391 U.S. 430 (1968), argued 3 Apr. 1968, decided 27 May 1968 by vote of 9 to 0; Brennan for the Court. Characterized by the Court simply as a case about the appropriate scope of a school desegregation remedy under Brown v. Board of Education II (1955), Green was a watershed in the definition—or redefinition—of the substantive right enshrined in Brown I.
Virginia was one of four states whose racially segregated school systems were constitutionally challenged in the litigation collectively styled by the name of the lead case, Brown v. Board of Education I. For a decade after Brown II Virginia disingenuously handled compliance with Brown on a statewide basis by a State Pupil Assignment Law, which substantially impeded desegregation. Under threat of losing federal monies in 1965, the law was scrapped and the New Kent County school board adopted a “freedom-of-choice plan,” which essentially allowed students in the rural, residentially integrated district to choose which of two schools they wished to attend—the formerly all-black Watkins School or the formerly all-white New Kent School. After three years of the new plan, no whites had elected to attend Watkins and only 115 blacks attended New Kent; 85 percent of blacks in the system still attended Watkins. The plaintiff black school children argued that the “freedom-of-choice plan” in practice operated to perpetuate the racially dual school system formerly mandated by state law.
Writing for the Court, Justice William J. Brennan framed the decisive issue in the case as whether the “freedom-of-choice plan” complied with Brown II. In an opinion that purported to be carefully limited, Brennan noted that “[w]e do not hold that a ‘freedom-of-choice’ plan might of itself be held unconstitutional … but [only] that in desegregating a dual system a plan utilizing ‘freedom of choice’ is not an end in itself” (pp. 439–440). The appropriate end to the Court was a plan that “promise[d] realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools” (p. 442).
The Court's underlying rationale was that a variety of factors, not necessarily found as fact by the trial court in Green but identified in federal studies, made “freedom of choice” unlikely to work—fear of hostility or retaliation to those electing to change schools, undue influence by public officials and private parties, ancillary effects of poverty, and unequal facilities between schools. Because of such factors, the Court concluded that freedom of choice was likely to fail to accomplish what Brown II required, the disestablishment of a dual system.
Green is the most significant school case decided after Brown II. Under a narrow reading of both Brown opinions, formerly state-segregated school systems could discharge their constitutional obligations by removing legally imposed attendance assignments based on race. Indeed, for a brief period, the National Association for the Advancement of Colored People (NAACP), which had brought Brown and its precursors, urged its local affiliates after Brown II to request “freedom of choice plans.”
In the face of southern “massive resistance” to desegregation, and later of white flight first to private schools and then simply away from areas populated by black families, the NAACP changed its strategy to press for the type of relief sought, and eventually approved, in Green. The thrust of Brown was thus recast as one directed at the effects of dual systems instead of at their basis. The consequence was that compliance with Brown, at least in formerly state-segregated (de jure) systems, could soon only be demonstrated by schools with racial composition reflecting the school-age population. As white flight accelerated, only busing could achieve Green's objective. NAACP counsel conceded during oral argument in Green that the new remedy paradoxically required the states and the Court to sanction what Brown notionally condemned—racially based pupil assignments. On a less conspicuous level, Green also diverted the emphasis in school desegregation from equality of education opportunity to numerical congruity in school attendance.