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Equal Protection Clause
(section)
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==''Brown'' and its consequences== {{See also|Brown v. Board of Education}} In 1954 the contextualization of the equal protection clause would change forever. The Supreme Court itself recognized the gravity of the Brown v Board decision acknowledging that a split decision would be a threat to the role of the Supreme Court and even to the country.<ref>{{Cite journal|last=Karlan|first=Pamela S.|title=What Can Brown® do for You?: Neutral Principles and the Struggle over the Equal Protection Clause|date=2009|journal=Duke Law Journal|volume=58|issue=6|pages=1049–1069|jstor=20684748}}</ref> When [[Earl Warren]] became Chief Justice in 1953, ''Brown'' had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful [[Republican Party (United States)|Republican]] politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional.<ref>For an exhaustive history of the ''Brown'' case from start to finish, see {{cite book |title=Simple Justice |last=Kluger |first=Richard |year=1977 |publisher=Vintage |location=New York |isbn=978-0-394-72255-9 |url=https://archive.org/details/simplejusticehis00klug_0 }}</ref> In that opinion, Warren wrote: {{quote|To separate [children in grade and high schools] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone ... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.}} Warren discouraged other justices, such as [[Robert H. Jackson]], from publishing any concurring opinion; Jackson's draft, which emerged much later (in 1988), included this statement: "Constitutions are easier amended than social customs, and even the North never fully conformed its racial practices to its professions".<ref>Shimsky, MaryJane. ''"Hesitating Between Two Worlds": The Civil Rights Odyssey of Robert H. Jackson'', p. 468 (ProQuest, 2007).</ref><ref>''I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases'', pp. 133–151 (Mark Tushnet, ed. Beacon Press, 2008).</ref> The Court set the case for re-argument on the question of how to implement the decision. In ''[[Brown II]]'', decided in 1954, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local [[board of education|school boards]] and to the [[United States district court|trial courts]] that had originally heard the cases. (''Brown'' was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed". [[File:Warren Court 1953.jpg|thumb|left|270px|The Court that decided ''Brown'']]Partly because of that enigmatic phrase, but mostly because of self-declared "[[massive resistance]]" in the South to the desegregation decision, [[racial integration|integration]] did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to ''Brown'' but to the [[Civil Rights Act of 1964]]. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was not until ''[[Green v. School Board of New Kent County]]'' (1968), in which Justice [[William J. Brennan]], writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant decision; freedom-of-choice plans had been very common responses to ''Brown''. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools. In response to ''Green'', many Southern districts replaced freedom-of-choice with geographically based schooling plans; because [[residential segregation]] was widespread, little integration was accomplished. In 1971, the Court in ''[[Swann v. Charlotte-Mecklenburg Board of Education]]'' approved [[Desegregation busing|busing]] as a remedy to segregation; three years later, though, in the case of ''[[Milliken v. Bradley]]'' (1974), it set aside a lower court order that had required the busing of students ''between'' [[school district|districts]], instead of merely ''within'' a district. ''Milliken'' basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s.<ref>For a comprehensive history of school desegregation from ''Brown'' through ''Milliken'' (one on which this article relies for its assertions), see Brest ''et al.'' (2000), pp. 768–794.</ref> The curtailment of busing in ''Milliken v. Bradley'' is one of several reasons that have been cited to explain why equalized educational opportunity in the United States has fallen short of completion. In the view of various liberal scholars, the election of [[Richard Nixon]] in 1968 meant that the executive branch was no longer behind the Court's constitutional commitments.<ref>For the history of the [[United States|American]] political branches' engagement with the Supreme Court's commitment to desegregation (and vice versa), see {{cite book |title=The Warren Court and American Politics |url=https://archive.org/details/warrencourtameri00powe |url-access=registration |last=Powe |first=Lucas A. Jr. |year=2001 |publisher=Belknap Press |location=Cambridge, MA |isbn=978-0-674-00683-6 }}, and {{cite book |title=Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws That Changed America |last=Kotz |first=Nick |year=2004 |publisher=Houghton Mifflin |location=Boston |isbn=978-0-618-08825-6 |url=https://archive.org/details/judgmentdayslynd00kotz }} For more on the debate summarized in the text, see, e.g., {{cite book |title=The Hollow Hope: Can Courts Bring About Social Change? |last=Rosenberg |first=Gerald N. |year=1993 |publisher=University of Chicago Press |location=Chicago |isbn=978-0-226-72703-5 |url-access=registration |url=https://archive.org/details/hollowhope00gera }}, and {{cite journal |last=Klarman |first=Michael J. |year=1994 |title=''Brown'', Racial Change, and the Civil Rights Movement |journal=Virginia Law Review |volume=80 |issue=1|pages=7–150 |doi=10.2307/1073592 |jstor= 1073592 }}</ref> Also, the Court itself decided in ''[[San Antonio Independent School District v. Rodriguez]]'' (1973) that the Equal Protection Clause allows—but does not require—a state to provide equal educational funding to all students within the state.<ref>Reynolds, Troy. "Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution," ''Kentucky Law Journal'', Vol. 80 (1991): 309, 310.</ref> Moreover, the Court's decision in ''[[Pierce v. Society of Sisters]]'' (1925) allowed families to opt out of public schools, despite "inequality in economic resources that made the option of private schools available to some and not to others", as [[Martha Minow]] has put it.<ref>[[Martha Minow|Minow, Martha]]. "Confronting the Seduction of Choice: Law, Education and American Pluralism", ''[[Yale Law Journal]]'', Vol. 120, p. 814, 819-820 (2011)(''Pierce'' "entrenched the pattern of a two-tiered system of schooling, which sanctions private opt-outs from publicly run schools").</ref> American public school systems, especially in large metropolitan areas, to a large extent are still ''[[de facto]]'' segregated. Whether due to ''Brown'', or due to Congressional action, or due to societal change, the percentage of black students attending majority-black school districts decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.<ref>For data and analysis, see {{cite web|url=http://www.civilrightsproject.harvard.edu/research/deseg/Schools_More_Separate.pdf |title=Schools More Separate |access-date=2008-07-16 |author=Orfield |date=July 2001 |work=Harvard University Civil Rights Project |archive-url=https://web.archive.org/web/20070628215819/http://www.civilrightsproject.harvard.edu/research/deseg/Schools_More_Separate.pdf |archive-date=2007-06-28 }}</ref> In ''[[Parents Involved in Community Schools v. Seattle School District No. 1]]'' (2007), the Court held that, if a school system became racially imbalanced due to social factors other than governmental racism, then the state is not as free to integrate schools as if the state had been at fault for the racial imbalance. This is especially evident in the charter school system where parents of students can pick which schools their children attend based on the amenities provided by that school and the needs of the child. It seems that race is a factor in the choice of charter school.<ref>{{cite journal|last=Jacobs|first=Nicholas|title=Racial, Economic, and Linguistic Segregation: Analyzing Market Supports in the District of Columbia's Public Charter Schools.|journal=Education and Urban Society|date=8 August 2011|volume=45|issue=1|pages=120–141|doi=10.1177/0013124511407317|s2cid=144814662|url=http://eus.sagepub.com/content/45/1/120|access-date=28 October 2013|url-access=subscription}}</ref>
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