Legal Aspects Segregation
History, From Plessy to Brown, From Brown to Freeman, Segregation in Higher Education
Segregation in education is a systemic practice or policy of establishing and maintaining racially separate educational facilities, services, and activities. Historically, racial segregation in education includes assigning African-American and white students to separate school facilities because of race, and assigning only African-American teachers, staff, and administrators to schools established for African-American students while assigning only white teachers, staff, and administrators to schools established for white students. Racial segregation also involves the use of separate buses for African-American and white students and racially separate extracurricular activities, such as athletic programs. Segregation in education also includes widespread discrimination in the educational process against groups other than African Americans, such as Asian Americans, Native Americans, and Hispanics. The practice of segregation in education involves all levels of the educational process: elementary, secondary, undergraduate, graduate, and professional schools.
The American legal system has played a major role in the creation, maintenance, and elimination of segregation in public education. In the American legal system the courts generally are responsible for the interpretation of laws, and major court decisions constitute a framework of reference for discussion of the legal aspects of segregation in education. There are fifty-one legal systems in the United States: one for each of the fifty states and a separate federal legal system created by the Constitution of the United States. Although each state legal system has some responsibility for resolving legal issues about segregation in education, it is the federal legal system, and particularly the Supreme Court of the United States, that has the major role in deciding legal issues involving segregation in public education.
Any meaningful discussion of the legal aspects of segregation in education inevitably centers on the national commitment to equality that has been read into the Constitution of the United States. America did not formally commit itself to equality until after the Civil War when it abolished slavery in the Thirteenth Amendment (1865), provided individuals equal protection of the law in the Fourteenth Amendment (1868), and guaranteed individuals the right to vote in the Fifteenth Amendment (1870). An important provision of the Constitution that embraces the national commitment to equality is the Fourteenth Amendment which provides that "[n]o State shall … deny any persons within its jurisdiction the equal protection of the laws." A primary reason for the national commitment to equality is to eliminate racial discrimination against African-Americans in all aspects of governmental (or public) activities. Congress has a role in implementing the equality policy and carries out this role when it enacts laws, including laws to eliminate segregation in education. In the final analysis the federal courts, and particularly the Supreme Court, have final authority to interpret the meaning of equality. Over time the federal courts have adopted different meanings of equality.
No provision in the Constitution of the United States requires governments to provide an education for any person. Rather the equal protection clause of the Fourteenth Amendment requires only that if a state provides public education it must make it available to all of its individuals without regards to race. All states provide a system of public education at all levels: elementary, secondary, and college-level. Racial segregation in education in the United States has its genesis in the institution of slavery. The dominant social philosophy during slavery was that African Americans were inferior to whites. The Supreme Court legalized slavery's social philosophy in 1857 in Dred Scott v. Sanford. The Court held, in Dred Scott, that even emancipated African Americans who had been free for many years were to be "regarded as beings of an inferior order" who were "altogether unfit to associate with the white race," and were "so far inferior that they [had] no rights which the white man was bound to respect." Laws prohibited education of slaves prior to the abolition of slavery in slave-holding states.
In some nonslave-holding states, public schools were desegregated when they first appeared in the United States, but eventually some African-American parents took steps to set up privately funded separate schools for their children because of their dissatisfaction with the quality of education their children received in racially integrated schools. Later, some of these African-Americans students sought admission to publicly funded schools, but public school committees instead set up racially separate schools for them.
As early as 1849 a Massachusetts state court, in Roberts v. City of Boston, upheld the segregation of African-American and white students in public schools. The plaintiff in Roberts was a five-year-old African-American student who challenged the Boston, Massachusetts, school committee's refusal to admit her to an all-white primary school. Rejecting the plaintiff's argument that segregation of students in public schools because of race violated the state's constitutional mandate of equality, the court held that the school committee's decision represented a reasonable and nondiscriminatory exercise of its power. The court held also that if racial segregation generated feelings of prejudice in black students, then law probably could not change those feelings. Roberts was one of the first cases to adopt the separate-but-equal theory of equality. The separate-but-equal theory of equality, like the Dred Scott philosophy, was motivated by racism; thus it did not make it lawful for school boards to establish racially segregated schools. The Supreme Court relied on the Roberts case in its 1986 decision in Plessy v. Ferguson to hold that racial segregation of African Americans and whites was lawful and therefore did not violate the equality policy in the federal constitution. A few state courts rejected the Roberts case's separate-but-equal doctrine by holding that racially segregated schools violate the rights of African-American students to equality.
Almost immediately after the Civil War and the adoption of the Thirteenth Amendment, southern states enacted laws called "black codes." These codes were enacted to try to retain as much as possible the Dred Scott philosophy by codifying almost every aspect of the lives of former slaves, including circumstances under which they could be educated. Legally mandated racial segregation was not confined to public schools, nor was it confined to the south. Many border and northern states maintained some form of segregation, including public schools, until the end of World War II.
From Plessy to Brown
In Plessy v. Ferguson, the Supreme Court held that a Louisiana law requiring racial segregation of passengers in railway coaches was not prohibited by the equal protection clause of the Fourteenth Amendment. The Louisiana law required "separate railway carriages for the white and colored races" on all passenger railways within Louisiana. In upholding the Louisiana law, the Court legally sanctioned the separate-but-equal theory of equality. The separate-but-equal doctrine holds that the equality does not require racial integration if a state provides separate accommodations or services for blacks that are equal to those provided to whites. The Roberts decision, rather than its subsequent repeal by the Massachusetts legislature, was a major legal precedent on which the Supreme Court relied in its Plessy decision. In Cumming v. Richmond Board of Education, the Court suggested that the constitutionality of segregation in the field of education had not yet been decided. But in Gong Lum v. Rice, decided in 1927, the Court relied upon both the Plessy and Roberts cases to reject a claim by a Chinese-American student who claimed that she had been denied equal protection because she had been assigned to a public school for African-American students. Despite the ambivalence in the Supreme Court cases on whether the Plessy separate-but-equal theory of equality applied to public education, the courts, including the Supreme Court, accepted the view that the Plessy case stated a legal rule that applied equally to public education (Briggs v. Elliot).
The separate-but-equal theory of equality provided the legal foundations for racial segregation in education (and all other state supported activities) until the Supreme Court decided the landmark case of Brown v. Board of Education (Brown I) in 1954. Brown I was the result of a litigation strategy that relied upon a series of test cases to try to convince the Supreme Court to reject the separate-but-equal theory of equality. In a series of "equalization" cases before Brown I, major civil rights organizations claimed that state-funded graduate and professional schools for African Americans, although racially "separate," did not provide African-American students an education opportunity "equal" to educational opportunities available to white students in schools reserved for whites. Thurgood Marshall, who later became the first African-American justice of the Supreme Court, played a major role in the legal campaign to overturn the separate-but-equal doctrine. Brown I involved legal challenges to segregated elementary and secondary public schools in Kansas, South Carolina, Delaware, Maryland, and the District of Columbia.
The Supreme Court rejected the separate-but-equal doctrine in Brown I. The legal issue in Brown I was whether state-supported racial segregation in public elementary and secondary schools was lawful under the equal protection clause of the federal constitution even though the physical facilities and other tangible factors may be equal. In specifically addressing this issue, the Court held that "[i]n the field of public education the doctrine of 'separate but equal' has no place" because "[s]eparate educational facilities are inherently unequal." The Court, in Brown I, left undecided the issue of what states had to do to eliminate racially segregated schools, but it addressed that issue about year later in Brown II. In Brown II, the Court ordered lower federal courts to require school authorities to "make a prompt and reasonable start toward full compliance" with Brown I, and to admit students to public schools on a "racially nondiscriminatory basis with all deliberate speed."
From Brown to Freeman
The southern states engaged in massive resistance to the Brown decisions. "Massive resistance" is a term that was coined in the era after Brown to describe southern states' efforts to evade and avoid the legal mandate of Brown I. Massive resistance took many forms. Some southern communities, for example, closed their schools rather than allow African-American and white students to attend the same schools. President Dwight D. Eisenhower had to use the National Guard to help integrate white schools in Arkansas. Other school districts adopted "pupil placement" plans, "minority to majority" transfer plans, or "freedom of choice" schemes, all of which were adopted to avoid compliance with Brown I ; and most of these tactics succeeded in maintaining racially segregated state-supported school systems for more than a decade. The various massive resistance schemes required African-Americans parents and students to initiate legal action against many school districts in an effort to compel compliance with Brown I.
The massive resistance to Brown I produced minimal desegregation of schools by the time the Court decided Green v. School Board of New Kent County in 1968. In Green, the Court held, for the first time, that Brown I imposed an affirmative obligation on school districts to convert segregated, dual-school school systems to unitary school systems in which racial discrimination would be eliminated "root and branch." A unitary school system is one that has fully complied with the mandate of Brown I. Green also enunciated at least six criteria that lower federal courts should consider in determining whether a school system has achieved a unitary status. Those criteria focus on student assignments, faculty assignments, staff assignments, transportation (busing), extracurricular activities, and school facilities. A year later, the Court, in Alexander v. Holmes County Board of Education, held that the Brown II"'deliberate speed' for desegregation is no longer constitutionally permissible." The federal courts have developed a substantial body of case law on remedies to determine whether dual school systems are progressing toward a unitary, nonsegregated system. These remedies include busing, magnet schools, and the location of new schools in geographical areas to maximize racial integration.
In school desegregation litigation, the Supreme Court has made an important distinction between de jure and de facto racial discrimination. De jure segregation is intentional racial discrimination that is affirmatively required by state law, custom, or usage. De facto segregation is racial separateness that occurs without the sanction of law. Brown I generally is inapplicable to de facto segregation. There has been no effort by the Supreme Court to address the constitutionality of de facto segregation since 1973 when the Supreme Court refused in Keyes v. School District No. 1 to abandon the distinction between de jure and de facto segregation.
During the years following World War II, there developed an exodus of white families who relocated to suburbia. This exodus has been described as "white flight." In the school desegregation cases, white flight is the mass migration of whites from urban communities to suburban communities to avoid enrolling their children in racially integrated inner-city schools. One of the results of white flight has been that African Americans and other persons of color have largely populated many inner cities. As a result, there are many school districts throughout the United States with a significant number of schools with no or very little racial integration.
Many school districts have been under the supervision of federal courts since 1954 when the Court decided Brown I. The Supreme Court has held that federal supervision of school desegregation programs was intended to be a temporary measure, and not to operate in perpetuity. Local control of education comes from the Constitution. The power to control education has not been delegated to the federal government; rather it is the responsibility of the various states. In several cases, the Supreme Court has provided illustrations of circumstances under which school boards should be released from federal courts supervision of desegregation orders. In Board of Education of Oklahoma City Public Schools v. Dowel, the Court held that a formerly segregated school districts may be released from court-ordered busing as long as all "practicable" steps to eliminate the vestiges of past de jure segregation have been taken. In Freeman v. Pits, the Court made clear that racial isolation of schools brought on by white flight that was not the fault of school districts is not subject to the mandate of Brown I and its progeny. In Freeman, the Court held that federal courts are justified in relinquishing supervision over school districts subject to desegregation in piecemeal fashion before full compliance with the Green criteria has been achieved. And in Missouri v. Jenkins, the Court held that a lower federal district court funding order, which relied upon creating and maintaining "desegregative attractiveness" in order to deal with white flight, was outside of the authority of the federal courts under Brown I.
Segregation in Higher Education
The Supreme Court has held that the rule it announced in Brown I is applicable to segregation in higher education, but made a distinction between the obligation of states to remedy segregation in higher education and elementary and secondary education. In United States v. Fordice, the Court addressed the issue whether, under Brown I, states that have engaged in de jure discrimination in higher education are obligated to take steps beyond adopting race-neutral admission policies to desegregate these educational institutions. In response to this question, the Court held that states have an affirmative legal obligation to remedy the remnants of prior de jure segregation. The standard the Court adopted for higher education was that states have an obligation to eliminate all policies and practices that continue to have a discriminatory effect and that are traceable to the prior de jure system.
Sex-Based Segregated Schools
United States v. Virginia is an important Supreme Court case involving sex discrimination in higher education. The case involved the Virginia Military Institute (VMI), an educational institution established by Virginia. VMI excluded females because of their gender. The Court held that the equal protection clause of the Fourteenth amendment applies to sex segregation, but applied a different standard than is applicable to race discrimination. The legal rule for determining the legality of publicly supported separate schools based on gender is a more differential standard than the legal rule that is applied to racially segregated schools. Even under the differential standard used in sex discrimination cases, the Supreme Court held that VMI's policy of excluding women because of their gender was unconstitutional under the equal protection clause.
See also: AFFIRMATIVE ACTION COMPLIANCE IN HIGHER EDUCATION; RACE, ETHNICITY, AND CULTURE, subentries on CULTURAL EXPECTATIONS AND STUDENT LEARNING, RACIAL AND ETHNIC MINORITY STUDENTS IN HIGHER EDUCATION; SINGLE-SEX INSTITUTIONS; SUPREME COURT OF THE UNITED STATES AND EDUCATION.
BROWN, S. CHRISTOPHER, II. 1999. The Quest to Define Collegiate Desegregation. Westport, CT: Bergin and Garvey.
FAIRFAX, LISA. 1999. "The Silent Resurrection of Plessy: The Supreme Court's Acquiescence in the Resegregation of America's Schools." Temple Political and Civil Rights Law Review 9:1–57.
KLUGER, RICHARD. 1976. Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. New York: Knopf.
WARE, LELAND B. 2001. "Setting the Stage for Brown: The Development and Implementation of the NAACP's School Desegregation Campaign, 1930–1950." Mercer Law Review 52:631–673.
WILLIAMS, JUAN. 1987. Eyes on the Prize: America's Civil Rights Years: 1954–1965. New York: Viking.
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