SEPARATE
BUT
EQUAL

Screenplay and Direction

by George
Stevens, Jr.

1991

Separate But Equal originally was shown in two parts, first and second nights. DVDs are divided accordingly.

Scene 1: A Request for a Bus [Scene runs from 00:05:48-00:08:30. For those with DVDs, it begins 40 seconds into ch. 2.]

Reverend De Laine, principal of the African American public school in Clarendon County, South Carolina, visits the office of the Superintendent of the public school district.

Reverend De Laine: Professor Springer, we have a serious problem over at our place.

Superintendent Springer: We got problems everywhere. Don't you know that? (He laughs.) Hell, education is hard work. Too much to teach, too little time.

Reverend De Laine: My children have to walk to school. Some walk five, six miles. Some have stopped coming at all. It's a bad situation, sir. We need a bus.

Superintendent Springer: Running schools is expensive–salaries, maintenance, insurance, books, heat, electricity–costs a lot of money.

Reverend De Laine: We need one bus. You've got thirty buses for the white children.

Superintendent Springer: You know as well as anybody, white people pay more taxes than the colored people do.

Reverend De Laine: Give us your oldest bus. We'll pay the gas.

Superintendent Springer: How can I make myself clear? We just ain't got any money for buses for you and your nigger children.

Scene moves to Harry Briggs returning to his house after a days work. He finds the Reverend and another man waiting for him.

Reverend De Laine: We have to talk, Harry. (Introducing his companion) This is Howard Bowaire. Mr Bowaire is an attorney.

Mr. Briggs: Come on in.

Mr. Bowaire: What we have here Mr. Briggs is a petition to the Clarendon County Board of Education. It says that you being the father of Harry Briggs, Jr, aged twelve, wants school bus transportation to be furnished, maintained, and operated out of public school district no. 26 of Clarendon Country for the use of said child and other Negro school children similarly situated.

Reverend De Laine: If they use tax money to give bus service to the white children, they have to give it to us too.

Mr. Bowaire: The 14th Amendment to the Constitution states that each citizen is guaranteed equal protection under the law.

Mr. Briggs: Will this go to court?

Camera cuts to his wife and children, preparing for dinner in the next room.

Mr. Bowaire: It could.

Mr. Briggs: Well, I don't guess I spent three years in the United States navy to keep the world safe for Jim Crowe. (Pause) I sure hope this man knows his business.

Scene 2: The Fourteenth Amendment [Scene runs from 00:13:28-0017:30. For those with DVDs, it begins one minute and fifteen seconds into ch. 3.]

The NAACP has sent representatives to South Carolina, including attorney Thurgood Marshall. Marshall talks to a group of African Americans in a church. The suit filed by Harry Briggs has been dismissed by the Court, on the ground that he lived outside the school district in which he filed the suit.

Mr. Marshall: What happened to Harry Briggs happens everywhere we go. Putting one man out front is risky. They'll find a way to disqualify him, or to scare him off. If there are twenty people here in Summerton who are willing to sign a complaint against the school board, we will bring a case against them.

Man in the audience: What sort of case?

Mr. Marshall: (Walking toward the audience, and taking a slip of paper out of his pocket) Your county spends $179 each year for each white child, and only $43 for each colored child. That's not equal, and that means that it's against the law, pure and simple.

Another man in the audience: But, Mr. Marshall, when I was a boy, there was no school here at all. I just don't think it was a smart thing to put a sword at the white man's throat.

Another man in the audience: Most of thus around here are tenant farmers. We work the white folks' land. We need money to get seed and fertilizer. We have to borrow from the banks.

Mr. Briggs: We ain't tryin' to take anything away from these white folds. I just mean to get an education for that little black boy of mine. He's just as good as any other South Carolina boy.

Mr. Marshall: I think he's better than a lot of them. (Laughter, and approval) Our reverend at our church back home used to say that he liked to think that when the Lord created him, he did not do it on a Saturday when he was tired out and didn't have much to work with. He said he preferred to think that the Lord created him early Monday morning when He had the best materials to work with and all the energy He needed. (The audience claps in approval.)

What our reverend was saying is that we are equal to anyone on the face of the earth. And the Constitution of the United States says the same thing. The 14th Amendment: No state shall deny any person of equal protection of the law. They added that amendment to give our folks a fair chance.

Woman in audience: Mr. Marshall, the law doesn't mean much down here.

Mr. Marshall: We just finished a case, where they wouldn't admit a colored man into the law school of the University of Texas. The Supreme Court in Washington said they had to let him in because there was no equal facility in Texas. And we all know what these doghouse schools mean to the future of our children. That's why the NAACP has started test cases in the courts, in Kansas, and Virginia. And we're willing to bring a case here, in South Carolina, but we can't do it without you. If twenty tax-paying people sign up, we will come down here.

Reverend De Laine: Mr. Marshall, what we need to know is, what chance there is of it working?

Mr. Marshall: There will be hostility, and probably reprisals, but the law is on our side.

Camera cuts to audience. We see worried and solemn looks on faces. Silence.

Mr. Marshall and Mr. Bowaire leave the church and get back into the car.

Mr. Bowaire: Sorry, Thurgood, I thought they'd be all for it.

Mr. Marshall: Two hours I'm back on the train. Saturday night I'm sleeping in my own bed, safe and sound, in New York City. I'm asking these people to risk their jobs and their safety. That's asking a lot.

They drive away, to the sounds of people singing hymns in the church.

Scene 3: How Shall We Fight? [The scene runs from 29:40 to 32:00. For those with DVDs it runs through ch.8.]

In the office of the NAACP. One of NAACP officials is looking over a list of signatures.

NAACP official: Sixty-six signatures. This will make a strong case.

Second official: To ask for equal school facilities or to end segregation?

Third official: thought we decided that the NAACP policy was says we're going to fight segregation head on.

Second official: It doesn't say when. And it sure doesn't say South Carolina. Separate but equal is the law of the land. When we demand equal, we're asking for what the law gives us. If we demand an end to segregation, we're challenging the law of the United States.

(During this last statement, Marshall walks to the door of the office, and shuts it, making it less likely that their discussion can be overheard by those in the next office.)

Third official: You want to go one by one to every school district in the South? Trying to get the judges to force them to make the schools equal?

Second official: It's the beachhead strategy. Make them spend so much making their schools equal that they'll finally cave in and integrate.

Third official: You know how many segregated school districts there are in this country?

Fourth official: 11,173.

Third official: Each case costs money. And even if we win every one of them, it will take forever.

Second official: When we challenge segregation head on, we have to do it in the right place. Deep South is not the right place. (Camera reveals a picture of Abraham Lincoln on the wall.) White people down there are terrified at the idea of their little white girls going to school with little black boys. (Turning to Marshall) Thurgood, let's wait for a border state. Wait til our Topeka case is ready. We got a chance in Kansas.

Third official: We always say we're going to fight segregation head on. And then we step back.

First official: Sue for equal schools, and you're up against the little school boy. Sue to desegregate, and you're challenging the sovereign state of South Carolina.

Fourth official: If we sue for equal schools, we end by in Judge Waities Waring's court. He's pretty good. He could rule for equal schools by himself. Thurgood, if we challenge segregation head on, we challenge the state law. That would have to be heard by a three-judge court.

Voice in the background: Tough going.

Mr. Marshall: We can't let the land and its people down,.

Third official: When we file our brief, do we backtrack, or do we challenge the principle of segregation?

Mr. Marshall: We can go with a two-string bow. Put the challenge to segregation in as a matter of principle, but focus the attack on the inequality of the Clarendon County school system. Make them live up to their precious separate but equal.

Third official: If we win this one, we'll only have 11, 172 school districts left.

Scene 4: Effects of Segregation [Scene runs from 53:30 to 55:36. For those with DVDs, it begins four minutes and a half minutes into ch. 14.]

On March 28, 1951, the case is heard by a three-judge panel in Charleston, South Carolina. Dr. Clark, social psychologist, with degrees rom Howard University and Columbia University, is called as an expert witness by the attorneys for the plaintiffs. This scene begins with Dr. Clark on the witness stand.

One of the attorneys for plaintiffs: Is it true you conducted scientific measurements in Clarendon County to determine the effects of segregation on Clarendon County Negro school children?

Dr. Clark: Yes.

One of the judges: I can't hear the man.

Another judge: Speak up, Mr. Clark.

Attorney: Please describe, Dr. Clark, the results of your investigation.

Dr. Clark: When Negro children were asked to choose between white dolls and brown dolls, and to say which doll was the nice doll, 65% said the white doll was the nice doll. Everyone of our tests shows an unmistakable preference for the white doll, and a rejection of the brown doll. These children in Clarendon County, like other human beings who have been subjected to an obviously inferior status, have been irreparably harmed. The result is a confusion in the child's concept of his own self-esteem. And this leads to a desire to resolve this basic conflict by withdrawing.

Attorney: Do you believe this policy of segregation has any effect on the white children?

Dr. Clark: Yes. It causes moral confusion. The child who is part of the segregating group sees the same people, who teach him democracy, brotherhood, love of his fellow man, also teach him to segregate and discriminate.

Judge: (To the attorney for the state) Your witness, Mr. Tulley.

Mr. Tulley: Dr. Clark, how many white children were in your class room when you went to school?

Dr. Clark: None.

Mr. Tulley: Has anyone ever described you as inferior?

(Dr. Clark looks dubious.)

Mr. Tulley: No more questions.

Office of Attorney, John W. Davis. His daughter comes to speak with him.

Julia: Good morning, father

Mr. Davis: (Looking up from his work) Dearest Julia.

Julia: You're busy.

Mr. Davis: Never too busy for you. (They embrace). Now tell me. To what do I owe this happy surprise?

Julia: Father, I've been thinking. I don't think you should take the segregation case.

Mr. Davis: Why is that?

Julia: I think that times are changing. And times will have to change in the South too.

Mr. Davis: Times are always changing, Julia.

Julia: If you take the case, it will appear that you are against the Negro.

Mr. Davis: Nonsense, Julia. (Goes over to a trophy, and picks it up) I treasure this. (Reading): "To John W. Davis, from a grateful people, for his efforts in fighting for the cause of human rights. From the Negroes of West Virginia and the Nation." Sudden integration could turn out to be the worst thing for the cause of the Negro.

Julia: Even if true, that it not a very popular position.

Mr. Davis: Nonsense, Julia. I've defended giant corporations. And I've defended Eugene V. Debs, socialist labor leader, charged with inciting a riot in a coal miners' strike in West Virginia, Alger Hiss, Bob Oppenheimer, popular? In fifty years, I've never taken a case because it was popular or unpopular. This case challenges the right of the states to make and enforce their own laws. The law guides me.

Julia: What kind of law is this?

Mr. Davis: The framers of the Constitution understood correctly that the greatest protection for human freedom was local autonomy, a government close to the people. If segregation is to be outlawed it must be done by an act of Congress, or an Amendment to the Constitution. I believe it's wrong for nine men in Washington to tell a man in South Carolina who his daughter ought to sit next to in school. I'm going to take this case, Julia. And I'm going to win it.

Part II [The following scenes come from the second night of the film's showing. Chapters begin again at 1.]

Scene 6: What is the Solution? [Scene runs from 00:13:10 to 00:17:56. For those with DVDs, it begins just over four minutes into ch. 3.]

On December 9, 1952, the case is heard by the Supreme Court. Scene begins with Mr. Marshall's addressing the Court.

Mr. Marshall: Mr Chief Justice. May it please the Court, my colleagues will address the Kansas, Delaware, Virginia, and District of Columbia cases. I will speak on behalf of Harry Briggs, Jr., and the Negro children of the town of Summiton, who have raised their attack on the validity of the South Carolina code which reads that "it shall be unlawful for the pupils of one race to attend the schools provided for persons of another race."

In the lawcourts, we produced unchallenged experts who testified that segregation damages the personality of Negro children and destroys their self-respect. If Ralph Bunch, this nation's distinguished ambassador to the United Nations were assigned to South Carolina, it would be the will of the people that his children go to a Jim Crowe school. No matter how great anyone becomes, if he happens to be a Negro, his children are relegated to that school.

Yet this Court is being asked by the defense to uphold the segregation law of South Carolina. Under our form of government, the only testing ground as to whether or not individual rights are violated by the majority is here, in this Supreme Court of the United States. The Court must weigh the rights of the Negro children against the public policy of the state of South Carolina, and if that policy violates those rights, then this Court, reluctant or otherwise, is obliged to say that that policy as run up against the 14th Amendment to the Constitution which guarantees all citizens equal treatment under the law.

We therefore respectfully urge that the judgment of the district court be reversed, and the children's rights be affirmed.

Justice Reed: Is it fair to say that the South Carolina legislature set up segregated school to avoid racial friction?

Mr. Marshall: Yes, sir.

Justice Reed: Doesn't the legislature have to weigh the advantage of maintaining law and order against what might be the disadvantage to the segregated group?

Mr. Marshall: I think that the legislature should, Mr. Justice Reed, but I think we have to bear in mind that as far as I know in these states there is not a single Negro legislator doing the weighing. The only point before this Court is the law as it was applied in Clarendon County. All we are asking is that the state-imposed racial segregation be stopped, and the County school board be instructed to work out a solution.

Justice Frankfurter: What kind of solution?

Mr. Marshall: They could assign children to schools on any reasonable basis.

Justice Frankfurter: You mean we would have gerrymandering of school districts?

Mr. Marshall: Not gerrymandering, Mr. Justice Frankfurter. The new district lines would simply have to be drawn on a natural basis, without regard to race or color.

Justice Frankfurter: It would be important to me for you spell out exactly what would happen if the Court reverses, and the case goes back to South Carolina.

Mr. Marshall: What is important is that we get the principle established: segregation by race is not legal. It is impossible to say right now precisely how it would work.

Justice Frankfurter: I think it is important to know before one starts out where he is going.

Mr. Marshall: I would like to reserve the remainder of my time.

Scene 7: Original Intention [Scene runs from 00:18:52 to 00:21:56. For those with DVDs, begins three and a half minutes before ch. 4.)

Mr. Davis: (Addressing the Court) Says counsel for the plaintiff, we have the uncontradicted testimony of expert witnesses that segregation is hurtful for children of both the colored and the white races. Now there are experts, and there are experts. Let me read a sentence or two from W.E.B. DuBois, the great Negro educator: (reading from a book) "I have seen wise and loving colored parents take infinite pains to force their little children into schools where white children and white teachers despised and bulled the dark child. Now such parents want their children to fight this thing out, but, dear God, at what a cost!" Dr. DuBois concludes, "we should do better by putting the children in schools where they are wanted than by thrusting them into a hell where they are ridiculed and hated."

Let me come now to what is the crux of this case, that is the meaning and the interpretation of the 14th Amendment to the Constitution of the United States.

Your honors have said that it was your duty (and I quote) "to place ourselves as nearly as possible in the condition of the men who framed the instrument." Now what was the condition of those who framed the instrument? I will tell you. The resolution proposing the 14th Amendment was proffered by Congress in June of 1866. One month later, the same Congress established separate schools for the races right here in the District of Columbia. And from that good day to this, Congress has not wavered in this policy. So clearly the Congress does not believe that the Constitution speaks against segregated schools.

Justice Douglas: What is your answer, Mr. Davis, to the suggestion that the Constitution is a living document, and must be interpreted in relation to the facts at the time it is interpreted?

Mr. Davis: My answer to that, Mr. Justice Douglas, is that changed conditions do not expand the language that the Framers of the Constitution employed. And it is inconceivable that the Congress that passed the 14th Amendment would have forbidden the states to employ an educational plan which Congress itself was employing in the District of Columbia. No court, I respectfully submit, is justified in ignoring that. And over the years this Court has spoken in the most clear and unmistakable terms to the effect that segregation is not unlawful. In Plessy v. Ferguson, and six subsequent cases, the doctrine of separate but equal has been upheld.

So, your honors, I might ask, why should this be a matter of great national policy? Is it not a fact that the very strength and fiber of our federal system is local self-government. I respectfully submit there is no reason why this Court or any other should reverse the findings of ninety years.

Scene 8: Nobody Will Say It [Scene runs from 00:57:32 to 1:02:50. For those with DVDs, it begins roughly three minutes into ch. 13.]

The Court asks the counsels for each side to come back to the Court and to argue the case focusing on the intention of the authors of the 14th Amendment. Mr. Davis speaks before the Court, detailing the efforts that the state of South Carolina has made in the interim to reduce the disparity between the schools in the state, concluding with the thought that while his opponents think what they are proposing is best, the age old motto may apply, that "the best is often the enemy of the good." Mr. Marshall is then given five minutes for rebuttal.

Mr Marshall: May it please the Court. The 14th Amendment was put into our Constitution after one of the worst wars ever fought. The duty of enforcing the 14th Amendment is placed upon this court to make sure that the states in administering their functions disregard little pet feelings about race. The Negroes, who are forced to submit to segregation, are all American citizens, who by accident of birth are a different color. And the color makes no difference one way or another insofar as this court is concerned. Harry Briggs, Jr is guaranteed by the state some 12 years of education. There is no way you can repay lost school years.

But, they say, leave it to the states until they work it out. I got the feeling in hearing the discussion earlier that when you put a white child in a school with a whole lot of colored children, the child will fall apart. Everyone knows that is not true. Those same kids in Virginia and South Carolina–and I have seen them do it–They play in the streets together, they separate to go to school. They come out of school and play ball together, but they have to be separated in school. There must be some magic to it. You can have them going to the same state university and to the same college, but if they go to elementary and high school together, the world will fall apart.

The only way that this Court can decide the case in opposition to our position is to find some reason which gives the state the right to make a classification in regard to Negroes that they can make in regard to nothing else. And, we submit, the only way is to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings. Nobody will stand in this court and say that because they would have to justify it. It can only be one thing, an inherent determination that people who were formerly in slavery shall be kept as near that position as is possible. Now is the time, we submit, that this court should make it clear that this is not what the Constitution of the United States stands for.

(To the Chief Justice): Thank you, sir.

Thank you, Mr. Marshall

Scene 9: The Group For Whom It Was Written [Scene runs from 01:04:08 to 01:05:42. For those with DVDs, it begins one minute into ch. 15.].

Justice Frankfurter's office. He is visited by a young man, who is working as his law clerk.

Law Clerk: How are you getting on with the new Chief?

Justice Frankfurter: I've discovered that he listens, although he is untutored in the law

Law Clerk: Well, it could be argued that that's an ideal combination for a Chief Justice–open minded and flexible. Well, I hope you all get down to it. It's not that tough a call, as I see it.

Justice Frankfurter: For those who do not have to decide it is easy. The humanitarian thing to do is to strike down segregation. But nothing presented to us, neither history nor precedent, offers any help. Jackson wants to toss it to Congress. The authority for enforcing the 14th Amendment--

Law Clerk: Sir, if I may. The Negroes are the group for whom the 14th Amendment was written. It's for their protection. And since 1868, everyone else has come to this Court, invoking the protection of the 14th Amendment. Corporations, Chinese, and aliens, and everybody else come in and claim that they have been denied the equal protection of the laws. They come to the Supreme Court of the United States, and you listen to them. And if you find that their rights have been violated, you take care of them. But when the one group for whose protection the 14th Amendment was written, the Negroes, comes in and asks you for relief, Jackson says, "Yes, your constitutional rights have been violated, but don't come to us, you go across the street, you ask Congress to give you relief, we're not going to give you a damn thing."

Justice Frankfurter: Mark, at Harvard I would have given you an A for that.

Scene 10: Politics and Justice [Scene runs from 00:12:50 to 1:15:18. For those with DVDs, it begins four minutes into ch. 16.]

Justice Frankfurter is working at his desk . He hears a knock on the door.

Justice Frankfurter: (Without looking up from his work) Come in, Mark.

Chief Justice Warren: It's Earl Warren.

Justice Frankfurter: (Rising, and walking over to shake hands) Earl

The two men sit, and the Chief Justice explains why he has come.

Chief Justice Warren: Felix, this court must vote to desegregate. I believe that this is a moral issue–one that goes deep into the soul of our nation. The more I ponder this, the more I believe that the separate but equal idea is based on the concept that the colored race is inferior, and those who sustain it must be willing to acknowledge that. I believe that my vote will make a majority of five. I will assign the writing of the opinion to myself. I hope to write it in a way that will bring others with me. What do I have to do to have you with me?

Justice Frankfurter: You're a man from the hurly-burly of public life, Earl. I'm a man from the private world of the jurist. We both know what is right here, but to you it seems less complicated. Neither history nor legal precedent gives us reason. But there must be times when the Court must be free to interpret the Constitution based on men's feelings for what is right and just. The humanitarian goal will have to do. But if you force a sharply divided decision you will have accomplished no good. You must work to unite the Court.

Chief Justice Warren: How, Felix?

Justice Frankfurter: Jackson. You must persuade him to vote with us, and not to write a separate opinion. You must talk to him, convince him, and then if you are successful, Clark. He should follow. Stanley Reed will be the most difficult.

Chief Justice Warren: Can Reed be turned?

Justice Frankfurter: Only by you. But Jackson first.

Scene 11: Judicial Statesmanship [Scene runs from 01:24:48 to 01:27:16. For those with DVDs, it begins two and a half before the end of ch. 18.]

Justice Reed is sitting at a table alone, and is approached by the Chief Justice.

Chief Justice Warren: You're all by yourself now, Stanley.

Justice Reed: The fact remains this court has been given no evidence that the nation knew a century ago that it was outlawing--

Chief Justice Warren: Stanley, we have eight votes to desegregate. Pause. Each of us is concerned about history. Each of us is reluctant to overrule precedents. But we are convinced that the law in this day and age cannot set equal school children apart. Not in the United States of America.

Justice Reed: This country has been making consistent progress in race relations. This decision could impede that progress, halt the march. (Looking at the opinion that the Chief Justice has written) A piece of paper cannot eradicate the fears, and prides, and prejudices of the people. Earl, if this Court tries to force the Southern states to change over night there will be resistance, litigation, and disobedience, and years of conflict. Believe me.

Chief Justice Warren: Stanley, I'm a politician. I've worked with the people for over thirty years now. I've seen them in police stations, hospitals, unemployment lines. I'm convinced that the people will accept the ruling that fortifies their inner conscience. Let the backbone come from the Court, and it will strengthen the moral backbone of the people who live in conflict. Stanley, a fully united court will send a signal to this nation. I pray that you will see your way clear to join the majority.

Scene 12: The Opinion of the Court [Scene runs from 01:29: 37 to 01: 32:03. For those with DVDs, it begins two minutes and fifteen seconds into ch. 19.]

October, 1953. Justices walk into the Court.

After the Justices take their places, Chief Justice Warren, sitting in the middle, reads the Opinion of the Court.

Chief Justice Warren: 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 approaching this question, we cannot turn the clock back to 1868, when the 14th Amendment was adopted. Or even to 1896, when Plessy v. Ferguson was written. We must consider public education in light of its present place in American life. Only in this way, can we determine if segregation in public schools deprives these young plaintiffs of equal protection of the laws. In these days it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, when the state has undertaken to provide it, is a right which must be made available 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 may be equal, deprive the children of the minority group of equal education opportunities?

We believe, unanimously, that it does. 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.

It is so ordered.

(Gavel)

Justice Frankfurter passes a note to Justice Reed, who opens it. We see the words in the note as he reads it:

Stanley, I am aware of the struggle in your conscience as a citizen of the republic I feel deep gratitude for your share of what I believe to be a great good for our nation. Felix

Justice Reed looks to Justice Frankfurter, and they smile and nod to each other.