Following the decision in Swann v. Board of Education,
402 U. S. 1
Court of Appeals remanded this school desegregation case to the
District Court with instructions to obtain a new plan from the
School Board to give effect to Swann.
considering itself required to do so, submitted, under protest, a
revised plan designed "to achieve a racial balance" throughout the
system. On July 26, 1971, the District Court accepted the plan for
the school year commencing August 30, 1971. On August 23 the Board
applied for the instant stay, to which response was received on
August 26. The Board has stated, as to travel time, merely that the
"average time" of travel is one hour. The stay is denied as, on
this inadequate record, it cannot be determined with assurance
whether the lower courts correctly read Swann's
negating any constitutional requirements of racial balance or
racial quotas and suggesting limits for student transportation.
444 F.2d 99.
MR. CHIEF JUSTICE BURGER, Circuit Justice.
The Board of Education of the Forsyth County, North Carolina,
school system has applied for a stay of a decision of the United
States Court of Appeals for the Fourth Circuit, dated June 10,
1971, and subsequent orders of the United States District Court for
the Middle District of North Carolina entered pursuant thereto,
pending disposition of the Board's petition for writ of certiorari
to review the decision of the Court of Appeals. The operative order
of the District Court is dated July 26, 1971; it adopts a plan for
pupil assignment designed to desegregate the public schools of
Page 404 U. S. 1222
The affected schools were already scheduled to open Monday,
The application for a stay was filed August 23, 1971, and the
response thereto on August 26, 1971, making that date the earliest
possible date for this Court or a Justice to act on the stay.
The background is of some importance.
Respondents, who are Negro pupils and parents in the school
system, commenced action alleging that the School Board was
operating a dual school system, and seeking appropriate relief. The
school system embraces both rural and urban area in a county school
system. The District Court found that, in December, 1969 there,
were 67 schools in the system with approximately 50,000 students.
The total student population was 72.5% white and 27.5% Negro. Of
the schools, 15 were all-Negro and seven were all-white. Of the
remaining schools, 31 had less than 5% of the minority race. The
school system was operated under a geographical attendance zone
system, with freedom of choice transfer provisions for all students
regardless of race.
Prior to this Court's holding in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S.
(1971), the plaintiffs submitted a plan devised by
their consultant, Dr. Larsen; it was designed to achieve as closely
as possible a mathematical racial balance in all of the schools of
the system equal to that in the system as a whole. It employed
satellite zoning and extensive cross-busing. The District Court
rejected the plan as not constitutionally required and unduly
The School Board then submitted its plan for the 1970-1971
school year to the court for approval. It retained geographic
zoning and freedom of choice transfer provisions, but with certain
modifications allowing priority to majority-to-minority transfers
and increasing the racial "balance" of several schools. The
Page 404 U. S. 1223
Court in 1970 approved the Board's plan, subject to alterations
which prevented minority-to-majority transfers, made changes
affecting three attendance zones, and added a requirement that the
Board create "innovative" programs designed to increase racial
contact of students.
In rejecting the Larsen plan and approving the modified Board
plan, the District Court found that the boundaries of the
attendance zones had been drawn in good faith and without regard to
racial considerations, and to ensure that, so far as possible,
pupils attended the schools nearest their home, taking into account
physical barriers, boundaries, and obstacles that might endanger
children in the course of reaching their schools. The District
Court at that time was of the view that the "neighborhood" school
concept could not be the basis of assignment if residence in a
neighborhood was denied or compelled because of race, but went on
to find that the racial concentration of Negroes was not caused by
public or private discrimination or state action, but by economic
factors and the desire of Negroes to live in their own
neighborhoods, rather than in predominately white neighborhoods.
That finding has not been reviewed. Finally, the District Court
found that the School Board had acted consistently in good faith,
and was of the view that good faith "is a vital element in properly
evaluating local judgment in devising compliance plans." 317 F.
Supp. 453, 476 (1970).
The District Court's order was rendered in the summer of 1970,
and all parties appealed to the Court of Appeals for the Fourth
Circuit. While that appeal was pending, this Court decided
Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1
and related cases. See Davis v. Board of School Commissioners
of Mobile County, 402 U. S. 33
(1971); McDaniel v.
Page 404 U. S. 1224
402 U. S. 39
(1971); North Carolina State Board of Education v. Swann,
402 U. S. 43
In light of the Swann
holding, the Court of Appeals, by
per curiam opinion en banc, remanded this and several other cases
to their respective district courts with instructions to receive
from the school boards new plans "which will give effect to
" 444 F.2d 99, 100 (1971). In its
remand, the Court of Appeals stated in part:
"It is now clear, we think, that, in school systems that have
previously been operated separately as to the races by reason of
state action, 'the district judge or school authorities should make
every effort to achieve the greatest possible degree of actual
desegregation, taking into account the practicalities of the
situation.' Davis, supra,
at 402 U. S.
"* * * *"
"If the district court approves a plan achieving less actual
desegregation than would be achieved under an alternate proposed
plan, it shall find facts that are thought to make impracticable
the achieving of a greater degree of integration, especially if
there remain any schools all or predominately of one race."
"* * * *"
"In Winston-Salem/Forsyth County,
the school board may
fashion its plan on the Larsen plan with necessary modifications
and refinements or adopt a plan of its choice which will meet the
requirements of Swann
444 F.2d at 100-102.
On remand, the District Court interpreted the order of the Court
of Appeals to mean that, because the State of North Carolina
formerly had state-enforced dual school systems, declared
unconstitutional in Brown v. Board of Education,
347 U. S. 483
(1954), the pupil
Page 404 U. S. 1225
assignment plan in Forsyth County had to be substantially
revised to "achieve the greatest possible degree of desegregation."
It concluded that:
"Despite the substantial difference between the findings of this
Court, which formed the predicate for this Court's June 25, 1970,
opinion in this case, and the findings which form the predicate of
the decision of the District Court in Swann,
apparent that it is as 'practicable' to desegregate all the public
schools in the Winston-Salem/Forsyth County system as in the
Charlotte-Mecklenburg system, and that the appellate courts will
accept no less. Consequently, this Court can approve no less. . .
The District Court then ordered the School Board to comply with
the time schedule set by the Court of Appeals in submitting the
required plan. Just why the District Judge undertook an
independent, subjective analysis of how his case compared factually
with the Swann
case -- something he could not do
adequately without an examination of a comprehensive record not
before him -- is not clear.
The school authorities, declaring that they considered
themselves "required" to do so, adopted a revised pupil assignment
plan which was expressly designed "to achieve a racial
throughout the system which will be acceptable to the
Court." (Emphasis added.) Prior to the adoption of the revised
plan, the school system transported about 18,000 pupils per day in
about 216 buses. The drafters of the revised plan estimated that it
would require at a minimum, with use of staggered school openings,
157 additional buses to transport approximately 16,000 additional
The Board submitted the plan to the District Court under protest
and voiced strong objections to its adoption. A Board resolution
submitted with the plan stated
Page 404 U. S. 1226
in conclusion that it was submitted to
"accomplish the required objective
of achieving a
racial balance in the public schools . . . , [but it] is not a
sound or desirable plan, and should not be required. . . ."
(Emphasis added.) On July 26, 1971, the District Court accepted
the plan, noting that it was "strikingly similar" to the Larsen
plan which it had previously refused to implement as not
On August 23, the School Board applied to me, as Circuit
Justice, for a stay pending disposition by the Court of its
petition for writ of certiorari, filed the same day, seeking review
of the remand order of the Court of Appeals; the response was
received, as previously noted, August 26, 1971. The Board states
that it has not applied previously to either the District Court or
the Court of Appeals for a stay because the language of the
decisions and orders of those courts makes it clear that neither
would grant a stay and because there was not time to do so prior to
the opening of the new school year.
In its present posture, this stay application, like that
presented to MR. JUSTICE BLACK and acted on by him August 19, 1971,
in Corpus Christi Independent School District v. Cisneros,
p. 404 U. S. 1211
"is in an undesirable state of confusion. . . ."
To begin with, no reasons appear why this application was not
presented to me at an earlier date, assuming that I accept the
explanation tendered for failure to present it to the Court of
Appeals. The time available between receipt of the application and
response and the opening of the school term August 30 was not
sufficient to deal adequately with the complex issues presented.
The application for stay is further weakened by the absence of
specific allegations as to the time of travel or other alleged
hardships involved in the added bus transportation program.
Specific reference to the travel time in
Page 404 U. S. 1227
relation to the age and grade of particular categories of
students is not disclosed. To assert, as the applicants do, that
the "average time" of travel is one hour conveys very little
enlightenment to support an application to stay the order of a
District Court, however reluctantly entered by that court,
especially an order dealing with a school term opening so soon
after the motion was first presented. The "average" travel time may
be generally relevant but whether a given plan trespasses the
limits on school bus transportation indicated in Swann,
402 U.S. at 402 U. S. 29
402 U. S. 30
402 U. S. 31
cannot be determined from a recital of a "one hour average" travel
time. [Footnote 1
The Board's resolution reciting that it was adopting the revised
plan under protest, on an understanding that it was required to
achieve a fixed "racial balance" that reflected the total
composition of the school district is disturbing. It suggests the
possibility that there may be some misreading of the opinion of the
Court in the Swann
case. If the Court of Appeals or the
District Court read this Court's opinion as requiring a fixed
racial balance or quota, it would appear to have overlooked
specific language of the opinion in the Swann
case to the
contrary. Rather than trying to interpret or characterize a holding
of the Court, a function of the Court itself, I set forth verbatim
the issues seen by the Court
Page 404 U. S. 1228
and the essence of the Court's disposition of
"The central issue in this case is that of student assignment,
and there are essentially four problem areas: "
"(1) to what extent racial balance or racial quotas may be used
as an implement in a remedial order to correct a previously
"(2) whether every all-Negro and all-white school must be
eliminated as an indispensable part of a remedial process of
"(3) what the limits are, if any, on the rearrangement of school
districts and attendance zones, as a remedial measure; and"
"(4) what the limits are, if any, on the use of transportation
facilities to correct state-enforced racial school
402 U.S. at 402 U. S. 22
After discussing the problem, the opinion concluded:
"If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right, any
particular degree of racial balance or mixing, that approach
would be disapproved and we would be obliged to reverse.
constitutional command to desegregate schools does not mean that
every school in every community must always reflect the racial
composition of the school system as a whole."
402 U.S. at 402 U. S. 24
(Emphasis added.) Nothing could be plainer, or so I had thought,
disapproval of the 71%-29% racial composition
found in the Swann
case as the controlling factor in
assignment of pupils, simply because that was the racial
composition of the whole school system. Elsewhere in the
opinion we had noted the necessity for a district
court to determine what in fact, was the racial balance as an
obvious and necessary starting point to
Page 404 U. S. 1229
decide whether, in fact, any violation existed; we concluded,
however, that "the very limited use made of mathematical ratios was
within the equitable remedial discretion of the District Court."
402 U.S. at 402 U. S. 25
Since the second aspect of this case falls within the fourth
question postulated by the Court in Swann
it may be useful
to refer to the Court's response to that question. After noting
that 18 million students were transported to schools by bus in this
country in 1969-1970, the Court concluded:
"The importance of bus transportation as a normal and accepted
tool of educational policy is readily discernible in this and the
companion case, Davis, supra.
The Charlotte school
authorities did not purport to assign students on the basis of
geographically drawn zones until 1965, and then they allowed almost
unlimited transfer privileges. The District Court's conclusion that
assignment of children to the school nearest their home serving
their grade would not produce an effective dismantling of the dual
system is supported by the record."
"* * * *"
". . . In these circumstances, we find no basis for holding that
the local school authorities may not be required to employ bus
transportation as one tool of school desegregation. Desegregation
plans cannot be limited to the walk-in school."
"An objection to transportation of students may have validity
when the time or distance of travel is so great as to either risk
the health of the children or significantly impinge on the
educational process. District courts must weigh the soundness of
any transportation plan in light of what is said in subdivisions
(1), (2), and (3) above. It hardly needs stating that the limits on
time of travel will vary
Page 404 U. S. 1230
with many factors, but probably with none more than the age of
the students. The reconciliation of competing values in a
desegregation case is, of course, a difficult task with many
sensitive facets but fundamentally no more so than remedial
measures courts of equity have traditionally employed."
402 U.S. at 402 U. S. 29
No prior case had dealt directly with bus transportation of
students in this context or the limits on the use of transportation
as part of a remedial plan, or with racial balancing.
This case is further complicated by what seems to me some
confusion respecting the standards employed and the findings made
by the District Court and the terms of the remand order of the
Court of Appeals. Under Swann
and related cases of April
20, 1971, as in earlier cases, judicial power can be invoked only
on a showing of discrimination violative of the constitutional
standards declared in Brown v. Board of Education,
347 U. S. 483
(1954). In findings dated June 25, 1970, the District Court sent
the case back to the School Board for changes to eliminate the dual
school system; it approved the plan submitted subject to several
modifications. The modified plan was before the Court of Appeals
when this Court decided the Swann
case. The Court of
Appeals in its remand following the decision in Swann
not reverse the District Court's findings, but, rather, directed
reconsideration in light of Swann.
In the circumstances
that was an appropriate step. The present status of the findings is
not clear to me, but the District Court on reconsideration
following the remand seems to have thought that it was compelled to
achieve a fixed racial balance reflecting the composition of the
total county system. The explicit language of the Court's opinion
suggests a possible confusion on this point. I
Page 404 U. S. 1231
not attempt to construe that language, but simply recite it
"The constitutional command to desegregate schools does not mean
that every school in every community must always reflect the racial
composition of the school system as a whole."
402 U.S. at 402 U. S. 24
On the record now before me it is not possible to conclude with
any assurance that the District Court in its order dated July 26,
1971, and the Court of Appeals in its remand dated June 10, 1971,
did or did not correctly read this Court's holding in
and particularly the explicit language as to a
requirement of fixed mathematical ratios or racial quotas and the
limits suggested as to transportation of students. The record being
inadequate to evaluate these issues, even preliminarily for the
limited purposes of a stay order, and the heavy burden for making
out a case for such extraordinary relief being on the moving
parties, I am unwilling to disturb the order of the District Court
dated July 26, 1971, made pursuant to the remand order of the Court
of Appeals which is sought to be reviewed here. [Footnote 2
The application for stay is denied.
By way of illustration, if the record showed -- to take an
extreme example of a patent violation of Swann
-- that the
average time was three hours daily or that some were compelled to
travel three hours daily when school facilities were available at a
lesser distance, I would not hesitate to stay such an order
forthwith until the Court could act, at least as to the students so
imposed on. The burdens and hardships of travel do not relate to
race; excessive travel is as much a hardship on one race as
another. The feasibility of a transfer program to give relief from
such a patently offensive transportation order as the one
hypothesized, would also be relevant.
In their petition for a writ of certiorari in this Court, the
petitioners have elected to seek review here of the remand order of
the Court of Appeals of June 10, 1971, rather than having the
substantive order of the District Court dated July 26, 1971, first
reviewed in the Court of Appeals.