III
The four cases that were to coalesce as Brown v. Board of Education had their beginnings in four widely separated proceedings. In the first of the suits, Harry Briggs, Jr., and forty-five other Negro children of Clarendon County, S. C., brought an action on December 22, 1950, against R. W. Elliott and other members of the county’s School District 22. The following March, in Kansas, Oliver Brown and other colored children filed suit against Topeka’s board of education. In May 1951, Dorothy E. Davis and other Negro plaintiffs in Prince Edward County, Va., launched their proceeding against county officials. Nine months later, in the early spring of 1952, Ethel Louise Belton and others sued for nondiscriminatory admission to the public schools of Hockessin and Wilmington, Del.
Each of the suits was carefully coordinated with the others by the National Association for the Advancement of Colored People, and each had the same object—overthrow of the “separate but equal” rule that had governed the operation of racially separate schools since Reconstruction days. Counsel’s plan was to show, first, that school facilities for white and Negro children were not equal as a matter of fact, but this was not so important; beyond this—and it was by far the more significant aim—the object was to prove, as Thurgood Marshall said in South Carolina, that “the segregation of pupils in and of itself is a form of inequality,” and hence a violation of the Fourteenth Amendment’s requirement of equal protection of the law.
The Clarendon County case, which came on for trial before a three-judge Federal court in Charleston May 28-29, 1951, provided the pattern. The pleadings were drafted by Marshall himself and by Robert L. Carter of New York, the two top lawyers for the National Association for the Advancement of Colored People. (In 1961, Marshall became a Federal circuit judge.)
The facts were not in great dispute. At that time, there were in Clarendon County as a whole 6500 Negro children and 2375 white children. District 22 had 684 Negro elementary pupils and 150 Negro high school pupils, plus 102 white elementary pupils and 34 white high school pupils. The Negro pupils of District 22 went to three schoolhouses: Scott Branch (a combined elementary and high school), Liberty Hill, and Rambay. All the white pupils went to the Summerton elementary and high school. It was shown that the facilities for white children, though old (the Summerton high school was built in 1907), were in many respects far superior to the facilities for the Negro children. The two-room Rambay School and the four-room Liberty Hill School had no running water, and Rambay had no electric power. The Negro schools had few of the educational aids provided at Summerton; their playgrounds were inferior; toilet facilities at the two smaller buildings were outside privies. County officials pointed out that neither water nor sewage lines existed in the area of the two schools; in the remote rural section served by Rambay, no electric power was available to anyone; the library for colored pupils at Scott Branch, they said, was superior to the library for white pupils at Summerton; and they denied any discrimination in transportation, janitorial services, and other amenities. As the case went to trial, however, counsel for Clarendon County confessed a general inequality in physical facilities, described a State-wide plan instituted by Governor Byrnes for school improvements, and pledged a prompt effort to achieve equality.
By far the most significant evidence in the Clarendon County case came from a group of witnesses summoned by the plaintiffs to testify on the psychological effects of segregation itself. Kenneth Clark, assistant professor of psychology at the New York City College, was a key figure in this phase of the NAACP’s assault. In the Teachers’ College Record for October 1960, he revealingly describes the fashion in which he was approached by Carter in February 1951, on behalf of the NAACP’s Legal Defense Fund, to prepare exhibits and test findings that would support the plaintiffs’ side in the School Segregation Cases. Carter wanted material that would show how “segregation inflicts psychological damage on its victims,” and Clark collaborated with the lawyers in preparing psychological data “to be used in whatever ways they believed most effective in the presentation of their case.” As part of the plan, Clark himself went to Clarendon County, and administered the “doll test” to twenty-six Negro children; in this test, the subjects are shown two dolls identical except for skin coloring—one doll is white, the other brown. They then are asked which doll they like best, which doll is “nice,” which doll is “bad,” and which doll “is like you?” From the answers to these questions, Clark testified in the Clarendon case, “we get some picture of the child’s concept of his own color, and we also get an indication of the child’s anxieties and confusions about his color and his feelings.” Not surprisingly, the twenty-six pupils Clark tested in Clarendon County were found to have been “definitely harmed in the development of their personalities.”
Other witnesses for the plaintiffs included Harold McNalley, associate professor of education at Columbia Teachers College; Ellis O. Knox, professor of education at Howard University; James L. Hupp, professor of education and psychology at Wesleyan College of West Virginia; David Krech, professor of social psychology at Harvard; and Mrs. Helen Trager, a lecturer in psychology at Vassar. Their testimony, admitted over defense objections that it was irrelevant and immaterial, was intended to support the plaintiffs’ primary contention that segregation, in and of itself, caused emotional damage to the Negro child, and that segregated schools could never be made “equal” as a matter of law.
On June 23, 1951, the Fourth Circuit’s Chief Judge John J. Parker, joined by District Judge George Bell Timmerman, handed down an opinion in the Clarendon County case. The third member of the court, District Judge J. Waties Waring, strongly dissented to the Parker-Timmerman decision. The majority decree directed county officials to proceed at once with genuine equalization of public school facilities, but the court refused to upset the long-standing doctrine of “separate but equal.” The late Judge Parker was one of the nation’s most widely admired jurists, a North Carolinian who had then had more than twenty-five years’ experience on the bench. His opinion (98 F. Supp. 529), though it subsequently was to be reversed, merits respectful consideration in any study of the South’s position.
On the key question developed by the plaintiffs—that segregation in itself is a denial of equal protection—Parker took a calmly judicial approach: This is a “matter of legislative policy for the several States,” he said, “with which the Federal courts are powerless to interfere.” He continued:
One of the great virtues of our constitutional system is that, while the Federal government protects the fundamental rights of the individual, it leaves to the several States the solution of local problems. In a country with a great expanse of territory, with peoples of widely differing customs and ideas, local self government in local matters is essential to the peace and happiness of the people in the several communities as well as to the strength and unity of the country as a whole. It is universally held, therefore, that each State shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the Federal Constitution, how it shall exercise the police power, i.e., the power to legislate with respect to the safety, morals, health and general welfare. And in no field is this right of the several States more clearly recognized than in that of public education.
Judge Parker quoted from an opinion by the District of Columbia’s Judge E. B. Prettyman, an outstanding jurist who had considered the question a year earlier in Carr v. Corning (182 F.2d 14). There Judge Prettyman raised the question of whether the Fourteenth Amendment had lifted the entire problem of race relations out of the hands of all legislatures and settled it. “We do not think it did,” he said. “Such problems lie naturally in the field of legislation, a method susceptible of experimentation, of development, of adjustment to the current necessities in a variety of community circumstance. We do not believe that the makers of the first ten amendments in 1789 or of the Fourteenth Amendment in 1866 meant to foreclose legislative treatment of the problem in this country. This is not to decry efforts to reach that state of common existence which is the obvious highest good in our concept of civilization. It is merely to say that the social and economic inter-relationship of two races living together is a legislative problem, as yet not solved, and is not a problem solved fully, finally or unequivocally by a fiat enacted many years ago. We must remember that on this particular point we are interpreting a Constitution and not enacting a statute.”
Judge Parker went on in his own opinion to review decisions of the Supreme Court sustaining the separate-but-equal doctrine, and to distinguish between education at the graduate-school level and education at the elementary-school level. In dealing with the grammar schools, under systems of compulsory attendance, local lawmakers have problems of educational policy that must take into account not only questions of instruction “but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence.” If public education is to have the support of the people through their legislatures, Judge Parker said, “it must not go contrary to what they deem for the best interests of their children.” The plaintiffs’ expert witnesses had testified that mixed schools would benefit children of both races by exposing them to democratic opportunities in community living. Defense witnesses, on the other hand, had testified that mixed schools would result in friction and tension. Said the court:
The questions thus presented are not questions of constitutional right but of legislative policy, which must be formulated, not in vacuo or with doctrinaire disregard of existing conditions, but in realistic approach to the situations to which it is to be applied.... The Federal courts would be going far outside their constitutional function were they to attempt to prescribe educational policies for the States in such matters, however desirable such policies might be in the opinion of some sociologists or educators. For the Federal courts to do so would result, not only in interference with local affairs by an agency of the Federal government, but also in the substitution of the judicial for the legislative process in what is essentially a legislative matter.
The public schools are facilities provided and paid for by the States. The State’s regulation of the facilities which it furnishes is not to be interfered with unless constitutional rights are clearly infringed. There is nothing in the Constitution that requires that a State grant to all members of the public a common right to use every facility that it affords.... The equal protection of the laws does not mean that the child must be treated as the property of the State and the wishes of his family as to his upbringing be disregarded.
In oral argument of the case, Thurgood Marshall had urged the trial court to create judicial history by abandoning, on its own motion, the precedents of many years in support of “separate but equal.” Judges Parker and Timmerman were not willing to do so. These unreversed decisions, they said, were squarely in point and conclusive. If this long line of cases were to be overturned or held outmoded, the Supreme Court itself would have to take that step. And Parker concluded:
To this we may add that, when seventeen States and the Congress of the United States have for more than three-quarters of a century required segregation of the races in the public schools, and when this has received the approval of the leading appellate courts of the country including the unanimous approval of the Supreme Court of the United States at a time when that Court included Chief Justice Taft and Justices Stone, Holmes and Brandeis, it is a late day to say that such segregation is violative of fundamental constitutional rights. It is hardly reasonable to suppose that legislative bodies over so wide a territory, including the Congress of the United States, and great judges of high courts have knowingly defied the Constitution for so long a period or that they have acted in ignorance of the meaning of its provisions. The constitutional principle is the same now that it has been throughout this period; and if conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not for the courts. The members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics. [Emphasis supplied.]
In the course of time, to be sure, the Warren court was to do precisely what Judge Parker said judges ought never to do, but nearly three years were to elapse before that famous decree would descend upon the South. Meanwhile, the other three cases, in Kansas, Virginia, and Delaware, were still to be tried. They followed the Clarendon pattern rather closely. In Topeka, counsel for the Negro plaintiffs made little effort to show physical inequalities in the city’s white and Negro schools. The city was then operating eighteen white schools and four Negro schools, under a State law permitting, but not compelling, racial separation. The trial court found as a fact (98 F. Supp. 797) that the facilities were substantially equal: “It is obvious that absolute equality of physical facilities is impossible of attainment.” The broader question presented by the plaintiffs “poses a question not free from difficulty,” but Judge Walter A. Huxman and his colleagues in Kansas was no more disposed than Judge Parker and Judge Timmerman in South Carolina to upset long-established precedents. The three-judge court unanimously upheld segregation in the Topeka schools.
In Virginia, the Prince Edward County case was tried February 25-29, 1952, before a court composed of Circuit Judge Armistead Dobie and District Judges Sterling Hutcheson and Albert Bryan. Once again, as in South Carolina, the defense confessed the physical inequality of white and Negro school facilities, and accepted a court order requiring prompt and diligent efforts to make the facilities equal. But here, too, physical equality was not the principal issue. The question was whether segregation in itself violated the Fourteenth Amendment. On this point, the Negro plaintiffs produced a fresh array of sociologists, anthropologists, psychologists, and psychiatrists to testify to the harmful effects of segregation; the defense produced “equally distinguished and qualified educationists and leaders in other fields” who emphatically asserted that, given equivalent physical facilities, offerings, and instruction, the Negro would receive in a separate school the same educational opportunity he would obtain in a mixed school. Each of the expert witnesses, said Judge Bryan, “offered cogent and appealing grounds for his conclusion.”
But the three Federal jurists in Virginia took the same position that Parker and Timmerman had taken in Clarendon County—in brief, that the only duty of a Federal court in such a case is to determine whether a State’s policy is so arbitrary and capricious as to be wholly without support in reason. Here, the “unbroken usage in Virginia for more than eighty years” offered evidence of a policy reflecting the established mores of the people. So distinguished a witness as Virginia’s Colgate W. Darden, a former Governor and then president of the University of Virginia, had testified that elimination of separate schools would injure both races. Under the circumstances, the court was unable to say that the State’s policy of racially separate schools was without substance in fact or reason:
We have found no hurt or harm to either race. This ends our inquiry. It is not for us to adjudge the policy as right or wrong—that the Commonwealth of Virginia shall determine for itself.
Last of the four cases to be heard was in Delaware, where the State Chancellor on April 1, 1952, entered an order directing the admission of a number of Negro children to the public schools of New Castle County on a nondiscriminatory basis (87 A.2d 862). The evidence was not in dispute: The colored high school students were denied admission to Claymont High School and were required instead to attend Howard High School in neighboring Wilmington. Elementary pupils were barred from Hockessin School No. 29 and required instead to attend the all-Negro Hockessin School No. 107. The Chancellor found that inequalities did in fact exist, in teacher training, pupil-teacher ratio, extracurricular activities, transportation, physical plant, and the like. Though he was inclined to agree that segregation in itself “results in Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children,” the Chancellor was unwilling to decide the case on this new ground. On the merits of their case alone, under the separate-but-equal rule, the Negro plaintiffs were entitled to immediate relief. On August 28, 1952, the Supreme Court of Delaware affirmed (91 A. [2d] 127). And the Supreme Court of the United States, having granted certiorari in each of the cases, set them for joint argument December 9-11, 1952.