391 U.S. 430 (1968), 695, Green v. County School Board of New Kent County

Docket NºNo. 695
Citation391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716
Party NameGreen v. County School Board of New Kent County
Case DateMay 27, 1968
CourtUnited States Supreme Court

Page 430

391 U.S. 430 (1968)

88 S.Ct. 1689, 20 L.Ed.2d 716



County School Board of New Kent County

No. 695

United States Supreme Court

May 27, 1968

Argued April 3, 1968




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.


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. 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. 438-439.

Page 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. 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. 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. 441-442.

382 F.2d 338, vacated in part and remanded.

BRENNAN, J., lead opinion

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 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, 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, 487 (Brown I). The respondent School Board continued the segregated operation of the system after the Brown

Page 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.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 [88 S.Ct. 1692] 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.2 Under that

Page 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 338,3 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 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.

[88 S.Ct. 1693] 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 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 436

Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with...

To continue reading

Request your trial