William Allan Kritsonis, PhD Law Series

1. Lester, Ellison, Austin
PRAIRIE VIEW A&M UNIVERSITY
PUBLIC SCHOOL LAW
ADMIN 5023
William Alan Kritsonis, PhD
Professor
IMPERMISSIBLE DISCRIMINATION
Submitted
by
Donna Lester, Tanisha Ellison and Carrie Austin
June 29, 2009

2. Lester, Ellison, Austin
IMPERMISSIBLE DISCRIMINATION
INTRODUCTION
State laws cannot dictate separate public schools for children based on race or ethnicity.
When states have done this in the past, students have been denied equal educational
opportunities because ultimately the separate educational facilities are not equal. The Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution prohibits
racial segregation.
This report focuses on racial segregation and children’s rights to attend integrated
schools. It shows that freedom of choice plans as a means of desegregated a community are
ineffective and in the case of New Kent County the freedom of choice plan violated the
constitution.
Case One
U.S. Supreme Court
GREEN v. COUNTY SCHOOL BOARD, 391 U.S. 430 (1968)
391 U.S. 430
GREEN ET AL. v. COUNTY SCHOOL BOARD OF NEW KENT COUNTY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT.
No. 695.
Argued April 3, 1968.
Decided May 27, 1968
LITIGANTS
Plaintiff-Petitioners: Charles C. Green, et al.
Defendant-Respondents: County School Board of New Kent County, Virginia, et al.
BACKGROUND
New Kent County is a rural county in Eastern Virginia. About one-half of its population of some
4,500 residents was black. There was no residential segregation in the county. The school system
had only two combined elementary and high schools, one for whites, one for blacks. The 21
school buses traveled overlapping routes throughout the county. The segregated system was
initially established and maintained under the state mandated racial segregation in public
education. The School Board continued the segregated operation of the system after the Brown
decisions, on the authority of several statutes enacted by Virginia in resistance to those decisions.

3. Lester, Ellison, Austin
Some of these statutes were held to be unconstitutional. One statute, the Pupil Placement Act, 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repealed until 1966, divested local boards of authority to assign children to particular schools and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 at the discretion of the State Board. White families almost uniformly chose the
white-identified school, and blacks, out of fear of violence, retaliation, or hostility, almost
uniformly chose the black-identified school. To September 1964, no pupil had applied for
admission to another school under this statute.
Segregated schooling at all levels was a fact of American life. The Supreme Court decision in
Plessy v. Ferguson (1896) paved the way for a half century of racial segregation by establishing
the "separate but equal doctrine" allowing states and school boards to provide separate
accommodations provided they were equal in all other respects. Beginning in the 1930s, the
National Association for the Advancement of Colored People (NAACP) embarked on a legal
strategy designed to challenge this doctrine. They began by bringing cases against segregated
universities, hoping to establish precedents in higher education that they could then use to
challenge the separate but equal doctrine in primary and secondary schools. These initial
measures were largely successful.
The NAACP's legal strategy came to fruition in the landmark Brown v. Board of Education
(1954) decision. In that case, the Supreme Court reversed Plessy v. Ferguson and declared that
classifications based solely on race violate the Fourteenth Amendment to the U.S. Constitution.
The decision promised a swift and sweeping end to segregation in the South and elsewhere, but
this momentum was slowed by a second Brown decision, known as Brown II, the following year.
That decision blunted the impact of the first by allowing states the opportunity to delay
implementation of desegregation. It was in this environment of implementation that the case of
Green v. County School Board played out.
FACTS
New Kent County in Virginia was divided nearly equally between black and white citizens.
However, the County School Board of New Kent County had long maintained a segregated
public school system. A school on one side of the county served only white students, while a
school on the other side of the county was composed entirely of black students. In order to
comply with a desegregation order, the board adopted a plan that allowed students every year to
choose which school they wanted to attend. A number of black pupils chose to attend the
district's all-white school. However, no white pupils chose to attend the district's all-black
school. A group of students and their parents challenged the plan, claiming it was not an
acceptable means of achieving a single non-racial school system.
The case first went before the U.S. Court of Appeals for the Fourth Circuit. The district court
approved the freedom of choice plan once the school board agreed to hire teachers on a non-
discriminatory basis. Green and the other petitioners then took their case to the U.S. court of
appeals. The court of appeals affirmed the district court's ruling on the issue of freedom of
choice, leaving the petitioners one last recourse, the U.S. Supreme Court.

4. Lester, Ellison, Austin
DECISION
On 27 May 1968, the Supreme Court issued its decision. All nine justices agreed to overturn the
judgment of the court of appeals with regard to the freedom of choice plan. In rendering its
decision, the Court held the plan to the standard mandated in Brown v. Board of Education that
school boards must "effectuate a transition to a racially nondiscriminatory school system."The
justices placed the burden on the school board to provide a desegregation plan that has a realistic
chance to produce immediate results. While it did not rule out the possible use of a freedom of
choice scheme to achieve desegregation, it did rule it out where better, faster, and more effective
means of achieving that end exist.
DICTA
The New Kent School Board's "freedom-of-choice" plan cannot be accepted as a sufficient step
to "effectuate a transition" to a unitary system. In three years of operation not a single white child
has chosen to attend Watkins school and although 115 Negro children enrolled in New Kent
school in 1967 . .. 85 percent of the Negro children in the system still attend the all-Negro
Watkins school. In other words, the school system remains a dual system. Rather than further the
dismantling of the dual system, the plan has operated simply to burden children and their parents
with a responsibility which Brown II placed squarely on the School Board. The Board must be
required to formulate a new plan and, in light of other courses which appear open to the Board,
such as zoning, fashion steps which promise realistically to convert promptly to a system without
a "white" school and a "Negro" school, but just schools.
IMPLICATIONS
The Supreme Court's decision in Green v. County School Board restated the Court's resolve to
end segregated schooling and established more specific parameters for allowable and effective
means to that end.
The Supreme Court's decision Green v. County School Board retained flexibility for states and
local school boards to craft their own desegregation plans, but reaffirmed the Court's willingness
to intervene if those plans did not provide substantial and swift progress in complying with the
edicts of Brown v. Board of Education.
While the Court did not rule that "freedom of choice" plans were always unconstitutional, it did
note that they tended to be ineffective at desegregating a school system, and held that in New
Kent County's case the freedom-of-choice plan violated the Constitution.