Two Significant Cases in the Fight to Promote Educational Desegregation and Inclusion:
Green and Fisher II

In this third installment of our “Throwback Thursday” (#tbt) “Civil Rights, Equality, and Justice: Then & Now” series for Black History Month 2016, we take a look at two important cases in the fight to promote educational desegregation and inclusion.

First, we look back at LDF’s litigation of Green v. County School Board (1968), a case which successfully questioned the constitutionality of so-called “freedom-of-choice” plans, which were used to hinder school integration. Next, we will explore LDF’s work in Fisher v. University of Texas (Fisher II, 2015), which involves a second Supreme Court review of the constitutionality of the policies used by the University of Texas to ensure it admits a diverse student body. 

Then: Green v. County School Board (1968) 

Jack Greenberg
Jack Greenberg

Though Brown v. Board of Education (1954)—the paradigmatic school integration case—held that the “separate but equal” doctrine had no place in public education in America, many southern and border states were slow—intentionally so—to integrate their schools. A variety of dilatory tactics were employed to avoid compliance with Brown. For instance, when Virginia’s Edward County was ordered to integrate its schools, it instead chose to abandon its entire public school system, creating private academies that excluded African Americans.

Less flagrant, though perhaps more insidious, were freedom-of-choice plans, which were widespread throughout southern and border states. They purported to remedy public school segregation, but, in reality, tended to entrench and perpetuate segregation. These plans were ostensibly designed to provide students with an unrestricted opportunity to choose their schools. Yet, personal experience with prejudice and longstanding community animus against integration dissuaded most students from selecting schools not historically associated with their race. This reality deeply inhibited the establishment of unitary, non-racial school systems—Brown’s promise.

In 1968, Jack Greenberg—the Director-Counsel of LDF at the time—and James M. Nabrit, III, an LDF lawyer, brought before the U.S. Supreme Court Green v. County School Board, a case famous for challenging the constitutionality of the freedom-of-choice plan in place in New Kent County, Virginia. LDF argued that the county’s school board implemented the plan, despite knowing it was unlikely to produce racial integration at the county’s two public schools: New Kent and George W. Watkins. Each school’s distinct demographic profile amply demonstrated this. Four years after the plan’s implementation, New Kent’s student body was still primarily white, and George W. Watkin’s was still entirely African American. Moreover, the racial makeup of the faculty at both schools mirrored that of the students: New Kent had no African-American teachers, and George W. Watkins had only one white teacher.

James M. Nabrit, III
James M. Nabrit, III

LDF’s lawyers made a powerful presentation to the Court. Given that the county was not residentially segregated; that the administration of the free-of-choice plan was shown to be costly and time-consuming, adding to an already-overburdened school system; and that other methods, such as restructuring grade levels or geographic zoning, could readily and quickly achieve integration, LDF urged the Court to rule that New Kent County’s freedom-of-choice plan was unconstitutional. In pointed language, LDF’s brief stated that passively allowing segregation to persist on the basis of apparent choice was unacceptable and that “… school boards [must] employ affirmative action to “undo” the racial segregation they had previously created.”     

In a resounding 9-0 decision, the Court held that the freedom-of-choice plan in New Kent County resulted in exactly the segregation that Brown found unconstitutional, and established as precedent that a school system’s method for assigning students had to be a meaningful, genuine attempt at integration.

In a private note to Justice Brennan, Chief Justice Earl Warren famously wrote: “When this opinion is handed down, the traffic light will have changed from Brown to Green.”

Now: Fisher v. University of Texas (Fisher II, 2015)

In June 2003, the U.S. Supreme Court issued a landmark ruling in Grutter v. Bollinger, rejecting a constitutional challenge to the use of race in admissions to the University of Michigan Law School. In so doing, the Court emphasized that “the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”

As the result of this decision, many institutions of higher learning across the country continued to implement programs designed to further promote inclusion and ensure a diverse student body. The University of Texas (UT), Texas’ flagship public university, was one university that sought to promote diversity in its admissions policies.  

Scenes from the steps of the U.S. Supreme Court
Scenes from the steps of the U.S. Supreme Court

But, in 2013, a UT applicant, Abigail Fisher, brought a challenge to the constitutionality of UT’s diversity policies in Fisher v. University of Texas (Fisher I). In that case, LDF urged that universities should retain the ability to build diverse student bodies made up of applicants from different backgrounds who meet their high standards. When the Court issued its decision in Fisher I, it upheld the landmark decisions of Grutter v. Bollinger and Regents of the University of California v. Bakke, which broadly affirmed the educational importance of diversity, and remanded the case to the Fifth Circuit for further review consistent with those decisions’ requirement of strict scrutiny review.

However, the case was brought once again before the U.S. Supreme Court in 2015 in Fisher v. University of Texas (Fisher II). On December 9, 2015, the Supreme Court heard oral argument in Fisher II.

The admissions policy at issue in Fisher II has two components: UT admits all Texas residents who rank in the top ten percent of their high school class. For the remainder of the class, UT undertakes a holistic “whole-file” review of applications. This process allows the school to consider additional criteria, such as essays, leadership qualities, extracurricular activities, awards, work experience, community service, family responsibilities, socio-economic status, languages spoken in the home, and—as of 2005—race. It is this modest consideration of race, alongside a host of other factors that was, and is again, under review. In July 2014, finding the holistic review component of the admissions process a modest, but important complement to the “Top Ten” percent component of UT’s admissions program (in which UT automatically accepts the top ten percent of each Texas high school class), the Fifth Circuit found that UT’s program was indeed narrowly tailored to advance the compelling government interest in the educational benefits of diversity.

Scenes from the steps of the U.S. Supreme Court
Scenes from the steps of the U.S. Supreme Court

LDF has long played a key role in this litigation, filing an amicus brief before the U.S. Supreme Court in 2013 and twice presenting oral arguments in the U.S. Court of Appeals for the Fifth Circuit. Most recently, LDF filed a friend of the court brief on behalf of the Black Student Alliance (BSA) and the Black Ex-Student Alliance (BEST) in November 2015. The brief emphasized the continued importance of race-conscious admissions in admitting a diverse class and preparing UT students and America’s future leaders. The brief also highlighted the critical role of diversity in breaking down stereotypes and of the UT program to achieving that end. LDF’s latest amicus brief asserts that “[w]hen students encounter classmates from different backgrounds—within and across dimensions of race, socio-economic status, and beyond—and come to understand and respect each other as individuals, they are all better for it.” 

UT’s program also comes under scrutiny against a historical backdrop of exclusion of African-American students from UT, as well as the prohibition of consideration of race in admissions at UT. This history, combined with the need to improve the racial climate on campus, elevated the particular importance and educational benefits of promoting student diversity at UT and bolstered the case for UT’s eventual return to race-conscious admissions. Since 2004, UT has used the hybrid admissions plan in an effort to improve diversity on campus.

A broad and varied coalition joined LDF in support of UT in Fisher II, including: scores of Fortune 100 companies and leading American businesses; a group of retired military leaders; the U.S. Solicitor General; 18 states; dozens of Texas legislators; numerous universities, colleges, and educational associations; and more than 800 social scientists. This broad coalition also includes dozens of national civil rights organizations, including Asian Americans Advancing Justice, the Mexican American Legal Defense Fund, and Gay & Lesbian Advocates & Defenders. 

LDF, the Black student groups on whose behalf it filed its 2015 amicus brief, its coalition partners, universities across the country, and millions of college applicants and students currently await the U.S. Supreme Court’s decision in Fisher II.

“That the importance of diversity in education remains contested is deeply disappointing, considering the strongly enunciated and already-settled recognition of its benefits,” said Monique Lin-Luse, Assistant Counsel at LDF. “Racial diversity in higher education is critical to combating the pernicious effects of racial stereotypes, the negative impacts of racial isolation on K-12 students caused by residential segregation, and the likelihood that minority students will be regarded as racial tokens or spokespersons.”

To read LDF’s full brief, click here

Stay tuned for the final installment in the “Throwback Thursday” (#tbt) of our “Civil Rights, Equality, and Justice: Then & Now” series for Black History Month 2016, on Thursday, February 25. Next week, our topic will be economic justice.