Case: Bolling v. Sharpe

In 1947, barber and civil rights activist Gardner Bishop and a group he founded, the Consolidated Parents Group, began a crusade to end segregated schooling in Washington, D.C. For more information about his efforts, including a student strike, see this account.

With the strike unsuccessful, Bishop and his group decided to contact Charles Hamilton Houston, the special counsel to the NAACP--even though they saw Houston as a representative of elite blacks, not working class people like their group. Houston agreed to take the case on, and to work on it independently, not for the NAACP. It was litigated as Carr v. Corning and Browne v. Magdeburger (consolidated and decided together as Carr). These accused the school board of failing to provide blacks facilities equal to those of white students and of perpetuating fraud by claiming that black children could receive as much education in one half day as white children in a full day. The plaintiffs argued that this race discrimination violated the Fifth Amendment. The District Court for the District of Columbia Circuit dismissed plaintiffs’ complaint. The Court of Appeals affirmed, in an opinion by Circuit Judge E. Barrett Prettyman. Judge Prettyman began his opinion by noting that the case was likely moot because the District had recently abolished “double-shift” scheduling, which had been used to alleviate overcrowding at predominantly African American schools by reducing instructional time. Nevertheless, he proceeded to hold that:

1. The court should not disturb Congress’ long-time involvement in Washington’s schools because the issue of segregation is best left to legislatures; and
2. Plaintiffs’ “unexplained general statistics” are too unreliable to serve as a basis for “particularized conclusions” that the District has failed to provide “equality of the privileges” required by Supreme Court precedent.

Judge Henry W. Edgerton dissented. Relying on the Strayer Report, a comprehensive review of the District of Columbia’s schools published in 1949, Judge Edgerton argued that racial disparities would persist even without “double-shift” scheduling, including widespread overcrowding at African American schools. In addition, Judge Edgerton declared that racial discrimination was so “arbitrary and unreasonable” that the District’s behavior violated the Fifth Amendment’s guarantee of due process. Carr v. Corning, 182 F.2d 14, 15 (D.C. Cir. 1950).

After this defeat, Houston and Bishop decided to expand the theory, framing it not as a separate-but-equal case, but as a frontal attack on segregation itself. When Houston became ill, he enlisted James Nabritt, his Howard Law School colleague, to replace him in the effort. At the beginning of the school term in 1950, Bishop attempted to get eleven young African American students admitted to the newly completed John Philip Sousa Junior High School. They were turned away, although the school had several empty classrooms.

Nabritt then filed this lawsuit, Bolling v. Sharpe, as a class action in the United States District Court for the District of Columbia on November 9, 1950. Plaintiffs sued members of the Washington, D.C. school board and other school officials under 42 U.S.C. § 1983.

The complaint sought declaratory and injunctive relief to end racial segregation in Washington’s public schools. Specifically, they claimed that racial segregation in the District of Columbia’s schools:

• Violated their Fifth Amendment right to due process;
• Violated 42 U.S.C. § 1981’s guarantee of “full and equal benefit of all laws;”
• Violated the prohibition of Bills of Attainder in Article I § 9 of the Constitution;
• Violated the Charter of the United Nations, Chapter I, Article I, § 8 and Article IX, §§ 55 and 56.

The defendants moved to dismiss the case for failure to state a claim upon which relief could be granted. District Judge Walter M. Bastian granted defendants’ motion to dismiss on April 9, 1951, noting at oral arguments that he was bound by Carr.

Plaintiffs appealed to the United States Court of Appeals for the District of Columbia Circuit. They also petitioned the United States Supreme Court for a writ of certiorari, which the court granted before the Court of Appeals heard the case under 28 U.S.C. §§ 1254(1) and 2101(e). 344 U.S. 873 (1952).

The case was argued with Brown v. Board of Education, but decided separately because--since its defendants were the federal authorities who ran the District of Columbia--it proceeded under the Fifth Amendment's Due Process Clause rather than the Fourteenth Amendment's Equal Protection Clause. Chief Justice Earl Warren delivered a brief, unanimous opinion reversing the District Court on the same day that the court decided Brown v. Board of Education. Chief Justice Warren began by noting that racial classifications must be “scrutinized with particular care,” citing Buchanan v. Warley (invalidating racially restrictive housing covenants). He determined that the government had no rational basis for maintaining segregated schools and that, therefore, segregation was an “arbitrary deprivation” of liberty in violation of the Fifth Amendment’s Due Process clause. The case was restored to the docket to determine what appropriate remedial orders the court should issue. 347 U.S. 497 (1954).

In a decision that covered both Bolling and the several state cases address in Brown, Chief Justice Warren delivered an equivocal opinion that allowed a great deal of local flexibility in complying with the Court’s desegregation orders. He encouraged district courts to display “practical flexibility” while considering “public and private considerations” surrounding desegregation while ordering schools to desegregate “with all deliberate speed.” The Court remanded the cases for development of a plan. But Chief Justice Warren did note that the District of Columbia already made “[s]ubstantial progress” towards an integrated school system. Brown v. Board of Ed., 349 U.S. 294 (1955).

Following the Supreme Court’s remand, the Board of Education for Washington, D.C. banned employment discrimination based on race and prepared for integration of schools starting in September, 1954 by drawing new geographical boundaries for its schools. By September 1955, Assistant Superintendent Carl F. Hansen claimed “School Desegregation Is Complete” because 87.3% of pupils attended integrated schools and the District hired qualified African-American applicants to teach in predominantly white schools. He rejected the idea that every school had to have pupils from multiple races and contested claims that an excessive number of transfers were granted to parents avoiding integration.

Much of the progress in Washington’s school system turned out to be illusory. Most ‘integrated’ schools served students who were overwhelmingly African-American or overwhelmingly white, and white enrollment declined steadily. See Henig, Jeffrey R. Patterns of School-Level Racial Change in D.C. in the Wake of Brown: Perceptual Legacies of Desegregation. Moreover, the District implemented ability-tracking and student transfer programs that had a discriminatory effect on African-American students and were later invalidated in Hobson v. Hansen, 269 F. Supp. 401, 406 (D.D.C 1967).