Equal Protection in Education: School Segregation, Affirmative Action

Explore the legal battles and landmark cases shaping equal protection in education, focusing on school segregation and affirmative action, and understand the ongoing challenges and debates in promoting educational equity in the U.S.

Equal protection in education is a fundamental principle enshrined in the U.S. Constitution, particularly under the Fourteenth Amendment. This principle mandates that no state shall deny any person within its jurisdiction the equal protection of the laws. This legal guide explores two critical aspects of equal protection in education: school segregation and affirmative action. These topics have been the subject of significant legal battles and have shaped the landscape of educational opportunities in the United States.

Historical Context of School Segregation

Plessy v. Ferguson (1896)

The doctrine of "separate but equal" was established by the Supreme Court in Plessy v. Ferguson, 163 U.S. 537 (1896). This case upheld state laws requiring racial segregation in public facilities under the premise that segregated facilities were permissible as long as they were equal in quality. This decision provided a legal foundation for the widespread segregation of public schools.

Brown v. Board of Education (1954)

The landmark case of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), overturned Plessy v. Ferguson. The Supreme Court unanimously ruled that racial segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment. The Court declared that "separate educational facilities are inherently unequal," thus mandating the desegregation of schools across America.

Implementation and Resistance

Despite the ruling in Brown, many states resisted desegregation. The Supreme Court's subsequent decision in Brown II (1955) ordered that desegregation occur "with all deliberate speed," but this vague mandate allowed for prolonged resistance. Federal intervention, such as the deployment of National Guard troops to enforce desegregation in Little Rock, Arkansas, was sometimes necessary to ensure compliance.

Key Cases and Legislation

Green v. County School Board of New Kent County (1968)

In Green v. County School Board of New Kent County, 391 U.S. 430 (1968), the Supreme Court addressed the issue of "freedom-of-choice" plans that allowed students to choose between segregated schools. The Court ruled that such plans were insufficient if they did not result in actual desegregation.

Swann v. Charlotte-Mecklenburg Board of Education (1971)

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), further clarified the scope of desegregation efforts. The Court upheld the use of busing as a legitimate tool to achieve integration and eliminate the vestiges of segregation.

Civil Rights Act of 1964

The Civil Rights Act of 1964, particularly Title IV, played a crucial role in advancing school desegregation. It authorized the federal government to file lawsuits to enforce desegregation and provided financial assistance to schools that complied with desegregation orders.

Affirmative Action in Education

Definition and Purpose

Affirmative action refers to policies and practices designed to promote equal opportunity for historically marginalized groups. In the context of education, affirmative action aims to increase the representation of underrepresented minorities in higher education institutions.

Regents of the University of California v. Bakke (1978)

The Supreme Court's decision in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), was a pivotal moment for affirmative action in education. The Court held that while race could be considered as one of many factors in admissions decisions, the use of racial quotas was unconstitutional.

Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003)

In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court upheld the University of Michigan Law School's affirmative action policy, which considered race as a factor in a holistic admissions process. However, in Gratz v. Bollinger, 539 U.S. 244 (2003), the Court struck down the university's undergraduate admissions policy, which awarded points based on race, as it was too mechanistic and not narrowly tailored.

Fisher v. University of Texas (2013, 2016)

The Fisher v. University of Texas cases (570 U.S. 297 (2013) and 579 U.S. ___ (2016)) further refined the legal standards for affirmative action. The Supreme Court upheld the university's admissions policy, emphasizing that race-conscious admissions policies must undergo strict scrutiny and demonstrate that no race-neutral alternatives would achieve the same diversity benefits.

Recent Developments

Students for Fair Admissions v. Harvard (2023)

In Students for Fair Admissions v. Harvard, the Supreme Court addressed the constitutionality of Harvard University's race-conscious admissions policy. The Court's decision reaffirmed the principles established in previous affirmative action cases, emphasizing the need for narrowly tailored policies that serve a compelling interest in diversity.

Federal Guidance and Resources

The U.S. Department of Education and the U.S. Department of Justice have issued guidance on the implementation of affirmative action policies in higher education. These resources provide institutions with frameworks for developing legally compliant admissions practices.

Ongoing Challenges and Debates

School Segregation

Despite significant progress since Brown v. Board of Education, school segregation remains a persistent issue. Factors such as residential segregation, economic disparities, and local control of schools contribute to ongoing segregation. Efforts to address these challenges include policies promoting school choice, magnet schools, and equitable funding.

Affirmative Action

Affirmative action continues to be a contentious issue, with debates centered around the fairness and effectiveness of race-conscious admissions policies. Critics argue that such policies may result in reverse discrimination, while proponents emphasize the importance of diversity in educational environments.

Strict Scrutiny Standard

Affirmative action policies must meet the strict scrutiny standard, the highest level of judicial review. This requires demonstrating that the policy serves a compelling governmental interest and is narrowly tailored to achieve that interest.

Race-Neutral Alternatives

Institutions must consider race-neutral alternatives to achieve diversity. These may include socioeconomic-based admissions criteria, targeted outreach programs, and holistic review processes that consider a wide range of applicant characteristics.


Equal protection in education is a dynamic and evolving area of law. The principles established in landmark cases such as Brown v. Board of Education and Regents of the University of California v. Bakke continue to shape the legal landscape. Ongoing challenges and debates highlight the need for continued vigilance and innovation in promoting educational equity. By understanding the legal framework and historical context, stakeholders can work towards creating more inclusive and equitable educational opportunities for all.


  1. Brown v. Board of Education, 347 U.S. 483 (1954)
  2. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
  3. Grutter v. Bollinger, 539 U.S. 306 (2003)
  4. Gratz v. Bollinger, 539 U.S. 244 (2003)
  5. Fisher v. University of Texas, 570 U.S. 297 (2013)
  6. Fisher v. University of Texas, 579 U.S. ___ (2016)
  7. Students for Fair Admissions v. Harvard, 2023
  8. U.S. Department of Education - Office for Civil Rights
  9. U.S. Department of Justice - Educational Opportunities Section
About the author
Von Wooding

Von Wooding

Helpful legal information and resources

Counsel Stack Learn

Free and helpful legal information

Counsel Stack Learn

Great! You’ve successfully signed up.

Welcome back! You've successfully signed in.

You've successfully subscribed to Counsel Stack Learn.

Success! Check your email for magic link to sign-in.

Success! Your billing info has been updated.

Your billing was not updated.