Brief for Appellants in Nos. 2 (1,) and 4 and for Respondents in No. on Reargument (10 )

CHARLES L. BLACK JR., ELWOOD H. CHISOLM, WILLIAM T. COLEMAN JR. CHARLES T. DUNCAN, GEORGE E. C. HAYES, WILLIAM R. MING JR., CONSTANCE BAKER MOTLEY, JAMES M. NABRIT JR., DAVID E. PINSKY, FRANK E. REEVES, JOHN SCOTT, JACK B. WEINSTEIN, of Counsel. HAROLD BOULWARE, ROBERT L. CARTER, JACK GREENBERG, OLIVER W. HILL, THURGOOD MARSHALL, LOUIS L. REDDING, SPOTTSWOOD W. ROBINSON, III, CHARLES S. SCOTT, Attorneys for Appellants in Nos. 1, 2, 4 and for Respondents in No. 10.

Table of Contents

Explanatory Statement

No. 1

Opinion Below

Jurisdiction

Statement of the Case

Specification of Errors

No. 2

Jurisdiction

Statement of the Case

Specification of Errors

No. 4

Opinion Below

Jurisdiction

Statement of the Case

Specification of Errors

No. 10

Opinion Below

Jurisdiction

Statement of the Case

This Court's Order

Summary of Argument

Argument

Part One

1. Normal exercise of the judicial function calls for a declaration that the state is without power to enforce distinctions based upon race or color in affording educational opportunities in the public schools
2. The statutory and constitutional provisions involved in these cases cannot be validated under separate but equal concept
   1. Racial segregation cannot be squared with the rationale of the early cases interpreting the reach of the Fourteenth Amendment
   2. The first time the question came before the Court, racial segregation in transportation was specifically disapproved
   3. The separate but equal doctrine marked an unwarranted departure from the main stream of constitutional development and permits the frustration of the very purposes of the Fourteenth Amendment as defined by this Court
   4. The separate but equal doctrine was conceived in error
      1. The dissenting opinion of Justice Harlan in Plessy v. Ferguson
      2. Custom, usage and tradition rooted in the slave tradition cannot be the constitutional yardstick for measuring state action under the Fourteenth Amendment
      3. Preservation of public peace cannot justify deprivation of constitutional rights
      4. The separate but equal doctrine deprives Negroes of that protection which the Fourteenth Amendment accords under the general classification test
   5. The separate but equal doctrine has not received unqualified approval in this Court
   6. The necessary consequence of the Sweatt and McLaurin decisions is repudiation of the separate but equal doctrine
3. Viewed in the light of history the separate but equal doctrine has been an instrumentality of defiant nullification of the Fourteenth Amendment
   1. The status of the Negro, slave and free, prior to the Civil War
   2. The post war struggle
   3. The Compromise of 1877 and the abandonment of Reconstruction
   4. Consequences of the 1877 Compromise
   5. Nullification of the rights guaranteed by the Fourteenth Amendment and the reestablishment of the Negro's pre–Civil War inferior status fully realized

Conclusion to Part I

Part Two

• I. The Fourteenth Amendment was intended to destroy all caste and color legislation in the United States, including racial segregation
  • A. The era prior to the Civil War was marked by determined efforts to secure recognition of the principle of complete and real equality for all men within the existing constitutional framework of our government
  • Equality under law
  • B. The movement for complete equality reached its successful culmination in the Civil War and the Fourteenth Amendment
  • C. The principle of absolute and complete equality began to be translated into federal law as early as 1862
  • D. From the beginning the thirty-ninth Congress was determined to eliminate race distinctions from American law
  • The framers of the Fourteenth Amendment
  • E. The Fourteenth Amendment was intended to write into the organic law of the United States the principle of absolute and complete equality in broad constitutional language
  • F. The Republican majority in the 39th Congress was determined to prevent future Congresses from diminishing federal protection of these rights
  • G. Congress understood that while the Fourteenth Amendment would give authority to Congress to enforce its provisions, the amendment in and of itself would invalidate all class legislation by the states
  • Congress intended to destroy all class distinction in law
  • H. The treatment of public education or segregation in public schools during the 39th Congress must be considered in the light of the status of public education at that time
  • I. During the congressional debates on proposed legislation which culminated in the Civil Rights Act of 1875 veterans of the thirty-ninth Congress adhered to their conviction that the Fourteenth Amendment had proscribed segregation in public schools
• II. There is convincing evidence that the State Legislatures and conventions which ratified the Fourteenth Amendment contemplated and understood that it prohibited State legislation which would require racial segregation in public schools
  • A. The eleven states seeking readmission understood that the Fourteenth Amendment stripped them of power to maintain segregated schools
  • Arkansas
  • North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida
    Texas
    Virginia
    Mississippi
    Tennessee
  • B. The majority of the twenty-two Union States ratifying the 14th Amendment understood that it forbade compulsory segregation in public schools
    West Virginia and Missouri
    The New England States
    The Middle Atlantic States
    The Western Reserve States
    The Western States
  • C. The non-ratifying states understood that the Fourteenth Amendment forbade enforced segregation in public schools
    Maryland
    Kentucky
    California

Conclusion to Part II

Part Three

1. This Court should declare invalid the constitutional and statutory provisions here involved requiring segregation in public schools. After careful consideration of all of the factors involved in transition from segregated school systems to unsegregated school systems, appellants know of no reasons or considerations which would warrant postponement of the enforcement of appellants' rights by this Court in the exercise of its equity powers
2. The Fourteenth Amendment requires that a decree be entered directing that appellants be admitted forthwith to public schools without distinction as to race or color
3. There is no equitable justification for postponement of appellants' enjoyment of their rights
4. Appellants are unable, in good faith, to suggest terms for a decree which will secure effective gradual adjustment because no such decree will protect appellants' rights

Conclusion

Supplement