Sweatt v. Painter Brief Amicus Curiae in Support of Petition for Certiorari

    nsr the

Supreme Court of the United States
October T erm, A . D. 1948.

No. 667

HEMAN MARION SWEATT,

vs.
Petitioner,

THEOPHILTTS SHICKEL PAINTER, et ad.,
Respondents.

BRIEF FOR THE CONGRESS OF INDUSTRIAL OR­
GANIZATIONS AS AMICUS CURIAE IN SUPPORT 
OF PETITION FOR CERTIORARI.

A rthur J. Goldberg,
General Counsel. 

T homas E. H arris,
Assistant General Counsel.

THEQUNTHORP-WARREN PRINTING COMPANY, 210 WEST JACKSON, CHICAGO



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This brief manifests the belief expressed in the Preamble 
as it applies to the validity of state requirements of edu­
cational segregation.

Pressing Need for a Definitive Decision by This Court.

For the first time this Court is squarely confronted with 
the question whether segregation in education, based solely 
on differences in race, satisfies the Fourteenth Amend­
ment’s requirement of “ equal protection of the laws.”  
The need for a clear-cut answer by this Court cannot be 
overemphasized. Prolonged litigation and large expendi­
tures, both by individual petitioners and by states prac­
ticing segregation, have been the direct result of the pres­
ent uncertainty as to the constitutional status of that 
practice. Negro petitioners have sought judicial relief in 
eight1 of the seventeen states which provide for separate 
school facilities by statute or constitution. Largely as a 
result of the present suit, the Texas legislature has ap­
propriated $3,000,000 for separate Negro education—fully 
one-half the total expenditure for Negro education in the 
state during the preceding third of a century.2 And plans 
for regional professional schools, obviously aimed to es­
pouse the doctrine of “ separate equality” , have been con­

1. Johnson v. Board of Trustees, No. 625 (D. C. B. D. Ky., 
1949); Louisiana ex rel. Hatfield v. Louisiana State University, 
No. 25,520 (La., 19th Jud. Dist., 1949) ; Pearson v. Murray, 169 
Md. 578, 182 Atl. 590 (1936) ; Missouri ex rel. Gaines v. Canada, 
305 U. S. 337 (1938) ; Bluford v. Canada, 32 F. Supp. 707 (Mo., 
1940), app. dism. 119 F. 2d 779 (C. C. A. 8th. 1941) ; Sipuel v. 
Board of Regents, 332 U. S. 631 (1948) ; Fisher v. Hurst, 333 U. S. 
147 (1948); McLaurin v. Oklahoma State Regents, No. 614 (U. S. 
S. Ct., 1949) ; Wrighten v. Board of Trustees, 72 F. Supp. 948 
(S. C., 1947) ; State ex rel. Michael v. Whitham, 179 Tenn. 250, 165 
S. W. 2d 378 (1942); and the present case.

2. Bullock, The Availability of Education in the Texas Sep­
arate Schools, 16 J. Negro Ed. 425, 432 (1947) ; see Wirth, the 
Price of Prejudice, 36 Survey Graphic 19, 20 (Jan., 1947).



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sidered at length, by the states involved.3 * * This Court’s de­
cision on the merits of the issue is essential so that the 
need for successive court action may be ended—and so 
that projected economic plans cannot become actual finan­
cial outlay which may serve even as a makeweight factor 
in the result reached.

Segregation in Education— A Question of First Impression 
in This Court.

In Plessy v. Ferguson, 163 U. S. 537, 550-51 (1896), a 
state statute requiring racial separation in public carriers 
was held constitutional. This Court enunciated a test of 
“ reasonableness”  and then stated:

‘ ‘ Gauged by this standard, we cannot say that a law 
which authorizes or even requires the separation of 
the two races in public conveyances is unreasonable, 
or more obnoxious to the Fourteenth Amendment than 
acts of Congress requiring separate schools for col­
ored children in the District of Columbia, the consti­
tutionality of which does not seem to have been ques­
tioned, or the corresponding acts of state legislatures 
[italics added].”

Nothing was added to this dictum in Cumming v. Rich­
mond County Board of Education, 175 U. S. 528, 543 
(1899), in which Justice Harlan carefully pointed out:

“ But we need not consider that question [the con­
stitutionality of the requirement that the white and 
colored children of the state be educated in separate 
schools] in this case. No such issue was made in the 
pleadings.”

Nor did Berea College v. Kentucky, 211 U. S. 45 (1908), 
touch the basic problem.

3. See Ball, Constitutionality of the Proposed Regional Plan for
Professional Education of the Southern Negro, 1 Vanderbilt L.
Rev. 403 (1948).



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ment of basic civil and political rights and the preser­
vation of those rights from discriminatory action on 
the part of the States based on considerations of race 
or color. Seventy-five years ago this Court announced 
that the provisions of the Amendment are to be con­
strued with this fundamental purpose in mind.” 6 7 8 9

Recent years have seen constant emphasis by this Court 
on “ the proposition that only the most exceptional cir­
cumstances can excuse discrimination on that basis [of 
race] in the face of the equal protection clause * * *.” 7 
Even such “ exceptional circumstances”  are strictly lim­
ited: “ Pressing public necessity may sometimes justify
the existence of such restrictions; racial antagonism never 
caw.” 8

This interpretation of the equal protection clause neces­
sarily condemns state systems of segregated education. 
For that clause forbids “  [distinctions between citizens 
solely because of their ancestry.” 8 States which follow 
the “ separate but equal”  line fail to realize that the con­
stitutional requirement is not merely one of equal facili­
ties, but one of equal choice of facilities. If the denial of 
that choice is based on race, it is unlawful.

The reason is simple. The basic premise “ justifying”

6. See Railway Mail Ass’n v. Corsi, 326 IT. S. 88, 94 (1945) : 
[“ The Fourteenth Amendment] was adopted to prevent state leg­
islation designed to perpetuate discrimination on the basis of race 
or color.”

7. Oyama v. California, 332 IT. S. 633, 646 (1948) ; see also 
ibid., at'page 640, referring to “ the compelling justification which 
would be needed to sustain discrimination of that nature.

8. Korcmatsu v. United States, 323 IT. S. 214, 216 (1944) 
(italics added), also stating “ that all legal restrictions which cur­
tail the civil rights of a single racial group are immediately sus­
pect.”

9. Hirabayashi v. United States, 320 IT. S. 81, 100 (1943) : 
“ For that reason, legislative classification or discrimination based 
on race alone has often been held to be a denial of equal protec­
tion.”



segregation in the Plessy case (which has been followed 
without critical appraisal ever since) is clearly false. 
Ignore the unquestionable fact that “ separate equality”  
in theory has always produced “ separate inequality”  in 
practice ;10 even assume that the segregation involves iden­
tity of facilities;11 yet it must be concluded that mere 
separation on the basis of race is unconstitutional dis­
crimination. Justice Brown, speaking for the Court in the 
Plessy case, asserted:

“ We consider the underlying fallacy of the plain­
tiff’s argument to consist in the assumption that the 
enforced separation of the two races stamps the col­
ored race with a 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.” 12 13

But the half century since that case has demonstrated 
otherwise:

“ A dual school system, even if ‘ equal facilities’ were 
ever in fact provided, does imply social inferiority. 
There is no question under such circumstances as to 
which school has the greater social prestige. Every 
authority on psychology and sociology is agreed that 
the students subjected to discrimination and segrega­
tion are profoundly affected by this experience. * * * 
These abnormal results, condoned by the implications 
of the Plessy case, deny to the Negro and Mexican 
child ‘ equal protection of the laws’ in every meaning­
ful sense of the words.” 1®

10. See particularly the Appendix to Petitioner’s Brief in Sup­
port of Petition for Writ of Certiorari in the present case.

11. Perhaps the ideal example is that of two railway cars, as 
in the Plessy type statute.

12. 163 U. S. 551 (1896).
13. Segregation in Public Schools —  A Violation of “ Equal 

Protection of the Laws,” 56 Yale L. J. 1059, 1060-61, 1062 (1947). 
The Note is heavily documented to support the conclusions reached 
in the passage here quoted.



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Many facets of Justice Harlan’s dissent in the Plessy 
case have gradually become the law of the majority of this 
Court. Only last year, Chief Justice Vinson’s opinion in 
Shelley v. Kraemer, 334 U. S. 1, 22 (1948), stated a thesis 
similar to that unsuccessfully propounded by Justice Har­
lan :

“ Equal protection of the laws is not achieved 
through indiscriminate imposition of inequalities.”

The applicability of that statement to the present situa­
tion need not be labored. Not until equal choice of schools 
is made available to white and Negro alike will the Four­
teenth Amendment be satisfied; not until then will the 
Negro cease to be branded a “ second-class”  student by 
compulsory segregation. In short, this Court should give 
its stamp of approval to Justice Harlan’s assertion that 
“ Our Constitution is color-blind.” 14

Impact of This Case: The Overruling of Plessy v. Ferguson.

Every argument here advanced against the validity of 
the Texas constitutional requirement of segregated educa­
tion is equally applicable to all other segregation based 
on race differences. The Plessy case adopted a standard 
of so-called “ reasonableness”  which permitted reference 
to “ the established usages, customs and traditions of the 
people”  and to “ the preservation of the public peace and 
good order.”  But the former criterion is a denial that 
the Civil War was ever fought. Slavery was an “ estab­
lished usage, custom and tradition,”  and it was abolished 
by the Thirteenth Amendment. When the very issue to be 
considered is whether the Fourteenth Amendment abol­
ished the “ established usage, custom and tradition”  of 
segregation, it begs the question to rely on the past history

14. Justice Harlan dissenting in Plessy v. Ferguson, 163 U. S. 
551, 559 (1896) ; see Watt and Orlikoff, The Coming Vindication of 
Mr. Justice Harlan, 44 111. L. Rev. 13, 32-33 (1949).



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of the practice to sustain its validity. As to the criterion 
of “ public peace and good order,”  it has long since been 
rejected by this Court as a sufficient basis for distinctions 
grounded on race.15

Thus the Plessy decision is reduced to the assertion 
already quoted—that acts requiring segregation in public 
conveyances (or, seemingly, anywhere else) are no “ more 
obnoxious to the Fourteenth Amendment than acts * * * 
requiring separate schools for colored children * * *”  
But segregation in general is likewise no less obnoxious to 
the equal protection clause than segregation in education. 
In fact, Chief Justice Taft’s opinion in Gong Lum v. Rice, 
275 U. S. 78, 86 (1927), characterized the problem in the 
Plessy case as a “ more difficult question”  than that of the 
validity of segregated education. The same practice 
which, in education, seeks to label the Negro a “ second- 
class”  student, implies second-class citizenship the mo­
ment it is applied in other areas. The conclusion is obvi­
ous—a decision which invalidates the Texas constitutional 
provision in the present case undermines the sole founda­
tion of the Plessy case. And that being true, Plessy v. 
Ferguson should be overruled by this Court.

Conclusion.

This Court’s initial sanction of the “ separate but equal”  
doctrine in the Plessy case recited:

“ Legislation is powerless to eradicate racial in­
stincts or to abolish distinctions based upon physical 
differences, and the attempt to do so can only result 
in accentuating the difficulties of the present situation. 
* * * If one race be inferior to the other socially,

15. Buchanan v. Warley, 245 U. S. 60, 74 (1917). In Shelley 
v. Kraemer, 334 U. S. 1, 21 (1948), this Court relied on Buchanan 
v. Warley to refute the contention that the state police power ex­
tended to racial discrimination.



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the Constitution of the United States cannot put them 
on the same plane.”

But this premise, even if its validity is assumed solely 
for the purpose of argument, involves a total misstate­
ment of the problem. The question is rather whether the 
states are empowered to lend affirmative aid to discrim­
ination based on so-called “  racial instincts’ ’—whether the 
states can create distinctions having no reasonable rela­
tion to physical differences. It is respectfully submitted 
that the Fourteenth Amendment compels a negative an­
swer.

Segregation statutes in education and in other fields 
have been labeled “ effective means of tightening and freez­
ing—in many cases of instigating—segregation and dis­
crimination. * * *” 16 This court should not, by remaining 
silent on the question of lack of constitutionality of such stat­
utes, allow itself to be an instrument for aiding that process 
of tightening and freezing. The alternative to a declaration 
of unconstitutionality—the tacit acceptance by courts of the 
“ separate but equal”  doctrine in litigation involving such 
statutes—has accomplished only one “ educational”  func­
tion : It has, by a process of successive adjudication, taught 
the states what border-line of token equality must be crossed 
to “ satisfy”  the equal protection clause. This Court 
should grant certiorari to settle clearly the question 
whether even equal education, if separate, fulfills the re­
quirements of the Fourteenth Amendment.

Respectfully submitted,
A rthur J. Goldberg,

General Counsel.
T homas E. H arris,

Assistant General Counsel.

16. Myrdal, An American Dilemma 579-80 (1944).