Reply Brief for the Appellant in Nos 1,2 and 3 and for — Brown v. Board of Education

7

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— | Hi ROLD B. WILLEY, Clerk

——_

Supreme Court of the United States

October Term, 1954

No. 1

OLIVER BROWN, er aL. -tppellants,

VS

BOARD OF EDUCATION OF TOPEKA, er av, Appellees.

No. 2

HARRY BRIGGS, JR., Er av., Appeilants,

Vs

R. W. ELLIOTT, er au, Appellees.

No. 3

DOROTHY E. DAVIS, er ai, Appellants,

vs.

COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY,

VIRGINIA, et av. Appellees.

No. 5

FRANCIS B. GEBHART, et av., Petitioners,

VS.

ETHEL LOUISE BELTON, et at., Respondents.

AprpeEALS From THE Uwnirep States District Courts FOR THE DISTRICT OF

KANSAS,

THE EaAsTeERN Districr oF SoutTH CAROLINA AND THE [EASTERN

DISTRICT OF VIRGINIA, AND ON

SUPREME Court oF DELAWARE, RESPECTIVELY

PETITION FoR A Writ oF CERTIORARI TO THE

REPLY BRIEF FOR APPELLANTS IN NOS. 1, 2

AND 3 AND FOR RESPONDENTS IN NO. 5 ON

FURTHER REARGUMENT

CHARLES L. BLACK, JR,

FELWOOD H. CHISOLM,

WILLIAM T. COLEMAN,

CHARLES T. DUNCAN,

GEORGE FE. C. HAYES,

LOREN MILLER,

WILLIAM R. MING, JR.

CONSTANCE BAKER MOTLEY,

JAMES M. NABRIT, JR,

LOUIS H

POLLAR,

FRANK ID REEVES,

TOHN SCOTT,

JACK

I:

’

WEINSTEIN

‘ f ( COUNSEL

JR.

HAROLD BOULWARE,

ROBERT L. CARTER,

JACK GREENBERG,

OLIVER W. HILL,

THURGOOD MARSHALL,

LOUIS L. REDDING,

SPOTTSWOOD W. ROBINSON, FIT,

( HARLES S. SCOTT,

.tttornevs for Appellants ‘n Nos. 1,

>

2. 2 and fer Respondents m No. 5

TABLE OF CONTENTS

PAGE

ARGUMENT:

Briefs Filed by Appellees and State Attorneys

General Do Not Offer Any Affirmative Plan for

Desegregation but Are Merely Restatements of

Arguments in Favor of Interminable Continua-

tion of Racial Segregation ................... 2

Opinion Polls Are Immaterial to the Issues Herein

and Do Not Afford Any Basis to Support An

Argument that a Gradual Adjustment Would

ee ee SNe one dcp eke bree eeueeraass 7

‘The Wide Applicability of the Decision in These

Cases Should Not Affect the Relief to Which

Apoeanta Are TMOG 6.65 k oes avon heck eis 10

Average Differences in Student Groups Have No

Relevance to the Individual Rights of Pupils:

Individual Differences Can Be Handled Admin-

istratively Without Reference to Race ........ 12

Official Reactions in States Affected by the May

17th Decision Make it Plain that Delay Will De-

tract From Rather Than Contribute to the

‘‘Eiffectiveness’’ of the Transition to Desegre-

ST ED. gb. Kkuwiktatanndea pyiueede as uence 15

se ee eee ee ea bah os 17

Table of Cases

Buchanan v. Warley. 245 U.S. 60, 80 ............ 7

Irvin v. State, 66 So. 2d 288, 290-292, cert. denied

346 U.S. 927, reh. denied 347 U.S. 914 0.2.02... Ss

MeLaurin v. Oklahoma State Regents, 3839 U.S. 637 1]

li

PAGE

Sipuel v. Board of Regents, 332 U. 8. 631 .......... 11

eee ©, semreee, mee BW. . BOD onc cv ccerceess 11

Steiner v. Simmons, 111 A. 2d 574 (Del. 1955), rev’g

Se ie OP Oe COs BED wine vce ec accvvsvevecces 17

Sweatt v. Painter, 339 U. S. 629 ................. 9,10, 11

Other Authorities

Allport, The Nature of Prejudice (1954) ........ 13

Buchanan, Krugman and Van Wagenen, An Inter-

national Police Force and Public Opinion 13

ES et ee eck pu heb aevieeaes 8

Comas, Racial Myths, UNESCO (1951) .......... 13

Doob, Public Opinion and Propaganda 151 (1948) .. 8

Hartley and Hartley, Fundamentals of Social Psy-

Ba a ae ae ee 8

Hyman, Do They Tell The Truth?, 8 Public Opinion

Quarterly 557-559 (1944) .......... cee eee ween 8

Jenkins and Corbin, Dependability of Psychological

Brand Barometers II, The Problem of Validity, 22

Journal of Applied Psychology 252-260 (1938) .. 8

Johnson, ‘‘Public Higher Education in the South’’.

23 Journal of Negro Education 317 (1954) ...... i)

Kirkpatrick, Philosophy of Education 399-433 (1951) 13

Klineberg, Race and Psychology, UNESCO (1951) 13

Klineberg, Race Differences: The Present Position of

the Problem, 2 International Sociai Science Bul-

YO a ee eee Ca eben esse theeow ewe 13

lil

La Piere, Attitudes vs. Actions, 13 Social Forces 230-

ee ee dss Ce bk awed eb eeu wa

Link and Freiberg, The Problem of Validity vs. Re-

liability in Public Opinion Polls, 6 Publie Opin-

ion Quarterly 87-06 (1942) ..... 0s. ccc seeeees

Montague, Man’s Most Dangerous Myth: The Fal-

8 & eB Be | ae eee ee ee

Montague, Statement on Race, The UNESCO State-

ment by Experts on Race Problems 14-15 (1951)

New York Post, March 16, 1955, p. 58, ¢. 4 ........

New York Times, April 6, 1955, p. 20, ¢.5 ..........

Social Science Research Council, Committee on Anal-

ysis of Pre-election Polls and Forecasts 302-303

heat yes

Southern School News, Sept. 3, 1954, p. 9, ¢. 2-5...

Southern School News, Sept. 3, 1954, p. 7, ¢. 3: p. 12,

ME cera re bees idan enh ss cheere

Southern School News, Oct. 1, 1954, p. 18, ¢.5 ......

Southern School News, Oct. 1, 1954, p. 10, ¢. 1-5;

eT 8 er er ree er eee

OE SERS gi pe rg re ey ee ae

Southern School News, Nov. 4, 1954, p. 12, ¢. 1-5 ....

Southern School News, Nov. 4, 1954, p. 11, e¢. 4-5;

cists cu yet hvee ad eieh kEKW Re eR dw as Ce we

EMESTOL eeree Ser er te ec,

Southern School News, Dee. 1, 1954, p. 9, &. 1-3: p. 12,

DO Seta ie eta ee eee EN KSA ENTE NREE OR ee oe

PAGE

16

16

iv

PAGE

Southern School News, Jan. 6, 1955, p. 11, ¢. 1;

PM MF 25 dosh Cdeahs kad de VASWKe Reed ckeseudes 15

Southerr School News, Jan. 6, 1955, p. 10, ¢. 1-2;

Ee re Peery ee erp PT eee TTT EEE er 16

Southern School News, Feb. 3, 1955, p. 15, ¢. 1-5 .... 15

Southern School News, Feb. 3, 1955, p. 3, ¢. 2-4;

*S Fes Ss kB Peepers ree ey yr Pero Tee 16

Southern School News, March 3, 1955, p. 16, ¢. 1;

is a ob kee eae: « - eka pas heb snes ee bse tas 16

IN THE

Supreme Court of the United States

October Term, 1954

ray

VW

No. 1

Outver Brown, ef al., Appellants,

Vs.

Boarp or Evucation oF Topeka, et al., Appellees.

No. 2

Harry Brices, Jr., et al., Appellants,

vs.

R. W. Exuiort, et al., Appellees.

No. 3

Dorotny E. Davis, ef al., Appellants,

VS.

County Scuoot Boarp oF Prince Epwarp County,

Virainia, et al., Appellees.

No. 5

Francis B. Gepuart, et al., Petitioners,

vs.

Eruet Lovise Betton, et al., Respondents.

AppeaLts From tHE Unitrep States District Courts

FOR THE District of Kansas, THE EastTerN DistTRICT OF

SoctH CAROLINA AND THE Eastern District oF VIRGINIA,

AND on Petition ror a Writ oF CERTIORARI TO THE

SuprREME Court oF DeLaware. RESPECTIVELY.

iy

Vv

REPLY BRIEF FOR APPELLANTS IN NOS. 1, 2

AND 3 AND FOR RESPONDENTS IN NO. 5 ON

FURTHER REARGUMENT

The briefs filed on this reargument by appellees and

amici curiae (with the exception of those in Nos. 1 and 5,

and the brief filed on behalf of the Attorney General of

The United States) are similar in subetance despite some

differences in details. Our reply to them can, therefore,

be made in one joint brief.

ARGUMENT

Briefs Filed by Appellees and State Attorneys General

Do Not Offer Any Affirmative Plan for Desegregation

but Are Merely Restatements of Arguments in Favor

of Interminable Continuation of Racial Segregation.

In our Brief on Further Reargument, we stated: ?

Much of the opposition to forthwith desegrega-

tion does not truly rest on any theory that it ts

better to accomplish it gradually. In considerable

part, if indeed not in the main, such opposition stems

ie Ny desire that desegregation not be undertaken

at ail.

Similarly, the briefs filed at this time, both by appellees

and state attorneys general seems to be directed against

ending racial segregation in our time, rather than toward

desegregation within a reasonable time. First, these briefs

do not in fact offer any affirmative plan or elements of

such a plan for accomplishing the task of desegregation.

Secondly, and equally significant, the main reasons now

proffered in support of indefinite delay are identical with

arguments previously advanced for denying relief on the

merits.

This Court has decided that racial segregation is un-

constitutional—that it is a practice, moreover, which has

! Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in

No. 5 on Further Reargument, 1954 Term, p. 31.

such effects on its victims that it can only be deseribed as

abhorrent. Yet, in answering questions 4 and 5, propounded

by the Court, the States do not even get around to what

must, in the light of that decision, be the main problem

underlying those questions: How can this practice be most

expeditiously done away with? Reasons for delay, which

would seem to occupy at best a subsidiary position, are

the sole preoccupation of state counsel, and the affirmative

problem gets virtually no attention.’

The brief of the Attorney General of Florida does con-

tain a Point entitled ‘‘Specific Suggestions to the Court in

lormulating a Decree.’’* But, the effect of the suggested

pian * would be to subject the constitutional rights of Negro

children to denial on the basis of such a variety of intang-

‘ble faetors that the plan itself cannot be seriously regarded

as one for implementing the May 17th decision.

Each individual Negro child must, under the Florida

plan, petition a court of the first instance fer admission

to al unsegregated school, after exhausting his adminis-

trative remedies. It is up to him to establish to that

court’s satisfaction that there exists no ‘‘reasonable

grounds’’ for delay in his admission. ‘‘Reasonable

grounds’’ include lack of a reasonable time to amend the

state school laws, good faith efforts of the school board

in promoting citizens’ educational committees, adminis-

trative problems, and ‘‘evidence of . .. a strong degree

of sincere opposition and sustained hostility’? [emphasis

supplied] giving the school board ground to believe that

’

2 It is true that Delaware and Kansas catalogue the progress they

have made thus far in accomplishing integration. But both states

plead for delay without offering any valid reasons therefor.

* Brief of the Attorney General of the State of Florida as ainicus

curiae, pp. 57-65. Hereinafter, citations to briefs of appellees and

amet curtae will be abbreviated. See, e.g.. fn. 3, infra.

* Set out commencing at p. 61 of the Florida Brief.

4

admission of the applicant would ‘**. . . create emotional

responses among the children which would seriously inter-

fere with their education.’’ In other words, the applicant ‘s

right is to be postponed until everything seems entirely

propitious for granting it. It is submitted that this is not

a plan for granting rights, but a plan for denying them

just as long as can possibly be done without a direct over-

ruling of the May 17th decision.

Lest there be any doubt about this, the final criterion

for admission to unsegregated schooling should be quoted: °

(6) Evidence that the petitioner’s application

was made in good faith and not for capricious

reasons. Such evidence should demonstrate:

(a) That the petitioner personally feels that he

would be handicapped in hts education, either

because of lack of school plant facilities or

psychological or sociological reasons if his

application for admission is denied.

(b) That the petitioner is not motivated in his

application solely by a desire for the advance-

ment of a racial group on economic, social or

political grounds, as distinguished from his

personal legal right to equality in public

school education as guaranteed by the 14th

Amendment. This distinction should be care-

fully drawn [emphasis supplied].

Where the devisers of a plan are disposed to characterize

opposition to desegregation as ‘‘sincere’’ and reasons for

desiring admission as ‘‘capricious’’, we cannot be surprised

at a rather peculiar procedural consequence of the dispensa-

tion they set up. The ‘* petitioner’’, if he is to make timely

application, exhaust his administrative remedies, and allow

> Florida Brief, p. 63.

time for appeal, will have to draw this fine distinction at

about four years of age, if he is to start the first grade in

au desegregated school. Out of the meuths of babes and

sucklings will have to come a wisdom in self-analysis which

surely has never in the history of this country been required

of any applicant for relief from the denial of a personal

constitutional right. The Florida Brief is no real exeep-

tion to the statement that none of the States has offered

any plan for actually implementing the decision of this

Court. .

The quality and thrust of the reasons now advanced

for delay may best be evaluated by noting that (except

for those that deal with purely administrative matters

obviously requiring little time for solution) they are argu-

ments which were advanced at an earlier stage in this

litigation as grounds for denying relief on the merits,

and now, under slightly altered guise, they walk again

after their suposed laying to rest on May 17. Thus, the

impossibility of procuring community acceptance of de-

segregation, urged earlier as a ground for decision on the

merits,” now turns up as an argument for indefinite post-

ponement * with no convincing reasons given for supposing

that community attitudes will change within the segregated

pattern.

The prediction that white parents will withdraw their

children from public schools is repeated, with the implied

hope, no doubt, that at some remote date they will have

attained a state of mind that will result in their leaving

their children in sebool. ‘‘Racial tensions’’ are again

* South Carolina Brief (1952) p. 27. Cf. /d. at p. 35; Virginia

Brief (1952) pp. 24-25.

7 Virginia Brief (1954) p. 13; Delaware Brief (1954) pp. io, 25,

Florida Brief (1954) p. 201 ff.: Texas Brief (1954) pp. 16-17,

North Carolina Brief (1954) pp. 7-8

“Compare Florida Brief (1954) pp. 26-27 and North Carolina

trie? (1954) pp. 36-37 with Virginia Brief (1952) p. 30.

predicted.” Negro teachers may lose their jobs.'’ Vio-

lence is warned of.'' The people and the legislature will

abolish the school system or decline to appropriate money

for its support.'-

All these are serious matters, but we have elsewhere

shown solid reason for believing that those dire predic-

tions, one and all, are unreliable. There is no reason for

upposing that delay can minimize whatever unpleasant

consequences might follow from the eradication of this

great evil. Here, however, the point is that, where these

arguments are resuscitated as grounds for delay, the in-

ference is that their sponsors favor delay as long as pres-

ent conditions prevail—that, in other words, they now

want to delay desegregation just as long + s the conditions

exist which they formerly regarded as afficient grounds

tor imposing segregation as a matter of legal right. The

distinction is too fine to make such practical difference,

either te the’ Negro child who is growing up or to this

Court. \

That it is ‘opposition to the principle of the May 17th

decision that animates these briefs is made clear by noting

that the equality of schools, Plessy style, is now being

urged as a ground for delay.'* Nothing could make it

* Compare Florida Brief (1954) p. 95 with Virginia Brief (1952)

p. 27.

' Compare Florida Brief (1954) pp. 31-32; North Carolina

Brief (1954) pp. 24-25; and Texas Brief (1954) pp. 10-11, with

Virginia Brief (1952) p. 31.

'! Compare North Carolina Brief (1954) p. 37 and Florida Brief

(1954) p. 25 with South Carolina Brief (1952) p. 27.

‘* Compare North Carolina Brief (1954) p. 36; Virginia Brief

(1954) p. 15; and Arkansas Brief (1954) pp. 7-8 with South Caro-

lina Brief (1952) p. 27.

'3 Compare North Carolina Brief (1954) pp. 25-35, 43: Texas

Brief (19545 pp. 2-42 and Maryland Brief (1954) p. 10 with Vir

vinia Pref (1952) pp. 18-19 and South Carolina Brief (1952) pp.

8-9.

\

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po

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the

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clearer, moreover, that many responsible officials, taking a

realistic view, wil not regard the ‘tseparate but equal’’

doctrine as abolished until this Court orders its abandon-

ment in praetice. Most significant here is the amicus curiae

brief of the Attorney General of Texas which, after mak-

ing a straight-out Plessy argument, continues with the

statement: ‘*Hawever, if the occasion arises whereby we

are compelled to abolish segregation in Texas, it should be

a gradual adjustment in view of the complexities of the

problem’’ (p. 4).

Opinion Polls Are Immaterial to the Issues Herein

and Do Not Afford Any Basis to Support An Argu-

ment that a Gradual Adjustment Would Be

More Effective.

Several of the briefs filed herein refer to polls of pub-

li¢ opinion in their respective States in support of argu-

iments to postpone desegregation indefinitely.'* These

polls appear to have been made for the purpose of sampling

opinions of various groups within the State as to whether

they approved of the May 17th decision and whether they

thought it could be enforced immediately without friction.

The information as to racial hostility obtained from

these polls is indecisive of the issues before this Court.

In Buchanan v. Warley, 245 U.S. 60, 85, this Court stated:

That there exists a serious and difficult vroblem

arising from a feeling of race hostility which the law

is powerless to control, and to w hich it must give

au measure of consideration, may be freely admitted.

But its solution cannot be promoted by depriving

citizens of their constitutional rights and privi-

leges.

Texas Brief, pp. 10-17: Virgimia Brief pp. 13-14: North Caro

3

lina Brief pp. 7-9; klorida Brief pp. 23-24. 108 ff: Delaware Brict

p. 12.

8

We believe the same answer should be given to any sugges-

tion that the enforcement of constitutional rig ‘its be de-

ferred to a time when it will have uniform public accept-

ance.

Even if relevant, results of polls are often not conclu-

sive. For example, the Florida survey polled eleven

‘‘leadership’’ groups. These groups give evidence of a

very high degree of ‘‘willingness’’ to comply. Although

peace officers are greatly opposed to desegregation (Table

5, p. 138), only two of the eleven groups would not posi-

tively comply, and in those cases there is a very even divi-

sion (Table 4, p. 189). Overvll, six of the eleven groups

are not opposed to the decision (Table 3, p. 188); 84.5%

of white principals and supervisors who, would be charged

with the duty of implementation, would comply (Table 4,

p. 139). A majority of all groups expect neither mob vio-

lence nor ‘*serious violence’’ (Table 5, p. 140).

Moreover, such polls are not a valid index of how the

individuals questioned will in fact act in the event of

desegregation. Modern psychological research shows that,

especially in the case of broad public issues, many persons

simply ‘‘do not follow through even on actions which they

say they personally will take in support of aa opinion.’’

15 BUCHANAN, KRUGMAN AND VAN WAGENEN, AN INTERNA-

TIONAL PoLIcE Force AND Pusiic Opinion 13 (1954). For other

studies dealing with the discrepancy between verbal statements

and actions, see LINK AND FREIBERG, “THE PROBLEM OF VALIDITY

vs. RELIABILITY IN PuBLIC Opinion Po ts”, 6 PuBLic OPpiINion

QUARTERLY 87-98, esp. 91-92 (1942); JENKINS AND Corsin,

“DEPENDABILITY OF PSYCHOLOGICAL BRAND BAROMETERS IJ, THE

PROBLEM OF VALIDITY”, 22 JOURNAL OF APPLIED PsycHuoLocy 252-

260 (1938); Hyman, “Do TuHey Teit THE TrutH?”, 8 Pustic

OPINION QUARTERLY 557-559 (1944); Soctat SciENCE RESEARCH

CounciL_, COMMITTEE ON ANALYSIS OF PRE-ELECTION POLLS AND

Forecasts 302-303 (1949); La Prere, “Arritures vs. Actions”,

13 Sociat Forces 230-237 (1934); Doos, Pustic Opinion aNnp

PropaGANDA 151 (1948); HartLey AND Hartley, FUNDAMENTALS

cF Sociar. Psycnotocy 657 (1952). See also Irvin v. State, 66 So.

2d 288, 290-292 cert. denied 346 U.S. 927. reh. denied 347 U. S.

914.

9

The Attorney General of Texas sets out in his brief

in these cases a survey by the ‘‘Texas Poll’? showing 71%

disapproval of the May 17th decision and 69% approval

of continued segregation notwithstanding this Court’s deci-

sion. It is interesting to note that in Sweat? v. Painter,

339 U. S. 629, respondents included in their brief a sur-

vey made by the same ‘*Texas Poll’? showing that 76%

of all Texans were ‘‘against Negroes and whites going to

the same universities.’’ However, this Court ordered

Sweatt admitted to the University of Texas. He and other

Negroes attended the University.'® Since then Negroes

have been admitted to and are attending this and other

public universities in twelve southern States.'™

Finally, there is nothing to indicate that an extended

delay in ordering the elimination of all segregation will

improve public attitudes or eliminate the objections pres-

ently interposed. Clearly the polls are irrelevant and

should be so treated by this Court.

‘6 Tt is aiso significant that many municipai junior colleges in

Texas have also desegregated their student bodies. See SOUTHERN

Scuoot News, October 1, 1954, p. 13, ¢. 5.

168 JoHNSON, “Pustic Higher Epucation IN THE Sovutn”,

23 JoukNAL Or Necro Epucation 317 (1954), especially at 328

where Dr. Johnson, University of North Carolina Sociologist, con-

concludes :

The transition from complete segregation to some degree of

integration of Negroes into the publicly-supported institutions of

higher learning in the South has already been accomplished in all

except five of the Southern states, and most of this change has

occurred in the brief period, 1948-1953. Despite numerous predic-

tions of violence, this transition has been accomplished without «

single serious incident of interracial friction.

10

The Wide Applicability of the Decision in These Cases

Should Not Affect the Relief to Which Appellants

Are Entitled.

Effort is made throughout the briefs for appellees and

the several attorneys general to balance the personal and

present rights here involved against the large number of

children of both races now attending public school on a

segregated basis. This argument is made for a twofold

purpose: to escape the uniformity of decisions of this Court

on the personal character of the rights involved and,

secondly, to destroy the present character of the right

involved.

Of course, the decision of this Court in the instant cases

will have wide effect involving public school systems of

many states and many public school children. The mere

fact of numbers involved is not sufficient to delay enforce-

ment of rights of the type here involved.'?

On the face of it, their position is both ill-taken and

self-defeating. That it is ill-taken becomes clear when

the suggestion itself is clearly stated; obviously, there is

nothing in mere numerousness as such which has any

tendency whatever to create or destroy rights to efficacious

legal relief. Behind every numeral is a Negro child, suffer-

ing the effects spoken of by the Court on May 17. It isa

manifest inconsequence to say that the rights or remedial

needs of each child are diminished merely because others

17 We put to one side as obviously immaterial the mere technical

character of these suits as class actions under Rule 23(a}(3). Obvi-

ously, the mere joinder of plaintiffs in a spurious class suit for rea-

sons of convenience cannot have any effect on the nature of the rights

asserted or on the availability of normal relief remedy. Whether a

suit is or is not a class action tells us little, in this field of law, as

to the magnitude of the interests involved: Sweatt v. Patnter was

an individual mandamus suit, but the effect of that decision spread

throughout the segregating states.

11

are in the same position. That this argument is self-

defeating emerges when it is considered that its tendency

is simply to establish that we have to do with an evil

atfecting a great many people; presumably, the abolition

of a widespread evil is even more urgent than dealing with

isolated causes of wrongdoing.

This Court has consistently treated the personal rights

of litigants on a personal basis. Every leading case involv-

ing discrimination against Negroes has necessarily and

demonstrably involved large numbers of people; yet this

Court has given present relief on a personal basis to those

who showed themselves entitled to it, without any hint of

the possibility that the rights of citizenship are diminished

because many people are being denied them. The Sweatt,

Sipuel and McLaurin cases and Smith v. Allwright, all, as

was well known to this Court and to the country, involved

not merely the individuals or class-plaintiffs or geographi-

cal subdivision actually before the Court, but also the whole

framework of law school, graduate school or primary elec-

tion segregation. All major constitutional cases involve

large numbers of people. Yet there is not a hint, in words

or in action, in any past case, to the effect that the wide

applicability of a decision was considered material to the

right to relief. It is unthinkable that this Court would

apply any such doctrine to limit the enjoyment of con-

stitutional rights in general; there is no reason for its

making a special and anomalous exception of the case at

bar.

Actually, to point to the vast numbers of people whose

lives will be affected by the relief granted here is only a

diffuse way of raising all the questions as to the conse-

quences of immediate desegregation. We have dealt with

these questions elsewhere. The suggestion that mere

humerousness makes a difference adds nothing new, but

merely serves to confuse the issues by diverting attention

from the extremely personal plight of each ehild, and from

his need for present relief.

Average Differences in Student Groups Have No

Relevance to the Individual Rights of Pupils:

Individual Differences Can Be Handled Adminis-

tratively Without Reference to Race.

Having attempted to subordinate appellants’ personal

and present constitutional rights to an alleged overriding

consideration of the large numbers of people involved,

these briefs for appellees then seek to further limit the

individual rights of Negro students by broad characteriza-

tions of group intelligence, group morality and health.’*

Specifically, it is pointed out that statistics show that on

the average Negro children in segregated schools score

lower on achievement tests and are im general more

retarded culturally than white children. This data, con-

trary to the conclusions advanced thereupon, merely under-

scores and further documents the finding quoted in this

Court’s opinion:

‘Segregation of white and colored children in

public schools has a detrimental effect upon the

colored children. The impact is greater when it

has the sanction of the law; for the policy of separat-

ing the races is usually interpreted as denoting the

inferiority of the Negro group. A sense of in-

feriority affects the motivation of a child to learn.

Segregation with the sanction of law, therefore, has

a tendency to [retard] the educational and mental

development of Negro children and to deprive them

of some of the benefits they would receive in a

racial[ly] integrated school system.”’

We have come too far not to realize that educability

and absorption and adoption of cultural values has nothing

to do with race. What is achieved educationally and cul-

turally, we now know to be largely the result of opportunity

18 North Carolina Brief, pp. 39-41; Florida Brief, pp. 19-21, 189.

13

aud environment.'* That the Negro is so disadvantaged

educationally and culturally in the states where segrega-

tion is required is the strongest argument against its con-

tinuation for any period of time. Yet those who use this

argument as a basis for interminable delay in the elimina-

tion of segregation in reality are seeking to utilize the

product of their own wrongdoing as a /ustification for

continued malfeasance.

Our public school systems have growf and improved as

an American institution. And in evefy community it is

obvious that children of all levels of £ulture, educability,

and achievement must be accounted for within the same

system. In some schoo] systems the exceptional children

are separated from the rest of the children. In others

there are special classes for retarded children, for slow

readers and for the physically handicapped. But these

factors have no relation to race. These are administrati 7e

problems with respect to conduct of the public school.

In the past, large city school systems, North and South,

have had the problem of absorbing children from rural

areas where the public schools and cultural backgrounds

were below the city standards. On ny occasions these

inigrations have been very sudden and in proportionately

very large numbers. This problem has always been

solved as an administrative detail. It has never been either

insurmountable or has it been used as an excuse to force

the rural children to attend sub-standard schools. Simi-

1? KLINEBERG, RACE DIFFERENCES: THE PRESENT PosiITION OF

THE PrRoBLeEM, 2 INTERNATIONAL SociAL SCIENCE BULLETIN 4600

(1950): MontaGueE, STATEMENT ON Race, THE Unesco StTate-

MENT BY EXPERTS ON Race ProsieMs 14-15 (1951): MonrtTacue,

Man's Most DanGerous Mytu: Tut Fat acy or Race 286

(1952); KirKPATRICK, PHILOSOPHY OF Epucation 399-433 (19515.

See KLINEBERG, RACE AND Psycno tocy, Unesco (1951): ALL-

rorT, THE NATURE OF Preyupice (1954); Comas, Racial. Myrtus.

Unesco (1951).

14

larly, large cities have met without difficulty the influx of

immigrants from foreign countries.

Cultural and health standards have always been main-

tained in public schools and there could be no objection to

the continuation of such standards without regard to race.

All social scientists seem to be in agreement that race and

color have no connection whatsoever with a student’s ability

to be educated. Achievement and cultural deficiencies are

nonracial in character, also. Hence these factors in no wise

relate to questions posed as to whether desegregation

should take place immediately or over an extended period.

Perhaps the main reasons for rejecting appellees’ argu-

ment are that the conditions they complain of can never be

remedied as long as segregation in public schools is con-

tinued and these so-called probiems, 7.e., average on achieve-

ment tests, health, ete., are administrative problems which

can be solved by recognized administrative regulations

made to fit the problems without regard to pigmentation

of the skin. It is significant that appellees and the Attor-

neys-General who advance these arguments do not give any

hope to anyone that the continuation of segregated public

education will ever remove these problems which are the

product of this segregation.

On the other hand, appellants have shown in their Brief

on Further Reargument that on the basis of substantial

documented experience: ‘‘There is no basis for the assump-

tion that gradual as opposed te immediate desegregation

is the better, smoother or more ‘effective’ mode of transi-

tion. On the contrary, there is an impressive body of

evidence which supports the position that gradualism, far

froin facilitating the process, may actually make it more

difficult; that, in fact, the problems of transition will be ¢

good deal less complicated than might be forecast by appel-

lees. Our submission is that this, like many wrongs, can

he easiest and best undone, not bv ‘tapering off’ but by

forthright aection’’ (p. 31).

iw tet at 2 fete

15

Official Reactions in States Affected by the May 17th

Decision Make it Plain that Delay Will Detract From

Rather Than Contribute to the “Effectiveness” of the

Transition to Desegregated Schools.

Events occurring in the states affected by the decision

of May 17, 1954, do not support the suggestions of appellees

and amici curiae that further (and limitless) postponement

of relief to Negro children will assure an ‘‘effective’’

adjustment from segregated to non-segregated school

systems. In terms of legislative, executive or adminis-

trative reaction, the southern and border states may now

be grouped in three loose categories:

(1) Those which have not waited for further directions

from the Court, but have undertaken desegregation in

varied measure during the current school year. Typical of

the states falling in this category are Delaware,?° Kansas,?!

Missouri,** and West Virginia.** Although not a state, the

District of Columbia would fall within this group.

(2) Those which have decided to await a decision on

the question of relief but have indicated an intention to

*° Brief for Appellants in Nos. 1, 2 and 3 and for Respondents

in No. 5 on Further Reargument, pp. 4-7; Brief for Petitioners on

the Mandate in No. 3, pp. 10-12.

*1 Brief for Appellants in Nos. 1, 2 and 3 and for Respondents in

No. 5 on Further Reargument, pp. 3-4; Supplemental Brief for the

State of Kansas on Questions 4 and 5 Propounded by the Court,

pp. 13-22; Supplemental rief for the Board of Education, Topeka,

Kansas on Questions 4 and 5 Propounded by the Court, pp. 2-4.

22 SOUTHERN SCHOOL News, September 3, 1954, p. 9, ¢. 2-5; /d.,

October 1, 1954, p. 10, ¢. 1-5; /d., November 4, 1954, p. 12, ¢. 1-5:

fd., December 1, 1954, p. 10, ¢. 1-5; Jd., January 6, 1955, p. 11,

c. 1; /d., February 3, 1955, p. 15, ¢. 1-5.

23 SOUTHERN Scuoot News, Octoher 1, m 66, ¢. 8; 3: id. Janu-

ary 6, 1955, p. 2, ¢. 4-5.

16

obey the Court's directions. Kentucky,?* Oklohoma,®* and

Tennessee ** are among the states in this category.

(3) Those which have indicated an intention to circum-

vent the decision of this Court or iiterminably delay the

enjoyment by Negro children of their constitutionally

protected rights not to be segregated in public schools.

Included in this category are states like South Carolina *

and Mississippi,** which have enacted legislation designed

to nullify any decision of this Court in these cases, and

states like Virginia *® and Florida,*® where either the

governors or special legislative committees studying the

problem have recommended that ‘‘every legal means’’ be

used to preserve segregated school systems.*!

Against this background of state reaction to the deci-

sion of May 17, 1954, it is clear that postponement of relief

will serve no purpose. The states in the first category have

24 SOUTHERN SCHOOL NEws, September 3, 1954, p. 7, c. 3; Id.,

November 4, 1954, p. 16, c. 1; Jd., December 1, 1954, p. 9, c. 1, 3.

25 SouTHERN ScuHoot News, February 3, 1955, p. 10, c. 1-2;

Id., March 3, 1955, p. 16, c. 1; THE New York Times, April 6,

1955, p. 20, ¢. 5.

26 SOUTHERN ScHoot News, October 1, 1954, p. 11, c. 1: /d.,

December 1, 1954, p. 12, c. 4; New. York Post, March 16, 1955,

p. 58, ¢. 4.

27 SOUTHERN ScHoot News, September 3, 1954, p. 12, ¢. 1-2:

Id., February 3, 1955, p. 3, c. 2-4; Jd., March 3, 1955, p. 14, c. 1-3.

28 SOUTHERN ScHoot News, September 3, 1954, p. 8, ¢. 3; /d.,

October 1, 1954, p. 9, c. 4-5; /d., November 4, 1954, p. 11, ¢. 4-5;

Id., January 6, 1955, p. 10, c. 1-2; THe New York Times, April 6,

1955, p. 20, c. 5.

2 SoUTHERN Scuoo. News, February 3, 1955, p. 10, ¢. 4.

30 SOUTHERN ScHoo. News, January 6, 1955, p. 6, ¢. 2.

31 Indeed, Governor Marvin B. Griffin of Georgia has asserted :

“However, if this court is so unrealistic as to attempt to enforce this

unthinkable evil upon us, I serve notice now that we shall resist it

with all the resources at our disposal and we shall never submit to

the proposition of mixing the races in the classrooms of our schools.”

17

already begun to implement this Court’s decision and any

delay as to them may imperil the progress already made.*?

The states in the second category bave indicated a willing-

ness to do whatever this Court directs and there is cer-

tainly no reason for delay as to them. The probable effect

of delay, as to states in the third category, must be evalu-

ated in the light of their declared intentions; we are justi-

fied in assuming that it would have no affirmative effect,

but would merely provide additional time to devise and

put into practice schemes expressly designed to thwart

this Court’s decision.

Conclusion

Appellants recognize that the problems confronting this

Court, as it turns to the implementation of its decision in

these cases, are of primary magnitude. Their high serious-

ness is enhanced by the fact that sovereign states are in

effect, though not formally, at the bar and that the evil to

which the Court’s decree must be directed is ne transitory

wrong but is of the essence of the social structure of a

great section of our nation.

Yet, it should be borne in mind that the very magnitude

of these problems exists because of the assumption, tacitly

indulged up to now, that the Constitution is not to be

applied in its full force and scope to all sections of this

country alike, but rather that its guarantees are to be

enjoyed, in one part of our nation, only as molded and

modified by the desire and customs of the dominant com-

ponent of the sectional population. Such a view, however

expressed, ignores the minimum requirement for a truly

national constitution. It ignores also a vast part of the

32 See, ¢.g., Steiner v. Simmons, 111 A. 2d 574 (Del. 1955),

rev'g. 108 A. 2d 173 (Del. 1954). There the Supreme Court re-

versed a chancery court determination that forthwith desegregation

was proper under the decision of this Court of May 17, 1954.

18

reality of the sectional interest involved, for that interest

must be composed of the legitimate aspirations of Negroes

as well as whites. It certainly ignores the repercussions

which any reluctance to forthrightly enforce appellants’

rights would have on this nation’s international relations.

Every day of delay means that this country is failing to

develop its full strength.

The time has come to end the division of one nation into

those sections where the Constitution is and those where

it is not fully respected. Only by forthright action can the

country set on the road to a uniform amenability to its

Constitution. Finally, the right asserted by these appel-

lants is not the only one at stake. The fate of other great

constitutional freedoms, whether secured by the Fourteenth

Amendment or by other provisions, is inevitably bound up

in the resolution to be made in these cases. For delay in

enforcement of these rights invites the insidious prospect

that a moratorium may equally be placed on the enjoyment

of other constitutional rights.

in disposing ef the great issues before it, this Court

should do no less than order the abolition of racial segrega-

tion in public education by a day certain, as heretofore set

forth in Appellants’ Brief on Further Reargument.

Respectfully submitted,

HAROLD BOULWARE,

ROBERT L. CARTER,

JACK GREENBERG,

OLIVER W. HILL,

THURGOOD MARSHALL,

CHARLES L. BLACK, JR., LOUIS L. REDDING,

ELWOOD H. CHISOLM, SPOTTSWOOD W. ROBINSON, III,

WILLIA*. T. COLEMAN, JR., CHARLES S. SCOTT,

CHARL: T. DUNCAN, Attorneys for Appellants im Nos. 1,

GEOL i... C. HAYES, 2, 3 and for Respondents m No. 5

LORIN MILLER,

Wl. L'AM R. MING, JR.,

CONS? ANCE BAKER MUTLEY,

JAMES M. NABRIT, JR,

LOUIS H. “OLLAK,

FRANK D. KEEVES,

JOHN SCOTT,

JACK B. WEINSTEIN,

of Counsel.