Application for stay, pending consideration of a petition for
certiorari, of Court of Appeals' judgment and mandate affirming an
extensive desegregation order for the Columbus, Ohio, public school
system is granted, where it appears that such order will place
severe burdens, financial and otherwise, on the school system and
the community in general and that it is likely that four Justices
of the Court will vote to grant certiorari.
583 F.2d 787.
MR. JUSTICE REHNQUIST.
The Columbus, Ohio, Board of Education and the Superintendent of
the Columbus public schools request that I stay execution of the
judgment and the mandate of the Court of Appeals for the Sixth
Circuit and execution of the judgment of the United States District
Court for the Southern District of Ohio in this case pending
consideration by this Court of their petition for certiorari. The
Court of Appeals' judgment at issue affirmed findings of systemwide
violations of the Equal Protection Clause of the Fourteenth
Amendment on the part of the Columbus Board of Education, and
upheld an extensive school desegregation plan for the Columbus
school system. The remedy will require reassignment of 42,000
students; alteration of the grade organization of almost every
elementary school in the Columbus system; the closing of 33
schools; reassignment of teachers, staff, and administrators; and
the transportation of over 37,000 students. The 1978-1979 school
year begins on September 7, and the applicants maintain that
failure to stay immediately the judgment and mandate of the Court
of Appeals will cause immeasurable and irreversible harm to the
school system and the community.
Page 439 U. S. 1349
The respondents are individual plaintiffs and a plaintiff class
consisting of all children attending Columbus public schools,
together with their parents and guardians.
This stay application comes to me after extensive and
complicated litigation. On March 8, 1977, the District Court for
the Southern District of Ohio issued an opinion declaring the
Columbus school system unconstitutionally segregated and ordering
the defendants to develop and submit proposals for a systemwide
remedy. 429 F.
. That decision predated this Court's opinions in
three important school desegregation cases: Dayton Board of
Education v. Brinkman, 433 U. S. 406
(1977); Brennan v. Armstrong, 433 U.
(1977); and School District of Omaha v.
United States, 433 U. S. 667
(1977). In the lead case, Dayton,
this Court held that,
when fashioning a remedy for constitutional violations by a school
board, the court
"must determine how much incremental segregative effect these
violations had on the racial distribution of the . . . 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, and only if there has been a systemwide impact may
there be a systemwide remedy."
433 U.S. at 433 U. S. 420
The defendants moved that the District Court reconsider its
violation findings and adjust its remedial order in light of our
opinion. Upon such reconsideration, the District
Court concluded that Dayton
simply restated the
established precept that the remedy must not exceed the scope of
the violation. Since it had found a systemwide violation, the
District Court deemed a systemwide remedy appropriate without the
specific findings mandated by Dayton
on the impact
discrete segregative acts had on the racial composition of
individual schools within the system. The Sixth Circuit affirmed.
583 F.2d 787 (1978).
Prior to its submission to me, this application for stay was
denied by MR. JUSTICE STEWART. While I am naturally reluctant to
take action in this matter different from that
Page 439 U. S. 1350
taken by him, this case has come to me in a special context.
Four days before the application for stay was filed in this Court,
the Sixth Circuit issued its opinion in the Dayton
Brinkman v. Gilligan,
583 F.2d 243 (1978) (Dayton
). Pursuant to this Court's opinion in Dayton,
District Court for the Southern District of Ohio had held a new
evidentiary hearing on the scope of any constitutional violations
by the Dayton school board and the appropriate remedy with regard
to those violations. It had concluded that Dayton required a
finding of segregative intent with respect to each violation and a
remedy drawn to correct the incremental segregative impact of each
violation. On that basis, the District Court had found no
constitutional violations and had dismissed the complaint. The
Sixth Circuit reversed, characterizing as a "misunderstanding" the
District Court's reading of our Dayton
at 246. It reinstated the systemwide remedy that it
had originally affirmed in Brinkman v. Gilligan,
1084 (1976) (Dayton III
), vacated and remanded sub
nom. Dayton Board of Education v. Brinkman, 433 U.
and the instant case clearly indicate to me
that the Sixth Circuit has misinterpreted the mandate of this
opinion. During the Term of the Court, I
would refer the application for a stay in a case as significant as
this one to the full Court. But that is impossible here. The
opinions of the District Court and the Court of Appeals total
almost 200 pages of some complexity. It would be impracticable for
me to even informally circularize my colleagues, with an
opportunity for meaningful analysis, within the time necessary to
act if the applicants are to be afforded any relief and the
Columbus community's expectations adjusted for the coming school
I am of the opinion that the Sixth Circuit, in this case,
evinced an unduly grudging application of Dayton.
the fact that three Justices of this Court might agree with me
Page 439 U. S. 1351
would not necessarily mean that the petition for certiorari
would be granted. But this case cannot be considered without
reference to the Sixth Circuit's opinion in Dayton IV.
both cases the Court of Appeals employed legal presumptions of
intent to extrapolate systemwide violations from what was described
in the Columbus case as "isolated" instances. 583 F.2d at 805. The
Sixth Circuit is apparently of the opinion that presumptions, in
combination with such isolated violations, can be used to justify a
systemwide remedy where such a remedy would not be warranted by the
incremental segregative effect of the identified violations. That
is certainly not my reading of Dayton,
and it appears
inconsistent with this Court's decision to vacate and remand the
Sixth Circuit's opinion in Dayton III.
In my opinion, this
questionable use of legal presumptions, combined with the fact that
the Dayton and Columbus cases involve transportation of over 52,000
schoolchildren, would lead four Justices of this Court to vote to
grant certiorari in at least one case and hold the other in
abeyance until disposition of the first.
On the basis of the District Court's findings, some relief may
be justified in this case under the principles laid down in
Two instances where the school system set up
discontiguous attendance areas that resulted in white children
being transported past predominantly black schools may be clear
violations warranting relief. But the failure of the District Court
and the Court of Appeals to make any findings on the incremental
segregative effect of these violations makes it impossible for me
to tailor a stay to allow the applicants a more limited form of
In their response, the plaintiffs/respondents also take an "all
or nothing" approach and do not offer any suggestions as to how the
mandate and judgment of the Court of Appeals can be stayed only in
part consistent with the applicant' legal contentions. I therefore
have no recourse but to grant or deny the stay of the mandate and
judgment in its entirety.
Page 439 U. S. 1352
The last inquiry in gauging the appropriateness of a stay is the
balance of equities. If the stay is granted the respondent
children's opportunity for a more integrated educational experience
is forestalled. How many children and how integrated an educational
experience are impossible to discern, because of the failure of the
courts below to inquire how the complexion of the school system was
affected by specific violations.
In contrast, the impact of the failure to grant a stay on the
applicants is quite concrete. Extensive preparations toward
implementation of the desegregation plan have taken place, but an
affidavit filed in this Court by the Superintendent of the Columbus
public schools indicates that major activities remain for the four
weeks before the new school term begins. These activities include
inventory, packing, and moving of furniture, textbooks, equipment,
and supplies; completion of pupil reassignments, bus routes and
schedules, and staff and administrative reassignments; construction
of bus storage and maintenance facilities; hiring and training of
new bus drivers; and notification to parents of pupil reassignments
and bus information. Such activities cannot be easily reversed.
Most important, on September 7, there will occur the personal
dislocations that accompany the actual reassignment of 42,000
students, 37,000 of whom will be transported by bus.
The Columbus school system has severe financial difficulties. It
is estimated that, for calendar year 1978, the system will have a
cash deficit of $9.5 million, $7.3 million of which is calculated
to be desegregation expenses. Under Ohio law, school districts are
not permitted to operate when cash balances fall to zero, and it is
now projected that the Columbus school system will be forced to
close in mid-November, 1978. Financial exigency is not an excuse
for failure to comply with a court order, but it is a relevant
consideration in balancing the equities of a temporary stay.
Given the severe burdens that the school desegregation order
Page 439 U. S. 1353
will place on the Columbus school system and the Columbus
community in general, and the likelihood that four Justices of this
Court will vote to grant certiorari in this case, I have decided to
grant the stay of the judgment and mandate of the Court of Appeals
for the Sixth Circuit and the judgment of the District Court.
As this Court noted in Dayton,
"local autonomy of
school districts is a vital national tradition." 433 U.S. at
433 U. S. 410
School desegregation orders are among the most sensitive
encroachments on that tradition, not only because they affect the
assignment of pupils and teachers, but also because they often
restructure the system of education. In this case, the
desegregation order requires alteration of the grade organization
of virtually every elementary school in Columbus. As this Court
emphasized in Dayton,
judicial imposition on this
established province of the community is only proper in the face of
factual proof of constitutional violations and then only to the
extent necessary to remedy the effect of those violations.
It is therefore ordered that the application for a stay of the
judgment and mandate of the Court of Appeals for the Sixth Circuit
and the judgment of the District Court for the Southern District of
Ohio be granted pending consideration of a timely petition for
certiorari. The stay is to remain in effect until disposition of
the petition for certiorari. If the petition is granted, the stay
shall remain in effect until further order of this Court.