The decision in Brown v. Board of Education was the crowning episode in a legal campaign that began in Missouri in 1938 and included battles in Texas and Oklahoma. What we often forget is that while Brown marked the culmination of one civil rights battle, it was only the beginning of another long legal process. Having ruled that the Fourteenth Amendment included a guarantee of equal treatment in the area of education, the Supreme Court next had to ensure that state efforts to comply were consistent with the objectives laid out in Brown.
This was no easy task. In the years immediately following Brown, school districts responded in various ways. Some, like those in Prince Edward County, Virginia, simply shut their doors rather than accept integration. Other districts introduced various programs to appease the Court. Some were evasive; others were constructed in good faith. But all in all, by the end of the 1960s, the Court had lost patience with the progress made toward integration and, in a series of decisions, it placed more precise and urgent demands on school districts.
The first of these decisions involved a "freedom of choice" program introduced in Virginia. Schools there offered students the freedom to choose annually the school they would attend. On its face, with its catchy label, the plan seemed a philosophically sound approach to achieving educational equality. But in 1968, in Green v. School Board of New Kent County, the Supreme Court held otherwise. Noting that the freedom to choose could easily result in the perpetuation of traditional attendance patterns, the Court ruled that district integration plans must promise to achieve the actual objective of integration. School integration could not be left to chance, the Court said, and districts must assume an "affirmative obligation" to bring about integrated schools.26
The following year, the Court ratcheted up the timetable for integrating America's schools by ruling that, with Brown now fifteen years in the past, "all deliberate speed" meant now (Alexander v. Holmes County Board of Education). In 1971, the Court laid out more precise instructions as to how school districts might go about meeting their now pressing legal obligations. In Swann v. Charlotte-Mecklenburg, the Court announced that the discovery of a racially imbalanced school would trigger close scrutiny by the courts, and the burden would lie with the district to prove that the racial imbalance was not the result of current or past practices. In addition, the Court told districts that to correct these conditions they should consider redrawing school boundaries and busing—that is, the transportation of students to schools in other parts of the district in order to bring about greater racial parity.
The combination of these cases sent a clear message that the Court would no longer tolerate a too deliberate approach to integration. And in subsequent years, the Court let northern school districts know that their policies would undergo the same close scrutiny facing southern schools. In the North, however, the challenge was somewhat more complex. School segregation was rarely the result of local or state law, nor was it the result of explicit district policy. More often it was due to officials' practice, rather than official policy—that is, racial imbalance was often the result of unofficial decisions made by district officials, often acting contrary to official district policy. In addition, racial imbalance was often a characteristic of only certain schools within a district. This all meant that it would be difficult to prove a system-wide discriminatory practice warranting district-wide judicial intervention. But in Keyes v. Denver (1973), the Court held that evidence of discriminatory action in one part of the district justified a conclusion of district-wide discriminatory practice. The burden would lie with the district to prove otherwise.
In subsequent decisions, the breadth within the Supreme Court's authority to propel change was further revealed. In Milliken v. Bradley, the Court held that districts could be compelled to establish programs aimed at correcting educational deficiencies caused by past discriminatory practices. In other words, even though a district's current practices might comply with the Court's standards, the court could force a district to set up remedial programs to close educational gaps resulting from past behaviors. In 1990, in Missouri v. Jenkins, the Court held that federal courts could even order local districts to increase taxes in order to fund these remedial programs.
Finally, in 1992, the Court suggested that it would remain invested in local policies until all vestiges of past discriminatory behavior were eliminated. In United States v. Fordice the Court held that even though the University of Mississippi currently maintained "race-neutral policies," vestiges of its former discriminatory practices remained. For example, entrance standards at the historically white institutions were higher than those of the historically black institutions—a policy that was "suspect because it originated as a means of preserving segregation." The Court also noted that the state maintained duplicate programs, also suspiciously reminiscent of the state's former "separate-but-equal" system. Until these remnants of the state's old segregated college system were eliminated, the Court warned, Mississippi had not met its obligations under the Fourteenth Amendment.27
All of this set the stage for the development of more ambitious and controversial plans to achieve school integration. Having been told that they must implement policies that achieved, not just made possible, integration, having been told that they were responsible for creating and funding programs aimed at redressing past discriminatory practices, and having been told that the courts would closely monitor their behavior until they were in full compliance with Brown, many districts adopted affirmative action programs aimed at achieving racially balanced schools.