Separate But Equal originally
was shown in two parts, first and second nights. DVDs are divided
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
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
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
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
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
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
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
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
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
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
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.
Scene 5: Changes [Scene runs from 1:32:05 to
1:34:12. For those with DVDs, it begins two minutes and 42 seconds
before the end of ch. 19.]
Office of Attorney, John W. Davis. His daughter comes to speak
Julia: Good morning, father
Mr. Davis: (Looking up from his work)
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
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
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
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
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
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
(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
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
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
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,
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.
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.