BRIGGS et al. v. ELLIOTT et al.
Civ. A. No. 2657
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA,
CHARLESTON DIVISION
98 F. Supp. 529; 1951 U.S. Dist. LEXIS 2261
May 28, 1951, Heard
June 23, 1951, Decided
CORE TERMS: segregation, Fourteenth Amendment, educational, public
schools, inequality, colored, slavery, pupils, equal protection, school
district, violative, color, equal facilities, injunction, graduate, railroad,
attend, practiced, public education, colored race, school system, governor,
segregated, ancestry, leader, school facilities, establishment, discriminate,
declaration, stricken
COUNSEL: [**1]
Thurgood Marshall, Robert L. Carter, New York City, Harold R. Boulware,
Columbia, S.C., Spottswood W. Robinson, III, Richmond, Va., Arthur Shores,
Birmingham, Ala., A. T. Walden, Atlanta, Ga., for plaintiffs.
T. C. Callison Atty. Gen., of South Carolina, Robert McC. Figg, Jr.,
Charleston, S.C., S. E. Rogers, Summerton, S.C., for defendants.
JUDGES: Before PARKER, Circuit Judge, and WARING and TIMMERMAN,
District judges.
OPINIONBY: PARKER
OPINION: [*530]
This is a suit for a declaratory judgment and injunctive relief in which it is
alleged that the schools and educational facilities provided for Negro children
in School District No. 22 in Clarendon County, South Carolina, are inferior to
those provided for white children in that district and that this amounts to a
denial of the equal protection of the laws guaranteed them by the Fourteenth
Amendment to the Federal Constitution, and further that the segregation of
Negro and white children in the public schools, required by Article 11, section
7 of the Constitution of South Carolina and section 5377 of the Code of Laws of
that state, n1 is of itself violative of the equal protection clause of the
Fourteenth Amendment. Plaintiffs are [**2] Negro children of school age who are entitled to
attend [*531] the public schools in
District No. 22 in Clarendon County, their parents and guardians. Defendants
are the school officials who, as officers of the state, have control of the
schools in the district. A court of three judges has been convened pursuant to
the provisions of 28
U.S.C. §§ 2281 and 2284, the evidence offered by the parties has been heard
and the case has been submitted upon the briefs and arguments of counsel.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1. Article 11, section 7 of the Constitution of South Carolina is as follows:
'Separate schools shall be provided for children of the white and colored
races, and no child of either race shall ever be permitted to attend a school
provided for children of the other race.'
Section 5377 of the Code of Laws of South Carolina of 1942 is as follows: 'It
shall be unlawful for pupils of one race to attend the schools provided by
boards of trustees for persons of another race.'
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At the beginning of the hearing the defendants admitted [**3] upon the record that 'the educational
facilities, equipment, curricula and opportunities afforded in School District
No. 22 for colored pupils * * * are not substantially equal to those afforded
for white pupils'. The evidence offered in the case fully sustains this
admission. The defendants contend, however, that the district is one of the
rural school districts which has not kept pace with urban districts in
providing educational facilities for the children of either race, and that the
inequalities have resulted from limited resources and from the disposition of
the school officials to spend the limited funds available 'for the most
immediate demands rather than in the light of the overall picture'. They state
that under the leadership of Governor Byrnes the Legislature of South carolina has
made provision for a bond issue of $ 75,000,000 with a three per cent sales tax
to support it for the purpose of equalizing educational opportunities and
facilities throughout the state and of meeting the problem of providing equal
educational opportunities for Negro children where this had not been done. They
have offered evidence to show that this educational program is going forward
and that [**4] under it the educational
facilities in the district will be greatly improved for both races and that Negro
children will be afforded educational facilities and opportunities in all
respects equal to those afforded white children.
There can be no question but that where separate schools are maintained for
Negroes and whites, the educational facilities and opportunities afforded by
them must be equal. The state may not deny to any person within its
jurisdiction the equal protection of the laws, says the Fourteenth Amendment;
and this means that, when the state undertakes public education, it may not
discriminate against any individual on account of race but must offer equal
opportunity to all. As said by Chief Justice Hughes in Missouri
ex rel. Gaines v. Canada, 305 U.S. 337, 349, 59 S.Ct. 232, 236, 83 L.Ed. 208.
'The admissibility of laws separating the races in the enjoyment of privileges
afforded by the State rests wholly upon the equality of the privileges which
the laws give to the separated groups within the State.' See also Sweatt
v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Corbin
v. County School Board of Pulaski County, 4 Cir., 177 F.2d 924; Carter
v. School Board [**5]
of Arlington County, Va., 4 Cir., 182 F.2d 531; McKissick
v. Carmichael, 4 Cir., 187 F.2d 949. We think it clear, therefore, that
plaintiffs are entitled to a declaration to the effect that the school
facilities now afforded Negro children in District No. 22 are not equal to the
facilities afforded white children in the district and to a mandatory
injunction requiring that equal facilities be afforded them. How this shall be
done is a matter for the school authorities and not for the court, so long as
it is done in good faith and equality of facilities is afforded; but it must be
done promptly and the court in addition to issuing an injunction to that effect
will retain the cause upon its docket for further orders and will require that
defendants file within six months a report showing the action that has been
taken by them to carry out the order.
Plaintiffs ask that, in addition to granting them relief on account of the
inferiority of the educational facilities furnished them, we hold that
segregation of the races in the public schools, as required by the Constitution
and statutes of South Carolina, is of itself a denial of the equal protection
of the laws guaranteed by the Fourteenth [**6] Amendment, and that we enjoin the enforcement of
the constitutional provision and statute requiring it and by our injunction
require defendants to admit Negroes to schools to which white students [*532] are admitted within the district. We think,
however, that segregation of the races in the public schools, so long as
equality of rights is preserved, is a matter of legislative policy for the
several states, with which the federal courts are powerless to interfere.
One of the great virtues of our constitutional system is that, while the
federal government protects the fundamental rights of the individual, it leaves
to the several states the solution of local problems. In a country with a great
expanse of territory with peoples of widely differing customs and ideas, local
self government in local matters is essential to the peace and happiness of the
people in the several communities as well as to the strength and unity of the
country as a whole. It is universally held, therefore, that each state shall
determine for itself, subject to the observance of the fundamental rights and
liberties guaranteed by the federal Constitution, how it shall exercise the
police power, i.e. the [**7] power to legislate with respect to the safety,
morals, health and general welfare. And in no field is this rights of the
several states more clearly recognized than in that of public education. As was
well said by Mr. Justice Harlan, speaking for a unanimous court in Cumming
v. County Board of Education, 175 U.S. 528, 545, 20 S.Ct. 197, 201, 44 L.Ed.
262, 'while all admit that the benefits and burdens of public taxation must
be shared by citizens without discrimination against any class on account of
their 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 with the management of such schools cannot be
justified except in the case of a clear and unmistakable disregard of rights
secured by the supreme law of the land.'
It is equally well settled that there is no denial of the equal protection of
the laws in segregating children in the schools for purposes of education, if
the children of the different races are given equal facilities and
opportunities. The leading case on the subject in the Supreme
Court is Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1140, [**8] 41
L.Ed. 256, which involved segregation in railroad trains, but in which the
segregation there involved was referred to as being governed by the same
principle as segregation in the schools. In that case the Court said: 'The
object of the 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 commingling of the two races upon
terms unsatisfactory to either. Laws permitting, and even requiring, their separation,
in places where they are liable to be brought into contact, do not necessarily
imply the inferiority of either race to the other, and have been generally, if
not universally, recognized as within the competency of the state legislatures
in the exercise of their police power. The most common instance of this is
connected with the establishment of separate schools for white and colored
children, which has been held to be a valid exercise of the legislative power
even by courts of states where the political rights of the colored race have
been longest and most earnestly [**9] enforced.'
Later in the opinion the Court said: 'So far, then, as a conflict with the
fourteenth amendment is concerned, the case reduces itself to the question
whether the statute of Louisiana is a reasonable regulation, and with respect
to this there must necessarily be a large discretion on the part of the
legislature. In determining the question of reasonableness, it is at liberty to
act with reference to the established usages, customs, and traditions of the
people, and with a view to the promotion of their comfort, and the preservation
of the public peace and good order.' (Italics supplied.)
Directly in point and absolutely controlling upon us so long as it stands
unreversed by the Supreme
Court is Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 93, 72 L.Ed. 172, in
which the complaint was that a child of Chinese parentage was excluded from a
school maintained for white children under a segregation law and was permitted
to enter only a school maintained for colored children. Although attempt is
made to distinguish [*533]
this case, it cannot be distinguished. The question as to the validity of
segregation in the public schools on the ground of race was squarely raised, the [**10] Fourteenth Amendment was relied upon as
forbidding segregation and the issue was squarely met by the Court. What was
said by Chief Justice Taft speaking for a unanimous court, is determinative of
the question before us. Said he:
'The case then reduces itself to the question whether a state can be said to
afford to a child of Chinese ancestry, born in this country and a citizen of
the United States, the equal protection of the laws, by giving her the
opportunity for a common school education in a school which receives only
colored children of the brown, yellow or black races.
'The right and power of the state to regulate the method of providing for the
education of its youth at public expense is clear. * * *
'The question here is whether a Chinese citizen of the United States is denied
equal protection of 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. Were this a new question, it would call for very full
argument and consideration; but we think that it is the same question which has
been many times decided to be within the constitutional power of the state
Legislature [**11] to settle, without
intervention of the federal courts under the federal Constitution. Roberts v.
City of Boston, 5 Cush. (Mass.) 198, 206, 208, 209; State
ex rel. Garnes v. McCann, 21 Ohio St. 198, 210; People
ex rel. King v. Gallagher, 93 N.Y. 438; -people ex rel. Cisco
v. School Board, 161 N.Y. 598, 56 N.E. 81, 48 L.R.A. 113; Ward
v. Flood, 48 Cal. 36; Wysinger
v. Crookshank, 82 Cal. 588, 590, 23 P. 54; Reynolds
v. Board of Education, 66 Kan. 672, 72 P. 274; McMillan
v. School Committee, 107 N.C. 609, 12 S.E. 330, 10 L.R.A. 823; Cory
v. Crter, 48 Ind. 327; Lehew
v. Brummell, 103 Mo. 546, 15 S.W. 765, 11 L.R.A. 828; Dameron
v. Bayless, 14 Ariz. 180, 126 P. 273; State
ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355; Beronneau
v. Board, 3 Woods 177, 3 Fed.Cas. 294, (Case) No. 1,361; United
States v. Buntin (C.C.), 10 F. 730. 735; Wong
Him v. Callahan (C.C.), 119 F. 381.
'In Plessy
v. Gerguson, 163 U.S. 537, 544, 545, 16 S.Ct. 1138, 1140, 41 L.Ed. 256, in
upholding the validity under the Fourteenth Amendment of a statute of Louisiana
requiring the separation of the white and colored races in railway coaches, a
more difficult question than this, this court, speaking of permitted race [**12] separation, said:
"The most common instance of this is connected with the establishment of
separate schools for white and colored children, which has been held to be a
valid exercise of the legislative power even by courts of states where the
political rights of the colored race have been longest and most earnestly
enforced.'
'Most of the cases cited arose, it is true, over the establishment of separate
schools as between white pupils and black pupils; but we cannot think that the
question is any different, or that any different result can be reached,
assuming the cases above cited to be rightly decided, where the issue is as
between white pupils and the pupils of the yellow races. The decision is within
the discretion of the state in regulating its public schools, and does not
conflict with the Fourteenth Amendment.' (Italics supplied.)
Only a little over a year ago, the question was before the Court of Appeals of
the District of Columbia in Carr
v. Corning, 86 U.S.App.D.C. 173, 182 F.2d 14, 16, a case involving the
validity of segregation within the District, and the whole matter was
exhaustively explored in the light of history and the pertinent decisions in an
able opinion by [**13] Judge Prettyman, who said:
'It is urged that the separation of the races is itself, apart from equality or
inequality of treatment, forbidden by the Constitution. The question thus posed
is whether the Constitution lifted this problem out of the hands of all
legislatures and settled it. We do not think it did. Since the beginning of
human history, no circumstance has given rise to more difficult and delicate
problems than has the coexistence [*534] of different races in the same area. Centuries of
bitter experience in all parts of the world have proved that the problem is
insoluble by force of any sort. The same history shows that it is soluble by
the patient processes of community experience. Such problems lie naturally in
the field of legislation, a method susceptible of experimentation, of
development, of adjustment to the current necessities in a variety of community
circumstance. We do not believe that the makers of the first ten Amendments in
1789 or of the Fourteenth Amendment in 1866 meant to foreclose legislative
treatment of the problem in this country.
'This is not to decry efforts to reach that state of common existence which is
the obvious highest good in our concept [**14] of civilization. It is merely to say that the
social and economic interrelationship of two races living together is a
legislative problem, as yet not solved, and is not a problem solved fully,
finally and unequivocally by a flat enacted many years ago. We must remember
that on this particular point we are interpreting a constitution and not
enacting a statute.
'We are not unmindful of the debates which occurred in Congress relative to the
Civil Rights Act of April 9, 1866, the Fourteenth Amendment, and the Civil
Rights Act of March 1, 1875. But the actions of Congress, the discussion in the
Civil Rights cases, and the fact that in 1862, 1864, 1866 and 1874 Congress, as
we shall point out in a moment, enacted legislation which specifically provided
for separation of the races in the schools of the District of Columbia,
conclusively support our view of the Amendment and its effect.
'The Supreme Court has consistently held that if there be an 'equality of the privileges
which the laws give to the separated groups', the races may be separated. That
is to say that constitutional invalidity does not arise from the mere fact of
separation but may arise from an inequality of treatment. Other [**15] courts have long held to the same effect.'
It should be borne in mind that in the above cases the courts have not been
dealing with hypothetical situations or mere theory, but with situations which
have actually developed in the relationship of the races throughout the country.
Segregation of the races in the public schools has not been confined to South
Carolina or even to the South but prevails in many other states where Negroes
are present in large numbers. Even when not required by law, it is customary in
many places. Congress has provided for it by federal statute in the District of
Columbia; and seventeen of the states have statutes or constitutional
provisions requiring it. They are Alabama, Arkansas, Delaware Florida, Georgia,
Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma,
South Carolina, Tennessee, Texas, Virginia, and West Virginia. n2 And the
validity of legislatively requiring segregation in the schools has been upheld
wherever the question has been raised. See Wond Him v. Callahan, C.C., 119
F.381; United
States v. Buntin, C.C., 10 F. 730; Beronneau
v. Board of Directors, 3 Fed.Cas. 294, No. 1,361; Dameron
v. Bayless, 14 Ariz. 180, 126 [**16] P. 273; Maddox
v. Neal, 45 Ark. 121, 55 Am.Rep. 540' Ward
v. Flood, 48 Cal. 36, 17 Am.Rep. 738; Graham
v. Board of Education, 153 Kan. 840, 114 P.2d 313; Richardson
v. Board of Education, 72 Kan. 629, 84 P. 538; Reynolds
v. Board of Education, 66 Kan. 672, 72 P. 274; Chrisman
v. Mayor of City of Brookhaven, 70 Miss. 477, 12 So. 458; Lehew
v. Brummell, 103 Mo. 546, 15 S.W. 765, 11 L.R.A. 828, 23 Am.St.Rep. 895; State
ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 8 Am.Rep. 713; People
ex rel. Cisco v. School Board, 161 N.Y. 598, 56 N.3. 81, 48 L.R.A. 113; People
v. Gallagher, 93 N.Y. 438, 45 Am.Rep. 232; McMillan
v. School Committee, 107 N.C. 609, 12 S.E. 330, 10 L.R.A. 823; State
ex rel. Garnes v. McCann, 21 Ohio St. 198; Board
of [*535]
Education v. Board of Com'rs. 14 Okl. 322, 78 P. 455; Martin
v. Board of Education, 42 W.Va. 514, 26 S.E. 348. n3 No cases have been
cited to us holding that such legislation is violative of the Fourteenth
Amendment. We know of none, and diligent search of the authorities has failed
to reveal any.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2. Statistical Summary of Education, 1947-48, 'Biennial Survey of Education in
the United States, 1946-48', ch, 1, pp. 8, 40 (Federal Security Agency, Office
of Education). [**17]
n3. See also Roberts v. City of Boston, 5 Cush., Mass., 198, decided prior to
the Fourteenth Amendment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Plaintiffs rely upon expressions contained in opinions relating to professional
education such as Sweatt
v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, McLaurin
v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149, and McKissick
v. Carmichael, 4 Cir., 187 F.2d 949, where equality of opportunity was not
afforded. Sweatt v. Painter, however, instead of helping them, emphasizes that
the separate but equal doctrine of Plessy v. Gerguson, has not been overruled,
since the Supreme Court, although urged to overrule it, expressly refused to do
so and based its decision on the ground that the educational facilities offered
Negro law students in that case were not equal to those offered white students.
The decision in McKissick v. Carmichael, was based upon the same ground. The
case of McLaurin v. Oklahoma State Regents, involved humiliating and
embarrassing treatment of a Negro graduate student to which no one should have
been required to submit. Nothing of the sort is involved [**18] here.
The problem of segregation as applied to graduate and professional education is
essentially different from that involved in segregation in education at the
lower levels. In the graduate and professional schools the problem is one of
affording equal educational facilities to persons sui juris and of mature
personality. Because of the great expense of such education and the importance
of the professional contacts established while carrying on the educational
process, it is difficult for the state to maintain segregated schools for
Negroes in this field which will afford them opportunities for education and
professional advancement equal to those afforded by the graduate and
professional schools maintained for white persons. What the courts have said,
and all they have said in the cases upon which plaintiffs rely is that, notwithstanding
these difficulties, the opportunity afforded the Negro student must be equal to
that afforded the white student and that the schools established for furnishing
this instruction to white persons must be opened to Negroes if this is
necessary to give them the equal opportunity which the Constitution requires.
The problem of segregation at the common [**19] school level is a very different one. At this
level, as good education can be afforded in Negro schools as in white schools
and the thought of establishing professional contacts does not enter into the
picture. Moreover, education at this level is not a matter of voluntary choice
on the part of the student but of compulsion by the state. The student is taken
from the control of the family during school hours by compulsion of law and
placed in control of the school, where he must associate with his fellow
students. The law thus provides that the school shall supplement the work of
the parent in the training of the child and in doing so it is entering a
delicate field and one fraught with tensions and difficulties. In formulating
educational policy at the common school level, therefore, the law must take
account, not merely of the matter of affording instruction to the student, but
also of the wishes of the parent as to the upbringing of the child and his
associates in the formative period of childhood and adolescence. If public
education is to have the support of the people through their legislatures, it
must not go contrary to what they deem for the best interests of their
children. [**20]
There is testimony to the effect that mixed schools will give better education
and a better understanding of the community in which the child is to live than
segregated schools. There is testimony, on the other hand, that mixed schools
will result in racial friction and tension and that the only practical way of
conducting [*536] public education in South
Carolina is with segregated schools. The questions thus presented are not
questions of constitutional right but of legislative policy, which must be
formulated, not in vacuo or with doctrinaire disregard of existing conditions,
but in realistic approach to the situations to which it is to be applied. In
some states, the legislatures may well decide that segregation in public
schools should be abolished, in others that it should be maintained- all
depending upon the relationships existing between the races and the tensions
likely to be produced by an attempt to educate the children of the two races
together in the same schools. The federal courts would be going far outside
their constitutional function were they to attempt to prescribe educational
policies for the states in such matters, however desirable such policies
might [**21] be in the opinion of some
sociologists or educators. For the federal courts to do so would result, not
only in interference with local affairs by an agency of the federal government,
but also in the substitution of the judicial for the legislative process in
what is essentially a legislative matter.
The public schools are facilities provided and paid for by the states. The
state's regulation of the facilities which it furnishes is not to be interfered
with unless constitutional rights are clearly infringed. There is nothing in
the Constitution that required that the state grant to all members of the
public a common right to use every facility that it affords. Grants in aid of
education or for the support of the indigent may properly be made upon an
individual basis if no discrimination is practiced; and, if the family, which
is the racial unit, may be considered in these, it may be considered also in
providing public schools. The equal protection of the laws does not mean that
the child must be treated as the property of the state and the wishes of his
family as to his upbringing be disregarded. The classification of children for
the purpose of education in separate schools has a [**22] basis grounded in reason and experience;
and, if equal facilities are afforded, it cannot be condemned as discriminatory
for, as said by Mr. Justice Reed in New
York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 578, 58 S.Ct. 721,
724, 82 L.Ed. 1024: 'It has long been the law under the Fourteenth
Amendment that 'a distinction in legislation is not arbitrary, if any state of
facts reasonably can be conceived that would sustain it." n4
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n4. See also, Rast
v. VanDeman & Lewis Co., 240 U.S. 342, 357, 36 S.Ct. 370, 60 L.Ed. 679;
Borden's Farm Products Co. v.
Baldwin, 293 U.S.
194, 209, 55 S.Ct. 187, 70 L.Ed. 281; Metropolitan
Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 70 L.Ed. 1070;
State
Board of Tax Com'rs v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 75 L.Ed. 1248;
Lindsley
v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369; Alabama
State Federation of Labor v. McAdory, 325 U.S. 450, 465, 65 S.Ct. 1384, 89
L.Ed. 1725; Asbury
Hospital v. Cass County, N.D., 326 U.S. 207, 215, 66 S.Ct. 61, 90 = l.Ed.
6; Carmichael
V. Southern Coal & Coke Co., 301 U.S. 495, 509, 57 S.Ct. 868, 81 L.Ed.
1245; South
Carolina Power Co. v. South Carolina Tax Com'n, 4 Cir., 52 F.2d 515, 518; United
States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed.
1234; Bowles
v. American Brewery, 4 Cir., 146 F.2d 842, 847; White
Packing Co. v. Robertson, 4 Cir., 89 F.2d 775, 779.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**23]
We are cited to cases having relation to zoning ordinances, restrictive
covenants in deeds and segregation in public conveyances. It is clear, however,
that nothing said in these cases would justify our disregarding the great
volume of authority relating directly to education in the public schools, which
involves not transient contacts, but associations which affect the interests of
the home and the wishes of the people with regard to the upbringing of their
children. As Chief Justice Taft pointed out in Gong
Lum v. Rice, supra (275 U.S. 78, 48 S.Ct. 93), 'a more difficult' question
is presented by segregation in public conveyances than by segregation in the
schools.
We conclude, therefore, that if equal facilities are offered, segregation of
the races in the public schools as prescribed by the Constitution and laws of
South Carolina is not of itself violative of the [*537] Fourteenth Amendment. We think that this
conclusion is supported by overwhelming authority which we are not at liberty
to disregard on the basis of theories advanced by a few educators and
sociologists. Even if we felt at liberty to disregard other authorities, we may
not ignore the unreversed decisions [**24] of the Supreme Court of the United States which are
squarely in point and conclusive of the question before us. As said by the
Court of Appeals of the Fourth Circuit in Boyer
v. Garrett, 183 F.2d 582, a case involving segregation in a public
playground, in which equality of treatment was admitted and segregation was
attacked as being per se violative of the Fourteenth Amendment: 'The contention
of plaintiffs is that, notwithstanding this equality of treatment, the rule
providing for segregation is violative of the provisions of the federal
Constitution. The District Court dismissed the complaint on the authority of Plessy
v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; and the principal
argument made on appeal is that the authority of Plessy v. Ferguson has been so
weakened by subsequent decisions that we should no longer consider it as
binding. We do not think, however, that we are at liberty thus to disregard a
decision of the Supreme Court which that court has not seen fit to overrule and
which it expressly refrained from reexamining, although urged to do so, in the
very recent case of Sweatt
v. Painter (339 U.S. 629), 70 S.Ct. 848 (94 L.Ed. 1114). It is for the
Supreme [**25] Court, not us, to overrule
its decisions or to hold them outmoded.'
To this we may add that, when seventeen states and the Congress of the United
States have for more than three-quarters of a century required segregation of
the races in the public schools, and when this has received the approval of the
leading appellate courts of the country including the unanimous approval of the
Supreme Court of the United States at a time when that court included Chief
Justice Taft and Justices Stone, Holmes and Brandeis, it is a late day to say
that such segregation is violative of fundamental constitutional rights. It is
hardly reasonable to suppose that legislative bodies over so wide a territory,
including the Congress of the United States, and great judges of high courts
have knowingly defied the Constitution for so long a period or that they have
acted in ignorance of the meaning of its provisions. The constitutional
principle is the same now that it has been throughout this period; and if
conditions have changed so that segregation is no longer wise, this is a matter
for the legislatures and not for the courts. The members of the judiciary have
no more right to read their ideas of sociology [**26] into the Constitution than their ideas of
economics.
It is argued that, because the school facilities furnished Negroes in District
No. 22 are inferior to those furnished white persons, we should enjoin segregation
rather than direct the equalizing of conditions. In as much as we think that
the law requiring segregation is valid, however, and that the inequality
suffered by plaintiffs results, not from the law, but from the way it has been
administered, we think that our injunction should be directed to removing the
inequalities resulting from administration within the framework of the law
rather than to nullifying the law itself. As a court of equity, we should
exercise our power to assure to plaintiffs the equality of treatment to which
they are entitled with due regard to the legislative policy of the state. In
directing that the school facilities afforded Negroes within the district be
equalized promptly with those afforded white persons, we are giving plaintiffs
all the relief that they can reasonably ask and the relief that is ordinarily
granted in cases of this sort. See Carter
v. County School Board of Arlington County, Virginia, 4 Cir., 182 F.2d 531.
The court should not [**27]
use its power to abolish segregation in a state where it is required by law if
the equality demanded by the Constitution can be attained otherwise. This much
is demanded by the spirit of comity which must prevail in the relationship
between the agencies of the federal government and the states if our
constitutional system is to endure.
Decree will be entered finding that the constitutional and statutory provisions
requiring [*538] segregation in the public
schools are not of themselves violative of the Fourteenth Amendment, but that
defendants have denied to plaintiffs rights guaranteed by that amendment in
failing to furnish for Negroes in School District 22 educational facilities and
opportunities equal to those furnished white persons, and injunction will issue
directing defendants promptly to furnish Negroes within the district
educational facilities and opportunities equal to those furnished white persons
and to report to the court within six months as to the action that has been
taken by them to effectuate the court's decree.
Injunction to abolish segregation denied.
Injunction to equalize educational facilities granted.
DISSENTBY: WARING
DISSENT: WARING, District Judge (dissenting). [**28]
This case has been brought for the express and declared purpose of determining
the right of the State of South Carolina, in its public schools, to practice
segregation according to race.
The plaintiffs are all residents of Clarendon County, South Carolina which is
situated within the Eastern District of South Carolina and within the
jurisdiction of this court. The plaintiffs consist of minors and adults there
being forty-six minors who are qualified to attend and are attending the public
schools in School District 22 of Clarendon County; and twenty adults who are
taxpayers and are either guardians or parents of the minor plaintiffs. The
defendants are members of the Board of Trustees of School District 22 and other
officials of the educational system of Clarendon County including the
superintendent of education. They are the parties in charge of the various
schools which are situated within the aforesaid school district and which are
affected by the matters set forth in this cause.
The plaintiffs allege that they are discriminated against by the defendants
under color of the Constitution and laws of the State of South Carolina whereby
they are denied equal educational facilities [**29] and opportunities and that this denial is based
upon difference in race. And they show that the school system of this
particular school district and county (following the general pattern that it is
admitted obtains in the State of South Carolina) sets up two classes of
schools; one for people said to belong to the white race and the other for
people of other races but primarily for those said to belong to the Negro race
or of mixed races and either wholly, partially, or faintly alleged to be of
African or Negro descent. These plaintiffs bring this action for the
enforcement of the rights to which they claim they are entitled and on behalf
of many others who are in like plight and condition and the suit is denominated
a class suit for the purpose of abrogation of what is claimed to be the
enforcement of unfair and discriminatory laws by the defendants. Plaintiffs
claim that they are entitled to bring this case and that this court has
jurisdiction under the Fourteenth Amendment of the Constitution of the United
States and of a number of statutes of the United States, commonly referred to
as civil rights statutes. n1 The plaintiffs demand relief under the above
referred to sections of [**30] the laws of the United States by way of a
declaratory judgment and permanent injunction.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1. Fourteenth Amendment of the Constitution of the United States, Section 1;
Title 8
U.S.C.A. §§ 41, 43; Title 28,
U.S.C.A. § 1343.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
It is alleged that the defendants are acting under the authority granted them
by the Constitution and laws of the State of South Carolina and that all of
these are in contravention of the Constitution and laws of the United States.
The particular portions of the laws of South Carolina are as follows:
Article XI, Section 5 is as follows: 'Free public schools.- The General
Assembly shall provide for a liberal system of free public schools for all
children between the ages of six and twenty-one years * * *.'
Article XI, Section 7 is as follows: 'Separate schools shall be provided for
children of the white and colored races, and no child of either race shall ever
be [*539] permitted to attend a
school provided for children of the other race.'
Section 5377 of the Code of Laws of South [**31] Carolina is as follows: 'It shall be unlawful for
pupils of one race to attend the schools provided by boards of trustees for
persons of another race.'
It is further shown that the defendants are acting under the authority of the
Constitution and laws of the State of South Carolina providing for the creation
of various school districts, n2 and they have strictly separated and segregated
the school facilities, both elementary and high school, according to race.
There are, in said school district, three schools which are used exclusively by
Negroes: to wit, Rambay Elementary School, Liberty Hill Elementary School, and
Scotts bRanch Union (a combination of elementary and high school). There are in
the same school district, two schools maintained for whites, namely, Summerton
Elementary School and Summerton High School. The last named serves some of the
other school districts in Clarendon County as well as No. 22.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2. Constitution of South Carolina, Article XI, Section 5; Code of Laws, 5301,
5316, 5328, 5404 and 5405; Code of Laws of South Carolina, Sections 5303, 5306,
5343, 5409.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**32]
It appears that the plaintiffs filed a petition with the defendants requesting
that the defendants cease discrimination against the Negro children of public
school age; and the situation complained of not having been remedied or
changed, the plaintiffs now ask this court to require the defendants to grant
them their rights guaranteed under the Fourteenth Amendment of the Constitution
of the United States and they appeal to the equitable power of this court for
declaratory and injunctive relief alleging that they are suffering irreparable
injuries and that they have no plain adequate or complete remedy to redress the
wrongs and illegal acts complained of other than this suit. And they further
point out that large numbers of people and persons are and will be affected by
the decision of this court in adjudicating and clarifying the rights of Negroes
to obtain education in the public school system of the State of South Carolina
without discrimination and denial of equal facilities on account of their race.
The defendants appear and by way of answer deny the allegations of the
complaint as to discrimination and inequality and allege that not only are they
acting within the laws of the [**33] State in enforcing segregation but that all
facilities afforded the pupils of different races are adequate and equal and
that there is no inequality or discrimination practiced against these
plaintiffs or any others by by reason.of race or color. And they allege that
the facilities and opportunities furnished to the colored children are
substantially the same as those provided for the white children. And they
further base their defense upon the statement that the Constitutional and
statutory provisions under attack in this case, that is to say, the provisions
requiring separate schools because of race, are a reasonable exercise of the
State's police power and that all of the same are valid under the powers
possessed by the State of South Carolina and the Constitution of the United
States and they deny that the same can be held to be unconstitutional by this
Court.
The issues being so drawn and calling for a judgment by the United States Court
which would require the issuance of an injunction against State and County
officials, it became apparent that it would be necessary that the case be heard
in accordance with the statute applicable to cases of this type requiring the
calling of [**34] a three-judge court. n3
Such a court convened and the case was set for a hearing on May 28, 1951.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3. Title 28,
U.S.C.A. §§ 2281-2284.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The case came on for a trial upon the issues as presented in the complaint and
answer. But upon the call of the case, defendants' counsel announced that they
wished to make a statement on behalf of the defendants making certain
admissions and praying that the Court make a finding as to inequalities in
respect to buildings, equipment, facilities, curricula and other aspects of the
schools provided for children in School District 22 in Clarendon County [*540] and giving the public authorities time to
formulate plans for ending such inequalities. In this statement defendants
claim that they never had intended to discriminate against any of the pupils
and although they had filed an answer to the complaint, some five months ago,
denying inequalities they now admit that they had found some; but rely upon the
fact that subsequent to the institution of this suit, James F. Byrnes, [**35] the Governor of South Carolina, had stated
in his inaugural address that the State must take steps to provide money for
improving educational facilities and that thereafter, the Legislature had
adopted certain legislation. They stated that they hoped that in time they
would obtain money as a result of the foregoing and improve the school situation.
This statement was allowed to be filed and considered as an amendment to the
answer.
By this maneuver, the defendants have endeavored to induce this Court to avoid
the primary purpose of the suit. And if the Court should follow this suggestion
and fail to meet the issues raised by merely considering this case in the light
of another 'separate but equal' case, the entire purpose and reason for the
institution of the case and the convening of a three-judge court would be
voided. The 66 plaintiffs in this cause have brought this suit at what must
have cost much in effort and financial expenditures. They are here represented
by 6 attorneys, all, save one, practicing lawyers from without the State of
South Carolina and coming here from a considerable distance. The plaintiffs
have brought a large number of witnesses exclusive of themselves. [**36] As a matter of fact, they called and
examined 11 witnesses. They said that they had a number more coming who did not
arrive in time owing to the shortening of the proceedings and they also stated
that they had on hand and had contemplated calling a large number of other
witnesses but this became unnecessary by reason of the foregoing admissions by
defendants. It certainly appears that large expenses must have been caused by
the institution of this case and great efforts expended in gathering data,
making a study of the issues involved, interviewing and bringing numerous
witnesses, some of whom are foremost scientists in America. And in addition to
all of this, these 66 plaintiffs have not merely expended their time and money
in order to test this important Constitutional question, but they have shown
unexampled courage in bringing and presenting this cause at their own expense
in the fact of the long established and age-old pattern of the way of life
which the State of South Carolina has adopted and practiced and lived in since
and as a result of the institution of human slavery.
If a case of this magnitude can be turned aside and a court refused to hear
these basic issues by the [**37] mere device of admission that some buildings,
blackboards, lighting fixtures and toilet facilities are unequal but that they
may be remedied by the spending of a few dollars, then, indeed people in the
plight in which these plaintiffs are, have no adequate remedy or forum in which
to air their wrongs. If this method of judicial evasion be adopted, these very
infant plaintiffs now pupils in Clarendon County will probably be bringing
suits for their children and grandchildren decades or rather generations hence
in an effort to get for their descendants what are today denied to them. If
they are entitled to any rights as American citizens, they are entitled to have
these rights now and not in the future. And no excuse can be made to deny them
these rights which are theirs under the Constitution and laws of America by the
use of the false doctrine and patter called 'separate but equal' and it is the
duty of the Court to meet these issues simply and factually and without fear,
sophistry and evasion. If this be the measure of justice to be meted out to
them, then, indeed, hundreds, nay thousands, of cases will have to be brought
and in each case thousands of dollars will have to be spend [**38] for the employment of legal talent and
scientific testimony and then the cases will be turned aside, postponed or
eliminated by devices such as this.
We should be unwilling to straddle or avoid this issue and if the suggestion
made by these defendants is to be adopted as the [*541] type of justice to be meted out by this
Court, then I want no part of it.
And so we must and do face, without evasion or equivocation, the question as to
whether segregation in education in our schools is legal or whether it cannot
exist under out American system as particularly enunciated in the Fourteenth
Amendment to the Constitution of the United States.
Before the American Civil War, the institution of human slavery had been
adopted and was approved in this country. Slavery was nothing new in the world.
From the dawn of history we see aggressors enslaving weak and less fortunate
neighbors. Back through the days of early civilization man practiced slavery.
We read of it in Biblical days; we read of it in the Greek City States and in
the great Roman Empire. Throughout medieval Europe, forms of slavery existed
and it was widely practiced in Asia Minor and the Eastern countries and perhaps
reached [**39] its worst form in Nazi
Germany. Class and caste have, unfortunately, existed through the ages. But, in
time, mankind, through evolution and progress, through ethical and religious
concepts, through the study of the teachings of the great philosophers and the
great religious teachers, including especially the founder of Christianity-
mankind began to revolt against the enslavement of body, mind and soul of one
human being by another. And so there came about a great awakening. The British
who had indulged in the slave trade, awakened to the fact that it was immoral
and against the right thinking ideology of the Christian world. And in this
country, also, came about a moral awakening. Unfortunately, this had not been
sufficiently advanced at the time of the adoption of the American Constitution
for the institution of slavery to be prohibited. But there was a struggle and
the better thinking leaders in our Constitutional Convention endeavored to
prohibit slavery but unfortunately compromised the issue on the insistent
demands of those who were engaged in the slave trade and the purchase and use
of slaves. And so as time went on, slavery was perpetuated and eventually
became a part of the [**40]
life and culture of certain of the States of this Union although the rest of
the world looked on with shame and abhorrence.
As was so well said, this country could not continue to exist one-half slave
and one-half free and long years of war were entered into before the nation was
willing to eradicate this system which was, itself, a denial of the brave and
fine statements of the Declaration of Independence and a denial of freedom as
envisioned and advocated by our Founders.
The United States then adopted the 13th, 14th and 15th Amendments and it cannot
be denied that the basic reason for all of these Amendments to the Constitution
was to wipe out completely the institution of slavery and to declare that all
citizens in this country should be considered as free, equal and entitled to
all of the provisions of citizenship.
The Fourteenth Amendment to the Constitution of the United States is as
follows: 'Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and and
of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of [**41] the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.'
It seems to me that it is unnecessary to pore through voluminous arguments and
opinions to ascertain what the foregoing means. And while it is true that we
have had hundreds, perhaps thousands, of legal opinions outlining and defining
the various effects and overtones on our laws and life brought about by the adoption
of this Amendment, one of ordinary ability and understanding of the English
language will have no trouble in knowing that when this Amendment was adopted,
it was intended to do away with discrimination between our citizens.
The Amendment refers to all persons. There is nothing in there that attempts to
separate, segregate or discriminate against any person because of their being
of [*542] European, Asian or African
ancestry. And the plaintiff intendment is that all of these persons are
citizens. And then it is provided that no State shall make or enforce any law
which shall abridge the privileges of citizens nor shall any state deny 'to any
person within its jurisdiction [**42] the equal protection of the laws.'.
The Amendment was first proposed in 1866 just about a year after the end of the
American Civil War and the surrender of the Confederate States government.
Within two years, the Amendment was adopted and became part of the Constitution
of the United States. It cannot be gainsaid that the Amendment was proposed and
adopted wholly and entirely as a result of the great conflict between freedom
and slavery. This will be amply substantiated by an examination and
appreciation of the proposal and discussion and Congressional debates (see
Flack on Adoption of the 14th Amendment) and so it is undeniably true that the
three great Amendments were adopted to eliminate not only slavery, itself, but
all idea of discrimination and difference between American citizens.
Let us now come to consider whether the Constitution and Laws of the State of
South Carolina which we have heretofore quoted are in conflict with the true
meaning and intendment of this Fourteenth Amendment. The whole discussion of
race and ancestry has been intermingled with sophistry and prejudice. What
possible definition can be found for the so-called white race, Negro race or
other races? Who [**43] is to decide and what is
the test? For years, there was much talk of blood and taint of blood. Science
tells us that there are but four kinds of blood: A, B, AB and O and these are
found in Europeans, Asiatics, Africans, Americans and others. And so we need
not further consider the irresponsible and baseless references to preservation
of 'Caucasian blood'. So then, what test are we going to use in opening our
school doors and labeling them 'white' and 'Negro'? The law of South Carolina
considers a person of one-eighth African ancestry to be a Negro. Why this
proportion? Is it based upon any reason: anthropological, historical or
ethical? And how are the trustees to know who are 'whites' and who are
'Negroes'? If it is dangerous and evil for a white child to be associated with
another child, one of whose great-grandparents was of African descent, is it
not equally dangerous for one with a one-sixteenth percentage? And if the State
has decided that there is danger in contact between the whites and Negroes,
isn't it requisite and proper that the State furnish a series of schools one
for each of these percentages? If the idea is perfect racial equality in
educational systems, why should [**44] children of pure African descent be brought in
contact with children of one-half, one-fourth, or one-eighth such ancestry? To
ask these questions is sufficient answer to them. The whole thing is
unreasonable, unscientific and based upon unadulterated prejudice. We see the
results of all of this warped thinking in the poor under-privileged and
frightened attitude of so many of the Negroes in the southern states; and in
the sadistic insistence of the 'white supremacists' in declaring that their
will must be imposed irrespective of rights of other citizens. This claim of
'white supremacy', while fantastic and without foundation, is really believed
by them for we have had repeated declarations from leading politicians and
governors of this state and other states declaring that 'white supremacy' will
be endangered by the abolition of segregation. There are present threats,
including those of the present Governor of this state, going to the extent of
saying that all public education may be abandoned if the courts should grant
true equality in educational facilities.
Although some 73 years have passed since the adoption of the Fourteenth
Amendment and although it is clearly apparent that [**45] its chief purpose, (perhaps we may say its
only real purpose) was to remove from Negroes the stigma and status of slavery
and to confer upon them full rights as citizens, nevertheless, these has been a
long and arduous course of litigation through the years. With some setbacks here
and there, the courts have generally and progressively recognized the true
meaning of the Fourteenth Amendment and have, from time to time, stricken down
the attempts [*543] made by state governments
(almost entirely those of the former Confederate states) to restrict the
Amendment and to keep Negroes in a different classification so far as their
rights and privileges as citizens are concerned. A number of cases have reached
the Supreme Court of the United States wherein it became necessary for that tribunal
to insist that Negroes be treated as citizens in the performance of jury duty.
See Strauder v. West Virginia n4 , where the Court says 100 U.S.at page 307, 25
L.Ed. 664; '* * * What is this but declaring that the law in the States
shall be the same for the blacks as for the white; that all persons, whether
colored or white, shall stand equal before the laws of the States, and, in
regard to the colored [**46]
race, for whose protection the amendment was primarily designed, that no
discrimination shall be made against them by law because of their color? The
words of the amendment, it is true, are prohibitory, but they contain a
necessary implication of a positive immunity, or right, most valuable to the
colored race,- the right to exemption from unfriendly legislation against them
distinctively as colored- exemption from legal discriminations, implying
inferiority in civil society, lessening the security of their enjoyment of the
rights which other enjoy, and discriminations which are steps towards reducing
them to the condition of a subject race.'
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4. 100
U.S. 303; 25
L.Ed. 664.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Many subsequent cases have followed and confirmed the right of Negroes to be
treated as equals in all jury and grand jury service in the states.
The Supreme Court has stricken down from time to time statutes providing for
imprisonment for violation of contracts. These are known as peonage cases and
were in regard to statutes primarily [**47] aimed at keeping the Negro 'in his place'. n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5. Peonage: Bailey
v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191; U.S.
v. Reynolds, 235 U.S. 133, 35 S.Ct. 86, 59 L.Ed. 162.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In the field of transportation the court has now, in effect declared that
common carriers engaged in interstate travel must not and cannot segregate and
discriminate against passengers by reason of their race or color. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6. Transportation: Mitchell
v. U.S., 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201; Morgan
v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317; Henderson
v. U.S., 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302; Chance
v. Lambeth, 4 Cir., 186 F.2d 879, certiorari denied Atlantic
Coast Line R. Co. v. Chance, 341 U.S. 941, 71 S.Ct. 1001, May 28, 1951.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Frequent and repeated instances of prejudice in criminal cases because of the
brutal treatment [**48] of defendants because of
their color have been passed upon in a large number of cases. n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7. Criminals: Brown
v. Mississippi, 296 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers
v Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Shepherd
v. Florida, 342 U.S. 50, 71 S.Ct. 549.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Discrimination by segregation of housing facilities and attempts to control the
same by covenants have also been outlawed. n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8. Housing: Buchanan
v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Shelley
v. Kraemer, 334 U.S. 1, 58 S.Ct. 836, 92 L.Ed. 1161.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In the field of labor employment and particularly the relation of labor unions
to the racial problem, discrimination has again been forbidden. n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9. Labor: Steele
v. Louisville & N.R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall
v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [**49]
Perhaps the most serious battle for equality or rights has been in the field of
exercise of suffrage. For years, certain of the southern states have attempted
to prevent the Negro from taking part in elections by various devices. It is
unnecessary to enumerate the long list of cases, but from time to time courts
have stricken down all of these various devices classed as the 'grandfather
clause', educational tests and white private clubs. n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10. Suffrage: Guinn
v. U.S., 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340; Nixon
v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Lane
v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; Smith
v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Elmore
v. Rice, D.C., 72 F.Supp. 516; 4 Cir., 165
F.2d 387; certiorari denied, 333
U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; Brown
v. Baskin, D.C., 78 F.Supp. 933; Brown
v. Baskin, D.C., 80 F.Supp. 1017; 4 Cir., 174
F.2d 391.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*544] The foregoing are but a few
brief reference to some of the major landmarks in the fight [**50] by Negroes for equality. We now come to the
more specific question, namely, the field of education. The question of the
right of the state to practice segregation by race in certain educational
facilities has only recently been tested in the courts. The cases of Missouri
ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 and Sipuel
v. Board of Regents, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247, decided that
Negroes were entitled to the same type of legal education that whites were
given. It was further decided that the equal facilities must be furnished
without delay or as was said in the Sipul case, the state must provide for
equality of education for Negroes 'as soon as it does for applicants of any
other group'. But still we have not reached the exact question that is posed in
the instant case.
We now come to the cases that, in my opinion, definitely and conclusively
establish the doctrine that separation and segregation according to race is a
violation of the Fourteenth Amendment. I, of course, refer to the cases of Sweatt
v. Painter, 339 U.S. 629, 70 S,Ct.
848, 94 L.Ed. 1114, and McLaurin
v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149.
These [**51] cases have been followed in
a number of lower court decisions so that there is no longer any question as to
the rights of Negroes to enjoy all the rights and facilities afforded by the
law schools of the States of Virginia, Louisiana, Delaware, North Carolina and
Kentucky. So there is no longer any basis for a state to claim the power to
separate according to race in graduate schools, universities and colleges.
The real rock on which the defendants base their case is a decision of the
Supreme Court of the United States in the case of Plessy
v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. This case arose in
Louisiana and was heard on appeal in 1895. The case related to the power of the
State of Louisiana to require separate railroad cars for white and colored
passengers and the Court sustained the State's action. Much discussion has
followed this case and the reasoning and decision has been severely criticized
for many years. And the famous dissenting opinion by Mr. Justice Harlan has
been quoted throughout the years as a true declaration of the meaning of the
Fourteenth Amendment and of the spirit of the American Constitution and the American
way of life. It has also been [**52] frequently pointed out that when that decision was
made, practically all the persons of the colored or Negro race had either been
born slaves or were the children of slaves and that as yet due to their
circumstances and surroundings and the condition in which they had been kept by
their former masters, they were hardly looked upon as equals or as American
citizens. The reasoning of the prevailing opinion in the Plessy case stems
almost completely from a decision by Chief Justice Shaw of Massachusetts n11 ,
which decision was made many years before the Civil War and when, of course,
the Fourteenth Amendment had not even been dreamed of.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11. Roberts v. City of Boston, 5 Cush., Mass., 198.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
But these arguments are beside the point in the present case. And we are not
called upon to argue or discuss the validity of the Plessy case.
Let it be remembered that the Plessy case decided that separate railroad
accommodations might be required by a state in intra-state transportation. How
similar attempts relating to [**53] inter-state transportation have fared have been
shown in the foregoing discussion and notes. n12 It has [*545] been said and repeated here in argument that
the Supreme Court has refused to review the Plessy case in the Sweatt, McLaurin
and other cases and this has been pointed to as proof that the Supreme Court
retains and approves the validity of Plessy. It is astonishing that such an
argument should be presented or used in this or any other court. The Supreme
Court in Sweatt and McLaurin was not considering railroad accommodations. It
was considering education just as we are considering it here and the Supreme
Court distinctly and unequivocally held that the attempt to separate the races
in education was violative of the Fourteenth Amendment of the Constitution. Of
course, the Supreme Court did not consider overruling Plessy. It was not
considering railroad matters, had no arguments in regard to it, had no business
or concern with railroad accommodations and should not have even been asked to
refer to that case since it had no application or business in the consideration
of an educational problem before the court. It seems to me that we have already
spent too much time and wasted [**54] efforts in attempting to show any similarity
between traveling in a railroad coach in the confines of a state and furnishing
education to the future citizens of this country.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12. See cases cited in Note 6.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The instant case which relates to lower school education is based upon exactly
the same reasoning followed in the Sweatt and McLaurin decisions. In the Sweatt
and McLaurin decisions. In the Sweatt case, it was clearly recognized that a
law school for Negro students had been established and that the Texas courts
had found that the privileges, advantages and opportunities offered were
substantially equivalent to those offered to white students at the University
of Texas. Apparently, the Negro school was adequately housed, staffed and
offered full and complete legal education, but the Supreme Court clearly
recognized that education does not alone consist of fine buildings, class room
furniture and appliances but that included in education must be all the
intangibles that come into play in preparing one for [**55] meeting life. As was so well said by the
Court: '* * * Few students and no one who has practiced law would choose to
study in an academic vacuum, removed from the interplay of ideas and the
exchange of views with which the law is concerned.' (339
U.S. 629, 70 S.Ct. 850.) And the Court quotes with approval from its
opinion in Shelley v. Dramer, supra: '* * * Equal protection of the laws is not
achieved through indiscriminate imposition of inequalities.' The Court further
points out that this right to a proper and equal education is a personal one
and that an individual is entitled to the equal protection of the laws. And in
closing, the Court, referring to certain cases cited, says: 'In accordance with
these cases, petitioner may claim his full constitutional right: legal
education equivalent to that offered by the State to students of other races.
Such education is not available to him in a separate law school as offered by
the State.'
In the companion case of McLaurin v. Oklahoma State Regents, McLaurin was a
student who was allowed to attend the same classes, hear the same lectures,
stand the same examinations and eat in the same cafeteria; but he sat in a
marked off place and had [**56] a separate table assigned to him in the library and
another one in the cafeteria. It was said with truth that these facilities were
just as good as those afforded to white students. But the Supreme Court says
that even though this be so:
'These restrictions were obviously imposed in order to comply, as nearly as
could be, with the statutory requirements of Oklahoma. But they signify that
the State, in administering the facilities it affords for professional and
graduate study, sets McLaurin apart from the other students. The result is that
appellant is handicapped in his pursuit of effective graduate instruction. Such
restrictions impair and inhibit his ability to study, to engage in discussions
and exchange views with other students, and, in general, to learn his
profession.
'Our society grows increasingly complex, and our need for trained leaders
increases correspondingly. Appellant's case represents, perhaps, the epitome of
that need, [*546] for he is attempting to
obtain an advanced degree in education, to become, by definition, a leader and
trainer of others. Those who will come under his guidance and influence must be
directly affected by the education he receives. Their [**57] own education and development will
necessarily suffer to the extent that his training is unequal to that of his
classmates. State-imposed restrictions which produce such inequalities cannot
be sustained.' (339
U.S. 637, 70 S.Ct. 853.)
The recent case of McKissick
v. Charmichael, 4 Cir., 187 F.2d 949, 953, wherein the question of
admission to the law school of the University of North Carolina was decided
follows and amplifies the reasoning of the Sweatt and McLaurin cases. In the
McKissick case, officials of the State of North Carolina took the position that
they had adopted a fixed and continued purpose to establish and build up
separate schools for equality in education and pointed with pride to the large
advances that they had made. They showed many actual physical accomplishments
and the establishment of a school which they claimed was an equal in many
respects and superior in some respects to the school maintained for white
students. The Court of Appeals for the 4th Circuit, in this case, speaking
through Judge Soper, meets this issue without fear or evasion and says: 'These
circumstances are worthy of consideration by any one who is responsible for the
solution of a difficult [**58] racial problem; but they do not meet the
complainants' case or overcome the deficiencies which it discloses. Indeed the
defense seeks in part to avoid the charge of inequality by the paternal
suggestion that it would be beneficial to the colored race in North Carolina as
a whole, and to the individual plaintiffs in particular, if they would
cooperate in promoting the policy adopted by the State rather than seek the
best legal education which the State provides. The duty of the federal courts,
however, is clear. We must give first place to the rights of the individual
citizen, and when and where he seeks only equality of treatment before the law,
his suit must prevail. It is for him to decide in which direction his advantage
lies.'
In the instant case, the plaintiffs produced in large number of witnesses. It
is significant that the defendants brought but two. These last two were not
trained educators. One was an official of the Clarendon schools who said that
the school system needed improvement and that the school officials were hopeful
and expectant of obtaining money from State funds to improve all facilities.
The other witness, significantly named Crow, has been recently employed [**59] by a commission just established which, it
is proposed, will supervise educational facilities in the State and will handle
monies if, as and when the same are received sometime in the future. Mr. Crow
did not testify as an expert on education although he stated flatly that he
believed in separation of the races and that he heard a number of other people
say so, including some Negroes, but he was unable to mention any of their
names. Mr. Crow explained what was likely and liable to happen under the 1951
State Educational Act to which frequent reference was made in argument on
behalf of the defense.
It appears that the Governor of this state called upon the legislature to take
action in regard to the dearth of educational facilities in South Carolina
pointing out the low depth to which the state had sunk. As a result, an act of
the legislature was adopted (this is a part of the General Appropriations Act
adopted at the recent session of the legislature and referred to as the 1951
School Act). This Act provides for the appointment of a commission which is to
generally supervise educational facilities and imposes sales taxes in order to
to raise money for educational purposes and authorizes [**60] the issuance of bonds not to exceed the sum
of $ 75,000,000, for the purpose of making grants to various counties and
school districts to defray the cost of capital improvement in schools. The
Commission is granted wide power to accept applications for and approve such
grants as loans. It is given wide power as to what schools and school districts
are [*547] to receive monies and it is
also provided, that from the taxes there are to be allocated funds to the
various schools based upon the enrollment of pupils. Nowhere is it specifically
provided that there shall be equality of treatment as between whites and
Negroes in the school system. It is openly and frankly admitted by all parties
that the present facilities are hopelessly disproportional and no one knows how
much money would be required to bring the colored school system up to a parity
with the white school system. The estimates as to the cost merely of
equalization of physical facilities run anywhere from forty to eighty million
dollars. Thus, the position of the defendants is that the rights applied for by
the plaintiffs are to be denied now because the State of South Carolina intends
(as evidenced by a general appropriations [**61] bill enacted by the legislature and a speech made
by its Governor) to issue bonds, impose taxes, raise money and to do something
about the inadequate schools in the future. There is no guarantee or assurance
as to when the money will be available. As yet, no bonds have been printed or
sold. No money is in the treasury. No allocation has been made to the Clarendon
school district or any other school districts and not even application blanks
have, as yet, been printed. But according to Mr. Crow, the Clarendon
authorities have requested him to send them blanks for this purpose if, as and
when they come into being. Can we seriously consider this a bona-fide attempt
to provide equal facilities for our school children?
On the other hand, the plaintiffs brought many witnesses, some of them of
national reputation in various educational fields. It is unnecessary for me to
review or analyze their testimony. But they who had made studies of education
and its effect upon children, starting with the lowest grades and studying them
up through and into high school, unequivocally testified that aside from
inequality in housing appliances and equipment, the mere fact of segregation,
itself, had a [**62] deleterious and warping
effect upon the minds of children. These witnesses testified as to their study
and researches and their actual tests with children of varying ages and they
showed that the humiliation and disgrace of being set aside and segregated as
unfit to associate with others of different color had an evil and ineradicable
effect upon the mental processes of our young which would remain with them and
deform their view on life until and throughout their maturity. This applies to
white as well as Negro children. These witnesses testified from actual study
and tests in various parts of the country, including tests in the actual
Clarendon School district under consideration. They showed beyond a doubt that
the evils of segregation and color prejudice come from early training. And from
their testimony as well as from common experience and knowledge and from our
own reasoning, we must unavoidably come to the conclusion that racial prejudice
is something that is acquired and that that acquiring is in early childhood.
When do we get our first ideas of religion, nationality and the other basic
ideologies? The vast number of individuals follow religious and political
groups because [**63] of their childhood training.
And it is difficult and nearly impossible to change and eradicate these early
prejudices, however strong may be the appeal to reason. There is absolutely no
reasonable explanation for racial prejudice. It is all caused by unreasoning
emotional reactions and these are gained in early childhood. Let the little
child's mind be poisoned by prejudice of this kind and it is practically
impossible to ever remove these impressions however many years he may have of
teaching by philosophers, religious leaders or patriotic citizens. If
segregation is wrong then the place to stop it is in the first grade and not in
graduate colleges.
From their testimony, it was clearly apparent, as it should be to any
thoughtful person, irrespective of having such expert testimony, that
segregation in education [*548] can never produce equality and that it is an evil
that must be eradicated. This case presents the matter clearly for adjudication
and I am of the opinion that all of the legal guideposts, expert testimony, common
sense and reason point unerringly to the conclusion that the system of
segregation in education adopted and practiced in the State of South Carolina
must [**64] go and must go now.
Segregation is per se inequality.
As heretofore shown, the courts of this land have stricken down discrimination
in higher education and have declared unequivocally that segregation is not
equality. But these decisions have pruned away only the noxious fruits. Here in
this case, we are asked to strike its very root. Or rather, to change the
metaphor, we are asked to strike at the cause of infection and not merely at
the symptoms of disease. And if the courts of this land are to render justice
under the laws without fear or favor, justice for all men and all kinds of men,
the time to do it is now and the place is in the elementary schools where our
future citizens learn their first lesson to respect the dignity of the
individual in a democracy.
To me the situation is clear and important, particularly at this time when our
national leaders are called upon to show to the world that our democracy means
what it says and that it is a true democracy and there is no under-cover
suppression of the rights of any of our citizens because of the pigmentation of
their skins. And I had hoped that this Court would take this view of the
situation and make a clear cut declaration [**65] that the State of South Carolina should follow the
intendment and meaning of the Constitution of the United States and that it
shall not abridge the privileges accorded to or deny equal protection of its
laws to any of its citizens. But since the majority of this Court feel
otherwise, and since I cannot concur with them or join in the proposed decree,
this opinion is filed as a dissent.