The Supreme Court In Conference December 12, 1953

NOTES OF JUSTICES CONCERNING THEIR CONFERENCE DISCUSSIONS IN THE CASE OF BROWN et al. v BOARD OF EDUCATION OF TOPEKA

Conference of December 12, 1953

[From the notes of Burton and Douglas]

CHIEF JUSTICE WARREN: The previous plan was to discuss these cases informally in view of their importance, and that no vote be taken at this time. I favor that idea of delay-there is great value in unanimity and uniformity, even if we have some differences.

We are now down to the point of deciding the issues. Ben Franklin at the constitutional convention. I do not yet know what we should do. I am for pooling all of the humble wisdom of the Court and having, perhaps, many discussions. We should decide it this term. I have read as much as time allows, and I was much interested in the oral arguments. The case was well argued, and the federal government was very frank in its brief and orally, I can't escape the feeling that the Court has finally arrived at the place where we must determine whether segregation is allowable in public schools.

The thing that concerns me is whether we are called upon to overrule our older cases and lines of reasoning. The more I read and hear and think, the more I come to conclude that the basis of the principle of segregation and separate but equal rests upon the basic premise that the Negro race is inferior. That is the only way to sustain Plessy. I don't see how it can he sustained on any other theory. If we are to sustain segregation, we must do it on that basis. If oral argument proved anything, the arguments of Negro counsel proved that they are not inferior. I don't see how we can continue in this day and age to set one group apart from the rest and say that they are not entitled to exactly the same treatment as all others. To do so is contrary to Thirteenth, Fourteenth, and Fifteenth Amendments. Those amendments were intended to make those who were once slaves equal with all others. That view will perhaps cause trouble, but personally I can't see how today we can justify segregation based solely on race and so forth.

I recognize that the time element is important in the Deep South, We must act, but we should do it in a tolerant way. It would he unfortunate if we had to take precipitous action that could inflame the issue more than necessary. The conditions in the extreme South should be carefully considered by the Court. Kansas and Delaware are not much different from California---500,000 Negroes, 100,000 Japs, 100,000 Chinese. But not so in the Deep South. It will take all the wisdom of the Court to do this with a minimum of commotion and strife. How we do it is important. At present, my instincts and tentative feelings would lead me to say that in these cases we should abolish, in a tolerant way, the practice of segregation in public schools.

REED: I can understand Warren's attitudes. I am trying to approach this question without past prejudices. I want to work this out in the best way. I am not sure whether I will sit in the South Carolina or Virginia cases, but I may. If writing on clean slate, I probably would say that they should have segregation. It is an unfortunate thing. Each of us can accept it personally, but this is not the problem. I also recognize that this is a dynamic Constitution, and what was current in Plessy might not be current now. The power of the states is an issue. I would leave states with complete power in the Briggs case, etc. Some states have put it into law and some have abolished it in their own way. But here, it is an issue of the Fourteenth Amendment. Equal protection has not been satisfactory. The result has been less facilities, etc. for Negroes. Equal opportunity has not been enforced. I can't say that there has been a denial of equal protection as it looks, although in fact it has not been equal (District of Columbia-not under that.) Children may be forced to separate without a violation of the equal protection clause, It is not a denial of liberty to say that people must separate to go to school.

Segregation is not done on a theory of racial inferiority, but on racial differences, It protects people against the mixing of races, The argument was not made here that the Negro is an inferior race. Of course there is no “inferior race” although they may be handicapped by a lack of opportunity, but on equal protection, they demonstrably have equal protection. It is a police power that has been exercised. Its purpose has been to maintain a policy status. Growth is toward the ending of segregation.

BURTON: Reed refers to an editorial in the Atlanta Journal Constitution. If segregation is bad, it is because of a denial of due process. You have to go to due process. There is not much deference. It is a question of reasonable classification. That brings forth the historical question. There has been a contemporary interpretation of the problem since the Fourteenth Amendment. Look at the administrative construction at the time of the adoption of the Fourteenth Amendment, and at the contemporaneous approval of segregation. People were familiar with it at first hand. The practice has been constantly the other way, and has long sanctioned segregation. The existence of early school segregation statutes was contemporaneous with the Fourteenth Amendment.

Congress never could pass the integrated schools laws. Integration was never written in, and separated schools existed-and equal services. Long Gum [sic] said that it was valid to have separate schooling. Congress has had the power to end segregation in the District of Columbia. The President has had the power to end segregation in the armed forces.

Those efforts failed, so they come to the courts and ask this Court to say it was or has become unconstitutional. They left aside the immediate aspects, and so wait to see what this Court does. This is not a political question, but we should not move to change the law. If there is to be a change, Congress should do it.

FRANKFURTER: One has to curb one's tongue when dealing with such problems. I would put no time limit on when the decision should come down. The awful thing about the Insular Cases was not too many opinions (two hundred pages), it is that they looked in too many directions. This is among my chief concerns. These cases raise this question because the "due process" clause puts on this Court a burden that no court should have.

Other nations have not put a due process clause into their constitutions, including Austria, Ireland or India. We cannot escape the statesmanship issue, but this is not our job. We are kind of a trustee of due process. As a pure matter of history, in 1867 the Fourteenth Amendment did not have as its purpose to abolish segregation. The due process and equal protection clauses certainly did not abolish segregation when the Fourteenth Amendment was adopted. The most that the history shows is that the matter was inconclusive. A host of legislation passed by Congress presupposes that segregation is valid. A host of legislation and history in Congress and in this Court indicates that Plessy is right.

What did the leaders intend? You can't imprint all views on it. District of Columbia legislation and also federal legislation was based on the assumption of segregated school" as in the national school lunch acts and so forth, as late as 1950. We must not be self-righteous and "God Almighty" when writing this. (Goldberg says that the question "is settled"·-we should not say that.) History speaks clearly, and the question arises-does history determine this question?

In 1922, the Court said that free speech was not protected by the Fourteenth Amendment, and last Term we said the opposite. Holmes said that the Fourteenth Amendment did not make all states alike. Joseph McKenna said well, "time works changes." Principles must be capable of another application than this version, and that gives it best. Psychological changes, and that is what this is about.

DOUGLAS: On the four state cases, I would join Earl Warren's conclusion and his reasons. History does shed a mixed light on it. In this day and age, race and color can't now be salient. Don't try to anticipate too much. We should recognize that adjustments will have to arise. The Court this Term is deciding its principles. It is a simple problem. Race and color cannot be a constitutional standard for segregating the schools. In the District of Columbia case there is a different problem (and Hugo Black is probably of the same view.) That complaint is for a declaratory judgment on the basis that segregation in the District of Columbia is mandatory. But I have doubts that it is mandatory. I would send the District of Columbia case back to the court of appeals to determine whether the statutory system in the District of Columbia is mandatory or permissive. I would let them have further time on that.

JACKSON: Cardozo said that much of constitutional interpretation is partly statutory construction and partly politics. This is a political question. To me personally, this is not a problem. But it is difficult to make this other than a political decision. Lincoln was not quoted in the NAACP's argument-he was extremely limited in his objectives. It is pure hypocrisy to say that there was strong feeling on this issue at that time. There is not much legislative history. We don't have custom or precedents against segregation in education.

Education at the time of the Fourteenth Amendment was not an issue. The precedents and custom are for segregation. I don't know how to justify the abolition of segregation as a judicial act.

If we have to decide this question, then representative government has failed. We would have to give advice to the lower courts. Some would put all boards of education in jail, and others would not give Negroes any relief. The problem is to make a judicial basis for a congenial political conclusion. I don't think it wise to just throw the abolition of segregation into the hopper, and leave the rest to another fight. We must go way beyond what the government has wanted. The resistance will be immeasurably increased by a flat and immediate doctrine, As a political decision, I can go along with it-but with a protest that it is politics.

BURTON: We have no choice in this matter but to act. I hope that we act this Term. We can work it out on a judicial basis. The problem is a judicial one. On the four state cases, I go on equal protection. Prior to the Fourteenth Amendment, states could do what they liked. Now they cannot. The Fourteenth Amendment problems have been a gradual development. There is a trend away from separation of the races in restaurants, the armed forces, and so forth. The Fourteenth Amendment is nationwide, and calls for uniform practices. You can't draw a line between types of schools-the same principle that is applicable to graduate school is equally applicable to primary school. At the time of the Fourteenth Amendment life was separate; now it is inadequate preparation for life today.

As to the District of Columbia, we must rest on due process. And due process is equal protection, for that is what the rest of the country requires. On the congressional statutes, the District of Columbia never made segregation mandatory, but only permissive.

I would go a long way to agree to put off enforcement for a while, and to give the district courts discretion.

CLARK: I am closer to this than anyone except for Hugo. I have lived with it. We can't handle this by a brief policy statement. There is a danger of violence if this is not well handled. In some communities it runs up to 60 percent colored in Mississippi, and Alabama is much the same. They can get their temper from Byrnes. He made a strong statement that he would just abolish the public schools. Violence will follow in the South. This is a very serious problem. If segregation is unconstitutional it must be handled very carefully, or we will cause more harm than good. I think that colored students in those get as good an education as the whites. Much progress has been made in voting there, to school boards, and so forth.

On relief, various conditions will require different handling. The option must to dictate that clearly. There must be no fiat, or look like a fiat that has to be done promptly. It should not only have something in it, but it should be done in such a way that will permit different handling to different places.

On the merits, I was surprised at the legislative history. I had always thought it obvious that one of the purposes of Fourteenth Amendment was to abolish segregation. But the history shows differently, and we can't use that. It is also almost unanswerable that the same Congress and the same legislators that passed the Fourteenth Amendment also recognized separate school I can't well say that Congress has ignored it. They did not do it because southern congressmen could not do anything in the District of Columbia that would integrate the District of Columbia. People couldn't vote to integrate here and then return home to the South. There was no disclosure of the vote.

JACKSON: There is no great loyalty to public schools in the South. There will be trouble when you send white children to colored schools and locations.

MINTON: Segregation is on its way out in Indiana. You can have a choice of schools. We did have segregated schools, hut not now. The population now is 10 percent Negroes.

CLARK: In Texas, several counties are predominantly Mexican, There is trouble with Mexicans and whites, and in the last few years they have been segregated in San Antonio and along the border. I don't like the system of segregation and will vote to abolish it, as I said before. Even though we can't rely on the legislative history. But the remedy must be carefully worked out, and some variations permitted to fit the trial courts.

MINTON: I don't discount the seriousness of this decision. There may be trouble in the offing, but I doubt it. Look at developments in the army with respect to segregation. The only justification for segregation is the inferiority of the Negro. So many things have broken down these barriers. Slavery went out with the Civil War. Then came the Fourteenth Amendment, which was intended to wipe out the badges of slavery and inferiority. The Slaughterhouse and Strouder cases say so-they establish a bundle of equal rights. The Fourteenth Amendment says equal rights, not separate but equal. Separate is a lawyer's addition to the language that came in by this Court. Our early cases indicated that these badges should be wiped out. Plessy v. Ferguson henceforth said separate and equal, and that laid down the new view. But Henderson and McLaurin greatly weakened Plessy. In those cases, we struck down segregation. Plessy v. Ferguson is a weak reed today. In the state cases, I would go on equal protection. I can't imagine a valid distinction based on color. I would go further in the District of Columbia and would apply due process.

You can't classify on the basis of color. It is also a freedom of choice, or liberty. On segregation today, it is a different world today than in the 18605 when they were just out of slavery. In the District of Columbia, the law amounts to a mandatory practice, whether or not it is mandatory in form. As to possible remedies, I am inclined to let the district courts have their heads in this matt.er, and not merely see our opinion.