height. Indeed, in Birney’s Philanthropist, 1836–37, we find various anti-slavery petitions and resolutions from the Cadiz and Mt. Pleasant societies. 74 These are couched in the very phraseology for which Bingham in 1856– 66 manifested his decisive preference. Four of Bingham’s speech es are of particular significance: I. In his maiden speech in the House, March 6, 1856, attacking laws recently passed by the Kansas pro-slavery legislature which declared it a felony even to agitate against slavery, Bingham argued: “These infamous statutes [contravene] the Constitution of the United States. [A]ny territorial enactment which makes it a felony for a citizen of the United States, within the territory of the United States ‘to know, to argue and to utter freely’, according to conscience is absolutely void. [A] felony to utter there, in the hearing of a slave, upon American soil, beneath the American flag the words of the Declara- tion ‘All men are born free and equal, and endowed by their Creator with the inalien- able rights of life and liberty;’ [A] felony to utter those other words. ‘We, the people of the United States, in order to establish justice,’ the attribute of God, and ‘to secure liberty,’ the imperishable right of man, do ‘ordain this Constitution’. It is too late to make it a felony to utter the self- evident truth that life and liberty belong of right to every man. This pretended legislation violates the Constitution in this—that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that ‘no person shall be deprived of life, liberty, or property without due process of law.” 75 II. On January 13, 1857, Bingham spoke in support of Congress’ power over slavery in the territory and attacked President Buchanan’s recent defense of the Kansas-Nebraska Act of 1854 repealing the Missouri Compromise. After a long analysis of the provisions of the Federal Bill of Rights, of the Northwest Ordinance, the enabling acts and constitutions of the states carved from the Ohio Territory—emphasizing especially the Federal due process clause and the “all men are born equally free and independent” clauses of the state constitution, he said: “The Constitution is based upon EQUALITY of the human race. A State formed under the Constitution and pursuant to its spirit, must rest upon this great principle of EQUALITY. Its primal object must be to protect each human being within its jurisdiction in the free and full enjoyment of his natural rights “It must be apparent that the absolute equality of all, and the equal protection of each, are principles of our Constitution, which ought to be observed and enforced in the organization and admission of new States. The Constitution provides that no person shall be deprived of life, liberty, or property, without due process of law. It makes no distinction either on account of complexion or birth—it secures these rights to all persons within its exclusive jurisdic- tion. This is equality. It protects not only life and liberty, but also property, the product of labor. It contemplates that no man shall be wrongfully deprived of the fruit of his toil any more than of his life.” 76 Reporter, 1851; Judge, 1857–64; elected as a Republican, served 1865–71, 1873–77. 11 DICT. AM. BIOG. 52 (1933). 67 1824–1896; elected as a Republican from Scioto County, 1859–69. See 1 WELD-GRIMKE LETTERS, op. cit. supra note 10, at 333. 1 DICT. AM. BIOG. 389 (1928). 68 1811–1872, elected as a Republican from Columbus, 1855–57. See WELD-GRIMKE LETTERS, op. cit. supra note 10, at 228. 69 For eight terms (1855–63, 1865–73) Bingham represented the 21st Ohio District, composed of Harrison, Jefferson, Carroll and Columbiana Counties, including the Quaker settlements along Short Creek and the Ohio. See 3 BRENNAN, BIOGRAPHICAL ENCYCLOPEDIA OF OHIO 691 (1884). 70 18 DICT. AM. BIOG. 208 (1936). 71 20 DICT. AM. BIOG. 322 (1936). 72 Fessenden was the son of General Samuel Fessenden, the leading Abolitionist of Maine, who was one of the national vice-presidents of the American Anti-Slavery Society, 6 DICT. AM. BIOG. 348 (1931); on Morrill, see 13 DICT. AM. BIOG. 198 (1934); on Boutwell, see 2 DICT. AM. BIOG. 489 (1929). 73 See Graham, Early Antislavery Backgrounds, op. cit. supra note 1, at 624, n. 150. 74 For an example see Philanthropist, Mar. 10, 1837, p. 3, col. 4. 75 CONG. GLOBE, 34th Cong., 1st Sess. app. 124 (1856). Three other antislavery Republicans representing constituencies converted in the Weld-Birney crusade also used all the old rhetoric and theory including due process: Rep. Granger (N. Y.) id. at 295–296; Reps. Edward Wade (id. at 1076–1081) and Philemon Bliss (id. at 553–557), both Ohioans and among Weld’s early converts. See also the speech of Rep. Schuyler Colfax (Ind.), id. at 644. 76 CONG. GLOBE, 34th Cong., 3rd Sess. app. 135–140 (1857). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 127 U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE APPELLANTS AND RESPONDENTS ON REARGUMENT III. On January 25, 1858, attacking “The Lecompton Conspiracy”—the proposed pro- slave constitution of Kansas declaring that only “All freemen, when they form a compact, are equal in rights,”—and absolutely barring free Negroes from the state, Bingham declared: “The [ Federal] Constitution declares upon its face that no person, whether white or black, shall be deprived of life, liberty, or property, but by due process of law; and that it was ordained by the people to establish justice! [By sanctioning these provisions] we are asked to say, that the self-evident truth of the Declaration, ‘that ALL MEN ARE CREATED EQUAL ’ is a self-evident lie. We are to say to certain human beings in the Territory of Kansas, though you were born in this Territory, and born of free parents, though you are human beings, and no chattel, yet you are not free to live here ; you must be disseized of your freehold liberties and privileges, without the judgment of your peers and without the protection of law. Though born here, you shall not, under any circum- stances, be permitted to live here.” 77 IV. On February 11, 1859, Bingham attacked the admission of Oregon because its constitution forbade immigration of free Negroes and con- tained other discriminations against them: “[T]his constitution is repugnant to the Federal Constitution, and violative of the rights of citizens of the United States “Who are citizens of the United States? They are those, and those only, who owe allegiance to the Government of the United States; not the base allegiance imposed upon the Saxon by the Conqueror ; but the allegiance which requires the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States; all aliens by act of naturalization, under the laws of the United States.” “The people of the several States”, who according to the Constitution are to choose the representatives in Congress, and to whom political powers were reserved by the Tenth Amendment, were to Bingham “the same community, or body politic, called by the Preamble ‘the people of the United States’”. Moreover, certain “distinctive political rights”—for example the right to choose representatives and officers of the United States, to hold such offices, etc.—were conferred only on “citizens of the United States.” “ I invite attention to the significant fact that natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this Constitution guaran- teed by the broad and comprehensive word ‘person,’ as contradistinguished from the limited term citizen—as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that ‘no person shall be deprived of life, liberty, or property, but by due p rocess o f law, nor shall pri vate property be taken without just compensation.’ And this guarantee applies to all citizens within the United States.” Against infringement of “these wise and beneficent guarantees of political rights to the citizens of the United States as such, and of natural rights to all persons, whether citizens or strangers,” stood the supremacy clause. “There, sir, is the limitation upon State sovereignty—simple, clear, and strong. No State may rightfully, by Constitution or statute law, impair any of these guarantied rights, either political or natural. They may not rightfully or lawfully declare that the strong citizens may deprive the weak citizens of their rights, natural or political. “ This provision [excluding free Negroes and mulattoes] seems to me injustice and oppression incarnate. This provision, sir, excludes from the State of Oregon eight hundred thousand of the native-born citizens of the other States, who are, therefore, citizens of the United States. I grant you that a State may restrict the exercise of the elective franchise to certain classes of citizens of the United States, to the exclusion of others; but I deny that any State may exclude a law abiding citizen of the United States from coming within its territory, or abiding therein, or acquiring and enjoying property therein, or from the enjoyment therein of the ‘ privileges and immunities’ of a citizen of the United States. What says the Constitution: “‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Art. 4, Section 2.’ “Here is no qualification. The citi- zens of each State, all the citizens of each State, being citizens of the United States, shall be entitled to ‘all privileges and immunities of citizens of the several States.’ Not to the rights and immunities of the several States; not to those constitutional rights and immunities which result exclusively from 77 CONG. GLOBE, 35th Cong., 1st Sess. 402 (1858). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 128 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE APPELLANTS AND RESPONDENTS ON REARGUMENT State authority or State legislation; but to ‘all privileges and immunities’ of citizens of the United States in the several States. There is an ellipsis in the language employed in the Constitution, but its meaning is self-evident that it is ‘the privileges and immunities of citizens of the United States ’ that it guaranties. “ [S]ir, I maintain that the persons thus excluded from the State by this section of the Oregon Constitution, are citizens by birth of the several States, and therefore are citizens of the United States, and as such are entitled to all the privileges and immunities of citizens of the United States, amongst which are the rights of life and liberty and property, and their due protection in the enjoyment thereof by law; . “Who, sir, are citizens of the United States? First, all free persons born and domiciled within the United States—not all free white persons, but all free persons. You will search in vain, in the Constitution of the United States, for that word white; it is not there. You will look in vain for it in that first form of national Government—the Articles of Confederation; it is not there. The omission of this word—this phrase of caste—from our national charter, was not accidental, but intentional. “ This Government rests upon the absolute equality of natural rights amongst men. “ Who will be bold enough to deny that all persons are equally entitled to the enjoyment of the rights of life and liberty and property; and that no one should be deprived of life or liberty, but as punishment for crime; nor of his property, against his consent and without due compensation? “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which that Constitution rests—. The charm of that Constitution lies in the great democratic idea which it embodies, that all men, before the law, are equal in respect of those rights of person which God gives and no man or State may rightfully take away, except as a forfei- ture for crime. Before your Constitution, sir, as it is, as I trust it ever will be, all men are sacred, whether white or black. ” 78 Several points must here be emphasized. It will be noted that Bingham disavows the color line as a basis for citizenship of the United States; that he regards Milton’s rights of communication and conscience, including the right to know, to education, as one of the great fundamental natural “rights of person which God gives and no man or state may rightfully take away,” and which hence are “embodied” also within, and secured by, “the great demo- cratic idea that all men before the law are equal.” In short, the concept and guarantee of the equal prote ction of the laws is already “embodied” in the Federal Constitution as of 1859; this same concept, moreover, embraces “the equality of all to the right to kno w”; and above all, there is no color line in the Constitution, even of 1859. Conclusions From this consideration of the historical background against which the Fourteenth Amendment was written, submitted by Con- gress, and ratified by the requisite number of states, these important facts develop: 1. To the opponents of slavery, equality was an absolute, not a relative, concept which comprehended that no legal recognition be given to racial distinctions of any kind. Their theories were formulated with refe rence to the free Negro as well as to slavery—that great reservoir of prejudice and evil that fed the whole system of racial distinctions and caste. The notion that any state could impose such distinctions was totally incompatible with antislavery doctrine. 2. These propon ents of absolute equalitari- anism emerged victorious in the Civil War and controlled the Congress that wrote the Four- teenth Amendment. Ten of the fifteen members of the Joint Committee on Reconstruction were men who had antislavery backgrounds. 3. The phrases—“privileges and immunities,” “equal protection,” and “due process”—that were to appear in the Amendment had come to have specific significance to opponents of slavery. Proponents of slavery, even as they disagreed, knew and understood what that significance was. Members of the Congress that formulated and submitted the Amendment shared that knowl- edge and understanding. When they translated the antislavery concepts into constitutional provisions, they employed these by now tradi- tional phrases that had become freighted with equalitarian meaning in its widest sense. 78 CONG. GLOBE, 35th Cong., 2nd Sess. 981–985 (1859) (emphasis added throughout). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 129 U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE APPELLANTS AND RESPONDENTS ON REARGUMENT In the Supreme Court of the United States October Term, 1953 No. 1 OLIVER BROWN, ET AL., APPELLANTS VS. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS, ET AL., APPELLEES APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIEF FOR THE BOARD OF EDUCATION, TOPEKA, KANSAS, ON QUESTIONS PROPOUNDED BY T HE COURT PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Feder al Building, Topeka, Kansas. k INDEX I. Statement II. Question 4(a) should be answered in the negative: and question 4(b) in the affirmative III. Questions 5(a), (b) and (c) should be answered in the negative IV. Question 5(d) should also be answered in the negative k I. STATEMENT This brief is filed in response to the order of the Court, entered June 8, 1953, propounding five questions on which briefs were requested. Since the date of that order the Topeka Board of Education on September 3, 1953, duly adopted the following resolution: “Be it resolved that it is the policy of the Topeka Board of Education to terminate maintenance of segregation in the elemen- tary schools as rapidly as is practicable.”; and on September 8, 1953, it passed a motion, “ that segregation b e terminate in the South- west and Randolph Schools this year ”.Prior to the adoption of said resolution the Board of Education maintained twenty separate elementary schools for white children, each of which schools was attended by white children residing within a limited geographic area or boundaries near the school, and it also maintained four separate schools for negro children with large area or district boundaries. Negro students living some distance from school were furnished trans- portation to a nd from school if they requested it. Since September 8, 1953, negro children living within the area boundaries of the South- west School and the Randolph School are assigned to and are attending those schools along with and equally with white children. The Board is still maintaining the four separate negro schools and eighteen separate white schools. By reason of its having resolved to terminate segregation in the elementary schools of Topeka “as rapidly as is practicable,” the Topeka Board of Education no longer has an actual interest in the controversy over the constitutionality of segregation in such schools, and it therefore prefers to refrain from arguing and briefing Questions 1, 2, and 3 as propounded by the Court, which are directed to the constitutional questions involved. The Board of Education of Topeka is, however, actually and directly interested in Questions 4 and 5 as propounded by the Court. Briefly summarized, we contend; First, That termination of segregation in the elementary schools of Topeka will involve difficult and f ar reaching administrative deci- sions, affecting nearly all school children, nearly all teachers, and nearly all school buildings, so that to attempt to accomplish it in a hurried or summary manner will be both impossible and impractical. Second, The public interest, including the interest of negro children in Topeka, equity, and practical considerations require that termination of segregation in the elementary schools of Topeka shall be permitted to be accomplished in a gradual and orderly manner. II. QUESTION 4(a) SHOULD BE ANSWERED IN THE NEGATIVE: AND QUESTION 4(b) IN THE AFFIRMATIVE Both Questions 4(a) and 4(b) contemplate the possibility that this Court might issue a broad, general order requiring abolition of segregation in the elementary schools of Topeka, rather than a limited order relating to the rights of the few particular negro children who are parties to this suit. 130 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE BD. OF EDUC., TOPEKA, KS, ON QUESTIONS PROPOUNDED BY THE COURT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Such a general order would necessitate almost a complete readjustment of the elementary school system as now maintained in Topeka, so far as fixing attendance areas and boundaries for all the elementary school buildings in Topeka; it would require the transfer of many white and negro children from the schools they now attend to other buildings, as well as the transfer and assignment of many teachers to serve the resulting new classes in the various buildings. Many of the grade schools now used for white children in the city are already full, and some are badly overcrowded. A school building program has been carried on and is being carried on now. The Southwest School was completed and opened in 1952; two other new schools are under construction now, and the Board is deciding on new sites for still two more schools to be constructed as quickly as possible. All five of these new buildings are, or will be, in areas where there have been new housing projects, and where the school population is now and probably will remain predominantly white children. These schools will probably not serve many negro children even when segrega- tion is finally abolished. The majority of the negro school population resides in a few scattered areas throughout the older parts of the city, and is not evenly distributed throughout the entire city. Many negro children live nearest to white schools which are already overcrowded. To transfer and admit these negro children to the schools nearest their residences will require either that many white children now attending such schools will have to be transferred to other schools, or that annexes will have to be provided. In short we have little doubt that the area boundaries of the existing white and negro schools will have to be redefined. This will necessarily require reassigning students, both white and negro, to schools which they do not now attend, and this in turn will require changing the classes to fit the new children in, and may involve transferring teachers from building to building as well. It is the plan of the Board of Education of Topeka to make the transition from segregated to integrated elementary schools gradually and in an orderly manner on a school by school basis, but as rapidly as is practically possible. Such changes will be made at convenient times between semesters, and in such a manner that the administrative decisions and changes can be conveniently and efficiently handled without interrupting the continuity of the regular school program. The Board has discussed its policy and plans in open, public meetings attended by members of both white and negro races. It has invited and secured cooperation and suggestions, and the public generally in the community is assisting the Board in achieving its objective of terminating segrega- tion “as rapidly as is practicable.” If this Court should enter an order to abolish segregation in the public schools of Topeka “forthwith,” as suggested in Question 4(a), the Topeka Board would, of course, do its best to comply with the order. We believe, however, that it would probably require that the regular classes be suspended, while the many administrative changes and adjustments are being made, and while the necessary transfers of and reassignment of students and teachers are being made. Important decisions would have to be hurriedly made, without time for careful investigation of the facts nor for careful thought and reflection. Most decisions would have to be made on a temporary or an emergency basis. We believe the attendant confusion and interruption of the regular school program would be against the public interest, and would be damaging to the children, both negro and white alike. We respectfully urge that in making and issuing its decree this Court has equitable power and discretion to shape the decree and to control its execution in such a manner as to protect the public interest: United States v. Morgan, 307 U.S. 183, 81 L. Ed. 1211, 59 S. Ct. 795: “It is familiar doctrine that the extent to which a court of equity may grant or withhold its aid, and the manner of mould- ing its remedies, may be affected by the public interest involved.” (p. 1219, L. Ed.) Virginia Ry. Co. v. System Federation No. 40, 300 U.S. 515, 81 L. Ed. 789, 52 S. Ct. 512: “6. The extent to which equity will go to give relief where there is no adequate remedy at law is not a matter of fixed rule, but rests rather in the sound discretion of the court. “7. Courts of equity may, and frequently do, go much further to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” (Syll. 6. and 7.) Securities Exch. Comm. v. U. S. R. and Imp. Co., 310 U.S. 434, 84 L. Ed. 1293, 60 S. Ct. 1044: “7. A court of equity has discretion, in the exercise of jurisdiction committed to it, to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 131 U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE BD. OF EDUC., TOPEKA, KS, ON QUESTIONS PROPOUNDED BY THE COURT grant or deny relief upon performance of conditions which will safeguard the public interest.” (Syll. 7.) Because the Board of Education believes that a “forthwith” order to abolish segregation in the Topeka school system would seriously damage and interrupt the operation and administration of the schools and would be plainly against public interest, and because it believes that an order to abolish segregation, in the public interest, should permit “an effective gradual adjustment”; we respectfully submit that Ques- tion 4(a) propounded by the Court should be answered in the negative, and that Question 4(b) should be answered in the affirmative. III. QUESTIONS 5(a), (b) AND (c) SHOULD BE ANSWERED IN THE NEGATIVE If segregation in the public schools of Topeka is to be abolishe d by decree of the Court permitting an “effective gradual adjust- ment” as suggested in Question 4(b), then the Board of Education should be permitted to manage the readjustment, subject only to the usual and normal jurisdiction always retained by a court of equity for the enforcement of its decree or judgment. We have heretofore pointed out the many intricate administrative decisions which will be involved in the transition to an integrated system of grade schools in Topeka. These are the problems and decisions which the Board of Education is organized to handle. Clearly there will be considerable administrative expense involved in making the adjustment. In Kansas the Board of Education is required to comply with cash basis and budget laws in connection with such expenditures, and taxes must be levied for such expenses within the levy limitation laws. Thus the necessary adjustments for a transition from segregated to integrated schools will affect nearly all the other administrative actions of the Board of Education. For this Court or a special master to undertake to control the necessary readjustments or to draw detailed orders and decrees will involve them in the control and direction of the administration of the entire school program either directly or indirectly. We believe such detailed control by this Court or a special master is unnecessary and undesirable. We therefore submit that Ques- tions 5(a), (b) and (c) should be answered in the negative. IV.QUESTION5(d)SHOULDALSOBE ANSWERED IN THE NEGATIVE If this Court should enter an order or decree as suggested in Question 4(b), there is no need for a more specific or detailed decree in this case. The Board of Education of Topeka has already on its own initiative resolved to terminate segregation in the elementary schools “as rapidly as is practicable” and has already taken its first step toward that end by providing for an integrated syste m in two schools which were formerly used only for white children. Certainly at this time there is no need for a more detailed decree than the decree suggested in Question 4(b). The District Court will always have jurisdiction to enforce the dec ree. If the need for a more specific decree should arise in the future, the District Court will have ample power to make such a decree under its general power to enforce the judgment and decree of the court. We respectfully submit that Question 5(d ) should be answered in the negative. PETER F. CALDWELL, Counsel for the Board of Education of Topeka, Kansas, 512 Capitol Federal Building, Topeka, Kansas. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE BD. OF EDUC., TOPEKA, KS, ON QUESTIONS PROPOUNDED BY THE COURT BROWN V. BOARD OF EDUCATION OF TOPEKA BROWN ET AL. V. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KAN., ET AL BRIGGS ET AL V. ELLIOTT ET AL. DAVIS ET AL. V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., ET AL GEBHART ET AL. V. BELTON ET AL. Nos. 1, 2, 4, 10. Reargued Dec. 7, 8, 9, 1953. Decided May 17, 1954. 347 U.S. 483 Class action originating in the four states of Kansas, South Carolina, Virginia, and Delaware, by which minor Negro plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs form adverse decisions in the United States District Courts, District of Kansas, 98 F.Supp. 797, Eastern District of South Carolina, 103 F.Supp. 337, and on grant of certiorari after decision favorable to plaintiffs in the Supreme Court of Delaware, 91 A.2d 137, the United States Supreme Court, Mr. Chief Justice Warren, held that segregation of child in public schools solely on the basis race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities, in contravention of the Equal Protection Clause of the Fourteenth Amendment. Cases ordered restored to docket for further argument regarding formulation of decrees. In resolving question whether segregation of races in public schools constituted a denial of equal protection of the laws, even though the tangible facilities provided might be equal, court would consider public education in light of its full development and present status throughout the nation, and not in light of conditions prevailing at time of adoption of the ame nd- ment. U.S.C.A.Cons t. Amend. 14. The opportunity of an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. U.S.C.A.Const. Amend. 14. The segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of minority group of equal educational opportunities, and amounts to a deprivation of the equal protec- tion of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution. U.S.C. A.Const. Amend. 14. The doctrine of “separate but equal” has no place in the field of public education, since separate educational facilities are inhere ntly unequal. U.S.C.A.Const. Amend. 14. In view of fact that actions raising question of constitutional validity of segregation of races in public schools were class actions, and because of the wide applicability of decisions holding that segregation was denial of equal protection of laws, and the great variety of local conditions, the formation of decrees presented problems of considerable complexity, requiring that cases be restored to the docket so that court might have full assistance of parties in formulating appropriate decrees. U.S.C.A.Const. Amend. 14. No. 1: Mr. Robert L. Carter, New York City, for appellants Brown and others. Mr. Paul E. Wilson, Topeka, Kan., for appellees Board of Education of Topeka and others. Nos. 2, 4: Messrs. Spottswood Robinson III, Thur- good Marshall, New York City for appellants Briggs and Davis and others. Messrs. John W. Davis, T. Justin Moore, J. Lindsay Almond Jr., Richmond, Va., for appellees Elliott and County School Board of Prince Edward County and others. Asst. Atty. Gen. J. Lee Rankin for United States amicus curiae by special leave of Court. No. 10: Mr. H. Albert Young, Wilmington, Del., for petitioners Gerbhart et al. MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 133 U.S. SUPREME COURT, MAY 1954 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Mr. Jack Greenberg, Thurgood Marshall, New York City, for respondents Belton et al. Mr. Chief Justice Warren delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. 1 In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been den ied admission to schools attended by white children under laws requiring or permit- ting segregation according to race. This segre- gation was alleged to deprive the plaintiffs of the equal protection of the laws under the Four- teenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal ” doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be sepa- rate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. 2 Argument was heard in the 1952 Term, and reargument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. 3 Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregatio n, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or natu- ralized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and 1 In the Kansas case, Brown v. Board of Education,theplaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat1949, § 72–1724. Pursuant to the authority, the Tupeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C.A. § 1253. In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C. Const. Art. XI, § 7; S.C. Code 1942 § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A.§§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F.Supp. 529. This Court vacated the District Court’s judgment and remanded the case for the purpose of obtaining the court’s reviews on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F.Supp. 920. The case is again here in direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253. In the Virginia case, Davis v. County School Board,the plaintiffs are Negro children of high school age residing Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. § 140; Va. 134 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, MAY 1954 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION wished them to have the most limited effect. What others in Congress and the state legis- latures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. 4 In the South, the movement toward free common schools, sup- ported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by the law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education. In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. 5 The doctrine of “separate but equal” did not make its appear- ance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not educa- tion but transportation. 6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. 7 In Cumming v. Board of Education of Richmond County, 175 U. S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged. 8 In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students were denied to Negro Students of the same educational quali- fications. State of Missouri ex rel. G aines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Reg ents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v, Oklahoma State Code 1950, § 22–221, The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forwith to provide substantially equal curricula and transportation and to “proceed with all reasonable diligence and dispatch to remove” the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253. In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, § 2; Del.Rev.Code, 1935, § 2631, 14 Del.C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, phys- ical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor’s decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools and had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S, 891, 73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition. 2 344 U.S. 1, 73 S.Ct. 1, 97 L.Ed. 3, Id., 344 U.S. 141, 73 S.Ct. 124, 97 L.Ed. 152, Gebhart v. Belton, 344 U.S. 891, 73 S.Ct. 213, 97 L.Ed. 689. 3 345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae. 3. 345 U.S. 972, 73 S.Ct. 1118, 97 L.Ed. 1388. The Attorney General of the United States participated both Terms as amicus curiae. 4 For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 135 U.S. SUPREME COURT, MAY 1954 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v, Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases , that question is directly presented. Here, unlike Sweatt v. Painter , there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respec t to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. 9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. [1] In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. [2] Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. [3] We come then to the question pre- sented: 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 oppor- tunities? We believe that it does. In Sweatt v. Painter , supra [339 U.S. 629, 70 S.Ct. 850], in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra [339 Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Crimin, supra, at 269–275; Cubberley, supra, at 288–339, 408–431; Knight, Public Education in the South (1922), ecc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sees. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South and did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South (e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408– 424. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id., at 427–428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112–132, 175–195. Compulsory school attendance laws were not generally adopted until after the ratification of the fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563–565. 5 In re Slaughter-House Cases, 1873, 16 Wall. 36, 67–72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100 U.S. 303, 307–308, 25 L.Ed. 664. “It ordains that no State shall deprive any person of life, liberty, or property. without due process of deny, to any person within its jurisdiction the equal protection of the laws. 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 implicationofa positive immunity, or right, most valuable to the colored race,—the right to exemption from unfriendly legislation against them distinctively as colored,— exemption from legal discrimination, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reduc- ing them to the condition of a subject race.” 136 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, MAY 1954 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION . speech of Rep. Schuyler Colfax (Ind.), id. at 644. 76 CONG. GLOBE, 34th Cong., 3rd Sess. app. 135–140 (1857). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW BROWN V. BOARD OF. 1044: “7. A court of equity has discretion, in the exercise of jurisdiction committed to it, to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILESTONES IN THE LAW BROWN V. BOARD OF EDUCATION 131 U.S Building, Topeka, Kansas. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 132 BROWN V. BOARD OF EDUCATION MILESTONES IN THE LAW U.S. SUPREME COURT, OCTOBER 1953 BRIEF FOR THE BD. OF EDUC., TOPEKA, KS,