Gebhart v. Belton Brief of Respondents on Reargument

    IN  THE

(Enurt of tlĵ  Bltttteft States
O ctober Term, 1953

No. 10

F ra n c is  B. G eb h a r t , W il l ia m  B. H orner , E u g en e  H . S h a l l - 
cross, J esse  O h r u m  S m a ll , N. M axson  T erry, J a m es  M. 
T u n n e l l , Members of the State Board of Education of the State 
of Delaware, G eorge R . M ille r , J r ., State Superintendent of 
Public Instruction of the State of Delaware, A lfred  E ugene  
P'l etc h er , G eorge Clifford  J o h n s o n , Sager T ryon , E arl 
E dward R ow les , Members of the Board of Education of the 
Claymont Special School District, H arvey E. S t a h l , and H aig 
K u p j ia n , P etitioners,

v.

E t h e l  L o u ise  B elto n , an Infant by Her Guardian ad Litem, 
E t h e l  B elto n , E lbert J am es  Cr u m pl er , an Infant, by His 
Guardian ad Litem, J o seph  Cr u m pl er , R ic hard  L eon  D avis 
and J o h n  T errell D avis, Infants by Their Guardian ad Litem, 
J o h n  W. D avis, S pen c er  W. R o b in so n , an Infant by His 
Guardian ad Litem, W il l ie  R o b in so n , S tyron  L u c ille  S a n ­
ford, an Infant, by Her Guardian ad Litem, E m m a  F o u n t a in , 
A l m e n a  A. S hort , an Infant, by Her Guardian ad Litem, J o h n  
S hort , M y r th a  D elores T rotter, an Infant, by Her Guardian 
ad Litem, H arlan  T rotter, E t h e l  B elto n , J oseph  Cr u m pl er , 
J o h n  W. D avis, W il l ie  R o b in so n , E m m a  F o u n t a in , J o h n  
S hort , and H arlan  T rotter, Respondents.

F rancis  B. G eb h a r t , W il l ia m  B. H orner, E u g e n e  H. S h a l l - 
cross, J esse  O h r u m  S m a ll , N. M axson  T erry, and J am es  M. 
T u n n e l l , Members of the State Board of Education of the State 
of Delaware, G eorge R. M ille r , J r ., State Superintendent of 
Public Instruction of the State of Delaware, G ordon F . B ie h n , 
F rederick  H. S m it h , H enry  C. M it c h e l l , and E t h e l  C. 
M cV a u g h , Members of the Board of School Trustees of 
Hockessin School No. 29, Petitioners,

v.
S h ir l e y  B arbara B u l a h , an Infant, by Her Guardian ad Litem, 

S arah  B u l a h , F red B u la h  and S arah  B u l a h ,
Respondents.

BRIEF OF RESPONDENTS ON REARGUMENT

Louis L. R edding, 
T hurgoob Marshall, 
J ack Greenberg, 

Counsel for Respondents.



I N D E X
PAGE

Preliminary .................................................................. 2
Pertinent Delaware History ........................................ 4
Conclusion ....................................................................   12

Table of Cases Cited

Helvering v. Lerner Stores, 314 U. S. 463 ..................  2
Langnes v. Green, 282 U. S. 531 ..................................  2
Parker v. University of Delaware, — Del. — 75 A.

2d 225 ................   12

Statutes Cited

2 Laws of Delaware, Cbapt. C V ..................................  7
2 Laws of Delaware, Chapt. CXLV, Revised Code of

Delaware, 1852, Chapt. CVII ..................................  4
2 Laws of Delaware, Chapt. CXLV, Sec. 8 ................  4
7 Laws of Delaware, Chapt. X C IX .............................  7
12 Laws of Delaware, Chapt. 126, adopted January 3,

1861 ............................................................................ 5
12 Laws of Delaware, Chapt. 296 ................................ 9
12 Laws of Delaware, Chapt. 336 ................................ 5
12 Laws of Delaware, Chapt. 592 ................................  6
13 Laws of Delaware, Chapt. 81.................................. 6
13 Laws of Delaware, Chapt. 555 ................................ 7
13 Laws of Delaware, Chapt. 256 ................................ 6
14 Laws of Delaware, Chapt. 612 ................................ 7
14 Laws of Delaware, Chapt. 613 ................................  7
15 Laws of Delaware, Chapt. 50, passed March 25,

1875 ............................................................................ 9
15 Laws of Delaware, Chapt. 48, passed March 24,

1875 ............................................................................ 10
16 Laws of Delaware, Chapt. 362 ............................... 10



II

Other Authorities Cited
PAGE

Biennial Message of Governor Robert J. Reynolds,
Jan. 3, 1893, New York Public Library, Document
P.133613 ..................................................................... 11

Conrad, Henry C.: History of the State of Delaware
(1908) pp. 195, 205 ....................................................  5

Delaware—A Guide to the First State (Viking Press,
1938), pp. 8, 52 .......................................................... 4,5

House Journal—State of Delaware, 1867, pp. 10-21 .. 6
Inaugural Address of Robert J. Reynolds, Governor of 

the State of Delaware, Jan. 20, 1891, New York Pub­
lic Library Document P. 12285 ............................... 10

Miller, George R. Jr.: “ Adolescent Negro Education
in Delaware”, pp. 175, 177 .......................................11,12

Powell, Walter A .: A History of Delaware (The Chris­
topher Publishing House, Boston, 1928), pp. 252,
253, 261, 262, 419 ........................................................  5, 8

Reed, H. Clay: Delaware—A History of the First
State, pp. 571, 586 ....................................................  4,, 8

Report of the Delaware Association for the Moral 
Improvement and Education of the Colored People 
of the State—February, 1868) (The Commercial 
Press of Jenkins & Atkinson, Wilmington, 1868), New 
York Public Library, Document No. P. 50318, Ap­
pendix No. 2 .............. ................................................  8

Robertson & Kirkham, Jurisdiction of the Supreme
Court of the United States (1951 ed.) §428 ............. 2

Scharf, John Thomas: History of Delaware—1609-1888
(1888), pp. 329, 330, 445, 446 ...............................4, 5, 8, 9

Strayer, Engelhart & Hart: “ Survey of the Public
Schools of Delaware” ............................................... 11

Strayer, Englehardt & H art: Service Citizens of
Delaware, Bulletin, Vol. 1, No. 1 (1919), p. 214 . . . .  11

Woodson, Carter G.: Education of the Negro Prior to 
1861, 2nd ed. (Washington, D. C. 1919), p. 101 . . . .  8



I N  T H E

ilwprpmp Qkmrt of tljp llttitpii States
October Term, 1953 

No. 10
----- --------------------o-------------------------

F rancis  B. G eb h a r t , W il l ia m  B. H orner , E u gene  H . S h a l l - 
cross, J esse O h r u m  S m a ll , N. M axson  T erry, J am es  M. 
T u n n e l l , Members of the State Board of Education of the State 
of Delaware, G eorge R. M ille r , J r ., State Superintendent of 
Public Instruction of the State of Delaware, A lfred  E ugene  
F l etc h er , G eorge Clifford  J o h n s o n , S ager T ryon , E arl 
E dward R ow les , Members of the Board of Education of the 
Claymont Special School District, H arvey E. S t a h l , and H aig 
K u p jt a n , Petitioners,

v.
E t h e l  L o u ise  B elto n , an Infant by Her Guardian ad Litem, 

E t h e l  B elto n , E lbert J am es  Cr u m pl er , an Infant, by His 
Guardian ad Litem, J oseph  Cr u m pl er , R ichard  L eon D avis 
and J o h n  T errell D a vis , Infants by Their Guardian ad Litem, 
J o h n  W. D a vis , S pencer  W. R o b in so n , an Infant by His 
Guardian ad Litem, W il l ie  R o b in so n , S tyron L u c ille  S a n ­
ford, an Infant, by Her Guardian ad Litem, E m m a  F o u n t a in , 
A lm e n a  A . S hort , an Infant, by Her Guardian ad Litem, J o h n  
S hort , M yrth a  D elores T rotter, an Infant, by Her Guardian 
ad Litem, H arlan  T rotter, E t h e l  B elto n , J oseph  Cr u m pl e r , 
J o h n  W . D avis, W il l ie  R o b in so n , E m m a  F o u n t a in , J o h n  
S hort , and H arlan  T rotter, Respondents.

F rancis  B. G eb h a r t , W illia m  B. H orner , E u g en e  H. S h a l l - 
cross, J esse O h r u m  S m all , N . M axson  T erry, and J am es M. 
T u n n e l l , Members of the State Board of Education of the State 
of Delaware, G eorge R. M ille r , J r., State Superintendent of 
Public Instruction of the State of Delaware, G ordon F, B ie h n , 
F rederick  H. S m it h , H enry  C. M it c h e l l , and E t h e l  C. 
M cV a u g h , Members of the Board of School Trustees of 
Hockessin School No. 29, Petitioners,

v.
S h ir l e y  B arbara B u l a h , an Infant, by Her Guardian ad Litem , 

S arah  B u l a h , F red B u l a h  and S arah  B u l a h ,
Respondents.

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

BRIEF OF RESPONDENTS ON REARGUMENT



2

Respondents, desiring not to repeat the thorough analy­
sis of the issues presented by petitioners in Nos. 1, 2 and 4, 
joined in the brief of petitioners in those cases. However, 
the brief for petitioners in this case has raised certain 
matters peculiar to Delaware and to the Delaware litiga­
tion before this Court, and it is to them that respondents 
briefly make their answer. Concerning matters common to 
Nos. 1, 2, 4 and 10 they continue to take the same position 
as petitioners in Nos. 1, 2 and 4.

Preliminary

In a section entitled “ Preliminary,” petitioners have 
taken the position that the validity of racial segregation in 
education is not at issue in this case. That is not so. The 
issue was raised and preserved at each and every stage of 
the proceeding : by complaint, by evidence, on appeal to 
the Supreme Court of Delaware and in response here. Peti­
tioners take the position that since there was a cross-appeal 
in Delaware raising the issue, but none here, respondents 
have abandoned it. That is incorrect. In the Supreme 
Court of Delaware the issue was raised by cross-appeal 
because counsel for respondents believed that that was the 
proper way to raise it there. In this Court, under the 
doctrine of Helvering v. Lerner Stores, 314 U. S. 463, 466 
and Langnes v. Green, 282 U. S. 531, 535, 538, it would be 
superfluous to also raise the matter by a cross-appeal.1 
Respondents may urge this Court to affirm on grounds 
other than those embraced by the Court below, and they 
have done so in timely manner. A cross-appeal could not 
pray more.

1 See also, Robertson & Kirkham, Jurisdiction of the Supreme 
Court of the United States (1951 ed.) §428.



Respondents of course recognize that this Court may 
affirm on other and narrower grounds 2 presented by the 
opinions below, but they urge that on this record and the 
finding of the Chancellor, and as a matter of law, complete 
relief in equity can only be given by a decree which reaches 
the ultimate question. Otherwise respondents and their 
successors will continue to attend school under the cloud 
of the State’s avowed threat to segregate once more when 
“ equality” in facilities is achieved; frequent litigation will 
harass and burden both sides; and the already adjudicated 
harmful effects of racial segregation will be intermittently 
inflicted on respondents.

Petitioners, at pages 6-11 of their brief, assert that the 
doctrine of white superiority and the inferior educational 
opportunities for the Negro flowing from that doctrine 
were abandoned with the ratification by Delaware, in 1901, 
of the Thirteenth, Fourteenth and Fifteenth Amendments.

We say that inferior educational opportunities for the 
Negro are shown by all the historical evidence to have con­
tinued down to the time of the facts concerning which these 
respondents complained. Such inferior treatment is of a 
piece, we submit, with the ante- and post-bellum attitude 
and practice concerning Negroes set forth in the consoli­
dated brief of petitioners in Nos. 1, 2, and 4, and respond­
ents in No. 10, pages 50-65.

2 In detail, the narrow grounds upon which this Court may affirm 
are set forth in respondents’ earlier brief No. 448, October Term, 
1952, pp. 13-19.



4

Pertinent Delaware History

Bounded on the North by Pennsylvania and, on the 
South and largely on the West, by Maryland, most of Dela­
ware’s 110 miles of length is below the Mason-Dixon 
boundary.3

In 1860, fewer than 10 per cent of the Negroes in Dela­
ware were slaves, the large majority, approximately 90 
per cent, being known as “ free colored persons.” 4 How­
ever, these “ free” persons were not entitled to vote, be 
appointed or elected to public office or give evidence in 
criminal prosecutions, unless there was no competent white 
witness. In a certain type of case a free Negro was abso­
lutely disqualified as a witness against a white man.5 
Under such restrictions, the rights given to free Negroes, 
namely, “ to hold property, and to obtain redress in law or 
equity” for injury to person or property,6 were less than 
secure.

The attitude of Delaware toward Negroes is further 
demonstrated by the fact that the popular vote for Lincoln 
in the Presidential election in November, 1860, was the 
third lowest among that for four candidates. John C.

3 Reed, H. Clay: Delaware—A History of the First State, p. 571; 
Delaware—A Guide to the First State (Viking Press, 1938), p. 8.

4 Scharf, John Thomas: History of Delaware—1609-1888
(1888), p. 330, gives the 1860 census for Delaware as: white— 
90,589; free colored—19,827; slaves—-1798, divided among the 
counties as follows:

IV kite Free
Colored

Slave

New Castle 46,355 8188 254
Kent 20,330 7271 203
Sussex 23,904 4370 1341

5 2 Laws of Delaware, Chapt. CXLV, Revised Code of Dela- 
zvare, 1852, Chapt. CV1I.

0 2 Lazes of Delaware, Chapt. CXLV, Sec. 8.



5

Breckinridge, of the Southern wing of the Democratic 
Party, who espoused continuing and protecting the institu­
tion of Negro slavery, polled a plurality, receiving almost 
twice as many votes as did Lincoln.7 In 1861, President 
Lincoln’s proposal for gradually emancipating the slaves, 
with compensation to the slaveholders, failed of acceptance 
in Delaware.8 * Early in 1861, in a letter 8 to the Governor 
of Maryland, the Governor of Delaware stated he was 
“ unable to say” whether the people of Delaware would be 
governed by their “ interest” or their “ sympathy”. While 
“ most all” of the State’s trade was with the North, “ A 
majority of our citizens, if not in all three Counties, at 
least in the two lower ones, sympathize with the South.” 
Although, the same year, the Delaware General Assembly 
declined an invitation to join the Southern states in seces­
sion,10 on January 29, 1863, it adopted a joint resolution 
stating, inter alia, “ That we do most emphatically con­
demn, and in the name and on behalf of the people of Dela­
ware, protest the Proclamation of Emancipation issued by 
the President on the first instant * * V ’11

During the War of 1861-65 many Delawareans fought 
for the Confederacy, although it should he noted that most 
who entered armed service fought to preserve the Union.12

Beginning in February, 1865, and extending over a span 
of eight years, a series of Delaware legislatures adopted

7 Conrad, Henry C .: History of the State of Delaware (1908), 
p. 195; Scharf, op. cit., p. 329; Delaware—A Guide to the First 
State, p. 52.

8 Conrad, op. cit., p. 205; Powell, Walter A .: A History of
Delaware (The Christopher Publishing House, Boston, 1928),
p. 262.

8 Powell, op. cit., pp. 252-253.
10 12 Laws of Delaware, Chapt. 126, adopted January 3, 1861.
11 12 Laws of Delaware, Chapt. 336.
12 Powell, op. cit., p. 261; Delaware—A Guide to the First State 

p. 52.



6

a succession of joint resolutions manifesting deliberate 
hostility toward the Civil War amendments to the federal 
Constitution and various acts of Federal legislation im­
plementing these amendments.

On February 8, 1865, the Delaware General Assembly 
refused to ratify the Thirteenth Amendment.13 On Feb­
ruary 16, 1866, it adopted a “ Joint Resolution on Federal 
Relations, ’’ in which it condemned the Freedmen’s Bureau’s 
extension to Delaware and “ interference” by the Federal 
Government with civil justice in the States “ by extending 
to the negro race rights and privileges for the enjoyment 
of which they are not prepared either by nature or educa­
tion” and “ which have been wisely denied them” by State 
laws. It condemned “ attempts to patch” the Federal Con­
stitution by “ acts erroneously termed amendments.” 14 
On January 1, 1867, Governor Gove Saulsbury, in a 
message15 to the legislature replete with strictures against 
Negroes, declared that the laws of Delaware have “ wisely 
denied the colored population certain rights and privileges 
accorded to white people.” He sought to justify Delaware 
laws which provided more severe criminal penalties for 
Negroes than for whites. He requested the legislature to 
reject the Fourteenth Amendment. The legislature did 
that on February 7, 1867, in a resolution in which it ex­
pressed “ unqualified disapproval” of the amendment and 
there stated its refusal to ratify.16 On March 18, 1869, 
the General Assembly in Delaware declared the Fifteenth 
Amendment “ an attempt to establish an equality not sanc­
tioned by the laws of nature or of God,” stated its un­
qualified disapproval of the measure and refused to ratify

13 12 Laws of Delaware, Chapt. 592.
14 13 Laws of Delaware, Chapt. 81.
15 House Journal—State of Delaware, 1867, pp. 10-21.
16 13 Laws of Delaware, Chapt. 256.



7

it.17 On April 11, 1873, two joint resolutions were adopted. 
One, by way of condemning the “ Supplemental Civil 
Rights Bill,” proclaimed “ unceasing opposition to making- 
negroes eligible to public offices, to sit on juries, and to 
their admission into public schools where white children 
attend.” 18 The other denounced the “ invasion” of the 
State system of local self-government by a Federal act 
enforcing the right to vote and stated that “ it is essential 
that the government of the States and of the Union shall be 
entrusted to * * * white men.” 19

The attitude of Delaware shown to be hostile to Negro 
rights generally was no less inimical to the Negro’s oppor­
tunity for education. Initial impetus to a public school 
system in Delaware came from the statute passed February 
9, 1796,20 which, out of fees accruing to 1806 (later extended 
to 1820) from marriage and tavern licenses, created a 
“ fund for establishing schools” 21 for “ the purpose of in­
structing the children of the inhabitants” of Delaware. 
This statute made no reference to color. If this was an 
inadvertent omission, before any schools were actually 
established, it was cured by the act of February 12, 1829,22 * 
which provided for divisions into school districts and for 
the establishment by voters of district schools which “ shall 
be free to all white children” of the district. Although 
Negroes had long been inhabitants of Delaware28 and as 
has been seen, sometimes were “ free”,24 no provision was 
then undertaken by the State for their education.

17 13 Laws of Delaware, Chapt. 555
18 14 Laws of Delaware, Chapt. 612.
19 14 Laws of Delaware, Chapt. 613.
20 2 Laws of Delaware, Chapt. CV.
21 Salaries of the judiciary were first deducted, the residue going 

to schools.
22 7 Laws of Delaware, Chapt. XCIX.
28 Reed, op. cit., p. 571.
24 Supra, page 4.



8

The public school system comprehended by the 1829 
law was most rudimentary. Sometimes the district tax to 
support the school was voted down for several successive 
years and there would be no school, for the State made 
appropriations only of an equivalent of the amount raised 
by local district taxation. There was no centralized con­
trol, no standardization.25 This inefficient non-compulsory 
idea continued until 1861.

Meanwhile, private efforts had started schools for 
Negroes. As early as 1801, according to one authority, a 
school was established in Wilmington for the education of 
Negroes.26 In 1824, The African School Society of Wil- 
ming'ton was founded.27 On December 27, 1866, the Dela­
ware Association for the Moral Improvement and Educa­
tion of the Colored People of the State was formed in 
Wilmington. Its first annual report,28 published in 1868, 
shows that it immediately began the establishment of 
schools for Negroes and in January, 1868, had in operation 25 * 27 28

25 Scharf, op. cit., p. 445.
20 Woodson, Carter G .: Education of the Negro Prior to 1861, 

2nd ed. (Washington, D. C., 1919), p. 101.
27 Reed, op. cit., p. 586; Powell, op. cit., 419.
28 Report of the Delaware Association for the Moral Improve­

ment and Education of the Colored People of the State—February, 
1868) (The Commercial Press of Jenkins & Atkinson, Wilmington, 
1868), New York Public Library, Document No. P 50318. See 
Appendix No. 2 of this Report, from which the following is quoted:

“This large class of our population [Negroes] are wholly ex­
cluded from the benefits of our system of public education, 
although not exempt from taxation, in some shape, for the 
public schools. While legislation thus closes against them the 
avenues of knowledge and improvement, it has visited in 
their case the crimes and offences which naturally flow from 
ignorance and degradation with excessive and cruel penalties. 
Persistence in such glaring injustice must be attended with 
grave accountability, for in the Providence of a righteous God, 
every wrong brings sooner or later its retribution.”



9

twenty-two such schools throughout the State. The report 
of the President of this Association shows that the program 
of the Association was laid before Governor Saulsbury, 
who gave hearing to it but differed from the President and 
Managers of the Association “ in judgment as regards the 
capacity of the colored man for Education.” In view of 
the known exclusion of Negroes from the benefits of the 
public school fund and the known hostile attitude of the 
Governor of the State, this excerpt from the report has 
particular significance:

“ Not only from its central location; but also as 
the seat of Government of the State, the Managers 
selected Dover as one of the first points to be se­
cured ; and they planted, under the eye of the Execu­
tive and Legislative authorities, what they hope will 
prove, in time, a Model school. ’ ’

In 1861, the General Assembly strengthened the public 
school law by requiring the school committee in each dis­
trict to raise for support of the district school a specified 
minimum amount, irrespective of the action of the voters. 
The voters might, if they chose, raise a larger amount.29 
The original school fund created under the law of 1796 was 
augmented in 1867 by an act increasing the sources of state 
revenue supplying the fund. The public school system was 
further strengthened in 1875 by an act creating a State 
Board of Education and the office of State Superintendent 
of Free Schools.30 None of these measures applied to 
Negroes. The State government had not modified the atti­
tudes evinced in the revealing series of resolutions re­
ferred to above. In Delaware, the Fourteenth Amendment 
remained unratified.

29 12 Laws of Delaware, Chapt. 296; Scharf, op. cit., p. 446.
30 15 Lazvs of Delaware, Chapt. 50, passed March 25, 1875.



10

When in 1875, a statute 81 authorized the assessment and 
collection of taxes of thirty cents per $100 on the property 
of Negroes, it provided for the ultimate turning over of 
these funds to the private Delaware Association mentioned 
above for distribution among Negro schools. The presump­
tion arising from the statute and the incomplete historical 
evidence is that the schools intended were those thereto­
fore erected or maintained by the private initiative of the 
Association, for certainly no schools had then been pro­
vided for Negroes by the State. When in 1881, the General 
Assembly appropriated the first money, $2,400, to be dis­
tributed among the schools for Negroes, it was this same 
private Association to which the State turned to allocate 
and disburse the funds.82

The history of the public school system in Delaware 
does not show unbroken progression toward betterment. 
It appears that somewhere between 1875 and 1891, the office 
of State Superintendent, with its opportunity for effectuat­
ing uniform state-wide educational procedures, curricula 
and standards, was abolished. We find the inaugural ad­
dress of the Governor, on January 20, 1891,83 submitting,

“ for the consideration of the General Assembly, the 
expediency of creating a State Superintendency of 
Public Schools in addition to the existing County 
Superintendency, the object being to harmonize our 
school system and prevent objectionable features 
arising from county differences in the general plan 
of instruction and school regulation. To the State 
Superintendent also should be entrusted the super­
vision of the colored schools and the responsible 
administration of the funds appropriated for their 
support. ’ ’ 31 32 33

31 15 Lazvs of Delaware, Chapt. 48, passed March 24, 1875.
32 16 Laws of Delaware, Chapt. 362.
33 “Inaugural Address of Robert J. Reynolds, Governor of the 

State of Delaware’', Jan. 20, 1891. New York Public Library, 
Document P. 12285.



11

Even at this date, 1891, the Negro schools were being 
operated without State guidance or surveillance.

We find the same Governor, in his biennial message 
two years later, referring to failure of progress in the 
colored schools and stating that “ it results very much from 
the fact that the laws regulating the schools of the colored 
people * * * are crude and imperfect. ’ ’ 84 * * * 88

Even the most cursory comparison of educational oppor­
tunity provided by the State of Delaware for whites and 
Negroes demonstrates that not only before 1897, but always, 
Negro education has suffered from constitutional and statu­
tory enactments which are the heritage of a slave system. 
Thus:

(a) In 1897, a constitutional provision was adopted 
which required that Negroes be excluded from schools 
attended by whites.

(b) As late as 1919, after an exhaustive survey of Dela­
ware schools by eminent educational administrators, it was 
concluded that schools for Negroes were inferior to those 
for whites.35

(c) Although “ In 1921, philanthropy in the guise of 
Pierre duPont made possible the building of 87 Negro 
schools” and “ It is interesting to contemplate what the 
status of Negro schools would have been had it not been 
for this philanthropic gesture, ” 38 as late as 1943 equality

84 “Biennial Message of Governor Robert J. Reynolds’’, Jan. 3,
1893, New York Public Library, Document P. 133613.

88 Strayer, Englehardt & Hart: “Survey of the Public Schools 
of Delaware”—Service Citizens of Delaware, Bulletin, Vol. 1, No. 1
(1919), especially p. 214.

88 Miller, George R., J r . : “Adolescent Negro Education in Dela­
ware”, p. 175. (The author of this doctoral dissertation, filed in the 
Library of Congress, is State Superintendent of Public Instruction 
in Delaware and a petitioner here.)



12

in education for Negroes in Delaware, in the words of a 
petitioner here, had “ not yet been reached.” Indeed, at 
that time, there were “ no complete 4-year high schools for 
Negroes south of Wilmington,” although “ No white child 
in the State [was] faced with this situation.” 37

(d) Still later, in 1950, it was judicially determined that
the Delaware State College for Negroes was “ woefully 
inferior” to comparable facilities set aside for white stu­
dents at the University of Delaware. Parker v. University 
of Delaware,----- Del.------ , 75 A. 2d 225.

(e) In the instant cases both courts belowr held that there 
wras inferiority in public school facilities for Negroes, as 
compared with those for white children in the communities 
involved.

The State now asserts (Petitioners’ Brief, p.10) that 
the State constitutional and statutory provisions assailed 
by respondents are “ in the cause of education of negroes, 
a long stride forward.”

The respondents, however, do not assert a claim merely 
to “ a long stride forward,” although they concede that 
realization of their claim would entail such a stride. Re­
spondents assert a constitutional right: the right to equal 
protection of the laws, and they assert that education under 
a system which is a heritage of slavery has borne, and must 
always bear, the mark of slavery.

Conclusion

In this brief in answer, we have addressed ourselves 
to certain contentions made by petitioners which were not 
dealt with in the consolidated brief, in which we have joined. 
The question of the history of Delaware which was raised

37 Id., at p. 177.



13

by petitioners presents in particular form one of the rea­
sons for affirmance of the judgment below.

Wherefore, for the reasons set forth in the consoli­
dated brief and herein, we respectfully urge that the 
judgment below be affirmed.

Respectfully submitted,

Lotus L. R edding, 
T hurgood Marshall, 
J ack Greenberg, 

Counsel for Respondents.



Supreme P rinting Co., I nc., 114 W orth Street, N. Y., BEekman 3 - 2320