This is the case in which the U.S. Supreme Court announced in 1954 that segregated schools were inherently unequal, and in 1955 required school districts to desegregate "with all deliberate speed." It is the most famous civil rights case in American history. But it also had a specific set of plaintiffs -- schoolchildren in Topeka, Kansas -- and a specific history in its own community. This summary focuses on that history, rather than the broader setting and the Supreme Court jurisprudence.
On February 28, 1951, a group of black parents and children residing in the Topeka, Kansas, school district filed, in the U.S. District Court for the District of Kansas, a complaint naming as defendants the district's school board and certain school administrators. The plaintiffs were represented by local NAACP cooperating attorney Charles Bledsoe and sought class action status for their case, which they filed citing what was then 8 U.S.C. § 43, part of the Civil Rights Act of 1870. Their complaint alleged that the defendants, acting pursuant to state statute, denied the plaintiff's equal protection rights under the Fourteenth Amendment by operating separate public schools for white and black children, denying black children the right to enroll in and attend the schools attended by similarly-situated white children. The plaintiffs alleged that the defendants' conduct denied, solely on the basis of "race and color," to the child plaintiffs educational advantages, opportunities and facilities equal to those provided to white children, and that the black children forced by state law to attend racially-segregated schools "do not and cannot" enjoy the educational benefits afforded to whites. The plaintiffs alleged that some black students had to travel two miles farther to attend an all-black school than if allowed to attend the nearest all-white school. The plaintiffs sought declaratory and injunctive relief, as well as attorneys' fees, and asked that the court convene a three judge panel, then required by 28 U.S.C. § 2281, to consider the constitutionality of the state statute.
On March 22, 1951, plaintiffs filed an amended complaint making the same basic allegations and seeking the same relief. It named as an intervening defendant the State of Kansas. The amended complaint was itself amended on May 29, 1951, when plaintiffs’ counsel amended a paragraph to specify that the education opportunities provided by the defendants to the plaintiff children were inferior to those provided to white children in numerous respects, including "physical facilities, curricula, teaching, resources, student personnel services, access, and all other educational factors, tangible and intangible…." Moreover, the amended paragraph alleged that, apart from all other factors, the racial segregation practiced by the defendants "in and of itself" constituted an inferiority in educational opportunity offered to blacks, when compared to that offered to whites.
The school board's June 7, 1951, answer denied the claimed violations of constitutional rights. It also sought to correct or clarify certain claims made in the complaint, asserting that the operation of separate schools only occurred in the district's elementary-level facilities, that the city had but a single district with multiple attendance territories, that it provided free transportation for black children to any of the four black elementary schools operated for them in the district while providing no transportation for white elementary school students, and that, on average, the distances traveled to schools by black and by white children were the same. The state's answer, filed on June 15, 1951, generally denied the plaintiffs' allegations, specifically denying that the state statute was unconstitutional (and added, as had the other defendants' answer, that the plaintiffs' complaint had mis-cited the state statute of which they complained, by citing one applicable to cities of the second class, whereas Topeka was a city of the first class). The state also asserted that the complaint failed to state a claim upon which relief could be granted. That claim must have been rejected in an unpublished ruling, for the case was tried that summer.
After a trial of approximately ten days, on August 3, 1951, the three-judge panel sitting as the district court issued its opinion upholding the state statute and denying the plaintiffs' claims for relief. The court briefly reviewed the issues of facilities, curricula, instruction, and travel, finding that comparable educational facilities and services were provided to students of both races. It concluded that in the maintenance and operation of the separate schools "there is no willful, intentional or material discrimination." Recognizing that prior Supreme Court precedent (including Plessy v. Ferguson, 163 U.S. 537 (1896)) allowing segregation in state-provided services seemed, to some degree, undercut by recent Supreme Court decisions, the district court adjudged that the prior cases, not having been overruled, controlled. Brown v. Board of Education, 96 F. Supp. 797 (D. Ks. 1951) (Circuit Judge Walter August Huxman). The plaintiffs appealed directly to the U.S. Supreme Court, as then permitted under 28 U.S.C. § 1253.
At the Supreme Court, the Kansas case was heard along with three other cases (from South Carolina, Virginia, and Delaware) challenging segregation in public education. These other cases, two of which had elementary and high school age plaintiffs and one with only high school age plaintiffs, all involved state constitutions and statutes that required segregation in public education. In contrast, the Kansas statute permitted, but did not require, cities above a certain population to maintain racially-separate school facilities. (Topeka’s school board had elected to maintain segregated elementary schools.) In the South Carolina and Virginia cases, the lower federal courts found the black students’ schools to have been inferior and the states were directed to equalize the facilities and services; however, the states’ segregation laws were upheld and the plaintiffs were not provided access to the white students’ schools during the mandated equalization programs. In the Delaware case, a state trial court awarded the plaintiffs an order requiring their immediate admission to the white students’ schools. The trial court cited the inferiority of the schools the state had provided to black students and accepted the view that segregation itself results in an inferior education. Delaware’s Supreme Court affirmed but intimated that, once equalization of the two sets of schools had been accomplished, the state might be able to obtain a modification of the decree.
On May 17, 1954, after twice having the parties and the United States, as amicus curiae, argue the case, the U.S. Supreme Court issued its unanimous opinion declaring that racially segregated schools were inherently unequal, and therefore deprived the plaintiffs of the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown v. Board of Education, 347 U.S. 483 (1954) (Earl Warren, Chief Justice). In the four cases at issue, the lower courts had found the separate schools’ “tangible” factors equal (or satisfactorily becoming so); accordingly, the Supreme Court focused on the “effect” of segregation itself on public education. In view of the importance of education as a state-provided function, the Court stated that once a state has undertaken to provide educational opportunity it must make the right available to all on equal terms. Chief Justice Warren quoted the Kansas district court’s observation that public school segregation has a detrimental effect which is greater when sanctioned by law, denoting black inferiority and affecting motivation to learn. He found this observation amply supported by modern psychological authority, citing several recent studies and reports. Recognizing the wide applicability of its decision and the variety of local conditions to which it must be applied, the Court requested the parties and the United States to again argue the case, specifically to address the formulation of remedial decrees. In addition to restoring the case to the docket for further argument, the Court also invited amicus curiae briefs from those states requiring or permitting segregation in public education.
(In something of a sidelight to this historic decision, years later an internal memorandum became available which revealed the thoughts of a then-law clerk to Supreme Court Justice Robert H. Jackson about the school desegregation cases. The law clerk, William H. Rehnquist, later became a member of the Court (and its Chief Justice) but, as a law clerk in the early 1950’s, he wrote that the desegregation cases’ plaintiffs were wrongly asking the Court to read its own sociological views and personal moral preferences into the Constitution. In his view, Plessy v. Ferguson was right and should be re-affirmed. As the unanimous decision reflects, Justice Jackson did not follow his law clerk’s advice.)
The Supreme Court’s next decision in the case occurred on May 31, 1955. In another unanimous opinion, again written by Chief Justice Warren, the Court remanded the cases to the trial courts for the crafting of appropriate decrees. The opinion observed that these courts were best suited to assess local conditions and the good faith efforts of local school officials to implement governing constitutional principles. The lower courts were reminded to consider the plaintiffs’ personal interests in admission to public schools “as soon as practicable” on a nondiscriminatory basis, as well as the public interest in eliminating obstacles to such relief in an “orderly and systematic” manner. The courts were directed to require the defendants to make a “prompt and reasonable start toward full compliance” with the earlier ruling. This imprecise timeframe for action was not appreciably honed by the Court’s directive that the lower courts, on remand, should “take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” (The Delaware case, having been the sole affirmance of the four appealed cases, was remanded to that state’s Supreme Court for proceedings it deemed necessary.) Brown v. Board of Education, 399 U.S. 294 (1955).
On remand in the Brown case, in Topeka, on August 2, 1955, the Kansas plaintiffs filed a motion in the district court for a hearing on the formulation of a decree. The hearing occurred on August 24, 1955, followed by issuance of a per curiam opinion by the three judge court on October 28, 1955. The court approved the plan the school board put in force for that school year. The plan’s central principle was that children would be required to attend school within the district of their residence, with rare exceptions, and that race or color would not be any part of any exception to the general rule. Although the court viewed as insufficient one aspect of the plan, allowing (for that year only) kindergarten children to opt to attend schools inside or out of their residence district, the court decided that the plan sufficiently reflected the good faith of school authorities in attempting to adhere to the Supreme Court’s rulings. The court also noted that at least one all-black school would, because of residence demographics, remain all-black. This result was acceptable, reasoned the court, because desegregation did not require intermingling but, instead, that children not be prevented from going to school together because of race or color. (This conceptualization of the desegregation obligation was later disapproved by the Supreme Court in Green v. School Board of New Kent County and Swann w. Charlotte/Mecklenberg.) The court retained jurisdiction over the case and regarded acceptance of the school board’s plan as an interim measure.
The docket is devoid of any subsequent activity of importance until 1979. At that point, represented by private counsel, a group of black parents and schoolchildren filed a motion in the case to intervene as plaintiffs. They also filed a motion asking the court to command compliance with the earlier ruling to desegregate Topeka’s schools. District Judge Richard Dean Rogers granted the motion to intervene. Brown v. Board of Education, 84 F.R.D. 383 (D. Kan. 1979). He noted that four separate cases had been filed during that decade seeking to eliminate alleged racial discrimination in Topeka’s schools and that, in at least two of them, the state and the school board’s successful positions had been that the plaintiffs in those cases should not be permitted to proceed and, instead, should file motions seeking relief in Brown v. Board of Education, since the court had expressly retained jurisdiction to enforce compliance with the Constitution. The intervening plaintiffs alleged (1) the school board had created attendance zones that perpetuate racial discrimination, (2) schools with predominately black enrollment had facilities, equipment, curricula, and instruction substantially inferior to that provided in schools with predominately white enrollment, (3) racial disparity existed in school personnel assignments, (4) the school board had adopted an open enrollment policy perpetuating school segregation, and (5) the board adopted a long range facilities plan which also perpetuated school segregation. Without resolving any of these claims, Judge Rogers made the procedural ruling that the movants could appropriately intervene as plaintiffs. He found it unpersuasive that passage of time had mooted the original plaintiffs’ interest in the case, because the case was a class action (even though modern procedures for certifying a class action did not exist when the case had begun) and the intervenors had appropriate interests in seeking compliance with the Supreme Court’s earlier orders.
Discovery and motion proceedings followed, as did a trial, which resulted in the district court’s order of April 9, 1987. Brown v. Board of Education, 671 F. Supp. 1290 (D. Kan. 1987). Reviewing the case’s history as well as other desegregation rulings, Judge Rogers observed that, in determining whether a unitary school system existed, he would assess whether characteristics of the dual system existing in 1954 either do not exist or, if they exist, whether they are not the result of past or present intentional segregative conduct of the defendants or their predecessors. He then reviewed the history of desegregation efforts in the Topeka schools, noting that some desegregation, at the high school level, preceded the 1951 filing of this case. The trial evidence included statistics which, according to the plaintiffs, demonstrated a lack of racial balance in the district’s schools, in the sense that many schools’ racial mix did not reflect the racial mix of the district. The judge, however, saw the statistics as a result of residential patterns, not as remnants of past discrimination nor of present intentionally discriminatory conduct. He added that the plaintiffs had not presented sufficient evidence for him to find that the residential patterns were the product of discriminatory conduct. Likewise, school transfer policies, attendance zone decisions, school space and site decisions, school closings and openings, school boundary locations, facilities quality, activities and curriculum, transportation, faculty and staff assignments, test scores, opportunities to take desegregative action, and other factors were reviewed and found racially neutral. Judge Rogers stated that the existence of some schools having a statistical predominance of one race was not the product of overt or covert intentionally segregative conduct. Thus, the new plaintiffs also could not prevail on their claim that the defendants violated Title VI of the Civil Rights Act of 1964, since that act prohibits only intentional discrimination in operation of schools receiving federal funds and the act’s implementing regulations prohibiting racially discriminatory effects had not been shown to have been violated. Judge Rogers also ruled that the Kansas governor was dismissed as a defendant and that no evidence established liability of the state’s school board. The public school system in Topeka was adjudged a unitary one. The plaintiffs’ claims for relief were denied and they were ordered to pay the defendants' costs.
With assistance from ACLU attorneys, plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit. In a lengthy opinion, the appellate court upheld, 2-1, limited aspects of the district court’s ruling but reversed the lower court’s main conclusions. Brown v. Board of Education, 892 F.2d 851 (10th Cir. 1989) (Circuit Judge Stephanie Kulp Seymour). In sum, Judge Seymour faulted the district court’s placing the burden of proving intentional discrimination on the plaintiffs, rather than according plaintiffs the presumption that existing racial disparities in the school system were causally related to past discriminatory conduct. Reviewing the evidence with the burden of proof properly assigned, the appellate court concluded that the defendants had failed in meeting their burden of proving that the effects of past intentional discrimination had dissipated. The lower court’s ruling on the alleged Title VI violation also was error, according to Judge Seymour, who affirmed the district court’s dismissal of the state’s governor from the case and the finding that the state’s recently-created school board had no liability.
The defendants sought review in the U.S. Supreme Court. In a brief order, Brown v. Board of Education, 503 U.S. 978 (1992), that court granted certiorari, vacated the Tenth Circuit’s judgment, and remanded the case for further proceedings in light of two recent Supreme Court decisions, Freeman v. Pitts, 503 U.S. 467 (1992), and Bd. of Educ. of Oklahoma City v. Dowell, 498 U.S. 237 (1991), each of which suggested that district courts should aim in school desegregation cases to relinquish jurisdiction when possible.
On remand, the appellate court reinstated its prior opinion in full, again citing the local school board’s failure of proof and its’ inaction rather than taking sufficient affirmative steps in the area of student and faculty/staff assignments to eliminate the vestiges of past discrimination. Judge Seymour, again writing for a 2-1 court, was of the view that the recent Supreme Court decisions changed nothing in the analysis. Brown v. Board of Education, 978 F.2d 585 (10th Cir. 1992). The Supreme Court declined review, so the case returned to the district court.
There, in a December 3, 1993, unpublished order, Judge Rogers stated that the issue before him was limited to the crafting of a remedial plan to eliminate the vestiges of de jure segregation in student and faculty/staff assignments. In his view, other aspects of the school system, such as educational performance, disciplinary outcomes, or classroom assignments were not part of the direct mandate from the Tenth Circuit. Discovery on remand was to be limited accordingly.
Also addressed on remand were the plaintiffs’ motions for recovery of their attorneys’ fees and litigation costs. The district court ruled that the fees would be calculated using local standards, rather than the higher rates prevailing in New York, where the ACLU attorneys were housed. Judge Rogers also ruled that volunteer paralegals’ time spent on the case would not result in reimbursement, nor would counsel’s travel time or secretarial and word processing costs. He decided, however, not to reduce the amount of recovery based on the fact that the plaintiffs were not fully successful. Brown v. Unified School District No. 501, 878 F. Supp. 1430 (D. Kan. 1995).
In 1999, the district court made its final ruling in the case. The ruling resulted from the motion of the defendant for a declaration of unitary status and order of dismissal. The plaintiffs did not oppose the motion. In ruling on the motion, Judge Rogers considered that the school board, after the most recent remand from the appellate court, had adopted and implemented a remedial plan with guidelines which prevented any school from being identified as a majority or minority school on the basis of the race of its faculty and staff. Likewise, the plan addressed student assignments at individual elementary, middle, and high schools in a way that, in recent years, kept minority and majority student populations within 15% of the minority and majority student figures for the district at large. The court also noted the defendant’s on-going multi-cultural education programs for students, faculty, and staff, and an announced commitment to diversity and intolerance of discrimination. Granting the motion for a declaration of unitary status for the school district, Judge Rogers ruled that the vestiges of past discrimination in the school district had been eliminated to the extent practicable; and defendant had demonstrated a good faith commitment to the law and the Constitution which presaged no future need for judicial intervention. He dismissed the case on July 27, 1999. Brown v. Unified School District No. 501, 56 F. Supp.2d 1212 (D. Kan. 1999).Mike Fagan - 05/08/2008