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tion 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 movtiation 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.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 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."

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 pro

" 10

10 A similar finding was made in the Delaware case : "I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated." 87 A. 2d 862, 865.

11 K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), C. VI; Deutscher and Chein, The Psychological Efects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

12 See Bolling v. Sharpe, post, p. 497, concerning the Due Pocess Clause of the Fifth Amendment.

pounded by the Court for the reargument this Term.18 » The Attorney General of the United States is again invited to participated. 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, 1954.14

It is so ordered.

HARRY BRIGGS, JR., ET AL., PLAINTIFFS, v. R. W. ELLIOTT ET AL., DEFENDANTS

CIV. A. No. 2657.

United States District Court

E. D. South Carolina,

Charleston Division.

July 15, 1955.

Action against board of trustees of school district for declaratory judgment and injunctive relief. The District Court, Per Curiam, held that equal protections clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals.

Judgment accordingly. 1. Constitutional Law Cm 220

State may not, either directly or indirectly, deny to any person on account of race the right to attend any school maintained by such state. 2. Constitutional Law On 220

If schools maintained by state are open to children of all races, no violation of equal protection of laws is involved, even though children of races voluntarily attend different schools. U.S.C.A. Const. Amend. 14. 3. Constitutional Law Crw 220

Equal protection clause of constitution does not require integration of schools, but merely forbids discrimination, and does not forbid such segregation as occurs as result of voluntary action. U.S.C.A. Const. Amend. 14. 4. Constitutional Law Cm 209

Equal protection clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom if individuals. U.S.C.A. Const. Amend. 14.

Thurgood Marshall, New York, N.Y., Harold R. Boulware, Columbia, S.C., for plaintiffs.

S. E. Rogers, Summerton, S.C., Robert MaC. Figg, Jr., Charleston, S.C., for defendants.

Before PARKER and DOBIE, Circuit Judges, and TIMMERMAN, District Judge.

PER CURIAM. This Court in its prior decisions in this case, 98 F. Supp. 529; 103 F. Supp. 920, followed what it conceived to be the law as laid down in prior decisions of

13 “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment.

(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

(6) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions ?

"5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(6),

(a) should this Court formulate detailed decrees in these cases ; “(6) if so, what specific issues should the decrees reach ;

* (c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?"

14 See Rule 42, Revised Rules of this Court (effective July 1, 1954).

the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 ; Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172, that nothing in the Fourteenth Amendment to the Constitution of the United States forbids segregation of the races in the public schools provide equal facilities are accorded the children of all races. Our decision has been reversed by the Supreme Court, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S. Ct. 752, 757, which has remanded the case to us with direction “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 non-discriminatory basis with all deliberate speed the parties to these cases”.

Whatever may have been the views of this court as to the law when the case was originally before us, it is our duty now to accept the law as declared by the Supreme Court.

[1-4] Having said this, it is important that we point out exactly what the Supreme Court has decided 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 ght 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 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 occurs 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.

The Supreme Court has pointed out that the solution of the problem in accord with its decisions is the primary responsibility of school authorities and that the function of the courts is to determine whether action of the school authorities constitutes “good faith implementation of the governing constitutional principles.” With respect to the action to be taken under its decision the Supreme Court said:

"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.

“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 and by a facility for adjusting and reconciling public and private needs. 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 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 Court is convened to hear any concrete suggestions you may have to make as to the decree that it should enter.

Decree

This cause coming on to be heard on the motion of plaintiffs for a judgment and decree in accordance with the mandate of the Supreme Court, and the Court having carefully considered the decision of the Supreme Court, the arguments of counsel, and the record heretofore made in this cause:

It is ordered that the decree heretofore entered by this Court be set aside and, in accordance with the decision and mandate of the Supreme Court, it is ordered, adjudged and decreed that the provisions of the Constitution and laws of the State of South Carolina requiring segregation of the races in the public schools are null and void because violative of the Fourteenth Amendment to the Constitution of the United States, and that the defendants be and they are hereby restrained and enjoined from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such school on a non-discriminatory basis with all deliberate speed as required by the decision of the Supreme Court in this cause.

It is further ordered that this cause be retained on the docket for the entry of further orders herein if necessity for same should arise.

Senator Ervin. Mr. Attorney General, since I have put the Brown case in the record, I trust I will be able to proceed with more than deliberate speed.

Attorney General KENNEDY. All right, sir.

Senator Ervin. I want to ask you a few more questions about the title dealing with school desegregation.

Is not the Federal Commissioner of Education a presidential appointed official rather than a civil service employee of the Government? Attorney General KENNEDY. That is correct, Senator.

Senator Ervin. So can't we reasonably assume that the Federal Commissioner of Education will administer the provisions of title III applicable to him in accordance with the policies of the administration?

Attorney General KENNEDY. I think that is correct, and in accordance with his oath of office.

Senator Ervin. Now, I want to call your attention again to section 304 of the bill, on lines 7, 8, 13, 14, 15, 16, 17, of page 21, which read as follows:

The Commissioner may make a grant under this section, upon application therefor, for the cost of employing specialists in problems incident to desegregation or racial imbalance and of providing other assistance to develop understanding of these problems by parents, schoolchildren, and the general public.

I am interested in your interpretation of what kind of understanding is to be developed. I do not know whether you agree with me on this point or not, but I am firmly convinced from everything I have heard and read that there are literally millions of people in the United States who do not believe that there should be compulsory integration of the public schools. I think that is illustrated very strikingly here in the District of Columbia.

In 1950, the total white population in the District of Columbia was 517,865 persons. In 1960, it had decreased to 345,263, being a decrease in the white population of the District of 172,602.

In 1950, before the school desegregation decision was handed down and before the policy of attempting to make the city of Washington the showplace of the Nation in school desegregation was adopted, the total number of white children in the public schools of the District of Columbia was 46,736. By the year 1962, the total number of white children in the public schools of the District of Columbia had decreased to 22,280, making a total decrease in the number of white schoolchildren attending the schools of the District of Columbia during this 12-year period of 24,456.

I infer that this exodus of white people from the District of Columbia has been occasioned in substantial part by compulsory school integration within the District.

Attorney General KENNEDY. May I say something about that, Senator?

Senator ERVIN. Yes.

Attorney General KENNEDY. It is very possible it was a factor, but I don't think it is a major factor. If you look at any major metropolitan area in the United States, you will see that there is more and more of an effort to get out of the city and get into the suburbs. That is true here in the District of Columbia. It happens to be that white people here in the District of Columbia, as really in every major metropolitan area, have a higher income, a greater source of income than nonwhite people, so that they can afford a house out in the suburbs. They can afford to move out.

Now, certainly, that is true in my own city of Boston, where I suppose the population is far less now than it was 10, 15, or 20 years ago, because people have moved out into the suburbs.

I think it is true of every major metropolitan area, Senator.

On the other hand, Negroes have come up into Washington. There has been an influx because they feel they perhaps will have more opportunity up here than they have in other areas of the country.

Senator ÊRVIN. Do you not know that the census figures reveal that the white people who have been moving out in the District have largely been white people of child-bearing age?

Attorney General KENNEDY. I congratulate them, Senator. I think they have had a fine opportunity. I am of child-bearing age and I have moved out, too.

But I think it is nicer in the country, Senator. Senator Ervin. Oh, I do, too. Much nicer. In fact, I do not know of any place that is not nicer than the District of Columbia, because I think there is more nonsense up here per square inch than any other place in the United States.

But do you contest the fact that very substantial segments among the American population do not favor compulsory integration of schools?

Attorney General KENNEDY. I think there are those who are not in favor of their children going to school with nonwhites. I think that

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