Green v. County Sch. Bd. of New Kent County (1968)
Green v. County Sch. Bd. of New Kent County (1968)
391 U.S. 430
The school board of New Kent County maintained two schools, one on the east side and one on the west side of New Kent County, Virginia. At the time of the case, about one half of the county’s population was African American, who reside throughout the county since there is no residential segregation. Although this Court held in Brown v. Board of Education (Brown I) that Virginia’s constitutional and statutory provisions requiring racial segregation in schools were unconstitutional, the school board continued segregated operation of the schools, presumably pursuant to Virginia statutes enacted to resist that decision. In 1965, after this suit for injunctive relief against maintenance of allegedly segregated schools was filed, the school board, in order to remain eligible for federal financial aid, adopted a “freedom of choice” plan for desegregating the schools. The plan permitted students, except those entering the first and eighth grades, to choose annually between the schools. Those not choosing were assigned to the school previously attended; first and eighth graders were required to affirmatively choose a school. The District Court approved the plan, as amended, and the Court of Appeals approved the “freedom of choice” provisions, although it remanded for a more specific and comprehensive order concerning teachers. During the plan’s three years of operation, no white student chose to attend the all-black school, and although 115 African-American pupils enrolled in the formerly all-white school, 85% of the African American students in the system still attended the all-black school.
Opinion of the Court: Brennan, Black, Douglas, Harlan, Stewart, White, Fortas, Marshall.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question for decision is whether, under all the circumstances here, respondent School Board’s adoption of a “freedom of choice” plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board’s responsibility “to achieve a system of determining admission to the public schools on a nonracial basis….” Brown v. Board of Education (Brown II). . . .
The pattern of separate “white” and “Negro” schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws. Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools, but to every facet of school operations — faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part “white” and part “Negro.”
It was such dual systems that, 14 years ago, Brown I held unconstitutional, and, a year later, Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” It is, of course, true that, for the time immediately after Brown II, the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the “white” schools. Under Brown II, that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about; it was because of the “complexities arising from the transition to a system of public education freed of racial discrimination” that we provided for “all deliberate speed” in the implementation of the principles of Brown I. . . . Yet we emphasized that the constitutional rights of Negro children required school officials to bear the burden of establishing that additional time to carry out the ruling in an effective manner “is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.” We charged the district courts, in their review of particular situations, to “consider problems related to administration arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.”
It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board’s “freedom of choice” plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may “freely” choose the school he will attend. The Board attempts to cast the issue in its broadest form by arguing that its “freedom of choice” plan may be faulted only by reading the Fourteenth Amendment as universally requiring “compulsory integration,” a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that, in 1965, the Board opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual, segregated system. Brown II was a call for the dismantling of well entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. The constitutional rights of Negro school children articulated in Brown I permit no less than this, and it was to this end that Brown II commanded school boards to bend their efforts.
In determining whether respondent School Board met that command by adopting its “freedom of choice” plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a “prompt and reasonable start.” This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for “the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.” . . . The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.
The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. . . .
We do not hold that “freedom of choice” can have no place in such a plan. We do not hold that a “freedom of choice” plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that, in desegregating a dual system, a plan utilizing “freedom of choice” is not an end in itself. As Judge Sobeloff has put it,
“‘Freedom of choice’ is not a sacred talisman; it is only a means to a constitutionally required end — the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, nonracial system.’”
Although the general experience under “freedom of choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, “freedom of choice” must be held unacceptable.
The New Kent School Board’s “freedom of choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system. In three years of operation, not a single white child has chosen to attend Watkins school, and, although 115 Negro children enrolled in New Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the Negro children in the system still attend the all-Negro Watkins school. In other words, the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.
The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court, and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.