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Education Law
University of South Carolina School of Law
Black, Derek W.

Education Law and the Challenge of Inequality

Professor: Derek Black

Fall 2016

Structure and Hierarchy of Public Elementary and Secondary Education

Local School District


State constitution
State law

South Carolina Title 59- Education Law
Delegate authority to other people such as school districts

Federal Government

No specific authority for federal government to exercise authority over states
There are prohibitions
Congress gets involved by setting conditions on money for education
Federal law to education has increased dramatically due to:

The judicial recognition that constitutional rights extend to students as well as adults
Congress’s use of its spending power to entice states to voluntarily adopt federal education policies


Prohibiting Segregation and the Duty to Desegregate p. 18-34

Brown doesn’t overturn Plessy focuses on education
Prohibiting Racial Segregation

Brown I

Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. The white and black schools approached equality in terms of buildings, curriculum, qualifications, and teacher salaries.
Decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County.
Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?
Legal provision: Equal Protection

Despite the equalization of the schools by “objective” factors, intangible issues foster and maintain inequality.
Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority.
The long-held doctrine that separate facilities were permissible provided they were equal was rejected.
Separate but equal is inherently unequal in the context of public education. Stopped all state maintained racial segregation.

Social science

Creates an sense of inferiority
Criticized because there is no causal evidence and also the location

Why does the court cite dolls?

Just needed something to cite
Political climate and public opinion at this time was strained
Needed to convince America

There has to be unified front on this topic and they shouldn’t allow any room for dissent and another opinion
Brown I gives education an importance but doesn’t call it a fundamental right

Earlier versions- Wanted to decided education as a fundamental right

Does the court overturn Plessy?

Does not overturn it outside the scope of public education

What way is the history of school segregation relevant to the question?

What if the framers said it was fine?
Court says history matters, but we don’t know what they thought
Intent is always relevant, but words are ultimately controlling

Plaintiffs are different in this case because they’re asking for court to claim separate cannot be equal
Brown II

After Brown I, Court convened to issue the directives which would help to implement desegregation. Given the embedded nature of racial discrimination in public schools and the diverse circumstances under which it had been practiced, the Court requested further argument on the issue of relief.
What means should be used to implement the principles announced in Brown I?
Legal provision: Equal Protection
The Court held that the problems identified in Brown I required varied local solutions.

Conferred much responsibility on local school authorities and the courts which originally heard school segregation cases.
They were to implement the principles which the Supreme Court embraced in its first Brown decision.
Warren urged localities to act on the new principles promptly and to move toward full compliance with them “with all deliberate speed.”à open to interpretation, no actual standard given

The Court says that education is important but not necessarily a fundamental right. Racial inequality has a negative effect on minority children. Something must be done but the court doesn’t provide a clear procedure for remedying segregation. The court felt this was wrong and needed something to point at so social science was use despite the criticisms. Local control is very important in the fight against segregation.

The Affirmative Duty to Desegregate

14 years later, Congress steps in to help enforce Brown
Green v. County School Board of New Kent County 391 U.S. 430

Parents maintained that the board had not taken appropriate steps to desegregate the school because no white child had chosen to go the traditionally all black school and only 15 percent of the black children attended the traditionally all white school. Parents asserted that better options were available that would affirmatively cause integration. The court reversed the decision and held that the board’s freedom-of-choice plan could not be accepted as a sufficient step to effectuate a transition to a unitary system. In the three years that the plan had been in place during the appeals, virtually no integration had occurred. Rather than affirmatively dismantling the old dual system, the plan placed the burden of integration on the parents. The court ordered the board to adopt steps to convert promptly to a system without a segregated school. It was incumbent on the board to establish that any proposed plan promised meaningful and immediate progress toward disestablishing state-imposed segregation.

To convert from a dual system to unitary
School district had affirmative duty to take whatever steps might be necessary to convert to a unitary system which racial discrimination would be eliminated “root and branch.”

Key takeaway

Eliminate racial discrimination
Green factors to test race unitary

Student assignment-composition of student body

Extracurricular activities

Does the constitution require this type of actions? (mandate integration)

Leads to constitutional remedies
Fix previous better
Constitution does not mandate
But rights that are violated mandate this integration

Methods to Achieve Desegregation and the Judicial Authority to Compel Them

Swann v. Charlotte-Mecklenburg Board of Education

School districts undergoing desegregation under Brown I, II sought clarification of their duties and the scope of federal district courts’ power under

Keyes v. School District No. 1, Denver, Colorado

Petitioners proved that for nearly ten years since 1960 the Denver, Colorado school system implemented an unconstitutional policy of racial discrimination by operating a segregated school system. District Court held, that even though one part of the Denver system was guilty of segregation, it did not follow that the entire system was segregated as well.
Did the segregation in Denver involve all of the city’s schools and violate the equal protection clause of the Fourteenth Amendment?
Held that when part of a school system is found to be segregated, a “prima facie case of unlawful [systematic] segregative design” becomes apparent.

The school district involved assumes the burden of proving that it operated without “segregative intent” on a system-wide basis.
This case is significant because it represents one of the first instances in which the Court identified segregation in northern schools.

Two aspects of the Supreme Court’s rationale in Keyes expanded the ability of minority students to sue for more integrated schools.

First, the Court ruled that Latino and African American students may be placed in the same category in contrast to Anglo peers for the purposes of defining segregated schools. The Court explained that a school with a sizable population of both African American and Latino students is not integrated because there are students of different races. Rather, the Court indicated that these schools were still segregated, because both African American and Latino students suffered the same educational inequities as compared to white students in schools with predominantly white student populations. This, in the Court’s opinion, allowed minority students to demonstrate racial segregation more easily.
Second, the Court reasoned that if plaintiffs could prove that school officials intentionally implemented a policy of segregation in a substantial portion of a district, then lower courts could find that the system as a whole was essentially segregated into two racially divided districts.
Burden: plaintiffs had to establish intent to engage in racial segregation by providing evidence that school officials used policies that were known to likely cause segregation, such as manipulating neighborhood school policies, including student attendance zones and school site selection criteria. Once the plaintiffs demonstrated that there was segregation in a substantial portion of the district, the Court noted that the burden shifted to the board to prove that its actions regarding other segregated schools in the district were not racially motivated. Again, the Court reduced the burden for minority students to demonstrate that racial segregation was present.