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

    kapron? (tort uf tiu Imtpfc BUUb
O c t o b e r  T e e m , 1952

In The

No. 191

D o r o t h y  E .  D a v is , e t  a l .,
Appellants,

v.
C o u n t y  S c h o o l  B oard  oe  P r in c e  E d w a r d  C o u n t y , 

^Vi r g in ia , e t  a l ,

Appellees.

Appeal from the United States District Court 
for the Eastern District of Virginia

REPLY BRIEF FOR APPELLANTS

R o b e r t  L. C a r t e r ,
O l iv e r  W .  H i l l ,

T h u r g o o d  M a r s h a l l ,
S p o t t s w o o d  W .  R o b in s o n , I I I ,

Counsel for Appellants.
E l w o o d  H .  C h i s h o l m ,

W i l l i a m  T. C o l e m a n , Jr.,
G e o r g e  E. C. H a y e s ,
G e o r g e  M. J o h n s o n ,

W i l l i a m  R. M i n g , Jr.,
C o n s t a n c e  B a k e r  M o t l e y ,

J a m e s  M. N a b r it , Jr.,
D a v id  E. P i n s k y ,
P r a n k  D . R e e v e s ,

J a c k  B . W e i n s t e i n ,
Of Counsel.

Printed by Law Reporter Printing Co., 518 5th St., Wash., D. C.



INDEX
Page

I. The Decisions of This Court Upon Which Appellants Rely are
Controlling ___________________________    1

II. The Long Continued Enforcement of Educational Segregation
in Virginia Is Irrelevant__________________________    3

III. The District Court Should Have Enjoined the Enforcement
of the Segregation Laws----------------------------------------------------------------  4

IV . Appellees’ Predictions as to the Consequences of Desegregation
Are Belied by Experience------------------------------------------------------------- 5

V . Appellees’ Assertions and Conclusions as to the County and
State Educational Situations and Efforts to Equalize Edu­

cation for Negroes Are Erroneous---------------------------------------------  9

A . The County Picture________________________________________ 9

B. The State Picture----------------------------------------------------------------  11
The Present Picture_________________________________________  12
The State Supervisor’s Study_______________________________  12
Literary Fund Allocations-----------------------------------------------------  14
The Four-Year Program____________________________________  15
Expenditures for Instruction________________________________  15
Teachers’ Salaries___________________________________________ - 16

VI. Conclusion __________________________________________________________  17

TABLE OF CASES

Alston v. School Board, 112 F. 2d 992 (C A  4th 1940), cert, denied 
311 U. S. 693__________________________________________________________  8

Atlantic Coastline Railroad Co. v. Chance, 186 F. 2d 879 (C. 4th 
1951), 341 U . S. 941; 198 F. 2d 549 (CA 4th 1952), —  IT. S. —  
(Nov. 10, 1952)_______________________________________________________ 4

Carter v. School Board of Arlington County, 182 F . 2d 531 (CA 4th 
1950) __________________________________________________________________  13

Corbin v. County School Board of Pulaski County, 177 F. 2d 929 
(C A 4th 1950)________________________________________________________  13

Gong Lum v. Rice, 275 U. S. 78________________________________________ 1 ,2

Hale v. Kentucky, 303 U. S. 613_________________________________________  3

Henderson v. United States, 339 U . S. 816______________________ _______  3

Inland Waterways Corporation v. Young, 309 U . S. 517---------------------- 3

Lane v. Wilson, 307 U. S. 268__________________________________________  3

i



Page

McLaurin v. Oklahoma State Regents, 339 U . S. 637_________________  2

Missouri ex rel. Gaines v. Canada, 305 U. S. 337______.1—111-_____  2, 3 ,10

Morgan v. Virginia, 328 U. S. 272_._______ __________________________ 3

Patton v. Mississippi, 332 U. S. 463.-____________________________________ 3

Pierre v. Louisiana, 306 U. S. 354___ __-—1.11—____i_____ ___1______ 3

Plessy v. Ferguson, 163 U. S. 537______ _________________________________  1, 2

Shelley v. Kraemer, 334 U. S. 1____________________________________ _____ 3

Sipuel y . Board of Regents, 332 U. S. 631__________________________ 2, 3, 5

Smith v. Allwright, 321 U. S. 649________________________________________ 3

Sweatt v. Painter, 339 U. S. 629_____________________________________  2, 3, 5

STATUTES CITED

Virginia Code, 1950, Sec. 22-223 to 22-229______ ...______________________  10

AUTHORITIES CITED

Bustard, The New Jersey Story: The Development of Racially Inter- 
grated Public Schools, 21 Journal of Negro Education 275, (1952) 8

Freedom to Serve, Report of President’s Committee on Equality of 
Treatment and Opportunity in the Armed Services (1950)____  6 ,7

NOTES

Grade School Segregation: The Latest Attack on Racial Discrimina­
tion, 61 Yale Law Journal, 730__________________________    7

MISCELLANEOUS
20 Annual Report of Superintendent of Public Instruction No. 3, 

September, 1937_____________________________________________________  10

24 Annual Report of Superintendent of Public Instruction No. 3, 
September, 1941___________________________________________________   10

30 Annual Report of Superintendent of Public Instruction No. 3, 
September, 1947__________ _________________—__________________________  10

33 Annual Report of Superintendent of Public Instruction No. 3, 
September, 1950__________________.____ _______________________________  10

X X X IV  Annual Report of Superintendent of Public Instruction No. 4, 
September, 1951__________________________ ________________________  13,14

ii



Ik T he

i © m a r t  ni Oft Inttpi*
O c t o b e r  T e r m , 1952

No. 191

D o r o t h y  E .  D a y is , e t  a l .,

Appellants,

v.
C o tjh ty  S c h o o l  B oard  o f  P r ik c e  E d w a r d  C o u n t y , 

V ir g i n i a , e t  a l ,

Appellees.

Appeal from the United States District Court 
for the Eastern District of Virginia

REPLY BRIEF FOR APPELLANTS

ARGUMENT

I .

THE DECISIONS OF THIS COURT UPON W HICH  
APPELLANTS RELY ARE CONTROLLING

Appellees assert that the cases relied upon by appellants 
(Appellants’ Brief, pp. 9-11) are not in point and that 
Plessy v. Ferguson, 163 U. S. 537, and Gong Lum v. Rice,



2

275 TJ. S. 78, control here (Appellees’ Brief, pp. 13-15). We 
stand on our brief in chief that the Plessy and Gong Lum 
cases are not controlling here (Appellants’ Brief, pp. 13- 
15).

Appellees argue that different legal considerations ob­
tain as between (a) “ situations where the parties seeking 
relief were wholly denied the right in question without 
being afforded ‘ separate but equal’ treatment”  and (b) 
those “ where coordinate facilities or opportunities are 
provided”  (Appellees’ Brief, p. 14). In this vein they at­
tempt to distinguish Missouri ex rel. Gaines v. Canada, 305 
TJ. S. 337, and Sipuel v. Board of Regents, 332 U. S. 631.

The difference claimed is constitutionally irrelevant. 
Provision for Negroes of facilities unequal to those af­
forded whites is as much a denial of the equal protection of 
the laws as is a total failure to provide for Negroes facili­
ties which are afforded whites. The consequences of the 
Gaines and Sipuel cases are unchanged by provision for 
separate but educationally unequal facilities and opportu­
nities. Sweatt v. Painter, 339 TJ. S. 629; McLaurin v. Okla­
homa State Regents, 339 TJ. S. 637.

Appellees seek to dismiss the Siveatt decision as inappli­
cable on grounds that (a) “ the considerations relative to 
education at the graduate level are entirely different from 
those bearing on the high school”  and (b) “ the Court there 
found inequality because of circumstances which have no 
substantial bearing here.”  (Appellees’ Brief, p. 15). They 
claim that the McLaurin case “ was a case of manifest 
harshness, and the facts there presented provide adequate 
distinction here.”  (Appellees’ Brief, p. 15). Neither of 
these grounds affords adequate distinction. In both of 
those cases this Court’s effort was to determine whether 
the practice complained of in fact resulted in a denial of 
equal educational opportunities. Here the record discloses, 
and the District Court found, that equal educational oppor­
tunities are not available. Certainly, the legal issue is the



3

same where segregation diminishes the Negro’s share of 
the benefits of a high school education as where segrega­
tion diminishes his share of the benefits of a graduate 
education.

II.

THE LONG CONTINUED ENFORCEMENT OF EDU­
CATIONAL SEGREGATION IN VIRGINIA IS IRREL­
EVANT.

Appellees suggest that the fact that racial segregation 
in public education has been Virginia’s practice for more 
than eighty years is important (Appellees’ Brief, pp. 2, 
17, 21). The evidence of appellees shows that Negro stu­
dents have been victimized by discrimination at least since 
1918 (R. 394-400). Appellees concede that discrimination 
of this kind violates rights secured by the Fourteenth 
Amendment (Appellees’ Brief, p. 29). Eighty years of 
such discrimination could not make that practice valid. 
Similarly, the duration of the segregation practice is irrele­
vant to a determination of its constitutionality. 1‘ Illegality 
cannot attain legitimacy through practice.”  Inland Water­
ways Corporation v. Young, 309 U. S. 517, 524.

Indeed, most of the racially invidious practices which 
this Court has stricken down had existed for many years: 
exclusion of Negroes from public graduate and professional 
schools, Missouri ex rel. Gaines v. Canada, 305 U. S. 337; 
Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. Painter, 
339 U. S. 629; residential segregation by court enforced 
restrictive covenants, Shelley v. Kraemer, 334 U. S. 1; sys­
tematic exclusion of Negroes from jury service, Hale v. 
Kentucky, 303 U. S. 613; Pierre v. Louisiana, 306 U. S. 354; 
Patton v. Mississippi, 332 U. S. 463; restrictions upon the 
right to vote; Lane v. Wilson, 307 U. S. 268; Smith v. All- 
wright, 321 U. S. 649; segregation of interstate passengers 
by statute or carrier regulations, Morgan v. Virginia, 328 
U. S. 272; Henderson v. United States, 339 II. S. 816. See



4

Atlantic Coast Line Railroad Co. v. Chance, 186 F. 2d 879 
(CA 4th 1951), cert, denied 341 U. S. 941, 198 F. 2d 549
(CA 4th 1952), cert, denied ___ U. S. ___ (November 10,
1952).

III.
THE DISTRICT COURT SHOULD HAVE ENJOINED 
THE ENFORCEMENT OF THE SEGREGATION LAWS

Appellees contend that even though the physical high 
school facilities for Negro students are presently unequal 
to those for white children, this inequality will be remedied 
by September, 1953, and that the District Court was correct 
in suspending appellants’ constitutional rights until then 
(Appellees’ Brief, pp. 36-39).

Under even their own concept, appellees are constitu­
tionally obligated to provide equal facilities. For many 
years they have disregarded that obligation and now seek 
to avoid the consequences. Their strenuous effort to rem­
edy the present conditions serves but to emphasize the 
gravity of current physical inequalities.

Appellants cannot concur in appellees’ statement (Appel­
lees’ Brief, p. 33) that “ equality now exists for all practi­
cal purposes as to curricula.”  Comparison of present 
curricula in the three high schools in the county, as set 
forth in their respective Preliminary Annual High School 
Reports for the 1952-53 session, now on file in the State 
Department of Education of Virginia, discloses that there 
are a number of courses now taught in one or more of the 
white high schools which are not taught in the Negro high 
school. And it is apparent that equalization of physical 
facilities will not eliminate other educational inequalities 
which are inherent in the practice of segregation.

Proof that appellees have drafted and placed in motion 
plans seeking to equalize the physical facilities is no bar 
to a decree enjoining segregation in the public schools. 
Denial of prompt relief cannot be reconciled with the pro­
nouncements of this Court. Since the right to the equal



5

protection of the laws is “ personal and present,”  appel­
lants cannot be denied the only effective relief that is 
presently available. Sipuel v. Board of Regents, 332 U. S. 
631; Sweatt v. Painter, 339 U. S. 629.

IV.

APPELLEES’ PREDICTIONS AS TO THE CONSE­
QUENCES OF DESEGREGATION ARE BELIED BY  
EXPERIENCE.

Appellees say they do not seek “ to threaten or to coerce”  
(Appellees’ Brief, p. 29), but the consequences which they 
assign to desegregation can hardly be termed an appeal to 
reason. Similar predictions were made in the brief of 
eleven southern states, including Virginia, amici curiae in 
support of the respondents, in Sweatt v. Painter, 339 U. S. 
629, where it was said (p. 11) :

“ Briefly summarized, the Southern States know that 
intimate social contact in the same schools will lead to 
withdrawal of public support of the schools, to physi­
cal and social conflicts, and to discontent and unhappi­
ness for both races.”

Despite this prediction, desegregation has taken place in 
universities and colleges in the South, including Virginia, 
without these consequences.

Efforts to conform existing patterns to the Constitution 
have almost invariably been accompanied by forecasts of 
dire consequences. The evidence derived from observa­
tions and systematic study of situations of desegregation 
is summarized and analyzed in the Appendix to Appellants ’ 
Brief (pp. 13-17). It potently demonstrates that appellees’ 
claims are unfounded.

Appellees say that desegregation experience at the uni­
versity level affords no precedent for high school desegre­
gation because the former involved too few Negroes and 
claim that the problem becomes acute when Negroes con­



6

stitute a substantial portion of the school population (Ap­
pellees’ Brief, p. 30). The experience of integration in the 
armed services furnishes concrete evidence that this posi­
tion is without merit.

The President’s Committee on Equality of Treatment 
and Opportunity in the Armed Services found that “ in the 
relatively short space of five years the Navy had moved 
from a policy of complete exclusion of Negroes from gen­
eral service to a policy of complete integration in general 
service.” 1 On January 1,1950, the Negro enlisted strength 
in the Navy was 15,747 out of a total of 330,098, or 4.7 per 
cent, of which total 6,647, or 2 per cent, were in general 
ratings.2 The Committee reported that3

“ Confronted by the Navy experience, some military 
officials maintained that it did not provide a reliable 
basis for generalization because of the relatively small 
number of Negroes involved. If, these officials sug­
gested, Negroes had comprised 7 to 10 percent of the 
men in general service rather than 2 percent, the Navy 
experience might have been quite different.

“ The Committee was skeptical of this argument, but 
it could not gainsay it without concrete evidence to the 
contrary. The experience of the Air Force has sup­
plied that evidence.”

On January 31, 1950, after the first eight months of its 
integration program, there were 25,702 Negroes in the Air 
Force of whom 74 per cent had been integrated.4 The 
number of integrated units totaled 1,301; the number of 
predominantly Negro units remaining was only 59.5 The 
Committee reported that experience bore out the conclu­
sion that6

1 Freedom to Serve, Report of President’s Committee on Equality of 
Treatment and Opportunity in the Armed Services (1950), p. 23.

2 Id. at 24.
3 Id. at 33.
4 Id. at 43.
c Id. at 43.
0 Id. at 44.



7

“ Integration of the two races at work, in school, and 
in living quarters did not present insurmountable dif­
ficulties. As a matter of fact, integration in two of the 
services had brought a decrease in racial friction.”

Integration is now the official policy of the Army, where 
Negroes constitute 9 to 10 per cent of the total enlisted 
personnel.7 The success of integration in the armed serv­
ices furnishes conclusive proof that, irrespective of the 
number involved, desegregation can occur even in areas 
where there is far more personal association than in 
schools.

Appellees also discount successful desegregation in uni­
versities on grounds that immaturity of the student and 
stronger parental influence place the high school in a special 
category (Appellees’ Brief, pp. 28-29). Here again the 
claim is refuted by experience. Recently, desegregation 
has taken place at both the elementary and secondary 
school levels in areas where segregation had existed for 
long periods of time.8 Speaking of desegregation recently 
occurring in a Baltimore high school, Maryland’s Gover­
nor Theodore R. McKeldin said9

“ For a long time, # # the City of Baltimore op­
posed the employment of Negro policemen. But when 
a number of Negroes were assigned to police duty,
* * * ‘ the evils which had been predicted did not 
materialize—the heavens did not fall and there was no 
increase in racial tension.’

“ Similarly, * * * the established practice in the 
Baltimore public school system had been to segregate 
the two races. When the school board decided to open 
the doors of a high school to eligible Negroes because 
in no other way could equal facilities be established,
* * * the ‘ lurid’ predictions of racial conflict failed to

1 Id. at 61-63.
8 For a review of a number of instances of recent elementary and high 

school desegregation, see Note, Grade School Segregation: The Latest 
Attack on Racial Discrimination, 61 Yale Law Journal, 730, 740, notes 
44-47 (1952).

8 A s reported in N. Y . Times, November 10, 1952.



8

materialize, and experience is showing that white and 
Negro youths get along harmoniously.

“  ‘ The fact is that in this instance, as in the case 
of other prejudices, * * * what was considered an im­
mutable pattern was found when challenged to have no 
validity either in social justice or the feelings of the 
community.’ ”

The short answer to the claim that desegregation will 
cause many Negro teachers to lose their jobs (Appellees’ 
Brief, p. 30) is that the rights asserted by these appellants 
are personal to the complaining students and parents and 
can in no wise be affected by such consideration. The 
fallacy in the argument is even greater. The Fourteenth 
Amendment, which prohibits racial discrimination in the 
payment of teachers’ salaries, Alston v. School Board, 112 
F. 2d 992 (CA 4th, 1940), cert, denied 311 U. S. 693, would 
likewise forbid racial discrimination in the employment of 
teachers. Moreover, we invite the Court’s attention to the 
experience in New Jersey where desegregation increased 
the job opportunities for Negro teachers.10

“ “ Until recently, most opportunities for colored teachers in New Jer­
sey existed in the areas where segregated schools were located. This is 
shown by a study of the figures regarding the number of colored teachers 
employed in New Jersey in 1945-46. In that year, there were 455 ele­
mentary and 24 secondary colored teachers in the public schools for a 
total of 479. A t that time, of these, 395 elementary and 20 secondary, 
for a total of 415 teachers, were engaged in the nine counties that main­
tained segregated schools. A  recent study shows that today in these 
same nine counties, there are 391 elementary and 34 secondary, for a 
total of 425 colored teachers in these same areas. On the other hand, 
while there was a total of 479 colored teachers in all the public schools of 
the State in 1945-46, today the same study shows 582 elementary and 63 
secondary for a total of 645 or a state-wide gain of 166 colored teachers 
during the last six years. It would seem from further examination of the 
figures that while teachers did not lose their jobs as the result of integra­
tion, there was a temporary slow-up in hiring additional colored teachers 
in some of the districts involved. The figures for the State as a whole, 
however, show a decided gain in this field of employment. As a result 
of the same recent visits referred to earlier by staff members of the 
Division to all of the school districts involved in the New Jersey program, 
reports indicate a very healthy attitude toward employment of all future 
teachers on merit and not on race.” Joseph L. Bustard, The New Jersey 
Story: The Development of Racially Integrated Public Schools, 21 
Journal of Negro Education, 275, 284 (1952).



9

It bears repeating that none of the dire predictions made 
to this Court by tbe proponents of segregation and dis­
crimination have ever materialized. It is evident that the 
issues in this case should be examined free of the pressures 
and restraints which appellees seek to inject.

V.

APPELLEES’ ASSERTIONS AND CONCLUSIONS AS 
TO THE COUNTY AND STATE EDUCATIONAL SITU­
ATIONS AND EFFORTS TO EQUALIZE EDUCATION 
FOR NEGROES ARE ERRONEOUS,

Appellees labor to demonstrate their good faith and as­
sert that they have in the past attempted and now are 
effecting county-wide and state-wide educational equality 
for Negroes (Appellees’ Brief, pp. 18-21, 34-35). This does 
not meet the issue in this case or disprove appellant’s thesis 
that educational inequality is an inseparable eoncomimt- 
ant of educational segregation. Furthermore, the true 
picture in the county and the state is not what appellees 
draw.

A. The County Picture

The District Court found that the Negro high school is 
inferior to the white high school as to buildings, facilities, 
curricula and buses (R. 622, 624). The evidence demon­
strated that the differentials are substantial and them-* 
selves rendered it impossible for Negro students to obtain a 
high school education equal to that afforded white stu­
dents (R. 80-120; 122-131).

Appellees attempt to escape indictment on this count by 
pointing to the fact that the 1951 enrollment of Negro 
high school students was 223 per cent of the 1941 enroll­
ment while during the same period the white high school 
enrollment declined 25 per cent—an increase they contend 
was unexpected (Appellees’ Brief, pp. 4, 34). The smaller 
1941 Negro high school enrollment did not justify the cis-



10

criminations which, for many years have been made against 
those Negro students who were in school. Missouri ex rel. 
Gaines v, Canada, 305 IT. S. 337. Nor does the contention 
that the increase was unexpected bear scrutiny. Virginia 
requires its school boards to take a quintennial census of 
all persons of school age residing in each county and city, 
and to gather statistics relating to the interests of educa­
tion in their respective districts.11 The published school 
census figures show that in Prince Edward County the 
potential Negro school enrollment—children between 7 and 
19 years of age—has greatly exceeded the potential white 
school enrollment for a number of years:12

1935
Census

1940
Year
1945 1950

Negro 2,948 2,298 2,296 2,252
White 2,040 1,929 1,639 1,537
Kegro/White Ratio 1.4 1.2 1.4 1.5

It is .evident that excesses of such size and duration were 
reflected at both the high school and elementary school age 
levels and refute the contention that the increase was un- 
expectable.

the history of high school education in Prince Edward 
County is one of gross discrimination against Negro stu­
dents. In 1918, when the present Superintendent took 
Jffice, there was a high school for white students (R. 394). 
It was not until 1927 that any such provision was made for 
Negro students (R. 394). In that year, a Negro combina­
tion elementary-high school was provided (R. 394). This

11 Virginia Code, 1950, Sec. 22-223 to 22-229.
\ 12 20 Annual Report of Superintendent of Public Instruction No. 3, 
September 1937, Table IX , Summary of School Census, 1935, at p. 137; 
24 Annual Report of Superintendent of Public Instruction No. 3, Sep­
tember 1941, Table 20, School Census, 1940, at pp. 224-225; 30 Annual 
Report of Superintendent of Public Instruction No. 3, September 1947, 
Table 56, School Census, 1945, at pp. 264-265; 33 Annual Report of 
Superintendent of Public Instruction No. 3, September 1950, Table 57, 
Sehe'ol Census, 1950, at pp. 266-267. These reports are published an- 
nuiily by the Commonwealth of Virginia, an appellee here.



11

school was not accredited by the State until 1931 (R. 397). 
Unlike the Farmville High School for whites, neither this 
school nor its successor, the Moton High School, earned 
regional accreditation (R. 119). Although white high 
school students have been afforded gymnasium facilities 
since 1927 and cafeteria facilities since 1936,' no such facili­
ties have yet been afforded Negroes (R. 401-402). The 
Farmville High School, constructed in 1936, was designed 
to accomodate more than twice its then enrollment, but 
the Moton High School, constructed three years later, was 
designed to accomodate only 25 more students than its 
enrollment at the time of constructioi (R. 401-402). Free 
school transportation has been afforded white students 
since 1924, but was not afforded Negro students until 1938 
(R. 395). These are among the many inequalities that 
have existed through the years.

Appellees point to plans for the new Negro high school 
which they urge will, upon completion, provide better 
facilities than those now provided white students (Appel­
lees’ Brief, p. 35). This ignores the plans for new white 
construction in the county. When all the presently pro­
posed new construction is completed (D. Ex. 96, R. 359), 
$2,187.50 per white high school student will be invested 
in wThite high school property while only $1,792.11 per 
Negro high school student will be invested in Negro high 
school property—a ratio of 82 cents per Negro student for 
every dollar invested per white student (R. 577; P. Ex. 
102, Table 17, R. 573). Thus, the superiority of Negro 
facilities will only be temporary, and the familiar pattern 
again will obtain.

This is the picture in Prince Edward County, present, 
past and future. The single theme portrayed is that .segre­
gation in public schools inevitably perpetuates inequality.

B. The State Picture

Here appellees contend that “ substantial inequality no 
longer exists” (Appellees’ Brief, p. 18). Even if such



12

were the fact, it would be irrelevant to this case, which in­
volves the personal constitutional rights of Negro high 
school students in Prince Edward County. But such is 
not the fact.

The Present Picture:

This is the present situation in Virginia as to physical 
facilities (PI. Ex. 102, Table 14, R. 573):

_ 1950-51
White Negro

Enrollment: ___________________ 464,330 160,811
Percentages:_________________ 74% 26%

Value of School Property: $ $
Sites and Buildings:_________  170,285,836 36,199,490

Average per pupil enrolled_ 366.73 225.11
Negro/White ratio_________________  .61

Furniture and Equipment:_____ 17,245,525 3,551,166
Average per pupil enrolled__ 37.14 22.08
Negro/White ratio_________________  .59

Busses: _______________________  5,170,621 1,207,082
Average per pupil enrolled_ 11.14 7.51
Negro/White ratio_________________  .67

Total School Property:_________  192,701,982 40,957,738
Average per pupil enrolled__ 415.01 254.69
Negro/White ratio _________________  .61

Thus, for each dollar invested in each category per white 
student, the investment per Negro student is 61 cents in 
sites and buildings, 59 cents in furniture and equipment, 
67 cents in busses and 61 cents in total school property.

The State Supervisor’s Study:
Appellees emphasize the District Court’s finding that in 

63 of Virginia’s 127 cities and counties high school facili­
ties for Negroes are equal to those for whites and that in 
30 of these 63 counties and cities they are or soon will be 
better than those for whites (R. 619; Appellees’ Brief, p. 
19). This finding was predicated upon the conclusions ex­



13

pressed by the State Supervisor of School Buildings based 
upon a study he made (R. 349; P. Ex. 10, R. 341). While 
this study considered only school sites, buildings and physi­
cal equipment, and did not embrace curricula, instructional 
personnel, and other educationally significant factors (B. 
347), appellants submit that neither the study nor the con­
clusions drawn therefrom are valid.

The witness admitted that he did not inspect the entirety 
of Virginia’s facilities for this purpose (R. 346) and that 
the compilation consisted of “ ideas, of records, people, 
State Department personnel, architects on the outside.”  
(R. 347). While the study embraced proposed, as well as 
existing, construction of Negro schools, it did not take into 
account proposed construction of white schools (R. 346).

According to the latest published report of the Superin­
tendent of Public Instruction,13 there are two or more ac­
credited white high schools but only a single accredited 
Negro high school in 25 of the 50 counties and 2 of the 13 
cities included in the Supervisor’s list, and 13 of these 25 
counties have from 4 to 9 accredited white high schools. 
In these situations the white high school facilities were 
averaged and the average compared with the Negro high 
school facility (R. 348-9). Since the caliber of the better 
white facilities is reduced when averaged with the poorer 
white facilities, some of the white students are afforded 
facilities superior to the average. This method of measur­
ing equivalency of facilities has been condemned. Corbin 
v. County School Board of Pulaski County, 177 P. 2d 929 
(CA 4th 1949); Carter v. School Board of Arlington 
County, 182 F. 2d 531 (CA 4th 1950).

Examination of the aforesaid report also reveals that in 
17 of the counties and 5 of the cities on the Supervisor’s 
list the Negro high school is not accredited by the Southern

“  X X X IV  Annual Keport of the Superintendent of Public Instruction 
No. 4, September 1951, Table 7, Accredited High Schools, at pp. 39-64; 
Table 9, Qualified High Schools, at p. 94; Table 11, Certified High 
Schools, at pp. 98-102. See note 12.



14

Association of Colleges and Secondary Schools, while at 
least one white high school facility in each of such areas is ; 
that in 3 of the counties and 2 of the cities in the list there 
is either no Negro high school or the Negro high school is 
not accredited by the State, while there is at least one white 
high school in each of such areas which is so accredited; 
and that in 7 of the counties and 2 of the cities on the list 
there was at least one white high school offering work 
through the twelfth grade, but the Negro high school pro­
gram offered work only through the eleventh grade.14

Literary Fund Allocations:

Appellees emphasize the approximately 65 million dol­
lars allocated by the State Literary Fund for school con­
struction in the State (Appellees’ Brief, p. 19). Specific 
projects have been approved for 69 of Virginia’s 100 coun­
ties and 22 of her 27 cities, and approximately 71 per cent 
of this sum is to be spent on white schools and 29 per cent 
on Negro schools (D. Ex. 108, Table XVII, R. 426). Even 
this large expenditure, when added to the value of the pres­
ent sites and buildings, will increase the ratio of invest­
ment from the present 61 cents to only 74 cents per Negro 
student for every dollar invested per white student (P. Ex. 
102, Table 15, R. 573). Since no time has been set for the 
completion of these projects, it cannot be estimated when 
even this ratio will be realized (R. 576). Even if all of 
the proposed Negro projects were completed and no addi­
tional monies whatever were invested in the white schools, 
the amount of money invested in sites and buildings per 
Negro student would be only $343.30 (P. Ex. 102, Table 15, 
R. 573), as compared to $366.73 already invested per white 
student (P. Ex. 102, Table 14, R. 573).

“ X X X I V  Annual Report of the Superintendent of Public Instruction 
No. 4, September 1951, Table 7, Accredited High Schools, at pp. 39-64; 
Table 9, Qualified High Schools, p. 94; Table 11, Certified High Schools, 
at pp. 98-102. See note 12.



15

The Four Year Program:

Appellees also point to tlie so-called four-year plan pro­
posing expenditure of some 263 million dollars for new 
construction and improvements, of which 71.7 per cent will 
be spent on white projects and 28.3 per cent on Negro 
projects (Appellees’ Brief, p. 20). These projects are 
planned for 99 counties and 25 cities (R.430). The money 
for this program is not now available (E. 484). Even if 
available and the entire program completed by 1956, the 
amount invested in sites and buildings would be only 79 
cents per Negro student for each dollar per white student 
(P. Ex. 102, Table 16, 11. 573). Even if funds were avail­
able to enable the State to continue the program after 
1956 at the same ambitious rate, investments in buildings 
and sites per Negro and per white student would not be 
equal until the 1963-64 school session (R. 56/).

Expenditures For Instruction:

Appellees point to an increase in the total amounts spent 
in 1950-51 for instruction in regular day schools of 123 
per cent in white schools and 161 per cent in Negro schools 
over the expenditures for 1943-44 (Appellees’ Brief, p. 19). 
In 1943-44 only 85 cents, and in 1950-51 only 89 cents, was 
spent per Negro student for each dollar spent per white 
student (R. 574; P. Ex. 102, Table 13, R. 573). Thus, the 
increase during this eight year period was only 4 cents 
per Negro student (R. 575). Even if the percentage in­
crease favorable to Negro schools continued at the same 
rate obtaining during the 8 year period, expenditures for 
instruction would not be equalized to school population 
ratios for twenty years, or until the 1972-73 school session 
(R. 575).

Appellees also point to the fact that the expenditures 
for 1950-51, when the school population ratios were 74.3 
per cent white and 25.7 per cent Negro, were 76.4 per cent



16

for white schools and 23.6 per cent for Negro schools (Ap­
pellees’ Brief, p. 19). But at no time during the eight year 
period has the ratio of expenditures in Negro schools 
equalled the ratio of Negro students to the total school 
population (D. Ex. 108, Table 11(a), R. 426; D. Ex. 109, 
Table 1(a), R. 440). The difference between these ratios 
has ranged from 5.4 per cent in 1943-44 to 2.1 per cent in 
1950-51 (D. Ex. 108, Table 11(a), R. 426; D. Ex. 109, Table 
1(a), R. 440). The difference in 1943-44 was 20 per cent, 
and in 1950-51, 10 per cent, of the entire amount spent 
for Negro instruction (D. Ex. 108, Table 11(a), R. 426). 
Equalization of the ratios of expenditures to the school 
population ratios would have necessitated the addition in 
each of the eight years of more than a million dollars to 
the appropriations for Negro schools (D. Ex 108, Table II 
(a), R. 426).

Teachers’ Salaries:

Appellees assert that the average annual salary of Negro 
elementary teachers is somewhat larger than that of white 
teachers, although the average annual salary of Negro high 
school teachers is smaller than that of white high school 
teachers (Appellees’ Brief, p. 18). A  more accurate picture 
is obtained by comparing the per capita costs of salaries 
per student in average daily attendance. For 1950-51 these 
were $78.49 for whites and $73.15 for Negroes in elementary 
schools, and $148.21 for whites and $130.07 for Negroes in 
high schools (P. Ex. 102, Table 14, R. 573). Thus, for 
each dollar spent in each category per white student, the 
expenditure per Negro student is only 93 cents in elemen­
tary schools and 88 cents in high schools (P. Ex. 102, 
Table 14, R. 573). Since the per capita costs of salaries 
are substantially greater for white teachers than for Negro 
teachers, both on the elementary and the high school levels, 
the inescapable inference is that the average student load 
of Negro teachers is larger than that of white teachers.



17

The state-wide picture thus emerges as a futuristic pro­
jection of inequality despite its grandiose design, and 
affords little hope that Negro students will receive equality 
of education in Virginia in the forseeable future under 
the system of separate schools.

CONCLUSION

We respectfully submit that, for the reasons stated 
herein and in appellants’ initial brief, the decree of the 
District Court should be reversed.

R o b e r t  L. C a r t e r ,

O l iv e r  W. H i l l ,
T h u r g o o d  M a r s h a l l ,
S p o t t s w o o d  W. R o b in s o n -, III,

Counsel for Appellants.
E l w o o d  H .  C h i s h o l m ,
W i l l i a m  T. C o l e m a n , Jr.,
G e o r g e  E. C. H a y e s ,
G eo r g e  M. J o h n s o n ,
W i l l i a m  R. M i n g , Jr.,
C o n s t a n c e  B a k e r  M o t l e y ,
J a m e s  M. N a b r it , Jr.,
D a v id  E. P i n s k y ,
F r a n k  D . R e e v e s ,
J a c k  B .  W e i n s t e i n ,

Of Counsel.