Bradley v. Pinellas County School Board Brief for Plaintiffs-Appellees

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1954

N o .—.

OLIVER -B R O W N , ET A L ., D O RO TH Y E. DAVIS, E T  A L .,

Appellants, Appellants,
V. V.

BOARD OF ED U CATIO N  OF C O U N T Y  SCH OOL BOARD OF

T O P E K A , SH A W N E E  C O U N T Y , P R IN C E  EDW ARD C O U N T Y ,

K A N SA S, E T  A L. V IR G IN IA , E T  A L.

H A R R Y  BRIGGS, J R ., E T  A L ., FR AN C E S B . G E B H A R T , ET A L .,

Appellants, Petitioners,
V. V.

R . W . E L LIO T T ,, E T  A L. E T H E L  LO U ISE B E L T O N , ET A L.

AMICUS CURIAE BRIEF OF THE 
ATTORNEY GENERAL OF ARKANSAS

T om G entry

Attorney General 
State of Arkansas 
State Capitol 
Little Rock, Arkansas 

J am es Li S loan

Assistant Attorney General 
State of Arkansas 
State Capitol 
Little Rock, Arkansas 

R ichard  B. M cCu lloch

Special Asst, Attorney General 
State of Arkansas 
Forrest City, Arkansas

PARAGON PRINTING CO., LITTLE ROCK



IN D E X

Page
Preliminary Statement --------------- ------------------------------------- 1

Arkansas Constitutional and
Statutory Provisions ________________________________  3

Factual Background_____________________________________  5

Argument:

1. This Court Should Not Order
Immediate Integration ____     7

2. Cases Should Be Remanded to
Permit Gradual Integration ________________________ 10

3. Congressional Action for
Integration ________________________________________  13

21Conclusion



INDEX—(Continued)

Cases Cited

Page
Brown et al v. Board of Education of

Topeka, Shawnee County, Kansas, et al,
347 U. S. 483 _______________________________________ _ 1

Civil Rights Cases, 109 U. S. 3 ___ _________________ 14, 16, 17

Colegrove v. Green, 328 U. S. 549 ________________________  20

Coleman v. Miller, 307 U. S. 433 _________________________  19

Collins v. Hardyman, 341 U. S. 651 ______________________  14

Hecht Co. v. Bowles, 321 U. S. 321______________________ 10, 11

International Salt Co. v. United States,
332 U. S. 392 _______ ________________________________  10

Meredith v. City of Winter Haven,
320 U. S. 228 __________- - - _______________________ 10

Minersville School Dist. v. Gobitis,
310 U. S. 586 _______________________________________ - 18

McCollum v. Board of Education of School
Dist. No. 71, 333 U. S. 203 ____________________________  17

Parker v. Brown, 317 U. S. 341 __________________________  20



INDEX—(Continued)

Page
Pitts v. Board of Trustees of DeWitt Special

School Dist. No. 1, 84 F. Supp. 975 ________________11, 18

Plessy v. Ferguson, 163 U. S. 537 -------------------- --------------- 11, 15

Steward Mach. Co. v. Davis,
301 U. S. 549 _____________________ __________ ________  20

Terry v. Adams, 345 U. S. 461_________ ___ .......................-... 13

United States v. Fisher, 6 U. S. 358 -------------------- ---------------  17

United States v. Gilman, 347 U. S. 507 ----------------- ...------------ 20

Arkansas Constitution and Statutes

Constitution of Arkansas (1874),
Article 14, Section 1 ___ ______________ ______ ___ ____ ~ 3

Constitution of Arkansas (1874),
Article 14, Section 4 — -------- ---- -------------------------------  3

Act 52, Arkansas Acts of 1868 .—.................. ................ ........  4

Act 130, Arkansas Acts of 1873, Section 108 ______________ 4

Appendix "A "

Arkansas School Enrollment
1933-1954 Session With Receipts and Disbursements__  25



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1954

No.

OLIVER B R O W N , E T A L .,

Appellants,
v.

BOARD OF E D U C A TIO N  OF

T O P E K A , SH A W N E E  C O U N T Y , 

K A N SA S, ET AL.

H A R R Y  BRIGGS, J R ., ET A L .,

Appellants,
v.

R. W . E L L IO T T , E T  A L.

DOROTH Y E. DAVIS, E T  A L .,

Appellants,
v.

C O U N T Y  SCH OOL BOARD OF 

P R IN C E  EDW ARD C O U N T Y , 

V IR G IN IA , ET AL.

FRAN CES B. G E B H A R T, E T A L .,

Petitioners,
v.

E T H E L  LOU ISE B E L T O N , ET A L.

PRELIMINARY STATEMENT

This brief is filed by the Attorney General of the State 
of Arkansas as amicus curiae at the invitation of this 
Court in the four cases shown in the caption. For brevity 
and convenience, the four cases are referred to collectively 
as “ the Brown Case” . Brown v. Board of Education of 
Topeka, Shawnee County, Kansas, 347 II. S. 483.

In the Brown Case, the Chief Justice, speaking for the 
unanimous Court, stated the issue presented to the Court 
in the four cases as follows, 347 U. S. at 493:

“ Does segregation of children in public schools 
solely on the basis of race, even though the physical 
facilities and other ‘ tangible’ factors may be equal, 
deprive the children of the minority group of equal 
educational opportunities f ”



2

Tlie Court decided that issue in the following language, 
347 IT. S. at 495 :

“ We conclude that in the field of public educa­
tion the doctrine of ‘ separate but equal’ has no place. 
Separate educational facilities are inherently un­
equal. Therefore, we hold that the plaintiffs and 
others similarly situated for whom the actions have 
been brought are, by reason of the segregation com­
plained of, deprived of the equal protection of the 
laws guaranteed by the Fourteenth Amendment.”

Let it be said at the outset that nothing contained in 
this brief is intended to bring into question the correctness 
of the ruling of this Court or its reasons for reaching that 
conclusion.

The full force and effect of the decision in the Brown 
Case was recognized by a “ policy statement”  issued by the 
State Board of Education of Arkansas following a meeting 
of the Board on June 14, 1954. The policy statement of 
the Board is as follows:

“ Under our present law the State Board of 
Education acts only in an advisory capacity to local 
school boards. The local board itself is the govern­
ing body of the school district and its decisions are 
final. Therefore, decisions must be made by the 
local school board, but within the limitations and 
restrictions provided by law. Our present state law 
provides for segregation in the public schools and 
any decision by a local board providing for integra­
tion of the races is premature, as the Supreme Court 
in its opinion stated that further arguments would 
be heard and a decree entered. We do not know 
when the decree will be entered or what it will pro­
vide. In the meantime, members of both races at 
the community level should continue as they have 
in the past in working cooperatively and effectively 
in a friendly effort to achieve better and substan­
tially equal schools for all children, without regard 
to race.



3

“ It is important to keep in mind that policy 
decisions are made by local school boards. The 
public school system in America calls for local con­
trol of schools and the state functions in the area of 
leadership only in such vital statewide matters as 
the one involving segregation of the races.”

The General Assembly of Arkansas (the constitutional 
legislative branch of Arkansas’ government) has not been 
in session since March of 1953 and will not convene in reg­
ular session until January of 1955. Without anticipating 
what action, if any, the General Assembly of Arkansas will 
take in its 1955 session, it is probably safe to say at this 
time that some further words of advice and direction from 
this Court will go a long way toward charting the course 
of future action or inaction by the Arkansas General As­
sembly. One of the purposes of this brief is to solicit most 
earnestly from this Court such words of clarification and 
advice as to the course to be pursued by the people of Ar­
kansas in carrying out the final mandate of the Court as 
may be proper.

P E R T IN E N T  A R K A N SAS C O N ST IT U T IO N A L  

AN D STATU TO R Y  PROVISIONS

Ark. Const. (1874) Art. 14, §1, provides:
“ Intelligence and virtue being the safeguards 

of liberty and the bulwark of a free and good gov­
ernment, the State shall ever maintain a general, 
suitable and efficient system of free schools whereby 
all persons in the State between the ages of six and 
twenty-one years may receive gratuitous instruc­
tion.”

Ark. Const. (1874) Art. 14, §4, provides:

“ The supervision of public schools and the 
execution of the laws regulating the same shall be 
vested in and confided to such officers as may be 
provided for by the General Assembly.”



4

The first general law providing for the separation of 
white and negro children in the public schools of Arkansas 
was enacted on July 23, 1868 —- the year of adoption of 
the Fourteenth Amendment to the United States Constitu­
tion. The act provided that school boards in Arkansas 
shall “ make the necessary provisions for establishing sep­
arate schools for white and colored children and youths 
. . . Act 52, Ark. Acts of 1868.

In 1873 the Arkansas school law of 1868 was re-enacted 
and Act 130, Ark. Acts of 1873, §108, provided for “ estab­
lishing separate schools for white and colored children and 
youths.”  According to a contemporary newspaper, there 
were twenty negro members in the 1873 session of the 
Legislature and it was reported that “ that one-fifth part 
is a complete master of the two houses, as if the number 
that composed the group were three times as great. ’ ’ Edi­
torial, “ The Colored Legislators,”  Arkansas Gazette, Feb­
ruary 1, 1873, p. 2.

It is also interesting to note that on January 6, 1873 
(the year during which the Arkansas school laws were be­
ing formulated), J. C. Corbin became State Superintendent 
of Public Instruction for Arkansas. He was a negro edu­
cator who came to Arkansas during the War between the 
States. See Weeks, “ School History of Arkansas.”  (H. 
S. Bureau of Education Bui. No. 27, 1912) pp. 59, 117.

The only statutory law in Arkansas today on the sep­
aration of white and negro children in the Arkansas public 
school system provides:

“ The board of school directors of each district 
in the State shall be charged with the following 
powers and perform the following duties . . .  (c)
Establish separate schools for white and colored 
persons.”  Ark. Stats. (1947) §80-509.



5

The existing school segregation law in Arkansas, there­
fore, apparently had its origin at a time when the negroes 
in Arkansas greatly influenced, if not dominated, legisla­
tive action on the school question.

F A C T U A L  BACKGROUND

Attached hereto as Appendix “ A ”  appears a tabula­
tion which shows pertinent information as to the various 
school districts of Arkansas. The purpose of this tabula­
tion is to demonstrate the proposition that the wide variety 
of circumstances which exist in the various counties of 
Arkansas requires a wide variety of remedies and plans in 
bringing about the ultimate result demanded by the decision 
of this Court, that is, the abolition of the dual school system 
in Arkansas.

There are 75 counties in Arkansas. The tabulation 
shows there are 422 separate school districts in the State 
or an average of about five separate districts for each 
county. Each school district has its separate board of 
directors which is the immediate governing authority of 
the district. The members of the board are elected by 
the qualified electors of the district and they are directly 
responsible to the people for their actions.

It is of interest to note that there are 14 counties out 
of the total 75 counties which had no negroes enrolled in 
the public schools of the county. Ten of the counties 
without negro population are located in the north and 
northwest (mountain) section of the State. Two of the 
non-negro counties (Polk and Scott) are in the south­
western section of the state. The remaining two non­
negro counties (Clay and Greene) are contiguous to Mis­
sissippi County to the east which had a negro enrollment 
of 4,789 or about 20% of the total enrollment for Mississippi 
County.



6
By way of contrast, it will be seen from Appendix 

“ A ”  that in six counties in Arkansas the negro enrollment 
exceeded the white enrollment. Five of these predomi­
nately negro counties (Lee, St. Francis, Crittenden, Chicot 
and Phillips) are in the eastern section of the State and 
border the Mississippi River. The other predominately 
negro county (Lincoln) is in South-central Arkansas.

The tabulation showTs that the negro enrollment for 
the State was about 23% of the total enrollment of the 
State.

As further evidence of the variety of conditions and 
circumstances in Arkansas, it should be noted that two 
districts in Arkansas have already integrated the white 
and negro children in the schools.

The Charleston School District in Western Arkansas 
(Franklin County) has integrated pupils during the 1954- 
1955 session from the first grade through the twelfth grade. 
The Fayetteville School District in Northwest Arkansas 
(Washington County) has an enrollment of 3,096 white 
pupils and 64 negro pupils. This district has integrated 
the negro and white pupils at the high school level. Negro 
children in the Fayetteville School District attend a seg­
regated school from the first grade through the ninth 
grade. For the 1954-1955 session, 11 negro high school 
pupils are attending the same high school with approxi­
mately 500 white children.

It is a matter of general information that integration 
has been accomplished so far in the Charleston and Fay­
etteville School Districts without any unusual incidents. 
However, from a comparison of the factual situations of 
the Charleston and Fayetteville School Districts with, for 
example, districts in St. Francis and Phillips Counties, 
it would certainly seem to follow as a matter of necessity 
that the process of integration must be applied as the cir­
cumstances in each district may require.



7

ARGUMENT

1. This Court should not order “ forthwith integra­
tion”  in the public schools.

2. This Court should enter a decree in the pending 
cases which will permit gradual adjustments.

3. The Court should leave the problem of integra­
tion of the races in public schools to Congress for appro­
priate legislation.

P oint  1

This Court Should Not Order Immediate Integration

This Court in its opinion in the Brotvn Case clearly 
recognized that the procedure for integration of the races 
in the public schools “ presents probllems of considerable 
complexity.”  Thus the Court has indicated that it is not 
unmindful of the possibility of widespread hostility in at 
least some school districts if immediate integration of the 
races in the public schools is required by this Court. This 
hostility is commonly known to exist in varying degrees 
in a majority of the school districts of Arkansas although 
there have been, so far as is known, no overt acts by any 
particular group or groups indicating open defiance of the 
law as declared by this Court.

But even unwilling or hostile compliance can, and 
probably would, have a most undesirable effect upon the 
whole system of public education in Arkansas. It will be 
conceded, presumably, that the bulk of the financial sup­
port for the public school system of Arkansas flows from 
the white population. This fact will continue to be true for 
many years to come unless a large portion of those per­
sons who now pay taxes in support of public schools man­
age, by some means not now forseeable, to withdraw their



8

support as a result of legislative enactments of some kind 
or other.

Without the leadership of those who carry the large 
portion of the burden of supporting the school system, the 
system as a whole is bound to pass through a period of 
deterioration which might last for many, many years. If 
the public school system is permitted to deteriorate, it 
necessarily follows that both the negro children and the 
white children will be the unfortunate victims. The negro 
children in all probability will suffer to a greater degree 
than the white children in such circumstances.

The Arkansas public school system today ranks far 
down the list in many respects in comparison with the 
systems of other states. There is a long way to go before 
Arkansans can point with pride to their school system as a 
whole. But no well-informed person will seriously contend 
that Arkansas has not made measurable progress during 
the past few years. Every well-informed person in Ar­
kansas agrees with this Court when it said that “ today, 
education is perhaps the most important function of state 
and local governments”  and education “ is the very foun­
dation of good citizenship.”  Brown Case, supra.

The executive, legislative and judicial branches of the 
State government have for years pointed up the school 
problem as the most important problem confronting the 
people of this State. It is well within the realm of possi­
bility that any decree of this Court at this time which 
would have the legal effect of ordering immediate integra­
tion of the races in all the school districts of Arkansas 
would disrupt the financing, management and control of 
the school system for many years.

A recognized authority on the sociological aspects of 
school segregation has said:



9

“ Finally, there is the hard fact that integra­
tion in a meaningful sense cannot be achieved by the 
mere physical presence of children of two races in 
a single classroom. No public school is isolated 
from the community that supports it, and if the 
very composition of its classes is subject to deep- 
seated and sustained public disapproval it is hardly 
likely to foster the spirit of united effort essential 
to learning. Even those who are dedicated to the 
proposition that the common good demands the 
end of segregation in education cannot be unaware 
that if the transition produces martyrs they will be 
the young children who must bear the brunt of 
spiritual conflict.”  Ashmore, “ The Negro and the 
Public Schools,”  (Chapel Hill 1954) p. 135.

It would unduly extend this discussion to take up the 
problems of grade requirements, transportation problems, 
revision of school area distribution and the many other 
complex management problems which will ultimately have 
to be solved in bringing about complete integration in Ar­
kansas. This Court has already indicated by the opinion 
in the Brown Case and by the study which the Court lias 
obviously given to these cases that it is fully aware of the 
complexity of the problem. This Court has not asked for 
a statement of the problem, but rather for a solution.

What has been said is, of course, addressed to the 
discretion of this Court in the exercise of its equity pow­
ers in the four cases now pending before it. It is believed 
that this complex problem can be solved most effectively 
and most satisfactorily in the interest of both the negro 
children and the white children by a gradual, rather than 
an immediate, adjustment or transition from segregation 
to integration of the races in the public schools.

There are, of course, many decisions of this Court 
pointing out the peculiar nature of equity practice. In 
the interest of brevity, it is appropriate to point to the



10

opinion of Mr. Justice Douglas in Hecht Co. v. Bowles, 321 
U. S. 321, 329, where the Court said:

‘ ‘We are dealing here with the requirements 
of equity practice with a background of several 
hundred years of history. Only the other day we 
stated that ‘ An appeal to the equity .jurisdiction 
conferred on federal district courts is an appeal to 
the sound discretion which guides the determina­
tion of courts of equity’,- Meredith v. Winter Haven, 
320 U. S. 228, 235. The historic injunctive process 
was designed to deter, not to punish. The essence 
of equity jurisdiction has been the power of the 
Chancellor to do equity and to mould each decree of 
the necessities of the particular case. Flexibility 
rather than rigidity has distinguished it. The quali­
ties of mercy and practicality have made equity the 
instrument for nice adjustment and reconciliation 
between public interest and private needs as well 
as between competing private claims.”

This Court also held in International Salt Co. v. United 
States, 332 U. S. 392, that district courts are invested with 
large discretion in modeling their judgments to fit the 
exigencies of the particular case, and the framing of de­
crees should take place in the district rather than appel­
late courts.

P oint  2

The Court Should Enter a Decree in the Pending 
Cases Which Will Permit Gradual Adjustments

The pending cases have been designated as class actions 
by the Court. The principal matter about which the peo­
ple of Arkansas are concerned is the binding effect of the 
impending decrees on prospective or pending litigation of 
similar nature in the federal courts of Arkansas.

It is believed that the decree of this Court in the Briggs 
Case, for example, would not have the effect of an adjudi­



11

cation of pending or prospective similar actions in the 
federal courts of Arkansas. That decree would be a pre­
cedent to be followed by the federal courts in Arkansas 
only to the extent that the Briggs decree would permit the 
federal court in Arkansas in equity to follow the proced­
ural scheme provided for in the Briggs decree.

The ultimate solution of the complex problem of tran­
sition is undoubtedly one which calls for ‘ ‘ flexibility rather 
than rigidity.”  Hecht Co. v. Bowles, supra.

In framing its decrees in the pending cases, it is 
deemed proper for this Court to consider the opinion of 
Judge Harry J. Lemley in Pitts v. Board of Trustees of 
DeWitt Special School District No. 1, 84 F. Supp. 975 
(E. I). Ark.). That case asserted the rights of negro 
plaintiffs to equal public school facilities under the Four­
teenth Amendment to the United States Constitution. The 
Court followed the “ separate but equal doctrine”  of 
Plessy v. Ferguson, 163 U. S. 537, and held that the negro 
children were entitled under the Amendment to school 
facilities substantially equal to the school facilities af­
forded white children. Judge Lemley was there con­
fronted, as the Court is here, with the terms and the scope 
of the decree to be entered under his findings of fact and 
conclusions of law. In solving this perplexing problem, 
Judge Lemley said, 84 F. Supp. at 983:

“ The instant suit is one in equity, and the bill 
is addressed to the court sitting as a court of equity. 
Hence the court has a wide discretion in determin­
ing what relief is proper and prescribing the time 
within which such relief must become effective. 
The case at bar is not the only one of this nature 
upon the court’s docket and, in connection with our 
discussions and holdings herein, it should be borne 
in mind that each of these cases stands on its own 
peculiar facts; relief which might be proper in one



12

ease miglit not be sufficient in another, and the 
length of time allowed to a district within which to 
bring about an equalization of educational facili­
ties which might be reasonable in one case could be 
unreasonable in another.”

In the same opinion, Judge Lemley further said, 84 
F. Supp. at 988:

“ We are not going to attempt to say what a 
‘ reasonable time’ in this case will be; that is a mat­
ter properly left, for the time being, to the good 
faith and discretion of the Board. If' the Board is 
dilatory, the plaintiffs are not without their rem­
edy in the Courts.”

The problem before Judge Lemley was, in effect, the 
same as now confronts this Court in the framing of its 
decrees. Judge Lemley decided that the negro children 
were entitled to separate but equal facilities. This Court 
has decided that the negro children in the instant cases are 
entitled to identical facilities, subject only to classification 
not based on race. Judge Lemley was confronted with a 
transition from unequal to equal facilities. This Court is 
confronted with a transition from separate to identical 
facilities.

It seems obvious that Judge Lemley adopted the logi­
cal and equitable solution of the problem before him. It 
appears also that this Court could find no better solution 
of its problem in the instant cases than remanding the four 
cases to the courts of first instance for adoption, in sub­
stance, of the language of Judge Lemley in the Pitts Case, 
supra.

It is contended, therefore, that the Court should enter 
a decree in each of the pending cases which will read sub­
stantially as follows:



13

“ The ease is remanded to the court of first in­
stance with directions to enter such orders and de­
crees as are necessary and proper and not incon­
sistent with the opinion of this Court in this case. 
In exercising its jurisdiction upon remand, the court 
of first instance is left free to hold hearings, through 
a Special Master of the court if deemed necessary 
or appropriate, to consider and determine what pro­
visions are essential, proper and appropriate to af­
ford appellants and those similarly situated full pro­
tection against segregation of negro children in the 
public schools solely on the basis of race in violation 
of their rights under the Fourteenth Amendment 
to the United States Constitution.”  Terry v. Adams, 
345 U.S. 461, 470.

P oint 3

The Court Should Leave the Problem of Integration 
of the Races in Public Schools to Congress for 

Appropriate Legislation

Even if the Court remands the pending cases with di­
rections as suggested, there still remains the uncertainty 
of the immediate effect which those decrees may have on 
prospective cases in the federal courts in Arkansas. The 
Court must of necessity make some disposition of the 
pending cases by way of appropriate decrees. In this con­
nection it is most respectfully urged that the Court take 
some action by way of a supplemental opinion, in addition 
to the specific decrees, which will have the effect of pre­
cluding what might well turn out to be a flood of cases in 
the federal courts of Arkansas and other so-called “ seg­
regated states.”

The point here is that this Court can and should deal 
with the problem by way of supplemental opinion in such 
a way that the whole problem of solving the method of 
integration should fall squarely where the Fourteenth



14

Amendment says it should fall; that is, on Congress for 
appropriate enactment.

In its opinion of May 17, this Court has definitely 
and finally decided that the separation of the races in 
public schools pursuant to state laws on a basis of race vio­
lates the Equal Protection Clause of the Fourteenth 
Amendment. The law having thus been interpreted and 
declared by this Court for the first time, it now becomes 
the function and the constitutional duty of Congress to 
exercise the power granted by Section 5 of the Fourteenth 
Amendment.

Section 5 of the Fourteenth Amendment is as follows:
“ The congress shall have power to enforce, by 

appropriate legislation, the provisions of this 
article.”

It might be well to mention at the outset that it is fully 
recognized that “ it is not for this Court to compete with 
Congress or attempt to replace it as the Nation’s law- 
making body,”  Collins v. Hardyman, 341 IT. S. 651, 663, 
and that “ the judiciary may not, with safety to our insti­
tutions, enter the domain of legislative discretion and dic­
tate the means which Congress shall employ in the exer­
cise of its granted power. That would be sheer usurpation 
of the functions of a coordinate department, which, if 
often repeated, and permanently acquiesced in, would work 
a radical change in our system of government.”  Mr. 
Justice Harlan dissenting in The Civil Rights Cases, 109 
U. S. 3, 51.

Nevertheless, it would certainly not be entirely with­
out precedent for this Court to point out to Congress, as 
urged here, the necessity for “ appropriate legislation” ; 
especially in view of the known fact that the prolonged in­
action by Congress has now resulted in a condition which 
has some aspects at least of a national emergency.



15
As a matter of pertinent history, it is very significant 

that the legislative records of Congress in promulgating 
the Fourteenth Amendment and of state legislatures in 
ratifying it have very little to say about racial segregation 
in public schools. It is, however, a matter of record that 
Senator Charles Sumner of Massachusetts appears to have 
strenuously but unsuccessfully advocated implementing 
legislation under Section 5 of the Fourteenth Amendment 
which would have been a specific and far-reaching pro­
scription of racial segregation in the public schools. Cong. 
Globe, 42 Cong., 2d Sess. 383-84 (1872).

By way of contrast, it is quite obvious from a reading 
of the Court’s opinion in the Brown Case that, in arriving 
at its decision, the Court took full cognizance of contem­
porary conditions in the field of public education as com­
pared with conditions existing at the time of and for many 
years subsequent to 1868. This Court said, 347 U. S. 492:

“ In approaching this problem, we cannot turn 
the clock back to 1868 when the Amendment was 
adopted, or even to 1896 when Plessy v. Ferguson 
was written. We must consider public education in 
the light of its full development and its present 
place in American life throughout the Nation . . . .

“ Today, education is perhaps the most import­
ant function of state and local governments . . . . 
In these days, it is doubtful that any child may rea­
sonably be expected to succeed in life if he is denied 
the opportunity of education.”

The Court having pointed out so forcibly the evolving 
concept of the Fourteenth Amendment, it would seem to 
follow as a necessary conclusion that the Court should now 
(by way of an additional opinion) not only nudge but 
even exhort Congress to enact appropriate legislation un­
der the power of Section 5 of the Amendment.



16

This Court could with complete propriety point out 
to Congress that legislative action is a necessity and that 
such necessity is a result of extending’ inaction by Congress. 
If Congress responds to the urgent invitation of the Court 
(and there are many reasons for believing that it will), 
then it will be performing the mandate of the people which 
is incorporated in Section 5 of the Amendment.

This Court in The Civil Rights Cases, 109 U. S. 3, 11, 
said that, under Section 5 of the Amendment, Congress 
is empowered

“ To adopt appropriate legislation for correct­
ing the effects of such prohibited State laws and 
State acts, and thus to render them effectually null, 
void, and innocuous.”

And in the same cases this Court said, 109 IT. S. 14:

“ It is not necessary for us to state, if we could, 
what legislation would be proper for Congress to 
adopt. It is sufficient for us to examine whether 
the law in question is of that character.”

In his very forceful dissenting opinion in The Civil 
Rights Cases, Mr. Justice Harlan said,

“ The legislation which Congress may enact, in 
execution of its power to enforce the provision of 
the amendment, is such as may be appropriate to 
protect the right granted. The word appropriate 
was undoubtedly used with reference to its meaning, 
as established by repeated decisions of this court. 
Under given circumstances, that which the court 
characterizes as corrective legislation might be 
deemed by Congress appropriate and entirely suffi­
cient. Under other circumstances, primary direct 
legislation may be required. But it is for Congress, 
not the judiciary, to say that legislation is appro­
priate—that is—best adapted to the end to be at­
tained.”



17

The conclusion to be drawn from the decision in The 
Civil Bights Cases is that the “ appropriate legislation”  
contemplated by Section 5 is co-extensive with and just as 
important a part of the Fourteenth Amendment as is Sec­
tion 1 which declares the rights of all persons to equal pro­
tection under the laws. Therefore, whatever action Con­
gress sees fit to take in the light of this Court’s decision 
would rest upon the judgment of Congress; provided, of 
course, that such legislation is directed against state ac­
tion. As Mr. Chief Justice Marshall said in United States 
v. Fisher, 6 U.S. 358:

“ Let the end be legitimate, let it be within the 
scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, 
which are not prohibited, but consistent with the 
letter and spirit of the Constitution, are constitu­
tional.”

Mr. Justice Frankfurter, concurring in McCollum v. 
Board of Education, 333 U. S. 203, 212, said that the case

“ . . . demonstrates anew that the mere formulation 
of a relevant Constitutional principle is the begin­
ning of the solution of a problem, not its answer.”  
And in the same case, Mr. Justice Jackson, concur­
ring, said, 33 U.S. at 237: ‘ It is idle to pretend that 
said, 333 U. S. at 237: ‘ It is idle to pretend that 
this task is one for which we can find in the Consti­
tution one word to help us as judges to decide where 
the secular ends and the sectarian begins in educa­
tion. Nor can we find guidance in any other legal 
source. It is a matter on which we can find no law 
but our own prepossessions. If with no surer legal 
guidance we are to take up and decide every varia­
tion of this controversy, raised by persons not sub­
ject to penalty or tax but who are dissatisfied with 
the way schools are dealing with the problem, we 
are likely . . .  to make the legal “ wall of separa­
tion between church and state”  as winding as the



18

famous serpentine wall designed by Mr. Jefferson 
for the University he founded.’ ”

This Court in the Brown Case arrived merely at the 
“ formulation of a relevant Constitutional principle.”  This 
Court should invoke immediate action by Congress to de­
clare and solve the variations of the controversy which are 
prevalent in the so-called “ segregated states”  — parti­
cularly in Arkansas.

Again it is appropriate to refer to the opinion of Judge 
Lemley in his “ separate but equal”  decision, Pitts v. Board 
of Trustees, where he said, 84 F. Supp. at 988:

“ In the last analysis, this case and others like 
it present problems which are more than judicial 
and which involve elements of public finance, school 
administration, politics and sociology . . . .  The 
federal courts are not school boards; they are not 
prepared to take over the administration of the pub­
lic schools of the several states; nor can they place 
themselves in the position of censors over the ad­
ministration of the schools by the duly appointed 
and qualified officials thereof, to whose judgment 
and good faith much must be left.”  See also Min- 
ersville School Dist. v. Gohitis, 310 U. S. 586.

In the Pitts Case and other “ equal facilities”  cases 
like it, the Court had before it, insofar as enforcement is 
concerned, a much less complicated problem than the pres­
ent problem of integration of races. The magnitude and 
complexity of the integration problem dictates a legislative 
solution.

In the enactment of appropriate legislation under 
Section 5 of the Amendment, Congress could, and probably 
would, recognize the necessity of allowing school officials 
wide latitude of administrative discretion under the su­
pervision of a federal agency which would guarantee ulti­
mate integration. Congress could make adequate provi­



19

sions for variations in such matters as geographical peculi­
arities, increasing or decreasing enrollment in particular 
districts, ratios of enrollment as between white and negro 
children, population shifts and any other factors which 
Congress might consider to be relevant.

Under Section 5, Congress would undoubtedly have 
power to fix a definite future date for complete integra­
tion in the several districts which have heretofore operated 
under the segregated system; or Congress might provide 
that integration must be completed in all districts within 
a reasonable time — such reasonable time to be deter­
mined in the manner prescribed by Congress.

As said by Mr. Chief Justice Stone in Coleman v. 
Miller, 307 U. S. 433, 453,

“ The question of a reasonable time in many 
cases would involve, as in this case it does involve, 
an appraisal of a great variety of relevant condi­
tions, political, social and economic, which can hardly 
be said to be within the appropriate range of evi­
dence receivable in a court of justice and as to which 
it would be an extravagant extension of judicial au­
thority to assert judicial notice as the basis of de­
ciding a controversy with respect to the validity 
of an amendment actually ratified. On the other 
hand, these conditions are appropriate for the con­
sideration of the political departments of the Gov­
ernment. The questions they involve are essentially 
political and not justiciable. They can be decided 
by Congress with the full knowledge and apprecia­
tion ascribed to the national legislature of the po­
litical, social and economic conditions which have 
prevailed during the period since the submission of 
the amendment.”

It is submitted that so long as Congress confines its 
“ corrective”  legislation to state action which infringes 
the Equal Protection and Due Process Clauses of the



20

Fourteenth Amendment, Congress would be the “ guardian 
of its own conscience”  as to what legislation on the school 
integration subject is more or less “ appropriate.”  In fact, 
it has been noted that in other fields it has not been un­
common for Congress to leave detailed administration to 
state control and discretion so long as such control and 
discretion are kept within the framework dictated by fed­
eral law. Steward Machine Co. v. Davis, 301 U. S. 548, 
and Parker v. Brown, 317 II. 8. 341.

The Constitution has conferred upon Congress the 
power to secure equal educational opportunities in the 
public schools for all children regardless of race. If Con­
gress has failed and should continue to fail in exercising 
its powers whereby equal educational opportunity is denied 
by reason of state laws “ the remedy will ultimately be 
with the people.”  “ The Constitution has left the perform­
ance of many duties in our governmental scheme to depend 
on the fidelity of the executive and legislative action and, 
ultimately, on the vigilance of the people in exercising their 
political rights.”  Colegrove v. Green, 328 U. S. 549, 556.

It is a matter of particular interest here that on the 
very same day this Court decided the school segregation 
cases (May 17, 1954) the Court also decided a very import­
ant case arising under the Federal Tort Claims Act, 60 
Stat. 842. The case was United States v. Gilman, 347 U. S. 
507. In construing the act, the unanimous Court, through 
Mr. Justice Douglas said, 347 U. 8. at 511.

“ Here a complex of relations between fed­
eral agencies and their staffs is involved. More­
over, the claim now asserted, though the product of 
a law Congress passed, is a matter on which Congress 
has not taken a position. It presents questions of 
policy on which Congress has not spoken. The selec­
tion of that policy, which is most advantageous to 
the whole, involves a host of considerations that must



21

be weighed and appraised. That function is more 
appropriately for those who write the laws, rather 
than those who interpret them.”

In the instant cases the Court is most certainly deal­
ing with ‘ ‘ a complex of relations ’ ’ between the federal gov­
ernment on the one hand and the state governments on the 
other. The specific problem of implementing Section 1 of 
the Fourteenth Amendment as interpreted by this Court is 
a matter on which Congress has not taken a position over 
a period of eighty-six years and presents serious “ ques­
tions of policy.”  The selection of policy relating to the 
integration of the races in public schools “ involves a host 
of considerations that must be weighed and appraised.”  
This Court should, in some appropriate manner, leave the 
details of the solution of the problem “ to those who write 
the laws.”

CONCLUSION'

The point which is urged here with most emphasis is 
that a decree of this Court ordering immediate integration 
of the white and negro children would have a most dis­
astrous effect upon the public school system of Arkansas. 
Likewise, it would most seriously disrupt the efforts of 
the leaders of both races in solving the racial problem in 
Arkansas in all its various aspects. No person or court can 
predict at this time what the consequences would ultimately 
be. There is no need for immediate integration in the pub­
lic schools. It is not required by the Constitution.

The problem of integration of races in the public 
schools is of such magnitude that it can be solved effec­
tively only by a gradual process which would vary from 
locality to locality. It is probably safe to assert at this 
time that no person or group of persons — not even any 
court — has formulated any definite plan of integration



22

which would operate successfully in the school districts of 
Arkansas. As to the four cases now before the Court, 
the plan for integration in the districts which would he 
directly affected by those cases must, for the time being 
at least, be formulated, developed and finally concluded 
under the supervision and control of the courts of first 
instance. The decrees of this Court should accord to the 
lower courts the very widest range of discretion in bring­
ing about integration in a manner which will promote, 
rather than retard the ultimate solution of the whole 
problem.

Finally and most earnestly, it is urged that this Court, 
by a supplemental opinion, point out in no uncertain terms 
that the integration problem is one which should be solved 
by Congress under Section 5 of the Fourteenth Amend­
ment. The American system of government being what it 
is, this Court cannot compel Congress to act. But cer­
tainly this Court can, by some appropriate suggestion, 
bring about prompt and appropriate action by that branch 
of the government in which the people themselves, by 
adoption of the Fourteenth Amendment, lodged the power 
to adopt, the appropriate plan to correct the conditions 
which, so this Court has said, the states have brought 
about in violation of the Amendment.

If the powers of this Court were not limited by the 
Constitution, the proper decrees of this Court in the pend­
ing cases would be to “ remand the cases”  to Congress 
with directions to take appropriate action. Lacking the 
power to command Congress, the next best thing would be 
a most urgent invitation to Congress from this Court. It 
is such a course which this Court is asked to adopt to the 
very limit of its power. If the Court complies with this 
request, then the solution of the problem will rest where it



23

was intended by the Constitution that it should rest— 
with the Congress.

November 15,1954.

Respectfully submitted,

T om G entry

Attorney General 
State of Arkansas 
State Capitol 
Little Rock, Arkansas

J ames L. S loan

Assistant Attorney General 
State of Arkansas 
State Capitol 
Little Rock, Arkansas

R ichard  B. M cCulloch

Special Asst. Attorney General 
State of Arkansas 
Forrest City, Arkansas



25

APPENDIX
ARKANSAS SCHOOL ENROLLMENT 

1953-54 SESSION

C O U N T Y
E n rollm en t 

W h ite  N egro T ota l
A n n ua l
R eceip ts

A n n u a l
D isb 'm ts

Arkansas . . . 3,630 1,360 4,990 $ 891,277 $ 732,917
Ashley . . . . 3,963 2,367 6,330 1,018,902 895,782
Baxter . . . . 2,148 X X X 2,148 326,545 286,029
Benton . . . . 7,443 1 7,444 1,199,694 1,046,447
Boone .......... 3,516 X X X 3,516 488,271 483,435
Bradley . . . . . 2,064 932 2,996 479,622 454,240
Calhoun . . . . 1,056 592 1,648 286,115 263,004
Carroll........... 2,240 X X X 2,240 330,165 315,957
C hicot.......... 2,461 3,053 5,514 837,044 666,743
Clark . . . . . 3,430 1,569 4,999 719,768 644,724
C la y ............. 5,899 X X X 5,899 712,092 695,944
Cleburne . . . 2,466 X X X 2,466 273,697 257,370
Cleveland . . . 1,546 526 2,072 353,646 333,275
Columbia . . . 3,679 2,807 6,486 1,010,188 927,011
Conway . . . . 2,721 1,211 3,932 535,174 489,141
Craighead . . . 11,264 295 11,559 1,502,603 1,389,577
Crawford . . . 5,147 87 5,234 647,874 635,714
Crittenden . . 4,012 6,909 10,921 1,254,324 1,052,578
C ross............ 4,106 1,985 6,091 797,101 731,553
Dallas . . . . 1,659 1,221 2,880 467,792 430,774
D esha........... 3,426 3,078 6,504 824,451 730,117
D re w ........... 2,237 1,366 , 3,603 544,724 463,941
Faulkner . . . 3,981 612 4,593 633,314 620,258
Franklin . . . 3,033 38 3,071 408,118 376,237
Fulton . . . . 1,728 X X X 1,728 243,406 232,057
Garland . . . . 8,045 910 8,955 1,449,747 1,392,016
G rant........... 2,121 203 2,324 381,496 364,546
Greene . . . . 6,608 X X X 6,608 856,064 781,482



26

ARKANSAS SCHOOL ENROLLMENT 

1953-54 SESSION

C O U N T Y
E n rollm en t 

W h ite  N egro T ota l
A n n ua l
R eceip ts

A n n u a l
D isb 'm ls

Hempstead . . 2,965 2,355 5,320 783,593 707,316
Hot Spring . . 4,860 744 5,604 1,020,340 877,411
Howard . . . . 2,333 809 3,142 511,605 449,967
Ind’p’nd’nce . 4,723 77 4,800 637,999 593,318
Izard ............. 2,093 14 2,107 240,407 224,549
Jackson . . . . 5,005 904 5,909 824,448 766,556
Jefferson . . . 8,869 8,025 16,894 2,353,543 2,038,288
Johnson . . . . 3,159 41 3,200 450,995 434,097
Lafayette . . . 1,629 1,614 3,243 560,538 480,749
Lawrence . . . 4,857 55 4,912 732,762 670,184
L e e ............... 2,316 3,552 5,868 626,368 537,960
Lincoln . . . . 1,744 1,887 3,631 544,104 470,376
Little River . 1,799 964 2,763 438,760 393,134
Logan .......... 3,230 169 3,399 558,614 482,709
Lonoke . . . . 4,518 1,428 5,946 829,476 723,716
Madison . . . . 2,640 X X X 2,640 277,237 266,346
Marion . . . . 1,516 X X X 1,516 254,566 232,608
M iller.......... 5,927 2,106 8,033 1,143,452 1,027,337
Mississippi . . 13,218 4,789 18,007 2,366,353 2,302,446
Monroe . . . . 2,394 2,176 4,570 526,483 483,524
Montgomery 1,416 3 1,419 284,030 232,634
Nevada . . . . 1,893 1,498 3,391 588,702 494,588
Newton . . . . 1,946 X X X 1,946 220,148 212,226
Ouachita . . . 4,781 3,637 8,418 1,336,720 1,095,448
P e rry ........... 1,297 48 1,345 221,272 190,383
Phillips . . . . 4,294 6,409 10,703 1,132,056 1,036,507
P ik e .............. 2,003 74 2,077 348,979 304,222
Poinsett . . . . 8,022 694 8,716 1,035,175 972,903
P o lk ............. 2,931 X X X 2,931 534,865 439,619
P o p e ............. 4,270 123 4,393 608,356 589,653



27

ARKANSAS SCHOOL ENROLLMENT 

1953-54 SESSION

E n rollm en t A n n ua l A n n u a l
C O U N T Y W hite N egro T ota l R eceip ts D isb 'm ts

Prairie . . . . 2,296 575 2,871 433,500 413,484
Pulaski . . . . 27,695 9,088 36,783 6,413,057 5,871,522
Randolph . . . 2,808 31 2,839 374,322 337,164
Saline.......... 4,800 88 4,888 791,254 729,381
S co tt ............ 1,564 X X X 1,564 295,193 254,689
Searcy . . . . 2,200 X X X 2,200 278,123 266,129
Sebastian . . . 12,400 903 13,303 2,138,442 2,023,826
S evier.......... 2,264 264 2,528 479,528 376,536
Sharp ........... 2,345 X X X 2,345 328,387 308,232
St. Francis . . 3,740 5,300 9,040 948,998 886,075
Stone ........... 1,590 X X X 1,590 194,428 182,477
U nion .......... 7,524 4,325 11,849 2,264,543 1,892,648
Van Buren . . 1,960 17 1,977 268,505 256,415
Washington . 9,299 64 9,363 1,262,843 1,213,977
W h ite ........... 7,817 302 8,119 1,230,306 1,160,193
Woodruff . . . 2,552 1,946 4,498 553,958 544,544
Y e l l .............. 2,910 90 3,000 539,774 477,755

TOTAL . . . . 314,041 98,310 412,351 $60,261,321 $54,618,690