Briggs v. Elliot Appellants' Brief Opposing Motion to Dismiss or Affirm No. 273

    OCTOBER TERM, 1951

S U P R E M E  COURT OF THE UN ITED  S T A T E S

No. 273

HARRY BRIGGS, JR., ET AL.,
Appellants,

R: W. ELLIOTT, Chairman, ET AL.,
Appellees

APPEAL FROM TH E UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF SOUTH CAROLINA

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS OR AFFIRM

H arold R. B oulware,
Spottswood W . R obinson, III, 
R obert L. Carter,

- T hurgood Marshall,
Counsel for Appellants.

A rthur D. Shores,
A. T. W alden,

Of Counsel.



TABLE OF CONTENTS
Page

Appellees ’ Motion to Dismiss Should Be Denied. . . .  1
Appellees’ Motion to Affirm Should Be Denied.........  5,9
Conclusion ....................................................................  9

T able of Cases

Bostwick v. Brinkerhoff, 106 U. S. 3 ............................  8
Brown v. Board of Education of Topeka, Civil Action 

No. T-316, — F. 2d — (D. C. Kansas), Decided
August 3, 1951....................................  4

Carondelet Canal & Navigation Co. v. State of Louisi­
ana, 233 U. S. 362 .............._ : .........................................  8

Cumming v. Board of Education, 175 U. S. 528.........  1
Eichole v. Public Service Commission, 306 IT. S.

268 .............................................................................  8
For gay v. Conrad, 6 How. 201 .................................... 8
Gong Lum v. Bice, 275 IT. S. 72.................................... 1
Gospel Army v. City of Los Angeles, 331 IT. S. 543... 8
Knox National Farm Loan Association v. Phillips,

300 U. S. 194..............................................................  7
Market Street Railway Co. v. Railroad Commission,

324 IT. S. 548..............................................................  7
McLaurin v. State Board of Regents, 339 U. S. 637... 1, 3,4 
McKissick v. Carmichael, 187 F. 2d 949; cert, denied

— IT. S. —, decided June 4, 1951.............................. 9
Missouri ex rel. Gaines v. Canada, 305 IT. S. 337. . . .  9
Plessy v. Ferguson, 163 FT. S. 537................................  1
Radio Station WOW  v. Johnson, 326 IT. S. 120. . . . .  . 8
Rice v. Arnold, — IT. S. —, decided Oct. 10, 1950.......  5
Sipuel v. Board of Regents of the University of Okla­

homa, 332 IT. S. 631...........................................  6
Smith v. Al hr right. 321 IT. S. 649............................  3
St. Louis, Iron Mountain and Southern Railway Co. v.

Southern Express Co., 108 IT. S. 24........................  8
Sweatt v. Painter, 339 IT. S. 629...................................  1, 4
Wilson v. Board of Supervisors, 94 L. Ed. (Ad. Op.)

200 ..........................   9
Winthrop Iron Co. v. Meeker, 109 IT. S. 180............... 7

—7079



S U P R E M E  COURT OF THE UNITED S T A T E S

OCTOBER TERM, 1951

No. 273

HARRY BRIGGS, JR., ET AL.,

vs.
Appellants,

R. W. ELLIOTT, Chairman, ET AL.,
Appellees

APPELLANTS’ BRIEF OPPOSING MOTION TO 
DISMISS AND MOTION TO AFFIRM

Appellees seek to avoid review of the decision of the 
Court below by asserting: (1) that the question of the 
validity of statutes requiring segregation. of the races in 
elementary and high schools can not be questioned in the 
light of the decisions of this Court in Plessy v. Ferguson, 
163 U. S. 537; Gumming v. Board of Education, 175 U. S. 
528; and Gong Lum v. Rice, 275 IT. S. 78; and (2) that more 
recent decisions of this Court including the cases of Sweatt 
v. Painter, 339 U. S. 629; and McLaurin v. State Board of 
Regents, 339 U. S. 637 are not applicable because the Sweatt 
case involved a law school and the McLaurin case was 
limited to graduate education.



2

Neither Plessy v. Ferguson, supra, Gumming v. Board of 
Education, supra, nor Gong Lum v. Rice, supra, preclude a 
review of the decision in this case. Plessy v. Ferguson was 
presented to this Court on a record which itself assumed 
equality. The validity of racial segregation was not in issue 
in Gumming v. Board of Education which was decided on 
the question of the impropriety of the remedy sought. In 
Gong Lum v. Rice, the gravamen of the action was the 
objection of a Chinese child to being classified as a colored 
person for school purposes.

The record in the instant case presents for the first time 
competent, uncontradicted expert testimony sufficient to 
enable this Court to make a critical analysis of the constitu­
tionality of statutes requiring racial segregation in ele­
mentary and high schools. No such evidence appeared in 
the records of any of the cases considered controlling by 
the appellees.

The testimony in the record in this case clearly distin­
guishes it from the above cited cases. If, however, the 
separate but equal doctrine of these cases is considered 
applicable then it should be reexamined in the light of facts 
now revealed for the first time in the present record.

“ In reaching this conclusion we are not unmindful 
of the desirability of continuity of decision in constitu­
tional questions. However, when convinced of former 
error, this Court has never felt constrained to follow 
precedent. In constitutional questions, where correc­
tion depends upon amendment and not upon legislative 
action this Court throughout its history has freely 
exercised its power to reexamine the basis of its con­
stitutional decisions. This has long been accepted 
practice, and this practice has continued to this day. 
This is particularly true when the decision believed 
erroneous is the application of a constitutional princi­
ple rather than an interpretation of the Constitution to 
extract the principle itself. Here we are applying,



3

contrary to the recent decision in Grovey v. Townsend, 
the well established principle of the Fifteenth Amend­
ment forbidding the abridgement by a state of a citi­
zen’s right to vote. Grovey v. Townsend is overruled. ”  
Smith v. Allwright, 321 U. S. 649, 665-6.

The issue in the case of McLaurin v. Oklahoma State 
Regents, 339 IT. S. 637, was “ whether a state may, after 
admitting a student to graduate instruction in its state 
university, afford him different treatment from other stu­
dents solely because of his race.”  (at p. 638). The unani­
mous opinion of this Court decided: ‘ ‘ Appellant, having 
been admitted to a state-supported graduate school, must 
receive the same treatment at the hands of the state as 
students of other races.”  (at p. 642).

The issue in the instant case is whether a state which 
undertakes to provide public education on the elementary 
and high school levels for its residents can satisfy the 
requirements of the equal protection clause of the Four­
teenth Amendment if it compels the segregation of Negro 
pupils from all other pupils. The uncontradicted testimony 
of appellants’ expert witnesses show that compulsory racial 
segregation of pupils was harmful to the segregated stu­
dents on the elementary and high school levels and deprived 
them of educational opportunities and advantages equal to 
those enjoyed by white students.

This Court found racial separation harmful and a depri­
vation of the equal protection of the laws in the McLaurin 
and Sweatt cases based upon expert testimony of the nature 
presented at the trial of this case. In the majority opinion 
the court below distinguished these two cases on the 
grounds that they were meant to be applicable to only 
graduate and professional education, whereas the dissent­
ing judge felt that rationale of the McLaurin and Sweatt 
cases should be applied in the disposition of this case.



4

In another recent case1 expert testimony similar to that 
introduced in the instant case showed the effect of racial 
segregation upon public school pupils in Topeka, Kansas. 
The three-judge court of the United States District Court 
for the District of Kansas included in its Findings of Fact 
a finding that: “ Segregation of white and colored children 
in public schools has a detrimental effect upon the colored 
children. The impact is greater when it has the sanction of 
the law; for the policy of separating the races is usually 
interpreted as denoting the inferiority of the Negro group. 
A sense of inferiority affects the motivation of a child to 
learn. Segregation with the sanction of law, therefore, has 
a tendency to retard the educational and mental develop­
ment of Negro children and to deprive them of some of the 
benefits they would receive in a racial integrated school 
system.”

In its opinion the Court said: “ It is vigorously argued 
and not without some basis therefor that the later decisions 
of the Supreme Court in McLaurin v. Oklahoma, 339 U. S. 
637, and Sweatt v. Painter, 339 U. S. 629 . . . show a trend 
away from the Plessy and Lum cases.”

“ . . . If 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. Or if the denial of the right to commingle with 
the majority group in higher institutions of learning 
as in the Sweatt case and gain the educational advantages 
resulting therefrom, is lack of due process, it is difficult to 
see why such denial would not result in the same lack of due 
process if practiced in the lower grades.”

The court, however, was of the view that the Stveatt and 
McLaurin cases were limited to graduate and professional

1 Brown v. Board of Education o f Topeka, Civil Action No, T-316, 
Decided August 3, 1951,



5

education. “ We are accordingly of the view,”  the court 
concluded, “ that the Plessy and Lwm cases . . .  have not 
been overruled and that they still presently are authority 
for the maintenance of a segregated school system in the 
lower grades. ”

“ The prayer for relief will be denied and judgment will 
be entered for defendants with costs.”

Thus both in this case and in the Topeka case, supra, 
lower courts have concluded that the principles enunciated 
in the McLaurin and Sweatt cases are applicable to ques­
tions of equal educational opportunities at the graduate 
and professional school level only. Yet, that this is not the 
view of this Court is apparent from its disposition of Rice 
v. Arnold, ■— U. S. —, decided Oct. 10, 1950.

If a question involving segregation in the use of a mu­
nicipal golf course must be remanded to the court below for 
reconsideration in the light of the Sweatt and McLaurin 
cases, as in Rice v. Arnold, it seems evident that the ra­
tionale of these two decisions necessarily governs a deter­
mination as to whether equal educational opportunities 
have been furnished at the elementary and high school level. 
Certainly the instant cause should be reviewed to remove 
any ambiguity with respect to this question.

Appellees’ Motion to Dismiss Should Be Denied
The appellees take the position that this was an action 

for a declaratory judgment to declare the Negro schools of 
Clarendon County, South Carolina, unequal to the white 
schools of that county and to enjoin the enforcement of the 
statutes of South Carolina requiring racial segregation in 
public schools—that there were two causes of action, one 
which was finally determined and one which has not been 
finally decided.

Appellants contend that there is but one cause of action, 
that is, the effort to enjoin the enforcement of the statutes



6

of South Carolina requiring the segregation of the races in 
public schools. This issue was clearly raised in the plead­
ings, was supported by competent testimony and was de­
cided by the District Court.

The appellees, having amended their answer to admit the 
inequalities in physical facilities of the schools and having 
consented to an injunction against these inequalities, the 
only question in the case at the beginning of the trial was 
the question of the constitutionality of the statutes. This 
question was decided by the majority of the Court in its 
decree which held that the enforcement of these statutes 
did not violate the provisions of the Fourteenth Amendment 
and that appellants were “ not entitled to an injunction for­
bidding segregation in the public schools of School District 
No. 22.”  The second paragraph of the decree ordered the 
appellees to “ proceed at once to furnish to [Appellants] 
and other Negro pupils of said district educational facilities, 
equipment, curricula and opportunities equal to those 
furnished white pupils. ’ ’

Appellees contend that this order is not final or review- 
able by this Court because of the last statement in the 
decree: “ And it is further ordered that the defendants 
make report to this Court within six months of this date as 
to the action taken by them to carry out this order. And 
this cause is retained for further orders.”

The one issue requiring a three-judge Court has been 
finally determined. The District Court refused to issue an 
injunction restraining the enforcement of the statutes in 
question. The other portion of the decree requiring equali­
zation of physical facilities was likewise final. The court 
could not have intended, as appellees contend, that the 
appellees be given six months to equalize facilities, for to 
do so would be contrary to the decisions of this Court. 
Sipuel v. Board of Regents, 332 U. S. 631. In the absence



7

of a review by this Court all that remains is the question of 
enforcement of the decree. All that is required is that the 
appellees report to the Court within six months of the 
“ action taken by them to carry out this order.”  (Italics 
ours.)

The latent powers of a court to reopen or revise its 
judgment does not prevent a judgment from being final. 
Market Street Railway Co. v. Railroad Commission, 324 
U. S. 548, 551. In Knox National Federal Loan Association 
v. Phillips, 300 U. S. 194, in an action to retire shares of 
stock of a federal farm loan association where the lower 
court granted the relief, appointed a receiver and reserved 
the right to control the conduct of the officers and to rescind 
or modify its order, this Court stated at page 137:

‘ ‘ The primary purpose of the suit was the recovery 
of a judgment for the par value of the shares. Any 
other relief prayed for or awarded was tributary to 
that recovery; it was a form of equitable execution to 
make collection possible. When the amount invested 
in the stock was adjudged to constitute a debt, whatever 
followed in the decree was auxiliary and modal. ’ ’

In Winthrop Iron Co. v. Meeker, 109 U. S. 180, 183 a 
judgment containing a provision—“ And the Court reserves 
to itself such further directions as may be necessary to 
carry this decree into effect, concerning costs, or as may be 
equitable and just” —was nevertheless a final judgment. 
This Court stated:

“ The whole purpose of the suit has been accom­
plished . . .  the litigation of the case is terminated, 
and nothing now remains to be done, but to carry what 
has been decreed into execution. Such a decree has 
always been held to be final for the purpose of an 
appeal.”



8

See also: Carondelet Canal and Nav. Co. v. Louisiana, 
233 U. S. 362; St. Louis Iron Wit. and Southern Railway Co. 
v. Southern Express Co., 108 U. S. 24.

In the instant case the District Court ordered appellees 
to furnish to the Negro pupils of the district “ educational 
facilities, equipment, curricula, and opportunities equal to 
those furnished white pupils.”  Under this decree the only 
thing remaining to be done is to furnish the facilities 
ordered. No further judicial question exists. The litiga­
tion of the parties as to the merits of the case is terminated. 
All that remains for the Court to do is to police its order. 
Such a decree is similar to the decrees where an equity court 
decides the issues in a case and orders an accounting. This 
Court has repeatedly held that such decrees are final. 
For gay v. Conrad, 6 How. 201, 202; Radio Station WOW  
v. Johnson, 326 U. S. 120.

Thus, where the judgment disposes of the whole case on 
its merits and the court below has nothing to do but execute 
its decree its order is final. Bostwick v. Brinkerhoff, 106 
U. S. 3.

In making that determination this Court “ will examine 
both the judgment and the opinion as well as other circum­
stances which may be pertinent.”  Gospel Army v. City of 
Los Angeles, 331 U. S. 543, 548.

It should further be pointed out that there is no question 
but that the Court finally and definitely refused to grant 
the injunctive relief appellants were seeking—to enjoin 
enforcement of the Constitution and statutes of South 
Carolina, requiring segregation of the races, on the grounds 
of unconstitutionality. Such an order is clearly reviewable 
where the appeal is made pursuant to Title 28, Sections 
1253 and 2101. Eichholz v. Public Service Commission, 306 
U. S. 268.



9

Appellants, it is submitted, must seek a review of the 
lower court’s decision at this time in order to avoid any 
obstacle to this Court’s final determination as to whether 
the statute and constitutional provisions of South Carolina 
which require segregation of the races in public schools 
conform to the requirements of the equal protection clause 
of the Fourteenth Amendment.

Appellees’ Motion to Affirm Should Be Denied
Appellants’ rights to the equal protection of the laws are 

present and personal. Sipuel v. Board of Regents, supra; 
Sweatt v. Painter, supra; McLaurin v. Board of Regents, 
supra. At the time of the judgment in this case appellants 
were entitled to a decree enforcing these rights. The only 
way this could have been done would have been to order 
that appellants be admitted into the schools set aside solely 
and exclusively for white pupils in School District No. 22 
and in the Summerton High School District without segre­
gation or discrimination. Missouri ex rel. Gaines v. Canada, 
305 U. S. 337; Sweatt v. Painter, supra; Wilson v. Board of 
Supervisors, 94 L. Ed. (Ad. Op.) 200; McKissick v. Car­
michael, 187 F. 2d 949.

To affirm the judgment in this case would be to establish 
a precedent that the rationale of the Sweatt and McLaurin 
decisions could not be applied to a case involving ele­
mentary and high school education. An affirmance of the 
judgment in this case would also mean that appellants’ 
rights to the equal protection of the laws could be postponed 
to a future date.

Conclusion

The majority opinion of the District Court subordinated 
the individual rights of appellants to the state’s segregation 
policy. The rationale of the Sweatt and McLaurin cases,



10

swpra, was disregarded. Although the Supreme Court has 
clarified the issue as to graduate and professional schools, 
the Court has never had the opportunity to consider the 
question as to elementary and high schools on the basis of 
a full and complete record with the issue clearly drawn and 
with competent expert testimony as appears in the record 
in this case. A clear-cut decision on this issue will remove 
all doubts in the field of public education.

For the foregoing reasons, appellees’ motion to dismiss 
and motion to affirm should be denied.

Respectfully submitted,

H arold R. B oulware,
Spottswood W . R obinson, III, 
R obert L. Carter,
T huegood Marshall,

Counsel for Appellants.
A rthur D. Shores,
A. T. W alden,

Of Counsel.

(7099)