V. Resisting School Segregation

A. The Warren Court Speaks

From 1954 to 1964, ten years in which “virtually nothing happened” relative to southern school desegregation, the Supreme Court decided three cases involving elementary and secondary school segregation. In its 1958 decision in Cooper v. Aaron, the Court, addressing the aforementioned obstructive actions of Arkansas Governor Faubus, declared that the constitutional rights recognized in Brown “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.”’ Rejecting the argument that state officials were not bound by and did not have to comply with Brown, the Court declared that “the federal judiciary is supreme in the exposition of the law of the Constitution” and that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States.”

Thereafter, Goss v. Board of Education upheld an equal protection challenge to the transfer provision of a formal desegregation plan. That provision permitted a student transferred to a desegregated school where she would be in the racial minority to return to the segregated school from which she transferred and where she was in the racial majority. In the Court's view, this provision “lends itself to perpetuation of segregation” and provided “a one-way ticket leading to but one destination, i.e., the majority race of the transferee and continued segregation.”

In Griffin v. County School Board, the Court held that a Virginia county seeking to perpetuate racial segregation violated the Constitution when it closed its public schools and opened private state- and county-assisted schools for white children. The Court stated: “The time for mere ‘deliberate speed’ has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in other parts of Virginia.”

In 1968, four years after the passage of the momentous Civil Rights Act of 1964, Green v. County School Board struck down a “freedom of choice” plan allowing students to select the public school they wished to attend. Adopted a decade after Brown I and II, the challenged plan “operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board.” The Court's “last easy school desegregation case,” Green emphasized that school boards were “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.” In another decision issued the same day as Green, Monroe v. Board of Commissioners, the Court held that a “free transfer” plan permitting student transfers to schools of their choice did not meet Green's affirmative duty requirement. “Only by dismantling the state-imposed dual system can that end be achieved.”

B. Richard M. Nixon, Candidate and President

At the time of the Court's consideration of and decisions in Green and Monroe, Richard M. Nixon was campaigning for and seeking election to the office of President. Nixon pledged that, if elected, he would appoint “law and order” Justices and “strict constitutionalists” to the Supreme Court--“men that interpret the law and don't try to make the law.” Pursuing the endorsement of South Carolina Senator Strom Thurmond, Nixon informed Thurmond and southern Republican Party delegates that Nixon did not “think there [was] any court in this country, any judge in this country, either local or on the Supreme Court . . . qualified to be a local school district and to make the decisions as your local school board.” Nixon promised that he would not

go beyond . . . [Brown] and say it is the responsibility of the federal government, and the federal courts, to, in effect, act as local school districts in determining how we carry that out, and then to use the power of the federal treasury to withhold funds or give funds in order to carry it out.”

During his first term in office, President Nixon (whose administration “whistled white tunes”) nominated, and the U.S. Senate confirmed, four Supreme Court Justices: Chief Justice Warren Burger and Justices Harry Blackmun, Lewis F. Powell, and William H. Rehnquist. Blackmun was nominated after Nixon, seeking “to appoint conservative justices who would appeal to his Southern supporters . . . made two unsuccessful attempts to appoint a Southern appeals court judge.”

C. The Burger Court Speaks

In 1971, the aforementioned four Nixon appointees to the Court joined their colleagues in the unanimous Swann v. Charlotte-Mecklenburg Board of Education decision. There, the Court, in an opinion by Chief Justice Burger, held that the federal district courts' broad equitable powers and remedial discretion in cases involving de jure racial segregation in public schools included the limited use of mathematical ratios and racial balance requirements, “affirmative action in the form of remedial altering of attendance zones . . . to achieve truly nondiscriminatory assignments,” and ordering “bus transportation as one tool of school desegregation.”

Expressly recognizing the reality of the resistance to Brown I and II, Burger observed that an expansive scope of equitable authority was necessary given the “changes since 1954 in the structure and patterns of communities, the growth of student population, movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented.” Noting, further, that the racial composition of schools was affected by school location and capacity, site availability, financing, and other issues, Burger recognized that “[p]eople gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.”

In a significant part of his opinion, Chief Justice Burger cautioned that “[r]emedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary.” In his view, the plenary powers of local authorities were more expansive than and extended beyond a court's power of remediation:

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.

The Swann Court's language was clear and unambiguous: Even in the absence of a constitutional violation, school boards could voluntarily establish and pursue racial integration and could prescribe specific ratios of African-American and white students reflecting a school district's racial demographics. Such action by a school board, even if not required by the Constitution, was a permissible exercise of educational policy falling within the discretionary power not of the federal courts, but of school officials grappling with the ways and means of preparing students for life in a multiracial and multicultural society.