Sweatt v. Painter Brief Amici Curiae in Support of Respondent

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Supreme Court* of the United States
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O cto b er s T e rm , 1 9 4 9

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4 H E M A N  M A R IO N  S W E A T T ,  P etitio n er/
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T H E O P H IL U S  s h i c k e l  p a i n t e r , e t  a l .

On a Writ of Certiorari to the Supreme Court 
of the State of Texas.

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briI f  o f  T h e  s t a t e s  o f  Ja r k a n s a s , Fl o r i d a , Ge o r g i a , 
K EifrucK Y, L o u i s i a n a , M is s is s ip p i, n o r t h  Ca r o l i n a ,
OKLAHOMA, SOUTH CAROLINA, TENNESSEE and VIRGINIA, 

l  AMICI CURIAE IN  SUPPORT OF RESPONDENTS; '

%  Murray-

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Attorney G eneral of A rkansas  
< o r  the St£t^ of A rkansas
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Richard W:*- E rv in  
Attorney G eneral of F lo rida
Frank J. TLeintz 
Assistant A ttorney 'G enera l 

,^or the Stat^.of F lorida

4 Eugene Cook
Attorney Geineral o f G eorgia
ML H. B lackshear, Jr.
Assistant A ttorney General 

fo r  the State* of G eorgia

A; E. Fuiikr _
Attorney (General o f K entucky
hi: B. Hojlfield .
Assistant A ttorney General

fo r  the Com m onw ealth  of K entucky
>

B olivar B; K em p  f
Attorney Genel-al of Louisiana  

{fo r  the p tita  of Louisiana \

Gfreek L. Tice <
Attorney General of M ississippi 1

G eorge H . . E th ridge
A cting  A ttorney  General- 

fo r  the State o f M ississippi

H a rry  M cM ullan
Attorney General of N orth  Carolina
Ralph M oody
Assistant. A ttorney  G en era l " 

fo r  the State o f N orth  Carolina

M ac Q. W illiam son
Attorney  G eneral of Oklahoma^ 

fo r  the State o f O klahom a

John M. D aniel
Attorney  G eheral o f South Carolina  

fo r  the State o f South Carolina

R o y  H . B ee le r ' y
Attorney G eneral of Tennessee
W illia m  F . Bai;ry -
Solicitor General

fo r  the State of Tennessee

J. L in d sa y  A lm ond, J r i ,
Attorney  G enera l Of Virginia^.

W a lte r  E. R ogers.
Assistant A ttorney G en era l . '•

fo r  the C om m onw ealth  o f V irg in ia



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STATEMENT L * : ........................ ...................................................
A^-Purpose. and Scope o f this B r ie f.....................................
B .ilnterest o f these A m ic i Curiae............................1............

ARGUMENT .i.A...................... ..............................................
{. Equal-provisions fo r  both races in separate schools 
i  are necessary to m aintain public education and 
’( public .order in the State affected, and they do not
4 constitute d iscrim ination  ...................................... - ......
IJ. The constitu tionality  o f  separate equal schools has 
> been settled by previous decisions o f this Court,
y and th ey  should not be overru led  .............................

I l f .  The reasonableness o f t^e separate school law s has 
;i been sfettled by this Court, and the need th ere fo r is 
? a question fo r  the States to decide. I f  this Court 
■f. ever goes behind State statutes to m ake a ju d ic ia l 
i  determ ination o f the reasonableness and need, it
’ should; not do so on this record ....................................

CONCLUSION ’ S ........................ -V-................................................
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f ■: A  P P E N D I X
Constitutional and Statutory Provisions Requiring Segrega­

tion in Public Education in Various States.......................
Alabama  -................................... ...........V
Arkansas ......................... ................................ ...... .........
Delaware ......................... -.......................... ........*...........
Florida .....  -...............................................
Georgia ....1..C........................ .................................... ..... ......
Kentucky ...................... ...................................... -..........
Louisiana ......................... .................................- -..........
Maryland ..........................— ............................ -.................
Mississippi ........................ \...............................................
Missouri -:L........................ - ...........................-....... -.........
North Caroliha ...................—i-................................... :..........
Oklahoma .............................. ...............................................
SoVith Carolina ................... ---.....................................-........
Tennessee .......................... ......................................... ......
Tetas ..... ! .J .......................-A..............................................
Virginia ......................... ...............................................
West Virginia ...................... ...............................................
District of Columbia ...........................................................

The N^gro: North and South ....;..............................................

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A U TH O R IT IES  C ITED
C AS E S  Pag*:
B arb ier v. Conolly, 113 U. S. 27; 28 L . ed. 923..................................  3£
B artem eyer v. Iow a, 18 W a ll 129; 21 L . ed. 929..............................  3L[
B erea C o llege v. K en tucky, 211 U. S. 45; 53 L . ed. 81................. 23t
C arter v. Texas, 177 U. S. 442; 44 L . ed. 839....................................  24-
Chesapeake & Ohio R y. Co. v. Kentucky, 179 U. S. 388; ;

45 L . ed. 244 ................“ .................................................. :.................  23;
Chiles v. Chesapeake & Ohio Ry., 218 U. S. 71; 54 L . ed. 936......... 23
C lark v. Board o f D irectors, 24 Iow a  266................................. ........  32
C om m onw ealth  v. W illiam son , 30 Leg . Int. (P a .) 406.,.... ............  31-
C ory v. Carter, 48 Ind. 327 ....................................... ............................  30.
Cum m ings v. R ichm ond County Board o f Education,

175 U. S. 528; 44 L . ed. 262 ......................................... -.................  20
Dallas v. Fosdick, 40 H ow . (N .Y .) Pr. 249 .............................. 22, 30
E x  Parte  V irg in ia , 100 U. S. 339; 25 L . ed. 676...........:............ 23, 2 f
F ish er v. Hurst, 333 U. S. 147; 92 L . ed. 604...................... 24, 25, 26
Gong Lu m  v. R ice, 275 U. S. 78; 72 L . ed. 172.................. 20, 28, 31
H a ll v. DeCuir, 95 U. S. 485; 24 L . ed. 547................................ 22, 3?
L ou isv ille  N.O. & T . R y . v. M ississippi, 133 U. S. 587; '

33 L. ed. 784 ............................ ..........................................................  22
McCabe v. A .T . & S.F. Ry., 235 U. S. 151; 59 L . ed. 169................... 23
M issouri ex re l Gaines v. Canada, 305 U. S. 337; v*

83 L . ed. 208 ................................................................. - .....-24, 25, 31
N ea l v. D elaware, 103 U. S. 370; 26 L . ed. 567.......................... 23, 2.4
N orris  v. A labam a, 294 U. S. 587 ; 79 L . ed. 1097..........................  24
Oyam a v. Californ ia, 332 U. S. 633; 92 L . ed. 249.....................25,
Patton  v. M ississippi, 332 U. S. 463; 92 L . ed. 76..............................  2({
P eop le  v. Gallagher, 93 N. Y . 438 ........................................................ 19
P eop le  v. Gaston, 13 Abb. (N .Y .) Pr. 160 .................................... 22, 31
P lessy  v. Ferguson, 163 U. S. 537; 41 L . ed. 256............. .18, 20, 28, 34
R oberts v. Boston, 5 Mass. 198 ...................................... :............ 22, 27
S helly  v. K raem er, 334 U. S. 1; 92 L . ed. 1161............ ;............. 25, 20-
Sim m ons v. A tlan tic  Greyhound, 75 F . Supp. 166......................... 12
S ipuel v. Board o f Regents, 332 U. S. 631; 92 L . ed. 247.24, 25, 2(5
South Carolina v. U n ited  States, 199 U. S. 437; 50 L . ed. 261....... 33
State v. Board  o f Education, 7 Ohio Dec. 129...............'.................  31-
State v. D uffy, 7 N ev . 342 ............................................................22, 31
Strauder v. W es t V irg in ia , 100 U. S. 303; 24 L . ed. 664...................
Takahash i v. F ish  and Game Com m ission, 334 U. S. 410;

92 L . ed. 1478 .................................................................. -............. 25, 2fl
W ard  v. F lood, 48 Cal. 36 .....................................................................  31
Y ick  W o  v. H opkins, 118 U. S. 356; 30 L . ed. 220.....................23, 24

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I  L  S T A T U T E S
V , v* ■; Page

Alabajna Code^of 1940, Ch. 52, Sec. 93 .............................................. 37
Arkansas Statutes, 1947 Annotated, A rt. 80, Sec. 509................. "{ 37
Civil R ights Act. o f 1866 .................................................... .....  22 35
Civil fligh ts A t t  o f 1870 ........... 1...................................... ............... 22! 35
('ivil fligh ts Afct. o f 1875 ........... ^............................. ........................29,' 35
Delaware Revised  Code, 1935, Ch. 71, Sec. 2631 ............. '................. ’ 38
District o f Columbia R evised  Statutes, 281, 283, 310, 319............... .. 21
District o f Columbia Code, T it le  31, Sec. 1110 ............................. . 46
Florid^ Statutes' 1941, Sec. 228.09 ................................. ................... ; 39
Georgia Code, 11933, Sec. 32-909 ............................ ........ ............... • J. 40
Kentucky Revised Statutes, Sec. 158-020 .................................... ...; 40
baws'Of Connecticut— 1835 p. 321 ..................................................... ; 27
baws o f Connecticut— 1868 p. 2Q6 ..................................................... ; 28
haws o f Illinois-*-! 846 p. 120 ............................ ........................ . ; 28
baws t>f Illinois-^-1874 p. 983  •;.......................................................... 28
l-aws of Indiana— 1869 p. 41  j . ...................................................... 28
baws <pf Iow a— 1858 p. 65 .......... ...........................................................  28
baws $ f Kansas-rr-1868 p. 146 ........................................................• 28
baws £>f M ich igan— 1871 p. 274 .;.......................................................... 28
baws $>f NevadarT-1864-1865 p. 426 .......................... ..:....................... . 28
baws t)f N ew  Jersey— 1881 p. 186 .................................. ............... 28
baws of N ew  Y o rk — 1864 p. 1281 .......................................................•: 28
baws 6f  Ohio, V o l. X L V I— 1847-1848 p. 81 ....................;.................  28
baws jpf Ohio, yb l. X L V I— 1848-1849 p. 17 ..........,...,.....„............. . 28
baws £f  Pennsylvan ia— 1854 p. 623 ..................................................  28
L-aws pf Pennsylvan ia— 1881 p. ] 76 ........................... ...................... ; 28
Maryland Annotated Code, 1939y-: Ch. 9, Sec. I l l  .......................41
Maryland Annotated Code, 1939, Ch. 18, Sec. 192 ....................... ;m 41
Mississippi Code, 1942, Annotated, Ch. 5, Sec. 6276   ................’ 42
Missouri R evised  Statutes, Sec. >10, 349 ............................ ............. {42
North-Carolina,‘General Statutes/Sec. 115-2,3 .................................. '43
Oklahoma Statutes Annotated, Oh. 15, Sec. 451 .......... ..... ............  44

_ Public-Law 254, 59th Congress, 1906 .......................... ................... .3 0
Revised Law s p i M innesota, 1905, Sec. 1403 .................................. : 28
Revised S ta tu teso f Ohio, 1880, Vol. 1, p. 1005 ................................  28
South ’Carolina- Code, Sec. 5377 ........................................................ 44
Tennessee Code, Sec. 2377 ........ ...........................................................  44
Vernofl’s Texa^-. Statutes, 1936, Ch. 19, A rt. 2900 ............................. 45
Virginia Code, A r t . 22, Sec. 221 4...................................... ;.............. — 45
West V irg in ia  Code o f 1943, Annotated, Sec. 1775 ......................• .45
12 Statii 407 .... ............................................................................................ , 30
20 Statj 107 ..................................... ........... ...................... .......... ’ * 30



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C O N STIT U T IO N A L PROVISIONS paf̂ ;
Constitu tion  o f A labam a, A rt. X IV , Sec. 256..................................
Constitution of D elaw are, A rt. X , Sec. 1, 2....................................
Constitution o f F lorida , A rt. X I I ,  Sec. 12.....................................  ‘ •
Constitution o f G eorgia, A rt. V I I I ,  Sec. 2-6601........... -.......... ^
Constitution o f K en tucky, Sec. ...................'................  4£
Constitution o f Louisiana, A rt. X I I ,  Sec. 1................. -...............
Constitution o f  Mississippi, A rt. V I I I ,  ^ ec- 207...........'................  ^
Constitution o f M issouri, A rt. X I ,  Sec. 3......... ................................. ^
Constitu tion  o f N orth  Carolina, A r c  IX , Sec. 2..............................  ^
Constitution o f Oklahom a, A rt. X I I I ,  Sec. 3 -----........................  ^
C onstitu tion  o f South Carolina, A rt. X I ,  Sec. 7........... -.................  ^
Constitution o f Tennessee, A rt. I I ,  Sec. 12...................................  ^
Constitution o f Texas, A rt. V I I ,  Sec. ...............................................
Constitution of United States, Amendment ^

X I V .........18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, M
Constitution o f V irg in ia , A rt. V I I ,  Sec. 140................. -.................  ^
Constitution of W es t V irg in ia , Sec. 8.............................

«

M I S C E L L A N E O U S  pa(V.
A lton  E ven in g  Te leg rap h  (A lton , 111.), February  5, 1950........ . T
B laine, “ 20 Years o f Congress,” (1886) ......................... ..................
Boyd, “ Educational H is to ry  o f the South Since 1865, 2fi.

Studies in Southern H is to ry  ................................... —...............
B r ie f o f Respondents in Opposition to P e tition  fo r  W r it  ^

o f Certiorari ..................................................................................... •
Congressional Globe, 42nd Congress, 2nd Session, p. 396 ^

(1866) .................................................................. ............ .r ...........  .
Congressional Record, 43rd Congress, 2nd Session, p. 10 j

(1868) ............................................................................... ’ ..................
Curry, “ B iograph ica l Sketch o f G eorge Peabody” ...... -.... -.........
D abnev “ Th e  H is to ry  o f Schools fo r N egroes in the D istrict 

o f Colum bia, 1870-1947,” Catholic U n ivers ity  o f A m erica
Press, (1939) ................................................................. ..............

East St. Lou is  Journal, Jan. 30, 1950 ............................ :......................v
“ H igh er Education  fo r  A m erican  D em ocracy,” A  R eport o f 

the P res iden t’s Com m ission on H igh er Education U. S. 
G overnm ent P r in tin g  Office, W ash ington , Dec., 1947.........4,

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I  *. : >:
Jacksofi, “ Th e deve lopm en t o f P erm iss ive  and P a r t ly  S egre­

gated Schools, Journal o f N egro  Education, V o l. 16................ .33
Life M agazine ,‘du ly  4, 1949 .......*>............................. :.... .. ................ "  : 7
Murray, “Th e  N egro  Handbook, V1949” ............................................ . 7
Myrdafc “ A n  A f r i c a n  D ilem m a” ................................. *................. . 7
“National S u rvgy-o f H igh er Education fo r  N egroes,” V o l. I I .....  12
New Ybrk T im es ! January 31, 1950 ..................................................  9
Pierce,^“ M em oirs' and Letters  of. Charles Sum ner,” (1893)..... .. .28
“Religion and Rage: B arriers  fo r  C ollege,”  Public A ffa irs  •

Pajnphlet Mo. 153 ................... ->.......................................*................. :47
Semi-Aiinual Reports on Schools and F inances o f Freedm en,

1866-1870, Ji W . A lvo rd  ....... ................................ ....... ... ........... ,- 28
Storey! “Charlete Sumner,” (1900) ......................... -.................. .-,28
The Saturday E ven in g  Post, January 24, 1948 ........................... _. -17
Time Magazine* Ju ly 11, 1949 ...4............................................... ........ •_ 8
"To S^pure Thes^ R igh ts,” T h e  R eport o f the P res iden t’s

Committee op  C iv il R igh ts ........................................................"  \14
Washington, “ U p  F rom  S la ve ry ’? .................................... .................  11
Woodson, “ The* Education o f the N egro  P r io r  to 1861,”

(1919) ....... ................................ * ............................... ........................  27

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Supreme Court of the United States
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O ctober T e rm , 1 9 4 9
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* H E M A N  M A R IO N  S W E A T T ,
v '• Petitioner,

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T H E O P H IL U S  S H IC K E L  P A IN T E R , E T  A L ,
Respondents.kw• . • • \

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Brief of; the States of A rk a n s a s , F lo r id a , G e o rg ia , 
Kentucky, L o u is ia n a , M iss iss ip p i, N orth  C a ro lin a , : 
Oklahom a, South C a ro lin a , T e n n e sse e  and  V irg in ia ,
Amici C u r ia e . *; *

• S T A T E M E N T
This b fie f is filed by the States of Arkansas, Florida, 

Georgia, Kentucky^, Louisiana, Mississippi, North Carolina, 
Oklahoma, South -'. Carolina, Tennessee, and V irg in ia  ih 
accordance w ith .Ride 27 of this Court.

The purpose Of this brief is to reply to the argument 
which is^being urged in this case by the petitioner and ; 
those organizations amici curiae supporting him, that this ' 
Court shduld reverse all of its form er decisions and declare 
invalid the provisions of the Constitutions and statutes of 
seventeen States-of the Union, as w ell as Acts of Congress' 
applicable in the District of Columbia, provid ing fo r sep 
urate butr'equal public educational facilities.



A. Purpose and Scope of the B r ie f  ' •

These States do not consider that it is appropriate to 
take sides in the litigation on the question o f fact whi<*h 
is, or was at one time, involved in the case as to the sub*-’ 
stantial equality o f the facilities provided at the law  schooj* 
in the State of Texas. Indeed, it is doubtful if the record 
in this case presents any fact issue which is not now moot' 
and beyond the necessity o f rev iew  by this Court. The de* 
term ination of equality o f the separate N egro  law  school 
was made by the State Courts upon evidence dealing wholly 
w ith  an interim  law  school which no longer exists. Since 
the trial, an entirely new and enlarged N egro  law school 
has been established in Texas and is available to petitioner* 
Except for petitioner’s contention that separate schools, 
even  if equal, should be held to be unconstitutional, nothing 
would remain fo r this Court to do but affirm or remaqd 
the case to the State Court for trial on the existing factsj 
Th is estimate of the situation is confirmed by the fact that 
petitioner grounds his whole appeal and most o f his brief 
on the contention that action of the States in furnishing 
separate schools fo r  w hite and N egro  students is violative, 
of the Fourteenth Am endm ent regardless of their degree 
of equality.

Therefore, this brief is to be confined to the basic con-* 
stitutional question which, after many decisions thereon 
by this Court and other Federal and State Courts, the 
petitioner and those organizations supporting him amic^ 
curiae, have again presented to this Court. W e  shall here 
be concerned on ly w ith  the question as to whether this 
Court should overru le a long-settled principle which vita lly  
and crucially affects the whole public school and higher 
educational systems of one-third of the States of the Union.-

B. In terest of These A m ic i  Curiae

Th is basic constitutional question is of v ita l importance: 
to the States herein represented. They have spent m illions 
of dollars in the establishment of separate school systems-



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;ind c$her institutions in accordance w ith  the previous 
Suprefne Courts decisions which petitioner seeks to have 
this dburt “ rev iew ” and “ overru le.” Petitioner does not 
limit Jjtis attacks to the Texas 'situation. He asks this Court 
to render a defcfeion which wbuld strike down the separate 

..schoot*laws o f a t least seventeen States and the Acts o f 
Congress as to the D istrict of Columbia.1

Theae States and their local political subdivisions pro­
vide ter separate grade schools, high schools, colleges, 
parks,y sw imm ihg pools, eleem osynary institutions, and 
other fiublic facilities in accordance w ith  laws and regula­
tions designed (1 ) to furnish equal opportunities, p r iv i­
leges, and services, and (2 ) at the same tim e protect the 
public- comfort,; peace, and order. Th e re lie f sought by 
petitiofier and supported by his amici curiae would declare 
all thebe regulatory measures; unconstitutional. A s  said in
the anfcicus curiae brief of the C.I.O.: ’■!*: *. :

<*. \ .. . ;•
^f'Every argum ent here advanced against the va lid ity  

of; the Texa^ constitutional requirem ent of segregated 
education.:is equally applicable to all other segregation 
b^sed on race differences^” (p. 8.) :

Petitioner argues that State maintenance o f separate pub­
lic facilities for members of the two races, even if equal in 
every •|,espect?: is unconstitutional. H e would destroy the 
long-repognized'police power o f the States to maintain the 
public order, peace, and safety of both races, by furnishing 
equal educational and recreational advantages under c ir­
cumstances which would preserve public support, and the 
comfort, peace, and happiness of both races.

To £&y that these Southern States are deeply concerned 
is statihg it but m ildly. The result of such a decision would 
be a tragedy t6 the public generally, both w hite and Negro, 
in the States concerned. Support for this position is found 
in the substantial m inority report made by the on ly mem-

These; constitutional provisions and laws are set out in the 
Appendix, p. 37. i



♦

bers of the President’s Commission on H igher Education-, 
who actually know the conditions in these States, as fob.

low s:

“ The undersigned wish to record their dissent fipm 
the Commission’s pronouncements on segregation-, 
especially as related to education in the South. .
W e believe that efforts toward these ends must, in the; 
South be made w ith in the established patterns of- 
socia l’ relationships, which require separate educa-* 
tional institutions for whites and Negroes. W e  believe 
that pronouncements such as those of the Commission 
on the question of segregation jeopardize these effoits* 
tapedeqprogress, and threaten tragedy to the people of; 
the South both w hite and Negro. . . . But a.doctrinaire; 
position which ignores the facts of history and the 
realities of the present is not one that w ill contnbut 
constructively to the solution o f difficult problems of. 
human relationships.”2 • ;

It  is difficult to conceive that this attack on the great 
body of law upon which the public educational systems 9I 
seventeen of our States and the District of Columbia is 
founded, w ill gain any support in this Court. Since the 
certiorari has been granted and the case set down for heal­
ing and argument we find that it is being urged that this 
Court has “ w rongly decided” and should “ reconsider and 
“ reverse” its w ell considered decisions upholding the righf 
of the States to furnish equal educational opportunities in
separate schools. - •

It  is said in the briefs that this Court should “ boldly? 
retrace its steps and give to the Fourteenth Amendment 
a new meaning, contrary to all contem porary as w ell as 
subsequent understanding of it. W e can w ell wonder if the 
brief-makers could not have more properly used the word

2/ M em bers s ign in g  this report w ere : A rth u r H ^C om pton  Chan­
ce llor W ash in gton  U n ivers ity , St. Lou is, Douglas S. *
FVlitor R ichm ond Tim es-D ispatch; L ew is  Jones, President, U 
ve rsh y  o f Arkansas; and Goodrich C. W h ite , President, Em ory 
U n ivers ity . V o lu m e II, “ H igh er Education  fo r  Am erican  Dem oy 
racy,” U. S. Gov. P r in tin g  Office, 1947, p. 29.



"recklessly”  in the argument they make to this Court. Thfcy 
seem tip assume that heretofore great judges and the courts 
upon which they served were unable to understand and 
properly constrde this fundamental law. They .would ignore 
the conditions bf life, the sentiment, thinking, and feelings, 
of this’* large segment of our population, w ith  which th^y 
are obviously unfamiliar, and futilely, we trust, attempt 
to change human relationships by getting this Court to 
adopt "a repudiated and doctrinaire construction o f the 
Fourteenth Amendment and infuse in it a meaning never 
embraced w ithin its scope, v

In the seventeen States in Which the systems of separate 
public’schools .are at stake, the decision in this case is o f 
serious: and grave concern. iNO more important and far 
reaching question has been presented to this Court in this 
generation. •• •

;  A R G U M E N T
1 • 1 i-

Equal-provisions for both ra c e s  in sep arate  scho o ls  
are ̂ necessary to m a in ta in  p ub lic  ed u catio n  and  

public order in the State  a ffe c te d , and  th ey  
s do not co n stitu te  d isc rim in a tio n .

The ^States herein represented recognize that in the 
operation of their public schools they must not discrim inate 
against,any individual, group,"Or race. They recognize that 
ns long;as it isinecessary in the interest of public order and 
safety for them , to separate children of the two faces in 
public Schools, the separate schools must offer equal facil­
ities sd;that eqiial educational opportunities are available 
to the total student population. This is required by their 
own laws as w e ll as by the Fourteenth Amendment. The^e 
States &ay that ’i t  may be th$.t their own laws have not 
always/foeen followed in this respect by their educational 
authorities and 'docal school districts. It  may be that in 
some instances; schools for Negroes have fallen below  the 
standards of schools maintained for whites. Y et in some



6 *■r

districts the reverse has been true. In  both cases the result- • 
ing discrim ination to the white or the Negro arises not ' 
from  the law itself, but from  a failure of the authorities to- 
administer the law as its terms require. In  either case the 
individuals affected are entitled to relie f through court".;, 
orders either (1 ) requiring improvements of the inferior ■ 
facilities, or (2 ) admission to the superior facilities. = ;

Thus, discrim ination is not im plicit in separate schools.-. 
I f  so, a ’ State could not constitutionally maintain separate: 
colleges for men and women. To  say that a college for.-. 
Negroes w ith  equal facilities and an equal number of equal-./ 
ly qualified Negro professors is unequal to a corresponding 
college for whites, is to brand the Negro race w ith aip. 
in feriority  to which these States do not subscribe.

Southern laws requiring separate schools apply equally; 
to Negroes and whites. Negroes are not “ segregated” any;-, 
more than the whites are “ segregated.” In  some States and. 
in many cities and school districts Negroes comprise the. 
m ajority group. The students are given  equal educational? 
opportunities in separate schools because these States have, 
determ ined that to be the only plan by which both public! 
education of their youth and the public support, harmony^ 
and order can be maintained.

Petitioner and his amici curiae beg the question when,; 
they argue that separate schools for Negroes and whites, 
even if equal, are discrim inatory and unconstitutional. If; 
they are equal, or substantially so, they are not discrimina­
tory. Th is is the whole premise upon which previous de­
cisions o f this Court approving separate equal facilities:, 
have been based. It  properly assumes that w ith  the same; 
physical facilities, a given number of Negro students and; 
Negro teachers can have a school offering educational 
opportunities equal to that of similar physical facilities 
occupied by the same number of white students and- 
teachers. ~

As heretofore stated, nothing but a belief in racial in­
feriority could compel one to doubt the possibility o f main­
taining equal separate schools. It  is safe to say that thi?



? V T»  t* ;
r  *  -

belief not held by petitioner, his amici curiae, these 
amici curiae, dfr 'this Court. Then of what does petitioner 
romplafci in the-' present system? Is it not a complaint 
against’!the lack?of personal contact and interm ingling df 
l he races socially in Southern, schools? Unfortunately, that 
seems to be the answer; and Unfortunately, that brings.us 
to the teal necessity for separate schools at this time if 
public ischoolsr and public order are to be maintained 
simultaneously; in these States. Petitioner would ignore 
and ask-this Court to destroy the police power of the States 
under which they meet the need for separatiop in public 
facilities in order to prevent racial conflict, strife, anti 
violence. But this power and the need of its exercise can­
not be ignored :‘i£. the fu ll scope of this case is to be under­
stood. •• ;• ? :

The fa c ia l yonsciousness and prejudices which exist 
today in the m.ipds of many people if regrettable and urt- 
justifiei, are a r e a lity  and must be dealt w ith  by States 
which, are required to furnish equality of educational 
opportunities and at the samevtime preserve harmony and 
peace between the two races ip their midst. This condition 
is not understood by many who do not live in it and vie'yv 
it fronvafar. B u i the possibility of its existence is beyond 
questiop even VI h the Northern States where there is no 
density,'of Negro popu lation ;’Therein  have occurred the 
Harlem, Chicago* and Detroit race riots.3 More recently, 
in St. Bouis, Missouri, on June;21, 1949, a public swimminjg 
pool w$s opened to both races. L ife  magazine for July 4,
1949, p&ges 30-<31, reported:

y v- v . „•
V . . . But-When the city opened all of its sw im m ing 

pools to Negroes on June; 21 for the first time in his- 
torfy, progress stopped. That afternoon police had tb 
escort 40 Negro sw im m ers’ through a wall of 200 sullep 
wlfites at :the Fairground Park pool. A fte r n ightfall 
bands of white hoodlums took off after any Negroes
found anywhere near the park, beating and kicking

--------
’ Myrdal, A n  Ahyerican D ilem m a, p. 56G; M urray, T h e  N e g ro  
Handbook, 1949/: pp. 108-110, 100-191.

r



K

them (opposite ). It  was 2 a.m. before police got things 
under control. M iraculously nobody was killed, but 15 
persons w ere hospitalized, 10 of them Negroes. It  was 
St. Lou is ’ first serious race riot, and it underscored 
the in flex ib ility of the color-line barrier dramatized bV 
the m ovie Lost Boundaries (pp. 64-66). M ayor Joseph 
Darst qu ickly took what for practical reasons w js 
perhaps the only possible action. Segregation was re­
stored to St. Louis sw im m ing pools.”

The same kind of thing happened when the races were 
mixed in public sw im m ing pools operated by the Depart­
ment of the In terior in W ashington, D. C. In  the issue of 
T im e magazine for July 11, 1949, on page 21 under a picture 
of the violence, the fo llow ing was reported under the heaeh 
ing “ Not Ready Y e t” :

■i •
>.

“ These pictures show what happened in the nation’?; 
capital last week when the In terior Department de­
cided to enforce a non-segregation policy in publir 
pools where only whites had swum before. The result 
was two days of small-scale rioting at the Anacosti/i 
pool, where 17-year-old Joan Sexton suffered twp 
broken toes under the hoofs of a park policeman’f  
mount ( le f t )  and eight other persons were injured iw 
a series of nasty scrapes which were broken up finally 
by police. An  In terior Department official blamed the 
rio ting on ‘Communist agitators,’ regretfu lly closed the 
pools, ‘until fu rther notice.’ ‘W ashington,’ observed thfc 
E ven ing  Star, ‘ is not ready for non-segregated swim? 
m ing.’ ”

In East St. Louis, Illinois, it was decided by the local 
Board of Education to have m ixed schools on January 3Cf, 
1950, after exercising their right to have separate schools 
for 85 years. About 100 Negro students enrolled in school's 
previously attended only by white children. T w o  while 
children transferred to a school which had been all Negro! 
A t one school there was a noticeable decrease in the number 
of white students. But police authorities even in that Nor* 
them  State anticipated violence. A ll police officers were 
assigned to 12-hour shifts, detectives changed to their-

8



*. a. f. / ;
uniforms, add as many as six men rode in one squad;car 
to g^ard against any outbreak on the first day of the ifite- 
gratron. Nine squad cars w ire  on duty, although normally 
ther^ are o fily  three in East St. Louis, and five cars from 
the $t Clair Cbunty sheriff’s, department stood by.4 V

Arki in Alton, Illinois, on January 23, 1950, 175 Negro 
students appeared at the white schools and attempted! to 
secure admission to the classrooms. The A lton  Eventing 
1 ele&raph, in its lead paragraph of the page-one-story said, 
An ;jair of tension prevailed throughout the A lton  School 

systejfii today :;as 175 Negrp students appeared at white 
schools and Sought admission . . . ” A fte r  presenting them- 
selveis at white: schools for three days, they returned to the 
schools provided for Negroes and brought suit to stop pay­
ment-of State funds to the A lton  School District. Various
forms of racial- disturbances followed.5* • *•

If t̂ hese conditions exist iiythe North, it should be under­
stood  ̂that thp^: may exist to a greater extent in the mbre 
heavily mixed population of . the South.

rh$ Southern States trust,:that this Court w ill not strike 
downUtheir po^wer to keep peace, order, and support1, of 
their public schools by maintaining equal separate facilities.
If the States ..ake shorn of this police power and physical 
ronfiijt takes- place, as in the St. Louis and W ashington 
Mvimrning popls, the States ape left w ith no alternative but 
to close their*, schools to prevent violence. The sw im m ing 
pools.^vere clpsed for that reason. However, because of this 
Courts previous decisions oh the constitutionality of equal 
separate facilities, the swim ihing pools in St. Louis were 
reopened on a separated basis. I f  these decisions are over­
ruled, dhe power to prevent conflict and violence in schools, 
pools,-..and other public facilities w ill be reduced to Cl)  
termination of the facilities or (2 ) continuation w ith  police
protection for ,the few  who elect to use the facilities. E ither
------------L  ‘ '.

♦'East r.St. Lou is .' Journal, Jan. 30, 1950; N ew  Y ork  T im es Jan 
;il. 1950. : ’ ;

,v Alton E ven in g  Telegraph , Feb. 5 through 8, 1950. ;

V



10

alternative would destroy the public school and recreational 
systems of the Southern States.

Petitioner and supporting amici curiae have completely 
ignored the realities and true reasons for separate educa­
tional facilities in the States, North  and South, Which find 
it necessary contrary to their assertions, segregation laws 
are not maintained upon any contention o f racial superior­
ity of the m ajority or m inority group. W h ite  citizens and 
students are not always in the majority. That is an idea 
which passed w ith  the last century and is heard o f now 
only in the opposing briefs. Nor are segregation laws based 
upon discrimination, prejudice, or hatred.

: *

i•* 4

: • *

It  can safely be said that there exists no desire to dis- • 
crim inate and no prejudice or hatred against Negroes in ';  
the minds of a large m ajority of white people in the South ' 
On the other hand, it must be admitted that there d o e s ; 
exist in the minds of m ajority segments of both whites and . ; 
Negroes an abiding prejudice against intimate social inter- 
m ingling of the two races. Experiences of the past have w 
left marks that no laws or court decisions can erase over- ’ 
night. It  is a mistake for any “ observer from  afar”  to as- : ' 
sume that prejudice and fear against “ crossing the color \ 
line”  in intimate social contact are lim ited to the Southern 
white man alone. They exist just as strongly in the average 
Negro man o f the South. Negro men do not want their*'.' 
daughters, w ives, and sweethearts dancing, dating, and * 
p laying w ith  white men any more than white men want . 
their wom en folk in intimate social contact w ith  Negro * 
men. “ W hite trash” is the hated name which Southern >' 
Negroes apply to white men who keep the company of- 
their wom en folk. W orse names are applied to Negro men''.;.' 
who “ cross the line.” The result in the South today is • 
almost universal antipathy toward intimate m ixed social: 
relationships. The results of the disregard of these circum-V 
stances in the past have been tragic to both races, physical- V 
ly, socially, and politically. Peace and order have been*.;* 
broken here as in St. Louis, Washington, Chicago, and;*. 
Detroit.

. V



Schoofe necessarily involve social contact. W ith  mixed' 
’.classes, recreation, dancing, games, and social relationships' 
being obnoxiou^ to a m ajority of both races, the Southern' 
States, v^th Suptfbfrie Court approval, have always attempt-' 
c.l to furbish the $ame facilities-and advantages to children 

’.of both traces in-'separate schools. ••
One cannot understand the problem of the State govern-, 

.nients uiitless her Is w illing to know and face the realities;- 
'.connected therewith. B rie fly  summarized, the Southern! 
.■States know thabintimate social.rcontact in the same schools’ 
.will leadjto w ithdrawal of public support of the schools, to^ 
physical -.and social conflicts, and to discontent and un- • 

•■hnppinesj? for both races. Yet the States are faced w ith  two : 
duties: ■: •"

•V .»* **

(1) JTo furnish equal educational opportunities to. their *’ 
youth, >̂Qth white and 'N egro ; and

(2) To  maintain the public'welfare, peace, safety, and t 
happines^'. for all their citizens, both w hite and ” 
Negro. .? \

Today &he States herein represented cannot accomplish 
b<rh of these objectives except by the maintenance of equal ' 
separate public facilities. I f  this is held to be unconstitu- : 
tional, th£ States. Will fail in one or both of these objectives. ■; 
Anything;to the contrary from those who ridicule this con* i 
dit ion frqm afar-,’ should be considered most carefu lly by 
this Court. They/rbay think they know our conditions or V 
that theyj can foboC an immediate change. On this point 
the Courttwould serve all concerned by listening to liberal 
and fair-minded then who have no prejudice but who have 
been in the South 'and know the conditions.0 The conclu- ", 
h<>ns of at’ few  of- them follow : :

I. Bool^er T. Washington, outstanding Negro educator 
•hid statesman, said in his Up Ft.om Slavery:

.<* • v
ly In ah things that are purely social we can be *
j- .

fl‘ As said py Booker T. W ash ington : “ As a rule, the place to  <
iTltielze th£ South, w hen  criticism  is necessary, is in the South—  t 
not in Boston.” Up .From S lavery , B ooker T. W ash ington , p. 201.



« '

12 '• t*•• t.

as separate as the fingers, yet one as the hand in all . j 
things essential to mutual progress.”  (p .222 ) .

“ The wisest among m y race understand that the \ 
agitation of questions of social equality is the extremesi U 
folly, and that progress in the enjoym ent of all privi- ' ‘ 
leges that w ill come to us must be the result of severe 
and constant struggle rather than of artificial fore- :•. 
ing . . (U p  F ro m  Slavery  p. 223)

2. Dr. Am brose Caliver, leading Negro educator and a - *
member o f the N .A.A.C .P., who was a specialist on educa­
tion of Negroes in the U. S. Office of Education, 1930 to : 
1945, and senior specialist in the higher education of Ne- 
groes since 1945:7 :

• %
•

“ . . . In  some of the States the mores of racial re- . \ 
lationships are such as to rule out, for the present at , / 
least, any possibility of adm itting w h ite persons and : 1 
Negroes to the same institutions. . . .”  (V o l. I I  Misc. . ; 
No. 6, p. 17, National Survey of H igh er Education  for •' 
Negroes) . j

3. Federal District Judge John Paul: ( S im m ons v. At- 
lantic Greyhound, 75 F. Supp. 166, 1947)

“ . . . No matter how much we m ay deplore it, the 
fact remains that racial prejudices and antagonisms 
do exist and that they are the source of m any unhappy ' 
episodes of violence between members o f the white %’ 
and colored races. I f  it is the purpose o f the defendant ' 
here to lessen the occasions for such conflicts by adop- ' .• 
tion of a rule for the separate seating o f whites anti •* •* 
colored passengers, this court cannot say that such a 
rule is purely arbitrary and w ithout reasonable basis.” '•

4. Dr. Benjam in F loyd  Pittenger, educated in the public ;•
schools of M ichigan, graduated from  M ich igan State Nor- /: 
mal and the U n iversity  o f Chicago, w ho taught in the / 
Michigan public schools, in the Universities o f Minnesota '• 
and Colorado, and became dean of the School o f Education 
of The U niversity of Texas (R . 319) said: >

7/W ho’s W h o  in  A m e rica  1950-51, p. 409. :*

• «



• ’ a
1 • ► *• • ; '• »

' 13; i
. . • * • *

“ h . . m y fundamental feeling (fo l. 536) about thes'
matter rests m what I conceive to be the effect o f the.
elirqination'; qjE segregation ' on the higher level upon 
segregation.qpon the lowe? level. . . .  I am unable toi 
see how  segregation could be constitutionally main-' 
tainfkl below-the college level and be unconstitutional: 
at the collegjq.’ level, and so.my feeling is that the— my- 
principal fear of the breakdown of segregation on the; 
higher level is what I conceive to be the breakdown," 
the Influence "upon segregation in the lower level . .

“ Kty judgement is that if Segregation were abandon-- 
ed ifl the lower level, that, it would become as a bo­
nanza to the p r iva te  white schools of the State, and 
that^it would mean the m igration out of the schools.-* 
and th e turning away from the public schools o f the', 
influence ahd": support of a; large number of children 
and of the parents of those children, and that those mi-.; 
grants and their parents are necessary because there 
would be additional tuition involved com ing from  a.. 
group of citizens who are the largest contributors to. 
the Cause of.public education, and whose financial and ; 
morail support is necessary for the continued progress , 
of public education.” (R . 325, 326) :

“ However' that question,;! have no means of know­
ing, but I think it is reasonable to believe that at the 1 
present timC the attitude of Texas people being w hat) 
it is^to a vdry considerable: degree, that the effect of\ 
the abandonment of segregation on the lower level 
would set back the public" school m ovem ent in this ■ 
state)'and asdne who has demoted his life to an attempt ; 
to improve it,; I can’t regard that w ith  equanimity. I f  . 
the teachers,; are not moved w ith  the students, then ) 
what' becomes* of the colored teaching profession in ’■ 
Texak?” ( R.,'327) • . •

«* vA . ** ;
• 5. Bi-Rjacial Conference on Education for Negroes in ) 

Texas, a committee composed of outstanding educators in 
Texas, including. Dr. J. J. Rhodes, Negro, President of ;• 
Bishop College; -.Dr. W . R. Banks, Negro, Principal of ' 
Prairie V iew  College; Dr. H. E. Dee, Negro; Dr. T. D. r 
!3rooks, Dean oP Graduate School, Texas A. & M.; Mrs. - 
Joe E. Wessendorf, past president of the Texas Parent ;

% 'j
■}. -



14

Teachers Association; and Dr. T. W . Currie of the Austin ? 
Theological Sem inary: (R . 323) :

“ Admission of Negroes to existing state universities : 
for whites is not acceptable as a solution of the prob-^ 
lem o f p rovid ing opportunity for graduate and pro* •; 
fessional study for Negroes, on two counts: (1 ) public.:; 
opinion would not permit such institutions to be open 
to Negroes at the present time; and (2 ) even if Negroes 
were admitted they would not be happy in the con­
ditions in which they would find themselves.” (Re-- 
spondents’ Original Exhibit 16, R. 322, 323) s ^

6. Southern Members of President Trum an’s Committee" 
on C iv il Rights, including Senator Frank P. Graham off. 
North Carolina, form erly President of the University of*; 
North Carolina and a liberal educator of national recogniU. 
tion liv ing in the midst o f this problem:

“ A  m inority of the committee favors the elimination? 
of segregation as an ultimate goal but . . . opposes' 
the imposition of a federal sanction. It  believes that, 
federal aid to states for education, health, research and* 
other public benefits should be granted provided that' 
the states do not discriminate in the distribution o f ' 
the funds. It  dissents, however, from the m ajority ’s, 
recommendation that the abolition o f segregation be*, 
made a requirement, until the people of the states in-, 
vo lved  have themselves abolished the provisions iiV 
their state constitutions and laws which now require, 
segregation. Some members are against the nonsegre-; 
gation requirement in educational grants on the ground,- 
that it represents federal control over education. They.) 
feel, moreover, that the best w ay to ultim ately end se-;‘ 
gregation is to raise the educational level of the people; 
in the states affected; and to inculcate both the teach-; 
ings of relig ion  regarding human brotherhood and the;- 
ideals of our democracy regarding freedom and equal-:, 
ity as a more solid basis for genuine and lasting accepT 
tance by the people of the states.”  (T o  Secure These.; 
Rights, pp. 166-167) "

See also the m inority report by Southern members oC 
President Trum an ’s Commission on H igher Education, 
quoted at page 4 supra, in which it was concluded: -



. . . -;We believe that efforts toward these ends 
mUst, in tpe South, be made w ith in the established 
patterns of'social relationships, which require separate 
educational* institutions fo r whites and Negroes. W e  
bqlieve that pronouncements such as those of the Com- 

’ mission Oh the question of segregation jeopardize these 
. efforts, impede progress, and threaten tragedy to the 

people of the South, both white and Negro.”  ±

It ishlso worthy of note that both Presidents Franklin  £>. 
Roosevelt andj. B arry S. Truman, outspoken foes o f racial 
discrimination aind inequalities, apparently recognized the 
realitidfe which require separate educational facilities in 
Southern States and that the. system was not discrim ina­
tory. Neither advocated abolition of the system. Th is ds 
especially significant in the case of President Trum an be­
cause he has . not submitted to  the Congress the recom­
mendation of the m ajority o f his C ivil R ights Committee 
as to n ixed  schopls. Since he is from Missouri, which main­
tains separate:.schools and cdlleges, it is possible that he 
understands the reasonableness of local determ ination to 
meet Ideal needs so long as the separate schools are equal.

As Heretofore-: shown, loss of the right to furnish equal 
educatfonal opportunities in separate schools would effec­
tively destroy ppblic education in many Southern States. 
This result would injure our Negro citizens as much if not 
more t^an our white citizens. Far more white people would 
be able-to send their children io  private schools and church 
schools! W ithout' segregation the developm ent o f the public 
school gystemsTo’f  these various States would have been ah 
impossibility. Th is would have been to the disadvantage 
of none; more th£n the Negroes. ■}.

The tremendous strides which have been made in bring­
ing about the equality of school facilities, teachers’ salaries, 
and an o th er needs of the schools in these, areas are dis­
closed in the records of these achievements. The fine and 
friendly relationships between the white and Negro  people 
of the South result from mutual respect for each other and 
a realistic understanding by two different racial groups,



16

l iv in g  side by side, o f the prob lem s in vo lv ed  in this;.

s ituation . • , ., . *
T h e  p e t it io n e r ’s con ten tion  in th is case, if upheld  by  this 

Court, w ou ld  not so lve  the prob lem . T o  suggest th a t by a- 
decis ion  in th is C ou rt our N eg ro  c itizen s  can be  b e n e  fitted., 
b y  Changing the estab lished law  o f th is cou n try  is u n reaK  
istic. In d eed  the reverse  o f  the resu lts sought w ou ld  nec-.

essa rily  fo llow . -
T o  illu s tra te  th is po in t— it m ay be stated that if the 

M eh a rry  M ed ica l School at N ash v ille , Tennessee, w h ich  is 
n ow  opera ted  on a separate basis fo r N egroes  w e re  dis­
con tinued , on ly  a sm all p ercen tage  o f the students there 
en ro lled  cou ld  ga in  adm ission  to the other m ed ica l colleges, 
or schools e v en  if  a ll such schools o f th is cou n try  w e ^  
operated  upon a n on -segrega ted  basis. A s  now  operated; 
th is in stitu tion  p ro v id es  fo r  m ed ica l education  fo r  abou 
650 students w h ose  serv ices  as doctors are g rea tly  needed 
in th is coun try. T h e  sta tem en t has been  m ade b y  those 
w e ll acqua in ted  w ith  the facts that upon discontinuance 
o f th is school on ly  a v e r y  sm all p ercen tage  o f the students, 
cou ld  possib ly  g e t a m ed ica l education   ̂e lsew h ere  T h is  «  
adm itted  by  p e tit ion er  in his A p p en d ix  to his B r ie f on 
C ertio ra r i, page x ii, in w h ich  he condem ns the quota 
system  o f N o rth e rn  colleges.

In  the many Negro colleges maintained throughout thfc 
South, students are trained for the teaching profession to 
be em ployed in our separate Negro schools and college.. 
I f  these separate institutions should be discontinued lh 
consequence of a decision of this Court, the result woulil 
be a real calam ity for Negro education in this country. 
Actual experience in Northern mixed colleges- shows that 
only a very  small number of Negro students are able do 
meet admission requirements. The Northern college quota 
system would lim it the admission of Negroes to less than 
10 per cent of the student body in Texas and other Southern



State|. Far njore than that rtumber now receive education 
in separate Colleges.8 *1

Th£ only 'iShlution is the continuance of the system 
which permitted public schools to be maintained origina lly 
in bqjth Northern and Southern States. The furnishing 
of equal educational privileges and opportunities to :;all 
through separate schools does not involve discrimination. 
If particular schools are unequal, proper relief-is available 
to th£ individuals affected/; I f  admittance to a separate 
grade! school :]dr university For whites is obtained by in ­
dividual NegrOes because of unequal facilities for their 
own Race, it jvlll be understood by those who are at fault. 
It will not cause a breakdown in public education generally. 
This is true because Southern people know and appreciate 
the fqct that N.bgroes are entitled to equal educational Op­
portunities, aind they w ill share w ithout conflict or resent­
ment-jthe result of any failure on their own part to provide 
equality. t '* f. '

On the other hand, the continued constitutionality of the 
separate system furnishes an: incentive to Southern States 
to provide rrtbre and better ‘ schools, especially in higher 
education, as the only way ; in which separation can .be 
maintained fohpeace, harmony, and the general welfares

Of the estim ated 75,000 N egroes in colleges in 1947, 85 per cent 
Were attending segregated schools and on ly 15 per cent w ere  in 
mixed schools. -R e lig ion  and liaise: B a rrie rs  F o r  College, Public 
AfTairsiPamphlet -No. 153. L ik ew ise , 85 per cent o f all N egro  doc­
tors arid 90 per cent o f all N egro  dentists are trained in separate 
schools! The Saturday E v e n in g  Post, January 24, 1948. T h e  opera­
tion ofrthe quota .system in the N orthern  colleges is exp la ined  An 
Higher}, E d u ca tion  fo r  A m e rica n  D em ocracy , A  R eport o f the 
President's Com m ission on H igh er Education, G overnm ent P r in t­
ing Office, 1947; p. 35. ; -



18

II.

T h e  co n stitu tio n a lity  of sep arate  eq ua l schoo ls has 
been settled  by previous d ecisio n s of th is  — 

C o u rt, and  they should not be 'y.
overru led .

Petitioner’s attack upon the decisions of this Court om • 
this extrem ely important principle proceeds upon the c.on-; ; 
tention that the decisions were based upon unconsidered: . 
action. It  is charged that the constitutionality o f separation; , 
of the races in equal facilities was not passed on by this 
Court. The mistake in this contention is evidenced by  ̂
petitioner’s later argument that these form er cases should.  ̂
be “ rev iew ed” and “ overruled.” An  examination of some* 
of these cases, reveals that the same constitutional question... 
was before the Court and that the opinions w ere well.;' 
considered. .

In  Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, the . 
constitutionality o f separation of the races in. intrastate’., 
public conveyances was in issue. Th is Court said: v \

“ The object of the (fourteenth ) amendment was., 
undoubtedly to enforce the absolute equality of the’ 
two races before the law, but in the nature of things it, ■ 
could not have been intended to abolish distinctions, 
based upon color, or to enforce social, as distinguished 
from  political equality, or a com m ingling of the two.- 
races upon terms unsatisfactory to either. . . . 3h(j.. 
most common instance of this is connected w ith the. 
establishment of separate schools for w hite and colored.’ 
children, which has been held to be a valid  exercise- 
of the legislative power even by courts of States where: 
political rights of the colored race have been longest- 
and most earnestly enforced.” (p. 544) • .

t

“ So far, then, as a con flic t w ith  the Fourteenth  
A m en d m en t is concerned, the case reduces itse lf to 
the question  w h eth er  the statute o f Lou is ian a  is «• 
reasonab le regu la tion , and w ith  respect to th is their 
m ust n ecessarily  be a la rge  d iscretion  on th e  part of



the legislature. In  determ ining the question of reason­
ableness It- is at liberty Uo act with reference to the 
established .'usages, custojns and traditions of the peo­
ple, and With a v iew  to The promotion of their com­
fort, and the preservation of the public peace and good 
order. Gauged by this standard, we cannot say that a 
laiiv which authorizes or even requires the separation 
oftthe two races in public-conveyances is unreasonable, 
or more obqoxious to the "^Fourteenth Amendment than 
the acts p i  Congress requiring separate schools fbr 
colored children in the District of Columbia, the consti­
tutionality of which does not seem to have been ques­
tioned, o r .the corresponding acts of state legislatures-'.”* * i

“W e consider the underlying fallacy of the p la in tiffs  
argument/tp consist in the assumption that the en­
forced separation of the two races stamps the colored 
race w ith  ahadge of in feriority. I f  this be so, it is not 
by* reason, ot anything found in the act, but solely be­
cause the colored race chooses to put that construction 
upon it. Thb argument necessarily assumes that if, ds 
has been more than once'the case, and is not unlikely 
to be so again, the colored race should become the dom­
inant pow er in the state legislature, and should enact .a 
law in precisely sim ilar terms, it would thereby rele­
gate the white race to an inferior position. W e  imagine 
that the white race, at least, would not acquiesce in 
this assumption. The argument also assumes that so­
cial prejudices may be overcome by legislation, and 
that equal -rights cannot be secured to the negro except 
bysan enfqtced com m ingling of the two races. W e  cap- 
noi accept this proposition. I f  the two races are tp 
meet upon terms of social equality, it must be the re­
sult of natural affinities, ahnutual appreciation of each 
other’s merits and a voluntary consent of individuals. 
As;was said.'by the Court; of Appeals o f N ew  York  in 
People v. Gallagher, 93 hi. Y. 438, 448, ‘this end can 
neither be-accomplished nor promoted by laws which 
conflict with- the general sentiment of the community 
uppn whom ’ they are designed to operate. W hen the 
government, therefore, has secured to each of its cit- 
izehs equal rights before the law and equal opportun­
ities for improvement and progress, it has accomplish­
ed ithe end. for which it was organized and performed 
all o f the functions respecting social advantages w ith 
which it is endowed.’ ” (pp. 550-551)



20

The dissenting opinion of Mr. Justice Harlan, in Plessy 
v. Ferguson, supra, is quoted and extensively relied upon 
in the briefs filed on behalf of the petitioner. Mr. Justice 
Harlan ’s later opinion in the case o f Cummings v. Rich-:, 
mond County Board of Education, 175 U. S. 528, 545 (1899); 
has been overlooked. There an injunction was brought tQ 
restrain the board from  maintaining a high school for white 
children w ithout maintaining one for Negro children. The 
Constitution of Georgia, which provided “  . . . separate 
schools shall be provided for the white and colored races'7 
was before this Court and quoted in its opinion. It  was 
held that the equitable re lie f sought was not a proper, 
remedy. In denying the re lie f Mr. Justice Harlan said:

“ Under the circumstances disclosed, we cannot sa^ 
that this action of the state court was, w ithin the mean­
ing o f the 14th Amendment, a denial by the state to 
the plaintiffs and to those associated w ith  them of the 
equal protection of the laws or of any privileges be7 
longing to them as citizens o f the United States. W e 
may add that w hile all admit that the benefits and bur­
dens of public taxation must be shared by citizens w ith­
out discrim ination against any class on account of theif 
race, the education of the people in schools maintained 
by state taxation is a matter belonging to the respective 
states, and any interference on the part of Federal 
authority w ith  the management o f such schools can 
not be justified except in the case of a clear and un­
mistakable disregard o f rights secured by the supreme 
law  of the land.”

Both of these opinions were cited by Mr. Chief Justice 
T a ft in w ritin g  the unanimous opinion in Gong L u m  v. 
Rice, 275 U. S. 78, 72 L. ed. 172 (1927). This was a suit for- 
entrance of a “ colored child” to the separate school for 
white children. Mississippi, unlike most States, had classi­
fied Chinese as a “ colored race.” The Mississippi constitu­
tional provision that “ separate schools shall be maintained 
for children of the white and colored races” is set out i.rt 
this Court’s opinion. This Court concluded:

i



• i i 21- . •.
/ ,  •i. *•. •. *•

“ The. question here is whether a Chinese citizen of 
fthe United States is denied equal protection o f the 
'laws when he is classed among the colored races' and 
’.'furnished facilities for education equal to that offered 
•to all, ^Whether white,: brown, yellow , or black. W ere  
'this a new question, it would call for very  fu ll argu- 
Unent and consideration, but we think that it ia the 
;same question which has been many times decided to 
.. be w ithin the constitutional power of the state legis­
la tu re  to  settle w ithout intervention of the federal 
^courts"under the Federal Constitution. . . .
% , ;
* “ In  fd^ssy v. Fergu^pn, . . .  in upholding the va lid ity
• under $hie 14th Am endm ent of a statute of Louisiana 
.requiring the separation of the white and colored races 
.‘ in railway coaches, a more difficult question than^this, 
“dhis court, speaking o f perm itted race separation, said:
** , ,
f “ ‘The. most common instance of this is connected
cwith the; establishment of separate schools for yffiite
‘{and colored children, which has been held to be a Valid 
'exercise o f the legislative power even by courts o f 
jstates where the political rights of the colored .race 
yhave been longest and most earnestly enforced.’ •
f > *

“ The. case of Roberts v. Boston, supra, in which 
'Chief Justice Shaw o f the supreme judicial coupt of 
^Massachusetts, announced the opinion of that dourt 
hipholdfng the separation of colored and white schools 
Amder a £tate constitutional injunction of equal pro- 
?tection/ the same as the 14th Amendment, was then 
preferred to, and this court continued: ;•

*
i. “ ‘Similar laws have been enacted by Congress ujider 
.its general power of legislation over the D istrict of 
'Columbia, D. C. Rev. Stat. §§ 281-283, 310, 319, as-well 
,as by the legislatures of many o f the states, and have 
T>een generally, if not uniform ly, sustained by'- the 
-courts’ . . citing many of the cases above named.

■t “ Most o f the cases cited arose, it is true, ovei{ the 
'•establishipent of separate schools as between white 
:-pupils and black pupii$, but we can not think that the 
vquestiojn. is any different or that any different result 
•can be reached, assuming the cases above cited to be 
^rightly decided, w here 'th e  issue is as between white

V :



22

pupils and the pupils of the yellow  races. The deci- 
sion is w ithin the discretion of the state in regu lating: • 
its public schools and does not conflict w ith  the 14th;'. 
Amendment. The judgment of the Supreme Court ofr. 
Mississippi is affirmed.” ; *

Since every  argument which is advanced by the peti- • 
tioner in this case is answered by the language of this *• 
Court, and is so com pletely responsive to the contentions ;- 
here made, we can do nothing more than to call the Court s ,.
a t t e n t io n  to  it. .

T h e s e  h o ld in g s  a re  in  h a rm o n y  w ith  o th e rs  o f  this-

Court:
In  H all v. DeCuir, 95 U. S. 485, 24 L. ed. 547 (.1877) the / 

reconstruction governm ent o f Louisiana enacted a statute , 
in 18G9 regarding rules of common carriers which contained;. • 
this clause: “ Provided said rules and regulations make no;.;, 
distinction on account of race or color . . . ” A  steamship-, 
master was convicted for rem oving a Negro from  a white..'*; 
cabin in accordance w ith  the ship’s rule separating the. • 
races. Th is Court held that the statute was void and that 
the master was free to make reasonable regulations. Mr.;.: 
Justice Clifford discusses at length (95 U. S. 504-506) th e ; 
analogy to school cases, citing cases decided before and 
im m ediately after the adoption of the Fourteenth Amend-1 : 
ment, holding that the maintenance of separate equal • 
schools was a matter which m ight be constitutionally de- _ 
cided by each State.9 In the same opinion on page 508 he ’ 
discusses the recently adopted Fourteenth Am endm ent and ; 
the Enforcem ent (C iv il R ights) Acts of 1866 and 1870;-' 
This contemporaneous construction is entitled to great 
weight. ;

Later cases upheld the separate coach laws of M ississippi'; 
and Kentucky as to intrastate commerce. Lou isv ille  N.O. & ■ 
T. Ry. v. Mississippi, 133 U. S. 587, 33 L. ed. 784 (1890); ;

9/ sta te  v. M cC ann, 21 Ohio St. 198 (1871); R oberts  v. B oston, 5 \ 
Mass. 198 (1849); State v. D uffy , 7 N ev . 342 (1872); C lark  v. Board  « 
of D ire c to rs , 24 Iow a  206 (1808); Dallas v. FosdicJc, 40 R ow . (N .Y.).?. 
Pr. 249 (1869); P eop le  v. Gaston, 13 Abb. (N .Y .) Pr. N.S. 160 (1869) •



Chesapeake Ohio Ry. Co. v. Kentucky, 179 U. S. 388, ''45 
L. edt'244 (1900). And the regulations of a private carrier 
separating the.Faces in interstate commerce were heldHo 
be reasonable ?and enforceable. Chiles v. Chesapeake. & 
Ohio fry., 218.V. S. 71, 54 F; ed. 93G (1910). . j

The', provisions of the Fourteenth Am endm ent w ere spe- 
oificaljy before this Court in McCabe v. A .T . & S.F\ Ry., 
235 U; S. 151^59 F. ed. 109 (1914). That was an actiom'to 
restrain the railroad defendants from making and distinc­
tion iif service bn account of trace. The points of error (get 
out iirthe report, 235 U. S. 152-150) were that the Oklahoma 
statute violated the equal protection clause; that it was 
an invalid exbrcise of the police power; and that the statute 
was discriminatory against tone class of persons, citing 
Yick iVo v. Hopkins, 118 U. S. 350, 30 F. ed. 220, E x  Pa fte  
Virginia, 100. U. S. 339, 25 L. ed. 070, Neal v. Delaware, 
103 LP(. S. 370,yZO F. ed. 507, Strauder v. West V irgin ia , TOO 
U. S. $03, 24 Jjt:ed. 004, and others here relied on by peti- 
tioner^and hi£ amici curiae. The Court below found:

;*“ 2. That it has been decided by this Court, so that 
the question could no longer be considered an open one, 
that it was not an infraction of the Fourteenth Am end­
ment forta^State to require separate, but equal accom­
modations-..for the two races. . . . ” >■ . •• .< ...

. >. . ••
Thi§ Court-said, “ In v iew  o f  the decisions of this court 

. . . there is no'heason to doubt the correctness of the . .
second . . . ofi-these conclusions.” (235 U. S. 100) •

> ■' ’• /■
Thi$ Court had separate school provisions before it again 

in Beiiea Coltepe v. Kentucky, 211 U. S. 45, 53 F. ed. '^1 
(1908f. A  Kentucky statute prohibited the teaching .o f 
white land Ne'gto students in the same school or college,- 
and penalties \vere attached for violation of the statute. 
The college, a private corporation, was convicted for v io la t­
ing the act. Mr. Justice Harlan, dissenting, pointed out 
that t^e trial court refused an instruction to the effect that 
the statute violated the Fourteenth Amendment. 211 U.;.:S. 
00. This Court ̂ upheld the conviction. The dissent of Mr.



24

Justice Harlan is particularly in form ative of his views as • 
to separate public schools. Berea College was a private-,.. 
corporation, not a public school. H e thought that a statute. 
making it unlaw ful to teach the races separately at a p r i ­
vate institution would be void. But he added,

•* 4

“ Of course what I have said has no reference to 
regulations prescribed for public schools, established • 
at, the pleasure of the State and maintained at public  ̂
expense.” 211 U. S. 69.

These principles were reaffirmed in Missouri (Gainesf u 
v. Canada, 305 U. S. 337, 83 L. ed. 308 (1938), an action to. 
compel the admission of a Negro to the U niversity of -. 
Missouri Law  School, which was then and is now maim • 
tained as a separate institution for white students. In a • 
decision in which Yick W o v. Hopkins, Supra, E x  Parte.^ 
Virgin ia  Supra, Neal v. Delaware Supra, Carter v. Texas, ■ 
177 U. S. 442, 44 L. ed. 839, N orris  v. Alabama, 294 U. S:. ; 
587, 79 L. ed. 1097, and other of petitioner’s cases werfe; 
discussed, this Court said w ith reference to the constitu-. 
t.ional provisions in question:

“ The State has sought to fu lfill that obligation by- 
furnishing equal facilities in separate schools, a method . 
the va lid ity  of which has been sustained by our de^ 
cisions.” 305 U. S. 344.

“ Th e adm issibility of laws separating the races ip; 
the enjoym ent o f privileges afforded by the State rests 
w holly  upon the equality of the privileges which the*- 
laws g ive  to the separate groups w ithin the State. 
Ibid. 349.

“ W e  are of the opinion . . . that petitioner was en­
titled to be admitted to the law school of the State- 
U niversity in  the absence of other and proper provu  
sion fo r  his legal tra in ing w ith in  the State.’'’ Ibid. 352. 
(Em phasis provided throughout.) V.

This doctrine was not departed from  in Sipuel v. Board: 
of Regents, 332 U. S. 631, 92 L. ed. 247 (1948) or Fisher 1>.;



•r

Hursf, 333 U. S. 147, 92 L. ed/;604 (1948). In the Sipuel case

v“The skate must provide it (education) for h e r ; (a 
Negro citizen ) in conform ity w ith the equal protection 
clause . . > as soon as it does for applicants of any other 
g£oup” /(White students ' < words in parentheses
abided.) >’ '
* *' " "v ■

An'S in th&. Fisher  case, the trial Court, after the Sipuel 
decision, instructed the school to 11) enroll the Negro with 
the \fchite students until a separate school is established, 
•or (2) not enroll any students until that time. I f  further 
ordered that if :a separate school was established, the Negro 
was hot to be 'enrolled in the white school. Th is Court re- 
fusecf;-to disturb the trial Court’s judgment.

We-content "ourselves w ith the declaration of this Court 
in th^se and other cases cited in the Texas brief, as much 
for tljje reasoning of these cases as for the conclusive nature 
of th?m upon 'the question >which the petitioner seeks' to 
revive. ;

In'^the petitioner’s brief the cases of Shelley v. Kraerher, 
334 U. S. 1, 92;L. ed. 1161 (1948), Oyama v. Calif or n ia , '332 
II. S.*fe33,l)2 jb; ed. 249 (1948) , Takahashi v. F ish  and Game 
ComTfiission, 334 U. S. 410, 92 L. ed. 1478 (1948) are cfted 
and Relied up>on w ith a contention that these cases indicate 
a trend of thought in this -Court which would lead it to 
overrule this; Court’s m a n y -former decisions on the ques­
tion of equal, separate public facilities.
" I f 'th e  seventeen States and the District o f Columbia 
prohibited Negroes from attending public schools, these 
cases-.would have some application. In the absence of such 
a prohibition, ‘ which does not and cannot exist, there is 
not the slightest analogy or precedent provided by these 
case^im favor, o f the petitioner. f

Restrictive covenants ( Shelley v. K raem er, supra)- in 
deed6 to real property do not profess to equalize for &ny 
racial,group the right to acquire property. On the contrary,



26

such covenants are for the purpose of excluding racial; : 
groups from  the acquisition of the property involved. ; ' 

Restrictions upon the right of a racial group to fish in. , 
the territorial waters of California ( Takahashi u. F ish  and . 
Game Commission, supra) did not purport to provide the.- 
Japanese separate but substantially equal facilities. The ; 
law provided only for their exclusion. ^

D iscrim inatory presumptions in California s A lien  Land^. 
Law  ( Oyama v. California, supra ) were totally unrelated- 
to the question discussed in this case.

An  examination of these cases discloses that none of * 
the justices of this Court considered that the established- . 
law of the United States as to separate but equal educa-j; , 
tional facilities was in any way, even by analogy, involved. 
This principle was not concerned and could not be so con-; 
sidered. They do not support those who now seek to foster 
a new doctrine on the country in utter disregard of the . 
chaos which would result therefrom. ,

In  like manner, the cases holding that long standing ' 
and systematic exclusion of Negroes from  juries is a vio la­
tion of constitutional rights ( Pa tton  v. Mississippi, 332 U. S,.' 
463, 92 L. ed. 76 (1947) and sim ilar cases) are entirely : 
inapplicable to this situation. I t  is one thing to exclude.- 
from ju ry service and quite another to furnish  equal educa- - 
tion in separate schools.

The contention that these decisions “ portend” action • 
favorable to petitioner by this Court in the instant case, isr . 
we trust, w ithout foundation. A ll of the so-called “ porten-^ • 
sion” cases are distinguishable from this Court’s continuous, 
line of decisions upholding the constitutionality of educa. ' 
tional systems which furnish equal privileges and oppor- • 
trinities to all in separate schools. The latter decisions more .' 
nearly resemble this Court’s recent actions in the S ip u e l ; 
and Fisher  cases rather than the Shelley, Takahashi, 
Oyama, and Strauder cases.

Petitioner contends that the long line o f decisions by . 
this Court, by other Federal Courts, and by the State Courts / 
are all wrong because their interpretation of the Fourteenth



A -
Amendment is contrary to ' the interpretation intended by 
the £ongre$S -and the people when it was submitted .and 
approved. Petitioner and his amici curiae would have-this 
Coutft believe that they nbw perceive the intent of ; the 
writers and^adopters of the Amendm ent more clearly than 
the ^Congressmen, Courts, and Legislatures which were 
comprised of rthose who voted upon the Am endm ent land 
whO’igave it contemporaneous interpretation.

Tfeere is ndthing in contemporary legislation or in Fed- 
eral>and State decisions which indicates any belie f --that 
the Fourteenth Am endm ent required mixed schools foi: all 
raceis, or that,it prohibited: the furnishing of equal educa­
tional privileges to all through separate schools. On-, the 
contrary, there is a great amount of contemporary con­
struction ahd interpretation which points only in 'one 
direction: that equality of;educational opportunities .may 
be furnished in separate schools for children of the white 
and-'Negro races when deemed necessary to preserve- the ; 
pubfic peace, .harmony, and welfare. :•

Before examining contemporary interpretation of-; the 
Amendment, proposed by Gongress in 1866 and ratified by 
two-thirds of., the States in 1868, a word should be ;said 
about the historical setting. It  is interesting to note >lhat 
separate schools for white; and Negro students had been 
established dri Northern States prior to the C ivil W ar.10 
In Massachusetts, the Stdte which furnished the most 
arddht advocates of freedom, equal protection, and t iv i l  
rights,11 an- equal protection clause in the State Constitu­
tion^ the sqjne as the Fourteenth Amendment, had been 
held; not to .prohibit the C ity of Boston from  maintaining 
separate schools for the white and Negro races,12 Similar 
separate systems w ere in effect when the Fourteenth 
Amendment -*was voted upon in: Connecticut (Law 's of

10/ The Educa tion  of the N e g ro  P r io r  to 1861, p. 18, Carter S. \fybod-
son, 1919. •• 7. ;
11/These included John Quincy Adams, Charles Sumner, H en ry
Wilson, G eorge S. B ou tw ell. \
' 2/ Roberts v\- JSoston, 5 Mass. 198 (1849) "



28

Conn., 1835, p. 321; separate schools abolished by Laws of v ; 
Conn., 1868, p. 206); Illinois (Law s of 111., 1846, p. 120; 
Id., 1874, p. 983); Indiana ( Laws o f Ind., 1869, p. 41); Iowa 
(L aw s  of Iowa, 1858, p. 65); Kansas (Law s of Kan., 1868, .... 
p. 146); M ichigan (abolished, Law s of Mich., 1871, p. 274); •;> 
Minnesota (abolished, Revised Laws, 1905, sec. 1403); 
Nevada (L aw s  of Nevada, 1864-65, p. 426); N ew  Jersey".. 
(L a w s  of N ew  Jersey, 1881, p. 186); N ew  York  (Law s of 
New  York, 1864, p. 1281); Ohio (Law s of Ohio, Vol. X L V I, 
1847-8, p. 81; Id. 1848-49, p. 17; Revised Stats., 1880, Vol. I, • * 
p. 1005); Pennsylvania (Law s of Pa., 1854, p. 623; Id. 1881, A 
p. 76). They continued in operation after the Amendment 
was adopted, were upheld by State courts,13 cited with .‘ . 
approval by the Supreme Court,14 and ended only when the -• 
people of those States determined that conditions were . ; 
ready for the change.15 *

A fter the C ivil W ar, the Federal Government, through 
the Freedm en ’s Bureau of the W ar Department, established •. * 
the first schools in the South in which Negroes were taught. 
These ivere separate schools exclusively fo r N egroes.10

During the reconstruction era when many bills were en-,J 
acted which were considered by Southern people as “ Force ' ; 
B ills,” no legislation was adopted by Congress which at--., 
tempted to compel the m ixture of the races in the public'-/ 
schools or colleges of this country, although it was many ' 
times proposed and defeated.17

The Fourteenth Amendment was declared to be duly •.

13/ B r ie f o f Respondents in Opposition to P e tit ion  fo r  W r it  of ' 
C ertiorari, Append ix , pp. 74-85.
14/ p iessy v. F e rgu son ,  163 U. S. 537, 41 L . ed. 256 (1896); H all v. ': 
D eC u ir ,  95 U. S. 485, 24 L. ed. 547 (1877); Gong L,um v. R ice , 275 
U. S. 78, 72 L . ed. 172 (1937).
f >/ N ew  York , 1909; N ew  Jersey, 1948; M ichigan, 1871.
'<*/ Sem i-Annual R eports  on Schools and F inances o f Freedmen,. 
1866-1870, J. W . A lvo rd .
17/ Cong. Globe, 42nd Cong., 2nd Sess., p. 396 (1866); J. G. Blaine, ' 
T w en ty  Years o f Congress  (1886) p. 514 et seq.; P ierce, Mem oirs- ’ 
and L e t te rs  of Charles S u m n er  (1893) pp. 72 and 179 et seq.; 
S torey, Charles S u m n e r  (1900) p. 402 et seq.



T ,r\ . . . .
ratified on July 28, 1868. Contemporaneous construction of 
the Amendment by the adopting States was almost unani­
mous, that it >permitted continuation of separate ecfual 
schools for W hite and Negro students. Many Northern 
Stated retained statutory or constitutional provisions .au­
thorising or ̂ requiring school districts to provide separate 
schools: e.g.^djlinois, Indiana, Kansas, Nevada, N ew  Jersey, 
New-^York, Ohio, Pennsylvania.

The Southern States ratifying the Amendm ent included 
the Skates of Tennessee, North  Carolina, South Carolina, 
Missouri, Arkansas, Louisiana, Alabama, Georgia, and 
Florida. V irginia, after first rejecting, ratified on October 
8, 1869. Texas ratified February 18, 1870. A ll of these eleven 
States w ithin a short time thereafter adopted constitutional 
and Statutory provisions for separate but equal schools'for 
white and Ne^ro children, thereby demonstrating the Con­
temporary uhderstanding o f these States that there was no 
conflict withvthe Fourteenth Amendm ent and the principle 
of separate schools. • •

The schools* of the District of Columbia, before, during, 
and Mter thd, adoption of the. Fourteenth Amendment, Were 
maintained by. the Congress on a separate basis for wjhite 
and Negro children. Thus, the very Congressmen who pro­
posed the Fourteenth Amendm ent could not w ell have 
interpreted 'it':.; 1° prohibit separate equal schools in sthe 
States.18 •' , >

Subsequently the Congress gave contemporaneous con­
struction to the Fourteenth  Am endm ent in its actions* on 
the bill which- became the .Civil R ights A ct of 1875. The 
original bills in both Houses (S. No. 1 and H.R. 796) pro­
hibited separate schools for.w h ite and Negro students./All 
reference to'VsChools was stricken in the House19 and thisv.
action was concurred in by the Senate.20 V

• * . '• \------  *4 . *
1K/Lillian G. Dabney, T h e  H is to ry  of Schools fo r  N egroes  in - th e  
District of Cohl'rnbia, 1870-1947, Catholic U n ive rs ity  o f A m erica  
Pres^/1939, ppt 21 and 111 et seq. ;;
19/ Congressional Record, 43rd'Cong., 2nd Sess., p. 1010. i 
2°/ Ibid. p. 1870. /



30

It  is significant to note that the trustees of the George 
Peabody Fund (a  foundation having assets of over $2,000,- . * 
000, created by George Peabody of Massachusetts, which-.' 
fund was instrumental in the establishment of many • 
schools in the South) were influential in having the mixed L 
schools provisions taken out o f the C ivil R ights Act of 
1875.21 More positive interpretation by Congress came with _ . 
passage of the Act of June 11, 1878 (20 Stat. 107, Chapter ' 
180) which specifically provided for the operation of the . ;, 
public schools of the District of Columbia upon an equal ; 
but separate system for white and Negro children. Since ' ; 
their origin in 1862 (12 Stat. 407) the schools of the Dis- ; 
trict of Columbia have continued to be operated in that 
w ay22 under direct authority of the Congress of the United \\ 
States, the branch of the Government authorized by the 
Fourteenth Am endm ent to enforce its provisions. .

Contemporaneous interpretation by State courts was the 
same as that of the Congress and State Legislatures. For ; • 
example, the N ew  York Court, in Dallas v. Fosdick, 40 ..l 
How. Pr. 249 (1869), stated: •'

“ It  was claimed upon the argument of the appeal ; 
taken in this cause, that the provisions of the charter, 
if they w ere to be so construed as to exclude colored ' 
children from the schools provided for white children, \ 
were inconsistent w ith the act of Congress called the 
‘c iv il rights b ill,’ and had, therefore, become inopera- ‘ . 
tive. But that is very  clearly not the case. It  was no L  
part of the civ il rights bill to regulate or provide for . 
the enjoym ent of rights or privileges of the nature of 
those in controversy in this case.”  (p .256 )

Sim ilarly, the Indiana Court in Cory v. Carter, 48 Ind. •• 
327 (1874) wrote:

21/ Curry, B iog ra p h ica l Sketch  of George Peabody; Boyd, Educa- ; 
tional H is to ry  in  the South  S ince 1865, Studies in Southern His- * 
tory, p. 262.
22/ Public L a w  254 o f the F ifty -N in th  Congress, H .R . 11,442, passed 
June 20, 1906 under w h ich  separate schools continue to be main- 
tained in the D istrict.



i.“ The action of Congress, at the same session -at 
v^hich the fourteenth amendment was proposed .to 
t§e states,-'and at a session subsequent to the datej-of 
its ratification, is w orthy of consideration as evincing 
t$e concurrent and after-matured conviction of that 
body that /there was nothing whatever in the amerid- 
rrfcent which prevented Congress from  separating the 
\^hite and'colored races, .and placing them, as classes, 
iit d iffered ! schools, and that such separation vC*as 
highly proper and conducive to the well-being of, the 
races, arid calculated to secure the peace, harmony 
a$d welfare of the public . . . (T h e  court then cites 
several Acts of Congress relating to separate schools 
in the District of Columbia) : '•

v :. ■ . ' • ;
£.“ The legislation of Congress continues in force, ,'at 

the present time, as a legislative construction of the 
f^rteenth-am endm ent, and as a legislative declaration 
of w hatrw ;as thought to be lawful, proper and ex­
pedient under such amendment, by the same body that 
proposed, such amendment to the states for their ap­
proval and ratification.” (pp. 364-366) 

y i
SeeCalso State v. McCann, 21 Ohio St. 198 (1871); State

v. Duffy, 7 Ney. 342 (1872); People v. Gaston, 13 Abb.
(N .YJ  Pr. N.S. 160 (1869); W ard v. F lood , 48 Cal. 36
(18745; SUite'pi-Board of Education, 7 Ohio Dec. 129 (1876);
ComrrvpntveaUH.v. W illiam son, 30 Deg. Int. 406 (Pa. 1873).•• ■ ■„ 

Contemporaneous construction by this Court is found, in
Hall v : DeCuvr (1877), supra,-where this Court struck down 
a Statfc statute requiring a com m ingling of the races on a 
steamboat operating in interstate commerce. The contejfn- 
poran&ous construction of the State courts is discussed'at 
length’-by Mr!'j.ustice Clifford. [

Other contemporaneous expressions of this Court up­
held the State’s police power. For example in Bartem eyer 
v. Ioiya, 18 W all. 129, 21 L; ed. 929 (1873), Mr. Justice 
Field,-’'concurring said: •

■\“ No ofie has ever pretended . . . that the fourteenth 
amendment interferes in any respect w ith the police 
power o f ‘the state . . .”  .



32

Follow ing this decision this Court said of the Fourteenth • 
Amendment in B arbier v. Connolly, 113 U. S. 27, 28 L. ed. > • 
923 (1885): v’: r •

“ But neither the amendment— broad and compre- 
hensive as it is— nor any other amendment, was de- * \ 
signed to interfere w ith the power of the State some- : 
times term ed its police power, to prescribe regulations 
to promote the healthy morals, education, and good -• 
order of the people. .

W hat could be clearer than the statement by Mr. Justice 
Clifford in H all v. DeCuir, 95 U. S. at 506 (1877): 1 v

“ And it is w e ll settled law there that the (school) • 
board may assign a particular school for colored chil- .. 
dren and exclude them from  schools assigned for white ; ; 
children and that such a regulation is not m violation 
of the Fourteenth Am endm ent.”

This doctrine has been re-emphasized in the many cases . 
heretofore cited. It  is respectfully submitted that to over- : . 
throw the systems built up over a period of almost a cen- .. 
tury and fo llow ing the plan first used by the Northern C 
States and the Freedm en ’s Bureau as an agency of the : 
Federal Government, would result in utter chaos and con- _ 
fusion which would fu lly nullify the progress in public • 
education and race relations which the States have made •• 
during this period.

A ll contemporaneous interpretation indicates that sep- 
arate schols, if equal, w ere not considered discriminatory ■-* 
against either race and that the system does not contra-; 
vene the equal protection clause as then or now under- •  ̂
stood and interpreted. ;

It  is further submitted, as pointed out elsewhere in this;.; 
brief, that this is a problem for the individual States to • 
solve. Many Northern  States which originally followed this ■ • 
plan have, at times when they believed conditions justified v 
their action, provided by statute and in their Constitu­
tion for m ixed schools. Colorado, Connecticut, Idaho, _•



M *■*
Illinois; Massachusetts, Michigan, Minnesota, N ew  Jersey, 
New Ybrk, Pennsylvania, Rhode Island, and W ashington 

■ are nuhibered-in this group. I t  was noted, however, in. ah 
article by Reid F- Jackson, “ The Developm ent of Perm is­
sive and P a rtly  Segregated Schools,” Journal of N egro  Edti- 

. ca tion ,ivol. 1 • p. 301, that In spite of these provision?,
separation in some form has arisen in these States. Other 
States have provided by statute for perm issive separation 
while sipme are Silent on the subject. ■

Frorrj this bifief summary, it would seem that the logical 
conclusion which follows is that it should remain w ith in 
the povyer of the individual States to decide their educ^- 

• tional policies.!"' I f  and when .conditions justify a change, 
they mdy alter7their policies, but due to the varied condi­
tions arid relations of the races w ithin the borders of thp 
States, Ihe problem is not one. which can be solved by th<e 
Federai/Government and certainly not by the Court. . • 

To extend thfe'interpretation of the Fourteenth Am end­
ment schfar beyond its w ell settled construction, now or at 
any tirnp in the future, would .seem only to invite disaster 
for public education in the States which would be affected,

“The Constitution is a w ritten instrument. As such 
its meaning does not alter,. That which it meant when 
adopted, it means now .” South Carolina v. United, 
States, 199-U. S. 437, 448, 50 L. ed. 261, 264, ;4 *

* • • * . ' *  '» '

!  h i . ; '
•V* • .•

The reaso nab leness of the sep arate  school law s ha$ 
been settled by th is C o u rt, and  the need th erefo r is. 
a question for the States to d ecide . If th is  C o u rt , 
ever goes behind State  sta tu tes to m ake a ju d ic ia l  
determ ination of the reaso n ab len ess and  need, >

\ it should not do so on th is  record . ■-W *
a- , •• r 1

Petitioner and- his amici curiae urge that the Court 
should rb-examine the question of the need and reasonable-, 
•ness of the classification as to' race in the separation o£



34

students. The brief of Texas fu lly demonstrates that this • 
Court has many times considered this question and ap- ; 
proved the classification as reasonable when determined- 
necessary by State Legislatures. This Court has never.- 
gone behind the legislative acts to make its own determina-; i 
tion of need and reasonableness. It  was w ith  this in mind 
that the record in this case was made in the trial court. ; • 

One amicus curiae, the Federal Council of Churches of-, 
Christ in America, furnishes one of the strongest argu -‘ 
ments for the reasonableness and need of the rule. That - 
is, that the people making up the member churches, both . 
North and South, as a general rule, maintain in actual . 
practice, separate churches, separate church schools, and 
many separate colleges and universities. The churches and ' 
their schools are fine and not the slightest criticism  is in- '• 
tended or inferred. But the church schools and colleges, a s>• 
a general rule, acting on the same com pelling reasons that • 
caused the Southern people to w rite the practice into their . 
Constitutions and laws, have provided for a separation o f;  
the races, at least in their colleges in the South. For ex­
ample, The U niversity  of the South (Sew anee), W ake '. 
Forest, Baylor, Southern Methodist University, Randolph- ;* 
Macon, Hardin Simmons University, Howard Payne Col- ' 
lege, Texas Christian University, College o f the Ozarks, ; 
Georgetown College, Centenary College, and Furman U n i­
versity. The Federal Council’s thesis is against separatiori j 
of the races. Y e t the practice of the members, in the Soutli • 
and only to a lesser degree in the North, is to separate the ; 
races not only in education but in worship. ]

Should the Court determine to exam ine the reasonable-' 
ness and need of the classification, it should not do so w ith -« 
out g iv in g  Texas and these States an opportunity to pre« 
sent their evidence. There should be a fu lly  developed; 
record of the situation in the whole area of this nation ill 
which it is such a basic principle. This case, as we read the ; 
record, was tried on the theory that the reasonableness of- 
the rule had been established by this Court in the GonQ • 
Lum , Plessy, Gaines and other decisions. The need was.



35

left^to the discretion o f State Legislatures. Indeed the* trial 
cou^t excluded most of the evidence of petitioner irr this 
regard. W ith  such testimony being excluded, it is reason­
ably inferred that Texas justifiably did not fee l called upon 
lo introduce" evidence to '.refute the excluded testimony. 
Sin^e all these States w ill: fee bound by the decision of this 
casd, they should certainly be allowed to present their 
witnesses apd other evidence before an issue on the reason­
ableness of-and necessity for such laws are determ ined by 
thisjCourt. Our contention :is that the question is properly 
legislative. But we desire tp present our views in separate 
casdg with fu lly developed records if this Court ever should 
decide to gp behind the legislative acts to determ ine isuch 
questions. ;

C O N C L U S IO N
, • , */

The decisions of this Court, rendered by some of" the 
ablest justices in its history, have firm ly establishedv the 
principle th&t the States, in  the exercise of their police 
power for tjhe safety, harmony, and w elfare of all their 
citizens, may furnish education to their white and Negro 
students at ‘’separate institutions where substantially egual 
facilities and opportunities', are offered both groups. .

The exercise of this police power of the States has been 
necessary, and this Court: has found its exercise to be 
reasonable and constitutional. The necessity still exists!

The argument, that the: Fourteenth Am endm ent yvas 
intended to ‘abolish all distinctions based on race in ;the 
public schools is com pletely without foundation. Th e pon- 
temporaneoiis and later construction by this and ot^her 
Courts, by the Congress, in maintaining separate schools 
in the District of Columbia, and by the Legislatures of'dhe 
various States is to the contrary. The debates on the Four­
teenth Amendment, the C ivil R ights Acts of 1866, 1870, 
and £875, all show that the-m ajority of the very  men \irho 
proposed the Fourteenth Amendm ent and the other acts 
believed the States continued to have the power to establish



*

36

and maintain separate schools. They were in fact main- ; *. 
tained in a m ajority of the States.

It  is therefore respectfully submitted that this Court 
should fo llow  its w ell considered opinions that the States ; • 
may, in the exercise o f their police power, furnish separate 
equal educational facilities to their white and Negro > 
citizens. > -

Respectfu lly submitted,

Ike M u rray
Attorney General of A rkansas  

for the State of A rkansas

Richard  W . E rv in
Attorney General of F lorida
Frank  J. H ein tz
Assistant Attorney General  

for the State of F lorida

Eugene Cook
Attorney General of G eorg ia  
M. H. B lackshear, Jr.
Assistant Attorney General  

for the State of Georgia

A. E. Funk
Attorney General of Kentucky
M. B. H o lifie ld
Assistant Attorney General

for the Com m onwealth  of Kentucky

B o liva r E. K em p
Attorney General of Louisiana  

for the State of Louisiana

G reek E. R ice*
Attorney General of Mississippi

♦N ow  deceased but signature

G eorge H. E th ridge
Acting Attorney General

for the State of Mississippi

H a rry  M cM ullan
Attorney General of North  Carolina
Ralph M oody
Assistant Attorney General

fo r  the State of North  Carolina

Mac Q. W illiam son
Attorney General of Oklahoma  

for the State of Oklahom a

John M. Daniel
Attorney General of South Carolina  

for the State of South Carolina

R oy  H . B eeler
Attorney General of Tennessee
W illia m  F. B arry
Solicitor General

for the State of Tennessee

J. L indsay A lm ond, Jr.
Attorney General of V irg in ia
W alter E. Rogers
Assistant Attorney General

for the Com m onwealth  of V irgin ia

authorized before death.

c

. /



•37

•* A P P E N D IX

Constitutional and S tatu to ry  P rovisions R eq u irin g  
Segregation  in 'P u b lic  Ed u catio n

f A L A B A M A# V J.
Constitution-of Alabama, A rtic le  X IV , Section 256: 5,

Thb Legislature shall establish, organize and maintain a. 
liberal system of public schools throughout the State-for 
the benefit 6f the children: thereof between the ages of 
seven and twenty-one years. The public school fund spall 
be apportioned to the several counties in proportion to the 
number of school children ctf school age therein, and shall 
be sc>' apportioned to the schools in the districts or town- 
shipsrin the counties as to provide, as nearly as practicable, 
school terms,'of equal duration in such school districts-^ or 
townships. Separate s c h o o l shall be provided for w ljite  
and colored Children, and rto child of either race-shall*: be 
permitted to ̂ attend a school- of the other race. -

CODE OF 1940, Chapter 52, Section 93: i
’■4 '; ____ *l • •

Frse Separate Schools F6r W hite And Colored.— The 
county board o£, education shall provide schools o f two 
kinds'*, those ior white children and those for colored ch il­
dren. YThe schools for w h ite children shall be free to -all 
white^childreh over six years o f age. The schools for colored 
children shall be free to all colored children over six years 
of age: )

■ A R K A N S A S
A R K A N S A S  S TA T . 1947, A N N ., A rtic le  80, Section 
509. : ;

Duties And; Powers Of School Directors— Budgets,— In ­
debtedness.—tThe board of school directors of each district 
in th£ State $hall be charged w ith the fo llow ing powers 
and perform £he fo llow ing duties: ;•

(c ) ;■ Establish separate schools for white and colored 
persons.



38

D E L A W A R E
Constitution of Delaware, A rtic le  X , Sections 1 and 2.

Section 1. The General Assem bly shall provide for th e ',  
establishment and maintenance of a general and efficient ■ ' 
system of free public schools, and may require by law that ; 
every child, not physically or mentally disabled, shall a t--, 
tend the public school, unless educated by other means.

Section 2. In  addition to the income of the investments 
of the Public School Fund, the General Assem bly shall ? 
make provision for the annual payment of not less than 
one hundred thousand dollars for the benefit of the free .. 
public schools which, w ith the income of the investments 
of the Public School Fund, shall be equitably apportioned ; • 
among the school districts of the State as the General \ 
Assem bly shall provide; and the money so apportioned 
shall be used exclusively for the payment of teachers’ 
salaries and for furnishing free text books; provided, h ow -^  
ever, that in such apportionment, no distinction shall be - 
made on account of race or color, and separate schools for 
white and colored children shall be maintained. A ll other . 
expenses connected w ith the maintenance of free public 
schools, and all expenses connected w ith  the erection or 
repair of free public school buildings shall be defrayed in 
such manner as shall be provided by law.

R E V IS E D  CODE OF D E L A W A R E , 1935, Chapter 71,; ‘
Section 2G31. "

Shall Maintain Uniform  School System; Separate Schools . • 
For W h ite  Children, Colored Children, And Moors; Ele- •. 
m entary Schools.— The State Board of Education is au- 
thorized, 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 by-laws or rules and regulations and the 
policies of the State Board of Education to be carried into _ 
effect. The schools provided shall be of two kinds; those : 
for white children and those for colored children. The - 
schools for white children shall be free for all white chil- '



i 39
.‘S

drerr between the ages of sfx and twenty-one years, inclu- 
sive;’.and the schools for colored children shall be freh to 
all calored children between the ages of six and twentyrbne 
year?, inclusive. The schools for white children shall be 
numbered and the schools- for colored children shall be 
numbered a? numbered prior to the year 1919. The State 
Board of Education shall establish schools for children of*■ ' . v
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 number of days;" re­
quired by law for school attendance and provided further 
that §uch school shall be free to all children of the people 
called Moor?, or the people called Indians, between the 
ages pf six apd twenty-one years. No white or colored child 
shall jbe permitted to attend such a school without the per­
mission of the State Board o f Education. The public schools 
of thte State jshall include elementary schools which shall 
be of,such number of grades as the State Board of Educa­
tion shall decide after consultation w ith  the Trustees of 
the District in which the school is situated. =

l  ' FLORIDA
Constitution of Florida, A rticle X I I ,  Section 12.

White And'Colored— Separate Schools.— W hite and color­
ed children shall not be taught in the same school but 
impartial provisions shall be made for both.

F L O R ID A  S T A T U T E S  OF 1941, Section 228.09. t 
Separate Schools For W h ite  And Negro Children Re- 

quireg.— T h e schools for vyhite children and the schdols 
for Nbgro children shall be' conducted separately.- No .qn- 
dividpal, body of individuals, corporation or association 
shall .conduct within this State any school of any grade 
(public, private or parochial) wherein  white persons and 
Negrcjes are instructed or boarded in the same building; or 
taughfc in the same classes or. at the same time by the same
teachers. h

<• \



G E O R G IA
Constitution of Georgia, A rtic le  V I I I ,  Section 2.6601.

System Of Common Schools; Free Tuition.— There shall » 
be a thorough system of common schools for the education . v 
of children as nearly uniform as practicable, the expenses > 
o f which shall be provided for by taxation, or otherwise. ■ 
The schools shall be free to all children of the State, b u t;' 
separate schools shall be provided for the white and colored 
races.

CODE OF 1933, Section 32-909.
School Term , School Property And Facilities.—  . . .  It 

shall also be the duty of said Board o f Education to make ‘ 
arrangements for the instruction of the children of the v 
white and colored races in separate schools. T h ey  shall a s . ; 
far as practicable, provide the same facilities for both races . 
in respect to attainments and abilities of teachers and for '; 
a m inimum six months of term time, but the children of- . 
the white and colored races shall not be taught together; ‘ 
in any common or public school. ■ •

#•

K E N T U C K Y
Constitution of Kentucky, Section 187.

In  distributing the school fund no distinction shall be-. ; 
made on account of race or color and separate schools for •• 
white and colored shall be maintained. ;'

K E N T U C K Y  R E V IS E D  S T A TU TE S , Section 158-020. ;:
Separate Schools For W h ite And Colored Children.—  • 

(1 ) Each Board o f Education shall maintain separate 
schools for the w hite and colored children residing in its 
district.

(2 ) N o person shall operate or maintain any college,/'
school or other institution where persons of both the white 
and colored races are received as pupils. ;

(3 ) No instructor shall teach in any college, school or/
institution where persons of both the white and colored • 
races are received as pupils. :

(4 ) N o white person shall attend any college, school or'.

40
{

r• S f
’ -V

r I

•?
. 1

I
j



{<■

l  '< 41

institution where colored persons are received as pupils or 
receive; instruction. ; l

(5 ) No colored person shall attend any college, school 
or institution where white persons are received as . pupils 
or receive instruction. V {•

L O U IS IA N A
Constitution of Louisiana, A rticle X I I ,  Section 1.

Educational system of state— W hite and colored schools 
—Kindergartens.— The educational system of the State 
shall cbnsist Of all free public schools, and a l l ’ institutions 
of learning, supported in whole or in part by appropriation 
of public fund$. Separate frbe public schools shall be main­
tained dor the Education of white and colored children be­
tween the ages o f six and eighteen years; provided, that 
kindergartens Ynay be authorized for children between the 
ages o f four ahd six years, j'

:• • ; M A R Y L A N D
v  •/ .

A N N O T A T E D  CODE OF M A R Y L A N D , 1939, Chapter 
9, Section-111. . • ;

A ll white youths between the ages of six and twenty-one 
years shall be admitted into such public school of the 
State, the studies of which they m ay be able to pursue; 
provided, that' whenever there are grade schools, the prin­
cipal and the - county superintendent shall determine to 
which-school pupils shall be admitted. ;•

A N N O T A T E D  CODE OF M A R Y L A N D , 1939, Chapter 
18v Section 192. V

It shall be tjie duty of the county board of education to 
establish one bt more public schools in each election district 
for all Colored Souths, between six and twenty years of age, 
to whigh admission shall be free, and which shall be kept 
open not less'.than one hundred and eigh ty (180) ' actual 
school days or-nine months in each year; provided, that the 
colored population of any such district shall, in the judg­
ment df the county board of education, warrant the. estab­
lishment of siich school or schools. ;

y
*



M IS S IS S IP P I
Constitution of Mississippi, Article V I I I ,  Section. 207.

Separate schools shall be maintained for the children of-^
the white and colored races. 1

M IS S IS S IP P I CODE, 1942, A N N O T A T E D , Chapter 5,-,
Section G276.

Separate districts for the races— descriptions of districts.-.;
__Separate districts shall be made for the schools of the-
white and colored races, and the districts for each race 
shall embrace the whole territory of the county outside; . 
the separate school districts. A  regular school district shall, 
not contain less than forty-five educatable children of the,, 
race for which the district is established, except where too ;; 
great distance or impassable obstructions would debar chil-. 
dren from school privileges. . . .

M IS S O U R I
Constitution of Missouri, A rtic le  X I, Section 3. ' ,

Separate free public schools shall be established for the 
education of children of A frican  descent.

R E V IS E D  S T A T U T E S  OF M ISSO U RI, Section 10,_
349. ;•

Separate Schools For W h ite  And Colored Children.—  . 
Separate free schools shall be established for the education- 
of children of A frican  descent; and it shall hereinafter be • 
unlawful for any colored child to attend any white school 
or for any w hite child to attend a colored school. ^

N O R T H  C A R O L IN A
Constitution of North  Carolina, A rtic le  IX , Section 2.

General Assem bly Shall Provide For Schools; Separation 
Of The Races.— The General Assembly, at its first session- 
under this Constitution, shall provide by taxation and. 
otherwise for a general and uniform system of public. • 
schools, wherein tuition shall be free of charge to all chil­
dren of the State between the ages of six and tw enty-one.

i



/ ;
b ' ; 43
£ ’  . *

• yeaffe. And the children of the white race and the children 
of the colored race shall - be taught in separate public 
schools; buty there shall be no discrim ination in favok of, 
or tp the prejudice of, either race. . {

G E N E R A L  S T A T U T E S  OF N O R TH . C A R O L IN A , 
Section ‘-115-2.

Separation Of Races.— The children of the white race 
and the children of the colored race shall be taught in sep­
arate publicvschools, but there shall be no discrimination 
in fs^vor of o r to the prejudice of either race. A ll white 
children sh^ll be taught in the public schools provided 
for the whitb race, and all colored children shall be taught 
in the public schools provided for the colored race; but no 
child" w ith riegro blood, or. what is generally known' as 
Croafan Indian blood, in his'veins, shall attend a school for 
(he y/hite race, and no such child shall be considered a 
white child. -The descendants of the Croatan'Indians, now 
living in Robeson, Sampson, and Richmond counties, shall 
have^separate schools for their children. ' . ;•

Ge n e r a l  s t a t u t e s  o f  n o r t h  Ca r o l i n a ,
Section 115-3. V

Schools Provided For Both Races; Taxes!— W hen  the
school officials are provid ing schools for one race it shall
be a misdemeanor for the officials to fail to provide schools
for the other? races, and it shall be illegal to levy  taxes ;on
the pifoperty'dnd polls of one race for schools in a district
without levying it on all property and polls for all races
withifi said district. f !

» 1

? j  O K L A H O M A
• ’ » '

Constitution pf Oklahoma, A rtic le  X I I I ,  Section 3. i 
Separate; Schools For W hite And Colored Children!

! S e rra te  schools for white and colored children w ith  like 
accoramodation shall be provided by the Legislature ahd 
impartially maintained. The term “ colored children,” -as 
used hi this (section, shall be construed to mean children 
of African descent. The term “ white children”  shall include 
all other children. ; V

'1i * . ,. *



« l»

O K L A H O M A  S T A T U T E S  A N N O T A T E D , Chapter 15, 
Section 451. ='•.

Separation Of W h ite  And Colored Races.— The public' 
schools of the State of Oklahoma shall be organized and ’ 
maintained upon a complete plan of separation betweert 
the white and colored races, w ith  impartial facilities for 
both races.

44

S O U T H  C A R O L IN A
Constitution of South Carolina, A rtic le  X I, Section 7.

Separate Schools.— Separate schools shall be provided '. 
for children of the white and colored races and no child 
of either race shall ever be perm itted to attend a school.' 
provided for children of the other race. :

CODE OF SO UTH  C A R O L IN A , Section 5377.
M ixed Schools Unlaw fu l.— It shall be unlawful for pupils 

of one race to attend the schools provided by boards o f’ 
trustees for persons of another race.

T E N N E S S E E
Constitution o f Tennessee, A rtic le  11, Section 12. < .

Sec. 12. Education to be cherished; common school fund;., 
poll tax; whites and negroes; colleges, etc., rights of.— .
. . . The state taxes, derived hereafter from  polls shall be- 
appropriated to educational purposes, in such manner as- 
the general assembly shall from time to time direct by law. 
No school established or aided under this section shall; 
allow  white and negro children to be received as scholars, 
together in the same school. The above provisions shall not. 
prevent the legislature from carrying into effect any laws- 
that have been passed in favor of the colleges, universities 
or academies, or from  authorizing heirs or distributees to 
receive and en joy escheated property under such laws as 
may be passed from  time to time.

CODE OF T E N N E S S E E , Section 2377.
Schools designated for children; separate schools fox'- 

white and negro children.— The county board of education:



sli.Il d^ ighate the schools which the children shall attend- 
provided, -that separate schools shall be established and 
maintained for white and for negro children. •

t : T E X A S  ;
Constitution of Texas, A rtic le  V I I ,  Section 7.

Separat^ s ch oo l shall he provided for dhe w hite and 
fo r^o th Chf ldren and imPartial provisions shall be made

,, % Parate; Schools.— AH available public school funds of 
this State shall be appropriated in each county foi- the 
education alike of white and colored children, and impartial 
provisions shall be made fo r both races. No w hite children 
shall attend schools supported for colored childrens nor 
sha}l colored children attend schools supported for white 
children. T fie  terms “ colored race”  and "colored children 
as used m «th is title, include all persons of m ixed blood 
descended from  negro ancestry.

* v  ■» -f • i’*• 5*' ' •.
i  V IR G IN IA

Constitution of V irgin ia, A rticle V I I ,  Section 140 ■>

s a ^ s c h o ^ .  COl° red Chil<ten Sha"  n0t be tauSht in  the

P F  V IR G IN IA, A rtic le  22, Section 221 -
VOnte And Colored Persons.— W hite and colored persons 

s au not bevtaught m the same schools, but shall be taught 
m separate-schools, under the same general regulations as 
to management, usefulness, and efficiency. ‘

•i •
-(■ l W E S T  V IR G IN IA

Constitution, of W est V irgin ia, A rtic le  X I I ,  Section 8 ■?
Mixed Schools Proh ib ited— W hite and colored persons 

shall. not be -taught in the same school.
^VEST -V IR G IN IA  CODE OF 1943, A N N O T A T E D  
Section.-1775.



46

Schools For Colored Pupils.— W hite and colored pupils-* 
shall not receive instruction in the same school, or in the*- 
same building. The board shall establish one free school,., j 
or more if necessary, in any part of the county where there ’ } 
are ten or more colored children of school age liv in g  within ■ • 
two miles of a point where a school m ight be established. 
And when such schools are established for colored children, ’ *. 
the teachers thereof shall be supplied from  members of- • 
their own race. Th e board may, if practical, establish a; ; 
school in a part o f the county where there are less than ; 
ten colored children of school age. ;

«

D IS T R IC T  O F C O L U M B IA i' *
D IS T R IC T  OF C O LU M B IA  CODE, T itle  31, Section;
1110. .

It  shall be the duty of the Board of Education to provide •• 
suitable and convenient houses or rooms for holding schools • 
for colored children, to em ploy and examine teachers there-' , 
for, and to appropriate a proportion of the school funds,,., 
to be determ ined upon number of white and colored chil-r. 
dren, between the ages of 6 and 17 years, to the payment  ̂
of teachers’ wages, to the building or renting of school- . 
rooms, and other necessary expenses pertaining to said. . 
schools, to exercise a general supervision over them, to 
establish proper discipline, and to endeavor to promote a. 
thorough, equitable and practical education of colored ch il-:' 
dren in the D istrict of Columbia.



•' h 47< , ■ ry
• T H E  'N E G R O : N O R T H  A N D  S O U T H
> •:

;; B y  D A V IS  L E Er ; .. i
’ Publisher of The Newark Telegram, Newark, N. J., ;
\ A  Weekly Negro Newspaper

I hafve just returned from  an extensive tour of the South. 
In addition tb meeting and ..talking w ith  our agents and 
distributors who get our newspapers out to the more thkn 
1)00,0(10 readers in the South, I  met both Negroes and w hi{es 
in the turban hnd rural centers. /

Because of these personal observations, studies and con­
tacts, | feel that I can speak w ith  some degree of authority. 
1 am certainly in a better position to voice an opinion than 
the Negro lea.der who occupies a suite in downtown N ew  
York ctnd basejs his opinions on the South from  the distorted 
stories'he reads in the Negro Press and D aily W orker:

The racial |ines in the South are so clearly drawn and 
defined there'can be no confusion. W hen I am in V irg in ia  
or South Carolina I don’t wpnder if I w ill be served if. I 
walk into a white restaurant. I  know the score. However'! I 
have walked Into several right here in N ew  Jersey where 
we haVe a civ il rights law, and have been refused service.

The ̂  whitest in the South stay w ith their own and the 
Negroeh do likewise. Th is one fact has been the economic 
salvatipn of the Negro in the South. Atlanta, Georgia, coifi- 
pares favorably w ith Newark in size and population. N.e- 
groes there own and control m illions of dollars w orth  nf 
business. A ll the Negro business in N ew  Jersey w ill nt>t 
amount to as friuch as our race has in one city  in Georgia. 
This is also true in South Carolina and Virginia.

New' Jersey/today boasts of. more c iv il rights legislation 
than any other State in the Union, and the State govern­
ment itself practices more discrimination than V irgin ia, 
North -.Carolina, South Carolina or Georgia. N ew  Jersey 
employs one Negro in the Motor Vehicle Department. Adi 
of the^States above mentioned em ploy plenty t

No matter what a Negro wants to do, he can do it in the
South. .In Spartanburg, South Carolina, ErnOst Collins, a■ \  •

• v .• ";; ) •;*i ,

»- S'



48

young Negro, operates a large funeral home, a taxicab': 
business, a filling station, grocery store, has several buses, - 
runs a large farm  and a night club.

Collins couldn’t do all that in N ew  Jersey or N ew  York.. 
The only bus lines operated by Negroes are in the South.' 
The Safe Bus Company in W inston-Salem, North  Carolina, 
owns and operates over a hundred. I f  a Negro in New 
Jersey or New  York  had the money and attempted to. 
obtain a franchise to operate a line, he would not only be- 
turned down, but he would be lucky if he didn ’t get a 
bullet in the back.

Negroes and whites get along much better together in 
the South than Northern agitators would have you believe. 
Of course, I know that there are some sore spots down 
there, and w e have them up here also. But it is not as bad 
as it is painted. The trouble in the South stems from dumb; 
ignorant whites and Negroes, not from  the intelligent, beb 
ter class element of the two races.

The attitude of the Southerners toward our race is .a 
natural psychological reaction and aftermath o f the War 
Between the States. Negroes w ere the properties of these 
people. They w ere not the peers, and w ere not even con­
sidered human in the true sense. The whole economy of 
the South was built around slavery. The South was forced 
by bloodshed and much harm to its pride, to g ive  up 
slavery. Overnight these slaves became full fledged Am er­
ican citizens en joying the same rights as their former
owners. y

Certain ly you couldn't expect the South to forget this It» 
75 or even 150 years. That feeling has passed from one 
generation to another, but it is not one of hatred for the 
Negro. The South just doesn’t believe that the Negro has 
grown up. No section of the country has made more pro 
gress in finding a workable solution to the Negro problem 
than the South. Naturally Southerners are resentful when 
the North attempts to ram a civ il rights program down 
their throats.

I have pointed out in dozens of editorials that the white



people of thjjs country are hot only our friends, but they 
wanUto see tjis get ahead as a race. As a matter o f fact/we 
aie rpore prejudiced than those whom we accuse of being 
prejudiced. •( , ;

rh6 entire*, race problem in Am erica is wrong. Our ^pp- 
proac î is wrong. W e expend all our energies, and spend 
millions of dollars trying to Convince white people that'W e 
are as good as they are, that we are an equal. Joe Lapis 
is not looked., upon as a Negro but the greatest fighter., of 
all time, loved and adm ired1 by whites in South Carolina 
as much as by those in Michigan. He convinced the world, 
not by propaganda and agitation, but by demonstration!

Our. fight for recognition, justice, c iv il rights and equal­
ity should be parried on w ith in the race. L e t us demonstrate 
to the world; by our liv ing; standards, our conduct, dur 
ability and intelligence that we are the equal of any man, 
and when w e shall have done this the entire world, in­
cluding the Sputh, w ill accept us on our terms. Our present 
program of threats and agitation makes enemies out o f our 
friend^. "