Research Material for Speech- "The Broken Promise of 'Brown v Board of Education' ", 2004

Brown v. Board of Education of Topeka -- Opinion -- 387 U.S. 483 Page 6 of 7

(1950). The three-judge District Court, convened under 28 U. S. C. §§ 2281 and 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith 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 § 2631 (1935). 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, physical plant, and time and distance involved in travel. 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. Id., at 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 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. The plaintiffs, who were successful below, did not submit a crossd-petition. (Return to opinion)

2. 344 U.S. 1, 141, 891 (Return to opinion)

3. 345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae. (Return to opinion)

4. Gor 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, 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 Cremin, suptra, at 269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex. Doc. No. 315, 41st Cong., 2d Sess. (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 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, suptra, at 408-423. 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. (Return to opinion)

5. Slaughter-House Cases, 16 Wall. 36, 67-72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880): "It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or 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 implication of a positive immunity, or right, most valuable to the colored race, -- the right to exemption from unfriendly legislation against them distinctively as colored, -- excemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subjecty race." See also Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344-345 (1880). (Return to opinion)

6. The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 (1850), upholding school segregation against attacks as being violative of a state constitutional guarantee of equality. Segregation in Boston publi schools were eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern. (Return to opinion)

7. See also Berea College v. Kentucky, 211 U.S. 45 (1908). (Return to opinion)

8. In the Cumming case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school. (Return to opinion)

9. In the Kansas case, the court below found substantial equality as to all such factors. 98 F.Supp. 797, 798. In the South Carolina case, the court

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Brown v. Board of Education of Topeka -- Opinion -- 387 U.S. 483 Page 7 of 7

below found that the defendants were proceeding "promptly and in good faith to comply with the court's decree." 103 F.Supp. 920, 921. In the Virginia case, the court below noted that the equalization program was already "afoot and progressing" (103 F.Supp. 337, 341); since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A. 2d 137, 149. (Return to opinion)

10. A similar finding was made in the Delaware case: "I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated." 87 A. 2d 862, 865. (Return to opinion)

11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). (Return to opinion)

12 See Bolling v. Sharpe. post, p. 497. concerning the Due Process Clause of the Fifth Amendment. (Return to opinion)

13. "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment "(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or "(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? "5. on the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b), "(a) should this Court formulate detailed decrees in these cases; "(b) if so, what specific issues should the decrees reach; "(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; "(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures hsould the courts of first instance follow in arriving at the specific terms of more detailed decrees?" (Return to opinion)

14. See Rule 42, Revised Rules of this Court (effective July 1, 1954). (Return to opinion) ______________________ [symbol of court entrance and a judges hammer] _________________ Comments to: WebMaster, brownvbd@washlaw.edu All contents [copyright] 1996, Brown Foundation for Educational Equity, Excellence and Research. All Rights Reserved. Created: February 15, 1996. URL: http://brownvboard.org/research/opinions/347us483.htm

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TRANSCRIPT OF EDITED AND NARRATED ARGUMENTS IN Cooper v. Aaron, 358 U.S. 1 (1958)

Counsel for petitioners: Richard Butler, Little Rock, Arkansas Counsel for respondents: Thurgood Marshall, New York, New York Counsel for the United States, as amicus curiae: Solicitor General J. Lee Rankin, Washington, D.C.

Chief Justice Earl Warren: The Court is now reconvened in special term to consider an application by the petitioners for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit in the case of William Cooper, et al., versus John Aaron, et. al., Number 1 Miscellaneous.

Narrator: It's September 11, 1958. The Court's regular term begins in October. But Chief Justice Earl Warren has called a special session for argument of this case. Only three times before have the justices met during their recess. But few cases have raised issues of such legal and political importance.

This case began with the Court's unanimous decision in 1954 in Brown versus Board of Education. Racial segregation in public schools violated the Constitution's equal protection clause. The Court ruled the next year that integration should proceed, in their words, with "all deliberate speed." Many southern officials viewed this phrase as an invitation for foot-dragging and delay. The school board in Little Rock, Arkansas, prepared a plan that would begin in 1957 with token integration of the city's elite school, Central High. The plan wouldn't end segregation in Little Rock schools for another ten years.

Black parents refused to wait that long. They asked for legal help from the NAACP -- The National Association for the Advancement of Colored People. Their lawyers asked federal judges to speed up integration in Little Rock. All they got was an order to admit nine black students to Central High. Even this limited victory enraged racial bigots, who circled the school on opening day with howling mobs. Arkansas governor Orval Faubus ordered National Guard troops to keep the black kids out of Central High. When they approached the school, soldiers forced them back with bayonets.

After three weeks of violence, President Dwight Eisenhower finally ended the insurrection. He sent Army troops to escort the black students into Central High. For the rest of the school year, they fought harassment every day, in school corridors and on sidewalks. The school board continued to fight the Supreme Court. Federal judge Harry Lemley agreed to delay further integration for more than two years. An appellate court reversed his order, and the Supreme Court accepted the board's appeal.

The Constitution proclaims that its provisions are "the supreme law of the

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land." State officials may not disobey its commands. This case tests the power of the Supreme Court to enforce constitutional rights. It also tests federal authority over claims of "states' rights." The real contestants are President Eisenhower and Governor Faubus. But the actual parties are virtually unknown. William Cooper is president of the school board. John Aaron is first in alphabetical order of the black children whose parents sued the board. Richard Butler, an experienced Little Rock lawyer, argues for the board.

Butler: We believe that the manner and the methods employed by the United States Supreme Court in the two Brown decisions of 1954 and 1955 recognized the complexities of this problem, as had previous courts in determining issues of a similar nature. Both of the Brown decisions, in our opinion, reflect an understanding by this Court of the history of the Negro race and of the cultural patterns throughout this land.

We believe that this Court recognized that time was required for certain cultural patterns to change and that obviously this Court recognized the necessity or at least the desirability of referring those matters to the local district courts for innumerable problems which this Court recognized would arise, and some of which were enumerated in the decision.

"Deliberate speed," as used by this Court, is certainly not just a phrase coined on the spur of the moment or developed as a philosophy of opportunism to solve an immediate problem, but instead to us it was a carefully conceived philosophy of deliberation which, along with legal reasons for delay as outlined by this Court in the second Brown decision, allows for the flexibility and the delay provided in the decision by District Judge Harry J. Lemley. In effect, it provides for a transition from one era to another or from one set of standards to another.

Narrator: Butler asked for a stay of court orders while Arkansas lawmakers debated ways to block school integration. Chief Justice Warren did not conceal his doubts.

Warren: Has the school board determined what it will do toward desegregation or toward leaving the matter as it was last year, in the event this court declines to grant this stay?

Butler: No, sir. It has not decided because it's almost compelled to see what statutes are passed by the general assembly now in session and various other things, which it has no way of determining, and this school board no doubt will have to meet those situations as they arise, as they have had to do all the past year.

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Warren: Well, as to these specific children, have they been assigned to any school?

Butler: It is my information, Mr. Chief Justice, that they have now . . . (Warren: they have not been?) Yes sir, they have now been assigned to the all-Negro school, the new high school there, Horace Mann.

Warren: Well, isn't that, isn't that action toward segregating them again?

Butler: Oh, yes, sir, it is.

Narrator: Butler restated his appeal for delay.

Butler: It is impossible for the school board of Little Rock to operate a school program for the two thousand students at Central High School on an integrated basis at this time, and that unless the plan of desegregation is postponed for a reasonable length of time, that irreparable harm will be inflicted upon the students of both Negro and white race. Now the broad issue, of course, in this case is simply this: Can a court of equity postpone the enforcement of the plaintiffs' constitutional rights if the immediate enforcement thereof will deprive others -- many others, as a matter of fact -- of their constitutional rights to an education in a free public school?

In Little Rock as well as throughout the South, and in other places where this problem has arisen, the great mass of people are not law violators as such. They are not people who form mobs, they are not people who defy the law, but we submit, and this school board determined, that they were entitled to know what the law was. And as long as editorialists, popular editorialists in our community, were saying that this was not the law of the land, and that there were ways to get around it, and one court was saying one thing, and another court was saying another, and there were laws on the state statute books of Arkansas as well as other states throughout the South, diametrically opposed, as some people argued, some of them could be reconciled, some of them could not, with the decision in the Brown case, but it left the people of our community, as well as the people of many communities, in actual doubt as to what the law was.

Narrator: Justice Felix Frankfurter had little sympathy.

Frankfurter: The governor's calling out troops isn't the same thing as the uncertainty of what the law is. That has nothing to do with the uncertainty of the law. That's the action of the governor under what he thought was his refusal to abide by the law.