Brown v. Board of Education Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in No. 5 on Further Reargument

    IN  THE

(Emtrt nf %  lmt£& States
October Term, 1954

No. 1
OLIVER BROWN, et al ., Appellants, 

vs.
BOARD OF EDUCATION OF TOPEKA, et al., Appellees.

No. 2
HARRY BRIGGS, JR., et al ., Appellants,

R. W. ELLIOTT, et al., Appellees.

No. 3
DOROTHY E. DAVIS, et al ., Appellants, 

vs.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, 

VIRGINIA, et al., Appellees.

No. 5
FRANCIS B. GEBHART, et al., Petitioners, 

vs.
ETHEL LOUISE BELTON, et al., Respondents.

A ppeals F rom the U nited States D istrict Courts for the D istrict of 
K ansas , the E astern D istrict of South Carolina and the E astern 
D istrict of V irginia, and on P etition for a  W rit of Certiorari to the 

Supreme Court of D elaware, R espectively

BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 3 AND FOR 
RESPONDENTS IN NO. 5 ON FURTHER REARGUMENT

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
DAVID E. PINSKY,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.



TABLE OF CONTENTS

PAGE

Preliminary Statement .................................................  2

Questions Involved ....................................................... 2
Developments in These Cases Since the Last Argu­

ment ...............................................................................  3
The Kansas Case ...................................................  3
The Delaware Case ...............................................  4
The South Carolina C a se .....................................  7

The Virginia Case .................................................  8

Argument:
I. Answering Question 4: Only a Decree Requir­

ing Desegregation as Quickly as Prerequisite 
Administrative and Mechanical Procedures Can 
Be Completed Will Discharge Judicial Responsi­
bility for the Vindication of the Constitutional 
Rights of Which Appellants Are Being De­
prived ........................................................................  10
A. Aggrieved Parties Showing Denial of Con­

stitutional Rights in Analogous Situations 
Have Received Immediate Relief Despite 
Arguments For Delay More Persuasive Than
Any Available Here .....................................  11

B. Empirical Data Negate Unsupported Specu­
lations That a Gradual Decree Would Bring 
About a More Effective Adjustm ent.............. 16



II. Answering Question 5: If This Court Should 
Decide to Permit an “ Effective Gradual Ad­
justment”  from Segregated School Systems to 
Systems Not Based on Color Distinctions, It 
Should Not Formulate Detailed Decrees but 
Should Remand These Cases to the Courts of 
First Instance with Specific Directions to Com­
plete Desegregation by a Day Certain................ 24

Declaratory Provisions.....................................  26
Time Provisions .................................................  28

Conclusion ....................................................................... 31

Table o f  Cases

Arizona Copper Co. v. Gillespie, 230 U. S. 4 6 ..........  14, 28
Bolling v. Sharpe, No. 4 (Oct. Term, 1954) .............. 22
Buchanan v. Warley, 245 U. S. 6 0 ...............................  25
Burr v. Bd. of School Commrs. of Baltimore, Supe­

rior Court of Baltimore City, Oct. 5, 1954 (unre­
ported) ......................................................................... 27

Ex Parte Endo, 323 U. S. 283 ................................. 12,13, 25
Georgia v. Tennessee Copper Co., 206 U. S. 230 ........ 14, 28
Hartford-Empire Co. v. United States, 323 U. S. 386 15
Monk v. City of Birmingham, 185 F. 2d 859 (C. A.

5th 1950), cert, denied 341 U. S. 940 ........................ 25
New Jersey v. New York, 283 U. S. 473 .....................  14
Schine Chain Theatres v. United States, 334 U. S.

H O .................................................................................  15
Simmons v. Steiner, 108 A. 2d 173 (Del. Ct. Chanc.

1954) ...............   6
Sipuel v. Board of Regents, 332 U. S. 6 3 1 ................ 10,11

i i

PAGE



Ill

Standard Oil Co. of New Jersey v. United States, 221
U. S. 1 ......................................................................... 15

Steiner v. Simmons (Del. Sup. Ct. No. 27, 195 4 )___  6, 27
Sweatt v. Painter, 339 U. S. 629 .................................  11
United States v. American Tobacco Co., 221 U. S. 106 15, 30 
United States v. Crescent Amusement Co., 323 U. S.

1 7 3 .................................................................................  15
United States v. National Lead Co., 323 U. S. 319 . . .  15
Westinghouse Air Brake Co. v. Northern Ry. Co.,

86 Fed. 132 (C. C. S. D. N. Y. 1898)........................ 28
Wisconsin v. Illinois, 278 U. S. 367 ............................ 14
Wisconsin v. Illinois, 281 U. S. 1 7 9 .............................  28

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
5 7 9 .................................................................................... 11,12

Statutes Cited

28 U. S. C., § 1343 ........................................................... 14
42 U. S. C., § 1983 .........................................................  14
Del. Code Tit. 3, § 121 (1953 )....................................... 4
Del. Code Tit. 14, § 702 (1953 ).....................................  5
Del. Code Tit. 14, § 902 (1953 ).....................................  5

Other Authorities

Ashmore, The Negro and the Schools (1954)........17,19, 20,
21, 30

Brogan, The Emerson School—Community Problem,
Gary, Indiana, Bureau of Intel-cultural Education 
Report (October 1947, mimeographed) .................. 19

Charleston News and Courier, August 4, 1954 ........  8

Chein, Deutsch, Hyman and Jahoda, Consistency 
and Inconsistency in Intergroup Relations, 5 J.
Social Issues 1-63 (1949 )......................................... 18

PAGE



IV

Clark, Desegregation: An Appraisal of the Evidence,
9 J. Social Issues 1-77 (1953 )....................17,18,19, 20, 21

Clark, Effects of Prejudice and Discrimination on 
Personality Developments, Mid-Century White 
House Conference on Children and Youth (mimeo­

PAGE

graphed 1950) ............................................................. 20

Clark, Some Principles Related to the Problem of 
Desegregation, 23 J. Negro Ed. 343 (1954)............ 20

Clement, Racial Integration in the Field of Sports,
23 J. Negro Ed. 226-228 (1954) ...............................  19

Conference Report, Arizona Council for Civic Unit 
Conference on School Segregation (Phoenix, Ariz­
ona, June 2, 1951) .......................................................  19

Culver, Racial Desegregation in Education in Indi­
ana, 23 J. Negro Ed. 296, 300-302 (1954) ..........20, 21, 30

Deutsch and Collins, Interracial Housing, a Psycho­
logical Study of a Social Experiment (1951) ..........  18

Knox, Racial Integration in the Schools of Arizona,
New Mexico and Kansas, 23 J. Negro Ed. 291, 293 
(1954) .....................................................................   21

Kutner, Wilkins and Yarrow, Verbal Attitudes and 
Overt Behavior Involving Racial Prejudice, 47 J. 
Abnormal and Social Psych. 649-652 (1 9 5 2 ).......... 18

La Piere, Attitudes vs. Action, 13 Social Forces 230- 
237 (1934) ................................................................... 18

Merton, The Social Psychology of Housing (1948).. 19
Merton, West and Jahoda, Social Fictions and Social 

Facts: The Dynamics of Race Relations in Hill- 
town, Columbia University Bureau of Applied 
Social Research (mimeographed) .............................  19



V

Merton, West, Jahoda and Selden, Social Policy and 
Social Research in Housing, 7 J. Social Issues, 132- 
MO (1951) ................................................................... 19

New York Times, “ 7 of South’s Governors Warn of 
‘ Dissensions’ in Curb on Bias—Avow Right of 
States to Control Public School Procedures—Six 
at Meeting Refrain from Signing Statement” , 
November 14, 1954, p. 58, col. 4 -5 ............................ 19

New York Times, “ Mixed Schools Set in ‘ Border’ 
States” , August 29, 1954, p. 88, col. 1 -4 ................ 19

New York Times, “ New Mexico Town Quietly Ends 
Pupil Segregation Despite a Cleric” , August 31,
1954, p. 1, col. 3 -4 .......................................................  19

Next Steps in Racial Desegregation in Education,
23 J. Negro Ed. 201-399 (1954) ...............................  17

Nichols, Breakthrough on the Color Front (1954).. 19
Report by the President’s Committee on Equality of 

Opportunity in the Armed Forces (1950 ).............. 17
Rose, You Can’t Legislate Against Prejudice— Or 

Can You?, 9 Common Ground 61-67 (1949)............ 19
Saenger and Gilbert, Customer Reactions to the 

Integration of Negro Sales Personnel, 4 Int.
J. Opinion and Attitudes Research 57-76 (1950).. 18

Southern School News, Sept. 3, 1954, p. 12, col. 3-4 8
Southern School News, Sept. 3, 1954, p. 13, col. 5 . . .  9
Southern School News, Oct. 1, 1954, p. 14, col. 2-3 9
Southern School News, Oct. 1,1954, p. 14, col. 5 ........ 10
Tipton, Community in Crisis 15-76 (1953) ................ 19,20
Wright, Racial Integration in the Public Schools of 

New Jersey, 23 J. Negro Ed. 283 (1954 )................ 21

PAGE



IN  THE

§>uprpmp CEnurl of fl|p States
October Term, 1954

---------------------- o-----------------------

No. 1
O liv e r  B r o w n , et al., Appellants,

vs.

B oard op E d u ca tio n  of T o pe k a , et al., Appellees.

No. 2

H ar r y  B riggs, J r ., et al., Appellants,

vs.

R . W . E l l io t t , et al., Appellees.

No. 3

D o r o th y  E . D av is , et al., Appellants, 
vs.

C o u n t y  S ch o ol  B oard op P r in c e  E dw ard  C o u n t y , 
V ir g in ia , et al., Appellees.

No. 5

F ra n c is  B . G e b h a r t , et al., Petitioners, 
vs.

E t h e l  L ouise  B e l t o n , et al., Respondents.

A pp e a ls  F ro m  t h e  U n it e d  S tates  D istr ic t  C ourts  for 
t h e  D istr ic t  of K an sa s , t h e  E aste rn  D istr ict  of 
S o u t h  C a r o lin a  an d  t h e  E aste rn  D istr ict  of V ir g in ia , 
an d  o n  P e t it io n  for  a  W r it  of C ertio rari to t h e  

S u p r e m e  C ourt  of D e la w a r e , R e spe c t iv e ly .

------ ---------------- o--------- --------------

BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 3 AND FOR 
RESPONDENTS IN NO. 5 ON FURTHER REARGUMENT



2

Preliminary Statement

On May 17, 1954, this Court disposed of the basic con­
stitutional question presented in these cases by deciding 
that racial segregation in public education is unconstitu­
tional. The Court said, however, that the formulation of 
decrees was made difficult “ because these are class actions, 
because of the wide applicability of this decision and 
because of the great variety of local conditions . . . The 
cases were restored to the docket, and the parties were 
requested to present further argument on Questions 4 
and 5 previously propounded by the Court for the reargu­
ment last Term.

Questions Involved

Questions 4 and 5, left undecided and now the subject 
of discussion in this brief, follow :

4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment
(a) would a decree necessarily follow providing that, 

within the limits set by normal geographic school 
districting, Negro children should forthwith be 
admitted to schools of their choice, or

(b) may this Court, in the exercise of its equity 
powers, permit an effective gradual adjustment 
to be brought about from existing segregated 
systems to a system not based on color distinc­
tions ?

5. On the assumption on which question 4(a) and (b) 
are based, and assuming further that this Court will 
exercise its equity powers to the end described in 
question 4(fc),

(a) should this Court formulate detailed decrees in 
these cases;



3

(b) if eo, what specific issues should the decrees 
reach;

(c) should this Court appoint a special master to 
hear evidence with a view to recommending 
specific terms for such decrees;

(d) should this Court remand to the courts of first 
instance with directions to frame decrees in 
these cases, and if so, what general directions 
should the decrees of this Court include and 
what procedures should the courts of first 
instance follow in arriving at the specific terms 
of more detailed decrees?

Developments in These Cases Since the Last Argument 

The Kansas Case

On September 3,1953, the Topeka School Board adopted 
the following resolution:

Be it resolved that it is the policy of the Topeka 
Board of Education to terminate the maintenance 
of segregation in the elementary schools as rapidly 
as is practicable.

On September 8, 1953, appellees ordered segregation 
terminated in two of the nineteen school districts in Topeka. 
In September, 1954, segregation was completely terminated 
in ten other school districts and partially in two.

There is now a total school enrollment of approximately 
8,500 children of elementary school age attending 23 ele­
mentary schools. Of the 8,500 children enrolled, approxi­
mately 700 Negro children are in four elementary schools 
for Negroes. There are 123 Negro children now attend­
ing schools on anon-segregated basis pursuant to appellees’ 
implementation of its policy of removing segregation 
from the public school system. The blunt truth is that



4

85% of the Negro children in Topeka’s elementary schools 
are still being denied the constitutional rights for which 
appellants sought redress in their original action.

While Topeka has been effectuating its plan, several 
other cities of the first class have undertaken the abolition 
of segregated schools. Lawrence and Pittsburg have 
completely desegregated. Kansas City, Abilene, Leaven­
worth and Parsons have ordered partial desegregation. 
Wichita and Salma have revised their school regulations 
to permit Negro children to attend schools nearest their 
homes. Only Coffeeville and Fort Scott have not taken 
any affirmative action whatsoever.

The Delaware Case

By order of the Court of Chancery, affirmed by the 
Supreme Court of Delaware, the named plaintiffs were 
immediately admitted to the schools to which they applied. 
These plaintiffs and other members of the class are in their 
third year of uninterrupted attendance in the two Dela­
ware schools named in the order. That attendance has 
been marked by no untoward incident. The order, how­
ever, did not result in elimination of separate schools for 
Negroes in the two school districts involved, in each of 
which one segregated elementary school is yet maintained 
by petitioners.

The State Board of Education has statutory authority 
to “ exercise general control and supervision over the 
public schools of the State, including . . .  the determination 
of the educational policies of the State and the seeking 
in every way to direct and develop public sentiment in 
support of public education.”  D e law ar e  C ode, Title 14, 
Section 121 (1953). Accordingly, the State Board of Edu­
cation, on June 11, 1954, adopted a statement of “ Policies 
Regarding Desegregation of Schools of the State”  and 
announced “ a general policy”  that it “ intends to carry



5

out the mandates of the United States Supreme Court de­
cision as expeditiously as possible.”  It further requested 
that “ the school authorities together with interested citizen 
groups throughout the State should take immediate steps 
to hold discussions for the purpose of (1) formulating 
plans for desegregation in their respective districts and 
(2) presenting said plans to the State Board of Education 
for review.”

On August 19, 1954, the State Board of Education re­
quested “ that all schools, maintaining four or more 
teachers, present a tentative plan for desegregation in their 
area on or before October 1, 1954 . ”

The desegregation plans of the Claymont Board of Edu­
cation, whose members are petitioners here, providing for 
the complete termination of segregation, were approved 
by the State Board of Education on August 26, 1954. These 
plans have been partially put into operation.

No plan ending segregation in the Hockessin schools, 
the other Delaware area in the litigation here, has yet been 
formulated.

Delaware statutes provide for two types of public 
school districts, exclusive of the public school system in 
Wilmington which is practically autonomous. One type is 
commonly known as the State Board District. As to 
it, the statute provides that the “ Board of School Trustees 
shall be the representative in the District of the State 
Board of Education.”  D elaw ab e  C ode, Title 14, Section 
702 (1953). There are 98 such units. The other type is the 
Special School District, concerning which the statute pro­
vides that “ There shall be a Board of Education which 
shall be responsible for the general administration and 
supervision of the free public schools and educational in­
terests of the District.”  D elaw ar e  C ode, Title 14, Section 
902 (1953). There are fifteen Special School Districts.



6

Desegregation in the school districts of Delaware is 
illustrated by the table below:

S ta te  B oard D istricts

Partial Complete No
Desegregation Desegregation Desegregation Total

New Castle County .. 4 1 26 31
Kent County ............ 0 0 24 24
Sussex County ........ 0 0 43 43

98

S p e c ia l  S c h o o l  D istr icts

Partial Complete No
Desegregation Desegregation Desegregation Total

New Castle County . . 3 1 1 5
Kent County ............ . 1 0 3 4
Sussex County * . . . . . 0 0 6 6

15

Wilmington, which is in New Castle County and con­
tains 34% of the population of the State, in June desegre­
gated all elementary and secondary schools for the 1954 
summer session. It has also completely desegregated its 
night school sessions. Beginning in September, 1954, de­
segregation of all elementary schools was effectuated, with 
some integration of teachers.

* Partial desegregation, that is, on the high school level, was insti­
tuted by the Milford Board of Education, in Sussex County. This 
action was later revoked and a test of the revocation is now pend­
ing in the Delaware courts. See Simmons v. Steiner, 108 A. 2d 173 
(Del. Ct. Chanc. 1954). In that case the Vice-Chancellor found the 
Negro plaintiffs’ rights to remain as students in Milford High 
School “ clear and convincing” and restrained the Board of Educa­
tion from excluding them. However, the Supreme Court of Dela­
ware temporarily stayed the injunction to give that court sufficient 
time to examine “ serious questions of law.” Argument has been 
scheduled for December 13, 1954. Steiner v. Simmons (Del. Sup 
Ct. No. 27, 1954).



7

The school districts involved in this litigation also are 
in New Castle County, which has 68% of the State’s popu­
lation. Desegregation in varying degrees has started in 
every major school district in this county, except one.

The State Board of Education has made specific re­
quests to 58 of the 113 school districts in the State to 
submit such plans. Another six districts have stated that 
any kind of plan they may have would be more or less 
nullified by overcrowded classroom conditions. Fourteen 
others have indicated that they desire to await the man­
date of this Court. The remaining districts have not re­
sponded to the State Board.

In summary, school districts in areas comprising more 
than 50% of the population of Delaware have undertaken 
some desegregation of the public schools. Many school 
districts in semi-urban and rural areas have undertaken 
no step. The ultimate responsibility for effectuating- de­
segregation throughout Delaware rests with petitioners 
here, members of the State Board of Education.

The South Carolina Case

Since May 17, 1954, South Carolina’s fifteen-man legis­
lative “ Segregation Study Committee”  was reorganized 
and has conferred with the Governor, State education offi­
cials, other legislators and spokesmen from various civic 
and teacher organizations. All of their meetings have 
been closed to the public. The Committee also visited 
Louisiana and Mississippi “ to observe what was being 
done in those states to preserve segregated schools.”

On July 28, the committee issued an interim report 
which recommended that public schools be operated during 
the coming year “ in keeping with previously established 
policy.”  The committee construed its assignment as being 
the formulation of courses of action whereby the State 
could continue public education “ without unfortunate dis­
ruption by outside forces and influences which have no



8

knowledge of recent progress and no understanding of the 
problems of the present and future. . . . ”  Moreover, the 
report stated that the committee also recognized “ the need 
for a system in keeping with public opinion and established 
traditions and living patterns.”

The State Attorney General insisted that this Court 
should not undertake to direct further action even by 
the school district involved and announced that he con­
sidered the Clarendon County case “ purely a local matter 
as far as the parties to the suit are concerned.”

In Rock Hill (population 25,000 with 20% Negroes) a 
Catholic grade school voluntarily desegregated. Opening 
day enrollment was 29 white students and five Negroes. 
There has been no report of overt action against this 
development; but the parents of some of the children have 
been remonstrated with by neighbors and workers.1

A newspaper reportla of a public speech of E. B. Mc­
Cord, one of the appellees herein, superintendent of educa­
tion for Clarendon County, states in part:

There will be no mixed schools in Clarendon 
County as long as there is any possible way for 
present leadership to prevent them.

So declared L. B. McCord of Manning, Claren­
don County superintendent of education, in an ad­
dress before the Lions Club here Monday night.

Decrying the fact that “ Our churches seem to 
be letting their zeal run away in leading the way,”  
he denounced de-segregation as contrary to the 
Scriptures and to good sense.

The Virginia Case

On May 27, 1954, the State Board of Education advised 
city and county school boards to continue segregation dur­
ing the present school year.

1 Southern School News, Sept. 3, 1954, p. 12, col. 3-4.
la Charleston News and Courier, August 4, 1954.



9

On August 28, the Governor named a thirty-two-man, 
all-white legislative commission to study the problems 
raised by the Court’s ruling and to prepare a report and 
recommendations to the legislature and to him. The Gov­
ernor then announced:

. . .  I am inviting the commission to ascertain, 
through public hearings and such other means as 
appear appropriate, the wishes of the people of 
Virginia; to give careful study to plans or legisla­
tion or both, that should be considered for adoption 
in Virginia after the final decree of the Court is 
entered, and to offer such other recommendations 
as it may deem proper as a result of the decision of 
the Supreme Court affecting the public schools.2

At its first meeting the commission adopted a rule 
that:

All meetings of the commission shall be execu­
tive and its deliberations confidential, except when 
the meeting consists of a public hearing or it is 
otherwise expressly decided by the commission.3

By October, the local school boards or boards of super­
visors of approximately 25 of the state’s 98 counties had 
adopted and forwarded to the Governor resolutions urging 
the continuation of segregated schools.

In May, 1954, the Richmond Diocese of the Roman 
Catholic Church, which includes all but 6 of Virginia’s 
counties, announced that during the Fall of 1954, Negroes 
would for the first time be admitted to previously all-white 
Catholic parochial schools where there was no separate 
parochial school for Negroes. Approximately 40 Negro 
pupils of a total of 3,527 are enrolled in four hig’h and six

2 Southern School News, Sept. 3, 1954, p. 13, col. 5.
3 Southern School News, Oct. 1, 1954, p. 14, col. 2-3.



1 0

elementary parochial schools formerly attended only by 
white pupils. The Superintendent of the Biehmond Diocese 
states that integration in these schools “ has worked out 
magnificiently, without a ripple of discontent, . . .  . ”  4

ARGUMENT

I .

Answering Question 4: Only a Decree Requiring 
Desegregation as Quickly as Prerequisite Administra­
tive and Mechanical Procedures Can Be Completed 
Will Discharge Judicial Responsibility for the Vindica­
tion of the Constitutional Rights of W hich Appellants 
Are Being Deprived.

In the normal course of judicial procedure, this Court’s 
decision that racial segregation in public education is un­
constitutional would be effectuated by decrees forthwith en­
joining the continuation of that segregation. Indeed, in 
Sipuel v. Board of Regents, 332 U. S. 631, when effort was 
made to secure postponement of the enforcement of similar 
rights, this Court not only refused to delay action but 
accelerated the granting of relief by ordering its mandate 
to issue forthwith.

In practical effect, such disposition of this litigation 
would require immediate initiation of the administrative 
procedures prerequisite to desegregation, to be followed 
by the admission of the complaining children and others 
similarly situated to unsegregated schools at the beginning 
of the next academic term. This means that appellees 
will have had from May 17, 1954, to September, 1955, to 
complete whatever adjustments may be necessary.

4 Id. at p. 14, col. 5.



1 1

If appellees desire any postponement of relief beyond 
that date, the affirmative burden must be on them to state 
explicitly what they propose and to establish that the 
requested postponement has judicially cognizable advan­
tages greater than those inherent in the prompt vindication 
of appellants’ adjudicated constitutional rights. Moreover, 
when appellees seek to postpone the enjoyment of rights 
which are personal and present, Sweatt v. Painter, 339 
U. S. 629; Sipuel v. Board of Regents, 332 U. S. 631, 
that burden is particularly heavy. When the rights of 
school children are involved the burden is even greater. 
Each day relief is postponed is to the appellants # a day of 
serious and irreparable injury; for this Court has announced 
that segregation of Negroes in the public schools ‘ ‘ generates 
a feeling of inferiority as to their status in the community 
that may affect their hearts and minds in a way unlikely 
ever to be undone. . . . ”  And, time is of the essence be­
cause the period of public school attendance is short.

A. Aggrieved Parties Showing Denial of Consti­
tutional Rights in Analogous Situations Have 
Received Immediate Relief Despite Arguments 
For Delay More Persuasive Than Any Avail­
able Here.

Where a substantial constitutional right would be 
impaired by delay, this Court has refused to postpone 
injunctive relief even in the face of the gravest of public 
considerations suggested as justification therefor. In 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. 8. 579, 
this Court upheld the issuance of preliminary injunctions 
restraining the Government’s continued possession of steel 
mills seized under Presidential order intended to avoid a 
work stoppage that would imperil the national defense 
during the Korean conflict. The Government argued that 
even though the seizure might be unconstitutional, the

* As used in this Brief, “ appellants”  include the respondents in
No. 5.



1 2

public interest in uninterrupted production of essential 
war materials was superior to the owners ’ rights to the 
immediate return of their properties. It is significant that 
in the seven opinions filed no Justice saw any merit in this 
position. If equity could not appropriately exercise its 
broad discretion to withhold the immediate grant of relief 
in the Youngstown case, such a postponement must cer­
tainly be inappropriate in these cases where no comparable 
overriding consideration can be suggested.

Similarly in Ex parte Endo, 323 U. S. 283, this Court 
rejected the Government’s argument that hardship and 
disorder resulting from racial prejudice could justify delay 
in releasing the petitioner. There, the argument made by 
the Government to justify other than immediate relief was 
summarized in the Court’s opinion as follows (pp. 296-297):

It is argued that such a planned and orderly re­
location was essential to the success of the evacuation 
program; that but for such supervision there might 
have been a dangerously disorderly migration of 
unwanted people to unprepared communities; that 
unsupervised evacuation might have resulted in hard­
ship and disorder ; that the success of the evacuation 
program was thought to require the knowledge that 
the Federal government was maintaining control over 
the evacuated population except as the release of 
individuals could be effected consistently with their 
own peace and well-being and that of the nation; 
that although community hostility towards the 
evacuees has diminished, it has not disappeared and 
the continuing control of the Authority over the 
relocation process is essential to the success of the 
evacuation program. It is argued that supervised 
relocation, as the chosen method of terminating the 
evacuation, is the final step in the entire process and 
is a consequence of the first step taken. It is con­
ceded that appellant’s detention pending compliance 
with the leave regulations is not directly connected 
with the prevention of espionage and sabotage at 
the present time. But it is argued that Executive 
Order No. 9102 confers power to make regulations



13

necessary and proper for controlling situations 
created by the exercise of the powers expressly 
conferred for protection against espionage and sabo­
tage. The leave regulations are said to fall within 
that category.

In a unanimous decision, with the Court’s opinion by 
Mr. Justice Douglas and two concurring opinions, the 
Court held that the petitioner must be given her uncondi­
tional liberty because the detention was not permissible by 
either statutory or administrative authorization. Viewing 
the petitioner’s right as being in that “ sensitive area of 
rights specifically guaranteed by the Constitution”  (p. 
299), the Court rejected the Government’s contention that 
a continuation of its unlawful course of conduct was neces­
sary to avoid the harmful consequences which otherwise 
would follow.

It is true that in the Endo case the contention rejected 
was that an executive order (which on its face did not 
authorize the petitioner’s detention) ought to be extended 
by “ construction”  so as to entitle the Relocation Authority 
to delay the release of the petitioner until it felt that social 
conditions made it convenient and prudent to do so. In 
this case, the suggestion is that this Court, in the exercise 
of its equity powers, ought to withhold appellants’ con­
stitutional rights on closely similar grounds. But this 
is not a decisive distinction. If, as the Endo case held, 
the enjoyment of a constitutional right may not be deferred 
by a process of forced construction on the basis of 
factors closely similar to the ones at work in the instant 
case, then certainly this Court ought not to find in its 
equitable discretion a mandate or empowerment to obtain 
the same result.

In the Endo case, the national interest in time of war 
was present. In these cases, no such interest exists. Thus, 
there is even less basis for delaying the immediate enjoy­
ment of appellants’ rights.



14

Counsel have discovered no case wherein this Court 
has found a violation of a present constitutional right but 
has postponed relief on the representation by governmental 
officials that local mores and customs justify delay which 
might produce a more orderly transition.

It would be paradoxical indeed if, in the instant cases, 
it were decided for the first time that constitutional rights 
may be postponed because of anticipation of difficulties 
arising out of local feelings. These cases are brought to 
vindicate rights which, as a matter of common knowledge 
and legal experience, need, above all others, protection 
against local attitudes and patterns of behavior.5 6 They 
are brought, specifically, to uphold rights under the 
Fourteenth Amendment which are not to be qualified, sub­
stantively or remedially, by reference to local mores. On 
the contrary, the Fourteenth Amendment, on its face and 
as a matter of history, was designed for the very purpose 
of affording protection against local mores and customs, 
and Congress has implemented that design by providing 
redress against aggression under color of state laws, 
customs and usages. 28 U. S. C. § 1343; 42 U. 8. C. § 1983.

Surely, appellants’ rights are not to be enforced at a 
pace geared down to the very customs which the Four­
teenth Amendment and implementing federal laws were 
designed to combat.

Cases in which delays in enforcement of rights have been 
granted involve totally dissimilar considerations. Such cases 
generally deal with the abatement of nuisances, e.g., 
New Jersey v. New York, 283 U. S. 473; Wisconsin v. Illi­
nois, 278 U. S. 367; Arizona Copper Co. v. Gillespie, 230 
U. S. 46; Georgia v. Tennessee Copper Co., 206 U. S. 230; 
or with violations of the anti-trust laws, e.g., ScMne

5 In the instant cases, dark and uncertain prophecies as to antici­
pated community reactions to school desegregation are speculative 
at best.



15

Chain Theaters v. United States, 334 U. S. 110; United 
States v. National Lead Co., 332 U. S. 319; United States v. 
Crescent Amusement Co., 323 U. S. 173; Hartford-Empire 
Co. v. United States, 323 IT. 8. 386; United States v. Ameri­
can Tobacco Co., 221 IT. 8. 106; Standard Oil Go. of New 
Jersey v. United States, 221 IT. S. 1.

These cases are readily distinguishable, and are 
not precedents for the postponement of relief here. In 
the nuisance cases, the Court allowed the offending- parties 
time to comply because the granting of immediate relief 
would have caused great injury to the public or to the 
defendants with comparatively slight benefit to the plain­
tiffs. In the instant cases, a continuation of the unconsti­
tutional practice is as injurious to the welfare of our gov­
ernment as it is to the individual appellants.

In the anti-trust cases, delay could be granted without 
violence to individual rights simply because there were no 
individual rights on the plaintiff’s side. The suits were 
brought by the Government and the only interest which 
could have been prejudiced by the delays granted is the 
diffuse public interest in free competition. The delays 
granted in anti-trust cases rarely, if ever, permit the con­
tinuance of active wrongful conduct, but merely give time 
for dissolution and dissipation of the effects of past mis­
conduct. Obviously, these cases have nothing to do with 
ours.

It should be remembered that the rights involved in 
these cases are not only of importance to appellants and 
the class they represent, but are among the most important 
in our society. As this Court said on May 17th:

Today, education is perhaps the most im­
portant function of state and local governments. 
Compulsory school attendance laws and the great 
expenditures for education both demonstrate our



16

recognition of the importance of education to our 
democratic society. It is required in the perform­
ance of our most basic public responsibilities, even 
service in the armed forces. It is the very founda­
tion of good citizenship. Today it is a principal 
instrument in awakening the child to cultural values, 
in preparing him for later professional training, 
and in helping him to adjust normally to his en­
vironment. In these days, it is doubtful that any 
child may reasonably be expected to succeed in life 
if he is denied the opportunity of an education. 
Such an opportunity, where the state has under­
taken to provide it, is a right which must be made 
available to all on equal terms.

Neither the nuisance cases nor the anti-trust cases 
afford any support for delay in these cases. On the con­
trary, in cases more nearly analogous to the instant cases, 
this Court has held that the executive branch of the gov­
ernment could not justify the detention of wrongfully 
seized private property on the basis of a national economic 
crisis in the midst of the Korean conflict. Nor could the 
War Relocation Authority wrongfully detain a loyal 
American because of racial tension or threats of disorder. 
It follows that in these cases this Court should apply 
similar limitations to the judiciary in the exercise of its 
equity power when a request is made that it delay enjoy­
ment of personal rights on grounds of alleged expediency.

B. Empirical Data Negate Unsupported Specula­
tions That a Gradual Decree Would Bring 
About a More Effective Adjustment.

Obviously, we are not aware of what appellees will 
advance on further argument as reasons for postponing 
the enforcement of the rights here involved. Therefore, 
the only way we can discuss Question 4(b) is by conjecture 
in so far as reasons for postponement are concerned.



17

There is no basis for the assumption that gradual 
as opposed to immediate desegregation is the better, 
smoother or more “ effective”  mode of transition. On 
the contrary, there is an impressive body of evidence which 
supports the position that gradualism, far from facilitat­
ing the process, may actually make it more difficult; that, 
in fact, the problems of transition will be a good deal less 
complicated than might be forecast by appellees. Our 
submission is that this, like many wrongs, can be easiest 
and best undone, not by “ tapering o ff”  but by forthright 
action.

There is now substantial documented experience with 
desegregation in this country, in schools and elsewhere.6 
On the basis of this experience, it is possible to estimate 
with some accuracy the chances of various types of 
“ gradual”  plans for success in minimizing trouble during 
the period of transition.

Some plans have been tried involving a set “ deadline”  
without the specification of intervening steps to be taken. 
Where such plans have been tried, the tendency seems to 
have been to regard the deadline as the time when action 
is to be initiated rather than the time at which desegrega­
tion is to be accomplished. Since there exists no body 
of knowledge that is even helpful in selecting an optimum 
time at the end of which the situation may be expected 
to be better, the deadline date is necessarily arbitrary and 
hence may be needlessly remote.7

6 See A shmore, T he N egro and th e  Schools (1954) ; Cla rk ,
D esegregation : A n A ppraisal of th e  Evidence, 9 J. Social
I ssues 1-77 (1953); N ext Steps in  R acial D esegregation in  
E ducation , 23 J. N egro E d. 201-399 (1954).

See also R eport by th e  P resident’s Comm ittee  on E quality 
of O pportunity in  th e  A rmed F orces (1950).

7 A shmore, op .  tit .  supra note 6, at 70, 71, 79, 80; Clark , op . 

cit .  supra note 6, at 36, 45.



1 8

A species of the “ deadline”  type of plan attempts to 
prepare the public, through churches, radio and other 
agencies, for the impending change. It is altogether con­
jectural how successful such attempts might be in actually 
effecting change in attitude. The underlying assumption— 
that change in attitude must precede change in action— 
is itself at best a highly questionable one. There is a 
considerable body of evidence to indicate that attitude may 
itself be influenced by situation 8 and that, where the situa­
tion demands that an individual act as if he were not 
prejudiced, he will so act, despite the continuance, at least 
temporarily, of the prejudice.9 We submit that this Court 
can itself contribute to an effective and decisive change 
in attitude by insistence that the present unlawful situa­
tion be changed forthwith.

As to any sort of “ deadline”  plan, even assuming that 
community leaders make every effort to build community 
support for desegregation, experience shows that other 
forces in the community will use the time allowed to firm

8 Clark , op .  cit.  supra note 6, at 69-76.

9 K utner , W il k in s  and Y arrow , V erbal A ttitudes and 
O vert Behavior I nvolving R acial  P rejudice, 47 J. A bnormal 
and  Social P sy ch . 649-652 (1952); L a  P iere, A ttitudes vs. 
A ction , 13 Social F orces 230-237 (19 34 ) ; Saenger and G il ­
bert, Customer R eactions to th e  I ntegration of N egro 
Sales P ersonnel, 4 I n t . J. O pinion  and  A ttitudes R esearch 
57-76 (1950); D eutsch and Collins, I nterracial H ousing , 
A  P sychological Study of a  Social E xperim ent  (1951); 
C h e in , D eutsch , H y m a n  and Jahoda, Consistency and  I ncon­
sistency in  I ntergroup R elations, 5 J. Social I ssues 1-63 
(1949).



19

UP an(J build opposition.10 At least in South Carolina and 
Virginia, as well as in some other states affected by this 
decision, statements and action of governmental officials 
since May 17th demonstrate that they will not use the time 
allowed to build up community support for desegrega­
tion.11 Church groups and others in the South who are 
seeking to win community acceptance for the Court’s May

8 (cont.) A shmore, op. cit. supra note 6, at 42; New York Times, 
“ Mixed Schools Set in ‘Border’ States” , August 29, 1954, p. 88, 
col. 1-4; New York Times, “ New Mexico Town Quietly Ends Pupil 
Segregation Despite a Cleric” , August 31, 1954, p. 1, col. 3-4; R ose, 
Y ou Ca n ’t L egislate A gainst P rejudice— O r Can  Y o u ?, 9 
Comm on  Ground 61-67 (1949), reprinted in R ace P rejudice and 
D iscrim in atio n , (Rose ed. 1951); N ichols, Breakthrough  on 
th e  Color F ront (1954); M erton, W est and Jahoda, Social F ic­
tions and  Social Fa c t s : T he D ynam ics  of R ace R elations 
in  H illto w n , Colum bia  U niversity B ureau of A pplied Social 
R esearch (mimeographed); M erton, W est, Jahoda and Selden, 
Social P olicy and  Social R esearch in  H ousing, 7 J. Social 
I ssues, 132-140 (1951); M erton, T he  Social P sychology of 
H ousing (1948).

South as well as North, people’s actions and attitudes were 
changed not in advance of but after the admission of Negroes into 
organized baseball. See Clem ent , R acial I ntegration in  the  
F ield of Sports, 23 J. N egro Ed. 226-228 (1954). Objections to 
desegregation have generally been found to be greater before than 
after its accomplishment. Clark , op. cit. supra note 6, passim; Con­
ference R eport, A rizona Council for Civic U n ity  Conference 
on School Segregation (Phoenix, Arizona, June 2, 1951).

10 Clark , op. cit. supra note 6, at 43, 44; Brogan, T he  E mer­
son School— Co m m u n ity  P roblem, Gary , I n d ian a , B ureau of 
I ntercultural E ducation R eport (October 1947, mimeo­

graphed); T ipton , Co m m u n ity  in  Crisis 15-76 (1953).
11 For the latest example of this, see New York Times, “ 7 of 

South’s Governors Warn of ‘Dissensions’ in Curb on Bias— Avow 
Right of States to Control Public School Procedures— Six at Meet­
ing Refrain from Signing Statement” , November 14, 1954, p. 58, 
col. 4-5.



2 0

17th decision cannot be effective without the support of a 
forthwith decree from this Court.

Besides the “ deadline”  plans, various “ piecemeal”  
schemes have been suggested and tried. These seem to be 
inspired by the assumption that it is always easier and 
better to do something slowly and a little at a time than 
to do it all at once. As might be expected, it has appeared 
that the resistance of some people affected by such schemes 
is increased since they feel arbitrarily selected as experi­
mental animals. Other members in the community observe 
this reaction and in turn their anxieties are sharpened.12

Piecemeal desegregation of schools, on a class-by-class 
basis, tends to arouse feelings of the same kind 13 and these 
feelings are heightened by the intra-familial and intra­
school differences thus created.14 It would be hard to im­
agine any means better calculated to increase tension in 
regard to desegregation than to so arrange matters so that 
some children in a family were attending segregated and 
others unsegregated classes. Hardly more promising 
of harmony is the prospect of a school which is segregated 
in the upper parts and mixed in the lower.

When one looks at various “ gradual”  processes, the 
fact is that there is no convincing evidence which supports 
the theory that “ gradual”  desegregation is more “ effec­

12 T ipton , op. cit. supra note 11, at 42, 47, 57, 71 ; Clark , Some 
P rinciples R elated to th e  P roblem of D esegregation, 23 
J. N egro Ed. 343 (1954); Culver, R acial  D esegregation in  
Education in  I n d ian a , 23 J. N egro Ed. 300 (1954).

13 A shmore, op. cit. supra note 6, at 79, 80 ; Clark , D esegrega­
tion  : A n A ppraisal of th e  Evidence, op. cit. supra note 6, at 
36, 45.

14 Clark , E ffects of P rejudice and  D iscrim ination  on P er­
sonality D evelopments, M id-Century  W h ite  H ouse Confer­
ence on C hildren and  Y outh  (mimeographed, 1950).



2 1

tive ’ ’.lo * * * * * On the contrary, there is considerable evidence that 
the forthright way is a most effective way.16

The progress of desegregation in the Topeka schools is 
an example of gradualism based upon conjecture, fears and 
speculation regarding community opposition which might 
delay completion of desegregation forever. The desegrega­
tion plan adopted by the Topeka school authorities called 
for school desegregation first in the better residential areas 
of the city and desegregation followed in those areas where 
the smallest number of Negro children lived. There is little 
excuse for the school board’s not having already completed 
desegregation. Apparently either the fact that the school 
board, in order to complete the transition, may have to 
utilize one or more of the former schools for Negroes and

16 A shmore, op. tit. supra note 6, at 80:
Proponents of the gradual approach argue that it mini­

mizes public resistance to integration. But some school offi­
cials who have experienced it believe the reverse is true. A  
markedly gradual program, they contend, particularly one 
which involves the continued maintenance of some separate 
schools, invites opposition and allows time for it to be organ­
ized. Whatever the merit of this argument, the case histories 
clearly indicate a tendency for local political pressure to be 
applied by both sides when the question of integration is 
raised, and when policies remain unsettled for a protracted
period the pressures mount. One school board member in
Arizona privately expressed the wish that the state had gone 
all the way and made integration mandatory instead of
optional— thus giving the board something to point to as jus­
tification for its action.

16 Clark , op. tit. supra note 6, at 46, 47; W right, R acial  I nte­
gration in  th e  P ublic S chools of N ew  Jersey, 23 J. N egro E d. 
283 (1954); K nox , R acial  I ntegration in  th e  Schools of 
A rizona , N ew  M exico , and  K ansas, 23 J. N egro Ed. 291, 293 
(1954); Culver, R acial  D esegregation in  Education in  I ndi­
a n a , 23 J. N egro E d. 296, 300-302 (1954).



2 2

assign white children to them or the fact that it must now 
reassign some 700 Negro children to approximately seven 
former all-white schools, seems to present difficulties to 
appellees. One must remember that in Topeka there has 
been complete integration above the sixth grade for many 
years. The schools already desegregated have reported no 
difficulties. There can hardly be any basic resistance to 
nonsegregated schools in the habits or customs of the city’s 
populace. The elimination of the remnants of segregation 
throughout the city’s school system should be a simple 
matter.

No special public preparations involving teachers, par­
ents, students or the general public were made, nor were 
they necessary in advance of either the first or second step 
in the implementation of the Board’s decision to desegre­
gate the school system. Indeed, the Board of Education 
adopted the second step in January, 1954, and the only 
reports of what was involved were those published 
in the newspapers. Negro parents living in these terri­
tories were not notified by appellees regarding the change, 
but transferred their children to the schools in question on 
the basis of information provided in the newspapers. As 
far as the teachers in those schools were concerned, they 
were merely informed in the Spring of 1954 that their par­
ticular schools would be integrated in September. Thus, 
delay here cannot be based upon need for public orienta­
tion.

It should be pointed out that of the 23 public elementary 
•schools, there exists potential space for some additional 83 
classrooms of which 16 such potential classrooms are in 
the four schools to which the majority of the Negroes are 
now assigned. No claim can be made that the school system 
is overcrowded and unable to absorb the Negro and white 
children under a reorganization plan. There is no discern- 
able reason why all of the elementary schools of Topeka 
have not been desegregated.

As is pointed out in the Brief for Petitioners on Fur­
ther Reargument in Bolling v. Sharpe (No. 4, October



23

Term, 1954) the gradualist approach adopted by the Board 
of Education in Washington, D. C., produced confusion, 
hardship and unnecessary delay. Indeed, the operation of 
the “ Corning Plan”  has produced manifold problems in 
school administration which could have been avoided if the 
transition had been immediate. The argument that delay 
is more sound educationally has been shown to be without 
basis in fact in the operation of the District of Columbia 
plan— so conclusively, in fact, that the time schedule has 
been accelerated. The experience in the District argues 
for immediate action.

To suggest that this Court may properly mold its 
relief so as to serve whatever theories as to educational 
policy may be in vogue is to confuse its function with that 
of a school board, and to confuse the clear-cut constitutional 
issue in these cases with the situation in which a school 
board might find itself if it were unbound by constitutional 
requirements and were addressing itself to the policy 
problem of effecting desegregation in what seems to it the 
most desirable way. But even if a judgment as to the 
abstract desirability of gradualism could be supported by 
evidence, it is outside the province of this Court to balance 
the merely desirable against the adjudicated constitutional 
rights of appellants. The Constitution has prescribed the 
educational policy applicable to the issue tendered in this 
case, and this Court has no power, under the guise of a 
“ gradual”  decree, to select another.

We submit that there are various necessary admini­
strative factors which would make “ immediate”  relief as 
of tomorrow physically impossible. These include such 
factors as need for redistricting and the redistribution of 
teachers and pupils. Under the circumstances of this case, 
the Court ’s mandate will probably come down in the middle 
or near the close of the 1954 school term, and the decrees 
of the courts of first instance could not be put into effect un­
til September, 1955. Appellees would, therefore, have had 
from May 17, 1954, to September, 1955, to make necessary 
administrative changes.



24

I I .

Answering Question 5: If This Court Should De­
cide to Permit an “ Effective Gradual Adjustment” from 
Segregated School Systems to Systems Not Based on 
Color Distinctions, It Should Not Formulate Detailed 
Decrees but Should Remand These Cases to the Courts 
of First Instance with Specific Directions to Complete 
Desegregation by a Day Certain.

In 'answering Question 5, we are required to assume 
that this Court “ will exercise its equity powers to permit 
an effective gradual adjustment to be brought about from 
existing segregated systems to a system not based on color 
distinctions ’ ’ thereby refusing to hold that appellants were 
entitled to decrees providing that, “ within the limits set 
by normal geographic school districting, Negro children 
should forthwith be admitted to schools of their choice.”  
While we feel most strongly that this Court will not sub­
ordinate appellants’ constitutional rights to immediate 
relief to any plan for an “ effective gradual adjustment,”  
we must nevertheless assume the contrary for the purpose 
of answering Question 5.17

Question 5 assumes that there should be an “ effective 
gradual adjustment”  to a system of desegregated educa­

17 “ 5. On the assumption on which question 4 (a ) and ( b) are 
based, and assuming further that this Court will exercise its equity 
powers to the end described in question 4(b) ,

“ (a)  should this Court formulate detailed decrees in these cases; 
“ (b)  if so, what specific issues should the decrees reach;
“ ( c)  should this Court appoint a special master to hear evidence 

with a view to recommending specific terms for such decrees;
“ (d)  should this Court remand to the courts of first instance with 

directions to frame decrees in these cases, and if so, what general 
directions should the decrees of this Court include and what pro­
cedures should the courts of first instance follow in arriving at the 
specific terms of more detailed decrees?”



25

tion. We have certain difficulties with this formulation. 
We have already demonstrated that there is no reason to 
believe that any form of gradualism will be more effective 
than forthwith compliance. If, however, this Court deter­
mines upon a gradual decree, we then urge that, as a mini­
mum, certain safeguards must be embodied in that ‘ ‘ grad­
ual”  decree in order to render it as nearly “ effective”  as 
any decree can be which continues the injury being suf­
fered by these appellants as a consequence of the unconsti­
tutional practice here complained of.

Appellants assume that “ the great variety of local 
conditions” , to which the Court referred in its May 17th 
opinion, embraces only such educationally relevant factors 
as variations in administrative organization, physical 
facilities, school population and pupil redistribution, and 
does not include such judicially non-cognizable factors as 
need for community preparation, Ex Parte Endo, 323 U. S. 
283, and threats of racial hostility and violence, Buchanan 
v. War ley, 245 U. S. 60; Monk v. City of Birmingham., 185 
F. 2d 859 (C. A. 5th 1950), cert, denied, 341 IT. S. 940.

Further we assume that the word “ effective”  might be 
so construed that a plan contemplating desegregation after 
the lapse of many years could be called an “ effective 
gradual adjustment.”  For, whenever the change is in 
fact made, it results in a desegregated system. We do not 
understand that this type of adjustment would be “ effec­
tive”  within the meaning of Question 5 nor do we under­
take to answer it in this framework. Rather, we assume 
that under any circumstances, the question encompasses 
due consideration for the constitutional rights of each of 
these appellants and those presently in the class they repre­
sent to be free from enforced racial segregation in public 
education.

Ordinarily, the problem—the elimination of race as the 
criterion of admission to public schools—by its very nature 
would require only general dispositive directions by this 
Court. Even if the Court decides that the adjustment to



26

nonsegregated systems is to be gradual, no elaborate 
decree structure is essential at this stage of the proceed­
ings. In neither event would appellants now ask this 
Court, or any other court, to direct or supervise the details 
of operation of the local school systems. In either event, 
we would seek effective provisions assuring their opera­
tion—forthwith in the one instance and eventually in the 
other—in conformity with the Constitution.

These considerations suggest appellants’ answers to 
Question 5. Briefly stated, this Court should not formulate 
detailed decrees in these cases. It should not appoint a 
special master to hear evidence with a view to recommend­
ing specific terms for such decrees. It should remand these 
cases to the courts of first instance with directions to frame 
decrees incorporating certain provisions, hereinafter dis­
cussed, that appellants believe are calculated to make them 
as nearly effective as any gradual desegregation decree 
can be. The courts of first instance need only follow normal 
procedures in arriving at such additional provisions for 
such decrees as circumstances may warrant.

Declaratory Provisions

This Court should reiterate in the clearest possible 
language that segregation in public education is a denial 
of the equal protection of the laws. It should order that the 
decrees include a recital that constitutional and statutory 
provisions, and administrative and judicial pronounce­
ments, requiring or sanctioning segregated education afford 
no basis for the continued maintenance of segregation in 
public schools.

The important legal consequence of such declaratory 
provisions would be to obviate the real or imagined dilemma 
of some school officials who contend that, pending the 
issuance of injunctions against the continuation of segre­
gated education in their own systems, they are entitled 
or even obliged to carry out state policies the invalidity of



27

which this Court has already declared. The dilemma is 
well illustrated by the case of Steiner v. Simmons (Del. Sup. 
Ct. No. 27, 1954), pending in the Delaware Supreme Court, 
wherein plaintiffs are suing for readmission to M ilford’s 
high school from which, on September 30, 1954, they were 
expelled because they are Negroes. The Vice Chancellor 
granted the requested mandatory injunction, finding that 
plaintiffs had a constitutional right to readmission to 
school. The Delaware Supreme Court, however, granted a 
stay pending determination of the appeal on the basis of 
its preliminary conclusion that “ there are serious questions 
of law touching the existence of that legal right.”  18

This Court’s decision of May 17th put state authorities 
on notice that thereafter they could not wTith impunity

18 Cf. Burr v. Bd. of School Commrs. of Baltimore, Superior 
Court of Baltimore City, Oct. S, 1954 (unreported), in which case 
Judge James K. Cullen stated in part:

In the instant case this Court is asked to issue a writ 
of mandamus requiring these defendants, the School Board, 
to continue with its policy of segregation. This Court finds 
the Board of School Commissioners have exercised their dis­
cretion legally and in accordance with a final and enforceable 
holding and decision of the Supreme Court. Those cases were 
undoubtedly argued before the Supreme Court fully, and the 
views of every division of thought of our citizenry was un­
doubtedly presented to the Court; but the Court has spoken. 
Whether the individual agrees or disagrees with the finding, 
he is bound thereby so long as it remains the law of the land. 
The Court realizes the change and the difficulty some may 
have accepting the reality or the inevitable from the stand­
point of enforcement. W e live in a country where our rights 
and liberties have been protected under a system of laws 
which has withstood the test of time. W e must allow our­
selves to be governed by those laws, realizing there are many 
differences among our people. Respect for the law is of para­
mount importance. The law must be accepted. W e must all 
be forced to abide by it. W e can gain nothing by demonstra­
tions of violence except sorrow and possible destructions.



abrogate the constitutional rights of American children 
not to be segregated in public schools on the basis of race. 
This type of recital in the decree should foreclose further 
misunderstanding, real or pretended, of the principle of 
law that continuation of racial segregation in public educa­
tion is in direct violation of the Constitution— state con­
stitutions, statutes, custom or usage requiring such segrega­
tion to the contrary notwithstanding.

Time Provisions

We do not know what considerations may be presented 
by appellees to warrant gradualism. But whatever these 
considerations may be, appellants submit that any school 
plan embracing gradualism must safeguard against the 
gradual adjustment becoming an interminable one. There­
fore, appellants respectfully urge that this Court’s opinion 
and mandate also contain specific directions that any decree 
to be entered by a district court shall specify (1) that the 
process of desegregation be commenced immediately, (2) 
that appellees be required to file periodic reports to the 
courts of first instance, and (3) an outer time limit by 
which desegregation must be completed.

Even cases involving gradual decrees have required 
some amount of immediate compliance by the party under 
an obligation to remedy his wrongs to the extent physically 
possible.19 In Wisconsin v. Illinois, 281 U. S. 179, the 
Court said:

It already has been decided that the defendants 
are doing a wrong to the complainants, and that 
they must stop it. They must find out a way at their 
peril. We have only to consider what is possible 
if the state of Illinois devotes all its powers to

19 See Wisconsin v. Illinois, 281 U. S. 179; Arizona Copper Co. 
v. Gillespie, 230 U. S. 46; Georgia v. Tennessee Copper Co., 206 U. S. 
230; Westinghouse Air Brake Co. v. Great Northern Ry. Co., 86 
Fed. 132 (C. C. S. D. N. Y. 1898).



29

dealing with an exigency to the magnitude of which 
it seems not yet to have fully awaked. It can base 
no defenses upon difficulties that it has itself created. 
I f its Constitution stands in the way of prompt 
action, it must amend it or yield to an authority 
that is paramount to the state (p. 197).

# # #

1. On and after July 1, 1930,20 the defendants, 
the state of Illinois and the sanitary district of 
Chicago are enjoined from diverting any of the 
waters of the Great Lakes-St, Lawrence system or 
watershed through the Chicago drainage canal and 
its auxiliary channels or otherwise in excess of an 
annual average of 6,500 c.f.s. in addition to domestic 
pumpage (p. 201).

Considering the normal time consumed before the 
issuance of the mandate of this Court and the time for 
submission and preparation of decrees by the courts of 
first instance, decrees in these cases will not issue until 
after February, 1955—after the normal mid-term in most 
school systems. Thus, the school boards would have until 
September, 1955— sixteen months after the May 17th 
opinions—to change to a system not based on color dis­
tinctions. This time could very well be considered as 
necessarily incidental to any decision by this Court requir­
ing “ forthwith”  decrees by the courts of first instance.

Whatever the reasons for gradualism, there is no 
reason to believe that the process of transition would be 
more effective if further extended. Certainly, to indulge 
school authorities until September 1, 1956, to achieve de­
segregation would be generous in the extreme. Therefore, 
we submit that if the Court decides to grant further time, 
then the Court should direct that all decrees specify Sep­
tember, 1956, as the outside date by which desegregation 
must be accomplished. This would afford more than a year, 
in excess of the time necessary for administrative changes,

20 This opinion was rendered April 30, 1930.



30

to review and modify decisions in the light of lessons 
learned as these decisions are put into effect.

We submit that the decrees should contain no provision 
for extension of the fixed limit, whatever date may be fixed. 
Such a provision would be merely an invitation to pro­
crastinate.21

We further urge this Court to make it plain that the 
time for completion of the desegregation program will not 
depend upon the success or failure of interim activities. 
The decrees in the instant cases should accordingly provide 
that in the event the school authorities should for any 
reason fail to comply with the time limitation of the decree, 
Negro children should then be immediately admitted to the 
schools to which they apply.22

All states requiring segregated public education were 
by the May 17th decision of this Court put upon notice 
that segregated systems of public education are unconstitu­
tional. A decision granting appellees time for gradual 
adjustment should be so framed that no other state main­
taining such a system is lulled into a period of inaction and 
induced to merely await suit on the assumption that it will 
then be granted the same period of time after such suit is 
instituted.

21 A shm ore , T h e  N egro and  th e  Schools, 70-71 (1954); 
Culver, R acial  D esegregation in  E ducation in  I n d ian a , 23 J. 
N egro E d. 296-302 (1954).

22 See United States v. American Tobacco Co., 221 U. S. 106, 
where this Court directed the allowance of a period of six months, 
with leave to grant an additional sixty days if necessary, for activi­
ties dissolving an illegal monopoly and recreating out of its com­
ponents a new situation in harmony with the law, but further directed 
that if within this period a legally harmonious condition was not 
brought about, the lower court should give effect to the requirements 
of the Sherman Act.



31

Conclusion

Much of the opposition to forthwith desegregation does 
not truly rest on any theory that it is better to accom­
plish it gradually. In considerable part, if indeed not in 
the main, such opposition stems from a desire that de­
segregation not be undertaken at all. In consideration of 
the type of relief to be granted in any case, due considera­
tion must be given to the character of the right to be pro­
tected. Appellants here seek effective protection for 
adjudicated constitutional rights which are personal and 
present. Consideration of a plea for delay in enforcement 
of such rights must be preceded by a showing of clear legal 
precedent therefor and some public necessity of a gravity 
never as yet demonstrated.

There are no applicable legal precedents justifying a 
plea for delay. As a matter of fact, relevant legal prece­
dents preclude a valid plea for delay. And, an analysis 
of the non-legal materials relevant to the issue whether or 
not relief should be delayed in these cases shows that the 
process of gradual desegregation is at best no more effec­
tive than immediate desegregation.

W herefore, we respectfully submit that this Court 
should direct the issuance of decrees in each of these cases 
requiring desegregation by no later than September of 
1955.

CHARLES L. BLACK, JR„ 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN, 
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
DAVID E. PIN SKY,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1,

2, 3 and for Respondents in No. 5.



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