Brown v. Board of Education Brief on Behalf of the American Civil Liberties Union, American Ethical Union, American Jewish Committee, Anti-Defamation League of B'nai B'rith, Japanese American Citizens League, and Unitarian Fellowship for Social Justice as Amici Curiae

    IN TH E

Supreme Court of the United States
October Term, 1952

No. 8

OLIVER BROWN, MRS. RICHARD LAW TON, 
MRS. SADIE EMMANUEL, et a l .,

Appellants,
vs.

BOARD OF EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, et a l .,

Appellees.

BRIEF ON BEHALF OF 
AMERICAN CIVIL LIBERTIES UNION 

AMERICAN ETHICAL UNION 
AMERICAN JEWISH COMMITTEE 

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH 
JAPANESE AMERICAN CITIZENS LEAGUE 

AND
UNITARIAN FELLOWSHIP FOR SOCIAL JUSTICE 

AS AMICI CURIAE

Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays, 
Frank E. Karelsen,

of the New York Bar,
Leonard Haas,

of the Georgia Bar,
Saburo Kido,

of the California Bar,
W aldo B. W etmore, 

of the Kansas Bar,
Attorneys for Amici Curiae.

T heodore Leskes,
Sol Rabkin,

of the New York Bar, 
of Counsel.

3 0 7  B A R  P R E SS IN C ., 5 4  L A F A Y E T T E  S T ., N E W  Y O R K  1 3 -----W A . 5  - 3 4 3 2  -  3 .



TABLE OF CONTENTS

PAGE

I nterest oe t h e  A m ici .............................................................  1

S tatem en t  of th e  Ca s e ' ...........................................................  3

T h e  S tatu te  I nvolved .............................................................  4

T h e  Question  P resented ......................................................  4

S u m m ary  of A rgu m en t  ........................................................... 5

A rgum ent

I. The validity under the equal protection of 
the laws clause of the Fourteenth Amend­
ment of racial segregation in public educa­
tional facilities has never been decided by 
this Court ......................................................  6

II. Racial segregation in public educational 
institutions is an unconstitutional classifi­
cation under the equal protection of the 
laws clause of the Fourteenth Amendment 12

III. The finding of the court below, that Negro 
children are disadvantaged by the segre­
gated public school system of Topeka, re­
quires this Court to disavow the “ separate 
but equal”  doctrine as it has been applied 
to public educational institutions ................ 16

C onclusion  ....................................................................  28

Appendix 33



11 Index

Table of Cases

PAGE

Bailey v. Alabama, 219 U. S. 219 (1911)...................  13
Banks v. San Francisco Housing Authority, decided 

by the Superior Court of San Francisco, Cal.,
Oct. 1, 1952 ............................................................. 19

Belton v. Gebhart, decided by the Supreme Court of
Delaware, Aug. 28, 1952 ........................................  19

Berea College v. Kentucky, 211 U. S. 45 (1908)......  8
Briggs v. Elliott, 98 F. Supp. 529 (1951)...................  19
Brotherhood of R. R. Trainmen v. Howard, —; II. S.

—, 72 S. Ct. 1022 (1952) ......................................... 13
Brown v. Board of Education of Topeka, 98 F. Supp.

797 (1951) ............................................................... 18,19
Brown v. Mississippi, 297 U. S. 278 (1936) .............. 13
Buchanan v. Warley, 245 U. S. 60 (1917) ................. 13, 14

Chambers v. Florida, 309 U. S. 227 (1940)................ 13
Gumming v. County Board of Education, 175 U. S.

528 (1899) ............................................................... 7

Fisher v. Hurst, 333 U. S. 147 (1948) ................... . 10,18

Gong Lum v. Rice, 275 U. S. 78 (1927).......... 5, 9,10,11,18
Grovey v. Townsend, 295 U. S. 45 (1935)...................  19
Guinn v. U. S., 238 U. S. 347 (1915)............................. 14

Hall v. DeCuir, 95 U. S. 485 (1878) ...........................  6, 7
Henderson v. U. S., 339 U. S. 816 (1950)...................  13
Hirabayashi v. H. S., 320 H. S. 81 (1943)............12,15,16

Jones v. Opelika, 316 U. S. 584 (1942).......................  19

Korematsu v. IT. S., 323 H. S. 214 (1944) ................. 12,15



Index 111

PAGE

Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61
(1911) ......................................................................  12

McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151
(1914) ......................................................................  10

McGee v. Mississippi, — Miss. —, 40 So. 2nd 160
(1949) .............   28

McLaurin v. Oklahoma State Board of Regents, 339
U. S. 637 (1950) .................................8,10,11,18,20

Minersville School District v. Gobitis, 310 U. S. 586
(1940) ......................................................................  19

Missouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938) ...................................................................9,10,18

Mitchell v. U. S., 313 U. S. 80 (1941).........................  13
Morgan v. Virginia, 328 IT. S. 373 (1946).................  13
Murdock v. Pennsylvania, 319 U, S. 105 (1943)..........  19

Nixon v. Herndon, 273 U. S. 536 (1927).....................  14

Oyama v. California, 332 IT. S. 633 (1948)...................  12

Plessy v. Ferguson, 163 IT. S. 537 (1896)
5,7, 8,10,11,18,19, 20

Shelley v. Kraemer, 334 IT. S. 1 (1948) ..................... 13,14
Shepherd v. Florida, 341 1'. S. 50 (1951)......................  13
Sipuel v. Board of Regents of the University of

Oklahoma, 332 U. S. 631 (1948) ..........................10,18
Smith v. Allwright, 321 U. S. 649 (1944) .................... 14,19
Steele v. Louisville & Nashville Railroad Co., 323

U. S. 192 (1944) ................................................ 13
Strauder v. West Virginia, 100 U. S. 303 (1880)......  13
Sweatt v. Painter, 339 U. S. 629 (1950) ..........8,10,18,20

Takahashi v. Fish & Game Commission, 334 U. S.
410 (1948) ..............................................................  14



IV Index

PAGE

Tunstall v. Brotherhood of Locomotive Firemen, 323
U. S. 210 (1944) .....................................................  13

U. S. v. Reynolds, 235 U. S. 133 (1914).......................  13

West Virginia State Board of Education v. Barnette,
319 U. S. 624 (1943) .............................................. 19

Yick Wo v. Hopkins, 118 U. S. 356 (1886) ................ 14
Yu Gong Eng v. Trinidad, 271 IT. S. 500 (1926)........  14

Other Authorities Cited

Adorno, Frenkel-Brunswik, Levinson and Sanford,
The Authoritarian Personality (1950) ................ 18

52 American Jewish Yearbook (1951).........................  20
Antwerp Le Matin, May 1951 ......................................  31
The Austin Statesman, November 14, 1950................ 21

Biennial Report, 1949-1951, State of New Jersey, 
Dep’t. of Education, Division Against Dis­
crimination .............................................................25, 26

Bond, Education of the Negro in the American Social
Order (1934) ........................................................... 17,27

Chicago Sun-Times, September 26, 1950 .....................  24
Cologne Welt Der Arbeit, April 7, 1950 .....................  30

Dallas Times Herald, October 2, 1951 .........................  20
Dawkins, Kentucky Outgrows Segregation, The Sur­

vey, July 1950 .........................................................  21
Dayton Journal Herald, June 23, 1950 .......................  25

Frenkel-Brunswik, A Study of Prejudice in Children,
1 Human Relations 295 (1948).............................. 18



Index v

Gallagher, American Caste and the Negro College
(1938) ......................................................................  17

Goodman, Race Awareness in Young Children (1952) 18

Heinrich, The Psychology of a Suppressed People
(1937) ......... "............“..............................................  17

The Houston Chronicle, Sept. 10, 1952 .......................  20
The Houston Informer, December 5, 1951 .................. 20
The Houston Post, January 9, 1951 .............................  20

Little Rock Arkansas Gazette, July 1, 1951................  21
Long, The Intelligence of Colored Elementary Pupils 

in Washington, D. C., 3 J. of Negro Ed. 205
(1934) ... .............................   17

Long, Some Psychogenic Hazards of Segregated
Education of Negroes, 4 J. of Negro Ed. 336
(1935) ......................................................................  17

Marseilles Semailles, May 18, 1951 ............................. 29
Miami Herald, May 6, 1951 ..........................................  21
46 Michigan L. Rev. (1948) ..............  7
Morisey, A New Trend in Private Colleges, New

South, Aug.-Sept. 1951 ..........................................  22
Myrdal, An American Dilemma (1944) ........................ 6,18

New York Herald Tribune, June 23, 1949...................  21
New York Herald Tribune, Sept. 28, 1951..................  22
New York Post, Aug. 24, 1948 .... ...............................  21
The New York Times, January 30, 1950 ...................  24

The Oklahoma City Daily Oklahoman, June 7, 1951 . 20

PAGE

Paris L ’Aube, May 9, 1951 ................
Pittsburgh Courier, December 1, 1951

29, 30 
24



V I Index

PAGE

President’s Commission on Higher Education, Higher
Education for American Democracy (1947)......  17

President’s Committee on Civil Rights, To Secure
These Rights (1947) .............................................. 27

Richmond News Leader, September 25, 1952..............22, 23

Santa Pe New Mexican, September 2, 1951................ 23
Saveth, The Supreme Court and Segregation, The

Survey, July 1951 .................................................  23
Segregation in Public Schools—A Violation of 

“ Equal Protection of the Laws” , 56 Yale L. J.
1059 (1947) ....................   17

St. Louis Globe-Democrat, April 17, 1952...................  22
St. Louis Post-Dispatch, July 7, 1950; May 11, 1952.. 22

Thompson, C. H., Letter to the Editor, The New
York Times, April 6, 1952 ....................................  27

Vienna Arbeiter-Zeitung, February 4, 1951................ 29

Washington Times-Herald, July 17, 1951...................  22



IN TH E

Supreme Court of the United States
October Term, 1952

No. 8

OLIVER BROWN, MRS. RICHARD LAW TON, 
MRS. SADIE EMMANUEL, et a l .,

Appellants, 
vs.

BOARD OF EDUCATION OF TOPEKA, SHAWNEE 
COUNTY, KANSAS, et a l .,

Appellees.

BRIEF ON BEHALF OF 
AMERICAN CIVIL LIBERTIES UNION 

AMERICAN ETHICAL UNION 
AMERICAN JEWISH COMMITTEE 

ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH 
JAPANESE AMERICAN CITIZENS LEAGUE 

AND
UNITARIAN FELLOWSHIP FOR SOCIAL JUSTICE 

AS AMICI CURIAE

Interest of the Amici

This brief is filed, with the consent of both parties, on 
behalf of the American Civil Liberties Union, the American 
Ethical Union, American Jewish Committee, the Anti-



2

Defamation League of B ’nai B ’rith, the Japanese Ameri­
can Citizens League and the Unitarian Fellowship for 
Social Justice. The Appendix contains a description of 
each of these organizations.

The present case and the companion cases, all involv­
ing the constitutionality of racial segregation in public 
elementary and secondary schools, present an issue with 
which all six organizations are deeply concerned because 
such segregation deprives millions of persons of rights 
that are freely enjoyed by others and adversely affects 
the entire democratic structure of our society.

We have read the briefs of the appellants, with the 
appendix thereto, and we unequivocally endorse the argu­
ments, legal, educational and sociological, therein advanced. 
In this amici brief we are urging arguments which have 
not been made in the appellants’ briefs and which we 
believe should be presented to this Court.



3

Statement of the Case

The adult appellants are Negro citizens of the United 
States and of the State of Kansas (R. 3-4) while the 
infant appellants are their children eligible to attend and 
now attending elementary schools in Topeka, Kansas, a 
city of the first class within the meaning of Section 13-101, 
General Statutes of Kansas, 1949. Appellees are State 
officers empowered by State law to maintain and operate 
the public schools of Topeka, Kansas.

On March 22, 1951, appellants instituted this action 
seeking a declaratory judgment and an injunction to com­
pel the State to admit Negro children to the elementary 
public schools of Topeka on an unsegregated basis on the 
ground that segregation deprived them of equal educa­
tional opportunities within the meaning of the Fourteenth 
Amendment (R. 2-7). In their answer, appellees admitted 
that they acted pursuant to the statute, that infant ap­
pellants were not eligible to attend any of the eighteen 
“ white”  elementary schools solely because of their race 
and color (R. 12, 24), but that they were eligible to 
attend the equivalent public schools maintained for Negro 
children in the City of Topeka (R. 11, 12). The Attorney 
General of the State of Kansas filed a separate answer 
defending the validity of the statute in question (R. 14).

The court below was convened in accordance with Title 
28, United States Code, §2284 and on June 25-26 a trial 
on the merits took place (R. 63 et seq.). On August 3, 
1951, the court below filed its opinion, 98 F. Supp. 797 (R. 
238-244), its findings of fact (R, 244-246), and conclusions 
of law (R. 246-247), and entered a final judgment and de­
cree in appellees’ favor denying the relief sought (R. 247).

Appellants filed a petition for appeal on October 1, 
1951 (R. 248), and an order allowing the appeal was duly 
entered (R, 250). Probable jurisdiction was noted on 
June 9, 1952 (R, 254). Jurisdiction of this Court rests on 
Title 28, United States Code, §§1253 and 2201 (b).



4

The Statute Involved

Segregated elementary schools in Topeka, Kansas, are 
maintained solely pursuant to the authority of Section 
72-1724 of the General Statutes of Kansas (1949) which 
reads as follows:

Powers of hoard; separate schools for white and 
colored children; manual training. The hoard of edu­
cation shall have power to elect their own officers, 
make all necessary rules for the government of the 
schools of such city under its charge and control and 
of the board, subject to the provisions of this act and 
the laws of this state; to organize and maintain sep­
arate schools for the education of white and colored 
children, including the high schools in Kansas City, 
Kans.; no discrimination on account of color shall he 
made in high schools except as provided herein; to 
exercise the sole control over the public schools and 
school property of such city; and shall have the power 
to establish a high school or high schools in connec­
tion with manual training and instruction or other­
wise, and to maintain the same as a part of the public- 
school system of said city. (G. S. 1868, Ch. 18, §75; 
L, 1879, Ch. 81, §1; L. 1905, Ch. 414, §1; Feb.'28; 
R. S. 1923, §72-1724.)

The Question Presented

The question presented by this appeal is whether the 
State of Kansas, or indeed any State, by establishing 
racial segregation in its public elementary school system, 
has violated the equal protection of the laws clause of the 
Fourteenth Amendment to the United States Constitution.



5

SUMMARY OF ARGUMENT

This Court has never ruled directly on the constitu­
tionality of racial segregation in public elementary schools. 
Plessy v. Ferguson, 163 U. S. 537 (1896) and Gong Lum 
v. Rice, 275 U. S. 78 (1927), relied upon by the court 
below, are not controlling here.

Segregation in State-supported educational institutions 
violates the equal protection of the laws guaranteed by 
the Fourteenth Amendment in that it is an inadmissible 
classification. This Court has consistently rejected dif­
ferential treatment by State authority predicated upon 
racial classifications or distinctions.

The finding of the lower court that Negro children are 
disadvantaged by the segregated public school system 
necessitates granting the relief requested. That which is 
unequal in fact cannot be equal in law and, therefore, 
segregation and equality cannot co-exist in public educa­
tion.



6

P O I N T  I

The validity under the equal protection of the 
laws clause of the Fourteenth Amendment of racial 
segregation in public educational facilities has never 
been decided by this Court.

The issue now squarely before this Court is whether 
the State of Kansas, pursuant to statute, may maintain 
and operate racially segregated public elementary schools, 
without heed to the damage inflicted by segregation upon 
its Negro victims. Despite the transcendent importance of 
the question, this Court has never ruled directly on the 
constitutionality of racial segregation in public education. 
The Court has ruled on related problems, such as the 
validity of racial segregation in transportation and in 
housing. Kegretfully, it has, but always in dictum, ap­
peared to accept racial segregation where the validity of 
segregation was not actually before the Court. Historically, 
these dicta reflect the fact that prior to World War I, the 
status of the American Negro was such that he could make 
no realistic demand for equality of treatment in those sec­
tions of the country in which he lived in substantial num­
bers. Because of his depressed economic condition and 
concentration in agriculture, his children could not even 
obtain the most elementary education. Myrdal, An Ameri­
can Dilemma, Ch. 8-9 (1944).

Following the adoption in 1868 of the Fourteenth 
Amendment, the earliest case in which some reference was 
made by this Court to racial segregation in education was 
Hall v. DeCuir, 95 U. S. 485 (1878). That ease involved 
the validity of a State statute prohibiting segregation in



7

public carriers. The statute was declared unconstitutional 
as an improper regulation of foreign and interstate com­
merce. In a concurring opinion, Mr. Justice Clifford re­
viewed with approval the conclusions of a number of 
State cases which had upheld the reasonableness of racial 
segregation in education and stated in dictum that segre­
gation in the public schools did not violate the Fourteenth 
Amendment if physically equal facilities for Negroes were 
provided. It is probably unnecessary for us to note that 
no evidence was offered in that ease, because it would have 
been irrelevant, that school segregation must in fact in­
volve inequality.

In 1896 this Court decided Plessy v. Ferguson, 163 
U. S. 537 (1896), which sustained the constitutionality of 
a Louisiana statute requiring public carriers to furnish 
separate but equal coach accommodations for whites and 
Negroes. The Court as before, in dictum, cited with ap­
proval several old State cases which had held that a State 
could require the segregation of racial groups in its edu­
cational system.

The constitutionality of “ separate but equal”  facili­
ties in education was concededly not before the Court in 
either the Hall or the Plessy cases. Yet, although there 
was no evidentiary or psycho-sociological basis for a dis­
cussion of equal facilities in education, and in spite of the 
fact that the statements of the Court were clearly dicta, 
the Plessy case has been cited to this date by State and 
lower Federal courts to sustain the constitutionality of 
segregation in public educational institutions. See cases 
cited, 46 Mich. L. Rev. 639, 643 (1948).

Three years later, this Court decided Gumming v. 
County Board of Education, 175 U. S. 528 (1899). There 
an injunction was sought to restrain a board of education



8

in Georgia from maintaining a high school for white chil­
dren where none was maintained for Negro children. The 
State court had upheld the board, saying that its alloca­
tion of funds did not involve bad faith or abuse of dis­
cretion. In affirming the decision of the State court, this 
Court speaking through Mr. Justice Harlan, the lone dis­
senter in Plessy, stated expressly that racial segregation 
in the school system was not in issue. (542, 546)

The next case before this Court which involved com­
pulsory educational segregation was Berea College v. 
Kentucky, 211 U. S. 45 (1908), wherein the validity of a 
State statute which prohibited domestic corporations from 
teaching white and Negro pupils in the same private edu­
cational institution was attacked. While the scope of the 
statute was broad enough to include individuals as well 
as corporations, this Court said:

. . .  it is unnecessary for us to consider anything 
more than the question of its validity as applied to 
corporations. . . . Even if it were conceded that its 
assertions of power over individuals cannot be sus­
tained, still it must be upheld so far as it restrains 
corporations. (54)

This Court agreed with the reasoning of the State 
^court that the statute could be upheld as coming within 
the power of a State over one of its own corporate crea­
tures. The statute was not deemed to have worked a dep­
rivation of property rights. The rights of individuals were 
not considered.1

1 Interestingly, since the decisions of this Court in Sweatt v. 
Painter, 339 U. S. 629 (1950) and in McLaurin v. Oklahoma, 
339 U. S. 637 (1950), Berea College accepts Negro students.



9

Not until 1927 did racial classification in educational 
institutions again become the subject of controversy be­
fore this Court. In Gong Lum v. Rice, 275 U. S. 78 (1927), 
a Chinese girl contested the right of the State of Missis­
sippi to assign her to a Negro school under the State’s 
segregated school system. Mississippi contended that 
under its statute requiring separate schools to be main­
tained for children of the white and colored races, the 
plaintiff could not insist on being classed with the whites 
and that the legislature was not compelled to provide 
separate schools for each of the non-white races.

The issue of segregation was not presented in that 
case. The plaintiff accepted the system of segregation in 
the public schools of the State but contested her classifi­
cation within that system.

Nor was the validity of segregation before the Court 
in the case of Missouri ex rel. Gaines v. Canada, 305 U. S. 
337 (1938). There the petitioner was refused admission 
to the University of Missouri Law School, a State-sup­
ported institution, solely because he was a Negro. He 
brought mandamus to compel the University to admit him. 
The State, having no law school for Negroes, sought to 
fulfill its obligation to provide equal educational facilities 
by offering to pay the petitioner’s tuition for a legal edu­
cation in another State. This the Court held did not sat­
isfy the constitutional requirement. It said that the peti­
tioner was entitled to be admitted to the University of 
Missouri Law School in the absence of other and proper 
provision for his legal training within the State of Mis­
souri. The issue wTas whether an otherwise qualified Negro 
applicant for law training could be excluded from the 
only State-supported law school. This Court assumed that



1 0

the validity of equal facilities in racially separate schools 
was settled by earlier decisions and cited the Plessy case, 
McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151 
(1914), both of which involved segregation in public car­
riers, and the Gong Lum case. But the constitutional 
validity of segregation was not decided.

The next consideration of a related problem was in 
1948 in Sipuel v. Board of Regents of the University of 
Oklahoma, 332 U. S. 631. This Court, in a per curiam 
decision, said that the State must provide law school fa­
cilities for the Negro petitioner “ in conformity with the 
equal protection clause of the Fourteenth Amendment and 
provide it as soon as it does for applicants of any other 
group”  (633). The facts in the Sipuel case were similar 
to those in the Gaines case, in that no law school facilities 
were afforded Negroes by the State of Oklahoma.

Segregation was not at issue in the Sipuel case. This 
Court stated in Fisher v. Hurst, 333 U. S. 147 (1948), that:

The petition for certiorari in Sipuel v. University 
of Oklahoma did not present the issue whether a state 
might not satisfy the equal protection clause of the 
Fourteenth Amendment by establishing a separate 
law school for Negroes. On submission, we were 
clear it was not an issue here. (150)

The most recent cases involving segregation in public 
institutions of learning were Sweatt v. Painter, 339 U. S. 
629 (1950) and McLaurin v. Oklahoma State Board of 
Regents, 339 U. S. 637 (1950). Although the petitioners 
and numerous amici in those cases urged this Court to rule 
expressly that discrimination inevitably results from en­
forced segregation in educational institutions, the Court did 
not reach that question. In Sweatt, Mr. Chief Justice Yin- 
son, speaking for a unanimous Court, said, “ Nor need we



1 1

reach petitioner’s contention that Plessy v. Ferguson 
should be reexamined in the light of contemporary knowl­
edge respecting the purposes of the Fourteenth Amend­
ment and the effects of racial segregation”  (636). The 
judgment of the court below was reversed and the Uni­
versity of Texas Law School was ordered to admit the 
petitioner because equivalent educational opportunity was 
not afforded by the hastily organized Negro law school.

In McLaurin, again speaking for a unanimous bench, 
Mr. Chief Justice Vinson expressly limited the decision:

In this case, we are faced with the question whether 
a state may, after admitting a student to graduate 
instruction in its state university, afford him different 
treatment from other students solely because of his 
race. We decide only this issue . . . (638)

Thus in no case previously before this Court, in which 
racial segregation in public education has been the subject 
of comment in an opinion, has the Court felt called upon 
to rule squarely on the issue: Does segregation in public 
educational institutions meet the requirements of the equal 
protection of the laws clause of the Fourteenth Amend­
ment?

We emphasize that absence of a specific ruling at the 
outset of this brief because of the thread of urgency 
running through the fabric of much previous argument 
on the crucial issue in this case, namely, that the “ sepa­
rate but equal”  doctrine, as it has been thought to apply 
to public educational institutions, should be “ overruled” . 
Indeed, in that framework, there is nothing to overrule. 
But there are dicta which must be disavowed. The con­
stitutionality of segregation in educational institutions 
was clearly not involved in Plessy or Gong Lum, the two 
cases relied upon by the court below.



1 2

P O I N T  II

Racial segregation in public educational institu­
tions is an unconstitutional classification under the 
equal protection of the laws clause of the Fourteenth
Amendment.

This Court’s decisions in eases involving the constitu­
tionality of governmental action reveal a special scrutiny 
and constant vigilance in those instances where such ac­
tion was predicated upon alleged racial distinctions or 
where racial classifications were involved. Except in 
times of overriding peril or crisis, this Court has rejected 
all obvious or devious efforts to establish racial or reli­
gious lines of demarcation for the enjoyment of civil 
rights.

Whereas in cases involving other types of legislative 
classifications, the “ one who assails the classification . . . 
must carry the burden of showing that it does not rest 
upon any reasonable basis” , Lindsley v. Natural Carbonic 
Gas Co., 220 U. S. 61, 79 (1911), “ all legal restrictions 
which curtail the civil rights of a single racial group are 
immediately suspect” . Korematsu v. U. 8., 323 U. S. 214, 
216 (1944).

Again, “ only the most exceptional circumstances can 
excuse discrimination on that basis in the face of the 
equal protection clause.”  Oyama v. California, 332 U. S. 
633, 646 (1948). In Hirabayashi v. U. 8., 320 U. S. 81 
(1943), this Court said:

Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free 
people whose institutions are founded upon the doc­



13

trine of equality. For that reason, legislative classi- 
cation or discrimination based on race alone has 
often been held to be a denial of equal protection. 
( 100)

In the application of these principles, the Court has, 
with one exception (discussed infra), always declared gov­
ernmental classification based on race or color to be con­
stitutionally invalid.

This Court has ruled that Negroes must be treated the 
same as whites with respect to the privilege and duty of 
jury service. Strauder v. West Virginia, 100 U. S. 303 
(1880). It has stricken down state statutes aimed at keep­
ing the Negro “ in his place.”  Bailey v. Alabama, 219 
U. S. 219 (1911); U. S. v. Reynolds, 235 U. S. 133 (1914). 
Common carriers engaged in interstate travel have been 
prevented from segregating and discriminating on the 
basis of race or color. Mitchell v. U. 8., 313 IT. S. 80 
(1941) ; Morgan v. Virginia, 328 U. S. 373 (1946); Hen­
derson v. U. 8., 339 IT. S. 816 (1950). Repeated instances 
of prejudice in criminal cases evidenced by brutal treat­
ment of Negroes have been condemned. Brown v. Mis­
sissippi, 297 IT. S. 278 (1936); Chambers v. Florida, 
309 IT. S. 227 (1940); Shepherd v. Florida, 341 U. S. 50 
(1951). Racial segregation through zoning and attempts 
to institutionalize ghettos by restrictive covenants have 
been outlawed. Buchanan v. Warley, 245 IT. S. 60 (1917); 
Shelley v. Kraemer, 334 IT. S. 1 (1948). Discrimination 
has been forbidden in labor unions that receive their col­
lective bargaining and representation powers by virtue 
of statute. Steele v. Louisville & Nashville R,ailroad Co., 
323 IT. S. 192 (1944); Tunstall v. Brotherhood of Locomo­
tive Firemen, 323 U. S. 210 (1944); Brotherhood of R. R. 
Trainmen v. Howard, — U. S. — , 72 S. Ct. 1022 (1952).



14

From time to time, this Court has stricken down all the 
various devices used to prevent or limit Negroes from 
participating in elections. Guinn v. U. S., 238 U. S. 347 
(1915); Nixon v. Herndon, 273 U. S. 536 (1927); Smith v. 
Allwright, 321 U. S. 649 (1944). So, too, laws which in 
their administration have effected a limitation or denial 
of the right to carry on a business or calling because of 
race or ancestry, have been declared unconstitutional. 
Tick Wo v. Hopkins, 118 U. S. 356 (1886); Yu Cong Eng 
v. Trinidad, 271 F. S. 500 (1926); Takahashi v. Fish and 
Game Commission, 334 U. S. 410 (1948).

In Buchanan v. Warley, 245 U. S. 60, which involved a 
racial residential zoning ordinance, the State invoked its 
authority to pass laws in the exercise of its police power, 
and urged that this compulsory separation of the races 
in habitation be sustained because it would “ promote the 
public peace by preventing race conflicts”  (81). This 
Court rejected that contention, saying:

The authority of the state to pass laws in the exercise 
of the police power . . .  is very broad . . . [and] the 
exercise of this power is not to be interfered with by 
the courts where it is within the scope of legislative 
authority and the means adopted reasonably tend to 
accomplish a lawful purpose. But it is equally well 
established that the police power . . . cannot justify 
the passage of a law or ordinance which runs counter 
to the limitations of the Federal Constitution . . . (74).

The police power of the State, broad as it is, does not 
justify a racial classification where rights created or pro­
tected by the Constitution are involved.

In Shelley v. Kraemer, 334 F. S. 1, this Court, by 
unanimous decision, held that the enforcement of racial 
restrictive covenants by State courts is State action,



15

prohibited by the equal protection clause of the Four­
teenth Amendment. In the course of its decision, the 
Court measurably strengthened the equal protection clause 
as a formidable barrier to restrictions having the effect 
of racial segregation. The contention was there pressed 
that since the State courts stand ready to enforce racial 
covenants excluding white persons from occupancy or 
ownership, enforcement of covenants excluding Negroes 
is not a denial of equal protection. This Court rejected 
the equality of application argument, decisively dismissing 
it in the following language:

This contention does not bear scruitiny. . . . The 
rights created by the first section of the Fourteenth 
Amendment are, by its terms, guaranteed to the 
individual. The rights established are personal rights. 
It is, therefore, no answer to these petitioners to say 
that the courts may also be induced to deny white 
persons rights of ownership and occupancy on grounds 
of race or color. Equal protection of the laws is not 
achieved through indiscriminate imposition of in­
equalities. (21, 22)

There has been but one recent departure from this rule. 
This Court stated that “ in the crisis of war and of 
threatened invasion”  when the national safety might 
appear to be imperilled, it will permit a racial classifica­
tion by the Federal Government. Hirabayashi v. U. 8 ., 
320 U. S. 81, 101. That case involved a prosecution for 
failure to obey a curfew order directed against citizens 
of Japanese ancestry. Korematsu v. U. 8., 323 U. S. 214, 
arising out of the same war emergency, involved the 
validity of a governmental order excluding all persons of 
Japanese ancestry from the West Coast military area. 
The Court, on the grounds of overriding pressing public 
urgency in time of war, sustained the racial classification



16

in these cases, but it emphasized that this was an ex­
traordinary exception. “  [Legislative classification or dis­
crimination based on race alone has often been held to 
be a denial of equal protection. . . . We may assume” , 
continued the Court, “ that these considerations would be 
controlling here were it not for the fact that the danger 
of espionage and sabotage, in time of war and of threat­
ened invasion”  has made necessary this racial classi­
fication, which “ is not to be condemned merely because 
in other and in most circumstances racial distinctions are 
irrelevant.”  Hirabayashi v. TJ. 8., supra, 101.

Clearly, State laws providing for racial segregation in 
public educational facilities are not accompanied by any 
“ pressing public necessity” . The record here is barren 
of any such showing, as indeed it would have to be. Rather, 
there is a pressing public necessity to give all American 
citizens their due—equality of opportunity to use educa­
tional facilities established by the State for its inhabitants.

P O I N T  I I I

The finding of the court below, that Negro chil­
dren are disadvantaged by the segregated public 
school system of Topeka, requires this Court to dis­
avow the “separate but equal” doctrine as it has 
been applied to public educational institutions.

In one vital respect, the problem posed by this record 
is sharpened to the point of unique narrowness. The un­
challenged finding that segregation irreparably damages 
the child lifts this case out of the murky realm of specu­
lation on the issue of “ equality”  of facilities, into the



17

area of certainty that segregation and equality cannot 
co-exist. That which is unequal in fact cannot be equal in 
law.

It is respectfully submitted that the finding of the court 
below, that Negro children were disadvantaged by the 
segregation of white and colored students in the public 
elementary schools, requires this Court to reverse the 
lower court’s refusal to grant the requested relief. The 
lower court found as a fact that the segregation of white 
and Negro children in the public schools “ has a detri­
mental effect upon the colored children” ; that such segre­
gation creates in Negro children a “ sense of inferiority”  
which “ affects the motivation of a child to learn” ; that 
legally sanctioned segregation “ therefore has a tendency 
to retard the educational and mental development of 
[N]egro children and to deprive them of some of the 
benefits they would receive in a racially integrated school 
system. ’ ’

Educators and social scientists have long proclaimed 
that these and other social evils necessarily flow from 
racially segregated education. Segregation in Public 
Schools—A Violation of “ Equal Protection of the Laws” , 
56 Yale L. J. 1059, 1061 (1947). See also Long, Some 
Psychogenic Hazards of Segregated Education of Negroes, 
4 J. of Negro Ed. 336, 343 (1935); Long, The Intelligence 
of Colored Elementary Pupils in Washington, D. C., 3 J. 
of Negro Ed. 205-222 (1934); Gallagher, American Caste 
and the Negro College, 109, 184, 321-2 (1938); Bond, Edu­
cation of the Negro in the American Social Order, 385 
(1934); President’s Commission on Higher Education, 
2 Higher Education for American Democracy 35 (1947); 
Heinrich, The Psychology of a Suppressed People, 52, 57-



18

61 (1937); Myrdal, An American Dilemma, 54-5, 97-101,
577-8, 758; Frenkel-Brunswik, A Study of Prejudice in 
Children, 1 Human Relations 295, 305 (1948); Goodman, 
Race Awareness in Young Children (1952); Adorno, 
Frenkel-Brunswik, Levinson and Sanford, The Authori­
tarian Personality, Ch. IV, Y (1950).

Whenever this Court has been presented with a record 
that established inequality in fact as between educational 
opportunities offered by the State to its white and Negro 
inhabitants, it has ordered the immediate termination of 
the inequality. Missouri ex rel. Gaines v. Canada, 305 IT. S. 
337; Sipuel v. Board of Regents, 332 IT. S. 631; Fisher v. 
Hurst, 333 U. S. 147; Sweatt v. Painter, 339 IT. S. 629. 
In McLaurin v. Oklahoma, 339 IT. S. 637, this Court went 
even further to hold that officially imposed racial segre­
gation within a State-maintained school violated the equal 
protection clause. It is noteworthy that the court below 
said in its opinion, where “ segregation within a school 
as in the McLaurin case is a denial of due process, it is 
difficult to see why segregation in separate schools would 
not result in the same denial.”  Brown v. Board of Edu­
cation of Topeka, 98 F. Supp. 797, 800 (Emphasis added).

We respectfully urge this Court to follow the prin­
ciples it recently enunciated in Sweatt and McLaurin, 
rather than the unsound ones of Plessy and Gong Lum, 
and to hold unequivocally that racial segregation per se 
in all State educational institutions, is a violation of the 
equal protection of the laws clause of the Fourteenth 
Amendment.

The Need to Disavow Plessy

As we explained in Point I, we believe that Plessy is 
not controlling. Assuming, arguendo, that the court below 
was justified by Plessy in refusing to hold that segregation



19

in public elementary schools is per se discrimination under 
the Fourteenth Amendment, this Court should now ex­
pressly overrule Plessy and reverse the court below. This 
Court has not hesitated in the past to overrule or recon­
sider and reverse earlier decisions where the nature and 
consequences of discrimination became fully disclosed or 
apparent upon later consideration. Murdoch v. Pennsyl­
vania, 319 U. S. 105 (1943), reversing Jones v. Opelika, 
316 U. S. 584 (1942); West Virginia State Board of Edu­
cation v. Barnette, 319 U. S. 624 (1943), overruling Miners- 
ville School District v. Gobitis, 310 U. S. 586 (1940); Smith 
v. Allwright, 321 U. S. 649, overruling Grovey v. Townsend, 
295 U. 8. 45 (1935). “ In constitutional questions, where 
correction depends upon amendment and not upon legis­
lative action this Court through its history has freely 
exercised its power to reexamine the basis of its constitu­
tional decisions.”  Smith v. Allwright, supra, 655 and cases 
cited in footnote 10 thereto.

Lower courts, State and federal, have indicated clearly 
that they believe a break with the “ separate but equal”  
doctrine in education is “ in the wind” , but they insist 
that they must await such a holding by this Court. Belton 
v. Gebhart, decided by the Delaware Court of Chancery, 
April 1, 1952, affirmed by the Supreme Court of that State 
on August 28, 1952; Banks v. San Francisco Housing 
Authority, decided October 1, 1952, by the Superior Court 
of San Francisco; Brown v. Board of Education of To­
peka, 98 F. Supp. 797, 798; Briggs v. Elliott, 98 F. Supp. 
529, 535 (1951).

It is not surprising that American courts are ques­
tioning the validity of Plessy in view of the tremendous 
changes which have taken place since the turn of the cen­
tury in the understanding of the nature of the individual



20

and his relationships to racial groupings and to society. 
Scientific research in the fields of anthropology, sociology, 
biology and education has demonstrated the fallaciousness 
of the racial and blood strain concepts which are basic 
to the majority opinion in Plessy.

Peaceful Integration Will Follow

The defenders of racial segregation have frequently 
expressed the fear that compulsory destruction of the bar­
riers in the public schools would increase racial tensions 
and even cause strife. Such results, obviously, should be 
avoided if possible, without yielding constitutional prin­
ciples. Experience, however, has clearly demonstrated 
that these dire predictions are unfounded.

Following this Court’s decision in McLaurin v. Okla­
homa, 339 U. S. 637, Negro students applied for admission 
and were admitted in large numbers to that State’s col­
leges and universities. By June 1951, approximately 400 
Negroes were enrolled at the University of Oklahoma and 
at Oklahoma A & M, all without the slightest increase in 
racial tension, but rather with every sign of increased 
mutual understanding and respect. The Oklahoma City 
Daily Oklahoman, June 7, 1951.

In Texas, after the decision in Sweatt v. Painter, 339 
U. S. 629, two Negroes were admitted to the University 
of Texas Law School and two others were admitted to the 
Dental School. 52 American Jewish Yearbook 42 (1951); 
The Houston Chronicle, Sept. 10, 1952. Negroes have also 
been admitted to private institutions of higher learning 
in Texas following Sweatt, Southern Methodist Univer­
sity (The Houston Post, January 9, 1951), Amarillo Col­
lege (Dallas Times Herald, October 2, 1951) and several 
other junior colleges (The Houston Informer, December 
5, 1951) have all found that the admission of Negroes was



2 1

possible without any adverse effect upon interracial rela­
tions. Quite the contrary. The Austin Statesman of No­
vember 14, 1950, reported the white students at Southern 
Methodist University advised the president that “ SMU 
student opinion favors admitting Negroes to the school.”

The University of Arkansas has accepted Negroes for 
LL.B. and M.D. degrees. Little Rock Arkansas Gazette, 
July 1, 1951; New York Post, August 24, 1948. Notwith­
standing the fact that the University of Florida has thus 
far refused to admit Negroes, the Florida Student Gov­
ernment Association, an organization of student leaders 
representing all colleges and universities in the State, 
unanimously passed a resolution calling for an immediate 
end to racial segregation in the State’s institutions of 
higher learning. Miami Herald, May 6, 1951. The Uni­
versity of Kentucky since 1949 has enrolled Negro stu­
dents. New York Herald Tribune, June 23, 1949. By 
July 1950, twelve Negroes were attending classes at the 
University and “ [t]hey took their places quietly in the 
student body without any open hostility.”  Dawkins, Ken­
tucky Outgrows Segregation, The Survey, July 1950. Pri­
vate educational institutions have followed the lead of the 
University of Kentucky. Berea College led the way. Three 
Roman Catholic colleges in Louisville, Nazareth, Ursuline 
and Bellarmine Colleges, immediately followed suit. Next 
to fall in line was the University of Louisville with a stu­
dent body of seven thousand. Southern Baptist Theologi­
cal Seminary and Louisville Theological Seminary now 
also admit Negroes on an unsegregated basis.

In July 1950, the first Negroes were admitted to the 
University of Missouri and less than two years later a 
Negro was appointed to the faculty. St. Louis Post-



2 2

Dispatch, July 7, 1950; St. Louis Globe-Democrat, April 
17, 1952. St. Louis University has admitted Negroes to 
all its facilities for the past few years. They have been 
fully integrated into the University program with no 
unhappy results. During the academic year 1950-51, a 
total of 351 Negro students was enrolled and there were 
five Negro faculty members. The experience of institu­
tions like St. Louis University has demonstrated that the 
admission of Negro students poses no problem of accept­
ance by white students. Morisey, A New Trend in Private 
Colleges, New South, Aug.-Sept. 1951. Another private 
university in St. Louis, Washington University, admits 
Negroes to all its branches and schools. St. Louis Post- 
Dispatch, May 11, 1952. Its experience has been identical 
with that of St. Louis University.

In July 1951, the University of North Carolina ad­
mitted its first Negro student. Washington Times-Herald, 
July 17, 1951. The following September, six additional 
Negro students attending the University, were excluded 
from the regular student cheering section at a football 
game. When the entire student body protested this action 
by the University authorities, it was quickly reversed. 
New York Herald Tribune, September 28, 1951.

Since 1951, the University of Virginia has been ad­
mitting Negro students and “ the formerly 'all-white’ 
schools which have accepted Negro students have found 
that their presence creates no special problem” . Rich­
mond News Leader, September 25, 1952.

The College of William and Mary, which next to Har­
vard University is the oldest of the country’s colleges, 
has admitted two Negro students, both of whom are 
attending regular day classes. According to President



23

Chandler, “ [t]he presence of these two Negro graduate 
students has not created any special problems on the 
campus.”  Ibicl.

By July 1951, there were approximately one thousand 
Negro students in previously “ all-white”  institutions of 
higher education in the South. “ They have encountered 
virtually no open objection to their presence.”  Saveth, 
The Supreme Court and Segregation, The Survey, July 
1951.

Just as the admission of Negroes to formerly “ all- 
white”  colleges and universities has created no friction 
or other difficulties, so too experience has proved that in­
tegration of white and Negro children at the elementary 
and high school levels can be aeieved without incident.

In the State of New Mexico where segregation is al­
lowed, though not required, in the public schools, the town 
of Carlsbad maintained separate schools for the two races 
until 1951. Following the refusal of the State School 
Board to accredit the inferior Negro high school, the local 
school authorities voted to admit Negroes to the “ white”  
school. ‘ ‘ Carlsbad white students approved the move. The 
1951 graduating class and the high school senior council 
voted unanimously to welcome the Negro students. The 
junior and senior class and faculty members were 95 per 
cent in favor of it.”  Santa Fe New Mexican, September 2, 
1951. The integration has not caused a single untoward 
incident to date. Furthermore, racial segregation was 
abolished in Alamagordo’s public schools in August of 
this year and the first Negro teacher was hired to teach 
in that New Mexico city’s integrated public schools. There 
has been no disharmony as a result of either action.



24

Racial segregation in public schools is not required in 
Arizona. Local school boards are free to determine 
whether or not they will maintain a dual educational 
system. Under this local option provision, segregation has 
been abandoned in the public schools of every city and 
town in the State except Phoenix. The transition from 
segregation to integration was made in all these communi­
ties without any difficulty.

Despite the fact that segregation in public schools has 
been banned in Illinois for many years, segregation was. 
the practice in most of the southern counties. A 1949 
State statute provided that, no State funds should be made 
available to any school district where racial segregation 
of students is practiced. This statute led to a movement 
to abolish segregation in the southern communities of 
Illinois. Notwithstanding an 85-year-old policy of racial 
segregation in the public schools of East St. Louis, the 
local board of education abandoned segregation and 
adopted a policy of integration. There was “ no indication 
of any organized resistance to the change”  which was 
effected without incident. The New York Times, January 
30, 1950. Segregation in public schools was also abandoned 
in Harrisburg (Chicago Sun-Times, September 26, 1950), 
in Alton, a stronghold of racial discrimination even dur­
ing World War II (Pittsburgh Courier, December 1, 1951), 
and in Cairo at the southernmost tip of the State.

A similar process of uneventful integration is under­
way in southern Ohio. In Glendale, a town about fifteen 
miles from the Kentucky border, segregation in the public 
schools was ended in October of this year when the local 
board of education was advised that exclusion of Negro 
pupils from a formerly “ all-white”  school violated the



25

Constitution. In Dayton, the school hoard abolished segre­
gation in the use of two swimming pools at Roosevelt 
High School on June 22, 1950. Dayton Journal Herald, 
June 23, 1950.

New Jersey is another State which, while normally 
considered a Northern State, has a long-standing tradition 
of racial segregation in its southern regions. In Novem­
ber 1947, the people of New Jersey adopted a new State 
Constitution which prohibited any person from being 
“ segregated in the militia or in the public schools, because 
of religious principles, race, color, ancestry or national 
origin” . When this Constitution was adopted, cynics re­
marked that the clause against racial segregation was an 
excellent statement of principle but they predicted that 
segregation would not be eliminated for at least a genera­
tion. In 1948, the New Jersey Department of Education 
made a survey of the 52 school districts in the State which 
were reported to practice segregation in one form or an­
other. It found that in 43 districts, segregation was im­
posed by the school authorities. These districts ranged in 
size from rural areas with one-room schools to large cities 
with many schools. The end of the school year 1950-51 
saw the complete elimination of segregation in 39 of the 
43 school districts involved. In the other 4 districts, steps 
had by that time been taken and building proposals were 
underway which would bring about complete integration 
in the near future. The report of the New Jersey Depart­
ment of Education states:

A most significant factor in this transition is that 
it has been done with a minimum of friction and a 
maximum of good will.
Another important factor has been the success with 
which colored teachers, who formerly taught classes



26

consisting of all colored children, have been employed 
to teach classes of mixed races. While many indi­
vidual examples could be cited, one in particular bears 
mentioning. The one in question contained the only 
junior high school operated on a segregated basis. 
This junior high school was a fairly large institution 
and naturally existed in a good sized city. Today, the 
student body of this school is approximately one-third 
Negro and two-thirds white. The teachers who for­
merly were teaching all-Negro junior high school 
classes have been completely integrated into the new 
setup and include teachers of all regular and special 
subjects. The morale of both the student body and 
faculty is excellent. Biennial Report for the Years 
July 1, 1949, to June 30, 1951, State of New Jersey, 
Department of Education, Division Against Discrimi­
nation 12, 13.

On the basis of the accumulated experience, instances 
of which we have described above, we are convinced that 
integration can and will be accomplished in the public 
schools of the South without “ bloodshed and violence”  
if the law enforcement agencies, federal or local, demon­
strate that they will not tolerate breaches of the peace or 
incitement. Americans are law abiding people and abhor 
klanism and violence.

Segregation Is An Economic Waste

There is another cogent reason that this Court should 
speak out clearly and definitively now. Since the ‘ ‘ separate 
but equal”  doctrine in public education will have to be 
abandoned ultimately, it should be abandoned sooner 
rather than later, to forestall the wasteful expenditure by 
many States of huge sums of money to build segregated 
schools when that money could be used more economically 
and enduringly to build and improve public schools where 
they will provide the greatest good for the greatest num­
ber. This we believe is a necessary consequence of the 
constitutional requirement that the State must grant each 
person equal protection of its laws.



27

The President’s Committee on Civil Rights, in its his­
toric report, To Secure These Rights (1947), states:

The South is one of the poorer sections of the country 
and has at best only limited funds to spend on its 
schools. With 34.5 percent of the country’s popula­
tion, 17 southern states and the District of Columbia 
have 39.4 percent of our school children. Yet the 
South has only one-fifth of the taxpaying wealth of 
the nation. Actually, on a percentage basis, the South 
spends a greater share of its income on education than 
do the wealthier states in other parts of the country. 
(63)

The South has been struggling under a heavy financial 
burden to support its educational system, with the Negro 
schools admittedly inferior to the white. The southern 
States would have to expend over one and one-half billion 
dollars to bring the Negro schools to the level of the 
“ white”  schools and, in addition, approximately eighty-one 
million dollars annually just to maintain parity. Charles 
H. Thompson, Dean, Graduate School of Howard Univer­
sity, Letter to the Editor, The New York Times, April 6, 
1952. This additional burden is beyond the capacity of 
the South to bear. Bond, in Education of the Negro in the 
American Social Order (1934) sums this up:

If the South had an entirely homogeneous population, 
it would not be able to maintain schools of high 
quality for the children unless its states and local 
communities resorted to heavy, almost crushing rates 
of taxation. The situation is further complicated 
by the fact that a dual system is maintained. Con­
sidering the expenditures made for Negro schools, it 
is clear that the plaint frequently made that this dual 
system is a burden is hardly true; but it is also_ clear 
that if an honest attempt were made to maintain 
“ equal, though separate schools” , _thc_ burden would 
be impossible even beyond the limitation of existing 
poverty. (231)



28

Public schools should be planned and erected as part 
of the development of the total community. They should 
be built in those areas that have expanding populations 
and needs for such facilities, rather than in opportunistic 
response to random law suits or threats of law suits, as is 
now the case in many southern States.

Conclusion

The United States is now engaged in an ideological 
world conflict in which the practices of our democracy are 
the subject of close scrutiny abroad. We cannot afford, 
nor will the world permit us, to rest upon democratic 
pretensions unrelated to reality.

The people of other lands listen not only to our Voice 
of America which quite properly extols the virtues of 
democracy; they listen to broadcasts from Communist 
sources as well. We know that our enemies seize eagerly 
upon the weaknesses of our democracy and, for propa­
ganda purposes, magnify, exaggerate and distort hap­
penings in the United States. Not so well known, although 
possibly more significant, is that the liberal and conserva­
tive press abroad is constantly comparing our declara­
tions and statements about democracy with our actual 
practices at home. Domestic incidents are noted and com­
mented upon. Our discriminatory practices in education, 
in employment, in housing, have all been the subject of 
much adverse press comment in those foreign countries 
which we are trying to keep in the democratic camp.

While McGee v. Mississippi, 40 So. 2nd 160 (1949), was 
the subject of some considerable comment in Communist 
circles here and elsewhere, the Paris office of the American



29

Jewish Committee assembled characteristic press comment 
from liberal, conservative and Catholic European news­
papers :

Semailles, a liberal Marseilles newspaper, said on May 
18, 1951:

In associating ourselves with the United States in the 
defense of liberty, we have included in the notion of 
liberty, a respect for all human beings, the notion of 
the common fraternity of all men. And it appears 
that in this association, we, too, have much to bring. 
What the world awaits from us is not cannons and 
atomic bombs, but the permanent and vigilant affirma­
tion of the inalienable right of all men to be judged 
according to their acts and not according to the color 
of their skin or the latitude in which they were born. 
Otherwise, where is the difference between our enemies 
and ourselves ?

An editorial, entitled “ An American Tragedy” , in the 
Vienna Arbeiter-Zeitung, one of the staunchest anti-Com- 
munist publications in Europe, said on February 4, 1951:

The Communist reply to accusations made about the 
injustices and cruelties of their dictatorship, of forced 
labor, of the arbitrariness of their courts and their 
violation of human dignity, by pointing to the in­
sincerity of American democracy which permits racial 
persecution and deprives millions of human beings of 
their equal rights on the basis of the color of their 
skin.

One cannot appear before the world as a fighter for 
freedom and right when one is unable to eliminate 
injustice in one’s own house.

L ’Aube, Paris organ of the Popular Republican Move­
ment (MRP), the second largest political party in France, 
led by Georges Bidault and Foreign Minister Robert Schu- 
man, in its May 9, 1951, issue said:



30

How much does a Negro weigh in a world where 
people of all colors are struggling with the bitter 
forces of nature and societies? Why is there so much 
noise about a trial which after all is an internal affair, 
not only of the United States of America, but of one 
of its states? He weighs exactly that of all those 
whose lot it is to protest an injustice. And the in­
justice in this instance has as its name, racism. Our 
reaction to injustice does not depend on the region of 
the world where the wrong was committed. It is the 
more bitter to know that it took place in a continent 
which gave for liberty enough of its sons not to 
deliver up to hatred of a poor Negro; that is what 
weighs heavily.

On April 7, 1950, the Cologne Welt Tier Arbeit, official 
publication of the anti-Communist German trade unions, 
carried an article entitled, “ The Negro Question in the 
IT. S.”  That article contained the following significant 
language:

In recent weeks, one found in the German press the 
following items: In Frankfurt-am-Main the proprietor 
of a cafe was fined 600 DM by American Occupation 
Authorities because he had ejected two colored Ameri­
can soldiers from his establishment. In Washington, 
the Capital of the IJ. S. A., Doctor Bunche, who made 
a name for himself as the UN intermediary in Pales­
tine, was refused admittance to a movie house because 
he was colored. He then went to another movie house 
where he spoke French and was admitted because it 
was believed he was a foreigner. In the one case, the 
American authorities want foreigners to treat every 
colored soldier with dignity as an American citizen 
and punish any transgression of this principle. On 
the other hand, world-famous leaders of the colored 
population are deprived of their full equality. How 
are these two attitudes to be reconciled? It is only 
too natural that the average European can make no 
sense of such contradictions. The racial attitudes in 
the U. S. have no parallel in the entire world.



31

And finally, we have the following quotation from the 
liberal Le Matin of Antwerp, Belgium, in May 1951:

The crime of racism is odious. And, without doubt, 
the world will never know true peace while there exist 
nations, peoples or races that believe themselves su­
perior to other nations, peoples or races. It is a pain­
ful declaration to make at the moment when our 
American friends are presenting themselves in the 
United Nations as the sturdy defenders of the free 
world.

Legally imposed segregation in our country, in any 
shape, manner or form, weakens our program to build 
and strengthen world democracy and combat totalitarian­
ism. In education, at the lower levels, it indelibly fixes 
anti-social attitudes and behavior patterns by building 
inter-group antagonisms. It forces a sense of limitation 
upon the child and destroys incentive. It produces feel­
ings of inferiority and discourages racial self-appreciation.



32

For all of the reasons urged herein, State-imposed racial 
segregation in public schools, denies to the appellants 
herein, and to all similarly situated Negro children, equal 
protection of the laws in every meaningful sense of those 
words.

The judgment of the court below should be reversed.

Respectfully submitted,

Edwin J. Lukas,
A rnold Forster,
A rthur Garfield Hays,
Frank E. Karelsen,

of the New York Bar,

Leonard Haas,
of the Georgia Bar,

Saburo Kido,
of the California Bar,

W aldo B. W etmore, 
of the Kansas Bar,

Attorneys for Amici Curiae.

T heodore Leskes,
Sol R abkin,

of the New York Bar, 
of Counsel.

November 15, 1952



33

APPENDIX

American Civil Liberties Union

The American Civil Liberties Union is a private or­
ganization composed of individual citizens. It is devoted 
to supporting the Bill of Rights—for everybody. Founded 
in 1920, it has, day in and day out, actively championed 
the three-fold cause of civil liberties, the heart and core 
of democratic government, as set forth in the Constitution 
and the Declaration of Independence: (1) Government
by the people, grounded on freedom of inquiry and ex­
pression—speech, press, assembly and religion—for every­
body; (2) specific rights guaranteed to the people, such 
as due process and fair trial—for everybody; and (3) 
equality of the people before the law—for everybody, 
regardless of race, color, place of birth, position, income, 
political opinions, or religious belief.

The Union has no cause to serve other than civil liber­
ties. It is dedicated simply and solely to furthering the 
actual practice of democracy. It defends the civil liberties 
of everybody, including those whose anti-democratic opin­
ions it abhors and opposes, like Communists, Nazis, Fas­
cists and Ku Klux Klanners.



34

The American Ethical Union is a national association 
of Societies for Ethical Culture. Its purpose is to bring 
into close fellowship of thought and action existing Ethical 
Societies and to promote the establishment of new socie­
ties. It is thus devoted, on a national scale, as is each 
society in its local setting, to the promotion of the knowl­
edge, the love and the practice of the right in all the rela­
tionships of life. It asserts the supreme importance of the 
ethical factor in all the relations of life and affirms the 
belief that the greatest spiritual values are to be found in 
man’s relationship to man. Through its religious and edu­
cational programs it seeks to make the individual more 
adequate in his personal relationships and better able to 
contribute to the life of his community. The Ethical So­
ciety has as one of its objectives the inspiring words of 
St. Paul: “ He has made of one blood all nations of men to 
dwell on the earth.”

American Ethical Union



35

The American Jewish Committee is a corporation cre­
ated by an Act of the Legislature of the State of New 
York in 1906. Its charter states:

The object of this corporation shall be to prevent the 
infraction of the civil and religious rights of Jews, in 
any part of the world; to render all lawful assistance 
and to take appropriate remedial action in the event 
of threatened or actual invasion or restriction of such 
rights, or of unfavorable discrimination with respect 
thereto . . .

During the forty-six years of its existence it has been 
one of the fundamental tenets of the organization that the 
welfare and security of Jews in America depend upon the 
preservation of constitutional guarantees. An invasion of 
the civil rights of any group is a threat to the safety of all 
groups.

For this reason the American Jewish Committee has 
on many occasions fought in defense of civil liberties 
even though Jewish interests did not appear to be spe­
cifically involved.

American Jew ish Committee



36

Anti-Defamation League 
of

B’nai B’rith

B ’nai B ’rith, founded in 1843, is the oldest civic or­
ganization of American Jews. It represents a member­
ship of over 350,000 men and women and their families. 
The Anti-Defamation League was organized in 1913, as a 
section of the parent organization, in order to cope with 
racial and religious prejudice in the United States. The 
program developed by the League is designed to achieve 
the following objectives: to eliminate and counteract
defamation and discrimination against the various racial, 
religious and ethnic groups which comprise our American 
people; to counteract un-American and anti-democratic ac­
tivity; to advance goodwill and mutual understanding 
among American groups; and to encourage and translate 
into greater effectiveness the ideals of American democ­
racy.



37

The Japanese American Citizens League is the national 
organization of Americans of Japanese ancestry. Estab­
lished in 1930, its story is an account of a group of young 
Americans treasuring their birthright of American citizen­
ship, defending it and seeking to be worthy of it. Although 
its membership is composed primarily of Americans of 
Japanese ancestry, membership is open to all Americans 
who believe in its principles.

The purpose of the organization is to promote good 
citizenship, protect the rights of Americans of Japanese 
ancestry, and acquaint the public in general with this group 
of citizens toward their full acceptance into American life. 
The twin mottoes of “ For Better Americans in a Greater 
America”  and “ Security Through Unity”  express this 
purpose.

Japanese American Citizens League



38

Unitarian Fellowship for Social Justice

The Eev. Dr. John Haynes Holmes and a group of other 
Unitarian clergymen established the Unitarian Fellowship 
for Social Justice in 1908. They sought “ to sustain one 
another in united action against social injustice and in the 
realization of religious ideals in present-day society. ’ ’ Dr. 
Holmes served for three years as the Fellowship’s first 
president.

The Fellowship concerns itself especially with freedom 
of conscience, the rights of minorities, the defense of public 
education, and substantial efforts to strengthen the United 
Nations and to plan for peace.

The Fellowship participates in the United Unitarian 
Appeal for its funds, and it is affiliated with the American 
Unitarian Association through the Association’s Depart­
ment of Adult Education and Social Relations. The society 
has individual members, organizational affiliates, and chap­
ters throughout the United States and Canada in Unitarian 
and liberal community churches.



[ 3434-3478— SOO— 12-52 ]