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A Descriptive Analysis Of Oral Argument Before The United States Supreme Court In The School Segregation Cases, 1952-1953

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A Descriptive Analysis Of Oral Argument Before The United States Supreme Court In The School Segregation Cases, 1952-1953

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Content This dissertation has bssn microfilmed exactly as received ® 7-5308 SCHWARTZ, Ruth Evelyn, 1921- A DESCRIPTIVE ANALYSIS OF ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE SCHOOL SEGREGATION CASES, 1952-1953. U niversity of Southern C alifornia, Ph.D ., 1966 Speech-Theater University Microfilms, Inc., Ann Arbor, Michigan © C opyright by RUTH EVELYN SCHWARTZ 1967 A DESCRIPTIVE ANALYSIS OP ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE SCHOOL SEGREGATION CASES, 1952-1953 by Ruth Evelyn Schwartz A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (Speech) June 1966 UNIVERSITY O F SOUTHERN CALIFORNIA THE GRADUATE SCHOOL UNIVERSITY PARK LOS ANOELES, CALIFORNIA 0 0 0 0 7 This dissertation, written by _______ ___ £utk.£yfilm-S£kwja>i:£&.__________ under the direction of hsx. Dissertation Com mittee, and approved by all its members, has been presented to and accepted by the Graduate School, in partial fulfillm ent of requirements for the degree of D O C T O R O F P H IL O S O P H Y Date J u n £ ,...L 9 .6 .6 . , TION COMMITTEE Chairman TABLE OP CONTENTS Chapter Page I. THE PROBLEM AND RESEARCH DESIGN ............. 1 The Problem................................ 1 Research Design ............................ 12 II. ORAL ADVOCACY: FUNCTION, CHARACTERISTICS AND ESSENTIAL ELEMENTS ..................... 26 Function.....................................26 Characteristics and Essential Elements of Oral Advocacy..................30 III. SOCIAL SCIENCE BACKGROUND ................... 57 IV. LEGAL-HISTORICAL BACKGROUND ................. 88 Introduction............... 88 Applicable Constitutional and Statutory Enactments ................... 95 Fifth Amendment (1791) 95 Thirteenth Amendment (1865) ............. 95 Fourteenth Amendment (1868) ............. 95 Civil Rights Act (1866)................. 95 Civil Rights Act (1870)................. 97 Civil Rights Act (1875)................. 98 Applicable Cases .......................... 99 The Slaughterhouse Cases (1873) ......... 99 Strauder v. West Virginia (1880) .... 101 Ex Parte Virginia (lBbO) ............... 102 The Civil Rights Cases (1883) ........... 103 Plessy v. Ferguson (1896) ............... 109 Cummlng v. Richmond County Board of Education (1&99).............. 118 Gong Lum v. Rice (1927)................. 122 Missouri ex rel. Gaines v. Canada (1938) . . . ................. 124 Sipuel v. Board of Regents of the University of Oklahoma (1948) T .... 129 ii Chapter Page Sweatt v. Painter (1950) ................. 130 McLaurln v. Oklahoma State Regents for Higher Education \ 195QJ • ~ .... 134 Legal-Factual Perspective on the School Segregation Cases of 1952 and 1953 139 V. THE ORAL ARGUMENTS, 1952.......................143 Brown v. Board of Education December 9, 1952 ........................ 143 Argument on Behalf of Appellants by Robert L. Carter.....................144 Argument on Behalf of Appellees by Paul E. Wilson.......................163 Rebuttal Argument on Behalf of Appellants by Robert L. Carter.....................169 Briggs v. Elliott December 9, 1$, 1952 ..................... 170 Argument on Behalf of Appellants by Thurgood Marshall ................... 170 Argument on Behalf of Appellees by John W. Davis......................... 180 Rebuttal Argument on Behalf of Appellants by Thurgood Marshall ................... 188 Davis v. County School Board of Prince Edward County. Virginia ........... 193 Argument on Behalf of Appellants by Spottswood W. Robinson, I I I...........193 Argument on Behalf of Appellees by T. Justin Moore.......................204 Argument on Behalf of Appellees by J. Lindsay Almond, Jr..................214 Rebuttal Argument on Behalf of Appellants by Spottswood W. Robinson, III...........217 Bolling v. Sharpe December 10, 11, 1952 220 Argument on Behalf of Petitioners by George E. C. H a y e s ...................220 Argument on Behalf of Petitioners by James M. Nabrit, Jr....................231 Argument on Behalf of Respondents by Milton D. Korman.....................238 iii Chapter Page Rebuttal Argument on Behalf of Appellants by James Nabrlt, Jr........................249 Gebhart v. Belton December 11, 1952 ........................ 250 Argument on Behalf of Petitioners by H. Albert Y o u n g ...................... 252 Argument on Behalf of Respondents by Louis L. Redding....................261 Argument on Behalf of Respondents by Jack Greenberg.........................265 VI. THE RE ARGUMENT: 1953 ........................ 269 Briggs v. Elliott and County School Board of Prince Edward County, Virginia, December 7» 8, 1953 ........... 270 Argument on Behalf of Appellants by Thurgood Marshall ................. 278 Argument on Behalf of Appellees by John W. D a v i s .........................289 Argument on Behalf of Appellees by T. Justin M o o r e ...................... 297 Argument on Behalf of Appellees by J. Lindsay A l m o n d................. 30 3 Rebuttal on Behalf of Appellants by Thurgood Marshall ................. 306 Argument on Behalf of the United States by J. Lee R a n k i n ......................311 Brown v. Board of Education December 6, 1953 • T~. T ............... 322 Argument on Behalf of Appellants by Robert L. Carter....................322 Argument on Behalf of the State of Kansas by Paul E. Wilson......................325 Bolling v. Sharpe December 10, lT, 1952 .................... 329 Argument on Behalf of Petitioners by George E. C. Hayes..................330 Argument on Behalf of Petitioners by James M. Nabrlt, Jr..................333 Argument on Behalf of Respondents by Milton D. Korman....................338 iv Chapter Page Rebuttal Argument on Behalf of Petitioners by James M. Nabrlt, Jr.................... 343 Gebhart v. Belton December 11, 1952......................... 346 Argument on Behalf of Petitioners by H. Albert Young........................ 346 Argument on Behalf of Respondents by Jack Greenberg........................351 Argument on Behalf of Respondents by Thurgood Marshall .................... 354 VII. FINDINGS, INTERPRETATIONS AND CONCLUSIONS.............................. 357 VIII. SUMMARY AND SUGGESTION FOR FURTHER RESEARCH............... 394 Summary....................................... 394 Suggestions for Further Research ........... 396 APPENDIXES Appendix A. Participating Justices and Counsel.......................... 400 Appendix B. Letter, Questions to Participating Counsel and Responses ............. 403 Appendix C. Glossary of Legal Terms ............. 429 Appendix D. Introductory Portion of Appellants’, Appellees’, Petitioners', and Respondents' Briefs Submitted to the Supreme Court, October Term, 1952 ........................... 532 Appendix E. Supreme Court's Order on Reargument and Related Memorandum............................ 536 BIBLIOGRAPHY .......................................... 540 v CHAPTER I THE PROBLEM AND RESEARCH DESIGN The Problem Origin of the Problem The struggle of the American Negro for "first-class" citizenship has always Interested this writer. The Negro's right to vote, to reside In a home or location of his choice, to freely use public facilities and to send his children to racially unsegregated public schools is and should be the concern of all Americans. The decisions in Brown v. Board of Education and Bolling v. Sharpe in 195^ declared for the first time in American history that segregation of white and Negro chil dren on the basis of racial origin was unconstitutional. Fourteen advocates argued for over twenty-one hours in 1952 and 1953 seeking to orally persuade the Court that the United States should either retain the status quo— segre gation— or, in the alternative, desegregate the elementary and high schools. As a student of speech and oral communication, these cases took on special meaning. Here was a subject area that blended the elements of academic interest and personal concern. 1 2 It appeared from preliminary reading that scholars in many academic disciplines had linked their knowledge and experience in a mutual effort to probe and explain numerous facets of the racial problem. Sociologists, psychologists, political scientists, historians, legal scholars— all had written extensively about the specific question of school integration. Initial research Indicated intensive and ex tensive evaluation and critiques of the historic decision of May 17, 195^, but it manifested an apparent dearth of material and information concerning the actual arguments of the advocates who sought to orally persuade the Court. This writer, therefore, became interested in the following research problem. Statement of the Problem The general problem in this study was to describe and analyze oral argument before the United States Supreme Court in the School Segregation Cases, 1952 and 1953. More specifically, the problem focused upon the nature of the process of oral advocacy, the substance and language of the arguments, including the questions, answers, and comments by the Justices and counsel. All considerations of oral argument herein were confined to the stenographic transcript. To facilitate the study it was also necessary to examine the written briefs submitted to the Court in these cases and to relate the oral arguments to the context of the legal and sociologi cal background pertaining to school segregation prior to the Supreme Court cases considered here. Oral argument was heard In 1955 on the questions of Implementation of the 1954 decisions. Those arguments were not described or analyzed In this study. No attempt was made to treat the many philosophical phases of judicial concern such as the nature of the Judi cial process, the function of appellate court Judges, and Judicial restraint. This study did not undertake the analysis of such characteristics of delivery as vocal quality, pitch, rate, and loudness, nor such visual char acteristics as posture, facial expression, and gesture. Significance of the Problem The persuasive art of the advocates who argued the School Segregation Cases before the Supreme Court was specially noted because of the national and world interest in the progress and ultimate decisions in those cases. In an amicus curiae brief presented on behalf of the United States Government by its then Attorney General, James P. McGranery, it was stated: Because of the national importance of the Constitutional questions presented in these cases,the United States considers it appropriate to submit this brief as amicus curiae. In recent years the Federal Government has increas ingly recognized its special responsibility for assur ing vindication of the fundamental civil rights 4 guaranteed by the Constitution. The President has stated: "We shall not . . . finally achieve the ideals for which this Nationswas founded so long as any American suffers discrimination as a result of his race, or religion, or color, or the land of origin of his forefathers. . . . The Federal Government has a clear duty to see that Constitutional guarantees of indivi dual liberties and of equal protection under the laws are not denied or abridged anywhere in our Union. This contention [discrimination against Negro children solely because of their color] raises ques tions of the first importance in our society. For racial discriminations imposed by law, or having the sanction or support of government, inevitably tend to undermine the foundations of a society dedicated to freedom, justice, and equality. The proposition that all men are created equal is not mere rhetoric. It implies a rule of law— an indispensable condition to a civilized society— under which all men stand equal and alike in the rights and opportunities secured to them by their government. Under the Constitution every agency of government, national and local, legislative, executive, and judicial, must treat each of our people as an American, and not as a member of a particular group classified on the basis of race or some other constitutional irrelevancy. The color of a man's skin— like his religious beliefs, or his political attachments, or the country from which he or his ancestors came to the United States— does not diminish or alter his legal status or constitutional rights. The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist pro paganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.2 ■^Message to the Congress, February 2, 1948, H. Doc. No. 516, 80th Cong., 2d Sess., p. 2. 2 Brief for the United States as amicus curiae, October term, 1952, in the Supreme Court of the United States, pp. 1-6. The United States Supreme Court expressly indicated the importance and significance of the School Segregation Cases in an early stage of Brown v. Board of Education (Kansas case). Neither the school authorities nor the Attorney General of the State of Kansas filed a brief or indicated a readiness to argue that case. In a Per Curiam statement, the Court said: Because of the national importance of the issue presented and because of its Importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State's default shall be construed as a concession of invalidity [of the laws and Constitution of Kansas],3 In 195*1, the Court adopted Rule 45 (1), as follows: The Court looks with disfavor on the submission of cases on briefs, without oral argument, and there fore may, notwithstanding such submission, require oral argument by the parties.^ The decision of the Supreme Court in Brown v. Board of Education, and related cases holding that the doctrine of separate-but-equal has no place in the field of public education and further holding that "the plaintiffs and others similarly situated for whom the action has been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by 3 Brown v. Board of Education, 344 U.S. l4l, 142. i i Robert L. Stern and Eugene Gressman, Supreme Court Practice, 1954, B.N.A., Inc., Washington, D.C., 195**, P» 482. 6 the Fourteenth Amendment . . . ," constituted one of the major "breakthrough" decisions In the field of race rela tions in the United States. "On May 17, 195M, the Court Initiated the greatest social revolution of this genera tion."5 Oral advocacy before the Supreme Court of the United States is exacting, at times inspiring, and may play a decisive role in decision making. "I suppose that, aside from cases of exceptional difficulty the impression that a Judge has at the close of a full oral argument accords with the conviction which controls his final vote."5 In 1931 Justice Frankfurter wrote of the importance of the Supreme Court's protection of its time for adequate consideration of cases . . . and essential to adequate consideration is oral argument. Despite all the pressure of the docket and the consequent efforts of the Court to stiffen the administration of its business, it has happily never sacrificed the need for oral argument to illusory efficiency. The atmosphere of the Court is uncongenial to oratory and the restrictions imposed on counsel tend to deflate rhetoric. But true argument— the exploration of issues, particu larly through' sharp questioning from the bench— 5 ^Alpheus T. Mason, The Supreme Court: Palladium of Freedom (Ann Arbor: University of Michigan Press, 1062), p. 173. 6 Charles Evans Hughes, The Supreme Court of the United States (New York: Columbia University fress, i$28), iT 61. 7 continues to be one of the liveliest traditions of the Court.7 Anthony Lewis, Pulitzer Prize winning reporter covering the Supreme Court for the New York Times. wrote colorfully: Grandiose, intimate; ritualistic, informal; austere, human. These paradoxical terms pass through the mind of the observer as he surveys the scene in the Supreme Court of the United States . . . oral argu ment is both the most important and the most inter esting aspect of the relatively small portion of the court’s work that is in public view. It can win or lose cases, it exposes the personalities of the court and counsel and it conveys the continuing sense of the court as an institution.8 In a letter to this writer Robert L. Carter, General Counsel for the National Association for the Advancement of Colored People and one of the NAACP counsel in the school cases wrote, In my opinion, the oral argument in this case was of critical importance in that it helped the court test the validity of the legal arguments presented and also to determine how to deal with the issue.9 7 'Felix Frankfurter and James M. Landis, "The Business of the Supreme Court at October Term, 1931," 46 Harvard Law Review, 226, 236-237 (1932). Q Anthony Lewis, "High Drama in the High Court," in Courts, Judges and Politics: An Introduction to the Judicial Process by Walter F. Murphy and C. Herman Pritchett (New York: Random House, Inc., 1961), pp. 480-481. 9July 20, 1965. 8 J. Lee Rankin, former Assistant Attorney General of the United States and who appeared for the United States government as amicus curiae said: I think there Is no question but what oral argument Is of prime Importance In all cases worthy of being brought before the Supreme Court of the United States, and I believe this Is a conclusion shared by the justices of that court as well as most members of the bar who have had any extended experience before It.10 The bulk of judicial literature reviewed for this study stressed the Importance of oral argument. A review of the pertinent literature In the ensuing chapters sus tained Its significance. The prevailing Impression In the literature was, that although Judges have different work habits, some Judges may be more receptive to the oral or spoken word than the written word. First impressions that a Judge gets of a case are very tentative and they are often founded on oral argument. In many appellate courts arguments are heard and decision rendered on the same day. In the Supreme Court, voting conferences are held by the Justices at the end of the week of argument. Oral argument is in substance a very important part of the persuasive process in our courts. The interchange of views between counsel and the Justices Is a method of arriving at the "truth" or a decision. 10Letter to the writer May 17, 1965. In addition to judicial literature, a review of previous research and popular writing in several disciplines was undertaken. Researched for related studies were such sources as: 1. Dissertation Abstracts, Annual Publication of abstracts of dissertations and monographs in microfilm (Ann Arbor, Michigan: University Microfilms, Inc.) 2. Clyde W. Dow, "Abstracts of Theses in the Field of Speech," Speech Monographs published by the Speech Association of America, Indiana University, Bloomington, Indiana. 3. Franklin H. Knower, "Graduate Theses: An Index of Graduate Work in Speech," Speech Monographs pub lished by The Speech Association of America, Indiana University, Bloomington, Indiana. 4. Bulletin of the Public Affairs Information Service published by Public Affairs Information, Inc., New York. 5. International Index published by H. W. Wilson Company, New York. 6. Index to Legal Theses and Research Projects pub lished by American Bar Research Center (American Bar Foundation), Chicago, Illlonls. 7. Index to Legal Periodicals edited by Mildred Russell published by H. W. Wilson Company, New York, in cooperation with the American Association of Law Libraries. 8. Index to Periodical Articles Related to Law edited and compiled by Roy M. Mersky (University of Colorado Law Library) and J. Myron Jacobstein (Stanford University Law Library) published by Fred B. Rothman & Company, South Hackensack, New Jersey. 9. Index to Foreign Legal Periodicals published by Institute of Advanced Legal Studies, University of London, London, England (in cooperation with the American Association of Law Libraries). Not one study was found which covered the broad spectrum proposed for this research. Only one work was located which dealt with a directly related aspect of this dissertation.11 In that research an attempt was made to discover the appeals Thurgood Marshall used on December 7 and 8, 1953, before the Supreme Court in Brown v. Board of Education. In view of the lack of material relating to oral argument in the School Segregation Cases, the significance of the problem in this study appeared self-evident. 11Jamye Coleman Williams, "A Rhetorical Analysis of Thurgood Marshall's Arguments before the Supreme Court in the Public School Segregation Controversy" (unpublished PH. D. dissertation, The Ohio State University. 1959); Disser tation Abstracts, Vol. 20, Part 2, pp. 2441-M2. University Microfilms, Inc., Ann Arbor, Michigan, 1959. 11 Preliminary research also revealed several unique features about oral advocacy In the School Segregation Cases— features which added to the significance of the problem. Litigation brought to court by organized interest groups is not necessarily a new concept in Judicial circles. The NAACP's defense of Negro rights did, however, present a successful and unique example of group strategy in American courts. The NAACP has even gone so far as to have its lawyers practice before a board of Howard Law School professors, each of whom plays the part of an individual Supreme Court Justice and questions and criticizes the argument Just as he envisions the particular Justice doing.12 The NAACP's Legal Defense and Educational Fund planned and principally financed the successful litigation in the United States Supreme Court in the School Segre gation Cases. The School Segregation Cases were unique in that counsel argued not only the facts of his case and precedent but in addition argued the psychological and sociological effects of segregation on Negro children in elementary and high schools. From its decision in Brown v. Board of Edu cation it is obvious that the Court utilized social science evidence and testimony as a basis for its ultimate ruling. The decision has been critically reviewed as a "socio logical" one. 12Murphy and Pritchett, op. cit. . p. 280. 12 Most cases which reach appellate courts, Including the United States Supreme Court, may Involve many counsel. But It was unique to hear fourteen counsel present oral argument In the Supreme Court on a Constitutional Issue. Research Design Methods The problem In this study was to describe and analyze the oral arguments of all counsel In the School Segregation Cases before the United States Supreme Court In 1952 and 1953. While endeavoring to find the appropriate research method or methods to best resolve the proposed problem,certain determinations and assumptions had to be made. Oral advocacy before an appellate tribunal is a persuasive process. Each advocate attempts to sway the Court to his point of view. To accomplish this end, counsel combines the facts of his particular case with existent law, and then, bounded by various technical rules and procedures, attempts to present his case to the court in a manner most conducive to obtaining a favorable decision. The method and substance of the presentation is complex, exacting,and replete vrith innumerable ramifications. A careful perusal of source materials indicated that the potential scope of the problem was so broad as to necessitate a defining and delimiting of the study. 13 It was Initially determined that the general problem Involved a study of oral advocacy before an appellate tri bunal, here the United States Supreme Court, at a specific time period, namely, 1952 and 1953, and with a particular factual and legal problem, the School Segregation Cases. The second major consideration to be resolved was how to best utilize the considerable basic data available. In this respect, several possible methods of dealing with the data were considered. These included the descriptive, analytical, historical, comparative, or evaluative methods, and alternatively, a combination of methods. Several factors militated against the use of the comparative and evaluative methods. A comparative study would involve a complete description and analysis of the chosen problem in addition to doing the same thing with the form or forms of persuasion chosen for comparison. In effect, it would involve two or more major studies. Simi larly, an evaluative analysis of the data would necessitate extending an already broad subject matter by requiring value judgments in addition to and extension of the descrip tive analysis. Regarding the use of the historical method, several questions arose. Vfhat was the role of legal precedent as applied to the problem? What was the nature and use of the social science testimony so frequently referred to in the arguments? The arguments were not made in vacuo. They m were made within the context of legal precedent and a back ground involving socio-psychological information. The description and analysis were of necessity made within that milieu. Some of the techniques of the historical method would seem to be appropriate but to term the research method "historical1 ' would not be technically accurate. A combination of the empirical (descriptive) and analytic methods appeared to provide the best approach to the research problem. Empirical research has been defined by Dickens as follows: Empirical method is a research plan to describe rela tionships existing at a given time among phenomena by means of controlled observation but without attempt ing to control or modify the phenomena themselves,!3 Description is a delineation or an account of a particular subject by a recital of its characteristics or qualities, or a written account of a process. It seemed appropriate that a second, implementing approach to the data be em ployed, namely, analysis. Analysis is variously defined. Perhaps the most common is: the resolution of a compound into its parts or elements. Analysis is a process for dis covering the various component parts of a matter. In this research it is a process for discovering the issues in the arguments and the essential elements of oral advocacy. As here defined, analysis is not concerned with evaluation in 13 JDr. Milton Dickens, unpublished lecture materials, 1965. sense of passing Judgment on the comparative effectiveness of the counsel in the school cases. For example, in describing the oral arguments of Thurgood Marshall, passages are quoted which are worded ungrammatically; analysis in this study is confined to pointing out these ungrammatical characteristics and pointing out the apparent reaction to them by members of the Court; but no value Judgment was made regarding whether Marshall’s grammatical mistakes reduced his speaking effectiveness. Such value Judgments would require further research with an orientation dif ferent from the present study. Subjects The principal people involved in this research were the fourteen counsel who presented oral argument in the School Segregation Cases in 1952 and 1953 and the eight Justices and two Chief Justices of the United States Supreme Court who heard the arguments. (See Appendix A for the names of counsel and members of the Court who participated in oral argument.) In addition to the counsel who argued orally, the names of many other lawyers and professional people are on the written briefs submitted to the Court prior to com mencement of argument. When oral argument in the school cases began on December 9, 1952, the Chief Justice of the United States Supreme Court was Fred M. Vinson. Chief 16 Justice Vinson died on September 8, 1953, and Earl Warren from California was named to fill the vacancy, assuming his position as Chief Justice at the October 1953 term. Materials The feasibility of this study depended upon securing a printed transcript of all oral arguments In the School Segregation Cases. Securing the transcript became an Involved procedure, requiring considerable "detective work." Personal contact with a former law clerk to United States Supreme Court Justice Douglas during the court's 195^ term failed to provide any specific direction in the search for the transcript of oral argument. Telephone calls were made to several major university law libraries, the Los Angeles County Law Library, the Chief Clerk of the United States Supreme Court in Washington, D.C., and several Judges, and other legal authorities in the California area. No one knew where a complete transcript could be found. Judge Loren Miller of Los Angeles, who was on the brief for appellants, suggested calling Jack Greenberg, Chief Counsel for the NAACP in New York. Mr. Greenberg said the NAACP had one complete transcript but could not release it. He suggested calling the public stenographic firm of Ward and Paul in Washington, D.C. The firm did have a copy of all the oral arguments in the School Segregation Cases and agreed to provide xerox copies of the entire transcript. 17 This writer’s transcript appeared to be one of four or five existing copies. A second source of primary material was provided by letters received from counsel who argued in 1952 and 1953. Letters were also received from counsel who appeared as amicus curiae in the 1955 implementation arguments. (See Appendix B for copies of the letters, questions and re sponses .) A third source of material made especially avail able to this writer was Chief Justice Warren's personal collection of the written briefs of all counsel and amici curiae. This collection is normally housed at Boalt Hall Library, University of California at Berkeley, but it was made available to this writer at the University of Calif ornia Law School Library at Los Angeles through the efforts of Mr. Louis Piacenza. A fourth source of material was the Judicial literature relating to oral advocacy and the subject matter of the oral arguments in the School Segregation Cases. The arguments and the decisions dealt with socio logical testimony and evidence and legal-historical prece dent. Materials were researched in periodicals such as the American Bar Association Journal. Harvard Law Review. Vital Speeches. various state law review publications and bul letins. Books written by judicial scholars, teachers, and critics were also reviewed, e.g., Wiener's Briefing and Arguing Federal Appeals (Frederick B. Wiener, Briefing and Arguing Federal Appeals (Washington. D.C.: BNA, Inc., 1961) Stern and Gres-*man, Supreme Court Practice (Robert L. Stern and Eugene Gressman, Supreme Court Practice (Washington, D.C.: BNA, Inc., 195*0; The Nature of the Judicial Process by Cardozo (Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Connecticut: Yale University Press, 1921); Courts. Judges and Politics by Murphy and Pritchett (Walter F. Murphy and C. Herman Pritchett, Courts. Judges and Politics (New York: Random House, Inc., 1961); Social science references were taken primarily from the footnote citations located in the 195** Brown v. Board of Education decision. Legal-historical background materials were derived from the cases in United States Reports, and from legal writings In various state bar journals and law reviews, as well as from books such as Desegregation and the Law by Blaustein and Ferguson (Albert P. Blaustein and Clarence C. Ferguson, Jr., Desegregation and the Law (New Brunswick, New Jersey: Rutgers University Press, 1957); Swisher's The Supreme Court In Modern Role (Carl B. Swisher The Supreme Court in Modern Role (Washington Square, New York: New York University Press, 1958) and Citizen's Guide to Desegregation by Hill and Greenberg (Herbert Hill and Jack Greenberg, Citizen's Guide to Desegregation (Boston: The Beacon Press, 1955). 19 Procedures Briefly, the procedures used In this study were as follows: 1. Read the oral arguments and decisions and become acquainted with the written briefs. 2. Gather and read appropriate sociological and legal- historical background materials relative to the subject matter of the oral arguments. 3. Collect materials necessary for establishing the characteristics and essentials of oral advocacy. 4. Synthesize the above materials into some organized pattern so that (a) the oral arguments could be clearly, and accurately described, and (b) the Individual oral arguments could be analyzed through the application of the essential ele ments mentioned In item three immediately above. Each of the above procedures is discussed in detail during the remainder of this section. The initial task in the procedure for this research was to read the oral arguments and the decisions and to become acquainted with the written briefs. This effort prompted the need for further research materials and indi cated various patterns or paths that this study had to take. Each counsel was involved in a process of attempting to persuade the Court to his point of view. To describe and 20 analyze this persuasive process led to the necessity of determining the essential elements of oral advocacy and collecting materials for that purpose. These materials were found In legal and nonlegal journals and books. The letters from counsel provided additional information. All counsel, whether for or against segregation in public schools, argued legal precedent. Each sought to retain and defend certain precedent, or to delimit, qualify, distinguish, or overturn it. It was necessary to set forth and delineate the above noted foundations for the oral arguments in order to better understand how and what counsel argued and the decisions themselves. Without this founda tion oral argument simply could not be understood. For ex ample, during oral argument cases were referred to simply by reference to first name of the case. It was assumed that the Court was as familiar as counsel with the cases cited. The lay reader might be confused if the study did not include a chapter on legal history. It was soon determined that it would be necessary to gather considerable background material, some of a technical nature. To insure accuracy, it was important to copy and have available for ready reference the entire content of most eases, and many articles. Therefore, much of the material from cases, books, and periodicals was xeroxed. As indicated, an examination of the materials demonstrated that there were four general areas of 21 Information aside from the oral arguments, decisions, and written briefs: (1) sources relating to the characteristics and elements of appellate advocacy, (2) social science background, (3) legal-historical background, (4) general critiques, analyses, and commentary about the School Segregation Cases, the role of the Supreme Court therein, and related miscellaneous information. Each group was put Into a separate looseleaf note book and materials were tabbed for easy reference. Following the analysis and classification of collected materials, it was then necessary to synthesize those materials into some organized pattern. It seemed justifiable to pattern the research around two fundamental questions: first, what was the method of presentation of oral arguments by counsel and second, what was the content of those arguments? The method of presentation required the establish ment of characteristics and essentials of oral advocacy. Forensic oratory or oral argument is traditional in function, that is, to make the argument clear and persuade the court— all circumscribed by legal method. Its method is marked by a certain rigidity in its procedure, its argumentative processes, and its captive audience. The characteristics and essentials of oral advocacy were derived from Judicial literature. They were found in the writings of advocates, judges, and critics. Further, the selection 22 of those characteristics and essentials was based upon the emphasis and consistency with which they were treated in that literature. Effective oral argument includes, but is not limited by such characteristics and essential elements as selectivity, simplicity, candor, resiliency, language choice, clarity of thought, and expression. For the second fundamental area to be examined— the contents of the oral arguments— it was vital to examine the bases for the arguments: first, the social science back ground and second, legal-historical precedent. The social science background involved socio logical and psychological issues upon which oral argument was made. In the May 17, 195^ decision Brown v. Board of Education the court asked: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.14 The Court mentioned a finding from Sweatt v. Painter, "that a segregated law school for Negroes could not provide them equal educational opportunities, ..." The Supreme Court was of the opinion that whatever may have been the extent of psychological knowledge at the time of Plessy v. ^ Brown v. Board of Education. 3^7 U.S. M83, ^93. Ferguson, there was ample modern authority to support a finding that the segregation of white and colored children In public schools has a detrimental effect upon the colored children. In the decision the Court referred to a now- famous footnote number 11, citing references to books and articles authored by sociologists and psychologists. These references were explored and utilized for the social science background. Briefs filed In the respective cases and legal writings constituted additional sources of material. For example, the National Association for the Advancement of Colored People filed and appended to one of its briefs a social science statement which was drafted and signed by thirty-two prominent sociologists, anthropologists, psychologists, and psychiatrists who had worked and written in the field of race relations. (Available in 37 Minnesota Law Review 427, 1953.) Materials for the legal-historical background were derived from a review of the cases used by counsel and Court, pertinent sections of the Constitution of the United States, Acts of Congress, and related literature. It seemed realistic to develop this background area— legal precedent— in three phases: (1) general, pertinent legal introduction and background, (2) applicable constitutional and statutory enactments, (3) applicable cases. After the development of characteristics and essentials of oral advocacy, and the sociological and legal 24 background the next procedure was the application of those concepts to the oral arguments. In order to clarify and justify that procedure, consideration was given to several facts about the oral arguments presented during the Court's 1952 and 1953 terms. They were lengthy, totaling 677 pages of printed transcript, consuming over 21 hours. The term "School Segregation Cases" referred to five cases based on different specific facts and local conditions, but consolidated for hearing and decision by the Court. The final decisions were entitled Brown v. Board of Education (The four states' cases) and Bolling v. Sharpe (the federal case). (Brown v. Board of Education (Kansas), Briggs v. Elliott (South Carolina), Davis v. County School Board of Prince Edward County. Virginia. Gebhart v. Belton (Delaware), Bolling v. Sharpe (District of Columbia). To describe and analyze the arguments in each case as presented, in chronological order, appeared the most reasonable and logical choice of procedure. In handling the description and analysis, the oral arguments were divided into two time periods: (1) December 9, 10, 11-1952; (2) December 7, 8, 9-1953. Definitions of Terms Some technical-legal terms will be used throughout this study. A glossary of legal terms appears in Appendix 25 C. The primary source for definition of those terms is, 15 Black's Law Dictionary by Henry Campbell Black. J Other nonlegal terms necessary to understand the procedures, arguments, or decisions will be explained when used. Preview of Remaining Chapters This chapter has presented the statement of the problem and the research design, defined methodology, and outlined the procedures. Chapter II will determine the function, characteristics and essentials of oral advocacy. Chapter III will provide the social science background necessary for the understanding, description, and analysis of the arguments in the school cases. Chapter IV presents the legal-historical background of the cases, including the applicable constitutional and statutory enactments. Chapters V and VI will describe and analyze the oral arguments presented in 1952 and 1953. Chapter VII will present findings and interpretations of the data. Chapter VIII summarizes the study and suggests further research. 15 ^Henry Campbell Black, Black's Law Dictionary (St. Paul, Minnesota: West Publishing Company, 1951)* CHAPTER II ORAL ADVOCACY: FUNCTION, CHARACTERISTICS AND ESSENTIAL ELEMENTS Function When an advocate stands before an appellate tri bunal, he seeks to convince the court that based on the facts of the case and the pertinent law his client or clients should prevail. The process is one of persuasion. The presentation of a case to an appellate court, like any other instance of advocacy, is an exercise in persuasion: You seek to make the judges decide in your favor. Everything must be bent to that end . . . every sentence in the oral argument; every mannerism, every gesture, even the advocate's attire. Every form of oral advocacy involves the impact of one person ality on others. . . . Though the number on the bench may vary, the advocate's aim remains the same: he must always, persistently, constantly, unflaggingly seek to persuade a majority of his listeners to agree with him.1 Robert H. Jackson, while associate Justice of the United States Supreme Court, said: I think the Justices would answer unanimously that — now, as traditionally, they rely heavily on oral pre sentations. Most of them form at least a tentative conclusion from it in a large percentage of the cases. . . . The Bar must make its preparations for oral arguments on the principle that it always is of the ■''Frederick B. Wiener Briefing and Arguing Federal Appeals (BNA, Inc.,: Washington, D.C., l96lT, p7 357. 26 27 highest, and often of controlling, importance.2 Justice Frankfurter characterized the United States Supreme Court as an "arguing" Court. Oral argument serves as a significant instrument for adjudication.3 While considering the relative value of oral argu ment and the written brief, Judge Longhran felt the printed word of the ablest advocate fell short of the same arguments when heard face to face through his living voice. "You may take my word for it, oral address may breed an intimacy between advocate and Judge that can never come out of a printed page."1 * Wiley Rutledge, formerly Associate Justice of the United States Court of Appeals for the District of Columbia, said that oral argument generally can perform two functions: "One is to give the judge a bird's-eye view of the important facts . . . the other function, closely related to the first, is to bring out clearly the control ling issues in the case."5 a similar statement of purpose 2Robert H. Jackson, "Advocacy Before the Court: Suggestions for Effective Case Presentation," 37 American Bar Association Journal. 801, 1951. o Felix Frankfurter and James Landis, "The Business of the Supreme Court at October Term, 1931" **6 Harvard Law Review 226, 236-237, (1932). Judge John T. Longhran, "The Argument of an Appeal in the Court of Appeals," 12 Fordham Law Review. 1, 6, 19^3. ^Justice Wiley Rutledge, "The Appellate Brief," 2 8 American Bar Association Journal 251, (19*12). 28 was made by Chief Justice William Maltbie of the Connecticut Supreme Court: The purpose of the oral argument is largely to bring into the foreground, in bold relief, the essential issue or issues, with a brief and forceful presentation of the reasons which sup port the contentions of a party with reference to them. Questions by the court are designed to aid in bringing out those issues and to put be fore counsel suggestions which offhand occur to the judges as material in testing the position taken by counsel.® Though the increase of judicial business has played a part in limiting the amount of time for oral argument in the appellate process, the importance of its role is attested to repeatedly in Judicial literature. Regarding the role of oral argument in the School Segregation Cases, former United States Assistant Attorney General, J. Lee Rankin, who argued the cause for the United States as amicus curiae, said: In answer to your questions about the oral argu ment before the Supreme Court of the United States in the school desegregation cases, 1952-55, I wish to say that I am fully satisfied that the oral argument could sway the Court either for or against the plaintiffs. I do not think that the Court had made up its collective mind, although I thought at the time that it had a disposition towards acting to strike down segregation. I believed then, how ever, and I am satisfied today that my opinion was correct that the Court had some problems about whether it had a duty to act or whether possibly the obligation was on the Congress and should be left there. ^William M. Maltbie, "The Oral Argument on Appeal," 11 Connecticut Bar Journal. 163, 164-165, (1937). 29 I am also satisfied from my personal experience In the argument that the argument was of prime Importance as I watched each of the Justices asking the questions during my argument and It was apparent that after each had addressed his series of questions and largely exhausted those that had been In his mind, he seemed to lean back In his chair, back of the bench and appeared satisfied regarding the entire matter. This Is the kind of Impression that counsel who have argued many cases obtain and their experience causes them to place reliance upon It.7 Many of the counsel In the school cases who re sponded to a series of questions from this writer attached Importance to the function of oral argument In those cases and in appellate advocacy generally. Comparing the responses of the appellant and appellee advocates in eval uating the role of oral argument In the school cases revealed sharp cleavage in view point. I. Beverly Lake, counsel for appellees:responded: A lapse of ten years makes It somewhat difficult to be specific, but the developments throughout our country during this period re-emphasize the enormity of the Supreme Court's error in usurping the power to rewrite the Constitution under guise of interpretation.° Continuing, he said: The argument, as such, did not give me great trouble. The disaster which the Court had brought upon our country and my inadequacy to portray it gave me much concern. While the members of the Court were, of course, courteous, I realized that anyone who spoke in opposition to its 'Great Crusade' to remake America in the image preferred by the Court, was unwelcome 7 Letter to the writer, May 17, 1965. g Letter to the writer, May 11, 1965. 30 and would be disregarded except Insofar as his arguments dealt with questions of expediency and timing problems.9 "In my opinion," wrote Robert Carter, General Counsel for the National Association for the Advancement of Colored People, the oral argument In this case was of critical Importance In that It helped the Court test the validity of the legal arguments presented and — • also to determine how to deal with the Issue. I do not have the feeling that the oral argument necessarily swayed the Court for or against the plaintiffs. I doubt that there was a possibility at,that time for the court to hold that separate but equal should prevail. Oral argument helped clarify the court's thinking and helped to decide how to solve the issue. I think that the court looks upon oral argument to assist it in clarifying the issues the case pre sents. Often a Justice will press a particular issue through counsel in order that the import of the issue and its dimensions will be clear to other members of the Court. This was the technique that Mr. Justice Frankfurter used. Very often you do not know the full implications and dimensions of your written rationale— its meaning and impact on other areas of the law— but in the interchange between judge and counsel on oral argument, you and the court obtain a better grasp of what is at stake.10 Characteristics and Essential Elements of Oral Advocacy In Chapter I it was stated that the selection of characteristics and essential elements of oral advocacy was ^Letter to the writer, May 11, 1965. ■^Letter to the writer, July 20, 1965. 31 based upon the emphasis and consistency with which they were treated In Judicial literature. Prom an analysis of that literature It was observed that oral advocacy in appellate courts ordinarily followed an organizational pattern Involving seven general steps: 1. Preparation 2. Opening statement of the case 3. Statement of the facts 4. Argument on the law 5. Rebuttal 6. Answering questions from the Court 7. Delivery. The advocate was admonished by those who have written on the subject to follow the first five steps In the order Indicated here. Steps six and seven were, by their nature, inherently related to the first five and could be considered by the advocate as superimposed upon the total persuasive process. Some of the literature for this chapter treated the seven steps in the order presented above. Regardless of the order in which they were treated, these seven steps were the ones most frequently considered in the literature. The order and progression of an argument are impor tant to its ready comprehension, but in the Supreme Court these are not wholly within the lawyer's control. . . . I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned— as I thought, logical, coherent, complete. Second was the one actually presented— interrupted, incoherent, 32 disjointed, disappointing. The third was the utterly devastating argument that I had thought of after going to bed that night.11 Preparation There are specific rules with which counsel should be familiar and which he should consider In his preparation. United States Supreme Court Rule 44 (1) states: "Oral argu ments should undertake to emphasize and clarify the written argument appearing in the briefs theretofore filed. The Court looks with disfavor on any oral argument that is read 12 from a prepared text." Other rules which influence the early stages of-preparation are: Those referring to amount of time allocated to oral argument, the order of argument, the number of counsel permitted, and the argument by amicus curiae. Some factors of the argument— the facts and evidence, the legal questions Involved and the time allowed — vary from case to case. The least variable, of course, Is the time factor. In Supreme Court cases on the summary calender counsel are allowed "half an hour, and no more," and all other cases, "one hour on each side, and no more, will be allowed for the argument, unless more time be TO granted before the argument begins." ^Jackson, op. Cit.. p. 803. 12 Stern and Qressman, Supreme Court Practice p. 481. 13Ibid., p. 482. 33 Counsel Is faced with the question of whether or not the court has read the brief or any part of the record In advance of the argument. In the Supreme Court the justices apparently have different methods of handling their own preparation for oral argument. Before the date set for argument the record of the case Is printed and each side submits written briefs explaining its contentions in some detail. . . . It is impossible for the justices to read all the material. The briefs are examined with great care; but since it is not unusual for a trial record in a complicated case to run to several thousand pages, the justices have to learn what parts can be skipped or perused and what parts closely studied. The Supreme Court Rules require that the briefs contain specific page citations to those parts of the record being discussed, but there are limits to specificity. In his lecture delivered at the Cornell Law School in 1947, Justice Raymond Wilkins (of the Supreme Judicial Court of Massachusetts) said: To the Court every new record is a mystery. Sometimes it is also a labyrinth. Whatever their legal quali fications judges usually are neophytes as to the facts of a particular case. In my experience it is seldom that there has been an opportunity before the arguments to study the records or the briefs. Even on rare occasion when a judge is able to do this, he does not acquire from the cold record the grasp of detail and the perspective of the facts which counsel always should, and usually do, possess. ^ Murphy and Pritchett, Courts, Judges and Politics: . . . , p. 476. ^Raymond S. Wilkins. "The Argument of an Appeal," 33 Cornel Law Quarterly 40, 45, (1947). 34 During preparation the advocate must not make assumptions about the Court's familiarity with the record and brief of the case. Speaking specifically about United State Supreme Court practice, Stern and Gressman indicated: Counsel should . . . prepare his argument for persons who, it should be assumed, know very _ little about the particular case and perhaps about legal authorities peculiar to the case, but who know a great deal about general principles of law with which they are frequently called on to deal.16 Frederick Wiener analyzed the problem of preparation for oral argument. He said the task involved three phases: The first is attaining mastery of the case, becoming throughly familiar with the facts, the applicable law, and the implications of both. Next is the process of compressing that mastery within the confines of the medium, i.e., within the allotted time, so that the essentials can be orally conveyed to the Court. Finally, there is the matter of preparing the necessary notes, as an aid to memory while actually up on one's feet.17 With regard to specific problems arising in preparation, Wiener suggested: In general, it is well to rely exclusively on the brief for anything that is so detailed that it sounds fuzzy when you attempt to present it orally. The only test is to try it, i.e., to rehearse it, orally. Regardless of what it is, whether law, or facts, or what not, if it doesn't leave a distinct impression by ear, relegate it to the brief where it can be more leisurely— and more effectively— absorbed by the eye.1° l8Stern and Gressman, op. clt.. p. 331. 17 Wiener, op. clt., p. 303. l8Ibid. p. 324. 35 Preparation Is applicable and Important to all of the steps Involved In oral argument. Counsel must of necessity bear In mind those principles of argument as above outlined during his entire preparatory period. Opening statement of the case Supreme Court Rule 44 (5) states that regardless of the number of counsel participating, "a fair opening of the case should be made by the party having the opening and closing."1^ The opening statement should describe the nature of the case, present a concise history, note the holdings of the court below, and briefly summarize the points to be argued. Supreme Court Justice Robert Jackson warned the young advocate not to waste time in the intro duction to his argument complimenting the Court. He added: "It Is not ingratiating to tell us you think it is an over whelming honor to appear, for we think of the case as the 20 important thing before us, not the counsel." An effective opening statement ranks high on Wiener's list of essentials in oral argument. The important point to remember is that the first few minutes are critical, that counsel must catch and hold the court's interest and attention in that time. If he is for the appellant, he must give a thumbnail epitome of "what this case is all about." If he is for the appellee, he must ^Stern and Gressman, op. clt.. p. 482. 20 Jackson, op. cit.. p. 802. 36 In his opening sentence seize upon the central feature of the case, and, by driving it home, dispel the impression left by his adversary. The opening should, after the technique of the well-written newspaper account, tell the whole story in the first paragraph, after which it is time to go back and fill in the details. And, like the competent newspaper reporter, the advocate must never keep his audience in suspense; on the contrary, he must give his secret com pletely away right at the outset.21 ’ ’Too many oral arguments are badly opened,” observed George Haight, a practicing attorney. "Opening counsel should at once make clear who his client is; where he came from; how he arrived; what he has brought; what he wants; and, in a 22 sentence, why.” Speaking to the Judicial Conference held in Washington, D.C., in 19^2, Justice Justin Miller agreed with Wiener’s suggestion that oral argument should resemble the newspaper story. Accordingly, "the introduction should 23 get over to the court the heart of the case." Justice Miller stated there were two things which should be done as quickly as possible:"(1) give a simple impressionistic sketch of the case; and (2) state clearly the conflicting contentions of the parties and define sharly the issues 2i| which result from those contentions." 21 Wiener, op. clt. . p. 286. 22 George I. Haight, "The Advocate in Courts of Review," 19^0 Wisconsin Law Review 327, 332. 2^Justin Miller, "Oral Argument," 9 D.C. Bar Association Journal 196, 197, (1942). 221 Ibid.. p. 197 37 Statement of the Pacts Some authorities believe a clear and simple state ment of the facts Is the most important part of the argu ment. Justice Robert Jackson said In 1951: The purpose of a hearing is that the Court may learn what It does not know, and it knows least about the facts. It may seem paradoxical, but most contentions of law are won or lost on the facts. The facts often incline a Judge to one side or the other. A large part of the time of conference is given to discussion of facts, to determine under what rule of law they fall. Dissents are not usually rooted in disagreement as to a rule of law but as to whether the facts warrant its application.25 In an address before the District of Columbia Bar Associa tion, Mr. Justice Rutledge (then a member of the Court of Appeals of the District of Columbia) said: Be candid. That applies to both fact and law. Nothing, perhaps, so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he is reasonably entitled to claim. . . . Do not try to dodge or minimize unduly the facts which are against you. If you can’t win without doing this— and it is seldom that you can by doing it— your case should not be appealed.26 Many years before he appeared as counsel in the School Segregation Cases, John W. Davis said, "it cannot be too often emphasized that in an appellate court the statement 2*5 ‘ 'Jackson, op. clt. . p. 803* 26 Rutledge, op. clt. . pp. 251, 25**. 38 of the facts is not merely a part of the argument, it is 27 more often than not the argument itself." Several methods for presenting the facts have been suggested. "The facts should be organized chronologically or topically— whichever is the easier to follow when stated 2 8 orally." John W. Davis urged the following: . . . chronology, candor and clarity: Chronology, because that is the natural way of telling any story . . . candor, the telling of the worst as well as the best . . . and clarity, because that is the supreme virtue in any effort to communicate thought from man to man.29 Judge Medina warned the advocate that nothing can ruin an oral argument so completely as the slightest tendency toward evasion, concealment, straddling or running away from the facts. When the facts are in dispute, he suggested that one should explain to the court in some way what facts are conceded or undisputed and what facts are in dispute either by direct contradiction in the evidence or by conflicting inferences to be drawn from the evidence; and that this should be done in a way which will not so confuse or interrupt the general, trend of the statement of facts as to make it unintelligible.30 27 'John W. Davis, "The Argument of an Appeal," 26 American Bar Association Journal 895, 896 (19*10). 2 8 Stern and Gressman, op. clt.. p. 332. 29 ^Davis, op. cit. . p. 897. 30 Harold R. Medina, "The Oral Argument on Appeal," 20 American Bar Association Journal 139, 1**1 (193**). 39 Reporter-author Anthony Lewis observed that the Justices of the Supreme Court, who are "so remote from trials, seem 31 lonesome for concrete details." In his story of Clarence E. Gideon’s case before the United States Supreme Court, Lewis again reflected on the role of argument. "The exhaustive probing of a single set of facts shows, if it is done well, how our adversarysystem of Justice can make 32 truth emerge from conflict. In 1931> prior to his appointment to the Supreme Court, Justice Cardozo, one of the truly great writers in the field of American Jurisprudence, viewed the presenta tion of the facts in oral argument this way: More and more we lawyers are awakening to a perception of the truth that what divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as uncertainty about the facts which generate the law. Let the facts be known as they are, and the law will sprout from the seed and turn its branches toward the light.33 Argument on the Law Assuming the advocate has made an opening statement effectively presenting the nature of the case and the issues, and further, that he has made a clear and concise 31 Murphy and Pritchett, citing Lewis: o d . cit.. p. 482. 32 J Anthony Lewis, Gideon’s Trumpet (New York: Random House, 1964), p. l6l. ^Benjamin N. Cardozo, Law and Literature (New York: Harcourt, Brace and Co., 1931). 40 statement of the facts, he will next present his argument on the law. He should attempt to convince the court that logic, reason, and principle support his contention that the facts as presented justify a legal conclusion in his favor. Supreme Court Justices cast a skeptical eye on contentions that they are bound to reach a certain result because of prior decisions of other courts, or even of the Supreme Court itself, and for no other reason. They may ultimately base their decision on the prior authorities, but they are more likely to do so if they are persuaded that the decision is right as a matter of principle. If it is not so persuaded, the Court will generally find little difficulty in distinguishing— or even ignoring— the earlier authorities. In only a small proportion of cases is a prior decision of the Supreme Court so closely in point, and so impossible to distinguish, that the Court has to consider whether or not to follow the principle of stare decisis.34 Stern and Gressman do not suggest that authorities not be brought to the court's attention during oral argument. They do suggest, however, that "except when there is a recent Supreme Court case directly in point, counsel should emphasize the appeal to reason . . . "3‘ * By reason and principle, they mean the inclusion of every factor "apart from mere legal precedent— which will demonstrate that a decision in your favor will be reasonable, fair and correct. "3^ ■34 J Stern and Gressman, op. cit. . pp. 334-335. 35Ibid., p. 335. 36Ibid. 41 The advocate must include in his argument those factors to which the issues relate. The issues may relate to the facts, the public interest, a particular statute or constitutional provision, and similar matters. Justice Jackson said that the selection of issues or questions for the oral argument is one of the first tests of a discrimi nating advocate. "Legal contentions, like currency, 37 depreciate through over-issue.11J . . . in general the most strategic procedure for counsel to follow is to select the one big central point of law on which he hopes to obtain a rever sal . . . Some cases are of such character as to make it possible and advisable to argue two or more points with almost equal force.3° If the statement of the facts has been properly made, the court will probably have sensed the legal ques tions at issue in the case. It is of paramount importance that the questions be stated clearly and succinctly and not be shrouded in the mists of confusion. "More often than not there is in every case a cardinal point around which lesser 39 points revolve like planets around the sun. . . Wiener agreed with the necessity of selecting only major issues. . . Argue principles, and argue them broadly. Leave the details of the .decisions to your brief where they ^Jackson, op. cit.. p. 803. ^Medina, op. cit. . p. 142. ^Davis, op. clt.. p. 897. 42 40 can be more helpfully discussed." There is, of course, no formula that will fit all situations in appellate courts or elsewhere. If, how ever, I had to prepare a list of "don'ts" for the guidance of the novice, I think I would say that only in the rarest instances is it wise to take up one decision after another for the purpose of dissection. Such autopsies have their value at times, but they are wearisome and gruesome scenes. . . . Don't state the minutiae of the evidence. The judges won't follow you, and if they followed, would forget.41 Regarding argument on precedent law, Stern and Gressman suggest: The general reasoning of the decisions, if closely in point, should be summarized, and a short quota tion which gives reasons supporting your argument as well as, or better or more impressively than, your own statement, may appropriately be used.4^ Reading quotations are the exception rather than the rule. In dealing with well known legal principles, such as established doctrines of constitutional or administrative law, or rules of statutory construc tion, for which a wealth of authority could be cited, no specific citation is needed, for the Court knows the case better than counsel does. . . . Just refer to the principle, and expand, if/.o necessary, on its application to your case. 5 The justices and Judges who have written in the field have made it clear that a careful statement of the essential issues and a forceful presentation of the advocate's reasons which support the contentions are 40 Wiener, op. cit.« p. 298. 41 Cardozo, op. cit. . p. 37. 42 Stern and Gressman, op. cit. , p. 337. 43Ibld., p. 338. 43 fundamental elements of effective oral advocacy. Rebuttal United States Supreme Court rules permit counsel who makes the opening statement to reserve time for rebut tal. The desirability of rebuttal is dependent upon several factors: the experience and skill of counsel, the need to "correct" the opponent's argument, and counsel's evaluation of the court's attitude toward his opening statement. Justice Jackson said In this regard: I would not say that rebuttal is never to be Indulged.........The most experienced advo cates make least use of the privilege. Many inexperienced ones get into trouble by attempt ing to renew the principal argument. One who returns to his feet exposes himself to an accumulation of questions. Cases have been lost that, before counsel undertook a long rebuttal, appeared to be w o n .44 Many authorities advise counsel to anticipate the opponent's argument. Stern and Qressman point out: The reply should be reserved for new matters raised by the opponent during the argument, and to permit the expression of the petitioner's position with respect to questions from the bench during respondent * s argument.45 The authors express the same thoughts as Justice Jackson in respect to rebuttal. They feel that often a reply is unnecessary. "If you have covered the critical points ^Jackson, op. clt. , p. 804. ^Stern and Gressman, op. clt. . pp. 343-344. 44 adequately, and It appears that the Court fully understands the case, don't get up and reply merely because your time iig has not expired." Justice Jackson's astringent advice to the advocate was: "Time has been bestowed upon you, 47 not Imposed upon you." When discussing whether a rebuttal Is desirable, Wiener said: If your opponent has been obviously demolished by the court, It Is well not to trample on him further. Rebuttal Is, however, essential, whenever there Is a real argument to answer, or whenever the court Is obviously In doubt, or whenever there Is a palpable misstatement to be corrected or even a residuum of honest confusion to be cleared up. Don't get up a second time simply to rehash what has already been fully covered. When you do get up for purposes of contradiction, be sure to go for the essentials.^® Whether counsel uses rebuttal or not, he is gener ally advised to "put a finish" to his argument. The per oration should leave an Impression of strength and dignity. "The mere fact that you have an allotted time of one hour more or less does not constitute a contract with the Court to listen for that length of time." ^ Since counsel cannot 46Ibld., p. 344. 47 'Jackson, op. clt.. p. 86l. ** 8Ibld., pp. 347-348. ^Davis, op. clt. . p. 898. 45 know exactly how much time may be consumed by the court In questioning, counsel must be prepared to close his argument quickly and succinctly. In the United States Supreme Court a small white light on the lectern used by counsel goes on at five minutes before counsel is due to complete argument. When a red light goes on, time is up and argument ceases. Counsel is advised to have a short, prepared summary so that he may end conclusively. Answering Questions from the Court Answering the court’s questions presents one of the most difficult responsibilities of the advocate and requires resiliency, deftness, courtesy, candor, and intelligent answers. Unites States Supreme Court Justice John Harlan listed "resiliency1 1 as a prime requisite for counsel. Said Harlan: . . . many lawyers regard questioning by the Court as a kind of subversive intrusion. And yet, when one comes to sit on the other side of the bar, he finds very quickly that the answer made to a vital question may be more persuasive in leading the Court to the right result than the most eloquent of oral arguments. . . . If a Court sits through an oral argument without asking any questions it is often a pretty fair indication that the argument has been either dull or unconvincing.50 The advocate should not be vague. John W. Davis pointed out that no matter how embarrassing the question CQ J John M. Harlan, "The Role of Oral Argument," Alan P. Westin, ed., The Supreme Court: Views from Inside (New York: W. W. Norton, Inc., 19bl), p. b0. kS may be or how much it interrupts the flow of argument, counsel must not evade, shuffle, or postpone the answer. Rejoice when the Court asks questions. . . . If the question does nothing more it gives you assurance that the Court is not comatose and that you have awakened at least a vestigial interest.51 In the Supreme Court the Justices ask many ques tions. One reason for this, observed Justice Jackson, is that all the Justices have given the case some prelimi nary consideration. Tentative opinions or inquiries are apt to linger in their minds. "Questions usually seek to elicit information or to aid in advancing or clarifying the argument."'*2 The agility and diplomacy of counsel are tested by questions from the bench. Particularly difficult moments are encountered by counsel when he is caught in a crossfire of questions between differing justices. Justice Jackson observed, "I always feel that there should be some comfort derived from any question from the bench. It is CO clear proof that the inquiring Justice is not asleep." Never postpone an answer for that always leaves an impres sion of evasion. An immediate "short form" answer is better than no answer. ^1Davis, op. clt., p. 897. **2Jackson, op. clt. , p. 862. 53Ibid., p. 862. 47 Questions from the bench should be considered of value to counsel. These questions enable counsel to know the precise point upon which a Justice wishes further informa tion, or the issue of law upon which a justice must be satisfied. The questioning alone gives counsel a clue as to which aspects of his argument need further elaboration, and which can be bypassed or cut down. Since the task of counsel is to persuade the Justices rather than to make a speech, the questions are to be welcomed, and not regarded merely as interruptions to the argument.54 Further, it is more important to answer the court*s ques tions fully and accurately than to complete a prepared argument on points which may not bother the justices. Counsel should not be evasive "for that will merely turn what may have been started as a simple question into a cc cross-examination."^ Judge Medina suggested that counsel never show impertinence or disrespect during questioning by the justices. When interruptions are made in his argument, counsel should always try to go back to relevant facts and points he has to make. Medina noted that it was Important for counsel to answer questions put to him or frankly admit he has no information of value. During questioning counsel may feel provoked, but disrespect and impatience with the court is inexcusable. Having observed the United States Supreme Court in session many times over a period •^Stern and Qressman, op. cit. . p. 340. 55Ibid., p. 341. 48 of years, Anthony Lewis said that one of the worst sins is to brush off questions or answer them less than can didly. . . . Often in their questions the members of the Court try to find out what the case means in human terms, as if in their ivory tower they were lonesome for the real world.5° Chief Justice Charles Evans Hughes expressed his view about the Court's practice of questioning: Well prepared and experienced counsel . . . do not ob ject to inquiries from the bench, if the time allowed for argument is not unduly curtailed, as they would much prefer to have the opportunity of knowing the difficulties in the minds of the court and of attempt ing to meet them rather than to have them concealed and presented in conference when counsel are not present. They prefer an open attack to masked battery.57 "Basically the question and answer system is excellent," said John P. Prank. When the questions become so numerous as to make argu ment Impossible, then a system intended to shed light may well succeed in blocking it out altogether. A sometimes amusing operation of the system occurs when counsel is whipsawed between Justices. In this situation Justice A asks counsel a question that counsel is either unable to answer or handles poorly. Justice B, who is sympathetic to counsel’s position, then asks a question that implies an answer to the question asked by Justice A. Thus, Justice B's ques tion may begin: "Isn't it true that . . . "and then proceed to state the correct answer. Justice A then asks another question aimed at the answer just supplied Justice B, and so on.58 ^Lewis, Gideon♦ s Trumpet. p. 163. •^Charles Evans Hughes, The Supreme Court of the United States (New York: Columbia University tress, 19281, p. 52. John P. Prank Marble Palace, The Supreme Court in American Life (.New York: Alfred A. Knopf; 1958), PP. 103- T5T. 49 Frank felt that the greatest abuse of the questlon-and- answer system occurs when a judge goes Into some point which seems crucial to him, but which does not seem of much Importance either to counsel or any other members of the bench. Exemplifying this "abuse" Frank said: Any candid discussion of this problem requires mention of that Justice, whose professional back ground and whose Inclination to see angles In a case of more Interest to him than to many of his brothers (as demonstrated by his numerous separate concurring opinions) make for some real difficulty. On occasion Justice Frankfurter appears to forget that the attorney before him Is not a student In a seminar who Is privileged simply to abandon a position under force of questioning. The attorney Is hired to represent a point of view, and he cannot throw it away. I once observed a friend of the Justice, personally devoted to him, sit in the courtroom, his face in his hands and tears in his eyes, and heard him mutter: "Why does he have to behave like that?" When these excursions occur, counsel is almost hopelessly caught, because a proper respect for the bench requires him to stick with the questioner and yet he wishes to get on with the case. The result Is a series of devices for changing the subject in the hope of getting back to the main line of argument. Renowned for his dexterity in dealing ruthlessly with what is sometimes impiously called "the Felix problem" was the late Chief Justice Vanderbilt of New Jersey during his practicing days. Vanderbilt made cursory answers, brushed the questions aside, and by force of his powerful personality thrust on to other things.59 Two counsel in the school cases described the questioning from the court as follows: 59Ibld. pp. 105-106. 50 [Ralph E. Odum (Florida)]: The most difficult part of the argument was to answer questions of the Court and still try to stay on the track of the argument I had prepared.60 [J. Lee Rankin (Assistant Attorney General of the United States)]: The most trying or difficult part of my oral argument was, as usual, the answering of questions by each of the Justices although it seemed at the time that I was able to answer their several inquiries soundly, and that was a satisfying experience.61 It appeared throughout the literature that this aspect of oral argument is one of the most nerve-shattering experiences advocates encounter in appellate argument. When United States Solicitor General Archibald Cox left his post in 1965, he recalled that he "never once faced the Justices' probing questions without having lain awake the whole night before, feeling sick to my stomach and wondering 6 2 if I were going to die." Delivery There is a Supreme Court rule which expressly states that oral argument should not be read. Justice Jackson told members of the State Bar of California: Few lawyers are gifted with memory and composure to argue a case without papers of any kind before them. It is not necessary to try. The memorized oration, or anything stilted and inflexible, is not appropriate. Equally objectionable is the opposite extreme— an unorganized, rambling discourse, ^°Letter to writer, May 5, 1965. ^Letter to writer, May 17, 1965. 62Tlme. Vol. 86, No. 17, October 22, 1965, p. 94. 51 relying on the Inspiration of the moment . . . If you have confidence to address the Court only by,_ reading to It, you really should not argue there. Owen Rail, speaking before the Illinois Bar Association, approached this point as follows: If there were more ways of saying that an oral argument should be oral and that an oral argument should not be read from a text and that an oral argument should not be memorized, I would put that proposition to you in every conceivable form because some lawyers still, either through lack of confidence in their own speaking ability or in an illusory search for perfection, try to read an oral argument.°4 than knowledge of the case. The personal qualities of counsel and the physical properties of the courtroom must be considered. The voice, place, acoustics, and other facts and conditions have bearing upon the effectiveness of the presentation. The so-called grand eloquence heard in the Supreme Court in the days of Webster and Choate is rarely heard today. It is often said that the art of oratory is dead and that all a man has to do now is to get on his feet and say what is on his mind. It is true that formal oratory, following a set plan such as described by Cicero, and the rhetorical, emotional and highly colored efforts which one reads about in connection with the arguments before the Supreme Court of the United States in the first thirty or forty years of its existence, are gone. It would Good technique in appellate advocacy embraces more ^Jackson, pp. cit.. p. 86l. ^Owen Rail, Effective Oral Arent on Appeal 48 (Illinois Bar Journal l$bO), p. 52 be absurd for anyone to attempt such flights of eloquence today, whether in or out of a courtroom. With rare exceptions the arguments and even the trials of important cases today lack the element of the public spectacle which was formerly common place. In almost every instance the argument pro ceeds under conditions of repose and calm. Appellate calendars are now so crowded as to make the element of time a matter of pressing significance. One must be brief and to the point; there is little or no opportunity for embellishment or emotionalism. It does not follow, however, that the function of the advocate is any easier under these conditions. On the contrary his task becomes all the more difficult. Pressed for time and with Judges whose minds are occupied in the consideration of hundreds of cases, it is more necessary than it ever was to spend years of arduous toil and the most constant application to develop what may be truly called the art of persuasion or advocacy. Many writers have made suggestions as to delivery. Wiener tells counsel to apply the fundamentals of good public speaking, i.e., the advocate must be heard, and he must use proper emphasis (e.g., avoid monotone, avoid the ministerial cadence, avoid mumbling, use the pause). Suggestions from other writers are in essence, similar: "Don’t yell or shout," "speak distinctly, clearly and not too fast" (Justice Peters); "use a conversational mode" (Justice Jennings); "speak in a clear and distinct voice with as little harshness or discordency as possible" (Judge Medina). Counsel have been advised repeatedly by authorities writing on the subject to rehearse orally. "Do not think it is beneath you to rehearse for an argument," said Justice Jackson. 6*5 •'Medina, op. cit. » p. 139. 53 . . . I do not suggest that you should declaim and gesture before a mirror. But, If you have an associate, try out different approaches and thrash out every point with him. Answer the questions that occur to another mind. See what sequence of facts Is most effective. Accustom yourself to your materials In different arrangements. Argue the case to yourself, your client, your secretary, your friend, and your wife If she Is patient. Use every avails able anvil on which to hammer out your argument.®6 Speaking In America in 19^8, Sir Norman Birkett (former advocate and member of the British Privy Council) expressed his view that: . . . while there are no fixed standards for forensic oratory, and there are no patterns and no types to which the advocate must conform, yet I have found that it is simple speech that makes the most powerful appeal . . . it is the simple, direct, Incisive speech that wins the great victories. And so it is in the Court. My experience has always been with regard to the great advocates that I have known that it was the element of direct, forceful, lucid, vivid speech, in all its simplicity that gave them their strength.®' The literary concept of "style reflecting the man" can be detected in Justice Jackson's comments about the art of advocacy: When he rises to speak at the bar, the advocate stands intellectually naked and alone. Habits of thought and speech cannot be borrowed like garments for the event. What an advocate gives to a case is himself; he can bring to the bar only what is within go him. A part written for him will never be convincing. ^Jackson, op. clt., p. 86l. ^Sir Norman Birkett, "The Art of Advocacy," 3^ American Bar Association Journal. M, 7, 19^8. 68 Jackson, op. cit., p. 963. 54 Jackson viewed "professional sincerity" as the most persuasive quality in the advocate. Among many admonitions to the aspiring lawyer, Jackson asserts: "He will stock the arsenal of his mind with tested dialectical weapons. He will master the short Saxon word that pierces the mind like 69 a spear and a simple figure that lights the understanding." Wiener prepared a list of what he considered the really essential features of effective oral argument. They are: (1) Appreciation of the purpose of advocacy. (2) Not reading the argument. (3) Application of the fundamentals of good public speaking. (4) An effective opening. (5) Clear statement of facts. (6) Complete knowledge of the record. (7) Thorough preparation. (8) Attitude of respect for intel lectual equality. (9) Flexibility.7° Justice Harlan summarized those characteristics which he found in every effective oral argument: "selec tivity" or the lawyers careful selection of issues to be argued; "simplicity" of presentation and expression; "candor" or facing up to weak points in a case; and "re siliency" or counsel's ability to handle the questioning 71 of the Court.' In summary, the procedural steps governing effec tive oral advocacy include preparation, opening statement of the case, the statement of facts, argument on the law, 69Ibid., pp. 863-864. 70 Wiener, on. cit., p. 280. 71 Harlan, op. clt.. pp. 59-60. 55 rebuttal, answering questions from the court, and delivery. However, the above steps cannot always be considered as neat, Inseparable, always chronological categories which differentiate effective from ineffective oral argu ment. Rather, advocacy Impressive to the appellate court is an amalgam of all of the elements described in this chapter, and should be considered as a whole. No attempt was made In this critique to analyze the arguments by setting up neat categories and subheadings. Such procedure would have necessarily created a disjoined account and destroyed the continuity and meaning of counsels' argu ment s. An advocate arguing before an appellate court seeks by a clear, coherent, well-organized statement of the facts and law to convince the court that a decision by that court in favor of his clients would be a reasonable, fair, Just, and equitable disposition of the dispute. Such argument is in essence an exercise in persuasion using those tools and techniques familiar in any area wherein persuasion of others is the object of oral communication. The process is exacting and exciting in the Supreme Court of the United States where the advocate makes his argument before what are considered some of the finest legal minds of the country. The Justices abruptly and sometimes curtly dissect counsel's arguments where there is confusion or lack of logic in fact or law; they force counsel to analyze and then to analyze 56 some more; they "try1 1 him on the law, on the facts and the applicability of his facts to the past, present, and future state of the law. Within the limited time allotted, counsel must be able to 1 1 communicate" with the court. He must deliver his thoughts cogently and with almost surgical conciseness; he must be thoroughly prepared; and, lastly, he should never forget the possible emotional impact of his case upon the justices of the court who are, after all, only human with their own emotions, background, training, and predilections. By his argument, counsel may or may not sway the court in one direction or another. No one can say that an effective presentation of a case before an appellate tribunal will necessarily cause the advocate to be victor ious. Many very able arguments were made before the United States Supreme Court in the School Segregation Cases by respondents and appellees who lost. It can be said, how ever, that argument "well done" is of inestimable value to a court that has not made up its collective mind before such argument. In such a situation the really able advo cate may well swing the scales of justice in his client's favor. CHAPTER III SOCIAL SCIENCE BACKGROUND One of the principal arguments relied upon by counsel for the Negro children was: Segregation inflicts emotional and psychological harm on Negro children; segregated education is thus inherently inferior. Conse quently, segregation in public schools Is violative of the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment. The Supreme Court heard counsel make reference to socio-psychological testimony introduced in the lower court. The Supreme Court also had before it counsels* detailed briefs relating to the subject and the complete records and transcripts of the cases in the lower courts. The testimony of more than forty educators and social scientists who testified in the four State cases filled almost four volumes of the record. Chief Justice Warren, speaking for a unanimous Court in Brown v. Board of Education (347 U.S. 483, 493- 494), said: We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive 57 58 the children of the minority group of equal educa tional opportunities? We believe that it does. . . . To separate them [Negro children in grade and high schools] from others of similar age and qualifica tions solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a Court which nevertheless felt compelled to rule against the Negro plaintiffs: ’ 'Segregation of white and colored children in public schools has a detri mental effect upon the colored children. The impact is greater when it has the sanction of 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 edu cational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system." Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.*-11] [The Court’s footnote 11 became the celebrated "Social Science footnote11" in legal critiques of the case.] The decision-making process involves two basic elements: ascertaining the facts, and ttien applying the appropriate rules of law to those facts. When counsel argued the inequality of educational opportunity for Negro children, it was essential to establish the factual basis for the argument. The lawyers turned to the social sciences to provide evidence upon which the Court could justify a new legal position. Judges obtain their knowledge of social science Issues through many channels, Including "Judicial notice." 59 To some degree the facts a Judge needs to orient himself for a decision involving broad social issues may be supplied by the Judge himself, through the process of "Judicial notice."1 It can also be defined as the cognizance of certain facts which a Judge may properly take and act upon without proof, because he is already acquainted with those facts which are regarded as established by common knowledge of those facts. Justice Frankfurter made reference to this type of research in an exchange with Thurgood Marshall during oral argument in the School Segregation Cases: JUSTICE FRANKFURTER: Can we not take Judicial notice of writing by people who competently deal with these problems? Can I not take Judicial notice of Myrdal's book without having him called as a witness? MR. MARSHALL: Yes sir. But I think when you take Judicial notice of Gunnar Myrdal’s book we have to read the matter, and not take portions out of context. Gunnar Myrdal’s whole book is against the argument. JUSTICE FRANKFURTER: That is a different point. I am merely going to the point that in these matters this Court takes Judicial notice of accredited writings, and it does not have to call the writers as witnesses. How to inform the Judicial mind, as you know, is one of the most complicated problems. It is better to have witnesses, but I did not know that we could not read the works of competent writers.2 Fact finding in the Courts by means of Judicial research or Judicial notice is supplemental to evidence Murphy and Pritchett, Courts, Judges and Poli tics : . . ., p. 318. 2 Transcript of Oral argument, Briggs v. Elliott, December 10, 1952, pp. 58-59. presented in the lower or trial court. In the school cases the problem facing plaintiffs' counsel was to determine the kind of evidence which would influence the Court in its final decision. Jack Greenberg, reviewing the social scientists' testimony in the school cases, said: Although jurisprudents and social scientists have long complained of a gulf between law and social science, little notice has been given to the recent, recurrent collaboration between the two at the trial level. In a variety of cases social scientists' testimony is playing a role in the shaping of Judge-made law and in helping find relevant facts which must be proved under existing rules of law.3 Counsel for the Negro children in the school cases deter mined that social science evidence was worthy,relevant, and important in the presentation of their cases. "The segregation cases supply by all odds the most important recent illustration of the problems in attempting to present social science evidence in court."1 * Greenberg and Hill related the procedural concepts planned by NAACP counsel regarding the use of social science testimony and evidence in the school cases.^ The 3jack Greenberg, "Social Scientists Take the Stand: A Review and Appraisal of their testimony in litigation," 54 Michigan Law Review 953, 1956. **Murphy and Pritchett, op. cit. , p. 320. 5jack Greenberg and Herbert Hill, Citizen's Guide to Desegregation (Boston Massachusetts, The Beacon Press, 1955), pp. 88-107. 61 Sweatt and McLaurln cases showed a possible way to attack segregation In the lower schools. The problem was to determine whether experts In elementary and high school education and related social sciences could establish the inherent Inequality of segregation at lower levels (as had been established In the graduate and professional schools in Sweatt and McLaurln). Before the school segregation trials got underway in the four State cases, "requests for assistance went out to educators and social scientists who were in a position to help." In some instances the defense made preliminary objections to the experts' testimony; but what they had to say was placed in the records to be studied by the Supreme Court. The objection made most often was that of irrelevancy: if segregation in education were constitutional and entirely a State prerogative, then it was argued that any harm it might do would be constitutionally irrelevant. However, in all instances the Courts permitted the testimony to be given, reserving their rulings on relevancy for the end of the case. There was also objection to some testimony on the grounds of competency; for example, the question was raised whether a political scientist is competent to inform the courts of the effects of school segre gation on government and politics. The following colloquy illustrates some of the considerations that the courts had to face. The witness was Professor Louis Kesselmann of the University of Louisville: MR. PIQG (DEPENDANTS' ATTORNEY): Your Honor, I object to that question because I don't think that this witness has been qualified to answer. . . . JUDGE PARKER: What do you say to that as to that? MR. CARTER (PLAINTIFFS' ATTORNEY): Well, your Honor, this professor . . . is a person who has studied the science of government. He is an educator to that extent. 62 JUDGE PARKER: He Is not a specialist in education, is he? MR. CARTER: He can express an opinion, your Honor . . . as a person who deals in the science of government, the effects of certain things upon . . . the development of citizenship . . . whether or not an idea is developed in the child . . . to support democratic institutions. And I think that he would be preeminently qualified for that question. JUDGE PARKER: It seems to me that any lawyer or any man who has any experience in government would be just as well qualified as he woiild be to express an opinion on that. He is not a scientist in the field of education. . . . (but) I'll take it for what it's worth. Go a h e a d .5 Justice Frankfurter expressed concern over the value to be given to the social science evidence: JUSTICE FRANKFURTER: I do not mean that I disrespect it. I simply know its character. It can be a very different thing from, as I say, things that are weighed and measured and are fungible. We are dealing here with very subtle things, very subtle testimony.° It was generally admitted by counsel for appellants that the information gathered in the trial courts concern ing the harmful effects of segregation could have been culled from books and articles and placed in the briefs to the Supreme Court. "Although literature is often helpful for such purposes, expert testimony, if available, can be 5lbid., pp. 90-91. ^Transcript of Oral Argument, December 11, 1952, p. 69. 63 more relevant and timely, and can be tested by cross- examination and rebuttal."7 During the four trials involved in the segregation cases, more than twenty social scientists analyzed school segregation from different points of view and, in some instances, their data were based on an examination of the minor plaintiffs. The four trial courts which heard this testimony split in their acceptance of it, two to two: Delaware and Kansas finding it true [although legally irrele vant in view of Plessy]. Virginia and South Carolina, one Judge dissenting, dismissing it as unproved and irrelevant.8 In the written brief submitted to the Court in Briggs v. Elliott (.South Carolina case), appellants cited excerpts from the testimony of expert witnesses in the field of child and social psychology who testified in the lower court: These witnesses testified as to the unreason ableness of segregation in public education and the lack of any scientific basis for such segregation and exclusion. They testified that all scientists agreed that there are no fundamental biological differences between white and Negro school pupils which would justify segregation. An expert in anthropology testified: "The conclusion, then to which I come, is differences in intellectual capacities or in ability to learn has not been shown to exist as ^Greenberg, "Social Scientists Take the Stand: A Review and Appraisal of Their Testimony in Litigation," 10c. cit.« 953, 962, (1956). ®Ibid., pp. 963-64. 64 between Negroes and whites, and further, that the results make it very probable that if such differ ences are later shown to exist, they will not prove to be significant for any educational policy or practice."9 Appellants' brief in the Virginia case contended that the record in the case demonstrated that Negro child ren were denied educational benefits and opportunities which the State itself asserted as the fundamental objec tives of its public secondary educational program. The brief states: It also demonstrates that segregation as here practiced is detrimental to the educational develop ment of Negro children. The State did not sub stantially controvert this showing but urged that the present removal of State restrictions would not benefit Negro children because their non-acceptance by white children would result in the same damage. However true this may be, it can not justify the State in refusing to adhere to its Constitutional obligations. Appellees' brief in the same case asserted that appellants had presented experts unfamiliar with conditions in Virginia or in any segregated state. The brief states: It is not based on sound scientific knowledge; their purported scientific "tests" are obviously unreliable. Constitutional determinations cannot 9Brief for Appellants Briggs v. Elliott, in the Supreme Court of the United States, October Term, 1952, pp. 5-6. 10Brief for Appellants Davis v. County School Board of Prince Edward County. Virginia, in the Supreme Court of the United States, October Term, 1952, p. 8. 65 be based on speculations which, they admit, are "on the frontiers of scientific knowledge.1,11 In oral argument for the appellees, Mr. T. Justin Moore repeated the charge: I was Interested In the Appendix which Is signed by some thirty-two alledged social scientists who say that Appendix Is out on the frontiers of scienti fic knowledge; that Is the way they describe it.12 In their brief appellees further contended: On the other hand, the Appellees presented testimony of witnesses at least equally expert and, in addition, of broad experience not only in Virginia but throughout the nation. Their con clusions are that, with conditions in Virginia as they are today, school amalgamation would do harm to the children of both races. They are firm in their views that the Negro high school child is better off in his own school than he would be in a mixed school. They point out that the high school level, with children not yet mature and the influence of parents strong, involves entirely different considerations from those at the graduate or pro fessional level. In the light of all these facts, the Court below found that segregation in Virginia high schools was not "without substance in fact or reason." Its finding of fact was that segregation caused "no hurt or harm to either race." Its conclusions were amply Justified by the evidence of record and should be affirmed.^3 ■^Srief for Appellees,in the Supreme Court of the United States, October Term, 1952, p. 10. ^"^Transcript of OrqJ. Argument, Davis v. County School Board of Prince Edward County. Virginia. December 1 0 " , ' ” 1952, p. 50. "^rief for Appellees, Davis v. County School Board of Prince Edward County. Virginia, in the Supreme Court of the United States, October Term, 1952, p. 10. 66 The brief of respondents (for Negro children) in the Delaware case Gebhart v. BeIt on was filed in advance of petitioners* brief "so that the Court may have before it a fuller exposition of their position. . . . " ^ This brief asserted that respondents* exclusion from two schools, t Claymont High School, and Hockessin School Number 29, required respondents to attend schools physically inferior to schools for white children and that that exclusion, or segregation, injures the mental health, impedes the mental and personality development of Respondents and thereby also makes inferior their educational opportunity as compared with the educational opportunities afforded white children living in Claymont and Hockessin. Respondents asserted that such exclusion was prohibited by the equal protection clause of the Fourteenth Amendment. Respondents' brief noted further that the Chancellor set forth a finding of fact, based on the undisputed oral testimony of experts in education, sociology, psychology, psychiatry and anthropology . . . that in "our Delaware society," segregation in education practiced by petitioners as agents of the State "itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated."15 •^Brief of Respondents and Appendix to Brief, Gebhart v. Belton, in the Supreme Court of the United States^ October Term, 1952, p. 2. 15lbid., p. 5. l6Ibid., pp. 5-6. Louis Redding (for Negro respondents! called the Court's attention to the testimony of a witness whom the Delaware Chancellor had characterized as one of America’s foremost psychiatrists, namely, Dr. Frederick Wertham. Mr. Redding read an exerpt from Dr. Wertham's testimony: Now, the fact of segregation in public and high schools creates in the mind of the child an unsolv- able conflict, an unsolvahle emotional conflict, and I would say an inevitable conflict— -it is inevitable that it cause such a conflict. This conflict is, in the child's mind, what a foreign body is in the child's body.17 In the same case the brief for petitioners (.State of Delaware) maintained: "Segregation does not in and of itself violate the equal protection clause of the Four- 1 R teenth Amendment." 0 The brief charged that the testimony of the educators, psychologists, and sociologists "is Imprecise and uncertain and has led to conflicting findings of fact" in the Delaware case as well as the other State cases.*9 In the Brown, Briggs, and Davis briefs filed in the School Segregation Cases in the Supreme Court, October Term, 1952, appellants added an Appendix which was called "The Effects of Segregation and the Consequences of ^Transcript of Oral Argument, Gebhart v. Belton. December 11, 1952, p. 48. ^Brief for Petitioners, in the Supreme Court of the United States, Gehhart v. Belton. October Term, 1952, p. 12. ^ Ihld.. p. 13. 68 Desegregation: A Social Science Statement.” The state ment begins: The problem of the segregation of racial and ethnic groups constitutes one of the major problems facing the American people today. It seems desir able, therefore, to summarize the contributions which contemporary social science can make toward its resolution. There are, of course, moral and legal issues involved with respect to which the signers of the present statement cannot speak with any special authority and which must be taken into account in the solution of the problem. There are, however, also factual issues involved with respect to which certain conclusions seem to be Justified on the basis of available scientific evidence. It is with these issues only that this paper is con cerned. 20 The statement defined segregation as that restriction of opportunities for different types of associations between the members of one racial, religious, national or geographical origin, or linguistic group and those of other groups, which results from or is supported by the action of any official body or agency representing some branch of government.21 The statement also delimited the scope of the problem for the brief noting that segregation takes place in a social milieu or context "in which 'race' prejudice and descrimi- 22 nation exist." In appellee^' brief to the Supreme Court in Brown v. v. Board of Education (Kansas case) they contend 2®37 Minnesota Law Review» 427 (1953). 21Ibid., p. 423. 22Ibid. 69 That finding [No. VIII of the trial court] is couched in general language and in effect simply shows that segregation in the public schools has a detrimental effect upon colored children and a tendency to retain or retard their educational and mental development and to deprive them of some of the benefits they would receive in a racial inte grated school system. The finding does not speci fically show that any of the appellants have actually and personally suffered by reason of segregation in the public schools of Topeka nor that the mental development of any of the appellants in this case has been retarded; and the finding does not even purport to show discrimination against the appel lants and in favor of any other students in the Topeka school system. It nowhere discusses the effect of segregation upon children of any race other than colored children. Therefore, the District Court's Finding of Fact No. VIII fails to show either that the appellants have suffered any personal harm, or that they are being deprived of benefits or subjected to detriments which do not equally apply to other students in the Topeka school system. Thus, the appellants have failed to secure findings of fact sufficient to entitle them to injunctive relief or to a reversal of the judgment below.^3 Appellants' counsel, Mr. Robert L. Carter, contended during oral argument that segregation makes it impossible for Negro children to receive equal educational opportunities. After Carter quoted Finding No. VIII, Justice Reed asked: JUSTICE REED: And the findings go to the ability to learn or merely on the emotional reaction? MR. CARTER: The finding says that— JUSTICE REED: I know about the findings, but the evidence? 23 Brief for Appellees in the Supreme Court of the United States, October Term, 1952, Brown v. Board of Education, pp. 9-10. 70 MR. CARTER: The evidence, yes, sir. The evidence went to the fact that in the segregated school, because of these emotional impacts that segregation has, that it does impair the ability to learn; that you are not able to learn as well as you do if you were in a mixed school, and that further than that, you are barred from contact with members of the dominant group and, therefore, your total educational^^ content is somewhat lower than it would be ordinarily. In oral argument for the appellees Paul Q. Wilson, repre senting the State of Kansas, commented: I should also like to point out that the finding of fact was based upon the uncontested evidence pre sented by the case. We think it is obvious, however,that the District Court regarded finding of fact No. VIII as being legally insignifleant because having made a finding of fact, a finding of fact No. VIII, wherein the general statement is made that Negro children might be benefited by attendance at an integrated school system, the District Court concluded in its con clusion of law simply this: The Court has hereto fore filed its finding of fact and conclusions of law, together with an opinion, and has held that, as a matter of law, the plaintiffs have failed to prove that they were entitled to the relief demanded. In other words, finding of fact No. VIII is immaterial, we believe, so far as the issues of this case are concerned. In rebuttal, Carter's opening sentence was "We think that finding of fact of the court below makes neces sary a reversal of its Judgment." He continued: Without regard to any other consideration, the Court below found that inequality flowed from segregation, and our position, as stated previously, 2 i | Transcript of Oral Argument, Brown v. Board of Education. December 9, 1952, pp. 1*1-15. 25Ibid., pp. H7-48. 71 is if there are facilities, educational opportunities, in fact, that educational opportunities cannot be equal in law.2® In the Brown decision, the Supreme Court apparently agreed with the finding of the Kansas Court. The Supreme Court said this finding was "amply supported by modern authority," and cited seven references in footnote 11. The first citation was to Kenneth B. Clark, who had helped prepare a fact finding report for the Mid-Century White House Conference on Children and Youth.2? The report brought together available social science and psychological studies related to the problem of how racial and religious prejudices influenced the development of a healthy person ality. The report highlighted the fact that segregation, prejudices and discriminations, and their social concomitants poten tially damaged the personality of all children— the children of the majority group in a somewhat different way than the more obviously damaged children of the minority group.2® The report continued: . . .as minority group children learn the inferior 26Ibid., p. 50. ^Kenneth B. Clark, "Effect of Prejudice and Dis crimination on Personality Development," Fact Finding Report Mid-Century White House Conference on Children and Youth (.[Washington, D. C.]: Childrens Bureau, Federal Security Agency, 1950). (Mimeographed.) 28"The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement," 37 Minnesota Law Review. 427, 429 (1953). 72 status to which they are assigned— as they observe the fact that they are almost always segregated . . . they often react with feelings of inferiority and a sense of personal humiliation. . . . The minority group child is thrown into a conflict with regard to his feeling about himself and his group. . . . This conflict and confusion leads to self-hatred and rejection of his own group.2“ The minority group child must find ways to cope with his conflicts. The pattern of behavior depends upon many interrelated factors such as the family environment and background, the social and economic class to which he belongs and other personal characteristics. Some children, usually of the lower socio-economic classes, may react by overt aggressions and hostility directed toward their own group or members of the dominant groups. . . . Middle class and upper class minority group children are likely to react to their racial frustrations and conflicts by withdrawal and submissive behavior . . . minority group children of all social and economic classes often react with a generally defeatist attitude and a lowering of per sonal ambitions.30 Segregation and its concomitant effects upon the majority group are more obscure than the effects upon the minority group. A number of behavioral conflicts were noted: The culture permits and, at times, encourages them to direct their feelings of hostility and aggression against whole groups of people, the members of which are perceived as weaker than themselves. They often develop patterns of guilt feelings, rationalizations and other mechanisms which they must use in an attempt to protect themselves from recognizing the essential injustice of their unrealistic fears and hatreds of minority groups. 29Ibid., 429. 3°Ibld., pp. 429-30. 73 The report indicated further that: . . . confusion, conflict, moral cynicism, and disrespect for authority may arise in majority group children as a consequence of being taught the moral, religious and democratic principles of the brotherhood of man and the importance of justice and fair play by the same persons and institutions who, in their support of racial segregation and related practices, seem to be acting in a prejudiced and discriminatory manner. In the Briggs v. Elliott brief (South Carolina case), appellants cited excerpts from the testimony of expert witnesses in the field of child and social psychology who testified in the trial below: One of the experts in the field of child and social psychology testified that he had made special studies of the recognized methods of test ing the effects of racial prejudice and segregation on children. He used a test of this type on Negro school children including the infant appel lants in School District No. 22 a few days before the trial. Prom his general experience in this field and the results of his tests he testified: "a. The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities; that the signs of instability in their personalities are clear, and I think that every psychologist would accept and interpret these signs as such."’2 During his argument, Thurgood Marshall recalled similar testimony from the trial below. He referred to Dr. Kenneth Clark, who "examined the appellants in this very case and 31Ibid., p. 431. •ap J Brief for Appellants, Briggs v. Elliott. op. cit.. p. 5. 74 found that they were injured as a result of this segrega- 00 tion. The court completely disregarded that." J Later in the argument Marshall contended: In the brief for the appellees in this case and the argument in the lower court, I have yet to hear any one say that they denied that these children are harmed by reason of this segregation.34 Referring to Marshall's reliance upon that social science evidence, John W. Davis, counsel for appellees, remarked: 11. . .it would be difficult for me to conceal my opinion that that evidence in and of itself is of slight weight and in conflict with the opinion of other and better informed sources."^ During his analysis of Dr. Clark's testimony, Davis said: I may have been unfortunate, or I may have been careless, but it seems to me that much of that which is handed around under the name of social science is an effort on the part of the scientist to rationalize his own preconceptions. They find usually, in my limited observation, what they go out to find.3o In rebuttal, Marshall argued: They claim that our expert witnesses and all that we have produced are a legislative argument at best; that the witnesses were not too accurate, and were the run-of-the-mill scientific witnesses. But I think if it is true that there is a large body of scientific evidence on the other side,the 39 JJTranscript of Oral Argument, Briggs v. Elliott. December 9, 1952, p. 7. 34Ibid., pp. 22-23. 35Ibid., p. 32. 36Ibid., p. 51. 75 place to have produced that was In the District Court, and I do not believe that the State of South Carolina Is unable to produce such wit nesses for financial or other reasons.37 Research findings similar to the Clark report may be found In another of the Courts’ references: Personality o Q In the Making. Witmer and Kotinsky. It was a detailed report of the findings of the research staff for the Mid- Century White House Conference on Children and Youth In 1950. Some of the observations made In this book supported the theory that prejudice and discrimination work to the disadvantage of the personality development of most minority group members In one way or another. . . . an individual who Is surrounded by pervasive hostility and rejection and has become ambivalent In his feelings about himself Is likely to react to both the ambiguous and the objectively non threatening aspects of his experience with defen siveness and hypersensitivity. Minority-group children are characteristically hypersensitive and anxious about their minority status, hostile toward the members of the dominant group, their own group, and other minority groups. They exhibit a gener alized pattern of personality difficulties that seems to be associated with the humiliation to which they are subjected. Not that all of them are obviously emotionally maladjusted. The majority pulls through somehow or other, but with what burden of resentment and bitterness few know.39 3^Ibid., p. 58. *3 Q D Helen L. Witmer and Ruth Kotinsky, ed., Person allty In the Making (New York: Harper Brothers, 1952). 39Ibid., p. 138. 76 The Court next cited an investigation made by Deutscher and Chein in 19^7*1,0 The purpose of the Deutscher and Chein study was to gather material which would be relevant to a court decision concerned with segregation. The study gathered current opinions of social scientists about "the psychological effects of enforced segregation, both on the group which enforced the segre gation and on the group which is segregated."1 *1 Eight hundred and forty-nine scientists were sent a question naire and five hundred seventeen replied. Ninety per cent expressed the opinions that "... enforced segregation has detrimental psychological effects on the segregated lip groups." Eighty-three per cent of the respondents believed that "enforced segregation had detrimental psychological effects on the group which enforces the segregation."^3 Following are some of the attitudes and impressions by those who responded regarding the psycho logical effects of segregation on the minority: ^Max Deutscher and Isidor Chein, "The Psychologi cal Effects of Enforced Segregation: A Survey of Social Science Opinion," 26 Journal of Psychology 259 (19**8). ^ Ibid. . p. 259. ^ Ibld. . P. 265. 1 *3Ibid., p. 265. 77 . . . special stresses are created for Individuals by the discrepancy between democratic schooling with respect to equality and the practice of en forced segregation with its implication of infer iority. . . . segregation is a special source of frustra tion, without any reference to the effects of its specific societal setting. . . . feelings of inferiority and of not being wanted are induced by practices of segregation . . . . . . development of submissiveness, martyrdom, feelings of persecution, withdrawal tendencies, self-ambivalence . . . ^ Regarding the effects of segregation on the majority or enforcing group: . . . as far as the enforcing groups are con cerned, segregation is more a symptom of some maladaptive psychological process than a cause. . . . inner conflicts and guilt feelings which result from membership in the groups which enforce segregation.45 During oral argument of the Virginia case, T. Justin Moore, counsel for the appellees, said: One of the most interesting witnesses was Dr. Chein. He has written a great deal on this subject and he testified as to a questionnaire that he had sent out to some 850 social scientists, he said, asking them two main questions: first, as to whether or not in their view segregation was harmful to those segregated; and secondly, was it harmful to those who did not segregate, and he said that the replies he got were some ?00, and that some 90 per cent of the people who answered said that it was bad on both groups. ^ Ibld.. pp. 272,273,274 1<5Ibid., pp. 278,279. 78 We showed on cross examination and otherwise that there were some six or eight thousand persons who were eligible to have that questionnaire sent to them; we showed that only thirty-two came from south of the Mason and Dixon line, and he was unable to show a single one from Virginia, and what you wind up with Is that you get a statement In the air as sort of a moral principle— It Is kind of a religious statement that you get— that, In principle or in theory, in the abstract that segregation is a bad thing to have.^6 w Justice Frankfurter interrupted: JUSTICE FRANKFURTER: Mr. Moore, of what would the six or eight thousand people be specialists in or of? MR. MOORE: Well, there is a great line— JUSTICE FRANKFURTER: Who are these specialists in that field? MR. MOORE: Well, they describe them as sociologists, anthropologists, psychologists, and variations of those groups, principally, Your Honor. JUSTICE FRANKFURTER: Everybody in the sociological field is an expert in his domain? MR. MOORE: That is right, Your Honor/7 48 Footnote 11 also cited an article by Isidor Chein. This reference contains essentially the same information expressed in the research already discussed directly above. 46 Transcript of Oral Argument, Davis v. County School Board of Prince Edward County. Virginia, December 10, 1952, p. 52. 47Ibid., pp. 52-53. 4ft Isidor Chein, "What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?" 3 International Journal of Opinions and Attitudes Research. PP- 229-234. 79 The Court next referred to Theodore Brameld’s lecture on "Educational Costs" delivered in a course on "The Costs of Discrimination to the U. S." It was present ed by the Institute for Religious and Social Studies in New iiq York City. 7 As a result of discrimination, there are certain social losses which are of a more or less material character and difficult to measure, said Brameld. "Think of the cost in unhappy, inefficient, poorly trained workers which results from denial to the Jew or Negro of his right CQ to the kind of education he desires and deserves." Think of the loss in sheer ignorance which in turn causes people to behave unintelligently as consumers, voters, parents. Think of the cost in delinquency, crime, poor relief— unsocial phenomena also closely correlated with ignorance. Perhaps most appalling, think of the loss in all of these and still other ways from which the majority populations also suffer because of their own interdependence with minorities. Social scientists are almost unanimously agreed that the white people and the Christian people of the United States suffer more from the effects of discrimination than do minority groups themselves. The cost of poorly trained workers, for example, is borne by the whole economy, not by just these workers.51 Brameld discussed those losses resulting from discrimina tion which he considered more qualitative in nature. One of the most important is the "tremendous cultural loss" that results from isolation of groups from one another. ^Theodore Brameld, "Educational Costs" in Discrimi- nation and National Welfare, Maclver, R. M., ed. (New York: Harper & Bros., 19*19) • 5°Ibid., p. 44. 51Ibid 80 And education itself is perhaps the greatest loser— both in the direct sense that children and adults of different races, religions, nationalities fail to en rich one another, but in the indirect sense that cul tural learning is narrowed and distorted.” Another detrimental effect of segregation is epitomized by the term "social neurosis." The dual phenomenon of "frus tration and aggression" exemplifies that neurosis. Brameld also noted what he termed the "compensatory mechanism." To blame the Negro and Jewish student for so-called clan- ishness "is no more scientific than to blame their parents for living in ghetto-like sections of urban communities, because restrictive covenants prohibit residence else where . There were other costs of segregation: . . . costs in conflict and confusion of values; costs in the domination of reason by passion; costs in sacrifice of integrity (witness the distortions by officials of universities and colleges regarding the quota system); costs in denial of truth or value seek ing through free concensus attained by participation of all groups; costs, above all, in the denial of self realization, of the maximum fulfillment of per sonality and group associations by boys and girls, men and women, who are refused completely equal educational opportunity because of skin color or religious faith. The Negro in the United States, by Franklin Frazier 55 of Howard University, was next cited by the Supreme Court. 52Ibid. ; p. 45. 53Ibid., p. 46. 511 Ibid., p. 47. 55 ^E. Franklin Frazier, The Negro in the United States (New York: The Macmillan Company, 1949), pp. 674- F 5 T . Particular reference was made by the Court to that section of the book relating to certain effects of discrimination on the Negro and the emergence of the Negro as a minority. Frazier observed that the theory of separate-but-equal educational facilities has never worked out in practice. "Separate education for Negroes has always meant inferior schools and inferior teaching personnel for Negro children. Inferior schools have caused a high rate of illiteracy to continue among Negroes since Emancipation."56 Discrimi nation in employment has kept the Negro in the lowest paid and unskilled occupations. One of the truly remarkable phases of race relations in the United States "is the fact that whites and Negroes do not know each other as human beings.1157 Race prejudice and discrimination have pre vented "normal human intercourse" between the races. The white tendency has been to appraise the Negro "according to standards inferior to the generally accepted standards. The unexpressed pathos seems to be: it is good for the poor Negro."5® Frazier noted that while under the system of slavery the Negro had a place in the social organization. 56ibid., pp. 674-675. 57ibid.* P« 677. 58lbid., pp. 677-678. 82 After the Civil War, and especially during the Reconstruc tion Period, an attempt was made toward integration of the Negro into Southern life. The resulting racial conflict and the so-called restoration of "white supremacy" tended to exclude the Negro from participation in the life of the South. During this period the North repudiated its idealism in regard to the Negro and the country became intensely conscious of its "Negro problem." However, the Negro was not regarded as simply a group with a different racial and cultural back- jground as, for example, the Italians or Poles. He was regarded as an inferior human being and his poverty, ignorance, and social disorganization as well as his folk culture were considered an inevitable consequence of his inferiority.59 Frazier believes that the Negro occupies a unique position in the United States. "Although the Negro is distinguished from other minorities by his physical charac teristics, unlike other racial or cultural minorities the Negro is not distinguished by culture from the dominant group.Frazier believes that since the Negro views his culture as similar to that of the larger community he finds it difficult to understand why he has not been fully assimilated into American life. The Supreme Court’s last citation was;”. . . see generally Myrdal, An American Dilemma Cl9^). "^1 59ibid., p. 679. 6oIbid., p. 680. ^Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, -------------- Dr. Myrdal's two volume flfteen-hundred-page analysis of the Negro In America Is so large In scope that any attempt to summarize or analyze this large work would be practically Impossible. Although when first published It was hailed by many critics as one of the best studies of the problem of the Negro in America, the research has been subjected to detailed critiques in a variety of publications.^2 For purposes of this research, discussion of Dr. Myrdal's treatise will be confined to two primary areas: first, the author's viewpoint expressed in the introduction, and second, the section dealing with Negro attitudes toward school education. Myrdal saw the Negro problem as a moral issue, especially as it related to what he termed the "American Creed." The American Negro problem is a problem in the heart of the American! It is there that the interracial tension has its focus. It is there that the decisive struggle goes on. This is the central viewpoint of this treatise. Though our study includes economic. social, and political race relations, at bottom oufr problem is the moral dilemma of the American-—the conflict between his moral valuations on various levels of consciousness and generality. The American Dilemma." referred to in the title of this book, is" the ever-raging conflict between, on the one hand. ^ American Sociological Review. IX (19***0, 326-330; Herbert Aptheker. The Negro People in America (New York: International Publishers! 1945]; James 0. Eastland, "The Supreme Court's 'Modern Scientific Authorities' in the Segregation Cases; before the Senate, May 26, 1955," Congressional Record. May 26, 1955: pp. 7119-2**, Vol. 101, Part 6, 84th Congress, First Session. 8 1» the valuations preserved on the general plane which we shall call the "American Creed." where the American thinks, talks, and acts under the Influence of high national and Christian precepts, and, on the other hand, the valuations on specific planes of Individual and group living, where personal and local Interests: economic, social, and sexual Jealousies; considera tions of community prestige and conformity; group prejudice against particular persons o t types of people; and all sorts of miscellaneous wants. Impulses. and habits dominate his outlook, (p. xliii) Explaining his theory of human behavior and motivation, he declared "The essence of the moral situation Is . . . that the conflicting valuations are also held by the same person" (p. xliv). The moral struggle goes on within people and not only between them. As people's valuations are conflicting, behavior normally becomes a moral compromise. There are no homogeneous "attitudes" behind human behavior but a mesh of struggling inclinations. Interests, and Ideals, some held conscious and some suppressed for long Intervals - but all active in bending behavior In their direction.b3 The task of Myrdal1s treatise was to ascertain social reality as it was; he maintained that material facts in large measure "are the product of what people think, feel and believe. The actual conditions, as they are, indicate from this point of view the great disparities between the whites1 and the Negroes' aspirations and reali zations."^ For Myrdal, It was the interrelationship between the material facts and people's valuations of aid beliefs about these facts that make the Negro a social problem. 63lbid. 61,Ibid. 85 Regarding the attitudes of Negroes toward educa tion, Myrdal observed that the Negro world is divided in the same way and on the same Issues as the whites. "Deep down in their souls practically all Negroes feel that they have the right to equal opportunities for education."^5 In his opinion the Negro world is split as to what kind of education is desirable for the Negro generally: voca tional versus non-vocational training and segregated versus non-segregated. (It should be recalled that Myrdal's book appeared ten years prior to the Supreme Court's school segregation decision). Myrdal summarized sectional opinion concerning segregation: In the North the official opinion among whites is that segregation is not compatible with equality, but, as we have seen, much segregation is actually in effect as a consequence of residential segregation and of gerrymandering districts and granting permits to transfer. In the South direct segregation in schools is a necessary means of keeping up the tremendous financial discrimination against Negro schools. In recent years not even Southern liberals— with some rare exceptions— have stated that they favored mixed education. Segregation is usually not motivated by financial reasons but as a precau tion against social equality.66 In the research for his book Myrdal visited many Negro schools. He evaluated Negro facilities, particu larly in many rural regions, as "scandalously poor." He did recognize an improving trend however. Almost 65ibid., p. 900. 66Ibid. p. 901. 86 prohetlcally he added: The skillful strategy of the N.A.A.C.P. is probably going to enforce a raise in the wages of Southern Negro teachers over the next decade and will, if it does not open the door of the graduate schools to Negroes, at least compel the Southern states to initiate some sort of graduate training in the state- supported Negro colleges. In the beginning this graduate training will perhaps be merely a sham gesture, but a basis for further advance will have been created. Segregation will probably be upheld on all levels while discrimination is being fought and decreased. Segregation will less and less be a means of economy; gradually it will, instead, become a financial burden. It Is not unlikely that segre gation will then start to break down on the highest level. In the total view, the prospects are thus not entirely discouraging. In fact, there have never been, since Reconstruction, fewer reasons for a defeatist attitude in regard to Negro education in the South.oV In concluding his chapter on Negro education, Myrdal states: "The American nation will not have peace with its conscience until inequality is stamped out, and the principle of public education is realized universally."®® It is apparent that the voluminous testimony given by "social scientists" and introduced into evidence in the various lower court trials in the School Segregation Cases was accepted and utilized by the Supreme Court to defend its decisions in Brown v. Board of Education and Bolling v. Sharpe. Both in their written briefs and oral argument, counsel for the Negro school children urged that segregated 6?Ibld. pp. 903-904. 68Ibld. p. 907. but substantially equal physical facilities cannot be equivalent because enforced segregation on the basis of race deprives the Negro child of equal educational oppor tunities. They also argued that enforced school segrega tion has a detrimental effect on the motivation of a child to learn because it gives him a feeling of inferiority, and the impact is even greater when it has the sanction of lawj to separate Negro children from white children in grade and high schools solely on the basis of race creates "feelings of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Because school segregation on a racial basis had these effects, argued counsel, it violated the equal protection clause of the Fourteenth Amendment to the Con stitution of the United States. Although the sociological evidence presented by appellants was treated with sarcasm and derision by their opponents, the Court's decision attests to the validity and acceptance of appellants' arguments in this regard. CHAPTER IV LEGAL-HISTORICAL BACKGROUND Introduction The oral arguments of counsel in the School Segre gation Cases and the ultimate decisions of the Court can be understood only within the context of precedent law. Understanding the School Segregation Cases requires Information about the legal system In which such a decision could be made and came to be made. It requires knowledge of the Judicial process and know ledge of what a Judicial decision can and cannot do. And It necessitates a special study of that extra ordinary document known as the Constitution of the United States which encompasses a vast number of meanings, all but hidden behind the words of the framers.^ Whether a court is persuaded to uphold precedent and the status quo or to cast it aside and create new precedent, it will nevertheless invariably discuss, dissect, rationa lize, and Justify the basis for its ultimate ruling. The advocate standing before the bar, arguing his case, will cite precedents, statutes, constitutional pro visions, and the facts to support his viewpoint. If he Albert P. Blaustein and Clarence Clyde Ferguson, Jr., Desegregation and the Law (New Brunswick, New Jersey; Rutgers University ^ress, 1957), p. xi. 88 seeks to preserve the status quo, he will attempt to demonstrate how past cases fit his fact situation on "all fours;" he will cite the long history and judicial accep tance of certain cases and argue that continuity of prece dent requires the court to uphold such case law. In defend ing the Plessy v. Ferguson doctrine of separate-but-equal during his argument for appellees in Briggs v. Elliott, John W. Davis illustrated how precedent was argued to retain the status quo: We find nothing in the latest cases that modifies that doctrine of "separate but equal" in the least. Sweatt v. Painter and similar cases were decided solely on the basis of inequality, as we think, and as we believe the court intended. It is a little late, said the court below, after this question has been presumed to be settled for 90 years — it is a little late to argue that the question is still at large.2 The champions of the status quo will further argue that the "mandate" contained in the language of the Consti tution of the United States is an inflexible one; that changed political, sociological, and economic conditions wrought by the passage of time may affect policy, but can not broaden the terminology of the Constitution. Mr. Davis, who espoused this position, was challenged by Justioe Burton during argument: 2Transcript of Oral Argument, Briggs v. Elliott, December 10, 1946, p. 46. 90 JUSTICE BURTON: What is your answer, Mr. Davis, to the suggestion mentioned yesterday that at that time [1866] the conditions and relations between the two races were such that what might have been unconstitutional then would not be unconstitutional now? MR. DAVIS: My answer to that is, that changed conditions may affect policy, but changed conditions cannot broaden the terminology of the Constitution, the thought is an administrative or a political question and not a judicial one. JUSTICE BURTON: But the Constitution is a living document that must be interpreted in relation to the facts of the time in which it is interpreted. Did we not go through with that in connection with child labor cases, and so forth? MR. DAVIS: Oh, well, of course, changed conditions may bring things within the Scope of the Constitution which were not originally contemplated, and of that perhaps the aptest illustration is the interstate commerce clause. Many things have been found to be interstate commerce which at the time of the writing of the Constitution were [not] contemplated at all. Many of them did not even exist. But when they come within the field of interstate commerce, then they become subject to congressional power, which is defined in the terms of the Constitution itself, so circumstances may bring new facts within the purview of the constitutional provision, but they do not alter, expand or change the language that the framers of the Constitution have employed.3 Those who opposed the change from segregated to unsegregated public schools in the United States contended that the doctrine of stare decisis obligated the Court to support existent law, namely, the maintenance of separate- but-equal schools. Stare decisis is a rule of public policy. It is based on the assumption that certainty, 3Ibid., p. 42. 91 predictability, and stability in the law are the major objectives of the legal system; that is, that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law. . . . [stare decisis] is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrin sically sounder and verified by experience.^ Simply stated, the courts of the United States and of the states will "ordinarily follow precedents when the same points arise in subsequent litigation, although they will not persist in an absurdity or perpetuate a manifest error."5 In the milieu of American history, 1952-1953» the proponents of change who stood before the Court argued that the time had come to end what had been established practice and law in the United States; namely, if the schools were physically equal or substantially so, then segregation by reason of race and color was legally acceptable. They contended that racial segregation in our public schools was unconstitutional and argued that separate schools were inherently unequal; that separating Negro and ^Helvering v. Hallock, 309 U.S. 106. 5Childers v. Childers. 7^ Cal. App. 2d 56, 61. 92 white children in public schools solely on the basis of race was an unreasonable and unconstitutional classifica tion; that expert testimony had demonstrated that a Negro child is injured emotionally on account and by reason of segregation and was therefore, in violation of such child's rights under the equal protection clause of thePourteenth Amendment of the Constitutions of the United States. Immediately prior to the Civil War, the rights of the Negro slave came sharply into focus. Regardless of the alleged economic or political causes of that War, the emotional and inflammatory issue was the institution of slavery in the United States. The now infamous decision rendered in Dred Scott v. Sandford (19 Howard 393, 1856) clearly and definitively depicted the hopelessly ignomin ious plight of the Negro 98 years before Brown v. Board of Education. Although not directly related to the School Segregation Cases, Dred Scott was discussed and even quoted by Mr. Korman, one of the counsel arguing against desegre gation. This case is also important in better understand ing the sometime specious reasoning utilized by members of the Court to support their own or what they consider to be the mores, philosophy, and thinking of their time. Dred Scott, a Negro slave, had been taken from the slave State of Missouri to the free territory of Minnesota. 93 Scott lived in Minnesota four years. He returned to Missouri and claimed that his residence had made him a free man under the law. He sued for his freedom in the Courts of the United States and his attempt to free himself and his family from slavery failed. Chief Justice Taney, who wrote the majority opinion, first determined Negroes have none of the rights granted "citizens" and therefore have no standing in a court of law. . . . they are not included, and were not intended to be Included, under the word 'citizen' in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides for and secures for the citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges, but such as those who held the power in the government might choose to grant them, . . . In the opinion of the Court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been Imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, not intended to be included in the general words used in that memorable instru ment .... They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race. either in social or political relations; and so far inferior, that they have no rights which the white man was bound to respect; and that the Negro must Justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article, of merchandise and traffic, whenever a profit could be made by it. (Italics mine.) The Chief Justice, after quoting from the Declaration of Independence, "that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness, . . .” contended, it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for, if the language, as under stood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flag rantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation . . . In a country founded on the idealism of the Declaration of Independence— the "land of the free"— the Supreme Court of the United States in 1856 used that great document to prove that its framers did not intend to include Negroes. The case represents a slice of American history too blatant to ignore and evidences the workings of the judicial mind bent on maintaining the status quo in economic, political, and human relations. Certainly Dred Scott v. Sandford made a significant contribution to the growing ferment against the institution of slavery and the post-War constitutional and statutory enactments aimed at slavery. In turn, those enactments and the Fifth Amendment gave rise to the cases which came to partial fruition in the Brown case. Applicable Constitutional and Statutory Enactments FIFTH AMENDMENT (Ratified December 15, 1791) No person shall be . . . deprived of life, liberty or property without due process of law. THIRTEENTH AMENDMENT (Ratified December 18, 1865) Section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place sub ject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. FOURTEENTH AMENDMENT (Ratified July 23, 1868) Section 1. All persons born or naturalized in the United States, and subject to the juris diction thereof, are citizens of the United States 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 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. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provi sions of this article. CIVIL RIGHTS ACT (1866) (c. 31, l1 * Stat. 27) This first Civil Rights Act came shortly after the rati fication of the Thirteenth Amendment. In substance, It stated that all persons born in the United States, excluding Indians not taxed, to be citizens of the United States; that such citizens, without regard to race, color, or previous condition of servitude, shall have the same legal rights as are enjoyed by white citizens, that is, to make and enforce contracts, sue in our courts, be parties, and to give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property; shall have full and_equal benefit of all laws and proceedings for the security of person and property. This enactment also provided that any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject or cause to be subjected, any inhabitant of any state or territory, to the deprivation of any right secured or pro tected hy this act, or to different punishment, pains, or penalties, on account of such person's race, color, or previous condition of servitude, than is prescribed for the punishment of white persons, shall be guilty of a misde meanor. Courts of the United States were granted Jurisdic tion of offenses under the act; federal officers were given the right to proceed against all persons violating the law, and were directed to afford "protection to all persons in their constitutional rights of equality before the law, without distinction of race or color, or previous condition of slavery or involuntary servitude." 97 CIVIL RIGHTS ACT (1870) (c. llH, 16 Stat. 140) This Civil Rights Act was enacted shortly after the ratification of the Fourteenth and Fifteenth Amendments. In substance the provisions were as follows: 1. The Civil Rights Act of 1866 was reenacted. 2. That all citizens, otherwise qualified by law to vote in any election in any state or subdivision thereof, shall be allowed to vote without distinc tion as to race, color, previous condition of servitude. 3. That if two or more persons shall conspire together, or go in disguise with intent to violate any pro vision of the act; or to injure, or press, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise of enjoyment or any right or privilege granted or secured to him by the Constitution or laws of the United States, because of his having exercised the same, shall be guilty of a felony. 4. This provision re-enacted and supplemented the 1866 Act and made it a misdemeanor to discriminate against Negro citizens in the enjoyment of their rights. 5. The Fifteenth Amendment was supplemented by many detailed provisions in this portion of the Act. 98 CIVIL RIGHTS ACT (1875) (c. 114, 18 Stat. 335) The title to this bill was "An Act to Protect All Citizens In Their Civil and Legal Rights." The preamble stated that Congress deemed it essential to just government that "we recognize the equality of all men before the law, and hold that it is the duty of government in all its dealings with the people to mete out equal and exact Justice to all, of whatever nativity, race, color, or persuasion, religious or political," and that it is "the appropriate object of legislation to enact great fundamental principles into law." The Act provided that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoy ment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusements; subject only to the conditions and limitations estab lished by law, and applicable alike to citizens of every race and color, regardless of any previous con dition of servitude. The original bill, as adopted by the Senate, included schools and cemeteries, but the House substituted a bill from which these were omitted; it was the House bill that became the Civil Rights Act of 1875. By the enactments of the Reconstruction period following the Civil War, Congress sought to destroy and root out the evils of slavery and second-class citizenship for the American Negro. However, strong and active forces nullified much of the work of the radical Republicans in 99 Congress. While legal enactments of our legislatures may be the beginning of change in human relations and essential to those modifications, nevertheless, such enactments are not always consistent nor synonymous with the social and political realities of the era. The change in status of the black slave in the United States, so desired by those who enacted the above legislation, did not come easily or quickly. Even today the evidence clearly indicates that first-class citizenship for the American Negro is still not fully realized. The Constitutional Amendments and Civil Rights Acts meant to secure equal rights for the freed Negro were emasculated by enactments of certain Southern states, by social and political exclusion, by force and intimidation. All of which was indirectly supported by certain United States Supreme Court decisions. Applicable Cases The Slaughterhouse Cases Ub WallT 36; 21 L. Ed. 394, 1873) The Slaughterhouse Cases were decided in 1873* Just three years after the Civil Rights Act of 1870 and two years prior to the Act of 1875. These cases represent the first interpretation of the Fourteenth Amendment and were not primarily concerned with the rights of Negroes. The Reconstruction government in Louisiana had granted a monopoly of the slaughterhouse business to a single concern, 100 and prevented over one thousand persons and firms from continuing In that business. The Act of the Louisiana legislature was upheld by the Supreme Court of Louisiana. Based upon that decision appellants appealed to the United States Supreme Court. They argued, among other things, that the law abridged the "privileges and immunities of citizens of the United States." Mr. Justice Miller, who wrote the majority opinion, first established that there is a definite distinction between citizenship of the United States and citizenship of a state. He declared: It is quite clear, then, that there is citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. It would be the vainest show of learning to attempt to prove by citations of authority, that up te<-the adoption of the recent amendments, no claim or pretense was set up that those rights depended on the federal government for their existence or protection, beyond the very few express limitations which the federal Constitution imposed upon the states— such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the states, as above defined, lay within the constitutional and legislative power of the states, and without that of the Federal Government. Was it the purpose of the Fourteenth Amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the se curity and protection of all the civil rights which we have mentioned, from the states to the federal govern ment? And where it is declared that Congress shall have the power to enforce the article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging to the states?. . . 101 But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions, when the effect is to fetter and degrade the state governments by sub jecting them to the control of Congress, in the exercise of power heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the state and federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, and the absence of language which expressed such a purpose too clearly to admit of doubt. By distinguishing between state citizenship and federal citizenship and by emphasizing that the rights and privi leges of federal citizenship do not include the protection of ordinary civil rights but only the privileges that one enjoyed by virtue of his federal citizenship, the Supreme Court held that the privileges and immunities clause of the Fourteenth Amendment could be of no use in the pro tection of certain civil rights. Thus, according to the Court, privileges and immunities of state citizenship, or what might be called "civil rights," were left solely to the states. As a result, the rights of the recently freed slaves were made subject to the prejudice and hatred of the while segregationist and deprived of the protection of the federal government. "First-class" citizenship for the Negro was long delayed by this decision. Strauder v. West Virginia (ioo U.S. 303I In 1880, three years before the Civil Rights Cases. 102 the United States Supreme Court, in Strauder v. West Virginia, held that Negroes were entitled to be tried by a jury from which Negroes have not been excluded because of their race. A portion of that decision was used in foot note 5 by Chief Justice Warren in Brown v. Board of Educa tion: What is this but declaring that the law in the States shall be the same for the black 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 race, for whose pro tection 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 others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race. The Strauder decision continued: The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as Jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal Justice which the law aims to secure to all others. Ex Parte Virginia (100 U.S. 399, 3^-345, [1880]) In that same year the Supreme Court rendered its 103 decision in Ex Parte Virginia and seemed to be reinforcing the rights, privileges, and immunities granted the Negro after the Civil War: One great purpose of these amendments [Thirteenth and Fourteenth Amendments] was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood, into perfect equality of civil rights with all other persons within the jurisdiction of the States. They were intended to take away all possibility of oppres sion by law because of race or color. They were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress. They are to some extent declara tory of rights, and though in form prohibitions, they imply immunities, such as may be protected by Congressional legislation. The Civil Rights Cases (109 U.S. 3, LldB3J) In 1883, just eight years after the enactment of the Civil Rights Act of 1875, the Court decided the Civil Rights Cases. By its decision, the majority of the Court nullified the Civil Rights Act of 1875, struck down, Impeded, and seriously affected the "civil" or "social" rights of the American Negro for many decades to follow. While the Dred Scott Case rocked the country and dis illusioned many who looked to our Supreme Court as the defender of liberty and the protector of the rights of men, nevertheless, the effects of that decision were shortlived. The Thirteenth, Fourteenth, and Fifteenth Amendments to our Constitution and the Civil Rights Acts which followed the war nullified that decision. The Civil Rights Cases, on 10 n the other hand, Interpreted the Thirteenth and Fourteenth Amendments and declared the Civil Rights Act of 1875 unconstitutional. By this decision, the Supreme Court, in effect, took from the hands of Congress its basic power to enact broad civil rights legislation and at least tempor arily pre-empted the Congressional prerogative to act in this area under Constitutional authority. As stated above, the Civil Rights Act of 1875 pro vided that all persons in the United States shall be en titled to the enjoyment of accommodations, facilities, inns, public conveyances, theatres, and all other places of puhlic amusements regardless of race, color, or previous conditions of servitude. The Court considered together seven cases which made up the Civil Rights Cases. One case was an action against a railroad company to recover statutory penalities because a conductor refused to allow the complainant’s wife to ride in the ladies’ car due to the fact that she was a Negro; another action was filed on account of a refusal to allow a Negro a seat in the dress circle in a San Francisco Theatre; another for denying the enjoyment of accommodation in the New York Grand Opera House; two cases were tried on the basis of indictments for denying to Negroes accommodations and privileges of an inn or a hotel; and, finally two cases were actions for denying individuals privileges and accommodations of the theatre. 105 Mr. Justice Bradley, who wrote the majority opinion, first quoted the pertinent sections of the Civil Rights Act of 1875 and then stated: Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens and vice versa. The general issue was: Did Congress have the Con stitutional power to make such a law? Justice Bradley declared that the first section of the Fourteenth Amendment is "prohibitory in its character and prohibitory upon the states.... It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.. . . . It [the Fourteenth Amendment] does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legis lation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws and the action of State officers, executive or Judicial, when these are subversive of the fundamental rights specified in the amendment. . . . Justice Bradley was obviously fearful that if the Court did not intervene in these cases against the Civil Rights Act of 1875, the Congress might create powers far too broad regarding its relations with a state and its citizens. He also decided that the alleged assumption of power by the Congress "is repugnant to the Tenth Amendment 106 of the Constitution, which declares that powers not delegated to the United States by the Constitution nor prohibited by It to the States, are reserved to the States respectively or to the people. . . ." Justice Bradley quickly dismissed the use of the Thirteenth Amendment as a basis of argument for and on behalf of the complainants in these cases. He said: It would be running the slavery argument into the ground to make it apply to every act of dis crimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. . . . On the whole we are of the opinion, that no countenance of authority for the passage of the law in question can be found in either the Thir teenth or Fourteenth Amendment of the Constitution; and no other ground-of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned. . . . The prevailing decision was not unanimous. Justice • f t Harlan wrote what is generally acknowledged as one of the truly great dissenting opinions in the Supreme Court history. The majority, he stated in opening, proceeds upon ground entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. . . . Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, 107 and which they supposed they had accomplished by changes in their fundamental law. Justice Harlan then forcefully attacked the majority opinion by stating that the Court had by its decision usurped the functions of a co-ordinate department [Congress] "which, if often repeated and permanently acquiesced in, would work a radical change in our system of government. . . ." Justice Harlan continued: I may be permitted to say that if the recent amend ments are so construed that Congress may not, in its own discretion, and independently of the action or nonaction of the States, provide, by legislation of a direct character, for the security of rights created by the national Constitution; if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the Fourteenth Amendment to citizens residing in the several States rests primarily, not on the nation, but on the States; if it be further adjudged that individuals and corpora tions, exercising public functions, or wielding power under public authority, may, without liability to direct primary legislation on the part of Congress, make the race of citizens the ground for denying them that equality of civil rights which the Constitution ordains as a principle of republican citizenship; then, not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law, when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhestitatingly accorded to slavery and the rights of the master . . . Today, it is the colored race which is denied, by corporations and individuals wielding public authority rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced, accord ing to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings In practical subjection to another class, with power In the latter to dole out 108 to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised In this country upon the basis of discrimination, In respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree— for the due enforcement of which, by appropriate legislation, Congress has been Invested with express power— every one must bow, whatever may have been, or whatever now are, his Individual views as to the wisdom or policy, either of the recent changes In the funda mental law, or of the legislation which has been enacted to give them effect. . . . The Civil Rights Cases declared the Civil Rights Act of 1875 unconstitutional and made the Fourteenth Amendment applicable only to acts by the states, their political subdivisions, officers, agents, and instrumen talities acting on behalf of the states. As Justice Harlan pointed out, the failure by the majority to include "individuals and corporations, exercising public functions or yielding power under public authority ..." seriously restricted the scope and applicability of the Fourteenth Amendment and failed to give force and effect to the intention of Congress which enacted the Amendment. The decision particularly affected the rights of Negroes to enjoy, without hindrance or discrimination, public accom modations, inns, public conveyances, theatres, restaurants and all of those other related publicly used places for personal enjoyment. 109 Plessy v. Ferguson (163 U.S. 537 £1896]) The Slaughterhouse Cases and the Civil Rights Cases, while not directly concerned with the specific Issue of segregation In our public schools, nevertheless constituted the foundation and contained the rationali zations utilized by the Supreme Court to justify its deci sion in Plessy v. Ferguson. Since 1896 all legal segregation in the United States has been predicated upon the separate-but-equal doctrine enunciated in that decision. It became the basis and justification for segregating Negroes in almost every area of American life. Any lawyer arguing a "segregation" case had to consider Plessy. As will be noted in the following chapters, the attorneys who pleaded the School Segregation Cases formulated their strategy and tactics with a view to dissecting, distinguishing, and circum scribing this decision. In the alternative they sought to meet the case "head-on" and to persuade the Court that Plessy should be once and for all overruled. Segregation in the public schools was not in issue in Plessy, and was not directly or indirectly a part of the fact situation which gave rise to the case. Yet Justice Brown, who wrote the majority opinion, dwelled at great length on the question of school segregation. Judge Edward F. Waite wrote that is seemed strange to many lawyers that 110 the reference by Justice Brown to the public schools, although only a part of the Court’s argument for the reasonableness of segregation as a police measure, has been accepted In later cases as making Plessy v. Ferguson an authoritative precedent for the "separate but equal" doctrine in litigation involving public schools as well as transportation in public convey ances . o Homer Plessy was arrested and charged with the violation of a Louisiana Statute which provided equal butf separate accomodations on railroad trains. Plessy, one- eighth Negro and seven-eighths white, being a passenger between two stations in Louisiana, insisted "upon going into a coach used by the race to which he did not be long. ..." and refused to move. A policeman was called and he was arrested. Plessy thereafter brought a writ of prohibition in the Louisiana Supreme Court to prohibit the District Court Judge Ferguson, from proceeding with the trial of the criminal charges on the grounds that the Louisiana Statute conflicted with the Thirteenth and Four teenth Amendments of the Constitution of the United States. When the Louisiana Supreme Court rejected his petition, Plessy appealed to the United States Supreme Court. Justice Brown quickly dismissed the argument based on the Thirteenth Amendment: f T Edward F. Waite, "Race Segregation in the Public Schools: Jim Crow at the Judgment Seat," 38 Minnesota Law Review 612, 6Ik (1951 *). Ill A statute which implies merely a legal distinction between white and colored races— a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color— has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. In his analysis of the Fourteenth Amendment, Justice Brown clearly and unequivocably differentiated between the effect of the Fourteenth Amendment on "social" and "political" rights. Through the nicety of this cal culated categorization, the Supreme Court relegated into limbo innumerable rights allegedly given to the Negro after the Civil War. 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 on color, or to enforce social, as distin guished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separa tion 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. By distinguishing between social and political rights (which are determined by the legislatures of the states ("in the exercise of their police power,") states were, in effect, given carte blanche to deal with certain civil rights of Negroes as they saw fit without the coercive or temporizing influence of the Federal Government. 112 The most common Instances, said the Court, wherein state legislatures may enact laws segregating the races 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 the courts of States where the political rights of the colored race have been longest and most earn estly enforced. One of the earliest of these cases is that of Roberts v. City of Boston. 5 Cush. 198 (1849) in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their atten dance upon the other schools. "The great principle," said Chief Justice Shaw, p. 206," advanced by the learned and eloquent advocate for the plaintiff is, that by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition are equal before the law. . . . But, when this great principle comes to be applied to the actual and various con ditions of persons in society, it will ndbwarrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security." It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors. . . . Certainly the Court indulged in some legal gymnastics when it used a per-Civil War state decision (Roberts, 1849) which upheld segregated schools as persuasive authority for the Supreme Court's interpretation of the equal protection clause of the Fourteenth Amendment upholding racial 113 segregation In Intrastate transportation.7 Counsel for Plessy argued that the Louisiana law, if affirmed, could require the separation of persons by reason of the color of their hair, or of aliens, or of persons belonging to particular nationalities, or require white men's houses to be painted white and those of Negroes to be painted black. The reply of the Court was that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. In determining the question of reasonableness it [State of Louisiana] is at liberty to act with reference to established usages, customs and traditions of the people, and with a view to the promotion of their com fort, and the preservation of the public peace and good order . . . Although our Constitution is allegedly color-blind, the majority of the Court was not. In the next to the last paragraph of the decision, Justice Brown said: Legislation is powerless to eradicate racial in stincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially. the Constitution of the United States cannot put them upon the same plane. (Italics mine.} ^See Glendon A. Schubert, Constitutional Politics (.New York: Holt, Rinehart and Winston, Inc., 19&0), p. ^6l. 114 Summarizing the majority opinion In one sentence, It can be said that this Court held that the question of racial segregation In our public schools Is "social" rather than "political" and that being "social," it rightfully and constitutionally comes within exercise of the police powers of the states in the interest of the public good, ergo, the Fourteenth Amendment is not applicable. An angry and eloquent Justice Harlan took vigorous exception to the majority opinion. The Thirteenth Amend ment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disa bilities that constitute badges of slavery or servitude. The relationship of the function of law in a democracy as applied to the races has never been more succinctly stated: The white race deems itself to be the dominant race in this country. . . . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Consti tution is color-blind, and neither knows nor toler ates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent 115 for a State to regulate the enjoyment of citizens of their civil rights solely upon the basis of race. Justice Harlan’s words were so prophetic and so clearly described the civil rights Issues Involved In today’s racial struggle In the United States, that this writer was Impelled to quote the Justice at length. Justice Harlan strongly attacked the authorities used by Justice Brown to Justify the majority decision. Some of the more important state court decisions used by the majority were wholly inapplicable because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many local ities, was dominated by the institution of slavery; when it would not have been safe to do Justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions can not be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing there, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law. "In my opinion," said Justice Harlan, referring to the unreasonableness of the majority decision rationalizing and Justifying the exercise of "police powers" by the State of Louisiana, . . . the Judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. . . . The present decision, it may well be apprehended, 116 will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactment, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respec tively reside, and whose privileges and immunities as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. The sure guarantee of the peace and security of each race is the clear, distinct, unconditional re cognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pre tence of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality can not exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when travelling in a passenger coach or on a public highway than when members of the same races sit by each other in a street car or in the Jury box, or stand or sit with each other in a political assembly, 117 or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exer cise the high privilege of voting. The arbitrary separation of citizens, on the basis of race, while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and equality before the law established by the Constitu tion. It cannot be Justified upon any legal grounds. . . . We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law, which, practically, puts the brand of servitude and degra dation upon a large class of our fellow-citizens« our equals before the lawT The thin disguise of "equal" accomodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done. I am of opinion that the statute of Louisiana is incon sistent with personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institu tion tolerated by law would, it is true, have disap peared from our country, but this would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community called the People of the United States, for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solumn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. 118 For the reasons stated, I am constrained to withhold my assent from the opinion and Judgment of the majority. (Italics mine.) Cummlng v. Richmond County Board of Education (175 U.S. 528 L1899]) As Chief Justice Warren observed in Brown v. Board of Education, the Cummlng case involved the separate-but- equal doctrine but did not challenge its validity. Mr. Cummlng and ether Negroes complained that they were residents, property owners, taxpayers of Richmond County, and parents of children of school age lawfully entitled to the full benefit of any system of high schools organized or maintained by the Board; that up to the time of the said tax levy and for many years continuously prior thereto, the Board maintained a system of high schools . . . in which the colored school population had the same educational advantages as the white school population, but on July 10, 1897, it withdrew from and denied to the colored school population any participation in the educational facilities of a high school system in the county and had voted to continue to deny to that population any admission to or participation in such educational facilities; and that at the time of such withdrawal and denial the petitioners respectively had children attending the colored high school then existing, but who were now debarred from participa tion in the benefits of public high school education though petitioners were being taxed therefor. They averred that the action of the Board of Education was a denial of the equal protection of the laws secured by the Constitution of the United States, and that it was inequitable, illegal and unconsti tutional for the Board to levy upon or for the tax collector to collect from them any tax for the educa tional purposes of the county, from the benefits of which the petitioners in the persons of their children of school age were excluded and debarred. The lower Georgia court held for Cumming and an 119 order was entered restraining the Board from using "any funds or property now in or hereafter coming into its hands for educational purposes in said county for the support, maintenance or opera tion of any white high school in said county until said Board shall provide or establish equal faci lities in high school education as are now maintained by them for white children for such colored children of high school grade in said county as may desire a high school education or until the further order of the court." In substance the order enjoined the opening of the white high schools until colored youngsters were provided with a school to obtain a high school education. The Board admitted that it did suspend the colored high school "for the reason that in its judgment the interest and conven ience of the people did not require it, and that it caused to be established in its stead three primary schools for colored children ..." and could not afford both the primary schools and the high school. Although this might seem to be a case perfectly suited to challenge the validity of Plessy or at least to come within the doctrine, legal technicalities foiled Cumming on both counts. His counsel could and should have attacked segregation itself on the basis that white and colored children could share the high school facilities which were then available without further expenditures and thus make available a high school education to ALL youngsters regardless of race. Counsel made these arguments during his oral presentation but failed to plead the issue. The Court, therefore, said that "we need not consider that 120 question In this case. No such Issue was made In the pleadings . . . We must dispose of the case as It Is pre sented by the record." A poor record and a prayer for the wrong relief defeated Cummlng on the other count. The substantial relief asked is an Injunction that would either impair the efficiency of the high school provided for white children or compel the Board to close it. But if that were done, the result would only be to take from white children educational privileges enjoyed by them, without giving to colored children additional opportunities for the education furnished in high schools. . . . If, in some appropriate proceeding instituted directly for that purpose, the plaintiffs had sought to compel the Board of Education, out of the funds in its hands or under its control, to esta blish and maintain a high school for colored chil dren, and if it appeared that the Board’s refusal to maintain such a school was in fact an abuse of its discretion and in hostility to the colored population hecause of their race, different questions might have arisen in the state court. By such statements the Court seemed to establish a "test" of what constituted a violation of the equal protection clause of the Fourteenth Amendment by a state regarding public education: Did the defendant school board proceed in bad faith, abuse its discretion or act with hostility toward the colored race? The Court affirmed the action by the Georgia Supreme Court upholding the Board, under the circumstances disclosed, and added the following: . . . the education of the people in schools main tained 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 121 of a clear and unmistakeable disregard of rights secured by the supreme law of the land. (Italics mine.) By all standards, the test created in Cummlng seemed even worse than separate-but-equal. Under the Plessy test we can assume that there will be separate schools but at least equal or substantially so. Under Cummlng. seeimingly as long as everyone gets a full and courteous hearing (as they did in this case), and the school district in good faith proves that it does not have enough money for Negro schools (although it was maintaining white schools) then we satisfy the requirements and have not violated any portion of the Fourteenth Amendment. Unbelievably, Justice Harlan, the great dissenter, wrote the majority opinion. It is difficult to reconcile this decision with his ringing dissents where he so eloquently defended the rights of all Americans, black or white. Justice Harlan’s obvious dissatisfaction with the pleadings presented by counsel for the plaintiffs would hardly justify the decision written by him in Cummlng. John P. Roche quoted Justice Harlan as saying in 1910: . . . the Courts have rarely, if ever, felt them selves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts . . . that violated natural Justice or were hostile to the fundamental principles devised for the protection of the essential rights of property.® Q John P. Roche, "Judicial Self-Restraint," American Political Science Review, (1955), 762-772. (Italics mine.) 122 Gong Lum v. Rice (275 U.S. 78T1927]) In 1908, Just nine years after the Cummlng case, the Supreme Court upheld enforced segregation In a private school.^ The Court affirmed the Supreme Court of Kentucky which had held constitutional a Kentucky statute, which decreed that Negroes and whites could not be taught to gether In private schools unless the buildings were twenty- five miles apart. The Court held that since the College was a corporation and since corporations were subject to all manner of state regulation, then Kentucky could regu late the College. By the use of this kind of reasoning, the Court indirectly said that enforced segregation was not unconstitutional. In 1927 G'ohg Lum came to the United States Supreme Court. In this case, as in Cummlng, the validity of the Pie’ s s.v separate-but-equal doctrine was not challenged. Counsel for plaintiff admitted that color may reasonably be used as a basis for classification only in so far as it indicates a particular race. Race may reasonably be used as a basis. "Colored" describes only one race, and that is the negro. By this admission any possible attack on Plessy would be without meaning and fruitless.. Gong Lum, a resident of Mississippi, brought an action on behalf of Martha Lum, his nine year old daughter. ^Berea College v. Kentucky. 211 U.S. 45 (1908). 123 He alleged that Martha was not a "member of the colored race nor Is she of mixed blood, but that she is pure Chinese; ..." that Martha appeared as a pupil at a white school and at noon recess she was sent home and was not allowed to return. Gong Lum sought an order of the Court forcing school authorities to allow his daughter the right to attend the public school in her district. The defendant school district demurred on the basis that the complaint itself admitted that Martha was a member of the Mongolian or yellow race and, therefore, could not attend the white school. This position was Justified under §207 of the State Constitution of Missi ssippi of 1890, which provided: "Separate schools shall be maintained for children of the white and colored races." The Mississippi Supreme Court overruled a lower court ruling favorable to Gong Lum and held that the above Constitutional provision divided the educable children into those of pure white or Caucasion race, on the one hand, and the brown, yellow and black races, on the other, and therefore that Martha Lum of the Mongolian or yellow race could not insist on being classed with the whites . . . The United States Supreme Court decided that since there was a colored school available to Martha, though not in her immediate area, she was not denied the equal protec tion of the laws. The Court then cited Cumming and Justice Harlan for its conclusion that "the right and power of the state to regulate the method of providing for the education 124 of its youth at public expense is clear.1 1 Quoting Plessy and Roberts v. City of Boston the Court concluded: "The decision is within the discretion of the state in regulat ing its public schools and does not conflict with the Four teenth Amendment." Since Gong Lum failed to directly attack segrega tion per se in public schools, it can hardly be called precedent for the issue here involved. As a Chinese, Gong Lum was of the opinion that his daughter could go to a white school and should not be forced to attend a colored school. The unfortunate effect of the case was to more firmly imbed into our law the rights of states to segregate public schools racially. Missouri ex rel. Gaines v. Canada (.305 U.S. 337 [1938]; As was stated above, it usually takes many years to chip away at, distinguish, de-limit, and finally defeat a legal doctrine established by case law. Greenberg and Hill, both associated with the NAACP, indicated that the campaign to desegregate public schools was carefully planned.10 There was the necessity for the development of strategy and tactics: (1) Should a large number of taxpayers' suits be filed to win equality in the l0Jack Greenberg and Herbert Hill, Citizens Guide to Desegregation, pp. 57-59. 125 In the elementary schools? Should the emphasis In these suits remain within the realm of separate-but-equal or should segregation Itself be attacked? Since the Plessy doctrine was so firmly entrenched In American law, why not try to get the desired result by operating within the doc trine, seek equality in innumerable elementary districts, and eventually create an economic burden so severe that most states would have to give up segregation? (2) Or, in the alternative, should the program commence with suits against graduate and professional schools? The second approach promised several advantages: (a) Inequality at this level could be proved easily. The Southern states provided virtually no graduate or professional schools for Negroes. (b) The duplication of higher educational facil ities would be phenomenally expensive for the states; this would lead to economic pressure to ward desegregation. The high cost of prejudice would be particularly oppressive in view of the small enrollments at graduate schools. An extreme case, which never had to be brought, would have been an attack on segregation at a graduate school of nuclear physics— requiring a "separate-but-equal" cyclotron. (c) Judges would be more apt to reach favorable decisions in such cases than in cases involving lower schools. Distracting social problems, real or fancied, would be minimal at the graduate level; segregation has often been justified as a bar to violence, but highly educated university students would be hardly likely to riot upon desegregation. Furthermore, although higher education involves relatively few people, victories at this level could have enormous consequences for legal theory. (d) Judges understand legal education. 126 (e) Whatever the outcome— whether the states admitted Negroes to white graduate schools or established new schools for them— more Negro leaders would be educated than ever before.1 In accordance with the above strategy, the attack on Plessy and segregation In our public Institutions began with suits against graduate and professional schools. Tactics called for a special emphasis on law schools. On the basis of his own personal experience, each justice could bring to bear an off-the-record criterion of the implications of "equality" in judging whether a substitute for a state’s univ ersity law school denied a qualified Negro resident and applicant the equal protection of the laws.12 The strategy and tactics were decided. On October 10, 1938 the Supreme Court accepted jurisdiction in the important case of Missouri ex rel. Gaines v. Canada. Missouri ex rel. Gaines v. Canada C305 U.S. 337 L1938J) In August, 1935, Lloyd Gaines, a Negro, was gradu ated from Lincoln University maintained by the State of Missouri for the higher education of Negroes. Lincoln had no law school. Lloyd applied to the University of Missouri, School of Law and was refused admittance solely because he was a Negro. The University of Missouri was a 1:LIbid., pp. 58-59. 12Schubert, op. cit. . p. M89. 127 state-supported school and had a law school for whites only. The defendants argued that It was the right of Lincoln University under state law to establish a law school there whenever In their opinion this would be neces sary and practicable. Pending such development, Lincoln officials were authorized to arrange for the legal educa tion of Missouri Negroes by paying the tuition charges at law schools in adjacent states where Negroes are accepted and where the training is equal to that obtainable at the Missouri State University. Chief Justice Hughes, who wrote the majority opin ion, found the State of Missouri's solicitude for the high er education of Negroes commendable. But, said the Court, the fact remains that instruction in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the State, and that the State excludes negroes from the advantages of the law school it has established at the University of Missouri. It Is manifest that this discrimination, if not relieved by the provisions we shall presently dis cuss, would constitute a denial of equal protection. That was the conclusion of the Court of Appeals of Maryland In circumstances substantially similar in that aspect. University of Maryland v. Murray, 169 Md. 478j 182 A. 590. It there appeared that the State of Maryland had "undertaken the function of education in the law" but had "omitted students of one race from the only adequate provision made for it, and omitted them solely because of their color;" that if those students were to be offered "equal treatment in the performance of the function, they must at present, be admitted to the one school provided." Id., p. 489. A provision for scholar ships to enable negroes to attend colleges outside the State mainly for the purposes of professional 128 studies, was found to be Inadequate (Id., pp. 485, 486) and the question, "whether with aid" in any amount it is sufficient to send the negroes outside the State for legal education, the Court of Appeals found it unnecessary to discuss. The Court summarily dismissed defendants’ arguments that since the State of Missouri under Section 9622 pro vided full tuition to excellent "out-of-state" law schools, and, additionally, since the situation is "temporary," there was no denial of equal protection of the laws to Lloyd Gaines. As to the argument that Lincoln would in time develop its own law school, the Court noted that "it cannot be said that a mere declaration of purpose, still unfulfilled, is enough." The basic consideration, said the Court, is not what educational opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privi leges which the laws give to the separated groups with in the State. The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the state upon the basis of an equality of right. . . . The white resident [of Missouri] is afforded legal education within the State; the negro resident having the same qualification is refused it there and must go outside the State to obtain it. That is a de nial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of 129 tuition fees in another State does not remove the dis crimination. . . . We find it impossible to conclude that what otherwise would be an unconstitutional discrimination, with respect to the legal right of the enjoyment of opportunities within the State, can be Justified by requiring resort to opportunities elsewhere. That resort may mitigate the inconvenience of the dis crimination but cannot serve to validate it. (Italics mine.) Citing the case of McCabe v. Atchlnson, T. & S.F. Ry. Co. (235 U.S. 151, 161-162), the Court stated that the right involved in the Gaines case was a personal one and was not in any degree made dependent on the fact that there is "but a limited demand in Missouri for the legal educa tion of negroes ..." (Gaines, p. 350). . . . It was as an Individual that he [Gaines] was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity. Missouri subsequently went to the great expense of setting up a separate and, presumably, a substantially equal law school. Lloyd Gaines mysteriously disappeared shortly after the decision and has never been heard from since that time. Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 631 [1948]) In 19*18, ten years after the Gaines case, the Supreme Court decided the Sipuel case. Miss Ada Sipuel, a 130 young colored woman, concededly qualified to receive the professional legal education offered by the State, applied for admission to the School of Law of the University of Oklahoma, the only institution for legal education sup ported and maintained by the taxpayers of the State of Okla homa. In a brief, one page Per Curiam decision the Court said: The petitioner is entitled to secure legal education afforded by a state institution. To this time, it has been denied her although during the same period many white applicants have been afforded legal edu cation by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group. With no further comment the Court cited the Gaines case. Two years later, on June 5, 1950, the Supreme Court announced its decisions in two cases which advanced the cause of the Negro in education with dramatic impact. These cases constituted giant strides away from the "segre gating" effect of Plessy v. Ferguson and were used as two of the legal pillars upon which to ultimately base and justify the Court's decision in Brown v. Board of Education. Sweatt v. Painter (339 U. S.“329 [1950]) As in the Gaines and Sipuel cases, Sweatt was in volved with the admission of a Negro to a law school. This time it was the University of Texas Law School. Victories by the Negroes in Gaines and Sipuel engendered great inter est in the Sweatt case. As previously noted, the cost of building and maintaining equal or substantially equal professional schools was prohibitive. The alternative, of course, was desegregation. States enforcing racial segre gation wanted no part of either alternative. In order to meet the requirements of Pless.v v. Ferguson, the states attempted to set up make-shift professional schools with inferior and much less costly facilities. The importance of the Sweatt case was readily apparent from the fact that amici curiae briefs were filed on behalf of Texas by the Attorneys General of Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Virginia. On behalf of the petitioner, Heman Marion Sweatt, a Negro, amici curiae briefs were filed by the Solicitor General of the United States (who argued that Pless.v should be overruled), American Federation of Teachers, Committee of Law Teachers against Segregation in Legal Education, American Veterans, Inc., and the American Jewish Committee. Chief Justice Vinson wrote the opinions in both the Sweatt case and McLaurln v. Oklahoma which was decided on the same day. Without overruling Plessy. the Court went beyond Gaines and Sipuel and created new legal doctrine. Segregation in professional and graduate schools was in effect declared unconstitutional. Heman Sweatt filed an application for admission to the University of Texas Law School for the 19^6 term. His application was rejected solely because he was a Negro. Upon his filing an action against the University and a trial having been held, it was decided that the action of the State in denying Sweatt the opportunity to gain a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The State Court continued the matter for six months, during which time Texas, at consid erable cost, proceeded to build and staff a law school for Negroes to be opened in February, 19^7. Sweatt refused to attend the school. After the second trial of this matter in the State Court (which held that the new Negro law school was substantially equal), the State Court found against Sweatt. Thereafter, prior to the argument and decision before the Supreme Court of the United States, Texas had opened a new law school at the Texas University for Negroes. That law school was in the process of gaining full accreditation; had a faculty of five full-time pro fessors, a student body of 23, a library of some 16,500 volumes serviced by a full-time staff; a practice court, a legal aid association and one alumnus who had become a member of the Texas Bar. But this "substantial equality" was not enough. The Supreme Court of the United States declared: Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational 133 opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, avail ability of law review and similar activities, the University of Texas Law School is superior. The Chief Justice could have stopped at that point. He noted sufficient differences between the two law schools to support the position that they were not substantially or actually equal. These differences were enough to have brought Sweatt directly under the separate-but-equal doctrine. But by the addition of the next two paragraphs of the opinion, the Supreme Court created certain require ments for the equality of separate law schools, which in effect and practice, made the separate, segregated law school an unattainable and unconstitutional objective. What is more important, the University of Texas Law School possesses to a far greater degree those quali ties which are Incapable of objective measurement but which made for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close. Moreover, although the law is a highly learned profes sion, we are well aware that it is an intensely practi cal one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law Interacts. Few students and no one who has practic ed 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. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, 132 * Judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and signifi cant segment of society excluded we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School. (Italics mine.) McLaurin v. Oklahoma State Regents for Higher Education (339 U7s. 6 37 H 950J) For the first time the attack by Negro plaintiffs swung to the graduate schools. G. W. McLaurin, a Negro citizen of Oklahoma, who possessed a Master’s Degree, applied for admission to the University of Oklahoma in order to pursue studies and courses leading to a Doctorate in Education. His application was denied solely because of his race. After suit and trial, a three-judge United States District Court held that the State had a Constitutional duty to provide him [McLaurin] with the education he sought as soon as it provided that education for applicants of any other group. It further held that to the extent the Okla homa statutes denied him admission they were unconsti tutional and void. Following this decision, the Oklahoma legislature amended its statutes to permit the admission of Negroes to institutions of higher learning which had been attended only by white students, in cases where such institutions offered courses not available in Negro schools. The amend ment provided, however, that in such cases,the program of 135 instruction shall be given at such colleges or institutions upon a segregated basis. In apparent conformity with the amendment, McLaurin's admission was made subject to such rules and regulations as to segregation "as the President of the University shall consider to afford to Mr. G. W. McLaurin substantially equal educational opportunities. ..." Under rules promulgated by the President of the University, McLaurin was required to sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a desig nated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room; and to sit at a designated table and to eat at a different time from the other students in the school cafeteria. The Federal District Court denied McLaurin's motion to remove these conditions, and the appeal to the United States Supreme Court followed. In the interval between the decision of the lower court and the hearing in the Supreme Court, the treatment afforded McLaurin was altered. For some time, the section of the classroom in which appellant [McLaurin] sat was surrounded by a rail on which there was a sign stating, "Reserved for Colored," but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor; and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table. It was argued that the separations Imposed by the State in this case were merely nominal. McLaurin used the 136 same classroom, library, and cafeteria as students of other races; there was no indication that the seats to which he was' assigned in these rooms had any disadvantage of loca tion. He could wait in line in the cafeteria and there stand and talk with his fellow students, but while he ate he would have to remain apart. The Court strongly dis agreed that the separations imposed by the State were "merely nominal:" But they [restrictions] signify that the State in administering the facilities it afford for profes sional and graduate study, set McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate in struction. 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, 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 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. It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference-a constitutional difference-between restrictions imposed by the state which prohibits the intellectual comming ling of students, and the refusal of individuals to commingle where the state presents no bar. Shelley v. Kraemer, 334 U. S. 1, 13-14 (1948). The removal of the state restrictions will not necessarily abate indivi dual and group predilections, prejudices and choices. But at the very least, the state will not be depriving 137 appellant of the opportunity to secure acceptance by his fellow students on his own merits. We conclude that the conditons under which this appellant Is required to receive his education deprive him of his personal and present right to equal protec tion of the laws. See Sweatt v. Painter, ante, p. 629. We hold that under these circumstances the Fourteenth Amendment precludes differences in treat ment by the state based upon race. 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. In general, it can be concluded that with its decisions in Sweatt v. Painter and McLaurin v. Oklahoma, the Supreme Court decisively shifted its position away from the separate-but-equal doctrine in actual practice without actually overruling the case of Plessy v. Ferguson. Regardless of theory, the legal effect was to make segre gation in state supported graduate and professional schools on the basis of race unconstitutional. Foreshadowing Brown v. Board of Education, counsel in Sweatt and McLaurin produced briefs for the Court's examination quoting from extensive expert testimony pro duced during trials in the lower courts. That expert testimony demonstrated the detrimental personal and pro fessional effects of segregation on the Negro student in graduate and professional schools. The Chief Justice chose to disregard this evidence. Referring to this "excellent research," Chief Justice Vinson said; Because of the traditional reluctance to extend con stitutional interpretations to situations or facts which are not before the Court, much of the excellent 138 research and detailed argument presented In these cases Is unnecessary to their disposition.1’ The Court stated Its position on the Plessy doctrine in these terms: We cannot, therefore, agree with respondents [State] that the doctrine of Plessy v. Ferguson requires affirmance of the judgment below. Nor need we reach petitioner's [Sweatt] contention that Plessy v. Ferguson should be reexamined in the light of con temporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial seg regation . The next major development in the legal history of the struggle to desegregate our public educational facili ties came with the five cases which constitute the School Segregation Cases. Long trials, thousands of pages of evidence, extensive briefs, days of oral argument finally resulted in a direct attack on segregation itself. For the Negro plaintiffs, both the minor children and their parents and their counsel, it represented a hard, tedious, sometimes lonely and sometimes dangerous road. Counsel and their Negro clients were tenacious and courageous. From the time of Dred Scott v. Sandford (1856) to Brown v. Board of Education (195*0, many changes had taken place in our society— changes in our economic, political, and social institutions; change in philosophic views; change in the relationship between the Negro and Caucasian races; and, change in the men who are the judges of our ^ Sweatt v. Painter, op. cit. . p. 631. 139 courts. With these changes came modifications of legal concepts and legal relations. "Lighthouse" cases, prece dent decisions— were modified or overruled and new prece dents arose in their stead. The new Judges, raised in different sociological and philosophic environs thought and felt differently from those justices who dealt with Negroes as "personal property," animate or inanimate. In the totality of time, the 98 years between Dred Scott and Brown is indeed a very short time. But for the Negroes who have been denied their rights, the changes came slowly- -interminably. Those who argued the School Segregation Cases be fore the Justices of the United States Supreme Court had to do so within the context of the precedents established by many of the cases discussed and analyzed in this chapter. Legal-factual Perspective on the School Segregation Cases of 1952 and 1953 The five cases argued before the Supreme Court in 1952 and 1953 are usually referred to collectively as Brown v. Board of Education. Actually the Court wrote two separate opinions: Brown v. Board of Education represent ing all of the state cases and Bolling v. Sharpe. which was.the federal District of Columbia case. All of the cases were apparently selected with care and grouped to gether by the Court for two reasons: (1) the central legal 140 Issue common to all was whether racial segregation In public elementary and high schools was a violation of the Constitution of the United States; and (2) the factual and legal aspects of each case was sufficiently different as to test the basic issue from several points of view. The differences between the cases are summarized as follows: Brown v. Board of Education (State of Kansas): (1) Both counsel stipulated that the physical facilities in the public schools of Kansas were equal or substantially equal for the white and Negro children. Since the facilities were equal, the Plessy doctrine was squarely challenged. (2) There was not a uniform state wide segregation policy. Instead, segregation in the elementary schools was optional in all cities with a popu lation exceeding 15,000. (3) Before the decision (Brown v. Board of Education)» the School Board of Topeka, Kansas had voluntarily voted to desegregate its public schools. (4) Evidence in the lower court established that Negro children were mentally and psychologically injured by segregation. Briggs v. Elliot (State of South Carolina): (1) When suit was filed in this case, the physical facilities of the Negro schools were admitted to be unequal and inferior. Despite this fact the lower court refused to 1H1 grant an injunction to end segregation and suggested the parties return within six months to determine what progress was being made to equalize school facilities. The school board reported back to the Court as ordered and the Court dismissed the injunction because of the progress made in equalizing the schools for Negro and white children. (2) The Constitution and statutes of South Carolina made segregated education mandatory. (3) The school board failed to rebut the plaintiffs' evidence that Negro children were injured on account of school segregation. Davis v. County School Board (State of Virginia): (1) The physical facilities of the Negro schools' were found by the lower court to be unequal, but were rapidly being equalized. (2) There was evidence on both sides regarding the effect of segregation on the Negro children and the lower court found that the evidence "balanced out" and refused to find that the Negro children were injured on account of segregation. (3) The Consti tution and statutes of Virginia prohibited desegregation of schools. (4) The Court refused to decree desegregation. Gebhart v. Belton (State of Delaware): (1) The Negro school facilities were found to be unequal by the lower court. (2) This was the only Court which ordered the immediate desegregation of the Delaware 142 schools on the basis of the Plessy doctrine. (3) At the time the first arguments took place before the Supreme Court in 1952, the school boards had already begun to desegregate various Delaware schools. Bolling v. Sharpe (District of Columbia): (1) There was no trial in this case. This matter came before the Supreme Court on a successful motion by the District of Columbia to dismiss plaintiffs1 complaint in the lower court. (2) There were no findings whatsoever regarding equality or inequality of physical facilities or whether there was injury to the Negro school children on account of segregation. (3) There were no complications of state-federal relationships. (4) There were no statutes either permitting or prohibiting segregation in the District of Columbia. (5) Of necessity, this case was appealed on the basis of the violation of the due process clause of the Fifth Amendment, contrary to the states1 cases which were appealed on the basis of a violation of the equal protection clause of the Fourteenth Amendment.^ 1/1 Appendix D supplements the above summary. CHAPTER V THE ORAL ARGUMENTS, 1952 Brown v. Board of Education1 On Tuesday, December 9th, at 1:35 P.M., oral argu ment began before the Justices of the Supreme Court of the United States by counsel for the litigants in the School Segregation Cases. Present for the arguments were the Chief Justice, Honorable Fred M. Vinson and Associate Justices Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark, and Minton. Arguing for the appellant school children: Robert L. Carter, and for the appellee Board of Education of Topeka, Kansas, Paul E. Wilson, Attorney General of the State of Kansas. THE CHIEF JUSTICE: Case No. 8, Oliver Brown and others versus the Board of Education of Topeka, Shawnee County, Kansas. THE CLERK: Counsel are present. THE CHIEF JUSTICE: Mr. Carter. Cp. 2) transcript of Oral Argument, Brown v. Board of Education, December 9, 1952. Unless otherwise indicated, all quotations in this section are from the transcript. 1^3 ikn ARGUMENT ON BEHALF OF APPELLANTS By Robert L. Carter Shortly after he reached the rostrum and began his argument, It became Immediately and obviously apparent that the tactics and strategy of counsel for the Negro school children called for an uncompromising stand against segre gation itself. This stand was not merely an attempt to ob tain ’ 'equal" facilities for Negro children. It was a blunt attack against segregating children in elementary and high schools on a racial basis. Simply stated, he mentioned that separate schools cannot be equal. MR. CARTER: It is the gravamen of our complaint— it was the gravamen of our complaint below, and it is the gravamen of our appeal here— that the appellees have deprived— we have been deprived of the equal protection of the laws where the statute requires appellants to attend public elementary schools on a segregated basis, because the act of separation and the act of segrega tion in and of itself denied them equal educational opportunities which the Fourteenth Amendment secures, (p. 4) As further evidence that this was to be a direct and fron tal assault on segregation per se, Carter alleged that there was no material difference between the four schools maintained for Negroes, and the eighteen schools maintained for white children with respect to physical facilities, the educational qualifications of teachers, and the courses of study prescribed. Here we abandon any claim, in pressing our attack on the unconstitutionality of this statute— we abandon any claim— of any constitutional inequality which comes from anything other than the act of segregation itself. In short the sole basis for our appeal here on the constitutionality of the statute of Kansas is that it empowers the maintenance and operation of racially segregated schools, and under that basis we say, on 145 the basis of the fact that the schools are segregated, that Negro children are denied equal protection of the laws, and they cannot secure equality In educational opportunity. (pp. 6-7) This argument represented a bold and daring gambit by Carter. It allowed him no escape should the Court have decided to uphold the Plessy separate-but-equal doctrine. He unequlvocably declared that there was no question but that the white and Negro schools In Topeka were equal in all respects except that they were segregated on the basis or racial origin. By this move the Court was challenged with these alternatives: strike down segregation in the public schools of Topeka because segregation In and of it self is "unequal" and therefore unconstitutional; or main tain the status quo and support the Kansas law which allowed schools to be segregated on the legally accepted basis of equal facilities for white and Negro children. While Carter's strong, direct, unqualified and somewhat inflexible legal position reduced his area of maneuverabil ity when questioned by the Court later in the argument, it nevertheless enabled him to fulfill his part of the strategy of the counsel for the appellants. "Since I was supposed to take a rigid and unshakeable position," he stated in a letter, "I persisted."^ In another part of the same letter he said: 2Letter to writer July 20, 1965. 1M6 "My phase of the oral argument was relatively simple. My role was to present the basic legal argument for the petitioners that segregation per se was unconstitu tional Including the argument that Plessy v. Ferguson had never been applied by the court In tne field of education."’ After some ten years of retrospection, Mr. Carter would not have changed his approach because "the purpose of my argu ment was to present petitioners fundamental legal position, i x and the strategy worked fairly well." The lower court found that racial segregation created educational inequality in fact but concluded, as a matter of law, that the only type of educational inequal ity which was cognizable under the Constitution was an educational inequality which stems from material and physi cal factors. Absent any inequality on that level, the Court said: We are bound by Plessy v. Ferguson, and Gong Lum v. Rice to hold in appellees' favor, and upholding the constitutionality of that statute. (p. 7) Carter took issue with the opinion by arguing: ". . . that no state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens" (p. 7). He supported this thesis on two bases: first, that it is an unconstitutional classification within the meaning of the equal protection clause of the Fourteenth 3Ibid. 1 1 Ibid. 1^7 Amendment for public schools to be segregated on the basis of race or color.5 The portion of the Kansas State Statute, which Mr. Carter attacked as an unlawful and unconstitutional classi fication, empowered certain Kansas cities "to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas ..." (p. 10). Carter declared: With regard to the first basis of our attack on the Statute, Kansas has authorized, under certain conditions certain boards of education to divide its schools at the elementary school level for the purpose of giving them educational opportunities. ^"state stautes which make arbitrary or unreason able discrimination in classifying persons or things for the purpose of legislation are unconstitutional; but a classi fication based on reasonable grounds and operating on all within the same class is valid. The constitutional provi sions under which class legislation is prohibited apply only to actions by the state. The provision of the Fourteenth Amendment to the federal constitution declaring that no state shall make or enforce any law which shall abridge the privileges or im munities of citizens of the United States, etc., as well as provisions commonly found in state constitutions pro hibiting the enactments of laws granting any special or exclusive privileges, immunities, or franchises . . . render void all state statutes which make any unreasonable or arbitrary discrimination between different persons or classes of persons. In order to be valid a statutory classification must reasonably promote some proper object of public welfare or interest, must rest on real and substantial differences, having a natural, reasonable and substantial relation to the subject of the legislation, and must affect alike all per sons or things within a particular class, or similarly situated; ..." (16 Corpus Juris Secundum 1939 ed« 95^-56). 148 It Is our position that any legislative or govern mental classification must fall with an even hand on all persons similarly situated. This Court has long held that this is the law with respect to a lawful classification, and in order to assure that this even-handedness of the law in terms of classification exists, this Court has set standards which say that where the Legislature of a state seeks to make a classification or distinction among persons, that that classification and those distinctions must rest upon some differentiation fairly related to the object which the state seeks to regulate. Now, we say that the only basis for this division is race, and that under the decisions of this Court that no state can use race, and race alone, as a basis upon which to ground any legislative, any lawful con stitutional authority and, particularly this Court has indicated in a number of opinions that this is so because it is not felt that race is a reasonable basis upon which to ground acts; it is not a real differen tiation and it is not relevant and, in fact, this Court has indicated that race is arbitrary and an irrational standard, . . . (pp. 8-10). Summarizing his classification argument, Mr. Carter said: Now, without further belaboring our classification argument, our theory is that if the normal rules of classification, the equal protection doctrine of classi fication, apply to this case— and we say they should be applied— that this Statute is fatally defective, and that on this ground, and on this ground alone, the Statute should be struck down. As a second ground for the unconstitutionality of the Kansas Statute, Carter urged that it is impossible for Negro children to secure equal educational opportunities within the meaning of the equal protection clause of the Fourteenth Amendment under a segregated school situation. On page 245 of the record, the lower court, in Finding No. VIII, stated as follows: 149 Segregation of white or colored children in public schools has a detrimental effect upon the colored chil dren. 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 moti vation of a child to learn. Segregation with the sanc tion of law, therefore, has a tendency to retain [sic retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. (p. 11) It is apparent from Carter’s argument that consid erable and uncontroverted testimony came into the record supporting the thesis that segregation of white and Negro children in our public schools seriously affects Negro children psychologically and emotionally and thereby affects their ability to learn. It is our contention, our view, that when this Court was confronted with the question of whether McLaurin and Sweatt were afforded equal educational opportunities that it looked at the restrictions imposed to find out whether or not they in any way impaired the quality of education which was offered, and upon finding that the quality of education that had been offered under seg regated conditions, that this Court held in both instances that those racial restrictions could not stand. The Court below, based on this finding, starts its examination in the same way. It finds that the restric tions which the appellants complained of places them and other Negro children in the class at a disadvantage with respect to the quality of education which they would receive, and that as a result of these restric tions, Negro children are— the development of their minds, and the learning process is impaired and damaged. We take the position that where there exists educational inequality, in fact, that it necessarily follows that educational inequality in law is also present. (p. 12) The lower court had a difficult time. It seemed obvious that the.court desired to rule in favor of the Negro 150 children but felt constrained to remain within the confines of Plessy v, Ferguson and Gong Lum v. Rice. Apparently Carter had come to the same conclusion. "It is also clear from the court’s opinion that it was in a great deal of confusion and doubt and, perhaps, even in torture in reach ing these results" (p. 13). On page 243 of the record, the lower court stated: 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 and the same lack of due process if practiced in the lower grades. Cp. 13) Carter agreed that the rules of law applicable to the McLaurin and Sweatt cases applied and that no decisions of the United States Supreme Court required a contrary result. Therefore, he argued, the lower court erred in its final opinion wherein the Court declared that it considered it self bound by Plessy and Gong Lum. It is apparent that the lower court came to the conclusion that the only con cern of the Constitution with the questions of educational equality was that the physical facilities afforded to Negro children had to be equal. At this point in Carter's argument, Justice Reed indicated that he desired to know more about the effect of segregated education on the Negro child. 151 JUSTICE REED: Was there any evidence in the record to show the inability, the lesser ability of the child in the segregated schools? MR. CARTER: Yes, sir; there was a great deal of testi mony on the impact of racial distinctions and segrega tion, on the emotional and mental development of the child. Now, this is, in summary, finding eight of the court, a summarization of the evidence that we introduced on that. JUSTICE REED: And the findings go to the ability to learn or merely on the emotional reaction? MR. CARTER: The finding says that-*- JUSTICE REED: I know about the finding, but the evi dence? MR. CARTER: The evidence, yes,.sir. The evidence went to the fact that in the segregated school, because of these emotional impacts that segregation has, that it does impair the ability to learn; that you are not able to learn as well as you do If you were in a mixed school, and that further than that, you are barred from contact with members of the dominant group and, there fore, your total educational content is somewhat lower than it would be ordinarily. Cp. 1*0 Carter's statement "... you are barred from con tact with members of the dominant group . . ." demonstrated a skillful and astute handling of Justice Reed's question. Carter was trying to establish that the McLaurin case applied to Brown. Knowing that Chief Justice Vinson wrote the McLaurin decision and further that several members of the present court had helped decide McLaurin, Carter paraphrased a portion of that decision. Thus, he not only answered Justice Reed's question but subtly re-emphasized the applicability of McLaurin to the present case. As 152 previously noted, the ability and agility requisite to a deft handling of the court*s searching questions comes from a thorough preparation by counsel and a complete knowledge of the facts and legal precedent. Justice Burton then continued the questioning: JUSTICE BURTON: It is your position that there is a great deal more to the educational process even in the elementary school than what you read in the books? MR. CARTER: Yes, sir; that is precisely the point. JUSTICE BURTON: And it is on that basis which makes a real difference whether it is segregated or not? MR. CARTER: Yes, sir. We say that the question of your physical facilities is not enough. The Constitu tion does not, in terms of protecting, give equal pro tection of the laws with regard to equal educational opportunities, does not stop with the fact that you have equal physical facilities, but it covers the whole educational process. THE CHIEF JUSTICE: The findings in this case did not stop with equal facilities, did they? MR. CARTER: No, sir; the findings did not stop, but went beyond that. But, as I indicated, the court did not feel that it could go in the law beyond physical facilities. Of the two cases with the court below indicates have kept it from ruling as a matter of law in this case that educational, equal educational opportunities were not afforded, the first Is the Plessy v. Ferguson case. Cpp. 15-16) Here again Carter exhibited those qualities neces sary and important for an advocate before an appellant tribunal. Bearing in mind the limited time allotted to counsel, he must answer the questions of $he court courte ously, candidly, and as fully as possible consistent with 153 time. Further, he must not allow the court, if he can avoid it, to confine him to one area of his argument when he feels he has covered the material adequately. He must be able to maneuver into those additional areas which he has planned to cover. Consistent with competent advocacy, note that Carter diverted the questions and answers from the psycho logical effects of segregation of the Negro child to an analysis of the inapplicability of the Plessy case which obviously was pre-planned as the next portion of his argument. Carter argued that "Plessy v. Ferguson is not in point here;that it had nothing to do with educational opportunities whatsoever" (p. 17). He contended that regardless of the view of the Court below regarding the "reach" of the Plessy case, "this Court in the Sweatt case made it absolutely clear that Plessy v. Ferguson had nothing to do with the question of education" (p. 17). The Slpuel and Gaines cases noted in the Sweatt opinion seemed to support Carter's argument that these are the only cases "in this Court which control the issue of racial distinction in state-supported graduate and professional education." We think this was a pointed and deliberate omission in Plessy, and that the Court is saying that Plessy v. Ferguson certainly has nothing to do with the validity of racial distinctions In graduate and professional schools. 154 By the same logic, we say that since Plessy had nothing to do with the higher level of education, it certainly has nothing to do with equal educational opportunities in the elementary grades. For that reason we think that Plessy need not be considered; that it has nothing to do with this case, and it is out of the case entirely. (p. 17) Carter then turned his attention to the Gong Lum decision. He correctly argued that Martha Lum did not contest the state's power to enforce racial classification as a matter of fact. In that case, counsel admitted that color may "reasonably be used as a basis for classification only insofar as it indicates a particular race. Race may be reasonably used as a basis. 'Colored' describes only one race, and that is the Negro." Therefore, argued counsel for Martha Lum, since she was of pure Chinese ancestory she should be admitted to the white elementary school. Now, we do not believe that Gong Lum can be con sidered as a precedent contrary to the position we take here. Certainly it cannot be conceded as such a pre cedent until this court, when the issue is squarely presented to it, on the question of the power of the state, examines the question and makes a determination in the state's favor; and only in that instance do we feel that Gong Lum can be any authority on this ques tion. Cp. 20) As was noted in the analysis of Gong Lum in Chapter IV, the Supreme Court decided that the state had the right and power to regulate the method of providing for the education of its youth in public schools. The Court also held that the exercise of such power was a Constitutional exercise of 155 its rights, without the intervention of the federal courts under the federal Constitution. Justice Frankfurter took issue with Carter*s interpretation of the Gong Lum case: JUSTICE FRANKFURTER: Mr. Carter, while what you say may be so, nevertheless, in its opinion, the Court, in Gong Lum, did rest on the fact that this issue had been settled by a large body of adjudications going back to what was or might fairly have been called an abolitionist State, the Commonwealth of Massachusetts. Going back to the Roberts case— MR. CARTER: Yes, sir. JUSTICE FRANKFURTER: — I want to ask you— and, may I say, particularly in a case of this sort, a question does not imply an answer; a question merely implies an eager desire for information— I want to ask you whether in the light of that fact, this was a unanimous opinion of the Court which, at the time, had on its membership Justice Holmes, Justice Brandeis, Justice Stone— and I am picking those out not invidiously, but as Judges who gave great evidence of being very sensitive and alert to questions of so-called civil liberties— and I should like to ask you whether you think that deci sion rested on the concession by the petitioner in that case, and the problem of segregation was not in volved and, in fact, that underlay the whole decision, the whole adjudication--whether you think a man like Justice Brandeis would have been foreclosed by the concession of the parties. (pp. 20-21) (Justice Frankfurter is here referring to the concession made by counsel for Martha Lum in Gong Lum, that is, that race may he reasonably used as a basis for classification.) In answer to Justice Frankfurter's question, Carter stated: MR. CARTER: Well, your Honor, in all honesty, I would say that only partially would I consider that to be true. I think that what the Court did in Gong Lum, the Court was presented with the issue or the question, and it assumed that facilities were equal; and the Court at that time with regard to this issue which was raised, although they conceded the power and did not have to make any full examination, it felt after review ing those other decisions that the only question that 156 they would have to consider or settle was the question of equal facilities. JUSTICE FRANKFURTER: Yes. But the Court took as settled by a long course of decisions that this ques tion was many times decided that this power was within the constitutional power of the state legislatures, this power of segregation. MR. CARTER: Yes sir. JUSTICE FRANKFURTER: The more specific question I would like to put to you is this: Do we not have to face the fact that what you are challenging is some thing that was written into the public law and adjudi cations of courts, including this Court, by a large body of decisions and, therefore, the questions arises whether, and under what circumstances, this Court should now upset so long a course of decisions? . . . Is anything to be gained by conceding that central fact that central issue? (pp. 21-22) Carter stated that with the exception of the Gong Lum case, the Court had not adoped the ,fseparate-but-equal doctrine" at the elementary and high school levels. Brown v. Board of Education presented the Court with a full record, with plentiful evidence of the deleterious effects of segregation on the Negro child. Since Gong Lum failed to raise the issue of segregation in elementary schools, Gong Lum ought not to be controllingj the Supreme Court should consider Brown v. Board of Education as a case of first impression. Justice Frankfurter both agreed and then challenged Carter's position: JUSTICE FRANKFURTER: You are quite right in suggesting that this question explicitly as to segregation in the primary grades has not been adjudicated by this Court. This question is in that frame, in that explicitness, unembarrassed by physical inequalities, and so on before the Court for the first time. But a long course of legislation by the states, and a long course of utterances by this Court and other courts in dealing with the subject, from the point of view of relevance as to whether a thing is or is not within the prohibi tion of the Fourteenth Amendment, is from my point of view almost as impressive as a single decision which does not mean that I would be controlled in a Constitu tional case by a direct adjudication; but I do think we have to face in this case the fact that we are dealing with a long-established historical practice by the States, and the assumption of the exercise of power which not only was written on the statute books, but has been confirmed and adjudicated by State courts as well as by the expressions of this Court. MR. CARTER: Well, Mr. Justice Frankfurter, I would say on that that I was attempting here to take the narrow position with regard to this case, and to approach it in a way that I thought the Court approached the decision in Sweatt and McLaurin. I have no hesitancy in saying to the Court that if they do not agree that the decision can be handed down in our favor on this basis of this approach, that I have no hesitancy in saying that the issue of ’separate but equal' should be faced and ought to be faced, and that in our view the 'separate but equal' doctrine should be overruled. But as I said before, as the Court apparently approached Sweatt and McLaurin, it did not feel it had to meet that issue, and we do not feel it has to meet it here, but if the Court has reached a contrary conclusion in regard to it, then we of course take the position that the "separate but equal" doctrine should be squarely over ruled. JUSTICE FRNAKFURTER: May I trouble you to clarify that? Do I understand from what you have Just said that you think this Kansas law is bad on the record, is bad in the Kansas case, on the "separate but equal" doctrine, and that even by that test this law must fall? MR. CARTER: No, sir; I think— JUSTICE FRANKFURTER: Then why do we not have to face the "separate but equal" doctrine? (pp. 23-25) 158 Carter argued again that with the possible exception of Gong Lum, the Brown case is one of first impression, when it has a full record, which you can give full consideration to, and that Gong Lum, which did not squarely raise the issue, ought not to be controlling. All I am saying is that you do not have to overrule "separate but equal" at the elementary school level in citing the Kansas case because you have never decided the "separate but equal" applied at the elementary school level. JUSTICE FRANKFURTER: Are you saying that we can say that "separate but equal" is not a doctrine that is relevant at the primary school level? Is that what you are saying? (pp. 25-26) Apparently sensing that Justice Frankfurter was leading Carter into a difficult legal position, Justice Douglas sought at this point to extricate Carter: JUSTICE DOUGLAS: I think you are saying that segrega tion may be all right in the street cars and railroad cars and restaurants, but that is all we have decided. MR* CARTER: That is the only place that you have decided that it is all right. JUSTICE DOUGLAS: And that education is different; education is different from that. MR. CARTER: Yes, sir. JUSTICE DOUGLAS: That is your argument, is it not? Isn't that your argument in this case? MR. CARTER: Yes. (p. 26) But Justice Frankfurter was not to be denied. JUSTICE FRANKFURTER: But how can,jthat be your argument when the whole basis of dealing with education thus far has been to find out whether it, the "separate but equal" doctrine is satisfied? JUSTICE DOUGLAS: You are talking about the gist of the cases in this Court? 159 JUSTICE FRANKFURTER: I am talking about the cases In this Court. MR. CARTER: As I Interpret the cases In this Court, Your Honor, as I interpret the Sweatt case and the McLaurin case, the question of "separate but equal" as to whether the separate and equal doctrine was satisfied, I do not believe that that test was applied there. In McLaurin there was no separation. JUSTICE FRANKFURTER: But take the Gaines case, take the beginning of the "separate but equal" and unless I completely misconceive the cases I have read before I came here and those in which I have participated, the test in each one of these cases was whether "sep arate and equal" is relevant or whether it was satis fied and we have held in some of the cases that it was not satisfied, and that in a Constitutional case we do not have to go beyond the immediate necessities of the record and we have said as to others that for purposes of training in the law you have a mixed situation; you cannot draw that line. (.pp. 26-27) Carter maintained that it would appear that the Court went beyond the Plessy doctrine in Sweatt and McLaurin by setting standards in the schools involved so high that it would seem to he impossible for a state to validly maintain segregation in law and graduate schools. He stressed the fact that McLaurin had the same teachers, the same quality of Instruction but he was set apart in the classroom and in the cafeteria and in other areas of the school. In this regard, "this Court held that these restrictions were sufficient in and of themselves to impair McLaurin's ability to study and, therefore, to deprive him of the equal protection of the law" (p. 28). In regard to the Gaines case, (where the state of Missouri offered to furnish a law school substantially equal 160 to the University of Missouri law school but located out of the state), Justice Reed noted that the state of Missouri considered this offer to Gaines as creating a substantially equal situation but that the Supreme Court of the United States said they were not equal. Justice Reed apparently had joined Justice Frankfurter in chal lenging Carter’s position that the Plessy doctrine did not apply. JUSTICE REED: Well, we did not have before us in the Gaines case the problem of "separate but equal." We determined that they were not equal because they were out of state. MR. CARTER: Well, Your Honor, I do not conceive of "separate and equal" as being the type of offering that the state of Missouri offered when they attempted to give out of state aid. JUSTICE REED: Neither did this courtj but Missouri claimed that they were equal. MR. CARTER: I am sorry, I do not think you have under stood my answer. I do not conceive of the out-of-state aid which Missouri offered to petitioner Gaines to go to some institution outside of the state as being with in the purview of a "separate but equal" doctrine. I think that in terms of the "separate but equal" doctrine, that there must be segregation. The "sepa rate but equal" doctrine I think, concerns itself with segregation within the State and setting up of two institutions, one for Negroes and one for whites. All the state was doing, and I think there, was that it knew that it had the obligation of furnishing some facilities to Negroes, and so it offered them this out-of-state aid. But I do not believe that actually it can be— I mean, my understanding is that this cannot be classified as a part of the "separate but equal" doctrine. JUSTICE REED: No. This Court did not classify it that way. They said it is not separate and equal to give 161 education In another state, and therefore, "you must admit him to the University of Missouri" was It? MR. CARTER: University of Missouri, yes. JUSTICE REED: Yes. (pp. 29-30) Justice Frankfurter was not yet finished with stressing the long history and applicability of the Plessy doctrine to Brown v. Board of Education. JUSTICE FRANKFURTER: But there is another aspect of my question, namely, that we are dealing here with a challenge to the constitutionality of legislation which is not just one legislative responsibility, not just an episodic piece of legislature in one state. But we are dealing with a body of enactments by numer ous states, whatever they are— 18 or 20— to use the numbers, not only the South but border states and northern states, and legislation which has a long history. Now, unless you say that this legislation merely repre sents man's inhumanity to man, what is the root of this legislation? What is it based on? Why was there such legislation? And was there any consideration that the states were warranted in dealing with— maybe not this way— but was there anything in life to which this legislation responds? MR. CARTER: Well, Your Honor, I think that this legislation is clear— certain of this legislation in Kansas— that the sole basis for it is race. JUSTICE FRANKFURTER: Is race? MR. CARTER: Is race. JUSTICE FRANKFURTER: Yes, I understand that. I understand all this legislation. But I want to know why this legislation, the sole basis of which is race— is there just some wilfulness of man in the states or some, as I say, of man's Inhumanity to man, some ruth less disregard of the facts of life? (pp. 30-31) In Carter's opinion the segregation of Negro school children was authorized by the statutes of Kansas because Negros 162 were concentrated In urban areas and that the people from the north and south In Kansas had conflicting views about the question of the treatment of Negroes. Therefore, they enacted the laws which are on the statute books. In answer to a question from the Chief Justice, Carter stated that the Kansas law was first enacted in 1862, and then amended in 1868. Since he was nearing the end of the allotted time, Carter again succinctly stated his position: MR. CARTER: But our feelings on the reach of equal protection, the equal protection clause, is that as the appellants, as members of the minority group, whatever the majority may feel that they can do with their rights for whatever purpose, that the equal protection clause was intended to protect them against the whims, as they come and go. JUSTICE FRANKFURTER: How would you establish the fact that it was intended to protect them against them? How would I find out if I'd like to follow your scent; that is, what the amendment is Intended to accomplish, how would I go about finding that out? (p. 32) Certainly Justice Frankfurter's last question is one of the most difficult to answer in the field of Constitutional law. As noted in Chapter IV, not all cases are governed by an express statement in the Constitution. The original language of the Constitution is in a constant state of expansion to meet new economic, social, and political contingencies. Carter could answer that question only by reference to the pronouncements of the Supreme Court itself. The following exchange took place with Justice Frankfurter: JUSTICE FRANKFURTER: But you think that you can argue 163 that or do you think that we can justify this case by some abstract declaration? MR. CARTER: Well, I have attempted before lunch, Your Honor, to address myself to that point, and that was one of the bases for our attack; that this was a classification, an instance of a classification, based upon race which, under these decisions of this Court do not form a valid basis for legislation. (p. 33) After answering a question propounded by Justice Reed wherein Carter indicated that he felt that there was no real distinction between "due process of law" and the "equal protection" clause of the Fourteenth Amendment, Carter ended this portion of the argument and reserved the next few minutes for rebuttal. The Chief Justice then called on Paul E. Wilson, Deputy Attorney General of the State of Kansas. ARGUMENT ON BEHALF OF APPELLEES by Paul E. Wilson Wilson initially explained to the Court that this case involved only the Topeka Board of Education and not the state of Kansas. The Attorney General of Kansas therefore took the position that this action was local in nature and not of statewide concern. Thus he did not participate actively in the trial of the case. He explained that the Board of Education of Topeka determined that it would not resist the appeal taken by the appellants to the Supreme Court. Based upon a decision of the Board of Education, the Attorney General determined that he should be governed 16H by the attitude taken on the local level and consequently did not appear in the case. The Chief Justice emphasized the importance of the case and insisted that the State of Kansas be represented in this hearing: THE CHIEF JUSTICE: General Wilson, may I state to you that we were informed that the Board of Education would not be represented here in argument, would not file a brief, and it being a very important question, and this case having facets that other cases did not, we wanted to hear from the State of Kansas. MR. WILSON: We are very glad to comply with the Courts request. I was simply intending to emphasize that we did not intentionally disregard our duty to this Court. THE CHIEF JUSTICE: I understand it. As I understand it, you had turned it over to the Board of Education and expected them to appear here, is that right? MR. WILSON: That is correct sir. THE CHIEF JUSTICE: And when we found out that they were not going to, we did not want the State of Kansas and its viewpoint to be silent, (p. 36) With these preliminary remarks concluded, Wilson proceeded to argue. He stated that in the opinion of the' State of Kansas, the statute involved herein was Constitu tional and did not violate the Fourteenth Amendment. He justified this viewpoint on the basis that the Kansas Supreme Court, specifically said so. ". . .We believe,” he said, "that the decisions of the Supreme Court of Kansas follow and are supported by the decisions of this Court, and the decisions of many, many appellant courts and other Jurisdictions." (p. 37) 165 Wilson stated the issue very concisely'; he observed that Carter had conceded, as the Court below found, that there was no substantial inequality in the educational facilities afforded by the City of Topeka to the appellants. The physical facilities were found to be the same, or sub stantially alike; it was also found by the lower court that the course of study and the instructional facilities were determined to be substantially equal. Therefore, argued Wilson, "it is our theory that this case resolves itself simply to this: whether the 1 separate by equal' doctrine is still the law, and whether it is to be followed in this case by this court." (p. 38) Wilson did not get very far in his argument before Justice Frankfurter sought to determine what problems would arise in Kansas as a result of a reversal of the lower court by the Supreme Court. In perfect candor Wilson answered that the consequences of a reversal of the lower court by the Supreme Court would not be serious. He indi cated that the Negro population was small and the only problem which might be engendered would be merely to assimi late the. ..Negro teachers and Negro administrators into the total school system. While this might produce a few admin istrative difficulties, Wilson declared that he could imagine nothing serious beyond that. Wilson's intellectual honesty and fairness was further evidenced by his answer to a question from the 166 Court. Justice Jackson wanted to know whether or not the problem in Kansas would be more difficult if there were a heavier concentration of Negroes in that State. Wilson replied that it would be difficult for him to answer that question because he was not acquainted with the situation where there is a heavier concentration of Negroes. He sought to justify the Kansas Statute on this basis: During the struggle between North and the South prior to the war between the States and immediately there after, the Negroes who came up from the South settled in various communities in Kansas. As a result of this influx, the early legislatures in Kansas were faced with a difficult situation. In some communities the attitudes of the people were such that it was deemed best that the Negro Race live apart. In other communities a different attitude was reflected. Also in some communities there was a substantial Negro population. In other communities there were few Negroes. Therefore, the legislature sought by this type of legislation to provide a means whereby the community could adjust its plan to suit local conditions, and we believe that they succeeded. (p. ^3) Wilson indicated that a large number of Negroes came from the South in the l880's and settled in Kansas communities. A large number of those people settled in Topeka and, for the first time a racial problem was created in that city requiring an adjustment within the community. He stated that segregation was established in Topeka, Kansas about the year 1900. 167 Wilson stressed the fact that the Supreme Court of Kansas had upheld the Kansas Statute In 190 3 and decided It did not violate the Fourteenth Amendment. The position of the Attorney General of Kansas was that the "principle announced in the Plessy case and the specific rule an nounced in the Gong Lum case are absolutely controlling in this case." (p. 45) We think it is sheer sophistry to attempt to dis tinguish those cases from the case that is here pre sented, and we think the question before this Court is simply this: Is the Plessy case and the Gong Lum case and the "separate but equal" doctrine still the law of this land? We think if you decide in favor of these appellants, the Court will necessarily overrule the doctrine ex pressed in those cases and, at the same time, will say that the legislatures of the seventeen or twenty-one states, that the Congress of the United States, that dozens of appellate courts have been wrong for a period of more than seventy-five years, when they have believed and have manifested a belief that facilities equal though separate were within the meaning of the Four teenth Amendment. (pp. 45-46) The influences of economic and social forces on legal interpretation were succinctly expressed in the following exchange: JUSTICE BURTON: Don't you recognize it as possible that within seventy-five years the social and economic conditions and the personal relations of the Nation may have changed so that what may have been a valid interpretation of them seventy-five years ago would not be a valid interpretation of them constitutionally today? MR. WILSON: We recognize that as a possibility. We do not believe that this record discloses any such change. 168 JUSTICE BURTON: But that might be a difference between saying that these courts of appeals and State Supreme Courts have been wrong for seventy-five years. MR. WILSON: Yes sir. We concede that this Court can overrule the Gong Lum doctrine, the Plessy doctrine, but nevertheless until those cases are overruled they are the best guides we have. JUSTICE FRANKFURTER: As I understand my Brother Burton's question or as I got the implication of his question, it was not that the Court would have to over rule those cases; the Court would simply have to recog nize that laws are kinetic, and some new things have happened, not deeming those decisions wrong, but bringing into play new situations toward a new decision. I do not know whether he would disown me, but that is what I got out of it. (pp. 46-47) Wilson agreed with the Court, but did not think that there was anything in the record that would justify such a conclusion. He then proceeded with his argument. He repeated and again emphasized that the Court had found that the physical facilities were equal, the Instructional facilities were equal and that the courses of study were equal. It was his opinion that although the Court found that segregation of white and colored children in public schools has a detrimental effect upon colored children, nevertheless the "District Court, and we believe rightly, regarded it as something that is inconsequential, immater ial, not governing in this case" (p. 48). Wilson ended his presentation by arguing a technical point of law. In order to obtain an injunction it is necessary that the appellants individually show they have actually suffered personal harm from attending segregated 169 schools in Topeka, Kansas; they must show that either they have been deprived of some benefit that is conferred on the rest of the population or they must demonstrate that they are being subjected to some detriment that the rest of the population does not suffer. In Wilson's opinion the appellants may have proved their case in general but failed to prove their case as it applied to each individual child involved as plaintiffs and appellants in this case. REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS by Robert L. Carter After an exchange with Justice Black, Carter con cluded his argument: MR. CARTER: Now, to conclude, our feeling is that this could be decided on the question of the legality of the classification Itself. This case could also be decided on the question of equal educational opportunities as they are examined by the approach of McLaurin and Sweatt. We think that the court below did the same thing. The court below did what this Court did in McLaurin and Sweatt, and we think that in the examination of the equality of education offered, that what it did was it found that these restrictions Imposed disabilities on Negro children and prevented them from having educa tional opportunities equal to white, and for these reasons we think that the Judgment of the court below should be reversed and the Kansas Statute should be struck down. (p. 53) (Whereupon, at 3:15 p.m. the argument was concluded.) 170 Briggs v. Elliott^ Argument In Briggs v. Elliott (South Carolina) fol lowed immediately after Brown v. Board of Education. The Court noted appearances of counsel for and on behalf of appellants: Thurgood Marshall, and on behalf of appellees: John W. Davis. THE CHIEF JUSTICE: Case number 101, Harry Briggs, Jr., et. at., against Roger W. Elliott, Chairman, J. D. Carson et al., members of the Board of Trustees of School District No. 22, Clarendon County, South Caro lina, et al. THE CLERK: Counsel are present. (p. 2) ARGUMENT ON BEHALF OF APPELLANTS by Thurgood Marshall At the very beginning of his argument, Marshall, in accordance with the strategy and tactics of the other coun sel for appellants, stated that his position was not an attack on the separate-but-equal doctrine as to physical facilities. He informed the Supreme Court that prior to the beginning of trial in the United States District Court, he had told that Court: the position we were taking was that these statutes were unconstitutional in their enforcement because they not only produced these inevitable inequalities in physical facilities, but that evidence would be pro duced by expert witnesses to show that the governmen- tally-imposed racial segregation in and of itself was also a denial of equality, (pp. 3-*0 ^Transcript of Oral Argument, Briggs v. Elliott, December 9, 1952. Unless otherwise indicated, all quota' tions in this section are from the Transcript. 171 Marshall pointed out that appellants had produced several expert witnesses who were neither contradicted nor impeached, and who testified that segregation had a detri mental effect on the Negro children. This result, argued Marshall, was a denial of their constitutional rights under the equal protection clause of the Fourteenth Amendment. Witnesses testified that segregation deterred the deve lopment of the personalities of these children. Two witnesses testified that it deprives them of equal status in the school community, that it destroys their self-respect. Two other witnesses testified that it denies them full opportunity for democratic social development. Another witness said that it stamps him with a badge of inferiority. The summation of that testimony is that Negro children have road blocks put up in their minds as a result of the segregation, so that the amount of educa tion that they take in is much less than other students take in. I do not know what clearer testimony we could pro duce in an attack on a specific statute as applied to a specific group of appellants. (pp. 6-7) Marshall also utilized this same testimony to demonstrate that the segregation of white and Negro school children was an unlawful and wrongful "classification.1 1 . . . we produced testimony to show what we considered the normal tack on a classification statute, that this Court has laid down the rule in many cases set out in our brief, that in the case of the object or persons being classified, it must be shown that there is a difference in the two, and, too, that the state must show that the difference has a significance with the subject matter being legislated, and the state has made no effort up to this date to show any basis for that classification other than it would be unwise to do otherwise, (p. 6) 172 He contended that the District Court ruled out the question of argument on the Issue of segregation per se, the effect that segregation had on Negro school children, and the denial of their rights under the Constitution. The lower court decided the case solely on the basis of curri cula, transportation, faculty, and schools. But in this case in the trial we conceived ourselves as conforming to the rules set out in the McLaurin and the Sweatt cases, where this Court held that the only question to be decided was the question as to whether or not the action of the State maintaining its segre gation was denying to the students the equal protection of the laws. Of course, those decisions were limited to the graduate and professional schools. But we took the position that the rationale, if you please, or the principle, to be stronger, set out in those cases would apply just as well down the line provided evidence could be introduced which would show the same type of injury. That is the type of evidence we produced, and we believed that on the basis of that testimony, the District Court should properly have held that in the area of elementary and high schools, the same type of injury was present as would be present in the McLaurin or the Sweatt case. However, the District Court held just to the con trary, and said that there was a significant difference between the two. That is, in the Sweatt case it was a matter of an inequality and in the McLaurin case, McLaurin was subject to such humiliation, et cetera, that nobody should put up with it, where as in this case we have positive testimony from Dr. Clark that the humiliation that these children have been going through is the type of injury to the minds that will be per manent as long as they are in segregated schools, not theoretical injury, but actual injury, (pp. 13-14) Marshall contended, as did Carter, that Plessy v. Ferguson and Gong Lum v. Rice did not apply and that the Court would not have to consider those cases in making its 173 decision. In discussing the majority opinion in the Plessy case, Marshall mentioned the Roberts case, "which was decided before the Fourteenth Amendment was even passed." He was referring to Roberts v. City of Boston. 5 Cush. 198, (.1849) in which the Supreme Judicial Court of Massachussets held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance at the other schools. (See the discussion of the case Chapter IV). Marshall's crit icism of the Roberts case set off a long series of ques tions and answers between Marshall and Justice Frankfurter. Marshall's attempt to brush the Roberts case aside lightly and quickly brought this question from Justice Frankfurter: JUSTICE FRANKFURTER: But that does not do away with the consideration of the Roberts case, does it? MR. MARSHALL: No, sir, it does not. JUSTICE FRANKFURTER: The significance of the Roberts case is that that should be considered by the Supreme Court at a time when that issue was rampant in the United States. MR. MARSHALL: Well, sir, I do not know about those days. But I cannot conceive of the Roberts case being good for anything except that the legislatures of the states at those times were trying to work out their problems as they best could understand. And it could be that up in Massachussets at that time they thought that Negroes--some of them were escaping from slavery, and all— but I still say that the considerations for the passage of any legislation before the Civil War and up to 1900, certainly, could not apply at the present time. I think that every race has made progress, but I do not believe that those considerations have any bearing at this time. The question today is— 174 JUSTICE FRANKFURTER: They do not study these cases. But may I call your attention to what Mr. Justice Holmes said about the Fourteenth Amendment? "The Fourteenth Amendment itself as an historical product did not destroy history for the state and substitute mechanical departments of law. ..." MR. MARSHALL: I agree sir. JUSTICE FRANKFURTER: Then you have to face the fact that this is not a question to be decided by abstract starting point of natural law, that you cannot have segregation. If we start with that, of course, we will end with that. MR. MARSHALL: I do not know of any other proposition, sir, that we could consider that would say that because a person who is as white as snow with blue eyes and blonde hair has to be set aside. JUSTICE FRANKFURTER: Do you think that is the case? MR. MARSHALL: Yes, sir. The law of South Carolina applies that way. JUSTICE FRANKFURTER: Do you think that this law was passed for the same reason that a law would be passed prohibiting blue eyed children from attending public schools? You would permit all blue-eyed children to go to separate schools? You think that this is the case? MR. MARSHALL: No sir because the blue eyed people of the United States never had the badge of slavery which was perpetuated in the statutes. JUSTICE FRANKFURTER: If it is perpetuated as slavery, then the Thirteenth Amendment would apply. MR. MARSHALL: But at the time— JUSTICE FRANKFURTER: Do you really think it helps us not to recognize that behind this are certain facts of life, and the question is whether a legislature can address itself to those facts of life in despite of or within the Fourteenth Amendment, or whether, whatever the facts of life might be, where there is a vast con gregation of Negro population as against the states where there is not, whether that is an irrelevant con sideration? Can you escape facing those sociological facts, Mr. Marshall? 175 MR. MARSHALL: No, I cannot escape it. But If I did fail to escape it, I would have to throw completely aside the personal and present rights of those indivi duals . JUSTICE FRANKFURTER: No, you would not. It does not follow because you cannot make certain classifications, you cannot make some classifications. MR. MARSHALL: But the personal and present right that I have to be considered like any other citizen of Clarendon County, South Carolina, is a right that has been recognized by this Court over and over again and so far as the appellants in this case are concerned, I cannot consider it sufficient to be relegated to the legislature of South Carolina where the record in this Court shows their consideration of Negroes, and I speak specifically of the primary case. JUSTICE FRANKFURTER: If you would refer to the record of the case, there they said that the doctrine of classification is not excluded by the Fourteenth Amend ment, but its employment by state legislatures has no justifiable foundation. MR. MARSHALL: I think that when an attack is made on a statute on the ground that it is an unreasonable classification, and competant, recognized testimony is produced, I think then the least that the state has to do is to produce something to defend their statutes. JUSTICE FRANKFURTER: I follow you when you talk that way. MR. MARSHALL: That is part of the argument sir. JUSTICE FRANKFURTER: But when you start, as I say, with a conclusion that you cannot have segregation, then there is no problem. If you start with a conclusion of the problem, there is no problem. MR. MARSHALL: But Mr. Justice Frankfurter, I was trying to make three different points. I said that the first one was peculiarly narrow, under the McLaurin and the Sweatt decisions. The second point was that on a classification basis, these statutes were bad. The third point was the broader point, that racial distinctions in and of themselves are invidious. I 176 consider it as a three-pronged attack. Any one of the three would be sufficient for reversal, (pp. 16-20) Justice Frankfurter was certainly one of the most persistent and inquisitive members of the Court. The "give and take" between Justice Frankfurter and Marshall clearly demonstrated the ever questioning thought processes of the Court seeking information, clarification, and ultimately, of course, decision. This process also showed the need for the advocate to be so fully prepared in the field of con stitutional law generally and in his primary case specifi cally that he is able to quickly and competently "field" the Court's questions. Occasionally the oral presentation reduced to writing gives the wrong impression. By inflection, empha sis, and pause— the argument may seem persuasive and gram matical to the ear. When reduced to a written transcript the reader is sometimes shocked by what appears to be a most ungrammatical presentation, replete with Jumbled sentence and thought structures. Compared to the smooth orator, such as his opponent, John W. Davis, Marshall would seem to leave much to be desired with reference to the correct use of the English Language. Yet, it seemed obvious throughout the entire argument that the Court held Marshall in great esteem and respected him. This was reflected in their questions. The conclusion seemed evident: Marshall's prepara tion, general knowledge, and reputation in the field of 177 Civil Rights was well known to the Court. Although this writer never heard him argue before a court, it seemed readily apparent that Marshall argued forcefully and intel ligently; he deftly handled the questions of the Court and turned them, in several instances, to his advantage. For example, in the continuing exchange with Justice Frankfurter the Judge and counsel moved into a "peripheral" area of the law dealing with an interstate problem. Note how Marshall turned the subject back into the realm of the primary case; MR. MARSHALL: That is a different problem. But a minute ago the very question was raised that we have to deal with realities, and it did upset that. Take the primary case. There is no more ingrained rule than there were in the cases of McLaurin and Sweatt, the graduate school cases. If he had allowed the discussion to wander into the areas of interstate commerce and similar problems, it would have seriously detracted from his principal argument. Knowing thajj Jjis time was limited it was important that he respect fully and candidly answer the Court's questions as quickly as possible. He could not allow the Court to move him into an area obliquely connected with the case he was arguing. Having heard Carter's argument for appellants in the Brown case, which preceded him, Marshall was obviously aware of Justice Frankfurter's trepidations regarding possible racial conflict in the event the Court desegregated the public schools. 178 MR. MARSHALL: That is what I appreciate, your Honor. But I say sir that most of my time is_spent down in the South, and despite all these predictions as to what might happen, I do not think that anything is going to happen anymore except on the graduate and professional level. And this Court can take notice of the reports that have been in papers such as the New York Times. But it seems to me on that question, this Court should go back to the case of Buchanan v. Warley, where on the question as to whether or not there was this great problem, this Court in Buchanan v. Warley said: That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and for which it must give a measure of consideration, may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges. In this case, granting that there is a feeling of race hostility in South Carolina, if there be such a thing, or granting that there is that problem, that we cannot have the individual rights subjected to this consideration of what the groups might do, for example, it was even argued that it will be better for both the Negro and the so-called white group. This record is not quite clear as to who is in the white group, be cause the superintendent of schools said that he did not know; all he knew was that Negroes were excluded. So I imagine that the other schools take in everybody, tp. 21) Apparently Marshall had anticipated the further questionings of Justice Frankfurter. JUSTICE FRANKFURTER: It would be more important infor mation, in my mind, to have you spell out in concrete what would happen if this Court reverses [the lower court] and the case goes back to the District Court for the entry of the decree. MR. MARSHALL: I think sir that the decree would be entered which would enjoin the school officials from, one, enforcing the statute; two, from segregating on the basis of race or color. Then I think whatever district lines they draw, if it can be shown that those lines are drawn on the basis of race or color, then I think they would violate the injunction. As the lines are drawn on a natural basis, without regard to race or 179 color, then I think that nobody would have any com plaint. (p. 25) It seemed apparent that Justice Frankfurter was already considering the form of the decree enjoining segregation. JUSTICE FRANKFURTER: I think that nothing would be worse than for this Court— I am expressing my own opinion— nothing would be worse, from my point of view ^han for this Court to make an abstract declaration that segregation is bad and then have it evaded by tricks. (p. 25) The obvious fear that Justice Frankfurter expressed was that school boards could evade an injunction by gerry mandering. Marshall1s excellent (if somewhat ungrammati cal) answer to this question was: MR. MARSHALL: So in South Carolina, if the decree was entered as we have requested, then the school district would have to decide a means other than race, and if it ended up that Negroes were all in one school, be cause of race, they would be violating the injunction just as bad as they are by violating what we consider to be the Fourteenth Amendment now. (pp. 26-27) In regard to the possible gerrymandering of school districts by local school boards, Justice Frankfurter asked Marshall how he would handle this issue in the District of Columbia "if tomorrow there were the require ment that there must be mixed groups." Marshall spent one paragraph indicating how he would handle the matter in the District of Columbia. Then he quickly maneuvered in order to avoid the yet hypothetical situation. MR. MARSHALL: But my emphasis is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the indivi dual. qhildren. And the testimony in many instances is along that line. (p. 28) 180 Thus, Marshall showed distinct courtesy to the Court by a very brief answer to the Court's question as requested, but nevertheless he exhibited deftness and resiliency in being able to quickly return to the "main stream" of his argument. ARGUMENT ON BEHALF OF THE APPELLEES by John W. Davis Before the Court recessed on December 9, 1952, Davis quickly, clearly, and concisely stated the position of the appellees. The mandate of the lower court had been fully met, said Davis. The defendants were required to proceed at once to furnish plaintiffs and other Negro pupils of said district educational facilities, equipment, curricula, and opportunities equal to those furnished white pupils. . . . We have been found to have obeyed the Court's Injunction. The question is no longer in the case, and the complaint which is made by the appellants in their brief that the school doors have been immediately thrown open instead of taking the time necessary to readjust the physical facilities, is . a moot question at this stage of the case. The second question to which I wish to address my self is that Article 14, Section 7 of the Constitution of South Carolina, and Section 5377 of the code both making the separation of schools between white and colored mandatory, do not offend the Fourteenth Amend ment to the Constitution of the United States or deny equal protection. The right of a state to classify pupils in its public schools on the basis of sex or age or mental capacity, or race, is not impaired or affected by that amendment. 181 Third, I want to say something about the evidence offered by the plaintiffs upon which Counsel so confi dently relied. I see that the evidence offered by the plaintiffs, be its merits what it may, deals entirely with legis lative policy, and does not tread on Constitutional right. Whether it does or not, it would be difficult for me to conceal my opinion that that evidence in and of itself is of slight weight and in conflict with the opinion of other and better informed sources. I hope I have not laid out too much territory for the time that is allotted to me. Let me attack it seriatim. (pp. 31-32) The attack outlined by Davis was not only a logical rebuttal of Marshall’s arguments, but it was buttressed by existent fact and law. The lower court found substantial compliance with its decree which was aimed at making elementary and high schools substantially equal. "Salaries of teachers were equalized. Curricula was made uniform, and the State of South Carolina appropriated money to furnish school buses for black and white" (pp. 36-37). (Whereupon the Court adjourned at *1:30 p.m. on December 9, 1952. At 12:10 p.m. on December 10, 1952, Davis resumed argument for and on behalf of the appellees in Briggs v. Elliott.) Davis supported his argument regarding the com pliance with the decree of the lower court by quoting Judge Parker of that court as follows: The reports of December 21 and March 3rd filed by defendants, which are admitted by plaintiffs to be true and correct and which are so found by the Court, show beyond question that defendants have proceeded promptly and in good faith to comply with the Court's decree. 182 There can be no doubt that as a result of the pro gram In which defendants are engaged the educational facilities and opportunities afforded Negroes within the district will, by the beginning of the next school year beginning In September, [sic] 1952, be made equal to those afforded white persons, (pp. 39-40) A finding of fact by a lower court, which unequivocably supports the argument of the advocate, is a powerful weapon. The upper court depends in no small degree upon the finding of fact either by the court if a case is tried without a jury, or upon the findings of the jury, if a Jury trial has been held. Ordinarily, the appellate tribunal will not disturb the findings of fact of the lower court unless there is obvious error. Thus, the counsel who is supported by the lower court, need only briefly summarize the facts, quote the lower court regarding its findings and then can ordinarily and safely move on to the legal issues involved, secure in the knowledge that the upper court will generally accept such findings. Davis did just that. After three or four minutes of argument, Davis went to what he considered "really the crux of the case. That is the meaning and interpretation of the Fourteenth Amendment of the Constitu tion of the United States." (p. 40) In analyzing the Fourteenth Amendment, and specifically the equal protection clause of that amendment, Davis argued that "it is the duty of the interpretation to place ourselves as nearly as pos sible in the condition of those who framed the instrument. What was the condition of those who framed the instrument?" (p. 4l). He noted that the resolution adopting the 183 Fourteenth Amendment was profferred by Congress in June, 1866. In the succeeding month of July, the same Congress proceeded to establish, or to continue separate schools in the District of Columbia, and from that good day to this, Congress has not waivered in that policy. It has confronted the attack upon it repeatedly. During the life of Charles Sumner, over and over again, he under took to amend the law of the District so as to provide for mixed and not for separate schools, and again and again he was defeated. (pp. 41-42) It was at this point that Justice Burton interposed a question which is certainly basic to all constitutional interpretation. As previously noted, those who argued for the end of segregated schools, were of the opinion that our Constitution is a living and flexible document, accommodat ing itself to different social, economic, and political conditions. On the other hand, those who opposed change, argued that the Courts are not authorized to broaden the terminology of the Constitution. Any changes, therefore, must come with political action and not by Judicial con struction. Justice Burton challenged this view. Justice Frankfurter joined in the questioning and continued the line of thought begun by Justice Burton. JUSTICE FRANKFURTER: Mr. Davis, do you think that "equal" is a less fluid term than "commerce between the states." MR. DAVIS: Less fluid? JUSTICE FRANKFURTER: Yes. MR. DAVIS: I have not compared the two on the point of fluidity. 184 JUSTICE FRANKFURTER: Suppose you do It now. MR. DAVIS: I am not sure that I can approach it In Just that sense. JUSTICE FRANKFURTER: The problem behind my question is whatever the phrasing of It would be. MR. DAVIS: That what Is unequal today may be equal tomorrow, or vice versa? JUSTICE FRANKFURTER: That is it. MR. DAVIS: That might be. I should not philosophize about it. But the effort in which I am now engaged is to show how those who submitted this amendment and those who adopted it conceded it to be, and what their conduct by way of interpretation has been since its ratification in 1868. JUSTICE FRANKFURTER: What you are saying is, that as a matter of history, history puts a gloss upon "equal" which does not permit elimination or admixture of white and colored in this aspect to be introduced? MR. DAVIS: Yes I am saying that. JUSTICE FRANKFURTER: That is what you are saying? MR. DAVIS: Yes I am saying that. I am saying that equal protection in the minds of the Congress of the United States did not contemplate mixed schools as a necessity. I am saying that, and I rest on it, though I shall not go further into the congressional history of this subject, because my brother Korman speaking for the District of Columbia will enter that phase of it. It Is true that in the Constitution of the United States there is no equal protection clause. It is true that the Fourteenth Amendment was addressed pri marily to the states. But it is inconceivable that Congress which submitted It would have forbidden the states to employ an educational scheme which Congress itself was persistent in employing In the District of Columbia, (pp. 43-44) Davis then pointed to the fact that some twenty-one states in 1952 conceived It as within their power and right 185 to maintain separate schools if it suits their policy. (pp. 44-45.) Then turning to what the Courts have said regarding segregation of public schools, Davis mentioned Plessy v. Ferguson, Cummlng v. Richmond County Board of Education. Gong Lum v. Rice, Slpuel v. Board of Regents, Gaines v. Canada. Sweatt v. Patter and McLaurin v. Oklahoma. He interpreted those cases and especially the Sweatt case as being decided solely on the basis of inequality and in no way modifying the doctrine of separate-but-equal. Again Davis had the benefit of the opinion of Judge Parker of the District Court regarding the law: 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. 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 the Courts. Members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics, (pp. 46-47) Davis followed with a vigorous attack: The Members of Congress, year after year, session after session, the members of state constitutional convention the members of state legislature, year after year and session after session, the members of the higher courts of the states, the members of the inferior criminal judiciary and members of this tribunal— what their number may be, I do not know, but I think it reasonably certain that it must mount well into the thousands, and to this I stress for your Honors that everyone of that vast group was bound by oath to support the Constitution of the United States and any of its amend ments— is it conceivable that all that body of concur rent opinion was recreant to its duty or misunderstood 186 the constitutional mandate, or was ignorant of the history which gave to the mandate its scope and mean ing? I submit not. (pp. 46-47) With a mixture of sarcasm, reasoning, and the quotation of opposing authorities, Davis sought to impeach the "expert" witnesses used by appellants to show the adverse effects of segregation on Negro children. He was succinct and at times devasting in his attack. I ran across a sentence the other day which somebody said who was equally as expert as Dr. Kroch in the "lingo" of the craft. He described much of the social science as "fragmentary expertise based on an examined presupposition," which is about as scientific language as you can use, I suppose, but seems to be entirely descriptive, (p.51) To buttress his argument that the issue of segre gation is a state legislative one and not within the jurisdiction of the Supreme Court, Davis declared that the states have segregated their schools in accordance with the wishes of their people. He again quoted the lower court on that issue: 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, (p. 5*0 To conclude his argument, Davis eloquently emphasized the desirability of local self-government in the federal system. Once more, your Honors, I might say, what underlies this whole question? What is the great national and federal policy on this matter? Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local 187 action Is competent? Is It not of all the activities of government the one which most nearly approaches the hearts and minds of people, the question of the educa tion of their young? Is it not the height of wisdom that the matter in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contract? I respectfully submit to the Court, there is no reason assigned here why this Court or any other should reverse the findings of ninety years, (pp. 5^-55) Thus ended the argument of the man who for many years was considered one of the truly great advocates before the United States Supreme Court. Smooth, correct, logical, concise— Davis used all the tools with consumate skill. The contrast between Marshall and Davis was apparent. Marshall used the saber with slashing effect while Davis used the foils and was obviously able to inflict hit after hit; Marshall was more emotional and earthy while Davis was punctilious, correct, and used his skills like a surgeon used a scalpel; Marshall's grammar in oral argument left something to be desired while Davis' language was beautifully exact. Whether one agreed or disagreed with Davis, the transcript revealed a most cap able attorney. He was a great technician. In a "mundane1 ' area of the law, more or less devoid of "emotional" issues, Davis would have been a formidable opponent. However, in the instant case, Davis was caught in the tide of a social and political revolution in the 188 United States. The Negro now demanded first class citizen ship for himself and his children. They sought justice, freedom, and rights basic in a free society. Though nebu lous concepts, the struggle for those rights has been the inflamatory banner of many revolutions— including our own. The time was right. Perhaps a court fifty years earlier would have accepted the clear, concise, and compelling logic of Davis. But in 195^, the Court was apparently ready to accept the clear and compelling logic of Marshall. His logic was supplemented by the facts of American life and peppered by his indignation with the status of the American Negro. REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS by Thurgood Marshall Marshall’s attack and rebuttal was blunt but dip lomatic: MR. MARSHALL: May it please the Court, so far as the appellants are concerned in this case, at this point it seems to me that the significant factor running through all of these arguments up to this point is that for some reason, which is still unexplained, Negroes are taken out of the main stream of American life in these states. There is nothing involved in this case other than race and color, and I do not heed to go to the back ground of the statutes or anything else. I just read the statutes, and they say, "white and colored." (p. 55) Marshall then countered Davis' argument that the question of school segregation is a legislative rather than a judicial question. He emphasized the fact that under our form of government it is within the jurisdiction of our 189 Courts to protect the rights of the minority or to decide If such rights can be protected. As to the appellees' argument that the statute and constitutional provision in volved was a reasonable exercise of the rights of the South Carolina legislature, Marshall said: I think we should also point out in this regard that when we talk about reasonableness, what I think the ap pellees mean is reasonable insofar as the legislature of South Carolina decided it to be reasonable, and reason able insofar as the people of South Carolina. But what we are arguing in this case is as to whether or not it is reasonable within the decided cases of this Court on the Fourteenth Amendment. As to this particular law in volved in South Carolina, the Constitutional provision and the statute— the Constitution, I think, was in 1895 — I do not know what this Court would have done if that statute had been brought before it at that time, but I am sure that this Court, regardless of its ultimate de cision, would have tested the reasonableness of that classification, not by what the State of South Carolina wanted, but as to what the Fourteenth Amendment meant. In the year 1952, when a statute is tested, it is not tested as to what is reasonable insofar as South Carolina is concernedj it must be tested as to what is reasonable as to this Court. (p. 57) Marshall then sought to refute Davis' criticism of appellants' expert witnesses, and emphatically stated that if appellees had their own "scientific" witnesses, the place to have produced such witnesses was the District Court during the trial of the matter. At this point, Justice Frankfurter interrupted and asked why he just couldn't take judicial notice of such other writings? After an answer by Marshall which was not too satisfactory, the Court stated: JUSTICE FRANKFURTER: That is a different point. I am merely going to the point that in these matters this 190 Court takes judicial notice of accredited writings, and It does not have to call the writers as witnesses. How to Inform the judicial mind, as you know, Is one of the most complicated problems. It Is better to have witnes ses, but I did not know that we could not read the works of competent writers. MR. MARSHALL: Mr. Justice Frankfurter, I did not say that it was bad. I said that it would have been better If they had produced the witnesses so that we would have had an opportunity to cross-examine and test their conclusions. (p. 59) Marshall then stated his opinion that In a "case like this that the only way that South Carolina, under the test set forth in this case, can sustain that statute Is to show that Negroes as Negroes— all Negroes— are different from everybody else." JUSTICE FRANKFURTER: Do you think it would make any difference to our problem if this record also contained the testimony of six professors from other institutions who give contrary or qualifying testimony? Do you think we would be in a different situation? (pp. 59- 60) Justice Frankfurter felt that the consequences of how you remedy a conceded wrong impinged on the question of whether or not it is a fair classification. In addition, Justice Frankfurter stated that "if it is written into the Consti tution, then I do not care about the evidence. If it is in the Constitution, then all the testimony that you intro duced is beside the point, in general." (p. 62) MR. MARSHALL: I think sir, that so far as the decis ions of this Court, this Court has repeatedly said that you cannot use race as a basis of classification. JUSTICE FRANKFURTER: Very well. If that is a settled constitutional doctrine, then I do not care what any associate or full professor in sociology tells me. If it is in the Constitution, I do not care about what 191 they say. But the question Is, Is It In the Constitution? Obviously Justice Frankfurter was concerned with the basic question: was segregation of school children in public elementary and high schools based upon racial origin a constitutional exercise of its powers by the respective states? He could not expect Marshall to point out a para graph in the Constitution which would indicate that segre gation of children on the basis of race would constitute a violation of the equal protection clause of the Four teenth Amendment. But he did seek justification for the contention by Marshall and others that segregation was violative of the Constitution of the United States. Appar ently Justice Frankfurter was not overly impressed with the testimony of expert witnesses. He was of the opinion that he could have reached this conclusion without the help of the so-called experts. Marshall's answers to these basic questions were not particularly clear. When dealing with rights not expressly set forth in the Constitution it is difficult to define or prove those rights. Marshall did make the point that "the type of evidence which we considered this Court to have considered in the Sweatt and McLaurin cases, to demonstrate that at the elementary and high school levels, the same resulting evil which was struck down in the Sweatt and McLaurin cases exists, for the same reason, at the elementary and high school levels, and I say at this moment that none of that has been dis puted." (p. 64) 192 Marshall was once again involved in the question of whether the problem was a legislative or judicial one, when Justice Reed inquired: JUSTICE REEB: In the legislatures, I suppose there is a group of people, at least in the South, who would say that segregation in the schools was to avoid racial friction. MR. MARSHALL: Yes sir. Until today, there is a good sized body of public opinion that would say that, and I would say respectable public opinion. JUSTICE REED: Even In that situation, assuming, then, that there is a disadvantage to the segregated group, the Negro group, does the legislature have to weigh as between the disadvantage of the segregated group and the advantage of the maintainance of law and order? MR. MARSHALL: I think that the legislature should, sir. But I think, considering the legislatures, that we have to bear in mind that I know of no Negro Legisla tor in any of these states, and I do not know whether they consider the Negroes side or not. It is just a fact. But I assume that there are people who will say that it was and is necessary, and my answer to that is, even if the concession Is made that it was necessary in 1895, it is not necessary now because people have grown up and understand each other. They are fighting together and living together. For example, today they are working together in other places. As a result of the ruling of this Court, they are going together on the higher level. Just how far it goes— I think when we predict what might happen, I know in the South where I spent most of my time, you will see white and colored kids going down the road together to school. They separate and go to different schools, and they come out and they play together. I do not see why there would necessarily be any trouble if they went to school together. JUSTICE REED: I am not thinking of trouble. I am thinking of whether it is a problem of legislature or of the judiciary. 193 MR. MARSHALL: I think, sir, that the ultimate author ity for the asserted right by an individual in a minor' ity group is in a body set aside to interpret our Con stitution, which is our Court. (pp. 66-67) Marshall ended his argument as follows: MR. MARSHALL: But the rights of the minorities, as has been our whole form of government, have been pro tected by our Constitution, and the ultimate authority for determining that is this Court. I think that is the real difference. As to whether or not I, as an individual, am being deprived of my right is not legislative, but judicial, (p. 68) Davis v. County School Board of Prince Edward County. Virginia” The above-entitled cause came on for oral argument on Wednesday, December 10, 1952 at 1:15 p.m. The entire Court was present and appearances of counsel for and on behalf of the appellants: Spottswood W. Robinson, III, and on behalf of the appellees: T. Justin Moore. THE CHIEF JUSTICE: Case No. 191, Davis, et al., against County School Board of Prince Edward County, Virginia et al. THE CLERK: Counsel are present. (p. 2) ARGUMENT ON BEHALF OF APPELLANTS by Spottswood W. Robinson, III Robinson's opening statement was clear, concise, Transcript of Oral Argument, Davis v. County School Board of Prince Edward County. Virginia. December 10, 1952. Unless otherwise indicated, all quotations in this section are from the transcript. 19 4 and well organized. His case came to the Supreme Court on appeal from the final decree of the United States District Court for the Eastern District of Virginia denying an injunction against the enforcement of the Constitution and laws of the State of Virginia requiring that white and colored children be taught in separate schools. The complaint in this case alleged that the original defendants maintained separate schools for white and Negro high school students residing in the County, but the public high schools maintained for Negroes was unequal to the public high schools maintained for white students in plant, equipment, curricula, and other opportunities, advantages, and facilities, and that it was impossible for the infant appellants to secure public high school opportunities, advantages, and faci lities equal to those afforded white children so long as the segregation laws are in force. The complaint therefore sought a Judgment declara tory of the invalidity of the laws as a denial of appellants' rights secured by the due-process and equal- protection clauses of the Fourteenth Amendment, and an injunction restraining the appellees from enforcing those laws or from making any distinction based upon race or color among the children attending the high schools of Prince Edward County. In their answer, the original defendants admitted that they were enforcing the segregation laws of the State, admitted that the Negro high school was inferior in plant and equipment to the two white high schools, but denied that it was otherwise unequal and denied that segregation in the public schools contravened any provision of the Federal Constitution, (pp. 2-3) One significant finding of the lower court was that the high school for Negroes was inferior to the white schools, not only in plant and equipment, but also in curricula and means of transportation. That court there upon ordered that appellees proceed forthwith to 195 provide the appellants with curricula and transporta tion facilities substantially.equal to those afforded to white students, and to proceed with all reasonable diligence and dispatch to remove the existing inequali ties by building, furnishing, and providing a high school building and facilities for Negro students in accordance with the program which the evidence for the appellees indicated would result in the availability for Negro students of the new Negro high school in September, 1953. Cp- 5) The District Court refused to enjoin the enforcement of the segregation laws or to restrain the appellees from assigning school space in the county on the basis of race or color. Since, in this case, evidence was introduced showing the deleterious effects of segregation on the Negro child and at the same time evidence having been introduced that segregation had no ill affects on the Negro child by appellees, the court decided that the plaintiff's evidence did not overbalance the defendants'. Additionally, since the court felt that segregation was "a way of life" in Virginia, and since the court further found no hurt or harm to either race, that ended its inquiry and it stated that "it was not for the court to adjudicate the policy as right or wrong, but that the Commonwealth of Virginia must determine for itself." (p. 6) Initially, Robinson attempted to place the Davis case in "what I consider to be its proper setting," (p. 7) by comparing its fact or legal position with other school segregation cases: Unlike Qebhart v. Belton, the Delaware case, this case does not present the situation of a finding of inequal ity of physical facilities and curricula coupled with 196 an Injunction against the continuance of segregation under these circumstances. In this case, the District Court made a finding of inequality of physical facilities and curricula and still refused to enjoin the segregation practice in the school system in question. Unlike Brown v. Board of Education, the Kansas case, this case does not present the situation of equal physical facilities and curricula coupled with a find ing of injury resultant from the fact of segregation itself. In this case, the facilities and curricula were found to be unequal, and the District Court erroneously, in our view, made a finding that no harm resulted to the student from the fact of segregation. Unlike Bolling v. Sharpe, the District of Columbia case, the appellants in this case did not concede an equality of physical facilities and curricula. But like in Bolling v. Sharpe and unlike the other State cases, we urge that State-imposed educational segrega tion is a denial of due process, as well as a denial of the equal protection of the laws. I submit that it is important to distinguish between two dissimilar approaches to the basic problem in this case. It has been urged that the segregation laws de rive validity as a consequence of a long duration supported and made possible by a long line of Judicial decisions, including expressions in some of the deci sions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling. This Court has not hesitated to change the course of its decision, although of long standing, when error has been demonstrated, and courts are even less reluctant to examine their decisions when it is plain that the conditions of the present are substantially different from those of the past. No court has ever considered itself Irrevocably bound into the future by its prior determinations. As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. 197 While this Court has permitted the States to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Consti tution must be met. Upon examination in the past, it has found such experimentation to be constitutionally wanting when predicated solely on the facts of race. (pp. 8-9) Robinson predicated his argument on two issues: first, whether the segregation laws of Virginia are invalid because they are violative of rights secured by the due- process and equal-protection clauses of the Fourteenth Amendment, and second, whether the lower court should have enjoined appellees from excluding the infant appellants from the superior secondary school facilities due to the fact that the physical facilities were not equal. One of the most important elements of oral argument before an appellate tribunal, is the need to clearly pre sent the issues. The advocate is then obligated to deal with the questions which he has posed. His failure to do so, may meet with the disapproval of the Court which may view his failure to deal with the issues raised as either evasion or ignorance of the issues. In this regard, Justice Reed was somewhat disturbed by Robinson’s failure to discuss adequately "due process." JUSTICE REED: You spoke of the fact that you depended, not only on equal protection, but due process. MR. ROBINSON: Yes, sir. JUSTICE REED: Did I hear you make a distinction be tween the two? 198 MR. ROBINSON: I would be glad to do so at the present time. JUSTICE REED: Is there a distinction, in your mind? MR. ROBINSON: I think that I can say this: Anything that due process will catch, I think equal protection will catch, in this area. But certainly a legislative enactment which makes a distinction based solely on race in the enjoyment of the educational program offered by the State, I think would be that type of arbitrary and unreasonable legislation which would be in violation of the due-process clause. JUSTICE REED: You could have a valid classification under equal protection; you could have a classification under due-process? MR. ROBINSON: That is correct, sir. JUSTICE REED: You do not make any point on that? MR. ROBINSON: It is also conceivable to me that you might have the other situation, though, by reason of the fact that I feel in this particular instance cer tainly the legislation is caught by the one or by the other. (pp. 27-28) Robinson’s explanation of the utilization of "due- process" as a basis for granting an injunction against segregation in this case could hardly be called adequate. To argue that segregation in high schools on the basis of race is the type of "arbitrary and unreasonable" legisla tion which would be in violation of the "due-process" clause was inadequate. It completely failed to explain or justify the application of that clause. He argued con clusions rather than the bases therefor. Robinson would have been in a better position had he omitted the issue rather than handle it in such a cursory manner. 199 One gained the impression from Robinson's presen tation that he was principally concerned with the inequal ity of physical facilities, thereby argument would, of course, bring his case directly under the separate-but- equal doctrine. For example, JUSTICE FRANKFURTER: Mr. Robinson, if I heard you right— and I was looking at your brief to clarify my impression— if you are right, this injunction is reversible because it violates the Gaines doctrine? MR. ROBINSON: I would submit, Mr. Justice Frankfurter, for the additonal reason— that is correct, sir. JUSTICE FRANKFURTER: Not for the additional reason. I should say it is for the prior reason. This Qourt ought not to pass on constitutional Issues bigger than the record calls for. MR. ROBINSON: Let me answer Your Honors question this way. I believe, and I intend to argue, that by reason of the physical inequalities and the inequalities in curricula which the District Court found and which were supported largely by uncontradicted testimony, that alone should have justified the issuance of an injunction which would have admitted these appellants to share the high school facilities of the County without regard to race, in other words, would have unsegregated the school at that point. JUSTICE FRANKFURTER: We have specific appellants here, specific plaintiffs and particular children, boys and girls, I take it— MR. ROBINSON: That is correct, sir. JUSTICE FRANKFURTER: — who want to get to a high school. MR. ROBINSON. That is correct, sir. JUSTICE FRANKFURTER: And you say that they ought to be allowed because they do not have adequate high school with equal facilities? MR. ROBINSON: I would answer the question this way. I do not know where they will go, sir. I do not mean 200 to imply that all of them can get in a white high school, because I know that they cannot. (pp. 10-11) In answer to further questioning by Justice Frankfurter, Robinson informed the Court of his concern for a possible temporary desegregation of the schools during a period of physical inequality. When the schools reached substantial equality in physical facilities, there would be a change and a re-imposition of the segregated status. But be that as it may, if their right to enjoy the superior facilities of public education depends on the existence or the nonexistence of inequality, then it seems very fair to me that there is no permanency in the administration of the schools, and there is no permanency in the status of these appellants. Any way we look at the situation, it means that if the facilities are unequal, you cannot segregate. If the scope of the decision is limited to that, if the facilities are equal, you can segregate; consequently, as the facilities change in that regard as equilibrium is disturbed by the variety of facts and circumstances present in any educational system, then under those circumstances we could have segregated or we have non segregated education. (pp. 11-12) It seemed that Robinson was seeking a permanent injunction on the theory that it would be extremely con fusing and ill-advised for constant change to occur wherein schools would be continuously segregated and desegregated as the Negro and white schools went out of "equilibrium1 ' in regard to physical facilities. I should like to urge upon Your Honors in this connection that what we sought in this case was a per manent injunction. It seems to me that we do not get it. If we are simply limited to that particular phase of the matter, it means, as I tried to emphasize here, that we are In a situation where we cannot depend on 201 anything. The schools may be unequal, if Your Honor please, tomorrow, and consequently we are shunted right on out. I submit that at least we get to the point, it seems to me, where the basis of decision must be something more than a basis which would permit of a shuttling of pupils back and forth into segregated schools and into an unsegregated system, something which would have no assurance, and something which I cannot conduce [sic condone] will be helpful, either to the school authorities or to the pupils involved. (pp. 1^-15) Robinson very briefly touched upon the constitu tional issue involved, namely, unlawful classification based on race. I have just said that on examination this Court had in the past found that legislation or other types of State activity, official activity, which were predi cated solely on the fact of race were unconstitutional. I was going to make reference to the decisions of this Court in the area of the ownership and occupancy of real property. . . . (pp. 15-16) At this point Justice Reed asked for Robinson's views regarding the purpose of Virginia's segregation laws. After relating a brief history of the statute and the constitutional provision of the State of Virginia, Robinson stated: On page k62 of the record, Dr. Dardin [a witness for appellants] characterized the problem before the court as a by-product, and a fearful by-product, of human slavery, and he went on to say that we are the inheritors of that system. I think from the historical viewpoint, there is much to sustain the position that the original notion behind the school segregation laws was to Impose upon Negroes disabilities which prior to the time of the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments they labored under. That is the only thing 202 that I can offer to this Court in a way of a Justifi cation. (p. 17) Robinson urged that the reasonableness or the unreason ableness of educational segregation per se at the elemen tary and high school levels had never been tested. "Its validity and previous decisions of this Court has been assumed to follow from its duration and acceptance over a long period of time" (p. 18). Robinson argued that: the duration of the particular practice has not been considered by this Court in the past to prevent re-examination of the problem. We had the same thing, for example, to come before the Court in the cases dealing with this problem at the graduate and profes sional levels, where it came here with a history of long duration; yet the mere fact that the practice had existed for many years, the mere fact that it had become a part of the community life, did not, in the judgment of the Court, estahlish its validity. . . . So it is our position in Virginia, on this parti cular score, that it should not be determined by the application of the normal constitutional standards, whether the legislation here involved meets the chal- lange of the Fourteenth Amendment, and we respectfully submit that upon such examination, they will be found to be lacking, (pp. 18-191 Robinson failed to pursue his reasons for challenging the constitutionality of the Virginia statute. Instead he gave the Court a detailed statistical account of how the physical facilities of the Negro and white schools were unequal. It was difficult to understand Robinson’s approach to the issue of segregation per se. Only briefly, on two or three occasions in the entire opening portion of his argument, did he even mention the constitutional aspects or 203 • prohibitions against segregation in public schools. Where he did refer to the constitutional issues, he stated con clusions instead of presenting the facts, logic, and law necessary to substantiate the conclusion. Robinson's argument on the segregation statutes was based principally on the separate-but-equal doctrine. He seemed to be attacking segregation in Virginia solely on the issue of unequal physical facilities and asked for a permanent injunction only because of the disruption of schools by the continuous changing from segregation to desegregation based on the periodic inequality of the physical facilities involved. This situation he argued would mean "that the Court is in the business of supervising the school system and is in there indefinitely." (p. 24) Consequently, we submit that this is a task for which the Court's machinery is not entirely suited, consequently the regulation or maintenance of constitu tional equality by an equalization decree embracing, as it does, the necessity that pupils and school authorities almost constantly stay in Court, should be avoided, if possible. (p. 25) Robinson argued in substance that the Court should reverse the lower court and cause a permanent injunction to be issued in order to save the Courts from the necessity of taking over a "regulation or maintenance of constitutional equality. . . ." It is apparent that the prearranged strategy and tactics of counsel for appellants called for Robinson to de-emphasize the basic constitutional issues involved in 20 4 these cases. Rather his role in the overall strategy must have been to demonstrate the unworkability and unwieldiness of the separate-but-equal doctrine in actual practice. ARGUMENT ON BEHALF OF APPELLEES by T. Justin Moore In accordance with good appellate argument, Moore promptly and succinctly stated the prime issue in the case, namely: Whether the mere fact of segregation by law is a denial of equal protection. Additionally, he pointed out the distinctive features of this particular case. First, there was a much fuller record. The preparation of the more complete record was motivated by the need to bring in witnesses whose testimony would conflict with andpossibly impeach appellants' expert witnesses regarding the emotional and psychological effect of segregated schools on Negro children. The second distinctive feature of this case was that the lower court found, contrary to the Kansas case, that the evidence did not prove that the Negro child was harmed on account of segregation in the public schools. The third element which was stressed by Moore was the "great impact that would result in Virginia from a sudden elimination of segregation." (p. 31)* And fourth, this case was distinctive in that the funds for the new Negro school, "are in hand, the buildings are going up, and the facilities will be equal by next September." (p. 32). 205 Moore then informed the Court how hard the defen dants worked to get a new high school for Negroes. He related that the people involved were trying to arrange a bond issue for that, but unfortunately, in April and May, there was a two-week strike called in the Negro school, which the Negro principal claimed that he could not control. The record indicates— and the matter was argued in the District Court— that the strike was really inspired by outsiders. However that may be, the strike came at a very unfortunate time. It lasted two weeks. But that absolutely put an end to any bond issue. (pp. 34-35) He stated that the funds for building the new Negro school were finally obtained from the Battle Fund, in Virginia and from the Literary Fund. Additionally, Moore noted that the ratio of Negroes to whites in this parti cular County was 52 per cent Negro and 48 per cent white but 60 per cent of the school population was Negro and 40 per cent white. Unquestionably, Moore's approach to the problems involved was carefully prepared. By mention of the school strike, which the principal "claimed he could not control," and which strike was allegedly fomented by outside agita tors, he struck directly at Justice Frankfurter's apparent trepidations voiced repeatedly in the prior case of Briggs v. Elliott as to what would happen if the Court desegre gated the public schools. Then by showing how hard and sincerely the people of Virginia worked to equalize its schools for both white and Negro school children, he 206 attempted to create sympathy for Virginia's cause. At the same time he endeavored to demonstrate that the require ments of the Plessy doctrine were met because the separate schools were being equalized. After the presentation of an excellent background (from an advocate's point of view) Moore then stated his basic issue: Whether separation by law is per se in vio lation of equal protection. He observed that John W. Davis, counsel for appellees in the South Carolina case, stressed primarily the legislative history of this issue. There is an equally important area, we believe, involving the legal precedents. Of course, all these cases come down finally to the questions as to whether this type of case falls over into the category of Gong Lum— really that is the closest case; Plessy v. Ferguson is, of course, its forerunner, but do they fall under the doctrine of Gong Lum or do they fall under the Sweatt v. Painter, and McLaurin; that is the real crucial question. I am not going to labor the point. Judge Parker has worked it out better than any of these other courts have. He has done that better, more fully, but you have got not only these statutes that have been passed, but this large body of decisions which certainly over a period of eighty years has recognized that the thing that is existing here in the South, particularly, as you saw from those sheets, is a thing that has be come a part of a way of life, as our court said in our case, in the South. It is plainly based on real reason, and if that is so, then there is no reason why the equal facilities, equal but separate facilities, doctrine should not apply. What the Court held in Sweatt v. Painter, and in McLaurin, was that on the facts, that at that level equality could not be provided, (p. 42) 207 Moore approached this Issue In a novel, realistic, and workmanlike manner. He had the benefit of the testi mony of expert witnesses who testified for appellees In this case that "there are great differences at high school level on this question as to whether equality of not only facilities and curricula and all can be afforded as com pared with the graduate and professional schools" (p. 43)* After laying a foundation which demonstrated the expertness and qualifications of his witnesses, Moore argued: Now, there the gist of their testimony was that equality of opportunity really could be provided and, possibly better provided at the high school level with separate schools provided that you had equal facilities, just as good teachers, just as good curri cula, and all the facilities that go along with it. On that basis there is no occasion to approach this matter from the standpoint of Sweatt v. Painter, and McLaurin. It is shown right here definitely— and that is what Judge Bryan's opinion rests on— it shown by evidence that at this level you have not got the pro blem that exists at the graduate and professional school level. (p. 44) Moore's argument could not be cast aside lightly. In McLaurin and Sweatt (graduate and law school cases^ the conditions necessary to effect equality were so stringent as to make the separate-but-equal doctrine all but inap plicable. At that educational level, the duplication of a substantially equal graduate or professional school with equal opportunities and facilities was not only financially prohibitive but almost impossible to achieve from the point of view of preparing for professional life. On the 208 other hand, appellees' experts were of the opinion that separate-but-equal facilities in elementary and high schools would cause no injury or damage to the Negro student in any way comparable to that which might be suf fered at the higher educational levels. Thus, he argued, there is no question but that the Plessy doctrine could be made applicable to elementary and high school levels to the exclusion of the doctrines laid down by Sweatt and McLaurin. By way of emphasis, Moore then repeated a portion of his early statements that expert witnesses for appellees met "head-on" the question of injuries to Negro children on account of segregation. Now, in the Virginia case, we meet head-on on that issue. It may be, as some of the questions from Your Honors have indicated, that, perhaps, all of that testimony may be irrelevant. If we are right in our first proposition that Gong Lum is still the law then, perhaps, all that testimony may be irrelevant. But we did not want to take any chances in the Virginia case. We knew that there was this great body of expert opinion which was in conflict with that which had been presented without conflict in Kansas and in South Carolina, and we presented it. So that if, as a fact, that issue becomes important, we have met it head-on and we have a finding of the Court in our favor. (p. 46) Contradicting appellant's charge that the segrega tion laws of the State of Virginia rested solely on racial prejudice, Moorepresented considerable financial data allegedly demonstrating that Negro schools were receiving huge amounts of money from the State and local governments of Virginia— and in some cases far in excess of the popu lation ratio. 209 In view of all that, the Court could not find that this program, so important to the welfare of the people of Virginia, rested on prejudice, but it represented a way of life, and it represented a firm determination on the part of the people of Virginia, because they were able to bear the burden better than many of the Southern states, but they were fully committed in good faith to provide for the Negro child just as good education as a white child could get, and they were doing it and, therefore, the Court found that that program rested on prejudice. Now, isn't that of some importance in this matter when this matter reaches the stage of this trial Court? The court said that they found that the program rested neither upon prejudice nor caprice nor upon any nebu lous foundation but rather the proof is that it de clares one of the way of life in Virginia. (pp. M9-50) Moore contended that both races benefitted from separate school facilities. His expert witnesses had testified that Negro and white children allegedly get "better education at the high school level in separate schools ..." assuming equal facilities for each. Moore stated that the children of both races would get a better education because of the possible friction that might arise between the races if they were in unsegregated schools and the eighty year tradition of segregation in Virginia justified this conclusion. Justice Reed was some what skeptical of the argument: JUSTICE REED: What am I to draw from this argument that you are making now? MR. MOORE: I think you are to draw— evidently I have not been successful, as successful as I’d hoped. JUSTICE REED: Perhaps I should express my question a little more fully. 210 MR. MOORE: Yes. JUSTICE REED: What if they [the trial court and the experts] had decided to the contrary? MR. MOORE: You mean the trial court? JUSTICE REED: The trial court; and your experts had not been so persuasive as they were, and there were other experts, and the trial court had accepted their conclusion that this was detrimental and was injurious to the ability of the Negro child to learn or of the white child to learn, and created great difficulties, what difference does it make which way they decided this particular question? MR. MOORE: I think you can argue the matter two ways, your Honor. I think, in the first place,you can argue that the difference, for instance, in the Kansas find ing and the Virginia finding point up how important is the legislative policy that is involved, that Mr. Davis talked about so much this morning. It just illustrates how it really is a policy question. JUSTICE REED: I can understand. But is it your argu ment that there are two sides to it? MR. MOORE: It illustrates that there are two sides to it, and it points up that the real crux of the whole matter is that there is involved fundamentally a policy question for legislative bodies to pass on, and not for courts. Now, in the second place, it emphasizes, I hope, that the historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made. JUSTICE REED: There has been a legislative determina tion in Virginia? MR. MOORE: That is right, sir. JUSTICE REED: That the greatest good for the greatest number is found in segregation. 211 MR. MOORE: That Is right; with these law makers continuously since 1870 doing their Job to do their best In the general welfare, (pp. 56-57) Again, Moore exhibited great skill and deftness In his handling of Justice Reed’s questions. It was the argu ment of counsel for appellees throughout that the question before the Court was a "legislative" and not a judicial one. The objective of the argument was obvious: if segre gation on a racial basis was to be retained and maintained in schools and other public places, it could take decades before either the state or federal legislatures acted on the issue. Certainly, if left to those state legislatures where segregation of white and Negroes is a "way of life," then perhaps desegregation legislation could be blocked ad infinitum. The Court, on the other hand, could deseg- gregate public schools throughout the nation with a single decree. Moore answered Justice Reed’s questions obliquely and then very quickly turned his answer into a "safer" and more advantageous area, namely, that the crucial question was a policy or legislative issue rather than a judicial one. Sometimes a questioning Justice is satisfied by this kind of answer and at other times he will cross-examine counsel much more closely and attempt to force him to answer his questions directly. Moore's "legislative" argument aroused the curiosity of Justice Jackson: 212 JUSTICE JACKSON: Suppose Congress should enact a statute, pursuant to the enabling clause of the Four teenth Amendment, which nobody seems to attach any importance to here, as far as I have heard, that segre gation was contrary to national policy, to the national welfare, and so on, what would happen? MR. MOORE: Your Honor, we thought of that in here, and that is a big question, as you realize. JUSTICE JACKSON: That is why I asked it. MR. MOORE: Our view of the matter is that it should not be held valid in this Court; that the only effective way to accomplish that is to be done through an act of Congress, which would be by amending the Constitution. JUSTICE JACKSON: You think that the Fourteenth Amend ment would not be adequate to do that? MR. MOORE: We do not believe so, and I have not the time and I have no desire to engage in this very inter esting discussion that Justice Burton and Justice Frankfurter engaged in, as to whether there is any difference through the passage of time and through pro gress which has been made between the commerce clause and the Fourteenth Amendment. We believe, as Mr. Davis pointed out this morning, I think touching the same point, although very slightly, that the Fourteenth Amendment here should be viewed in the light of what was really intended, and what was understood by Congress, and by the legislatures at that time. JUSTICE FRANKFURTER: But Justice Jackson's question brings into play different questions and different con siderations, Mr. Moore, because the enabling act of the Fourteenth Amendment is itself a provision of the Fourteenth Amendment; patently Congress looked forward to implementing legislation; implementing legislation patently looked forward to the future, and if Congress passed a statute doing that which is asked of us to be done through Judicial decree, the case would come here with a pronouncement by Congress in its legislative capacity that in view of its powers, this was within the Fourteenth Amendment and, therefore, it would come with all the heavy authority, with the momentum and validity that a Congressional enactment has. MR. MOORE: That may be so, Your Honor, but that is another case. JUSTICE FRANKFURTER: That is a good answer. MR. MOORE: Yes, it is another case. JUSTICE JACKSON: I wonder if it is. I should suppose that your argument that this was a legislative question might have been addressed to the proposition that the enforcement of the Fourteenth Amendment, if this were deemed conflicting, might be for the Congress rather than for this Court. I would rather expect and I had rather expected to hear that question discussed. But you apparently are in the position that no federal agency can supersede the state’s authority in this matter which, I say, you have good precedent for arguing. MR. MOORE: Your Honor will appreciate that you have asked a question that to try to answer adequately requires a lot more time than I have got. (pp. 59-60) Justice Jackson had asked several very difficult questions. He was apparently concerned with the issue of whether or not the question before the Court was a legis lative or a judicial one. Certainly the problem was an important one. If this were a judicial question then the Court would have Jurisdiction to decide the cases one way or another, if a legislative question, then the Court could simply say that it could not make a ruling and that it was up to the legislatures either of the federal government or of the state governments to enact legislation desegregating the public schools. As noted earlier, the advocate has a limited amount of time and must carefully pick his issues. Moore undoubtedly did an outstanding job presenting his client's case. However, perhaps one of the major flaws in 214 the presentation of his case was his failure to spend more time on the issues raised by Justice Jackson's questions. A Justice or the Court is usually not satisfied with the answer: I'm sorry, your Honor, that is a big question and I don't have time for it. Counsel should try, however briefly, to give some consideration to a question obviously important to the Court. Moore shared part of the time for the argument on behalf of appellees with Judge Almond, the Attorney General of the State of Virginia. ARGUMENT ON BEHALF OF APPELLEES by J. Lindsay Almond, Jr. From an analysis of the arguments thus far described, it was readily discernible that the attorneys for appellants and appellees planned their arguments in such a manner as to cover as many facets of the problems and issues involved as possible without overlapping. Almond's portion of the argument was somewhat unique. Apparently his responsibility in the presentation of appellees' case from Virginia was to discuss the history of the public school system in Virginia; confess that Virginia had seriously neglected the Negro school child for many decades but that Virginia was now spending very large sums of money to equalize physical facilities, curricula, teaching qualifications, and transportation; and finally he warned of the dire consequences of desegregating the public schools in Virginia. He did not directly or even indirectly allude to the constitutional issues involved in the cases generally or in the Virginia case in particular. Perhaps Almond was of the opinion that the Court might infer that since the physical facilities of the public schools of Virginia were rapidly being equalized, Virginia should escape desegregation under the Plessy doctrine. Almond pointed out that in the Underwood Convention of 1870, when the Underwood Constitution was adopted, the question arose whether or not a provision should be written into the Constitution requiring that the schools be mixed and oper ated by the state and the localities jointly on a mixed basis. He stated that there were 22 Negro members in that Convention, and 11 of them voted not to have mixed schools in Virginia. It was at that time decided that the State of Virginia would have separate schools for the races. He suggested that the Convention was influenced by the fact that the Congress of the United States had provided for separate schools in the District of Columbia. He argued that the Congress had decided to have separate schools because of the feeling that had grown as an aftermath of that great struggle between the States, and because of the bitterness that ensued, unfortunately— it was determined in Virginia, not as a badge of inferiority, not to place the Negro man or the Negro child in the position where he could never rise to take his place in a free society, but the only way that we could have a free public school system was on a separate basis. (pp. 65-66) 216 Almond wanted to make certain that the Supreme Court knew that the people of Virginia were sincerely and honestly sorry for neglecting the Negro child in education and were doing their best in good faith to remedy that situation. Sad to relate, I am ashamed to say, that during many of those years of the past we have been grossly neglectful of our responsibility in bringing about equal facilities for the Negro race in Virginia. With that undertaking, our people have come to believe and to know and to feel as a moral proposition, if Your Honors please, that the only position we can take, the one that is morally defensible is that they are entitled to equal facilities, there has been.launched this great program in Virginia, appropriating millions of dollars and,Mr. Moore has pointed out, at this time we are spending more for facilities for Negro children than we are for whites, and we should do it because we were laggards in the years past in doing what we should have done. (pp. 66-67) In conclusion, Almond warned that a forced desegre gation of schools in Virginia could lead to dire conse quences . . . . our people, deeply ingrained within them, feel that it is their custom, their use and their wont, and their traditions, if destroyed, as this record shows, will make it impossible to raise public funds through the process of taxation, either at the state or the local level, to support the public school system of Virginia, and it would destroy the public school system of Virginia as we know it today. That is not an idle threat. THE CHIEF JUSTICE: General, in what way will it destroy it? MR. ALMOND: It will destroy it, Mr. Chief Justice, because we must have— it is a costly proposition— money with which to operate the public school system at both the state level and the local level, and the only source of income, of course, is the source of taxation at the state and local level, and bond Issues at the 217 local level, and the people would not vote bond Issues through their resentment to it. I say that not as a threat. . . . to make such a transition, [desegregation] would undo what we have been doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep. (pp. 69-71) REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS by Spottswood W. Robinson, III In rebuttal, Robinson hit harder and more bluntly on the basic issue of Negro rights. . . . after the Civil War, and even after the Negro was affirmatively granted full and equal citizenship by the Thirteenth and Fourteenth Amendments, and even though his right to sufferage was given protection by the provisions of the Fifteenth Amendment, the white South was not content with this Constitutional change. Consequently, we had the so-called period of the Black Codes which were a body of laws which were expressly intended and indeed did accomplish the disability of the Negro. Examination of the records of the Constitutional Con ventions of the Southern States during the period that legislative education of segregation has its beginning, is, . . . a reliable indication that the real basis of this legislation was not what it has been stated to this Court it is, but rather that the segregation laws themselves were intended to, and have, in fact, in Virginia accomplished, a matter which I shall get to in Just a few minutes— were intended to limit the educa tional opportunities of the Negro, and place him in a position where he could not obtain in the state’s educational system opportunities and benefits from the public educational program equal to those which flowed to white students, (pp. 72-73) Justice Jackson was obviously still bothered by the fact that counsel had failed to deal with the constitu tional question of whether or not the matters involved were 218 legislative or judicial ones. JUSTICE JACKSON: I hope you will take time enough before you finish to tell me what your position is about the provision of the Fourteenth Amendment, that Congress passed appropriate legislation to enforce it, and what effect, if any, it has on these cases. MR. ROBINSON: That are now before the Court, sir? JUSTICE JACKSON: Yes, cases of this character. MR. ROBINSON: I will be glad to do that, Mr. Justice Jackson, right now. I disagree with counsel for the appellees that Congress does not have full power under Section 5 of the Four teenth Amendment to enact legislation that would out law segregation in state public schools. But I do feel that insofar as the present cases are concerned that has relatively little merit. In other words, I do not feel that the mere fact that under the authority of Section 5 of the Fourteenth Amendment, Congress could enact legislation which would settle this problem would in any way encroach upon the jurisdiction of this Court, if, as a matter of fact, a violation of the Constitution has been shown. JUSTICE DOUGLAS: Has the Court ever held that the Fourteenth Amendment is not executed unless Congress acts? MR. ROBINSON: No, I do not think so. There is a large area of the law which has been deve-. loped by this Court in which the decision has rested upon the provisions of the due process and equal pro tection clauses, and in a few Instances of the privi leges and immunities clause where there was not any implementing legislation by Congress. As I understand the theory, particularly as it came as a consequence of the Civil Rights cases, that authority was there that Congress could exercise, If it desired to do so, but the position which we urge upon the Court is the mere fact that Congress has not done It will not preclude this Court from deciding constitu tional questions. 219 JUSTICE REED: But If segregation Is not a denial of equal protection or due process, legislation by Congress could do nothing more except to express congressional views, and wouldn't that be decisive? MR. ROBINSON: Yes I am Inclined to~ JUSTICE REED: So you would be forced to decide whether or not segregation per se comes under that question. MR. ROBINSON: Of course, that Is our position here, sir. JUSTICE FRANKFURTER: The Fourteenth Amendment Is not unlike, in some aspect, the commerce clause. There are many things that the states cannot do merely be cause the commerce clause exists. There are many things that a state can do until Congress steps In. MR. ROBINSON: cumstances— JUSTICE REED: Amendment. MR. ROBINSON: JUSTICE REED: Amendment. That is right, sir. Under those cir- The state cannot violate the Fourteenth I beg pardon? The state cannot violate the Fourteenth MR. ROBINSON: That is right, and I was just about to observe that it cannot violate the commerce clause either. JUSTICE FRANKFURTER: We would not be arguing for ten hours if it is clear that this is a violation of it. We do not argue for ten hours a question that is self- evident . MR. ROBINSON: I understand, sir. (pp. 75-79) After a comparatively inconclusive discussion with the Chief Justice, Robinson concluded his argument. 7 Bolling v. Sharpe1 On Wednesday, December 10, 1952, the above cause came on for oral argument at 3:30 P.M. Appearance on be half of petitioners: George E. C. Hayes, and James M. Nabrit, Jr., and on behalf of respondents: Milton D. Korman. THE CHIEF JUSTICE: Number 413, Bolling, et al., versus C. Melvin Sharpe, and others. All right, Mr. Hayes. (p. 2) ARGUMENT ON BEHALF OF PETITIONERS by George E. C. Hayes Arguments in this case were predicated on a legal and factual situation which differentiated it from the other four cases involved. First, this matter originated in the District of Columbia and not in a state. Therefore, the Fourteenth Amendment, which is applicable to the states, is not relevant in Bolling v. Sharpe. Instead, the argu ments of petitioners were necessarily based on the "due process" clause of the Fifth Amendment of the Constitution of the United States since the District of Columbia is under the Jurisdiction of the federal government. Since the Fifth Amendment of the Constitution does not contain an 'fequal protection" clause as does the Fourteenth Amendment, 7 Transcript of Oral Argument, Bolling v. Sharpe, December 10, 1952. Unless otherwise indicated, all quota tions in this section are from the Transcript. 221 a somewhat different legal problem was involved. The Supreme Court noted this difference in its decision. The legal problem in the District of Columbia is some what different, however.,, The Fifth Amendment, which is applicable in the District of Columbia, does not con tain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always Interchangeable phrases. But, as this Court has recognized, discrimination may o be so unjustifiable as to be violative of due process. Although counsel for the Negro children urged several other grounds, such as Article VI, Clause 2 of the Constitution, Sections of the United States Code and the Charter of the United Nations, the Court obviously predicated its decision on the "due process" clause of the Fifth Amendment. This case is further differentiated from the others because there was no trial, no evidence introduced, no factual questions as to physical facilities or the psycho- logical-sociological effects of segregation on the Negro child. Stripped of the issues of fact raised by the other cases, Bolling specifically and solely presented the ques tion as to whether segregation was unconstitutional per se. There are no factual questions as to facilitiesj we raise no issues with respect to facilities. Our proposition is baldly as to whether or not the respondents have the power, the statutory or o Bolling v. Sharpe. 3^7 U.S. ^97. 222 constitutional power to deny to these pupils admission to the Sousa Junior High School. (p. 3) Immediately after Hayes’ very brief, pointed Intro duction of his case, the first major contention of his argument was elicited by several members of the Court: that no District of Columbia statute pertaining to schools made racial segregation mandatory. MR. HAYES: I want to call Your Honors' attention to the fact, at the very outset, that these statutes, contrary to the statutes to which your Honors have listened for the last two days, nowhere, in and of themselves, require segregation. It, to our mind, is a matter solely of interpretation of these statutes as to whether or not segregation is required. Our opponents take the position that these statutes do require It. JUSTICE FRANKFURTER: Suppose we do not agree with your construction of the statute? Is that the end of the case? MR. HAYES: No, your Honor, that is not, because, if your Honors were to determine that our construction of the statute was incorrect, and that by so much these statutes require segregation, we would then take the position that any such requirement is beyond the power of the Government to announce, and we would rely upon that for decisions of this Court as making that an impossibility. JUSTICE FRANKFURTER: So your argument is that as a matter of construction this is not mandatory, but Just exercising discretion by the educational authorities? MR. HAYES: That is right, sir. JUSTICE FRANKFURTER: And that in construing it, I suppose, that we should take into account that possibly a serious constitutional question is involved, even if on the face of it it does not yield to the construc tion that you argue; but you argue, in the third place, that if one cannot escape the constitutional question, then you assail it? 223 MR. HAYES: That is correct, sir; that is exactly our position, Mr. Justice Frankfurter, (pp. *J-5) The Chief Justice elicited information from Hayes indicating that Congress (which is the legislative body directly responsible for the administration of the District of Columbia) was undoubtedly aware that appropriations were being made for separate Negro and white schools. Hayes took the position that though Congress was aware that it was appropriating money for segregated schools, this fact did not make their actions constitutional or unconstitutional. Hayes’ considerable skill in the "give and take" between counsel and the Justices was nowhere better demon strated than in his next exchange with Justice Frankfurter. As previously noted, the Justice's many-faceted agile mind examined, analyzed, and continuously tested counsel's argu ments. Counsel had to meticuously guard against the care less word, statement or answer. JUSTICE FRANKFURTER: Mr. Hayes, may I ask one other question? MR. HAYES: Yes, Mr. Justice Frankfurter. JUSTICE FRANKFURTER: Do I understand you to say that this legislation is not mandatory, but permissive? MR. HAYES: If at all, it would be nothing but permis sive . JUSTICE FRANKFURTER: Wouldn't you, in your point of view, be attacking the constitutionality of legislation even if Congress authorizes it? 224 MR. HAYES: No, your Honor, because from our point of view we take the position— if I stated it was permis sive, then I am in error— we take the position— that this language is neither mandatory nor permissive. (pp. 7-8) Hayes corrected an error which undoubtedly developed as a result of a momentary lapse. If he argued that the District of Columbia statutes were "permissive" and allowed the administrators of the school system of the District of Columbia to segregate the schools in their own discretion, then he would have destroyed his first contention, namely, that the statutes were neither mandatory nor permissive. He quickly recovered his position by a short and candid statement of error which is a cardinal rule in oral advocacy. Certainly attempting to cover error is only to compound it. Justice Frankfurter continued his attack: JUSTICE FRANKFURTER: You say this [the statutes] does not even authorize it [segregation]? MR. HAYES: That is right, sir. JUSTICE FRANKFURTER: And you say for how many years has the District been acting without authority? MR. HAYES: We do not say without authority; we say that the fact that they acted with knowledge does not mean that the statute gives the authority. JUSTICE FRANKFURTER: If the statute does not give the authority, then it was ultra vires [beyond the power of a corporation] for the District to have been doing what they have been doing; is that right? MR. HAYES: No, if your Honor please, because our position is that when the District recognizes that a situation exists, and when they appropriate for the sake of the statement, to an existing situation, that that does not mean that they themselves are given the authority nor does it mean that they are holding that 225 it is mandatory, and this Court— JUSTICE FRANKFURTER: Still somebody must have been doing something lawlessly for a good many years; is that it? MR. HAYES: If your Honor says lawlessly, perhaps, I cannot go along with the idea of lawlessness, but it has been done without Constitutional authority, I do say that. JUSTICE FRANKFURTER: Somebody has been asleep as to the illegality of what has been done? MR. HAYES: No, I would not say asleep as to illegality. I say rather— JUSTICE FRANKFURTER: If I may say so, I am in deep sympathy with you in not trying to invalidate legisla tion if it can be dealt with otherwise. But I find a little difficulty in seeing how we can fail to reach the validity of this legislation unless you say that what has been done by the District authorities has been done, if not lawlessly, then without authority of law. How about that, would you accept that? MR. HAYES: We would say, sir, if this Court were to determine that what has been done up to this time has been done validly, that then for the first time this Court has had the opportunity to say, "No, this is not the proper way." We say that this is the opportunity for this Court to say that any such attempt as this, based solely on the question of race or color, is not within the Constitu tion. JUSTICE FRANKFURTER: Hereafter you have no lawful authority to do this, but we do not care about the past. MR. HAYES: I would not want your Honor’s statement to Indicate that we do not care about the past, but for the first time we have had the opportunity to pass upon it, and we frown upon it. (pp. 8-10) Hayes was finally able to escape the Court's inter rogation and proceeded to state his second and perhaps most fundamental argument: That segregation of schools in the 226 District of Columbia on a racial basis Is a denial of "liberty" under the ’ due process" clause of the Fifth Amend ment . He argued that the Federal Government has a right to legislate for the District of Columbia but In so acting, they "cannot do It and violate one’s constitutional right." (p. 10) This Court has seen fit to pass upon rights which come within the purview of the due process clause of the Fifth Amendment, and have explained and expressed what the word "liberty" means, and this Court has seen fit to Indicate and Incorporate In that word "liberty" things which we believe point out the way as to what should be done in this instance. Governmental restrictions on the right to teach a foreign language, the right of a parent to send his child to a private school, the right for them to acquire knowledge, the right of the parents and pupils to a reasonable choice with respect to teachers, curricula and textbooks, the right of parents to secure for their children the type of education which they think best, and which is not harmful, have been held by this Court to be fundamental educational rights pro tected from arbitrary Government action by the due process clause of the Fifth Amendment, (pp. 10-11) Two issues concerned Justice Reed and Chief Justice Vinson: First, were the schools in the District of Columbia segregated on a "racist" basis, or were there other reasons for such segregation? Second, why did the Congress which enacted the Fourteenth Amendment also in effect, segregate the schools? Or, was the policy of segregation in the schools of the District of Columbia a result of the Congress’ own interpretation of the constitutional amendments? Add ressing himself to the first question, Hayes declared: 227 MR. HAYES: I think, if your Honor please, that unques tionably the answer must be that legislation of this character was pointed solely at the Negro, and that it was done purely and for no other reason than because of the fact that it pretended to keep for him this place of secondary citizenship. I think it could have no other conceivable purpose. I have been concerned— JUSTICE REED: You do not think that it had any rela tion to these prior considerations [any alleged racial difficulties that might arise]? MR. HAYES: I do not think it had the slightest rela tionship to that, if your Honor please; I do not think anyone can pretend in this jurisdiction that it has any such purpose because this question of the schools, if your Honor please— this is the only governmentally constructed situation that has as its basis segregation in the District of Columbia, the only one, and to us it is entirely inconceivable and inconsistent that under those circumstances for any conceivable reason, that the argument can be had that it is necessary on account of any alleged difficulties that might arise. This Court has seen fit to say that any legislation based on racism is immediately suspect. That is what this Court has said. In the Hirabayashi case^ this Court said that legisla tion of this character is suspect, and immediately that Q ^"Distinctions between citizens solely because of their ancestry are by their very nature odlus to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. "Except under conditions of great emergency a regu lation of this kind applicable solely to citizens of a par<- tlcular racial extraction would not be regarded as in accord with the requirements of due process of law contained in the Fifth Amendment. We have consistently held that attempts to apply regulatory action to particular groups solely on the basis of racial distinction or classification is not in accordance with due process of law as prescribed by the Fifth and Fourteenth Amendments. ..." Hirabayashi v. United States. 320 U.S. 8l, 100, 111, (19W T . 228 It Is suspect we take the position that the burden then comes upon the Government to show as to why under those conditions any such thing should be allowed. We throw down that challenge to our friends on the other side, to Indicate why this should be done If there be any purpose other than pure racism. If there be any answer other than It Is purely on account of color, then we ask them to Indicate to us what that situation Is. (pp. 13-1*0 In answer to the second Issue raised by Chief Justice Vinson as to the state of mind of the Congress which passed the Fourteenth Amendment and yet failed to desegregate the schools In the District of Columbia, Hayes expressed the opinion that the failure, of Congress to act on the question of racially segregated schools was not done just to punish the Negro nor did It necessarily reflect their interpretation of the meaning of the Fourteenth Amend ment. Rather, he stated, It was done as an expedient; it was done because, as a matter of fact, at that time it seemed for them, I presume, an expedient thing not to press for this particular thing, but rather to allow the amendment to go through and, as I say, I think It Is for that reason expressly that they put nothing into it other than what they did. (pp. 16-17) After a very brief but forceful statement that segregation in the public schools was an unlawful classifi cation, using all of the arguments of other counsel for appellants regarding classification, Hayes entertained "one more" question from Justice Frankfurter. The "one more" question from Justice Frankfurter turned into several pages of dialogue. 229 JUSTICE FRANKFURTER: Mr. Hayes, before you sit down I would like to put to you a ouestion because of the can dor with which I know you will answer. I do not sup pose that anybody could deny that this legislation, all these enactments, concern drawing a line, drawing a color line. I suppose that is what this is all about? As to motives, the devil himself, as some one wise man said some time ago, "knoweth not the mind of man." But I Just want to ask you whether it is your position that the Fourteenth Amendment or the Fifth, for your purposes, automatically invalidates all legislation which draws a line determined because of race? I do not want to have trouble tomorrow or the day after tomorrow, but one has to look ahead these days. I wonder whether you would say, right off from your analysis of the Constitution, that marriage laws relat ing to race are ipso facto on the face of things, unconstitutional? MR. HAYES: I would say to your Honor, in answer to the first question as to whether or not in my opinion— JUSTICE FRANKFURTER: Because I need hardly tell you there is a good deal of legislation in this country drawing a line in connection with it. MY HAYES: Oh, yes, I am aware of that, sir. But I think that the problem is an entirely different one. With respect to the first part of your query as to whether or not I think automatically it becomes— JUSTICE FRANKFURTER: I mean that that denial to the states and to the Congress of the United States and to the District is written in by plain implication of the Fourteenth and Fifth Amendment, that is what I want to know. MR. HAYES: I want to say my answer to that is this, if your Honor please: I think that the very purpose of this Court is the very answer to that question. I think that this Court is called upon with that question now properly posed to make the answer. JUSTICE FRANKFURTER: You mean as to schools? MR. HAYES: Yes, sir; that Is what your first question I thought, was addressed to. 230 JUSTICE FRANKFURTER: Yes. MR. HAYES: I answered that by saying as to schools this Court is called upon to say that this sort of thing cannot happen because it is a violation of the due process clause of the Fifth Amendment, and the due process clause of the Fifth Amendment does not lend itself to any substantial proposition. You can have substantial equality but you cannot have substantial liberty. JUSTICE FRANKFURTER: Is that because no legislation which draws any line with reference to race is auto matically outlawed by the Fifth and Fourteenth Amend ment? So that takes you over— I am violating my own rule against posing hypothetical cases and, particu larly, one that is as full of implications as laws relating to the marriage laws involved, but I think one has to test these things to see what is the prin ciple which you are invoking before this Court. It is all-embracing, is it the all-embracing principle, that no legislation which is based on differentiation of race is valid? MR. HAYES: I am invoking rather the principle which I think this Court involved in the Hirabayashi case when this Court said that legislation based upon race is immediately suspect; that is what I am invoking. JUSTICE FRANKFURTER: Well, that is a very candid and logical answer. That simply means that it can be valid. It is not an absolute prohibition, but good cause must be shown or a great cause must be shown for the rule. (pp. 17-20) As in his earlier dialogue with Justice Frankfurter, Hayes again clearly exhibited a dexterous skill. Certainly a quick and deft mind is a basic necessity in handling this kind of questioning. But of equal or even greater impor tance are experience and preparation. Justice Frankfurter .lustlfiably sought to involve Hayes in an analysis of the scope and breadth of his basic contentions. In this regard, he used as an example, the miscegenation statutes, the marriage laws involving race. Hayes did not once comment on the miscegenation statutes, although Justice Frankfurter on two or three occasions referred to those laws. Undoubtedly Hayes was fully aware that he could have raised a "hornet's nest" by getting into such an important, emotion-packed collateral issue. This question could take him far from the main issue which was segregation in public schools. Hayes answered the question by reiterating one of his basic arguments: As the Court held in the Hlrabaya- shl case, legislation based on race is immediately suspect. Unless some great and countervailing interest dictated otherwise, race should not be a basis upon which to clas sify. Although Hayes avoided even mentioning the marriage laws, Justice Frankfurter was apparently satisfied and commended Hayes for his candor and logic. After making clear to the Court that he was stand ing on the due process clause of the Fifth Amendment, Hayes then turned the argument over to his co-counsel, James M. Nabrit, Jr. ARGUMENT ON BEHALF OF PETITIONERS by James M. Nabrit, Jr. After re-stating the contentions argued by Hayes, Nabrit emphasized one of the important elements which differentiated this case from the other four involved in the School Segregation Cases. 232 Now, it would appear to petitioners that it is necessary also for this Court to consider the fact that we are not dealing with the State of South Carolina, we are not dealing with the State of Virgina, the State of Delaware^ or the State of Kansas. We are not here concerned with those oversensitive areas of state and federal relation. That is not involved in this case. We are not involved in this case with the question of the sensitiveness of states with a projection of federal power. We are concerned here solely with the question of the relationship of the Federal Government to its citizens. It might be assumed as the basis for our approach to this problem that we go back and look at something of the history of our Constitution. We know that when the Constitution was adopted, there were provisions in there which made it possible for us to have an institu tion of slavery. (pp. 22-23) Irr this regard, Nabrit illustrated the legal position of the Negro prior to the Civil War by the holdings of the Dred Scott case. He contended that the Thirteenth, Fourteenth, and Fifteenth Amendments together "would appear to us to have removed from the Federal Government any power to impose racial distinctions in dealing with its citizens'1 (p. 23). Further, I would say this, that after the citizenship that was conferred under the first clause of the Fourteenth Amendment, and after the abolition of slavery, that we would seriously question, as this Court questioned, the power of the Federal Government to deal with a federal citizen solely on the basis of his race. (p. 25) Nabrit maintained that there must be a reasonable relation ship between the purpose of the statute and the statute itself and.that the purpose must be within the "competency of this Government to effect" (p. 25). JUSTICE REED: Who is to determine that? MR. NABRIT: This Court. 233 JUSTICE REED: And Congress cannot determine it for itself? MR. NABRIT: No, sir. Never in the history of this country have the individual liberties of the citizen, been entrusted in the hands of the legislators. The very founders of the Government refused to agree to the Constitution itself until they could be satisfied, Jefferson and others, that they had a Bill of Rights, so as to protect individual liberties. JUSTICE REED: Who is going to make that determination as to whether it is necessary or proper or desirable? This Court? MR. NABRIT: I would say this, that this Court, faced with a piece of legislation by Congress which did that, or an act under a piece of legislation which did that, would in my opinion test it by the same type of test that it used in Korematsu and in Hirabayashi and in Endo.10 This Court tested it by that same method and found that it had no such authority and released Mitsye Endo. In other words, we ask nothing different than that we be given the same type of protection in peace that these Japanese were given in time of war. We are not asking anything different. We are simply saying that liberty to us is just as precious, and that the same way in which the Court measures out liberty to others, it measures to us, and Congress itself has nothing to do with it, except that in the exercise of a power which Congress has, if Congress determines that it has something that it must do as an implied necessity in order to carry out that power, and then we say it does not and we bring the question to this Court, this Court would decide it. I cannot make the statement that there is no situation in which Congress might not use race. I do not know For the Government to suggest under these circum stances that the presence of Japanese blood in a loyal American citizen might be enough to warrant her exclusion from a place where she would otherwise have a right to go, is a position which I cannot sanction. Ex Parte Endo. 323 U.S. 283, 308 (19^*0. 234 of one right now, except the war powers. But that certainly leaves it open for determination by this Court. But at the same time, I assert that there is absolutely no basis that can be produced that would be accepted in our country in 1952 that would justify Congress making it such a racial basis for the exclusion of a student from a high school in the District of Columbia. (pp. 25-27) Just prior to recessing for the day, Justice Reed again raised the issue of the power of the Supreme Court to examine the reasonableness of Congressional legislation. Nabrit replied: MR. NABRIT: Because you have said already, Mr. Justice Reed, or this Court, that as soon as we see that, we suspect it. It is not to say that it is unconstitu tional, but it is to say that it is suspect, and you have said in so many cases, race is invidious; race is irrelevant. So when we get over in the Federal Govern ment where there is nobody to deal with, but just us, the Federal Government, we do not have to worry. We know it is irrelevant, invidious, odious and suspect. So this Court should examine it. (p. 28) Whereupon, at 4:30 P.M. on December 10, 1952, the Court recessed for the day. On Thursday, December 11, 1952, at 12:10 P.M. oral argument in Bolling v. Sharpe resumed. Just as Nabrit was about to reopen and continue his argument, Justice Frankfurter interrupted and expressed the "hope” that before the conclusion of his argument Nabrit would explain whether there was any legislative effort to prohibit the District of Columbia authorities "from doing what I understand you and your colleagues said was not authorized by this legislation" (p. 30). Indicating that he would be very happy to address himself to that, Nabrit 235 briefly examined the history of legislative enactments dealing with white and Negro schools in the District of Columbia. He noted that in 1864, the basic statutes out of which grew the present acts governing the schools in the District of Columbia were enacted. They provided in substance that suitable rooms and schools should be provided for the training of colored pupils, and in addition to that they provided mandatory legislation to ensure that a proportionate share of the funds secured from revenue in the District should be allotted to these schools. I might say to the Court that they did this because experience had shown that there was some diversion of funds that Congress had intended for these schools to the white schools. It is therefore the position of petitioners that the action of Congress in 1874, in reenacting these statute^ is not persuasive on this Court as to whether or not either, one, Congress intended compulsory or authorized segregation in the District, or, two, whether that is Constitutional. (pp. 33-35) Nabrit had apparently anticipated his adversary's argument. The respondents contended that the plain construction of Congress in the reenactment of the statutes governing edu cation in the District of Columbia after 1864 and after the adoption of the Fourteenth Amendment was evidence of Con gressional intent to maintain segregation in the public schools of the District. Not so, argued Nabrit. The Supreme Court in 1952 would still have to decide if Congress intended compulsory segregation and, second, whether such segregation was Constitutional, regardless of the intent of Congress. Nabrit readily and candidly recognized the fact 236 that Congress had provided a special superintendent expressly appointed to that position for colored schools. He also conceded that there was explicit legislative re cognition of the separation of schools on the basis of race and that Congress had impliedly enforced such segre gation. However, Nabrit still maintained that there is nothing in this language that anybody can find that compels segregation. That is clear. There is language which may be said to permit it, or author ize it. . . . It is petitioners' position that it does not authorize it. But if it does authorize it, to that extent that it is implemented by these respon dents, it is unconstitutional action on the part of respondents. (p. 38) Justice Frankfurter interrupted again: JUSTICE FRANKFURTER: I wonder if you are not saying, since there is, and Congress appropriated for it [Negro schools and a superintendent for Negro schools], that it recognized the right, at least under the statute, that there should be Negro schools? MR. NABRIT: Now, the reason I do not say that, Mr. Justice Frankfurter, is that the language of this Court in Ex Parte Endo, when they said that wherever there is implied legislation which restricts the individual, or curtails, to use the Court's language, the individual right of citizens, that curtailment has to be explicitly stated in clear and unmistakable language. JUSTICE FRANKFURTER: It does not touch on a Constitu tional point. MR. NABRIT: Yes. JUSTICE FRANKFURTER: I wonder if it does not carry permissiveness into a clear recognition by Congress here in the situation where they provide money, because the alternative is .that Congress was providing money for something that they did not authorize. MR. NABRIT: I would say yes, and I would say that that 237 would not change petitioners' position. In other words, I agree to that. (p. 39) Nabrit thereupon urged the Court not to find that the statutes governing segregated education in the District of Columbia as compelling and authorizing racial segrega tion in the public schools. He argued that an interpreta tion of the laws of the District of Columbia by the Court which allowed segregation on a racial basis would amount to a "Bill of Attainder" in violation of Article I, Section 9, Clause 3, of the Constitution. His argument was used by no other counsel. As support for this position, Nabrit cited United States v. Lovett. (328 U. S. 303 [1946]). Messrs. Lovett, Watson, and Dodd had been charged by the House Committee on Un-American Activities with being sub versive. In 19**3 Congress attached a rider to an appro priation bill stipulating that those Federal officers should not be paid from federal funds after a stated date unless renominated by the President and reconfirmed by the Senate. The three men remained in their jobs for a few weeks after the date set and then sued in the Court of Claims for their salary. The Supreme Court held that this action by Congress was unconstitutional as a bill of attainder since it "clearly accomplished the punishment of named individuals without a judicial trial." Now, we say that if this Court decides that these statutes prohibit Negroes from ever associating with whites or ever studying with whites in a white school, 238 they have placed the same ban upon them, and they have done it without a trial, as in the other, merely be cause for some undisclosed crime, some status, some position, some matter of birth, appropriation, or some thing else in the past, these Negroes are unfit to associate with whites, and under the definition of a bill of attainder as laid down by this Court in United States v. Lovett, we suggest that there would be another danger that these acts would be unconstitu tional. Therefore, we urge upon this Court not to adopt that construction, and we say this to the Court: You would not reach this Constitutionality, because if you find these statutes do not require it and do not authorize it, then the action of respondents is unlawful, and you may direct admission into Sousa Junior High School. (pp. 41-42) This concluded opening argument for the petitioners and the Chief Justice then called upon Milton D. Korman to argue for respondents. ARGUMENT ON BEHALF OF RESPONDENTS by Milton D. Korman With the exception of a few questions by the Justices near the end of his argument, Korman was not interrogated by the Court. No counsel appearing for argu ment to this point had been questioned less. The conclusion seemed readily apparent: either Korman’s argument was so brilliant or effective that the Justices could not think of any questions or, in the alternative, Korman had drawn a "veil between counsel and the Court." The "veil" referred to is a kind of ennui, a feeling of listlessness or weariness resulting from satiety or tedium. The give and take between the Court and counsel can be a most 239 exhilirating intellectual experience. The spark and the excitement can be felt. Both counsel and the Court are stimulated and when this kind of exchange occurs, the Court is moved to think, feel, and decide. Basically, this kind of oral persuasion does not differ from any other "speech" situation where one man attempts to orally sway another or others to his point of view. When one, whether a debater, a campaigner for political office, a proponent or opponent of a particular issue seeks to persuade by reading long and involved quotations, statistics, or similar material, the "electricity" between the speaker and the audience is often lost. A kind of torpor develops and the speaker loses contact with his audience. The reason for the basic admonition, "never read your argument," is that reading draws a veil between the advocate and the Court. What is true of arguments as a whole is likewise true of lengthy quotations from documents or testimony or opinions. So— never read long quotations to a Court. . . . Here again, if you are not prepared to take this precept on face just go to the Court and listen to the lawyers who read to the judges copious quotations from decisions or records. I will not urge, "never read a quotation;" that would be dogmatic and unsound. I do insist, however, that you should never undertake to read a quotation that is over four sentences or so long, because at about the fourth or fifth sentence the veil begins to form. Therefore, if you do read, the quotation should be short, and above all, pat,,as departure from the normal standard is not justified. ■^Frederick Bernays Wiener, Briefing and Arguing Federal Appeals. op. clt. . p. 327. 240 Korman read long quotations from various Congres sional enactments dealing with white and colored schools In the District of Columbia, various pertinent cases, portions of the United Nations Charter, and other similarly related matters and documents. Therefore, at least according to one authority, Frederick B. Wiener, he violated one of the basic criteria for effective oral advocacy. In deference to Korman, however, it should be stated that his description of the history of education in the District of Columbia was both interesting and illuminating. Congress abolished slavery in the District by an Act of April 16, 1862. To that date, there were no public schools for the emancipated Negro excepting a few private schools. Approximately a month after the emancipation of the Negroes in the District, Congress passed an enactment establishing a system of schools for white and colored children. In answer to a question that had been asked by Justice Frankfurter of counsel for petitioners "as to whether or not there were any specific attacks upon the system of separate schools, ..." Korman stated that while "there were some [attacks on the separate schools] before the adoption of the Fourteenth Amendment, there were none thereafter" (pp. 47-48). Korman argued that although the Fourteenth Amendment was adopted in 1868, Senator Sumner of Massachusetts sought to strike down the dual school system in the District of Columbia between 1870 and 24l 1874, and that in each Instance the bills introduced by him failed to pass. He pointed out that the Civil Rights Act of 1875» as originally drawn, "specifically provided for the abolition of separation in the schools of the United States, in and out of the District of Columbia, but as finally enacted, the word 'schools’ was stricken from that Act" (p. 48). Further tracing the history of the separate school system in the District of Columbia, Korman called the Court's attention to the act of June 6, 1900 which provided for an Assistant Superintendent in charge of schools for colored children. The Act of 1906 reorganized the whole school system and established the present Board of Educa tion. This Act firmly established the organization of the schools of the District of Columbia into white and Negro schools. Korman quoted at length the testimony before the Congressional Committee considering this school act in cluding the opinions of two prominent Negro educators, one Professor William A. Joiner and Professor Lewis B. Moore, both of Howard University. Korman noted neither of these men opposed the establishment of the public school system in the District of Columbia on a racial basis. To further buttress his argument that the intent of Congress was to establish separate schools for the races in the District of Columbia, Korman informed the Court that 242 every year for practically ninety years there had been applications to the Congress for funds to operate these schools, and every year the justification for the appropriations has contained statements that so much is needed for colored schools, so much is needed for colored teachers, so much is needed for white schools, so much is needed for white teachers, so much is needed for new construction because the colored population has increased and we need another colored school, and so forth, and so forth. (p. 52) Korman*s second basic contention was this: That the Courts of the District of Columbia, namely, the United States District Court and the Circuit Court of Appeals for the District of Columbia, had on several occasions held that the various enactments by the Congress cannot be read with any meaning except that the schools for white and colored children were then intended to be separate. He argued that the Supreme Court was bound by those decisions in that the Court had generally accepted the interpretation of the Courts of the District of Columbia of locally applicable statutes. Korman then sought to "morally" justify both the enactments of Congress and the judicial interpretations of those enactments. What, then, is the situation? I say to the Court, and I say to my distinguished adversary, Mr. Hayes, these Acts, were not passed, this dual school system was not set up to stamp these people with a badge of inferior ity. There was not this racial feeling that he speaks of with such fervor behind these Acts. There was be hind these Acts a kindly feeling; there was behind these Acts an intention to help these people who had been in bondage. And there was and there still is an inten tion by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a 243 place where they will not be looked upon with hostility, in a place where there will be a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations. We cannot hide our faces and our minds from the fact that there is feeling between races in these United States. It is a deplorable situation. Would that it were not so. But we must face these facts. We know that there has been outbursts between races north of here where there are not separate schools for white and colored. We know that these things exist, and constitutionally, if there be a question as to which is better, to throw these people together into schools and perhaps bring that hostile atmosphere, if it exists, into the schoolroom and harm the ability to learn of both the races, or to give them completely adequate, separate, full educational opportunities on both sides, where they will be instructed on the white side by white teachers, who are sympathetic to them, and on the colored side by colored teachers, who are sympathetic to them, and where they will receive from the lips of their own people education in colored folk lore, which is important to a people— if that is to be decided, who else shall decide it but the legislature, who decides things for each Jurisdiction? (pp. 55-57) Korman next urged that the question of segregated schools should be decided by the legislatures and not by the Supreme Court. This argument was used by every counsel who argued on behalf of the respondents or appellees. Korman argued that the Constitution does not inveigh against such a determination by the legislature. He also contended, and without any justification or reasoning what soever, that since the Fifth Amendment (which is applicable to the District of Columbia) contains no equal protection clause as does the Fourteenth Amendment it follows that the District of Columbia would have the right to pass 244 discriminatory legislation. This contention was not sup ported by any cases or authorities. As was noted earlier, both Nabrit and Hayes argued to the contrary. Korman then cited Gaines v. Canada, decided some fourteen years prior to this argument. He interpreted that case to establish the principle that if there are separate-but-equal facilities within the State then it was constitutional. "And I say to the Court that it is con ceded here by my distinguished opponents that there is no question of equality here" (p. 58). In this manner Korman had again introduced the doctrine of separate-but- equal and the Plessy case. He maintained that there were no reasons why the Court should depart from that long established precedent. What has changed the Constitution in 14 years, since the Gaines case? What changes have occurred? What policy announcements have there been by the Congress? Questions were directed to counsel all through these cases about changed conditions. Mr. Justice Burton asked counsel if it were not true that these other cases could be disposed of as being proper law at the time they were decided, but not now in the light of changed conditions. I ask the rhetorical question, what changed conditions? What has happened in 14 years that we did not know in 1938 when the Gaines case was decided? What is there now? I submit to the Court that the answer is, nothing is new. The Constitution is the same today as it was in 1938 at the time all those other decisions came from the lips of this Court. (p. 59) He then attacked the views of the Attorney General of the United States (who appeared in these cases as amicus 2H5 curiae), who had argued that Washington, "this District of Columbia in which we live, is the window in which the world looks upon us." Korman contended that this was not a constitutional argument. Unbelievably, he cited Dred Scott v. Sandford to buttress his attack on the Attorney General. Prom the Dred Scott decision, he read: No one we presume supposes that any change in public opinion or feeling in relation to this unfortunate race in the civilized nations of Europe or in this Country should induce the Court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted, (p. 60) It seems almost sacrilege for Korman to quote the now infamous Dred Scott decision to justify his point of view regarding public opinion and its effects on a decision of the Supreme Court. Korman argued, in effect, that the Constitution was an all-encompassing, static document unin fluenced by the tides of human affairs and the political, social, and economic changes in the relations of men; that it was a document, the words of which were engraved on marble and unchangeable and unchanging in a dynamic society. It was strange that he should select this decision to sup port the view that public or international opinion should not affect the decision-making processes of the Court— and especially in 1952. Justice Jackson was somewhat derisive of Korman1s next argument. Korman maintained that if this Court should hold that separate schools may not be maintained under the 246 Fifth Amendment, then the Indians and their relation to the Government might be seriously affected. And I suggest that there are whole chapters of the United States Code which are entitled "protection of the Indians,” and under which Congress has legislated especially for them, because it is recognized that there is a people that needs protection. You and I can go out and buy a bottle of liquor if we want. The Indian cannot, no where in the United States. And he is a citizen. Why? Because it is recognized that it is not good for him, and he needs protection. That assumes, I know, that it is good for us. JUSTICE JACKSON: I live very close to the Seneca Reservation, in New York, and I would just as soon deal with a drunken Indian as with a drunken white man, myself, under modern conditions. It may have been different in the days of the scalping knives. (p. 62) In substance, Korman argued, "classification" should be left to the discretion of the legislatures of the respec tive states. Countering the petitioners' argument that racial segregation in the public schools violates the Civil Rights Act of 1866, Korman declared that the same Congress which passed some of those civil rights acts also set up the separate schools in the District of Columbia. Therefore, he argued, "how, then, can it be said that the contempor aneous thought on this by the people who made these enact ments had any idea that schools were to be included in the Civil Rights Act" (p. 65). Having made his point that the framers of the Civil Rights Act of 1866 did not intend to include schools within the scope of that Act, Korman then proceeded to deal with petitioners' next argument, namely, 247 that the United Nations Charter expresses the policy of the United States. If it expresses the policy of the United States, it expresses the policy of the United States to enact legislation upon a particular subject, and that is all that it expresses. It has been demonstrated rather clearly that the United Nations Charter is not a self-executing treaty. It Is a non-self-executing treaty which must be Im plemented by Acts of Congress. All that we say in there is that we pledge ourselves in future legislation to keep these things in mind. And as set forth in our brief, the framers of that Article 55 intended only that it was to give to the rest of the world those constitutional rights which we have here in America and which they are denied. What is the meaning of "human rights and fundamental freedoms?" It is not defined in the charter anywhere. "Fundamental freedom" is not defined. No one knows what it means. There has been set up a separate organ ization, an organization which I think is called the Council on Human Rights, which has attempted to define that term, but it has been stated specifically by Mrs. Roosevelt, who heads that, that that has no binding effect even on the General Assembly of the United Nations, much less on the signatory powers. We bar people into this country on grounds of polygamy. Polygamy is a fundamental right and freedom in some nations. How can these things be justified together? They cannot be. (pp. 65-68) In its final decision, the Supreme Court gave little cre dence to this particular argument by petitioners. Korman's attack was sharp and incisive. When an advocate deals in "vagaries" or in terms of ultimates such as "liberty" or "freedom" he is dealing with nebulous, semantically inde fensible, and confusing terms. These words are not subject to exact definition. The "United Nations" argument was 248 perhaps one of the petitioners' weakest. Not only did they utilize an enactment not binding on this country or Court, but it was incapable of definition. Obviously, it was utilized by them to impress on the Court the expressions of the world body on the issue of "freedom." Though a state ment of an admirable ideal, it did not lend itself to any degree of proof. It represented a dangerous proliferation of argument because an able opponent can decisively destroy it. Korman attacked petitioners' contention that the laws segregating students in public schools on the basis of race constitutes a Bill of Attainder, by arguing that separate schools do not constitute a punishment to Negro children. Korman then concluded: It seems to me, as I have listened to seven hours of argument that preceded my addressing the Court, that this is the situation, that my friends say, "this is the time for a change." JUSTICE BLACK: Does that have anything to do with the law in the case? MR. KORMAN: I do not think so, sir. JUSTICE BLACK: You do not. JUSTICE JACKSON: There has been a promise of change. MR. KORMAN. Sir, if there has been a promise of change and it comes through proper channels, I certainly, and the respondents certainly, have no objection to it, If it comes in the proper way by the Judgment of the Congress that should pass upon it. We do not object to it. But if they decide that there is no need further for separation of the children of white and colored 2H9 people in the schools so that the two may benefit from being separated because of the receptive air, the wholesome atmosphere that prevades those schools, we do not object. Perhaps this Is the time. I do not know. But I say that this Is not the forum for such arguments. I say that these arguments should be made In the halls of Congress, and not In this chamber. . . . I say to the Court that this Issue should be left to the Congress where It belongs. There Is no Constitutional Issue here. It has been decided by this Court. It should be left where It now Is. (pp. 70-75) REBUTTAL ARGUMENT ON BEHALF OF APPELLANTS By James M. Nabrlt, Jr. In every case dealt with thus far, the advocates for the Negro children were seemingly stung by the argu ments of the other side. As a result, their rebuttals were vigorous, sometimes scornful, and eloquent. Their opening arguments were polished, concise, objective, and apparently delivered forthrightly. One obtains the impression that generally the delivery was quiet, analytical, and lacking in any kind of so-called "oratory." Not so the rebuttals. Here the petitioners rose to oratorical heights not reached in their opening argument. Undoubtedly alluding to Korman's argument regarding special legislation for certain races "because it is recog nized that there is a people that need protection," Nabrit vigorously challenged that statement. . . . he has dealt in the past upon the white man's burden, he has seemed to feel that for some reason that 250 exists today. It would appear to me that In 1952, the Negro should not be viewed as anybody's burden. He Is a citizen. He Is performing his duties In peace and In war, and today, on the bloody hills of Korea, he Is serving In an unsegregated war. All we ask of this Court Is that It say that under the Constitution he Is entitled to live and send his chil dren to school In the District of Columbia unsegregated, with the children of his war comrades. That Is simple. The Constitution gives him that right. The basic question here is one of liberty, and under that liberty, and under the due process clause, you cannot deal with it as you deal with equal protection of laws, because there you deal with it as a quantum of treatment, substantially equal. You either have liberty or you do not. When liberty is interfered with by the State, it has to be Justified, and you cannot Justify it by saying that we only took a little liberty. You Justify it by the reasonableness of the taking. We submit that in this case, in the heart of the Nation's Capitol, in the Capitol of democracy, in the Capitol of the free world, there is no place for a segregated school system. This country cannot afford it, and the Constitution does not permit it, and the statutes of Congress do not authorize it. (pp. 76-77) 12 Gebhart v. Belton Finally, on December 11, 1952, at 1:27 P.M., the Court had reached argument in the fifth and final case to be heard in 1952. It would seem that the Supreme Court had chosen the five cases which made up the School Segregation Cases 12 Transcript of Oral Argument, Gebhart v. Belton. December 11, 1952. Unless otherwise indicated, all quota tions in this section are from the Transcript. 251 carefully and deliberately. Certainly, If this was not true, then the United States Supreme Court was by accident and coincidence presented with the opportunity of testing the question of public school segregation with five most diverse fact and legal situations. In the Delaware cases, the Court of Chancery found that the Negro schools were not equal to those attended by white children. Despite the fact that Negro schools were rapidly being "equalized," the Supreme Court of Delaware ordered the school authorities to integrate their schools and admit Negro children. This decision was based on the equal protection clause of the Fourteenth Amendment. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activ ities, physical plant, and time and distance involved in travel. . . . The Chancellor also found that seg regation itself results in an inferior education for Negro children, but did not rest his decision on that ground. The Chancellor*s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modifi cation of the decree after equalization of the Negro and white schools had been accomplished. . . . The defendants, contending only that the Delaware courts had erred in ordering the Immediate admission of the Negro plaintiffs to the white schools, applied to this Court [United States Supreme Court] for certiorari. The writ was granted, . . . The plaintiffs, who were successful below, did not submit a cross-petition.- * - 3 Thus, for the first time in the arguments of 1952, the petitioners were not the Negro children. 13Brown v. Board of Education 347 U.S. 483, 487,488. 252 THE CHIEF JUSTICE: Case No. M 8, Francis B. Gebhart, and others versus Ethel Louise Belton, and others. THE CLERK: Counsel are present. (p. 2) ARGUMENT ON BEHALF OF PETITIONERS by H. Albert Young In the opening moment of his argument, the Attorney General of Delaware succinctly stated the alternative con tentions of the State: The State contended that under our Constitution and statutes, segregation in the public schools was lawful and not in violation of the equal protection clause of the Fourteenth Amendment, and that if inequalities were found to exist, any judgment in favor of the plaintiffs should be limited to an injunction directing the defen dants to equalize the facilities within a reasonable time. (p. 5) Young then informed the Court that neither the Delaware Court of Chancery nor the Delaware Supreme Court invali dated the Delaware statutes segregating public schools; that such statutes did not offend the provisions of the Fourteenth Amendment forbidding any state to deny any citizen the equal protection of the laws; and, that those courts based their decision on Plessy v. Ferguson and Gong Lum v. Rice. To justify his position, he quoted the Delaware Supreme Court as follows: The question of segregation in the schools, under these authorities [often referred to as the "separate but equal" doctrine], is one of policy, and it is for the people of our State, through their duly chosen repre sentatives, to determine what that policy shall be. When so determined, it must be given "effect by our courts, subject always to the rule enjoined both by the Constitution of the United States and our own statute, that substantially equal treatment must be accorded. 253 The refusal of the Chancellor to enter the declaratory judgment prayed for was, therefore, In our opinion, correct, (p. 7) The Delaware Supreme Court, however, held that an injunc tion, where an inequality is found to exist, commanding the defendants to admit plaintiffs to the designated schools maintained for white children was required by the equal protection clause of the Fourteenth Amendment. The Delaware Supreme Court had further held that the right to equal opportunity is a personal and present right under the equal protection clause and relied for authority on the Gaines. Slpuel« and Sweatt cases. From petitioners point of view, the Gebhart case, when refined to its simplest denominator, involved this issue: That the Supreme Court of Delaware erred in immediately granting the injunction desegregating the public schools of Delaware when they should have maintained the status quo. Instead, they should have granted an injunction ordering the local political subdivisions to equalize school facilities within a reason able time. Young used the next ten minutes informing the Court, in some detail about the school facilities available to Negro and white children. He was interrupted by Justice Reed: JUSTICE REED: Your objection here, Mr. Attorney General, is as to the fitness of the decree with respect to the immediacy? MR. YOUNG: Correct. 254 JUSTICE REED: Your contention Is that It should wait until later. MR. YOUNG: That Is correct. JUSTICE REED: Will you address yourself as to why we should overrule the findings of the Chancellor. MR. YOUNG: Yes. The contention is that based on the ground of the Chancellor and the Delaware Supreme Court, In affirming the Chancellor, did not Interpret the cases upon which they relied, the Slpuel case and the Gaines case and the Sweatt case, in making a finding that unless they grant immediate relief it would be in violation of the equal-protection clause of the Fourteenth Amendment. (p. 15) The Attorney General of Delaware then contended, certainly not without merit, that he was presently arguing before the Supreme Court because of the widespread effort of the decision of the Supreme Court of Delaware on the entire State. There was no showing that the State could not equalize or that it was unwilling to equalize, and the effect of the decree is demoralizing to the Negro pupils as well as to the white pupils, to the teachers, to the State Board of Education. There is no permanency, there is no stability, as one of the counsel mentioned during the course of the argu ment in the Virginia case. The decree in its present form, which says that the Negro children shall be permitted to go to the white school and that the Board of Education may come in next week, next month, and modify the decree would result in shunting those Negro children back and forth. There would be no stability, there would be no perman ency. I would rather if the Court had said that segre gation per se is bad; "let the Negro children go to the white schools." (pp. 21-22) 255 After the recess, Young answered one of Justice Frankfurter’s earlier questions regarding the Chancellor’s finding on the evidence that segregation produces detri mental results so far as educational opportunities are concerned. In this regard he quoted directly from the Opinion of the Supreme Court of Delaware. On page 44 of that Opinion: It is said that the uncontradicted evidence that was adduced by the plaintiffs shows that State-imposed segregation in the public schools and equality of educational opportunity are inherently incompatible, and that the Chancellor so held. The Chancellor indeed found on the evidence that segregation itself results in the Negro's receiving inferior educational opportunities, and expressed the opinion that the "separate but equal" doctrine should be rejected. He nevertheless recognized that his finding was immaterial to the legal conclusion drawn from the authorities above cited. We agree that it is immaterial, and hence see no occasion to review it. JUSTICE FRANKFURTER: Therefore, it is not before us. MR. YOUNG: That is right. JUSTICE BLACK: But does that necessarily follow. They did not set it aside, so that you have a finding of your Chancellor so far as segregation is concerned in Delaware that the result of it is the affording of an inferior opportunity of education and your Supreme Court says that nevertheless the Supreme Court of the United States, in effect, has held that that can never be a constitutional ground. MR. YOUNG: So did the Chancellor, your Honor. JUSTICE BLACK: But you still have your finding that, so far as Delaware is concerned— and I presume he was not looking at evidence anywhere but Delaware, that the system of segregation there, even though the faclll ties, physical facilities, are equal, results in inferior education for them. MR. YOUNG: He did so state. 256 JUSTICE BLACK: We have that finding without its being set aside. MR. YOUNG: Well, I think we have it, in effect, set aside when the Supreme Court says that he considered it Immaterial to the conclusion in his case and the decision in his case. JUSTICE BLACK: That is right. He considered it im material, but nevertheless are we not faced with this situation: do you conceive that segregation might be held on evidence in some places to supply equal oppor tunities for education, while in others it might be held that the situation was such that it gave an inferior opportunity for education? MR. YOUNG: Depending on the facilities offered, and the educational opportunities. JUSTICE BLACK: I mean, assuming that the facilities are the same— MR. YOUNG: Yes. JUSTICE BLACK: — do you conceive that it is impossible for segregation in one place to result in an equality of opportunity of education, while in another it might result in an inequality of opportunity for education? MR. YOUNG: No, I cannot conceive of that myself. Now, it may be that— JUSTICE BLACK: There might be many things involved might there not? MR. YOUNG: That is true, but I am not prepared to say whether, all factors being equal, mere segregation of and by itself will bring about inferiority so far as educational opportunities are concerned. JUSTICE BLACK: Well, assuming that you had facts, and that your court found on the facts that in Delaware, where your two schools functioned, and with the general conditions of education in Delaware and the relation ship between the races and all of that was such that even though the facilities were identical— physical facilities— nevertheless, in Delaware, the results of segregation were to give an unequal opportunity of education to the colored people. 257 Would you say that, assuming that finding on local facts, and It Is accepted, that the separate but equal doctrine would not make It necessary to state that? MR. YOUNG: I would not, If your Honor, please, under our Constitution and Its statutory counterpart— we are required to maintain separate schools for white and colored as long as we afford them equal opportunities and equal facilities and I think that that would merely be an oblique way of striking down segregation, and desegregating schools, (pp. 22-26) This was the first time that Justice Black had interrupted any counsel’s argument at length. His questions were sharp and persistent. He was not easily satisfied with Young's answers. However, an attorney should not always be expected to agree with the Court and stipulate his case away by admitting his position is wrong. At times he must be able to trade blow for blow— certainly with all due courtesy— but nevertheless steadfastly maintaining his viewpoint. Justice Black still was not finished with the Attorney General of Delaware: JUSTICE BLACK: If you assume that the facts are cor rectly found. Suppose I asked you to assume that the Court found those facts, and assume that he Is right, and you had no way to overturn them. He would say that conditions in Delaware— give consideration on the facts- -to see whether or not the colored people get an equal opportunity for education. Now, I find that they do so far as the physical results are concerned, but I am led to the conclusion from the evidence and find from the evidence that they do not because the relationship that exists here, and by reason of the manner of going to school, and the mix ture in other places, and so forth, I find that the effect on the children is that they get an inferior opportunity for education. Would you say that that would still not bring them within the separate but equal doctrine? 258 MR. YOUNG: I would, your Honor. I would because I say'that would be violative of the equal protection clause of the Fourteenth Amendment, and would also be violative of our own constitutional provisions, because we are assuming now facilities being equal, educational opportunities being equal; I would like to say I do not know what evidence your Honor is referring to that the Chancellor could rely on other than the sociolo gists and anthropologists and psychologists. JUSTICE BLACK: I just read the findings, and I asked you the question at the beginning of these arguments, you may remember. MR. YOUNG: I remember. JUSTICE BLACK: About the difference in findings, and I wondered— both sides seem to be relying on the find ings so much, and I wondered if the assumption we must make from that is that both sides believe that it could be found in one state and one locality by reason of a different situation that opportunities were unequal, even though facilities were equal, while in another state that would not be the case. MR. YOUNG: I do not subscribe to that, your Honor. (pp. 26-27) Having placed the Attorney General into this somewhat per plexing legal situation by one of his earlier questions, Justice Frankfurter attempted to extricate him. JUSTICE FRANKFURTER: Mr. Attorney General, since I got you into this trouble, perhaps I might help straighten out the way the matter lies in my mind. As I understand it myself, when your Supreme Court came to review the decision of the Chancellor, it said that inasmuch as his finding of fact is irrelevant, it was not going to review it. Therefore we have a finding of an inferior court specifically not reviewed by the highest court in the state. The Chancellor found that on his appraisal of the evidence. Insofar as I am concerned, it may well be that your Supreme Court might not have reached that conclusion, and might not have weighed the evidence that the Chancellor did and, therefore, we have not got, for myself in this case, what we have In the Kansas 259 case, a finding of fact which binds us, because for all I know your Supreme Court might have disagreed with your Chancellor, and then we would be in a position where the highest Court said that the evidence does not yield to the conclusions that the Chancellor thought it yielded. MR. YOUNG: That is precisely the point, your Honor, and what is more, a review of the opinion would show that the Delaware Supreme Court did not agree with many things that the Chancellor said in his opinion in the lower court. JUSTICE FRANKFURTER: Yes. The legal position that you take is on the assumption that was presented by the Kansas case. I think that your record presents a different set of facts. MR. YOUNG: Exactly. There was no finding of fact that was considered at all. It was considered immaterial to the issue. JUSTICE FRANKFURTER: A very powerful finding by the Chancellor. MR. YOUNG: Oh yes. (pp. 27-28) Justice Black then interrupted: JUSTICE BLACK: I do not like to interrupt again, but taking that as true, if we assume and admit such a finding is relevant, you would be In a situation of having a finding by your Chancellor which is relevant, which might cause the case to turn one way or the other, which has not been reviewed by your highest court. Cp. 29) Mr. Young had had enough. He attempted to move the argument back into the mainstream: the "form of the decree being in conflict with the other jurisdiction, was not a proper decree, taking Into account the needs and the relief to be granted, and the public interest involved" (p. 29). He attacked the decree because it made no attempt to assess the effect on the defendants (School Boards), and on the 260 children, both white and colored. No consideration was given to the ability of the defen dants to equalize the facilities involved within a reasonable time; no consideration was given to the effect of a possible later decree based on changing circumstances; no consideration was given to the effect of the decree on the school administrators who would be faced with the problem of determining how and where to enroll children in the various school districts in the state. No consideration was given to the effect of the decree on the public, generally, and on the legislature in planning for the future, in allocating funds for the maintenance and construction of school facilities. Cp • 30) As previously stated, Mr. Young took exception to the decision of the Delaware Supreme Court to desegregate immediately. He objected specifically to this portion of the decision: We prefer to rest our decision upon another ground. With deference to the decision in the Briggs and Davis cases, which we have carefully examined and considered, we cannot reconcile the denial of prompt relief with the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal pro tection of the laws is a "personal and present" one, how can these plaintiffs be denied such relief as is now available? The commendable effort of the state to remedy the situation serves to emphasize the impor tance of the present inequalities. (p. 33) Justice Reed then read another portion of the Supreme Court's Opinion which impressed him: To require the plaintiffs to wait another year under present conditions would be In effect partially to deny them that to which we have held they are entitled. It Is possible that a case might occur in which completion of equalization of facilities might be so imminent as to Justify a different result, but we do not pass on that question because it is not presented. (p. 3*0 261 The Attorney General then urged that the opinion of Judge Parker in the South Carolina case of Briggs v. Elliot was the correct approach to the problem. It will be remembered in that case the Court directed that the school facilities afforded Negroes within the district be equalized promptly with those afforded white persons. That court was of the opinion that it was giving the plaintiffs all the relief they could reasonably ask and the kind of relief that is ordinarily granted. In contrast to the opinion of Judge Parker, Mr. Young read a paragraph of the Chancellor’s Opinion which succinctly describes the feelings and demands of the Negro for first class citizenship— now. Just what is the effect of such a finding of a violation of the Constitution, as has here been made. It is true that in such a situation some courts have merely directed the appropriate state officials to equalize the facilities. I do not believe that such is the relief warranted by a finding that the United States Constitution has been violated. It seems to me that when a plaintiff shows to the satisfaction of the Court that there is an existing and continuing viola tion of the "separate but equal" doctrine, he is entitled to have made available to him the State faci lities which have been shown to be superior. To do otherwise is to say to such a plaintiff: "Yes, your Constitutional rights are being invaded, but be patient, we will see whether in time they are still being violated, (p. 1*0) ARGUMENT ON BEHALF OF RESPONDENTS By Louis L. Redding In accordance with good appellate advocacy, Redding differentiated his case from the other cases which had been argued before the Court and described the basis for this 262 case. MR. REDDING: May it please the Court, in this fifth and last case before the Court on this subject, the fundamental question is still the same as in the four preceding cases, namely, what rights has the individual to protection against arbitrary action by the Govern ment? In four cases, including the Delaware case, the govern ment involved is the State Government; in the fifth case, the government involved is the Federal Government. This case differs from the other cases in that the persons who were originally plaintiffs appear here not as appellants but as respondents. Judgment in the trial court was rendered for the persons who were originally plaintiffs, and that judg ment, as well as a finding of fact that there was substantial inequality in facilities was affirmed by the state Supreme Court. (pp. 42-43) A significant portion of the Chancellor’s Finding of Fact not alluded to in the opening argument was quoted by Redding: I conclude from the testimony that in our Delaware society, state-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to the white children otherwise similarly situated, (pp. 43-44) Redding’s first major contention involved the ’ ’classification" sub-issue. Although this contention had been argued by many counsel and for many hours, nevertheless Redding’s approach was somewhat different and novel. First, the constitutional and statutory provisions of the State of Delaware decreeing that the public schools be segregated on the basis of race were arbitrary and un reasonable in that they were based upon racial prejudice 263 and nothing else. In this regard, Redding noted that Delaware had never ratified the Fourteenth Amendment, and that the only ratification of the Fourteenth Amendment which occurred in Delaware was a ratification by implica tion from judicial action and decision. When the Fourteenth Amendment was being circulated among the states for ratifi cation, the Delaware legislature, in joint session, con curred in a joint resolution, part of which read: "Whereas, this General Assembly believes the adoption of the said proposed amendment to the Consti tution would have a tendency to destroy the rights of the states in their sovereign capacity as states, would be an attempt to establish an equality not sanc tioned by the laws of nature or of god," therefore they refused to ratify it. (p. 44) The Legislature took the same action with respect to the Fifteenth Amendment. To further illustrate the racial hatreds which constituted the foundation for the classifi cation of schools on the basis of race, Redding quoted a resolution of the joint session of the Delaware Legislature: Resolved that the members of this General Assembly do hereby declare uncompromising opposition to a pro posed act of Congress introduced by the Honorable Charles Sumner at the last session and now on file in the Senate of the United States known as the Supple mental Civil Rights Bill, and all other measures intended or calculated to equalize the Negro race with the white race, politically or socially, and especially do they proclaim unceasing opposition to making Negroes eligible to public offices, to sit on Juries and to their admission into public schools where white children attend, to their admission on terms of equality with white people in churches, public conveyances, places of amusement or hotels, and to any and every measure de signed or having the effect to promote the equality of the Negro with the white man in any of the relation ships of life. (pp. 45-46) 264 As a second argument under the classification issue, Redding contended that the separation of the Negro and white children in public schools was not based upon any rational consideration. In that regard, he quoted a con siderable amount of the testimony by expert witnesses who testified that there was no scientific evidence that there were any intellectual differences based upon the racial origin of the individual. Again, as in previous cases, Redding argued that the Negro child was harmed by the fact of segregation it self and was therefore a violation of the equal protection clause of the Fourteenth Amendment. Obviously Redding could not, after the many hours of argument in this case, present a completely fresh or new approach regarding the evidence that the Negro child was injured on account of segregation itself. Accordingly, his arguments were a reiteration of what the experts testified to at the trial of the matter. Justice Frankfurter then interrupted his argument as follows: JUSTICE FRANKFURTER: If we just affirmed this decree below without an opinion, that would be an end of the matter and the plaintiffs in this case would get all they asked, would they not? MR. REDDING: No, sir. JUSTICE FRANKFURTER: They would be admitted into the school into which they wanted to be admitted. 265 MR. REDDING: They ask for equality of educational opportunity. JUSTICE FRANKFURTER: That is what they would get if the decree was affirmed. MR. REDDING: They would get it, sir, but they would get it under the shadow of the threat of the Attorney General that the moment he has shown to the Court that facilities are equalized they would then be ejected from the schools. (pp. 51-52) After concluding by requesting the Court to affirm the decree below argument was then turned over to Jack Greenberg. ARGUMENT IN BEHALF OF RESPONDENTS By Jack Greenberg Greenberg faced the same problems encountered by Redding. Much of the material had been discussed either in previous arguments or by other participants in this parti cular case. He expended approximately five minutes of his time emphasizing the considerable inequalities between the Negro and white schools. This matter had been discussed in detail by the Attorney General of Delaware. Justice Jackson then interrupted the somewhat repetitive argument: JUSTICE JACKSON: Is it your position that the Court, finding a right being denied, has no power to take into consideration the time that it will take to correct it? MR. GREENBERT: It is our position, your Honor, that if constitutional rights are being denied our respon dents, they are entitled to those rights as quickly as those rights can be made available; and in this case they could be made available most quickly by admission to the superior facilities— that is, without regard to the other factors that have been discussed in the other cases. 266 JUSTICE JACKSON: You do not agree with the Attorney General's suggestion, then? MR. GREENBERG: No. It Is our position, for example, that if the State guarantees a child ten years of edu cation, and the child has spent approximately 5 of those years in inferior schools, and it is possible to give him the remaining five years on a parity with white students, that to deny him the sixth, seventh and eighth years of equality is to inflict an irreparable injury on him. Those three years cannot be completely recaptured, and we feel there is no reason in justice or under the Fourteenth Amendment why we should not demand it. JUSTICE FRANKFURTER: When you say there is no reason in Justice, of course— MR. GREENBERG: And under the Fourteenth Amendment. JUSTICE JACKSON: When you say that the Attorney Gen eral's plan for a gradual correction of this situation is impossible, it has to be done all at once? MR. GREENBER: That is our view. First of all, it does not afford the right and, second of all, as I intend to come to in a moment, there is no showing on this record, no showing whatsoever, and both Courts so found there is no evidence that equality would occur at any time in the future. (pp. 57-58) Despite repeated questions by Justice Frankfurter regarding possible difficulties which might be encountered in irnme*- diate desegregation of schools, Greenberg continued to press for immediate desegregation. He contended that although there might be some administrative problems, these were not insuperable. He noted that the Supreme Court of Delaware indicated that the Attorney General had offered no evidence whatsoever regarding the future equalization of the schools. 267 So the Attorney General's request for a decree ordering equalization Is based upon a factual premise that such equalization will occur at some ascertainable time In the future, and It is nowhere supported In the record in either of the opinion of the courts below. THE CHIEF JUSTICE: You mean to say that the record does not show about the construction of the new high school, costing a million and a quarter dollars, that the Attorney General referred to? (pp. 61-62) Greenberg maintained that the high school referred to was some 30 miles south of where the Negro children lived and the record did not show the effect that high school would have on the future education of those Negro children. Greenberg was as concerned as the Attorney General of Delaware that the segregation, desegregation, and resegre gation of the schools of Delaware would occur when the schools became either equal or at some future time became unequal. Now, if the physical facilities were all that were involved in this case, it would be our contention that this merely might be another unfortunate burden that these respondents [the Negro children] have to bear solely because of their race. But where the record proves that the injury from which the right flowed will exist in segregated schools so long as segregated schools exist, we submit that this Court should recog nize these facts and assure the respondents' admission permanently. JUSTICE BLACK: Do you say that the record shows that? What are you depending on? The findings? MR. GREENBERG: We are depending upon the findings and the evidence upon which the findings were made. JUSTICE BLACK: Do you take the position that the find ings affect the matter generally, or only in Delaware? (p. 65) 268 Greenberg attempted to confine himself to the "safe" grounds of the Delaware case with which he was fa miliar, but stated that he had read the record in some of the other states and that the evidence was similar. Just as he was ready to close his argument, Greenberg mentioned that the particular Negro children involved in this law suit were now attending the white schools in Delaware. Justice Black was considerably sur prised: JUSTICE BLACK: Did you say that the children are now attending these schools? MR. GREENBERG: That is right, sir. They registered from the beginning of the semester. I thought I men tioned that the decree— JUSTICE BLACK: I though the argument was made that they could not get in, that it would disrupt the schools. MR. GREENBERG: The Attorney General of Delaware applied for a stay of execution, but it was not granted to him. One of the reasons was that he applied too late, and another reason was that to grant the stay would be inconsistent with the mandate. And so for the reasons that Mr. Redding has submitted, and particularly for those reasons, because we feel that our respondents' rights can be more fully pro tected and more permanently protected in that way, we urge that this Court affirm the judgment below, and assure that respondents' stay in the schools to which they have been admitted and which they are now attend ing will be one unharrassed by future litigation, and attempts to segregate them once more. (pp. 70-71) And thereupon, at 3:50 P.M. on December 11, 1952 the first arguments in the school segregation cases were concluded. CHAPTER VI THE REARGUMENT: 1953 The long awaited decision in the school cases did not follow the 1952 arguments. On June 8, 1953, the last day of Its term, the Court ordered that the cases be re argued the following fall and requested counsel to discuss in their briefs and oral argument five principal questions and related sub-issues. The questions dealt with the history of the Fourteenth Amendment, the power of Congress to implement the Fourteenth Amendment, the right of the Supreme Court to abolish segregation, the advisability of granting immediate or gradual relief if the Court decided segregation violated the Fourteenth Amendment, and the specific nature of the decree to be drawn to enforce an order of the Court to desegregate, should such a decree be rendered.1 Although the cases were set for reargument on October 12, 1953, the matter was later reset, on motion by the Attorney General of the United States, to December 7, 1953. ^See Appendix E for the Supreme Court's Order on Reargument and related Memorandum. 269 270 When reargument began at 1:05 P.M. on December 7, 1953* the Supreme Court had the same justices with one exception. Chief Justice Vinson had died and was replaced by Chief Justice Earl Warren. Briggs v. Elliott and County School Board of Prince Edward County. Virginia* ^ ARGUMENT ON BEHALF OF APPELLANTS By Spottswood W. Robinson, III Spottswood Robinson opened oral argument by stating that he and Thurgood Marshall had combined arguments in two cases, Briggs v. Elliott and Davis v. County School Board of Prince Edward County. Virginia. Robinson said he would address himself to questions one and two of the Court and that Marshall would address himself to questions three, four, and five. He was, of course, referring to the ques tions propounded by the Court for reargument at this time. After clearly stating the facts of the two cases, the relief requested by appellants, and the pathway of those cases to the Court, Robinson said: I would like now to proceed to an examination of the history of the formulation, the proposal and the rati fication of the Fourteenth Amendment as an aid to the Court's determination of whether the laws involved in these cases can stand consistently with the prohibitions of the Fourteenth Amendment. 2Transcript of Oral Argument, Briggs v. Elliott and Davis v. County School Board of Prince Edward County» VlrglnlaT et al.. December 7. 1953. Unless otherwise Indicated all quotations are from the Transcript. 271 Our position Is this. Considering the overall evidence derived from the debates and proceedings on the Four teenth Amendment, these conclusions are supported. First: That the amendment had as its purpose and effect the complete legal equality of all persons, Irrespective of race, and the prohibition of all State- imposed caste and class systems based upon race. And secondly, that segregation in public schools, con stituting as it does legislation of this type, is necessarily embraced within the prohibitions of the Amendment. (p. 7) Robinson contended that there was considerable evidence that the framers of the Fourteenth Amendment intended to broadly proscribe all caste and class legislation based upon race or color. We find in the debates and proceedings on the Four teenth Amendment abundant evidence demonstrating that the radical Republicans in the 39th Congress desired and intended that the Fourteenth Amendment would effect both the invalidation of the existing Black Codes and any and all future attempts to Impose governmentally caste distinctions predicated upon race, (p. 9) In a well organized manner, Robinson cited evidence to substantiate his position. He made reference to numerous statements by Congressmen during the debates on the Four teenth Amendment. Robinson also drew support from the Civil Rights Act of 1866. "The 39th Congress had an occasion to contemporaneously consider, in addition to the Fourteenth Amendment, this piece of civil rights legisla tion" (p. 17). Robinson felt the Fourteenth Amendment and the Civil Rights Act of 1866 were related by something more than mere coincidence in terms of time or subject matter. 272 The Fourteenth Amendment was actually proposed after members of the 39th Congress stated that the Civil Rights guaranteed by statute, particularly the Civil Rights Acts of 1866, were vulnerable to future politi cal attack or might be struck down as unconstitutional. Consequently, the legislative history of the Act of 1866 is a relevant and important part of the background of the Fourteenth Amendment. This is particularly true in our opinion since, as I will later undertake to show, the scope of the Fourteenth Amendment was broader than the scope of this Act. (p. 18) Justice Frankfurter was the first member of the Court to interrupt Robinson. JUSTICE FRANKFURTER: Mr. Robinson, what attitude do you think the Court is called upon to manage, what weight is to be given, or how is it to ever deal with individual utterances of this, that or other Congress men or Senators? (p. 20) Justice Frankfurter was concerned about the value of the information derived from the history of the debates and statements of individual congressmen. MR. ROBINSON: I do not, Mr. Justice Frankfurter, take the position as this Court has on previous occasions stated that it would insist that the meaning of a constitutional provision or of a statute is to be determined by any isolated statement of any individual proponent or opponent of the legislation. (p. 20) Justice Frankfurter pursued his questioning. JUSTICE FRANKFURTER: Do you think we can get out of the debates anything more than Mr. Justice Miller got out of them at the time of the Slaughter House case? MR. ROBINSON: Yes, I think so Mr. Justice Frankfurter, (p. 20)’ Robinson tried to explain why he felt that such evidence derived from the debates was valuable. Again Frankfurter interrupted. 273 JUSTICE FRANKFURTER: And the understanding you get or you think we ought to get goes beyond the terms which Justice Miller put it in the Slaughter House cases. MR. ROBINSON: Well, I do not in any wise, of course, intend in any way to cut down on anything that Mr. Justice Miller stated in that connection. We offer the evidence in the Congressional debates on the Amendment and other debates— JUSTICE FRANKFURTER: I grant you we solicited and elicited that. But I just wondered now that we have got it, what are we to get out of it? The fact that a man in your position says "This is a terrible measure and if you pass it we will do this and that," does that tell me that this measure does do this and that? (p. 21) As Justice Frankfurter pointed out above, the Court had asked for the legislative history. Again Robinson attempted to justify the value to be derived from an historical analysis. Answering Justice Frankfurter's last question, Robinson said: MR. ROBINSON: To this extent, sir. So far as the statement standing alone is concerned, I would attri bute no value to it, but when a man makes that state ment and he is joined in it by others, he is not disputed by anyone. We have a condition of general understanding that is demonstrated by the over-all statements pro and con in that particular connection, I think we get assistance. JUSTICE FRANKFURTER: You think if an opponent gives an extreme interpretation of a proposed statute or constitutional amendment in order to frighten people on the other side, and the proponents do not get up and say "Yes, that is the thing we want to accomplish," that means they believe it, do you? MR. ROBINSON: Well, I will have to put it in these terms. I would not, of course, sir, know the motive of the person making that statement. JUSTICE FRANKFURTER: I know, but what does silence mean? 274 MR. ROBINSON: I think when you have statement after statement with respect to broad over-all purpose— JUSTICE FRANKFURTER: By individual members? MR. ROBINSON: By individual members. JUSTICE FRANKFURTER: That the proposal has— MR. ROBINSON: On other sides, if you please, on both sides, coupled with the fact of almost an entire absence of evidence to the contrary showing that any one there had a different understanding or a different opinion as to what scope it would have. JUSTICE FRANKFURTER: Namely, they wanted this proposal to put an end to treating white and colored differently before the law and all its manifestations? MR. ROBINSON: That is correct, sir. JUSTICE FRANKFURTER: That is all you get out of it? MR. ROBINSON: In all of its manifestations. JUSTICE FRANKFURTER: Then the question is whether this is one of the manifestations. MR. ROBINSON: I beg your pardon, sir. JUSTICE FRANKFURTER: Then the question is whether this is one of its manifestations. (pp. 21-23) Robinson obviously made every effort to answer Frankfurter courtesly and effectively. Robinson then firmly argued his basic contention: MR. ROBINSON: Our position in this regard, Mr. Justice Frankfurter, is that when you consider over all what these people said, what from the facts of history it appears, what Mr. Justice Miller, if you please, said was the purpose and intended scope of the amendment, we come up with a broad, general purpose that neces sarily embraces a prohibition against the type of state activity which we have presented to the Court in these cases. (p. 23) 275 Robinson continued his pattern of argument by utilizing statements of members of the 39th Congress which supported his position. Robinson argued that we haven’t been able to find anything in history that discloses, as our opponents contend, that the rights which are embraced in, and the prohibitions imposed by, the Fourteenth Amendment are no larger than those which are embraced in or imposed by the Civil Rights Act of 1866. (p. 25) Robinson said that appellees’ contention ignored the evo lution of the Fourteenth Amendment insofar as it related to the Civil Rights Act of 1866. Robinson argued that some members of the 39th Congress contended that the Bill in its original form would outlaw school segregation. Robinson declared that "during the debates on the proposed [Fourteenth] Amendment it was charged that the radical Republicans were simply undertaking to provide a constitu tional basis for the Civil Rights Act which had already been enacted" (p. 26). The proponents of the Amendment, he contended, made their purpose clear. They pointed out that they intended not to adopt a constitutional amendment of restrictive scope, but first they wanted to place the rights to be secured by the constitutional amendment beyond the power of repeal by future congresses. A congressional act would not do this, but a constitutional amendment would. They also made it plain that what they wanted to assure was the constitutionality in the future of any subsequent legislation which would have as broad a scope as did the 166 Act at the time it was originally introduced. And they also made it plain that they intended to enable the Judiciary to give full and complete protection to the rights secured. 276 We don’t find in the debates, nor do we find elsewhere, any such limiting scope attributable to the Fourteenth Amendment as is plain, (p. 27) Stating that time would not permit him to further detail the proceedings in Congress relating specifically to school segregation, Robinson indicated that the brief covered the matter. Robinson pointed out that Considering the evidence overall, there was an over whelming mass of opinion that under the 14th Amendment Congress could constitutionally legislate with respect to the elimination of segregation in public education, (p. 28) Justice Reed interrupted: JUSTICE REED: Do you think that legislation by Congress would add anything to the strength of your position? MR. ROBINSON: Insofar as this— JUSTICE REED: Insofar as segregation is concerned in the schools. MR. ROBINSON: Oh, yes, I think if we had a congression al act, sir, that we probably would not have to be here now. However, I do not think that legislation by Congress is any wise detracts from the power of the judiciary to enforce the prohibitions of the Fourteenth Amendment. (pp. 2 8-29) Robinson’s last statement was, in effect, appellants’ answer to a subsection of the Court's second question. Robinson proceeded to the Court’s question with respect to state ratification of the Fourteenth Amendment and what evidence there was that those states understood the Amendment to abolish or not abolish segregation in schools. While stating that the brief submitted dealt with the evidence in considerable detail, Robinson 277 nevertheless summarized some of the Important aspects for the Court’s consideration. He said that time would simply not permit him to go down the list, state by state, but he did want to emphasize this point: We do not claim that every state in the Union under stood the 14th Amendment as abolishing school segre gation. But we do submit that considering the evidence overall, there was substantial understanding which is to be derived principally not from what the States said, because you can’t get that, but from what the States did, that the l^th Amendment would have the scope that we attribute to it, and that consequently, school segregation laws would be invalidated, (pp. 31- 32) Realizing that his time for argument was nearly finished, Robinson moved promptly into a closing peroration. In conclusion, with respect to this historical evidence, I would like to say this. I think it is very clear that the framers intended to destroy the Black Codes. I think it is clear that they intended to deprive the States of all power to enact similar laws in the future. I think the evidence overall is clear that it was con templated and understood that the States would not be permitted to use its power to maintain a class or caste system based upon race or color, and that the l^th Amendment would operate as a prohibition against the imposition of any racial classification in respect of Civil Rights. I think secondly, it is very clear that the breadth of the Amendment is such that it necessarily encompasses school segregation, consequently is one of the activi ties which the Amendment was designed to protect. Necessarily, it would be invalidated by its provisions. I further submit that the overall evidence establishes substantial understanding by. the States ratifying the 14th Amendment that it would prohibit such segregation. The historical evidence in our opinion, also demon strates— well, there isn’t any question about this— that under Section 5 Congress could abolish such seg regation and that the Judiciary in the enforcement of the provisions of Section 1, in the light of future 278 conditions, could construe the Amendment as abolishing segregation of its own force, (pp. 32-33) ARGUMENT ON BEHALF OF APPELLANTS By Thurgood Marshall After a short recess, Thurgood Marshall continued the argument on behalf of appellants. Marshall promptly restated the Court1s questions two and three. With regard to the specific question as to whether or not the Supreme Court had judicial power in construing the Fourteenth Amendment to abolish segregation in the public schools, Marshall said appellants' answer to that question was "a flat 'Yes'" (p. 3*0. Marshall declared that appellants wanted to develop the answer to the question from legal precedents. He stated that legal precedents could be divided into three groups. The first group included cases the Supreme Court had handed down in recent years construing the Fifth and Fourteenth Amendments, relative to the power of the government to use race, class or national origin for classification purposes. The second group included the decisions of the Court construing the Fourteenth Amend ment during the period immediately subsequent to the rati fication of the Fourteenth Amendment. Marshall felt if there were no other cases on the point, the answer to question three would be simple. "However, there is a third group of cases, including at least two decisions, and some others inferentially in that group, which are heavily 279 relied upon by the appellees as compelling a contrary decision of this Court" (p. 35). The third group of cases are related to those supporting the separate-but- equal doctrine. As Marshall was about to begin comment on the first group of cases, Justice Jackson interrupted. JUSTICE JACKSON: May I suggest, I do not believe— MR. MARSHALL: Yes, sir. JUSTICE JACKSON: I do not believe the Court was troubled about its own cases. It has done a good deal of reading of those cases. MR. MARSHALL: And the first group are all from this very Court; I was just trying to relate them. JUSTICE JACKSON: Good. Maybe the question was more nearly, instead of power— in the strong sense~I only speak for myself not for others— it is the question of the propriety of exercising judicial power to reach this result, If the result would be reached, in the absence of any legislation. I do not think it was a question of power in the sense that our cases have dealt with it. It is a question— MR. MARSHALL: Well, so far— if I understand you correctly, Mr. Justice Jackson, you mean power that would come from the legislative history of the Four teenth Amendment? JUSTICE JACKSON: Whether the Amendment, with what light you can throw on it, makes it appropriate for judicial power, after all that has intervened, to exercise this power instead of— MR. MARSHALL: Leaving it to the Congress. JUSTICE JACKSON: That is right. I do not like to see you waste your time on a misunderstanding, because I do not think we had any doubt about our cases. Things are so often read— JUSTICE FRANKFURTER: And the books. MR. MARSHALL: Believe it or not, I have read about it. (pp. 36-37) 280 This exchange demonstrates again the admonition to counsel so often repeated in procedure for appellate advocacy: Do not cite too many cases in oral argument, especially cases with which the Court would presumably be familiar. Ably sensing the Court's wishes, Marshall immediately moved to the second group of cases, namely, those construing the Fourteenth Amendment immediately after its ratification. Marshall cited the Slaughterhouse Cases and Strauder v. West Virginia because he felt that those Supreme Court decisions were pertinent to the questions being considered by the Court. Marshall was about to argue those opinions, when the Chief Justice interrupted. CHIEF JUSTICE: I would like to have you discuss the question of power because I believe that is the ques tion the Court asked you to discuss. MR. MARSHALL: The power. CHIEF JUSTICE: Yes, the power. MR. MARSHALL: Yes, sir. On the power, Mr. Chief Justice Warren, we take the position, and we have covered it in the brief— THE CHIEF JUSTICE: Yes. MR. MARSHALL: — and that was the part that Mr. Robinson was to deal with this morning, and it is our under standing that the Fourteenth Amendment, following the Civil Rights Law, but not limited to the Civil Rights Act of 1866, in the debates, it is obvious, especially in the later debates, that left with the courts of the land was this problem of deciding as to the inter pretation, so that as to power, it is our position that the Court gets specific power in addition to the regular judiciary act in this Act of 1871, Title 8, which is now Title 8, Section *13, which, I jubmit, not only gives the Federal courts power, but imposes upon the Federal courts a specific duty which is different, 281 and this Is where we get our power point, and we thought that was sufficient. THE CHIEF JUSTICE: Yes. (pp. 38-39) Apparently the Chief Justice was either satisfied or confused by Marshall’s answer. The Chief Justice did not continue his questioning. It is readily apparent how the Chief Justice could have been confused by the rambling, ungrammatical almost incoherent reply by Marshall. An example of the searching, probing process of the Justices may be exemplified by the following exchange between Justice Frankfurter and Marshall. JUSTICE FRANKFURTER: Mr. Marshall— MR. MARSHALL: Yes, Mr. Justice Frankfurter. JUSTICE FRANKFURTER: — you trouble me about saying there has been legislation. You are not resting your claim here on the Act of 1871» and are then discussing whether that act is constitutional? MR. MARSHALL: No, sir. JUSTICE FRANKFURTER: You have to— you are resting, as I understand it, on the compulsions, the implications, derived from the Fourteenth Amendment, as such, in your cases? MR. MARSHALL: Yes, sir. JUSTICE FRANKFURTER: So I do not know why you con stantly revert to the fact that Congress has already exercised the power. I do not understand what you mean by that. MR. MARSHALL: Well, as I understand, running through the questions, especially those in number two, the second question— and, fortunately, insofar as this case is concerned, the appellees here claim that Congress has no power to legislate in this field at all, and, as I understand their position, the Courts and Congress 282 and nobody else can touch it, It is a matter solely for the States. JUSTICE FRANKFURTER: That we have not got here. MR. MARSHALL: No, sir; but it is our position that the Fourteenth Amendment was intended to leave to the courts the normal construction of the statute--I mean of the Constitution— and this Act of 1871 is merely recognizing that. JUSTICE FRANKFURTER: I do not know what that Act has to do with this, our problem. If your claim prevails, it must prevail by virtue of what flows out of the Fourteenth Amendment, as such. MR. MARSHALL: And would be— JUSTICE FRANKFURTER: And so far as I am concerned, 1871 need not be on the statute books. MR. MARSHALL: And we would still have a valid— JUSTICE FRANKFURTER: And does not help Ine any. MR. MARSHALL: Yes, sir. JUSTICE FRANKFURTER: All right, I understand. (pp. 39-^1) Feeling pressed for time, Marshall proceeded to the Strauder and Slaughterhouse cases. He felt that these cases provided the key to the answers sought by the Court because they were decided shortly after the enactment of the Fourteenth Amendment. When reduced to printed form, Marshall's analysis of the power question revealed a rambl ing and extremely confusing style of delivery. Once we admit, either by reading the legislative debates or reading cases such as Strauder the Slaughter house Cases and the other cases, once we arrive at the conclusion that the Fourteenth Amendment was intended to strike down all types of class and caste legislation, this on its face, involves class, then it seems to me that the only way the appellees can destroy that very 283 clear and logical approach is to show that It was in tended not to Include schools, not to Include segrega tion, and then we have the very interesting position— they immediately recognize that in their briefs, expeci- ally in the South Carolina brief, because they say that the McLaurin case involves separate but equal doctrine, and certainly if ever there was a case that did not in volve separate but equal, it was McLaurin, because as soon as the McLaurin case recognizes the broad intent of the Fourteenth Amendment to cover in progressive states education, graduate education, I mean, excuse me, legal education, then graduate education; and, as I understand the task the appellees have by force addressed them selves to, it is that even admitting that education is within the purview of the Fourteenth Amendment, when you get to elementary and high schools this Court loses its power to decide as to whether or not segregation in ele mentary and high schools is illegal. (pp. 44-45) Marshall next considered the cases that his oppo nents relied upon, beginning with Plessy v. Ferguson. He stated that the Plessy case involved railroads instead of education, transportation against education, and was a point of distinction. For the purpose of this argument however, there was no distinction, in fact "because it [Plessy] has been recognized as the originator of the separate but equal doctrine" (p. 47). Regarding Gong Lum v. Rice, Marshall argued that that decision stands for the proposition that, a state has a right to classify on the basis of class, race, or ancestry. Appellants1 position "is merely that the Gong Lum case, and the separate but equal doctrine of Plessy v. Ferguson. is Just out of step with the earlier decision in Slaughterhouse and Strauder v. West Virginia, and the recent cases in this Court" (p. 48). Justice Reed interrupted Marshall to ask him if he did not have to consider the Sweatt case as based on the 284 separate-but-equal doctrine. MR. MARSHALL: No, sir; I only say the McLaurin case does not embrace the separate but equal doctrine. I think in Sweatt v. Painter, the truth of the matter is that the decision was able to find that these intangi bles produced inequality, and to that extent— JUSTICE REED: But didn’t the McLaurin case? MR. MARSHALL: There was none of that. JUSTICE REED: Granting the facts in the statements showed that they were equal— MR. MARSHALL: Yes. JUSTICE REED: But didn’t the fact that they did not have the opportunity for association or discussion have any effect on it? MR. MARSHALL: Yes, sir. JUSTICE REED: And that, therefore, since they were grad uate students, they did not have equal opportunities. MR. MARSHALL: As I read it, sir, the best I could do was read it— and as I understand it, the conclusion in there in two particular places, he says that in a situa tion of this type the state is deprived of the power to make distinctions, and the other point it says, to make any difference in treatment, but it was my idea that the thrust of the McLaurin opinion is that segregation in and of itself, at least as far as graduate training is concerned, is invalid, and that it was that conclu sion was reached by first finding out— JUSTICE REED: But they gave the reasons why, for under graduate students, because they did not give equal opportunity. MR. MARSHALL: But the only reason, I submit, Mr. Justice Reed, on the McLaurin case and these cases is age, age of students, and the fact that obviously grad uate training is different from elementary training and high school training, but it has a difference, to use the language about another point in the McLaurin case, there is constitutional difference or rather it is insignificant as to the minor points, because if I understand, if we follow that to the logical conclusion, I do not have the slightest idea of where the line 285 would be; whether the line would be at the college level, the Junior college level, or the high school level, as to where this discussion with other pupils is of benefit, (pp. 48-50) Justice Frankfurter was apparently not pleased with the logic of Marshall’s argument. JUSTICE FRANKFURTER: Am I wrong in thinking that you must reject the basis of the decision in McLaurin for purposes of this case? MR. MARSHALL: You mean reject the basis of the fact that they were not allowed to associate? JUSTICE FRANKFURTER: No. The basis was the criterion of those cases was, whether each got the same thing. Your position in these cases is that that is not argu able, that you cannot differentiate, you cannot enter the domain of whether a black child or a white child gets the same educational advantages or facilities or opportunities. You must reject that, do you not? MR. MARSHALL: We reach— JUSTICE FRANKFURTER: Therefore, that is what I mean by saying you must reject the bases on which those cases went. MR. MARSHALL: We reject it to this extent: I think I am— JUSTICE FRANKFURTER: You reject the Delaware ground of decision, don't you? MR. MARSHALL: Ab s olut ely. JUSTICE FRANKFURTER: Well, therefore, you reject the basis of the McLaurin case. MR. MARSHALL: I think so far as our argument on the constitutional debates is concerned, and these two cases, that the state is deprived of any power to make any racial classifications in any governmental field. JUSTICE FRANKFURTER: So I understand. (pp. 50-51) Justice Frankfurter tried to lead Marshall into a clear statement of appellants' position. Marshall said that it 286 was clear to him that "under the Fourteenth Amendment you cannot separate people or denote that one shall go here and one shall go there if the facilities are absolutely equal" (p. 52). Still dissatisfied with Marshall's statement of the issue, Justice Frankfurter interrupted him. JUSTICE FRANKFURTER: But the point is important whether we are to decide that the facilities are equal or whether one says that is an irrelevant question, because you cannot apply that test between white and black. MR. MARSHALL: In this case it is irrelevant— JUSTICE FRANKFURTER: All right. MR. MARSHALL: (continuing) — for two reasons: one, it is not in the case because we have agreed that equality is outside the case, and our argument is deliberately broad enough to encompass a situation regardless of facilities, and we make no issue about it. (p. 52) Justice Frankfurter felt Marshall was arguing about two different legal propositions, and he was right. Un doubtedly, Marshall was aware that Sweatt and McLaurin were in fact based on the Plessy doctrine. The court in these cases found the law school inferior in Sweatt. and Mc Laurin1 s position in the graduate school; therefore the type of education received was unequal. Not wishing to admit these facts, Marshall argued at cross-purposes. The Mc Laurin case represented one and Marshall's argument repre sented another. Marshall had some difficulty finding the proper phrase with which to reply and then stated: MR. MARSHALL: The questions raised by this Court in June, as we understand it, requested us to find out 287 as to whether or not class legislation and, specifi cally, segregation, whether or not it, in and of itself, with nothing else, violated the Fourteenth Amendment. We have addressed ourselves to that in our brief, and we are convinced that the answer is that any segrega tion, which is for the purpose of setting up either class or caste legislation, is in and of itself a violation of the Fourteenth Amendment, with the only proviso that normally, in normal judicial proceedings, there must be a showing of injury or what have you. That is our position and that is up— JUSTICE REED: That is solely on the equal protection clause? MR. MARSHALL: Solely on the equal protection clause except, sir, that is true in South Carolina, but we are arguing two cases together. In Virginia we rely on equal protection and due pro cess both, but the argument in our brief is limited to equal protection; not that we have discarded due pro cess, but we did not have to get to it because of the wording of the questions of the Court. (pp. 53-5^) The following give and take between Justice Frankfurter and Marshall illustrates the Justice's skill at cross-examination. Had he not been fully informed and prepared, Marshall or any other counsel might have had a difficult time. JUSTICE FRANKFURTER: Your argument comes down to this: If in one of the states in which there is a large per centage of Negro voters, a preponderance, where we get a situation where X state has a preponderance of Negro voters who are actually going to the polls, and actu ally assert their preponderance and install a Negro governor to the extent that more money is spent for Negro education, better housing, better schools, more highly paid teachers, where teachers are more attracted, better maps, better school books, better everything than the white children enjoy— and I know I am making a fantastic, if you will, assumption— MR. MARSHALL: Yes. 288 JUSTICE FRANKFURTER: (continuing) — and yet there is segregation, you would come here and say that they cannot do that? MR. MARSHALL: If it is done by the state, the state has been deprived of— JUSTICE FRANKFURTER: That is your position; that is the legal— MR. MARSHALL: I think, sir, that is our flat legal position, that if it involves class or caste legis lation— JUSTICE FRANKFURTER: That is the antithesis of the McLaurin and the Gaines doctrine. MR. MARSHALL: Well, of the Gaines case, certainly so, sir. . . . I think that Gaines was interpreted within the separate but equal doctrine. I think the Sipuel was, with the addition of you have to do it now. I think that Sweatt and McLaurin, if I could disagree for a moment, are moving between the two; that is the way I look at it. JUSTICE FRANKFURTER: My only purpose is to try to see these things clearly without a simplifying darkness, and to try to see it clearly. (pp. 5^-56) Marshall skillfully escaped Justice .Frankfurter’s cross-examination and closed his argument. He stated there are no two equal schools, because there could be no two absolutely equal faculties in any school. He said simply, "that is the trouble with the doctrine of separate but equal; the doctrine of separate but equal assumes that two things can be equal" (p. 57). Justice Reed commented "There is not absolute equality, but substantially equal, in accordance with the terms of our cases." Answering Justice Reed and also concluding his argument, Marshall 289 made a strong frontal attack on Plessy: MR. MARSHALL: Yes, sir; starting with Plessy the word ’ 'substantial1 1 and we say in our brief— I mean we are absolutely serious about it—-that the use of the word "substantial" emphasizes that those cases in truth and in fact amend the Fourteenth Amendment by saying that equal protection can be obtained in a substantially equal fashion, and there is nothing in the debates that will hint in the slightest that they did not mean com plete equality— they said so— to raise the Negro up into the status of complete equality with the other people. That is the language they used. "Substantial" is a word that was put into the Four teenth Amendment by Plessy v. Ferguson, and I cannot find it, and it cannot be found anyplace in the debates. If it please the Court, we would like to, if possible, conserve the balance of the time for rebuttal. Mr. Robinson was a little over his time, and I cut mine down. Unless there are any questions on this parti cular point, because we still have some time left, I would like to leave that for rebuttal. THE CHIEF JUSTICE: Thank you. (pp. 57-58) ARGUMENT ON BEHALF OF APPELLEES By John W. Davis Chief Justice Warren then called on John W. Davis for argument on behalf of appellees, R. W. Elliott and others. Davis' consummate style, his choice of words and, his skill in turning a phrase were particularly and immedi ately noticeable. Davis' opening remarks probably engen dered a friendly warmth between counsel and the Court. Since Davis had appeared before the Supreme Court on Innumerable occasions, he undoubtedly felt at ease. At the previous hearing of this case I think all counsel on both sides of the controversy and in every case, realizing that it was an act of mercy and, per haps, even of piety, not to increase the reading matter that comes to this Court, briefed the cases in rather 290 concise fashion. An effort was apparent, and I am sure I shared it, to condense the controvery to the smallest compass it would bear. Now, for a rough guess I should think the motion for reargument has contributed somewhere between 1500 and 2000 pages to the possible entertainment, if not the illumination, of the Court. But I trust the Court will not hold counsel responsible for that proliferation, (pp. 58-59) In view of the fact that Chief Justice Warren was not on the bench at the time of the 1952 arguments, Davis outlined the present posture of the South Carolina case and Briggs v. Elliott. He said there was no remaining question of inequality in the South Carolina case and "the naked question is whether a separation of the races in the pri mary and secondary schools, which are the subject of this particular case, is of itself per se a violation of the Fourteenth Amendment" (p. 6l). Davis1 argument was obviously well planned. After his opening statements, he said he would next answer each of the Court's five questions. His brief answer to ques tion one was: We answer, the overwhelming preponderance of the evi dence demonstrates that the Congress which submitted, and the state legislatures which ratified, the Four teenth Amendment did not contemplate and did not under stand that it would abolish segregation in public schools, and in the time that is afforded I hope to vindicate that categorical reply, (pp. 61-62) Davis reasoned that certain fallacies underlay the appel lants' course in reaching their conclusions. He was refer ring particularly to the briefs of appellants. One 291 unwarranted assumption, said Davis, was "that the anti slavery pre-Civil War crusade, the abolitionist crusade, was directed not only against slavery but against segrega tion in schools" (p. 62). He argued that the thrust and movement of the abolitionist crusade was directed only against slavery. Nothing else can be deduced from that crusade. Another unjustified assumption was that the radical Republicans controlled the action of 39th Congress. The 39th Congress never went as far as some of the radical Republicans wished it to go and, perhaps, there has never been a Congress in which the debates furnished less pablum on which history might feed. (pp. 62-63) Through expert use of the terms "fallacies," "unwarranted," "assumptions," "unjustified," and the utilization of facts contrary to those of appellants, Davis pointed out the weaknesses of his opponents’ contentions. After refuting the appellants’ arguments on the Court's question concern ing congressional and state interpretation of the Four teenth Amendment, when they passed and ratified it, Davis referred to the presence of the Attorney General in Court and to the conclusions reached by him in the government's brief. He reaches the conclusion, or those who speak for him— I am not speaking in the personal sense but only of the office— he reaches the conclusion, as stated in his brief, historical facts, after some 400 pages of re cital, are too equivocal and inconclusive— I am having some trouble with my own chirography here— the histori cal facts are too equivocal and inconclusive to formu late a solid basis on which this Court can determine the application of the amendment to the question of school segregation as it exists today, (p. 65) 292 Even Davis could Jumble his terms. Generally, however, he was obviously one of the most articulate advocates before the Court. The printed transcript re veals a colorful style. He frequently used striking phrases or words. It may be noticed below how he compress ed his point of view into several short paragraphs and simultaneously attempted to destroy his opponents' argu ment. Coupled with those techniques, he displayed quick wit and humor— ingredients in appellate advocacy used sparingly, carefully, and successfully only by experienced and able advocates. Referring to the Attorney General's brief, Davis commented: After so prolonged a study, as has evidently been made, it does seem rather a lame and impotent conclu sion, not calculated to be of a great deal of help to the Court, and I think the cause of that despair on the part of the learned Attorney General and his aides, is that they have fallen into the same fallacy into which the appellants have fallen. They endeavor by collating all that was said on either side whenever the question raged, and it was not a single instance— they hope out of that to distill some attar that will exhibit what can fairly be called the congressional intent. It is no wonder, that having plunged into that Serbonlan bog, they are in a state of more or less despair when they are ahle to emerge. Now, your Honors then are presented with this: we say there is no warrant for the assertion that the Four teenth Amendment dealt with the school question. The appellants say that from the debates in Congress it is perfectly evident that the Congress wanted to deal with the school question, and the Attorney General, as a friend of the Court, says he does not know which is correct. So your Honors are afforded the reasonable field for selection. (Laughter) (p. 66) 293 At this point Davis demonstrated the overwhelming impor tance of complete preparation. Caught short of time, he was nevertheless able to quickly, concisely, and decisively conclude his argument. He assessed his situation as follows: I hoped at one time that it would be possible to take up each action of Congress upon which we rely and vindicate our interpretation of it. I see now that I underestimated the time that would be at my disposal, or overestimated my power of delivery. I shall have to speak now more or less in word of catalog and leave to our brief and to our appendices confirmation of the relevancy of these incidents. (p. 67) He then made reference to the debates on the Freedman’s Bureau, the Civil Rights Act of 1866, and various amend ments. In a series of succinct, explicit and uninter rupted statements, Davis compressed his lengthy historical documentation into approximately ten minutes. He concluded that there was no evidence that the 39th Congress and the state legislatures and conventions which ratified the Fourteenth Amendment, understood it to abolish segregation in public schools. Having thus answered the Court's first question in the negative, Davis very briefly directed his attention to the second question. It was not the understanding of the framers [of the Fourteenth Amendment] that Congress might, in the exercise of the power under Section 5 of the Amend ment [that Congress shall have the power to enforce this Amendment by appropriate legislation] to abolish segregation, if we are right in the initial proposition that neither Congress nor the states thought the 294 Amendment was dealing with the question of segregated schools, obviously Section 5 of the Amendment could not give Congress more power than the Amendment Itself had originally embraced. But the power given to Congress we had noted In Section 5 Is the power that— I thought I had the exact language — to enforce the provision of this Article. And' Section 5 is not a Trojan horse which opened to Congress a wide field in which Congress might expand the bound aries of the Article itself, (pp. 76-77) Regarding judicial power, Davis further contended "that you interpret the Amendment as including something that it does not include is not to interpret the Amendment but is to amend the Amendment, which is beyond the power of the Court" (pp. 77-78). Davis moved quickly to the Court’s third question which asked: On the assumption the answers to question two (a) and (b) do not dispose of the issue, is it within the judicial power in construing the amendment to abolish segregation in the public schools? Davis’ answer was in the negative. Before we answer, we preface that with an expression of the extreme difficulty we have in making the initial assumption on which that question is based, where in our humble judgment the answers to questions one and to two (a) and (b) do dispose of the issue in this case and dispose of it in the clearest and most emphatic manner, (p. 78) Proceeding in a logical, step by step analysis, Davis reasoned that if in construing the Amendment the principle of stare decisis is applied, controlling precedents pre clude a construction which would abolish segregation in public schools. The skillful and logical development of 295 his argument was enhanced by terse and descriptive phrases. With reference to stare decisis Davis noted: But be that doctrine what it may, somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. That is the opinion which we held when we filed our former brief in this case. We relied on the fact that this Court has not once but seven times, I think it is, pronounced in favor of the separate but equal doctrine. We relied on the fact that the courts of last appeal of some sixteen or eighteen States have passed upon the validity of the separate but equal doctrine vis-a-vis the Fourteenth Amendment. We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia. We relied on the fact that 23 of the ratifying States— I think my figures are right, I am not sure— had by legislative action evinced their conviction that the Fourteenth Amendment was not offended by segregation, and we said in effect that that argument— and I am bold enough to repeat it here now— that in the language of Judge Parker in his opinion below, after that had been the consistent history for over three-quarters of a century, it was late indeed in the day to disturb it on any theoretical or sociological basis. We stand on that proposition. (p. 79) As to the fourth and fifth questions propounded by the Court, Davis said those questions "give us a little disturbance, and I don’t feel they will greatly disturb the Court" (p. 82). He added: As to the question of the right of the Court to post pone the remedy, we think that adheres in every court of equity, and there has been no questions about it as to power. 296 The fifth question, whether the Court should formulate a decree, we find nothing here on which this Court could formulate a decree, nor do we think the Court below has any power to formulate a decree, reciting in what manner these schools are to be alterative at all, and what course the State of South Carolina shall take concerning it. (p. 82) Davis then proceeded to his closing statement. This writer felt compelled to quote this portion of Davis' argument in full. There is no better way to illustrate the unique oratorical prowess of this advocate who had argued so many times before the United States Supreme Court. Throughout Davis' presentation, it was possible to detect his complete sense of security and authoritativeness. Aside from the clarity and lucidity, he was aware of the possible emotional impact of his argument. Your Honors do not sit, and cannot sit as a glorified Board of Education for the State of South Carolina or any other State. Neither can the District Court. Assuming, in the language of the old treaties about war, it is not to be expected and that God forbid, that the Court should find that the Statutes of the State of South Carolina violated the Constitution, it can so declare. If it should find that inequality is being practiced in the schools, it can enjoin its continuance. Neither this Court nor any other court, I respectfully submit, can sit in the chairs of the legislature of South Carolina and mold its educational system, and if it is found to be in its present form unacceptable, the State of South Carolina must devise the alternative. It establishes the schools, it pays the funds, and it has the sole power to educate its citizens. What they would do under these circumstances, I don't know. I do know, if the testimony is to be believed, that the result would not be pleasing. 297 Let me say this for the State of South Carolina. It does not come here as Thad Stevens would have wished in sack cloth and ashes. It believes that its legis lation is not offensive to the Constitution of the United States. It Is confident of Its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools, and it thinks It a thousand pities that by this controversy there should be urged the return to an experiment which gives no more promise of success today than when it was written Into their Constitution during what I call the tragic era. I am reminded— and I hope it won't be treated as a reflection on anybody— of Aesop's fable of the dog and the meat: the dog, with a fine piece of meat in his mouth, crossed a bridge and saw his shadow in the stream and plunged for it and lost both substance and shadow. Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige? It is not my part to offer advice to.the appellants and their supporters or sympathizers, and certainly not to the learned counsel. No doubt they think what they propose is best, and I do not challenge their sincerity in any particular period but I entreat them to remember the age-old motto that the best is often the enemy of the good. (pp. 82-84) ARGUMENT ON BEHALF OF APPELLEES3 by T. Justin Moore As soon as Davis completed his argument, T. Justin Moore argued next on behalf of the appellees, County ^Transcript of Oral Argument Briggs v. Elliott and Davis v. County School Board of Prince Edward County. Virginia. December 8. 1953. Unless otherwise indicated, all quotations in this section are from the Transcript. School Board of Prince Edward County, Virginia. Initially Moore told the Court that since the facts in the Virginia case were similar to those in the South Carolina case, he realized there would be some repetition of material. Since the present Chief Justice (.Warren) had not sat during the arguments of the previous year, Moore restated the facts of the Virginia case. In two or three minutes, Moore informed the Court of the present posture of the Virginia case and cited a finding of the lower court which "found no hurt or harm to either race," on account of segregation in the public schools. In regard to Moore’s approach to the argument, it should be recalled that two cases were com bined for argument on December 7, 1953. Argument began at 1:Q5 P.M. When Moore rose to speak, the Court had been listening to other counsel for about three hours and fif teen minutes. Feeling that Davis had fully covered the first three questions, Moore moved immediately to question four and five. He may also have felt that it was late in the Court's day to hear an extended discussion of material relative to questions one, two, and three. He probably concluded that argument on questions four and five would be "new" subject matter for the Court's attention and that his answers to those two questions could he covered in the remaining time allotted to him. Question four, in substance, asked counsel for their position on the issue of adjustment if the Court 299 decided segregation violated the Fourteenth Amendment. Moore*s brief and succinct answer was as follows: . . . in the event we are faced with the distressing situation of an adverse decree, that the Court as a Court of Equity plainly has the power and the duty, in situations like this, to permit a gradual adjustment, as a Court of Equity considering the balancing of equities. That is all briefed and I don't want to take up time in that discussion. (p. 89) In ansering the fifth question, (if an adverse decree, whether the case should be remanded to the lower court or should a master be appointed) Moore said: We think it perfectly clear that if there should be this unhappy, unfortunate decree, that the case should be remanded to the lower court where local con ditions could be considered, where new evidence would be received. Considering what might be appropriate in Kansas, wouldn't necessarily be appropriate in South Carolina or Virginia. (p. 90) The following exchange between Justice Frankfurter and Moore reflected Moore's desire to avoid giving the impres sion of evading an answer: JUSTICE FRANKFURTER: What kind of guidance, if any, should be given to the District Court on this unhappy hypothesis of your argument? MR. MOORE: It really distresses me to face that ques tion. About all I can say, your Honor, is we feel the courts should be given the broadest possible discretion to act along reasonable lines. It is a matter of a reasonable exercise of discretion. That is the best answer, I believe, I can give. JUSTICE FRANKFURTER: I suppose, and Mr. Davis touched on it before when it was asked, it is one thing to ask a District Court to lay out districts, school districts. MR. MOORE: Yes. 300 JUSTICE FRANKFURTER: I suppose that is one thing. But to have the parties or the State which would be in volved, what ever the political unit, say ’ ’this is what we are going to do" and have the District Court pass on whether thac conforms to this hypothetical decree, is another thing, isn’t it? MR. MOORE: Well, Your Honor, we think, to further answer the question— I did not intend to just drop it s ummarily. JUSTICE FRANKFURTER: I beg your pardon, I am sorry. Please go on your way, Mr. Moore. MR. MOORE: No, no, I want to answer Your Honor. (pp. 90-91) In the few remaining minutes before the Court adjourned for the day, Moore returned to the first question. He listed six major pieces of legislation that were in volved in that question. The first one was the Freedmen's, the first supple mental Freedmen's Bureau Bill In this Thirty-Ninth Congress of 1866. . . The second is the Civil Rights Act of 1866. The third is the Fourteenth Amendment Resolution. The fourth Is the legislation with regard to district schools. The fifth are the Amnesty Bills and sixth is the Civil Rights [Act] of 1875. Cp. 93) In an obviously well organized format for his argument, Moore outlined what he would deal with in the next day's hearing. At 4:30 P.M. the Court arose. At 12:10 P.M. the following day the Court recon vened. The Chief Justice began: THE CHIEF JUSTICE: This is in the matter of a hearing before the United States Supreme Court in the Segrega tion cases held on Tuesday, December 8, 1953. (p. 100) Moore quickly summarized his last argument of the previous day. He then proceeded to analyze the six pieces of 301 legislation he felt best described the intent of the Thirty- Ninth Congress and thereby answered the Court's first two questions. His statements were clear. His evidence was presented in an exact, condensed style. Though Moore was able to compress thoughts as Davis had before him, there was a noticeable difference in the choice of words used by each man. Davis' condensation of ideas showed a florid quality; Moore expressed himself less colorfully. He spoke for approximately twenty minutes, uninterrupted by the Court, concentrating his argument on the third question as to whether the Court had Judicial power to abolish segregation. Moore said there were perhaps three approaches to the answer: The first is whether or not this is a case where there should be a restraint of Judicial power and the matter left to the legislative bodies. The second is whether or not in the light of pre cedents this is a case lasting over these hundred years where it would be an abuse of power in the light of that history. It is what Mr. Davis called yesterday the time when there should be some time a period of repose when a matter is really settled. That is the second question. And the third branch is whether or not there is some idea here of a living constitution and changing conditions that should make a difference. (p. 110) The logical development of Moore's argument can be demon strated by his skill in movement from idea to idea. He developed his thoughts from the specific example to the general principle. After presenting evidence to support his contentions as to Judicial power and his defense of the 302 Plessy separate-but-equal doctrine, he said: Now if we are going to look at this matter from the standpoint of precedent, the rule is pretty simple. The rule is that the State may classify and the test of its classification is merely within the bounds of reason. Mr. Justice Hughes well said, quoting him: "The inquiry must be whether considering the end in view, the statute passes the bounds of reason and assumes the character of a mere arbitrary fiat. (p. 114) He used the Hughes quote as a pivot to develop the remainder of his argument. "Now how is ’reasonable* to be decided here? It can’t be decided in a vacuum. It has got to be decided in the light of all the surrounding facts" (p. 114). Moore recalled the evidence of the social scientists pre sented in the trial of the Virginia case. Now what are we going to do with that testimony? Are we just going to disregard it? Can this Court now say that on the basis of this record, segregation is beyond the bounds of reason, that it is an arbitrary fiat? We don’t believe so. (p. 115) i Moore skillfully supported a defense of his own position by associating his point of view with that of a great Justice, Mr. Justice Holmes. Mr. Justice Holmes had very well put the thought when he said: "There is nothing that I deprecate more than the use of the 14th Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires in the insulated chambers afforded by the several States, even though those experiments may seem futile or even noxious to me and those whose Judgment I most respect." Is that sound? We believe it is. (p. 116) Concluding his argument, he again employed the persuasive technique of associating his cause with Judges and Justices who agreed with him: 303 And I want to leave that matter Just with this thought which our friend Judge Parker in the South Carolina case has expressed better than anywhere [sic] I know. Here is the way he summed it up, after refer ring to Plessy v. Ferguson and Gong Lum and the great judges that sat in those cases. He said: "To this we may add that when 17 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, includ ing the unanimous approval of the Supreme Court of the United States, at a time when that Court included Chief Justice Taft, 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 the legis lative bodies of so wide a territory, including the Congress of the United States and the great judges of high courts, have knowingly defied the Constitution for so long a period or that they have acted in ignor ance of the meaning of its provisions. The constitu tional 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 memhers of the Judiciary have no more right to read their ideas of sociology In the Constitution than their ideas of economics." Thank you. (pp. 117-118) ARGUMENT ON BEHALF OF APPELLEES By J. Lindsay Almond Chief Justice Warren next called on J. Lindsay Almond on behalf of the appellees in the Virginia case. Almond had to argue quickly. He only had five minutes remaining to him. May it please the Court, Mr. Moore assigned to me a rather Herculean task, and I have no time in which to address myself to that phase of the case which I would like to discuss. As the only official of one of the seceding States privileged to actively participate in this case, I Just want to, If Your Honors please, take a few moments, the few moments which remain, to 304 bring to your attention this phase: What are they here asking for? (pp. 118-119) As was so obvious in his 1952 appearance, Almond’s role seemed that of a "fear-monger.” In 1952 he warned of the dire consequences of desegregation in Virginia. In 1953, he warned the Court that the appellants sought to wreck havoc with our basic and well-established institutions. They are asking you to make a decision contrary to the spirit, the intent and purpose of the Fourteenth Amendment. They are asking you to amend the Constitution of the United States and to go further than the Congress ever intended that this Court should go. They are asking you to disturb and tear down a principle of stare decisis enunciated so clearly in 1896 in Plessy v. Ferguson. . . . They are asking you to overturn the principle of stare decisis laid down by this Court and courts of last resort of every State in this Union. . . . They are asking you to disturb the unfolding evo lutionary process of education where from the dark days of the depraved institution of slavery, with the help and the sympathy and the love and respect of the white people of the South, the colored man has risen under that educational process to a place of emminence and respect throughout this Nation. (pp. 119-120) In his answer to the Court's question No. 5 as to what dir ections the Court should provide, should there be a decree abolishing segregation, Almond said: "We must determine whether we will have one system or three systems, if the dual system is destroyed" (p. 121). Justice Frankfurter sought clarification of Almond's statement. The exchange which followed demonstrated counsel's attempt to answer 305 directly and at the same time stay with the line of reason ing he had established. JUSTICE FRANKFURTER: General Almond, let me ask you a question to see whether I understand your suggestion. MR. ALMOND: Yes. JUSTICE FRANKFURTER: Of these systems, the choice is of going to what is called an integrated school but in default of that, deciding of the choice than, it will be shepherded into one or the other, is that what you mean by the decree? MR. ALMOND: I didn’t mean, Mr. Justice Frankfurter, shepherding in that sense. JUSTICE FRANKFURTER: That is a bad word. If they do not choose to go to unmixed schools, then they would have to go to a separate school, is that right, if they do not choose to go to a mixed school which is open to them, then they would have to go to one or the other, is that what you mean, General Almond? MR. ALMOND: I said, sir, that that is the matter of policy which the States— JUSTICE FRANKFURTER: Yes, I understand, but is that what you meant? MR. ALMOND: Yes. JUSTICE FRANKFURTER: Those are the three which you have in mind? MR. ALMOND: That is right, sir, which the State would have to determine. JUSTICE FRANKFURTER: Yes, I understand that. It is a very hypothetical answer on that, but I Just wanted to understand you. MR. ALMOND: That is a -matter of legislative policy. (pp. 121-122) Almond concluded his argument by making a most serious charge. "Why have the seceding stated been indicted by 306 the opposition of treachery, of fraud, of conniving to subvert the Fourteenth Amendment" (p. 122)? No one— neither the Court nor counsel— made a charge involving acts such as treachery, fraud or connivance. The effect of Almond's argument was lessened by what might be termed his emotionalism. REBUTTAL ON BEHALF OF APPELLANTS By Thurgood Marshall When Thurgood Marshall rose for rebuttal, Justice Frankfurter stated: JUSTICE FRANKFURTER: Mr. Marshall, I do not want to interrupt your closing argument, but I hope before you sit down you will state to the Court whether you have anything more to say on the question of remedies. MR. MARSHALL: Yes, sir. JUSTICE FRANKFURTER: In case you should prevail, more than is contained in your brief. MR. MARSHALL: Yes, sir, I would be glad to get to that first, Mr. Justice Frankfurter. (p. 12?) Marshall was obviously prepared for this line of questioning from Justice Frankfurter. Frankfurter was seriously concerned with the question in 1952 and as a decision drew nearer, his anxiety as to the form of the ultimate decree deepened. Marshall said that nothing, "administrative-wise," would take longer than a year. If they don't have staff enough to do these adminis trative things, the sovereign States can hire more people to do it. So for that reason I don't think it should take more than a year for them to adequately handle the 307 administrative techniques, and I submit that a long period of time would get the lower court into the legislative field as to whether or not to do it this way or that way. Specifically, I am a firm believer that especially insofar as the Federal Courts are concerned, their duty and responsibility ends with telling the State, in this field, at least, what you can’t do. And I don’t think anybody is recommending to this court that this Court take over the administrative Job. Obviously, that is not recommended by anyone. So with that, I think that is our position. (pp. 124a- 125) Marshall next sought to rebut the appellees’ classification arguments. Marshall said the opposition denied "that there is any race prejudice involved in these cases. They deny that there is any intention to discriminate. But throughout the brief and throughout the argu ment they not only recognize that there is a race pro blem involved, but they emphasize that that is the whole problem. And for the life of me, you can't read the debates, even the sections they rely on, without an understanding that the 14th Amendment took away from the States the power to use race. (p. 125) Marshall turned the evidence presented by his opposition to his own advantage. Moore and Davis had used 1950 Census figures to show that ten and a half million Negroes or 70 per cent of the Negroes in the United States lived in the 17 states having segregation. In regard to those "hor rible Census figures," Marshall said, The horrible number of Negroes in the South— and I thought at some stage it would be recognized by them that it shows that in truth, in fact in this country this high percentage of Negroes they talk about can be used to demonstrate to the world that insofar as this country is concerned, two-thirds of the Negroes are compelled to submit to segregation. (p. 126) 308 In his closing statement for appellees, Davis had stated that South Carolina provided equal education and asked the Court whether that should be thrown away on some fancied question of racial prestige. In rebuttal Marshall replied: As Mr. Davis said yesterday, the only thing the Negroes are trying to get is prestige. Exactly correct. Ever since the Emancipation Procla mation, the Negro has been trying to get what was recognized in Strauder v. West Virginia, which is the same status as anybody else regardless of race. (p. 130) Then in a colloquial manner Marshall continued: "I can’t for the life of me— it seems to me they recommend to us what we should do. It seems to me they should show some effort on their part to conform their states to the clear intent of past decisions" (p. 130). Marshall delivered his rebuttal in terse, forceful language. He systematically attacked the contentions made by his opponents both in their briefs and oral arguments. Marshall’s rebuttal in this instance differed from his previous appearances in these cases. Here, as he concluded his argument, he reflected feelings of irritation, resentment, animosity, exasperation, perhaps anger. He pointed out that in four or five Southern states segregation was broken down without law suits. The truth of the matter is that I for one have more confidence in the people of the South, white and colored, than the lawyers on the other side. I sun convinced they are Just as lawful as anybody else, and once the law is laid down, that is all there is to it. (p. 132) 309 As for the problems of Implementation of a decree favoring desegregation, Marshall said there Is no way you can repay lost school years. These children In these cases are guaranteed by the States some twelve years of education in varying de grees, and this idea, if I understand it, to leave it to the States until they work it out— and I think that is a most Ingenious argument— you leave it to the States, they say, and then they say that the States haven't done anything about it in a hundred years, so for that reason this Court doesn't touch it. (p. 135) Marshall pointed out that the duty of following the Four teenth Amendment is placed upon the States. The duty of enforcing the Fourteenth Amendment is placed upon this Court, and the argument that they make over and over again to my mind is the same type of argument they charge us with making, the same argument Charles Sumner made. Possibly so. (p. 135) Referring to the discussions of the debates in the 39th Congress Marshall said: "It makes no progress for us to find out who made what argument" (p. 136). In a folksy style Marshall injected the following thought: I got the feeling on hearing the discussion yesterday that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something. Everybody knows that is not true. Those same kids in Virginia and South Carolina— and I have seen them do it— they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school. There is some magic to it. You’can have them voting together, you can have them not restricted because of law in the houses they live in. You can have them going to the same State University and the same College, but if they go to elementary and high school, the world will fall apart, (pp. 136-137) 310 In conclusion Marshall stated: They can't take race out of this case. Prom the day this case was filed until this moment, nobody has In any form or fashion, despite the fact I made it clear in the opening argument that I was relying on it, done anything to distinguish this statute from the Black Codes, which they must admit, because nobody can dis pute, say anything anybody wants to say, one way or the other, the Fourteenth Amendment was intended to deprive the States of power to enforce Black Codes or anything else like it. We charge that they are Black Codes. They obviously are Black Codes if you read them. They haven't denied that they are Black Codes, so if the Court wants to very narrowly decide this case, they can decide it on that point. So whichever way it is done, the only way that this Court can decide this case in opposition to our position is that there must be some reason which gives the State the right to make a classification that they can make in regard to nothing else in regard to Negroes, and we submit the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings. Nobody will stand in the Court and urge that, and in order to arrive at the decision that they want us to arrive at, there would have to be some recognition of a reason why all of the multitudinous groups of people in this country you have to single out Negroes and give them the separate treatment. It can't be because of slavery in the past, because there are very few groups in this country that haven't had slavery some place back in the history of their groups. It can't be color because there are Negroes as white as the drifted snow, with blue eyes, and they are Just as segregated as the colored man. The only thing can be is an inherent determination that the people who were formerly in slavery, regard less of anything else, shall be kept as near that stage as is possible, and now is the time, we submit, that this Court should make it clear that that is not what our Constitution stands for. Thank vou sir. (pp. 137-138) 311 ARGUMENT ON BEHALF OF THE UNITED STATES by J. Lee Rankin The Chief Justice then called Mr. J. Lee Rankin, Assistant Attorney General, for argument on behalf of the United States. After the traditional "May it please the Court," Rankin stated that the United States appeared in the action as a friend of the Court; that the only excuse for being there was to assist the Court in regard to the problems presented. In well structured, simple, explicit language, Rankin declared: We felt it incumbent upon us in the Department of Justice to try to arrive at the truth in the background and the history as the Court inquired for it. And we saw it as our duty to approach that history much as historians would, and try to draw from it the facts just as objectively as any party could on either side, for someone who had no personal interest in the case. That was the approach that we made to this case in trying to help the Court in the answer of these ques tions. (p. 139) In a letter to this writer, Rankin answered a question put to him regarding preparation for this oral argument. He responded: I planned my oral argument independently so as to merely touch upon the materials in the written argu ment, recognizing that, as stated in the Government's brief, the history of the Fourteenth Amendment was not controlling regarding the decision of the cases before the Court, and then proceeding to the several questions that I thought would be critical in the Court's arriving at its decision in.favor of ordering desegregation in the public school.^ ^Letter to the writer, May 17, 1965. 312 Early In his oral argument Rankin stated frankly: We have been chided because we did not come forth In our brief In answer to the questions with certain history. We did not conceive it as our duty to develop any history. We thought It our duty to present what the history showed, whether It hurt or helped either side, (p. 139) Rankin had no apology for his office’s failure to provide positive answers to the Court’s questions, because he felt the Court's questions were important "to this Court in helping them to decide this, one of the greatest cases that this Court has had before it" (p. 1^0). Rankin’s answers to questions from Frankfurter illustrated that the Attorney General was able to reply quickly and fluently. JUSTICE FRANKFURTER: I suppose you would say that the action since 1871 is too ex poste facto to be relevant. MR. RANKIN: Very largely, your Honor. It all is re moved from the scene. Changes have occurred in Con gress over the years. The framers were not partici pants in most of that action, and the Fourteenth Amendment was not involved in those questions. (p. 1^3) Later Justice Jackson interrupted Rankin as he prepared to discuss the history of the ratifying States. JUSTICE JACKSON: Before you go into that, isn't the one thing that is perfectly clear under the Fourteenth Amendment, that Congress is given the power and the duty to enforce the Fourteenth Amendment, by legisla tion. You don't disagree with that, do you? You believe that, don't you? MR. RANKIN: No, there is no question but— JUSTICE JACKSON: And the other thing that is clear is that they have never done, have never enacted an act that deals with this subject. 313 MR. RANKIN: There is no question but what Congress has the power under Section 5 to enforce the Fourteenth Amendment. JUSTICE JACKSON: And If the Amendment reaches segrega tion, they have the power to enforce It and set up machinery to make It effective. There Is no doubt about that, Is there, and It hasn’t been done. Now If our representative Institutions have failed— Is that the point? MR. RANKIN: No, because this Court has In our under standing concurrent jurisdiction. (pp. 145-146) Justice Frankfurter queried Rankin about the intent of successive Congresses regarding segregation after 1871. The Justice felt that legislation by Congresses since 1871 does not contravene the deepest presuppositions of our Constitution, or am I overstating what that means or are you saying that legislation does not mean anything but what it does? It just segregates, that is all. (p. 1^9) Rankin answered immediately and surely. His remarks indi cate his respect for the Court, knowledge of his subject matter, and resiliency necessary to meet a change of course in his argument. MR. RANKIN: Well, not exactly. It seems that you have to find a conscious determination by Congress that segregation was permitted under the Fourteenth Amend ment . JUSTICE FRANKFURTER: You think legislation by Congress is like the British Empire, something that is acquired in a fit of absentmindedness? (Laughter) MR. RANKIN: I couldn't make that charge before this Court, and I wouldn't want to be quoted in that manner. There might be times that that occurred, but I think Congress is well aware that when that does happen, the subject matter does not deserve greater consideration than it has at the moment, and that it is ordinarily pretty well taken care of under the processes. 314 With regard to the entire question, it seems that there should be another factor that the Court should consider in this matter. JUSTICE REED: Are you going to discuss later the action of the States? MR. RANKIN: Yes. I will proceed now to the question of the legislation of the States in regard to this matter. (pp. 149-150) After his summary of the debates, Rankin said that the evidence, the record of history, did not sustain any conclusive assumptions about the intent of the states who seceded and later ratified the Fourteenth Amendment. Justice Douglas, seeking to clarify the issue before the Court, asked: JUSTICE DOUGLAS: The Department of Justice goes no further than to say that first we can decide this case, these cases, and second, we can decide them under what, on the basis of history? MR. RANKIN: No, Your Honor, no. Our position is that the history helps the Court in showing that some of the conclusions that have been asserted from history are not borne out. The history as related by the Slaughter House cases and the Strauder cases is the history that the Department of Justice found to be correct in its review of the entire matter. That by reason of that history, it is shown that the pervading purpose of the Fourteenth Amendment was to establish that all men are equal, that they are equal before the law, that they are entitled to equal pro tection of the law, that no distinction can ever be made upon the basis of race or color, and that there fore this Court, In applying the rules it has laid down in many cases looking to that pervading purpose, can find only one answer to this case, and that is when they stand before the bar of this Court and say that "the reason that we want to segregate black children from white children is because of racism, Just because of their color," that the Fourteenth Amendment does not permit that to happen, because if there was any thing the Fourteenth Amendment tried to do for this 315 country, It was to make It clear that no discrimination could ever be made, based upon race or color, and that is the position of the Department of Justice in that matter. JUSTICE FRANKFURTER: That is your third conclusion on page 186 of your brief, isn’t it? MR. RANKIN: Yes. (pp. 158-159) We know from the remarks In the printed transcript that the Justices had counsels’ briefs before them. After reading several paragraphs, Justice Douglas continued: JUSTICE DOUGLAS: I would think that would be obvious, that if the Court holds segregation [to] be unconsti tutional, that we would— and it was within the judicial competence, it would be within our duty to enter an appropriate decree to that effect. But my question went further than that. It was what are the merits, whether the Department of Justice had taken a position? MR. RANKIN: Yes. I think your Honor is correct in that regard. . . we did limit our brief in our— JUSTICE DOUGLAS: I Just wanted to clear up that con fusion in my mind. MR. RANKIN: Yes. (pp. 159-160) At this point, Justice Frankfurter repeated his understand ing of the position being taken by the Department of Justice. JUSTICE FRANKFURTER: You say this Is the kind of a question where you are responding to the inquiry of the Court as to what the form of decree should be. The Department has already in its prior brief and in this brief, if I have the entire brief, made its position perfectly clear that it thinks segregation is out lawed by the Fourteenth Amendment, and on pages 186 and 187 you indicate the kind of a decree that should follow such a declaration, is that correct? MR. RANKIN: That is correct, (p. 160) 316 Justice Reed began a line of questioning which again Illustrates how members of the Court seek to clarify Issues. JUSTICE REED: Are you leaving the third question? MR. RANKIN: I thought I had dealt with It, but I will be glad to try to answer any further questions. JUSTICE REED: I did not quite understand what you were saying In regard to that. The third question is on the assumption the answers to questions two (a) and (b) do not dispose of the issue, is it within the Judicial power of the Fourteenth Amendment to abolish segregation? Now that is saying that the argument over history is inconclusive, as I understand it. MR. RANKIN: That's right. JUSTICE REED: Assuming that that is inconclusive, then does this Court through its own power have the right--is that the belief of the Government— has the power to declare segregation unconstitutional? MR. RANKIN: The position of the Government is that the Court does have the power and that it has the duty. JUSTICE REED: Where do we get that power, and how? MR. RANKIN: By reason of the power given to it under the Constitution and by act of Congress and the— JUSTICE REED: So far as the Fourteenth Amendment is concerned by the very words of the Fourteenth Amend ment? MR. RANKIN: Yes, by reason of Section 1 which says that these rights shall not be denied by any State, and in the interpretation of that language the Court, in applying it, has the right to find, and according to its decisions will find, that the parties are en titled to this. JUSTICE REED: Regardless of the view of Congress, regardless of the history of it, which you say is inconclusive, that the wording covers segregation? 317 MR. RANKIN: I think the best answer to that would be the history In regard to— JUSTICE REED: Is that what we are trying to determine now? MR. RANKIN: Yes* JUSTICE REED: It could very well be. That Is what is striking to me, if you lay aside the history, lay aside what has happened, and the intention as expressed in Congress, then we havd nothing left except the bare words. MR. RANKIN: That is correct. JUSTICE REED: And those you say require the invali dation of all the laws of segregation? MR. RANKIN: Yes. (pp. 161-163) After a half hour recess Rankin resumed his argu ment dealing with the question of remedy after the Court determined whether or not rights had been violated In the school cases. Rankin suggested that the burden should be— upon the defendants to present and satisfy the lower court as to the extent of time that is necessary to make such an adjustment in the school system, and that plan should be presented to the Court, not for the purpose of determining at all the wisdom of the plan, but only to determine and satisfy the Court that, according to criteria presented and set out by this Court, that the plan satisfies the constitutional requirements of our Constitution and its Amendments. (p. 167) The Assistant Attorney General recommended "a year for the presentation and consideration of the plan, not because that is an exact standard, but with the idea that it might involve the principle of handling the matter with deliber ate speed" (pp. 167-168). (It may be recalled that the phrase "with all deliberate speed" was used in the final 318 disposition of the school cases In the Warren opinion Brown v. Board of Education. For about 6 to 8 minutes Justice Jackson and Rankin carried on an exchange which revealed the Justice's obvious concern with the question of remedy. JUSTICE JACKSON: Mr. Rankin, may I ask you a question or two about this remedy you suggest. We have no state before us, have we? We have several school districts. MR. RANKIN: Yes, that is correct. JUSTICE JACKSON: I suppose that even if we said that the state statutes or state constitutional provisions authorizing segregation were unconstitutional, local custom would still perpetuate it in most districts of the state that really want itj I assume that would be the case, would it not? MR. RANKIN: We do not assume that once this Court pronounces what the Constitution means in this area that our people are not going to try to abide by it and be in accord with it as rapidly as they can. JUSTICE JACKSON: I do not think a Court can enter a decree on that assumption, particularly in view of the fact that for 75 years the separate but equal doctrine has prevailed in the cases that came before us within the recent past, indicating it still had not been com plied with in many cases. The only people we can reach with the judicial decree are the people who are before us in the case. MR. RANKIN: That is correct. JUSTICE JACKSON: So that if it is not acquiesced in and embraced, we have to proceed school district by school district, is that right? MR. RANKIN: Well, this Court traditionally handles each case as it comes before it. 53U9 U.S. 29**, 301, (1955) 319 JUSTICE JACKSON: Yes. It means that private litiga tion will result in every school district in order to get effective enforcement, and that is why, I suppose, this separate but equal doctrine has never really been enforced, because many a disadvantaged people cannot afford these law suits. But the Judicial remedy means Just that, does it not, lawsuit after lawsuit? MR. RANKIN: Well, it is probably true in every Four teenth Amendment case that comes before the Court, each litigant has to come and say, "My rights have been infringed, and I have to be provided a remedy." (pp. 168-169) Rankin grasped every question and replied in plain, posi tive language. JUSTICE JACKSON: It is all one question: What are the standards? MR. RANKIN: In the first place, I do not think the country would ever be satisfied with anybody but the Supreme Court saying what the Fourteenth Amendment means; and, secondly— JUSTICE JACKSON: We would not be, anyway. MR. RANKIN: No. (Laughter.) Secondly, I think that this Court does not have the duty or the function to try to determine what is a wise educational policy for each one of the various school districts in the country. JUSTICE JACKSON: I am with you there. MR. RANKIN: It has the duty and the obligation to say that when the Constitution says that men shall be equal before the law, and the states shall regard them as equal in all the various things it does for them, that it cannot take one group of people and say, "You shall be separated Just because of your color and from another group," and that is not equality, (pp. 170- 171) Hindsight helps to interpret the analysis of the remainder of Rankin’s argument. The Court did not decide the questions of implementation in its 195** decision. It called for further reargument in the 195** term. Some 320 members of the Court expressed obvious concern over these questions. In the last eight to ten minutes of Rankin's time, Justices Jackson, Frankfurter and Reed pressed the Assistant Attorney General for answers to the problem. The give and take among the three Justices revealed the search for solutions. When the Chief Justice thanked Mr. Rankin after his oral argument was concluded, it seemed reasonable to speculate that the Court had doubts and uncertainties regarding the wording of a decree necessary to implement school desegregation. Such doubts were not necessarily the result of Rankin's lack of concern, candor, or understanding in his presentation. JUSTICE FRANKFURTER: I am not suggesting that I have exhausted the difficulties because we still have them, but I do suggest that the standard is inherent in the very contention made by the Government, namely, that the standard of equlity is not satisfied, indeed is violated by a separation based merely on color. Assum ing that is so, then I do not see how you can escape some of the things which worry my Brother Jackson, and I know raise some questions. JUSTICE JACKSON: They do not worry me; they will be worrying our children. MR. RANKIN: May it please the Court, it is the posi tion of the Government in this case, these cases are peculiarly those that deserve the most wise judgment of the members of this Bench in the interest of this country. JUSTICE REED: Isn't it necessary in every school district at the present time that they have certain facilities, necessary facilities? MR. RANKIN: That is right. JUSTICE REED: They will be admitted, I suppose, tomorrow, if they wanted to take them. 321 MR. RANKIN: We also take the position that It Is reasonable for this Court to remand the matter to the lower court and to take Into consideration, as equity courts have for generations, the problems that have to be dealt with in any inequities that can be presented, . . . We visualize problems, but our courts have many problems, and they deal with these problems, and they weigh the various problems against the rights involved to accomplish the result in the best manner and rapidly as possible. JUSTICE REED: Mention one problem, mention just one. MR. RANKIN: Well, the question is whether or not children should attend tomorrow or the next school term; and I do not see any great problem in that for the Federal District Court. JUSTICE JACKSON: What is the criteria though; what consideration would you say would justify postponing it until next term, if he has a present right to enter? MR. RANKIN: Whether or not It was a deliberate attempt to evade the judgment of this Court of equality or whether or not there are sound reasons that the action should be delayed because of transportation problems, whether or not the building is adequate, all of those matters— (pp. 173-175) Rankin closed his argument, explaining that the Justice Department did not wish to suggest or describe specific recommendations for implimentation of a decree desegregating schools. The Justice Department conceived the position and the duty of the Supreme Court was to establish broad general principles with regard to equality of education— "that there could not be a distinction because of race" (p. 177). 322 Brown v. Board of Education^ At 2:50 P.M. the Chief Justice said: THE CHIEF JUSTICE: Number 1, Oliver Brown, Mrs. Richard Lawton, Mrs. Sadie Emmanuel v. Board of Edu cation of Topeka, et al. THE CLERK: Counsel are present, sir. THE CHIEF JUSTICE: Mr. Carter (p. 2) ARGUMENT ON BEHALF OF APPELLANTS By Robert L. Carter In his opening sentence, Carter gave an effective thumbnail summary of his case. Immediately Justice Frank furter injected a verbal thrust that produced laughter in the Court and thereafter Frankfurter consumed nearly all the time allotted to Carter. JUSTICE FRANKFURTER: Is your case moot, Mr. Carter? MR. CARTER: I hoped that I would get a little further into the argument before that question was asked. (Laughter) We take the position, your Honor, that the case is not moot. The Government, the State, that is, takes the same position. (p. 2) Apparently Justice Frankfurter was aware of the resolution of the School Board of Topeka, Kansas under which they had decided to eliminate segregation in elementary schools. Carter made it clear that Negro children were still ^Transcript of oral argument Brown v. Board of Education. December 8, 1953* Unless otherwise indicated, all quotations in this section are from the Transcript. 323 segregated. Carter also said the case was not moot because the Kansas statute was still existent and had not been declared unconstitutional. Carter stated flatly "our position Is that the case in not a moot case, and we have to address ourselves to the questions which the Court asked" (p. 3). However, Carter was again diverted from his Intended argument on the five questions propounded by the Court. Justice Frankfurter persisted: JUSTICE FRANKFURTER: Is Topeka here apart from— I understand the State takes a different view. Is the immediate respondent— appellee here? MR. CARTER: If your Honor will remember, last year the Topeka School Board did not appear. JUSTICE FRANKFURTER: No. MR. CARTER: This year they did not appear. So far as I know, they have no intention of appearing, if I am right in that, Mr. Wilson. JUSTICE FRANKFURTER: They have every intention of giving you what you want, is that it? MR. CARTER: I beg your pardon? JUSTICE FRANKFURTER: They merely have the intention of giving you what you want, and not contesting your claim? MR. CARTER: That is right. JUSTICE FRANKFURTER: That is what I call a moot case. (Laughter) (pp. 3-1 *) Carter explained that one of the appellants he represented had been admitted to a school; the others were still attending segregated schools. Justice Frankfurter failed to relinquish his line of reasoning. Although Carter 324 tried to shift the dialogue back into questions he felt were pertinent, nevertheless Justice Frankfurter continued trying to establish what the fact situation was in regard to the status of the Kansas case. It was evident that a clear statement of the facts was not merely a part of Carter's argument; it was for Frankfurter, at least, the argument Itself. Openly admiring Carter, Frankfurter was still not satisfied with Carter's answers. JUSTICE FRANKFURTER: Perhaps I ought to change my inquiry. I do not mean to shut off your argument. Having heard you before, it gives me pleasure to hear you again. But as I understand it, then, the position is that the respondent, the appellee, meets your claim, and you do not question the purpose is to meet it, and the question is whether, as a matter of formality, in fact, the concession of your claim would be appropri ately carried out. So I suggest what you ought to say to us is that we ought to enter a decree sending the case back to the District Court to enforce that which the respondent or the appellee concedes. Therefore, it is a question of the terms of the decree, is it not, in your case? (p. 6) Carter agreed with Frankfurter's view. Justice Reed was concerned about another fact situation: "What about the State? As I recall it, the State was admitted as a party" (p. 7). Carter knew the details of his case. MR. CARTER: We went before a statutory court, and we attacked the constitutionality of the statute. The Clerk of the Court advised the Attorney General that a State statute was under attack. The Topeka Board appeared and defended their action and the statute, and the State appeared separately in order to defend the constitutionality of the statute. They are in that position here. They appeared in the 325 original argument, and they reappeared— (pp. 7-8) Justice Frankfurter hastened to add to Carter's explanation; JUSTICE FRANKFURTER: They did not appear; we had to bring them in. We had to ask them whether they would let the thing go by default. They did not appear; they were not so anxious. They did not claim that they had a great right, that they had a right to defend here. MR. CARTER; Well, I think— JUSTICE FRANKFURTER; Perhaps "cajoled" is a better word. MR. CARTER: If you are expressing— if that is the view of the Court, your Honor— JUSTICE FRANKFURTER: Mr. Carter, nobody knows better than you that I can speak only for one poor lone voice. (p. 8) With apparent sincerity and frankness Carter stated simply: "I certainly have no real desire to proceed with an argu ment" (p. 8). Carter said that if all the appellants had been admitted to unsegregated schools the question of mootness would have been clear. He asked for rebuttal time and yielded to the State. The Chief Justice then directed Paul E. Wilson to address himself to the question of whether the case was moot or not. ARGUMENT ON BEHALF OF THE STATE OF KANSAS By Paul E. Wilson Considerable flexibility is necessary for the appellee advocate who must frequently improvise to rebut the issues raised by the appellant and/or the Court. 326 Furthermore, the Court is usually anxious to get the appellees’ reply to previous argument. Wilson, speaking on behalf of the State of Kansas, was well prepared. He knew the facts, his language was clear, his statements precise. MR. WILSON: If it please the Court, it is our position that the case is not moot from our standpoint for several reasons. In the first place, the appellant has pointed out that only one of the group of appellants that counsel represents has been admitted to the inte grated public schools of Topeka. Now, as a matter of policy, and as a matter of policy only, and without reference to this case, the Topeka Board of Education has determined that segrega tion will be abandoned in the elementary schools of Topeka as soon as practicable. That is the language of their resolution. It was our view that the constitutionality of the statute is still under attack. We were permitted to defend the constitutionality of the statutes in the District Court. We were asked to defend it in the Supreme Court a year ago, but we feel that we must, in order to main tain a position consistent with the expressed intent of this Court, answer the brief and the arguments that the appellants have supplied us. (pp* 9-10) Still concerned about the fact situation of the case before the Court, Justice Frankfurter questioned Wilson: JUSTICE FRANKFURTER: Do you think it is an alarming assumption that in 1953 where a State has stopped segregation and in the next year is going to begin segregation in Topeka, Kansas, do you think we ought to do business on that assumption? (p. 13) Wilson may have been concerned about having enough time for argument on the law of his case. He wished to be heard on the questions submitted to counsel by the Court. 327 MR. WILSON: If the Court please, may I distinguish between the State of Kansas and the Board of Education of Topeka, Kansas, which Is a separate municipal corporation. The Board of Education of Topeka, Kansas, has announced its intention to abandon the policy of segregation. I think the Board is acting in complete good faith, and I have no notion that they will reverse that trend. On the other hand, the State of Kansas is here to de fend its statutes, and I emphasize, and the Court emphasized, we came here a year ago, at the express invitation of the Court, and there are other cities that are concerned, and, therefore, the state had hoped to be heard with respect to the questions that the Court submitted to it on June 8. (pp. 13-1*0 Justice Jackson asked if Wilson had anything to add that counsel Davis and Moore had not covered in de fense of their cases. Wilson was exact. "My conclusions, my interpretations, are substantially those that Mr. Davis and Judge Moore have presented to this Court" (p. 1*0. A humorous note was injected when Moore, who was apparently sitting at the counsel table, corrected Wilson and said that that was not Judge Moore but Mr. Moore. Wilson said he was not sure whether it was proper to apologize under the circumstances or not. The transcript indicates laughter. In view of the comments by the Court, Wilson proceeded somewhat summarily to review the facts and present argument in defense of the Kansas statute permit ting segregation. It was Justice Frankfurter who again directed Wilson to the present fact situation. 328 JUSTICE FRANKFURTER: . . . is there any controversy between these appellants and the State of Kansas, any justiciable controversy? MR. WILSON: These appellants allege and contend that a statute enacted by the legislature of Kansas is unconstitutional. JUSTICE FRANKFURTER: Suppose I allege that a statute, an Act of Congress, is unconstitutional; and I have no secular damage of mine that is affected. I think such a profound Act of Congress, passed in this heedless way we have been told about, is unconstitutional. Can I go to court? MR. WILSON: No, obviously not. JUSTICE FRANKFURTER: Obviously not. MR. WILSON: However, when you consider the peculiar circumstances under which the State of Kansas got into this case— JUSTICE FRANKFURTER: Litigants sometimes get in, and then find themselves out. (Laughter) (p. 17) It seemed to Wilson, at that moment, that the Court was in no mood to hear further argument. MR. WILSON: Unless the Court desires, I do not wish to proceed with argument; that is, I have no intention to burden the already over-burdened Court. JUSTICE FRANKFURTER: That is not my question. There is no suggestion about your not arguing the appro priateness; it is Just a question of whether it is one of those cases where you have to say there is no con troversy in the judicial sense before the Court. MR. WILSON: Well, to repeat my earlier statement, I think there still is a controversy because under the authority that the Board of Education presumes to exercise, it does maintain segregation in 16 of its 18 geographic areas, and it requires the children living in those areas to go to segregated schools, (pp. 17-18) Chief Justice Warren (who had not heard the 1952 arguments) interrupted and in rather terse language made it 329 clear that he wished to hear Wilson’s argument. THE CHIEF JUSTICE: I consider that a problem; I would like to hear some light on it anyway. I think when both parties to the action feel that there is a controversy, and invited the Attorney General to be here and answer these questions, I, for one, would like to hear the argument. (p. 18) Wilson responded by presenting a detailed and precisely developed statement in answer to the Court’s questions with regard to the history of the Fourteenth Amendment and judi cial power. From the moment the Chief Justice declared that he wished to hear him, Wilson was not interrupted once during the remainder of his presentation. When Wilson finished, the Chief Justice asked Carter if he wished to make rebuttal. Carter said "with respect to the arguments that have been urged by the Attorney General, since I do not feel he has opened any new avenues, it seems to me that in order to conserve the Court's time I will not speak" (p. 29). Bolling v. Sharpe7 THE CHIEF JUSTICE: Number 8, Spottswood Thomas Bolling, et al., versus C. Melvin Sharpe, et al. THE CLERK: Counsel are present. (p. 2) ^Transcript of Oral Argument Bolling v. Sharpe December 8, 1953. Unless otherwise indicated, all quota tions in this section are from the Transcript. 330 ARGUMENT ON BEHALF OF PETITIONERS By George E. C. Hayes Hayes* opening remarks conformed to the most stringent rules of oral advocacy applicable to any effec tive opening. In six sentences he presented the bare essentials regarding the Court's jurisdiction, an abridged history of the case, and the petitioners* contention regarding the principal issue, namely, the constitutionality of segregation on the basis of race. MR. HAYES: May it please the Court, the case of Bolling v. Sharpe comes before this Court by reason of certiorari granted to the United States Court of Appeals for the District of Columbia, and the problems that we face are problems which are different from those which the Court has been hearing for the past two days; different, because of the fact of our Federal relationships; different because of the fact that there are no state-federal conflicts; different because of the fact that in our case there is no question of equality of facilities. It is probably proper that I should begin by saying something by way of background in order to acquaint the Court again of the problems, as we see it, that we face in this jurisdiction. The minor petitioners in this case presented themselves to the authorities in the Sousa Junior High School, seeking admittance as students. They were denied admittance, and expressly denied it for no other reason than because of their race and color. They followed that up by going through each of the echelons with respect to the administrative authorities in the District of Columbia, and at each of the levels they were denied admission for no reason other than the question of their race or color. This suit was then filed asking by way of injunction that they be admitted to these schools and that the Board of Education should not use as a means of 331 excluding them the race and the color of these petitioners. (pp. 2-3) Hayes explained that he and his colleague, Nabrit, planned to divide the hour allowed them. Hayes would address himself to the history of the statutes in the District of Columbia and Nabrit to the "things which seem pertinent . . . by way of the inquiries made by the Court" (p. 3). Hayes established promptly that the foundation for his argument was "the Fifth Amendment because of the fact that that applies to our jurisdiction" (p. 4). Turn ing to the statutes, Hayes declared: We find ourselves in the company of the distinguished Attorney General of the United States and his associ ates when we take the position that, as far as the statutes are concerned, as we conceive it, they are permissive and voluntary; they are not compulsory; and we believe that this Court can find, by looking at these statutes, or must find, either one of two things: either that they are permissive and voluntary, and that by so much, if they find that the Board of Education has construed them as being compulsory and has used them as a means of segregating Negroes, that then by its mandate this Court will say that the Board of Education is wrong in any such interpretation; or, if on the other hand, it were to be determined that they are, as a matter of fact compulsory, that then this Court must, of necessity, say that they are unconstitu tional if, as a matter of fact, they use as their yard stick nothing other than race or color, (pp. 4-5) Justice Reed wanted to clarify the issue before the Court: "Whether they are permissive or mandatory, would they not be unconstitutional in either case" (p. 5)? MR. HAYES: Yes, we think it is unconstitutional in both instances, unconstitutional whether permissive and voluntary, unconstitutional whether by actual compul sion, and we think it is the present time when this Court should so determine, (p. 5) 332 Hayes then presented his analysis of the historical back ground of the statutes passed by Congress in the District of Columbia. He used the evidence in his attempt to per suade the Court that . . . the fact that Congress, having found a certain situation and having acted upon it, and having supple- mentarily issued or allowed appropriations, that that inaction on the part of Congress or that acceptance of a situation on the part of Congress does not still avoid the fact of the unconstitutionality which we ask your Honors to determine, (p. 6) After exploring the intent of the statutes, Hayes examined several cases which had been adjudicated in the United u . States Court of Appeals for the District of Columbia in o 1950, including Carr v. Corning and Browne v. Magdeburger.0 Both cases involved the question of violation of constitu tional rights on the basis of physical inequality. Carr v. Corning raised the additional proposition as to whether or not segregation per se was unconstitutional. MR. HAYES: That is the position which we are taking with respect to these [school segregation] cases, that segregation per se is unconstitutional, and that with out regard to physical facilities, without regard to the question of curriculum, and that if, as a matter of fact, there is a designation that one must go to a particular school for no other reason than because of race or color, that that is a violation of the Constitu tional right, and as this Court has said, wherever the issue is raised with respect to color, then it is upon the Government to show that the reason for it— that ®Carr v. Corning. 86 App. D.C. 173, 182 P. (2d) 14 (.1950); Browne v. Magdeburger. 86 Ad d. D.C. 173. 182 F. (2d) 14 (1950). 333 there is a reason that is a justifiable reason. . . . We take the position that as far as the Carr v. Corning case was concerned, it simply was decided incorrectly; that our Court of Appeals was simply wrong in its decision.9 (p. 12) Hayes knew his opponent had cited the cases supporting the constitutionality of segregation in his brief. Hayes brought the cases into focus in his argument because he realized his opponent would certainly use them in his oral argument. By anticipating his opponent's argument, he met it squarely and without delay. He concluded his presenta tion repeating the essence of what he said when he opened. So we say to this Court that under whatever angle the situation is looked at in the District of Columbia, from whatever aspect we take it, that this Court, as we conceive it, cannot say to a waiting world that we sanction segregation in the District of Columbia for no other reason than because of the fact that the skin of the person is dark. That, this Court has said, is suspect; that, you have said, is void; that, you have said, should not be sanctioned; that, we believe, must be your decision, (p. 14) ARGUMENT ON BEHALF OF PETITIONERS By James M. Nabrit, Jr. In language more eloquent than Hayes, Nabrit's opening statement was a flowing account of his reactions to 9ln their statement of the case in the 1952 brief filed in the United States Supreme Court petitioners (Hayes, et al.) said that their complaint in the United States District Court for the District of Columbia was dismissed in 1951; that the District Judge stated that he was bound by the holding of the United States Court of Appeals for the District of Columbia Circuit in Carr v. Corning and Brown v. Magdeburger. Respondents (Korman, et al.)' had cited the cases in their 1952 brief as support for their case. 334 the two days of oral argument and the historical documenta tion presented. MR. NABRIT: If the Court please, we have for the past two days been engaged continuously in a concentrated and thorough attempt to recapture the spirit and mood of a significant period in the history of our country. At best, I fear that we shall capture only the overtones of these historical settings, the outlines of the broad sweep of events, but I hope at least we shall have grasped the general delineation of the primary purpose and objectives. Men do not always set forth explicitly the motives which cause them to act as they do nor do Congressmen always explain in detail each of the objectives which they seek in proposed legislation or the reasons why they support or fail to support a particular bill. (pp. 14-16) Nabrit chose to discuss two facts which related to the primary issue in the District of Columbia case. First, none of this exhaustive discussion of history, however, illuminating it may be, can conceal the blunt fact that under a system of legalized segregation millions of American Negroes live in this land of opportunity, equality and democracy as second class citizens, suffering all types of civil disabilities imposed upon them in every aspect of their daily lives solely because of their race and color. . . . In the second place,-in this posture of the cases, we should single out the District of Columbia for different treatment, not alone because the District of Columbia brings this case under the Fifth Amendment, but because this is the Federal Government dealing with Federal citizens. Here is no question of the delicate relationship of State and Federal Government. Here we are dealing with the capital of the free world. (p. 16) Using words charged with emotional appeal, Nabrit extended the implications of the District of Columbia case beyond its seemingly limited scope: 335 MR. NABRIT: . . . we submit to the Court that the question before the Court is not merely the technical question of the construction of school statutes or the propriety or reasonableness of the action of the re spondents complained of here, but it is also the basic inquiry as to whether under our Constitution the Federal Government is authorized to classify Negroes in the District of Columbia as untouchables for the purpose of educating them for living in a democracy. We say to the Court that this is not in line either with the principles of the Constitution of the United States, our ideals of democracy, nor with the decisions of this Court, nor with the Executive Orders of the President of the United States, nor with the orders of the Commissioners of the District of Columbia; and that so far as we have heen able to find, with the exception of these school statutes, the training school in the District of Columbia and one or two other in stances of that ilk, that there is in the District of Columbia no authority, no official, no body of respon sible persons who takes the position that racial dis tinction should be imposed upon Negroes because of color, except the respondents complained of here, . . . (.pp. 16-17) A dialogue then ensued between Nabrit and Justice Frank furter which ohviously amused the Court. The question and answer session involved the status of the School Board in the District of Columbia and the persons or institutions to whom that Board was responsible. JUSTICE FRANKFURTER: Does the District Court define their powers or does the Code of the District of Columbia define their powers? MR. NABRIT: Their Code— you know under our set up in that area we have some administrative functions in the courts. JUSTICE FRANKFURTER: Does the Code say anything about this problem, the segregation of the grade schools? MR. NABRIT: No, sir. JUSTICE FRANKFURTER: This Is just a pronouncement by the Board? MR. NABRIT: That Is right. JUSTICE FRANKFURTER: And the Board has pronounced— MR. NABRIT: The Board has pronounced It, although I noticed— and this is something that the Court may reprimand me for, but I noted— in the brief and in the papers that counsel for the respondent is not certain as to what the positions of all his respondents are on this matter (laughter). They are sued individually, you know. JUSTICE FRANKFURTER: All you have to do is to read his brief; I do not know for whom he speaks. MR. NABRIT: I neither, Mr. Justice Frankfurter. JUSTICE FRANKFURTER: I take it he will tell us before we get through (laughter). MR. NABRIT: Yes, I hope so. (pp. 19-20) Nabrit tried to convince the Court that a decision in his clients' favor could be justified on several grounds. He said the facts derived from the history of the statutes in the District of Columbia do not authorize compulsory segregation and that the Court should construe the statutes as voluntary. Nabrit demonstrated his line of reasoning in a clear and precise manner. He said if the Court takes that view, then it can dispose of the case by simply saying that the statutes do not authorize compulsory segregation; and that therefore the action complained of in the District of Columbia case is unlawful and violates the due process clause of the Fifth Amendment. "We don't have to go into any Constitutional question. We Just find they don't have the authority" (p. 22). Nabrit argued that if the statutes compel segregation they would violate our Federal policy, 337 violate the due process clause of the Fifth Amendment, (the liberty aspect of it) and violate Section 41 and 43 of Title 8 of the Civil Rights Act. Justice Frankfurter, seeking further clarification, asked Nabrit what Justifi cation the respondents give for keeping the children out of school. Nabrit responded that it was solely on the ground of race and color. In the following exchange, Justice Frankfurter's queries again evince a bit of humor, and demonstrate further that Nabrit could use the byplay to his advantage. JUSTICE FRANKFURTER: Suppose we say the statutes do not compel them and then they say it is a matter of discretion, "we ourselves think it is a matter of discretion?" MR. NABRIT: Well, all we would do— JUSTICE FRANKFURTER: Start a new suit? MR. NABRIT: I was Just going to tell you, we would file suit that day. (Laughter) JUSTICE FRANKFURTER: I am merely suggesting it is multiplying litigation instead of subtracting it. . . . MR. NABRIT: One other thing the Court may do, and I like the Schneiderman case because the Court did some thing there that I think we don't use enough. [Read into these statutes an intent on the part of Congress not to segregate Negroes by compulsion.] JUSTICE FRANKFURTER: You offer opinions that you like, is that it? MR. NABRIT: That's right. (pp. 23-24) Nabrit said he wanted to save ten minutes for rebuttal. He closed his argument by urging the Court "to hold that the respondents are without power in the District of 338 Columbia to discriminate or segregate the Negro pupils solely on the basis of race and color" (p. 25). ARGUMENT ON BEHALF OF RESPONDENTS By Milton D. Korman MR. KORMAN: Mr. Chief Justice, may it please the Court, at the outset I should like to state the posi tion of the corporation counsel of the District of Columbia in this matter. I stand before the Court to defend acts of Congress which we believe to be lawful and constitutional. I stand before the court to assert that this is not the forum wherein laws should be attacked because change is wanted. I stand before the Court . . . to defend legislation which we think is valid legislation and Constitutional legislation. For 75 or 80 years no one had attempted to enforce those laws. They were believed to be dead. They were called to our attention; we looked into the history of them; we studied the statutes and acts of legislatures thereafter. We studied the Constitution of the United States and the decisions of this Court, and we came to the conclusion that those statutes were valid, even though lying dormant for all those years, and that they were Constitutional, and we came here to defend them. (,p. 26) No other counsel in the school cases displayed the old style pedantic and declamatory mode of expression which Korman used in his opening. His statements abounded with alliteration. With his usual disposition for getting at certain information, Justice Frankfurter interrupted Korman. JUSTICE FRANKFURTER: When you say "we," am I to infer that that means the Board of Education of the District of Columbia? MR. KORMAN: You are, sir. I speak for the Board of Education of the District of Columbia, although I admit very frankly in our brief that I have not talked to the individual members so far as their position on the sociological issue is concerned. 339 JUSTICE FRANKFURTER: I do not know what that means. MR. KORMAN: It means this: (Laughter) From public statements that I have seen in the press, it appears that at least some members of the Board of Education are strongly convinced at this time that the time has come for a change in the system; that the time has come to integrate the schools of the District. (p. 27) For about six minutes Justices Frankfurter, Black, and Jackson closely examined Korman regarding his right to represent the Board of Education of the District of Colum bia and to maintain the position that he was pleading to the Court. With the issue still undetermined, the Court adjourned at 4:30 P.M. When Korman resumed oral argument at 12:07 P.M. the next day, he immediately presented documentation to support his right to appear as counsel for respondents. He expressed himself in unequivocal terms. MR. KORMAN: They [members of the Board of Education of the District of Columbia] say that I have the right to stand before you to represent them in this contro versy; that they want decided the question of the constitutionality and the validity of the Acts of Congress under which the dual school system in the District of Columbia is being maintained. But I may say to you further, sir, that our posi tion as legal advisors to the Board is that they have not the right to make any change in the system, be cause we believe firmly, and I hope to establish to you in argument today, that the acts of Congress require the maintenance of separate schools for white and colored children in the District of Columbia, and that those acts of Congress are constitutional. It does not lie in my mouth to say to members of the Board of Education that they have a right to fly in the face of such decisions [Plessy v. Ferguson. Carry. Corning. Browne. v. Madgeburger] and I say to 3^0 you that they could not make any change as we under stand the law, and I think as they understand the law, however much any of them might want the law to be otherwise. (pp. 38-40) Apparently feeling he had satisfied the Court's inquiries as to his own position and the principal constitutional issue, Korman proceeded to discuss the kind of decree which might be entered in the event the Court ordered desegregation. Justice Douglas interrupted: JUSTICE DOUGLAS: Are you going to reach the legal questions, whether the District of Columbia statutes— MR. KORMAN: I expect to cover that further. JUSTICE DOUGLAS: — are mandatory or merely permissive? MR. KORMAN: Yes, I expect to reach that. (p. 4l) No assumptions can be made as to why Korman postponed his answer. He simply pressed his argument that the Court should not enter any detailed decree. Contrary to gen erally accepted procedure In appellate advocacy, Korman explained his position by reading from his brief, as he had done in the 1952 arguments. When a member of the Court asks a question, he ordinarily expects an Immediate reply. Unquestionably Korman risked the displeasure of Justice Douglas by his refusal to answer immediately. The printed transcript reveals certain habits In Korman's thought and speech. For example, no other advocate in the school cases used the first person pronoun as repetitively as Korman. No other advocate quoted as frequently nor at such length from documents, testimony, and opinions. 341 There is reasonable Justification to criticize Korman's Judgment regarding the selection of cases used to support his contention that acts of Congress (the statutes in question) required the maintenance of separate schools in the District of Columbia. Korman had difficulty distin guishing the cases he cited, thereby losing time and failing to support his main argument. Though he tried to maneuver away from Justice Frankfurter's unceasing ques tioning, the Justice persevered. It is dubious whether Korman enhanced his cause or his rapport with the Court in the following exchange: JUSTICE FRANKFURTER: Did Judge Prettyman in the Carr case explicitly deal with this problem? He sustained the segregation and he sustained the constitutionality but was it an issue in that case, whether segregation was to be sustained, because that was the system which the Board enforced, or that segregation was sustained because the statutes compelled the Court to enforce them? MR. KORMAN: The question was raised in that case, and Judge Prettyman— JUSTICE FRANKFURTER: Did he discuss that problem, Mr. Korman? That is what I want to know. MR. KORMAN: He reviewed all of the statutes, and then he said— JUSTICE FRANKFURTER: And said segregation Is ConstitU' tional? MR. KORMAN: No, he said this. It is set forth more fully in the brief we filed last year. I have this quote in my notes. After citing the various statutes, he said: "These various enactments by Congress cannot be read with any meaning except that the schools for white and colored children were then Intended to be separate." That was his conclusion, and I think I can 342 demonstrate that to you by reviewing the statutes, which I should like to do. JUSTICE FRANKFURTER: I am not questioning that, but as I remember his opinion and as I remember Judge Edgerton's dissent, they did not clinch, if I may use a vulgarism, on that question. MR. KORMAN: I am quite in agreement with you that Judge Prettyman and Judge Edgerton did not clinch on that question. JUSTICE FRANKFURTER: That is all I'm trying to find out, the scope of the decision on that question. MR. KORMAN: But Judge Park clinched pretty well on that. [No "laughter" note is observed in the tran script. Korman should have hesitated to continue the use of the word "clinch," described by Justice Frank furter as a "vulgarism," since he evoked no humorous reaction after he first repeated it.] JUSTICE FRANKFURTER: In that case? MR. KORMAN: Yes. JUSTICE FRANKFURTER: Was there an opinion by Judge Park? MR. KORMAN: No. He joined Judge Prettyman in the majority. JUSTICE FRANKFURTER: How can a concurring Judge go beyond what he concurs with, unless he says so. I don't understand that. MR. KORMAN: Well, my understanding— JUSTICE FRANKFURTER: He may have done so from the bench, but so far as my reading goes, which is all I have in these matters, I did not see that that issue was in contest between the Judge who wrote the majority opinion and the judge who wrote the dissent. MR. KORMAN: I don't think it was in contest between those two, no. JUSTICE FRANKFURTER: All right, that is all there is in the books. I have no private edition of their opinion. 343 MR. KORMAN: Well, sir, Judge Park Joined with Judge Prettyman— JUSTICE FRANKFURTER: But he could not join more than what Judge Prettyman wrote. MR. KORMAN: No, but he joined that much, and Judge Prettyman wrote— JUSTICE FRANKFURTER: So I read Judge Prettyman*s opinion— MR. KORMAN: And I think It bears out my opinion. JUSTICE FRANKFURTER: Very well. (pp. 48-51) For the remainder of his presentation Korman cited numerous acts to support his major contention that Congress intended segregated schools in the District of Columbia. He read portions from those acts, including dates, places, names, and other details. REBUTTAL ARGUMENT ON BEHALF OF PETITIONERS By James N. Nabrlt, Jr. Nabrit prepared an effective rebuttal. It was well organized and concentrated on several significant points presented by his opponent. First, Nabrit chose to rebut Korman's proposal that if constitutionality be decreed, then the case should be remanded to the District Court of the District of Columbia for implementation. Under American Jurisprudence, however, we would suggest to the Court that in considering due process, we have not let the incorruptibility or noncorruptibility of the persons involved permit us to entrust to them both the appointive and reappointive power of the boards, and then the judicial power to distinguish between litigants who are contesting the rights of the board and the board on the basis that their incorruptibility satisfies the requirements of due process, (p. 680) 344 Second, Nabrit rebutted Korman*s proposition that the statutes passed by Congress for the District of Columbia should be interpreted to mean that segregation in public schools is thereby sanctioned. He reminded the Court that the attitude of Congress cannot be gathered by "reading certain phrases in these statutes" (p. 70). Since Korman had spent so much time reading from statutes, Nabrit decided to concentrate on that subject. MR. NABRIT: . . . We were on the verge of the Civil War in 1862 [sic]. We were in the midst of the Civil War thereafter until 1864. . . . During that period public education itself was in an elementary stage of development. The public educa tion for anybody in the District of Columbia, even the whites, was in such a fragmentary and rudimentary situation as not to be dignified by the name of public educational system. It is inconceivable that in this type of fragmen tary educational system the Congress there intended to manifest an intention to impose a racial distinc tion. There is no basis for such a supposition. (pp. 70-71) He further contended that if the Court failed to agree that the statutes showed no intent to segregate the schools, the Court could read into the statutes an intent which would conform with previous decisions of the Court and with government policy. Nabrit rebutted Korman's interpretation of the Carr v. Corning case. He said in that case the Court never reached the question which the present case asks the Court to decide. He used his remain ing minutes to argue the issue of adjustment. In the 345 event of a favorable decision to his cause, he advocated that the relief to be granted in the District of Columbia should not be gradual. In our Judgment, we have a time within which we think the Court should require the respondents to grant the relief requested, and that is that the Court enter a decree that these respondents be restrained from oper ating and managing the schools in the District of Columbia on the basis of racial distinctions alone, by the beginning of the next school term succeeding the issuance of the decree. (p. 76) Nabrit's closing statement to the Court reflects the temper of the advocate closely identified with his cause. Nabrit had demonstrated to the Court in explicit terms what he believed to be the correctness and soundness of his case. His closing words combined strength and dignity and avoided the formal, sometimes over-used request that "judgment must be . . . and so forth." I would like to say as one final sentence, if I may, that America is a great country in which we can come before the Court and express to the Court the great concern which we have, where our great Government is dealing with us, and we are not in the position that the animals were in George Orwell's satricial novel "Animal Farm" where after the revolution the dictator ship was set up and the signs were set up there that all animals were equal, was changed to read "but some are more equal than others." Our Constitution has no provision across it that all men are equal but that white men are more equal than others. Under this statute and under this country, under this Constitution, and under the protection of this Court, we helieve that we, too, are equal. (pp. 79-80) Gebhart v. Belton10 3M6 ARGUMENT ON BEHALF OF PETITIONERS by H. Albert Young As in the 1952 arguments, the Gebhart re-argument was the last case to be heard. Its position on the docket presented respective counsel with a most difficult chal lenge. It is not easy to present novel or refreshingly new arguments on substantially similar issues which have been thoroughly discussed, dissected, and argued by several preceding counsel. After describing the petitioners' legal position, namely, their objection to the type of relief which was granted by the Delaware Supreme Court (immediate desegrega tion of the Delaware School or proof of inequality), Young argued that since the respondents (Negro children) "did not file a cross-petition nor did they seek any review of the decision that segregation in and of itself is not contrary to the Fourteenth Amendment . . ." (p. *0, the issue of segregation per se was not before the Court. Thus, Young raised a highly technical legal problem which caused the respondents considerable difficulty during their arguments. 10Transcript of Oral Argument, Gebhart v. Belton, December 9, 1953. Unless otherwise indicated, all quota- tions in this section are from the Transcript. 347 Young’s first principal contention was an apologia for Delaware's position during the Civil War and its attitude toward Negroes. He denied that Delaware refused to ratify the Fourteenth Amendment because of their belief that it would require the State to admit Negroes into its public schools on a mixed basis; inferentially, he denied that school segregation in Delaware is based upon white supremacy; proudly stated that Delaware did not secede from the Union nor did it join the Confederacy; and, stated that there was "a long Delaware tradition of loyalty to the Constitution, and pride in having been the first State to ratify it" (p. 5). He did admit, however, that attempts to obtain from the legislature a resolution of adherence to the Union failed; that there were many manifestations of Southern sympathy throughout the State; that slavery was a part of the social and economic life of the citizens as it was a part of the lives of the citizens of Southern states. The dominant mood in Delaware, both during and after the Civil War, was opposed to abolitionism and equality for the Negroes, and our own state legislature, in a Joint resolution of the House and Senate opposing the Freedmen's Bureau Bill, the Civil Rights Bill, the Negro Sufferage, we witnessed the expression of the feeling that equality cannot be sanctioned under the laws of God or nature, and Senator Saulsbury at that time stated that he was proud that his state was the last to abolish slavery. The Thirteenth Amendment was unqualifiedly rejected by the legislature in 1865. The legislature expressed its unqualified disapproval of the Fourteenth and 348 Fifteenth Amendments, and refused to adopt them in 1867 and 1869, respectively, (pp. 6-7) After the passage of the Fifteenth Amendment, poll tax laws in Delaware, designed particularly to disfran chise the Negroes were adopted with great effect. Young declared that since the Delaware legislature ratified the Thirteenth, Fourteenth, and Fifteenth Amendments on Feb ruary 12, 1901 some thirty years after they had been sub mitted for ratification, conclusively nullified the argument of the respondents to the effect that school seg regation in Delaware is based on the doctrine of white superiority. How or why Mr. Young was able to reach this conclusion is difficult to understand. The mere statement that something is so does not make it so. It is purely and simply a nonsequitur to argue that mere ratification of the aforementioned amendments destroyed white racism in Delaware. Young argued: The constitutional provision for a separation of the races in the public schools in Delaware was not based upon any declaration of natural or God-made inequality or inferiority of the Negro. It was adopted in the light of the history and tradition of the people of the state of Delaware as the wisest and most work able and most acceptable method of educating the youth in that state, both white and colored. (pp. 9-10) Finally, after several minutes of introduction, including his "way of life in Delaware" argument, Young proceeded to answer the questions posed by the Court in the reargument. Substantially, his description of the Fourteenth Amendment and the debates, which were the 3^9 foundation and milieu in which that Amendment was passed, was by and large repetitive of the arguments made by other counsel who preceded him. His conclusion regarding school segregation and the Fourteenth Amendment was: The silence in the Senate on the school question leads only to the conclusion that it was the understanding of the Senate that the measures would not affect segregated education. The Senators and representatives were not oblivious to the effect of these measures on the school systems in their own states, nor would they have failed to discuss the consequences if they helieved that segregation would be outlawed. (p. 17) As was maintained by all of the counsel who opposed the desegregation of our public schools, Young contended that Section 5 of the Fourteenth Amendment did not give to Congress the power to broaden the Amendment, "but merely provides for more effective remedies than those which might be obtained through the normal judicial process." It cannot logically be argued that although the amend ment was properly understood to be broad enough to eliminate segregation in public schools at the time it was enacted, that it was, nevertheless, understood that Congress might In the future make segregation illegal. (pp. 19-20) He argued that the states maintained their unalterable position that the question involved, namely, school deseg regation, was a legislative and not a judicial problem. Therefore, the conclusion should have been obvious: the United States Supreme Court should not and did not have the power to deal with the issue of desegregating our public schools. Additionally, Young, and others in a similar legal position, steadfastly contended that the 350 Issue of segregation In our public schools was not a federal question. Rather, the right to decide this ques tion came under the Jurisdiction of the states, and speci fically under their police power and under those powers reserved to the states which are not expressly delegated to the Federal Government. Young’s long andsomewhat repetitious restatement of the history of the Fourteenth Amendment and its implica tions, was interrupted by Chief Justice Warren who wanted to know what the situation was in Delaware where several schools had desegregated and admitted Negro children in the white schools. Young was not certain that the Negro children who had been admitted to the white schools were happy. MR. YOUNG: Well, I do not know to what extent he is happy, but I might say, if I am permitted to say it outside the record, that in a recent survey there was an indication that there was not too much happiness in the district, in the school, particularly where the six out of the forty-six are attending, and that situation is not solved in that particular district in New Castle County. (p. 22) His summary was short: MR. YOUNG: The arguments, I respectfully submit, such as I have heard in this courtroom for three days by our adversaries, have great emotional appeal, but they belong in an entirely different forum and in a differ ent setting. Any change in state policy is for the legislature. The Fourteenth Amendment is a pact between the Federal Government and the individual states. The intention of the parties was clear at the time it was adopted and ratified. In order to make that 351 provision In the Constitution cover the question of public school segregation, it must be done within the framework of the Constitution, for as between providing for Integrated or mixed schools in those states, where it Is deemed best to maintain separate but equal schools, and preserving the meaning and intent of the provision of the Fourteenth Amendment, and the sanctity of the pact between the Federal Government and the states, it is more important that this problem, however worthy, be dealt with within the meaning of our Consti tution. (pp. 23-24) ARGUMENT ON BEHALF OF RESPONDENTS By Jack Greenberg By his first words, Greenberg sought to place the onus of blameworthy conduct on his adversary and to enlarge the scope of the relief sought by the respondents [the Negro children] in this appeal: MR. GREENBERG: In this case, as the Attorney General of Delaware has indicated, plaintiffs prevailed in the courts below. The plaintiffs and members of the class, are now in schools to which they sought admission, but the Attorney General is trying to get them out, and we appear here in an effort to keep them in the schools permanently. As respondents here, we urge that the decision of the court below did not give respondents all that the Con stitution guaranteed. Therefore, in this Court we urge that the decision below should be affirmed on grounds other than those given by the court below, and that segregation in elementary and high schools in the state of Delaware should be declared unconstitutional. (p. 25) After this brief and pointed introduction, Green berg, perhaps inadvertently, opened the door to a rather harsh and difficult legal barrage from the Court. Dela ware's Attorney General had argued that the issue of segregation per se was not before the Court since 352 respondents failed to properly raise the question. Although a technical legal argument, it can be very important since appellate courts sometimes feel themselves bound by such technicalities. Greenberg argued that since the list of questions submitted by the Court to the other states was also presented in the Delaware case, "we inferred that this Court believed that the constitutional question may be reached in this case" (p. 26). This Court was not in the least impressed with the argument. JUSTICE FRANKFURTER: I do not quite understand the general invitation to counsel to submit arguments on a certain point changes the relevant issues within a controversy; I do not quite understand that. MR. GREENBERG: I do not believe it changes the rele vant Issues, but we thought, perhaps, the Court was in terested in the question of the constitutionality of segregation in the Delaware case. JUSTICE FRANKFURTER: As with the Attorney General of Delaware, I am glad to get his observations; and I am glad to get yours, but I do not see that something which is not in issue before we ask specific questions in a group of cases, becomes the issue because we had asked them. MR. GREENBERG: We submit that although the decision below may be supported on an Independent state ground, that in reality, equal protection of the laws will not be given to the respondents unless the constitutional question is reached because, in truth and in fact, they are attending the schools in which they now are, so to speak, under a cloud. They are not like the rest of the students in the school, they are under— JUSTICE FRANKFURTER: I think you should have cross appealed. JUSTICE JACKSON: You have not cross-appealed. * 353 JUSTICE FRANKFURTER: I understand you can sustain a decision below on any ground, but I do not understand that you can object to a decision below on a ground that you have not appealed from. MR. GREENBERG: Well, we did not cross-appeal, Mr. Justice Frankfurter, because we believed that we could urge other grounds for the affirmance of-the Judgment below. JUSTICE FRANKFURTER: You can urge any ground you please that will Justify the decree below; but you can not go outside the decree below. MR. GREENBERG: Well, it is our understanding— JUSTICE FRANKFURTER: I am glad to get your observations but I might suggest I do not think the nature of the issues has been changed. JUSTICE JACKSON: I think the question was addressed in this case along with all the others, so if there were any variations they could be called to your attention. I do not think that we— speaking for myself— took into account the fact or expected in this case to deal with the problem of the decree and the relief or questions addressed to those things, because we cannot direct a state court as to what decree it shall enter. All we can say is, "you shall not go beyond a certain point," which we say is a constitutional limit. Here affir mance is as far as we can go. We could not order them to shape their decree. MR. GREENBERG: It is our position, Mr. Justice Jackson, that the decree below does not give equal protection of the laws. JUSTICE JACKSON: You did not appeal. MR. GREENBERG: No,we did not. (pp. 26-28) The reader's reaction to the transcript is that Greenberg was relieved that a luncheon recess was called at that point. Greenberg, a highly regarded and experienced attorney, may have committed a tactical error by his approach to the argument of the unconstitutionality of the Delaware statutes. If respondents had inadvertently failed to cross-appeal on the issue when they should have done so, then they should have candidly admitted this fact to the Court. Greenberg could have asked permission to argue the matter solely from the point of view of further enlighten ing the Court on the constitutional issue. The Court would then either have allowed this tack or would have denied it. Or, if on the other hand there was legal authority to argue the constitutional issue regardless of whether or not it was raised below, Greenberg should have stated this au thority and informed the Court why he should be permitted to argue the issue of constitutionality. Instead, he chose to introduce his argument by way of the "back door" and met a chilly reception. A constitutional issue ordi narily must be raised below and it must be raised clearly and concisely. Generally, it cannot be raised for the first time in the upper court. Certainly it cannot be done on such vagaries used by Greenberg to justify his argument of the constitutional issue. The Court reconvened at 2:30 P.M. Marshall took over for Greenberg. ARGUMENT ON BEHALF OF RESPONDENTS By Thurgood Marshall In contrast to and possibly benefitting from Greenberg's experience, Marshall informed the Court that 355 respondents did not file cross-petitions because of certain legal authorities, . . . We gathered from those cases that in the situa tion such as this where we were not opposed to the decision of the lower court and merely wanted to urge other grounds for decision in the case, that we should proceed with the case and merely urge in argument the other point, specifically the point as to the validity of the segregate school statutes. We are afraid that in that particular posture of the case, if the Court should rule that we should have cross-applied, it could be interpreted that we have waived the other part of the case, and I merely wanted to briefly state our position on the main part, and that is that our primary responsibility here is to urge the Court not to reverse the judgment of the Supreme Court of Delaware, and not to take the position urged by the Attorney General to reverse and send the matter back. (pp. 29-30) Marshall’s frank approach to the problem raised no questions from the Court. He made a hasty retreat from Greenberg’s position and inferentially prayed the Court to hear him on the segregation issue. His argument in rebuttal was short. He candidly stated that argument . . . in the other cases has been full, and I do not know anything to add to our other argument, and I do not see anything that has been added by Mr. Young's argument, which should require us to meet it, except the peculiar situation in Delaware. He thinks it is peculiar, we think it is peculiar. We have both d#alt with it in great detail in our briefs, and I think that that is as far as I would like to go on that. The real question involved is as to whether or not the states involved as of now, today, do or do not have the power to use race and race alone for the basis of segregation, and that applies, our theory, that the states have been effectively deprived of that power hold as true— Mr. Young emphasized this— in Delaware, which is just beside Pennsylvania. 356 It applies as well there as It applies In South Carolina and Virginia, and therefore, unless there are questions, we submit this case and urge the Court to affirm the judgment of the Supreme Court of Delaware, (pp. 32-33) Whereupon, at 2:40 o'clock p.m., on December 9th, 1953, rearguments In the School Segregation Cases were concluded. CHAPTER VII FINDINGS, INTERPRETATIONS, AND CONCLUSIONS As was discussed in Chapter I, the methodology used in this study was a combination of the descriptive and the analytical. In Chapters V and VI, the oral arguments were described in detail, and analytical comments were made regarding specific details at the time of their occurrence. The present chapter presents a description and analysis of all of the oral arguments when viewed as an interrelated series or whole. These research methods do not always lend themselves to sharp distinctions. In some instances one method may overlap and become an integral part of the other. As used here, however, these two methods, description and analysis, serve as a framework within which to observe and draw principles from the total data presented in this study. Chronology of the School Segregation Cases Description The five cases argued before the Supreme Court in 1952 and 1953 are usually referred to collectively as the School Segregation Cases or Brown v. Board of Education. 357 The School Segregation Cases of 1952 were heard in the following order: 1. Brown v. Board of Education (State of Kansas) December 9, 1:35 P.M. -3:15 P.M. (Luncheon recess was taken but the specific time was not indicated.) 2. Briggs v. Elliott (State of South Carolina) December 9, 3:15 P.M. -4:30 P.M. December 10, 12:10 P.M. - 1:15 P.M. 3. Davis v. County School Board of Prince Edward County, Virginia (State of Virginia) December 10, 1:15 P.M. -3:30 P.M. (A recess was taken from 2:00-2:30 P.M.) 4. Bolling v. Sharpe (District of Columbia) December 10, 3:30 P.M. -4:30 P.M. December 11, 12:10 P.M. -1:27 P7m . 5. Gebhart v. Belton (State of Delaware) December 11, 1:27 P.M. -3:50 P.M. (Luncheon recess was taken but the specific time was not indicated.) There was no decision following the presentation of argument in the 1952 cases. On June 8, 1953, the Court ordered that the cases be reargued October 12, 1953. On August 4, 1953, upon motion of the Attorney General of the United States, and without objection by the parties, the Supreme Court postponed reargument until December 7, 1953. On reargument, cases were heard in the following order: 1. and 2. Briggs v. Elliott and Davis v. County School Board of Prince Edward County, Virginia December 7» 1:05 P.M. -4:30 P.M. (Luncheon recess was indicated but no specific time was noted.) December 8, 12:10 P.M. -2:00 P.M. (A recess was taken from 2:oo-2:30 P.M.) 2:30 P.M. oral argument resumed. (The transcript indicates oral argument was concluded at 2:15 P.M. but that is obviously in error.) 3. Brown v. Board of Education December 8, 2:50 P.M. -3:40 P.M. 4. Bolling v. Sharpe December 8, 3:40 P.M. -4:30 P.M. December 9, 12:07 P.M. -1:20 P.M. 5. Gebhart v. Belton December 9> 1:20 P.M. -2:40 P.M. (A recess was taken from 2:00-2:30 P.M.) The Court rendered its decisions in the cases from the four states IBrown v. Board of Education), and the District of Columbia (Bolling v. Sharpe), on May 17> 1954. The Court held that segregation in public schools was a denial of the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment and therefore unconstitutional. The Court also restored 360 the eases to the docket for further argument in 1955 on questions of implementation of the decrees. Those argu ments were not included in this study. Analysis The Supreme Court does not accept all cases. If the issue or issues involved are of no special interest or significance, the Court refuses to hear them. All of the school cases were apparently selected with care and grouped together by the Court for two reasons: (1) The central legal issue, namely, the constitutionality of segregation based solely on race, was common to all five cases; and, (2) the factual and legal aspects of these cases were suf ficiently different so as to test the central issue from several points of view. There was nothing in the transcript or related data which indicated why the Court arranged the cases for oral argument in the sequence in which they were heard. The Supreme Court may order counsel to appear or take a case from a lower court. When neither the school authorities nor the Attorney General of the State of Kansas filed a brief or indicated a readiness to argue in Brown v. Board of Education, the Supreme Court ordered the State of Kansas, through its Attorney General, to appear for oral argument. The importance of and interest in the school cases were also manifested by the Court's action in ordering 361 that Bolling v. Sharpe be heard by the Supreme Court prior to argument in the United States Circuit Court of Appeals. When counsel knows he is a part of a related se quence of arguments, and knows the order of that sequence, the nature of his oral argument will probably be influenced. In letters to the writer, several counsel indicated that their plans for argument were influenced by their knowledge of preceding and following cases. The references to specific time periods allowed counsel for argument in the school cases, revealed that each side of a case was allowed approximately one hour. When two counsel representing the same side, divided their allotted time, each counsel was allowed about one-half hour. The Court occasionally allowed five or ten extra minutes to counsel. Some counsel apparently did not use all the time allowed for argument. Of necessity, counsel had to try, in his advance preparation, and, of course, during oral pre sentation, to limit his selection to one, two, or at the most three contentions. He had to condense the presentation of the law and facts of his case to the most essential items. The record of his case amounted to hundreds of printed pages. In argument before the Supreme Court, he could expect to cover only a small part of the material. Obviously, therefore, the time limits imposed by the Court influenced the nature of the oral arguments, forcing counsel to choose the most important points, and to word 362 them succinctly. Whether he made good or poor choices in the selective process, probably determined to a significant extent the effectiveness of those oral arguments. Counsel who argued in the Supreme Court Description (The following references to counsel’s titles and positions are applicable to the years 1952-1953.) Counsel who argued against segregation were: Robert L. Carter: NAACP Legal Defense and Educational Fund Jack Greenberg: Assistant Counsel, NAACP Legal Defense and Educational Fund George E. C. Hayes: NAACP National Legal Committee Thurgood Marshall: Director-Counsel, NAACP Legal Defense and Educational Fund James M. Nabrit, Jr.: NAACP National Legal Committee Louis L. Redding: NAACP Legal Defense and Educational Fund Spottswood Robinson, III: NAACP Legal Defense and Educational Fund J. Lee Rankin: Assistant Attorney General of the United States Counsel who argued for segregation were: J. Lindsay Almond, Jr.: Attorney General of the State of Virginia John W. Davis: former United States’ Ambassador to Great Britain, and 192*1 Democratic Candidate for President of the United States 363 Milton D. Korman: Corporation Counsel for the School Board of the District of Columbia T. Justin Moore: Rector of the University of Richmond, Richmond, Virginia Paul E. Wilson: Assistant Attorney General of the State of Kansas H. Albert Young: Attorney General of the State of Delaware Analysis On the basis of the evidence in the transcript, it would be difficult to single out one or two advocates for special praise or censure. Similarly, it would be difficult , * to say, "The best team won." The ramifications of the total persuasive process of oral advocacy in the school cases appeared much too complex for such determinations. Counsel who argued the school cases were a highly skilled and distinguished group, generally recognized as outstanding in the legal profession. Many held high offices in their respective states. With the exception of J. Lee Rankin, all counsel who argued against segregation were members of the NAACP. Based upon literature researched for this study, letters from counsel, and the transcript of the arguments, there was substantial evidence which pointed to the teamwork approach used by members of the NAACP for these cases. NAACP lawyers planned their strategy many years prior to the School Segregation Cases. They followed a pre-determined plan. Since the separate-but-equal doc trine was so firmly entrenched, their strategy called for 36 H an Initial attack on professional and law schools. As previously discussed In Chapter IV, the equalization of those educational facilities was both inordinately expen sive and academically impossible. While the strategy of the NAACP attorneys was expressly reported, it can only be surmised that similar teamwork and planning was used by opposing counsel. Evidence of this cooperation was mani fested in the transcript by a seeming division of the issues to be stressed by particular counsel. Justices of the Supreme Court Description Chief Justice Fred M. Vinson heard oral argument in the school cases in 1952. Vinson died on September 8, 1953, and Earl Warren was named Chief Justice. Warren heard the 1953 rearguments. The following Associate Justices heard arguments in 1952 and 1953: Hugo L. Black Harold H. "Burton Tom C. Clark William 0. Douglas Felix Frankfurter Robert H. Jackson Sherman Minton Stanley Reed Analysis No conclusive evidence existed upon which to deter mine the opinions of the Justices, If any, regarding the central Issue In these cases prior to oral argument. Neither was It possible to conclude whether the oral argu ments swayed the Justices for or against the respective parties involved. Letters from some of the participating counsel indicated diverse views concerning the possible influence of oral argument on the Justices. Tentative conclusions might be drawn from their questions and answers regarding the predilections of certain Justices prior to decision. For example, Justice Frankfurter utilized a considerable amount of time questioning various counsel about the problem of implementation. It was apparent that the Court had not made up its collective mind on the basic constitutional issue after the 1952 arguments. This con clusion is deducible from the fact that the Court asked counsel to reargue the matter in 1953 and to answer speci fic questions which obviously concerned the Justices. Unquestionably Justice Frankfurter was the most active questioner on the bench. He continually interrupted counsel— examining, challenging, debating, searching for answers to penetrating questions as well as the implications of those answers. Justice Black did not interrupt counsel as often as Justice Frankfurter, but when he did, he pursued his questions with determination. Chief Justices 366 Vinson and Warren, and Associate Justices Reed, Jackson, and Burton interrupted occasionally. Justice Douglas’ principal series of questions were made primarily for the purpose of "rescuing” two counsel for the Negro children who were having a difficult time with Justice Frankfurter. Justices Clark and Minton asked practically no questions. Issues and Contentions presented in the School Segregation Cases Description Although the School Segregation Cases provided a broad spectrum of different geographic, legal, and factual situations, there was one central issue: Was the segrega tion of public elementary and high schools on the basis of race unconstitutional? Counsel for the Negro children argued the central issue and sub-issues using these contentions: 1. Negro children are mentally and psychologically harmed because of legally imposed segregation. There fore, segregated schools are inherently unequal and a violation of the equal protection clause of the Four teenth Amendment. This was not an issue in Bolling v. Sharpe. The District of Columbia case was not tried in the United States District Court and thus no evi dence of such injury was introduced. In the Bolling case, the District Court granted a motion to dismiss 367 plaintiff's complaint prior to trial. It was appealed to the United States Circuit Court of appeals and prior to argument was, by request of the United States Supreme Court, transferred directly to the latter Court. 2. Segregation in public schools, based solely on race, is an unlawful and wrongful classification with out legal justification. It is, therefore, in vio lation of the equal protection clause of the Fourteenth Amendment. 3. The defendant School Boards had failed to provide equal or substantially equal school facilities and therefore should integrate the schools promptly. This argument was not made in the Kansas case where facilities were admittedly equal. In the District of Columbia case there was no evidence of equality or inequality of facilities since it was not tried. The District of Columbia case required a legally different constitutional approach to the issues and contentions. Since the District comes under federal jurisdiction, the Fourteenth Amendment, applicable only to the states, was not available to counsel for the Negro children. They contended as follows: 1. Segregation in public schools, based solely on race is an unlawful and wrongful classification without legal justification. It is therefore unconstitutional 368 and in violation of the due process clause of the Fifth Amendment. 2. No District of Columbia statute made school segregation mandatory. Counsel argued that to inter pret the District of Columbia statutes otherwise would amount to an unconstitutional Bill of Attainder, the "punishment of named [Negro children] individuals without a Judicial trial." Those who argued for the States and the District of Columbia used these contentions: 1. The Plessy separate-but-equal doctrine was the law of the land and no legally acceptable reason was advanced by the plaintiffs to change that long estab lished "lighthouse" case. If the Negro schools were not equal at the time suit was brought against the school board, then the Court should give that school board time to equalize the facilities. If the school boards then proceeded in good faith to equalize their schools, the Court should not order desegregation of those schools. 2. The states, under their police powers and powers reserved to them which are not expressly dele gated to the federal government, should have the right to decide the constitutionality of their segregation laws. 369 3. The issue involved is legislative and not judicial. 4. Segregation and the separation of the Negro and white races is a "way of life" in some states. It was argued by certain counsel, especially Attorney General Almond of Virginia, that dire consequences would occur if the Court interferred with their "way of life" by desegregating their schools. In the District of Columbia case, Korman’s arguments re futed those advanced by Nabrit and Hayes. Robinson, counsel for Negro children from Virginia, and Young, representing Delaware, both contended that grave problems in school planning and administration would result if schools were segregated and desegregated on account of the constantly shifting equilibrium between equality and inequality. Thus, Robinson and Young agreed that there was and could be a constant shifting of equilibrium In physical school facilities. They also agreed on the first level of inference, namely, that the shifting equilibrium would require almost constant adjustment from segregation to desegregation and then a return to segregation. They clearly disagreed on the second level of inference. Rob inson argued that segregation based on the separate-but- equal doctrine was impractical. Young, of course, contend ed that schools which were equal, or substantially equal, or in the process of being equalized, should continue to be 370 separate. Although representing completely divergent views, both counsel concluded that the solution, regardless of the Court's decision, should be permanent. The 1953 arguments made by counsel in answer to the five principal questions and related sub-issues posed by the Court, dealt with a historical study of the Four teenth Amendment, the powers of Congress to implement the Fourteenth Amendment, the right of the Supreme Court to abolish segregation, the advisability of granting immediate or gradual relief if desegregation was ordered by the Court, and the specific nature of the decree to be drawn to enforce an order of the Court. Counsel repeated many of the arguments made in their 1952 presentation. In its decision in Brown v. Board of Education (1954), the United States Supreme Court said: Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustive consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although the sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.1 1347 U.S. 483, 489. Analysis Analysis of the Issues and contentions revealed the evidence and the law used by counsel to support their argu ments . 1. Evidence: Evidence is any species of proof legally presented at the trial of any issue by testimony of witnesses, records, documents, and so forth, for the purpose of inducing belief in the minds of the court or Jury as to the contentions of the respective parties. Various facts may be influential on the court although not introduced. By "judicial notice," a court recognizes the existence and truth pf certain facts without the production of evidence. As detailed in Chapter III, and referred to in the decision as Footnote 11, evidence of the psychological and emotional injuries to Negro children on account of legally enforced segregation was introduced in all four state cases. This evidence was introduced to support the first conten tion: segregated schools were inherently unequal and there fore unconstitutional. The plaintiffs utilized recognized expert witnesses, including sociologists, psychologists, and educators, to give opinion testimony. From the evi dence, the Kansas and Delaware courts agreed that Negro children were harmed by school segregation. In South Carolina and Virginia, the courts were not similarly per suaded. Since the District of Columbia case did not 372 Involve a trial, no such evidence was Introduced. It was obvious that this evidence was considered Important by the Court since It was stressed In the Brown v. Board of Edu cation decision. "Sociological" evidence was first intro duced in the Sweatt and McLaurln cases. The Supreme Court, while noting the "excellent" evidence, chose to base its decision in those cases on other grounds. The sociological evidence was of considerable value in supporting a second major contention of counsel for the Negro children. It will be remembered that counsel argued that segregation based solely on race was an unconstitu tional, and unjustifiable classification. The evidence demonstrated among other things, that a Negro child’s cap acity to learn is no different from any other child of different racial origin. Therefore, segregation on the basis of race could not be predicated on the argument that it was necessary because of intellectual differences in Negro and white children. The third contention involved the actual physical inequality of the schools. This contention was supported by Innumerable statistics, showing inferior buildings, gymnasiums, laboratories, libraries, classrooms, faculty, playgrounds; the necessity of traveling long distances to segregated schools; the differences in amount of tax funds spent for Negro and white schools. 373 The counsel who opposed segregation generally sought, by their evidence or their arguments, to rebut the contentions raised by their opponents. In the South Caro lina, Delaware, and Kansas cases, no evidence was Intro duced by the defendants which either Impeached or contra dicted the plaintiffs’ evidence of harm to Negro children. In Virginia, defendants' counsel produced their own experts who testified that no harm resulted to a Negro child on account of segregation. Justice Frankfurter questioned the value and necessity of the sociological evidence since he was of the opinion that the Justices could take "judicial notice" of the writings in the "sociological" field. Thurgood Marshall, however, in his 1952 argument, contended that he did introduce the evidence and if it were to be attacked by the defendants it should have been done in the trial court where he could have had the opportunity of cross-examining defendants' witnesses. Defendants' counsel also came to the Supreme Court prepared with a great number and variety of statistics to prove that Negro and white schools were equal or substantially equal; or, that large sums of money were authorized or already being spent to equalize the schools as quickly as possible. This parti cular argument was made to persuade the Court that there was no need to desegregate. Since the schools in 1952 were equal or would soon be equal, the Pless.v doctrine would then be applicable. 374 2. The Law: Law is ordinarily defined as that which is laid down, ordained, or established. With refer ence to its origin, law is derived from legislative acts such as statutes, constitutional provisions, and Judicial precedents. The line of decisions by the United States Supreme Court, interpreting various provisions of the United States Constitution, specifically in reference to the school cases, were described and analyzed in Chapter IV. With reference to the law, counsel for the Negro children were faced with the long and well-established precedent of Plessjy v. Ferguson, the separate-but-equal doctrine. It was necessary that this legal doctrine be squarely met or evaded. In the Kansas case, Carter stip ulated at the beginning of his argument, that the schools for Negro and white children were equal in all respects. If the schools were equal, then the Plessy doctrine should apply. Logically then, if the doctrine were applicable, the Kansas laws permitting segregation should be considered constitutional. Thus the central issue of constitutionality of laws decreeing segregation in public schools on a racial basis was squarely raised and precedent challenged. By falling to raise this contention on a cross-appeal, counsel for the Negro children from Delaware were denied the right to argue this issue during the 1953 arguments. 375 To meet or evade the doctrine, plaintiffs’ counsel used the following legal arguments: 1. Plessy could not be considered precedent for, and was inapplicable to, the school cases. The Plessy case involved the constitutionality of a Louisiana law separat ing Negroes and others on an intra-state railroad. The mention of school segregation was only Incidental and not to be considered the holding of the Court but "dicta” only. (Dicta are the opinions of a judge which do not embody the resolution or determination of the Court.) Counsel for the Negro children attacked the Gong Lum and Cummings cases (used by several lower courts to justify their decisions against the plaintiffs) on the ground that those cases did not raise the basic constitutional issue. 2. In the state cases, advocates for the Negro children, using "sociological" evidence, argued that seg regation, on the sole basis of race, was unconstitutional on two grounds: (a) Since Negro children are harmed by being forced to attend legally segregated schools, such schools must be Inherently inferior and unequal. Therefore, laws imposing school segregation are unconstitutional, being in violation of the equal protection clause of the Fourteenth Amendment. (b) Since the Negro child's basic intelli gence and ability to learn, given the same 376 environmental conditions, is no different from a white child, segregation solely on the basis of race is an unconstitutional classification in vio lation of the equal protection clause of the Four teenth Amendment. 3. While seeking to evade or challenge the Plessy doctrine, plaintiffs* counsel also used it. Based on the evidence, the Chancellor’s Court and the Delaware Supreme Court found the physical facilities of the segregated Negro schools to be unequal. That court ordered the imme diate desegregation of Delaware public schools. In the 1953 arguments, Jack Greenberg was restricted solely to the issue of the propriety of the Delaware court’s decisions. Although Spottswood Robinson, counsel for Negro appellants in the Virgina case, briefly argued the equal protection and due process clauses of the Fourteenth Amendment, he spent most of his time demonstrating statistically that the Negro school facilities were inferior and the schools should therefore be desegregated. 4. As previously noted, the legal issues and contentions of plaintiffs' counsel from the District of Columbia were of necessity different from the States' arguments. Because there was no trial, they had no evi dence regarding either sociological testimony or statistics dealing with the equality or inequality of physical facili ties of the respective schools. Additionally, the District 377 of Columbia is under federal jurisdiction as differeren- tiated from the states. Their legal arguments were: (a) The District of Columbia statutes dr ''«ng with schools did not make segregation mandatory. (b) They repeated the unlawful classification arguments, but with one difference. They contended that such classification was unconstitutional and in violation of the due process clause of the Fifth Amendment. Since they had no sociological evidence, they utilized several applicable prece dent decisions to support their position. (c) Their legal arguments seeking to demon strate that segregation of the schools in the District were unconstitutional as Bills of Attainder, and a violation of the United Nations Charter, were obviously disregarded by the Court in its decision, Bolling v. Sharpe. The counsel opposed to desegregation sought to re but the issues and contentions raised by counsel for the Negro children by directly contrary argument: 1. The Plessy case had been the law for ninety years prior to the School Segregation Cases. It was well established, tested, and governing precedent. If the respective schools were equal or substantially equal, then the state laws providing for segregated schools were constitutional. If not equal, thenthe lower courts should 378 not immediately desegregate, but allow a reasonable time to equalize the facilities. 2. Counsel for the States denied the legal validity of the expert sociological testimony. 3. A major legal contention raised by all counsel for the defendants was that the overall issue of segrega tion was a legislative and not a judicial one. They argued that the fifth section of the Fourteenth Amendment did not empower the Court to decide this question. It was within the province of the respective legislatures to change the law. 4. As another major legal contention, counsel argued that since the power to desegregate was not ex pressly delegated to the federal government by the consti tution, then the right to legislate in this field was reserved to the states. Procedures Used in Oral Advocacy Description Chapter II was devoted to determining the function, characteristics, and essentials of oral advocacy. Oral argument is a persuasive process— an attempt to sway the collective mind of the court to affirm or deny the relief sought. The primary function of oral argument is to clarify the issues and test the validity of the arguments before the court. 379 Oral argument in appellate courts ordinarily in volves an organizational pattern including seven general steps: 1. Preparation 2. Opening Statement of the Case 3. Statement of the Pacts H. Argument on the Law 5. Rebuttal 6. Answering Questions from the Court 7. Delivery These steps emerged from an analysis literature in the field and were verified by an examination of the data in this study. These steps cannot always be considered as discrete, chronological categories. They represent an amalgam of the essential elements of appellate advocacy. Analysis With some variation, all counsel in the School Segregation Cases utilized the seven essential steps of oral advocacy described above. By reflecting upon the total data, including the transcript, briefs, letters from counsel, and authorities cited, certain Inferences were drawn: Preparation Undoubtedly preparation for oral argument before the Supreme Court was of basic and overriding importance. In the interest of their causes, the advocates had to deter mine how they could most effectively communicate with the Court. -Counsel had to examine thousands of pages in the record of the school cases. The advocates were then faced with presenting a comparatively short and concise distil lation of this material in the form ofawritten brief to the Court. Although a brief should be of reasonable length, counsel were obligated to present the salient facts, argu ments, cases, and citations. The briefs submitted to the Court in 1952 and 1953 varied in length from about 15 to over 400 pages. During his argument in 1953* Korman, representing the District of Columbia, made repeated refer ence to various documents, testimony, and opinions. Justice Jackson interrupted him and asked if the citations referred to were included in his brief. When Korman replied they wens not, the Justice's caustic response was: "I wonder if you are going to rely on our memory?" The briefs described the manner in which the cases traveled from the lower court to the Supreme Court; the Jurisdiction or right of the Court to consider the cases; the issues of fact and law involved, a summary of argument, and discussion of the principal Issues. The advocates were faced with the problem of plan ning their oral arguments without obviously repeating their written briefs. Many times during oral argument, counsel 381 referred the Court to their briefs, citing page numbers, for details which they did not cover orally. The inference could be made that when counsel in the school cases pre pared for oral argument, they were faced with innumerable questions. In the hour allowed, they had to determine which arguments should be stressed or omitted. Assuming that the Justices cross-examined closely for an extended period, counsel had to decide which part of the prepared argument could be deleted without missing or ignoring other salient points in the few minutes remaining. Counsel must have prepared for such contingencies. Analysis of the transcript indicated numerous occasions when counsel were required to change their argumentative course, eliminate one phase of argument, or move into a closing peroration. Planning and preparing for argument in the Supreme Court begins at the time counsel file their first pleadings in the trial court. The relief requested from the Supreme Court can be no greater than the record they bring to that Court. As noted in Chapter VI, Greenberg, counsel for Negro plaintiffs, encountered severe buffeting by the Court when he attempted to argue the issue of the unconstitu tionality of segregation per se since he had failed to raise that issue in a cross-appeal. Opening Statement of the Case The opening statement in an oral argument is or should be similar to the opening paragraph In a newspaper story. It should tell the whole story in a hurry. In legal parlance, the opening statement should consist of a concise statement of the nature of the case, its legal history, the holding of the lower court, and a brief sum mary of the facts and law to be argued. In only one or two instances did counsel's opening statements vary from this pattern. In 1953* Davis preceded the outline of his case with remarks about the amount of written material which counsel had prepared for the "possible entertainment, if not the illumination, of the court." Incidentally, Davis' remarks were received with appreciative laughter from the Court. Humor, while usually a splendid method of relieving the tedium of any long and involved persuasive process is seldom used in the Supreme Court. Statement of the Facts As noted in Chapter II, most legal contentions are won or lost on the facts. Pacts must be presented candidly, fully, and without evasion. In contrast to many other persuasive speaking situations, it is apparently important in oral advocacy in the Supreme Court that counsel candidly admit the facts against him as well as state those favor able to him. Certainly this characteristic of appellate persuasion distinguishes oral argument in the Supreme Court as different from several other speaking situations. 383 No one should be better acquainted with the facts of his case than the counsel who presents the cause. If the attorney who argues the case Is brought In for the specific purpose of such argument and has not tried the case below, he Is obligated to read thousands of pages of testimony, evidence, and documents introduced in the trial, and lower appellate courts. Attorney General Wilson had not tried the Kansas case in the lower court. When he was requested by the Court to appear and argue, he was obligated to acquaint himself with the record. Throughout oral argument in the school cases, the Justices examined counsel meticulously and intensively on facts. These able counsel were obviously prepared to answer such queries. Argument on the Law The facts lead the court to the law. Under our stare decisis system of jurisprudence, the only way the case presented by counsel can be compared with a previous legal decision is by an interpretive comparison of the facts of the respective cases. The manner in which counsel argued their facts and precedent in the school cases was entirely dependent on whether or not they wished the sup port of precedent or sought to overthrow it. The advocates who desired that the law or precedent established in Plessy v. Ferguson be made applicable to the school cases, argued also on the basis of established principles: If facilities 384 were equal or substantially equal, then the states had the right to establish and maintain separate facilities. On the other hand, counsel for the Negro school children argued that their respective cases could be distinguished or were different from precedent case law and therefore the precedent was not applicable. These counsel contended throughout their arguments that their facts and evidence were such as to militate against the imposition of the precedent cases and law which were unfavorable to their cause. An analysis of the arguments on precedent law dem onstrates that the process is principally argument from analogy. Whether or not a precedent case is applicable or inapplicable to the instant one is demonstrated by showing the similarities or differences between the two cases. Whether or not a court is then finally persuaded that precedent is or is not applicable is dependent on the bal ancing of those similarities and dissimilarities. It was apparent throughout the arguments that the task of counsel who advocated a departure from precedent had a significantly more arduous task than the advocates who argued for the maintenance of the status quo. The courts are prone to follow established precedent. They seek stability and continuity in the law as opposed to departure from law long established. Justice Frankfurter and others continually questioned plaintiffs’ counsel 385 regarding the applicability of Plessy. Gong Lum. and other cases, to the school cases. Rebuttal In the Supreme Court, as well as in other appellate courts, the appellant's attorney has the privilege of reserving a portion of his total allotted time for rebuttal. A review of the arguments indicated that the privilege to refute was exercised in all but two instances. The tran script demonstrated that rebuttal was utilized by counsel not only for the purpose of replying or countering argu ments of the opposition, but also was used to close on a moral plane: segregation on the basis of color was wrong. Several counsel for the Negro children closed emotionally and sometimes displayed anger and indignation at what they considered "racist" arguments of opponents. Most authorities on appellate advocacy warned against the dangers and use of rebuttal. They suggested that rebuttal exposes counsel to a possible barrage of accumulated questions from the court. The authorities also advised advocates to use rebuttal only when needed to re fute or supplement new matters raised by their adversaries. As Justice Jackson stated, the most experienced attorneys make the least use of the privilege. The extensive use of rebuttal in the school cases, however, supported the belief that experienced and capable counsel can and do use 386 rebuttal to great advantage. Some of the most eloquent and moving presentations In the school cases were made by several counsel during this portion of their arguments. Answering Questions from the Court The authorities and several participating counsel stated that the most difficult part of oral argument is the examination of counsel by the Court. It is an exacting and demanding experience. It was apparent from a reading of the transcript that during this part of the argument the skill, knowledge, and ability of the advocate were sharply and continually tested. The attorneys were questioned not only about the law and facts of their own cases. They were constantly cross-examined on collateral issues, cases, and law. Counsel had to answer questions promptly and accur ately. Considering their limited time, the advocates had to deftly but courteously disengage themselves from insis tent examination by some Justices. This was especially true in regard to examination on issues not directly germane to the one under consideration. If counsel could not accom plish the "disengagement," the presentation of relevant and material portions of their cases was seriously affected and limited. When oral argument was made without interruption from the Court, counsel’s language was usually clear, 387 concise, and grammatical. It could be assumed that the argument had been in process of preparation for a consider able period prior to the hearing. The presentation had undoubtedly been written,re-written, and polished; it had been rehearsed, partially memorized, and then, with only a few notes, counsel was probably prepared to talk smoothly, logically, and even eloquently. Continual interruptions and questions from the Court changed, in many instances, the smooth, polished, and grammatical presentation into a sometimes confused and ungrammatical speech pattern. An analysis of the writings of legal authorities cited in Chapter II, and a study of the school segregation arguments, showed that counsel must be constantly on guard during questioning by the Court. The advocate must attempt to discover the tack of the questions and whether or not the Justice is leading him into a legal or logical trap. Counsel had to decide how much time he could give to his answer to a question and still be able to satisfy an in quisitive mind, disengage himself from a collateral issue, and get back into the mainstream of the basic argument. If he tries to disengage too quickly, or postpone an answer, he may offend a Justice or he may fail to impart some special enlightenment regarding his position. Counsel must evaluate the comparative persuasive force of what he wishes to argue and what he is being asked. If at times the advocates in the school cases became ungrammatical while 388 answering the Innumerable questions asked by various Justices, their difficulties were readily understandable. With their mind operating like a computer, calculating several equations simultaneously, the unrehearsed words are occasionally jumbled. Part of counsel’s preparation in cluded the attempt to anticipate the line of questioning by the Court. The agility with which most counsel handled the questions propounded by the Court strongly indicated extensive preparation and experience. Delivery As stated in Chapter I, this study did not under take an analysis of delivery based on such characteristics as vocal quality, pitch, rate of delivery, posture, facial expressions, or gestures. All considerations of oral argu ment were confined to the stenographic transcript. Having established the stature and experience of the counsel involved in these arguments, it is readily understandable that generally the presentations by the counsel were concise, lucid, and persuasive. The fact that one side prevailed and the other lost is not indicative of the quality of the arguments on either side. The conclu sion cannot be drawn that by winning, one side produced the better arguments and dellverd them in a more persuasive style. Many philosophical, political, and historical fac tors were unquestionably involved. It would be most difficult to single out one or two of the advocates involved in the school cases for special praise or censure from the point of view of delivery. John W. Davis, who represented the State of South Carolina, was generally considered one of the leading advocates for the defendants. His phrases flowed with a smooth and polished rhythm. His choice of words added strength to his compel ling logic. The smoothness of his delivery was apparent both in the uninterrupted presentation and during cross- examination by the Justices. On the other side, Thurgood Marshall was considered by the authorities as one of the leading counsel for the Negro school children. His style of delivery was considerably different from that of Davis. Earthy, colloquial, forceful, logical, knowledgeable— and at times almost incomprehensible, rambling, and ungrammati cal— but it was apparent that he commanded and received the respect of the Justices. It has been stated throughout this dissertation that counsel sought by their oral arguments to sway the Court to their respective points of view. Advocacy before the United States Supreme Court is basically a persuasive process not dissimilar in that respect from any other kind of persuasive speech form. Generally, however, argument before the Supreme Court differs principally in degree from other speaking situations, as follows: 390 1. The rules governing the presentation are rigid, formal, and enforced. 2. Counsel are faced with strict time limits which force the presentation of a vast amount of material Into an exceedingly restricted time period. 3. The restricted amount of time available to the advocate necessitates a meticulous selection of facts and law for argument. The selected issues and contentions can not always be presented due to the usual and continual Interruptions by the Court. Counsel is sometimes forced to select one major contention if the questions from the Court do not allow him enough time to explore perhaps two or three arguments. 4. The searching cross-examination of counsel by the Court is probably more tryinganddifficult than in any other speech form. The Court has unlimited authority to examine and probe into every aspect of the law and facts of the cases being considered as well as into related cases and areas of the law. Counsel, legally, traditionally, and practically owes the Court complete respect and obeisance. The tools available to deal with the questioner in other speaking situations, such as sarcasm, irony, answering a question with a question, ignoring the question or deferring the answer, are definitely not available in the Courtroom. 5. In practically no other speech form is the audience (the Justices) so completely informed. 391 6. It follows, therefore, that preciseness and candid ness in the presentation of facts and law are an absolute necessity. An attempt to color "truth" and conceal facts is quickly and sometimes curtly rebuffed by the Court. The advocate does not have the usual advantages possessed by speakers in other situations where emotionalism is substituted for reason in the persuasive process. Although the Justices will allow and are at times undoubtedly in fluenced by the "human" elements of a case, they will generally not countenance a deviation from sound logic and a clear exposition of the facts and law. 7. Rebuttal, which is prized and practically always utilized in some persuasive speech situations, is not always used in legal advocacy. Only in the hands of ex perienced and skilled counsel is rebuttal considered a "safe" and effective weapon of attack. 8. Because of the difficult, exacting, and complex problems and decisions faced by the advocate before and during argument in the Supreme Court, preparation is essential. In no other speaking situation must the pre paration for the persuasive process be more intensive and extensive. While standing before the country's highest Court, counsel must know not only his own facts, he should be fully acquainted with his opponent's facts; he must be fully conversant with the law favorable to his side as well as the law which might militate against a decision in his 392 favor; he should be prepared to compare and contrast favor able and unfavorable precedent cases with his own, and then be able to distinguish them both on the law and facts. The advocate must, because of his limited time, select and deliver his contentions in a logical and persuasive manner, being always ready to concisely and courteously answer the questions of the Court, and then be prepared to return to the mainstream of his argument. The ability to accomplish all of these phases of the persuasive process before the Supreme Court is not an "off the cuff" type of speaking situation. The wise and able advocate comes to the Court only after the most care ful mastery of his case. Did the oral arguments in the School Segregation Cases sway the Court in one direction or another? No one can answer that query with certainty. The participating counsel were divided on the role played by oral argument in the final decisions. The difficulties in evaluating the role of advocacy in the school cases is compounded when dealing with a problem of such great national importance as school integration and civil rights. As noted, in such a situation the Court was undoubtedly moved by many emotional and philosophical factors not readily apparent. The years of the arguments discussed in this dis sertation were 1952 and 1953* The Negroes of the United States had been freed from slavery for almost one hundred 39 3 years. They were no longer mere "property." And yet, they were still far from that first class citizenship which they demanded and expected. In the intensifying social, economic, and political ferment of the last three decades, the Negro had increas ingly demanded his rights and liberties under the Constitu tion and laws of this country. The Negro "revolution" in the United States, the new members of the Supreme Court— born and reared in a new era of differing political, philosophical, and social values— must have been influenced by the "revolution" and the repeated argument: There is no legal or moral basis for a child in the United States to be barred from a school because of the color of his skin. CHAPTER VIII SUMMARY AND SUGGESTION FOR FURTHER RESEARCH Summary The general problem in this study was to describe and analyze oral argument before the United States Supreme Court in the School Segregation Cases, 1952 and 1953. More specifically, the problem focused on the nature of the process of oral advocacy from preparation to presentation, the substance and language of the arguments, including the questions, answers, and comments by the Justices and counsel. The research method for the study was empirical- analytical: 1. Fourteen counsel presented oral argument in 1952 and 1953> and eight Associate Justices and two Chief Justices heard the arguments. 2. Primary and secondary data were gathered, namely, Ca) a complete copy of the stenographic transcript of all oral arguments presented in 1952 and 1953. (b) letters from counsel who argued then, as well as amici curiae who ap peared in the 1955 implementation arguments, (c) all written briefs submitted to the Supreme Court for the school cases, 39*» 395 (d) the literature relating to the characteristics and essential elements of oral advocacy, and (e) the sociologi cal and legal-historical background materials pertinent to the subject matter of the arguments. 3. The following procedures were used: (a) Read the oral arguments and decisions and become acquainted with the written briefs. (b) Gathered and read appropriate sociological and legal-historical background materials relative to the subject matter of the oral arguments. (c). Collected materials necessary for establishing the characteristics and essential elements in oral advocacy. (d) Synthesized the above materials into an organ ized pattern so that, first, the oral arguments # • could be clearly and accurately described, and sec ondly, the individual oral arguments could be ana lyzed in terms of the essential elements of advo cacy mentioned in item c immediately above. The function, characteristics and elements of oral advocacy, were reported in Chapter II. Oral argument is a process of persuasion. Among other functions, oral argument seeks to clarify facts and issues before the court. The procedural steps governing oral advocacy include: (1) pre paration, (2) opening statement of the case, (3) statement of the facts, (4) argument on the law, (5) rebuttal, (6) answering questions from the court, and (7) delivery. 396 The social science background necessary for the understanding, description, and analysis of the arguments presented to the Court, was provided in Chapter III. The principal sources for this background were the seven refer ences cited in the famous "sociological footnote 11" in the Court’s 195^ decision, Brown v. Board of Education. The primary legal-historical background to the School Segregation Cases, described in Chapter IV noted the applicable constitutional and statutory enactments and cases prior to 1952. Portions of the Fifth, Thirteenth, and Fourteenth Amendments were presented. The Civil Rights Acts of 1866, 1870, and 1875 were reviewed. Among twelve cases described were, Dred Scott v. Sandford, Plessy v. Ferguson, Sweatt v. Painter. In Chapters V and VI descriptive-analytical methods were applied to the arguments of fourteen counsel who appeared before the Justices of the Supreme Court in 1952 and 1953* respectively. The analysis of the arguments was presented in the chronological order used by the Court and counsel. Findings, interpretations, and conclusions were presented in Chapter VII. Suggestions for Further Research Perhaps the most important implication for future research is the possibility of analyzing the raw data used 397 in this study by means of a different method and set of criteria with resulting change in the major research pur pose. For example: What were the most prevalent types of logic (e.g., inductive, deductive, analogy, cause and effect) used in the oral arguments of the School Segrega tion Cases? What were the psychological appeals (e.g., drives, motives, attitudes) used in the oral arguments of the School Segregation Cases? Other questions arose from this research: 1. How do Aristotle's principles on how to win a law suit compare with the generally accepted criteria for effective advocacy today? 2. What are the predictable or observable areas of difference or agreement in attitudes of individual Justices of the United States Supreme Court toward specific issues? 3. How and to what extent are judges of a court in fluenced by outside pressures, such as public opinion? "How to inform the Judicial mind . . . is one of the most complicated problems," said Justice Frankfurter during argument on the school cases. 4. How do the essentials of oral argument outlined in this study compare and relate to the criteria for effective trial advocacy? 5. In the School Segregation Cases both appellants and appellees used a teamwork approach. What is the present role of particular organized groups in the handling of 398 legal or non-legal problems? 6. Do the techniques of persuasion In appellate and trial advocacy reflect community-social-philosophic differ ences in various sections of the United States? 7. What comparisons in advocacy may be made between experienced and inexperienced counsel? APPENDIXES APPENDIX A PARTICIPATING JUSTICES AND COUNSEL MOO APPENDIX A PARTICIPATING JUSTICES AND COUNSEL Vinson, Fred M., Chief Justice, 1952 Term Warren, Earl, Chief Justice, 1953 Term Associate Justices, 1952 and 1953 Terms Black, Hugo L. Burton, Harold H. Clark, Tom C. Douglas, William 0. Frankfurter, Felix Jackson, Robert H. Minton, Sherman Reed, Stanley Counsel who argued in the Supreme Court, 1952 and 1953 Terms (The following references to counsel's titles and positions are applicable to the years 1952-1953.) Counsel who argued against segregation were: Robert L. Carter: NAACP Legal Defense and Educational Fund Jack Greenberg: Assistant Counsel, NAACP Legal Defense and Educational Fund George E. C. Hayes: NAACP National Legal Committee 1101 402 Thurgood Marshall: Director-Counsel, NAACP Legal Defense and Educational Fund James M. Nabrit, Jr.: NAACP National Legal Committee Louis L. Redding: NAACP Legal Defense and Educational Fund Spottswood Robinson, III: NAACP Legal Defense and Educational Fund J. Lee Rankin: Assistant Attorney General of the United States Counsel who argued for segregation were: J. Lindsay Almond, Jr.: Attorney General of the State of Virginia John W. Davis: former United States' Ambassador to Great Britain, and 1924 Democratic Candidate for President of the United States Milton D. Korman: Corporation Counsel for the School Board of the District of Columbia T. Justin Moore: Rector of the University of Richmond, Richmond, Virginia * Paul E. Wilson: Assistant Attorney General of the State of Kansas H. Albert Young: Attorney General of the State of Delaware APPENDIX B LETTER, QUESTIONS TO PARTICIPATING COUNSEL, AND RESPONSES 403 173^1 Clark Street Enclno, California April 28, 1965 I am presently gathering materials for my Doctoral disser tation at the University of Southern California, Los Angeles. The working title Is: "A DESCRIPTIVE ANALYSIS OP ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE SCHOOL DESEGREGATION CASES, 1952-1955.” Since the study emphasizes the role of oral argument before the United States Supreme Court, I am writing to all counsel so Involved In the cases. Although I have access to the complete transcript of the oral arguments and briefs, never- the less there Is much to be learned from the experience of counsel and Impressions not obtainable from the printed tran script of oral argument. In order to better record and assess the role of oral argu ment In the school desegregation cases I feel that your views are vital. The Incorporation of this material into my disser tation could have considerable historic value and Interest. As a background or a tentative framework for your views, feelings and Impressions, I have prepared a series of ques tions which I have attached hereto. Please do not feel bound or restricted by the questions asked. The important thing is to obtain your views regarding the "weight of the role" played by oral argument in these cases. I would be deeply grateful if you would respond to the ques tions in whatever manner you wish and as fully as possible. Please accept in advance my thanks for any help you may give me herein. Respectfully, Mrs. Ruth Schwartz 405 QUESTIONS I. In your opinion what was the relative importance of oral vs. written argument in these cases? 1. Did you have the feeling or impression that oral argument could sway the Court either for or against the plaintiffs? 2. Or, did you think by the time oral argument took place the Court had already made up its collec tive mind? 3. In your opinion how important was oral argument in these cases? II. How did you plan your oral argument so as to not bur den the Court with material repeated from your writ ten argument, i.e., selection and arrangement of points of fact and law? 1. Even though you won or lost, would you change any part or parts of your argument if you could re argue today? III. In the delivery of your oral argument what did you consider the most effective elements and/or techni ques? 1. What part of oral argument did you consider most trying or difficult? IV. Do you have any general comments regarding the role of oral argument in these cases (or in general) be fore the United States Supreme Court? V. Do you have any additional comments which you feel might contribute to the interest or value of my dissertation? CARL FAIRCLOTH AT STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL T A U A H A B8 E B May 5, 1965 RALPH E. ODUM A M I TTANT ATTBH E T M M Mrs. Ruth Schwartz 17431 Clark Street Encino, California Dear Mrs. Schwartz: I think your project to analyze the effect of oral argument before the U. S. Supreme Court in the school desegregation cases has real value and I am therefore attempting to answer yaur questions. As to question one, it is my feeling that the arguments presented had considerable value to the Court; that the Court had not already reached a decision before the arguments were made as evidenced by the many searching questions asked by members of the Court during my own argument as well as almost all others who appeared. As to question two, the Florida brief was based on a sociological study which was objective and I believe gave the Court a fairly accurate idea of the factual problems confronting Florida. 9on Mrs. Ruth Schwartz 17431 Clark Street Encino, California Dear Mrs. Schwartz: 1 think your project to analyze the effect of oral argument before the U. S. Supreme Court in the school desegregation cases has real value and I am therefore attempting to answer your questions. As to question one, it is my feeling that the arguments presented had considerable value to the Court; that the Court had not already reached a decision before the arguments were made as evidenced by the many searching questions asked by members of the Court during my own argument as well as almost all others who appeared. As to question two, the Florida brief was based on a sociological study which was objective and I believe gave the Court a fairly accurate idea of the factual problems confronting Florida. Since this Information was necessarily statistical in large part, I attempted to supplement this in my argument by summarizing it In general terms which would in a brief time point up the extreme local variations in attitudes and social customs in Florida which has made our problems of compliance very difficult since no single over all state plan applicable in each community would be work able, plus the need for local officials to have a voice in shaping programs which would prove workable in their particular communities. I do not know of any change at this time which could have been made in our original argument. As to question three, I think that the most effective approach in this argument or any other is to be as honest, candid and direct as one knows how. The most difficult part of the argument was to answer questions of the Court and still try to stay on the track of the argument I had prepared. As to question four, I think that oral argument In general Is an opportunity to communicate with the Court as human individuals who usually have unexpected questions which the advocate has not anticipated or made clear in his brief. As to question five, I hope that your dissertation will result in a greater effort by lawyers in presenting oral argument to avoid hair-splitting legal technicalities and to talk to the courts In the most direct, simple and sincere way possible. In short, I think that the key to effective oral argument is Intellectual integrity and complete candor. Trusting this will assist you, I am, with best wishes, Ralph El Odum Sincerely, Ralph El Odum Assistant Attorney General REOw which the advocate has not anticipated or made clear in his brief. As to question five, I hope that your dissertation will result In a greater effort by lawyers In presenting oral argument to avoid hair-splitting legal technicalities and to talk to the courts in the most direct, simple and sincere way possible. In short, I think that the key to effective oral argument is intellectual integrity and complete candor. Trusting this will assist you, I am, with best wishes. Sincerely, Assistant Attorney General REOw EmraoK, W nuucxus, Gay, Powbxx. & Gxbsox E l e c t r i c B u i l d i n g R x c b x o k d , V i b o i n i a 2 3 2 1 2 M U COOK 703 M Il t o n 3 - 0 1 4 1 May 5, 1965 PILE NO. Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: As the former secretary to the late Mr. T. Justin Moore, I have received your letter of April 28, 1965 addressed to Mr. Moore concerning his argu ment before the United States Supreme Court in the school desegregation cases. Mr. Moore died on March 10, 1958, and I regret that we are unable to help you with the material you are gathering for your paper at the University of South California, Los Angeles. Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: As the former secretary to the late Mr. T. Justin Moore, I have received your letter of April 28, 1965 addressed to Mr. Moore concerning his argu ment before the United States Supreme Court in the school desegregation cases. Mr. Moore died on March 10, 1958, and I regret that we are unable to help you with the material you are gathering for your paper at the University of South California, Los Angeles. I Very truly yours, Former Secretary to Mr. Moore 44 80t7 TH OM AS M tN JA M IN OAY C A M H U N T O M .S r AACHIMLD O . M O W nT fO N icm ns r . p o w c u ,<m « M TW CK A. W BSON M. BBlCC OMAVCS «K>HM « . M ltLT r i i A N a s v . u m v o c m . o i i . b . w a n w i c a o a v c n p o m t LAWACMCC I.B U N C H A N O .IM I. T.W U STM M O O N C .U N . J O B E M e .C M I T C I I ,t M . m o d c m t a . d u f o m o C .M I1T O N f A t t t C r . ■ U W I S T> DOOACM O S O W O t C. rMfCMM^JW. H uirroir, Williams, Gat, Powsxx. & Gibson E l e c t r i c B u i l o i n o B lC H M O R l), V n u m n A 2 3 2 1 2 econocwM. m m w «IA M C t A . H A B W .g W . m u t » w i T n i n tlO N N J . ADAMS A M A COOK T O J M IL T O N 3 * 0 1 4 1 May 5, 1965 P D C D B flfC A C . D A U K M A O C D C O U N S E L K . AANQOLPM « M L U A M I* lO tl M KM SIT W. A N O C IIS O M -lS S A T. UUST1M MOO N t H M t m e n o. M UON V . W M tTC .JA . 4A M K D W . rtATHCTITQNCJ f t . ACMMCTM W MCKLCft 4ACA M. N H U S M A .P U S C T mommmr r . s a q o m i M C T K M O.W AM D.4M . Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: This letter is in reply to your inquiry of me under date April 28, 1965, regarding oral argument before the United States Supreme Court in the school segregation cases, 1952-55. I I am not now engaged in any segrega tion litigation, and 1 think it better that I do a m b m a s * ♦ • U a m i A f l f i / w s a ■ ?n o ^ l i n w r t u T 4 n « JAM Ift W. rU T H CTITOW C, ■ M .HCM NCTH « M C C U N iMCR M. IM U N n lll. W L U M A .P U tC V w q w w t r . m o o a t P t T M O .W M O | «IR. Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: This letter is in reply to your inquiry of me under date April 28, 1965, regarding oral argument before the United States Supreme Court in the school segregation cases, 1952-55. I I am not now engaged in any segrega tion litigation, and 1 think it better that I do not answer the questions contained in your in quiry or comment to you upon my part in past seg regation matters. Very sincerely yours, 21/157 Archibald G./Robertson LAKE. BOYCE AND LAKE A T T O R N E Y S A T L A W SUITE 8 0 0 CAPITAL CLUB BU1LDINC P .O . BOK M OO I.8EVERIYLAKE R A L E IG H .N O R T H C A R O LIN A G . EUGENE BOTCE TELEPH O N E TEM PLE 3 - 2 8 .5 I. BEVER1Y L A K E .IR - A R E A C O O * 0 1 8 May l i f 1965 M rs. Ruth Schw artz 17341 C la rk S t r e e t E n c in o , C a lif o r n ia D ear M rs. S ch w artz: In a c co r d a n ce w it h y o u r r e q u e s t o f A p r il 28 I e n c lo s e my answ er t o y o u r q u e s t io n n a ir e c o n c e r n in g my argu m ent i n t h e Supreme C ou rt o f t h e U n ite d S t a t e s i n t h e t h i r d h e a r in g o f t h e s c h o o l s e g r e g a t io n c a s e s i n 1 9 5 5 . A la p s e o f t e n y e a r s m akes i t som ewhat d i f f i c u l t t o b e s p e c i f i c , b u t t h e d e v e lo p m e n ts th r o u g h o u t o u r c o u n tr y d u r in g t h i s p e r io d r e -e m p h a s iz e t h e e n o r m ity o f t h e Supreme C o u rt* s e r r o r i n u su r p in g t h e pow er t o r e w r it e t h e C o n s t itu t i o n u n d er t h e g u i s e o f i n t e r p r e t a t i o n . Y ours v e r y t r u l y , I . BEVERLY!LAKE n rs* nucn acnwacxz 17341 Clark Street Encino, California Dear Mrs. Schwartz: In accordance with your request o£ April 28 I enclose my answer to your questionnaire concerning my argu ment in the Supreme Court of the United States in the third hearing of the school segregation cases in 1955. A lapse of ten years makes it somewhat difficult to be specific, but the developments throughout our country during this period re-emphasize the enormity of the Supreme Court's error in usurping the power to rewrite the Constitu tion under the guise of interpretation. Yours very truly IBL:vr Enclosure i 0 I t 7 QUESTIONS I.' In your opinion what was the relative importance of oral vs written argument in these cases? - II. 1. 2. Did you have the feeling or impression that oral argument could sway the Court either for or against the plaintiffs? f —4. . 3. Or, did you think by the time oral argument took place the Cgprt^ad_already made up its collective mind?. In your opinion how important was oral argument in these cases? a.— * j ^ • £»J cf t f l f. ^«i&« JRStf j t f j g - Wi » Z & c * * + 0 * xtc - ■ar£mmai >W or? Court with material repeated from your written argument, i.e., selection and arrangement of points of fact and law? ^ II. Even though ® youwon or lost, woulayoucHange parts of your argument if you could re-argue today? III. IV . In the delivery of your oral argument what did you consider the most effective elements and/or techniques? 1. 7V& What part of oral argument did you consider most trying 39S& Do you have ents regarding the role of oraX) argument in these cases (or in general) before the United /* * “***- + States Supreme Court? f II. Court with material repealed from your written argument, i.e.. c#**f y i * * * A».«Tj/i Ve i .A/4 •*?* 1; Even though 1;. .sven unoughvyou won or lose, would, you change any pi parts of your argument if you could redargue today? ( gry, Ct Lt t - @ € ^ ^ OSt, WOUJ III. In the delivery of your oral argument what did you consider the most effective elements and/or techniques? 1. What part of oral argument did you consider most trying or difficult? _ . . ^ C S itm fctf mA ^ y ' At +J Cf t J t f v C »y^< M^ir " •* &. 0+ * * 4 t& ^ 5 8 * 6 y v<.A] i<f«iw» .*7 ^ . v w -5" i' ’ *4 ~ 5 8 * 6 L +**/ IV* Do you have any g&neral comments regarding the role of or* argument in these cases (or in general) before the United States Supreme Court? C 2 f 2 0 £ § . yUftc++_ V. Do you have any additional-comments which you feel might contribute to the interest or value of my dissertation? 0 7 L 4 J U ! 17341 Clark Street / u / Encino, California Honorable Richard Ervin April 28, 1965 Judge of the Supreme Court Tallahassee, Florida l^ar'^dgr^vin: I am presently gathering materials for my Doctoral disser tation at the University of Southern California, Los Angeles. The working title is: "A DESCRIPTIVE ANALYSIS OF ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE SCHOOL DESEGREGATION CASES,1952-55.” Since the study emphasizes the role of oral argument before the United States Supreme Court, I am writing to all counsel so involved in the cases. Although I have access to the complete transcript of the oral arguments and briefs,*never- the less there is much to be learned from the experience of counsel and impressions not obtainable from the printed tran script of oral argument. In order to better record and assess the role of oral argu ment in the school desegregation cases I feel that your views are vital. The incorporation of this material into my disser tation could have considerable historic value and interest. as a background or a tentative framework for your views, feelings and impressions, I have prepared a series of questions which I have attached hereto. Please do not feel bound or re- I am presently gathering materials for my Doctoral disser tation at the University of Southern California, Los Angeles. The working title is: "A DESCRIPTIVE ANALYSIS OF ORAL ARGUMENT BEFORE THE UNITED STATES SUPREME COURT IN THE SCHOOL DESEGREGATION CASES,1952-55.” Since the study emphasizes the role of oral argument before the United States Supreme Court, I am writing to all couneel so involved in the cases. Although I have access to the complete transcript of the oral arguments and briefs,-never- the less there is much to be learned from the experience of counsel and impressions not obtainable from the printed tran script of oral argument. In order to better record and assess the role of oral argu ment in the school desegregation cases I feel that your views are vital. The incorporation of this material into my disser tation could have considerable historic value and interest. • as a background or a tentative framework for your views, feelings and impressions, I have prepared a series of questions which I have attached hereto. Please do not feel bound or re stricted by the questions asked. The important thing is to obtain your views regarding the "weight of the rolen played by oral argument in these cases. I would be deeply grateful if you would respond to the questions in whatever manner you wish and as fully as possible. • ; * Please accept in advance my thanks for any help you may give me herein. Mrs. Ruth Schwartz 2 I t 7 QUESTIONS I* In your opinion what was the relative importance of oral vs written argument in these cases? 1* Did you have the feeling or impression that oral argument - _i , could sway the Court either for or against the plaintiffs? . (hsCUt j C C a /f+ Jt *2. Or, did y<5u think by the time oral argument took place the V Court had already made up its collective mind?. 3. In your opinion how important was oral argument in these cases? i t- - _A II. How did you plan your oral argument so as to not burden the Court with material repeated from your written argument, i.e., selection and arrangement of points of fact and law? 1.. Even though you won or lost, would you change any part or parts of your argument if you could re-argue today? y K o III. In the delivery of your oral argument what did you consider the most effective elements and/or techniques? j j 1. What part of oral argument did you consider most trying or difficult? - T U y u r C t tU M jL c v J L f — f- IV. Do you* hive any general comments regarding the role of oral argument in these cases (or in general) before the United States Supreme Court? II* How did you plan your oral argument so as to not burden the Court with material repeated from your written argument, l*e*t selection and arrangement of points of fact and law? 1. Even though you won or lost, would you change any part or parts of your argument if you could re-argue today? / T o III* In the delivery of your oral argument what did you consider the most effective elements and/or techniques? 1* What part of oral argument did you consider most trying or difficult? ^ d»y/ IV* Do you have any general comments regarding the role of oral argument in these cases (or in general) before the United States Supreme Court? / / * V* Do you have any additional comments which you feel might contribute to the interest or value of my dissertation? % - f a L A j u ^ y ^ . 7 ^ f a t f a . 72m >4>/W v *'■ / W ( J L f a ^ U j £e_ [Page 2 of response from: Honorable Richard W. Ervin, Judge of the Supreme Court, Tallahassee, Florida.] '/v ~ T h C e A ^ ” ~f% \J 2,----^ % i * t r t V f i r H * b tllt7 J . L e e R a n k i n 3 8 W O T 4 4 T H S T R U T N S W YORK, N EW YORK 1 0 0 3 8 MURRAY HU. 7-282* May 17, 1965 Mrs. Ruth Schwartz 173^1 Clark Street Encino, California Dear Mrs. Schwartz: In answer to your questions about the oral argument before the Supreme Court of the United States in the school desegregation cases, 1952-55, I wish to say that I am fully satisfied that the oral argument could sway the Court either for or against the plaintiffs. I do not think that the Court had made up its collective mind, although I thought at the time that it had a disposition toward acting to strike down segregation. I believed then, however, and I am satisfied today that my opinion was correct that the Court had some problems about whether it had a duty to act or Whether possibly the obli gation was on the Congress and should be left there. I am also satisfied from my personal experience in the argument that the argument was of prime importance as I watched each of the Justices asking me many questions during my argument and it was apparent that after each had addressed his series of questions and largely exhausted those that had been in his mind, he seemed to lean back in his chair, back of the bench, and an- Mrs. Ruth Schwartz 173*11 Clark Street Encino, California Dear Mrs. Schwartz: In answer to your questions about the oral argument before the Supreme Court of the United States in the school desegregation cases, 1932-53* I wish to say that I am fully satisfied that the oral argument could sway the Court either for or against the plaintiffs. I do not think that the Court had made up its collective mind, although I thought at the time that it had a disposition toward acting to strike down segregation. I believed then, however, and I am satisfied today that my opinion was correct that the Court had some problems about whether it had a duty to act or Whether possibly the obli gation was on the Congress and should be left there. I am also satisfied from my personal experience in the argument that the argument was of prime importance as I watched each of the justices asking me many questions during my argument and it was apparent that after each had addressed his series of questions and largely exhausted those that had been in his mind, he seemed to lean back in his chair, back of the bench, and ap pear satisfied regarding the entire matter. This is the kind of Impression that counsel who have argued many cases obtain and their experience causes them to place reliance upon it. I planned my oral argument Independently so as to mere ly touch upon the materials in the written argument, recognizing that, as stated in the Government's brief, the history of the Fourteenth Amendment was not controlling regarding the decision of the cases before the Court, and then proceeding to the several questions that I thought would be critical in the Court's arriv ing at its decision in favor of ordering desegregation in the public schools. The most trying or difficult part of my oral argument was, as usual, the answering of questions by each of the Justices although it seemed at the time that I was able to answer their several inquiries soundly, and that was a satisfying experience. I think there is no question but what oral argument is of prime importance in all cases worthy of being brought before the Supreme Court of the United States, and <1 believe this is d conclusion shared by the Justices of that Court as well as most members of the bar who have had any extended experience before it. I would suggest that you do not overlook the fact that the several rearguments and questions that the Court addressed to counsel in written form were of great value to the Court in its final decision of these cases and demonstrates the care that the Court applied in the entire matter in its efforts to arrive at a correct and sound decision. Sincerely yours, f y J. Lee Rankin O F F IC E O F TH E CLERK S U P R E M E C O U R T O F TH E UNITED STATES WASHINGTON, O. C„ 20543 June 4, 1965 Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: I have been directed by the Chief Justice to reply to your letter to him of May 28th. I am sorry it is not possible nor is it the practice of the Justices of this Court to answer questions or to comment on any matters on the basis of correspondence. We have no material available for distribution on the issue involved and we can only refer you to a copy of the opinion of the Court, a copy of which I enclose. V ery t r u l y y o u r s , Encino, California Dear Mrs* Schwartz: I have been directed by the Chief Justice to reply to your letter to him of May 28th, I am sorry it is not possible nor is it the practice of the Justices of this Court to answer questions or to conment on any matters on the basis of correspondence. We have no material available for distribution on the issue involved and we can only refer you to a copy of the opinion of the Court, a copy of which I enclose. Very truly yours, JOHN F. DAVIS, Clerk BY ^ — -V ‘ ’ i Assistant Clerk Encl. $eamfr 3faWrial (fftarii rf jftarglattfr HOH" * - S X S ? 5 S ! i * C A m t r m * C A M U K I COUMTT D C - T O - . N O . CK CIL CO UN TY MOM. CONNNO O. C . N O lU N S " I S n S t « S f ° * RCMT COUNTY H O N . THOM AS U. KCAT'MO, UN. O U U N A N N tH COUNTY A I M C I A T C V U O O C CC-T* ! * . " * « . - o . Tttfl. DA ia#C TALNOT COUNTY h o m . ocoitoc ■ . r a s i n , j h . JU D O Z o # l S O d A D D O C IA T C J U 0 8 C C N K O T B O T O W O , M O. Hon. C. Ferdinand Sybert Court of Appeals Annapolis, Maryland Dear Judge Sybert: I received the enclosed letter .and questionnaire froo Mrs. Ruth Schwarts of Encino, California seeking ay views on oral argument in the school desegregation cases. You will recall that the opinion in Brown y. Bd. of Education, 99 Led 1083, 349 U.S. 294, was rendered by thief Justice Warren on May 17, 1954 when I was Attorney Ccnoral. Because these cases arose under different local conditions and their disposition would involve a variety of local problems, the Court required further argument on the question of relief and invited the Attorneys General of all the States requiring or permitting discrimination to present their views or. that question. We submitted a brief on behalf of Maryland, but wher. the time for argument arrived, you were then Attorney Gen* oral and argued the cause before the Court along with other Attorneys G en era l from a number of the southers states. For this reason. I am A S t O C I A T C J U O O C ccNTeavnLC,mo. , * * * W 1 M T COUNTY H O N .O C O W C I.ftA 9 IN ,J R . J U D O 2 8 | 1 9 0 ) MMeiATl JUDac v C N C »T C B T O W «a« * Hon, C. Ferdinand Sybert Court of Appeals Annapolis, Maryland Dear Judge Sybert: I received the enclosed letter „and questionnaire fron Mrs* Ruth Schwartz of Encino, California seeking ay views on oral arguaent in the school desegregation cases* You will recall that the opinion in Brown v, Bd, of Education, 99 Led 10S3, 349 U.S* 294, was rendered b y Chici Justico Barren on May 17, 1954 when I was Attorney Gcnoral. Because these cases arose under different local conditions and their disposition would involve a variety of local problems, the CouTt required further argument on the question of relief and invited the Attorneys General of all the States requiring or pernitting discriaination to present their views on that question* We submitted a brief on behalf of Maryland, but when the time for argument arrived, you were thon Attorney Gen* eral and argued the cause before the Court along with other Attorneys General from a number of the southers states* For this reason, I am unable to answer the questions propounded by Mrs* Schwartz and I aa quite sure she would appreciate any help that you can give her* With kindest regards, I am Very truly yours. Edward D* E* Rollins Associate Judge EDER/sa cc to Mrs* Ruth Schwartz \ \ \ QUESTIONS I. In your opinion what was the relative importance of oral vs written argument in these cases? „ ^ s ) , AtHfcc- y , < f o7<>; C W Q j c tfo 1. Did you have the feeling or impression that oral argument could sway the Court either for or against the plaintiffs? 2* Or, did you think by the time oral argument took place the Court had already made up its collective mind?. 3* In your opinion how important was oral argument in these cases? * Z h u t , M rtrd . , II* How did you plan your oral argument so as to not burden the Court with material repeated from your written argument, i*e*9 selection and arrangement of points of fact and law? 0/ J i Aj L&s i J s Ci M>d Av&Anjtjdt -U-- * 1. Even though you won or lost, would you change any part or parts of your argument if you could re-argue today? . . /J l0 yZ & C r /f aSaK U & i J L / Q A L j ^a l u et * *' (U s {$ dM<£s Cfc w L l * JLl c A j Q S _ Q ~ 4 s M L > ± u t£ III* In the delivery of your oral argument what did you consider the most effective elements, and/or techniques? nxv£<£Cf/ CUJ l 1* What part or oral argument did you consider most trying or difficult? % , m * I?* Do you have any general comments regarding the role of oral argument in these cases (or in general) before the United States Supreme Court? j H. . / - . / -w-— f-/l • // /* — t — t > / - X T M VO II* How did you plan your oral argument so as to not burden the Court with material repeated from your written argument v i . e . , selection and arrangement of points of fact and law? V/ j^AAii AJajL**-d AAASLAni j JM- ' % l.\ Even though you won or lost, would you change any part or parts of your argument if you could re-argue today? . /JlO /h ^ J u J '6 u ^ i t U s t f ' t &>. J & w &*****- * Ulr(M r & w U . JLl cAOL O^jyjUL^ u t ^ III* In the delivery of your oral argument what did you consider the most effective elements- and/or techniques? & s & USb ^j ut u. k & . C u. l L q JIaaX L l 1* What part or oral argument did you consider most trying or difficult? % , m ^ J i b 17* Do you have any general comments regarding the role of oral argument in these cases (or in general) before the United States Supreme Court? z£u/-/y J J y /L u a , C uJL V* Do you have any additional comments which you feel might contribute to the interest or value of my dissertation? . p - H VO UNITED STATES COURT O F A PPEALS FOURTH JUDICIAL CIRCUIT CHAMBKBSOB J u ly 1 , 1965 SIMON E. SOBELOFF U m i b S t a t u c i a c u r r j u o s s B A U nM O M S , M A M U m • M rs. Ruth S ch w artz 17341 C la rk S t r e e t E n c in o , C a lif o r n ia Dear Mrs. Schwartz: Your in q u ir y p o s e s a b i t o f a p rob lem , f o r w h ile I w ould like to be helpful, I really do not know how to answer your q u e s t io n s . The o r a l argum en ts in t h e s e g r e g a t io n c a s e s , I su p p o se , had some impact on the Court, but it is not possible for anyone b u t t h e J u s t i c e s t o m easure i t s e x t e n t . I sh o u ld n o t th in k t h a t t h e C ou rt had d e f i n i t e l y made up i t s m ind in a d v a n ce , b u t i t w ou ld b e u n r e a l i s t i c t o su p p o se t h a t on a q u e s t io n o f su ch public importance the Justices did not have at least some t e n t a t i v e v ie w s on th e s u b j e c t - m a t t e r b e f o r e t h e h e a r in g o f t h e c a s e s — in d e e d b e f o r e g r a n tin g c e r t i o r a r i . My own e x p e r ie n c e on th e b en ch le a d s me t o th in k t h a t Your inquiry poses a bit of a problem, for while I would like to be helpful, I really do not know how to answer your questions. The oral arguments in the segregation cases, I supp had some impact on the Court, but it is not possible for anyone but the Justices to measure its extent. I should not think that the Court had definitely made up its mind in advance, but it would be unrealistic to suppose that on a question of such public importance the Justices did not have at least some tentative views on the subject-matter before the hearing of i the cases— indeed before granting certiorari. My own experience on the bench leads me to think that oral argument is frequently important and sometimes decisive, but I have no clear feeling that it controlled in these cases either more or less than in the up«al / 'aeo Simon E. Sobeloff oztr H ow ard T T n iv r r sit y WAfiBnreonir, xxo. aoooi P u n M n July 7, 1965 Mrs. Ruth Schwartz 17341 Clark Street Encino, California Dear Mrs. Schwartz: In the absence of President Nabrit who is out of the country, I wish to acknowledge your letter dated June 22. Dr. Nabrit*s time was so heavily committed before his departure that he was unable to give your inquiry the time and thought required. Sincerely yours, (Mrs.) Leota A. Newman Secretary to President Nabrit NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE TWENTY WEST FORTIETH STREET • N EW YORK. N. Y. 10018 • BRyant 9 -1 4 0 0 July 20, 196? Mrs. Ruth Schwartz l?^ Clark Street Encino, Calif. Dear Mrs. Schwartz: I am sorry that it has taken me so long to get around to answering your letter but I have been extremely busy for the past three months. The answers to your questions are as follows: I. In my opinion, the oral argument in this case was of critical Importance in that it helped the court test the validity of the legal arguments presented and also to determine how to deal with the issue. I do not have the feeling that the oral argument necessarily swayed the court for or against the plaintiffs. I doubt that there was a possibility at that time for the court to hold that separate but equal should prevail. Oral argument helped clarify the court*s thinking and helped to decide how to solve the issue. II. My phase of the oral argumenty a s relatively r simple. My role was to present the basic legal argument for . the petitioners that segregation per se was unconstitutional including the argument that Plessv v. Ferguson had never been ±('+3 uj.arK otreei, Encino, Calif. Dear Mrs. Schwartz: I am sorry that it has taken me so long to get around to answering your letter but I have been extremely busy for the past three months. The answers to your questions are as follows: I. In my opinion, the oral argument in this case was of critical Importance in that it helped the court test the validity of the legal arguments presented and also to determine how to deal with the issue. I do not have the feeling that the oral argument necessarily swayed the court for or against the plaintiffs. I doubt that there was a possibility at that time for the court to hold that separate but equal should prevail. Oral argument helped clarify the court*s thinking and helped to decide how to solve the issue. II. phase of the oral argument jwas relatively f simple. My role was to present the basic legal argument for the petitioners that segregation per se was unconstitutional including the argument that Plessv v. Ferguson had never been applied by the court in the field of education. I would not change things because the purpose of my argument was to present petitioners' fundamental legal position, and the strategy worked fairly well. III. This is very difficult to answer. The attempt to show that Plessv v. Ferguson had never been applied in the field of education was a part of my argument that the court pressed me most. However, since I was supposed to take a*rigid and un- shakeable position, I persisted. As you will note in the opinion, the court adopts this view of the law. IV. I think that the court looks upon oral argument to assist it in clarifying the issues the-case presents. Often a zz\i Mrs. Ruth Schvartz 2. July 20, 196? Justice will press a particular Issue through counsel In order that the Import of the Issue and Its dimensions will be clear to other members of the court. This was the technique that Mr. Justice Franfurter used. Very often you do not know the full implications and dimensions of your written rationale— its meaning and Impact on other areas of the law— but in the Interchange between judge and counsel on oral Argument,,you and the court obtain a better grasp of what is at stake. Sincerely yours, Robert L. Carter , General Counsel <d&r r *\- JAMES R.MOREORD ISMH99B H . ALBERT YOUNG H. JAMES CONAWAY. J R . BRUCE M.STARGA7T WILLIAM T. TAYLOR RICHARD H. M A Y STUART B. YOUNC BEN T. CASTLE EDWUtDB. M AXWELL, I BANK O F DELAWARE BUILDINC '^clnu*^/bn4 ^jeleuoat#/ &&(?/ OLvMBIA 6*6931 J u ly 2 3 , 1965 M rs. Ruth Sch w artz 17341 C la rk S t r e e t E n c in o , C a lif o r n ia D ear M rs. S ch w artz: T h ere a r e many r e a s o n s why I h a v e b een u n a b le t o r e p ly s o o n e r t o y o u r r e q u e s t i n c o n n e c tio n w ith t h e m a t e r ia l f o r you r d o c t o r a t e d e g r e e . 1 h a v e b een v e r y b u sy i n c o n n e c tio n w ith my p r a c t i c e o u t s id e t h e S t a t e o f D e la w a r e . In a d d it io n , i n o r d e r t o f u r n is h you w it h a com p r e h e n s iv e r e p ly t o t h e many q u e s t io n s y o u p o s e , i t w ou ld r e q u ir e my e x a m in a tio n o f b r i e f s and docum ents w h ich I h a v e p r e p a r e d m ore th a n t e n y e a r s a g o . S in c e I p la n t o g o ab road f o r an e x te n d e d v a c a t io n , I th o u g h t I w ou ld w r i t e t o y o u and draw on my memory i n t h e h o p e t h a t i t may b e o f som e a s s i s t a n c e t o y o u . In lo o k in g b a ck o v e r t h e s e t e n o r e le v e n ■ a tV a t -t-V iA n r a l araum ent made som e im— >217 M rs. Ruth S ch w artz 17341 C la rk S t r e e t E n c in o , C a lif o r n ia D ear M rs. S ch w a rtz: T h ere a r e many r e a s o n s why I h a v e b e e n u n a b le t o r e p ly s o o n e r t o y o u r r e q u e s t i n c o n n e c tio n w ith t h e m a t e r ia l f o r y o u r d o c t o r a t e d e g r e e . I h a v e b een v e r y b u sy i n c o n n e c tio n w ith my p r a c t i c e o u t s id e t h e S t a t e o f D e la w a r e . In a d d it io n , i n o r d e r t o f u r n is h you w it h a com p r e h e n s iv e r e p ly t o t h e many q u e s t io n s y o u p o s e , i t w ou ld r e q u ir e my e x a m in a tio n o f b r i e f s and docum ents w h ich I h a v e p r e p a r e d m ore th a n t e n y e a r s a g o . S in c e I p la n t o g o abroad f o r an e x te n d e d v a c a t io n , I th o u g h t I w ou ld w r i t e t o y o u and draw on my memory i n t h e h o p e t h a t i t may b e o f som e a s s i s t a n c e t o y o u . In lo o k in g b ack o v e r t h e s e t e n o r e le v e n y e a r s , i t i s o b v io u s t h a t t h e o r a l argum ent made som e im - i p r e s s i o n upon t h e members o f t h e Suprem e C ourt s i n c e f o l lo w in g t h e c l o s e o f t h e f i r s t argu m en t, we w e re c a l l e d b ack f o r fu r t h e r argum ent t o c o n s id e r t h e e f f e c t o f t h e e n a b lin g c la u s e on t h e F o u r te e n th Amendment. I do n o t b e l i e v e t h a t t h e C ourt had a l r e a d y made up i t s c o l l e c t i v e mind a lth o u g h I am o f t h e o p in io n t h a t t h e r e w e r e in d iv id u a l members on t h e B ench who had d e f i n i t e l y made up t h e i r r e s p e c t i v e m in d s. In my e x p e r ie n c e b e f o r e t h e A p p e lla t e C o u rt, i t i s my judgm ent t h a t o n ly i n r a r e c a s e s d o e s t h e o r a l argum ent h a v e t h e e f f e c t o f c h a n g in g t h e t h in k in g o f t h e members on t h e B ench. M rs. Ruth S ch w artz P age 2 J u ly 2 3 , 1965 As t o t h e e f f e c t o f t h e o r a l argum ent upon t h e members o f t h e U n ite d S t a t e s Suprem e C o u rt, I am ta lc in g t h e l i b e r t y o f q u o tin g from l e t t e r s a d d r e sse d t o me o f t h e r e a c t io n s b y some o f t h e le a d in g f i g u r e s who p a r t i c i p a te d i n t h e s e g r e g a t io n c a s e s , w h ich r e s u l t e d i n t h e now fam ous May, 1954 d e c is io n . The l a t e John W. DeLvis, o n c e U n ite d S t a t e s Am bassador t o E ngland and p r e s i d e n t i a l n om in ee, an o u t s ta n d in g a d v o c a te o f. t h e A m erican B ar, i n a l e t t e r o f D ecem ber 1 4 , 1 9 5 3 , a d d r e ss e d t o m e, had t h i s t o s a y : " I w ant t o r e p e a t w hat I s a i d t o y o u i n W a sh in g to n , t h a t 1 th o u g h t y ou r c l o s i n g argum ent o f t h e s e r i e s w as m ost e f f e c t i v e and j u s t w hat I w ish e d m ost t o h a v e s a i d a t t h a t t im e . I renew my c o n g r a t u la t io n s . I t h in k w e h a v e r e a s o n t o h o p e ." R o b ert M ccF igg, J r . , E s q u ir e , r e p r e s e n t in g S ou th C a r o lin a and now Dean o f o n e o f t h e law s c h o o ls i n t h e S o u th , I b e l i e v e i t t o b e W ash in gton and L e e , i n h i s l e t t e r u ^ w u M I B H I B U I W B J b a U 1 b u s U U i b W k ? L Q U C O O U ^ U V I U C L U U X L , X a n t taking the liberty of quoting from letters addressed to me of the reactions by some of the leading figures who partici pated in the segregation cases, which resulted in the now famous Hay, 1954 decision. The late John W. Ddvis, once United States Ambassador to England and presidential nominee, an out standing advocate of. the American Bar, in a letter of December 14, 1953, addressed to me, had this to say: "I want to repeat what I said to you in Washington, that I thought your closing argument of the series was most effective and just what 1 wished most to have said at that time. I renew my congratulations. I think we have reason to hope." Robert HccFigg, Jr., Esquire, representing South Carolina and now Dean of one of the law schools in the South, I believe it to be Washington and Lee, in his letter to me of December 21, 1953, stated: "It was indeed pleasant to work with you in our cases before the Supreme Court and I was sincere in telling you after you had con cluded your argument that I felt like standing up and cheering. As Hr. Davis said to me at that time, we could not have worked out a plan for a stronger and more fitting conclusion in pre senting the matter than the presentation which you made." 425. M rs. Ruth S ch w artz P age 3 J u ly 2 3 f 1965 The l a t e Ju d ge M oore o f Richm ond, V i r g in ia , s e n io r member o f o n e o f t h e le a d in g law fir m s i n t h e S o u th , and on e o f w h ose members w as r e c e n t l y P r e s id e n t o f t h e A m erican Bar A s s o c ia t io n , i n h i s l e t t e r t o me o f Decem ber 1 5 , 1 9 5 3 , s t a t e d : "Your argum ent was a g r e a t h e lp t o a l l o f u s and w as a grand p i e c e o f w ork." Former A tto r n e y G en er a l L in d sa y A llm ond o f V ir g in ia and now Ju d ge o f t h e C ou rt o f C la im s, s t a t e d : • " I t w as a p r i v i l e g e b e in g w it h you i n W ash in gton and h e a r in g t h e mag n i f i c e n t p r e s e n t a t io n o f t h e D ela w a re c a s e b y t h e A tto r n e y G e n e r a l." T h is may g i v e you som e id e a o f t h e r e a c t i o n o f my c o lle a g u e s who w e re known f o r t h e i r e x c e ll e n c e i n a d v o c a c y . I f t h e b r i e f s a r e a v a i l a b l e t o y o u , I am s u r e y o u w i l l b e a b le t o d e c id e f o r y o u r s e l f t h e c o n te n t o f and one o£ whose members was recently President of the American Bar Association, in his letter to me of December 15, 1953, stated: "Your argument was a great help to all of us and was a grand piece of work." Former Attorney General Lindsay Allmond of Virginia and now Judge of the Court of Claims, stated: • "It was a privilege being with you in Washington and hearing the mag nificent presentation of the Delaware case by the Attorney General." This may give you some idea of the re action of my colleagues who were known for their excellence in advocacy. If the briefs are available to you, I am sure you will be able to decide for yourself the content of the legal presentation based upon judicial and academic authority. In my closing argument, I read a lengthy quote from an article written by Fairman and Morrison which appeared in the Stanford University Law Journal supporting the facts presented by the states involved and which I re vealed after I had finished, were the words and concept of Mr. Justice Black. While there are some instances in which the members of the Bench will be persuaded by oral argument about which they have had preconceived notions, I am of the Mr s. Ruth Schwartz Page 4 July 23. 1965 opinion that in the colloquy that takes place between the Court and counsel during the course of oral argument, the members of the Bench seek to justify and support the judgment they have already reached after having read the transcript of the proceedings and considered the briefs of both parties. I hope that this reply is of some assist ance to you and'.! wish you the very best in your academic achievements. Very truly yours. HAY/eb H. ALBERT YOUNG APPENDIX C GLOSSARY OP LEGAL TERMS 428 APPENDIX C GLOSSARY OP LEGAL TERMS AMICUS CURIAE: APPELLANT: APPELLEE: ATTAINDER: BILL OP ATTAINDER: COLOR OP LAW: COURT BELOW: DEMUR: DISTINGUISH: A friend of the court. The party who takes an appeal from one court or jurisdiction to another. Used broadly or nontechnically, the term includes one who sues out of a writ of error. The party in a cause against whom an appeal is taken; that is, the party who has an interest adverse to set ting aside or reversing the judgment. That extinction of civil rights and capacities which takes place whenever a person who has committed treason or felony receives sentence of death for his crime. A legislative act, directed against a designated person, pronouncing him guilty of an alleged crime, (usually treason) without trial or conviction according to the recognized rules of procedure, and passing sentence of death and attainder upon him. The appearance or semblance, without the substance, of legal right. In appellate practice, the "court be low" is the one from which the case is removed. To take an exception to the suffici ency in point of law of a pleading or state of facts alleged. To point out an essential difference; to prove a case cited as applicable, Inapplicable. 429 GRAVAMAN: The material part of a grievance, charge, etc. JUDICIAL NOTICE: MOOT: PER CURIAM: PETITIONER: RESPONDENT: STARE DECISIS: ULTRA VIRES: The act by which a court, in conduct ing a trial, or framing its decision, will, of its own motion, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the con troversy at bar, which, from their nature, are not properly the subject of testimony, or which are univer sally regarded as established by com mon notoriety, e.g., the laws of the state, international law, historical events, the constitution and course of nature, main geographical features, etc. A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights. By the court. A phrase used in the reports to distinguish an opinion of the whole court from an opinion writ ten by any one judge. One who represents a petition to a court, officer, or legislative body. In legal proceedings begun by peti tion, the person against whom action or relief is prayed, or who opposes the prayer of the petition, is called the "respondent." In appellate practice. The party who contends against an appeal. Latin. To abide by, or adhere to, decided cases. The modern technical designation, in the law of corporations, of acts be yond the scope of the powers of a corporation, as defined by its charter or act of incorporation. WRIT OP CERTIORARI: Latin. To be informed of, to be made certain in regard to. Writ of re view or inquiry. APPENDIX D INTRODUCTORY PORTION OF APPELLANTS', APPELLEES', PETITIONERS', AND RESPONDENTS' BRIEFS SUBMITTED TO THE SUPREME COURT, OCTOBER TERM, 1952 H31 v<* r . t j i t i Q - C i 'l . j / t I O lftc ? - S upreim C ? U :!. uftf 3i! 2 3 1 3 52 O l iv e r B row n, M b s. R iohabd L aw ton, M bs. S a d ib E m m a n u e l, et al., Appellants, ▼s. B o a b d o r E d u c a tio n o r T o p e k a , S h a w n b b C o u n ty , K a n s a s , et a l. A p p e a l t o o k t h b U n it e d S ta tes D ist r ic t C o u b t fo b t h e D ist b ic t o r K ansas BRIEF FOR APPELLANTS ( / ^ R o b e r t L. O a r t e r ^ u * < • T h u r o o o d M a r s h a l l , (n s \ ~ # / ySroTTBwooD W. R o b in s o n , H I, f % . jp v C h a r l e s S. Soon, a^ tA • * * k a . r v Counsel for Appellants. *110“W illia m T. C o le m a n , J r., ✓ ^ 0 * " J ack G r een ber g, / < * .* < ^ ' • - y , i/'' G eobob E . £f. H ayes, * > k / G eorge M . J o h n s o n , / \A W il li a m R . M in o , J b ., / , ^ </ T C o n s ta n c e B a k e b M o tle y , / . e -j U i / J a m e s M . N a b b it, J r . , A y W */ F r a n k D. R e e v e s, iff#*J o h n Soon, ^ k t - J aok B . .W e in s t e in , of Counsel. Iff TUB £ i t p r * m * ( G r n i r t o f t ! f * l l u i t r i l & t o t p a October Tana, 1982 No. 8 o ■■ ■ ■ O u v n B rown, M rs. R ichard L awton, M rs. S a d is E m m a n u ri* et a l . , Appellant*, v s. B o a rd or E d u c a tio n op T o p rk a , S h a w n b b C o u n ty , K a n sa s, et a l . Appial prom t b r U n i t r d S ta tp ji D i s t r i c t C o u r t n o r thb D ir tm c t o r K a n s a s ■ O '■ BRIEF FOR APPELLANTS Opinion Below Tbs opinion of tlio statutory thrco-judge-District Court tor tbo District of Kansas (R. 238-244) is reportod at 98 F. Sapp. 797. Jurisdiction Tbo judgment of tlio court below was entered on August 3 ,1951 (It. 247). On October 1, 1951, appellants filed a petition for appeal (It. 248), and an order allowing tbo appeal was entered (It. 250). Probable jurisdiction was aoted on June 9,1952 (It. 254). Jurisdiction of this Court nets on Title 28, United 8tatea Code, M 1253 and 2201(b). 2 / Questions Presented 1. Whether the State of Kansas has power to enforce a state statute pursuant to which racially segregated public elementary schools are maintained. 2. Whether the finding of the court below—that racial segregation in public elementary schools has the detri mental effect of retarding the mental and educational devel opment of colored children and connotes governmental ac ceptance of the conception of racial inferiority—compels the conclusion that appellants here are deprived of their rights to share equally in educational opportunities in vio lation of the equal protection clause of the Fourteenth Amendment. T he Law of Kansas and the Statute Involved All boards of education, superintendents of schools and school districts in the state are prohibited from using race as a factor in affording educational opportunities in the public schools within their respective jurisdictions unless expressly empowered to do so by statute. K nox v. Board of Education, 54 K. 152, 25 P. 616 (1891); Cartwright v. Board of Education, 73 K. 32, 84 P. 382 (1906); Rowles v. Board of Education, 76 K. 361, 91 P. 88 (1907); Wool- ridge, et al. v. Board of Education, 98 K. 397, 157 P. 1184 (1916); Thurman-Watts v. Board of Education, 115 K. 328, 222 P. 123 (1924); Webb v. School D istrict, 167 K. 395, 206 P. 2d 1066 (1949). Segregated elementary schools in cities of the first class are maintained solely pursuant to authority of Chapter 72- 1724 of the General Statutes of Kansas, 1949, which reads as follows: “ Powers of board; separate schools for white and colored children; manual training. The board of education shall have-power to elect their own officers, make all necessary rules for the government of the schools of such city under its charge and con trol and of the board, subject to the provisions of this act and the laws of this state; to organize and , maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kans.; no discrimination on account of color shall be made in high schools except as pro vided herein; to exercise the sole control over the public schools and school property of such city.; and shall have the power to establish a high school or high schools in connection with manual training and instruction or otherwise, and to maintain the sam e' as a part of the public-school system of said city. (G. S. 1868, Ch. 18, §75; L. 1879, Ch. 81, § 1; L. 1905, Ch. 414, §1; Feb. 28; R. S. 1923, § 72-1724.) ” Statement o f the Case Appellants are of Negro origin and are citizens of the United States and of the State of Kansas (R. 3-4). Infant appellants are children eligible to attend and are now attending elementary schools in Topeka, Kansas, a city of the first class within the meaning of Chapter 72-1724, General Statutes of Kansas, 1949, hereinafter referred to as the statute. Adult appellants are parents of minor appellants and are required by law to send their respective children to public schools designated by appellees (R. 3-4). Appellees are state officers empowered by state law to maintain and operate the public schools of Topeka, Kansas. For elementary school purposes, the City of Topeka is divided into 18 geographical divisions designated as terri tories (R. 24). In each of these territories one elemen tary school services white children exclusively (R. 24). In addition, four schools are maintained for the use of Negro children exclusively (R. 11,12). These racial distinctions are enforced pursuant to the statute. In accordance with the terms of the statute there is no segregation of Negro and white children in junior and senior high schools (R. 12). On March 22, 1951, appellants instituted the instant action seeking to restrain the enforcement, operation and execution of the statute on the ground that it deprived them of equal educational opportunities within the meaning of the Fourteenth Amendment (R. 2-7). In their answer, appellees admitted that they acted pursuant to the statute, and that infant appellants were not eligible to attend any of the 18 white elementary schools solely because of their race and color (R. 12). The Attorney General of the State of Kansas filed a separate answer for the specific purpose of defending the constitutional validity of the statute in question (R. 14). Thereupon, the court below was convened in accordance with Title 28, United States Code, § 2284. On June 25-26, a trial on the merits took place (R. 63 et seq.). On August 3, 1951, the court below filed its opinion (R. 238-244), its findings of fact (R. 244-246), and conclusions of law (R. 246-247), and entered a final judgment and decree in appellees' favor denying the injunctive relief sought (R 247). Specifications of Error The District Court erred: 1. In refusing to grant appellants' application for a permanent injunction to restrain appellees from acting pursuant to the statute under which they are maintaining separate public elementary schools for Negro children solely because of their race and color. 2. In refusing to hold that the State of Kansas is with out authority to promulgate the statute because it enforces a classification based upon race and color which is violative of the Constitution of the United States. 3. In refusing to enter judgment in favor of appellants after finding that enforced attendance at racially segregated elementary schools was detrimental and deprived them of educational opportunities equal to those available to white children. Summary o f Argument The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon raoe and color alone. The State of Kansas has no power there under to use race as a factor in affording educational oppor tunities to its citizens. Racial segregation in public schools reduces the bene fits of public education to one group solely on the basis, of race and color and is a constitutionally proscribed distinc tion. Even assuming that the segregated schools attended by appellants are not inferior to other elementary schools in Topeka with respect to physical facilities, instruction and courses of study, unconstitutional inequality inheres in the retardation of intellectual development and distor tion of personality which Negro children suffer as a result of enforced isolation in school from the general public school population. Such injury and inequality are estab lished as facts on this appeal by the uncontested findings of the District Court. £he District Court reasoned that it could not reotify the inequality that it had found because of this Court's decisions in P lessy v. Ferguson, 163 U. S. 537 and Gong Lum v. Rice, 275 U. S. 78. This Court has already decided that the Plessy case is not in point. Reliance upon Gong Lum v. Rice is mistaken since the basic assumption of that case is the existence of equality while no such assumption can bo made here in the face of the established facts. Moreover, more recent decisions of this Court, most notably Sweatt v. Painter, 339 U. S. 629 and McLaurin v. Board of Regents, 339 U. S. 637, clearly show that such hurtful consequences of segregated schools as appear here con stitute a denial of equal educational opportunities in viola* tion of the Fourteenth Amendment. Therefore, the court below erred in denying the relief prayed by appellants. N° - / / i G ftiuo-S uprerM Court, ll/S'. D E C C 1952 ‘ I I ' V ' • 3n il}z 0 iq x r m £ (& xm xt ' .; • OCTOBER TERM, 1952 .J* f c s OLIVER BROWN, MRS. RICHARD LAWTON, MRS. ■ /■ \ SADIE EMMANUEL, et a l , Appellants, ' J vs. BOARD O F EDUCATION O F TOPEKA, SHAWNEE COUNTY, KANSAS, e t al., Appellees. v ; Appeal from the United States District Court for the District of Kansas BRIEF FOR APPELLEES .y v - ^ ..H a r o ld R. F a t z e h , Attorney General, (J ) P a u l E. W ils o n , Asst. Attorney General, Counsel for die State of Kansas, v * State House, Topeka, Kansas, ' / " U L a . \ ^ , P e t e r F. C a l d w e l l , Counsel for th e Board of Education of Topeka, Kansas. 812 Capitol Federal Bldg., Topeka, Kansas. . . M4UT. '•ij-tritiH J: r ■ ■ " h C > > y . • ~M0 •I I (© I n tip 0a$E «in* (Eourt , of tip &tat*o 1. OCTOBER TERM, 1952 No. 8 OLIVER BROWN, MRS. RICHARD LAWTON; MRS. SADIE EMMANUEL, et al., Appellants, vs. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, et al., Appellees. Appeal from the United States District Court for the District of Kansas I BRIEF FOR APPELLEES I |, l I " r ' ' | PRELIMINARY STATEMENT P'TI "f | ' The issue presented by this case is whether the Four-, ., teenth Amendment to the Constitution of the United States is violated by a statute which permits boards of education i in designated cities to maintain separate elementary school facilities for the education of white and colored children. ' T " * * i At the outset; counsel for the appellees desire to state ' ' .« ; % , , <8> , i 1 . . , « " ll that by appearing herein they do not propose to advocate the policy of segregation of any racial group within the public school system. We contend only that policy de terminations are matters within the exclusive proviuce of the legislature. We do not express an opinion as to whether the practice of having separate schools of equal facility for the white and colored races is economically expedient or sociologically desirable, or whether it is. consistent with sound ethical or religious theory. We do not understand that these extra-legal questions are now before the Court. The only proposition that we desire to urge is that the Kan sas statute which permits racial segregation in elementary public schools in certain cities of the state does not violate the Fourteenth Amendment to the Constitution of the United States as that amendment has been interpreted and applied by this Court. n OPINION BELOW The opinion of the three-judge District Court below: (R-238-244) is reported at 98 Fed. Supp. 797. \ i - ; ■ » JURISDICTION The judgment ol: the court below was entered on August 3, 1951 (R. 247). On October 1, 1951, appellants filed a petition for appeal (R. 248), and an order allowing the appeal was entered (R. 251)*. Probable jurisdiction was noted on June 9,1952 (R. 254). Jurisdiction of this Court rests on Title 28 U. S. C. Sec. 1253 and 2201 (b ). IV QUESTIONS PRESENTED 1. Does a statute which permits but does not require i cities of more than 15,000 population to maintain separate school facilities for colored and white students, violate the Fourteenth Amendment to the Constitution of die United States in a situation where a court has specifically found that there is no discrimination or distinction in physical facilities, educational qualifications of teachers, curricula or transportation facilities? 2. Is a general finding of the trial court that segrega tion is detrimental to colored children and deprives them of some benefits they i would receive in a racial integrated school sufficient to entitle the individual ^ colored plain tiffs. to an injunction- prohibiting die maintenance of an ekisting'sfystem of segregated schools, and to require re versal oEa judgmentHenying such relief? THE STATUTE The statute under attack in the present litigation is sec tion 72-1724, General Statutes of Kansas of 1949, which is quoted hereafter: “Powers of board; separate schools for w h ite and colored children; manual training. The board of education shall have power to elect their own of ficers, make all necessary rules for the government of the schools of such city under its charge and con trol and of the board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, including the high schools in Kansas City, Kansas; no discrimination on account of color shall be made in high schools, except as provided herein; to exercise the sole control over the public schools and school property of such city; and shall have the power to establish a high school or high schools in connection with manual training and instruction or otherwise, and to maintain the same as a part of the public school system of said city.” VI 1 STATEMENT OF TH E CASE The appellants here, who are plaintiffs below, are Negro citizens of the United States and the State of Kansas, who —resid&in Topeka, Shawnee County, -Kansas. The_infant plaintiffs are children of common school age. The defend ants below and appellees herein arc the duly constituted governing body and certain administrative officers of the public school system of Topeka, Kansas. The State of Kansas has intervened in the District Court to defend the constitutionality of the state statute under attack. Acting pursuant to the authority conferred by C. S. 1949, 72-1724, supra, the appellee, Board of Education, many years ago created within the city of Topeka, which is one school district, eighteen school areas, and now maintains in each of said areas a kindergarten and elementary school for white children only. (R. 24.) At the same time the present Board of Education of Topeka and prior boards of education, acting under same statutory authority, have established and operated in said city four elementary schools in the same grades for Negro children. Negro children may attend any one of said elementary schools that they or their parents may select. It was stipulated in the Court below that the Negro schools are located in neighborhoods in which the population is predominantly Negro. (R. 31.) The stipulation also indicates that at the time the action was brought, the enrollment in^the * • .» . • • • j eighteen white schools was 6,019, as compared to 658 students enrolled in the four Negro schools. (R. 37.)" ~The administration of the entire Topeka school system is under the Board of Education, and the same adminis trative regulations govern both the white ar.d Negro schools. The Court found specifically that there is no material difference in the physical facilities in colored and white schools; that the educational qualifications of the teachers and the quality of instruction in the colored schools are not inferior to, but are comparable with those in the white schools; and that the courses of study followed in the two groups of schools are identical, being that pre scribed by state law. (R. 245.) Also, it was found that colored students are furnished transportation to the segre gated schools without cost to the children or their parents. No such transportation is furnished to the white children in the segregated schools. (R. 246.) VII SUMMARY OF ARGUMENT 1. The Kansas statute which permits cities of the first class to maintain separate grade school facilities for colored and white students does not per se violate the Fourteenth Amendment to the Constitution of the United States. ; The Court below found facilities provided for Negro children in the city of Topeka to be substantially equal to those furnished to white children. The appellants, in their specifications of error and in their brief, do not object to that finding. Under those circumstances and under au thority of the decisions of the Supreme Court of the United States, the inferior federal courts, and the courts of last resort in numerous state jurisdictions, and particularly the decisions of the Kansas Supreme Court, the appellants herein are not denied equal protection of the laws by virtue of their being required to attend schools separate from those which white children are required to attend. The decision of the court below should be affirmed. 2. Irrespective of the question of the constitutionality of the Kansas statute, the trial, court’ s findings of fact are insufficient to establish appellants* right to injunctive relief and to require reversal of the judgment below. The only finding of fact relied upon by appellants is Finding of Fact No. VIII. That finding is couched in general language and in effect simply shows that segregation in the public schools has a detrimental effect upon colored children and a tend ency to retain or retard their educational and mental de velopment and to deprive them of some of the benefits they would receive in a racial integrated school system. The finding does not specifically show that any of the ap- pellants Have actually and personally suffered.hy reasbn of segregation in the public schools of Topeka nor that the mental "development of any of the appellants in this case ^has been retarded^and die finding doesjiot eves purport ~ to shew discrimination against the appellants and in favor of any other students in the Topeka school system. It no where discusses the effect of segregation upon children of any race other than colored children. Therefore, the Dis trict Court’s Finding of Fact No. VIII fails to show either that the appellants have suffered any personal harm, or that they are being deprived of benefits or subjected to detriments which do not equally apply to other students in the Topeka school system. Thus, the appellants have failed to secure findings of fact sufficient to entitle them to injunc tive relief or to a reversal of the judgment below. , v ,. a /2/ >?. / ■ q - . i r z j. ----------------- .r\rT.<; . / . / ....., / ' ____________ ■ 7 ^ : ■ .C T i - . ■. u- ^ ^ t5L ' /-%•••■•/ f f ' j (£ •ff/* /7.A ^tA.C.V* % ?- in/ - i / V '" , -/.« O ctober Term , 1952. y ^/r - /• ' • </ i— * „ . . ^1n/*®e~ w ;V/ 3 *-7 t f . 5, {f.0 tmjy&fSrfafi:iuits?5 ^taitfeg^ • H a r r y B bioob, J b ., e t a t., vs. Appellants, B . W . E l l io t t, Chairman, J. 1). C ahson, et al., M e m b er s o f B oard o f T r u st e es o f S c h o o l D is t r ic t No. 22, Clarendon County, S. C., et at. 1 Appellees. A p p e a l fr o m t h e U n it e d S tates D ist r ic t C ourt fo r t h b E astern D ist r ic t o f S o u t h C a rolina BRIEF FOR APPELLANTS & j s r ^ i E C . B oulw are, < 5 rty j. C a r t e r , /, / ' * 1 * ( £ < L d ~ - / - I a r o l d R , ✓Robert L. ( /.T h u r g o o d M a r s h a l l , / ^ £ , <A J/'SpOTTSWOOD W . B0BIN80N, I I I , •/>•*; <f Counsel for Appellants. "W illiam T . C o le m a n , J r . , / G e o r g e E. C. H a y e s , 0 ^ ^ / G e o r g e M . J o h n s o n , /, ^ i> ^ W i l l i a m B . M in q , J r . , / , Ay / C o n s t a n c e B a k e r M o tle y , a /T a m e s M . N a b r it , J r . , / , 'Zy a / ✓ P r a n k D. B e e v e s, )t *, Lf — L e o n a rd W . S c h r o r t e r , -/lA - J a ck B . W e in s t e in , . of Counsel. 449 IK THE © uprm ? (Snurt of tlje United S tates October Term, 1952 No. 101 — o ■■■ ■ H a r r y B rig g s , J r . , et al., Appellants, vs. R. W. E l l i o t t , Chairman, J. D. C a rs o n , et al., Mbmbbrs o r B o a r d o r T r u s t e e s o r S c h o o l D i s t r i c t N o . 22, Clarendon County, S. C., et al. Appellees. A p p e a l tro m t h e U n it e d S t a tes D ist r ic t C o u r t r o n t h e E a ster n D ist r ic t o r S o u t h C arolina — ■ o ■ ' -. BRIEF FOR APPELLANTS Opinions The majority and dissenting opinions filed at the con clusion of the first hearing are reported in 98 F. Supp. 529-548 and appear in the record (R. 176-209). The opinion filed at the conclusion of the second hearing is reported iii 103 F. Supp. 920-923 and appears in the record (R. 801-306). jurisdiction The judgment of the statutory three-judge District Court was entered on March 13,1952 (R. 306). A petition for appeal was presented to the district court and allowed on May 10,1952 (R. 309). Probable jurisdiction was noted by this Court on June 9,1952 (R. 316). r \ 2 This is an appeal from an order denying an injunction in a civil action required by an act of Congress to be heard and determined by a district court of three judges. The jurisdiction of the Supreme Court to review this decision by direct appeal is conferred by Title 28, United States Code, Sections 1253 and 2101(b). S ta te m e n t o f th e C a se The Constitutional Issue Involved The complaint in this case was filed by Negro children of public school age residing in School District No. 22, Clarendon County, South Carolina, and their respective parents and guardians, against the public school officials of said county and school district who, as officers of the State, maintain, operate and control the public schools for children residing in said district. It was alleged that appellees maintained certain public schools for the exclusive use of white children and certain other public schools for Negro children; that the schools for Negro children were in all respects inferior to the schools for white children; that the appellees excluded the infant appellants from the white schools pursuant to Article XI, section 7, of the Constitu- tion of South Carolina, and section 5377 of the Code of Laws of South Carolina of 1942, which require the segre- gation of the races in public schools; and that it was impossible for the infant appellants to obtain a public school education equal to that afforded and available to white children as long as the appellees enforced these laws. The complaint sought a judgment declaring the inva lidity of these laws as a denial of the equal protection of the laws secured by the Fourteenth Amendment of the Constitution of the United States, and an injunction re straining the appellees from enforcing them and from making any distinctions based upon race or color in 3 the educational opportunities, facilities and advantages afforded public school children residing in said district. Appellees in their answer joined issue on this question and admitted that in obedience to the constitutional and statutory mandates separate schools were provided for the children of the white and colored races; and that no cVild of either race was permitted to attend a school provided for children of the other race. In the Third Defense of Appellees * Answer they alleged that the above constitu tional and statutory provisions were a valid exercise of the State’ s legislative power. The jurisdiction of a three-judge District Court was invoked pursuant to Title 28, United States Code, Sections 2281, 2284, for the purpose of determining the validity of the provisions of the Constitution and laws of South Carolina requiring segregation of the races in publid schools. This issue was clearly raised, and was decided by upholding the validity of these provisions and by refusing to enjoin their enforcement. • First Hearing At the opening of the trial (before a three-judge Dis trict Court as required by Title 28, United States Code, sections 2281 and 2284) appellees admitted upon the reoord that “ the educational facilities, equipment, curricula and opportunities afforded in School District No. 22 for colored pupils * * * are not substantially equal to those afforded in the District for white pupils.” The appellees also stated that they did “ not oppose an order finding that inequalities in respect to buildings, equipment, facilities, curricula, and other aspects of the schools provided for the white and colored children of School District No. 22, in Clarendon County now exist, and enjoining any discrimination in respect thereto.” These admissions were made part of the record by heing filed as an amendment to the answer. The only issue remaining to be tried was the question of the constitution ality of the laws requiring segregation of the races in publio education as applied to the appellants. During the trial the appellants produced testimony showing the extent of the physical inequality in the segre gated schools of Clarendon County and especially School District No. 22. Over the objection of the appellants1 the appellees introduced testimony that a three per cent sales tax and authorization of a $75,000,000 bond issne for improvement of schools had recently been adopted by the State of South Carolina, and that the State Educational Finance Commission had just been organized to supervise the distribution of these funds and had not even set up rules or procedures.* About a week before the trial Clarendon County had “ inquired” about making an ap plication for funds. The testimony of nine expert witnesses was introduced by appellants; two experts in the field of education who offered a comparison of the public schools; one expert in educational psychology, three experts in the respective fields of child and social psychology, one expert in political science, one expert in school administration, and one expert in the field of anthropology. The uncontroverted testimony of these witnesses demon strated that the Negro schools in question were inferior in every material aspect to the white schools, and that similarly the caliber of education offered to Negro pupils was inferior to that offered to white pupils. The testimony of these witnesses also established the fact that the segrega tion of Negro pupils in these schools would in and of itself 1 On the grounds that equality within the meaning of the Four* teenth Amendment did not include contemplated future action (R. 108). * It was admitted that although the school population of South Carolina was approximately forty to forty-five per cent Negro there were no Negroes on the Commission and no Negro employees of the Commission (R. 114). preclude them from receiving educational benefits equal to those offered to white pupils or pupils in a non-segregated school. These witnesses not only established their qualifica tions in their respective fields but also supported their conclusions by objective and scientific authorities. . One of the experts in the field of child and social psychology testified that be had made special studies of the recognized methods of testing the effects of racial prejudice and segregation on children. He used a test of this type on Negro school children including the infant appellants in School District No. 22 a few days before the trial. From his general experience in this field and the results of his tests he testified: “ A. The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities; that the signs of instability in their personalities are clear, and I think that every psychologist would accept and interpret.these signs, as such. “ Q. Is that the type of injury which in your opinion would be enduring or lastingt A. I think it is the kind of injury which would be as enduring or lasting as the situation endured, changing only in its form and in the way it manifests itself" (B. 89-90). These witnesses testified as to the unreasonableness of segregation in public education and the lack of any scientifio basis for such segregation and exclusion. They testified that all scientists agreed that there are no fundamental biological differences between white and Negro school pupils which would justify segregation. An expert in anthropology testified: c 6 “ The conclusion, then to which I come, is differ-* ences in intellectual capacity or inability to learn have not been shown to exist as between Negroes and whites, and further, that the results make it very probable that if such differences are later shown to exist, they will not prove to be significant for any educational policy or practice" (R. 161). Another expert witness testified: “ It is my opinion that except in rare cases, a child who has for 10 or 12 years lived in a community. where legal segregation is practiced, furthermore, in a community where other beliefs and attitudes sup port racial discrimination, it is my belief that such a child will probably never recover from whatever harmful effect racial prejudice and discrimination can wreck” (R. 134). The appellees did not produce a single expert to contra dict these witnesses. There were only two witnesses for the appellees. The Superintendent of Schools for District No. 22 testified as to the reasons for the physical inequalities between the white and Negro schools. The Director of the Educational Finance Commission testified as to the pro posed operation of the Commission and the possibility of the appellees obtaining funds to improve public schools. The latter witness testified that from his experience as a school administrator in Sumter and Columbia, South Carolina, it would be “ unwise” to remove segregation in public schools in South Carolina. On cross-examination, he admitted he had not made any formal study of racial tensions but based his conclusion on the fact that he had “ observed conditions and people in South Carolina” all of his life. He also admitted that his conclusion was based in part on the fact that all of his life he had believed in segregation of the races. 7 The judgment on this hearing, one judge dissenting stated that neither the cons?iiutionni nor statutory pro visions requiring segregation in public schools were in violation of the Fourteenth Amendment and that appellants were not entitled to an injunction against the enforcement of these provisions by these appellees. The judgment also stated that the educational facilities offered infant, appel lants were unequal to those offered to white pupils, and ordered the appellees “ to furnish to appellants and other Negro pupils of said district educational facilities, equip ment, curricula and opportunities equal to those furnished white pupils.” First Appeal An appeal from this judgment was allowed on July 20, 1951 and the appellees filed a motion to dismiss or affirm. On December 21, 1951 appellees filed their report in the District Court showing progress being made toward equalization of physical facilities in the public schools of Clarendon County. A copy of this report was forwarded to this Court. On January 28, 1952, this Court vacated the judgment of the District Court and remanded the case to that court in order to obtain the views of the trial court upon the additional facts in the record and to give the District Court an opportunity to take whatever action it might deem appropriate in light of the report (342 U. S. 350). Mr. Justice Black and Mr. Justice Douglas dissented on the ground that the additional facts in the report were “ wholly irrelevant to the constitutional questions presented by the appeal to this court” (342 U. S. 350). Second Hearing As soon as the mandate reached the District Court, appellants filed a Motion for Judgment requesting an early hearing and a final judgment granting the relief as prayed for in the complaint. Among the reasons for this motion appellants alleged: “ It is, therefore, clear that plaintiff's rights guaranteed by the Fourteenth Amendment are being violated and remain unprotected. The injury is irreparable. The only available relief is by injunc tion against the continued denial of their right to equality which is brought about by compulsory racial segregation required by the Constitution and laws of South Carolina. (So. Car. Const. Art. XI, Sec. 7: S. C. Code, 1942, Sec. 5377.) “ Plaintiffs can get no immediate relief except by the issuance of a final judgment of this Court enjoining the enforcement of the policy of racial segregation by defendants which excludes Negro pupils from the only schools where they can obtain an education equal to that offered white children. “ Plaintiffs can get no permanent relief unless this Court declares that the provisions of the Con stitution and laws of South Carolina requiring racial segregation in public schools are unconstitutional insofar as they are enforced by the defendants herein to exclude Negro pupils from the only schools where they can obtain an education equal to that offered white children" (R. 258). It appearing that School District No. 22 of Clarendon County had been combined with six other school districts into a single school district the district court made the appellees parties in their present capacities as officials of School District No. 1 (R. 262-263 ; 306). The second hearing was held on March 3,1952, at which time the appellees filed an additional report showing progress since the December report. The appellants did not question the accuracy of these statements of physical changes in the making. At the second hearing the District Court ruled that the question of the decision on -the validity of segregation statutes was closed by the original judgment and could not be argued at that hearing. The District Court also refused to rule that, aside from the question of the validity of these statutes, the admitted lack of equality of facilities entitled appellants to an injunction restraining appellees from ex cluding them from an opportunity to share the superior schools and the inferior schools on an equal basis without regard to race and color. On March 13, 1952, the District Court filed an opinion- and a decree again finding that the educational facilities for Negroes were not substantially equal to those afforded white pupils. Despite this finding the District Court held that “ plaintiffs are not entitled to an injunction forbidding segregation in the public schools of School District No. 1” . .Errors R elied Upon The District Court erred: I In refusing to enjoin the enforcement of the laws of South Carolina requiring racial segregation in the public schools of Clarendon County on the ground that these laws violate rights secured under the equal protection clause of the Fourteenth Amendment. II In refusing to grant to appellants immediate and effec tive relief against the unconstitutional practice of excluding appellants from an opportunity to share the public school facilities of Clarendon County on an equal basis with other students without regard to race or color. III In predicating its decision on the doctrine of Plsssy ▼ . Ferguson and in disregarding the rationale of Sufeatt v. Painter and MeLaurin v. Board of Regents, o 1 0 Questions Presented • r d a Whether legally enforced racial segregation in the public schools of South Carolina denies the Negro chil dren of the state that equality of educational opportunity and benefit required under the equal protection clause of the Fourteenth Amendment. n Whether the compulsory segregation laws of South Carolina infect its public schools with that racism which this Court has repeatedly declared unconstitutional in other areas of governmental action. m Whether the decision in Plessy v. Ferguson or the deci sion in Gong hum v. Rice are applicable to this case. TV Whether the equalization decree in this case grants effective relief and can be effectively enforced without in volving the District Court in supervising the dally opera tion of the public schools. Constitution and Statute Involved Article XI, section 7 of the Constitution of South Carolina provides: * ' * 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 pro vided for children of the other race.'* Section 5377 of the Code of Laws of South Carolina is as follows: " I t shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race.’* **59 1 1 Summary of A rgum ent . . Although the decisions in the case of Sweatt v. Painter and McLaurin v. Oklahoma Slate Regents involved state afforded education on the graduate and professional level, the underlying principles of these decisions are applicable and controlling in this case involving public education on the elementary and high school level. Applying these principles, the basic question in the in stant case is: “ To what extent does the equal protection clause of the Fourteenth Amendment limit the power of a 6tate to distinguish between students of different races" in' the educational benefits afforded on the elementary and high school level of public education. Further, the equality, or inequality of physical facilities are not decisive of this question. Consideration must he given not only to the measurable physical facilities hut to all of the factors which have educational significance. Finally, if it appears from the record, as it does in this case, that segregation is a major handicap to the segregated pupils, then the state laws requiring this segregation violate the equal protec tion clause of the Fourteenth Amendment. The laws here challenged are likewise unconstitutional under a uniform line of decisions of this Court striking down governmental classifications based solely on race or ancestry. The laws of South Carolina segregate Negro public school pupils from other public school pupils solely because of race or color. Such a classification based on race alone cannot be justified as a classification based upon any real difference which has pertinence to a valid legislative objective. The District Court was in error in rejecting the basic principles set forth in the Sweatt and McLaurin decisions ^ as being inapplicable to the instant case despite the uncon- ' troverted expert testimony showing the injury to the seg regated Negro children on the public elementary and high school level. Neither the case of Plessy v. Ferguson nor the case of Gong Lum v. Rice relied on by the majority of the District Court are decisive of the issues in this case. The final order of the District Court in upholding the segre gation laws of the State of South Carolina cannot bring about the equality of educational benefits required. Offico* Supremo Court, 0/s. i n IX * 23 j D OCT 6- \$5^ r • CH.UU IIVCSE C V r’f'Y 46 J Suprm ? (Unurt nf tip lluitoi Istfafrja OCTOBER TERM, 1952 Nq^LGr"'^ HARRY BRIGGS, JR., et al., Appellants, vs. R. W. ELLIOTT, CHAIRMAN, J. D. CARSON, et al., \ MEMBERS OF BOARD OF TRUSTEES OF /■ SCHOOL DISTRICT NO. 22, CLARENDON ■ COUNTY, S. C , et a l, Appellees. " BRIEF FOR APPELLEES ^ R obert M cC. F icg, J r., i/ S. E . R ogers, Counsel for Appellees. .........—\tif 1 t ■ r 0 ^ ¥' f / ' - T. C. C a l l is o n , Attorney General of South Carolina. rs * ( J x J o h n W . D a v i s , Ow u * M * . t ( / W i l l i a m R. M e a g h e r , ® ^ O f Counsel. Dated: October 3, 1952. §upmue fflnurt of % lu itfit StoSea , OCTOBER TERM, 19S2 , | • ' If'' . ‘v ■». fi •*: • ; No. 101 ./ ___: ________ I - - ! ' • v l - H arry B r ig g s, J r., et cU., A . - . Appellants; I ’ r • * * 1 'w * f . • R . W . E l l io t t , C h a ir m a n , J . D . C a r so n, > . • • et al., M e m b e r s o f B oard o f T r u s t e e s ( o f S c h o o l D is t r ic t N o. 2 2 , C l a r e n d o n V C o u n t y , S. C., et al., 1 Appellees. I I BRIEF FOR APPELLEES This is an appeal by plaintiffs from a final decree hied < March 13, 1952 in the United States District Court for the Eastern District of South Carolina after hearings, before ( a district court of three judges. This decree adjudged inf _ material part: (a) that neither Article II, section 7 of thie II Constitution of South Carolina, nor section 5377 of the Code of South Carolina requiring separate schools foJ’ children of the white and colored races are of themselves violative of the provisions of the Fourteenth Amendment to r the Constitution of the United States and. plaintiffs are not entitled to an injunction forbidding segregation in the public schools of School District No. 1, Clarendoq, County, ( South Carolina; (b) that the educational facilities,.equip*, ment, and opportunities afforded in School District Nd«'l ‘ for colored pupils are not substantially equal to those af- forded for white pupils, and that this inequality is violative of the equal protection clause of the Fourteenth Amend ment; and (c) that the appcllee-school officials proceed at once to furnish to plaintiffs and other Negro pupils of the District educational facilities, equipment, curricula and op portunities equal to those furnished white pupils (R. 306-7). Opinions Below The opinions below (R. 176-209, 301-5) are reported in 98 F. Supp. 529 and 103 F. Supp. 920. Grounds of Jurisdiction The jurisdiction of this Court is invoked under 28 U. S. C. § 1253 (June 25, 1948, c. 646, 62 Stat. 928). On May 9,1952, the district court allowed appeal to this Court from the final decree of March 13, 1952 (R. 309-10). The grounds of jurisdiction are stated in the Statement as to Jurisdiction filed in the district court (R. 312) and docketed herein, October Term, 1951, No. 273. Statement of the Case This is a class suit brought by certain Negro minors and their parents on behalf of themselves and all others similar!^ situated, against'the Board of Trustees of School District No. 22 of Clarendon County,* South Carolina, and •On October 16, 1951 School District No. 22 was consolidated with six other school districts of Clarendon County into a single school district known as School District No. 1 (R. 262). Accord ingly, the# decree of the district court directed that the authorities of School District No. 1 be made parties to this suit and be bound by all orders and decrees entered herein (R. 306). other school authorities. Separate primary and secondary schools in that d.istrict arc provided for children of the white and colored races as required by the constitution of South Carolina and consequent statutes. These schools in the present District No. 1 serve 2,799 Negro and 295 white children within the district (R. 265). The grounds of complaint are: First, that the constitu tion and statutes of South Carolina in their requirement of separate schools for the two races violate the equal pro tection clause of the Fourteenth Amendment of the Con stitution of the United States. Second, that in carrying out the provisions of the constitution and statutes of the State equal educational facilities are not provided for colored and for white children. A declaratory judgment and injunc tive relief were sought (R. 2-11). A three-judge court was assembled as required by Title 28 U. S. C. §§ 2281 and 2284. At the hearing the defendants withdrew their previous denial of inequality, and amended their answer to admit that the school facilities provided for Negro students “are not substantially equal to those afforded in the District for white pupils”. They announced their in tention to proceed forthwith to remove these inequalities in accordance with recent measures adopted by the legislature of South Carolina. They asked only that a reasonable time be fixed by the court in which they might accomplish th is.. result (R. 30-35). : After full hearing, the district court (W aring, D . / . dis- . senting) entered its decree on June 23, 1951 in which it . found: (1) T hat the challenged constitutional and statutory* provisions were not of themselves violative of the Fourteenth Amendment (2) That the educational facilities afforded by appellees for Negro pupils were not equal to those pro vided for white children. The district court did not enjoin enforcement of the requirement that Negro and white pupils attend separate schools, but did order appellees to proceed at once to furnish educational facilities for Negroes equal to those furnished •white pupils; and in the decree, it ordered that appellees report to the court within six months as to any action taken by them to carry out the court's order (R. 209-10). 98 F. . Supp. 529. From the decree filed June 23, 1951, plaintiffs ap pealed to this Court. Pending this appeal and before juris diction had been noted, defendants filed in the court below within the allotted time their report of progress (R. 211-54). Because the case was then on appeal, the report was forwarded by the district court to this Court (R. 255) which thereupon (Justices Black and Douglas dissenting) vacated the decree of the district court and remanded the case to it in order that it might consider the report and be afforded the opportunity to take whatever action it might deem appropriate in the light of the additional facts so brought to its attention. 342 U. S. 350. The case as remanded was called for hearing on March 3d last (R. 261). Appellees filed a supplementary report bringing down, to date further steps taken in c jmpliance ■since itheir earlier report (R. 263-70). Of these reports, which will be rater referred to at more length in this brief, ^ the district court said _ ' ' , _ .. “{They] show beyond question that<i£fendants ' have proceeded promptly and in good faith to com ply with, the court's decree.* * *” (R. 302). 5 Accordingly, on March 13, 1952, the court entered the decree now appealed from, denying an injunction abolishing segregation and granting one requiring appellees to equal ize the educational facilities and opportunities provided white and colored children in School District No. 1, Claren don County (R. 306-7). 103 F. Supp. 920. Summary of Argument The inequalities in educational facilities afforded white and colored children in the public grade schools of Claren don County, School District No. 1, admittedly existing when the district court entered its first decree on June 23, 1951, have been effectually removed as a factor for con sideration on the present appeal, because, as the district court unanimously found on March 13, 1952 after further hearings pursuant to this Court’s mandate: “There can be no doubt that as a result of the pro gram in which defendants are engaged the educa tional facilities and opportunities afforded Negroes within the district will, by the beginning of the next school year beginning in September 1952, be made equal to those afforded white persons. * * *” (R. 304) This fact, about which there is no dispute, renders moot the contention made by appellants on June -23, 1951 and again on March 13,1952, that because the educational facil ities afforded, the white and colored within the district were not at that moment equal, the district court “should enter a decree abolishing segregation and opening_all the schools of the district'at once to white persons and Negroes” (R. 304), Indeed, if the contention were not now academic, the action of this Court in vacating the decree of June 23, 1951 and remanding the case for further proceedings in the dis trict court (342 U. S. 350) carries the clear implication that the contention is unsound and is so regarded by this Court. See'comments of Judge Parker at Record, pages 279-280, 284-285. Therefore, as the case comes here it presents this ques tion: Is segregation of white and colored pupils in public elementary and secondary schools of a state violative of the Fourteenth Amendment where the educational facili ties and opportunities afforded pupils of each race are sub stantially equal? The history of the adoption of the Fourteenth Amend ment compels the conclusion that it has no such scope as is claimed by appellants. Under that amendment, the right of a state which maintains a public school system to classify its students on the basis of race, or for that matter of sex or age or mental capacity, has been so often and so pointedly declared by the highest authorities that it should no longer be regarded as open to debate. These authorities are from legislative sources, both federal and state, and from the judicial branch, both state and federal. There is no con flict of opinion among them which needs to be resolved. Only an excess of zeal can explain the present challenge. .. ^ ilt is, however, equally well settled that this right of a state to classify for purposes of education is qualified by the requirement that equal facilities and opportunities-must? beT provided for each class. The equal protection of tlnpt ~ law demands no less. This als<3"is beyond all debate. —• All this the State of South -Carolina and its authorities^ fully recognizer Under the leadership of its present gov---- 468 7 ernor it is making purposeful and well-planned efforts to wipe out throughout the state all inequalities between its white and colored schools. The pay of teachers has been equalized; curricula have been made uniform; transporta tion has been provided for all at state expense; and a build ing program has been entered upon which promises to leave in the future only such differences as may and must arise between the older buildings and the new. Local self-government in local affairs is essential to the peace and happiness of each locality and to the strength * and stability of our whole federal system. Nowhere is this more profoundly true than in the field of education. It is the duty and function of each state primarily to provide for the education of its citizens. To devolve this sensitive activ ity so far as may be on those to whose minds and hearts it is an intimate concern is surely the highest statesmanship. As the district court so well said, “if conditions have changed so that segregation is no longer wise, this is a mat ter for the legislature and not for the courts” (R. 189). i ,, M M I » V ¥a , t 0 7*", * T . ’ i v:vr'y',-• 469, ---------('(/■) /’ /O / , i i SEP 2 i 1Q52 j f ^ = =s=s=^====ss£=====£=====^==d=====sss^' ' f _ > _ L - 0 O f , w . _ j ? 1 h i # - » < . * 9 ) / . * ■•■ • - 'j C r . C M 7 / ! 4 L @ 4 J U U r - V IA .I* { - a P ~ S ’j £> * - S a 4 j J “ ■— w .............. D orothy E. D avis, B kktha M. D avis and I nez D . D avis, etc., e* al., .,;... Appellants, I - " £ 5 * ) V C ounty S chool B oard of P rin ce E dward C ounty, V irginia, et al., ) Appellees. \ v.-- ' • • J Ap p e a l prom t h e U nited S tates D istrict C ourt for t h e E astern D istrict of V iroinia J BRIEF FOR APPELLANTS TfS E lwood H . C h is h o l m , '7t£b»WiLLiAM T . C o lem an , J r . , . i/G e o rg e E. C. H ay k s, /> So { /G e o ro e M. J o h n s o n , /> " in * r . ^ W illia m R . M ing, J r ., /, Z-j t/, C o n s ta n c e B a k e r M o tle y , / , 2»y t-f y Ja m e s M. N a b rit, J r . , / * 'So D avid E. P in s k y , _ , i/ F rank D . B eeves, / / 2 y ‘‘ r -i./£Jaok B . W e in s t e in , of Counsel. ^ R obert L. C arter, /, \/O liv e r W . H i l l , t^ r ,'. ^ y /T h u r g o o d M a r s h a ll, /j 2 ~ y t-h I ) S p o ttsw o o d W . R o b in so n , H I , /> 2-, Counsel for Appellants. 4 r i j r i IN TUB ©uprm* ffimtrt of fl^ 2htifri ©tatfo October Term, 1852 N o. 191 j 1 — ..... o - — : D o r o th y E. D a v is, B e r t h a M. D a v is a n d I n e z D . D a v is, e tc ., et al., AppeUaeds, j ' v s . , ! ■ C o u n t y S c h o o l B o a rd o f P r i n c e E d w a r d C o u n ty , V ir g in ia , et al., i Appellees. A p p e a l fr o m t h e U n it e d S t a t e s D ist r ic t C o u r t fo r t h e E a stern D ist r ic t o f V ir o in ia I • 0 ■ - BRIEF FOR APPELLANTS Opinion Below The opinion of the statutory three-judge District Court for the Eastern District of Virginia is reported at 103 F. Supp. 337-341 and appears in the record (B. 617-623). Jurisdiction / The final decree of the District Court was entered on j March 7, 1952 (R. 623). The petition for appeal was filed and the appeal was allowed on May 5, 1952 (R. 625, 630, 633). This is an appeal from a decree denying an injunction ! in a civil action required by an act of Congress to be heard i and determined by a distriot court of three judges. The jurisdiction of this Court to review by direct appeal the decree entered in this case is conferred by Title 28f United States Code, Sections 1253 and 2101 (b). Q uestions Presented 1. Whether Article IX, Section 140 of the Constitution of Virginia and Title 22, Chapter 12, Article 1, Section 22-221 of the Code of Virginia of 1950, which require segre gated public secondary schools for Negro students, are invalid and unenforceable as violative of rights secured by the due process and equal protection clauses of the Fourteenth Amendment. 2. Whether under the due process and equal protection clauses of the Fourteenth Amendment appellants are en titled to equality in all aspects of the public secondary edu cational process, including all educationally significant factors affecting the development of skills, mind and char acter, in addition to equality in physical facilities and curricula. 3. Whether, after finding that the buildings, facilities, curricula and means of transportation furnished appellants were inferior to those afforded white students, the District Court shpuld have issued a decree forthwith restraining appellees from excluding infant appellants from the supe rior public secondary school facilities of Prince Edward County on the basis of race and color. 4. Whether the decree issued in this case can be effec tively enforced without involving the District Court in supervision of the daily operation of the public secondary schools of the County. Constitutional Provision and Statute Involved Article IX, Section 140 of the Constitution of Virginia, provides as follows: “ White and colored children shall not be taught in the same school.” Title 22, Chapter 12, Article 1, Section 22-221 of the . Code of Virginia of 1950 provides as follows: “ White and colored persons shall not be taught in ’ the same school, but shall be taught in separate schools, under the same general regulations as to. . management, usefulness and efficiency.” Statement of the Case On May 23, 1951, appellants, infant Negro high school students residing in the County of Prince Edward, Vir ginia, and their parents and guardians, began the instant action against appellees, County School Board of Prince Edward County, Virginia, and T. J. Mcllwaine, Division Superintendent of Schools of Prince Edward County, Vir ginia, who maintain, operate and control the public sec- - ondary schools of Prince Edward County. The complaint (R. 5-30) alleged that said appellees'' maintain separate public secondary schools for Negro and non-Negro children of public school age residing in the ' County pursuant to the provisions of the Article IX, Sec tion 140 of the Constitution of Virginia, and Title 22, Chap ter 12, Article 1, Section 22-221, of the Code of Virginia of 1950, which require that white and colored children be taught in separate schools. The complaint further alleged that the public secondary school for Negro children was inferior and unequal to the public secondary schools for white children in plant, equip^.' ment, curricula, and other opportunities, advantages and 473 4 facilities; and that it was impossible for infant appellants to secure or obtain public secondary educational oppor tunities, advantages or facilities equal to those afforded white children similarly situated, or for the adult appel lants to secure or obtain the right and privilege of sending their children to public secondary schools in said County with educational opportunities, advantages and facilities equal to those afforded white children, as long as said appellees enforce or execute the laws aforesaid or pursue any policy, custom or usage of segregating students on the basis of race or color in the public secondary schools in the County. The complaint sought a judgment declaratory of the invalidity of said laws as a denial of appellants’ rights secured by the due process and equal protection clauses of the Fourteenth Amendment and an injunction restraining appellees from enforcing said laws and from maldng any distinction based upon race or color among children attend ing public secondary schools in Prince Edward County. Appellees, in their answer, admitted that the physical plant and equipment afforded Negro high school students at the Robert R. Moton High School were unequal to those afforded white high school students at the Farmville and Worsham High Schools and that they were enforcing the aforesaid constitutional provision and statute. They de nied, however, that the practice of racial segregation in the public schools contravened any mandate of the federal con stitution (R. 32-36). Appellee, the Commonwealth of Vir ginia, was permitted to intervene (R. 37). In its answer it made the same admissions and the same defense as did the original defendants (R. 37-39). Pursuant to Title 28, United States Code, Section 2284* a three-judge District Court was convened and a trial on the merits took place in Richmond, Virginia on February 25-29, 1952 (R. 39-624). A t the trial both appellants and appellees introdnced evidence, including expert testimony: (1) as to the extent of the existing inequalities at the Moton High School with respect to physical facilities and curricula as compared * with that in the white high schools; and (2) as to whether equality of educational opportunities and benefits can be afforded Negro children in a racially segregated school system. In addition, over objection that such testimony was irrelevant and immaterial in that appellants were en titled to educational equality now (R. 329), appellees were permitted to show that a proposed new Negro high .sbhool designed to correct, the admitted inequalities in physical facilities would be in operation by September, 1953 (R. 327-338). The District Court found Moton High School inferior not only in plant and facilities but in curricula and means of transportation as well (R. 622-623), and ordered appel lees to forthwith provide appellants with curricula and transportation facilities “ substantially” equal to those available to white pupils, and to “ proceed with all reason able diligence and dispatch to remove*' the existing in equality “ by building, furnishing and providing a high ^school building and facilities for Negro students, in accord ance with the program mentioned * * * in the testimony on behalf of the defendants herein, or otherwise • • • ” (R. 624). 0 The Court refused to either enjoin enforcement of the constitutional and statutory provisions here under attack or to restrain appellees from assigning secondary school space in the County on the basis of race or color (R. 619- 624). The validity of the segregation provisions was sus tained upon the following grounds: 1. That on the issue of the effects of segregation in education “ the Court cannot say that the plaintiffs' e v i dence overbalances the defendants'.” I t accepted “ as apt and able precedent” Briggs v. Elliott, 98 F. Supp. 529 (E. D. S. C. 1951) and Carr v. Corning, 182 F. 2d 14 (C. A. D. C. 1950), cases which “ refused to decree that segre- gation be abolished incontinently” (B. 619). 2. That nullification of the segregation provisions is unwarranted in view of evidence that: (a)a They declare “ one of the ways of life in Virginia. Separation of white and colored ‘chil dren’ in the public schools of Virginia has for gen erations been a part of the mores of her people.. To have separate schools has been their use and wont. The school laws chronicle separation as an unbroken usage in Virginia for more than eighty years * " ” (B. 620). • (b) Segregation has begotten greater oppor tunities for the Negro; that Virginia employs as many Negro public school teachers as are employed in all 31 nonsegregating states; and that “ in 29 of the even hundred counties in Virginia, the schools and facilities for the colored are equal to the white schools, in 17 more they are now superior, and upon completion of work authorized or in progress, an* other 5 will be superior. Of the twenty-seven cities, 5 have Negro schools and facilities equal to the white and 8 more have better Negro schools than white” (B. 621). (c) The testimony that involuntary elimination of segregation “ would severely lessen the interest of the people of the State in the public schools, lessen the financial support, and so injure both races” was “ a weighty practical factor to be considered in determining whether a reasonable basis has been shown to exist for the continuation of the school segregation” (B. 621). 3. That the Court “ found no hurt or harm to either race,” and ended its inquiry, saying: “ It is not for us to adjudge the policy as right or wrong—that, the Common wealth of Virginia ‘shall determine for itself* ” (B. 621- 622). 476 7 E rrors R elied U pon The District Court erred: 1. In x*efusing to enjoin the enforcement of Article IX , ‘ Section 140 of the Constitution of Virginia, and Title 22, Chapter 12, Article 1, Section 22*221 of the Code of Virginia of 1950, upon the grounds that these laws violate rights secured by the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. 2. In refusing to forthwith restrain appellees from using race as a factor in determining the assignment of public secondary educational facilities in Prince Edward County, Virginia, after it had found that appellants are denied equality of buildings, facilities, curricula and means of transportation in violation of the due process and equal protection clauses of the Fourteenth Amendment. 3. In refusing to hold that appellants are entitled to equality in all aspects of the public secondary educational process, in addition to equality in physical facilities and curricula. 4. In issuing a decree ordering appellees to equalize secondary school facilities in the County where such decree cannot be effectively enforced without involving the eourt in the daily operation and supervision of schools. Sum m ary of A rgum ent The segregation laws of Virginia make a distinction in public education based solely on race. This Court has held race to be an impermissible basis for legislative classifica tion and has frequently condemned state imposed racial distinctions as violative of the Fourteenth Amendment. Those decisions are decisive of the issue here. The State* cannot here justify such distinctions at the secondary level 8 of public education, nor is the legislation validated by reason of its long continuance. The Fourteenth Amendment prohibits the State from discriminating on the basis of race in affording the benefits of public education to its citizens. This prohibition is not limited to physical facilities but extends to all factors of educational significance. The record in this case demonstrates that Negro children are denied educational benefits and opportunities which the State itself asserts as the fundamental objectives of its public secondary educational program. It also demonstrates that segrega- tion as here practiced is detrimental to the educational development of Negro children. The State did not sub stantially controvert this showing but urged that the present removal of State restrictions would not benefit Negro children because their non-acceptance by white children would result in the same damage. However true this may be, it cannot justify the State in refusing to adhere to its Constitutional obligations. Since the District Court found as a fact that the Negro high school is inferior to the white high schools in physical facilities and curricula, it should have enjoined enforce ment of the segregation laws. Instead, it issued an equali zation decree which postpones educational equality until some future time. The rights asserted are personal and present, and the Fourteenth Amendment requires that equality be afforded now. A fixed relationship between two public school systems cannot be established or maintained by judicial decree. A decree directing equalization cannot be enforced with out involving the Court in a continuous supervision of the public schools. This is not an appropriate judicial function. Moreover, there is grave doubt as to whether the decree can be effective inasmuch as these school authorities have long discriminated against Negro ohildren notwithstanding a statutory directive to provide equal facilities. It is unlikely that more will be accomplished under the court’s decree than has been done pursuant to the statute. We submit that appellants can secure the rights to which they are clearly entitled under the Fourteenth Amendment only pursuant to a decree which enjoins the practice of racial segregation in the public schools and prohibits appellees from using race as a factor in affording educational benefits in Prince Edward County. S U P R E M E C O U R T O F T H E U N IT E D S T A T E S ' v.Xi ‘ OCTOBER TERM, 19S2 No. ^ .'O 1 { S . DOROTHY E. DAVIS, e t a l . , W/ Appellants, V COUNTY SCHOOL BOARD OF PRINCE . EDWARD COUNTY, VIRGINIA, e t a l ., AppeUeeJtr"^ APPEAL FROM THR UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA iniA v BRIEF FOR APPELLEES Or ----------- \lA' /T " 0) T. J u s tin M oore C £<<f» /A r c h ib a ld G. R obertson * .^vt »" * ✓ J ohn W . R iely i yT. J ustin Moore, J r. H u n to n , W illiam s, A nderson, 1003 Electric Building if G ay & M oore Richmond 12, Virginia Of Counsel Counsel for the Prince Edward v**' County School Authorities i ™ : ~ r . (2 ,:b L indsay A lm ond, J r. I / Attorney General ■ , ’ • , . . ^ 1* . j v / H e n r y T. W i c k h a m Assistant Attorney General Supreme Court Building Richmond, Virginia For the Commonwealth of Virginia D ated October 9,1952. PRELIMINARY STATEMENT This case presents to the Court for decision the forth- - right contention that segregation of the races in high school is unconstitutional even though the facilities for the education of both races are as equal as they catf be made. Two companion cases1 present substantially' the same contention. In each, the Court is asked to overrule established authority and to outlaw the fixed policies of the several States which are based on local social condi tions well known to the respective legislatures. The con tention is based on a proposal to revise the established inter pretation of the Fourteenth Amendment and on testimony given in disregard of the way of life in the localities con cerned. The Appellants, who were plaintiffs below, assert'&lso that, even if their primary contention fails, a court of equity must require immediate amalgamation of the schools even though substantial equality of education now exists in all respects except as to a school building and even though a new school building, better than that of the whites, will be in use when the next school year begins. They urge a strange contradiction: the application in equity of a harsh and unyielding rule to be applied without discretion. These cases, therefore, present questions of immediate importance to great numbers of persons in a field where science is not yet reliable and individual feeling is strong. 'No. 8, Brotvn v. Board of Education of Topeka, and No. 101, Briggs v. EUiott. O PINION BELOW The opinion of the three-judge District Court below (R. 617-23) is reported in 103 F. Supp. 337. III. JURISDICTION , • The final decree of the Court below was filed on March 7, 1952 (R. 623). The Petition for Appeal was filed on May 5,1952 (R. 625). The jurisdiction of this Court rests on 28 U. S. C. §1253 and 28 U. S. C.§ 2101(b). IV. QUESTIONS PRESENTED The questions presented are tw o: 1. W here equality exists between high schools for white and Negro as to all physical and essential ele-. m ents,' including buildings, equipment, transporta tion, curricula, quality of instruction and the like, and where the Court below has found as a fact that the evidence does not show that separate education is harmful to either race, does the Fourteenth Amend ment require this Court to strike down Virginia's laws which for 80 years have provided for segregated education? * . - * \ * 2. -Where equality- now- exists-.between high* schools for white and Negro as to all elements except the building and where the Court below has found as. a fact that local and State authorities are moving ^ with speed to complete a new building for the Negro ; ~ which, the evidence shows, will be completed before ' the next school session begins, does a court of equity lack the discretion to refrain from requiring imme diate interracial schooling? We submit that both of these questions should be answered in the negative. V. CONSTITUTION AND STATUTE CONCERNED The Appellants seek, in the circumstances of this case, to invalidate Section 140 of the Constitution of Virginia and Section 22-221 of the Code of Virginia of 1950, as follows: “§140. Mixed schools prohibited.—W hite and col ored children shall not be taught in the same school." “§22-221. White and colored persons.—White and colored persons shall not be taught in the same school, but shall be taught in separate schools, under the same general regulations as to management, useful ness and efficiency." VI. STATEMENT OF THE CASE 1 . The Parties • * * \ * ■ ■ , 1 1 ' ' • The Appellants are Negro pupils of high school age (of their representatives) living in Prince Edward County, .Virginia. The Appellees are the school authorities of the County and the Commonwealth of Virginia which inter vened below in support of the validity of its, Constitution and the statute under attack. The Locale and Its Schools Prince Edward is a small county in south-central Vir ginia (R. 303). Its population is about 15,000. Almost one- third of these live in Farmville, the only incorporated community (R. 362). Roughly half of the population is white and half Negro (R. 305). The County is poor; it ranks among the lowest fifth of Virginia counties in aver age wealth per school child (R. 432; D. Ex.a 94). There are 3 high schools in the County (R. 56, 361). Two are for white children and 1 for Negro. The white schools are Farmville, in the town on the northern bound ary of the County, and W orsham located near the geo graphical center of the County (R. 361).3 The Negro school is Moton now located in Farmville (R. 82). W hite children attend either Farmville High School or Worsham, according to their place of residence; all the Negro chil dren attend Moton (R. 57). In 1951, 405 children were enrolled at the 2 white schools and 463 were enrolled at Moton (D. Ex. 102). These enrollment figures have shown a complete change in relationship in a very short period of time. In 194i, only 10 years before, there were more than twice as many white high school students as there were Negro. The figures were 540 white and 208 Negro. It was only in 1947 that the Negro students equalled the white in number (D. Ex. 102); s \ • . * : Faced with this upsurge in Negro enrollment4 , the local authorities did everything possible to keep up with the tide. A-survey of school needs by State authorities was ‘Exhibits introduced by the Appellees are refereed to as D. E x_... ‘Worsham is a small school combining elementary and high school grades admittedly inferior-to Farmville (R. 59; D. Ex. 97). — _ instituted by the local board in 1947 just after the war (R. 293). Since immediate permanent building was impos sible, two temporary buildings were erected at the Negro school (R. 295). Later another was added (R. 296). These doubled the available floor space (R. 146). In 1949, an overall school building plan- was adopted with a new Negro high school given first priority (R. 297-8). Construction of a proper Negro high school out of cur rent funds was beyond the financial ability of the County. Two alternatives were possible. The first was a loan from the State Literary Fund. But in 1949 and 1950 that was impossible for all the money in that fund had already been allocated to loans (R. 298-9). The School Board then planned to follow the other alternative, a bond issue requiring approval by the voters. This program was pushed along as rapidly as possible (R. 303-4). In the meantime, a site for the new school was selected and proceedings for its acquisition initiated (R. 301). The Negro pupils, however, blocked this attem pt at financing by a 2-week strike (R. 304-5) which their princi pal testified that he was unable to control (R. 134,147). The local authorities persisted, however, in their, efforts at fi nancing and by June, 1951, had obtained all the funds required for the construction of the new Negro high school (R. 309-10; D. Ex. 4). 3. , The Suit; j , * The Appellants, however, disregarding the substantial efforts of the School Boa<*d in their behalf, filed their lengthy complaint in this suit in May, 1951. In essence, the complaint asserted that facilities for the Negro pupils were noFequal to those for the white and that, even if they were, segregated education was per se unconstitu tional (R. 1-30). The Appellees promptly filed their answer and admitted that the school facilities were inferior, but pointed to their building program which “is under way” and will result in equal facilities “as rapidly as can be done” (R. 33). Since the case was of State-wide or, as the Court below noted (R. 44), even broader importance, the Commonwealth intervened as a defendant and is now here as an Appellee. 4. The Trial The trial was before a specially constituted District Court of 3 judges as required by 28 U. S. C. §2281. Evi dence and argum ent were heard for the 5 days, February 25-29,1952. The Appellants produced two types of evidence. First, they presented testimony as to physical inequalities am ong the 3 high schools. This was done through photographs, statistics and a survey by an educator. They rested their main case on the evidence of an educator and 3 psycholo gists, none of whom had ever been in Prince Edward County, but all of whom testified that educational segregation is, in the abstract, bad. The evidence for the Appellees related directly to the setting in which this case is presented. It first disclosed the history and background of educatiortjin Prince Edward County. This was followed by a survey', of present condi tions and an explanation of future plans. Next, since this case is primarily an .attack; upon segregated education throughout the Commonwealth, a similar review was given to the Court as to Vieginia as a^whole. Finally, the Court was offered the views of educators, psychologists and a psychiatrist that, in the circumstances existing in Virginia and in Prince Edward County, education of the races in separate high schools is better for the Negro and the white. 5. The Decision On the first question here presented, the Court below was very clear in its decision. Two bases were found. First, the Court held that, as a m atter of law, separate education is not unconstitutional. Its words w ere: “. . . Federal courts have rejected the proposition, in respect to elementary and junior high schools, that the required separation of the races is in law offensive. . . . W e accept these decisions as apt and able prece dent.” (R. 619) Secondly, and perhaps more important, the Court found, as a matter of fact, that separate education did not con stitute discrimination. Its words w ere: “. . . the facts proved in our case . . . potently demon strate why nullification of the cited sections is not w arranted.. . . ” (R. 619) “. . . we cannot say that Virginia's separation of white and colored children in the public schools is without substance in fact or.reason. W e have found-'no hurt nor harm to either race.” (R. 621-2) • W e ask this Court's particular attention to that finding. Unlike the two companion cases, where littlejexpert evi dence' was available tcT^the defendants, here the factual case for segregation was fully presented by experts and the Court below found as a fact that segregation caused no harm. On the second issue, the Court found that disparity extended beyond buildings and equipment. It found inequality to exist also as to curricula and transportation. It restrained continued inequality in these fields a t once. It ordered the Appellees to proceed with diligence to complete the new Negro high school which will be ready by September, 1953. It refused further relief: “Both local and State authorities are moving with speed to complete the new program. An injunction could accomplish no more.” (R. 623) A final decree was entered accordingly and from that decree this appeal was taken. V I I . SUMMARY OF ARGUM ENT A. Segregation Docs Not of Itself Offend the Constitution Segregation in education existed at the time when the Fourteenth Amendment was adopted and had the approval of the Congress that submitted the Amendment and a majority of the States in the Union at the time of its ratifica tion. Thereafter-it was approved by this Court^in P lesfy v. Ferguson, 163 U. S. 537 (1896), and Gong Lum v. Rice, 275 U. S. 78 (1927). Later decisions of this Court, are not in point, since they concern either situations where the State provided no instruction-for the NegPB* but did so for the white- (M issouri ex rel. Gaines v. Canada/} 305 U. 9r337, 1938; Sipuel vJB oard o f Regents, 332 U .-Sc631,1948), or 4 8 8 - 9 situations where the Court found factual inequality to exist in circumstances which do not exist here (McLaurin v. Oklahoma State Regents, 339 U. S. 637, 1950; Sweatt v. Painter, 339 U. S. 629,1950). The equal protection of the laws requires only that the State be reasonable in establishing the classifications in which its policy is to function. If Plessy v. Ferguson is to be re-examined, principles established by this Court for the equal protection determination must be followed. These include a consideration of the significance of the historical background ( Goesaert v. Cleary, 335 U. S. 464, 1948) and of the practical setting in which the case arises ( Tigner v. Texas, 310 U. S. 141,1940; Railway Express Agency, Inc. v. N ew York, 336 U. S. 106,1949). For this purpose, Virginia history and present Virginia conditions are important. The basic historical facts are so familiar as not to require repetition. In education, Virginia lagged until 1920 but has since made great strides, high school enrollment having increased 5 times. Fifteen years ago, education for the white was better than for the Negro. For example, salary scales and average teacher training then were lower for the Negro; now salaries are equal and aver age Negro teacher training is higher. Increasing sums are being spent on schools, a larger proportionate amount going for the Negro. School facilities for the Negro equal the white in half of Virginia’s school districts and are better in one quarter. Future construction: plans are large with more to be spent r;. j - < for-the Negro than his proportionate share. ' These facts indicate that the Virginia people overwhelm ingly believe that segregated education is proper, are willing to~provide equality and'are completely prepared to bear the burdens of a dual school system. — • ~ — The evidence of the Appellants disregards this Virginia background. It is presented by experts unfamiliar with Virginia condili< » r . s or even, in general, with conditions existing in any segregated State. It is not based on sound scientific knowledge; their purported scientific “tests” are obviously unreliable. Constitutional determinations cannot be based on speculations which, they admit, are “on the frontiers of scientific knowledge.” On the other hand, the Appellees presented testimony of witnesses at least equally expert and, in addition, of broad experience not only in Virginia but throughout the nation. Their conclusions are that, with conditions in Virginia- as they are today, school amalgamation would do harm to the children of both races. They are firm in their views that the Negro high school child is better off in his own school than he would be in a mixed school. They point out that the high school level, with children not yet mature and the influence of parents strong, involves entirely different considerations from those at the graduate or professional level. High school amalgamation would bring on further dif ficulties. All administrative opinion was that Virginia ; schools would deteriorate due to reduced financial support. Furthermore, the opportunities of Negro teachers for employment would be drastically reduced. In the light of all these facts, the Court below found that segregation in Virginia high schools was not “without sub stance in fact or reason.” Its finding of fact was that segre gation caused “no hurt or harm to either race.” Its conclu sions were amply justified by- the evidence of record and should be affirmed. j . -■ B. ? • '••• ; _Thc. Constitution Docs Not Require Precipitate Action This is a narrow issue. The Court below ordered the Appellees to equalize curricula and transportation; that has 490 11 been substantially accomplished and, if the Appellants have any complaint, it should be addressed to the Court below which is fully equipped to enforce its decree. The, Court below also ordered the Appellees to proceed as quickly as possible with their plans to equalize buildings and facilities. The Appellants urge that, since the building will not be ready until after the end of the present school session, this Court should as a matter of law order amalga mation now in the middle of a school session, although segregation would then be required next year. As a sub sidiary argument, they urge that the Court below would have such difficulty enforcing any equalizing decree that segrega tion should be outlawed. . A new Negro high school building is in the course of construction in the County. It will provide better facilities than any provided for the white. It will be ready for occupancy by September, 1953. The contention of Appellants violates fundamental equita ble principles ( Eccles v. Peoples Bank, 333 U. S. 426,1948). If adopted, it would mean chaos in the County schools, just for the remainder of this school session. It would hurt the children of both races and help no one. The Constitution does not require such fruitless action. The decree of the Court below is now being given substan tial compliance. There is nothing to indicate impossibility of enforcement. It is only when.that is indicated that the Appellants may seek to destroy segregation on this novel fjground. •; \ * • < The determination of constitutional limitations* is a prac tical matter. The Court below acted wisely. The Appellants "''have no cause for complaint. - T/P'd? ' - ,l“ 'ifTo l (j v?"*’ CRo-Suptrns Cou:l,U.5. f / ■ i ’ u ^ . J S ) < t>t^, ■ ' n I i72i wv 1 6 m % b s f t v£~*~^-%&<7< & ^isty* Supreme (iluurt of tlje Itniteii States „ . . / O c to b er T e r m , 1952 iz/tjf? SuLs. o jS "VU-al V- VTN S h > Respondents IUXI * • & J •. ■ ■ f * S po ttsw o o d T h o m a s B o l l in g , E t Al., 5 I o ^ iX ( i Petitioners ^ ^ ^ j ^ 0. M e l v in S h a r p e , E t Al., |7 vZflAAA*- BRIEF FOR PETITIONERS (P G eobob E. 0. H a t e s ^ 7 i 4^<TaME8 M. Nabrtp. . T k. ** ' " r V i J a m b s M . N a br it, J r. Counsel, for Petitioners ^t&~*‘ J u l i a n R. D u g a s G e o rg e M . J o h n s o n ^ -J < ^ T ) o r8 e t E. L a n e H a r r y B. M e r io a n V H e r b e r t 0 . R e id , J r . * W / W ames A. W a s h in g to n ( 1 \ V i \J / Of Counsel » V V M / , . A / f t, O ctober T e r m , 1952 ---------- I No. 413 S pottbwood T hom as B olling, E t AL, 1 • k Petitioners V. "iv.......................| 0. M e l v in S h a r p e, E t Al., ' • '• •• |'r Jj J i' Respondents » BRIEF FOR PETITIONERS OPINION BELOW The final decree of The United States District Court for the District of Columbia is unreported, but appears in their Record (R. p. 19). 'ji, JURISDICTION The final decree of the District Court was entered oiii April 9,1951 (R. p. 19). The notice of appeal to the United States Court of Appeals for the District of Columbia Cir cuit was given on April 10, 1951 (R. p. 20). Briefs were filed by petitioners and respondents in the United States Court of Appeals for the District of Columbia Circuit. Be fore argument, before submission of the case for judgment on the briefs, and before judgment petitioners, filed a-,Peti- • - tion for W rit of Certiorari in this Court, as^iqg .that this. Court review the judgment of the United States DiAtifteir • Court for the District of Columbia before judgment by the United States Court of Appeals for tho District of Colum bia Circuit. Certiorari was grantod by order of this Court dated November 10,1952. This is an appeal from a decree in a civil action denying an injunction and, denying an application for a declaratory judgment holding that the action of respondents, under color of law, in refusing admission of minor petitioners to Sousa Junior High School solely on the basis of race or color was in violation of the due process clause of the Fifth Amendment and Article I, Section 9, Clause 3 of the Constitution of the United States, and also in violation of Title 8, United States Code, Section 43, and further was in violation of the Charter of the United Nations, Chap ter 1, Article 1, Section 3, Article IX Sections 55 and 56, ‘ and, denying an application for a declaratory judgment holding that respondents are required by the Constitution and laws of the United States to admit said minor petition ers to Sousa Junior High School and to refrain from any distinction with respect to them because of their race or color in affording them educational opportunities and, dis missing petitioners' complaint on the ground that it failed to state a cause of action on which relief could be granted. The jurisdiction of this Court to review by writ of certio rari before judgment in the United States Court of Appeals ~is conferred by Title 28, United States Code, Sections 1254(1) and 2101(e). QUESTIONS PRESENTED 1. Whether the Federal Government in providing educa tional opportunities for pupils of the District of Columbia has power under the Constitution and laws of the United States to segregate pupils solely on the basis of race or color. 2. (a) Whether Acts of Congress which provide educa tional opportunities for pupils in the District of Co- lumbia compel their segregation solely on tho bnsis of race or color. (b) If Acts of Congress which provide educational op portunities for pupils in the District of Columbia compel their segregation solely on the basis of race or color, whether these acts are unconstitutional. (o) If Acts of Congress which provide educational op- - portunities for pupils in the District of Columbia permit segregation solely on the basis of race or color, whether to the extent that this legislation is thus permissive its im plementation by actions of respondents is unconstitutional. 3. Whether the actions of respondents in refusing to ad mit minor appellants to Sousa Junior High School solely , on the basis of race or color violated petitioners’ rights guaranteed them by the Constitution and Laws of the United States. 4. Whether the United States District Court for the Dis trict of Columbia erred, in denying petitioners’ application for an injunction and for a declaratory judgment, and in granting respondents’ motion to dismiss petitioners’ com plaint on the ground that it failed to state a claim on which relief could be granted. TREATY AND STATUTES INVOLVED Treaty: Article 1(3), 2(2), 55(c) and 56 of the United Nations. ;; Charter, 59 Stat. 1035 et seq. : * - • Statutes: . i . (A) Title 8, United States Code, Sections 41 and 43. (B) Act of June 11,1878, 20 Stat. J.07, Chapter 180, See. 6, as amended June 20, 1906, 34 S&t. 316, Chapter 3446, Beo.'S (D. 0. Code 1951 Ed., Title 31, Secs. 1110,1111,1112, 1113). • ~ " — 495 4 (C) Act of June 20, 1003, 34 Slot. 316, Chapter 344G , See, 2 (D. C. Code 1051 Ed., Titlo 31, See. 1100). (D) Act of June 20, 1003, 34 Stat. 31G , Chapter 344G , See. 7, as amended by Act of June 4, 1024, 43 Stat. 370, Chapter 250, Art. 3 (D. C. Code 1051 Ed., Titlo 31, See. 115). (E) Act of July 7,1047, Public No. 163, 80th Congress, 1st Sossion, as amended by Act of Oct. 6,1949, Publio No. 353,81st Congress, 1st Session. (F) Act of February 4, 1925, 43 Stat. 806, 807, Chapter 140, Art. 1, Sees. 1 and 7 (D. C. Code 1951 Ed., Title 31, Sees. 201, 207). ' STATEMENT OF THE CARE On the iltli- day of September, 1950, and during the time when respondents were receiving students for enroll ment and instruction in Sousa Junior High School, a pub lio school in the District of Columbia attended solely by white children, all of the minor petitioners, Negroes be tween the ages of 7 and 16 years, citizens of the United States, residents of and domiciled in the District of Colum- ' bia, within the statutory age limits for eligibility to attend the public schools of tho District of Columbia and subject to tho compulsory school attendance law of tho District of Columbia, accompanied by their parents, adult petition ers, presented themselves to respondent Eleanor P. Me- AulifTc, tho principal of Sousa Junior High School, for enrollment and instruction therein. The adult petitioners are taxpayers and citizons of the District of Columbia, and are required by law to send their respective children, minor petitioners, to the specifio public schools designated by tbo respondents, and are subjoct to oriminal prosecution for failuro so to do. Act of February 4,1925,43 Stat. 806, 807, Ch. 140, Art.-1, Secs. 1 and 7 (D. C. Code 1951 Ed., Title 31, Secs 201, 207). Each minor petitioner was denied and ex- 1*96 5 eluded from cnrollmont awl instruction nt tlio Gousa Junior High School solely because of raco or color. On tho 27tli day of Oclobor, 1950, minor potilionors, through their attorneys, appealed to respondent Lawson J. Cantrell, Associate Superintendent of Schools in ehargo of tho vocational and junior high schools in tho District of Columbia, Divisions 1-9 (now Division I), restricted to wliito pupils. Again each minor petitioner was denied and excluded from enrollment and instruction at the Sousa Junior High School solely because of race or color. On tho 31st day of October, 1950, minor petitioners, through their attorneys, appealed to respondent Norman J. Nelson, First Assistant Superintendent of Schools, Divi sions 1-9, restricted to white pupils, and to respondent Hobart M. Corning, Superintendent of all tho public . schools in the District of Columbia, and each denied and excluded each minor petitioner from enrollment and im struction at Sousa Junior High School solely because of race or color. On the 1st day of November, 1950, the respondent Board of Education of the District of Columbia upheld tho actions of the other respondents and itself denied and excluded minor petitioners from enrollment and instruction at Sousa Junior High School solely because of their race or color. Having exhausted their administrative remedies, there after and on November 9, 1950, petitioners, on their own behalf and on behalf of others similarly situated, filed a complaint (R. p. 1) and brought a class suit in the United States District Court for the District of Columbia, against the respondents, members of tho School Board and officials of tho publio school system of the District of Columbia, in their respoetive official capacities. Tho action sought a declaratory judgment pursuant to Rulo 57 of tho Federal Rulos of Civil Procedure, stating that the respondents are without right in construing tho statutes having to do with publio education in tho District of Columbia so as to re 497 6 quire said respondents to exclude tlic minor potiti.oricra from nUendnneo nl tlio Rou.su Junior High School tmd in denying to tho minor polilionoru tho right of ntlondunco at the Sousa Junior High School in violation of their rights as secured to them by tho due process of law clause of tho Fifth Amendment of the Constitution of the United States, by Titlo 8, United States Code, Sections 41 and 43, and by Article I, Section 9, Clause 3, of tho Constitution of the United States, prohibiting legislation in the nature of a Bill of Attainder, and by tho Charter of the United Nations, Chapter I, Article I, Section 3, Article IX, Sections 55 and 56, and further stating that the said respondents are re* quircd by the Constitution and laws of the United States to admit said minor petitioners to Sousa Junior High School and to refrain from any distinction with respect to them because of their race or color. i The action further sought an interlocutory and a perma nent injunction restraining respondents, and each of them, their successors in office, and thoir agents, and employees from precluding tho admission of minor petitioners and other Negro children similarly situated to the Sousa Junior High School for no other reason than because of their race or color, upon the grounds that said refusal of admission as applied to minor petitioners or other Negroes similarly situated, in whoso behalf they sue, denies them their privi leges and immunities as citizens of the United States, and is in violation of their rights as enunciated under the duo process of law clause of the Fifth Amendment of the Con stitution of tho United States, Title 8, United States Code, Sections 41 and 43, Article I, Section 9, Clause 3, of the Constitution of the United States, and tho Charter of the United Nations, Chapter I, Article I, Section 3, Article IX, Sections 55 and 56. i Tho action also sought an intorlocutory and a pormanont j injunction requiring respondents, and oaoh of thorn, thoir j Buocossors in'office, and thoir agonts and employees to ad- mit the minor petitioners to attendance in the Sousa Junior High School in conformity with their rights as secured to them by tho duo process of law clause of the Fifth Amend ment of tho Constitution of the United States, Title 8, United States Codo, Sections 41 and 43, and Article I, Sec tion 9, Clause 3, of the Constitution of tho United States, and tho Charter of the United Nations, Chapter I, Article I, Section 3, Article IX, Sections 55 and 5G . Subsequently, tho respondents, through their attorneys, filed a motion to dismiss the complaint on tho ground that tho complaint failed to state a claim upon which relief could* be granted (It. p. 18). The Ilonoi'ablc W alter M. Bastian, Judge in tho United States District Court for tho District of Columbia, refused either to grant an injunction restrain ing respondents from denying minor petitioners admission to Sousa Junior High School solely on tho basis of race or color, or to issue a declaratory judgment that said denial was in violation of petitioners’ rights under the Constitu tion and laws of the United States, or to issue a dccrco requiring respondents to admit minor petitioners to Sousa Junior High School free of any racial distinctions, and on April 9, 1951, granted the motion to dismiss (B. p. 19). Tho District Judge at the close of oral argument stated that he was bound by the holding of the United States Court of Appeals for the District of Columbia Circuit in Carr, et al. v. Corning, 86 App. D. C. 173, 182 F. (2d) 14 (1950), and Browne, et al. v. Magdeburger, et al., 86 App. D. C. 173,182 F. (2d) 14 (1950). An appoal was taken to the United States Court of Ap peals for tho District of Columbia Circuit (B. p. 20), and briefs wore filed therein. This easo has not been sot down for oral argument, nor has it boon submitted for judgment on the briofs, and no orders with respect thereto hnvo been entered by that Court. Tho D istrict Court erred: 1. In r of using to onlor n declaratory judgmont holding that the respondents arc without right in excluding minor' petitioners from Sousa Junior High School under color of law upon the ground that these actions violate rights se cured by the due process clause of the Fifth Amendment and Article I, Section 9, Clause 3 of the Constitution of tho United States, and by Title 8, United States Code, Sec tions 41 and 43, and by tho Charter of the United Nations, Chapter I, Article I, Section 3, and Articlo IX, Sections 55 and 56; and in refusing to hold that respondents are re quired by the Constitution and laws of the United States to admit said minor petitioners to Sousa Junior Iligh School and to refrain from any distinction with respect to them because of their race or color. * 2. In refusing to restrain respondents from denying ad mission of minor petitioners to Sousa Junior Iligh School for no other reason than because of their race or color, upon the ground that this action is in violation of their rights sccui'cd under tho due process clause of the Fifth Amend ment, and Article VI, Clause 2 of the Constitution of tho United States, Title 8, United States Code, Sections 41 and 43, and the Charter of the United Nations, Chapter I, Arti cle I, Section 3, Article IX, Sections 55 and 56. 3. In refusing to issue a decree requiring respondents to admit minor petitioners to Sousa Junior High School in conformity with thoir rights under the Constitution and laws of tho United States, and in refusing to hold that Acts of Congress do not compel racial segregation in the publio schools of the District of Columbia, for they would' then violate Article I, Section 9, Clause 3 of tho Constitution of tho Unitccl States, and respondents wcro in orror in apply ing and construing said statutos so as to require tho exclu sion of. minor petitioners from Sousa Junior High School sololy on the basis of raco or color. 500 9 4. In granting respondents * motion to dismiss peti tioner's complaint on the ground that it failed to slate a claim on which relief could be granted. liUMH/jJiY OF AttGUiaEtf'j? 1. The Fifth Amend nont of the Constitution of tlio United States prccludos tlio Federal Government from im posing distinctions or restrictions based on raco or color alone in affording educational opportunities to pupils in the District of Columbia. Therefore, respondents, as school officials in tho District of Columbia, have no constitu tional power to dony minor petitioners admission to Sousa Junior High School solely on the basis of race or color. 2. (a) The Acts of Congress which provide educational opportunities for pupils in tho District of Columbia do not compel their segregation solely on the basis of race or color. (b) If these Acts of Congress arc interpreted as com pelling segregation in the public schools of the District of Columbia of minor petitioners solely on the basis of race or color then these Acts of Congress are bills of attainder, prohibited by Article I, Section 9, Clause 3 of the Constitu tion of the United States as well as violativo of the due process clause of tho Fifth Amendment. (c) If these Acts of Congress are interpreted as not com pelling segregation but as permitting segregation in the public schools of tho District of Columbia of minor petition ers solely on tho basis of raco or color, then to tho extent that these Acts are implemented by the action of respond ents in denying minor petitioners admission to Sousa Junior High School solely on tho basis of race or color, this action of respondents implementing this legislation is unconstitutional. 3. Tho denial of admission of minor petitioners to Sousa Junior High School solely- on tho basis of raco or color doprivos them of thoir civil rights in violation of Article VI, Clause 2 of tho Constitution of tlio United States, Title 8, United, Statos Code, Sections 41 and 43, in violation of tlio Charter of the United Nations, Chapter I, Article I, Section 3, and Chapter IX, A rliclcs 55, 56. 4. The court below erred in not granting petitioners the relief prayed for and in granting respondents* motion to dismiss minor petitioners* complaint on tho ground that it failed to state a claim on which relief could be granted. « t o DEC Z 3052 BRIEF FOR RESPONDENTS S u p r e m e C o u r t o f t h e United States •V !!irv C l * OCTOBER TERM, 1952 ^ > No.^413"v^ T 3 > SPOTTSWOOD THOMAS BOLLING, ET A L , , PwrmoNKRS, v. 0. MELVIN SHARPE, ET AL., R e s p o n d e n t s. / V rrn o n E. W est, Corporation Counsel, D. C., ^ C h e s t e r H. G ray, ^ Principal A ssistant Corporation Counsel, 2). C., ^ M xi/ ton D . K obm an, pt<j /> u/j A ssistant Corporation Counsel, D. C.) Counsel fo r Respondents, / l / L y m a n J. U m s t e a d , Assistant Corporation Counsel, D. C. Of Counsel, Supreme Court of the United States OCTOBER TERM, 1952 No. 413 SPOTTSWOOD THOMAS BOLLING, E T AL., P e t it io n e r s , v. C. MELVIN SHARPE, ET AL., R e s p o n d e n t s . BRIEF FOR RESPONDENTS A final judgment of the United States District Court for the District of Columbia dismissing a complaint for injunc tion and declaratory judgment is here for review, by writ of certiorari, before judgment by the United States Court of A ppeals for the District of Columbia Circuit. The petition ers, plaintiffs in the District Court, sought admission to tho Sousa Junior High School, a junior high school in Division 1 of the public school system of the District of Columbia, ' which division encompasses the several schools for white pupils, contending that tho separation of white and Negro cliildron in the public schools violates Article I, Seo. 9, Clause 3 of the Constitution of the United States, the Fifth Amendment to the Constitution of the United States, Title 3, Sections 41 and 43 of the United States Code, and Chap ter I, Article 1, Section 3 and Chaptei* IX, Artioles 55 and 3G of the Charter of the United Nations. 504 2 OPINION BELOW A final order dismissing the complaint of the petitioners, ■ plaintiffs in the United States District Court for the Dis trict of Columbia, appears in the record (R. 19). It is not reported in any official reporter system. After a final order of dismissal of the complaint was en tered by the United States District Court for the District of Columbia on April 9, 1951 (11. 19), notice of appeal to the United States Court of Appeals for the District of Colum bia Circuit was filed by petitioners, plaintiffs in the District Court, on April 10, 1951 (R. 20). After briefs were filed in the United States Court of Appeals for the District of * Columbia Circuit by both the petitioners and respondents, 4 but before argument was had in that court, this Court, in a Per Curiam opinion dated October 8,1952 entered jointly in tho cases of Broion v. Board of Education of Topeka, Briggs v. Elliott, and Davis v. County School Board of Prince Ed~ ward County, Virginia, Nos. 8, 101 and 191 respectively, Ootober Term, 1952, continued said three cases for argument so that a petition for certiorari might be filed herein under the provisions of 28 U. S. C. § § 1254(1), and 2101(e). A _ petition for writ of certiorari was filed herein by petitioners on October 24, 1952 seeking review of the judgment of the : United States District Court for the District of Columbia, which petition was granted on November 10, 1952. Juris diction of this Court is accordingly predicated upon the provisions of Title 28, United States Code, Sectipns 1254(1) ' and 2101(e). GROUNDS OP JURISDICTION QUESTIONS PRESENTED _ In the opinion of the respondents the questions prese ' ’ herein a re : . . 0 (1) Whether the complaint filed by petitioners in the United States District Court for the District of Columbia states a claim on which relief can be granted. (2) Whether Acts of Congress providing for the estab lishment and maintenance of a dual school system in the District of Columbia arc constitutional. STATEMENT OF THE CASE . • The statement of the case .incorporated in the brief filed by petitioners sets forth as facts most of the allegations of their complaint filed in the District Court rather than stat ing them merely as allegations. There arc also a few statements which are in error and, accordingly, respondents believe that the following is a correct presentation of the facts: A complaint filed in the United States District Court for the District of Columbia alleges in substance the following: The corporate petitioner, Consolidated Parent Group, Inc., is an organization having for its ob jective, among others, “ abolition of segregation and other discriminatory practices now invoked upon minority groups in the public schools and rc- ■ creational areas of the District of Columbia.’’ The adult petitioners are taxpayers and citizeus of the United States and of the District of Colum bia, required by law to send tlicir respective child- / ren, minor petitioners, to public schools in the Dis- trict, and are subject to criminal prosecution for failure so to do. The minor petitioners are Ne groes, are residents of the. District of Columbia, ' are within the statutory age limits of eligibility to attend public schools of said District, and were, . by the principal of Sousa Junior High School, on . the lltn day of September, 1950, and during the - time when the respondents were receiving students ■ m for enrollment and instruction in Sousa_Junior “ High. School, a public school iiTthe DistricTof Co- . lumbia, refused admission and excluded from en rollment and instruction therein solely because of their race or color. Subsequently, minor petitioners appealed to the Associate Superintendent of Schools in charge of white vocat ional and junior high schools in tho Dis trict of Columbia, to the First Assistant Superin tendent of Schools, Divisions 1-9 (now Division 1), restricted to white pupils, to the Superintendent of all public schools in the District of Columbia, and to the Board of Education. The several school tff- ficial'8 refused admission and excluded the minor petitioners from enrollment and instruction in Sousa Junior High School, solely because of their race and color, and the Board of Education upheld the action of these school officers. Defendants in the action filed in the District Court, who arc now the respondents, arc members of the Board of Education, the several school officers heretofore mentioned, and the First Assistant Superintendent of Schools, Divi sion 10-13 (now Division 2), restricted to colored pupils. The minor and adult petitioners, allegedly on their own behalf and on behalf of others similarly situated, together with the corporate petitioner, also allegedly acting on be half of itself and all Negro citizens of the United States residing in the District of Columbia, “ similarly situated’* , on November 9, 1950 filed the complaint (B. 1-14), in the District Court, against the respondents in their respective official capacities. The suit sought a declaratory judgment that the respondents are without right to construe certain Acts of Congress so as to exclude the minor petitioners from Sousa Junior High School on account, of their race or color, and sought interlocutory and permanent injunctions restraining the respondents from-so excluding the minor petitioners and requiring them to admit the minor petition ers to said school. The complaint is based upon alleged violation of Article 1, Section 9, Clause.. 3 of the Constitu tion, the Fifth Amendment to the Constitution, Sections 41 and 43 of Title 8 of the United States Code, and Chapter I, Article 1, Section 3 and Chapter IX, Articles 55 and 56 of the Charter of the United Nations; The complaint alleges that the minor petitioners “ do now attend a junior high school in said District.” Contrary to the allegation in paragraph 4 of the com plaint (R. 4), the compulsory school attendance law of the District of Columbia, 43 Stat. 806 (set out in Appendix B of petitioners’ brief), does not require attendance upon a pub lic school. Subsequently, the respondents, through counsel, filed a motion to dismiss the complaint (R. 18). The District Court granted the motion to dismiss (R. 1$). SUMMARY OF ARGUMENT Petitioners brought this action in the district court to require respondents, members of the Board of Education and school offi cials, to admit Negro children to Sousa Junior High School, a school 'established and maintained for white children. The com plaint charges that the minor petitioners are deprived of “enjoy ment of the educational opportunities afforded” in Sousa Junior High School in violation of the Civil Rights Act, the United Na tions Charter, Article I, Section 9, Clause 3 of the Constitution, and the due process clause of the Fifth Amendment. The com plaint admits, however, that the minor petitioners “do now at tend a junior high school” in the District and contains no allega tion that any educational opportunity available in Sousa Junior High School is not available in the junior high school which minor petitioners “do now attend.” These fatal deficiencies of the complaint not only justified the district judge;in dismissing -the complaint but required that he do so. A series of Congressional enactments between 1862 and 1866 providing , for the establishment of a dual school system In the District of Columbia were reenacted by Congress in 1874 as part of the Revised Statutes of the District. This Court construed these enactments as requiring the maintenance of the dual school system by so referring to them in the case of Plessy v. Ferguson, in 1896. 508 6 The highest court of the District of Columbia has on two oc casions, in 1910 and in 1950, construed the Revised Statutes of the District as requiring the maintenance separate schools for white and colored children. Indeed, Congress itself in a number of enactments for the District of Columbia between 1874 and 1951 has treated and dealt with the dual school system as an established fact. Since this Court ordinarily accepts the construction and interpretation by the highest court of the District of Columbia of purely local laws, that court’s construction and interpretation of these purely local laws should be accepted herein. • Even slavery was constitutional under the Fifth Amendment— it required a constitutional amendment to end it. W hen slavery in the District of Columbia was abolished by Congress before the adoption of the Thirteenth Amendment, M due process” com manded payment for the property thus taken. Separate schools for white and colored children were set up by tlic very same legis lators who proposed the Fourteenth Amendment and who enact ed the Civil Rights Acts. Thus their contemporaneous judgment was that a dual system of schools is constitutional. During the years following the Civil War, when political rights for Negro cit izens were being established by constitutional amendments and legislation, an integrated school system for the District was not considered by the Congress to* be an essential part of the rights. Indeed, after the dual system had been in operation for over a quarter century, some of the outstanding Negro spokesmen of the community insisted that the continuance thereof is essential to the. maximum development of the race. ■ . : Dual school systems have been many times decided by this Court to be constitutionally valid under the Fourteenth Amend ment, .which contains an M equal protection” clause as well as a “due process” clause. Isi view iof these decisions and the* oft- enunciated rule that the due process clauses of the two Amend ments are similarly construed, the dual system in the District of Columbia cannot be violative of the Fifth Amendment. Beyond the fact that there was such_a close tie between- the Fourteenth Amendment, Ihe Civil Rights Acp and the law s set- ting up the dual school system in the District, efforts to specifically include integration of District schools in an amendment of die Civil Rights Act failed of passage in Congress and, indeed, the enactment of the Revised Statutes in 1874 repealed by implica tion any concept that the earlier Civil Rights Act denounced the dual school system. The provisions of-' the United Nations Charter do not con stitute the equivalent of valid congressional enactments nor do such Charter provisions have the effect of repealing by implica tion federal, State or municipal laws in conflict therewith. The "human rights" and "fundamental freedoms’* mentioned in Article 1 and Article 55 of the Charter are not defined anywhere therein, but are no greater than the rights and freedoms guaran teed to Americans by the federal Constitution. These Articles, as well as Article 56, are non-self-cxccuting rather than self-execut ing provisions and must be implemented by legislation to over ride established local law. Since the laws establishing separate schools for white and Negro children in the District of Columbia had for their purpose the giving rather than the denial of educational opportunity, it connot be said that such laws constitute a legislative pronouncement of guilt and punishment of the Negro people without trial. These laws are not, therefore, Bills of Attainder, and certainly the con struction thereof so as to require the maintenance of the dual school system cannot be considered violative of the constitutional prohibition against Bills of Attainder. • • The duty of the courts is to interpret, not to enact, legislation. : The policy or wisdom of the maintenance of a dual school system is beyond the power of courts to even consider. One branch of- government should not encroach upon the domain of another and- statutes should not be adjudged invalid except for manifest neces sity. Since the two parts of the dual school system are conceded* to be equal, if the long established policy of their maintenance in the District of Columbia is to be struck down, the Congress and not the Court is the body to make that decision. JWUU uii by • 4ii 3 1 4 .9 9 9 i 'x\ K''<t'^,,’" ‘"'r c '/''''” H / /' / ^ ^ • v ^ d ? ! f ^ 1!?nru^ 51<l V / IN THE t Supreme Court of the UnitediStates'a’C ! s r t October Term, 1952. a FRANCIS B. GEBHART, W ILLIA M B. H O RN ER, EU G EN E SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TERRY,. . JAM ES M. TU N N ELL, Members of the State Board of Education o f‘ the State of Delaware, G EO RG E R. M ILER, JR., State Superintendent of Public Instruction of the State of Delaware, A LFR ED EU G EN E FLETC H ER , GEORGE CLIFFO RD JO H N SO N , SAGER TR Y O N , EARL EDW ARD RO W LES, Members of the Board of Education of the.. Claymont Special School District, HARVEY E. STAHL, and HAIG;;-.-, K U PJIA N , Petitioner,r, E T H E L L O U ISE BELTO N , an Infant, by H er Guardian ad Litem. E T H E L BELTON, ELB ER T JAMES CRUM PLER, an Infant, bjF ‘ His Guardian ad Litem, JO SE PH CRUM PLER, RICHARD LEO N . DAVIS and JO H N T E R R E L L DAVIS, Infants by Their Guardian ad • Litem, JO H N W. DAVIS, SPENCER W. RO BINSO N, an Infant, .. by Her Guardian ad Litem, W IL L IE ROBINSON. STYRON LU C ILLE. SANFORD, an Infant, by Her Guardian ad Litem, EMMA FO UN TAIN, ALMENA A. SHORT, an Infant, by H er Guardian ad Litem, JO H N SH ORT, M YRTHA D ELO R ES T R O T T E R , an Infant, by Her Guardian ad Litem, HARLAN TR O TTER . E T H E L B ELTO N , JO SE PH CRUM PLER, JO H N W. DAVIS. W IL L IE RO BIN SO N , EMMA FO UNTAIN, JO H N SHORT, and HARLAN T R O T T E R , Respondents. FRANCIS B. GEBHART. W ILLIA M B. HO RN ER, EU G EN E H . SHALLCROSS, JESSE OHRUM SMALL, N. MAXSON TER R Y , and JAM ES M. TU N N ELL, Members of the State Board of Education! of the State of Delaware, GEORGE R. M IL LER , JR., State Superin tendent of Public Instruction of the State of Delaware, GORDON F/l BIEH N , FR ED ER IC K H. SM ITH. HEN RY C. M ITCH ELL, and E T H E L C. McVAUGH, Members of the Board of School Trustees ofi Hockessin School No. 29, Petitioners. ■ v. SH IR LEY BARBARA BULAH, an Infant, by H er Guardian ad Litem, .SARAH BULAH, FR ED BULAH and SARAH BULAH, Respondents, RIBF FOR P E T I T I O N E R S . rii i * . ( I ( O h . a l b e r t y o u n g , . Attorney General of the Slate of Delaware. LOUIS J. FINGER. Deputy Attorney General of the State of Del • t a a t S t . , P f c i l a . t . P a . n ; • i • *11 & IK THE Supreme Court of the United States. O c to b e r T e r m , 1952. No. 448. Francis B. Gebhart, William B. Horner, Eugene H. Shall- cross, J c k so Ohrum Small, N. Maxson Terry, James M. Tunnell, Members of the State Board of Education of the State of Delaware, George R. Miller, Jr., State Su perintendent of Public Instruction of the State of Dela ware, Alfred Eugene Fletcher, George Clifford John son, Sager Tryon, Earl Edward Rowles, Members of the Board of Education of the Olaymont Special'School District, Harvey E. Stahl, and Haig Kupjian,- Petitioners, v. Ethel Louise Belton, an Infant, by Her Guardian ad Litem, Ethel Belton, Elbert James Crumpler, an Infant, by His Guardian ad Litem, Joseph .Grumpier, Richard Leon Davis and John Terrell Davis, Infants by Their Guardian ad Litem, John W. Davis, Spencer W. Robin son, an Infant, by His Guardian ad Litem, Willie Rob inson, Styron Lucille Sanford, an Infant, by Her Guardian ad Litem, Emma Fountain, Almena A. Short, an Infant, by Her Guardian ad Litem, John Short, Myrtha Delores Trotter, an Infant, by Her Guardian ad Litem, Harlan Trotter, Ethel Belton, Joseph Crumpler, John W. Davis, Willie Robinson, Emma Fountain, Johii Short, and Harlan Trotter, Respondents. Francis B. Gebhart, William B. Horner, Eugene H. Shall- cross, Jesse Ohrum Small, N. Maxson Terry, and James M. Tunnell, Members of the State Board of Education of the State of Delaware, George -R.-Miller, Jr., State Superintendent of Public Instruction of the State -of Delaware, Gordon F. Biehn, Frederick H. Smith, Henry 0. Mitchell, and Ethel G. McVaugh, Members of the Board of Sohool Trustees of Hockessin School No. 29, Petitioners, v. Shirley Barbara Bulab, an Infant, by Her Guardian ad Litem, Sarah Bulah, Fred Bulah and Sarah Bulah. Respondents. BRIEF FOR~PETITIONERS. ■ ■ ;\V> V’ ■ ' • * 2 Brief for Petitioners I. PRELIMINARY. Petitioners seek review of a final judgment of the Su preme Court of the State of Delaware affirming an order of the Court of Chancery of the State of Delaware enjoin ing petitioners from denying to infant plaintiffs and others similarly situated, all negro children, admittance as pupils in certain schools maintained for white children only, be cause of color or ancestry. Because the oral argument in this case was advanced to allow it to be heard together with Nos. 8,101,191 and 413, petitioners were allowed 3 weeks after argument to file their brief. • * ' EL OPINIONS ?ELOW. ■ The opinion of the Chancellor of the State of Dela ware is reported in — Del. Ch. —, 87 A. 2d 862. The opin ion of the Supreme Court of the State of Delaware is re ported in — Del. Chi —, 91 A. 2d 137. m . JURISDICTION. The judgment of the Supreme Court of the State of Delaware was entered on September 9, 1952. A petition for a writ of certiorari was filed herein on November 13, 1952. Certiorari was granted on November 24, 1952. The jurisdiction of this Court is invoked under 28 U. S. C. $ 1257 (3). The opinion of the Chancellor rested on the supposed requirements of the Fourteenth Amendment; however, the,- Chaneellor also indicated that the! same decree would have- ■ been entered as a matter of equitable discretion (A. 353).1 The Delaware Supreme Court rested its decision squarely on the Fourteenth Amendment to the United States Consti tution and decisions construing Jhe requirements of that amendment (R. 56-58). The Supreme Court said: 5 1 3 Brief for Petitioners 3 **. . . we cannot reconcile the denial of prompt re- _ lief with the pronouncements of the Supreme Court of O the United States.” It is dear, therefore, that the judgment of the Supreme Court of the State of Delaware rests squarely on an as serted conflict between the Delaware constitutional pro visions and statutes, and the Fourteenth Amendment as interpreted by the Supreme Court of the United States. 1. (A. ) refers to “ Appendix to Brief of Appellees (Defendants Below) ” (White Cover). (BA. ) refers to “ Beply Appendix (Defendants Below)” (White Cover). (B. ) refers to the record in the Delaware Supreme Court which is found at the end of “ Supplementary Ap pendix of Appellees (Plaintiffs Below) and Plaintiffs- Appellants” (Blue Cover). T 514 4 Brief for Petitioners IV. QUESTIONS PRESENTED. The question presented is whether the Fourteenth Amendment to the United States Constitution prohibits a court of equity from considering and balancing questions of public convenience, public enjoyment and other factors governing the exercise of equitable discretion, where negro students are demanding admission to superior schools maintained for white children and the school administrators have reasonably shown that the inequalities in the facilities which are maintained for said negro children are being cor rected and can be corrected within a reasonable time. The attack of the respondents in this case against the existence of such equitable discretion in this case is three pronged and gives rise to the following three subsidiary . questions: 1. Does the Fourteenth Amendment require immediate admission of respondents to schools maintained for white children, where inequality has been shown f 2. Can educational opportunities be equalized in a segregated school system? 3. Does segregation in and of itself violate the equal protection clause of the Fourteenth Amendment? V. THE CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED. The constitutional provisions and statutes of the State of Delaware involved in this case are printed in Appendix . A in frk pages 37-38. C» * ♦ ' Brief for Petitioners 5 VL STATE? iENT OF THE CASE. The controversy in (.lie instant eases involves the ap plications of certain negro children seeking admission to Claymont High School and Hockessin School No. 29, two public schools of the State of Delaware maintained for white children only. The applicants to Claymont High School are permitted to attend Howard High School, a public school of the State of Delaware maintained for colored children only. The ap plicants to Hockessin School No. 29, an elementary school, - are permitted to attend Hockessin School No. 107, an ele mentary public school of the State of Delaware maintained for colored children only. In both cases, the defendants are the members of the Boards of Education, respectively, of - the schools maintained for white children. In both cases, plaintiffs were refused admission to the schools maintained for white pupils solely on account of race or color (B. 48, A. 12, A. 13, A. 29). Voluminous testimony was introduced with respect to the buildings, sites, budgets, teacher preparation, teacher load, health services and other factors bearing on the rela tive merits of the negro and white schools involved. Both Courts below found that the white schools were superior to the negro sohools. The Chancellor, in his opinion (A. 338-356) made numerous findings of fact. The Delaware Supreme Court reviewed those findings and modified them. The findings of the Delaware Supreme Court, embodied in its written opinion (B. 37-64) are supported by substantial evidence, and therefore need not be reviewed by this C ourt ' The Findings With Respect to Olaymont High School j Vis-a-Vis Howard High School. Claymont High School is located in Claymont, Dela ware, and is approximately nine miles from Howard High School, which is located in Wilmington, Delaware (R. 48}. Howard High School is the only publio school in the county 6 Brief for Petitioners s offering a complete high school course to negroes (R. 48) and is open to all negroes in the county including residents of Claymont. The Howard High School is composed of two units: the main Howard building, where most of the classes are held, and the Carver building, approximately nine city blocks from the Howard building, in which cortain voca tional and commercial courses are given (R. 49). The Claymont High School plant is not similarly divided. The Delaware Supreme Court found the schools to be equal with respect to public funds (R. 49), the buildings proper (R. 49), accreditation (R. 51), curricula (R. 51), equipment and instructional materials and libraries (R. 53), and substantially equal with respect to sites proper (R. 49- 50), faculty (R. 51-53), and instruction (physical educa tion excepted) (R. 52-53). The Howard (negro) physical and mental health services were found to be superior to those at the white school (R. 54). The Supreme Court found as a matter of fact that the Howard-Carver High School is substantially unequal to the Claymont High School in that the "physical plant of How- ard-Carver, including the sites, is substantially unequal to that of Claymont; that the classes in physical education at Howard are so large as probably to jeopardize satisfactory education; and that the plaintiff Belton is subjected to un equal and discriminatory treatment in respect to travel" (R. 56). The basis of the finding of inequalities as to physical plant was that the Carver building itself was inadequate from the standpoint of its physical construction (R. 49), lack of playground space (R. 49), and distance from the main Howard building which necessitate‘ travel back and forth between the two buildings (R. 54), and that the How ard gymnasium is insufficient for physioal education (R. 49). The Howard classes in physical education are also sub stantially larger than the classes in physioal education in Claymont High SShool, a faot which is related to the in adequacy of the Howard gymnasium (R. 52JT- The basis Brief for Petitioners 7 for the finding with respect to travel was the failure of the State to supply transportation to the Howard students * whereas transportation in school busses was provided for Claymont students (R. 54-55). The present schedule of the Wilmington Board of Ed ucation contemplates a transfer of grades 7, 8 and 9 of the Howard High School to a separate school building and the closing down of the Carver building at the beginning of the school year in September, 1953 (R. 36,57). At the same time the Howard building will be enlarged, additional equipment will be added and pupils attending the Howard School will be transferred completely to the main Howard building (R. 57). An additional high school for negroes in the county is also under construction (A312; R. 57). The Findings W ith Respect to the Elementary Schools. The evidence adduced by respondents with respect to the elementary schools was to show disparity in allocation of public funds, the condition of buildings and sites, physi oal facilities offered, equipment, formal preparation and rating of teachers and transportation. Although in past years the negro school did not receive its proper share of public funds, this inequality at the time of the trial had been remedied (R. 59), and the negro school has been re ceiving and now receives an amount of money equal to or greater than the amount received by the white school (R. 59). Both school buildings are of brick (R. 59). The in- : equalities found in buildings were as to maintenance and upkeep of the buildings (R. 59-60). Inequalities were found in the sites due to superior landscaping of the white •j school (R. 61). ‘ The Supreme Court found that there was no substan- * tial inequality in physical and instructional equipment and materials, although the medioal supplies and equipment ap peared to be superior at the white sohool (R. 62). With respeot to teaohers, the Supreme Court found that the teaohers at the white school possess a superiority 8 Brief for Petitioners in formal training and are rated somewhat higher than the teachers a t the negro school (R. 62). The Supreme Court also found that past inequality as to teachers’ salaries had been remedied prior to the fis cal year of 1951-1952 (R. 62). The Supreme Court noted: “ It is natural to suppose that with the equality of funds any substantial disparities will shortly be elimi nated . . . ” (R. 63). The other inequality found by the Delaware Supreme Court was in- transportation growing out of the failure of the State Board of Education to furnish bus transpor tation for the white school while not furnishing similar transportation for the negro school (R. 63). The existence or non-existence of school bus transpor tation depends upon whether a sufficient number of pupils are grouped along the route so that the sum total allow ance made to such pupils will pay for the bus. The trans portation allowances are uniform for all schools, both white and colored and for all pupils and vary with the distance which must be traversed from the pupil’s home to the school (Defendants ’ Exhibit 10 *). 2. All exhibits were before the Delaware Supreme Court under an agreement that they be not printed. Since Defendants’ Exhibit No. 10 does not appear as part of the printed record, we are reprinting portions of it as Appen dix B, pages 39-42 infra. 519 Brief for Petitioners 9 VH. SPECIFICATION OF ERRORS. The Supreme Court of the State of Delaware erred: 1. In holding that the “ equal protection*' clause of the Fourteenth Amendment to the United States Constitution requires that a mandatory constitutional provision of the State of Delaware providing for segregated public schools be over-ridden where the physical facilities are not equal and in holding that the Court had no equitable discretion in the premises to permit a reasonable, time for existing inequalities to be corrected. 2. In failing to hold that a decree commanding peti tioners to equalize the facilities, affording time to do so, is • not permitted by the Fourteenth Amendment of the Consti tution and will not afford respondents adequate relief. 3. In affirming paragraphs one and two of the order of the Court of Chancery. t. 1 0 Brief for Petitioners VIII. SUMMARY OP ARGUMENT. A. The Chancellor's decreo was predicated upon an in terpretation of the equal protection clause of the Four teenth Amendment and upon the opinion of this Court in Sweatt v. Painter, 339 U. S. 629,70 Sup. Ct. 848 (1950) that the rights of the respondents are personal (A353). The language of the Chancellor's opinion indicates that he re garded such a decree as compulsory under the constitutional provision. Although the Chancellor indicated that if it be a matter of discretion he would reach the same conclusion, the language of the opinion does not indicate that he made an actual determination on this point. Furthermore, the Supreme Court of the State of Delaware, in affirming the form of the Chancellor's decree, predicated its affirmance' solely on the ground that the Fourteenth Amendment re quired that the respondents be admitted immediately into the schools with the superior facilities. The Delaware Su preme Court in considering cases which reached a contrary result stated: **. . .w e cannot reconcile the denial of prompt relief to the pronouncements of the Supreme Court of the United States. If, as we have seen, the right to equal protection of the laws is a ‘personal and present' one, how can these plaintiffs be denied such relief as is now available!" (R. 57-58). The allusion was to the cases of State of Missouri ex rel. Qaines v. Canada, 305 U. S. 337, 59 Sup. Ct. 232 (1938); Sipuel v. Board of Regents, 332 U. S. 631, 68 Sup. Ct. 299 - (1948); Sw eatt v . Painter, 339 U..S. 62^, 70 Sup. Ct. 848 ' (1950) (R. 46). The Delaware Supreme Court; relying.on .diota in those cases foreclosed any inquiry into the equities of the jituation or of any factors which would move its dis cretion. The, Supreme. Court held in effeot that there was no discretigp .and, cqnsequently, refused to review .the Chancellor's exercise of discretion. The petitioners in this - ease were Therefore ineffect denied an opportunity tcchgl- Brief for Petitioners 1 1 lenge in the highest court of the State of Delaware the manner in which the Chancellor had exercised his discre* tion in tho light of the existence of the “ separate but equal** doctrine, and particularly in the light of the man datory constitutional provision of the State of Delaware requiring the maintenance of segregated schools. The Fourteenth Amendment does not require Courts of equity .to abdicate historical equitable discretion and become mere automatons applying a rigid and inflexible constitutional test 1. The Fourteenth Amendment does not require, the immediate admission of respondents to the schools main tained for white children only. The inequalities as re vealed by the Delaware Supreme Court are such that they are being remedied and can be remedied within a relatively short period of time, and in any event by the opening of the school year in 1953. In view of the mandatory consti tutional provision of the State of Delaware, of the exist ence of reasonable facilities for the education of respond ents and of the possible disruption of the school program and the harm which might be caused by compelling the negro children to return to the negro schools after the fa cilities have been equalized, a decree limited to an order compelling the school administrators to equalize the school facilities is reasonable and would not violate the Four teenth Amendment. The dicta in State of Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 59 Sup. Ct. 232 (1938), Sipuel v. Board of Regents, 332 U. S. 631, 68 Sup. C t 299 (1948), and Sw eatt v. Painter, 339 U. S. 629, 70 Sup. Ct. 848. (195Q) do not require a contrary result Those caies are distinguishable because the: State was not supplying any facilities for the negroes involved; there was no show ing or even, an offer by the States involved to equalize the facilities; a public policy favoring segregation in the insti tutions gf higher learning there involved, was not so strong as to have been embodied in a mandatory constitutional provision; and institutions of higher learning involving 1 2 Brief for Petitioners educational factors not found in high schools and elemen tary schools wcro there being considered. A decree requir ing the petitioners to equalize the facilities within a rea sonable time would give the respondents relief as quickly as practicable consistent with an orderly administration of the school system, and in keeping with our framework of government. 2. The schools involved in the present case can he equalized even though maintained as segregated schools. Most of the factors involved in determining whether given elementary or secondary schools are eqtr.l in the educa tional opportunities they offer were considered in this case. Factors such as opportunity for specialization, distinction of the alumni, size of student body, opportunity for min gling and intercourse with other people pursuing the same profession, and like factors dealt with in the law and grad uate schools involved in Sweatt v. Painter, 339 U. S. 629, 70 Sup. Ct. 848 (1950) and McLaurin v. Oklahoma State Regents, 339 U. S. 637, 70 Sup. Ct. 851 (1950) are of little or no importance in evaluating the educational opportuni ties provided in a primary or secondary school. Those fac tors which are of importance clearly can be provided equally for both white and colored children. Since the fa cilities can be equalized, there is no reason why the State should not be afforded a reasonable time to do so. 3. Segregation does not in and of itself violate the equal protection clause of the Fourteenth Amendment. This proposition was sustained over 100 years ago in the abolitionist state of Massachusetts under a provision of the Massachusetts constitution; similar to the “ equal protec tion” clause of the Fourteenth-Amendment. Roberts v. Bos ton, 5 Cush. 198-(Mass. 1849). It was sustained within., the first ten years after the~adoption of the Fourteenth Amendment in such northern states as Ohio, New York,_ Pennsylvania and Indiana, State ex rel. Oarnes v. McCann^ 21 Ohio St. 198*^(1871); People ex rel. Diets v. Easton, 13 Brief for Petitioners 1 3 Abb. Pr. (N. S.) 159 (N. Y. 1872); Commonwealth v. W il liamson, 30 Legal In I. 406 (Pa. 1S73); Cory v. Carter, 48 Ind. 327 (1874); in the free state of California, W ard v. Flood, 48 Cal. 36 (1874), and it has been sustained ever since by state courts and lower federal courts in a long line of cases. Bertonneau v. Board of Directors, 3 Fed. Cas. 294 (1878); Davis v. County School Board of Prince Edward County, 103 Fed. Supp. 337 (D. Va. 1952), appeal pending this Court No.. 191. See also cases cited in Carr v. ' Corning, 182 F. (2d) at p. 17, fn. 6, and in Briggs v. Elliot, 98 Fed. Supp. 529, at p. 534 (appeal pending this Court No. 101); see also Brown v. Board of Education of Topeka, 98 Fed. Supp. 797 (D. Kansas 1951) (appeal pending this Court No. 8), and by this Court, Gong bam v. Rice, 275 U. S. 78, 48 Sup. Ct. 91, 72 L. Ed. 172 (1927). Respondents seek to overthrow this well established and settled interpreta tion of the Fourteenth Amendment by introducing testi mony of educators, psychologists, sociologists and anthro pologists. This testimony is imprecise and uncertain and- has led to conflicting findings of fact in the Kansas case, Brown v. Board of Education of Topeka (No. 8 October Term 1952), in the Virginia case, Davis v. County School Board of Prince Edward County, Virginia (No. 91 October Term 1952), and in the instant case. We submit that such testimony is insufficient to upset the authority and practices long established by the various State courts and legislatures and recognized by this Court. The acceptance of such testimony is merely an oblique and unsatisfactory way of evading the settled interpretation of the;Fourteenth-Amendment. The suggestion that segre gation might validly be found to be harmful tojnegro chil- . dren in one State (presumably a border state) and not harmful in another state (presumably a southern state) : ha&^io.basis in the realities of the testimony .presented in these .cases. JThe testimony was all of the .same general _ character although the attorneys sought in a general way tirfilate it TO"the specific state involved. I t dealt with gen eral-psychology and not with the specifio attitudes of the 14 Brief for Petitioners people in the particular slate involved. Moreover, if this suggestion were carrier io its logical conclusion, a border state, like the State of Delaware, could easily find itself required to eliminate segregation in districts liko those in-, volved in the present case which border on tho Pennsyl vania line and yet be permitted to maintain segregation in Sussex County, a portion of the State where tho attitude of the people corresponds more nearly with those of the peo ple in the deep south. Such a situation would bo chaotio from the standpoint of school administrators. In any event, no finding with respect to the hurt or harm to the negro has been reviewed by the highest court of the State of Delaware. If the Court finds that its decision should be based upon such a finding, there should be an oppor tunity for the Supreme Court of the State of Delaware to review the finding of the Chancellor in this case. The basis for the racial classification is reasonable. Tho testimony of the social scientists advanced by respond ents shows clearly that “ While the bad psychological re sults of enforced segregation on both parties are unques tionable, it may be the only way to prevent much more serious trouble based on incompatibility of the cultures of the groups involved, long established hostile attitudes, etc.” and ” . . . And segregation is better unless the mixing is damn well handled, that is better in terms of the long-term effect upon the respective attitudes of the two groups in contact” (PL Exh, 3, BA 28-29). The asserted invalidity of segregation does not compel the decree to be framed in the manner framed by the Dela ware Supreme Court, nor does anything in the Fourteenth Amendment so require. j O ffice - S u p re m e u i u r t , U A • J v a > V T T 3 B D October Term, 1952 No. 448 — ^ FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS. JESSE OHKUM SMALL, N. MAXSON TERRY, JAMES M. TUNNELL, Mcmlicrs of the State Board of Education of the State of Delaware, GEORGE R. MILLER, JR., State Superintendent of Public Instruction of the State of Delaware, ALFRED EUGENE FLETCHER, GEORGE CLIFFORD JOHNSON, SAGER TRYON, EARL EDWARD ROWLES, Members of the Board of Education of the Claymont Special School District, HARVEY E. STAHL, and HAIG KUPJIAN, Petitioner*, v. ETHEL LOUISE BELTON, an Infant, by Her Guardian ad Litem, ETHEL BELTON, ELBERT JAMES CRUMPLER, an Infant, by His Guardian ad Litem, JOSEPH CRUMPLER, RICHARD LEON DAVIS and JOHN TERRELL DAVIS, Infants by Their Guardian ad Litem, JOHN W. DAVIS, SPENCER W. ROBINSON, an Infant, by His Guardian ad Litem, WILLIE ROBINSON, STYRON LU CILLE SANFORD, an Infant, by Her Guardian ad Litem, EMMA FOUNTAIN, ALMENA A. SHORT, an Infant, by Her Guardian ad Litem, JOHN SHORT, MYRTHA DELORES TROTTER, an Infant, by Her Guardian ad Litem HARLAN TROTTER, ETHEL BELTON, JOSEPH CRUMPLER, JOHN W. DAVIS, WILLIE ROBINSON, EMMA FOUNTAIN, JOHN SHORT, and HARLAN TROTTER. Respondent*. FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS. JESSE OHKUM SMALL, N. MAXSON TERRY, and JAMES M. TUNNELL, Members of the State Board of Education of the State of Delaware, GEORGE R. MILLER, JR., State Superin tendent of Public Instruction of the State of Delaware, GORDON F. BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, a n d ETHEL C. McVAUGH, Members of the Board of School Trustees of Hockcssin School No. 29, Petitioner*, v. SHIRLEY BARBARA BULAH, an Infant, by Her Guardian ad Litem, SARAH BULAH, FRED BULAH and SARAH BULAH, Respondent*. BRIEF OF RESPONDENTS AND APPENDIX TO BRIEF ;V v (pLOUIS L. REDDING,.'V J . / jU r&*fHURGOOD MARSHALL, n£h£7ACK GREENBERG^«^uL-n. /. Attorneys J^rrT(*tpon3i*ts.\ / 'I _ . . . . . . x 526 guprottr Gnurt of % luitefc States October Term, 1952 No. 448 FRANCIS B. GEBHART. WILLIAM B. HORNER, EUGENE H. SHALLCROSS, JESSE OH RUM SMALL, N. MAXSON TERRY, JAMES M. TUNNELL, Members of the Slate Board of Education of the State of Delaware, GEORGE R. MILLER, JR., State Superintendent' of Public Instruction of the State of Delaware, ALFRED EUGENE FLETCHER. GEORGE CLIFFORD JOHNSON, SAGER TRYON, EARL EDWARD ROWLES, Members of the Board of Education of the Claymont Special School District, HARVEY E. STAHL, and HAIG KUPJIAN, Ptliliontrs, v. ETHEL LOUISE BELTON, an Infant, by Her Guardian ad Litem, Litem, JOHN W. DAVIS, SPENCER W. ROBINSON, an" Infant, by His Guardian ad Litem, WILLIE ROBINSON, STYRON LU- ’ CILLE SANFORD, an Infant, by Her Guardian ad Litem, EMMA FOUNTAIN, ALMENA A. SHORT, an Infant, by Her Guardian ad Litem, JOHN SHORT, MYRTHA DELORES TROTTER, an Infant, by Her Guardian ad Litem HARLAN TROTTER, ETHEL BELTON, JOSEPH CRUMPLER, JOHN W. DAVIS, WILLIE ROBINSON, EMMA FOUNTAIN, JOHN SHORT, and HARLAN TROTTER. RttpOHdtnls. FRANCIS B. GEBHART, WILLIAM B. HORNER, EUGENE H. SHALLCROSS. JESSE OHRUM SMALL, N. MAXSON TERRY, and JAMES M. TUNNELL, Members of the State Board of Education of the State of Delaware, GEORGE R. MILLER, JR., State Superin* tendent of Public Instruction of the State of Delaware, GORDON F. BIEHN, FREDERICK H. SMITH, HENRY C. MITCHELL, and ETHEL C. McVAUGH, Members of the Board of School Trustees of Hockcssin School No. 29, Pttitiom rs, v. SHIRLEY BARBARA BULAH. an Infant by Her Guardian ad Litem, SARAH BULAH, FRED BULAH and SARAH BULAH. RttpondtnU. BRIEF OF RESPONDENTS AND APPENDIX TO BRIEF Preliminary Statement The petition for writ of certiorari filed in this Court, on November 13, 1952, was served upon respondents on November 17, 1952. Because of the grave importance of , t the issues raised and their similarity to issues raised in Nos. 8, 101, 191, and - i 1 .'5 , pending before this Court, re* spondents waived the filing of a Briof in Opposition and moved that, if certiorari wcro granted, tho argument be advanced and heard immediately following argument on the above-numbered eases. On November 24, 1952, this Court entered an order granting the petition for writ of certiorari and granting respondents' motion to advance. Brief for petitioners is to be filed not later than three weeks after argument. So that before argument the Court will have before it a fuller exposition of the facts and issues than could be con tained in the petition for writ of certiorari and so that the Court may have before it a fuller exposition of their posi tion, respondents are filing their Brief in advance of peti tioners' Brief. Jurisdiction The statement as to jurisdiction is set forth in the petition for writ of certiorari. Opinions Below 1 The opinion of the Chancellor of the State of Delaware (A. 338) is reported in 87 A. (2d) 862. The opinion of the Supreme Court of the State of Delaware (R 37) is reported in 91 A. (2d) 137. 1 The record in this case consists of five separate parts: appendix to petitioners' brief in the court below, the supplement thereto^; appen dix to respondents''brief in the court below, the supplement thereto, and the record of proceedings in the Supreme Court of Delaware. These will be referred to in respondents' brief as follows: Appendix to petitioners' brief below will be indicated by A; the - supplement to the petitioners' appendix below will be referred to as SA; respondents’ appendix below will be referred to as RA; the supplement to respondents* appendix below will be referred to as RSA; the record of proceedings in the Supreme Court of Dela ware will be referred to as R. Questions Presented 1. Whether in cases in which the evidence establishes that racial segregation imposed by the State creates inferior education for Negro school children, the State constitution and statutes causing such inequality should be struck down to the extent that they require segregation, as contrary to the equal protection clause of the Fourteenth Amendment to the United States Constitution. 2. W hether in cases in which the evidence establishes that the State offers Negro children educational oppor tunity inferior to that which it offers white children simi larly situated, the courts below were correct in ordering admission of the Negro children to the superior facilities pursuant to the equal protection clause of the Fourteenth Amendment of the United States Constitution. 3. Whether, where the Courts of the State of Delaware have stated in this case that they do not see how a decree ordering inferior educational facilities equalized could be administered by a court of equity, they were correct in ordering, as the only available relief, Negro respondents admitted to schools which, pursuant to State constitution and statutes had been maintained exclusively for white children. Statutes Involved The constitutional and statutory provisions of the State of Delaware involved in this case are printed in the Appen- ‘ dix to this brief. This litigation arises from two several complaints (A. 3-13, 13-30) filed in class actions in the Conrt of Chancery •of the State of Delaware by Negro school cliildrcn and their guardians (respondents here) seeking admittance of the children to two public schools maintained by the petitioners, as agents of the State of Delaware, exclusively for white children in New Castle County, Delaware. One complaint (A. 3-13) alleges that respondents, resid ing in tho Claymont Special School District, were refused admittance to the Claymont High School, maintained by petitioner members of the State Board of Education and members of the Board of Education of the Claymont Special ' School District. This refusal was solely because of respond ents*8 color or ancestry. As a consequence, respondents are required to attend the Howard High School (BA. 47), a public school maintained separately for Negroes in Wil mington, Delaware. This high school conducts classes in two separate buildings, one known as * ‘Carver" being nine city blocks from the main Howard Building (BA. 50). All Wilmington public schools, including Howard, are operated and controlled by the corporate “ Board of Public Educa tion in Wilmington,’* which is not a party to this cause (A. 314-315, 352, R. 57, BA, 203). 8 This statement of facts is a concise description of what has gone before in accordance with the rules. However, in view of the brevity of time between the granting of certiorari and the argument herein, and in view of the complicated state of the record which has been bled consisting of five volumes numbering more than 700 pages which in large part overlap, respondents believe that the Court may be assisted in following the evidence by a somewhat lengthier statement which organizes the evidence taken below. For this purpose, we have placed in the appendix to this brief such a statement, which we hope will be of assistance to the Court in following the record. • "Respondents" hereafter in this brief refers to the infant re spondents. 530 5 The second complaint (A. 14-30) alleges that the respondent, seven years old, resides in the village of Hockcssin (A. 23) and that solely because of her color was rcfusod admittance to Hockcssin School No. 29, a public elementary school, comprising grades one to six, which is maintained exclusively for wliitc children by petitioner members of the State Board of Education and petitioner 'members of the Board of School Trustees of Hoclcessin • School No. 29. The separate Hockcssin School No. 107 is , maintained for Negroes, by the aforesaid State Board of Education. llcspondcnts in both complaints assert that this cx6lu- sion, or segregation (a) requires respondents to attend schools substantially inferior to the schools for white chil dren to which admittance is sought and (b) injures the mental health, impedes the mental and personality develop ment of respondents and thereby also makes inferior their educational opportunity as compared with the educational opportunity afforded white children living in Claymont and Hoclcessin. Such exclusion, respondents assert, is pro hibited b y the equal protection clause of tho Fourteenth Amondmcnt of the Constitution of the Unitod States. Petitioners' answers (A. 31-33, 34-37) in both cases defend the exclusion (a) upon mandatory constitutional and statutory provisions of the State of Delaware requiring that separate schools be maintained for white and colored chil dren and (b) upon the claim that the educational oppor tunities and advantages afforded respondents by petitioners are equal to those afforded white children similarly situated. The two casos were consolidated and tried before the Chancellor. In an opinion (A. 338-356) filed April 1,1952, the Chan cellor set forth a finding of fact, based on the undisputed oral testimony of exports in education, sociology, psychol- °gy» psychiatry and anthropology (A. 340-341) that iu “ our Delaware society," segregation in education praoticod by petitioners as agonts of the Slate “ itself results iu the, 531 G » • f Nogro children, as a class, receiving educational oppor tunities which are substantially inferior to thoso available to white children otherwise similarly situated.” However, ^ tlio Chniu.ellor denied respondents’ prayers for a judgment declaring that tho Delaware constitutional and statutory provisions violate respondents’ right to equal protection. The disputed issues of fact as to the inequality of the “ Negro” schools as compared to the “ white” schools, tho Chancellor resolved by finding the former substantially inferior to tho lattor. As to the high school for Negroes, he based this conclusion on his factual finding of inferiority, by comparison, in the following factors, which ho viewed both independently and cumulatively: teacher training, pupil-tcachcr ratio, extra-curricular activities, physical plant and esthetic considerations, and the greater burden, time-wise and distance-wise, suffered by respondents in attending this school. As to the elementary school for Negroes, tho trial court found it inferior in building and site, including osthctic values, teacher preparation, and in a total absence of transportation facilities or the equivalent thereof. Expressly rejecting, for reasons to which we shall refer later (A. 352-353), petitioners’ contention that they should bo directed to equalize the inferior segregated educational facilities assigned to respondents, the Chancellor issued an order, dated April 15, 1952, enjoining petitioners from ex cluding respondents, because of color from the high school and the elementary school found to bo superior. On appeal by tho school officials, the Supi’ cme Court of Delaware, in an opinion dated August 28, 1952, determined that the Chancellor’ s factual finding that Stato-imposod ! segregation in public schools and equality of education are inherently incompatible was, in view of tho doctrine enunci ated by this Court in Plessy v. Ferguson, 163 U. S. 537 (1896), and Gong Lum v. Rice, 275 U. S. 78 (1927), “ imma- C torial.” Tho Delaware Supremo Court thoroforo oxprossly < approved the Chancellor's declination of a declaratory judg ment that tho Dolawaro Constitution and statutes providing for schools segregated on the basis of color contravened respondents’ right to equal j> ; * « it< • « - » ion. j Astipulation was filed iu the Supremo Court of Delaware sotting forth counsel’ s acknowledgment that tho “ sohodnlo of tho Wilmington Board of Education calls for” transfer of three grades at the Howard High School to another Wilmington school in September, 1953 (It. 35-3G). Tho Supreme Court of Delaware reviewed the evidcnco relating to educational facilities for the purpose of making its independent finding of fact and drawing its own conclu sion as to whether there was “ substantial equality” (R. 45). As to both high school facilities and elementary school facilities, the Supreme Court concluded that those afforded respondents were not substantially equal to those available to white children similarly situated and that plaintiffs were injured by the inequality (R. 56, JR . 63). However, in reaching this conclusion tho appellate court rejected conclusions of the trial court that certain of the factors compared wore influential, or differed as to the degree of the influence. In evaluating the evidence as to the high schools, the appellate court found that differences in pupil-tcachcr ratio and formal training of teachers were not sufficiently significant to warrant a finding of inferiority in tho “ Negro” school in those respects. Differences in extra-curricular activities also were deemed too insubstan tial to support a finding of inequality. There was, howover, no rejection by the appellate court of any of Chancery’s conclusions with respect to the equation bctweon tho ele mentary schools. Undor tho sub-heading “ Relief”, the opinion of the Stato- Supremo Court also specifically pondorod whether “ the form of the [Chancellor’s] decrco,” in directing de fendants to admit plaintiffs to the facilities found to be superior was orroneous (R. 56). Tho Supreme Court con- 533 8 sidorcd tho appropriateness of a dcercc to equalize tlio high school facilities and noted two preliminary difficulties: one, that the legal entity having control of the Wilmington public schools was not a party to the cause; two, that tho court could not see how it could supervise und control tho expenditure of state funds in a matter committed to tho administrative discretion of school authorities. Determin ing, with respect to the high school facilities, that “ To require the plaintiffs to wait another year under present conditions would be in effect to deny them that to which we have held they are entitled,” tho Supreme Court iqphold tho “ injunction of tho court below” as “ rightly awarded” (It. 58). As to the relief with respect to the inferior elementary school facilities, the Delaware Supreme Court said: “ The burden was clearly upon the defendants to show the extent. to which the remedial legislation had improved conditions or would improve them in the near future. This the de fendants failed to do.” The Court then alluded to its ante cedent discussion of the matter of relief for the high school respondents and said: “ It accordingly follows that the Chancellor’s order in respect of the admittance of tho plaintiff” [respondent, here] to the elementary school found to be superior “ must be affirmed” (B. 63). Mandates of affirmance of the judgment of the Court of Chancery in the high school and elementary school cases were issued separately by tho Supremo Court on September 9,1952 (B. 65,66). On September 23,1952, a motion was made by petitioners to the Chancellor for a stay of his order of April 15, 1952, and denied by tho Chancellor (Appendix to Bespondents’ brief, p. 26). Motion to the Supreme Court of Delaware to review the Chancellor’s order denying a stay was made by the peti tioners on Soptember 25, 1952, and the samo day denied by the court (Appendix to Bespondents’ brief, pp. 25-27). 534 9 ■ / of A i ' c : : . . a c a $ The kind of liar in licro in H i clod hy segregation warrants affirming; the judgment below beenurie thir. Court lias legally recognized such injury in prior casco. The other injuries inflicted by inferiority in perhaps more measurablo facilities ulso require affirming tho order of immcdiato admission because immediacy is an integral part of tho right. The Delaware courts have hold that they cannot issue the kind of dc'.rce the State requests. Therefore the decree which was issued represents tho only method by which relief can be granted. . . Argument Factor^ Relevant In Equating Educational Offerings In determining whether two educational offerings are “ equal" or not, tho first problem appears to bo to scloct the factors to be placed on each side of tho equation. This Court has never exhaustively catalogued those; it has never been called upon to do so. And it is probably impos sible to compile a complete list in a field as dynamic as education. But, this Court has set up some criteria. For purposes of this case, we may turn also to specific factors which professional educators deem relevant, certainly, at least insofar as petitioners * witnesses agreed with respond ents. In several recent cases dealing with education at a different level, this Court has pointed out factors which are or might bo significant in the kind of equation we are trying to sot up. In tho case of a law school (S w e a tt v. Painter, 339 U. S. 629), it has especially noted tho number of tho faculty, variety of courses, and opportunity for specialization, size of student body, scope of the library, and cortain extra-curricular activities. Qualities ‘ * incapable APPENDIX E SUPREME COURT'S ORDER ON REARGUMENT AND RELATED MEMORANDUM 535 072 OCTOBER TERM, 1052. June 8, 1953. 345 U. 8. Miscellaneous Orders. No. 8. B r o w n e t a l. v . B o a rd o f E d u c a ti o n or T o p e k a e t a l . ; No. 101. B r ig g s e t a l . v . E l l i o t t e t a l ., M e m b e rs o f B o a rd o f T r u s t e e s o f S c h o o l D i s t r i c t #22, e t a l . ; No. 101. D a v is e t a l . v . C o u n t y S c h o o l B o a rd or P r i n c e E d w a r d C o u n t y e t a l . ; No. 413. B o l l i n g e t a l . v . S h a r p e e t a l . ; and No. 448. G e b h a r t e t a l . v . B e l t o n e t a l . Each of these cases is ordered restored to the docket and is assigned for reargumcnt on Monday, October 12, next. In their briefs and on oral argument counsel are requested to discuss particularly the following questions insofar as they are relevant to the respective cases: 1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools? 2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate aboli tion of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment (a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or (b) that it would be within the judicial power, in light of future conditions, to construe the Amend ment as abolishing such segregation of its own force? 3. On the assumption that the answers to questions 2 (a) and (6) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish, segregation in public schools? DECISIONS PER CURIAM ETC. 973 345U.S. Jtino 8, 1053. 4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment (а) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or (б) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? 5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in ques tion 4 (b), (a) should this Court formulate detailed decrees in these cases; (b) if so, what specific issues should the decrees reach; (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; (d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? The Attorney General of the United States is invited to take part in the oral argument and to file an additional brief if he so desires. Supreme Court of the United Statee Memorandum . June 15, 195> ! 104 ... and June 8. 1953 these cases Mwere ordered restored to the docket to be reargued Monday. October 1 2 . , 1 9 5 3- , together with Nos.\o, >TOi I 1 Our/ No* 1 of this term. B I B L I O G R A P H Y 539 BIBLIOGRAPHY Books Aptheker, Herbert. The Negro People In America. New York: International Publishers, 1946. Black, Henry Campbell. Black's Law Dictionary. St. Paul, Minnesota: West Publishing Co., 1951. Blaustein, Albert P., and Ferguson, Jr., Clarence Clyde. Desegregation and the Law. New Brunswick, New Jersey: Rutgers University Press, 1957. Brameld, Theodore, "Educational Costs," Discrimination and National Welfare. Maclver, R. M. , (ed.) New York: Harper Bros., 1949. Cardozo, Benjamin N. Law and Literature. New York: Har- court, Brace and Co., 1931. _________. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921. Corpus Juris Secundum. Vol. XVI, Constitutional Law §6. Brooklyn, New York: The American Law Book Co., 1939. Frank, John P. Marble Palace. The Supreme Court in Ameri can Life. New York: Alfred A. Knopf, 1958. Frazier, E. Franklyn. The Negro in the United States. New York: Macmillan Co., 1949. Hill, Herbert, and Greenberg, Jack. Citizen's Guide to Desegregation. Boston: The Beacon Press, 1955. Hughes, Charles Evans. The Supreme Court of the United States. New York: Columbia University Press, 1928. Lewis, Anthony. Gideon's Trumpet. New York: Random House, 1964. 540 541 Mason, Alpheus T. The Supreme Court: Palladium of Freedom Ann Arbor, Michigan: University of Michigan Press 1962 Murphy, Walter F., and Pritchett, C. Herman. Courts, Judges, and Politics: An Introduction to the Judicial Process. New York: Random House, Inc., 1961. Myrdal, Gunnar. An American Dilemma, The Negro Problem and Modern Democracy. New York: Harper & Bros., 1944. Schubert, Glendon A. Constitutional Politics The Political Behavior of Supreme Court Justices and the Constitu tional Policies That They Make. New York: Holt, Rine hart and Winston, Inc., I960. Stern, Robert L., and Gressman, Eugene. Supreme Court Practice. 2d ed. Washington, D. C.: Bureau of Na tional Research, Inc., 1954. Swisher, Carl Brent. The Supreme Court in Modern Role. Washington Square: New York University Press, 1958. Westin, Alan F. (ed.) The Supreme Court: Views from Inside. New York: W. W. Norton and Co., 1961. Wiener, Frederick B. Briefing and Arguing Federal Appeals. Washington, D. C.: BNA Inc., 1961. ________ . Effective Appellate Advocacy. Washington, D. C. BNA Inc., 1950. Witmer, Helen L., and Kotinsky, Ruth (ed.). Personality in the Making. New York: Harper and Brox., 1952. Zieglar, Benjamin M. (ed.). Desegregation and the Supreme Court. Boston: D. C. Heath and Co., 1958. Articles and Periodicals Anderson, Presiding Judge H. C. "Briefs and Arguments That Help the Courts," 17 Tenn. L. Rev. 591 (1943). Birkett, Sir Norman. "The Art of Advocacy," 34 A.B.A.J. 4, January (1948). Brennan, Justice William. "Law and the Social Sciences," 24 Vital Speeches 143 (1957). 542 Chein, Isidor. "What are the Psychological Effects of Segregation under Conditions of equal Facilities?" 3 Int. J. Opinion and Attitude Res. 229 (1949). Davis, John W. "The Argument of an Appeal," 26 A.B.A.J. 895 (1940). Deutscher, Max, and Chein, Isidor. "The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion," 26 J. Psychology 259 (1948) Frankfurter, Felix, and Landis, James. "The Business of the Supreme Court at October Term, 1931," 46 Harv. L. Rev. 226 (1932). Greenberg, Jack. "Social Scientists take the Stand: A Review and Appraisal of Their Testimony in Litigation," 54 Mich. L. Rev. 953 (1956). Haight, George I. "The Advocate in Courts in Review," 1940 Wis. L. Rev. 327. Jackson, Justice Robert H. "Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations," 37 A.B.A.J. 801 (1951). Jennings, Justice Newell. "The Argument of an Appeal from the Judicial Point of View," 20 Conn. Bar J. 75 (1946). Longhran, Judge John T. "The Argument of an Appeal in the Court of Appeals," 12 Fordham L. Rev. 1 (1943). Maltbie, Chief Justice William M. "The Oral Argument on Appeal," 11 Conn. Bar J. 163 (1937). Medina, Harold R. "The Oral Argument on Appeal," 20 A.B.A.J. 139 (1943). Miller, Justice Justin. "Oral Argument," 9 D. C. Bar A. J. 196 (1942). Rail, Owen. "Effective Oral Argument on Appeal," 48 111. Bar J. 572 (I960) Roche, John P. "Judicial Self Restraint," American Politi cal Science Review. Vol. 49, (1955). Rutledge, Justice Wiley B. "The Appellate Brief," 28 A.B.A.J; 251 (1942). 543 Thacher, Judge Thomas D. "The Presentation of an Appeal," 18 N. Y. State Bar A. Bulletin 219 (1946). "The Effects of Segregation and the Consequences of Deseg regation: A Social Science Statement," 37 Minn. L. Rev. 427 (1953). Time Magazine. Vol. 86, No. 17, Oct. 22, 1965- Waite, Edward P. "Race Segregation in the Public Schools," 38 Minn. L. Rev. 612 (1954). Young, Kimball, Review of An American Dilemma by Gunnar Myrdal, American Sociological Review, Vol. IX, 1944, pp. 326-330. Statutory Enactments Civil Rights Act (1866) c. 31, 14 Stat. 27 Civil Rights Act (1870) c. 114, 16 Stat. 140 Civil Rights Act (1875) c. 114, 18 Stat. 335 Cases Cited Berea College v. Kentucky, 211 U. S. 45 (1908) Bolling v. Sharpe,, 347 u . S. 497 (1954) Brown v. Board of Education, 344 U. S. 141 (1952) Brown v. Board of Education, 345 U. S. 972 (1953) Brown v. Board of Education, 347 U. S. 483 (1954) Brown v. Board of Education, 349 U. S. 294 (1955) Browne v. Magdeburger. 86 App. D. C. 173, 182 P. 2d 14 Cl950) Carr v. Corning. 86 App. D. C. 173, 182 P. 2d 14 (1950) Childers v. Childers. 74 Cal. App. 2d 56 (1946) Civil Rights Cases. The. 109 U. S. 3 (1883) Cumming v. County Board of Education 163 U. S. 537 (1896) 544 Dred Scott v. Sandford. 19 How. 393 (1856) Ex Parte Endo. 323 U. S. 283 (1944) Ex Parte Virginia. 100 U. S. 399 (1880) Gong Lum v. Rice. 275 U. S. 78 (1927) Helverlng v. Hallock. 309 U. S. 106 (1940) Hlraba.vashl v. United States. 320 U. S. 81 (1943) Me Cabe v. Atchison, T. and S. F. Ry. Co. 235 U. S. 151 T1914) ------------------------------- McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950) Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) Plessy v. Ferguson, 163 U. S. 537 (1896) Roberts v. City of Boston, 5 Cush. 198 (1849) Sipuel v. Oklahoma. 332 U. S. 631 (1948) Slaughterhouse Cases, The. 16 Wall. 36 (1873) Strauder v. West Virginia. 100 U. S. 303 (1880) Sweatt v. Painter. 339 U. S. 629 (1950) United States v. Lovett. 328 U. S. 303 (1946) Other Sources Briefs filed in the Supreme Court of the United States by Appellants, Appellees, and Amici Curiae, Brown v. Board of Education and Bolling v. Sharpe, October, Term, 1952, and October, 1$$37 (printed.) Constitution of the United States. Fifth, Thirteenth, and Fourteenth Amendments. Personal Letters from Counsel and Amici Curiae in the School Segregation Cases. 1965* Unpublished Material Dickens, Professor Milton. Unpublished lecture materials, University of Southern California, 1965. (mimeo graphed. ) Peters, Justice Raymond E. "Preparation- and Writing of Briefs on Appeal and the Art of Oral Presentation." University of Southern California, September, 1964. (mimeographed.) Transcript of Oral Arguments in the Supreme Court of the United States, Brown v. Board of Education and Bolling v. Sharpe. October Term, 1952 and October Term, 1953. (xeroxed.) Williams, Jamye Coleman. (Top of p. 11. Chap. I disserta tion)

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Creator Schwartz, Ruth Evelyn (author)

Core Title A Descriptive Analysis Of Oral Argument Before The United States Supreme Court In The School Segregation Cases, 1952-1953

Degree Doctor of Philosophy

Degree Program Speech

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,Theater

Language English

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Advisor Dickens, Milton (committee chair), [Williams, Arnold] (committee member), Fisher, Walter R. (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c18-117853

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