When the Supreme Court decided Brown v. Board of Education in 1954, it set off a wave of education reform that has continued to ripple in law and policy through the beginning of the twenty-first century. Although the justices of the Supreme Court did not expect desegregation litigation to continue indefinitely, the Court decided a major desegregation case as late as 2007. The desegregation movement has also continued to resonate by providing the conceptual and political foundations for most major, large-scale education law and policy reform efforts that have swept through the United States since Brown. Reforms ranging from school finance litigation to legislation focusing on testing and charter schools share roots in the principles of educational equality articulated in Brown and the Supreme Court opinions that followed it.

The principles of equality contained in Brown have also resonated through areas of U.S. law and policy besides education. In the years following Brown, reformers pioneered the area of public law litigation. Instead of simply adjudicating private disputes through a structured, adversarial process, courts became involved in a new kind of case that involves multiple parties and aims at reforming the diffuse institutional structures of government.¹ This sort of litigation surfaced in a range of cases, including those focused on voting rights, prisoners’ rights, and employees’ rights. Given the civil rights approach taken by the Supreme Court in Brown, the case has also assumed a hallowed place in our collective ideas about U.S. government and even society and is widely considered one of the most important cases decided by the Supreme Court in U.S. history. Brown has often been used as a “litmus test” for theories of constitutional interpretation and the suitability of lawyers to be appointed federal judges – if one’s theory of interpretation cannot justify and explain Brown, that theory is arguably invalid.² As such, Brown has provided an enduring anchor for debates about the role of law and policy in shaping fundamental issues of equality in American society in a range of social areas, including employment, health, and marriage.³

Despite the iconic status that Brown has assumed, the early years of desegregation were marked by both major successes and glaring problems. When the Supreme Court ruled in Brown that racial segregation in public schools is unconstitutional, the Court essentially framed governmental institutions (and courts in particular) as a legitimate driving force for educational equality. As interpreted by the Supreme Court, equality was to be understood not simply in relation to the rights of particular groups of students, but also in relation to the purposes of education and the governmental structures needed to achieve these purposes. Still, the Court left the concept of equality and how to achieve it largely undefined, and it continued to do so with its decision in Brown II a year later, which required desegregation to proceed with the ambiguous and arguably paradoxical tempo of “all deliberate speed.” After a decade in which very little desegregation actually occurred and courts rarely exercised their authority, the courts took a much firmer and more precise hand in overseeing desegregation efforts, just as the federal executive and legislative branches also began to focus on desegregation. As a result, school systems desegregated much more quickly, and what equality meant became clearer as desegregation was defined in legal opinions, legislation, and practice.

As desegregation efforts continued to broaden into politically contentious issues areas, such as busing and the reform of school districts in the North and West that never had operated under formal requirements to segregate students, the concept of equality was continually redefined under the microscope of American politics. The opinion in Brown articulated the concept of educational equality in simple and largely aspirational terms with few dimensions. In the decade that followed, educational equality appeared to be nothing more than an empty promise. Yet, in the 1960s, the concept of educational equality grew teeth and precision. Still, as the concept was tested in new contexts, significant debates arose about exactly what equality meant: Did equality simply refer to the protection of rights, or did it require the restructuring of school systems? Did equality only require the end of formal desegregation under law or actual integration? Did equality extend to racially homogeneous schools that were not clearly the products of a governmental intent to segregate students? What sorts of goals would these different constructions of equality serve, and what strategies would be both effective and appropriate to achieve these goals? These sorts of questions riddled the early years of desegregation in law and policy and have continued to drive many debates over education law and policy reforms.

In order to examine the early years of desegregation law and policy, this chapter first provides a brief overview of the education law and policy landscape involving desegregation in the years before Brown. Then, an analysis of Brown is conducted, with a particular emphasis on how the Supreme Court framed the purposes of education and the role of governmental institutions in relation to education equality. After examining Brown, the analysis turns to Brown II and the opposition to desegregation during the era of “massive resistance.” Then, this chapter examines how courts and other governmental branches became increasingly involved in desegregation with a series of Supreme Court and lower federal court decisions, the Civil Rights Act of 1964, the Elementary and Secondary and Education Act of 1965, and the implementation of these decisions and laws in school systems. The increasing willingness of governmental entities to force desegregation in the South, the use of busing strategies, and the movement of desegregation cases to the North and West are particularly examined. Throughout, this chapter highlights not only the legal and policy principles and requirements used to govern desegregation, but also the changing political context, combinations of institutional action, and evidence of the effects of the reform efforts.

Desegregation before Brown

Although this book focuses on education law and policy beginning with Brown, the events leading up to Brown provide an important starting point for discussing the significance of the decision and the reforms that followed. As with Brown, many of the reform efforts focused on educational equality in the pre-Brown years were rooted in the equal protection clause of the Fourteenth Amendment of the U.S. Constitution, which states, “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”⁴ The Fourteenth Amendment was adopted in 1868 as one of the Reconstruction amendments shortly after the Civil War. As one of the Reconstruction amendments, the it was broadly aimed at protecting African American citizens from discrimination after slavery had been abolished. As such, the amendment became the primary legal grounds for constitutional litigation centered on protecting the rights of African American citizens in the post–Civil War era.

Given the ambiguity of the phrase “equal protection of the laws,” the courts worked out the meaning of the equal protection clause over time through a continual process of interpretation and reinterpretation. In the 1896 case Plessy v. Ferguson, the Supreme Court famously articulated the requirements of the equal protection clause when it considered the constitutionality of a Louisiana law mandating separate railcars for African American and white passengers.⁵ Finding that all the railcars were of the same quality, the Court ruled that “separate but equal” treatment was sufficient to satisfy the Fourteenth Amendment and that the Louisiana law was therefore constitutional. As the sole dissenter in the case, Justice Harlan argued for a different construction of equal protection – that the Constitution is color-blind and that African American and white citizens must therefore be treated in exactly the same way, which the doctrine of separate but equal did not accomplish. As a result of its decision in Plessy, the Court essentially allowed southern states’ “Jim Crow” laws, which required racial segregation and usually led to inferior accommodations for African American citizens in practice, to stand.

Despite the apparent relevance of the Fourteenth Amendment to education, equal protection litigation did not focus on education until well into the twentieth century. Public education was not widespread when the Supreme Court decided Plessy, and compulsory education laws were not enacted in every state until 1920.⁶ Although there were some cases focused on education around this time, the Supreme Court jurisprudence of the 1920s and 1930s centered on race largely focused on the creation of procedural rights for accused criminals and protection of African American citizens from the most glaring exploitations of Jim Crow laws.⁷ The National Association for the Advancement of Colored People (NAACP), founded in 1909, spearheaded most of these efforts to protect the rights of African American citizens.

In the years leading up to World War II and during the war itself, the groundwork was laid for changes in reform strategies. During this time, attitudes and practices regarding race generally became more progressive.⁸ Although World War II was grounded in a prodemocratic ideology, many African American soldiers became cynical about the war’s purposes because they were fighting in a segregated army. In addition to demographic shifts and industrialization, the war created economic opportunities for African American citizens and ultimately an urban African American middle class with increased political power. Along with a burgeoning national dedication to civil rights that accompanied the war, such changes increased the political pressure to address racial practices in the southern region of the United States.

Two Supreme Cases in the postwar years particularly reflected this pressure and forecasted the change of constitutional doctrine that would soon follow. In 1950, the Supreme Court ruled in Sweatt v. Painter and McLaurin v. Oklahoma State Regents, cases that both involved graduate school education for African American students.⁹ In McLaurin, the Court held that it was unconstitutional to separate an African American graduate student from white graduate students because it impaired the ability of the African American student to engage in the types of discussions and classroom activities needed to learn his profession. In Sweatt, the Court similarly found that interacting with peers was essential to receiving an equal education in law school and that denying law school admission to an African American student on the basis of race was therefore unconstitutional. While the “separate but equal” doctrine was still in full force and both cases involved a consideration of physical facilities, the intangible aspects of an education had begun to emerge as an important element of equal protection in the school setting. It was this shift in the understanding of equality that would fully emerge in Brown.

Brown v. Board of Education

On May 17, 1954, the Supreme Court announced its decision in Brown v. Board of Education and launched a new era in education law and policy. The unanimous decision in Brown declared racial segregation in public schools unconstitutional under the equal protection clause of the Fourteenth Amendment. In doing so, the Supreme Court not only invalidated a series of Jim Crow laws in the South focused on education but addressed the very purposes of education and the role of government in shaping wide-spanning issues that resided at the heart of the U.S. political and social order.

When Brown was decided, racial segregation in public schools was required under law in seventeen states and Washington, D.C., and by local ordinance in four states.¹⁰ Spearheaded by the NAACP, Brown was filed by thirteen parents on behalf of their twenty children as a class action suit against the Board of Education of Topeka, Kansas. The case directly attacked the policy of racial segregation in elementary schools in Topeka, which was permitted under Kansas law. When Brown was ultimately heard by the Supreme Court in 1953, it was combined with four other cases sponsored by the NAACP that had also been filed around the country: Briggs v. Elliott, Davis v. County School Board of Prince Edward County, Gebhart v. Belton, and Bolling v. Sharpe.¹¹ Several months after the initial oral arguments in 1953, the Court was unwilling to issue an opinion and took the rare step of asking the parties to reargue the case during the following term. The Court specifically ordered the parties to submit briefs on a range of questions, including the original purposes of the Fourteenth Amendment and whether it permits segregation.

While there are several possible reasons why the Court wanted to hear an additional set of oral arguments, a few reasons stand out as the most important.¹² Although it appeared after the first set of oral arguments that the Court would find segregation in public schools unconstitutional, it was likely that four justices would dissent – given the doctrine of stare decisis (that legal precedents should be followed) and the idea that legislatures are better positioned to make policy decisions than courts, some justices believed that declaring segregation unconstitutional in public schools would be inappropriate. Because there would likely have been a strong political response to Brown, the members of the Court seemed to agree that a unanimous decision was highly desirable. Delaying the opinion would also give the Eisenhower administration a chance to weigh in, which was critical for assessing how well Brown would be enforced once the issue was out of the hands of the Court. Indeed, during the time before reargument, the U.S. Department of Justice under Eisenhower filed an amicus curiae brief supporting the NAACP position.¹³ However, instead of focusing on the moral dimension of the rights of African American citizens, the brief emphasized that U.S. segregationist laws had a negative impact on the relations of the United States with other countries because the practice raised doubts about the U.S. commitment to democracy. During the three days of the second set of oral arguments in 1953, the Department of Justice verbally articulated this position as well, along with the parties who responded to the set of issues raised by the Court for reargument.

After several more months of deliberations, the Supreme Court made its decision, and Chief Justice Earl Warren read the unanimous opinion in Brown to a packed courtroom. The opinion itself was relatively short and focused on the major issues raised by the case. After covering the history of the Fourteenth Amendment and finding that the historical record regarding its intent was inconclusive, the Supreme Court briefly noted the cases leading up to Brown (such as Plessy) and the cases that were combined with Brown. Veering away from the applicable law, the Court then famously proceeded to discuss the importance of education in U.S. society:

While the language of this statement is lofty and ambiguous, its line of reasoning is notable. First, the Court framed education not simply as something that could help a student succeed economically and socially but also as a key element of maintaining a democratic society. The Court thus framed education not just as a private good to be distributed for individual benefit but also as a public good impacting the United States as a whole. Second, the Court indicated that education is a central activity of governmental institutions. In doing so, the Court positioned education (and especially an equal education) as a good that requires concerted attention from the government in order for its goals to be accomplished.

Grounded in this philosophical discussion of education, the Supreme Court began its discussion of how a segregated education impacts African American students. The Court wrote, “To separate [African American students] from others of a 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.”¹⁵ Particularly noting its decision in Sweatt, the Court emphasized that intangible considerations are applicable when considering types of harms that are unconstitutional under the Fourteenth Amendment.¹⁶ In addition to attempting to reconcile the finding of psychological harm with precedent, the Court also looked to social science. The Court particularly indicated that the finding of psychological harm was “amply supported by modern authority” and inserted a footnote that included a list of social science studies stressing this point.¹⁷ This list of studies began with the “Clark doll study,” which focused on whether children had positive or negative associations with African American and white dolls.

Although the Supreme Court did not clearly indicate the extent to which social science was necessary to support the finding of psychological harm, its use in Brown has garnered much scholarly attention. It has been praised for allowing reformers to use scientific evidence in litigation as proof of the harms of discrimination.¹⁸ It has particularly freed reformers from the need to prove individualized harm for each plaintiff involved in litigation.¹⁹ However, the Court’s use of social science has also been strongly criticized. The legal scholar Herbert Wechsler argued that the Court’s reliance on social science “narrowed the [equal education] doctrine, diluted the influence of broader notions of justice, and risked privileging social science evidence over background constitutional values.”²⁰ Moreover, several critics have highlighted the Court’s lack of institutional expertise with social science and have specifically noted methodological and interpretive problems with the studies cited by the Court in Brown, such as the Clark doll study.²¹ Despite this debate, some scholars have stressed that the Court actually did not rely heavily on social science, especially given that the studies were only cited in a footnote.²²

Grounded in such legal and social science reasoning, the Court clearly stated that segregation in public education is unconstitutional: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”²³ On the same day, the Court also decided Bolling v. Sharpe, a companion case to Brown addressing school desegregation in Washington, D.C. Although the Court found that the Fourteenth Amendment only applies to the states (as clearly stated in the language of the amendment), the Court found segregation in the District of Columbia unconstitutional under the Fifth Amendment of the U.S. Constitution.²⁴ Continuing its attack on segregation, the Court released a series of per curiam opinions after Brown that declared segregated state parks, beaches, golf courses, and public transportation to be unconstitutional. Per curiam opinions are of particular note in these cases because they are delivered in the name of the court rather than particular judges and generally signify the uncontroversial nature of a decision.

Still, clearly concerned about the political response to Brown, the Court did not specify in Brown how schools should actually be desegregated. The justices were particularly undecided about whether fast or gradual desegregation would engender more social turmoil and resistance.²⁵Brown II, handed down by the Court in 1955 a year after Brown, addressed this question.²⁶ Erring on the side of gradualism, the Court famously stated that public schools needed to be desegregated “with all deliberate speed” and that African American students must be admitted to public schools “as soon as practicable on a nondiscriminatory basis.”²⁷ The Court also placed responsibility for overseeing desegregation with local federal district courts. The Court specified that remedies could address transportation, personnel, and the district attendance zones. The Court further emphasized that district courts were best positioned to determine how much time is necessary for school districts to desegregate in light of their particular local contexts. District courts were thus given “practical flexibility” to shape remedies for school districts in light of the “equitable principles” articulated in Brown I.²⁸ Because of its vague language and gradualism, Brown II has been strongly attacked by a range of critics, perhaps most notably for seeming to invite evasion instead of even minimal attempts at compliance.²⁹

Legislative and Executive Involvement in Desegregation

For much of U.S. history, the federal legislative and executive branches played only a small role in education. In the late eighteenth century, Congress reserved millions of acres for public education in a series of land ordinances under which new states were required to reserve land for public schools.⁴⁶ While the U.S. Department of Education was created in 1867, it was soon reorganized as the Bureau of Education (and later renamed the Office of Education) and primarily focused on the collection and dissemination of educational statistics.⁴⁷ During the first half of the twentieth century, a series of federal laws provided funding to states for fairly narrow purposes, such as giving financial assistance to veterans to attend college under the 1944 “GI Bill” and providing lunch for students under the National School Lunch Act of 1946.⁴⁸

The role of the federal government in education began to change significantly in the 1950s. In the wake of Sputnik’s launch, Congress enacted the National Defense Education Act (NDEA) in 1958, which directed funds to localities in order to promote innovation in education, especially in the areas of science and foreign languages.⁴⁹ This law was passed in the midst of the cold war and reflected a growing sense of the need for the United States to compete militarily and technologically with the Soviet Union.⁵⁰ Especially given that the U.S. Constitution did not mention education or explicitly place any educational power with the federal government, the federal legislative and executive branches largely maintained a “hands-off” approach to education during this time.⁵¹ While the NDEA provided funds to schools to support particular subject areas, the law gave schools much authority over their spending. Yet, the law reflected a notable shift in a political climate that historically had been hostile to centralized, federal power in education.

With the emergence of the civil rights movement and judicial involvement in desegregation, changes in the federal role in education accelerated. In the mid-1960s, public pressure to desegregate schools was beginning to peak. After the assassination of President John F. Kennedy in 1963, Vice President Lyndon B. Johnson succeeded to the presidency and was elected to the office in 1964 by a substantial margin. With the strong backing of the Democratic Party and a liberal majority in each chamber of Congress, President Johnson designed and pushed through Congress the “Great Society” legislation. This package of domestic programs was aimed at addressing civil rights as part of President Johnson’s “War on Poverty,” which reflected the core of President Johnson’s political agenda. The package of legislation included the Civil Rights Act of 1964, the Economic Opportunity Act of 1964, the Voting Rights Act of 1965, the Social Security Act of 1965 (which authorized Medicare and Medicaid), and the Elementary and Secondary Education Act of 1965 (ESEA).⁵² In 1965, the Johnson administration also launched Project Head Start, a program aimed at providing education, health, and social services to young children in low-income families.⁵³ The laws aimed at reforming education occupied a critical position in President Johnson’s plan. As a former schoolteacher, President Johnson believed that education was vital for breaking the “cycle of poverty” and providing students with social mobility. As such, he saw federal leadership in education as a natural and important extension of the New Deal.⁵⁴ The Civil Rights Act and the ESEA were two of the primary laws aimed at doing so.

Green v. County School Board of New Kent County

As both the federal executive and legislative branches were quickly becoming more involved in education and civil rights in the mid-1960s, the federal courts were also entering a new era for judicial involvement with desegregation. The Supreme Court’s decision in Green v. County School Board of New Kent County strongly signaled that the time for increased judicial engagement had arrived.⁷³Green centered on the school system of New Kent County, located in a rural area of eastern Virginia. Approximately half the population of New Kent County was white and half was African American, and there was very little residential segregation in the area. The school system served 740 African American students and 550 white students and had only two schools that were previously segregated under the Virginia Constitution and legal mandates – New Kent School (for white students) and Watkins School (for African American students).⁷⁴ After Brown, the school board of New Kent County continued to operate segregated schools under the authority of several laws enacted by Virginia during the era of massive resistance. Although courts found many of these laws unconstitutional, a pupil placement law requiring students to petition the state board to change schools was not repealed until 1966. Through late 1964, students did not apply for admission to the school they were not originally assigned, and New Kent continued to be attended only by white students, while Watkins remained completely attended by African American students. Reformers filed Green v. County School Board of New Kent County to address these issues.

In 1965, five months after reformers initiated the Green litigation, the school board adopted a freedom-of-choice plan to continue to remain eligible for federal funding. This plan allowed students to choose the school they wanted to attend annually and required students entering first and eighth grade to choose a school. If students did not choose a school, they would be assigned to the school they had previously attended. By 1967, 115 African American students enrolled in New Kent, but no white students chose to attend Watkins. Both the federal district court overseeing New Kent County and the Fourth Circuit Court of Appeals found the New Kent County’s freedom-of-choice plan to be constitutional with minor modifications. The Fourth Circuit particularly indicated that the school board was not required to assign students to schools to achieve greater integration.⁷⁵

When the Supreme Court considered this case on appeal, it focused on the distinction between desegregation and integration but went in completely the opposite direction from the Fourth Circuit. The Court’s unanimous 1968 decision in Green strongly emphasized that school boards operating dual school systems under law were required to take “whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”⁷⁶ Moreover, focusing on the failure of the New Kent school board to adopt its freedom-of-choice plan until eleven years after Brown was decided, the Court stated that the school board was required to “come forward with a plan that promises realistically to work, and promises to realistically work now.”⁷⁷ And while the Court did not state that freedom-of-choice plans could never be considered a constitutional response to remedying segregation, any plan aimed at remedying desegregation would need to have real prospects for accomplishing the goal of creating a unitary, nonracial system. According to the Court, the freedom-of-choice plan adopted by New Kent County clearly was not a sufficient step for transitioning to a unitary system.

Focusing on what a constitutionally appropriate plan would look like, the Supreme Court articulated what were subsequently labeled as the Green factors. In order to comply with the Fourteenth Amendment, school boards would need to take “affirmative steps” to create a unitary system to desegregate not only the student bodies of schools, but also several elements of school operations: faculty, staff, transportation, extracurricular activities, and facilities.⁷⁸ In this way, the Supreme Court did not simply require student assignment to schools without regard to race; it also required student assignment tailored to achieve integrated study bodies, along with a wide range of administrative and operational changes designed to achieve integration across various school functions. In Raney v. Board of Education, a case decided on the same day as Green, the Supreme Court found unconstitutional a desegregation plan that resulted in schools attended only by African American students and populated by 85 percent of African American students in the school system.⁷⁹

Despite the specificity the Supreme Court began to add to the requirements of the Fourteenth Amendment, its decision in Green immediately gave rise to a wave of cases aimed at fleshing out the requirements and limits of the case. The task of interpreting Green centered in part on the use of ratios to achieve integration. District courts began to focus on determining the racial composition of school systems and schools within these systems, whether racial imbalances were permissible, and the steps that could be taken to remedy such imbalances.⁸⁰ On the basis of such ratios, many courts approved plans requiring majority to minority transfer provisions and supervised decisions about the location and capacity of new schools. In 1969, the Supreme Court decided United States v. Montgomery County Board of Education, a case involving ratios of white to African American faculty members. In this case, the Supreme Court reinstated a district court decision that a school board must move toward a goal where the ratio of white to African American faculty members is substantially the same in each school as it is throughout the entire school system.⁸¹ Although the Court emphasized that precise ratios were not required for every school in every circumstance, it did indicate that ratios could be an effective tool for achieving integration.

Following Green, the Supreme Court continued to emphasize the imperative to dismantle segregated school systems immediately. In Alexander v. Holmes County Board of Education, decided the year after Green, the Supreme Court released a one paragraph per curiam opinion chastising the Fifth Circuit Court of Appeals for allowing school districts additional time to create and submit new plans for integration.⁸² The Court particularly noted that the “standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible.”⁸³ In this case, NAACP lawyers notably presented a motion to allow the school districts to be granted this time because the school year was to begin only two months later.⁸⁴ However, the Supreme Court remained focused on immediately speeding the pace of desegregation.

Given the intense focus on desegregation toward the end of the 1960s of a range of governmental actors, the racial composition of schools quickly changed. When Brown was decided in 1954, 0.001 percent of African American students attended majority white schools in the South.⁸⁵ Only 1.18 percent of African American students attended desegregated schools in 1964, and only 6.1 percent of these students attended desegregated schools in 1966.⁸⁶ However, this figure shot up to 16.9 percent in 1967, 32 percent in 1969, and 90 percent in 1973.⁸⁷ Still, by the end of the 1960s and beginning of the 1970s, it was becoming clear that underlying problems grouped around methods to address racial imbalance in schools were beginning to emerge.

Busing and Swann v. Charlotte-Mecklenburg Board of Education

Although the pace of school desegregation significantly increased by the late 1960s, residential segregation remained an issue largely untouched by desegregation plans. Given that members of the same race often lived near each other, transportation and student busing quickly became key issues in the attempts to address racial imbalances in schools. For the most part, busing had not received national attention under the Kennedy administration in the early 1960s – while students in the South were being bused to various schools, this form of busing was largely aimed at maintaining school segregation rather than leveraging desegregation.⁸⁸ However, busing became a focal point for political controversy under the Johnson administration.

Proponents of busing particularly argued that it was a necessary strategy to combat residential desegregation and integrate schools. Opponents of busing highlighted the principle of equality for their own purposes. As discussed previously, the Civil Rights Act of 1964 contained hard won provisions stating that desegregation did not mean racial balancing and by extension did not require the busing of students to address racial imbalances in schools. During the 1964 presidential campaign against President Johnson, the presidential candidate Senator Barry Goldwater (R-AZ) stated that busing was an example of “misguided egalitarianism” and that racial quotas would become a “substitute for the principle of equal opportunity in every aspect of social life.”⁸⁹ Although Goldwater was perceived as an extremist even by some members of his own party and lost the election to Johnson in a landslide, this sentiment forecasted the legal and political problems that would soon follow. Indeed, the 1966 HEW guidelines for the Civil Rights Act faced significant political pushback by requiring specific levels of integration in schools.

In 1968, the busing controversy became the direct subject of litigation when reformers sued in Swann v. Charlotte-Mecklenburg Board of Education.⁹⁰ This case centered on Charlotte-Mecklenburg County, North Carolina, which ran a large school district serving more than eighty-four thousand students in 107 schools. There was a significant amount of residential segregation in the area. While there was a large African American population in the city of Charlotte, there was a predominantly white population in the suburban areas of Mecklenburg County. Of the approximately twenty-four thousand African American students in the school system, approximately fourteen thousand students attended schools that were at least 99 percent African American. Although the district had adopted geographic zoning and freedom-of-choice plans in 1965 that were approved by the Fourth Circuit Court of Appeals, the racial composition of most schools persisted because of the residential segregation in the area. Spurred by the Supreme Court’s decision in Green, the Charlotte-Mecklenburg school board was sued again in 1968 for failing to achieve a unitary school system.

After several hearings and an extensive presentation of evidence, the district court found that certain actions of the school board were discriminatory and that residential patterns in the county resulted partly from federal, state, and local governmental actions.⁹¹ The district court particularly found that the school board had located schools in areas populated predominantly by African Americans and fixed the size of schools to accommodate only the needs of immediate neighborhoods, which in turn resulted in segregated schools. The district court then ordered the school board to present a desegregation plan. After finding the board’s plan unacceptable, the district court required the board to adopt a plan submitted by a court-appointed expert, Dr. John Finger, that extensively relied on busing students. In addition to rezoning the school district, the “Finger Plan” required grouping outlying schools with inner city schools, transporting African American students to predominantly white schools, and transporting white students to predominantly African American schools. The district court also indicated that while achieving an exact racial balance in schools may be impossible, the school district should make efforts to reach a 71 percent–29 percent ratio of student races in schools so that no school is predominantly either white or African American. However, upon reviewing the district court’s decision, the Fourth Circuit proclaimed that it failed the “test of reasonableness.”⁹²

Emphasizing the “dilatory tactics” of many school authorities and historical resistance to desegregation, the Supreme Court sided with the district court in its last unanimous decision on desegregation.⁹³ The Court particularly focused on the need to clarify guidelines for desegregation, especially given demographic shifts to metropolitan areas with dense and moving populations, the presence of several schools in large school districts, and complex traffic patterns around these districts. After highlighting the district court’s use of mathematical ratios for racial balance as “no more than a starting point” in the process of shaping a remedy rather than an inflexible requirement, the Supreme Court approved the district court’s use of a ratio as within its discretionary powers and tailored to the school districts’ particular circumstances.⁹⁴ While the Supreme Court also indicated that schools of predominantly one race in a district of mixed population do not conclusively signify desegregation under law, the Court stated that such school assignments require close scrutiny.

The Supreme Court also approved the district court’s alteration of attendance zones and busing requirements. While acknowledging that there are limits to a district court’s authority to craft remedies for dismantling segregated school systems, the Court refused to establish even “substantially fixed guidelines” as to how far a court can go.⁹⁵ Emphasizing the objective of creating a unitary school system, previous attempts to avoid desegregating schools in Charlotte-Mecklenburg, and the “informed judgment” of the district court, the Supreme Court approved the district court’s use of attendance zones. Similarly stressing that it could not construct rigid guidelines for transportation given the “infinite variety of problems presented in thousands of situations,” the Court approved of the use of busing to desegregate schools.⁹⁶ While the Court did indicate that factors such as the time or distance of travel and age of students could make a busing plan unworkable, the Supreme Court found that courts were able to reconcile the competing values involved in the construction of busing plans.

After the Supreme Court released its decision in Swann, the use of ratios, redrawing of attendance zones, and busing of students became commonplace strategies used by school districts and approved by district courts to combat segregation. While these strategies were fairly effective at integrating schools, they also involved significant costs, as discussed at length in several congressional hearings. For example, in Nashville, Tennessee, the high school day was shortened from seven to six hours, the beginnings of the school day for 141 schools were staggered to begin at twenty-minute intervals from 7:00 to 10:00 AM, and transportation became unavailable for field trips. The costs of additional equipment, operation, and maintenance were $1,418,100 for eighty-seven buses, $177,000 for maintenance equipment, $70,000 for operation costs for one year, and $56,000 for the installation of safety loading zones.⁹⁷ When funds were not available for such expenses, school districts sometimes were required to reduce the quality or number of educational programs and services.⁹⁸ While more difficult to measure, busing directly impacted students by moving them out of familiar surroundings.⁹⁹

In light of such problems, the political climate became increasingly hostile to the methods used by courts to desegregate schools. Many white, middle-class parents and students began to move away from cities and into the suburbs to avoid requirements that would result in more integrated schools. In 1972, President Nixon proposed legislation to limit courts’ authority to bus students.¹⁰⁰ Although this legislation was defeated in the Senate by filibuster, Congress approved a provision in the Education Amendments of 1972 that federal funds could not be used for transportation to overcome racial balance except on express written voluntary request of school officials. There was also significant local resistance in liberal northern states that had begun to employ busing. For example, Governor Francis Sargent (R-MA) vetoed attempts to repeal Massachusetts’ Racial Imbalance Act, which prohibited the use of state funds to facilitate racial balance in school districts. Indeed, Boston, Massachusetts, experienced several high-profile and violent protests in response to a court order that required significant busing to desegregate Boston schools.¹⁰¹ Reflecting such resistance to busing, a Harris poll in 1970 showed that 77 percent of white respondents opposed busing to integrate schools, while 16 percent supported busing and 7 percent were undecided. The same poll showed that the African American community was almost split, with 46 percent of respondents supporting busing, 40 percent opposed to busing, and 14 percent undecided. Such opposition would soon surface not just in local areas and Congress but even the Supreme Court as well.

Desegregation in the North and West and Keyes v. School District No. 1

Although desegregation litigation had largely focused on the South through the 1960s, school districts in the North and West became the center for some of the most important struggles in school desegregation beginning in the 1970s. While schools in the North and West generally had not been segregated by explicit legal mandates, many schools were nevertheless attended by students of predominantly one race. Given how widespread this phenomenon was, courts and other governmental institutions had begun to distinguish among different types of segregation. Although the exact contours of this distinction varied across courts and circuits, certain categories of segregation began to emerge. De jure segregation generally referred to segregation caused by the law or intent of government officials to create or maintain segregated schools and was clearly unconstitutional. De facto segregation generally referred to segregation caused by factors other than governmental intent to segregate schools (such as residential housing patterns) and was thought to be permissible under the Fourteenth Amendment by several courts. Classifying the type of segregation present in schools in the North and West was very difficult – in the absence of explicit legal mandates to segregate schools, courts were required to discern intent to segregate students from the actions of school officials, such as creating attendance zones and constructing schools in ways that reflected purposeful maintenance of racially segregated student bodies.

While the Supreme Court first noted the de facto/de jure distinction in Swann, it did not become a central issue in desegregation cases until litigation turned to the North and West. In Keyes v. School District No. 1, this distinction played a pivotal role.¹⁰²Keyes involved the Denver, Colorado, school district, which was the first nonsouthern urban district to undergo extensive desegregation litigation.¹⁰³ Although some other districts in the North and West had already experienced some desegregation litigation, including Pasadena and San Francisco, California, and Pontiac, Michigan, these cases had not been appealed to the Supreme Court.¹⁰⁴ Courts in these cases generally took the stance that any form of segregation was unconstitutional and racial balancing was an appropriate remedy. Moreover, courts in these cases generally concluded that actions purposefully aimed at maintaining racial imbalance constituted de jure segregation. The Supreme Court’s decision in Keyes, centering on the conceptually thorny question of what the de facto/de jure distinction means, was its first nonunanimous desegregation decision.

The Denver school district was a perfect location for fleshing out this distinction. In 1969, the district had 119 schools with 96,580 students. The Park Hill area, located in the northeast portion of Denver, had schools that were predominantly attended by African Americans. In early 1969, the Denver school board adopted three resolutions designed to desegregate schools in Park Hill.¹⁰⁵ However, the resolutions were rescinded and replaced with a voluntary student transfer program after an election that resulted in a new school board majority. The Denver school district was then sued to reinstate the resolutions, desegregate the schools, and provide an equal educational opportunity to students in the school district “as a whole.”¹⁰⁶ The district court found that the school board had purposefully engaged in racial segregation of the Park Hill schools since 1960 through strategies such as placing a small elementary school in the middle of a predominantly African American community near Park Hill, gerrymandering school attendance zones, and excessively employing mobile classroom units.¹⁰⁷

The plaintiffs, however, were not simply interested in desegregating Park Hill schools. They were interested in desegregating the district as a whole, including the heavily segregated schools in the core city area of the district that served thousands of students. Upon examining the history of the core city schools, the district court did not find that school officials had engaged in a purposeful and systematic program of racial segregation; according to the district court, the segregated conditions in the core city schools were caused by residential housing patterns. Moreover, the district court found that the finding of intentional de jure segregation in Park Hill should not affect its examination of other areas of the city. As a result, the district court concluded that the finding of intentional discrimination in Park Hill was not sufficient to “dictate the conclusion that this is de jure segregation [across the entire district] which calls for an all-out effort to desegregate. It is more like de facto segregation, with respect to which the rule is that the court cannot order desegregation to provide a better balance.” ¹⁰⁸

Still, the district court did find that the predominantly African American core city schools were educationally inferior to the predominantly white schools. Although desegregation could not be decreed for these schools, the school board was required to improve the quality of the educationally inferior schools and provide compensatory education. On appeal, the Tenth Circuit Court of Appeals agreed with the district court’s analysis and treatment of the Park City schools.¹⁰⁹ However, the Tenth Circuit found that it was improper to order the implementation of school improvement programs in the core city schools. Accepting that student assignment to these schools was constitutional, the Tenth Circuit indicated that it was powerless to resolve educational problems arising from factors other than governmental action.

In a majority opinion written by Justice Brennan, the Supreme Court rejected the decisions of the district court and the Tenth Circuit and found that both courts employed the wrong legal standard for finding de jure desegregation. The Court highlighted that school officials carried out a “systematic program of segregating a substantial portion of the students, schools, teachers, and facilities within the school system,” and that “it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.”¹¹⁰ The Court particularly found that the practice of purposefully maintaining predominantly African American student bodies in some schools kept other schools predominantly white. In other words, the various strategies employed to segregate Park Hill schools by race appeared to have a reciprocal effect on the racial compositions of other schools and residential neighborhoods (which would in turn cause further racial isolation in schools).

Given the potential for such a relationship to exist between the Park Hill schools and the core city schools in Denver, the Supreme Court established that a finding of intentionally segregative school board actions in one part of a school system “creates a presumption that other segregated schooling within the system is not adventitious.”¹¹¹ The Court particularly highlighted that where school officials have purposefully engaged in segregation in one part of a district, there is a high probability that they have engaged in similar activities in another part. Still, the Court emphasized that a district could rebut this presumption – although the burden would lie with a district to rebut the presumption that purposeful segregation in one part of the district caused segregation, contributed to segregation, or reflected intent to segregate in another part, overcoming this presumption would be possible with enough evidence. Grounded in such logic, the Court clarified the de jure/de facto distinction: While governmental intent or purpose to segregate is the differentiating factor between the two, a finding of de jure segregation in one area can spill into other related areas unless the finding is proven to be “isolated and individual.”¹¹² Given the large Hispanic population in Denver, the Court indicated that Hispanics also experienced discrimination somewhat like that experienced by African Americans and that they should be considered an identifiable racial group for equal protection analyses as well.

Although four other justices voted with Justice Brennan, the Supreme Court was fracturing along key conceptual lines. Justices Douglas and Powell wrote concurring opinions arguing that there should be no difference between de jure and de facto segregation. Justice Douglas emphasized that where neighborhoods are created along racial lines that restrict certain areas to the “elite,” the “undesirables” move elsewhere. According to these justices, there was no meaningful way to untangle de jure and de facto segregation conceptually because the composition of nearby neighborhoods and school attendance patterns were so entangled. Justice Rehnquist, appointed by President Nixon in the year before Keyes was decided, dissented. Rehnquist objected to the basic idea that Brown required some sort of integration and argued against the Court’s earlier extension of Brown in Green. Rehnquist particularly argued that Brown required only a prohibition against discrimination.

After the Supreme Court handed down its opinion in Keyes, the district court was charged with applying the new legal standard to the situation in Denver. This court approved a desegregation plan covering the entire district with strategies including rezoning attendance areas and busing. Keyes soon spurred a wave of other lawsuits in the North and West involving busing in areas such as Los Angeles and Stockton, California; Wilmington, Delaware; Indianapolis, Indiana; Boston and Springfield, Massachusetts; Detroit, Michigan; Minneapolis, Minnesota; and Dayton, Columbus, and Cleveland, Ohio.¹¹³ Indeed, grounded in Keyes, these lawsuits fell into a fairly uniform pattern by the late 1970s.¹¹⁴ Plaintiffs in these cases first attempted to show evidence that a school board had engaged in a purposeful practice to segregate in some areas. Such evidence included faculty hiring and assignment patterns, drawing of attendance zones, patterns of school closing and construction, use of temporary rooms to address overcrowding where reassignment was possible, and withdrawing actions taken by an old school board to desegregate schools. Having established purposeful intent to segregate, there was a presumption that de jure segregation occurred across the district. School boards then attempted to contest this presumption by introducing evidence that they had historically attempted to create neighborhood school systems and that the racial composition of schools simply reflects the racial composition of surrounding neighborhoods.

Although Keyes ultimately made it easier for reformers to win desegregation cases and cause entire districts across the United States to implement desegregation plans, the trajectory of desegregation litigation was about to change again. Keyes was the last Supreme Court case that significantly expanded constitutional doctrine in a way that made desegregation efforts more likely, and the lack of a unanimous verdict signaled that cracks in the government’s treatment of desegregation were beginning to emerge. As desegregation continued and new dimensions of the problem were continually being considered, core concepts at the heart of desegregation that had once begun to sharpen were now becoming muddy again. Just as importantly, the political climate was quickly turning.

Conclusion

With its decision in Brown v. Board of Education, the Supreme Court transformed the concept of an equal education into a force that would drive large-scale education reform efforts in education for decades. Although the idea of an equal education had played a central role in some major cases before 1954, Brown has become elevated almost to the status of a founding myth in U.S. history and is arguably one of the most important cases ever decided by the Supreme Court. The case situates education as a key function of government in a society that highly prizes the notion of equality. Brown contains the seeds for the growth and transformation of the notion of equality through U.S. law and policy more broadly. On a deeper level, the case touches on core values and the fundamental role of governmental institutions in American society.

Despite the power and importance of Brown, the opinion in Brown was only a starting point for what turned into an ongoing conversation about the meaning of educational equality. While Brown clearly indicated that educational equality could not be characterized as “separate but equal,” the Supreme Court’s short opinion was unclear about what educational equality actually means beyond the inherent inequality of separate facilities. The case itself was decided under the ambiguous language of the Fourteenth Amendment that provides “equal protection.” In addition to (or perhaps growing out of) the requirements of the equal protection clause, the main anchor for the logic of the case was the deceptively complex notion that education must be equal in ways that can support a robust democracy and social mobility. In this way, the concept of an equal education already contained an inherent tension: While democracy is a public good – a social end – social mobility is generally a private good that relates to an individual’s social and economic position and how one can improve it. This tension would become much clearer in the decades that followed. Moreover, the decision in Brown appears to have been anchored partly in the goal of improving the international standing of the United States, which constitutes a very different sort of public good. As later chapters discuss, crafting laws and policies to accomplish one of these goals can lead to a very different education system than one tailored to other goals.

Given the ambiguity of Brown, the Supreme Court decisions following it also reflect the malleability of educational equality in law and policy. Although Brown II did not substantively define what an equal education means, it addressed how quickly desegregation must proceed with the vague and almost paradoxical language of “with all deliberate speed.” After the decade-long delay in attending to the meaning and implementation of Brown during the era of massive resistance, the concept of educational equality became more specific. Evaluating the constitutionality of freedom-of-choice plans, Green sharpened the concept by articulating precisely what elements of schooling must be desegregated, and Swann and related cases went so far as approving the use of precise mathematical ratios of a school’s demographics to characterize educational equality. The Civil Rights Act and especially its guidelines, which quickly went through major revisions, ultimately pushed toward defining educational equality as integration and substantive equality of facilities. In concert with the funds provided by the ESEA, the Civil Rights Act and its guidelines also provided a specific enforcement mechanism focused on withholding funds. Swann approved busing as a legitimate (and ultimately primary) tool to achieve educational equality. While the approval of busing was important as a way to formalize a concrete practice as a central part of educational equality, it was also critical because it legitimized a fundamental move in the definition of equality – building on the Civil Rights Act guidelines, the Supreme Court also began to blur the idea of dismantling laws requiring segregation with integration. Keyes further fleshed out the definition of educational equality by articulating the difference between de facto and de jure segregation, even to the extent of establishing legal presumptions where certain conditions are met. As such, the concept of equality in education law and policy was defined as much by the concrete practices used to effect desegregation as by abstract legal language.

This transformation of educational equality appears to have been driven by several interrelated factors. Political pressures, grounded in broad social, economic, and technological changes, significantly influenced how the concept of educational equality transformed. When Brown was decided, changes such as the rise of an urban African American middle class made the political climate sufficiently ripe for the Supreme Court to act without an overwhelming groundswell of political support. However, the era of massive resistance, marked by very little governmental action directed at defining or implementing commands for equal protection, was largely the product of political resistance to Brown. But especially given the shockingly violent resistance to Brown, the political climate around the country became more open to desegregation in the mid-1960s. This was precisely the time when Congress and the presidency became active in desegregation and when the Supreme Court reengaged. Still, as the “rubber hit the road” with the onset of busing, the political climate again began to turn against the desegregation movement. Indeed, the ideological composition of the Supreme Court also began to shift as resistance from the Court to ongoing desegregation began to emerge.

The governance structure in which the concept of educational equality was implemented also appears to have had a significant influence on how the concept was defined. Desegregation proceeded largely through the top-down decision making of the courts. The Supreme Court refined and clarified most of the major requirements of educational equality in cases such as Green, Swann, and Keyes. Framed by the Supreme Court’s statements that desegregation needed to be tailored to local conditions, district courts and circuit courts were left some room for discretion and responded differently to situations with which they were confronted. Such differences among responses were sometimes legitimate. For example, given lack of guidance, lower courts had different interpretations of what de jure segregation meant. However, other differences were clearly illegitimate, such as the failure of many lower courts to act during the era of massive resistance. Still, beginning in the mid-1960s, district courts largely approved or disapproved of desegregation plans in ways that were directly keyed to understandings of Supreme Court jurisprudence.

As noted previously, the governance structure of educational equality also shifted in the mid-1960s with the enactment and enforcement of the Civil Rights Act and ESEA. While these legislative and executive actions were clear sources of definitional power by themselves, these actions were particularly important vis-à-vis their interaction with the courts; in the context of vague constitutional provisions and Supreme Court rulings, lower courts looked to these laws (and especially guidelines) for more precise standards for educational equality. As later chapters discuss, such governance structures continued to shift significantly in the years to come. Courts ruling in cases involving educational equality would soon begin to take roles other than those of top-down deciders, and legislative action became much more important for defining educational equality.

The concept of educational equality was also strongly influenced by the nature of how ideas are fleshed out through the ongoing process of implementation. After law or policy decisions are made, they are generally revisited after a certain period of time has passed. While these decisions are sometimes revisited simply in terms of their effectiveness or political viability, they are often reconsidered in light of problems that can only become clear through the process of implementation. As a result, decisions are modified and refined, if not ultimately reversed. For example, parts of the Civil Rights Act and Green were directly aimed at combating freedom-of-choice plans. In these instances, law and policy decisions were made and revisited in light of particular strategies that emerged as a common response to diminish the effectiveness of desegregation. Similarly, the extent to which residential segregation would impact desegregation efforts was not quite so clear to many at the time of Brown. But as desegregation efforts continued, residential segregation emerged as one of the most significant barriers to school desegregation. The concept of equality appears to have shifted partially in response to this issue – the removal of formal legal mandates to segregate schools was insufficient to desegregate schools. Some form of integration, along with the tools needed to implement integration (such as busing and geographic rezoning), was necessary if an equal education meant the elimination of predominantly one-race schools. Indeed, while equality is a core American value, it is simply a muddy concept that can only be refined in light of its continual application and reapplication to real world situations.

Given the shifting nature of such factors and their relationships with each other, the effectiveness of desegregation law and policy varied significantly from Brown through the early 1970s. When the Supreme Court ruled in Brown I and II, it acted as the sole governing body making a decision primarily affecting an area with extreme political resistance. In doing so, the Court was very successful at laying the foundation for canonical legal principles and a social touchstone for generations to come. But in this context, the Court was ineffective at leveraging immediate change on the ground, especially in the Deep South. However, desegregation law and policy became much more effective in the mid-1960s. During this time, the political climate had become much more favorable to desegregation, and the legislative and executive branches joined the courts and added their legal and political might to the desegregation effort. Just as importantly, the more precise standards for desegregation, crafted by executive and legislative action, helped the courts flesh out their own vague requirements. In part grounded in such action, the courts became much more effective agents of holding school districts accountable for desegregation. Indeed, the courts did so just as they proceeded to grapple with thorny conceptual questions about precisely what equality means in light of changing conditions brought to light by implementation. As a result of such actions, quantitative evaluations clearly indicate that schools in the South were being rapidly desegregated between the late 1960s and early 1970s in what is perhaps one of the most successful periods of education reform in U.S. history.

These early stages of the desegregation movement reflect both the strengths and the weaknesses of the governmental institutions at play. As the Supreme Court demonstrated in Brown and the other major desegregation cases, the courts can be a very useful institution for working through philosophical principles that hold much weight in the collective social consciousness. Moreover, the courts can be trailblazers in areas where the political climate does not favor change. Yet, reflecting its unwillingness to remain out of step with the prevailing political climate for long periods, the Supreme Court became almost dormant in the decade after Brown. Indeed, the Court’s relative lack of activity during this period reflects its institutional inabilities to push complex reforms in times of political isolation, given its lack of enforcement and managerial capacities.

However, the courts acted largely in line with their strengths when desegregation efforts were at their most effective from the mid-1960s through early 1970s. The courts continued to work through important philosophical and moral concepts and kept desegregation efforts moving forward despite remaining political opposition. At the same time, the courts were able to draw on precise standards worked out by other bodies with more institutional expertise and could draw on the threat of enforcement from other governmental institutions with stronger capacities to do so. Desegregation efforts during this period similarly reflect the strengths and weaknesses of the legislative and executive branches. Both of these institutions acted in ways that were more immediately in line with the political climate than the courts. Although these institutions did not act quickly after Brown, they activated as the political climate further shifted in the 1960s and contributed in precisely the ways in which the courts could not.

So, in the context of these interacting factors, the slippery concept of educational equality was hammered into law and policy in a way that never stopped moving and continually offered glimpses into complexities that would soon come to light. The idea of educational equality itself was always lofty and iconic. At times it was toothless and vague, while at other times it was sharp and precise. Still, just as the desegregation movement was at its most effective in the early 1970s, cracks were starting to emerge, giving hints that the concept was being stretched to its political and legal edge.