RACIAL SEGREGATION: The legal complexities of desegregation policies within public

schools

LAW 470: Senior Seminar in Law: Fall Semester 2015

MARY WILLIAMS

Professor Upchurch

November 30th, 2015

Word Count: 8, 380

Arriving at her elementary school while escorted by U.S Marshals, the little six-year old

was greeted by large crowds of people yelling incoherently and throwing random objects. There

were barricades and policemen everywhere as she entered the school escaping the chaotic scene

outside. This was the scene at William Frantz elementary school as Ruby Bridges entered the

building. “Born on September 8, 1954, in Tylertown, Mississippi, Ruby Bridges was only six-

years old when she became the first African-American child to integrate a white Southern

elementary school, having to be escorted to class by her mother and U.S. marshals due to violent

mobs.”1 Bridges’ bravery inspired continued action to desegregate public schools.

The racial desegregation of children within public schools in America played a

significant role in displaying the connection between law and society. This paper analyzes the

evolution of school desegregation law and the recent resurgence of racial segregation within

public schools. It also examines the complexities of school desegregation procedures, the issues

of de jure and de facto segregation, and the successes and failures of school desegregation law.

The evolution of the interpretation of the equal protection clause of the Fourteenth Amendment

within school desegregation law is also very significant. Furthermore, the U.S Supreme Court’s

inability to successfully address all causes of school segregation and the consequence of recent

re-segregation in public schools across the country.

In spite of more than a century of activism seeking equal schooling for African American

children, American schools remain substantially segregated and unequal.2 Integration has failed

for many reasons, both legal and social.3 Schools across the country have become more 1 Biography.com. “Ruby Bridges Biography.” Accessed October 20, 2015. A&E Television Networks. http://www.biography.com/people/ruby-bridges-4754262 Nikki L. Cox, “Constitutional Law—School Integration Reform—A call for desegregation policies that are more than skin deep.” University Of Arkansas at Little Rock Law Review 36, no. 1(September 2013): 123-147, 134.

3 Cox, “Constitutional Law,” 134.

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segregated, not because of state action, but because of de facto segregation.4 Due to legal limits

on when a state may combat segregation, wealthier families have the option to avoid integrated

schools simply by moving to the suburbs where dual systems never existed, but low

socioeconomic classes and minorities are not present.5 Consequently, inner-city schools are left

with high concentrations of low-income minority students while the suburbs are home to

wealthier, segregated schools.6 Social influences have contributed to re-segregation as well as

housing patterns have become more segregated. “Since many school districts rely on

neighborhood districts, the outcome is simple: if we live segregated, we learn segregated.”7

The U.S Supreme Court was only specific in its differentiation between de jure and de

facto segregation. De jure segregation refers to segregation by law while de facto segregation

refers to being put in practice but not officially established by the law. “De jure segregation, or

segregation ‘from law’, is the deliberate operation of a school system to carry out a governmental

policy to separate students in schools solely on the basis of race which is unconstitutional under

the equal protection clause of the Fourteenth Amendment.”8 School districts were only instructed

by the U.S Supreme Court to address de jure school segregation and not de facto school

segregation. Brown v. Board of Education of Topeka I (1954) and II (1955) had already

abolished de jure school segregation, thus the main issue surrounding the integration of public

schools was de facto segregation of residential neighborhoods.

4 Ibid.5 Ibid.6 Ibid. 7 Ibid, 136. 8 Jonathan Fischbach and Will Rhee and Robert Cacaee. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools.” Harvard Civil Rights-Civil Liberties Law Review 43, no. 2 (Summer 2008): 491-538, 496.

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De facto segregation, literally meaning segregation from facts, is “where racial imbalance

exists in the schools but with no showing that this was brought about by discriminatory action of

state authorities.”9 Because unintentional or de facto segregation does not violate the

Constitution, a district court cannot require a de facto system to implement a desegregation

plan.10 As a result, unlike a de jure system, a de facto segregated school system is under no

constitutionally-imposed, affirmative duty to remedy racial imbalances.11 The U.S Supreme

Court’s limitation on legal remedies and voluntary desegregation plans for school districts has

resulted in the re-segregation of many American schools.12

Almost all school desegregation plans involve mandatory or voluntary remedial plan.13

School systems addressing the consequences of de jure segregation are subject to mandatory

plans, while school systems seeking to amend the effects of de facto segregation generally

undertake voluntary plans.14 “Due to the high degree of residential segregation present in most

American cities and the common practice of organizing school attendance zones on the basis of

neighborhood schools, de facto school segregation was apparent in most major cities during the

1960s.”15 The major inefficiency of school desegregation policies was that it dealt specifically

with de jure segregation and did not actively address de facto segregation which would cause

future problems with the issue of school integration. The U.S Supreme Court “has been reluctant

to challenge de facto segregation because of the implications of finding a legal harm in racial

9 Jonathan Fischbach and Will Rhee and Robert Cacaee. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools.” Harvard Civil Rights-Civil Liberties Law Review 43, no. 2 (Summer 2008): 491-538, 504.10 Ibid11 Ibid. 12 Cox, “Constitutional Law,” 135.13 Fischbach, “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools,” 496. 14 Ibid. 15Peter William Moran, Race, Law, and the Desegregation of Public Schools (New York: LFB Scholarly Publishing LLC, 2005), 37.

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isolation itself, rather than in the state’s action of segregating students.”16 The inability of the U.S

Supreme Court to remedy the issue of de facto housing segregation and school integration within

public schools has ultimately resulted in re-segregation in several school districts. However,

providing a legal remedy to de facto housing segregation would be difficult due to the fact that

people can choose to live wherever they wish and laws affecting this may be seen as an

encroachment on personal freedom.

The consistent legal issue within school segregation court cases is the equal protection

clause of the Fourteenth Amendment of the Constitution. The equal protection clause implies

that no state has the right to deny anyone within its jurisdiction equal protection of the law. The

issue of school segregation displays the evolution of the interpretation of the equal protection

clause with the “separate but equal” doctrine to the ultimate decision of school segregation

violating the equal protection rights of minority children. The U.S Supreme Court case of Brown

v. Board of Education (1954) was a landmark case because it established the unconstitutionality

of racial segregation in all public schools.17 It also overturned the “separate but equal” doctrine

that had been established in the precedent case of Plessy v. Ferguson (1896).18

The case of Plessy involved Homer Plessy, an African-American man, who was jailed in

Louisiana for sitting in a railroad car that was intended for white people only. At the time of

Plessy’s arrest, Louisiana had the Louisiana Separate Car Act which established separate

facilities for whites and blacks on trains. After his arrest, Plessy then petitioned the Louisiana

Supreme Court for a writ against John Ferguson, the trial court judge, to stop the proceedings

16 Nikki L. Cox, “Constitutional Law—School Integration Reform—A call for desegregation policies that are more than skin deep.” University Of Arkansas at Little Rock Law Review 36, no. 1(September 2013): 123-147, 136.17Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 495.18 Ibid.

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against him for violating the Louisiana State law.19 The Louisiana State Supreme Court affirmed

Judge Ferguson’s ruling that the Louisiana Separate Car Act was in fact constitutional and Plessy

was then convicted and fined for his actions.20 Plessy then petitioned for a writ of error from the

U.S Supreme Court in his case.21

By a 7-1 vote, the U.S Supreme Court stated that the Louisiana Separate Car Act did not

conflict with the equal protection clause of the Fourteenth Amendment.22 Justice Henry Brown

gave the opinion of the Court stating that the Fourteenth Amendment was intended to enforce

equality between races and laws enforcing racial segregation did not conflict with this law as

long as the facilities provided for each race were substantially equal.23 He also stated that the law

did not imply inferiority of one race to another, rather it simply enforced a separate but equal

policy. Therefore the Louisiana Separate Car Act was reasonable and constitutional. The U.S

Supreme Court’s rationale was based on its interpretation of the equal protection clause in the

Constitution enabling separate but equal facilities for Blacks and Whites.

However, Justice John Harlan, gave the only dissent declaring that the Louisiana state

law was very clear in its discrimination against African-Americans. He claimed that although

whites clearly consider themselves the superior race the Constitution itself is color-blind and

requires that all American citizens are treated equally before the law.24 Thus laws that enforced

racial segregation were in violation of the Fourteenth Amendment rights of African-Americans.

The significance of Plessy was that it justified the de jure segregation of whites and blacks based

on the interpretation of the equal protection clause by enforcing a separate but equal doctrine.

19 Plessy v. Ferguson, 163 U.S. 537 (1896), 539.20 Ibid.21 Ibid.22 Plessy v. Ferguson, 163 U.S. 537 (1896), 550.23 Plessy v. Ferguson, 163 U.S. 537 (1896), 551.24 Plessy v. Ferguson, 163 U.S. 537 (1896), 553.

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The U.S Supreme Court explained that states that enact legislation implementing racial

segregation in public facilities are constitutionally acceptable as long as the facilities are

substantially equal. The importance between the cases of Plessy and Brown was the difference in

the interpretation of the equal protection clause by the Court.

Although the U.S Supreme Court’s rationale was significantly different in both cases, the

similarity was the interpretation of the equal protection clause within racial segregation law. In

Brown v. Board of Education (1954), the Supreme Court evaluated the constitutionality of the

established “separate but equal” doctrine within the public school system. The main issue that

was presented to the Supreme Court was if segregation based on race within public schools in

America was a violation of the equal protection clause of the Fourteenth Amendment of the

Constitution.

The case of Brown v. Board of Education was actually a combination of five separate

cases heard by the U.S Supreme Court on the issue of segregation in public schools. The

plaintiffs were in the different states of Kansas, South Carolina, Virginia, Delaware and also

Washington D.C. and had brought suits against their school districts claiming that segregation

was racially discriminatory against African-American children.25 In these separate cases, the

district courts upheld the constitutionality of racially segregated public schools and ruled in favor

of the school boards, citing the “separate but equal doctrine” of Plessy v. Ferguson as a

reasonable rationale.26 All five cases were thus appealed to the U.S Supreme Court which

authored the opinion on the all-inclusive case of Brown v. Board of Education. Chief Justice Earl

Warren gave the unanimous opinion of the court and stated that separate educational facilities for

25 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 488.

26 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 488.

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Black and White children denied Black children equal protection guaranteed under the

Fourteenth Amendment of the constitution as African-American schools were significantly less

equipped than those of White children.27

The U.S Supreme Court’s rationale in Brown deeming school segregation

unconstitutional was based on several facts. The court’s reasoning was based on the harmful

effects of racial segregation on African-American children and if their educational facilities were

actually equal to that of White children.28 The Supreme Court stated that segregation in public

education violated the Equal Protection Clause of the Fourteenth Amendment based on the fact

that African-American schools were not equipped with the same services as White schools and

were significantly less efficient. The court felt that the unequal educational facilities provided for

African-American children was a clear violation of the rights of African-American children

guaranteed by the equal protection clause of the Fourteenth Amendment.29

The U.S Supreme Court’s 1954 Brown v. Board of Education decision foreshadowed

subsequent legislation to provide all students with equal educational opportunities.30 The Court’s

finding that segregated schooling was “inherently unequal” implied that an effort must be

undertaken to provide equal educational opportunity to all children.31 Only a year after Brown I,

the Supreme Court would have Brown II which stated that all schools that had previously

enforced de jure segregation must integrate their schools with all deliberate speed.32

27 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 495.

28 Ibid.29 Ibid.30 Peter William Moran, Race, Law, and the Desegregation of Public Schools (New York: LFB Scholarly Publishing LLC, 2005), 117.

31 Peter William Moran, Race, Law, and the Desegregation of Public Schools (New York: LFB Scholarly Publishing LLC, 2005), 117.32 Brown v. Board of Education of Topeka, 349 U.S. 294 (1955)

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The Brown decision overturned more than fifty years of Court precedent and set in

motion one of the most controversial judicial interventions into local government affairs in

American history.33 Although school desegregation policies initially applied to the South which

had de jure school segregation, “within fifteen years the controversy became nationwide as

school desegregation law was applied to cities in the North that had no history of state laws that

required segregated or ‘dual’ school systems.”34

Author Nikki Cox states that the U.S Supreme Court first gave instructions about

desegregation policies and the roles that states would take in desegregating their public schools

within the case of Brown v. Board of Education (1954).35 The Court ordered three requirements

for states within its school desegregation policies: “First, a state is required to remedy only

segregation caused by state action. Second, the remedy is limited to the district where the

violation occurred. Finally, when a state uses a race-based remedy to combat segregation, the

remedy must survive a strict scrutiny analysis.”36 If the history of de jure segregation of schools

is the most important fact in understanding interracial contact in American schools, the second

most important fact is residential segregation.37 American neighborhoods still are and have

always been heavily racially segregated. As a response to the abolishment of de jure school

segregation, many white families simply avoided newly integrated schools by fleeing certain

neighborhoods and moving into other districts where they could enroll their children into

segregated schools. This trend of white families avoiding desegregated schools resulted in a shift

in demographics between public and private schools. 33 Armor, Forced Justice: School Desegregation and the Law, 19.34Ibid.35 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)36 Cox, “Constitutional Law,” 126.

37 Charles T. Clotfelter. After “Brown”: The Rise and Retreat of School Desegregation (New Jersey: Princeton University Press, 2011), 78.

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For instance, in the last thirty years, public school enrollment of white students has

declined from seventy-three percent in 1980-81 to almost fifty-four percent in 2009-10.38 As a

result, the growing number of students of color has coincided with deepening racial and

economic segregation for black and Latino students.39 On the other hand, the growing number of

students of color has lessened the extent to which white students attend racially isolated white

schools. In 1988, at the height of school desegregation, more than half of white students—fifty

three percent—attended predominantly white schools.40 From 2006 to 2007, the percentage of

white students in such racially isolated white schools declined to thirty-six percent.41

Author Erica Frankenberg explains that these recent school demographic statistics

illustrate the actions of “white enclaves” that employ creative strategies to maintain school

segregation.42 “White enclaves are schools—or neighborhoods—in which the enrollment of

white, affluent students is higher and disproportionate to the enrollment of white students in an

entire school district or community.”43 Some white enclaves have fought to maintain or worsen

racial division.44

For instance, author Jeff Guo explains the phenomenon of white parents in North

Carolina using charter schools to avoid the racial integration within public schools. He states that

professors at Duke have traced a troubling trend of re-segregation since the first charters opened

in 1997. They contend that North Carolina’s charter schools have become a way for white 38 Erica Frankenberg and Preston C. Green and Steven Nelson, “Fighting Demographic Destiny: A Legal Analysis of Attempts of the Strategies White Enclaves might use to maintain school segregation.” George Mason University Civil Rights Law Journal 24, no. 1 (Fall 2013): 39-60, 39. 39 Ibid.40 Ibid.41 Ibid.42 Ibid, 40.43 Erica Frankenberg, “Fighting Demographic Destiny: A Legal Analysis of Attempts of the Strategies White Enclaves might use to maintain school segregation,” 40. 44 Ibid.

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parents to secede from the public school system, as they once did to escape racial integration

orders.45 “They appear pretty clearly to be a way for white students to get out of more racially

integrated schools,” said economics professor Helen Ladd, one of the authors of the draft

report.46 The main issue with charter schools are the preferences of the parents.

In previous research, Ladd discovered that white North Carolina parents prefer schools

that are less than 20 percent black, which makes it hard to have racially balanced charter schools

in a state where more than a quarter of schoolchildren are black.47 Guo concludes that “As

America’s neighborhoods become increasingly segregated, it will take conscious effort to

prevent public schools from also becoming more segregated, whether by race or by class.”48 In

the South, there were once private “segregation schools” for white students to avoid integrated

schools and without a clear plan for establishing integrated public schools, North Carolina’s

charter schools are at risk of resurrecting that legacy.49 Similarly, author Valerie Strauss states

that about “Fifteen percent of black students and 14 percent of Latino students attend ‘apartheid

schools’ across the nation in which whites make up zero to 1 percent of the enrollment, the

researchers found.”50 The studies found that in 1970, nearly four out of every five public school

students across the nation were white, but by 2009, just over half were white — and in the South

and West, students of color now constitute a majority of public school enrollment.51

45 Jeff Guo, “White parents in North Carolina are using charter schools to secede from the education system.” The Washington Post, April 15. Accessed October 20, 2015. https://www.washingtonpost.com/.46 Ibid.47 Ibid.48 Ibid.49 Ibid.50 Valerie Strauss, “School segregation sharply increasing, studies show.” The Washington Post, September 22, 2012. Accessed October 20, 2015. https://www.washingtonpost.com/.51 Ibid.

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The reason this demographic statistical data is significant is because segregation in public

schools has been linked to a number of problems that affect the achievement of minorities.52

Schools with a large majority of students who live in poverty have higher dropout rates, fewer

experienced teachers and far less resources than schools with majorities of middle- and upper-

class students.53 The studies note that expert teachers and advanced courses more common in

predominantly white and/or wealthy schools help create educational advantages over minority

segregated settings.54

De facto housing segregation is a major component of this demographic inconsistency

and re-segregation within public schools across numerous school districts. “Residential

segregation, whether imposed or ‘voluntary,’ is an important component of the ‘discrimination

system,’ which also includes racial and ethnic disparities in the labor market and public schools,

and which interacts with racial/ethnic prejudice to reinforce and amplify the negative effects of

each component.”55 Thus, income disparities and voluntary segregation are the most common

explanations for residential segregation.56

In spite of growing debates and controversy over school desegregation remedies, the U.S

Supreme Court has had surprisingly little to say about specific remedy issues between 1955 and

1968, particularly regarding student assignment to schools.57 Most Supreme Court decisions

52 Ibid.53 Ibid.54 Valerie Strauss, “School segregation sharply increasing, studies show.” 55 Nancy A. Denton, “Forum: In Pursuit of a Dream Deferred: Linking Housing and Education: The Persistence of Segregation: Links Between Residential Segregation and School Segregation.” 80, Minnesota Law Review 795 (April 1996).56 Ibid.57 David J. Armor, Forced Justice: School Desegregation and the Law (New York: Oxford University Press, 1995), 26.

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during this period dealt with speeding up the process, perhaps implying but not explicitly stating

how to do so.58

The U.S Supreme Court case of Green v. County School Board of New Kent County

(1968)59 involved the Court evaluating the proposal of a school board’s freedom of choice

desegregation plan within its small school district in Virginia. New Kent County had only two

elementary schools and two high schools, one for whites and one for blacks along with

segregated busing for each school. New Kent County had adopted a “freedom of choice” or

voluntary plan to integrate its schools to comply with the desegregation policies mandated in

Brown II, but the plan was not efficient because most students still chose to go to their

segregated schools.60 Calvin Green had brought suit against New Kent County claiming that their

desegregation plan was insufficient.

The Supreme Court acknowledged the inefficiency of the “freedom of choice” plan

stating that “during the plan’s three years of operation, no white student had chosen to attend the

all-Negro school, and although 115 Negro pupils enrolled in the formerly all-white school, 85%

of the Negro students in the system still attended the all-Negro school.”61 The Court stated that

the New Kent “freedom of choice” plan was not acceptable because it had not dismantled the

dual system, but only operated simply to burden students and their parents with a responsibility

which Brown II placed mainly on the School Board.62

For ten years after Brown, no changes had been made in New Kent County’s dual school

assignment policy, in part because of a Virginia pupil placement law, adopted after Brown that

58 Ibid.59 Green v. County School Board of New Kent County, 391 U.S. 430 (1968).60 Ibid.61 Green v. County School Board of New Kent County, 391 U.S. 430 (1968)62 Green v. County School Board of New Kent County, 391 U.S. 430 (1968), 441-442.

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required students to petition state board to change schools.63 Green was the first decision of the

U.S Supreme Court that declared an affirmative duty to desegregate, and more important, that

defined desegregation not as ending compulsory separation but rather as the abolition of white

and black schools.64

The Court explained that desegregation plans from now on would be judged on their

effectiveness to remove de jure segregation of white and Negro schools. The Green decision also

established the “Green factors” which would be used to assess if a school district had

successfully desegregated its schools. In order for a school to achieve unitary or non-segregated

status, the school would have to include factors such as “hiring and assignment of faculty and

staff assignment, equity of facilities, and nondiscrimination in transportation and extracurricular

activities.”65

In the cases of Green v. County School Board of New Kent County (1968) and Swann v.

Charlotte-Mecklenburg Board of Education (1971), the U.S Supreme Court adopted a broader,

corrective agenda in order to remedy school segregation. The Court required previously

segregated school districts to completely rid themselves of racially discriminatory practices and

to also remedy any consequences of de jure segregation. The Court was adamant that the

ultimate goal of school districts was to get rid of de jure segregation and “to effectuate a

transition to a racially nondiscriminatory school system” as indicated in Brown II.66 In Green, the

Court emphasized that the transition to a unitary, nonracial system of public education was a

63 Armor, Forced Justice: School Desegregation and the Law, 28.

64 Ibid.65 Ibid, 29.66 Green v. County School Board of New Kent County, 391 U.S. 430 (1968), 435.

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very complex requirement which is why the assertion of “all deliberate speed” was implemented

in Brown I.67

By striking down New Kent County's “freedom of choice” plan for racial diversity

because it failed to actively desegregate its schools, the Court demonstrated the significance of

rapid and effective desegregation plans for formerly segregated public schools. The Court’s

rationale was based on the assertion that the duty to desegregate fell on school officials and New

Kent County had noticeably failed and had placed the burden on parents and students instead.

In Swann v. Charlotte-Mecklenburg Board of Education (1971), the U.S Supreme Court

established the significance of mandatory busing to help integrate public schools. This was the

first U.S Supreme Court case dealing with the school busing system. The Charlotte-Mecklenburg

school system, in the city of Charlotte, North Carolina, still had about 29% of its student

population which were Negros attending majority Negro schools.68 Desegregation had not been

actively enforced and in 1968, petitioner Swann brought suit citing the decision of Green v.

County School Board of New Kent County (1968) as evidence of the ineffective desegregation

plan of the Charlotte-Mecklenburg system.69

The U.S Supreme Court cited four important issues with the student assignment plan of

Charlotte-Mecklenburg school system. The Court stated that racial quotas, one-race schools,

attendance zones, and transportation were significant factors that needed to be addressed within a

school district’s de jure desegregation plan. On the issue of racial quotas, the Court stated that

the racial composition of the school did not necessarily have to reflect the racial composition of

the school district’s neighborhoods so the “District Court’s very limited use of the racial ratio—

67 Green v. County School Board of New Kent County, 391 U.S. 430 (1968), 436.68 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

69 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

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not as an inflexible requirement, but as a starting point in shaping a remedy—was within its

equitable discretion.”70 One-race schools were deemed as acceptable if they were in the minority

within the school district but the Supreme Court stated that the district court should still

scrutinize such schools and require the school authorities to satisfy the requirement that the racial

composition of such schools did not result from present or past discriminatory action on their

part.71

The Court emphasized that an optional majority-to-minority transfer provision had long

been recognized as a useful part of a desegregation plan, and to be effective such arrangement

must provide the transferring student free transportation and available space in the school to

which the student desired to move.72 Thus the provision for mandatory busing of students as an

effective plan to integrate the schools was ordered by the Supreme Court.

Swann was also significant because the U.S Supreme Court acknowledged the link

between housing segregation and school segregation. The Court acknowledged that the alteration

of attendance zones as a temporary corrective measure was beyond the remedial powers of a

district court. Furthermore, A student assignment plan was not acceptable merely because it

appeared to be neutral because such a plan may fail to counteract the continuing effects of past

school segregation. The Court stated that although the pairing and grouping of noncontiguous

zones was a permissible tool, judicial steps going beyond neighboring zones had to be examined

in order to clarify the objectives of the plan.73

70 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 22-25.71 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 25-26.

72 Ibid, 26-27.73 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 27-29.

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The Court acknowledged that apart from a constitutional violation, there would be no

basis for judicially ordering assignment of students on a racial basis. The remedy to also address

de facto housing segregation would be an area that would be difficult for lower district courts to

actively and successfully enforce. The Court clarified that there can be no fixed guidelines

established as to how far a court can go, but it must be recognized that there are limits. 74 The

main objective was dismantle the dual school system created by de jure segregation. On the issue

of transportation, the Court stated that the remedial technique of requiring bus transportation as a

tool of school desegregation was within that district court’s power to provide equitable relief.75

The Court further stated that at some point due to the mandatory busing of students to various

schools throughout the school district, the schools would have fully complied with the rulings of

Brown I and the systems would be “unitary” such as in the requirements provided in Green.76

The Court acknowledged the future problems that de facto housing segregation would

have for school integration but stated that “neither school authorities nor district courts are

constitutionally required to make year-by-year adjustments of the racial composition of student

bodies once the affirmative duty to desegregate has been accomplished and racial discrimination

through official action is eliminated from the system.”77 If the school districts demonstrated that

they did not deliberately attempt to fix or alter demographic patterns to affect the racial

composition of the schools, further intervention by a district court was not necessary.78

The implications of the mandatory desegregation requirements of Swann were very

extensive and rigorous for several school districts. For larger school districts, Swann ushered in

74 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 28.75 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 29-31.76 Ibid, 31.

77 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 32.78 Ibid.

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an era of extensive cross-district busing to attain racial balance in virtually every school within a

school district.79 Swann was the only case that offered detailed remedial guidelines by the

Supreme Court, and it clearly approved numerical quotas and cross-district busing to attain racial

balance in all or nearly all schools.80

An additional significant underlying issue of the Swann decisions was that it specifically

targeted de jure segregation within the South but did not also address de facto housing

segregation in the North which also affected the racial balance of schools. Nearly all larger

school districts, both in the North and South, were in areas with very segregated housing. If

racial balance and mandatory busing were required for southern de jure segregation but not for

northern de facto segregation, then complete school integration would exist only in the South.81

This was not a reasonable outcome or result for desegregation policies if it only applied to one

region within the country since it was a nationwide issue.

In order to successfully address all factors influencing school segregation, the U.S

Supreme Court would have to establish a more uniform desegregation policy nationwide. In

order to resolve this issue, the U.S Supreme Court would have to establish a uniform

desegregation policy that encompassed both de jure and de facto school segregation within the

North and South. The court was able to do so within two years but at the sake of consensus

within the Court. Swann was the last unanimous decision of the Supreme Court on the difficult

problem of school desegregation.82

79 Armor, Forced Justice: School Desegregation and the Law, 31.

80 Armor, Forced Justice: School Desegregation and the Law, 56.

81Ibid, 34.82 Armor, Forced Justice: School Desegregation and the Law, 34.

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After Swann, the U.S Supreme Court could have established a more uniform policy on

school segregation plans between the North and the South in several ways. One would have been

to abandon the Swann racial balance remedies because they exceed the scope of most school

violations; in most school systems, some degree of school segregation is caused by housing

segregation.83 Another approach, advocated by many civil rights groups and social scientists, was

to declare all school segregation from all causes— de facto or de jure— unconstitutional.84

A third approach, which the Supreme Court eventually chose, was to broaden the legal

standards for de jure violations, thereby making it easier for a court to identify a dual school

system.85 The case of Keyes v. School District. No.1 (1973) was a U.S Supreme Court case that

addressed school segregation in school districts due to de facto housing segregation. The Keyes

case, which took place in Denver, Colorado involved petitioners bringing suit to desegregate

Park Hill area schools in Denver and, upon securing an order of the District Court directing that

relief, expanding their suit to secure desegregation of the remaining schools of the Denver school

district, mainly those in the core city area.86

The District Court denied this further relief stating that the deliberate racial segregation

of the Park Hill schools did not prove a similar segregation policy addressed specifically to the

core city schools and required petitioners to prove de jure segregation for each area that they

sought to have desegregated.87 The district court found that the segregated core city schools were

educationally inferior to “white” schools elsewhere in the district and, relying on Plessy v.

83 Ibid.

84 Ibid.85 Ibid.86 Keyes v. School District. No.1, 413 U.S. 189 (1973).

87 Ibid.

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Ferguson (1896), ordered the respondents to provide substantially equal facilities for those

schools as they were in violation of the equal protection clause of the Fourteenth Amendment.88

“This latter relief was reversed by the Court of Appeals, which affirmed the Park Hill

ruling and agreed that Park Hill segregation, even though deliberate, proved nothing regarding an

overall policy of segregation.”89 Justice Brennan delivered the opinion of the Supreme Court

stating that deliberate action had been taken through attendance zoning that subjectively placed

Black and Hispanic students in substantially inferior schools to that of White students which

proved that there was an established racially segregated system.90 The Court essentially

established the rule that school districts could be held liable for school segregation caused by de

facto housing segregation unless they could prove otherwise.

This was contrary to the previous case of Swann v. Charlotte-Mecklenburg Board of

Education (1971) where the U.S Supreme Court had implemented school desegregation

guidelines that only addressed state-mandated or de jure school segregation. While the Keyes

decision left the de facto—de jure distinction alive in theory, it had much less practical

significance because few school districts at that time could meet the burden of proving that they

had not contributed to housing segregation or had not intentionally adopted a neighborhood

school policy.91

Another implication of Keyes is the belief that lower level courts and school districts can

have the ability to create social change in addressing de facto housing segregation which

includes both social and legal issues. “Unlike the major U.S Supreme Court school decisions

88 Ibid.89 Ibid.90 Keyes v. School District. No.1, 413 U.S. 189 (1973), 198.91 David J. Armor, Forced Justice: School Desegregation and the Law (New York: Oxford University Press, 1995), 37.

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from Brown to Swann, which were decided by a unanimous Court, the Keyes decision marked

the beginning of a divided Court on the critical issue of de facto—de jure distinction and the

requirements of desegregation remedies.”92

One of the most frustrating problems throughout the history of the school desegregation

movement was how former dual school systems would obtain unitary status and then be released

from judicial supervision, and what obligations remained on school districts once this status was

achieved.93 Unitary status was declared once a school district had eliminated all instances of

racial discrimination within its schools. After complying with a desegregation ruling and

eliminating the remnants of unconstitutional segregation “to the extent practicable,” a school

district could then be declared unitary and relieved of court supervision.94 “At this point a school

district can modify or even abandon a previous court-approved desegregation plan; it can also

revive neighborhood schools that are racially imbalanced, providing the change is not made with

a discriminatory purpose.”95

Towards the late 1980s and early 1990s, several school districts appealed to the U.S

Supreme Court stating that they should be eliminated from further supervision from the Court

regarding their school desegregation plans. The case of Board of Education of Oklahoma City

Public Schools v. Dowell (1991) involved such an issue with a school district that had previously

been declared of achieving unitary status and then adopted a student reassignment plan that

would essentially reinstate one-race schools.96 In 1972, after finding that previous efforts had not

92 Armor, Forced Justice: School Desegregation and the Law, 37.93 Ibid, 48.94 Ibid, 57.95 Armor, Forced Justice: School Desegregation and the Law, 57.96 Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991).

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been successful at eliminating de jure segregation, the District Court entered a decree imposing a

school desegregation plan on petitioner Board of Education.97

The school district then achieved unitary status in 1977 and in 1984 had adopted a

Student Reassignment Plan (SRP) under which a number of previously desegregated schools

would return to primarily one-race status for the asserted purpose of lessening greater busing

burdens on young black children caused by demographic changes.98 The District Court thereafter

denied respondents’ motion to reopen the terminated case, stating that its 1977 unitariness

finding was res judicata.99 The Court of Appeals reversed, holding that respondents could

challenge the SRP because the school district was still subject to the desegregation decree and

nothing in the 1977 order indicated that the 1972 injunction itself was terminated.100

On remand, the District Court dissolved the injunction, finding that the School Board had

complied in good faith for more than a decade with the court’s orders, and that the SRP was not

designed with discriminatory intent and the Court of Appeals once again reversed the decision.101

The U.S Supreme Court reversed the judgment of the Court of Appeals and stated that once a

school had reached unitary status, it was acceptable for it to implement new standards such as the

SRP and these standards should be evaluated by the District Court based on the requirements in

the equal protection clause.102

The significance of Dowell was that it showed a change of direction within the U.S

Supreme Court on the issue of school desegregation. As the years passed, the U.S Supreme Court

97 Ibid.98 Ibid.99 Ibid.100 Ibid, 246-251.101 Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), 246-251.102 Ibid, 250.

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justices changed and this led to new perspectives and objectives about the issue of school

desegregation policies. Gone were the justices who had been the long-time defenders of school

integration such as Chief Justice Earl Warren.103

In the place of older U.S Supreme Court justices were a younger generation of more

pragmatic jurists such as Chief Justice John Roberts and Chief Justice Anthony Kennedy, a

majority of whom tended to be inclined toward bringing a close to four decades of judicial

oversight and experimentation with social engineering in the country’s public schools.104 “By

emphasizing that desegregation was intended only as a temporary measure to remedy past

discrimination, the U.S Supreme Court indicated its objective of restoring local authorities back

in the control of school systems.”105

By the second half of the first decade of the twenty-first century, the U.S Supreme Court

had moved from deciding whether schools would be forced to redistribute their students to

whether they would be allowed to do so.106 At the end of 2006, the U.S Supreme Court began to

hear the case of Parents Involved in Community Schools v. Seattle School District (2007). In this

case, a school district in Seattle, Washington had voluntarily adopted student assignment plans

that were reliant on race in order to determine which schools certain children would attend. 107

This school district had never been under de jure segregation but had classified children as white

103 Peter William Moran, Race, Law, and the Desegregation of Public Schools (New York: LFB Scholarly Publishing LLC, 2005), 293.

104 Ibid.

105 Peter William Moran, Race, Law, and the Desegregation of Public Schools, 293.

106 Stephen J. Caldas and Carl L. Bankston III, “A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved In Community Schools v. Seattle School District No. 1.” Brigham Young University Education and Law Journal. 217 (2007).107 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

22

or nonwhite, and used the racial classifications as a “tiebreaker” to allocate slots in particular

high schools.108

The Jefferson County school district was subject to a desegregation decree until 2000,

when the District Court dissolved the decree after finding that the district had achieved unitary

status.109 In 2001, the district adopted its plan classifying students as black or “other” in order to

make certain elementary school assignments and to rule on transfer requests. Petitioners, an

organization of Seattle parents (Parents Involved) and the mother of a Jefferson County student

whose children were being assigned under the foregoing plans, filed these suits claiming that

assigning children to different public schools based solely on their race violated the equal

protection clause of the Fourteenth Amendment.110

In the Seattle case, the District Court granted the school district summary judgment,

finding that its plan survived strict scrutiny on the federal constitutional claim because it was

narrowly tailored to serve a compelling government interest and the Ninth Circuit affirmed.111 In

the Jefferson County case, the District Court found that the school district had asserted a

compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant

respects, narrowly tailored to serve that interest and the Sixth Circuit affirmed.112

“In a split 5-4 decision, the U.S Supreme Court struck down race-based student

assignment policies voluntarily undertaken by the Seattle and Louisville school systems to

108 Ibid.109 Ibid.

110 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).111 Ibid.112 Ibid.

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distribute minority and white students more evenly among their schools.”113 Reactions from the

U.S Supreme Court's decision rippled through public school systems across the nation, a

significant number of which had implemented, or were contemplating, school choice programs

that accounted for race in assigning students, faculty, and other resources among school

systems.114

The main issue presented by the Parents Involved in Community Schools decision was, to

what extent could race be used as part of a school’s integration and diversity plan without

violating the equal protection clause.115 The impact of the court’s decision was the shock it had

“among school systems compelled to administer race-based policies due to the mandatory

desegregation decrees established after Brown I.”116 Even some specialists and experts within the

campaign to rid de jure segregation from public school systems, have indicated that “there is an

emerging consensus that the desegregation orders still in effect have outlived the willingness of

courts to enforce them.”117 The courts have simply disregarded the importance of maintaining

racial equality and desegregation in public schools.

Although the distinction between de facto and de jure segregation is principled in theory,

it is still unclear and vague when put in practice.118 The inconsistent interpretations of the Equal

Protection Clause that comes from the Parents Involved in Community Schools decision creates

113 Jonathan Fischbach and Will Rhee and Robert Cacaee. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools.” Harvard Civil Rights-Civil Liberties Law Review 43, no. 2 (Summer 2008): 491-538, 491.114 Ibid, 492.115 Ibid.116 Jonathan Fischbach and Will Rhee and Robert Cacaee. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools.” Harvard Civil Rights-Civil Liberties Law Review 43, no. 2 (Summer 2008): 491-538, 492.

117 Ibid, 493.

118 Ibid, 494.

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what is referred to as a constitutional pivot point.119 “The pivot point is when school systems

constitutionally required to use race-based policies to remedy de jure segregation become

constitutionally prohibited from using the same race-based policies to voluntarily address de

facto segregation.”120 The split decision of the Court on the question of whether racial

redistribution of students would even be allowed, much less compelled, indicated that American

desegregation law had moved from commitment to uncertainty.121

Consequently, there is no simple explanation for the trend of re-segregation in public

schools. There are numerous factors that influence the public school system and the continuous

legal issues with school segregation such as judicial failure, de facto housing segregation, and the

use of private schools as extensions of racial segregation. Author Erwin Chemerinsky argues that

part of the failure of desegregation and the occurrences of re-segregation is due to the actions of

the U.S Supreme Court. She explains that “if the U.S Supreme Court had decided key cases

differently, the system of public education today would be very different and desegregation

likely would have been more successful, and re-segregation less likely to occur.”122 Part of the

problem also is to determine how best to deal with school segregation for which the government

is partially responsible, on account of its actions in the past, when it is not currently operating a

deliberately segregated school system.123

119 Ibid.120 Ibid, 495. 121 Stephen J. Caldas and Carl L. Bankston III, “A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved In Community Schools v. Seattle School District No. 1.” Brigham Young University Education and Law Journal. 217 (2007).

122 Erwin Chemerinsky, “What Role Should Courts Play in influencing educational policy? The Segregation and Re-segregation of American Public Education: The Courts’ Role.” 81, North Carolina Law Review 1597 (May 2003).

123 Michael L. Wells, “Race-Conscious Student Assignment Plans After Parents Involved: Bringing State Action Principles to Bear on the De Jure/De Facto Distinction.” Penn State Law Review 112, no. 4 (January 2008): 1023-1056, 1055.

25

Although judicial failure is a crucial element of the re-segregation of public schools,

other factors such as de facto housing segregation and its effect on schools’ racial diversity, has

resulted in numerous occurrences of re-segregation within public schools across America. Since

school segregation is strongly linked to residential segregation, promoting school integration is

difficult without first addressing residential segregation. This may indicate a need for broad and

comprehensive urban and educational policies to tackle the problem of school segregation.124

Furthermore, school and residential segregation patterns differ across racial/ethnic

populations, so specific policies aimed at reducing segregation may improve matters for one

racial/ethnic group but may prove ineffective, or counterproductive, for another group.125 Author

Paul M. Ong proposes three crucial and possible solutions to fixing residential segregation. The

first is to use housing assistance programs to increase opportunities for low-income families to

move from the inner city to the suburbs.126 The second is to promote inclusionary zoning so that

suburbs provide their fair share of affordable housing.127 Finally, there needs to be stronger

enforcement of antidiscrimination housing laws, because recent studies by The Housing

Discrimination Project (sponsored by the U.S. Department of Housing and Urban Development)

indicate that housing discrimination is still persistent in the rental and sales markets for African

Americans, Asian Pacific Islanders, and Hispanics.128

Nearly sixty years after the historic ruling in Brown v. Board of Education (1954), school

segregation unfortunately remains a significant problem within American public schools and due

to legal and social complexities, there is no easy way to successfully address this continual issue.

124 Paul M. Ong and Jordan Rickles, “The Continued Nexus between School and Residential Segregation.” Berkeley Women's Law Journal 19, no. 2 (October 2004): 260-275, 272. 125 Ibid.126 Ibid.127 Ibid, 273. 128 Ibid, 273.

26

“Racial inequality is produced by multiple forces and institutions that are intertwined in complex

and profound ways and likewise, redressing the re-segregation of schools may well require a

more comprehensive approach that extends beyond the education arena; incorporating housing

policies into the school segregation debate is certainly a step in the right direction.”129

BIBLIOGRAPHY

CASES

Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991)

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Green v. County School Board of New Kent County, 391 U.S. 430 (1968)

Keyes v. School District. No.1, 413 U.S. 189 (1973)

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)

Armor, David J. Forced Justice: School Desegregation and the Law. New York: Oxford University Press, 1995.

Biography.com. “Ruby Bridges Biography.” Accessed October 20, 2015. A&E Television Networks. http://www.biography.com/people/ruby-bridges-475426

129 Ibid.

27

Caldas, Stephen J. and Carl L. Bankston III. “A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved In Community Schools v. Seattle School District No. 1.” Brigham Young University Education and Law Journal. 217 (2007).

Chemerinsky, Erwin. “What Role Should Courts Play in influencing educational policy? The Segregation and Re-segregation of American Public Education: The Courts’ Role.” 81, North Carolina Law Review 1597 (May 2003).

Clotfelter, Charles T. After “Brown”: The Rise and Retreat of School Desegregation. New Jersey: Princeton University Press, 2011.

Cox, Nikki L. “Constitutional Law—School Integration Reform—A call for desegregation policies that are more than skin deep.” University Of Arkansas at Little Rock Law Review 36, no. 1(September 2013): 123-147.

Denton, Nancy A. “Forum: In Pursuit of a Dream Deferred: Linking Housing and Education: The Persistence of Segregation: Links Between Residential Segregation and School Segregation.” 80, Minnesota Law Review 795 (April 1996).

Fischbach, Jonathan and Will Rhee and Robert Cacaee. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation after Parents Involved in Community Schools.” Harvard Civil Rights-Civil Liberties Law Review 43, no. 2 (Summer 2008): 491-538.

Frankenberg, Erica and Preston C. Green and Steven Nelson. “Fighting Demographic Destiny: A Legal Analysis of Attempts of the Strategies White Enclaves might use to maintain school segregation.” George Mason University Civil Rights Law Journal 24, no. 1 (Fall 2013): 39-60. 

Guo, Jeff. “White parents in North Carolina are using charter schools to secede from the education system.” The Washington Post, April 15. Accessed October 20, 2015. https://www.washingtonpost.com/.

Moran, Peter William. Race, Law, and the Desegregation of Public Schools. New York: LFB Scholarly Publishing LLC, 2005.

Ong, Paul M., and Jordan Rickles. “The Continued Nexus between School and Residential Segregation.” Berkeley Women's Law Journal 19, no. 2 (October 2004): 260-275.

Strauss, Valerie. “School segregation sharply increasing, studies show.” The Washington Post, September 22, 2012. Accessed October 20, 2015. https://www.washingtonpost.com/.

28

Wells, Michael L. “Race-Conscious Student Assignment Plans After Parents Involved: Bringing State Action Principles to Bear on the De Jure/De Facto Distinction.” Penn State Law Review 112, no. 4 (January 2008): 1023-1056.

29