guage in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.' 12 Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary questionthe constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term." The Attorney General 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). 12 See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment. "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment “(a) would a decree necessarily follow providing that, within the of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954." It is so ordered. 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 should the courts of first instance follow in arriving at the specific terms of more detailed decrees?" 14 See Rule 42, Revised Rules of this Court (effective July 1, 1954). BRIGGS et al. v. ELLIOTT et al. Civ. A. No. 2657. United States District Court E. D. South Carolina, Charleston Division. Heard May 28, 1951. Harry Briggs, Jr., and others sued R. W. Elliott, chairman, and the other members of the Board of Trustees of School District No. 22, Clarendon County, South Carolina, and others for a declaratory judgment and injunctive relief. The three judge district court, Parker, Circuit Judge, held that the plaintiffs were entitled to a declaration to the effect that the school facilities afforded Negro children in the district were not equal to the facilities afforded white children in the district and to a mandatory injunction requiring that equal facilities be afforded them, but held that the segregation of the races in the public schools, as required by the Constitution and statutes of South Carolina, was not of itself a denial of the equal In suit for declaratory judgment and injunctive relief brought by Negro children of school age and their parents and guardians against school officials having control of schools in district, where defendants admitted upon record that educational facilities afforded in district for colored pupils were not substantially equal to those afforded for white pupils, plaintiffs would be entitled to declaration to that effect and to mandatory injunction requiring that equal facilities be afforded them. U.S.C.A.Const. Amend. 14. 3. Constitutional law 70(3) Schools and school districts 13 Segregation of races in public schools, so long as equality of rights is preserved, is matter of legislative policy for several states, with which federal courts are powerless to interfere. 4. Constitutional law 81 Each state must determine for itself, subject to observance of fundamental rights and liberties guaranteed by federal Constitution, how it shall exercise police power; that is, the power to legislate with respect to safety, morals, health and general welfare. 5. Constitutional law 220 Segregation of races in public schools, as required by Constitution and statutes of South Carolina, is not of itself a denial of equal protection of laws guaranteed by Fourteenth Amendment. U.S.C.A. Const. Amend. 14. 6. Courts 96(1) Federal District Court may not ignore unreversed decisions of Supreme Court of United States which are squarely in point and conclusive of questions before it. 7. Courts 262.4(6) Where segregation of races in public schools is required by state law, federal 1. Article 11, section 7 of the Constitution of South Carolina is as follows: "Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race." District Court, as court of equity, should exercise its power to assure children allegedly provided with inferior facilities that equality of treatment to which they are entitled, with due regard to legislative policy of state, but court should not use its power to abolish segregation in state where it is required by law if the equality demanded by Constitution can be attained otherwise. Thurgood Marshall, Robert L. Carter, New York City, Harold R. Boulware, Columbia, S. C., Spottswood W. Robinson, III, Richmond, Va., Arthur Shores, Birmingham, Ala., A. T. Walden, Atlanta, Ga., for plaintiffs. T. C. Callison Atty. Gen., of South Carolina, Robert McC. Figg, Jr., Charleston, S. C., S. E. Rogers, Summerton, S. C., for defendants. Before PARKER, Circuit Judge, and WARING and TIMMERMAN, District Judges. PARKER, Circuit Judge. This is a suit for a declaratory judgment and injunctive relief in which it is alleged that the schools and educational facilities provided for Negro children in School District No. 22 in Clarendon County, South Carolina, are inferior to those provided for white children in that district and that this amounts to a denial of the equal protection of the laws guaranteed them by the Fourteenth Amendment to the Federal Constitution, and further that the segregation of Negro and white children in the public schools, required by Article 11, section 7 of the Constitution of South Carolina and section 5377 of the Code of Laws of that state,1 is of itself violative of the equal protection clause of the Fourteenth Amendment. Plaintiffs are Negro children of school age who are entitled to attend Section 5377 of the Code of Laws of South Carolina of 1942 is 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 public schools in District No. 22 in Clarendon County, their parents and guardians. Defendants are the school of ficials who, as officers of the state, have control of the schools in the district. A court of three judges has been convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284, the evidence offered by the parties has been heard and the case has been submitted upon the briefs and arguments of counsel. * At the beginning of the hearing the defendants admitted upon the record that "the educational facilities, equipment, curricula and opportunities afforded in School District No. 22 for colored pupils * are not substantially equal to those afforded for white pupils". The evidence offered in the case fully sustains this admission. The defendants contend, however, that the district is one of the rural school districts which has not kept pace with urban districts in providing educational facilities for the children of either race, and that the inequalities have resulted from limited resources and from the disposition of the school officials to spend the limited funds available "for the most immediate demands rather than in the light of the overall picture". They state that under the leadership of Governor Byrnes the Legislature of South Carolina has made provision for a bond issue of $75,000,000 with a three per cent sales tax to support it for the purpose of equalizing educational opportunities and facilities throughout the state and of meeting the problem of providing equal educational opportunities for Negro children where this had not been done. They have offered evidence to show that this educational program is going forward and that under it the educational facilities in the district will be greatly improved for both races and that Negro children will be afforded educational facilities and opportunities in all respects equal to those afforded white children. [1,2] There can be no question but that where separate schools are maintained for Negroes and whites, the educational facilities and opportunities afforded by them must be equal. The state may not deny to any person within its jurisdiction the equal protection of the laws, says the Fourteenth Amendment; and this means that, when the state undertakes public education, it may not discriminate against any individual on account of race but must offer equal opportunity to all. As said by Chief Justice Hughes in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 349, 59 S.Ct. 232, 236, 83 L.Ed. 208. "The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State." See also Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Corbin v. County School Board of Pulaski County, 4 Cir., 177 F.2d 924; Carter v. School Board of Arlington County, Va., 4 Cir., 182 F.2d 531; McKissick v. Carmichael, 4 Cir., 187 F.2d 949. We think it clear, therefore, that plaintiffs are entitled to a declaration to the effect that the school facilities now afforded Negro children in District No. 22 are not equal to the facilities afforded white children in the district and to a mandatory injunction requiring that equal facilities be afforded them. How this shall be done is a matter for the school authorities and not for the court, so long as it is done in good faith and equality of facilities is afforded; but it must be done promptly and the court in addition to issuing an injunction to that effect will retain the cause upon its docket for further orders and will require that defendants file within six months a report showing the action that has been taken by them to carry out the order. [3] Plaintiffs ask that, in addition to granting them relief on account of the inferiority of the educational facilities furnished them, we hold that segregation of the races in the public schools, as required by the Constitution and statutes of South Carolina, is of itself a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, and that we enjoin the enforcement of the constitutional provision and statute requiring it and by our injunction require defendants to admit Negroes to schools to which white students |