Dayton Bd. of Educ. v. Brinkman
443 U.S. 526 (1979)

Annotate this Case

U.S. Supreme Court

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979)

Dayton Board of Education v. Brinkman

No. 78-627

Argued April 24, 1979

Decided July 2, 1979

443 U.S. 526

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Syllabus

A number of students in the Dayton, Ohio, school system, through their parents, brought this action in District Court in 1972, alleging that the Dayton Board of Education, the State Board of Education, and various local and state officials were operating a racially segregated school system in violation of the Equal Protection Clause of the Fourteenth Amendment. After protracted litigation at both the trial and appellate levels, the District Court dismissed the complaint, ruling that, although the Dayton Schools concededly were highly segregated, the Dayton Board's failure to alleviate this condition was not actionable absent sufficient evidence that the racial separation had been caused by the Board's own purposeful discriminatory conduct. In the District Court's view, plaintiffs had failed to show either discriminatory purpose or segregative effect, or both, with respect to the Board's challenged practices and policies, which included faculty hiring and assignments, the use of optional attendance zones and transfer policies, the location and construction of new and expanded school facilities, and the rescission of certain prior resolutions recognizing the Board's responsibility to eradicate racial separation in the public schools. The Court of Appeals reversed, holding that, at the time of Brown v. Board of Education,347 U. S. 483 (Brown I), in 1954, the Dayton Board had operated a racially segregated, dual school system, that it was constitutionally required to disestablish that system and its effects, that it had failed to discharge this duty, and that the consequences of the dual system, together with the intentionally segregative impact of various practices since 1954, were of systemwide import, and an appropriate basis for a systemwide remedy.

Held:

1. On the record, there is no basis for disturbing the Court of Appeals' holding that, at the time of Brown I, the Dayton Board was intentionally operating a dual school system in violation of the Equal Protection Clause. Pp. 443 U. S. 534-537.

2. Given the fact that a dual system existed in 1954, the Court of Appeals also properly held that the Dayton Board was thereafter under a continuing duty to eradicate the effects of that system, and that the

Page 443 U. S. 527

systemwide nature of the violation furnished prima facie proof that current segregation in the Dayton schools was caused at least in part by prior intentionally segregative official acts. Part of the affirmative duty imposed on a school board is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects, Wright v. Council of City of Emporia,407 U. S. 451, and here the Dayton Board had engaged in many post-Brown I actions that had the effect of increasing or perpetuating segregation. The measure of a school board's post-Brown I conduct under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. The Dayton Board had to do more than abandon its prior discriminatory purpose, Keyes v. School Dist. No. 1, Denver, Colo.,413 U. S. 189; Swann v. Charlotte-Mecklenburg Bd. of Ed.,402 U. S. 1. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices were not used and did not serve to perpetuate or reestablish the dual system, and has a "heavy burden" of showing that actions that increased or continued t,he effects of the dual system serve important and legitimate ends. Pp. 443 U. S. 537-540.

3. Nor is there any reason to fault the Court of Appeals' finding, after the remand of this case in Dayton Board of Education v. Brinkman,433 U. S. 406, that a sufficient case of current, systemwide effect had been established. This was not a misuse of Keyes, supra, where it was held that

"purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted,"

and that,

"given the purpose to operate a dual school system, one could infer a connection between such a purpose and racial separation in other parts of the school system."

Columbus Board of Education v. Penick, ante at 443 U. S. 467-468. The Court of Appeals was also justified in utilizing the Dayton Board's failure to fulfill its affirmative duty and its conduct perpetuating or increasing segregation to trace the current, systemwide segregation back to the purposefully dual system of the 1950's and the subsequent acts of intentional discrimination. Pp. 443 U. S. 540-542.

583 F.2d 243, affirmed.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which BURGER, C.J., joined, ante p. 443 U. S. 469. POWELL, J., filed a dissenting opinion, ante, p. 443 U. S. 479. REHNQUIST, J., filed a dissenting opinion, in which POWELL, J., joined, post, p. 443 U. S. 542.

Page 443 U. S. 528

MR. JUSTICE WHITE delivered the opinion of the Court.

This litigation has a protracted history in the courts below and has already resulted in one judgment and opinion by this Court. Dayton Board of Education v. Brinkman,433 U. S. 406 (1977) (Dayton I). In its most recent opinion, the

Page 443 U. S. 529

United States Court of Appeals for the Sixth Circuit approved a systemwide plan for desegregating the public schools of Dayton, Ohio. Brinkman v. Gilligan, 583 F.2d 243 (1978). The Court of Appeals found that the Dayton Board of Education had operated a racially segregated, dual school system at the time of Brown v. Board of Education,347 U. S. 483 (1954) (Brown I), and that

"[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination"

and "actually have exacerbated the racial separation existing at the time of Brown I." 583 F.2d at 253. We granted certiorari, 439 U.S. 1066 (1979), and heard argument in this case in tandem with Columbus Board of Education v. Penick, ante, p. 443 U. S. 449. We now affirm the judgment of the Court of Appeals.

I

The public schools of Dayton are highly segregated by race. In the year the complaint was filed, 43% of the students in the Dayton system were black, but 51 of the 69 schools in the system were virtually all white or all black. [Footnote 1] Brinkman v.

Page 443 U. S. 530

Gilligan, 446 F.Supp. 1232, 1237 (SD Ohio 1977). A number of students in the Dayton system, through their parents, brought this action on April 17, 1972, alleging that the Dayton Board of Education, the State Board of Education, and the appropriate local and state officials [Footnote 2] were operating a racially segregated school system in violation of the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs sought a court order compelling desegregation. The District Court sustained their challenge, determining that certain actions by the Dayton Board amounted to a "cumulative" violation of the Fourteenth Amendment. Id. at 1259. [Footnote 3] The District Court also approved a plan having limited remedial objectives. The District Court's judgment that the Board had violated the Fourteenth Amendment was affirmed by the Court of Appeals; but after twice being reversed on the ground that the prescribed remedy was inadequate to eliminate all vestiges of state-imposed segregation, the District Court ordered the

Page 443 U. S. 531

Board to take the necessary steps to assure that each school in the system would roughly reflect the systemwide ratio of black and white students. App. to Pet. for Cert. 103a. [Footnote 4] The Court of Appeals then affirmed. Brinkman v. Gilligan, 539 F.2d 1084 (1976).

We reversed the judgment of the Court of Appeals and ordered the case remanded to the District Court for further proceedings. Dayton I, supra. In light of the District Court's limited findings regarding liability, [Footnote 5] we concluded that there was no warrant for imposing a systemwide remedy. Rather, the District Court should have

"determine[d] how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference,

Page 443 U. S. 532

and only if there has been a systemwide impact may there be a systemwide remedy."

433 U.S. at 433 U. S. 420. In view of the confusion evidenced at various stages of the proceedings regarding the scope of the violation established, we remanded the case to permit supplementation of the record and specific findings addressed to the scope of the remedy, id. at 433 U. S. 418-419, but allowed the existing remedy to remain in effect on remand subject to further orders of the District Court, id. at 433 U. S. 420-421. The District Court held a supplemental evidentiary hearing, undertook to review the entire record anew, and entered findings of fact and conclusions of law and a judgment dismissing the complaint. In support of its judgment, the District Court observed that, although various instances of purposeful segregation in the past evidenced "an inexcusable history of mistreatment of black students," 446 F.Supp. at 1237, plaintiffs had failed to prove that acts of intentional segregation over 20 years old had any current incremental segregative effects. [Footnote 6] The District Court conceded that the Dayton schools were highly segregated, but ruled that the Board's failure to alleviate this condition was not actionable absent sufficient evidence that the racial separation had been caused by the Board's own purposeful discriminatory conduct. In the District Court's eyes, plaintiffs had failed to show either discriminatory purpose or segregative effect, or both, with respect to the challenged practices and policies of the Board, which included faculty hiring and assignments, the use of optional attendance zones and transfer policies, the location and construction of new and expanded school facilities, and

Page 443 U. S. 533

the rescission of certain prior resolutions recognizing the Board's responsibility to eradicate racial separation in the public schools. [Footnote 7]

Page 443 U. S. 534

The Court of Appeals reversed. The basic ingredients of the Court of Appeals' judgment were that, at the time of Brown I, the Dayton Board was operating a dual school system, that it was constitutionally required to disestablish that system and its effects, that it had failed to discharge this duty, and that the consequences of the dual system, together with the intentionally segregative impact of various practices since 1954, were of systemwide import and an appropriate basis for a systemwide remedy. In arriving at these conclusions, the Court of Appeals found that, in some instances, the findings of the District Court were clearly erroneous, and that, in other respects, the District Court had made errors of law. 583 F.2d at 247. Petitioners contend that the District Court, not the Court of Appeals, correctly understood both the facts and the law.

II

A

The Court of Appeals expressly held that, "at the time of Brown I, defendants were intentionally operating a dual school system in violation of the Equal Protection Clause of the fourteenth amendment," and that the "finding of the district court to the contrary is clearly erroneous." 583 F.2d at 247 (footnote omitted). On the record before us, we perceive no basis for petitioners' challenge to this holding of the Court of Appeals. [Footnote 8]

Page 443 U. S. 535

Concededly, in the early 1950's,

"77.6 percent of all students attended schools in which one race accounted for 90 percent or more of the students and 54.3 percent of the black students were assigned to four schools that were 100 percent black."

Id. at 248-249. One of these schools was Dunbar High School, which, the District Court found, had been established as a districtwide black high school with an all-black faculty and a black principal, and remained so at the time of Brown I and up until 1962. 446 F.Supp. at 1245. The District Court also found that "among" the early and relatively undisputed acts of purposeful segregation was the establishment of Garfield as a black elementary school. Id. at 1236-1237. The Court of Appeals found that two other elementary schools were, through a similar process of optional attendance zones and the creation and maintenance of all-black faculties, intentionally designated and operated as all-black schools in the 1930's, in the 1940's, and at the time of Brown I. 583 F.2d at 249, 250-251. Additionally, the District Court had specifically found that, in 1950, the faculty at 100% black schools was 100% black, and that the faculty at all other schools was 100% white. 446 F.Supp. at 1238.

These facts, the Court of Appeals held, made clear that the Board was purposefully operating segregated schools in a substantial part of the district, which warranted an inference and a finding that segregation in other parts of the system was also purposeful, absent evidence sufficient to support a finding that the segregative actions "were not taken in effectuation of a policy to create or maintain segregation" or were not among the "factors . . . causing the existing condition of segregation in these schools." Keyes v. School Dist. No. 1, Denver, Colo.,413 U. S. 189, 413 U. S. 214 (1973); see id. at 413 U. S. 203; Columbus Board of Education v. Penick, ante, at 443 U. S. 467-468. The District Court had therefore ignored the legal significance of the intentional

Page 443 U. S. 536

maintenance of a substantial number of black schools in the system at the time of Brown I. It had also ignored, contrary to Swann v. Charlotte-Mecklenburg Board of Education,402 U. S. 1, 402 U. S. 18 (1971), the significance of purposeful segregation in faculty assignments in establishing the existence of a dual school system; [Footnote 9] here, the "purposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices." 583 F.2d at 248. Based on its review of the entire record, the Court of Appeals concluded that the Board had not responded with sufficient evidence to counter the inference that a dual system was in existence in Dayton in 1954. Thus, it concluded that the Board's "intentional segregative

Page 443 U. S. 537

practices cannot be confined in one distinct area"; they "infected the entire Dayton public school system." Id. at 252.

B

Petitioners next contend that, even if a dual system did exist a quarter of a century ago, the Court of Appeals erred in finding any widespread violations of constitutional duty since that time.

Given intentionally segregated schools in 1954, however, the Court of Appeals was quite right in holding that the Board was thereafter under a continuing duty to eradicate the effects of that system, Columbus, ante, at 443 U. S. 458, and that the systemwide nature of the violation furnished prima facie proof that current segregation in the Dayton schools was caused at least in part by prior intentionally segregative official acts. Thus, judgment for the plaintiffs was authorized and required absent sufficient countervailing evidence by the defendant school officials. Keyes, supra, at 413 U. S. 211; Swann, supra, at 402 U. S. 26. At the time of trial, Dunbar High School and the three black elementary schools, or the schools that succeeded them, remained black schools; and most of the schools in Dayton were virtually one-race schools, as were 80% of the classrooms.

"'Every school which was 90 percent or more black in 1951-52 or 1963-64 or 1971-72 and which is still in use today remains 90 percent or more black. Of the 25 white schools in 1972-73, all opened 90 percent or more white and, if open, were 90 percent or more white in 1971-72, 1963-64 and 1951-52.'"

583 F.2d at 254 (emphasis in original), quoting Brinkman v. Gilligan, 503 F.2d 684, 694-695 (CA6 1974). Against this background, the Court of Appeals held that

"[t]he evidence of record demonstrates convincingly that defendants have failed to eliminate the continuing systemwide effects of their prior discrimination, and have intentionally maintained a segregated school system down to the time the complaint was filed in the present case."

583 F.2d at 253. At the very

Page 443 U. S. 538

least, defendants had failed to come forward with evidence to deny "that the current racial composition of the school population reflects the systemwide impact" of the Board's prior discriminatory conduct. Id. at 258.

Part of the affirmative duty imposed by our cases, as we decided in Wright v. Council of City of Emporia,407 U. S. 451 (1972), is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects. See also United States v. Scotland Neck Board of Education,407 U. S. 484 (1972). The Dayton Board, however, had engaged in many post-Brown I actions that had the effect of increasing or perpetuating segregation. The District Court ignored this compounding of the original constitutional breach on the ground that there was no direct evidence of continued discriminatory purpose. But the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system. Wright, supra at 407 U. S. 460, 407 U. S. 462; Davis v. School Comm'rs of Mobile County,402 U. S. 33, 402 U. S. 37 (1971); see Washington v. Davis,426 U. S. 229, 426 U. S. 243 (1976). As was clearly established in Keyes and Swann, the Board had to do more than abandon its prior discriminatory purpose. 413 U.S. at 413 U. S. 200-201, n. 11; 402 U.S. at 402 U. S. 28. The Board has had an affirmative responsibility to see that pupil assignment policies and school construction and abandonment practices "are not used and do not serve to perpetuate or reestablish the dual school system," Columbus, ante at 443 U. S. 460, and the Board has a "heavy burden'" of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends. Wright, supra at 407 U. S. 467, quoting Green v. County School Board,391 U. S. 430, 391 U. S. 439 (1968).

The Board has never seriously contended that it fulfilled its affirmative duty or the heavy burden of explaining its failure

Page 443 U. S. 539

to do so. Though the Board was often put on notice of the effects of its acts or omissions, [Footnote 10] the District Court found that, "with one [counterproductive] exception . . . , no attempt was made to alter the racial characteristics of any of the schools." 446 F.Supp. at 1237. The Court of Appeals held that, far from performing its constitutional duty, the Board had engaged in "post-1954 actions which actually have exacerbated the racial separation existing at the time of Brown I." 583 F.2d at 253. The court reversed as clearly erroneous the District Court's finding that intentional faculty segregation had ended in 1951; the Court of Appeals found that it had effectively continued into the 1970's. [Footnote 11] This was a systemwide practice, and strong evidence that the Board was continuing its efforts to segregate students. Dunbar High School remained as a black high school until 1962, when a new Dunbar High School opened with a virtually all black faculty and student body. The old Dunbar was converted into an elementary

Page 443 U. S. 540

school to which children from two black grade schools were assigned. Furthermore, the Court of Appeals held that, since 1954, the Board had used some "optional attendance zones for racially discriminatory purposes in clear violation of the Equal Protection Clause." Id. at 255. The District Court's finding to the contrary was clearly erroneous. [Footnote 12] At the very least, the use of such zones amounted to a perpetuation of the existing dual school system. Likewise, the Board failed in its duty and perpetuated racial separation in the schools by its pattern of school construction and site selection, recited by the District Court, seen 7, supra, that resulted in 22 of the 24 new schools built between 1950 and the filing of the complaint opening 90% black or white. The same pattern appeared with respect to additions of classroom space made to existing schools. Seventy-eight of a total of 86 additions were made to schools that were 90% of one race. We see no reason to disturb these factual determinations, which conclusively show the breach of duty found by the Court of Appeals.

C

Finally, petitioners contend that the District Court correctly interpreted our earlier decision in this litigation as requiring respondents to prove with respect to each individual act of discrimination precisely what effect it has had on current patterns of segregation. [Footnote 13] This argument results from a misunderstanding of Dayton I, where the violation that had

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