The Radical Supreme Court Decision That America Forgot
Americans like to imagine the civil-rights era as a single, sustained burst of progress, surging forth in 1954 with Brown v. Board of Education and building to a crescendo before terminating, somewhat hazily, in the late 1960s. But the real narrative of civil rights refuses to yield to this familiar arc.
Nothing illustrates this more than the strange stop-and-start of American school desegregation. The Brown decision dissolved Jim Crow in schools, and wrought real change, but contrary to popular belief, it did not signal the federal government’s intention to wage war on all school segregation. Much of the North remained completely unaffected. The true national push for integration would come 14 years later—after the death of Dr. King, and indeed, after the entire civil-rights movement had come and nearly gone. The critical moment came in a Supreme Court decision—one far less remembered than Brown.
The case, Green v. New Kent County, was decided on May 27th, 1968, 50 years ago this past Sunday. Green marked the beginning of what we now remember as federal school integration, setting up racial conflicts that persist today. But it also announced a profound change in the Supreme Court’s thinking on race. Greenquietly embraced a radical view: that the Constitution can sometimes require the government to repair the harms of historic racial injustice, even after it stops explicitly discriminating by race.
The backdrop for Green was the South’s gradual accommodation to the Brown v. Board decision. In Brown, the Supreme Court had declared that districts could no longer forbid black children from attending the same schools as white children. A period of defiance followed, but most districts eventually relented, at least to some small degree. By the late 1960s, southern school districts discovered it was easier to mitigate Brown’s effects than to defy it outright. In many places, a compromise emerged: Token integration of a few black students would be permitted, while large-scale segregation between the bulk of the black and white population was preserved.
By the late 1960s, about 90 percent of southern districts operated using something called a “freedom of choice” plan. Under this system, students were automatically re-enrolled in the same school every year, but had the option to change their enrollment if desired, which meant that a black child could enter a formerly all-white school. The hard racial barrier between schools was now permeable. This satisfied, at least in the most minimalistic sense, the requirements of Brown: No child was prevented from attending any school because of his or her race. ...