Cooper v. Aaron

No. 1

Argued September 11, 1958

Decided September 12, 1958 *

Opinion announced September 29, 1958

358 U.S. 1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus



Under a plan of gradual desegregation of the races in the public schools

of Little Rock, Arkansas, adopted by petitioners and approved by the

courts below, respondents, Negro children, were ordered admitted to a

previously all-white high school at the beginning of the 1957-1958

school year.  Due to actions by the Legislature and Governor of the

State opposing desegregation, and to threats of mob violence resulting

therefrom, respondents were unable to attend the school until troops

were sent and maintained there by the Federal Government for their

protection; but they [358 U.S. 2] attended the school for the remainder

of that school year.  Finding that these events had resulted in

tensions, bedlam, chaos and turmoil in the school, which disrupted the

educational process, the District Court, in June, 1958, granted

petitioners' request that operation of their plan of desegregation be

suspended for two and one-half years, and that respondents be sent back

to segregated schools.  The Court of Appeals reversed.



Held:  The judgment of the Court of Appeals is affirmed, and the orders

of the District Court enforcing petitioners' plan of desegregation are

reinstated, effective immediately.



1. This Court cannot countenance 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 in Brown v. Board of Education, 347 U.S. 483.



2. This Court rejects the contention that it should 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

its holding in the Brown case have been further challenged and tested in

the courts.



3. In many locations, obedience to the duty of desegregation will

require the immediate general admission of Negro children, otherwise

qualified as students for their appropriate classes at particular

schools.



4. If, after analysis of the relevant factors (which, of course,

excludes hostility to racial desegregation), a District Court concludes

that justification exists for not requiring the present nonsegregated

admission of all qualified Negro children to public schools, it should

scrutinize the program of the school authorities to make sure that they

have developed arrangements pointed toward the earliest practicable

completion of desegregation, and have taken appropriate steps to put

their program into effective operation.



5. The petitioners stand in this litigation as the agents of the State,

and they cannot assert their good faith as an excuse for delay in

implementing the respondents' constitutional rights when vindication of

those rights has been rendered difficult or impossible by the actions of

other state officials.



6. The constitutional rights of respondents are not to be sacrificed or

yielded to the violence and disorder which have followed [358 U.S. 3]

upon the actions of the Governor and Legislature, and law and order are

not here to be preserved by depriving the Negro children of their

constitutional rights.



7. 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 neither 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."



8. 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."



9. No state legislator or executive or judicial officer can war against

the Constitution without violating his solemn oath to support it.



10. State support of segregated schools through any arrangement,

management, funds or property cannot be squared with the command of the

Fourteenth Amendment that no State shall deny to any person within its

jurisdiction the equal protection of the laws.



257 F. 2d 33, affirmed. [358 U.S. 4] BLACK, J., lead 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 BRENNAN, and MR. JUSTICE

WHITTAKER.



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 Little

Rock until state laws and efforts to upset and nullify our holding in

Brown v. 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 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 [358 U.S. 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 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 enjoined by the Fourteenth Amendment.  Brown v. Board of Education,

[358 U.S. 6] 347 U.S. 483.  The Court postponed, pending further

argument, formulation of a decree to effectuate this decision.  That

decree was rendered May 31, 1955.  Brown v. Board of Education, 349 U.S.

294.  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. Id.

at 300.  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 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 U.S. at  [358 U.S. 7]



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 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 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

United States outlines the method to be followed. [358 U.S. 8]



Thereafter, 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 approved such a plan on May 24, 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, 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

Unconstitutional [358 U.S. 9] desegregation decisions of May 17, 1954,

and May 31, 1955, of the United States Supreme Court, Ark.Const.Amend.

44, and, through the initiative, a pupil assignment law, Ark.Stats. 

80-1519 to 80-1524.  Pursuant to this state constitutional command, a

law relieving school children from compulsory attendance at racially

mixed schools, Ark.Stats.  80-1525, and a law establishing a State

Sovereignty Commission, Ark.Stats.  6-801 to 6-824, 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 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 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 [358 U.S. 10] steps by the Little Rock police to prevent any

possible disturbances or acts of violence in connection with the

attendance of the 9 colored students at Central High School.  The Mayor

considered that the Little Rock police force 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.

Aaron v. Cooper, 156 F.Supp. 220, 225.



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 [358 U.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 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 [358 U.S. 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. United States, 254

F.2d 797.  The National Guard was then withdrawn from the school.



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 United States

dispatched federal troops to Central High School, and admission of the

Negro students to the school was thereby effected.  Regular army troops

continued at the high school until November 27, 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 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

Central High School, with the Negro students in attendance, would be

impossible.  The Board therefore proposed that the Negro students

already admitted to the school be withdrawn [358 U.S. 13] 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 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 U.S. 566.  The Court of

Appeals did not act on the petition for a stay, but, on August 18, 1958,

after convening in special session on August 4 and hearing the appeal,

reversed the District Court, 257 F.2d 33.  On August 21, 1958, the Court

of Appeals stayed its mandate [358 U.S. 14] 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 23,

1958, applied to MR. JUSTICE WHITTAKER, as Circuit Justice for the

Eighth Circuit, to stay the order of the Court of Appeals withholding

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, see Aaron

v. Cooper, 357 U.S. 566, 567, we convened in Special Term on August 28,

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 curiae, 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 8,

1958, as the day on or before which such petition might be filed, and

September 11, 1958, for oral argument upon the petition.  The petition

for certiorari, duly filed, was granted in open Court on September 11,

1958, 358 U.S. 29, and further arguments were had, the Solicitor General

again urging the correctness of the judgment of the Court of Appeals. 

On September 12, 1958, as already mentioned, we unanimously affirmed the

judgment of the Court of Appeals in the per curiam opinion set forth in

the margin at the outset of this opinion.



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 [358 U.S. 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 Central High

School during the 1957-1958 school year, and also the findings that the

educational progress of all 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

villifying 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 [358 U.S. 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 of 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.



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, this

aim cannot be accomplished by laws or ordinances which deny rights

created or protected by the federal Constitution. Buchanan v. Warley,

245 U.S. 60, 81.  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

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 [358 U.S. 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 U.S.

339, 347.  Thus, the prohibitions of the Fourteenth Amendment extend to

all action of the State denying equal protection of the laws; whatever

the agency of the State taking the action, see Virginia v. Rives, 100

U.S. 313; Pennsylvania v. Board of Directors of City Trusts of

Philadelphia, 353 U.S. 230; Shelley v. Kraemer, 334 U.S. 1; or whatever

the guise in which it is taken, see Derrington v. Plummer, 240 F.2d 922;

Department of Conservation and Development v. Tate, 231 F.2d 615.  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 neither be nullified openly and directly by

state legislators or state executive or judicial officers nor nullified

indirectly by them through evasive schemes for segregation whether

attempted "ingeniously or ingenuously."  Smith v. Texas, 311 U.S. 128,

132.



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. [358 U.S. 18]



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, 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 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.



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 United States, and destroy the rights acquired under

those judgments, the constitution itself becomes a solemn mockery. . . .

United States v. Peters, 5 Cranch 115, 136.  A Governor who asserts a

[358 U.S. 19] 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, it is 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. . . . Sterling v. Constantin, 287 U.S. 378, 397-398.



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 U.S. 497.  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, [358 U.S. 20] 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. FRANKFURTER, J.,

concurring



Concurring opinion of MR. JUSTICE FRANKFURTER.



While unreservedly participating with my brethren in our joint opinion,

I deem it appropriate also to deal individually with the great issue

here at stake.



By working together, by sharing in a common effort, men of different

minds and tempers, even if they do not reach agreement, acquire

understanding and thereby tolerance of their differences.  This process

was under way in Little Rock.  The detailed plan formulated by the

Little Rock School Board, in the light of local circumstances, had been

approved by the United States District Court in Arkansas as satisfying

the requirements of this Court's decree in Brown v. Board of Education,

349 U.S. 294.  The Little Rock School Board had embarked on an

educational effort "to obtain public acceptance" of its plan.  Thus, the

process of the community's accommodation to new demands of law upon it,

the development of habits of acceptance of the right of colored children

to the equal protection of the laws guaranteed by the Constitution,

Amend. 14, had peacefully and promisingly begun.  The condition in

Little Rock before this process was forcibly impeded by those in control

of the government of Arkansas was thus described by the District Court,

and these findings of fact have not been controverted:



14. Up to this time, 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 [358 U.S. 21]

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 9 colored students at Central High School.  The Mayor

considered that the Little Rock police force 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. 156

F.Supp. 220, 225.



All this was disrupted by the introduction of the state militia and by

other obstructive measures taken by the State.  The illegality of these

interferences with the constitutional right of Negro children qualified

to enter the Central High School is unaffected by whatever action or

nonaction the Federal Government had seen fit to take.  Nor is it

neutralized by the undoubted good faith of the Little Rock School Board

in endeavoring to discharge its constitutional duty.



The use of force to further obedience to law is, in any event, a last

resort, and one not congenial to the spirit of our Nation.  But the

tragic aspect of this disruptive tactic was that the power of the State

was used not to sustain law, but as an instrument for thwarting law. 

The State of Arkansas is thus responsible for disabling one [358 U.S.

22] of its subordinate agencies, the Little Rock School Board, from

peacefully carrying out the Board's and the State's constitutional duty.

 Accordingly, while Arkansas is not a formal party in these proceedings

and a decree cannot go against the State, it is legally and morally

before the Court.



We are now asked to hold that the illegal, forcible interference by the

State of Arkansas with the continuance of what the Constitution

commands, and the consequences in disorder that it entrained, should be

recognized as justification for undoing what the School Board had

formulated, what the District Court in 1955 had directed to be carried

out, and what was in process of obedience.  No explanation that may be

offered in support of such a request can obscure the inescapable meaning

that law should bow to force.  To yield to such a claim would be to

enthrone official lawlessness, and lawlessness, if not checked, is the

precursor of anarchy.  On the few tragic occasions in the history of the

Nation, North and South, when law was forcibly resisted or

systematically evaded, it has signaled the breakdown of constitutional

processes of government on which ultimately rest the liberties of all. 

Violent resistance to law cannot be made a legal reason for its

suspension without loosening the fabric of our society.  What could this

mean but to acknowledge that disorder under the aegis of a State has

moral superiority over the law of the Constitution?  For those in

authority thus to defy the law of the land is profoundly subversive not

only of our constitutional system, but of the presuppositions of a

democratic society.  The State "must . . . yield to an authority that is

paramount to the State."  This language of command to a State is Mr.

Justice Holmes', speaking for the Court that comprised Mr. Justice Van

Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice

Sutherland, [358 U.S. 23] Mr. Justice Butler and Mr. Justice Stone. 

Wisconsin v. Illinois, 281 U.S. 179, 197.



When defiance of law, judicially pronounced, was last sought to be

justified before this Court, views were expressed which are now

especially relevant:



The historic phrase "a government of laws, and not of men " epitomizes

the distinguishing character of our political society.  When John Adams

put that phrase into the Massachusetts Declaration of Rights, he was not

indulging in a rhetorical flourish.  He was expressing the aim of those

who, with him, framed the Declaration of Independence and founded the

Republic.  "A government of laws, and not of men," was the rejection in

positive terms of rule by fiat, whether by the fiat of governmental or

private power.  Every act of government may be challenged by an appeal

to law, as finally pronounced by this Court.  Even this Court has the

last say only for a time.  Being composed of fallible men, it may err. 

But revision of its errors must be by orderly process of law.  The Court

may be asked to reconsider its decisions, and this has been done

successfully again and again throughout our history.  Or what this Court

has deemed its duty to decide may be changed by legislation, as it often

has been, and, on occasion, by constitutional amendment.



But, from their own experience and their deep reading in history, the

Founders knew that Law alone saves a society from being rent by

internecine strife or ruled by mere brute power however disguised. 

"Civilization involves subjection of force to reason, and the agency of

this subjection is law."  (Pound, The Future of Law (1937) 47 Yale L.J.

1, 13.)  The conception of a government by laws dominated the thoughts

of those who founded this [358 U.S. 24] Nation and designed its

Constitution, although they knew as well as the belittlers of the

conception that laws have to be made, interpreted and enforced by men. 

To that end, they set apart a body of men who were to be the

depositories of law, who, by their disciplined training and character

and by withdrawal from the usual temptations of private interest, may

reasonably be expected to be "as free, impartial, and independent as the

lot of humanity will admit."  So strongly were the framers of the

Constitution bent on securing a reign of law that they endowed the

judicial office with extraordinary safeguards and prestige.  No one, no

matter how exalted his public office or how righteous his private

motive, can be judge in his own case.  That is what courts are for.

United States v. United Mine Workers, 330 U.S. 258, (concurring

opinion).



The duty to abstain from resistance to "the supreme Law of the Land,"

U.S.Const., Art. VI,  2, as declared by the organ of our Government for

ascertaining it, does not require immediate approval of it, nor does it

deny the right of dissent.  Criticism need not be stilled.  Active

obstruction or defiance is barred.  Our kind of society cannot endure if

the controlling authority of the Law as derived from the Constitution is

not to be the tribunal specially charged with the duty of ascertaining

and declaring what is "the supreme Law of the Land."  See President

Andrew Jackson's Message to Congress of January 16, 1833, II Richardson,

Messages and Papers of the Presidents (1896 ed.) 610, 623.  Particularly

is this so where the declaration of what "the supreme Law" commands on

an underlying moral issue is not the dubious pronouncement of a gravely

divided Court, but is the unanimous conclusion of a long-matured

deliberative process.  The Constitution is not the formulation of the

[358 U.S. 25] merely personal views of the members of this Court, nor

can its authority be reduced to the claim that state officials are its

controlling interpreters.  Local customs, however hardened by time, are

not decreed in heaven.  Habits and feelings they engender may be

counteracted and moderated.  Experience attests that such local habits

and feelings will yield, gradually though this be, to law and education.

 And educational influences are exerted not only by explicit teaching. 

They vigorously flow from the fruitful exercise of the responsibility of

those charged with political official power, and from the almost

unconsciously transforming actualities of living under law.



The process of ending unconstitutional exclusion of pupils from the

common school system -- "common" meaning shared alike -- solely because

of color is no doubt not an easy, overnight task in a few States where a

drastic alteration in the ways of communities is involved.  Deep

emotions have, no doubt, been stirred.  They will not be calmed by

letting violence loose -- violence and defiance employed and encouraged

by those upon whom the duty of law observance should have the strongest

claim -- nor by submitting to it under whatever guise employed.  Only

the constructive use of time will achieve what an advanced civilization

demands and the Constitution confirms.



For carrying out the decision that color alone cannot bar a child from a

public school, this Court has recognized the diversity of circumstances

in local school situations.  But is it a reasonable hope that the

necessary endeavors for such adjustment will be furthered, that racial

frictions will be ameliorated, by a reversal of the process and

interrupting effective measures toward the necessary goal?  The progress

that has been made in respecting the constitutional rights of the Negro

children, according to the graduated plan sanctioned by the two [358

U.S. 26] lower courts, would have to be retraced, perhaps with even

greater difficulty because of deference to forcible resistance.  It

would have to be retraced against the seemingly vindicated feeling of

those who actively sought to block that progress.  Is there not the

strongest reason for concluding that to accede to the Board's request,

on the basis of the circumstances that gave rise to it, for a suspension

of the Board's nonsegregation plan, would be but the beginning of a

series of delays calculated to nullify this Court's adamant decisions in

the Brown case that the Constitution precludes compulsory segregation

based on color in state-supported schools?



That the responsibility of those who exercise power in a democratic

government is not to reflect inflamed public feeling, but to help form

its understanding, is especially true when they are confronted with a

problem like a racially discriminating public school system.  This is

the lesson to be drawn from the heartening experience in ending enforced

racial segregation in the public schools in cities with Negro

populations of large proportions.  Compliance with decisions of this

Court, as the constitutional organ of the supreme Law of the Land, has

often, throughout our history, depended on active support by state and

local authorities.  It presupposes such support.  To withhold it, and

indeed to use political power to try to paralyze the supreme Law,

precludes the maintenance of our federal system as we have known and

cherished it for one hundred and seventy years.



Lincoln's appeal to "the better angels of our nature" failed to avert a

fratricidal war.  But the compassionate wisdom of Lincoln's First and

Second Inaugurals bequeathed to the Union, cemented with blood, a moral

heritage which, when drawn upon in times of stress and strife, is sure

to find specific ways and means to surmount difficulties that may appear

to be insurmountable. Footnotes BLACK, J., lead opinion (Footnotes)



* NOTE:  The per curiam opinion announced on September 12, 1958, and

printed in a footnote, post, p. 5, applies not only to this case but

also to No. 1, Misc., August Special Term, 1958, Aaron et al. v. Cooper

et al., on application for vacation of order of the United States Court

of Appeals for the Eighth Circuit staying issuance of its mandate, for

stay of order of the United States District Court for the Eastern

District of Arkansas, and for such other orders as petitioners may be

entitled to, argued August 28, 1958.



** 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, 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, 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.

