Davis v. Prince Edward County, VA School Board Brief for Appellees

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1952

No. 191
D O R O TH Y  E. D AVIS, et  a l „

Appellants, 
v.

CO U N TY SCHOOL BOARD OF PRINCE 
E D W A R D  COU N TY, VIRG IN IA , et a l „

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

BRIEF FOR APPELLEES

T. Justin M oore 
A rchibald G. Robertson 
John W . R iely 
T. Justin M oore, Jr.

H untqn, W illiams, A nderson, 1003 Electric Building 
Gay & M oore Richmond 12, Virginia

Of Counsel Counsel for the Prince Edward
County School Authorities

J. L indsay A lmond, Jr.
Attorney General 

H enry T. W ickham
Assistant Attorney General 

Supreme Court Building 
Richmond, Virginia 

For the Commonwealth of Virginia
Dated October 9, 1952.



TABLE OF CONTENTS
Page

I. Preliminary Statement .....................................................  1

II. O pinion Be l o w ..................................... .................................-  2

III. Jurisdiction .........     2

IV. Q uestions Presented .............................................................. 2

V. Constitution and Statute Concerned............................  3

VI. Statement of the Ca s e .......................................................  3

1. The Parties ........................... -................ -.............................. 3
2. The Locale and Its Schools............................ ....................  4

3. The Su it..................................................................................  5
4. The Trial ................    6
5. The Decision ..................... ....................................................  7

VII. Summary of A rg u m en t ........................................................ 8

V III. A rgument ......................................................................... -...... 12
A. Segregation Does Not of Itself Off end the Constitution .. 12

1. Introduction..........................—...........-...........................  12
2. The Guiding Legal Principles.................................. —- 12
3. The Virginia Background ...........................................  17
4. The Psychological Issue — .................- ......— .............  21
5. The Effect of Amalgamation.......... ............................... 29
6. Conclusion .... ........... ....................... ............................. -  32

B. The Constitution Does Not Require Precipitate Action .. 33

1. The Issue.......................................................................... 33
2. The Facts..........................................................................  34
3. The Wisdom of the Court B elow ......... ........................  36

IX. Conclusion 39



TABLE OF CASES
Page

Briggs v. Elliott, 98 F. Supp. 529 (E.D.S.C. 1951) .................. 28, 37
Carr v. Corning, 182 F. 2d 14 (App. D. C. 1950) ......................  12, 22
Corbin v. County School Board, 177 F. 2d 924 (4th Cir. 1949) .....  34
Cumming v. Board of Education, 175 U. S. 528 (1899) .................. 37
Eccles v. Peoples Bank, 333 U. S. 426 (1948) .......................... 11, 36
Gebhart v. Belton,..... Del......... , ......A. 2 d .......  (Sup. Ct., August

28, 1952) ................................................................. ........................  37
Goesaert v. Cleary, 335 U. S. 464 (1948) ................. ...................  9, 16
Gong Lum v. Rice, 275 U. S. 78 (1927) .......................... .......... 8, 14
McKissick v. Carmichael, 187 F. 2d 949 (4th Cir. 1951), cert, 

denied 341 U. S. 951 (1951) .......................................................  29
McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950) .... 9, 15
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) ........   8, 15
Plessy v. Ferguson, 163 U. S. 537 (1896) .................... 8, 9, 13, 15
Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949)

9, 16
Shelley v. Kraemer, 334 U. S. 1 (1948) .............................................  13
Sipuel v. Board of Regents, 332 U. S. 631 (1938) ..................... 8, 15
Sweatt v. Painter, 339 U. S. 629 (1950) ..............................  9, 15, 28
Tigner v. Texas, 310 U. S. 141 (1940) ......................................... 9, 16

CONSTITUTIONS AND STATUTES
28 U. S. C. § 1253 ......................     2
28 U. S. C. § 2101(b) .................................     2
28 U. S. C. §2281 ..................................................................................  4
Constitution of Virginia (1902), §1 4 0 ................   3
Constitution of Virginia (1869), Art. V I I I ......................   18
Virginia Code (1950), §22-221 ........................................................... 3
Acts of Assembly of Virginia:

1952, p. 1258.......................... ...........................................................  20
1952, p. 1262........................ ............ ................................................. 19
1950, ch. 1 4 ........................................................................................ 19



PRELIM INARY STATEMENT
I.

This case presents to the Court for decision the forth­
right contention that segregation of the races in high 
school is unconstitutional even though the facilities for 
the education of both races are as equal as they can be 
made. Two companion cases1 present substantially the 
same contention. In each, the Court is asked to overrule 
established authority and to outlaw the fixed policies of 
the several States which are based on local social condi­
tions well known to the respective legislatures. The con­
tention is based on a proposal to revise the established inter­
pretation of the Fourteenth Amendment and on testimony 
given in disregard of the way of life in the localities con­
cerned.

The Appellants, who were plaintiffs below, assert also 
that, even if their primary contention fails, a court of 
equity must require immediate amalgamation of the 
schools even though substantial equality of education now 
exists in all respects except as to a school building and 
even though a new school building, better than that of the 
whites, will be in use when the next school year begins. 
They urge a strange contradiction: the application in 
equity of a harsh and unyielding rule to be applied without 
discretion.

These cases, therefore, present questions of immediate 
importance to great numbers of persons in a field where 
science is not yet reliable and individual feeling is strong.

1No. 8, Brown v. Board of Education of Topeka, and No. 101, 
Briggs v. Elliott.



2

II.

O P IN IO N  BELO W

The opinion of the three-judge District Court below (R. 
617-23) is reported in 103 F. Supp. 337.

III.

JU R ISD IC T IO N

The final decree of the Court below was filed on March 
7, 1952 (R. 623). The Petition for Appeal was filed on 
May 5, 1952 (R. 625).

The jurisdiction of this Court rests on 28 U. S. C. §1253 
and2 8 U. S. C. §2101 (b ).

IV .

Q U E S T IO N S PRESENTED

The questions presented are tw o :

1. Where equality exists between high schools for 
white and Negro as to all physical and essential ele­
ments, including buildings, equipment, transporta­
tion, curricula, quality of instruction and the like, and 
where the Court below has found as a fact that the 
evidence does not show that separate education is 
harmful to either race, does the Fourteenth Amend­
ment require this Court to strike down Virginia’s 
laws which for 80 years have provided for segregated 
education?

2. Where equality now exists between high 
schools for white and Negro as to all elements except 
the building and where the Court below has found as 
a fact that local and State authorities are moving 
with speed to complete a new building for the Negro 
which, the evidence shows, will be completed before



3

the next school session begins, does a court of equity 
lack the discretion to refrain from requiring imme­
diate interracial schooling?

W e submit that both of these questions should be 
answered in the negative.

V .

C O N S T IT U T IO N  A N D  ST A T U T E  CO N CER N ED

The Appellants seek, in the circumstances of this case, 
to invalidate Section 140 of the Constitution of Virginia 
and Section 22-221 of the Code of Virginia of 1950, as 
follow s:

“ §140. Mixed schools prohibited.— White and col­
ored children shall not be taught in the same school.”

“ §22-221. White and colored persons.— White and 
colored persons shall not be taught in the same school, 
but shall be taught in separate schools, under the 
same general regulations as to management, useful­
ness and efficiency.”

V I.

ST A T E M E N T  OF TH E CASE

1.
The Parties

The Appellants are Negro pupils of high school age (or 
their representatives) living in Prince Edward County, 
Virginia. The Appellees are the school authorities of the 
County and the Commonwealth of Virginia which inter­
vened below in support of the validity of its Constitution 
and the statute under attack.



4

2.

The Locale and Its  Schools

Prince Edward is a small county in south-central V ir­
ginia (R. 303). Its population is about 15,000. Almost one- 
third of these live in Farmville, the only incorporated 
community (R. 362). Roughly half of the population is 
white and half Negro (R. 305). The County is poor; it 
ranks among the lowest fifth of Virginia counties in aver­
age wealth per school child (R. 432; D. Ex.2 94).

There are 3 high schools in the County (R. 56, 361). 
Two are for white children and 1 for Negro. The white 
schools are Farmville, in the town on the northern bound­
ary of the County, and Worsham located near the geo­
graphical center of the County (R. 361).3 The Negro 
school is Moton now located in Farmville (R. 82). White 
children attend either Farmville High School or Worsham, 
according to their place of residence; all the Negro chil­
dren attend Moton (R. 57). In 1951, 405 children were 
enrolled at the 2 white schools and 463 were enrolled at 
Moton (D. Ex. 102).

These enrollment figures have shown a complete change 
in relationship in a very short period of time. In 1941, only 
10 years before, there were more than twice as many white 
high school students as there were Negro. The figures 
were 540 white and 208 Negro. It was only in 1947 that 
the Negro students equalled the white in number (D. Ex. 
102).

Faced with this upsurge in Negro enrollment, the local 
authorities did everything possible to keep up with the 
tide. A  survey of school needs by State authorities was

2 Exhibits introduced by the Appellees are referred to as D. E x.......
3Worsham is a small school combining- elementary and high school 

grades admittedly inferior to Farmville (R . 59; D. Ex. 97).



5
instituted by the local board in 1947 just after the war 
(R. 293). Since immediate permanent building was impos­
sible, two temporary buildings were erected at the Negro 
school (R. 295). Later another was added (R. 296). These 
doubled the available floor space (R. 146). In 1949, an 
overall school building plan was adopted with a new 
Negro high school given first priority (R. 297-8).

Construction of a proper Negro high school out of cur­
rent funds was beyond the financial ability of the County. 
Two alternatives were possible. The first was a loan from 
the State Literary Fund. But in 1949 and 1950 that was 
impossible for all the money in that fund had already been 
allocated to loans (R. 298-9). The School Board then 
planned to follow the other alternative, a bond issue 
requiring approval by the voters. This program was 
pushed along as rapidly as possible (R. 303-4). In the 
meantime, a site for the new school was selected and 
proceedings for its acquisition initiated (R. 301).

The Negro pupils, however, blocked this attempt at 
financing by a 2-week strike (R. 304-5) which their princi­
pal testified that he was unable to control (R. 134, 147). The 
local authorities persisted, however, in their efforts at fi­
nancing and by June, 1951, had obtained all the funds 
required for the construction of the new Negro high school 
(R. 309-10; D. Ex. 4).

3.

The Suit

The Appellants, however, disregarding the substantial 
efforts of the School Board in their behalf, filed their 
lengthy complaint in this suit in May, 1951. In essence, 
the complaint asserted that facilities for the Negro pupils 
were not equal to those for the white and that, even if



6

they were, segregated education was per se unconstitu­
tional (R. 1-30).

The Appellees promptly filed their answer and admitted 
that the school facilities were inferior, but pointed to their 
building program which “ is under way” and will result in 
equal facilities “ as rapidly as can be done” (R. 33). Since 
the case was of State-wide or, as the Court below noted 
(R. 44), even broader importance, the Commonwealth 
intervened as a defendant and is now here as an Appellee.

4.

The Trial

The trial was before a specially constituted District 
Court of 3 judges as required by 28 U. S. C. §2281. Evi­
dence and argument were heard for the 5 days, February 
25-29, 1952.

The Appellants produced two types of evidence. First, 
they presented testimony as to physical inequalities among 
the 3 high schools. This was done through photographs, 
statistics and a survey by an educator. They rested their 
main case on the evidence of an educator and 3 psycholo­
gists, none of whom had ever been in Prince Edward County, 
but all of whom testified that educational segregation is, in 
the abstract, bad.

The evidence for the Appellees related directly to the 
setting in which this case is presented. It first disclosed 
the history and background of education in Prince Edward 
County. This was followed by a survey of present condi­
tions and an explanation of future plans. Next, since this 
case is primarily an attack upon segregated education 
throughout the Commonwealth, a similar review was 
given to the Court as to Virginia as a whole. Finally, the



7

Court was offered the views of educators, psychologists 
and a psychiatrist that, in the circumstances existing in 
Virginia and in Prince Edward County, education of the 
races in separate high schools is better for the Negro and 
the white.

5.

The Decision

On the first question here presented, the Court below 
was very clear in its decision. Two bases were found.

First, the Court held that, as a matter of law, separate 
education is not unconstitutional. Its words w ere:

“ . . . Federal courts have rejected the proposition, in 
respect to elementary and junior high schools, that 
the required separation of the races is in law offensive. 
. . .  W e accept these decisions as apt and able prece­
dent.”  (R. 619)

Secondly, and perhaps more important, the Court found, 
as a matter of fact, that separate education did not con­
stitute discrimination. Its words were :

. . the facts proved in our case . . . potently demon­
strate why nullification of the cited sections is not 
warranted.. . . ”  (R. 619)
“ . .. we cannot say that Virginia’s separation of white 
and colored children in the public schools is without 
substance in fact or reason. W e have found no hurt 
nor harm to either race.” (R. 621-2)

W e ask this Court’s particular attention to that finding. 
Unlike the two companion cases, where little expert evi­
dence was available to the defendants, here the factual



8

case for segregation was fully presented by experts and 
the Court below found as a fact that segregation caused 
no harm.

On the second issue, the Court found that disparity 
extended beyond buildings and equipment. It found 
inequality to exist also as to curricula and transportation. 
It restrained continued inequality in these fields at once. 
It ordered the Appellees to proceed with diligence to 
complete the new Negro high school which will be ready 
by September, 1953. It refused further relief:

“ Both local and State authorities are moving with 
speed to complete the new program. An injunction 
could accomplish no more.”  (R. 623)

A  final decree was entered accordingly and from that 
decree this appeal was taken.

V II.

S U M M A R Y  OF A R G U M E N T  

A.

Segregation Does Not of Itself Offend the Constitution

Segregation in education existed at the time when the 
Fourteenth Amendment was adopted and had the approval 
o f the Congress that submitted the Amendment and a 
majority of the States in the Union at the time of its ratifica­
tion. Thereafter it was approved by this Court in Plessy v. 
Ferguson, 163 U. S. 537 (1896), and Gong Lwn v. Rice, 
275 U. S. 78 (1927). Later decisions of this Court are 
not in point, since they concern either situations where the 
State provided no instruction for the Negro but did so for 
the white ( Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 
1938; Sipuel v. Board o f Regents, 332 U. S. 631, 1948), or



9

situations where the Court found factual inequality to exist 
in circumstances which do not exist here ( McLaurin v. 
Oklahoma State Regents, 339 U. S. 637, 1950; Sweatt v. 
Painter, 339 U. S. 629, 1950).

The equal protection of the laws requires only that the 
State be reasonable in establishing the classifications in 
which its policy is to function. If Plessy v. Ferguson is to 
be re-examined, principles established by this Court for the 
equal protection determination must be followed. These 
include a consideration of the significance of the historical 
background (Goesaert v. Cleary, 335 U. S. 464, 1948) and 
of the practical setting in which the case arises ( Tigner v. 
Texas, 310 U. S. 141, 1940; Railway Express Agency, Inc. 
v. New York, 336 U. S. 106,1949).

For this purpose, Virginia history and present Virginia 
conditions are important. The basic historical facts are so 
familiar as not to require repetition. In education, Virginia 
lagged until 1920 but has since made great strides, high 
school enrollment having increased 5 times. Fifteen years 
ago, education for the white was better than for the Negro. 
For example, salary scales and average teacher training then 
were lower for the Negro ; now salaries are equal and aver­
age Negro teacher training is higher. Increasing sums are 
being spent on schools, a larger proportionate amount going 
for the Negro.

School facilities for the Negro equal the white in half of 
Virginia’s school districts and are better in one quarter. 
Future construction plans are large with more to be spent 
for the Negro than his proportionate share.

These facts indicate that the Virginia people overwhelm­
ingly believe that segregated education is proper, are willing 
to provide equality and are completely prepared to bear the 
burdens o f a dual school system.

The evidence of the Appellants disregards this Virginia



10

background. It is presented by experts unfamiliar with 
Virginia conditions or even, in general, with conditions 
existing in any segregated State. It is not based on sound 
scientific knowledge; their purported scientific “ tests”  are 
obviously unreliable. Constitutional determinations cannot 
be based on speculations which, they admit, are “ on the 
frontiers of scientific knowledge.”

On the other hand, the Appellees presented testimony of 
witnesses at least equally expert and, in addition, o f broad 
experience not only in Virginia but throughout the nation. 
Their conclusions are that, with conditions in Virginia as 
they are today, school amalgamation would do harm to the 
children of both races. They are firm in their views that the 
Negro high school child is better off in his own school than 
he would be in a mixed school. They point out that the high 
school level, with children not yet mature and the influence 
of parents strong, involves entirely different considerations 
from those at the graduate or professional level.

High school amalgamation would bring on further dif­
ficulties. All administrative opinion was that Virginia 
schools would deteriorate due to reduced financial support. 
Furthermore, the opportunities o f Negro teachers for 
employment would be drastically reduced.

In the light of all these facts, the Court below found that 
segregation in Virginia high schools was not “ without sub­
stance in fact or reason.” Its finding of fact was that segre­
gation caused “ no hurt or harm to either race.”  Its conclu­
sions were amply justified by the evidence of record and 
should be affirmed.

B .

The Constitution Does Not Require Precipitate Action

This is a narrow issue. The Court below ordered the 
Appellees to equalize curricula and transportation; that has



11

been substantially accomplished and, if the Appellants have 
any complaint, it should be addressed to the Court below 
which is fully equipped to enforce its decree.

The Court below also ordered the Appellees to proceed 
as quickly as possible with their plans to equalize buildings 
and facilities. The Appellants urge that, since the building 
will not be ready until after the end of the present school 
session, this Court should as a matter of law order amalga­
mation now in the middle of a school session, although 
segregation would then be required next year. As a sub­
sidiary argument, they urge that the Court below would have 
such difficulty enforcing any equalizing decree that segrega­
tion should be outlawed.

A  new Negro high school building is in the course of 
construction in the County. It will provide better facilities 
than any provided for the white. It w'ill be ready for 
occupancy by September, 1953.

The contention of Appellants violates fundamental equita­
ble principles (Eccles v. Peoples Bank, 333 U. S. 426, 1948). 
I f adopted, it would mean chaos in the County schools, just 
for the remainder of this school session. It would hurt the 
children of both races and help no one. The Constitution 
does not require such fruitless action.

The decree of the Court below is now being given substan­
tial compliance. There is nothing to indicate impossibility 
of enforcement. It is only when that is indicated that the 
Appellants may seek to destroy segregation on this novel 
ground.

The determination of constitutional limitations is a prac­
tical matter. The Court below acted wisely. The Appellants 
have no cause for complaint.



12

A R G U M E N T

A.

Segregation Does Not of Itself Offend the Constitution

1 .

I ntroduction

The issue so sharply presented to the Court in this case 
has come before it so often in recent years that the Court 
is quite familiar with the authoritative decisions. The Appel­
lants have pitched their case to a minor degree on the due 
process of law provision of the Fourteenth Amendment; but 
that is not a serious contention: they seek primary support 
in the clause requiring equal protection of the laws. W e shall 
look first to the specific authorities and then briefly at guid­
ing principles which this Court has held, without variance, 
to control the equal protection determination. With those 
principles in mind, we shall review the factual setting in 
Virginia and expert opinion based on those facts to show 
that segregation at the high school level provides equal pro­
tection. For it is only when the whole picture is viewed that 
the Court may reach a conclusion as to the constitutional 
reasonableness of the State action.

2.

T h e  G u id in g  L egal P r in c iple s

The Congress that submitted the Fourteenth Amendment 
to the States enacted laws dealing with segregated schools in 
the District o f Columbia (where, under the scrutiny of 
Congress, segregated education still exists).4 A  majority 
of the States in the Union when the Amendment was ratified

4See Carr v. Corning, 182 F. 2d 14, 17-18 (App. D. C. 1950).

VIII.



13

had segregated schools. It is inconceivable that, at that time, 
a serious contention could have been made that the Amend­
ment outlawed segregated schools.

These precedents are important. As the Chief Justice said 
in Shelley v. Kraemer, 334 U. S. 1 (1948) :

“ The historical context in which the Fourteenth 
Amendment became a part of the Constitution should 
not be forgotten.” (p. 23)

But they have been presented so often to this Court and are 
so ably presented now5 that no detail is required here. Nor 
need we dwell long on the cases decided by this Court relating 
directly to the issue.

It is idle to say that Plessy v. Ferguson, 163 U. S. 537 
(1896), does not support the position of the Appellees here. 
The Court’s opinion there gives direct support here:

“ The most common instance of [laws requiring segre­
gation] is connected with the establishment o f separate 
schools for white and colored children, which has been 
held to be a valid exercise of the legislative power even 
by courts o f States where the political rights of the 
colored race have been longest and most earnestly 
enforced.” (p. 544)

Indeed, the Court then faced and decided the fundamental 
issues that this case presents. The exact contentions made 
by the Appellants here, such as the “ badge of inferiority” 
argument, were presented to this Court in that case. But 
this Court dismissed those contentions in language as apt 
now as it was 50 years ago:

“ W e consider the underlying fallacy of the plaintiff’s 
argument to consist in the assumption that the enforced 
separation of the two races stamps the colored race with

*Brief for Appellees, Briggs v. Elliott, No. 101, pp. 15-16.



14

the badge of inferiority. If this be so, it is not by reason 
of anything found in the act, but solely because the 
colored race chooses to put that construction upon it. 
The argument necessarily assumes that if, as has been 
more than once the case, and is not unlikely to be so 
again, the colored race should become the dominant 
power in the state legislature, and should enact a law 
in precisely similar terms, it would thereby relegate the 
white race to an inferior position. W e imagine that the 
white race, at least, would not acquiesce in this assump­
tion. The argument also assumes that social prejudices 
may be overcome by legislation, and that equal rights 
cannot be secured to the negro except by an enforced 
commingling of the two races. W e cannot accept this 
proposition. If the two races are to meet on terms of 
social equality, it must be the result of natural affinities, 
a mutual appreciation of each other’s merits and a 
voluntary consent of individuals.” (p. 551)

It is equally idle to say that Gong Lum v. Rice, 275 U. S. 
78 (1927), provides no support for the Appellees. The Court 
there said:

“ The question here is whether a Chinese citizen of 
the United States is denied equal protection of the laws 
when he is classed among the colored races and fur­
nished facilities for education equal to that offered to
all.........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 interven­
tion of the federal courts under the Federal Constitu­
tion.” (pp. 85-6)

Nor are the cases relied on by the Appellants in point.6

«The cases cited by the Appellants on pp. 9-11 of their Brief are 
irrelevant to the determination to be made here. They concern situa­
tions where the parties seeking relief were wholly denied the right in 
question without being afforded “ separate but equal” treatment. Where 
coordinate facilities or opportunities are provided, different considera­
tions must be taken into account to reach the proper result.



15

Where the State has provided no facilities for the Negro in 
a certain field of instruction, he is entitled to admission to 
the institution in his State offering that instruction to the 
white. That is all that was decided in Missouri ex rel. Gaines 
v. Canada, 305 U. S. 337 (1938), and Sipuel v. Board of 
Regents, 332 U. S. 631 (1948). McLaurin v. Oklahoma 
State Regents, 339 U. S. 637 (1950), was a case of manifest 
harshness, and the facts there presented provide adequate 
distinction here. Only in Sweatt v. Painter, 339 U. S. 629 
(1950), was the issue presented here to any degree raised, 
and that case is no authority here for two reasons: first, as 
we shall show below, the considerations relative to education 
at the graduate level are entirely different from those bearing 
on the high school, and secondly, the Court there found 
inequality because of circumstances which have no substan­
tial bearing here and, having found inequality, did not

. “ . . . reach petitioner’s contention that Plessy v. Fergu­
son should be reexamined in the light of contemporary 
knowledge respecting the purposes of the Fourteenth 
Amendment and the effects of racial segregation.” (p. 
636)

The contention that the petitioner made there, the Appel­
lants make here. To uphold their assertion that segregation 
at the high school level is unconstitutional purely on psycho­
logical grounds would be to hold that equality can never be 
attained. The doctrine of “ separate but equal” would lose all 
force. Plessy v. Ferguson would not only be re-examined; it 
would be effectively overruled.

W e assert that the doctrine of Plessy v. Ferguson has 
today the vitality here that it had 50 years ago. W e believe 
its doctrine sound. W e believe that it will withstand re-exam- 
ination. But if it is to be re-examined, that should be done



16

in the light of the guiding principles which this Court has 
established to determine what is the equal protection o f the 
laws.

The equal protection o f the laws does not mean that all 
men at all times must receive the same treatment. The State 
is entitled to protect its people against the lunatic and the 
leper. One basic standard is established: if, in making its 
classifications, the State acts reasonably, its action meets 
the constitutional test.

The difficulties of application come with the determination 
of reasonableness. But 2 rules are clear. As Mr. Justice 
Frankfurter has said:

“ The Fourteenth Amendment did not tear history up 
by the roots. . . .”  (Goesaert v. Cleary, 335 U. S. 464, 
465, 1948)

Thus the historical background is significant; it cannot be 
disregarded.

Similarly, classifications to be measured against the equal 
protection standard are not measured in a vacuum:

“ The Fourteenth Amendment enjoins ‘the equal pro­
tection of the laws,’ and laws are not abstract proposi­
tions. They do not relate to abstract units A, B and C, 
but are expressions of policy arising out o f specific diffi­
culties, addressed to the attainment of specific ends by 
the use of specific remedies. The Constitution does not 
require things which are different in fact or opinion 
to be treated in law as though they were the same.” 
( Tignerv. Texas, 310 U. S. 141, 147, 1940)

Or again:

“ It is by such practical considerations based on ex­
perience rather than by theoretical inconsistencies that



17

the question of equal protection is to be answered.” 
(.Railway Express Agency, Inc. v. New York, 336 
U. S. 106,110, 1949)

Thus the action of the State must be viewed in the light 
of the historical background and of the present practical 
problem before the question of reasonableness can be de­
termined. When the history and the practicalities in regard 
to educational segregation in Virginia are examined, the 
reasonableness of the Virginia action is clear. The record 
abounds in evidence on these points and we shall now briefly 
review it.

3.

T h e  V ir g in ia  B ackground

Any problem involving the races in Virginia can be un­
derstood only in the light of the history of the last century. 
Violence breeds resentment in both races. The passage of 
time has removed violence and substantially removed re­
sentment in Virginia. But it would be idle to say that Vir­
ginians of both races— despite scientific tests (R. 181)— do 
not recognize that differences between them exist. Virginia 
has established segregation in certain fields as a part of her 
public policy to prevent violence and reduce resentment. The 
result, in the view of an overwhelming Virginia majority, 
has been to improve the relationship between the different 
races and between individuals of the different races.

One field in which segregation is basic Virginia policy is 
that of education. Public education at the secondary level 
does not have a long history. By the end of the War between 
the States, free schools existed but they were called the 
“pauper”  schools, the number in attendance was few and the 
facilities were miserable (R. 453). General public educa­



18

tion was initiated about 18707 Its development lagged. In 
1920 there were only 31,000 students in the Virginia public 
high schools (R. 454).

The last 30 years have been a period of phenomenal 
growth. There are now 155,000 students in Virginia’s pub­
lic high schools (R. 454). This growth has placed a severe 
strain upon the State’s economy. Conditions today are far 
from ideal, but the testimony is that Virginia has met the 
challenge.

It is true that in the early years the Negro and the white did 
not receive equal treatment. But no complaint was made to 
this Court then. When complaint is made now, substantial in­
equality no longer exists; in many cases the Negro has better 
educational facilities than the white. The record is full of 
statistics which make that clear. A  review of a few of them 
may be helpful.

Fifteen years ago, the white school term was longer than 
the Negro; today they are the same (R. 466). Then the 
average Negro high school teacher received a salary only 
70% as large as that of the white (D. Ex. 110, p. 2). Salary 
scales are now equal (R. 409, 428) and are based in part on 
training and experience. The average pay for a white high 
school teacher slightly exceeds that for the Negro. But on 
the elementary level that differential is reversed and the 
Negro receives more on the average than the white (D. Ex. 
110, p. 2; cf. D. Ex. 108, Table V I ). In 1940, 53% of the 
white teachers had 4 years of college training while only 
36% of the Negro teachers had that training; in 1950, 77% 
of the Negro teachers had 4 years of college training while 
only 62% of the white teachers met that standard (R. 442). 
The Negro teachers on the whole have better training than 
the white (R. 450). 7

7 See Constitution of Virginia of 1869, Art. VIII.



19

Virginia’s population is 77.8% white and 22.2% Negro; 
its school population is 74.3% white and 25.7% Negro (R. 
440). The total amount spent in Virginia for instruction in 
1950 was divided 76.4% for white and 23.6% for Negro 
(D. Ex. 108, Table II (a ) ) .  The amount spent for instruc­
tion has in the last 7 years increased 161% for the Negro 
as compared with 123% for the white (R. 426). Total an­
nual expenditures for public education in Virginia had 
grown from 59 millions of dollars in 1946 to 120 millions 5 
years later (D. Ex. 108, Table IX ).

After all these expenditures, the result is that today 
general instruction for the Negro is as good as or better than 
that for the white. As far as facilities go, no two buildings 
are identical. A  survey was made, however, and it was de­
termined that in 63 of Virginia’s 127 cities and counties 
facilities for Negro high school education are equal to those 
for the white and in 30 of these counties and cities they are 
or soon will be better than those for the white (R. 341-3, 
349, 621; D. Ex. 10). This the court bekw found (R. 
621).8

This tremendous program has hardly more than got under 
way. A  major source of construction money for Virginia’s 
schools is, as we stated above, the State Literary Fund. 
Loans from this fund made or approved are 48 millions of 
dollars for white projects and 16.5 millions for Negro (D. 
Ex. 108, Table X X ). In addition, in 1950, the General As­
sembly of Virginia appropriated 45 millions of dollars 
(known as the Battle Fund) as State grants for a school 
construction program (R. 430; Acts, 1950, ch. 14).9 This

8There were in Virginia at the time of the hearing below 100 counties 
and 27 cities. The cities are not included within the counties in Vir­
ginia, but are separate and coordinate parts of the State government.

9An additional 15 million was appropriated in 1952 (Acts, 1952,
p. 1262).



20

law required localities to prepare overall 4-year plans for 
school construction to be submitted to the State Department 
of Education. These reports indicate plans to spend 189 
millions of dollars on white projects and 74.5 millions on 
Negro projects (D. Ex. 108, Table X V I ). Specific projects 
included in these programs were divided 168 for the white 
and 73 for the Negro (R. 431). These statistics assume 
significance when related to each other:

W  kite Negro
Population _____________ __ :......... .....  77.8% 22.2%
School Population_______ _____—.....  74.3 25.7
Literary Fund Loans .... .......... ..... ...... 74.4 25.6
Battle Fund Plans (Dollars) ------ ...... 71.7 28.3
Battle Fund Plans (Projects) ..... .... . 69.7 30.3

The conclusions which must be drawn from those facts 
are these:

1. Virginia has for the past decade been engaged in a 
program designed to improve its school system both as to 
physical plant and as to quality of instruction. In connection 
with this program a very substantial and successful effort 
has been made to eliminate inequalities between the races. 
As a result, the general level of instruction in the Negro 
schools exceeds that in the white.

2. Virginia has undertaken and is actively engaged in 
carrying out a well-developed plan for the further improve­
ment presently and in the immediate future of its school 
system. This program involves the expenditure of funds 
which, while not comparable to expenditures by the Federal 
government, are enormous by Virginia standards.10 In

“ Appropriations from the general fund for the operation of Vir­
ginia’s State government approximate 100 million dollars a year (Acts, 
1952, p. 1258).



21

carrying out this program Virginia is giving to the Negro 
more than his proportionate share.

3. The people of Virginia overwhelmingly believe that 
segregated education is best for all the people. This must 
be so. It is crystal clear that segregation is more expensive 
than amalgamation. Yet Virginia citizens are willing to 
pay the cost. They are firmly determined to root out factual 
discrimination; they are equally determined to follow the 
segregated course.

This was the finding of the Court below, amply supported 
by the evidence:

“ It indisputably appears from the evidence that the 
separation provision rests neither upon prejudice, nor 
caprice, nor upon any other measureless foundation. 
Rather the proof is that it declares one of the ways of 
life in Virginia. Separation of white and colored ‘chil­
dren’ in the public schools of Virginia has for genera­
tions been a part of the mores of her people. To have 
separate schools has been their use and wont.” (R. 620)

When the great majority of the people feel so certain that 
segregated schooling is desirable in the circumstances under 
which they live, in what way is it irrational or arbitrary ?

4.

T h e  P sychological  I ssue

The Appellants ignore the Virginia background; they 
say that it is immaterial (Brief, p.. 25). They thus disregard 
this Court’s admonitions that matters to be decided under 
the Fourteenth Amendment must be decided in the light of 
history and in the practical setting in which the conflict 
arises.

The testimony they presented in the Court below like the



22

tract they now offer to this Court as an Appendix to their 
brief11 discussed segregated education in the air. No definite 
facts and no particular location affect the vista of the perfect 
life to come.

They avoid the Virginia situation. That can be quickly 
demonstrated.

The Appellants presented as their principal expert wit­
nesses Drs. Brooks, Smith, Chein and Kenneth Clark. Dr. 
Brooks is the administrator of an experimental school in 
New York City (R. 170). He has had some experience in 
Georgia but none in Virginia (R. 154, 169-70). Dr. Brooks 
admitted that different localities and social conditions might 
result in different answers (R. 159), but he never thereafter 
throughout his testimony distinguished between localities. 
He concluded that segregated education was harmful and 
contrary to principles established by Virginia’s Department 
of Education (R. 157-61), although those principles were 
established with segregated education in view (R. 439-40).

Dr. Smith, a professor o f psychology at Vassar College 
(R. 179), has never lived in the South and his conclusions 
were based on “ some personal experience” and “general 
reading” (R. 194). Without any knowledge of or regard to 
Virginia conditions, he condemned segregation because it 
cut down “ on the variety of experiences”  (R. 185). He 
thought the “ official insult” o f segregation by law worse 
than the “ informal insult”  of segregation in fact (R. 199).12

11 This is fundamentally a patent attempt at the rehabilitation of their 
witnesses repudiated by the Court below. It is expert testimony given 
unsworn and without opportunity for cross-examination. The Appen­
dix is improper and should not be considered by this Court. Cf. Carr 
v. Corning, 182 F. 2d 14, 21 (App. D. C. 1950), for a proper holding 
where the situation was less blatant than here.

12 This conclusion was described by a witness for the Appellees as 
the statement of an “ idealistic person” “ strongly prejudiced on the 
side of abstract goodness” not tempered with “ common sense.” (R. 
552-3)



23

Dr. Chein was another psychologist. He has never had 
any experience in the South (R. 214, 218-9, 261-2). He sent 
out a questionnaire, called a “ comprehensive study” , to 849 
Social Scientists (R. 204) of whom there are at least 6,000 
in the United States (R. 224), and received 517 replies (R. 
204). O f these only 32 came from the 13 Southern States and 
apparently none from Virginia (R. 232). The main ques­
tion presented could be answered in only one way (R. 226); 
it was a “ shotgun” or “ blunderbuss” question (R. 554). He 
submitted his questionnaire to a group obviously too small to 
give reliable results (R. 554-5). He testified that he was 
“ n ot. . .  an authority on Virginia” (R. 217). His conclusion 
was that segregated education breeds “ feelings of inferiority 
and of insecurity” and “ a sense of guilt” (R. 208-9).

Dr. Clark, a third psychologist, is a native of the Panama 
Canal Zone. His background included 6 months at Hampton 
Institute in Virginia and a number of years as a student and 
teacher at Howard University in Washington, D. C. (R. 
245-6). His experiences at Howard so warped his judgment 
that, because o f segregation alone, his entire career was 
changed (R. 267-8).

Dr. Clark’s testimony deserves somewhat less abbreviated 
treatment than his co-witnesses for he based his conclusions 
on “ tests” . The first was the doll test; Negro children (not in 
Virginia) were asked to choose between dolls of different 
colors (R. 248-53). From the reactions he obtained, he con­
cluded that segregated education was psychologically evil 
(R. 253). The record in this case shows that another expert 
thinks that the test is “a very variable one” in which the 
administering psychologist can obtain “ a slightly controlled 
answer” (R. 519). But we need not linger on the dolls; the 
identical testimony has been proved unreliable on expert 
authority in a companion case.13

13Brief for Appellees, Briggs v. Elliott, No. 101, pp. 20-23.



24

Dr. Clark conducted one “ test”  on the Virginia scene. He 
questioned 14 of the plaintiffs who were brought from 
Prince Edward County to Richmond especially for the in­
terview (R. 273). He gave to the Court an example of the 
interview with ludicrous results (R. 280-2). The answers 
given by the children were critical of their school (R. 255- 
60). These reactions were similar to those among children 
in New England (R. 278). He concluded that the plaintiffs 
have “ an excessive preoccupation with matters of race” (R. 
260).

This is certainly far from remarkable. The plaintiffs had 
engaged in a two-week strike 10 months before and the 
pendency of this suit was a matter of intense interest in 
the County. If answers such as Dr. Clark received had not 
been given, “you should be very much surprised” (R. 555). 
Neither of Dr. Clark’s “ tests” forms a reliable basis for the 
firm scientific opinion on which constitutional issues must 
be decided.

These witnesses, basing their opinions on a lack of knowl­
edge of Virginia and in a field which, they have now so well 
stated, “ is admittedly on the frontiers of scientific knowl­
edge” (App. to Brief for Appellants, p. 18), are the Appel­
lants’ case.14 But they were by no means the only experts 
who testified before the Court below. The Appellees pre­
sented 4 educators, a psychiatrist and 2 psychologists. Here 
are their conclusions:

Dr. Howard, Virginia’s Superintendent of Public In­
struction, with 30 years of experience as a teacher and 
administrator in Virginia schools (R. 438): “ It has been 
my experience, in working with the people of Virginia, in­
cluding both white and Negro, that the customs and the

14The testimony of Dr. English (who found jokes depressing), Dr. 
Mamie Clark and Dr. Lee given in rebuttal is fragmentary, insubstan­
tial and need not be discussed.



25

habits and the traditions o f Virginia citizens are such that 
they believe for the best interests of both the white and the 
Negro that the separate school is best. . . (R. 444)

Dr. Lancaster, former State Superintendent of Public 
Instruction, now President of Longwood College, Farmville, 
Virginia (R. 463) : “ I have no evidence that segregation in 
the schools per se has created warped personalities, and so 
forth. . . .” “ But there is certainly nothing to indicate that 
[Negro students] are thwarted in their development or 
affected adversely.” (R. 472) If segregation be stricken 
down, “ the general welfare will be definitely harmed.” (R. 
472) . . there would be more friction developed.” (R. 468)
“ . . . the progress of Negro education . . . would be set back 
at least half a century. . . .” (R. 469)

Dr. Darden, former Member of Congress and Governor 
of Virginia, now President of the University of Virginia 
(R. 452) think the races separated, if given a fairly
good opportunity, are better off.” (R. 458) “ . . . given good 
schools and good teachers, the children in separate schools 
in Virginia would be better off than in mixed schools.” (R. 
459)

Dr. Stiles, Dean of the Department of Education of the 
University of Virginia, not a native Virginian and with wide 
experience in States where schools are not separate (R. 486- 
9) : In mixed schools, the Negroes “ keep to themselves” , 
“may become very aggressive . . . or . . . very submissive.” 
(R. 489-90) The Negroes are not accepted by the white 
students (R. 490) or by teachers. “ The teacher’s acceptance 
of a child . . .  is a vital factor in her ability to teach him, or 
the child’s being accepted in a group . . .  is a vital factor in 
how well he learns.” (R. 500-1) If the Negro children were 
placed in the same schools as the white, “ . . . I think they 
would be worse off at the present time.” (R. 504) “ The 
Negro child gets an opportunity to participate in segregated



26

schools that I have never seen accorded to him in non-segre- 
gated schools. He is important, he holds offices, he is accepted 
by his fellows, he is on the athletic teams, he has a full place 
there.” (R. 512)

Dr. Kelly, child psychiatrist, a native of Michigan with 
national experience and 6 years in Virginia (R. 515-6) : “ I 
think that the abrupt termination of segregation [by law] 
would make for some very vicious and very subtle forms of 
segregation. . . .” (R. 523) “ When the two groups are 
merged, the anxieties of one segment of the group are quite 
automatically increased and the pattern of the behavior of 
the group is that the level of group behavior drops. . . . ” 
(R. 524) “ . . . given equal opportunities o f physical equip­
ment and teacher background, I could visualize no great 
harm coming to either group.”  (R. 525 )

Mr. Buck, clinical psychologist educated in Philadelphia’s 
mixed public schools and with a broad Virginia experience 
(R. 530-4) : “ I don’t think that any thoroughly objective 
and sufficiently large study [of the effect of segregated 
schools] has ever been done.”  (R. 539) “ I do not”  think it 
would be possible for the Negro child to obtain general 
acceptance by white teachers and students (R. 537-8). “ I do 
not know of any instance in history where a social ill was 
corrected by coercion or by a dramatic or sudden change, 
where the results were beneficial to either group or both 
groups.” (R. 536)

Dr. Garrett, Chairman of the Department o f Psychology 
of Columbia University, a leading national authority under 
whom Dr. Chein and Dr. Clark studied, a native Virginian 
and a graduate of a Virginia College (R. 545-8) : “ So long 
as the facilities which are allowed are equal, the mere fact 
of separation does not seem to me to be, in itself discrimi­
natory.” (R. 550) “ It seems to me that in the State of 
Virginia today, taking into account the temper of its people,



27

its mores, and its customs and background, that the Negro 
student at the high school level will get a better education 
in a separate school than he will in mixed schools.” (R. 555) 

It will not do to say, as the Appellants do (Brief, p. 23), 
that the witnesses for the Appellees admitted that segrega­
tion is harmful. They did not do so in the overall Virginia 
surroundings. Dr. Garrett made his position completely clear 
on this point:

“ What I said was that in the state of Virginia, in the 
year 1952, given equal facilities, that I thought, at the 
high school level, the Negro child and the white child—  
who seem to be forgotten most of the time— could get 
better education at the high school level in separate 
schools, given those two qualifications: equal facilities 
and the state of mind in Virginia at the present time.

* * *
“ If a Negro child goes to a school as well-equipped 

as that of his white neighbor, if he had teachers of his 
own race and friends of his own race, it seems to me he 
is much less likely to develop tensions, animosities, and 
hostilities, than if you put him into a mixed school 
where, in Virginia, inevitably he will be a minority 
group. Now, not even an Act of Congress could change 
the fact that a Negro doesn’t look like a white person; 
they are marked off, immediately, and I think, as I have 
said before, that at the adolescent level, children, being 
what they are, are stratifying themselves with respect 
to social and economic status, reflect the opinions of 
their parents, and the Negro would be much more likely 
to develop tensions, animosities, and hostilities in a 
mixed high school than in a separate school.” (R. 568-
9)

Like the witnesses for the Appellants, these experts pre­
sented by the Appellees are eminent men. They do not stand 
alone; they are quite representative of a great number of 
experts not available for presentation to the Court below.



28

This Court is now presented with the conclusions of other 
outstanding scholars who give unquestioning support to 
their views.15

The Court below was plainly justified in its finding that 
the Appellants’ evidence did not overbalance that for the 
Appellees on this phase of the case (R. 619). That is almost 
all that need be said. But one further facet of the expert 
testimony should be mentioned. Here, as in Briggs v. Elliott, 
it is urged that the factors which this Court found determi­
native in Sweatt v. Painter, 339 U. S. 629 (1950), are 
equally determinative here (Brief, p. 22).

Judge Parker disposed o f this contention in a most ad­
mirable manner in his opinion in Briggs v. Elliott (98 F. 
Supp. 529, 535, E. D. S. C. 1951; Record on appeal, pp. 
185-6). In this case, his views are supported by expert 
testimony:

Dr. Stiles: “ I think as people are more alike in their adult 
status and in their cultural attainments there is a greater 
chance of . . . mutual acceptance.”  . . the problem in the 
high school level is accentuated by the attitudes of parents.”  
“ I think [the high school] would be the most difficult level 
at which to bring about the abolition of segregation.” (R. 
493)

Dr. Lancaster: “ I think it has been pretty clearly brought 
out that we have a state of maturity that is obtained, cer­
tainly on the graduate and professional levels, where there 
is far more tolerance than there is among children. . . .”  
(R. 468)

Dr. Garrett: “ . . . I think that graduate students . . . are 
mature enough to meet their own responsibilities and to 
decide for themselves who their friends will be . . .  so that 
it is no longer on a strictly racial basis.” (R. 565)

These expert opinions support from a psychological point 
of view the obvious fact that different sets of values obtain

15Brief for Appellees, Briggs v. Elliott, No. 101, pp. 27-35.



29

at the high school level from those in graduate schools or 
even in colleges. People do not mature with a high school 
diploma; maturity comes gradually. But nowhere is the level 
of maturity more important than in the field of race relations.

The testimony of the expert witnesses presented by the 
Appellees that, in the Virginia situation, segregated educa­
tion at the high school level is best for the individual students 
of both races is not a suggestion that Virginia may properly 
deny constitutional rights by an ex parte determination of 
what is best for the individual students. See McKissick v. 
Carmichael, 187 F. 2d 949, 953-4 (4th Cir. 1951), cert, de­
nied 341 U. S. 951 (1951). The police power is designed for 
exercise in the general welfare. The State may not, where fa­
cilities are unequal, declare that segregation is still required, 
for such a requirement offends the Constitution. But where 
facilities are equal the State is not exercising any arbitrary 
paternalism in requiring segregation for there is no dis­
crimination and where there is no discrimination State action 
must be upheld.

W e conclude therefore that psychology, a “ new science” 
(R. 547), cannot provide any satisfactory basis for a deter­
mination that segregated schooling in the Virginia back­
ground is unreasonable The consensus of social scientists, 
despite the statement of Appellants (Brief, p. 22) and their 
remarkable polemic (App. to Brief), is not as they say it is. 
At most, there is a conflict. The social traditions of half the 
nation should not be overthrown on such surmise and specu­
lation.

5.
T h e  E ffect of A m a lg a m a tio n

W e do not seek here to threaten or to coerce. We seek 
simply to show that the end of segregation by law will not 
be the millennium. W e say this with expert backing.



30

Let it be noted at the beginning that there is no precedent 
that, if high schools in Virginia are amalgamated, inter­
racial difficulties will not arise. The graduate school cases 
are not in point. As Dr. Garrett said:

“ Whenever there are just a few members of a differ­
ent racial group, they are . . . not regarded as a distinct 
minority group— there are too few of them.” (R. 565)

So far in Southern graduate institutions, the Negro is a 
rarity; it is only when the number becomes a substantial 
proportion, as it would be in high school, that the problem 
will become acute.

The main difficulty with amalgamation is that it will result 
in all children receiving a worse education. The views of 
the witnesses for the Appellees, the only ones at all familiar 
with the Virginia problem, were unanimous on this point. 
Virginians, as Dr. Howard said, would no longer permit 
sizeable appropriations for schools on either the State or 
local level; private segregated schools would be greatly 
increased in number and “ the masses of our people, both 
white and Negro, would suffer terribly.” (R. 444) Mr. 
Buck said that, in that event, he thought many white parents 
would withdraw their children from the public schools and, 
as a result, the program of providing better schools would 
be abandoned (R. 536-7). Dr. Darden was equally specific:

“ You are dealing with people who are now aware of 
the necessity of carrying the double burden to a greater 
extent than they have ever been aware in Virginia. In 
my belief, they are not o f the opinion that they are going 
to support mixed schools, and I don’t think they are 
going to appropriate the money for them.”  (R. 459)



31

So with the demise of segregation, education in Virginia 
would receive a serious setback. Those who would suffer 
most would be the Negroes who, by and large, would be 
economically less able to afford the private school.

Strangely enough, the Negro would suffer in another way. 
There are approximately 75,000 Negro teachers in the 
United States but only about 5,000 of them are employed 
in unsegregated States, a percentage, of course, much less 
than the percentage of Negroes living in those States (R. 
494). Virginia employs 22,241 teachers of whom 5,243 are 
Negro, roughly the same percentage as in the school popula­
tion (R. 450, 440). If segregation be outlawed, a great 
many Negro teachers will lose their jobs (R. 450, 456-7, 
470-1, 493-6, 537). Dr. Stiles stated the reasons very 
clearly: school superintendents in the non-segregated states 
employ Negro teachers to teach Negro children but they will 
not employ Negro teachers to teach white children (R. 494- 
5). He stated that, if segregation were to be abolished in 
Virginia, he could not recommend Negro teachers for mixed 
schools:

“ . . . it would be foolish to ignore the practical reality 
of how people feel and make a recommendation that 
you know would not work.” (R. 496)

If constitutional determinations were made on a theoreti­
cal basis, these considerations might be irrelevant. But they 
must be made, as this Court has said, on the practical basis 
of existing conditions. These factors serve to highlight the 
reasonableness of the Virginia decision under present cir­
cumstances to favor segregated high school education.



32

6.

Co n clu sion

The Court below recognized the practical considerations 
that it faced in this case and decided the case in their light. 
It said:

“ So ingrained and wrought in the texture of their 
life is the principle of separate schools, that the presi­
dent of the University of Virginia expressed to the 
Court his judgment that its involuntary elimination 
would severely lessen the interest of the people of the 
State in the public schools, lessen the financial support, 
and so injure both races. . . . With the whites compris­
ing more than three-quarters of the entire population 
of the Commonwealth, the point he makes is a weighty 
practical factor to be considered in determining whether 
a reasonable basis has been shown to exist for the con­
tinuation of the school segregation.

“ In this milieu we cannot say that Virginia’s separa­
tion of white and colored children in the public schools 
is without substance in fact or reason. W e have found 
no hurt or harm to either race. This ends our inquiry. 
It is not for us to adjudge the policy as right or wrong 
— that, the Commonwealth of Virginia 'shall determine 
for itself.” ’ (R. 621-2)

It is difficult to add to these findings. The decisions of this 
Court support segregation in schools. The sole legal ques­
tion is whether such segregation constitutes a reasonable 
classification. In the Virginia background, expert opinion 
is that segregation at the high school level is better for the 
children of both races. If the schools were amalgamated, 
the result would be that the children would not be helped but 
hindered in their attempt to gain an education for living. 
Segregation at the high school level is thus clearly reason­
able.



33

W e submit, therefore, that segregation of children be­
tween the races in Virginia high schools does not of itself 
offend the Constitution.

B.

The Constitution Does Not Require Precipitate Action

1 .

T h e  I ssue

W e assume for this portion of our argument that this 
Court holds, as it rightly should, that segregation of the 
races in high school does not without more violate constitu­
tional limitations. W e pass then to the question whether, 
since facilities which are to be equalized in the immediate 
future are, however, presently unequal, the Court below as 
a court of equity could not in its discretion refuse to order 
immediate school amalgamation.

This issue is a narrow one. The Appellees admitted be­
low that the buildings and related facilities for the Negro 
were not as good as those for the white, though they pointed 
to their building plans to equalize (R. 32-3). In addition, 
the Court below found inequality as to curricula and trans­
portation (R. 622-3) and ordered immediate equalization in 
these two fields.

The Appellees assert here as a fact, although not of course 
with the support of the printed record, that equality now 
exists for all practical purposes as to curricula and transpor­
tation. But even if that were not true, this is not the forum 
in which that question should be argued. The Court below 
retains plenary power to deal with it; if the Appellees still 
offend, and they do not, the Appellants may obtain quick and 
effective redress from the Court below and that is the place 
for them to seek it.



34

The only question left before this Court is present in­
equality as to buildings and facilities. This inequality, unlike 
that as to curricula and transportation, cannot be corrected 
overnight. It is important that the Court understand the 
facts in this regard before a decision is reached.

2.

T h e  F acts

The Appellees admitted that the building and facilities at 
the Moton High School for the Negro children are not as 
good as those at the Farmville High School for the white. 
They are, however, better at least in some respects than 
those enjoyed by the white children at the third high school, 
Worsham. The expert witness for the Appellants admitted 
this (R. 59).

This simply points up the problem for the local school au­
thorities. It is manifestly undesirable to build 2 buildings 
every time that one is built. Even if 2 were built, the teachers 
could not be identical. Identity is therefore impossible; all 
that is possible and what meets constitutional obligations is 
“ substantial equality” , for absolute equality is “ impractical” 
( Corbin v. County School Board, 177 F. 2d 924, 928, 4th 
Cir. 1949). Obviously, under any dual system, schools for 
one race may at any particular time be slightly better in un­
important and incidental ways than schools for the other, 
the position to be reversed shortly thereafter. The same is 
equally true as between 2 schools for the same race.

The problem in Prince Edward County has been a serious 
one. As we stated above, Negro high school enrollment has 
grown out of all expectation in comparison with the white. 
In 1951, Negro high school enrollment was 223% of what 
it had been in 1941; in the same period white enrollment de­
clined 25% (D. Ex. 102). Tax collections in the County



35

have doubled in that period (D. Ex. 5), yet the true wealth 
per child in the County is substantially below the average 
for the counties of the State even without regard to the 
cities (D . Ex. 108, Table X IX ) . But in local effort, the 
percentage of local wealth applied to the support of local 
government, the County ranks ninth among the 100 counties 
of the Commonwealth (R. 432; D. Ex. 108, Table X IX ). In 
the past 5 years, while methods of financing a new school 
were being actively investigated and plans for it brought to 
a head (see pp. 4-5 above), the County added 3 temporary 
buildings for the Negro school and doubled the number of 
Negro high school teachers (R. 142; D. Ex. 102).16

The Appellants must admit that the future for Negro 
high school students in Prince Edward County looks better 
than the future for white students. The County now has in 
hand almost $900,000 for the construction of a new Negro 
high school ( R. 309-10). The School Board has acquired 63 
acres of land in an advantageous location for the construc­
tion of the school (R. 301-2; D. Exs. 1-3). Architects had 
been employed and were in the course of preparation of de­
tailed plans and specifications at the time of the hearing be­
low (R. 311,330).

The new school will be a good one. It will have class­
rooms, agricultural and other vocational facilities for both 
boys and girls, auditorium, library, music rooms, gymna­
sium, locker rooms and showers, cafeteria, clinic and ad­
ministrative suite (R. 331-4; D. Exs. 8 and 9). The fa­
cilities to be provided in this building will be better than 
those provided anywhere in the County for white children 
(D. Ex. 97) and the uncontradicted testimony is to that 
effect (R. 337,383,386).

“ This tremendous growth in number of teachers over such a short 
period of course accounts for the fact that average teaching experience 
is less for the Negro than for the white (R. 388).



36

This building, providing these facilities, is not a dream 
of the future; it is now under construction. It will be ready 
for use by the time that school opens in September, 1953, 
less than 12 months from this time (R. 311, 329, 338).

3.

T h e  W isdom  of t h e  Court B elow

Despite these facts, the Appellants urge that the Court be­
low, having determined that the Constitution and statutes 
o f Virginia did not infringe upon rights guaranteed by the 
Constitution of the United States, had no discretion except 
to adopt the Draconian solution of immediate temporary 
amalgamation. They urge further that amalgamation 
should be required on a permanent basis because it may be a 
burden to the Court below to have to hear contempt proceed­
ings in connection with the enforcement of its own decree.

The Appellants seek a harsh and unyielding rule. This 
Court sits here as a court o f appeal to review the action 
taken below by a court o f equity:

“ A  declaratory judgment, like other forms of equita­
ble relief, should be granted only as a matter of judicial 
discretion, exercised in the public interest. . . .  It is 
always the duty of a court of equity to strike a proper 
balance between the needs of the plaintiff and the con­
sequences of giving the desired relief.” Eccles v. 
Peoples Bank, 333 U. S. 426, 431 (1948).

The consequences of giving the Appellants the relief de­
sired by them in this case would be chaotic. If segregation 
is not per se unlawful, in September, 1953, separate educa­
tion in Prince Edward high schools will be constitutionally 
permissible and will be required in accordance with valid 
provisions of Virginia law. What the Appellants seek is



37

amalgamation in the middle of a school year to last only for 
the rest of that year.17 Such action could not result in edu­
cational benefit. Cf. Cumming v. Board of Education, 175 
U. S. 528, 544 (1899). It would mean either that the high 
schools of Prince Edward County would have to be closed 
for the remainder of this school session or that the educa­
tional process there would be thrust into such confusion that 
schooling would become practically impossible. Revolutions 
in social structure, if ever justified by court decree, must be 
o f a permanent nature. What the Appellants ask the Court 
to do will not help the children o f either race but will hurt 
the children of both races. Such useless tumult is incon­
ceivable.

These consequences are undesirable and needless. The 
same plea was made in Briggs v. Elliott and Judge Parker 
met the issue squarely:

“ In as much as we think that the law requiring segrega­
tion is valid, however, and that the inequality suffered 
by plaintiffs results, not from the law, but from the 
way it has been administered, we think that our in­
junction should be directed to removing the inequalities 
resulting from administration within the framework 
of the law rather than to nullifying the law itself. . . . 
In directing that the school facilities afforded Negroes 
within the district be equalized promptly with those 
afforded white persons, we are giving plaintiffs all the 
relief that they can reasonably ask and the relief that

17 This is apparently substantially the result reached in Gebhart v.
Belton, ...... Del........ , ...... A. 2d........ (Sup. Ct., August 28, 1952).
There, the Supreme Court of Delaware, affirmed as not an abuse of 
discretion a chancellor’s order requiring school amalgamation but “ the 
defendants may at some future date apply for a modification of the 
order if . . . the inequalities . . . have then been removed.” W e have 
been advised by the Attorney General of Delaware that a petition for 
a Writ of Certiorari is being prepared on this particular point in that 
case and will be promptly filed in this Court.



38

is ordinarily granted in cases of this sort. . . . The court 
should not use its power to abolish segregation in a 
state where it is required by law if the equality de­
manded by the Constitution can be attained otherwise. 
This much is demanded . . .  if our constitutional system 
is to endure.”  (98 F. Supp. 529, 537; Record on appeal, 
pp. 189-90; 103 F. Supp. 920, 922-3; Record on appeal, 
pp. 304-5)

Nor is anything to be gained by urging that the Court 
below cannot properly enforce its decree. The Federal 
courts are entirely competent to handle complex problems of 
human relations; in the comparable field of labor relations, 
the reports are full o f cases where courts have been con­
cerned with the detailed enforcement of decrees dealing 
with complicated arrangements between employer and em­
ployee.18 But the best answer to the contention of the Ap­
pellants is that there is no evidence that strict adherence to 
the decree is not now being given; the finding of the Court 
below on that point is clear:

“ Both local and State authorities are moving with 
speed to complete the new program. An injunction 
could accomplish no more.” (R. 623)

There may be cases where it is apparent that a court is 
so powerless to control a condition that it may destroy the 
condition. That is not true here and argument that segrega­
tion must be destroyed because it cannot be controlled is 
irrelevant.

The consequences of giving the relief desired here by the 
Appellants would harm everyone and help no one. It would 
particularly hurt the children in school. It would result in a

“ Judge Parker made this point explicit in colloquy with counsel 
in Briggs v. Elliott, Record on appeal, p. 281.



39

lost year. Even if the constitutional principle abstractly ap­
plied suggested what the Appellants urge, practical con­
siderations show the absurdity of its application here.

The Court below wisely and constitutionally adopted the 
practical course. The Appellants have no cause for com­
plaint.

IX .
CONCLUSION

This case concerns an area where traditions and customs 
have long been fixed, where science has not yet replaced 
experience. Evolution is desirable and is occurring; revolu­
tion is not desirable and can only breed new and aggravated 
resentments more difficult to control. The law is now settled 
in accordance with principles designed for the solution of 
an intensely practical problem and the constitutional issue 
cannot be redetermined in disregard of those principles.

The Court below properly did not do so. Its decree should 
be affirmed.

Dated October 9, 1952.

Respectfully submitted,

T. Justin M oore 
A rchibald G. Robertson 
John W . R iely 
T. Justin M oore, Jr.

H unton, W illiams, A nderson, Counsel for the Prince Edward 
Gay & M oore County School Authorities

Of Counsel
J. L indsay A lmond, Jr.

Attorney General 
H enry T. W ickham

Assistant Attorney General
For the Commonwealth of Virginia