It first developed on a large scale as a strategy by recalcitrant school districts to respond to the legal demand by black families, backed by the U.S. Supreme Court in the 1954 Brown decision, for access to the better schools provided only for white students. Supporters of school segregation initiated both choice plans designed to leave segregation almost completely intact and voucher plans designed to permit white families and children to avoid integration. In Brown, the court found the school systems segregated by law to be “inherently unequal.”20 State laws mandating total segregation were now void and change was needed.21 A leading southern federal court ruled shortly after Brown that the Constitution did not require desegregation of schools but instead only some choice for some black students to transfer to white schools.22 The Supreme Court left most decisions about desegregation plans to the lower courts for a generation. Until 1968 it did not define what kind of desegregation had to be achieved. Meanwhile, the debate raged, and the southern position was that the Constitution would be fully satisfied by providing a limited choice to transfer for those students. No one thought that whites in the seventeen southern states would chose to transfer to all-black schools, and they were right. Black students who transferred to white schools often found themselves a small, isolated, and unwelcome minority. A decade after Brown, 98 percent of black students were still in all-black schools.23
Still, it became apparent that the South would not be permitted to blatantly defy any compliance with Brown. Southern leaders searched for ways to hold desegregation to a minimum, and the strategy known as freedom of choice was adopted across the region. Separate school systems with their separate student bodies and faculties would be kept as intact as possible. The black students who tried to get into white schools had to run a gauntlet of procedural barriers and their parents were often threatened within the community, and very few families were willing to face these problems.24 The historically black schools remained absolutely segregated. Freedom of choice became, in reality, freedom to retain segregation.
Under the 1964 Civil Rights Act, which required that recipients of federal dollars end discrimination, in 1965 federal education officials set minimum civil rights standards for choice, including (1) a clear chance for every family to make choices each year, (2) a guarantee that these choices be honored, (3) a guarantee of free transportation to receiving schools, (4) a prohibition on transfers that would increase segregation, and (5) a requirement of fair treatment of new students in receiving schools.25 Federal authorities who evaluated the results of freedom of choice in thousands of districts knew that real choice required strict preconditions. Though the result of these standards was a substantial acceleration of desegregation, black schools were still untouched, faculties were still segregated, and it became clear that much more would be needed to integrate the segregated school systems. In 1966 the federal government moved from a focus on process to a focus on outcomes, requiring a set level of progress in integration if choice was to be continued. Faculty desegregation was required. In 1968, the Office for Civil Rights simply set a deadline for the full integration of schools and faculties.26 The federal courts similarly required actual desegregation rather than plans for choice. After the Lyndon Johnson administration started seriously enforcing Title VI of the 1964 Civil Rights Act, which prohibits discrimination in all institutions receiving federal funds, almost all southern districts began to desegregate, and the Fifth Circuit Court of Appeals in the Deep South adopted standards requiring comprehensive desegregation.27 The Supreme Court, in its 1968 decision in Green v. New Kent County, held that constitutional requirements of full desegregation were not satisfied by a choice to transfer to white schools but required abolishing segregation “root and branch,” something that choice systems almost always failed to do.28 These policies soon meant that the South had the nation's most integrated schools for black students, a record that lasted until 2004.
Northern Choices: Open Enrollment and Optional Zones
Another choice-based approach was common in big-city school systems, especially for students located in diverse or racially changing areas. In northern and western U.S. cities with significant black and Latino school enrollments, segregation had also been the norm. It was accomplished mostly through housing segregation, locating schools to maximize racial separation, drawing school-attendance boundaries and adopting transfer policies that segregated students, and assigning teachers in a segregated way. Virtually every city ever examined by a federal court in a desegregation case—including Boston, Buffalo, Cincinnati, Cleveland, Indianapolis, Minneapolis, and Omaha—was found guilty of such pro-segregation practices.29
Although they claimed to be operating neighborhood schools, districts often drew boundaries along racial lines, ignoring the proximity of certain residences to particular schools, and changed the lines to preserve segregation as neighborhoods changed. Black or Latino children in overcrowded schools were regularly denied access to nearby white schools with space. As nonwhite populations in cities expanded, the Supreme Court struck down both laws that overtly segregated neighborhoods by race and laws that enforced restrictive covenants.30 Minority communities expanded into sectors of previously white neighborhoods, leaving isolated pockets of whites inside minority neighborhoods and schools. To permit white students who happened to live in specified areas with heavily minority schools to transfer to white schools, many cities implemented optional attendance zones. Open-enrollment policies permitted families to transfer from those areas even if this increased segregation. These policies, of course, undermined integrated neighborhoods and sped the resegregation of their schools. Similar patterns occurred when unrestricted choice programs were adopted after the civil rights era.31 Earlier, federal courts had found the dominant forms of choice across the United States to be fostering or maintaining unconstitutional segregation. Choice was a strategy strongly linked to segregation.
Vouchers for Segregation
The first significant use of vouchers by local officials came when Prince Edward County, Virginia, closed its entire school system in 1959 to prevent integration. The Virginia state legislature had enacted a law that called for the closing of any school that began integration and the governor had closed schools in several districts to prevent desegregation, actions that both federal and state courts eventually held to be illegal. This left the leaders of rural Prince Edward County facing the likelihood that some integration would be mandated in their district. In response they implemented their plan that completely shut down public schools in the county and provided private school vouchers. New private white academies promptly hired faculties made up almost completely of former public school teachers and resumed teaching whites. The black community lacked the money and power to create and fund its own schools, so the black children in the county went without schools for five years. When the case reached the Supreme Court, the justices ordered the reopening of the public schools.32 During the oral argument on the case, Chief Justice Earl Warren responded to the county lawyer's arguments by saying that Prince Edward had provided African American children the “freedom to go through life without education.”33 One could argue, as the county's lawyers did, that there was no racial problem, since anyone could have a voucher for whatever private school where they could enroll. The fact that there was no school for blacks showed one of the great flaws of the market approach. The vouchers were perfectly effective in preserving segregation and took away the only option black students had. It turned out that the market had an absolute barrier and provided them with no replacement options, creating absolute inequality.
Two fundamental lessons of the early civil rights era were that producing integrated schools almost never happens by accident in highly segregated communities with deeply rooted racial and ethnic stereotypes and fears, and that unrestricted choice or voucher systems are more likely to compound than to remedy segregation and inequality. If the burden is put on the victims of segregation to change the situation and the involved institutions are absolved of any significant responsibility, very little will happen. This was why strict conditions about choice procedures, transportation, and related matters were put into operation in enforcing the Civil Rights Act and why mandatory desegregation orders were found to be necessary to actually integrate the schools in many communities.34
