminatory and unconstitutional device, whether in Federal or state elections. The extent to which realism has prevailed in this field over a legalism dissociated from the actualities of human behavior is well illustrated by the following excerpt from an opinion handed down by the District Court of the United States for the Eastern District of South Carolina only a few months ago in granting an injunction restraining officials of the Democratic Party from excluding Negroes from voting in primary elections in South Carolina. “ And so we are faced with the final decision as to whether or not the present Democratic Party of South Carolina, because it is no longer gov erned by State statutes, is a private organization and (as was said in argument) must be treated as a private business or social club, with which the State and National Governments have no concern; 7 Lane v. Wilsons 307 U. S. 268, 275. 24 or is it after all the determining body in the choice of National and State officers in South Carolina, or to use the' old homely illustration, is it the same horse although of a somewhat different color? * # * # # # # # # “ I am of the opinion that the present Demo cratic Party in South Carolina is acting for and on behalf of the people of South Carolina; and that the Primary held by it is the only practical place where one can express a choice in selecting federal and other officials. Racial distinctions can not exist in the machinery that selects the officers and lawmakers of the United States; and all citi zens of this State and Country are entitled to cast a free and untrammelled ballot in our elections, and if the only material and realistic elections are clothed with the name ‘ primary’, they are equally entitled to vote there. ’ ’ 8 II The doctrine of racially “separate but equal” public facilities is merely a constitutional hy pothesis which has no application where racial segregation is shown to be inconsistent with equality. Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws, and the United States Supreme Court has struck down statutes, ordi nances or official policies seeking to establish such classi fications. In the decisions concerning intrastate trans portation and public education, however, that Court has adopted a different and antithetical constitutional doc- 8 Elmere v. Rice et al., No. 1702 (unreported— July 12, 1947). 25 trine under which racial separation is deemed permissible when equality is afforded. An examination of these de cisions will reveal that the “ separate but equal” doctrine is at best a bare constitutional hypothesis postulated in the absence of facts showing the circumstances and conse quences of racial segregation and based upon a fallacious evaluation of the purpose and meaning inherent in any policy or theory of enforced racial separation. ' Many states have required segregation of Negroes from all other citizens in public schools and on public conveyances. The constitutionality of these provisions has seldom been seriously challenged. No presumption of constitutionality should be predicated on this non action. A similar situation existed for many years in the field of interstate travel where state statutes requir ing segregation in interstate transportation were con sidered to be valid and enforced in several states for generations and until the Supreme Court in 1946 held that such statutes were unconstitutional when applied to interstate passengers.9 Although separate school laws have been enforced by several states, an examination of the cases in the United States Supreme Court and lower courts will demonstrate that these statutes have never been seriously challenged nor their validity examined and tested upon a record adequately presenting the critical and decisive issues such as are presented by the record in this case: (1) Whether there is a rational basis for racial classification for school purposes. (2) Whether public schools, “ separate but equal” in theory are in fact and practical administra tion consistently unequal and discriminatory. 9 Morgan v. Virginia, 328 U. S. 373 (1946). 2 6 (3) Whether it is possible to have the equality required by the Fourteenth Amendment in a public school system, which relegates citizens of a disadvantaged racial minority group to separate schools. The Thirteenth, Fourteenth and Fifteenth Amend ments were adopted for the purpose of securing to a recently emancipated race all the civil rights of other citizens.10 Unfortunately this has not been accomplished. The legislatures and officials of the southern states through legislative policy continued to prevent Negro citizens from obtaining their civil rights by means of actions which only gave lip service to the word ‘ ‘ equal. ’ ’ One of the most authoritative studies made of the prob lem of the Negro in the United States points out that: “ While the federal Civil Rights Bill of 1875 was declared unconstitutional, the Reconstruction Amendments to the Constitution—which provided that the Negroes are to enjoy full citizenship in the United States, that they are entitled to ‘ equal benefit of all laws,’ and that ‘no state shall make or enforce any law which shall abridge the privi leges and immunities of citizens of the United States’—could not be so easily disposed of. The . Southern whites, therefore, in passing their vari ous segregation laws to legalize social discrimina tion, had to manufacture a legal fiction of the same type as we have already met in the preceding dis cussion on politics and justice. The legal term for this trick in the social field, expressed or implied in most of the Jim Crow statutes, is ‘ separate, but equal.’ That is, Negroes were to get equal accom modations, but separate from the whites. It is evident, however, and rarely denied, that there is 10 Strander v. W est Virginia, 100 U. S. 303. 27 practically no single instance of segregation in the' South which has not been utilized for a significant discrimination. The great difference in quality of service for the two groups in the segregated set ups for transportation and education is merely the most obvious example of how segregation is an excuse for discrimination. Again the Southern white man is in the moral dilemma of having to frame his laws in terms of equality and to defend them before the Supreme Court—and before his own better conscience, which is tied to the Ameri can Creed—while knowing all the time that in reality his laws do not give equality to Negroes, and that he does not want them to do so.” 11 In one of the early cases interpreting these amend ments it was pointed out that: “ 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 distinctions that had before existed. Discrimination 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. . . . They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the 14th 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 11 An American Dilemma, by Gunnar Myrdal, published by Harper & Bros. (1944), Vol. 1, pages 580, 581. 2 8 race the protection of the General Government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizen ship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.” 12 Mr. Justice Strong in this opinion also stated: “ The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive im munity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal dis crimination, implying inferiority in civil society, lessen ing the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” 13 The equal protection clause of the Fourteenth Amend ment to the Constitution clearly guarantees to every citizen the right to complete equality as to all facilities of the state wherein the citizen resides. Yet, it has been argued that state statutes requiring the segregation of the races do not violate the Fourteenth Amendment. This doctrine has been based upon state court decisions and certain language in opinions of the United/ States Su preme Court. It is. unfortunate that the first case to reach the Su preme Court on the question of whether or not segre gation of Negroes was a violation of the Fourteenth , Amendment should come to the Supreme Court during 12 Strauder v. W est Virginia, supra, at page 306. 13 Strauder v. W est Virginia, supra, at pages 307-308. 29 the period immediately after the Civil War when the Fourteenth Amendment was regarded as a very narrow limitation on state’s rights. The first expression by the Supreme Court of the doctiine of separate but equal” facilities in connection with the requirements of equal protection of the law ap pears in the case of Plessy v. Ferguson.1* That case in volved the validity of a state statute of Louisiana re quiring segregation on passenger vehicles. The peti tioner there claimed that the statute was unconstitu tional and void. A demurrer by the State of Louisiana was sustained, and ultimately the United States Supreme Couit affirmed the judgment of the Louisiana courts in holding that the statute did not violate the Thirteenth Amendment nor did it violate the Fourteenth Amend ment. Mr. Justice B rown in his opinion for the ma jority of the Court pointed out that : “ A statute which implies merely a legal dis tinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other ryce by color—has no tendency to destroy the h ; d equality of the two races, or reestablish a stateof involuntary servitude . . . ” Mr. Justice B rown, in continuing, stated that the ob ject of the Fourteenth Amendment was to enforce abso lute equality before the law but: “ . . . Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have 14163 U ..S. 537, 543. 30 been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. . . ,” 15 It should be noted that this case was based solely on the pleadings, and that there was no evidence either be fore the lower courts or the United States Supreme Court on either the unreasonableness of the racial dis tinctions or of the inequality resulting from segregation of Negro citizens. The plaintiff’s right to “ equality” in fact was admitted by demurrer. The decision in the Plessy case appears to have been based upon the decision of Roberts v. Boston, 5 Cush. 198 (1849), a case decided before the Civil War and before the Fourteenth Amend ment was adopted. In the Plessy case, the majority opinion cites and relies upon language in the decision in the Roberts case and added: “ It was held that the powers of the Committee extended to the establishment of sepa rate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools.” 16 Mr. Justice H a r la n in his dissenting opinion pointed out that: “ In respect of civil rights, common to all citi zens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights Every true man has pride of race, and under appropriate circum 15 Plessy v. Ferguson, supra, at page 543. 16163 U. S. 537, 545. 31 stances, when the rights of others, his equals be fore the law, are not to be affected, it is his privi lege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed such legislation as that here in question is inconsistent, not only with that equality of rights which per tains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.” and “ There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citi zens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surround ings or of his color when his civil rights as guar anteed by the supreme law of the land are involved. It is therefore to be regretted that this high tri bunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.” More recent decisions of the Supreme Court support Mr. Justice Harlan’s conclusion.17 In re-affirming the invalidity of racial classification by governmental agen cies, Chief Justice Stone speaking for the Court stated: “ Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason legislative classification or 17 Hirabayashi v. United States, 320 U. S. 81, 100 (1943). 32 discrimination based on race alone has often been held to be a denial of equal protection.” 18 In the same case, Mr. Justice M u r p h y filed a concur ring opinion in which he pointed out that racial distinc tions based on color and ancestry “ are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war.” 19 Mr. Justice M u r p h y in a concurring opinion in a case involving discrimination against Negro workers by a railroad brotherhood acting under a federal statute (Railway Labor Act) pointed out: “ Suffice it to say, however, that this constitu tional issue cannot be lightly dismissed. The cloak of racism surrounding the actions of the Brother hood in refusing membership to Negroes and in entering into and enforcing agreements discrim inating against them, all under the guise of Con gressional authority, still remains. No statutory interpretation can erase this ugly example of economic cruelty against colored citizens of the United States. Nothing can destroy the fact that the accident of birth has been used as the basis to abuse individual rights by an organization pur porting to act in conformity with its Congressional mandate. Any attempt to interpret the Act must take that fact into account and must realize that the constitutionality of the statute in this respect depends upon the answer given. ‘ ‘ The Constitution voices its disapproval when ever economic discrimination is applied under authority of law against any race, creed or color. A sound democracy cannot allow such discrimina tion to go unchallenged. Racism is far too virulent 18 Hirabayashi v. United States, supra. 19 Ibid, at page 110. 33 today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation. ’ ’ 20 The doctrine of “ separate but equal” treatment rec ognized in Plessy v. Ferguson was arrived at not by any study or analysis of facts but rather as a result of an ad hominem conclusion of “ equality” by state courts. As a matter of fact, the United States Supreme Court has never passed directly upon the question of the valid ity or invalidity of state statutes requiring the segrega tion of the races in public schools. The first case on this point in the United States Supreme Court is the case of Cummings v. Richmond County Board of Edu cation.21 The Board of Education of Richmond County, Georgia, had discontinued the only Negro high school but continued to maintain a high school for white pupils. Petitioner sought an injunction to restrain the Board from using county funds for the maintenance of the white high school. The Trial Court granted an injunc tion which was reversed by the Georgia Supreme Court and affirmed by the United States Supreme Court. The opinion written by Mr. Justice Hablan expressly ex cludes from the issues involved any question as to the validity of separate schools. The opinion pointed out: “ It was said at the argument that the vice in the common-school system of Georgia was the re quirement that the white and colored children of the state be educated in separate schools. But we need not consider that question in this case. No such issue was made in the pleadings.” 20Steele v. L. N. R. R. Co., 323 U. S. 192 at page 209 (1944). 21175 U. S'. 528 (1890). 34 In the case Gong Lum v. Rice,22 the question was raised that the right of a state to classify Chinese as colored to force them to attend schools set aside for Negroes. In that case the Court assumed that the ques tion of the right to segregate the races in its educational system had been decided in favor of the states by previous Supreme Court decisions. The third school case is Missouri ex rel. Gaines v. Canada 23 This was a petition for a writ of mandamus to compel the officials of the University to admit a Negro to the University’s law school. The state court con strued the state’s separate school laws as requiring sep aration in schools of higher education. Although the state university for Negroes had no law school, the state court construed applicable state laws as requiring the establishment of a Negro law school “ whenever neces sary or practical’ ’ and pending the establishment of such a school to provide out-of-state aid to qualified Negro applicants. This, according to the state court, met the requirements of the Fourteenth Amendment. On certiorari to the United States Supreme Court, it was held that offering an opportunity for legal education outside the state pending possible establishment of a Negro law school in futuro within the State, did not con stitute equal educational opportunities. The narrow issue recognized by the Court was whether the state court’s denial of the writ, deprived the petitioner of the equal protection of the laws. In reversing the state court, Mr. Chief Justice Hughes for the majority said: “ The peti tioner is entitled to be admitted to the law school of the State University in the absence of other and proper 22 275 U. S. 78 (1927). 23 305 U. S. 337 (1938). 35 provision for his legal training within the state.” The issue as framed by the Court made unnecessary to its decision any holding as to what the decision might be if the state had claimed to be offering petitioner oppor tunity for legal education in a Negro law school then in existence in the state. Obviously that issue was not before the Court.24 Segregation in public education helps to preserve and enforce a caste system which is based upon race and color. It is designed and intended to perpetuate the slave tradition sought to be destroyed by the Civil War and to prevent Negroes from attaining the equality guaranteed by the federal Constitution. Racial separation is the aim and motive of paramount importance—an end in itself. Equality, even if the term be limited to a comparison of physical facilities, is and can never be achieved. The only premise on which racial separation can be based is that the inferiority and the undesirability of the race set apart make its segregation mandatory in the interest of the well-being of society as a whole. Hence the very act of segregation is a rejection of our constitu tional axiom of racial equality. The Supreme Court in Plessy v. Ferguson, as we have seen, without any facts before it upon which to make a 24 It is true that despite the fact that the Court’s position on the validity of a separate law school for Negroes was not necessary to its decision, the Court by way of dictum made the following obser vation after referring to the state’s obligation to provide substan tially equal advantages for higher education to Negroes and white students: “ The state has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.” 36 valid judgment adopted the “ separate but equal” doc trine. Subsequent cases have accepted this doctrine as a constitutional axiom without examination. Hence what was in reality a legal expedient of the Eeconstruction era has until now been accepted as a valid and proved constitutional theory. The record in this case clearly demonstrates the fallacious and untenable rationale on which the doctrine is founded and the necessity for its repudiation. Equality without regard to race, color or creed is the very essence of our way of life. The constitution guaran tees it; our moral and ethical codes demand it. Since segregation and equality are mutually exclusive this Court must find that appellant’s rights under the federal Constitution can only be satisfied by his acceptance and enrollment in the University of Texas School of Law on the same basis with other students. Ill The demonstration in this record that racially separate schools in fact and inevitably deny the equality required by the Fourteenth Amendment, precludes the application of any “separate but equal” doctrine in the field of public education and in the circumstances of this case. A. The law school set up by appellees does not meet the requirements of the Four teenth Amendment. The appellees admit that the equal protection clause of the Fourteenth Amendment to the Federal Constitu tion requires them to provide this appellant with the opportunity to secure a legal education in Texas. They, 37 however, contend that this requirement is met by pro viding appellant with a separate law school “ substan tially” equal to that at the University of Texas where appellees have provided white citizens of Texas with an opportunity to acquire the best legal education offered in the State. In what appears to be an attempt to comply with the constitutional requirements of the Fourteenth Amend ment, appellees set up for this appellant a law school which they contend and attempted to prove, on the trial of this case, is a law school substantially equal to that at the University of Texas. But the whole testimony, and especially that introduced by the appellees themselves, shows conclusively that this so-called law school is not substantially equal to that at the University of Texas in a single respect. As a matter of fact, the testimony in this case for the first time presents in bold relief the inevitable dis crimination inherent in a segregated school pattern. The Statement of Facts shows that the University of Texas Law School is a full-time, approved law school (S. F. 11, 31).25 * * It has a student body of some eight hundred (800) students (S. F. 351) a faculty of some twenty-four (24) or more full-time professors;28 a cur riculum offering forty-seven (47) law courses designed to prepare students to become practitioners, law teachers, 25 The American Bar Association and The Association of Amer ican Law Schools are the two recognized agencies which set mini mum standards to which every law school must conform in order to receive approval and consequent recognition as a law school. The University of Texas Law School is approved by both of these associations. 28 See University of Texas Publication No. 4529, August 1, 1945, School of Law. public servants, and legal researchers;27 a library of more than sixty-five thousand (65,000) volumes (S. F. 7 1 );28 a budget of several million dollars (S. F. 398-416); a large, well-equipped building with several classrooms and beautiful grounds (S. F. 74); a well-established, recog nized law review; 29 30 several moot courts and other student extracurricular activities; 80 prestige which comes from being attached to the State’s largest and best Univer sity with a national and international reputation and sixty-four (64) years of tradition.31 The “ law school” which appellees have hastily pro jected for Negroes is, on the other hand, part-time and unapproved (S. F. 75).32 It has no student body (S. F. 22); a faculty of part-time professors (S. F. 51, 56, 68) ; 33 a part-time Dean (S. F. 57) 34 no librarian (S. F. 231- 232); a curriculum offering only first-year law courses designed to give nothing more than the bare principles of the subject involved (S. F. 3 9 );35 a library of only 27 Ibid. 28 The American Bar Association requires that a law school have at least 7,500 well-selected books to meet the minimum standards of approval and the American Association of Law Schools requires 10,000. 29 Note 26, supra. 30 Note 26, supra. 81 The law school at the University of Texas was begun in 1883. 32 See the report to the 36th Annual Meeting of the Associa tion of American Law Schools on Consolidation of Legal Educa tion in Dallas, 9 Am. Law School Review 233 (1938) ; Storey, Progress of Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938). 33 The Association of American Law Schools requires a mini mum of four full-time professors irrespective of the number of students (Statement of Facts 35). 34 See Horack, Law Schools of Today and Tomorrow, 6 Am. Law School Review 658 (1927) for an excellent commentary on the part-time Dean. 85 See Boyer, Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Oregon Law Rev. 281 (1941)^ 39 two-hundred (200) volumes (8. F. 13, 50, 7 7 );36 37 a bud get of only One Hundred Thousand Dollars ($100,000);87 three or four small rooms, leased on the ground floor of an old office building, without any items of pulchritude (S. F. 13, 38, 71, 74, 8 0 );38 no law review;39 no moot court or other student activity of any description;40 cultural atmosphere which comes from being attached to a large, well-known University is completely lacking in every respect (S. F. 444) ;41 and of course this anoma lous creation of appellees can have no tradition.42 86 Note 28, supra. 37 Note 35, supra. 38 See the address of John C. Townes, former Dean of the Uni versity of Texas Law School before the 10th Annual Meeting of the Association of American Law Schools, 2 Am. Law School Review 436 (1910), for an excellent discussion entitled, Organi zation and Operation of a Law School. 89 Note 35, supra. 40 Note 35, supra. 41 Both the American Bar Association and the Association of American Law Schools advocate the abolishment of proprietary schools, i. e., schools which are not a part of a university. See Ballantine, H. W ., The Place in Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918), where he says: “ The evening law schools unfortunately do not have the cultural atmosphere which surrounds university life. By the university law schools system of legal education, the law school is conducted by and associated with a public educational institu tion which is not run for profit. It is an organic part of the university and has the benefit of university standards, spirit, sup port and facilities. The .student is required to be in constant resi dence at the school, which maintains classrooms and offices for the professors and a library for study. This library is the school laboratory. The faculty of the school devote their lives to teach ing, study, consultation and research. These schools aim to exact from their students practically their entire time and their exclusive devotion to the study of law. They have traditions, atmosphere, inspiration. ̂ They publish law reviews and quarterlies and are an important liberalizing and progressive influence, centers of legal research and productivity.” 42 Note 41, supra. 40 In the face of these facts, which were brought to light on the trial of this case, appellees insist that this law school which they have provided for appellant satisfies the requirement of the Fourteenth Amendment. The ease as presented and relied on by appellees shows the patent inequities inherent in a pattern of segregation. This, in itself, demonstrates the inevitable result of fal lacious reasoning brought about by the use of a hypo thesis that “ separate but equal” facilities can ever exist when as a matter of fact there can be no equality in a segregated system. Segregation and discrimination are so interrelated as to make it impossible to distinguish one from the other. B. The law school set up by appellees cannot meet the requirements of the Fourteenth Amendment. The contention of appellant is, on the other hand, that the Fourteenth Amendment requires that appellees make available to him the opportunity to receive the identical legal training which other Texans receive. The appellant further contends that the only way this can be done is by allowing him to attend the same law school which other Texans attend and that requiring him to attend a separate law school would not afford him the same education even though the physical facilities be substantially equal. Assuming that appellees had set up a separate law school equal in every physical respect to that at the Uni versity of Texas, the requirements of the Fourteenth Amendment would still not be met because: (1) the ap- 41. pellant would not receive the same education, and (2) the equality of the two schools is not determined by the physical identity of their facilities but by the similarity of their value in the eyes of the community. The testimony in this case showed that in order for appellant to receive the same education which the students at the University of Texas receive, it would be necessary for appellees to make available to him the same facilities in a similar setting. It is conceded that it would be possible for appellees to provide substan tially equal physical facilities, but it is not possible to provide a similar setting because the student body is composed of one student and not a cross-section of the community population. If this school set up by appel lees for this appellant had several students, all Negro, it still would not be equal to that at the University of Texas because it would not be as representative a student body as that of the University of Texas. The testimony shows that if appellant were allowed to attend the University of Texas, he would have the educational advantage of give and take among eight hundred (800) schoolmates, whereas if he is required to attend this seg regated law school, he will have no associates. The tes timony of the expert witnesses was that associates are as essential to a law school as any other facility and that the advantages of being in a classroom with many stu dents holding diverse views on the questions of law pre sented are obvious to the most casual observer (S. E. 42 349-379, 560-591).43 In short, there would be no way of duplicating the associations which appellant would have at the University of Texas. The testimony in this case further shows that assum ing equal facilities, appellant would not receive the same education because the school is unapproved, completely lacking in student activity and has no traditions or cul tural background (S. F. 349-379, 560-561). These very essential attributes of the University of Texas law school appellees cannot duplicate either.44 Appellant does not seek to have appellees establish a separate school for Negroes with facilities equal to those at the University of Texas because appellant con tends, as indicated infra, that “ equality is determined not by the physical identity of things or facilities fur nished, but by the identity or substantial similarity of their values—in short, by the community judgment at tached to them.” There can be no question that a seg regated law school for Negroes has a very low value in 43 See: Ballantine, The Place in Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918) ; Boyer, The Smaller Law Schools, 20 Oregon Law Rev. 281 (1941) ; Proceeding of the 36th Annual Meeting of the Asso ciation of American Law Schools, 9 Am. Law School Review 233 (1938) ; Clark, Contrast: The Full-Time Approved Law School Compared With The Unapproved Evening School, 20 ABA Journal 548 (1934) ; Horack, Law Schools of Today and Tomor row, 6 Am. Law School Rev. 658 (1927) ; Maxwell, Chairmans Address, 1 Am. Law School Rev. 337; Snyder, The Function of the Night Law School, 7 Am. Law School Rev. 827 (1933); Address of Harlan F. Stone, 4 Am. Law School Rev. 483 (1919); Brown, Lawyers and the Promotion of Justice (1938) ; Vance The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914) ; Reed, A. Z., Present-Day Lazo Schools (1928) ; Reed, A. Z., Social Desirability of Evening or Part-Time Law Schools, 7 Am. Law School Rev. 198 (1931). 44 Note 43, supra. 43 the eyes of every community since the purpose is to segregate a group which Texans have been led to be lieve is inferior.45 If this were not true, then the “ jim- crow” school would never have appeared. Since there is not even a scintilla of merit to the contention that Negroes are inferior and should be segregated, appel lees should be prevented from excluding appellant solely on account of his race and color. If they did set up a school for him with facilities which appear, to be equal in terms of monetary value, it would not be equal in the mind of the community. Therefore, since the value of any institution is undeniedly determined by the com munity judgment of it, the appellees should be prevented from excluding appellant from their school and relegat ing him to a school which could not possibly be equal because of its low value in the eyes of the community. C. The function of a state-supported law school. The function of a state-supported law school is to serve the interests of the people of the state as a whole and not merely lawyers as a class nor those who seek to perpetuate bigotry and outmoded notions of racial superiority. The interests of the people of a state are most effectively served by providing through the state- supported law school the best type of legal education that experts in the field have been able to recommend, as the welfare of society requires, not only that the public be free from incompetent counsel, but that the laws be 45 It is common knowledge that Negroes in the South have been relegated to a position of inferiority in every area of public life and that such a position is natural is a view which is widely held. 44 wisely and justly made and fairly and honestly admin istered. Certainly the people of a state would not allow their young physicians, whose job it will be to safeguard the lives and health of the people, to be trained in schools teaching antiquated methods and using outdated equip ment when medical experts have devised more advanced methods and more scientific equipment. Since law stu dents are the ones to whom will be entrusted the admin istration of justice, it is at least equally important to the welfare and safety of all the people that these persons receive the best possible training available.46 Thus, all resources the state can afford should be directed to this end and not dissipated in an attempt to maintain un democratic practices of racial segregation. The modern law school today has at least four objec tives: (1) to prepare for law teaching, (2) to prepare for legal research, (3) to prepare for practice, (4) to pre pare for public service.47 In order to achieve these objectives, an adequate law school necessarily has the facilities for so doing. First and foremost financial resources are at their disposal. These resources are needed to obtain a large, well- trained faculty. The faculty must be large in order that each individual instructor carry as light a teaching load as possible. Even the best professors must devote their full time to their teaching. In order to do this, their income must be adequate.48 46 See Vance, The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914) ; McCormick, C. T., The Place and Future of the State University Law School, 24 N. C. Law Rev. 441. 47 Boyer, The Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Oregon Law Rev. 281 (1941) ; (S. F. 349-379, 560-591). 48 Ibid. 45 A large, extensive, and well-organized library with several trained librarians is indispensable. Without such a library the student will be presented with a prac titioners ’ library, rather than one adapted to legal re search, and graduate work would be impossible.49 An adequate law school offers special compilations of material to its students and a great deal of integra tion of courses in order to allow a teacher to become spe cialized.50 The student body is composed of a cross-section of the population in order that the students may have the op portunity to come into contact with all the current think ing and familiarize themselves with the problems of their state. In addition to the financial resources, the faculty, the library, the curriculum and the student body, the effec tiveness of the adequate law school is greatly enhanced by its extra-curricular activities such as, legal aid clinics, legal institutes, drafting service, briefing service, moot court and law review. These activities cannot be included in the organized effort of the modern law school without adequate faculty, the time required, the special knowl edge required and the requisite financial resources.51 A proper building, which is well constructed, with comfortable and healthful rooms and good acoustics, lounges, offices and grounds, is essential.52 Finally, tradition and cultural atmosphere are as in dispensable to a first-class law school today as any other 49 Ibid. 50 Ibid. 51 Ibid. 52 Footnote 38, supra. 46 condition and neither Mark Hopkins and a log nor a few rooms in a downtown office building will fulfill this re quirement.53 The difficulties encountered in attempting to make part-time schools the equivalent of full-time schools are so great that the most ardent partisan of the part-time school, Mr. Alfred Z. Reed, says that part-time schools should cease striving to duplicate the work of full-time schools and find a field of instruction to which they, and only they, can do justice.54 When the medical profession realized the danger to the community of small schools with inadequate facili ties, it set out to organize the field of medical education, to raise the standards and to drive out the schools which could not meet the requirements for first-rate medical education. Available statistics which indicate the sharp decline in the number of medical schools which could not meet certain requirements represent the result of pressure exerted by the American Medical Association, the Association of American Medical Colleges, state boards of examiners, the Carnegie Foundation for the Advancement of Teaching, and other groups. A similar fate awaits the small, inadequate law school.55 In 1936, the American Bar Association statistics showed that there were more unapproved law schools in Texas than any other state in the Union. Of the twelve law schools in Texas at that time, nine were unap proved.56 53 Footnote 41, supra. 54 Reed, A. Z., Social Desirability of Evening or Part-Time Law School, 7 Am. Law School Rev. 198 (1931). 55 Brown, Esther Lucile, Lawyers and the Promotion of Justice (1938). 56 Ibid. 47 This deplorable situation led to a movement in Texas to consolidate legal education. The aid of the Associa tion of American Law Schools was sought in this effort. At the 36th Annual Meeting of the Association in 1938, a report was made of what had occurred in Dallas as a result of this effort. The report stated that early in 1937 there was a series of conferences by representa tives of the YMCA, which was the largest of these part- time unapproved schools, Southern Methodist Univer sity Law School, the Dallas Bar Association, the Ameri can Bar Association, and the Association of American Law Schools. As a result of these conferences, an agree ment was drawn and acted upon which resulted in the retirement of the YMCA from the field of legal educa tion. The YMCA school was absorbed by Southern Methodist University. The Dallas Bar Association thereupon adopted regulations which were designed to eliminate small, part-time and non-accredited law schools. The report also indicated that similar consolidations were under way in other areas.57 Most of the part-time law schools were pushed out of the field after the repeal of the “ diploma privilege” and the adoption of higher standards for admission to the bar by the Texas Su preme Court.58 R. G-. Storey of the Texas bar said of these higher standards: “ In the effort of organized bar associations to elevate the standards for admission to the bar, it is not the desire to work a hardship upon any 57 See report of the 36th Annual Meeting of the Association of American Law Schools, 9 Am. Law School Review 233 (1938). The “ diploma privilege” was the system whereby one hold ing a law school diploma was riot required to take the bar. 48 law school, and the American Bar Association will encourage and help any law school that will ele vate its standards and meet the requirements, but if a school cannot meet such requirements because of inadequate financial support or other reasons, its graduates cannot meet the rising standards of the profession. The standards of admission to the bar should be fixed in accordance with the public interest, rather than for the benefit of any law school or individual . . . It is therefore the goal of organized bar associations to so elevate standards in all of the states that those who come into the profession will be better trained, both in general education and law study, than heretofore, which will naturally result in elevating the pro fession, as well as serving the public in a more efficient manner. . . . ” 59 By setting up a small, part-time, unapproved law school for this appellant, appellees are, in fact, lowering the standards of legal education in the State of Texas for all citizens and dissipating the resources of the state by attempting to maintain two inferior law schools rather than making the one which is now in existence serve the needs of the state on the highest possible levels.60 59 Storey, Progress in Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938). 60 See the address of Charles E. Dunbar before The Association of American Law Schools (1939), The A B A Program in the Field of Legal Education and Admissions to the Bar and the Part-Time School Problem; President’s Address, 17th Annual Meeting Asso ciation of American Law Schools, 4 Am. Law School Rev. 483 (1919) ; Chairman’s Address, A B A Section on Legal Education, 1 Am. Law School Rev. 337 (1905). p 49 D. The expert testimony introduced at the trial establishes that there is no rational justification for segregation in professional education and that substantial discrimina tion is a necessary consequence of any separation of professional students on the basis of color. 1. The professional skills developed through gradu ate training are among the most important elements of our society. Their importance is so great as to be almost self-evident. They are the end results, the products of education, but, at the same time, they do not constitute the full purpose of education. A definition of that pur pose, particularly in its relationship to segregation, has been furnished by an eminent authority, Dr. Robert Red- field of the University of Chicago. He states: “ . . . I should say that the main purposes of edu cation are to develop in all citizens in accordance with the natural capacities of those citizens, the fullest intellectual and moral qualities, and the most effective participation in the duties of the citizens” (8. F. 312). It clearly follows then, that segregation is an abortive factor in the full realization of the objectives of educa tion. First, it prevents both the Negro and white, student from obtaining a full knowledge and understanding of the group from which he is separated, thereby infringing upon the natural rights of an enlightened citizen (S. F. 315). Second, a feeling of distrust for the minority group is fostered in the community at large, a psychological atmosphere which is not favorable to the acquisition and conduct of an education or for the discharge of the duties of a citizen (S. F. 315, 316). Lastly, one of the effects of segregation in education with respect to the general 50 community is that it accentuates imagined differences between Negroes and whites (S. F. 316). On this point, the verbatim text of Dr. Redfield’s testimony merits quotation: “ .These false assumptions with respect to the ex istence of those differences are given an appear ance of reality by the formal act of physical sepa ration. Furthermore, as the segregation, in my experience, is against the will of the segregated, it produces a very favorable situation for the in crease of bad feeling, and even conflict, rather than the reverse” (8. F. 316). It is clear, then, that in seeking a form of education free from any racial restrictions, one wants not only the benefits and skills that that education can yield him, but, primarily, he desires to live and function as an enlight ened citizen in a representative democracy. 2. Qualified educators, social scientists, and other experts have expressed their realization of the fact that “ separate” is irreconcilable with “ equality” .61 There can be no separate equality since the very fact of segre gation establishes a feeling of humiliation and depriva tion to the group considered to be inferior.62 The sociolog ical and political significance of the practice of segre gation is found not only in the deprivations experienced by the minority group, but by society at large. In one of the most exhaustive studies ever conducted on the sub- 61 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. I, page 580. Charles S. Johnson, Patterns of Segregation, New York, 1943, page 4, 318. Charles S. Mangum, Jr., The Legal Status of the Negro, Chapel Hill, 1940. 62 Carey McWilliams, “ Race Discrimination and the Law’ , Science and Society, Volume IX Number 1, 1945. 51 ject of segregation, the noted sociologist Gfunnar Myrdal has stated: “ Segregation and discrimination have had ma terial and moral effects on whites, too. Booker T. Washington’s famous remark that the white man could not hold the Negro in the gutter without getting in there himself, has been corroborated by many white southern and northern observers. Throughout this book, we have been forced to notice the low economic, political, legal and moral standards of Southern whites—kept low because of discrimination against Negroes and because of obsession with the Negro problem. Even the am bition of Southern whites is stifled partly because, without rising far, it is so easy to remain ‘ super ior’ to the held-down Negroes.” 153 There are many other authoritative studies which bear out Mr. Myrdal’s observations.63 64 In addition to the psychological atmosphere of dis trust and the practical inequities which result under a segregated system, the citizens of both the majority and minority groups are deprived of that inter-change of ideas and attitudes which is so necessary to a full educa tion (S. F. 320, 325). 3. No one questions the kind of separation which the community imposes in the interest of public safety, con venience or welfare. There is ample justification for differences in the treatment of the old and the young, the healthy and the sick, the criminal and the law-abiding. In each of these cases the act of separation is justified 63 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 1, page 644. 84 H. Cantril, Psychology of Social Movements, 1941, pages 78-122; Gene Weltfish, Causes of Group Antagonism, Journal of Social Issues, Vol. 1. 52 and is motivated by a desire to protect society at large, and to promote the interest of both groups. There is, however, no rational basis, no factual justi fication for segregation in education on the grounds of race or color. This type of segregation is often rational ized on the ground that “ Negroes have an inferior mental capacity to whites.” Yet this premise is completely in valid and no act of segregation based upon it can be up held as reasonable.65 Scientific studies have- been con ducted in which representative samples of both groups, Negro and white, have been placed in nearly identical situations with identical tasks to perform. The per formances of these tasks have indicated the intellectual faculties and the capacity to learn of the people being tested (S. F. 313, 314). The results of such tests as in dicated by the testimony in this case read as follows: “ The conclusion then, is that differences in in tellectual capacity or inability to learn have not been shown to exist as between Negroes and whites, and further, that the results make it very probable that if such differences are later shown to exist, they will not prove to be significant for any edu cational policy or practice” (S. F. p. 314). Moreover, it has been demonstrated, that in cases where no segregation exists, or where it has ceased to exist, the results have never been disastrous but often 65 The Black and, White of Rejections for Military Service, American Teachers Association, August, 1944, page 29. Otto Klineberg, Negro Intelligence and Selective Migration, New York, 1935. J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities of Whites and Negroes” , Mental Measurement Mono graph, 1929.. W . W . Clark, “ Los Angeles Negro Children” , Educational Research Bulletin, Los Angeles, 1923. 53 favorable (S. F. 317, 318, 454). In the course of the instant trial, one of the expert witnesses, on being ques tioned as to the effect of Negro and white students study ing together at the University of Chicago, testified: “ Q. Were there any ill effects at all? A. I don’t know of any. “ Q. Do you know of any good effects? A. Yes. Perhaps I should mention a case. The students were denied admission, Negro students were discouraged from admittance is perhaps a more accurate statement, to the laboratory school of the University. “ They were discouraged admission for a great many years. Then it was made apparent that they would be welcome, and they began to come, and there was opposition for a minority of the aca demic community to the step. Many evil conse quences were told. None of those consequences took place, but, on the other hand, there was an improvement in the community in that there was a representation of the national community which is favorable to education, and the relations between the white and the Negro groups were improved in parent-teacher and endeavor” (S. F. 317, 318). Since all available evidence controverts the theory that Negroes have an inferior mental capacity to whites, and moreover, since the two groups work well together and to their mutual advantage, it must be concluded that any claim of inferiority is motivated by a desire to per petuate segregation per se.66 68 68 McGovney, Racial Residential Segregation by State Coiirt Enforcement of Restrictive Agreement, Covenants or Conditions in Deed is Unconstitutional (1945), 33 Cal. L. Rev. 5, 27 (note 94: “When a dominant race, whether white or Negro, demands Separation, it is fallacious to say . . . that the intention and effect is not to impose a ‘badge of inferiority’ on the other.” ) 54 4. It may be that the pattern of segregation which has existed in the South for more than fifty years cannot be abolished instantaneously. But although the term “ gradual” may be used adjectively in relation to the overall pattern, it should not be used as a rationalization for inaction at any given instance. Testimony in this case has been submitted by an expert witness for the ap pellants to the effect that: ‘ ‘ I think that all change should not come on any more rapidly than it is consistent with the gen eral welfare” (S. F. 321). However, when questioned as to whether it isn’t im possible to abolish segregation in a community where it has existed for a long number of years (S. F. 321), the witness for the appellant testified: “ A. No I don’t agree to that. “ Q. Do you think the laws should be changed tomorrow ? A. I think that segregation is a matter of legal regulation. Such a law can be changed quickly . . . Segregation in itself is a matter of law, and that law can be changed at once, but if you mean the attitude of the people with re spect to keeping away from people of another race, then perhaps I have another answer” (S. F. 321- 322). * * * * # * # # # “ I think in every community there is some seg regation that can be changed at once, and the area of higher education is the most favorable for mak ing that change” (S. F. 322). The appellants in this case are fully cognizant of the fact that the pattern of segregation has become deeply entrenched in the general mores in the South. Yet the 55 basis for a new and forward looking approach exists in the record before this Court (S. F. 306-316, 380-476). New rulings made on the basis of a record which shows a pattern of inequality and injustice under our Constitution, are not revolutionary but evolutionary. 5. The correlation between segregation and discrim ination in education is demonstrated by the evidence in this record dealing with the educational system of the State of Texas. It is no accident, no coincidence, that wherever segregation is decreed and enforced, there you will find inequality. A large section of the testimony in troduced before the Trial Court proves emphatically that in this state, where the Negro and the white schools are separated, the Negro schools are inferior and inadequate in every significant respect. Dr. Charles H. Thompson, an authority in education whose unexcelled qualifications as an expert witness are amply set forth in the record (S. F. 380-387) made a documented, scientific study of the comparative educa tional facilities for Negroes and whites in Texas at the request of this appellant (S. F. 388). Analyzing the situation on the basis of the best recognized criteria. Dr. Thompson found, in substance: (a) Physical Facilities. The combined asset value of the plant facilities of the thirteen white state-supported schools above high school level is in excess of $72,000,000; that of Prairie View, the only Negro school of “ higher learning” , is slightly more than $4,000,000 (S. F. 401). This is less than half of the proportionate amount which would be allocated on the basis of the Negro population of the state. On a per 56 capita basis, $12.88 was invested in plant assets for every white person in Texas, $4.71 for every Negro (S. F. 402). The per student appropriation at Prairie View is much less than that found to exist at small white teachers colleges (S. F. 414-415). Texas provided through state- supported institutions for 66.8% of its white college students, only 31.8% of her Negro students in Senior colleges (S. F. 418). (b) Current Expenditures. In 1943-44, Texas appropriated $11,071,490 in State, County and District funds for higher education in Texas. They appropriated $10,858,018 to white institutions—i. <.. $1.98 per capita to every white citizen. They appropriated $113,472, or $.23 per capita, to every Negro in the popu lation (S. F. 410). The white institutions, then, got 8.06 times as much as did the Negro institutions. (c) Curriculum. In Texas there are 106 under-graduate fields of specialization in the white state-supported institutions, and 49 in the Negro institution, Prairie View (S. F. 424). Texas A. & M., a white state-supported institution, offers ■at5 fields of specialization as compared with 13 offered by Prairie View, a ratio of more than 3 to 1. On the other hand, a number of sub-collegiate high school trade courses are given at the Negro university, Prairie View, such as mattress making, auto mechanics, carpenting, laundering and dry cleaning, etc. (S. F. 425). These skills are usu ally taught in high schools or lower vocational schools (8. F. 425). On the graduate level, the investigation reveals that a total of 159 Negroes received graduate degrees during approximately a five-year period, as con- 57 trasted with' some 3,000 white students who received graduate degrees in the same period (8. F. 427). More over, the range of subjects in white graduate schools is considerably wider: “ The National Survey of Higher Education for Negroes . . . , a U. S. Office publication, indicated in 1942 that the Texas state-supported higher in stitutions for whites offered graduate work in 65 fields, and 5 for Negroes” (8. F. 428). The University of Texas, at the present time, gives 10 different types of graduate degrees in 40 fields. Prairie View gives a Master’s Degree in 13 fields (8. F. 428). (d) Faculty. In comparing the faculty of white and Negro schools of higher learning, in Texas, two key factors must be con sidered, namely, salary and training (S. F. 434). In order to attract and retain a good teaching staff, faculty members must be paid good salaries and find the work ing conditions satisfactory. Dr. Thompson’s study dis closed that twenty-five well-prepared and able teachers were lost to other institutions within the past five years because of the inability of Prairie View to match their salary offers (S. F. 436). It further revealed that the median salary of a full professor in Prairie View is $2,025.00, while the lowest salary paid to a full professor in a state-supported white college is $2,700 (8. F. 436). As to training, the picture is identical. In 1945-46, only 9.3% of the faculty members of Prairie View had degrees of the doctorate level (S. F. 438). 58 (e) Library. The University of Texas library has 750,974 titles. Prairie View has 25,000. Even a white college with a smaller student body (1,205 students), such as East State Teachers College, had 81,974 volumes in 1945-46; Prairie View had 25,000 volumes for 1,619 students (S. F. 439). The library of one Negro college was found by an im partial survey committee to be inadequate even for under graduates, not to speak of its complete inability to meet the needs of its graduate students (S. P. 441). (f) Standing in the Educational World and Com munity. • Prairie View is not accredited by The Association of American Universities or by any of the national profes sional councils (S. P. 442). It is regarded as a “ poor college” ; it is not a “ real university” (S. P. 444). A Negro student there cannot get the type of under graduate or graduate education that is available to the white student (S. P. 443-444). The same conditions which exist in the undergraduate field are emphasized and brought into sharper relief in the graduate sphere. In the five-year period from 1939 to 1943 only 159 Negroes received graduate degrees as compared with more than 3000 white students during the same period (S. P. 427). The University of Texas and A. & M. College of Texas, between the period of 1940 and 1945 gave 212 doctorates. Now, if a Negro wishes to obtain a Doctor’s Degree in the State of Texas, the only recourse he has in so doing is through what is ad mittedly an inadequate scholarship fund (S. P. 429). 59 It might also be well to note, at this point, the state ment of one of appellee’s own expert witnesses, who, upon direct examination stated: “ I am unable to think for the moment of colored institutions and white institutions which do have equal facilities with which I have been associated” (S. F. 547). 6. The inferiority of professional and higher edu cation available to Negroes in Texas makes itself di rectly felt in the woeful lack of qualified professional men in the Negro community of Texas. In the year 1940, there was, in the State of Texas, one white doctor to every 903 of the white population, and one Negro doctor to every 5,637 of the Negro popu lation. Thus there were more than six times as many doctors in proportion to the white population as there were Negro doctors in proportion to the Negro popu lation (S. F. 420, 421). The dearth of Negro pro fessionals in the South does-not stem from any lack of desire for professional education on the part of these citizens, but is the direct result of the artificial limita tions placed on their educational opportunities. Thus, in Tennessee, where a minimum of opportunity was af forded by the Meharry Medical School, there are almost three times as many Negro doctors as there are in Texas. A parallel situation exists in the case of dentists. In 1940 there was in the State of Texas one white dentist to every 2,886 of the white population, and one Negro den tist for every 11,412 of the Negro population (S. F. 421). When we compare the ratio in the State of Tennessee, where Meharry Dental School admits Negroes, there are twice as many Negro dentists as there are Negro dentists 60 in Texas'. And in the District of Columbia, where How ard University admits Negroes to.the dental school, there are four times as many dentists as there are in Texas (S. F. 422). Statistics in reference to the number of Negro engi neers bear out this same pattern. But in the case of lawyers, we have the most graphic illustration of what the denial of professional education to Negro citizens can mean. In 1940, in the State of Texas, the ratio of white lawyers to the white population was one to every 712, whereas the ratio of Negro lawyers to the Negro population was one to 40,191 (S. F. 423). 7. The conditions summarized authoritatively by Dr. Thompson and other witnesses at the trial are by no means peculiar to Texas. They exist in Louisiana, in Alabama, in Mississippi, the whole South. They exist wherever and whenever there is enforced “ legal” segre gation. That this critical situation is not peculiar to Texas alone but is an inevitable result of the policy of racial segregation and discrimination in education is demon strated by an analysis made by Dr. Thompson.67 He states that: “ In 1940 there were 160,845 white and 3,524 Negro physicians and surgeons in the United States. In proportion to population these represented one 67 Charles H. Thompson, “ Some Critical Aspects of the Prob lem of the Higher and Professional Education for Negroes,’ Journal of Negro Education (Fall, 1945). 61 physician to the following number of the tChite and Negro population, respectively: Section White Negro U. S____-______________ 735 3,651* North _____________ ___ 695 1,800* South _____________ ____ 859 5,300* W est___:___________ _______ 717 2,000* Mississippi ________ ___ 4,294 20,000* “ Law—in 1940 there were 176,475 white and 1,052 Negro lawyers in the U. S. distributed in propor- tion to population as follows: Section White Negro U. S________________ 670 12,230* North _____________ ___ 649 4,000* South __ _________ _______ 711 30,000* W est______________ 699 4,000* Miss.______________ ____ 4,234 358,000* “ There are 18 times as many white lawyers as Negro lawyers in the country as a whole; 45 times as many in the South;' and 90 times as many in Mississippi. Even in the North and West there are six times as many white lawyers as Negro. With the exception of engineering, the greatest disparity is found in law.” The record of this policy of educational segregation and denial of professional education to Negroes is clear. In the 17 08 states and the District of Columbia in 1939- 1940 the following number of states made provisions for * To the nearest hundred. The seventeen states which require segregation in the school system are: Alabama, Arkansas, Florida, Delaware, Georgia, South Carolina, North Carolina, Texas, Tennessee, Missouri, Mis sissippi, Maryland, Virginia, West Virginia, Oklahoma, Louisiana, Kentucky and the District of Columbia. 6 2 the public professional education of Negro and white students: 69 Profession White Negro Medicine __________ ______ 15 0 Dentistry__________ ______ 4 0 Law______________________ 16 1 Engineering _______ 17 0 Social Service _____ ______ 9 0 Library Science____ ______ 13 1 Pharmacy _________ ______ 14 0 The result has been that the qualified Negro student is unable to obtain the professional education for which he may be fitted by aptitude and training. The implications of all this evidence are overwhelm ing. The facts are these: whenever and wherever seg regation in education is practiced under state sanction, there is admitted and flagrant discrimination in the treat ment of the Negroes. Discrimination and inequality fol low inevitably and inexorably from the mere fact of segre gation. The record not only of this case but of the educa tional experience of the nation demonstrates that where schools are separated on racial grounds, there must be inequality. “ Separate and equal” is a legal fiction to which the states give only casual lip service. This record throughout and the experience of the teaching profession demonstrate that there is an inherent and fundamental contradiction between “ segregation” and “ equality.” However valid in theory, it is apparent that in practice, in this case and in thousands of others, the Negro who honestly seeks learning cannot get it in a “ separate” school. 69 Based on data in National Survey of Higher Education for Negroes, Vol. II, page IS, 1942. 63 Conclusion Appellant has conclusively proved that the right to equal protection guaranteed him under the Fourteenth Amendment can only be secured by his admission forth with to the University of Texas School of Law. It has S been clearly established herein both by appellant and by appellees that the “ equal but separate” doctrine on which the constitutional and statutory requirements for segregated schools in Texas are based is an invalid hy pothesis. This record demonstrates that one cannot recognize the requirement of equal treatment as a valid principle and simultaneously defend the practice of racial segregation. Fundamental to our American tradition is the belief in individual, racial and religious equality. This belief has been embodied in our constitutions, enacted into our statutes and carefully protected and preserved in our court decisions. Texas and other southern states have attempted to perpetuate a segregated system. They have rejected the fundamental premise of equality and in reality believe that Negroes hold and must necessarily retain a status inferior to whites. This rejection of a concept considered basic to our system is given legal status by a theory which purports to be founded upon the premise of equality. A choice must be made between these two conflicting concepts. Our Constitution and laws make clear that only one choice can be made. Wherefore, it is respectfully submitted that this Court reverse the judgment of the Court below refusing appel lant’s application for writ of mandamus against appel- 64 lees requiring them to admit him to the University of Texas School of Law. W. J. D u r h a m of Dallas T h u rg o o d M a r s h a l l of New York Attorneys for Appellant. By: ------------ J . M. N a b r it 0 , B . B u n k l e y , J r . H. M. B e l l in g e r R o b e r t L. C a r t e r Of Counsel. The rule has been complied with and a copy of this brief has been delivered to the Honorable Price Daniels, At torney General of the State of Texas By: Supreme Court of the United States October Term, 1948 IN' T H E No. HEMAN MARION SWEATT, vs. Petitioner, THEOPHILIS SHICKEL PAINTER, ET AL. APPENDIX TO PETITION AND BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF TEXAS W . J . D u r h a m , W i l l i a m H . H a s t ie , W i l l i a m R . M in g , J r ., J a m e s M . N a b r it , J r ., T h u rg o o d M a r s h a l l , Attorneys for Petitioner. R o bert L. C a r t e r , E. B. B u n k l e y , J r ., H a rry B e l l in g e r , U . S. T a t e , Of Counsel. A n n e t t e H . P e y s e r , Research Consultant. IN T H E Supreme Court o f the United States October Term, 1948 No............... HEMAN MARION SWEATT, vs. Petitioner, THEOPHILIS SHICKEL PAINTER, ET AL. A p p e n d ix to P e t it io n F o e W r i t o f C e r t io r a r i T o T h e S u p r e m e C o u r t o p t h e S t a t e o f T e x a s i 11 APPENDIX The following data constitute a portion of a compre hensive and definitive study which demonstrates the type, quality, and quantity of the educational facilities available under the “ separate but equal” formula. The source material for this study is based upon publi cations of the United States Department of Education, publications of other government agencies and bodies, as well as articles which have appeared in accredited journals of education. This portion of the study, which emphasizes the edu cational inequalities on the higher and professional levels, is filed to give this Court a true picture of “ separate but equal” education. In the seventeen southern states and the District of Columbia, separate schools are mandatory under law. Of the remaining thirty-one states, in all but a few segregated schools are not legal or are actually illegal.1 Approximately ten million or 77% of all Negroes in the United States live in the southern region, admittedly the most economically backward section of the country. This backwardness is overwhelmingly due to the maintenance of segregation and a caste system which relegates all Negroes to a position lower than the lowest white. The adamant stand which the South has taken against the training and utilization of 22.3% of its human resources, by depriving 1 Reddick, L.D. “ The Education of Negroes in States Where Separate Schools Are Not Legal,” The Journal of Negro Education, Summer 1947, Vol. X V I, No. 3, p. 296. The seventeen states requir ing segregation are: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Caro lina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, and the District of Columbia. ,111 its Negro citizens of a fair and equal share of one of the basic democratic rights—the right to a good education— means that this right is denied to the very people it seeks to protect. As President Truman’s Commission on Higher Education has phrased it : 2 * Segregation lessens the quality of education for the whites as well. To maintain two school systems side by side—duplicating even inadequately the buildings, equipment, and teaching personnel— means that neither can he of the quality that would he possible if all the available resources were devoted to one system, especially not when the States least able financially to support an adequate educational program for their youth are the very ones that are trying to carry a double load. Thus every southerner suffers from lowered educational standards, Negroes most severely. Every southerner suf fers because the maintenance of this dual system demands that a large percentage of state tax-monies be diverted away from other fields where it is vitally needed and where it rightfully belongs. And subsequently the whole nation suffers because it is bereft of potential talent left unde veloped.8 Although educational inequities result from segregated education on every level, it is in the field of higher edu cation that the results are most easily viewed. 2 Higher Education for American Democracy, Report of the President s Commission on Higher Education, Government Printing Office, Washington, D. C., 1947, Vol. I, p. 34. We believe that federal funds, supplied by taxpayers all over the nation, must not be used to support or perpetuate the pattern of segregation in education, public housing, public health services, or other public ̂ services and facilities generally . . . it believes that segregation is wrong morally and practically and must not receive financial support by the whole people.” To Secure These Rights, recommendation V o f the President’s Committee on Civil Rights, p. 166. 8 IV H ig h e r E d u c a t io n The amount and the degree of opportunity, and the ex tent to which facilities for higher education are available, are probably the best indices to the educational environ ment of an area. They reflect the value that the community places in the education and the maximum achievement of its people, as well as indicating the general economic and social conditions of the community itself. In the 17 states and the District of Columbia, there are 530 institutions of higher learning for whites, 192 public colleges and universities supported by state and federal funds included. Institutions for Negroes number 104 in cluding 39 supported by public funds.4 5 Whereas Negroes are 22.3% of the southern population, they have but 16.4% of the total number of institutions providing higher educa tion in the southern region. More indicative, they have but 16.9% of those supported at public expense, although their need is proportionately greater. Their proper * share (22.3%) would entail providing 48 more colleges and uni versities, 16 to be supported as public institutions. What does this mean in terms of manpower? 1947 saw an unprecedented enrollment in colleges and universities throughout the country with a total of 2,338,226 students attending classes. 683,235 of these students were enrolled in southern institutions, making a ratio of students to popu lation of 1 :66.5 for the region.6 4 Educational Directory, Part 3, “ Colleges and Universities,” U. S. Office of Education, Washington, 1947. * By “ proper share” we are in no way suggesting a quota, but are using the population as a means of measuring the adequacy and in adequacy of facilities and provisions made for the education of Negro citizens. 5 1947 Fall Enrollment in Higher Educational Institutions, U. S. Office of Education, November 10, 1947 (Circular No. 238). V Enrolled in institutions supported at public expense were 57.9% of the white students in the South and 54.3% of the Negro students, while Negroes were only 10.3% of the total benefiting from these public facilities. Furthermore, only 5.5% of all expenditures for public institutions in the South were for Negro colleges and universities.6 The per cent of Negro students in public institutions should have been more than doubled and expenditures quadrupled were they receiving benefits equal to those extended to white students.* * Further examination of the data reveals that there are more institutions both public and private (except in Delaware) for the use of whites than for Negroes, and which are consequently more geographically spaced, thereby mak ing the facilities more readily accessible. A comparison of the South with the rest of the country shows further what the duplicated facilities of segregation mean. Whereas the South maintains more universities and colleges per 1,000 population than the rest of the nation, its ability to support them is far less. It may be noted that even with more institutions, a smaller percentage of the South’s population as compared with the rest of the coun try had in 1940 completed four or more years of college. In 1947, there was one student in a southern college or uni versity for every 66.5 persons in the South, while in the North and West there was one student for every 52 persons in the population. 6 Mordecai W . Johnson, Hearings Before Subcommittee on Ap propriations, House of Representatives, 80th Congress, February 24, 1947, p. 145. * It is interesting to note that the enrollment in New York Uni versity in the fall semester of 1947 was 46,312. This is a larger stu dent body than the total enrollments in 15 of the individual southern states and the District of Columbia. Only Missouri and Texas had larger state-wide enrollments than that for this single Northern uni versity. In this connection, it should also be borne in mind that the great majority of northern Negroes find it necessary, in the face of restrictive quotas, to go South for their college education. V I We have already indicated the general state of educa tion prevailing in the southern states. The following data constitute a specific and graphic demonstration of the in equities in segregated education.7 1. Southern Negroes are 7.7% of the total United States population, yet they have only 6.1% of all institutions of higher education in the country. Southern whites are 26.7% of the total population, yet they have 31.2% of all the colleges and universities in the coun try. 2. The South spends 22.3% of all money expended for higher education in the country, yet Negroes get only 1.8% of this money, while southern whites get 20.5%. 3. The average expenditure for southern universities and colleges (even including the Negro institutions) is over twice the amount spent for the average Negro institution. Whereas $4.28 is spent per capita white, only $1.32 is spent per capita Negro population.* 4. In only 3 states and the District of Columbia does the number of Negroes enrolled in publicly supported in stitutions constitute a reasonable percentage of all students benefiting from such educational provisions in anything like what their proportion in the popu- la tion w arrants. 0% 10 20 30 40 50 60 70 80 1 1 1 1 1 1 1 1 1 90 100% 1 1 Population in.......mu......... mill.......... .................... Institutions m i l l ....1..... Expenditures ■Ill.................................... ii.liiaiPP w n n m o k 10 2 0 30 40 50 60 70 80 North and West U]||||||||||||||||!|| South: White South: Negro E ^ H B i i ^90 100% 7 Sources: The Educational Directory, 1946-47, III, p. 7. 16th Census: 1940, Population, 2nd Series, U. S. Sum mary, p. 47. The Journal of Negro Education, Summer 1947, p. 468. Statistics of Higher Education, 1943-44, p. 70. * For further data see Charts at the end of Appendix. Vll It might be asked just how the South manages to sup port this dual system of education? The answer is self- evident : by means of segregation which has resulted in the practice of extensive discrimination as the above charts indicate. For example, if expenditures in the public insti tutions for Negroes were equalized on a per capita popu lation basis, an additional $19,000,000 would have to be spent for higher education alone. This would raise the present total expenditures 463%. Present Share Proper Share 6}i nyi 18?4 25 (in millions of dollars) Expenditures for Educational Purposes in Public and Private Colleges and Universities in the 17 States and the District of Columbia: 1943-44.® White Institutions Negro Institutions Expenditures: Total $150,622,000 $13,438,000 Private 65,033,000 8,149,000* Public 85,591,000 5,289,000 % of all money expended: Total 91.8% 8.2% Private 88.9% 11.1% Public 94.2% 5.8% Expenditure per student—• Total $479.46 $393.16 Expenditure per capita population: Total $4.28 $1.32 Public 2.42 .52 College Enrollment: Total 90% 10% * Negro private institutions carried about a 50% heavier lead in terms of expenditures than did private institutions for whites. 9 Adapted from Jenkins, Martin D., “ The Availability of Higher Education for Negroes in the Southern States,” The Journal of Negro Education, Op. Cit., pp. 466. V lll At present, the situation is such that Negro private insti tutions must carry an undue burden in the attempt to fur nish educational facilities and opportunities to those who would otherwise be deprived of advanced training. This process will continue until such time as the southern states realize that the “ equal but separate doctrine” is economi cally, and more important, educationally unsound. The following excerpt from the testimony offered by Dr. Mordecai W. Johnson, President of Howard University, speaks for itself:10 * In states which maintain the segregated system of education there are about $137,000,000 annually spent on higher education. Of this sum $126,541,795 (in cluding $86,000,000 of public funds) is spent on insti tutions for white youth only; from these institutions Negroes are rigidly excluded. Only $10,500,000 touches Negroes in any way; in fact, as far as state supported schools are concerned, less than $5,000,000 directly touches Negroes. . . . The amount of money spent on higher education by the state and federal government for Negroes within these states is less than the budget of the University of Louisiana (in fact only sixty-five per cent of the budget), which is maintained for a little over 1,000,000 people in Louis iana. That is one index; but the most serious index is this: that this little money is spread over so wide an area and in such a way that in no one of these states is there anything approaching a first-class university opportunity available to Negroes. In the face of such facts, the amount of money expended for education assumes extreme importance, becomes, indeed, so basic to the quality of said education in terms of faculty, physical plant, educational equipment and curricular scope, that it renders one as unwilling as he is unable to credit the 10 Johnson, Dr. Mordecai W., Hearings Before Subcommittee on Appropriations, House of Representatives, 80th Congress, February 24, 1947. IS claim made by the southern states that their separate schools are equal in all respects to those furnished for whites. O n t h e G r a d u a t e L e v e l A well-known educator recently wrote:12 “ The pro vision of higher and professional educational opportunities for Negroes is relatively little better today than fifteen years ago.” This statement is even more graphic when viewed contextually: it is mainly within the last fifteen years that higher and professional education and training have assumed their broad importance. In the present day and age of specialization and demand for technical skills, there is no institution in the South where a Negro may pursue work leading to a doctorate. The opportunities for whites are vastly different: doctorates are offered in a pub lic institution in each of the 17 states as well as in a private institution in 12 states and the District of Columbia. There are two accredited schools of medicine for Negroes in the South, but there are twenty-nine for whites. There are two accredited schools of pharmacy for Negroes in the South, but there are twenty for whites. There are two (one provisionally accredited) schools of law for Negroes in the South, but there are forty for whites. There is no accredited school of engineering for Negroes in the South, but there are thirty-six for whites. The chart on the following page demonstrates these facts graphically.13 12 Thompson, Charles H., The* Journal o f Negro Education, Howard University Press, Fall Issue, 1945, Vol. X IV , p. 267. 13 Educational Directory, 1946-7. The quote is from Higher Edu cation for American Democracy, Vol. I, p. 36, Op. Cit. X Four Year Institutions Supported at Public Expense, Offering Training in Specified Fields with Departments Accredited by Their Respective Professional Association: 1946-7.14 W h ite : Law Medicine Dentistry Engineering Pharmacy Alabama 1 2 1 Arkansas 1 1 1 Delaware 1 D. C. 1: Florida 1 1 1 Georgia 1 1 1 1 Kentucky 2 1 i 2 Louisiana 1 1 1 Maryland 1 1 i 1 1 Mississippi 1 1 1 1 Missouri 1 1 (2 yr. course) 1 N. Carolina 1 1 (2 yr. course) 1 1 Oklahoma 1 1 2 1 S. Carolina 1 1 3 2 Tennessee 1 1 i 1 1 Texas 1 1 i * 3 1 Virginia 2 2 i 3 1 West Virginia 1 1 (2 yr. course) 1 1 T o t a l : 18 15 5 26 13 14 Source: Educational Directory, Part 3, Colleges and Universities, U. S. Office o f Education, 1947. * Provisionally accredited, or accredited with some reservation, or admitted on probation. XI Negro: Law Medicine Alabama Arkansas Delaware D. C. 1 Florida Georgia Kentucky Louisiana Maryland Mississippi Missouri 1 * N. Carolina Oklahoma S. Carolina Tennessee Texas Virginia West Virginia T o ta l : 2 1 Dentistry 14a Pharmacy 1 1 1 1 0 2 14a Source: Educational Directory, Part 3, Colleges and Universities, U. S. Office of Education, 1947. Accrediting A ssociations : Law: The American Bar Association Medicine: The American Medical Association Dentistry: The Council on Dental Education of the American Dental Association Engineering: The Engineers’ Council for Professional Development Pharmacy: The American Council on Pharmaceutical Education, Inc. X ll The paucity of institutions offering opportunities for Negroes to pursue graduate and professional work in the South, coupled with the quota * system of Northern colleges and universities, has resulted in a serious curtailment of the number of highly-skilled Negro physicians, lawyers, engineers, etc. In 1940 there was one skilled Negro and white out of the following number of the South’s Negro and white population, respectively: 16 Profession Doctors: Lawyers: Dentists: (male) Engineers: (male) Pharmacists: (male) White Negro 843 4,891 702 27,730 2,589 13,425 655 142,944 1,711 25,246 * The President’s Commission on Higher Education comments: “ The Quota System. At the college level a different form of discrimination is commonly practiced. Many colleges and uni versities, especially in their professional schools, maintain a se lective quota system for admission, under which the chance to learn, and thereby to become more useful citizens, is denied to certain minorities, particularly to Negroes and Jews. “ This practice is a violation of a major American principle and is contributing to the growing tension in one of the crucial areas of our democracy. “ The quota, or numerous clausus, is certainly un-American. . . . “ The quota system denies the basic American belief that intelli gence and ability are present in all ethnic groups, that men of all religious and racial origins should have equal opportunity to fit themselves for contributing to the common life. “ Moreover, since the quota system is never applied to all groups in the Nation’s population, but only to certain ones, we are forced to conclude that the arguments advanced to justify it are nothing more than rationalizations to cover either convenience or the disposition to discriminate. The quota system cannot be justified on any grounds compatible with democratic principles.” Higher Education for American Democracy, A Report of the President’s Commission on Higher Education, Government Printing Office, Washington, D. C., December, 1947, p. 35. 10 16th Census; 1940, Population, Lctbor Force. X lll These are the results of segregated education. Broken down by individual states, the figures show up in even sharper relief (see Appendix Chart V for this data). The implications of the figures presented above are ex tremely serious. The fallacy that Negroes are not desirous or capable of absorbing and utilizing specialized training has often been voiced by people from all parts of our nation. The findings of such sciences as anthropology, sociology, and psychology, however, refute these arguments. The fact is that the opportunities for Negroes are too limited and too few, in these and other fields as well. As a southern educator has recently phrased it: “ They don’t teach us what they blame us for not knowing. ” 16 That Negroes want the benefits of more and better education is evidenced by recent court cases, by the great increase in enrollments in Negro institutions, and by reports from the schools them selves. Howard University for the present school year stated that the total enrollment was over 7,000. The medical school which can accommodate 70 freshmen had to turn down 1,180 ably qualified applicants. The pharmacy and dentistry schools which can each accommodate 50 had over 700 and 500 applicants, respectively.17 And Howard, it must be remembered, is the only public institution in the South where Negroes can get professional training in these fields. These conditions would seem to apply to other schools as well.* However, the case for the extension of equal educa tion for the Negro rests only in part upon his equal educability. The basic social fact is that in a democ 1(5 Quoted in Fred H. Hechinger’s column, The Washington Post, March 7, 1948. 17 The Crisis, November, 1947, p. 324. *85% of all Negro doctors and 90% of all Negro dentists are trained at Howard and Meharry, report Henry and Katherine Pringle, “ The Color Line in Medicine,” The Saturday Evening Post, January 24, 1948. XIV racy his status as a citizen should assure him equal access to educational opportunity.18 E d u c a t io n a l , O p p o r t u n it y Dr. Charles H. Thompson, Dean of the Howard Grad uate School, reviewing the limited number of trained Negro professionals, remarks: 19 Whatever other inferences may be drawn from the facts . . . one of the most important and inevitable conclusions is that Negroes in the separate school systems of the 17 states and the District of Columbia which require racial segregation have been the vic tims of gross discrimination in the provision of edu cational opportunities. On the whole Negroes have had only about one-fourth the educational oppor tunity afforded to whites in the same school systems, as indicated by the product turned out. White Negro The following quote demonstrates some of the results of the conditions described above: In the 17 states and the District of Columbia the median years of schooling for the white population was 8.4; for Negroes the median was 5.1; with a range for the whites running from 7.9 in Kentucky to 12.1 in the District of Columbia; and for Negroes from 3.9 in Louisiana to 7.6 in the District of Columbia. Some 13.2% of the white population had completed 4 years of high school as compared with only 2.9% of the Negroes; 12.1% of the whites had had some 18 Higher Education for American Democracy, Op. Cit., Vol. II, p. 30. 19 Thompson, Charles II., The Journal o f Negro Education, Howard University Press, Vol. X V I, Summer, 1947, p. 265. XV college education, as compared with only 2.5% of the Negroes; and 4.7% of the white population had had 4 or more years of college as contrasted with only 1.1% of the Negroes. There were, therefore, 4 times as many whites as Negroes with a high school or college education in these states which require racial segregation by law.20 Although it is on the higher and professional levels of education that the inequities resulting from a segregated system can best be demonstrated, there are some differ entials in the indices of education which show up most graphically in the lower or primary levels. The following pages will demonstrate some of these differentials. Inequities in Lower or Primary Education T h e T a x -P a y e b ’s D o lla r $0 25I I I I I I I White Negro $o 2'5 1 1 50 75 100! I 1 1 I I I I I I I 50 1 I I I I I 75 100 The tax-payer’s dollar for public education in the South is divided between the schools for white children and the schools for Negro children. The average expense per white pupil in ten southern states in 1944-5 was 189% greater than the average expense per Negro pupil. Specifically, the tax-payer paid $88.70 to educate his white citizens and only $46.95 to educate his Negro citizens. 20 Thompson, Op. Cit., p. 264. XVI A v e r a g e E x p e n d it u r e P e r P u p il in A v er a g e D a il y A t t e n d a n c e : 1944-521 State White Negro % White is Greater Alabama $68.07 $27.62 246% Arkansas $59.63 $27.22 219% D. C. (1947) $160.21 $126.52 127% Florida $108.02 $54.88 197% Georgia $88.13 $27.88 316% Louisiana $113.30 $34.06 333% Maryland $78.00 $69.00 113% Mississippi * $45.79 $10.10 453% North Carolina $74.86 $59.26 126% South Carolina $90.00 $33.00 273% A v e r a g e : $88.70 $46.95 189% * Per pupil enrolled. The value of school property in 8 southern states * in 1944-5 amounted in all to $867,960,280.21 22 Distributed, it looks like this: (in millions of dollars) $0 100 200 300 400 500 600 700 800 900 1000 On a per capita basis of enrolled students, the picture looks like this: Negro child Js 50 75 100 125 150 175 200 225 250 In other words, 427.6% more was invested for each white pupil than for each Negro pupil. 150 21 The Journal o f Negro Education, Ploward University Press, Vol. X V I, Summer, 1947, passim. * The eight states: Ala., Fla., Ga., Md., Miss., N. C., S. C., Tex. 22 Washington, Alethea H., The Journal o f Negro Education, Howard University Press, Summer Issue, Vol. X V I, 1947, p. 446. XVII A v e b a g e V a l u e o e S c h o o l P r o p e r t y P e r P u p il E n r o l l e d : 1944-523 State White Negro % White is Greater Alabama $143.00 $29.00 493% Arkansas ## $142.87 $42.59 335% Florida $284.11 $59.76 475% Georgia $160.00 $35.00 457% Louisiana ** $281.97 $50.29 561% Maryland ** $364.06 $163.69 222% North Carolina $203.80 $73.08 279% South Carolina $204.00 $40.00 510% Texas $230.25 $76.79 300% Virginia ** $221.51 $85.54 259% ** Data for these states is for 1943-4. T e a c h e r s ’ S a l a r ie s $0 200 400 600 800 1000 1200 1400 1600 1800I I I I I I I I I I White Negro $0 I 400 I 600 I ! I I I 1 800 1000 1200 1400 1600 1800 2000 I 2000 The amount of salary paid teachers is an important factor in securing and holding capable teachers. In 1944-5 average salaries for teachers in the South were $1,513.57 for whites and $1,187.28 for Negroes.* * The differential in the average for whites and Negroes amounted to $326.29, or phrased differently, the average salary per white was 127.5% greater than that per Negro. 23 The Journal of Negro Education, Summer, 1947, passim, and Statistics of State School Systems, 1943-44. * The salary paid Negroes in 1944-5 is lower than the average salary paid to all teachers in the United States in 1933-34. XV111 A ver a g e A n n u a l T ea c h er s S a la r ie s : 1944-45 24 State White Negro % White is Greater Alabama $1,185.50 $ 784.50 158% Arkansas 1,020.00 624.00 163% Delaware 1,953.00 1,814.00 108% Florida 1,757.07 1,174.34 150% Georgia 1,130.00 540.00 209% Kentucky 1,085.00 (medians) 1,225.00 Louisiana 1,683.33 810.98 208% Maryland ** 2,085.00 2,002.00 104% Mississippi 1,018.01 407.81 250% Missouri 1,239.00 1,519.00 North Carolina 1,294.50 1,305.59 Oklahoma ** 1,428.00 1,438.23 South Carolina 1,314.00 785.50 167% Tennessee 1,147.36 1,087.88 105% Texas 1,627.00 1,136.00 143% Virginia ** 1,364.00 1,129.00 121% West Virginia D. C. 3,400.00 3,400.00 A v e r a g e : 1,513.57 1,187.28 127.5% ** Data for these states is from Statistics o f State School Systems, 1943-44. n.b. K y .: Heavy concentration o f Negro teachers in wealthier city districts accounts for higher salaries. M o .: Most Negro teachers are in the 2 largest cities where both groups are paid higher salaries than elsewhere in the state. N. C .: Both groups are paid by the same salary schedule. Negroes are either better trained or have greater employment stability. Tenn.: Negroes had .39 more college years of training. D. C .: These salaries are estimates. Salary range is from $3,150-3,750. Negro students, as reported for 1943-44, received only $1,349,834 (10 states reporting) out of a total of $43,448,777 spent by these states to take their children to and from school. Negro students, who in that same year comprised 25% of the school population in the South, received only 3.1% of all funds spent for transportation purposes. 24 24 The Journal o f Negro Education, Howard University Press, Vol. X V I, Summer, 1947, passim. 25 50 % of school population % of funds for transportation o%I j j p 0% 25 50 Whereas $6.11 is spent on an average per white child, only $.59 is similarly spent on each Negro child.25 26 This means that even when the schools exist, Negro children encounter far greater difficulties in reaching them. T ransportation E xpen d itu re : 1943-4426 State White Negro White Neqro (total) (total) (per capita enrolled student) Alabama $ 2,520,102 $ 179,927 $ 6.09 $ .79 Arkansas 1,508,979 107,083 5.01 1.07 Delaware 311,064 9.05 D. C. 15,271 .28 Florida 1,589,182 106,168 6.18 1.08 Georgia 2,777,531 71,523 6.52 .28 Kentucky 1,961,947 4.02 Louisiana 3,389,131 12.58 Maryland 1,370,715 231,846 6.10 3.91 Mississippi 3,170,384 60,000 11.52 .22 Missouri 4,270,391 7.31 North Carolina 2,304,334 392,157 4.05 1.53 Oklahoma 2,464,424 192,449 5.77 5.28 South Carolina 1,410,421 8,681 5.66 .04 Tennessee 2,050,277 4.07 Texas 5,888,904 397,663 5.64 1.99 V irginia 2,702,596 6.89 West Virgina 1,995,627 5.20 T o t a l : $42,098,943 $1,349,834 $ 6.11 $ .59 The pattern of inequities resulting from segregation is uniform throughout the seventeen southern states and the 25 Statistics of State School Systems, Government Printing Office. Wash., D. G , 1943-44. 26 Ibid. XX District of Columbia. In order to demonstrate briefly that these conditions pertain in Texas, a few data are included to show the inequities in the lower and higher levels of education. E d u c a t io n a l F a c il it ie s in t h e S t a t e o e T e x a s Despite the fact that petitioner’s State of Texas is a relatively wealthy state, the white median distribution of state-supported Negro classrooms is 200% greater than the Negro median.27 If as much money was spent on the aver age Negro classroom unit as there was for whites, Texas would have to spend an additional $5,320,000 on its 7,600 Negro units. The military rejection rates for failure to pass m inim um “ intelligence” standards in the war period of June-July 1943 showed great differentials between the rates for whites and Negroes. In Texas 10.4% of whites were rejected for this reason, while the comparative figure for Negroes was 20.5% .28 In 1940 the functional illiteracy in the State of Texas was 16% for whites, but 36.4% for Negroes. Simi larly, Texas spent $92.69 in 1947 to educate each white child, but only $63.12 to educate each Negro child.29 30 Money in vested in school property shows a similar pattern; Texas in 1944 invested $230.25 for each white child and $76.79 for each Negro child.80 The length of a school term is another index for good educational standards. In 1943-44 the average school term for Negroes in Texas was 7.7 days shorter for Negroes than it was for whites. (This is one-third of a school month. ) 31 27 Norton, John K., and Lawler, Eugene S., An Inventory of Public School Expenditures in the United States, Vol. I, pp. 91, 97. 28 The Black and White o f Rejections for Military Service,. Ameri can Teachers Associations Studies, 1944, p. 6. 29 The Negro Yearbook, 1947, Tuskegee Institute, p. 76. 30 Statistics o f State School Systems, Government Printing Office, Wash., D. C., 1943-44. 31 Ibid. XXI A one-teacher, one-room type of school is ordinarily not the optimum condition under which to study. In Texas 68% of the schools for whites were of this type, hut the figure for the Negro child was 81%. The amount of money spent for school transportation for each white child was $5.64, whereas only $1.99 was spent for each Negro child. The present state of higher education in Texas follows the same patterns of discrimination established on the lower levels. Certain examples typify how state and federal funds allocated for the purpose of higher education are dis proportionately channeled into the institutions for whites only. 1. In Texas, the highest salary paid a full professor at Prairie View University (Negro) is lower than the salary paid (one exception) in any of the 13 other public institutions for whites.32 2. Texas: “ Public institutions for Negroes do not have as many students enrolled as the private institutions. Only 39.8 per cent of all Negro students enrolled in Texas colleges in 1929 were attending public institutions. This fig ure increased to 45.2 per cent in 1944. As far as enrollment is concerned, the burden of higher learning for Negroes is actually being carried for Texas by the Negro private col lege. . . . Five public and two private colleges offer courses in engineering for white stud ents. There is no engineering course for Negro students in Texas. One public and one private college offer medicine to white students. There is no medical school for Negro students in Texas. With the exception of teacher-training, nursing, and Divinity, no professional training is available to Negroes within the state. ’ ’ 33 32 See testimony of Dr. Charles H. Thompson in Record o f this case, p. 262. 33 The Journdl o f Negro Education, Summer, 1947, p. 431. XXII Petitioner has submitted this appendix in order to show a factual picture of the inequities which have and do result under a segregated system of education. This picture, as well as the general pattern of segregation, leads us to agree with this statement from the Report of the President’s Com mission on Higher Education: “ We have proclaimed our faith in education as a means of equalizing the conditions of men. But there is grave danger that our present policy will make it an instrument for creating the very inequalities it was designed to prevent. If the ladder of educa tional opportunity rises high at the doors of some youth and scarcely rises at all at the doors of others, while at the same time formal education is made a prerequisite to occupational and social advance, then education may become the means, not of eliminating race and class distinctions, but of deepening and solidifying them. “ It is obvious, then, that free and universal access to education, in terms of the interest, ability, and need of the student, must be a major goal in Amer ican education. ’ ’ 34 34 Higher Education for American Democracy, A Report of the President’s Commission on Higher Education, Government Printing Office, Washington, D. C., December, 1947, Vol. I, p. 36. XX111 Public Institutions of Higher Education: Texas, 1945-46 Appendix Chart I Prairie View W kite (N egro ) 85.7% 14.3% 15 2 88.2% 11.8% % of population Number of institutions * % of institutions Value of plant & equipment ** Value per capita population Total expenditures Expenditure per capita population State & Federal appropriation Appropriation per capita population Total Current income Library expense per year Number of faculty *** Total salaries Average salary Number of students *** % of all students in public institutions $72,790,097 $4,170,910 $12.88 $4.71 $32,007,219 $871,678 $5.85 $.94 $17,712,820 $297,318 $3.23 $.32 $33,912,086 $914,141 $577,093 $19,720 1,133 (av. 178) 118 $8,504,031 $253,133 $3,987 $2,145 43,040 1,576 96.5% 3.5% * Unless otherwise indicated these figures are based on 13 insti tutions for whites and one for Negroes. Data for the others is not available (Thompson). ** The figure for whites is based on only 11 institutions. *** The figures for whites are based on 12 institutions. Data is from reports from the U. S. Office of Education, Form SRS-21.0-46, Parts I and II. Appendix Chart II Total Institutions of Higher Learning North & West South Total Negro White % of total U. S. population 65.5% 34.5% 7.7% 26.7% Total number of institutions 1066 634 104 530 % of all institutions 64.7% 37.3% 6.1% 31.2% 1 institution per every .............. population 80,978.0 71,524.9 97,586.6 66,410.9 Total expenditures * $573,074,370 $164,060,000 $13,438,000 $150,622,000 % of total expenditures 77.7% 22.3% 1.8% 20.5% Expenditure per capita population $6.66 $3.61 $1.32 $4.28 Average expenditure per institution $537,593 $258,770 $129,212 $284,192 % o f total population with 4 or more years of college ** 2.9% 2.0% 0.1% 1.9% % of respective population 0.5% 2.5% Sources: The Educational Directory, 1946-47, III, p. 7. 16th Census: 1940, Population, 2nd Series, U. S. Summary, p. 47. The Journal of Negro Education, Summer 1947, p. 468. Statistics o f Higher Educdtion, 1943-44, p. 70. * Since the expenditures for 137 institutions (56 in the South, 81 in the North and West) were not reported, we made an average of those reporting per insti tution ($443,608.45), making an additional $59,404,358 thereby changing the total to $737,134,370 spent on higher education in the United States in 1943-44. ** Percent for the country as a whole is 2.6%. X X V Appendix Chart III Length of School Term: 1943-44 State White Negro Alabama 169.6 166.1 Arkansas 165.3 141.8 Delaware 181.5 181.7 D. C. 175.0 177.0 Florida 172.4 168.2 Georgia 175.3 165.0 Kentucky 159.2 171.6 Louisiana 180.0 156.7 Maryland 186.7 186.5 Mississippi 165.5 130.0 Missouri 182.4 193.9 North Carolina 179.9 179.9 Oklahoma 169.0 175.8 South Carolina 176.0 160.4 Tennessee 166.7 169.0 Texas 173.9 166.2 Virginia 180.0 180.0 West Virginia 172.1 173.7 A v e r a g e : TJ. S. A v e r a g e : 173.5 175.5 164.0 Statistics o f State School Systems, 1943-44, Federal Security Agency, U. S. Office of Education. X X V I Rejection Rates for Failure to Meet Minimum “Intelligence” Standards June-July, 1943: The South Appendix Chart IV State Alabama Arkansas Delaware * D. C. Florida Georgia Kentucky Louisiana Maryland Mississippi Missouri North Carolina Oklahoma South Carolina Tennessee Texas Virginia Wes" Virginia i'W 8a*cv r*w 'V K.hr .xut AvAV' s Assec.<Jtcetf. * i sss -v.o AV ng‘S£ Per Cent Rejected White Negro 8.5 25.8 9.8 31.1 0.6 9.0 3.4 19.6 8.2 27.4 6.1 5.4 6.0 30.6 2.0 21.7 5.0 31.1 2.1 10.4 10.7 16.3 3.9 16.1 8.7 43.0 5.6 9.5 10.4 20.5 8.4 4.7 X .H xr m . x ' ~.t S i iih try S sm a r Amen- ittnsc ins neriaK. Appendix Chart V Ratio of Professionals to Population by Race: The South, 1940 D octors D entists L awyers E ngineers P harmacists W N W N W N W N W N Alabama 1,050 10,034 3,279 25,876 1,133 245,823 860 245,823 2,217 54,627 Arkansas 913 13,657 4,177 36,418 954 122,911 1,396 491,645 2,119 140,470 Delaware 714 4,485 2,305 7,175 941 17,938 218 2,022 4,485 D. C. 308 955 1,113 2,881 100 2,497 151 15,606 651 4,355 Florida 704 5,843 2,050 13,185 507 51,420 637 1,116 20,568 Georgia 850 6,955 2,651 21,699 760 135,616 802 216,985 1,625 49,315 Kentucky 1,070 2,326 3,458 7,380 997 10,192 1,181 71,344 2,626 14,269 Louisiana 686 9,132 2,043 23,314 796 141,551 555 141,551 1,492 24,266 Maryland 536 2,876 1,816 10,411 431 9,435 334 50,322 1,317 21,567 Mississippi 864 19,538 2,837 37,054 850 358,193 682 268,645 1,740 9 7 ,6 8 9 Missouri 733 1,228 1,588 5,200 661 6,789 616 34,912 1,466 9 ,3 9 9 N. Carolina 1,063 5,911 3,581 16,637 1,061 36,337 1,297 490,649 2,200 30,666 Oklahoma 976 2,156 2,931 8,850 643 6,726 658 28,025 1,669 8,007 S. Carolina 910 11,467 3,410 20,354 938 162,833 905 814,164 1,467 50,885 T ennessee 958 2,292 3,175 6,875 912 31,796 779 254,368 2,035 14,963 Texas 901 5,637 2,882 11,412 709 40,191 592 154,065 1,559 28,887 Virginia 818 3,985 2,604 10,499 636 13,780 551 165,362 1,705 20,044 W. Virginia 1,059 2,560 3,147 4,528 1,230 6,927 742 117,754 3,366 11,775 Total South Number 41,762 2,075 13,596 756 50,107 366 53,763 71 20,572 402 Ratio 843 4,891 2,589 13,425 702 27,730 655 142,944 1,711 25,246 Source: U. S. Census, Population, Labor Force, 1940. TT AX X XXV111 Appendix Chart VI Rejections of White Registrants in 7 Southern States and Negro Registrants in 10 Northern and Border States Due to Failure to Meet Minimum “Intelligence” Standards, 1943 New York City Illinois............ Massachusetts M ichigan........ Indiana .......... West Virginia . Ohio ............ Kentucky ___ California Pennsylvania Georgia........ Virginia Alabama So ' V o.! -sus Texas North vV- tv (Selective Service Data) ■X V V' "X 'V '.X ; \ W - V V s X X x O .X » ''S -v . •-.rtrcic IN TH E Supreme Court of the United States October Term, 1949 No. 44 HE MAN MARION SWEATT, vs. Petitioner, THEOPHILUS SHICKEL PAINTER, ET AL. BRIEF FOR PETITIONER. R o b er t L. C a r t e r , W . J. D u r h a m , W il l ia m R. M in g , Jr., J a m es M . N a b e it , T h u eg o o d M a r s h a l l , Attorneys for Petitioner. U . S im p s o n T a t e , F r a n k l in H . W il l ia m s , Of Counsel. A n n e t t e H . P e y s e r , Research Consultant. I N D E X Opinions Below ____________ PAGE 1 Jurisdiction ____________ 9 Statement of the Case___________ _______ 2 Statement of Facts ___________ A Errors Relied Upon_______________ o Summary of Argument____________ Argument: I—The State of Texas is forbidden by the equal pro tection clause of the Fourteenth Amendment to the United States Constitution to deny peti tioner’s admission to the University of Texas solely because of considerations of race and color 8 A. In making admission to the University of Texas School of Law dependent upon appli cant’s race or color, Texas has adopted a classification wholly lacking in any rational foundation. Therefore, it is invalid under the equal protection clause ____________________ 9 1. There is no valid basis for the justification of racial segregation in the field of educa tion. Enforced racial segregation aborts and frustrates the basic purposes and ob jectives of public education in a democratic society ________________________________ 12 2. Racial segregation cannot be justified as essential to the preservation of peace and good order_____________________________ 22 3. There is no rational basis for a legislative assumption that different races have dif ferent intellectual potentialities and should therefore be educated in separate schools 24 11 4. State ordained segregation is a particu larly invidious policy which, needlessly pen alizes Negroes, demoralizes whites and tends to disrupt our democratic institutions 26 B. Under the test applicable to governmental action based upon race and color a denial of admission to the University of Texas to peti tioner is a clear and unwarranted deprivation of constitutional rights ____________________ 31 C. The fact that states other than Texas require that racially segregated educational facilities be maintained should not influence this Court’s interpretation of the equal protection clause 35 II—The decision of the court below improperly ap plies the equal protection clause of the Fourteenth PAGE Amendment__________________________________ 41 A. The Fourteenth Amendment was intended to protect Negroes against discriminatory state action ____________________________________ 41 B. Respondents contend that racial segregation in conformity to the requirements of the ‘ ‘ sep arate but equal” doctrine affords equal pro tection ___________________________________ 42 C. The problem with which Plessy v. Ferguson dealt is fundamentally different from the problem presented here, and that case cannot help this Court in making a proper determina tion of petitioner’s complaint_______________ 44 D. This is not an appropriate case for the applica tion of the doctrine of stare decisis ________ 46 III—If this Court considers Plessy v. Ferguson ap plicable here, that case should now be reexamined and overruled________________________________ 52 A. The Plessy v. Ferguson Court did not properly construe the intent of the framers of the Four teenth Amendment ________________________ 52 Ill 1. The Court improperly construed the Four teenth Amendment as incorporating a doc trine antecedent to its passage and a doc trine which the Fourteenth Amendment had repudiated_____________________________ 52 2. The framers of the Fourteenth Amendment and of the contemporaneous civil rights statutes expressly rejected the constitu tional validity of the “ separate but equal” doctrine _______________________________ 54 B. Even comparative physical equality is not pos sible under a system of enforced segregation 62 IV—This record discloses the inevitability of discrim ination under the “ separate but equal” formula 67 A. Negro and white college and graduate school PAGE facilities in Texas_________________________ 67 1. Physical Facilities __________________ 67 2. Current Expenditures __________________ 68 3. Curriculum ____________________________ 68 4. Faculty _______________________________ 69 5. Library _______________________________ 70 6. Standing in the educational world and community ____________________________ 70 B. The two law schools compared_____________ 71 1. Physical plant _________________________ 71 2. Library ______ 72 3. Faculty _______ .1______________________ 72 4. Student body __________________________ 73 Conclusion________________________________________ 75 IV Table of Cases PAGE Acheson v. Murakami, 176 F. 2d 953 (C. C. A. 9th 1949)- 33 Adamson v. California, 332 U. S. 46__«L_____________ 36 Bailey v. Alabama, 219 U. S. 219____________________ 34 Bain Peanut Co. v. Pinson, 282 U. S. 499_____________ 10 Baskin v. Brown, 174 F. 2d 391 (C. C. A. 4th 1949)__ 40 Berea College v. Kentucky, 211 U. S. 45____________43,48 Board of Tax Commissioners v. Jackson, 283 U. S. 527- 10 Bob-Lo Excursion Co. v. Michigan, 333 IT. S. 28____ 45, 47 Bridges v. California, 314 IT. S. 252 _______________ ___ 23 Buchanan v. Warley, 245 IT. S. 60_______________23, 25, 66 Cantwell v. Connecticut, 310 IT. 8 . 296 _______________ 23 Chesapeake & Ohio By. v. Kentucky, 179 IT. S. 388 ___ 43, 47 Chiles v. Chesapeake & Ohio By., 218 IT. S. 71_______ 43,47 Church of the Holy Trinity v. United States, 143 U. 8 . 457____________________________________________ 54 Clark v. Kansas City, 176 U. 8 . 114_______________ 10 Collins v. Oklahoma State Hospital, 76 Okla, 229, 184 P. 946_____________________________________________ 20 Continental Baking Co. v. Woodring, 286 U. S. 352 ___ 10 Connolly v. Union Sewer Pipe Co., 184 U. 8 . 540______ 9 Cory v. Carter, 48 Ind. 337 __________ ______________ 52 Cummings v. Board of Education, 175 U. 8 . 528 ____ 43,47 Davis v. Meyer, 115 Nebr. 251, 212, N. W. 435_________ 20 Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949), cert. den. 336 U. S. 993 _______________________________ 40 Dawson v. Lee, 83 Ky. 4 9 __________________________ 52 Dominion Hotel v. Arizona, 249 U. S. 265 ____________ 10 Ex parte Endo, 323 U. S. 283 _______________________ 37 Fisher v. Hurst, 333 U. S. 147_________________ _ 43, 51 Flood v. Evening Post Publishing Co., 71 S. C. 122, 50 S. E. 641 20 Flood v. News and Courier Co., 71 S. C. 112, 50 8 . E. 637____________________________________________ 20 Gong Lum v. Bice, 275 U. S. 78_________________43, 49, 50 Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412____________________________________________ 10 V PAGE Groessart v. Cleary, 335 U. S. 464___________________ 11 Hague v. C. I. 0., 307 U. 8 . 496______________________ 12 Hall v. DeCuir, 95 U. S. 485 _______________________43, 47 Hamilton v. Board of Regents, 293 U. S. 245 ________ 48 Henderson v. United States, Oct. Term 1949 No. 25 „__45, 47 Hirabayashi v. United States, 320 H. S. 81___ 32, 33, 37, 66 Illinois ex rel. McCollum v. Board of Education, 333 H. S. 203 ______________________________________ 16 Independent School District v. Salvatierra (Tex. Civ. App.), 33 S. W. 2d 790 _____________________ ___ . 25 In re Oliver, 333 U. S. 257 __ -______________________ 36 Kenworthy v. Brown, 92 N. Y. S. 34 ________________ 20 Korematsu v. United States, 323 U. S. 214___ 20, 32, 33, 37 Kotch v. Board of River Port Pilot Commissioners, 330 U. S. 552 -------------------------------------------------------- 11, 35 Kovacs v. Cooper, 336 U. S. 77 ____________________ 34 Lehew v. Brummell, 103 Mo. 546 ____________________ 52 Lincoln Federal Labor Union v. Northwestern Iron and Metal Company, 335 U. S. 525 _________________ 37,40 Lindsley v. Natural Carbonic Has Co., 220 U. S. 61___ 11 Lovell v. Griffin, 303 U. S. 444:______________________ 12 Marsh v. Alabama, 326 U. S. 501__________________ 34 Maxwell v. Bugbee, 250 U. S. 525 __________________ 9,10 Mayflower Farms v. Ten Eyck, 297 U. S. 266 ________ 11 McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 151_____ 43,47 Metropolitan Casualty Insurance Co. v. Brownell, 294 U. S. 580 ______________________________________ 10 Minerva Delgado v. Bastro Independent School Dis trict (dec. June 1948, U. S. Dist. Ct. for W. Dist. of Tex. not officially reported) ____________________ 25 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 __„43, 50, 65 Morgan v. Virginia, 328 U. S. 373 ______________ 23, 45,47 Morris v. State, 109 Ark. 530, 160 S. W. 387 __________ 20 Nebbia v. New York, 291 U. S. 502 __________________ 36 Norris v. Alabama, 294 U. S. 587 ___________________ 34 Oyama v. California, 332 U. S. 633 .33, 34, 39, 62, 66 V I PAGE Palko v. Connecticut, 302 U. 8 . 319___________________ 36 Patsone v. Pennsylvania, 232 IT. 8 . 138_______________ 10 People v. Gallagher, 93 N. Y. 438____________________ 52 Pierre v. Louisiana, 306 U. S. 354____________________ 34 Plessy v. Ferguson, 163 U. S. 537______7, 8, 20,44,45,46, 50, 51, 52, 53, 54, 56, 58, 61, 62, 66 Puget Sound Power & Light Co. v. Seattle, 291 IT. S. 619 ___________________________________________ 10 Quaker City Cab Co. v. Pennsylvania, 277 IJ. S. 389__ 11 Queenside Hills Co. v. Saxl, 328 IT. 8 . 80______________ 11 Railway Mail Assn. v. Corsi, 326 IT. S. 88_____________ 41 Rice v. Elmore, 165 F. 2d 387 (C. C. A. 4th 1947), cert. den. 333 U. 8 . 875 ______________________________ 40 Rice v. Gong Lum, 139 Miss. 760,104 So. 105__________ 19 Roberts v. Boston, 5 Cush. (Mass.) 198 (1849)___ 52, 53, 58 Schneider v. State, 308 U. S. 147____________________12,23 Scott v. Sandford, 19 How. 393______________________ 53 Shelley v. Kraemer, 334 U. S. 1_______________23, 33, 39, 66 Sipuel v. Board of Regents, 332 H. S. 631________43, 51, 66 Skinner v. Oklahoma, 316 H. S. 535_________________11, 25 Smith v. Allwright, 321 U. S. 649____________________ 40 Smith v. Cahoon, 283 H. S. 553______________________ 11 Smith v. Texas, 311 H. S. 128________________________ 34 Southern Railway Co. v. Greene, 216 H. S. 400________ 9,11 Spencer v. Looney, 116 Ya. 767, 82 S. E. 745__________ 20 Sportono v. Fourichon, 40 La. Ann. 423, 4 So. 71______ 20 State, Games v. McCann, 21 Ohio St. 210____________52, 58 Steele v. Louisville & N. R. Co., 323 U. S. 192__________ 33 Strauder v. West Virginia, 100 H. S. 303__________9, 41, 53 Takahashi v. Fish & Game Commission, 334 H. S. 410 ------------------------------------------------------------ 33,39,66 Thornhill v. Alabama, 310 U. S. 88__________________23, 39 Truax v. Raich, 239 H. S. 33_________________________ 11 Tunstall v. Brotherhood of Locomotive Firemen & En- ginemen, 323 H. S. 210___________________________ 33 Upton v. Times Democrat Publishing Co., 104 La. 141, 28 So. 970 _____________________________________ 20 United States v. American Trucking Assn., 310 U. S. 534 ___________________________________________ 40 United States v. Carotene Products Co., 304 U. S. 144__31, 41 Ward v. Flood, 48 Cal. 36___________________________ 52 Westminster School Dist. v. Mendez, 161 F. 2d 774 (C. C. A. 9th 1947) _______________________________ 25 West Virginia State Board of Education v. Barnette, 319 U. S. 624 __________________________________ 34 Whitney v. California, 274 U. S. 357_______________12, 23 Yick Wo v. Hopkins, 118 U. S. 356_____________ _____ 65 State Constitutions and Statutes Ala. Const., Art. XIV, Sec. 256, Ala. Code, tit. 52, Sec. 93 (1940) _________________________________ 35 Ark. Dig. Stat., Sec. 11535(c) (Pope, 1937) _________ 35 Del. Const., Art. X, Sec. 2, Del. Bev. Code, c. 71, Sec. 2631 (1935) ______ 35 Fla. Const., Art. XII, Sec. 12, Fla. Stat. Ann., Sec. 228.09 (1943) ._____ ...___________________________ 35 Ga. Const., Art. VIII, Sec. 1, Ga. Code Ann., tit. 32, Sec. 937 (Supp., 1947) ________________________ 35 Ky. Const., Sec. 187, Ky. Bev. Stat. Ann., Sec. 158.020 (Baldwin, 1943) ___ _________________-__________ 35 La. Const., Art. XII, Sec. 1 _____________________ ______ 35 Md. Code Ann., Art. 77, c. 18, Sec. 192 (Flack, 1939)__ 35 Miss. Const., Art. VIII, Sec. 207, Miss. Code Ann., Sec. 6276 (1942) ___________________________________ 35 Mo. Const., Art. XI, Sec. 3, Mo. Bev. Stat. Ann., Sec. 10349 (1943) _____ 36 N. C. Const., Art. IX, Sec. 2, N. C. Gen. Stat., Sec. 115-2 (1943) _______________________________ -___ 36 Okla. Const., Art. 1, Sec. 5, Okla. Stat., tit. 70, Sec. 455 (as amended Laws 1949, Art. 20, Sec. 9) ------------- 36 V ll PAGE V l l l PAGE S. C. Const., Art. XI, Sec. 7, S. C. Code, Sec. 5377 (1942)_________________ 36 Tenn. Const., Art. XI, Sec. 12, Tenn. Code Ann., Sec. 2377 (Williams, 1934) ______________ -___________ 36 Tex. Const., Art, VII, Sec. 7, Tex. Rev. Stat., tit. 49, art. 2900 (Vernon, 1942) _______________________ 36 Va. Conn., Art, IX, Sec. 140, Va. Code Ann., tit. 11, c. 33, Sec. 680 (1942) __________________________ 36 W. Va. Const., Art. XII, Sec. 8, W. Va. Code Ann., Sec. 1775 (1949) _________ - __________________________ 36 Other Authorities American Teachers Assn., The Black & White of Re jections for Military Service (1944) _____________18, 24 Argument of Charles Sumner, Esq., Against the Con stitutionality of Colored Schools in the case of Sarah C. Roberts v. Boston -------------------------------- 21 Baruch, Glass House of Prejudice (1946) ------------— 29 Bettleheim and Janowitz, Dynamics of Prejudice, A Psychological and Sociological Study of Veterans (1950)_________________________________________ 73 Blascoer, Colored School Children in New York (1915)_ 30 Bond, Education of the Negro in the American Social Order, 3 (1934)_________________________________ 27 Boudin, Truth and Fiction About the Fourteenth Amendment, 16 N. Y. U. L. Q. Rev. 16 (1938)--------- 61 Boyer, The Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Ore. L. Rev. 281 (1941)___________________________________ 17 Buck, The Road to Reunion (1937) --------------------------- 61 Bunche, Education in Black and White, 5 Journal of Negro Education 351 (1936) ------------------------------ 27 Clark, Negro Children, Educational Research Bulletin (1923) _____________ ________________________ — - 24 Conant, A Free Classless Society: Ideal of Illusionf 42 Harvard Alumni Bulletin 245 (1939) --------------- 16 IX PAGE Cong. Globe, 39th Cong., 1st Sess. (1865) ____________ 57 Cong. Globe, 39th Cong., 1st Sess. (1866) ___________ 55 Cong. Globe, 42nd Cong., 2nd Sess. (1872) __________53, 57 Cong. Globe, 43rd Cong., 1st Sess. (1874) _______ 16, 53, 57 Cong. Rec., 43rd Cong., 1st Sess. (1874) ___________ 59, 61 3 Cong. Rec., 43rd Cong., 2nd Sess. (1875) ___________ 61 Deutscher and Chein, The Psychological Effects of En forced Segregation: A Survey of Social Science Opinion, 26 Journal of Psychology 259 (1948) ____ 27 Dewey, My Pedagogic Creed (1929) ________________ 14 Dollard, Caste and Color in a Southern Town (1937) _ 2 7 Dombrowski, Attitudes of Southern University Profes sors Toward the Elimination of Segregation in Graduate Schools in the South, 19 The Journal of Negro Education 118 (1950) ____________________ 22 Dowling, Constitutional Law (1946) ________________ 39 Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949) ___ 47 Education for Freedom, Inc., A Symposium of Radio Broadcasts on Education in a Democracy (1943)_14,30 Factors Affecting the Admission of High School Seniors to College (1949), A Report of Elmo Roper for Committee on a Study of Discriminations in College Admissions________________________ ...___ 64 Fairman & Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stanford L. Rev. 5 (1949) ----------------------------------------------------- 37, 39, 56 Paris, The Nature of Human Nature (1937) _________ 26 Flack, The Adoption of the Fourteenth Amendment (1908) ------- ------------------------------_ ------------------ 55,56 Frankfurter, Some Reflections on the Reading of Stat utes, 47 Col. L. Rev. 527 (1947)__________________ 54 Frazier, The Negro in the United States (1949).__20, 22, 53 Gallagher, American Caste and the Negro College (1938) ____ .________________ ___________________ 29 Hamilton & Braden, The Special Competence of the Supreme Court, 50 Yale L. J. 1319 (1941)________ 34 Henrich, The Psychology of Suppressed People (1937) 27 X Holmes, The Use of Law Schools, Collected Legal Papers (1920) _________________________________ 17 James, The Philosophy of William James (1925) ___ 29 Johnson, Patterns of Segregation, II, Behavioral Re sponse of Negroes to Segregation and Discrimina tion (1943) ___________________________________ 26,27 Key, Southern Politics in the State and Nation (1949) 40 Klineberg, Negro Intelligence and Selective Migration (1935) ________________________________________ 24 Klineberg, Race Differences (1935) ___ 24 LaParge, The Race Question and the Negro (1945)__ 29 Lasker, Race Attitudes in Children (1949)___________ 26 Lasswell and McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Tale L. J. 203 (1943)________________________ 17,18 Loescher, The Protestant Church and the Negro (1948) 29 Locke, Dilemma of Segregation, 4 Journal of Negro Education 407 _________________________________ 65 Long, Psychogenic Hazards of Segregated Education of Negroes, 4 The Journal of Negro Education 343 (1935) _______________________________________ 26,27 Lusky, Minority Rights and the Public Interest, 52 Tale L. J. 1 (1942)__________________________________ 12,41 Mangum, Jr., The Legal Status of the Negro (1947) _ 27 Marx, Effects of International Tension on Liberty Un der Law, 48 Col. L. Rev. 555 (1948) ______________ 41 McG-ovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreement, Cov enants or Conditions in Deeds is Unconstitutional, 33 Calif. L. Rev. 5 (1945)________________________ 31 McWilliams, Race Discrimination and the Law, 9 Science and Society No. 1 (1945) _______________ 27 Montague, Man’s Most Dangerous Myth—The Fallacy of Race (1945) _________________________________ 24 Morgan, Horace Mann, His Ideas and Ideals (1936)___ 14 Moton, What the Negro Thinks (1929) _____________26,27 Myrdal, An American Dilemma (1944)________20, 27, 28, 29 Park, The Basis of Prejudice, The American Negro, the Annals, Vol. 140 _______________ ________________ 26 PAGE PAGE Peterson & Lanier, Studies in the Comparative Abili ties of Whites and Negroes, Mental Measurement Monograph (1929) _____________________________ Report of the President’s Committee on Civil Rights, To Secure These Rights (1947) ______________20, 27, Report of the President’s Commission on Higher Edu cation, Higher Education for American Democracy, Vol. 1 (1947) ______________________________15,21, Rose, America Divided: Minority Group Relations in the United States (1948) ________________________ Rose, The Negro’s Morale: Group Identification and Protest (1949) _________________________________ Simpson, The Function of a University Law School, 49 Harv. L. Rev. 1069 (1936)_______________________ Smith, Harlan Fiske Stone: Teacher, Scholar and Dean, 46 Col. L. Rev. 708 (1946) ________________ Smythe, The Concept of “ Jim Crow” , 27 Social Forces 48 (1948) _____________________________________ Thompson, “ Mis-Education for Americans” , 36 Sur vey Graphic, 119 (1947) ________________________ Thompson, Separate But Not Equal, The Sweatt Case, 33 Southwest Review 105 (1948) _________ 22, 30, 36, Thompson, Some Progress in the Elimination of Dis crimination in Higher Education in the United States, 19 Journal of Negro Education 1 (1950)___ Tussman & ten Broek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949) ___________10,34, United States 16th Census, Population, 2nd Series, U. S. Summary (1940) _______________________ 27, United States Office of Education, Educational Direc tory, Vol. I l l (1946-47) _______________________ 63, United States Office of Education, Statistics of Higher Education (1943-44) ______ ...____________________ Ware, The Role of the Schools in Education for Racial Understanding, 13 Journal of Negro Education (1944) ________________________________________ Warner, New Haven Negroes (1940) ________________ Young, America’s Minority Peoples (1932) ------------- 24 73 27 24 26 18 17 28 29 52 30 54 63 64 63 26 30 27 XU Notes PAGE 36 Col. L. Rev. 283 (1936) ________________________ 34 40 Col. L. Rev. 531 (1940) ________..._______________ 34 46 Col. L. Rev. 639 (1946) ________________________ 30 49 Col. L. Rev. 629 (1949) ______________________ 34,54 13 Mo. L. Rev. 286 (1948) ______________________ .... 21 46 Mich. L. Rev. 639 (1948) ...._____________________ 30 41 Yale L. J. 1051 (1931) _______________ 34 56 Yale L. J. 1051 (1947) ___________________ 27 (Editorial Note) 19 Journal of Negro Education 4 (1949) ________________________________________ 22 IN' T H E Supreme Court of the United States October Term, 1949 No. 44 Heman Marion Sweatt, Petitioner, vs. T heophilus Shickel Painter, et a l. BRIEF FOR PETITIONER. Opinions Below. The Texas Court of Civil Appeals remanded this cause without prejudice, then affirmed the judgment of the court below and finally denied petitioner’s motion for rehearing. These decisions are set out in the record at pages 434-435, at pages 445-460, and at pages 460-461 respectively. The only reported opinion can he found in 210 S. W. 2d 442. The opinion of the Supreme Court of Texas denying appli cation for writ of error and overruling the motion for re hearing may be found at pages 466, and 471 of the record. They are not reported. 2 Jurisdiction. Jurisdiction of this Court is invoked under Title 28, United States Code, Section 1257, this being a case involving rights secured under the Fourteenth Amendment to the Constitution of the United States. Petitioner commenced this action in the state courts of Texas on May 16, 1946. The District Court of Travis County, Texas denied his petition for writ of mandamus on June 17, 1947 (R. 438- 440). The Texas Court of Civil Appeals affirmed this judg ment on February 25, 1948 (R. 445-460, 465),3 and the Supreme Court of Texas refused application for writ of error on September 29, 1948 (R. 466). At each and every stage of this proceeding, petitioner has raised and main tained his basic contention that unless he is admitted to the University of Texas, which Texas maintains for whites, he is denied the equal protection of the laws required under the Fourteenth Amendment. Statement of the Case. On May 16, 1946, petitioner filed in the 126th District Court of Travis County, Texas, a petition for a writ of mandamus seeking his admission to the University of Texas School of Law from which he had been excluded solely because of race and color (R. 403-408). On June 17, 1946, a hearing was held, and on June 26 the District Court entered judgment declaring the state’s refusal to admit petitioner to the University of Texas School of Law con stituted a denial of the equal protection of the laws since 1 There were three hearings in the lower court and two arguments before the Court of Civil Appeals. These details are explained infra under Statement of the Case. Referred to here are the final hearings only in these two tribunals. 3 this institution is the only one within the state which pro vides legal training. The court, however, refused to grant the writ at that time and gave respondents six months to provide a course of legal instruction ‘ ‘ substantially equiva lent” to that which was provided at the University of Texas and retained jurisdiction of the cause during that period (E. 424-426). On December 17, 1946, a second hearing was held, and the court entered final judgment dismissing the petition on the ground that the state had made available another law school providing legal training “ substantially equivalent” to that offered at the University of Texas and, therefore, had complied with its order of June 26. This judgment was entered although the record clearly shows that no such law school had been established for petitioner and other Negroes. The state had only promised to furnish separate legal educational facilities in the future (R. 426-432). On March 26, 1947, the Court of Civil Appeals set aside the judgment of the trial court without prejudice and re manded the cause for further proceedings (R. 434-435). On May 12-18, 1947, a trial on the merits was held in the lower court. On June 17, 1947, judgment was entered for respondents, and the petition for writ of mandamus was dismissed (R. 438-440). This decision the Court of Civil Appeals affirmed on February 25, 1948. Its opinion ap pears on pages 445-460 of the record. Motion for rehearing was denied on March 17, 1948 (R. 460), with opinion (R. 460-461). The opinion is re ported in 210 S. W. 2d 442. On September 8, 1948, the Supreme Court of Texas denied application for writ of error, without opinion 4 (E. 466) and on October 27, 1948, a motion for rehearing was overruled (R. 471). They are not officially reported. Thereupon petitioner brought the cause here, and his petition for writ of certiorari was granted on November 7, 1949 (R. 473). Statement of Facts. Over four years ago, petitioner duly filed an application for admission to the University of Texas School of Law. He possessed all the qualifications necessary for admission. It is conceded that his being a Negro was the sole reason for respondents’ refusal to admit him. When the May 16th and December 17th, 1946 hearings were held, the only state- supported law school in existence was the law school at the University of Texas which was maintained exclusively for whites. Thus from the time petitioner made application to the University of Texas on February 26, 1946, through the May 16th and December 17th hearings, respondents re fused to admit him to the only existing state facility, al though they had made no other provision for his education. Yet their defense was that they were required to furnish petitioner “ separate but equal” facilities. While the first appeal was pending in the Court of Civil Appeals, a separate law school for Negroes was established to which petitioner on March 20, 1947, was invited to attend (R. 175). It has been petitioner’s contention all along that the state has no authority to exclude him from the Univer sity of Texas School of Law merely because of his race and color, and that this separate Negro institution was not and could not be the equivalent of the law school of the Univer sity of Texas. 5 Errors Relied Upon. I. The Texas Court was in error in holding that the “separate but equal” doctrine did not violate peti tioner’s right to equal protection of the laws guaran teed by the Fourteenth Amendment to the Federal Constitution. II. The Texas Court was in error in holding that the law school established for Negroes at Austin was “substantially equal” to the law school which the state makes available to non-Negroes at the University of Texas. III. The Texas Court was in error in holding that the respondents were not required under the Fourteenth Amendment to the Federal Constitution to admit peti tioner to the school of law of the University of Texas on the same basis as it admits qualified non-Negro applicants. IV. The Texas Court was in error in refusing to admit evidence showing that in its application the “separate but equal” doctrine inevitably results in the Negro facility being inferior and hence that the doctrine re sults in discrimination based upon race and color in violation of the Federal Constitution. 6 Summary of Argument. Petitioner contends that the Court should reverse the judgment of the court below on the grounds that the equal protection clause of the Fourteenth Amendment, as prop erly construed, is not conducive to an interpretation which would permit the State to exclude him from the University of Texas School of Law solely because of his race and color. The equal protection clause has both a broad and a specific purpose which may be described as follows: First, it was broadly intended to insure that all persons similarly situated would be treated alike in their relationships with the state. Second, it was specifically meant to prohibit any state from denying to Negroes, as such, any rights, privi leges or advantages which it offers or makes available to white persons. The first purpose has been interpreted as an interdiction against arbitrary governmental action, and hence any classification or distinction which a state makes can be justified only when it relates to some real difference having pertinence to a legitimate legislative objective. The second purpose has been interpreted as embodying a fundamental hostility to racial distinctions and classifications, and as incorporating into the fundamental law the democratic credo that governmental action based upon race and blood are necessarily arbitrary. Petitioner contends that respon dents’ refusal to admit him to the University of Texas School of Law, solely because of his race, while admitting white persons as a matter of course, defeats both of these purposes, and hence subjects him to a violation of consti tutional rights. Respondents’ attempt to justify their conduct is in the nature of confession and avoidance. They admit that their 7 refusal to allow petitioner to enter the University of Texas School of Law is because of his race. They contend, how ever, that such conduct has been cured of unconstitution ality because he may now secure legal training at a Negro law school “ substantially equivalent” to that being offered at the University of Texas. In support of their position, they rely chiefly on Plessy v. Ferguson, 163 U. S. 537. Petitioner maintains that Plessy v. Ferguson is not applicable to this case. Whatever view may be taken as to the correctness of the Plessy doctrine, this Court has never applied that doctrine to education. Petitioner submits that the very purpose which education is designed to achieve in a democratic society is at war with the imposition of the arbitrary standards inherent in racial segregation. Peti tioner further maintains that the application of the “ sepa rate but equal” formula inevitably results in racial dis crimination. In every instance those facilities which the state has set aside for Negroes as “ separate but equal” , measured by any conceivable standard, have been graphi cally inferior in nature to schools available to all other persons. The record discloses that this case is no exception. This Court has long recognized that the Constitution is given contour and meaning only to the degree that its pro visions are properly applied to existing fact. An assump tion of equality under the doctrine of the Plessy case nulli fies the basic intendment of the equal protection clause when, as here, such equality is belied by actuality. This doctrine, therefore, is not a valid precedent for determining the constitutionality of respondents ’ acts. If the Court should believe otherwise, petitioner submits that the fallacious doctrine of Plessy v. Ferguson must be reexamined. Such reexamination will reveal that this doc trine inevitably results in the application of unequal and 8 discriminatory standards by the state in its relations with Negroes, as contrasted with the standards employed in its relations with white persons. This is a denial of equal pro tection of the laws. Petitioner submits, therefore, that the Court should issue a mandate requiring respondents to admit him to the University of Texas School of Law on a non-discriminatory basis, and that Plessy v. Ferguson should be overruled. A R G U M E N T . I. The State of Texas is forbidden by the equal pro tection clause of the Fourteenth Amendment to the United States Constitution to deny petitioner’s admis sion to the University of Texas solely because of con siderations of race and color. Petitioner has been refused admission to the University of Texas because he is a Negro. Respondents defend this refusal on the ground that state constitutional and statu tory law requires Negroes and non-Negroes to be educated in separate schools, and that such racial segregation in the state’s educational system is permitted by decisions of this Court. Petitioner contends that refusal to admit him to the University of Texas solely on the basis of his race or color is in violation of the equal protection clause of the Four teenth Amendment because : (1) differences in race afford no rational foundation for differences in treatment, and the equal protection clause permits only such differences in treatment which accord with judicial concepts of reason ableness; (2) such differences in treatment violate all no tions of reasonableness when used to determine the avail ability of public educational institutions on the law school 9 level; and (3) in any event, nnder the equal protection clause a governmental classification based upon race or color is unconstitutional per se. A. In making admission to the University of Texas School of Law dependent upon applicant’s race or color, Texas has adopted a classification wholly lacking in any rational foundation. Therefore, it is invalid under the equal protection clause. Under Texas law, only whites, or more accurately all racial or color groups other than Negroes, may attend the University of Texas School of Law. Negroes must secure whatever legal educational opportunities Texas offers to them at a separate institution. Even if we assume, argu endo, that there are circumstances in which a state has the power to make race or color the basis of a legislative classi fication (a proposition which we reject in its entirety), nevertheless, we submit, that the difference in treatment, of which petitioner here complains, is one which bears no rational relationship to any valid legislative end, and hence constitutes that form of differential treatment which contra venes the equal protection clause. The basic purpose and intent of the equal protection clause of the Fourteenth Amendment was to prohibit a state from denying its Negro citizens any right it gave or offered its white citizens. Strauder v. West Virginia, 100 U. S. 303. A secondary purpose was to insure that all persons similarly situated would receive like treatment and that no special groups or classes should be singled out for favorable or discriminatory treatment. Southern Railway Co. v. Greene, 216 U. S. 400; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Maxwell v. Bugbee, 250 U. S. 525. It will be observed that the secondary purpose is broader in scope than the first, since it is not primarily concerned 10 with racial distinctions hut with arbitrary distinctions of any kind. To determine if state legislation subserves that secondary purpose, this Court does not prohibit all hut only certain types of legislative distinctions. This adjustment has been necessary because the requirements of equal pro tection pose a relatively difficult problem. Classification by definition implies the imposition of duties and burdens upon a special class, different from that to which the gen eral public is subject. Metropolitan Casualty Insurance Co. v. Brownell, 294 U. S. 580; Puget Sound Power Light Co. v. Seattle, 291 U. S. 619; Board of Tax Commissioners v. Jackson, 283 U. S. 527; Patsone v. Pennsylvania, 232 U. S. 138; Clark v. Kansas City, 176 U. S. 114.2 An interpretation of the equal protection clause, how ever, as wholly depriving the states of this power, would seriously threaten the orderly administration of govern ment.3 Yet, if the states are not carefully limited as to the classifications they may make, the equal protection clause would become meaningless. Therefore, the Court when deal ing with this type of legislation has devised the following test: If a classification is to conform to the constitutional mandate of equal protection, it must be based upon some real or substantial difference which has pertinence to a valid legislative objective, e. g., Dominion Hotel v. Arizona, 249 U. S. 265; Maxwell v. Bugiee, supra; Continental Bak ing Co. v. Woodring, 286 U. S. 352; Great Atlantic <& Pacific 2 See also: Tussman & ten Broek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341 (1949) for a scholarly analysis of the treatment of the equal protection clause by this Court. 3 “ * * * the machinery of government would not work if it were not allowed a little play in its joints.” Mr. Justice H olmes, Bain Peanut Co. v. Pinson, 282 U. S. 499, SOI. 11 Tea Co. v. Gr os jean, 301 U. 8. 412; Queenside Hills Co. v. Saxl, 328 U. S. 80; Groessart v. Cleary, 335 U. S. 464.4 On the other hand where alleged differences on which the classification rests do not in fact exist, or cannot be reasonably or rationally related to the legislative end, the classification violates the constitutional requirement of equal protection, e. g., Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389; Southern B. Co. v. Greene, supra; Truax v. Raich, 239 U. S. 33; Smith v. Cahoon, 283 U. S. 553; May flower Farms v. Ten Eyck, 297 U. S. 266; Skinner v. Okla homa, 316 U. S. 535. The above formula has been consist ently followed by this Court without deviation since the adoption of the Fourteenth Amendment, as the most effec tive method of giving life and substance to the mandate of equal protection, while at the same time permitting the state freedom to deal with the everyday problems of government.5 In this case, Texas uses the dissimilarity of race and color between Negroes and non-Negroes as the basis for determining eligibility to attend the University of Texas. There are, in effect, two systems of education—one for Negroes and one for non-Negroes. If we are to test the constitutionality of this classification by the applicable standards of this Court, we must first discover and examine the objective the state is attempting to accomplish in pro viding educational advantages for its citizenry through the graduate and professional school levels, and then determine what relevance, if any, race and skin pigmentation may have to such purposes. 4 See: Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, for an excellent analysis of Court’s approach to a classification problem. 5 Of course there has been considerable disagreement on the Court as to whether these principles were being properly or appropriately applied. See e. g. Mr. Justice R utledge’s dissent in Kotch v. Board of River Port Pilot Commissioners, 330 U. S, 552, 565; but the formula itself has never been questioned. 12 1. There is no valid basis for the justification of racial segregation in the field of education. Enforced racial segregation aborts and frustrates the basic purposes and objectives of public education in a democratic society. In onr search of cases and literature on the subject, both legal and otherwise, the only bases that we have been able to find on which states have attempted to justify laws which require the segregation of races in educational facilities are: (1) That racial segregation in some way aids in the accomplishment of the objectives which a state is attempt ing to bring about in setting up a system of public educa tion; (2) that segregation laws are necessary to preserve public peace and good order; and (3) that races are of unequal ability to participate in the educational process and therefore separate treatment is required. We submit that there is no rational connection between racial differ ences and any valid legislative objective which a state may attempt to promote in providing public education. In this area, therefore, identical treatment of the races is mandatory. a. Our way of life is founded on a system which places reason above coercion.8 Lovell v. Griffin, 303 U. 8. 444; Schneider v. State, 308 U. S. 147; Hague v. C. I. 0., 307 U. S. 496. Mr. Justice B randeis, in a concurring opinion in Whitney v. California, 274 U. S. 357, 375 said: “ Those who won our independence believed that the final end of the State was to make men free to develop their faculties; that in its government the deliberative forces should prevail over the arbi trary.” 6 6 For a discussion of the national interest in elimination of racial discrimination and of the differences between ours and a totalitarian system see: Lusky, Minority Rights and the Public Interest, 52 Yale L. J. 1 (1942). 13 We have come to realize that democratic processes can only operate effectively where there is an alert and en lightened citizenry. In order to make certain that our citi zens are equipped to make rational decisions and thus main tain and preserve our democratic institutions, it is vital that their individual skills and values, as well as a prag matic belief in the basic tenets of democracy, be developed through the medium of education. This function of edu cation has become so important that it is no longer left solely in the hands of the parents or philanthropists.7 It is one of the highest functions of state government. In order that Americans may develop their intellectual ca pacities and ethical principles to the fullest, and thus par ticipate most effectively in the responsibility and duties of citizenship, all the forty-eight states have uniformly under taken to provide educational benefits at a minimum cost to the individual citizen. 7 As stated in 47 Am. Jur., Schools, Section 6, page 299, at com mon law, the parent’s control over his child extended to the acquisition of an education. The parent’s common law rights and duties in this regard “ have been generally supplemented by constitutional and statu tory provisions, and it is now recognized that education is a junction of the goverment.” (Italics ours.) There is another important reason for the trend towards public rather than private education, particularly at the university level. The cost of maintaining a large university at a high standard has become so prohibitive that some of our oldest and best private insti tutions are in grave financial straits which, unless alleviated, might necessitate their closing down. See: Address of Dr. Seymour of Yale University to alumni on February 5, 1950, as reported in N. Y. T im es, February 6, 1950, page 27, and in the N. Y. H erald T ribune , February 6, 1950, on page 3. Dr. Alonzo F. Myers, Chairman of the New York University Department of Higher Education, at the annual luncheon of the Tuition Plan held in New York City on February 16, 1950, stated that higher education must be expanded to meet growing needs. He felt, however, that this expansion must occur largely in publicly sup ported institutions and stressed the grave financial crisis of 500 small private colleges. N . Y . T im e s , February 17, 1950, page 1. 14 b. If it be a basic principle of onr American credo that education is a necessary function of democracy, then it follows logically that education must be made available to all citizens. Horace Mann, one of the most illustrious names in the history of American pedagogy, said: 8 ‘ ‘ Education must be universal # # The theory of our government is—not that all men, however unfit, shall be voters—but that every man, by the power of reason and the sense of duty, shall become fit to be a voter. Education must bring the practice as nearly as possible to the theory. As the children now are, so will the sovereigns soon be. How can we expect the fabric of the government to stand, if vicious materials are daily wrought into its frame work. Education must prepare our citizens to be come municipal officers, intelligent jurors, honest wit nesses, legislators, or competent judges of legisla tion—in fine, to fill all the manifold relations of life. For this end, it must be universal.” Mortimer J. Adler, professor of law at the University of Chicago, stated the same proposition in these terms: 9 “ Liberal education is developed only when a cur riculum can be devised which is the same for all men, and should be given to all men, because it consists 8 Morgan, Horace Mann— His Ideas and Ideals, 98 (1936). 9 Education for Freedom, a Series of Radio Lectures sponsored and published by the Education for Freedom, Inc., New York (1943). Other lectures by Mark Van Doren and Dr. Robert M. Hutchins, among others, also included pertinent remarks on this subject; 7 Dewey, M y Pedagogic Creed 6 (1929). (Although originally pub lished in 1897 it was republished by the Progressive Education Assn, in 1929.) 15 in those moral and intellectual disciplines which lib erate men by cultivating their specially rational power to judge freely and to exercise free will * * * ” It has never been regarded as sufficient that some edu cational facilities he afforded to some of the citizens of this country. All of our educators, sociologists, and parent- groups, have uniformly held that the sources and tools of learning be given to all citizens alike no matter to what group, sect, race, or color they belong. The strength of a democratic educational system rests not only in its uni versality, but in its freedom from arbitrary distinctions. The highest goal of a teacher in a democracy is to teach democracy. To permit racial segregation in American schools is to contradict the basic purpose for which the schools exist. In 1947 the Eeport of the President’s Com mission on Higher Education read: 10 “ * * * the role of education in a democratic society is at once to insure equal liberty and equal oppor tunity to differing individuals and groups, and to enable the citizens to understand, appraise, and re direct forces, men, and events as these tend to strengthen or to weaken their liberties.” 10 A Report of the President’s Commission on Higher Education, Higher Education for American Democracy, Vol. 1, 5 (1947) ; also at page 5 see: “ American society is a democracy: That is, its folk ways and institutions, its arts and sciences and religions are based on the principles of equal freedom and equal rights for all its members, regardless of race, faith, sex, occupation, or economic status. The law of the land, providing equal justice for the poor as well as the rich, for the weak as well as the strong, is one instrument by which a democratic society establishes, maintains, and protects this equality among different persons and groups. The other instrument is edu cation, which, as all the leaders in the making of democracy have pointed out again and again, is necessary to give effect tô the equality prescribed by law.” 16 The language of Mr. Justice F r a n k f u r t e r in the case of Illinois ex rel. McCollum v. Board of Education similarly supports this proposition.11 Education is not only a component part of true demo cratic living, but is the very essence of and medium through which democracy can be effected. The intent of the framers of the Fourteenth Amendment was indicated in the 43rd Congress in 1874 by these words: “ * * * that all classes should have the equal protection of American law and be protected in their inalienable rights, those rights which grow out of the very nature of society, and the organic law of this country.” 12 (Italics ours.) c. These statements define the overall purposes and functions of education in a democratic society. On the pro fessional level, the function of the state-supported law school enjoys an even greater significance. For it has been 11 Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 216, 217: “ The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. 12 1 Cong. Globe, 43rd Congress (1874) ; Conant, “ A Free Class less Society: Ideal of Illusion?’’ : Address given at N. Y. H erald T ribune Forum on Current Problems, 1939; Printed in 42 Harvard Alumni Bulletin 245 (1939) with consent of Herald Tribune: The Bill of Rights and academic freedom go hand in hand. Dislike of governmental tyranny and hatred of restraints on man’s intellectual power are close allies * * * If I am correct, what choice have those who teach our youth? None but to hope that the American ideal is not an illusion, that it is still valid; none but to labor unremittingly for a type of education which will every day quietly loosen the social strata; none but to believe that through the functioning of our schools and colleges American society will remain in essence classless and, by so doing, even in days of peril, preserve the heritage of the free.” 17 said by legal scholars and sociologists that: “ We are a nation that professes deep regard for the dignity of men and that in practice relies to an extraordinary degree npon the advice of professional lawyers in the formation and execution of policy. ’ ’ 13 The late Chief Justice Stone described the law in terms of its sociological significance: 14 “ Law performs its function adequately only when it is suited to the way of life of a people. With social change comes the imperative demand that law shall satisfy the needs which change has created, and so the problem, above all others, of jurisprudence in a modern world is the reconciliation of the demands, paradoxical and to some extent conflicting, that law shall at once have continuity with the past and adaptability to the present and future * * * We are coming to realize more completely that law is not an end, but a means to an end—the adequate con trol and protection of those interests, social and eco nomic, which are the special concern of government and hence of law.” The objectives of the modern law school have been de scribed as being four-fold in nature: (1) to prepare for pub lic service; (2) to prepare for practice; (3) to prepare for law teaching; and (4) to prepare for legal research.15 13 Lasswell and McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 291 (1943). 14 Smith, Harlan Fiske Stone: Teacher, Scholar and Dean, 46 Col. L. Rev. 708 (1946) ; See also: Holmes, The Use oj Law Schools, Collected Legal Papers 39-40 (1920) where Mr. Justice H olmes said that the aim of the law school must be “ not to make men smart, but to make them wise in their calling—to start them on a road which will lead them to the master.” 15 Boyer, The Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Ore. L. Rev. 281 (1941). 18 It is the special duty of legal education to supply “ our social mechanics and many, if not most of our social in ventors” .16 From this source stem our main body of civic leaders, judges, legislators and other public servants. It is the law school which trains “ policy makers for the even more complete achievement of the democratic values that constitute the professed ends of American policy” .17 It is evident that the role of education in our society today is one of equipping our citizens with information and specific skills in order that they may productively enjoy the benefits of democracy. It is also evident that if we are to preserve our traditions of freedom, and if we are to com pete successfully at home and abroad with other ideologies and philosophies, our people must above all be trained and enlightened.18 If an enlightened citizenry is a necessary factor in the equation of democracy, then it follows that education is an integral part of the democratic process. Assuming that education is merely a privilege, it is one of such a peculiar and precious nature that those entrusted with its admin istration have a compelling duty rather than mere discre tionary power to see that no distinctions are made on the basis of race, creed or color. Unless Texas has some pur- 16 Simpson, The Function of a University Law School, 49 Harv L. Rev. 1069 (1936). 17 Lasswell and McDougal, supra note 13, at 206. 18 The importance of education in terms of national welfare and national interest can be emphasized in another manner. The armed forces reported that in the critical June-July 1943 period when the manpower needs for the armed services were at their peak, 34.5% of the Negro rejections were for educational deficiencies. American Teachers Assn, The Black & White of Rejections for Military Ser vice 5 (1944). 19 pose other than these democratic objectives outlined above,19 it must permit all persons without regard to class or race to participate in these benefits on an equal basis. Eacial separation, as it relates to a function as vital to the maintenance of democratic institutions as education, endangers devotion to the very ideals which education is supposed to instill. The segregated citizen cannot give full allegiance to a system of law and justice based on the proposition that “ all men are created equal” when the community denies that equality by compelling his children 19 It may be that Texas has the same objective Mississippi has. The Mississippi Supreme Court in Rice v. Gong Lum, 139 Miss. 760, 104 So. 105, 108, described the segregation policy of the state as being required to preserve the purity and integrity of the white race and its social policy. “ In our State no statute has defined the term ‘colored race’ and considering the policy of the State indicated above we think the Constitutional Convention used the word ‘colored’ in the broad sense rather than the restricted sense, its purpose being to provide schools for the white or Caucasion race, to which schools no other race could be admitted, carrying out the broad dominant pur pose of preserving the purity and integrity of the white race and its social policy. (Marriage between Mongolian and whites and whites and Negro prohibited but not as between Negro and Mongolian.) To all persons acquainted with the social conditions of this State and of the Southern States generally, it is well known that it is the earnest desire of the White Race to preserve its racial integrity and purity and to maintain the purity of the social relations as far as it can be done by law. It is known that the dominant purpose of the two sections of the Constitution of our State was to preserve the integrity and purity of the White Race. When the public school system was being created it was intended that the White Race should be separated from all other Races * * * Taking all of the pro visions of the law together it is manifest that it is the policy of this State to have and maintain separate schools and other places of association for the Races so as to prevent race amalgamation. Race amalgamation has been frowned on by Southern Civilization always, and our People have always been of the opinion that it was better for all races to preserve their purity. However, the segregation laws have been so shaped as to show by their terms that it was the White Race that was intended to be separated from the other races.” (Footnote continued on p. 20.) 2 0 to attend separate schools. Nor can a member of the domi nant group fail to see that the community at large is daily violating the very principles in which he is being taught to believe.20 It is essential for the successful development of our country as a nation of free people that the understanding and tolerance which we wish practiced in later life be fostered in the classroom. A statement by Mr. Charles P. Sumner in 1849 has particular relevancy here. “ And since according to our institutions, all classes meet, without distinction, in the performance of civil duties, so should they all meet, without dis tinction of color, in the school, beginning there those (Footnote continued from p. 19.) Realistically, segregation is intended to maintain and foster a belief in white supremacy and Negro inferiority, as is so frankly inferred in the above quote from the Mississippi court. Another facet of this belief may be gleaned from the fact that in those states where the segregation of the races is required, it is libelous per se, and in most instances slanderous per se, to label a white man as a Negro. Spor- tono v. Fourichon, 40 La. Ann. 423, 4 So. 71 (slander) ; Upton v. Times Democrat Publishing Co., 104 La. 141, 28 So. 970 (libel) ; Collins v. Oklahoma State Hospital, 76 Okla. 229, 184 P. 946 (libel) ; Flood v. Evening Post Publishing Co., 71 S. C. 122, 50 S. E. 641 (libel) ; Flood v. News and Courier Co., 71 S. C. 112, 50 S. E. 637 (slander) ; Spencer v. Looney, 116 Va. 767, 82 S. E. 745 (slander) ; Morris v. State, 109 Ark. 530, 160 S. W . 387 (slander). Cf. Plessy v. Ferguson, supra at 549; Contra: Kenworthy v. Brown, 92 N. Y. S. 34; see also Davis v. Meyer, 115 Nebr. 251, 212 N. W . 435. If belief in inferiority of Negroes is the basis for Texas policy, or if segregation is founded upon racial malice or animosity, then unquestionably the legislative objection is unconstitutional. Kore- matsu v. United States, 323 U. S. 214. 20 Many recent studies have pointed up the debilitating effect this conflict between ideals and practice causes in America. See particu larly Myrdal, An American Dilemma (1944) passim and chap. 45 for the analysis of this conflict between ideals and practice. President’s Committee on Civil Rights, To Secure These Rights (1947) ; Frazier, The Negro in the United States (1949). 2 1 relations of equality which our Constitution and laws promise to all.” 21 Nor can it be argued that separation is a more effective and economical method of providing educational advan tages. It is generally agreed that the duplication which segregation requires makes the maintenance of a dual sys tem of education more expensive and in general lessens the quality of education which would be available to all under an unsegregated system.22 23 * “ Segregation lessens the quality of education for the whites as well. To maintain two school systems side by side—duplicating even inadequately the build ings, equipment, and teaching personnel—means that neither can be of the quality that would be possible if all the available resources were devoted to one system, especially not when the States least able financially to support an adequate educational pro gram for their youth are the very ones that are try ing to carry a double load. ’ ’ 28 The conclusion, therefore, that the use of race or color as a classification for the purpose of determining the availa bility of educational institutions bears no relation to the state’s objective is inescapable. 21 Argument of Charles Sumner, Esq., Against the Constitution ality of Colored Schools in the case of Sarah C. Roberts v. Boston, 29-30 (1848). 22 Even if it could be shown that dual system of education is economically sound, that would not make the practice constitutional. 23 President’s Commission on Higher Education, op. cit. supra note 10, Vol. I, at 31. That even those who believe in segregation recognize it to be wasteful and inefficient can be gleaned from the fact that several southern states in an effort to maintain segregation and yet cut down on excessive duplication are now embarking on an attempt to pool their resources in the establishment of regional graduate and pro fessional schools under a regional compact. See for discussion of this compact (N ote), 13 Mo. L. Rev. 286 (1948). 22 2 . Racial segregation cannot b e justified as essential to the preservation o f peace and good order. All the available data with regard to the admission of Negroes on an integrated basis to public educational facili ties of higher learning negates the argument that segre gation is required to preserve peace and good order. The experiences of states with a racial and social policy similar to that of Texas demonstrate that this policy may he abandoned at least at the graduate and professional school level to the advantage of all concerned. The Uni versity of Maryland has admitted Negroes into its law school since 1935. Negroes have freely attended the Uni versity of West Virginia since 1939. The University of Arkansas in 1947 admitted a Negro to its law school on a segregated basis. Before the term had ended, segregation had been eliminated and now Negroes are attending its law school and school of medicine just like any other students. The University of Delaware is now open to Negroes, as is the University of Kentucky. In September 1949, a Negro was admitted into the University of Texas School of Medi cine.24 In every instance there was considerable initial resistance by governmental officials to the abandonment of segregation. Yet all of these experiments have been bene ficial and successful. * 16 24 Both the University of Oklahoma and Oklahoma A. & M. College are now open to Negroes but on a segregated basis. For full discussion of the lowering of these barriers, see (Editorial Note), 16 Journal of Negro Education 4-6 (1949). See also: Thompson, Separate But N ot Equal, The Sweatt Case, 33 Southwest Review 105, 111 (1948). Frazier, op. cit. supra note 20, chap. 17. There is evidence that a large segment of the southern teaching profession looks with favor on the abandonment of segregated schools. For an interesting article on this point see, Dombrowski, Attitudes of South ern University Professors Toward the Elimination of Segregation in Graduate Schools in the South, 19 The Journal of Negro Education 118 (1950). 23 Moreover, even assuming that the non-discriminatory treatment of petitioner by Texas, which the equal protec tion clause demands, will disturb public peace, the Court has consistently held that this is not a justification for the denial of constitutional rights to which one would other wise be entitled. In Buchanan v. Warley, 245 U. S. 60, the State of Ken tucky attempted to defend an ordinance segregating whites and Negroes into separate residential areas on the ground that otherwise riots and disorder might result. That argu ment this Court dismissed with this statement: “ It is urged that this proposed segregation will promote the public peace by preventing race con flicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Consti tution” (p. 81). In Shelley v. Kraemer, 334 U. S. 1, this Court reaffirmed the principle that the preservation of public peace and good order does not suffice to clothe with constitutionality governmental action which effects a classification or dis tinction based upon race. See also: Bridges v. California, 314 U. S. 252; Cantwell v. Connecticut, 310 U. S. 296; Mor gan v. Virginia, 328 U. S. 373; Thornhill v. Alabama, 310 U. S. 88; Whitney v. California, supra.25 25 Cf. Schneider v. State, supra, at 161: “ Mere legislative pref erences or belief respecting matters of public convenience may well support regulation directed at other personal activities, but be insuffi cient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.” 24 3 . There is no rational basis fo r a legislative assumption that different races have different intellectual potenti alities and should th erefore be educated in separate schools. The practice of segregation has at times been rational ized by the claim that there are inherent differences between the races. This essentially racist view assumes that minori ties belong to inferior races, and that racial intermixture results in the degeneracy of the superior race. After an exhaustive study of all scientific data referring to the intel lectual capacity of different racial groups, an expert wit ness testified in the instant case to this effect: “ The conclusion then, is that differences in intel lectual capacity or in ability to learn have not been shown to exist as between Negroes and whites, and further, that the results make it very probable that if such differences are later shown to exist, they will not prove to be significant for any educational policy or practice” (R. 193-194). One of the leading sociologists in the field of race rela tions has pointed out: “ There is not one shred of scien tific evidence for the belief that some races are biologically superior to others, even though large numbers of efforts have been made to find such evidence.” 26 Thus there is no rational or factual support for the racist position. The racist premise is completely invalid, and no act of segrega tion based upon it can be upheld as reasonable.27 28 Rose, America Divided: Minority Group Relations In the United States (1948). 27 Montague, Man’s Most Dangerous Myth— The Fallacy of Race, 188 (1945) ; American Teachers Association, op. cit. supra note 18, at 29; Klineberg, Negro Intelligence and Selective Migration (1935) ; Peterson & Lanier, Studies in the Comparative Abilities of Whites and̂ Negroes, Mental Measurement Monograph (1929) ; Clark, Negro Children, Educational Research Bulletin (1923); Klineberg, Race Differences, 343 (1935). 25 The fact that Texas singles out Negroes from all other racial groups 28 and directs that they alone shall he segre gated, makes this practice even more arbitrary in nature. Cf. Skinner v. Oklahoma, supra. It should he noted in the same connection that the University of Texas Medical School has dropped its color barriers, for the time being at least. Thus, this Court should say of Texas’ action what it said about Kentucky’s action in Buchanan v. Warley, supra, at page 81: “ It is the purpose of such enactments, and it is frankly avowed it will be their ultimate effect, to re quire by law, at least in residential districts, the compulsory separation of the races on account of color. Such action is said to be essential to the main tenance of the purity of the races, although it is to be noted in the ordinance under consideration that the employment of colored servants in white families is permitted, and nearby residences of colored persons not coming within the blocks, as defined in the ordi nance, are not prohibited. ’ ’ * 33 28Independent School District v. Salvatierra (Tex. Civ. App.), 33 S. W . 2d 790; and Minerva Delgado v. Bastro Independent School District (decided on June 15, 1948 by United States District Ct. for W . Dist. of Texas) (not officially reported). It was held that school authorities could not segregate pupils of Mexican or other Latin-American descent into separate classes or schools. The basis for these decisions, although not specifically stated must be (1 ) that segregation by race is unconstitutional; (2 ) that the school authori ties had no specific statutory authority to segregate a racial group unless such a policy as to that group is specifically enacted by the legislature. This was the basis of the decision in Westminster School District v. Mendez, 161 F. 2d 774 (C. C. A. 9th 1947) ; or (3) that Mexicans being of the white race could not be segregated under any circumstances. Whatever the basis for these decisions, the result is that the law in Texas apparently is that Negroes are the only racial group which can be segregated. 26 4 . State ordained segregation is a particularly invidious policy which needlessly penalizes N egroes, dem oralizes w hites and tends to disrupt our dem ocratic institutions. If the racial factor has no scientific basis, then the ills suffered as a result of racial segregation are particularly invidious. We have set out above the purposes and objec tives of education. In light of those definitions, it is clear that segregation is an abortive factor in the full realization of its objectives and purposes. a. First, segregation prevents both the Negro and white student from obtaining a full knowledge and understand ing of the group from which he is separated (R. 194). It has been scientifically established that no child at birth possesses either an instinct or even a propensity towards feelings of prejudice or superiority. These prejudices, when and if they do appear, are but reflections of the attitudes and institutional ideas evidenced by the adults about him.29 30 The very act of segregation tends to crystallize and perpetu ate group isolation, and serves, therefore, as a breeding ground for unhealthy attitudes.80 Secondly, a feeling of distrust for the minority group is fostered in the community at large—a psychological at 29 Park, The Basis of Prejudice, The American Negro, the Annals, Vol. 140, pages 11-20 as cited by Frazier, op. cit. supra note 20, at 668; Faris, The Nature of Human Nature, 354, chapter on The Natural History of Race Prejudice (1937). 30 Lasker, Race Attitudes in Children, 48 (1949 ); Ware, The Role of the Schools in Education for Racial Understanding, 13 Journal of Negro Education (1944) ; Moton, What the Negro Thinks (1929 ); Long, Psychogenic Hazards of Segregated Education of Negroes, 4 The Journal of Negro Education, 343 (1935). For an exhaustive study relating to the reaction of Negroes to discrimina tion and how their reactions affect their relations with whites, see Rose, The Negro’s Morale: Group Identification and Protest, passim (1949). Johnson, Patterns of Segregation, II, Behavioral Response of Negroes to Segregation and Discrimination (1943). 27 mosphere which is most unfavorable to the acquisition of a proper education (R. 195). This atmosphere, in turn, tends to accentuate imagined differences between Negroes and whites. In petitioner’s trial in the lower court, an espert witness testified to the effect that “ those (imagined) dif ferences are given an appearance of reality by the formal act of separation” .31 32 Qualified educators, social scientists, and other experts have expressed their realization of the fact that “ separate” is irreconciliable with “ equality” .82 There can be no equal ity since the very fact of segregation establishes a feeling of humiliation and deprivation to the group considered in ferior.33 b. Probably the most irrevocable and deleterious effect of segregation upon the minority group is that it imposes 31 As stated by Myrdal, op. cit. supra note 20, at 625: “ But they are isolated from the main body of whites, and mutual ignorance helps reinforce segregative attitudes and other forms of race prejudice.” 32 Id. at page 580; Johnson, op. cit. supra note 30, at 4, 318; Mangum, Jr., The Legal Status of the Negro (1947); Report of the President’s Committee on Civil Rights, op. cit. supra note 20; Report of the President’s Commission on Higher Education, op. cit. supra note 10; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 Jour nal of Psychology 259-287 (1948). 33 McWilliams, Race Discrimination and the Law, 9 Science and Society No. 1 (1945); 56 Yale L. J. 1051, 1052, 1059 (1947); Bond, Education of the Negro in the American Social Order 385 (1934) ; Moton, op. cit. supra note 30, at 99; Bunche, Education in Black and White, 5 Journal of Negro Education 351 (1936); Long, op. cit. supra note 30, at 336-343; Henrich, The Psychology of Suppressed People 52 (1937) ; Dollard, Caste and Color in a Southern Town 269, 441 (1937) ; Young, America’s Minority Peoples 585 (1932). 28 a badge of inferiority upon the segregated group.34 This badge of inferior status is recognized not only by the minority group, but by society at large. As Myrdal has pointed out: “ Segregation and discrimination have had mate rial and moral effects on whites, too. Booker T. Washington’s famous remark, that the white man could not hold the Negro in the gutter without get ting in there himself, has been corroborated by many white Southern and Northern observers. Through out this book we have been forced to notice the low economic, political, legal, and moral standards of Southern whites—kept low because of discrimina tion against Negroes and because of obsession with the Negro problem. Even the ambition of Southern whites is stifled partly because, without rising far, it is so easy to remain ‘ superior’ to the held-down Negroes * # * ” SB A definitive study of the scientific works of contempo rary sociologists, historians and anthropologists conclu sively documents the proposition that the intent and result of segregation are the establishment of an inferiority status. And a necessary corollary to the establishment of this value 34 Smythe, The Concept of “ Jim Crow” , 27 Social Forces 48 (1948) : “ ‘Jim Crow’ as used in a sociological context thus indicates for a specific social group the Negro’s awareness of his badge of inequality which he learns through the operation of a ‘Jim Crow’ concept in his every day living. This pattern of existence has be come so much a part of the nation’s social structure that it has become synonymous with the words ‘segregation’ and ‘discrimination’, and at times when ‘Jim Crow’ is indexed some authors have indexed it as a cross reference for these terms.” 85 Myrdal, op cit. supra note 20, at 643. 29 judgment is the deprivation suffered by both the minority and majority groups.36 The lawyer, as has been demonstrated above, enjoys a peculiar and important role of leadership and guidance in the community. But a professional man who has received his legal education in a “ separate” or “ segregated” school must necessarily reflect the attitudes of and bear the psycho logical scars of the society which has arbitrarily placed upon 88 88 Baruch, Glass House of Prejudice 66-76 (1946); Gallagher, American Caste and the Negro College 94 (1938) : Wherever pos sible, the caste line is to keep all Negroes below the level of the lowest whites. This is the first and deepest meaning of “ separate but equal” . Page 105: “ Not the least important aspect of the caste system is its results in seriously malconditioning the individuals whose psychological growth is strongly affected by a caste divided society. These influences are not limited to the Negro caste. They stamp themselves upon the dominant caste as well” ; LaFarge, The Race Question and the Negro 159 (1945) : “ Segregation, as a compulsory measure based on race, imputes essential inferiority to the segregated group. Segregation, since it creates a ghetto, brings in the majority of instances, for the segregated group, a diminished degree of par ticipation in those matters which are ordinary human rights, such as proper housing, educational facilities, police protection, legal justice, employment, * * * Hence it works objective injustice. So normal is the result for the individual that the result is rightly termed in evitable for the group at large” ; James, The Philosophy of William James 128 (1925) : “ Properly speaking, a man has as many social selves as there are individuals who recognize him and carry an image of him in their mind. To wound any one of these images is to wound him” ; Loescher, The Protestant Church and the Negro (1948): “ (Segregation) is, in itself, an implication of inferiority, an inferiority not only of status but of essence, of being” ; Thompson, “ Mis-Educa- tion for Americans” : 36 Survey Graphic 119 (1947): “ Educa tion for segregation, if it is to be effective, must perpetuate beliefs which define the Negro’s status as inferior, which emphasize super ficial differences, or which in any way suggest that the Negro is a lower order of being and therefore should not be expected to be treated like a white person.” Page 120: “ Mis-education for segre gation has deleterious effects on both Negroes and whites. It requires mental and emotional gymnastics on both sides to adjust (or attempt to adjust) to the many logical and ethical contradictions of segre gation. The situation is crippling to the personalities of both Negro and white Americans.” 30 him the onus of being “ different” —a difference which car ries with it the tacit taint of inferiority.37 The effect upon the community-at-large as well as upon the Negro profes sional cannot fail to minimize and abort the value that such a person might have in the role of a lawyer and public servant. c. There is no compensatory value to society as a re sult of the ills suffered from segregation. As we have pointed out above, segregation in education has produced deleterious effects upon both the majority and minority groups. We have similarly found that the only logical premise upon which segregation could be based—i. e., the existence of differences in intellectual ability as between the races—has been completely discredited by scientific studies. It would appear then, that the only remaining ra tionale for segregation is that although it might be admitted that racial segregation has no validity, the prevailing cus toms and mores require that segregation be broken down in a gradual manner.38 39 However, all available data which refers to instances where segregation did exist but was sub sequently broken down, controvert this assumption.89 37 Meikeljohn, Equality and Education, radio address given over the Mutual Broadcasting System and published under the auspices of Education for Freedom, Inc. (1943). As Alexander Meikeljohn has said: “ If government is carried on by consent of the governed, then every man is a governor * * * And as such, he and his fellow- rulers must be educated for their work as rulers. But the crucial point is, that since they are all doing the same work, they must have the same education.” 88 See (N ote), 46 Mich. L, Rev. 639 (1948). 39 Warner. N ew Haven Negroes, 277 (1940 ); Blascoer, Colored School Children in N ew York 10 (1915) ; Thompson, op. cit. supra note 24: see also Thompson, Some Progress in the Elimination of Discrimination in Higher Education in the United States. 19 Journal o f Negro Education i-6 (1949). See testimony expert witnesses this case. 31 Since all available evidence controverts the theory that Negroes have an inferior mental capacity to whites, and moreover, since when permitted, the two groups work well together and to their mutual advantage, it must be con cluded that any claim of inferiority is motivated solely by a desire to perpetuate segregation per se.40 It has been demonstrated, we submit, that Texas cannot show any rational relationship between racial segregation and the accomplishment of a legitimate legislative purpose. Therefore, its refusal to admit petitioner to the University of Texas has deprived him of the equal protection of the laws, under the broadest standard with which this Court measures compliance with that constitutional requirement. B. Under the test applicable to governmental action based upon race and color a denial of admission to the Uni versity of Texas to petitioner is a clear and unwarranted deprivation of constitutional rights. Respondents ’ action is unconstitutional for an additional reason. By making race and color the sole basis for its re fusal to admit him to the University of Texas, Texas has rendered its activities subject to even stricter tests of con stitutionality than would ordinarily be the case. This stricter standard was foreshadowed by the state ment of Mr. Justice Stoxe in United States v. Carotene Products Co., 304 U. S. 144, note 4: “ There may be narrower scope for operation of the presumption of constitutionality when legisla- 40 McGovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreement, Covenants or Conditions in Deed is Unconstitutional, 33 Calif. L. Rev. 5, 27, note 94 (1945) : “ When a dominant race, whether white or Negro, demands separa tion, it is fallacious to say * * * that the intention and effect is not to impose a ‘badge’ of inferiority on the other.” 32 tion appears on its face to be within a specific prohi bition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth # # * “ Nor need we inquire whether similar considera tions enter into the review of statutes directed at particular religions (citing cases), or national (cit ing cases), or racial minorities (citing cases); whether prejudice against discrete and insular minor ities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to he relied upon to protect minorities, anc which may call for a ecrrespoiidiiigLy more searching judicial inquiry. eases. '' I n s u b s e q u e n t r a s e s h i s C oast h a s e s r o h i i s h e i t h e s e s u g - g S B s h m i s a s n u s n s e a m i h r i n r r m i e s m . ; n ~ h I n y a a ss® . - £*,.■-„■( ribse £21 ~ S. £L fflfi. h h h -r i d i s - u u - . : S n i 3 3 S l i d ■ d ' . s u . n - m a i s i e c v s a i . m n a a a s s i l t h y s e e M s e * £ n c ir *Btsasny are ry h e ir ' s r tnEtnrs u im r- nr a u e r m e w h r s e u s e . u r n u u s t r i f a u r a m - d u y « r u d i e anmme ic cqoaSy ~ Ufa Jsesks 3k££S: sari it A ■ ‘~fmistst, ~ i nix-.-£ & iak». 2S r . S. d s 2M: ’ ' All legal restrictions which s m d due rrrd rights cd a sianrit re n a l group art immetdhtey suspect Thai is not to say hoar ail sum restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing 33 public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” Thus, at the very least, this Court requires a stronger show ing of the real difference on which the classification rests, and a more pertinent relationship to the subject matter than is normally the case.41 In dealing with racial discrimination, it follows the same pattern which is used in dealing with interferences with liberties protected under the First Amendment. It does not abide by nor accept the judgment of the legislature but must determine for itself whether a violation of the constitutional * 176 41 See: Takahashi v. Fish & Game Commission, 334 U. S. 410, 420; Oyama v. California, 332 U. S. 633, 640: Shelley v. Kraemer, 334 U. S. 1, 21, 23. See also: Steele v. Louisville & N. R. Co., 323 U. S. 192 and Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210 which, although not directly in point, are links in the development of this principle. It was on the basis of a national emergency that the Court upheld the relocation policy in Hirabayashi v. United States, supra, and in Korematsu v. United States, supra. But see: Acheson v. Murakami, 176 F. 2d 953 (C. C. A . 9th 1949). Although the major emphasis of opinion is on the hardship caused, the court implies rather sharply that the relocation policy was not required by any real danger of sabotage but resulted from the belief of General DeWitt in disloyalty by blood which it likened to the doctrines with which Nazis justified the gas chambers of Dachau. See particularly pages 957-958. Ap parently, although when first presented with the problem in Hira bayashi, supra, and companion cases, the Ninth Circuit did not feel that it could look behind the stated military purpose, now with the war emergency past, it is ready to carefully examine and condemn a policy believed to be grounded on racial bias. 34 guarantee has occurred.42 Whatever the stated purpose of respondents’ action may be, this Court must consider all factors relevant to a determination of its actual and natural effect.43 * * * * 48 The effect here is to deprive petitioner of educa tional opportunities which white persons enjoy as a matter of course. This is that type of unequal treatment which the Fourteenth Amendment was designed to prevent. Since Texas cannot justify this practice in terms of any overwhelming public necessity or emergency, we submit that here as in Oyama v. California, “ * * * there is absent 42 It is sometimes said that where the governmental action is based upon race or color, there is a presumption of unconstitutionality. See: Tussman & ten Broek, op. cit. supra note 2 ; (Notes), 36 Col. L. Rev. 283 (1936), 40 Col. L. Rev. 531 (1940); 41 Yale L. J. (1931) ; Hamilton & Braden, The Special Competence of the Supreme Court, 50 Yale L. J. 1319, 1349-1357 (1941). This appears to be similar to the Court’s placement of freedom of speech, press, assembly and religion in a preferred position. See, e. g., Marsh v. Alabama, 326 U. S. 501, 508; W est Virginia State Board of Education v. Barnette, 319 U. S. 624, 639; but cf. Mr. Justice F rankfurter concurring in Kovacs v. Cooper, 336 U. S. 77, 89, 95; where he denies that any legislation is presumptively unconstitutional which affects rights protected under the First Amendment. It is his view that “ those liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements” . Even under Mr. Justice F rankfurter ’s definition, however, such statutes would be lacking in the presumption of con stitutionality which statutes have dealing with economic and social welfare problems. See: (N ote) 49 Col. L. Rev. 629 (1949). 48 See: Bailey v. Alabama, 219 U. S. 219, 244; Oyama v. Cali fornia, supra; Smith v. Texas, 311 U. S. 128; Pierre v. Louisiana, 306 U. S. 354; Norris v. Alabama, 294 U. S. 587. 35 tlie compelling justification which would be needed to sus tain discrimination of that nature.” 44 Thus, under both measurements, the state has subjected petitioner to an unconstitutional deprivation, and the judg ment of the court below should be reversed. C. The fact that states other than Texas require that racially segregated educational facilities be maintained should not influence this Court’s interpretation of the equal protection clause. 1. The State of Texas may argue that the question pre sented here is a matter about which the legislative judg ment of the state should be given great weight; that since there are a sizable number of states in which segregated educational facilities are required by law, the Court should not here attempt to impose its judgment as to the propriety of such a policy, on the state.45 Respondents may also at- 44 * * * 48 44 Supra, at 640. In Kotch v. Bd. of River Port Pilot Commissioners, supra, this Court approved nepotism as a method of handling the selection of pilots in Louisiana. However, the majority opinion made it clear that the peculiar history of piloting made it feel that there was a very real and valid connection between nepotism and the selection of good pilots, which was statute’s objective. Mr. Justice R utledge dis sented on the grounds that the selection was based upon blood, which he felt, regardless of its merits as a method, the Constitution condemned. 48 Separate schools are required by the constitutional and/or statu tory provisions of the following seventeen states : Ala. Const., Art. X IV , Sec. 256, Ala Code, tit. 52, Sec. 93 (1940); Ark. Dig. Stat., Sec. 11535(c) (Pope, 1937); Del. Const., Art. X , Sec. 2, Del. Rev. Code, c. 71, Sec. 2631 (1935); Fla. Const., Art. XII, Sec. 12, Fla. Stat. Ann., Sec. 228.09 (1943); Ga. Const., Art. V III, Sec. 1, Ga. Code Ann., tit. 32, Sec. 937 (Supp., 1947); Ky. Const., Sec. 187, Ky. Rev. Stat. Ann., Sec. 158.020 (Baldwin, 1943) ; La. Const., Art. XII, Sec. 1; Md. Code Ann., Art. 77, c. 18, Sec. 192 (Flack, 1939); Miss. Const., Art. VIII, Sec. 207, Miss. Code Ann., Sec. 6276 (1942); Mo. Const, Art. XI, Sec. 3, Mo. (Footnote continued on p. 36.) 36 tempt to accomplish, the same result by arguing that the problem presented here is similar to the exercise of the legislative judgment in enacting regulatory statutes to meet various economic problems, e. g., Nebbia v. New York, 291 U. S. 502. It is submitted, however, that experiences of those states which require segregation in public schools are not relevant in determining whether petitioner’s constitu tional rights have been violated. The prevailing opinion on the Court is that a claimed right is encompassed in the constitutional guarantee of due process of law if that right is fundamental to and implicit in our concept of liberty. See Palko v. Connecticut, 302 U. S. 319, 325; Adamson v. California, 332 U. S. 46. In determining whether there has been a deprivation of due process, the Court sometimes looks to the practices and experiences of the forty-eight states and of other jurisdic tions, which have adopted Anglo-American jurisprudence, to see what view prevails as to the right being asserted. See, e. g., In re Oliver, 333 U. S. 257. At times in consid- (Footnote continued from p. 35.) Rev. Stat. Ann., Sec. 10349 (1943 ); N. C. Const., Art. IX , Sec. 2, N. C. Gen. Stat., Sec. 115-2 (1943); Okla. Const., Art. 1, Sec. 5, Okla. Stat., tit. 70, Sec. 455 (as amended Laws 1949, Art. 20, Sec 9 ) ; S. C. Const, Art. X I, Sec. 7, S. C. Code, Sec. 5377 (1942); Tenn. Const, Art. X I, Sec. 12, Tenn. Code A nn, Sec. 2377 (W il liams, 1934) ; Tex. Const, Art. V II, Sec. 7, Tex. Rev. Stat, tit 49 art. 2900 (Vernon, 1942) ; Va. Conn, Art. IX , Sec. 140, Va. Code A nn, tit. 11, c. 33, Sec. 680 (1942 ); W . Va. Const, Art X II, Sec. 8, W . Va. Code A nn, Sec. 1775 (1949). O f this number, however, as indicated ante, Arkansas, Delaware, Kentucky, Mary land, West Virginia and Oklahoma have apparently abandoned this policy at the graduate and professional school level. Thompson, supra note 24. Whether their action means the permanent aban donment of segregation in graduate and professional schools cannot be predicted. Even Texas has admitted a Negro into the medical college of the state university, evidently as a special exception to the general practice of maintaining segregated schools. In the remaining thirty-one states Negroes are freely admitted into the state colleges, graduate and professional schools. 37 eration of this provision, the Court may point to the fact that other states have a rule contrary to the one, which petitioner claims is fundamental, as a basis for its refusal to interfere with the legislative judgment, See, e. g., Lincoln Federal Labor Union v. Northwestern Iron and Metal Company (Mr. Justice F r a n k f u r t e r ’s concurring opinion), 335 U. S. 525. The Court has approached questions of due process of law in this manner because that concept is relatively fluid and vague, and because of a reluctance to confuse wisdom and desirability with considerations of constitutionality. Here, however, no such problem is presented. This Court has stated that the due process clause of the Fifth Amendment forbids governmental action directed against a particular minority since governmental classifications based upon race and color are considered arbitrary. Hirabayashi v. United States, supra, see also Korematsu v. United States, supra; Ex parte Endo, 323 U. S. 283. In light of this interpretation, we submit that, even in the absence of an equal protection clause, respondents’ action would be condemned. 2. Here, however, petitioner is relying upon the equal protection clause of the Fourteenth Amendment. In con sidering whether a person has been denied equal treatment, the basic inquiry is whether white persons are being afforded the same right, privilege or advantage which the state is denying to Negroes. If a particular state affords its white citizens a particular right or privilege, the equal protection clause requires that that right also be granted to Negro citizens on the same basis.46 46 Fairman & Morrison, Does the Fourteenth Amendment Incor porate the Bill of Rightsf 2 Stanford L. Rev. 5, 138-139 (1949); see also: Brief of Committee of Law Teachers Against Segregation in Legal Education, as amici curiae, for discussion of intent of the framers of the 14th Amendment on this point. 38 The Court recognized this in Strauder v. West Virginia, 100 U. S. 303, 306-307. It said: “ It [the equal protection clause of the 14th Amend ment] was designed to assure to the colored race the enjoyment of all the civil rights that under the law [of the state wherein they reside] are enjoyed by white persons, and to give to that race the protection of the General Government, in that enjoyment, when ever 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 of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no dis crimination shall be made against them by law be cause of their color?” Here the Court must determine for itself whether the gov ernmental activity complained of results in discriminatory treatment in violation of the Constitution. And the fact that other states may be guilty of the same disregard of the constitutional mandate does not meet the problem. 3. It is further submitted that it would be improper to consider the practices of those states, which like Texas, enforce a pattern of racial segregation at the graduate and professional school level, in any event. As previously stated, this Court has adopted the view that in economic matters, it has no special competence which wonld warrant the substitution of its view for that of the legislature. A necessary adjunct to this theory of loosely fettered legislation is that the legislators must be subject to political restraint. To this end it is necessary to have an electorate capable of exerting a corrective force, so that the lack of wisdom of the law makers may be dealt with 39 through the normal political processes. The belief of the Court is that as long as freedom of expression is not im paired, the electorate will be able to check legislative im propriety.47 This is the basic reason for the care with which any impairment of freedom of speech is carefully scrutinized, e. g., Thornhill v. Alabama, 310 U. S. 88. However, the Court also carefully scrutinizes threats to religious freedom, protected under the same constitutional provision; but on a different basis. Since minority sects or creeds might be incapable of exerting any real corrective force through normal political processes, the constitution protects them in the exercise of their religious beliefs to secure them against the possible hostility of the dominant majority. The equal protection clause was an extension of this constitutional protection to racial minorities. Recog nition of this factor is implicit in recent decisions of this Court. Oyama v. California, supra; Takahashi v. Fish & Game Commission, supra; Shelley v. Kraemer, supra. 4. Most of those states, which have traditions and prac tices similar to Texas in enforcing racial discrimination, refused in 1866 and 1867 to ratify the Fourteenth Amend ment, because it was felt, and correctly, that the Amend ment would require them to accord to Negroes the same rights accorded to white persons. Those states are Missis sippi, Maryland, Kentucky, Texas, Arkansas, Georgia, Florida, North Carolina, South Carolina, Virginia and Delaware.48 47 Dowling, Constitutional Lazv (1946) explains the Court’s phi losophy thus: “ The underlying theory of the court appears to be that if, by striking down interferences in respect to matters of the mind, it can keep the market place of ideas open and the polling booths acces sible, it will rely upon the ordinary political processes to prevent abuse of power in the regulation of economic affairs. ’ 48 See: Fairman and Morrison, supra note 46, at 90-95. 40 5. These same states are among those involved in the long history of litigation before this Court, culminating in Smith v. Allwright, 321 U. S. 649, because of the relentless ness and recklessness with which they sought to circum vent the guarantees of the Fifteenth Amendment. In spite of the sweeping decision in Smith v. Allwright, supra, some of these states still hope to avoid bowing to the inevitable. See: Bice v. Elmore, 165 F. 2d 387 (C. C. A. 4th 1947), cert, denied, 333 U. S. 875; Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949), cert, denied, 336 U. S. 993; Baskin v. Brown, 174 F. 2d 391 (C. C. A. 4th 1949).49 The efforts of these states to avoid compliance with the Fifteenth Amendment is matched by their efforts to avoid adhering to the requirements of the equal protection clause, and the “ separate but equal” doctrine is merely a part of this pattern. 6. Further segregation places barriers to free and democratic associations. Therefore, the segregated group is not able to readily influence that segment of the public which is not as vitally concerned with his immediate prob lem, as, for example, it was indicated that a labor union might be able to do with respect to legislation concerning the validity of the closed shop. See: Mr. Justice Fbank- etjrteb ’s opinion in Lincoln Federal Labor Union v. North western Iron and Metal Company, supra. Racial isolation in fact strengthens and accentuates the evils which need to be combatted. Prejudice against racial minorities, as this Court has recognized, creates conditions which tend to discount those processes that ordinarily might be relied upon to protect individuals against arbitrary and unreason- 49 See: Key, Southern Politics in the State and Nation (1949) for a comprehensive analysis of the effect of Smith v. Allwright, on the white primary. 41 able governmental action. See: United States v. Carotene Products Co., supra. Any argument that this Court should refuse to measure respondents’ action in terms of the limitations of the equal protection clause, therefore, because states other than Texas practice racial discrimination, should be rejected. Respondents have deprived petitioner of the equal protec tion of the laws in violation of his constitutional rights. For these reasons, it is submitted, the judgment of the Court below should be reversed. II. The decision of the court below improperly applies the equal protection clause of the Fourteenth Amend ment. A. The Fourteenth Amendment was intended to protect Negroes against discriminatory state action. Whatever dispute there may be as to the reach of the Fourteenth Amendment, all agree that one of its primary purposes was to raise the Negro to a status of equality and full citizenship,50 and that the provision established a na tional interest in the maintenance of individual freedom from discrimination based upon race or color.51 Petitioner places his main reliance upon the equal pro tection clause. This provision, as we have stated previ ously, was intended to make certain that all persons simi larly situated receive the same treatment, and particularly, that racial differences should not be the basis of govern mental action. In this case, petitioner contends that he is 50 Strauder v. W est Virginia, supra; Railwav Mail Assn. v. Corsi, 326 U. S. 88, 94. 51 Lusky, supra note 6. See also: Marx, Effects of International Tension on Liberty Under Law, 48 Col. L. Rev. 5S5, 573 (1948). 42 being treated differently, and to bis detriment, in being excluded from the University of Texas solely on account of Ms race. B. Respondents contend that racial segregation in conform ity to the requirements of the “separate but equal” doctrine affords equal protection. Respondents contend that the constitution and statutes of Texas require the state to provide legal training for petitioner in a school separate and apart from that main tained for whites. They contend that the equal protection clause may properly be construed as permitting such an arrangement of the state’s educational facilities, as long as the separate school is equal to the facilities maintained for whites. Moreover, respondents maintain that equality as between the two facilities need not be mathematically precise, but that the constitution is satisfied when the two facilities are “ substantially equivalent” .52 Respondents 52 This term “ substantially equal” has lately been injected as a qualifying limitation of the “ separate but equal” doctrine. It is difficult to perceive exactly what this qualification means. For one of the clearest and frankest definitions of the qualification see page 449 this record. There the Texas Court of Civil Appeals said: “ ‘Equality’ like all abstract nouns must be defined and con strued according to the context or setting in which it is employed. Pure mathematics deals with abstract relations, predicated upon units of value which it defines or assumes as equal. Its equations are therefore exact. But in this sense there are no equations in nature; at least not demonstrably so. Equations in nature are manifestly only approximations (working hypothese) ; their ac curacy depending upon a proper evaluation of their units or stand ards of value as applied to the subject matter involved and the objectives in view. It is in this sense that the decisions upholding the power of segregation in public schools as not violative of the fourteenth amendment, employ the expressions ‘equal’ and ‘sub stantially equal' and as synonymous.” Evidently what is meant by “ substantial equality" is that physical equality to the white school need only be approximated and appears to be an acceptance by the proponents o f the “ separate but equal” thesis o f the inevitability o f d£sa3a£toattio& under a segregate! system. 43 argue that this is what the Court sanctioned in Plessy v. Ferguson, supra; Hall v. DeCuir, 95 U. S. 485; Cummings v. Board of Education, 175 U. S. 528; Chesapeake d Ohio By. v. Kentucky, 179 U. S. 388; Berea College v. Kentucky, 211 U. 8. 45; Chiles v. Chesapeake d Ohio By., 218 U. 8. 71; McCahe v. A. T. d S. F. By. Co., 235 IT. S. 151; Gong Bum v. Bice, 275 U. 8. 78; Missouri ex rel. Gaines v. Canada, 305 IT. 8. 337; Sipuel v. Board of Begents, 332 IT. 8. 631; Fisher v. Hurst, 333 IT. 8. 147; and that these cases compel affirm ance of the judgment of the Court below. In short, respon dents argue that these cases have established a principle whose authority has been unaffected by the Court’s ap proach to the general problem of classification, and its more recent treatment of race and color as an irrational and constitutionally irrelevant criterion. In other words, re spondents would substitute a judicially coined doctrine or phrase “ separate but equal” used as an aid to the interpre tation of an early case for the broad language of the Con stitution itself: “ No state shall * * # deny to any person * * * the equal protection of the laws” in order to restrict the meaning of this provision. Petitioner contends, on the other hand, that (1) the equal protection clause was carefully phrased in terms of its limitations on the power of state government so as to assure the equal treatment of individuals; (2) that the specific purpose of the Amendment was to prevent covert as well as open discrimination based upon race or color; and (3) that discrimination inevitably results wherever the “ separate but equal” doctrine is applied.03 53 53 This will be fully discussed in Part III of the brief. 44 C. The problem with which Plessy v. Ferguson dealt is fundamentally different from the problem presented here, and that case cannot help this Court in making a proper determination of petitioner’s complaint. In Plessy v. Ferguson, a Louisiana statute, which re quired the separation of the races in railroad coach accom modations, was held to be a proper exercise of state au thority under the Fourteenth Amendment as long as the facilities provided for Negroes were equal to those provided for whites. It is true that the Court cited several state cases condoning racial segregation in educational facilities, but the decision itself was necessarily limited to the problem before it. Equality of transportational facilities presents an en tirely different question from that of equality of educa tional opportunities, which is involved here. In transpor tation, the primary considerations are the type of comfort and convenience, courtesy, fare, speed, time of arrival and departure. In determining whether equality of opportunity has been offered in education, one must consider the learn ing process, the types of offerings provided, the necessity of education to the development of citizenship, loyalties and devotion to democratic beliefs, and the development of an individual as a personal and national asset; in short the whole function of education in a democracy. This neces sarily requires consideration of psychological, sociological and spiritual factors in addition to pure physical measure ments. Moreover, even as to transportation the applica tion of Plessy v. Ferguson, has been considerably curtailed 45 by Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28.64 It is to be remembered that Plessy v. Ferguson came to this Court for review of a judgment on a demurrer and that the sole question for consideration was a bare legal proposi tion as to the extent of state power. When that case was de cided, this Court had had no experience in dealing with the type of question raised, and might have believed in all sin cerity that assimilation of the Negro in American culture was impossible and that the experiment which the Four teenth Amendment was launching was liable to end in tragic failure. Experience has since demonstrated that such fears were groundless, and that individual development is deter mined by opportunity and not by race. In addition, the Court had before it no facts to show that racial discrimina tion would be the natural result of the application of the ‘ ‘ separate but equal ’ ’ formula, and it presumed that no such discriminatory effect would result. There this Court said at 550, 551: “ * * * so far, then, as a conflict with the 14th Amend ment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reason able regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reason ableness it is at liberty to act with reference to the established usages, customs, and the traditions of 64 W e believe that the Court’s decision in Plessy v. Ferguson, even as limited to the subject matter of transportation, was wrongly decided. The pernicious effect of that decision on transportation, as has been stated above, has been considerably curtailed by virtue of Morgan v. Virginia, supra, and Bob-Lo Excursion Co. v. Michi gan, supra. It is our hope that decision by this Court in Henderson v. United States, now pending, this term No. 25, will overrule that case. 46 the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we can not say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the 14th Amendment than the Acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislature.” The record in this case, on the other hand, conclusively shows that the separation of the races in Texas with regard to the availability of legal educational opportunities pro duces inequality of treatment and of opportunity, and that such inequality is a direct concomitant of this separation. Whatever may be the view as to the cor rectness of the decision in Plessy v. Ferguson, there are such intrinsic differences between the question dealt with there and those now being raised that it will be of little as sistance in determining whether the equal protection clause requires Texas to admit petitioner to the School of Law of the University of Texas. D. This is not an appropriate case for the application of the doctrine of sta re decisis. If Plessy v. Ferguson, and the other cases cited by re spondents are definitive of the law presently applicable to this ease, we would urge that they be discarded hi light of changed conditions and of the necessity for different rules to meet new conditions. As Ur. Justice Donor as said : s ■ - - ■ ndy be achieved nr".an: • -nil' ■ no. ..■'•.uni ~be a - -rari ng of Ac teens itafc laipcfe Itftgtr upgfejr ess, 47 and through the adapting of others to current facts.” 55 We submit, however, that the cases cited by respondents do not govern this case, and that, therefore, we do not need to meet the problem of the impact of the doctrine of stare decisis on the question raised herein. A discussion of the eases on which respondents rely will demonstrate, we believe, that they have no pertinence to the instant problem.56 * * Cummings v. Board of Education, supra, is cited as adopting the “ separate but equal” formula in the face of 55 Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949). 56 In citing Hall v. DeCuir, supra; Chesapeake & Ohio Ry. Co. v. Kentucky, supra; Chiles v. Chesapeake & Ohio Ry. Co., supra, and McCabe v. A . T. & S. F. Ry. Co., supra, respondents have gone far afield. Those cases involve problems concerning the impact of state regulations upon the national interest in the free flow of com merce. Hall v. DeCuir, supra, struck down, as a burden upon com merce, a Louisiana statute requiring the equal treatment of the races by common carriers. Recently, however, in Morgan v. Virginia, supra, a Virginia statute which required the segregation of the races in interstate commerce was declared unconstitutional for the same reason. And cf. Bob-Lo Excursion Co. v. Michigan, supra, where the Court permitted the application of a state civil rights statute to a carrier operating in foreign commerce on the ground that although regulating foreign commerce, the activities involved were such a peculiar adjunct of local commerce as to require exceptional treat ment. It was further suggested on page 37 that there could be no interference with national interest in the application of a state statute prohibiting racial discrimination since our national policy and policy of Canada were opposed to discrimination based on race. Hence Hall v. DeCuir, supra; McCabe v. A. T. & S. F. Ry. Co., supra; Chesapeake & Ohio Ry. Co. v. Kentucky, supra; and Chiles v. Chesa peake & Ohio Ry. Co., supra, have been stripped almost of any real significance whatsoever. The basic inquiry as to the Chiles case is whether it may still be considered as a precedent for authorizing common carriers to segregate the races in interstate commerce under their own private rules and regulations. That question undoubtedly will be decided this term in Henderson v. United States, supra note 54. 48 the fact that the Court specifically states that this problem was not before it. “ It was said at the argument that the vice in the common-school system of Georgia was the require ment that the white and colored children of the state be educated in separate schools. But we need not consider that question in this case. No such issue was made in the pleadings. Indeed, the plaintiffs dis tinctly state that they have no objection to the tax in question so far as levied for the support of primary, intermediate, and grammar schools, in the management of which the rule as to the separation of the races is enforced. We must dispose of the case as it is presented by the record.” 87 Berea College v. Kentucky, supra, involved the consti tutionality of a Kentucky statute which made it unlawful for any person or corporation to operate a school or college which received both Negroes and whites as pupils. This Court upheld the constitutionality of the statute but was careful to state that it was not considering the validity of its application to individuals.58 Therefore, at most, this decision stands for the proposition that a state may prohibit corporations from accepting students of both races in the same institution without doing violence to the guarantees of the Fourteenth Amendment.59 Even this proposition now seems questionable. At any rate, there is little doubt that a state may exercise greater power in its dealings with corporations than it is permitted in its relations with an individual. 57 At pages 543, 544. 58 At page 54. 59 In granting privileges and _ advantages which it may withhold a state may exact conditions which under ordinary circumstances it would be unable to do. See: Hamilton v. Board of Reaents 293 U. S. 245. y 49 In Gong Lum v. Rice, supra, a Chinese child was denied admission to a white school in her district. She contended that the state conld not group her with Negroes for the pur pose of determining what public school she could attend. No question was raised concerning the power of the state to adopt and enforce a racial classification.60 The gravamen of plaintiff’s contention was that if whites had the au thority and the power to protect themselves against contact with Negroes, who were regarded as peculiar and inferior beings, then Chinese should have the same privilege. ‘ 4 Of course it is the white, or Caucasian race, that makes the laws and construes and enforces them. It thinks that in order to protect itself against the in fusion of the blood of other races its children must be kept in schools from which other races are excluded. The classification is made for the exclusive benefit of the law making race. * # * “ If there is danger in the association [with Ne groes], it is a danger from which one race is entitled to protection just the same as another. The White race may not legally expose the Yellow race to a danger that the dominant race recognizes and, by the same laws, guards itself against * * * ” 61 # * # # # # * “ * # * The White race protects itself against con ditions that would require social contact [with Ne groes]. This, as the Mississippi courts say, to pre serve the integrity of the Caucasian race. But has not the Chinese citizen the same right to protection that the Caucasian citizen has? * * # Can we arro gate to ourselves the superior right to so organize the public school system as to protect our racial integ 60 Brief of Plaintiff-in-Error filed here at page 14 concedes this authority. 61 Id. at 9 and 10. 50 rity without regard to the interests or welfare of citizens of other races ? ” 62 “ It appears, too, from the discussions in the cases and by the note writers that the courts have taken cognizance of the fact that the [Negro] is not de sired as a social equal by the members of the White race, and, therefore, the White race has made its laws with a view to preventing such social contact as would have a tendency to foster social relations and social equality. But this same precaution, taken with respect to its own children, is omitted when it comes to dealing with the children of the other races.” 63 This Court felt that the question raised had been settled by Plessy v. Ferguson. In that we think it was in error. Mr. Chief Justice Taut was of the opinion, apparently, that once plaintiff conceded that the state could classify on the basis of race, which petitioner denies in this case, there was no basis for the argument that it could not classify Chinese and Negroes together for the purpose of receiving public educational advantages. At any rate, Gong Lum v. Rice, cannot be a precedent for the application of the Plessy v. Ferguson formula in the field of education when that ques tion was not before the Court. In Missouri ex rel. Gaines v. Canada, supra, the question presented was whether the State of Missouri had denied to petitioner the equal protection of the laws in excluding him, because he was a Negro, from the only law school main tained by the state. That same question was initially pre sented to the court below in this case. Although the i ‘ sepa 62 Id. at 13, 14. 63 Id. at 17. 51 rate but equal doctrine” was mentioned, the Court held only that it was a denial of equal protection to provide edu cational advantages for whites and deny these advantages to Negroes. That decision is no authority for respondents’ contention that the application of the “ separate but equal” doctrine to a state’s educational system complies with the requirements of the Fourteenth Amendment. In Bipuel v. Board of Regents, supra, this Court decided that a state was under an obligation to afford to Negroes whatever educational advantages it offered whites and at the same time. In the argument here, counsel stated that the constitutionality of the state’s segregation laws was not an issue in the case. For that reason when an original writ of mandamus was sought in the same case, sub nom. Fisher v. Hurst, supra, on the grounds that the setting up of a seg regated school was a denial of equal protection, the Court refused to consider the question. In none of the cases, therefore, on which respondents rely has the “ separate but equal doctrine” been in fact ap plied to determine the reach of the equal protection clause in the relationship of a state to the individual. Moreover, in none of these cases has the doctrine been reexamined. There are no precedents, therefore, to which this Court must give weight which hold that the ‘ ‘ separate but equal ’ ’ doc trine is a valid measure of the individual’s entitlement to equal treatment with respect to the educational advantages a state offers. Therefore, we are left only with Plessy v. Ferguson, which, as we have pointed out, did not involve educational facilities, as a precedent for the application of the “ separate but equal doctrine” in determining the reach of state power under the limitations of the Fourteenth Amendment. And, it is submitted, that case is not appli cable to this problem. 52 III. If this Court considers Plessy v. Ferguson applicable here, that case should now be reexamined and over ruled. We have set out in a preceding section of this brief the reasons for our contention that Plessy v. Ferguson is not pertinent to the issues herein raised, and that decision may be reached here without its being considered. However, if the Court should be of a contrary opinion, then, we submit, Plessy v. Ferguson should be reexamined and overruled. A. The Plessy v. Ferguson Court did not properly construe the intent of the framers of the Fourteenth Amendment. 1. The Court improperly construed the Fourteenth Am end ment as incorporating a doctrine antecedent to its pas sage and a doctrine which the Fourteenth Amendment had repudiated. In Plessy v. Ferguson the Court was required to inter pret the recently adopted Fourteenth Amendment. In find ing its intent and purpose a method was used which was both unusual and fallacious. A series of state cases, but chiefly Roberts v. Boston, 5 Cush. (Mass.) 198, were cited as sources for reading the “ separate but equal” formula into the Fourteenth Amendment.64 In that case, decided in 1849, prior to the adoption of the Fourteenth Amendment, a Negro girl contended that Boston authorities could not 64 Other state cases cited include People v. Gallagher, 93 N. Y. 438; Ward v. Flood, 48 Cal. 36; State, Games v. McCann, 21 Ohio St. 210; Lehew v. Brummell, 103 Mo. 546; Cory v. Carter, 48 Ind. 337; Dawson v. Lee, 83 Ky. 49. It is interesting to note that all these states have now abolished segregation in public schools with the exception of Kentucky. Even there, however, Negroes are attending the graduate and professional schools of the University of Kentucky. See Thompson, supra note 24. 53 require her to attend a segregated school.65 66 The Supreme Court of Massachusetts held that her exclusion from the regular school did not violate any of her rights under the state constitution, since the city had made provision for her education at a separate school equal to the school main tained for whites. This case is the basic source for the finding in Plessy v. Ferguson that the Fourteenth Amend ment condoned racial segregation on a “ separate hut equal” basis. It should be remembered that when Roberts v. Boston, supra, was decided, it was believed that Negroes were in ferior sub-human beings who could never be equal to whites, and Mr. Chief Justice T a n e y in Scott v. Sandford, 19 How. 393, wrote that belief into the fundamental law.68 The Thirteenth, Fourteenth and Fifteenth Amendments repudiated the Dred Scott decision. These constitutional provisions were primarily intended to raise the Negro to a status equal to that of whites, to free and protect him from any stigma, degradation or discrimination which his race, color or previous condition of servitude might other wise invite. Strauder v. West Virginia, supra. Yet in in terpreting one of the constitutional provisions defining this new status, the Plessy v. Ferguson Court looked for its intent and meaning in a pre-Fourteenth Amendment philosophy—a philosophy which the new Amendment spe cifically repudiated.67 Since these were new rights which had _ 65 Her attorney was Charles Sumner, later one of the persons chiefly responsible for drafting and steering through Congress the Thirteenth, Fourteenth and Fifteenth Amendments and Civil Rights Legislation passed thereunder. 66 Historians credit this decision as one of the causes of the Civil War. See: Frazier, op. cit. supra note 20. 67 See Cong. Globe, 42nd Cong., 2d Sess. 3261 (1872); Cong. Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874). 54 been created, the intent of the framers of the Thirteenth, Fourteenth and Fifteenth Amendments should have been the primary sources for determining their meaning and purpose. Had this method been followed, modern scholars are of the opinion that the Court would necessarily have concluded that the “ separate but equal” doctrine was di rectly contrary to objectives which the Fourteenth Amend ment was mean to accomplish.68 2. The framers of the Fourteenth Amendment and of the contemporaneous civil rights statutes expressly rejected the constitutional validity of the “ separate hut equal” doctrine. This Court often recognizes the pertinence and value of an analysis of the intent of the framers of constitutional and statutory law in aid of their interpretation and applica tion.69 Accordingly, it is appropriate in reevaluating the “ sep arate but equal” doctrine as enunciated in Plessy v. Fergu son to refer directly to the official statements of the men who were responsible for the drafting of the Fourteenth Amendment and the legislation passed shortly thereafter to implement it. 68 The brief on the merits of the Committee of Law Teachers Against Segregation in Legal Education filed as amici curiae in this case does a careful and comprehensive analysis of the question. It is their conclusion that the framers of the Fourteenth Amendment meant to prohibit segregation. Tussman & ten Broek, supra note 2, at 342, 356, et seq., indicate that they have reached the same conclusion. See also: (N ote), 49 Col. L. Rev. 629 (1949) to the same effect. Needless to say we believe that Mr. Justice H ar la n ’s dissent in Plessy v. Ferguson was the correct approach to the question. 69 See, e. g., United States v. American Trucking Assn., 310 U. S. 534; The Church of the Holy Trinity v. United States, 143 U. S. 457. See also: Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527 (1947). 55 It became clear shortly after the ratification of the Thirteenth Amendment that it was too limited in scope to insure that the Negro would be able to achieve the equality and freedom from discrimination which were among its major purposes.70 The Congress in 1866 set about com batting the so-called Black Codes enacted by the southern states, which limited the rights of Negroes to own property, institute law suits, testify in any proceedings, and imposed more severe penalties on Negroes than on whites for the same offenses. This legislative effort culminated in the Civil Rights Act of 1866, but in the process of its enact ment the Congress became involved in a complicated se mantical debate over the meaning of the term “ civil rights” . The bill itself emerged as a specific corrective only to certain named abuses and failed to resolve the gen eral problems of equality and segregation.71 Eventually, it became apparent through the debates on the Civil Rights Act of 1866 that a new constitutional amendment was necessary to eliminate all “ discrimination between citizens on account of race or color in civil rights” .72 To avoid the interpretative refinements of “ civil rights” which had plagued the Congress, the more comprehensive “ equal protection of the laws” was used as the key phrase for the statement of the basic principle. Little can be found in the congressional debates relating to the Amendment itself which throws any light on the questions of interpretation here involved. The Amend ment passed both houses easily. But the fifth section of the Amendment authorized implementary legislation, and by the time the Amendment was ratified new waves of dis criminatory state legislation throughout the South required 70 Flack, The Adoption of the Fourteenth Amendment, Ch. 1 (1908). 71 Id., pages 21, 25, 29. 72 Cong. Globe, 39th Cong., 1st Sess., 1290, 1293 (1866). 56 the 42nd Congress to face the task of shaping new practical statutory remedies. The extended debates of this Congress and of its successor, which finally carried through the pas sage of the Civil Eights Act of 1875,73 are of great value in ascertaining the contemporary views and the “ constitu tional intent” of the men who drafted the Amendment.74 The public statements of these men are particularly per suasive in respect to the “ separate but equal” doctrine, for this question was clearly presented, extensively de bated, and conclusively resolved in these hearings. If Plessy v. Ferguson, supra, is the foundation of the theory of civil rights which holds that a Negro is afforded the equal protection of the laws if he gets merely a technical, segregated “ equality” , then it is highly relevant here to go behind that decision in order to demonstrate that the men who were responsible for the Fourteenth Amendment and its accompanying legislation expressly rejected the theory and all of its implications. The hill sponsored by Senator Sumner of Massachu setts was primarily concerned with the prohibition of dis crimination in conveyances, inns, theatres and schools. By its language it was explicit that no segregation, no separa tion of these facilities was to he countenanced. It was pointed out many times that the bill did not permit the establishment of separate facilities even though they might be “ equal” . Senator Sumner said: “ Then comes the other excuse, which finds Equal ity in separation. Separate hotels, separate convey ances, separate theaters, separate schools, separate institutions of learning and science, separate churches, and separate cemeteries—these are the 73 The bill passed the Senate on February 27, 1875, by a vote of 36 to 26, and was approved by the President on March 1st. See Flack, op. cit. supra note 70, at 277. 74 See Fairman and Morrison, supra note 46. 57 •artificial substitutes for Equality; and this is the contrivance by which a transcedent right, involving a transcendent duty, is evaded * * * Assuming what is most absurd to assume, and what is contradicted by all experience, that a substitute can be an equiva lent, it is so in form only and not in reality. Every such attempt is an indignity to the colored race, instance with the spirit of Slavery, and this decides its character. It is Slavery in its last appearance. ’ ’75 Senator Pease of Mississippi at a later date, shortly be fore the bill was passed in the 43rd Congress, states in un equivocal terms: “ The main objection that has been brought for ward by the opponents of this bill is the objection growing out of mixed schools. * * * There has been a great revolution in public sentiment in the South during the last three or four years, and I believe that today a majority of the southern people are in favor of supporting, maintaining, and fostering a system of common education. # # # I believe that the people of the South so fully recognize this, that if this measure shall become a law, there is not a state south of the Mason and Dixon’s line that will abolish its school system. * * * I say that whenever a state shall legislate that the races shall be separated, and that legislation is based upon color or race, there is a dis tinction made it is a distinction the intent of which is to foster a commitment of slavery and to degrade him. The colored man understands and appreci ates his former condition; and when laws are passed that say that ‘ because you are a black man you shall have a separate school,’ he looks upon that, and justly, as tending to degrade him. There is no equal ity in that. “ * # # because when this question is settled I want every college and every institution of learning in this broad land to be open to every citizen, that there shall be no discrimination. ’ ’ 76 75 Cong. Globe, 39th Cong., 1st Sess., 382, 383 (1865). 76 Cong. Globe, 43rd Cong., 1st Session, page 4153 (1874). 58 In the course of these discussions of the “ separate hut equal” doctrine its proponents urged upon their colleagues various state court decisions which had followed it,, viz., Roberts v. Boston and State, Games v. McCann, supra. These cases were expressly rejected as unsound and incon sistent within the meaning and purpose of the equal protec tion clause.77 Yet these are the decisions which form the principal judicial foundation for this Court’s decision in Plessy v. Ferguson. By a vote of 26 to 21 the Senate of the 42nd Congress concluded that “ separate but equal” schools, if established under the aegis of the state or by force of state law, were a violation of the Fourteenth Amendment. This judgment, since it came from the men who best knew why the Amend ment was drafted and what they intended it to accom plish, should he highly persuasive. It should certainly cast doubt upon the soundness of the Plessy decision. These Senators of 1874 and 1875 are among the most cogent and eloquent advocates of the petitioner’s cause in this Court.78 In rejecting the “ separate but equal” theory, 77 See Cong. Globe, 42nd Cong., 2nd Sess. 3261 (1872); Cong. Globe, 43rd Cong., 1st Sess. 4081, 4082, 4116 (1874). 78 This is what the Bill meant to Senator Howe of Wisconsin, Cong. Globe, 43rd Cong., 1st Sess. 4147 (1874): “ * * * the simple justice of the provisions of this bill is self-evident. “ What are they? A command is proposed that no citizen of the United States shall be excluded from the accommodations of inns, of public highways, of public schools, nor shall their remains be excluded from resting in public burial grounds notwithstanding they are black. That is all. A national decree is proposed that a citizen shall have the right to travel along the public thorough fares if he pays his fare, and shall have a right to send his children to the public schools if he meets the charges, although he is not white. That is all. It lays not an ounce of weight upon any man of color but it lifts burdens from some. That is the bill.” 59 Senator Boutwell explained why the concept itself was a contradiction in terms, and a practical impossibility: “ * # * To say, as is the construction placed upon so much of this bill as I propose to strike out, that equal facilities shall be given in different schools, is to rob your system of public instruction of that qual ity by which our people without regard to race or color, shall be assimilated in ideas, personal, poltical, and public, so that when they arrive at the period of manhood they shall act together upon public ques tions with ideas formed under the same influences and directed to the same general results; and there fore, I say, if it were possible, as in the large cities it is possible, to establish separate schools for black children and for white children, it is in the hig'hest degree inexpedient to tolerate such schools. * * * And inasmuch as we have in this country 4,000,000 colored people, I assume that it is a public duty that they and the white people of the country with whom they are to be associated in public affairs shall be assimilated and made one in the fundamental idea of human equality. Therefore, where it would be possible to establish different schools, I am against it as a matter of public policy. “ But throughout the larger part of the South it is not possible to establish separate schools for black children and for white children, that will furnish means of education, suited to the wants of either class; and therefore in all that region of the country it is a necessity that the schools shall be mixed in order that they shall be of sufficient size to make them useful in the highest degree; and it is also important that they should be mixed schools, in order that the prejudice which now pervades portions of our people shall he uprooted by the power of general taxa tion. ’ ’ 79 79 Cong. Rec. 4158, 43rd Cong., 1st Sess. (1874). 6 0 Senator Frelinghuysen searched the underlying princi ples of our government in replying to his opponents: “ If it be asked what is the objection to classifica tion by race, separate schools for colored children, I reply, that question can best be answered by the per son who proposes it asking himself what would he the objection in his mind of his children being ex cluded from the public schools that he was taxed to support on account of their supposed inferiority of race. “ The objection of such a law on our part is that it would be legislation in violation of the fundamental principles of the nation. “ The objection to the law in its effect on society if that ‘ a community is seldom more just than its laws;’ and it would be perpetuating that lingering prejudice growing out of a race having been slaves which it is as much our duty to remove as it was to abolish slavery. “ Then, too, we know that if we establish separate schools for colored people, those schools will he in ferior to those for the whites. The whites are and will be the dominant race and rule society. The value of the principle of equality in government is that thereby the strength insures to the benefit of the weak, the wealth of the rich to the relief of the poor, and the influence of the great to the protection of the lowly. It makes the fabric of society a unit, so that the humbler patrons cannot suffer without the more splendid parts being injured and defeated. This is protection to those who need it. And it is just that it should be so; for of what value is the wealth and talent and influence of the individual if you isolate bim from society? Great as he may be, he is the debtor to society. Let him pay. “ Sir, if we did not intend to make the colored race full citizens, if we propose to place them under the ban of any legalized disability or inferiority, and 61 there to hold them, we should have left them slaves.” 80 One Senator prophesied that under the “ pretense of what is called equality” the result would be to “ grind out every means of education that the colored man can have ’ ’.81 This same fear was echoed by Mr. Justice H arlan in his dissenting opinion in Plessy v. Ferguson?2 The provision with respect to schools was finally deleted from the bill in the House, but this was done as a matter of policy and political expediency. The House merely chose to withhold criminal sanctions with respect to the main tenance of segregated schools—it neither approved such segregation nor did it hold that separate schools were per missible under the Fourteenth Amendment. It merely left this aspect of segregation and discrimination to the courts. For purely practical reasons some of the representa tives felt that the Negro’s chances of obtaining good com mon schools would be better under the Court’s protection than under the proposed remedial legislation.83 Unfor tunately Plessy v. Ferguson infused the 14th Amendment with a meaning which was at odds with the intent of its framers.84 An historical analysis of the intent of those men of the 43rd Congress, who drafted and molded the enforcement acts of the Fourteenth Amendment, clearly indicates that the constitutional hypothesis of “ separate but equal” as 8° j(j_ a£ 3452. 81 Cong. Rec.’ 4173, 43rd Cong., 1st Sess., Mr. Edwards of Vermont. 82 Plessy v. Ferguson, supra, at 552. 83 3 Cong. Rec. 997-998, 43rd Cong., 2d Sess. (1875). 84 Boudin, Truth and Fiction About the Fourteenth Amendment, 16 N. Y. U. L. Q. Rev. 16, 75 (1938); Buck, The Road to Reunion (1937). 62 established in Plessy v. Ferguson, should not be extended to the field of education—particularly at its most vulnerable point—the professional level. We submit, therefore, that it should be overruled. B. Even comparative physical equality is not possible under a system of enforced segregation. This Court has never held, as respondents infer, that there is an irrebuttable presumption of validity to segrega tion statutes. On the contrary, as we have already shown, this Court declared that governmental action which results in discrimination based upon race and color is violative of Constitutional guarantees in the absence of some over whelming public necessity, Oyama v. California, supra. This record is replete with evidence disclosing the discrim inatory consequences of the application of the “ separate but equal” doctrine. Where the treatment accorded peti tioner is admittedly inferior to and different from that ac corded to other persons similarly situated, equality of such treatment can not be assumed, but must be affirmatively determined. In the seventeen states—Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Missis sippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia and the District of Columbia—where segregation is practiced, it is a matter of public knowledge that the Negro schools are not equal to the white schools. This fact has been graphically dem onstrated in the appendix to our petition and brief for writ of certiorari. But a word in summary needs to be said at this time. In those states there are 39 publicly supported institutions devoted to the higher education of the Negro, while there are 192 public colleges and universities for whites. Negroes 63 are approximately 22.3 per cent of the total southern popu lation, but they have 16.9 per cent of the total number of public institutions and comprise only 10.3 per cent of those benefiting by the existence of such schools. Only 5.5 per cent of all expenditures for public institutions in the South were for Negro colleges and universities.85 86 Southern Negroes constitute 7.7 per cent of the total population of the United States; southern whites 26.7 per cent. The South spends 22.3 per cent of the total national sum spent for institutions of higher learning. Negroes get 1.8 per cent of this amount, whereas whites receive 20.5 per cent. Per capita expenditure for whites is $4.28; while that for Negroes is $1.32.®* If expenditures were equalized on a per capita basis, $19,000,000 more per year would be required in higher education alone. Whereas 16 per cent of all white public intsitutions are accredited by the Association of American Universities, 85 See Hearings Before Subcommittee on Appropriations, House of Representatives, 80th Congress, February, 1947, for testimony of Dr. Mordecai W . Johnson, President of Howard University, where he said: “ In states which maintain the segregated system of educa tion there are about $137,000,000 annually spent on higher educa tion. Of this sum $126,541,795 (including $86,000,000 of public funds) is spent on institutions for white youth only; from these institutions Negroes are rigidly excluded. Only $10,500,000 touches Negroes in any way; in fact, as far as state supported schools are concerned, less than $5,000,000 directly touches Negroes * * * The amount of money spent on higher education by the state and federal government for Negroes within these states is less than the budget of the University of Louisiana (in fact only sixty-five per cent of the budget) which is maintained for a little over 1,000,000 people in Louisiana. That is one index; but the most serious index is this: that this little money is spread over so wide an area and in such a way that in no one of these states is there anything approach ing a first-class university opportunity available to Negroes.” 86 The Educational Directory, 1946-47, Vol. I ll, page 7, 16th Census: 1940, Population, 2nd Series, U. S. Summary, page 47; The Journal of Negro Education, Summer, 1947, page 468; U. S. Office of Education, Statistics of Higher Education, 1943-44, page 70. 64 only 5.1 per cent of all Negro public institutions are simi larly accredited. Of all white public institutions 25.6 per cent are accredited only by state departments of education while 33.3 per cent of the Negro institutions are similarly accredited.87 There are 18 law schools, 15 medical schools, 5 colleges of dentistry, 26 schools of engineering, and 13 schools of pharmacy for whites which are accredited. Ex cept for the schools and colleges of Howard University, which is federally supported, there is not one Negro publicly supported graduate or professional school in the country which has received full accreditation.88 “ Whatever other inferences may be drawn from the facts * * * one of the most important and inevitable con clusions is that Negroes in the separate school systems of the states which require racial segregation have been the victims of gross discrimination in the provision of educa tional opportunities * * V ’ 89 The evidence is conclusive that at the graduate and professional school level, there is absolutely no comparative physical equality between the institutions available for whites and those for Negroes.90 Whatever virtues the “ separate but equal” doctrine may 87 The Educational Directory, 1946-7. 88 The Accrediting Agencies; Law— The American Bar Associa tion ; Medicine— The American Medical Association; Dentistry—The Council of Dental Education of the American Dental Association; Engineering— The Engineers Council for Professional Development; Pharmacy— The American Council on Pharmaceutical Education, Inc. The states included in this listing are: Alabama, Arkansas, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Okla homa, South Carolina, Tennessee, Texas, Virginia and West Vir ginia. The Law School for Negroes of Lincoln University, Missouri, has been provisionally accredited by the American Bar Association. 89 Thompson, 16 The Journal of Negro Education, 265 (1947). 90 A Report of Elmo Roper for the Committee on a Study of Discriminations in College Admissions, Factors Affecting the Ad mission of High School Seniors to College (1949)— a comprehensive study showing the extent of discrimination in college admissions. 65 have in theory, in application it has inevitably resulted in discriminatory treatment. As such that doctrine denies the equal protection of the laws. Yick Wo v. Hopkins, 118 U. S. 356. These facts lead to the conclusion that equality, within the meaning of the Fourteenth Amendment, can never be realized under a system of segregation. As one eminent authority, Dr. Alain Locke, stated: “ In the first place few if any communities can afford the additional expense of entirely equal ac commodations, and it would require as much and the same kind of effort as the removal of the social bias of the community and the reform of its conscience to secure general admission of the principle of com plete equity as to secure the abolition of the dual system. Up to a certain point, communities will pay a price for prejudice, but not such an exhorbitant price as complete economic equality requires. As suming that such parity could be reached and con sistently maintained, the moral damage of the situ ation of discrimination would still render the situ ation intolerable. But the argument can and will doubtless be settled or fought out on the practical plane of the school budget. Whenever the standards of Negro public schools are raised to the point that the budget expense approaches parity, there will be less resistance to educational segregation, for one of the main but concealed reasons for discrimination lodges in the idea that the Negro is not entitled to the same educational facilities as the white com munity.” 91 In actuality, states operating under the “ separate but equal” doctrine have always attempted to prevent this Court from reviewing its consequences. See Missouri ex rel. 91 Locke, “ Dilemma of Segregation” , 4 Journal of Negro Educa tion, 407-409. 66 Gaines v. Canada, and Sipuel v. Board of Regents; See also Brief of respondents in opposition to petition for certiorari. In addition, the doctrine has been misconstrued as raising a procedural barrier to test the constitutionality of separate schools (R. 445). The records in the cases eventually re viewed here have uniformly disclosed a total disregard of even the minimum requirements of the “ separate but equal” doctrine. See Gaines case and Sipuel case, supra.92 In all cases where the Court has been presented with facts which purported to demonstrate that equality had been achieved in the spacial separation of the races, the Court has declared that the equal protection clause has been violated. Buchanan v. Warley, supra; Shelley v. Kraemer, supra. Since Plessy v. Ferguson, we have fought two World Wars for the preservation and maintenance of democracy, and have become a signatory of the United Nations Charter which provides that there shall be no discrimination based on race, creed or color.93 This Court now recognizes and accepts as one of its primary responsibilities—the protec tion of minority groups against governmental discrimina tion based upon considerations of race or color. Hira- bayashi v. United States; Shelley v. Kraemer; Takahashi v. Fish and Game Commission; OyamaY. California. Whatever reasons may have caused the Court to adopt the “ separate but equal” formula in Plessy v. Ferguson, the whole history of its application conclusively proves that 92 In neither the Gaines case nor the Sipuel case was there any provision at all made for the legal education of Negroes, even in a segregated institution, until the decision by this Court. In this case, although respondents have relied upon the “ separate but equal” doc trine ab initio, no efforts were made to offer petitioner any type of legal facilities until almost two years after the institution of this action. 93 Articles 55 and 56. 67 it has not, does not and cannot provide the equal protection which the 14th Amendment sought to secure. The fact that physical equality has not resulted, when the “ separate but equal” doctrine has been applied, is no accident. Segregation is grounded in a belief in Negro inferiority. Eecognizing this fact, social science experts are in universal agreement that segregation and racial dis crimination are necessarily one and the same. IV. This record discloses the inevitability of discrimina tion under the “separate but equal” formula. A. Negro and white college and graduate school facilities in Texas. Dr. Charles H. Thompson, an authority in education whose unexcelled qualifications as an expert witness are amply set forth in the record (R. 229-233), made a docu mented, scientific study of the comparative educational facilities for Negroes and whites in Texas at petitioner’s request (R. 233-4). Analyzing the situation on the basis of the best recognized criteria, Dr. Thompson found, in sub stance, as follows: 1. Physical Facilities. The combined asset value of the plant facilities of the thirteen white state-supported schools above the high school level was in excess of $72,000,000; that of Prairie View, the only Negro school of “ higher learning” , was slightly more than $4,000,000 (R. 239 and 241). This is less than half of the proportionate amount which would be allocated on the basis of the Negro population of the state. Although we believe such a standard to be as pernicious as the “ sepa- 68 rate but equal” doctrine itself, it would seem that this at least would be the minimum requirement of the doctrine. On a per capita basis, $28.66 was invested in plant assets for every white person; $6.40 for every Negro (R. 241). The per student appropriation at Prairie View is much less than that found to exist at a small white teachers col lege (R. 249). Texas provided through state-supported four-year institutions for 66.8 per cent of its white college students, but for only 31.8 per cent of the Negro students (R. 252). 2. Current Expenditures. In 1943-44, $11,071,490 in state, county and district funds was appropriated for higher education in Texas. The amount of $10,858,018 was appropriated to white institu tions, i. e., $1.98 per capita to every white citizen. The sum of $213,472 was appropriated to Negro schools, or 23 cents per capita. The white institutions thus received 8.06 times more funds than were allocated to the Negro institutions (R. 246). 3 . Curriculum. In Texas there are 106 undergraduate fields of specializa tion in the white state-supported institutions, and only 49 in the Negro institution, Prairie View (R. 255). Texas A. & M., a white state-supported institution, has 45 depart ments of specialization as compared with 13 at Prairie View, a ratio of more than 3 to 1. On the other hand, a number of trade courses on the high school level are given at the Negro university, Prairie View, such as mattress making, auto mechanics, carpeting, laundering, and dry cleaning (R. 255). These skills are usually taught in high schools or vocational schools of secondary school rank (R. 356). On the graduate level, the investigation reveals that a total of 69 159 Negroes received graduate degrees during approximately a five-year period, as contrasted with some 3,000 white stu dents (R. 257). Moreover, the range of subjects in white graduate schools is considerably wider (R. 257). Dr. Thompson stated: “ The National Survey of Higher Education for Negroes, to which I have referred, a U. S. Office [of Education] publication, indicated in 1942 that the Texas state supported higher institutions for whites offered graduate work in 65 fields and 5 for Negroes” (R. 257). The University of Texas, at the present time, gives ten different types of graduate degrees in forty fields. Prairie View gives a Master’s Degree in thirteen fields (R. 257). White institutions gave 212 doctorates (R. 258). No Negro institution is qualified to give any degrees at this level. 4. Faculty. In comparing the faculty of white and Negro schools of higher learning in Texas, Dr. Thompson stated that two key factors must be considered, namely, salary and train ing (R. 261). In order to attract and retain a good teach ing staff, faculty members must be paid good salaries and find the working conditions satisfactory. Dr. Thompson’s study disclosed that twenty-five teachers were lost to other institutions within the past five years because of the in ability of Prairie View to match their salary offers (R. 262). It further revealed that the median salary of a full pro fessor at Prairie View is $2,025, while the lowest salary paid to a full professor in a state-supported white college is $2,700 (R. 262). As to training, the picture is the same. In 1945-46, only 9.3 per cent of the faculty members of Prairie View had degrees on the doctorate level (R. 263). 70 5. Library. The University of Texas Library had 750,974 titles. Prairie View had 25,000. Even a white college, such as East State Teachers College with a smaller student body (1,205 students as compared to Prairie View’s 1,619), had 81,974 volumes in 1945-46 (R. 264). The library of the Negro College was found by an impartial survey committee to be inadequate even for undergraduates, not to speak of its complete inability to meet the needs of graduate students (R. 265). 6 . Standing in the educational w orld and com m unity. Prairie View is not accredited by The Association of American Universities nor by any of the national pro fessional councils (R. 266). It is regarded as a “ poor college” ; it is not a “ real university” (R. 267). Three white state institutions are accredited by The Association of American Universities (R. 266). A Negro student at Prairie View cannot get the type of undergraduate or graduate education that is available to the white student of the state. Since this case was started, Texas has established at Houston the University for Negroes. The disparities which Dr. Thompson’s study re vealed may not now be accurate as to specific detail. It is submitted, however, that the picture remains the same although its contours may have varied somewhat. In the face of these facts Texas cannot now be heard to say that it has provided “ separate but equal” college and graduate school facilities for Negroes. Even the testimony for respondents concedes this to be true. Dean Pettinger, a witness for respondents who has studied educational facilities for Negro and white students 71 in Texas for thirty years, stated: “ I am unable to think for the moment of [any] colored institutions and white institutions which do have equal facilities with which I have been associated” (R. 333). B. The two law schools compared. The picture at the law school level is no brighter. When petitioner applied for a legal education the only law school in existence maintained by the State of Texas was the one at the University of Texas (R. 425). The University of Texas has been in existence since the last century. The law school has been in existence for more than fifty years and is recognized and accredited by every association in the field (R. 90-91). The Negro school had just been opened in March, 1947 and was not accredited by any agency (R. 25, 96). 1. Physical plant. The proposed Negro law school was to be set up in the basement94 of a building in downtown Austin consisting of three rooms of moderate size, one small room and toilet facilities (R. 36). There were no private offices for either the members of the faculty or the dean. The space for this law school had been leased for a period from March to Au gust 31, 1947 at $125 a month, and the authorities were negotiating for a new lease after that period (R. 41). It was freely admitted that “ there is no fair comparison in monetary value” between the two schools (R. 43). There was no assurance as to where the proposed law school would be located after August 31st, and it was not even certain as to what city it would be in after August 31st (R. 52-53). 94 Pictures of the building of the Law School at the University of Texas and the basement quarters of the so-called Negro Law School appear in the record at pages 385-387 and 389. 72 2 . Library. While the law school at the University of Texas had a well-rounded library of some 65,000 volumes (R. 133), the proposed Negro school had only a few books, mostly case books for use of first-year students (R. 21-22). However, the students at the proposed law school for Negroes had access only to the law library in the state capitol directly across the street, a right in common with all other citizens of the State of Texas (R. 45). A library of approximately 10,000 volumes had been requisitioned on February 25, 1947 (R. 40), but was not available for use at the time of the trial of this case (R. 44). The University of Texas law school had a full-time, qualified and recognized law librarian with two assistants (R. 139). The Negro law school had neither librarian nor assistant librarians (R. 74, 80, 128). It was admitted that the library at the state capitol, a typical court library and not a teaching library, was not equal to the one at the University of Texas, and did not meet the standards of the Association of American Law Schools (R. 134, 138, 145). It was also admitted that even if the requisitioned books were actually obtained the library would not then be equal to the library already in existence at the law school of the University of Texas (R. 151). 3 . Faculty. The University of Texas Law School has a faculty con sisting of sixteen full-time and three part-time professors (R. 369-371). The proposed faculty for the Negro school was to consist of three professors from the University of Texas who were to teach classes at the Negro school in ad dition to their regular schedule at the University of Texas (R. 59, 84, 87).95 The comparative value in the difference be- 95 It was also shown that offices for the dean and faculty members involved were to remain at the University of Texas (R . 46-47). 73 tween full-time and part-time law school professors was freely acknowledged, and it was admitted that the pro posed “ faculty” did not meet the standards of the Associ ation of American Law Schools (R. 59, 91-92). 4 . Student body. There were approximately eight hundred fifty students at the law school of the University of Texas (R. 76). From the record it appears that all qualified students other than Negroes were admitted. There were no students at the proposed Negro school at the date of opening nor at the time of the trial (R. 162). Although several Negroes had made inquiry concerning the school, none had applied for admission (R. 162). If petitioner had entered this school he would have been the only student. The law school of the University of Texas had a moot court, legal aid clinic, law review, a chapter of Order of the Coif, and a scholarship fund (R. 102-105). None of these were present or possible in the proposed Negro law school, and Charles T. McCormick, dean of the two law schools,, testified that he did not consider these to be factors material to a legal education but rather, that they were ‘ ‘ extraneous matters” (R. 106). Thus Texas has provided all the facilities at the Uni versity of Texas which are essential to achieving the objec tives of a modern law school, and the Negro law school can in no way be said to be equal or substantially equal to this school. When we examine the concept “ equally” semantically, we find that it is a purely relative term. One cannot com pare a state-supported law school, whose student body is composed solely of Negroes, to a state-supported law school whose student body includes various groups (with the ex- 74 ception of Negroes)-—whose study of the law is benefitted by a mutual interchange of ideas and attitudes. Even if, for the sake of argument, the physical facilities offered at both schools were the same, “ not even the most mathe matically precise equality of segregated institutions can properly be considered equality under the law ’ ’,96 It is no accident, no coincidence, that whenever segre gation is decreed and enforced, you will find inequality. The facts are, as we have indicated, that in the state of Texas as well as in the other 16 states and the District of Columbia, discrimination and inequality in education, fol low inevitably and inexorably from the mere fact of segre gation. We have demonstrated above that the psychological effects of a segregated professional education are harm ful to the segregator and segregatee alike, because in addi tion to the inferior educational opportunities offered at the “ separate” school—the very fact of separation lessens their value or “ social location” . In regard to the measurable physical aspects of profes sional education, the record has shown that gross inequali ties exist whenever segregation is practiced. Similarly, social scientists have attested to the psychological and social ills which result from enforced racial segrega tion.97 The results of authoritative studies prepared by educators, psychologists, legal scholars and social scientists are all in agreement with petitioner’s contentions that: there can fee no separate equality. 96 Report of the President’s Committee on Civil Rights, To Secure These Rights 82 (1947). 97 For an exhaustive study of a cross-section of veterans living in a large American city with regard to how environmental factors are associated with hostility towards minority groups see: Bettleheim and Janowitz, Dynamics of Prejudice, A Psychological and Socio logical Study of Veterans (1950) passim. 75 Conclusion Historically, the prevailing ideology of our democracy has been one of complete equality. The basic law of our land, as crystallized in our Constitution, rejects any dis tinctions made by government on the basis of race, creed, or color. This concept of true equality has become synony mous with what is generally defined as “ the American Creed” . Moreover, this creed has become a symbol of hope for people everywhere. In petitioner’s state of Texas, the educational facilities available to him are governed by the “ separate but equal” doctrine. He is asked to believe, in spite of the overwhelm ing evidence to the contrary, that he can secure “ equal” educational opportunities in a school set apart from his fellow citizens. For him, the American Creed is but an attractive idea—not a reality. Education is not a passive concept. The acquisition of information and special skills, transmitted through the medium of education, enables a citizen to live intelligently as well as productively. To the extent that petitioner is in any way denied the same educational facilities available to other citizens of his state, both he and his fellow citizens are limited in their opportunity to fully participate in our democratic way of life. Petitioner contends that a com plete and proper education cannot be attained under the “ separate but equal” doctrine of Plessy v. Ferguson. 76 W h e r e f o r e , it is respectfully submitted that the judg ment of the Court below should be reversed. U. S im p s o n T a t e , F r a n k l in H. W il l ia m s , Of Counsel. R o b e r t L. C a r t e r , W . J . D u r h a m , W il l ia m R. M in g , J r ., J a m e s M . N a b r it , T h u rg o o d M a r s h a l l , Attorneys for Petitioner. A n n e t t e H. P e y s e r , Research Consultant. February 25, 1950. p 212 [ 7 6 9 7 ] Lawyers Press, I nc., 165 William St., N. Y . C. 7 ; ’Phone: BEekman 3-2300 NUMBER 9684 IN THE Court o f Civil Appeals For the Third Supreme Judicial District of Texas, at Austin, Texas HEMAN MARION SWEATT, Appellant, versus THEOPHILUS SHICKEL PAINTER, ET AL., Appellees, APPEALED FROM THE DISTRICT COURT OP TRAVIS COUNTY BRIEF FOR APPELLANT W. J. D u r h a m of Dallas T h urg o o d M a r s h a l l of New York Attorneys for Appellant. I N D E X PAGE Statement of the Nature of the Case_________ __1 Points Upon Which the Appeal is Predicated_____ 2 Preliminary Statement ______________________ 3 First Point—The Court erred in sustaining appel lees’ special exception to allegation 3 of appel lant’s second supplemental petition. (Re-stated) 5 Statement Under First Point_________________ 5 Authorities Listed __________________________ 7 Argument and Authorities Discussed__________ 7 Second Point—The Trial Court erred in excluding the testimony of the witness, Dr. Charles H. Thompson, with reference to the quantity and quality of education offered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last question on p. 387 to p. 469, inclu sive). (Re-stated) ___________ ’______________ 10 Statement Under Second Point ______ ------------ 10 Authorities Listed __-____________________ ___ 10 Argument and Authorities Discussed-------------- 11 11 PAGE Third Point—The Court erred in excluding the evi dence of the appellant as to the admission of Donald Murray to the law school of the University of Maryland and the results thereof in a situa tion analogous to the instant case, as shown in appellant’s bill of exception, as fully set out (8. F. pp. 478-482). (Ee-stated) __________________ 14 Statement Under Third Point_________________ 14 Argument ______________________________L____ 16 Fourth Point—The Court erred in holding that the proposal of the State to establish a racially seg regated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. (Re-stated) ______________ 16 Statement Under Fourth Point __________ .1___ 16 Argument and Authorities Listed _____________ 20 I Courts have invalidated racial classifications imposed by states in a great variety of situa tions as denials of equal protection of the law 20 II The doctrine of racially “ separate but equal” public facilities is merely a constitutional hypothesis which has no application where racial segregation is shown to be inconsistent with equality _____________________________ 24 Ill III The demonstration in this record that raci ally separate schools in fact and inevitably deny the equality required by the Fourteenth Amendment, precludes the application of any “ separate but equal” doctrine in the field of PAGE public education and in the circumstances of this case _________________________1______ 36 A. The law school set up by appellees does not meet the requirements of the Four teenth Amendment___________________ 36 B. The law school set up by appellees cannot meet the requirements of the Fourteenth Amendment _______.______________ -___ 40 C. The function of a state-supported law school_____ i_________________________ 43 D. The expert testimony introduced at the trial establishes that there is no rational justification for segregation in profes sional education and that substantial dis crimination is a necessary consequence of any separation of professional students on the basis of color_______________— 49 Conclusion ____________________________________ 63 Table of Cases PAGE Aiken v. Woodward (Tex. Civ. App.), 241 S. W. 1117 3 Alston v. School Board, 112 F. (2d) 992__.___________ 21 Brown v. Mississippi, 297 U. S. 278 ______________ 21 Buchanan v. Warley, 245 U. S. 60_________________ 21 Carter v. Texas, 177 U. S. 442 ___________________ 21 Chambers v. Florida, 309 U. S. 227 _______________ 21 Cummings v. Richmond County Board of Educa tion, 175 U. S. 528 ___ _______________________ 33 Elmore v. Rice, et al., Unreported (U. S. D. C. E. D. So. C.) 7/12/47 ______________________________ 24 Gong Lum v. Rice, 275 U. S. 78___ _____________ ____ 34 Harmon v. Tyler, 273 U. S. 668___________.'______ _ 21 Hill v. Texas, 316 U. S. 400______________________ 21 Hirabayashi v. U. S., 320 U. S. 8 1 _______________31, 32 Lane v. Wilson, 307 U. S. 268 ____________________ 23 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ____,3, 34 Morgan v. Virginia, 328 U. S. 373 ________________ 25 Newman, Ex parte, 14 Wall 132, 20 L. Ed. 877_____ 3 Norris v. Alabama, 294 U. S. 587 ____ ____________ 21 Panhandle Grain & Elevator Co. v. Dowling, 247 S. W. 873 ________ ______________________ ;_____ 11 Pearson v. Murray, 169 Md. 478, 182 A. 540 _______ 3 Pierce v. Allen, et al., 278 S. W. 453 _______ ______ 7,9 Pierre v. Louisiana, 306 U. S. 354 _________________ 21 Plessy v. Ferguson, 163 U. S. 537 ____________ . 29, 30,33 Railway Mail Association v. Corsi, 326 U. S. 88___ 22 Richmond v. Deans, 281 U. S. 704 ___________ ...___ 21 Ridgeway v. City of Ft. Worth, 243 S. W. 704___ ___ 3 Roberts v. Boston, 5 Cush. 198___________________ 30 iv V San Antonio Traction Co. v. Higdon, 123 S. W. PAGE 732 ________________________________________10,12 Smith v. Fort, 58 S. W. (2d) 1080 ________________ 7 Smith v. Texas, 311 U. S. 128_______________ ____ _ 21 Standifer v. Bond Hardware Co., 94 S. W. 144____ 7 Steele v. L. N. R. R. Co., 323 IJ. S. 192__________ 33 Strauder v. W. Va., 100 U. S. 303, 306, 307, 308 ___ 26, 28 Ward v. Flood, 48 Cal. 36____ ___________________ 3 Ward v. Texas, 316 U. S. 547 _________________ __ 21 Ware v. Schaeffer, et al., 29 S. W. 756 ___________ 11 Wertzman, et ux. v. Lee, 262 S. W. 859 ___________ 7 White v. Texas, 309 U. S. 631___________________ 21 Authorities Cited American Jurisprudence 35, Sec. 377, p. 115_______ 3 American Teachers Association Study on The Black and White of Rejections for Military Service (1944) ______________________________________ 52 Ballantine, H. W., The Place In Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918)___________ 39. 42 Boyer, Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Oregon Law Rev. 281 (1941)_________________________ 38,42,44 Brown, Esther Lucile, Lawyers and the Promotion of Justice (1938)________________ 1__________ 42, 46 Cantril, IJ., The Psychology of Social Movements (1941) _______ /_________________________ ___ 51 Chairman’s Address, ABA Section on Legal Edu cation, 1 Am. Law School Rev. 337 (1905)_____ 48 Clark, Contrast: The Full Time Approved Law School Compared With The Unapproved Evening School, 20 ABA Journal 548 (1934)________ 42 Clark, W. W., Los Angeles Negro Children, Educa tional Research Bulletin (1923)__________ 52 V I PAGE Dunbar, Charles E., Address before the AALS on the ABA Program in the Field of Legal Education and Admission to the Bar and the Part-Time School Problem, Handbook, A. A. L. S. (1939)_ 48 Horack, Law Schools of Today and Tomorrow, 6 Am. Law School Rev. 658 (1927)_____________38,42 Johnson, Charles S., Patterns Negro Segregation (1943) ______________________________________ 50 Klineberg, Otto, Negro Intelligence and Selective Migration (1935) 52 Mangum, Charles S., Jr., The Legal Status of the Negro (1940) ______________ 50 Maxwell, Lawrence, Jr., Chairman’s Address, Sec tion of Legal Education of the ABA, 1 Am. Law School Rev. 337 (1905) _ ___________ 42 McCormick, C. T., The Place and Future of the State University Law School, 24 N. C. Law Rev. 441__ 44 McGovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreements, Covenants or Conditions in Deeds is Unconsti tutional, 33 Cal. Law Rev. 5 (1945)_______ A___ 53 McWilliams, Carey, Race Discrimination and the Law— S cience an d S o cie ty , Vol. IX No. 1 (1945) 50 Myrdal, Gunnar, An American Dilemma (1944)_„27, 50,51 Peterson & Lanier, Studies in the Comparative Abili ties of Whites and Negroes— M e n t a l M easu re m e n t — M o n og k aph s , 5 :1-156, 1929_____________ 52 President’s Address—17th Annual Meeting AALS, 4 Am. Law School Rev. 337 (1919)_____________ 48 Reed, A. Z., Present Day Law Schools (1928)_____ 42 Reed, A. Z., Social Desirability of Evening or Part Time Law Schools, 7 Am. Law School Rev. 198 (1931) _____________________________ ________ 42,46 Report of the 36th Annual Meeting AALS, 9 Am. Law School Rev. 233 (1938), Consolidation of Legal Education in Dallas___ ____________ _____38,47 Vll Snyder, The Function of the Night Law School, 7 Am. Law School Review 827 (1933)___________ 42 Stone, Harlan F., Address, 17th Annual Meeting AALS, 4 Am. Law School Rev. 483 (1919)_____ 42 Storey, Progress in Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938)____________ _____ 38,48 Texas Constitution, Sec. 7, Art. 7________________ 4 Thompson, Charles H., Some Critical Aspects of the Problem of the Higher and Professional Educa tion for Negroes— J ournal, of N egro E ducation (Fall 1945) _________________________________ 60 Townes, John C., Organization and Operation of a Law School, 2 Am. Law School Review 436_...— 39 University of Texas Publication—No. 4529, August 1, 1945, School of Law_______________ ________ 37 Vance, The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914)-------- 42, 44 Weltfish, G-ene, Causes of Group Antagonism—J our n a l of S ocial I ssues, Vol. 1__________________ PAGE 51 NUMBER 9684 IN THE Court o f Civil Appeals For the Third Supreme Judicial District of Texas, at Austin, Texas H e m a n M ario n S w e a t t , Appellant, versus T h e o p h il u s S h ic k e l P a in te r , et al., Appellees. APPEALED PROM THE DISTRICT COURT OP TRAVIS COUNTY BRIEF FOR APPELLANT Statement of the Nature of the Case This is an action in mandamus. Heman Marion Sweatt, appellant, on May 16, 1946, filed an application for a writ of mandamus in the 126th District Court of Travis County, Texas, against the members of the Board of Regents of the University of Texas, the acting Presi dent, the Dean of the School of Law and the Registrar of said University. The application for mandamus al leged that appellant was fully qualified for admission to the School of Law of the University of Texas, had duly applied for admission and had been refused admission solely because of his race or color in violation of the 2 Constitution and laws of the United States and of the State of Texas. On June 26, 1946 the Court entered an order that the action of appellees in denying admission to the appellant was a denial of appellant’s constitutional right to the equal protection of the laws, but issuance of the writ1 was stayed for six months to permit the State of Texas to establish a separate law school for Negroes substantially equivalent to the one at the University of Texas. On December 17, 1946, the Court below denied the writ of mandamus. To the judgment, appellant ex cepted and gave notice of appeal. The Court, on March 26,1947, set aside the judgment of the Trial Court and re manded the cause generally. The case was then tried in the Court sitting without a jury, and a final judgment was rendered against appellant denying the application for writ of mandamus and taxing the cost against appel lant. From this judgment appellant now appeals. POINTS UPON WHICH THE APPEAL IS PREDICATED First Point: The error of the Court in sustaining appellees’ special exception to allegation 3 of appel lant’s second supplemental petition. Second Point: The error of the Court in exclud ing the testimony of the witness, Dr. Charles H. Thompson, with reference to the quantity and quality of education offered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last ques tion on p. 387 to p. 469, inclusive). (Re-stated) 3 Third Point: The error of the Court in exclud ing the evidence of the appellant as to the admission of Donald Murray to the law school of the University of Maryland and the results thereof in a situation analogous to the instant case, as shown in appellant’s bill of exception, as fully set out (S. F. pp. 478-482). Fourth Point: The error of the Court in holding that the proposal of the State to establish a racially segregated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. Preliminary Statement The appellant possesses all of the academic qualifi cations for admission to the law school (S. F. 265). This established a prima facie case for the issuance of the writ of mandamus.1 The burden of proof thereupon shifted to appellees to vindicate their conduct.2 This well recognized rule of procedure is required by Texas courts.3 1 Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Pearson v. Murray, 169 Md. 478, 182 A. 540 (1936); Ward v. Flood, 48 Cal. 36 (1874). 2 35 Am. Jur. Sec. 377, at 115, “ . . . Where, however, [in man damus proceedings] the right and duty appears, the burden of proving matter set up by way of excuse for failure to act, or of justifying such failure to act, rests upon the respondent or defen dant.” To the same effect see 38 C. J. Sec. 671 at 915; Ex partê Neuman, 14 Wall 152, 20 L. Ed. 877 (1871); see also Missouri ex rel. Gaines v. Canada, supra; Pearson v. Murray, supra. 3 Ridgeway v. City of Ft. Worth, 243 S. W . 704 (1922); Aiken v. Woodward (Tex. Civ. App.), 241 S. W. 1117 (1922). 4 The appellant was refused admission to the law school solely because he was a Negro (S. F. 70, 144, 265). Had appellant been a member of any other racial group there is no question that he would have been admitted to the law school. The appellees in refusing admission of appellant to the law school claimed to be acting pursuant to the Con stitution and laws of the State of Texas, specifically Section 7, Article 7 of the Constitution of Texas (S. F. 70).4 The entire defense of appellees is based upon this constitutional provision. Although the constitutionality of the separate school laws of Texas was directly in issue as a result of the pleadings in the case and the evidence presented at the trial, appellees made no effort whatso ever to support the validity of these statutes and obvi ously have relied solely on a presumption of constitu tionality. The Trial Court, however, denied the petition for a writ of mandamus on the grounds that a separate law school for Negroes offering “ substantially equal” 5 facili ties had been established and that “ the constitutional right of the State to provide equal educational oppor tunities in separate schools” was “ well established and long recognized by the highest State and Federal Courts.” 4 Section 7 of Article 7 of the Constitution of Texas provides: “ Separate schools shall be provided for the white and colored chil dren and impartial provision shall be made for both.” 5 The decision of the Trial Court first appealed from was based upon a theory of “ substantial” equality. Despite the reversal of that decision the Trial Court continued in the belief that “ substan tial” equality meets the requirements of the Fourteenth Amendment and thereby ignores both the true meaning of equality and the purpose of the Fourteenth Amendment. 5 The record in the instant case for the first time pre sents testimony and documentary evidence clearly estab lishing that: (1) There is no rational basis for racial classifi cation for school purposes. (2) Public schools, “ separate but equal” in theory are in fact and in practical administration consistently unequal and discriminatory. (3) It is impossible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to sepa rate schools. FIRST POINT The Court erred in sustaining appellees’ special exception to allegation 3 of appellant’s second sup plemental petition. (Re-stated) Statement Under First Point The trial of this case was concluded on the 16th day of May, 1947; and judgment was entered on the 17th day of June, 1947 (see Tr. p. 64). The appellant’s attorneys were not present at the time the judgment was entered and exception sustained by the Court. The Court allowed appellant’s exception to the Court’s ruling sustaining said exception (see Judg ment of the Court, Tr. p. 64). 6 Appellees filed their first amended answer upon which the case went to trial. Allegation 2, Section 2 of said amended answer reads as follows: “ Said Prairie View University was originally established in the year 1876 as an industrial and mechanical college for colored youths of Texas, and since that date, has been enlarged in scope to include other subjects as need therefor arose” (see Tr. p. 24). In reply to such allegation, appellant filed his second supplemental petition and alleged as follows: “ And further specially pleading herein, Rela tor respectfully shows he was compelled to go out of the State of Texas, to-wit, in 1937 to the Uni versity of Michigan for the purpose of doing grad uate study in medical bacteriology and immunol ogy and preventive medicine, which were offered to .white students at the University of Texas, but which was not offered at Prairie View University, the only school of higher learning for Negroes in Texas and supported by public funds.” “ And Relator further alleges that Prairie View University did not, in 1937, offer equal education facilities to him which were available to whites at that time, at the University of Texas and other state-supported schools in Texas, nor does it now offer equal education facilities to him which are now available to whites at The University of Texas and other state-supported schools for whites in Texas” (see Tr. p. 20). 7 Authorities Listed Rule 80 of the Rules of Civil Procedure promulgated by the Supreme Court of Texas. Pierce v. Allen, et al., 278 S. W. 453 (Syllabus 3); Standifer v. Bond Hardware Co., 94 S. W. 144 (Syllabus 1); Smith v. Fort, 58 S. W. (2d) 1080 (Syllabus 5). Argument and Authorities Discussed It is elementary in this state that a litigant may not attack his own pleadings. Appellees raised the issue by their pleading as to the quantity and quality of educa tion offered at Prairie View College, alleging in sub stance that the State of Texas had furnished the appel lant the training in Prairie View College since 1876 which he was seeking in The University of Texas; that State of Texas, through Prairie View College, had offered the appellant the same quality and quantity of education that the State of Texas was offering to white citizens at other white institutions of learning, particularly The University of Texas and other state colleges, supported by public funds. This issue, having been raised by the appellees in their pleadings, could not be attacked by the appellees themselves. This appears to be holding in Wertsman, et ux. v. Lee, 262 S. W. 859 (Syllabus 6, Writ of Error refused by Supreme Court of Texas). The appellees raised the issue of the quantity and quality of education at Prairie View College, and took the position that the appellant had no right to reply to such defense. The quality and quantity of education offered appellant and citizens of the white race was one of the ultimate 8 issues in this law suit, and the burden to establish the fact that the State of Texas did not furnish appellant the quantity and quality of education offered white citi zens was on appellant, before he was entitled to the re lief sought. To say that the rule in Texas with reference to plead ing is to allow the defendant to plead special defensive matter which goes to the heart of the plaintiff’s cause of action; and that the plaintiff may not reply is equivalent to saying that the plaintiff may not have his day in Court on defensive matters pleaded by defendant. This is not the rule under the decisions in Texas. Appellant replied to appellees ’ allegation as to the quantity and quality of education given at Prairie View College by supplemental petition. Rule 80 of the Rules promulgated by the Su preme Court of Texas for the trial of civil cases provides that a supplemental petition filed by the plaintiff may contain special exceptions, general denial, and the alle gation of new matters not before alleged by him in reply to those which have been alleged by the defendant. The allegation stricken from the record by the Court’s order was in reply to matters pleaded by the appellees. Judge R obert W. Stayton, in an address before the Dallas Bar Association October 4,1941, interpreting Rule 80, stated: “ The Texas supplemental pleading is as be fore. The plaintiff may employ special exceptions, is deemed to have denied the affirmative allega tions of the defendant, must specially plead all af firmative matters, and must use the equivalent of an answer in response to affirmative claim on de fendant’s part. Here again, the difference between the federal practice and the Texas practice lies in 9 the desire of the Texas rules to maintain a frame work for the case.” In this case, appellees followed the rules promulgated by the Supreme Court in answering the matters of de fense alleged by the appellees and the interpretation placed on Rule 80 by the Rules Committee; hut the learned Trial Court struck out the answer contained in appellant’s supplemental petition and left the appellees’ allegation and special defense unanswered; and his judg ment says that the appellant has no right to answer such defensive matters. The higher courts in this state have decided the purpose and function of a supplemental peti tion; and the decisions of the higher courts, we believe, support the contention of appellant in this case. In Pierce v. Allen, et al., supra, Chief Justice J a c k s o x , speaking for the Amarillo Court of Civil Appeals, dis posed of this issue in the following language: “ The office of a supplemental petition is to reply to the answer of the defendant. It may set up new matters via confession and avoidance of the new matters pleaded in the answer or may contain additional facts responsive to such new matter which would entitle the plaintiff to affirmative re lief. ’ ’ It is obvious that the issue raised by the pleadings here under discussion raised a material issue, for if the State of Texas had afforded the same quantity and qual ity of education to the appellant as it furnished to the white citizens of Texas, there would be no controversy. The issue here raised was the determining factor in this law suit, and we submit that the learned Trial Court erred in sustaining such exception. 10- SECOND POINT The Trial Court erred in excluding the testimony of the witness, Dr. Charles H. Thompson, with ref erence to the quantity and quality of education of fered at the universities and colleges, other than Prairie View College, maintained by the State of Texas (S. F. beginning with the last question on p. 387 to p. 469, inclusive). (Re-stated) Statement Under Second Point We adopt statement under First Point as the state ment under this Point. The case was concluded as before stated on the 16th day of May, 1947; and the judgment was actually ren dered on June 17, 1947, at which time, the appellant’s attorneys were not present, but the Trial Court allowed appellant’s exception to the ruling of the Court, excluding such evidence as shown (Tr. p. 64). And as a part of the statement under this Point, we refer to the testimony of the witness, Dr. Charles H. Thompson (S. F. pp. 380- 469, inclusive). (To copy the entire testimony of Dr. Thompson in this brief would do violence to the rules governing the preparation of briefs.) Authorities Listed Pule 3/3 of the Rules of- Civil Procedure promulgated by the Supreme Court of Texas for trial of civil cases. San Antonio Traction Company v. Higdon, 123 S. W. 732 (syllabi 1, 2, 3, and 4); 11 Ware v. Schaeffer, et al., 29 S. W. 756 (syllabus 1, Supreme Court of Texas); Panhandle Grain & Elevator Co. v. Dowling, 247 S. W. 873 (syllabus 20). Argument and Authorities Discussed The issue as to the quantity and quality of education was raised by the first amended answer of the appellees and the second supplemental petition of the appellant. A reading of the appellant’s second supplemental peti tion and the appellees first amended answer will leave no doubt in our opinion with reference to the issue being raised as to the quantity and quality of education at the other educational institutions maintained by the State of Texas, and the quality and quantity of education offered at Prairie View College. The ultimate issue in this law suit is the quantity and quality of education offered appellant by the State of Texas and the quantity and quality of education offered other citizens not of the same race as appellant at the universities and colleges main tained and supported by the State of Texas, from which appellant is excluded. The appellees contended that the appellant’s constitutional rights had not been violated for he was offered the same quantity and quality of edu cation at Prairie View College as was offered to the white citizens of Texas at the universities and other colleges of Texas. These issues were squarely joined, appellees alleging that the State of Texas had met its obligation by furnishing the same quantity and quality of education to appellant at Prairie View College as the State of Texas furnished its white citizens at the universities and other 1 2 colleges supported by the State of Texas, from which appellant was excluded. The appellant denied such alle gation and alleged.that the State of Texas had never offered the same quantity and quality of education at Prairie View College as is offered at The University of Texas and other colleges supported by the State of Texas. Thus, a material issue was joined by the pleadings of the parties. The testimony excluded was in support of appel lant ’s theory that the same quantity and quality of educa tion was not offered and had never been offered at Prairie View College, as the quality and quantity of education offered at the universities and other colleges of Texas other than Prairie View. The learned Trial Court, by its judgment, says that the appellant had no legal right to dispute such allegation or to offer any testimony tending to disprove such ma terial defense. We, therefore, submit that the Trial Court erred. This question is not an open question in the courts of Texas. The question has been decided many times by the courts of Texas and contrary to the holding of the learned Trial Court. In the case of San Antonio Trac tion Co. v. Higdon, Justice Neal, speaking for the Court upon a similar question as the question here presented, used the following language: “ The meaning of the word ‘ relevant’ as applied to testimony is that it directly touches upon the issues which the parties have made by their plead ing so as to assist in getting at the truth of it. It is not necessary, however, that it should itself bear directly upon the points in issue, for, if it be but a link in the chain of evidence tending to prove 13 the issue by reasonable inference, it may neverthe less be relevant. From these elementary principles, it logically fol lows that to determine the relevancy of evidence, the pleadings of the parties must first be looked to for the purpose of ascertaining the issue.” The Coui’t further said: “ But the Court’s determining in this manner what the issues of fact will under the evidence be, sub mitted to the jury cannot serve as a test for deter mining the relevancy of evidence introduced or offered upon the trial. Such tests can only be the ■ pleadings of the parties for it is from them the issues of fact and of law primarily arise.” When the rule of law set out above as to the test of the issues raised is considered and the record in this case is examined, it is in our opinion too clear for argument that the testimony of the witness, Dr. Charles H. Thomp son, was relevant as well as material to the issues of fact alleged in appellees’ first amended answer and appel lant’s second supplemental petition. If the judicial mind is focused upon the pleadings in this case, it will be per ceived that the issue of the quantity and quality of educa tion offered at the universities and other colleges sup ported by the State of Texas, other than Prairie View, was clearly raised, and that such issue was a material issue in the final determination of this law suit. We, therefore, submit that the learned Trial Court erred in sustaining appellant’s exception to the testimony of the witness, Dr. Charles H. Thompson, and excluding the same. 14 THIRD POINT The Court erred in excluding the evidence of the appellant as to the admission of Donald Murray to the law school of the University of Maryland and the results thereof in a situation analogous to the instant case, as shown in appellant’s bill of excep tion, as fully set out (S. F. pp. 478-482). (Re-stated) Statement Under Third Point The testimony at the trial of this cause was not put on in the regular order by agreement of counsel (S. F. 8). The testimony of Donald Murray was tendered in the middle of the trial and was excluded (8. F. 477-478). (To copy this entire testimony in this brief would do violence to the rules governing preparation of briefs.) This testimony appearing in appellant’s bill of exception shows that Donald Murray in a situation closely similar to the case at bar was denied admission to the law school of the University of Maryland and was admitted only after legal action. Despite beliefs that he would be ostracized and denied full participation, he was not ostracized or segregated, took part in all of the classes, participated in all activities and did not receive any un favorable treatment on the part of any student or pro fessor (S. F. 481). With the exception of separation of the races on buses and trolley cars in Austin there is no item of segregation in Austin that is not present in Balti more, Maryland (S. F. 481). Later in the trial during the testimony for appellees the following took place : “ Q. I will ask you whether or not you think the Negro student would have the same oppor- 15 tunity to develop leadership in a mixed institution, or at a separate institution? A. I think that nor mally, ordinarily, he would have a better oppor tunity to develop leadership in a separated insti tution than in a mixed institution, and I make that statement because the whole life of the insti tution would then be open to the Negro’s partici pation. My judgment is that particularly in the south, that the Negroes’ opportunities in institu tions patronized in the great majority by whites would be limited to the class room facilities, and the regular educational activities almost wholly. Mr. Durham: Just a minute. Now, Your Honor, they have objected to that form of testimony. I don’t want to object to it, if I have got a right to reopen my testimony. I won’t object, if I have got a right to tender certain testimony that the Court excluded yes terday. The Court: Of course, if it is the same, if this is admissible in rebuttal, testimony on your side would be admissible. Mr. Durham: No objection” (S. F. 534, 535). The same witness was permitted to testify as to his experiences with a Negro student at the University of Colorado in 1935 or 1936 and his opinion as to his lack of participation in college activities (S. F. 544-545). At the close of this testimony counsel for appellant again tendered the testimony of Donald Murray, and it was again excluded (S. F. 559). 16 Argument The issues involved in this case are clear. There is no question as to. the qualifications of appellant for a legal education. Appellees seeks to justify their refusal to admit him upon the provision of the Texas Consti tution requiring separation of Negro and other pupils. In an effort to defend the validity of these provisions appellees contend that separation of the Negro from other citizens is for the best interest and introduced testimony tending to show that Negroes are not accepted in school life where admitted to mixed schools. The same witness testified as to the dire results to be expected if Negroes are admitted in the law school of the University of Texas. It is, therefore, clear that the testimony of Donald Murray was not only germane to the issues in this case but was also clearly admissible in rebuttal to the testimony of appellees. FOURTH POINT The Court erred in holding that the proposal of the State to establish a racially segregated law school afforded the equality required by the equal protec tion clause of the Fourteenth Amendment to the Constitution of the United States and thus justified the denial of appellant’s petition for admission to the law school of the University of Texas. (Re-stated) .... Statement Under Fourth Point The issues in this case are clear. There has never been any question of the qualifications of appellant for legal training. He applied for admission to the only law 17 school maintained by the State of Texas and was refused admission solely because of his race and color. Appel lees defend their action by relying upon Section 7 of Ar ticle 7 of the Constitution of Texas requiring separate schools for “ white and colored children.” i In the pleadings and evidence in the case, appellees relying on the Constitution of Texas claim that separate schools must he maintained and that they are complying with the other provision of the section requiring that “ impartial provision shall be made for both,” by the establishment and maintenance of Prairie View Univer sity for Negroes and a new school to be established, and that this complies with the requirements of the Four teenth Amendment by establishing “ substantial” equal ity. Appellant’s position is that insofar as this provi sion of the Constitution of Texas deprives him of the right to attend the law school of the University of Texas, it is unconstitutional and in violation of the Fourteenth Amendment. Although Negroes have always been excluded from the University of Texas because of their race or color (S. F. 95), the State of Texas has never offered them “ separate but equal” facilities (S. F. 94-96). As Dean Pettinger, a witness for appellees who has studied edu cational facilities for Negro and white students in Texas stated: “ I am unable to think for the moment of col ored institutions and white institutions which do have equal facilities with which I have been associated” (S. F. 547). When appellant applied for a legal education the only law school in existence maintained by the State of Texas was the one at the University of Texas. He was 18 refused admission solely because of his race or color. At the time of the refusal and at the time this case was filed there was no other law school available. Equally qualified white students who applied at the same time have received more than a year of legal education fur nished by the State of Texas in an institution with more than sixty years of tradition and in a well equipped, well recognized and fully accredited law school. The University of Texas has been in existence since the last century. The law school has been in existence for more than fifty years. The present law school was built in 1906 or 1907 (S. F. 81). The law school is rec ognized and accredited by every association in the field (S. F. 31). It is approved by the American Bar Asso ciation (S. F. 11), and is a member of the Association of American Law Schools (S. F. 159). No law school can be accredited by either association in less than two years of continual compliance with its requirements (S. F. 21, 45, 159). After this suit was filed, the State of Texas acting- through its agents sought to establish some form of law school for Negroes in Houston in February, 1947 (see testimony of E. L. Angell, S. F. 46-59, 483-488). Be tween February and March 10, 1947, according to the testimony of appellees, efforts were made to establish a law school for Negroes in Austin. The so-called Austin school supposed to be ready for use on March 10th was to be in the basement of a building (S. F. 147) leased on February 28 until August 31, 1947 with an alleged op tion to lease until August 31, 1948 (S. F. 70, 81). No one knows for certain what will happen after that time although one of appellees’ witnesses assumed it would go to Houston (S. F. 88, 91). Dean Charles T. McCor- 19 rnick of the University of Texas and former president of the Association of American Law Schools, called by the appellees testified: “ Q. As a former President of the American Association of Law Schools, and as the Dean of several law schools, and as an outstanding author ity in several fields of law, Dean McCormick, do you—are you of the opinion that one of the basic elements in a great law school is the history and traditions which have been built up over years of time, including the graduates who have become famous in the State of Texas ? Is that your opin ion—that is an element in a great law school1? A. Yes, that is a source of pride to a law school that has that background. “ Q. One other question on that along that same line. Is it, in your opinion, a good thing for a law school to be unstable as to its location, and to its faculty, sort of a roving school of law? Is that, in your opinion, an unsatisfactory condition in which to operate a law school? A. I would think that a roving law school would certainly not be an ideal school” (S. F. 163-164). It is admitted by the Chairman of the Board of Rfe- gents of the University of Texas that no fair comparison can be made of the monetary value of the law school building at the University of Texas and those of the pro posed law school for Negroes (8. F. 74). When the Negro law school was to be ready for use on March 10th there was no library other than a few text-books (S. F. 150) and no librarian (S. F. 124) despite the fact that there was a well equipped library at the University of Texas with a full time librarian and assistants to aid the students (S. F. 230-231). Although students at the Negro school were to be permitted to use 20 the library in the capital it was admitted that this would not meet the requirements of the accrediting associa tions (S. F. 240). The books claimed to be on order were only requisitioned on the 25th of February (S. F. 69) and were not available on March 10 or the date of trial (S. F. 76). The proposed faculty for the law school consisted of professors from the University of Texas who would give part time to the Negro school. No plans whatsoever were made for moot-court, scholarship aid or law review similar to the University of Texas. On the basis of what was available on March 10th, the proposed date for open ing the Negro school and the time of trial of this case the highest claim made by the appellees was that it fur nished facilities “ substantially” equal (S. F. 16). 'Much reliance was placed on facilities such as building, library, faculty and other items to be furnished in the future. On the other hand, appellant produced testimony and documentary evidence showing the inequality of the existing and proposed facilities and the discrimination inherent in a segregated system. The testimony of these experts which cannot be accurately digested stands un contradicted in this record. ARGUMENT AND AUTHORITIES LISTED I Courts have invalidated racial classifications imposed by states in a great variety of situa tions as denials of equal protection of the law. The Sup/eme Court has repeatedly struck down state statutes and practices imposing racism in diverse areas 21 of human activity. In judicial procedure for example, the Supreme Court has at every opportunity made it plain that racial distinctons are not to be tolerated. Whether in the exclusion of Negroes from the grand jury which has indicted a Negro,1 or in similar petit jury ex clusion,2 or in the intimidation or coercion of a Negro ac cused of crime,8 the Court has undertaken to see that judicial proceedings from preliminary investigation to judgment are free of racism. A state is not permitted to impose residential segre gation by debarring Negroes from owning or occupying property in particular areas.4 Distinction may not be made between white and colored public school teachers in the fixing and payment of salaries.5 On the affirma tive side, the Supreme Court has found no difficulty in up holding a statute requiring labor unions to admit quali fied Negroes to membership, and, in so doing has pointed out that its ruling is in line with the fundamental policy of the Fourteenth Amendment: “ A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amend ment which was adopted to prevent state legisla tion designed to perpetuate discrimination on the 1 Carter v. Texas, 177 U. S. 442; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400. TT Bi orris * v- Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 b. 354. v- Mississippi, 297 U. S. 278; Chambers v. Florida, 316 U S 547 ’ WMte V' TeXaS’ 309 U’ S- 631; Ward v- Texas’ TT Buchanan v. Warley, 245 U. S. 60; Harmon v. Tyler, 273 U. 8. 668; Richmond v. Deans, 281 U. S. 704. ■m ^ s*on V- School Board, 112 F. (2d) 992 (certiorari denied, 011 U. b. 693). basis of race or color. We see no constitutional basis for the contention that a state cannot pro tect workers from exclusion solely on the basis of race, color or creed by an organization, functioning under the protection of the state, which holds it self out to represent the general business needs of employees. “ To deny a fellow-employee membership be cause of race, color or creed may operate to pre vent that employee from having any part in the determination of labor policies to be promoted and adopted in the industry and deprive him of all means of protection from unfair treatment arising out of the fact that the terms imposed by a domi nant union apply to all employees, whether union members or not. In their very nature, racial and religious minorities are likely to be so small in number in any particular industry as to be unable to form an effective organization for securing set tlement of their grievances and consideration of their group aims with respect to conditions of em ployment. The fact that the employer is the Gov ernment has no significance from this point of view. ’ ’ 8 The history of the attempts of states to establish segregation in primary elections deserves special men tion. Here, for a long time the theory was urged that Negroes could not complain if they were excluded from the “ white” primary but left free to conduct their own primary. As late as 1935 this sterile legalism based upon theory dissociated from the realities of voting and elec tions prevailed in judicial decision. Even the Supreme 6 6 Railway Mail Association v. Corsi, 326 U. S. 88, at page 94 (1945). Court seemed unmindful of the broader significance of its declaration in another connection that: “ . . . The Amendment [15th] nullifies sophis ticated as well as simple-minded modes of discrim ination. It hits onerous procedural requirements which effectively handicap exercise of the fran chise by the colored race although the abstract rights to vote may remain unrestricted as to race.” 7 aiid followed this unrealistic legalism as to primaries and thereby disfranchised 540,565 adult Negro citizens in Texas alone. Recently, however, reexamining the segregated pri mary election device in the light of its actual conse quences, the Supreme Court has outlawed the white pri mary as a discriminatory and unconstitutional device, whether in Federal or state elections. The extent to which realism has prevailed in this field over a legalism dissociated from the actualities of human behavior is well illustrated by the following excerpt from an opinion handed down by the District Court of the United States for the Eastern District of South Carolina only a few months ago in granting an injunction restraining officials of the Democratic Party from excluding Negroes from voting in primary elections in South Carolina. “ And so we are faced with the final decision as to whether or not the present Democratic Party of South Carolina, because it is no longer gov erned by State statutes, is a private organization and (as was said in argument) must be treated as a private business or social club, with which the State and National Governments have no concern; 7 Lane v. Wilson, 307 U. S. 268, 275. 24 or is it after all the determining body in the choice of National and State officers in South Carolina, or to use the old homely illustration, is it the same horse although of a somewhat different color! * * * * * * * * * “ I am of the opinion that the present Demo cratic Party in South Carolina is acting for and on behalf of the people of South Carolina; and that the Primary held by it is the only practical place where one can express a choice in selecting federal and other officials. Racial distinctions can not exist in the machinery that selects the officers and lawmakers of the United States; and all citi zens of this State and Country are entitled to cast a free and untrammelled ballot in our elections, and if the only material and realistic elections are clothed with the name ‘ primary’, they are equally entitled to vote there.” 8 II The doctrine of racially “separate but equal” public facilities is merely a constitutional hy pothesis which has no application where racial segregation is shown to be inconsistent with equality. Classifications and distinctions based on race or color aave mo moral or legal validity in our society. They are cor.:vary :o our cons::nation and laws, and the United S.a os Sum erne Court aas struck town statutes, ordi nances mm M ia v u r . M o m -.es se>. v t i t mm establish, suck classi- icauous. a; to Moctsioets ■ '_t Mtrasstsre trans- tvasuea tun; v none edaestiocu however, mar Court has adey-.eu a ittbSien-j ..yad anatkocteSM. Tdnnai dec- 25 trine under which racial separation is deemed permissible when equality is afforded. An examination of these de cisions will reveal that the “ separate but equal” doctrine is at best a bare constitutional hypothesis postulated in the absence of facts showing the circumstances and conse quences of racial segregation and based upon a fallacious evaluation of the purpose and meaning inherent in any policy or theory of enforced racial separation. Many states have required segregation of Negroes from all other citizens in public schools and on public conveyances. The constitutionality of these provisions has seldom been seriously challenged. No presumption of constitutionality should be predicated on this non action. A similar situation existed for many years in the field of interstate travel where state statutes requir ing segregation in interstate transportation were con sidered to be valid and enforced in several states for generations and until the Supreme Court in 1946 held that such statutes were unconstitutional when applied to interstate passengers.9 Although separate school laws have been enforced by several states, an examination of the cases in the United States Supreme Court and lower courts will demonstrate that these statutes have never beem seriously challenged nor their validity examined and tested upon a record adequately presenting the critical and decisive issues such as are presented by the record in this case: (1) Whether there is a rational basis for racial classification for school purposes. (2) Whether public schools, “ separate but equal” in theory are in fact and practical administra- _ _ ______ tion consistently unequal and discriminatory. 9 Morgan v. Virginia, 328 U. S. 373 (1946). 26 (3) Whether it is possible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to separate schools. The Thirteenth, Fourteenth and Fifteenth Amend ments were adopted for the purpose of securing to a recently emancipated race , all the civil rights of other citizens.10 Unfortunately this has not been accomplished. The legislatures and officials of the southern states through legislative policy continued to prevent Negro citizens from obtaining their civil rights by means of actions which only gave lip service to the word “ equal.” One of the most authoritative studies made of the prob lem of the Negro in the United States points out that: “ While the federal Civil Rights Bill of 1875 was declared unconstitutional, the Reconstruction Amendments to the Constitution—which provided that the Negroes are to enjoy full citizenship in the United States, that they are entitled to ‘ equal benefit of all laws,’ and that ‘ no state shall make or enforce any law which shall abridge the privi leges and immunities of citizens of the United States’—could not be so easily disposed of. The Southern whites, therefore, in passing their vari ous segregation laws to legalize social discrimina tion, had to manufacture a legal fiction of the same type as we have already met in the preceding dis cussion on politics and justice. The legal term for this trick in the social field, expressed or implied in most of the Jim Crow statutes, is ‘ separate, but equal.’ That is, Negroes were to get equal accom modations, but separate from the whites. It is evident, however, and rarely denied, that there is 10 Strand er v. West Virginia. 100 U. S. 303. 27 practically no single instance of segregation in the South which has not been utilized for a significant discrimination. The great difference in quality of service for the two groups in the segregated set ups for transportation and education is merely the most obvious example of how segregation is an excuse for discrimination. Again the Southern white man is in the moral dilemma of having to frame his laws in terms of equality and to defend them before the Supreme Court—and before his own better conscience, which is tied to the Ameri can Creed—while knowing all the time that in reality his laws do not give equality to Negroes, and that he does not want them to do so.” 11 * In one of the early cases interpreting these amend ments it was pointed out that: “ 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, he looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discrimination against them had been habitual. It was well known that, in some States, laws making such discriminations then existed, and others might well be expected. . . . They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the 14th 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 11 An American Dilemma, by Gunnar Myrdal, published by Harper & Bros. (1944), Vol. 1, pages 580, 581. 2 8 race the protection of the General Government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizen ship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.” 12 Mr. Justice Strong in this opinion also stated: “ The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive im munity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal dis crimination, implying inferiority in civil society, lessen ing the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” * 18 The equal protection clause of the Fourteenth Amend ment to the Constitution clearly guarantees to every citizen the right to complete equality as to all facilities of the state wherein the citizen resides. Yet, it has been argued that state statutes requiring the segregation of the races do not violate the Fourteenth Amendment. This doctrine has been based upon state court decisions and certain language in opinions of the United States Su preme Court. It is unfortunate that the first case to reach the Su preme Court on the question of whether or not segre gation of Negroes was a violation of the Fourteenth Amendment should come to the Supreme Court during 12 Strauder v. W est Virginia, supra, at page 306. 18 Strander v. West Virginia, supra, at pages 307-308. 29 the period immediately after the Civil War when the Fourteenth Amendment was regarded as a very narrow limitation on state’s rights. The first expression by the Supreme Court of the doctrine of “ separate but equal” facilities in connection with the requirements of equal protection of the law ap pears in the case of Plessy v. Ferguson.14, That case in volved the validity of a state statute of Louisiana re quiring segregation on passenger vehicles. The peti tioner there claimed that the statute was unconstitu tional and void. A demurrer by the State of Louisiana was sustained, and ultimately the United States Supreme Court affirmed the judgment of the Louisiana courts in holding that the statute did not violate the Thirteenth Amendment nor did it violate the Fourteenth Amend ment. Mr. Justice B r o w n in his opinion for the ma jority of the Court pointed out that: “ A statute which implies merely a legal dis tinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude . . . ” Mr. Justice B r o w n , in continuing, stated that the ob ject of the Fourteenth Amendment was to enforce abso lute equality before the law but: “ . . . Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have 44 163 U. S. 537, 543. 30 been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. . . . ” 15 16 It should be noted that this case was based solely on the pleadings, and that there was no evidence either be fore the lower courts or the United States Supreme Court on either the unreasonableness of the racial dis tinctions or of the inequality resulting from segregation of Negro citizens. The plaintiff’s right to “ equality” in fact was admitted by demurrer. The decision in the Plessy case appears to have been based upon the decision of Roberts v. Boston, 5 Cush. 198 (1849), a case decided before the Civil War and before the Fourteenth Amend ment was adopted. In the Plessy case, the majority opinion cites and relies upon language in the decision in the Roberts case and added: “ It was held that the powers of the Committee extended to the establishment of sepa rate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools.” 18 Mr. Justice H a r l a n in his dissenting opinion pointed out that: “ In respect of civil rights, common to all citi zens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights Every true man has pride of race, and under appropriate circum- 15 Plessy v. Ferguson, supra, at page 543. 16163 U. S. 537, 545. 31 stances, when the rights of others, his equals be fore the law, are not to be affected, it is his privi lege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed such legislation as that here in question is inconsistent, not only with that equality of rights which per tains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.” and “ There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citi zens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surround ings or of his color when his civil rights as guar anteed by the supreme law of the land are involved. It is therefore to be regretted that this high tri bunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.” More recent decisions of the Supreme Court support Mr. Justice H a k l a n ’ s conclusion.17 In re-affirming the invalidity of racial classification by governmental agen cies, Chief Justice Stone speaking for the Court stated: “ Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason legislative classification or 17 Hirabayashi v. United States, 320 U. S. 81, 100 (1943). 32 discrimination based on race alone has often been held to be a denial of equal protection. ” 18 In the same case, Mr. Justice M u r p h y filed a concur ring opinion in which he pointed out that racial distinc tions based on color and ancestry ‘ ‘ are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war.” 19 Mr. Justice M u r p h y in a concurring opinion in a case involving discrimination against Negro workers by a railroad brotherhood acting under a federal statute (Railway Labor Act) pointed out: “ Suffice it to say, however, that this constitu tional issue cannot be lightly dismissed. The cloak of racism surrounding the actions of the Brother hood in refusing membership to Negroes and in entering into and enforcing agreements discrim inating against them, all under the guise of Con gressional authority, still remains. No statutory interpretation can erase this ugly example of economic cruelty against colored citizens of the United States. Nothing can destroy the fact that, the accident of birth has been used as the basis to abuse individual rights by an organization pur porting to act in conformity with its Congressional mandate. Any attempt to interpret the Act must take that fact into account and must realize that the constitutionality” of the statute in this respect depends upon the answer given. ‘ ‘ The Constitution voices its disapproval when ever economic discrimination is applied under authority of law against any race, creed or color. A sound democracy cannot allow such discrimina tion to go unchallenged. Racism is far too virulent 18 Hirabayashi v. United States, supra. 19 Ibid, at page 110. 33 today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation. ’ ’ 20 The doctrine of “ separate but equal” treatment rec ognized in Plessy v. Ferguson was arrived at not by any study or analysis of facts but rather as a result of an ad hominem conclusion of “ equality” by state courts. As a matter of fact, the United States Supreme Court has never passed directly upon the question of the valid ity or invalidity of state statutes requiring the segrega tion of the races in public schools. The first case on this point in the United States Supreme Court is the case of Cummings v. Richmond County Board of Edu cation.21 The Board of Education of Richmond County, Georgia, had discontinued the only Negro high school but continued to maintain a high school for white pupils. Petitioner sought an injunction to restrain the Board from using county funds for the maintenance of the white high school. The Trial Court granted an injunc tion which was reversed by the Georgia Supreme Court and affirmed by the United States Supreme Court. The opinion written by Mr.' Justice Harlan expressly ex cludes from the issues involved any question as to the validity of separate schools. The opinion pointed out: “ It was said at the argument that the vice in the common-school system of Georgia was the re quirement that the white and colored children of the state be educated in separate schools. But we need not consider that question in this case. No such issue was made in the pleadings.” 20 Steete v. L. N. R. R. Co., 323 U. S. 192 at page 209 (1944). 21175 U. S. 528 (1890). 34 In the case Gong Lum v. Rice,22 23 the question was raised that the right of a state to classify Chinese as colored to force them to attend schools set aside for Negroes. In that case the Court assumed that the ques tion of the right to segregate the races in its educational system had been decided in favor of the states by previous Supreme Court decisions. The third school case is Missouri ex rel. Gaines y. Canada.2* This was a petition for a writ of mandamus to compel the officials of the University to admit a Negro to the University’s law school. The state court con strued the state’s separate school laws as requiring sep aration in schools of higher education. Although the state university for Negroes had no law school, the state court construed applicable state laws as requiring the establishment of a Negro law school “ whenever neces sary or practical” and pending the establishment of such a school to provide out-of-state aid to qualified Negro applicants. This, according to the state court, met the requirements of the Fourteenth Amendment. On certiorari to the United States Supreme Court, it was held that offering an opportunity for legal education, outside the state pending possible establishment of a Negro law school in futuro within the State, did not con stitute equal educational opportunities. The narrow issue recognized by the Court was whether the state court’s denial of the writ, deprived the petitioner of the equal protection of the laws. In reversing the state court, Mr. Chief Justice H u g h e s for the majority said: “ The peti tioner is entitled to be admitted to the law school of the State University in the absence of other and proper 22 275 U. S. 78 (1927). 23 305 U. S. 337 (1938). 35 provision for Ms legal training within the state.” The issue as framed by the Court made unnecessary to its decision any holding as to what the decision might be if the state had claimed to be offering petitioner oppor tunity for legal education in a Negro law school then in existence in the state. Obviously that issue was not before the Court.24 Segregation in public education helps to preserve and enforce a caste system which is based upon race and color. It is designed and intended to perpetuate the slave tradition sought to be destroyed by the Civil War and to prevent Negroes from attaining the equality guaranteed by the federal Constitution. Racial separation is the aim and motive of paramount importance—an end in itself. Equality, even if the term be limited to a comparison of physical facilities, is and can never be achieved. The only premise on which racial separation can be based is that the inferiority and the undesirability of the race set apart make its segregation mandatory in the interest of the well-being of society as a whole. Hence the very act of segregation is a rejection of our constitu tional axiom of racial equality. The Supreme Court in Plessy v. Ferguson, as we have seen, without any facts before it upon wMch to make a * *4 It is true that despite the fact that the Court’s position on the validity of a separate law school for Negroes was not necessary to its decision, the Court by way of dictum made the following obser- va ion after referring to the state’s obligation to provide substan- students • advantages for higher education to Negroes and white J r 6 .®tate ^as sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.” 36 valid judgment adopted the “ separate but equal” doc trine. Subsequent cases have accepted this doctrine as a constitutional axiom without examination. Hence what was in reality a legal expedient of the Reconstruction era has until now been accepted as a valid and proved constitutional theory. The record in this case clearly demonstrates the fallacious and untenable rationale on which the doctrine is founded and the necessity for its repudiation. Equality without regard to race, color or creed is the very essence of our way of life. The constitution guaran tees it; our moral and ethical codes demand it. Since segregation and equality are mutually exclusive this Court must find that appellant’s rights under the federal Constitution can only be satisfied by his acceptance and enrollment in the University of Texas School of Law on the same basis with other students. Ill The demonstration in this record that racially separate schools in fact and inevitably deny the equality required by the Fourteenth Amendment, precludes the application of any “ separate but equal” doctrine in the field of public education and in the circumstances of this case. A . The law school set up by appellees does not meet the requirements of the Four teenth Amendment. The appellees admit that the equal protection clause of the Fourteenth Amendment to the Federal Constitu tion requires them to provide this appellant with the opportunity to secure a legal education in Texas. They, / / however, contend that this requirement is met by pro viding appellant with a separate law school “ substan tially” equal to that at the University of Texas where appellees have provided white citizens of Texas with an opportunity to acquire the best legal education offered in the State. In what appears to be an attempt to comply with the constitutional requirements of the Fourteenth Amend ment, appellees set up for this appellant a law school which they contend and attempted to prove, on the trial of this case, is a law school substantially equal to that at the University of Texas. But the whole testimony, and especially that introduced by the appellees themselves, shows conclusively that this so-called law school is not substantially equal to that at the University of Texas in a single respect. As a matter of fact, the testimony in this case for the first time presents in bold relief the inevitable dis crimination inherent in a segregated school pattern. The Statement of Facts shows that the University of Texas Law School is a full-time, approved law school (S. F. 11, 31).25 It has a student body of some eight hundred (800) students (S. F. 351) a faculty of some twenty-four (24) or more full-time professors;26 a cur riculum offering forty-seven (47) law courses designed to prepare students to become practitioners, law teachers, 20 20 The American Bar Association and The Association of Amer ican Law Schools are the two recognized agencies which set mini mum standards to which every law school must conform in order to receive approval and consequent recognition as a law school. The University of Texas Law School is approved by both of these associations. i ^ 6"’ee University of Texas Publication No. 4529, August 1, 1945, School of Law. 37 public servants, and legal researchers;27 a library of more than sixty-five thousand (65,000) volumes (S. F. 71);28 a budget of several million dollars (S. F. 398-416); a large, well-equipped building with several classrooms and beautiful grounds (S. F. 74); a well-established, recog nized law review; 20 several moot courts and other student extracurricular activities; 80 30 prestige which comes from being attached to the State’s largest and best Univer sity with a national and international reputation and sixty-four (64) years of tradition.31 The “ law school” which appellees have hastily pro jected for Negroes is, on the other hand, part-time and unapproved (S. F. 75).32 * 34 35 It has no student body (S. F. 22); a faculty of part-time professors (S. F. 51, 56, 68) ;ss a part-time Dean (S. F. 57) 84 no librarian (S. F. 231- 232); a curriculum offering only first-year law courses designed to give nothing more than the bare principles of the subject involved (S. F. 3 9 );85 a library of only 27 Ibid. 28 The American Bar Association requires that a law school have at least 7,500 well-selected books to meet the minimum standards of approval and the American Association of Law Schools requires 10,000. 29 Note 26, supra. 30 Note 26, supra. 81 The law school at the University of Texas was begun in 1883. 32 See the report to the 36th Annual Meeting of the Associa tion of American Law Schools on Consolidation of Legal Educa tion in Dallas, 9 Am. Law School Review 233 (1938) ; Storey, Progress of Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938). 83 The Association of American Law Schools requires a mini mum of four full-time professors irrespective of the number of students (Statement of Facts 35). 34 See Horack, Law Schools of Today and Tomorrow, 6 Am. Law School Review 658 (1927) for an excellent commentary on the part-time Dean. 35 See Boyer, Smaller Law Schools: Factors Affecting Thetr Methods and Objectives, 20 Oregon Law Rev. 281 (1941). 39 two-hundred (200) volumes (S. F. 13, 50, 77) ; 36 37 38 a bud get of only One Hundred Thousand Dollars ($100,000);37 three or four small rooms, leased on the ground floor of an old office building, without any items of pulchritude (S. F. 13, 38, 71, 74, 80); 38 no law review;39 no moot court or other student activity of any description; 40 cultural atmosphere which comes from being attached to a large, well-known University is completely lacking in every respect (S. F. 444) ;41 and of course this anoma lous creation of appellees can have no tradition.42 36 Note 28, supra. 37 Note 35, supra. 88 See the address of John C. Townes, former Dean of the Uni versity of Texas Law School before the 10th Annual Meeting of the Association of American Law Schools, 2 Am. Law School Review 436 (1910), for an excellent discussion entitled, Organi sation and Operation of a Law School. 39 Note 35, supra. 40 Note 35, supra. 41 Both the American Bar Association and the Association of American Law Schools advocate the abolishment of proprietary schools, i. e., schools which are not a part of a university. See Ballantine, H. W., The Place in Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918), where he says: “ The evening law schools unfortunately do not have the cultural atmosphere which surrounds university life. By the university law schools system of legal education, the law school is conducted by and associated with a public educational institu tion which is not run for profit. It is an organic part of the university and has the benefit of university standards, spirit, sup port and facilities. The student is required to be in constant resi dence at the school, which maintains classrooms and offices for the professors and a library for study. This library is the school laboratory. The faculty of the school devote their lives to teach ing, study, consultation and research. These schools aim to exact from their students practically their entire time and their exclusive devotion to the study of law. They have traditions, atmosphere, inspiration. They publish law reviews and quarterlies and are an important liberalizing and progressive influence, centers of legal research and productivity.” 42 Note 41, supra. 40 In the face of these facts, which were brought to light on the trial of this case, appellees insist that this law school which they have provided for appellant satisfies the requirement of the Fourteenth Amendment. The case as presented and relied on by appellees shows the patent inequities inherent in a pattern of segregation. This, in itself, demonstrates the inevitable result of fal lacious reasoning brought about by the use of a hypo thesis that “ separate but equal” facilities can ever exist when as a matter of fact there can be no equality in a segregated system. Segregation and discrimination are so interrelated as to make it impossible to distinguish one from the other. B. The law school set up by appellees cannot meet the requirements of the Fourteenth Amendment. The contention of appellant is, on the other hand, that the Fourteenth Amendment requires that appellees make available to him the opportunity to receive the identical legal training which other Texans receive. The appellant further contends that the only way this can be done is by allowing him to attend the same law school which other Texans attend and that requiring him to attend a separate law school would not afford him the same education even though the physical facilities be substantially equal. Assuming that appellees had set up a separate law school equal in every physical respect to that at the Uni versity of Texas, the requirements of the Fourteenth Amendment would still not be met because: (1) the ap- 41 pellant would not receive the same education, and (2) the equality of the two schools is not determined by the physical identity of their facilities but by the similarity of their value in the eyes of the community. The testimony in this case showed that in order for appellant to receive the same education which the students at the University of Texas receive, it would be necessary for appellees to make available to him the same facilities in a similar setting. It is conceded that it would be possible for appellees to provide substan tially equal physical facilities, but it is not possible to provide a similar setting because the student body is composed of one student and not a cross-section of the community population. If this school set up by appel lees for this appellant had several students, all Negro, it still would not be equal to that at the University of Texas because it would not be as representative a student body as that of the University of Texas. The testimony shows that if appellant were allowed to attend the University of Texas, he would have the educational advantage of give and take among eight hundred (800) schoolmates, whereas if he is required to attend this seg regated law school, he will have no associates. The tes timony of the expert witnesses was that associates are as essential to a law school as any other facility and that the advantages of being in a classroom with many stu dents holding diverse views on the questions of law pre sented are obvious to the most casual observer (S. F. 42 349-379, 560-591).43 In short, there would be no way of duplicating the associations which appellant would have at the University of Texas. The testimony in this case further shows that assum ing equal facilities, appellant would not receive the same education because the school is unapproved, completely lacking in student activity and has no traditions or cul tural background (S. F. 349-379, 560-561). These very essential attributes of the University of Texas law school appellees cannot duplicate either.44 Appellant does not seek to have appellees establish a separate school for Negroes with facilities equal to those at the University of Texas because appellant con tends, as indicated infra, that “ equality is determined not by the physical identity of things or facilities fur nished, but by the identity or substantial similarity of their values—in short, by the community judgment at tached to them.” There can be no question that a seg regated law school for Negroes has a very low value in 43 See: Ballantine, The Place in Legal Education of Evening and Correspondence Law Schools, 4 Am. Law School Rev. 369 (1918) ; Boyer, The Smaller Law Schools, 20 Oregon Law Rev. 281 (1941) ; Proceeding of the 36th Annual Meeting of the Asso ciation of American Law Schools, 9 Am. Law School Review 233 (1938) ; Clark, Contrast: The Full-Time Approved Law School Compared With The Unapproved Evening School, 20 ABA Journal 548 (1934) ; Horack, Law Schools of Today and Tomor row, 6 Am. Law School Rev. 658 (1927) ; Maxwell, Chairman’s Address, 1 Am. Law School Rev. 337; Snyder, The Function of the Night Law School, 7 Am. Law School Rev. 827 (1933); Address of Harlan F. Stone, 4 Am. Law School Rev. 483 (1919); Brown, Lawyers and the Promotion of Justice (1938); Vance The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914) ; Reed, A. Z., Present-Day Law Schools (1928) ; Reed, A. Z., Social Desirability of Evening or Part-Time Law Schools, 7 Am. Law School Rev. 198 (1931). 44 Note 43, supra. 43 the eyes of every community since the purpose is to segregate a group which Texans have been led to be lieve is inferior.45 If this were not true, then the “ jim- crow” school would never have appeared. Since there is not even a scintilla of merit to the contention that Negroes are inferior and should be segregated, appel lees should be prevented from excluding appellant solely on account of his race and color. If they did set up a school for him with facilities which appear to be equal in terms of monetary value, it would not be equal in the mind of the community. Therefore, since the value of any institution is - undeniedly determined by the com munity judgment of it, the appellees should be prevented from excluding appellant from their school and relegat ing him to a school which could not possibly be equal because, of its low value in the eyes of the community. C. The function of a state-supported law school. The function of a state-supported law school is to serve the interests of the people of the state as a whole and not merely lawyers as a class nor those who seek to perpetuate bigotry and outmoded notions of racial superiority. The interests of the people of a state are most effectively served by providing through the . state- supported law school the best type of legal education that experts in the field have been able to recommend, as the welfare of society requires, not only that the public be free from incompetent counsel, but that the laws be 45 It is common knowledge that Negroes in the South have been relegated to a position of inferiority in every area of public life and that such a position is natural is a view which is widely held. 44 wisely and justly made and fairly and honestly admin istered. Certainly the people of a state would not allow their young physicians, whose job it will be to safeguard the lives and health of the people, to be trained in schools teaching antiquated methods and using outdated equip ment when medical experts have devised more advanced methods and more scientific equipment. Since law stu dents are the ones to whom will be entrusted the admin istration of justice, it is at least equally important to the welfare and safety of all the people that these persons receive the best possible training available.46 47 48 Thus, all resources the state can afford should be directed to this end and not dissipated in an attempt to maintain un democratic practices of racial segregation. The modern law school today has at least four objec tives: (1) to prepare for law teaching, (2) to prepare for legal research, (3) to prepare for practice, (4) to pre pare for public service.47 In order to achieve these objectives, an adequate law school necessarily has the facilities for so doing. First and foremost financial resources are at their disposal. These resources are needed to obtain a large, well- trained faculty. The faculty must be large in order that each individual instructor carry as light a teaching load as possible. Even the best professors must devote their full time to their teaching. In order to do this, their income must be adequate.48 46 See Vance, The Function of the State-Supported Law School, 3 Am. Law School Rev. 409 (1914) ; McCormick, C. T., The Place and Future of the State University Law School, 24 N. C. Law Rev. 441. 47 Boyer, The Smaller Law Schools: Factors Affecting Their Methods and Objectives, 20 Oregon Law Rev. 281 (1941); (S. F. 349-379, 560-591). 48 Ibid. 45 A large, extensive, and well-organized library with several trained librarians is indispensable. Without such a library the student will be presented with a prac titioners’ library, rather than one adapted to legal re search, and graduate work would be impossible.49 An adequate law school offers special compilations of material to its students and a great deal of integra tion of courses in order to allow a teacher to become spe cialized.50 The student body is composed of a cross-section of the population in order that the students may have the op portunity to come into contact with all the current think ing and familiarize themselves with the problems of their state. In addition to the financial resources, the faculty, the library, the curriculum and the student body, the effec tiveness of the adequate law school is greatly enhanced by its extra-curricular activities such as, legal aid clinics, legal institutes, drafting service, briefing service, moot court and law review. These activities cannot be included in the organized effort of the modern law school without adequate faculty, the time required, the special knowl edge required and the requisite financial resources.51 A proper building, which is well constructed, with comfortable and healthful rooms and good acoustics, lounges, offices and grounds, is essential.52 Finally, tradition and cultural atmosphere are as in dispensable to a first-class law school today as any other 49 Ibid. 50 Ibid. 51 Ibid. °2 Footnote 38, supra. 46 condition and neither Mark Hopkins and a log nor a few rooms in a downtown office building will fulfill this re quirement.53 The difficulties encountered in attempting to make part-time schools the equivalent of full-time schools are so great that the most ardent partisan of the part-time school, Mr. Alfred Z. Reed, says that part-time schools should cease striving to duplicate the work of full-time schools and find a field of instruction to which they, and only they, can do justice.54 When the medical profession realized the danger to the community of small schools with inadequate facili ties, it set out to organize the field of medical education, to raise the standards and to drive out the schools which could not meet the requirements for first-rate medical education. Available statistics which indicate the sharp decline in the number of medical schools which could not meet certain requirements represent the result of pressure exerted by the American Medical Association, the Association of American Medical Colleges, state boards of examiners, the Carnegie Foundation for the Advancement of Teaching, and other groups. A similar fate awaits the small, inadequate law school.55 In Uh'Hx the American Bar Association statistics sh ew ed that there w e e ■ • v e n a p p r o v e d law schools in Te\as than any ether state in the Union. Of the twelve 'aw schools, in Texas at that time, nine were unap- proved."; ■r Pcift-FilM ort ̂ -Rtstice 47 This deplorable situation led to a movement in Texas to consolidate legal education. The aid of the Associa tion of American Law Schools was sought in this effort. At the 36th Annual Meeting of the Association in 1938, a report was made of what had occurred in Dallas as a result of this effort. The report stated that early in 1937 there was a series of conferences by representa tives of the YMCA, which was the largest of these part- time unapproved schools, Southern Methodist Univer sity Law School, the Dallas Bar Association, the Ameri can Bar Association, and the Association of American Law Schools. As a result of these conferences, an agree ment was drawn and acted upon which resulted in the retirement of the YMCA from the field of legal educa tion. The YMCA school was absorbed by Southern Methodist University. The Dallas Bar Association thereupon adopted regulations which were designed to eliminate small, part-time and non-accredited law schools. The report also indicated that similar consolidations were under way in other areas.6. Most of the part-time law schools were pushed out of the field after the repeal of the “ diploma privilege” and the adoption of higher standards for admission to the bar by the Texas Su preme Court.65 R. L. Storey of the Texas bar said of these higher standards: ” In the effort of organized bar associations to elevate the standards for admission to the bar, it is not the desire to ir o r i a hardship opon any -t AJ * f ” **** 'y p e 36dz Ammtat Meeting o f the A m x k ttm Schcr/ts' 5 Law bcVx.: m (Y m ).a a prmfege" was the vrntm wbereiy m e bold- ng a law school diploma waa rxx retjclrsd bar 4S law school, and the American Bar Association will encourage and help any law school that will ele vate its standards and meet the requirements, but if a school cannot meet such requirements because of inadequate financial support or other reasons, its graduates cannot meet the rising standards of the profession. The standards of admission to the bar should be fixed in accordance with the public interest, rather than for the benefit of any law school or individual . . . It is therefore the goal of organized bar associations to so elevate standards in all of the states that those who come into the profession will be better trained, both in general education and law study, than heretofore, which will naturally result in elevating. the pro fession, as well as serving the public in a more efficient manner. . . . ” 59 By setting up a small, part-time, unapproved law school for this appellant, appellees are, in fact, lowering the standards of legal education in the State of Texas for all citizens and dissipating the resources of the state by attempting to maintain two inferior law schools rather than making the one which is now in existence serve the needs of the state on the highest possible levels.60 59 Storey, Progress in Legal Education, Texas Bar Journal, Vol. 1, No. 5 (1938). 60 See the address of Charles E. Dunbar before The Association of American Law Schools (1939), The A B A Program in the Field of Legal Education and Admissions to the Bar and the Part-Time School Problem; President’s Address, 17th Annual Meeting Asso ciation of American Law Schools, 4 Am. Law School Rev. 483 (1919 ); Chairman’s Address, A B A Section on Legal Education, 1 Am. Law School Rev. 337 (1905). 49 D. The expert testimony introduced at the trial establishes that there is no rational justification for segregation in professional education and that substantial discrimina tion is a necessary consequence of any separation of professional students on the basis of color. 1. The professional skills developed through gradu ate training are among the most important elements of our society. Their importance is so great as to be almost self-evident. They are the end results, the products of education, but, at the same time, they do not constitute the full purpose of education. A definition of that pur pose, particularly in its relationship to segregation, has been furnished by an eminent authority, Dr. Robert Red- field of the University of Chicago. He states: “ . . . I should say that the main purposes of edu cation are to develop in all citizens in accordance with the natural capacities of those citizens, the fullest intellectual and moral qualities, and the most effective participation in the duties of the citizens” (8. F. 312). It clearly follows then, that segregation is an abortive factor in the full realization of the objectives of educa tion. First, it prevents both the Negro and white student from obtaining a full knowledge and understanding of the group from which he is separated, thereby infringing upon the natural rights of an enlightened citizen (S. F. 315). Second, a feeling of distrust for the minority group is fostered in the community at large) a psychological atmosphere which is not favorable to the acquisition and conduct of an education or for the discharge of the duties of a citizen (8. F. 315, 316). Lastly, one of the effects of segregation in education with respect to the general 50 community is that it accentuates imagined differences between Negroes and whites (S. F. 316). On this point, the verbatim text of Dr. Eedfield’s testimony merits quotation: “ These false assumptions with respect to the ex- ■ istence of those differences are given an appear ance of reality by the formal act of physical sepa ration. Furthermore, as the segregation, in my experience, is against the will of the segregated, it produces a very favorable situation for the in crease of bad feeling, and even conflict, rather than the reverse” (S. F. 316). It is clear, then, that in seeking a form of education free from any racial restrictions, one wants not only the benefits and skills that that education can yield him, but, primarily, he desires to live and function as an enlight ened citizen in a representative democracy. 2. Qualified educators, social scientists, and other experts have expressed their realization of the fact that “ separate” is irreconcilable with “ equality” .61 There can be no separate equality since the very fact of segre gation establishes a feeling of humiliation and depriva tion to the group considered to be inferior.62 The sociolog ical and political significance of the practice of segre gation is found not only in the deprivations experienced by the minority group, but by society at large. In one of the most exhaustive studies ever conducted on the sub- 61 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. I, page 580. Charles S. Johnson, Patterns of Segregation, New York, 1943, page 4, 318. Charles S. Mangum, Jr., The Legal Status of the Negro, Chapel Hill, 1940. 62 Carey McWilliams, “ Race Discrimination and the Law , Science and Society, Volume IX Number 1, 1945. 51 ject of segregation, the noted sociologist Gunnar Myrdal has stated: “ Segregation and discrimination have had ma terial and moral effects on whites, too. Booker T. Washington’s famous remark that the white man could not hold the Negro in the gutter without getting in there himself, has been corroborated by many white southern and northern observers. Throughout this book, we have been forced to notice the low economic, political, legal and moral .standards of Southern whites—kept low because of discrimination against Negroes and because of obsession with the Negro problem. Even the am bition of Southern whites is stifled partly because, without rising far, it is so easy to remain ‘ super ior’ to the held-down Negroes.” 63 There are many other authoritative studies which bear out Mr. Myrdal’s observations.64 In addition to the psychological atmosphere of dis trust and the practical inequities which result under a segregated system, the citizens of both the majority and minority groups are deprived of that inter-change of ideas and attitudes which is so necessary to a full educa tion (S. F. 320, 325). 3. No one questions the kind of separation which the community imposes in the interest of public safety, con venience or welfare. There is ample justification for differences in the treatment of the old and the young, the healthy and the sick, the criminal and the law-abiding*. In each of these cases the act of separation is justified 63 Gunnar Myrdal, An American Dilemma, New York, 1944, Vol. 1, page 644. 64 H. Cantril, Psychology of Social Movements, 1941, pages 78-122; Gene Weltfish, Causes of Group Antagonism, Journal of Social Issues, Vol. 1. 52 and is motivated by a desire to protect society at large, and to promote the interest of both groups. There is, however, no rational basis, no factual justi fication for segregation in education on the grounds of race or color. This type of segregation is often rational ized on the ground that “ Negroes have an inferior mental capacity to whites.” Yet this premise is completely in valid and no act of segregation based upon it can he up held as reasonable.65 Scientific studies have, been con ducted in which representative samples of both groups, Negro and white, have been placed in nearly identical situations with identical tasks to perform. The per formances of these tasks have indicated the intellectual faculties and the capacity to learn of the people being tested (S. F. 313, 314). The results of such tests as in dicated by the testimony in this case read as follows: “ The conclusion then, is that differences in in tellectual capacity or inability to learn have not been shown to exist as between Negroes and whites, and further, that the results make it very probable that if such differences are later shown to exist, they will not prove to be significant for any edu cational policy or practice” (S. F. p. 314). Moreover, it has been demonstrated, that in cases where no segregation exists, or where it has ceased to exist, the results have never been disastrous but often 65 The Black and White of Rejections for Military Service, American Teachers Association, August, 1944, page 29. Otto Klineberg, Negro Intelligence and Selective Migration, New York, 1935. J. Peterson & L. H. Lanier, “ Studies in the Comparative Abilities of Whites and Negroes” , Mental Measurement Mono graph, 1929. W . W . Clark, “ Los Angeles Negro Cfhildren” , Educational Research Bulletin, Los Angeles, 1923. 53 favorable (S. F. 317, 318, 454). In the course of the instant trial, one of the expert witnesses, on being ques tioned as to the effect of Negro and white students study ing together at the University of Chicago, testified: “ Q. Were there any ill effects at all? A. I don’t know of any. “ Q. Do you know of any good effects? A. Yes. Perhaps I should mention a case. The students were denied admission, Negro students were discouraged from admittance is perhaps a more accurate statement, to the laboratory school of the University. “ They were discouraged admission for a great many years. Then it was made apparent that they would be welcome, and they began to come, and there was opposition for a minority of the aca demic community to the step. Many evil conse quences were told. None of those consequences took place, but, on the other hand, there was an improvement in the community in that there was a representation of the national community which is favorable to education, and the relations between the white and the Negro groups were improved in parent-teacher and endeavor” (S. F. 317, 318). Since all available evidence controverts the theory that Ne groes have an inferior mental capacity to whites, and moreover, since the two groups work well together and to their mutual advantage, it must be concluded that any claim of inferiority is motivated by a desire to per petuate segregation per se.68 66 66 McGovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreement, Covenants or Conditions in Deed is Unconstitutional (1945), 33 Cal. L. Rev. 5, 27 (note 94: “When a dominant race, whether white or Negro, demands separation, it is fallacious to say . . . that the intention and effect is not to impose a ‘badge of inferiority’ on the other.” ) 54 4. It may be that the pattern of segregation which has existed in the South for more than fifty years cannot be abolished instantaneously. But although the term “ gradual” may be used adjectively in relation to the overall pattern, it should not be used as a rationalization for inaction at any given instance. Testimony in this case has been submitted by an expert witness for the ap pellants to the effect that: “ I think that all change should not come on any more rapidly than it is consistent with the gen eral welfare” (S. F. 321). However, when questioned as to whether it isn’t im possible to abolish segregation in a community where it has existed for a long number of years (S. F. 321), the witness for the appellant testified: “ A. No I don’t agree to that. “ Q. Do you think the laws should be changed tomorrow ? A. I think that segregation is a matter of legal regulation. Such a law can be changed quickly . . . Segregation in itself is a matter of law, and that law can be changed at once, hut if you mean the attitude of the people with re spect to keeping away from people of another race, then perhaps I have another answer” (S. F. 321- 322). * * ' * . # # # ■ # # # “ I think in every community there is some seg regation that can be changed at once, and the area of higher education is the most favorable for mak ing that change” (S. F. 322). The appellants in this case are fully cognizant of the fact that the pattern of segregation has become deeply entrenched in the general mores in the South. Yet the 55 basis for a new and forward looking approach exists in the record before this Court (8. F. 306-316, 380-476). New rulings made on the basis of a record which shows a pattern of inequality and injustice under our Constitution, are not revolutionary but evolutionary. 5. The correlation between segregation and discrim ination in education is demonstrated by the evidence in this record dealing with the educational system of the State of Texas. It is no accident, no coincidence, that wherever segregation is decreed and enforced, there you will find inequality. A large section of the testimony in troduced before the Trial Court proves emphatically that in this state, where the Negro and the white schools are separated, the Negro schools are inferior and inadequate in every significant respect. Dr. Charles H. Thompson, an authority in education whose unexcelled qualifications as an expert witness are amply set forth in the record (S. F. 380-387) made a documented, scientific study of the comparative educa tional facilities for Negroes and whites in Texas at the request of this appellant (S. F. 388). Analyzing the situation on the basis of the best recognized criteria, Dr. Thompson found, in substance: (a) Physical Facilities. The combined asset value of the plant facilities of the thirteen white state-supported schools above high school level is in excess of $72,000,000; that of Prairie View, the only Negro school of “ higher learning” , is slightly more than $4,000,000 ( 8. F. 401). This is less than half of the proportionate amount which would be allocated on the basis of the Negro population of the state. On a per 56 capita basis, $12.88 was invested in plant assets for every white person in Texas, $4.71 for every Negro (S. F. 402). The per student appropriation at Prairie View is much less than that found to exist at small white teachers colleges (S. F. 414-415). Texas provided through state- supported institutions for 66.8% of its white college students, only 31.8% of her Negro students in Senior colleges (S. F. 418). (b) Current Expenditures. In 1943-44, Texas appropriated $11,071,490 in State, County and District funds for higher education in Texas. They appropriated $10,858,018 to white institutions—i. e., $1.98 per capita to every white citizen. They appropriated $213,472, or $.23 per capita, to every Negro in the popu lation (S. F. 410). The white institutions, then, got 8.06 times as much as did the Negro institutions. (c) Curriculum,. In Texas there are 106 under-graduate fields of specialization in the white state-supported institutions, and 49 in the Negro institution, Prairie View (S. F. 424). Texas A. & M., a white state-supported institution, offers 45 fields of specialization as compared with 13 offered by Prairie View, a ratio of more than 3 to 1. On the other hand, a number of sub-collegiate high school trade courses are given at the Negro university, Prairie View, such as mattress making, auto mechanics, carpenting, laundering and dry cleaning, etc. (S. F. 425). These skills are usu ally taught in high schools or lower vocational schools (S. F. 425). On the graduate level, the investigation reveals that a total of 159 Negroes received graduate degrees during approximately a five-year period, as con- 57 trasted with some 3,000 white students who received graduate degrees in the same period (8. F. 427). More over, the range of subjects in white graduate schools is considerably wider: “ The National Survey of Higher Education for Negroes . . . , a U. S. Office publication, indicated in 1942 that the Texas state-supported higher in stitutions for whites offered graduate work in 65 fields, and 5 for Negroes” (S. F. 428). The University of Texas, at the present time, gives 10 different types of graduate degrees in 40 fields. Prairie View gives-a Master’s Degree in 13 fields (S. F. 428). (d) Faculty. In comparing the faculty of white and Negro schools of higher learning, in Texas, two key factors must be con sidered, namely, salary and training (S. F. 434). In order to attract and retain a good teaching staff, faculty members must be paid good salaries and find the work ing conditions satisfactory. Dr. Thompson’s study dis closed that twenty-five well-prepared and able teachers were lost to other institutions within the past five years because of the inability of Prairie View to match their salary offers (S. F. 436). It further revealed that the median salary of a full professor in Prairie View is $2,025.00, while the lowest salary paid to a full professor in a state-supported white college is $2,700 (S. F. 436). As to training, the picture is identical. In 1945-46, only 9.3% of the faculty members of Prairie View had degrees of the doctorate level (S. F. 438). 58 (e) Library. The University of Texas library has 750,974 titles. Prairie View has 25,000. Even a white college with a smaller student body (1,205 students), such as East State Teachers College, had 81,974 volumes in 1945-46; Prairie View had 25,000 volumes for 1,619 students (S. F. 439). The library of one Negro college was found by an im partial survey committee to be inadequate even for under graduates, not to speak of its complete inability to meet the needs of its graduate students (S. F. 441). (f) Standing in the Educational World and Com munity. Prairie View is not accredited by The Association of American Universities or by any of the national profes sional councils (S. F. 442). It is regarded as a “ poor college” ; it is not a “ real university” (S. F. 444). A Negro student there cannot get the type of under graduate or graduate education that is available to the white student (S. F. 443-444). The same conditions which exist in the undergraduate field are emphasized and brought into sharper relief in the graduate sphere. In the five-year period from 1939 to 1943 only 159 Negroes received graduate degrees as compared with more than 3000 white students during the same period (S. F. 427). The University of Texas and A. & M. College of Texas, between the period of 1940 and 1945 gave 212 doctorates. Now, if a Negro wishes to obtain a Doctor’s Degree in the State of Texas, the only recourse he has in so doing is through what is ad mittedly an inadequate scholarship fund (S. F. 429). 59 It might also be well to note, at this point, the state ment of one of appellee’s own expert witnesses, who, upon direct examination stated: “ I am unable to think for the moment of colored institutions and white institutions which do have equal facilities with which I have been associated” (8. F. 547). 6. The inferiority of professional and higher edu cation available to Negroes in Texas makes itself di rectly felt in the woeful lack of qualified professional men in the Negro community of Texas. In the year 1940, there was, in the State of Texas, one white doctor to every 903 of the white population, and one Negro doctor to every 5,637 of the Negro popu lation. Thus there were more than six times as many doctors in proportion to the white population as there were Negro doctors in proportion to the Negro popu lation (S. F. 420, 421). The dearth of Negro pro fessionals in the South does not stem from any lack of desire for professional education on the part of these citizens, but is the direct result of the artificial limita tions placed on their educational opportunities. Thus, in Tennessee, where a minimum of opportunity was af forded by the Meharry Medical School, there are almost three times as many Negro doctors as there are in Texas. A parallel situation exists in the case of dentists. In 1940 there was in the State of Texas one white dentist to every 2,886 of the white population, and one Negro den tist for every 11,412 of the Negro population (S. F. 421). When we compare the ratio in the State of Tennessee, where Meharry Dental School admits Negroes, there are twice as many Negro dentists as there are Negro dentists 60 in Texas. And in the District of Columbia, where How ard University admits Negroes to the dental school, there are four, times as many dentists as there are in Texas (8. F. 422). Statistics in reference to the number of Negro engi neers bear out this same pattern. But in the case of lawyers, we have the most graphic illustration of what the denial of professional education to Negro citizens can mean. In 1940, in the State of Texas, the ratio of white lawyers to the white population was one to every 712, whereas the ratio of Negro lawyers to the Negro population was one to 40,191 (S. F. 423-). 7. The conditions summarized authoritatively by Dr. Thompson and other witnesses at the trial are by no means peculiar to Texas. They exist in Louisiana, in Alabama, in Mississippi, the whole South. They exist wherever and whenever there is enforced “ legal” segre gation. That this critical situation is not peculiar to Texas alone but is an inevitable result of the policy of racial segregation and discrimination in education is demon strated by an analysis made by Dr. Thompson.67 He states that: “ In 1940 there were 160,845 white and 3,524 Negro physicians and surgeons in the United States. In proportion to population these represented one 67 Charles H. Thompson, “ Some Critical Aspects of the Prob lem of the Higher and Professional Education for Negroes,” Journal of Negro Education (Fall, 1945). 61 physician to the following number of the white and Negro population, respectively: Section White Negro U. S___________ X_____ 735 3,651* North _______ _ ______ 695 1,800* South ________________ 859 5,300* W est_________________ 717 . 2,000* Mississippi ___________ 4,294 20,000* “ Law—in 1940 there were 176,475 white and 1,052 Negro lawyers in the U. S. distributed in propor tion to population as follows: Section White Negro TT. 8. 670 12,230' 4,000'North ________________ 649 South. ______ 711 30,000' 4,000' 358,000' Wost 699 Miss.___________ ______ 4,234 “ There are 18 times as many white lawyers as Negro lawyers in the country as a whole; 45 times as many in the South; and 90 times as many in Mississippi. Even in the North and West there are sis times as many white lawyers as Negro. With the exception of engineering, the greatest disparity is found in law.” The record of this policy of educational segregation and denial of professional education to Negroes is clear. In the 17 * 68 states and the District of Columbia in 1939- 1940 the following number of states made provisions for * T o the nearest hundred. 68 The seventeen states which require segregation in the school system are: Alabama, Arkansas, Florida, Delaware, Georgia, South Carolina, North Carolina, Texas, Tennessee, Missouri, Mis sissippi, Maryland, Virginia, West Virginia, Oklahoma, Louisiana, Kentucky and the District of Columbia. 6 2 the public professional education of Negro and white students: 60 Profession White Negro Medicine __________ ______ 15 0 Dentistry__________ ______ 4 0 Law_______________ ______ 16 1 Engineering _______ ______ 17 0 Social Service _____ ______ 9 0 Library Science____ ______ 13 1 Pharmacy _________ ______ 14 0 The result has been that the qualified Negro student is unable to obtain the professional education for which he may be fitted by aptitude and training. The implications of all this evidence are overwhelm ing. The facts are these: whenever and wherever seg regation in education is practiced under state sanction, there is admitted and flagrant discrimination in the treat ment of the Negroes. Discrimination and inequality fol low inevitably and inexorably from the mere fact of segre gation. The record not only of this case but of the educa tional experience of the nation demonstrates that where schools are separated on racial grounds, there must be inequality. “ Separate and equal” is a legal fiction to which the states give only casual lip service. This record throughout and the experience of the teaching profession demonstrate that there is an inherent and fundamental contradiction between “ segregation” and “ equality.” However valid in theory, it is apparent that in practice, in this case and in thousands of others, the Negro who honestly seeks learning cannot get it in a “ separate” school. 69 Based on data in National Survey of Higher Education for Negroes, Vol. II, page 15, 1942. 63 Conclusion Appellant has conclusively proved that the right to equal protection guaranteed him under the Fourteenth Amendment can only be secured by his admission forth with to the University of Texas School of Law. It has been clearly established herein both by appellant and by appellees that the “ equal hut separate” doctrine on which the constitutional and statutory requirements for segregated schools in Texas are based is an invalid hy pothesis. This record demonstrates that one cannot recognize the requirement of equal treatment as a valid principle and simultaneously defend the practice of racial segregation. Fundamental to our American tradition is the belief in individual, racial and religious equality. This belief has been embodied in our constitutions, enacted into our statutes and carefully protected and preserved in our court decisions. Texas and other southern states have attempted to perpetuate a segregated system. They have rejected the fundamental premise of equality and in reality believe that Negroes hold and must necessarily retain a status inferior to whites. This rejection of a concept considered basic to our system is given legal status by a theory which purports to be founded upon the premise of equality. A choice must be made between these two conflicting concepts. Our Constitution and laws make clear that only one choice can be made. Wherefore, it is respectfully submitted that this Court reverse the judgment of the Court below refusing appel lant’s application for writ of mandamus against appel- 64 lees requiring them to admit him to the University of Texas School of Law. W. J. D u r h a m of Dallas T h urg o o d M a r s h a l l of New York Attorneys for Appellant. By: ....--------------- J . M . N a b r it C . B . B u n k l e y , J r . H . M . B e l l in g e r R o b e r t L. C a r t e r Of Counsel. The rule has been complied with and a copy of this brief has been delivered to the Honorable Price Daniels, At torney General of the State of Texas By V \ States // October Term , 1949 / / No. 44 H em a n M arion Sw eatt , Petitioner v . Theophilus Shickel Painter , et al ., Respondents BRIEF FOR RESPONDENTS Price Daniel Attorney General of Texas Joe R. Greenhill First Assistant Attorney General E. Jacobson Assistant Attorney General Attorneys for Respondents. SUBJECT MATTER INDEX Page Preliminary Statement ___________________________ 1 Statement of the Case____________ _______________ 4 First Point: Section 7 of Article VII of the Texas Con stitution and related statutes providing that the State shall furnish equal education to its Negro and white students in separate schools are constitutional. The power of the State to so classify and the reason ableness of this classification have been settled as a matter of law by this Court as not violative of the equal protection clause of the Fourteenth Amend ment _________________________________________ 9 United States Supreme Court Decisions________ 10 1. Hall v. DeCuir_________________________ 10 2. Plessy v. Ferguson_____________________ 12 3. Cumming v. Board of Education_________ 15 4. Chesapeake & Ohio Ry. v. Kentucky_______ 16 5. Berea College v. Kentucky______________ 17 6. Chiles v. Chesapeake & Ohio Ry_________ 18 7. McCabe v. A. T. & S. F. Ry______________ 20 8. Gong Lum v. Rice______________________ 21 9. Missouri ex rel. Gaines v. Canada_______ 23 Other Federal and State Court Cases___________ 28 Petitioner’s Cases Distinguished____________ 31 Pearson v. Murray_________________________ 32 Civil and Political Rights Cases_____________ 33 The Chinese and Japanese Exclusion Cases___ 35 The Property Ownership Cases_____________ 37 The Interstate Commerce Cases____________ 40 Argument __________________________________ 42 Second Point: The background and contemporaneous construction of the Fourteenth Amendment sustain this Court’s interpretation that under the Amend ment the States may furnish equal education to their Negro and white students in separate schools_____ 43 Argument and Authorities___________________ 43 A. Congressional Action Before, During, and After the Adoption of the Fourteenth iv S u b j e c t I n d e x in the Classification Made by Texas, the Southern States, and the Congress, Then, and Only in That Event, Respondents Are Entitled on a New Trial to Fully Develop That Proposition_______________________ 98 Fourth Point: The fact question of whether Petitioner was offered equal facilities is not properly before this Court because Petitioner did not present it to the Texas appellate courts for review. But assuming the issue to be properly before the Court, there is ample evidence to support the trial court’s findings of fact and judgment-------------------------------------------------- 100 1. The Fact Question As to the Equality of the Two Law Schools is Not Properly Before This Court___________________________________ 100 2. Assuming the Fact Question of the Equality of the Schools is Properly Before the Court for Determination, There is Substantial Evidence to Support the Fact Findings of the State’s Trial Court______________________________ 107 Entrance, Examination, Graduation, and Similar Requirements_________________ 108 The Faculty___________________________ 109 Curriculum____________________________ 110 Classroom_____________________________ 110 Library _______________________________ 111 The Physical Facilities__________________ 113 Addendum______________________________________ 119 Supervening Facts_____________________________ 120 1. Accreditation ____________________________ 120 2. Library _________________________________ 121 3. Student Body____________________________ 121 4. Physical Facilities ____________________ 122 Photographs of Texas State University____ opposite 122 Summary and Conclusion__________________________ 123 Page THE APPENDIX First Section The Background and Contemporaneous Construction of the Fourteenth Amendment Sustain the States in Their Power to Regulate Their Schools Including the Right to Have Separate Equal Schools for White and Negro Students —-_____________________________ 128 I. Congressional Action: History of Statutes Re lating to Schools and Civil Rights and of the Adoption of the Fourteenth Amendment_____ 128 A. The Period 1861-1865 Preceding the Pro posal of the Fourteenth Amendment During Which Time Congress Established Separate Schools in the District of Columbia_______ 128 B. The Period of the Adoption of the Four teenth Amendment, 1866-1868__________ 129 1. The First Supplemental Freedmen’s Bureau Bill_________________ 130 2. The Civil Rights Act of 1866______ 133 3. The Congressional Resolution Propos ing the Fourteenth Amendment____ 139 4. Acts of Congress Relating to Separate Schools in the District of Columbia_ 151 C. The Period Immediately Following the Adoption of the Fourteenth Amendment in 1868 _________________________________ 153 1. Acts of Congress Relating to Separate Schools in the District of Columbia_ 153 2. The First and Second Enforcement Acts, 1870 and 1871______________ 156 3. The Unsuccessful Attempt to Enact Forced Mixed Schools as Part of a Civil Rights Amendment to The Gen eral Amnesty Bill_______________ 157 4. Debates on the Federal Aid to Edu cation Bill _____________________ 164 5. Sumner’s Attempt to Force Mixed Schools in the District____________ 165 vi Subject Index D. Action and Debates on the Civil Rights Bill of 1875, from the Operation of Which. Public Schools Were Excepted_________________ 167 1. In the House of Representatives, 43rd Congress, 1st Session, 1873-1874____ 167 2. In the Senate, 43rd Congress, 1st Ses sion ____________________________ 173 3. In the 43rd Congress, 2nd Session, 1875 _______ 180 E. The Present Acts of Congress Providing for and Recognizing Separate Schools_______ 186 1. Congress Has Continued to Maintain Separate Schools in the District of Columbia________________________ 186 2. Grants to Separate Land-Grant Col leges ____________________________ 187 3. Grants from National School Lunch Act to Separate Schools-__________ 193 II. Construction of the Fourteenth Amendment by the State Legislatures_______ _______________194 III. Contemporaneous Construction of the Four teenth Amendment and the Civil Rights Acts by the State and Federal Courts________________ 200 Second Section Other Federal and State Court Decisions That the State May Furnish Education to White and Negro Students at Separate Institutions_________________________ 211 Third Section Miscellaneous Matters 1. Announcement of Approval of Negro Law School by American Bar Association_________________ 224 2. Statement of American Bar Association Regard ing Approval of Negro Law School____________ 225 3. Announcement by American Association of Law Schools that the Negro Law School Met Its Standards _________________________________ 227 Page Subject Index vii Page 4. Certificate of Texas Supreme Court Concerning the Admission to the Bar of Henry E. Doyle__ 227 5. Answer of Attorney General of Texas to Request of Federal Council of Churches for Consent to File Amicus Brief___________________________ 228 6. Texas Poll of 1950_________________________ 231 7. The 1950 Act of the Texas Legislature Requiring Separation of White and Negro Citizens in the State Parks________________________________ 234 TABLE OF AUTHORITIES Ccis0s Adamson v. California, 332 U. S. 46______ 46, 48, 51,147 Akins v. Texas, 325 U. S. 398___________________ 33,104 Baldridge v. Scott, 48 Tex. 178_________________ 101 Barrett v. Cedar Hill S. D., 85 So. 125___________ 219 Bartemeyer v. Iowa, 18 Wall- 129_______________ 177 Berea College v. Kentucky, 211 U. S. 45_________ 17 Bertonneau v. Board of Directors, 3 Fed. Cas. 294_____________________________207, 214 Bird v. Pace, 26 Tex. 487_______________________ 101 Blodgett v. Bd. of Ed., 30 S. E. 561______________ 216 Bluford v. Canada, 32 F. Supp. 707______________ 212 Board of Education v. Bunger, 41 S. W. 2d 931__ 217 Board of Education v. Cumming, 29 S. E. 488____ 216 Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28___ 41 Bolin v. Nebraska, 176 U. S. 83__________________ 106 Bond v. Tij Fung, 114 So. 332_________________ 119 Bonitz v. Trustees, 70 S. E. 735------------------------ 220 Boyer v. Garrett, D. C. Md., Dec. 30, 1949------------ 212 Brown v. Board of Trustees, LaGrange Ind. School Dist., S.D. Tex., Feb. 16,1950__________ 211 Brown v. Mississippi, 297 U. S. 278------------------- 35 Brown v. Piper, 91 U. S. 37-------------------------------- 107 Brunson v. North Carolina, 333 U. S. 851------------- 33 Bryant v. Barnes, 106 So. 113_________________ 219 Buchanan v. Warley, 245 U. S. 60---------------------- 40 Burnside v. Douglas School, 261 Pac. 629_________ 215 Carr v. Corning, C.A. D.C. Feb. 14, 1950._____ 28, 71,186 Carter v. School Board, 87 F. Supp. 745_________ 212 Carter v. Texas, 177 U. S. 442___________________ 33 Chambers v. Florida, 309 U. S. 227__________ ____ 35 Chapman v. King, 154 F. 2d 460_________________ 35 Chase v. Stephenson, 71 111. 383_________________ 210 Chesapeake & Ohio Ry. v. Kentucky, 179 U. S. 388_. 16, 42 Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220_______________________________ 106 Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71_18, 33, 42, 74 Chrisman v. Town of Brookhaven, 70 Miss. 477----- 219 Civil Rights Cases, 109 U. S. 3---------------------- 63,159,167 Clark v. Board of Directors, 24 Iowa 266------- 174, 198, 210 Clark v. Williard, 294 U. S. 211_________________ 106 Commonwealth v. Williamson, 30 Leg. Int. 406.—67, 204, 222 Corbin v. School Board, 84 F. Supp. 253------------- 211 Corbin v. School Board, 177 F. 2d 924__________ 211 Page Page Cory v. Carter, 48 Ind 327______________ 68,139, 204, 216 Cumming v. Board of Education, 175 U. S. 528_15, 22,123 Dallas v. Fosdick, 40 How. Prac. 249_____ 67,139, 201, 220 Dameron v. Bayless, 126 Pac. 273______________ 215 Daviess County Board v. Johnson, 200 S. W. 313__ 218 Day v. Atlantic Greyhound, 171 F. 2d 59________ 92 DeWitt v. Brooks, 143 Tex. 122________________ 102 Dove v. Ind. School Dist., 41 Iowa 689__________ 210 Eastham v. Hunter, 98 Tex. 560________________ 102 Eubank v. Boughton, 36 S. E. 529______________ 223 Ex Parte Endo, 323 U. S. 283________ :_________ 37 Fisher v. Hurst, 333 U. S. 147__________________ 26 Franklin v. South Carolina, 218 U. S. 161------------ 33 Gong Lum v. Rice, 275 U. S. 78_____ 21, 34, 42, 45, 74,123 Grady v. Board of Education, 147 S. W. 928_____ 218 Gray v. Luther, 195 S. W. 2d 434________________ 101 Greathouse v. School Board, 151 N. E. 411______ 216 Greenwood v. Rickman, 235 S. W. 425__________ 222 Grovey v. Townsend, 295 U .S. 45______________ 35 Gulf, C. & S. F. Ry. v. Dennis, 224 U. S. 503______ 119 Hall v. DeCuir, 95 U. S. 485_____________ 10,19, 73,123 Harrison v. Riddle, 36 P. 2d 984________________ 215 Hamilton v. Regents of the University of Califor nia, 293 U. S. 245__________________________ 39 Highsmith v. Tyler State B. & T. Co., 194 S. W- 2d 142___________________________ 101 Hill v. Texas, 316 U. S. 400____________________ 33 Hirabayashi v. U. S., 320 U. S., 81_____________ 37 Hunter Co., Inc. v. McHugh, 320 U. S. 222_______ 106 Jordan v. Brophy, 41 Tex. 283_________________ 101 Jumper v. Lyles, 185 Pac. 1084____________ ____ 222 Johnson v. Board of Ed., 82 S. E. 832___________ 220 Johnson v. University of Kentucky, 83 F. Supp. 707 212 Jennings v. Board of Trustees, Hearne Ind. School District (W.D. Tex. 1948, Unreported)_______ 211 Korematsu v. U. S., 323 U. S. 214_______________ 37 Lane v. Wilson, 307 U. S. 268__________________ 35 Lee v. Mississippi, 332 U. S. 742_______________ 35 Lehew v. Brummell, 15 S. W. 765______________ 219 Table of Authorities ix X Table of Authorities Lowery v. School Trustees, 52 S. E. 267__________ 221 Lyons v. Oklahoma, 322 U. S. 596_______________ 85 Maddox v. Neal, 45 Ark. 121___________________ 215 Martin v. Board of Education, 26 S. E. 348_____ 210, 223 McCabe v. A. T. & S. F. Ry. Co., 235 U. S. 15L___ 20, 44,107 McCollum v. Board of Education, 333 U. S. 203__ 71 McGoldrick v. Compagnie Generale Transatlan- tique, 309 U. S. 430__________________________ 104 McMillan v. School Committee, 107 N. C. 609_.___L 221 Missouri Ex Rel. Gaines v. Canada, 305 U. S. 337___________________23, 43, 45, 75,107,124 Missouri Ex Rel. Wabash Ry. v. Public Service Comm., 273 U. S. 126________________________ 119 Missouri (Gaines) v. Canada, 344 Mo. 1238_______ 25 Moore v. Dilworth, 142 Tex. 538________________ 103 Moore v. New York, 333 U. S. 565_____________ 33 Morgan v. Virginia, 328 U. S. 373---------------------- 40 Mullins v. Belcher, 134 S. W. 1151_____________ 218 New York v. Klienert, 268 U. S. 646_____________ 106 Nixon v. Condon, 286 U. S. 73__________________ 35 Nixon v. Herndon, 273 U. S. 536___________ -___ 35 Oyama v. California, 332 U. S. 633_______________ 37 Patrick v. Smith, 90 Tex. 267----------------------------- 102 Patterson v. Alabama, 294 U. S. 600_____________ 119 Patton v. Mississippi, 332 U. S. 463_____________ 33 Pearson v. Murray, 169 Md. 478------------------------ 32 People v. Board of Education, 18 Mich. 400--------- 210 People v. Easton, 13 Abb. (N.Y.) Pr. (N.S.) 159_________ _____________________67, 203, 220 People v. Gallagher, 93 N. Y. 438____________67, 208, 220 People v. School Board of Borough of Queens, 161 N. Y. 598_____________________________30, 67, 220 Pierre v. Louisiana, 306 U. S. 354_______________ 33 Pitts v. Board of Trustees, 84 F. Supp. 975---------- 212 Plessy v. Ferguson, 163 U. S. 537_____ 10,12, 22, 34, 42, 73 Prowse v. Board of Education, 120 S. W. 307------ 218 Puitt v. Gaston, 94 N. C. 709____________________ 221 Railway v. Brown, 17 Wall. 445_________________ 13 Railroad Comm, of Texas v. Mackhank Pet. Co., 144 Tex. 393_______________________________ 1°3 Reynolds v. Board of Education, 72 Pac. 274--------- 217 Page Table op Authorities xi Page Rice v. Elmore, 165 F. 2d 387___________________ 35 Rich v. Ferguson, 45 Tex. 396_________________ 101 Richardson v. Board of Education, 72 Kan. 6 2 9 _ _ _ 217 Roberts v. Boston, 5 Cush. (Mass.) 198_________ 162,218 Robinson & Co. v. Belt, 187 U. S. 41____________ 106 Schelb v. Sparenberg, 133 Tex. 17_____________ 103 School District v. Board, 275 Pac. 292___________ 222 Shelley v. Kraemer, 334 U. S. 1________________ 38 Simmons v. Atlantic Greyhound Corp., 75 F. Supp. 166___________________________ 92 Sing v. Sitka School Bd., 7 Alaska 616______ ____ 214 Sipuel v. Board of Regents, 332 U. S. 631______ 26, 28, 43 Slaughter House Cases, 16 Wall. 36____________ 40 Smith v. Allwright, 321 U. S. 649______________ 35 Smith v. Board of Directors, 40 Iowa 518________ _ 210 Smith v. Robersonville, 53 S. E. 524___________ 221 Smith v. Texas, 311 U. S. 128___________________ 33 Sonora Realty Co. v. Fabens Townsite & Improve ment Co., 13 S. W- 2d 965__________________ 102 Sovereign Camp, W.O.W. v. Patton, 117 Tex. 1---- 103 State v. Albritton, 224 Pac. 511________________ 222 State v. Bd. of Directors, 242 S. W. 545________ 215 State v. Bd. of Education, 7 Ohio Dec. 129------------ 221 State v. Bd. of School Commissioners, 145 So. 575„ 214 State v. Bd. of Trustees of Ohio State University, 126 Ohio St. 290____________________________ 30, 94 State v. Bryan, 39 So. 929__________ -______________ 216 State v. Cartwright, 99 S. W. 48_____ :-------------- 219 State (Bluford) v. Canada, 348 Mo.. 298------------- 213 State (Gaines) v. Canada, 344 Mo. 1238________ 25 State v. Duffy, 7 Nev. 342_________________ 200, 203, 221 State v. Gray, 93 Ind. 303____________________ 217 State v. Grubbs, 85 Ind. 213___________________ 217 State v. McCann, 21 Ohio St. 198____ 67,162,174, 202, 221 State v. Wirt, 177 N. E. 441___________________ 217 State (Michael) v. Witham, 179 Tenn. 250______ 213 Steele v. L. & N. Ry. Co., 323 U. S. 192_________ 36 Strauder v. West Virginia, 100 U. S. 303----------- 33, 34 Sweatt v. Painter, 210 S. W. 2d 442 (1948)--------- 8 Takahashi v. Fish and Game Commission, 334 U. S. 410_____________________________ 36 Truax v. Raich, 239 U. S. 33__________________ 36 Table of Authorities Tucker v. Blease, 81 S. E. 668__________________ 222 Tunstall v. Brotherhood, 323 U. S. 210__________ 36 United States v. Buntin, 10 Fed. 730___________ 214 United States v. Classic, 313 U. S. 299___________ 35 United States v. Dern, 289 U. S. 352____________ 120 Villa v. Van Schaick, 299 U. S. 152_____________ 119 Wall v. Oyster, 36 App. D.C. 50________________ 215 Ward v. Flood, 48 Cal. 36___________________67, 207, 215 Ward v. Texas, 316 U. S. 547___________________ 35 Watts, Watts & Co. v. Unione Austriaca, 248 U. S. 9 119 Waugh v. Mississippi, 237 U. S. 589_____________ 39 White v. Texas, 309 U. S. 631, 310 U. S. 530_____ 35 Whitford v. Board, 74 S. E. 1014_____ 1_________ 221 Williams v. Zimmerman, 192 Atl. 353----- _----------- 218 Willoughby v. Chicago, 235 U. S. 45------------------- 106 Wilson v. Cook, 327 U. S. 474__________________ 106 Wisdom v. Smith, 146 Tex. 420------------------------ 102 Wong Him v. Callahan, 119 Fed. 381---------------- 214 Wright v. Board of Education of Topeka, 284 Pac. 363_______ -______________________ 217 Wrighten v. University of South Carolina, 72 F. Supp. 948_____________ _____ ________ 212 Yick Wo v. Hopkins, 118 U. S. 356______________ - 35 UNITED STATES CONSTITUTION AND STATUTES U. S. Constitution, Article XIV------------- 23, 33, 46, 51,139 D.C. Code, Sec. 31-109_________________________ 64,187 D.C. Code, Sec. 31-1110________________________ 64,187 D.C. Code, Sec. 31-1111________________________ 187 D.C. Code, Sec. 31-1112________________________ 187 D.C. Code, Sec. 31-1113________________________ 187 12 Stat. 394 (1862)_______________________ — 128 12 Stat. 407 (1862)_________________________ 129 12 Stat. 503 (1862)___________________________ 188 12 Stat. 537 (1862)_________________________ 129 13 Stat. 187 (1864)___________________________ 49,129 14 Stat. 27 (1866)_________________________39,133,138 14 Stat. 216 (1866)_________________________ 152 xii Page Table of Authorities xiii Page 14 Stat. 343 (1866)__________________________ 151 16 Stat. 3 (1869)_____________________________ 33 16 Stat. 140 (1870)___________________________ 156 18 Stat. 343 (1866)__________________________ 53 20 Stat. 107 (1878)__________________________ 186 22 Stat. 142 (1882)___________________________ 186 24 Stat. 440 (1887)__________________________ 188 28 Stat. 693 (1885)___________________________ 186 34 Stat. 316 (1906)__________________________ 186 60 Stat. 233 (1946)__________________________ 64,194 7 U. S. Code, § 323_________________________ _ 64,187 STATE CONSTITUTIONS AND STATUTES (Because of the great number of statutes and Con - stitutions referred to, this Index will not list each different statute separately, with the exception of those of Texas, but will refer to the page number on which the laws of the States are mentioned.) Page California: Laws_____________________ 195 Connecticut: Laws_____________________ 199 Delaware: Constitution_______________ 195 Laws_____________________ 195 Illinois: Laws_____________________ 199 Indiana: Laws_____________________ 195 Iowa: Laws_____________________ 198 Kansas: Laws_____________________ 196 Kentucky: Constitution_______________ 196 Laws_____________________ 196 Maine: Laws_____________________ 199 Maryland: Laws_____________________ 196 Massachusetts: Laws_____________________ 199 Michigan: Laws_____________________ 199 Minnesota: Laws_____________________ 199 Missouri: Constitution_______________196,197 Laws____________________ 197 Nebraska: Laws_____________________ 198 XIV Table of Authorities Page Nevada: Laws_______________ ____ 200 New Hampshire: Laws_____________________ 198 New Jersey: Laws_______________ _____ 197 New York: Laws____________________ 30,197 Ohio: Laws_____________________197,198 Oregon: Laws_____________________ 198 Pennsylvania: Laws_______________ _____ 200 Rhode Island: Laws_______________ _____ 198 Texas: Constitution Sec. 7, Art. VII____ ____ 4, 9 Sec. 14, Art. VII___ _____ 4 Laws H. B. 780, 50th Leg., 1947_ 5 S. B. 140, 50th Leg., 1947- 5 S. B. 19, 51st Leg., 1st C. S„ 1950___ .__ 77, 92, 234 Rule 476, Tex. Rule Civ. Pro_________ _____ 102,103 Vermont: Laws_______________ 198 West Virginia: Laws----------------------- 198 Wisconsin: Laws_______________ 199 MISCELLANEOUS Annual Cyclopedia 1871 (1872)—— ----------------- 157 Annual Cyclopedia 1872 (1873)-------------------------- 159 Biographical Directory of the American Congress 1774-1927 _________________________________ 48 Bi-Racial Conference on Education for Negroes in Texas, The Senior Colleges for Negroes in Texas 84 II Blaine, Twenty Years in Congress (1874)----130,163,174 Bond, Education of the Negro in the A,merican Social Order (1934)-------------------------------------- 95,199 Boyd, Some Phases of Educational History in the South Since 1865, Studies in Southern History— (1940) ---------------------- ------------------------------ 95 Dabney, The Negro and His Schooling, The Atlantic Monthly (April, 1942)--------------- 81 Table of Authorities xv Fail-man, Does the Fourteenth Amendment Incor porate the Bill of Rights? The Orignial Under standing, 2 Stanford Law Rev. 134 (1949)____ 53,150 Flack, The Adoption of the Fourteenth Amendment (1908) _________ ____39,130,133,139,150,160,169,180 II Fleming, Documentary History of Reconstruc tion (1907) ________________________________ 156 Garner, Reconstruction in Mississippi (1901)_______ 48 Higher Education for American Democracy. A Re port of the President’s Commission on Higher Education, Vol. II___________________________ 82 Ingle, The Negro in the District of Columbia (1893) ___________________________129,153,154,186 James, II Charles W. Eliot (1930)______________ 89 Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914)_51,139,140,142 Loescher, The Protestant Church and The Negro (1948) ----------------------------------------------------- 88 McPherson, Political History of the U. S. (1875)_ 156 Murray, Negro Handbook (1949)_________ 197 Myrdal, Ayi American Dilemma (1944)____ 88 National Survey of Higher Education of Negroes, General Studies of College for Negroes, Misc. No. 6, Vol. II____________________ 78 Pierce, Memoirs and Letters of Charles Sumner (1893) ------------------------------------------------------ 152,163 Proceedings of the Trustees of the Peabody Educa tional Fund, Oct. 1874 (1875)__________ 95 II Reports of the Committees of the House, 39th Cong., 1st Sess_______________143,144,145 Special Report of Commissioner of Education (1871) ___________________________________ 129 Stephenson, Race Distinctions in American Law (1910) ________________________________ Page 89 XVI Table of Authorities Page Stone, Studies in the American Race Problem (1908) ____________________________________ 93 Storey, Charles Sumner (1900)_________________152,163 36 Survey Graphic, January, 1947______________ 88 The Texas Poll, Jan. 26, 1947________..._________ 85 The Texas Poll, March 18, 1850________________ 86, 281 Thompson, Separate But Not Equal, The Sweatt Case, 33 Southwestern Review 105 (1948)_____ 75 To Secure These Rights. The Report of the Presi dent’s Committee on Civil Rights, U. S. Govern ment Printing Office, 1947___________________ 83 11 Works of Charles Sumner (1875)_____________ 152 IN THE (Emirt of the States October Term , 1949 No. 44 Hem an M arion Sw eatt , Petitioner v . T heophilus Shickel Painter , et al ., Respondents BRIEF FOR RESPONDENTS Preliminary Statement The Court in many decisions has held that the States, which are under no duty under the Federal Constitution to furnish education to anyone, may provide education at their own expense for their white and Negro students in separate schools so long as equal facilities and advantages are offered both groups. These holdings are eminently correct and should be followed. They rightly interpret the intention of Congress which proposed the Fourteenth Amend ment and of the Legislatures of the several States — 2— which adopted it. This Court has correctly decided that the education of the people in schools by State taxation is a matter belonging to the respective States; and that whether a State will furnish edu cation at all, or in classrooms in which white and Negro students are mixed, or whether students will be separated, is to be determined by each State for the best interest of all its people. So long as each student is offered equal facilities and opportunities, none is denied the equal protection of the laws. This Court’s decisions further have correctly recognized that, where the necessity exists, the teach ing of white and Negro students in separate class rooms is a reasonable exercise of the State’s police power to preserve the public peace, harmony, and general welfare. The people of Texas in their Con stitution, and the Legislature in statutes, have de clared that such a necessity exists in Texas. Petitioner here seeks to have the Court overturn its decisions, not only as applied to the graduate schools of universities, but also as applied to all pub lic schools. If the theory of Petitioner and his am ici curiae were followed, the Court would overrule all of its historic decisions under which the States separate persons of the two races in public sanitar iums, schools for the deaf and blind, homes for the aged, and other institutions. He would have this Court annul by judicial decree the police power of the State to separate the races, even though equal facilities are offered both groups. Petitioner and his am ici curiae assume that the great justices who wrote or adopted the previous opinions of this Court were unable correctly to under- — 3— stand and interpret the meaning of the Constitution. It is submitted that those justices not only compre hended the law but the thinking, feeling, and senti ments of the people. These decisions, correct in their holdings, have become ingrained into the society of a very large segment of the people of the United States and thousands of institutions have been es tablished and maintained under their principles. The determination of the desirability, expediency, or necessity of having separate or mixed schools in a particular community or State is a legislative mat ter. The arguments of Petitioner’s sociologists and educators are properly addressable to the Legislative branch or to the people of a State, such as Texas, where the matter is deemed of such importance as to be written into the State Constitution. Respondents therefore contend that the Constitu tional questions in this case have been settled by well reasoned opinions of this Court which should be fol lowed. If the Court decides to look behind those de cisions, it will find that they correctly interpret the Fourteenth Amendment. And if the Court should determine to examine anew the question as to whether there is any reasonable basis for the classi fication of persons in the operation of public schools and colleges, it will find that the reasonableness of and the necessity for such constitutional or legisla tive action still exists today. The above are believed to be the controlling, if not the only, issues before this Court for decision. As will be developed, Petitioner, who stated on the trial that he would attend no separate school however ■4 equal it might be, did not present to the appellate courts of Texas the question of the sufficiency of the evidence to support the trial court’s findings of fact that he was offered equal facilities. That finding of fact of the trial court as to the equality of the two separate law schools in question must therefore be considered as having been established, leaving only the law questions. Even assuming the fact question to be before the Court, Respondents say that there is substantial evi dence to support the trial Court’s findings. More over, the supervening facts as to the Negro law school, occurring since the trial of this case, have so altered the situation that the Court may well con sider that portion of the case moot. Statement of the Case The Courts of Texas, based on a long line of deci sions by this Court, have held that the State may pro vide education for its white and Negro students at different institutions where it is shown that the facilities offered both groups are equal. The admission of Petitioner, a Negro, to the Law School of The University of Texas was denied be cause of the sections of the Texas Constitution re quiring separate equal schools.1 His mandamus was denied by the trial court because of the above hold- 1 Sections 7 and 14 of Article VII and related statutory provisions set out in Appendix to Respondents’ original brief at page 109. To distinguish it from this brief, the brief fiiled by Respondents in opposition to the granting of the petition for certiorari will be referred to as “Respondents’ Original Brief.” — 5- ings of this Court and because it found as a fact that the separate law school for Negroes offered Peti tioner “privileges, advantages, and opportunities for the study of law substantially equivalent to those of fered by the State to white students at The Univer sity of Texas.” (R. 440.) The Texas Legislature in 1947 provided for the establishment of The Texas State University for Negroes to be located at Houston, and for the im mediate establishment of one of its branches, the School of Law, to be located at Austin until the uni versity at Houston was ready to assume the re sponsibility. The statute reads: “It is the purpose of this Act to establish an entirely separate and equivalent university of the first class for Negroes with full rights to the use of tax money and the general revenue fund for establishment, maintenance, erection of buildings, and operation . . .”2 With an initial Legislative appropriation of over three million dollars,3 a grant of 53 acres of land be tween Rice Institute and the University of Houston, and a grant of other assets of the Houston College for Negroes valued in excess of a million dollars, that University was established at Houston.4 2 S. B. 140, 50th Leg. 1947. Set out at page 110 of Ap pendix, Respondents’ Original Brief. s Ibid, Point II. 4 Report of State Auditor to Governor, Aug. 31, 1948, on Texas State University for Negroes. Appendix to Re spondents’ Original Brief, page 99. This transfer was made pursuant to H. B. 780, 50th Leg., 1947, being Art. 2643 (c) Tex. Civ. Stat. (Vernon 1948). It is discussed in the Record. (R. 54.) — 6— The Act also provided: “• . . the Board of Regents of The University of Texas is authorized and required to forth w ith organize and establish a separate School of Law at Austin for Negroes, to be known as the ‘School of Law of The Texas State University for Negroes’ and therein provide instruction in law equivalent to the same instruction being of fered in law at The University of Texas. . . .”5 With an additional appropriation of $100,000.00 that Law School was established (R. 36, 43, 86).6 Petitioner stated on the trial that even if the Negro law school was the absolute equivalent of the Law School of The University of Texas, he would not attend it. (R. 188.) The trial court’s judg ment recites that: “From his own testimony, Relator would not register in a separate law school no matter how equal it might be and not even if the separate school affords him idential advantages . . .”7 On March 3, 1947, the Registrar wrote Petitioner that the School of Law would be open March 10, 1947, and that his application theretofore made (to The University of Texas) and his qualifications would entitle him to enter.8 5 Italics are added throughout this brief unless otherwise indicated. 6 Before the school was established, Petitioner testified by deposition that he would attend a separate equal law school. (R. 179.) On the trial, he stated that he had chang ed his mind. (R. 182.) 7 R. 440. 8 R. 159, 372; Respondents’ Exhibit 13. — 7— The letter informed Petitioner that his instruc tors would be the sam e professors who were and are teaching at the School of Law of The University of Texas; that the courses, texts, collateral readings, standards of instruction, and standards of scholar ship would be identical with those prevailing at the School of Law of The University of Texas; that a library was being installed, and that full use of the library of the Supreme Court of Texas was available prior to the delivery of a complete new library then on order; and that the new library would include all books required to meet the standards of the Amer ican Association of Law Schools and the American Bar Association.9 Although Petitioner received the letter, he did not answer it. Without coming to Austin to talk to the Dean, the Registrar, or any of his prospective pro fessors (R. 186), and without making any personal investigation of the school, the courses, faculty, or physical plant, he decided not to attend.10 The school was nevertheless ready to receive and instruct him.11 After hearing the evidence, the trial court found in its judgment: “. . . this Court finds . . . that . . . the Respondents herein, . . . have established the School of Law of the Texas State University for Negroes in Austin, Texas, with substantially equal facilities and with the same entrance, classroom study, and graduation requirements, and the same courses and the same instructors 9 R. 372-374. 10 R. 174, 175, 177, 186. 11R. 86. ■8— as the School of Law of The University of Tex as ; that such new law school offered to Relator privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at The University of Texas; that Realtor, although duly notified that he was eligible and would be admitted to said law school March 10, 1947, de clined to register . . .”12 Petitioner appealed to the Texas Court of Civil Appeals but Petitioner did not invoke the jurisdic tion of that Court as to the want or sufficiency of the evidence to support the findings of fact as to the equality of the separate schools.13 That Court found in its opinion that “ O ur jurisd iction in this la tter re gard w as not invoked in this case. . . . However . . . were our jurisdiction in that regard properly invoked, we would be constrained to hold that its preponderance and overwhelming weight supports the trial court’s judgment.”14 Nor was the jurisdic tion of the Texas Supreme Court invoked to consider whether there was evidence to support the findings of fact and the judgment. In the absence of such point of error that Court had no jurisdiction to pass on the matter.15 So the fact issue of whether Petitioner was offered equal facilities, not having been presented to the ap- 12 R. 440. 13 This is developed in Respondents’ Point IV. 14 R. 461. The opinion of the Texas Court of Civil Appeals is reported in 210 S. W. (2d) 442 (1948). 15 The Texas Supreme Court refused Petitioners’ ap plication for a writ of error. Except on very rare occasions, that Court does not write an opinion on refusing a writ of error. None was written in this case. — 9— pellate courts of Texas, is not properly before this Court. But assuming the issue to be properly before this Court, there is ample evidence to support the trial court’s findings of fact and judgment. As will be shown in the Addendum to this brief, the Negro Law School, after the trial of this case, was moved to Houston to become a permanent part of Texas State University, as contemplated in the statute. With its fine library of over 24,000 volumes and its up-to-date facilities in the new buildings in which it is housed, it has been found to meet the standards of the American Bar Association and the American Association of Law Schools. It has been granted provisional approval by the American Bar Association. Its accreditation by the American As sociation of Law Schools is contingent upon the out come of this suit. The law question remaining, therefore, is whether the State, which is not obligated by the Federal Con stitution to furnish education to anyone, may pro vide education for its white and Negro students in separate schools providing equal facilities for both. First Point Section 7 of Artice VII of the Texas Constitution and related statutes providing that the State shall furnish equal education to its Negro and white stu dents in separate schools are constitutional. The power of the States to so classify and the reason ableness of this classification have been settled as a matter of law by this Court as not violative of the equal protection clause of the Fourteenth Amend ment. Argument and Authorities The decisions of this Court are uniform in their holding that states may, by Constitution or statute, provide separate establishments for the education of their Negro and white students, provided equal facilities and opportunities are made available to each group. Related to the education cases are transportation cases. They are cited for their hold ings on the “equal protection clause.” United States Supreme Court Decisions Petitioner and his supporting am ici curiae would make it appear that P lessy v. F ergu son is the only decision of this Court in which the validity of the separation of the races, and the reasonableness of the classification as to race when equal facilities are furnished, has been considered. An examination of the cases will show that both of these related questions have been many times examined and re examined. The fact that the principles were and are so well established that the Court believed it unnecessary to write extensively on them in each case is certainly not to be taken to mean that this Court did not carefully weight and consider its de cision in each case. The principal decisions of this Court on this point are presented in chronological order. 1. H all v. D eC uir, 95 U. S. 485 (1877). A Louis- ana statute provided for enforced commingling of — 10— — li the races in common carriers. A steamboat master operating in interstate commerce, separated Negro and white passengers and was sued for damages for having denied a Negro woman the right to remain in cabins reserved for whites. A judgment against him resulted. In reversing the judgment, this Court held that the Louisiana statute was an interference with interstate commerce and that Congressional in action left the ship’s master free to adopt such reasonable rules as seemed best for all concerned. Said the Court: “ . . . we think this [Louisana] statute, to the extent that it requires those engaged in the transportation of passengers among the states to carry colored passengers in Louisana in the same cabin with whites, is unconstitutional. . . .” 95 U. S. 490. Mr. Justice Clifford concurring, went into the matter more fully, including the reasonableness of the classification: . . Substantial equality of right is the law of the State and of the United States; but equal ity does not mean identity, as in the nature of things identity in the accommodation afforded to passengers, whether colored or white, is im possible. . . . ” 95 U. S. at 503. Reviewing the authorities, he wrote: “Questions of a kindred character have arisen in several of the States, which support these views in a course of reasoning entirely satisfac tory and conclusive..................equality of rights - 1 2 - does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school; and that any classification which p re serves substantially equal school advantages is not prohibited by eith er the S tate or F ederal Constitution, nor would it contravene the provi sions of either. . . . “Separate primary schools for colored and for white children were maintained in the city of Boston. . . . Distinguished counsel insisted that the separation tended to deepen and per petuate the odious distinction of caste; but the court responded, that they were not able to say that the decision was not founded on just grounds of reason and experience, and in the results of a discriminating and honest judg ment. . . . “Age and sex have always been marks of classification in public schools throughout the history of our country, and the Supreme Court of Nevada well held that the trustees of the public schools in that State might send colored children to one school and white children to an other. . . .” “. . . and it is settled law there that the (school) board may assign a particular school for colored children, and exclude them from schools assigned for white children, and that such a regulation is not in violation of the Four teenth Amendment.” 95 U. S. at 506. 2. P lessy v. F ergu son , 163 U.S. 537 (1896). A later Louisiana statute required that colored and white passengers be furnished separate accommoda tions on carriers. Plessy, a Negro, was convicted for - 1 3 - refusing to occupy the section set aside for his race. The railroad did not operate in interstate commerce. It was squarely contended by Plessy that the state law, as applied to him, violated the equal protec tion clause.16 In overruling the contention, this Court said: “The object of the (14th) Amendment was un doubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce so cial, as distinguished from political equality, or a commingling of the two races upon terms un satisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the compe tency of the state legislatures in the exercise of their police power. The m ost com m on instance o f this is connected w ith the establishm ent o f separate schools fo r w hite and colored children, which has been held to be a valid exercise o f the 16 Among the questions presented in the brief for plaintiff in error (Plessy) was: “Has the State the power under the provisions of the Constitution of the United States to make a distinction based on color in the enjoyment of chartered privileges within the State?” (Page 5, his Brief.) The Court also had before it Railway v. Brown, 17 Wall 445 (1873). Based on a provision of a private charter granted by Congress in 1863 applicable only to one particular line in the District of Columbia, it was held that Negroes could not be excluded from its cars. Petitioner does not rely on the case, but it is cited in some of his amici briefs. The Court in the Plessy case considered the Brow n case and expressly distinguished it as dealing with “laws of a par ticular locality.” 163 U. S. at 545. — 14— legislative 'power even by courts o f S tates w here the political righ ts o f the colored race have been longest and m ost earnestly enforced . . . . “The distinction between laws interfering with the political equality of the Negro and those requiring the separation o f the tw o races in schools, . . . and railway carriages has been freq u en tly draw n by this court. . . . “ So fa r , then, as a con fict w ith the F ou r teen th A m endm ent is concerned, the case r e duces itse lf to the question w h ether the sta tu te o f Louisiana is a reasonable regulation , and with respect to this there must necessarily be a large discretion on the part of the Legislature. In determ ining the question o f reasonableness it is at liberty to act with reference to the es tablished usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. . . . “. . . When the government, therefore, has se cured to each of its citizens equal rights before the law and equal opportunities for improve ment and progress, it has accomplished the end for which it was organized and performed all of the functions respecting social advantages with which it is endowed.” - 1 5 - Petitioner cites Mr. Justice Harlan’s vigorous dis sent in this case as an indication that he would have thought also that separate schools were violative of the Fourteenth Amendment. It is significant that in his long list of “inequalities” which he said the majority opinion would permit, Mr. Justice Harlan did not mention separation in public education. In view of the obvious omission of the school question from his dissent and his subsequent words in Cum- ming v. B oard o f E ducation and B erea College v. K entucky, in fra , it is difficult to understand how anyone could conclude that Mr. Justice Harlan be lieved separate but equal school systems to be uncon stitutional. 3. Cam m ing v. B oard o f Education, 175 U.S. 528 (1899). An action was brought to restrain the Board from maintaining a high school for white chil dren without maintaining one for Negro children. The Constitution of Georgia which stated that “separate schools shall be provided for the white and colored races” was before this Court and quoted in its opinion. The injunction was denied. It was held that the equitable relief sought was not a proper remedy. Mr. Justice Harlan, speaking for the Court, said: “Under the circumstances disclosed, we can not say that this action of the State court was, within the meaning of the Fourteenth Amend ment, a denial by the State to the plaintiffs, and to those associated with them of the equal protection of the laws, or of any privilege be longing to them as citizens of the United States. We may add that while all admit that the ■ 16- benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education o f the people in schools m aintained by sta te taxation is a m a tter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” This language of Mr. Justice Harlan was quoted with approval by this Court in Gong Lum v. R ice , 275 U. S. 78 at 85, hereinafter discussed. 4. Chesapeake & Ohio R y. v. K en tu cky , 179 U.S. 388 (1900). A Kentucky statute required railways to furnish separate cars for white and Negro passen gers. Upon being convicted for violations of the act, the railway appealed. After determining that the Kentucky act applied only to its domestic and not interstate commerce, this Court concluded, under the D eC uir and other cases, that “there can be no doubt as to its constitutionality.” To emphasize that this Court did consider and pass upon the separation of the races under the equal pro tection clause, the following is quoted from Mr. Jus tice Brown’s opinion. It refers to the P lessy case: “On writ of error from this court, it was held that no question of interference with interstate commerce could possibly arise, . . . Indeed, the act was not claimed to be unconstitutional as an interference with interstate commerce, but its invalidity was urged upon the ground that it — 17— abridged the privileges or immunities of citi zens, deprived the petitioner of his property without due process of law, and also denied him the equal protection o f the laws. H is contention w as overruled, and the sta tu te held to be no violation o f the F ourteen th A m endm ent.” 179 U. S. at 393. 5. B erea College v. K en tu cky, 211 U. S. 45 (1908). A private college, a Kentucky corporation, was convicted of violation of a Kentucky statute which made it unlawful for a person or corporation to operate a school or college which received both white and Negro students. Wrote Mr. Justice Brewer: “. . . the single question for our considera tion is whether it (the statute) conflicts with the Federal Constitution. . . . That the Legis lature of Kentucky desired to _ separate the teaching of white and colored children may be conceded. . . .” 211 U. S. at 53, 55. The statute was upheld. Corporations being crea tures of the State, it could grant or withhold cor porate powers. The holding was that the State could, within the Fourteenth Amendment, prohibit the teaching of white and Negro students together in the same priv ate school or college. It goes much further than the public schools.17 The breadth of the holding is 17 Mr. Justice Holmes, who is quoted at several places in Petitioner’s brief, was a member of the concurring ma jority in this case as well as the Chiles v. Chesapeake & Ohio, McCabe v. A . T. & S. F., and Gong Lum v. Rice, cases hereinafter discussed. ■18— emphasized in the dissent by Mr. Justice Harlan, who points out that the title of the act read : “An Act to prohibit white and colored per sons from attending the same school.” He further pointed out that the trial court over ruled the objection that the statute violated the Fourteenth Amendment, and that the highest court of Kentucky held that it was entirely competent for the State to adopt the policy of the separation of the races. He wrote: “It is absolutely certain that the legislature had in mind to prohibit the teaching of the two races in the same private institution, at the same time by whomever that institution was conducted.” 211 U.S. at 62. Mr. Justice Harlan made it clear that his dissent was leveled only at the requirement for separation of the races at private institutions. As to the public schools, Mr. Justice Harlan said: “ O f course w hat I have said has no re feren ce to regulations prescribed fo r public schools, es tablished at the pleasure o f the State and main tained at the public expense.” 211 U.S. at 69. 6. Chiles v. Chesapeake & Ohio R y ., 28 U.S. 71 (1910). Chiles, a Negro traveling in interstate com merce, was required to move to a section set apart for Negroes. The Kentucky courts held that their statute requiring separation of the races was not applicable to interstate passengers. It denied relief on the basis of the regulations of the railway com- — 19— pany requiring separation. The only questions be fore this Court concerned the validity and reason ableness of those regulations. This Court first considered the commerce clause. Hall v. D eC uir was followed in its holding that in the absence of Congressional regulation of interstate commerce, carriers may make reasonable regulations for the safety and comfort of their passengers. Regarding the reasonableness of the regulation, this Court turned to P lessy v. F ergu son : “The statute was attacked on the ground that it violated the Thirteenth and Fourteenth Amendments of the Constitution of the United States. The opinion of the court . . . reviewed prior cases, and not only sustained the law but justified as reasonable the distinction betw een the races on account o f which the sta tu te was passed and enforced . It is true the power of a legislature to recognize a racial distinction was the subject considered, but if the test of reason ableness in legislation be, as it was declared to be, The established usages, customs and tradi tions of the people’ and the ‘promotion of their comfort and the preservation of the public peace and good order,’ this must also be the test of the reasonableness of the regulations of a carrier, made for like purpose and to secure like results. R egulations which are induced by the general sentim ent o f the com m unity fo r whom they are made and upon whom they operate, cannot be said to be unreasonable. See also Chesapeake & Ohio R y. Com pany v. K en tucky, 179 U.S. 388.” The following paragraph clearly indicates that this Court did reconsider the constitutionality of separate - 2 0 - equal facilities and the classification of persons as to race. It also indicates that the Court, after consid eration, was satisfied with the opinion of Mr. Justice Clifford in the D eC uir case and its decision In the P lessy case, and that further writing on the subject was simply unnecessary. The opinion reads: “The extent of the difference based upon the distinction between the white and colored races which may be observed in legislation or in the regulations of carriers has been discussed so m uch that w e are relieved from fu rth er en large m ent upon it. We may refer to Mr. Justice Clif ford’s concurring opinion in H all v. D eC uir for a review of the cases. They are also cited in P lessy v. F ergu son at page 550. We think the judgment should be affirmed.” 7. M cCabe v. A . T .& S. F . R y. C o., 235 U.S. 151 (1914). Action by Negro citizens to enjoin enforce ment of an Oklahoma statute requiring separation of white and colored citizens on trains and in wait ing rooms because (1) such statute violated the Fourteenth Amendment, and (2) the statute consti tuted a burden on interstate commerce. With reference to the Fourteenth Amendment, this Court, speaking through Mr. Justice Hughes, ex pressly approved the holding of the Circuit Court: “That it had been decided by this court, so that the question could no longer be considered an open one, that it was not an infraction of the 14th Amendment for a State to require sep arate, but equal, accommodations for the two races.” — 21— 8. Gong Lum v. R ice, 275 U. S. 78 (1927) is a case directly in point. The Constitution of Mississippi, the pertinent portion of which is set out in this Court’s opinion, read: “Separate schools shall be maintained for children of the white and colored races.” A Chinese girl, classified as “colored” under Mis sissippi law, was denied admission to the white school. A direct attack was made on the constitu tionality of the separation of the races for schooling purposes, the contention being made that such was a violation of the equal protection clause of the Four teenth Amendment. The first assignment of error in this Court was: “A child of school age and otherwise qualified . . . is denied the equal protection of the laws when she is excluded from such school solely on the ground that she is a Chinese child and not of the Caucasian race.” (Brief and Argument for Plaintiff in Error, p. 5 .)18 Mr. Chief Justice Taft, speaking for a unanimous Court composed of himself and Justices Holmes, Van Devanter, Brandeis, Stone, McReynolds, Suther land, Butler, and Sanford, clearly stated the ques tion before the Court: 18 This point is stressed in these cases because of the asser tion by Petitioner and his supporting amici curiae that this Court his never considered and passed on the question, or that if it did consider it in the Plessy case, it has not recon sidered it since then. The assertion is, of course, unfounded and reflects upon the opinions of this Court which plainly recite or clearly show that the matter was before the Court and decided upon. — 22— “The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry born in this country, and a citizen of the United States, equal protection of the laws by giving her the opportunity for a common school education in a school which re ceives only colored children of the brown, yellow or black races.” Showing that the Court was especially concerned with the constitutionality of separate schools under the equal protection clause, he stated more specifi cally : “The question here is whether a Chinese cit izen of the United States is denied equal 'protec tion of the laws when he is classed among the colored races and furnished facilities for educa tion equal to that offered to all, whether white, brown, yellow, or black.” Id. at page 85. Again having considered the matter (and having reconsidered the principles of the Plessy case) the Court found the previous decisions of Cumming v. Board of Education and the Plessy case sound. The opinion used Mr. Justice Harlan’s words from the Cumming opinion: “We cannot say that this action . . . was, within the meaning of the Fourteenth Amend ment, a denial . . . of the equal protection of the laws. . . . We may add that, while all admit that the benefits and burdens of public taxation must be shared . . . without discrim ination against any class on account of their rape, the education of the people in schools main tained by state taxation is a matter belonging to the respective states . . .” -23— The opinion continued, “In Plessy v. Ferguson . . . in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separa tion of the white and colored in railway coaches, a more difficult question than this, this Court, speaking of permitting race separation, said, “ £The most common instance of this is con nected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legis lative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.’ ” Finding it unnecessary to write further, the Chief Justice said for the Court, “ . . . 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.” The Court concluded: “The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear. . . .” “ The decision is within the discretion of the State in regulating its public schools and does not conflict with the Fourteenth Amendment. The judgment of the Supreme Court of Missis sippi is affirmed.” 9. Missouri ex rel, Gaines v. Canada, 305 U.S. 337 (1938). Gaines, a Negro, was refused admis- -24 sion to the School of Law of the University of Mis souri. The question before this Court was stated at the beginning of the opinion: “Asserting that this refusal constituted a denial by the State of the equal protection of the laws in violation of the Fourteenth Amend ment . . . petitioner brought this action for mandamus to compel . . . the University to admit him.” The first point raised in this Court in the Petition for Certiorari (p. 17) was: “The State of Missouri denied petitioner the equal protection of the laws in excluding him from the School of Law of the University of Missouri solely because he is a Negro.” Upon a finding that there was no school of law for Negroes, and that there was no mandatory duty upon any official to establish such a school, this Court held that “ in the absence of other and 'proper provisions for his legal training within the State,” Gaines would be entitled to enter the University of Missouri Law School. Mr. Chief Justice Hughes, speaking for the ma jority composed of himself, two members of the pres ent Court, Mr. Justice Black and Mr. Justice Reed, and Justices Brandeis, Stone, and Roberts, again an nounced the considered opinion of this Court on the principles applicable here: “In ̂ answering petitioner’s contention that this discrimination constituted a denial of his constitutional right, the state court has fully ■25- recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded for white students. The State has sought to ful fill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions.” (citing with approval the Plessy, McCabe, and Gong Lum decisions.) “ . . . The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the sep arated groups within the State.” “Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders fa cilities for legal education substantially equal to those which the State there afforded for per sons of the white race. . . .” “We are of the opinion . . . that petitioner was entitled to be admitted to the law school of the State University in the absence of other and proper provision for his legal training within the State.” 13 The dissent in the case by Justices Butler and McReynolds was not from the announced principles of the validity of separate schools where there are 19 The cause was remanded to the Missouri Supreme Court. Its subsequent decision, 344 Mo. 1238, 131 S. W. (2d) 217 (1939), recognizes that the Legislature had enact- a statute making it mandatory that equal educational oppor tunities be afforded colored students. It remanded the cause to the trial court for a finding on such equality by the open ing of the next school year. No further proceedings oc curred. - 2 6 - separate equal facilities within the State, but was on the proposition that Missouri already had complied with the Constitution by making a legal education available to petitioner in out-of-State schools. The recent case of Sipuel v. Board of Regents, 332 U.S. 631 (1948), was a mandamus proceeding by a Negro to compel her admission to the University of Oklahoma law school.20 The relief was denied by the State court principally on the ground that Sipuel had not made proper demand for the establishment of a separate law school. The brief Per Curiam hold ing of this Court was: “The petitioner is entitled to secure legal edu cation afforded by a state institution. To this time, it has been denied her although during the same period many white applicants have been afforded legal education by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group. Missouri ex rel. Gaines v. Canada. . . In Fisher v. Hurst, 333 U.S. 147 (1948) the same petitioner, nee Sipuel, brought an original action in this Court to compel compliance with this Court’s mandate in the Sipuel case. Following the Sipuel 20 The petition for certiorari did not present the issue of “whether a State might not satisfy the equal protection clause . . . by establishing a separate law school for Ne groes” (F isher v. H urst, 333 U.S. 147, 150). Neverthe less, the Court’s disposition of the case is significant in that it approved the same procedure as previous decisions in which the point was specifically raised and decided upon. - 2 7 - decision, the Oklahoma Supreme Court directed the Board of Regents of Oklahoma University: . . to afford to plaintiff, and all others similarly situated, an opportunity to commence the study of law at a state institution as soon as citizens of other groups . . . in conformity with the equal protection clause . . . and with the provisions of the Constitution and statutes of this State requiring segregation. . . .” Pursuant thereto, the trial court ordered that un less the separate law school was established and ready to function at the designated time applicable to any other group, the Board of Regents must: “ (1) enroll plaintiff . . . in the first-year class of the School of Law of the University of Oklahoma, in which school she will be entitled to remain . . . until such a separate law school for negroes is established. . . . “ (2) not enroll any applicant of any group . . . until said separate school is established.. . . “It is further ordered . . . that if such a separate law school is so established . . . the defendants . . . are hereby ordered . . . to not enroll plaintiff in the first-year class of the School of Law of the University of Oklahoma. . . .” 333 U.S. at 149. In the original proceeding the question before this Court was whether its mandate in the Sipuel case had been followed. This Court concluded that: “It is clear that the District Court . . . did not depart from our m a n d a te” — 2 8 — This Court explained the Sipuel case: “The Oklahoma Supreme Court upheld the refusal to admit petitioner on the ground that she failed to demand establishment of a sep arate school. . . . On remand, the District Court correctly understood our decision to hold that the equal protection clause permits no such defense.” The Sipuel case, citing the Gaines case with ap proval, therefore took cognizance of the long estab lished principle that separate schools may be pro vided so long as the facilities are equivalent.21 It made clear that the opportunities must be provided for the Negro students as soon as they are made available to white students. In this case, the School of Law of the Texas State University was available to Petitioner at the time of this trial and is still available to him. Other Federal and State Court Cases In Carr v. Corning (C.C.A., D.C., decided Feb ruary 15, 1950, unreported as yet), a mandatory injunction was sought to compel the admission of 21 Even Justice Rutledge in his dissent recognized that the separate but equal doctrine had been applied, although he disagreed with the manner of its application by the State Court. In explaining his interpretation of this Court’s mandate in the Sipuel case he said: “It also meant that this should be done if not by ex cluding all students, then by affording petitioner the advantages of a legal education equal to those afforded to white students. And in my comprehension the equality required was equality in fact, not in legal fiction.” — 2 9 - Negro students into the schools designated for white students in the District of Columbia. It was urged, as stated by the Court, that “the separation of the races is itself, apart from the equality or inequality of treatment, forbidden by the Constitution.” “The question thus posed,” continued the Court, “is whether the Constitution lifted this problem out of the hands of all the legislatures and settled it. We do not think it did.” That Court, after reviewing the history of the Amendment and the Civil Rights Acts, said that the contemporaneous legislation by the Congress as to separate schools “conclusively supports our view of the amendment and its effects.” It continued, “The Supreme Court has consistently held that if there be an ‘equality of the privileges which the laws give to the separated groups’ the races may be separated. That is to say that constitutional invalidity does not arise from the mere fact of separation but may arise from an inequality of treatment. Other courts have long held to the same effect.” The Court, one judge dissenting, thereupon sus tained the validity of the separate schools in the Dis trict of Columbia. Many of the strongest cases upholding the consti tutionality of separation of the races have come from the highest courts of states outside the South. These cases, together with the many cases decided in the Southern States are set out in the Appendix beginning on page 211. They form a great body of the law on which thousands of schools and the struc- — 30— ture of other important State functions of many States have been built. They are an important body of cases. They are placed in the Appendix in the interest of brevity. Two of the cases decided out of the South are here set out as illustrative. In People v. School Board of Queens, 161 N. Y. 598, 56 N. E. 81 (1900), the only question was “whether the borough of Queens is authorized to maintain separate schools for the education of col ored children.” In upholding such action, the high est New York Court declared: “The most that the constitution requires the legislature to do is to furnish a system of com mon schools where each and every child may be educated,— not that all must be educated in any one school, but that it shall provide or fur nish a school or schools where each and all may have the advantages guaranteed by that instru ment. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the constitution to deprive it of the right to so provide. It was the_ facilities for and the advantages of an edu cation that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such ed ucation was being obtained. . . .”22 In State ex rel. Weaver v. Board of Trustees of Ohio State U., 126 Ohio St. 290, 185 N. E. 196 22 New York enacted a statute in 1900 which prohibits separation of the races in schools. 2 N. Y. Laws 1900, ch. 492, p. 1173. The enactment of such statute is fully within the power of the State, just as laws requiring separation. This statute does not change the holding of the Courts where the statutes permit or require separation. — 31— (1933) Ohio State University had offered a home economics course in which female students operated a residence wherein they lived. The course included cooking, buying, etc. A Negro’s application for this course was refused, and an equivalent course was of fered. She sued to compel her admission. The Ohio Supreme Court wrote in denying the mandamus: _ “ ‘Any classification which preserves substan tially equal school advantages is not prohibited by either the state or federal constitution, nor would it contravene the provisions of either.’ . . . the respondents had full authority to prescribe regulations that will prove most beneficial to the university and state and will best conserve, pro mote, and secure the educational advantages of all races. The purely social relations of our cit izens cannot be enforced by law; nor were they intended to be regulated by our own laws or by the state and Federal Constitutions. . . . ‘When the government, therefore, has secured to each of its citizens equal rights before the law, and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the_ functions respecting social advantages with which it is endowed.’ ” PETITIONER’S CASES DISTINGUISHED None of the cases cited by Petitioner holds that a State may not constitutionally provide education for its white and Negro students at separate schools where equal education is furnished to both groups. The cases above cited, and those hereinafter men tioned, are uniformly to the contrary. — 32— The cases cited by Petitioner are principally those involving complete exclusion of Negroes or discrimi nation (as distinguished from' separation) against persons of the Negro or Oriental races in matters of civil and political rights, such as jury service, voting in primaries, acquiring and holding property, earn ing a living, obtaining confessions by duress, and the like. These cases are obviously distinguishable from situations where persons of the white and Negro races are offered, at the State’s expense, equivalent opportunities for obtaining an education. Pearson v. Murray Maryland having no separate law school, a man damus was granted admitting a Negro to the Univer sity of Maryland Law School. The opinion, however, recognized that where equal opportunities are offer ed, a State may offer education at separate institu tions : “Equality of treatment does not require that privileges be provided members of the two races in the same place. The state may choose the method by which equality is maintained. Tn the circumstances that the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public expense.’ ” 169 Md. 478, 182 Atl. 590 (1936.) — 33— Civil and Political Rights Cases There are several cases which hold that under the 14th Amendment state action that prevents Ne groes from serving on juries, or systematically ex cludes them, is unconstitutional. Strauder v. W est V irginia, 100 U. S. 303, simply holds that where a Negro is convicted of murder upon an indictment by a grand jury upon which no Negro served or could serve, the conviction must be reversed. The case is one of complete exclusion and discrimination, and not one of separation with equi valent facilities.23 As will be seen in Part II of this Brief, Congress early interpreted the Fourteenth Amendment to in clude equal protection in jury service. In 1869, it re pealed its laws for the District of Columbia which had made Negroes ineligible for Jury service.24 And 23 One of this group of cases, Franklin v. South Carolina, was argued the same week (April 18), and handed down the same day (May 31, 1910) as Chiles v. Chesapeake & Ohio Ry. which upheld as reasonable a carrier’s regulation sepa rating the races, showing a clear distinction in the minds of the Court. 218 U. S. 71 and 161. Other cases involving jury service are Carter v. Texas', 177 U. S. 442 (1900) (grand jury) ; P ierre v. Louisiana, 306 U. S. 354 (1939) (grand jury) ; Smith v. Texas, 311 U. S. 128 (1940) (grand jury) ; Hill v. Texas, 316 U. S. 400 (1942) (grand jury) ; Patton v. Mississippi, 332 U. S. 463 (1947) (grand jury) ; Brunson v. N orth Carolina, 333 U. S. 851 (1948) (grand jury). But cf. Akins v. Texas, 325 U. S. 398 (1945), and Moore v. N ew York, 333 U. S. 565 (1948). 24 Act of March 18, 1869, 16 Stat. 3: “ . . . the word ‘white’ wherever it occurs in the laws relating to the Dis trict of Columbia . . . and operates as a limitation on the right of any elector . . . to hold any office or to be selected and serve as a juror . . . is hereby repealed.” -34- Section 4 of the Civil Rights Act of 1875 provided that no citizen should be disqualified for jury service on account of race. 18 Stat. 335. On the other hand, as will be discussed on pages 46 to 64, Congress main tained separate schools in the District of Columbia before, during, and after the adoption of the Fourteenth Amendment and specifically remov ed the reference to schools from various proposals including the 1875 Civil Rights Act in order to leave that matter to the States. The Strauder case was considered at length in the Plessy case. Mr. Justice Strong, who wrote the Strauder case, was among the majority in the Plessy case and therefore agreed with that opinion which expressly distinguished the Strauder case, saying: “The distinction between laws interfering with the political equality of the Negro and those requiring the separation of the races in schools . . . and railroad carriages has been frequently drawn by this Court. Thus in Strauder v. West Virginia . . .” 163 U. S. at 545. The Strauder case was also unsuccessfully urged on the Court in the Gong Lum case, 275 U. S. at 79, The distinction between exclusion from jury service in a case involving one’s life, liberty, or property and cases involving the furnishing of equal education, at the expense of the State, to white and Negro students in different buildings, was clear to the Court. 35— To the same effect are cases involving voting rights.25 The right to vote is a political right guar anteed by the Federal Constitution. These cases have nothing to do with offering of equal facilities in education. There are several cases which have reversed crim inal convictions of Negroes where it was shown that the convictions were based on confessions which were obtained under duress.26 Obviously these duress cases apply to white as well Negro citizens. The obtaining of a confession by whipping and burning, whether applied to Negro or white, has nothing to do with the offering of equivalent facilities for ed ucation. The Chinese and Japanese Exclusion Cases A short summary of the facts of these cases will show their distinction. Yick W o v. H opkins, 118 U. S. 356 (1886). A broad city ordinance gave a board unbridled power. The board arbitrarily refused to license 200 Chinese 25 Nixon v. Herndon, 273 U. S. 536 (1927) ; Nixon v. Con don, 286 U. S. 73 (1932) ; Lane v. Wilson, 307 U. S. 268 (1939) ; TJ. S. v. Classic, 313 U. S. 299 (1941) ; Smith v. Allwright, 321 U. S. 649 (1944) overruling Grovey v. Town send, 295 U. S. 45; Chapman v. King (C.C.A. 5th, 1946), 154 F. (2d) 460, cert. den. 327 U. S. 800; and Rice v. El more (C.C.A. 4th, 1947), 165 F. (2d) 387, cert. den. 333 U. S. 875 (1948). 26 Brown v. Mississippi, 297 U. S. 278 (1936) ; Chambers v. Florida, 309 U. S. 227 (1940) ; White v. Texas, 309 U. S. 631, 310 U. S. 530 (1940) ; Ward v. Texas, 316 U. S. 547 (1942) ; and Lee v. Mississippi, 332 U. S. 742 (1948). But cf. Lyons v. Oklahoma, 322 U. S. 596 (1944). - 3 6 - laundrymen and licensed 80 non-Chinese similarly situated. It was held that the equal protection clause applied to aliens, and that these Chinese were not afforded equal protection. They were not given equal opportunity but were completely deprived of the right to work and earn a living. Truax v. Raich, 239 U. S. 33 (1915). An Arizona statute required employers to employ at least 80% qualified electors or citizens. Raich, an alien cook, was about to be fired simply because he was not a citizen. As in theYick Wo case, it was held that the statute did not give Raich equal protection of the laws. The Court said that the Legislature does not have the power “to deny to lawful inhabitants, be cause of their race or nationality, the ordinary means of earning a livelihood . . . the right to work . . . is the very essence of personal freedom and op portunity that it was the purpose of the ll+th Amend ment to secure.” Takashashi v. Fish and Game Comm., 334 U. S. 410 (1948), falls under the above ruling. There the California statute kept an alien Japanese from fishing. It was the right to work which was pro tected. Also among these “right to work” cases are Steele v. L. & N. Ry., 323 U. S. 192 (1944), and Tunstall v. Brotherhood, 323 U. S. 210 (1944). The Court held that where Congress made a union the exclusive bargaining agency for railroad employees, that union must represent the Negro as well as white workers and not deprive the Negroes of the opportu- — 37— nity to obtain the better jobs simply because of race, citing the Yick Wo case. The union must represent both groups equally. Underscoring the distinction in the types of cases, the Gaines case was cited with approval. 323 U. S. at 203. These cases hold that a person may not be de prived of earning a living and kept from working at his trade simply because of race. They are clearly distinguishable. Texas is not denying education to any race. It is offering equal educational opportu nities to white and Negro students at separate in stitutions. Hirabayashi v. U. S., 320 U. S. 81 (1943) and Koremtasu v. U. S., 323 U. S. 214 (1944), held that citizen Japanese could be made to respect curfew regulations and vacate war zones on the West Coast as a war measure. But in Ex Parte Endo, 323 U. S. 283 (1944), where a U. S. citizen of Japanese ex traction, whose loyalty was not questioned, was moved out of her home and sent to a “relocation center,” and had been awarded a “leave” to go by the civilian authorities in charge— and was yet ar bitrarily detained, it was held that such citizen was entitled to habeas corpus to be released. The case on its facts is obviously distinguishable. The Property Ownership Cases The next group of cases held that the equal pro tection clause protects the rights to own and occupy land. It protects the person in that property right. Thus in Oyama v. California, 332 U. S. 633 (1948), it was held that land owned in the name of ■38— a U. S. citizen of Japanese extraction could not be escheated simply because it had been purchased for him by an alien Japanese in an alleged violation of the Alien Land Law of California. The citizen of Japenese ancestry was saddled with more onerous burdens in his property ownership than other citizens. Similarly in Shelley v. Kraemer, 334 U. S’. 1 (1948), the Court held in voiding state enforcement of restrctive covenants on realty that the equal pro tection clause protected the Negro against state ac tion in his right to own and occupy property. The Court stated: “We have noted that freedom from discrim ination by the States in the enjoyment of prop erty rights was among the basic objectives . . . of the Fourteenth Amendment” 334 U. S. at 20. Referring to the Oyama case, the Court said: “Only recently this Court had occasion to de clare that a state law which denied equal enjoy ment of property rights . . . was not a legiti mate exercise of the state’s police power. . . .” The Court continued: “. . . it would appear beyond question that the power of the State to create and enforce property' interests must be exercised within the boundaries defined by the Fourteenth Amend ment.” 334 U. S. at 22. As will be discussed in Point II of this brief, the right to “purchase, lease, sell, hold, and convey real — 39— and personal property, and to full and equal benefit of all laws and proceedings for the securing . . . of property” was enacted into the Civil Rights Act of 1866. 14 Stat. 27. The first section of the Four teenth Amendment was generally understood to have embodied the 1866 Act. As stated by Flack, “. . . there seems to be little . . . difference between the interpretation put upon the first section by the ma jority and by the minorty, for nearly all said that it was but an incorporation of the Civil Rights Bill.” The A doption o f the F ou rteen th Am endm ent, p. 81. On the other hand, the 1866 Act was amended to delete the general language which might have been construed to require mixed schools. Mr. Sumner’s Civil Rights Bill was amended and passed by the Se nate in 1872 after deleting reference to schools. The references to schools were deleted from the Civil Rights Act of 1875 to leave the matter to the States. The Congress, before, during, and after the adoption of the amendment operated separate schools in the District. All of this is discussed at length in Point II hereof. Furthermore, this Court has heretofore dis tinguished between p rop erty rights and privileges, and between rights of “citizens of the United States” and privileges of “citizens of a State.” Under the foregoing, the right of acquiring and holding realty is a p roperty righ t of a citizen o f the United States. But the receiving of an education, at the expense of the State, especially at the collegiate and profes sional level, is not a property right. H am ilton v. R egents o f the U niversity o f California, 293 U. S. 245 (1934); W augh v. M ississippi, 237 U. S. 589 — 40— (1915). It is referred to in the Hamilton case as a privilege given by the State.27 The distinction between the denial of the right to own and occupy property and the furnishing of equal facilities was drawn by this Court in Buchanan v. Warley, 245 U. S. 60 (1917). There a white citizen contracted to sell residential property in a white area to a Negro. A city ordinance prohibited the sale. The Negro attempted to avoid the sale claim ing the validity of the ordinance. This Court held the ordinance void under the Fourteenth Amend ment. The Negro insisted that the Plessy case was controlling. The Court, distinguishing between right to own property and the furnishing of equal facil ities, said: “It will be observed that in that (Plessy) case, there was no attempt to deprive persons of color of transportation . . . and the express re quirements were for equal though separate fa cilities. . . . In Plessy v. Ferguson, classifi cation of accomodation was permitted upon the basis of equality for both races.” 245 U. S. at 79. The Interstate Commerce Cases Morgan v. Virginia, 328 U. S. 373 (1946) held that a state statute requiring separation in inter- 27 The 14th Amendment provides: “No state shall make or enforce any law which shall abridge the 'privileges or im munities of citizens of the United States . . The Court held that attending a state college is not a privilege of a citizen of the United States but is a privilege extended by one of the States of the United States, thus again distin guishing the two types of citizenship. Slaughter House Cases, 16 Wall. 36. _ 4 1 . state carriers was invalid as a burden on interstate commerce. The shifting of passengers upon cross ing state lines at night or in the daytime was an un due burden. The case is rooted in the D eC uir case. In the D eC uir case, the statute required comming ling of the races. The M organ case required sepa ration of the races. Both were struck down. This Court based its decision in the M organ case squarely on the interstate commerce clause. The Fourteenth Amendment and the cases construing it were not mentioned. Regarding the interstate commerce clause, Mr. Justice Burton dissented, saying in part: “It is a fundamental concept of our Consti tution that where conditions are diverse the so lution of problems arising out of them may well come through the application of diversified treatment matching the diversified needs as de termined by our local governments. Uniformity of treatment is appropriate where a substantial uniformity of conditions exists.” Bob-Lo E xcu rsion Co. v. M ichigan, 333 U. S. 28 (1948), was also decided wholly under the interstate commerce clause. A steamship operated to and from an island just off shore but across the Canadian line. It refused passage to a Negro. It was held that the application of the Michigan Civil Rights Act to the facts was not a burden on interstate commerce, it being a completely localized transaction. The case is further distinguishable because, as pointed out by Mr. Justice Rutledge in the majority opinion and by Mr. Justice Douglas concurring, the ■ 4 2 - carrier did not offer equal facilities; it completely excluded the Negro from passage on the ship. Mr. Justice Douglas continued, citing the Gaines case: “Nothing short of at least ‘equality of legal right’ (Missouri ex rel. Gaines v. Canada . . .) in obtaining transportation can satisfy the Equal Protection Clause.” 333 U. S. at 42. On the other hand, where no interstate commerce is involved, state statutes requiring separation with equal facilities have been held not to violate the equal protection clause. Plessy v. Ferguson, supra; Ches apeake & 0. Ry. v. Kentucky, supra. Where no state action is involved, similar regulations of private car riers have been upheld as reasonable. Chiles v. Chesapeake & 0. Ry., supra. Argument The foregoing cases argue themselves. They dem onstrate that this Court has uniformly held that the states may furnish education to their white and Negro citizens at separate institutions so long as sub stantially equal facilities are offered both groups. Petitioner has cited no case to the contrary. As this Court said in the Gong Lum case: “The right and power of the State to regulate the method of providing for the education of its youth at public expense is clear. . . . The decision (to separate the races) is within the * discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment.” 275 U. S. at 85 and 87. - 4 3 - In the Gaines case Mr. Justice Hughes speaking for the Court, recognized the long-established rule. He wrote: “The state has sought to fulfill that ob ligation by furnishing equal facilities in separate schools, a method the validity of which has been sus tained by our decisions.” The Sipuel case, citing the Gaines case with ap proval took cognizance of the long established princi ples announced therein. And the opinion in Fisher v. Hurst, that the subsequent judgments of the Okla- home courts were not inconsistent with its Sipuel mandate, is in harmony with the holdings of the Gong Lum, Plessy, Gaines and other cases herein set out. It is therefore respectfully submitted that Ar ticle VII, Section 7 of the Texas Constitution and related statutes providing that the State shall fur nish equal education to its Negro and white students in separate schools are Constitutional. Second Point The background and contemporaneous construc tion of the Fourteenth Amendment sustain this Court’s interpretation that under the Amendment the States may furnish equal education to their Ne gro and white students in separate schools. Argument and Authorities Under Point I the State has called attention to nine decisions of this Court, thirteen Federal Court deci- 4 4 sions and fiifty-eight State Court decisions which interpret the equal protection clause of the Four teenth Amendment as not prohibiting States from furnishing equal educational advantages to Negro and white students in separate schools. Petitioner asks that this Court’s decisions be re examined and overruled. He charges that the dis tinguished members of this Court for the past sixty years have misinterpreted the Fourteenth Amend ment. He says that a restudy of its purposes, back ground and contemporaneous construction is jus tified in order to place a new and different interpre tation thereon in so far as it applies to this case. We believe that the question has been well settled by this Court, and its decisions so long relied upon by the States and the Congress in the establishment and maintenance of public educational facilities, that re-examination of the cases is unjustified. It should be enough that such distinguished jurists as Hughes and Holmes concluded “That it had been decided by this court, so that the question could no longer be considered an open one, that it was not an infraction of the 14th Amendment for a State to require sepa rate, but equal, accommodations for the two races.”28 or that such Justices as Taft, Holmes, Brandeis, and Stone concluded “that it is the same question which has been many times decided to be within the constitu tional power of the state legislature to settle 28 McCabe v. A . T. & S. F . R y Co., 235 U.S. 151 (1914). — 45— without intervention of the federal courts under the Federal Constitution.”29 or that Justices Hughes, Brandeis, Stone, Black and Reed found the separate equal educational system to be one “the validity of which has been sustained by our decisions.”30 However, Respondents have nothing to fear if this Court desires to re-examine its previous interpreta tions of the Fourteenth Amendment in the light of the background, purpose, and common understand ing at the time of its adoption. In fact, such an examination will but serve to answer conclusively Petitioner’s attempt to impeach this Court’s former decisions as unwarranted and unsound. It will reveal that this Court’s predeces sors were better grounded in the purpose, under standing, and intent of the Fourteenth Amendment than Petitioner would lead the unsuspecting to be lieve. In his attempt to show a contrary understanding of the Amendment as applied to this case, Petitioner cites only the words of four Senators who argued in 1874-1875 in favor of a law prohibiting separate schools but lost in their attempt.31 In none of these quotations is there an assertion that the Fourteenth Amendment itself prohibits separate schools. Even if there were, it would be most unusual to give effect to an interpretation of a small and unsuccessful 28 28 Gong Lum v. Rice, 275 U.S. 78 (1927). 30 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). 31 Petitioner’s brief, 56-60. - 4 6 - minority of the contemporaneous proposers of the Amendment in disregard of the majority interpre tation which was actually adopted by Congress, the States, and the Courts. As stated by Mr. Justice Frankfurter: “After all, an amendment to the Constitution should be read in a ‘sense most obvious to the common understanding at the time of its adop tion.’ . . . For it was for public adoption that it was proposed. . . . “Any evidence of design or purpose not con temporaneously known could hardly have influ enced those who ratified the amendment.”32 A. Congressional Action Before, During, and After the Adoption of the Fourteenth Amendment Clearly Indicates That the Amendment Was Not Intended to Remove the Power of the States to Provide Separate Equal Facilities for White and Negro Students. The Acts of Congress and pertinent portions of the debates on the development and contemporaneous construction of the Fourteenth Amendment are set out at length in the Appendix hereto beginning on p. 128. As will be briefly summarized here, a study of this material shows that it was at no time considered by the Congress or by the States that separate equal schools were prohibited by the Fourteenth Amend- 32 Adamson v. California, 332 U.S. 46, 63 and 64. — 47— ment. Congress itself maintained separate schools before, during, and after the adoption of the amend ment. It established separate schools for Negroes in 1862 in the District of Columbia and continued them. After the Civil War, it enacted the Civil Rights Bill of 1866 which gave certain specific rights to the Negro. That bill was specifically amended so as not to apply, in ter alia, to separate schools. Because of the doubts concerning its constitutionality, and in order to perpetuate the rights which were granted, the Fourteenth Amendment was adopted. The 1866 Act is therefore important for its bearing on the meaning of the Amendment. During the debates on the Amendment, Congress conveyed land for its separate Negro schools in the District and enacted other laws for such schools. Immediately after the adoption of the Fourteenth Amendment, Congress passed other laws regulating the separate school system of the District. Subse quent attempts by Senator Sumner et al. to abolish separate schools in the District were defeated. The Civil Rights Act of 1875 was specifically amended to exclude public schools from its provisions in order to leave the matter to the States. The Congressional interpretation that separate schools may be constitu tionally maintained continues today. It is true that there are speeches by some who ardently advocated the complete intermingling of the races; for example, as set out in Petitioner’s brief, those of Senators Sumner, Frelinghuysen, and Bout- well of Massachusetts and some of the Reconstruc tion Republicans from the South, such as Senator Pease of Mississippi.33 But as stated by Mr. Justice Frankfurter, “Remarks of a particular proponent of the amendment, no matter how influential, are not to be deemed part of the amendment.”34 What is most important is what the Congress and the States did, and what Congress (or a majority of it) intended as a body. This background and contemporaneous construc tion with reference to the public schools is, we think, of extreme importance to an understanding of the real and intended meaning of the Amendment and those who enacted it. It is set out in the Appendix only in the interest of brevity. It will be here sum marized. In 1862, Congress enacted laws to provide schools for Negroes in the District of Columbia35 under the direction of a “Board of Trustees for Colored Schools.” The Statutes were amended in 1864 to require that a proportionate part of all school tax money should go to the Negro schools.36 In January, 1866, Senator Trumbull of Ohio in troduced the First Supplemental Freedmen’s Bureau Bill and the bill which became the Civil Rights Act of 1866.37 The Freedmen’s Bill, which never became 33 This gentleman removed from the State to Dakota shortly after the Reconstruction Period, where he was em ployed by the U. S. Land Office. Biographical Directory of the American Congress 1774-1927, p. 1395. He is re ferred to in Garner’s Reconstruction in Mississippi as a “carpetbagger.” p. 243. 34 Adamson v. California, 332 U.S. 46, 64. 35 Appendix p. 128. 12 Stat. 394, 407, and 537 (1862). This whole section of the brief is fully footnoted in the Ap- - 4 8 - ■ 4 9 - law because of President Johnson’s veto, dealt prin cipally with the government of the South. It author ized the Bureau to procure school buildings, but noth ing in the debates indicates any desire to force mixed schools. It had a section on civil rights for Negroes, not including any reference to schools.36 37 38 1. The Civil Rights Act of 1866 The Civil Rights Act of 1866 is particularly im portant because of the very large number of the members of Congress who intended and believed that its provisions became embodied in the first section of the Fourteenth Amendment.39 The bill in section one defined who were citizens of the United States. As originally introduced, it followed with very broad language as to civil rights: “. . . there shall be no discrimination in the Civil Rights . . . among the inhabitants of any State . . . on account of race . . It continued to provide that “. . . the inhabitants of every race . . . shall have the same rights to make and enforce (Ftn. 35 Cont’d) pendix and in the interest of brevity, ref erences will generally be to the Appendix only. 3613 Stat. 187 (1864). 37 Appendix p. 130. In their brief the Committee of Law Teachers state that the Civil Rights Act was introduced by Senator Wilson. The bill (S. No. 9) to which they refer was introduced and debated for several days but was super seded by Senator Turnbull’s Bill (S. No. 61) which became the Civil Rights Act of 1866. 38 Appendix p. 131. _39 Appendix p. 133; 39th Cong., 1st Sess., p. 319. Congres sional references in this section are to the Congressional Globe through 1873 and to the Congressional Record there after. - 5 0 - contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the se curity of person and property, and shall be sub ject to like punishments, pains, and penalties, and none others, any law, statutes, ordinances, regulations, or customs to the contrary notwith standing.”40 The House floor leader for the bill, Rep. Wilson of Iowa, explained the broad language, first set out above, of his bill. He said: “By no means can they be construed . . . nor do they mean that . . . their children shall at tend the same schools. These are not civil rights or immunities.”41 But the House was not satisfied with the general language of the bill. Mr. Bingham, in addition to thinking the bill unconstitutional, thought the lan guage too broad.42 Mr. Wilson replied to Mr. Bing ham, who was an attorney: “He knows, as every man knows, that this bill refers to rights which belong to men as citizens of the United States and none other; and when he talks of setting aside school laws . . . by the bill now under consideration, he steps be yond what he must know to be the rule of con struction which must apply here.”43 40 39th Cong., 1st Sess., pp. 474, 1117. 41 Appendix p. 134. 42 Appendix p. 135; 39th Cong., 1st Sess., p. 1117. He moved to strike the general words. Appendix p. 135; 39th Cong., 1st Sess., p. 1271. 43 Appendix p. 136; 39th Cong., 1st Sess., p. 1291. — 51 Nevertheless, Mr. Wilson had the bill recommitted, and it was amended to take out the broad language quoted in the first paragraph above. In that form the bill was enacted and passed over the President’s veto.44 45 The rights sought to be protected were those specifically quoted in the second paragraph above.4D 2. The Resolution Proposing the Fourteenth Amendment Because of the doubts as to its constitutionality and in order to place the Act of 1866 beyond Con gressional repeal, the Republicans desired to put it in the Constitution. The Fourteenth Amendment was therefore proposed. Most of the debates on the resolution are not available because it was discussed and formulated in the caucuses of the Republican party and in the deliberations of the “Joint (Con gressional) Committee of Fifteen on Reconstruc tion.”46 We do know that broader language as to civil rights was proposed but not adopted. For example: “All provisions in the Constitution or laws of any State, whereby any distinction is made in political or civil rights or privileges on account of race, creed or color, shall be inoperative and void.”47 44 Appendix p. 138. 45 Mr. Justice Black in the appendix to his dissent in the Adamson case referred to that Act as one of “certain de fined civil rights.” 332 U.S. 46 at 99. 46 Appendix pp. 139 to 151. 47 Appendix p. 140; Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction (1914), p. 215. — 52— A reading of the Journal of the Committee of Fif teen fails to disclose any reference whatever to the regulation of public schools. There is no inference that the resolution proposed was intended to force mixed schools. The Journal’s reports dealt largely with other reconstruction problems. Neither the majority nor minority report of the Committee to Congress contained any reference to schools or any inference that the resolution proposed to cover more than the rights embodied in the Act of 1866. A great many members of both houses made speeches indicating that they intended to embody the guarantee of the 1866 Act into the Constitution. These included Representatives Thaddeus Stevens, Broomall, Thayer, and Boyer of Pennsylvania, Ray mond of New York, Eldridge of Wisconsin, and Eliot of Massachusetts.48 Mr. Rogers of New Jersey said that the amendment was no more than “an attempt to embody in the Constitution . . . that outrageous and miserable Civil Rights Bill.”49 Debate in the Senate indicated that the under standing of some Senators was that section one in corporated the Civil Rights Bill into the Constitu tion ; and those who gave it a broader interpretation thought it gave Congress the power to prohibit dis criminatory legislation.50 No Senator indicated that its effect would be to abolish separate schools. 3. Acts Relating to Separate Schools in the District All the time Congress debated the resolution on the Fourteenth Amendment, it was operating separate 4 * * 4S See Appendix p. 146 for these references. 49 39th Cong., 1st Sess., p. 2537. 50 Appendix pp. 147 to 149. - 5 3 - schools for white and Negro children in the District.51 Congress debated the Fourteenth Amendment be tween February and June, 1866. During that time, on May 21, 1866, Congress enacted a bill donating real estate in the District for the separate Negro schools.52 Between April and July, 1866, Congress considered and enacted a bill changing the tax sup port for the separate Negro schools of the District. In 1867 Senator Sumner proposed to require that the Constitutions of the Southern States must provide for “a system of public education open to all, with out distinction of race or color,” before the State could seat its representatives in the Congress. His proposition was defeated.53 4. The Period Immediately Following the Adoption of the Fourteenth Amendment in 1868 The Fourteenth Amendment was declared adopted July 28, 1868.54 A bill which had passed the Senate in July, 1868, was passed by the House on February 5, 1869, changing only the administration of the separate schools in the District. The bill transferred the duties of the Negro trustees of the Negro schools to the (white) trustees of the public schools. The bill, of course, left the schools separate. The Ne groes were greatly disturbed, not because the schools were separate, but because they wanted Negro trus- 51 Appendix p. 151. 5218 Stat. 343 (1866). 53 Appendix p. 152; 40th Cong., 1st Sess., p. 170. 54 Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights ? The Original Understanding, 2 Stanford Law Rev. 134 (1949). - 5 4 - tees for their separate schools. President Johnson vetoed the bill for that reason.55 Thus, almost immediately after the adoption of the Fourteenth Amendment, the Congress re-exam ined its laws relating to separate schools and merely proposed to change the administration of them by consolidating the duties of the school boards. This is convincing proof that the Congress which proposed the Amendment did not construe it to require the abolition of separate schools. In May, 1870, the Civil Rights Bill of 1866 was re-enacted in Section 18 of “The Enforcement Act of 1870.” It is significant that the 1866 Act was not changed; no new sections or provisions were added. In 1871 a sustained attempt was made in Con gress to require abolition of separate schools in the District. The bill was defeated and Congress ad hered to separate schools. The debates on this indi cate that the States and their representatives in the Congress clearly believed that the power to provide separate or mixed schools remained in the States. Senator Patterson of New Jersey said that the law of the Northern States was that the boards of edu cation were free “to determine for themselves whether they would mix the whites and blacks or have separate schools.”56 He thought mixed schools would destroy the public school system and that it would cause a loss of public support for their schools because the whites would withdraw. Senator Thur man of Ohio said the common schools were having difficulty enough without saddling the system with 55 Appendix p. 153; 40th Cong., 3rd Sess., p. 1164. 56 Appendix p. 154; 441st Cong., 3rd Sess., pp. 1053-4. — 55— a compulsory mixing of the races. He thought the Government should not force sociological ideas on the people; that communities should be left to choose for themselves separate or mixed schools. 5. Mr. Sumner’s Recognition in 1871 That Mixed Schools Were Not Required In October, 1871, Mr. Sumner recognized and said that mixed public schools were not then required and that the Civil Rights Act needed amending in that regard. To a convention of Negroes he wrote, “The right to vote will have new security when your equal rights in . . . common schools is at last established. . . . This d efect has been apparent from the beginning; and, for a long time I have striven to remove it.”57 6. The Senate’s Passage of Sumner’s Civil Rights Bill in 1872 After Deleting References to Schools and Churches Another attempt to enact a broad civil rights bill, including a provision for mixed schools, was made by Mr. Sumner in 1871-1872. An amnesty bill to remove disabilities imposed on Southerners by the third section of the Fourteenth Amendment was pro posed. It needed a two-thirds majority to pass. In the Senate, Mr. Sumner moved to amend by adding his broad civil rights bill to the amnesty bill. The series of maneuvers and debates on this situation are set out in the appendix, pages 157 to 164. Sumner was successful in two preliminary skirmishes in 57 Appendix p. 157, note 94. - 5 6 - getting his bill added as an amendment to the am nesty bill in the Senate. But the amnesty bill, after it was added, failed to pass the Senate. Finally the Sumner bill was considered separately; and after the references to mixed schools and churches was deleted, it was passed by the Senate.58 His bill, even as amended, did not pass the House. During the debates, Senator Frelinghuysen, whom Petitioner quotes at length on page 60, proposed to amend the Sumner bill to exempt certain separate schools with a provision that: “ . . . churches, schools, cemeteries . . . established exclusively for either the white or colored race, should not be taken from the con trol of those establishing them, hut should re main devoted to their vise.” 59 And Mr. Sumner accepted the amendment.60 If separate schools were unconstitutional, those previ ously established could not be excepted. But the Con gress knew separate public schools had not been in validated by the Fourteenth Amendment. It is also noteworthy that during the debate, Sen ator Trumbull of Illinois, who had introduced into the 39th Congress (which proposed the Fourteenth Amendment) the Civil Rights Act of 1866 and the Freedmen’s Bureau bill, said, “The right to go to school is not a civil right and never was . . . it is a privilege.”61 08 Appendix p. 163. 59 Appendix p. 159; 42nd Cong., 2nd Sess., pp. 435, 487. 60 Appendix p. 159; 42nd Cong., 2nd Sess., p. 453. 01 Appendix p. 161; 42nd Cong., 2nd Sess., p. 3189. - 5 7 - Senator Ferry of Connecticut said that in the Northern States and in the District students were separated by race and by sex and given equal ad vantages.62 The general feeling of the majority was expressed by the Senator from Connecticut: . . in the community where I reside there is no objection to mixed schools . . . and if I were called upon to vote there, I should vote for them. It would be a useless expense to estab lish separate schools for the few colored people in that community. But I cannot judge other communities by that community. . . . I believe the Senator’s bill relating to the District of Columbia, for instance, would utterly destroy the school system in this District. . . . “Take for instance the State of Ohio where I understand the law permits the districts to have mixed or separated schools . . . and I observe a decision of the Supreme Court of Ohio reported in yesterday’s newspaper . . . It had (there) been the assertion . . . that compelling the separation of the races into different build ings was a violation of the 14th amendment, notwithstanding that both races . . . enjoyed the same or equal privileges . . . but that Court . . . of judges whose political opinions are like those of the majority of this body . . . ‘sus tained the constitutionality . . . of the common school laws . . . and held that the organiza tion of separate schools for colored children is not in conflict with the provisions of the four teenth amendment.’ I believe that that decision is good law.” _ Again in 1872 Mr. Sumner attempted to pass a bill to require mixed schools in the District. Mr. 62 Appendix p. 161; 42nd Cong., 2nd Sess., p. 3190. — 58— Stockton of New Jersey said that what Mr. Sumner wanted was not equal rights but the forced inter mingling of the races.63 Senator Ferry of Connecti cut thought the bill tyrannical and that a vote should be taken to see if the people of the District wanted separate or mixed schools.64 Mr. Edmunds of Ver mont put the matter squarely up to the Senate: “It is a matter of great importance that we should determine fairly and squarely whether in the District of Columbia, where we have the power, that we shall exercise it . . .” The Congress did determine the matter, just as it had in the past: that separate schools were not re quired. The bill was defeated and Congress con tinued to maintain separate schools. 7. Action and Debates on the Civil Rights Act of 1875 Debates on the two bills (S. R. 1 and H. R. 796) extended from 1873 to 1875. During this period, Congress enacted further legislation regulating the separate schools for white and Negro children in the District. Its Acts provided among other things that: “Any white resident shall be privileged to place his or her child . . . at any one of the schools provided for . . . white children . . . and any colored resident shall have the same rights with respect to colored schools.” The Mil dually adopted as the Civil Rights Act 19$ Hv & Mix R ~R. 1. p^ed '-1 Appendix •>'. tie . i£nd Caisg . 2nd. Jess.. -_\ £540. ' A?sViKr.\ ?. ' V tend Cvttg . 2nd Jess.. 3124. 3125. ■59— the Senate but never passed the House. It was the House bill which the Senate ultimately adopted. It is true that certain amendments were defeated in the Senate during its consideration of S. R. 1 which never became law. But the assertion on page 58 of Petitioner’s brief that “the Senate of the 42nd Congress concluded that ‘separate but equal’ schools if established . . . were a violation of the Four teenth Amendment” is incorrect. He cites no au thority for the statement. What he probably refers to is a vote in the 43rd Congress which defeated a proposed amendment in the Senate to Mr. Sumner’s bill (S. R. 1) to specifically except separate schools.65 It will be remembered that the Senate earlier (1872) had specifically amended Sumner’s Civil Rights bill by deleting reference to schools and churches and had passed it in that form.66 On this occasion Mr. Sumner was successful in defeating the amendment. But the Senate later adopted H. R. 796 from which the reference to schools was omitted to leave the matter to the States.67 The opinions of some of the other Senators are en lightening to show the view which ultimately pre vailed in the Senate. Senator Stockton of New Jer sey said the regulation of the schools was a matter of State concern. The New Jersey Legislature, he said, would not pass a compulsory mixed school law: “They know their constituents do not desire it. They know it is not right.” The Negroes, he said, are en titled to “equal” rights; but equal rights do not mean “the same” facilities. 65 43rd Cong., 1st Sess., p. 4167. 06 See p. 55, supra. 67 43rd Cong., 2nd Sess., pp. 997, 1010, 1870. - 6 0 - Senator Alcorn, a Republican of Mississippi, said that the Negroes were in control of his State; and so “self protection, if I had no higher motive would move me to support . . . this bill.” But as to mixed schools he said: “You say that you do not want the schools mixed. Well, I am not in favor of mixing them; and I consider that this bill does not mix them. . . . How is it in my State? There . . . the colored people control; they make the laws; they levy the taxes; they appoint the school board. The whole machinery is in their hands; yet there is not a mixed school in the State . . . and we have civil rights there. Why is it? Simply be cause the colored people do not desire it; be cause they believe the interests of both races will be promoted by keeping the schools sep arate.” And Senator Saulsbury of Delaware, who had been in the 39th Congress, said that the Fourteenth Amendment did not remove the States’ police power to have separate schools. Other speeches of this nature are set out in the Appendix. 8. Action on H. R. 796 Which Became the Civil Rights Act of 1875 It was the House Bill, from which the reference to schools was intentionally deleted to leave the matters to the States, which was finally passed by both Houses and became the Civil Rights Act of 1875. The de velopment of the House Bill is most informative. In troduced by General Butler in 1873, it contained broad language, including language which might — 61 have been construed to require mixed schools.68 The opposition to the mixed school provision was so strong that Butler himself moved to recommit the bill to committee. He said: “But there are reasons why I think this ques tion of mixed schools should be carefully con sidered. The Negroes . . . have never, until the last few years, had an opportunity for edu cation. . . . Therefore in the Negro schools which I established as a military commander during the war, I found that while I had plenty of school boys with ‘shining morning faces,’ there were none ‘creeping unwillingly to school.’ . . . And I shall recommit the bill . . . be cause I want time to consider whether upon the whole it is just to the negro children to put them into mixed schools. . . . “And therefore I am quite content to consider this question in the light of what on the whole is best for the white and colored child before this matter is again before the House.”69 Mr. Butler, who had been in the 39th Congress which proposed the Fourteenth Amendment, did not construe that amendment to require mixed schools. Otherwise he would not have been willing to consider the expediency of the separate school amendment. The bill was recommitted and came out of commit tee specifically amended to allow separate schools. That portion of the bill, as it was debated in the House in February, 1875, contained the original words which were construed by some as prohibiting separate schools. It also contained the Judiciary Committee amendment: 68 Appendix p. 167; 43rd Cong., 1st Sess., p. 378. 69 Appendix p. 172; 43rd Cong., 1st Sess., pp. 455-457. ■62— “Provided, That if any State or the proper authorities in any State, having the control of common schools or other public institutions of learning aforesaid, shall establish and maintain separate schools and institutions, giving equal educational advantages in all respects for dif ferent classes of persons entitled to attend such schools and institutions, such schools and insti tutions shall be a sufficient compliance with the provisions of this section so far as they relate to schools and institutions of learning.” Three principal amendments were offered from the floor. Mr. Cessna of Pennsylvania proposed to substitute the words of the (Sumner) Senate Bill.70 Mr. W h ite of Alabama proposed to allow separation of the races at inns, theaters, schools, and public con veyances.71 Mr. K ellogg of Connecticut moved to strike the words of the original bill as to schools and also the proviso added by the House Judiciary Com mittee ; i. e., to delete all reference to schools. Mr. Kellogg explained his amendment to the House before the vote: “The amendment I have proposed is to strike out of the House bill reported by the Committee on the Judiciary all that part which relates to schools; and I do it, Mr. Speaker, in the interest of education, and especially in the interest of education of the colored children of the Southern States. . . . The proviso to the first section is one that makes a discrimination as to classes of persons attending public schools; and I do not wish to make any such provision in an act of Congress. 70 Appendix p. 181; 43rd Cong., 2nd Sess., p. 1011. 71 Appendix p. 181; 43rd Cong., 2nd Sess., p. 939. 63— “But upon this school question we should be careful that we do not inflict upon the several States of the Union an injury that we ought to avoid. A school system in most of the Southern States has been established since the war of the rebellion, by which the colored children of the South have the advantages of an education that they never could have before that time. I be lieve, from all the information I can obtain, that you will destroy the schools in many of the Southern States if you insist upon this provi sion of the bill. You will destroy the work of the past ten years and leave them to the mercy of the unfriendly legislation of the States where the party opposed to this bill is in power. And besides, this matter of schools is one of the sub jects that must be recognized amd controlled by State legislation. The States establish schools, raise taxes for that purpose, and they are also aided by private benefactions; and they have a right to expend the money, so raised, in their own way. . . .”72 The Kellogg amendment was adopted and the bill passed the House.73 The Senate passed the House bill as it had been amended,74 and it became law March 1, 1875.75 9. The Present Acts of Congress Providing for and Recognizing Separate Schools The interpretation by the Congress that the Con stitution authorizes the maintenance of separate 72 Appendix p. 184; 43rd Cong., 2nd Sess., p. 997. 73 Appendix p. 185; 43rd Cong., 2nd Sess., pp. 1010, 1011. 75 rd <-'ong'-> 2n(l Sess., p. 1870. 2013. This Court declared section one of this ohl invalid. Civil Rights Cases, 109 U.S. 3 (1883). - 6 4 - equal schools has continued to the present. It main tains separate schools in the District of Columbia.76 It provides appropriations for land-grant colleges maintained on a separate basis, the Act specifically recognizing separate colleges for white and Negro students.77 And it provides appropriations under the National School Lunch Act to be expended in sep arate schools for white and Negro students.78 !B. The Legislatures of the States Contemporane ously Construed the Fourteenth Amendment as Leaving to Them the Power to Maintain Separate or Mixed Schools. The Fourteenth Amendment was adopted for the people by the Legislatures of the States. The inten tion and understanding of these bodies is therefore important in interpreting the meaning of the Amend ment. An examination of the contemporaneous Acts of the State Legislatures of the “loyal” States, which Acts are summarized in the appendix hereto begin ning on page 194, will demonstrate the uniformity of the legislative construction that the Fourteenth Amendment did not lift this problem out of the hands of all the State legislatures and settle it. On the con trary, the Legislatures, which were represented in Congress at the time when the Amendment was adopted, continued to exercise their own sound dis cretion as to the wisdom of maintaining separate 76 D. C. Code, Sec. 31-1110 et seq. and 31-109. 77 These acts are discussed at length, Appendix p. 187; 7 U.S.C. § 323. These colleges include Texas A. & M. (white) and Prairie View A. & M. College (Negro). 78 Appendix p. 193; 60 Stat. 233 (1946); 42 U.S.C. § 1760(c). - 6 5 - equal schools for their white and Negro students or maintaining mixed schools for the races.70 For example, Indiana, which ratified the Amend ment in 1867, enacted in 1869 a law authorizing school trustees to “organize the colored children into separate schools.” Kansas, which adopted the Amend ment in 1867, authorized the establishment of sep arate schools in 1868. The statute was continued in force and re-enacted in 1879. New York, which con tinued its separate schools until its legislative act of 1900, enacted legislation as to separate schools as late as 1894. California, adopting the Amendment in 1868, authorized in 1869 the establishment of sep arate schools for Negroes and Indians. Missouri wrote into its Constitution in 1875 a provision for “Separate free schools” for Negroes. Maryland appro priated money in 1870 for the support of separate schools. The Kentucky General Assembly author ized separate schools by statute in 1871 and 1872 and wrote the policy into its Constitution of 1891. New Jersey established an industrial school for Ne groes in 1895 although in 1881 (15 years after it adopted the Amendment) it enacted a statute that no child should be excluded from any public school on account of color. Massachusetts had estab lished a policy of providing mixed schools before the adoption of the Amendment. West Virginia estab lished separate schools in 1865, adopted the Four teenth Amendment in 1867, and enacted a statute in 1871 that “white and colored persons shall not be taught in the same school.” Delaware, of course, con tinues to authorize separate schools by Constitution and statute. , ' See Appendix p. 194, for references to all the acts of the States here listed. ■66— The States above named were of the “loyal” States. To the list of Legislatures must be added those of the Confederate States which likewise con strued the Fourteenth Amendment to authorize sep arate schools. Notwithstanding the fact that Negro and white students did not attend the same schools in those Southern States (a fact well known to the Congress), the representatives of these States were re-seated in the Congress after the adoption of the Fourteenth Amendment. That is understandable since Congress itself maintained separate schools in the District of Columbia. In other words, it was the understanding and meaning of the Congress which proposed the Fourteenth Amendment, and of State Legislatures which adopted the Fourteenth Amend ment, that separate equal schools were constitutional under the Amendment. C. The Contemporaneous Construction of the State and Other Federal Courts Supports This Court's Opinion as to the Meaning of the Fourteenth Amendment With Reference to Schools The uniform construction of the Supreme Courts of the States and the Federal Courts during the period immediately following the adoption of the Fourteenth Amendment (and thereafter as well) was that the Fourteenth Amendment did not remove the pow er o f the leg is la tu res to o: m ixed schools. And w h ere sera ; had been or w ere established, their mvide separate or rate equal schools ;'scohi:shment and m ain ten ance w as .. ohchi. ‘."'.ese earm trterureca- ::on e bv C ou rts v :'o se m em oe s rad me m oornxni"j — 67— to observe the proposal and adoption of the Amend ment, and who had the benefit of counsel who were able to argue first hand the meaning of the Amend ment so recently adopted, are of considerable sig nificance. One of the earliest cases after the adoption of the Amendment in 1868 was decided by the Ohio Su preme Court in 1871.80 That opinion considered at length the effect of the Amendment and concluded that the State’s statute providing separate equal schools for white and Negro students was constitu tional. In 1872 the New York court held that where the separate schools were equal, the separation did not violate the Fourteenth Amendment.81 In 1873 the Pennsylvania court upheld that State’s statute providing for separate schools against the contention that it violated the Fourteenth Amend ment.82 The California Supreme Court, in 1874, rendered a similar opinion.83 Also in 1874, the In- 80 State v„ McCann, 21 Ohio St. 198. 81 People ex rel. Dietz v. Easton, 13 Abb. (N.Y.) Pr. (N.S.) 159. The New York Court had held in 1869 that the Civil Rights Act of 1866 did not invalidate the separate schools for Negro and white students in Buffalo, N. Y. It said, “It was no part of the Civil Rights bill to regulate or provide for the enjoyment of rights or privileges of the nature of those in controversy. . . It is clear that the right or privilege of attending a school provided for white chil dren is not among those included in this section.” Dallas v. Fosdick, 40 How. Prac. 249. The highest court of New York reaffirmed this interpretation of the Fourteenth Amendment as to schools in People v„ Gallagher, 93 N. Y. 438 (1883) and in People v. Borough of Queens, 161 N. Y. 598, 56 N. E. 81 (1900). 82 Commonwealth v. Williamson, 30 Legal Int. 406. 88 Ward v. Flood, 48 Cal. 36. — 68— diana Court, considering the effect of the Amend ment on Indiana’s separate schools, said: “In our opinion, the classification of scholars, on the basis of race or color, and their education in separate schools, involve questions of domes tic policy which are within the legislative dis cretion and control, and do not amount to an exclusion of either class. . . The Indiana Court, even at that early date, went back to consider contemporaneous construction: “The action of Congress, at the same session at which the fourteenth amendment was pro posed to the States, and at a session subsequent to the date of its ratification is worthy of con sideration as evincing the concurrent and after- matured conviction of that body that there was nothing whatever in the amendment which pre vented Congress from separating the white and colored races, and placing them . . . in dif ferent schools. . . .” Si Other cases of a similar nature during that period are set out in the Appendix beginning on page 200. Argument In the light of the foregoing history and contem poraneous construction of the Fourteenth Amend ment, the opinions of this Court on the meaning of the Fourteenth Amendment as applied to the public schools are eminently correct. The Congress did not intend in the Civil Rights Acts or in the proposal of 84 84 C ory v. Carter, 48 Ind. 327. — 69— the Fourteenth Amendment to take from the States the power to decide for themselves whether it was best for the education of the children of the State that white and Negro students should be taught in the same classroom or in separate buildings with equal facilities for all. That Congress had such in tention is clearly evidenced by the fact that all dur ing that period (and even today) it maintained sep arate schools in the District of Columbia. The same construction was placed on the Four teenth Amendment by the Legislatures of the States which adopted the Amendment for the people of the United States. This is unquestionably shown by their contemporaneous legislation establishing or continuing to maintain separate or mixed schools for Negro and white students. Furthermore, the State and Federal Courts, in the period immediately following the adoption of the Amendment, agreed that the Amendment meant that the States could constitutionally maintain separate schools where equal facilities were furnished to all groups. All of the foregoing: the intended construction of Congress which proposed the Amendment, the un derstanding of the State Legislatures in adopting it, the construction of the State and Federal Courts, and the opinions of this Court set out in Section I of this brief, lead to the inescapable conclusion that it was and is the law of the land that States have the con stitutional power to separate their white and Negro students for educational purposes where they furnish equal facilities and opportunities for both races. The opinions of this Court, which have correctly decided this proposition, should be followed in this case. - 7 0 - Third Point The power of the States to classify and the reason ableness of the classification in this case have been determined by this Court. Based on those decisions, the trial Court properly refused to go behind the Texas Constitution and the Legislative Acts to de termine the reasonableness of or necessity for such classification. The trial Court therefore properly excluded evidence thereon. A. The classification has been determined by this Court to be reasonable. The trial Court therefore correctly limited the testimony to the fact question of the equality of the schools in question. B. If this Court disagrees with its previous de cisions, or deems it proper to make a new, independ ent determination of the reasonableness and neces sity for the classification made by the people of Texas in their Constitution and by the Legislature, then there is ample evidence to support such determi nation. C. If the Court goes behind its own decisions and the Constitution and Statutes of Texas on the ques tion of reasonableness, and if it decides that it has not sufficient material from the record, the briefs, and its judicial knowledge to find any reasonableness in the classification made by Texas, the Southern States, and the Congress, then, and only in that event, Respondents are entitled on a new trial to fully develop that proposition. - 7 1 - Preliminary Statement This Court in its opinions herein set out under Point I has considered and decided that the States have the power, in the furnishing of education, to separate their students, and that such a classification is not unreasonable. The desirability and expediency of maintainting separate schools for white and Negro students or mixing them in the same classroom are matters for legislative determination.85 The pedagogical argu ments of sociologists and educators, which occupy much of Petitioner’s brief, are properly to be ad dressed to those forming the policies of the State as to the manner in which it, at its own expense, will provide education. As this Court has properly held, such matters are for the States themselves to decide. When equal facilities are offered, the Federal Courts may intervene only if it can be said that, as a matter of law, the classification is so completely unreason able as to be violative of the Federal Constitution. The Federal Courts, as said by Mr. Justice Jackson, should not be induced to “accept the role of a super board of education for every school district in the nation.”86 A school district may separate its students by their height, by their names, by sex, et cetera. Such sepa ration is not the exercise of its police power, at least as that term is ordinarily understood. It is but the 85 “We must remember that on this particular point we are interpreting a constitution and not enacting a statute.” Carr v. Corning, U. S. Ct. of App., D. C., Feb. 14, 1950. 80 McCollum v. Board o f Education, 333 U.S. 203 at 237 (1948). ■72— exercising of the inherent power of the State to manage its own schools. And so long as each is given substantially the same facilities and advantages, each is given “the equal protection of the laws.” It is that inherent power to operate its schools in the manner deemed best for all the students, together with the State’s police power to preserve and main tain the public welfare, peace, safety, and happiness of the people, that is the basis for the provision in the Texas Constitution. It is respectfully submitted that this Court should follow its former decisions.87 But if it deems it proper to put aside those precedents and examine the question anew, it will find that there is today ample evidence to support the classification the people of Texas have written into their Constitution and sup plemented by Legislative Acts. With that in view, the reasonableness of and the necessity for the exer cise of the police power, ably developed in the A m icus brief of the Southern States, will be dis cussed. A. The Classification Has Been Determined by This Court to be Reasonable. The Trial Court Therefore Properly Limited the Testimony to the Fact Issue of the Equality of the Schools in Question. The decisions of this Court set out under Point I clearly demonstrate that this Court has carefully 87 As stated by Mr. Justice Reed: “This Court cannot be too cautious in upsetting practices embedded into our society by many years of experience. A state is entitled to have great leeway in its legislation when dealing with the impor tant social problems of its population.” Id.,, note 1 at 256. — 73— and repeatedly held that the States may separate their white and Negro students and provide equal education for them at separate schools. The hold ing is expressly made in some and is necessarily im plicit in others that the classification of the students is not unreasonable. In the interest of brevity, only short quotations from a few of the cases will be set out as illustrative. Mr. Justice Clifford’s concurring opinion in the DeCuir case which was cited with approval in this Court’s opinion in the Chiles case: “. . . equality of rights does not involve the necessity of educating white and colored per sons in the same school any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept in the same school; and that any classification which preserves substantially equal school advantages is not prohibited by either the S tate or F edera l C onstitution, nor would it contravene the provisions of either.” 95 U.S. at 504. Plessy v. F erguson , 163 U.S. 537 at 550: “So far, then, as a conflict with the Four teenth Amendment is concerned, the case r e duces itse lf to a question w hether the sta tute o f Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the estab lished usages, customs and traditions of the people, and with a view to the promotion of — 74 their comfort, and the preservation of the public peace and good order.” In the Chiles case, this Court said that the Plessy case not only sustained the law, “. . . but justified as reasonable the distinc tion between the races on account of which the statute was passed and enforced.” This Court then concluded anew that: “Regulations which are induced by the general sentiments of the community for whom they are made and upon whom they operate, cannot be said to be unreasonable. “The extent of the differences based upon the distinction between the white and colored races which may be observed in legislation or in the regulation of carriers has been so much dis cussed that we are relieved from further en larging upon it.” 217 U.S. 71 at 77. Similarly in Gong Lum v. R ice, the matter was squarely before this Court. Mr. Chief Justice Taft stated the problem and the Court’s answer thereto: “The question here is whether a Chinese cit izen of the United States is denied equal pro tection of the laws when he is classed among the colored races and furnished facilities for ed ucation equal to that afforded to all. . . .” “Were this a new question it would call for full argument and consideration, but we think it is the same question which has been many times decided to be within the constitutional power of the state legislature. . . .” — 75— . . The decision is within the discretion of the State in regulating its public schools and does not conflict with the Fourteenth Amend ment.” 275 U. S. at 85 and 87. The reasonableness of the classification was recog nized by Mr. Chief Justice Hughes when he wrote in the Gaines case in 1938: “The State has sought to fulfill the obliagtion by furnishing equal facilities in separate schools, a method the valid ity o f which has been sustained by our decisions.” 305 U. S. at 344. With these decisions before it and with the Sipuel case which cited with approval the Gaines case, it is submitted that the trial Court correctly refused to go behind the provision of the Texas Constitution requiring separate impartial schools for whites and Negroes, and correctly excluded testimony as to the necessity for and the reasonableness of the classifica tion.88 The question as understood by the trial Court, _88 Respondents of course object to the use by Petitioner in his brief of evidence not introduced or which was introduced and stricken, e. g., that of Dr. Thompson on pages 67-71 of Petitioner’s brief. The observations of this Petitioner’s witness (whose evidence was excluded) was reduced to writing and published in a magazine. What is substantially his excluded testimony and that of other of Petitioner’s wit nesses is then cited to the Court in another form. Thomp son, Separate But N ot Equal, The Sw eatt Case, cited in his brief, pp. 22, 30, 36, and 52. That and some 54 other of Peti tioner’s texts, surveys, reports, et cetera, were not offered in evidence. Most of the material in the Appendix to Peti tioner’s Petition for Certiorari was not even offered in evidence. To answer such “evidence,” Respondents have felt it necessary to include some material of the same char acter in their Reply. — 76— and upon which basis the case was tried, was: “Were the facilities offered Petitioner at the time of trial substantially equal . . That was the question and the trial Court correctly limited the testimony thereto. B. If the Court Disagrees With its Previous Deci sions or Deems it Proper to Make an Independ ent Determination of the Reasonableness of and Necessity for the Classification Made by the People of Texas in the Constitution and by the Legislature, Then There Is Ample Evidence to Support Such Determination. Respondents submit that the Court should follow its previous opinions which have decided that the furnishing of equal facilities at separate schools to white and Negro students does not violate the pro visions of the Fourteenth Amendment. Stated dif ferently, the Court has previously decided that this classification of students is a reasonable exercise of the powers of the State. Should the Court, however, decide to go behind its decisions and behind the Con stitution and Statutes of Texas as to the reason ableness of the action and the necessity therefor, it will find today ample evidence to support such classi fication.89 89 By setting out these matters Respondents do not with draw from their position that this question had been settled by the Court and that the trial court correctly excluded evi dence as to what happened at other places and at different times, and that such evidence should not be considered here. But Petitioner has included so much material of this sort in his brief that it was considered necessary to reply thereto. ■77- At the outset, the findings and enactments of the Congress and of the Legislatures of 17 states should be taken as some evidence that the classification is not without reason.90 The Court is of course aware of the delicacy of one of the branches of the govern ment saying to the Congress and the State Legisla tures of 17 States, who have heard much of the same arguments, that their findings and enactments are completely without reasonable justification. The Texas Legislature as late as February 28, 1950, enacted a statute providing for separation of the races in State parks.91 The Legislature found in the preamble to that statute that: “Whereas the necessity for such separation still exists in the interest of public welfare, safety, harmony, health, and recreation . . .” and the emergency clause in the bill recites that: “The fact that the policy of the State in re quiring separate park facilities for white and Negro citizens is necessary to preserve the pub lic peace and welfare, and to protect the privi- 90 The amicus argument of the Attorneys General of the Southern States ably presents the views of that section of the United States. 91 S. B. 19, 51st Leg., 1st Call. Sess. 1950, is set out irf the Appendix at page 234. The bill passed the Senate with 29 yeas and no nays, was amended and passed by the House, 88 to 20. The Senate on February 28, 1950, agreed to the House Amendments, 27 to 0. It was signed by the Governor on March 14, 1950. Showing the extent of the necessity for the separation, the bill authorizes the closing of any facil ities where separate equal accommodations cannot be fur nished, the facilities to be reopened when the equal facilities are available. - 7 8 - leges of both white and Negro citizens in the use of the State parks . . Regardless of how one would vote in a Legislative hall on the question of mixed or separate schools, it is submitted that those Legislators, educators, and other persons who hold that the furnishing of equal facilities at separate schools is best for both races and is necessary to preserve the public peace and welfare, are not completely without reason. For in order for Petitioner to prevail, it must be decided as a matter of law, that those who feel that mixed schools for the races in the South should not be required have no reasonable support whatsoever for their convictions. In addition to the consideration by the Legisla tures, many fair-minded citizens, both Negro and white, North and South, have considered the prob lem, its reasonableness, and its solution. Some of their findings and opinions, which Respondents say demonstrate the reasonableness of the classification, are here briefly set out. L The U. S. Department of Education’s National Survey of Higher Education of Negroes This series of United States government publica tions92 was prepared by Dr. Ambrose Caliver, (R- 268) a Negro who was Senior Specialist on Negro Education in the U. S .Office of Education from 1930 to 1945, a specialist in higher education of 92 Respondents’ Original Exhibit 15, particularly pp. U- 91, Misc. No. 6, Vol. II. - 7 9 - Negroes since 1945, and a member of the N.A.A.C. P.93 That survey concluded that: “Equality of educational opportunity for white persons and for Negroes at the level of higher education can be achieved, in theory, by either of two methods: (1) By admitting both white persons and Negroes to the same institu tion, or (2) by establishing parallel and equal facilities for members of the two races. In sev eral of the States which maintain a dual educa tional system, however, neither of these methods is actually feasible. In some of the States the mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions. . . .” Misc. No. 6, Vol. II, p. 17. Dr. Caliver then showed what a large proportion of the Northern Negroes voluntarily came South to attend separate Negro colleges: “The erroneous assumption that northern uni versities are carrying an unduly large responsi bility for the higher education of Negroes may be accounted for, in part at least, by two com mon misconceptions. In the first place, the size of the northern Negro population is generally underestimated and, in the second place, it is not always known that large numbers of north ern Negroes go South to attend Negro col leges.” Id. at 82. “Whereas very few southern Negroes were at tending these eight northern universities in 1939-40, in the year preceding nearly 4,000 93 Who’s Who in Am erica 1950-51, page 409. -80- northern Negroes attended [separate] Negro colleges. Almost 3,000 of this number attended colleges in Southern States. The majority of these Negro students were residents of eight Northern States which rank high in economic resources. Thus instead of the Northern States carrying an undue burden in the higher educa tion of Negroes, it appears that the Southern States, which have the least wealth, are provid ing educational facilities for Negro residents from economically more favored regions.” (Id, at 90.) He continued, giving reasons why the Negroes themselves preferred to go to a separate college: “It is not possible, of course, to know how much of this southward migration is due to conditions within the northern institutions which make the Negro student feel that he does not secure a well-rounded college life in a mixed university, and how much is due to the positive advantages he feels are offered him in the Negro college. “Some of the graduate students replying to the questionnaires were northern residents who had gone South to take their undergraduate work in Negro colleges. . . . Some students said fra n k ly that the N egro college offered a m ore norm al social l i f e ” (Id. at 89.) _ . . the lack of opportunity for full par ticipation in campus activities in the North adds attraction to the opportunities for leadership in such activities on a southern Negro college cam pus.” “A common reason given for the choice of the Negro college was the desire for a more normal - 8 1 - social life. The Negroes in northern institu tions seldom live on the campus and seldom par ticipate in the social activities of the Univer sity. Outside of college the Negro’s social life is largely limited to association with his own people. Although southern Negro colleges oper ate in an area in which the total life of Negroes is restricted, the college campus itself is a small world in which the Negro student is relatively secure and in which he can achieve status among his own people.” (Id. at 90.) To the same effect is an article in the A tlantic Monthly, “The Negro and His Schooling,” by Vir- ginius Dabney:94 “Would a handful of Negro students regis tered at a Southern university for whites be apt to find themselves in congenial surroundings? It seems highly doubtful. They probably would suffer no violence, but they would almost cer tainly be happier at an all-Negro institution providing work of equal excellence. Evidence of this is seen in the fact that 42 per cent of the student body at Fisk University, Nashville, comes from the North, and evidently prefers the homogeneity of the Fisk all-Negro student body to the mixed student bodies available to them in their home states. Moreover, about one fourth of these Northern Negroes remain in the South after graduation.” 94 Editor, Richmond Times-Dispatch; Author, “Liberalism in the South,” B.A. and M.A., University of Virginia; Litt.D., University of Richmond; LL.D., William and Mary, (Who’s Who in Am erica, 1948-49, page 575.) The article appeared in the April 1942 issue. 2. Recommendations! of the President’s Commission on Higher Education A minority of highly respected men whose views are certainly entitled to consideration on the ques tion of whether or not the classification in question is wholly unreasonable filed a minority report to the President. These men were: Dr. Arthur H. Comp ton, Chancellor, Washington University, St. Louis; Douglas S. Freeman, Editor, Richmond Times-Dis- patch; Lewis Jones, President, University of Arkan sas; and Goodrich C. White, President, Emory Uni versity. Their report read in part: “The undersigned wish to record their dissent from the Commission’s pronouncements on seg regation especially as related to education in the South. . . . We believe that efforts toward these ends must, in the South, be made within the es tablished patterns of social relationships, which require separate educational institutions for whites and Negroes. We believe that pronounce ments such as those of the Commission on the question of segregation jeopardize these efforts, impede progress, and threaten tragedy to the people of the South, both white and Negro. . . • But a doctrinaire position which ignores the facts of history and the realities of the present is not one that will contribute constructively to the solution of difficult problems of human rela tionships.”95 95 H igher Education fo r A m erican D em ocracy (1947), Vol. II, p. 29. •83— 3. The President’s Committee on Civil Rights This group of nationally known responsible citi zens, all of whom the President must have considered to be reasonable persons, was divided on the ques tion of education. The majority of the Committee recommended that the S tate legislatures enact “fair educational practice laws,” with boards and bureaus for enforcement purposes.90 As to separation of the races, however, the feeling of some of these highly respected persons is recorded as follows: “A minority of the committee favors the eli mination of segregation as an ultimate goal but . . . opposes the imposition of a federal sanc tion. It believes that federal aid to states for education . . . should be granted provided that the states do not discriminate in the distribu tion of the funds. It dissents, however, from the majority’s recommendation that the aboli tion of segregation be made a requirement, until the people of the states involved have themselves abolished the provisions in their state constitu tions and laws which now require segregation. Some members are against the nonsegregation requirement in educational grants on the ground that it represents federal control over education. They feel, moreover, that the best way to ultimately end segregation is to raise the educational level of the people in the states af fected; and to inculcate both the teachings of religion regarding human brotherhood and the ideals of our democracy regarding freedom and equality as a more solid basis for genuine and lasting acceptance by the people of the states.” 98 To Secure These R ights, U. S. Gov. Print. Off. 1947, p. 168: “There is a substantial division within the Committee on this recommendation. A maj ority favors it.” ■84 It is significant that the President has not recom mended those sections of the report of the majority of his Civil Rights Committee or the Committee on Higher Education regarding the elimination of sep arate schools in the South. 4. The Texas Bi-Racial Committee’s Recommendations In 1944, a study was made at the direction of the Bi-Racial Conference on Education for Negroes in Texas.97 The personnel on the Committee, repre senting educators of both races, was of very high calibre.98 It considered five alternatives for improv ing Negro education at the graduate and profes sional level: (1) Admit Negroes to the white uni versities; (2) Provide subsidies for out-of-state study; (3) Regional education; (4) E stablish anew sta te u n iversity fo r N eg ro es ; (5) Add graduate and professional schools to existing colleges. The Com mittee’s recommendation for the establishment of a new State university was followed by the State Legislature. (Ex. 16, R. 83.) With regard to the first alternative, the admis sion of Negroes to existing State universities for white students, the report stated at page 83: “Admission of Negroes to existing state uni versities for whites is not acceptable as a solu tion of the problem of providing opportunity 97 Respondents’ Original Exhibit 16, R. 322, 323. 98 Dr. J. J. Rhodes, Negro, President of Bishop College; Dr. W. R. Banks, Negro, Principal of Prairie View College; Dr. H. E. Lee, Negro; Dr. T. D. Brooks, Dean of Graduate School, Texas A. & M.; Mrs. Joe E. Wessendorf, past pres ident of the Texas Parent-Teachers Association; and Dr. T. W. Currie of the Austin Theological Seminary. (R. 323.) — 85— for graduate and professional study for Ne groes on two counts: (1) public opinion would not permit such institutions to be open to Ne groes at the present time; and (2) even if Ne groes were admitted they would not be happy in the conditions in which they would find them selves.” 5. The Texas Poll About the time the Legislature convened in 1947 to consider the establishment of the Texas State Uni versity for Negroes, and before the trial of this case in May 1947, the Texas Poll, an independent state wide survey of public opinion which was and is car ried in most of the Texas leading newspapers, pub lished the following results of a poll of Texas opin ion on this v ery su b jec t: “Most Negroes agree with the overwhelming sentiment of the white population in Texas that the Legislature should provide colored stu dents with a first-class university of their own instead of allowing them to enter the University of Texas. “Negroes vote 8 to 5 in favor of a separate university, as compared with a ratio of more than 25 to 1 among eligible white voters. “The Texas Poll put the question to a repre sentative cross section of adults in this form: ‘Under a Supreme Court ruling, Texas is faced with the problem of either setting up a first-class university for Negroes or allowing them to enter the University of — 86— Texas. What do you think ought to be done?’ “Here are the results, broken down to show the opinion of the 86 per cent of the people who are white and the 14 per cent who are Negroes: W h ite Negro Set up separate university____ 79% 8% Allow them in U.T____________ 3 5 Ignore court ruling___________ 1 Don’t Know __________________ 3 1 86% 14 %" The Texas Poll in its survey released March 18, 1950, found that “the general attitude of the adult public [was] much the same as it was two years ago.” The poll, which is set out in full in the Appendix, continues: “The results show that only Negroes, as a group, give a majority vote to the idea of teach ing both races in the same universities. A sub stantial minority of college-trained adults sup ports this view, but the lower educational levels who make up the greater portion of the popula tion are strongly opposed. “Some who favor the general policy of bar ring Negroes from the University say they would not object if one or two were admitted 99 99 The poll is set out in full on p. 86, Appendix to Respond ents’ Original Brief. The report continued, “In this survey, as in all scientific samplings by The Texas Poll, every person gave his opinion in strict confidence. To encourage Negro respondents to voice their opinions freely, the Poll uses trained colored interviewers to contact a cross section of their race.” — 87- to the law school or if advanced students were allowed to enroll in graduate courses not avail able elsewhere in Texas. But the majority of Texas adults is opposed even to these excep tions.” 6. The Position of the Federal Council of Churches The Federal Council of Churches of Christ has by amicus brief stated to the Court its position that sep aration of the races is “unnecessary and undesir able.” To support its position it has introduced doc uments and opinion evidence not in the record.100 It is therefore considered necessary to answer that brief by pointing out one of the strongest arguments in favor of the reasonableness of the classification in question. The churches who comprise the membership of the Federal Council, of their own choosing, maintain in the South churches, church schools, and denomina tional colleges which are in fact separate for the white and Negro races.101 This is true only in a . 100 The State’s reply to the Council’s request for permis sion to file an amicus brief on the merits of this case is set out on page 228 of the Appendix. The fact of the opera tion of separate schools by the churches was of course rec ognized by Respondents before. But it was not introduced into the case until the Federal Council itself raised it. Be cause Respondents feared that the Court might be misled Tf fhe Council’s statement, it was felt necessary to reply thereto. The Council’s practice is as important as its preachment. 101 As an example in Texas, Southern Methodist Univer- and Southwestern University are supported by the lethodist Church and attended by white students, whereas oamuel Huston and Wiley College are both Methodist-Epis copal schools for Negroes. In Tennessee the University of — 8 8 — lesser degree in the North.102 They are fine schools and excellent churches, but they are separate just as the public schools are separate. The compelling reasons which caused the people of Texas to adopt such a policy undoubtedly were and are apparent to those forming the policy of the churches and their schools. It certainly cannot be said that the policy of the churches in maintaining separate schools is based upon racial hatred and antagonism. The practice of the churches in the South and the policy of the State are the same with regard to schools and col leges. 7. Statement of Dr. Charles W . Eliot While President of Harvard University, Dr. Charles W. Eliot addressed the Twentieth Century Club of Boston on the consequences of the Berea C ollege decision, supra. Among other things he said, “If the numbers of whites and blacks were more nearly equal [in Boston] we might feel like segregating the one from the other in our (Ftn. 101 Cont’d) the South (Sewanee) is a white, Prot estant-Episcopal school; Maryville College for white stu dents and Knoxville College, for Negro students are both Presbyterian. In Georgia, Wesleyan College is for white students and Paine College for Negroes; both are Methodist schools. In North Carolina Presbyterian-supported John son C. Smith University is for Negro students and Davidson is for whites. This is also generally true in the schools of churches not members of the Federal Council; e. g., Baylor and Wake Forest Universities (Baptist) and T.C.U. (Chris- tion). See Loescher, The Protestant Church and The Ne gro, 90-105 (1 94 8 ). 102 Loescher, op. cit., supra, at 51 et seq.; 36 Survey Graphic 59-62, January, 1 94 7 ; Myrdal, An American Di lemma 636, 868-872 (1944). - 8 9 - own schools. It may be that as large and gen erous a work can be done for the Negro in this way as in mixed schools. . . . “Perhaps if there were as many Negroes here as there, we might think it better for them to be in separate schools. At present Harvard has about 5,000 white students and about 80 of the colored race. The latter are hidden in the great mass and are not noticeable. If they were equal in numbers or in a majority, we might deem a separation necessary.”103 After a tour of the South on which he made first hand observations, Dr. Eliot concluded: “The complete segregation of the colored people does not seem to me necessary in the Northern states, or wherever the proportion of negroes is small. It is unnecessary, for example, in the public schools of Boston and Cambridge. If, however, in any Northern state the propor tion of negroes should become large, I should approve of separate schools for negro children.” II Charles W . E lio t by Henry James (1930), p. 168. 8. Members of the Federal Judiciary Federal District Judge John Paul104 in December of 1947 considered anew the question of the reason- 103 Stephenson, Race D istinctions in Am erican Law, D. Appleton & Co., 1910, p. 164. 104 Republican member of 67th Congress; Special Assist ant to U. S. Atty. Gen. 19244-25; U. S. D'ist. Atty., W. D. of Va., 1929-31; Federal District Judge since 1932; Phi Beta Rappa. (W ho’s Who in A m erica 1950-51, p. 2125.) ■90— ableness of a company rule separating the races on a common carrier. He said that, “It may be conceded that a regulation . . . which was deemed reasonable a generation ago, may not necessarily be so at the present time.” He concluded, after having heard witnesses on both sides of the question that: “. . . I am unable to say that as of today the prevailing practice in the Southern states of the separation of white and colored passen gers on common carriers is arbitrary and with out reasonable basis. . . . Among the witnesses in this case were the President of the defendant company and the Presidents of two other bus companies operating in Virginia, North Caro lina and other Southern states. There was tes timony also from public officials of the states of Virginia and North Carolina whose duties re lated to the supervision of motor carriers oper ating in those states. All of these witnesses agreed in the opinion that the separation of white and colored persons traveling by bus with in the territory named was desirable and in the interest of both races. There is no ground for charging these witnesses personally with the harboring of racial prejudices and they testified with evident sincerity in expressing the view, born of their observation and experience, that the seating of white and colored passengers indiscriminately would increase the occasions for arguments, altercations and disturbances among passengers leading to annoyance, dis comfort and possible danger to passengers of both races. The opinion of these men whose activities are concerned with the operation of — 91— these carriers cannot be ignored in determining whether the rules adopted for the seating of passengers are reasonable ones. No matter how much we may deplore it, the fact remains that racial prejudices and antagonisms do exist and that they are the source of many unhappy episodes of violence between members of the white and colored races. If it is the purpose of the defendant here to lessen the occasions for such conflicts by adoption of a rule for the separate seating of whites and colored passen gers, this court cannot say that such a rule is purely arbitrary and without reasonable basis. “. . . The fact that such separation has long been enforced in a number of states by custom and by the rules of common carriers operating in such states is a matter of public knowledge of which the members of Congress are fully aware. In fact, although efforts have been made over some years to induce Congress to enact legislation on this subject, it has consistently refused to attempt such regulation. There can be no other inference than that Congress has thought it wise and proper that the matter should be left for determination to such reason able rules as the carriers might themselves adopt and that it considered that rules providing for the segregation of passengers in those sections where they were applied were reasonable ones. By its refusal to nullify the practices and regu lations of these carriers in respect to the separa tion of passengers, Congress has by the strong est implication given its approval to them. This is a field of Congressional duty and responsibil ity. This court cannot invade it and, by usurp ing the powers of Congress, lay down rules by which thiŝ defendant must guide the operation of its business— rules which Congress, in the - 9 2 - exercise of power specifically and solely en trusted to it, has refused to lay down.”105 The members of the Fourth Circuit Court of Ap peals in December, 1948, considered and affirmed a judgment holding that the regulations of a carrier separating the races were reasonable, saying: “The adoption of a reasonable regulation by an interstate carrier for the segregation of pas sengers does not violate the law as laid down by the Supreme Court; and in this case both tk reasonableness o f the regu la tion and the mm- n er in which it rwas en forced w ere fa ir ly sub m itted to the ju r y and determined against the plaintiff.”106 9. The People of Texas and Their Legislature Consider the Separation of the Races as a Necessary Exercise of the Police Power Implicit in the material heretofore set out is that, among other reasons for the separation of white and Negro students, the people of Texas and its Legislature have considered such action to be a nec essary exercise of the police power. Finding a neces sity “to preserve the public peace and welfare” the Texas Legislature, as noted, enacted a statute in Feb ruary, 1950, providing for a separation in the public parks. Underscoring the seriousness of the matter the statute authorized the closing of any facilities in the parks which are not equal until such time as the facilities are equal. Not a single vote was cast 'again the bill in the Senate of Texas. 150 Simmons v. A tlantic Greyhound Co., 75 F. Supp. 166 at 175. 106 D ay v. A tlantic Greyhound, 171 F. (2d) 59. — 93— That this legislation is supported by the great jority of the people of Texas is shown by the Texas Poll of March 18,1950, above referred to. The examples of the recent breaches of the peace in Washington, D. C., and St. Louis, Missouri, set out in the am icus brief of the Southern States on pages 7-11 are illustrative.107 Alfred H. Stone in his Studies in the A m erican R ace P roblem relates how Kansas at one time operated its schools in Kansas City on a mixed basis. When what is described as occasional clashes culminated in the killing of a white student, the Kansas Legislature enacted a statute authorizing the separation of white and Negro stu dents in that city.108 That law is still in effect. Texas has had no serious breaches of the peace in recent years in connection with its schools. The sep aration of the races has kept the conflicts at a min imum. The Texas Legislature, as evidenced by its 1950 enactment above referred to, believes that such separation is still necessary for the benefit of all. Undoubtedly one of the things which gives rise to necessity for separation of the races is a historic antipathy of many of both races for a forced close personal, social contact. Beside the daily associa tion in the classroom, at least some of which is social, universities and public schools officially maintain and sponsor extracurricular activities which do in- . 107 That brief cites the events recently occurring in those cities when public swimming pools were opened to the races on a mixed basis and relates that because of the violence which followed, the Washington pool was closed and the St. Louis pools were returned to the policy of separation. 10S Doubleday, Page & Co., p. 69, referring to Kan. Laws 1905, c. 414, p. 676. — 9 4 — volve close personal social contacts. For example, there are school dances, rooms or halls for visiting, dancing, for playing various games, swimming, and so forth. Also connected with colleges are dormi tories where the living together is on a more or less intimate plane.109 The racial consciousness and feeling which exists today in the minds of many people may be regret table and unjustified. Yet they are a reality which must be dealt with by the State if it is to preserve harmony and peace and at the same time furnish equal education to both groups. In addition to the Constitutional and Legislative findings of the necessity for the separation of the races in order to preserve the peace, there is an other ground of necessity for their separation not adequately stressed in the material heretofore set out. In the maintenance of the public schools, the State needs the support of all its people, both white and Negro. But as stated by Dean Benjamin Pit- tinger, if the power to separate the students were terminated, “ . . . it would be as a bonzana to the pri vate white schools of the State, and it would mean the migration out of the schools and the 109 The point is illustrated in the case arising on the mixed campus of Ohio State University where the Home Eco nomics Department maintained a house in which the stu dents lived. In it they learned some of the many things necessary in the operation of a home. The college officials declined to register a Negro for that course and offered her an equivalent course. The highest court of that Northern State sustained the University’s position. State ex rel- W eaver v. Ohio S tate University, cited and discussed p. 30, supra. - 9 5 - turning away from the public schools of the in fluence and support of a large number of chil dren and of the parents of those children . . . who are the largest contributors to the cause of public education, and whose financial sup port is necessary for the continued progress of public education.”110 It has been the policy of Texas to educate as many of its youth as possible in the public schools. The system, with the separation of the races, has grown and flourished with all classes of persons attending. Should the State be required to mix the public schools, there is no question but that a very large] group of students would transfer, or be moved by their parents, to private schools with a resultant de terioration of the public schools. And among those white students in the low income group who could not afford private schooling, are many who are most likely to give physical expression to their racial feelings. The need for the exercise of police power 110 R. 325-326. The fact of separation of the races has been a potent influence in encouraging attendance and sup port of the public schools in the South and it has contrib uted materially to their development and maintenance. Historically, the Peabody Foundation, a philanthropic or ganization of Massachusetts which contributed to the estab lishment of public schools in the South during the Recon struction period, urged Congress to defeat the Civil Rights Bill of 1875 in so far as it provided for mixed schools. It was stated by Trustees of the Fund that mixed schools would ‘be most pernicious to the interests of education in the com munities to be affected by it, and that the colored population will suffer the greater share of this disastrous influence.” Proceedings of the Trustees of the Peabody Educational Fund, Oct., 1874 (1875), p. 403; Bond, The Education of the Negro in the American Social Order (1934), pp. 53-57; Boyd, Some Phases of Educational History in the (South Since 1865, Studies in Southern History (1914), p. 262. — 96— would continue to exist and the necessity for sep arate schools would become infinitely more apparent The above says in a plainer language a part of what is meant by many of the authorities and per sons whose guarded and conservative conclusions have been set out heretofore as to the necessity for the separation of the races. To summarize, there is ample evidence today to support the reasonableness of the furnishing of equal facilities to white and Negro students in separate schools. After much study for the United States Government, Dr. Ambrose Caliver concluded that “the m ores of racial relationships are such as to rule out, for the present at least, any possibility of ad mitting white persons and Negroes to the same insti tutions.” He found that a very large group of Northern Negroes came South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advan tages ; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the devel opment of leadership; that the Negro is inwardly more “secure” at a college of his own people. Then there are the recommendations of the minor ity of those highly respected Americans who were appointed by the President of the United States to serve on his Committees on Higher Education and Civil Rights which believed it to the best interest of both races and their education, that the races con tinue, at least for the present, to be educated in sep arate schools. The views of these outstanding cit- — 97— izens may not lightly be regarded as unreasonable. The President has not recommended the action of the majority of the Committee advocating mixed schools. Closer to the situs of this case, the Texas Bi-Racial Committee, composed of outstanding white and Ne gro educators, concluded that the admission of Ne groes to existing State universities for whites “is not acceptable as a solution of the problem.” Its recom mendation for the establishment of a new State uni versity for Negroes was followed by the Legislature. The Texas Poll taken before that Legislature met found that “most Negroes agreed with the over whelming sentiment of the white population in Texas that the Legislature should provide colored students with a first-class university of their own.” That the separation of persons of the Negro and white races in Texas is not based on racial hatred and antagonism is shown by the fact that churches, at least of the South, have separate congregations for white and Negro members, and operate church schools and colleges which are attended on a separate basis. Dr. Charles William Eliot, President of Harvard for forty years, concluded after a tour of the South that “if in any Northern state the proportion of Ne groes should become large, I should approve of sep arate schools for Negro children.” The Congress and the Legislatures of 17 states consider it desirable and necessary to provide sep arate schools. The legislative acts are based not only on the belief that it is the best way to provide educa tion for both races, and the knowledge that separate - 9 8 - schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare. In addition to the material herein set out, the am icus brief of the Southern States ably develops the necessity for the exercise of the police power. The 1950 act of the Texas Legislature conclusively shows that it believes and finds that the necessity still exists. The matter of the reasonableness of the classifi cation has been considered and upheld recently by Federal judges and by a Federal jury. The members of this Court including many of its most outstanding jurists, in considering and deciding the cases set out in Point I, considered the classification to be reason able. It is respectfully submitted that there is ample evidence to sustain the reasonableness of the classi fication in question and that the prior decisions of this Court holding the classification to be reasonable should be followed. C. If the Court Goes Behind Its Own Decisions and the Constitution and Statutes of Texas on the Question of Reasonableness, and If It Decides That It Has Not Sufficient Material From the Record, the Briefs, and Its Judicial Knowledge to Find Any Reasonableness in the Classifica tion Made by Texas, the Southern States, and the Congress, Then, and Only in That Event, Respondents Are Entitled on a New Trial to Fully Develop That Proposition. As heretofore stated, the trial court was of the opinion, based on the decisions of this Court, that the 99— sole question to be determined was whether the facili ties offered Petitioner were substantially equal to those offered white students similarly situated . That Court thus refused to go behind the pro visions of the Texas Constitution and statutes on the question of the reasonableness of, or necessity for, those provisions. He excluded much of Petitioner’s proffered testimony as to what happened at other places and at different times. His inquiry was limit ed to the particular facts of this case. Respondents, also believing that the decisions of this Court were correct and were controlling, did not attempt to put on a complete case in defense of the Texas Constitutional provisions and statutes. Those provisions, with the decisions of this Court, were be lieved to be the law of the case; and it was tried ac cordingly. If, however, this Court determines not to follow its former decisions or feels the necessity of an in dependent evaluation of the question of the reason ableness of the classification, it is believed and sub mitted that the matter herein present is ample to support the provisions of the Texas Constitution and Statutes which are involved. But if, and only if, the Court here decides not to follow its former decisions, and if the Court deter mines that the classification must be struck down un less more is shown the Court, then the State is en titled to a new trial in which to fully develop the proposition. Respondents do not wish to be misunderstood. While they confidently expect that this Court will follow its previous decisions, the principle in ques- — 100 tion is too important to the State of Texas for any contingency or possibility, however remote, to be overlooked. It is only against the remote possibility that this Court may decline to follow its former de cisions and be of the opinion that the matter here presented fails to show any reasonableness whatso ever that this point is preserved. Fourth Point The fact question of whether Petitioner was of fered equal facilities is not properly before this Court because Petitioner did not present it to the Texas appellate courts for review. But assuming the issue to be properly before the Court, there is ample evidence to support the trial court’s findings of fact and judgment. 1. The Fact Question As to the Equality of the Two Law Schools is Not Properly Before This Court. It is elementary that whether two things are sub stantially equal to each other is a question of fact, The trial court found as a fact, after hearing con siderable evidence from all parties, that: “. . . this court is of the opinion and finds from the evidence that . . . the Respondents herein . . . have established the School of Law of the Texas State University for Negroes in Austin, Texas, with substantially equal facil ities and with the same entrance, classroom study, and graduation requirements, and the same courses and the same instructors as the School of Law of The University of Texas; that 101— such new law school offered to Relator privi leges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at The University of Texas. . . . ” (R. 440.) The Court further found that: “From his own testimony, Relator would not register in a separate law school no matter how equal it might be and not even if the separate school affords him identical advantages. . . .” (R. 440.) No exception was taken to such finding. In view of Petitioner’s statement (R. 188) that he would not attend the separate school even if it were absolutely equivalent, it would appear that he is not in a posi tion to argue about the equality of the facilities. He stated himself that as to him it made no difference. (R. 188.) The same position was taken on appeal. The find ings of fact of a court sitting without a jury, under the laws of Texas, have the same force and are en titled to the same weight as the verdict of a jury.111 These findings will not be disturbed by a Texas ap pellate court where there as evidence to support them, even though the evidence may be conflicting.112 The Texas Courts of Civil Appeals have the power to reverse and remand where the evidence so pre- 111 Bird v. Pace, 26 Tex. 487 (1863) ; Jordan v. Brophy, 41 Tex, 283 (1874) ; Rich v. Ferguson, 45 Tex. 396 (1867) ; Baldridge v. Scott, 48 Tex. 178 (1877). 112 Gray v. Luther, 195 S. W. (2d) 434 (Tex. Civ. App. 1946, error refused) ; Highsmitk v. Tyler State B. & T. Co., 194 S. W. (2d) 142 (Tex. Civ. App. 1946, error refused). — 102— ponderates against the judgment that it should be set aside. Where there is no evidence to support the findings and judgment, the Courts of Civil Ap peals and the Texas Supreme Court are empowered to reverse the case and render the proper judg ment. 113 Under Texas,procedure it is necessary to invoke the jurisdiction of the appellate courts in this re gard.114 Petitioner did not do so.115 As stated by the Court of Civil Appeals: “Our jurisdiction in the latter regard was not invoked in this case.” (R. 461.) Similarly, an examination of Petitioner’s assign ments of error on Motion for Rehearing in the Court of Civil Appeals will show that again he presented no assignment of error with regard to the fact find ing of substantial equality. (R. 461-464.) The Texas Supreme Court is empowered to re verse and render a case where there is no evidence 118 Patrick v. Smith, 90 Tex. 267 (1896); Eastham v. Hunter, 98 Tex. 560 (1905) ; Sonora Realty Co. v. Fabens Townsite & Improvement Co., 13 S. W. (2d) 965 (Tex. Civ. App. 1929). lli:Wisdom v. Smith, 146 Tex. 420 (1948) ; DeWitt v. Brooks, 143 Tex. 122 (1944) ; Rule 476, Tex. Rule Civ. Pro., infra, note 117. 115 See Petitioner’s points of error in the Court of Civil Appeals, Appendix, to Respondents’ Original Brief, p. 105. The only assignment even approaching a challenge of the sufficiency of the evidence to support the fact finding was his 4th point which complained of the holding that “the proposal to establish a racially segregated law school af forded the equality required by the equal protection clause . . .” That assignment says that even if the two schools are identical, the fact that they are separate violates the 14th Amendment. It does not raise the question of the equality of the two “separate” schools. — 103— to support the findings of fact and judgment.116 But this point must first be made in the Motion for Re hearing in the Court of Civil Appeals.117 There is no assignment of error in Petitioner’s Application for Writ of Error to the Texas Supreme Court on the want of evidence to support the fact findings.118 So in this case, the question of evidence to support the finding of fact as to the equality of the schools was not before the Texas Supreme Court.119 It had no jurisdiction to consider this point. It follows that the refusal of the application for writ of error by the Supreme Court of Texas was based solely on the law point as to the power of the State to provide separate facilities. Its jurisdic tion on the question of whether there was evidence to support the fact finding of equality of facilities of the two separate schools was not invoked. Its re fusal of the application for writ of error, therefore, could not be construed as a holding on whether there 116 Schelb v. Sparenberg, 133 Tex. 17 (1939) ; Sovereign Camp W.O.W. v. Patton, 117 Tex. 1, (1927). 117 Moore v. Dilworth, 142 Tex. 538 (1944); Railroad Comm. v. Mackhank Pet. Co,, 144 Tex. 393 (1945). Rule 476 (Tex. Civ. Pro.) provides: “Trials in the Supreme Court shall be only upon the questions . . . raised by the assignments of error in the application for writ of error.” 118 Petitioner’s Assignments of Error in the Texas Su preme Court are set out in the Appendix to Respondents’ Original Brief page 106. • U9, ^ is fflct was pointed out by Respondents in their reply m ™ê Texas Supreme Court. Their second point read in part, “No assignment of error was made as to such findings in Petitioner’s Motion for Rehearing in the Court of Civil Appeals ̂ There is no assignment in this Court that there is no evidence to support such findings.” Petitioner did not even reply to such point. — 104— was evidence to support that determinative finding of fact; the court had no jurisdiction as to that point. With regard to cases involving disputed fact is sues, this Court has announced that it accords great respect to the conclusions of the State judiciary. It has said: “That respect leads us to accept the conclusion of the trier of disputed issues 'unless it is so lacking in support in the evidence that to give it etfect would work that fundamental unfair ness which is at war with . . . equal protec tion.”120 v a n r | ' At the same time, the Court has announced that in cases arising under the Fourteenth Amendment the Court feels that its duty “calls for our exami nation of the evidence to determine for ourselves whether a federal constitutional right has been de nied.”121 It is submitted that the Court is under no duty to make such an examination where Petitioner him self has not raised the point for the appellate courts of the State to pass upon. This Court has stated many times that it will not review matters not presented to the State Courts. The statement by Mr. Chief Justice Stone in McGold- rick v. C om pagnie G enerate Transatlantique, 309 U. S. 430 (1940), is particularly applicable here: “But it is also the settled practice of this Court, in the exercise of its appellate jurisdic tion, that it is only in exceptional cases, and 120 A,kins v. Texas, 325 U. S. 398, 402, (1 9 4 5 ). 121 Ibid., note 120. — 105— then only in cases coming from the federal courts, that it considers questions urged by a petitioner or appellant not pressed or passed upon in the courts below. . . . In cases com ing here from state courts in which a state stat ute is assailed as unconstitutional, there are reasons of 'peculiar force which should lead us to refrain from deciding questions not presented or decided in the highest court of the state whose judicial action we are called upon to re view. Apart from the reluctance with which every court should proceed to set aside legisla tion as unconstitutional on grounds not prop erly presented, due regard for the appropriate relationship of this Court to state courts re quires us to decline to consider and decide ques tions affecting the validity of state statutes not urged or considered there. It is for these rea sons that this Court, where the constitutionality of a statute has been upheld in the state court, consistently refuses to consider any grounds of attack not raised or decided in that court. “. ; . In the exercise of our appeallate juris diction to review the action of state courts we should hold ourselves free to set aside or revise their determinations only so far as they are er roneous and error is not to be predicated upon their failure to decide questions not presented. Similarly their erroneous judgments of uncon stitutionality should not be affirmed here on constitutional grounds which suitors have failed to urge before them, or which, in the course of proceedings there, have been abandoned.” Those “reasons of peculiar force” are particularly applicable here since Petitioner attacks the consti tutional validity of the Texas Constitution as well — 106— as its statutes. This Court has been unwavering in the application of the doctrine that it will not con sider points not presented to the highest State court.122 Since the fact question of substantial equality was decided by the trial court contrary to Petitioner’s contentions, and he failed to present his point to the State appellate courts, he is not now in a position to ask this Court to review that matter. It is therefore respectfully submitted that this Court should accept the fact findings of the State court that the education offered Petitioner in this case was substantially equal to that offered white students similarly situated and that the decision in this case should be affirmed. Petitioner asserts in his Point IV that this Court should strike down its previous decisions because separate schools can never be equal. In the first place, that assumes the answer to the question as to whether or not Petitioner was offered equal facili ties in this case. The trial court found that he was. And before he can be heard to say that no facilities anywhere can ever be equal, it was incumbent on him to have the trial court’s findings in this case set aside if he could. That he did not do in the Appellate Courts of Texas. 122 W ilson v. Cook, 327 U. S. 474 (19 46 ) ; H unter Co., Inc., v. M cH u gh , 320 U. S. 222 (1 9 4 3 ) ; Clark v. Williard, 294 U. S. 211 (19 35 ) ; N e w Y ork v . K lien ert, 268 U. S. 646 (19 25 ) ; Chicago, B . & Q. R . Co. v . Railroad. Commission, 237 U. S. 220 (19 15 ) ; W illough by v . Chicago, 235 U. S. 45 (19 14 ) ; R obinson & Co. v . Belt, 187 U. S. 41 (1902); Bolin v . N ebraska, 176 U. S. 83 (1 9 0 0 ). — 107— By the assertion that separate schools or separate institutions of any kind, can never be equal, Peti tioner expects this Court to judicially know all the facts as to all the places where separate facilities are now being offered to any groups, or which may here after be offered. Respondents say that the assertion is not only unfounded, but that there is no precedent for the use of judicial notice on such a scale on dis puted facts. Discussing the exercise of judicial knowledge this Court said in B row n v. P iper, “Every reasonable doubt upon the subject should be resolved promptly in the negative.” 91 U. S. 37, 43 (1875). Furthermore the assertion that no separate Negro college with equal facilities could be equal to one for white students is to brand the Negro race with an inferiority to which Respondents cannot subscribe. 2. Assuming the Fact Question of the Equality of the Schools is Properly Before the Court for Determina tion, There is Substantial Evidence to Support the Fact Findings of the State’s Trial Court. An examination of the Record will show that there is substantial evidence to support the trial court’s fact finding. As set out in the discussion by the Tex as Court of Civil Appeals (R. 449), it is not required that the accomodations be identical. The test is whether they are substantially equal.123 ™ McCabe v . A . T. & S. F . R y ., 235 U. S. 1 51 : “ . . . i f facilities are provided, substantial equality o f treatm ent o f persons traveling under like cond itions cannot be re fu sed .” Hall v. DeCuir, 95 U .S. 4 8 5 : “ Substantial equality o r r ig h t is the law o f the State and the U nited S ta tes ; but equality does not mean identity. . . .” M issouri ex rel. Gaines v . Canada, 305 _U.S. 3 3 7 : “ . . . the state is bound to fu rn ish him within its borders fa c ilit ie s f o r legal education sub stantially equal to those w h ich the state a fforded fo r persons oi the w hite race. . . — 108- The point may be illustrated by assuming a situ ation applicable only to white students. In most large cities in the South, there are several white pri mary schools. They generally differ in age, in beauty, in amount of playground available (depending on how far in town they are), et cetera. Some have more of this and less of that. Of course the white students are entitled to “equal protection.” Yet parents can not successfully demand the admission of their chil dren to any particular school so long as the school to which their children are assigned is “substantially equal.” The principle is applicable here. The operation of the public schools, including publicly-owned colleges, requires the test to be “substantial equality.” Iden tical facilities and physical plants are not required in assigning white students to schools for white children. Nor should it be required that white schools should be identical with Negro schools. All are schools furnished at the State’s expense; and so long as each student is offered substantially equal facili ties, he is afforded the equal protection of the laws. As set out above, whether substantially equal facil ities are offered students in different schools is a question of fact. Assuming the question to be prop erly before the Court, there is substantial evidence to support the State court’s finding of fact. The fol lowing evidence in that regard was adduced in this case: Entrance, Examination, Graduation, and Similar Requirements The requirements for admission and fees, and reg ulations relating to the classification of students, — 109 classwork, examinations, grades and credits, stand ards of work required, and degrees awarded w ere ex actly the same as those published in the latest cat alogue of The University of Texas and used at such institution. (Ex. 7, R. 85, 371-372; 82, 114, 160.) The Faculty The instructors at the School of Law of the Texas State University for Negroes at the time of trial were the same professors who had taught or were teaching the same courses at The University of Texas Law School. (R. 82-84,113-114, 369-371, 83.) They were the same instructors Petitioner would have had if he had been enrolled in The University of Texas. (R. 113-114.) The instructions from the Board of Regents were to use all of the faculty of the University Law School, so far as necessary, in order to maintain a full curriculum at the Negro Law School until other full-time professors could be employed for the Negro Law School. (R. 121.) The budget provided for four professors at $6,000 per year, the same pay base for professors at The Uni versity of Texas. (R. 70.) Each of the instructors devoted all of his time to teaching; each a full-time professor. (R. 59-60.) With the small enrollment at the Negro Law School, the instructors would have been more available to the students for consulta tion than they would have been to students at The University of Texas with its large classes of 150 to 175 students. (R. 121-122.) The Dean and Regis trar of the two law schools were respectively the same persons. (R. 372, 85.) — 110 Curriculum The curriculum at the Negro Law School and at The University of Texas [was exactly the same. (R. 81, 82.) The courses offered, beginning students at the Negro Law School were identical with those of fered beginning students at the University: Con tracts, Torts, and Legal Bibliography. (R. 84.) These courses, with the same professors, are set out in Respondent’s Exhibit 7. (R. 85, 371-372.) Classroom The classroom requirements were identical. (R. 82. ) With much smaller classes, the Negro Law School would have provided the student with more opportunity to participate personally in classroom recitations and discussions. (R. 306.) In an aver age law class at The University of Texas Law School a student would be called upon to recite only an aver age of iy2 times a semester. (R. 305.) In a smaller class the students would receive better experience and education; they would be called on more fre quently, and would be more “on their toes.” (R. 306.) The students would come to class better pre pared because their chances of being called upon would be much greater; there would be a greater pressure to keep up their daily work. (R. 315.) Dean McCormick testified that “in the Negro Law School he [Sweatt] would have gotten a good deal more personal attention from the faculty than he would have had he been in the large entering class in The University of Texas.” (R. 117.) - 1 1 1 - Library At the time of trial, there were on hand in the Negro Law School books customarily used by the first-year class of the University, and other books which Miss Helen Hargrave, Librarian of the Uni versity Law School, thought would be useful. (R. 131.) There were about 200 of these books. (R. 21.) There were also available for transfer to the Negro Law School between 500 and 600 books from the University (R. 147), plus gifts of between 900 and 950 books. (R. 147.) In addition, the entire library of the Supreme Court of Texas was specifi cally made available to the Negro Law School by the Legislature. (R. 45.) The Supreme Court Library is located in the State Capitol Building on the sec ond floor. (R. 6.) The Capitol grounds are some 20 feet from the Negro Law School, and the en trance is only about 300 feet from that School. (R. 37, 80.) The Supreme Court Library contains approxi mately 42,000 volumes (R. 133), which number is far in excess of the 7,500-book minimum require ment of the American Bar Association. (R. 6.) Ex cluding duplicates, The University of Texas Law Library contains 30,000 to 35,000 books. Counting duplicates, it contains around 65,000. (R. 133.) These books serve 850 law students of The Univer sity of Texas. (R. 147.) In some respects the Supreme Court Library is stronger than that of the University. Being a Gov ernmental Depository, the Supreme Court Library automatically receives many reports, such as those 112 of administrative bodies. It is the strongest library in the South on State Session Laws. It contains Attorney General’s Opinions, Tax Board Opinions, Workmen’s Compensation Reports, and other items not carried by the University. (R. 132, 133.) The Supreme Court Library is more spacious for a stu dent body of ten students than are the facilities at The University of Texas Law School Library, which are exceedingly crowded. (R. 79.) There is no more confusion, and, in most instances, less confu sion, in the Supreme Court Library than at the Law Library of the University because of the large num ber of persons using the latter. (R. 146.) On the other hand, the Supreme Court Library does not have as many textbooks, legal periodicals, or English reports as the University Law Library. (R. 131-132.) The Court’s Library contains the Har vard, Columbia, Yale, and Texas Law Reviews, and the American Bar Association Journal. (R. 132.) It has the English Reports up to 1932.124 The Law Library of The University of Texas and that of the Supreme Court are substantially equal except for the texts, legal periodicals, and English Reports. (R. 132-134.) However, all of such texts, periodicals, and Eng lish Reports were readily available to the Negro Law School on a loan basis from the Law Library of The University of Texas. (R. 63-64.) In addition, a complete law library was being Pr0‘ cured. Of such number 1,281 books were immedi- 124 T he evidence show ed that first-year law students rarelj used the E nglish R eports (R . 1 4 7 -1 49 ). __113— ately available (R. 158), and 8,727 had already been requisitioned. (R. 155.) Orders had been placed for 5,702 of the books (R. 156), all deliverable with in ten to sixty days. (R. 156.) Wherever new books were available, they were ordered; second-hand books were only ordered where new ones were not available. (R. 156.) The library requisitioned in cluded 20 Law Reviews, Indices of Legal Periodicals, Citations, Digests, Restatements, textbooks, stat utes, the complete West Publishing Company Re porter System, etc. (Respondents’ Original Exhibit 8, R. 130.) The undisputed evidence is that the books ordered were sufficient to meet the requirements of the American Association of Law Schools. (R. 115.) The Physical Facilities Whereas The University of Texas Law School has three classrooms for 850 students,125 the Negro Law School had two classrooms, a reading room, toilet facilities, and an entrance hall (R. 77; Respondents’ Original Exhibit 4; R. 67), for a much smaller stu dent body. The two law schools possessed approxi mately the same facilities for light and ventilation (R. 77, 88), though most law schools, including The University of Texas, need artificial light in the day- 125 The Law School bu ild ing at The U n iversity o f Texas was built in 1902 f o r 400 students (R . 21 ) ; it now has 850 students (R . 7 9 ). The T exas B a r A ssocia tion has been trying fo r years to get the bu ild in g torn dow n and an ade quate one built (R . 2 1 ) . — 114- time. (R. 89.) The Negro Law School, assuming at that time a class of ten students, had a greater floor space per student.126 The location of the Negro Law School at the time of the suit was particularly good. It was directly north of the State Capitol, separated only by a 20- foot street. (R. 37.) It was within 100 yards of the Supreme Court of Texas, the Court of Civil Appeals, the Attorney General’s Office, and the Legislature, (R. 65.) It was between the business district of Aus tin and The University of Texas, eight blocks south of the University, and eight blocks nearer the busi ness district. (R. 37.) The building housing the Negro Law School was a three-story building of brick construction. (R. 164-170.) The first floor (not a basement) was occu pied by the School at the time of trial (R. 41), but the upper two stories of the building were available as needed. (R. 47.) Before March 10, 1947, the premises were cleaned and painted. (R. 39.) The building had ample space to house the 10,000 volume library and leave sufficient space for classrooms and reading rooms. (R. 166.)127 126 The N egro school, first floor, had 1060 square feet, ol 106 square fe e t p er student. The U n iversity o f Texas Law S chool has 46,518 square fe e t f o r 886 students, or 53 square fe e t p er student. A n d th is did n ot take into account the upper tw o stories o f the N egro School w h ich w ere available w hen needed (R . 4 7 ) . T h e floor plan show s a classroom 12 ' x 1 2 '8 " ; a classroom 16 ' 6" x 1 1 '6", a reading room and office 1 9 '10 " x 15 '7", and en trance hall and toilet facil ities. R espon dent’ s O rig inal E x h ib it 4. 127 T here are certa in m in or featu res o f a law school great ly em phasized by P etition er. A s th ey w ould have been ap p licable to S w eatt h im self, th e evidence show ed: 1. T he L a w R eview . The T exas L a w R eview is not an officia l fu n ction o f the State o f T exas o r the University, — 115 With reference to the membership requirements of the Association of American Law Schools,128 it was shown that the Negro Law School, at the time of this trial, met the great majority of the nine require ments : (1) It was a school not operated as a commercial enterprise, and the compensation of none of the of ficers or members of its teaching staff was depend ent on the number of students or the fees received. (R. 114) (2) It satisfied the entrance requirements; i. e., pre-legal training, etc. (R. 114.) (Ftn. 127 Cont’d ) It is a separate legal en tity , a p rivate corporation (R . 3 0 6 ). It w as fou n d ed b y the law yers o f Texas and financed b y th eir con tribu tions (R . 106, 1 1 2 ). Considerably m ore than h a lf o f the a rticles (as d istin guished from case notes) a re w ritten b y persons w h o are not U niversity students (R . 306, 3 0 7 ). There is no ru le which would perm it the con sideration o r pub lication o f an article w ritten b y a N egro (R . 3 0 7 ). N ot all a ccred ited schools have law re v ie w s ; f o r exam ple, the B a y lo r L aw School (R . 3 0 7 ). (A t the tim e o f tr ia l.) N either Sw eatt nor any other first-year law student w ould be eligible to write fo r the law rev iew (R . 105, 3 15 -3 1 6 ). 2. Scholarships: A ll the scholarsh ips offered a t T he University o f Texas L aw School a re con tribu ted fro m p ri vate sources; they do not com e fro m the State (R . 103, 1 1 2 ). 3. The Order o f the C oif is a p rivate and n ot a public organization (R . 104, 1 1 2 ). F irs t-yea r students a re not entitled to adm ission. Students are e lig ib le on ly on g rad uation (R . 1 12 ). 4. The Legal A id C lin ic: F irs t-yea r students are not eligible to assist therein . P ractica lly all the w ork is done by third-year students (R . 105, 1 1 2 ). 5. M oot C ou rt : N o first-year students are entitled o r re quired to participate (R . 112, 1 0 2 ). A n y one o f the class rooms at the N egro L aw School could be used f o r that p u r pose (R. 102 ). i28 These requirem ent are set out in R ela tor ’s E x h ib it 1 (R. 375-384; R . 5 ) . ■116— (3) The school was a “full-time law school.” The school work was arranged so that substantially the full working time of the student was required at the school. (R. 114-115.) (4) The conferring of its degrees was condi tioned upon the attainment of a grade of scholarship attained by examinations. (R. 115.) (5) No special students were admitted. In this, the School’s requirement was stronger than that of the Association which permits such students under certain considerations. (R. 115.) (6) The 10,000 volume library ordered for the School was sufficient to meet the library require ments. (R. 115.) The selection of the books was such as to conform with the Association’s require ments. In addition, the Supreme Court Library of 40,000 volumes was available, plus loan privileges from the Law Library of The University of Texas. (R. 115; 63, 64.) (7) The seventh requirement is that the “faculty shall consist of at least four full-time instructors who devote substantially all of their time to the work of the school.” The professors in this case were full-time professors in the sense that all of their time was devoted to teaching. However, all of their teacfl- ing was not done at the Negro school; they were also teaching at Texas University. (R. 116,117.) (8) Provision was made for keeping a compete and readily accessible individual record of each stu dent. (R. 115.) ■117— (9) The requirement reads: “It shall be a school which possesses reasonably adequate facilities and which is conducted in accordance with those stand ards and practices generally recognized by member schools as essential to the maintenance of a sound educational policy.” Dean Charles T. McCormick, President of the American Association of Law Schools in 1942 (R. 76), testified that in his opinion the Negro Law School met this requirement. (R. 116.) The testimony was that a two-year period is gen erally required before any law school may be ad mitted to membership in the Association of Amer ican Law Schools. Dean McCormick testified that he knew of no reason why the Negro Law School could not comply with all of those standards within that two-year period— before any entering student (including Petitioner) could graduate from the school. (R. 118.) Regarding the Law School at the time of trial, Mr. D. A. Simmons, President of the American Judicature Society 1940-1942, and President of the American Bar Association 1944-45 testified: “In my opinion, the facilities, the course of study, with the same professors, would afford an opportunity for a legal education equal or substantially equal to that given the students at The University of Texas Law School.” (R. 8.) Dean Charles T. McCormick, President of the As sociation of American Law Schools, 1942 (R. 76), testified that facilities at the Law School for Negro citizens furnished to Negro citizens an equal op- — 118— portunity for study in law and procedure (R. 85); that considering the respective use by the respective number of students, the physical facilities offered by the Negro Law School were substantially equal to those offered at The University of Texas Law School. (R. 78, 79.) He stated that: “I would say . . . the Negro student has at least equal and probably superior facilities for the study of law.” (R. 108.) Mr. D. K. Woodward, Jr., Chairman of the Board of Regents of The University of Texas, testified: “What we set up there was a plant fully ade quate to give the very best of legal instruction for the only man of the Negro race who had ever applied for instruction in law at the Uni versity in about 63 years of the life of the School.” (R. 48.) “I am talking as a man familiar with what it takes to provide a thorough training in law in the state of Texas, and I stated the facts within my own personal knowledge, that the fa cilities which the Board of Regents of the Uni versity set up in accordance with Senate Bill 140 are such as to provide the Relator in this case the opportunity for the study of law un surpassed any time elsewhere in the State of Texas, and fully equal to the opportunity and instruction we are offering at the University any day.” (R. 42,43.) It is submitted that these facts constitute suf ficient evidence to support the State court’s finding of fact that the education offered Petitioner was sub stantially equal to that offered white students similarly situated. Addendum The facts regarding the School of Law of Texas State University have materially changed since the trial of this case.129 They have changed to such an extent that even assuming the fact question of the equality of the two schools is before the Court, it might well consider that such issue is moot. In this connection it will be remembered that Petitioner tes tified that no matter how equal the separate Law School might be, he would not attend it. (R. 188.) These facts are set out to show the good faith of Respondents and the State of Texas, and to refute the statements and insinuations of Petitioner and his amici curiae that the State is offering a “base ment” type of legal education to its Negro students.130 They are also set out because this is a mandamus ac- . 129 This Court may consider any change in facts superven ing since the judgment was entered. G ulf C. & S. F . R y . v. Dennis, 224 U. S. 503 (1912) ; W a tts, W a tts & Co. v . Unions Austnaca, 248 U. S. 9 (1918) ; M issouri ex rel. W abash R y . v. Public Service Com m ., 273 U. S. 126 (1927) ; Patterson v Alabama, 294 U. S. 600 (1935) ; Villa v. Van Schaick, 299 U.S. 152 (1936). 30 The good faith of the State is further evidenced by the reaching of a Negro at the Medical School of The University ° , . xf s Galveston. Since the State has no separate ledical school for Negroes, he is being taught there pur suant to a contract between The University of Texas and exas State University. The State is simply following the Gaines case. •120— tion in which equitable principles are applicable.131 In this case the Petitioner is seeking an order from this Court directing his admission to The University of Texas. As stated under Section C of Respondents’ Point III, Respondents confidently expect that this Court will follow its previous decisions; and even as suming the fact issue of the equality of the schools to be before the Court, that it will agree that there is substantial evidence to support the State Court’s fact findings. But, as stated, the case is too important to the State to leave unconsidered any contingency, however remote. Should the Court therefore dis agree with courts of Texas and with respondents on the issues regarding the facts in this case, these supervening facts should be before the Court to as sist it in arriving at its judgment as to the proper disposition to be made of the case. Supervening Facts 1. Accreditation. The Law School of Texas State University has been granted provisional ap proval by the American Bar Association. The “pro vision” is that it continue to maintain its present high standards for a reasonable length of time. It has been found to meet the Standards of the Amer ican Bar Association.132 131 United States v. B ern , 289 U. S. 352 (1933) and cases therein cited. 132 “The Council has found your school not to be in M compliance with its standards but to exceed those standards in many respects. We have no doubt that your school will continue to comply . . . ” Letter of John G. Hervey, Ad visor of American Bar Association, Section on Legal BdU' cation and Admissions to the Bar, to the Dean of the T.S.U- Law School set out in the Appendix, p. 225. See also the announcement of approval. Appendix p. 224. — 121— The school, including of course its faculty, has also been found by the American Association of Law Schools to meet its standards.183 Its accreditation was delayed pending the outcome of this lawsuit and for that reason only. Petitioner, who brought this suit, cannot complain about that condition. 2. Library. The testimony on the trial of the case was that some 10,000 volumes of law books had been ordered (R. 155, 158.) As of the time of Re spondents’ reply brief on Petition for Certiorari, some 16,300 volumes (including those listed as or dered on the trial) were in its shelves.133 134 The latest official catalogue of that law school shows that over 23,000 volumes are in its library. It is still growing. 3. Student Body. As of the time of the latest report of the State Auditor, there were 23 Negro stu dents in the law school.135 The school maintains a practice court, bar association, and legal aid clinic for its law students.136 137 Henry Doyle, who enrolled in the law school short ly after the trial of this case in May, 1947, has suc cessfully passed the Texas Bar Examinations and is licensed to practice law in all the State Courts of Tex as.13, The same opportunities were of course avail- 133 Appendix p. 227. See the Report of the Auditor and the Report of the events of that University to the Governor of Texas set out Briefg6S ^ anĉ ^ Respondents’ Original See Report of the Auditor to the Governor of Texas in lseyPP®n(hx to Respondents’ Original Brief, p. 100. Ralletin of Texas State University School of Law, 1949-50, pages 6, 7. 137 Appendix p. 227. — 122— able to Petitioner who could have had his license to practice by now. Others will become eligible to take those examinations in the near future. Over 2,000 students are in other divisions on the campus of this university.138 4. Physical Facilities. The law school has moved into exclusive possession of an entire floor of one wing of a new two-million-dollar-building. The at tached pictures will show that the building is modern in design and that the equipment is first-class.139 138 Ibid, note 135, supra. 139 The pictures are of a portion of the exterior of the building in which the Law School is housed, p. one of pho tographs which follow; a classroom in the Law School, p, two of photographs; a law professor’s office, p. three of pho tographs ; and the hall between the law classroom and the law library, p. four of photographs. (Page Three) A Law Professor’s Office. - 1 2 3 - Summary and Conclusion The previous decisions of this Court have an nounced the law applicable to this case: that the States, which are not required by the Federal Con stitution to maintain any schools, may provide edu cation to white and Negro students in separate schools so long as equal education is offered to both groups. Attending a public school or university is a privilege extended by the State. It is not a righ t of a citizen of the United States. So long as the privileges extended to all groups are equal, no one is deprived of the equal protection of the laws.140 The principle was summarized by this Court in the Gong Lum decision: “The question here is whether a . . . 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, uo. Mr. Justice Clifford in the D eC uir case: “ . . . equality of rights does not involve the necessity of educating white and colored persons in the same school any more than it does that of educating children of both sexes in the same school, or that different grades of scholars must be kept m the same school; . . . any classification which pre- serves substantially equal school advantages is not pro- 1 .J3'y ehher the State or Federal Constitution, nor woum it contravene the provisions of either.” all a Jv l ! ce Harlan in the Cumming case: “ . . . while P11 ?™at the benefits and burdens of public taxation anv silarec* by citizens without discrimination against Dennio ,-SS °? a,ccount °f their race, the education of the bplnncri n +Ĉ ?i° s main âined by state taxation is a matter belonging to the respective States. . . .” — 124- brown, yellow or black. Were this a new ques tion, it would call for very full argument and consideration, 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.” This Court in the Gaines, case, following its former decisions, referred to the system of furnishing equal education in separate schools as “a method the validity of which has been sustained by our de cisions.” Those opinions correctly interpret the meaning of the Fourteenth Amendment and the intention of the Congress which proposed it and of the Legislatures of the States which adopted it. The review herein set out clearly shows that the Amendment was not intended to require mixed schools. On the contrary, as unmistakable evidence of its interpretation of the amendment, the Congress which proposed the amend ment enacted legislation continuing its separate schools both during and after the adoption of the amendment. The State Legislatures likewise, with the exception of the very few states which preferred mixed schools of their own volition, continued to operate their separate schools. Those decisions of this Court also properly re fused to strike down, as an unreasonable exercise of the State’s police power, the State Constitutions and Statutes providing for equal education of white and Negro students in separate schools. There is ample evidence today for the reasonableness of and neees- ■125— sity for such separation.141 The Texas Legislature found that such a necessity existed as late as Feb ruary, 1950.142 Dr. Ambrose Caliver of the United States Office of Education concluded that in some of the States, the m ores of race relationships ruled out for the present at least the possibility of admitting white persons and Negroes to the same institutions; that there was much evidence that Negroes had a more normal social life and had a better chance to develop leadership at a separate college. Dean Pit- tenger pointed out that forced mixed schools would be a bonanza to the private schools of Texas, and would cause large withdrawals from the public schools; that the public schools need the continued support of all citizens; and that a great amount of that public support would be lost by a mixing of the races in the schools. The Texis Bi-racial Committee concluded that the admission of Negroes to existing state universities for white students was not accept able at this time for the solution of providing oppor tunity for graduate and professional work. The 141 It will be remembered that the question of the reason ableness of the classification was not tried out in this law- ^cause the trial court, correctly we think, considered that this Court had settled the matter. If, and only if, the Court disagrees with its former decisions and feels that it has not sufficient material before it to sustain the classifi cation, then Respondents are entitled to a new trial to fully develop that proposition. in the Legislature has accurately reflected the feel- ^exas People is shown by the Texas Poll surveys in -f' f an<̂ -^0- The 1947 poll showed that the great ma- L " y favored a first-class university for the Negroes rather pin/ 1 j - °f the races. Those feelings had notchanged m 1950. - 1 2 6 - maintenance by the churches in the South of sep arate schools and colleges demonstrates that the policy of separation is not based on hatred and an tagonism. A substantial minority of those outstand ing citizens appointed by the President on his Com mittees on Higher Education and Civil Rights were not in favor or forced mixed schools at this time.143 This and the other evidence set out in the brief dem onstrate that the policy of the people of Texas is not wholly without reason. The trial court found as a fact that Petitioner was offered facilities and advantages substantially equal to those offered white students at The Univer sity of Texas. Petitioner did not present that fact issue to the appellate courts of Texas. The fact question is therefore not properly before this Court. But assuming that it is, there is substantial evi dence to support the fact finding. The supervening facts all of which are not now be fore the Court, show that the law school of Texas State University has grown and expanded since the trial of this case. It has been found by the Amer ican Bar Association and the American Association' of Law Schools to meet their standards. 143 That group includes Dr. Arthur H. Compton, Chan cellor, Washington University, St. Louis; Douglas S. Free man, Editor, Richmond Times-Dispatch; Lewis Jones, Pres ident, University of Arkansas; Goodrich C. White, Pres ident, Emory University, and Senator Frank P. Graham of North Carolina, formerly President of the University of North Carolina. Dr. Charles W. Eliot, former President of Harvard, said that if the proportion of Negroes in the North should become large, he would approve of separate schools. ■127— It is therefore respectfully submitted that this case should be affirmed. Price Daniel A ttorn ey General o f Texas Joe R. Greenhill F irst A ssistant A ttorn ey General E. Jacobson Assistant A tto rn ey General A ttorn eys fo r Respondents. Appendix - 1 2 8 - APPENDIX FIRST SECTION The Background and Contemporaneous Construc tion of the Fourteenth Amendment Sustain the States in Their Power to Regulate Their Schools, Including the Right to Have Separate Equal Schools for White and Negro Students. I. CONGRESSIONAL A C T IO N : HISTORY OF STAT UTES R E LA T IN G TO SCHOOLS A N D CIVIL RIGHTS A N D OF TH E ADOPTION OF TH E FOURTEENTH A M E N D M E N T . A . The Period 1861-1865 Preceding the Proposal of the Fourteenth Amendment During Which Time Congress Established Separate Schools in the District of Columbia. The policy of the Congress from the beginning has been to provide separate schools for white and Negro children. After the abolition of slavery in the Dis trict in April, 1862, the Congress on May 20,1862, enacted a bill to provide instruction for Negro and white youth outside the cities in Washington Coun ty.1 A board of commissioners was empowered to provide schools for Negro children to be supported by a tax on Negro property. On May 21, 1862, a bill was enacted “providing for the education of col ored children in the cities of Washington and George- 1 12 Stat. 394 (1862) ; Statutes 1861-62, Ch. 77. All num bers in parentheses refer to page numbers in the Congres sional Globe through 1873 and to the Congressional. Record thereafter. All material in this portion of the Appendix is from those sources unless otherwise indicated. - 1 2 9 - town,” to be su p p orted b y a ta x on N e g ro p rop erty in the cities.2 On Ju ly 11, 1862, an A c t w as ap p roved “ re la tin g to schools fo r the edu cation o f co lored ch ildren in the District o f C olu m bia” w h ich created another board , known as the “ B oa rd o f T ru stees fo r C olored Schools,” to m an age the N e g ro schools and handle their fu n ds.3 Edw ard Ingle observed th a t these A c ts w ere in effectual because insu fficien t fu n d s w ere ra ised , and that it w as not u n til M arch , 1864, th a t the firs t Negro school w as opened in the D is tr ic t .4 On June 25, 1864, C on gress en acted a la w rep ea l ing the portions o f the A c ts o f M a y 20, 1862, sup porting N egro schools b y ta x a tion on N e g ro p ro p e rty only. It prov ided that a p rop ortion o f all school fu n d s raised in W ash in gton and G eorgetow n should be set aside fo r N egro schools in the p rop ortion th a t the number o f N eg ro ch ild ren bore to the n u m ber o f white ch ildren .5 B. The Period of the Adoption of the Fourteenth Amendment 1866-1868. On January 5 ,1 8 6 6 , S en ator T ru m b u ll in trod u ced the first supplem ental F reed m en ’ s B u reau B ill, p ro - 212 Stat. 407 (1862) ; Statutes 1861-62, Ch. 83. No public provision for the Education of Negro children of the District of Columbia was made prior to these acts. H. R. Exec. Doc. No. 315; 41st Cong., 2nd Sess. (1869-70). 312 Stat. 537 (1862) . Ingle, The Negro in the District of Columbia, Johns nopkms University, 11th Series (1893), p. 25. cc -̂ eP°rt °f Commissioner on Education 1871, p. 65; 13 Stat. 187 (1864). Appendix — 130— Appendix v id in g , a m on g oth er th ings, f o r certa in civ il rights f o r N eg roes “ such as the r ig h t to e n fo rce contracts, sue, g iv e evidence, in h erit, and to sell, lease, or con v e y re a lty .” 3 On the sam e d a y he in troduced what becam e the C iv il R ig h ts A c t o f 1866. Unlike the F reed m en ’ s B ill w h ich w a s app licab le on ly to the South , it w a s app licab le to all the States. 1. The First Supplemental Freedmen’s Bureau Bill T his b ill w as one o f the fo re ru n n e rs o f the 14th A m en d m en t, and is im p orta n t in exam in in g the in tended e ffect o f the A m en d m en t. I t prov ided certain sp ecific c iv il r ig h ts f o r the recen tly em ancipated Ne g roes . H ow ev er, m ost o f its p rov is ion s dealt with the g ov ern m en t o f the d e fea ted S ou th .6 7 Section 6 em pow ered a C om m ission er to p rov id e buildings for 6II James G. Blaine, Twenty Years in Congress (1874), pp. 209-210; Cong. Globe, 39th Cong., 1st Sess., p. 129; Flack, The Adoption of the Fourteenth Amendment, p. 12. The first Freedmen’s Bureau Bill was enacted in March 1865. It made no reference to education. 38th Cong., 2nd Sess., p. 96. Lee had surrendered in April of 1865. Lincoln, who was assassinated in April, 1865, had been succeeded as President by Andrew Johnson of Tennessee. Almost from the beginning, Johnson and the Congress were at odds on Reconstruction policy. The feud ended in an unsuccessful attempt to impeach Johnson. It will be remembered that all during this period, the Representatives and Senators from most of the Southern States were not allowed to take their seats in Congress. So of course the South had no voice in the passage of these acts. 7 39th Cong., 1st Sess., pp. 209, 314, 339, 362, 392, 415. The bill was debated in the Senate January 19-25, 1866. Appendix •131 asylums and schools f o r the freed m en .8 T h ere is nothing in the debates th a t in d ica ted that C on g re js intended these schools to be m ixed members, speaking a g a in st the bill schools.9 Sections 7 and 8 dea lt w ith sp ecific c iv il r ig h ts o f the freedm en. S ection 7 p rov id ed th a t i f , because o f any State or local law , custom , o r p re ju d ice “ a n y o f the civil righ ts o r im m u n ities b e lon g in g to w h ite persons, in clu d in g the r ig h t to m ake and e n fo rce con tracts, to sue, be p arties , and g iv e ev id en ce ; to in herit, purchase, lease, sell, hold and con v ey rea l and personal p roperty , and to have fu ll and equal benefit of all laws and proceed in gs f o r the se cu r ity o f person and estate, are re fu sed o r den ied to n egroes . . . on account o f race . . . it shall be the d u ty o f the P res ident o f the U nited States, th rou g h the C om m ission er, to extend m ilita ry p ro tection . . . over all cases affecting such persons so d iscr im in a ted a g a in st.” 10 Section 8 provided that i f any person subjected any Negro or other person, on account of race, “ to 8 hi at 395. It was provided that no contracts for such buildings should be let until congressional appropriation bad been made therefor. 9 Dawson of Pennsylvania, speaking more of the theories ot certain radical Republicans, indicated that they would UKe to force mixed schools. 39th Cong., 1st Sess., p. 541. OUSSeaU of Kentuckv lTvfm"TnpH tVia UnnaD +Tiaf -i-n nViovloa- fear that it m igh t be con stru ed — 132— the d ep r iv a tion o f a n y c iv il r ig h t secured to white persons, o r to a n y d iffe ren t p u n ish m en t . . he should be g u ilty o f a m isd em ean or .11 T he b ill passed the S enate J a n u a ry 2 5 ,1 8 6 6 ,12 and passed the H ouse w ith am endm ents not relevant here, on F e b ru a ry 6 , 1 86 6 .13 T h ere w a s som e discus sion o f S ection 6 w ith re fe ren ce to schools, but it had to do w ith p ro v id in g som e ty p e o f education for the N eg ro . R ep . D on n elly m ade it p la in th a t the Negro shou ld be educated b y N orth ern teachers so they w ou ld n ’ t be ed u ca ted to g lo r i fy R ob ert E . Lee and the S ou th ern tra d it io n .14 P resid en t Johnson vetoed the A c t on February 19, 1866 .15 T he b ill fa ile d to g e t th e necessary two- th ird s vote to ov err id e the v e to .16 A s w a s the case w ith the C iv il R igh ts Bill, there w ere m a n y m em bers o f C on gress w h o thought the A c t u n con stitu tion a l. F la ck says, “ T here seems to Appendix 11 39th Cong., 1st Sess., at 319. 12 Id. at 421. 13 Id. at 688. The Senate agreed to the House Amend ments and made an additional amendment on February 8, 1866 (p. 748). The House agreed to the Senate Amendment February 9, 1866 (p. 775). The bill was debated in the House from Jan. 26 through Feb. 2. (Id. at pp. 512, 538, 585, 618.) 14 Id. at 585. 15 Id. at 915. 16 Id. at 943, February 20, 1866; a similar bill was enacted over the President’s veto in July, 1866, after the resolution proposing the 14th amendment had been enacted. 14 Stat. 173 (1866) ; See Flack, The Adoption of the Fourteenth Amendment, pp. 18, 19. — 133— Appendix be little doubt but th a t it w as u n con stitu tion a l and that it could sca rce ly be ju s tified even as a w a r m eas ure.” 17 2. The Civil Rights 'Act of 1866 In in terpretin g the in ten t and scope o f the 14th Amendment, th is b ill, a n oth er fo re ru n n er , is p a rt ic ularly im portan t because its p rov is ion s had a defin ite bearing on the adoption and m ea n in g o f the first sec tion o f that am endm ent. On Jan u ary 2 9 ,1 8 6 6 , S en a tor T ru m b u ll exp la in ed the extent o f his C iv il R ig h ts A c t o f 1 8 6 6 : “ The r ig h t to m ake and en fo rce con tracts , to sue and be sued, to g iv e ev idence, to in h erit, p u r chase, lease, sell, hold , and con v ey rea l and p e r sonal p rop erty and to fu ll and equal ben efit to all law s and p roceed in g s f o r the se cu r ity o f person and p ro p e rty .” 18 The bill, in section one, defined citizenship in the United States: “ T hat afi persons b orn in the U n ited S tates and not su b ject to a n y fo r e ig n p ow er, ex clu d in g Indians n ot taxed , a re h ereb y decla red to be c it izens o f the U n ited S tates .” 19 F ade, The Adoption of the Fourteenth Amendment (1908), p. 14. Flack observed that “the measure was un- wise and inexpedient to say the least of it, for it retarded atner than aided reconstruction.” 18 39th Cong-., 1st Sess., pp. 476, 599. 1914 Stat. 27 (1866). — 134— It con tin u ed , as o r ig in a lly in trod u ced , w ith broad g en era l p rov is ion s as to c iv il r ig h t s : “ T h a t th ere shall be no d iscr im in ation in the c iv il r ig h ts o r im m u n ities a m on g the inhabit an ts o f a n y S tate o r T e r r ito r y o f the United S tates on a ccou n t o f ra ce , co lor , o r previous con d it ion o f s la v e ry ; b u t the in h abitan ts o f every ra ce a n d co lo r . . . shall h ave the sam e rights to m ake and en fo rce con tracts , to sue, be parties, and g iv e evidence , to in h erit, purchase, lease, sell, hold and con v ey rea l and personal prop erty , and to fu ll an d equal b en efit o f all laws and p roceed in g s f o r the se cu r ity o f person and p rop erty , and shall be su b je ct to like punish m ent, p a in s, an d pen a lties , and to none others, a n y law , statu tes, ord in an ce , regulation, or cu stom to the c o n tra ry n otw ith stan d in g .” 20 W h en th is b ill w a s b e fo re the H ouse on March 1, 1866, its flo o r lead er w a s R ep . Jam es F . Wilson of Iow a , C h a irm an o f the J u d ic ia ry Committee, to w h ich the b ill had been com m itted . H e explained the b roa d la n gu age o f the b ill, and assured the House th a t the b ill d id n ot r e fe r to schools and did not re qu ire m ix ed sch o o ls : “ T h is p a r t o f the b ill w ill p robably excite m ore op p osition than a n y other. . . . What do these term s m ea n ? D o th ey m ean that in all th in g s c iv il, socia l, p o lit ica l, all citizens, with ou t d istin ction o f ra ce o r co lor , shall be equal. By no means can they be so construed. . • • A°r Appendix 20 39th Cong., 1st Sess., pp. 474, 1117. - 1 3 5 - do they meaori that . . . their children shall attend the same schools. These are not civil rights or immunities.” 21 W ilson th ere fore m oved that the b ill be recom mitted to com m ittee .22 Rep. B ingham o f O hio also th ou gh t the lan gu age of the bill w as too b roa d .23 H e m oved to am end the motion to recom m it the b ill to add in stru ction s to the com m ittee: “ to strike ou t o f the firs t section the w o rd s ‘and there shall be no d iscr im in a tion in the c iv il rights o r im m u n ities a m on g citizen s o f the U nited S tates . . . on a ccou n t o f ra ce , co lor, or previous con d ition o f s la v ery . . .’ ” 2i 21 39th Cong., 1st Sess., p. 1117. An illustration of the op position to the broad language was shown in the speech of Rep. Rogers of New Jersey. He pointed out that Pennsyl vania had separate schools for white and Negro children. He opposed Federal intervention into the State’s affairs. He characterized the language of the bill as “broad and dangerous.” 39th Cong., 1st Sess., p. 1121, March 1, 1866. Rep. Thayer of Pennsylvania was of the same view as Wil son on the limited extent of the bill: that the same general words of the bill were limited to the specific rights men tioned therein. (Id. at 1151.) Rep. Kerr of Indiana was alarmed at the possibility that the bill might force the mix- ln£ °f whites and Negroes in public schools and churches U«. at 1268). Senator Cowan of Pennsylvania said his State provided separate schools for the races and that it would be monstrous to have his school officials tried as crim inals. (id. at 500.) 22 Id. at 1115, 1162. 23 39th Cong., 1st Sess., p. 1291. March 9, 1866. j , ,. • â , 1271-1272. His amendment also proposed the in +i,10T?°n , in'iminnl penalties and inserted civil liability ® , ederal Courts. The amendment was defeated, but wp , was recommitted to committee. His suggestions were adopted by the committee. Appendix - 1 3 6 - In an sw er to B in gh a m and o th er representatives w h o ob jected to “ the g lit te r in g gen era lit ie s” o f the b ill, W ilson sa id th a t h is b ill d id n ot “ invade the S tates to en fo rce eq u a lity o f r ig h ts in respect to th ose th in gs w h ich p ro p e r ly and r ig h t fu lly depend on S tate reg u la tion s and la w s .” R e fe r r in g to Bing ham , W ilson said , “ H e k n ow s, as e v ery m an k n ow s, that this bill r e fe r s to th ose r ig h ts w h ich b e lon g to men as citizen s o f the U n ited S tates an d none other; !. and when he talks of setting ̂ aside school laws . . . of the States b y the b ill n ow under con s id era tion , he steps beyon d w h a t he m ust know to be the ru le o f con stru ction w hich must a p p ly h ere .” 25 A ft e r the d iscu ssion , the b ill w a s recom m itted to com m ittee on M a rch 9, 1866 .26 O n M a rch 13, 1866 , W ilso n b rou g h t the Civil R ig h ts B ill ou t o f com m ittee . I t h ad amended the b ill as B in gh a m h ad s u g g e s te d : i. e., i t took out the b roa d , g en era l la n g u a g e as to c iv il r igh ts and named certa in sp ecific r ig h ts . S chools w ere n ot mentioned. T he C om m ittee A m en d m en t r e a d : “ S trik e ou t . . . the fo llo w in g w ords: “ ‘W ith o u t d istin ction o f co lo r ,_ and there shall be no d iscr im in a tion in civ il rights or im- 25 39th Cong., 1st Sess., p. 1294. 26 Id. at 1296. Appendix — 137— m unities a m on g citizen s o f the U n ited S tates . . . on a ccou n t o f ra ce , co lor , o r p rev iou s con dition o f s la v ery .’ “ So that the section w ill read as fo l lo w s : “ ‘T hat all p erson s born in the U n ited S tates and not su b ject to a n y fo r e ig n P ow er, exclu d ing Ind ians n ot taxed , a re h ereby decla red to be citizens o f the U n ited S ta tes ; and such c it izens o f every ra ce and co lor , w ith ou t re g a rd to any p rev iou s con d ition o f s la v ery o r in vo lu n tary servitude, ex cep t as a pun ish m en t fo r cr im e w hereof the p a r ty shall have been d u ly con victed, shall have the sam e r ig h t to m ake and enforce con tracts , to sue, be parties , and g iv e evidence, to in h erit, pu rch ase, lease, sell, hold, and convey rea l and person a l p rop erty , and to full and equal benefit o f all la w s and proceed ings fo r the se cu r ity o f person and p ro p e rty as is en joyed b y w h ite citizens, and shall be su b ject to like punishm ent, p a in s, and penalties, and to none other, a n y law , statu te, ord in an ce , reg u la tion, or custom to the c o n tra ry n otw ith stan d ing.’ ” W ilson explained the com m ittee ’s a c t io n : . . the am endm ent . . . p rop oses to strik e out the genera l term s re la tin g to c iv il r igh ts . I do not th ink it m a ter ia lly changes the bill. Appendix . “ • • • Som e m em bers o f the H ou se th ou gh t, m the general w ord s o f the firs t section re la t ing to civ il r igh ts, it m ig h t be held b y the cou rts =T 39th Cong., 1st Sess., p. 1366. — 138— that the r ig h t o f su ffra g e w a s included in those r igh ts . T o obv ia te th a t d ifficu lty and the diffi culty growing out of any other construction be yond the specific rights named in the section, ou r am endm ent strik es ou t all o f those general term s an d leaves the b ill w ith the rights speci fied in the section .” 28 W ith a fe w oth er ch an ges im m ateria l here, the bill passed the H ou se M a rch 13, 1866 .29 W h en the bill w as re tu rn ed to the Senate, it w a s re ferred to the J u d ic ia ry C om m ittee. On M a rch 15, 1866, Senator T ru m b u ll rep orted the b ill to the S enate with the com m ittee ’ s recom m en d ation th a t the bill be passed as am ended in the H ouse. T he S enate adopted the H ou se am endm ents w ith ou t debate on M arch 15, 1 86 6 .30 P res id en t Johnson retu rn ed the b ill to Congress w ith a veto a ccom p an ied b y a lon g veto message on M a rch 27, 1866. It w a s passed ov er the veto in the S enate on A p r il 6, 1866, and in the H ouse on April 9, 1866 .31 T h e b ill thus becam e la w on April 9, 1866 .32 T h a t C on gress d id n ot in te rp re t th is A ct as pro h ib it in g sep ara te equal schools f o r w hites and Ne g ro e s is ev iden ced b y the fa c t th a t separate schools f o r ch ild ren o f the tw o ra ces con tin u ed to be main ta in ed b y C on gress in the D is tr ic t o f Colum bia after its e ffective date. (T h e N e w Y o r k C ourt in 1869 28 39th Cong., 1st Sess., p. 1367. 29 Id. at 1367. 30 Id. at 1413-1416. 31 Id. at 1679, 1808, 1861. 3214 Stat. 27 (1866). Appendix — 139— Appendix held that th is A c t d id n ot in va lid a te separate schools for white and N eg ro students in B u ffa lo , N . Y . Dal las v. Fosdick, 40 H ow . P ra c . 249 . T he In d ia n a Court in 1874 ru led to the sam e effect. Cory v. Car ter, 48 Ind. 3 2 7 .) There w ere m an y in the C ongress w ho believed the ■ Civil R ights B ill o f 1866 to be u n con stitu tion a l.33 Mr. B ingham o f O hio, an an ti-S ou th ern leader and a member o f the R econ stru ction C om m ittee, thought the bill u ncon stitu tiona l because, a m on g other th ings, it invaded the r igh ts reserved to the S tates.34 H e therefore advocated the adoption o f an am endm ent to the Federal C onstitu tion . 3. The Congressional Resolution Proposing the Fourteenth Amendment Many R epublicans, e ith er because th ey doubted the constitu tionality o f the C iv il R ig h ts B ill o r be cause they fea red th a t it m ig h t be repea led b y som e subsequent C ongress, w e re desirou s o f w r it in g som e guarantee o f this n a tu re in to the C on stitu tion .35 T he result w as their p rop osa l o f the F ou rteen th A m en d ment. Because o f the d isagreem en t betw een C on gress and P resident Johnson (w h o w a s ca rry in g f o r ward L incoln ’ s p lan o f re con stru ction ) th ere had w-3 n' FePres.entatives Saulsbury of Delaware, Van inkle of West Virginia, Cowan of Pennsylvania, Reverdy o nson of Maryland, Davis of Kentucky, Guthrie of Ken- uoAi a ̂ ^ee Flack, op. cit. supra, pp. 22-25. I! 39^ Cong., 1st Sess., p. 1291. Kendrick, The Journal of the Joint Committee of Fif teen on Reconstruction (1914) p. 215. — 140— been established “ T he J o in t (C on g ress ion a l) Com m ittee o f F ifte e n on R econ stru ction ,” in which nu m erou s recon stru ction m a tters w ere decided upon, in c lu d in g the question o f the (n o n ) representation of the S ou th ern S tates in the C on gress .86 So the res o lu tion p rop os in g the am en dm en t w a s first consid ered in and a p p rov ed b y th is po licy -m ak in g com m ittee .87 D u r in g the cou rse o f the deliberations the com m ittee re je cted a reso lu tion w h ich contained a p rov is ion that “ . . . a ll p rov is ion s in the Constitution or la w s o f a n y S tate, w h ereb y a n y distinction is m ade in p o lit ica l o r c iv il r ig h ts o r privileges, on a ccou n t o f ra ce , creed o r co lor , shall be in op era tiv e and v o id .” 88 A ft e r exten ded d e libera tion a resolution was fin a lly a g reed u p on b y a vote o f 7 to 6 on February 3, 1866, w h ich p rov id ed th a t “ T he C on gress shall have p ow er to make all la w s w h ich shall be n ecessa ry and proper to 36 The “Committee of Fifteen,” established at the insist ence of Mr. Thaddeus Stevens and other extreme anti- Southerners, was composed of 12 Republicans: Senators Fessenden of Maine, Grimes of Iowa, Williams of Oregon, Harris of New York, and Howard of Michigan, and Rep resentatives Stevens of Pennsylvania, Bingham of Ohio, Conkling of New York, Boutwell of Massachusetts ,Wash- burne of Illinois, Morrill of Vermont, and Blow of Missouri. The Democrats were Senator Johnson of Maryland and Rep resentatives Grider of Kentucky and Rogers of New Jersey For an excellent history of the background and personnel of the Committee see Kendrick, op. cit., supra, at 133-197. 37 Id. at 46 et seq. 38 Id. at 50. Appendix Appendix — 141— secure to the citizen s o f each sta te all p r iv i leges and im m u n ities o f citizen s in the severa l states; and to all person s in the severa l states equal p rotection in th e r ig h ts o f life , lib e r ty and p rop erty .” On F ebru ary 13, 1866, th is reso lu tion w as in tro duced in the S enate b y S en a tor F essenden ,39 and in the House by M r. B in g h a m .40 Mr. B ingham a rg u ed th a t the p rop osed reso lu tion simply w ould g ra n t C on gress the a u th or ity to en force existing F ed era l S tatu tes (in c lu d in g the 1866 Civil R ights A c t ) and the r ig h ts a lrea d y g u a ra n teed in the F edera l C on stitu tion .41 T h is is in a ccord with the v iew he had p re v io u s ly expressed th a t he doubted the con stitu tion a lity o f the C iv il R ig h ts B ill. Rep. Rogers, a D em ocra t o f N e w Jersey , w h o w a s a member o f the J o in t C om m ittee o f F ifte e n , a rg u in g against the resolu tion , sta ted th a t C on gress w ou ld have the pow er, in the fu tu re , to leg is la te w ith re gard to schools.42 T he ten or o f som e oth er speeches was the same. Those in fa v o r o f the am endm ent a r gued that it m erely g a v e C on gress p o w e r to e n fo rce existing constitu tional and s ta tu to ry p rov is ion s, and 9 39th Cong., 1st Sess., p. 806. No action was immedi ately taken by the Senate. 40 Id. at 813. Hof ^ ®ess., P- 1033. He brought the matter -I16 House on Feb. 26, 1866, and after three days of ueDate it was deferred until April. Id. at 1033, 1095. 2 39th Cong., 1st Sess., Appendix, p. 133. — 142— Appendix those opposed a rg u in g th a t its g ra n t o f legislative p o w e r to C on gress w a s too b roa d .43 T h e ir fir s t p rop osa l h a v in g fa ile d , the Joint Com m ittee a ttem p ted to d r a ft one w h ich w ould secure the a p p rov a l o f C ongress. A f t e r debating from A p r il 21, 1866, the com m ittee on A p r il 28 decided u pon a reso lu tion , con ta in in g in S ection 1 the pro v is ion : “ N o S tate shall m ake o r e n fo rce any law w h ich shall a b r id g e the p r iv ileg es o r immuni ties o f citizen s o f the U n ited S ta tes ; nor shall a n y sta te d ep r iv e a n y person o f life , liberty, or p ro p e r ty w ith ou t due process o f la w ; nor deny to a n y person w ith in its ju r isd ic t io n the equal p ro te c tion o f the la w s .” 44 N o p rov is ion w a s o ffered in the m eetings of the J o in t C om m ittee as rep orted in the Journal which w ou ld in d ica te th a t it w a s the in ten t o f the Com m ittee to en fo rce m ix ed ed u ca tion a l fa cilitie s .45 Along w ith the p rop osed am endm ent, the J o in t Committee on R econ stru ction p rep ared f o r C ongress a majority and a m in o r ity com m ittee rep ort, n eith er o f which m ade a n y re fe re n ce to schools o r ind icated that the 43 39th C ong., 1st Sess., pp. 1054-1067, 1083-1095. Mr. H ig b y (C a l.) 1054-1056 ; M r. R andall (P a .) 1056; Mr. K elley (P a .) 1057-1063 ; M r. H ale (N . Y .) 1063-1066; Mr. P r ice (Io w a ) 1066-1067 ; M r. D avis (N . Y .) 1083-1087; Mr. W ood b rid g e (V t .) 1087-1088 ; M r. B ingham (O hio) 1088- 109 4 ; M r. C on klin g (N . Y .) 1094 -1095 ; M r. Hotchkiss («• Y .) 1095. . , 44 K endrick , T he Journal o f the Joint Committee of rtj- teen on R econstruction (1 9 1 4 ), p . 106. 45 Id. at 37-129. — 143— proposed resolution was to cover anything more than the civil rights already discussed and embodied in the Act of 1866.46 The report for the majority47 after reciting a history of the measures of reconstruction up to the time of the report, states that instead of being mere chattels, the former slaves had become free men and citizens. The report continues with regard to the freedmen stating that “It was impossible to abandon them, without securing them their rights as free men and cit izens. . . . Hence it became important to in quire what could be done to secure their rights, civil and political. It was evident to your com mittee that adequate 'security could only be founcHn appropriate constitutional provisions. Appendix The majority then reviews the evidence on the state of affairs in the former Confederate States, and on the basis of this evidence the opinion of the majority of the committee was that “Congress would not be justified in admitting such communities to a participation in the gov ernment of the country without first providing w cP ^ ^ o r ts ° f the Com m ittees o f the H ouse, 39th Cong., 1st Sess., V I-X X I, 1-13. by Fessenden, Grimes, Harris, Howard, Wil is t t ^ evens’ Morrill, Bingham, Conkling, and Boutwell. 1st S e r a X i n ° f tke Com m ittees ° f the House, 39th Cong., — 144— Appendix such constitutional or other guarantees as will tend to secure the civil rights of all citizens of the republic . . .”49 In summary the conclusions of the majority were: “The conclusion of your committee therefore is, that the so-called Confederate States are not, at present, entitled to representation in the Con gress of the United States; that, before allow ing such representation, adequate security for future peace and safety should be required; that this can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic, shall place representation on an equi table basis, shall fix a stigma upon treason, and protect the loyal people against future claims for the expenses incurred in support of rebellion and for manumitted slaves, together with an express grant of power in Congress to enforce those provisions. To this end they offer a joint resolution for amending the Constitution of the United States, and the two several bills de signed to carry the same into effect, before re ferred to.”50 The minority report51 is devoted mainly to the legal proposition that the States which had seceded had never actually left the Union and were, there fore, entitled to immediate representation in Con gress. Kegarding representation the report stated. “What danger to the government, then, _can possibly arise from southern representation. 49II R eports o f the Com m ittees o f the House, 39th Cong., 1st Sess., X V III. 50II Id. at X X I . 51 Signed by Reverdy Johnson, Rogers, and Grider. - 1 4 5 - Are the present senators and representatives fearful of themselves? Are they apprehensive that they might be led to the destruction of our institutions by the persuasion or any other in fluence of southern members? . . . Whatever effect on mere party success in the future such a representation may have we shall not stop to inquire.”52 Speaking of the plan of representation and the fact that the Negro was not granted suffrage, it was stated: “That would be obnoxious to most of the northern and western states, so much so that their consent was not anticipated; but as the plan adopted, because of the limited number of negroes in such states, will have no effect on their representation, it is thought it may be adopted, while in the southern states it will ma terially lessen their number . . .”53 This new resolution was introduced in both Houses of Congress on April 30.54 Mr. Thaddeus Stevens opened debate in the House on May 8 and in reply to the contention that the Civil Rights of 1866 secured the same things as were placed in Section 1 of the resolution, he said that the bill was repealable and that repeal should be placed beyond the power of Con- 52II Reports o f the Com m ittees o f the House, 39th Cong., 1st Sess., p. 7. 53 Id. at 9. 54 39th Cong., 1st Sess., pp. 2265, 2286. Appendix — 146— gress.55 Mr. Finck of Ohio stated that if the first section were necessary then the Civil Rights Bill was unconstitutional.35 36 Mr. Garfield of Ohio pointed out in answer to Mr. Finck that the reason for placing the provisions of the Civil Rights Bill in the Constitution was so that if the Democrats ever returned to power the bill could not be repealed.57 Mr. Thayer of Pennsylvania concurred in the views of the previous speakers as to the effect of Section l .68 Mr. Boyer of Pennsyl vania, a Democrat, also agreed that Section 1 only incorporated the Civil Rights Bill in the Constitu tion.59 Mr. Broomall of Pennsylvania spoke the next day, May 9, and reiterated the view that Section 1 of the amendment incorporated the Civil Rights Bill in the Constitution.60 Mr. Henry J. Raymond of New York, a conservative or Johnson Republican, who had voted against the Civil Rights Bill because he doubted its constitutionality, stated that Section 1 of the amendment had been before Congress in the Civil Rights Bill.61 Similarly, Mr. Eldridge, of Wisconsin, and Mr. Eliot, of Massachusetts, expressed the views of the previous speakers on Section l .62 On the last day of debate Mr. Rogers of New Jersey declared that the amendment was no more 35 39th Cong., 1st Sess., p. 2459. 56 Id. at 2461. 6T Id. at 2462. 68 Id. at 2464. 59 Id. at 2465. 60 Id. at 2498. 61 Id., at 2501. 82 Id. at 2506, 2511. Appendix — 147— Appendix than “an attempt to embody in the Constitution of the United States that outrageous and miserable Civil Rights Bill.”63 Mr. Bingham, who had opposed the Civil Rights Bill, spoke in favor of the amend ment, repeating that it was necessary in order for Congress to protect the people from oppressive State laws.64 Mr. Stevens closed the debate; the previous question was moved and seconded; and, the joint res olution passed the House, 128 yeas, 37 nays.65 It is thus apparent that nearly all of the members of the House agreed that Section 1 of the proposed amend ment incorporated the provisions of the Civil Rights Bill into the Constitution. The Senate started consideration of the joint res olution on May 23.66 Senator Howard of Michigan substituted for Senator Fessenden in presenting the measure and made the opening address. With re gard to the meaning of the first section he discussed the rights of “citizens of the United States” and the rights in the first eight amendments. He stated: “• • . The great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guar antees.”67 (Those guarantees he had mentioned earlier, none of which included mixed schools, although separate schools were being main- 39th Cong., 1st Sess., p. 2537. 64 Id. at 2541-2544. 65 Id. at 2544-2545. 66 Id. at 2765. (1947) ^ 2^ 6' Adamson v. California, 332 U.S. 46 — 148— tained both by Congress and the great majority of the States then represented in Congress.) Mr. Wade proposed an amendment which would have defined “citizens of the United States,” his pur pose being to assure protection to the Negro in the event the Civil Rights Bill was held unconstitu tional.88 No action was taken by the Senate on the joint resolution from May 24 to May 29, this period being devoted to a caucus of the Republican party. Upon returning to consideration of the resolution on May 29, Senator Howard offered a series of amend ments, the first of which added the definition of cit izenship which is now the first sentence of the Four teenth Amendment.69 Senator Doolittle charged that the first section was intended to validate the Civil Rights Bill and Senator Howard replied that a pur pose of the committee was to put the Civil Rights Bill beyond the legislative power.70 The final debate started on June 4 with Senator Hendricks remarking about the caucus of the Repub lican majority.71 Senator Poland of Vermont stated that Congress by passing the Civil Rights Bill had indicated its feeling toward certain legislation in some Southern States and that this amendment would remove any doubt as to the power of Congress to provide remedial legislation in this regard.72 Sen ator Howe of Wisconsin mentioned several rights and Appendix 88 39th Cong., 1st Sess., p. 2768. 69 Id. at 2869. 70 Id. at 2896. 71 Id. at 2938. 72 Id. at 2961-2964. - 1 4 9 - privileges of citizens and cited as an example of law impossible under the amendment, a Florida statute which provided that in addition to being taxed to support the white schools only the Negroes were taxed to support their own schools.73 Senator John B. Henderson, of Missouri, indi cated by the tenor of his speech that he believed that Section 1 was an attempt to place the Civil Rights Act in the Constitution.74 The resolution passed the Senate June 8, 1866, 33 yeas, 11 nays.75 Summarizing, the legislative intent indicated by the Senate in debate revealed that the understanding of some Senators was that Section 1 incorporated the Civil Rights Bill in the Constitution, and even those who gave the amendment a broader scope thought that it gave Congress power to legislate against discriminatory State legislation. No Sen ator indicated that it was effective to abolish sep arate schools; indeed, this was not even hinted. The House concurred in the Senate amendments to the joint resolution on June 13, 1866.76 after sev eral short speeches, including one by Mr. Rogers in which he objected to the Constitution being amended as a result of a party caucus. That the people shared in the belief of the majority of Congressmen as to the effect of Section 1 of the proposed amendment is indicated by a review of the newspapers and political speeches made during the 73 39th Cong., 1st Sess., Appendix 217. 39th Cong., 1st Sess., pp. 3031-3036. 75 Id. at 3042. 76 Id. at 3148. Appendix - 1 5 0 - period of the adoption of the amendment. The coun try understood that the Civil Rights Bill was being made a part of the Constitution. Those who gave Section 1 a greater effect thought that it, along with Section 5, vested great legislative powers in the Con gress. There was no indication that the amendment would enforce mixed schools.” The contemporaneous construction of the amendment by the States, which manifests that same construction, is considered in another portion of this Appendix.77 78 The intent manifested by the Congress, the people, and the States with regard to the Fourteenth Amend ment was for the most part that Section 1 made the Civil Rights Bill of 1866 a part of the Constitution. An examination of this Civil Rights Bill reveals, as has been shown in this Appendix, that it covered certain specifically named rights which did not in clude mixed schools. Actually, it had been amended by its House sponsor, Mr. Wilson of Iowa, to make certain that it did not relate to or require mixed schools. See pages 133 to 139, supra. Taking the broadest interpretation given the resolution propos ing the Fourteenth Amendment (that in addition to putting the Civil Rights Bill beyond legislative power it made the Bill of Rights applicable to the States), separate schools would still not be made unlawful. Hence, the manifested intent in the adoption of the Fourteenth Amendment was not to deprive the 77 Flack, The Adoption of the Fourteenth Amendment (1908), pp. 140-160; Fairman, Does the Fourteenth Amend ment Incorporate the Bill of Rights? The Original Under standing, 2 Stanford Law Rev. 5 (1949). 78 See page 194, infra. Appendix - 1 5 1 - States of the power to regulate their schools or to require them to have mixed schools. Any other in tent would have appeared directly in the Amend ment, Congressional debates, or public discussions, because separate schools were then being maintained by the States and the Congress. 4. Acts of Congress Relating to Separate Schools in the District of Columbia During the consideration of the resolution propos ing the Fourteenth Amendment (February through June, 1866) and immediately thereafter, the Con gress enacted legislation furthering the separate schools it had previously established in the District of Columbia for white and Negro students. On May 21, 1866, during the time that the Con gress was debating the Fourteenth Amendment, the Senate passed a bill to donate real estate in the Dis trict of Columbia for Negro schools.79 The Act, which became effective July 28, 1866, provided that . “The Commissioner of public buildings . . . is hereby authorized and required to grant . . . to the trustees of colored schools for the cities of Washington and Georgetown . . . for the sole use of schools for colored children in said District of Columbia . . . lots 1, 2, and 18 in square 985 in . . . Washington, said lots hav ing been designated and set apart by the Secre tary of the Interior to be used for colored schools. . . .”80 , ’* p th Cong., 1st Sess., p. 2719. The bill (S. No. 247) ad been introduced on April 4 (id. at 1753), and reported sfl Committee on May 2 (id., at 2331). 8014 Stat. 343 (1866). Appendix — 152— Similarly between April, 1866, and July 23, 1866, the Congress considered and enacted a bill changing the tax support for separate Negro schools in the District of Columbia.81 It amended the Act of June 25, 1864, so as to require the cities of Washington and Georgetown “to pay over to the trustees of colored schools of said cities such a proportionate part of all monies received or expended for school or edu cational purposes . . . as the colored children . . . in the respective cities bear to the whole number of children, white and colored. . . .” On March 16, 1867, Senator Sumner of Massa chusetts proposed an amendment to a reconstruction bill making it a prerequisite to seating in Congress of Southern Congressmen that: “The Constitution shall require the Legisla ture to establish and sustain a system of public schools open to all, without distinction of race or color.” The amendment was defeated “to his bitter dis appointment.”82 Again on July 11, 1867, Sumner unsuccessfully attempted to amend a Reconstruction Act to require mixed schools.83 81 This bill, S. No. 246, was introduced April 4, passed the Senate May 21, passed the House July 18, and was ap proved by the President July 23, 1866. 39th Cong., 1st Sess., pp. 1753, 2719, 3906. 14 Stat. 216 (1866). 82 Storey, Charles Sumner, American Statesmen, Vol. oe, p. 334; 40th Cong., 1st Sess., p. 170. ss W orks o f Charles Sum ner, Vol. 11, pp. 397-401; M em oirs and L etters o f Charles Sum ner (1893), pp- 31 * 317. Appendix — 153— Appendix C. The Period Immediately Following the Adop tion of the Fourteenth Amendment in 1868. 1. Acts of Congress Relating to Separate Schools in the District of Columbia Soon after the adoption by the States of the Four teenth Amendment the Congress enacted a bill trans ferring the duties of the Negro trustees of the Negro schools of Washington and Georgetown, D. C., to the (white) trustees of the public schools of those cities. It left the schools separate for white and Negro students. The bill passed the Senate July 10, 1868, and the House on February 5, 1869.84 Its passage greatly disturbed the Negro citizens who wanted control of their schools left with Negro trustees. Sev eral Negro meetings were held and resolutions adopted by them condemning the bill for removing the control of the Negro schools from the Negro trus tees. So on February 13, 1869, President Johnson vetoed the bill because he said no good reason was shown why the Negro board should be abolished. The veto was not overridden.85 In February, 1871, the question of whether mixed or separate schools would be maintained in the Dis trict of Columbia was again thoroughly discussed. Qio fot}l TCong-’ 2nd Sess., p. 3900; 40th Cong., 3rd Sess., p. 918 (S. No. 609). 40th Cong., 3rd Sess., p. 1164; Special Report of Com- 2?cs:‘??e4r °f Education 1871, p. 260; H. R. Exec. Doc. No. iW * 2nd Sess- G869-1870) ; Ingle, The Negro (si, Thstnct of Columbia, Johns Hopkins University studies, llth Series, p. 28 (1893). - 1 5 4 - Senate Bill 1244, to reorganize the school system of the District, was proposed. Ingle summarized the move in this way: “It was at this time . . . that the question of mixed schools was incontinently agitated, cul minating in a debate in Congress in . . . 1871, in which the effort was unsuccessfully made to remove all restrictions on account of color from all the public schools . . .”88 The Committee on the District of Columbia had amended Section 6 of the bill to provide that “No distinction on account of race, color, or previous condition of servitude shall be made in the admission of pupils to any of the schools . . . or in the mode of education or treatment of pupils in the schools.”86 87 Senator Patterson of New Hampshire moved to strike out the above words. He thought mixed schools would destroy the public schools of the city. He pointed out that “the Law of the District of Columbia as it now stands enforces a separation of whites and blacks in the schools.” He felt that to mix the common schools would greatly injure Negro education because white withdrawal from the schools would cause a loss of support for public schools. “This bill (with the clause omitted) is precisely like the law as it stands in our Northern States . . • 0-t/ 86 Ingle, The Negro in the District of Columbia, Johns Hopkins University Studies, 11th Series, p. 29 (1893). 87 41st Cong., 3rd Sess., pp. 1053-4. Appendix — 155— simply leaves it to the board of education to deter mine for themselves whether they will mix the whites and blacks or have separate schools. . . .”88 Senator Thurman of Ohio said the common schools were having enough difficulties without saddling the system with a compulsory mixing of the races. He thought the Government should not force sociolog ical ideas on people; that communities should be left to choose separate or mixed schools for themselves.89 Senator Tipton of Nebraska said that in his com munity there were only two or three Negro students; they were taken in and separated within the school building. But if there had been sufficient Negroes, separate schools would have been established.90 Senator Revels, a Negro Republican of Mis sissippi, Senator Sawyer of South Carolina, and Senator Wilson of Massachusetts advocated mixed schools.91 Senator Hill of Georgia moved to amend Patter son’s amendment to read that no distinction should be made in providing the m eans or m ode of education of white and Negro pupils. The bill did not pass, and the schools of the Dis trict remained as they had been from the beginning, with separate schools for white and Negro students. 88 41st Cong., 3rd Sess., pp. 1054-1057. 89 Id. at 1057. 90 Id. at 1059. 91 Id., at 1059-1061. Appendix — 156— 2. The F irs t and Second E n forcem en t Acts, 1870 and 1871 On May 30,1870, “The Enforcement Act of 1870” was enacted. It dealt with the right of the Negro to vote and to the protection of that right. It also re enacted in Section 18 the Civil Rights Act of 1866. It added in Section 17 that if different punishment were administered to any person because of race, it would constitute a misdemeanor.92 It is significant to note that after the adoption of the Fourteenth Amendment, Congress did not enlarge on the rights enumerated in the Civil Rights Act of 1866. It simply reenacted that Act. On February 28, 1871, the Second Enforcement Act was passed.93 It dealt wholly with elections and voting rights. On October 24, 1871, a letter of Charles Sumner addressed to a national Negro convention in Colum bia, S. C., was read there. In it Sumner recognized Appendix 9216 Stat. 140 (1870) ; 41st Cong., 2nd Sess., p. 3480; McPherson, Political History of the U. S. (2d ed. 1875), P- 546. The first 11 sections dealt with Negro suffrage. Other sections dealt with penalties for interfering with the voting. Sections 19-23 dealt with elections. See Fleming, Docu mentary History of Reconstruction, Vol. II, p. 102. During this period, also, Senator Sumner introduced several “Sup plementary Civil Rights Bills” ; e„ g., S. R. 916, May 13, 1870; Jan. 20, 1871, reported adversely by Committee. 41st Cong., 3rd Sess., pp. 619, 1263; March 9, 1871, 42nd Cong., 1st Sess., p. 21. They were not enacted. 93 41st Cong., 3rd Sess., p. 45, amending the First En forcement Act of May 31, 1870; discussed Annual Cyclo pedia 1871, pp. 148, 153. — 157— and said that mixed schools were not required and that the Civil Rights Act needed amendment in that regard. The letter read in part: The right to vote will have new security when your equal right in public conveyances, hotels, and common schools is at last established; but here you must insist for yourselves by speech, petition, and by vote. Help yourselves, and others will help you also. The Civil Rights law needs a supplement to cover such cases. This defect has been apparent from the begin- ning; and, for a long time I have striven to re move it.”94 Appendix In January, 1872, Sumner again urged his civil rights bill, saying to the Senate that: “Without the amendment the original law is imperfect.”95 3. The Unsuccessful Attempt to Enact Forced Mixed Schools as Part of a Civil Rights Amend ment to The General Amnesty Bill. In December, 1871 and in 1872 a sustained attempt was made to enact a civil rights bill, including a provision for mixed schools, by amendment to an amnesty bill removing legal and political disabil ities imposed by the third section of the Fourteenth mendment. The amnesty bill required a two-thirds majority to pass while the civil rights bill, by itself, Required on^ a simple majority. Sumner was suc- l f 4ppni752-753Cl°Pe îa 1871 (Appleton & Co- 1872)> Vol. 5 42nd Cong., 2nd Sess., p. 383, January 15, 1872. — 158— cessful on two occasions in getting his civil rights bill adopted as an amendment to the amnesty bill in the Senate. But the amnesty bill, on which the civil rights bill then depended, failed to get two-thirds majority and failed to pass the Senate as thus amended. Finally, the Sumner civil rights bill, as a separate measure, was amended by deleting the reference to schools and churches and was passed by the Senate. The amnesty bill then passed. But the Sumners bill was not passed by the House. A brief reference to the debates will emphasize that the matter of mixed schools was thoroughly dis cussed and that a majority of the Congress recog nized that mixed schools were not required by the Fourteenth Amendment, and that the majority of Congress did not favor Congressional action which would attempt to abolish separate schools. On December 20, 1871, the Senate took up the Amnesty bill. Sumner moved to amend it with his Civil Rights Bill which provided: “That all citizens . . . without distinction of race . . . are entitled to the equal and im partial enjoyment of accommodations, advan tages, facilities or privileges furnished by com mon carriers . . . innkeepers . . . theaters . . . common schools . . . church organiza tions . . . cemetery associations . . . and this right shall not be denied or abridged on any pretence of race . . .” It further provided that wherever the word “white” appeared in a statute with reference to race, Appendix — 159— Appendix the statute was thereby repealed.06 This amend ment was defeated in the Senate 29 to 30. On January 15, 1872, the amnesty bill was again brought up in the Senate and Sumner again offered his bill as an amendment.07 He spoke vigorously for his amendment including arguments in favor of compulsory mixed schools.98 Vickers of Maryland and others thought the civil rights bill unconstitu tional." Frelinghuysen of New Jersey moved to amend by providing “that churches, schools, cem eteries . . . exclusively for either the white or col ored race, should not be taken from the control of those establishing them, but shall remain devoted to their use.”100 Sumner accepted the amendment.101 There were many speeches for the Sumner amend ment.102 and many against it.103 Much of the opposi- 96 Annual Cyclopedia 1872 (Appleton), pp. 143-144. See also 42nd Cong., 2nd Sess., p. 381. Sumner was reminded tnat Congress could not repeal a State law. 7 42nd Cong., 2nd Sess., p. 381. sJd. at 381-384; 434; 726; 822. 94 386! others of the same view included Thurman q<m,7<0 P' ’ Morrill of Maine, who had been in the Wii^™gr/eSS Jr?>\730 and APPendix< P- 1) ; Carpenter of Wisconsin (p 759) ; D avis of K entucky , who had also been Snmkhum C??gress (P- 763)- This Court declared the bdl ^hlck was enacted in 1875 (the references to CiviJ Marches having been deleted) unconstitutional. J TRJ 9hts Cases’ 109 U.S. 3 (1883).Id. at 435, 487. io' l 2nd C°ng-> 2nd Sess., P. 453. Indian A SK er # S°uth Carolina <P- 488) i Morton of of Texa« P‘ AAV TT?Tagan’ a Reconstruction Republican io3 p u-n8 ̂ ’ ^ dson °f Massachusetts (p. 819). pendix 9eorP a (P- 492) ; Morrill of Maine (ap- Kentucky (p ’912)V1S °f Kentucky <P- 763) 5 Stevenson of — 160— tion to the bill was centered on the mixed school pro vision. For example, Saulsbury of Delaware thought it would definitely injure the common schools.10 * * 104 Thurman of Ohio didn’t think Congress could require mixed schools.105 Ferry of Connecticut said, “With regard to . . . schools and churches, I clearly am of the opinion that the Federal Gov ernment ought not to interfere.”106 His motion to strike out the reference to churches was agreed to.107 On the question of accepting the Sumner amend ment to the amnesty bill, the vote in the Senate was tied and Vice President Colfax voted in favor of the amendment.108 But the amnesty bill as thus amended failed to pass on February 9, 1872.109 The matter was again debated in the Senate in May, 1872, The Senate took up the amnesty bill which had passed the House. Again Sumner proposed his Civil Rights Bill as an amendment. And again there were extended debates for110 and against111 the Sumner amendment. Appendix 10i 42nd Cong., 2nd Sess., Appendix, p. 7. 105 42nd Cong., 2nd Sess., Appendix, pp. 25-27. See also Flack, The Adoption of the Fourteenth Amendment, p. 255. 106 42nd Cong., 2nd Sess., p. 893. 107 Id. at 896. 108 Id. at 919. 109 Id. at 928. 110 Edmunds of Vermont (p. 3190). 111 Trumbull (p. 3189) ; Boreman (p. 3195). - 1 6 1 - Senator Trumbull of Illinois, who had introduced the Civil Rights Act of 1866 and the First Supple mental Freedmen’s Bureau Bill in the 39th Con gress, said “The right to go to school is not a civil right and never was . . . it is a privilege.”112 Sen ator Ferry of Connecticut said that in the Northern states and in the District of Columbia students were separated by race and by sex and given equal advantages.113 Again the mixed school provision was a center of heated debate. Boreman of West Virginia said that the common schools in his State would be severely handicapped by forced mixed schools.114 Blair of Mis souri thought it would be good policy to separate the races.115 Ferry of Connecticut moved to delete the refer ence to mixed schools.116 He said: “. . . in the community where I reside there is no objection to mixed schools . . . and if I were called upon to vote there, I should vote for them. It would be a useless expense to establish separate schools for the few colored people in that community. But I cannot judge other com munities by that community. . . . I believe the Senator’s bill relating to the District of Columbia, for instance, would utterly destroy the school system in this District. . . . “Take for instance the State of Ohio where I ____ understand the law permits the districts to have 112 42nd Cong., 2nd Sess., p. 3189. 113 Id. at 3190. 114 42nd Cong., 2nd Sess., p. 3195. 115 Id. at 3251. 116 Id. at 3256. Appendix — 162— mixed or separated schools . . . and I observe a decision of the Supreme Court of Ohio report ed in yesterday’s newspaper . . . It had (there) been the assertion . . . that compelling the separation of the races into different buildings was a violation of the 14th amendment, notwith standing that both races . . . enjoyed the same or equal privileges. . . . that Court . . . of judges whose political opinions are like those of the majority of this body, . . . ‘sustained the constitutionality . . . of the common school laws . . . and held that the organization of separate schools for colored children is not in conflict with the provisions of the fourteenth amendment.’ I believe that that decision is good law.”117 His amendment was defeated118 although his pro posal was later adopted in another amendment, as hereinafter related. Senator Blair’s amendment to allow each city, county, or state to decide at an elec tion whether to have separate schools was defeated.119 Continuing the debate, Senator Casserly of Cal ifornia spoke vigorously against mixed schools. He referred to the decision of the Massachusetts Court in R oberts v. C ity o f B oston upholding the constitu tionality of separate schools in the light of the word ing of the Massachusetts Bill of Rights which was similar to the words of the Fourteenth Amend ment.120 117 42nd Cong., 2nd Sess., p. 3257, May 9, 1872. The case referred to is State v. McCann, 21 Ohio St. 198. v. McCann, 21 Ohio St. 198. 118 Id. at 3285, May 9, 1872. 119 Id. at 3258, 3262. 129 Id. at 3261. Appendix — 163— Again the vote on Sumner’s amendments to the amnesty bill was tied 28 to 28, and the Vice Pres ident voted in its favor. And again the main bill, the amnesty bill, was defeated on May 10, 1872.121 On May 21, 1872, the Senate took up the Sumner Civil Rights Bill as a separate measure. This time, the motion of Senator Carpenter of Wisconsin to amend the bill by deleting the reference to public schools, churches, cemeteries, and juries was adopt ed.122 In this form the Civil Rights Bill passed the Senate.123 Mr. James G. Blaine of Maine, later Speaker of the House of Representatives, in his book Twenty Years of Congress (1886) says this concerning Sen ator Sumner, who was absent when his bill passed with the reference to schools and churches omitted: “The Amnesty Bill was immediately taken up; while it was pending Mr. Sumner returned and warmly denounced the fundamental change that had been made in the Civil Rights Bill . . . Mr. Sumner’s denunciations of the emasculated Civil Rights Bill were extremely severe; but he was 'pertinently reminded by Senator Anthony of Rhode Island that the bill was all that could, be obtained in the Senate at this session, and perhaps more than could be enacted into law. The senator from Rhode Island had correctly estimated the probable action of the House . . .” (p. 514.) 12142nd Cong., 2nd Sess., p. 3270. 122 Id. at 3734, 3735. See also Pierce on Charles Sumner, P- 503 and Moorfield Storey on Charles Sumner, p. 405. 123 Id. at 3736. Appendix — 164— 4. D ebates on the F ed era l A id to E ducation BUI A majority of the members of the House, many of whom had been in Congress when the Fourteenth Amendment was adopted, again showed that they did not think the Fourteenth Amendment required mixed schools. On January 15, 1872, H. R. 1043 was re ported out of committee. It proposed to give finan cial aid to education in the States out of receipts of public land sales.124 125 The bill was silent as to separate or mixed schools, but some members feared that it might be construed to require mixed schools.126 So on February 8,1872, Mr. Hereford of West Virginia offered an amendment providing “That no moneys belonging to any State . . . under this act shall be withheld . . . for the reason that the laws thereof provide for separate schools for white and black children or refuse to organize a system of mixed schools.” The amendment was adopted 115 to 81.126 The bill as amended passed the House127 and was brought out of committee in the Senate.128 But it was not called up for debate in the Senate during the session.129 The Appendix 124 42nd Cong., 2nd Sess., p. 396. 125 Representatives Storm, Kerr, and Harris; id. at 569, 791, 855. 126 42nd Cong., 2nd Sess., p. 882. 127 Id. at 903. 128 42nd Cong., 3rd Sess., p. 869. 129 This bill was unsuccessfully urged in the 43rd Con gress, 1st Session (December 1873), pp. 104, 149. — 165— subsequent history of this act (never passed) is set out in the footnotes. The policy of Congress as to separate schools has not changed.130 5. Sum ner’s A ttem p t to F orce M ixed Schools in the D istr ict Appendix During the same period, Senator Sumner at tempted unsuccessfully to pass through the Senate a bill to require mixed schools in the District of Columbia. Reported from committee in April, 1872,181 the bill proposed to abolish the separate schools and separate school funds created by act of July 11, 1862, and subsequent acts. Senator Stock- . 130 The bill as introduced in the 43rd Congress, was silent as to separate schools, leaving that decision for local districts. Kasson of Iowa spoke against Federal interfer ence in local education (43rd Cong., 1st Sess., p. 468). Butler of Tennessee said it wouldn’t interfere (p. 490). Cox of New York made a blistering speech against mixed schools and said this bill was just an entering wedge (p. 612). The bill was before the 44th Congress, 1st Session, 1876 (p. 1767) ; the 45th Congress, 2nd Session, 1878 (pp. 4119 and 3834) ; and the 46th Congress, 2nd Session, 1879-80 _(pp. 309, 109, 1495). The bill as reported from committee of the House of the 47th Congress _ (1882) contained a provision that funds would not be withheld because of the operation of separate schools. (47th Cong., 1st Sess., p. 3839). Again contain ing authorization for expenditure in separate schools, the wli passed the Senate at the 50th Congress (p. 1223), but id not pass the House. During the first session of the present Congress, the amendment of Senator Lodge to deny unds to States having separate schools was defeated. 81st L°ng-, 1st Sess., p. 5593, May 3, 1949. pm?i42-n? C?ng-’ 2nd Sess- P- 2484; S. B. 365 “to secure town Pukkc schools of Washington and George- - 166- ton of New Jersey argued that what Sumner wanted was not equal rights (for the Negro schools in the District were equal, he said) but forced interming ling of the races. He said: “I think in the condition the two races are before the law . . . we are bound to legislate on all subjects . . . with equality toward them. But when you leave the appropriate subjects of legislation and tell me . . . (where) my chil dren shall go to school, when you attempt really an enforced system of education, you are then treading on the bounds of that civil liberty which our ancestors came to this country to establish.”132 133 134 Senator Bayard of Maryland said he saw no neces sity for the bill and that he had not been shown that the people of the District wanted the bill.183 Senator Ferry of Connecticut offered an amendment which would have called for an election for the people of the District to determine whether or not they wanted mixed schools. He thought to force mixed schools on them would be tyrannical.184 Senator Edmunds of Vermont said that, “It is a matter of great importance that we should determine fairly and squarely whether in the District of Columbia, where we have the power, that we will exercise it in the protection of equal rights. . . .”135 Appendix 132 42nd Cong., 2nd Sess., p. 2540. 133 Id. at 2541. 134 Id. at 3124, 3125. May 7, 1872. 135 Id. at 3123. — 167— Appendix The matter died in the Senate on May 8, 1872, clearly indicating again that the Senate did not think that the policy of the Fourteenth Amendment re quired mixed schools. D. Action and Debates on the Civil Rights Bill of 1875, from the Operation of Which Public Schools Were Excepted. While Mr. Sumner had been unsuccessfully urging his Civil Rights Bill for many years, a portion of a similar bill was enacted in 1875, after the reference to public schools was omitted. This is the Act the first section of which was declared unconstitutional in the Civil R igh ts Cases, 109 U.S. 3. The debates and action on these bills (H. R. 796 and S. No. 1) clearly show that a majority of the Congress did not think that the Fourteenth Amendment required mixed schools. 1. In the H ouse o f R epresen ta tives 43rd Congress, 1st Session, 1873-1874 As introduced into the House of Representatives of the 43rd Congress in December, 1873, the bill (H. R. 796) provided: “That whoever, being . . . in charge of any public inn . . . public amusement . . . stage coach, railroad . . . cemetery or other benev olent institution, or any public school supported • .• • at public expense . . . shall make any distinction as to admission or accommodation therein, of any citizen of the United States be- - 168- cause of race, color . . . shall be fined not less than one hundred dollars nor more than five thousand dollars . . .”136 The bill was debated at great length; and, in the interest of brevity, all of the speeches cannot be re ferred to. The mixed school provision was again one of the main points of division. The bill was sponsored by Rep. Butler of Massa chusetts. He and others of the Massachusetts del egation at first insisted on the mixed school provi sion.137 They were joined by Negro representatives of the then governments of some of the Southern States.138 It was pointed out that mixed schools had worked well in Massachusetts. Other representa tives of some of the Northern States spoke for the bill including the provisions for mixed schools.189 But the bill received strong opposition, particu larly the provision requiring mixed schools. Almost all of those who spoke against the bill pointed out its unconstitutionality. Rep. Hamilton of New Jer sey thought it an unauthorized usurpation of the Federal Government for it to attempt to regulate the schools of New Jersey.140 The Southern representa tives (except the Negro representatives and a Re publican of Florida, Mr. Purman) were of the opin- 136 43rd Cong., 1st Sess., p. 378, Dec. 19, 1873. See Flack, op. cit. supra, pp. 318, 322; 260-264. 137 Id. at 340; Rep. Dawes, p. 342. 138 Rainey of South Carolina, p. 343; Ransier of South Carolina, p. 382, 407, 1311; Elliott of South Carolina, pp. 407-410; Cain of South Carolina, pp. 566, 901; Walls of Florida, p. 417. 139 Frye 0f Maine, id. at 375; Lawrence of Ohio, pp. 412- 415; Monroe of Ohio, p. 414. 140 Id. at 740. Appendix — 1 6 9 - ion that to force mixed schools would cause the aban donment or ruin of public schools in their district; would deprive poor white citizens, who could not af ford private schools, of an education; would deprive the Negro of a good public education because white support, which furnished practically all the tax money, would be withdrawn from the public schools; and, in short, would mean the end of public education in that region.141 On the question of constitutionality, frequent ref erences were made to the Slaughter H ouse Cases where the distinction was pointed out between a person’s rights (1) as a citizen of the United States, and (2) as a citizen of a State. A free school ed ucation at the State’s expense was not a right of a citizen of the United States,” but a “privilege” of a citizen of a State.142 Representative Mills of Texas made a scholarly argument as to the meaning of the Fourteenth Amendment:143 “It was for the reason given by the committee ____ ^hat the 14th amendment was adopted, not to T | fk and Durham of Kentucky, pp. 342, 406; Harris and Whitehead of Virginia, pp, 375, 427; Buckner of Mis- Stephens, Blount, and Harris of Georgia, pp. ooo’ V Roger Q. Mills and Herndon of Texas, pp. cai’i , and Atkins of Tennessee, pp. 414, 453. L , references are to pages in the Congressional Record, 4 i j Congress, 1st Session.) nn loo' ^Herndon of Texas, p. 421; Buckner of Missouri, ptU • ’ 429 ’ Atkms of Tennessee, pp. 414, 453; Stevens of Virginia p 376’ Dur^am Kentucky, p. 406; Harris of in Fitgi? S®ss-> PP- 384-386. The speech is noted t) 261 CK’ 1 A doption o f the Fourteenth Am endm ent, Appendix — 170— enlarge the privileges and immunities already conferred, but simply to prohibit the states from abridging them as they existed. . . . These words have been again and again subjected to the most learned critical investigation. They have been construed by the judicial . . . the legislative . . . and by the executive depart ment, and the interpretation has always been the same. If there is any virtue in the rule stare decisis . . . I hold that all the depart ments of government should stand decided and refuse to go behind the interpretation of these words, so universally acknowledged, and dis turb the decision when the rights of millions hang upon it. . . . “From the authority of adjudged cases it is clear that the privileges and immunities men tioned in the fourteenth amendment are only such as are conferred by the Constitution itself as the supreme law over all . . . “The States have always exercised the right to fix the status of their citizens, and they will continue to do so. It is their own unquestioned right to make and unmake their constitutions and laws for the government of their people; to establish universities, colleges, academies, and common schools, and govern them accord ing to their own pleasure; to prescribe who may be admitted to share their bounty and on what conditions. “The great evil this bill has in store for the black man is found in the destruction of the common schools of the South. His children have been enjoying all the benefits of liberal education, paid for by the white people of the South. . . . “We all in the South know that the white people and black before the war belonged to the Appendix - 1 7 1 - same churches, often had the same pastors; but now of their own volition they have separated everywhere from the white people, and have their own bishops and ministers and churches and congregations— all separate from the white people. . . Representative Harris of Virginia said: “Our constitution, adopted by what was known as the Underwood convention, composed of Republicans, provided that we should inau gurate the free-school system by 1877. But a conservative legislature in 1870, at its first meeting, inaugurated the separate school sys tem. . . . The passage of the civil-rights bill . . . would immediately wipe out, or practi cally destroy, the public school system of Vir ginia.”144 Representative Durham of Kentucky said, “ . . . the most objectionable part of this bill is that which forces the children of the freedmen into our common schools.”145 Numerous amendments were offered to the bill in cluding an amendment stating that separate schools might be maintained for the races.148 Apparently convinced that his bill could not pass, Representa tive Butler of Massachusetts moved to recommit his bill to Committee to consider the amendments pro- i« Srd Consr-’lst Sess-’ pp- 376’ 377-3 Id., at 406. These same sentiments were expressed by the Representatives. Id. at 415, 419, 421, 427, 429. Id. at 407. Appendix — 172— posed. He was impressed with the arguments as to mixed schools. On this matter he said, “But there are reasons why I think this ques tion of mixed schools should be carefully con sidered. The Negroes . . . have never, until the last few years, had an opportunity for edu cation. . . . Therefore in the Negro schools which I established as a military commander during the war, I found that while I had plenty of school boys with ‘shining morning faces,’ there were none ‘creeping unwillingly to school’ . . . And I shall recommit the bill . . . because I want time to consider whether upon the whole it is just to the negro children to put them into mixed schools. . . . “And therefore I am quite content to con sider this question in the light of what on the whole is best for the white and colored child be fore this matter is again before the House.”147 The above indicates that even General Butler of Massachusetts, who was in the 39th Congress which adopted the Fourteenth Amendment, did not really believe that the Fourteenth Amendment would pro hibit separate schools. Otherwise he would not have been willing to consider the expediency of the sep arate school amendment. The bill was recommitted to his Committee on January 7, 1874, and came out on February 3, 1875, amended to allow separate schools.148 Appendix 147 43rd Cong., 2nd Sess., pp. 455-457. 148 43rd Cong., 2nd Sess., pp. 900, 1010. — 173— Appendix 2. In the Senate, 43rd Congress, 1st Session On January 27, 1874, Sumner again introduced his Civil Rights Bill into the Senate. The bill passed the Senate at this session, but did not pass the House of Representatives. The House Bill (H. R. 796) which finally passed the House in 1875, after all ref erence to schools had been deleted, ultimately passed the Senate in that form and became the Civil Rights Act of 1875. The Sumner bill proposed that no citizen of the United States should, because of race, be excluded from the full and equal enjoyment of any accommo dation or facility furnished by any inn keeper, com mon carrier, theater, “common schools and other public institution of learning . . .” or cemetery associations; “provided that private schools, ceme teries, and institutions of learning established exclu sively for white or colored persons . . . shall re main according to the terms of the original establish ment.” The bill provided also that no citizen should he disqualified for jury service because of race. Sec tion 5 provided that “every discrimination against any citizen on account of color by the use of the word white’ . . . in any law, statute, ordinance or reg ulation, national or State, is hereby repealed and an nulled.”149 Senator Edmunds of Vermont moved that the bill be sent to committee because “in some respects” the hill was too “strong.” Senator Stewart of Nevada agreed. Sumner urged immediate passage, but the 149 43rd Cong., 1st Sess., p. 945. - 1 7 4 - bill was sent to committee. In March, 1874, Senator Sumner died.150 On April 29, 1874, Senator Frel- inghuysen of New Jersey reported Sumner’s bill from Committee. The Committee draft of the bill differed from Sumner’s draft. The original bill pro vided that “no citizen should be excluded” from com mon schools, et cerera, and purported to repeal all state laws containing the word “white” referring to race. The Committee’s bill provided that “all per sons . . . shall be entitled to full and equal enjoyment of accommodations . . . and privileges of inns, pub lic conveyances, . . . theaters . . . common schools . . . cemeteries . . . subject only to the conditions and limitations established by law, and applicable alike to citizens of every race, . . .” It omitted the reference to private schools and omitted the section purporting to repeal State laws.151 i Asked if it was a denial of equal rights to have separate schools, Senator Frelinghuysen of New Jersey discussed two cases: S tate v. M cCann by the Supreme Court of Ohio holding separate schools con stitutional under the then recently adopted Four teenth Amendment, and Clark v. B oard o f Directors, by the Iowa Court striking down separate schools under the provisions of the Iow a Constitution (not the Federal Constitution). He pointed out that the cases were distinguishable because of different con stitutional provisions of the States. He further con ceded that it was not a privilege of a “citizen of the United States” to have an education at a States Appendix 150 Blaine, Twenty Years in Congress, p. 544. 151 43rd Cong., 1st Sess., p. 3451. - 1 7 5 - expense. He nevertheless said the object of this bill was to prohibit the exclusion of anyone from a school because of race.152 The bill was taken up again in May, 1874 and passed the Senate after an all-night session. There were many speeches for the bill153 and against it, par ticularly on the question of mixed schools.154 Senator Stockton of New Jersey argued that the regulation of public schools was a matter of State concern only. He said the Legislature of New Jersey would not pass a compulsory mixed school law: “They know their constituents do not desire it. They know it is not right.” He said that Negroes were entitled to “equal” rights; but “equal” rights did not mean “the same” facilities. He referred to the equal, separate schools in the District of Columbia, saying that Negroes and whites had equal rights when they had equal separate schools. He said the Fourteenth Amendment did not purport to tell a local community whether it should organize a school district, pay taxes to support it, and whether it would divide its students by age, sex, or race.155 152 43rd Cong., 1st Sess., p. 3452. .lo3 Alcorn of Mississippi (except the provision for forced mixed schools), Appendix, p. 305; Pease of Mississippi, p. 4153; Edmunds of Vermont, p. 4171; Boutwell of Massa- c*Fs®tts (except that he wanted to except separate white and Negro schools previously established), p. 4169; Freling- nuysen of New Jersey, p. 3452. 154 Stockton of New Jersey, pp. 4117, 4144-4146; Bogy of fflissoun, Appendix, pp. 318-323; Saulsbury of Delaware, P- 4159; Sargent of California, pp. 4167, 4175; Stewart of evada, p. 4167; Gordon of Georgia, p. 4169; Johnston of 4114; Cooper of Tennessee, p. 4155. 43rd Cong., 1st Sess., pp. 4144-4146. This argument referred to in Flack, The Adoption of the Fourteenth Amendment, p. 268. Appendix - 1 7 6 - Senator Howe of Wisconsin thought the first and fifth sections of the Fourteenth Amendment were broad enough to support Congressional legislation. He said, “Let justice be done though the common schools and the very heavens fall.”156 Senator Alcorn of Mississippi had a novel ap proach. He said that the Negroes were in control of his State and so “self protection, if I had no higher consideration, would move me to support . . . this bill . . . I declare myself in favor of that policy which the colored man declares as necessary.” But as to mixed schools he said, “You say that you do not want the schools mixed. Well, I am not in favor of mixing them; and I consider that this bill does not mix them. . . . How is it in my State? There . . . the colored people control; they make the laws; they levy the taxes; they appoint the school board. The whole machinery is in their hands; yet there is not a mixed school in the State . . . and we have civil rights there. Why is it? Simply be cause the colored people do not desire it; be cause they believe the interests of both races will be promoted by keeping the schools sep arate.”157 Senator Saulsbury of Delaware, who had been a Senator in the 39th Congress which proposed the Fourteenth Amendment, said that the Fourteenth Amendment did not remove the State’s police power Appendix 156 43rd Cong., 1st Sess., pp. 4147-4152. 157 Id. at Appendix, p. 305. — 177— Appendix to have separate schools. He read from the opinion of Mr. Justice Field of this Court in B artem eyer v. Iow a: “No one has ever pretended . . . that the 14th amendment interferes in any respect with the police power of the State. Certainly no one who desires to give to that amendment its legit imate operation has ever asserted for it any such effect. It was not adopted for any such purpose. The judges who dissented from the opinion of the majority of the Court in the Slaughter-House Case never contended for any such position. But on the contrary, they recog nized the power of the State in its fullest ex tent. . . ”158 He referred to separate schools in Maryland and Delaware as being best for both races, and said that to force mixed schools would destroy the common schools. In fact, he said, “ . . . I say that, sooner than see mixed schools in the State of Delaware, I would be glad to see the Legislature destroy the com mon school system in the State.”159 Senator Stewart of Nevada, who was also in the 39th Congress, said he thought Congress had the power to legislate. But it is evident that he did not believe the Fourteenth Amendment required mixed schools because he argued against that provision: “If by voting for mixed schools I thought I could accomplish that purpose (educating the Negro) . . . I would vote for them; but I am 158 43rd Cong., 1st Sess., p. 4159, May 22, 1874; 18 Wall. 129, 138 (1873). 169 Id. at 4157-4162. Appendix — 178— afraid they would not have that precise effect. Consequently I think it ought to be left optional to have schools mixed or separate as the people themselves desire. I do not think at all events we should take the step to compel mixed schools.” He said he thought the Constitution should be amended to require the States to maintain common schools (and he had offered the amendment twice). “But while it is left to the States to have systems of free schools or not, and while the several States are wavering in the balance . . . I say it is endanger ing, in many of the States the education of the pres ent generation . . .”160 Senator Stewart of Nevada said that the Senator from Massachusetts (Boutwell) was thinking of the 800,000 Negro votes, and he rejoiced with him that the Republican party had them. But he said, “No political consideration can make me vote in a manner which I fear will deny to any child the right to be educated.”161 Senator Sargent of California said that the Four teenth Amendment did not prohibit mixed schools any more than it prohibited the separation of boys and girls.” 162 160 43rd Cong., 1st Sess., p. 4167. 161 Id. at 4169. Boutwell of Massachusetts foresaw the Negro voting Republican out of gratitude, p. 4115. Flack, in his Adoption of the Fourteenth Amendment', observed that the “prime motive of a majority of those who voted for the bill was political. . . .” p. 271. 162 Id. at 4172, 4175. — 179— The advocates of the bill were successful in de feating amendments to the bill. Senator Boutwell of Massachusetts, who had been in the 39th Congress, wanted to amend the bill to except common schools or other institutions of learning theretofore estab lished from the operation of the bill.163 Senator Thurman of Ohio wanted the $500 fine payable to the person whose civil rights were offended.164 Sen ator Gordon of Georgia moved to omit the reference to common schools.165 (It will be remembered that the bill as finally enacted at the next session did delete the reference to common schools.)166 Other amendments as to the enforcement of the Act, not material here, were also rejected.167 The bill was passed by the Senate on May 22, 1874.168 163 43rd Cong., 1st Sess., p. 4115. His amendment would make the bill read: “And also of every common school . . . that may hereafter be endowed by any State or supported in whole or in part by public taxation.” His amendment was defeated, p. 4169. He was particularly anxious about schools of a private nature which were supported in part by the State. 165 p 4 1 7 0 166 43rd Cong., 2nd Sess., pp. 1010, 1011 in the House; id. at 1870 in the Senate. 187 43rd Cong., 1st Sess., pp. 4170-4171; 4175. 168Id. at 4176. As passed, Section 1 of the bill read: “That all citizens and other persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; and also of common schools and public institutions of learning or benev olence supported, in whole or in part, by general taxation, and of cemeteries so supported, and also the institutions known as agricultural colleges endowed by the United States, subject only to the conditions and limitations estab lished by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servi tude.” Section 4 of the bill prohibited exclusion from jury service because of race. Appendix — 180— 3. In the If 3rd C ongress, 2nd Session, 1875 The House of Representatives had returned H. R. 796 to committee at the close of the first session of the 43rd Congress. On February 1,1875, Mr. Butler of Massachusetts was successful in getting the bill considered again.169 The bill as reported by Commit tee was amended specifically authorizing separate schools.170 Apparently the Committee, of which But ler was chairman, felt that Congress should affirma tively make separate schools an exception to the Civil Rights Act. Others, as will be shown in the amend ment proposed by White of Alabama, thought the bill should go further and also affirmatively allow, separate accommodations in inns and on public trans portation. Others thought (Rep. Cessna) that the wording of the Senate’s bill by Mr. Sumner, requir ing mixed schools, should be substituted. Still others, (Kellogg) thought that the Congress should enact the bill as to its other, provisions and just not legis late as to schools, thus leaving the matter to the in dividual States. This latter view was ultimately adopted. Appendix 169 The rules of the House were amended in order to get the bill brought up. 43rd Cong., 2nd Sess., pp. 900-902. Butler had reported the bill on December 16, 1874, but it was again recommitted (id. at 116). On January 25, 1875, he attempted to bring the bill up again but failed to get the necessary two-thirds vote (id. at 704). 170 Flack, The Adoption of the Fourteenth Amendment at page 272 says that the bill was almost identical with the one passed by the Senate. In most respects, his statement is correct. But it is erroneous as to the school provision. — 181— The Committee after the reference to common schools in the bill added the following: “Provided, That if any State or the proper authorities in any State, having the control of common schools or other public institutions of learning aforesaid, shall establish and maintain separate schools and institutions, giving equal educational advantages in all respects for dif ferent classes of persons entitled to attend such schools and institutions, such schools and insti tutions shall be a sufficient compliance with the provisions of this section so far as they relate to schools and institutions of learning.”171 The following amendments were offered (and they will hereafter be referred to by the name of the Representative proposing the amendment): 1. W h ite of Alabama: to add the following proviso: “Provided that nothing in this act shall be construed to require mixed accommoda tions, (by sitting together) facilities, and privileges at inns, in public conveyances . . . theaters, . . . for persons of different race or color, nor to prohibit separate ac commodations, facilities and privileges at inns, in public conveyances . . . theaters . . . And provided further that nothing in this act shall be construed to require mixed common schools . . .”172 * 2. Cessna of Pennsylvania moved to substitute the words of the Senate bill.178 17143rd Cong., 2nd Sess., p. 1010. 172 Id. at 939. 1,3 Id. at 938; defeated p. 1011. — 182— Appendix 3. K ellogg of Connecticut moved to strike out the words of the original bill as to schools and also the proviso added by the House Judiciary Committee; i. e., to pass the bill omitting all reference to schools.17* Representative Finck of Ohio, who had been in the 39th Congress which proposed the Fourteenth Amendment, cited with approval the then recent de cision of the Ohio Supreme Court in S tate v. McCann, 21 Ohio St. 198. He said it was rendered by “ a full court . . . every member of who was a prominent member of the republican party . . . in which it was held that it was no infringement of the 14th article to the Constitution to prohibit Negro children from attending the same school with white chil dren.”174 175 He also discussed the Slaughter House Cases. There were again many speeches on the bill, par ticularly with reference to the school clauses. In the interest of brevity, they cannot be summarized here. Some favored the broad Senate version pro posed by the C essna amendment.176 Others were 174 43rd Cong., 2nd Sess., p. 1010. 175 Id. at 948. Finck thought the whole bill unconstitu tional and an unwarranted interference with the powers of the State. His speech is referred to in Flack, pp. 272-273. 176 Rainey, Negro Representative of South Carolina, p. 959; Hoar of New York, p. 979; Roberts of New York, p. 980; Lewis, a Republican from Tennessee, p. 998; Burrows of Michigan, p. 1000; Phillips of Kansas, p. 1003; Shanks of Indiana, p. 1003; Garfield of Ohio, p. 1004; Williams of Wisconsin, p. 1002; Lynch, Negro Representative from Mississippi, p. 945. (All references are to Congressional Record, 43rd Cong., 2nd Sess.) — 183— against the whole bill but favored the W hite amend ment to allow separate accommodations in carriers, inns, schools; and many were against compulsory mixed schools.177 Cain, a Negro Representative from South Car olina, suggested that for the sake of peace within the Republican Party, they might accept the school clause of the Committee.178 Blount of Georgia re minded the House that the majority of the House was made up of “lame ducks” and that the country had spoken against the Civil Rights measure at the recent elections.179 Phelps, a Republican of New Jer sey, also reminded the House of the recent Repub lican defeat at the polls. He said: “To pass this bill, we defy the opinion of the people of the United States recently and em phatically declared; for if there was one issue on which we went to the country it was this . . . Upon this issue the two great parties went to judgment. And the people last fall declared their judgment, and w ith a, thunder that shook one hundred m em bers out o f their s e a ts ” He spoke against forcing mixed schools on the South.180 Stanard of Missouri said his State had sep- 17‘ Storm of Pennsylvania, pp. 950-952; Lamar and Hun- t®r of Virginia, id. at Appendix, pp. 119 et seq.; Whitehead ot Virginia, pp. 952-957; Smith of Virginia, p. 960 and Ap pendix p. 156; Blount of Georgia, p. 977; Phelps of New Jersey, p. 1001; Finck of Ohio, p. 948; Southard of Ohio, P-996; Brown of Kentucky, p. 938; Small of New Hampshire, p. 981. 178 43rd Cong., 2nd Sess., p. 957. 178 Id. at 977. 180 Id. at 1002. Appendix — 1 84 — Appendix arate schools, and that they were necessary for the education of both races.181 Chittenden of New York thought the bill unduly vexatious to both races.182 Small of New Hampshire said he didn’t think the Senate bill required mixed schools “only that they shall have equal privileges.”183 Since the K ellogg amendment was adopted, his ex planation of his amendment to the House is per tinent : “The amendment I have proposed is to strike out of the House bill reported by the Committee on the Judiciary all that part which relates to schools; and I do it, Mr. Speaker, in the interest of education, and especially in the interest of the education of the colored children of the Southern States. . . . The proviso to the first section is one that makes a discrimination as to classes of persons attending public schools; and I do not wish to make any such provision in an act of Congress. “But upon this school question we should be careful that we do not inflict upon the several States of the Union an injury that we ought to avoid. A school system in most of the Southern States has been established since the war of the rebellion, by which the colored children of the South have the advantages of an education that they never could have before that time. I be lieve, from all the information I can obtain, that you will destroy the schools in many of the Southern States if you insist upon this pro vision of the bill. You will destroy the work of 181 43rd Cong., 2nd Sess., p. 981. 182 Id, at 982. 183 Id, at 981. Appendix — 185— the past ten years and leave them to the mercy of the unfriendly legislation of the States where the party opposed to this bill is in power. And besides, this matter of schools is one of the sub jects that must be recognized and controlled by State legislation. The States establish schools, raise taxes for that purpose, and they are also aided by private benefactions; and they have a right to expend the money, so raised, in their own way. . . .” 43rd Cong., 2nd Sess., p. 997. After adopting the amendment of Mr. Kellogg of Connecticut184 the House passed the bill on February 4, 1875.185 The bill then went to the Senate. The House Bill (H. R. 796) was taken up by the Senate on February 26, 1875. There were few speeches, and most of the discussion was with refer ence to the jury service provision.186 There was some debate on the constitutionality of the bill.187 After this short debate, the bill was passed the same day.188 It was signed by President Grant on March 1 ,1875.189 184 43rd Cong., 2nd Sess., p. 1010. 185 Id. at 1011. 186 Thurman of Ohio moved to amend the bill to limit its jury provisions to Federal Courts (id. at 1791) ; his amend ment was defeated, p. 1867. 187 That it was unconstitutional: Carpenter of Wisconsin, p. 1861; Dennis of Maryland, p. 1865; Thurman of Ohio, p. 1791. That it was constitutional: Boutwell of Massa chusetts, p. 1792; Morton of Indiana, p. 1794. 188 Id., at 1870. 189 Id. at 2013. — 186— E. The Present A cts of Congress Providing for and Recognizing Separate Schools 1. Congress Has Continued to Maintain Separate Schools in the District of Columbia. In 1874, as part of the Revised Statutes for the District of Columbia, Congress provided that: “It shall be the duty of the school board to provide suitable and convenient . . . schools for colored children . . . and to endeavor to promote a thorough, equitable, and practicable education of colored children . . . of the dis trict. “Any white resident shall be privileged to place his . . . child . . . at any one of the schools provided for . . . white children . . . and any colored resident shall have the same right with respect to colored schools.”190 The same Act in Section 294 provided that “there shall be a board of trustees of schools for colored children in the cities of Washington and Georgetown . . .” and Section 304 stated that “there shall be a superintendent of schools for colored children. . . 190 Sections 281 and 282 of Revised Statutes Relating to the District of Columbia, U. S. Gov. Printing Office 1875. There have been other changes, not relevant here, in the number and composition of the school boards or Commis sioners in charge of the schools. See Ingle, The Negro in the District of Columbia, Johns Hopkins University Studies, 11th Series (1893), pp. 29 et seq,, and the opinion of the Cir cuit Court of Appeals for the District of Columbia in Carr v. Corning, decided February 14, 1950 (unreported yet). The major Acts are: 20 Stat. 107 (1878); 22 Stat. 142 (1882) ; 28 Stat. 693 (1895) ; 34 Stat. 316 (1906). Appendix — 187— The Congressional Acts presently in force include the following provisions: “It shall be the duty of the Board of Educa tion to provide suitable and convenient . . . schools for colored children . . “Any white resident shall be privileged to place his or her child . . . at any one of the schools provided for the education of white chil dren . . . and any colored resident shall have the same rights with respect to colored schools.” “It shall be the duty of the proper authorities of the district to set apart . . . from the whole fund received . . . such a proportionate part of all moneys received . . . as the colored chil dren . . . bear to the whole number of children, white and colored . . .”191 “It is the duty of the Board of Education to provide suitable rooms and teachers for such a number of schools . . . as, in its opinion, will best accommodate the colored children of the District of Columbia.”192 2. G rants to S eparate Land-G rant Colleges The present acts of Congress193 recognize the valid ity of separate colleges for white and Negro students by providing funds for separate land-grant agricul tural and mechanical colleges (including Texas A. & M. College for white students and Prairie View 191 District of Columbia Code (1940 ed.), Sec. 31-1110, mi, m2. 192 D. C. Code 31-1113; Sec. 31-109 provides for one white and one colored first assistant superintendents for the re spective schools. 193 7 U.S.C., § 323. Appendix — 188— A. & M. College for Negro students of Texas). The history of this act (known as the Morrill Act) is per tinent, particularly in view of the fact that Senator Morrill of Vermont, after whom the bill is named, had not only been a member of the 39th Congress but a Republican member of the Committee of Fifteen which proposed the Fourteenth Amendment. Land-grant colleges were established in the States to take advantage of an Act of July 2, 1862, which granted certain lands to the States, the proceeds from the sale of which were to be applied to agri cultural and industrial education.194 The original act provided that those States which were “in rebel lion or insurrection against the government of the United States” were to receive no benefits. On March 25, 1890, Senator Morrill of Vermont introduced a bill to apply the proceeds of the sale of public lands to public education and the support of the land-grant colleges.195 As reported from the Senate Committee, Section 2 of the bill read in part: “P rovided , That no money shall be paid out from the college fund arising under this act to any State or Territory for the support and maintenance of a college where a distinction of race or color is made in the admission of stu dents, but the establishment and maintenance 1Si 12 Stat. 503 (1862) ; this act was supplemented in 1870 to establish “agricultural experimental stations” at colleges established under the original act. 24 Stat. 440 (1887). 195 51st Cong., 1st Sess., p. 2595. These colleges were those teaching “Agriculture and the Mechanic Arts” the same as those established under the Act of 1862. Appendix — 189— of such colleges separately for white and colored students shall be held to be a compliance with the provisions of this act.”196 Objection was made that the bill attempted to in terfere with the internal operation of the land-grant colleges, which, it was argued, is a State function.197 This was the principal objection to the bill and most of the debate was confined to this point and to the amount of money to be granted. Senator Pugh of Alabama offered the following amendment to be added to Section 2: “ P rovided fu rth er , That the Legislature of any State in which institutions of like character have been established and are now being aided by such State out of its own revenue for the education of colored students in agricultural or the mechanical arts, whether styled colleges or not, and whether they have or not received any money heretofore under the act to which this is an amendment, may appropriate any portion of the fund received under this bill to such insti tutions so established and aided by such State as a compliance with the provision in reference to separate colleges for white and colored stu dents.”198 190 51st Cong., 1st Sess., p. 6085. A committee amend ment deleted the words “from the college fund arising.” A substitute bill had previously been considered. Id. at 4003 and 6083. 197 51st Cong., 1st Sess., pp. 6332-6336. Morgan of Ala bama, Reagan of Texas, Hawley of Connecticut, and Plumb of Kansas indicated vigorously their belief in this prop osition. 108 51st Cong., 1st Sess., p. 6431. A similar amendment had been proposed by Senator Hoar of Massachusetts. Id. at 6345. Appendix — 190— The purpose of this amendment was, it was stated, to overcome a difficulty created by the Act as reported from the committee in that it provided that only one college could be benefited, thus prohibiting benefits to the second college in those States which had one for Negro students and one for white students.199 Senator Morrill offered to accept the proposed amendment.200 The debate on the amendment of fered by Senator Pugh was concerned primarily with the determination of an equitable distribution of the funds within the States and an apprehension that perhaps the fund might be dissipated by the es tablishment of too many schools. Senator Hoar of Massachusetts, who had been outspoken in favor of the civil rights of Negroes as a member of the House in previous Congresses, stated that “ . . . in" the institution in my State colored and white youth study together . . . wherever colored and white youth do not study together the bill should secure equal provision for col ored youth. . . .”201 Senator Hawley of Connecticut stated: “I will not object to the provision . . . which forbids any distinction of race or color . . . but allows the establishment and maintenance of such colleges separately for white and colored students. . . ”202 Appendix 199 51st Cong., 1st Sess., p. 6344. 290 Id. at 6341. 201 Id. at 6345. 202 Id. at 6346. — 1 9 1 - Appendix Senator Ingalls of Kansas, after remarking that his State had only one school, stated, with reference to the Southern States, that “I believe that it is inappropriate and im proper, in various ways detrimental to the in terests of both races, that coeducation should be conducted.”203 As a compromise the following was offered in lieu of the amendment of Senator Pugh of Alabama: “P rovided fu rth er , That in any State in which there has been one college established in pur suance of the act of July 2, 1862, and also in which an educational institution of like char acter has been established and is now aided by such State from its own revenue for the educa tion of colored students in agriculture and the mechanic arts, however named or styled, or whether or not it has recevied money heretofore under the act to which this act is an amendment, the Legislature of such State may propose and report to the Secretary of the Interior a just and equitable division of the fund to be received under this act between one college for white students and one institution for colored stu dents established as aforesaid, which shall be divided into two parts and paid accordingly. And thereupon such institution for colored stu dents shall be entitled to the benefits of this act and subject to its provisions as much as it would have been included under the act of 1862; and the fulfillment of the foregoing provisions shall 203 51st Cong., 1st Sess., p. 6349. Appendix — 192— be taken as a compliance with the provision in reference to separate colleges for white and col ored students.”204 The amendment was accepted205 and the bill was passed by the Senate containing both the amendment and the original provision with regard to separate schools for Negroes.206 Thus, as it then passed in the Senate (and as it reads today), Senator Morrill’s bill provided: “ Provided , That no money shall be paid out under this act to any State or Territory for the support and maintenance of a college where a distinction of race or color is made in the ad mission of students, but the establishment and maintenance of such colleges separately for white and colored students shall be held to be a compliance with the provisions of this act. . . . P rovided , That in any State in which there has been one college established in pursuance of the act of July 2, 1862, and also in which an educa tional institution of like character has been es tablished, or may be hereafter established, and is now aided by such State from its own rev enue, for the education of colored students in agriculture and the mechanic arts . . . the Legislature of such State may propose and re port to the Secretary of the Interior a just and equitable division of the fund to be received under this act between one college for white students and one institution for colored stu- 204 51st Cong., 1st Sess., p. 6369, Section 1. 205 Id. at 6370. 206 Id. at 6372. - 1 9 3 - dents . . . and the fulfillment of the foregoing provisions shall be taken as a compliance with the provision in reference to separate colleges for white and colored students.”207 Passage of the bill by the House was completed with no debate on the provision allowing donations to separate schools on August 19, 1890.208 The Sen ate concurred in the House amendment to that part of the bill which named the type of instruction to be given.209 The bill was signed by the President on August 30, 1890.210 Thus, by virtue of a bill introduced by a Senator who had been a member of the committee which pro posed the Fourteenth Amendment, the 51st Con gress, by making appropriations to separate schools, interpreted the Fourteenth Amendment and the civil rights legislation as not prohibiting separate schools for white and Negro students. 3. Grants fro m N ational School Lunch A ct to S eparate Schools The present National School Lunch Program Acts recognize separate schools and authorize payments to the separate schools. The act provides in part: “. . . If a State maintains separate schools for minority and for majority races, no funds 207 51st Cong., 1st Sess., p. 8828. 208 Id. at 8839. . The bill had been referred to the Com mittee on Education, reported favorably, and debated in the House. Id. at 6464, 7228, 8828. 209 Id. at 8874. 210 Id. at 9388; 26 Stat. 417 (1890). Appendix — 194— made available pursuant to this chapter shall be paid or disbursed to it unless a just and equitable distribution is made within the State, for the benefit of such minority races, of funds paid to it under this chapter.”211 Appendix II. CONSTRUCTION OF THE FOURTEENTH AMEND MENT BY THE STATE LEGISLATURES An examination of the contemporaneous Acts of the Legislatures of the States will show that the Legislatures did not construe the Fourteenth Amend ment, which was proposed in 1866 and became effec tive in 1868, to abolish the police power of the States to provide equal education for their white and Negro students in separate institutions. In addition to the Acts of Congress providing sep arate schools in the District of Columbia, and the Acts of the legislatures of the 17 Southern States which still require separate schools,212 the Legisla tures of the Northern States considered that they had the power to legislate separate or mixed schools. The acts of these States which were represented in the 39th Congress when the resolution submitting the Fourteenth Amendment was adopted will be briefly set out: California.— In 1869, almost immediately after the adoption of the Fourteenth Amendment in 1868, a statute was enacted which provided for the educa- 211 60 Stat. 233, 42 l|.S.C., § 1760(c) (1946). 212 These Acts are set out in the Appendix of the Amicus Curiae brief of the Southern States. — 195— tion of “children of African descent, and Indian chil dren” in separate schools.213 In 1872 the law pro vided that the schools must be open to all “white children between five and twenty-one years of age,” and'the above law of 1869 was codified.214 Delaware.—In 1857 the school committee of each district was delegated the power to provide for schools “free to all white children of the district.”215 Since that time separate schools for white and Negro students have been provided by the Constitution and statutes.216 217 Indiana.— The joint resolution proposing the Four teenth Amendment was ratified by Indiana in 1867. In 1869, after the adoption of the Fourteenth Amendment, the Legislature enacted a law provid ing that the trustees “shall organize the colored chil dren into separate schools.”211 This statute was re enacted with some changes in 1877.218 Kansas.— The Fourteenth Amendment was ratified by Kansas in 1867. By a statute of 1868, the boards of education in cities of the first class were given the power to establish separate schools for white and 213 Cal. Laws, 1869-70, c. 145, Sec. 56, p. 839. 214 Cal. Political Code, 1872, Secs. 1662, 1669. 215 Del. Rev. Stat., c. 42, Sec. 11(3), p. 207 (1852). 216 Del. Const., Art. X, Sec. 2 (1897) ; Del. Laws 1881, c. 362, p. 385; Del. Laws 1889, c. 540, p. 651; Del. Rev. Stat., c. 66, p. 341 (1852 as amended 1893). 217 Ind. Laws 1869, p. 41. 218 Ind. Laws 1877, p. 124. Appendix - 1 9 6 - Negro children.219 This statute was amended in 1879 and 1905 but the provisions relating to separate schools were reenacted each time.220 Appendix Kentucky.— Several statutes providing for separate schools in the cities were enacted in 1871 and 1872.221 This policy was continued when the public school systems were established.222 A constitutional provi sion in 1891 and a statute covering the educational system of the entire State in 1892 both provide for separate schools.223 Maryland.— A statute providing finances for sep arate schools was passed in 1870.224 Subsequent stat utes carried forward this policy of separation in ed ucation.225 Missouri.— A provision in the Constitution of 1865 required separate schools for “children of African descent.”226 With this provision in the Constitution the Fourteenth Amendment was ratified by Missouri in 1867. The Constitution of 1875 contained a sim- 219 Kan. Laws 1868, c. 18, Sec. 75, p. 146. 220 Kan. Laws 1879, c. 81, Sec. 1, p. 163; Kan. Laws 1905, c. 414, Sec. 1, p. 676. 2211 Ky. Laws 1871-72, c. 594, Sec. 10, p. 62; 2 Ky. Laws 1871-72, c. 112, p. 194; 2 Ky. Laws 1871-72, c. 520, Sec. 8, p. 598. 222 Ky. Laws 1879, c. 894, p. 273; Ky. Laws 1879, c. 377, Sec. 9, p. 340. 223 Ky. Const., Sec. 187 (1891) ; Ky. Laws 1891-92-93, c. 260, Art. XIV, p. 260. 224 Md. Laws 1870, c. 18, p. 555. 225 Md. Laws 1872, c. 18, p. 650; Md. Laws 1874, c. 463, p. 690; 2 Md. Rev. Stat., c. 18, Secs. 124-127 (1904). 226 Mo. Const., Art. IX, Sec. 2 (1865). — 197— ilar provision for “separate free schools” for Ne groes.227 Similarly the statutes provided for sep arate schools and the procedure for their operation.228 New Jersey.— The Fourteenth Amendment was there ratified in 1866. In 1881 a statute was enacted that “no child . . . shall be excluded from any pub lic school . . . on account of . . . color.”229 An in dustrial school for Negroes was established in 1895, and it remains in operation.230 Separate schools were in existence231 until they were specifically prohibited by a provision in the new Constitution in 1949. New York.— In 1864, the school boards were em powered to establish separate schools for “youth of African descent.”232 The Fourteenth Amendment was there ratified in 1867. In 1894, additional legis lation was passed providing for separate schools for Negroes.283 Ohio.— The law in 1848 and 1849 provided for sep arate schools for Negroes.234 Ratification of the Four teenth Amendment was there completed in 1867. In 227 Mo. Const., Art. XI, Sec. 3 (1875). 228 Mo. Laws 1874, Sec. 74, p. 164; 2 Mo. Rev. Stat., c. 150, Sec. 7052 (1879) ; 2 Mo. Rev. Stat., c. 143, Sec. 8002 (1889) ; 2 Mo. Rev. Stat., c. 154, Sec. 9774 (1899) ; 2 Mo. Rev. Stat., c. 106, Sec. 10793 (1909). 229 N. J. Laws 1881, c. 149, p. 186. 230 3 N. J. Gen. Stats., Schools, Secs. 315-320, p. 3073 (1709-1895) ; N. J. Laws 1904, c. 1, Secs. 201-204, p. 76. 231 Murray, Negro Handbook, p. 132 (1949). 232 N. Y. Laws 1864, Title 10, p. 1281. 233 2 N. Y. Laws 1894, Art. 11, p. 1289. 234 Ohio Laws 1847-8, p. 81; Ohio Laws 1848-9, p. 17. Appendix — 198— Appendix 1878 a statute provided that the boards of education might “organize separate schools for colored chil dren.”235 Similarly in 1880 the power to establish separate schools was again legislated.236 237 West Virginia.—In 1 8 6 5 the Legislature provided for separate schools.287 In 1 8 6 7 the Fourteenth Amendment was ratified. In 1871 the Legislature provided that “white and colored persons shall not be taught in the same school.”238 239 This mandate was repeated in 1 8 7 2 ,239 1881,240 and 1 8 8 4 .241 Oregon,242 Vermont,243 Rhode Island,244 New Hamp shire,245 and Nebraska246 having small Negro popula tions did not specifically legislate as to separate or mixed schools. The Constitution of Iowa pro hibited separate schools; and in the same year of the adoption of the Fourteenth Amendment, its Supreme Court held a statute providing for sep arate schools unconstitutional under the Iowa (not the United States) Constitution.247 Massa- 235 Ohio Laws 1878, p. 513. 236 Ohio Rev. Stats. 1880, c. 9, Sec. 4008, p. 1005. 237 W. Va. Laws 1865, c. 59, Sec. 17, p. 54. 238 W. Va. Laws 1871, c. 152, Sec. 19, p. 206. 239 W. Va. Laws 1872-3, c. 123, Sec. 17, p. 391. 240 W. Va. Laws 1881, c. 15, Secs. 17, 18, p. 176. 241 W. Va. Code, Art. 12, Sec. 8, p. 35 (Worth 1884). 242 Ore. Laws 1855, p. 466; Ore. Laws 1887, p. 23. 243 Vt. Laws 1865-66, p. 94; Vt. Laws 1892, p. 251. 244 R. I. Laws 1882, c. 50, p. 139. 245 N. H. Laws 1867, c. 78, Sec. 19, p. 165; N. H. Laws 1878, c. 86, Sec. 19, p. 208. 246 Neb. Rev. Stat., c. 79, Sec. 2, p. 664; Neb. Rev. Stat., c. 69, Sec. 2, p. 982 (1873). 247 Iowa Laws 1858, c. 52, p. 65; Clark v. Board of Direc tors, 24 Iowa 266 (1868). — 199— Appendix chusetts had mixed schools before the adoption of the Fourteenth Amendment.248 Connecticut,249 Maine,250 Michigan,251 Minnesota,252 and Wisconsin,253 each having maintained separate schools for whites and Negroes before the adoption of the Fourteenth Amendment, continued such policy after their ratifi cation of the amendment until the policy was later changed by their own statutes, thereby evidencing their interpretation that the Fourteenth Amendment did not accomplish that purpose. Illinois, which maintained separate schools prior to its ratification of the Fourteenth Amendment in 1867, continued that policy thereafter until 1874 when it enacted a statute discontinuing separate schools. Separate schools continued to exist, how ever, in sections of the State.254 248 Mass. Laws 1854-55, pp. 674-75; Mass. Laws 1904, c. 498, Sec. 4, p. 608; Mass. Rev. Stat., c. 498, Sec. 11, p. 1160 (Supp, 1889-1895). 249 Conn. Laws 1835, Title 53, p. 321; Conn. Laws 1866, 1867, 1868, c. 58, p. 206. 250 Me. Laws 1873, c. 124, Sec. 4, p. 78; Me. Laws 1887, c. 100, Sec. 31, p. 74; Me. Rev. Stat., Supplement 1885-1895, «. 11, Sec. 31, p. 132. 251 Mich. Laws 1871, No. 170, Sec. 28, p. 274; 2 Howell’s Ann. Stat., c. 3, Sec. 5070, p. 1334; 2 Mich. Comp. Stats., c. 136, Sec. 18, p. 1478. 252 Minn. Laws 1864, c. 4, Sec. 33, p. 26; Minn. Stat., c. 14, Secs. 2998, 2999 (Mason 1927); Minn. Stat., c. 245, Sec. 10 (Mason 1927). 253 Wise. Rev. Stats. 1878, c. 27, Sec. 494, p. 185. 254 111. Laws 1847, p. 120; 111. Rev. Stat., c. 122, Sec. 100, P- 9°3; 111. Rev. Stat. (Cathran 1883), c. 122, Sec. 101, p. 1406; 111. Laws 1949, p. 53. Although cases arising in Alton, moo01̂ ^een before ^ e Illinois courts in 1886 and io99, this city continues to maintain separate schools for I '!11® and Negro students. Alton Evening Telegraph, Jan. 4-26,1950, p. 1, col. 1; Bond, Education of the Negro in the American Social Order, 382 (1934). — 200— Nevada continued separate schools for Negroes by statute in 1867, the same year the Fourteenth Amendment was ratified, but in 1872 these statutes were declared unconstitutional under the Nevada Constitution.255 In Pennsylvania the statutes provid ing for separate schools were retained after the Fourteenth Amendment was ratified. They were not repealed until 1881.258 Nowhere has any State statute requiring separate equal schools been declared to be in violation of the Fourteenth Amendment or any other provision of the Constitution of the United States. Where sep arate schools were abandoned, it was done on the vol untary action of the State Legislature. III. CONTEMPORANEOUS CONSTRUCTION OF THE FOURTEENTH AMENDMENT AND THE CIVIL RIGHTS ACTS BY THE STATE AND FEDERAL COURTS The Fourteenth Amendment, the Civil Rights Acts of 1866 and 1875, and the other similar enactments were construed by the State and Federal courts dur ing the period of their consideration and enactment. These cases may be looked to in order to determine the contemporary construction by the courts and thereby to ascertain from another source the status of separate schools under the Reconstruction enact ments. 255 Nev. Laws 1864-65, c. 145, Sec. 50, p. 426; Nev Laws 1867, c. 52, Sec. 21, p. 95; State ex rel. S toutm eyer v. Duffy, 7 Nev. 342 (1872). 256 Pa. Laws 1854, p. 623; Purdon’s Digest, Common Schools, Sec. 54, p. 244 (Brightly 1700-1872) ; Pa. Laws 1867, p. 9; Pa. Laws 1872, p. 1048 repealing Pa. Laws 1855, Sec. 14, p. 12; Pa. Laws 1881, p. 76. Appendix — 201— Appendix It was contended in a New York Court in 1869257 that the provisions of the City charter in Buf falo, New York, providing for separate schools for white and Negro students “were inconsistent with the Act of Congress called the ‘civil rights bill’ and had therefore become inoperative.” With regard to this contention the New York Court stated: “It was no part of the civil rights bill to reg ulate or provide for the enjoyment of rights or privileges of the nature of those in controversy in this case. A principal object of that act was to confer citizenship upon the colored people, and . . . to abrogate the rule . . . in . . . the Dred Scott case. . . . In addition to that, this act was intended to confer upon the colored people all the substantial rights of the citizen. And these, so far as they are affected by the act, are enumerated in the first section. . . . It is clea<r that the righ t or privilege o f attend ing a school provided fo r w hite children is not among those included in this section. Nothing is contained in either of the succeeding sections of this act from which it is or can be claimed, that such a right or privilege can be derived, and it is, therefore, unnecessary that any par ticular reference should be made to them for the purpose of disposing of this case. They were enacted for the purpose of more effectually se curing and maintaining the rights conferred by and enumerated in the first section.” (p. 256.) (Italics are added throughout.) 257 Dallas v. Fosdick, 40 How. Prac. 249. - 202 - In Ohio in 1871 the statutory provision regarding separate schools was attacked as in contravention of the Fourteenth Amendment.258 The Ohio court stated: “Unquestionably all doubts, wheresoever they existed, as to the citizenship of colored persons, and their right to the ‘equal protection of the laws/ are settled by this amendment. But neither of these was denied to them in this State before the adoption of the amendment. At all events, the statutes classifying the youth of the State for school purposes on the basis of color, and the decisions of this court in relation there to, were not at all based on a denial that colored persons were citizens, or that they are entitled to the equal protection of the laws. It would seem, then, that these provisions of the amend ment contain nothing conflicting with the stat ute authorizing the classification in question, nor the decisions heretofore made touching the point in controversy in this case. “. . . conceding that the 14th amendment not only provides equal securities for all, but guar antees equality of rights to the citizens of a State, as one of the privileges of citizens of the United States, it remains to be seen whether this privilege has been abridged in the case before us. The law in question surely does not attempt to deprive colored persons of any rights. On the contrary it recognizes their right, under the constitution of the State, to equal common school advantages, and secures to them their equal proportion of the school fund. It only regulates the mode and manner Appendix 258 State ex rel. G am es v. McCann, 21 Ohio St. 198. - 2 0 3 - in which this right shall be enjoyed by all classes of persons. The regulation of this right arises from the necessity of the case. Undoubtedly it should be done in a manner to promote the best interests of all. But this task must, of neces sity, be left to the wisdom and discretion of some proper authority. The people have com mitted it to the general assembly, and the pre sumption is that it has discharged its duty in accordance with the best interests of all. “At most, the 14th amendment only affords to colored citizens an additional guaranty of equality of rights to that already secured by the constitution of the State. “The question, therefore, under consideration is the same that has, as we have seen, been here tofore determined in this State, that a classifi cation of the youth of the State for school pur poses, upon any basis which does not exclude either class from equal school advantages, is no infringement of the equal rights of citizens se cured by the constitution of the State.” One year later (1872) the question as to wheth er separate schools violated the Fourteenth Amend ment was again before the New York courts.2’9 It was again held that so long as the separate schools were equal, the separation did not violate the Four teenth Amendment. In State ex rel. S tou tm eyer v. D uffy, 7 Nev. 342 (1872) the court held that the particular statute providing for separate schools for Negroes was in valid under the Nevada Constitution (not the Fed- 269 People ex rel. D ietz v. Easton, 13 Abb. (N. Y.) Pr. (N. S.) 159. Appendix — 204— eral Constitution). As to the Fourteenth Amend ment, however, the dissenting opinion pointed out that Appendix “The case of the relator was sought to be maintained on the ground that the statute was in violation of the fourteenth amendment to the constitution of the United States. I fu lly agree w ith m y associates that this position o f counsel is u tte r ly untenable ” All the judges agreed that separate schools were not in violation of the Fourteenth Amendment. They were also agreed that if equal, separate schools were provided for Negroes, the school trustees could as sign Negroes to them and white students to other schools. In 1873 the Pennsylvania court, in upholding a statute providing for separate schools, said: “In the case before us, we fail to discover that any great constitutional question is involved, or that any right of the relator, or his children, growing out of the Fourteenth Amendment of the Constitution of the United States, or under the Civil Rights Bill, has been challenged, in vaded or denied. . . .”260 The contention that separate schools violated the Fourteenth Amendment and the Civil Rights Bill was also contemporaneously decided in the negative by the highest court of Indiana in 1874.261 That court 260 Com m onwealth v. Williamson, 30 Legal Int. 406. 261 C ory V' Carter, 48 Ind. 327. — 205— interpreted the Civil Rights Bill of 1866 as grant ing only specifically named rights, not including the privilege of attending a State school : “• . . it is clear, admitting it to be valid, that it does not relate to or bear upon the right claimed in this case, for it purports only to con fer upon negroes and mulattoes the right, in every state and territory, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and the full and equal benefit of all laws and proceedings for the security of person and property as enjoyed by white citizens, and subjects them to like pains and penalties. In this nothing is left to infer ence. Every right intended is specified.” Then with regard to the Thirteenth, Fourteenth, and Fifteenth Amendments, “In our opinion, such amendments have not in any other respect imposed restrictions or lim itations upon the sovereign power of the State. From this it results that there is no limitation upon the power of the State, within the limits of her own constitution, to fix, secure, and pro tect the rights, privileges, and immunities of her citizens, as such, of whatever race or color they may be, so as to secure her own internal peace, prosperity, and happiness. “In our opinion, the classification of scholars, on the basis of race or color, and their educa tion in separate schools, involve questions of domestic policy which are within the legislative discretion and control, and do not amount to an exclusion of either class. . . . Appendix Appendix — 206— “The action of Congress, at the same session at which the fourteenth amendment was pro posed to the States, and at a session subsequent to the date of its ratification, is worthy of con sideration as evincing the concurrent and after- matured conviction of that body that there was nothing whatever in the amendment which pre vented Congress from separating the white and colored races, and placing them, as classes, in different schools, and that such separation was highly proper and conducive to the well-being of the races, and calculated to secure the peace, harmony, and welfare of the public; and if no obligation was expected to be or was imposed upon Congress by the amendment, to place the two races and colors in the same school, with what show of reason can it be pretended that it has such a compelling power upon the sov ereign and independent states forming the Fed eral Union? “We refer to the legislation of Congress rel ative to schools in the District of Columbia,- at the first session of the Thirty-Ninth Congress, and the third session of the Forty-Second Con gress.” After reviewing Congressional Acts on separate schools in the district, the opinion continued, “This legislation of Congress continues in force, at the present time, as a legislative con struction of the fourteenth amendment, and as a legislative declaration of what was thought to be lawful, proper, and expedient under such amendment, by the same body that proposed such amendment to the states for their approval and ratification.” — 207— Again in 1874, the question of separate schools being violative of the Fourteenth Amendment was decided in the negative by the California Supreme Court in W ard v. Flood, 48 Cal. 36: “• . . nor do we discover that the statute is, in any of its provisions, obnoxious to objections of a constitutional character. It provides in substance that schools shall be kept open for the admission of white children, and that the educa tion of children of African descent must be pro vided for in separate schools.” Continuing, the Court said: “. • • our duties lie wholly within the much narrowed range of determining whether this statute, in whatever motive it originated, denies to the petitioner, in a constitutional sense, the equal protection of the laws; and in the circum stances that the races are separated in the public schools, there is certainly to be found no viola tion of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with that other, and both at the common public ex pense.” The Federal Circuit Court was presented with the problem of interpreting the Fourteenth Amendment in a case involving separate schools in 1878, Ber- tonneau v. B oard o f D irectors, 3 Fed. Cases 294 (1878). There the court said: “Is there any denial of equal rights in the res olution of the board of directors of the city Appendix - 2 0 8 - schools, or in the action of the subordinate offi cers of the schools, as set out in the bill? Both races are treated precisely alike. White chil dren and colored children are compelled to at tend different schools. That is all. The state, while conceding equal privileges and advantages to both races, has the right to manage its schools in the manner which, in its judgment, will best promote the interest of all. “The state may be of opinion that it is better to educate the sexes separately, and therefore establishes schools in which the children of dif ferent sexes are educated apart. By such a policy can it be said that the equal rights of either sex are invaded? Equality of right does not involve the necessity of educating children of both sexes, or children without regard to their attainments or age in the same school. Any classification which preserves substantially equal school advantages does not impair any rights, and is not prohibited by the constitution of the United States. Equality of right does not necessarily imply identity of rights.” In People, ex rel. K in g v. Gallagher, 93 N. Y. 438 (1883) the validity of the separation of white and Negro students in the schools was before the court. The court held that if an equal separate school was established the separation was not repugnant to the Fourteenth Amendment. It was stated: “The highest authority for the interpretation of this amendment is afforded by the action of those sessions of Congress which not only imme diately preceded, but were also contemporane ous with the adoption of the amendment in ques- Appendix — 209— Appendix tion.” (The court then discusses several Acts of Congress on the District of Columbia.) “If regard be had to that established rule for the construction of statutes and constitutional enactments which require courts, in giving them effect, to regard the intent of the law-making power, it is difficult to see why the considera tions suggested are not controlling upon the question under discussion. “The question here presented has also been the subject of much discussion and considera tion in the courts of the various States of the Union, and it is believed has been, when di rectly adjudicated upon, uniformly determined in favor of the proposition that the separate education of the white and colored races is no abridgement of the rights of either.” And further: “The argument of the appellant’s counsel, which is founded upon that clause of the consti tutional amendment granting to every citizen the equal protection of the law, must fall with his main argument as being founded upon the unwarranted assumption that this protection has been denied to the relator in _ this case. Equality and not identity of privileges and rights is what is guaranteed to the citizen, and this we have seen the relator enjoy.” Similar cases arose in other States, the courts in these cases holding separate schools repugnant to some State Constitutional or statutory provision, but never holding separate schools prohibited by the - 210- Appendix Fourteenth Amendment.262 It will thus been seen that in those cases which arose during the period contemporary with the adoption of the Reconstruc tion measures, the courts were all of the opinion that the Fourteenth Amendment had no effect on the power of the States to provide separate schools for white and Negro students. 262 Clark V. Board of Directors, 24 Iowa 266 (1868) • People v. Board of Education, 18 Mich. 400 (1869) : Chase v Stephenson, 71 111. 383 (1874) ; Smith v. Board of Direc- I18 ' Dove v- InrL Scho°l Dist., 41 Iowa w 9 U f f L ^ee aIso Martin v- Board of Education, 42 W. v a . 514 (1896) u ph old in g separa tion u n der th e Fourteenth A m endm ent. - 211- Appendix SECOND SECTION Other Federal and State Court Decisions That the State May Furnish Education to White and Negro Students at Separate Institutions Corbin v. School Board, 177 F. 2d 924 (C.C.A. 4th 1949). The Court stated that the question of the validity of separate schools was foreclosed against plaintiffs “by decisions of the United States Su preme Court, and no useful purpose could be served by adding to the able discussion of the problem in the opinion below.” 84 F. Supp. 253 (W.D. Va. 1949). Brown v. Board of Trustees, LaGrange Ind. School Dish, S. D. Tex., Feb. 16, 1950, denied an injunc tion against alleged discrimination in providing separate schools. Following the Gaines and Sipuel cases, the Court concluded that maintaining sep arate schools for white and Negro students does not violate the Fourteenth Amendment. Jennings v. Board of Trustees, Hearne Ind. School Dist. (W.D. Tex., 1948, unreported). A suit to compel entrance of Negro students to white high school. A declaratory judgment was entered con sidering the Texas Constitutional provisions for separate schools and the equal protection clause of the Fourteenth Amendment. It concludes, “Under the above provisions, the defendants are required — 212— to furnish separate, but impartial and substan tially equal facilities to both Negro and white stu dents.” Pitts v. Board of Trustees, 84 F. Supp. 975 (E.D. Ark., 1949) held that the Fourteenth Amendment does not require mixed schools, and that “such a course of action” would not be “for the best in terest of the children of either race.” Boyer v. Garrett, D.C. Md., Dec. 30, 1949, held that it was proper, under the Fourteenth Amendment, for the State to provide separate recreation facil ities for the white and Negro citizens. Carter v. School Board, 87 F. Supp. 745 (E.D. Va., 1949). In holding that there was no discrimina tion in equal separate schools, the Court stated: “We find that the segregation in the public func tions of the State, including education in public schools, is exclusively a State matter and . . . is not questionable save to assure equality.” Johnson v. University of Kentucky, 83 F. Supp. 707 (E.D. Ky., 1949). Citing the Sipuel and Gaines cases the Court held separate school facilities are valid under the Fourteenth Amendment, provided the facilities are equal. Wrighten v. University of South Carolina, 72 F. Supp. 948 (E.D. S.C., 1947). The Circuit Court (unreported) returned the case to the District Court for a fact finding of equality of the separate Appendix - 2 1 3 - law school established after the first trial. In July, 1948, the trial court found that the Negro law school was substantially equal and denied Wrighten’s injunction. (Opinion unreported.) B lu ford v. Canada, 32 F. Supp. 707 (W.D. Mo. 1940; appeal dism. 119 F. 2d 779) denied damages for refusal to admit Bluford to U. of Missouri School of Journalism. S tate (B lu fo rd ) v. Canada, 348 Mo. 298 (1941) denied mandamus to admit Bluford to Missouri Journalism School. State (M ich ael) v. W itham , 179 Tenn. 250 (1942), following the G aines case, denied a mandamus to compel the admission of a Negro to Tennessee Uni versity. Appendix OTHER FEDERAL AND STATE COURT CASES (Cont’d) State Case Issue Decision Federal: W ong Him v. Callahan 119 Fed. 381 Constitutionality of sepa rate schools for Chinese chil dren. The separate school being equal, the separation does not violate the 14th Amendment. U. S. v. Buntin 10 Fed. 730 Indictment for deprivation of right to attend non-segre- gated school. Ohio statute providing for separate schools, if schools are substantially equal, does not violate 14th Amendment. Bertonneau v. Board of Directors 3 Fed. Cases 294 Constitutionality of sepa rate schools for Negroes. The separate school being equal, the separation does not violate the 14th Amendment. Alabam a: State v. Bd. of School Commissioners, 145 So. 575 (1933) To obtain admission to white school. Separation of children in schools is mandatory under statute. A laska: Sing v. Sitka School Bd., 7 Alaska 616 (1927) Constitutionality of sepa rate schools for Negroes and Indians. The separate school being equal, the separation does not violate the 14th Amendment. A p p en d ix Arkansas: State v. Board of Di rectors, 242 S. W . 545, Cert. Den. 264 U. S. 567 (1922) Maddox v. Neal, 45 Ark. 121 (1885) To obtain admission to Separation is proper and ruling of white school; plaintiff claimed school board supported by evidence will no Negro blood. not be disturbed. Constitutionality of sepa- The separate school being equal, the rate schools for Negroes. separation does not violate the 14th Amendment. A rizona: Burnside v. Douglas School, 261 Pac. 629 (1928) Dameron v. Bayless, 126 Pac. 278 (1912) Harrison v. Riddle, 36 P. 2d 984 (1934) Constitutionality of sepa- The separate school being equal, the rate school for Negroes. separation does not violate the 14th Amendment. to Same as above. Same as above. i-1Ol Mandamus to compel sep- Where substantially equal school is aration by school board. provided school board must separate pupils. California: W ard v. Flood, 48 Cal. 36 (1874) Constitutionality of sepa- The separate school being equal, the rate schools for Negroes. separation does not violate the 14th Amendment. Dist. of Columbia: W all v. Oyster, 36 App. D.C. 50 (1910) To contest being sent to Statute is not invalid for lack of no separate school when there tice. Board may assign to separate was no notice of statute pro- school, viding for separate schools. A p p en d ix OTHER FEDERAL AND STATE COURT CASES (Cont’d) State Case Issue Decision Florida: State v. Bryan, 39 So, 929 (1905) To test the constitutionality of the white university, when there was no similar Negro in stitution. A s long as Negroes have a State Nor mal, it is not unconstitutional to place the white normal in a university. Georgia: Blodgett v. Bd. of Ed., 30 S . E . 561 (1898) To restrain appropriation for white high school when there was no appropriation for Negro high school. W rong action. No benefit to Negroes by attacking white high school. Action should be to compel a high school for Negroes. Bd. of Ed. v. Cumming, 29 S. E. 488, A ff’d 175 U.S. 528 (1898) Same as above. Same as above. Indiana: Cory v. Carter, 48 Ind. 327 (1874) To contest separate schools. A classification which does not ex clude either class from equal accommo dations is no infringement of rights. Greathouse v. School Board, 151 N . E . 411 (1926) To prevent construction of separate high school as un lawful expenditure. The separate school being equal, the separation does not violate the 14th Amendment. A p p en d ix State v. Gray, 93 Ind. 303 (1884) State v. Grubbs, 85 Ind. 213 (1882) State v. W irt, 177 N . E . 441 (1931) K ansas: Reynolds v. Board of Education, 72 Pac. 274 (1903) Richardson v. Board of Education, 72 Kan. 629 (1906) W right v. Board of Education of Topeka, 284 Pac. 363 (1930) Kentucky: Board of Education v. Bunger, 41 S. W . 2d 931 (1931) To obtain admission to The constitutionality of the law for white high school. the establishment of separate schools for white and Negro children is settled. To compel town to organ ize school for Negroes. To require Negro to attend near-by separate school was proper. To contest an alleged dis crimination in separate schools. Organization of separate schools must not result in denying equal privileges; but here no denial is shown. To test constitutionality of separate schools. Same as above. To prevent transfer to Ne- Separate schools,_ substantially equal gro school because plaintiff are constitutional; inequality shown by had to pass white school to plaintiff, reach Negro school. To contest the establish- Board of Education has the power to ment of separate schools. establish separate schools. Separate schools do not violate the 14th Amendment. Same as above. to h—1 - 3 A p p en d ix State_______ Case___________________________ Issue Decision Kentucky— Cont’d. Daviess Co. Bd. v. Johnson, 200 S. W . 313 (1918) Grady v. Bd. of Educa tion, 147 S. W . 928 (1912) Mullins v. Belcher, 134 S. W . 1151 (1911) OTHER FEDERAL AND STATE COURT CASES (Cont’d) Prowse v. Board of Education, 120 S. W . 307 (1909) M aryland: Williams v. Zimmer- To obtain admission to Negro student cannot be admitted to man, 192 Atl. 353 white school. white school; substantially equal Negro (1937) school being provided. Massachusetts: Roberts v. City of Bos- To obtain admission to a School Board has the power to sep- ton, 5 Cush. (M ass.) white school. arate Negro and white students. A d- 198 (1849) mission denied. To obtain identical facil ities. Facilities need not be identical if they are equal. To contest the establish ment of separate schools. Board of Education has the power to establish separate schools. To test constitutionality of separate schools. To contest the establish ment of separate schools. The separate schools being equal, the separation does not violate the 14th Amendment. Board of Education has the power to establish separate schools. to OO A p p en d ix M ississippi: Barrett v. Cedar Hill S. D., 85 So. 125 (1920) To contest bond issue for consolidated school because discriminatory. Since there are ample substantially equal schools for Negroes they cannot contest establishment of school for whites. Bond v. Tij Fung, 114 So. 332 (1927) To obtain admission of Chi nese boy in white school. The separate school being equal, the separation does not violate the 14th Amendment. Bryant v. Barnes, 106 So. 113 (1925) To contest an alleged dis crimination in establishing school districts. Court will prohibit discrimination be tween races in the operation of the schools, but no discrimination is shown by separation. to i—1<© Chrisman v. Town of To test the constitutionality Brookhaven, 70 Miss, of separate schools. 477 (1893) The separate school being equal, the separation does not violate the 14th Amendment. M issouri: Lehew v. Brummell, To set up discrimination Schools being substantially equal 15 S. W . 765 (1891) between white and Negro there was no discrimination. schools. State v. Cartwright, 99 S. W . 48 (1907) To test constitutionality of separate schools. Separate schools do not violate 14th Amendment. A p p en d ix OTHER FEDERAL AND STATE COURT CASES (Cont’d) State Case Issue Decision New Y o rk : People v. Gallagher, 93 N . Y . 438 (1883) To contest separate schools. When statute provides for separate, equal schools, excluding Negroes from white schools is constitutional. People v. School Board 161 N. Y . 598 (1900) Same as above. Same as above. People v. Easton, 13 Abb. (N . Y .) Pr. N . S. 160 (1872) Same as above. Same as above. Dallas v. Fosdick 40 How. Prac. 249 (1869) Same as above. Same as above. North Carolina : Bonitz v. Trustees, 70 S. E . 735 (1911) To test constitutionality of tax for white schools only. Separate schools are constitutional when substantially equal hence tax must be construed as applying to both white and Negro schools. Johnson v. Bd. of Edu cation, 82 S. E . 832 (1914) To contest constitutionality of separate schools. Advantages being equal separate schools are constitutional. A p p en d ix Lowery v. Seh. Trus- To contest alleged discrim- tees, 52 S. E. 267 ination in separate schools. (1905) McMillan v. School Committee, 107 N . C. 609 (1890)_____________ North Carolina— Cont’d. W hitford v. Bd., 74 S. E. 1014 (1912) Puitt v. Gaston Co., 94 N . C. 709 (1886) Smith v. Robersonville, 53 S. E. 524 (1906) To compel school committee to admit Negroes. To get interpretation of constitutional provisions of separate schools. To test constitutionality of separate schools. To contest alleged discrim ination in separate schools. N evada: State v. Duffy, 7 Nev. To restrain board from sep- 842 (1872) arating white and Negro stu- ________________ _ __________ dents._____________ Ohio: State v. Bd. of Educa- To contest alleged discrim- tion, 7 Ohio Dec. 129 ination in separate schools. (1876) Separate schools, substantially equal, are constitutional; no discrimination shown. Statute requiring separate schools was binding on Committee. Statute providing for substantially equal school would be constitutional. Advantages being equal, separate schools are constitutional. Separate schools, substantially equal, are constitutional; no discrimination shown. The separate school being equal, the separation does not violate the 14th Amendment. Separate schools, substantially equal, are constitutional; no discrimination shown. State v. McCann, 21 To contest separate schools. Establishment of separate schools (Jhio St. 198 (1871) _________________ ____________________substantially equal is constitutional. to to Appendix OTHER FEDERAL AND STATE COURT CASES (Cont’d) State Case Issue Decision Oklahoma: School District v. Board, 275 Pac. 292 (1928) To recover State Aid Funds from Board of County Com missioners. Separate schools with like conditions must be provided and impartially main tained. Jumper v. Lyles, 185 Pac. 1084 (1921) To prevent certain schools being designated Negro schools. The Board has the power to deter mine which separate school shall be at tended by white or Negro students. State v. Albritton, 224 Pac. 511 (1924) To test constitutionality of separate schools. Facilities being substantially equal, separate schools are constitutional. Pennsylvania: Commonwealth v. W il liamson, 30 Leg. Int. 406 (Pa. 1873) To contest exclusion from public schools. Under statute if twenty Negro chil dren appeared for admission a separate school may be established. South Carolina: Tucker v. B lease, 81 S. E . 668 (1914) To prevent exclusion of Negro from white school. School Board may set up separate school for these persons and if substan tially equal it is constitutional. Tennessee: Greenwood v. Rick man, 235 S. W . 425 (1921) To test separate schools as discriminatory, for tax pur poses. W hen equal opportunities are given in free schools there is no discrimina tion in taxes. V irginia: Eubank v. Boughton, To compel admission to 36 S. E . 529 (1900) white schools. W est V irgin ia : Martin v. Board of Ed- To test constitutionality of ucation, 26 S. E . 348 separate schools. (1896) The duty is upon the school board to provide separate schools. Admission denied. The separate school being equal, the separation does not violate the 14th Amendment. - 2 2 4 - Appendix TH IRD SECTION A N N O U N C E M E N T OF AP P R O V A L OF NEGRO L A W SCHOOL B Y A M E R IC A N B A R ASSOCIATION A M E R IC A N B A R ASSOCIATION Section of Legal Education and Admissions to the Bar September 14, 1949 Dean Ozie Harold Johnson Texas State University For Negroes School of Law Austin, Texas My dear Dean Johnson: This will advise you that your school was granted provisional approval, subject to an annual inspection until full approval be granted, at the annual meet ing of the American Bar Association in St. Louis last Thursday, September 8th. This approval was granted upon the recommendation of the Council of the Section of Legal Education and Admissions to the Bar. Our heartiest congratulations not only on the ap proval but on the splendid record which you have made to date. Respectfully yours, (Sgd) JOHN G. H E R V E Y , Adviser. - 2 2 5 - Appendix STATEMENT OF AMERICAN BAR ASSOCIATION REGARDING APPROVAL OF NEGRO L A W SCHOOL A M E R IC A N BAR ASSOCIATION Section of Legal Education and Admissions to the Bar March 9, 1950 Dean Ozie Harold Johnson Texas State University for Negroes School of Law Houston, Texas My dear Dean Johnson: I have just received copy of catalogue of the Uni versity of Texas Law School, made a comparison with that of your school, and the thought occurred to me that you probably may want to make some mention in your new catalogue of approval of your school by the American Bar Association. No objec tion would be made to the inclusion of a statement in your catalogue that “The school is approved by the American Bar Association.” I advised you last September that the school had been granted provisional approval by the House of Delegates subject to an annual inspection until full approval be granted. So far as it affects your school the distinction between provisional approval and full approval is a technical one. The standards ex acted are identical whether approval be provisional or full. This for the reason that the distinction was created some years ago when applications came be- - 226- fore the Council from law schools which were not at tached to established universities or colleges or which did not have endownment funds. You can appreciate that the absence of an endownment fund and the ab sence of attachment to an established institution can influence scholarship standards. In that situation the Council voted to grant provisional approval and watch for a period of time to ascertain what in fluence, if any, was had on scholarship standards. The policy of the Council since that date, however, has been to recommend provisional approval of ap plicant schools which are found to be in full compli ance with the standards and to make annual inspec tions until full approval be granted. This was done in the case of your school. Like action was taken as re spects the University of New Mexico Law School and the University of California Law School at Los Angeles. The Council found your school not only to be in full compliance with its standards but to exceed those standards in many respects. We have no doubt but that your school will continue to comply and your situation is in no way similar to that of those schools which have no endowment fund or are not parts of established, accredited institutions. Thus I can as sure you that no objection would be taken, as stated above, to the reference indicated in future imprints of your catalogue. Respectfully yours, JOHN G. H E R V E Y , Adviser. Appendix - 2 2 7 - Appendix A N N O U N C E M E N T B Y AM ER ICAN ASSOCIATION OF L A W SCHOOLS TH A T THE NEGRO L A W SCHOOL M ET ITS STANDARDS Chicago, Illinois December 29, 1949 The School of Law of the Texas State University for Negroes applied for admission. The Committee has investigated its qualifications and finds that the school complies with our requirements and stand ards at this time. In view, however, of the pendency in the Supreme Court of a case which may well re examine the validity of the constitutional test for such an institution as hitherto understood, the Com mittee and the school have agreed that action on the application be deferred. For the Executive Committee of the Association of American Law Schools. (Sgd) F. D. G. RIBBLE Secretary-Treasurer CERTIFICATE OF T E X A S SUPREME COURT CON CERNING THE ADM ISSION TO THE BAR OF H E N R Y E. DOYLE THE SUPREME COURT OF TEXAS I, GEO. H. TEMPLIN, Clerk of the Supreme Court of Texas, do hereby certify that the records of this office show that Henry E. Doyle took and suc cessfully passed the State Bar Examination in Oc tober, 1949, and was duly admitted and licensed as an attorney and counselor at law by the Supreme Court of Texas on the 1st. day of December, 1949. ^ I further certify that the records on file in this office show that the said Henry E. Doyle was a stu dent of the Law School of The Texas State Univer- Appendix — 228— sity for Negroes, having begun his studies in said University on September 10, 1947. IN TESTIMONY WHEREOF, Witness my hand and the seal of the Supreme Court of Texas at the City of Austin, this, the 6th day of March, 1950. (Sgd) GEO. H. TEM PLIN, [Seal] Clerk of the Supreme Court of Texas. A N S W E R OF A T T O R N E Y G E N E R A L OF T E X A S TO R EQ U EST OF F E D E R A L COUNCIL OF CHURCHES FOR CO NSENT TO FILE AM ICUS CU RIAE BRIEF December 28, 1949 Hon. Charles H. Tuttle 15 Broad Street New York 5, N. Y. Dear Mr. Tuttle: Re: Sweatt v. Painter, et al. This will acknowledge your request for our con sent to your filing in the above case an amicus curiae brief on behalf of The Federal Council of Churches. Your proposed brief undertakes to support the con tention of the petitioner, Heman Marion Sweatt, that it is unconstitutional for State governments to pro vide separate schools for students of the white and Negro races even if the separate facilities are equal. Your brief, purporting to speak for all of the Council’s member denominations (except the Pres byterian Church, which “disassociated” itself from the brief) contains and undertakes to support the following statement: “The Federal Council of the Churches of Christ in America hereby renounces the pat- - 2 2 9 - tern of segregation in race relations as unnec essary and undesirable and a violation of the Gospel of love and human brotherhood. . . As my First Assistant, Mr. Joe R. Greenhill, told you by telephone, we will consent to your filing the brief if you will add thereto a disclosure of the fact that the religious denominations represented by the Federal Council maintain separate churches, sep arate church schools, separate denominational col leges, and segregated congregations for white and Negro citizens in Texas and fourteen other Southern States. On the point you seek to cover as to “necessity and desirability” of separate physical facilities, your practice is equally as important as your preachment, and I would not voluntarily consent to your presen tation of the latter without a full and frank disclos ure of the former. Some of these denominations have fine schools and excellent churches for white and Negro citizens in Texas, but they are separate just as the State schools are separate. The compelling reasons which caused the people of Texas to adopt such a policy in their constitution undoubtedly were and are apparent to those forming the policies of the churches. It is doubtful if the Federal Council speaks the true sentiment of the Southern congregations or the actual p ractice of the Northern congregations on this issue. Be that as it may, a full disclosure of the actual practice of the Council’s member churches in Texas should be made so the Court will have the true and complete picture. Otherwise, the Court might Appendix — 230— be led to believe from your statement of Council policy that the member churches no longer maintain separate schools and congregations in this State and that they are no longer thought to be “necessary and desirable.” In all fairness to my State, to Texas’ congrega tions of the fine churches which belong to the Federal Council, and to previous Supreme Court decisions on this subject, I must say that you are mistaken in your belief that segregation has been maintained or permitted here because of a contention of racial su periority or inferiority. It has been based solely upon the right of a State or a church to offer the same education or worship in separate schools or separate churches if the segregated system would better pre serve the peace, welfare, opportunities and happiness of a majority of both races. If you will advise the Court in your brief of the policy and practice now being followed by your mem ber churches in Texas and other Southern States, I will gladly consent to the filing of your brief. Other wise, I must decline. I wish you Godspeed in the work of the church and regret that I must differ with you in this regard. Very truly yours, (Sgd) PRICE D A N IE L Attorney General of Texas Appendix — 231— Appendix THE TEXAS POLL The Statewide Survey of Public Opinion, Austin, Texas* Austin, Texas, March 18.— The case for opening the doors of The University of Texas to Negro stu dents is making little headway in the court of public opinion. In its latest survey, The Texas Poll finds the gen eral attitude of the adult public much the same as it was two years ago. The Poll’s finding is based on comparable statewide surveys in which represent ative cross sections of the population were asked this question: “Generally, are you for or against Negroes and whites going to the same universities?” Ap-ainst March 1948 ____________ 76% Now 76% Enr _ _____ 20 20 No opinion_________ _________ 4 100% 4 100% Even the pattern of opinion by races and educa tional levels was found relatively unchanged. A comparison of the percentages favoring Negroes and whites in the same universities follows: - 2 3 2 - Appendix March 1948 Now W hites----------------------------------------- 11% 12% Negroes _________________________ 78 74 By Education: College-Trained hdults ________________________ 29% 31% High school trained_____________ 15 15 Grade school or less_____________ 17 19 The results show that only Negroes, as a group, give a majority vote to the idea of teaching both races in the same universities. A substantial min ority of college-trained adults supports this view, but the lower educational levels who make up the greater portion of the population are strongly op posed. Some who favor the general policy of barring , Negroes from the University say they would not object if one or two were admitted to the law school | or if advanced students were allowed to enroll in graduate courses not available elsewhere in Texas. But the majority of Texas adults is opposed even to \ these exceptions. In the latest survey, conducted February 20-25, The Texas Poll put these specific issues before a cross section of 1,000 adults of all walks of life: “Would you object if one or two Negro law students were allowed to study in The Univer sity of Texas at Austin?” - 2 3 3 - Appendix Negroes Whites All Would object___________ 8% 69% 60% Would not object________ 84 28 36 No opinion ______________ 8 3 4 100% 100% 100% Breakdown By Education %Who Would Not Object Adults who have been to college _________________ 47% Adults who have been to high school, but not to college____________ 33 Adults who have been no higher than grade school _____ ...______ 33 “What about Negroes who have finished col lege and want to study advanced courses that are offered nowhere else in Texas except at The University in Austin. Should they be allowed to enter the University?” Negroes Whites All Yes, they should________ 89% 34% 42% No, they shouldn’t ____ 1 60 52 No opinion_____________ 10 6 6 100% 100% 100% - 2 3 4 - Appendix Breakdown by Education %Who Vote “Yes” Adults who have been to college__________ ______ 56% Adults who have been to high school, but not to college ___________ 38 Adults who have been no higher than grade school_____________ 38 Negroes are included in each Texas Poll in their correct proportion to the white population. THE 1950 ACT OF THE TEXAS LEGISLATURE REQUIRING SEPARATION OF WHITE AND NEGRO CITIZENS IN THE STATE PARKS 1 WHEREAS, It has been the policy of the State of Texas to provide separate accommodations and facilities in the system of the State parks; and WHEREAS, The necessity for such separation still exists in the interest of public welfare, safety, harmony, health, and recreation; and WHEREAS, The State of Texas desires to con tinue separate accommodations and facilities for both white and Negro citizens; now, therefore, 1 S. B. 19, Acts 51st Leg., 1st C. S. 1950. The title is omitted in the interest of brevity. — 235— B e I t E n acted B y The L egisla ture O f The State O f T ex a s : Section 1. Separate facilities shall be furnished in the system of State parks for the white and Negro races, and impartial provision shall be made for both races. Sec. 2. The State Parks Board is authorized: (a) To make rules and regulations for the use of the State Parks and the facilities therein by the white and Negro races by providing separate parks or separate facilties within the same parks, on such basis as will furnish equal recreational opportunities and at the same time protect and preserve harmony, peace, welfare, health, and safety of the State and the community; (b) To close any park or facility or facilities or areas in the State parks where separate equal facili ties for the white and Negro races cannot be furnish ed, and to reopen them when such facilities are avail able; (c) (Omitted as not relevant here). Sec. 3. The fact that the policy of the State in requiring separate park facilities for white and Negro citizens is necessary to preserve the public peace and welfare, and to protect the privileges of both the white and Negro citizens in the use of the State parks; and the further fact that such policy should be set forth by statutory enactment giving additional powers to the State Parks Board to carry out such policy, create an emergency . . Appendix