Chambers, Julius; and Others, after firebomb in Chambers's office, February 1971 - 3 of 16

    gwprpmp (&mvt rtf lutfrfi States

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. 
SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, 
JAMES M. TUNNELL, Members of the State Board of Education of 
the State of Delaware, GEORGE R. MILLER, JR., State Superintendent 
of Public Instruction of the State of Delaware, ALFRED EUGENE 
FLETCHER, GEORGE CLIFFORD JOHNSON, SAGER TRYON, 
EARL EDWARD ROWLES, Members of the Board of Education of the 
Claymont Special School District, HARVEY E. STAHL, and HAIG 
KUPJIAN,

ETHEL LOUISE BELTON, an Infant, by Her Guardian ad Litem, 
ETHEL BELTON, ELBERT JAMES CRUMPLER, an Infant, by 
His Guardian ad Litem, JOSEPH CRUMPLER, RICHARD LEON 
DAVIS and JOHN TERRELL DAVIS, Infants by Their Guardian ad 
Litem, JOHN W. DAVIS, SPENCER W. ROBINSON, an Infant, 
by His Guardian ad Litem, WILLIE ROBINSON, STYRON LU­
CILLE SANFORD, an Infant, by Her Guardian ad Litem, EMMA 
FOUNTAIN, ALMENA A. SHORT, an Infant, by Her Guardian ad 
Litem, JOHN SHORT, MYRTHA DELORES TROTTER, an Infant, 
by Her Guardian ad Litem HARLAN TROTTER, ETHEL BELTON, 
JOSEPH CRUMPLER, JOHN W. DAVIS, WILLIE ROBINSON, 
EMMA FOUNTAIN, JOHN SHORT, and HARLAN TROTTER,

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. 
SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, 
and JAMES M. TUNNELL, Members of the State Board of Education 
of the State of_ Delaware, GEORGE R. MILLER, JR., State Superin­
tendent of Public Instruction of the State of Delaware, GORDON F. 
BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, and 
ETHEL C. McVAUGH, Members of the Board of School Trustees of 
Hockessin School No. 29,

SHIRLEY BARBARA BULAH, an Infant, by Her Guardian ad Litem, 
SARAH BULAH, FRED BULAH and SARAH BULAH,

BRIEF OF RESPONDENTS AND APPENDIX  
TO BRIEF

October Term, 1952

No. 448

Respondents.

Respondents.

LOUIS L. REDDING, 
THURGOOD MARSHALL, 
JACK GREENBERG,

Attorneys for Respondents.

~dU (f J 3d 7
/ O -  7



TABLE OF CONTENTS

PAGE

Preliminary Statement .................................................  1
Jurisdiction ...................................................................  2
Opinions Below .............................................................. 2
Questions Presented ..................................................... 3
Statutes Involved ..........................................................  3
Statement of the C ase ................................................... 4
Summary of Argument ...............................................  9
Argument ....................................................................... 9

Factors Relevant in Equating Educational Offer­
ings ..................................................................... 9

I— The Injury Inflicted By Segregation ...............  11
II- A—The Judgment Below Should Be Affirmed

Because the Nature of the Right Requires Imme­
diate Relief ............................................................ 13

II- B—There is No Evidence That Inequalities in
Facilities Will Be Corrected in One Y ear..............  13

The Elementary Schools....................................  13
The High Schools...............................................  15

III— Respondents Were Properly Admitted to
Schools Which Had Been Set Aside For Whites 
Only, Because the Delaware Courts Cannot Ad­
minister a Decree Ordering Equalization ............. 18

Appendix ......................................................................  21



11

Table of Cases
PAGE

Gong Lnm v. Bice, 275 U. S. 7 8 ................................  6,12
Helvering v. Lerner Stores, 314 IT. S. 463, 466 .........  11
McLaurin v. Oklahoma State (Regents, 339 IT. S. 637.. 10,12
Plessy v. Ferguson, 163 U. S. 537 .............................  6,12
Sipuel v. Board of Regents, 332 U. S. 631................  12,13
Sweatt v. Painter, 339 IT. S. 629 ............................ 9,12,13
Taylor v. Smith, 13 Del. Ch. 39, 115 A. 405 ..............  18

Authorities Cited

Miller, Adolescent Negro Education in Delaware,
A Study of the Negro Secondary School and Com­
munity Exclusive of Wilmington, p. 178..............  11

Constitution of the United States:
Fourteenth Amendment ....................................  3, 5

Statutes and Constitution of the 
State of Delaware

Constitution of the State of Delaware, Article X . . . .  21
Revised Code of Delaware, 1935, Par. 2631 ............. 21
32 Laws of Delaware, Ch. 163, Sec. 2 .......................  17, 23
37 Laws of Delaware, Ch. 202, Sec. 1 .......................  17, 23



Ihtpmt? ©our! of ttft Inttefr States
October Term, 1952

No. 448

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H, 
SHALLCROSS, JESSE OHRUM. SMALL, N. MAXSON TERRY, 
JAMES M. TUNNELL, Members of the State Board of Education of 
the State of Delaware, GEORGE R. MILLER, JR., State Superintendent 
of Public Instruction of the State of Delaware, ALFRED EUGENE 
FLETCHER, GEORGE CLIFFORD JOHNSON, SAGER TRYON, 
EARL EDWARD ROWLES, Members of the Board of Education of the 
Claymont Special School District, HARVEY E. STAHL, and HAIG 
KUPJIAN,

ETHEL LOUISE BELTON, an Infant, by Her Guardian ad Litem, 
ETHEL BELTON, ELBERT JAMES CRUMPLER, an Infant, by 
His Guardian ad Litem, JOSEPH CRUMPLER, RICHARD LEON 
DAVIS and JOHN TERRELL DAVIS, Infants by Their Guardian ad 
Litem, JOHN W. DAVIS, SPENCER W. ROBINSON, an Infant, 
by His Guardian ad Litem, WILLIE ROBINSON, STYRON LU­
CILLE SANFORD, an Infant, by Her Guardian ad Litem, EMMA 
FOUNTAIN, ALMENA A. SHORT, an Infant, by Her Guardian ad 
Litem, JOHN SHORT, MYRTHA DELORES TROTTER, an Infant, 
by Her Guardian ad Litem HARLAN TROTTER, ETHEL BELTON, 
JOSEPH CRUMPLER, JOHN W. DAVIS, WILLIE ROBINSON, 
EMMA FOUNTAIN, JOHN SHORT, and HARLAN TROTTER,

Respondents.

FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. 
SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY, 
and JAMES M. TUNNELL, Members of the State Board of Education 
of the State of Delaware,. GEORGE R. MILLER, JR., State Superin­
tendent of Public Instruction of the State of Delaware, GORDON F. 
BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, and 
ETHEL C. McVAUGH, Members of the Board of School Trustees of 
Hockessin School No. 29,

SHIRLEY BARBARA BULAH, an Infant, by Her Guardian ad Litem, 
SARAH BULAH, FRED BULAH and SARAH BULAH,

Respondents.

BRIEF OF RESPONDENTS AND APPENDIX 
TO BRIEF

Preliminary Statement

The petition for writ of certiorari filed in this Court 
on November 13, 1952, was served upon respondents on 
November 17, 1952. Because of the grave importance of



2

the issues raised and their similarity to issues raised in 
Nos. 8, 101, 191, and 413, pending before this Court, re­
spondents waived the filing of a Brief in Opposition and 
moved that, if certiorari were granted, the argument be 
advanced and heard immediately following argument on 
the above-numbered cases.

On November 24, 1952, this Court entered an order 
granting the petition for writ of certiorari and granting 
respondents’ motion to advance. Brief for petitioners is 
to be filed not later than three weeks after argument.

So that before argument the Court will have before it a 
fuller exposition of the facts and issues than could be con­
tained in the petition for writ of certiorari and so that the 
Court may have before it a fuller exposition of their posi­
tion, respondents are filing their Brief in advance of peti­
tioners’ Brief.

Jurisdiction

The statement as to jurisdiction is set forth in the 
petition for writ of certiorari.

Opinions Below 1

The opinion of the Chancellor of the State of Delaware 
(A. 338) is reported in 87 A. (2d) 862. The opinion of the 
Supreme Court of the State of Delaware (B. 37) is reported 
in 91 A. (2d) 137.

1 The record in this case consists of five separate parts: appendix 
to petitioners’ brief in the court below, the supplement thereto, appen­
dix to respondents’ brief in the court below, the supplement thereto, 
and the record of proceedings in the Supreme Court of Delaware. 
These will be referred to in respondents’ brief as follows:

Appendix to petitioners’ brief below will be indicated by A; the 
supplement to the petitioners’ appendix below will be referred to as 
SA ; respondents’ appendix below will be referred to as R A ; 
the supplement to respondents’ appendix below will be referred 
to as R SA ; the record of proceedings in the Supreme Court of Dela­
ware will be referred to as R.



3

Questions Presented

1. Whether in cases in which the evidence establishes 
that racial segregation imposed by the State creates inferior 
education for Negro school children, the State constitution 
and statutes causing such inequality should be struck down 
to the extent that they require segregation, as contrary to 
the equal protection clause of the Fourteenth Amendment 
to the United States Constitution.

2. Whether in cases in which the evidence establishes 
that the State offers Negro children educational oppor­
tunity inferior to that which it offers white children simi­
larly situated, the courts below were correct in ordering 
admission of the Negro children to the superior facilities 
pursuant to the equal protection clause of the Fourteenth 
Amendment of the United States Constitution.

3. Whether, where the Courts of the State of Delaware 
have stated in this case that they do not see how a decree 
ordering inferior educational facilities equalized could be 
administered by a court of equity, they were correct in 
ordering, as the only available relief, Negro respondents 
admitted to schools which, pursuant to State constitution 
and statutes had been maintained exclusively for white 
children.

Statutes Involved

The constitutional and statutory provisions of the State 
of Delaware involved in this case are printed in the Appen­
dix to this brief.



4

Statement of the Case 2

This litigation arises from two several complaints (A. 
3-13, 13-30) filed in class actions in the Court of Chancery 
of the State of Delaware by Negro school children and their 
guardians (respondents here) seeking admittance of the 
children to two public schools maintained by the petitioners, 
as agents of the State of Delaware, exclusively for white 
children in New Castle County, Delaware.

One complaint (A. 3-13) alleges that respondents, resid­
ing in the Claymont Special School District, were refused 
admittance to the Claymont High School, maintained by 
petitioner members of the State Board of Education and 
members of the Board of Education of the Claymont Special 
School District. This refusal was solely because of respond­
ents ’ 3 color or ancestry. As a consequence, respondents 
are required to attend the Howard High School (BA. 47), a 
public school maintained separately for Negroes in Wil­
mington, Delaware. This high school conducts classes in 
two separate buildings, one known as “ Carver” being nine 
city blocks from the main Howard Building (BA. 50). All 
Wilmington public schools, including* Howard, are operated 
and controlled by the corporate “ Board of Public Educa­
tion in Wilmington,” which is not a party to this cause 
(A. 314-315, 352, B. 57, BA. 203).

2 This statement of facts is a concise description of what has gone 
before in accordance with the rules. However, in view of the brevity 
of time between the granting of certiorari and the argument herein, 
and in view of the complicated state of the record which has been filed 
consisting of five volumes numbering more than 700 pages which in 
large part overlap, respondents believe that the Court may be assisted 
in following the evidence by a somewhat lengthier statement which 
organizes the evidence taken below. For this purpose, we have placed 
in the appendix to this brief such a statement, which we hope will be 
of assistance to the Court in following the record.

3 “Respondents” hereafter in this brief refers to the infant re­
spondents.



5

The second complaint (A. 14-30) alleges that the 
respondent, seven years old, resides in the village of 
Hockessin (A. 28) and that solely because of her color was 
refused admittance to Hockessin School No. 29, a public 
elementary school, comprising grades one to six, which is 
maintained exclusively for white children by petitioner 
members of the State Board of Education and petitioner 
members of the Board of School Trustees of Hockessin 
School No. 29. The separate Hockessin School No. 107 is 
maintained for Negroes, by the aforesaid State Board of 
Education.

Respondents in both complaints assert that this exclu­
sion, or segregation (a) requires respondents to attend 
schools substantially inferior to the schools for white chil­
dren to which admittance is sought and (b) injures the 
mental health, impedes the mental and personality develop­
ment of respondents and thereby also makes inferior their 
educational opportunity as compared with the educational 
opportunity afforded white children living in Claymont and 
Hockessin. Such exclusion, respondents assert, is pro­
hibited by the equal protection clause of the Fourteenth 
Amendment of the Constitution of the United States.

Petitioners’ answers (A. 31-33, 34-37) in both cases 
defend the exclusion (a) upon mandatory constitutional and 
statutory provisions of the State of Delaware requiring that 
separate schools be maintained for white and colored chil­
dren and (b) upon the claim that the educational oppor­
tunities and advantages afforded respondents by petitioners 
are equal to those afforded white children -similarly situated.

The two cases were consolidated and tried before the 
Chancellor.

In an opinion (A. 338-356) filed April 1, 1952, the Chan­
cellor set forth a finding of fact, based on the undisputed 
oral testimony of experts in education, sociology, psychol­
ogy, psychiatry and anthropology (A. 340-341) that in “ our 
Delaware society,” segregation in education practiced by 
petitioners as agents of the State “ itself results in the



6

Negro children, as a class, receiving educational oppor­
tunities which are substantially inferior to those available 
to white children otherwise similarly situated.” However, 
the Chancellor denied respondents’ prayers for a judgment 
declaring that the Delaware constitutional and statutory 
provisions violate respondents ’ right to equal protection.

The disputed issues of fact as to the inequality of the 
“ Negro” schools as compared to the “ white” schools, the 
Chancellor resolved by finding the former substantially 
inferior to the latter. As to the high school for Negroes, 
he based this conclusion on his factual finding of inferiority, 
by comparison, in the following factors, which he viewed 
both independently and cumulatively: teacher training, 
pupil-teacher ratio, extra-curricular activities, physical 
plant and esthetic considerations, and the greater burden, 
time-wise and distance-wise, suffered by respondents in 
attending this school. As to the elementary school for 
Negroes, the trial court found it inferior in building and 
site, including esthetic values, teacher preparation, and in 
a total absence of transportation facilities or the equivalent 
thereof.

Expressly rejecting, for reasons to which we shall refer 
later (A. 352-353), petitioners’ contention that they should 
be directed to equalize the inferior segregated educational 
facilities assigned to respondents, the Chancellor issued an 
order, dated April 15, 1952, enjoining petitioners from ex­
cluding respondents, because of color from the high school 
and the elementary school found to be superior.

On appeal by the school officials, the Supreme Court of 
Delaware, in an opinion dated August 28, 1952, determined 
that the Chancellor’s factual finding that State-imposed 
segregation in public schools and equality of education are 
inherently incompatible was, in view of the doctrine enunci­
ated by this Court in Plessy v. Ferguson, 163 U. S. 537 
(1896), and Gong Lum v. Rice, 275 U. S. 78 (1927), “ imma­
terial.” The Delaware Supreme Court therefore expressly



7

approved the Chancellor’s declination of a declaratory judg­
ment that the Delaware Constitution and statutes providing 
for schools segregated on the basis of color contravened 
respondents ’ right to equal protection.

A stipulation was filed in the Supreme Court of Delaware 
setting forth counsel’s acknowledgment that the “ schedule 
of the Wilmington Board of Education calls for” transfer 
of three grades at the Howard High School to another 
Wilmington school in September, 1953 (It. 35-36).

The Supreme Court of Delaware reviewed the evidence 
relating to educational facilities for the purpose of making 
its independent finding of fact and drawing its own conclu­
sion as to whether there was “ substantial equality” (E. 45). 
As to both high school facilities and elementary school 
facilities, the Supreme Court concluded that those afforded 
respondents were not substantially equal to those available 
to white children similarly situated and that plaintiffs were 
injured by the inequality (E. 56, ,B. 63).

However, in reaching this conclusion the appellate court 
rejected conclusions of the trial court that certain of the 
factors compared were influential, or differed as to the 
degree of the influence. In evaluating the evidence as to 
the high schools, the appellate court found that differences 
in pupil-teacher ratio and formal training of teachers were 
not sufficiently significant to warrant a finding of inferiority 
in the “ Negro” school in those respects. Differences in 
extra-curricular activities also were deemed too insubstan­
tial to support a finding of inequality. There was, however, 
no rejection by the appellate court of any of Chancery’s 
conclusions with respect to the equation between the ele­
mentary schools.

Under the sub-heading “ Belief” , the opinion of the 
State Supreme Court also specifically pondered whether 
“ the form of the [Chancellor’s] decree,” in directing de­
fendants to admit plaintiffs to the facilities found to be 
superior was erroneous (E. 56). The Supreme Court con­



8

sidered the appropriateness of a decree to equalize the 
high school facilities and noted two preliminary difficulties: 
one, that the legal entity having control of the Wilmington 
public schools was not a party to the cause; two, that the 
court could not see how it could supervise and control the 
expenditure of state funds in a matter committed to the 
administrative discretion of school authorities. Determin­
ing, with respect to the high school facilities, that “ To 
require the plaintiffs to wait another year under present 
conditions would be in effect to deny them that to which we 
have held they are entitled, ’ ’ the Supreme Court upheld the 
“ injunction of the court below” as “ rightly awarded” 
(R. 58).

As to the relief with respect to the inferior elementary 
school facilities, the Delaware Supreme Court said: “ The 
burden was clearly upon the defendants to show the extent 
to which the remedial legislation had improved conditions 
or would improve them in the near future. This the de­
fendants failed to do.” The Court then alluded to its ante­
cedent discussion of the matter of relief for the high school 
respondents and said: “ It accordingly follows that the 
Chancellor’s order in respect of the admittance of the 
plaintiff” [respondent, here] to the elementary school found 
to be superior “ must be affirmed” (R. 63).

Mandates of affirmance of the judgment of the Court of 
Chancery in the high school and elementary school cases 
were issued separately by the Supreme Court on September 
9,1952 (R. 65, 66).

On September 23,1952, a motion was made by petitioners 
to the Chancellor for a stay of his order of April 15, 1952, 
and denied by the Chancellor (Appendix to Respondents’ 
brief, p. 26).

Motion to the Supreme Court of Delaware to review the 
Chancellor’s order denying a stay was made by the peti­
tioners on September 25, 1952, and the same day denied by 
the court (Appendix to Respondents’ brief, pp. 25-27).



9

Summary of Argument

The kind of harm here inflicted by segregation warrants 
affirming the judgment below because this Court has legally 
recognized such injury in prior cases.

The other injuries inflicted by inferiority in perhaps 
more measurable facilities also require affirming the order 
of immediate admission because immediacy is an integral 
part of the right.

The Delaware courts have held that they cannot issue 
the kind of decree the State requests. Therefore the decree 
which was issued represents the only method by which relief 
can be granted.

Argument

F ac to rs  R e lev an t In E q u a tin g  E d u ca tio n a l O fferings

In determining whether two educational offerings are 
“ equal” or not, the first problem appears to be to select 
the factors to be placed on each side of the equation. This 
Court has never exhaustively catalogued these; it has 
never been called upon to do so. And it is probably impos­
sible to compile a complete list in a field as dynamic as 
education. But, this Court has set up some criteria. For 
purposes of this case, we may turn also to specific factors 
which professional educators deem relevant, certainly, at 
least insofar as petitioners’ witnesses agreed with respond­
ents.

In several recent cases dealing with education at a 
different level, this Court has pointed out factors which 
are or might be significant in the kind of equation we are 
trying to set up. In the case of a law school (Sweatt v. 
Painter, 339 U. S. 629), it has especially noted the number 
of the faculty, variety of courses, and opportunity for 
specialization, size of student body, scope of the library, 
and certain extra-curricular activities. Qualities ‘ ‘incapable



10

of objective measurement” have also been weighed and it 
was pointed out that the law school cannot be effective in 
isolation from the individuals and institutions with which 
the law interacts.

In dealing with graduate education preparatory to 
teaching (McLaurin v. Oklahoma State Regents, 339 U. S. 
637), this Court again considered the factor of enforced 
isolation in that setting and determined that appellant 
there was thereby handicapped in his pursuit of effective 
graduate instruction.

That there are specific factors relevant in judging the 
institutions which are the subject of this case need not be 
left to counsel’s interpretation of the decided cases. Pro­
fessional educators, witnesses for respondents and petition­
ers have agreed on many, and respondents’ witnesses were 
uncontradicted as to the importance of others. These 
included factors related to those detailed above. Let us 
list them.

1. Travel. Respondents’ testimony (RA. 131 et seq.), 
Petitioners’ testimony (RSA. 31).

2. Sites and Buildings. Respondents’ testimony (RA. 
59,114, 136), Petitioners’ testimony (RSA. 25, 26, 31).

3. Teacher training, teaching load. Respondents’ testi­
mony (RA. 62, 65; RSA. 25, 26, 30), Petitioners’ testimony 
(RSA. 18, 31).

4. Class size. Respondents’ testimony (RA. 64), Peti­
tioners’ testimony (RA. 163, 177; RSA. 20).

5. Curriculum. Respondents’ testimony (RA. 66; RSA. 
2), Petitioners’ testimony (RA. 178-179; RSA. 28-29).

6. Extra-curricular activities. Respondents’ testimony, 
(A. 99, 137), Petitioners’ testimony (RSA. 29).

7. The effects of segregation. Respondents’ testimony 
(RA. 69 et seq., 99, 123 et seq., 141 et seq., 144-145, 146 et 
seq., 151 et seq., 155 et seq.).



11

Petitioners did not contradict this testimony. But for 
agreement with this testimony see Miller, Adolescent Negro 
Education in Delaware, a Study of the Negro Secondary 
School and Community Exclusive of Wilmington (1943), 
p. 178. This is a doctoral thesis written by the State 
Superintendent of Education of the State of Delaware 
(A. 308) who is one of the petitioners in this case. It is 
on file in the Library of Congress, among other places.4

The courts below found inequalities in most of these 
areas, and the problem with which they were faced was to 
determine what legal consequences flowed from such dis­
crepancies.5

I

The Injury Inflicted By Segregation

We urge that in affirming the judgment of the court 
below this Court give recognition and legal validity to the 
facts indisputably established in the record and found 
by the Chancellor, to the effect that state-enforced racial 
segregation inflicts a grievous mental injury on the Negro 
children who are set apart in education, even though this 
reasoning was rejected in the courts below.6

4 “If one could be assured that equal opportunities for education 
would be realized under a policy of segregation, one would not 
consider the practice as entirely unfair. But if one considers edu­
cation as life, and that the schools must somehow or other reproduce 
within themselves opportunities for life, segregation offers little 
opportunity to meet this requirement.” Miller, supra, at p. 178.

5 See the Statement of the Case, supra, pp. 6-7, and the Appendix 
hereto, infra, pp. 27-44, for a detailed exposition of the inequalities.

6 Cf. Helvering v. Lerner Stores, 314 U. S. 463, 466: “. . . Re­
spondent filed no cross-petition for certiorari. Yet a respondent 
without filing a cross-petition, may urge in support of the judgment 
under review grounds rejected by the court below.”



12

The Court of Chancery held that the Negroes’ mental 
health and therefore their educational opportunity are 
adversely affected by state imposed segregation in educa­
tion. But the Chancellor also held that he could not legally 
recognize the factual condition because to do so would be 
in effect to rule that racially segregated educational facil­
ities for Negroes could never be equal to those set apart 
for whites and were, therefore, unconstitutional; whereas, 
this Court had fairly implied that racial segregation in 
education is constitutional. The Supreme Court of Dela­
ware accepted this legal conclusion and did not review 
the factual finding.

Stating the matter simply, we do not believe that this 
Court, in the Plessy and Gong hum casfes, to which the 
Chancellor referred, intended to uphold racial segregation 
irrespective of what could be established concerning its 
effects. We do not believe that it was intended that facts 
which could demonstrate the impossibility of segregated 
facilities being equal should be ignored. They were not 
ignored in the McLaurin case, and they were not ignored 
in the Sweatt case. (Even the Gong Lum case, upon which 
petitioners so heavily rely, stated that if the pleadings had 
alleged inconvenience to the plaintiff there, a different 
issue would have been presented. And the injuries in­
flicted by segregation which this record reveals are more 
serious than mere inconvenience.)

To deny legal validity to what the record has clearly 
shown and remit plaintiffs to the vicissitudes of an ever- 
changing educational picture would place them under a 
threat of litigation that would cover all their school years. 
Where the undisputed testimony, as here, reveals that no 
matter what physical changes are instituted, Negro children 
will be disadvantaged by segregation, only a decision based 
on that ground can fully protect respondents’ rights to 
equality.



13

il-A

The Judgment Below Should Be Affirmed 
Because the Nature of the Right Requires 

Immediate Relief

But even if relief on this ground is denied, we submit 
that the grounds employed by the court below are reasons 
why the judgment should be affirmed. After all, there is 
no reason why respondents should be denied the perhaps 
more measurable opportunities which the State had denied 
them. An education consists of so many years of school­
ing and the more time respondents are required to spend 
in inferior schools, to that degree is their sum total of 
education inferior. The sooner respondents are admitted 
the closer can they come to full equality in total educa­
tion although, unfortunately, there is no way to recoup 
the losses of earlier segregated years. Immediate admis­
sion is an integral part of the right—full equality.

The necessity of such immediacy has been determined 
by this Court, Sweatt v. Painter,, 339 U. S. 629; Sipuel v. 
Board of Regents, 332 IT.’ S. 631.

II-B

There is No Evidence That Inequalities in 
Facilities W ill Be Corrected in One Year

T h e E lem en ta ry  Schools

Petitioners can refer to no evidentiary support for 
their claim of effective equalization in one year. At pages 
5-6 of their petition, they assert that “ inequalities with 
the equalization of funds provided in the last few years, 
will probably shortly disappear,” and they refer to part 
of the opinion of the Supreme Court of Delaware set forth 
at R. 62-63, presumably as support. However, fuller



14

reference to the whole text of the opinion reveals the 
infirmity of petitioners’ claim of any support therein.

The Delaware Supreme Court compared the two ele­
mentary schools in (1) public funds, (2) buildings and 
sites, (3) equipment, (4) teachers, (5) transportation. As 
to #1, public funds, the Court found current equality, 
but “ prior inequality” in the allotment of public funds 
continued “ of importance” in the equation. As to #3, 
equipment, substantial inequality was found in one item, 
namely, “ medical supplies and equipment,” with no sub­
stantial inequality in the remaining equipment. With 
respect to #2, buildings and sites, #4, teachers, and #5, 
transportation, the Court found substantial inequality.

The Supreme Court of Delaware found the petitioners 
had proved nothing in the way of substantial progress in 
the direction of equalization of existing inequalities.

As to #2, buildings and sites, the Court said: “ There 
is testimony that the State in recent years has spent or 
allotted funds for School 107, [for Negroes] in excess of 
those budgeted, for ‘delayed repairs’. This fact would 
indicate an attempt to improve the condition of the build­
ing of No. 107, but the State proffered no testimony that 
such expenditures had been made or had substantially 
equalized the condition of the physical plants of the two 
schools, or would equalise them in the near future. Knowl­
edge of the facts must certainly by attributed to the de­
fendants, and this failure to adduce them, or to show that 
disparities in the physical plant would he promptly 
remedied, is significant. ’ ’

As to #4, teachers, the Court found those at the school 
for whites “ possess a superiority” and pointed out that 
an inequality in salaries for teachers at the school for 
Negroes was “ a direct violation of our constitutional and 
statutory provisions . . .” . “ Beginning with the fiscal 
year of 1951-1952 this inequality has been remedied. The



15

plaintiff’s testimony, however, related to conditions at 
School No. 107 in October, 1951, [the time of the trial] 
and thus tended to show that the effect of the prior wrongful 
apportionment of funds still persisted. The burden was 
clearly upon the defendants to show the extent to which 
the remedial legislation had improved conditions or would 
improve them in the near future. This the defendants 
failed to do.”

As to #5, transportation, no showing was made by 
petitioners of measures looking toward effectuation of 
equality.

Upon analysis, petitioners’ assumption that they have 
made a reasonable showing of correcting, within any 
definite time, or at all, the inequalities which both the 
Delaware trial and appellate court concluded to exist in 
the facilities at the elementary school for respondents, is 
baseless.

T he High Schools

The Supreme Court of Delaware found, and approved 
the trial court’s finding of, substantial inferiority of the 
physical plant available to respondents at Howard-Carver 
as compared to the physical plant to which respondents 
sought admittance. Specifically included in this item were 
site and the esthetic attributes thereof.

As to instruction, the State Supreme Court found that 
available to respondents in the subject of physical educa­
tion clearly unequal.

As to travel and facilities therefor, the court below 
declared there was “ clear evidence of substantial inequality 
and unlawful discrimination on account of race or color.”

Petitioners expressly disclaim making challenge to these 
findings of inequalities (Petition, 4). However, to sub­
stantiate their contention that they have “ reasonably



16

shown” the possibility and probability of elimination of such 
inequalities in one year, petitioners now contend that they 
established and that the court below found (Petition, p. 5) 
that the “ schedule” of the Wilmington Board of Education 
contemplates certain changes to be accomplished by the 
beginning of the school year in September, 1953. These 
changes include removal of three grades at the Howard 
High School, enlargement of that school, and abandonment 
of its Carver building. An additional high school for 
Negroes is under construction in New Castle County.7 
Petitioners, however, fail to take into account in their claim 
of possible and probable future equalization, that Clay- 
mount also is planning an extensive building program to 
improve its school (A. 76).

Both Delaware courts throughly canvassed these asser­
tions of prospective change, weighing them in connection 
with petitioners’ request for a decree to equalize facilities. 
The trial court determined that it could not see how the 
plans advanced by petitioners would “ remove all the objec­
tions to the present arrangement” (A. 352). That is to 
say, even if and when consummated, petitioners’ projected 
changes would not produce substantial equality of the 
separate and inferior high school facilities for Negroes. 
The trial court further declared: “ I conclude that the 
State’s future plans do not operate to prevent the granting 
of relief to these plaintiffs by way of an injunction prevent­
ing the authorities from excluding these plaintiffs, and 
others similarly situated, from admission to Claymont High 
School on account of their color” (A. 353).

The Delaware Supreme Court stressed, first, that “ the 
Board of Education of the City of Wilmington, which has

7 One of the petitioners, the State Superintendent of Education, 
testified that this new school would be located 30 miles from Clay­
mont, respondents’ home community, and would entail 60 miles of 
travel per day for them (RA. 184).



17

direct supervision of the Wilmington schools, is not a party 
to the cause” (R. 57). That is to say, the claim of change 
by petitioners was wholly gratuitous, since petitioners were 
utterly without power to bring them about. The Wilming­
ton Board of Public Education was not shown to be under 
any duty to petitioners to make the alleged changes. Since 
that Board,8 not petitioners, control the public schools in 
Wilmington, that Board could with impunity change its 
plans for change.

To pursue this further: The separate high school facili­
ties available to respondents are located in the city of 
Wilmington (RA. 46). They are part of the public school 
system of Wilmington.8 See also the last quoted remarks 
of the Supreme Court of Delaware, supra. The petitioner 
State Superintendent of Public Instruction testified that 
the petitioners “ have no function of administration or 
organization in any specific sense under the law as far as 
schools of Wilmington are concerned” (A. 315). The peti­
tioners could not require the Wilmington public school 
authorities to establish “ a certain course at a certain 
school” (A. 315) or, it appears, select textbooks from lists 
published by petitioners, the members of the State Board 
of Education (A. 315-316). The public schools in Wilming­
ton are administered and controlled by the “ Board of Public 
Education in Wilmington,” a corporate entity,8 which, 
as both Delaware courts (A. 352, R. 57) pointed out, is not 
a party to this action. Since petitioners do not administer 
or control the Wilmington public schools a decree ordering

8 Respondents call attention to the following statutes of the State 
of Delaware set forth in the Appendix to this brief, p. , 
37 Laws of Delaware, Ch. 202, Sec. 1—creating the Board of Public 
Education in Wilmington as a body corporate and vesting in it title 
to all public school property in the city of Wilmington; 32 Laws of 
Delaware, Ch. 163, Sec. 2—conferring on the Board of Public Edu­
cation in Wilmington control and management of all public schools 
and public school property in the city of Wilmington and all powers 
of administration of the public school system therein.



18

them to equalize high school facilities in that city—which 
are the only high school facilities petitioners assert there 
are plans to equalize—would be a futility. Since the cor­
porate entity that controls the Wilmington facilities is not 
a party to these proceedings, a decree directed against it 
also would be a futility and legally impermissible. The 
Delaware courts have previously held that a decree preju­
dicial to a person having a material interest in the subject- 
matter of a suit cannot be made unless such person is 
before the Court as a party, is a well-established elementary 
principle. Taylor v. Smith, 13 Del. Ch. 39, 115 A. 405.

Ill

Respondents W ere Properly Admitted to 
Schools W hich Had Been Set Aside For 
W hites Only, Because the Delaware Courts 

Cannot Administer a Decree Ordering 
Equalization

But apart from all that has been stated above, immediate 
admission to the superior facilities is the only remedy for 
another compelling reason. No one denies that there are 
inequalities, and the facts as to their nature and extent 
have been thoroughly presented above.

Now, the Attorney General of Delaware says that a 
decree to equalize the inferior facilities is called for. But, 
the Court of Chancery and the Supreme Court of Delaware 
have held in this case, as a matter of State law, that they 
do not see how an equalization decree could be implemented 
(A. 352-353, R. 57).

If respondents are entitled to some relief, as the State 
concedes, and if Delaware courts find it so difficult to issue 
a decree to equalize facilities that they refuse to issue it 
(though if they could we would consider it inadequate),



19

then the only available relief is the admission order which 
was issued.

W herefore respondents pray that the judgment below 
be affirmed.

Louis L. Redding, 
Thurgood Marshall, 
J ack Greenberg, 

Attorneys for Respondents.



21

APPENDIX

Article X of the Constitution of the State of Delaware
provides in part as follows:

“ Section 1. The General Assembly shall provide 
for the establishment and maintentance of a general 
[fol. 46] and efficient system of free public schools, 
and may require by law that every child, not physi­
cally or mentally disabled, shall attend the public 
school, unless educated by other means.

“ Section 2. In addition to the income of the in­
vestments of the Public School Fund, the General 
Assembly shall make provision for the annual pay­
ment of not less than one hundred thousand dollars 
for the benefit of the free public schools which, with 
the income of the investments of the Public School 
Fund, shall be equitably apportioned among the 
school districts of the State as the General Assembly 
shall provide; and the money so apportioned shall 
be used exclusively for the payment of teachers’ 
salaries and for furnishing free text books; pro­
vided, however, that in such apportionment, no dis­
tinction shall be made on account of race or color, 
and separate schools for white and colored children 
shall be maintained. All other expenses connected 
with the maintenance of free public schools, and 
all expenses connected with the erection or repair of 
free public school buildings shall be defrayed in 
such manner as shall be provided by law.”

Paragraph 2631, Revised Code of Delaware, 1935, pro­
vides as follows:

“ Sec. 9. Shall Maintain Uniform School Sys­
tem; Separate Schools for White Children, Colored 
Children, and Moors; Elementary Schoo l sThe



22

State Board of Education is authorized, empowered, 
directed and required to maintain a uniform, equal 
and effective system of public schools throughout 
the State, and shall cause the provisions of this 
Chapter, the bylaws or rules and regulations and the 
policies of the State Board of Education to be car­
ried into effect. The schools provided shall be of 
two kinds: those for white [fol. 47] children and 
those for colored children. The schools for white 
children shall he free for all white children between 
the ages of six and twenty-one years, inclusive; and 
the schools for colored children shall be free to all 
colored children between the ages of six and twenty- 
one years, inclusive. The schools for white children 
shall be numbered and the schools for colored chil­
dren shall be numbered as numbered prior to the 
year 1919. The State Board of Education shall 
establish schools for children of people called Moors 
or Indians, and if any Moor or Indian school is in 
existence or shall be hereafter established, the State 
Board of Education shall pay the salary of any 
teacher or teachers thereof, provided that the school 
is open for school sessions during the minimum num­
ber of days required by law for school attendance 
and provided further that such school shall be free 
to all children of the people called Moors, or the 
people called Indians, between the ages of six and 
twenty-one years. No white or colored child shall 
be permitted to attend such a school without the per­
mission of the State Board of Education. The pub­
lic schools of the State shall include elementary 
schools which shall be of such number of grades as 
the State Board of Education shall decide after con­
sultation with the Trustees of the District in which 
the school is situated.”



23

37 Laws of Delaware, Chapter 202, Section 1

Section 1. That the City of Wilmington with the terri­
tory within its limits, or which in the future may be included 
by additions thereto, shall be and constitute a consolidated 
school district, and the supervision and government of pub­
lic schools and public school property therein shall be vested 
in a board of six members, to be called and known as the 
‘ ‘ Board of Public Education in Wilmington, ’ ’ Said Board, 
as hereinafter constituted, is hereby created a corporation, 
having perpetual existence and succession, and by and in 
said name shall have power to purchase, lease, receive, hold 
and sell property, real and personal, sue and be sued, and to 
do all things necessary to accomplish the purpose for which 
such school district is organized, and shall succeed to and be 
vested with, and be seized and possessed of all the privileges 
and property of whatever kind or nature granted or belong­
ing to any previous school corporation, or Board of Educa­
tion, or school districts in the City of Wilmington and said 
territory, or officers thereof authorized or empowered by an 
enactment of the General Assembly of the State to do any­
thing in reference to public education, or to hold any of said 
property.

32 Laws of Delaware, Chapter 163, Section 2 

P a ra g ra p h s  1 a n d  2

Section 2. The Board of Public Education in Wilming­
ton shall have general and supervising control, government 
and management of all the public schools and public school 
property of the city; shall exercise generally all powers in 
the administration of the public school system therein, 
appoint such officers, agents and employees as it may deem 
necessary, define their duties and fix their compensation;



24

shall have power to fix the time of its meetings, to make, 
amend and repeal rules and by-laws for its meetings and 
proceedings, for the government, regulation and manage­
ment of the public schools and school property of the city, 
and for the transaction of its business. The said Board also 
shall have power:

1. To establish kindergartens, playgrounds, elementary 
schools, secondary schools, high schools, manual training 
schools or classes, trade, vocational and continuation schools 
or classes, evening schools, schools for adults, whether 
native or foreign-born, special and truant schools, training 
schools or classes for teachers, or any other schools or 
classes which it may deem necessary or wise, for the purpose 
of training and educating the inhabitants of said city, 
whether minors or adults; and to discontinue or consolidate 
any of such schools or classes.

2. To establish or change the grades of all schools and 
to adopt and modify courses of study therefor.



25

IN THE

SUPREME COURT OF THE STATE OF DELAWARE

---------------------------------o — — — — ■

No. 15, A. D. 1952

F rancis B. Gebhart, et al,

vs.
Appellants,

E thel L ouise Belton, et al,
Appellees.

No. 16, A. D. 1952

F rancis B. Gebhabt, et al,

vs.
Appellants,

Shirley Barbara Bulah, et al,
Appellees.

o

(September 25, 1952)

Southerland, C. J ., and Wolcott, J., sitting.

Application of defendants below to review an order of 
tbe Chancellor of September 23, 1952.

H. Albert Yonng, Attorney General, and Louis J. Finger, 
Deputy Attorney General, for the applicants.

Louis L. Redding, of Wilmington, opposed.



26

Southerland, C. J .: .
This is an application to review an order of the Chan­

cellor dated September 23, 1952, refusing a stay of the 
provisions of his final order of April 15, 1952, in the cause 
below, directing the admission of the infant plaintiffs to 
certain public schools of this State.

The opinion of this Court in the cause was filed August 
28, 1952. Under the provisions of Rule 14 the mandate of 
this Court issues as of course to the court below in the 
absence of a petition for re-argument, unless the Court 
otherwise orders. No such petition or order was made 
within the ten-day period, and the mandate duly issued in 
accordance with the Rules.

On September 23, 1952, the defendants applied to the 
Chancellor for a stay of the final order of April 15, 1952. 
That order had been partly carried into effect by the admis­
sion of the infant plaintiffs to the public schools as required. 
The application for stay was of a limited nature, that is, a 
stay barring the admission to the Claymont and Hockessin 
schools of any other Negro pupils similarly situated.

The Chancellor denied the application for a stay and 
the defendants now seek a review of his order of denial.

We find three infirmities in the position of the de­
fendants.

First. The application purports to be one under Rule 22 
of this Court with respect to stays of proceedings in equity. 
We do not think Rule 22 has any application to the case. It 
refers to stays in connection with appeals to this Court. 
There is no appeal pending in this Court and we think we 
are without power or jurisdiction to review the Chancellor’s 
order. The present application cannot be considered as an 
application for further relief under paragraph 4 of the final 
order of the Chancellor of April 15, 1952, since no factual 
showing justifying such an application has been made.

Second. If, however, this application (notwithstanding 
the failure to comply with our rules respecting appeals)



27

may be regarded as properly bringing before this Court the 
merits of the Chancellor’s decision, we think that he was 
clearly right in refusing the application. It appears to be 
settled law that after affirmance of a decree of the trial court 
and the issuance of a mandate to that effect any further 
proceedings below must be in accordance with the mandate. 
Here the judgment of the court below, affirmed by this Court, 
was that those “ similarly situated” were entitled to the 
benefit of the decree. The defendants’ application is in 
effect that those “ similarly situated” be denied the benefit 
of the decree. Thus the stay requested of the Chancellor 
would be in contravention of the mandate of this Court.

Third. The purpose of the defendants to maintain the 
status quo pending certiorari proceedings in the Supreme 
Court of the United States could readily have been achieved 
by an appropriate application to this Court within the time 
permitted by Rule 14. If the period of ten days specified 
could have been made for an extension of time. No applica­
tion of any sort was made by the defendants within the time 
allowed, and the present application comes too late.

The application is denied.
(Clerk’s certificate to foregoing paper omitted in print­

ing.)

The Evidence

Educational O p p o rtu n ity — C laym ont vis-a-vis Howard

Travel and Its Significance
Undisputed testimony of plaintiffs (RA. 46-49) and 

admission in defendants’ answer (Answer in No. 258, par. 6, 
RA. 15-16) show that these plaintiff children must travel 
daily, by walking and public bus, nine miles from Claymont 
to Wilmington to attend all-Negro Howard High School 
and that in making the eighteen-mile roundtrip fifty min­



28

utes are consumed each way. Claymont High School is 
one and one-half miles from plaintiffs’1 homes and, afoot 
and by public bus, travel one way would consume twenty- 
three minutes. Some of the courses for Howard Students 
are given at Carver (ESA. 21), which is part of Howard 
(ESA. 21), in a building nine and one-half city blocks from 
the main Howard location (EA. 48), so that plaintiff Ethel 
Louise Belton, who wishes to be a stenographer, on two 
afternoons a week walks to Carver after the regular How­
ard hours and spends the two hours from 3:30 to 5:30 
P. M. in classes in typing and shorthand. These courses 
she could take in the normal school day, ending at 3:00 
P. M., if given at the main Howard building. All courses 
at Claymont High School, including these two commercial 
subjects, are given in one building and the travel back 
and forth prevalent in the Howard arrangement and the 
consumption of five extra hours per week would not occur 
(BA. 159, ESA. 19). In addition, one afternoon a week, 
after school, this plaintiff takes piano lessons.

An expert witness, a professor of psychology at Ohio 
State University, who is also a clinical psychologist and 
a consultant to the neuropsychiatric service of the Veterans 
Administration, to the United States Public Health Service 
and to many other institutions, public and private, testified 
that such bus travel renders educational opportunity at 
Howard inferior to that at Claymont, in that it “ increases 
irritability as well as fatigue” and renders plaintiffs “ less 
psychologically prepared for the learning processes which 
the school hopes to induce” (EA. 131). Further, that the 
time consumed in the greater bus travel diminishes an 
important block of the children’s time, namely, that for 
self-initiated activities, and thus also “ would be a detri­
ment in the child’s over-all education” (EA. 133). This 
testimony was uncontradicted and undisputed. That time 
spent by students is “ a disadvantage” and would “ curtail 
* * * opportunity” is stated also by the State Superintend­
ent of Public Instruction (ESA. 31).



29

The Expert’s Survey
An expert in evaluating the educational programs of 

secondary (i.e., high) schools testified as to his findings 
on the basis of a comparative survey which he made of 
the Claymont and Howard High Schools (IRA. 55-56). No 
testimony indicated that a comparable study was made by 
the defendants. Below is stated what the survey revealed.

Sites and Buildings
Claymont High School is located on a thirteen or four­

teen-acre site, ornamented by shrubbery (RA. 59; RSA. 18), 
has a football field, a quarter-mile track, girls’ hockey field 
and playground equipment (RSA. 18). The main Howard 
building is located on a three-and-one-half-acre site, flanked 
on two sides by industrial buildings and by poor housing 
on a third side. It has no playing fields of its own but 
its students may use near-by public Kirkwood Park, which 
has no football or hockey field or other regulation playing 
fields (RSA. 6; RA. 166). The Carver building of Howard 
is on a congested site, without land in front or play space 
in the rear (RA. 60). In connection with the relative size 
and adaptation of the sites, it is added that there was tes­
timony, concurred in by defendants and plaintiffs, that 
Claymont, in grades 1 to 12, inclusive, has an enrollment 
of 800, of whom. 400 are high school pupils, and Howard en­
rollment of 1,274, high school pupils only (RSA. 4-5, 16). 
See also testimony of the Assistant Superintendent in 
charge of secondary schools: “ Well, if I  had a boy of
my own I would rather have him on a place where there is 
a larger plot” (RSA. 26).

As to buildings, both the Claymont structure and the 
Howard main building are good. No inference can be 
drawn that one is better than the other, except that the 
Howard auditorium, unlike Claymont’s, must frequently 
be used for instruction of classes and to shelter home room



30

sections (ESA. 3). Howard’s gymnasium, unlike Clay- 
mont’s, is inadequate, some physical education classes at 
Howard being held in a private gymnasium three and a 
half blocks away (ESA. 1, EA. 167). Also, Howard has some 
instruction shops in a near-by annex reached by an out-door 
passageway unprotected from the weather (EA. 59). What 
is actually a third Howard building, Carver, is very old, 
without auditorium or gymnasium and with a dingy base­
ment room as a make-shift cafeteria, devoid of tables or 
chairs. It has a single lavatory for boys with unsanitary 
cement floors (EA. 59).

Teacher-Preparation and Load
A comparison of academic preparation of the teachers 

at the two schools reveals that 37.73% of those at Howard 
have master ’s degrees and 59% of the teachers at Claymont 
have master’s degrees. At Howard, the lower bachelor’s 
degree is held by 49% of the teachers and at Claymont 
by 36%. At Howard, seven teachers, or 9.4%, have no 
degree; at Claymont, one teacher, or 4.45%, appear, 
according to plaintiffs’ witness, to be without a degree 
(EA. 61). However, one of the defendants, the Superin­
tendent of Schools at Claymont, who was the only witness 
produced on this point by the defendants, testified that 
59% of the teachers there have the master’s degree; 41%, 
the bachelor’s and no teacher is without a degree (ESA. 17). 
Howard has persons without any degree teaching academic 
subjects, such as, English and mathematics, and physical 
education, as well as vocational (i.e., trade) subjects (EA. 
61), and also acting as librarian at Carver is a person not 
trained as a librarian and with a degree from an unac­
credited school (EA. 5). Claymont has no teacher without 
a degree teaching academic subjects and perhaps none 
without degree in vocational subjects (ESA. 17). Plain­
tiffs’ and defendants’ witnesses agree that the formal train­
ing of teachers, as measured by the attainment of academic 
degrees, is an index of teacher preparation and proficiency



31

(BA. 62; BSA. 25, 26). And in direct examination, de­
fendant, Dr. George B. Miller, Jr., State Superintendent 
of Public Instruction, said: “ Now with regard to degrees, 
of course we must admit that the possession of degrees 
carries with it the assumption that the teacher is going 
to be the better teacher. We can’t get out of that” (BSA 
30). It appears that under State law and practice, teacher 
salary is scaled, at least in part, upon the possession of 
academic degrees, a salary higher by $200 being paid to 
a holder of a master’s degree than to the holder of only 
a bachelor’s (BSA. 17; BA. 175; BSA. 26; BSA. 31).

As to average class size at the Claymont and Howard 
high schools, undisputed testimony of the expert stated the 
comparative figures, showing in six instances substantial 
disparities in favor of Claymont, as follows:

Claymont Howard
English 25.56 32.26
Foreign Languages 25.75 31.10
Home Economics 16.2 24.71
Industrial Arts 17.14 23.9
Mathematics 30.60 33.25
Natural Sciences 34.87 32.26
Physical Education 24.28 43.67
Social Studies 33.88 32.05

(BA. 62-63)

While these figures are as to average class size, the 
uncontradicted evidence was that in some classes in Physi­
cal Education at Howard the number of pupils was 55 and 
in one, 88 (BA. 167), and that such numbers were “ so large 
as to seriously jeopardize” the possibility of education in 
that field (BA. 65). The optimum class size is conceded to 
be twenty-five (BSA. 20). The evidence reveals no class 
load situation at Claymont comparable to the extraordi­
narily large classes at Howard.



32

In the above table, in the two instances in which average 
class sizes at Claymont were greater than in similar courses 
of study at Howard, the relative disparities are much 
smaller than in any of the six groups of classes where 
Howard class sizes exceed Claymont’s (RA. 64). The 
expert in school evaluation testified that pupils in the 
smaller classes have better educational opportunity, because 
they can participate more and learn from participation and 
because the teacher has more time to handle individual 
differences of pupils and to prepare, to grade papers, and 
to evaluate notebooks (RA. 64). Defense witnesses agreed 
too that the “ teacher begins to feel overloaded in regard 
to the services she can give pupils if it runs over 25” (RA. 
177), although. other defense testimony deemed the differ­
ences insubstantial (A. 272-276, 329-330, 302-306).

At Claymont the average teacher has a teaching load of 
149 pupils per week; at Howard, the teaching* load carried 
by the average teacher is 178 pupils per week (RA. 65). 
Defendant Stahl, Superintendent of Schools at Claymont, 
testified on cross-examination that at Claymont the average 
teacher teaches between 140' and 150 pupils per wyeek and 
that a teacher with such a teaching load would teach more 
effectively than one teaching 178 pupils per week (RSA. 
17-18, RA. 163).

Curricula and Extra-Curricular Activities
At Claymont, according to the evidence, seven academic 

courses are offered which are not offered at Howard. These 
include Public Speaking, Spanish, Trigonometry, Mathe­
matics Review7, Sociology, Economics and Air Age, or World 
Geography (RSA. 2-3, 13-14). That courses so designated 
do not exist at Howard seems conceded. This is a factor 
in evaluation, defendants’ testimony agreed (RA. 178-179). 
But defendants says the following: Howard, with no public 
speaking course, has a debating team as an extra-curricular 
activity (RSA. 20); while both Spanish and French now are



33

the modem languages taught at Claymont and only French 
at Howard (ESA. 20), Claymont is now in a transition back 
to French alone (ESA. 13-14). As for the sociology and 
economics courses which Claymont gives, Howard has a 
course known as “ Problems in Democracy,” which defend­
ants “ presume * * # would be very comparable” (ESA. 14) 
or would embrace some of the content of a course in soci­
ology (ESA. 21-22). Trigonometry also is taught to one 
student at Howard in a class where others are being taught 
intermediate algebra (ESA. 21). The mathematics review 
at Claymont is an “ open air course, ’ ’ for students needing 
review before going out to get a job, but principally for 
students “ who are not willing to work hard enough to 
master the other mathematical courses” (ESA. 15). How­
ard also offers seven vocational courses not offered at 
Claymont (ESA. 3).

With a school newspaper, a Leaders Corps, Art Club, 
Mathematics Club, Drivers’ Club, Square Dance Club, and 
Tumbling Girls, Claymont has wider pupil, or extra-cur­
ricular activities than provided by the Story Hour Club, 
Science Club, and French Club fostered at Howard (EA. 
67-68; ESA. 16).

Miscellaneous Facts

Accreditation
Both Claymont and Howard are accredited by the 

Association of Colleges and Secondary Schools of Middle 
States and Maryland, which means that both schools have 
met minimum requirements although there may be wide 
discrepancies between the qualities of the schools con­
cerned (A. 47).

Equipment
Both schools are well supplied and well equipped (A. 66).



34

Health Services
The Claymont School has a full-time nurse. The How­

ard School has a nurse four-fifths of the time (A. 62). The 
Howard School, along with all other high schools of the 
city of Wilmington, shares in the services of a number of 
psychologists, psychiatrists, dentists, physicians, hygien­
ists, nurses (A. 150, 153). At the Claymont School, the 
nurse inspects the children yearly and the doctor inspects 
the children no more than once every other year (A. 185).

Library
The librarian at Howard has adequate training (A. 71). 

The librarian at Carver holds a degree from a non-accred- 
ited school (A. 71). The librarian at Claymont holds a 
degree in Library Science (A. 72).

The copyrights and basic reference material at both 
schools are very satisfactory. Howard High School has 
the larger library (A. 72).

Guidance
There are two, full-time guidance teachers at Howard 

(A. 196). There is a full-time guidance teacher at Clay­
mont (A. 171). Howard High School shares in the citywide 
guidance program of Wilmington (A. 150, 153).

Opinion Testimony on the Ilowurd-Claymont 
Comparison

Having surveyed the two schools and placed in evidence 
the comparative facts disclosed by his survey, the expert 
in school evaluation testified also as to his opinion that the 
educational opportunity offered at Claymont High School 
was superior to that at Howard High School (RA. 66).

On the basis of this surveyor’s testimony as to the com­
parative facts relating to the respective Claymont-Howard 
school sites, buildings, teacher preparation, teacher load, 
curriculum, and extra-curricular activities, and on the basis



35

of a hypothetical question embodying these facts, pro­
fessionals specializing in the science of education, some 
of them professors employed in the public college system 
of the State of Delaware, placed in evidence their expert 
opinions that Claymont offered superior eductional op­
portunity to that offered by Howard (BA. 98-99, 133-137, 
137-138, 143-144).

No contrary value judgments, or opinions, were offered 
by the defendants to counterbalance the evidence put into 
the record by these experts.

E d u ca tio n a l O p p o rtu n ity — H ockessin  School 
No. 107 vis-a-vis School No. 29

Expert’s Survey
A second expert (BA. 101-103) in evaluating the educa­

tional facilities and programs of elementary schools testi­
fied as to his findings on the basis of a comparative survey 
which he made of Hockessin Schools No. 107 and No. 29. 
No testimony indicated that a comparable study was made 
by the defendants.

Sites and Buildings
School No. 29 is on a five-acre site (BA. 173), described 

as “ extraordinary beautiful,” landscaped and having a 
pine watershed, a multiflora rose border, bushes, trees 
(BA. 107-108). On the playground are eight varieties of 
play equipment, and marked off are a baseball diamond, 
with benches and backstop, and separate courts for basket­
ball, volleyball, and soccer (BA. 114). No. 107 is on a two- 
acre sit (BA. 173), unenhanced since the school was con­
structed, with no landscaping (BA. 107). It has three 
varieties of play equipment, in part in need of repair, and 
no diamond or courts as at No. 29 (BA. 114). The Assistant 
State Superintendent of Education in charge of elementary 
schools, a witness for defendants, stated that the play­



36

ground at No. 29 is superior to No. 107’s. That size of site 
(RA. 173; ESA. 26; RA. 178) specially prepared and 
equipped playing fields (RA. 176) have significance in 
comparing two schools to determine which is superior was 
acknowledged by witnesses called by the defendants, as 
well as by testimony for plaintiffs. That beauty has value 
for the learning process also is concurred in by witnesses 
called by the defendants (RSA. 19; RA. 174; RSA. 25; 
RA. 178) and by plaintiffs (RA. 107-108).

School No. 29, constructed in 1932 (RA. 105), is a build­
ing with four classrooms (RA. 103). Its original cost was 
$55,438.83 (RA. 105). School No. 107, completed as a one- 
room school in 1922, at a cost of $21,382.74, has a present 
value of $13,100 (RA. 105). The appreciation in value of 
No. 29 of 39%, and the depreciation of No. 107 of 39%, 
reflect disparities between the two schools in improvement, 
maintenance and upkeep (RA. 105-106). No. 107 became 
a two-room school by the insertion of a sliding partition 
(RA. 103).

No. 29 has a full-time custodian equipped with an electric 
vacuum cleaner, power lawn mower, manual lawn mower, 
besides brooms, mops, and pails. No. 107 has a part-time 
custodian equipped only with brooms, brushes, mops, pails 
and wastebaskets (RA. 106).

There are other differences: No. 29 has an auditorium; 
No. 107 has none (RA. 111). No. 29 has an indoor basket­
ball court which petitioners’ witness testified is no longer 
in use (A. 215); No. 107 has none (RA. 111). No. 29 has a 
partial basement, providing storage space and more ade­
quate space for heating and hot water systems; No. 107 
has none (RA. 111-112). No. 29 has several of the pro­
fessionally accepted forms of drinking fountain; No. 107 
does not have professionally acceptable drinking facilities 
(RA. 112). No. 29 has sanitary toilet and lavatory facilities 
in a large, well-ventilated, well-lighted room; No. 107 has 
one commode in a closet-like, small room adjoining storage 
space for children’s lunches, clothing, janitorial materials,



37

and the school’s drinking water bottles (RA. 112). No. 
29 has a well-equipped nurse’s office; it also has a part- 
time nurse, paid by the State (ESA. 22-23; RA. 172; RSA. 
24). No. 107 has but a first-aid packet and no nurse (RA. 
113). No. 29 has an electric refrigerator for the storage of 
milk and has a milk program; No. 107 has neither (RA. 112- 
113). For protection against the hazard of fire, No. 29 
has seven fire extinguishers and five exits; No. 107 has three 
fire extinguishers, its one main exit and another through 
its furnace room (RA. 121).

On the Strayer-Englehart score card, an index developed 
and employed by educators to evaluate the physical condi­
tion of a school plant (RA. 114-115, 185-188), School No. 
29 scored 594 out of a possible 644 points; School No. 107, 
281 out of the same possible point score (RA. 115).

Instructional Materials and Accessories
No. 29 has 779 library books of separate title; No. 107 

has a library of 394 books of separate title (RA. 116-117). 
No. 29 has a globe in each of its four classrooms; No. 107 
has one globe for its two classrooms (RA. 117). No. 29 
has a victrola in each classroom; No. 107 has one victrola 
(RA. 117). No. 29 has a film library for film strips, 
“ catalogued and rather complete’’; No. 107 has but several 
film strips (RA. 117). The State Superintendent of Public 
Instruction stated that the availability of instruction ma­
terials is a factor in comparing two schools (RA. 177-178).

As to some of the disparities in playground, site, drink­
ing fountains, physical education and recreation equipment, 
milk program and institutional equipment, petitioners pro­
duced exhibits and testimony which sought to show that 
the property was given to the State by the Parents-Teachers 
Association (A. 215-217, 229-230).



38

Relative Expenditures for Schools 29 and 107

For 1949-1950, the latest year for which the information 
was available, the total expenditure of $18,170.73 for No. 
29, and $5,489.52 for No. 107 (RA. 110), when itemized, 
revealed the following differences:

Administrative Control 
Instructional Services 
Operation of Plant
Maintenance ................
Promotion of Health .
Capital Outlay ...........
Library Books ...........

No . 29 No. 107
$ 72.06 Nothing
12,805.47 $4,663.70 
2,942.92 540.78

135.78 301.24
317.74 Nothing 

1,731.30 149.26
119.37 34.52

Total for educational purposes $18,170.73 $5,489.52
(RA. 109-110).

When these expenditures are translated in terms of the 
number of pupils in each school, on the basis of average 
daily attendance, the expenditure per pupil in No. 29 was 
$178.13; in No. 107, $137.22 (RA. 110). There was spent on 
the education of each child in No. 107 only 77% of the 
amount spent on each child in No. 29 (RA. 110-111).

Teacher Preparation, Rating and Load
In School No. 29, two teachers have both the Bachelor 

of Arts and Master of Arts degrees, and the remaining 
two have no degree, although one of the latter would re­
ceive her Bachelor of Arts degree in elementary education 
at the end of the then current semester (i.e., in January, 
1952) (RA. 118; RSA. 6). At No. 107, one teacher had the 
Bachelor of Arts degree; the other teacher had no degree. 
The additional training possessed by teachers with Mas­
ter’s degrees is awarded higher pay by the State (RSA. 17; 
RA. 175; RSA. 25, 30, RA. 178) and, according to the testi­
mony of the State Superintendent of Public Instruction, 
carries the assumption of better teaching (RSA. 30).



39

The same Comity Supervisor has rated all teachers in 
both schools; all four in No. 29 are rated “ A ” teachers; 
both, in No. 107, are rated “ B ” teachers. The “ A ” rating 
is given teachers who are superior in classroom presenta­
tion, skill, techniques in accomplishing aims, progress made 
by the class, scholarship, professional growth and definite­
ness of aim. “ B ” teachers, rated on the same criteria, do 
not achieve in so high a degree (BA. 118-119). The Assist­
ant State Superintendent for elementary schools and the 
State Superintendent testified that “ A” teachers are 
superior to “ B ” teachers (BA. 174-175, 181).

Because in No. 29 each teacher is required to allot her 
instructional time between two grades in a classroom, and 
in No. 107 a teacher makes similar allotment among three 
grades in a classroom, a pupil in No. 107 can receive but 
60 days of individual attention for his grade level; where­
as, a pupil in No. 29 receives 90 days per school year. A 
teacher at No. 29 can give 50% of her school day to each of 
her two grades; a teacher at No. 107, but 33%% to each of 
her three grades (BA. 116). State testimony recognizes that 
teaching load is a significant factor in school comparisons 
(ERA. 176).

Achievement Tests
In achievement tests, pupils in No. 29 surpass pupils in 

No. 107. This, at least partially, can be attributed to the 
disparity in physical plant, instructional and recreational 
equipment, teacher training and skills, and opportunity for 
teacher attention (BA. 118-120). That it is not attributable 
to any innate differences in capacity determined by race, 
has been established by scientific research, as testified to by 
an authority in intelligence measurement, Dr. Otto Kline- 
berg, of Columbia University (RA. 122). No contradiction 
was offered to this testimony, nor any attempt made to 
weaken it by cross-examination, which was waived.



40

Travel
Bus transportation is afforded to No. 29 for pupils sit­

uated similarly to infant plaintiff. Neither bus transporta­
tion nor its equivalent is furnished to No. 107 (BA. 51-55).

Opinion Testimony on the No. 107 No. 29 Comparison
Having comparatively surveyed Hockessin Schools No. 

29 and No. 107, the professional educator who made the 
survey testified “ that there is no evidence of equality in 
the educational facilities afforded in the two schools” , and 
that No. 29 affords facilities “ far superior” to those af­
forded by No. 107 (BA. 120-121).

Other professional educators placed in the record their 
separate opinions, based on the facts in evidence, that 
School No. 29 offered educational opportunity superior to 
that offered by School No. 107 (BA. 98-99,, 133-137,143-144). 
No opposing expert opinion was offered by the defendant, 
although the Assistant State Superintendent in charge of 
elementary schools, including the two schools being com­
pared, a witness for defendants, professed familiarity with 
these schools (BSA. 22, 24).

The Facts Concerning Segregation Itself
Hr. Fredric Wertham, one of America’s most eminent 

psychiatrists, who has long studied the psychological ef­
fects of racial segregation and discrimination, testified that 
the mere fact of state-enforced racial segregation in edu­
cation seriously damages the segregated Negro children. 
Dr. Wertham examined Delaware school children at the 
LaFargue Clinic in New York City. He concluded as a 
result of this examination, and the great learning and ex­
perience of a distinguished medical career, that the State, 
by segregating, injures the Negro child’s mental health 
(BA. 76-77). Analyzing the problem from many points of 
view because the causal factors in mental life operate in



41

a complicated way (BA. 75), Dr. Wertharn testified that 
school segregation produces an unsolvable conflict (RA. 
76-77) which seriously interferes with the child’s mental 
health, the particular form or combination of forms of 
hardship possibly varying in different cases (BA. 78-80, 
82-86). Recognizing that these facts are not caused by 
school segregation alone, he demonstrated why school seg­
regation is of paramount importance in this area:

(1) It is absolutely clear cut.
(2) The State does it.
(3) It is of continuous duration.
(4) It is bound up with the whole educational process 

important for the mental health of the child.
(5) It hits the child:

(a) At the moment he leaves the sheltered family 
life and makes contact with the social group in gen­
eral, and (b) during adolescence when children for 
the first time must find social groups for themselves. 
By segregating at these times, the State identifies 
itself with its most bigoted citizens (BA. 85-87).

White children are injured too by the classification, 
though to a different extent and in a somewhat different 
manner (BA. 91-92).

Dr. Wertharn summed up his testimony thus:
“ * * * Segregation in schools legally decreed by 

statute, as in the State of Delaware, interferes with 
the healthy development of children. It doesn’t ne­
cessarily cause an emotional disorder in every child. 
I  compare that with the disease of tuberculosis. In 
New York thousands of people have the tubercle ba­
cilli in their lungs—hundreds of thousands—and they



42

don’t get tuberculosis. But they do bave tbe germ 
of illness in them at one time or another, and the 
fact that hundreds of them don’t develop tubercu­
losis doesn’t make me say, ‘Never mind the tubercle 
bacillus; it doesn’t harm people, so let it go’ ” 
(RA. 92).

Dr. Jerome S. Bruner of Harvard University and the 
Institute for Advanced Study, another witness with out­
standing qualifications as a psychologist, but whose scien­
tific background contains emphases of learning and experi­
ence different from those of Dr. Wertham, testified, too, 
that segregation per se injures the Negro child. Consider­
ing the fact that education influences the child’s maturing 
as well as the fact that it imparts skills, he testified of 
segregation that “ whether * * * of such a sort that the 
facilities are physically equal or not equal * * * it seems 
# * * perfectly patent on the basis of studies that have been 
done that the fact of segregation as such damages the 
child’s capacity to benefit from education” (RA. 125). 
Adverting to the fact of enforced limited contact with the 
white community at an early age, and the necessity of gen­
eral contact at, for example, the nonsegregated State Uni­
versity (RA. 125), he testified that it is damaging for these 
students not to have had experience in getting on with white 
fellow-schoolmates before the level of college (RA. 125-126). 
This is particularly so because where “ the person does not 
gain social skills at an appropriate age it gets increasingly 
more difficult for him to do so later—this by virtue of 
what psychologists call the ‘law of primacy’.” Dr. Bruner 
explained some scientific significance of this early segre­
gation experience, such as consequent degradation of 
self-esteem, attendant frustration, hostility (RA. 126-127), 
rejection, lowered motivation (RA. 127), and consequent 
diminished capacity for learning (RA. 127-128). The elimi­
nation of legally-enforced segregation would abate this 
harm (RA. 128-129; RSA. 7-9).



43

Dr. John Kenneth Morland, Assistant Professor of 
Sociology and Anthropology at the College of William and 
Mary, testified from still another background of scientific 
experience and learning. The legally-enforced separation 
of the Negro child from the main stream of American, 
culture (KA. 147) produces deleterious effects which Dr. 
Morland carefully studied for his forthcoming “ Mill Village 
Life in a Piedmont Town: A Cultural Analysis,” to be 
published by the North Carolina Press, and elsewhere. In 
Dr. Morland’s opinion, the elimination of legally-enforced 
segregation at the elementary and high school level would 
diminish the harmful consequence which he described (BA. 
150). To this effect he cited studies in various fields, 
including that of education (BA. 150; B. 387-389).

Dr. Kenneth Clark, of the College of the City of New 
York, and co-director of the Northside Center for Child 
Development, examined Delaware school children by means 
of projective tests, and also found that racial segregation 
has harmful effects upon them (BA. 168 et seq.).

Dr. George Gorham Lane, Associate Professor of 
Psychology at the University of Delaware, whose back­
ground includes having been presiodent of the Delaware 
Psychological Association (BA. 151), testified that in Ms 
expert opinion segregation definitely injures those who are 
segregated (BA. 152). Dr. Frederick B. Parker, among 
other things Professor of Sociology and Chairman of the 
Department of Sociology of the University of Delaware 
(BA. 154), testified similarly, adding that the removal of 
enforced segregation would reduce this damage. Dr. 
Parker and Dr. Lane, as leaders in the psychological and 
sociological fields in Delaware, confirm the testimony of 
previous witnesses to the effect that no special conditions 
prevail in this State, which make the effects of segregation 
here less deleterious than elsewhere; and that racial integra­
tion in Delaware would abate this damage (BA. 152-154, 
157-158).



44

Professional educators, considering the fact of segre­
gated education as educators, arrived at the same conclu­
sions, with perhaps somewhat different emphasis in their 
reasoning, reflecting differences in their major fields of 
interest. The testimony of Dr. Ellis 0. Knox (RA. 99-100), 
an expert in the field of education, was that segregation 
per se constitutes a distinct educational inferiority for the 
segregated Negro children. Dr. Dan W. Dodson, Professor 
of Education at New York University, also testified that 
segregation, without more, causes inferior education for 
the segregated Negro children (RA. 141-143). Similar 
testimony was provided by Dr. Maurice E. Thomasson, 
Acting President of Delaware State College (RA. 144-145; 
R. 379). As educators, they found, among other things, 
that the “ learning situation” (RA. 99-100) is inferior, 
“ motivation” to learn and “ aspiration” are impaired, 
“ perspective” is distorted (RA. 141-142) and that there 
is a setting off from the main streams of Americal life 
(RSA. 10).



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