 This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Sweat vs. Painter, an opinion of the United States Supreme Court. Decided on June 5th, 1950. Please note, this is a reading of the court's opinion only. For ease of listening, this reading omits legal citations and footnotes found within the text of the opinion. Mr. Chief Justice Vincent delivered the opinion of the court. This case, and McLauren vs. Oklahoma State Regents, present different aspects of this general question. To what extent does the Equal Protection Clause of the 14th Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the court. We have frequently reiterated that this court will decide constitutional questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly as possible. Because of this traditional reluctance to extend constitutional interpretations to situations or facts which are not before the court, much of the excellent research and detailed argument presented in these cases is unnecessary to their disposition. In the instant case, Petitioner filed an application for admission to the University of Texas Law School for the February 1946 term. His application was rejected solely because he is a Negro. Petitioner thereupon brought this suit for mandamus against the appropriate school officials' respondents here to compel his admission. At that time, there was no law school in Texas which admitted Negroes. The state trial court recognized that the action of the state in denying Petitioner the opportunity to gain a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the 14th Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the state to supply substantially equal facilities. At the expiration of the six months in December 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While Petitioner's appeal was pending, such a school was made available, but Petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court's judgment and ordered the cause remanded generally to the trial court for further proceedings without prejudice to the rights of any party to the suit. On remand, a hearing was held on the issue of the equality of the educational facilities at the newly established school as compared with the University of Texas law school. Finding that the new school offered Petitioner's privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the state to white students at the University of Texas, the trial court denied mandamus. The Court of Civil Appeals affirmed. Petitioner's application for a writ of error was denied by the Texas Supreme Court. Petitioner was granted certiorari because of the manifest importance of the constitutional issues involved. The University of Texas law school, from which Petitioner was excluded, was staffed by a faculty of 16, full-time, and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. The facilities available to the students were a law review, moot court facilities, scholarship funds, and order of the quaff affiliation. The school's alumni occupy the most distinguished positions in the private practice of the law and in the public life of the state. It may properly be considered one of the nation's ranking law schools. The Law School for Negroes, which was to have opened in February 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived, nor was there any full-time librarian. The school lacked accreditation. Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors, a student body of 23, a library of some 16,500 volumes serviced by a full-time staff, a practice court, and legal aid association, and one alumnus who has become a member of the Texas Bar. Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the state. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review, and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement, but which make for greatness in a law school. Such qualities to name but a few include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close. Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the state and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School. It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and prestige, which only a history of consistently maintained excellence could command, would claim that the opportunities afford him for legal education were unequal to those held open to petitioner. That such a claim, if made, would be dishonored by the state is no answer. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. It is fundamental that these cases concern rights which are personal and present. This court has stated unanimously that the state must provide legal education for petitioner in conformity with the Equal Protection Clause of the 14th Amendment and provide it as soon as it does for applicants of any other group. That case did not present the issue whether a state might not satisfy the Equal Protection Clause of the 14th Amendment by establishing a separate law school for Negroes. In State of Missouri, ex-Relatione Gaines versus Canada, the court, speaking through Chief Justice Hughes, declared that petitioner's right was a personal one. It was as an individual that he was entitled to the Equal Protection of the laws and the state was bound to furnish him within its borders facilities for legal education substantially equal to those which the state there afforded for persons of the white race, whether or not other Negroes sought the same opportunity. These are the only cases in this court which present the issue of the constitutional validity of race distinctions in state-supported graduate and professional education. In accordance with these cases, petitioner may claim his full constitutional right. Legal education equivalent to that offered by the state to students of other races. Such education is not available to him in a separate law school as offered by the state. We cannot therefore agree with respondents that the doctrine of Plessy versus Ferguson requires affirmance of the judgment below, nor need we reach petitioner's contention that Plessy versus Ferguson should be re-examined in the light of contemporary knowledge respecting the purposes of the 14th Amendment and the effects of racial segregation. We hold that the Equal Protection Clause of the 14th Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed and the cause is remanded for proceedings not inconsistent with this opinion. Reversed. End of Sweat versus Painter. An opinion of the United States Supreme Court. Terry versus Adams. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Terry versus Adams. An opinion of the United States Supreme Court decided on May 4th, 1953. Please note, this is a reading of the opinion of the court only. For ease of listening, this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Justice Black announced the judgment of the court and an opinion in which Mr. Justice Douglas and Mr. Justice Burton join. In Smith versus All Right, we held that rules of the Democratic Party of Texas excluding Negroes from voting in the party's primaries violated the 15th Amendment. While no state law directed such exclusion, our decision pointed out that many party activities were subject to considerable statutory control. This case raises questions concerning the constitutional power of a Texas County political organization called the Jaybird Democratic Association or Jaybird Party to exclude Negroes from its primaries on racial grounds. The Jaybirds deny that their racial exclusions violate the 15th Amendment. They contend the amendment applies only to elections or primaries held under state regulation that their association is not regulated by the state at all and that it is not a political party but a self-governing voluntary club. The district court held the Jaybird racial discriminations invalid and entered judgment accordingly. The Court of Appeals reversed, holding that there was no constitutional or congressional bar to the admitted discriminatory exclusion of Negroes because Jaybird's primaries were not to any extent state controlled. We granted certiorari. There was evidence that the Jaybird Association or Party was organized in 1889. Its membership was then and always has been limited to white people. They are automatically members if their names appear on the official list of county voters. It has been run like other political parties with an executive committee named from the county's voting precincts. Expenses of the party are paid by the assessment of candidates for office in its primaries. Candidates for county offices submit their names to the Jaybird committee in accordance with the normal practice followed by regular political parties all over the country. Advertisements and posters proclaim that these candidates are running subject to the action of the Jaybird primary. While there is no legal compulsion on successful Jaybird candidates to enter Democratic primaries they have nearly always done so and with few exceptions since 1889 have run and won without opposition in the Democratic primaries and the general elections that followed. Thus the party has been the dominant political group in the county since organization having endorsed every county-wide official elected since 1889. It is apparent that Jaybird activities follow a plan purposefully designed to exclude Negroes from voting and at the same time to escape the 15th amendment's command that the right of citizens to vote shall neither be denied nor abridged on account of race. These were the admitted party purposes according to the following testimony of the Jaybird's president. Question. Now Mr. Adams, will you tell me specifically what is the specific purpose of holding these elections and carrying on this organization like you do? Answer. Good government. Question. Now I will ask you to state whether or not it is the opinion and policy of the association that to carry on good government they must exclude Negro citizens. Answer. Well, when we started it was and it is still that way I think. Question. And then one of the purposes of your organization is for the specific purpose of excluding Negroes from voting isn't it? Answer. Yes. Question. I will ask you that is the reason you hold your election in May rather than in June or July. Isn't it? Answer. Yes. Question. Because if you held it in July you would have to abide by the statutes and the law by letting them vote. Answer. They do vote in July. Question. And if you held yours at that time they would have to vote too wouldn't they? Answer. Why should we vote? Question. And you hold it in May so they won't have to? Answer. Well, they don't vote in hours but they can vote on anybody in the July election they want to. Question. But you are not answering my question. My question is that you hold yours in May so you won't have to let them vote don't you? Answer. Yes. Question. And that is your purpose? Answer. Yes. Question. And that is your purpose? Answer. Yes. Question. And your intention? Answer. Yes. Question. And to have a vote of the white population at a time when the Negroes can't vote, isn't that right? Answer. That's right. Question. That is the whole policy of your association? Answer. Yes. Question. And that is its purpose? Answer. Yes. The district court found that the Jaybird Association was a political organization or party, that the majority of white voters generally abide by the results of its primaries and support in the Democratic primaries, the persons endorsed by the Jaybird primaries, and that the chief object of the association has always been to deny Negroes any voice or part in the election of Fort Bend County officials. The facts and findings bring this case squarely within the reasoning and holding of the Court of Appeals for the Fourth Circuit in its two recent decisions about excluding Negroes from Democratic primaries in South Carolina. South Carolina had repealed every trace of statutory or constitutional control of the Democratic primaries. It did this in the hope that thereafter the Democratic Party or Democratic Clubs of South Carolina would be free to continue discriminatory practices against Negroes as voters. The contention there was that the Democratic Clubs were mere private groups. The contention here is that the Jaybird Association is a mere private group. The Court of Appeals in invalidating the South Carolina practices answered these formalistic arguments by holding that no election machinery could be sustained if its purpose or effect was to deny Negroes on account of their race, an effective voice in the governmental affairs of their country, state, or community. In doing so, the Court relied on the principle announced in Smith v. Allright that the constitutional right to be free from racial discrimination in voting is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. The South Carolina cases are in accord with the commands of the 15th Amendment and the laws passed pursuant to it. That amendment provides as follows. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. The amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy, obviously applicable to the right of Negroes not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local. Shortly after its adoption, Mr. Chief Justice Waite, speaking for this Court, said, it follows that the amendment has invested the citizens of the United States with a new constitutional right, which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. Other cases have re-emphasized the 15th Amendment's specific grant of this new constitutional right. Not content to rest congressional power to protect this new constitutional right on the necessary and proper clause of the Constitution, the 15th Amendment's framers added Section 2, reading, the Congress shall have power to enforce this article by appropriate legislation. And Mr. Justice Miller, speaking for this Court, declared that the amendment's granted right to be free from racial discrimination should be kept free and pure by congressional enactments whenever that is necessary. Acting pursuant to the power granted by the second section of the 15th Amendment, Congress in 1870 provided as follows, all citizens of the United States who are otherwise qualified by law to vote at any election by the people in any state territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision shall be entitled and allowed to vote at all such elections without distinction of race, color, or previous condition of servitude. Any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding. The amendment, the congressional enactment, and the cases make explicit the rule against racial discrimination in the conduct of elections. Together they show the meaning of elections. Clearly, the amendment includes any election in which public issues are decided or public officials selected. Just as clearly the amendment excludes social or business clubs, and the statute shows the congressional mandate against discrimination whether the voting on public issues and officials is conducted in community, state, or nation. Size is not a standard. It is significant that precisely the same qualifications as those prescribed by Texas, entitling electors to vote at county-operated primaries, are adopted as the sole qualifications entitling electors to vote at the county-wide Jaybird primaries. With a single proviso, negros are excluded. Everyone concedes that such proviso in the county-operated primaries would be unconstitutional. The Jaybird party thus brings into being and holds precisely the kind of election that the 15th amendment seeks to prevent. When it produces the equivalent of the prohibited election, the damage has been done. For a state to permit such a duplication of its election processes is to permit a flagrant abuse of those processes to defeat the purposes of the 15th amendment. The use of the county-operated primary to ratify the result of the prohibited election merely compounds the offense. It violates the 15th amendment for a state by such circumvention to permit within its borders the use of any device that produces an equivalent of the prohibited election. The only election that has counted in this Texas county for more than 50 years has been that held by the Jaybirds from which negros were excluded. The Democratic primary and the general election have become no more than the perfunctory ratifiers of the choice that has already been made in Jaybird elections from which negros have been excluded. It is in material that the state does not control that part of this elective process, which it leaves for the Jaybirds to manage. The Jaybird primary has become an integral part, indeed the only effective part of the elective process that determines who shall rule and govern in the county. The effect of the whole procedure, Jaybird primary plus Democratic primary plus general election is to do precisely that which the 15th amendment forbids. Strip negros of every vestige of influence in selecting the officials who control the local county matters that intimately touch the daily lives of citizens. We reverse the court of appeals judgment reversing that of the district court. We affirm the district court's holding that the combined Jaybird Democratic general election machinery has deprived these petitioners of their right to vote on account of their race and color. The case is remanded to the district court to enter such orders and decrees as are necessary and proper. Under the jurisdiction it has retained under 28 United States code section 2202 and exercising this jurisdiction the court is left free to hold hearings to consider and determine what provisions are essential to afford negro citizens of Fort Bend County full protection from future discriminatory Jaybird Democratic general election practices which deprived citizens of voting rights because of their color reversed and remanded. End of Terry versus Adams an opinion of the United States Supreme Court. Brown versus Board of Education of Topeka, Kansas. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. Brown versus Board of Education of Topeka, Kansas. An opinion of the United States Supreme Court decided on May 17th, 1954. Please note for ease of listening this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Chief Justice Warren delivered the opinion of the court. These cases come to us from the states of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. In each of the cases, minors of the Negro race through their legal representatives seek the aid of the courts in obtaining admission to the public schools of their community on a non-segregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the 14th Amendment. In each of the cases, other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called separate but equal doctrine announced by this court in Plessy v. Ferguson. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not equal and cannot be made equal, and that hence they are deprived of the equal protection of the laws because of the obvious importance of the question presented. The court took jurisdiction. Argument was heard in the 1952 term and reargument was heard this term on certain questions propounded by the court. Reargument was largely devoted to the circumstances surrounding the adoption of the 14th Amendment in 1868. It covered exhaustively consideration of the amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of the proponents and opponents of the amendment. This discussion and our own investigation convince us that although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-war amendments undoubtedly intended them to remove all legal distinctions among all persons born or naturalized in the United States. Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the amendment's history with respect to segregated schools is the status of public education at that time. In the South, the movement toward free, common schools supported by general taxation had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost non-existent and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the amendment had advanced further in the North, but the effect of the amendment on Northern states was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary, ungraded schools were common in rural areas, the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the 14th amendment relating to its intended effect on public education. In the first cases in this court, construing the 14th amendment, decided shortly after its adoption, the court interpreted it as prescribing all state-imposed discriminations against the Negro race. The doctrine of separate but equal did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, involving not education, but transportation. American courts have since labored with the doctrine for over half a century. In this court, there have been six cases involving the separate but equal doctrine in the field of public education. In coming v. Board of Education of Richmond County gong loom v. Rice, the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in sweat versus painter, the court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases, that question is directly presented. Here, unlike sweat versus painter, there are findings below that the Negro and white schools involved have been equalized or are being equalized. With respect to buildings, curricula, qualifications and salaries of teachers, and other tangible factors, our decision therefore cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. In approaching this problem, we cannot turn the clock back to 1868 when the amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today, it is a principal instrument in awakening the child to cultural values and preparing him for later professional training and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he has denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. We come then to the question presented. Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. In sweat versus painter, in finding that a segregated law school for Negroes could not provide them equal educational opportunities. This court relied in large part on those qualities which are incapable of objective measurement, but which make for greatness in a law school. In McLauren versus Oklahoma State Regions, the court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations. His ability to study, to engage in discussions and exchange views with other students and in general to learn his profession. Such considerations apply with added force to children in grade in high schools, to separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs. Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law for the policy of separating the races as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law therefore has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language 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 14th amendment. This disposition makes unnecessary any discussion whether such segregation also violates the due process clause of the 14th amendment. 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 re-argument, the consideration of appropriate relief was necessarily subordinated to the primary question, the 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 re-argument this term. The Attorney General of the United States is again invited to participate. The Attorney's General of the States requiring or permitting segregation in public education will also be permitted to appear as amici curie upon request to do so by September 15, 1954 and submission of briefs by October 1, 1954. It is so ordered. End of Brown v. Board of Education of Topeka, Kansas an opinion of the United States Supreme Court Brown v. Board of Education of Topeka, Kansas This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org Recording by Kelly Robinson in Birmingham, Alabama Brown v. Board of Education of Topeka, Kansas an opinion of the United States Supreme Court decided on May 31, 1955. Please note, for ease of listening, this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Chief Justice Warren delivered the opinion of the court. These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded. Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. In view of the nationwide importance of the decision, we invited the Attorney General of the United States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the states of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument. These presentations were informative and helpful to the court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as a Mickey Curie and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this court concerning relief. Full implementation of these constitutional principles may require a 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 non-discriminatory 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 non-racial 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 racially non-discriminatory 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 the cases are 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 non-discriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case, ordering the immediate admission of the plaintiffs to schools previously attended only by white children, is affirmed on the basis of the principles stated in our May 17, 1954 opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that court may deem necessary in light of this opinion. It is so ordered. Judgments, except that in case number five, reversed and cases remanded with directions. Judgment in case number five affirmed and case remanded with directions. End of Brown v. Board of Education of Topeka, Kansas, an opinion of the United States Supreme Court. TROP vs. Dulles This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Kelly Robinson in Birmingham, Alabama. TROP vs. Dulles An opinion of the United States Supreme Court decided on March 31, 1958. Please note. This is a reading of the opinion of the court only. For ease of listening, this reading omits legal citations and footnotes found within the text of the court's opinion. Mr. Chief Justice Warren announced the judgment of the court and delivered an opinion in which Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Whitaker join. The petitioner in this case, a native born American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by court-martial for wartime desertion. As in Perez v. Brownell, the issue before us is whether this forfeiture of citizenship comports with the Constitution. The facts are not in dispute. In 1944, petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day, petitioner and a companion were walking along a road towards Rabat in the general direction back to Casablanca when an army truck approached and stopped. A witness testified the petitioner boarded the truck willingly and that no words were spoken. In Rabat, petitioner was turned over to military police. Thus ended petitioner's desertion. He had been gone less than a day and had willingly surrendered to an officer on an army vehicle while he was walking back towards his base. He testified that at the time when a companion were picked up by the army truck, we had decided to return to the stockade. The going was tough. We had no money to speak of and at the time we were on foot and we were getting cold and hungry. A general court-martial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. In 1952 petitioner applied for a passport. His application was denied on the ground that under the provisions of section 401G of the Nationality Act of 1940 as amended, he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955 petitioner commenced this action in the district court seeking a declaratory judgment that he is a citizen. The government's motion for summary judgment was granted and the Court of Appeals for the Second Circuit affirmed. Chief Judge Clark dissenting. We granted certiorari. Section 401G, the statute that decrees the forfeiture of this petitioner's citizenship is based directly on a Civil War statute which provided that a deserter would lose his rights of citizenship. But this phrase was not clear. When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself. In 1944 the statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service honorably discharged. At the same time it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities. Though these amendments were added to ameliorate the harshness of the statute, their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401G is amended now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to re-enter the armed forces, the military becomes the arbiter of citizenship and the domain given to it by Congress is not as narrow as might be supposed. Though the crime of desertion is one of the most serious in military law, it is by no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return. Into this category falls a great range of conduct which may be prompted by a variety of motives fear, laziness, hysteria, or any emotional imbalance. The offense may occur not only in combat but also in training camps for draftees in this country. The Solicitor General informed the court that during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing court's marshal and that about 7,000 of these were actually separated from the service and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship and the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship. Three times in the past three years we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country. A statute such as Section 401G raises serious issues in this area, but in our view of this case it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons. In Perez v. Brownell, I expressed the principles that I believe govern the constitutional status of United States citizenship. It is my conviction that citizenship is not subject to the general powers of the national government and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship. Under these principles this petitioner has not lost his citizenship. Desertion in wartime though it may merit the ultimate penalty does not necessarily signify allegiance to a foreign state. Section 401G is not limited to cases of desertion to the enemy and there is no such element in this case. The soldier committed a crime for which he should be and was punished but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The solicitor general acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country. Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous and the discharge of many of these obligations is essential to the security and well-being of the nation. The citizen who fails to pay his taxes or to abide by the laws, safeguarding the integrity of elections deals a dangerous blow to this country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war the citizen's duties include not only the military defense of the nation but also a full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the nation serious injury and, in appropriate circumstances, the punishing power is available to deal with their elections of duty. But citizenship is not lost every time a duty of citizenship is shirked and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen's conduct. However reprehensible that conduct may be as long as a person does not voluntarily renounce or abandon his citizenship and this petitioner has done neither I believe his fundamental right of citizenship is secure. On this ground alone the judgment in this case should be reversed. Since a majority of the court concluded in Perez versus Brownell that citizenship may be divested in the exercise of some governmental power I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits even under the majority's decision in Perez. The court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship so the majority concluded to eliminate those international problems that were thought to arise by reason of a citizens having voted in a foreign election. The statute in this case however is entirely different. Section 401G decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like section 401J of the Nationality Act decreeing loss of citizenship for evading the draft by remaining outside the United States. This provision was also before the court in Perez but the majority declined to consider its validity. While section 401J decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed section 401G provision in this case accords the accused deserter at least the safeguards of an adjudication of guilt in court martial. The constitutional question posed by section 401G would appear to be whether or not denationalization may be inflicted as a punishment even assuming that citizenship may be divested pursuant to some governmental power. But the government contends that the statute does not impose a penalty and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so committee of cabinet members in recommending this legislation to the Congress said it technically is not a penal law. How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them. Manifestly the issue of whether section 401G is a penal law cannot be thus determined. Of course it is relevant to know the classification employed by the cabinet committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that section 401G was based on the provisions of the 1865 Civil War statute which the committee itself termed distinctly penal in character. Furthermore the 1865 statute states in terms that deprivation of the rights of citizenship is in addition to the other lawful penalties of the crime of desertion. And certainly it is relevant to know that the reason given by the senate committee on immigration as to why loss of nationality under section 401G can follow desertion only after conviction by court martial was because the penalty is so drastic. The clear legislative classification of a statute as non-penal would not alter the fundamental nature of a plainly penal statute. With regard to section 401G the fact is that the views of the cabinet committee and of the congress itself as to the nature of the statute are equivocal and cannot possibly provide the answer to our inquiry. Determination of whether this statute penal law requires careful consideration. In form, section 401G appears to be a regulation of nationality. The statute deals initially with the status of nationality and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that a person shall lose his liberty by committing bank robbery though in form a regulation of liberty would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance. This court has been called upon to decide whether or not various statutes were penal ever since 1798. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws it has been necessary to determine whether a penal law was involved because these provisions apply only to statutes imposing penalties. In deciding whether or not a law is penal this court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment that is to reprimand the wrongdoer to deter others etc. it has been considered penal. But a statute has been considered non-penal if it imposes a disability not to punish but to accomplish some other legitimate governmental purpose. The court has recognized that any statute decreeing some diversity as a consequence of certain conduct may have both a penal and a non-penal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon a person who commits a bank robbery for instance loses his right to liberty and often his right to vote. If in the exercise of the power to protect banks both sanctions were imposed for the purpose of punishing bank robbers the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground eligibility for voting this law is sustained as a non-penal exercise of the power to regulate the franchise. The same reasoning applies to section 401G the purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems as was argued in Perez. Here the purpose is punishment and therefore the statute is a penal law. It is urged that this statute is not a penal law but a regulatory provision authorized by the war power. Congress has power to prescribe rules governing the proper performance of military obligations of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If citizenship is substituted for imprisonment it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court martial. During World War II the threat of this punishment was explicitly communicated by the army to soldiers in the field. Now a citizenship is a congressional exercise of the war power that it cannot rationally be treated other than as a penal law because it imposes the sanction of denationalization for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power. The government argues that the sanction of denationalization imposed by section 401G is not a penalty and deportation has not been so considered by this court. While deportation is undoubtedly a harsh sanction that has a severe penal effect this court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country. For example the statute authorizing deportation of an alien convicted under the 1917 espionage act was viewed not as designed to punish him for the crime of espionage but as an implementation of the sovereign power to exclude from which the deporting power is derived. This view of deportation may be highly fictional but even if its validity is conceded it is wholly inapplicable to this case. No one contends that the government has in addition to the power to exclude all aliens to denationalize all citizens nor does comparison to denaturalization eliminate the penal effect of denaturalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship if it were it would be a punishment rather it is imposed in the exercise of the power to make rules for the naturalization of aliens. In short the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no basis for saying that in this case denaturalization is not a punishment. Section 401G is a penal law and we must face the question whether the constitution permits the congress to take away citizenship as a punishment for a crime if it is assumed that the power of congress extends to divestment of citizenship the problem still remains as to this statute whether denaturalization is a cruel and unusual punishment within the meaning of the 8th amendment since wartime desertion is punishable by death there can be no argument that the penalty of denaturalization is excessive in relation to the gravity of the crime whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the 8th amendment at the outset let us put to one side the death penalty as an index of the constitutional limit on punishment whatever the arguments may be against capital punishment both on moral grounds and in terms of accomplishing the purposes of punishment and they are forceful the death penalty has been employed throughout our history and in a day when it is still widely accepted it cannot be said to violate the constitutional concept of cruelty but it is equally plain that the existence of the death penalty is not a license to the government to devise any punishment short of death within the limit of its imagination the exact scope of the constitutional phrase cruel and unusual has not been detailed by this court but the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice the phrase in our constitution was taken directly from the English Declaration of Rights of 1688 and the principle it represents can be traced back to the Magna Carta the basic concept underlying the 8th amendment is nothing less than the dignity of man while the state has the power to punish the amendment stands to assure that this power be exercised within the limits of civilized standards fines imprisonment and even execution may be imposed depending upon the enormity of the crime but any technique outside the bounds of these traditional penalties is constitutionally suspect this court has had little occasion to give precise content to the 8th amendment in an enlightened democracy such as ours this is not surprising but when the court was confronted with a punishment for 12 years in irons at hard and painful labor imposed for the crime of falsifying public records it did not hesitate to declare that the penalty was cruel in its successiveness and unusual in its character the court recognized in that case that the words of the amendment are not precise and that their scope is not static the amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society we believe as did Chief Judge Clark in the court below that use of denationalization as a punishment is barred by the 8th amendment there may be involved no physical mistreatment no primitive torture instead the total destruction of the individual status in organized society it is a form of punishment more primitive than torture for it destroys for the individual the political existence that was centuries in the development the punishment strips the citizen of his status in the national and international political community his very existence is at the sufferance of the country in which he happens to find himself while any one country may accord him some rights and presumably as long as he remained in this country he would enjoy the limited rights of an alien no country need do so because he is stateless furthermore his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation in short the expatriate has lost the right to have rights this punishment is offensive to cardinal principles for which the constitution stands it subjects the individual to a fate of ever increasing fear and distress he knows not what discriminations may be established against him what prescriptions may be directed against him and when and for what cause his existence in his native land may be terminated he may be subject to banishment against people he is stateless a condition deplored in the international community of democracies it is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person the threat makes the punishment obnoxious the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed on crime it is true that several countries prescribe expatriation in the event that their nationals engage in conduct and derogation of native allegiance even statutes of this sort are generally applicable primarily to naturalized citizens but use of denationalization as punishment for crime is an entirely different matter the united nations survey of the nationality laws of the nations of the world reveals that only two countries the philippines and turkey impose denationalization as a penalty for desertion in this country the 8th amendment forbids that to be done in concluding as we do that the 8th amendment forbids congress to punish by taking away citizenship we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an act of the national legislature is challenged no member of the court believes that in this case the statute before us can be construed to avoid the issue of constitutionality that issue confronts us and the task of resolving it is inescapably ours this task requires the exercise of judgment not the reliance upon personal preferences courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the constitution forbids we are oath bound to defend the constitution the obligation requires that congressional enactments be judged by the standards of the constitution the judiciary has the duty of implementing the constitutional safeguards that protect individual rights when the government acts to take away the fundamental right of citizenship the safeguards of the constitution should be examined with special diligence the provisions of the constitution are not time worn adages or hollow shibboleths they are vital living principles that authorize and limit governmental powers in our nation they are the rules of government when the constitutionality of an act of congress is challenged in this court we must apply those rules if we do not the words of the constitution become little more than good advice when it appears that an act of congress conflicts with one of those provisions we have no choice but to enforce the paramount commands of the constitution we are sworn to do no less we cannot push back the limits of the constitution merely to accommodate challenged legislation we must apply those limits as the constitution prescribes them bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication we do well to approach this task cautiously as all our predecessors have counseled but the ordeal of judgment cannot be shirked in some 81 instances since this court was established it has determined that congressional action violated the bounds of the constitution it is so in this case the judgment of the court of appeals for the second circuit is reversed and the cause is remanded to the district court for appropriate proceedings reversed and remanded end of TROP vs. Dulles an opinion of the united states supreme court cooper vs. erin this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kelly Robinson in Birmingham, Alabama cooper vs. erin an opinion of the united states supreme court decided on September 29th 1958 please note this is a reading of the opinion of the court only for ease of listening this reading omits legal citations and footnotes found within the text of the court's opinion opinion of the court by the chief justice Mr. Justice Black Mr. Justice Frankfurter Mr. Justice Douglas Mr. Justice Burton Mr. Justice Clark Mr. Justice Harlan Mr. Justice Britton and Mr. Justice Whitaker as this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government it necessarily involves a claim by the governor and legislature of a state that there is no duty on state officials to obey federal court orders resting on this court's considered interpretation of the united states constitution specifically it involves actions by the governor and legislature of Arkansas upon the premise that they are not bound by our holding in brown versus board of education that holding was that the 14th amendment forbids states to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement management funds or property we are urged to uphold a suspension of the little rock school board's plan to do away with segregated public schools in little rock until state laws and efforts to upset and nullify our holding in brown versus board of education have been further challenged and tested in the courts we reject these contentions the case was argued before us on September 11 1958 on the following day we unanimously affirmed the judgment of the court of appeals for the 8th circuit which had reversed a judgment of the district court for the eastern district of Arkansas the district court had granted the application of the petitioners the little rock school board and school superintendent to suspend for two and one half years the operation of the school board's court approved desegregation program in order that the school board might know without doubt its duty in this regard before the opening of school which had been set for the following Monday September 15, 1958 we immediately issued the judgment reserving the expression of our supporting views to a later date this opinion of all of the members of the court embodies those views the following are the facts and circumstances so far as necessary to show how the legal questions are presented on May 17, 1954 this court decided that enforced racial segregation in the public schools of a state is a denial of the equal protection of the laws and joined by the 14th amendment the court postponed pending further argument formulation of a decree to effectuate this decision that decree was rendered May 31, 1955 in the formulation of that decree the court recognized that good faith compliance with the principles declared in Brown might in some situations 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 the court went on to state 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 and compliance at the earliest practicable date to that end the court 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 non-racial basis and revision of local laws and regulations which may be necessary in solving the foregoing problems under such circumstances the district courts were directed to require a prompt and reasonable start toward full compliance and to take such action as was necessary to bring about the end of racial segregation in the public schools with all deliberate speed of course in many locations obedience to the duty of racial segregation would require the immediate general admission of Negro children otherwise qualified as students for their appropriate classes at particular schools on the other hand a district court after analysis of the relevant factors which of course excludes hostility to racial desegregation might conclude that justification existed for not requiring the present non-segregated admission of all qualified Negro children in such circumstances however the court should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation and had taken appropriate steps to put their program into effective operation it was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced and that only a prompt start diligently and earnestly pursued to eliminate racial segregation from the public schools could constitute good faith compliance state authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system on May 20th, 1954 three days after the first brown opinion the little rock district school board adopted and on May 23rd, 1954 made public a statement of policy entitled supreme court decision segregation in public schools in this statement the board recognized that it is our responsibility to comply with federal constitutional requirements and we intend to do so when the supreme court of the United States outlines the method to be followed there after the board undertook studies of the administrative problems confronting the transition to a desegregated public school system at little rock it instructed the superintendent of schools to prepare a plan for desegregation and approve such a plan on May 24th, 1955 seven days before the second brown opinion the plan provided for desegregation at the senior high school level grades 10 through 12 as the first stage desegregation at the junior high and elementary levels was to follow it was contemplated that desegregation at the high school level would commence in the fall of 1957 and the expectation was that complete desegregation of the school system would be accomplished by 1963 following the adoption of this plan the superintendent of schools discussed it with a large number of citizen groups in the city as a result of these discussions the board reached the conclusion that a large majority of the residents of little rock were of the belief that the plan although objectionable in principle from the point of view of those supporting segregated schools was still the best for the interests of all pupils in the district upon challenge by a group of negro plaintiffs desiring more rapid completion of the desegregation process the district court upheld the school board's plan the court of appeals affirmed review of that judgment was not sought here while the school board was thus going forward with its preparation for desegregating the little rock school system other state authorities in contrast were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this court had held violated the 14th amendment first came in November 1956 an amendment to the state constitution flatly commanding the Arkansas general assembly to oppose in every constitutional manner the unconstitutional desegregation decisions of May 17th 1954 and May 31st 1955 of the United States Supreme Court pursuant to this state constitutional command a law relieving school children from compulsory attendance at racially mixed schools and a law establishing a state sovereignty commission were enacted by the general assembly in February 1957 the school board and the superintendent of schools nevertheless continued with preparations to carry out the first stage of the desegregation program nine Negro children were scheduled for admission in September 1957 to central high school which has more than 2000 students various administrative measures designed to assure the smooth transition of this first stage of desegregation were undertaken on September 2nd 1957 the day before these Negro students were to enter central high the school authorities were met with drastic opposing action on the part of the governor of Arkansas who dispatched units of the Arkansas national guard to the central high school grounds and placed the school off limits to colored students as found by the district court and subsequent proceedings the governor's action had not been requested by the school authorities and was entirely unheralded the findings were these up to this time September 2nd no crowds had gathered about central high school and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred nevertheless out of an abundance of caution the school authorities had frequently conferred with the mayor and chief of police of little rock about taking appropriate steps by the little rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the nine colored students at central high school the mayor considered that the little rock police could adequately cope with any incidents which might arise at the opening of school the mayor, the chief of police and the school authorities made no request to the governor or any representative of his for state assistance in maintaining peace and order at central high school neither the governor nor any other official of the state government consulted with the little rock authorities about whether the little rock police were prepared to cope with any incidents which might arise at the school about any need for state assistance in maintaining peace and order or about stationing the arkansas national guard at central high school the board's petition for postponement in this proceeding states the effect of that action of the governor was to harden the core of opposition to the plan and cause many persons who there too for had reluctantly accepted the plan to believe that there was some power in the state of arkansas which when exerted could nullify the federal law and permit disobedience of the decree of this district court and from that date hostility to the plan was increased and criticism of the officials of the school district has become more bitter and unrestrained the governor's action caused the school board to request the negro students not to attend the high school until the legal dilemma was solved the next day, september 3rd 1957 the board petitioned the district court for instructions and the court after a hearing found that the board's request of the negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities the court determined that this was not a reason for departing from the approved plan and ordered the school board and superintendent to proceed with it on the morning of the next day september 4th 1957 the negro children attempted to enter the high school but as the district court later found units of the arkansas national guard acting pursuant to the governor's order stood shoulder to shoulder at the school grounds and thereby forcibly prevented the nine negro students from entering as they continued to do every school day during the following three weeks that same day september 4th 1957 the united states attorney for the eastern district of arkansas was requested by the district court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the district court's direction to carry out the desegregation program three days later september 7th the district court denied a petition of the school board and the superintendent of schools for an order temporarily suspending continuance of the program upon completion of the united states attorneys investigation he and the attorney general of the united states at the district court's request entered the proceedings and filed a petition on behalf of the united states as amicus curie to join the governor of arkansas and officers of the arkansas national guard from further attempts to prevent obedience to the court's order after hearings on the petition the district court found that the school board's plan had been obstructed by the governor through the use of national guard troops and granted a preliminary injunction on september 20th 1957 and joining the governor and the officers of the guard from preventing the attendance of negro children at central high school and from otherwise obstructing or interfering with the orders of the court in connection with the plan the national guard was then withdrawn from the school the next school day was monday september 23rd 1957 the negro children entered the high school that morning under the protection of the little rock police department and members of the arkansas state police but the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school on september 25th however the president of the united states dispatched federal troops to central high school and admission of the negro students to the school was thereby affected regular army troops continued at the high school until november 27th 1957 they were then replaced by federalized national guardsmen who remained throughout the balance of the school year eight of the negro students remained in attendance at the school throughout the school year we come now to the aspect of the proceedings presently before us on february 20th 1958 the school board and the superintendent of schools filed a petition in the district court seeking a postponement of their program for desegregation their position in essence was that because of extreme public hostility which they stated had been engendered largely by the official attitudes and actions of the governor and the legislature the maintenance of a sound educational program at central high school with the negro students in attendance would be impossible the board therefore proposed the negro students already admitted to the school be withdrawn and sent to segregated schools and that all further steps to carry out the board's desegregation program be postponed for a period later suggested by the board to be two and one half years after a hearing the district court granted the relief requested by the board among other things the court found that the past year at central high school had been attended by conditions of chaos bedlam and turmoil that there were repeated incidents of more or less serious violence directed against the negro students and their property that there was tension and unrest among the school administrators the classroom teachers the pupils and the ladders parents which inevitably had an adverse effect upon the educational program that a school official was threatened with violence that a serious financial burden had been cast on the school district that the education of the students had suffered and under existing conditions will continue to suffer that the board would continue to need military assistance or it's equivalent that the local police department would not be able to detail both men to afford the necessary protection and that the situation was intolerable the district court's judgment was dated June 20th, 1958 the negro respondents appealed to the court of appeals for the 8th circuit and also sought there a stay of the district court's judgment at the same time they filed a petition for certiorari in this court asking us to review the district court's judgment without awaiting the disposition of their appeal to the court of appeals or of their petition to that court for a stay that we declined to do the court of appeals did not act on the petition for a stay but on August 18th, 1958 after convening in special session on August 4th and hearing the appeal reversed the district court on August 21st, 1958 the court of appeals stayed its mandate to permit the school board to petition this court for certiorari pending the filing of the school board's petition for certiorari the negro respondents on August 23rd, 1958 applied to Mr. Justice Whitaker as circuit justice for the 8th circuit to stay the order of the court of appeals with holding its own mandate and also to stay the district court's judgment in view of the nature of the motions he referred them to the entire court recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year we convened in special term on August 28th, 1958 and heard oral argument on the respondents motions and also argument of the solicitor general who by invitation appeared for the United States as amicus curie and asserted that the court of appeals judgment was clearly correct on the merits and urged that we vacate its stay forthwith finding that respondents application necessarily involved consideration of the merits of the litigation we entered an order which deferred decision upon the motions pending the disposition of the school board's petition for certiorari and fixed September 8th, 1958 as the day on or before which such petition might be filed and September 11th, 1958 for oral argument upon the petition the petition for certiorari, dilly filed was granted an open court on September 11th, 1958 and further arguments were had the solicitor general again urging the correctness of the judgment of the court of appeals on September 12th, 1958 as already mentioned we unanimously affirmed the judgment of the court of appeals in the percurium opinion set forth in the margin at the outset of this opinion in affirming the judgment of the court of appeals which reverse the district court we have accepted without reservation the position of the school board the superintendent of schools and the council that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined we likewise have accepted the findings of the district court as to the conditions at central high school during the 1957-1958 school year and also the findings of the educational progress of the students white and colored of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue the significance of these findings however is to be considered in light of the fact indisputably revealed by the record before us that the conditions they depict are directly traceable to the actions of legislators and executive officials of the state of Arkansas taken in their official capacities which reflect their own determination to resist this court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas in its petition for certiorari filed in this court the school board itself describes the situation in this language the legislative, executive and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws calling out troops making statements vilifying federal law and federal courts and failing to utilize state law enforcement agencies and judicial processes to maintain public peace one may well sympathize with the position of the board in the face of the frustrating conditions which have confronted it but regardless of the board's good faith the actions of the other state agencies responsible for those conditions compel us to reject the board's legal position had central high school been under the direct management of the state itself it could hardly be suggested that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents when vindication of those rights was rendered difficult or impossible by the actions of other state officials the situation here is no different posture because the members of the school board and the superintendent of schools are local officials from the point of view of the 14th amendment they stand in this litigation as the agents of the state the constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the governor and legislature as this court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation it is urged that this proposed segregation will promote the public peace by preventing race conflicts desirable as this is and important as is the preservation of the public peace the same cannot be accomplished by laws or ordinances which deny rights created or protected by the federal constitution thus law and order are not here to be preserved by depriving the negro children of their constitutional rights the record before us clearly establishes that the growth of the board's difficulties to a magnitude beyond its unaided power to control is the product of state action those difficulties as counsel for the board forthrightly conceded on the oral argument in this court can also be brought under control by state action the controlling legal principles are plain the command of the 14th amendment is that no state shall deny to any person within its jurisdiction the equal protection of the laws a state acts by its legislative its executive or its judicial authorities it can act in no other way the constitutional provision therefore must mean that no agency of the state or of the officers or agents by whom its powers are exerted shall deny to any person within its jurisdiction the equal protection of the laws whoever by virtue of public position under a state government denies or takes away the equal protection of the laws violates the constitutional inhibition and as he acts in the name and for the state and is clothed with the state's power his act is that of the state this must be so or the constitutional prohibition has no meaning thus the prohibitions of the 14th amendment extend to all action of the state denying equal protection of the laws whatever the agency of the state taking the action or whatever the guise in which it is taken in short the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this court in the Brown case can either be nullified openly and directly by state legislators or state executives or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously what has been said in the light of the facts developed is enough to dispose of the case however we should answer the premise of the actions of the governor and legislature that they are not bound by our holding in the Brown case it is necessary only to recall some basic constitutional propositions which are settled doctrine article 6 of the constitution makes the constitution the supreme law of the land in 1803 chief justice Marshall speaking for a unanimous court referring to the constitution as the fundamental and paramount law of the nation declared in the notable case of Marbury versus Madison that it is emphatically the province and duty of the judicial department to say what the law is this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the constitution and that principle has ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system it follows that the interpretation of the 14th amendment enunciated by this court in the Brown case is the supreme law of the land and article 6 of the constitution makes it of binding effect on the states anything in the constitution or laws of any state to the contrary notwithstanding every state legislator an executive and judicial officer is solemnly committed by oath taken pursuant to article 6 paragraph 3 to support this constitution chief justice Taney speaking for a unanimous court in 1859 said that this requirement reflected the framers anxiety to preserve it the constitution in full force in all its powers and to guard against resistance to or evasion of its authority on the part of a state no state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it chief justice Marshall spoke for a unanimous court in saying that several states may at will annul the judgments of the courts of the United States and destroy the rights acquired under those judgments the constitution itself becomes a solemn mockery a governor who asserts a power to nullify a federal court order is similarly restrained if he had such power said chief justice Hughes in 1932 also for a unanimous court manifest that the fiat of a state governor and not the constitution of the united states would be the supreme law of the land that the restrictions of the federal constitution upon the exercise of state power would be but impotent phrases it is of course quite true that the responsibility for public education is primarily the concern of the states but it is equally true that such responsibilities like all other state activity must be exercised consistently with federal constitutional requirements as they apply to state action the constitution created a government dedicated to equal justice under law the 14th amendment embodied and emphasized that ideal state support of segregated schools through any arrangement management funds or property cannot be squared with the amendments command that no state shall deny to any person within its jurisdiction the equal protection of the laws the right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law the basic decision in Brown was unanimously reached by this court only after the case had been briefed and twice argued and the issues had been given the most serious consideration since the first Brown opinion three new justices have come to the court they are at one with the justices still on the court who participated in that basic decision as to its correctness and that decision is now unanimously reaffirmed the principles announced in that decision and the obedience of the states to them according to the command of the constitution are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us our constitutional ideal of equal justice under law is thus made a living truth end of cooper versus Aaron an opinion of the united states supreme court