Brown v. Board of Education and the Problem of Remedy
By Richard E. Levy, University of Kansas School of Law
The U.S. Supreme Courts decision in Brown v. Board of Education[1] is rightly celebrated for declaring that legally mandated racial segregation in public schools violates the Fourteenth Amendment. Although Brown focused only on schools, subsequent cases relied on Brown to invalidate racial segregation in other contexts,[2] thus dismantling the pernicious "separate but equal" doctrine of Plessy v. Ferguson[3] But declaring that legally mandated segregation is unconstitutional and eliminating racial segregation are two different things.
Indeed, a common theme of news accounts surrounding the 70th anniversary of the Brown decision is the stark reality that schools continue to be racially segregated throughout much of the United States.[4] A recent report issued by the Government Accountability Office concluded:
Schools remain divided along racial, ethnic, and economic lines throughout the U.S. — even as the K-12 public school student population grows more diverse. During the 2020-21 school year, more than a third of students (about 18.5 million) attended schools where 75% or more students were of a single race or ethnicity.[5]
Research suggests, moreover, that while school segregation decreased after Brown, it has been on the rise over the last three decades.[6]
School segregation is about more than the physical separation of students by race. In practice, minority schools tend to be underfunded and underperforming, so segregation in the schools translates into unequal educational opportunities for minority students.[7] Thus, just as the idea that segregated schools were "equal" prior to Brown was a fiction that rationalized the systematic denial of educational opportunities based on race, the end of legally mandated segregation should not blind us to the reality of ongoing racial inequalities in education.
At bottom, the persistence of segregation and unequal educational opportunity reveals a critical constraint on the
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courts' power to ensure compliance with constitutional principles — the problem of remedy. Courts do not have the magical ability to declare a constitutional principle and thereby make it so. The creation of a new constitutional reality, especially in the face of resistance, depends on the courts' ability to craft an effective remedy.[8] In Brown, concerns about the remedy for desegregation prompted the Court to hold the case for re-argument on the issue of remedy and then to endorse gradual desegregation under the "all deliberate speed" formulation.[9]
This edition of Constitutional Currents considers the factors that have impeded the desegregation of public schools in the wake of Brown. It discusses three critical developments that limited the effectiveness of constitutional remedies in achieving desegregation in practice. First, in the immediate aftermath of Brown, school districts and government officials resisted desegregation, often relying on the vagueness of the Court's remedial mandate to adopt plans that were designed to fail. Second, as lower courts began to issue more aggressive judicial desegregation orders, the limited scope of these orders prevented them from addressing some of the root causes of segregated schools. Third, after the Supreme Court determined that continued judicial supervision of school districts was untenable, the combination of neighborhood schools and segregated housing patterns has led to increased segregation in practice.
Brown and the Remedy for Racial Segregation
It is well documented that the Justices in Brown were acutely aware of the significance of their decision and the likelihood of massive resistance to judicially mandated desegregation.[10]Many of the Justices, for example, believed that it was essential to issue a unanimous decision in order to present a solid front in the face of likely resistance. This concern apparently drove the Court's decision to hold the case over for a year, purportedly because the Court needed briefing and argument on the history of the Fourteenth Amendment.[11]
Although the passing of Chief Justice Vinson removed the last holdout and paved the way for a unanimous decision in Brown, [12] the Justices were still concerned about resistance, and ordered a second reargument, this time focusing on the proper remedy. The Court explained that "[b]ecause these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity."[13] The prior argument, the Court continued, did not fully address these problems, which were naturally subordinate to the central question — the constitutionality of segregation. Accordingly, the Court restored the case to the docket and sought reargument "in order that we may have the full assistance of the parties in formulating decrees ... "[14]
The normal remedy for a constitutional violation is a judicial order to end the unconstitutional conduct. Thus, if legally mandated segregation is unconstitutional, we would ordinarily expect an order to put an end to the practice. The Court, however, apparently felt that ordering immediate desegregation would be too disruptive and engender too much resistance. Accordingly, in Brown II the Court remanded the case to lower courts to craft equitable remedies that accounted for local conditions and problems.[15] Further, the Court emphasized that, when applying equitable principles, lower courts must balance "the personal interest of the plaintiffs in admission to the public schools as soon as practicable on a nondiscriminatory basis" and "the elimination of a variety of obstacles" to desegregation against the "public interest in the elimination of such obstacles in a systematic and effective manner."[16]
While the Supreme Court stated that the defendant school districts must "make a prompt and reasonable compliance" with Brown I,[17] it also listed various considerations that might justify additional time, such as "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 maybe necessary in solving the foregoing problems."[18] Accordingly, the Court directed the lower courts to "enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."[19]
The phrase "all deliberate speed" is internally contradictory. "Deliberate" means "carefully weighed or considered,"[20] which is inconsistent with "speed." Thus, whatever the Court's expectations concerning this remedial language, in practice it all but invited school districts to resist desegregation, especially given the Court's identification of various considerations that districts could invoke to justify delay. To be sure, the involvement of the National Guard put an end to direct defiance and the Supreme Court rejected the premise that public opposition was a sufficient reason not to integrate schools.[21] But many school districts simply failed to act, adopted school desegregation plans that were designed to be ineffective, or took other steps to prevent desegregation in practice.
Finally, in Griffin v. County School Bd. of Prince Edward County,[[2]] the Court expressed dissatisfaction with the slow pace of desegregation. After recounting local and state officials' efforts to prevent integration of the schools, the Court lamented that" [t] here has been entirely too much deliberation and not enough speed in enforcing the
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constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children."[23] Even after Griffin, however, many lower courts tolerated dilatory tactics by school districts.
In Green v. County School Board, [24] for example, the school district in question had previously operated one school for black children and one school for white school children. After dragging its heels for over a decade, the school system finally adopted a "freedom of choice" plan to comply with its obligation to desegregate. The plan allowed each child to select the school of their choice. Some black children chose to attend the previously white school, but no white children chose to attend the previously black school. Thus, 85% of black children in the district attended an all-black school. Although the lower courts had upheld the plan, the Supreme Court reversed, remanding with the directive that "the Board must be required to formulate a new plan and ... fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools."[25]
The Doctrinal Limits of Judicial Remedies
After Green, lower courts began to issue sweeping remedial orders and to engage in direct supervision of school districts that failed to develop meaningful desegregation plans. Critically, given the prevalence of segregated housing patterns, converting to a racially neutral neighborhood schools policy will not produce integrated schools. Accordingly, lower courts at times ordered busing or other affirmative steps to achieve racial integration, and the Supreme Court upheld their authority to do so. Although these aggressive orders achieved some gains, they were often deeply unpopular and the doctrinal limits of Brown limited their effectiveness.
In Swann v. Charlotte-Mecklenburg...
