Respondent School Board maintains two schools, one on the east
side and one on the west side of New Kent County, Virginia. About
one-half of the county's population are Negroes, who reside
throughout the county since there is no residential segregation.
Although this Court held in
Brown v. Board of Education,
347 U. S. 483
(
Brown I), that Virginia's constitutional and statutory
provisions requiring racial segregation in schools were
unconstitutional, the 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
Board, in order to remain eligible for federal financial aid,
adopted a "freedom of choice" plan for desegregating the schools.
The plan permits students, except those entering the first and
eighth grades, to choose annually between the schools; those not
choosing are assigned to the school previously attended; first and
eighth graders must 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 has
chosen to attend the all-Negro school, and although 115 Negro
pupils enrolled in the formerly all-white school, 85% of the Negro
students in the system still attend the all-Negro school.
Held:
1. In 1955, this Court, in
Brown v. Board of Education,
349 U. S. 294
(
Brown II), ordered school boards operating dual school
systems, part "white" and part "Negro," to "effectuate a transition
to a racially nondiscriminatory school system," and it is in light
of that command that the effectiveness of the "freedom of choice"
plan to achieve that end is to be measured. Pp.
391 U. S.
435-438.
2. The burden is on a school board to provide a plan that
promises realistically to work now, and a plan that, at this late
date fails to provide meaningful assurance of prompt and effective
disestablishment of a dual system is intolerable. Pp.
391 U. S.
438-439.
Page 391 U. S. 431
3. A district Court's obligation is to assess the effectiveness
of the plan in light of the facts at hand and any alternatives
which may be feasible and more promising, and to retain
jurisdiction until it is clear that state-imposed segregation has
been completely removed. P.
391 U. S.
439.
4. Where a "freedom of choice" plan offers real promise of
achieving a unitary, nonracial system, there might be no objection
to allowing it to prove itself in operation, but where there are
reasonably available other ways, such as zoning, promising speedier
and more effective conversion to a unitary school system, "freedom
of choice" is not acceptable. Pp.
391 U. S.
439-441.
5. The New Kent "freedom of choice" plan is not acceptable; it
has not dismantled the dual system, but has operated simply to
burden students and their parents with a responsibility which
Brown II placed squarely on the School Board. Pp.
391 U. S.
441-442.
382 F.2d 338, vacated in part and remanded.
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
Page 391 U. S. 432
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, 349 U.
S. 294,
349 U. S.
300-301 (
Brown II).
Petitioners brought this action in March, 1965, seeking
injunctive relief against respondent's continued maintenance of an
alleged racially segregated school system. New Kent County is a
rural county in Eastern Virginia. About one-half of its population
of some 4,500 are Negroes. There is no residential segregation in
the county; persons of both races reside throughout. The school
system has only two schools, the New Kent school on the east side
of the county and the George W. Watkins school on the west side. In
a memorandum filed May 17, 1966, the District Court found that
the
"school system serves approximately 1,300 pupils, of which 740
are Negro and 550 are White. The School Board operates one white
combined elementary and high school [New Kent], and one Negro
combined elementary and high school [George W. Watkins]. There are
no attendance zones. Each school serves the entire County."
The record indicates that 21 school buses -- 11 serving the
Watkins school and 10 serving the New Kent school -- travel
overlapping routes throughout the county to transport pupils to and
from the two schools.
The segregated system was initially established and maintained
under the compulsion of Virginia constitutional and statutory
provisions mandating racial segregation in public education,
Va.Const., Art. IX, § 140 (1902); Va.Code § 22-221 (1950). These
provisions were held to violate the Federal Constitution in
Davis v. County School Board of Prince Edward County,
decided with
Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 487
(
Brown I). The respondent School Board continued the
segregated operation of the system after the
Brown
Page 391 U. S. 433
decisions, presumably on the authority of several statutes
enacted by Virginia in resistance to those decisions. Some of these
statutes were held to be unconstitutional on their face or as
applied. [
Footnote 1] One
statute, the Pupil Placement Act, Va.Code § 22-232.1
et
seq. (1964), not repealed until 1966, divested local boards of
authority to assign children to particular schools and placed that
authority in a State Pupil Placement Board. Under that Act,
children were each year automatically reassigned to the school
previously attended unless, upon their application, the State Board
assigned them to another school; students seeking enrollment for
the first time were also assigned at the discretion of the State
Board. To September 1964, no Negro pupil had applied for admission
to the New Kent school under this statute and no white pupil had
applied for admission to the Watkins school.
The School Board initially sought dismissal of this suit on the
ground that petitioners had failed to apply to the State Board for
assignment to New Kent school. However, on August 2, 1965, five
months after the suit was brought, respondent School Board, in
order to remain eligible for federal financial aid, adopted a
"freedom of choice" plan for desegregating the schools. [
Footnote 2] Under that
Page 391 U. S. 434
plan, each pupil, except those entering the first and eighth
grades, may annually choose between the New Kent and Watkins
schools and pupils not making a choice are assigned to the school
previously attended; first and eighth grade pupils must
affirmatively choose a school. After the plan was filed the
District Court denied petitioners' prayer for an injunction and
granted respondent leave to submit an amendment to the plan with
respect to employment and assignment of teachers and staff on a
racially nondiscriminatory basis. The amendment was duly filed and
on June 2, 1966, the District Court approved the "freedom of
choice" plan as so amended. The Court of Appeals for the Fourth
Circuit, en banc, 382 F.2d 338, [
Footnote 3] affirmed the District Court's approval of the
"freedom of choice" provisions of the plan but remanded the case to
the District Court for entry of an order regarding faculty
Page 391 U. S. 435
"which is much more specific and more comprehensive" and which
would incorporate in addition to a "minimal, objective time table"
some of the faculty provisions of the decree entered by the Court
of Appeals for the Fifth Circuit in
United States v. Jefferson
County Board of Education, 372 F.2d 836,
aff'd en
banc, 380 F.2d 385 (1967). Judges Sobeloff and Winter
concurred with the remand on the teacher issue but otherwise
disagreed, expressing the view
"that the District Court should be directed . . . also to set up
procedures for periodically evaluating the effectiveness of the
[Board's] 'freedom of choice' [plan] in the elimination of other
features of a segregated school system."
Bowman v. County School Board of Charles City County,
382 F.2d 326, at 330. We granted certiorari, 389 U.S. 1003.
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." 349 U.S. at
349 U. S. 301.
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
Page 391 U. S. 436
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.
See, e.g., Cooper v. Aaron, 358 U. S.
1. 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. 349 U.S. at
349 U. S.
299-301. Thus, we recognized the task would necessarily
involve solution of "varied local school problems."
Id. at
349 U. S. 299.
In referring to the "personal interest of the plaintiffs in
admission to public schools as soon as practicable on a
nondiscriminatory basis," we also noted that "[t]o effectuate this
interest may call for elimination of a variety of obstacles in
making the transition. . . ."
Id. at
349 U. S. 300.
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."
Ibid. 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
Page 391 U. S. 437
defendants may propose to meet these problems and to effectuate
a transition to a racially nondiscriminatory school system."
Id. at
349 U. S.
300-301.
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
Page 391 U. S. 438
convert to a unitary system in which racial discrimination would
be eliminated root and branch.
See Cooper v. Aaron, supra,
at
358 U. S. 7;
Bradley v. School Board, 382 U. S. 103;
cf. Watson v. City of Memphis, 373 U.
S. 526. 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. [
Footnote 4]
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."
Watson v. City
of Memphis, supra, at
373 U. S. 529;
see Bradley v. School Board, supra;
Rogers v. Paul, 382 U. S. 198.
Moreover, a plan that, at this late date, fails to provide
meaningful assurance of prompt and effective disestablishment of a
dual system is also intolerable. "The time for mere
deliberate
speed' has run out," Griffin v. County School Board,
377 U. S. 218,
377 U. S. 234;
"the context in which we must interpret and apply this language [of
Brown II] to plans for desegregation has been
significantly altered."
Page 391 U. S. 439
Goss v. Board of Education, 373 U.
S. 683,
373 U. S. 689.
See Calhoun v. Latimer, 377 U. S. 263. 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. The matter must be assessed in light of the
circumstances present and the options available in each instance.
It is incumbent upon the school board to establish that its
proposed plan promises meaningful and immediate progress toward
disestablishing state-imposed segregation. It is incumbent upon the
district court to weigh that claim in light of the facts at hand
and in light of any alternatives which may be shown as feasible and
more promising in their effectiveness. Where the court finds the
board to be acting in good faith and the proposed plan to have real
prospects for dismantling the state-imposed dual system "at the
earliest practicable date," then the plan may be said to provide
effective relief. Of course, the availability to the board of other
more promising courses of action may indicate a lack of good faith,
and, at the least, it places a heavy burden upon the board to
explain its preference for an apparently less effective method.
Moreover, whatever plan is adopted will require evaluation in
practice, and the court should retain jurisdiction until it is
clear that state-imposed segregation has been completely removed.
See No. 805,
Raney v. Board of Education, post at
391 U. S.
449.
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,
Page 391 U. S. 440
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.'"
Bowman v. County School Board, 382 F.2d 326, 333
(C.A.4th Cir.1967) (concurring opinion).
Accord, Kemp v.
Beasley, 389 F.2d 178 (C.A. 8th Cir.1968);
United Slates
v. Jefferson County Board of Education, supra. Although the
general experience under "freedom of choice" to date has been such
as to indicate its ineffectiveness as a tool of desegregation,
[
Footnote 5] there may well be
instances in which it can serve as an effective device. Where it
offers real promise of aiding a desegregation
Page 391 U. S. 441
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
Page 391 U. S. 442
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, [
Footnote 6]
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.
[
Footnote 1]
E.g., Griffin v. County School Board of Prince Edward
County, 377 U. S. 218;
Green v. School Board of City of Roanoke, 304 F.2d 118
(C.A.4th Cir.1962);
Adkins v. School Board of City of Newport
News, 148 F.
Supp. 430 (D.C.E.D.Va.),
aff'd, 246 F.2d 325 (C.A.4th
Cir.1957);
James v. Almond, 170 F.
Supp. 331 (D.C.E.D.Va.1959);
Harrison v. Day, 200 Va.
439, 106 S.E.2d 636 (1959).
[
Footnote 2]
Congress, concerned with the lack of progress in school
desegregation, included provisions in the Civil Rights Act of 1964
to deal with the problem through various agencies of the Federal
Government. 78 Stat. 246, 252, 266, 42 U.S.C. §§ 2000c
et
seq., 2000d
et seq., 2000h-2. In Title VI Congress
declared that
"No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance."
42 U.S.C. § 2000d. The Department of Health, Education, and
Welfare issued regulations covering racial discrimination in
federally aided school systems, as directed by 42 U.S.C. § 2000d-1,
and in a statement of policies, or "guidelines," the Department's
Office of Education established standards according to which school
systems in the process of desegregation can remain qualified for
federal funds. 45 CFR §§ 80.180.13, 181.1-181.76 (1967). "Freedom
of choice" plans are among those considered acceptable, so long as
in operation such a plan proves effective. 45 CFR § 181.54. The
regulations provide that a school system "subject to a final order
of a court of the United States for the desegregation of such
school . . . system" with which the system agrees to comply is
deemed to be in compliance with the statute and regulations. 45 CFR
§ 80.4(c).
See also 45 CFR § 181.6.
See generally
Dunn, Title VI, the Guidelines and School Desegregation in the
South, 53 Va.L.Rev. 42 (1967); Note, 55 Geo.L.J. 325 (1966);
Comment, 77 Yale L.J. 321 (1967).
[
Footnote 3]
This case was decided per curiam on the basis of the opinion in
Bowman v. County School Board of Charles City County, 382
F.2d 326, decided the same day. Certiorari has not been sought for
the
Bowman case itself.
[
Footnote 4]
"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."
Louisiana v. United States, 380 U.
S. 145,
380 U. S. 154.
Compare the remedies discussed in,
e.g., NLRB v.
Newport News Shipbuilding & Dry Dock Co., 308 U.
S. 241;
United States v. Crescent Amusement
Co., 323 U. S. 173;
Standard Oil Co. v. United States, 221 U. S.
1.
See also Griffin v. County School Board,
377 U. S. 218,
377 U. S.
232-234.
[
Footnote 5]
The views of the United States Commission on Civil Rights, which
we neither adopt nor refuse to adopt, are as follows:
"Freedom of choice plans, which have tended to perpetuate
racially identifiable schools in the Southern and border States,
require affirmative action by both Negro and white parents and
pupils before such disestablishment can be achieved. There are a
number of factors which have prevented such affirmative action by
substantial numbers of parents and pupils of both races: "
"(a) Fear of retaliation and hostility from the white community
continue to deter many Negro families from choosing formerly
all-white schools;"
"(b) During the past school year [1966-1967], as in the previous
year, in some areas of the South, Negro families with children
attending previously all-white schools under free choice plans were
targets of violence, threats of violence and economic reprisal by
white persons and Negro children were subjected to harassment by
white classmates notwithstanding conscientious efforts by many
teachers and principals to prevent such misconduct;"
"(c) During the past school year, in some areas of the South
public officials improperly influenced Negro families to keep their
children in Negro schools and excluded Negro children attending
formerly all-white schools from official functions;"
"(d) Poverty deters many Negro families in the South from
choosing formerly all-white schools. Some Negro parents are
embarrassed to permit their children to attend such schools without
suitable clothing. In some districts, special fees are assessed for
courses which are available only in the white schools;"
"(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."
Southern School Desegregation, 1966-1967, at 88 (1967).
See
id. at 45-69; Survey of School Desegregation in the Southern
and Border States 1965-1966, at 30-44, 51-52 (U.S. Comm'n on Civil
Rights 1966).
[
Footnote 6]
"In view of the situation found in New Kent County, where there
is no residential segregation, the elimination of the dual school
system and the establishment of a 'unitary, nonracial system' could
be readily achieved with a minimum of administrative difficulty by
means of geographic zoning -- simply by assigning students living
in the eastern half of the county to the New Kent School and those
living in the western half of the county to the Watkins School.
Although a geographical formula is not universally appropriate, it
is evident that, here, the Board, by separately busing Negro
children across the entire county to the 'Negro' school, and the
white children to the 'white' school, is deliberately maintaining a
segregated system which would vanish with nonracial geographic
zoning. The conditions in this county present a classical case for
this expedient."
Bowman v. County School Board, supra, n. 3, at 332
(concurring opinion). Petitioners have also suggested that the
Board could consolidate the two schools, one site (
e.g.,
Watkins) serving grades 1-7 and the other (
e.g., New Kent)
serving grades 12, this being the grade division respondent makes
between elementary and secondary levels. Petitioners contend this
would result in a more efficient system by eliminating costly
duplication in this relatively small district while at the same
time achieving immediate dismantling of the dual system.
These are two suggestions the District Court should take into
account upon remand, along with any other proposed alternatives and
in light of considerations respecting other aspects of the school
system such as the matter of faculty and staff desegregation
remanded to the court by the Court of Appeals.