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

    * *

IN THE

^uprmc (Emtrt of tin' llmttb Watt's
October Term, 1952 

No. 191

--------------- o---------------
D orothy D avis, et al.,

vs.
Appellant.s%

County S chool B oard of P rince E dward 
County , V irginia, et al.,

Appellees.

A ppeal from the U nited States D istrict Court 
for the E astern D istrict of V irginia

------------------------o----------------- .------

BRIEF FOR APPELLANTS 

Opinion Below

The opinion of the statutory three-judge District Court 
for the Eastern District of Virginia is reported at 103 F. 
Supp. 337-341 and appears in the record (B. 617-623).

Jurisdiction

The final decree of the District Court was entered on 
March 7, 1952 (B. 623). The petition for appeal was filed 
and the appeal was allowed on May 5, 1952 (B. 625, 630, 
633).

This is an appeal from a decree. denying an injunction 
in a civil action required by an act of Congress to lie heard 
and determined by a district court of three judges. The



%

jurisdiction of this Court to review by direct appeal ,he
Stnfp° p1 ^  111 -tlllS CaSG ^  conferred by Title 28, United btntos Code, Sections 1253 and 2101 (b).

Questions Presented

1. Whether Article IX, Section 140 of the Constitution 
of Virginia, and Title 22 Chanter 19 w  i
22-291 of the fw i n r  • . apter 12’ A,tlcle T Section 
0. ~ 0t. he Cotle f  V lronila of 1950, which require segre-
hftho /v  I"0"0' Uy 'SCll° 0lS f0r Negro * «* * * ■  residing
o r lhi }’’ T u m? lid " nd Ulleil 0̂1'eeable as violative 
of lights secured by the due process and equal protection 
clauses ot the Fourteenth Amendment.

2. Whether under the due process and equal protection
titled^ ° f f T Fourtoenth Anie,ldment appellants are en- 
e- on d 6qUa 7 m-al! 3Spects of PnbHc secoiularv edn- 
fnc n F T * * ’ 1,10llldinff a11 educationally significant 
a c^ r 'in  nddT' !  deV0l0pnient of mind and char-
curricula. ° CqUahty 1,1 ph^ ical facilities and

3: hethcr’ aftor finding that the buildings facilities
curricula and means of transportation furnished appellants

; : ; f “  students, the' D i l ' . t
mo c lr f lflVt', 1Sanctl a d"c|,<1" forthwith restraining 
appellees from excluding infant appellants from the supe
no, public secondary school facilities of Prince Edward 
C ou,lty tlie basis of race and color.

4. Whether the decree issued in this case can he effeo 
lively enforced without involving the District Court in



3

Constitutional Provision and Statute Involved

Article IX, Section 140 of the Constitution of Virginia, 
provides as follows:

“ White and colored children shall not he taught in
the same school.”

Title 22, Chapter 12, Article 1, Section 22-221 of the 
Code of Virginia of 1950 provides as follows:

“ White and colored persons shall not he taught in 
the same school, hut shall he taught in separate 
schools, under the same general regulations as to 
management, usefulness and efficiency.”

Statement of the Case

On May 23, 1951, appellants, infant Negro high school 
students residing in tho County of Prince Edward, Vir­
ginia, and their parents and guardians, began the instant 
action against appellees, County School Board of Prince 
Edward County, Virginia, and T. J. Mcllwaine, Division 
Superintendent of Schools of Prince Edward County, Vir­
ginia,, who maintain, operate and control the public sec­
ondary schools of Prince Edward County.

The complaint (K. 5-30) alleged that said appellees 
maintain separate public secondary schools for Negro and 
non-Negro children of public school age residing in the 
County pursuant to the provisions of the Article IX, Sec­
tion 140 of the Constitution of Virginia, and Title 22, Chap­
ter 12, Article 1, Section 22-221, of the Code of Virginia of 
1950, which require that white and colored children he 
taught in separate schools.

The complaint further alleged that the public secondary 
school for Negro children was inferior and unequal to the 
public secondary schools for white children in plant, equip­
ment, curricula, and other opportunities, advantages and



4

facilities; and that it was impossible for infant appellants 
to secure or obtain public secondary educational oppor­
tunities, advantages or facilities equal to those afforded 
white children similarly situated; or for tlie adult appel­
lants to secure or obtain the right and privilege of sending 
their children to public secondary schools in said County 
with educational opportunities, advantages and facilities 
equal to those afforded white children, as long as said 
appellees enforce or execute the laws aforesaid or pursue 
any policy, custom or usage of segregating students on the 
basis of race or color in the public secondary schools men­
tioned in the County.

The complaint sought a judgment declaratory of the 
invalidity of said laws as a denial of appellants’ rights 
secured by the due process and equal protection clauses of 
the Fourteenth Amendment and an injunction restraining 
appellees from enforcing said laws and from making any 
distinction based upon race or color among children attend­
ing public secondary schools in Prince Edward County.

Appellees, in their answer, admitted that the physical 
plant and equipment afforded Negro high school students 
at the Robert R. Moton High School were unequal to those 
afforded white high school students at the Farmville and 
Worsham High Schools and that they were enforcing the 
aforesaid constitutional provision and statute. They de­
nied, however, that the practice of racial segregation in the 
public schools contravened any mandate of the federal con­
stitution (R. 32-30). Appellee, the Commonwealth of Vir­
ginia, was permitted to intervene (R. 37). In its answer 
it made the same admissions and the same defense as did 
the original defendants (R. 37-39).

Pursuant to Title 28, United States Code, Section 2284, 
a three-judge District Court was convened and a trial on 
the merits took place in Richmond, Virginia on February 
25-29, 1952 (R. 39-024)..



5

At the trial both appellants and appellees introduced 
evidence, including expert testimony: (1) as to the extent 
of the existing inequalities at the Mot on High School with 
respect to physical facilities and curricula as compared 
with that in the white high schools; and (2) as to whether 
equality of educational opportunities and benefits can be 
afforded Negro children in a racially segregated school 
system. In addition, over objection that such testimony 
was irrelevant and immaterial in that appellants were en­
titled to educational equality now (R. 329), appellees were 
permitted to show that a proposed new Negro high school 
designed to correct the admitted inequalities in physical 
facilities would be in operation by September, 1953 (R, 
327-338).

The District Court found Mot on High School inferior 
not only in plant and facilities but in curricula and means 
of transportation as well (R. (122-623), and ordered appel­
lees to forthwith provide appellants with curricula and 
transportation facilities “ substantially”  equal to those 
available to white pupils, and to “ proceed with all reason­
able diligence and dispatch to remove”  the existing in, 
equality “ by building, furnishing and providing a high 
school building and facilities for Negro students, in accord­
ance with the program mentioned * * * in the testimony on 
behalf of the defendants herein, or otherwise * * * ”  (R, 
(124).

The Court refused to either enjoin enforcement of the 
constitutional and statutory provisions here under attack 
or to restrain appellees from assigning secondary school 
space in the County on the basis of race or color (R. 619* 
624). The validity of the segregation provisions was sus­
tained upon the following grounds:

1. That on the issue of the effects of segregation in 
education “ the Court cannot say that the plaintiffs’ evi­
dence overbalances the defendants’. ”  It accepted “ as apt



6

and able precedent “ Briggs v. Elliott, 98 P. Supp. 529 
(E. D. S. C. 1951) and Carr v. Corning, 182 F. 2d 14 (C. A. 
lb C. 1950), cases which “ refused to decree that segre­
gation he abolished incontinently”  (Tf. 019).

2. That nullification of the segregation provisions is 
unwarranted in view of evidence that:

(a) They declare “ one of the ways of life in 
Virginia. Separation of white and colored ‘ chil­
dren’ in the public schools of Virginia has for gen­
erations been a part of the mores of her people. To 
have separate schools has been their use and wont. 
The school laws chronicle separation as an unbroken 
usage in Virginia for more than eightv years * * * ”  
(R. 620).

(b) Segregation has begotten greater oppor­
tunities for the Xegro; that Virginia employs as 
many Negro public school teachers as are employed 
in all 31 nonsegregating states; and that “ in 29 of 
the even hundred counties in Virginia, the schools 
and facilities for the colored are equal to the white 
schools, in 17 more they are now superior, and upon 
completion of work authorized or in progress, an­
other 5 will be superior. Of the twenty-seven cities, 
5 have Negro schools and facilities equal to the white 
and 8 more have better Negro schools than white”  
(R. 621).

(c) The testimony that involuntary elimination 
of segregation “ would severely lessen the interest 
of the people of the State in the public schools, lessen 
the financial support, and so injure both races”  was 
“ a weighty practical factor to be considered in 
determining whether a reasonable basis has been 
shown to exist for the continuation of the school 
segregation”  (R. 621).

3. That the Court “ found no hurt or harm to either
race,”  and ended its inquiry, saying: “ It is not for us
to adjudge the policy as right or wrong—that, the Common­
wealth of Virginia ‘ shall determine for itself’ ”  (R 621 - 
622).



7

Errors Relied Upon

Tlie District Court erred:
1. In refusing to enjoin the enforcement of Article IX,, 

Section 140 of the Constitution of Virginia, and Title 22,
^Chapter 12, Article 1, Section 22-221 of the Code of Virginia 

of 1950, upon the grounds that these laws violate rights 
secured by the due process and equal protection clauses ol 
the Fourteenth Amendment to the Constitution of the 
United States.

2. In refusing to forthwith restrain appellees from 
using race as a factor in determining the assignment of 
public secondary educational facilities in Prince Edward 
County, Virginia, after it had found that appellants are 
denied equality of buildings, facilities, curricula and means 
of transportation in violation of the due process and equal 
protection clause of the Fourteenth Amendment.

3. In refusing to hold that appellants are entitled to 
equality in all aspects of the public secondary educational 
process, in addition to equality in physical facilities and 
curricula.

4. In issuing a decree ordering appellees to equalize 
secondary school facilities in the County where such decree 
cannot be effectively enforced without involving the court 
in the daily operation and supervision of schools.

Summary of Argument

The segregation laws of Virginia make a distinction in 
public education based solely on race. This Court has held 
race to be an impermissible basis for legislative classifica- 
tion and has frequently condemned state imposed racial 
distinctions as violative of the Fourteenth Amendment. 
Those decisions are decisive of the issue here. The btate 
cannot here justify such distinctions at the secondary level



8

of public education, nor is the legislation validated by 
reason of its long continuance.

The Fourteenth Amendment also prohibits the State 
from discriminating on the basis of race in affording the 
benefits of public education to its citizens. This prohibition 
is not limited to physical facilities but extends to all factors 
of educational significance.

The record in this case demonstrates that Negro chil­
dren are denied educational benefits and opportunities 
which the State itself asserts as the fundamental objectives 
of its public secondary educational program. It also dem­
onstrates that segregation as here practiced is detrimental 
to the educational development of Negro children. The 
State did not substantially controvert this showing but 
urged that the present removal of State restrictions would 
not benefit Negro children because their acceptance by 
white children would result in the same damage. This 
Court has held that this consideration is no defense.

Since the District Court found as a fact that the Negro 
high school is inferior to the white high schools in physical 
facilities and curricula, it should have enjoined enforce­
ment of the segregation laws. Instead, it issued an equali­
zation decree which postpones educational equality until 
some future time. State laws cannot validly continue in 
operation in the face of such inequalities. The rights as­
serted are personal and present, and the Fourteenth 
Amendment requires that equality be afforded now.

A  fixed relationship between two public school systems 
cannot be established or maintained by judicial decree, 
A decree directing equalization cannot be effectively en­
forced without involving the Court in a continuous super­
vision of the public schools. This is not an appropriate 
judicial function. Moreover there is grave doubt as to 
whether the decree can be effective inasmuch as these school 
authorities have long discriminated against Negro children



notwithstanding a statutory directive to provide equal 
facilities. It is unlikely that more will be accomplished 
under the court’s decree than lias been done pursuant to 
the statute.

We submit that appellants can secure the rights to 
which they are clearly entitled under the Fourteenth 
Amendment only pursuant to a decree which enjoins the 
practice of racial segregation in the public schools and 
prohibits appellees from using race as a factor in affording 
educational benefits in Prince Edward County.

ARGUMENT

I

The school segregation laws of Virginia are in­
valid and unenforceable because violative of rights 
secured by the Fourteenth Amendment.

Article IX, Section 140 of the Constitution of Virginia 
and Title 22, Chapter 12, Article 1, Section 22-221 of the 
Code of Virginia of 1.950, require all Negro pupils to attend 
schools segregated for their use and excludes them from 
schools in which pupils of other racial groups are educated. 
The cleai- vice is that the segregated class is defined wholly 
in terms of race or color—“ simply flial and nothing more.”  
Bucluttuin v. Warley, 245 U. S. 60, 73. The laws here in­
volved, lijce all others which curtail a civil right on a racial 
basis, are “ immediately suspect”  and will be subjected to 
“ the most rigid scrutiny.”  Koremat-m v. United States, 
323 U. S. 214, 216.1

1 See also Ex parte Endo, 32.1 IT. S. 283. 299; United States v. 
Congress of Industrial Organizations. 335 U. S. 106, 140, concur­
ring opinion; Skinner v. Oklahoma, 316 U. S. 535. 544, concurring 
opinion; Hirabayaslii v. United States. 320 U. S. 81. 100; Idem at 
110, concurring opinion; Steele v. Louisville & N. R. Co., 323 U. S.
192. 209.



A legislative classification violates the equal protection 
clause of the Fourteenth Amendment if it is based upon 
nonexistent differences or if the differences are not reason­
ably related to a proper legislative objective.2 Classifica­
tions based upon race or color can never satisfy either 
requirement and consequently are the epitome of arbitrari­
ness. In Skinner v. Oklahoma, 316 U. S. 535, 541, this Court 
held unconstitutional an Oklahoma “ habitual criminal”  
statute providing for sterilization of persons convicted two 
or more times of felonies involving moral turpitude but 
exempting persons convicted of embezzlement because the 
(State of Oklahoma had “ made as invidious a discrimina­
tion as il it had selected a particular race or nationality 
for oppressive treatment.”  Similarly, in Edwards v Cali- 
Jonua, 314 U. S. 160, 184, where this Court invalidated a 
( alifornia statute making it criminal for any person to 
bring or assist in bringing an indigent nonresident into the 
state1, Mr. Justice Jackson, concurring, pointed out that:

“ The mere state of being without funds is a 
neutral fact—constitutionally an irrelevance, like 
race, creed or color.”

Likewise, in Nixon v. Herndon, 273 U. S. 536, 541, where a 
Texas statute confining participation in primary elections 
to white persons-was held to violate the equal protection 
clause, the Court stated:

k.Ldes may do a groat deal of classifying that 
it is difficult to believe rational, but there are limits,, 
and it is too clear tor extended argument that color 
cannot be made the basis of a statutory classification 
affecting the right set up in this case.”

- Skinner v. Oklahoma. .116 U. S. 535; Hartford Steam Boiler 
Inspection dr Insurance Co. v. Harrison. 301 U. S. 45')• Mayflower 
harms v Ten Eyck. 207 U. S. 266; Concordia Fire Insurance Co v 
Illinois. 202 U. S. 535; Nixon v. Merndon. 273 U. S. 536; Air-Wav 
I'.lectric Appliance Corp. v. Day. 266 U. S. 71 ; Trims v. Raich 2.V» 
V- S. 33; Soul hen Railway Co. y. Creese, 216 U. S. 400..



11

This Court has declared that “ distinctions between citi­
zens solely because of their ancestry are by their very 
nature odious to a free people whose institutions are found­
ed upon the doctrine of equality.”  llirabayashi v. United 
States, 320 U. S. 81, 100. See also Korematsu v. United' 
States, supra. It was recognized that, insofar as the fed­
eral government is concerned, the constitutionally con­
ferred right to wage war could temporarily override this 
civil right. Cf. Ex parte Endo, 323 U. S. 283. No state, 
however, can show such constitutional authorization or any 
overriding necessity which could sustain state action found­
ed upon these constitutionally irrelevant and arbitrary con­
siderations. See Oyaina v. California, 332 U. S. 633; Taka- 
hashi v. Fish and (lame Commission, 334 U. S. 410; Shelley 
v. Kraemer, 334 U. S. 1. Indeed, for the past quarter cen­
tury this Court lias consistently held that the Fourteenth 
Amendment invalidates state imposed racial distinctions 
and restrictions in widely separated areas of human en­
deavor: ownership and occupancy of real property, Shelley 
v. Kraemer, supra; Oyaina v. California, supra; pursuit of 
gainful employment or occupation, Takahashi v. Fish and 
(lame Commission, supra; selection of juries, Shepherd v. 
Florida, 341 U. S. 50; Patton v. Mississippi, 332 U. S. 463; 
Pierre v. Louisiana, 306 U. S. 354, Hale v. Kentucky, 303 
U. S. 613; and graduate and professional education, Mc- 
Laurin v. Board of Regents, 339 U. S. 637 ; Sweatt v. Paint­
er, 339 U. S. 629; Sipu-el v. Board of Regents, 332 U. S. 631; 
Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Board of 
Supervisors v. Wilson, 340 U. S. 909.8 3

3 In the area of interstate travel the state’s power is further 
limited by the commerce clause which similarly proscribes racial 
distinctions and restrictions. Morgan v. Virginia, 328 U. S. 373.



12

Segregation as here practiced,, is universally understood 
as imposing on Negroes a badge of inferiority.4 It “ brands 
the Negro with the mark of inferiority and asserts that he 
is not tit to associate with white people.”  5 * It is of a piece 
with the established rule of law in Virginia that it is slan­
derous per_se to call a white person a Negro. Mopsikov v. 
Cook, 122 Va. 579, 95 S. E. 126 (1918); Spencer V. Looney,
116 Va. 767, 82 S. E. 745 (1914).

There has been no showing of any educational objective 
which school segregation subserves. In fact, it frustrates 
realization of the announced objectives of public education 
in Virginia. There are no differences between the races of 
educational significance (R. 180-183). As one authority 
has put it : (i

“  * * * there is not one shred of scientific evi­
dence for the belief that some races are biologically 
superior to others, even though large numbers of 
efforts have,been made to find such evidence.”

Upon this recognized scientists are agreed.7

4 Myrdal. I An American Dilemma 615. 640 (19 44 ); Johnson. 
Patterns of Neyro Segregation 3 (19 43 ); Dollard, Caste and Class 
in A Southern Toien 349-351 (1937) ; Note. 56 Yale I.. J. 1059. 1060 
(1947) ; Note, 49 Columbia L. Rev. 629, 634 (1949; Note 39 Colum­
bia L. Rev. 986. 1003(1939).

•'1 o Secure These Rights. Report o f the President’s Committee 
on Civil Rights, 79.

“ Rose, America Divided; Minority Grouh Relations in the 
United States 170 (1948).

ioQ7o n ntcagUe’ M(in’s MostfDangerous Myth— The Fallacy of Race 
188 (19 45 ); American leachers Association, The Blade and White 
of Rejections for Military Service 5. 29 ( 1944) ; Klineberg, Negro 
Intelligence and Selective Migration (1 9 3 5 ); Peterson & Lanier. 
Studies in the Comparative Abilities of Whites and Negroes Mental 
Measurement Monograph (19 29 ); Clark, Negro Children. Educa­
tional Research Bulletin (19 23 ); Klineberg, Race Differences '343



The District Court in part predicated its decision on the 
ground that the school segregation laws had existed for 
more than eighty years and declared “ one of the ways of 
life in Virginia.”  (R. 620). “ This way of life”  was char­
acterized by one of appellees’ witnesses as “ a by-product, 
and a fearful by-product, of human slavery.”  (IT 462). 
The Fourteenth Amendment was adopted for the express 
purpose of bringing that “ way of life”  to an endKStmuder_ 
v. West Virginia, 100 U. S. 303. In any event, the issue 
here is whether these laws deny rights secured by that 
Amendment. If they do, the observation of the District 
Court is immaterial. Certainly laws acquire no immunity 
from invalidation by virtue of any “ unbroken usage”  
either before or after the adoption of the Fourteenth 
Amendment.

The District Court followed Briggs v. Elliott, 08 F. 
Supp. 529 (E. D. S. C. 1951) and Carr v. Coming, 182 F. 
2d 14 (C. A. 1). C. 1950), each of which relied upon Plessy 
v. Ferguson, 163 U. S. 537, Gong Lum v. Rice, 275 V. S. <8, 
and Gumming v. Board of Education, 175 1 . S. o28.

Cum min g v. Board of Ed neat ion, supra, is not in point. 
There this Court expressly refused to consider the validity 
of racial distinctions in public schools since this issue had 
not been properly raised.

Plessy v. Ferguson, supra, is not applicable since did 
not involve the issues presented here. W hatever doubts 
may once have existed in this respect were removed by 
this Court in Sweatt v. Painter, supra, at pages 635, 636.

Gong Lum v. Rice, is also irrelevant to the issues raised 
in this case. There, a child of Chinese parentage was de­
nied admission to a school maintained exclusively for white 
children and was ordered to attend a school tor Xegio 
children. The power of the state to make racial distinctions 
in its school system was not in issue. Petitioner contended 
that she had a constitutional right to go to school with white



14

children, and that bein'*- compelled lo attend school with 
Negroes, deprived her of the equal protection of the laws.

Further, there was no showing that her educational 
opportunities had been diminished as a result of the state’s 
compulsion, and it was assumed by the Court that equality 
in fact existed. The petitioner was not nnveighing against 
the system but its application which resulted in her clas­
sification as a Negro, and by so much conceded the pro­
priety of # the system itself. Were this not true, this Court 
would not have stated that the issue raised was one “ which 
has been many times decided to Ik* within the constitutional 
power ol tin* state’ ’ and, therefore, did not “ call for very 
full argument and consideration.”

In short, (long Lum raised no issue with respect to the 
state’s power to enforce racial classifications. Hat her, the 
objection went only to treatment under the classification. 
This case, therefore, cannot be pointed to as a controlling 
precedent covering the instant case where the constitu­
tionality of the system itself is under attack and in which 
the existence of inequality lias l>een proved.

In any event, the assumptions in (lout) Lum have been 
rejected by this Court. In Gong Lum, without “ full argu­
ment and consideration,”  the Court assumed the state had 
power to make racial distinctions in its public schools with­
out violating the equal protection clause of the Fourteenth 
Amendment and also that state and lower federal court 
cases cited as controlling-had been correctly decided. These- 
assumptions upon full argument and consideration were 
rejected in the McLaurin and Sweuft cases in relation to, 
racial distinctions in state graduate and professional edu­
cation. Thus, the very basis of the decision in Gong Lum, 
has now been destroyed.

rl his Court has considered the basic issue involved here 
only in.those cases dealing with racial distinctions in edu­
cation at the graduate and professional levels. Missouri



15

ex rel. Gaines r. Canada, 305 U. S. 337; Sipuel v. Board of 
Regents, supra; Fisher v. llursi, 333 U. S. 147; Sweatt v. 
Painter, supra; McLaurin v. Board of Regents, supra. AYe 
submit, therefore, that Virginia’s school segregation la»\vs 
are invalid because they fail to conform to constitutional 
standards and no holding by this Court requires a different 
conclusion.

II

Under the Fourteenth Amendment appellants are 
entitled to equality in all aspects of the educational 
process as well as equality in physical facilities and 
curricula.

Virginia has declared public education to be a govern­
mental function. Article IX, Section 129 of the Constitu­
tion of Virginia provides:

“ The General Assembly shall establish and main­
tain a system of public free schools throughout the 
State.”

The statutes of the State comprehensively provide for the 
entire system of public schools from the elementary school 
through the university.8 The general supervision of this 
system is vested in the State Board of Education.0

The State Board of Education lias defined the State’s 
public educational program as follows:

“ A good public school program should be tie- 
signed to serve the needs of children, youth and

8 V a . Code, 1950, Title 22, Sections 22-1 to 22-330, Title 23. 
Sections 23-1 to 23-180.

0 V a . Const ., Article IX , Section 130; V a . Code, 1950. Title 22. 
Section 22-11.



16

adults. Sucli a program must be flexible so that it 
can be adjusted as the changes of society demand 
and so that it can be adapted to varying local needs 
and conditions. However, as a basis for State-wide 
consideration, it may be said that an adequate pro­
gram ot education should be:

0 )  Offer every child opportunities through 
training m the fundamental skills which includes not 
only the three ‘ It’s, but also human relations and 
ways of thinking;

(2) Provide experiences for physical, mental, 
emotional, moral, and social development which are 
also fundamentals of a balanced educational uro­
gram ; 1

“ (d) Offer rich and stimulating experiences 
which are essential to the development of all phases 
oi good citizenship in a democracy;

“ (4) Provide, through guidance, assistance to 
pupils in making decisions and in selecting studies 
appropriate to their needs and aptitudes;

(o) 1 lepare graduates and those who leave 
school before graduation to enter an occupation with 
basic training m fields of work which they will prob­
ably pursue and in which opportunities are develop­ing ; 1

“ (6) Give adequate preparation for those plan­
ning to enter college; and

(7) Serve the adults of the community bv ex­
tending to them facilities and services desired and
" ™ ‘ as( tlley attempt to solve the problems of life”  (R. 63-64).

It has similarly described the broad function of the high 
school in this program in the following terms:

“ The development of the comprehensive hi<-lt 
school with the broadening and extension of the pro­
gram to meet the changing needs of an increasin'-- 

pupil enrollment lias resulted in a school of the cos-"



17

mopolitan typo which is organized to provide tor the 
educational needs of all groups whether then' school 
objectives he college preparation or work that may 
load into business or the industrial fields It is a 
tvpicallv democratic institution, bringing within one 
organization all types of school work Not only i s 
program of studies but also its related ouiiiculai 
activities are organized on a broad democratic basis 
in order that it may serve as fully as possible tin 
needs of ‘ all the children of all the people (K. «•>).

The immediate and ultimate objectives of the State’s high 
school program are set forth thusly.

“ What are some principles of desirable living? 
In some schools only incidental account has been 
taken of such factors as (1) the pup. ’s emotion 1 
growth, (2) bis aptitudes, (3) his social adjust mi l , 
(4) his interests and purposes, (o) his need to 
planning, (6) his personality development.

“ Since we live in a democratic society, we accept 
‘ the preservation, improvement, and extension o 
democracy’ as an important function ot American 
education'. It follows, therefore, that the process o 
teaching and learning should he m harmony with 
the democratic ideal ’ (R- ho).

The State Board of Education lias likewise recognized 
and pronounced that, “ Growth processes in individuals m 
societv are resultants of continuing interaction between 
individuals and society”  (R.G6); that, “ Learning is a con­
tinuous process”  (R. 66) ; that, “ All learning comes through 
experience”  (R. 06); that, “ in order to achieve self-integ­
rity, self-respect, each student must have a freedom from 
fear and a freedom from any sense ot intei 101 ltv (R. ) -
that “ Students must he taught respect for personality, a 
belief in the equality of human beings, a desire to cooperate 
with others”  (R, 161); and that, “ We must develop good 
will toward individuals and groups whose race, religion, 
and nationality differ from our own”  (R. 161)-



18

These objectives are in accord with the recognized aims 
of public education in America (R. 155, 157). The State’s 
objectives are pursued in Prince Edward County (R. 62, 
64-66), but in a manner limited by the laws requiring segre­
gated schools (R. 66-68).

The District Court concluded that these laws produced 
“ no hurt or harm to either race’ ’ (R. 621-622) and refused 
to enjoin their enforcement. Examination of the record 
demonstrates that this conclusion is manifestly erroneous.

Appellants introduced the testimony of seven experts 
on this issue: l)r. John Julian Brooks, an educator, Direc­
tor of the New Lincoln School of New York City; Dr. M. 
Brewster Smith, a social psychologist, Chairman of the 
Department of Psychology of Vassal- College; Dr. Tsidor 
Chein, a social psychologist, Director of Research of the 
Commission on Community Interrelations of the American 
Jewish Congress; Dr. Kenneth Clark, a child and social 
psychologist, Assistant Professor of Psychology at the 
College of the City of New York; Dr. Horace B. English, 
Professor of Psychology at Ohio State University; Dr. 
Mamie Phipps Clark, a clinical psychologist, Director of 
the Northside Center for Child Development in New York 
City; and Dr. Alfred McClung Leo, Chairman of the De­
partment of Sociology and Anthropology of Brooklyn 
College.

Dr. Brooks described the purposes and objectives of 
public education in America and in Virginia (R. 155-158, 
160-16J), and asserted that educational segregation impov­
erishes the educational opportunities for Negroes and gives 
the Negro school “ a morale, a status, a position that is not 
equal for educational opportunity’ ’ (R. 160). He testified 
further that basic educational objectives are difficult to 
achieve in a segregated school and are better realized in 

the non-segregated school (R. 159-161). It was his opinion 
that segregation renders the Negro school .unequal to the



19

white school in orm-ttlmt. (It. 103-164), ^ ,ca^
in,,- (It. 166-107), development ol democratic attitudes It. 
161- 611) nniloconomie competence (It. 161-16.,). He pointed 

h„ the learning process itself is subject to emotional 
conditions and moral s.inmlation (II 1 « ) ,  t m » 
neous grouping limits curricula and nh ijc 
tor’s opportunity to teach functionally (It. 1 6 1 -168 ).
concluded;

“ Overriding as this may sound, I " °'f^V-i'h'Tmt 
that in the last analysis there is not a p .«d  sh II, ml 
a .rood attitude—and this is important—not a Mt c 
understanding that can he taught equally well m 
two systems. Bad skills, and some bat m .sm .d.- 
standings, and bad competencies can be tau0
(R. 168).

Dr Brooks felt that the student is harmed when an educa­
tional goal is not achieved because by “ constant frustra­
tion in attempting to reach that goal either he 
the learning process of attempting to reach it 1,c°°™e 
bad learning process rather than the good ones that had
been planted’ ’ (R. 162).

Dr. Smith, after pointing out that modern social 
scientists have discovered that race is not a factor lelcvan 
to educability (R. 180-182, 183), testified that legal segrega­
tion impairs the personality, intellectual and educational 
development of the Negro (R. 183-183) Segregation he 
said perpetuates the prejudice inherent therein (R. 184- 
185) He emphasized the importance of the school in t u 
child’s experience (R. 186); expressed the opimoiil tha 
segregation impairs the learning processes ot the Neg o 
child (R. 186) and prevents him from obtaining educational 
opportunities and advantages equal to those available 
white children (R. 187, 195-196), saying rn part that.

* * * segregation is, in itself, undei the uncial 
circumstances in which it occurs, a social and official 
insult and that this has widely ramifying const-



20

quences on the individual’s motivation to learn and 
benefit from his education and other developments 
of his personality and capacity to he effective in any 
realm of life. This, I think, is t he overwhelming 
point which makes it impossible for me to see how 
one could have equal educational opportunity under 
;uiy kind of segregating system”  (K. 187).

Dr. Chein, who with Dr. .Max Deutscher had made a 
comprehensive study of the views of social scientists 
on the effects of enforced racial segregation outlined the 
results of the survey. A total of 84!) social scientists were 
sent questionnaires and 517 responded. On the basis of 
this survey and his overall experience, Dr. Chein said of 
the impact of segregation on the individual that:

“ The conclusions are that there are feelings of 
inferiority and insecurity which develop in the mem­
bers of the segregated groups, which are a func­
tion of the fact of segregation rather than of any 
facilities which they experience; that they are prone 
to develop strong feelings of self-doubt; that they 
are prone to develop mixed attitudes toward them­
selves, including feelings of self-hatred, as well as 
the opposite feelings. They are, in the technical 
lingo, referred to as ambivalents; but they are 
likely to develop feelings of being isolated and alone 
and not belonging anywhere, including, in many 
cases, not even in their own group; that they develop 
attitudes of cynicism; that there are reflections o f 
these reactions in a loss of initiative and efficiency; 
that there is a diminished sense of personal respons­
ibility, or, in some cases, they develop what is 
referred to in the technical lingo as ideas of persecu­
tion, that is, they become extraordinarily sensitive 
to even more than would be objectively justified ter 
attribute to others the desire to persecute them; that 
in many instances they develop, or in relation to 
this, and partly a function of this, anti-social be-

10 Deutscher & Chein, The Psychological Effects of Enforced 
Segregation: A  Surrey of Social Science Opinion, 26 J. Psychol. 
259 (1948).

<



liavior; and in what perhaps is another way of looking 
■at what Professor Smith and Dr. Brooks have testi- 
lied to this morning, what I would describe as dis­
turbances in the sense of reality”  (R. 208).

He also stated that segregation adversely affects the educa­
tional content of the segregated child (K. 209-210) and 
precludes equality of educational opportunity in tin* segre­
gated school ( R. 211-213, 240).

Dr. English testified that the child’s conception of his 
own value and worth is of the highest importance, and 
that when constantly subjected to the notion that he is 
inferior his sense of personal worth suffers severe damage 
(R. 580).

Dr. Kenneth Clark described psychological tests and 
methods which are used to measure the effects of segrega­
tion upon personality growth and development (R. 247- 
2.)0. 272-273) and detailed the damage resulting from 
segregation which these tests had demonstrated (R. 250- 
253). TTe stated that segregation robs the individual of a 
sense of self-esteem and produces a variety of adverse 
phychological reactions (R. 253-254). He testified that 
educational segregation impairs the learning process of 
the segregated child (R. 253) and stated:

‘ ‘ 1 think, when you see these specific areas in 
which people react to fundamental damage to their 
self-esteem, you can then see how any situation 
which constantly reminds the person of his racial 
inferiority would be a situation in which he could 
not generally profit.

“ Segregated schools is such a situation. It is 
a situation which is constantly burning into that 
person’s mind the fact that he is supposed to he 
inferior. He has to waste time and energy and, 
whether he wants to or not. he naturally must expend 
time fighting against being told that he is inferior. 
The very preoccupation with race takes away time



22

that could be move constructively used in the pursuit 
of the educational process,

“ It is for that reason that I would answer your 
question that a segregated school, or a segregated 
situation, interferes with the full development of 
a person”  (R. 254),

He discussed a test which he conducted on fourteen of the 
infant appellants (R. 254-261, 273-284, 2!)1) and was of the. 
opinion that segregation in the schools of Prince Edward 
County prevented Negro children from obtaining educa­
tional opportunities and advantages equal to those of white, 
children (R. 262-264, 287-290).

Appellants’ evidence thus demonstrated that Virginia’s 
school segregation laws deny appellants educational benefits 
and opportunities available to the rest of the community. 
It also demonstrated the injurious impact of such laws 
upon the segregated child. These are not the private, 
notions of a few individuals of good will hut the consensus 
of social scientists who have studied the problem (see 
Appendix); nor can this evidence he dismissed as legist 
lative argument. This evidence relates to those factors 
which this Court has held to he determinative of the validity 
of racial distinctions in public education in Siceatf v. 
Painter, 339 1'. S. 629; and in McLaarin v. Oklahoma State 
Regents, 339 U. S. 637.

Appellees presented the testimony of four educators; 
Dr. Colgate W. Darden, Jr., President of the UniversityJ>f 
Virginia and former Governor of Virginia (R. 451-462); 
Dr. Dabney S. Lancaster, President of Longwood College 
(R. 463-485); Dr. Dowell J. Howard, State Superintendent 
of Public Instruction (R. 438-451); and Dr. Lindlev Stiles, 
Dean of the Department of Education of the University of 
Virginia (R. 486-514). They also presented three experts 
in psychology and psychiatry: Dr. William H. Kelly, a
child psychiatrist and Director of the Memorial Foundation



23

and Memorial Guidance Clinic, in Richmond,'Virginia (R. 
514-530); John Nelson Buck, a retired clinical psychologist 
(R. 530-544); and Dr. Henry E. Garrett, Professor of Psy­
chology at Columbia University (R. 545-572).

Dr. Kelly (R. 529), Mr. Buck (R. 538, 541, 543) and Dr. 
Garrett (R. 569, 571-572) admitted that racial segregation 
has harmful effects on Negro children. Dr. Stiles testilied 
that he did not accept segregation as a social practice (R. 
497-507), and suggested that the problem would be solved 
by a gra/lual process of education (R. 498-504). Dr. Darden 
admitted the possibility of personality damage resulting 
from segregation (R. 458).

Thus, four of appellees’ witnesses admitted that segre­
gation produced harmful effects, and a fifth witness recog­
nized that segregation could be injurious. While three of 
these witnesses questioned the value of the Deutscher and 
Chein study and Dr. Clark’s interviews of Prince Edward 
County children (R. 519-522, 527-529, 538-539, 548, 553-555, 
561, 563-564), they conceded that racial segregation inflicts 
injury upon Negro school children. Appellants’ demon­
stration of the harmful consequences of segregation upon 
the segregated group was thus substantiated by appellees’ 
own witnesses, and the District Court’s conclusion that 
appellants evidence does not overbalance appellees’ is 
manifestly erroneous and cannot stand. United States v. 
United States Gypsum Co., 333 U. S. 364; Baumpartner v. 
United States, 322 U. S. 665; United States v. Appalachian 
Electric Power Co., 311 U. S. 377.

The remainder of appellee’s evidence did not deal with 
the basic issue before the Court: whether Virginia’s school 
segregation laws deny appellants their constitutional 
rights to equal educational benefits.

Some of their witnesses expressed the opinion that de­
segregation is more difficult at the lower educational levels 
(R. 448, 457, 468, 493, 518-519, 522-523, 535, 564-565). Public



24

secondary education is no less a governmental function 
than graduate and professional education in state insti­
tutions. Just as Sweatt and McLaurin were denied certain 
benefits characteristic of graduate and professional edu­
cation, it is apparent from this record that appellants are 
denied educational benefits which are available to white 
children. Thus, as Sweatt and .McLaurin^appellants are 
denied equal educational opportunities in violation of the 
Fourteentli Amendment.

Appellees’ witnesses also predicted the effects of imme­
diate desegregation by court injunction: The people of
\ irginia are not ready for the change (R. 444). They would 
ignore a desegregation injunction (R. 444, 500, 508-510, 
522). Those who could afford to do so would send their 
children to private schools (R. 444, 455, 471, 536). Finan­
cial support for the public schools would diminish (R. 312, 
322-323, 3f)0, 444, 452-453, 455-460, 536-537), and racial rela­
tions would be impaired (R. 312, 390-391, 471, 542). Fric­
tions and tensions would develop (R. 468, 479, 522-523, 526- 
527) although there would be no violence (R. 452, 455). 
Employment of Negro teachers would be adversely affected 
(R. 450-451, 457, 470-471, 481, 493-496, 511-512, 537), al­
though such teachers are academically better qualified than 
white teachers (R. 450, 457), and notwithstanding a na­
tional shortage of white teachers (R. 451) and a shortage 
of elementary teachers in Virginia (R. 451). Subtle forms 
of segregation would displace statutory separation so that 
Negro children would not be benefitted by the change but 
would be better off in a segregated school (R. 489-491. 500- 
503, 523-524, 537-538).



25

These witnesses emphasized that tlieir conviction that 
Virginians are unprepared for desegregation in the public 
schools formulated the basis for these conclusions (R. 444, 
451-453, 455, 457, 470-471, 475-477, 470, 489-491, 40(5, 499- 
504, 523-524, 536-538, 542), and they were particularly con­
cerned that school segregation not be stricken down by 
judicial decree (R. 443, 452, 455, 470, 471, 497, 500, 523, 
536-538, 541). They agreed, not that segregation was non- 
injurious, but that desegregation must be a gradual process: 
Dr. Stiles (R. 498-504), Dr. Kelly (R. 525), Mr. Buck (R. 
540-542), Dr. Garrett (R. 568-569).

This line of testimony is immaterial. The crux of this 
ease is the impact of a state policy of segregation upon the 
individual in his pursuit of learning. Appellants say that 
the effect is discriminatory and injurious because it is the 
State that imposes it—and the evidence sustains their posi­
tion. Appellees say the removal of the State’s hand will 
not Ixmefit the Negro student because discrimination im­
posed by individuals will continue.

Appellees, however, fail to distinguish between consti­
tutionally permissible individual activity and constitution­
ally proscribed governmental action. As this Court said 
in the McLaurin case (pp. 641-642):

“ It may 1m? argued that appellants will be in no 
better position when these restrictions a re removed, 
for lie may still be set apart by bis fellow students. 
This we think irrelevant. There is a vast difference— 
a Constitutional difference, between restrictions im­
posed by the state which prohibit ihe intellectiuYI 
commingling of students, and the refusal of indi­
viduals to commingle where ihe state presents no 
such bar. Shelley v. Kraemer, 334 U. S. 1, 13-14 
(1948). The removal of the state restrictions will 
not necessarily abate individual and group predilec­
tions, prejudices and choices. But at the very least, 
the state1 will not be depriving appellant of the 
opportunity to secure acceptance by his fellow stu­
dents on bis own merits.”