CRS Annotated Constitution

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Brown’s Aftermath.—For the next several years, the Court declined to interfere with the administration of its mandate, ruling only in those years on the efforts of Arkansas to block desegregation of schools in Little Rock.18 In the main, these years were taken up with enactment and administration of “pupil placement laws” by which officials assigned each student individually to a school on the basis of formally nondiscriminatory criteria, and which required the exhaustion of state administrative remedies before each pupil seeking reassignment could bring individual litigation.19 The lower courts eventually began voiding these laws for discriminatory application, permitting class actions,20 and the Supreme Court voided the exhaustion of state remedies requirement.21 In the early 1960’s, various state practices— school closings,22 minority transfer plans,23 zoning,24 and the like—were ruled impermissible, and the Court indicated that the time was running out for full implementation of the Brown mandate.25


About this time, “freedom of choice” plans were promulgated under which each child in the school district could choose each year which school he wished to attend, and, subject to space limitations, he could attend that school. These were first approved by the lower courts as acceptable means to implement desegregation, subject to the reservation that they be fairly administered.26 Enactment of Title VI of the Civil Rights Act of 1964 and HEW enforcement in a manner as to require effective implementation of affirmative actions to desegregate27 led to a change of attitude in the lower courts and the Supreme Court. In Green v. School Board of New Kent County,28 the Court posited the principle that the only desegregation plan permissible is one which actually results in the abolition of the dual school, and charged school officials with an affirmative obligation to achieve it. School boards must present to the district courts “a plan that promises realistically to work and promises realistically to work now,” in such a manner as “to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.”29 Furthermore, as the Court and lower courts had by then made clear, school desegregation encompassed not only the abolition of dual attendance systems for students, but also the[p.1845]merging into one system of faculty,30 staff, and services, so that no school could be marked as either a “black” or a “white” school.31

Implementation of School Desegregation.—In the aftermath of Green, the various Courts of Appeals held inadequate an increasing number of school board plans based on “freedom of choice,” on zoning which followed traditional residential patterns, or on some combination of the two.32 The Supreme Court’s next opportunity to speak on the subject came when HEW sought to withdraw desegregation plans it had submitted at court request and asked for a postponement of a court– imposed deadline, which was reluctantly granted by the Fifth Circuit. The Court unanimously reversed and announced that “continued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”33

In the October 1970 Term the Court in Swann v. Charlotte– Mecklenburg Board of Education34 undertook to elaborate the requirements for achieving a unitary school system and delineating the methods which could or must be used to achieve it, and at the same time struck down state inhibitions on the process.35 The opinion in Swann emphasized that the goal since Brown was the dismantling of an officially–imposed dual school system. “Independent of student assignment, where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of[p.1846]violation of substantive constitutional rights under the Equal Protection Clause is shown.”36 While “the existence of some small number of one–race, or virtually one–race, schools within a district is not in and of itself the mark of a system that still practices segregation by law,” any such situation must be closely scrutinized by the lower courts, and school officials have a heavy burden to prove that the situation is not the result of state–fostered segregation. Any desegregation plan which contemplates such a situation must before a court accepts it be shown not to be affected by present or past discriminatory action on the part of state and local officials.37 When a federal court has to develop a remedial desegregation plan, it must start with an appreciation of the mathematics of the racial composition of the school district population; its plan may rely to some extent on mathematical ratios but it should exercise care that this use is only a starting point.38

Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible.39 Transportation of students—busing—is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.40 Finally, the Court indicated, once a unitary system has been established, no affirmative obligation rests on school boards to adjust attendance year by year to reflect changes in composition of neighborhoods so long as the change is solely attributable to private action.41


18 Cooper v. Aaron, 358 U.S. 1 (1958) .
19 E.g., Covington v. Edwards, 264 F.2d 780 (4th Cir.), cert. denied, 361 U.S. 840 (1959) ; Holt v. Raleigh City Bd. of Educ., 265 F.2d 95 (4th Cir.), cert. denied, 361 U.S. 818 (1959) ; Dove v. Parham, 271 F.2d 132 (8th Cir. 1959).
20 E.g., McCoy v. Greensboro City Bd. of Educ., 283 F.2d 667 (4th Cir. 1960); Green v. School Board of Roanoke, 304 F.2d 118 (4th Cir. 1962); Gibson v. Board of Pub. Instruction of Dade County, 272 F.2d 763 (5th Cir. 1959); Northcross v. Board of Educ. of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied, 370 U.S. 944 (1962) .
21 McNeese v. Board of Education, 373 U.S. 668 (1963) .
22 Griffin v. Board of Supervisors of Prince Edward County, 377 U.S. 218 (1964) (holding that “under the circumstances” the closing by a county of its schools while all the other schools in the State were open denied equal protection, the circumstances apparently being the state permission and authority for the closing and the existence of state and county tuition grant/tax credit programs making an official connection with the “private” schools operating in the county and holding that a federal court is empowered to direct the appropriate officials to raise and expend money to operate schools). On school closing legislation in another State, see Bush v. Orleans Parish School 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 School Bd., 197 F. Supp. 649 (E.D. La. 1961), aff’d, 368 U.S. 515 (1962) .
23 Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683 (1963) . Such plans permitted as of right a student assigned to a school in which students of his race were a minority to transfer to a school where the student majority was of his race.
24 Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th Cir. 1964).
25 The first comment appeared in dictum in a nonschool case, Watson v. City of Memphis, 373 U.S. 526, 530 (1963) , and was implied in Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683, 689 (1963) . In Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 105 (1965) , the Court announced that “[d]elays in desegregating school systems are no longer tolerable.” 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). See Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865 (5th Cir. 1966).
26 E.g., Bradley v. School Bd. of City of Richmond, 345 F.2d 310 (4th Cir.), rev’d on other grounds, 382 U.S. 103 (1965) ; Bowman v. School Bd. of Charles City County, 382 F.2d 326 (4th Cir. 1967).
27 Pub. L. 88–352, 78 Stat. 252 , 42 U.S.C. Sec. 2000d et seq. (prohibiting discrimination in federally assisted programs). HEW guidelines were designed to afford guidance to state–local officials in interpretations of the law and were accepted as authoritative by the courts and utilized. Davis v. Board of School Comm’rs of Mobile County, 364 F.2d 896 (5th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965).
28 391 U.S. 430 (1968) ; Raney v. Board of Educ. of Gould School Dist., 391 U.S. 443 (1968) . These cases had been preceded by a circuit– wide promulgation of similar standards in United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified & aff’d. en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967) .
29 Green, 391U.S. at 439, 442 391U.S. at 439, 442 (1968). “Brown II was a call for the dismantling of well–entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state–compelled dual systems were nevertheless clearly charged 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.” Id. at 437–38. The case laid to rest the dictum of Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955), that the Constitution “does not require integration” but “merely forbids discrimination.” Green and Raney v. Board of Educ. of Gould School Dist., 391 U.S. 443 (1968) , found “freedom of choice” plans inadequate, and Monroe v. Board of Comm’rs of City of Jackson, 391 U.S. 450 (1968) , found a “free transfer” plan inadequate.
30 Bradley v. School Bd. of City of Richmond, 382 U.S. 103 (1965) (faculty desegregation is integral part of any pupil desegregation plan); United States v. Montgomery County Bd. of Educ., 395 U.S. 225 (1969) (upholding district court order requiring assignment of faculty and staff on a ratio based on racial population of district).
31 United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), mod. & aff’d en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967) .
32 Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th Cir.), cert. denied, 396 U.S. 904 (1969) ; Henry v. Clarksdale Mun. Separate School Dist., 409 F.2d 682 (5th Cir.), cert. denied, 396 U.S. 940 (1969) ; Brewer v. School Bd. of City of Norfolk, 397 F.2d 37 (4th Cir. 1968); Clark v. Board of Educ. of City of Little Rock, 426 F.2d 1035 (8th Cir. 1970).
33 Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969) . The Court summarily reiterated its point several times in the Term. Carter v. West Fana Parish School Board, 396 U.S. 290 (1970) ; Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970) ; Dowell v. Bd. of Educ. of Oklahoma City, 396 U.S. 269 (1969) .
34 402 U.S. 1 (1971) ; see also Davis v. Board of School Comm’rs of Mobile County, 402 U.S. 33 (1971) .
35 McDaniel v. Barresi, 402 U.S. 39 (1971) ; North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 (1971) .
36 402U.S. at 18 402U.S. at 18.
37 Id. at 25–27.
38 Id. at 22–25.
39 Id. at 27–29.
40 Id. at 29–31.
41 Id. at 31–32. In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976) , the Court held that after a school board has complied with a judicially–imposed desegregation plan in student assignments and thus undone the existing segregation, it is beyond the district court’s power to order it subsequently to implement a new plan to undo the segregative effects of shifting residential patterns. The Court agreed with the dissenters, Justices Marshall and Brennan, id., 436, 441, that the school board had not complied in other respects, such as in staff hiring and promotion, but it thought that was irrelevant to the issue of neutral student assignments.
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