Supreme Court had held that it was a denial of the equal protection guaranteed by the Fourteenth Amendment for a state to segregate on the ground of race a student who had been admitted to an institution of higher learning. In Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, segregation on the ground of race in railway dining cars had been held to be an unreasonable regulation violative of the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. Subsequently, in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, segregation of white and colored children in the public schools of the state was held to be a denial of the equal protection clause of the 14th Amendment; and in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, segregation in the public schools of the District of Columbia was held to be violative of the due process clause of the Fifth Amendment. In these cases, the "separate but equal" doctrine adopted in Plessy v. Ferguson [163 U.S. 537, 16 S.Ct. 1144] was held to have no place in modern public education. The combined effect of these decisions of the Supreme Court is to destroy the basis of the decision of the Court of Appeals of Maryland in Durkee v. Murphy, and the decision of this court in Boyer v. Garrett. The Court of Appeals of Maryland based its decision in Durkee v. Murphy on the theory that the segregation of the races in the public parks of Baltimore was within the power of the Board of Park Commissioners of the City to make rules for the preservation of order within the parks; and it was said that the separation of the races was normal treatment in Maryland and that the regulation before the court was justified as an effort on the part of the authorities to avoid any conflict which might arise from racial antipathies. [1,2] It is now obvious, however, that segregation cannot be justified as a means to preserve the public peace merely because the tangible facilities furnished to one race are equal to those furnished to the other. The Supreme Court expressed the opinion in Brown v. Board of Education of Topeka, 347 U.S. 492 to 494, 74 S.Ct. 690 to 691, that it must consider public education in the light of its full development and its present place in American life, and therefore could not turn the clock back to 1896 when Plessy v. Ferguson was written, or base its decision on the tangible factors only of a given situation, but must also take into account the psychological factors recognized at this time, including the feeling of inferiority generated in the hearts and minds of Negro children, when separated solely because of their race from those of similar age and qualification. With this in mind, it is obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police power of the State; for if that power cannot be invoked to sustain racial segregation in the schools, where attendance is compulsory and racial friction may be apprehended from the enforced commingling of the races, it cannot be sustained with respect to public beach and bathhouse facilities, the use of which is entirely optional. The decision in Bolling v. Sharpe also throws strong light on the question before us for it admonishes us that in approaching the solution of problems of this kind we should keep in mind the ideal of equality before the law which characterizes our institutions. The court said, 347 U.S. at pages 499-500, 74 S.Ct. at page 694: "Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race. And in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law. "Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause." Reversed. KEY NUMBER SYSTEM Harry BRIGGS, Jr., et al., Plaintiffs, V. R. W. ELLIOTT et al., Defendants. (132 Federal Supplement) July 15, 1955. Action against board of trustees of school district for declaratory judgment and injunctive relief. The District Court, Per Curiam, held that equal protections clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals. Judgment accordingly. 1. Constitutional Law -220 State may not, either directly or indirectly, deny to any person on account of race the right to attend any school maintained by such state. 2. Constitutional Law 220 If schools maintained by state are open to children of all races, no violation of equal protection of laws is involved, even though children of races voluntarily attend different schools. U.S.C.A.Const. Amend. 14. 3. Constitutional Law 220 Equal protection clause of constitution does not require integration of schools, but merely forbids discrimination, and does not forbid such segregation as occurs as result of voluntary action. U.S.C.A.Const. Amend. 14. 4. Constitutional Law 209 Equal protection clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals. U.S.C.A.Const. Amend. 14. Thurgood Marshall, New York, N. Y., Harold R. Boulware, Columbia, S. C., for plaintiffs. S. E. Rogers, Summerton, S. C., Robert McC. Figg, Jr., Charleston, S. C., for defendants. Before PARKER and DOBIE, Circuit Judges, and TIMMERMAN, District Judge. PER CURIAM. This Court in its prior decisions in this case, 98 F.Supp. 529; 103 F.Supp. 920, followed what it conceived to be the law as laid down in prior decisions of the Supreme Court, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, that nothing in the Fourteenth Amendment to the Constitution of the United States forbids segregation of the races in the public schools provided equal facilities are accorded the children of all races. Our decision has been reversed by the Supreme Court, Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 757, which has remanded the case to us with direcjon "to take such proceedings and enter ach orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases". Whatever may have been the views of this court as to the law when the case was originally before us, it is our duty now to accept the law as declared by the Supreme Court. [1-4] Having said this, it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they tend. What it has decided, and all that has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision o the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court choose the schools they attend. The Contakes away from the people freedom to stitution, in other words, does not require integration. It merely forbids dissegregation as occurs as the result of crimination. It does not forbid such voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individ uals. The Supreme Court has pointed out that the solution of the problem in accord with its decisions is the primary responsibility of school authorities and that the function of the courts is to determine whether action of the school authorities constitutes "good faith implementation of the governing constitutional principles". With respect to the action to be taken under its decision the Supreme Court said: "Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. "While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racial ly nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases. "The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases." The Court is convened to hear any concrete suggestions you may have to make as to the decree that it should enter. Decree This cause coming on to be heard on the motion of plaintiffs for a judgment and decree in accordance with the mandate of the Supreme Court, and the Court having carefully considered the decision of the Supreme Court, the arguments of counsel, and the record heretofore made in this cause: It is ordered that the decree heretofore entered by this Court be set aside and, in accordance with the decision and mandate of the Supreme Court, it is ordered, adjudged and decreed that the provisions of the Constitution and laws of the State of South Carolina requiring segregation of the races in the public schools are null and void because violative of the Fourteenth Amendment to the Constitution of the United States, and that the defendants be and they are hereby restrained and enjoined from refusing on account of race to admit to any school under their supervision any child qualified to enter such school, from and after such time as they may have made the necessary arrangements for admission of children to such school on a non-discriminatory basis with all deliberate speed as required by the decision of the Supreme ourt in this cause. It is further ordered that this cause be retained on the docket for the entry of further orders herein if necessity for same should arise. Philip Wittenberg, Columbia, S. C., and Robert L. Carter, New York City (Thurgood Marshall, New York City, and Spottswood W. Robinson, III, Richmond, Va., on brief), for appellant. Frank B. Gary and Frank K. Sloan, Columbia, S. C. (Paul A. Cooper, Columbia, S. C., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PER CURIAM. This is an action for damages brought by a Negro woman against a bus company because the driver of the bus required her to change her seat in accordance with the segregation law of South Carolina applicable to motor vehicle carriers, South Carolina Code 1952, §§ 581491 to 58-1496, which she claimed to be violative of her rights under the 14th Amendment to the Federal Constitution. There was no diversity of citizenship, and defendant challenged the jurisdiction of the court to entertain the action under the Civil Rights Acts, 42 U.S.C.A. SS 1981, 1983 and 28 U.S.C. § 1343(3). The trial judge, without discussing the question of jurisdiction, dismissed the case on the ground that state statutes complained of were valid under the decision of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. See Flemming v. South Carolina Electric & Gas Co., D.C., 128 F.Supp. 469. The correctness of that ruling as well as the question of jurisdiction are presented by the appeal. [1] We do not think that the separate but equal doctrine of Plessy v. Ferguson, supra, can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.Ed. 884, which relate to public schools, leave no doubt that the separate but equal doctrine approved in |