Aftermath of Brown v. Board of Education

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following its decisions in Brown I and II, the Supreme Court addressed numerous states’ and localities’ refusals to comply with its mandates. Four years after Brown I, for example, the Court in Cooper v. Aaron described various actions taken by Arkansas state authorities, including amending the state constitution to direct the Arkansas state legislature to “oppose” the Supreme Court’s Brown decisions.1 The issue before the Court in Cooper concerned the first stage of an Arkansas local school board’s desegregation plan—admitting nine Black students to a high school of over 2,000 students in Little Rock, Arkansas.2 The Governor had ordered the Arkansas National Guard to block their attendance,3 and after the Guard withdrew under court order, the President of the United States sent federal troops to facilitate the admission of the nine students in late September of 1957.4 Following these actions, the local school board petitioned to postpone all further steps to desegregate and withdraw the Black students already admitted to the high school,5 pointing to the continued public hostility which the school board alleged had been provoked by other state authorities.6 A unanimous Supreme Court affirmed the lower court’s denial of that petition,7 stating: “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.” 8

While racial segregation in public education is commonly associated with K-12 schools, numerous public institutions of higher education—such as public colleges, law schools, and doctoral programs—had White-only admissions policies that barred Black students from matriculating solely because of their race.9 After Brown, the Court weighed in on circumstances like those in Cooper v. Aaron in the higher education context as well, this time involving the state legislature and Governor of Mississippi’s efforts to block the admission of the first Black student to the University of Mississippi.10 Ultimately, the University admitted the student, James Meredith, upon federal court order, under the escort of United States Marshals.11

In addition to cases involving public confrontation by state authorities, the Supreme Court, in the early 1960s,12 also ruled on various other state and local practices designed to evade or delay school desegregation, such as school closings13 and minority transfer plans.14 Numerous jurisdictions also adopted “pupil placement laws,” which automatically reassigned students to the segregated school they had previously attended, unless a state entity changed that assignment at its discretion.15 While some lower courts had held that parents and students could not challenge such practices in federal court unless they had exhausted state law procedures,16 the Supreme Court rejected such arguments.17 “The right alleged,” the Court explained, “is as plainly federal in origin and nature as those vindicated in Brown v. Board of Education,” and not “in any way entangled in a skein of state law that must be untangled before the federal case can proceed.” 18

Various jurisdictions also implemented “freedom of choice” plans19 which generally provided that each child in a school district could choose which school to attend each year. In its 1968 decision Green v. School Board of New Kent County,20 the Court addressed whether a Virginia county school district’s “freedom of choice” plan was sufficient to satisfy the mandate of Brown II.21 The county’s two schools—one formerly designated only for White students and the other for Black students22 —remained segregated by race through 1964.23 Under the county’s 1965 “freedom of choice” plan, each student chose between those two schools each year, and if no choice was made, students were assigned to the school previously attended.24 The school board argued that its plan satisfied its constitutional obligations, and asserted that for the Court to rule otherwise would read the Fourteenth Amendment to require “compulsory integration.” 25 The Court rejected that argument as “ignor[ing] the thrust of Brown II,” which requires “the dismantling of well-entrenched dual systems.” 26 Brown II, the Court stated, “clearly charged [public entities] with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” 27 Emphasizing the county’s “deliberate perpetuation” of a racially segregated school system well after its Brown decisions,28 the Court concluded that the county’s plan “cannot be accepted as a sufficient step” to transition to a unitary school system29 and held that a “freedom of choice” plan “is not an end in itself” in the context dismantling a dual school system.30 In the three years under the county’s plan, the Court further observed that the system remained racially segregated and “burden[ed] children and their parents with a responsibility which Brown II placed squarely on the School Board.” 31 The Court ordered the Board to create a new plan and “fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” 32 The Court in other cases further held that school desegregation encompassed not only eliminating dual systems as they relate to student assignments, but also the merging of faculty,33 staff, and services into one system.34

1: Cooper v. Aaron, 358 U.S. 1, 8–9 (1958). See also id. at 4 ( “As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. . . . 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. Bd. of Educ.” ).
2: Id. at 9. See also id. at 8 ( “While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment.” ).
3: Id. at 9–11.
4: Id. at 12.
5: Id. at 12–13.
6: Id. at 12 ( “Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible.” ).
7: Id. at 14.
8: Id. at 16.
9: See generally, e.g., United States v. Fordice, 505 U.S. 717, 721 (1992) (discussing the historical background of Mississippi’s public higher education system; stating that “Mississippi launched its public university system in 1848 by establishing . . . an institution dedicated to the higher education exclusively of white persons” ); Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631, 632 (1948) (analyzing an equal protection claim concerning a Black student who was “concededly qualified” for admission to Oklahoma’s only public law school, but had been denied admission “solely because of her color” ); Knight v. Alabama, 14 F.3d 1534, 1538 (11th Cir. 1994) ( “In very broad terms, for more than a century following its admission to the Union in 1819, Alabama denied blacks all access to college-level public higher education and did so for the purpose of maintaining the social, economic, and political subordination of black people in the state. . . . Following Reconstruction, blacks were excluded from the universities attended by whites, relegated instead only to vastly inferior institutions that did not even begin to offer college-level courses until required to do so by a 1938 Supreme Court decision.” ). For more information, see Christine J. Back & JD S. Hsin, Cong. Rsch. Serv., R45481, “Affirmative Action” and Equal Protection in Higher Education (2019), https://crsreports.congress.gov/product/pdf/R/R45481.
10: See United States v. Barnett, 376 U.S. 681, 683–86 (1964).
11: See id. at 686. For further discussion, see also Meredith v. Fair, 313 F.2d 532 (5th Cir. 1962) (per curiam) and Meredith v. Fair, 313 F.2d 534 (5th Cir. 1962) (per curiam), cert. denied in both cases, 372 U.S. 916 (1963).
12: Around this time, the Court repeatedly expressed concern over delays in racial desegregation. See, e.g., Bradley v. Sch. Bd. of Richmond, 382 U.S. 103, 105 (1965) (stating that “more than a decade has passed since we directed desegregation of public school facilities ‘with all deliberate speed,’” and “[d]elays in desegregating school systems are no longer tolerable.” ) (citations omitted); Watson v. City of Memphis, 373 U.S. 526, 529–33 (1963) (reversing lower court judgment inviting city to submit “a plan calling for an even longer delay in effecting desegregation” ; observing that it “is now more than 9 years since” the Court’s Brown decision and stating that “Brown never contemplated that the concept of ‘deliberate speed’ would countenance indefinite delay in elimination of racial barriers in schools, let alone other public facilities not involving the same physical problems or comparable conditions” ).
13: In Griffin v. Prince Edward Cnty. Sch. Bd., the Court addressed a Virginia county’s closing its public schools in 1959, in response to a federal court’s desegregation order. 377 U.S. 218, 222–23 (1964). A private foundation was formed to operate private schools exclusively for White children in the county, and the state and county enacted tuition grants for children to attend private schools and tax concessions for those who made financial contributions to private schools. Id. at 223–24. Discussing these state actions, the Court observed that the segregated schools “although designated as private, are beneficiaries of county and state support.” Id. at 230–31. The evidence, the Court concluded, “could not be clearer” that the public school closure and private school operations put in place were “to ensure, through measures taken by the county and the State, that white and colored children . . . would not, under any circumstances, go to the same school.” Id. at 231. The Court concluded that enjoining the state and county from paying tuition grants and giving tax credits was “appropriate and necessary” while public schools remained closed and further stated that the district court could require state authorities to levy taxes to raise funds adequate for reopening and maintaining a desegregated school system, “if necessary to prevent further racial discrimination.” Id. at 232–33. The lower court could also issue an order to reopen schools “if required to assure these petitioners that their constitutional rights will no longer be denied them.” Id. at 233–34. “The time for mere ‘deliberate speed’ has run out.” Id. at 234. On other school closing legislation, see Bush v. Orleans Parish Sch. Bd., 187 F. Supp. 42, 188 F. Supp. 916 (E.D. La. 1960), aff’d, 365 U.S. 569 (1961); Hall v. St. Helena Parish Sch. Bd., 197 F. Supp. 649 (E.D. La. 1961), aff’d, 368 U.S. 515 (1962).
14: In Goss v. Knoxville Bd. of Educ., the Court addressed the transfer plans of two Tennessee localities that allowed students to transfer from a school where they would be in the racial minority to a school where they would be in the racial majority. 373 U.S. 683, 684–87 (1963). “Here,” the Court observed, “the right of transfer . . . is a one-way ticket leading to but one destination, i.e., the majority race of the transferee and continued segregation.” Id. at 687. The Court further noted that race was the only factor for the transfer, with no “provision whereby a student might with equal facility transfer from a segregated to a desegregated school,” which “underscores the purely racial character and purpose of the transfer provisions. We hold that the transfer plans promote discrimination and are therefore invalid.” Id. at 688. See also Monroe v. Bd. of Comm’rs of Jackson, 391 U.S. 450, 458 (1968) (holding that a “free transfer” plan “does not meet respondent’s ‘affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.’” ) (quoting Green v. Cnty. Sch. Bd., 391 U.S. 430, 437–38 (1968). A grade-a-year plan was implicitly disapproved in Calhoun v. Latimer, 377 U.S. 263 (1964), vacating and remanding 321 F.2d 302 (5th Cir. 1963).
15: See Green, 391 U.S. at 433 (describing Virginia’s Pupil Placement Act, which had divested local school boards of the authority to assign children to schools, and automatically reassigned children to the school they had previously attended unless a state board, upon a student’s application, assigned them to another school at its discretion). See also, e.g., Northcross v. Bd. of Educ. of Memphis, 302 F.2d 818, 820–21, 823 (6th Cir. 1962) (describing the Tennessee Pupil Assignment Law, enacted in 1957, which among other things, assigned “all children who had previously been enrolled in the schools to the same schools that they had attended under the constitutional and statutory separate racial system” until graduation, unless both parents requested a transfer); Holt v. Raleigh City Bd. of Educ., 265 F.2d 95, 98 (4th Cir. 1959); Gibson v. Bd. of Pub. Instruction, 272 F.2d 763, 765–66 (5th Cir. 1959).
16: See, e.g., Covington v. Edwards, 264 F.2d 780, 781–83 (4th Cir. 1959) (affirming the dismissal of the plaintiffs’ desegregation claims because they had failed to exhaust the state law’s administrative procedures for seeking review and remedy relating to school assignments), cert. denied, 361 U.S. 840 (1959); Parham v. Dove, 271 F.2d 132, 137–39 (8th Cir. 1959) (concluding that the plaintiffs were required, among other things, to exhaust state law procedures for challenging racially segregating school assignments before filing suit in federal court).
17: McNeese v. Cahokia Bd. of Educ., 373 U.S. 668, 669–71, 674 (1963) (where plaintiffs brought a legal challenge under 42 U.S.C. § 1983 alleging intentional racial segregation in Illinois public schools, rejecting the argument that plaintiffs were required to exhaust administrative remedies under an Illinois statute before filing suit in federal court).
18: Id. at 674.
19: See generally United States v. Jefferson Cnty. Bd. of Educ., 372 F.2d 836, 878 (5th Cir. 1966) (describing the actions of school boards located throughout the Fifth Circuit Court of Appeals and stating that school boards first failed to take action “that might be considered a move toward integration,” then adopted Pupil Placement Laws “likely to lead to no more than a little token desegregation,” and stating that “[n]ow they turn to freedom of choice plans,” which “as now administered, necessarily promotes resegregation” ). Other lower courts had first approved such plans, subject to the reservation that they be fairly administered. See, e.g., Bradley v. Sch. Bd. of Richmond, 345 F.2d 310 (4th Cir. 1965), rev’d on other grounds, 382 U.S. 103 (1965); Bowman v. Cnty. Sch. Bd., 382 F.2d 326 (4th Cir. 1967), vacated, 391 U.S. 430 (1968).
20: 391 U.S. 430 (1968).
21: Id. at 431–32.
22: Id. at 432.
23: Id. at 433.
24: Id. at 434.
25: Id. at 437.
26: Id.
27: Id. at 435–38.
28: Id. at 438.
29: Id. at 441.
30: Id. at 440.
31: Id. at 441–42.
32: Id. at 442. See also Raney v. Bd. of Educ. of Gould Sch. Dist., 391 U.S. 443, 444–48 (1968) (addressing a “freedom of choice” plan and holding that it was inadequate to convert the state-imposed segregated school system into a “unitary, nonracial school system” ).
33: Bradley v. Sch. Bd. of Richmond, 382 U.S. 103 (1965) (faculty desegregation is integral part of any pupil desegregation plan); United States v. Montgomery Cnty. Bd. of Educ., 395 U.S. 225 (1969) (upholding district court order establishing a minimum racial ratio for faculty and staff so that at each school in the district had a substantially similar ratio of Black and White teachers and staff).
34: More generally, the enactment of Title VI of the Civil Rights Act of 1964 and enforcement of that statute by the U.S. Department of Health, Education, and Welfare (HEW) also influenced the analysis of federal courts. See, e.g., Davis v. Bd. of Sch. Comm’rs, 364 F.2d 896 (5th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965). HEW’s guidelines were also references for state and local officials.