Michigan Law Review

Volume 67 Issue 2

1968

The Warren Court and Desegregation

Robert L. Carter
Member of the New York Bar

Follow this and additional works at: https://repository.law.umich.edu/mlr

Part of the Civil Rights and Discrimination Commons, Jurisprudence Commons, Law and Race
Commons, and the Supreme Court of the United States Commons

Recommended Citation
Robert L. Carter, The Warren Court and Desegregation, 67 MICH. L. REV. 237 (1968).
Available at: https://repository.law.umich.edu/mlr/vol67/iss2/4

This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law
School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor
of University of Michigan Law School Scholarship Repository. For more information, please contact
[email protected].
 THE WARREN COURT AND DESEGREGATION
Robert L. Carter*

I.
Chief Justice ·warren assumed his post in October 1953,
W
HEN
the underpinnings of the "separate but equal" 1 concept had
become unmoored beyond restoration. Full-scale argument on the
validity of apartheid in public education was only weeks away, and
the portent of change in the constitutional doctrine governing
American race relations was unmistakable. Although the ground-
work had been carefully prepared2 for the Chief Justice's announce-
ment in Brown v. Board of Education3 that fundamental principles
forbade racial segregation in the nation's public schools, the decision,
when it was delivered on :May 17, 1954, was more than a break with
the past. In interpreting the fourteenth amendment as guaranteeing
and securing to Negroes equality in substance rather than in mere
form, the Brown decision was a revolutionary statement of race
relations law.
Brown was the culmination of a trend, evident as early as
Missouri ex rel. Gaines v. Canada,4 away from the arid and so-
phistical reading of the Civil War amendments marked by the
legalisms of Plessy v. Ferguson. 5 Instead, the Supreme Court in
the first half of this century had begun to address itself to the task
of formulating a pragmatic and realistic interpr..etation of what
those amendments demanded in respect to the Negro's civil and
political status. "Sophisticated as well as simpleminded" modes of
racial discrimination were understood to be within the Constitu-
tion's reach. 0 The fom:t.eenth. amendment's guaranty of equal educa-
tional opportunity ·was said to be open-ended; it insured material
equality; 7 it encompassed intangibles not subject to objective mea-
surement;8 and it forbade restrictions impairing and inhibiting a
• Member of the Xew York Bar. Former General Counsel, National Association
for the Advancement of Colored People. A.B. 1937, Lincoln University; LL.B. 1940,
Howard University; LL.:\I. 1941, Columbia University.-Ed.
I. Plessy v. Ferguson, 163 l".S. 537 (1896).
2. P. FREUND, THE Sl'PRDIE COT:RT OF THE UNITED STATES 172-73 (1961). Actually,
:\fcLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), had forecast what the
Court would decide in Brou•n.
3. 347 U.S. 483 (1954).
4. 305 U.S. 337 (1938).
5. 163 U.S. 537 (1896).
6. Lane v. Wilson, 307 U.S. 268, 275 (1939).
7. Plessy v. Ferguson, 163 u.S. 537 (1896).
8. Sweatt v. Painter, 339 U.S. 629 (1950).

[237]
238 1Uichigan Law Review [Vol. 67:237

black student's ability to study and exchange views with other

students.9
With the decision in Brown, enforced racial segregation in edu-
cation was put beyond the pale. More than that, the approach to
which the Warren Court was fully committed required an examina-
tion and evaluation of any act, practice, or device which was under-
taken with government sponsorship, in order to determine whether
in purpose or effect black students were thereby denied their consti-
tutional right to truly equal educational opportunity. Similarly, a
like test seemed to be applicable in all other areas of governmental
activity. Brown thus extended to its natural consequences could
mean that the fetters binding the Negro were at last being struck,
and that he would henceforth be able to stretch himself to his full
potential.
Decision in the school desegregation cases began the Warren
Court's long involvement in the development of race relations law.
Subsequent opinions soon underscored the universality, permanence,
and enduring nature of the newly announced constitutional doctrine.
Segregation was struck down in public parks, 10 in intrastate11 and
interstate12 commerce, at public golf courses13 and other recreational
facilities,1-1 in airports15 and interstate bus terminals, 16 in libraries,17
and in the facilities of public buildings18 and courtrooms.19 Unlaw-
ful discrimination was found in the listing of candidates for public
office by race on the ballot; 20 in the Southern custom of addressing
black witnesses by their first name; 21 and in making marriage22 and
~xual relations23 between blacks and whites a crime.
In its refusal to tolerate open attempts to evade24 or frustrate 21i
9. McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
10. Watson v. Memphis, 373 U.S. 526 (1963); New Orleans City Park lmprovement
Assn. v. Detiege, 358 U.S. 54 (1958) (memorandum decision).
ll. Gayle v. Browder, 352 U.S. 903 (1956) (memorandum decision).
12. Boynton v. Virginia, 364 U.S. 454 (1960) (application of Interstate Commerce
Act).
13. Holmes v. City of Atlanta, 350 U.S. 879 (1955) (memorandum decision).
14. Watson v. Memphis, 373 U.S. 526 (1963); Mayor 8: City Council of Baltimore
City v. Dawson, 350 U.S. 877 (1955) (memorandum decision).
15. Turner v. Memphis, 369 U.S. 762 (1962).
16. Thomas v. Mississippi, 380 U.S. 524 (1965); Bo}nton v. Virginia, 364 U.S. 903
(1956) (memorandum decision).
17. Brown v. Louisiana, 383 U.S. 131 (1966).
18. Burton v. Wilmington Parking Autholity, 365 U.S. 715 (1961).
19. Johnson v. Virginia, 373 U.S. 61 (1963).
20. Anderson v. Martin, 375 U.S. 399 (1964).
21. Hamilton v. Alabama, 376 U.S. 650 (1964).
22. Loving v. Virginia, 388 U.S. I (1967).
23. McLaughlin v. Florida, 379 U.S. 184 (1964).
24. Cooper v. Aaron, 358 U.S. I (1958).
25. Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218 (1964),
December 1968] Deseg;regation 239

compliance with Brown, the Warren Court made clear that the new
doctrine was a fixed and permanent aspect of its approach to con-
stitutional adjudication in the race relations field. In addition, a
broadened definition of state action, encompassing all situations in
which the state was significantly involved in supporting or en-
couraging discrimination, extended the reach of the fourteenth
amendment. 26 The Court ruled that a state is under no affirmative
obligation to enact antidiscrimination legislation, and that when
such laws are promulgated, they may be repealed; but the Court
added the precautionary caveat that if in the process of repeal the
state tips the political balance in favor of racial discrimination, it
violates the fourteenth amendment. 27
The Court also sought to strengthen and further the desegrega-
tion process by protecting and undergirding the peaceful self-help
activities of those individuals and·groups seeking to eliminate segre-
gation. The rationale for extending the constitutional guarantees of
freedom of association and expression to membership in civil rights
groups and their sponsorship of test litigation reveals the Warren
Court at its best in adapting the Constitution's safeguards to real-
life situations. Until the Civil Rights Act of 196428 empowered the
federal government to use its resources in furthering desegregation,
the only method available to secure compliance with Brown in the
face of resistance was affirmative action by individuals or groups.
The Supreme Court was sensitive to this problem, and when
Alabama sought to still concerted group agitation and activity for
desegregation by requiring public identification of all NAACP
members in the state, the Court realized that such enforced dis-
closure would expose the members to coercion, intimidation, re-
prisals, and harassment,.. Recognizing that this would impair, if not
destroy, concerted civil rights activity, the Court concluded that the
constitutional guaranty of freedom of association embraced and in-
cluded privacy in one's associational relationships, absent a counter-
vailing state interest of compelling dimensions.29 Subsequently, in
26. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
27. Reitman v. Mulkey, 387 U.S. 369 (1967). A variation on the Reitman formula
involving a referendum repealing an open housing ordinance and barring all such
future legislation except on referendum of the electorate is now pending before the
Supreme Court. Hunter v. Erickson, #63, Oct. Term 1968.
28. 42 u.s.c. §§ 2000 (1964).
29. NAACP v. Alabama, 357 U.S. 449 (1958); Louisiana v. NAACP, 366 U.S. 293
(1961); accord, Bates v. Little Rock, 361 U.S. 516 (1960). Shelton v. -Tucker, 364 U.S.
479 (1960), dealt with a more difficult aspect of the question than forced disclosure
of membership. An Arkansas statute, broadly requiring public school teachers to list
all organizational connections over a stated period of time as a prerequisite to em•
plo)ment, was held to be too unselective and sweeping. In Gibson v. Florida Legis-
240 Michigan Law Review [Vol. 67:237

striking down state efforts to make group sponsorship of civil rights

litigation unlawful, the Court correctly classified such court action
as a protected form of political expression for the black community80
-and indeed for many years it was the only effective method of
political expression available.
On the other hand, the Court's concern for keeping peaceful
protest ·activity alive and its pragmatic approach to decision-making
led to a rather bizarre development in the sit-in cases. While the
Court was determined to support the efforts of college students to
break the pattern of racial segregation in the South by organized
sit-in activities, it was not prepared to extend Shelly v. Kraemer3 1
in order to prohibit state enforcement of private discrimination in
places of public accommodation, or to break new ground by adopt-
ing some other approach to decision that would bar state use of its
breach of the peace or trespass la·ws to defeat this kind of civil rights
effort.32 Instead, it held to an ad hoc method of adjudication, render-
ing decisions good for one case and one case only.33 The Court came
lative Investigation Comm., 372 U.S. 539 (1963), Florida sought disclosure of the
names of all members of the NAACP in Miami to determine the extent of the orga-
nization's infiltration by Communists. The Court held that enforced disclosure could
be allowed only after a showing of a nexus between the organization about which
the membership inquiry was being made and subversion. For a more detailed discus•
sion of this development, see Carter, Association: Civil Liberties and the Civil Rights
Movement, in LEGAL ASPECTS OF THE CIVIL RIGHTS MOVEMENT 181 (1965). In addition
to aiding this form of self-help, the Court granted certiorari in NAACP v. Webb's
City, 375 U.S. 939 (1963), to review the validity of a state injunction barring peaceful
consumer picketing sponsored by a civil rights group to pressure store owners to
abandon their policy of segregation. The question was not decided, however, because
on respondent's suggestion of moot.ness, the judgment was vacated and remanded to
effectuate respondent's representation that the injunction would be set aside. 376 U.S.
1-SO (1964).
30. NAACP v. Button, 371 U.S. 415 (1963).
31. 334 U.S. l (1948).
32. In Bell v. Maryland, 378 U.S. 226 (1964), the six members of the Court who
were prepared to decide on a constitutional basis the validity of state trespass con-
victions of sit-in demonstrators for refusing to leave a restaurant on orders from
the owner were evenly divided. The three other members of the Court were not
prepared to face the issue, and thus the case was remanded to state coun for recon-
sideration in light of the newly enacted law barring discrimination in places of public
accommodations.
33. See, e.g., Garner v. Louisiana, 368 U.S. 157 (1961) (no evidentiary basis for
conviction for breach of peace, and conviction for criminal trespass could not be
sustained since not charged); Peterson v. City of Greenville, 373 U.S. 244 (196!1) (city
ordinance held to require restaurant discrimination, hence exclusion of Negroes was
unconstitutional state action requiring setting aside conviction for criminal trespass);
Lombard v. Louisiana, 373 U.S. 267 (1963) (statements of mayor and chief of police
construed as mandating continuation of the racial exclusion by restaurant owners and
unconstitutional state action thus involved); Robinson v. Florida, !178 U.S. 15!1 (1964)
(invalid state action embodying a state policy discouraging restaurant owners from
serving the two groups without discrimination found in state regulations i&Sued by
the state board of health requiring restaurant owners with both white and black
 December 1968] Desegregation 241

out on the right side in supporting and sustammg this form of

peaceful protest, but its reasoning was strained and tortured. Its
decisions kept the sit-in movement viable until enactment of the
Civil Rights Act of 1964, which reduced racial discrimination in
places of public accommodation to an issue of minor significance.34
During the past fifteen years, the Supreme Court has undoubt-
edly concerned itself more with the affirmative development of sub-
stantive constitutional doctrine upholding equal rights than at any
other time during its history. It has been criticized for its decisions
and for its activism, but the criticism is misplaced. The Court in
Brown, in requiring the elimination of enforced racial segregation
as an essential prerequisite to equal education, did no more than
the Plessy v. Ferguson Court had done in devising the separate-but-
equal standard as an appropriate constitutional yardstick. Both
Courts attempted to give what tl,e~· saw a:, effective and meaningful
import to the fourteenth amendmem\: g-,~aranty of equal protection
and, in so doing, both made national policy in the race relations
field. Plessy paid homage to the equal rights verbiage of the four-
teenth amendment while in fact legitimizing governmental subor-
dination of blacks to whites. The rhetoric of Brown, on the other
hand, sought to make the same grant of equality an ingredient
of real life in the Negro community.
The problem is that while the Warren Court's rhetoric is broad
and sweeping, its decisions have kept to a rather narrow path. It has
in the main addressed itself solely to the task of outlawing formal-
ized public discrimination-to the appearance rather than the sub-
stance of racism. The Court has not expanded or extended Brown.
It has not dealt with the question of de facto school segregation-an
issue which is as potentj~lly explosive today as was formal _segrega-
tion in 1954.35 Therefore, we do not know what equal education
employees to provide separate lavatories for each race and each sex); Griffin v. ~ary•
land, 378 U.S. 130 (1964) (special policeman employed by park was a deputy sheriff
and arrested demonstrators in his role as state official, unlawful state action thus
found). For full discussion of sit•in cases, see Paulson, The Sit-In Cases of 1961: "But
Answer Came There None," 1964 SUP. Cr. REv. 137.
34. See Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). Katzenbach
v. McClung, 379 U.S. 294 (1964), upheld the constitutionality of Title II of Civil Rights
Act of 1964, 42 U.S.C. § 2000:\ (1964) (barring discrimination in public accommodations).
In Hamm v. City of Rock Hill, 379 U.S. 306 (1964), the Court construed the federal
civil rights law barring discrimination in places of public accommodation as requiring
the abatement of all criminal prosecution under state law, both prior and subsequent
to tlle passage of the Act, growing out of efforts to secure unsegregated access to public
accommodation facilities.
35. See Bell v. School City of Gary, Indiana 213 F. Supp. 819 (N.D. Ind.), aff'd, 324
F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924 (1964) (holding that de facto school
242 Michigan Law Review [Vol; 67:237

means in the context of Northern-style school segregation.86 Although

the Court supported and protected the sit-in movement, it developed
no cutting principles of law which would bar states from lending
their weight, under the guise of enforcing criminal trespass laws, to
the support of private discrimination practiced by restaurant or
hotel owners.31
White supremacy, with or without formalized public discrimi-
nation, is the pervasive evil-the unyielding and persistent deterrent
to fulfillment of the aims of the thirteenth, fourteenth, and fifteenth
amendments. However, while the Warren Court did not go as far
as it could have in the development of the substantive constitutional
doctrine which Brown augured, what it did accomplish is of great
significance. The broad rhetoric is there to build upon in the future.
As stated earlier, the Court has attempted to deal forthrightly with
one aspect of the race r~lations -question-formalized public discrim-
ination. And here, except for the troublesome problem of school
segregation, it has done quite well. Moreover, the Court's persever-
ance has helped considerably in revealing the true dimensions of
the race problem which confronts the nation today. What is now
crystal clear is that solution of this problem will involve state and
segregation raised no constitutional question); Dowell v. School Bd., 244 F. Supp. 971
(W.D. Okla. 1965), afj'd, 375 F.2d 158 (10th Cir.), cert. denied, 387 U.S. 931 (1967),
(avoidance of de facto segregation constitutionally required). Balaban v. Rubin, 40
:'.\Iisc. 2d 249, 242 N.Y.S.2d 973 (Sup. Ct. 1963), afj'd, 14 N.Y.2d 193, 199 N.E.2d 375,
250 N.Y.5.2d 281, cert. denied, 379 U.S. 881 (1964) (local school board's deliberate effort
to eliminate racial imbalance constitutionally permissible). See also Booker v. Board
of Educ., 45 N.J. 161, 212 A.2d 1 (1965). An interesting phenomenon is Downs v.
Board of Educ., 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S. 914 (1965), and
Dowell v. School Bd., supra. These two cases involved similar situations and like
principles. In both cases transition from pre-Brown segregation to a unitary school
system which Brown required was said to be completed. In Downs, when the transition
resulted in a de facto situation which confined the black children to virtually the
~ame educational isolation that had existed before, the courts held that no consti-
tutional question was involved. In Dowell the trial court ruled that the transition
necessitated an avoidance of a substitution of de facto school segregation for pre-
Brown school segregation. The Supreme Court refused to review either holding,
clearly demonstrating that it is not yet prepared to face the question. See generally
Carter, De Facto School Segregation: An Examination of the Legal and Constitutio11al
Questions Presented, 16 W. RES. L. REv. 502 (1965); Fiss, Racial Imbalance in the
Public Schools: The Constitutional Concepts, 78 HARV. L. REv. 564 (1965); Peck &:
Cohen, The Social Context of School Segregation, 16 W. REs. L. REv. 475 (1965);
Wright, Public School Desegregation: Legal Remedies for De Facto School Segregation,
40 ~.Y.U. L. REv. 285 (1965).
36. For a most comprehensive analysis of that question, see Hobson v. Hansen, 269
F. Supp. 401 (D.D.C. 1967). See also Rousselot, Achieving Equal Educational oppor-
tunity for Negroes of the North and West: The Emerging Role for Private Consti-
tutional Litigation, 35 GEO. WASH. L. REv. 698 (1967).
37. The difficulty the ad hoc decision poses can be seen in comparing Edward~ v.
South Carolina, .3i2 U.S. 229 (1963), with Adderley v. Florida, 385 U.S. 39 (1966),
where, on virtually the same set of facts, the Court reached opposite results.
December 1968] Desegregation 243

federal efforts of the greatest magnitude. The elimination of formal-

ized public discrimination will not suffice.
Lately, the Court has seemed to show signs of_ wanting the exec-
utive and legislative branches of government to take over responsi-
bility for fulfilling the commitment which the nation made to the
black community in the Civil War amendments. It has made clear
that Congress, in implementing the objectives of the fourteenth
amendment, has power to prohibit private discrimination as well
as that supported by the state.38 Last term, instead of waiting for
the open housing provisions of the Civil Rights Act of 196839 to take
effect on January 1, 1969,40 the Court resurrected the Civil Rights
Act of 186641 as a viable federal law applicable to discrimination in
the public and private sale or rental of housing. 42 The Court noted
that racial discrimination which "herds men into ghettos and makes
their ability to buy property turn on the color of their skin . . . 1s
a relic of slavery.''43
II.
After declaring in Brown I that segregated education denied the
constitutional guaranty of equal protection, a year later in Brown II
the ·warren Court addressed itself to the question of what remedy
should be granted. 44 The formula adopted by the Court-requiring
a "good faith" start in the transformation from a dual to a unitary
school system, with compliance being accomplished with "all delib-
erate speed"-was a grave mistake. It has kept the Court mired in
the vexing problems of progress in school desegregation for the past
thirteen years. Although the Court denied that this formula was
intended to do more than allow time for necessary administrative
changes which transformation to a desegregated school system re-
quired, it is clear that· -ivhat the formula required was movement
toward compliance on terms that the white South could accept.
Until Brown II, constitutional rights had been defined as personal
and present. In the exercise of that ephemeral quality called judicial
statesmanship, the ·warren Court sacrificed individual and imme-
diate vindication of the newly discovered right to desegregated edu-
cation in favor of a mass solution. This was frequently reflected by
the Court's tendency to avoid individual solutions in favor of ap-
38. United States v. Guest, 383 U.S. 745 (1966).
39. 82 Stat. 73, tit. VIII.
40. Tit. VIII, § 803(a)(2).
41. 42 u.s.c. §§ 1981-82 (1964).
42. Jones v. Mayer Co., 392 U.S. 409 (1968).
43. 392 U.S. at 442-43.
44. 349 U.S. 294 (1955).
244 Michigan Law Review [Vol. 67:237

proving long-range desegregation plans that would presumably

benefit large groups of students in the future. 4G
The Court undoubtedly failed to realize the depth or nature of
the problem. It undertook to oversee the pace of desegregation and
apparently believed that its show of compassion and understanding
of the problem facing the white South would help develop a willing-
ness to comply. Instead, the "all deliberate speed" formula aroused
the hope that resistance to the constitutional imperative would suc-
ceed. As indicated above, the Court did condemn open resistance
with firm resolve; but since its concern was to secure "an initial
break in the long established pattern of excluding Negro children
from schools attended by white children, the principal focus was in
obtaining for these Negro children courageous enough to break with
tradition a place in the white school."46
In its anxiety to get the desegregation process moving at all costs,
the Court condoned the application of procedural requirements and
pupil placement laws which it knew were designed to delay or evade
substantial compliance with the principles enunciated in Brown I.
For eight years after its implementation decision, the Court refused
to review any case in which questions were raised concerning the
validity of pupil placement regulations or the appropriateness of
applying the doctrine of exhaustion of administrative remedies to
frustrate suits seeking to vindicate the right to a desegregated edu-
cation.47 Plans which called for the desegregation of only one grade
per year were left standing.48
45. In Hawkins v. Board of Control of Florida, 350 U.S. 413 (1956), the Court
made clear that its "all deliberate .speed" formula was applicable only to grade and
secondary school desegregation. The personal and present nature of the right to equal
education remained unimpaired at all other educational levels and thus required
immediate vindication .. More recently, in Watson v. Memphis, 373 U.S. 526 (1963),
involving segregation in a public park, it made the same point.
46. Green v. County School Bd., 391 U.S. 430, 435 (1968).
47. Covington v. Edwards, 264 F.2d 780 (4th Cir. 1959), cert. denied, 361 U.S. 840
(1959) (pupil placement law validated and pTOcedures established required to be fol-
lowed); Carson v. Warlick, 238 F.2d 724 (4th Cir. 1956), cert. denied, 353 U.S. 910
(1956) (exhaustion of administrative remedies); Hood v. Board of Trustees, 232 F.2d
626 (4th Cir. 1956), cert. denied, 352 U.S. 870 (1956) (exhaustion of administrative
remedies required); Shuttlesworth v. Birmingham Bd. of Educ., 162 F. Supp. 372 (N.D.
Ala. 1958), afj'd (on the limited ground on which the district court rested its decision),
358 U.S. 101 (1958); accord, Holt v. Raleigh City Bd. of Educ., 265 F.2d 95 (4th Cir.),
cert. denied, 361 U.S. 818 (1959) (requirement that parent and child follow procedures
established by pupil placement board sustained); DeFebio v. County Bd., 199 Va. 511,
100 S.E.2d 760 (1957), appeal dismissed and cert. denied, 357 U.S. 218 (1958).
48. Kelley v. Board of Educ., 270 F.2d 209 (6th Cir. 1959), cert. denied, 361 U.S.
924 (1959); Slade v. Board of Educ., 252 F.2d 29r (4th Cir. 1958), cert. denied, 357
U.S. 906 (1958) (a plan of desegregation spread over a shorter space of time). But su
Ennis v. Evans, 281 F.2d 385 (3d Cir.-1960), cert. denied, 364 U.S. 933 (1961) (state plan
calling for desegregation grade-by-grade over twelve-year span, disapproved and total
integration ordered by fall 1961); Evans v. Buchanan, 256 F.2d 688 (3d Cir. 1958),
December 1968] Desegregation 245

As time passed and no appreciable progress was made, the

Warren Court began to manifest impatience. In 1962, it announced
in Bailey v. Patterson 49 that no substantial question was involved as
to the invalidity of state laws requiring segregation; the issue, the
Court stated, had been resolved. The following year the Court ruled
that the doctrine requiring exhaustion of administrative remedies
before relief could be sought in federal court had no application to
questions of school desegregation. 60 In Griffin v. Prince Edward
County Board of Education, which was decided in 1964, the Court
stated that the time for mere deliberate speed had run out.51 And
a year later, in Bradley v. School Board of Richmond, 52 it stated that
"[d]elays in desegregating school systems are no longer tolerable.'' 53
In spite of these belated efforts, the Warren Court's formula has
actually accomplished very little school desegregation. By the 1963-
1964 school year, for example, the eleven states of the old Confed-
eracy had a mere 1.17 per cent of their black students attending
schools with white students. In 1964-1965, the percentage had risen
to 2.25 per cent because of the effect of the Civil Rights Act of
1964.5• For the 1965-1966 school year-as a result of guidelines de-
vised by the United States Department of Health, Education, and
·welfare-the percentage reached 6.01 per cent. 55 Fear of losing fed-
eral funds had become a motivating factor inducing school authori-
ties to efiectuate some small measure of desegregation. 56
The reason for the specific failure of the Court's formula is rea-
sonably clear. The ·warren Court had placed the primary responsi-
bility for making the transition from the oid standard to the new
one upon local public school officials. These people were most prone
to resent and resist the changes ordered by the Court, and to look
upon the newly enunciated constitutional doctrine as a personal
repudiation. l\foreover, the lower federal courts were given the elu-
sive standard of "good faith" by which to measure compliance. This
led the courts to require a showing of subjective evil intent on the
cert. denied, 358 U.S. 836 {1958) (state superintendent and state board of education
under orders to formulate a .plan of desegregation for entire state).
49. 369 U.S. 31 (1962).
50. McNeese v. Board of Educ., 373 U.S. 668 (1963).
51. 3i7 U.S. 216, 234.
52. 382 U.S. 103 (1965).
53. 382 U.S. at 105.
54. See United States v. JclT<•t-,;on County Bd. of Educ.. 372 F.2d 836, 903 (5th Cir.
1966); SOUTHERN Enuc. REP. St'R\. STATISI1CAL SUMMARY (15th ed. 1965). See also
Kurland, Equal Ed11catio11al Opf1t>rtu11ity: The Limits of Constitutional Jurisprudence
Undefined, 35 U. Cm. L. REV. 58!1, 594 (1968).
55. For discussion of effectiveness of the Department of Health, Education, and
Welfare guidelines in increasing the pace of desegregation, see Dunn, Title VI, The
Guid~lines in School Desegregation in the South, 53 VA. L. REV. 42 (1967).
56. See, e.g., Green v. County School Bd., 391 U.S. 430 (1968).
246 M.ichigan Law Review [Vol. 67:2!17

part of local officials as a prerequisite to granting relief from need-

less delay.
At present, stricter standards for compliance are in effect. In the
1965 decisions of Bradley 51 and Rogers v. Paul, 58 the Court appar-
ently concluded that a new yardstick had to be devised to assess
compliance efforts. This new approach is to evaluate the desegrega-
tion on the basis of its effectiveness--to determine whether the plans
gave "meaningful assurance of a prolll.pt and effective disestablish-
ment"59 of the biracial school system. Effective results in eliminating
segregation root and branch are now required, and desegregation
plans must hold out a realistic promise of success.
With the decision in Brown I the Court embarked upon a course
designed in the short run to transform the Southern biracial school
system into a unitary school system. in the long run, Brown I sig-
nalled the end of all public impediments, whatever their source,
which denied black children their right to equal education. In de-
ciding to oversee the pace of desegregation, which was what Brown
II entailed, the Warren Court took upon itself an unnecessary re-
sponsibility for the South's failure to respond. It would have fared
better in not departing from the usual standard-in ordering the
immediate vindication of the rights that it had declared to exist in
Brown I. Such a course probably would not have resulted in de-
segregation at a faster pace, but it would have kept the Court's image
from being tarnished by first yielding fruitlessly to expediency.

III.
Brown v. Board of Education fathered a social upheaval the
extent and consequences of which cannot even now be measured
with certainty. It marks a divide in American life. The holding that
the segregation of blacks in the nation's public schools is a denial
of the Constitution's command implies that all racial segregation
in American public life is invalid-that all racial discrimination
sponsored, supported, or encouraged by government is unconstitu-
tional. As a result of this seminal decision, blacks had the right to
use· the main, not the separate, waiting room; to choose any seat in
the bus; to relax in the public parks on the same terms as any other
member of the community. This and more became their birthright
under the Constitution.
Equal rights legislation could no longer be regarded as a gift
57. 382 U.S. 103.
58. 382 U.S. 198.
59. Green ~v~-CoU!lty School Bd., 391 U.S. 430, 435 (1968).
December 1968} Desegregation 247

benignly bestowed by an enlightened and liberal-minded electorate.

Antidiscrimination laws were no longer great milestones; rather,
they served merely as administrative machinery. useful for accom-
plishing what the fundamental law required. While such machinery
was, of course, vital and important, these statutes could now be
critically assessed not in respect to the "good intentions" which led
to their enactment, but rather in terms of the results achieved in
alleYiating the particular forms of discrimination they were sup-
posed to regulate.
Thus, the psychological dimensions of America's race relations
problem were completely recast. Blacks were no longer supplicants
seeking, pleading, begging to be treated as full-fledged members of
the human race; no longer were they appealing to morality, to con-
science, to white America's better instincts. They were entitled to
equal treatment as a right under the law; when such treatment was
denied, they were being deprived-in fact robbed--of what was
legally theirs. As a result, the Negro was propelled into a stance of
insistent militancy. Now he was demanding-fighting to secure and
possess what was rightfully his. The appeal to morality and to con-
science still was valid, of course, but in a nation that was wont to
describe itself as a society ruled by law, blacks had now perhaps the
country's most formidable claim to fulfillment of their age-old dream
of equal status--fulfillment of their desire to become full and equal
participants in the mainstream of American life.
Brown's indirect consequences, therefore, have been awesome. It
has completely altered the style, the spirit, and the stance of race
relations. Yet the pre-existing pattern of white superiority and black
subordination remains unchanged; indeed, it is now revealed as a
national rather than a. -regional phenomenon. Thus, Brown has
promised more than it could give, and therefore has contributed to
black alienation and bitterness, to a loss of confidence in white insti-
tutions, and to the growing racial polarization of our society. This
cannot in any true sense be said to be the responsibility of the
·warren Court. Few in the country, black or white, understood in
1954 that racial segregation was merely a symptom, not the disease;
that the real sickness is that our society in all of its manifestations
is geared to the maintenance of white superiority.
Having opened this Pandora's Box, the Court was left for a long
time to handle the problem alone. It is to its credit that the Warren
Court did net falter in its resolve_or turn away from its commitment
to cut away all government support for discrimination.
248 · Michigan Law Review

While I have reservations about what the Court has done or

failed to do, I am forced to recognize that even if the Court had
functioned as I suggest it should have, we would probably be no
nearer to the elimination of racism in this country than we are
today. For, whatever the Court does, our society is composed of a
series of insulated institutions and interests antithetical to the
Negro's best interest. Effective regulation and control of these insti-
tutions and interests must come not from the Supreme Court but
from the bodies politic.