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Supreme Court of the United States
Argued Oct. 11, 12, 1944.
Decided Dec. 18, 1944.
Rehearing Denied Feb. 12, 1945.
324 U.S. 885, 65 S.Ct. 674.
Fred Toyosaburo Korematsu was convicted of remaining in a portion of a military area from which persons of Japanese ancestry had been ordered excluded, and to review a judgment, 140 F.2d 289, affirming his conviction, he brings certiorari.
Affirmed.
Mr. Justice ROBERTS, Mr. Justice MURPHY and Mr. Justice JACKSON dissenting.
On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit.
On certiorari to review conviction of violating order excluding persons of Japanese ancestry from war area,
Supreme Court would not determine validity of provisions for reporting and remaining in assembly or relocation centers, which defendant was not convicted of violating 18 U.S.C.A. § 1383.
**193 *215 Mr. Wayne M. Collins, of San Francisco, Cal., and Mr. Charles A. Horsky, of Washington,
D.C., for petitioner.
**194 Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a ‘Military Area’, contrary to Civilian Exclusion Order No. 34 of the
Commanding General *216 of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,FN1 and the importance of the constitutional question involved caused us to grant certiorari.
[1] [2] It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
In the instant case prosecution of the petitioner was begun by information charging violation of an Act of
Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. s 97a, which provides that
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“ * * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.”
Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially*217 based upon Executive Order No.
9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to nationaldefense material, national-defense premises, and national-defense utilities. * * *”
One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed
West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.
The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the
Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
[3] In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude *218 those of Japanese ancestry from
**195 the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.
In this case the petitioner challenges the assumptions upon which we rested our conclusions in the
Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of
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Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them.
Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, 87 L.Ed. 1774, “* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”
Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of *219 whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United
States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.FN2
[4] [5] We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf.
Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841; Block v. Hirsh, 256
U.S. 135, 154, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69,
73, 63 S.Ct. 115, 117, 87 L.Ed. 58. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory
*220 exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
[6] [7] It is argued that on May 30, 1942, **196 the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.
There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time “until and to the extent that a future proclamation or order should so permit or direct.” 7 Fed.Reg. 2601. That ‘future order’, the one for violation
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of which petitioner was convicted, was issued May 3, 1942, and it did ‘direct’ exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of
Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence.
There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the
March 27 and May 3rd orders, whether he remained in or left the area.
It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had
*221 already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as ‘assembly centers', in order “to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.” Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order
No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers.
It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.
[8] [9] [10] We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear *222 when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry
(1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284
U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses.
The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283, 65 S.Ct. 208, graphically illustrates**197 the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected.
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[11] Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us.
Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion *223 Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.
It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the
United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers-and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies-we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders-as inevitably it must-determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for *224 action was great, and time was short. We cannot-by availing ourselves of the calm perspective of hindsight-now say that at that time these actions were unjustified.
Affirmed.
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Supreme Court of the United States
No. 236.
Argued March 29, 1961.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961.
Prosecution for possession and control of obscene material. An Ohio Common Pleas Court rendered judgment, and the defendant appealed. The Ohio Supreme Court, 170 Ohio St. 427, 166 N.E.2d 387, affirmed the judgment, and the defendant again appealed. The Supreme Court, Mr. Justice Clark, held that evidence obtained by unconstitutional search was inadmissible and vitiated conviction.
Reversed and remanded.
. U.S.C.A.Const. Amends. 4, 14.
Mr. A. L. Kearns, Cleveland, Ohio, for appellant.
Mr. Bernard A. Berkman, Cleveland, Ohio, for American Civil Liberties Union and the Ohio Civil Liberties
Union, as amici curiae.
Mrs. ,Gertrude Bauer Mahon, Cleveland, Ohio, for appellee.
Mr. Justice CLARK delivered the opinion of the Court.
Appellant stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of s 2905.34 of Ohio's Revised Code.FN1 As officially stated in the syllabus to its opinion, the Supreme Court of Ohio found that her conviction was valid though ‘based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home * * *.’ 170 Ohio St. 427-428, 166 N.E.2d
387, 388.
FN1. The statute provides in pertinent part that‘No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book (or) * * * picture * * *.‘Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.’
On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that ‘a person (was) hiding out in the home, who was wanted for questioning in connection with
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a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home.’ Miss
Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional officers arrived on the **1686 scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly openedFN2 and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their definance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the ‘warrant’ and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been
‘belligerent’ *645 in resisting their official rescue of the ‘warrant’ from her person. Running roughshod over appellant, a policeman ‘grabbed’ her, ‘twisted (her) hand,’ and she ‘yelled (and) pleaded with him’ because
‘it was hurting.’ Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, ‘There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home.’ 170 Ohio St. at page 430, 166 N.E.2d at page 389. The Ohio
Supreme Court believed a ‘reasonable argument’ could be made that the conviction should be reversed
‘because the ‘methods' employed to obtain the (evidence) were such as to ‘offend ‘a sense of justice,“’ but the court found determinative the fact that the evidence had not been taken ‘from defendant's person by the use of brutal or offensive physical force against defendant.’ 170 Ohio St. at page 431, 166 N.E.2d at pages
389-390.
The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. People of State of
Colorado, 1949, 338 U.S. 25, at page 33, 69 S.Ct. 1359. at page 1364, 93 L.Ed. 1782, in which this Court did indeed hold ‘that in a prosecution in a State court for a State crime the Fourteenth Amendment*646 does not forbid the admission of evidence obtained by an unreasonable search and seizure.’ On this appeal, of which we have noted probable jurisdiction, 364 U.S. 868, 81 S.Ct. 111, 5 L.Ed.2d 90, it is urged once again that we review that holding.FN3
Seventy-five years ago, in Boyd v. United States, 1886, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, considering the **1687 FourthFN4 and Fifth Amendments as running ‘almost into each other'FN5 on the facts before it, this Court held that the doctrines of those Amendments
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'apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, *647 that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property * * *. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation * * * (of those
Amendments).'
The Court noted that:
'constitutional provisions for the security of person and property should be liberally construed. * * * It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' At page 635 of 116 U.S., at page 535 of 6 S.Ct.
In this jealous regard for maintaining the integrity of individual rights, the Court gave life to Madison's prediction that ‘independent tribunals of justice * * * will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.’ I Annals of Cong. 439 (1789).
Concluding, the Court specifically referred to the use of the evidence there seized as ‘unconstitutional.’ At page 638 of 116 U.S., at page 536 of 6 S.Ct.
Less than 30 years after Boyd, this Court, in Weeks v. United States, 1914, 232 U.S. 383, at pages 391-392,
34 S.Ct. 341, at page 344, 58 L.Ed. 652, stated that:
'the 4th Amendment * * * put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints (and) * * * forever secure(d) the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law * * * and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.'
Specifically dealing with the use of the evidence unconstitutionally seized, the Court concluded:
‘If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken **1688 from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.’ At page
393 of 232 U.S., at page 344 of 34 S.Ct.
Finally, the Court in that case clearly stated that use of the seized evidence involved ‘a denial of the constitutional rights of the accused.’ At page 398 of 232 U.S., at page 346 of 34 S.Ct. Thus, in the year 1914, in the Weeks case, this Court ‘for the first time’ held that ‘in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.’ Wolf v. People of State of
Colorado, supra, 338 U.S. at page 28, 69 S.Ct. at page 1361. This Court has ever since required of federal
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law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required-even if judically implied-deterrent safeguard without insistence upon which the
Fourth Amendment would have been reduced to ‘a form of words.’ Holmes J., Silverthorne Lumber Co. v.
United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. It meant, quite simply, that
‘conviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgments of the courts * * *,’ Weeks v. United States, supra, 232 U.S. at page 392, 34 S.Ct. at page 344, and that such evidence ‘shall not be used at all.’ Silverthorne Lumber Co. v. United States, supra, 251 U.S. at page 392, 40 S.Ct. at page 183.
[1] There are in the cases of this Court some passing references to the Weeks rule as being one of evidence. But the plain and unequivocal language of Weeks-and its later paraphrase in Wolf-to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed. In Byars v. United States, 1927, 273
U.S. 28, at pages 29-30, 47 S.Ct. 248, at pages 248-249, 71 L.Ed. 520, a unanimous Court declared that ‘the doctrine (cannot) * * * be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed.’ (Emphasis added.) The Court, in Olmstead v. United
States, 1928, 277 U.S. 438, at page 462, 48 S.Ct. 564, 567, 72 L.Ed. 944, in unmistakable language restated the Weeks rule:
‘The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the
Fourth Amendment, although not referring to or limiting the use of evidence in court, really forbade its introduction if obtained by government officers through a violation of the amendment.’
In McNabb v. United States, 1943, 318 U.S. 332, at pages 339-340, 63 S.Ct. 608, at page 612, 87 L.Ed. 819, we note this statement:
‘(A) conviction in the federal courts, the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand. Boyd v. United States * * * Weeks v. United States *
* *. And this Court has, on Constitutional grounds, set aside convictions, both in the federal and state courts, which were based upon confessions ‘secured by protracted and repeated questioning of ignorant and untutored persons, in whose minds the power of officers was greatly magnified’*650 * * * or ‘who have been unlawfully held incommunicado without advice of friends or counsel’ * * *.'
Significantly, in McNabb, the Court did then pass on to formulate a rule of evidence, saying, ‘(i)n the view we take of **1689 the case, however, it becomes unnecessary to reach the Constitutional issue (for) * * *
(t)he principles governing the admissibility of evidence in federal criminal trials have not been restricted * *
* to those derived solely from the Constitution.’ At pages 340-341 of 318 U.S., at page 613 of 63 S.Ct.
In 1949, 35 years after Weeks was announced, this Court, in Wolf v. People of State of Colorado, supra, again for the first time,FN6 discussed the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said:
‘(W)e have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.’ At page 28 of 338 U.S., at page
1361 of 69 S.Ct.
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Nevertheless, after declaring that the ‘security of one's privacy against arbitrary intrusion by the police’ is
‘implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due
Process Clause,' cf. Palko v. State of Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and announcing that it ‘stoutly adhere(d)’ to the Weeks decision, the Court decided that the Weeks exclusionary rule would not then be imposed upon the States as ‘an essential ingredient of the right.’ 338 U.S. at pages 27-
29, 69 S.Ct. at page 1362. The Court's reasons for not considering essential to the *651 right to privacy, as a curb imposed upon the States by the Due Process Clause, that which decades before had been posited as part and parcel of the Fourth Amendment's limitations upon federal encroachment of individual privacy, were bottomed on factual considerations.
While they are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the
Fourth Amendment as the right it embodies is vouchsafed against the States by the Due Process Clause, we will consider the current validity of the factual grounds upon which Wolf was based.
The Court in Wolf first stated that ‘(t)he contrariety of views of the States' on the adoption of the exclusionary rule of Weeks was ‘particularly impressive’ (338 U.S. at page 29, 69 S.Ct. at page 1362); and, in this connection that it could not ‘brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy * * * by overriding the (States') relevant rules of evidence.’ At pages 31-32 of 338 U.S., at page 1363 of 69 S.Ct. While in 1949, prior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it, by their own legislative or judicial decision, have wholly or partly adopted or adhered to the Weeks rule. See Elkins v. United States, 1960, 364 U.S. 206, Appendix, at pages 224-232, 80 S.Ct. 1437, at pages 1448-1453, 4 L.Ed.2d 1669. Significantly, among those now following the rule is California, which, according to its highest court, was ‘compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions * * *.’ People v. Cahan, 1955, 44 Cal.2d 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that ‘other means of protection’ have been afforded **1690 ‘the *652 right to privacy.'FN7 338 U.S. at page 30, 69 S.Ct. at page 1362. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other
States. The obvious futility of relegating the Fourth Amendment of the protection of other remedies has, moreover, been *653 recognized by this Court since Wolf. See Irvine v. People of State of California, 1954,
347 U.S. 128, 137, 74 S.Ct. 381, 385, 98 L.Ed. 561.
Likewise, time has set its face against what Wolf called the ‘weighty testimony’ of People v. Defore,
1926, 242 N.Y. 13, 150 N.E. 585. There Justice (then Judge) Cardozo, rejecting adoption of the Weeks exclusionary rule in New York, had said that ‘(t)he Federal rule as it stands is either too strict or too lax.’ 242
N.Y. at page 22, 150 N.E. at page 588. However, the force of that reasoning has been largely vitiated by later decisions of this Court. These include the recent discarding of the ‘silver platter’ doctrine which allowed federal judicial use of evidence seized in violation of the Constitution by state agents, Elkins v. United
States, supra; the relaxation of the formerly strict requirements as to standing to challenge the use of evidence thus seized, so that now the procedure of exclusion, ‘ultimately referable to constitutional safeguards,’ is available to anyone even ‘legitimately on (the) premises' unlawfully searched, Jones v. United
States, 1960, 362 U.S. 257, 266-267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697; and finally, the formulation of a
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method to prevent state use of evidence unconstitutionally seized by federal agents, Rea v. United States,
1956, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233. Because there can be no fixed formula, we are admittedly met with ‘recurring questions of the reasonableness of searches,’ but less is not to be expected when dealing with a Constitution, and, at any rate, ‘(r) easonableness is in the first instance for the (trial court) to determine.’ **1691 United States v. Rabinowitz, 1950, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653.
It, therefore, plainly appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the
States in 1949, while not basically relevant to the constitutional consideration, could not, in any analysis, now be deemed controlling.
[3] [4] Some five years after Wolf, in answer to a plea made here Term after Term that we overturn its doctrine on applicability of the Weeks exclusionary rule, this Court indicated that such should not be done until the States had ‘adequate opportunity to adopt or reject the (Weeks) rule.’ Irvine v. People of State of
California, supra, 347 U.S. at page 134, 74 S.Ct. at page 384. There again it was said:
‘Never until June of 1949 did this Court hold the basic search-and-seizure prohibition in any way applicable to the states under the Fourteenth Amendment.’ Ibid.
And only last Term, after again carefully re-examining the Wolf doctrine in Elkins v. United States, supra, the Court pointed out that ‘the controlling principles' as to search and seizure and the problem of admissibility ‘seemed clear’ (364 U.S. at page 212, 1441 of 80 S.Ct.) until the announcement in Wolf ‘that the Due Process Clause of the Fourteenth Amendment does not itself require state courts to adopt the exclusionary rule’ of the Weeks case. At page 213 of 364 U.S., at page 1442 of 80 S.Ct. At the same time, the Court pointed out, ‘the underlying constitutional doctrine which Wolf established * * * that the Federal
Constitution * * * prohibits unreasonable searches and seizures by state officers' had undermined the
‘foundation upon which the admissibility of state-seized evidence in a federal trial originally rested * * *.’
Ibid. The Court concluded that it was therefore obliged to hold, although it chose the narrower ground on which to do so, that all evidence obtained by an unconstitutional search and seizure was inadmissible in a federal court regardless of its source. Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only *655 courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the
Constitution is, by that same authority, inadmissible in a state court.
[5] Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be ‘a form of words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so epemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom ‘implicit in ‘the concept of ordered liberty.“ At the time that the Court held in Wolf that the
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Amendment was applicable to the States through the Due Process Clause, the cases of this Court, as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation **1692 of its provisions. Even Wolf ‘stoutly adhered’ to that proposition. The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches-state or federal-it was *656 logically and constitutionally necessary that the exclusion doctrine-an essential part of the right to privacy-be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case. In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to whthhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule ‘is to deter-to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it.’ Elkins v. United States, supra, 364 U.S. at page 217, 80 S.Ct. at page 1444.
Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as ‘basic to a free society.’ Wolf v. People of State of Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361. This
Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. And nothing could be more certain that that when a coerced confession is involved, ‘the relevant rules of evidence’ are overridden without regard to ‘the incidence of such conduct by the police,’ slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effect, documents, etc.? We find that, *657 as to the Federal Government, the Fourth and Fifth
Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an ‘intimate relation'FN8 in their perpetuation of
‘principles of humanity and civil liberty (secured) * * * only after years of struggle.’ Bram v. United States,
1897, 168 U.S. 532, 543-544, 18 S.Ct. 183, 187, 42 L.Ed. 568. They express ‘supplementing phases of the same constitutional purpose-to maintain inviolate large areas of personal privacy.’ Feldman v. United States,
1944, 322 U.S. 487, 489-490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408. The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence-the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence. Cf. Rochin v. People of State of California, 1952, 342 U.S. 165, 173, 72 S.Ct.
205, 210, 96 L.Ed. 183.
Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth
Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the
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enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. Moreover, as was said in Elkins, ‘(t)he very essence of a healthy federalism depends upon the avoidance of needless conflict between *658 state and federal courts.’ 364 U.S. at page 221, 80 S.Ct. at page 1446. Such a conflict, hereafter needless, arose this very Term, in Wilson v. Schnettler, 1961, 365 U.S. 381, 81 S.Ct. 632, 5
L.Ed.2d 620, in which, and in spite of the promise made by Rea, we gave full recognition to our practice in this regard by refusing to restrain a federal officer from testifying in a state court as to evidence unconstitutionally seized by him in the performance of his duties. Yet the double standard recognized until today hardly put such a thesis into practice. In non-exclusionary States, federal officers, being human, were by it invited to and did, as our cases indicate, step across the street to the State's attorney with their unconstitutionally seized evidence. Prosecution on the basis of that evidence was then had in a state court in utter disregard of the enforceable Fourth Amendment. If the fruits of an unconstitutional search had been inadmissible in both state and federal courts, this inducement to evasion would have been sooner eliminated.
There would be no need to reconcile such cases as Rea and Schnettler, each pointing up the hazardous uncertainties of our heretofore ambivalent approach.
Federal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.
‘However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness.’ Miller v. United States, 1958, 357 U.S. 301, 313, 78 S.Ct.
1190, 1197, 2 L.Ed.2d 1332. Denying shortcuts to only one of two cooperating law enforcement agencies tends naturally to breed legitimate suspicion of ‘working arrangements' whose results are equally tainted.
Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Lustig v. United States, 1949, 338
U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819.
There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘(t)he criminal is to go free because the constable has blundered.’ People v. Defore, 242 N.Y. at page 21, 150 N.E. at page 587. In some cases this will undoubtedly be the result. FN9 But, as was **1694 said in Elkins, ‘there is another consideration-the imperative of judicial integrity.’ 364 U.S. at page 222, 80
S.Ct. at page 1447. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 1928, 277 U.S.
438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944: ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. * * * If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rule fetters law enforcement. Only last year this Court expressly considered that contention and found that ‘pragmatic evidence of a sort’ to the contrary was not wanting. Elkins v. United States, supra, 364 U.S. at page 218, 80 S.Ct. at page 1444. The Court noted that
‘The federal courts themselves have operated under the exclusionary rule of Weeks for almost half a century;*660 yet it has not been suggested either that the Federal Bureau of InvestigationFN10 has thereby been rendered ineffective, or that the administration of criminal justice in the federal courts has thereby been
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disrupted. Moreover, the experience of the states is impressive * * *. The movement towards the rule of exclusion has been halting but seemingly inexorable.’ Id., 364 U.S. at pages 218-219, 80 S.Ct. at pages 1444-
1445.
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.FN11 Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
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Supreme Court of the United States
Nos. 1, 2, 4, 10.
Reargued Dec. 7, 8, 9, 1953.
Decided May 17, 1954.
Class actions originating in the four states of Kansas, South Carolina, Virginia, and Delaware, by which minor Negro plaintiffs sought to obtain admission to public schools on a nonsegregated basis. On direct appeals by plaintiffs from adverse decisions in the United States District Courts, District of Kansas, 98
F.Supp. 797, Eastern District of South Carolina, 103 F.Supp. 920, and Eastern District of Virginia, 103
F.Supp. 337, and on grant of certiorari after decision favorable to plaintiffs in the Supreme Court of
Delaware, 91 A.2d 137, the United States Supreme Court, Mr. Chief Justice Warren, held that segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprives the children of the minority group of equal educational opportunities, in contravention of the Equal Protection Clause of the Fourteenth Amendment.
Cases ordered restored to docket for further argument regarding formulation of decrees.
*486 Mr. Chief Justice WARREN delivered the opinion of the Court.
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 this consolidated opinion.FN1
FN1. In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of
Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than
15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat.1949, s
72-1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis.
The three-judge District Court, convened under 28 U.S.C. ss 2281 and 2284, 28 U.S.C.A. ss 2281, 2284,
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found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F.Supp. 797. The case is here on direct appeal under 28 U.S.C. s 1253, 28 U.S.C.A. s 1253.In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of
Negroes and whites in public schools. S.C.Const. Art. XI, s 7; S.C.Code 1942, s 5377. The three-judge
District Court, convened under 28 U.S.C. ss 2281 and 2284, 28 U.S.C.A. ss 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F.Supp. 529.
This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program.
342 U.S. 350, 72 S.Ct. 327, 96 L.Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well.
103 F.Supp. 920. The case is again here on direct appeal under 28 U.S.C. s 1253, 28 U.S.C.A. s 1253.In the
Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in
Prince Edward County. They brought this action in the United States District Court for the Eastern District of
Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const. s 140; Va.Code 1950, s 22-221. The threejudge District Court, convened under 28 U.S.C. ss 2281 and 2284, 28 U.S.C.A. ss 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to
‘proceed with all reasonable diligence and dispatch to remove’ the inequality in physical plant. But, as in the
South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F.Supp. 337. The case is here on direct appeal under 28 U.S.C. s 1253, 28 U.S.C.A. s 1253.In the Delaware case, Gebhart v. Belton, the plaintiffs are
Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const. Art. X, s 2;
Del.Rev.Code, 1935, s 2631, 14 Del.C. s 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the
Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del.Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme
Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the
Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891,
73 S.Ct. 213, 97 L.Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.
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In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance,
*488 they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called ‘separate but equal’ doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the
Negro schools.
The plaintiffs contend that segregated public schools are not ‘equal’ and cannot be made ‘equal,’ and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction.FN2 Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.FN3
Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth
Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the
Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it **689 is not enough to resolve the problem with which we are faced. At best, they are inconclusive.
The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time.FN4 In the South, the movement toward free common schools, supported*490 by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
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In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the
Court interpreted it as proscribing all state-imposed discriminations against the Negro race.FN5 The doctrine of *491 “separate but **690 equal” did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.FN6 American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the ‘separate but equal’ doctrine in the field of public education. FN7 In Cumming v. Board of Education of Richmond County, 175
U.S. 528, 20 S.Ct. 197, 44 L.Ed. 262, and Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, the validity of the doctrine itself was not challenged.FN8 In more recent cases, all on the graduate school *492 level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct.
232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92
L.Ed. 247; Sweatt v. Painter, 339 U.S. 629, 70 s.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State
Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.
In re Slaughter-House Cases, 1873, 16 Wall. 36, 67-72, 21 L.Ed. 394; Strauder v. West Virginia, 1880, 100
U.S. 303, 307-308, 25 L.Ed. 664.'It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.
What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race,-the right to exemption from unfriendly legislation against them distinctively as colored,-exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.'See also State of Virginia v. Rives, 1879, 100 U.S. 313, 318, 25 L.Ed. 667; Ex parte Virginia, 1879, 100
U.S. 339, 344-345, 25 L.Ed. 676.
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.FN9 Our decision, therefore, cannot turn on merely a comparison of these tangible factors **691 in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.
[1] In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout *493 the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.
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[2] Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
[3] 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 and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on ‘those qualities which are incapable of objective measurement but which make for greatness in a law school.’ In McLaurin v.
Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ‘* * * his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.’ *494 Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the
Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
'Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.' FN10
**692 Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.FN11 Any language*495 in Plessy v. Ferguson contrary to his finding is rejected.
[4] 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 Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the
Fourteenth Amendment. FN12
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[5] Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question-the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this
Term.FN13 The Attorney General *496 of the United States is again invited to participate. The Attorneys
General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1,
1954.FN14
It is so ordered.
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