Davis v. Prince Edward County, VA School Board Brief for Appellees in Reply to Supplemental Brief for the United States on Reargument

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1953

No. 4

D O R O TH Y  E. DAVIS, e t  a l .,

v.
Appellants,

COU N TY SCHOOL BOARD OF PRINCE 
ED W A R D  COUNTY, VIRG IN IA, e t  a l .,

Appellees.

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

BRIEF FOR APPELLEES IN REPLY TO SUPPLEMENTAL BRIEF 
FOR THE UNITED STATES ON REARGUMENT

H unton, W illiams, A nderson, 
Gay & M oore 

Of Counsel

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

1003 Electric Building 
Richmond 12, Virginia

Counsel for the Prince Edward 
County School Authorities

J. L indsay A lmond, Jr.
Attorney General 

Supreme Court Building 
Richmond, Virginia

H enry T. W ick ham
Special Assistant to the 

Attorney General 
State-Planters Bank Building 
Richmond, Virginia

For the Commonwealth of Virginia

Dated December 7,1953



TABLE OF CONTENTS
Page

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

II. T he Congressional H isto ry ...............................................  2

III. T he State H istory .................................................................... 12

IV. T he Judicial Power .................................................................. 16

V. Conclusion ................................................................................  21

TABLE OF AUTHORITIES 

Cases

Commonwealth v. Davis, 10 Weekly Notes 156 (1881) .................. 16

Cory v. Carter, 48 Ind. 327 (1874) ....................... _...........................  16

Gong Lum v. Rice, 275 U. S. 78 (1927) ........................................... 18

Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) .......  17, 18

People ex rel. Dietz v. Easton, 13 Abb. Prac. (N . S.) 159 (1872).. 16

Plessy v. Ferguson, 163 U. S. 537 (1896) ................................  18, 20

Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384 
(1951) ..............................................................................................  7

State ex rel. Games v. McCann, 21 Ohio State 198 (1871) ...........  16

Sweatt v. Painter, 339 U. S. 629 (1950) ........................................... 19

Ward v. Flood, 48 Cal. 36 (1874) .....................................................  16



Other Authorities
Page

Statutes at Large:
12 Stat. 394 (1862) .................................................................... 10
12 Stat. 407 (1862) ......................................................................  10
12 Stat. 537 (1862) ........................................................................ 10
13 Stat. 187 (1864) ............................................... ........................  10
14 Stat. 216 (1866) ...................................................................... 11
14 Stat. 342 (1866) ...................................................................... 11

Ga. Laws (1870) 57 ..............................................................................  14

Va. Acts (1869-70 ) 413 ................................... ....................................  14

Cong. Globe, 39th Cong., 1st Sess. (1 8 6 6 )....... 3, 4, 5, 6, 7, 8, 9, 10

Cong. Globe, 40th Cong., 2nd Sess. (1868) .................... ................  11

Cong. Globe, 40th Cong., 3rd Sess. (1869) ....................................... 11

Cong. Globe, 42nd Cong., 2nd Sess. (1872) ................................  5, 20



PRELIMINARY STATEMENT
I.

At the invitation of the Court, the Attorney General of 
the United States has submitted a brief which, in general, 
opposes the position taken by the Appellees in this case. W e 
do not propose a detailed answer to his contentions, for time 
does not permit. But we do propose to comment generally on 
his more important conclusions for our study has convinced 
us o f their error.

At the beginning, we dispose of his arguments as to the 
fourth and fifth questions submitted by the Court, which, 
in our view, are subsidiary to the main issue. With his pro­
posals as to these matters, we are in substantial agreement. 
Only as to his suggestion that amalgamation be accomplished 
within a single year (Brief, p. 186) are we in substantial 
disagreement. The Court has in the records before it now no 
evidence as to the problems to be faced if segregation is to 
be abolished; no one knows the extent of these problems or 
the time that may be required for their solution. It seems to 
us an arbitrary suggestion that the Court now fix a time 
limit when it cannot have any real conception as to the ade­
quacy or inadequacy of the limit so fixed. W e repeat our 
view that the time is a matter for determination by the court 
below in the light of the evidence to be presented to it if the 
case be remanded. That court will then be able to require 
the best practical solution in the light of the facts.

But the important issue is the main question: whether 
segregated schools of themselves offend the Fourteenth 
Amendment. In the framework of this case, that question 
has three facets: the question of Congressional intent; the 
question of the intent of the States; and the question of the 
judicial power. To these three points we turn in the order 
given.



2

THE CONGRESSIONAL HISTORY
It cannot be denied that the anti-slavery movement had a 

broad humanitarian base; at the same time, it cannot be 
proved that one of its aims was the abolition of segregation 
by race in the public schools. The statements made by aboli­
tionist leaders before the Civil W ar were all addressed to 
the abolition of slavery. Statements made by radical leaders 
in the 1870’s, when school segregation was an issue of Con­
gressional debate, are not reliable as to their opinions in the 
1850’s (Brief, pp. 12-13). Generalizations have no bearing 
on the question asked by the Court; that is a question as to a 
specific issue which merits and can be given a specific answer.

W e come, then, to the first session of the 39th Congress. 
That was the session that passed the First Supplemental 
Freedmen’s Bureau Bill and the Civil Rights Act of 1866. 
W e agree with the Attorney General that they are important 
as a “ relevant part of the background of the Fourteenth 
Amendment” (Brief, p. 22). W e further agree as to the 
reason for their relevance; the facts are, as the Attorney 
General so well states, that “ the rights intended to be secured 
to Negroes by these measures were the same as those subse­
quently embodied in the Fourteenth Amendment. . . .”  
(Brief, pp. 21-2) That is also our concept; the two bills and 
the Amendment covered the same ground and there is no 
substantial evidence to support the claim of the Appellants 
that the Amendment is o f broader reach (Appellants’ Brief, 
P- H 8).

But after that determination we differ with the brief for 
the United States. Let us take first the conclusion there 
shown as to the two bills. The Attorney General says:

“ The debates on these bills show that some legislators, 
on both the majority and minority sides, expressed the

II.



3

view that this principle o f equality under law would, 
if enforced, destroy racial segregation in state schools.” 
(Brief, p. 32)

W e assume that the Attorney General speaks of separate 
equal State schools. W e disagree with this conclusion.

To support this conclusion, the Attorney General quotes 
statements by Representative Dawson of Pennsylvania as 
to the Freedmen’s Bureau Bill and Senator Cowan of Penn­
sylvania and Representatives Kerr of Indiana, Rogers of 
New Jersey and Delano of Ohio as to the Civil Rights Act. 
W e shall take them up one by one.

Representative Dawson voted against the Freedmen’s 
Bureau Bill.1 He was, as the Attorney General says, not 
speaking of the meaning of the Bill but of the general policy 
of the radicals; he did not say what that Bill would do but 
what he thought the radicals wanted to do. He cannot be 
counted as one who said that the Bill would abolish segre­
gated schools.

Senator Cowan of Pennsylvania was a strong opponent 
of the Civil Rights Act and voted against its passage.2 He 
later modified radically the views that he expressed earlier 
in the debate which are quoted by the Attorney General 
(Brief, p. 27). He followed Senator Trumbull’s interpreta­
tion that the Act conferred only

“ . . . the rights which are here enumerated. . . ,” 3

He cannot be taken to have thought that the Act abolished 
school segregation.

^ o n g . Globe, 39th Cong., 1st Sess. (1866) 688.
2 Id. at p. 607. He also voted to uphold the President’s veto. Id. at 

p. 1809.
2 Id. atp. 1781.



4

Representative Kerr of Indiana voted against the Act.4 
As his remarks quoted by the Attorney General (Brief, pp. 
28-9) make clear, he did not talk about a situation where 
separate schools were provided for both races; he limited his 
remarks to the case where schools were provided for the 
white and not for the Negro. His views do not bear on our 
issue.

Representative Rogers voted against the Act.5 His views 
both as to the Act and as to the Fourteenth Amendment and 
the school question were unique as we have already shown 
(Appellees’ Brief, pp. 93, 106-7).

Representative Delano, alone of those here discussed, 
voted for the Act.6 But as is again evident from the quota­
tion in the Brief for the United States (Brief, pp. 30-1), he, 
like Mr. Kerr, was speaking of the situation where the 
Negro was excluded completely from the schools. He can­
not be taken to have meant that the Act would strike down 
separate schools for Negroes.

Where, then, are those on the majority side who believed 
that these statutes would outlaw school segregation as we 
know it ? There were none. But there were those on the ma­
jority side who considered that these statutes would not 
abolish school segregation. These, the Attorney General 
either minimizes or ignores.

First, there was Senator Trumbull of Illinois, patron of 
the Civil Rights Act and Chairman of the Senate Judiciary 
Committee. W e quote his statement as to the Act again:

“ The first section of the bill defines what I under­
stand to be civil rights: the right to make and enforce

4 Id. at p. 1367. He was recorded as not voting on the question of 
sustaining or overruling the veto. Id. at p. 1861.

5 Id. at p. 1367. He voted to uphold the President’s veto. Id. at
p. 1861.

6 Id. at p. 1367. He also voted to override the veto. Id. at p. 1861.



5

contracts, to sue and be sued, and to give evidence, to 
inherit, purchase, sell, lease, hold, and convey real and 
personal property.

*  *  *

“This bill has nothing to do with the political rights 
or status of parties. It is confined exclusively to their 
civil rights, such rights as should appertain to every 
free man.” 7

This we may note is the same Senator Trumbull who, in 
1872, said:

“ The right to go to school is not a civil right and 
never was.” 8

In the House, there was Representative Wilson of Iowa, 
Chairman of the House Judiciary Committee and in charge 
of the progress o f the Act through the House. He made his 
position unmistakable:

“ Do [the provisions of the bill] mean that in all things 
civil, social, political, all citizens, without distinction of 
race or color, shall be equal ? By no means can they be 
so construed. . . . Nor do they mean that . . . their chil­
dren shall attend the same schools. These are not civil 
rights or immunities.” 9

sjf sfc

“ He knows, as every man knows, that this Bill refers 
to those rights which belong to men as citizens of the 
United States and none other ; and when he talks of 
setting aside the school laws and jury laws and fran­
chise laws of the States by the Bill now under considera­
tion, he steps beyond what he must know to be the rule 
of construction which must apply here, and as the result

1 Id. at p. 475.
8 Cong. Globe, 42nd Cong., 2nd Sess. (1872) 3189.
8 Cong. Globe, 39th Cong., 1st Sess. (1866) 1117.



6

of which this Bill can only relate to matters within the 
control of Congress.” 10

These statements cannot be minimized as the Attorney 
General attempts to do (Brief, p. 28). They are clear and 
directly on the point.

In accordance with the rule that this Court has established, 
we take these statements of the responsible Committee Chair­
men as authoritative guides to the meaning of this legisla­
tion. The Civil Rights Act was not intended to abolish seg­
regation in the schools.

Since the Attorney General and all others except the Ap­
pellants agree that the only purpose of the Fourteenth 
Amendment was to cover the same ground as the Civil 
Rights Act, our inquiry is nearly at an end. But we cannot 
stop here for the Attorney General continues by drawing 
conclusions which are quite at variance with what should 
have been his premises.

He concludes that

“ The civil rights legislation enacted by the 39th Con­
gress was designed to strike down distinctions based 
on race or color.” (Brief, p. 113)

If he means some distinctions, we agree; if he means all 
distinctions, we cannot agree for the evidence is to the con­
trary. He continues by stating that, when the minority ex­
pressed the view that the Civil Rights Act would strike down 
segregation in the schools,

“ This view was not disputed by the majority.” 
(Brief p. 115)

Again we cannot agree for Trumbull and Wilson disputed 
it explicitly. W e hasten to add that, even if the statement

10 Id. at p. 1294.



7

were supported by the record, uncontradicted statements 
of opponents are no guide to legislative interpretation.11

But our disagreement has still further to go. The Attorney 
General implies the opposite of his explicit statement that 
the Amendment and the Civil Rights Act cover the same 
ground when he asserts in connection with the Amendment 
that it was not

“ . . . necessary or appropriate to catalog exhaustively 
the specific application of its general principle.”

And his general principle is, we are told, that the Amend­
ment

“  . . . would prohibit all legislation by the states drawn 
on the basis of race and color.” (Brief, p. 114)

Let us examine this general principle. In 1866, the Con­
stitution contained no limitation on the power of the States 
to determine to whom the right of suffrage could be given. 
Many o f the States, north and south, prohibited the Negro 
from voting by legislation. This was certainly legislation 
“ drawn on the basis of race and color.”  Was the Fourteenth 
Amendment designed to abolish this ?

Senator Howard of Michigan, a member of the Joint 
Committee on Reconstruction and the senator in charge of 
the Amendment in the Senate, is our guide on this question. 
He said:

“ But sir, the first section of the proposed amendment 
does not give to either of these classes the right of 
voting.” 12

11Schweamann Brothers v. Calvert Distillers Corp., 341 U. S. 384 
(1951).

12 Cong. Globe, 39th Cong., 1st Sess. (1866) 2765.



8

He said the same thing at a later date:

“ The Committee were of opinion that the States are 
not yet prepared to sanction so fundamental a change 
as would be the concession of the right of suffrage to 
the colored race.” 13

Why was not the right of suffrage included ? Because, said 
Senator Howard, it was

“ • . . not regarded as one of those fundamental rights 
lying at the basis o f all society and without which a 
people cannot exist except as slaves, subject to a despot­
ism.” 14

The Attorney General cannot therefore be correct in his 
conclusion that the Amendment proscribed “all legislation 
. . . drawn on the basis of race and color.” Here is one field—  
a right that we now regard as most fundamental in our 
democracy— that the Amendment was designed not to cover. 
That was covered by a later and different amendment to the 
Constitution. And Senator Trumbull, patron of the Civil 
Rights Act, made it equally clear that the Act had no effect 
on statutes prohibiting miscegenation.15 In sum, there was 
general agreement that the scope of operation of the Four­
teenth Amendment was limited to “ fundamental rights,”  as 
Senator Howard, its chief Senate proponent, made unequivo­
cally clear. Most o f these rights were, contrary to the con­
clusion of the Attorney General (Brief, p. 114), catalogued

13 Id. at p. 2896. Senator Poland of Vermont, another radical leader, 
spoke in the same vein. Id. at p. 2961.

14 Id. at p. 2765.
15 Id. at p. 600.



9

by Thaddeus Stevens.16 They were also catalogued by Sena­
tor Howard.17 In neither catalogue are schools included.

Despite his agreement twice stated (Brief, pp. 21-2, 109) 
that the Amendment was designed to cover only the same 
ground as that covered by the Civil Rights Act, the Attorney 
General implies that it may have gone further. He refers to 
Stevens’ statement (Brief, p. 44). That statement, given in 
full in the Appellees’ Brief, is repeated here:

“ Some answer, ‘your civil rights bill secures the same 
things.’ That is partly true, but a law is repealable by 
a majority. And I need hardly say that the first time 
that the South with their copperhead allies obtain the 
command of Congress it will be repealed. . . .” 18

Here Stevens’ meaning is clear: the two covered the same 
ground ; the only difference lay in that the Amendment could 
not be repealed. And Stevens, like Howard, made it clear 
that the Amendment did not go all the w ay:

“ It falls far short of my wishes. . . ,” 19

Stevens, like Howard,20 Garfield,21 Rogers,22 Poland,23 Hen­
derson24 and many others, put it beyond doubt that the 
Amendment and the Civil Rights Act had the same applica­
tion. This is the accepted interpretation.

leId. at p. 2459; Appellees’ Brief, p. 105.
17 Cong. Globe, 39th Cong., 1st Sess. (1866) 2765; Appellees’ Brief,

pp. 108-10.
18 Cong. Globe, 39th Cong., 1st Sess. (1866) 2459.
™Ibid.
20 Id. at p. 2896.
21 Id. at p. 2462.
22 Id. at p. 2538.
23 Id. at p. 2961.
24 Id. at p. 3031.



10

The Attorney General makes another point. He says:

“ It is noteworthy that one of the majority spokesmen 
. . . illustrated the racial discriminations which the 
Amendment would reach by reference to a state law 
•discriminating against Negroes in public schools.” 
(Brief, p. 114)

That is a true statement. But it tends to confuse the issue. 
The spokesman was Senator Howe of Wisconsin. His re­
marks are quoted by the Attorney General (Brief, p. 54). 
He complained of a Florida statute that taxed both whites 
and Negroes to support the white schools and then taxed the 
Negroes again to support the Negro schools.25 There seems 
to us no question as to the inequality of this statute, but it 
seems to us to have little relevance to the constitutionality 
o f segregated schools. The vice of the statute is obvious; the 
remarks, in this connection, are hardly “noteworthy.”

The Attorney General passes then to the history of school 
legislation in the District of Columbia (Brief, pp. 69-72). 
This history, he asserts, is of small significance ; Congress 
was almost unconscious when it acted to establish and to 
retain segregated schools in the 1860’s. The actions of 
Congress, he says, are unreliable; it is only the words that 
give enlightenment. Words, in his view, speak louder than 
actions. Merely to state this thesis is to refute it. When 
Congress first established schools for the District of Co­
lumbia in 1862, a conscious choice was required; schools 
should either be segregated or mixed. Congress chose the 
segregated course.26 It reiterated its decision in 1864.27 The 
39th Congress that proposed the Fourteenth Amendment

25 Id. at App. p. 219.
2612 Stat. 394, 407, 537 (1862).
2713 Stat. 187 (1864).



11

enacted, almost simultaneously with its proposal, two stat­
utes relating to and retaining the District’s segregated 
schools.28 Can Congress have been unconscious o f the segre­
gation existing pursuant to its will under its nose? That 
cannot be true. Appellants have told us in some detail how 
Congress outlawed segregation in District transportation in 
1865 (Appellants’ Brief, pp. 77-78). That was just one 
year before the proposal o f the Amendment. But that is 
not the end of the story. In 1868 and 1869, Congress acted 
again; a District school law was passed which did not abolish 
segregation.29 This must have caused some thought for it 
was vetoed by the President.30 Was Congress asleep for 
this whole period? It was certainly not asleep in 1871 and 
1872 when it debated at length a bill to amalgamate the 
District schools (Appellees’ Brief, pp. 130-4). No bill for 
this purpose could achieve passage.

W e consider the record from the District convincing 
evidence of Congressional intention. It cannot be summarily 
dismissed as inconsequential. It is an accurate reflection o f 
the temper of the Congress that proposed the Fourteenth 
Amendment.

As to the legislation that was proposed in the 1870’s, the 
Attorney General presents no full discussion (Brief, pp. 
76-86). He quotes Sumner and Butler and their generali­
zations on equality. But he misses the point. The point is 
that no one ever said that the Fourteenth Amendment abol­
ished segregated schools; no one ever suggested that legis­
lation was unnecessary because the Amendment had already 
done the job. In sum, all agreed that, in order to abolish 
segregated schools, additional legislation was required. The

2814 Stat. 216, 342 (1866).
29 Cong. Globe, 40th Cong., 2nd Sess. (1868) 3900; Cong. Globe, 

40th Cong., 3rd Sess. (1869) 919.
30 Id. at p. 1164.



12

argument arose over the power of Congress to legislate and 
the expediency of the legislation. These were, to a large 
degree, the same men who proposed the Amendment. Their 
views confirm its meaning.

In conclusion, we cannot agree with the Attorney General 
that, in the legislative history, there is

“ . . . no conclusive evidence of a specific understanding 
as to the effect of the Fourteenth Amendment on school 
segregation. . . .”  (Brief, p. 125)

W e believe that there is substantial affirmative evidence that 
the Amendment was understood not to affect school segre­
gation. W e know from Senator Trumbull and Representa­
tive Wilson that the Civil Rights Act of 1866 was not to 
affect school segregation. W e know from many, including 
the Attorney General, that the Amendment was designed 
to cover only the rights covered by the Civil Rights Act. 
W e know that all through this period Congress fostered 
segregated schools in the District o f Columbia. W e know 
that the later civil rights history contains no assertion that 
the Amendment of its own force abolished school segrega­
tion.

In our view, the evidence is convincing. Congress did not 
intend to abolish segregated schools.

III.
THE STATE H ISTORY

The Attorney General makes no thorough review of the 
history as it may be derived from the records of the several 
States.31 He draws only three conclusions that require com­
ment. And the comment may be quite brief.

31 It may be that such a review is made in the Appendix to his brief, 
but, at the time that this brief went to the printer, his Appendix has 
been promised (pp. 4, n.3 and 90, n.93) but not produced.



13

The Attorney General despairs o f reaching a decision 
on the State question. That is, he says, because there is no 
evidence of

. . an awareness that the Fourteenth Amendment 
might be relevant in determining the basis on which 
public, education was furnished.” (Brief, p. 99)

W e agree to some extent with this point. And we consider 
it obvious that it is just the point. To show why is simple.

He cannot mean that there was no general awareness of 
the Fourteenth Amendment and of its purpose. Certainly 
the Amendment created an issue of paramount importance 
and interest from 1866 until 1870.

By the same token, he cannot mean that there was no 
general awareness of schools, and particularly segregated 
schools. The nation was in educational ferment in the period 
just following the Civil War. This was particularly true in 
the southern States where systems of public schools were 
universally established for the first time.

He means that no one had any awareness that the Four­
teenth Amendment had the effect of abolishing segregated 
schools. From this he can draw no conclusion. But it seems 
to us that the conclusion is obvious. If the framers of the 
Fourteenth Amendment in Congress and the legislators 
that voted to ratify it had intended that it should abolish 
segregation in the public schools, there would have been 
and have been evidence of the awareness which the Attor­
ney General has sought and cannot find. W e take that lack 
of evidence to be the best evidence that the legislators did 
not intend to put segregated schools beyond the constitu­
tional pale when they voted to ratify the Fourteenth Amend­
ment.

But from that basic misconception, the Attorney General 
moves on to prove too much. He asserts that legislation



14

(contemporaneous with ratification) to establish segregated 
schools has no significance in establishing the climate of 
legislative opinion because there is no evidence of awareness. 
He asserts that 5 different hypotheses may be established 
from that apparently unrelated evidence (Brief, pp. 105-6). 
O f these he asserts as most likely the hypothesis that some 
but not much education was required for both races if any 
were offered to either (Brief, p. 108). He asserts as least 
likely that the legislators chose the separate but equal stand­
ard (Brief, p. 106).

But it seems to us that there is some evidence of aware­
ness and evidence of awareness of the separate but equal 
standard. W e have not examined all the school statutes of 
the reconstruction period; time has not permitted. But here 
are two examples.

The Virginia statute of 1870 is in almost the same words 
as the statute of today. It stated:

“ . . . provided, that white and colored persons shall not 
be taught in the same school, but in separate schools, 
under the same general regulations as to management, 
usefulness, and efficiency. . . ,” 32

The Georgia statute of 1870 provided:

“ Section 32. And be it further enacted, that it shall 
be the duty o f the trustees, in their respective districts, 
to make all necessary arrangements for the instruction 
of the white and colored youth of the district in sepa­
rate schools. They shall provide the same facilities for 
each, both as regards school-houses and fixtures, and 
the attainments and abilities, length of term-time, etc.; 
but the children of the white and colored races shall not 
be taught together in any subdistrict of the State.” 33

32 Va. Acts (1869-70) 413.
33 Ga. Laws (1870) 57.



15

Can these statutes have more than one interpretation? 
W e think not. They wrote the separate but equal doctrine 
into the public school laws of Virginia and Georgia. And 
these statutes were both enacted by legislatures that ratified 
the Fourteenth Amendment.

W e believe this to be substantial evidence that the State 
legislatures had an awareness of their obligation to provide 
equal schools. Many of them may not have formalized the 
constitutional standard of separate but equal into their stat­
utes but at least some recognized the standard and enacted 
it into law. W e do not believe that the evidence supports 
the conclusion that the separate but equal doctrine was a 
thing unknown.

That schools may not have been in fact at once equal is 
no secret. But local prejudices cannot be overlooked; those 
who paid most of the taxes were reluctant to see much of 
their money go for the exclusive benefit o f those that paid 
few of the taxes. But that factor has no relevance to legis­
lative intent or understanding.

Finally, the Attorney General concludes that the early 
State decisions fail to

“ . . .  evidence any general and definite contemporaneous 
judicial construction of the Amendment as applied to 
school segregation.” (Brief, p. 104)

W e may, with him, disregard those State cases that depend 
entirely on State law. But it is difficult for us to agree that 
no conclusion may be drawn from the other cases cited by 
the Attorney General. The decisions are almost all on our 
side. The Attorney General cites, as do we, cases from the 
highest courts of California, Indiana, New York and Ohio 
holding that segregated schools did not offend the Four­
teenth Amendment. His only authority to the contrary is a



16

case from “ a lower court in Pennsylvania”  so obscurely re­
ported that it had escaped our notice (Brief, pp. 103-4).34 His 
conclusion, derived from this balance of authority, seems 
erroneous, no matter how partisan the observer may be.

W e conclude that the lack of direct evidence as to the 
relationship of the Amendment and the schools is firm evi­
dence that the legislators neither contemplated nor under­
stood that the Amendment required the end of school segre­
gation. W e conclude further that there is affirmative evi­
dence from legislatures that ratified the Amendment that 
equality in education was required. The early State decisions 
confirm these conclusions.

W e invite the Attorney General here, as in the case of the 
record from Congress, to climb down from his historical 
fence.

IV .
THE JUDICIAL POWER

Counsel in these cases have shown a marked disagreement 
as to the investigation desired by the Court in response to its 
question as to the judicial power. The Attorney General, 
although he touches upon occasion on the field that we at­
tempted to explore, has for the most part taken off in an­
other direction.

He states first that a case or controversy exists before the 
Court; we are in agreement (Brief, pp. 133-5). He states 
last that the cases involving “political questions” are not in 
point (Brief, pp. 149-51). With that view, we are less in

34Compare Ward v. Flood, 48 Cal. 36 (1874), Cory v. Carter, 48 
Ind. 327 (1874), People ex rel. Dietz v. Easton, 13 Abb. Prac. (N. S.) 
159 (1872), and State ex rel. Games v. McCann, 21 Ohio State 198 
(1871), with Commonwealth v. Davis, 10 Weekly Notes 156 (Court 
of Common Pleas, Crawford County, Pennsylvania, 1881). The judge 
there cited no relevant authority.



17

agreement. It is true that no decision in this case will inter­
fere with the conduct of foreign affairs by the executive 
branch of the government. But that is a superficial analysis. 
Many of the same considerations are applicable (Appellees’ 
Brief, pp. 37-40). The Court is not dealing here, as it was 
in the graduate school cases, with a dozen or so institutions 
to which a mere handful of applicants of color sought ad­
mission.35 The Court is, in the last though not the 
first analysis, dealing with thousands of local school districts 
and schools. Is each to be the subject of litigation in the 
District Courts ? Are those courts to manage the local school 
systems for a time? That merely points up that this Court, 
as in the political question cases, is dealing with a problem 
normally outside the scope of the judicial machinery. The 
shoe does not fit the foot. That fact is, of itself, evidence 
that the proper place for solution of the problem is in the 
legislature.

W e do not quarrel with the Attorney General when he 
says that the Fourteenth Amendment is self-executing with­
out further Congressional implementation (Brief, pp. 135- 
8). Indeed, we agree. W e have expressed our view on the 
limits of the power of Congress (Appellees’ Brief, pp. 39- 
41). Nor do we complain of his quotations from early de­
cisions of this Court which declare that the purpose of the 
Fourteenth Amendment was to protect the Negro in his 
fundamental rights (Brief, pp. 118-25). Those decisions ac­
cord exactly with what was said in the 39th Congress.36 
But those decisions do not declare that those fundamental 
rights included the right to go to a mixed school or that the

85 There are now only 7 Negroes in the graduate schools of the Uni­
versity of Virginia, none in those of the University of South Carolina.

36 See the words of Senator Howard quoted above at page 8.



18

separate but equal doctrine offends the Amendment. When 
that doctrine first came before this Court, it was upheld.37

The Attorney General injects a new idea in his argument 
about the recent school cases (Brief, pp. 143-9). He begins 
with a statement that the Fourteenth Amendment requires 
the maintenance of public schools (Brief, p. 143). This is 
a novel thought, not shared by President Grant38 and un­
supported by any decision of this Court. He then seems to 
go on to say that, prior to the Gaines case,39 this Court said 
simply that education was a “ privilege” and not a “ right” 
and that a State could grant or deny “privileges” unequally 
at will and with impunity. Then, he asserts, in the Gaines 
case for the first time the Court required equality of “privi­
lege.”

W e assume that the Attorney General would make the 
same argument as to transportation. But there his argu­
ment can hardly be valid. This Court was careful to speak 
of equality when the matter was first before it. In Plessy 
v. Ferguson, 163 U. S. 537, 543 (1896), this Court said:

“ A  statute which implies merely a legal distinction 
between the white and colored races . . . has no tendency 
to destroy the legal equality of the two races. . . .”

Would the result in Plessy v. Ferguson40 have been the same 
if the Louisiana statute had required the railroad to refuse 
transportation to the Negro? That can hardly be imagined.

In Gong Lum v. Rice, 275 U. S. 78 (1927), there was no 
assertion of factual inequality. That was not an issue. The 
Supreme Court of Mississippi had found that the school 
system there required schools for both races

37 Plessy v. Ferguson, 163 U. S. 537 (1896).
38 Brief for Appellees, p. 146.
39Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938)
40 The case came up on a writ of prohibition. Factual inequality was 

neither alleged nor in issue.



19

“  . each having- the same curriculum, and each hav­
ing- the same number of months of school term. . . ”
(275 U. S. at p. 84)

This Court apparently took that as an assertion of equality 
unchallenged by the Appellant. Factual inequality was for 
the first time at issue in the Gaines case, and this Court, 
having found factual inequality, was quick to apply the well 
established rule that, absent equality, separation offends the 
Constitution. That case and its successors did not give edu­
cation a constitutional sanction which it had not previously 
enjoyed; the Court there merely applied the established doc­
trine, a doctrine that it refused to re-examine even though 
asked to do so.41

W e now approach the Attorney General’s final argument 
on the Fourteenth Amendment. First, we are told that al­
though the background o f a constitutional provision is of 
assistance in determining its meaning, there is no necessity 
to find specific evidence that the framers intended that spe­
cific meaning (Brief, p. 126). But the question rather is 
where, as here, the intent and meaning of the framers is 
unmistakable (this Amendment shall not be construed to 
abolish segregated schools), may this Court adopt the oppo­
site interpretation (the Amendment is hereby construed to 
abolish segregated schools). The Attorney General, deny­
ing the premise, provides no assistance in reaching the prop­
er answer. Again, we repeat our view that such an interpre­
tation is an unwarranted extension o f the judicial power.

But, for the purpose of argument, we will assume the 
erroneous premise of the Attorney General that the mean­
ing o f the framers as to the effect o f the Amendment on 
school segregation is indeterminate. Then, he says, whether 
segregated schools met the constitutional test o f the Nine­

« Sweatt v. Painter, 339 U. S. 629,636 ( 19S0).



20

teenth Century is irrelevant, for conditions have so changed 
that a statute establishing them is today an arbitrary fiat 
(Brief, pp. 142-3). And the test to be applied is a simple 
one:

“ But reasonableness is not measured in the abstract; 
the standard of reasonableness is found in the pro­
visions and policy of the Fourteenth Amendment.” 
(Brief, pp. 138-9)

W e do not agree with his statement of the standard for 
the standard that he suggests cannot possibly be applied. 
The test, as this Court has told us, is whether the classifi­
cation is reasonable in the light o f the particular facts. The 
Amendment provides the standard of reasonableness; the 
standard cannot lead us directly back to the Amendment. 
Reasonableness can only be determined from the facts; un­
reasonableness must appear from the facts.

If we are to look for changed conditions and evidence of 
unreasonableness, we turn first to the record. There we find 
it urged by witnesses for the Appellants that segregated 
schools constitute “an official insult” (R. 195) and are evi­
dence of “prejudice”  (R. 210). In 1872, Charles Sumner 
spoke of

“ . . . the prejudice of color which pursues its victim 
in the long pilgrimage from the cradle to the grave.

J ) 4 2

He spoke again:

“ The separate school has for its badge inequality.” 42 43

42 Cong. Globe, 42nd Cong., 2nd Sess. (1872) 384.
*sId. at p. 434. These same arguments were presented and disre­

garded in Plessy v. Ferguson. See Appellees’ Brief, pp. 48-9.



21

His arguments are identical with those of record here. The 
record provides no evidence of changed conditions.

O f course, conditions have changed greatly since 1870. 
W e cannot overlook the jet plane and the atomic cannon. 
Yet the record is bare of evidence of the extent of the perti­
nent changes in Prince Edward County, Virginia. And the 
fact o f change is irrelevant unless the change has made seg­
regation in the schools beyond the bounds of reason.

The Attorney General has remarked upon the record and 
the findings in the Kansas case (Brief, p. 149). He has not 
mentioned the record and the findings in this case. He will 
find little to comfort him there. The evidence is that in the 
Prince Edward County high schools segregated education is 
best for the pupils o f both races. The findings based on that 
evidence are clear;

“ W e have found no hurt or harm to either race. That 
ends our inquiry.” (R. 621-2)

In these circumstances, are segregated high schools in 
Prince Edward County, Virginia, beyond reason? W e sub­
mit that a negative answer is required. As a result, the 
Amendment is not offended. That should end the inquiry 
for this Court as it did for the court below.

V.
CONCLUSION

In this short brief we have attempted to make clear our 
chief points of disagreement with the brief of the Attorney 
General. He asks the Court to take a long stride into a field 
where history is clear, traditions are long and emotions are 
strong. W e ask the Court to exercise the restraint that 
accords with its highest traditions.



22

State action is proper until it has been shown to be clearly 
wrong. There has been no such showing in this case, either 
before the court below or by the Appellants or by the At­
torney General here. On the contrary, the evidence is, as the 
court below found, that the State action is reasonable and 
proper.

Dated December 7,1953.

Respectfully submitted,

T. Justin M oore 
A rchibald G. R obertson 
John  W. R iely

H unton, W illiams, A nderson, T. Justin M oore, Jr.
Gay & M oore 1003 Electric Building

Of Counsel Richmond 12, Virginia
Counsel for the Prince Edward 

County School Authorities

J. L indsay A lmond, Jr.
A ttorney General 

Supreme Court Building 
Richmond, Virginia

H enry T. W ick ham
Special Assistant to the 

Attorney General 
State-Planters Bank Building 
Richmond, Virginia

For the Commonwealth of Virginia



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