Green v. County School Board of New Kent County

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.

Held:


 * 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.


 * 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 that 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.

Samuel W. Tucker and Jack Greenberg argued the cause for petitioners. With them on the brief were James M. Nabrit III, Henry L. Marsh III, and Michael Meltsner.

Frederick T. Gray argued the cause for respondents. With him on the brief were Robert Y. Button, Attorney General of Virginia, Robert D. McIlwaine III, First Assistant Attorney General, and Walter E. Rogers.

Louis F. Claiborne argued the cause for the United States, as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Pollak, Lawrence G. Wallace, and Brian K. Landsberg.

Joseph B. Robison filed a brief for the American Jewish Congress, as amicus curiae, urging reversal.