Green v. County School Board of New Kent County

Green v. County School Board of New Kent County, case in which the U.S. Supreme Court on May 27, 1968, ruled (9–0) that a “freedom-of-choice” provision in a Virginia school board’s desegregation plan was unacceptable because there were available alternatives that promised a quicker and more-effective conversion to a school system that was not racially segregated.

The case came more than 10 years after Brown v. Board of Education of Topeka (1954), in which the Supreme Court held that in public education the doctrine of “separate but equal” had no place. Segregated educational facilities were found to be inherently unequal. In Brown v. Board of Education of Topeka (II) (1955), the Supreme Court gave lower courts the authority to fashion remedies that promoted desegregation “with all deliberate speed.” The lower courts were tasked with settling individual complaints on a case-by-case basis and maintaining jurisdiction in disputes while school boards made efforts toward compliance with Brown.

Many states, however, fought desegregation. Virginia officials undertook a policy called “Massive Resistance” and enacted various antidesegregation statutes. In New Kent county, Virginia, the school board operated only two schools, one for white students and the other for black students. A year after the passage of the Civil Rights Act of 1964—which allowed for the withholding of federal funds to localities that maintained a segregated school system—a lawsuit was filed on behalf of Charles C. Green and other African American students in New Kent county. In response, the board adopted a desegregation plan based on freedom of choice, which many school boards had implemented to maintain segregation. New Kent county’s plan called for each student, except those entering first and eighth grades, to annually choose between the two schools. Students who failed to select a school were assigned to the last one they had attended. In addition, first and eighth graders were required to affirmatively select a school.

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In 1966 a federal district court approved the desegregation plan, after the school board had also revised its staffing policy. The Fourth Circuit Court of Appeals subsequently approved most of the plan, notably the freedom-of-choice provision, but it remanded the case over the staffing proposal, asking that it be “more specific and more comprehensive.”

The U.S. Supreme Court subsequently granted certiorari, and oral arguments were made on April 3, 1968. The court held that the school system in New Kent county, consisting of separate white and black schools, represented the segregation that Brown and Brown (II) found unconstitutional. The court pointed out that the county’s dual system extended “not just to the composition of student bodies at the two schools, but to every facet of school operations.” In evaluating a plan, the court identified six areas that had to be desegregated. Commonly known as the “Green factors,” they included facilities; student, faculty, and staff assignments; transportation; and extracurricular activites.

Further citing Brown (II), the Supreme Court stated that school boards were “clearly charged with the affirmative duty to take whatever steps might be necessary to convert” a racially discriminatory system to one that was nondiscriminatory and constitutional. The court further noted that delays to desegregation were “no longer tolerable.” Given that the New Kent county school board had waited 11 years after Brown to develop a desegregation plan, the court held that any proposed plan had to promise to realistically work and to realistically work in the present. According to the court, the proposed freedom-of-choice plan failed to meet this standard and instead provided no meaningful change. In the three years after the plan was implemented, no white students had attended the black school, and 85 percent of African American students were still at the black school. The court held that freedom-of-choice plans were unconstitutional when they failed to result in a racially nondiscriminatory, unitary school system. The court thus ordered the school board in New Kent county to formulate a new desegregation plan and to consider other efforts, such as zoning. The case was thus remanded for further proceedings.

Desegregation efforts subsequently increased across the country. The decision’s significance was noted in an exchange between Chief Justice Earl Warren, who had written the majority opinion in Brown, and William Brennan, author of the Green decision. In a note to Brennan, Warren wrote, “When this opinion is handed down, the traffic light will have changed from Brown to Green.”

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