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)
Legal Precedents to Brown

Roberts v. City of Boston (1849) 
State v. McCann (1871) 
Ward v Flood (1873) 
Cory v. Carter (1878) 
King v. Gallagher (1883) 
Dred Scott v. Sanford (1857) 
Emancipation Proclamation (1863) 
Thirteenth Amendment (1865) 
Freedmen’s Bureau (1865) 
Civil Rights Act (1866)
Fourteenth Amendment (1866) 
Fifteenth Amendment (1869) 
Civil Rights Act (1875) 
The Slaughterhouse Cases (1873) 
United States v. Reese (1875) 
United States v. Cruikshank (1875) 
Strauder v. West Virginia (1879) 
Virginia v. Rives (1879) 
United States v. Harris (1883) 
Civil Rights Cases of 1883  
Williams v. Mississippi (1898) 
Hall v. DeCuir (1877) 
Plessy v. Fergusen (1896) 
Cumming v. Richmond County Board of Education (1899) 
Berea College v. Kentucky (1908) 
Buchanan v. Warley (1917) 
Moore v. Dempsey (1923) 
Corrigan v. Buckley (1926) 
Gong Lum v. Rice (1927) 
Nixon v. Herndon (1927) 
Grovey v. Townsend (1934) 
Margold Report (1931) 
Murray v. Maryland (1935) 
Missouri ex. rel. Gaines v. Canada (1938) 
Smith v. Allwright (1944) 
Shelley v. Kramer (1948) 
Sipuel v. Oklahoma State Board of Regents (1947) 
Sweatt v. Painter (1950) 
McLaurin v. Oklahoma State Regents for Higher Education (1950) 
Briggs v. Elliott (1950) 
Brown v. Board of Education of Topeka, Kansas (1951) 
Bulah v. Gebhart; Belton v. Gebhart (1952) 
Davis v. County School Board of Prince Edward County (1952) 
Bolling v. Sharpe (1951)  
Brown v. Board of Education of Topeka, Kansas (1952)

  The Post-Brown Saga

Judge Parker’s Ruling in Response to Brown Decision (1955) 
Cooper v. Aaron (1958) 
Griffin v. Prince Edward County (1964) 
Green v. New Kent County (1968) 
Alexander v. Holmes County Board of Education (1969) 
Carter v. West Feliciana Parish School (1969) 
Swann v. Charlotte-Mecklenburg Board of Education (1971) 
Rodriguez v. San Antonio (1973) 
Milliken v. Bradley (1974) 
Morgan v. Hennigan (1974) 
Oklahoma City v. Dowell (1990) 
Pitts v Freeman (1991) 
Missouri v. Jenkins (1995)


- 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 (1776)

- “…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 ratification.
- 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 free man.
- 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 jurisdiction.
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 commander-in-chief
- 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 race.
o Bureau agents set up classes for children staffed, for the most part, by white teachers from the North, many of whom were women.
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 algebra.  


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 freedmen
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 Union:
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 legislation.

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 amusement.”
- 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 school system.)

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 federal government.
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 Democratic Party.

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 authorities.


Presidential Election (1876)

- Republican Hayes vs. Democrat Tilden
- Hayes needs electoral votes of newly reconstituted Southern states to win.
- 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 aid.

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 colored…”

- 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 prospective juror.

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 ordained.” 
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 police powers.

- 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 enforced.”

o Roberts v. City of Boston (1849) Supreme Court of Massachusetts decision. 

§ Defendant’s case argued by abolitionist Charles Sumner
· 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 “uncharitableness.” 

§ 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 political powers.
· 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 exercised”.
· “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 and conditions.”
· “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 all.
· They asserted that a separate education for blacks was equal to that education provided for whites.

o Ward v Flood (1873) (California Supreme Court)

§ 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 Supreme Court

§ 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 segregated schools.
§ 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 state.’
· 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 taken place.


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 race.

- 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 segregation. 
- 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 business itself
o “due process”- not merely the procedure of justice but the substance of state or federal legislation may come under the court’s judgment:  
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 regulate them:

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 property.” 

- 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 itself against?
- 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:

o No case had ever been decided in the Supreme Court in which school segregation was directly upheld.
o Taft cited Roberts v. Boston, Plessy v. Fergusen, and Cumming v. Richmond, but the court had never directly faced the question of how school segregation squared with the 14th Amendment.

- 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 private organization.

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 constitutional.

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 children

- “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 South.
- Nathan Margold’s advice (Harvard Law School, associate of Felix Frankfurter)

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 discriminatory.
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 (1950)

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 Lincoln’s tuition.
- 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 Amendment.
- 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 equal doctrine: 
“Equality, even if the term be limited to comparison of physical facilities, is and can never be achieved… there can be no separate equality.”

- “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 equal doctrine.
- 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 blacks. 
- 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 education?
- 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 of education. 
- 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 man.
- 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 with?" etc.) 
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 their personalities…”
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 interfere.”
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 constitutional right.

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 desegregation.
- 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 schools alone.
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 itself.
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 facilities.

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 district. 
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 (1952)

- 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 segregation.
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 integrated schools.

- 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 schools.

o Marshall (NAACP), seeking to overturn Briggs v. Elliott

§ 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 legislative responsibility.
§ 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 upon them?

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 state.

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 segregation?
§ Did they believe that either the Congress or the federal courts could abolish segregation?
§ 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:

o Davis: 
§ 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”?

 o Marshall:

§ “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 17, 1954)

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 decided
o Dismisses evidence of whether schools had been or are being equalized
o Warren emphasized the psychological impact of segregation on black children:
§ The primary goal of education is to foster cultural values and good citizenship. Could that happen in segregated schools?
§ 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 government objective.
§ Conclusion: Separate educational facilities are inherently unequal and violate the equal protection clause of the 14th Amendment.


- Reactions:

o Southern governors girded for massive resistance to the decision.
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 schools.
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 and morals.
- 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
§ Faculty
§ 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 Rock.
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 commands?
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 boards. 
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 Constitution. 


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 desegregated schools
- Warren Court:
Warren Black
Brennan  Clark
White  Harlan
Stewart  Douglas

- 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 Harlan)


United 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 color-blind.
§ 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:
Warren  Black
Brennan  Harlan
White  Douglas
Stewart  Marshall

- 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 removed.
o Thus ended the “deliberate speed” option: plans had to be formulated “now”.


Alexander v. Holmes County Board of Education (1969)

- 5th Circuit judges delay implementation of desegregation for another year in order to avert “chaos, confusion and catastrophe.”
- Greenberg (NAACP) argues that “segregation forever” has been replaced by “litigation forever”.
- Burger Court:
Burger  Black
White  Brennan 
Stewart  Harlan

- 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

Irons, Chapter 12 “Do Two Wrongs Make A Right”

Swann v. Charlotte-Mecklenburg Board of Education (1971)

- Burger Court:
Burger  Black
White  Harlan
Stewart  Douglas 
Blackmun  Brennan

- Case addresses defacto segregation resulting from “residential school districts”
- 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 de-segregate schools
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 white tolerance)
§ 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 composition.
§ (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

Rodriguez 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 case.
- 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 school funding.
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)

Burger  Douglas
Powell  Brennan
Stewart  Marshall
Blackmun  White
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 citizenship.

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 citizenship.”

- 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 clients.

Irons, Chapter 13 “Two Cities- One White, the Other Black”

Milliken v. Bradley (1974)

- Burger Court
Burger  Douglas
Powell  Brennan
Stewart  Marshall
Blackmun  White

- 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 schools 
§ Building new schools well inside white/black neighborhood boundaries.
§ 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 region.
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 throughout Michigan.
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 even more.
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 regret.” (245)


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 (and vice-versa).
- 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 policy.
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 several years.
- 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 schools.
- Most of the school districts involved now are more segregated than they were when lawsuits were brought to integrate their schools.

Irons, Chapter 14, “Too Swift and Too Soon”

Oklahoma City v. Dowell (1990)

- Rehnquist Court
Rehnquist  White 
O’Connor  Stevens
Scalia  Marshall
Kennedy  Blackmun
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 dual system
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 integration.
- 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 segregation. 
- 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 Brennan opinion)
§ 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)

Rehnquist  White 
O’Connor  Stevens
Scalia  Blackmun

- 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 board.
- 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.” (277)

- 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 policies. 
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.”


Missouri v. Jenkins (1995)

- third case testing continued judicial oversight of school desegregation
- 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 development program.
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 school desegregation.”
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:

Rehnquist  Stevens
Scalia  Ginsburg 
Kennedy  Breyer
O’Connor Souter

- 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 system. 
- 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 drops.
- 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 inferior. 
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.” (285)
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 is.”
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.”