In the Brown decision, the Supreme Court did no more than announce that segregation violated the Equal Protection Clause of the Constitution. Recognizing that implementing this decree would be difficult, the Court invited the southern states and the federal government to suggest what course should be followed. In what is known as Brown II, the Court called upon the southern states to desegregate its schools with "all deliberate speed."

The Supreme Court has the power neither of the sword nor the purse, and so it relies upon its moral authority for enforcement of its decrees, or on the aid of the president and Congress. In the years following the two Brown decisions, however, neither the executive nor the legislative branches moved to assist the Court; President Dwight Eisenhower believed that the federal government should not interfere in state matters, while southerners in Congress prevented any action by that body. The southern states adopted a variety of measures to delay desegregation or to evade the decree altogether.

But finally President Eisenhower was forced to act. In the fall of 1957, the school board of Little Rock, Arkansas, agreed to a court order to admit black students to Central High School. The governor of the state, Orville Faubus, called out the National Guard to prevent the students from entering, and when the court again ordered the students admitted, Faubus withdrew the troops. But when the students tried to enroll, a mob attacked the school and drove them off. Eisenhower could no longer sit by passively and watch federal authority flouted. He ordered a thousand paratroopers into Little Rock, put ten thousand Arkansas national guardsmen under federal control and used the troops to protect the black students and to maintain order in the school.

Eisenhower withdrew the troops at the end of the school year, and then the Supreme Court, for the first time since Brown II, spoke out on desegregation in Cooper v. Aaron, a case arising out of the Arkansas turmoil. The state had argued that it was not bound by the Court's decision, since it had not been a party to the original suit; beyond that, Arkansas claimed that a governor of a state had the same power to interpret the Constitution as did the Supreme Court.

The Court not only reaffirmed the ruling in Brown that segregation was unconstitutional, but in an unusual step issued an opinion signed by all nine justices. In the decision, the Court reasserted its authority as the ultimate interpreter of the Constitution, and it reminded Arkansas and the nation that ever since 1803 it had been, in Chief Justice John Marshall's phrase, "the province and duty of the judicial department to say what the law is."

The case marked the end of the waiting period, during which time the Court had given southern states time to accept Brown and start desegregating schools; now the Court indicated its impatience with delay. The law required that segregation end, and in a series of cases following Cooper, the justices handed down one decision after another ordering schools to begin implementing desegregation.

For further reading: Tony Freyer, The Little Rock Crisis (1984); Benjamin Muse, Ten Years of Prelude (1964).


Opinion of the Court by the Chief Justice and Justices Black, Frankfurter, Douglas, Burton, Clark, Harlan, Brennan, and 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... 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 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 judgement of the Court of Appeals for the Eighth District of Arkansas...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 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 judgement, reserving the expression of our supporting views to a later date. This opinion of all of the members of the Court embodies those views...

In affirming the judgement of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the Superintendent of Schools, and their counsel that they dis-played 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 find-ings 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 the light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislatures 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 vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial process 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 that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult or impossible by the actions of other state officials. The situation here is 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 the rights created or protected by the Federal Constitution." Buchanan v. Warley... 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...

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.

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 States 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."...

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 judgements of the courts of the United States, and destroy the rights acquired under those judgements, the constitution itself becomes a solemn mockery..." United States v. Peters... A Governor who asserts a 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 restriction of the Federal Constitution upon the exercise of state power would be but impotent phrases..." Sterling v. Constantin...

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... 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 and the obedience of the States to them, according to the command of the Constitution, 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.

Source: 358 U.S. 1 (1958).

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