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

PART ONE

The question of judicial power to abolish segregated schools is basic to the issues involved in these cases and for that reason we have undertaken to analyze it at the outset before dealing with the other matters raised by the Court, although formally this means that the first section of this brief comprehends Question No. 3:

On the assumption that the answers to question 2(a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools?

I. 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

This Court in a long line of decisions has made it plain that the Fourteenth Amendment prohibits a state from making racial distinctions in the exercise of governmental power. Time and again this Court has held that if a state's power has been exercised in such a way as to deprive a Negro of a right which he would have freely enjoyed if he had been white, then that state's action violated the Fourteenth Amendment.

In Shelley v. Kraemer, 334 U.S. 1, for example, an unanimous Court held that States of Missouri and Michigan had violated the 14th Amendment when their courts ruled that a Negro could not own real property whose ownership it was admitted the state law would have protected him in, had he been white. This, despite the fact that the state court was doing no more than enforcing a private agreement running with the land. The sole basis for the decision, then, was that the Fourteenth Amendment compels the states to be color blind in exercising their power and authority.

Buchanan v. Warley, 245 U.S. 60, was an earlier decision to the same effect. There, this Court invalidated a Louisville, Kentucky ordinance which required racial residential segregation. Though it applied to Negro and white alike, the Court rightly recognized that the ordinance was an exercise of the state's power based on race and race alone. This, the Court ruled, was a violation of the Fourteenth Amendment. To the same effect is Barrows v. Jackson, 346 U.S. 249, 97 (L. Ed. Advance p. 261). And see Oyama v. California, 332 U.S. 633.

This Court has applied the same rigorous requirement to the exercise of the state's power in providing public education. Beginning with Missouri ex rel. Gaines v. Canada, 305 U.S. 337, this Court has uniformly ruled that the Fourteenth Amendment prohibits a state from using race or color as the determinant of the quantum, quality or type of education and the place at which education is to be afforded. Most recently, this Court in McLaurin v. Oklahoma State Regents, 339 U.S. 637, held that rules which made distinctions among students in the same school solely on the basis of color were forbidden by the Fourteenth Amendment. Thus, this Court has made it plain that no state may use color or race as the axis upon which the state's power turns, and the conduct of the public education system has not been excepted from this ban.

This judicial recognition that race is an irrational basis for governmental action under our Constitution has been manifested in many decisions and opinions of this Court. In Yick Wo v. Hopkins, 118 U.S. 356, this Court struck down local administrative action which differentiated between whites and Chinese. In Hirabayashi v. United States, 320 U.S. 81, 100, Chief Justice Stone, in a majority opinion, characterized racial distinctions as "odious to a free people." In Korematsu v. United States, 323 U.S. 214, 216, the Court viewed racial restrictions as "immediately suspect." Mr. Justice Jackson, concurring in Edwards v. California, 314 U.S. 180, 185, referred to race and color as "constitutionally an irrelevance." Mr. Justice Douglas, dissenting in South v. Peters, 339 U.S. 276, 278, considered discriminations based upon race, creed, or color "beyond the pale." In an unanimous opinion in Henderson v. United States, 339 U.S. 816, 825, the Court, while not reaching the constitutional question raised, described signs, partitions and curtains segregating Negroes in railroad dining cars as emphasizing "the artificiality of a difference in treatment which serves only to call attention to a racial classification of passengers holding identical tickets and using the same public dining facility." Every member of the present Court has from time to time subscribed to this view of race as an irrational premise for government action.

The restrictions placed upon persons of Japanese origin on the West Coast during World War II were sustained in Hirabayashi v. United States, supra, and in Korematsu v. United States, supra, as emergency war measures taken by the national government in a dire national peril of the gravest nature. The military decision was upheld as within an implied war power, and the Court was unwilling to interfere with measures considered necessary to the safety of the nation by those primarily responsible for its security. Yet, in upholding these orders, the Court made some of the most sweeping condemnations of governmentally imposed racial and color distinctions ever announced by our judiciary. And while departure from accepted standards of governmental conduct was sustained in order to remove persons of Japanese origin from areas where sabotage and espionage might have worked havoc with the national war effort, once this removal was accomplished and individual loyalty determined, further restrictions based upon race or color could no longer be countenanced. Ex Parte Endo, 323 U.S. 283.

Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, and Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, while not deciding the constitutional question, left no doubt that the Fifth Amendment had stripped the national government of power to enforce the racial discrimination assailed.

These decisions serve to underscore the constitutional prohibition against Congressional action grounded upon color except in so far as it may have temporary justification to meet an overwhelming national emergency such as that which led to decisions in the Hirabayashi and Korematsu cases.

The power of states is even more rigidly circumscribed. For there is grave doubt that their acts can be sustained under the exception made in the Hirabayashi and Korematsu cases with respect to the national government. See Oyama v. California, 332 U.S. 633. The Fourteenth Amendment has been defined as a broad prohibition against state enforcement of differentiations and discrimination based upon race or color. State action restricting the right of Negroes to vote has been struck down as a violation of the Fourteenth Amendment. Nixon v. Condon, 286 U.S. 73. Similarly, the Court has refused to sanction the systematic exclusion of Negroes from the petit or grand jury, Hill v. Texas, 316 U.S. 400; Pierre v. Louisiana, 306 U.S. 354; their representation on juries on a token or proportional basis, Cassell v. Texas, 339 U.S. 282; Shepherd v. Florida, 341 U.S. 50; or any method in the selection of juries susceptible of racial discrimination in practice. Avery v. Georgia, 345 U.S. 559.

Legislation depriving persons of particular races of an opportunity to pursue a gainful occupation has been held a denial of equal protection. Truax v. Raich, 239 U.S. 33; Takahashi v. Fish and Games Commission, 334 U.S. 410. It is now well settled that a state may not make racial differences among its employees the basis for salary differentiations. Alston v. School Board, 112 F. 2d 992 (CA 4th 1940), cert. denied, 311 U.S. 693.

Indeed, abhorrence of race as a premise for governmental action pervades a wide realm of judicial opinion dealing with other constitutional provisions. Sweeping decisions have enforced the right of Negroes to make effective use of the electoral process consistent with the requirements of the Fifteenth Amendment. Guinn v. United States, 238 U.S. 347; Lane v. Wilson, 307 U.S. 268; Smith v. Allwright, 321 U.S. 649; Terry v. Adams, 345 U.S. 461.

It should be added parenthetically that these decisions are not mere pro forma applications of the self-evident requirements of the Fifteenth Amendment. On the contrary, the concept of state action has been utilized in a dynamic and expanding fashion as the Court has sought to reach any method or subterfuge with which the state has attempted to avoid its obligation under that constitutional amendment. Smith v. Allwright, supra; Terry v. Adams, supra. See Rice v. Elmore, 165 F. 2d 387 (CA 4th 1947), cert. denied, 333 U.S. 875 and Baskin v. Brown, 174 F. 2d 391 (CA 4th 1949), cases holding state nonaction violative of the Fifteenth Amendment the principle of which was expressly approved in Terry v. Adams.

State laws requiring racial segregation in interstate commerce have been declared an invalid invasion of commerce power reserved to the Congress. Morgan v. Virginia, 328 U.S. 373. But where a state sought to enforce against a carrier engaged in foreign commerce its local nonsegregation policy, the state law was upheld. The Court considered it inconceivable that the Congress in the exercise of its plenary power over commerce would take any action in conflict with the local nondiscriminatory regulations imposed. Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28. These two cases considered together strikingly exemplify this Court's position that fundamental national policy is offended by a requirement of segregation, but implemented by its prohibition.

The contention by a labor union that a state civil rights law which prohibited racial discrimination in union membership offended the Fourteenth Amendment was dismissed because such a position "would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race and color." Railway Mail Association v. Corsi, 326 U.S. 88, 94.

Thus, the Court has all but universally made short shrift of attempts to use governmental power to enforce racial distinctions. Yet, where such power has prohibited racial discrimination, it has been sustained even where it has been urged that the state is acting in derogation of other constitutional rights or protected interests.

At the graduate and professional school level, closest to the cases here, racial distinctions as applied have been struck down. McLaurin v. Oklahoma State Regents, 339 U.S. 637; Sweatt v. Painter, 339 U.S. 629. In those cases the educational process was viewed as a totality. The faculty of the school, the prestige of the institution, the fact that segregation deprived the Negro applicant of the benefits which he might secure in attending school with representatives of the state's dominant racial majority, the value judgment of the community with respect to the segregated school, and the impact of segregation on the individual were among the factors considered by the Court in determining that equal educational opportunities were not available. Those cases, we submit, control disposition of the cases here.

Since segregation was found to impair and inhibit an adult's ability to study in the McLaurin case, it seems clear that such segregation has even more far reaching adverse consequences on the mental development of the children involved here.

Sweatt's isolation from the dominant racial majority in a segregated law school was held to deprive him of an effective opportunity to learn the law. The basic function of the public school is to instruct each succeeding generation in the fundamental traditions of our democracy. The child can best come to believe in and respect these traditions by learning them in a setting in which they are in practical operation. But to be taught that our society is founded upon a concept of equality in a public school from which those racial groups are excluded which hold preeminence in every field in his community makes it all but impossible for such teachings to take root. Segregation here is detrimental to the Negro child in his effort to develop into a useful and productive citizen in a democracy.

The Sweatt and McLaurin cases teach that the Court will consider the educational process in its entirety, including, apart from the measurable physical facilities, whatever factors have been shown to have educational significance. This rule cannot be peculiar to any level of public education. Public elementary and high school education is no less a governmental function than graduate and professional education in state institutions. Moreover, just as Sweatt and McLaurin were denied certain benefits characteristic of graduate and professional education, it is apparent from the records of these cases that Negroes are denied educational benefits which the state itself asserts are the fundamental objectives of public elementary and high school education.

South Carolina, like the other states in this country, has accepted the obligation of furnishing the extensive benefits of public education. Article XI, section 5, of the Constitution of South Carolina, declares: "The General Assembly shall provide for a liberal system of free public schools for all children between the ages of six and twenty-one years." Some 410 pages of the Code of Laws of South Carolina deal with "education." Title 31, Chapters 122–23, S. C. Code, pp. 387–795 (1935). Provision is made for the entire state-supported system of public schools, its administration and organization, from the kindergarten through the university. Pupils and teachers, school buildings, minimum standards of school construction, and specifications requiring certain general courses of instruction are dealt with in detail. In addition to requiring that the three "R's" must be taught, the law compels instruction in "morals and good behaviour" and in the "principles" and "essentials of the United States Constitution, including the study of and devotion to American institutions." Title 31, Chapter 122, sections 5321, 5323, 5325, S. C. Code (1935). The other states involved here are attempting to promote the same objectives.

These states thus recognize the accepted broad purposes of general public education in a democratic society. There is no question that furnishing public education is now an accepted governmental function. There are compelling reasons for a democratic government's assuming the burden of educating its children, of increasing its citizens' usefulness, efficiency and ability to govern.

In a democracy citizens from every group, no matter what their social or economic status or their religious or ethnic origins, are expected to participate widely in the making of important public decisions. The public school, even more than the family, the church, business institutions, political and social groups and other institutions, has become an effective agency for giving to all people that broad background of attitudes and skills required to enable them to function effectively as participants in a democracy. Thus, "education" comprehends the entire process of developing and training the mental, physical and moral powers and capabilities of human beings. See Weyl v. Comm. of Int. Rev., 48 F. 2d 811, 812 (CA 2d 1931); Jones v. Better Business Bureau, 123 F. 2d 767, 769 (CA 10th 1941).

The records in instant cases emphasize the extent to which the state has deprived Negroes of these fundamental educational benefits by separating them from the rest of the school population. In the case of Briggs v. Elliott (No. 101), expert witnesses testified that compulsory racial segregation in elementary and high schools inflicts considerable personal injury on the Negro pupils which endures as long as these students remain in the segregated school. These witnesses testified that compulsory racial segregation in the public schools of South Carolina injures the Negro students by: (1) impairing their ability to learn (R. 140, 161); (2) deterring the development of their personalities (R. 86, 89); (3) depriving them of equal status in the school community (R. 89, 141, 145); (4) destroying their self-respect (R. 140, 148); (5) denying them full opportunity for democratic social development (R. 98, 99, 103); (6) subjecting them to the prejudices of others (R. 133) and stamping them with a badge of inferiority (R. 148).

Similar testimony was introduced in each of the other three cases here involved, and that testimony was undisputed in the case of Briggs v. Elliott (No. 101); Brown v. Board of Education of Topeka, et al. (No. 8); Gebhart v. Belton (No. 448). In Davis v. County School Board (No. 191), while witnesses for the appellees disputed portions of the testimony of appellants' expert witnesses, four of appellees' witnesses admitted that racial segregation has harmful effects and another recognized that such segregation could be injurious.

In the Gebhart case (No. 448) the Chancellor filed an opinion in which he set forth a finding of fact, based on the undisputed oral testimony of experts in education, sociology, psychology, psychiatry and anthropology (A. 340–341) that in "our Delaware society," segregation in education practiced by petitioners as agents of the state "itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated."

And the court below in the Brown case (No. 8) made the following Finding of Fact (R. 245–246):

"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 racially integrated school system."

The testimony of the expert witnesses in the cases now under consideration, the Opinion of the Chancellor in the Delaware case and the Finding of Fact by the lower court in the Kansas case are amply supported by scientific studies of recognized experts. A compilation of these materials was assembled and filed as an Appendix to the briefs in these cases on the first hearing. The observation of Mr. Justice Jackson in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 636 that public school children, being educated for citizenship, must be scrupulously protected in their constitutional rights, "if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes," while made in somewhat different context, appropriately describes the high public interest which these cases involve.

In sum, the statutes and constitutional provisions assailed in these cases must fall because they are contrary to this Court's basic premise that, as a matter of law, race is not an allowable basis of differentiation in governmental action; they are inconsistent with the broad prohibition of the Fifth and Fourteenth Amendments as defined by this Court; they are clearly within that category of racism in state action specifically prohibited by the McLaurin and Sweatt decisions.

II. THE STATUTORY AND CONSTITUTION AL PROVISIONS INVOLVED IN THESE CASES CANNOT BE VALIDATED UNDER ANY SEPARATE BUT EQUAL CONCEPT

The basic principles referred to in Point I above, we submit, control these cases, and except for the mistaken belief that the doctrine of Plessy v. Ferguson, 163 U.S. 537, is a correct expression of the meaning of the Fourteenth Amendment, these cases would present no difficult problem.

This Court announced the separate but equal doctrine in a transportation case, and proponents of segregation have relied upon it repeatedly as a justification for racial segregation as if "separate but equal" had become in haec verba an amendment to the Fourteenth Amendment, itself. Under that anomalous doctrine, it is said that racial differentiations in the enjoyment of rights protected by the Fourteenth Amendment are permitted as long as the segregated facilities provided for Negroes are substantially equal to those provided for other racial groups. In each case in this Court where a state scheme of racism has been deemed susceptible of rationalization under the separate but equal formula, it has been urged as a defense.

A careful reading of the cases, however, reveals that this doctrine has received only very limited and restricted application in the actual decisions of this Court, and even that support has been eroded by more recent decisions. See particularly McLaurin v. Oklahoma State Regents; Sweatt v. Painter. Whatever appeal the separate but equal doctrine might have had, it stands mirrored today as the faulty conception of an era dominated by provincialism, by intense emotionalism in race relations caused by local and temporary conditions and by the preaching of a doctrine of racial superiority that contradicted the basic concept upon which our society was founded. Twentieth-century America, fighting racism at home and abroad, has rejected the race views of Plessy v. Ferguson because we have come to the realization that such views obviously tend to preserve not the strength but the weaknesses of our heritage.

A. Racial segregation cannot be squared with the rationale of the early cases interpreting the reach of the Fourteenth Amendment

In the Slaughter House Cases, 16 Wall. 36—the first case decided under the Fourteenth Amendment—the Court, drawing on its knowledge of an almost contemporaneous event, recognized that the Fourteenth Amendment secured to Negroes full citizenship rights and prohibited any state action discriminating against them as a class on account of their race. Thus, addressing itself to the intent of the Thirteenth, Fourteenth and Fifteenth Amendments, the Court said at pages 71 and 72:

"We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth."

The real purpose of the equal protection clause was discussed in these terms at page 81:

"In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden." (Emphasis supplied.)

So convinced was the Court that the overriding purpose of the Fourteenth Amendment was to protect the Negro against discrimination that it declared further at page 81:

"We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other."

In Strauder v. West Virginia, 100 U.S. 303, the Court, on page 306, viewed the Fourteenth Amendment in the same light and stated that its enactment was aimed to secure for the Negro all the civil rights enjoyed by white persons:

"It was in view of these considerations the 14th Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the General Government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation." (Emphasis supplied).

Clearly recognizing the need to construe the Amendment liberally in order to protect the Negro, the Court noted at page 307:

"If this is the spirit and meaning of the Amendment, whether it means more or not, it is to be construed liberally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to be also citizens of the State in which they reside)."

It was explicitly stated at pages 307, 308 that the Amendment prevented laws from distinguishing between colored and white persons:

"What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States and, in regard to the colored race, for whose protection the Amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctly as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." (Emphasis supplied).

Any distinction based upon race was understood as constituting a badge of inferiority, at page 308:

"The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them, affixed by the law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others."

There was no doubt that this new constitutional provision had changed the relationship between the federal government and the states so that the federal courts could and should now protect these new rights. At page 309 the Court said:

"The framers of the constitutional Amendment must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was, doubtless, a motive that led to the Amendment. By their manumission and citizenship the colored race became entitled to the equal protection of the laws of the States in which they resided; and the apprehension that, through prejudice, they might be denied that equal protection, that is, that there might be discrimination against them, was the inducement to bestow upon the National Government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended existence of prejudice that portion of the Amendment would have been unnecessary, and it might have been left to the States to extend equality of protection."

That law must not distinguish between colored and white persons was the thesis of all the early cases. United States v. Cruikshank, 92 U.S. 542, 554, 555; Virginia v. Rives, 100 U.S. 313; Ex Parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky, 107 U.S. 110; Civil Rights Cases, 109 U.S. 3, 36, 43. As early as Yick Wo v. Hopkins, 118 U.S. 356, it became settled doctrine that the Fourteenth Amendment was a broad prohibition against state enforcement of racial differentiations or discrimination—a prohibition totally at war with any separate but equal notion. There can be no doubt, we submit, that, had the state regulation approved in Plessy v. Ferguson been before the Court that rendered the initial interpretations of the Fourteenth Amendment, the regulation would have been held a violation of the Federal Constitution.

B. The first time the question came before the Court, racial segregation in transportation was specifically disapproved

In Railroad Co. v. Brown, 17 Wall. 445, the first case involving the validity of segregation to reach this Court after the adoption of the Fourteenth Amendment, segregation was struck down as an unlawful discrimination. While the Fourteenth Amendment was not before the Court, the decision in the Brown case was in line with the spirit of the new status that the Negro had gained under the Thirteenth, Fourteenth and Fifteenth Amendments.

The problem before the Court concerned the validity of the carrier's rules and regulations that sought to segregate its passengers because of race. The pertinent facts are described by the Court as follows at page 451:

"In the enforcement of this regulation, the defendant in error, a person of color, having entered a car appropriated to white ladies, was requested to leave it and take a seat in another car used for colored persons. This she refused to do, and this refusal resulted in her ejectment by force and with insult from the car she had first entered."

The Court characterized the railroad's defense that its practice of providing separate accommodations for Negroes was valid, as an ingenious attempt at evasion, at page 452:

"The plaintiff in error contends that it has literally obeyed the direction, because it has never excluded this class of persons from the cars, but on the contrary, has always provided accommodations for them.

"This is an ingenious attempt to evade a compliance with the obvious meaning of the requirement. It is true the words taken literally might bear the interpretation put upon them by the plaintiff in error, but evidently Congress did not use them in any such limited sense. There was no occasion, in legislating for a railroad corporation, to annex a condition to a grant of power, that the company should allow colored persons to ride in its cars. This right had never been refused, nor could there have been in the mind of anyone an apprehension that such a state of things would ever occur, for self-interest would clearly induce the carrier—South as well as North—to transport, if paid for it, all persons whether white or black, who should desire transportation."

The Court stressed with particularity the fact that the discrimination prohibited was discrimination in the use of the cars, at pages 452–453:

"It was the discrimination in the use of the cars on account of color, where slavery obtained, which was the subject of discussion at the time, and not the fact that the colored race could not ride in the cars at all. Congress, in the belief that this discrimination was unjust, acted. It told this company, in substance, that it could extend its road in the District as desired, but that this discrimination must cease, and the colored and white race, in the use of the cars, be placed on an equality. This condition it had the right to impose, and in the temper of Congress at the time, it is manifest the grant could not have been made without it."

The regulation that was struck down in the Brown case sought to accomplish exactly what was achieved under a state statute upheld subsequently in Plessy v. Ferguson—the segregation of Negro and white passengers. It is clear, therefore, that in this earlier decision the Court considered segregation per se discrimination and a denial of equality.

C. 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

In Plessy v. Ferguson, this Court for the first time gave approval to state imposed racial distinctions as consistent with the purposes and meaning of the Fourteenth Amendment. The Court described the aims and purposes of the Fourteenth Amendment in the same manner as had the earlier cases, at page 543:

"… its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the states, and to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the states."

But these defined aims and purposes were now considered consistent with the imposition of legal distinctions based upon race. The Court said at 544, 551–552:

"The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.

* * *

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

And reasonableness of the regulation was found in established social usage, custom and tradition, at page 550:

"So far, then, as a conflict with the 14th Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order."

In Plessy, through distortion of the concept of "social" rights as distinguished from "civil" rights, the right to civil equality as one of the purposes of the Fourteenth Amendment was given a restricted meaning wholly at variance with that of the earlier cases and the intent of the framers as defined by this Court. Indeed, civil rights, as defined by that Court, seem merely to encompass those rights attendant upon use of the legal process and protection against complete exclusion pursuant to state mandate. Race for the first time since the adoption of the Fourteenth Amendment was sanctioned as a constitutionally valid basis for state action, and reasonableness for the racial distinctions approved was found in the social customs, usages and traditions of a people only thirty-one years removed from a slave society.

Under this rationale the Court sought to square its approval of racial segregation with the Slaughter House Cases, Strauder v. West Virginia and the other precedents. It is clear, however, that the early cases interpreted the Fourteenth Amendment as encompassing that same category of rights which were involved in Plessy v. West Virginia—the right to be free of a racial differentiation imposed by the state in the exercise of any civil right. And the Court's attempt to distinguish Railroad Co. v. Brown, as a case of exclusion, was the very argument that has been specifically rejected in the Brown case as a sophisticated effort to avoid the obvious implications of the Congressional requirement. Thus, the separate but equal doctrine is a rejection of the precedents and constitutes a break in the development of constitutional law under which the Fourteenth Amendment has been interpreted as a fundamental interdiction against state imposed differentiations and discriminations based upon color.

D. The separate but equal doctrine was conceived in error

The separate but equal doctrine of Plessy v. Ferguson, we submit, has aided and supported efforts to nullify the Fourteenth Amendment's undoubted purpose—equal status for Negroes—as defined again and again by this Court. The fallacious and pernicious implications of the doctrine were evident to Justice Harlan and are set out in his dissenting opinion. It is clear today that the fact that racial segregation accords with custom and usage or is considered needful for the preservation of public peace and good order does not suffice to give constitutional validity to the state's action. What the doctrine has in fact accomplished is to deprive Negroes of the protection of the approved test of reasonable classifications which is available to everyone else who challenges legislative categories or distinctions of whatever kind.

1. The dissenting opinion of Justice Harlan in Plessy v. Ferguson. Justice Harlan recognized and set down for history the purpose of segregation and the implications of the separate but equal doctrine and evidenced prophetic insight concerning the inevitable consequences of the Court's approval of racial segregation. He said at page 557: "The thing to accomplish was, under the guise of giving equal accommodations for whites and blacks to compel the latter to keep to themselves while traveling in railroad passenger coaches."

He realized at page 560, moreover, that the approved regulations supported the inferior caste thesis of Scott v. Sandford, 19 How. 393, supposedly eradicated by the Civil War Amendments: "But it seems that we have yet, in some of the states, a dominant race, a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, on the basis of race." And at page 562: "We boast of the freedom enjoyed by our people above all other people. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law."

While the majority opinion sought to rationalize its holding on the basis of the state's judgment that separation of races was conducive to public peace and order, Justice Harlan knew all too well that the seeds for continuing racial animosities had been planted. He said at pages 560–561:

"The sure guaranty of peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned."

"Our Constitution," said Justice Harlan at 559, "is color-blind, and neither knows nor tolerates classes among citizens." It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the Fourteenth Amendment as consistently defined by this Court both before and after 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. The analysis by Justice Harlan of the bases for the majority opinion in Plessy v. Ferguson was adopted by this Court in Chiles v. Chesapeake & Ohio Railroad Company, 218 U.S. 71, 77, 78. There this Court cited Plessy v. Ferguson as authority for sustaining the validity of legislative distinctions based upon race and color alone.

The importance of this case is its clear recognition and understanding that in Plessy v. Ferguson this Court approved the enforcement of racial distinctions as reasonable because they are in accordance with established social usage, custom and tradition. The Court said at pages 77, 78:

"It is true the power of a legislature to recognize a racial distinction was the subject considered, but if the test of reasonableness in legislation be, as it was declared to be, 'the established usages, customs and traditions of the people,' and the 'promotion of their comfort and the preservation of the public peace and good order,' this must also be the test of reasonableness of the regulations of a carrier, made for like purposes and to secure like results."

But the very purpose of the Thirteenth, Fourteenth and Fifteenth Amendments was to effectuate a complete break with governmental action based on the established usages, customs and traditions of the slave era, to revolutionize the legal relationship between Negroes and whites, to destroy the inferior status of the Negro and to place him upon a plane of complete equality with the white man. As we will demonstrate, post Civil War reestablishment of ante-bellum custom and usage, climaxed by the decision in Plessy v. Ferguson, reflected a constant effort to return the Negro to his pre-Thirteenth, Fourteenth Amendment inferior status. When the Court employed the old usages, customs and traditions as the basis for determining the reasonableness of segregation statutes designed to resubjugate the Negro to an inferior status, it nullified the acknowledged intention of the framers of the Amendment, and made a travesty of the equal protection clause of the Fourteenth Amendment.

Here, again, the Plessy v. Ferguson decision is out of line with the modern holdings of this Court, for in a variety of cases involving the rights of Negroes it has constantly refused to regard custom and usage, however widespread, as determinative of reasonableness. This was true in Smith v. Allwright, of a deeply entrenched custom and usage of excluding Negroes from voting in the primaries. It was true in Shelley v. Kraemer, of a long standing custom excluding Negroes from the use and ownership of real property on the basis of race. In Henderson v. United States, a discriminatory practice of many years was held to violate the Interstate Commerce Act. In the Sweatt and McLaurin decisions, the Court broke a southern tradition of state-enforced racial distinctions in graduate and professional education—a custom almost as old as graduate and professional education, itself.

In each instance the custom and usage had persisted for generations and its durability was cited as grounds for its validity. If this were the only test, ours indeed would become a stagnant society. Even if there be some situations in which custom, usage and tradition may be considered in testing the reasonableness of governmental action, customs, traditions and usages rooted in slavery cannot be worthy of the constitutional sanction of this Court.

3. Preservation of public peace cannot justify deprivation of constitutional rights. The fallacy underlying Plessy v. Ferguson of justifying racially-discriminatory statutes as essential to the public peace and good order has been completely exposed by Frederick W. Lehmann, a former Solicitor General of the United States, and Wells H. Blodgett in their Brief as amici curiae in Buchanan v. Warley, 245 U.S. 60. Their statements warrant repetition here:

"The implication of the title of the ordinance is, that unless the white and colored people live in separate blocks, ill feeling will be engendered between them and conflicts will result and so it is assumed that a segregation of the races is necessary for the preservation of the public peace and the promotion of the general welfare. There is evidence in the record that prior to the enactment of the ordinance there were instances of colored people moving into white blocks and efforts by the white people to drive them out by violence. So to preserve the peace, the ordinance was enacted not to repress the lawless violence, but to give the sanction of the law to the motives which inspired it and to make the purpose of it lawful.

"The population of Louisville numbers two hundred and fifty thousand, of whom about one-fifth are colored. The ordinance, almost upon its face, and clearly by the evidence submitted and the arguments offered in support of it is a discriminating enactment by the dominant majority against a minority who are held to be an inferior people. It cannot be justified by the recitals of the title, even if they are true. Many things may rouse a man's prejudice or stir him to anger, but he is not always to be humored in his wrath. The question may arise, 'Dost thou well to be angry?'" (Brief Amici Curiae, pp. 2 and 3).

Accepting this view, the Court in Buchanan v. Warley rejected the argument that a state could deny constitutional rights with impunity in its efforts to maintain the public peace:

"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution" (245 U.S. 60, 81).

Accord, Morgan v. Virginia, supra; Monk v. City of Birmingham, 185 F. 2d 859 (CA 5th 1950), cert. denied, 341 U.S. 940.

Thus, the bases upon which the separate but equal doctrine was approved in the Plessy v. Ferguson case have all been uprooted by subsequent decisions of this Court. All that remains is the naked doctrine itself, unsupported by reason, contrary to the intent of the framers, and out of tune with present notions of constitutional rights. Repudiation of the doctrine itself, we submit, is long overdue.

4. The separate but equal doctrine deprives Negroes of that protection which the Fourteenth Amendment accords under the general classification test. One of the ironies of the separate but equal doctrine of Plessy v. Ferguson is that under it, the Fourteenth Amendment, the primary purpose of which was the protection of Negroes, is construed as encompassing a narrower area of protection for Negroes than for other persons under the general classification test.

Early in its history, the Fourteenth Amendment was construed as reaching not only state action based upon race and color, but also as prohibiting all unreasonable classifications and distinctions even though not racial in character. Barbier v. Connolly, 113 U.S. 27, seems to be the earliest case to adopt this concept of the Amendment. There the Court said on page 31:

"The Fourteenth Amendment … undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights."

Accord: Minneapolis & St. Louis Ry. Co. v. Beckwith, 129 U.S. 26, 28, 29; Bell's Gap R. R. Co. v. Pennsylvania, 134 U.S. 232, 237; McPherson v. Blacker, 146 U.S. 1, 39; Yesler v. Board of Harbor Line Commissioners, 146 U.S. 646, 655; Giozza v. Tiernan, 148 U.S. 657, 662; Marchant v. Pennsylvania R. Co., 153 U.S. 380, 390; Moore v. Missouri, 159 U.S. 673, 678.

In effectuating the protection afforded by this secondary purpose, the Court has required the classification or distinction used be based upon some real or substantial difference pertinent to a valid legislative objective. E.g., Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389; Truax v. Raich, 239 U.S. 33; Smith v. Cahoon, 283 U.S. 553; Mayflower Farms v. Ten Eyck, 297 U.S. 266; Skinner v. Oklahoma, 316 U.S. 535. See also Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 186.

Justice Holmes in Nixon v. Herndon, 273 U.S. 536, 541, recognized and restated a long established and well settled judicial proposition when he described the Fourteenth Amendment's prohibition against unreasonable legislative classification as less rigidly proscriptive of state action than the Amendment's prohibition of color differentiation. There he concluded:

"States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case."

But the separate but equal doctrine substitutes race for reasonableness as the constitutional test of classification. We submit, it would be a distortion of the purposes and intendment of the Fourteenth Amendment to deny to those persons for whose benefit that provision was primarily intended the same measure of protection afforded by a rule of construction evolved to reach the Amendment's subsidiary and secondary objectives. We urge this Court to examine the segregation statutes in these cases to determine whether the statutes seek to serve a permissible legislative objective; and, if any permissible objective is found, whether color differentiation has pertinence to it. So examined, the constitutional provisions and statutes involved here disclose unmistakably their constitutional infirmity.

E. The separate but equal doctrine has not received unqualified approval in this Court

Even while the separate but equal doctrine was evolving, this Court imposed limitations upon its applications. In Buchanan v. Warley, the Court, after reviewing the limited acceptance which the doctrine had received, concluded that its extension to approve state enforced segregation in housing was not permissible.

Ten years later in Gong Lum v. Rice, 275 U.S. 78, 85, 86, without any intervening development in the doctrine in this Court, sweeping language was used which gave the erroneous impression that this Court already had extended the application of the doctrine to the field of education. And in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, the doctrine is mentioned in passing as if its application to public education were well established. But, what Justice Day was careful to point out in Buchanan v. Warley, was true then and is true now—the separate but equal doctrine has never been extended by this Court beyond the field of transportation in any case where such extension was contested.

While the doctrine itself has not been specifically repudiated as a valid constitutional yardstick in the field of public education, in cases in which this Court has had to determine whether the state had performed its constitutional obligation to provide equal education opportunities—the question presented here—the separate but equal doctrine has never been used by this Court to sustain the validity of the state's separate school laws. Missouri ex rel. Gaines v. Canada; Sipuel v. Board of Regents, 332 U.S. 631; Sweatt v. Painter; McLaurin v. Oklahoma State Regents.

Earlier educational cases, not concerned with equality, did not apply the doctrine. In Cumming v. County Board of Education, 175 U.S. 528, the question was explicitly beyond the scope of the decision rendered. In Berea College v. Kentucky, 211 U.S. 45, the question was reserved. In Gong Lum v. Rice, the separate but equal doctrine was not put in issue. Instead of challenging the validity of the Mississippi school segregation laws, the Chinese child merely objected to being classified as a Negro for public school purposes.

Even in the field of transportation, subsequent decisions have sapped the doctrine of vitality. Henderson v. United States, in effect overruled Chiles v. Chesapeake & Ohio Railway Co., 218 U.S. 71. See Chance v. Lambeth, 186 F. 2d 879 (CA 4th 1951), cert. denied, 341 U.S. 91. Morgan v. Virginia, places persons traveling in interstate commerce beyond the thrust of state segregation statutes. Thus, the reach of the separate but equal doctrine approved in the Plessy case has now been so severely restricted and narrowed in scope that, it may be appropriately said of Plessy v. Ferguson as it was said of Crowell v. Benson, 285 U.S. 22, "one had supposed that the doctrine had earned a deserved repose." Estep v. United States, 327 U.S. 114, 142 (concurring opinion).

F. The necessary consequence of the Sweatt and McLaurin decisions is repudiation of the separate but equal doctrine

While Sweatt v. Painter and McLaurin v. Oklahoma State Regents were not in terms rejections of the separate but equal doctrine, their application in effect destroyed the practice of segregation with respect to state graduate and professional schools. Wilson v. Board of Supervisors, 92 F. Supp. 986 (E. D. La. 1950), aff'd, 340 U.S. 909; Gray v. Board of Trustees of University of Tennessee, 342 U.S. 517; McKissick v. Carmichael, 187 F. 2d 949 (CA 4th 1951), cert. denied, 341 U.S. 951; Swanson v. University of Virginia, Civil Action #30 (W. D. Va. 1950) unreported; Payne v. Board of Supervisors, Civil Action #894 (E. D. La. 1952) unreported; Foister v. Board of Supervisors, Civil Action #937 (E. D. La. 1952) unreported; Mitchell v. Board of Regents of University of Maryland, Docket #16, Folio 126 (Baltimore City Court 1950) unreported.¹

In the Sweatt case, the Court stated that, with members of the state's dominant racial groups excluded from the segregated law school which the state sought to require Sweatt to attend, "we cannot conclude that the education offered petitioner is substantially equal to that he would receive if admitted to the University of Texas." If this consideration is one of the controlling factors in determining substantial equality at the law school level, it is impossible for any segregated law school to be an equal law school. And pursuant to that decision one of the oldest and best state-supported segregated law schools in the country was found unequal and Negro applicants were ordered admitted to the University of North Carolina. McKissick v. Carmichael. Thus, substantial equality in professional education is "substantially equal" only if there is no racial segregation.

In the McLaurin case, the racial distinctions imposed in an effort to comply with the state's segregation laws were held to impair and inhibit ability to study, to exchange views with other students and, in general, to learn one's profession. The state, therefore, was required to remove all restrictions and to treat McLaurin the same way as other students are treated. Consequently these decisions are a repudiation of the separate but equal doctrine.

III. VIEWED IN THE LIGHT OF HISTORY THE SEPARATE BUT EQUAL DOCTRINE HAS BEEN AN INSTRUMENTALITY OF DEFIANT NULLIFICATION OF THE FOURTEENTH AMENDMENT

The history of segregation laws reveals that their main purpose was to organize the community upon the basis of a superior white and an inferior Negro caste. These laws were conceived in a belief in the inherent inferiority of Negroes, a concept taken from slavery. Inevitably, segregation in its operation and effect has meant inequality consistent only with the belief that the people segregated are inferior and not worthy, or capable, of enjoying the facilities set apart for the dominant group.

Segregation originated as a part of an effort to build a social order in which the Negro would be placed in a status as close as possible to that he had held before the Civil War. The separate but equal doctrine furnished a base from which those who sought to nullify the Thirteenth, Fourteenth and Fifteenth Amendments were permitted to operate in relative security. While this must have been apparent at the end of the last century, the doctrine has become beclouded with so much fiction that it becomes important to consider the matter in historical context to restore a proper view of its meaning and import.

A. The status of the Negro, slave and free, prior to the Civil War

One of the basic assumptions of the slave system was the Negro's inherent inferiority.² As the invention of the cotton gin rendered slavery essential to the maintenance of the plantation economy in the South, a body of pseudo-scientific thought developed in passionate defense of slavery, premised on the Negro's unfitness for freedom and equality.³ Thus, the Negro's inferiority with respect to brain capacity, lung activity and countless other physiological attributes was purportedly established by some of the South's most respected scientists.⁴ In all relationships between the two races the Negro's place was that of an inferior, for it was claimed that any other relationship status would automatically degrade the white man.⁵

This concept of the Negro as an inferior fit only for slavery was complicated by the presence of several hundred thousand Negroes, who although not slaves, could not be described as free men.⁶ In order that they would not constitute a threat to the slave regime, free Negroes were denied the full rights and privileges of citizens. They enjoyed no equality in the courts, their right to assemble was denied, their movements were proscribed, and education was withheld.⁷ Their plight, in consequence of these proscriptions, invited the unfavorable comparison of them with slaves and confirmed the views of many that Negroes could not profit by freedom. They were regarded by the white society as the "very drones and pests of society," pariahs of the land, and an incubus on the body politic.⁸ Even this Court, in Scott v. Sandford, recognized this substantial body of opinion to the effect that free Negroes had no rights that a white man was bound to respect.

The few privileges that free Negroes enjoyed were being constantly whittled away in the early nineteenth century. By 1836, free Negroes were denied the ballot in every southern state and in many states outside the South.⁹ In some states, they were denied residence on penalty of enslavement; and in some, they were banned from the mechanical trades because of the economic pressure upon the white artisans.¹⁰ Before the outbreak of the Civil War, the movement to reenslave free Negroes was under way in several states in the South.¹¹

This ante-bellum view of the inferiority of the Negro persisted after the Civil War among those who already regarded the newly freed slaves as simply augmenting the group of free Negroes who had been regarded as "the most ignorant … vicious, impoverished, and degraded population of this country."¹²

B. The post war struggle

The slave system had supported and sustained a plantation economy under which 1,000 families received approximately $50,000,000 a year with the remaining 600,000 families receiving about $60,000,000 per annum. The perfection of that economy meant the ruthless destruction of the small independent white farmer who was either bought out or driven back to the poorer lands—the slaveholders controlled the destiny of both the slave and the poor whites.¹³ Slaves were not only farmers and unskilled laborers but were trained by their masters as skilled artisans. Thus, slave labor was in formidable competition with white labor at every level, and the latter was the more expendable for it did not represent property and investment. Only a few white supervisory persons were needed to insure the successful operation of the plantation system.

After the Civil War, the independent white farmer entered into cotton cultivation and took over the lands of the now impracticable large plantations. Within a few years the independent farmer was engaged in 40% of the cotton cultivation, and by 1910 this percentage had risen to 67%.¹⁴ To the poor white Southerner the new Negro, as a skilled farmer and artisan in a free competitive economy, loomed as an even greater economic menace than he had been under the slave system. They became firm advocates of the Negro's subjugation to insure their own economic well being.¹⁵

The plantation aristocracy sought to regain their economic and political pre-eminence by rebuilding the prewar social structure on the philosophy of the Negro's inferiority. This group found that they could build a new economic structure based upon a depressed labor market of poor whites and Negroes. Thus, to the aristocracy, too, the Negro's subjugation was an economic advantage.

The mutual concern of these two groups of white Southerners for the subjugation of the Negro gave them a common basis for unity in irreconcilable resistance to the revolutionary change in the Negro's status which the Civil War Amendments were designed to effect. Their attitude towards the Fourteenth Amendment is best described by a Mississippi editor who said that the southern states were not prepared "to become parties to their own degradation."¹⁶ There were white southerners, however, as there always had been, who sought to build a society which would respect and dignify the rights of the Freedmen. But this group was in the minority and southern sentiment in bitter opposition to Negro equality prevailed. Accordingly, as a temporary expedient, even as an army of occupation has been necessary recently in Germany and Japan to prevent lawlessness by irreconcilables and the recrudescense of totalitarianism, so Union forces were needed during Reconstruction to maintain order and to make possible the development of a more democratic way of life in the states recently in rebellion.

The Thirteenth, Fourteenth and Fifteenth Amendments and the Reconstruction effort, implemented by those in the South who were coming to accept the new concept of the Negro as a free man on full terms of equality, could have led to a society free of racism. The possibility of the extensive establishment and expansion of mixed schools was real at this stage. It was discussed in every southern state, and in most states serious consideration was given to the proposal to establish them.¹⁷

C. The Compromise of 1877 and the abandonment of Reconstruction

The return to power of the southern irreconcilables was finally made possible by rapprochement between northern and southern economic interests culminating in the compromise of 1877. In the North, control of the Republican Party passed to those who believed that the protection and expansion of their economic power could best be served by political conciliation of the southern irreconcilables, rather than by unswerving insistence upon human equality and the rights guaranteed by the post war Amendments. In the 1870's those forces that held fast to the notion of the Negro's preordained inferiority returned to power in state after state, and it is significant that one of the first measures adopted was to require segregated schools on a permanent basis in disregard of the Fourteenth Amendment.¹⁸

In 1877, out of the exigencies of a close and contested election, came a bargain between the Republican Party and the southern leaders of the Democratic Party which assured President Hayes' election, led to the withdrawal of federal troops from the non-redeemed states and left the South free to solve the Negro problem without apparent fear of federal intervention. This agreement preserved the pragmatic and material ends of Reconstruction at the expense of the enforcement of not only the Fourteenth Amend-ment but the Fifteenth Amendment as well.¹⁹ For it brought in its wake peonage and disfranchisement as well as segregation and other denials of equal protection. Although there is grave danger in oversimplification of the complexities of history, on reflection it seems clear that more profoundly than constitutional amendments and wordy statutes, the Compromise of 1877 shaped the future of four million freedmen and their progeny for generations to come. For the road to freedom and equality, which had seemed sure and open in 1868, was now to be securely blocked and barred by a maze of restrictions and limitations proclaimed as essential to a way of life.

D. Consequences of the 1877 Compromise

Once the South was left to its own devices, the militant irreconcilables quickly seized or consolidated power. Laws and practices de-signed to achieve rigid segregation and the disfranchisement of the Negro came on in increasing numbers and harshness.

The policy of the southern states was to destroy the political power of the Negro so that he could never seriously challenge the order that was being established. By the poll tax, the Grandfather Clause, the white primary, gerry-mandering, the complicated election procedures, and by unabated intimidation and threats of violence, the Negro was stripped of effective political participation.²⁰

The final blow to the political respectability of the Negro came with disfranchisement in the final decade of the Nineteenth Century and the early years of the present century when the discriminatory provisions were written into the state constitutions.²¹ That problem the Court dealt with during the next forty years from Guinn v. United States, 238 U.S. 347 to Terry v. Adams, 345 U.S. 461.

A movement to repeal the Fourteenth and Fifteenth Amendments shows the extremity to which the irreconcilables were willing to go to make certain that the Negro remained in an inferior position. At the Mississippi Constitutional Convention of 1890, a special committee studied the matter and concluded that "the white people only are capable of conducting and maintaining the government" and that the Negro race, "even if its people were educated, being wholly unequal to such responsibility," should be excluded from the franchise. It, therefore, resolved that the "true and only efficient remedy for the great and important difficulties" that would ensue from Negro participation lay in the "repeal of the Fifteenth Amendment … whereby such restrictions and limitations may be put upon Negro suffrage as may be necessary and proper for the maintenance of good and stable government … "²²

A delegate to the Virginia Constitutional Convention of 1901–1902 submitted a resolution calling for a repeal of the Fifteenth Amendment because it is wrong, "in that it proceeds on the theory that the two races are equally competent of free government."²³ Senator Edward Carmack of Tennessee gave notice in 1903 that he would bring in a bill to repeal the Amendments.²⁴ The movement, though unsuccessful, clearly illustrates the temper of the white South.

Having consigned the Negro to a permanently inferior caste status, racist spokesmen, with unabashed boldness, set forth views regarding the Negro's unassimilability and uneducability even more pernicious than those held by the old South. Ben Tillman, the leader of South Carolina, declared that a Negro should not have the same treatment as a white man, "for the simple reason that God Almighty made him colored and did not make him white." He lamented the end of slavery which reversed the process of improving the Negro and "inoculated him with the virus of equality."²⁵ These views were expressed many times in the disfranchising conventions toward the end of the century.²⁶ Nor were the politicians alone in uttering such views about the Negro. Drawing on the theory of evolution as expressed by Darwin and the theory of progress developed by Spencer, persons of scholarly pretension speeded the work of justifying an inferior status for the Negro.²⁷ Alfred H. Stone, having the reputation of a widely respected scholar in Mississippi, declared that the "Negro was an inferior type of man with predominantly African customs and character traits whom no amount of education or improvement of environmental conditions could ever elevate to as high a scale in the human species as the white man." As late as 1910, E. H. Randle in his Characteristics of the Southern Negro declared that "the first important thing to remember in judging the Negro was that his mental capacity was inferior to that of the white man."²⁸

Such was the real philosophy behind the late 19th Century segregation laws—an essential part of the whole racist complex. Controlling economic and political interests in the South were convinced that the Negro's subjugation was essential to their survival, and the Court in Plessy v. Ferguson had ruled that such subjugation through public authority was sanctioned by the Constitution. This is the overriding vice of Plessy v. Ferguson. For without the sanction of Plessy v. Ferguson, archaic and provincial notions of racial superiority could not have injured and disfigured an entire region for so long a time. The full force and effect of the protection afforded by the Fourteenth Amendment was effectively blunted by the vigorous efforts of the proponents of the concept that the Negro was inferior. This nullification was effectuated in all aspects of Negro life in the South, particularly in the field of education, by the exercise of state power.

As the invention of the cotton gin stilled the voices of Southern Abolitionists, Plessy v. Ferguson chilled the development in the South of opinion conducive to the acceptance of Negroes on the basis of equality because those of the white South desiring to afford Negroes the equalitarian status which the Civil War Amendments had hoped to achieve were barred by state law from acting in accordance with their beliefs. In this connection, it is significant that the Populist movement flourished for a short period during the 1890's and threatened to take over political control of the South through a coalition of the poor Negro and poor white farmers.²⁹ This movement was completely smashed and since Plessy v. Ferguson no similar phenomenon has taken hold.

Without the "constitutional" sanction which Plessy v. Ferguson affords, racial segregation could not have become entrenched in the South, and individuals and local communities would have been free to maintain public school systems in conformity with the underlying purposes of the Fourteenth Amendment by providing education without racial distinctions. The doctrine of Plessy v. Ferguson was essential to the successful maintenance of a racial caste system in the United States. Efforts toward the elimination of race discrimination are jeopardized as long as the separate but equal doctrine endures. But for this doctrine we could more confidently assert that ours is a democratic society based upon a belief in individual equality.

E. Nullification of the rights guaranteed by the Fourteenth Amendment and the reestablishment of the Negro's pre–Civil War inferior status fully realized

Before the end of the century, even without repeal of the Fourteenth and Fifteenth Amendments, those forces committed to a perpetuation of the slave concept of the Negro had realized their goal. They had defied the federal government, threatened the white defenders of equal rights, had used intimidation and violence against the Negro and had effectively smashed a political movement designed to unite the Negro and the poor whites. Provisions requiring segregated schools were written into state constitutions and statutes. Negroes had been driven from participation in political affairs, and a veritable maze of Jim Crow laws had been erected to "keep the Negro in his place" (of inferiority), all with impunity. There was no longer any need to pretend either that Negroes were getting an education equal to the whites or were entitled to it.

In the Constitutional Convention of Virginia, 1901–1902, Senator Carter Glass, in explaining a resolution requiring that state funds be used to maintain primary schools for four months before being used for establishment of higher grades, explained that "white people of the black sections of Virginia should be permitted to tax themselves, and after a certain point had been passed which would safeguard the poorer classes of those communities, divert that fund to the exclusive use of white children…."³⁰

Senator Vardaman thought it was folly to make such pretenses. In Mississippi there were too many people to educate and not enough money to go around, he felt. The state, he insisted, should not spend as much on the education of Negroes as it was doing. "There is no use multiplying words about it," he said in 1899, "the negro will not be permitted to rise above the station he now fills." Money spent on his education was, therefore, a "positive unkindness" to him. "It simply renders him unfit for the work which the white man has prescribed and which he will be forced to perform."³¹ Vardaman's scholarly compatriot, Dunbar Rowland, seconded these views in 1902, when he said that "thoughtful men in the South were beginning to lose faith in the power of education which had been heretofore given to uplift the negro," and to complain of the burden thus placed upon the people of the South in their poverty.³²

The views of Tillman, Vardaman, Stone, Rowland, Glass and others were largely a justification for what had been done by the time they uttered them. The South had succeeded in setting up the machinery by which it was hoped to retain the Negro in an inferior status. Through separate, inferior schools, through an elaborate system of humiliating Jim Crow, and through effective disfranchisement of the Negro, the exclusive enjoyment of first-class citizenship had now become the sole possession of white persons.

And, finally, the Negro was effectively restored to an inferior position through laws and through practices, now dignified as "custom and tradition." Moreover, this relationship—of an inferior Negro and superior white status—established through laws, practice, custom and tradition, was even more rigidly enforced than in the ante-bellum era. As one historian has aptly stated:

"Whether by state law or local law, or by the more pervasive coercion of sovereign white opinion, 'the Negro's place' was gradually defined—in the courts, schools, and libraries, in parks, theaters, hotels, and residential districts, in hospitals, insane asylums—everywhere including on sidewalks and in cemeteries. When complete, the new codes of White Supremacy were vastly more complex than the antebellum slave codes or the Black Codes of 1865–1866, and, if anything, they were stronger and more rigidly enforced."³³

This is the historic background against which the validity of the separate but equal doctrine must be tested. History reveals it as a part of an overriding purpose to defeat the aims of the Thirteenth, Fourteenth and Fifteenth Amendments. Segregation was designed to insure inequality—to discriminate on account of race and color—and the separate but equal doctrine accommodated the Constitution to that purpose. Separate but equal is a legal fiction. There never was and never will be any separate equality. Our Constitution cannot be used to sustain ideologies and practices which we as a people abhor.

That the Constitution is color blind is our dedicated belief. We submit that this Court cannot sustain these school segregation laws under any separate but equal concept unless it is willing to accept as truths the racist notions of the perpetuators of segregation and to repeat the tragic error of the Plessy court supporting those who would nullify the Fourteenth Amendment and the basic tenet of our way of life which it incorporates. We respectfully suggest that it is the obligation of this Court to correct that error by holding that these laws and constitutional provisions which seek to condition educational opporatunities on the basis of race and color are historic aberrations and are inconsistent with the federal Constitution and cannot stand. The separate but equal doctrine of Plessy v. Ferguson should now be overruled.

CONCLUSION TO PART ONE

In short, our answer to Question No. 3 proposed by the Court is that it is within the judicial power, whatever the evidence concerning Questions 2(a) and (b) may disclose, to hold that segregated schools violate the Fourteenth Amendment, and for the reasons herein above stated that such power should now be exercised.

WHEREFORE, it is respectfully submitted that constitutional provisions and statutes involved in these cases are invalid and should be struck down.

PART TWO

This portion of the brief is directed to questions one and two propounded by the Court:

1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?
2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment
3. that future Congresses might, in the exercise of their power under Sec. 5 of the Amendment, abolish such segregation, or
4. that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force?"

I. THE FOURTEENTH AMENDMENT WAS INTENDED TO DESTROY ALL CASTE AND COLOR LEGISLATION IN THE UNITED STATES, INCLUDING RACIAL SEGREGATION

Research by political scientists and historians, specialists on the period between 1820 and 1900, and other experts in the field, as well as independent research by attorneys in these cases, convinces us that: (1) there is ample evidence that the Congress which submitted and the states which ratified the Fourteenth Amendment contemplated and understood that the Amendment would deprive the states of the power to impose any racial distinctions in determining when, where, and how its citizens would enjoy the various civil rights afforded by the states; (2) in so far as views of undeveloped public education in the 1860's can be applied to universal compulsory education in the 1950's, the right to public school education was one of the civil rights with respect to which the states were deprived of the power to impose racial distinctions; (3) while the framers of the Fourteenth Amendment clearly intended that Congress should have the power to enforce the provisions of the Amendment, they also clearly intended that the Amendment would be prohibitory on the states without Congressional action.

The historic background of the Fourteenth Amendment and the legislative history of its adoption show clearly that the framers intended that the Amendment would deprive the states of power to make any racial distinction in the enjoyment of civil rights. It is also clear that the statutes involved in these cases impose racial distinctions which the framers of the Amendment and others concerned with its adoption understood to be beyond the power of a state to enforce.

The framers of the Fourteenth Amendment were men who came to the 39th Congress with a well defined background of Abolitionist doctrine dedicated to the equalitarian principles of real and complete equality for all men. Congressional debates during this period must be read with an understanding of this background along with the actual legal and political status of the Negro at the end of the Civil War. This background gives an understanding of the determination of the framers of the Fourteenth Amendment to change the inferior legal and political status of Negroes and to give them the full protection of the Federal Government in the enjoyment of complete and real equality in all civil rights.³⁴

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

The men who wrote the Fourteenth Amendment were themselves products of a gigantic antislavery crusade which, in turn, was an expression of the great humanitarian reform movement of the Age of Enlightenment. This philosophy upon which the Abolitionists had taken their stand had been adequately summed up in Jefferson's basic proposition "that all men are created equal" and "are endowed by their Creator with certain unalienable Rights." To this philosophy they adhered with an almost fanatic devotion and an unswerving determination to obliterate any obstructions which stood in the way of its fulfillment. In their drive toward this goal, it may be that they thrust aside some then accepted notions of law and, indeed, that they attempted to give to the Declaration of Independence a substance which might have surprised its draftsmen. No matter, the crucial point is that their revolutionary drive was successful and that it was climaxed in the Amendment here under discussion.

The first Section of the Fourteenth Amendment is the legal capstone of the revolutionary drive of the Abolitionists to reach the goal of true equality. It was in this spirit that they wrote the Fourteenth Amendment and it is in the light of this revolutionary idealism that the questions propounded by this Court can best be answered.

In the beginning, the basic and immediate concern of the Abolitionists was necessarily slavery itself. The total question of removing all other discriminatory relationships after the abolition of slavery was at first a matter for the future. As a consequence, the philosophy of equality was in a state of continuous development from 1830 through the time of the passage of the Fourteenth Amendment. However, the ultimate objective was always clearly in mind—absolute and complete equality for all Americans.

During the pre–Civil War decades, the antislavery movement here and there began to develop special meaning and significance in the legal concept of "privileges and immunities," the concept of "due process" and the most important concept of all for these cases, "equal protection of the laws." In the immediately succeeding sections, we shall show how the development of these ideas culminated in a firm intention to obliterate all class distinction as a part of the destruction of a caste society in America.

The development of each of these conceptions was often ragged and uneven with much overlapping: what was "equal protection" to one was "due process" or "privilege and immunity" to another. However, regardless of the phrase used, the basic tenet of all was the uniform belief that Negroes were citizens and, as citizens, freedom from discrimination was their right. To them "discrimination" included all forms of racial distinctions.

Equality under law One tool developed to secure full standing for Negroes was the concept of equal protection of the laws. It was one thing, and a very important one, to declare as a political abstraction that "all men are created equal," and quite another to attach concrete rights to this state of equality. The Declaration of Independence did the former. The latter was Charles Sumner's outstanding contribution to American law.

The great abstraction of the Declaration of Independence was the central rallying point for the Abolitionists. When slavery was the evil to be attacked, no more was needed. But as some of the New England states became progressively more committed to abolition, the focus of interest shifted from slavery itself to the status and rights of the free Negro. In the Massachusetts legislature in the 1840's, Henry Wilson, manufacturer, Abolitionist, and later United States Senator and Vice President, led the fight against discrimination, with "equality" as his rallying cry.³⁵ One Wilson measure adopted by the Massachusetts Legislature in 1845 gave the right to recover damages to any person "unlawfully excluded" from the Massachusetts public schools.³⁶

Boston thereafter established a segregated school for Negro children, the legality of which was challenged in Roberts v. City of Boston, 5 Cush. (Mass.) 198 (1849). Charles Sumner, who later was to play such an important role in the Congress that formulated the Fourteenth Amendment, was counsel for Roberts. His oral argument, which the Abolitionists widely circulated, is one of the landmarks in the crystallization of the equalitarian concept.

This case was technically an action for damages under the Wilson Act. However, Sumner attacked segregation in public schools on the broader ground that segregation violated the Massachusetts Constitution which provided: "All men are created free and equal," and it was from this base that he launched his attack.

"Of Equality I shall speak, not as a sentiment, but as a principle….*** Thus it is with all moral and political ideas. First appearing as a sentiment, they awake a noble impulse, filling the soul with generous sympathy, and encouraging to congenital effort. Slowly recognized, they finally pass into a formula, to be acted upon, to be applied, to be defended in the concerns of life, as principles."³⁷

"Equality before the law"³⁸ was the formula he employed. He traced the equalitarian theory from the eighteenth century French philosophers through the French Revolution into the language of the French Revolutionary Constitution of 1791,³⁹ the Constitution of February 1793,⁴⁰ the Constitution of June 1793⁴¹ and the Charter of Louis Phillipe.⁴² Equality before the law, i.e., equality of rights, was the real meaning of the Massachusetts constitutional provision. Before it "all … distinctions disappear":

"He may be poor, weak, humble, or black—he may be Caucasian, Jewish, Indian or Ethiopian race—he may be of French, German, English or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. He is not poor, weak, humble, or black; nor is he French, German, English or Irish; he is a MAN, the equal of all his fellowmen."⁴³

Hence, he urged, separate schools are illegal.

The Massachusetts court rejected Sumner's argument and refused to grant relief. Subsequent thereto, in 1853, the Legislature of Massachusetts, after careful consideration of the problem involving hearings and reports, amended the Wilson statute by providing, among other things, that in determining the qualifications of school children in public schools in Massachusetts "no distinction was to be made on account of the race, color or religious opinions of the appellant or scholar."⁴⁴

The Committee on Education of the House of Representatives in its report recommending adoption of this bill carefully considered the arguments for and against the measure and concluded:

"Your committee believe, in the words of another, that 'The only security we can have for a healthy and efficient system of public instruction rests in the deep interest and vigilant care with which the more intelligent watch over the welfare of the schools. This only will secure competent teachers, indefatigable exertion, and a high standard of excellence; and where the colored children are mingled up with the mass of their more favored fellows, they will partake of the advantages of this watchful oversight. Shut out and separated, they are sure to be neglected and to experience all the evils of an isolated and despised class. One of the great merits of our system of public instruction is the fusion of all classes which it produces. From a childhood which shares the same bench and sports there can hardly arise a manhood of aristocratic prejudice or separate castes and classes. Our common-school system suits our institutions, promotes the feeling of brotherhood, and the habit of republican equality. To debar the colored race from these advantages, even if we still secured to them equal educational results, is a sore injustice and wrong, and is taking the surest means of perpetuating a prejudice that should be depreciated and discountenanced by all intelligent and Christian men."⁴⁵

Thus, the argument and theories advanced by Sumner, although rejected by the Supreme Court of Massachusetts, finally became incorporated into the law of the State of Massachusetts. More important, however, is the fact that the argument of Sumner was widely distributed throughout the country during the period immediately preceding the consideration of the Fourteenth Amendment.⁴⁶ As a consequence it became a fundamental article of faith among the Radical Republicans that from a constitutional standpoint racial segregation was incompatible with constitutional guarantees of equal protection.⁴⁷

The analysis of the available materials covering the period from 1830 to 1860, while important to this point, is too voluminous to be included in the argument at this point. We have, therefore, placed this analysis in a supplement at the end of the brief. The analysis of these materials compels the following historical conclusions:

1. To the Abolitionists, equality was an absolute—not a relative—concept which comprehended that no legal recognition be given to racial distinctions of any kind. The notion that any state could require racial segregation was totally incompatible with this doctrine.

2. The phrases—"privileges and immunities," "equal protection," and "due process"—that were to appear in the Amendment had come to have a specific significance to opponents of slavery in the United States. Proponents of slavery knew and understood what that significance was, even as they disagreed with these theories. Members of the Congress that proposed the Amendment, shared this knowledge.

3. These radical Abolitionists, who had been in the minority prior to the Civil War, gained control of the Republican party in Congress during the course of the war and thus emerged in a dominant position in the Congress which was to write the Fourteenth Amendment. Ten of the members of the Joint Committee of Fifteen were men who had definite antislavery backgrounds and two others had likewise opposed slavery.

4. When the Joint Committee of Fifteen translated into constitutional provisions the equalitarian concepts held and widely bruited about in the struggle against slavery, it used the traditional phrases that had all become freighted with equalitarian meaning in its widest sense: "equal protection," "privileges and immunities" and "due process."

In these respects history buttresses and gives particular content to the recent admonition of this Court that "[w]hatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race and color." Shelley v. Kraemer, 334 U.S. 1, 23.

Despite the high principles and dedication of the leaders of the Abolitionist movement, their program ran into repeated roadblocks from both individual groups and state machinery. The movement was not only blocked in so far as the abolition of slavery itself was concerned, but was met by an ever increasing tendency on the part of all the southern states and some northern states to gradually cut down on the rights of free Negroes and to bring their status nearer and nearer to that of slaves. This countermovement culminated in the decision of the Supreme Court in the Dred Scott case (Scott v. Sandford, 19 How. 393) that no person of the "African race, whether free or not" could enjoy, under the Constitution of the United States, any right or protection whatsoever. All Negroes were thereby left, by the principles of that case, to the absolute, unrestrained power of the several states.

B. The movement for complete equality reached its successful culmination in the Civil War and the Fourteenth Amendment

The onset of the Civil War marked the turning point of the Abolitionists' drive to achieve absolute equality for all Americans. The first great success came on January 1, 1863, when President Lincoln's Emancipation Proclamation freed all slaves in those areas in insurrection against the United States. Obviously this was far from a complete victory. The doctrines enunciated by Chief Justice Taney in the Dred Scott case were still unqualified and remained as a part of the "constitutional law" of the time.

In February, 1865, the Abolitionist-dominated 38th Congress adopted and submitted to the states what was to become the Thirteenth Amendment to the Constitution. However, the Radical Republicans in Congress were intensely aware that the abolition of slavery constituted only a partial attainment of their goal of complete political and legal equality for Negroes. They had already determined as early as the spring and summer of 1862 to strike at the objective of federal statutory and constitutional guarantees for Negro equality. As yet, however, their thinking had not succeeded in distilling clearly a series of specifically defined legal and political objectives which they proposed to write into federal law and Constitution.

It should be observed in passing that their reason for this obviously was not necessarily pure Abolitionist idealism. They were in part motivated by hard practical considerations of Republican Party ascendency, and the fear that a restored South, in which Negroes were not given complete legal and political equality, would fall into the hands of a pre-war conservative white political leadership which would threaten the national political control of the Radical Republicans themselves. Thus their idealistic, social philosophy and their hard practical considerations of party interest dovetailed very nicely.⁴⁸

It was to require the events of 1865–66, most notably the attempt to restore political rule in the South and the attempt to impose an inferior non-citizenship status upon the Negro in the restored southern states, to make clear to the Radical Republicans their new constitutional objectives and the means they would seek to obtain it.

C. The principle of absolute and complete equality began to be translated into federal law as early as 1862

In 1862 Congress addressed itself to an immediate problem over which it had authority. In debating the bill which was to abolish slavery in the District of Columbia, Representative Bingham said: "The great privilege and immunity of an American citizen to be respected everywhere in this land, and especially in this District, is that they shall not be deprived of life, liberty, or property without due process of law."⁴⁹ Representative Fessenden concluded: "If I do not mistake, it is quite apparent that when this bill shall be put on its final passage it will proclaim liberty to the slaves within this District. These men—for God created them men, though man has used them as goods and chattels—slaves—these men and women and children will, when the President of the United States signs this bill, be translated … [to a] condition in which they are invested with the rights of freemen, upon which none can trespass with impunity; since over the person of the free black as well as the free white man there is thrown the broad shield of the nation's majesty."⁵⁰ The bill was enacted into law.⁵¹

Simultaneously Congress discontinued the application of the Black Codes of Maryland and Virginia to the District of Columbia.⁵²

Between the time of the Emancipation Proclamation in 1863 and the formulation of the Fourteenth Amendment, Congress took several forward steps to secure complete equality for the class so recently freed. These steps came in the form of particular solutions to particular problems. To this Congress (38th), the most immediate problem was one which fell under their glance daily, the problem of transportation in the District of Columbia. Congressional treatment of this problem is of significance because it reveals the early determination of the Radical Republicans to prohibit racial segregation.

In 1863, Congress amended the charter of the Alexandria and Washington Railroad to eliminate the practice of putting white and Negro passengers in separate parts of the street cars.⁵³ When, in 1864, the Washington and Georgetown street car company attempted to put colored passengers in cars separate from those of the white passengers, Senator Sumner denounced the practice in the Senate and set forth on his crusade to prohibit all racial distinctions by first eliminating street car segregation in the District.⁵⁴ In 1865, he carried to passage a law applicable to all District carriers that "no person shall be excluded from any car on account of color."⁵⁵

The debate on the street car bill covered the entire issue of segregation in transportation. Those who supported prohibition of segregation did so on the ground that any such separation was a denial of equality itself. Senator Wilson denounced the "Jim Crow car," declaring it to be "in defiance of decency."⁵⁶ Senator Sumner persuaded his brethren to accept the Massachusetts view, saying that in Massachusetts, "the rights of every colored person are placed on an equality with those of white persons. They have the same right with white persons to ride in every public conveyance in the Commonwealth."⁵⁷ Thus, when Congress in 1866 framed the Fourteenth Amendment, it did so against a background of Congressional determination that segregation in transportation was unequal, unjust, and was "in defiance of decency."

D. From the beginning the thirty-ninth Congress was determined to eliminate race distinctions from American law

The 39th Congress which was to propose the Fourteenth Amendment convened in December 1865 with the realization that, although slavery had been abolished, the overall objective, the complete legal and political equality for all men had not been realized. This was dramatically emphasized by the infamous Black Codes being enacted throughout the southern states. These Black Codes had the single purpose of providing additional legislative sanction to maintain the inferior status for all Negroes which had been judicially decreed in the opinion in the case of Scott v. Sandford, 19 How. 393.