Reprinted with permission from The United States Law Week, Vol. 18, No. 39, p.3277 (April 11, 1950). Copyright 1950 by The Bureau of National Affairs, Inc. (800)372-1033)


Racial "Segregation" Attacked

Supreme Court hears attack on separate but equal doctrine; validity of Plessy v. Ferguson challenged; Fifth and fourteenth Amendments as barring separation based on race.

Attacks on the "separate but equal" doctrine as related to racial segregation were made in three cases heard by the Supreme Court last week. The Attorney General and the Solicitor General of the United States opened the fight to overturn the rule enunciated in Plessy v. Ferguson, 163 U.S. 537. They appeared in the case of Henderson v. United States, No. 25, which involves segregation in a railroad dining car, but the Justice Department also filed briefs as amicus curiae in the other two cases dealing with the right of Negroes to attend state universities' law schools, McLaurin v. Oklahoma State Regents, No. 34, and Sweatt v. Painter, No. 44.


Attorney General McGrath argued that the Constitution does not permit enforcement of racial segregation by law. Attacking the separate but equal doctrine, he asserted that singling out the colored race "is in itself discriminatory." Segregation is intended to signify inequality, continued the Attorney General, who looked upon the barrier in the dining car as a "ceremonial," an imposition of legally enforced case status. Few things could be more humiliating than to be tagged publicly as inferior.

Unless segregation is ended, Attorney General McGrath felt that a serious blow will be struck at our democracy before the world.

Conceding that no act of Congress and no decision of the Supreme Court can eradicate the evil of racial prejudice, the Attorney General pointed out that "ways of thinking and behavior are at least partly shaped by the rules of conduct prescribed by law as interpreted by the Court. Your decision can and may give rigidity and respectability to barriers which have their root in prejudice and thereby solidify these barriers or your wisdom may to a large degree undermine these barriers and bring them into disrepute."

Solicitor General Perlman followed the Attorney General and gave a detailed statement of the background of the case.


The regulation involved is the fourth adopted by the Southern Railway in an endeavor to meet the problem. The appellant in the case was a passenger from Washington to Birmingham, Alabama. After the train left Washington, he went to the diner. White people were seated at the Jim Crow table. The appellant was told to come back later, which he did, but at no time was he able to obtain service. However, he was told that he could be served in his own stateroom.

Mr. Perlman then gave the history of the litigation through the ICC and the courts and explained in detail the various regulations adopted by the railroad and approved by the Interstate Commerce Commission.

At this point, the Solicitor General alluded to certain exhibits in the record showing that the railway justified the reservation of one of the tables for the Negroes in the dining car by making a count of the Negroes who presented themselves for service. The allocation, he said, was made on that basis. That percentage may be correct, Mr. Perlman argued, but the record does not show how many Negroes traveled on the railroad and the count was made in the presence of regulations which segregate Negroes. No Proper inference, he concluded, can be drawn from such a tabulation.

Mr. Perlman stated that segregation, however practiced, is a violation of the Constitution of the United States. Moreover, he continued, Section 3 of the Interstate Commerce Act Prohibits segregation on railroads. This provision was emphasized in the Mitchell case, 313 U.S. 80, where the Supreme Court held that a railroad regulation denying accommodations to a colored member of Congress was not justified by that Act.

At this point, Mr. Justice Frankfurter asked, "You are contending that this violates the statute?"

Mr. Perlman: "Yes."

Mr. Justice Frankfurter: "If we agree with you as to that, do you think we should decide the constitutional point?"

Mr. Perlman: "Yes, your Honor, or we would not have asked you."

Mr. Justice Frankfurter: "Why?"

Mr. Perlman: "Because of the seriousness of the question as shown by this case and the other cases."

Mr. Justice Frankfurter then made the point that the Court should not decide the constitutional issue if it finds that the regulation violates the Act. However, Mr. Perlman made the further point that if the lower court's decision finding the regulation not violative of the Act were affirmed, then the Court would be faced with the constitutional question, and Mr. Justice Frankfurter agreed.


The Solicitor General then described the regulation as a "belt drawn through the country with official sanction." He called upon the Court to reexamine Plessy v. Ferguson, stating that there may have been good reason then to adopt a separate but equal doctrine.

Chief Justice Vinson: "There certainly couldn't be any more basis in law now than then."

Mr. Perlman agreed, but explained that it is understandable how the court could reach such a decision then "when they were closer to slavery and the full significance of its effect could not be seen."

Mr. Justice Reed then inquired whether the Interstate Commerce Act provision applied to this type of discrimination and Mr. Perlman answered affirmatively, stating that the Court had so held the Mitchell case. In response to another question as to whether Mitchell involved only equal facilities. Mr. Perlman elaborated on the holding in that case.

Mr. Justice Reed: "What about Morgan v. Virginia [328 U.S. 373, 14 LW 4395]?"

Mr. Perlman replied that it had not much to do with the case and pointed out that neither did Hall v. DeCuir, 95 U.S. 485. However, the Solicitor General asserted that the regulation is a burden on interstate commerce. he pointed out that in Hall v. Decuir, where Louisiana prohibited segregation, it was held to be a burden and in Morgan, where Virginia required segregation, it was held to be a burden.

Mr. Justice Reed: "Were equal accommodations offered in Morgan?"

Mr. Perlman: "I think they were."

Mr. Perlman explained that Morgan turned on the fact that 18 states had prohibitions against discrimination and 10 states had provisions for segregation.


Mr. Perlman then argued that experience has shown that equal facilities cannot be provided. Segregation itself violates the Act and the Fifth Amendment. He urged that Mr. Justice Harlan's dissent in Plessy v. Ferguson is correct. It truly reflects the intention of the Constitution and truly reflects the rights of all citizens to be treated as equals. Mr. Perlman viewed the cases decided since Plessy as assuming that the separate but equal doctrine was correct. Plessy has never been analyzed and reaffirmed.

Belford V. Lawson, Jr., appeared for the appellant and stated that the appearance of the Attorney General and the Solicitor General is "encouraging to all of us who have lived under the iron heel of the proconsul of Jim Crow." He emphasized the roped-off table and described it as a remnant of slavery and a bade of inferiority.

Mr. Lawson pointed out that the Plessy case was a serious departure from Railroad v. Brown, 84 U.S. 443; Strauder v. West Virginia, 100 U.S. 303, and other cases decided before it and differed as well from decisions decided subsequently. But for the doctrine of separate and equal, based on race, the Government would clearly be violating the Constitution, according to Mr. Lawson. Mr. Lawson then pointed out that the Court held in Mitchell that the denial of equality was a violation of the Interstate Commerce Act.


Mr. Justice Frankfurter: "What you are saying is that the case is ruled by Mitchell."

Mr. Lawson: "That is right. We go one step further."

Mr. Justice Frankfurter: "You don't have to go one step further."

The Associate Justice then stated that if the lawyer was right, "this is within Mitchell," and Mr. Lawson explain that "We want to go one step further."

Mr. Justice Frankfurter again pointed out that the Court should avoid the constitutional issue, if possible.

Later. Mr. Lawson stated that it would by a Pyrrhic victory if the Court does not decide the constitutional question. Individuals are free to engage in prejudice but a carrier is not. This Court must face the practical question, Mr. Lawson continued, since colored people all over the world are suspect of democracy in the United States.

Mr. Jawn Sandifer then continued the argument. He pointed out that there are million s of Negro Americans who get real hope from the Government's action in appearing for Henderson. His argument to the Court was interrupted by the expiration of the time allotted.


Mr. Allen Crenshaw, for the Interstate Commerce Commission, indicated that he was "somewhat embarrassed." He pointed out that the ultimate question was not segregation but whether the ICC order is lawful and valid. Every argument overlooks that, he continued. All the Commission looked for and all the Act requires, according to Mr. Crenshaw, is that equal service be furnished and that is what the ICC found. the Act neither required nor prohibits segregation in interstate travel and the ICC neither required nor prohibits it. Racial separation is left to the judgment of the carriers, Mr. Crenshaw continued.

Moreover, Mr. Crenshaw felt it obvious that congress does not believe that either a provision for or against segregation is required. Congress is the proper source of reform in this field, asserted Mr. Crenshaw, who state that he was convinced that "when people want it done, it will be done. That is the process of democracy."

In response to a question about the language of Section 3 of the Interstate Commerce Act, Mr. Crenshaw stated that it simply prohibits any undue discrimination. If there is any unequal treatment then it is violated.

Several questions involving the legislative history of the 1940 amendments to the Interstate Commerce Act were then asked. Mr. Crenshaw reiterated that the Commission was obedient to the will of Congress as expressed in the Interstate Commerce Act. The separate but equal doctrine is not here, Mr. Crenshaw continued, and should be presented to Congress as the legislative authority.


Then Mr. Crenshaw pointed out that congress has refused on 25 occasions to pass a bill abolishing segregation and interpreted such refusal to mean that congress did not wish to abolish segregation. However, it was pointed out from the Bench that Congress' action is also consistent with a contention that a provision prohibiting segregation was already in the statue, and a Justice quipped: "There are more reasons for refusing to pass a bill than for denying certiorari."

Mr. Justice Frankfurter then inquired as to Henderson's status in the suit in view of the change in the railroad's rule, and Mr. Crenshaw stated, "He is the vehicle."

Mr. Justice Frankfurter: "What is his constitutional status?"

Mr. Crenshaw: "He got the rule changed."

Mr. Justice Frankfurter: "Suppose there is some rule on the Southern that discriminates, can I start a proceeding?"

Mr. Crenshaw: "No, you can't maintain the suit."

Mr. Justice Frankfurter: "Is Henderson in the same position?"

Mr. Crenshaw: "I hadn't thought of it in that way but you could look at it like that."

Mr. Justice Black's concurrence in the Morgan decision was adverted to by Mr. Crenshaw as supporting the Commission's position.


For the Southern Railroad, Mr. Charles Clark presented the argument. He phrased the issue as: "Is segregation per se violative of the law?"

Mr. Justice Reed and Mr. Justice Frankfurter queried Mr. Clark as to Henderson's status in the suit in view of the fact that the suit was instituted under a rule which was subsequently rewritten. It was finally agreed that the 1946 rule is the one at issue.

Mr. Clark supported separation and emphasized the duty of the railroad to maintain peace and order. If it doesn't, the railroad can be sued. Surely it can't sit idly by without protecting its passengers.

Mr. Clark relied on Hall v. DeCuir, Plessy v. Ferguson, and sought to show that Mr. Justice Harlan's opinion in Cummings v. Board of Education, 175 U.S. 528, differs from his dissent in the Plessy case. He also discussed the Chiles case, 218 U.S. 71, and the Morgan Case. Mr. Clark pointed out that in Morgan a state statute was struck down. The state, he emphasized, can't burden interstate commerce, but the railroad and Congress can.

Although Judge Soper, sitting as a member of the three-judge court which decided the issue herein, dissented, Mr. Clark alluded to his opinion in the Day case (171 F.2d 39, 17 LW 2273), since decided, which upheld segregation with equal facilities in a transportation case.

The railroad's counsel then asked: "What has Congress done for the seventy years it has known of the ruling in Hall v. DeCuir?" and asserted that no law affecting the subject had been passed.

Chief Justice Vinson: "When the 1940 Transportation Act was under consideration, was it limited to non-controversial questions?"

Mr. Clark: "I don't know of it."

The Chief Justice: "I think it was and segregation might be considered controversial."


Mr. Clark then said that the only possible way Henderson and the Government get any constitutional issue is to bring up the Fifth Amendment which protects the citizens against acts of the Federal Government which protects the citizens against acts of the Federal Government.

Mr. Justice Frankfurter: "Suppose Congress had written into the 1940 Transportation Act an anti-segregation provision and the railroad had a regulation that is before us and someone asked for it to be set aside and the Commission refused on some basis, would a cause of action lie?"

Mr. Clark: "Yes."

Mr. Justice Frankfurter: "Now the argument is that the Fifth Amendment writes that into the Act."

Mr. Clark: "That is what they say but I disagree. It has no foundation because the Fifth Amendment is not here. We rely on 70 years of decisions applying this very statute and the fact that congress has refused to enact these laws."

The very Congress that adopted the Fourteenth Amendment was at the same time passing legislation enacting separate facilities in the District of Columbia schools, Mr. Clark pointed out. He found no basis for a constitutional question.

congressman Hobbs, a member of the House Judiciary Committee, also argued in support of the Interstate Commerce Commission. He criticized the Solicitor General and the Attorney General for appearing in the case "fighting a coordinate branch of the Government." The Constitution, according to Congressman Hobbs, gives the right to regulate interstate commerce to Congress. He, too, noted Judge Soper's opinion in the Day case and what he described as Justice Harlan's change of mind in the Cummings Case.

Congressman Hobbs described the people seeking to upset the separate but equal doctrine as "impatient reformers." He stated: "they can't wait for the mills of the gods to grind slowly and small. they admit almost that they are out of court - but there is a necessity to get a decision now. That is but the fitful fever of reformers who have a passion for immediacy."

Congress has the sole and exclusive power to regulate interstate travel, Mr. Hobbs asserted, and he felt that there can be no question that when Congress has refused on 27 occasions, 14 times recently, to enact an anti-segregation rule in transportation, that Congress hasn't required it.

[18 LW 3279]


In the first of the law school cases, involving G.W. McLaurin and the University of Oklahoma, Mr. Robert L. Carter began the argument with an explanation of the facts of the case. He asserted that McLaurin met all requirements except that he was colored. As Mr. Carter began the early history of the case, he was queried as to whether the situation had changed and replied that it had, as was shown by Oklahoma's brief. The policies currently in effect at the University of Oklahoma Law School were then set forth. McLaurin and other colored students are assigned regular seats in a designated row of each classroom. They have full access to the University law library and have assigned for their use a designated table, and also take their meals at the campus cafeteria and are assigned a special table or tables.

Mr. Justice Frankfurter: "There are no railings?"

Mr. Carter: "None. It was taken down. They can use the library and cafeteria but at a segregated table."

Mr. Frankfurter: "You accept those statements as to the changed conditions?"

Mr. Carter: "We do not controvert them."

Mr. Carter then alluded to the case of Takahashi v. Fish & Game Comm., 334 U.S. 410, 16 LW 4528. That case has developed a doctrine that distinctions based on race and color are unconstitutional. The Fourteenth Amendment was adopted, according to Mr. Carter, to protect Negroes from state action. This proposition was recognized in the Shelley Case, 334 U.S. 1, 16 LW 4426, and Strauder v. West Virginia. The equal protection clause was intended to make certain that all persons would be treated alike by the state.


Mr. Justice Frankfurter: "There isn't any argument that the content of the education he gets isn't the same?"

Mr. Carter: "No controversy."

Mr. Justice Frankfurter: "It is simply the physical seating."

Mr. Carter: "The state has set him apart."

Mr. Justice Black: "Are those rules enforced that way now?"

Mr. Carter explained that while there are no signs, the Negro students must conform to the rules and are required to sit in certain seats. Mr. Justice Frankfurter commented that when the litigation started the question was quite different and Mr. Carter agreed.

Mr. Carter continued that the rules and regulations apply only to Negroes, the only students who are segregated are Negroes. "We are objecting that they are picked out and given certain seats in a certain row. White students are free to sit where they please."

Chief Justice Vinson and Mr. Carter then discussed the exact method of seating in the class, and Mr. Carter referred the Chief Justice to the state's brief, stating that "We think our position meets any regulation assigning seats so long as the regulation is because of race, we say they are invalid." Another question was asked as to whether white students were assigned seats too and Mr. Carter pointed out that the state admitted that Negroes were the only ones assigned seats.


After considerable discussion of the factual situation confronting the Court, Mr. Carter brought up the Plessy case. His position was that Plessy is not only bad law but not even applicable. It applied to equal facilities in transportation and did not lay down a general principle. In the field of education, he continued, this Court has not upheld segregation.

Also appearing for McLaurin was Amos T. Hall, of Oklahoma. He controverted the contention that no humiliation was intended by the separation. he also pointed out that although the state contends that public policy requires the regulations which it has imposed, the public policy stems from the police power and there has been no disorder or hostility to McLaurin. The state's policy places a burden of inferiority on McLaurin. As to the state's contention that 1600 negro teaches will be thrown out of work if the state's policy is overthrown, Mr. Hall asserted that experience has shown this not to be true.

For Oklahoma, First Assistant Attorney General Fred Hansen presented the argument. he pointed out the dilemma which the state school authorities found themselves in when they were required by state law to provide segregated education for Negroes. The legislature was appealed to supply funds to construct facilities for negroes but refused to do so. Thereafter, the school authorities divided classes by putting Negroes in the left row.

Mr. Hansen said: "That necessarily assigned the remainder to white students. That is how it is functioning now."

Mr. Justice Clark: "Do you have a copy of the regulations?"

Mr. Hansen: "No, I do not."

Mr. Justice Frankfurter: "This is what was done, but there are no documents?"

Mr. Hansen: "That is correct. I do have a letter but it is not formal. Regulations have been adopted by the Regents," Mr. Hansen explained, and what has been stated "is the unwritten regulation."

Mr. Justice Burton: "How were the policies made known to McLaurin?"

Mr. Hansen: "I really don't know. He follows them. There has been no difficulty."

Mr. Justice Minton then stated that when a policy of segregation has broken down to this extent, "there isn't much point to segregation, is there?"

Mr. Hansen: "Not possibly on the graduate's level."

Mr. Hansen then argued that if separate but equal is thrown out, financial hardship would be imposed on Oklahoma since all the colored public schools would fall including Langston University, a colored university.

Mr. Justice Jackson: "When segregation breaks down as it has in Oklahoma, what purpose can it serve in this school before us?"

Mr. Hansen replied that "if these students hadn't been segregated, we might have had trouble."

Chief Justice Vinson: "This policy is just sort of an out for the officials under the statutes of Oklahoma."

Mr. Hansen agreed, stating: "That is the best they could do." He assured the Court that these officials are thoughtful men and good men, doing the best they can under difficult circumstances.


In referring to the assignment of seats, Mr. Hansen denied any intention to make a play on the word "assigned." He recognized that the school authorities wanted to segregate white and colored but maintained that the policy is not one of humiliation. He also asserted that the demand for segregation is disappearing and pointed out that the cost of maintaining segregated schools would help solve the problem.

The Assistant Attorney General called for enforcement of Plessy v. Ferguson and quoted from the opinion. He also pointed out that at the time the Fourteenth Amendment was adopted Congress was providing for segregated education in the District of Columbia.

On rebuttal, Mr. Carter pointed out that what was being sought in this case is the right to be treated the same and stated that that "is more important than any financial consideration." Moreover, he argued, the state actually admits that segregation at a graduate school level is unnecessary. "That is our case." Education, he concluded, is more than physical facilities.


Mr. W.J. Durham, of Texas, opened the argument in the Sweatt case. He gave a brief history of the litigation which began with the denial of Sweatt's application for admission to the University of Texas Law School. On Sweatt's petition for mandamus seeking admission to the Texas law school, the district court entered judgment declaring that the equal protection of the laws have been denied him. However, the court did not grant the writ but gave the authorities six months to provide a course of legal instruction "substantially equivalent." Thereafter, a second hearing was held and the petition was dismissed on the ground that "substantially equivalent" facilities had been provided. In 1947, the judgment of the trial court was set aside and remanded and in May, 1947, a trial on the merits was held. Judgment was entered for the school authorities and the petition was dismissed. This decision was affirmed by the Court of Civil Appeals, and the Supreme Court of Texas denied application for a writ of error.


Thurgood Marshall, of New York, continued the argument. He pointed out that the issue of separate but equal was raised right from the beginning of the case. At each state, he said, "we raised the question that an attack was being made on segregation laws as applied to deny Sweatt's admission to the University of Texas. Sweatt testified that he would not attend any law school so long as it was segregated. Now, Texas argues that they were relying on decisions of the Supreme Court in that they didn't put in any evidence to justify the reasonableness of this statute."

With references to the supplying of a new law school, Mr. Marshall stated: "They can build an exact duplicate but if it is segregated, it is unequal." It is most peculiar, he continued, that the Attorney General of Texas in the lower court trial said that the "basement law school" at Austin was better than the University of Texas. Then after winning in court, they built a new one (the new law school for Negroes at Houston). If the new school is so superior, he continued, the white students have cause for complaint. Mr. Marshall stated that what will happen in the common schools and in swimming pools, is not involved in this case which seeks only the admission of a qualified Negro applicant to a law school.


Suppose Sweatt is admitted and some students didn't want to admit him, they can covenant among themselves to let him alone, Mr. Marshall continued. There would be nothing wrong. "We want to remove governmental restriction - if they want to, they can keep their prejudices."

Mr. Marshall also called attention to the fact that Texas has an integrated bar. All lawyers are admitted. There is nothing in the law requiring segregation. "Why can't they study law together?" asked Mr. Marshall. Mr. Marshall also stated that he resented the attempt to compare hoodlums in St. Louis with what law students will do.

The threats of unlawfulness were discounted by Mr. Marshall. The same threats were made regarding primaries in Texas but now Negroes vote and there is no trouble. Mr. Marshall stated that his position was that there is no rational relationship between races and public education. Education is not a privilege, he asserted, but is a foundation of all our rights. Texas recognized this and spend tremendous sums of money and keeps minute control over it.

Mr. Marshall stated that if it were not for Plessy no one would have any difficulty with these cases because subsequent cases have made it clear that classifications based on race are odious.

Argument for Texas was opened by Price Daniel, Attorney General for the State. He argued that the Supreme Court has already decided the reasonableness of the classifications made. Mr. Marshall has been arguing a policy, he continued. This Court has said that that is up to the legislature. He posed the question as whether the state, which is under no obligation to furnish education, can furnish separate facilities to whites and Negroes. The question, he continued, is whether the Court is going to overrule its previous decisions. he would not concede that the question is limited to graduate schools

Mr. Daniel explained that neither whites nor Negroes want to cross the line that has been drawn. It isn't hatred and prejudice, he explained. He then alluded to the request of the Federal Council of churches to file an amiss brief and noted that he declined to consent to it since churches affiliated with that organization maintained separate churches in the South while preaching non-segregation.


Separate schools have been upheld in many northern states, the Attorney General continued, until the people felt both races were best served by having them together. Sweatt would have you disregard segregation altogether, the argument continued, but those who have studied this problem know that in certain states it is necessary to have separate facilities.

Mr. Daniel then described the Houston Law School which has been constructed in order to provide equal facilities for negroes. It has a fine building, a five-man faculty, 23 students, and a good library, and have received approval.


Joe R. Greenhill, First Assistant Attorney General of Texas, followed Mr. Daniel. He gave historical review of the Fourteenth Amendment, explaining how it followed the Civil Rights Act of 1866 and was not supposed to go any further than that Act did. The Fourteenth Amendment was prepared by a committee of 15, and there is nothing in the committee reports to show that they intended anything more than the 1866 Act. Many broader amendments were considered but rejected.

In the meantime, his study revealed, while this was being considered, Congress provided for separate schools in the District of Columbia. Mr. Greenhill, continuing his discussion, cited evidence to show that mixed schools were never an objective of the framers of the Fourteenth Amendment, and that the states which adopted it did not interpret it to "required mixed schools."

Mr. Marshall in closing stated that either conclusion could be drawn from the history of the Fourteenth Amendment. However, he contended that when it provided for equality it meant equality in its normal context.