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