COOPER
ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK,
358
THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE
FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR.
JUSTICE HARLAN, MR. JUSTICE [***9] BRENNAN, and MR. JUSTICE WHITTAKER.
[**1403]
[***HR1] 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 v. Board of Education, 347 U.S. 483. That
holding was that the Fourteenth 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
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 Eighth
Circuit, 257 F.2d 33, which had reversed a judgment of the District Court for
the Eastern District of Arkansas, 163 F.Supp. 13. 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 [*5]
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 was the Court's per curiam opinion:
"PER CURIAM.
"The Court, having fully deliberated upon the
oral arguments had on August 28, 1958, as supplemented by the arguments
presented on September 11, 1958, and all the briefs on file, is unanimously of
the opinion that the judgment of the Court of Appeals for the Eighth Circuit of
August 18, 1958, 257 F.2d 33, must be affirmed.
In view of the imminent commencement of the new school year at the
Central High School of Little Rock, Arkansas, we deem it important to make prompt
announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our
judgment will be prepared and announced in due course.
"It is accordingly ordered that the judgment of
the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F.2d
33, reversing the judgment of the District Court for the Eastern District of
Arkansas, dated June 20, 1958, 163 F.Supp. 13, be
affirmed, and that the judgments of the District Court for the Eastern District
of Arkansas, dated August 28, 1956, see 143 F.Supp.
855, and September 3, 1957, enforcing the School Board's plan for desegregation
in compliance with the decision of this Court in Brown v. Board of
Education, 347 U.S. 483, 349 U.S. 294, be reinstated. It follows that the order of the Court of
Appeals dated August 21, 1958, staying its own mandate is of no further effect.
"The judgment of this Court shall be effective
immediately, and shall be communicated forthwith to the District Court for the
Eastern District of Arkansas."
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 [***10] that enforced racial segregation in the
public schools of a State is a denial of the equal protection of the laws
enjoined by the Fourteenth Amendment. Brown v. Board
of Education, 347
"Courts of equity may properly take into account the public
interest in the elimination of such obstacles in a systematic and effective
manner. But it should go without saying
that the vitality of these constitutional principles cannot be allowed to yield
simply because of disagreement with them.
"While giving weight to these
public and private considerations, the courts will require that the defendants
make a prompt and reasonable start toward full compliance with our May 17,
1954, ruling. Once such a start has been
made, the courts may find that additional time is necessary to carry out the
ruling in an effective manner. The
burden rests upon the defendants to establish that such time is necessary in
the public interest and is consistent with good faith compliance at the
earliest practicable date. To that end,
the courts may consider problems related to administration, arising from the
physical condition of the school plant, the school transportation system, personnel,
revision of school districts and attendance areas into compact units to achieve
a system of determining admission to the public schools on a nonracial basis,
and revision of local laws and regulations which may be necessary in solving
the foregoing problems." 349
[*7]
[***HR2] [***HR3]
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." Ibid. Of course, in many locations, obedience to
the duty of desegregation 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 nonsegregated
admission of all qualified Negro children.
In such circumstances, however, the courts 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 [***11]
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 20, 1954, three days after
the first Brown opinion, the Little Rock District School Board adopted,
and on May 23, 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
[*8]
Thereafter the Board undertook studies of the administrative problems
confronting the transition to a desegregated public school system at
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, Aaron v. Cooper,
143 F.Supp. 855. The Court of Appeals affirmed. 243 F.2d 361. 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 Fourteenth 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
Un-constitutional [*9] desegregation decisions of May 17, 1954 and
May 31, 1955 of the
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 [***12] High School, which has more than two thousand
students. Various administrative
measures, designed to assure the smooth transition of this first stage of
desegregation, were undertaken.
On September 2, 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 in 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
2], no crowds had gathered about
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 theretofore had reluctantly accepted the Plan to believe 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 on September 2 not to attend the high school "until the
legal dilemma was solved." The next day, September 3, 1957, the Board
petitioned the District Court for instructions, and the court, after a hearing,
found that the Board's [*11] 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 4, 1957, the Negro children attempted to enter the high school but,
as the District Court later found, units of the Arkansas [***13] National Guard "acting pursuant to the
Governor's order, stood shoulder to shoulder at the school grounds and thereby
forcibly prevented the 9 Negro students . . . from entering," as they
continued to do every school day during the following three weeks. 156 F.Supp., at 225.
That same day, September 4, 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 7, 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 Attorney's 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 curiae, to enjoin 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 [*12] 20, 1957, enjoining 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. 156 F.Supp.
220, affirmed, Faubus v.
[**1407]
The next school day was Monday, September 23, 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. 163 F.Supp.,
at 16. On September 25, however, the President of the
We come now to the aspect of the
proceedings presently before us. On
February 20, 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
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
class-room teachers, the pupils, and the latters'
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 its equivalent"; that the local police
department would not be able "to detail enough men to afford the necessary
protection"; and that the situation was "intolerable." 163 F.Supp.,
at 20-26.
The District Court's judgment was
dated June 20, 1958. The Negro
respondents appealed to the Court of Appeals for the Eighth 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. 357
[***HR4] In affirming the judgment of the Court of
Appeals which reversed the District Court we have accepted without reservation
the position of the School Board, the
[*15] Superintendent of Schools,
and their counsel 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
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 villifying federal law and
federal courts, and failing to utilize state law enforcement agencies and
judicial processes to maintain public peace."
[***HR5] 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 [*16] 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 in 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
Fourteenth Amendment, they stand in this litigation as the agents of the State.
[**1409]
[***HR6] [***HR7]
[***HR8] 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 [***16] as this is, and important as is the
preservation of the public peace, this aim cannot be accomplished by laws or
ordinances which deny rights created or protected by the Federal
Constitution." Buchanan v. Warley,
245
[***HR9] [***HR10]
[***HR11] The controlling legal
principles are plain. The command of the
Fourteenth 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
[*17] 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." Ex parte
Virginia, 100
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.
[*18]
[***HR12] [***HR13]
[***HR14] [***HR15] Article VI 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 v. Madison, 1 Cranch
137, 177, [***17] 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 [**1410] respected by this Court and the Country as a
permanent and indispensable feature of our constitutional system. It follows that the interpretation of the
Fourteenth Amendment enunciated by this Court in the Brown case is the
supreme law of the land, and Art. VI of the Constitution makes it of binding
effect on the States "any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding." Every state legislator and executive and
judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 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 . . . ."
Ableman v. Booth, 21 How. 506, 524.
[***HR16] 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: "If the legislatures of the several
states may, at will, annul the judgments of the courts of the
[***HR17] [***HR18]
[***HR19] 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 Fourteenth Amendment embodied and
emphasized that ideal. State support of
segregated schools through any arrangement, management, funds, or property
cannot be squared with the Amendment's 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. Bolling v. Sharpe,
347