public school integration in the u.s. supreme court

8/12/2019 Public School Integration in the U.S. Supreme Court

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School Integration 1s 11

Remedies Fall 2014

Fordham Law School

Integration of SchoolsGeorge W. Conk

Adjunct Professor of Law & Senior Fellow, Stein Center for Law &Ethics

Room 409

[email protected]

212-636-7446

Torts Today: http://tortstoday.blogspot.com

Otherwise

Commentar ies on Law, Language & Poli tics

Blackstonetoday.blogspot.com

1
mailto:[email protected]:[email protected]


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Chattel Slaverythe original sin

No Person held to Service or Labour inone State, under the Laws thereof,escaping into another, shall, inConsequence of any Law or Regulationtherein, be discharged from such Serviceor Labour, but shall be delivered up onClaim of the Party to whom such Service

or Labour may be due. U.S. Const. Article 4, 3

School Integration 2


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AMENDMENT XIII.

"Neither slavery nor involuntary

servitude except as a punishment for

crime, whereof the party shall have

been duly convicted, shall exist

within the United States, nor any

place subject to their jurisdiction."



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AMENDMENT XIV.

All persons born or naturalized in theUnited States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State whereinthey reside.



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AMENDMENT XIV

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States,

nor shall any State deprive any

person of life, liberty, or property,

without due process of law, nor deny

to any person within its jurisdiction

the equal protection of the laws.



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Private discrimination permitted

Segregation allowed

American Apartheid



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Civil Rights Act of 1866

That there shall be no discrimination in

civil rights or immunities among the

inhabitants of any State or Territory of the

United States on account of race, color, or

previous condition of slavery; but the

inhabitants of every race and color,

without regard to any previous condition

of slavery or involuntary servitudeSchool Integration 7


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Civil Rights Act of 1866

shall have the same right to make andenforce contracts, to sue, be parties, andgive evidence, to inherit, purchase, lease,sell, hold, and convey real and personal

property, and to full and equal benefit ofall laws and proceedings for the securityof person and property, and shall be

subject to like punishment, pains, andpenalties, and to none other, any law,statute, ordinance, regulation, or custom

to the contrary notwithstanding.School Integration 8


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The Civil Rights Cases - 1883

Dismissing federal indictments under

Civil Rights Act of 1875 for refusing

admission to persons of color at the

Grand Opera House in New York



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The Civil Rights Cases - 1883

Until some State law has been passed, or

State actionhas been taken, adverse to

the rights of citizens sought to be

protected by the Fourteenth Amendment,

no legislation of the United States can

be called into activity: for the prohibitions

of the amendment are against State laws

and acts done under State authoritySchool Integration 10


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Plessy v. Ferguson (1896)

We cannot say that a law which authorizes

or even requires the separation of thetwo races in public conveyances isunreasonable, or more obnoxious to the

Fourteenth Amendment than the acts ofCongress requiring separate schools forcolored children in the District of

Columbia, the constitutionality of whichdoes not seem to have been questioned,or the corresponding acts of statelegislatures.



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Plessy v. Ferguson (1896)

The fallacyof the plaintiff's argument is inthe assumption that the enforcedseparation of the two races stamps the

colored race with a badge of inferiority. If this be so, it is not by reason of

anything found in the act, but solely

because the colored race chooses to putthat construction upon it.



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Private action to impede exercise of right to

freely labor not reached by the 13th

AmendmentU.S. v. Hodges (1905) SEC. 1977. All persons within the jurisdiction of

the United States shall have the same right in

every State and Territory to make and enforcecontracts, to sue, be parties, give evidence, andto the full and equal benefit of all laws andproceedings for the security of persons and

property as is enjoyed by white citizens, andshall be subject to like punishment, pains,penalties, taxes, licenses, and exactions of everykind, and to no other."



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Jim Crow

De Jure segregation of

schools



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An Act to Prohibit White and Colored

Persons from Attending the Same School.

Ky. Acts 1904

Sec. 1. That it shall be unlawful for any

person, corporation, or association of

persons to maintain or operate any

college, school, or institution where

persons of the white and negro races are

both received as pupils for instruction



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An Act to Prohibit White and Colored

Persons from Attending the Same School.

Ky. Acts 1904

Sec. 3. It shall be unlawful for any whiteperson to attend any school or institutionwhere negroes are received as pupils or

receive instruction, and it shall be unlawfulfor any negro or colored person to attendany school or institution where white

persons are received as pupils or receiveinstruction.



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Harlan, dissenting (1908)

Berea College v. Kentucky

The capacity to impart instruction to

others is given by the Almighty for

beneficent purposes; and its use may notbe forbidden or interfered with by

government,certainly not, unless such

instruction is, in its nature, harmful to the

public morals or imperils the public safety.School Integration 17


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Harlan, dissenting (1908)

Berea College v. Kentucky

But even if such right be not strictly aproperty right, it is, beyond question, partof one's liberty as guaranteed againsthostile state action by the Constitution ofthe United States.

This court has more than once said thatthe liberty guaranteed by the 14th

Amendment embraces the right of thecitizen to be free in the enjoyment of allhis faculties, and to be free to use them

in all lawful ways.School Integration 18


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De jure segregation of schools - 1954

Mandatory Delaware, Maryland, Virginia, WestVirginia, Georgia, North Carolina, SouthCarolina, Florida, Tennessee, Kentucky,

Alabama, Mississippi, Louisiana, Arkansas,Texas, Oklahoma, and Missouri, and theDistrict of Columbia

Permissive

Arizona, Kansas, New Mexico, Wyoming



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George E.C. Hayes, Thurgood Marshall, andJames Nabrit after the decision in Brown


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Brown v. Board (1954)

we cannot turn the clock back to 1868

when the Amendment was adopted, oreven to 1896 when Plessy v. Fergusonwas written. We must consider publiceducation in the light of its fulldevelopment and its present place in

American life throughout the Nation. Onlyin this way can it be determined if

segregation in public schools deprivesthese plaintiffs of the equal protection ofthe laws.



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Brown v. Board of Ed. I (1954)

Class actions against public school

authorities in Kansas, South Carolina,Virginia, Delaware

Under 28 USC 2281 & 42 USC 1983

Seeking declarations state segregationstatutes unconstitutional under 14th

Amendment

Ordering admissionof Negro students towhite public schools

By parents of children who will suffer

irreparable harm School Integration 22


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Brown v. Board of Education I

Does segregation of children in public

schools solely on the basis of race, even

though the physical facilities and other"tangible" factors may be equal, deprive

the children of the minority group of equal

educational opportunities?

We believe that it does.



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Irreparable harm

Segregation of white and colored

children in public schools has adetrimental effect upon the coloredchildren.

The policy of separating the races isusually interpreted as denoting theinferiority of the negro group.

A sense of inferiority affects themotivation of a child to learn.



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Irreparable harm

Segregationwith the sanction of law,therefore, has a tendency to retard

the educational and mental

development of negro children and to

deprive them of some of the benefits

they would receive in a racially

integrated school system.



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CJ Warren in Bolling v. Sharpe(1954)

Barring segregation in the District of Columbia

Given the holding in Brownregarding the

limits of state authority, it is unthinkable

that the same Constitution would impose a

lesser duty on the Federal Government.


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Brown II1955

Traditionally, equity has beencharacterized by a practical flexibility inshaping its remedies and by a facility for

adjusting and reconciling public andprivate needs.

These cases call for the exercise of these

traditional attributes of equity power.



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Brown IIall deliberate speed

The cases are remanded to the DistrictCourts to take such proceedings and enter

such orders and decrees as are

necessary and proper to admit to public

schools on a racially nondiscriminatory

basis with all deliberate speed the parties

to these cases.


Th B i di t 1955


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The Briggs dictum - 1955

The Constitutiondoes not requireintegration. It merely forbidsdiscrimination.

It does not forbid such segregation asoccurs as the result of voluntary action.

It merely forbids the use of governmentalpowerto enforce segregation.

The 14thAmendment is a limitation uponthe exercise of power by the state not alimitation upon the freedom of individuals.

Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955)School Integration 29

F R C P 65 Injunctions


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F.R.C.P. 65Injunctions

fairreasonable - adequate - in the public

interest Plaintiffs must show:

(1) unless the restraining order issues, they willsuffer irreparable harm;

(2) the hardship they will suffer absent the orderoutweighs any hardship the defendants would sufferif the order were to issue;

(3) they are likely to succeed on the merits of theirclaims;

(4) the issuance of the order will cause nosubstantial harm to the public; and

(5) they have no adequate remedy at law.

30Ch. 4 Injunctions


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FRCP 65 - d) CONTENTSANDSCOPEOF

EVERYINJUNCTIONANDRESTRAININGORDER.

( (1) Contents.Every order granting an

injunction and every restraining ordermust:

(A) state the reasons why it issued; (B) state its terms specifically; and

(C) describe in reasonable detailand not

by referring to the complaint or otherdocumentthe act or acts restrained orrequired.

SECv. Citigroup Global Markets -Remedies 31


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Little Rock 1957



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U.S.A. v. Jefferson County

The Situation as Judge

Wisdom found it in 1965



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The situation in 1965 The public school districts in the

consolidated cases now before this Courthad a school population of

155,782 school children

59,361 of whom were Negro

Under the existing court-approveddesegregation plans

110 Negro children,.019 per cent of theschool population, attend formerly "white"schools



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We recognize the problems

(1) Some would scuttle public

education rather than send their

children to schools with Negro

children

(2) White flight -reinforces urbanneighborhood school patterns.

3) Private schools, aided by state grants,

have mushroomedSchool Integration 35


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We recognize the problems

(3) Many white teachers prefer not toteach in integrated public schools.

(4) Many Negro children prefer tofinish school where they started.These children will probably have tosettle for unskilled occupations.

(5) Gap between white and Negroscholastic achievements



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The Civil Rights Act of 1964

Title IV

Bars federal aid to schools thatdiscriminate

Offers federal aid to schools to carryout desegregation



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Federal aid conditioned on non-

discriminationCivil Rights Act of 1964

"No person in the United States shall,on the ground of race, color, ornational origin, be excluded from

participation in, be denied thebenefits of, or be subjected todiscrimination under any program or

activity receiving Federal financialassistance."

42 U. S. C. 2000d.



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The Civil Rights Act of 1964

(b) "Desegregation" means theassignment of students to publicschools and within such schools without

regard to their race, color, religion, ornational origin

But "desegregation" shall not mean the

assignment of students to public schoolsin order to overcome racial imbalance.


ff C ( th C


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Jefferson County (5thCir. en

banc1966) It is ORDERED, ADJUDGED and DECREED

that the defendants, their agents, officers,employees and successors and all those in

active concert and participation with them,be and they are permanently enjoinedfrom discriminating on the basis of race or

color in the operation of the schoolsystem.



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The Briggs dictum:

It is a settled constitutional principle that

the Fourteenth Amendment does not

require compulsory integration but only

proscribes segregation. It is the state

action segregation which violates the

equal protection clause.

Expressly overruled in Jefferson

Count School Integration 41

J ff C t 5th Ci it


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Jefferson County5thCircuit -

en banc 1967

[All] administering public schools

have have the affirmative duty under

the 14thAmendment to bring about

an integrated, unitary school system

in which there are no Negro schools

and no white schoolsjust schools.


J ff C t (5th Ci


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Jefferson County (5thCir. en

banc1966)

As set out more particularly in the body of

the decree, they shall take affirmative

action to disestablish all school

segregation and to eliminate the

effects of the dual school system



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De facto segregation

Left to other courts for otherdays



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HEW Guidelines (Jefferson en banc)

The court gave great weight to

the 1965 and 1966 HEW

Guidelines(which) establish

minimum standards clearly

applicable to disestablishing

state-sanctioned segregation.


J ff C t ( b 1966)


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Jefferson County (en banc 1966)

Repudiation of Briggs Dictum: De jure segregated schools must take

affirmative action to integrate schools Uniform decree on free choice

Conformity with HEW regulations andguidelines presumptively adequate

Judicial review of effectivenessSchool Integration 46


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From the panel decision - U.S. v. Jefferson

County, 372 F. 2d 836 (5

th

Cir. 1966)http://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-education

Judge Wisdom on howdesegregation had been

obstructed

http://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-educationhttp://openjurist.org/372/f2d/836/united-states-v-jefferson-county-board-of-education


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Obstacles to enforcement of

Browns mandate

The dead hand of the old past and theclosed fist of the recent past

- Little Rock Central High School -1957

- Ole MissRoss Barnett standing in theschool house door - 1961

- Alabamasegregation now,segregation forever George Wallace 1963

- Louisiana bundles of statutes aimed atdefeating desegregation.


Ob t l t j di i l


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Obstacles to judicial

enforcement of Brown

2) Even school authorities willing to

act have moved slowly because of

uncertainty as to the scope of their

duty to act affirmatively.


Obstacles to judicial enforcement of


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Brown

(a) a misplaced reliance on theBriggs dictum that the Constitution

"does not require integration

(b) a misunderstanding of the Brown

II mandate, desegregate with "all

deliberate speed


Ob l j di i l f f


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Brown

(c) a mistaken notion that transfers

under the Pupil Placement Laws

satisfy desegregation requirements.


Ob t l t j di i l f t f


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Brown

(2) Case by case development of the

law is a poor sort of medium for

reasonably prompt and uniform

desegregation.


Ob t l t j di i l f t f


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Browns mandate

Courts cannot give advisory opinions,

and the disciplined exercise of the

judicial function properly makes

courts reluctant to move forward in

an area of the law bordering the

periphery of the judicial domain.


Obstacles to judicial enforcement


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(3) The contempt power is ill-suited

to serve as the chief means of

enforcing desegregation.


Ob t l t j di i l f t


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(4) School desegregation plans are often

woefully inadequate; they rarely provide

necessary detailed instructions and

specific answers to administrative

problems.

Mostjudges do not have sufficient

competence -- they are not educators or

school administratorsSchool Integration 55


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5) Until 1964 the absence of

Congressional statutory recognition

of desegregation as the law of the

land


Why freedom of choice plans


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failed. U.S.C.R.C. 1967

"Freedom of choice plans have

tended to perpetuate racially

identifiable schools in the Southern

and border States




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failed. They require affirmative action by

both Negro and white parents andpupils before disestablishment [of

dual school systems) can beachieved.

"(a) Fear of retaliation and hostility

from the white community continueto deter many Negro families fromchoosing formerly all-white schools




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failed. "(b) In some areas of the South,

Negro families with childrenattending previously all-white

schools under free choice plans weretargets of violence, threats ofviolence and economic reprisal by

white persons and Negro childrenwere subjected to harassment bywhite classmates




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failed.

(c) In some areas of the South public

officials improperly influenced Negro

familiesto keep their children in

Negro schools and excluded Negro

children attending formerly all-white

schools from official functions




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failed. "(d) Poverty deters many Negro

families in the South from choosingformerly all-white schools.

Some parents are embarrassed to permittheir children to attend such schoolswithout suitable clothing.

Special fees are assessed for courseswhich are available only in the whiteschools




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failed.

"(e) Improvements in facilities and

equipment . . . have been instituted

in all-Negro schools in some school

districts in a manner that tends to

discourage Negroes from selecting

white schools."



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The Corrected Decree and theDissent

Integration, part II

Jefferson County


Louisiana v United States


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Louisiana v. United States,

380 U.S. 145, 154 (U.S. 1965)

We bear in mind that the court has

not merely the power but the duty to

render a decree which will so far as

possible eliminate the discriminatory

effects of the past as well as bar like

discrimination in the future.


"The time for mere 'deliberate speed'


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The time for mere deliberate speed

has run out"

The transition to a unitary, nonracial

system of public education was and

is the ultimate end to be brought

about.

Brown I. Green v. New Kent County[SCOTUS (1968)]



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Root and branch

School boards operating state-compelleddual systems were nevertheless clearlycharged with the affirmative duty to take

whatever steps might be necessary toconvert to a unitary system in which racialdiscrimination would be eliminated root

and branch. it was to this end thatBrown II commanded school boards tobend their efforts.


Integration and desegregation


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Integration and desegregation

Wisdom & Thornberry

We use the terms "integration" and"desegregation" of formerly segregatedpublic schools to mean the conversion of ade jure segregated dual system to aunitary, nonracial (nondiscriminatory)system-- lock, stock, and barrel: students,faculty, staff, facilities, programs, and

activities.


The corrected decree


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The corrected decree Speed of desegregation

Exercise of Choice Transfers

Services, facilities, activities and programs

School equalization (remedial programs) New Construction

Faculty & staff

Reports to the court

Explanatory letter


Judge Griffin Bells dissent


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Judge Griffin Bell s dissent

Separation of powers eroded

Personal liberty unreasonably restricted Majority opinions fail the tests of fairness

and clarity

Approval of HEW Guidelines violatesprocedural due process

The standard one that works is

unconstitutionally vague De Jure - Defacto distinction is unfair

Briggs dictum is settled lawSchool Integration 69

Judge Griffin Bells dissent


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Judge Griffin Bell s dissent

I am unable to agree with the decree or

the opinion as to: De facto and de jure segregation

The guidelines

The proposed decreeAttendance percentages, proportions and

freedom of choice

Enforced integration


Corrected decree


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Corrected decree

SPEED OF DESEGREGATION

Commencing with the 1967-68 schoolyear, in accordance with this decree, allgrades, including kindergarten

grades, shall be desegregated andpupils assigned to schools in thesegrades without regard to race or

color.


Corrected decree


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EXERCISE OF CHOICE

(a) Who May Exercise Choice. A choice of

schools may be exercised by a parent orother adult person serving as the student'sparent.

A student may exercise his own choice ifhe (1) is exercising a choice for the ninthor a higher grade, or (2) has reached the

age of fifteen at the time of the exerciseof choice.


Corrected decree


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Corrected decree

Choice period

The period for exercising choice shall

commence May 1, 1967 and end June 1,

1967, and in subsequent years shall

commence March 1 and end March 31

preceding the school year for which the

choice is to be exercised.



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Inferior schools

In schools heretofore maintained forNegro students, the defendants shall takeprompt steps necessary to providephysical facilities, equipment, courses of

instruction, and instructional materials ofquality equal to that provided in schoolspreviously maintained for white students.


Corrected decree


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Corrected decree

Choice period

No student or prospective student who

exercises his choice within the choice

period shall be given any preference

because of the time within the period

when such choice was exercised.


Corrected decree


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Corrected decree

Preference in Assignment

In assigning students to schools,

No preferences shall be given to anystudent for prior attendance at a school

and,

Except with the approval of court inextraordinary circumstances,

No choice shall be denied for any reasonother than overcrowding.


Corrected decree


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Corrected decree

Transfers for students

Any student shall have the right at

the beginning of a new term, to

transfer to any school from which he

was excluded or would otherwise be

excluded on account of his race or

color.


Corrected decree


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Services, Facilities, Activities, and

Programs No student shall be segregated or

discriminated against on account of raceor color in any service, facility, activity, orprogram (including transportation,athletics, or other extracurricular activity)that may be conducted or sponsored by

the school in which he is enrolled.


Corrected Decree


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Corrected Decree

Services, facilities, activities, and

programsAll school use or school-sponsored use of

athletic fields, meeting rooms, and all

other school related services, facilities,activities, and programs such ascommencement exercises and parent-teacher meetings which are open topersons other than enrolled students, shallbe open to all persons without regard torace or color


Inferior Schools


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Inferior Schools

In schools heretofore maintained for

Negro students, the defendants shall take

prompt steps necessary to provide

physical facilities, equipment, courses of

instruction, and instructional materials of

quality equal to that provided in schools

previously maintained for white students.


NEW CONSTRUCTION


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NEW CONSTRUCTION

The defendants, to the extent consistent

with the proper operation of the school

system as a whole, shall locate any new

school and substantially expand any

existing schools with the objective of

eradicating the vestiges of the dual

system.


F lt d t ff


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Faculty and staff

Teachers, principals, and staff membersshall be assigned to schools so that thefaculty and staff is not composed

exclusively of members of one race. Whereever possible, teachers shall be

assigned so that more than one teacher of

the minority race (white or Negro) shall beon a desegregated faculty


F l & ff


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Faculty & staff

Dismissals

A report containing any such proposeddismissals, and the reasons therefor, shall

be filed with the Clerk of the Court,serving copies upon opposing counsel,within five (5) days after such dismissal,

demotion, etc., as proposed.


G iffi B ll di t


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Griffin Bell - dissent

Sumptuary laws

Elizabethan laws regulating dress and food

Hence

Any law regulating customs deemedoffensive to the community


What liberty does Judge Bell


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What liberty does Judge Bell

have in mind? History records that sumptuary laws

have been largely unobservedbecause they failed to recognize or

were needlessly restrictive ofpersonal liberty.

Our experiments with sumptuary-like

laws are exemplified by the DredScott decision, Reconstruction, andthe prohibition laws. All failed.


Th t t lib t


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Threat to liberty The advance approval given to a

requirement of compelled integrationexceeds what is constitutionallypermissible under the Fourteenth

Amendment.

The (opinions) cast a long shadow overpersonal liberty as it embraces freedom of

association and a free society. They dolittle for the cause of education.


D J D f t


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De Jure - Defacto The unfairness which inheres in the

majority opinion stems from the newdoctrine which the original panelfashioned under the concept of classifying

segregation into two types: de juresegregation, called apartheid, for theseventeen southern and border states

formerly having legal segregation; and defacto segregation for the other states ofthe nation.


D J D f t


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De Jure - Defacto The original opinion requires affirmative

action on the part of the school authoritiesin the de jure systems to integrate theschools.

The neighborhood school systems of thenation with their de facto segregation areexcused.

The Constitution does not reach them.


Th id li


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The guidelines

A uniform decree within the limits ofminimum standards would aid schoolboards and the district courts but the

uniform decree entered in this case can befaulted because of its detail. This comesabout through the unbounded aim of the

court to track the HEW guidelines. What is the problem he sees?


The guidelines


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e gu de es

It must be remembered that decrees may

have to be enforced by the court and acourt should guard against being put inthe unfeasible position of having to hear

motions based on the alleged breach ofsome minor and insubstantial provision ofits decree.

It is also not clear to me that sufficientlatitude is left to the district courts toadjust such practical difficulties as may

i d th d t il f th d

public school integration in the u.s. supreme court

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