The Legalities of Defacto Segregation and Inequitable
School Funding in America’s Public Schools
Notes from Simple Justice (1975) Richard Kluger (Vintage Books)
Jim Crow’s Children: The Broken Promise of the Brown Decision (2002)
Peter Irons (Penguin Books)
The Courage of Their Convictions (1982) Peter Irons, Chapter 12
“Demetrio Rodriguez v. San Antonio” (Penguin Books)
- A Slave possessed no legal standing, no control over
his or her sale; slaves could not bring suit, could not offer testimony
against a white, could not make a contract, could not possess property or
sell anything without a permit, could not possess a weapon, could not blow
horns or beat drums, could not move without a permit, were subject to
curfew, could not meet outside quarters without a permit, could only preach
to fellow slaves and then only with a permit.
- A slave could not be taught to read or write.
- Slave marriages were not recognized by church or state.
Declaration of Independence
- “…all men are created equal.”
- Jefferson owned as many as 100 slaves at
the time he wrote these words.
Colonial Prohibitions of Slave Trade (1780-1794)
Constitutional Convention (1787)
- “We the People” = educated and propertied men
- The Constitution was ratified by 16% of adult men.
- Nearly one in every five Americans was a slave at the time of
- The Great Compromise:
o 3/5ths Compromise determines how slaves were to be
counted as part of the general population so that state delegations were
sized in proportion to the number of representatives in House.
o Southerners had argued that representation should be determined by property
and tax contributions.
o The slave is defined as a mixture of property and person.
o Debate on taxing importation of slaves was resolved by compromise which
would outlaw the slave trade by 1808
o Fugitive slave provision.
Eli Whitney’s Cotton Gin (1794)
- explosion of cotton production in Cotton Belt from North Carolina to Texas
- number and value of slaves explodes
Slave vs. Free States Enter Union
- Louisiana Purchase (1803)
- Missouri Compromise (1820)
- Compromise of 1850
- Kansas- Nebraska Act (1852) “popular sovereignty”
- Nat Turner’s Insurrection (1831)
- William Lloyd Garrison’s Liberator (1831)
Dred Scott v. Sanford (1857)
- Dred Scott was a slave who sued his owner for his
freedom, arguing that his temporary stay in a free state had made him a
- Court decision strikes down an act of Congress for only the second time
in the nation’s history by invalidating the Missouri Compromise
- Judge Taney’s (MD) opinion:
o No citizen can be deprived of property without due
process of the law as guaranteed by the 5th amendment
o Therefore, Congress could not outlaw slavery in any territory under its
o Dred Scott was not entitled to sue because he was not a citizen.
o The Founding Fathers had left no ambiguity about their definition of
slaves as property.
o Negroes were “beings of an inferior order and altogether unfit to
associate with the white race in social or political relations.”
Emancipation Proclamation (1863)
- A war emergency executive order made by the
- Lincoln’s order freed only those slaves in rebel states, not in the rest
of the Union.
- Lincoln invited freed slaves to join the Union Army.
Thirteenth Amendment (1865)
- “Neither slavery nor involuntary servitude, except as
punishment for a crime… shall exist within the United States, or any place
subject to their jurisdiction.” (Sec. 2)
- Words on paper without enforcement powers granted federal government
Freedmen’s Bureau (1865)
- A creation of the War Department
- Responsible for provision of food, clothing and medical care,
resettlement of freed slaves on confiscated land, contractual rights with
landlords, and the establishment of free public schools, segregated by
o Bureau agents set up classes for children staffed,
for the most part, by white teachers from the North, many of whom were
o These Northern teachers were harassed, and several black schools were
burned and pillaged throughout the South.
o Yet by 1870 more than nine thousand teachers were instructing one in
every five black children in the South.
o Teachers encountered unique educational problems with these students:
§ Illiterate parents, hostile whites, no medical
care, work requirements on farms
§ The oral traditions of slave culture
§ Textbooks geared to a Northern children’s experiences, not to those
of a rural Southern child.
§ Southern children had particular difficulty with the abstractions of
Presidential Reconstruction (Andrew Johnson) (1866)
- No state reconstructed under Johnson would have been
forced to make any provision for the freed men.
- Black Codes passed by Southern states:
o Vagrancy fines enforced to regulate movement of
o Special Licenses required for finding work in most occupations
o Special Taxes
Congressional or Radical Reconstruction (1866)
- The Republican Congress led by Thaddeus Stevens passed
legislation that was vetoed by Johnson and then overridden.
- Freedmen’s Bureau Act (1866)
- Civil Rights Act (1866)
o Freedmen were to be protected in their “civil rights
and immunities” by the federal government: agents of the Freedmen’s
Bureau and the federal courts.
o Black Codes in Souther States declared illegal.
o Principle established that Liberty is inseparable from Equality.
o Affirming Freedmen’s rights to make legal contracts, to own property,
and to enjoy the “full and equal benefit of all laws”.
- Liberals asserted a new federal power to intervene in state laws that
discriminated against minorities.
- Conservatives argued that these civil rights laws went beyond the scope
of power granted to the federal government by the 13th Amendment. They
argued that the 13th Amendment only applied to the relationship between
owners and slaves; any wider application of it assaulted the federal
compact between the states and the national government.
Fourteenth Amendment (1866)
- “All persons born or naturalized in the United States
are citizens of the United States and of the state wherein they reside. No
state shall make or enforce any law which abridges the rights of the
citizen, nor deprive any person of life, liberty or property without due
process, nor deny any person equal protection of the laws.” (Sec. 1)
- Congress was given the power to enforce the amendment with appropriate
laws. (Sec. 5)
First Reconstruction Act (1867)
- disbands states which refused to ratify 14th amendment
- divides disbanded states into military districts
- asserts a list of demands that had to be met for a state's re-entry to
o new state constitutions
o ratification of 14th amendment
o franchise for freed black men
Fifteenth Amendment (1869)
- “The right of citizens to vote shall not be denied or
abridged by the United States of or by any state on account of race, color
or previous condition of servitude.” (Sec 1)
- Congress has the right to enforce this amendment by appropriate
Civil Rights Act (1875)
- All people regardless of race or color were guaranteed
“the full and equal enjoyment of the accommodations of inns, public
conveyances on land or water, theatres, and other places of public
- No one was to be disqualified for jury service because of race, color or
previous condition of servitude.
- Un-segregated schools were not included among the rights guaranteed by
the bill. (not a critical issue given the rudimentary nature of the public
The Slaughterhouse Cases (1873)
- An official monopoly on slaughterhouses (granted by
carpetbaggers) was challenged in a lawsuit by butchers claiming that they
had been deprived of the right to make a living and thus the privileges and
immunities guaranteed them by the, as yet, untested 14th Amendment.
- Samuel Miller’s opinion sought to restrict the power of the federal
government and interpreted the 14th Amendment’s language narrowly.
o He used the amendment’s reference to citizenship of
the United States and of the State to assert the existence of dual
citizenships distinct from one another.
o Miller limited the power of the federal government by asserting that
the 14th Amendment did not transfer responsibility for the protection of
civil rights from the states to the federal government except for “those
privileges and immunities (which) no state can abridge”: the right to
vote, to gain access to federal buildings, and the right to petition the
o Therefore, slaughterhouse licensing has nothing to do with a citizen’s
rights under the 14th Amendment
Congress repeals disenfranchisement of confederate officers, reawakening the
Violence and intimidation against black voters as whites seek to overturn
radical Republican policies.
United States v. Reese (1875)
- Chief Justice Waite’s opinion makes the federal
guarantee of the right to vote worthless.
o The 15th Amendment did not confer on the Negro (or
anyone) the right of suffrage—only a state could grant that right.
o The 15th Amendment only said that no state could deny the right to vote
on the basis of color. All other methods of interfering with the Negro’s
vote were legal. Negroes turned away at the polling place had to prove
that race was the only reason why they had been denied the right to vote.
United States v. Cruikshank (1875)
- A mob of 100 Louisiana whites used violence to break
up a black voter rally.
- Waite opinion:
o The 14th Amendment only prevents the state
governments themselves from abusing blacks; only state actions—laws or
the actions of public officials—were covered by the 14th Amendment and
therefore under federal jurisdiction.
o Private mobs which broke laws had to be prosecuted by state
Presidential Election (1876)
- Republican Hayes vs. Democrat Tilden
- Hayes needs electoral votes of newly reconstituted Southern states to
- One vote victory in electoral college.
- He negotiates a sweetheart deal to finance railroads in the Southwest and
withdraws federal troops from the South.
- Unspoken agreement: the federal government would keep distance from
States as they rescinded civil rights for blacks.
- Blacks left to fend for themselves without military protection or federal
Southern Democrats move to disenfranchise blacks:
- Disenfranchisement techniques:
o Moving polling places without notification of public
o Stuffing ballot boxes
o Gerrymandering voting districts
o Petty larceny convictions deny voting rights
o Maze-like ballot boxes
o Poll tax certificates
o Literacy tests
- Segregated public schools
o Separate and unequal facilities
o Separate curriculum for blacks: rudiments of literacy, training for
manual labor and domestic service.
o Education “above caste” makes blacks unhappy.
Strauder v. West Virginia (1879)
- West Virginia law limits service on grand or trial
juries to whites.
- Court opinion asserts
o The 14th Amendment prohibits denial of due process
or equal protection of the laws.
o The 14th amendment implies “a positive immunity, or right, most
valuable to the colored race—the right to exemption from legal
discrimination from unfriendly legislation against them distinctly as
- Yet, the indisputable right of every American citizen to stand trial
before an impartial jury was regularly ignored throughout the South for the
better part of the next century.
Virginia v. Rives (1879)
- the wording of the Virginia state law does not limit
jury service to white males
- However, the absence of a black on a jury does not in and of itself prove
that discrimination has taken place. The defendant has to prove that the
officials who selected the jury deliberately discriminated against a
United States v. Harris (1883)
- Lynch mob takes blacks from a Tennessee sheriff and
kills one of them.
- Court finds
o No violation of the equal protection rights
guaranteed by the 14th Amendment took place because state officials had
not been involved in the lynching.
o Jurisdiction for the crime belonged to local authorities.
Civil Rights Cases of 1883
- Ruling on legality of public accommodations section of
1875 Civil Rights Act authorizes “defacto segregation”.
- Bradley opinion rules
o The 14th Amendment only outlaws discrimination taken
by the states themselves, not by private persons choosing “the guests
they will entertain.”
o Excluded negroes suffered private wrongs to their social rights not the
invasion of their civil rights.
o Ruling urges negro to take rank of citizen and not regard himself as
the “special favorite of the laws.”
- Harlan dissent:
o The Civil War amendments had not been passed to make
negroes the special favorites of the laws but to include the negro as
“part of the people for whose welfare and happiness government is
o If the states were now alone obliged to protect civil rights, then “the
rights and freedoms of American citizenship cannot receive from the
nation that efficient protection which heretofore was unhesitatingly
accorded to slavery and the rights of the master.”
Williams v. Mississippi (1898)
- legitimizes poll taxes, literacy tests, and the
grandfather clause (all men whose fathers or grandfathers had voted before
1/1/67 were permanently registered as voters. Those who did not have
ancestors who had voted needed to register.
- McKenna Opinion:
o Such codes alleged to disenfranchise negroes “do not
on their face discriminate between the white and negro races and do not
amount to denial of equal protection under the 14th Amendment…. It had
not been proven that their actual administration was evil, only that evil
was possible under them.”
Booker Washington’s Atlanta Exposition Speech (1895)
Jim Crow Legislation passed. (state required segregation of the races)
Hall v. DeCuir (1877)
- Court strikes down a Louisiana anti-segregation
statute as an invasion of the right of Congress to regulate interstate
commerce because visitors from another state would be affected.
- Yet when Mississippi passed legislation making segregation mandatory within
its borders (1888), the Court found that no intrusion on interstate
commerce had taken place.
Plessy v. Fergusen (1896)
- Homer Plessy sought to test the Court’s ruling in
Civil Rights Cases of 1883 which tolerated segregation on public conveyances.
Plessy boarded a train and sat in the whites-only car, claiming that
segregation denies 14th Amendment privileges, immunities and equal
protection under the law.
- Henry Billings Brown’s opinion:
o the 14th Amendment enforces equality of the 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 inequality, or a commingling of the two
races upon terms unsatisfactory to either.”
o “Laws requiring [racial] separation… do not necessarily imply the
inferiority of either race to the other…”
o Segregation laws rest within the competency of the state legislature’s
- Brown’s documentation of his argument:
o “The most common instance of this [state sponsored
separation of the races] is connected with the establishment of separate
schools for white and colored children, which has been held to be a valid
exercise of the legislative power even by courts of the states where the
political rights of the colored race have been longest and most earnestly
o Roberts v. City of Boston (1849)
Supreme Court of Massachusetts decision.
§ Defendant’s case argued by abolitionist Charles
· Discriminatory classifications must bear
relation to the legitimate business of education: age, sex,
moral/intellectual fitness, but not by basis of race or color.
· Segregation by race imposed the stigma of caste on blacks and
injured whites as well by exposing them to heart hardening legalized
§ Judge Shaw’s Decision (cited by a dozen state courts and by the
Supreme Court three times)
· The great principle that everyone stands equal
before the law must be applied to “the actual and various conditions
of persons in society.”
· Men and women are not “legally clothed” with the same civic and
· Children and adults do not have the same legal functions and are
not subject to the same treatment.
· The principle of equality before the law only guarantees everyone
the same paternal consideration of elected lawmakers, whose judgments
should not be disturbed as long as their power is “reasonably
· “What these rights are, to which individuals, in the infinite
variety of circumstances by which they are surrounded in society, are
entitled, must depend upon laws adapted to their respective relations
· “Prejudice, if it exists, is not created by law and probably cannot
be changed by law.”
· So, segregation is allowed because it is in the best interest of
both black and white.
· Brown ignores the fact that six years later the Mass. state
legislature voted to prohibit school segregation.
· Brown also ignores the fact that the Civil War was fought and
enabled the passage of the 14th Amendment
· Further, Plessy upholds a state action taken by a duly elected
legislature; this action is not a private act of an individual.
- Other Segregation Cases Before Plessy: (Irons)
o State v. McCann (1871)
(Ohio Supreme Court)
§ John McCann, a black parent, living near Columbus,
with three children, wanted to enroll his children in a nearby white
school rather than send them to the black school miles away.
§ Lawyer for state argues that local boards could act “with due regard
to the peculiar circumstances, wants, interests, and even prejudices,
if you please, of each particular locality or neighborhood.” Such
decisions lay within the board’s “police powers”.
§ Court rules against McCann: opinion addresses the question of whether
the 14th Amendment barred Ohio from allowing local school boards to
segregate their schools.
· They fell back on the rationale of Justice Shaw’s decision in Roberts
case: it should be left to the wisdom of and discretion of the proper
authorities to act in a manner which promotes the best interests of
· They asserted that a separate education for blacks was equal to that
education provided for whites.
o Ward v Flood (1873) (California Supreme
§ Mother tries to enroll her daughter in a white
school, testing a recent law passed in the CA legislature mandating
separate schools for blacks and Indians.
§ Supreme Court decision cites Shaw’s holding in the Roberts case,
quoting it extensively.
§ “When the races are separated in public schools, there is certainly
to be found no violation of the constitutional rights of the one race
more than of the other, and we see none of either for each though
separated form the other is to be educated upon equal terms with the
other and both at the common public expense.”
§ I.e. segregation affects both races equally
o Cory v. Carter (1878) Indiana
§ Carter tested a 1869 state law setting up separate
schools for colored children and won in a district court.
§ State Supreme Court reversed the decision
· Citing 1851 State Constitution’s relegation of
coloreds to an inferior status before the law.
· Asserted that education was strictly a state and local matter
· Complete dismissal of the 14th Amendment
o King v. Gallagher (1883) New York
Court of Appeals
§ Brooklyn attempt to test a 1850 law mandating
§ Justices addressed the question of whether the state law had been
annulled by the paramount authority of the 14th Amendment, and their
answer was “no”.
· The ‘privilege’ of receiving an education was
‘created and conferred solely by the laws of the state,’ and could be
‘granted or refused to any individual or class at the pleasure of the
· Two dissenters to the decision argued that if schools could be
segregated, then why not parks, streets, sidewalks? They argued that
segregation is ‘directly calculated to keep alive the prejudice
against color from which sprung many of the evils for the suppression
of which the 14th Amendment… was enacted.’
o Key to Brown’s logic: Was the railway segregation
law a justifiable exercise of the state’s police powers? He argues, “yes”
as long as it is reasonable and promotes the public good.
o He cites Yick Wo v. Hopkins (1886) (see Margold Report)
§ California attempted to close down laundries in
wooden buildings (hence Chinese). In that case, plain racial bias is
expressed: a public authority denies equal justice. Therefore, the 14th
Amendment can be invoked.
§ Laws applied to racial minorities “with an evil eye and an unequal
hand” violated the Constitution
§ Whereas, Plessy acts within the established custom of society to
promote the comfort of all and to secure public order.
o Finally, Brown rejected the argument that segregation stamps the
Negro with the badge of inferiority. If that is so, it is only because
the Negro chooses to put that construction on a just law.
o Racially separate facilities, so long as they are equal, could be legally
ordained by the state; segregation was not discrimination.
- Harlan’s dissent:
o Under the guise of offering equal accommodations for
whites and blacks, the state compels blacks to keep to themselves.
o The state now legally possesses the power to regulate civil rights upon
the basis of race and to place in a condition of legal inferiority a
large body of citizens.
o “The white race deems itself to be the dominant race in the country.
And so it is in prestige, in achievements, in education, in wealth and in
power… But in view of the Constitution, in the eye of the law, there is
in this country a superior, dominant, ruling class of citizens. There is
no caste here. Our Constitution is color-blind, and neither knows nor
tolerates classes among us citizens. In respect of civil rights, all
citizens are equal before the law. The humblest is the peer of the most
powerful. The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by the
supreme law of the land are involved.”
Cumming v. Richmond County Board of Education (1899)
- School board closes black high school because there
were too many kids to be accommodated by the facility.
- Black parents seek to close all high schools until equal facilities are
provided black kids.
- The Court backed the school board’s decision,
o arguing that the federal government could only get
involved in cases where clear and unmistakable violation of rights had
Berea College v. Kentucky (1908)
- Under the influence of Social Darwinist conceptions of
“biological racism”, the Court rules that all contact between the races,
whether obligatory or voluntary, could be outlawed by the state.
- Berea College had been an integrated school since 1859. Berea asserted in
its suit that it was a private institution.
- Kentucky Supreme Court had ruled
o God had created the races to be dissimilar and any
inter-racial association “at all, under certain conditions, leads to the
main evil, which is amalgamation….”
o It its brief to the Supreme Court, Kentucky justices argued that social
progress depends on the unadulterated blood of the Anglo-Saxon Caucasian
- The Supreme Court upheld Kentucky,
o arguing it its decision that the statute did not
prevent Berea from teaching students of each race separately.
- Jim Crow legislation is upheld and segregation statutes go on the
books throughout the South.
- Woodrow Wilson rebuffed criticism of segregation by saying that
separation was not humiliating but a benefit.
Black Responses to Segregation (and Social Darwinism)
- Booker Washington vs. W.E.B. DuBois and the Niagra Movement
- NAACP strategy of contesting segregation in court.
Buchanan v. Warley (1917) 1st NAACP victory over Jim Crow
- NAACP tests Louisville, Kentucky statute which sought
to freeze blacks in fixed neighborhoods thus codifying housing
- see Corrigan v. Buckley (1926), Shelley v. Kramer (1948)
- as well as 90's debate on constitutionality of defacto segregation
resulting from residential segregation: Oklahoma City v. Dowell (1990) Pitts v Freeman (1991) Missouri v. Jenkins (1995)
- Kentucky Appeals Court ruled
o The statute was ruled constitutional by invoking Berea and arguing that even voluntary racial
intermingling was prohibited.
o The state was entitled to use its police powers to prevent
‘cross-breeding’, a law which established on American soil the medieval
practice of walling off racial and religious pariahs.
- US Supreme Court threw the law out.
o Purity of the races and social harmony were
dismissed as irrelevant to the main issue: the Civil Rights Act of 1866 , which led
directly to the framing of the 14th Amendment and was then re-enacted in
1870, asserted that all citizens had the same right to property
as is enjoyed by whites in every territory or state.
Moore v. Dempsey (1923)
- Police and deputies had led a 1919 white riot against
a Negro farmer organization in Arkansas. Blacks had been arrested, tried
and given death sentences.
- The defendants sued for due process under the 14th Amendment and won.
- Holmes opinion:
o When the trial is a mask and public passion drives
the form of the trial, then defendants have been deprived of due process.
Corrigan v. Buckley (1926)
(see Buchanan v. Warley (1917); Shelley v.
Kramer (1948) as well as 90's debate on constitutionality of defacto
segregation resulting from residential segregation: Oklahoma City v. Dowell (1990) Pitts v Freeman (1991) Missouri v. Jenkins (1995)
- Racially restrictive neighborhood covenants are tested
in Washington, DC when a white woman seeks to sell her home to a black
physician and his wife.
- NAACP argues that the couple had been deprived of property rights without
due process in violation of the 5th and the 14th Amendments.
- Taft Court had previously ruled to confine federal power in deference to
the states, but it had also ruled to establish civil liberties protected by
the 14th Amendment.
- The Taft Court took an expansive view of the following terms:
o “liberty”- employer’s freedom to create contracts
o “property”- not only the realty or possession but also the employer’s
o “due process”- not merely the procedure of justice but the substance of
state or federal legislation may come under the court’s
o “substantive due process”: laws over-ruled which offended the
political, social or economic views of a majority of the justices.
- The Court ruled in favor of business interest when states tried to
o Minimum wage laws for women in industry struck down
o Standard weight bread law struck down
o Exploitation of jobless by an employment agency allowed
- Taft opinion
o Approved racially restrictive covenants citing the Civil Right Case of 1883 which held that
private invasions of individual rights were not prohibited by the 14th
Amendment (only state actions).
o Nothing in the Constitution prevents private parties from “entering
into contracts respecting control and disposition of their own
- Henceforth, federal agencies would accept segregated housing as a
socially stabilizing policy.
- FHA (Federal Housing Administration) Loans would only be made contingent
upon respect for local segregation policies.
Gong Lum v. Rice (1927)
- A Chinese father seeks to have his daughter enrolled
in a white public school in Mississippi, arguing that since whites had
segregated blacks in order to prevent protect their children from “the
infusion of blood” from the blacks, how could they then deliberately expose
‘yellow children’ to a menace which the white race recognizes and guards
- Taft opinion:
o “the same question that has been many times decided
to be within the constitutional powers of the state legislature to settle
without intervention of the federal court…”
o “the right and power of the state to regulate the method of providing
for the education of its youth at public expense is clear.”
o Taft left the door open to attacks on segregation: (See Margold Report)
§ “Had the petitioner alleged that there was no
colored school in Martha Lum’s neighborhood a different question would
have been presented.”
- Taft’s opinion was misleading:
- NAACP counsel would learn in the future either to challenge the whole
practice of segregated schools or to insist upon applying Plessy’s separate
but equal doctrine
Nixon v. Herndon (1927) (see Smith v. Allwright)
- White primaries in Texas overturned because the Texas
statute specifically denied Negroes the right to vote in a primary.
- To get around the court’s ruling, Texas Democrats prescribed the voting
qualification regulation to the state executive committee of the party, a
Grovey v. Townsend (1934)
- white primaries in Texas
- Could the acts of the Democratic Party in Texas be construed as those of
a private organization?
- Yes, according to Roberts’ opinion: white primaries were deemed
Margold Report (1931)
- NAACP strategy to make an end run on segregation before direct assault:
o Attack segregation as now provided and administered,
staying close to the Court’s own precedents but finding areas of the law
which they have chosen to ignore.
o Once victories had been accomplished, then assert that separate schools
could never be equal because of the stigma segregation imposes on black
- “If we boldly challenge the constitutional validity of segregation if and
when irremediably accompanied by discrimination, we can strike directly at
the most prolific sources of discrimination.”
- Contrast with the Socialist position (Roger Baldwin of ACLU) which favored
union of white and black workers to break down segregation.
- Garland Fund established to finance a “large scale, widespread, dramatic
campaign to give the Southern Negro his constitutional rights, his political
and civil equality…” Taxpayer suits urged to assure equal schools in the Deep
- Nathan Margold’s advice (Harvard Law School, associate of Felix
o Margold criticized Garland’s strategy because it would
require bringing suits in the thousands against school districts and then
the suits would have to be brought again and again, year after year.
o He recommended that the NAACP “boldly challenge the constitutional
validity of segregation if and when accompanied by discrimination…” but not
attack segregation under any or all circumstances.
o He argued that the question of equal schools had not yet been confronted
directly by the court. This attack would address all state schools that
habitually failed to provide equal educational facilities for Negroes as
o Margold pinpointed the state funding allocation practice which did not
specify the proportion of the division of funding for whites and blacks as
unconstitutional. It could be shown that school officials in segregating
states had been operating under open-ended statutes which should have but
did not charge them with providing equal schools.
§ Precedent: Yick Wo v.
Hopkins (1886) San Francisco laundry law had been struck down
because it granted power to public officials with no guidelines for its
application. The court had had argued that power without guidelines for
its application: opens opportunities for abuse wherein fair laws can be
applied unjustly to minorities: a violation of equal protection clause of
the 14th Amendment
o Charlie Houston’s variation on the Margold theory: target graduate
schools- the arena in which whites were most vulnerable and least likely to
respond with anger. Educational facilities for blacks were neither separate
nor equal, just non-existent. The states would have to build separate
graduate schools or admit blacks to existing ones.
o See Murray v. Maryland (1935); Missouri ex. rel. Gaines v. Canada (1938); Sipuel v. Oklahoma State Board of Regents (1947); Sweatt v. Painter (1950); McLaurin v. Oklahoma State Regents for Higher Education
Murray v. Maryland (1935)
- Donald Gaines Murray sought entry to the University of
Maryland Law School.
- To meet separate but equal standards, the state had built a junior
college for the benefit of Negroes and had provided out of state
scholarships for Negroes seeking degrees in subjects not available at
Maryland’s colored colleges.
- Thurgood Marshall’s strategy:
o Taft had left the door open to de-segregation in his
Gong Lum v. Rice decision: “Had the
petitioner alleged that there was no colored school in Martha Lum’s
neighborhood a different question would have been presented.”
o The separate part of the separate but equal argument had been
legitimized by the Court several times before, but its position on cases
where the facilities offered blacks were inarguably not equal had never
been directly tested.
- June 25 1935: Judge Eugene O’Dunne of the Baltimore City Circuit Court
issued a writ of mandamus ordering University of Maryland to admit Murray.
- January 1936 Maryland Court of Appeals:
o "Compliance with the Constitution cannot be
deferred at the will of the state. Whatever system is adopted for legal
education must furnish equality now.”
In 1937 Marshall attempted to integrate Baltimore County high schools on
the grounds of unequal facilities (there was no Negro high school). June 1937
ruling: Instead of suing for entry to a white school, Marshall should have
sought the requirement that the county pay tuition for entrance into a
colored high school in Baltimore. (196)
Missouri ex. rel. Gaines v. Canada (1938)
- Lloyd Gaines sought entry to a University of Missouri
Law School because Lincoln University, the state supported black college,
did not have a law school. The state instructed Gaines to apply to an out
of state law school and offered to pay his tuition, over and above
- Missouri ruled against Gaines.
- The Supreme Court heard the case in 1938.
- Charles Houston did not challenge Plessy, but he insisted that the Court
enforce the principle of equality and offer Negroes a black law school as
good as the white one.
- Hughes opinion:
o Court found for Gaines:
o A huge milestone: the same principle could apply to colored high school
students deprived of equal facilities, like those in Baltimore County
(and then why not to teacher’s salaries, length of school term, bus
transportation, parks, libraries, hospitals.)
Smith v. Allwright (1944) (see Grovey v. Townsend)
- NAACP assault on the white primary continues with
added ammunition after Steele v. Louisville and Nashville Railroad
(1943) in which the Court had ruled that a white labor union could not
enter into contracts which discriminate against minority workers.
- The Texas white primary had also been shaken in United States v.
Classic (1940) when the Court ruled that the federal government could
regulate the primary as well as the federal elections “where the primary is
by law made an integral part of the election machinery.”
- Marshall now saw the opportunity to attack the white primary now that the
Court’s decisions had clearly ruled primaries to be state actions.
Excluding black voters plainly violated the 15th
- Reed Opinion:
o Classic had established that the delegation
of a state function to a political party, such as fixing qualifications
for voting, made the party’s actions potentially the state’s actions, and
the people’s power to vote to elect federal officials could “not be
nullified by a state through casting its electoral process into a form
which permits a private organization to practice racial discrimination….”
- Sheer intimidation would continue to block black voting in the Deep
South until the Civil Rights Movement of the 1960's culminated in the
Voting Rights Act of 1956
Shelley v. Kramer (1948)
- attack on neighborhood housing covenants as a form of
state action and therefore a violation of equal protection and due process
clauses of the Constitution.
- see Buchanan v. Warley (1917); Shelley v.
Kramer (1948) as well as 90's debate on constitutionality of defacto
segregation resulting from residential segregation: Oklahoma City v. Dowell (1990) Pitts v Freeman (1991) Missouri v. Jenkins (1995)
- Houston loads brief with economic and sociological arguments exploring
the social effects of discrimination. The question was not to going to be
decided on a purely legal basis.
- Truman intervention: The President’s Committee on Civil Rights (1947)
inspired by outrage at lynching in South.
- Tom Clark’s amicus brief on Shelley v. Kramer (253)
- Reed opinion:
o “… the states have made available to private
individuals the full coercive power of the government to deny to
petitioners on the grounds of race, or color, the enjoyment of property
rights in premises which petitioners are willing and able to acquire and
grantors are willing to sell.”
o Restrictive Covenants were still private and legal acts of
discrimination, but they were unenforceable by resort to the courts.
Sipuel v. Oklahoma State Board of Regents (1947)
- Faced with the recent Gaines
precedent and an order to provide Ada Sipuel with a legal education ‘as
soon as it does’ for white students, university officials roped off a
section of the state capital and called it a law school even though the
pretend school had no library and no faculty of its own. (Irons 56)
- Marshall sought for the first time to take on the whole separate but
“Equality, even if the term be limited to comparison
of physical facilities, is and can never be achieved… there can be no
- “Exclusion of any one group on the basis of race automatically imputes
a badge of inferiority to the excluded group.”
- The District Court ruled
o Oklahoma had satisfied the separate but equal test
by creating a law school for blacks,
o but later, after the Presidential election returned Truman to the White
House, they backed down and admitted Sipuel to the school.
Sweatt v. Painter (1950) Texas
- District Court 1946
- Another step towards assaulting the separate aspect of the separate but
- Sweatt seeks entry to the University of Texas Law School.
- After state judges ordered school officials to provide him a legal
education substantially equivalent to that provided whites, they responded
by designating the basement of an office building a law school for
- Marshall argues in 1946 in Texas District Court that an essential
facility of a modern law school consists of one’s classmates. He calls
professional sociologists to testify that segregation prevents the student
from understanding the group from which he is segregated and intensifies
suspicion and mistrust between Negroes and whites.
- The District Court ruled against Sweatt, and it would take another three
years before the case came before the Supreme Court.
McLaurin v. Oklahoma State Regents for Higher Education (1950)
- District Court 1948
- After the Sipuel case, McLaurin was admitted
to Oklahoma University Law School but only on a segregated basis, isolating
him from other students. He had been granted equality in every way except
segregation itself. Did that isolation cause him to receive an inferior
- Marshall argued, “they can build an exact duplicate but if it is
segregated it is unequal.”
- Attorney generals of eleven former confederate states filed an amicus
brief which warned the justices that Southern whites do not “want their
women folk in intimate social contact with Negro men.” (Irons 57)
- Vinson opinion:
o In both cases the Court carefully avoided inserting
itself into the fiercely defended social arrangements of the South. It
also wanted to protect its own pro-segregation precedents. So the
decision was narrowly worded to apply to graduate instruction only.
o The Court insisted that equality of educational opportunity included
"those qualities which are incapable of measurement but which make
for greatness in a law school.”
- The reputation of the school, student access to
faculty, the influence of alumni, student interaction in classes. All
of these intangible aspects of education are essential to the quality
- Vinson did not assert that these qualities could not be present in a
separate school- if it had existed-- Plessy was still the law.
o The Court ordered Sweatt’s entry to law school and ordered that
McLaurin no longer be isolated on the University of Oklahoma campus, but
it avoided use of the word ‘segregation’. Equality had to be real or
separation was not constitutionally tolerable. And if separate facilities
were not available, harassments or restrictions within the bi-racial
school were not allowable.
Briggs v. Elliott (1950)
- Clarendon County, South Carolina US District Court,
Parker, Waring and Timmerman, Judges
- NAACP Strategy: argue both the inequality of facilities and the basic
discrimination of segregation.
- The state caught Marshall off guard by immediately conceding that
inequities existed in the facilities provided for whites and blacks, and
they announced that the state had taken action to upgrade black schools.
Marshall rejected the ‘good faith efforts’ made by the county to provide
equal facilities for blacks by arguing that 14th Amendment rights exist in
the present, not some indefinite future.
- Expert sociologists and psychologists offer evidence that segregation,
among other acts of prejudice, has detrimental effects on the Negro child:
confusion concerning basic moral ideology: segregating groups are the same
people who teach him or her about democracy, brotherhood and love of fellow
- Kenneth Clark, a social psychologist, had used black and white dolls in
tests with children to substantiate these theories.
o (“Which doll is the nice doll?" "Which
doll looks like you?" "Which doll do you want to play
o Clark concluded “these children in Clarendon County, like other human
beings who are subjected to an obviously inferior status in the society
in which they live, have been definitely harmed in the development of
o These tests were vulnerable to criticism concerning the size of the
sample Clark used and also the fuzzy terminology he used, it could be
argued, predetermined the results, but the states attorney did not
challenge Clark’s findings.
- The State argued that problems of race are not soluble by force but by
the slow processes of community experience. “You can’t pass laws on the
mores of people, their culture, their cumulative heritage. You can’t have
changes suddenly or by degree; one has to grow up to them.”
- Judge Parker’s opinion:
o “Segregation of the races in the public schools, so
long as equality of rights is preserved, is a matter of legislative
policy for the several states, with which the federal courts cannot
o Clark’s testimony was ignored; instead he relied on judicial decisions
‘as overwhelming authority which we are not at liberty to disregard on
the basis of theories advanced by a few educators and sociologists.”
o The problem of segregation at the common school level is different from
the graduate school level
§ Education is compulsory
§ Schools make a compact with the parent in raising the child.
§ Policy is, therefore, governed by legislative choice not
o The state was directed to promptly furnish equal educational
facilities for Negro Children.
- Judge Waring’s dissent (committing social hari-kari in the town of
Charleston where he had spent his whole career)
o The whole Jim Crow system “is unreasonable,
unscientific and based upon unadulterated prejudice.”
o After blasting hypocritical white supremacist politicians for
threatening to disband all public schools if equality were to be granted
and after criticizing his colleagues for their justification of school
segregation laws by referring to Plessy,
a case about a railroad car, Waring accepted Clark’s testimony and
declared that segregation is a social evil which poisons the minds of
children white and black.
o He concluded that the place to stop segregation is in the first grade,
not in graduate school.
o “Segregation is per se inequality.” (See Thomas
concurrence in Missouri v. Jenkins 1995)
Brown v. Board of Education of Topeka, Kansas (1951)
- US District Court for Kansas
- Bob Carter’s effort to blend a social and psychological attack on
segregation with the more straightforward legal objections to
- Redefining “curriculum”: Jack Greenberg leads Prof. Hugh Speer,
education, University of Kansas, through testimony defining ‘curriculum’:
it is not merely the school's course offerings but the total school
experience of the child: the development of his personality, his
social adjustment, social skills and attitudes. “The more heterogeneous the
group in which the children participate, the better they can function in
our multi-cultural and multi-group society.”
- Asserting the psychological damage of segregation: Louisa Pinkham Holt, University of Kansas psychologist testifies
that the legal enforcement of segregation by itself denotes the inferiority
of the Negro group and interferes with ego-identity leading to "the
apathetic acceptance, fatalistic submission to the feeling others have
expressed that one is inferior…”
- Judge Huxman’s opinion:
o The Supreme Court had confined its decision to
weighing equal protection when subjected to segregation in graduate
o Finding of Fact, though, cited Holt’s testimony, acknowledging that
segregation retarded the educational and mental development of Negro
children. (see Warren opinion in Brown 1)
Bulah v. Gebhart; Belton v. Gebhart (1952)
- Delaware District Court
- The strongest social and psychological attack yet on Plessy.
- Frederic Wertham, Lafargue Clinic, Harlem psychologist argues that
segregation confirms or sanctions in white children some of the worst
prejudices absorbed from other sources in the community. In the mind of the
Negro child, segregation creates an unsolvable and inevitable emotional
conflict, for they interpret it as punishment that is clear cut, performed
by the state; it lasts over an extended time period and is bound up in the
whole educational process.
- Judge Seitz’s opinion:
o He acknowledged that the practice of racial
separation “creates a mental health problem in many Negro children with a
resulting impediment to their educational progress.”
o Segregation alone creates inequality.
o He agreed with the plaintiff that separate but equal should be rejected
but he argued that its rejection had to come from the Supreme Court
o He rejected Parker’s position in Briggs which accepted the efforts that
the schools had made to equalize facilities and ordered the white public
schools to admit black children.
o The first real victory in the campaign according to Marshall.
Davis v. County School Board of Prince Edward County (1952)
- School strike by Moton High School students led by
Barbara Johns, niece of Vernon Johns, demanding not only better facilities
but also integration.
- US District Court: Dobie, Hutchinson, and Bryan, judges
- NAACP strategy (Spottswood Robinson and Oliver Hill)
o Convince court to declare schools unequal
o And declare segregation unconstitutional
- State witness admitted that the schools were not equal but argued that
black students were not interested in many of the courses and activities
offered at white schools.
- Kenneth Clark argued, “Segregation is prejudice concretized in society”.
- State rebuttals to Clark’s testimony:
o After asking Clark questions about his skin color,
Moore ridiculed Clark’s test by acting “like a 'darky’as he played the
part of a student responding to Clark’s tests. He argued that Clark’s
findings were only inferences drawn from loaded questions.
o Testifying for the state, Columbia psychologist Henry Garrett asserts
that “the principle of segregation is long and well established in
American life: boys and girls, Catholic and Jews, slow learners and quick
learners are segregated without stigma. The mere act of segregation has
no particular relevance to personality development. Given the temper, mores,
customs and backgrounds of the people of Virginia, the Negro high school
student will get a better education in a separate school than he will in
a mixed school.”
(See Thomas concurrence in Missouri v. Jenkins 1995)
- State argues that any immediate, court mandated desegregation of
schools would be catastrophic for education because the people of Virginia
were in no way prepared for the drastic change. The people’s commitment to
public education would be weakened. State hints that the people would close
their public schools rather than integrate them.
- Court opinion:
o Racial separation rested “neither upon prejudice nor
caprice nor upon any measureless foundation but had “for generations been
a part of the mores of the people. To have separate schools is their wont
and use.”; furthermore, the authority to segregate schools rested within
the state’s police power “to legislate with respect to the safety,
morals, health and general welfare” of its citizens.
o Local and state authorities are moving with speed to equalize
Bolling v. Sharpe (1951)
- Washington, DC District Court
- Rather than citing unequal facilities, James Nasbrit (NAACP)
o cites the 5th Amendment’s due process clause as
justification for overturning Plessy, arguing that the liberty of black
students is unduly constrained by segregation laws.
o He bases his case upon the fact of segregation itself: the burden for
proving a reasonable basis or public purpose for segregation was on the
o He cited the forced relocation of Japanese-Americans during WWII as an
emergency/temporary measure justified by a pressing public necessity- not
racial antagonism (Hugo Black in Kometsu v. United States).
o Nasbrit argued that lacking any emergency rationale for segregating
black students in Washington, the congressional legislation mandating
segregation were in fact “bills of attainder” inflicting punishment
without a judicial trial.
- The Court recognized the district’s argument that the 1850 legislation
mandating segregation had not punished colored children but had sought to
extend educational opportunities to them for the first time.
Irons, Chapter 8 “We Only Took a Little Liberty”
Brown v. Board of Education of Topeka, Kansas
- Five cases rolled into one: Briggs v. Elliott, Brown v. Board of
Education of Topeka, Kansas, Bulah v. Gebhart; Belton v. Gebhart, Davis v.
County School Board of Prince Edward County, and Bolling v. Sharpe.
- Federal Government’s amicus brief on the cases (Philip Elman, acting for
Attorney General McGranney and Solicitor General Stein
o Elman was free to look at the segregation issue from
a national, even international perspective.
o He argued that the mistreatment of blacks, particularly in the nation’s
capital, damaged the United States’ reputation abroad and was “taken as a
measure of our attitude towards minorities generally,” damaging the US’
moral leadership in world affairs.
o He quotes from 1947 President’s Committee on Civil Rights report about
the embarrassment caused by complaints of minority visitors in a
segregated city, but he also cites the problems faced by blacks who try
to move into the city and must contend with substandard housing, inferior
schools, inferior health care, and lower paying jobs—all results of
o He describes how segregation plays to the propaganda purposes of Cold
War rival, the USSR and how the UN has condemned segregation.
o Finally, he recommends an “orderly and progressive” transition to
- Arguments before the Justices:
o On the Brown case, Carter (NAACP),
§ in response to a Frankfurter prod, urged the
judges to directly face the separate but equal doctrine articulated by
Plessy and over-rule it. He argued that the constitutional invalidity
of separate schools stems from the act of segregation itself: all evidence
of inequality was insignificant compared to the simple fact that racial
segregation reflected the attitude of whites that blacks were inferior.
Using the law to enforce this attitude violated the equal protection
clause of the 14th Amendment.
§ Carter also cited the Hirabayashi (1943) 5th Amendment Case in
which the Court had found racial classifications (which led to the
relocation of Japanese Americans) to be inherently suspect and only
permissible due to a compelling national security crisis. Frankfurter
asked Carter if there were any rational basis for the classification
and separation of black students from whites. Carter replied, “No.”
o Paul Wilson had been drafted by the Kansas Attorney General to speak
before the Court, and he was unprepared; in his presentation he clung
closely to the Plessy precedent:
§ He dismissed the social science testimony cited by
Judge Huxman, arguing that no direct evidence had been presented to
prove that Linda Brown or any other black student in Topeka had
suffered any psychological or educational damage from segregation.
§ He argued that Plessy had stood for 50 years without reversal and
that 17 states relied on the separate but equal doctrine in segregating
o Marshall (NAACP), seeking to overturn Briggs v.
§ attacked the constitutionality of racial
classifications by citing the Court’s decision in Nixon v. Herndon, the
decision which overturned white primaries and quoted Holmes opinion:
“color cannot be made the basis for a statutory classification.”
§ He argued that this decision, with Hirabayashi, should serve as
better precedents to judge segregation than the Plessy decision.
o John Davis (South Carolina) had argued more cases before the Court
than Daniel Webster.
§ Response to Burton question: “Had social
conditions changed in the South such that what was unconstitutional
when the 14th Amendment was adopted may be constitutional now?"
Davis had to admit that changed conditions may affect public policy,
but he argued that changing laws to meet these conditions was a
§ Frankfurter asked him about the ‘fluidity’ of our understanding of
the definition of the 14th Amendment’s use of the term ‘equal’ (in
comparison to our changing understanding of the interstate commerce
clause. Davis had to admit that the definition of our understanding of
equality could change but he argued that the lawmakers who had approved
the 14th Amendment had not intended to prevent the separation of whites
and blacks. (They had passed segregation laws for Washington DC public
facilities that same year.)
§ Davis dismissed the sociological findings of Clark and other experts
as ideologues who “find usually what they want to find,” and he
dismissed the ‘doll test’ for its limited sample.
§ He concluded by asking the judges to consult the wishes of parents,
black and white: shouldn’t they be polled before integration is forced
o Nabrit (NAACP), arguing the Bolling case,
§ asserted that the due process clause of the 5th
Amendment directly protects the liberty of each citizen (unlike the
14th Amendment’s equal protection clause which is directed at states.)
Nasbrit argued that liberty, unlike equality which can be measured, is
either possessed by an individual or it is not. Therefore, any
interference with the liberty of a citizen must be justified by the
o Korman, Washington DC’s attorney,
§ Shocked the court by quoting Dred
Scott as part of his argument that the Court’s rulings should
not be subject to the wavering popular opinions of the day.
- The Court’s decision was momentous because it would affect more than 12
million students in 17 states and Washington DC: almost all with white
school boards elected by white voters. Their decision threatened to provoke
widespread disobedience and potential bloodshed.
o Notes on Conference (form papers of Burton and Jackson)
§ Vinson (Kentucky) (+) feared that striking down
segregation would result in the complete abolition of the public school
system in the South.
§ Black (Deep South) (-) Hard vote to reverse.
§ Reed (Kentucky) (+) Segregation is constitutional: equality of
facilities needs to be mandated.
§ Frankfurter (Harvard Law) (-) proponent of judicial restraint (even
incases of legislation against free speech) but he advocated reversal,
but he feared drastic change and suggested deferring decision for a
year in which the lawyers would prepare briefs exploring the lawmakers’
intentions when framing the 14th Amendment.
§ Douglas (Far West) (-) Simple decision: The state cannot classify by
color for education.
§ Jackson (New York) Undecided
§ Burton (-) Eager to upset segregation but believes that integration
must proceed slowly
§ Clark (Texas) (-) Rejected Jim Crow but observed that the South would
object to Yankee meddling and argue that they had been led to believe
that separate but equal was OK
§ Minton (Indiana) (-) Truman crony, firm stand against segregation.
o Frankfurter thought that the Court needed to make a unanimous
decision but that would take time. He composed five questions for the
lawyers to prepare briefs in answer to:
§ Did the 14th Amendment framers intend to abolish
§ Did they believe that either the Congress or the federal courts could
§ If the framers had not intended to address the question of
segregation, could the Court construe the amendment’s intention in a
new way to abolish segregation?
§ (Questions 4 and 5) If the Court abolished segregation, how might it
frame orders to implement the ruling?
- September 8: Chief Justice Vinton dies of a heart attack.
o Frankfurter’s response: “This is the first
indication I have had that there is a God.”
o Eisenhower nominates California Governor Earl Warren for the post of
Chief Justice, bypassing Jackson.
- December 7, 1953: Second Round of Arguments heard:
§ The lawyers on both sides have differed in their
responses to the historical quiz. Even the attorney general “says he
does not know which is correct. So your Honors are afforded a
reasonable ground for selection.”
§ He ended his presentation in tears claiming that South Carolina
intended to provide equal educational opportunities for both whites and
blacks. Should that be thrown away over a mere question of “prestige”?
§ “Exactly correct. Ever since the Emancipation
Proclamation the only thing the Negro has been trying to get is the
same social status s anybody else regardless of race.”
- Warren was determined to get another unanimous decision and brief and
forceful opinion. The Justices had to speak with one voice in language
which the American people could understand.
o Frankfurter: “All deliberate speed.”
o Jackson: he wanted a frank admission that overturning segregation had
no explicit constitutional warrant.
o Reed: still opposed: the 14th Amendment only provides for equal
treatment, not identical
Warren Opinion for unanimous court (May
o Dismisses Plessy in one sentence as a precedent
involving no0t education but transportation
o “We cannot turn the clock back” to the 19th century when Plessy was
o Dismisses evidence of whether schools had been or are being equalized
o Warren emphasized the psychological impact of segregation on black
§ The primary goal of education is to foster
cultural values and good citizenship. Could that happen in segregated
§ He quotes Huxman’s finding in the Brown case: Louisa Holt’s argument that separation
denotes inferiority of Negroes and diminishes the motivation of the
child to learn.
§ “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.”
§ Warren also ruled that segregation violated the due process clause of
the 5th Amendment: liberty cannot be restricted except for a proper
§ Conclusion: Separate educational facilities are inherently unequal
and violate the equal protection clause of the 14th Amendment.
o Southern governors girded for massive resistance to
o Schools in Baltimore were opened to both races in the fall of 1954, but
only 4% of the city’s black children attended schools with whites.
o One in ten Kentucky school districts announced plans to integrate their
o The Deep South waited to see what federal judges would do.
Brown II (April 11, 1955) Implementation
- NAACP argues that the Court had the duty to give black
children their constitutional rights without delay. They called for a
uniform deadline for school officials to integrate schools.
- Southern officials feared that potential violence and massive logistical
problems demanded delay. They also said that they could not foresee a
complete solution to the problem ever due to the differing educational
capabilities of blacks and whites as well as different standards of health
- US government’s advice:
o School segregation was ‘part of a larger pattern of
racial relationships [which had] existed for a long time.’
o Therefore, they mandated a two step process:
§ 90 days to submit integration plans
§ orders to implement integration “with all deliberate speed”
- Warren’s opinion:
o Varied local circumstances required practical
flexibility on the part of federal judges
§ School plant conditions
§ Transportation systems
§ Revision of school districts and attendance areas into compact units
o Therefore, integration orders needed to be given but implemented
“with all deliberate speed.”
The Post-Brown Saga
Irons, Chapter 10 “War Against the Constitution”
The Southern Legal Strategy of Resistance
- Judge Parker’s Ruling in Response to Brown Decision (1955) (Briggs)
o The legal justification for “freedom of choice”
plans to resist integration
o “[The Court] has not decided that the federal courts are to take over
the public schools of the states. It has not decided that the states must
mix persons of different races in the schools or must require them to
attend schools or must deprive them of the right of choosing the schools
they attend. What it has decided, and all that it has decided, is that a
state may not deny to any person on account of race the right to attend
any school that it maintains. This, under the decision of the Supreme
Court, the state may not do directly or indirectly; but if the schools
which it maintains are open to children of all races, no violation of the
Constitution is involved even though the children of different races
voluntarily attend different schools, as they attend different churches.
Nothing in the Constitution or in the decision of the Supreme Court takes
away from the people the freedom to choose the schools they attend. The
Constitution, in other words, does not require integration. It merely
forbids discrimination. It does not forbid such segregation as occurs as
a result of voluntary action. It merely forbids the use of governmental
power to enforce segregation. The 14th Amendment is a limitation upon the
exercise of power by the state or state agencies, not a limitation upon
the freedom of individuals.” (175)
- Cooper v. Aaron (1958)
o “massive resistance” to de-segregation in Arkansas
created a crisis when Arkansas Governor Oval Faubus called out state troops
to prevent nine black students from enrolling at Central High in Little
o Faubus’ out right refusal to de-segregate Central High precipitated a
power struggle between the Supreme Court and the state over sovereignty:
what good is the Constitution if government officials refuse to obey its
o Judge Lemley issues order delaying de-segregation in Arkansas public
schools based on “chaos, turmoil and bedlam” at Central High and state laws
passed which had given Governor Faubus the power to take over public school
o Richard Butler for Arkansas Board: “…if the governor of a state says that
a United States Supreme Court decision is not the law of the land, the
people of that state, until it is really resolved, have a doubt in their
mind and a right to have a doubt.” (185)
o The Court issued an unsigned order reversing Judge Lemley’s two-year
delay of integration.
o Court Decision (signed by all nine justices)
§ Article Six of the Constitution makes the
Constitution the supreme law of the land, and federal judges had taken
oaths to uphold the Constitution: “No state legislator or executive or
judicial officer can wage war against the Constitution without violating
his undertaking to support it.”
§ The Court demanded the obedience of the States to the command of the
Irons, Chapter 11 “Too Much Deliberation and Not Enough Speed”
- Southern Strategies to avoid or Limit Integration (188-89)
o “Freedom of Choice” plans which allowed parents to
choose which school, white or black, to send their children to.
o “Pupil placement laws” which allowed school boards to select schools for
children according to ‘suitability’
o “Minority to Majority Plans” which allowed parents to elect to transfer
their children to schools of their racial majority
o “Massive Resistance Laws” which closed public schools and provided public
funding for private academies.
Griffin v. Prince Edward County (1964)
(see Davis v. County School Board of
Prince Edward County (1952))
- In September 1959 the local school board in Prince Edward County,
Virginia, closed the public schools and provided tuition grants for whites
to enroll their children in private academies.
- The county’s black children had no school to attend between 1959-64.
- District Judge Lewis strikes down tuition grants for private schools but
does not rule on whether closing of public schools was constitutional.
- 4th Circuit Court of Appeals reverses Lewis, demands the re-opening of
public schools, but refuses to dictate to the local school board what type
of schools they had to provide
- Civil Rights Act of 1964 provides a big carrot to local school districts
in the form of grants, but the law would only provide funding to
- Warren Court:
- Hugo Black decision:
o “too much deliberation and not enough speed” had
been exercised in the de-segregation of the county’s schools
o yet Black ducked the question of whether the county was legally
required to operate public schools
o Court rules that funding private academies in order to maintain
segregation is unconstitutional
o Court gives Judge Lewis the power to levy taxes to raise funds adequate
to open and run a public school system (over objections by Clark and
States v. Jefferson County Board of Education (1966)
- 5th Circuit Court of Appeals
- addressing the constitutionality of “pupil placement laws” and “freedom
of choice plans”
- Judge Wisdom blasts Parker of the 4th Circuit who had argued in 1955 that
the Constitution does not require integration, only the end to overt
segregation imposed by state laws or officials. School officials had used
this ruling to justify evasive tactics such as “pupil placement” laws and
“freedom of choice” plans.
- Wisdom faults Parker for limiting integration orders to those children
whose parents had actually brought suit.
- Wisdom lists five primary obstacles to meaningful integration:
o Closing public schools and white flight to suburbs
o Private academies with public financing
o White teachers who refuse to work in integrated classrooms
o Negro children who prefer neighborhood schools
o Gaps between white and black test scores
- Wisdom’s ruling:
o Orders a system-wide policy of integration
o Rules “pupil placement” and “freedom of choice” unconstitutional
o Orders a “unitary” public school system implemented
o Wisdom amended Judge Harlan’s 1898 dissent to Plessy:
§ Harlan had asserted that the Constitution was
§ Wisdom said that the 14th Amendment mandated that discrimination
could not be based on race, yet judging whether good faith efforts had
been made to implement integration required taking race into account.
Green v. New Kent County (1968)
- Establishing the “Green Standard” to decide whether
school boards needed to continue to report regularly to the federal courts
on the degree to which de-segregation had been accomplished.
- The Supreme Court applied Wisdom’s blueprint to end freedom of choice
plans to avert the meaningful integration.
- Nixon campaigns for President on “Southern Strategy” appealing to white
voters who objected to federal judges meddling in their schools.
- Warren Court:
- Brennan opinion:
o School officials must create “unitary” systems in
which racial discrimination is eliminated “root and branch”.
o However, Brennan acknowledged that although “freedom of choice” might
pass constitutional muster, when other options existed (such as
re-zoning), it could not be accepted.
o Judges would maintain their direct control over the school boards’
decisions until it became clear that state imposed segregation had been
o Thus ended the “deliberate speed” option: plans had to be formulated
v. Holmes County Board of Education (1969)
- 5th Circuit judges delay implementation of
desegregation for another year in order to avert “chaos, confusion and
- Greenberg (NAACP) argues that “segregation forever” has been replaced by
- Burger Court:
- Unanimous Court Decision
o Orders “unitary” school system in which no student
could be excluded because of race
Carter v. West Feliciana Parish School (1969)
- Court re-iterates mandate of integration now
- Burger memorandum (really a dissent)
o He indicates that local authorities knew more about
the details regarding desegregation and should be allowed to exercise
their discretion in the formulation of plans.
- Despite the court’s efforts to mandate integration,
school districts began assigning students to neighborhood schools which
remained segregated due to increasing residential segregation within cities
into black and white. How could integration be achieved in neighborhoods
where defacto segregation had taken hold?
- The Court’s answer: Busing
Chapter 12 “Do Two Wrongs Make A Right”
Swann v. Charlotte-Mecklenburg Board of Education (1971)
- Burger Court:
- Case addresses defacto segregation resulting from “residential school
- 1957 Dorothy Counts was allowed to attend her neighborhood school,
Harding High, but was harassed into withdrawing.
- 1964 Darius Swann decides to test attendance district carved to keep out
all but a few black children. (Blacks could transfer out but not in: a
majority to minority transfer policy.)
- Julius Chambers (NAACP) takes case.
- District Judge Craven argues that school officials are under no
obligation to re-draw district lines to assure integrated schools.
- 4th Circuit Court decision: MacMillan opinion (1969)
o Noted that attendance zone had been drawn precisely
around black residential areas.
o Argued that since whites had not objected to busing used to maintain
segregation, only ‘emotion’ would get in the way of busing to
o “The Finger Plan” (Dr. John Finger, Rhode Island College)
§ Integration in all schools should reflect the
district percentages of white and black
§ Maintains a tipping point of 40% black students (the upper limit of
§ Black students in grades 1-4 would be bused to white schools
§ White students in grade 5 would be bused to inner city black schools
- Supreme Court arguments
o Julius Chambers (NAACP) argues that residential
segregation resulted from years of state actions: zoning laws, urban
renewal programs, and public housing placement. Jim Crow schools had been
perpetuated by neighborhood school policies and freedom of choice plans
o Marshall: Do you bus white kids past black schools? What’s wrong with
busing to achieve integration? (Waggoner: “Do two wrongs make a right?”)
o Justices recognize that ruling defacto segregation unconstitutional in
schools would have a huge impact on Northern cities in which black
ghettos and been created by “state action”.
- Burger opinion (unanimous decision)
§ Judicial powers may be used in this case to mandate
integration, but such orders could only be made in cases in which a clear
constitutional violation had been made by a state official acting
deliberately to exclude black children from school integration.
§ Burger did not mention the term “state actions” in his opinion.
§ The Court acknowledged that it could not address all instances of
racial prejudice that create the problems which contribute to
disproportionate racial concentrations.
§ Burger asserted that the existence of a small number on one-race
schools within a district did not necessarily indicate the deliberate
practice of segregation.
§ The Court allowed the use of busing as one tool of desegregation since
busing was already an integral part of the public education system.
§ Burger clarified the “Green standard”: Once a school district had
achieved full compliance and become a “unitary” system, the federal
courts would withdraw its supervisory role and would not have the
authority to intervene again unless it was shown that the school board or
other officials had deliberately sought to affect school racial
§ (So white flight effects on racial composition of schools would not
trigger federal intervention.)
February 1970: Busing violence in Pontiac, Michigan; Wilmington, North
Carolina; and Jacksonville, Florida.
Gallup Poll 1971 indicates huge public opposition to busing.
An Anti-Busing Amendment to the Constitution founders in Senate Committee.
Nixon: “I do not believe that busing to achieve racial balance is in the
interest of better education.
Irons, The Courage of Their Convictions (1982) Chapter 12 “Demetrio Rodriguez
v. San Antonio
v. San Antonio (1973)
- 1968, Federal Court, San Antonio
- Demetrio Rodriguez and six other parents filed suit against members of
the San Antonio school board charging that the children in their district
suffered from inferior education because of the inequitable property-tax
basis of the state’s funding system. The parents asked the federal court to
find the system in violation of the Constitution and to order the state to
equalize the funding of all 1000 school districts in Texas.
- The Edgewood district had no money to rebuild crumbling schools and hire
more qualified teachers. More than 90% of Edgewood students were Hispanic,
6% were black, and fewer than 5% white.
- Arthur Gochman, the lawyer who organized the suit, had recently read a
federal court decision which struck down funding disparities between
schools in a Washington D.C. school district, and he believed that its
holding could be expanded on a statewide basis.
- Gochman ‘s complaint:
o 14th Amendment included education as a fundamental
right which states must provide on an equal basis to all students.
o Poor families constituted “a suspect class” which deserved special
protection against discrimination by state officials.
o Texas officials must present a ‘compelling’ reason to justify the
property-tax basis of school funding.
- The state sought to dismiss the case, but the judges denied the
motion; then the state informed the judges that the state legislators would
be considering school funding reform in January 1971, so the judges
postponed the hearing again. The state legislature did not act on school
funding reform, and the judges ordered the hearing to proceed.
- During the 1971 trial Gochman demonstrated the funding disparities by
contrasting the spending level in Edgewood ($356 per student in 1970) with
the spending level in Alamo Heights, the richest district in the city ($594
per student in 1970).
- Federal Court ruling:
o The Texas school-finance system violated the equal
protection clause of the 14th Amendment.
o They ruled that “wealth” discrimination was “suspect” under the
Constitution and that education was a ‘fundamental’ right.
o They ruled that the state had failed to establish even a reasonable
basis for the funding system based on property values.
o The state was given until 1974 to rectify the funding disparity.
- Threatened with massive funding increases, several states filed amicus
briefs with the Supreme Court as surprised Texas lawyers prepared their own
- Arguments before the Supreme Court: October 1972:
- Wright, the state’s lawyer,
o Acknowledged that the funding system was imperfect,
but he focused his argument on demonstrating the property tax system of
funding to be rational. He argued that eliminating funding disparities
“would impose a straight-jacket on the public schools of fifty states.”
o He argued that there would be ‘very little left of local government’ if
the decision were affirmed.
o He argued that Texas was only required to provide a ‘minimum’ level of
education to its people.
o In response to a Douglas question, he argued that the racial and ethnic
factors in the case were simply ‘a happenstance’.
o He insisted that the legislature must provide remedies in situations
like this one.
- Gochman’s argument::
o District wealth ‘perfectly correlates’ with district
o The Court questioned whether education was a ‘fundamental right’
protected by the Constitution, and Gochman responded that education “is
related to every important right we have as citizens.”
o He responded vigorously to the state’s claim that it was only
responsible for providing a minimum level of education: “What is a
minimum? Are we going to have two classes of citizens—minimum opportunity
students and first class citizens?”
- Powell Opinion (5-4 vote)
o Reversed lower courts and upheld the property tax
basis for funding public schools.
o Powell acknowledged that ‘substantial disparities’ existed in the
funding of Texas school districts, but he found “neither the suspect
classification nor the fundamental interest analysis persuasive”:
§ Laws which discriminate against individuals are
unconstitutional, but in this case the plaintiffs were part of “a
large, amorphous class, unified only by the common factor of residence
in districts that happen to have less taxable wealth than other districts.”
§ Education is not a fundamental right that is essential to
o Education “is not among the rights afforded explicit protection
under our Federal Constitution.” The Constitution does not “guarantee to
the citizenry the most effective speech or the most informed electoral
choice.” (Two months earlier Powell had joined the opinion holding that
the Constitution protected a ‘fundamental right’ to abortions, a term not
mentioned in the Constitution. (291)
o Powell raised the specter of socialism: if the right to equal education
funding were affirmed, future cases might expand the claim to all of
life’s necessities: food, shelter, clothing. The poor might claim that
these factors contribute to their inability to participate in the
political process and they should therefore be protected by the courts.
- Marshall dissent:
o “a retreat from our historic commitment to equality
of educational opportunity” for poor children.
o Marshall cited more than fifty Court decisions upholding claims to
fundamental rights that the Constitution did not specifically spell out.
o He quoted Warren in Brown: Education is “the very foundation of good
- Demetrio Rodriguez: “The poor people have lost again.”
- During the next six years, the courts of six states ruled that property
tax school funding violated state constitutions. William Brennan has urged
activists to use state constitutions in seeking wider rights for their
Chapter 13 “Two Cities- One White, the Other Black”
v. Bradley (1974)
- Burger Court
- Addresses “metropolitan plans” to use busing to mix suburban and city
schools to achieve integration (across school district lines)
- Northern cities’ growth of black ghettos during the 1950’s and 60’s.
- District Court Judge Roth ruling
o Detroit officials had intentionally segregated city
§ Building new schools well inside white/black
§ Allowing transfers from ‘transitional’ schools
o Orders a multi-district remedy to school segregation which included
suburban school districts in the greater Detroit metropolitan region
o “no school, grade, or classroom” would have a racial imbalance
disproportionate to the overall racial composition in the greater Detroit
o “…school district lines are simply matters of political convenience and
may not be sued to deny constitutional rights.”
- Court Decision (5-4 vote)
- Burger opinion
o Narrow majority, the first time since Brown that the
Court had not acted as one on a major desegregation case.
o Court rules that the school buses stop at Detroit city limits.
o Court affirms the tradition of local control in the administration of
schools as essential to maintaining community concern and support and,
ultimately, the quality of the educational process.
o Only a deliberate constitutional violation by school district officials
could justify the Court’s intervention- further, it had to be demonstrated
that one district’s actions had resulted in a significant segretative
effect on another district.
o A metropolitan remedy would consolidate many school districts into a
vast one and turn the federal judge into the school superintendent for
the whole area.
- Marshall dissent:
o “a giant step backward”
o remedying decades of segregation is not an easy task, yet the Court
must remain dedicated to making a living truth of the constitutional
ideal of equal justice under the law.
o Education is not a local concern; it belongs to the State at large.
o School districts do not follow city and town boundaries in many places
o The State of Michigan had created racial segregation in Detroit and now
black children had been confined to an expanding core off all-Negro
schools surrounded by a receding band of white schools.
o The Court’s ruling would hasten white flight and increase segregation
o “In the short run, it may seem to be the easier course to allow our
great metropolitan areas to be divided into two cities- one white, the
other black- but it is a course, I predict, our people will ultimately
Morgan v. Hennigan (1974)
- NAACP lawyers cited the prejudice of white Bostonians
in filing a lawsuit in Boston’s federal court on behalf of Tallulah Morgan
and other black parents against the city’s elected school committee.
- 1965 State legislature had passed the Racial Imbalance Act which
prohibited any school district with operating any schools with more than
50% minority students. In Boston, fewer than one school in five came within
10% of matching the city’s overall ratio of white to black.
- To comply with the law, school officials had to disrupt the “neighborhood
school” system in Boston and bus the black children from neighborhoods like
Roxbury to primarily Irish-Catholic white neighborhoods like Roslindale
- District Judge Harrity’s decision:
o Boston’s school committee had failed to comply with
the racial Balance Act.
o Its actions over the previous decade had ‘intentionally brought about
and maintained a dual school system’ in Boston. He noted that the
district map revealed that lines had been drawn between white and black
residential areas that were not consistent with a neighborhood school
o He directed the school committee to comply with the integration plan
formulated by the state’s education officials in compliance with the
Racial Imbalance Act. That would result in the busing of more than 18,000
students, including 8500 white students to black schools.
- South Boston erupted in violent protest that continued over the next
- The controversy resulted in the precipitous decline in the number of
students who attend the city’s public schools. At the start of the 21st
century, only 9300 white students (15% of the total) attend Boston’s public
schools; almost half of all white students attend private or parochial
- Most of the school districts involved now are more segregated than they
were when lawsuits were brought to integrate their schools.
Chapter 14, “Too Swift and Too Soon”
Oklahoma City v. Dowell (1990)
- Rehnquist Court
Souter (not seated)
- In 1990 the Court had to decide whether districts that had achieved
‘unitary status' by eliminating the vestiges of segregation could run their
schools without further judicial oversight.
- Lawyers for black families claimed that the ‘neighborhood school’ policy
had created imbalances in school attendance which required additional
remedies. Many schools now had substantial numbers of ‘one-race’schools.
- The Oklahoma City case had been argued since 1961 when Robert Dowell had
sued the city school board to enter a school system segregated by law since
1907 state constitution had been adopted.
- Federal Judge Luther Bohanon
o In 1963 ordered school officials to dismantle the
o In 1965 found that the school officials’ neighborhood zoning plan had
not produced any real integration because the city’s segregated zoning
regulations, imposed by law, had perpetuated one-race schools.
o In 1972, dissatisfied with board foot dragging, he adopted a “Finger
Plan” to achieve integration by busing elementary age students.
- However in 1985, the school board returned to a “neighborhood school”
policy under which half of the district’s schools would have more than 90%
of their students from one race.
- 10th Circuit Court ruled that Judge Bohanon had not specifically
dissolved his 1972 order to require the school board to achieve
- School Board argued that Jim Crow schools were history, that their system
offered parents choice in schools through a “majority to minority” transfer
option, but few parents had exercised this choice. He argued that the
school had achieved the Green standard and that Judge Bohanon had found the
system to be ‘unitary’. He claimed that the fact that some schools were not
integrated was beyond the board’s control. He argued that no evidence
existed that residential segregation had resulted from school
- Reagan Administration “friend of the court” Kenneth Starr took up the
question of the relationship between residential segregation and school
segregation: He argued that residential segregation cannot be considered a
vestige of school segregation once there has been “good faith compliance
with desegregation plans over a substantial period of time”. He argued that
majority black schools in the district were not so by any state action
assigning children on the basis of race but a result of individual
decisions on residence over which the courts had not control.
- Scalia pointed out that Oklahoma was not a segregated city in that
residential segregation was no longer imposed by law.
- Rehnquist opinion (5-3 vote)
o Narrow opinion in reflection of the split vote
o Local control of school boards “allows citizens to participate in
decision making and allows innovation so that school programs can fit
local needs.” The 10th Circuit Court ruling would consign a school
district ‘judicial tutelage for the indefinite future’, but the
Constitution did not demand such ‘Draconian’ measures.
o He returned the case to Judge Bohanon with instructions to decide
‘whether the board had complied in good faith’ with his desegregation
decree, disregarding the adoption of the neighborhood school plan.
- Marshall dissent: (joined by Blackmun and Stevens)
o He castigated the Court for suggesting, “that
thirteen years of desegregation was enough.”
o He chided Rehnquist for ignoring the long history of Jim Crow schools
in Oklahoma, how the state had mandated segregation in its constitution
and used restrictive covenants to establish a segregated residential
pattern, how the school board had resisted desegregation orders.
o He also asked the Court to consider in its evaluation of whether the
school board had acted with good faith the harmful experience segregation
imposes on black school children: “a stigmatizing injury”
o He argued that busing remained the most feasible means of eliminating
one-race schools in Oklahoma City but the Supreme Court no longer
possessed the will to insist upon this remedy.
- With student assignments based on the ‘neighborhood school’ policy,
Oklahoma City’s schools have become even more racially separated.
Pitts v Freeman (1991)
- DeKalb County, Georgia, 1969
- District Judge orders the closing of the all-black schools and the
assignment of students to the closest neighborhood schools, putting only a
handful of black students into white schools.
- By 1986 the demographics of Kalb County had shifted to 47% black, but
more than half these students attended schools that were 90% black while
white children were in schools with few black students.
- Despite racial imbalances, District Judge declares that the county
schools have achieved ‘unitary status’ with respect to student assignments,
but vestiges of segregation still; remained in the poor quality of
education in the county’s schools. Before supervision could be withdrawn,
these problems would need to be addressed.
- Black plaintiffs believed the judge should consider remedies such as
revised attendance zones to achieve greater racial balance.
- 11th Circuit Court: Judge Hatchett (ex NAACP):
o rebukes DeKalb County School Board
o redefines the “Green standard”
§ three years of racial equality in student assignment, faculty, staff,
transportation, extracurricular activities, and facilities (see 1968
§ directed the school board to consider other measures to achieve racial
balance including rezoning and busing
- Supreme Court composition: Thomas confirmed as Marshall’s replacement,
after a bruising battle (see Anita Hill)
- For DeKalb County, Rex Lee (Brigham Young Law School) argued that the
county now had a clean record on desegregation and the current
resegregation was the result of housing patterns not actions of the school
- Solicitor General Kenneth Starr appeared again representing the Bush
administration as a friend of the court, arguing that changes in
demographics cannot be blamed on the school board.
- Christopher Hansen (ACLU) argued that the Board had an obligation to
break the pattern of segregation. The system had always been segregated,
and the school board should be directed to finally formulate a plan that
included ‘a feasible means to achieve racial balance’.
- Kennedy opinion (unanimous reversal with three justices, including
O’Connor, concurring with objections)
o Kennedy addressed the problem of resegregation:
“Racial balance is not to be achieved for its own sake. It is to be
pursued when racial imbalances have been caused by a constitutional
violation. Once the racial imbalance due to de jure violation has been remedied,
the school district is under no duty to remedy imbalance that is caused
by demographic factors.”
o “Where segregation is the product not of state action but of private
choices, it does not have constitutional implications. It is beyond the
authority and beyond the practical ability of the federal courts to try
to counteract these kinds of continuous and massive demographic shifts.”
- Blackmun objection:
o He felt the Court should have directed the district
judge to conduct investigation into whether neighborhood segregation was
related to the actions of the school board: placement of new schools,
closure of old schools, magnet classrooms, majority to minority transfer
o He also wanted to know if school board policies had identified the
racial composition of the schools and so dissuaded parents from choosing
to live in particular neighborhoods.
o Blackmun also noted that in the 38 years since the Brown decision, “the
students of DeKalb County never have attended a desegregated school
system even for one day.”
v. Jenkins (1995)
- third case testing continued judicial oversight of
- Kansas City, Missouri 1977: city school board files suit against the
state and several districts in the city suburbs claiming that they had
created segregation in the city schools by failing to provide adequate
funds to improve the quality of the city schools and thus provoking white
flight to the suburbs.
- 1984 District Judge Russell Clark found for the city school board,
o exonerating the suburban district officials,
o but holding the state responsible for the continuing segregation of the
city and for the ‘system wide reduction in student achievement’ in the
city’s schools which he attributed to the Jim Crow system the state had
mandated by law before Brown and then perpetuated after Brown.
o He directed a wide range of remedial programs to improve the quality of
the city schools: reduction of class size, full-day kindergarten,
expanded summer school and tutoring programs, an early childhood
o He condemned the state for allowing the city’s schools facilities to
deteriorate into unsafe conditions and ordered the state to spend close
to a billion dollars to upgrade the city schools.
o “The most ambitious and expensive remedial program in the history of
o He converted most of the schools in Kansas City into magnet schools
- Saddled with huge financial burden, the Missouri government appealed
for relief from the appeals courts, claiming that they had achieved unitary
status with regards to desegregation orders.
- In 1993, the Appeals Court rejected their claim and stood behind the
Clark ruling: the salary increases and programs to provide a quality
education had improve the ‘desegrative attractivess’ of the city’s schools
and begun to reverse white flight out of the city. Until the schools met
Clark’s goal of improving student scores to meet national norms, the
funding levels would not be cut.
- Supreme Court Composition:
- Missouri’s counsel Munich attacked Judge Clark’s orders as an attempt
to get around the Milliken decision: instead of busing them, he was moving
students by improving the ‘desegrative attractiveness’ of the city schools,
but his goal of achieving ‘suburban comparability’ went far beyond the
state’s ‘constitutional violation’ of having once maintained a Jim Crow
- In response to questions about whether the additional funding had begun
to improve student performance, Munich even argued “Schools have no control
over many factors that contribute to performance, including that
individuals learn at different paces.”
- Scalia prompted Munich to argue that after the state’s provision of
‘nondiscriminatory input’ it could not be held responsible if student achievement
- Rehnquist opinion: (5-4 decision)
o Rehnquist noted that the taxpayers of Missouri had
provided Kansas City with superb facilities which had turned the school
system into a magnet district. This method of moving students within a
district was admirable as it achieved desegregation goals without busing.
o He criticized Judge Clark’s avowed goal of attracting white students
into the city because such “an interdistrict goal went beyond the scope
of an intradistrict violation.”
o Rehnquist cited Milliken for authority in striking down the Judge’s
order (even though Judge Clark had expressly noted that there was nothing
mandatory in his goal of enticing white students back into the city.)
- Thomas concurrence:
o Thomas launched a surprise attack on the basis of
the Brown case: “It never ceases to amaze me that the courts are so
willing to assume that anything that is predominantly black must be
o He expressed disdain for “the theory that black students suffer an
unspecified psychological harm from segregation that retards their mental
and educational development. This approach not only relies upon
questionable social science research rather than constitutional
principle, but it also rests on an assumption of black inferiority.”
o Thomas argued that “black schools can function as the center and symbol
of black communities, and provide examples of independent black
leadership, success and achievement.”
o The ‘racial isolation’ of blacks “is not a harm; only state enforced segregation
o “…If separation itself is a harm, and if integration therefore is the
only way that blacks can receive a proper education, then there must be
something inferior about blacks. Under this theory, segregation injures
blacks because blacks, when left on their own, cannot achieve. To my way
of thinking, that conclusion is the result of jurisprudence based upon a
theory of black inferiority.”
- Souter dissent
o He faulted the majority for refusing to accept the
obvious connection between white flight and the prior de jure segregation
of the schools: segregation had caused the white flight from the city
because of white resistance to judicial orders to remedy the effects of
segregation. Consequently, programs to eliminate the vestiges of
segregation fell within the allowable scope of judicial power.
o Souter also criticized the use of Milliken to support the decision
because the Court had already approved (by declining to object to) a
busing plan across district lines in Delaware which was different only in
scale from the Detroit plan.
- Ginsberg dissent
o Ginsberg emphasized that segregation had been in
effect in Missouri for centuries while Judge Clark’s plan had been given
only seven years to produce an effect. Curtailing desegregation at this
time struck her as “too swift and too soon.”
Parents Involved in Community Schools v. Seattle School
District No. 1 (2007)
A landmark U.S. Supreme Court decision that prohibited
assigning students to public schools solely for the purpose of achieving
racial integration and declined to recognize racial balancing as a
compelling state interest.
In an opinion delivered by Chief Justice John Roberts, five justices
held that the School Boards did not present any "compelling state
interest" that would justify the assignment of school seats on the
basis of race. Associate Justice Anthony Kennedy filed a concurrence that presented
a more narrow interpretation, stating that schools may use "race
conscious" means to achieve diversity in schools but that the schools
at issue in this case did not use a sufficiently narrow tailoring of their
plans to sustain their goals. Four justices dissented from the Court's
Prior Supreme Court cases had recognized two compelling interests for
the use of race. First, to remedy the effects of past intentional
discrimination. Seattle schools had never been segregated by law, therefore
they could not raise that interest. Schools in Kentucky had been previously
segregated by law but due to a mandated court plan the schools had achieved
unitary status in 2000, therefore, the Chief
Justice concluded the schools could not raise this interest either.
The second compelling state interest was recognized by the Court in Grutter
and that is the goal of achieving a diverse student body in higher
education. However, Roberts stated that this diverse body is not defined
only by having a great number of racially diverse students but by also
considering other factors beside race. Furthermore, the plans at issue in
this case do not use race as an assessment for broader diversity, instead,
they use solely race as a factor for assigning students to different schools.
Therefore, this case is more similar to Gratz, in which the Court
invalidated a program that solely used race as a factor.
Roberts wrote that the Schools at issue contend that a racially diverse
environment is beneficial for education and they submit this as the reason
why they consider race alone in their school assignments. However, Roberts
considers that this interest is not compelling and that the use of race for
this goal is not narrowly tailored, it is instead used for racial balancing,
which is unconstitutional. The schools base their numbers in demographics,
therefore making this goal a mean to achieve a numerical quota to achieve
racial balancing. Roberts concludes that racial balancing cannot be a
compelling state interest.
Roberts concludes his opinion for the plurality by saying: "The way
to stop discrimination on the basis of race is to stop discriminating on
the basis of race."
Justice Stephen G. Breyer, in the principal dissenting opinion,
dismissed Justice Kennedy's proposed alternatives to the labeling and
sorting of individual students by race and, in a surprisingly emotional 20
minute speech from the bench, denounced the majority opinion. “It is not
often in the law that so few have so quickly changed so much,” Justice Breyer
said of the Court's decision. In the Justice's 77-page written opinion he
called the ruling a "radical" step away from established law that
would take from communities a critical tool used for many years in the
prevention of resegregation. (Wikipedia)