Fourteenth Amendment, Section 1 — Equal Protection: Segregation in Education

Amdt14.S1.8.2.1 Brown v. Board of Education

Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race,¹ but the Court in Plessy v. Ferguson² adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.³ Plessy concerned not schools but a state law requiring “equal but separate” facilities for rail transportation and requiring the separation of “white and colored” passengers. “The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power.”⁴ The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, “even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.”⁵

Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court’s decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with white students,⁶ and it upheld the refusal of an injunction to require a school board to close a White high school until it opened a high school for African Americans.⁷ And no violation of the Equal Protection Clause was found when a state law prohibited a private college from teaching White and Black students together.⁸

In 1938, the Court began to move away from “separate but equal.” It held that a state that operated a law school open to White students only violated a Black applicant’s right to equal protection, even though the state offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state.⁹ When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for Whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the White school necessarily meant that the separate school was unequal.¹⁰ Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students.¹¹

“Separate but equal” was formally abandoned in Brown v. Board of Education,¹² which involved challenges to segregation per se in the schools of four states in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not “turn the clock back to 1867. . . or even to 1896,” but must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the Equal Protection Clause was violated by such separation. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”¹³

After hearing argument on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. “At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” The lower courts were directed to “require that the defendants make a prompt and reasonable start toward full compliance,” although “[o]nce such a start has been made,” some additional time would be needed because of problems arising in the course of compliance and the lower courts were to allow it if on inquiry delay were found to be “in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system.” In any event, however, the lower courts were to require compliance “with all deliberate speed.”¹⁴

Amdt14.S1.8.2.2 Aftermath of Brown v. Board of Education

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

Amdt14.S1.8.2.3 Implementing School Desegregation

Following its 1968 decision Green v. County School Board of New Kent County,¹ the Court continued to encounter school districts’ refusals to comply with its Brown decisions.² In another case involving the forty-third largest school system in the United States at the time, the Court thus undertook to define “in more precise terms” the duty of school authorities and federal courts to implement “Brown I and the mandate to eliminate dual systems and establish unitary systems at once.”³ Observing that lower courts “have struggled in hundreds of cases with a multitude and variety of problems” to implement its directives,⁴ the Court in its 1971 decision Swann v. Charlotte-Mecklenburg Board of Education sought to address “with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause.”⁵

In Charlotte-Mecklenburg, the Court stated that the “first remedial responsibility of school authorities is to eliminate invidious racial distinctions”—not only in student assignment, but also in other areas such as transportation, faculty and staff, extracurricular activities, building maintenance and equipment.⁶ The Court emphasized that apart from the racial composition of a school’s student body, if 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,” such features were indicative that a school district had failed to satisfy its constitutional obligations to dismantle its dual system and continued to deprive Black students of their rights to equal protection.⁷ Although “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,”⁸ where a proposed desegregation plan “contemplates the continued existence” of such schools, school authorities must “satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.”⁹

When school authorities fail in their obligations to dismantle state-sponsored racial segregation, the Court has held that a district court has “broad power to fashion a remedy that will assure a unitary school system,”¹⁰ with “the nature of the violation determin[ing] the scope of the remedy.”¹¹ For “a system that has been deliberately constructed and maintained to enforce racial segregation,” the Court explained, a court may, and sometimes must, order race-based student assignments to desegregate.¹² As the Court elaborated in a subsequent case, McDaniel v. Barresi,¹³ “steps will almost invariably require that students be assigned ‘differently because of their race’” in this remedial context, as “[a]ny other approach would freeze the status quo that is the very target of all desegregation processes.”¹⁴

The Court in Charlotte-Mecklenburg specifically laid out several methods for undoing dual systems, such as set ratios for redistributing faculty and students to desegregated schools,¹⁵ the race-conscious redrawing of school districts and attendance zones,¹⁶ considering desegregation in new school construction,¹⁷ and transporting students through busing.¹⁸ Considering faculty reassignments, the Court rejected arguments “that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation”¹⁹ and upheld a district court order setting a minimum ratio of Black to White faculty assigned to each school.²⁰ The Court similarly upheld a court-ordered minimum ratio of Black to White students in various schools, describing the district court’s use of ratios in that case as “no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement.”²¹ The Court also emphasized that the district court’s remedy came after the local authorities had undisputedly continued their dual school system at least fifteen years after the Court’s Brown decision,²² and “had totally defaulted” in presenting “an acceptable [desegregation] plan.”²³ If the district court, however, had required, “as a matter of substantive constitutional right, any particular degree of racial balance or mixing,” the Court observed that it would have reversed such an order, as the constitutional requirement to dismantle dual systems “does not mean that every school in every community must always reflect the racial composition of the school system as a whole.”²⁴

The Court in Charlotte-Mecklenburg also held that courts and school authorities not only may, but sometimes must, alter attendance boundaries and group or pair noncontiguous school attendance zones to desegregate dual systems and undo past official action.²⁵ Describing the “gerrymandering of school districts and attendance zones” as “one of the principal tools” to break up a dual system, the Court acknowledged that while the zones “are neither compact nor contiguous,” such “awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.”²⁶ Transporting students to and from school through busing is also a permissible tool of educational and desegregation policy, particularly in circumstances such as those in Swann where assigning children “to the school nearest their home . . . would not produce an effective dismantling of the dual system.”²⁷ Discussing specific features of the busing plan ordered by the district court in Swann, the Court upheld the lower court’s remedial decree, stating that “[d]esegregation plans cannot be limited to the walk-in school.” ²⁸ More generally, the Court stated that when valid objections are raised to transporting students, such as when “the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process,” lower courts must “weigh the soundness of any transportation plan” in light of various factors including other features of the desegregation plan at issue.²⁹

Finally, the Court stated, neither “school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system.”³⁰

Amdt14.S1.8.2.4 Scope of Remedial Desegregation Orders and Ending Court Supervision

Following Swann v. Charlotte-Mecklenburg Board of Education, the Court addressed other legal challenges to district court desegregation orders, and continued to affirm the broad authority of federal courts to order remedial actions¹ while also modifying or reversing court orders that it found were unwarranted or excessive given the evidence at issue.² In Milliken v. Bradley,³ for example, the Court set aside a court-ordered desegregation plan spanning the city of Detroit and fifty-three adjacent suburban school districts. The Court held that such a broad remedy could only be implemented to cure an interdistrict constitutional violation if state officials and officials in those suburban school districts were responsible, at least in part, for the segregation between the districts, through either discriminatory actions affecting the larger Detroit area or constitutional violations within one of the school districts that had produced a substantial segregative effect in another district.⁴ The Court in Milliken found the evidence insufficient to support an interdistrict remedy in that case.⁵ The Court stated: “[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy”.⁶

Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure, or state-sanctioned, racial separation in public schools across the country. Among these remedial methods, busing created a great amount of controversy, though the Court in Charlotte-Mecklenburg sanctioned it as a permissible desegregation tool.⁷ Around that time, Congress enacted several provisions, either permanent statutes or annual appropriations limits, attempting to restrict the power of federal courts and administrative agencies to order or to require busing, but these proved largely ineffectual.⁸ Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none were enacted.⁹

With many desegregation decrees in operation across the country, the Court also considered how a school district must comply to free itself of continuing court supervision. In a 1991 case involving Oklahoma City public schools, the Court in Oklahoma City Board of Education v. Dowell¹⁰ stated that a desegregation decree may be lifted upon a showing that the purposes of the litigation have been “fully achieved”—that is, that the school district has been operating “in compliance with the commands of the Equal Protection Clause” “for a reasonable period of time,” and that it is “unlikely” to return to its former violations.¹¹ The Court instructed that a lower court assessing whether to lift a desegregation order “should look not only at student assignments, but ‘to every facet of school operations—faculty, staff, transportation, extra-curricular activities and facilities.’”¹² On remand, the trial court was directed to determine “whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable.”¹³

The Court also held that a federal court may incrementally withdraw its supervision over a school district upon a showing of compliance in particular areas of the system, such as student assignment and physical facilities, while retaining jurisdiction over other areas in which the system had not demonstrated full compliance. In its 1992 decision Freeman v. Pitts,¹⁴ the Court stated that a federal court “has the discretion to order an incremental or partial withdrawal of its supervision and control,”¹⁵ and may “relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations.”¹⁶

Amdt14.S1.8.2.5 Remaining Vestiges of Unconstitutional Racial Segregation

Public institutions of higher education were also segregated by race, and the Court addressed desegregation efforts in that context as well. In its 1992 decision United States v. Fordice,¹ the Court determined that Mississippi had not, by adopting race-neutral admissions policies, eliminated all vestiges of its prior de jure, racially segregated higher education system.² The Court held that the Equal Protection Clause requires that a state, to the extent practicable and consistent with sound educational practices, must eradicate policies and practices that are traceable to its dual system and that continue to have segregative effects.³ The Court identified several surviving aspects of Mississippi’s prior dual system that were constitutionally suspect and that had to be justified or eliminated, including the widespread duplication of programs throughout the public university system, which was a remnant of the dual “separate-but-equal” system; institutional mission classifications that made three formerly White-only schools and no formerly Black-only schools the flagship “comprehensive” universities with the most expansive academic offerings; and the retention and operation of all eight schools rather than the possible merger of some.⁴