Briggs v. Elliot Brief for Appellees on Reargument on Questions 4 and 5

    Supreme Court of the United States
October T erm, 1954

No. 2

HARRY BRIGGS, JR., et at., A ppellants, 

versus

R. W. ELLIOTT, CHAIRMAN, J. D. CARSON, et al., 
MEMBERS OF BOARD OF T R U S T E E S  OF 
SCHOOL DISTRICT NO. 22, C L A R E N D O N  
COUNTY, S. C., et a l . ,  A ppellees.

BRIEF FOR APPELLEES ON REARGUMENT 
ON QUESTIONS 4 AND 5

ROBERT McC. FIGG, JR., 
S. E. ROGERS,

Counsel for Appellees.
November 15, 1954.

The R. L. Bryan Company, Legal Printer*. Columbia, S. C.



P age

Statement ..................   1

Argument ............................................................................ 3

As to Question 4—The Equity Powers of the Court 4

As to Question 5—Should this Court Formulate the 
Decrees? ..................................................................  10

Conclusion .....................................   17

TABLE OF CONTENTS

(i)



P age

Beasley v. Texas & Pacific By., 191 U. S. 492 (1903) .. 5

Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S.
334 (1933) .........................................................................  5

International Salt Co. v. United States, 332 U. S. 392 
(1947) ..............................................................................  14

Muskrat v. United States, 219 U. S. 346 (1911) .......... 18

Rnssell v. Southard, 12 How. 139, 159 (1851) . . . . ___  14

United States v. Morgan, 307 U. S. 183, 194 (1939)___  5

Virginian Ry. v. System Federation No. 40, 300 U. S. 
515, 552 (1937)................................................................... 5

TABLE OF GABES

(iii)



Supreme Court of the United States
October T erm, 1954

No. 2

HARRY BRIGGS, JR., et al., A ppellants, 

versus

R. W. ELLIOTT, CHAIRMAN, J. D. CARSON, et al., 
MEMBERS OF BOARD OF T R U S T E E S  OF 
SCHOOL DISTRICT NO. 22, C L A R E N D O N  
COUNTY, S. C., et al., A ppellees.

BRIEF FOR APPELLEES ON REARGUMENT 
ON QUESTIONS 4 AND 5

STATEMENT
The instant action was brought to enjoin the enforce­

ment of provisions in the Constitution and statutes of the 
State of South Carolina which require separate schools for 
the white and colored races. The principal defendants were 
the school trustees of School District No. 22 of Clarendon 
County. (R. 2.)

The District Court of three judges (one judge dissent­
ing) upheld the validity of the State’s constitutional and 
statutory provisions under challenge, but found inequality 
in the school facilities furnished the two classes of school



2 Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees

children, and exercised its discretion to permit the school 
authorities to equalize such facilities. (R. 176 et seq.; 301 
et seq.)

Under the South Carolina educational legislation of 
1951, School District No. 22 was consolidated with a num­
ber of other school districts in Clarendon County into new 
School District No. 1, the school trustees of which were 
made parties to this action (R. 305, 306). By means of State 
aid for capital construction obtained by the new school dis­
trict under the 1951 legislation, the school trustees have 
brought about equality of physical facilities and all other 
“ tangible”  factors.

In this Court’s opinion filed May 17, 1954, it was held 
that, despite such equality, segregation in public educa­
tion is a denial of the equal protection of the laws. Re­
argument was ordered on Questions 4 and 5 previously pro­
pounded by the Court, which questions relate to the formu­
lation of the decrees to be entered by the Court in the five 
cases heard together.

The appellees discussed these questions in their brief 
on re-argument filed prior to the December, 1953, hearing 
(pp. 80-89), and reiterate the position there taken, that the 
only proper disposition of the appeal in the instant action 
is to remand the action to the court of first instance for 
further proceedings in conformity with the opinion of May 
17, 1954. The District- Court in the exercise of its equity 
powers, may then enter such decree as it may determine, 
under the evidence received by it upon further inquiry and 
under the principles which apply to the granting of equita­
ble relief, to be proper.



ARGUMENT
In ordering re-argument on the question of relief, the 

Court stated that jiroblems of considerable complexity are 
presented in the formulation of the decrees because the 
cases are class actions, because the wide applicability of 
the decision, and “ because of the great variety of local 
conditions.”

While the complaint (R. 5) alleges that the action was 
brought by the appellants as plaintiffs “ in their own be­
half and in behalf of all other Negro children attending the 
public schools in the State of South Carolina”  (R. 5), the 
only appellees who have the function of actually providing, 
maintaining and operating public schools are the school 
trustees and superintendent of the district, whose jurisdic­
tion is limited to the schools of School District No. 1. The 
functions of the other appellees are merely supervisory or 
appellate, and none of them have any jurisdiction or au­
thority outside of Clarendon County.

It is apparent, therefore, that, while the decision itself 
will have effect as stare decisis in many States and school 
districts, the decree entered in the instant action will as a 
practical matter be effective only in School District No. 1, 
and is little, if any, affected by the fact that the action is a 
class action.

It is quite clear from the record, however, that the 
situation in School District No. 1 represents one extreme of 
“ the great variety of local conditions”  falling under the 
Court’s decision. The district is in a predominantly rural 
and agricultural section, sparsely settled. Less than 10% 
of its school population is white (R. 265). Both its white 
and Negro schools are centralized, with reliance to an un­
usual degree upon school bus transportation (presently 
operated on a dual system basis). The problem in this dis­
trict is not the assignment of a comparatively small num­

H arry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees 3



4 Harry Briggs, Jr., et al., A ppellants, v . Elliott et al., A ppellees

ber of Negro pupils to white schools. Here integration 
would involve the assignment of white pupils, in the pro­
portion of less than one out of ten, to what are in reality 
Negro schools, and the transportation of many of such 
white pupils in what are essentially Negro school buses, all 
in abrupt and violent departure from and rupture of the 
pattern of community ways and habits of nearly a century. 
There is evidence in the record as to the difficulty to be 
expected in relation to public acceptance of desegregation 
in the schools of the district (R. 113, 114).

It is impossible to conceive of a problem arising under 
the Court’s decision which is more difficult than that fac­
ing the school authorities in a district such as the one in­
volved in the instant action, or a situation which is more 
in need of inquiry by the Court with a view of seeing that 
the public interest in the continuance of efficient public 
school education in the district as well as the private rights 
of the appellants are both duly considered in the framing 
of the final decree in the action.

As to Question 4—The Equity Powers of the Court.
In Question 4 the Court asked whether a decree neces­

sarily follows (under the decision rendered) that, within 
the limits set by normal geographic school districting, 
Negro children should forthwith be admitted to “ schools 
of their choice,”  or whether the Court, in the exercise of 
its equity powers, may permit an effective gradual adjust­
ment to be brought about from existing segregated systems 
to a system not based on color distinctions.

The appellees in their brief filed on re-argument in 
December, 1953 (pp. 80-82) took the position that under 
the equity powers vested in this Court (and in the lower 
federal courts as well) power is not lacking to permit such 
effective gradual adjustments, especially since the public



interest is so vitally involved. The public interest is a sig­
nificant factor to be weighed by courts of equity in the 
granting or withholding of relief, Virginia Ry. v. System 
Federation No. 40, 300 U. S. 515, 552 (1937); United States 
v. Morgan, 307 U. S. 183, 194 (1939), and plaintiffs have on 
occasions been denied equitable relief altogether and re­
mitted to less effectual remedies at law where the public in­
terest might have been adversely affected, Harrisonville v. 
W. S. Dickey Clay Mfg. Co., 289 U. S. 334 (1933); Beasley 
v. Texas & Pacific Ry., 191 IT. S. 492 (1903).

Indeed, the existence of the power of the Court re­
ferred to in Question 4(b) does not appear to be doubted 
by any interested party to the cases under consideration, 
and both Attorney General McGranery and Attorney Gen­
eral Brownell, in the briefs which they have heretofore filed 
in these cases, have strongly asserted and supported with 
argument and authority both the Court’s power and the 
importance of its use in proper cases in whatever decrees 
are framed under the Court’s decision, whether by this 
Court or by the District Courts.

In Attorney General McGranery’s brief filed for the 
United States as amicus mriae prior to the December, 
1952, hearing, and prior to the propounding by the Court 
of Questions 4 and 5, it was stated (p. 27):

“ It is fundamental that a court of equity has full 
power to fashion a remedy to meet the needs of the 
particular situation before it (citing cases). The fact 
that a system or practice is determined to be unlawful 
does not of itself require the court to order that it be 
abandoned forthwith.”  (Emphasis added.)
It was further stated (pp. 28-29):

“ If, in any of the present cases, the Court should 
hold that to compel colored children to attend ‘ separate 
but equal’ public schools is unconstitutional, the Gov­
ernment would suggest that in shaping the relief the 
Court should take into account the need, not only for

Harry Briggs, Jr., et al., A ppellants, v. Elliott et a l , A ppellees 5



6 Harry Briggs, Jr., et al., A ppellants, v . Elliott et al., A ppellees

prompt vindication of the constitutional rights vio­
lated, hut also for orderly and reasonable solution of 
the vexing problems which may arise in eliminat­
ing such segregation. The public interest plainly would 
be served by avoidance of needless dislocation and con­
fusion in the administration of the school systems af­
fected. It must be recognized that racial segregation in 
public schools has been in effect in many states for a 
long time. Its roots go deep in the history and tradi­
tions of these states. The practical difficulties which 
may be met in making progressive adjustment to a. non- 
segregated system cannot be ignored or minimized.

“ A decision that the Constitution forbids the 
maintenance of ‘ separate hut equal’ public schools will 
necessarily result in invalidation of provisions of con­
stitutions, statutes, and administrative regulations in 
many states—provisions which were adopted in good 
faith upon the assumption, supported by previous dec­
larations of this Court, that they were consistent with 
the requirements of the Fourteenth Amendment.”  
(Emphasis added.)
Attorney General McGranery envisioned procedure 

that would “ afford opportunity to responsible school au­
thorities to develop a program most suited to their own 
conditions and needs”  (p. 30), and it was suggested that 
“ to the extent that there may exist popular opposition in 
some sections to abolition of racially-segregated school 
systems * * # a program for orderly and progressive transi­
tion would tend to lessen such antagonism.”  (p. 30.)

In Attorney General Brownell’s brief filed prior to the 
December, 1953, hearing, Question 4 is discussed at length.

The following indicate the Attorney General’s conclu­
sions as to the equity powers of the Court relevant here:

“ The shaping of relief in the present cases in­
volves reference to three fundamental principles gov­
erning the granting of judicial remedies, each of which 
is to some degree applicable here: (1) One whose legal



rights have been and continue to he violated is entitled 
to relief which will he effective to redress the wrong. 
If a court finds that certain conduct is unlawful, it 
normally enters a decree enjoining the continuation of 
such conduct. (2) A  court of equity is not inflexibly 
bound to direct any particular form of relief. It has 
full power to fashion a remedy which will best serve 
the ends of justice in the particular circumstances. (3) 
In framing its judgment a court must take into account 
not only the rights of the parties but the public interest 
as well. The needs of the public, and the effect of pro­
posed decrees on the general welfare, are always of 
relevant, if not paramount, concern to a court of jus­
tice.”  (pp. 153-154.)

“ * * * [WJhatever the difficulties of determining 
what remedy would be most effective and fair in re­
dressing the violation of constitutional right presented 
in these cases, we believe there can be no doubt of the 
Court’s power to grant such remedy as it finds to be 
most consonant with the interests of justice.”  (p. 154.)

“ Congress has expressly empowered the Court, in 
dealing with cases coming before it, to enter such ap­
propriate judgment, decree, or order, or require such 
further proceedings to be had as may be just under 
the circumstances. 28 U. S. C. 2106. The breadth of this 
power, and the flexibility of judicial remedies which it 
permits the Court to utilize, have been demonstrated 
in a great variety of situations (citing cases). * * * 
Where public interests are involved, equitable powers 
‘ assume an even broader and more flexible character 
than when only a private controversy is at stake.’ ”  
pp. 154-156.)

“ The Court has expressed a reluctance to enter 
decrees which would involve the judiciary in the ad­
ministration of complex and detailed matters: “ The 
judiciary is unsuited to affairs of business manage­
ment; and control through the power of contempt is 
crude and clumsy and lacking in the flexibility neces­
sary to make continuous and detailed supervision ef­
fective”  (citing cases). The choice whether or not the

Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees 7



courts are to be thrust into a system involving diffi­
cult policing problems ‘ should not be faced unless the 
need for the system is great and the benefits plain.’ ”  
(p. 163.)
The Attorney General also considered and refuted the 

argument that the “ personal and present”  character of the 
right asserted by the appellants limits or makes inoperative 
the power of the Court to exercise its discretion and take 
the public interest into account in relation to the equitable 
relief which it may grant. He stated:

“ It may be contended, however, that the powers 
of a court of equity are not so comprehensive where 
vindication of the constitutional right to equal protec­
tion of the laws is involved. Such right, the Court has 
pointedly observed, is personal and present (citing 
cases). * * * [T]he constitutional issues presented to 
the Court transcend the particular cases and complain­
ants at bar, and in shaping its decrees the Court may 
take into account such public considerations as the ad­
ministrative obstacles involved in making a general 
transition throughout the country from existing segre­
gated school systems to ones not based on color dis­
tinctions. If the Court should hold in these cases that 
racial segregation per se violates the Constitution, the 
immediate consequence would be to invalidate the laws 
of many states which have been based on the contrary 
assumption. Racial segregation in public schools is not 
an isolated phenomenon limited to the areas involved 
in the cases at bar, and it would be reasonable and in 
accord with its historic practices for the Court in fash­
ioning the relief in these cases to consider the broad 
implications and consequences of its ruling.

“ The ‘ personal and present’ language appears in 
eases involving education on the professional and grad­
uate levels. Each case involved a single plaintiff. It is 
one thing to direct immediate relief where a single in­
dividual seeks vindication of his constitutional rights 
in the relatively narrow area of professional and grad­

8 Harry Briggs, Jr., et a l, A ppellants, v. Elliott et a l, A ppellees



uate school education, and an entirely different matter 
to follow the same course in the broad area of pub- 
lic school education affecting thousands of children, 
teachers, and schools. We do not think that when the 
Court in those cases characterized the right to equal 
protection of the laws as ‘personal and present’, it was 
thereby rejecting the applicability, to cases involving 
the right, of settled principles governing equitable re­
lief. (Emphasis added.) On the contrary, the Court has 
recognized that such principles are equally applica­
ble to litigation involving fundamental constitutional 
rights of individuals.”  (pp. 164-167.)

“ * * * [T]he Court has undoubted power in these 
cases to enter such decrees as it determines will be most 
effective and just in relation to the interests, private 
and public, affected by its decision.”  (p. 167.)
The appellants, in their brief on re-argument filed 

prior to the December, 1953, hearing, conceded “ that, as a 
court of chancery, this Court has power in a proper case 
to mold its relief to individual circumstances”  (p. 191), 
but contended that the “ personal and present”  nature of 
the appellants’ respective rights made such power inap­
plicable in these cases, a contention conclusively answered 
in Attorney General Brownell’s brief, as has been shown.

The appellees respectfully submit that this Court, in 
the exercise of its equity powers, may permit effective 
gradual adjustments to be brought about from existing 
segregated systems to systems not based on color distinc­
tions, and that the equitable discretion of this Court (and 
of the lower federal courts) should be exercised in a situa­
tion snch as that presented here in such manner, after due 
inquiry into all relevant factors, as may best subserve the 
public interest as well as the private interests involved.

Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees 9



As to question 5—Should this Court Formulate the 
Decrees?

Question 5, predicated upon the assumption that the 
Court will exercise its equity powers in the manner con­
templated in Question 4(b), asked whether this Court 
should formulate detailed decrees in the cases itself, or 
should remand them to the courts of first instance with 
directions to frame the decrees.

As to the first alternative, the Court asked what spe­
cific issues the decrees should reach, and whether the Court 
should appoint a special master to hear evidence and recom­
mend specific terms of such decrees.

As to the second alternative, the Court asked what 
general directions to the courts of first instance should be 
included in its remand, and also what procedures the courts 
of first instance should follow in arriving at the specific 
terms of more detailed decrees.

The appellees in their brief filed on re-argument prior 
to the December, 1953, hearing (pp. 83-89) took the posi­
tion that this Court should not, and indeed could not, for­
mulate a detailed decree in this case; that this Court should 
not appoint a special master to hear evidence with a view 
of recommending specific terms for such a decree; and that 
this Court should remand the ease to the District Court for 
further proceedings in conformity with the Court’s opinion.

Attorney General McGranery, in his brief above re­
ferred to, considered the district court to be an appropriate 
tribunal to “ fashion particular orders to meet particular 
needs”  (p. 30), and “ assumed that the district courts are, 
because of their familiarity with local conditions, the ap­
propriate tribunals to deal with issues of relief”  (p. 31, 
n. 18). In the same footnote (seemingly as an afterthought) 
it was observed that the Court may wish to formulate more 
precise standards and provisions for the guidance of the

10 Harry Briggs, Jr., et a t , A ppellants, v. Elliott et al., A ppellees



district courts, in which event, among other things, the sug­
gestion was made that a special master might be appointed 
to hold hearings and make recommendations to the Court 
on that question.

In discussing Question 5, Attorney General Brownell 
referred briefly to “ some of the kinds of administrative 
problems which may arise in giving effect to a holding that 
separate school systems are unconstitutional.”  These in­
cluded: (a) that such a decision “ will necessarily result in 
invalidation of provisions of constitutions, statutes, and ad­
ministrative regulations in many states” ; (b) that in many 
areas existing boundaries of school districts may require 
extensive revision; (c) that school authorities may wish to 
give pupils a choice of attending one of several schools, a 
choice now prohibited; (d) that schools may have to be 
consolidated, teachers and pupils transferred, teaching 
schedules revised, and transportation a r r a n g e m e n t s  
altered; and (e) that in some jurisdictions (including South 
Carolina) changes in the law (as for instance on the allo­
cation of public school funds) may be required.

He expressed the view that (p. 171) :
“ The extent of the administrative and legal 

changes required will thus vary in the different juris­
dictions involved, depending on these and other factors 
which now cannot be evaluated or measured. Accord­
ingly, it is impossible to determine at this time what 
specific period of time would be required to overcome 
the administrative obstacles to school integration in 
any particular area.”  (Emphasis added.)
Attorney General Brownell referred in some detail to 

New Jersey as an example of recent experience in desegre­
gation under a state constitutional amendment. He stated 
(pp. 175-176):

“ Following the adoption in 1947 of a state consti­
tution expressly forbidding racial segregation in the

Haery Briggs, Jr., et ah, A ppellants, v. Elliott et al., A ppellees 11



12 Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees

public schools of the state, a program for elimination 
of segregated schools was put into operation. A survey 
disclosed that there were 43 school districts in New 
Jersey which had one or more separate Negro schools. 
These were located in urban areas, agricultural town­
ships, and in some relatively well-to-do suburban com­
munities. Practically all the school officials and a ma­
jority of the school board members concerned did not 
oppose the program of racial integration of pupils.

“ Since many of the communities involved had in­
dividual problems, no single formula could be ap­
plied.”
And further (p. 178):

“ By September 1951, 40 of the 43 school districts 
involved in the New Jersey program were completely 
integrated and the remaining three districts had taken 
substantial steps towards integration. The state offi­
cial in charge of the program summarized the New 
Jersey experience as follows: ‘While New Jersey can­
not furnish any one formula, it can testify that com­
plete integration in the public schools can and will 
work. It may even be safe to say once more, that the 
way to learn to do a thing is to do it, and in this re­
spect, New Jersey has proven again that the best way 
to integrate is to do it.’ ”  (Emphasis added.)
After detailed consideration of the situation which 

would arise in the event of a decision holding separate 
schools systems to be unconstitutional, Attorney General 
Brownell stated (p. 183):

“ Administrative and other obstacles will have to 
be overcome in order to accomplish complete transition 
to nonsegregated systems. The nature and extent of 
such problems will vary throughout the country, and 
the time required to eliminating school segregation in 
any particular community will depend on numerous 
factors which neither this Court nor counsel can now 
evaluate.”  (Emphasis added.)



Harry Briggs, Jr., et al., Appellants, v . Elliott et al., A ppellees 13 

And further (p. 184):
“ There is no single formula or blueprint which 

can be uniformly applied in all areas where existing 
school segregation must be ended. Local conditions 
vary, and what would be effective and practicable in 
the District of Columbia, for example, could be inap­
propriate in Clarendon County, South Carolina. Only a 
pragmatic approach based on a knowledge of local 
conditions and problems can determine what is best in 
a particular place. For this reason, the court of first 
instance in such area should be charged with the re­
sponsibility for supervision of a program for carrying 
out the Court’s decision. This Court should not, either 
itself or through appointment of a special master, un­
dertake to formulate specific and detailed programs of 
implementation adapted to the special needs of partic­
ular cases.’ ’ (Emphasis added.)
Stating that the local school authorities should have the 

burden of presenting and establishing the local considera­
tions to the District Court, he observed (p. 185):

“ As the responsible authorities in charge of the 
public schools, they would he in the best position to 
develop a program most suited to local conditions and 
needs, and to indicate the length of time required to 
put it into effect. In passing upon such a program, the 
lower court could receive the views not only of the par­
ties but of interested persons and groups in the com­
munity. Such a locally-developed program for orderly 
and progressive transition to nonsegregation would 
tend to encounter less resistance and be thus more 
likely to achieve success.”
Attorney General Brownell suggested a form of re­

mand adapted from that employed by this Court in United 
States v. American Tobacco Co., 221 U. S. 106, but the ap­
pellees respectfully submit that remand of the instant 
action to the lower court for further proceedings in con­
formity with the Court’s opinion (as is done in the ordi-



nary lawsuit) will serve every purpose of the suggested 
decree, and will avoid the introduction of arbitrary time 
limitations and conditions upon the power of the District 
Court in dealing with the case.

The appellants in their brief on re-argument filed prior 
to the December, 1953, hearing (p. 196, n. 447) observed 
that “ taking of evidence by a Master”  (appointed by this 
Court) “ is undoubtedly a departure from normal practice 
on appeal.”  The appellees have suggested that, this being 
an appellate case, there is grave doubt whether under “ the 
established chancery practice”  this Court may receive new 
evidence and appoint a Master for that purpose, Russell v. 
Southard, 12 How. 139, 159 (1851), and also that under set­
tled principles the “ framing of decrees should take place 
in the District Court rather than in Appellate Courts,”  
International Salt Co. v. United States, 332 U. S. 392 
(1947).

The appellants also adverted to the fact that “ even in 
the five cases joined for hearing, there appears to be no 
uniformity in the extent of the task of adjustment from 
segregated to non-segregated schools”  (p. 195). Despite 
this they stated that they were unable, in good faith, to sug­
gest terms for a decree contemplating gradual adjustment, 
observing that it would be customary procedure for those 
wishing postponement of relief to produce reasons there­
for, whereupon they would be in a position to offer their 
views. The appellees, as above shown, contend that such 
procedure should be had in the District Court, and not this 
Court, and the briefs of both Attorneys General, above re­
ferred to, support this view (p. 197).

It is of interest to note the observations of counsel for 
the appellants in oral argument on December 9, 1952, on 
the question of the relief sought and deemed appropriate

14 Harky Briggs, Jr., et ah, A ppellants, v. Elliott et a l, A ppellees



by them in the instant action. He stated (Tr. of Oral Argu­
ment, December 9, 1952, pp. 23-24) :

“ So what do we have in the record"? We have tes­
timony of physical inequality. It is admitted. We have 
the testimony of experts as to the exact harm which is 
inherent in segregation wherever it occurs. That I 
would assume is too broad for the immediate decision, 
because after all, the only point before this Court is 
the statute as it was applied in Clarendon County. But 
if this Court would reverse and the case would be sent 
back, we are not asking for affirmative relief. That will 
not put anybody in any school. The only thing that we 
ask for is that the state-imposed racial segregation be 
taken off, and to leave the county school board, the 
county people, the district people, to work out their 
own solution of the problem to assign children on any 
reasonable basis they want to assign them on.”

And further (p. 28):
“ But I think the question as to what would happen 

if such decree was entered—I again point out that it 
is actually a matter that is for the school authorities to 
decide, and it is not a matter for us, it seems to me, as 
lawyers, to recommend except where there is racial 
discrimination or discrimination on one side or the 
other.

“ But my emphasis is that all we are asking for is 
to take off this state-imposed segregation. It is the 
state-imposed part of it that affects the individual 
children. And the testimony in many instances is along 
that line.”

And further (p. 29):
‘ ‘ It w’ould be my position in a case like that, which 

is very much in answer to the brief filed by the United 
States in this ease—it would be my position that the 
important thing is to get the principle established, and 
if a decree were entered saying that facilities are de­
clared to be unequal and that the appellants are en­
titled to an injunction, and then the District Court

Harry Briggs, Jr., et al., A ppellants, v. Elliott et al, A ppellees 15



issues the injunction, it would seem to me that it would 
go without saying that the local school board had the 
time to do it. But obviously it could not do it overnight, 
and it might take six months to do it in one place and 
two months to do it in another place.

“ Again, I say it is not a matter for judicial de­
termination. That would be a matter for legislative 
determination. ’ ’
We respectfully submit that, certainly in the instant 

case, the appropriate action to be taken by this Court is to 
remand the case to the District Court for the formulation 
of the decree by that Court.

As to what general directions this Court should give 
to the District Court in relation thereto, we think that there 
need be and should be none. The equity powers vested in 
the lower federal courts are ample to enable thm to de­
termine what decrees should be entered in reference to par­
ticular situations in the light of evidence taken to show 
what will best subserve the public and private interests 
involved. The lower courts are clearly in a better position 
to inquire into local conditions affecting the exercise of 
such powers than is this Court.

The courts of first instance can and should receive evi­
dence on local conditions and the factors to be taken into 
account in determining the proper decrees to be entered in 
each situation; and they should hold hearings thereon after 
remand so that the parties can adduce such evidence. It is 
not believed by the appellees that any other procedure 
need be taken by such courts in connection with the formu­
lation of their decrees.

16 Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees



CONCLUSION
The effective solution of the problems which arise un­

der the Court’s decision (to the extent that they are capable 
of solution) lies fundamentally in the legislative and ad­
ministrative fields of governmental responsibility. The 
Court in its decision has declared the constitutional prin­
ciple henceforth applicable to separate school systems in 
the public schools. This having been done, a decent respect 
for the sovereignty of the States affected, and a proper re­
gard for the division of functions and responsibilities 
inherent in our system of government, warrants the judici­
ary in assuming that the legislative and administrative 
branches of the State governments are capable of under­
taking the solution of the problems confronting them under 
the Fourteenth Amendment as now construed by the Court, 
and should have the opportunity of so doing.

The judicial process is not adapted to the handling of 
such matters. The Courts cannot compel the enactment of 
legislation or the adoption of administrative regulations; 
they cannot compel the levy of taxes or the making of ap­
propriations . The Courts act negatively in the decrees 
which they enter in such eases. They may annul, but they 
cannot create; they may prohibit, but they cannot devise 
affirmative solutions and command their adoption.

There are those who would like to see the Court invade 
the legislative and administrative fields by devising “ cri­
teria of desegregation”  to be included in its decrees in the 
pending cases, as conditions for the exercise of the equita­
ble discretion of the lower courts, and hence in reality con­
ditions for the exercise of the legislative and executive 
powers of the State governments. The theory is that there­
by the Court would in effect make its present decisions 
applicable in detail and in advance to every State and 
school district in the Nation in which separate schools have

Harry Briggs, Jr., et al., A ppellants, v . Elliott et a l , A ppellees 17



been maintained, and thus speed up the “ integration”  
program.

The obvious difficulty with this theory is that such 
action by the Court would be indistinguishable in quality 
and purpose from legislative or administrative action, an 
attempt to shape and compel legslative and administrative 
action in derogation of legislative and administrative dis­
cretion and choice. Judicial power, in the words of the 
Court in Muskrat v. United States, 219 U. S. 346 (1911), 
is “ the right to determine actual controversies arising be­
tween adverse litigants, duly instituted in courts of proper 
jurisdiction.”  It may be that the Congress could take some 
such action under the enforcement section of the Four­
teenth Amendment, but affirmative action of that character 
is not consistent with the nature of the judicial power 
vested in the United States courts, nor is it consistent with 
such power to prejudge in such manner the great variety 
of local conditions and situations arising under the deci­
sion.

In opposing the exercise by the courts of their equita­
ble discretion to permit effective and orderly gradual ad­
justment, the appellants have stressed the “ personal and 
persent”  nature of their respective rights, and contend that 
they should be accorded such rights without any delay. In 
this connection, however, the New Jersey experience with 
such adjustments cannot be ignored.

In New Jersey, as has been shown, with every factor 
favorable to such adjustments, the State constitutional 
change occurred in 1947. By September, 1951, there were 
still 3 school districts which had not accomplished adjust­
ment, although they had taken substantial steps thereto, 
and because of the individual problems of many of the 
communities involved it proved impossible to devise and 
employ “ any one formula.”  New Jersey is cited as an ex­

18 Harry Briggs, Jr., et al., A ppellants, v. Elliott et al., A ppellees



ample of successful adjustment, and yet there the program 
was not yet complete some four years after separate schools 
had been prohibited by the constitutional change there in­
volved. The problems and difficulties facing the school au­
thorities of this district greatly exceed those of any dis­
trict in New Jersey, and are as great as any that will arise- 
in any school district in the country.

In the instant case, legal segregation, or ‘ ‘ state-im­
posed”  segregation as the appellants call it, having been 
declared unconstitutional in the public schools, it seems 
fair to say that the appellants and others similarly situated 
will be deprived of little educational advantage by delay in 
integration of the pupils of the district, in view of the in­
significant number of white pupils who would be re-as­
signed in the public school system of the district. We re­
spectfully submit that the public interest requires that 
the instant case is a proper one to be remanded for further 
proceedings in the District Court, so that the school au­
thorities wall have the opportunity of presenting their prob­
lems fully to that tribunal, and of appealing to its equitable 
discretion in connection with their further handling of its 
affairs.

Respectfully submitted,

ROBERT McC. FIGG, JR.,

S. E. ROGERS,
Counsel for Appellees.

Harry Briggs, Jr., et ah, A ppellants, v. Elliott et al., A ppellees 19

November 15, 1954.



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