it was ruled that qualified Negroes must be afforded the opportunity for equivalent legal training within the State without undue delay, or else be admitted to the white law school.38

In the Gaines case the Court held that Missouri denied equal protection of the laws to Gaines, a Negro, in refusing him admission to the University of Missouri Law School when the State had provided no substantially equal facilities for Negroes within its jurisdiction. Missouri, like other Southern and Border States, had provided for the payment of tuition fees of qualified Negro citizens of the State in the law schools of unsegregated States and insisted that by this arrangement it had met the "separate but equal" requirement.

This contention was flatly rejected by the Court. Chief Justice Hughes, speaking for the Court, asserted that equal protection requires that Missouri provide equal facilities for Negroes and whites within its own boundaries. "The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the quality of privileges which the law gives to the separated groups within the State," declared the Chief Justice. The provision for the payment of tuition fees in another State does not remove the discrimination, for the "obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction." 40

Nor did the State's argument that there was little demand for legal education on the part of Negroes in Missouri have any bearing on the issue. The right asserted by the petitioner, said the Court, was a personal one and could not be abridged because no other Negroes sought the same opportunity.

The big surge towards repudiation of the "separate but equal" theory came in 1950 when the Court, in two vitally significant cases, unanimously rejected racial segregation in the professional and graduate schools of State universities.

In the first of those cases, Sweatt v. Painter 1 the Court held that the barring of a Negro applicant from the University of Texas Law School had deprived him of the equal protection of the laws, even though Texas had, at considerable expense, provided a separate law school for Negroes within the State. In effect, the Court found that a segregated law school for Negroes could not provide them equal educational opportunities. In reaching such a conclusion, the Court relied heavily on "those qualities which are incapable of objective measurement but which make for greatness in a law school." 42

Sipuel v. University of Oklahoma, 332 U.S. 631 (1948).

See note 37 supra, at 349.

"See note 37 supra, at 350. 4339 U.S. 629 (1950).

See note 37 supra, at 634.

In short, legal education equal to that offered by the State to white students was not available to Negroes in a separate law school. Nevertheless, the Court explicitly refused either to affirm or to reexamine the doctrine of Plessy v. Ferguson, on the principle that it was not in the context of the case at issue. It simply held that the equal protection clause of the Fourteenth Amendment required Sweatt to be admitted to the University of Texas Law School, but it raised the standard of equality in higher education to such a level as to make it difficult for any segregated arrangement to meet the test of constitutionality.

The Sweatt ruling was reinforced in the McLaurin case." McLaurin, a Negro graduate student in a State university in Oklahoma, had been separated from his fellow students by segregated seating arrangements in the university dining room, the library, and the classroom. This, the Supreme Court held, was a denial of equal protection, in that it handicapped him in the effective pursuit of his studies. The restrictions, said Chief Justice Vinson, "impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." 44

Against the argument that McLaurin's fellow students might refuse to associate with him regardless of State discrimination, the Court retorted that this was irrelevant. "There is a vast difference, a Constitutional difference, between restrictions imposed by the State which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the State presents no such bar." 45

Here the Court leaned even more heavily upon psychological and other intangible factors than in the Sweatt case, but it again refused to re-examine the Plessy case. In both cases, the Court had, in effect, rejected segregation without repudiating or overruling the "separate but equal" doctrine. It was able to do this because there was before it in these, as in earlier cases, a specific racial discrimination within the pattern of segregation. It could therefore grant relief to the Negro plaintiff without ruling on the whole problem of school segregation. Nevertheless, these two cases had the effect of divesting Plessy v. Ferguson of much of its constitutional substance and paved the way for the historic segregation decisions of May 17, 1954.

THE SCHOOL SEGREGATION CASES

The Supreme Court's consideration of these cases was marked by extraordinary caution and deliberation. When the Court convened in the fall of 1952, there awaited it five cases in which racial segrega

43 McLaurin v. Oklahoma State Regents For Higher Education, 339 U.S. 637 (1950). Id. at 641.

45 Ibid.

tion of children in public schools was squarely challenged as unconstitutional. Four of these cases had originated, respectively, in Kansas, South Carolina, Virginia, and Delaware; the fifth was from the District of Columbia.

After hearing argument on the five cases in December 1952, the Court failed to reach a decision in the 1952 term. On June 8, 1953, it ordered the cases restored to the docket for re-argument in the 1953 term. On this occasion the Court resorted to the unusual practice of requesting counsel to provide answers, if possible, to certain important questions posed by the Court. Essentially what the Court wanted to know was whether there was historical evidence to show the intentions of those who proposed and approved the Fourteenth Amendment with respect to its effect upon racial segregation in the public schools, and, if the Court should find segregation in violation of the Fourteenth Amendment, what sort of decree should and could be issued to effect an orderly termination of segregation? On this latter point, the Court was concerned as to how, in the exercise of its equity powers, it could "permit an effective gradual adjustment from existing segregated systems to a system not based on color distinctions?"

The cases were re-argued in December 1953, with elaborate briefs on the intention of the framers and ratifiers of the Fourteenth Amendment. The court still proceeded with deliberation and did not hand down its decision until May 17, 1954.

The four cases arising from the aforementioned States were considered in a consolidated opinion under the title of Brown v. Board of Education, the case that had come from Topeka, Kansas. On the question of the intended effect of the Fourteenth Amendment on education, the historical evidence submitted by counsel and supplemented by the Court's own investigation was considered inconclusive. But there was a definite answer on the question of whether racial segregation and equal protection under the laws were constitutionally consistent. Although findings of fact in the lower courts showed that colored and white schools had been equalized, or were being equalized insofar as tangible factors were concerned, the charge was made here that public segregation per se denied equal protection.

Chief Justice Warren, again emphasizing the intangible factors of Sweatt and McLaurin, declared for the unanimous Court that such considerations apply with added force to children in grade and high schools. To segregate children of minority groups from others of similar age and qualifications solely because of their race, he said, creates a feeling of inferiority as to their status in the community, and this sense of inferiority affects the motivation of the child to learn.

347 U.S. 483 (1954).

Hence, the Supreme Court agreed with the Kansas court that "Segregation with the sanction of law has a tendency to [retard] the education and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial [ly] integrated school system." The Court, therefore, concluded that the doctrine of "separate but equal" had no place in the field of public education. The decision stated that "separate educational facilities are inherently unequal" and that the plaintiffs involved here had been "deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." 47

In reaching this conclusion, the Court considered "Public education in the light of its full development and its present place in American life throughout the Nation." "In approaching this problem," said the Chief Justice," we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written." 48

The Court did not at this time issue a decree putting its decision into effect. Rather, it ordered the cases restored to the docket for further argument on the nature of the decree by which its decision might be given effect.

In its implementing decision of May 31, 1955," the Court pointed out that its earlier opinions "declaring the fundamental principle that racial discrimination in public education is unconstitutional are incorporated herein by reference" and declared that "all provisions of Federal, state, or local law requiring or permitting such discrimination must yield to this principle." The district courts, to which the cases were remanded, were directed to require that the school authorities "make a prompt and reasonable start towards full compliance" 50 with the Court's May 17, 1954 ruling. Once such a start has been made in good faith, the ruling stated, courts may afford additional time to carry out the ruling. In effecting a gradual transition from segregated to non-segregated schools, the district courts "may consider problems related to the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non

47 Id. at 494, 495. See also Bolling v. Sharpe, 347 U.S. 497 (1954), wherein segregation in the District of Columbia was held to violate the due process clause of the Fifth Amendment. A separate ruling was required because the equal protection clause of the Fourteenth Amendment applies only to action by a State.

48 Id. at 492.

Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294, 298 (1955). 50 Id. at 300.

racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." 51 While it is clear from the language of the Court that all of these procedures must look towards compliance with the Court's ruling at the earliest practicable date, there is no indication that reasonable time will not be afforded for adjustment to difficult local situations. The Court's opinion recognizes diversity of local conditions, and its phrase "with all deliberate speed" does not contemplate uniform compliance as of a given date.52 But the Court does demand a prompt and reasonable start towards good-faith compliance.

It should be noted, however, that the Supreme Court, in its so-called Little Rock decision of September 12, 1958, and in its opinion of September 29, 1958,53 makes it unmistakably clear that no scheme of racial discrimination against Negro children in attending public schools can stand the test of the equal protection of the laws, if "there is State participation through any arrangement, management, funds or property." Furthermore, delay in carrying out the Court's desegregation ruling for the purpose of denying the constitutional rights of Negro children cannot be countenanced. Finally, it may be pointed out that in Shuttlesworth v. Birmingham Board of Education 54 the United States Supreme Court upheld as valid on its face the Alabama Pupil Placement Law "upon the limited grounds on which the District Court rested its decisions," namely, on the assumption that the law would be administered in a constitutional manner. Thus, the entire body of State legislation enacted for the purpose of circumventing, evading, or delaying the application of the Court's decision would seem to be doomed.

" Id. at 300–301.

"Using this phrase in 1911, in the case of Virginia v. West Virginia, 222 U.S. 20 (1911), Justice Holmes attributed it to English Chancery, thus: "A question like the present should be disposed of without undue delay. But a State cannot be expected to move with the celerity of a private business man; it is enough if it proceeds, in the language of the English Chancery, with all deliberate speed." On behalf of this Commission, the Student Legal Research Group of the University of Virginia searched English Chancery cases from 1220 to 1865, case by case, and found nothing closer than "with all convenient speed" and "as soon as conveniently might be." For examples of the first phrase, see Vickers v. Scott, 40 Eng. Rep. (3 My. & K. 500) 190 (Ch. 1834); Buxton v. Buxton, 40 Eng. Rep. (1 My. & Co. 80), 307 (Ch. 1935). For examples of the second phrase, see Bullock v. Wheatley, 63 Eng. Rep. (1 Coll. 130) 352 (Ch. 1844); Belfour v. Welland, 33 Eng. Rep. (16 Ves. Jun. 151) 941 (Ch. 1809).

But with unhurrying

Another possibility: Justice Holmes may have read the key words in Francis Thompson's famous poem The Hound of Heaven, published in 1893: ". chase,/ And unperturbed pace,/ Deliberate speed, majestic instancy. Cooper v. Aaron, 358 U.S. 28; 358 U.S. 1, 4-7 (1958).

4358 U.S. 101 (1958).

.."