The Radical Supreme Court Decision That America Forgot

In Green v. New Kent County, the Court saw school desegregation as a reparative process—likely the closest thing to reparations that the American judicial system has ever endorsed.

Students board buses.
Black students of South Boston High School climb into buses that will take them home after classes on May 30, 1975. (J. Walter Green / AP )

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. Green quietly 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.

But there was a reason the plans were a popular substitute for Jim Crow schools: In practice, this approach tended to preserve racially divided education. Decades of segregation had left schools racially coded—everyone in a given community knew which schools were “black” and which were “white,” even if the district no longer said so. “Freedom of choice” placed the onus of integration on individual students and parents, who had to opt to cross the color line themselves, facing social stigma, and, in the case of black parents and children, enduring severe discrimination.

Thus, when lawyers from the NAACP Legal Defense Fund filed the Green lawsuit in 1965, seeking to integrate the schools of eastern Virginia’s New Kent County, the county school board responded in an ordinary way. It implemented a “freedom of choice” plan. The rural county, with a population of about 5,300, had previously operated two separate elementary schools, one for white children and one for black children. As the school board intended, the segregation of those schools survived the new choice-based plan: Only 15 percent of black children enrolled in the formerly white school. Predictably, not a single white child enrolled in the formerly black school.

But the lawsuit continued, with the plaintiffs claiming that the county schools had not truly desegregated. A federal appellate court decided in the school district’s favor, declaring the new plan sufficient, but that decision was appealed to the Supreme Court.

At its core, the Supreme Court was being asked to choose between two competing ideas of why racial segregation was harmful.

The first idea, advanced by the county school board, was narrow. In this view, the evil of segregation was the way it relied on racial categories. The solution was simple: stop treating children differently on the basis of race. The “freedom of choice” plan was institutionally color-blind, with the same schools available to everyone regardless of skin color. Therefore, in this view, segregation had been corrected. Because the government was no longer classifying children by race, no further action was needed.

But in Green, the Supreme Court rejected this idea of segregation. Its unanimous opinion, authored by Justice William Brennan, adopted a second, broader view. Instead of focusing on the generic question of whether racially classifying students was harmful or unfair, the Green decision described the far-reaching, systemic nature of segregation as it existed in New Kent County’s schools. In the Supreme Court’s own words: “Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools, but to every facet of school operations—faculty, staff, transportation, extracurricular activities, and facilities.” The Court described this state of affairs as a “dual system” of schools, a phrase that would persist through decades of civil-rights law.

The Supreme Court was describing something more malevolent than mere racial classifications. It was recognizing the purpose of those classifications: to create a system of tiered education, akin to a caste hierarchy. And the Court was clear who was being targeted by that system: black students, who had been permanently relegated to an inferior role.

These “dual systems” were unconstitutional, the Green court said, and once they were identified, the government was required to fix what it had broken. This meant more than just getting rid of racial restrictions in schools. In the Supreme Court’s evocative language, it meant the harms of segregation had to be eliminated, “root and branch.” Justice required that any existing segregation produced by the dual system be “dismantled,” through the intentional creation of integrated schools.

School districts could select whatever means they thought would be most effective for desegregation, but they couldn’t stick with a method that didn’t work. In the case of New Kent County, the “freedom of choice” plan had proven clearly insufficient. In other places, the Supreme Court acknowledged, choice plans might prove effective, although “the general experience ... to date has been such as to indicate its ineffectiveness as a tool of desegregation.” Regardless, if choice failed, other approaches would need to be used, until integration was achieved and the harm caused by the dual system was scoured away.

An unusual aspect of the Green decision is its reliance on the history of American racial discrimination. Courts sometimes reduce the messy facts of cases to logical abstractions, which makes it easier to see idealized rules of law. Green did not do this. It identifies the narrow act of segregating a school as part of a larger system of white supremacy and racial caste. And it asserted that, to truly vindicate black Americans’ constitutional rights, the government must unmake that system, taking aggressive measures if necessary.

Broadly framed, Green envisioned school desegregation as a reparative process—probably the closest thing to reparations that our court system has ever endorsed.

The Green decision sent a jolt of electricity through the school-desegregation movement. Cases in the South that had stalled were restarted, as civil-rights lawyers carried the new decision into district courts to demand an end to “freedom of choice.”

But there was more. Judges were now looking for “dual systems” instead of explicitly segregated Jim Crow schools—and finding them everywhere, even in the North, where Jim Crow had never set foot. Large cities like Boston, Minneapolis, and Denver had used racially divided neighborhood boundaries, attendance zones, and social pressure to keep their schools segregated. Unexpectedly and suddenly, these places faced judicial desegregation orders.

In fact, it was in northern cities that Green’s mandate proved most challenging. Densely populated, their school segregation was often closely related to long-standing housing discrimination that kept ethnic groups separate. Courts responded by pushing city districts to redraw attendance boundaries, alter transfer policies, and, most controversially of all, to institute busing of students. All these changes inspired white resistance, but busing in particular became the focus of opposition. The most violent episodes of white resistance, like the infamous Boston busing riots, were limited, but they contributed to a political consensus that the Supreme Court’s integrative project was naive to racial realities.

In the end, though, Green stumbled the most because it was undercut by the Supreme Court itself. Although Green has never been overturned, in 1974, the Court decided 5–4 to sharply limit federal courts’ ability to desegregate most suburbs. Four of those five Justices had been appointed since Green by President Nixon. (There is evidence that Nixon had made some of his appointments—including future Chief Justice William Rehnquist—promise to oppose busing.) With the suburbs now available as an escape route from Green’s desegregation mandates, white flight intensified. As residents left, some cities, like Detroit, spiraled into a cycle of deterioration from which they have never fully recovered.

With so much conflict sprouting from Green, it’s not hard to see why modern narratives of school desegregation focus on the unambiguous heroics of Brown v. Board instead. Green’s legacy is painful. Many of its most visible consequences, like busing, remain politically controversial, and suggest that even in modern America schools can’t be integrated without conflict. Meanwhile, Green’s skepticism of “freedom of choice” is uncomfortable in an era where school choice is posed as the solution to many educational problems. It’s a reminder that choice can be used to preserve, as well as erode, existing patterns of discrimination.

But for civil-rights advocates, the Green decision is also cause for hope. It represents the way in which long-stalled battles can suddenly be won. The case forced many southern districts to pursue true integration after years of delay, and in mid-sized southern cities like Raleigh or Louisville, school integration has persisted for decades. Even busing continued in some districts until the 21st century.

In an era of conservative federal courts, civil-rights advocates sometimes argue that the judiciary is a weak vehicle for change, and that all real progress must pass through the court of public opinion. But 50 years ago, the Supreme Court was not afraid to lead the fight for reparative racial justice, nor afraid to say that the Constitution itself required school integration. The results were incomplete, it’s true—but Green is also still the law.