BROWN, et al v BOARD of EDUCATION

CLOSING ARGUMENTS

918.19 Closing Arguments-- As provided in the common law after the closing of evidence:

(1) The plaintiff or appellant shall open the closing argument.

(2) The defendant or appellee may reply.

(3) The plaintiff or appellant may reply in rebuttal.

CLOSING ARGUMENT

MR. MARSHALL: May it please the Court. The specific provision of the South Carolina Code at issue reads as follows:

 

"It shall be unlawful for pupils of one race to attend the schools provided by boards of trustees for persons of another race."

The relevant provision of the South Carolina Constitution reads:

"Separate schools shall be provided for children of the white races and no child of either race shall ever be permitted to attend a school provided for children of the other race."

These are the two provisions of the law of the State of South Carolina under attack in this particular case.

At the first hearing in the District Court, before the trial got under way, counsel for the appellees, in open court, read a statement in which he admitted that although prior to that time the state had decided that the physical facilities of the separate schools were equal, they had concluded finally that they were not equal and had committed state resources to ensure future equality.

I want to point out that our position is not that we are denied physical or financial equality in these cases. I think there has been a considerable misunderstanding on that point. We are saying that there is a denial of equal protection of the laws, the legal phraseology of the clause in the Fourteenth Amendment of the Constitution of the United States. I say that because most of the cases in the past have gone off the point in considering whether or not there is substantial physical and financial equality.

We, as counsel for the appellants, have made our position clear that our attack on segregation is not being made on the “separate but equal” basis as to physical facilities or funding, the position we were taking is that these statutes are unconstitutional not just because they produce inevitable inequalities in physical facilities, but that evidence would be produced by expert witnesses to show that governmentally imposed racial segregation is in and of itself also a denial of equality.

This Court has laid down the rule in Mueller that in the case of persons being classified in a legislative act, it must be shown that:  one, the state must show there is a physical difference between the two; and, two, that the physical difference has a fair and significant relationship with the subject matter being legislated.

If you will remember, the testimony of one our expert witnesses, Dr. Redfield, was to the effect that there were no recognizable differences between the capacities of children of different races, and that if there were such a recognizable difference connected with education that it would be so insignificant as to be unworthy of anybody’s consideration. In substance, he said that given a similar learning situation, a Negro child and a white child would tend to have the same innate abilities.

The State of South Carolina has made no effort up to this date to show any basis for its racial classification other than saying that it would be unwise to do otherwise.

In this case, we produced expert witnesses who had surveyed the school situation to show the full extent of the psychological and sociological inequalities bred by racial segregation. Appellees say that they do not think too much of them. I do not think that the District Court thought too much of them. But the evidence stands in the record as unchallenged, and I think we have arrived at a stage where the courts give full credence to the testimony of people who are experts in their fields.

Expert witnesses testified that segregation deterred the development of the personalities of the children in Clarendon County.  Other expert witnesses testified that it deprives them of equal status in the school community, that it destroys their self-respect.  Additional expert witnesses testified that it denies them full opportunity for democratic social development. Another expert witness said that it stamps the Negro child with a badge of inferiority. And one expert witness, Dr. Kenneth Clark, examined the appellants in this very case and found that they suffered direct harm as a result of racial segregation.

The District Court completely disregarded this evidence.

I do not know what clearer testimony we could produce in an attack on a specific statute as applied to a specific group of appellants.

The only evidence produced by the appellees in this case was one witness who testified as to, in general, the running of the school system and the difference between rural schools and consolidated schools; testimony which has no bearing whatsoever on the constitutional question before us. 

Opposing counsel has made no effort whatsoever – no effort whatsoever – to support the legislative determinations of the state of South Carolina, and yet this Court is being asked to uphold those statutes because, it is urged, that this matter--as to whether or not we are going to have segregation--is a legislative matter.

So here we have the unique situation of a federal right and obligation under the Fourteenth Amendment--which has been asserted and upheld several times by this Court--being set aside on the theory that it is not for this Court to decide, it is a matter for the state legislature.

And that is directly contrary to every opinion of this Court, and to the Constitution itself.

It is true that there are areas in which the states are supreme. But in every case in the areas of what I might describe as the “sensitive areas” – freedom of speech or assembly, for example, or civil rights  – this Court has made its own independent determination as to whether a statute is constitutionally valid.

Yet in this case, the Court is urged to give blanket approval to segregation, and to yield control of racial segregation to the states, the direct opposite of what the Fourteenth Amendment was passed for, and the direct opposite of the intent of the Fourteenth Amendment and the framers of it. 

I think we have a case in point on this question. It is the Elkison1 decision by Mr. Justice William Johnson, appointed to this Court, if I remember, from South Carolina. The decision was rendered in 1823. It involved the State of South Carolina, which had provided that where free Negroes came in on a ship into Charleston, they had to be put in jail as long as the ship was in port and then put back on the ship when it left. It was argued that this was necessary to protect the people of South Carolina, and that a majority must have wanted it.  Mr. Justice Johnson made an answer to that argument in 1823, which I think is still good law today.

Mr. Justice Johnson said:

"But to all this the plea of necessity is urged; and of the existence of that necessity we are told the state alone is to judge. Where is this to land us? Is it not asserting the right in each state to throw off the federal constitution at its will and pleasure?  If it can be done as to any particular article, it may be done as to all; and, like the old confederation, the Union becomes a mere rope of sand."

REPLY

MR. DAVIS: In Clarendon School District No. 1 in South Carolina there were in the last report that got into this record 2,799 registered Negro children of school age, and 295 whites.  The state has now provided those 2,800 Negro children with schools as good in every particular as the white facilities as required by Plessy, Gaines, and Sweatt.

 

There are good teachers, the same funding, and the same curriculum as in the schools for the 295 whites. In fact, because of their being newer, they may even be better.


Who is going to disturb that situation?

 

You say that separation is racism. Well, it is not racism. Recognize that for sixty centuries and more humanity has been discussing questions of race and race tension, this is not racism.

 

Say that we make special provisions for the aboriginal Indian population of this country, it is not racism.

 

Twenty-nine states have miscegenation statutes now in force which they believe are of beneficial protection to both races, and which have all been upheld by this very court, this is not racism..

 

Disraeli said, “No man,” said he, “will treat with indifference the principle of race. It is the key of history.” And it is not necessary to enter into any comparison of faculties or possibilities. You must recognize that there are actual physical differences between races in the human animal, this is not racism.

 

But assuming, as is in your right and proper power, this Court should find that the statutes of the State of South Carolina violated the Constitution, it can so declare. If it should find that inequality is being practiced in the schools, it can enjoin its continuance.

 

But if these children were to be re-sorted or commingled, who knows how that could best be done?

 

If it is done on the mathematical basis, with 30 children as a maximum, which I believe is the accepted standard in pedagogy, you would have 27 Negro children and 3 whites in one school room. Would that make the children any happier? Would they learn any more quickly?  Would their lives be more serene?

 

Children of that age are not the most considerate animals in the world, as we all know.  Would the terrible psychological disaster being wrought, according to some of these witnesses, to the colored child be removed if he had three white children sitting somewhere in the same school room?

 

Would white children be prevented from getting a distorted idea of racial relations if they sat with 27 Negro children? I have posed that question because it is the very one that cannot be denied.

 

Your Honors do not sit, and cannot sit as a glorified Board of Education for the State of South Carolina or any other state.  Neither can the District Court. 

 

Neither this Court nor any other court, I respectfully submit, can sit in the chairs of the legislature of South Carolina and mold its educational system.  Even if segregation is found to be in its present form unacceptable, it is the State of South Carolina which must devise the alternative. It establishes the schools, it pays the funds, and it has the sole power to educate its citizens under the Constitution of the United States. 

 

What the legislature would do under these circumstances, I don’t know. I do know, if the testimony is to be believed, that whatever the result would not be pleasing to those who would prefer their own methods and none other.

 

But let me say this for the State of South Carolina. It does not come here in sack cloth and ashes. The State of South Carolina believes that its legislation is not offensive to the Constitution. It is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress, and the welfare of these children is best promoted in segregated schools, and it thinks it a thousand pities that by this controversy there should be urged the return to an experiment which gives no more promise of success today than when it was written into their Constitution by an occupation army during the tragic era of reconstruction.

 

I am reminded—and I hope it won’t be treated as a reflection on anybody present—of Aesop’s fable of the dog and the meat: the dog, with a fine piece of meat in his mouth, crossed a bridge and saw the shadow in the stream and plunged for it and lost both substance and shadow.  Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?

 

It is not my part to offer advice to the appellants and their supporters or sympathizers, and certainly not to the learned counsel. No doubt they think what they propose is best, and I do not challenge their sincerity in any particular period. But I entreat them to remember the age-old motto that the best is often the enemy of the good.

REBUTTAL

MR. MARSHALL: The children in these cases are guaranteed by the states some twelve years of education in varying degrees, and our worthy opposing counsel's idea is—and I think that it is a most ingenious argument if I understand it--to leave it to the states until they work it out.  Leave it to the states, they say; and then they say that the states haven’t done anything about it in a hundred years, so for that reason this Court can't touch it.

 

The argument of judicial restraint has no application in this case. There is a clearly defined constitutional relationship between Federal and State governments, but there is no corollary relationship when it comes to the Fourteenth Amendment.

 

The duty of following the Fourteenth Amendment is placed upon the states; the duty of enforcing the Fourteenth Amendment is clearly placed upon this Court.

 

We hereby charge them with making the same argument that was made before the Civil War, the same argument that was made during the period between ratification of the Fourteenth Amendment and the Plessy v Ferguson case.

 

It is our position that whether or not you base this case solely on the intent of the writers of the Fourteenth Amendment or whether you base it on the logical extension of the doctrine as set forth in the Sweatt case, the same conclusion is required.  This Court must make it clear to all the states that in administering their governmental functions, at least those that are vital not to the life of the state alone, not to the country alone, but vital to the world in general, that little pet feelings of race, little pet feelings of custom may not ever interfere with the due process and equal protection guaranteed to every citizen under the Constitution of the United States.

 

I got the feeling on hearing the discussion yesterday that when you put a white child in a school with colored children, the child would fall apart. Everybody knows that this is not true.  Those same kids in Virginia and South Carolina—and I have seen them do it—they play in the streets together, they play on their farms together, they go down the road together, and then they separate to go to school. They come out of school, and play ball together.

 

Why then must they be separated in school?

 

There must be some magic to it.

 

This court has specifically ruled that blacks and whites can vote together, serve on juries together, go to college together, attend law school together, but if they go to elementary and high school together, the world will fall apart. And it is the exact same argument that has been made to this Court over and over again, and we submit that when they charge us with making a legislative argument, it is in truth they who are making the legislative argument.

 

They cannot take race out of this case.

 

From the day this case was filed until this moment, nobody has in any form or fashion, despite the fact I made it clear in the opening argument that I was relying on it, done anything to distinguish this statute from the Black Codes.  And they must admit--because nobody can dispute--that the Fourteenth Amendment was intended to deprive the states of the power to enforce Black Codes.

 

We charge that the laws concerning segregation are Black Codes.2 They are obviously Black Codes if you read them.  Opposing counsel has never denied that they are Black Codes, so if the Court wants to very narrowly decide this case, they can decide it on that point.

 

But however it is done, the only way this Court can decide this case in opposition to our position is if there is some reason which gives the state the right and the overriding interest to make classifications in regard to nothing else except race.  And in order to arrive at the decision that they want us to arrive at, there would have to be some recognition of a reason why of all of the multitudinous groups of people in this country Negroes must be singled out and given this separate treatment.

 

It can’t be because of slavery in the past, because there are very few states in this country that haven’t had slavery some place back in history yet not all states have segregation today. It can’t be color because there are Negroes as white as the drifted snow, with blue eyes, and they are just as segregated as any other colored man.

 

We submit the only way to arrive at this decision is to find that for some reason Negroes by their very nature are inferior to all other human beings.

 

Nobody can stand in this Court . . . . in this country  . . . and urge that finding.

 

A finding for segregation would be an inherent determination that the people who were formerly in slavery, regardless of anything else, should be kept as near that stage as is legally possible. And now is the time, we submit, that this Court should make it clear that that is not what our Constitution stands for.

1Several southern states passed legislation requiring the free black sailors be detained in custody until their ship left port.  Such acts interfered with the conduct of both interstate and foreign commerce, and the British government strongly protested when the laws were applied to its seamen.  In Elkison v. Deliesseline (1823) Justice William Johnson, in a circuit court opinion, declared that South Carolina’s act was incompatible with congressional power to regulate commerce. South Carolina authorities refused to comply with Johnson’s ruling, and the Supreme Court never reviewed the constitutionality of the Negro Seamen’s Acts.  As this episode suggests, throughout the antebellum years [the years before the Civil War], the Supreme Court was under intense pressure to respect state police power.  This in turn may explain some of the analytical confusion that characterized cases involving state power over interstate commerce.

2The Black Codes of the 1860s are not the same as the Jim Crow laws. The Black Codes were in reaction to the abolition of slavery and the South's defeat in the Civil War. Southern legislatures enacted them in the 1860s. The Jim Crow era began after 1890s. Although the Black Codes are most commonly associated with southern states' attempts to control the freedoms of former slaves, in terms of laws that discriminated against African Americans Black Codes developed over the span of half a century.