Chapter XIV: Part III: Prayer of the Petitioner (1)

I had not intended to write a “Part III” for this book. The object was to put forth a brief for the South in the single narrow field of racially separate public schools; my thought was to summarize and argue the law and the evidence of _Brown_ v. _Board of Education_ as the South views them, and to leave such issues as “sit-ins,” and voting rights, and the Negro’s future for another day. Yet a familiar part of the pleading in almost any case is the prayer of the petitioner, and there is something more to be said for the South in that hypothetical role.

Patience, the South would ask of its adversaries: Be patient; be tolerant of imperfection; be mindful that in these difficult areas of race and race relations, wisdom and virtue do not reside exclusively in the North, nor sin and ignorance exclusively in the South. The white man most surely has been at fault; that is conceded. But in his own way, the black man has been at fault too. And in neither racial camp can these faults be corrected in the twinkling of a generation.

The apostles of instant innovation, crying zealously for change, do not comprehend the elemental nature of the forces they are dealing with. “All is race,” said Disraeli in _Tancred_; “there is no other truth.” The earliest history of man reflects an awareness of racial distinctions; in one fashion or another, discrimination has existed through all recorded time, and “prejudice,” if you please, like the poor, has been with us always. It exists among the Negro people themselves. It exists around the world, and may be seen in especially cruel and virulent forms in some of those nations said to be so terribly offended by the manifestations of segregation that remain in the American South. The beam in the eye of Herman Talmadge is small against the mote in the eye of Mr. Nehru. The Old World has lived with these problems several millennia longer than the New, but it has solved them not better; in truth, it has solved them much less well, and in most cases, it has not solved them at all.

As a creature of the law, racial segregation in the United States is dead. The voices once confidently raised in the South, crying that the court would reverse itself in time, have all but died out now. The court will not reverse itself. On February 26, 1962, a _per curiam_ opinion rebuked a Mississippi Federal court in icy terms: “We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. The question is no longer open; it is foreclosed as a litigable issue.” (_Bailey_ v. _Patterson_, 30 LW 4164.) Similarly, the court has plunged far beyond the reasoning it advanced in _Brown_ as a justification for prohibiting segregation in the schools; the hearts and minds of children, the importance of education, and the intangibles of a classroom do not figure at all in cases that involve golf courses, courthouse cafeterias, and the rest rooms of public buildings. Many staunch Southerners, declaring themselves unwilling to surrender, do not realize that as a matter of law, the war is over. There is now not the slightest possibility of a constitutional amendment to undo what the court did; the Congress will never pass a law that sanctions segregation in a public institution; the court is unanimous in its resolution, and some of its members are young. The Southern State that puts reliance hereafter in any law requiring racial separation is relying upon a vain and useless thing. We should be better off, as a matter of law, if Southern legislatures would go through their Codes with an art gum, erasing the word “Negro” wherever it appears. Statutory defenses against segregation, apart from any remaining value they may have in obtaining the law’s delays, are useless.

These are harsh truths for the South, but the South would do well to grasp them; once understood, they suggest a course of events in which accommodation may be found within the broad structure of a voluntary society. Ovid is sufficient authority for the maxim that nothing is stronger than custom; and by relying upon custom, and freedom, and precepts of the law as yet uncorrupted by the court, the South--and here I mean the white South and the Negro South alike--can discover some room to turn around in.

Virginia has pointed a way toward such an accommodation, so far as education is concerned, in its freedom-of-choice program. Under an act of the General Assembly of 1958, every child in Virginia has a _right_ to choose between attending a public school or a nonprofit, nonsectarian private school. The law has nothing to do with segregation or desegregation. The modest tuition grants provided in the law (in no case is a grant higher than the local per-pupil cost in public schools) are intended to represent each child’s equal share in a total appropriation for purposes of education, and the State stands indifferent to the child’s way of spending it: Public or private, it is all the same to the Commonwealth, so long as the child is schooled.

The freedom-of-choice plan is working now, harmoniously and effectively, in such areas of Virginia as Norfolk, Charlottesville, and Front Royal. In each of the localities, the public schools are desegregated; in each of the localities, good private schools are operating. Some white families have made one choice, some another. In a number of cases, white children living in Albemarle County and Norfolk County have obtained county tuition grants in order to attend the desegregated public schools of neighboring Charlottesville and Norfolk city. The State raises no objection. This is the students’ right.

The private schools now operating in Virginia have limited their admissions, to the best of my knowledge, to white pupils only. This condition may change in time; nothing prevents the organization of nonprofit schools for Negroes only, or for Negroes and whites together. In any event, the right of any group of parents to found a school to their taste would appear beyond successful challenge. “The most natural right of man,” said Tocqueville, “next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to be almost as inalienable in nature as the right of personal liberty. No legislature can attack it without impairing the foundations of society.”

Virginia is feeling its way carefully with the freedom-of-choice program. In the 1960-61 school year, 8127 pupils (or a little less than 1 per cent of the 874,000 children in public schools) gave up their right to attend a public school and chose, instead, to exercise their rights under the 1958 law. They obtained grants amounting to $1.8 million out of total school spending (including sums for capital outlays) of some $290 million. Public school administrators, many of whom are fearful of private school competition and jealously opposed to the program, tend to regard the grants as a net cost--as something taken away from them. Plainly this is not true. About $200,000 in grants were taken by pupils who applied the sums to tuition costs in neighboring public schools, as in Charlottesville and Norfolk; other outlays were offset by the simple absence of the pupils from public schools--the State did not have to build classrooms or hire teachers to teach them. When it is kept in mind that the nonprofit private schools must meet their own capital costs from contributions and endowments, the prospect of an ultimate saving to the Commonwealth becomes evident. These construction costs are a part of the price a free people should be permitted to pay for freedom to conduct their lives as they wish. It is inconceivable that Federal courts should outlaw this voluntary, nondiscriminatory plan as a mere subterfuge or circumvention of the _Brown_ decision. It emphatically is not.

In _Pierce_ v. _Society of Sisters_ (268 U. S. 510) the Supreme Court laid down the principles on which Virginia is relying. The opinion held unconstitutional an Oregon act of 1922 requiring children of that State to attend public schools and public schools only. A private military academy and a Catholic parochial school complained that the law violated the right of parents to choose schools for their children where the pupils would receive the sort of training the parents wished them to have; beyond that, the law violated the right of private schools and teachers to engage in a useful and lawful business or profession.

A unanimous court, speaking through Mr. Justice McReynolds, accepted the plaintiffs’ position entirely. Oregon’s law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Their rights in this regard are guaranteed by the Constitution and may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

As Douglas said in _Lerner_ v. _Casey_ (357 U. S. 468), the liberties guaranteed to the citizen by the First and Fourteenth amendments include “the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation.” And in a case upholding the right of Negroes to associate, Mr. Justice Harlan expressed for the court the same view that white parents take in forming a private school for their children: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Fourteenth Amendment.” (_NAACP_ v. _Alabama_, 357 U. S. 449.)

The high court’s opinion in the _School Segregation Cases_ did nothing to interfere with these basic concepts of individual freedom of action in areas of education. It is important to understand, the Fourth U. S. Circuit Court of Appeals has said, “exactly what the Supreme Court has decided [in _Brown_] and what it has not decided in this case”:

It has not decided that the Federal courts are to take over or
regulate the public schools of the States. It has not decided that
the States must mix persons of different races in the schools or
must require them to attend schools, or must deprive them of the
right of choosing the schools they attend. What it has decided,
and all that it has decided, is that a State may not deny to any
person on account of race the right to attend any school that it
maintains. This, under the decision of the Supreme Court, the
State may not do directly or indirectly; but if the schools which
it maintains are open to children of all races, no violation of
the Constitution is involved even though the children of different
races voluntarily attend different schools, as they attend
different churches. Nothing in the Constitution or in the decision
of the Supreme Court takes away from the people the freedom to
choose the schools they attend. The Constitution, in other words,
does not require integration. It merely forbids discrimination.
It does not forbid such segregation as the result of voluntary
action. It merely forbids the use of governmental power to enforce
segregation. The Fourteenth Amendment is a limitation upon the
exercise of power by the state or State agencies, not a limitation
upon the freedom of individuals.

This interpretation by an exceptionally able appellate court offers the South, if only the South will accept it (and if our more rabid and influential friends in the North will abate their impatient demands), some basis for a tolerable way of life. In its immediate application, the Supreme Court’s decision in the four suits decided by _Brown_ was not, of course, “the supreme law of the land.” It was, as every court opinion must be, simply the law of the case, disposing of the controversies between the named plaintiffs and the named defendants. Even though such suits are “class actions,” the class in each case is limited by such facts as those of geography; a court order directed against Clarendon County does not require the superintendent of schools in adjoining Sumter County to do anything. Thus, under well-accepted principles of law, the counties and cities of the South that are not under court order stand under no legal obligation to alter their traditional school policies. No law or court order requires them to integrate; no law or court order requires them affirmatively to take any action. True, if a point is made of it, and formal complaint of discrimination is filed, local school officials must then yield to the principles laid down by the Supreme Court; they can yield voluntarily, or they can go through the motions of a predictable court proceeding, but they cannot deny the child by reason of his race the right to attend any public school under their supervision.

This deliberate, unhurried view of the school problem tends to madden the professional integrationist. He looks at the progress of desegregation in the South, eight years after _Brown_, and apart from the border States he sees:

---------------------------------------------------------------
DESEGREGATION OF PUBLIC SCHOOLS,
ELEVEN SOUTHERN STATES, MAY 17, 1962
---------------------------------------------------------------
_Negroes in Schools
_Enrollment_ With Whites_
_State_ _White_ _Negro_ _Number_ _Per cent_

Alabama 523,000 276,000 0 0.000
Arkansas 320,000 109,000 151 0.139
Florida 927,000 242,000 648 0.268
Georgia 642,000 303,000 8 0.003
Louisiana 450,000 295,000 12 0.004
Mississippi 294,000 287,000 0 0.000
North Carolina 787,000 333,000 203 0.061
South Carolina 364,000 265,000 0 0.000
Tennessee 663,000 155,000 1,167 0.750
Texas 1,892,000 301,000 4,000 1.330
Virginia 657,000 217,000 536 0.247
-----------
Source: Southern School News, May 1962.
---------------------------------------------------------------

These figures arouse the South’s critics, but another fact contributes more significantly to their exasperation: The people of the South, white and Negro together, continue to dwell amiably side by side. Except where hired missionaries from the NAACP can stir up a lawsuit, agitation for an end to school segregation ranges from small to nil. The Southern States have put these past eight years to good use in pouring a fortune into equalization of Negro school facilities. Old patterns persist because many Negro families, to the disgust of the U. S. Civil Rights Commission, find the patterns not intolerable. In Virginia, for example, Negro parents know that they can petition successfully for admission of their children to the nearest “white” school; local officials no longer even resort to court delays. But three years after collapse of Virginia’s massive resistance, fewer than one-quarter of 1 per cent of the Negro parents have taken the trouble to do so.

This slow path toward evolutionary change should commend itself to reasonably minded men. Whatever violence to constitutional law was done by the _Brown_ decision, it is done; we ought not to condone it, defend it, rationalize it, or forgive it, but we ought not to pretend that it never happened. We of the South have to live with these new legal principles, and accommodate our society to them. So far as the education of children is concerned, this can be done (1) by continuing to provide the best possible schools our resources can provide; (2) by continuing to separate children by race, in the certain conviction that such basic pupil assignments violate no law or court order, and are in accord with community wishes; and (3) by approving and accepting individual, particular applications for transfer or admission on a genuinely nondiscriminatory basis. And if, in addition, entirely apart from any racial considerations whatever, a freedom-of-choice program can be put in motion to stimulate the growth of private education, the South’s school problems can be controlled for a long time to come.

* * * * *

Your petitioners are hopeful that such an approach, much as it may annoy the advocates of compulsory integration, will find a favorable response among men who are willing to take the long view. It seems to us wholly in accord with the oldest principles of federalism--principles that have contributed much to the strength and vitality of this Republic. It is the diversity of the States, their ability to experiment, their right and power to respond to a variety of local conditions and customs that together prevent the evils of excessive centralism. “The traditions and habits of centuries were not intended to be overthrown when the Fourteenth Amendment was passed,” said Holmes. He remarked again: “There is nothing that I more deprecate than the use of the Fourteenth 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 the experiments may seem futile or even noxious to me and to those whose judgment I most respect.”

Not only is this approach in accord with a wise federalism; it also offers the greatest opportunity to the Southern Negro himself. In the course of a debate in the _Saturday Review_ with William Sloane Coffin, the New York-born William F. Buckley, Jr., said this: “If it is true that the separation of the races on account of color is nonrational, then circumstance will in due course break down segregation. When it becomes self-evident that biological, intellectual, cultural, and psychic similarities among the races render social separation atavistic, then the myths will begin to fade, as they have done in respect of the Irish, the Italian, the Jew; then integration will come--the right kind of integration.”

The South has begun to look upon its Negro people, since _Brown_, in a new way. Shortcomings of the Negro that earlier had been merely sensed are now acutely seen. But this is no bad thing. Before any social ill may be remedied, it first must be diagnosed and understood. Many a Southerner is now sensitive to the outward and visible signs of segregation; he was not so before. Today the detritus of a crumbling institution may be observed at every hand, and there are times when he squirms a little inside. This retreat to neutrality on the white man’s part is a necessary condition if the Negro, _by his own exertions_, is to find an equal place in the sun. In the end, the white man cannot do the job for him; Jim Crow is dead, but the legal shot that felled him also put Massa in the cold, cold ground. It is said that the high court “cast off the Negro’s shackles”; it cast off his crutches too. The paternalism of generations is vanishing year by year, to be replaced by a healthy skepticism: The Negro says he’s the white man’s equal; _show me_.

No decree of court, no act of Congress, can give the Negro more than this. He has no right--no legal right, no moral right--to intrude upon the private institutions of his neighbors. If individual liberty means anything, it must mean that each individual, regardless of color, is at liberty to choose his own personal and business associates, and to choose them for whatever reason. This the Negro must understand. If he is to become a part of this association, on equal terms, he must do what every other race of men has done since time began, and that is to demonstrate his worth to the community he seeks to enter. For more than three-hundred years, the white South by and large has regarded such entry as impossible. I would be less than honest if I did not acknowledge that a great part of the Deep South still views the slightest yielding as anathema. But elsewhere in my changing and unchanging land, the old unequivocal “no” to Negro equality slowly merges into a doubtful “maybe.” On the day that I write these concluding paragraphs, the local transit company in Richmond has announced employment of its first Negro bus drivers. The story made page one; but it made just the bottom of page one, and the Capital of the late Confederacy will not voice the slightest ripple of objection. If these drivers make it up the hill, others will follow. If the first Negro clerks in local retail stores can sell themselves, the experience of one merchant will persuade his neighbor. And the more the Negro people can do within their own neighborhoods and business communities, the more the white community’s retreat to neutrality will continue.

I believe the South will maintain what I have termed essential separation of the races for years to come. This means very nearly total segregation in education, where the intimate, personal, and prolonged association of white and Negro boys and girls, in public schools, in massive numbers, as social equals, is more than community attitudes will accept. The sad example of Prince Edward County, where a resolute rural people abandoned all public schools, offers an instructive lesson to the advocates of frontal assault. “We see the wisdom of Solon’s remark,” Jefferson once observed, “that no more good must be attempted than the nation can bear.” This essential separation also takes in such wholly social institutions as private clubs. I cannot foresee the integration of Protestant churches in the South. And whatever the Supreme Court may do in time to the miscegenation laws, ostracism, swift and certain, awaits those who would cross this marital line. But my guess would be that in areas of higher education, in many fields of employment, in professional associations, in such quasi-public fields as hotels, restaurants, and concert halls, doors that have been closed will open one by one. And a South that once would have regarded these innovations with horror will view them at first with surprise, then with regret, for a time with distaste, and at last with indifference. As the migration of the Negro out of the South continues, other parts of the nation, at once benefited and handicapped for want of the South’s experience in coexistence, will grapple in their own fashion with the cultural and economic assimilation of the Negro. They will not find it easy, but they can rely upon this: The South will not intrude its views upon theirs. This is a big country, a great country; it remains the freest country on earth, and the Negro people are a part of it. The law has done what it can for Negroes as a whole; the law will do more, in specific situations. The rest is up to time, and up to the Negroes themselves.

Appendix

Appendix

BROWN et al. v. BOARD OF EDUCATION OF TOPEKA
et al. [347 U. S. 483]

Appeal from the United States District Court for the
District of Kansas[1]

Argued December 9, 1952.--Reargued December 8, 1953.--Decided
May 17, 1954.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.[2]

In each of these cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in _Plessy_ v. _Ferguson_, 163 U. S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.[3] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.[4]

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively 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 these 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.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time.[5] In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost non-existent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race.[6] The doctrine of “separate but equal” did not make its appearance in this Court until 1896 in the case of _Plessy_ v. _Ferguson_, _supra_, involving not education but transportation.[7] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education.[8] In _Cumming_ v. _County Board of Education_, 175 U. S. 528, and _Gong Lum_ v. _Rice_, 275 U. S. 78, the validity of the doctrine itself was not challenged.[9] In more recent cases, all on the graduate-school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. _Missouri ex rel. Gaines_ v. _Canada_, 305 U. S. 337; _Sipuel_ v. _Oklahoma_, 332 U. S. 631; _Sweatt_ v. _Painter_, 339 U. S. 629; _McLaurin_ v. _Oklahoma State Regents_, 339 U. S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in _Sweatt_ v. _Painter_, _supra_, the Court expressly reserved decision on the question whether _Plessy_ v. _Ferguson_ should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike _Sweatt_ v. _Painter_, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors.[10] Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when _Plessy_ v. _Ferguson_ was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

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 the children of the minority group of equal educational opportunities? We believe that it does.

In _Sweatt_ v. _Painter_, _supra_, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In _McLaurin_ v. _Oklahoma State Regents_, _supra_, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “ ... his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications 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
detrimental effect upon the colored children. The impact is greater
when it has the sanction of the law; for the policy of separating
the races is usually interpreted as denoting the inferiority of
the Negro group. A sense of inferiority affects the motivation of
a child to learn. Segregation with the sanction of law, therefore,
has a tendency to [retard] the educational and mental development
of Negro children and to deprive them of some of the benefits they
would receive in a racial[ly] integrated school system.[11]

Whatever may have been the extent of psychological knowledge at the time of _Plessy_ v. _Ferguson_, this finding is amply supported by modern authority.[12] Any language in _Plessy_ v. _Ferguson_ contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[13]

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question--the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term.[14] The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as _amici curiae_ upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.[15]

_It is so ordered._

BOLLING et al. v. SHARPE et al.
[347 U. S. 497]

CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Argued December 10-11, 1952.--Reargued December 8-9,
1953.--Decided May 17, 1954.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented. 344 U. S. 873.

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools.[16] The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain 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 be so unjustifiable as to be violative of due process.[17]

Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.[18] As long ago as 1896, this Court declared the principle “that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race.”[19] And in _Buchanan_ v. _Warley_, 245 U. S. 60, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.[20] We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.

For the reasons set out in _Brown_ v. _Board of Education_, this case will be restored to the docket for reargument on Questions 4 and 5 previously propounded by the Court. 345 U. S. 972.

_It is so ordered._

BROWN et al. v. BOARD OF EDUCATION OF
TOPEKA et al.

[Supplementary opinion of May 31, 1955]
[349 U. S. 294]

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases were decided on May 17, 1954. The opinions of that date,[21] declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief.[22] In view of the nationwide importance of the decision, we invited the Attorney General of the United States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as _amici curiae_, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.

Full implementation of these constitutional principles may require solution of varied local school problems, School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.[23]

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies[24] and by a facility for adjusting and reconciling public and private needs.[25] These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case--ordering the immediate admission of the plaintiffs to schools previously attended only by white children--is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

_It is so ordered._

A BIBLIOGRAPHICAL NOTE

There stands in the Grove of Academe, or so I have often imagined, a certain idolatrous image. It is a crane-like creature with italic wings, the great god _Ibid._, and before it, strutting on their tiny six-point feet, the pedant peacocks daily make obeisance. They look up, _supra_, and down _infra_, and spreading their tails with asterisk eyes, they march with robed scholars to lay garlands of _op. cit._ upon the ritual shrine.

When I launched into this book, I swore a blasphemous oath upon such phony veneration. After a long life of reading footnotes, and reading them religiously, I have concluded that 98.2 per cent of them are so much flummery: They are showin’ off befo’ God. Thus I had not planned upon notes or bibliography, and this extended note is afterthought; it is the reluctant consequence of listening to beguiling editors. They said: Where did you get all this stuff? Whence these bizarre ideas? They said: Serious students will want to know where to get supporting material intended to prove (a) that you are a fraud, or (b) that there may be something to the Southern position after all. You ought to gird up your Gothic archness with a few flying buttresses of attribution. And in a moment of weakness, I said very well.

The figures on population, area, wages, housing, and the like, in the opening pages of this book, come primarily from the 1960 Census and the _Statistical Abstract of the United States for 1961_. The Census people have a diabolical genius for presenting their data in the least usable possible form, but they have a monopoly on the figures and no other source exists.

As for the nature of the South: Almost every Southerner who writes for a living at one time or another has wooed this elusive theme. I would suggest that a student start with W. J. Cash’s _The Mind of the South_, not because I agree with everything Cash had to say, but because his brief star flashed with a rare brilliance across the Southern sky. The Knopf edition of 1941 is now available in a Doubleday Anchor paperback, and though parts of it are dated, it continues to offer a good basic foundation. Then, at random, William Alexander Percy’s _Lanterns on the Levee_, and David Cohn’s _Where I Was Born and Raised_. The late William Polk of Greensboro, N.C., was a delightful gentleman; during an editorial writers’ convention in Boston, we once talked of the South’s problems between the bumps and grinds of an Old Howard Burly-Q. His book, _Southern Accent_ (1953) is fine background reading. Although they are hard to find, Ward Allison Dorrance’s several books on Southern rivers are worth the effort. Some good essays appear in _The Lasting South_ (1957), a collection edited largely by Louis D. Rubin, Jr., though my own name is on the spine too.

A great many other books about the South come to mind. Henry Grady’s _The New South_, published in 1890, is almost indispensable. Another necessary work, of seminal influence, is the Agrarians’ _I’ll Take My Stand_ of 1930. I come back frequently to Matthew Page Andrews’ _Virginia, The Old Dominion_. C. Vann Woodward’s several books are useful: _The Burden of Southern History_, _Origins of the New South_, and _The Strange Career of Jim Crow_. The serious student’s reading list would find a place for _Seeds of Time_, by Henry Savage, Jr.; _Southern Tradition and Regional Progress_, by William H. Nicholls; _The Southern Heritage_, by James McBride Dabbs, and _Goodbye to Uncle Tom_, by J. C. Furnas. Thomas D. Clark’s _The Emerging South_ is good on economic history. Virginius Dabney’s _Below the Potomac_, published in 1942, remains a solid work. Bernard Robb’s _Welcum Hinges_ is at once gentle and delightful. The student should not pass by Harry Ashmore’s _Epitaph for Dixie_ (1958) and _The Other Side of Jordan_ (1960). And of course, before it gets overlooked by reason of its bulk and importance, the multi-volumed history of the South emerging from Louisiana State University Press is a primary reference.

Many of the foregoing titles--alas, almost all of them--are the work of Southern Liberals. And I do not seem to have mentioned P. D. East’s _The Magnolia Jungle_, or Hodding Carter’s _Southern Legacy_ and _Where the Main Street Meets the River_, and _The South Strikes Back_, or Robert Penn Warren’s _Segregation_, or Jonathan Daniels’ _A Southerner Discovers the South_ and _Frontier on the Potomac_. Nearly all the recent crop of books are cast in molds more liberal yet: Carl T. Rowan’s _Go South to Sorrow_; John Howard Griffin’s _Black Like Me_, and Richard Wright’s _White Man, Listen!_ Wilma Dykeman and James Stokely have co-authored two books worth serious thought: _Neither Black nor White_, and _Seeds of Southern Change_. A student’s shelf should leave a place for William Peters’ _The Southern Temper_. Several books of largely contemporary, topical interest should be read: Martin Luther King’s account of the Montgomery boycott, _Stride Toward Freedom_; Bishop Robert R. Brown’s _Bigger Than Little Rock_; Virgil T. Blossom’s _It Has Happened Here_; and John Bartlow Martin’s generally well-balanced _The Deep South Says Never_. Martin’s book is the work of a professional reporter. Most of the rest of the books mentioned in this paragraph annoyed the hell out of me.

Against this monstrous amount of sack, one finds but a penny’s worth of bread. The conservative South has not lacked willing spokesmen; it has lacked agreeable publishers. A bare handful of works present a contrary view, and some of these--Herman Talmadge’s _You and Segregation_, and W. E. Debnam’s impudent _Weep No More, My Lady_, and _My Old Kentucky Home, Good Night_--are in paperback. The scant list of hardcover works espousing the point of view of several million white Southerners includes only Bill Workman’s _The Case for the South_ (1960), Carleton Putnam’s _Race and Reason, a Yankee View_, and my own _The Sovereign States_ (1957), a book I still like very much. (There is also Charles P. Bloch’s lawyerly _States Rights: The Law of the Land_, but that probably should be mentioned later in books on legal aspects of the question.)

One scarcely knows where to begin on books dealing with the Negro as such. The literature in this field is unending. In fairness, the student should seek out a couple of books that advance the traditional Southern view: Earnest Sevier Cox’s _White America_ (1923) and, from as far back as 1910, E. H. Randle’s slim _Characteristics of the Southern Negro_. In the same year that Randle wrote his book, an English critic, William Archer, brought forth _Through Afro-America_. These three works are period pieces now, but they still have value.

I have relied heavily in writing this book on Nathaniel Weyl’s _The Negro in American Civilization_. Needless to say, a hundred other works are arrayed against his point of view. The student doubtless will have to begin with almost anything from W. E. B. DuBois, keeping in mind that DuBois, the grand old Red of the NAACP, formally joined the Communist Party in 1961. His works are important, nonetheless. Jerome Dowd’s _The Negro in American Life_ (1926) is long, and outdated, but still most useful. A thoughtful reader will find a few hours for Tuskegee’s Robert R. Moton; his autobiography of 1920, _Finding a Way Out_, even then predicted a day when the white South would “stop feeling and begin thinking” about its Negro problem, and his _What the Negro Thinks_ (1929) offers an insight into the continuing nature of Negro goals. A more militant work by the NAACP’s James Weldon Johnson, _Negro Americans, What Now?_ appeared in 1934. And thinking of the NAACP, Mary White Ovington’s _The Walls Came Tumbling Down_ (1947) contains some material not available elsewhere.

Of more recent vintage, half a dozen studies of the Negro deserve mention as reference works. Primus, of course, the monumental (and monumentally unreadable) work of Gunnar Myrdal and his associates, _An American Dilemma_. There are said to be eleven persons in the United States, apart from the collaborators, who have read the whole two volumes; I am not among them. But I ploughed through most of it. Arnold Rose, Myrdal’s chief assistant, has brought out a condensation, published in 1948 as _The Negro in America_. Rayford W. Logan of Howard University, one of the most prolific writers in the field, has produced a number of works of substantial value, among them _The Negro in American Life and Thought_ and _The Negro in the Postwar World_. His colleague, Edward Franklin Frazier, also has published extensively; his _The Negro in the United States_ (1957) is quite useful. Still another Negro writer, Arna Werdell Bontemps, should be consulted through her _100 Years of Negro Freedom_. An interesting work that I came across after this manuscript was finished is Gilbert Franklin Edwards’ _The Negro Professional Class_ (1959).

In the narrower field of political action, the general reader should begin with V. O. Key’s major work, _Southern Politics in State and Nation_, which sets the scene, and then go back to William Felbert Nowlin’s work of 1931, _The Negro in American National Politics_. A good contemporary work is _The Negro and Southern Politics_, by Hugh Douglas White. Of less value, in part because of its arrogant tone, is Henry Lee Moon’s polemical _Balance of Power: The Negro Vote_ (a typical reference is to the “political zombies who infest the sub-Potomac region”). Report of the Civil Rights Commission and the Southern Regional Council are indispensable.