Petitioners sought desegregation of the Park Hill area schools
in Denver and, upon securing an order of the District Court
directing that relief, expanded their suit to secure desegregation
of the remaining schools of the Denver school district,
particularly those in the core city area. The District Court denied
the further relief, holding that the deliberate racial segregation
of the Park Hill schools did not prove a like segregation policy
addressed specifically to the core city schools and requiring
petitioners to prove
de jure segregation for each area
that they sought to have desegregated. That court nevertheless
found that the segregated core city schools were educationally
inferior to "white" schools elsewhere in the district and, relying
on
Plessy v. Ferguson, 163 U. S. 537,
ordered the respondents to provide substantially equal facilities
for those schools. This latter relief was reversed by the Court of
Appeals, which affirmed the Park Hill ruling and agreed that Park
Hill segregation, even though deliberate, proved nothing regarding
an overall policy of segregation.
Held:
1. The District Court, for purposes of defining a "segregated"
core city school, erred in not placing Negroes and Hispanos in the
same category, since both groups suffer the same educational
inequities when compared with the treatment afforded Anglo
students. Pp. 195-198.
2. The courts below did not apply the correct legal standard in
dealing with petitioners' contention that respondent School Board
had the policy of deliberately segregating the core city schools.
Pp.
413 U. S.
198-213.
(a) Proof that the school authorities have pursued an
intentional segregative policy in a substantial portion of the
school district will support a finding by the trial court of the
existence of a dual system, absent a showing that the district is
divided into clearly unrelated units. Pp.
413 U. S.
201-203.
(b) On remand, the District Court should decide initially
whether respondent School Board's deliberately segregative
policy
Page 413 U. S. 190
respecting the Park Hill schools constitutes the whole Denver
school district a dual school system. Pp.
413 U. S.
204-205.
(c) Where, as in this case, a policy of intentional segregation
has been proved with respect to a significant portion of the school
system, the burden is on the school authorities (regardless of
claims that their "neighborhood school policy" was racially
neutral) to prove that their actions as to other segregated schools
in the system were not likewise motivated by a segregative intent.
Pp.
413 U. S.
207-213.
445 F.2d 990, modified and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J.,
filed a separate opinion,
post, p.
413 U. S. 214.
BURGER, C.J., concurred in the result. POWELL, J., filed an opinion
concurring in part and dissenting in part,
post, p.
413 U. S. 217.
REHNQUIST, J., filed a dissenting opinion,
post, p.
413 U. S. 254.
WHITE, J., took no part in the decision of the case.
Page 413 U. S. 191
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This school desegregation case concerns the Denver, Colorado,
school system. That system has never been operated under a
constitutional or statutory provision that mandated or permitted
racial segregation in public education. [
Footnote 1] Rather, the gravamen of this action,
brought in June, 1969, in the District Court for the District of
Colorado by parents of Denver schoolchildren, is that respondent
School Board alone, by use of various techniques such as the
manipulation of student attendance zones, schoolsite selection and
a neighborhood school policy, created or maintained racially or
ethnically (or both racially and ethnically) segregated schools
throughout the school district, entitling petitioners to a decree
directing desegregation of the entire school district.
The boundaries of the school district are coterminous with the
boundaries of the city and county of Denver. There were, in 1969,
119 schools [
Footnote 2] with
96,580 pupils
Page 413 U. S. 192
in the school system. In early 1969, the respondent School Board
adopted three resolutions, Resolutions 1520, 1524, and 1531,
designed to desegregate the schools in the Park Hill area in the
northeast portion of the city. Following an election which produced
a Board majority opposed to the resolutions, the resolutions were
rescinded and replaced with a voluntary student transfer program.
Petitioners then filed this action, requesting an injunction
against the rescission of the resolutions and an order directing
that the respondent School Board desegregate and afford equal
educational opportunity "for the School District as a whole." App.
32a. The District Court found that, by the construction of a new,
relatively small elementary school, Barrett, in the middle of the
Negro community west of Park Hill, by the gerrymandering of student
attendance zones, by the use of so-called "optional zones," and by
the excessive use of mobile classroom units, among other things,
the respondent School Board had engaged over almost a decade after
1960 in an unconstitutional policy of deliberate racial segregation
with respect to the Park Hill schools. [
Footnote 3] The court therefore ordered the Board to
desegregate those schools through the implementation of the three
rescinded resolutions.
303 F.
Supp. 279 and 289 (1969).
Segregation in Denver schools is not limited, however, to the
schools in the Park Hill area, and, not satisfied with their
success in obtaining relief for Park Hill, petitioners pressed
their prayer that the District Court order desegregation of all
segregated schools in the city of Denver, particularly the heavily
segregated schools in the core city area. [
Footnote 4] But that court concluded that its
Page 413 U. S. 193
finding of a purposeful and systematic program of racial
segregation affecting thousands of students in the Park Hill area
did not, in itself, impose on the School Board an affirmative duty
to eliminate segregation throughout the school district. Instead,
the court fractionated the district and held that petitioners had
to make a fresh showing of
de jure segregation in each
area of the city for which they sought relief. Moreover, the
District Court held that its finding of intentional segregation in
Park Hill was not in any sense material to the question of
segregative intent in other areas of the city. Under this
restrictive approach, the District Court concluded that
petitioners' evidence of intentionally discriminatory School Board
action in areas of the district other than Park Hill was
insufficient to
"dictate the conclusion that this is
de jure
segregation which calls for an all-out effort to desegregate. It is
more like
de facto segregation, with respect to which the
rule is that the court cannot order desegregation in order to
provide a better balance."
313 F.
Supp. 61, 73 (1970).
Nevertheless, the District Court went on to hold that the proofs
established that the segregated core city schools were
educationally inferior to the predominantly "white" or "Anglo"
schools in other parts of the district -- that is, "separate
facilities . . . unequal in the quality of education provided."
Id. at 83. Thus, the court held that, under the doctrine
of
Plessy v. Ferguson, 163 U. S. 537
(1896), respondent School Board constitutionally "must at a minimum
. . . offer an equal educational opportunity," 313 F. Supp. at 83,
and, therefore,
Page 413 U. S. 194
although all-out desegregation
"could not be decreed, . . . the only feasible and
constitutionally acceptable program -- the only program which
furnishes anything approaching substantial equality -- is a system
of desegregation and integration which provides compensatory
education in an integrated environment."
313 F.
Supp. 90, 96 (1970). The District Court then formulated a
varied remedial plan to that end which was incorporated in the
Final Decree. [
Footnote 5]
Respondent School Board appealed, and petitioners
cross-appealed, to the Court of Appeals for the Tenth Circuit. That
court sustained the District Court's finding that the Board had
engaged in an unconstitutional policy of deliberate racial
segregation with respect to the Park Hill schools, and affirmed the
Final Decree in that respect. As to the core city schools, however,
the Court of Appeals reversed the legal determination of the
District Court that those schools were maintained in violation
Page 413 U. S. 195
of the Fourteenth Amendment because of the unequal educational
opportunity afforded, and therefore set aside so much of the Final
Decree as required desegregation and educational improvement
programs for those schools. 445 F.2d 990 (1971). In reaching that
result, the Court of Appeals also disregarded respondent School
Board's deliberate racial segregation policy respecting the Park
Hill schools and accepted the District Court's finding that
petitioners had not proved that respondent had a like policy
addressed specifically to the core city schools.
We granted petitioners' petition for certiorari to review the
Court of Appeals' judgment insofar as it reversed that part of the
District Court's Final Decree as pertained to the core city
schools. 404 U.S. 1036 (1972). The judgment of the Court of Appeals
in that respect is modified to vacate instead of reverse the Final
Decree. The respondent School Board has cross-petitioned for
certiorari to review the judgment of the Court of Appeals insofar
as it affirmed that part of the District Court's Final Decree as
pertained to the Park Hill schools. Docket No. 71-572,
School
District No. 1 v. Keyes. The cross-petition is denied.
I
Before turning to the primary question we decide today, a word
must be said about the District Court's method of defining a
"segregated" school. Denver is a tri-ethnic, as distinguished from
a bi-racial, community. The overall racial and ethnic composition
of the Denver public schools is 66% Anglo, 14% Negro, and 20%
Hispano. [
Footnote 6] The
District Court, in assessing the question of
Page 413 U. S. 196
de jure segregation in the core city schools,
preliminarily resolved that Negroes and Hispanos should not be
placed in the same category to establish the segregated character
of a school. 313 F. Supp. at 69. Later, in determining the schools
that were likely to produce an inferior educational opportunity,
the court concluded that a school would be considered inferior only
if it had "a concentration of either Negro or Hispano students in
the general area of 70 to 75 percent."
Id. at 77. We
intimate no opinion whether the District Court's 70%-to-75%
requirement was correct. The District Court used those figures to
signify educationally inferior schools, and there is no suggestion
in the record that those same figures were or would be used to
define a "segregated" school in the
de jure context. What
is or is not a segregated school will necessarily depend on the
facts of each particular case. In addition to the racial and ethnic
composition of a school's student body, other factors, such as the
racial and ethnic composition of faculty and staff and the
community and administration attitudes toward the school, must be
taken into consideration. The District Court has recognized these
specific factors as elements of the definition of a "segregated"
school,
id. at 74, and we may therefore infer that the
court will consider them again on remand.
Page 413 U. S. 197
We conclude, however, that the District Court erred in
separating Negroes and Hispanos for purposes of defining a
"segregated" school. We have held that Hispanos constitute an
identifiable class for purposes of the Fourteenth Amendment.
Hernandez v. Texas, 347 U. S. 475
(1954).
See also United States v. Texas Education Agency,
467 F.2d 848 (CA5 1972) (en banc);
Cisneros v. Corpus Christi
Independent School District, 467 F.2d 142 (CA5 1972) (en
banc);
Alvarado v. El Paso Independent School District,
445 F.2d 1011 (CA5 1971);
Soria v. Oxnard School
District, 328 F.
Supp. 155 (CD Cal.1971);
Romero v. Weakley, 226 F.2d
399 (CA9 1955). Indeed, the District Court recognized this in
classifying predominantly Hispano schools as "segregated" schools
in their own right. But there is also much evidence that, in the
Southwest, Hispanos and Negroes have a great many things in common.
The United States Commission on Civil Rights has recently published
two Reports on Hispano education in the Southwest. [
Footnote 7] Focusing on students in the
States of Arizona, California, Colorado, New Mexico, and Texas, the
Commission concluded that Hispanos suffer from the same educational
inequities as Negroes and American Indians. [
Footnote 8] In fact, the District Court itself
recognized that "[o]ne of the things which the Hispano has in
common with the Negro is economic and cultural deprivation
Page 413 U. S. 198
and discrimination." 313 F. Supp. at 69. This is agreement that,
though of different origins, Negroes and Hispanos in Denver suffer
identical discrimination in treatment when compared with the
treatment afforded Anglo students. In that circumstance, we think
petitioners are entitled to have schools with a combined
predominance of Negroes and Hispanos included in the category of
"segregated" schools.
II
In our view, the only other question that requires our decision
at this time is that subsumed in Question 2 of the questions
presented by petitioners, namely, whether the District Court and
the Court of Appeals applied an incorrect legal standard in
addressing petitioners' contention that respondent School Board
engaged in an unconstitutional policy of deliberate segregation in
the core city schools. Our conclusion is that those courts did not
apply the correct standard in addressing that contention. [
Footnote 9]
Petitioners apparently concede for the purposes of this case
that, in the case of a school system like Denver's, where no
statutory dual system has ever existed, plaintiffs must prove not
only that segregated schooling exists but also that it was brought
about or maintained by intentional state action. Petitioners proved
that, for almost a decade after 1960, respondent School Board had
engaged in an unconstitutional policy of deliberate racial
segregation in the Park Hill schools. Indeed, the District Court
found that,
"[b]etween 1960 and 1969 the Board's policies
Page 413 U. S. 199
with respect to these northeast Denver schools show an
undeviating purpose to isolate Negro students"
in segregated schools "while preserving the Anglo character of
[other] schools." 303 F. Supp. at 294. This finding did not relate
to an insubstantial or trivial fragment of the school system. On
the contrary, respondent School Board was found guilty of following
a deliberate segregation policy at schools attended, in 1969, by
37.69% of Denver's total Negro school population, including
one-fourth of the Negro elementary pupils, over two-thirds of the
Negro junior high pupils, and over two-fifths of the Negro high
school pupils. [
Footnote 10]
In addition,
Page 413 U. S. 200
there was uncontroverted evidence that teachers and staff had
for years been assigned on the basis of a minority teacher to a
minority school throughout the school system. Respondent argues,
however, that a finding of state-imposed segregation as to a
substantial portion of the school system can be viewed in isolation
from the rest of the district, and that, even if state-imposed
segregation does exist in a substantial part of the Denver school
system, it does not follow that the District Court could predicate
on that fact a finding that the entire school system is a dual
system. We do not agree. We have never suggested that plaintiffs in
school desegregation cases must bear the burden of proving the
elements of
de jure segregation as to each and every
school or each and every student within the school system. Rather,
we have held that, where plaintiffs prove that a current condition
of segregated schooling exists within a school district where a
dual system was compelled or authorized by statute at the time of
our decision in
Brown v. Board of Education, 347 U.
S. 483 (1954) (
Brown I), the State
automatically assumes an affirmative duty "to effectuate a
transition to a racially nondiscriminatory school system,"
Brown v. Board of Education, 349 U.
S. 294,
349 U. S. 301
(1955) (
Brown II),
see also Green v. County School
Board, 391 U. S. 430,
391 U. S.
437-438 (1968), that is, to eliminate from the public
schools within their school system "all vestiges of state-imposed
segregation."
Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1,
402 U. S. 15
(1971). [
Footnote 11]
Page 413 U. S. 201
This is not a case, however, where a statutory dual system has
ever existed. Nevertheless, where plaintiffs prove that the school
authorities have carried out. a systematic program of segregation
affecting a substantial portion of the students, schools, teachers,
and facilities within the school system, it is only common sense to
conclude that there exists a predicate for a finding of the
existence of a dual school system. Several considerations support
this conclusion. First, it is obvious that a practice of
concentrating Negroes in certain schools by structuring attendance
zones or designating "feeder" schools on the basis of race has the
reciprocal effect of keeping other nearby schools predominantly
white. [
Footnote 12]
Similarly, the practice of building a school -- such as the Barrett
Elementary School in this case -- to a certain size and in a
certain location, "with conscious knowledge that it would
Page 413 U. S. 202
be a segregated school," 303 F. Supp. at 285, has a substantial
reciprocal effect on the racial composition of other nearby
schools. So also, the use of mobile classrooms, the drafting of
student transfer policies, the transportation of students, and the
assignment of faculty and staff, on racially identifiable bases
have the clear effect of earmarking schools according to their
racial composition, and this, in turn, together with the elements
of student assignment and school construction, may have a profound
reciprocal effect on the racial composition of residential
neighborhoods within a metropolitan area, thereby causing further
racial concentration within the schools. We recognized this in
Swann when we said:
"They [school authorities] must decide questions of location and
capacity in light of population growth, finances, land values, site
availability, through an almost endless list of factors to be
considered. The result of this will be a decision which, when
combined with one technique or another of student assignment, will
determine the racial composition of the student body in each school
in the system. Over the long run, the consequences of the choices
will be far-reaching. People gravitate toward school facilities,
just as schools are located in response to the needs of people. The
location of schools may thus influence the patterns of residential
development of a metropolitan area and have important impact on
composition of inner-city neighborhoods."
"In the past, choices in this respect have been used as a potent
weapon for creating or maintaining a state-segregated school
system. In addition to the classic pattern of building schools
specifically intended for Negro or white students, school
authorities have sometimes, since
Brown, closed
schools
Page 413 U. S. 203
which appeared likely to become racially mixed through changes
in neighborhood residential patterns. This was sometimes
accompanied by building new schools in the areas of white suburban
expansion farthest from Negro population centers in order to
maintain the separation of the races with a minimum departure from
the formal principles of 'neighborhood zoning.' Such a policy does
more than simply influence the short-run composition of the student
body of a new school. It may well promote segregated residential
patterns which, when combined with 'neighborhood zoning,' further
lock the school system into the mold of separation of the races.
Upon a proper showing, a district court may consider this in
fashioning a remedy."
402 U.S. at
402 U. S.
20-21.
In short, common sense dictates the conclusion that racially
inspired school board actions have an impact beyond the particular
schools that are the subjects of those actions. This is not to say,
of course, that there can never be a case in which the geographical
structure of, or the natural boundaries within, a school district
may have the effect of dividing the district into separate,
identifiable and unrelated units. Such a determination is
essentially a question of fact to be resolved by the trial court in
the first instance, but such cases must be rare. In the absence of
such a determination, proof of state-imposed segregation in a
substantial portion of the district will suffice to support a
finding by the trial court of the existence of a dual system. Of
course, where that finding is made, as in cases involving statutory
dual systems, the school authorities have an affirmative duty "to
effectuate a transition to a racially nondiscriminatory school
system."
Brown II, supra, at
349 U. S.
301.
Page 413 U. S. 204
On remand, therefore, the District Court should decide in the
first instance whether respondent School Board's deliberate racial
segregation policy with respect to the Park Hill schools
constitutes the entire Denver school system a dual school system.
We observe that, on the record now before us, there is indication
that Denver is not a school district which might be divided into
separate, identifiable and unrelated units. The District Court
stated, in its summary of findings as to the Park Hill schools,
that there was
"a high degree of interrelationship among these schools, so that
any action by the Board affecting the racial composition of one
would almost certainly have an effect on the others."
303 F. Supp. at 294. And there was cogent evidence that the
ultimate effect of the Board's actions in Park Hill was not limited
to that area: the three 1969 resolutions designed to desegregate
the Park Hill schools changed the attendance patterns of at least
29 schools attended by almost one-third of the pupils in the Denver
school system. [
Footnote 13]
This suggests that the official segregation in Park Hill affected
the racial composition of schools throughout the district.
On the other hand, although the District Court did not state
this, or indeed any, reason why the Park Hill finding was
disregarded when attention was turned to the core city schools --
beyond saying that the Park Hill and core city areas were in its
view "different" -- the areas, although adjacent to each other, are
separated by Colorado Boulevard, a six-lane highway. From the
record, it is difficult to assess the actual significance of
Colorado Boulevard to the Denver school system. The Boulevard runs
the length of the school district, but at
Page 413 U. S. 205
least two elementary schools, Teller and Steck, have attendance
zones which cross the Boulevard. Moreover, the District Court,
although referring to the Boulevard as "a natural dividing line,"
303 F. Supp. at 282, did not feel constrained to limit its
consideration of
de jure segregation in the Park Hill area
to those schools east of the Boulevard. The court found that, by
building Barrett Elementary School west of the Boulevard and by
establishing the Boulevard as the eastern boundary of the Barrett
attendance zone, the Board was able to maintain for a number of
years the Anglo character of the Park Hill schools. This suggests
that Colorado Boulevard is not to be regarded as the type of
barrier that, of itself, could confine the impact of the Board's
actions to an identifiable area of the school district, perhaps
because a major highway is generally not such an effective buffer
between adjoining areas.
Cf. Davis v. Board of School
Commissioners of Mobile County, 402 U. S.
33 (1971). But this is a factual question for resolution
by the District Court on remand. In any event, inquiry whether the
District Court and the Court of Appeals applied the correct legal
standards in addressing petitioners' contention of deliberate
segregation in the core city schools is not at an end even if it be
true that Park Hill may be separated from the rest of the Denver
school district as a separate, identifiable, and unrelated
unit.
III
The District Court proceeded on the premise that the finding as
to the Park Hill schools was irrelevant to the consideration of the
rest of the district, and began its examination of the core city
schools by requiring that petitioners prove all of the essential
elements of
de jure segregation -- that is, stated simply,
a current condition of segregation resulting from intentional state
action
Page 413 U. S. 206
directed specifically to the core city schools. [
Footnote 14] The segregated character of
the core city schools could not be and is not denied. Petitioners'
proof showed that, at the time of trial 22 of the schools in the
core city area were less than 30% in Anglo enrollment and 11 of the
schools were less than 10% Anglo. [
Footnote 15] Petitioners also introduced substantial
evidence demonstrating the existence of a disproportionate racial
and ethnic composition of faculty and staff at these schools. On
the question of segregative intent, petitioners presented evidence
tending to show that the Board, through its actions over a period
of years, intentionally created and maintained the segregated
character of the core city schools. Respondents countered this
evidence by arguing that the segregation in these schools is the
result of a racially neutral "neighborhood school policy"
Page 413 U. S. 207
and that the acts of which petitioners complain are explicable
within the bounds of that policy. Accepting the School Board's
explanation, the District Court and the Court of Appeals agreed
that a finding of
de jure segregation as to the core city
schools was not permissible, since petitioners had failed to
prove
"(1) a racially discriminatory purpose and (2) a causal
relationship between the acts complained of and the racial
imbalance admittedly existing in those schools."
445 F.2d at 1006. This assessment of petitioners' proof was
clearly incorrect.
Although petitioners had already proved the existence of
intentional school segregation in the Park Hill schools, this
crucial finding was totally ignored when attention turned to the
core city schools. Plainly, a finding of intentional segregation as
to a portion of a school system is not devoid of probative value in
assessing the school authorities' intent with respect to other
parts of the same school system. On the contrary, where, as here,
the case involves one school board, a finding of intentional
segregation on its part in one portion of a school system is highly
relevant to the issue of the board's intent with respect to other
segregated schools in the system. This is merely an application of
the well-settled evidentiary principle that
"the prior doing of other similar acts, whether clearly a part
of a scheme or not, is useful as reducing the possibility that the
act in question was done with innocent intent."
2 J. Wigmore, Evidence 200 (3d ed.1940).
"Evidence that similar and related offenses were committed . . .
tend[s] to show a consistent pattern of conduct highly relevant to
the issue of intent."
Nye & Nissen v. United States, 336 U.
S. 613,
336 U. S. 618
(1949). Similarly, a finding of illicit intent as to a meaningful
portion of the item under consideration has substantial probative
value on the question of illicit intent as to
Page 413 U. S. 208
the remainder.
See, for example, the cases cited in 2
Wigmore,
supra, at 301-302. And " [t]he foregoing
principles are equally as applicable to civil eases as to criminal
cases. . . ."
Id. at 300.
See also C. McCormick,
Evidence 329 (1954).
Applying these principles in the special context of school
desegregation cases, we hold that a finding of intentionally
segregative school board actions in a meaningful portion of a
school system, as in this case, creates a presumption that other
segregated schooling within the system is not adventitious. It
establishes, in other words, a
prima facie case of
unlawful segregative design on the part of school authorities, and
shifts to those authorities the burden of proving that other
segregated schools within the system are not also the result of
intentionally segregative actions. This is true even if it is
determined that different areas of the school district should be
viewed independently of each other, because, even in that
situation, there is high probability that, where school authorities
have effectuated an intentionally segregative policy in a
meaningful portion of the school system, similar impermissible
considerations have motivated their actions in other areas of the
system. We emphasize that the differentiating factor between
de
jure segregation and so-called
de facto segregation
to which we referred in
Swann [
Footnote 16] is purpose or intent to segregate. Where
school authorities have been found to have practiced purposeful
segregation in part of a school system, they may be expected to
oppose system-wide desegregation, as did the respondents in this
case, on the ground that their purposefully segregative actions
were isolated and individual events, thus leaving plaintiffs with
the burden of proving otherwise. But at that point where an
intentionally segregative
Page 413 U. S. 209
policy is practiced in a meaningful or significant segment of a
school system, as in this case, the school authorities cannot be
heard to argue that plaintiffs have proved only "isolated and
individual" unlawfully segregative actions. In that circumstance,
it is both fair and reasonable to require that the school
authorities bear the burden of showing that their actions as to
other segregated schools within the system were not also motivated
by segregative intent.
This burden-shifting principle is not new or novel. There are no
hard-and-fast standards governing the allocation of the burden of
proof in every situation. The issue, rather, "is merely a question
of policy and fairness based on experience in the different
situations." 9 J. Wigmore, Evidence ยง 2486, at 275 (3d ed.1940). In
the context of racial segregation in public education, the courts,
including this Court, have recognized a variety of situations in
which "fairness" and "policy" require state authorities to bear the
burden of explaining actions or conditions which appear to be
racially motivated. Thus, in
Swann, 402 U.S. at
402 U. S. 18, we
observed that, in a system with a "history of segregation,"
"where it is possible to identify a 'white school' or a 'Negro
school' simply by reference to the racial composition of teachers
and staff, the quality of school buildings and equipment, or the
organization of sports activities, a
prima facie case of
violation of substantive constitutional rights under the Equal
Protection Clause is shown."
Again, in a school system with a history of segregation, the
discharge of a disproportionately large number of Negro teachers
incident to desegregation "thrust[s] upon the School Board the
burden of justifying its conduct by clear and convincing evidence."
Chambers v. Hendersonville City Board of Education, 364
F.2d 189, 192 (CA4 1966) (en banc).
See also United States v.
Jefferson County Board of Education, 372 F.2d
Page 413 U. S. 210
836, 887-888 (CA5 1966),
aff'd en banc, 380 F.2d 385
(1967);
North Carolina Teachers Assn. v. Asheboro City Board of
Education, 393 F.2d 736, 743 (CA4 1968) (en banc);
Williams v. Kimbrough, 295 F.
Supp. 578, 585 (WD La.1969);
Bonner v. Texas City
Independent School District, 305 F.
Supp. 600, 621 (SD Tex.1969). Nor is this burden-shifting
principle limited to former statutory dual systems.
See, e.g.,
Davis v. School District of the City of
Pontiac, 309 F.
Supp. 734, 743, 744 (ED Mich.1970),
aff'd, 443 F.2d
573 (CA6 1971);
United States v. School District No.
151, 301 F.
Supp. 201, 228 (ND Ill.1969),
modified on other
grounds, 432 F.2d 1147 (CA7 1970). Indeed, to say that a
system has a "history of segregation" is merely to say that a
pattern of intentional segregation has been established in the
past. Thus, be it a statutory dual system or an allegedly unitary
system where a meaningful portion of the system is found to be
intentionally segregated, the existence of subsequent or other
segregated schooling within the same system justifies a rule
imposing on the school authorities the burden of proving that this
segregated schooling is not also the result of intentionally
segregative acts.
In discharging that burden, it is not enough, of course, that
the school authorities rely upon some allegedly logical, racially
neutral explanation for their actions. Their burden is to adduce
proof sufficient to support a finding that segregative intent was
not among the factors that motivated their actions. The courts
below attributed much significance to the fact that many of the
Board's actions in the core city area antedated our decision in
Brown. We reject any suggestion that remoteness in time
has any relevance to the issue of intent. If the actions of school
authorities were to any degree motivated by segregative intent and
the segregation resulting from those actions continues to exist,
the fact of remoteness
Page 413 U. S. 211
in time certainly does not make those actions any less
"intentional."
This is not to say, however, that the
prima facie case
may not be met by evidence supporting a finding that a lesser
degree of segregated schooling in the core city area would not have
resulted even if the Board had not acted as it did. In
Swann, we suggested that, at some point in time, the
relationship between past segregative acts and present segregation
may become so attenuated as to be incapable of supporting a finding
of
de jure segregation warranting judicial intervention.
402 U.S. at
402 U. S. 31-32.
See also Hobson v. Hansen, 269 F.
Supp. 401, 495 (DC 1967),
aff'd sub nom. Smuck v.
Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969). [
Footnote 17] We made it clear,
however, that a connection between past segregative acts and
present segregation may be present even when not apparent and that
close examination is required before concluding that the connection
does not exist. Intentional school segregation in the past may have
been a factor in creating a natural environment for the growth of
further segregation. Thus, if respondent School Board cannot
disprove segregative intent, it can rebut the
prima facie
case only by showing that its past segregative acts did not create
or contribute to the current segregated condition of the core city
schools.
The respondent School Board invoked at trial its "neighborhood
school policy" as explaining racial and ethnic concentrations
within the core city schools, arguing
Page 413 U. S. 212
that, since the core city area population had long been Negro
and Hispano, the concentrations were necessarily the result of
residential patterns, and not of purposefully segregative policies.
We have no occasion to consider in this case whether a
"neighborhood school policy," of itself, will justify racial or
ethnic concentrations in the absence of a finding that school
authorities have committed acts constituting
de jure
segregation. It is enough that we hold that the mere assertion of
such a policy is not dispositive where, as in this case, the school
authorities have been found to have practiced
de jure
segregation in a meaningful portion of the school system by
techniques that indicate that the "neighborhood school" concept has
not been maintained free of manipulation. Our observations in
Swann,
supra, at
413 U. S. 28,
are particularly instructive on this score:
"Absent a constitutional violation there would be no basis for
judicially ordering assignment of students on a racial basis. All
things being equal, with no history of discrimination, it might
well be desirable to assign pupils to schools nearest their homes.
But all things are not equal in a system that has been deliberately
constructed and maintained to enforce racial segregation. . .
."
". . . 'Racially neutral' assignment plans proposed by school
authorities to a district court may be inadequate; such plans may
fail to counteract the continuing effects of past school
segregation resulting from discriminatory location of school sites
or distortion of school size in order to achieve or maintain an
artificial racial separation. When school authorities present a
district court with a 'loaded game board,' affirmative action in
the form of remedial altering of attendance zones is proper to
achieve truly nondiscriminatory assignments. In short, an
assignment plan is not acceptable simply because it appears to be
neutral. "
Page 413 U. S. 213
Thus, respondent School Board having been found to have
practiced deliberate racial segregation in schools attended by over
one-third of the Negro school population, that crucial finding
establishes a
prima facie case of intentional segregation
in the core city schools. In such case, respondent's neighborhood
school policy is not to be determinative "simply because it appears
to be neutral."
IV
In summary, the District Court on remand, first, will afford
respondent School Board the opportunity to prove its contention
that the Park Hill area is a separate, identifiable and unrelated
section of the school district that should be treated as isolated
from the rest of the district. If respondent School Board fails to
prove that contention, the District Court, second, will determine
whether respondent School Board's conduct over almost a decade
after 1960 in carrying out a policy of deliberate racial
segregation in the Park Hill schools constitutes the entire school
system a dual school system. If the District Court determines that
the Denver school system is a dual school system, respondent School
Board has the affirmative duty to desegregate the entire system
"root and branch."
Green v. County School Board, 391 U.S.
at
391 U. S. 438.
If the District Court determines, however, that the Denver school
system is not a dual school system by reason of the Board's actions
in Park Hill, the court, third, will afford respondent School Board
the opportunity to rebut petitioners'
prima facie case of
intentional segregation in the core city schools raised by the
finding of intentional segregation in the Park Hill schools. There,
the Board's burden is to show that its policies and practices with
respect to schoolsite location, school size, school renovations and
additions, student attendance zones, student assignment and
transfer options, mobile classroom units, transportation of
students, assignment
Page 413 U. S. 214
of faculty and staff, etc., considered together and premised on
the Board's so-called "neighborhood school" concept, either were
not taken in effectuation of a policy to create or maintain
segregation in the core city schools or, if unsuccessful in that
effort, were not factors in causing the existing condition of
segregation in these schools. Considerations of "fairness" and
"policy" demand no less in light of the Board's intentionally
segregative actions. If respondent Board fails to rebut
petitioners'
prima facie case, the District Court must, as
in the case of Park Hill, decree all-out desegregation of the core
city schools.
The judgment of the Court of Appeals is modified to vacate,
instead of reverse, the parts of the Final Decree that concern the
core city schools, and the case is remanded to the District Court
for further proceedings consistent with this opinion. [
Footnote 18]
It is so ordered.
MR. CHIEF JUSTICE BURGER concurs in the result.
MR. JUSTICE WHITE took no part in the decision of this case.
[
Footnote 1]
To the contrary, Art. IX, ยง 8, of the Colorado Constitution
expressly prohibits any "classification of pupils . . . on account
of race or color." As early as 1927, the Colorado Supreme Court
held that a Denver practice of excluding black students from school
programs at Manual High School and Morey Junior High School
violated state law.
Jones v. Newlon, 81 Colo. 25, 253 P.
386.
[
Footnote 2]
There were 92 elementary schools, 15 junior high schools, 2
junior-senior high schools, and 7 senior high schools. In addition,
the Board operates an Opportunity School, a Metropolitan Youth
Education Center, and an Aircraft Training Facility.
[
Footnote 3]
The so-called "Park Hill schools" are Barrett, Stedman, Hallett,
Smith, Philips, and Park Hill Elementary Schools; and Smiley Junior
High School. East High School serves the area but is located
outside of it. (
See map following p. 214. [Map
omitted.])
[
Footnote 4]
The so-called "core city schools" which are said to be
segregated are Boulevard, Bryant-Webster, Columbine, Crofton,
Ebert, Elmwood, Elyria, Fairmont, Fairview, Garden Place, Gilpin,
Greenlee, Harrington, Mitchell, Smedley, Swansea, Whittier, Wyatt,
and Wyman Elementary Schools; Baker, Cole, and Morey Junior High
School; and East, West, and Manual High School. (
See map
following p. 214. [Map omitted.])
[
Footnote 5]
The first of the District Court's four opinions,
303 F.
Supp. 279, was filed July 31, 1969, and granted petitioners'
application for a preliminary injunction. The second opinion,
303 F.
Supp. 289, was filed August 14, 1969, and made supplemental
findings and conclusions. The third opinion,
313 F. Supp.
61, filed March 21, 1970, was the opinion on the merits. The
fourth opinion,
313 F. Supp.
90, was on remedy and was filed May 21, 1970. The District
Court filed an unreported opinion on October 19, 1971, in which
relief was extended to Hallett and Stedman Elementary Schools,
which were found by the court in its July 31, 1969, opinion to be
purposefully segregated but were not included within the scope of
the three 1969 Board resolutions. The Court of Appeals filed five
unreported opinions: on August 5, 1969, vacating preliminary
injunctions; on August 27, 1969, staying preliminary injunction; on
September 15, 1969, on motion to amend stay; on October 17, 1969,
denying motions to dismiss; and on March 26, 1971, granting stay.
MR. JUSTICE BRENNAN, on August 29, 1969, filed an opinion
reinstating the preliminary injunction,
396 U.
S. 1215, and on April 26, 1971, this Court entered a per
curiam order vacating the Court of Appeals' stay,
402 U.
S. 182.
[
Footnote 6]
The parties have used the terms "Anglo," "Negro," and "Hispano"
throughout the record. We shall therefore use those terms.
"Hispano' is the term used by the Colorado Department of
Education to refer to a person of Spanish, Mexican, or Cuban
heritage. Colorado Department of Education, Human Relations in
Colorado, A Historical Record 203 (1968). In the Southwest, the
'Hispanos' are more commonly referred to as 'Chicanos' or
'Mexican-Americans."
The more specific racial and ethnic composition of the Denver
public schools is as follows:
Anglo Negro Hispano
Pupils No. % No. % No. %
Elementary 33,719 61.8 8,297 15.2 12,570 23.0
Junior High 14,848 68.7 2,893 13.4 3,858 17.9
Senior High 14,852 72.8 2,442 12.0 3,101 15.2
------ ---- ------ ---- ------ ----
Total 63,419 65.7 13,632 14.1 19,529 20.2
[
Footnote 7]
United States Commission on Civil Rights, Mexican American
Education Study, Report 1, Ethnic Isolation of Mexican Americans in
the Public Schools of the Southwest (Apr.1971); United States
Commission on Civil Rights, Mexican American Educational Series,
Report 2, The Unfinished Education (Oct.1971).
[
Footnote 8]
The Commission's second Report, on p. 41, summaries its
findings:
"The basic finding of this report is that minority students in
the Southwest -- Mexican Americans, blacks, American Indians -- do
not obtain the benefits of public education at a rate equal to that
of their Anglo classmates."
[
Footnote 9]
Our Brother REHNQUIST argues in dissent that the Court somehow
transgresses the "two-court" rule.
Post at
413 U. S. 264.
But at this stage, we have no occasion to review the factual
findings concurred in by the two courts below.
Cf. Neil v.
Biggers, 409 U. S. 188
(1972). We address only the question whether those courts applied
the correct legal standard in deciding the case as it affects the
core city schools.
[
Footnote 10]
The Board was found guilty of intentionally segregative acts of
one kind or another with respect to the schools listed below. (As
to Cole and East, the conclusion rests on the rescission of the
resolutions.)
PUPILS 1968-1969
Anglo Negro Hispano Total
Barrett 1 410 12 423
Stedman 27 634 25 686
Hallett 76 634 41 751
Park Hill 684 223 56 963
Philips 307 203 45 555
Smiley Jr. High 360 1,112 74 1,546
Cole Jr. High 46 884 289 1,219
East High 1,409 1,039 175 2,623
----- ----- --- -----
Subtotal Elementary 1,095 2,104 179 3,378
Subtotal Jr. High 406 1,996 363 2,765
Subtotal Sr. High 1,409 1,039 175 2,623
----- ----- --- -----
Total 2,910 5,139 717 8,766
The total Negro school enrollment in 1968 was:
Elementary 8,297
Junior High 2,893
Senior High 2,442
Thus, the above-mentioned schools included:
Elementary 25.36% of all Negro elementary pupils
Junior High 68.99% of all Negro junior high pupils
Senior High 42.55% of all Negro senior high pupils
Total 37.69% of all Negro pupils
[
Footnote 11]
Our Brother REHNQUIST argues in dissent that
Brown v. Board
of Education did not impose an "affirmative duty to integrate"
the schools of a dual school system, but was only a "prohibition
against discrimination" "in the sense that the assignment of a
child to a particular school is not made to depend on his race. . .
."
Infra at
413 U. S. 258.
That is the interpretation of
Brown expressed 18 years ago
by a three-judge court in
Briggs v.
Elliott, 132 F.
Supp. 776, 777 (1955): "The Constitution, in other words, does
not require integration. It merely forbids discrimination."
But
Green v. County School Board, 391 U.
S. 430,
391 U. S.
437-438 (1968), rejected that interpretation insofar as
Green expressly held that
"School boards . . . operating state-compelled dual systems were
nevertheless clearly charged [by
Brown II] with the
affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination would be
eliminated root and branch."
Green remains the governing principle.
Alexander v.
Holmes County Board of Education, 396 U. S.
19 (1969);
Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1,
402 U. S. 15
(1971).
See also Kelley v. Metropolitan County Board of
Education, 317 F.
Supp. 980, 984 (1970).
[
Footnote 12]
As a former School Board President who testified for the
respondents put it: "Once you change the boundary of any one
school, it is affecting all the schools. . . ." Testimony of Mrs.
Lois Heath Johnson on cross-examination. App. 951a-952a.
Similarly, Judge Wisdom has recently stated:
"Infection at one school infects all schools. To take the most
simple example, in a two-school system, all blacks at one school
means all or almost all whites at the other."
United States v. Texas Education Agency, 467 F.2d 848,
888 (CA5 1972).
[
Footnote 13]
See the chart in 445 F.2d at 1008-1009, which indicates
that 31,767 pupils attended the schools affected by the
resolutions.
[
Footnote 14]
Our Brother REHNQUIST argues in dissent that the District Court
did take the Park Hill finding into account in addressing the
question of alleged
de jure segregation of the core city
schools.
Post at
413 U. S. 262.
He cites the following excerpt from a footnote to the District
Court's opinion of March 21, 1970, 313 F. Supp. at 74-75, n.
18:
"Although past discriminatory acts may not be a substantial
factor contributing to present segregation, they may nevertheless
be probative on the issue of the segregative purpose of other
discriminatory acts which are in fact, a substantial factor in
causing a present segregated situation."
But our Brother REHNQUIST omits the rest of the footnote:
"Thus, in part I of this opinion, we discussed the building of
Barrett, boundary changes and the use of mobile units as they
relate to the purpose for the rescission of Resolutions 1520 1524
and 1531."
Obviously, the District Court was carefully limiting the comment
to the consideration being given past discriminatory acts affecting
the Park Hill schools in assessing the causes of current
segregation of those schools.
[
Footnote 15]
In addition to these 22 schools,
see 313 F. Supp. at
78, two more schools, Elyria and Smedley Elementary Schools, became
less than 30% Anglo after the District Court's decision on the
merits. These two schools were thus included in the list of
segregated schools. 313 F. Supp. at 92.
[
Footnote 16]
402 U. S. 1,
402 U. S. 17-18
(1971).
[
Footnote 17]
It may be that the District Court and Court of Appeals were
applying this test in holding that petitioners had failed to prove
that the Board's actions "caused" the current condition of
segregation in the core city schools. But, if so, certainly
plaintiffs in a school desegregation case are not required to prove
"cause" in the sense of "non-attenuation." That is a factor which
becomes relevant only after past intentional actions resulting in
segregation have been established. At that stage, the burden
becomes the school authorities' to show that the current
segregation is in no way the result of those past segregative
actions.
[
Footnote 18]
We therefore do not reach, and intimate no view upon, the merits
of the holding of the District Court, premised upon its erroneous
finding that the situation "is more like
de facto
segregation," 313 F. Supp. at 73, that nevertheless, although
all-out desegregation
could not be decreed . . . the only feasible and
constitutionally acceptable program . . . is a system of
desegregation and integration which provides compensatory education
in an integrated environment.
Id. at 96.
MR. JUSTICE DOUGLAS.
While I join the opinion of the Court, I agree with my Brother
POWELL that there is, for the purposes of the
Page 413 U. S. 215
Equal Protection Clause of the Fourteenth Amendment as applied
to the school cases, no difference between
de facto and
de jure segregation. The school board is a state agency
and the lines that it draws, the locations it selects for school
sites, the allocation it makes of students, the budgets it prepares
are state action for Fourteenth Amendment purposes.
As Judge Wisdom cogently stated in
United States v. Texas
Education Agency, 467 F.2d 848, segregated schools are often
created not by dual school systems decreed by the legislature, but
by the administration of school districts by school boards. Each is
state action within the meaning of the Fourteenth Amendment.
"Here, school authorities assigned students, faculty, and
professional staff; employed faculty and staff; chose sites for
schools; constructed new schools and renovated old ones; and drew
attendance zone lines. The natural and foreseeable consequence of
these actions was segregation of Mexican-Americans. Affirmative
action, to the contrary, would have resulted in desegregation. When
school authorities, by their actions, contribute to segregation in
education, whether by causing additional segregation or maintaining
existing segregation, they deny to the students equal protection of
the laws."
"We need not define the quantity of state participation which is
a prerequisite to a finding of constitutional violation. Like the
legal concepts of 'the reasonable man,' 'due care,' 'causation,'
'preponderance of the evidence,' and 'beyond a reasonable doubt,'
the necessary degree of state involvement is incapable of precise
definition and must be defined on a case-by-case basis. Suffice it
to say that school authorities here played a significant role in
causing or perpetuating unequal educational opportunities for
Mexican-Americans, and did so on a system-wide basis."
Id. at 863-864.
Page 413 U. S. 216
These latter acts are often said to create
de facto, as
contrasted with
de jure, segregation. But, as Judge Wisdom
observes, each is but another form of
de jure
segregation.
I think it is time to state that there is no constitutional
difference between
de jure and
de facto
segregation, for each is the product of state actions or policies.
If a "neighborhood" or "geographical" unit has been created along
racial lines by reason of the play of restrictive covenants that
restrict certain areas to "the elite," leaving the "undesirables"
to move elsewhere, there is state action in the constitutional
sense because the force of law is placed behind those
covenants.
There is state action in the constitutional sense when public
funds are dispersed by urban development agencies to build racial
ghettoes.
Where the school district is racially mixed and the races are
segregated in separate schools, where black teachers are assigned
almost exclusively to black schools, where the school board closed
existing schools located in fringe areas and built new schools in
black areas and in distant white areas, where the school board
continued the "neighborhood" school policy at the elementary level,
these actions constitute state action. They are of a kind quite
distinct from the classical
de jure type of school
segregation. Yet calling them
de facto is a misnomer, as
they are only more subtle types of state action that create or
maintain a wholly or partially segregated school system.
See
Kelly v. Guinn, 456 F.2d 100.
When a State forces, aids, or abets, or helps create a racial
"neighborhood," it is a travesty of justice to treat that
neighborhood as sacrosanct in the sense that it creation is free
from the taint of state action.
The Constitution and Bill of Rights have described the design of
a pluralistic society. The individual has the
Page 413 U. S. 217
right to seek such companions as he desires. But a State is
barred from creating by one device or another ghettoes that
determine the school one is compelled to attend.
MR. JUSTICE POWELL concurring in part and dissenting in
part.
I concur in the remand of this case for further proceedings in
the District Court, but on grounds that differ from those relied
upon by the Court.
This is the first school desegregation case to reach this Court
which involves a major city outside the South. It comes from
Denver, Colorado, a city and a State which have not operated public
schools under constitutional or statutory provisions which mandated
or permitted racial segregation. [
Footnote 2/1] Nor has it been argued that any other
legislative actions (such as zoning and housing laws) contributed
to the segregation which is at issue. [
Footnote 2/2] The Court has inquired only to what extent
the Denver public school authorities may have contributed to the
school segregation which is acknowledged to exist in Denver.
The predominantly minority schools are located in two areas of
the city referred to as Park Hill and the core city area. The
District Court considered that a school
Page 413 U. S. 218
with a concentration of 70% to 75% "Negro or Hispano students"
was identifiable as a segregated school.
313 F.
Supp. 61, 77. Wherever one may draw this line, it is undisputed
that most of the schools in these two areas are in fact, heavily
segregated in the sense that their student bodies are
overwhelmingly composed of non-Anglo children. The city-wide school
mix in Denver is 66% Anglo, 14% Negro, and 20% Hispano. In areas of
the city where the Anglo population largely resides, the schools
are predominantly Anglo, if not entirely so.
The situation in Denver is generally comparable to that in other
large cities across the country in which there is a substantial
minority population and where desegregation has not been ordered by
the federal courts. There is segregation in the schools of many of
these cities fully as pervasive as that in southern cities prior to
the desegregation decrees of the past decade and a half. The focus
of the school desegregation problem has now shifted from the South
to the country as a whole. Unwilling and foot-dragging as the
process was in most places, substantial progress toward achieving
integration has been made in Southern States. [
Footnote 2/3] No comparable progress has been made
in many nonsouthern cities with large minority populations,
[
Footnote 2/4] primarily because of
the
de facto/de jure
Page 413 U. S. 219
distinction nurtured by the courts and accepted complacently by
many of the same voices which denounced the evils of segregated
schools in the South. [
Footnote
2/5] But if our national concern is for those who attend such
schools, rather than for perpetuating a legalism rooted in history
rather than present reality, we must recognize that the evil of
operating separate schools is no less in Denver than in
Atlanta.
I
In my view, we should abandon a distinction which long since has
outlived its time, and formulate constitutional principles of
national rather than merely regional application. When
Brown v.
Board of Education, 347 U. S. 483
(1954) (
Brown I), was decided, the distinction between
Page 413 U. S. 220
de jure and
de facto segregation was
consistent with the limited constitutional rationale of that case.
The situation confronting the Court, largely confined to the
Southern States, was officially imposed racial segregation in the
schools extending back for many years and usually embodied in
constitutional and statutory provisions.
The great contribution of
Brown I was its holding in
unmistakable terms that the Fourteenth Amendment forbids
state-compelled or state-authorized segregation of public schools.
347 U.S. at
347 U. S. 488,
347 U. S.
493-495. Although some of the language was more
expansive, the holding in
Brown I was essentially
negative: it was impermissible under the Constitution for the
States, or their instrumentalities, to force children to attend
segregated schools. The forbidden action was
de jure, and
the opinion in
Brown I was construed -- for some years and
by many courts -- as requiring only state neutrality, allowing
"freedom of choice" as to schools to be attended so long as the
State itself assured that the choice was genuinely free of official
restraint. [
Footnote 2/6]
But the doctrine of
Brown I, as amplified by
Brown II,
349 U. S. 294
(1955), did not retain its original meaning. In a series of
decisions extending from 1954 to 1971 the
Page 413 U. S. 221
concept of state neutrality was transformed into the present
constitutional doctrine requiring affirmative state action to
desegregate school systems. [
Footnote
2/7] The keystone case was
Green v. County School
Board, 391 U. S. 430,
391 U. S.
437-438 (1968), where school boards were declared to
have
"the affirmative duty to take whatever steps might be necessary
to convert to a unitary system in which racial discrimination would
be eliminated root and branch."
The school system before the Court in Green was operating in a
rural and sparsely settled county where there were no
concentrations of white and black populations, no neighborhood
school system (there were only two schools in the county), and none
of the problems of an urbanized school district. [
Footnote 2/8] The Court properly identified the
freedom of choice program there as a subterfuge, and the language
in
Green imposing an affirmative duty to convert to a
unitary system was appropriate on the facts before the Court. There
was, however, reason to question to what extent this duty would
apply in the vastly different factual setting of a large city with
extensive areas of residential segregation, presenting problems and
calling for solutions quite different from those in the rural
setting of New Kent County, Virginia.
But the doubt as to whether the affirmative duty concept would
flower into a new constitutional principle of general application
was laid to rest by
Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1 (1971),
in which the duty articulated in
Green was applied to
the
Page 413 U. S. 222
urban school system of metropolitan Charlotte, North Carolina.
In describing the residential patterns in Charlotte, the Court
noted the "familiar phenomenon" in the metropolitan areas of
minority groups being "concentrated in one part of the city," 402
U.S. at
402 U. S. 25, and
acknowledged that:
"Rural areas accustomed for half a century to the consolidated
school systems implemented by bus transportation could make
adjustments more readily than metropolitan areas with dense and
shifting population, numerous schools, congested and complex
traffic patterns."
402 U.S. at
402 U. S. 14.
Despite this recognition of a fundamentally different problem from
that involved in
Green, the Court nevertheless held that
the affirmative duty rule of
Green was applicable, and
prescribed for a metropolitan school system with 107 schools and
some 84,000 pupils essentially the same remedy -- elimination of
segregation "root and branch" -- which had been formulated for the
two schools and 1,300 pupils of New Kent County.
In
Swann, the Court further noted it was concerned only
with States having "a long history" of officially imposed
segregation and the duty of school authorities in those States to
implement
Brown I. 402 U.S. at
402 U. S. 5-6. In
so doing, the Court refrained from even considering whether the
evolution of constitutional doctrine from
Brown I to
Green/Swann undercut whatever logic once supported the
de facto/de jure distinction. In imposing on metropolitan
southern school districts an affirmative duty, entailing
large-scale transportation of pupils, to eliminate segregation in
the schools, the Court required these districts to alleviate
conditions which, in large part, did
not result from
historic, state-imposed
de jure segregation. Rather, the
familiar root cause of segregated schools in
all the
biracial metropolitan areas of our country is essentially
Page 413 U. S. 223
the same: one of segregated residential and migratory patterns
the impact of which on the racial composition of the schools was
often perpetuated and rarely ameliorated by action of public school
authorities. This is a national, not a southern, phenomenon. And it
is largely unrelated to whether a particular State had or did not
have segregative school laws. [
Footnote
2/9]
Whereas
Brown I rightly decreed the elimination of
state-imposed segregation in that particular section of the country
where it did exist,
Swann imposed obligations on southern
school districts to eliminate conditions which are not regionally
unique, but are similar both in origin and effect to conditions in
the rest of the country. As the remedial obligations of
Swann extend far beyond the elimination of the outgrowths
of the state-imposed segregation outlawed in
Brown, the
rationale of
Swann points inevitably toward a uniform,
constitutional approach to our national problem of school
segregation.
II
The Court's decision today, while adhering to the
de jure/de
facto distinction, will require the application
Page 413 U. S. 224
of the
Green/Swann doctrine of "affirmative duty" to
the Denver School Board despite the absence of any history of
state-mandated school segregation. The only evidence of a
constitutional violation was found in various decisions of the
School Board. I concur in the Court's position that the public
school authorities are the responsible agency of the State, and
that, if the affirmative duty doctrine is sound constitutional law
for Charlotte, it is equally so for Denver. I would not, however,
perpetuate the
de jure/de facto distinction, nor would I
leave to petitioners the initial tortuous effort of identifying
"segregative acts" and deducing "segregative intent." I would hold,
quite simply, that, where segregated public schools exist within a
school district to a substantial degree, there is a
prima
facie case that the duly constituted public authorities (I
will usually refer to them collectively as the "school board") are
sufficiently responsible [
Footnote
2/10] to warrant imposing upon them a nationally applicable
burden to demonstrate they nevertheless are operating a genuinely
integrated school system.
A
The principal reason for abandonment of the
de jure/
de facto distinction is that, in view of the evolution of
the holding in
Brown I into the affirmative duty doctrine,
the distinction no longer can be justified on a principled basis.
In decreeing remedial requirements for the
Charlotte-Mecklenburg school district,
Swann
dealt with a metropolitan, urbanized area in which the basic
Page 413 U. S. 225
causes of segregation were generally similar to those in all
sections of the country, and also largely irrelevant to the
existence of historic, state-imposed segregation at the time of the
Brown decision. Further, the extension of the affirmative
duty concept to include compulsory student transportation went well
beyond the mere remedying of that portion of school segregation for
which former state segregation laws were ever responsible.
Moreover, as the Court's opinion today abundantly demonstrates, the
facts deemed necessary to establish
de jure discrimination
present problems of subjective intent which the courts cannot
fairly resolve.
At the outset, one must try to identify the constitutional right
which is being enforced. This is not easy, as the precedents have
been far from explicit. In
Brown I, after emphasizing the
importance of education, the Court said that:
"Such an opportunity, where the state has undertaken to provide
it, is a right which must be made available to all on equal
terms."
347 U.S. at
347 U. S. 493.
In
Brown II, the Court identified the "fundamental
principle" enunciated in
Brown I as being the
unconstitutionality of "racial discrimination in public education,"
349 U.S. at
349 U. S. 298,
and spoke of "the personal interest of the plaintiffs in admission
to public schools as soon as practicable on a nondiscriminatory
basis." 349 U.S. at
349 U. S. 300.
Although this and similar language is ambiguous as to the specific
constitutional right, it means -- as a minimum -- that one has the
right not to be compelled by state action to attend a segregated
school system. In the evolutionary process since 1954, decisions of
this Court have added a significant gloss to this original right.
Although nowhere expressly articulated in these terms, I would now
define it as the right, derived from the Equal Protection Clause,
to expect that, once the State has assumed
Page 413 U. S. 226
responsibility for education, local school boards will operate
integrated school systems within their respective
districts. [
Footnote 2/11] This
means that school authorities, consistent with the generally
accepted educational goal of attaining quality education for all
pupils, must make and implement their customary decisions with a
view toward enhancing integrated school opportunities.
The term "integrated school system" presupposes, of course, a
total absence of any laws, regulations, or policies supportive of
the type of "legalized" segregation condemned in
Brown. A
system would be integrated in accord with constitutional standards
if the responsible authorities had taken appropriate steps to (i)
integrate faculties and administration; (ii) scrupulously assure
equality of facilities, instruction, and curriculum opportunities
throughout the district; (iii) utilize their authority to draw
attendance zones to promote integration; and (iv) locate new
schools, close old ones, and determine the size and grade
categories with this same objective in mind. Where school
authorities decide to undertake the transportation of students,
this also must be with integrative opportunities in mind.
The foregoing prescription is not intended to be either
definitive or all-inclusive, but rather an indication of the
contour characteristics of an
integrated school system in
which all citizens and pupils may justifiably be confident that
racial discrimination is neither practiced nor tolerated. An
integrated school system does not
Page 413 U. S. 227
mean -- and indeed could not mean in view of the residential
patterns of most of our major metropolitan areas -- that
every
school must, in fact, be an integrated unit. A school which
happens to be all or predominantly white or all or predominantly
black is not a "segregated" school in an unconstitutional sense if
the system itself is a genuinely integrated one.
Having school boards operate an integrated school system
provides the best assurance of meeting the constitutional
requirement that racial discrimination, subtle or otherwise, will
find no place in the decisions of public school officials. Courts
judging past school board actions with a view to their
general
integrative effect will be best able to assure an absence of
such discrimination while avoiding the murky, subjective judgments
inherent in the Court's search for "segregative intent." Any test
resting on so nebulous and elusive an element as a school board's
segregative "intent" provides inadequate assurance that minority
children will not be shortchanged in the decisions of those
entrusted with the nondiscriminatory operation of our public
schools.
Public schools are creatures of the State, and whether the
segregation is state-created or state-assisted or merely
state-perpetuated should be irrelevant to constitutional principle.
The school board exercises pervasive and continuing responsibility
over the long-range planning as well as the daily operations of the
public school system. It sets policies on attendance zones, faculty
employment and assignments, school construction, closings and
consolidations, and myriad other matters. School board decisions
obviously are not the sole cause of segregated school conditions.
But if, after such detailed and complete public supervision,
substantial school segregation still persists, the presumption is
strong that the school board, by its acts or omissions, is in some
part responsible. Where state action and supervision are so
Page 413 U. S. 228
pervasive and where, after years of such action, segregated
schools continue to exist within the district to a substantial
degree, this Court is justified in finding a
prima facie
case of a constitutional violation. The burden then must fall on
the school board to demonstrate it is operating an "integrated
school system."
It makes little sense to find
prima facie violations
and the consequent affirmative duty to desegregate solely in those
States with state-imposed segregation at the time of the
Brown decision. The history of state-imposed segregation
is more widespread in our country than the
de jure/de
facto distinction has traditionally cared to recognize.
[
Footnote 2/12] As one
commentator has noted:
"[T]he three court of appeals decisions denying a constitutional
duty to abolish
de facto segregation all arose in cities
-- Cincinnati, Gary, and Kansas City, Kansas -- where racial
segregation in schools was formerly mandated by state or local law.
[
Deal v. Cincinnati Board of Education, 369 F.2d 55 (CA6
1966),
cert. denied, 389 U.S. 847 (1967);
Downs v.
Board of Education, 336 F.2d 988 (CA10 1964),
cert.
denied, 380 U.S. 914 (1965);
Bell v. School City of Gary,
Ind., 324 F.2d 209 (CA7 1963),
cert. denied, 377 U.S.
924 (1964).] Ohio discarded its statute in 1887, Indiana in 1949,
and Kansas City not until the advent of
Brown. If Negro
and white parents in
Page 413 U. S. 229
Mississippi are required to bus their children to distant
schools on the theory that the consequences of past
de
jure segregation cannot otherwise be dissipated, should not
the same reasoning apply in Gary, Indiana, where, no more than five
years before
Brown, the same practice existed with
presumably the same effects?"
Goodman,
De Facto School Segregation: A Constitutional
and Empirical Analysis, 60 Calif.L.Rev. 275, 297 (1972). [
Footnote 2/13]
Not only does the
de jure/de facto distinction operate
inequitably on communities in different sections of the country,
more importantly, it disadvantages minority children, as well. As
the Fifth Circuit stated:
"'The Negro children in Cleveland, Chicago, Los Angeles, Boston,
New York, or any other area of the nation which the opinion
classifies under
de facto segregation, would receive
little comfort from the assertion that the racial make-up of their
school system does not violate their constitutional rights because
they were born into a
de facto society, while the exact
same racial make-up of the school system in the 17 Southern and
border states violates the
Page 413 U. S. 230
constitutional rights of their counterparts, or even their blood
brothers, because they were born into a
de jure society.
All children everywhere in the nation are protected by the
Constitution, and treatment which violates their constitutional
rights in one area of the country, also violates such
constitutional rights in another area.'"
Cisneros v. Corpus Christi Independent School District,
467 F.2d 142, 148 (CA5 1972) (en banc), quoting
United States
v. Jefferson County Board of Education, 380 F.2d 385, 397 (CA5
1967) (Gewin, J., dissenting). [
Footnote 2/14]
The Court today does move for the first time toward breaking
down past sectional disparities, but it clings tenuously to its
distinction. It searches for
de jure action in what the
Denver School Board has done or failed to do, and even here the
Court does not rely upon the results or effects of the Board's
conduct but feels compelled to find segregative intent: [
Footnote 2/15]
"We emphasize that the differentiating factor between
de
jure segregation and so-called
de facto
Page 413 U. S. 231
segregation to which we referred in
Swann is
purpose or intent to segregate."
Ante at
413 U. S. 208
(emphasis is the Court's).
The Court's insistence that the "differentiating factor" between
de jure and
de facto segregation be "purpose or
intent" is difficult to reconcile with the language in so recent a
case as
Wright v. Council of the City of Emporia,
407 U. S. 451
(1972). In holding there that "motivation" is irrelevant, the Court
said:
"In addition, an inquiry into the 'dominant' motivation of
school authorities is as irrelevant as it is fruitless. The mandate
of
Brown II was to desegregate schools, and we have said
that '[t]he measure of any desegregation plan is its
effectiveness.'
Davis v. School Commissioners of Mobile
County, 402 U. S. 33,
402 U. S.
37. Thus, we have focused upon the effect -- not the
purpose or motivation -- of a school board's action in determining
whether it is a permissible method of dismantling a dual system. .
. ."
". . . Though the
purpose of the new school districts
was found to be discriminatory in many of these cases, the courts'
holdings rested not on motivation or purpose but on the
effect of the action upon the dismantling of the dual
school systems involved. That was the focus of the District Court
in this case, and we hold that its approach was proper."
407 U.S. at
407 U. S. 462.
I can discern no basis in law or logic for holding that the
motivation of school board action is irrelevant in Virginia and
controlling in Colorado. It may be argued, of course, that in
Emporia a prior constitutional violation
Page 413 U. S. 232
had already been proved and that this justifies the distinction.
The net result of the Court's language, however, is the application
of an
effect test to the actions of southern school
districts and an
intent test to those in other sections,
at least until an initial
de jure finding for those
districts can be made. Rather than straining to perpetuate any such
dual standard, we should hold forthrightly that significant
segregated school conditions in any section of the country are a
prima facie violation of constitutional rights. As the
Court has noted elsewhere:
"Circumstances or chance may well dictate that no persons in a
certain class will serve on a particular jury or during some
particular period. But it taxes our credulity to say that
mere
chance resulted in there being no members of this class among
the over six thousand jurors called in the past 25 years.
The
result bespeaks discrimination, whether or not it was a conscious
decision on the part of any individual jury commissioner."
Hernanez v. Texas, 347 U. S. 475,
347 U. S. 482
(154). (Emphasis added.)
B
There is thus no reason, as a matter of constitutional
principle, to adhere to the
de jure/de facto distinction
in school desegregation cases. In addition, there are reasons of
policy and prudent judicial administration which point strongly
toward the adoption of a uniform national rule. The litigation
heretofore centered in the South already is surfacing in other
regions. The decision of the Court today, emphasizing as it does
the elusive element of segregative intent, will invite numerous
desegregation suits in which there can be little hope of uniformity
of result.
The issue in these cases will not be whether segregated
education exists. This will be conceded in most of them.
Page 413 U. S. 233
The litigation will focus as a consequence of the Court's
decision on whether segregation has resulted in any "meaningful or
significant" portion of a school system from a school board's
"segregative intent." The intractable problems involved in
litigating this issue are obvious to any lawyer. The results of
litigation -- often arrived at subjectively by a court endeavoring
to ascertain the subjective intent of school authorities with
respect to action taken or not taken over many years -- will be
fortuitous, unpredictable and even capricious.
The Denver situation is illustrative of the problem. The courts
below found evidence of
de jure violations with respect to
the Park Hill schools and an absence of such violations with
respect to the core city schools, despite the fact that actions
taken by the school board with regard to those two sections were
not dissimilar. It is, for example, quite possible to contend that
both the construction of Manual High School in the core city area
and Barrett Elementary School in the Park Hill area operated to
serve their surrounding Negro communities and, in effect, to merge
school attendance zones with segregated residential patterns.
See Brief for Petitioners 883. Yet findings even on such
similar acts will, under the
de jure/de facto distinction,
continue to differ, especially since the Court has never made clear
what suffices to establish the requisite "segregative intent" for
an initial constitutional violation. Even if it were possible to
clarify this question, wide and unpredictable differences of
opinion among judges would be inevitable when dealing with an issue
as slippery as "intent" or "purpose," especially when related to
hundreds of decisions made by school authorities under varying
conditions over many years.
This Court has recognized repeatedly that it is
"extremely difficult for a court to ascertain the motivation, or
collection of different motivations, that lie behind a
Page 413 U. S. 234
legislative enactment,"
Palmer v. Thompson, 403 U. S. 217,
403 U. S. 224
(1971);
McGinnis v. Royster, 410 U.
S. 263,
410 U. S.
276-277 (1973);
United States v. O'Brien,
391 U. S. 367,
391 U. S. 381
(1968). Whatever difficulties exist with regard to a single statute
will be compounded in a judicial review of years of administration
of a large and complex school system. [
Footnote 2/16] Every act of a school board and school
administration, and indeed every failure to act where affirmative
action is indicated, must now be subject to scrutiny. The most
routine decisions with respect to the operation of schools, made
almost daily, can affect in varying degrees the extent to which
schools are initially segregated, remain in that condition, are
desegregated, or -- for the long-term future -- are likely to be
one or the other. These decisions include action or nonaction with
respect to school building construction and location; the timing of
building new schools and their size; the closing and consolidation
of schools; the drawing or gerrymandering of
Page 413 U. S. 235
student attendance zones; the extent to which a neighborhood
policy is enforced; the recruitment, promotion and assignment of
faculty and supervisory personnel; policies with respect to
transfers from one school to another; whether, and to what extent,
special schools will be provided, where they will be located, and
who will qualify to attend them; the determination of curriculum,
including whether there will be "tracks" that lead primarily to
college or to vocational training, and the routing of students into
these tracks; and even decisions as to social, recreational, and
athletic policies.
In
Swann, the Court did not have to probe into
segregative intent and proximate cause with respect to each of
these "endless" factors. The basis for its
de jure finding
there was rooted primarily in the prior history of the
desegregation suit. 402 U.S. at
402 U. S. 5-6. But
in a case of the present type, where no such history exists, a
judicial examination of these factors will be required under
today's decision. This will lead inevitably to uneven and
unpredictable results, to protracted and inconclusive litigation,
to added burdens on the federal courts, and to serious disruption
of individual school systems. In the absence of national and
objective standards, school boards and administrators will remain
in a state of uncertainty and disarray, speculating as to what is
required and when litigation will strike.
C
Rather than continue to prop up a distinction no longer grounded
in principle, and contributing to the consequences indicated above,
we should acknowledge that, whenever public school segregation
exists to a substantial degree there is
prima facie
evidence of a constitutional violation by the responsible school
board. It is true, of course, that segregated schools -- wherever
located -- are not solely the product of the action or
Page 413 U. S. 236
inaction of public school authorities. Indeed, as indicated
earlier, there can be little doubt that principal causes of the
pervasive school segregation. found in the major urban areas of
this country, whether in the North, West, or South, are the
socio-economic influences which have concentrated our minority
citizens in the inner cities while the more mobile white majority
disperse to the suburbs. But it is also true that public school
boards have continuing, detailed responsibility for the public
school system within their district and, as Judge John Minor Wisdom
has noted, "[w]hen the figures [showing segregation in the schools]
speak so eloquently, a
prima facie case of discrimination
is established."
United States v. Texas Education Agency,
467 F.2d 848, 873 (CA5 1972) (en banc). Moreover, as foreshadowed
in
Swann and as implicitly held today, school boards have
a duty to minimize and ameliorate segregated conditions by pursuing
an affirmative policy of desegregation. It is this policy which
must be applied consistently on a national basis without regard to
a doctrinal distinction which has outlived its time.
III
The preceding section addresses the constitutional obligation of
public authorities in the school districts throughout our country
to operate integrated school systems. When the schools of a
particular district are found to be substantially segregated, there
is a
prima facie case that this obligation has not been
met. The burden then shifts to the school authorities to
demonstrate that they have in fact, operated an integrated system
as this term is defined,
supra at
413 U. S.
227-228. If there is a failure successfully to rebut the
prima facie case, the question then becomes what
reasonable affirmative desegregative steps district courts may
require to
Page 413 U. S. 237
place the school system in compliance with the constitutional
standard. In short, what specifically is the nature and scope of
the remedy?
As the Court's opinion virtually compels the finding on remand
that Denver has a "dual school system," that city will then be
under an "affirmative duty" to desegregate its entire system "root
and branch."
Green v. County School Board, 391 U.S. at
391 U. S.
437-438. Again, the critical question is what ought this
constitutional duty to entail?
A
The controlling case is
Swann, supra, and the question
which will confront and confound the District Court and Denver
School Board is what, indeed, does
Swann require?
Swann purported to enunciate no new principles, relying
heavily on
Brown I and
II and on
Green.
Yet it affirmed a district court order which had relied heavily on
"racial ratios" and sanctioned transportation of elementary as well
as secondary pupils. Lower federal courts have often read
Swann as requiring far-reaching transportation decrees
[
Footnote 2/17] "to achieve the
greatest possible degree of actual
Page 413 U. S. 238
desegregation." 402 U.S. at
402 U. S. 26. In
the context of a large urban area, with heavy residential
concentrations of white and black citizens in different -- and
widely separated -- sections of the school district, extensive
dispersal and transportation of pupils is inevitable if
Swann is read as expansively as many courts have been
reading it to date.
To the extent that Swann may be thought to require large-scale
or long-distance transportation of students in our metropolitan
school districts, I record my profound misgivings. Nothing in our
Constitution commands or encourages any such court-compelled
disruption of public education. It may be more accurate to view
Swann as having laid down a broad rule of reason under
which desegregation remedies must remain flexible and other values
and interests be considered. Thus, the Court recognized that school
authorities, not the federal judiciary, must be charged in the
first instance with the task of desegregating local school systems.
Id. at
402 U. S. 16. It
noted that school boards in rural areas can adjust more readily to
this task than those in metropolitan districts "with dense and
shifting population, numerous schools, congested and complex
traffic patterns."
Id. at
402 U. S. 14.
Although the use of pupil transportation was approved as a remedial
device, transportation orders are suspect
"when the time or distance of travel is so great
Page 413 U. S. 239
as to either risk the health of the children or significantly
impinge on the educational process."
Id. at 30-31. Finally, the age of the pupils to be
transported was recognized by the Court in
Swann as one
important limitation on the time of student travel.
Id. at
31.
These factors were supposed to help guide district courts in
framing equitable remedies in school desegregation cases. [
Footnote 2/18] And the Court further
emphasized that equitable decrees are inherently sensitive, not
solely to the degree of desegregation to be achieved, but to a
variety of other public and private interests:
"[A] school desegregation case does not differ fundamentally
from other cases involving the framing of equitable remedies to
repair the denial of a constitutional right. The task is to
correct, by a balancing of the individual and collective interests,
the condition that offends the Constitution.
Id. at
116."
Those words echoed a similar expression in
Brown II,
349 U.S. at
349 U. S.
300:
"In fashioning and effectuating the decrees, the courts will be
guided by equitable principles. Traditionally, equity has been
characterized by a practical flexibility in shaping its remedies
and by a facility for adjusting and reconciling public and private
needs."
Thus, in school desegregation cases, as elsewhere, equity
counsels reason, flexibility, and balance.
See, e.g.,
411 U. S. S.
240๏ฟฝ v. Kurtzman,@
411 U. S. 192
(1973). I am aware, of course, that reasonableness in any area is a
relative and subjective concept. But with school desegregation,
reasonableness would seem to embody a balanced evaluation of the
obligation of public school boards to promote desegregation with
other, equally important educational interests which a community
may legitimately assert. Neglect of either the obligation or the
interests destroys the evenhanded spirit with which equitable
remedies must be approached. [
Footnote 2/19] Overzealousness in pursuit of any single
goal is untrue to the tradition of equity and to the "balance" and
"flexibility" which this Court has always respected.
B
Where school authorities have defaulted in their duty to operate
an integrated school system, district courts must insure that
affirmative desegregative steps ensue. Many of these can be taken
effectively without damaging state and parental interests in having
children attend schools within a reasonable vicinity of home. Where
desegregative steps are possible within the framework of a system
of "neighborhood education," school authorities must pursue them.
For example, boundaries of neighborhood attendance zones should be
drawn to integrate, to the extent practicable, the school's student
body. Construction of new schools should be of
Page 413 U. S. 241
such a size and at such a location as to encourage the
likelihood of integration,
Swann, supra, at
402 U. S. 21.
Faculty integration should be attained throughout' the school
system,
id. at
402 U. S. 19;
United States v. Montgomery County Board of Education,
395 U. S. 225
(1969). An optional majority-to-minority transfer program, with the
State providing free transportation to desiring students, is also a
helpful adjunct to a desegregated school system.
Swann,
supra, at
402 U. S. 26-27.
It hardly need be repeated that allocation of resources within the
school district must be made with scrupulous fairness among all
schools.
The above examples are meant to be illustrative, not exhaustive.
The point is that the overall integrative impact of such school
board decisions must be assessed by district courts in deciding
whether the duty to desegregate has been met. For example,
"neighborhood school plans are constitutionally suspect when
attendance zones are superficially imposed upon racially defined
neighborhoods, and when school construction preserves, rather than
eliminates, the racial homogeny [
sic] of given schools.
[
Footnote 2/20]"
Keyes v. School District No. 1, 445 F.2d 990, 1005
(CA10 1971).
See also United States v. Board of Education of
Tulsa County, 429 F.2d 1253, 1251259 (CA10 1970). This does
not imply that decisions on faculty assignment, attendance zones,
school construction, closing and consolidation, must be made to the
detriment of all neutral, nonracial considerations. But these
considerations can, with proper school board initiative, generally
be met in a manner that will enhance the degree of school
desegregation.
C
Defaulting school authorities would have, at a minimum, the
obligation to take affirmative steps of the sort
Page 413 U. S. 242
outlined in the above section. School boards would, of course,
be free to develop and initiate further plans to promote school
desegregation. In a pluralistic society such as ours, it is
essential that no racial minority feel demeaned or discriminated
against and that students of all races learn to play, work, and
cooperate with one another in their common pursuits and endeavors.
Nothing in this opinion is meant to discourage school boards from
exceeding minimal constitutional standards in promoting the values
of an integrated school experience.
A
constitutional requirement of extensive student
transportation solely to achieve integration presents a vastly more
complex problem. It promises, on the one hand, a greater degree of
actual desegregation, while it infringes on what may fairly be
regarded as other important community aspirations and personal
rights. Such a requirement is also likely to divert attention and
resources from the foremost goal of any school system: the best
quality education for all pupils. The Equal Protection Clause does,
indeed, command that racial discrimination not be tolerated in the
decisions of public school authorities. But it does not require
that school authorities undertake widespread student transportation
solely for the sake of maximizing integration. [
Footnote 2/21]
Page 413 U. S. 243
This obviously does not mean that bus transportation has no
place in public school systems or is not a permissible means in the
desegregative process. The transporting of school children is as
old as public education, and in rural and some suburban settings it
is as indispensable as the providing of books. It is presently
estimated that approximately half of all American children ride
buses to school for reasons unrelated to integration. [
Footnote 2/22] At the secondary level, in
particular, where the schools are larger and serve a wider, more
dispersed constituency than elementary schools, some form of public
or privately financed transportation is often necessary. There is a
significant difference, however, in transportation plans
voluntarily initiated by local school boards for educational
purposes and those imposed by a federal court. The former usually
represent a necessary or convenient means of access to the school
nearest home; the latter often require lengthy trips for no purpose
other than to further integration. [
Footnote 2/23] Yet the
Page 413 U. S. 244
Court in
Swann was unquestionably right in describing
bus transportation as "one tool of school desegregation." 402 U.S.
at
402 U. S. 30.
[
Footnote 2/24] The crucial issue
is when, under what circumstances, and to what extent such
transportation may appropriately be ordered. The answer to this
turns -- as it does so often in the law -- upon a sound exercise of
discretion under the circumstances.
Swann itself recognized limits to desegregative
obligations. It noted that a constitutional requirement of "any
particular degree of racial balance or mixing . . . would be
disapproved . . . ," and sanctioned district court use of
mathematical ratios as "no more than a starting point in the
process of shaping a remedy. . . ."
Id. at
402 U. S. 24,
402 U. S. 25.
Thus, particular schools may be all white or all black and still
not infringe constitutional rights if the system is genuinely
integrated and school authorities are pursuing integrative steps
short of extensive and disruptive transportation. The refusal of
the Court in
Swann to require racial balance in schools
throughout the district or the arbitrary elimination of all
"one-race schools,"
id. at
402 U. S. 26, is
grounded in a recognition that
Page 413 U. S. 245
the State, parents, and children all have at stake in school
desegregation decrees, legitimate and recognizable interests.
The personal interest might be characterized as the desire that
children attend community schools near home. Dr. James Coleman
testified for petitioners at trial that
"most school systems organize their schools in relation to the
residents by having fixed school districts and some of these are
very ethnically homogeneous."
App. 1549a. In
Deal v. Cincinnati Board of Education,
369 F.2d at 60, the Sixth Circuit summarized the advantages of such
a neighborhood system of schools: [
Footnote 2/25]
"Appellants, however, pose the question of whether the
neighborhood system of pupil placement, fairly administered without
racial bias, comports with the requirements of equal opportunity if
it nevertheless results in the creation of schools with
predominantly or even exclusively Negro pupils. The neighborhood
system is in wide use throughout the nation, and has been for many
years the basis of school administration. This is so because it is
acknowledged to have several valuable aspects which are an aid to
education, such as minimization of safety hazards to children in
reaching school, economy of cost in reducing transportation needs,
ease of pupil
Page 413 U. S. 246
placement and administration through the use of neutral, easily
determined standards, and better home-school communication."
The neighborhood school does provide greater ease of parental
and student access and convenience, as well as greater economy of
public administration. These are obvious and distinct advantages,
but the legitimacy of the neighborhood concept rests on more basic
grounds. [
Footnote 2/26]
Neighborhood school systems, neutrally administered, reflect the
deeply felt desire of citizens for a sense of community in their
public education. Public schools have been a traditional source of
strength to our Nation, and that strength may derive in part from
the identification of many schools with the personal features of
the surrounding neighborhood. Community support, interest, and
dedication to public schools may well run higher with a
neighborhood attendance pattern: distance may encourage
disinterest. Many citizens sense today a decline in the intimacy of
our institutions -- home, church, and school -- which has caused a
concomitant decline in the unity and communal spirit of our people.
I pass no judgment on this viewpoint, but I do believe that this
Court should be wary of compelling in the name of constitutional
law what may seem to many a dissolution in the traditional, more
personal fabric of their public schools.
Closely related to the concept of a community and neighborhood
education are those rights and duties parents have with respect to
the education of their children. The law has long recognized the
parental duty to nurture, support, and provide for the welfare of
children, including
Page 413 U. S. 247
their education. In
Pierce v. Society of Sisters,
268 U. S. 510,
268 U. S.
534-535, a unanimous Court held that:
"Under the doctrine of
Meyer v. Nebraska, 262 U. S.
390, we think it entirely plain that the Act of 1922
unreasonably interferes with the liberty of parents and guardians
to direct the upbringing and education of children under their
control. . . . The child is not the mere creature of the State;
those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for
additional obligations."
And in
Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 482
(1965), the Court noted that, in
Pierce, "the right to
educate one's children as one chooses is made applicable to the
States by the force of the First and Fourteenth Amendments." I do
not believe recognition of this right can be confined solely to a
parent's choice to send a child to public or private school. Most
parents cannot afford the luxury of a private education for their
children, and the dual obligation of private tuitions and public
taxes. Those who may for numerous reasons seek public education for
their children should not be forced to forfeit all interest or
voice in the school their child attends. It would, of course, be
impractical to allow the wishes of particular parents to be
controlling. Yet the interest of the parent in the enhanced
parent-school and parent-child communication allowed by the
neighborhood unit ought not to be suppressed by force of law.
In the commendable national concern for alleviating public
school segregation, courts may have overlooked the fact that the
rights and interests of children affected by a desegregation
program also are entitled to consideration. Any child, white or
black, who is compelled to leave his neighborhood and spend
significant time each
Page 413 U. S. 248
day being transported to a distant school suffers an impairment
of his liberty and his privacy. Not long ago, James B. Conant wrote
that,
"[a]t the elementary school level, the issue seems clear. To
send young children day after day to distant schools by bus seems
out of the question. [
Footnote
2/27]"
A community may well conclude that the portion of a child's day
spent on a bus might be used more creatively in a classroom,
playground, or in some other extracurricular school activity.
Decisions such as these, affecting the quality of a child's daily
life, should not lightly be held constitutionally errant.
Up to this point, I have focused mainly on the personal
interests of parents and children which a community may believe to
be best protected by a neighborhood system of schools. But broader
considerations lead me to question just as seriously any remedial
requirement of extensive student transportation solely to further
integration. Any such requirement is certain to fall
disproportionately on the school districts of our country,
depending on their degree of urbanization, financial resources, and
their racial composition. Some districts with little or no biracial
population will experience little or no educational disruption,
while others, notably in large, biracial metropolitan areas, must
at considerable expense undertake extensive transportation to
achieve the type of integration frequently being ordered by
district courts. [
Footnote 2/28]
At a time when public education generally is suffering serious
financial malnutrition, the economic burdens of such transportation
can be severe, requiring both initial capital outlays and annual
operating costs in the millions of dollars. [
Footnote 2/29] And while constitutional requirements
have
Page 413 U. S. 249
often occasioned uneven burdens, never have they touched so
sensitive a matter as wide differences in the compulsory
transportation requirements for literally hundreds of thousands of
school children.
The argument for student transportation also overlooks the fact
that the remedy exceeds that which may be necessary to redress the
constitutional evil. Let us use Denver as an example. The Denver
School Board, by its action and nonaction, may be legally
responsible for some of the segregation that exists. But if one
assumes a maximum discharge of constitutional duty by the Denver
Board over the past decades, the fundamental problem of residential
segregation would persist. [
Footnote
2/30] It is, indeed, a novel application of equitable power --
not to mention a dubious extension of constitutional doctrine -- to
require so much greater a degree of forced school integration than
would have resulted from purely natural and neutral nonstate
causes.
The compulsory transportation of students carries a further
infirmity as a constitutional remedy. With most constitutional
violations, the major burden of remedial action falls on offending
state officials. Public officials who act to infringe personal
rights of speech, voting, or religious exercise, for example, are
obliged to cease the offending act or practice and, where
necessary, institute corrective measures. It is they who bear the
brunt of remedial action, though other citizens will to varying
degrees
Page 413 U. S. 250
feel its effects. School authorities responsible for segregation
must, at the very minimum, discontinue segregative acts. But when
the obligation further extends to the transportation of students,
the full burden of the affirmative remedial action is borne by
children and parents who did not participate in any constitutional
violation
Finally, courts in requiring so far-reaching a remedy as student
transportation solely to maximize integration, risk setting in
motion unpredictable and unmanageable social consequences. No one
can estimate the extent to which dismantling neighborhood education
will hasten an exodus to private schools, leaving public school
systems the preserve of the disadvantaged of both races. Or guess
how much impetus such dismantlement gives the movement from inner
city to suburb, and the further geographical separation of the
races. Nor do we know to what degree this remedy may cause
deterioration of community and parental support of public schools,
or divert attention from the paramount goal of quality in education
to a perennially divisive debate over who is to be transported
where.
The problem addressed in this opinion has perplexed courts,
school officials, other public authorities, and students of public
education for nearly two decades. The problem, especially since it
has focused on the "busing issue," has profoundly disquieted the
public wherever extensive transportation has been ordered. I make
no pretense of knowing the best answers. Yet the issue in this and
like cases comes to this Court as one of constitutional law. As to
this issue, I have no doubt whatever. There is nothing in the
Constitution, its history, or -- until recently -- in the
jurisprudence of this Court that mandates the employment of forced
transportation of young and teenage children to achieve a single
interest,
Page 413 U. S. 251
as important as that interest may be. We have strayed, quite far
as I view it, from the rationale of
Brown I and
II, as reiterated in
Swann, that courts, in
fashioning remedies, must be "guided by equitable principles" which
include the "adjusting and reconciling [of] public and private
needs,"
Brown II, 349 U.S. at
349 U. S.
300.
I urge a return to this rationale. This would result, as
emphasized above, in no prohibition on court-ordered student
transportation in furtherance of desegregation. But it would
require that the legitimate community interests in neighborhood
school systems be accorded far greater respect. In the balancing of
interests so appropriate to a fair and just equitable decree,
transportation orders should be applied with special caution to any
proposal as disruptive of family life and interests -- and
ultimately of education itself -- as extensive transportation of
elementary-age children solely for desegregation purposes. As a
minimum, this Court should not require school boards to engage in
the unnecessary transportation away from their neighborhoods of
elementary-age children. [
Footnote
2/31] It is at this age level that neighborhood education
performs its most vital role. It is with respect to children of
tender years that the greatest concern exists for their physical
and psychological health. It is also here, at the elementary
school,
Page 413 U. S. 252
that the rights of parents and children are most sharply
implicated. [
Footnote 2/32]
IV
The existing state of law has failed to shed light and provide
guidance on the two issues addressed in this opinion: (i) whether a
constitutional rule of uniform, national application should be
adopted with respect to our national problem of school
desegregation and (ii), if so, whether the ambiguities of
Swann, construed to date almost uniformly in favor of
extensive transportation, should be redefined to restore a more
viable balance among the various interests which are involved. With
all deference, it seems to me that the Court today has addressed
neither of these issues in a way that will afford adequate guidance
to the courts below in this case or lead to a rational, coherent
national policy.
The Court has chosen, rather, to adhere to the
de facto/de
jure distinction under circumstances, and upon a rationale,
which can only lead to increased and inconclusive litigation, and
-- especially regrettable -- to deferment of a nationally
consistent judicial position on this subject. There is, of course,
state action in every school district in the land. The public
schools always have been funded and operated by States and their
local subdivisions. It is true that segregated schools, even in the
cities of the South, are in large part the product of social and
economic factors -- and the resulting residential patterns. But
there is also not a school district in the United States, with any
significant minority school population, in which the school
authorities -- in one way or the other -- have not contributed in
some
Page 413 U. S. 253
measure to the degree of segregation which still prevails.
Instead of recognizing the reality of similar, multiple segregative
causes in school districts throughout the country, the Court
persists in a distinction whose duality operates unfairly on local
communities in one section of the country and on minority children
in the others.
The second issue relates to the ambiguities of
Swann
and the judicial disregard of legitimate community and individual
interests in framing equitable decrees. In the absence of a more
flexible and reasonable standard than that imposed by district
courts after
Swann, the desegregation which will now be
decreed in Denver and other major cities may well involve even more
extensive transportation than has been witnessed up to this
time.
It is well to remember that the course we are running is a long
one and the goal sought in the end -- so often overlooked -- is the
best possible educational opportunity for all children. Communities
deserve the freedom and the incentive to turn their attention and
energies to this goal of quality education, free from protracted
and debilitating battles over court-ordered student transportation.
The single most disruptive element in education today is the
widespread use of compulsory transportation, especially at
elementary grade levels. This has risked distracting and diverting
attention from basic educational ends, dividing and embittering
communities, and exacerbating, rather than ameliorating,
interracial friction and misunderstanding. It is time to return to
a more balanced evaluation of the recognized interests of our
society in achieving desegregation with other educational and
societal interests a community may legitimately assert. This will
help assure that integrated school systems will be established and
maintained by rational action, will be better understood and
supported by parents and children of both races, and will promote
the enduring qualities of an integrated society so essential to its
genuine success.
Page 413 U. S. 254
[
Footnote 2/1]
Article IX, ยง 8, of the Colorado Constitution has expressly
prohibited any "classification of pupils . . . on account of race
or color."
[
Footnote 2/2]
See, e.g., Swann v. Charlotte-Mecklenburg Board of
Education, 402 U. S. 1,
402 U. S. 23
(1971):
"We do not reach . . . the question whether a showing that
school segregation is a consequence of other types of state action,
without any discriminatory action by the school authorities, is a
constitutional violation requiring remedial action by a school
desegregation decree."
The term "state action," as used herein, thus refers to actions
of the appropriate public school authorities.
[
Footnote 2/3]
According to the 1971 Department of Health, Education, and
Welfare (HEW) estimate, 43.9% of Negro pupils attended majority
white schools in the South, as opposed to only 27.8% who attended
such schools in the North and West. Fifty-seven percent of all
Negro pupils in the North and West attend schools with over 80%
minority population, as opposed to 32.2% who do so in the South.
118 Cong.Rec. 564 (1972).
[
Footnote 2/4]
The 1971 HEW Enrollment Survey dramatized the segregated
character of public school systems in many nonsouthern cities. The
percentage of Negro pupils which attended schools more than 80%
black was 91.3 in Cleveland, Ohio; 97.8 in Compton, California;
78.1 in Dayton, Ohio; 78.6 in Detroit, Michigan; 95.7 in Gary,
Indiana; 86.4 in Kansas City, Missouri; 86.6 in Los Angeles,
California; 78.8 in Milwaukee, Wisconsin; 91.3 in Newark, New
Jersey; 89.8 in St. Louis, Missouri. The full data from the
Enrollment Survey may be found in 118 Cong.Rec. 563-566 (1972).
[
Footnote 2/5]
As Senator Ribicoff recognized:
"For years we have fought the battle of integration primarily in
the South where the problem was severe. It was a long, arduous
fight that deserved to be fought and needed to be won."
"Unfortunately, as the problem of racial isolation has moved
north of the Mason-Dixon line, many northerners have bid an evasive
farewell to the 100-year struggle for racial equality. Our motto
seems to have been 'Do to southerners what you do not want to do to
yourself.'"
"Good reasons have always been offered, of course, for not
moving vigorously ahead in the North as well as the South."
"First, it was that the problem was worse in the South. Then the
facts began to show that that was no longer true."
"We then began to hear the
de facto-de jure
refrain."
"Somehow residential segregation in the North was accidental or
de facto and that made it better than the legally
supported
de jure segregation of the South. It was a hard
distinction for black children in totally segregated schools in the
North to understand, but it allowed us to avoid the problem."
118 Cong.Rec. 5455 (1972).
[
Footnote 2/6]
See, e.g., Bradley v. School Board, 345 F.2d 310, 316
(CA4 1965) (en banc):
"It has been held again and again . . . that the Fourteenth
Amendment prohibition is not against segregation as such. . . . A
state or a school district offends no constitutional requirement
when it grants to all students uniformly an unrestricted freedom of
choice as to schools attended, so that each pupil, in effect,
assigns himself to the school he wishes to attend."
The case was later vacated and remanded by this Court, which
expressed no view on the merits of the desegregation plans
submitted.
382 U. S. 103,
382 U. S. 105
(1965).
See also Bell v. School City of Gary, Ind., 324
F.2d 209 (CA7 1963);
Downs v. Board of Education, 336 F.2d
988 (CA10 1964);
Deal v. Cincinnati Board of Education,
369 F.2d 55 (CA6 1966).
[
Footnote 2/7]
For a concise history and commentary on the evolution,
see
generally A. Bickel, The Supreme Court and the Idea of
Progress 126-130 (1970).
[
Footnote 2/8]
See also the companion cases in
Raney v. Board of
Education, 391 U. S. 443
(1968), and
Monroe v. Board of Commissioners, 391 U.
S. 450 (1968), neither of which involved large urban or
metropolitan areas.
[
Footnote 2/9]
As Dr. Karl Taeuber states in his article, Residential
Segregation, 213 Scientific American 12, 14 (Aug.1965):
"No elaborate analysis is necessary to conclude from these
figures that a high degree of residential segregation based on race
is a universal characteristic of American cities. This segregation
is found in the cities of the North and West as well as of the
South; in large cities as well as small; in nonindustrial cities as
well as industrial; in cities with hundreds of thousands of Negro
residents as well as those with only a few thousand, and in cities
that are progressive in their employment practices and civil rights
policies as well as those that are not."
In his book, Negroes in Cities (1965), Dr. Taeuber stated that
residential segregation exists "regardless of the character of
local laws and policies, and regardless of the extent of other
forms of segregation or discrimination."
Id. at 36.
[
Footnote 2/10]
A
prima facie case of constitutional violation exists
when segregation is found to a substantial degree in the schools of
a particular district. It is recognized, of course, that this term
is relative and provides no precise standards. But circumstances,
demographic and otherwise, vary from district to district and
hard-and-fast rules should not be formulated. The existence of a
substantial percentage of schools populated by students from one
race only or predominantly so populated, should trigger the
inquiry.
[
Footnote 2/11]
See discussion in
413 U. S.
infra of the remedial action which is appropriate to
accomplish
desegregation where a court finds that a school
board has failed to operate an
integrated school system
within its district. Plaintiffs must, however, establish the
failure of a school board to operate an integrated school system
before a court may order desegregative steps by way of remedy.
These are two distinct steps which recognize the necessity of
proving the constitutional violation before desegregative remedial
action can be ordered.
[
Footnote 2/12]
Indeed, if one goes back far enough, it is probable that all
racial segregation, wherever occurring and whether or not confined
to the schools, has at some time been supported or maintained by
government action. In
Beckett v. School
Board, 308 F.
Supp. 1274, 1311-1315 (ED Va.1969), Judge Hoffman compiled a
summary of past public segregative action which included examples
from a great majority of States. He concluded that
"[o]nly as to the states of Maine, New Hampshire, Vermont,
Washington, Nevada, and Hawaii does it appear from this
nonexhaustive research that no discriminatory laws appeared on the
books at one time or another."
Id. at 1315.
[
Footnote 2/13]
The author continues:
"True, the earlier the policy of segregation was abandoned the
less danger there is that it continues to operate covertly, is
significantly responsible for present day patterns of residential
segregation, or has contributed materially to present community
attitudes toward Negro schools. But there is no reason to suppose
that 1954 is a universally appropriate dividing line between
de
jure segregation that may safely be assumed to have spent
itself and that which may not. For many remedial purposes, adoption
of an arbitrary but easily administrable cut-off point might not be
objectionable. But in a situation such as school desegregation,
where both the rights asserted and the remedial burdens imposed are
of such magnitude, and where the resulting sectional discrimination
is passionately resented, it is surely questionable whether such
arbitrariness is either politically or morally acceptable."
[
Footnote 2/14]
See Bickel,
supra, 413
U.S. 189fn2/7|>n. 7, at 119:
"If a Negro child perceives his separation as discriminatory and
invidious, he is not, in a society a hundred years removed from
slavery, going to make fine distinctions about the source of a
particular separation."
[
Footnote 2/15]
The Court today does not require, however, a segregative intent
with respect to the entire school system, and indeed holds that, if
such an intent is found with respect to some schools in a system,
the burden -- normally on the plaintiffs -- shifts to the defendant
school authorities to prove a negative: namely, that their purposes
were benign,
ante at
413 U. S.
207-209. The Court has come a long way since
Brown
I. Starting from the unassailable
de jure ground of
the discriminatory constitutional and statutory provisions of some
States, the new formulation -- still professing fidelity to the
de jure doctrine -- is that desegregation will be ordered
despite the absence of any segregative laws if: (i) segregated
schools in fact, exist; (ii) a court finds that they result from
some action taken with segregative intent by the school board;
(iii) such action relates to any "meaningful segment" of the school
system; and (iv) the school board cannot prove that its intentions
with respect to the remainder of the system were
nonsegregative.
[
Footnote 2/16]
As one commentator has expressed it:
"If the courts are indeed prepared to inquire into motive,
thorny questions will arise even if one assumes that racial
motivation is capable of being proven at trial. What of the case in
which one or more members of a school board, but less than a
majority, are found to have acted on racial grounds? What if it
appears that the school board's action was prompted by a mixture of
motives, including constitutionally innocent ones that alone would
have prompted the board to act? What if the members of the school
board were not themselves racially inspired, but wished to please
their constituents, many of whom they knew to be so? If such cases
are classified as unconstitutional
de jure segregation,
there is little point in preserving the
de jure-de facto
distinction at all. And it may well be that the difference between
any of these situations and one in which racial motivation is
altogether lacking is too insignificant, from the standpoint of
both the moral culpability of the state officials and the impact
upon the children involved, to support a difference in
constitutional treatment."
Goodman, De Facto School Segregation: A Constitutional and
Empirical Analysis, 60 Calif.L.Rev. 275, 284-285 (1972).
[
Footnote 2/17]
See, e.g., Thompson v. School Board of Newport News,
465 F.2d 83, 87 (1972), where the Fourth Circuit en banc upheld a
district court assignment plan where
"travel time, varying from a minimum of forty minutes and a
maximum of one hour, each way, would be required for busing black
students out of the old City and white students into the old City
in order to achieve a racial balancing of the district."
This transportation was decreed for children from the third
grade up, involving children as young as eight years of age.
In
Northcross v. Board of Education of Memphis City
Schools, 466 F.2d 890, 895 (1972), the Sixth Circuit affirmed
a district court assignment plan which daily transported 14,000
children with "the maximum time to be spent on the buses by any
child [being] 34 minutes . . . ," presumably each way. But as Judge
Weick noted in dissent the Sixth Circuit instructed the district
judge to implement yet further desegregation orders. Plans
presently under consideration by that court call for the busing of
39,085 and 61,530 children respectively, for undetermined lengths
of time.
Id. at 895-896.
Petitioners before this Court in
Potts v. Flax, No.
72-288,
cert. denied, 409 U.S. 1007 (1972), contended that
the implementation of the Fifth Circuit's directive in
Flax v.
Potts, 464 F.2d 865 (1972), would require bus rides of up to
two hours and 20 minutes each day and a round trip of up to 70
miles. Pet. for Cert. 14. While respondents contended these figures
represent an "astounding inflation," Brief in Opposition 7,
transportation of a significant magnitude seems inevitable.
[
Footnote 2/18]
See United States v. Texas Education Agency, 467 F.2d
848, 883 (CA5 1972) (Bell, J., concurring in an opinion in which
seven other judges joined):
"In our view, the remedy which the district court is required to
formulate should be formulated within the
entire context
of the opinion in
Swann v. Charlotte-Mecklenburg Board of
Education. . . ."
(Emphasis added.)
[
Footnote 2/19]
The relevant inquiry is
"whether the costs of achieving desegregation in any given
situation outweigh the legal, moral, and educational considerations
favoring it. . . . It is clear . . . that the Constitution should
not be held to require any transportation plan that keeps children
on a bus for a substantial part of the day, consumes significant
portions of funds otherwise spendable directly on education, or
involves a genuine element of danger to the safety of the
child."
Comment, School Desegregation After
Swann: A Theory of
Government Responsibility, 39 U.Chi.L.Rev. 421, 422, 443
(1972).
[
Footnote 2/20]
A useful study of the historical uses and abuses of the
neighborhood school concept is M. Weinberg, Race & Place
(1967).
[
Footnote 2/21]
In fact, due to racially separate residential patterns that
characterize our major urban areas it is quite unrealistic to think
of achieving in many cities substantial integration throughout the
school district without a degree of student transportation which
would have the gravest economic and educational consequences.
As Professor Bickel notes:
"In most of the larger urban areas, demographic conditions are
such that no policy that a court can order, and a school board, a
city, or even a state has the capability to put into effect, will
in fact, result in the foreseeable future in racially balanced
public schools. Only a reordering of the environment involving
economic and social policy on the broadest conceivable front might
have an appreciable impact."
Bickel,
supra, 413
U.S. 189fn2/7|>n. 7, at 132.
[
Footnote 2/22]
Estimates vary.
Swann, 402 U.S. at
402 U. S. 29,
noted that
"[e]ighteen million of the Nation's public school children,
approximately 39%, were transported to their schools by bus in
1969-1970 in all parts of the country."
Senator Ribicoff, a thoughtful student of this problem, stated
that "[t]wo-thirds of all American children today ride buses to
schools for reasons unrelated to integration." 118 Cong.Rec. 5456
(1972).
[
Footnote 2/23]
Historically, distant transportation was wrongly used to promote
segregation.
"Negro children were generally considered capable of traveling
longer distances to school and without the aid of any vehicle. What
was too far for a white child became reasonably near for a Negro
child,"
Weinberg,
supra, 413
U.S. 189fn2/20|>n. 20, at 87.
This deplorable history has led some to argue that integrative
bus rides are justified as atonement for past segregative trips,
and that neighborhood education is now but a code word for racial
segregation. But misuse of transportation in the past does not
imply neighborhood schooling has no valid nonsegregative uses for
the present. Nor would wrongful transportation in the past justify
detrimental transportation for the children of today.
[
Footnote 2/24]
Some communities had transportation plans in effect at the time
of court desegregation orders.
See Swann, supra, at
405 U. S. 29 n.
11;
Davis v. Board of School Commissioners of Mobile
County, 402 U. S. 33,
402 U. S. 34-35
(1971). Courts have used the presence or absence of existing
transportation in a district as one factor in framing and
implementing desegregation decrees.
United States v. Watson
Chapel School District, 446 F.2d 933, 937 (CA8 1971);
Northcross v. Board of Education of Memphis City School,
444 F.2d 1179, 1182-1183 (CA6 1971);
Davis v. Board of
Education of North Little Rock, 328
F. Supp. 1197, 1203 (ED Ark.1971). Where a school board is
voluntarily engaged in transporting students, a district court is,
of course, obligated to insure that such transportation is not
undertaken with segregative effect. Where, also, voluntary
transportation programs are already in progress, there may be
greater justification for court-ordered transportation of students
for a comparable time and distance to achieve greater
integration.
[
Footnote 2/25]
The term "neighborhood school" should not be supposed to denote
solely a walk-in school or one which serves children only in the
surrounding blocks. The Court has noted, in a different context,
that
"[t]he word 'neighborhood' is quite as susceptible of variation
as the word 'locality.' Both terms are elastic and, dependent upon
circumstances, may be equally satisfied by areas measured by rods
or by miles."
Conally v. General Construction Co., 269 U.
S. 385,
269 U. S. 395
(1926). In the school context, "neighborhood" refers to relative
proximity, to a preference for a school nearer to, rather than more
distant from, home.
[
Footnote 2/26]
I do not imply that the neighborhood concept must be embodied in
every school system. But where a school board has chosen it,
federal judges should accord it respect in framing remedial
decrees.
[
Footnote 2/27]
Slums and Suburbs 29 (1961).
[
Footnote 2/28]
See 413
U.S. 189fn2/21|>n. 21,
supra.
[
Footnote 2/29]
In Memphis, for example, which has no history of busing
students, the minimum transportation plan ordered by the courts
will require, in the School Board's estimate, an initial capital
expenditure of $1,664,192 for buses plus an annual operating cost
of $629,192. The Board estimates that a more extensive
transportation program to be considered by the district court will
require initial capital investments of $3,924,000 and annual
operating costs of $1,783,490. The most drastic transportation plan
before the district court requires estimated annual operating costs
of from $2,354,220, $2,431,710, or $3,463,100 depending on the
Board's transportation arrangements.
Northcross v. Board of
Education of Memphis City Schools, 466 F.2d at 898 (Weick, J.,
dissenting).
[
Footnote 2/30]
See 413
U.S. 189fn2/9|>n. 9,
supra.
[
Footnote 2/31]
There may well be advantages in commencing the integrative
experiences at an early age, as young children may be less likely
than older children and adults to develop an inhibiting racial
consciousness. These advantages should be considered as school
boards make the various decisions with the view to achieving and
preserving an integrated school system.
Supra at
413 U. S.
226-227. But in the balancing of all relevant interests,
the advantages of an early integrative experience must, and in all
fairness should, be weighed against other relevant advantages and
disadvantages and in light of the demographic characteristics of
the particular community.
[
Footnote 2/32]
While greater transportation of secondary school students might
be permitted, even at this level, the desire of a community for
racially neutral neighborhood schools should command judicial
respect. It would ultimately be wisest, where there is no absence
of good faith, to permit affected communities to decide this
delicate issue of student transportation on their own.
MR. JUSTICE REHNQUIST, dissenting.
I
The Court notes at the outset of its opinion the differences
between the claims made by the plaintiffs in this case and the
classical "
de jure" type of claims made by plaintiffs in
cases such as
Brown v. Board of Education, 347 U.
S. 483 (1954), and its progeny. I think the similarities
and differences, not only in the claims, but in the nature of he
constitutional violation, deserve somewhat more attention than the
Court gives them.
In
Brown, the Court held unconstitutional statutes then
prevalent in Southern and border States mandating that Negro
children and white children attend separate schools. Under such a
statute, of course, every child in the school system is segregated
by race, and there is no racial mixing whatever in the population
of any particular school.
It is conceded that the State of Colorado and the city of Denver
have never had a statute or ordinance of that description. The
claim made by these plaintiffs, as described in the Court's
opinion, is that the School Board, by "use of various techniques
such as the manipulation of student attendance zones, schoolsite
selection and a neighborhood school policy," took race into account
in making school assignments in such a way as to lessen that mixing
of races which would have resulted from a racially neutral policy
of school assignment. If such claims are proved, those minority
students who, as a result of such manipulative techniques, are
forced to attend schools other than those that they would have
attended had attendance zones been neutrally drawn are undoubtedly
deprived of their constitutional right to equal protection of the
laws just as surely as were the plaintiffs in
Brown v. Board of
Education by the statutorily required segregation in that
case. But the fact that invidious
Page 413 U. S. 255
racial discrimination is prohibited by the Constitution in the
North, as well as the South, must not be allowed to obscure the
equally important fact that the consequences of manipulative
drawing of attendance zones in a school district the size of Denver
does not necessarily result in denial of equal protection to all
minority students within that district. There are significant
differences between the proof which would support a claim such as
that alleged by plaintiffs in this case and the total segregation
required by statute which existed in
Brown.
The Court's opinion obscures these factual differences between
the situation shown by the record to have existed in Denver and the
situations dealt with in earlier school desegregation opinions of
the Court. The Court states,
ante at
413 U. S. 200,
that
"[w]e have never suggested that plaintiffs in school
desegregation cases must bear the burden of proving the elements of
de jure segregation as to each and every school or each
and every student within the school system. Rather, we have held
that, where plaintiffs prove that a current condition of segregated
schooling exists within a school district where a dual system was
compelled or authorized by statute at the time of our decision in
Brown v. Board of Education, 347 U. S.
483 (1954) (
Brown I), the State automatically
assumes an affirmative duty 'to effectuate a transition to a
racially nondiscriminatory school system,'
Brown v. Board of
Education, 349 U. S. 294,
349 U. S.
301 (1955) (
Brown II). . . ."
That statement is, of course, correct in the
Brown
context, but, in the
Brown cases and later ones that have
come before the Court, the situation which had invariably obtained
at one time was a "dual" school system mandated by law, by a law
which prohibited Negroes and whites from attending the same
schools. Since, under
Brown, such a law deprived each
Negro child of the equal protection of the laws, there was no need
to prove "the
Page 413 U. S. 256
elements of
de jure segregation as to each and every
school," since the law itself had required just that sort of
segregation.
But in a school district the size of Denver's, it is quite
conceivable that the School Board might have engaged in the racial
gerrymandering of the attendance boundary between two particular
schools in order to keep one largely Negro and Hispano, and the
other largely Anglo, as the District Court found to have been the
fact in this case. Such action would have deprived affected
minority students who were the victims of such gerrymandering of
their constitutional right to equal protection of the laws. But if
the school board had been evenhanded in its drawing of the
attendance lines for other schools in the district, minority
students required to attend other schools within the district would
have suffered no such deprivation. It certainly would not reflect
normal English usage to describe the entire district as
"segregated" on such a state of facts, and it would be a quite
unprecedented application of principles of equitable relief to
determine that, if the gerrymandering of one attendance zone were
proved, particular racial mixtures could be required by a federal
district court for every school in the district.
It is quite possible, of course, that a school district
purporting to adopt racially neutral boundary zones might, with
respect to every such zone, invidiously discriminate against
minorities, so as to produce substantially the same result as was
produced by the statutorily decreed segregation involved in
Brown. If that were the case, the consequences would
necessarily have to be the same as were the consequences in
Brown. But, in the absence of a statute requiring
segregation, there must necessarily be the sort of factual inquiry
which was unnecessary in those jurisdictions where racial mixing in
the schools was forbidden by law.
Page 413 U. S. 257
Underlying the Court's entire opinion is its apparent thesis
that a district judge is at least permitted to find that, if a
single attendance zone between two individual schools in the large
metropolitan district is found by him to have been "gerrymandered,"
the school district is guilty of operating a "dual" school system,
and is apparently a candidate for what is in practice a federal
receivership. Not only the language of the Court in the opinion,
but its reliance on the case of
Green v. County School
Board, 391 U. S. 430,
391 U. S.
437-438 (1968), indicates that such would be the case.
It would therefore presumably be open to the District Court to
require,
inter alia, that pupils be transported great
distances throughout the district to and from schools whose
attendance zones have not been gerrymandered. Yet, unless the Equal
Protection Clause of the Fourteenth Amendment now be held to embody
a principle of "taint," found in some primitive legal systems but
discarded centuries ago in ours, such a result can only be
described as the product of judicial fiat.
Green, supra, represented a marked extension of the
principles of
Brown v. Boar of Education, supra. The Court
in
Green said:
"It is, of course, true that, for the time immediately after
Brown
II [
349 U.S.
294], the concern was with making an initial break in a
long-established pattern of excluding Negro children from schools
attended by white children. . . . Under
Brown II, that
immediate goal was only the first step, however. The transition to
a unitary, nonracial system of public education was and is the
ultimate end to be brought about. . . ."
391 U.S. at
391 U. S.
435-436.
Brown II was a call for the
dismantling of well entrenched dual systems tempered by an
awareness that complex and multifaceted problems would arise
Page 413 U. S. 258
which would require time and flexibility for a successful
resolution. School boards such as the respondent then operating
state-compelled dual systems were nevertheless clearly charged with
the affirmative duty to take whatever steps might be necessary to
convert to a unitary system in which racial discrimination would be
eliminated root and branch.
Id. at
391 U. S.
437-438.
The drastic extension of Brown which
Green represented
was barely, if at all, explicated in the latter opinion. To require
that a genuinely "dual" system be disestablished, in the sense that
the assignment of a child to a particular school is not made to
depend on his race, is one thing. To require that school boards
affirmatively undertake to achieve racial mixing in schools where
such mixing is not achieved in sufficient degree by neutrally drawn
boundary lines is quite obviously something else.
The Court's own language in
Green makes it unmistakably
clear that this significant extension of
Brown's
prohibition against discrimination, and the conversion of that
prohibition into an affirmative duty to integrate, was made in the
context of a school system which had for a number of years rigidly
excluded Negroes from attending the same schools as were attended
by whites. Whatever may be the soundness of that decision in the
context of a genuinely "dual" school system, where segregation of
the races had once been mandated by law, I can see no
constitutional justification for it in a situation such as that
which the record shows to have obtained in Denver.
II
The Court's opinion gives lip service to the notion that the
inquiry as to whether or not the Denver school district was
"segregated" is a factual one, though it refers
Page 413 U. S. 259
in various critical language to the District Court's refusal to
find that minority concentration in the core area schools was the
result of discriminatory action on the part of the school board.
The District Court is said to have "fractionated" the district,
ante at
413 U. S. 193,
and to have "held that its finding of intentional segregation in
Park Hill was not in any sense material to the question of
segregative intent in other areas of the city,"
ibid. It
is difficult to know what the Court means by the first of these
references, and even more difficult to justify the second in the
light of the District Court's opinion.
If, by "fractionating" the district, the Court means that the
District Court treated together events that occurred during the
same time period, and that it treated those events separately from
events that occurred during another time span, this is undoubtedly
correct. This is the approach followed by most experienced and
careful finders of fact.
In commencing that part of its comprehensive opinion which dealt
with the "core area" schools, the District Court observed:
"The evidentiary as well as the legal approach to the remaining
schools is quite different from that which has been outlined above.
For one thing, the concentration of minorities occurred at an
earlier date and, in some instances, prior to the
Brown decision by the Supreme Court. Community attitudes
were different, including the attitudes of the School Board
members.
Furthermore, the transitions were much more gradual
and less perceptible than they were in the Park Hill
schools."
313 F. Supp.
61, 69. (Emphasis supplied.)
The District Court noted, in its opinion of July 31, 1969, the
differentiation that the plaintiffs themselves had made between the
so-called "Park Hill" schools and
Page 413 U. S. 260
the "core area" schools. The plaintiffs had sought a preliminary
injunction prohibiting the school board from rescinding three
resolutions which had been adopted by a differently composed school
board earlier in 1969 and which would have redrawn school boundary
lines in the Park Hill area to achieve greater integration. In its
opinion granting that injunction, the District Court said:
"Attention at this hearing has focused primarily on the schools
in northeast Denver, and particularly on the area which is commonly
called Park Hill. The alleged segregated schools, elementary and
junior high schools in this area, have acquired their character as
such during the past ten years. The primary reason for this has
been the migration of the Negro community eastward from a confined
community surrounding what is commonly called 'Five Points.' Before
1950, the Negroes all lived in a community bounded roughly by 20th
Avenue on the south, 20th Street on the west, York Street on the
east, and 38th Avenue on the north. The schools in this area were,
and are now, largely Negro schools. However, we are not presently
concerned with the validity of this condition. During this period,
the Negro population was relatively small, and this condition had
developed over a long period of time. However, by 1960 and, indeed,
at the present time this population is sizeable. As the population
has expanded, the move has been to the east, first to Colorado
Boulevard, a natural dividing line, and later beyond Colorado
Boulevard, but within a narrow corridor -- more or less fixed
north-south boundaries. The migration caused these areas to become
substantially Negro and segregated."
303 F.
Supp. 279, 282.
Further reference to the District Court's several opinions
Page 413 U. S. 261
shows that the allegedly discriminatory acts of the School Board
in the Park Hill area occurred between 1960 and 1969, in the
context of a steadily expanding Negro school population in the Park
Hill area and heightened sensitivity on the part of the community
to the problems raised by integration and segregation.
The allegedly discriminatory acts with respect to the "core
area" schools -- New Manual High School, Cole Junior High School,
Morey Junior High School, and Boulevard and Columbine Elementary
Schools -- took place between the years 1952 and 1961. They took
place, as indicated by the references to the District Court's
opinion noted above, not in a context of a rapidly expanding Negro
population, but in a context of a relatively fixed area of the city
that had for an indefinite period of time been predominantly
Negro.
Thus, quite contrary to the intimation of virtual arbitrariness
contained in the Court's opinion, the District Court's separate
treatment of the claims respecting these two separate areas was
absolutely necessary if a careful factual determination, rather
than a jumbled hash of unrelated events, was to emerge from the
factfinding process. The "intent" with which a public body performs
an official act is difficult enough to ascertain under the most
favorable circumstances.
See Palmer v. Thompson,
403 U. S. 217
(1971);
McGinnis v. Royster, 410 U.
S. 263 (1973). Far greater difficulty is encountered if
we are to assess the intentions with which official acts of a
school board are performed over a period of years. Not only does
the board consist of a number of members, but the membership
customarily turns over as a result of frequent periodic elections.
Indeed, it was as a result of the 1969 election for membership on
the Denver School Board that the Board's policy which had
previously favored the correction of racial imbalance by
Page 413 U. S. 262
implementation of resolutions was reversed by the election of
new members to the Board.
These difficulties obviously do at mean that the inquiry must be
abandoned, but they do suggest that the care with which the
District Court conducted it in this case is an absolutely essential
ingredient to its successful conclusion.
The Court's bald statement that the District Court
"held that its finding of intentional segregation in Park Hill
was not in any sense material to the question of segregative intent
in other areas of the city"
is flatly belied by the following statement in the District
Court's opinion:
"Although past discriminatory acts may not be a substantial
factor contributing to present segregation, they may nevertheless
be probative on the issue of the segregative purpose of other
discriminatory acts which are, in fact, a substantial factor in
causing a present segregated situation."
313 F. Supp. at 775, n. 18.
Thus, it is apparent that the District Court was fully aware
that it might take into consideration the intention with which it
found the School Board to have performed one act in assessing its
intention in performing another act. This is the most that the
references in the Court's opinion to evidentiary treatises such as
Wigmore and McCormick support. And it should be noted that the
cases cited by the Court, and by the authors of the treatises,
almost invariably deal with the intention of a particular
individual or individuals, and not with the "intention" of a public
body whose membership is constantly changing.
The Court's opinion totally confuses the concept of a
permissible inference in such a situation, of which the District
Court indicated it was well aware, with what
Page 413 U. S. 263
the Court calls a "presumption," which apparently "shifts . . .
the burden of proving" to the defendant school authority. No case
from this Court has ever gone further in this area than to suggest
that a finding of intent in one factual situation may support a
finding of fact in another related factual situation involving the
same factor, a principle with which, as indicated above, the
District Court was thoroughly familiar.
The District Court cases cited by the Court represent almost
entirely the opinions of judges who were themselves finders of
fact, concluding as a part of the factfinding process that intent
with respect to one act may support a conclusion of a like intent
with respect to another. This is but a restatement of the principle
of which the District Court showed it was aware. And, obviously,
opinions of courts of appeals upholding such findings of the
District Court do not themselves support any broader proposition
than do the opinions of the District Court in question.
Chambers v. Hendersonville City Board of Education, 364
F.2d 189 (CA4 1966), and
North Carolina Teachers Assn. v.
Asheboro City Board of Education, 393 F.2d 736 (CA4 1968),
involved a background of segregation by a law in the State of North
Carolina and "the failure of the public school system to
desegregate in compliance with the mandate of
Brown until
forced to do so by litigation." 364 F.2d at 192. The courts held
that the decimation in the ranks of the Negro teachers while white
teachers were unaffected, raised an inference of discrimination
which cast upon the school board the burden of justifying such
decimation. In each case, the school board had offered virtually no
evidence supporting any nondiscriminatory basis for the result
reached. The cases are thus wholly different in their factual
background from the case now before the Court.
Page 413 U. S. 264
Also worthy of note is the fact that neither in
Chambers nor in
Asheboro did the Court of Appeals
remand for a further hearing, but in effect ordered judgments for
the appellants on the issues considered. This amounted to a
determination that the factual finding of the District Court on
that issue was "clearly erroneous," and the statement as to
presumption was a statement as to the appellate court's method of
evaluating the factual finding. This Court is in quite a different
position in reviewing this case, with the factual finding of the
District Court having been affirmed by the Court of Appeals for the
Tenth Circuit, than was the Court of Appeals for the Fourth Circuit
in reviewing the factual findings of the District Courts that were
before it in
Chambers and in
Asheboro. Indeed, it
would be contrary to settled principles for this Court to upset a
factual finding sustained by the Court of Appeals.
"A seasoned and wise rule of this Court makes concurrent
findings of two courts below final here in the absence of very
exceptional showing of error."
Comstock v. Group of Institutional Investors,
335 U. S. 211,
335 U. S. 214
(1948).
The Court, doubtless realizing the difficulty of justifying an
outright reversal, instead remands for further factual
determination under newly enunciated standards governing the
evidentiary treatment of the finding as to Park Hill by the
District Court. These standards call in some parts of the opinion
for establishing a presumption, in other parts for shifting the
burden of proof, and in other parts for recognizing a
prima
facie case. Quite apart from my disagreement with the majority
on its constitutional law, I cannot believe it is a service to any
of the parties to this litigation to require further factual
determination under such a vague and imprecise mandate. But, more
fundamentally, I believe that a District Judge thoroughly
sympathetic to the plaintiffs' claims gave them the full
evidentiary hearing to which
Page 413 U. S. 265
they were entitled and carefully considered all of the evidence
before him. He showed full awareness of the evidentiary principle
that he might infer from the "segregative intent" with which he
found the Board to have acted in the Park Hill area a like intent
with respect to the core area, but he deliberately declined to do
so. This was his prerogative as the finder of fact, and his
conclusion upon its affirmance by the Court of Appeals is binding
upon us.
III
The Court has taken a long leap in this area of constitutional
law in equating the district-wide consequences of gerrymandering
individual attendance zones in a district where separation of the
races was never required by law with statutes or ordinances in
other jurisdictions which did so require. It then adds to this
potpourri a confusing enunciation of evidentiary rules in order to
make it more likely that the trial court will on remand reach the
result which the Court apparently wants it to reach. Since I
believe neither of these steps is justified by prior decisions of
this Court, I dissent.