Briggs v. Elliot Appellants' Brief Opposing Motion to Dismiss or Affirm No. 816

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GImtrt nf ify? Mtufrfc States
October Term, 1951

No. 816

HARRY BRIGGS, JR., et al., 

vs.
Appellants,

R. W. ELLIOTT, Chairman, et al.,
Appellees.

A ppeal from the U nited States D istrict Court for the 
E astern D istrict of South Carolina

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS OR AFFIRM

Harold R. B oulware, 
Spottswogd W. R obinson, III, 
R obert L. Carter,
T hurgood Marshall,

Counsel for Appellants.
George E. C. H ayes,
James M. Nabrit,
A rthur D. Shores,
A. T. W alden,

of Counsel.

S upreme P rinting Co., I nc., 41 M urray Street, N. Y„ B A rclay 7-0349



Table of Cases

PAGE

Brown v. Board of Education of Topeka, 98 F. Supp.
797 ............................................................................... 4 fn

Board of Supervisors v. Wilson, 340 U. S. 909 .........  6
Gumming v. Board of Education, 175 U. S. 528 .......... 1
Gong Lum v. Bice, 275 U. S. 7 2 ....................................  1, 2, 5
McLaurin v. State Board of Regents, 339 U. S.

637 ..........................................................................1,3, 4, 5, 6
McKissick v. Carmichael, 187 F. 2d 949; cert, denied 

341 U. S. 951 ................................................................  6
Plessy v. Ferguson, 163 U. S. 537 ............................  1, 2, 5
Sipuel v. Board of Regents of the University of Okla­

homa, 332 U. S. 631...................................................  5
Smith v. Allwright, 321 U. S. 649 ............................... 3
Sweatt v. Painter, 339 U. S. 629 ................................ 1, 4, 5, 6



©imrt at %  llmtih States
October Term, 1951

No. 816

— --------------o------------------

H arry Briggs, J r., et al.,

vs.
Appellants,

R. W. E lliott, Chairman, et al.,
Appellees.

A ppeal from the United States D istrict Court for the 
E astern D istrict of South Carolina

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

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS AND MOTION TO AFFIRM

Appellees seek to avoid review of the decisions of the 
Court below by asserting: (1) that the question of the 
validity of statutes requiring segregation of the races in 
elementary and high schools can not be questioned in the 
light of the decisions of this Court in Plessy v. Ferguson, 
163 U. S. 537; Camming v. Board of Education, 175 U. S. 
528; and Gong Lum v. Bice, 275 U. S. 78; and (2) that more 
recent decisions of this Court including the cases of Sweatt 
v. Painter, 339 U. S. 629; and McLaurin v. State Board of 
Regents, 339 U. S. 637 are not applicable because the Sweatt 
case involved a law school and the McLaurin case was 
limited to graduate education.

Neither Plessy v. Ferguson, Camming v. Board of Educa­
tion, nor Gong Lum v. Rice, preclude a review of the deci­
sion in this case. Plessy v. Ferguson was presented to this 
Court on a record which itself assumed equality. The 
validity of racial segregation was not in issue in Camming 
v. Board of Education which was decided on the question 
of the impropriety of the remedy sought. In Gong Lum



v. Rice, the gravamen of the action was the objection of a 
Chinese child to being classified as a colored person for 
school purposes.

I
The opposition of the appellees seems to be that the 

Plessy v. Ferguson and Gong Lum v. Rice decisions pre­
clude the courts from considering competent testimony 
as to the unreasonableness of the racial classifications and 
the injury to the appellants and others of the class segre­
gated by governmentally imposed restrictions. It is not 
disputed that the cases relied on by appellees were decided 
without benefit of any evidence either as to the unreason- 
abless of the classifications or the injury to the citizens 
challenging the classifications. If appellees’ position is 
correct, then state imposed racial segregation is the only 
type of classification which a state is free to make without 
being subjected to the recognized tests of constitutionality. 
This would completely nullify the purpose of the Four­
teenth Amendment which was adopted for the singular 
purpose of protecting Negroes from discrimination by the 
several states.

The record in the instant case presents for the first 
time competent, uncontradicted expert testimony sufficient 
to enable this Court to make a critical analysis of the con­
stitutionality of statutes requiring racial segregation in 
elementary and high schools. No such evidence appeared 
in the records of any of the cases considered controlling 
by the appellees.

The testimony in the record in this case clearly dis­
tinguishes it from the above cited cases. If, however, the 
separate but equal doctrine of these cases is considered 
applicable then it should be re-examined in the light of 
facts now revealed for the first time in the present record.



3

“ In reaching this conclusion we are not unmindful 
of the desirability of continuity of decision in con­
stitutional questions. However, when convinced of 
former error, this Court has never felt constrained 
to follow precedent. In constitutional questions, 
where correction depends upon amendment and not 
upon legislative action this Court throughout its 
history has freely exercised its power to re-examine 
the basis of its constitutional decisions. This has 
long been accepted practice, and this practice has 
continued to this day. This is particularly true -when 
the decision believed erroneous is the application of 
a constitutional principle rather than an interpreta­
tion of the Constitution to extract the principle itself. 
Here we are applying, contrary to the recent decision 
in Grovey v. Townsend, the well established principle 
of the Fifteenth Amendment forbidding the abridge­
ment by a state of a citizen’s right to vote. Grovey 
v. Townsend is overruled.”  Smith v. AllwrigJit, 
321 U. S. 649, 665-6.

I I
The issue in the case of McLaurin v. Oklahoma State 

Regents, 339 U. S. 637, was “ whether a state may, after 
admitting a student to graduate instruction in its state 
university, afford him different treatment from other 
students solely because of his race”  (at p. 638). The unani­
mous opinion of this Court decided: “ Appellant, having 
been admitted to a state-supported graduate school must 
receive the same treatment at the hands of the state as 
students of other races”  (at p. 642).

The issue in the instant case is whether a state which 
undertakes to provide public education on the elementary 
and high school levels for its residents can satisfy the 
requirements of the equal protection clause of the Four­



4

teenth Amendment if it compels the segregation of Negro 
pupils from all other pupils. The uncontradicted testimony 
of appellants’ expert witnesses show that compulsory racial 
segregation of pupils was harmful to the segregated 
students on the elementary and high school levels and 
deprived them of educational opportunities and advantages 
equal to those enjoyed by white students.

This Court found racial separation harmful and a 
deprivation of the equal protection of the laws in the 
McLaurin and Sweatt cases based upon expert testimony 
of the nature presented at the trial of this case. In the 
majority opinion at the first hearing the court below dis­
tinguished these two cases on the grounds that they were 
meant to be applicable to only graduate and professional 
education, whereas the dissenting judge felt that rationale 
of the McLaurin and Sweatt cases should be applied in 
the disposition of this case.

In another recent case1 expert testimony similar to 
that introduced in the instant case showed the effect of 
racial segregation upon public school pupils in Topeka, 
Kansas. The three-judge court of the United States 
District Court for the District of Kansas included in its 
Findings of Fact a finding that: “ Segregation of white 
and colored children in public schools has a detrimental 
effect upon the colored children. The impact is greater 
when it has the sanction of the law; for the policy of sepa­
rating the races is usually interpreted as denoting the 
inferiority of the Negro group. A sense of inferiority 
affects the motivation of a child to learn. Segregation 
with the sanction of law, therefore, has a tendency to retard 
the educational and mental development of Negro children 
and to deprive them of some of the benefits they would 
receive in a racial integrated school system.”

1 Brown v. Board of Education of Topeka, 98 F. Supp. 797.



In its opinion the Court said: “ It is vigorously argued 
and not without some basis therefor that the later decisions 
of the Supreme Court in McLaurin v. Oklahoma, 339 U. S. 
637, and Sweatt v. Painter, 339 U. S. 629 * * * show a trend 
away from the Plessy and Lum cases.”

“  * * * If segregation within a school as in the McLaurin 
case is a denial of due process, it is difficult to see why 
segregation in separate schools would not result in the 
same denial. Or if the denial of the right to commingle with 
the majority group in higher institutions of learning as 
in the Sweatt case and again the educational advantages 
resulting therefrom, is lack of due process, it is difficult 
to see why such denial would not result in the same lack 
of due process if practiced in the lower grades.”

The court, however, was of the view that the Sweatt and 
McLaurin cases were limited to graduate and professional 
education. “ We are accordingly of the view,”  the court 
concluded, “ that the Plessy and Lum cases * * * have not 
been overruled and that they still presently are authority 
for the maintenance of a segregated school system in the 
lower grades.”

“ The prayer for relief will be denied and judgment will 
be entered for defendants with costs.”

Thus both in this case and in the Topeka case, supra, 
lower courts have concluded that the principles enunciated 
in the McLaurin and Sweatt cases are applicable to ques­
tions of equal educational opportunities at the graduate 
and professional school level only.

i n
Appellants’ rights to the equal protection of the laws 

are present and personal. Sipuel v. Board of Regents, 
supra; Sweatt v. Painter, supra; McLaurin v. Board, of



6

Regents, supra. At the time of the judgment in this case 
appellants were entitled to a decree enforcing these rights.

The only way this could have been done would have 
been to order the appellees to give to the appellants, and 
other qualified Negro students, the right to share the good 
and bad public school facilities on an equal basis without 
regard to race and color. Sweatt v. Painter, supra; Board 
of Supervisors v. Wilson, 340 U. S. 909; McKissick v. 
Carmichael, 187 F. 2d 949.

To affirm the judgment in this case would be to estab­
lish a precedent that the rationale of the Sweatt and 
McLaurin decisions could not be applied to a case involving 
elementary and high school education. An affirmance of 
the judgment in this case would also mean that appellants’ 
rights to the equal protection of the laws could be post­
poned to a future date.

Conclusion

The majority opinion of the District Court subordinated 
the individual rights of appellants to the state’s segrega­
tion policy. The rationale of the Sweatt and McLaurin 
cases, supra, was disregarded. Although this Court 
has clarified the issue as to graduate and professional 
schools, the Court has never had the opportunity to con­
sider the question as to elementary and high schools on 
the basis of a full and complete record with the issue 
clearly drawn and with competent expert testimony as 
appears in the record in this case. A clear-cut decision 
on this issue will remove all doubts in the field of public 
education.



7

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

Respectfully submitted,

Harold R. B oulware, 
Spottswood W. R obinson, III, 
R obert L. Carter,
T hurgood Marshall,

Counsel for Appellants.

George E. C. H ayes, 
J ames M. Nabrit, 
A rthur D. Shores,
A. T. W alden,

of Counsel.



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