THE CASE FROM CLARENDON
When the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other and larger ends. From history and philosophy and custom, we pass, therefore, to the force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology.... The final cause of law is the welfare of society.—Justice Benjamin N. Cardozo.
Culmination of the effort of the Negroes of South Carolina to win legal recognition of their rights to first class citizenship came in 1954 in the Clarendon County school case. This was the key case in the NAACP’s nationwide campaign to break down racial segregation in public schools. Negro leaders purposely singled out Clarendon County because it presented racially segregated schools in the worst possible light. Located in the state’s black belt, the county in 1951 had approximately 23,000 Negroes and 8,000 whites. Enrolled in its public schools were 6,531 Negro students as compared to 2,375 whites. Yet school expenditures totaled $395,329 for whites as against $282,950 for Negroes.[49] In School District No. 22 (Summerton), the district directly involved in the suit, there were 298 white pupils and 2,259 Negro pupils.[50] In facilities such as libraries, lighting fixtures, desks, play grounds, classroom space, lavatories, lunchrooms, auditoriums and teacher ratio to pupil, the Negro schools were decidedly inferior to those provided for whites. For example, the NAACP pointed out in the hearing of the case before the federal court that one of the Negro schools with 600 pupils had only two toilets, both outdoors. Another school lacked drinking faucets and water had to be brought in a bucket from the home of a neighboring minister.[51]
Clarendon is a typical South Carolina low country rural county and most of its people, especially Negroes, are agricultural workers. In 1955 the Nation described the county as a place where the people
talk of Citizens’ Councils and the “economic squeeze,” where the Ku Klux Klan met with Bryant Bowles, head of the National Association for the Advancement of White People, as a featured speaker, where integration is freely referred to as a “Communist-Catholic-Jewish plot,” where a place of business displays the latest newspaper clippings showing crimes of Negro against white, where private citizens discuss the hated Ford Foundation along with the price of tobacco, where the NAACP has only a small chapter and where you hunt long and hard for a defender of the Negro.[52]
The Clarendon case, technically known as Harry Briggs, Jr., et al., appellants, versus R. W. Elliott, et al., appellees, had its origins in 1948 when a group of Negro citizens brought suit in federal court to require state and county officials to provide school buses for Negro pupils. Federal District Judge J. Waties Waring dismissed this suit on the ground that the state as a governmental unit did not supply school buses for any students. The following year Negro parents in Clarendon petitioned authorities to bring Negro school facilities up to the standards of the county’s white schools. The petition threatened legal action if equality were not provided. In May, 1950, citing failure of local officials to equalize school facilities, a suit was filed asking that school authorities be compelled to provide equality. In December, 1950, this suit was dropped and another, filed by forty Negro parents, attacked segregation per se as a violation of the Fourteenth Amendment and asked the abolition of all segregation in public schools based on race.[53] The suit was filed under NAACP auspices.
In May, 1951, the case was heard by a special three-judge court presided over by Federal Circuit Judge John J. Parker of North Carolina and District Judges George Bell Timmerman, Sr., of Columbia and J. Waties Waring of Charleston. The suit represented the first all-out legal attack in the deep South on the system of racial segregation on the public school level. It was clearly a test case; the ruling would provide a basis for future court decisions in similar cases. The appellants were represented by Thurgood Marshall, chief counsel for the NAACP; the appellees by attorneys Robert McC. Figg of Charleston and S. Emory Rogers of Summerton. Figg is an able Charleston corporation lawyer; Rogers, a determined defender of white supremacy at any price, was attorney for the Summerton school board.
In the arguments before the court, Marshall sought to prove first that the separate school facilities provided Negroes in District 22 were in fact physically unequal and second that segregation per se was discriminatory and therefore a violation of the Fourteenth Amendment. Inasmuch as school officials readily admitted that the facilities then offered Negroes in Clarendon were unequal, Marshall concentrated on sociological and psychological arguments to support his second contention. He argued that segregation invariably resulted in the development of “psychological roadblocks” which prevented Negro pupils from achieving “full absorption” of the educational process.[54]
To buttress this position, Marshall introduced what the late Walter White, then executive secretary of the NAACP, thought “the most impressive array of authorities ever assembled to testify as experts on the unreasonableness of segregation.” Their arguments, he said, were “irrefutable.”[55] The “experts” were half a dozen social scientists from such universities as Harvard, Columbia, Vassar and Howard. They held that segregation resulted in “discordant” education that caused “moral confusion” for both whites and Negroes. Amongst Negroes it resulted in “a lowering of self-esteem, a strengthening of resentment and hostility” and a personality development that emphasized “a desire to escape or withdraw from social participation.” Amongst white children segregation developed a feeling of guilt caused by their being taught simultaneously both the doctrine of brotherly love and the practice of unbrotherly racial segregation.[56] Segregation was said to be building into the Negro “the very characteristics” which were then used to justify prejudice.
The counter case presented by Clarendon school officials contained three basic points. First, they maintained that segregation per se was not violative of the Fourteenth Amendment as it had been recognized as legal by the courts, Congress and the governments of seventeen states. The only condition that could be legally demanded was that the segregated facilities be substantially equal. Attorney Figg readily admitted that school facilities then being offered Negroes in the county were unequal but asked that the court allow the state a “reasonable” time in which to equalize them. South Carolina, he pointed out, was in the midst of a statewide equalization program. The second argument held that school segregation statutes were “a valid exercise of legislative power,” a matter of state legislative policy rather than of constitutional right. No legal compulsion could oblige a state to accept “scientific opinion” that its school program “must be geared to personality development.” The third contention of appellees was that to disturb drastically the racial status quo in the deep South would produce “dangerous tensions and unrest.” Racially segregated school facilities, Figg insisted, were the “normal” result of a racial conflict heritage in the state of South Carolina.[57]
The court ruled two to one against the appellants. Judges Parker and Timmerman held that segregation per se was not a violation of the Fourteenth Amendment. They said, however, that “the educational facilities and opportunities” provided both races “must be equal.” Equality had to be provided “promptly” and “in good faith.” Consequently school officials were directed to report to the court after six months as to what actions were being taken to provide equality. In rejecting Marshall’s line of argumentation the court asserted that judges had “no more right to read their ideas of sociology into the Constitution than their ideas of economics.”
Judge Waring dissented vigorously. The majority opinion, he wrote, was “unreasonable, unscientific, and based on unadulterated prejudice.” He condemned the “sadistic insistence of the ‘white supremacists’ in declaring that their will must be imposed irrespective of rights of other citizens.”[58]
Governor James F. Byrnes hailed the majority ruling upholding school segregation as “unanswerable.” The court’s “well-reasoned opinion,” he maintained, completely vindicated the separate-but-equal doctrine.[59]
II
Only slowly had white South Carolina awakened to the threat to legal school segregation contained in the repeated petitions and suits of Clarendon Negroes. By the time the state legislature convened in January, 1951, the menace was fully realized. A definite fear had developed that the courts might rule in favor of the Negro petitioners. Basis for this fear was a long line of recent United States Supreme Court rulings outlawing segregation in state university graduate and professional schools even when facilities provided Negroes were in fact substantially equal to those for whites. The legislators and other state officials clearly recognized that by no criteria were white and Negro schools even remotely equal, not only in Clarendon but over the entire state. White South Carolina’s only hope, they reasoned, lay in an immediate and far reaching program to provide equal facilities for each race. At the same time certain precautionary measures had to be taken against the possibility that the courts might hold segregation per se illegal.
Leadership in this program fell to Governor James F. Byrnes, who, after a long career in the federal government, including a short period of service on the Supreme Court, had broken with President Truman and the national Democratic Party and had returned to South Carolina to vent his frustration against the national government and the Democratic Party. Elected governor in 1950, he was inaugurated in January, 1951. Almost immediately Byrnes began a long range program which was to provide a basis for the state’s defense of the racial status quo and the doctrine of separate-but-equal schools. The program subsequently was enacted by the 1951 state legislature. The position of Byrnes, as well as that of many of the state’s other leaders, was summarized in a series of the governor’s speeches in early 1951. South Carolina, he announced, would not then “nor for some years to come mix white and colored children” in public schools. To prevent this situation the state would, if necessary, “reluctantly” abandon its public school system. “A lawful way” would be found to educate all children “and at the same time provide separate schools for the races.” While conceding the inferiority of Negro schools, Byrnes insisted that the educational crisis facing the state was caused by “the politicians in Washington and the Negro agitators in South Carolina” seeking to alter the “Southern way of life.” But they would find that “what a Carpetbag government could not do in the Reconstruction period” was likewise impossible in 1951. The governor would protect the “innocent Colored children,” the victims of those elements which sought to end segregation. With a prescience characteristic of white spokesmen for racial separation, he insisted that “the overwhelming majority of colored people in this state” did not want integrated schools. Byrnes denied that new school policies were based on the expediency of necessity rather than on high principle. He righteously observed shortly after the district court ruling that “had there been no suit ... I would have urged this school program to help the white and colored children” of the state.[60]
The most important undertaking in the Byrnes educational approach was the beginning of a tremendous school construction program. The cost was estimated at $75,000,000 though the amount actually spent on the project by 1957 was more than double the original figure. To finance new school construction, Byrnes secured legislative passage of a three percent sales tax.[61] This program, in which more than half the funds were spent for Negro schools, had the result of giving the Negroes better physical school facilities in some localities than those of the whites.
In addition to these constructive measures, the state legislature, upon Byrnes’s recommendation, enacted several “preparedness measures” for use in the event the federal courts outlawed segregation. Local school officials were given authority to sell or lease school property. Churches or other private groups thus would be enabled to maintain schools under some sort of private school plan. Another strategem provided that pupils could be transferred from one school to another only with the approval of the superintendents of both schools affected.[62]
A measure that caused understandable hesitation on the part of many public officials and civic groups was the repeal of the constitutional provision requiring a state supported public school system. The NAACP and other Negro groups vigorously opposed repeal, but in February, 1952, the legislature approved a referendum on the proposal. In the referendum, held the following November, 68 percent of those voting favored repeal. Opponents of the measure considered the 32 percent against repeal something of a moral victory for their side.[63]
To coordinate state policy on the segregation issue, the legislature created a special 15-member committee. This group came to be known as the Gressette Committee, after its chairman, State Senator L. Marion Gressette, a fifty-three year old Phi Beta Kappa, farmer-lawyer from the low country Calhoun County. The committee had a double function. First, it was directed to study the conditions that would confront the state should the federal courts direct an end to segregation in public schools. Second, it was to recommend to the legislature a course of action which would “alleviate the serious condition which would result” from such an eventuality.[64] This committee, after assisting Byrnes in developing his program in 1951, was inactive from that time until the Supreme Court ruling of May 17, 1954.
III
Following the circuit court’s ruling the Clarendon case was immediately appealed to the United States Supreme Court. By the time the highest tribunal considered the case, the six months period allowed by the circuit court for school officials to furnish bona fide equality for Negroes had elapsed. Consequently, on January 26, 1952, the case was remanded to the circuit court which was directed to take whatever action it deemed appropriate in view of its findings. In the meanwhile Judge Waring had retired and had been replaced on the court by Judge Armisted M. Dobie of Virginia. At the rehearing counsel for the school officials reported on the steps taken by the county and on other plans contemplated under the statewide school equalization program. These plans, when completed, would provide equality in all areas for white and Negro schools, claimed school authorities. Though equality admittedly as yet had not been attained, such would be forthcoming within a “reasonable” time. Accepting these arguments at face value, the circuit court ruled unanimously that “the defendants have complied with the decree of the court to equalize facilities as soon as humanly possible and no good could be accomplished for anyone” by ordering an end to segregation.[65] The NAACP again immediately appealed to the Supreme Court.
Arguments before the Supreme Court took place in December, 1952, in conjunction with four similar cases. Clarendon County was represented by John W. Davis, noted constitutional lawyer and Democratic presidential candidate in 1924. Davis, a twentieth century “Northern man with Southern principles,” based his case mainly on grounds of constitutionalism and states rights. “What is the great national policy underlying this whole question?” he asked. “Is it not that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent?”[66] Again the appellees stressed three main points. They maintained that the state was proceeding to remove “all inequalities between its white and colored schools,” as had been found by the lower court. Further, school authorities argued that the legality of school segregation had been exercised and recognized so continuously that the question was “no longer open for debate.” As for the testimony of “sundry academic persons” offered in opposition to segregation, such “opinions” presented questions of legislative policy only and formed no sufficient basis for any conclusions on the subject, least of all for a judicial finding.[67]
Thurgood Marshall, chief counsel for appellants, presented the same arguments he had used in the lower courts.
Unable to arrive at a decision on the basis of arguments advanced at the first hearing, the Supreme Court in June, 1953, asked for further pleadings on five questions. These involved essentially two points: (1) In the light of the history of the Fourteenth Amendment, was school segregation per se violative of that amendment? (2) Assuming that segregation was unconstitutional, would it necessarily follow that schools should be integrated “forthwith” or could the Court in the exercise of its equity powers remit the cases to lower courts and permit a “gradual adjustment” to integration?
Answers to these questions were prepared under the supervision of T. C. Callison, South Carolina’s Attorney General. The state maintained that the “overwhelming preponderance of the evidence” demonstrated that the Fourteenth Amendment could not be construed as forbidding racial segregation. In reply to the second query, the state held that on the assumption stated, the Court could permit gradual integration to be carried out within broad policy limitations by the lower federal courts. However, in this connection, the state argued that even assuming that the courts could declare segregated schools unconstitutional, it was not within the judicial power to determine what, if any, non-segregated system should be substituted in their place.[68]
IV
Chief Justice Earl Warren delivered the Court’s unanimous opinion, a milestone in the American Negro’s struggle for human dignity and freedom.[69] After reviewing the background of the various cases under consideration, the Court declared that the history of the Fourteenth Amendment, as it applied to school segregation, was “inconclusive.” Furthermore, said the Chief Justice, the school segregation issue had never been definitely settled by the Supreme Court. Recent decisions concerning inequality on graduate and professional levels of schooling had not faced the basic issue—the legal status of segregation per se. Consequently the Court would attempt conclusively to settle the problem.
In premising its decision, the Court turned not to “tangible factors” but to the overall “effect of segregation on education.” On this basis it asked: “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” The reply was direct: “We believe that it does.” Accepting the testimony presented in the lower court by the social scientists, the Court found that segregation of Negro children “from others of similar age and qualifications solely because of their race” generated feelings of inferiority concerning their status in the community that might affect “their hearts and minds in a way unlikely ever to be undone.” In the light of such a condition the Court concluded that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
The cases were not immediately disposed of since no implementing decree was included in this ruling. Recognizing the revolutionary nature of the transition being ordered, the Court, departing from established legal tradition, restored the cases to the docket and asked all affected states, the NAACP and the United States Attorney General to appear as friends of the Court and present further argument on how best to implement the decision. The state of South Carolina refused to come before the Court in this capacity. Attorney General Callison thought that such an appearance might indicate that the state was bringing itself “within the jurisdiction of the Court in this particular case.”[70] The state, as such, would do nothing that might make the Court’s decision specifically applicable to all school districts. Clarendon officials, however, did file a brief with the Court. They urged that the case be remanded to the lower federal court to permit school authorities “the opportunity of presenting their problems fully to that tribunal and of appealing to its equitable discretion in connection with their further handling of its affairs.”[71] Attorney Figg asked the Court to give the Clarendon authorities time to allow for “community acceptance.” But privately the less suave Attorney Rogers maintained that there was going to be no integration in South Carolina.
The Supreme Court’s implementing decree was not issued until May 31, 1955, a little over a year after its momentous decision.[72] It recognized the existence of “varied local school problems.” Consequently federal district courts were given the responsibility within their local areas for supervising the compliance with the Court’s original decision. While giving attention to local conditions, the district courts were to require school officials to make “a prompt and reasonable start toward compliance” with the original ruling. Delays in beginning integration were justifiable only when “necessary in the public interest” and “consistent with good faith compliance.” In proceeding “with all deliberate speed,” school officials were to be allowed consideration for such factors as “physical condition of the school plant, the school transportation system, personnel, revision of school districts ... and a revision of local laws and regulations” requiring segregation. This decision was applicable in the strict sense only to those school districts immediately involved in the litigation. No allowance was made for applying its provisions to other school districts. Segregation therefore would be erased only when action voluntarily was taken by school authorities or when directed by federal courts following petition by aggrieved groups upon failure of local officials to follow the spirit of the decision.
On July 15, 1955, the Federal Circuit Court, composed of Judges Parker, Timmerman and Dobie, met in Columbia and disposed of the Clarendon case in conformity with the Supreme Court ruling. In an unanimous decision the three judges restrained Summerton school officials “from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such schools on a non-discriminatory basis with all deliberate speed.”[73]
There the case rested in the spring of 1958. The school officials have not yet “made the necessary arrangements” to end segregation, and Negro parents, fearing among other things that the public schools will be closed if precipitate action is taken, have not pushed the matter further.