Constitutional law: Individual rights - Equal Protection Clause (Part 2 of 2)

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. 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 politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional. In that opinion, Warren wrote:

To separate 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". 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 school boards and to the 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".

partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, 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 a quite common response 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 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 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.