Establishing a legal basis for segregated public facilities and services, Plessy v. Ferguson (1896) ushered in the era of de jure segregation in America. Subsequent to this decision, many states enacted laws which imposed racial segregation in educational settings. Schools became mere representations of this bifurcated system of laws. Despite the requirement that segregated schools be equal, LaMorte (1999) explained that schools for black students nearly always suffered from poor funding, crumbling buildings, and overcrowded classes – inconveniences not inflicted upon their white counterparts.

Despite opposition from many across the nation, the Court ruled that not only was racial segregation harmful, but, to separate black children from others of similar age and qualifications solely because of their race serves to generate within these children a sense of inferiority. The Court found that “separate educational facilities are inherently unequal” and that they violate the Constitution’s equal-protection guarantee. The Court asserted that the need for black children to see themselves in a positive reaffirming way was just as important as curriculum, facilities, and other resources. It was found that this dual standard provided an inherently unequal education for black and white children.

A number of strategies were used to evade and defy compliance with the mandate defined in “Brown I” (Orfield & Eaton, 1996). While the decision in Brown v. Board (1954) abolished laws requiring or permitting segregated schools, it did not outlaw de facto segregation. School desegregation was not uniformly implemented following the decision. Attempts to implement the premises of “Brown I” created extreme controversy in the educational field.

Although the decision in “Brown I” sought to offer relief to segregated school children, the Court in this decision set no standard or deadline for the desegregation of schools. Consequently, the Court a year later, in Brown v. Board of Education (1955) (“Brown II”), decided the manner in which relief was to be granted. Chief Justice Earl Warren declared that the desegregation process should proceed with “all deliberate speed” (Brown v. Board of Topeka Board of Education, 1955, p. 301).

Since the decision did not provide a clear timeline of when to eliminate segregation, the responsibility for desegregation and implementation had been left to local school boards and federal District Courts to achieve (Civil Rights Project, 2001). This “deliberate speed” was interpreted as noncompliance, resulting in further delay in carrying out school desegregation supervised by conservative Southern federal courts.

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 (p.438-439).

The Court adjudicated that a complete remedy must address five factors, including hiring and assignment of faculty and staff, equity of facilities, and nondiscrimination in transportation and extracurricular activities. As a result of this ruling, the Court refused to hear pending school desegregation cases until all the schools in the district were integrated immediately. Additionally, districts had to demonstrate that their desegregation plan would be implemented without further ado (Orfield & Eaton, 1996).

1. Racial Quotas: The constitutional command to desegregate schools does not mean that every school in the community must always reflect the racial composition of the system as a whole.

2. One-race schools: While the existence of a small number of one-race or virtually one-race schools does not, in itself, denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part.

3. Attendance zones: The remedial altering of attendance zones is not, as an interim corrective measure, beyond the remedial powers of a District Court. A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool; judicial steps going beyond contiguous zones should be examined in light of the objectives to be sought. No rigid rules can be laid down to govern conditions in different localities.

4. Transportation. The remedial technique of requiring bus transportation as a tool of school desegregation was within the court’s power to provide equitable relief. An objection to transportation of students may have validity when the time or distance of travel is so great as to risk either health of the children or significantly impinge on the educational process; limits on travel will vary with many factors, but probably with none more than the age of the students (Swann v. Charlotte-Mecklenburg Board of Education, 1971, p. 22-32).

By virtue of this decision, District Courts were given the power to gerrymander attendance zones and enforce bussing as a means to transport students to schools that were not in their neighborhoods. The Court allowed for schools to be lawfully racially isolated as long as the district could provide evidence that proved that the school racial composition was not a consequence of past or present inequitable practices.

Under Keyes v. Denver (1973) the Court held all school districts responsible for regulations that resulted in racial isolation in their school systems, including constructing schools in racially isolated neighborhoods and gerrymandering attendance zones (Orfield & Eaton, 1996). This decision, for the first time, also recognized the rights of Latinos to attend desegregated educational settings, in addition to that of Blacks. The Court held that the District Court erred in not considering Latinos in the same category as Blacks, when it referred to defining segregated school environments. The rationale offered was that “both groups suffer from the same educational inequities when compared with the treatment afforded Anglo students” (pp. 195-198).

This ruling was made in spite of findings of intentional discrimination by both state and local officials that intensified segregation in the metropolitan area (Orfield & Yun, 1999). The evidence provided showed that the Board of Education had not bused white students to black schools despite the considerable amount of space that was available in the inner-city schools at that time – there were 22,961 vacant seats in schools that were 90% or more black. The Board of Education’s practice in school construction was found to have a segregative effect. A great majority of the schools that were built were erected in either overwhelmingly all-black or all-white neighborhoods, so that the new schools were opened as predominately one-race schools. It was reported to the Court that of the 14 schools that opened between 1970 and 1971, 11 were over 90% black.

The Court held that plaintiffs must prove intent of state action that imposed segregation before remedies such as interdistrict bussing could be sanctioned. Justice Marshall in his dissent of this opinion said,

After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan, white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that “Brown I” was aimed at will not be cured, but will be perpetuated for the future (Milliken v. Bradley, 1974, p. 782).

The Court held that desegregation orders were temporary and that school boards could return to segregated neighborhood schools. The Court maintained that once a district achieved unitary status, the district would be emancipated from their liability to sustain desegregation. A school district attained “unitary status” by meeting the factors outlined in Green v. County School Board of New Kent County (1968). Additionally, once characterized as “unitary”, schools are no longer subject to court supervision. The Court held in this decision that any governmental action that reestablished racially segregated schools would be implicitly recognized as being not culpable.

That is to say, upon a finding that a school system subject to a court-supervised desegregation plan is in compliance is some but not all areas, the court, in appropriate cases, may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree. In particular, the District Court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations (Freeman v. Pitts, 1992, p. 474).

This ruling allowed District Courts to incrementally retreat from their supervisory functions in school districts’ desegregation policies. District Courts were only to retain involvement to those aspects of the desegregation order that had not yet been achieved. The factors which the courts were to rely on for discretion in ordering complete or partial relief from desegregation decrees included:

1. Whether there has been full and satisfactory compliance with the decree in those aspects of the school system where federal supervision is to be withdrawn;

2. Whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and

3. Whether the district has demonstrated to the public and to the parents and students of the once disfavored race its good-faith commitment to the whole of the court’s decree and to those statutes and constitutional provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance (Freeman v. Pitts, 1992, p. 491).

The Court adjudicated that the District Court abused its discretion in imposing the tax increase. In this decision, Chief Justice Rehnquist reminded the District Court that its ultimate goal was not to achieve racial balance but to restore state and local authorities to the control of the school system. He stated Although a District Court necessarily has discretion to fashion a remedy for a school district unconstitutionally segregated by law, such remedial power is not unlimited and may not be extended to purposes beyond the elimination of racial discrimination in pubic schools… (pp. 14-32). While the Court did find that increasing teacher salaries was essential for desegregation, it concluded that it was not necessarily a remedy.

Once the lingering effects of legally enforced segregation were eliminated, it would be perfectly legal for the district to operate schools that happened to be all black or all white. This drastically limited the reach of the “separate but equal” guarantee of Milliken v. Bradley II (1977).This predicated a large reduction in states’ supplemental desegregation programs. According to the Supreme Court, court imposed equalization remedies should be limited in time. Additionally, districts need not demonstrate that the support services produce measurable gains for the students subjected to a history of discrimination (Orfield & Yun, 1999). With this decision, local school districts with a history of treating some students unfairly were now trusted to treat them fairly with no federal regulation or state monitoring.

School desegregation cannot occur devoid of judicial action. The support for school desegregation is not sufficient in national or local political realms for elected officials to bring this ideal to fruition. Blacks and Latinos, the group of people who are most adversely affected by segregation, lack the political influence to achieve desegregation through the political process. This reality also existed when the Supreme Court Justices decided unanimously in the Brown v. Board of Education (1954) decision nearly 50 years ago. Data on school desegregation has proven that the courts are crucial in the full implementation of desegregation policies (Chemerinsky, 2002).