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.
IV
The Supreme Court of the United States then was headed by Fred M. Vinson of Kentucky, as Chief Justice. Others who heard the ten hours of argument that December were Hugo L. Black of Alabama, Felix Frankfurter of Massachusetts, William O. Douglas of Connecticut, Robert H. Jackson of New York, Harold H. Burton of Ohio, Tom C. Clark of Texas, Sherman Minton of Indiana, and Stanley Reed of Kentucky.