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16, 62 L.Ed. 149, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law.

"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause." Reversed.


Harry BRIGGS, Jr., et al., Plaintiffs,


R. W. ELLIOTT et al., Defendants.
Civ. A. No. 2657.

(132 Federal Supplement)
United States District Court
E. D. South Carolina,
Charleston Division.

July 15, 1955.

Action against board of trustees of school district for declaratory judgment

and injunctive relief. The District Court, Per Curiam, held that equal protections clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals.

Judgment accordingly.

1. Constitutional Law 220

State may not, either directly or indirectly, deny to any person on account of race the right to attend any school maintained by such state.

2. Constitutional Law 220

If schools maintained by state are open to children of all races, no violation of equal protection of laws is involved, even though children of races voluntarily attend different schools. U.S.C.A.Const. Amend. 14.

3. Constitutional Law ~220

Equal protection clause of constitution does not require integration of schools, but merely forbids discrimination, and does not forbid such segregation as occurs as result of voluntary action. U.S.C.A.Const. Amend. 14.

4. Constitutional Law 209

Equal protection clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals. U.S.C.A.Const. Amend. 14.

Thurgood Marshall, New York, N. Y., Harold R. Boulware, Columbia, S. C., for plaintiffs.

S. E. Rogers, Summerton, S. C., Robert McC. Figg, Jr., Charleston, S. C., for defendants.

Before PARKER and DOBIE, Circuit Judges, and TIMMERMAN, District Judge.


This Court in its prior decisions in

this case, 98 F.Supp. 529; 103 F.Supp. 920, followed what it conceived to be the law as laid down in prior decisions of the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, that nothing in the Fourteenth Amendment to the Constitution of the United States forbids segregation of the races in the public schools provided equal facilities are accorded the children of all races. Our decision has been reversed by the Supreme Court, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 757, which has remanded the case to us with direcjon "to take such proceedings and enter ach orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases".

Whatever may have been the views of

this court as to the law when the case was originally before us, it is our duty now to accept the law as declared by the Supreme Court.

[1-4] Having said this, it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they ttend. What it has decided, and all that has decided, is that a state may not deny to any person on account of race the right to attend any school that it

maintains. This, under the decision o the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution

or in the decision of the Supreme Court choose the schools they attend. The Contakes away from the people freedom to stitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individuals.

The Supreme Court has pointed out that the solution of the problem in accord with its decisions is the primary responsibility of school authorities and that the function of the courts is to determine whether action of the school authorities constitutes "good faith implementation of the governing constitutional principles". With respect to the action to be taken under its decision the Supreme Court said:

"Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from 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 nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racial

ly nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

"The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."

The Court is convened to hear any concrete suggestions you may have to make as to the decree that it should enter.


This cause coming on to be heard on the motion of plaintiffs for a judgment and decree in accordance with the mandate of the Supreme Court, and the Court having carefully considered the decision of the Supreme Court, the arguments of counsel, and the record heretofore made in this cause:

It is ordered that the decree heretofore entered by this Court be set aside and, in accordance with the decision and mandate of the Supreme Court, it is ordered, adjudged and decreed that the provisions of the Constitution and laws of the State of South Carolina requiring segregation of the races in the public schools are null and void because violative of the Fourteenth Amendment to the Constitution of the United States, and that the defendants be and they are hereby restrained and enjoined from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such school on a non-discriminatory basis with all deliberate speed as required by the decision of the Supreme ourt in this cause.

It is further ordered that this cause be retained on the docket for the entry of further orders herein if necessity for same should arise.


Sarah Mae FLEMMING, Appellant,




No. 6995.

(224 F. 2d 752)

United States Court of Appeals
Fourth Circuit.
Argued June 21, 1955.

Decided July 14, 1955.

Action by Negro woman against bus company for damages on account of bus driver's requiring her to change her seat in accordance with South Carolina

segregation law. The United States District Court for the Eastern District of South Carolina, G. B. Timmerman, J., 128 F.Supp. 469, dismissed action, and plaintiff appealed. The Court of Appeals held that District Court had jurisdiction of action under Civil Rights Act.

Reversed and remanded.

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Philip Wittenberg, Columbia, S. C., and Robert L. Carter, New York City (Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., on brief), for appellant.

Frank B. Gary and Frank K. Sloan, Columbia, S. C. (Paul A. Cooper, Columbia, S. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM.

This is an action for damages brought by a Negro woman against a bus company because the driver of the bus required her to change her seat in accordance with the segregation law of South Carolina applicable to motor vehicle car

riers, South Carolina Code 1952, §§ 581491 to 58-1496, which she claimed to be Amendment to the Federal Constitution. violative of her rights under the 14th There was no diversity of citizenship, and defendant challenged the jurisdiction of the court to entertain the action under the Civil Rights Acts, 42 U.S.C.A. §§ 1981, 1983 and 28 U.S.C. § 1343(3). The trial judge, without discussing the question of jurisdiction, dismissed the case on the ground that state statutes complained of were valid under the decision of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. See Flemming v. South Carolina Electric & Gas Co., D.C., 128 F.Supp. 469. The correctness of that ruling as well as the question of jurisdiction are presented by the appeal.

[1] We do not think that the separate but equal doctrine of Plessy v. Ferguson, supra, can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.Ed. 884, which relate to public schools, leave no doubt that the separate but equal doctrine approved in

Plessy v. Ferguson has been repudiated. That the principle applied in the school cases should be applied in cases involving transportation, appears quite clearly from the recent case of Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination. The argument that such segregation can be upheld as a proper exercise of the state police power was answered in the case of Dawson v. Mayor and City Council of Baltimore City, 4 Cir., 220 F.2d 386, 387, where with respect to segregation in recreational centers we said:


it is obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bath-house facilities, the use of which is entirely optional."

[2, 3] We think that there can be no question as to the jurisdiction of the court. Under 28 U.S.C. § 1343(3) the District Courts are given jurisdiction of actions to redress the deprivation, under color of any state law, of any right, priv

ilege or immunity secured by the Constitution of the United States or by any act of Congress providing for equal rights of citizens. The equal protection of the laws is guaranteed by the Fourteenth Amendment to the Constitution and by 42 U.S.C.A. § 1981, and liability for deprivation of such right is provided by 42 U.S.C.A. § 1983. Plaintiff's contention is that the defendant corporation, acting under color of state law, denied plaintiff her rights as secured by the Constitution and statutes, in that its driver, acting in accordance with state law, enforced the state segregation statutes against her and required her to change her seat. It is argued that, since the driver is made a police officer of the state by section 58-1494 of the South Carolina Code, his action is not attributable to the defendant; but we think it clear that he was acting for the defendant in enforcing a statute which defendant itself was required by law to enforce. See Code 58-1491. He was thus not only acting for defendant, but also acting under color of state law.

The decision appealed from will be reversed and the case will be remanded for further proceedings not inconsistent herewith.

Reversed and Remanded.


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