Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
For the next several years, the Court declined to interfere with the administration of its mandate, ruling only in those years on the efforts of Arkansas to block desegregation of schools in Little Rock.1 In the main, these years were taken up with enactment and administration of pupil placement laws
by which officials assigned each student individually to a school on the basis of formally nondiscriminatory criteria, and which required the exhaustion of state administrative remedies before each pupil seeking reassignment could bring individual litigation.2 The lower courts eventually began voiding these laws for discriminatory application, permitting class actions,3 and the Supreme Court voided the exhaustion of state remedies requirement.4 In the early 1960s, various state practices—school closings,5 minority transfer plans,6 zoning,7 and the like—were ruled impermissible, and the Court indicated that the time was running out for full implementation of the Brown mandate.8
About this time, freedom of choice
plans were promulgated under which each child in the school district could choose each year which school he wished to attend, and, subject to space limitations, he could attend that school. These were first approved by the lower courts as acceptable means to implement desegregation, subject to the reservation that they be fairly administered.9 Enactment of Title VI of the Civil Rights Act of 1964 and HEW enforcement in a manner as to require effective implementation of affirmative actions to desegregate10 led to a change of attitude in the lower courts and the Supreme Court. In Green v. School Board of New Kent County,11 the Court posited the principle that the only desegregation plan permissible is one which actually results in the abolition of the dual school, and charged school officials with an affirmative obligation to achieve it. School boards must present to the district courts a plan that promises realistically to work and promises realistically to work now,
in such a manner as to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.
12 Furthermore, as the Court and lower courts had by then made clear, school desegregation encompassed not only the abolition of dual attendance systems for students, but also the merging into one system of faculty,13 staff, and services, so that no school could be marked as either a black
or a white
school.14