School District No. 20, Charleston, South Carolina v. Brown Brief of Interveners-Appellants

    B R IE F  OF INTERVENERS-APPELLANTS

United States Court of Appeals
FOURTH CIRCUIT 

No. 9216

SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, a 
public body corporate, and CHARLES A. BROWN, Chairman of 
SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, 
and THOMAS A. CARRERE, Superintendent, LAWRENCE O’HEAR 
STONEY, LEONARD A. MACKEY, JOHN T. WELCH, MRS. EDWIN 
A. PEARLSTINE, MRS. W. ALLAN MOORE, JR., DR. JOHN C. 
HAWK, JR., Members, BOARD OF TRUSTEES OF SCHOOL DIS­
TRICT NO. 20, CHARLESTON, SOUTH CAROLINA,

and
MARK ALLEN, a minor, by W. K. ALLEN, his father and next friend; 

BARBARA L, BELLOWS and GEORGE BELLOWS, JR., minors, by 
their father and next friend GEORGE BELLOWS; JULIA JEANNE 
CANFIELD, a minor, by EUGENE C. CANFIELD, her father and next 
friend; and ELIZABETH S. STACK and WILLIAM F. STACK, JR., 
minors, by WILLIAM F. STACK, SR., their father and next friend, 
Intervenors,

Appellants,
versus

MILLICENT F. BROWN, a minor, by J. ARTHUR BROWN, her father and 
next friend; and OVETA. GLOVER, a minor, by B. J. GLOVER, her 
father and next friend; and VALARIE WRIGHT, a minor, by MAMIE 
WRIGHT, her mother and next friend; and CLARISSE KARAN HINES, 
a minor, by ELIZABETH HINES, her mother and next friend; and 
RALPH STONEY DAWSON, a minor, bv FRED DAWSON, his father 
and next friend, and HENDERSON ALEXANDER, EDDIE ALEX­
ANDER, CASSANDRA ALEXANDER AND GERALD ALEXANDER, 
minors, by MARY ALEXANDER, their mother and next friend; and 
JACQUELINE FORD, BARBARA FORD and GALE FORD, minors, by 
CLARENCE FORD, their father and next friend,

Appellees.

Ap p e a l  f r o m  T h e  D is t r ic t  C o u r t  o f  t h e  U n it e d  S t a t e s  

f o r  t h e  E a s t e r n  D is t r ic t  o f  S o u t h  C a r o l in a  

a t  C h a r l e s t o n

BURNET R. MAYBANK, 
Charleston, S. C.
GEORGE STEPHEN LEONARD, 
Washington, D. C.

Attorneys for Appellants.

W A L K E R .  E V A N S  a  C O G S W E L L  C O . ,  C H A R L E S T O N ,  S O U T H  C A R O L I N A ,  U S . A .



TABLE OF CASES

Bell v. School City o f Gary, Indiana — F. 2d—(C.
A. 7, Oct. 31, 1963) _____________________________25

Bolling v. Sharpe, 347 U. S. 497 (1 9 5 4 )______________24

Briggs v. Elliott, 132 F. Supp. 776 (E . D. S. C. 1955) - .2 5

Brown v. Board o f Education, 347 U. S. 483
(1954) ____________________________________ 4, 12, 26

Brown v. Board o f Education, 349 U. S. 294
(1955) ______________________________________ 30, 31

Calhoun  v. Board o f Education o f Atlanta, 188 F.
Supp. 401 (N. D. Ga. 1959) _____________________.28

Commission v. Henninger, 320 U. S. 467 (1943) ______ 18

Frasier v. Board o f Trustees o f  N. C. Univ., 134 F.
Supp. 589 (M. D. N. C. 1955) Affirmed per 
curiam 350 U. S. 979 (1956) _____________________ 28

Grovey v. Townsend, 295 U. S. 45 (1935) __________ 17

H ale v. Finch, 104 U. S. 261 (1881) _________________ 34

Hansberry et al v. L ee, 311 U. S. 32 (1940) __________ 34

Hart Steel v. Railroad Supply Co., 244 U. S. 294 
(1917) _________________________  34

Helvering v. National Outdoor Advertising Bureau,
Inc., 89 F. 2d 878 (C. A. 2, 1937) _______________18

Hernandez v. Texas, 347 U. S. 475 (1954) __________ 23

Kean  v. Hurley, 179 F. 2d 888 (C. A. 8, 1950) ______34

Kessler v. Eldred, 206 U. S. 285 (1907) ____________ 34

Lindsley  v. Natural Carbonic Gas Co., 220 U. S. 61 
(1911) __________________________________________ 21

P a g e



M cGowan  v. Maryland, 366 U. S. 420 (1961) ----------- 22

Mahnich v. Southern S. S. Co., 321 U. S. 96 (1944 )------ 18

Morey v. Doud, 354 U. S. 457 ______________________ 21

NAACP v. Button, 371 U. S. 415 (1963) _____________ 4

Orleans Parish School Board  v. Bush, 242 F. 2d 
156 (C. A. 5, 1957) _____________________________ 24

Padovani v. Bruchhausen, 293 F. 2d 546 (C. A. 2,
1961) ___________________________________________ 29

People  v. Charles Schweinler Press, 214 N. Y. 395,
108 N. E. 639 (1915), appeal dismissed, 242 U. S.
618 (1916) ______________________________________15

People  v. Gallagher, 93 N. Y. 438 (1883) ___________ 33

People  v. W illiams, 189 N. Y. 131, 81 N. E. 778 
(1907) __________________________________________ 14

The Pinas D el Rio, 277 U. S. 151 (1928) ____________19

Pyeatte v. Board o f Regents, 102 F. Supp. 407 (W.
D. Okla., 1951) affirmed without opinion, 342 
U. S. 936 (1952) ___________________________  — 23

Polhemus v. American M edical Ass’n., 145 F. 2d 
357 (C. A. 10, 1944) ____________________________ 28

Smith v. Allwright, 321 U. S. 649 (1944) ___________ 17

Stell v, Savannah-Chatham County Board o f Edu­
cation, 220 F. Supp. 667 (S. D. Ga. 1963) _____ 28,31

Sw eezey  v. State o f N ew Hampshire, 354 U. S.
234 (1957) _________________________________

TABLE OF CASES— Continued

P a g e

17



Taylor v. Board o f Education o f New Rochelle,
191 F. Supp. 181 (S. D. N. Y. 1961), cert, denied,
368 U. S. 940 (1961) ____________________________27

Teamsters Union v. Vogt, Inc., 354 U. S. 284 (1957)____ 16

Thornhill v. Alabama, 310 U. S. 88 (1940) __________ 17

United States v. Carolene Products Co., 304 U. S.
144 (1938) ______________________________________ 20

W augh  v. Board o f Trustees, 237 U. S. 589 (1 9 1 5 )-------23

W ebb  v. State University, 125 F. Supp. 910 (N. D.
N. Y. 1954), appeal dismissed, 348 U. S. 867
(1954) ____________________________  23

W illiamson  v. L ee  Optical o f Oklahoma, Inc., 348 
U. S. 483 (1955) ________________________________ 22

Statutes:

South Carolina Pupil Assignment Law, §§ 21-247 
et seq., S. C. Code of Laws (1962) _______________  2

United States Code, Title 28, § 1291__________________  2

Miscellaneous:

American Jurisprudence, Courts, p. 290 _______________35

Annotation, “Conflict of Laws—Questions for Jury,”
89 ALR 1278 _____________________________________13

21 C.J.S. 305, 386 __________________________________ 35

Douglas, William O., W e The Judges, p. 398
(1955) __________________________________________24

TABLE OF CASES— Continued

P a g e



TABLE OF CASES— Continued

P a g e

Fahr, S. M., & Ojemann, R. H., “The Use of Social 
Behavior Science Knowledge in Law,” 48 Iowa 
L. Rev. 59 (1962) _______________________________ 29

Federal Rules of Civil Procedure, Rule 8 ------------------- 28

Frankfurter, Felix, Note, 28 Harv. L. Rev. 790 
(1915) _______________________________________ 15,31

Myrdal, An American Dilemma, p. 147 --------------------31

New York Times, November 11, 1963 (Statement
of Kenneth B. Clark) ------------------------------------------  8

Rules of Board of Trustees of Charleston (S. C.)
School District No. 20, June 10, 1959 -------------------  2

“Science and the Race Problem,” Science, Novem­
ber 1, 1963, p. 558 _______________________________ 31

Washington Post, October 26, 1963, (article on
“track system” of grouping pupils) ----------------------- 11



B R IE F  OF INTERVENERS-APPELLANTS

United States Court of Appeals
FOURTH CIRCUIT 

No. 9216

SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, a 
public body corporate, and CHARLES A, BROWN, Chairman of 
SCHOOL DISTRICT NO. 20, CHARLESTON, SOUTH CAROLINA, 
and THOMAS A. CARRERE, Superintendent, LAWRENCE O’HEAR 
STONEY, LEONARD A. MACKEY, JOHN T. WELCH, MRS. EDWIN 
A. PEARLSTINE, MRS. W. ALLAN MOORE, JR., DR. JOHN C. 
HAWK, JR., Members, BOARD OF TRUSTEES OF SCHOOL DIS­
TRICT NO. 20, CHARLESTON, SOUTH CAROLINA,

and
MARK ALLEN, a minor, by W. K. ALLEN, his father and next friend; 

BARBARA L. BELLOWS and GEORGE BELLOWS, JR., minors, by 
their father and next friend GEORGE BELLOWS; JULIA JEANNE 
CANFIELD, a minor, by EUGENE C. CANFIELD, her father and next 
friend; and ELIZABETH S. STACK and WILLIAM F. STACK, JR., 
minors, by WILLIAM F. STACK, SR., their father and next friend, 
Intervenors,

Appellants,
versus

MILLICENT F. BROWN, a minor, by J. ARTHUR BROWN, her father and 
next friend; and OVETA GLOVER, a minor, by B. J. GLOVER, her 
father and next friend; and VALARIE WRIGHT, a minor, by MAMIE 
WRIGHT, her mother and next friend; and CLARISSE KARAN HINES, 
a minor, by ELIZABETH HINES, her mother and next friend; and 
RALPH STONEY DAWSON, a minor, by FRED DAWSON, his father 
and next friend, and HENDERSON ALEXANDER, EDDIE ALEX­
ANDER, CASSANDRA ALEXANDER AND GERALD ALEXANDER, 
minors, by MARY ALEXANDER, their mother and next friend; and 
JACQUELINE FORD, BARBARA FORD and GALE FORD, minors, by 
CLARENCE FORD, their father and next friend,

Appellees.

A p p e a l  f r o m  T h e  D is t r ic t  C o u r t  o f  t h e  U n it e d  S t a t e s  

f o r  t h e  E a s t e r n  D is t r ic t  o f  S o u t h  C a r o l in a  

a t  C h a r l e s t o n

OPINION BELOW

The opinion of the District Court in Civil Action No. 7747, 
August 22, 1963, is not officially reported, but may be found 
in the Appendix of Appellants, pp. 276-96.

(1)



2 School D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v .

JURISDICTION

The opinion and order of the District Court was filed Au­
gust 22, 1963. The order of the District Court refusing the 
petition of the defendants to amend the findings and con­
clusions and to vacate or amend the judgment and order was 
filed September 6, 1963. The notice of appeal of the defend- 
ants-appellants and the intervenors-appellants (hereinafter 
called “intervenors”) was filed October 2, 1963. The juris­
diction of this Court is conferred by Title 28, Section 1291, 
of the United States Code.

QUESTION PRESENTED

Is the District Court foreclosed as a matter of law from 
considering uncontradicted proof that there is such an inherent 
variation in learning patterns between the average negro and 
white child in the public schools of Charleston that a reasonable 
classification of such children for educational purposes requires 
separate and different programs and classes to avoid major 
educational loss and psychic injury?

STATUTES AND REGULATIONS INVOLVED

South Carolina Pupil Assignment Law, §§ 21-247 et seq., 
S. C. Code of Laws (1962).

Rules of Board of Trustees of Charleston School District 
No. 20, adopted June 10, 1959.

STATEMENT

The action was tried on August 5 and 6, 1963. Intervenors- 
appellants introduced, without contradiction or rebuttal, the 
testimony of witnesses conceded by plaintiffs-appellees to be 
authorities in their respective fields. These witnesses were 
unanimous to the effect that test differences between white



Millicen t  F . B rown, et  al, Appellees 3

and negro students in mental maturity and educational achieve­
ment in Charleston schools showed inherent educational varia­
tions of such a degree and character that the integration re­
quested by plaintiffs would destroy the quality of instruction 
in the City schools and would cause severe and permanent 
educational and psychological injury to both negro and white 
school children.

The Court refused to consider or make findings on this 
evidence, holding instead:

“The position taken by the defendants and the inter- 
venors in effect, asks this Court (a U. S. District Court) 
to overrule the United States Supreme Court, the Fourth 
Circuit Court of Appeals and all the numerous decisions 
by those courts, reiterating, expanding and amplifying the 
holdings of the United States Supreme Court in Broivn 
v. Board o f Education  (supra). Under the doctrine of 
stare decisis, this Court has no such authority.”

Accordingly, the legal question before this Court is whether 
Brown v. Board o f Education  holds that the Constitution re­
quires not merely non-discrimination by race, but affirmative 
and compulsory congregation regardless of any adverse edu­
cational or psychological result to the children.

TH E ISSUE

This case presents a small but novel and important frag­
ment of the over-all problem of negro-white education in 
America—whether political or educational values govern the 
problem of non-discriminatory schooling.

Under present world tensions, the inadequate education of 
a single generation could cost this country its leadership and 
endanger its constitutional system. If the uncontroverted facts 
presented to the Court below are true—and on this record no



other conclusion can be drawn—the compulsory congregation 
of classes requested by the plaintiffs would seriously diminish, 
and could ultimately destroy, the education of thousands of 
Charleston children, both white and negro. The rule con­
tended for by plaintiffs, if applied generally, could sharply 
diminish the education of all other children similarly situated.

Is the position of the plaintiffs below one taken on behalf 
of these children, or is it merely another phase of that political 
battle of their elders which the Supreme Court described in 
NAACP v. Button, 371 U. S. 415 (1963)? Has the problem 
of education become so interinvolved with political, emotional 
and ideological assertion, that the law is powerless to consider 
any consequential injury to the children whose education is 
at stake?

It is the position of intervenors-appellants that the educa­
tional benefit and psychological health of these specific negro 
and white children must be the principal issue in this or any 
school case and that any statute or regulation based upon 
such facts, rather than upon race or color as such, falls within 
the ambit of permissible state action under its power to rea­
sonably classify citizens under the Fourteenth Amendment 
for health, education  or welfare reasons.

Brown v. Board o f Education, 347 U. S. 483 (1954), as we 
later show in detail, is not in conflict with our statement that 
optimum education for both white and negro children is the 
basic issue in the present case. There the Court—acting on a 
specific factual showing and “Brandeis Brief”—held that the 
negro children, in the four areas considered, were injured by 
the mere existence of segregated schools.

Here, the record shows a wide and educationally invariable 
divergence between the learning ability of white and negro 
students in Charleston. It shows that a single curriculum, or a

4 School D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v .



Millicen t  F. B rown, e t  al, Appellees 5

single class and common educational standards pedagogically 
unfitted to their differing capacities and talents, would cause 
irreparable harm to both races. The record shows that the 
true injury would be greater by integration here than was 
found by the Supreme Court to exist from segregated schools 
in Kansas and Delaware in the first Brown case.

We reiterate that whether or not these children will in fact 
be injured by compulsory congregation in Charleston is and 
must be the issue before the trial court and the relevance of 
such evidence is the sole issue before this Court.

FACTS

T he Charleston P ublic S chool System

The population of School District No. 20 is 65,925; 32,313 
white, 33,612 negro. There are 12,647 public school students 
in the District, 9,539 negro, 3,108 white. [93* ] The school 
system operates six schools for white children and nine schools 
for negro children, the facilities of which are substantially 
equivalent. [76-83, 94-8, 136-9, 144-5]

The teaching programs, through a choice of elective subjects 
and teacher adaptation of state and national progress norms, 
are varied to meet the different educational aptitudes of white 
or negro students in each individual school. [90-1, 95-6, 122-4, 
126-9]

Com parative Educational A ptitudes: Charleston

The educational aptitudes of students in the Charleston, 
South Carolina, school system have been measured over a 
period of ten years by educationally standardized psychometric 
intelligence and subject achievement tests. These show wide 
divergencies between the average and median proficiency of

'AH references are to pages in Appendix of Appellants.



School D ist . No. 20 & M ark Allen , et  al, Appellan ts, v .

white and negro students, respectively. [100-22, 151-8, 162, 
166-7, 198-9] Specifically:

(1 ) The median I.Q. of all negro students averages 15-20 
points below the median for all white students. While both 
groups have a normal distribution of high and low individuals 
around this median figure, the difference in average is such 
that the negro overlap of the median white child is only 10% 
to 20%. This compares to an overlap of 50% which would be 
shown by groups of similar learning capacity. [20-1, 152-8, 
166-7]

(2 ) This difference does not remain constant in the indi­
viduals of the two races. It increases at a relatively constant 
rate of one year in four, such that the grade achievement levels 
of negro children which only lag behind those of white stu­
dents by an average of a half to one year in the primary 
grades will increase to three years plus by the end of the 
secondary grades. This rate is independent of the intelligence 
quotients (mental maturity) of the children so that negro- 
white students matched for intelligence do not thereafter re­
main at the same level but separate thereafter at the rate 
indicated. [104-19, 150-2]

(3 ) The basic educability difference between the two 
groups exists not only as to mental age and learning rate but 
varies by type of subject, e.g., the greatest difference being 
found in mathematical abstraction, the least in areas of memo­
rization. [151, 162, 198-9]

C om parative Educational A ptitudes: O ther Parts o f  United
States and Canada

The learning pattern differences shown to exist in Charles­
ton students are substantially identical to all known tests of 
negro and white students whether tested in the separated



Millic en t  F . B rown, et  al, Appellees 7

schools of the South or the inter-mixed schools in the North 
and West. [133-4, 164-70, 203-4, 218-21]

Not only were these differences standard in all tested areas 
but various studies were made which showed they were in­
herent, not caused by the home or school environment of the 
students. Such studies tested negro and white groups where 
social and environmental factors had been matched and where 
change of condition was shown to be unable to change the 
results. Only an educationally negligible proportion of these 
differences between the two ethnic groups was shown to be 
a possible result of educational or socio-economic factors. 
[133-4, 160-1, 164-70, 191-2, 198-9]

Physiological D ifferences

These differences in the educability of negro and white 
students are functionally related to natural physiological dif­
ferences between the two races arising from their different 
origins.

The variations in intellectual abilities are thus innate, re­
lated both quantitatively and qualitatively not to color or race 
but to certain common physical variances in the relative size, 
proportion and structure of the brain and neural system. These, 
within scientific limitations, permit the prediction of differences 
in personality and learning capacity directly proportioned to 
the tested differences. [176-92, 198-201]

Psychological Problem s

Modern psychological doctrine shows that a failure to main­
tain the existing standards of a white or mixed class creates 
a serious psychic problem of frustration on the part of the 
negro child and forces him to compensate by attention-creating 
anti-social behavior. In New York, 37% of all negro truants



stated that they had run away from home because of inability 
to keep up in school. [163-4, 167-8, 171-4, 222-4, 237-9]

The result has been that in all cities where there is a large 
negro school population in mixed classes, this situation has 
caused serious disciplinary problems and has thereby deprived 
both negro and white children of an effective education. The 
chief psychologist of the organization supporting the plaintiffs 
in this case described negro graduates of the highly rated New 
York high schools as “functional illiterates” unable to read or 
write effectively after twelve years of school. Moreover, he 
stated: (New York Times, November 11, 1963).

“The retardation is cumulative. [This is the divergent 
rate measured in the Charleston studies.] As the children 
become more retarded, they become more and more dis­
affected from school—they become restless, often un­
manageable over discipline problems or withdrawn, seek­
ing escape with lowered motivation, and desire to leave 
school at the earliest opportunity.”

Counsel for the same organization shows that 20 times as 
high a percentage of negro students attain minimum College 
Entrance Examination standards under conditions of separate 
schools in the South as they do from intermixed schools in the 
North. [146-7, 219-22, 235-6]

An additional factor which directly affects the education 
of both ethnic groups is that which results from the inter­
mixture of recognizably different groups in a single class. The 
principles of that branch of psychology known as social 
dynamics have shown that all individuals identify themselves 
with specific groups such as trades, nationalities, sex, religion, 
age and race. Such identifications are made at the unconscious 
level in infancy and are essential to normal personality de­
velopment. The strongest of all such identifications are visible

8 School D ist . No. 20 & Mabk Allen , e t  al, Appellan ts, v.



Millic en t  F . B rown, e t  al, Appellees 9

physical and psychological differences. Identification on the 
basis of visible differences will occur whether or not the indi­
vidual wishes it and is a form of unavoidable self-identifica­
tion. This reaction to physically specific differences between 
people is a universal human characteristic and compels group 
identification along racial lines and racial association prefer­
ences to be formed in early pre-school years for both negro 
and white children. In fact, the tests referred to by the Su­
preme Court in the original Brown case were, in effect, tests 
of such group identification, and the psychological injury on 
w hich that Court acted  was not the acquiring o f this racial 
identification but the loss o f it. [209-15, 224-32]

Contrary to common belief, group preference is strength­
ened by group contacts. Where two substantial groups of 
students having obvious visible group characteristics are mixed 
in a single classroom, the reaction is to increase or exacerbate, 
in increasing proportion to the degree of contact involved, any 
existing racial preferences or hostilities. The attendant con­
flict which this situation causes diminishes available classroom 
time and attention and defeats pro tanto the educational op­
portunity of the children of both groups. It is the unconsidered 
factor which in large part has led to the severe impairment 
of the standing of school systems where group integration is 
in effect. [215-8, 235-6]

Selective Transfers

Apart from the mass congregation of unlike pupils which 
plaintiffs demand, a further consideration is whether transfers 
should be made of negro students in the top 20% of their group 
who could meet the progress norms of an equivalent white 
class. Concededly, selective transfers of such students would 
not injure white students in any sense comparable to the ef­
fects of total group integration. However, it was shown that



this would be an even greater source of psychological harm 
to the negro children selected and to the group not capable 
of meeting such transfer standards. [222-4]

On the basis of the tests, a negro student easily able to 
excel in a white class at the start of a school year would be 
forced to press to keep up by its end and be overpressed in 
increasing degree thereafter. Also, the difference in learning 
patterns invalidates a prediction as to the educational success 
of the individual in a class which stresses reading comprehen­
sion or mathematical calculation. [104-19, 150-2, 162, 198-9]

A negro student so transferred would lose his sense of out­
standing achievement within the group with which he identi­
fies himself, would be inescapably conscious of the social 
preferences of the new group and, if he tries to transfer his 
identity to the white class, could readily cause himself severe 
psychological injury. [221-4]

The adverse effects on the non-transferred negro children 
would be even more injurious. The loss of their group leaders 
would substantially increase any existing presumption of racial 
inferiority. Self-viewed as a rejected group, the competitive 
drive of those not transferred is hurt, drop-outs become com­
mon and they fail to secure the education which they could 
undertake. [222-3]

Educational and Psychological Advantages o f  D ivided School 
Systems

There is no modern psychological evidence of mental or 
educational injury resulting to negro students by education 
in separate schools. To the contrary, every known experimental 
authority has shown greater personality stability and a higher 
degree of learning accomplishment in the divided school sys­
tem. This is even true as to the author of the principal study

10 School D ist . No. 20 & Mask Allen , e t  al, Appellan ts, v .



Millic en t  F . Bhown, e t  al, Appellees 11

relied on by the Supreme Court in Brown  v. Board o f Educa­
tion, Although not brought to that Court’s attention, the same 
authority demonstrated in an earlier study of a far larger 
number of children, that the psychological injury traceable 
to loss of racial identification was more common in integrated 
schools in the North than in segregated schools in the South. 
No other reference listed by the Supreme Court suggests any 
experimental evidence that compulsory congregation would 
benefit negro children. [164, 220-2, 226-32]

Sum m ary

The respective educational capacities of negro and white 
children vary to such a degree that it is not pedagogieally or 
psychologically feasible to teach both groups in the same 
class, with the same subjects, texts and achievement norms. 
In addition to class disciplinary problems illustrated by Wash­
ington experience, any such mixture would either lower the 
prevailing white progress norm to the point of leaving the 
white children uneducated; or, if the national grade norms 
used for the white students were to be continued, a majority 
of the negroes would fail. Any middle of the road level would 
educate neither group.9 “Equal” education is thus a denial 
of “equal educational opportunity.”

SUMMARY OF ARGUMENT

1. Questions of fact are matters as to which reasonable 
men can differ. The development of new scientific data re­
quires reconsideration of conclusions drawn from earlier evi­
dence.

2. Evolutionary constitutional interpretation is often based 
on social and other scientific proof and when so based is al-

*cf. attack on the modem track system of grouping faster and slower students 
together as a form of “resegregation” in integrated Northern schools. (Wash­
ington Post, October 26, 1963)



ways open to a demonstration of later knowledge or prior 
omission of pertinent principle.

3. Under the equal protection clause, States are permitted 
to make reasonable classifications of their citizens for health, 
education or welfare purposes where the basis of division is 
relevant to the end to be accomplished. In such classifica­
tions, it is the group characteristic that must be considered 
and the fact that the underlying justification may not apply 
to exceptional individuals does not delimit the practical neces­
sity for classifications.

4. A true difference in learning ability is a meaningful basis 
for reasonable classification of the groups concerned. Race 
or color in such a case is merely a “convenient index” identi­
fying such group and is not itself the basis of or reason for 
the selection used.

5. Brown v. Board o f Education o f T opeka  does not hold 
to the contrary. Actually it supports the criteria here used.

6. Neither stare decisis nor resjudicata apply to these facts.

ARGUMENT

It is the position of intervenors that the Supreme Court’s 
holding in Brown v. Board o f Education , 347 U. S. 483 (1954), 
that injury resulted to negro children from separate schooling 
was a holding of fact on the record before it in that case. If 
so, the District Court erred in holding that the Brown  decision 
foreclosed judicial consideration of evidence that congregated 
schooling of negro and white children in Charleston, South 
Carolina, would result in educational and psychological dam­
age to both.

We first consider the broad distinction between fact and 
law. We then inquire into the nature of facts underlying rea­

12 School D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v .



sonable classifications under the equal protection clause of 
the Fourteenth Amendment. We then will review the first 
Brown case to show that the conclusion that separate schools 
are “inherently unequal” is derived from a finding of injury 
to negro children while the actual fact is to the contrary. Hence, 
the continued operation of a dual school system in Charles­
ton, South Carolina, constitutes a reasonable and constitu­
tionally permissible classification.

L

FACTS vs. LAW

The discovery of a clear-cut criterion distinguishing between 
fact and law presents a difficult problem. One situation in 
which the distinction must be made is in determining what 
are matters of fact which should be submitted to a jury and 
what are matters of law which must be decided by the court.

The rule which has been distilled from this practice, and 
which is completely applicable here is to be found in Annota­
tion, “Conflict of Laws—Questions For Jury,” 89 ALR 1278, 
where it is stated:

“When it is said that a certain question is for the jury, 
it is meant that, assuming that there was sufficient evi­
dence to prove its primary facts, or to sustain a verdict 
if rendered, the facts are such that fair-minded people 
may differ as to their legal effect. . . .  On the other hand, 
when it is said that a certain question is for the court, 
it is meant that, assuming that there is sufficient evidence 
to prove its primary facts, the facts are such that fair- 
minded men may not possibly differ as to their legal 
effect, and that therefore the court itself, without the 
intervention of a jury, must apply a predetermined rule 
as to the legal effect of such facts.”

Millic en t  F . Brown, et  al, Appellees  13



Reasonable men do not differ on the question of whether 
negro and white persons in America are constitutionally en­
titled to equality of political rights, to equality of employment 
opportunities, or to equality of educational development. But 
reasonable men do and must differ as to whether in any given 
situation the applicability of such a general principle is being 
evenhandedly applied or not and whether the action of a 
state upon given facts is a reasonable classification or an un­
constitutional discrimination.

The classification of persons with reference to “race” is a 
specific example of a situation requiring the application of 
evidentiary facts, rather than the mechanical invocation of a 
predetermined rule of law. “Race” is today considered a bad 
word. Yet it is actually only a coined word. As the anthro­
pologists point out, each man is free to define “race” for him­
self. The only obligation is that he take recognizable human 
characteristics as a basis for his definitions.

Under some definitions, there are as few as three races, under 
others as many as thirty-five or more. Conceivably one could 
define a race of men and a race of women, even though it 
would be necessary to concede considerable overlap in many 
intellectual and physical capacities. It was once held by a high 
court that a division of citizens into male and female for pur­
poses of state economic legislation was unconstitutional in 
denying equal protection of the laws.

The Court of Appeals of the State of New York in People 
v. W illiams, 189 N. Y. 131, 81 N. E. 778 (1907), invalidated 
as unconstitutional a State statute which prohibited night work 
for women in factories during specified hours. The court held 
that on the record before it there was nothing to show that 
an adult woman should not be “entitled to be placed upon 
an equality of rights with the man” (id., 137).

14 School D ist . No . 20 & Mark Allen , et  al, Appellan ts, v .



Millic en t  F . B rown, et  al, Appellees 15

This did not solve the underlying problem, which was in 
fact based upon the physiological differences between the sexes 
and the resultant necessity for difference of treatment in grant­
ing them equal employment opportunity. Accordingly, eight 
years later, when an attack was made upon a similar successor 
statute, the defense proved for the first time the scientific 
basis for the difference between men and women which re­
quired that different standards be applied. In this case, the 
Court of Appeals in People  v. Charles Schweinler Press, 214 
N. Y. 395, 108 N. E. 639 (1915), appeal dismissed, 242 U. S. 
618 (1916), held that its former decision in W illiams was 
necessarily limited to the facts of that record, and that the 
failure to show the relevant differences between the two groups 
was the cause of the earlier decision.

In upholding the statute, the Court of Appeals specifically 
considered the problem offered by the exceptional case. It was 
“not a basis for a constitutional objection” to a statute like this 
“that in exceptional cases it may prevent employment of some 
women for a short time between those hours under such con­
ditions as would be productive of no substantial harm” (214 
N. Y. 395, 407).

Distinguishing the W illiams case, the court said (id., 410-1):

“But the facts on which the former statute might rest 
as a health regulation and the arguments made to us in 
behalf of its constitutionality were far different than those 
in the present case. . . . While theoretically we may have 
been able to take judicial notice of some of the facts, . . . 
actually very few of these facts were called to our atten­
tion.”

The Schweinler case was commented upon in a Note, 28 
Harv. L. Rev. 790 (1915), written by Felix Frankfurther, in 
which he stated (791):



16 S chool D is t . No . 2 0  & M a rk  Al l e n , e t  a l , Ap p e l l a n t s , c .

“First: Questions as to the constitutionality of modern
social legislation are substantially questions o f fact. The 
formulae of the Bill of Rights do not furnish yardsticks 
by which the validity of specific statutes can be measured. 
Concepts like ‘liberty’ and ‘due process’ are too vague in 
themselves to solve issues. They derive meaning only if 
referred to adequate human facts. The legal principles 
cannot be employed in vacuo. . . . Deference to this 
data [on the relevant male-female differences by the 
Factory Investigating Committee] was the very founda­
tion of the court’s decision on the legal question.

“Secondly, and closely following as a corollary, inas­
much as facts are dynamic, constitutional decisions upon 
which they must be based cannot be static. Conditions 
change, legislation deals with these changed conditions, 
and so must the courts. A book like Miss Goldmark’s 
‘Fatigue and Efficiency’ com pletely undermines prevalent 
assumptions as to facts and, thereby, may well destroy 
the very groundwork of prior judicial decisions. There­
fore, the doctrine o f stare decisis has no legitim ate ap­
plication to constitutional decisions w here the court is 
presented with a new body o f knowledge, largely non­
existing at the time o f its prior decision. This was pre­
cisely the situation in the Schweinler case. The seven 
years that elapsed between it and the Williams case de­
veloped an overwhelming mass of authoritative data, and 
it is by the light of such new knowledge that the justifica­
tion of legislative action must be determined.” ( Emphasis 
added)

At a later date, Mr. Justice Frankfurther referred to his 
earlier article and approved the principle of the Schweinler 
case in Teamsters Union v. Vogt, Inc., 354 U. S. 284 (1957), 
affirming an injunction against peaceful picketing, contrary



Millic en t  F . B rown, et  al, Appellees 17

to the Court’s prior decision in Thornhill v. Alabama, 310 U. S. 
88 (1940); saying (354 U. S. 284, 289):

“Soon, however, the Court came to realize that the 
broad pronouncements, but not the specific holding, of 
Thornhill had to yield ‘to the impact of facts unforeseen,’ 
or at least not sufficiently appreciated.”

Similar recognition of the principle that new scientific data 
should change earlier conclusions, is shown in Sweezey v. 
State o f New Hampshire, 354 U. S. 234 (1957), in which the 
Supreme Court departed from earlier ruling to reverse a “sub­
versive activities” conviction. The concurring opinion stated 
(id., 261-2):

“Progress in the natural sciences is not remotely con­
fined to findings made in the laboratory. Insights into 
the mysteries of nature are born of hypothesis and specula­
tion. The more so is this true of the pursuit of under­
standing in the groping endeavors of what are called the 
social sciences, the concern of which is man and society. 
The problems that are the respective preoccupations of 
anthropology, economics, law, psychology, sociology and 
related areas of scholarship are merely departmentalized 
dealing, by way of manageable division of analysis, with 
interpenetrating aspects of holistic perplexities. For so­
ciety’s good—if understanding be an essential need of so­
ciety-inquiries into these problems, speculations about 
them, stimulation in others of reflection upon them, must 
be left as unfettered as possible.”

As a further example of change based on revised or fuller 
evidence, let us take the case where the Supreme Court ruled 
that the right to vote in a Texas primary was not a right guar­
anteed by the Constitution, Grovey v. Townsend, 295 U. S. 
45 (1935). Then, nine years later in Smith v. Allwright, 321



U. S. 649 (1944), on being shown the meaning of a primary 
election in a southern state such as Louisiana, the Court re­
versed itself, saying of its earlier decision that it had “looked 
upon the denial of a vote in a primary as a mere refusal by a 
party of party membership.”

The Second Circuit Court of Appeals, in Helvering v. Na­
tional Outdoor Advertising Bureau, Inc., 89 F. 2d 878 (C. A. 
2, 1937), denied as a business deduction for tax purposes the 
legal fees involved in negotiation resulting in a consent decree 
in an antitrust suit. Thereafter the Board of Tax Appeals, 
based solely upon the Second Circuit’s ruling, denied a deduc­
tion for lawyers’ fees incurred in the contesting of a fraud 
order of the Postmaster General. In Commissioner v. Hein- 
inger, 320 U. S. 467 (1943), the Supreme Court reversed and 
remanded to the Board of Tax Appeals holding that the Board 
“was not required to regard the administrative finding of guilt 
. . .  as a rigid criterion of the deductibility of respondent’s 
litigation expenses” (id., 475).

In remanding the case to the Board, the Supreme Court 
significantly concluded (ibid):

“Whether an expenditure is directly related to a busi­
ness and whether it is ordinary and necessary are doubt­
less pure questions of fact in most instances . . . How­
ever, as we have pointed out above, the Board of Tax 
Appeals here denied the claimed deduction not by an 
independent exercise of judgment but upon a mistaken 
conviction that denial was required as a matter of law.”

These distinctions between rules of law and their controlling 
determinations of fact are aptly illustrated by Mahnich v. 
Southern S. S. Co., 321 U. S. 96 (1944), where the Supreme 
Court reversed a holding of the Court of Appeals for the Third 
Circuit that a ship, the “Wichita Falls,” was not unseaworthy

18 S chool D is t . No. 20 & Mark Allen , et  al, Appellan ts, v.



M illicen t  F . B rown, et  al, Appellees 19

by reason of the defective rope used in rigging the staging. The 
Court held that the Court of Appeals had erroneously believed 
itself to be bound by a statement in an earlier Supreme Court 
opinion, The Pinar Del Rio, 277 U. S. 151, 155 (1928), as 
follows:

“The record does not support the suggestion that the 
Pinar Del Rio was unseaworthy. The mate selected a 
bad rope when good ones were available.”

In Mahnich, the Supreme Court remarked that (321 U. S. 
96, 98-9):

“A finding of seaworthiness is usually a finding of fact 
. . . .  Ordinarily we do not, in admiralty, more than in 
other cases, review the concurrent findings of fact of 
two courts below.”

The Court, however, found as a fact that ( id., 103):

“The staging from which petitioner fell was an ap­
pliance appurtenant to the ship. It was unseaworthy in 
the sense that it was inadequate for the purpose for 
which it was ordinarily used, because of the defective 
rope with which it was rigged.”

Explaining why the two courts below were in error in rely­
ing on the quoted statement from The Pinar D el Rio, supra, 
the Court said ( id., 104-5):

“The statement from The Pinar D el Rio, supra, relied 
upon by the two courts below, could be taken to support 
their decision, only on the assumption either that the 
presence of sound rope on the "Wichita Falls’ afforded an 
excuse for the failure to provide a safe staging, or that 
antecedent negligence of the mate in directing the use 
of the defective rope relieved the owner from liability 
for furnishing the appliance thereby rendered unsea­



worthy. But as we have seen, neither assumption is 
tenable in the light of our decisions before and since 
The Pinar D el Rio, supra. So far as this statement sup­
ports these assumptions, it is disapproved.”

The importance of factual inquiry in determining questions 
of consitutionality is illustrated by United States v. Carotene 
Products Co., 304 U. S. 144 (1938). In an opinion upholding 
the validity of a Federal act which prohibited the shipment 
of filled milk in interstate commerce, the Court said (id., 153):

“Where the existence of a rational basis for legislation 
whose constitutionality is attacked depends upon facts 
beyond the sphere of judicial notice, such facts may prop­
erly be made the subject of judicial inquiry . . . , and the 
constitutionality of a statute predicated upon the existence 
of a particular state of facts may be challenged by show­
ing to the court that those facts have ceased to exist.”

The foregoing authorities establish that constitutional de­
terminations based upon particular showings or assumptions 
of fact are always open to reconsideration when a different 
state of facts can be shown in a particular situation. The 
change of circumstance may be either a real difference in the 
factual situation, or a failure to have shown the original facts 
to the court in the first case, or a change or advance in 
scientific doctrine after the first case. Stated more simply, 
changed circumstances may lead to a different conclusion, 
when a general principle is applied to a specific situation.

II.

REASONABLE CLASSIFICATION

The broad principles of reasonable classification have been 
laid down by the Supreme Court over the years and are a 
substantial and fundamental part of our constitutional law.

20 School D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v.



Millic en t  F . B rown, et  al, Appellees 21

In Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 
(1911), the Court held that a State statute prohibiting a land- 
owner from withdrawing an unreasonable amount of mineral 
waters from a common underground supply did not deprive 
the landowner or his property without due process of law. 
The Court also held that the presence in that statute of an 
exemption of pumping from wells not penetrating the rock, 
where the pumping was done for purposes other than col­
lecting and vending carbonic acid gas as a separate com­
modity, did not make the statute “arbitrary in its classifica­
tion” so as to deny the equal protection of the laws to those 
whom it affected (id., 78).

In Morey v. Doud, 354 U. S. 457 (1957), holding that an 
Illinois law regulating currency exchanges denied equal pro­
tection of the laws because the exception of the money orders 
of one company was an unreasonable legislative classification, 
the Court quoted with approval from the Lindsley  case, supra 
(354 U. S. 457, 463-4):

1. The equal protection clause of the Fourteenth 
Amendment does not take from the State the power to 
classify in the adoption of police laws, but admits of the 
exercise of a wide scope of discretion in that regard, and 
avoids what is done only when it is without any reason­
able basis and therefore is purely arbitrary. 2. A classi­
fication having some reasonable basis does not offend 
against that clause merely because it is not made with 
mathematical nicety or because in practice it results in 
some inequality. 3. When the classification in such a 
law is called in question, if any state of facts reasonably 
can be conceived that would sustain it, the existence of 
that state of facts at the time the law was enacted must 
be assumed. 4. One who assails the classification in 
such a law must carry the burden of showing that it does



not rest upon any reasonable basis, but is essentially 
arbitrary.’ Lindsley v. Natural Carbonic Gas Co., 220 
U. S. 61, 78-79, 31 S. Ct. 337, 340, 55 L. Ed. 369.”

W illiamson v. L ee  Optical o f Oklahoma, Inc., 348 U. S. 
483 (1955), upheld, as against the contention that it violated 
the equal protection clause, a State statute subjecting opticians 
to a regulatory system but exempting from regulation all sellers 
of ready-to-wear glasses. That reasonable classifications are 
constitutionally valid is plainly implied by the Court’s state­
ment (id., 489):

“The prohibition of the Equal Protection Clause 
goes no further than the invidious discrimination. We 
cannot say that that point has been reached here. For 
all this record shows, the ready-to-wear branch of this 
business may not loom large in Oklahoma or may present 
problems of regulation distinct from the other branch.”

In McGowan v. Maryland, 366 U. S. 420 (1961), the Court 
upheld as a reasonable discrimination a State Sunday-closing 
law which allowed only certain retailers to sell specified mer­
chandise on Sunday. Dismissing contentions that the statu­
tory classifications were without rational and substantial rela­
tion to the object of the legislation the Court said (id., 425-6):

“The standards under which this proposition is to be 
evaluated have been set forth many times by this Court. 
Although no precise formula has been developed, the 
Court has held that the Fourteenth Amendment permits 
the States a wide scope of discretion in enacting laws 
which affect some groups of citizens differently than 
others. The constitutional safeguard is offended only if 
the classification rests on grounds wholly irrelevant to 
the achievement of the State’s objective. State legisla­
tures are presumed to have acted within their constitu­

22 School D is t . No. 20 & Mark Allen , et  al, Appellan ts, v .



Millic en t  F . B rown, e t  al, Appellees 23

tional power despite the fact that, in practice, their laws 
result in some inequality. A statutory discrimination will 
not be set aside if any state of facts reasonably may be 
conceived to justify it. See Kotch v. Board of River Port 
Pilot Com’rs., 330 U. S. 552, 67 S. Ct. 910 L. Ed. 1093; 
Metropolitan Casualty Ins. Co. of New York v. Brownell, 
294 U. S. 580, 55 S. Ct. 538, 79 L. Ed. 1070; Lindsley v. 
Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 
55 L. Ed. 369; Atchison, T. & S. F. R. Co. v. Matthews, 
174 U. S. 96, 19 S. Ct. 609, 43 L. Ed. 909.”

It is well established that education is primarily a problem 
of the individaul states. Barring unconstitutional discrimina­
tion, the state has the obligation and the correlative authority 
to determine the location of school districts, the level of study, 
the scholastic norm, the textual content, the various pedagogi­
cal theories which will govern the educational progress, wheth­
er education will be compulsory or voluntary, and for what 
period, and the amount of money which will be budgeted for 
it. See for example, Pyeatte v. Board o f Regents, 102 F. Supp. 
407 (W . D. Okla. 1951), affirmed without opinion, 342 U. S. 
936 (1952) (supervision of student housing arrangements); 
W augh  v. Board o f Trustees, 237 U. S. 589 (1915) (prohibi­
tion of Greek letter fraternities); W ebb  v. State University, 
125 F. Supp. 910 (N. D. New York 1954), appeal dismissed, 
348 U. S. 867 (1954) (outlawing fraternities and sororities).

The problem of race and color as bases of classification is 
illustrated by H ernandez v. Texas, 347 U. S. 475 (1954), 
which also shows the necessity of ascertaining facts as a 
prerequisite for the determination of the question of reason­
ableness of classification. Mr. Chief Justice Warren, after 
pointing out that race and color may serve as a convenient 
index for differentiating between groups, said (id., 478):



“Whether such a group exists within a community is a 
question of fact. When the existence of a distinct class 
is demonstrated and it is further shown that the laws, as 
written or as applied, single out that class for different 
treatment not based on some reasonable classification, 
the guarantees of the Constitution have been violated.”

Writing two years after the Brown decision, Mr. Justice 
Douglas recognized the legal importance of the distinction 
between race as such and a racial trait, saying in his book, 
W e the Judges, that “regulations based on race may . . .  be 
justified by reason of the special traits of those races” (p. 398).

Similarly, the Court of Appeals for the Fifth Circuit, noting 
the absence of any relevant criteria for racial separation in 
Orleans Parish School Board v. Bush, 242 F. 2d 156 (C.A. 5, 
1957), specifically called attention to the lack of evidence of 
“any reasonable classification of students according to their 
proficiency or health. . . .”

To the same general effect is the statement of the Court in 
Bolling v. Sharpe, decided the same day as Brown, where the 
Court said, with respect to a classification of children into 
separate schools by race in the District of Columbia (347 
U. S. 497, 499 [1954]):

“Classifications based solely upon race must be scruti­
nized with particular care, since they are contrary to our 
traditions and hence constitutionally suspect.”

Clearly a classification which can be “scrutinized with par­
ticular care” is not a classification which is invalid per se. In- 
tervenors-appellants have no objection to such scrutiny—on the 
contrary, it was the District Court’s refusal to scrutinize from 
which this appeal is taken.

24 School D ist . No. 20 & Mark Allen , et  al, Appellan ts, v .



Millicen t  F . B rown, et  al, Appellees 25

III.

FACTS vs. LAW AND REASONABLE CLASSIFICATION: 
BROWN vs. BOARD OF EDUCATION AND PRESENT

CASE

At the outset, it should be recognized that there is no af­
firmative command that schools be integrated in the decision 
of the Supreme Court in the Brown case. As recently pointed 
out by the Court of Appeals for the Seventh Circuit in Bell v.
School City o f Gary, Indiana,____ F. 2d____  (C. A. 7, Oct.
31, 1963):

“Plaintiffs are unable to point to any court decision 
which has laid down the principle which justifies their 
claim that there is an affirmative duty on the Gary School 
system to recast or realign school districts or areas for 
the purpose of mixing or blending Negroes and whites in 
a particular school.

“Plaintiffs argue that Brown v. Board o f Education  347 
U. S. 483, proclaims that segregated public education is 
incompatible with the requirements of the Fourteenth 
Amendment in a school system maintained pursuant to 
state law. However, the holding in Brown was that the 
forced segregation of children in public schools solely 
on the basis of race, denied the children of the minority 
group the equal protection of the laws granted by the 
Fourteenth Amendment.”

In Briggs v. Elliott, quoted with approval in the Bell case, 
the Court said (132 F. Supp. 776, 777 [E. D. So. Carolina 
1955]):

“The Constitution, in other words, does not require 
integration. It merely forbids discrimination.”



In summary, the holding of the Supreme Court in Brown 
is that an educational classification made solely on the basis 
of race or color is invalid under the equal protection clause 
as there was no evidence of any educational connection and 
“modern psychological knowledge” showed that segregated 
schools were inherently unequal since they created a presump­
tion of inferiority on the part of the negro and thus caused 
him psychological injury.

The Court defined the underlying inquiry thus (347 U. S. 
483, 493):

“We come then to the question presented: 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?” 
(Emphasis added).

Although it would appear sufficiently clear on its face that 
this calls for a conclusion of fact rather than of law, we are 
confirmed when we find that Court looking to the testimonial 
and other evidence in the records before it and to a “Brandeis” 
submission of scientific opinion rather than seeking the answer 
to this question in precedent.

From the Kansas record, the Court read (id., 494):

“ ‘ . . . the policy of separating the races is usually in­
terpreted as denoting the inferiority of the negro group. 
A sense of inferiority affects the motivation of a child 
to learn. Segregation with the sanction of law, there­
fore, has a tendency to [retard] the educational and 
mental development of Negro children and to deprive 
them of some of the benefits they would receive in a 
racial [ly] integrated school system’.”

26 School D ist . No. 20 & Mark Allen , et  al, Appellan ts, v.



Millic en t  F . B rown, et  al, Appellees 27

These are facts, not law. To make these findings the 
Kansas District Judge presumably considered evidence—not 
cases. Whether negroes in Kansas believed that separate 
schooling denoted inferiority, whether a sense of inferiority 
affected their motivation to learn, and whether motivation 
to learn was increased or diminished by segregation, were 
questions requiring evidence for decision. There were as 
much subjects for scientific inquiry as the braking distance 
required to stop a two-ton truck moving at ten miles an hour 
on dry concrete.

When the Court said that the above-quoted finding, in the 
Kansas case, of injury through segregation “is amply sup­
ported by modern authority” (347 U. S. 483, 494, N. 11), was 
the Court making a finding of fact or a ruling of law? On its 
face it seems patently absurd to assume that the Supreme 
Court was trying to fix for all times the content of modern 
psychological knowledge. But it could only be by regarding 
that holding as a ruling of law that the judge below in this 
case could logically conclude that he was foreclosed from 
considering any facts differentiating the present case from 
Brown.

It was only after marshalling facts and considering the 
statements of “modern authority’ ’that the Court came to the 
conclusion that the minor plaintiffs in the Broion case were 
injured by segregation and thereby “deprived of the equal 
protection of the laws guaranteed by the Fourteenth Amend­
ment” (id., 495).

Each of the several courts which have previously con­
sidered this question have concluded that the decision in 
Brown is based on facts contained in the four case records 
before the Supreme Court. Taylor v. Board o f Education of 
New Rochelle, 191 F. Supp. 181 (S. D. N. Y. 1961), cert.



28 S chool D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v .

denied, 368 U. S. 940 (1961); Calhoun v. Board o f Education  
o f Atlanta, 188 F. Supp. 401, 409 (N. D. Ga. 1959); Frasier v. 
Board o f Trustees o f N. C. Univ., 134 F. Supp. 589, 592 
(M . D. N. C. 1955), affirm ed per curiam, 350 U. S. 979 (1956); 
Stell v. Savannah-Chatham Cty. Bd. o f Ed. 220 F. Supp. 667 
(S. D. Ga. 1963). That the factual existence or non-existence 
of injury through segregation is the basis on which plaintiffs’ 
case must be determined is admitted by parapragh 10 of the 
complaint [7] which reads in pertinent part:

“Plaintiffs, and the members of the class which they 
represent, are injured by the refusal of the defendants 
to cease operation of a compulsory biracial school system 
in Charleston County. . . . The plaintiffs, and the members 
of their class, are injured by the policy of assigning 
teachers, principals and other school personnel on the 
basis of the race and color of the children attending a 
particular school and the race and color of the person 
to be assigned.

“The injury which plaintiffs and members of their class 
suffer as a result of the operation of a compulsory biracial 
school system in Charleston County is irreparable and 
shall continue to irreparably injure plaintiffs and their 
class until enjoined by this Court.”

These allegations of “injury” are plainly statements of al­
leged facts, not conclusions of law. In fact, a complaint con­
taining only legal conclusions would fail to satisfy FRCP, Rule 
8, which requires:

“. . . (2 ) a short and plain statement of the claim 
showing that the pleader is entitled to relief.”

A pleader cannot show that he is “entitled to relief” by 
alleging conclusions of law. Polhemus v. American M edical



Millicent* F . B bown , e t  al, Appellees 29

Ass’n., 145 F. 2d 357 (C. A. 10, 1944); Padovani v. Bruch- 
hausen, 293 F. 2d 546 (C. A. 2, 1961).

In the latter case, the Court stated (293 F. 2d 546, 549):

“Yet if there is any characteristic of the federal rules 
(and indeed of code pleading generally) which is well 
settled, it is that a plaintiff pleads facts and not law and 
that the law is to be applied by the court.”

It is not a reason to change the rule that the facts involved 
are of a scientific nature with the social sciences. Fahr, S. M. 
and Ojemann, R. H., in “The Use of Social and Behavioral 
Science Knowledge in Law,” 48 Iowa L. Rev. 59 (1962), state:

“Social and behavioral scientists and lawyers have long 
recognized that the law is concerned with, and is also 
in turn very deeply affecting, concepts of behavior and 
of society which these sciences are in the process of 
investigating. Consequently there have been from time 
to time attempts not only to incorporate the attitudes of 
science in certain areas but, what is more, to adopt the 
findings of scientists. . . .  In fact, since law in the end 
always deals with human beings, there would seem to be 
almost no area in which the influence and the findings of 
the social and behavioral sciences might not be used to 
explain and improve the law in its daily operation upon 
the members of our society.

“Some progress has been made in the acceptance of 
this point of view by lawyers. For example, we are 
used to seeing the trained social service worker or proba­
tion officer in and around the courts. In antitrust actions, 
not only the government but also the corporations under 
attack employ the factual findings and the arguments of 
economics as a major part of their cases. When the



United States Supreme Court reversed a long-standing 
position on segregation of the races, it relied in part upon 
evidence drawn from areas such as education and sociol­
ogy. [Brown v. Board of Educ., 349 U. S. 294 (1955); 
Brown v. Board of Educ., 347 U. S. 483 (1954]. Many 
other examples could be cited to show that in fact there 
has been considerable acceptance of the techniques and 
conclusions of all the areas of inquiry we group under the 
heading of Social and Behavioral Science.”

As to the necessity for evaluating carefully the qualifications 
of scientific witnesses and the validity of their testimony, the 
same article states ( id., 64-5):

“The foregoing examples (many others could be cited) 
represent very familiar situations in which the court 
draws upon social or behavioral science ‘findings’ to help 
it reach a conclusion. It is significant that almost never 
does a court inquire into the social science orientation 
of witnesses in such cases; to most courts a psychologist 
is a psychologist, a doctor is a doctor, a social service 
worker is a social service worker.

“In very few cases is any attempt made to show from 
what sector of the science ‘knowledge spectrum’ the evi­
dence given derives, whether from near the hypotheti­
cal or from the ‘proved’ end, and such evidence is rarely 
attacked in court as representing only one school of any 
given social science body of opinion. Very often lawyers, 
though suspicious of the validity of the testimony they 
hear from social or behavioral scientists, are completely 
unaware of the internecine battles and bitter disagree­
ments currently raging in these areas. This uncritical 
attitude among lawyers is surprising; years ago Wigmore 
warned his profession to watch the findings of science

30 School D ist . No. 20 & Mahk Allen , e t  al, Appellan ts, v .



M illic en t  F . B rown, e t  al, Appellees 31

and not to take action in reliance upon scientific evidence 
till the findings of that science produced results of good 
probability.

It is precisely this failure of lawyers to be properly 
skeptical and scientists to be properly scientific which 
leads to unsatisfactory results in so many cases where 
such evidence is received/’**

Similarly a recent report of a special committee of the 
American Association for the Advancement of Science while 
arguing that the relative educability of white and negro stu­
dents is legally “irrelevant” to the issue of school segregation 
(“Science and the Race Problem,” in Science, November 1, 
1963, p. 558), nevertheless recognizes the factual nature of 
such an inquiry ( id., 558):

“These allegations confront the scientific community 
with an unavoidable challenge, for in our view all scien­
tists bear a responsibility toward the proper social ap­
plication of scientific knowledge and have the duty to 
resist the corrosive effects of social and political pres­
sures on the integrity of science. It is essential, therefore, 
that we determine whether these claims are valid, and, 
whether valid or not, what their significance is to the 
scientific community and to the public.”

That factual issues are necessarily involved in the solution 
of the school problem is similarly indicated in Myrdal, An 
American Dilemma, which was cited with approval by the 
Supreme Court in the Brown case (347 U. S. 483, 495, n. 11),

“Contrast the statement of Dr. Alfred H. Kelly of Wayne State University, 
assistant to plaintiffs’ counsel in B ro w n : “It is not that we were engaged in
formulating lies; there was nothing as crude and naive as that. But we were 
using facts, emphasizing facts, bearing down on facts, sliding off facts, 
quietly ignoring facts, and above all interpreting facts in a way to do what 
[Thurgood] Marshall said we had to do—‘get by those boys down there.’ ” 
Stell v. Savannah-Chatham County Board of Education, supra, at 680.



32 S c h o o l  D i s t . N o . 20 & M a r k  A l l e n , e t  a l , A p p e l l a n t s , t>.

and is also cited in “Science and The Race Problem,” supra. 
In discussing the differences between white and negro per­
sons Myrdal states that (p. 147):

“Present evidence seems, therefore, to make it highly 
improbable that innate differences exist which are as large 
as is popularly assumed and as was assumed even by 
scholars a few decades ago.”

The uncontroverted evidence in the instant case supplies 
the evidence that these differences are far larger than Myrdal 
predicted. The evidence in the case shows that three major 
differences exist between the average white and negro child 
which directly control the efficacy of any educational program 
to which they are subjected:

First, at any given time there is a difference in mental 
age, sometimes referred to as mental maturity or psycho­
metric intelligence and measured by a figure known as 
I.Q. This difference ranges from half a year on entering 
first grade to three and a half years in the twelfth grade.

Second, the growth rates of learing ability also differ 
as indicated, approximately a lag of one year for every 
four.

Third, the two groups differ sharply in the type of 
subject and type of teaching to which they respond most 
readily. The widest differences occur in mathematical 
abstraction and reading comprehension, while the smallest 
differences occur in subjects more largely based on 
memorization.

These three differences are found not only in Charleston but 
in all cities of the country regardless of either separate or 
intermixed schooling and without significant variation by rea­
son of the social background of the children.



Millicent* F . B rown, et  al, Appellees 33

Laws do not effect changes in such basic differences. The 
Court of Appeals of New York in People v. Gallagher, 93 
N. Y. 438, 448 (1883), in discussing legislation concerning the 
lack of social equality between the races, said:

. . this end can neither be accomplished nor pro­
moted by laws which conflict with the general sentiment 
of the community upon whom they are designed to op­
erate. When the government, therefore, has secured to 
each of its citizens equal rights before the law and equal 
opportunities for improvement and progress, it has ac­
complished the end for which it is organized and per­
formed all of the functions respecting social advantages 
with which it is endowed.”

If the facts given in evidence in the Court below are true— 
and on this record there is neither rebuttal nor avoidance- 
then the maintenance of a dual school system in order to 
provide optimum educational opportunities for both white and 
negro children in Charleston, South Carolina, constitutes a 
reasonable classification. Both before and since the Brown 
case, the Supreme Court has upheld reasonable classifications 
under State law as against contentions that such classifications 
violated the equal protection clause of the Fourteenth Amend­
ment ( see cases cited in II  above). That the legally relevant 
characteristics are also common to a group usually referred to 
as a “race” does not make them any the less pertinent or alter 
settled rules of constitutional construction.

In conclusion, it is submitted that an unassailable factual 
basis exists for distinguishing between the two identifiable 
racial groups for educational purposes, and that the separation 
of schools in Charleston is a reasonable classification for educa­
tional purposes where the schools are, as the evidence showed, 
specially adapted to the characteristics of each student group 
in order to afford “equal educational opportunities.”



IV.

NEITHER RES JUDICATA NOR STARE DECISIS 
FORECLOSES CONSIDERATION OF THIS EVIDENCE

The Court below stated that its decision in this regard was 
compelled by the principle of stare decisis. Neither the prin­
ciple nor its correlative rule of res judicata are in point. The 
principle of res judicata  does not apply because intervenors 
were not parties to, or members of, any class represented by 
defendants in Brown v. Board o f Education.

As to parties and privies, the final decision in Brown v. 
Board o f Education , 347 U. S. 485 (1954), is a conclusive 
adjudication of all questions, both of law and of fact, which 
were determined by the Supreme Court. Kessler v. Eldred, 
206 U. S. 285 (1907); Hart Steel v. Railroad Supply Co., 244 
U. S. 294 (1917); Hale v. Finch, 104 U. S. 261 (1881); Hans- 
herry et al., v. L ee , 311 U. S. 32 (1940); Kean v. Hurley, 179 
F. 2d 888 (C. A. 8, 1950); 28 USCA Rule 65 (d ).

In Hansberry v. L ee , the Supreme Court recognized the 
“principle of general application in Anglo-American jurisprud­
ence that one is not bound by a judgment in personam in a 
litigation in which he is not designated as a party or to which 
he has not been made a party by service of process” (311 
U. S. 32, 40). As to whether the principle is changed because 
Brown was a class suit, the Court in Hansberry further stated 
(id., 41):

“To these general rules, there is a recognized exception 
that, to an extent not precisely defined by judicial opinion, 
the judgment in a class’ or ‘representative’ suit, to which 
some members of the class are parties, may bind mem­
bers of the class or those represented who were not made 
parties to it.”

34 School D ist . No. 20 & Mark Allen , e t  al, Appellan ts, v.



Millic en t  F . B rown, e t  al, Appellees 35

However, for one to be bound in a “class” suit, “adequate 
representation” is an absolute essential. On that point, Mr. 
Justice Stone continued (id., 42-3):

“It is familiar doctrine of the federal courts that mem­
bers of a class not present as parties to the litigation may 
be bound by the judgment where they are in fact ade­
quately represented by the parties who are present, or 
where they actually participate in the conduct of the 
litigation in which members of the class are present as 
parties . . .  or where the interest of the members of the 
class, some of whom are present as parties, is joint, or 
where for any other reason the relationship between the 
parties present and those who are absent is such as legally 
to entitle the former to stand in judgment for the latter.”

Since intervenors were not parties to, or members of any 
class represented by defendants in Brown, it follows that 
Brown does not bind them under the doctrine of res judicata.

Inasmuch as the central issue of injury occurring through 
segregation presents a question of fact, and does not involve 
a rule of law, the principle of stare decisis is equally inap­
plicable. This principle applies only to conclusions of law in 
causes subsequently arising in the same court or inferior courts, 
and applies to strangers as well as to privies. 21 C. J. S. 305, 
386; 14 Am. Jur. 290.

Under this principle, therefore, this court is bound by the 
decision in the Brown case only to the extent that it states 
rules of law. Stare decisis could have no application to any 
determinations of fact in the Brown case. Since we have shown 
that injury through segregation is a question of scientific fact, 
the trial Court should have considered the evidence tendered 
to rebut plaintiffs’ assertion of such injury. See Frankfurter, 
Note, 28 Harv. L. Rev. 790 (1915), supra.



36 School D is t . No. 20 & Mark Allen , e t  al, Appellan ts, v .

It is submitted that the Court below erred in believing that 
the doctrine of stare decisis precluded it from considering the 
evidence that educational and psychological injury would re­
sult from forcible interracial congregation in the public schools 
of Charleston.

CONCLUSION

Intervenors-appellants pray this Court to reverse and re­
mand the case to the District Court with instructions to dis­
miss the complaint with prejudice with or without leave to 
plaintiffs-appellees to rebut the present uncontroverted show­
ing of injury from the plan they propose.

Respectfully submitted,

BURNET R. MAYBANK,
GEORGE STEPHEN LEONARD, 

Attorneys for Interveners-Appellants.