Termination of Court Supervision
Development and Application of "Separate But Equal".— Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race,1509 but the Court in Plessy v. Ferguson1510 adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.1511 Plessy concerned not schools but a state law requiring "equal but separate" facilities for rail transportation and requiring the separation of "white and colored" passengers. "The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power."1512 The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, "even by courts of states where the political rights of the colored race have been longest and most earnestly enforced."1513
1509 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67-72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-08 (1880); Virginia v. Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344-45 (1880).
1510 163 U.S. 537 (1896).
1511 Roberts v. City of Boston, 59 Mass. 198, 206 (1849).
1512 Plessy v. Ferguson, 163 U.S. 537, 543-44 (1896). "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id. at 552, 559.
1513 163 U.S. at 544-45. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice Harlan's well-known dissent contended that the purpose and effect of the law in question was discriminatory and stamped African Americans with a badge of inferiority. "[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Id. at 552, 559.
Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court's decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with whites,1514 and it upheld the refusal of an injunction to require a school board to close a white high school until it opened a high school for African Americans.1515 And no violation of the equal protection clause was found when a state law prohibited a private college from teaching whites and African Americans together.1516
In 1938, the Court began to move away from "separate but equal." It then held that a State which operated a law school open to whites only and which did not operate any law school open to African Americans violated an applicant's right to equal protection, even though the State offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the State.1517 When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the white school necessarily meant that the separate school was unequal.1518 Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students.1519
Brown v. Board of Education.—"Separate but equal" was formally abandoned in Brown v. Board of Education,1520 involving challenges to segregation per se in the schools of four States in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not "turn the clock back to 1867. . . or even to 1896," but must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the equal protection clause was violated by such separation. "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."1521
1514 Gong Lum v. Rice, 275 U.S. 78 (1927).
1515 Cummings v. Richmond County Bd. of Educ., 175 U.S. 528 (1899).
1516 Berea College v. Kentucky, 211 U.S. 45 (1908).
1518 Sweatt v. Painter, 339 U.S. 629 (1950).
1519 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
After hearing argument on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. "At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis." The lower courts were directed to "require that the defendants make a prompt and reasonable start toward full compliance," although "[o]nce such a start has been made," some additional time would be needed because of problems arising in the course of compliance and the lower courts were to allow it if on inquiry delay were found to be "in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system." But in any event the lower courts were to require compliance "with all deliberate speed."1522
Brown's Aftermath.—For the next several years, the Court declined to interfere with the administration of its mandate, ruling only in those years on the efforts of Arkansas to block desegregation of schools in Little Rock.1523 In the main, these years were taken up with enactment and administration of "pupil placement laws" by which officials assigned each student individually to a school on the basis of formally nondiscriminatory criteria, and which required the exhaustion of state administrative remedies before each pupil seeking reassignment could bring individual litigation.1524 The lower courts eventually began voiding these laws for discriminatory application, permitting class actions,1525 and the Supreme Court voided the exhaustion of state remedies requirement.1526 In the early 1960's, various state practices—school closings,1527 minority transfer plans,1528 zoning,1529 and the like—were ruled impermissible, and the Court indicated that the time was running out for full implementation of the Brown mandate.1530
1523 Cooper v. Aaron, 358 U.S. 1 (1958).
1524 E.g., Covington v. Edwards, 264 F.2d 780 (4th Cir.), cert. denied, 361 U.S. 840 (1959); Holt v. Raleigh City Bd. of Educ., 265 F.2d 95 (4th Cir.), cert. denied, 361 U.S. 818 (1959); Dove v. Parham, 271 F.2d 132 (8th Cir. 1959).
1525 E.g., McCoy v. Greensboro City Bd. of Educ., 283 F.2d 667 (4th Cir. 1960); Green v. School Board of Roanoke, 304 F.2d 118 (4th Cir. 1962); Gibson v. Board of Pub. Instruction of Dade County, 272 F.2d 763 (5th Cir. 1959); Northcross v. Board of Educ. of Memphis, 302 F.2d 818 (6th Cir. 1962), cert. denied, 370 U.S. 944 (1962).
1526 McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963).
1527 Griffin v. Board of Supervisors of Prince Edward County, 377 U.S. 218 (1964) (holding that "under the circumstances" the closing by a county of its schools while all the other schools in the State were open denied equal protection, the circumstances apparently being the state permission and authority for the closing and the existence of state and county tuition grant/tax credit programs making an official connection with the "private" schools operating in the county and holding that a federal court is empowered to direct the appropriate officials to raise and expend money to operate schools). On school closing legislation in another State, see Bush v. Orleans Parish School Bd., 187 F. Supp. 42, 188 F. Supp. 916 (E.D. La. 1960), aff'd, 365 U.S. 569 (1961); Hall v. St. Helena Parish School Bd., 197 F. Supp. 649 (E.D. La. 1961), aff'd, 368 U.S. 515 (1962).
1528 Goss v. Knoxville Bd. of Educ., 373 U.S. 683 (1963). Such plans permitted as of right a student assigned to a school in which students of his race were a minority to transfer to a school where the student majority was of his race.
1529 Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th Cir. 1964).
1530 The first comment appeared in dictum in a nonschool case, Watson v. City of Memphis, 373 U.S. 526, 530 (1963), and was implied in Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683, 689 (1963). In Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 105 (1965), the Court announced that "[d]elays in desegregating school systems are no longer tolerable." A grade-a-year plan was implicitly disapproved in Calhoun v. Latimer, 377 U.S. 263 (1964), vacating and remanding, 321 F.2d 302 (5th Cir. 1963). See Singleton v. Jackson Municipal Separate School Dist., 355 F.2d 865 (5th Cir. 1966).
About this time, "freedom of choice" plans were promulgated under which each child in the school district could choose each year which school he wished to attend, and, subject to space limitations, he could attend that school. These were first approved by the lower courts as acceptable means to implement desegregation, subject to the reservation that they be fairly administered.1531 Enactment of Title VI of the Civil Rights Act of 1964 and HEW enforcement in a manner as to require effective implementation of affirmative actions to desegregate1532 led to a change of attitude in the lower courts and the Supreme Court. In Green v. School Board of New Kent County,1533 the Court posited the principle that the only desegregation plan permissible is one which actually results in the abolition of the dual school, and charged school officials with an affirmative obligation to achieve it. School boards must present to the district courts "a plan that promises realistically to work and promises realistically to work now," in such a manner as "to convert promptly to a system without a 'white' school and a 'Negro' school, but just schools."1534 Furthermore, as the Court and lower courts had by then made clear, school desegregation encompassed not only the abolition of dual attendance systems for students, but also the merging into one system of faculty,1535 staff, and services, so that no school could be marked as either a "black" or a "white" school.1536
1531 E.g., Bradley v. School Bd. of City of Richmond, 345 F.2d 310 (4th Cir.), rev'd on other grounds, 382 U.S. 103 (1965); Bowman v. School Bd. of Charles City County, 382 F.2d 326 (4th Cir. 1967).
1532 Pub. L. 88-352, 78 Stat. 252, 42 U.S.C. § 2000d et seq. (prohibiting discrimination in federally assisted programs). HEW guidelines were designed to afford guidance to state-local officials in interpretations of the law and were accepted as authoritative by the courts and utilized. Davis v. Board of School Comm'rs of Mobile County, 364 F.2d 896 (5th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965).
1533 391 U.S. 430 (1968); Raney v. Gould Bd. of Educ., 391 U.S. 443 (1968). These cases had been preceded by a circuit-wide promulgation of similar standards in United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified & aff'd. en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967).
1534 Green, 391 U.S. at 439, 442 (1968). "Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multi-faceted problems would arise 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 437-38. The case laid to rest the dictum of Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 1955), that the Constitution "does not require integration" but "merely forbids discrimination." Green and Raney v. Board of Educ. of Gould School Dist., 391 U.S. 443 (1968), found "freedom of choice" plans inadequate, and Monroe v. Board of Comm'rs of City of Jackson, 391 U.S. 450 (1968), found a "free transfer" plan inadequate.
1535 Bradley v. School Bd. of City of Richmond, 382 U.S. 103 (1965) (faculty desegregation is integral part of any pupil desegregation plan); United States v. Montgomery County Bd. of Educ., 395 U.S. 225 (1969) (upholding district court order requiring assignment of faculty and staff on a ratio based on racial population of district).
1536 United States v. Jefferson County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), mod. & aff'd en banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967).
Implementation of School Desegregation.—In the aftermath of Green, the various Courts of Appeals held inadequate an increasing number of school board plans based on "freedom of choice," on zoning which followed traditional residential patterns, or on some combination of the two.1537 The Supreme Court's next opportunity to speak on the subject came when HEW sought to withdraw desegregation plans it had submitted at court request and asked for a postponement of a court-imposed deadline, which was reluctantly granted by the Fifth Circuit. The Court unanimously reversed and announced that "continued operation of segregated schools under a standard of allowing 'all deliberate speed' for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools."1538
1537 Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th Cir.), cert. denied, 396 U.S. 904 (1969); Henry v. Clarksdale Mun. Separate School Dist., 409 F.2d 682 (5th Cir.), cert. denied, 396 U.S. 940 (1969); Brewer v. School Bd. of City of Norfolk, 397 F.2d 37 (4th Cir. 1968); Clark v. Board of Educ. of City of Little Rock, 426 F.2d 1035 (8th Cir. 1970).
1538 Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969). The Court summarily reiterated its point several times in the Term. Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970); Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970); Dowell v. Board of Educ. of Oklahoma City, 396 U.S. 269 (1969).
In the October 1970 Term the Court in Swann v. Charlotte-Mecklenburg Board of Education1539 undertook to elaborate the requirements for achieving a unitary school system and delineating the methods which could or must be used to achieve it, and at the same time struck down state inhibitions on the process.1540 The opinion in Swann emphasized that the goal since Brown was the dismantling of an officially-imposed dual school system. "Independent of student assignment, 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."1541 While "the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law," any such situation must be closely scrutinized by the lower courts, and school officials have a heavy burden to prove that the situation is not the result of state-fostered segregation. Any desegregation plan which contemplates such a situation must before a court accepts it be shown not to be affected by present or past discriminatory action on the part of state and local officials.1542 When a federal court has to develop a remedial desegregation plan, it must start with an appreciation of the mathematics of the racial composition of the school district population; its plan may rely to some extent on mathematical ratios but it should exercise care that this use is only a starting point.1543
Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible.1544 Transportation of students—busing—is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.1545 Finally, the Court indicated, once a unitary system has been established, no affirmative obligation rests on school boards to adjust attendance year by year to reflect changes in composition of neighborhoods so long as the change is solely attributable to private action.1546
1541 402 U.S. at 18.
1542 402 U.S. at 25-27.
1543 402 U.S. at 22-25.
1544 402 U.S. at 27-29.
1545 402 U.S. at 29-31.
1546 402 U.S. at 31-32. In Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976), the Court held that after a school board has complied with a judicially-imposed desegregation plan in student assignments and thus undone the existing segregation, it is beyond the district court's power to order it subsequently to implement a new plan to undo the segregative effects of shifting residential patterns. The Court agreed with the dissenters, Justices Marshall and Brennan, id. at 436, 441, that the school board had not complied in other respects, such as in staff hiring and promotion, but it thought that was irrelevant to the issue of neutral student assignments.
Northern Schools: Inter- and Intradistrict Desegregation.—The appearance in the Court of school cases from large metropolitan areas in which the separation of the races was not mandated by law but allegedly by official connivance through zoning of school boundaries, pupil and teacher assignment policies, and site selections, required the development of standards for determining when segregation was de jure and what remedies should be imposed when such official separation was found.1547
Accepting the findings of lower courts that the actions of local school officials and the state school board were responsible in part for the racial segregation existing within the school system of the City of Detroit, the Court in Milliken v. Bradley1548 set aside a desegregation order which required the formulation of a plan for a metropolitan area including the City and 53 adjacent suburban school districts. The basic holding of the Court was that such a remedy could be implemented only to cure an inter-district constitutional violation, a finding that the actions of state officials and of the suburban school districts were responsible, at least in part, for the interdistrict segregation, through either discriminatory actions within those jurisdictions or constitutional violations within one district that had produced a significant segregative effect in another district.1549 The permissible scope of an inter-district order, however, would have to be considered in light of the Court's language regarding the value placed upon local educational units. "No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process."1550 Too, the complexity of formulating and overseeing the implementation of a plan that would effect a de facto consolidation of multiple school districts, the Court indicated, would impose a task which few, if any, judges are qualified to perform and one which would deprive the people of control of their schools through elected representatives.1551 "The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district."1552
1547 The presence or absence of a statute mandating separation provides no talisman indicating the distinction between de jure and de facto segregation. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457 n.5 (1979). As early as Ex parte Virginia, 100 U.S. 339, 347 (1880), it was said that "no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws . . . violates the constitutional inhibition: and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." The significance of a statute is that it simplifies in the extreme a complainant's proof.
1548 418 U.S. 717 (1974).
1549 418 U.S. at 745.
1550 418 U.S. at 741-42.
1551 418 U.S. at 742-43. This theme has been sounded in a number of cases in suits seeking remedial actions in particularly intractable areas. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 (1974); O'Shea v. Littleton, 414 U.S. 488, 500-02 (1974). In Hills v. Gautreaux, 425 U.S. 284, 293 (1976), the Court wrote that it had rejected the metropolitan order because of "fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state governmental entities …" In other places, the Court stressed the absence of interdistrict violations, id. at 294, and in still others paired the two reasons. Id. at 296.
1552 Milliken v. Bradley, 418 U.S. 717, 746 (1974). The four dissenters argued both that state involvement was so pervasive that an inter-district order was permissible and that such an order was mandated because it was the State's obligation to establish a unitary system, an obligation which could not be met without an inter-district order. Id . at 757, 762, 781.
"The controlling principle consistently expounded in our holdings," said the Court in the Detroit case, "is that the scope of the remedy is determined by the nature and extent of the constitutional violation."1553 While this axiom caused little problem when the violation consisted of statutorily mandated separation,1554 it has required a considerable expenditure of judicial effort and parsing of opinions to work out in the context of systems in which the official practice was nondiscriminatory but official action operated to the contrary. At first, the difficulty was obscured through the creation of presumptions that eased the burden of proof on plaintiffs, but later the Court had appeared to stiffen the requirements on plaintiffs.
1553 418 U.S. at 744. See Hills v. Gautreaux, 425 U.S. 284, 294 n.11 (1976) ("[T]he Court's decision in Milliken was premised on a controlling principle governing the permissible scope of federal judicial power."); Austin Indep. School Dist. v. United States, 429 U.S. 990, 991 (1976) (Justice Powell concurring) ("a core principle of desegregation cases" is that set out in Milliken).
1554 When an entire school system has been separated into white and black schools by law, disestablishment of the system and integration of the entire system is required. "Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation… The measure of any desegregation plan is its effectiveness." Davis v. Board of School Comm'rs, 402 U.S. 33, 37 (1971). See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25 (1971).
Determination of the existence of a constitutional violation and the formulation of remedies, within one district, first was presented to the Court in a northern setting in Keyes v. Denver School District.1555 The lower courts had found the school segregation existing within one part of the City to be attributable to official action, but as to the central city they found the separation not to be the result of official action and refused to impose a remedy for those schools. The Supreme Court found this latter holding to be error, holding that when it is proved that a significant portion of a system is officially segregated, the presumption arises that segregation in the remainder or other portions of the system is also similarly contrived. The burden the shifts to the school board or other officials to rebut the presumption by proving, for example, that geographical structure or natural boundaries have caused the dividing of a district into separate identifiable and unrelated units. Thus, a finding that one significant portion of a school system is officially segregated may well be the predicate for finding that the entire system is a dual one, necessitating the imposition upon the school authorities of the affirmative obligation to create a unitary system throughout.1556
Keyes then was consistent with earlier cases requiring a showing of official complicity in segregation and limiting the remedy to the violation found; by creating presumptions Keyes simply afforded plaintiffs a way to surmount the barriers imposed by strict application of the requirements. Following the enunciation in the Detroit inter-district case, however, of the "controlling principle" of school desegregation cases, the Court appeared to move away from the Keyes approach.1557 First, the Court held that federal equity power was lacking to impose orders to correct demographic shifts "not attributed to any segregative actions on the part of the defendants."1558 A district court that had ordered implementation of a student assignment plan that resulted in a racially neutral system exceeded its authority, the Court held, by ordering annual readjustments to offset the demographic changes.1559
1555 413 U.S. 189 (1973).
1556 413 U.S. at 207-11. Justice Rehnquist argued that imposition of a district-wide segregation order should not proceed from a finding of segregative intent and effect in only one portion, that in effect the Court was imposing an affirmative obligation to integrate without first finding a constitutional violation. Id. at 254 (dissenting). Justice Powell cautioned district courts against imposing disruptive desegregation plans, especially substantial busing in large metropolitan areas, and stressed the responsibility to proceed with reason, flexibility, and balance. Id. at 217, 236 (concurring and dissenting). See his opinion in Austin Indep. School Dist. v. United States, 429 U.S. 990, 991 (1976) (concurring).
1557 Of significance was the disallowance of the disproportionate impact analysis in constitutional interpretation and the adoption of an apparently strengthened intent requirement. Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Massachusetts Personnel Adm'r v. Feeney, 442 U.S. 256 (1979). This principle applies in the school area. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419 (1977).
1558 Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976).
1559 427 U.S. at 436.
Second, in the first Dayton case the lower courts had found three constitutional violations that had resulted in some pupil segregation, and, based on these three, viewed as "cumulative violations," a district-wide transportation plan had been imposed. Reversing, the Supreme Court reiterated that the remedial powers of the federal courts are called forth by violations and are limited by the scope of those violations. "Once a constitutional violation is found, a federal court is required to tailor 'the scope of the remedy' to fit 'the nature and extent of the constitutional violation."'1560 The goal is to restore the plaintiffs to the position they would have occupied had they not been subject to unconstitutional action. Lower courts "must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy."1561 The Court then sent the case back to the district court for the taking of evidence, the finding of the nature of the violations, and the development of an appropriate remedy.
1561 Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977). The Court did not discuss the presumptions that had been permitted by Keyes. Justice Brennan, the author of Keyes, concurred on the basis that the violations found did not justify the remedy imposed, asserting that the methods of proof utilized in Keyes were still valid. Id. at 421.
Surprisingly, however, Keyes was reaffirmed and broadly applied in subsequent appeals of the Dayton case after remand and in an appeal from Columbus, Ohio.1562 Following the Supreme Court standards, the Dayton district court held that the plaintiffs had failed to prove official segregative intent, but was reversed by the appeals court. The Columbus district court had found and had been affirmed in finding racially discriminatory conduct and had ordered extensive busing. The Supreme Court held that the evidence adduced in both district courts showed that the school boards had carried out segregating actions affecting a substantial portion of each school system prior to and contemporaneously with the 1954 decision in Brown v. Board of Education. The Keyes presumption therefore required the school boards to show that systemwide discrimination had not existed, and they failed to do so. Because each system was a dual one in 1954, it was subject to an "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."1563 Following 1954, segregated schools continued to exist and the school boards had in fact taken actions which had the effect of increasing segregation. In the context of the on-going affirmative duty to desegregate, the foreseeable impact of the actions of the boards could be utilized to infer segregative intent, thus satisfying the Davis-Arlington Heights standards.1564 The Court further affirmed the district-wide remedies, holding that its earlier Dayton ruling had been premised upon the evidence of only a few isolated discriminatory practices; here, because systemwide impact had been found, systemwide remedies were appropriate.1565
Reaffirmation of the breadth of federal judicial remedial powers came when, in a second appeal of the Detroit case, the Court unanimously upheld the order of a district court mandating compensatory or remedial educational programs for school children who had been subjected to past acts of de jure segregation. So long as the remedy is related to the condition found to violate the Constitution, so long as it is remedial, and so long as it takes into account the interests of state and local authorities in managing their own affairs, federal courts have broad and flexible powers to remedy past wrongs.1566
1563 Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979) (quoting Green v. School Bd. of New Kent County, 391 U.S. 430, 437-38 (1968)). Contrast the Court's more recent decision in Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam), holding that adoption of "a wholly neutral admissions policy" for voluntary membership in state-sponsored 4-H Clubs was sufficient even though single race clubs continued to exist under that policy. There is no constitutional requirement that states in all circumstances pursue affirmative remedies to overcome past discrimination, the Court concluded; the voluntary nature of the clubs, unrestricted by state definition of attendance zones or other decisions affecting membership, presented a "wholly different milieu" from public schools. Id. at 408 (concurring opinion of Justice White, endorsed by the Court's per curiam opinion).
1564 443 U.S. at 461-65.
1565 443 U.S. at 465-67.
1566 Milliken v. Bradley, 433 U.S. 267 (1977). The Court also affirmed that part of the order directing the State of Michigan to pay one-half the costs of the mandated programs. Id. at 288-91.
The broad scope of federal courts' remedial powers was more recently reaffirmed in Missouri v. Jenkins.1567 There the Court ruled that a federal district court has the power to order local authorities to impose a tax increase in order to pay to remedy a constitutional violation, and if necessary may enjoin operation of state laws prohibiting such tax increases. However, the Court also held, the district court had abused its discretion by itself imposing an increase in property taxes without first affording local officials "the opportunity to devise their own solutions."1568
Efforts to Curb Busing and Other Desegregation Remedies.—Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure racial separation in the public schools, both North and South. Busing of school children created the greatest amount of controversy. Swann, of course, sanctioned an order requiring fairly extensive busing, as did the more recent Dayton and Columbus cases, but the earlier case cautioned as well that courts must observe limits occasioned by the nature of the educational process and the well-being of children,1569 and subsequent cases declared the principle that the remedy must be no more extensive than the violation found.1570 Congress has enacted several provisions of law, either permanent statutes or annual appropriations limits, that purport to restrict the power of federal courts and administrative agencies to order or to require busing, but these, either because of drafting infelicities or because of modifications required to obtain passage, have been largely ineffectual.1571 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none passed both Houses.1572
1567 495 U.S. 33 (1990).
1568 495 U.S. at 52. Similarly, the Court held in Spallone v. United States, 493 U.S. 265 (1990), that a district court had abused its discretion in imposing contempt sanctions directly on members of a city council for refusing to vote to implement a consent decree designed to remedy housing discrimination. Instead, the court should have proceeded first against the city alone, and should have proceeded against individual council members only if the sanctions against the city failed to produce compliance.
1571 E.g., § 407(a) of the Civil Rights Act of 1964, 78 Stat. 248, 42 U.S.C. § 2000c-6, construed to cover only de facto segregation in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 17-18 (1971); § 803 of the Education Amendments of 1972, 86 Stat. 372, 20 U.S.C. § 1653 (expired), interpreted in Drummond v. Acree, 409 U.S. 1228 (1972) (Justice Powell in Chambers), and the Equal Educational Opportunities and Transportation of Students Act of 1974, 88 Stat. 514 (1974), 20 U.S.C. §§ 1701-1757, see especially § 1714, interpreted in Morgan v. Kerrigan, 530 F.2d 401, 411-15 (1st Cir.), cert. denied, 426 U.S. 995 (1976), and United States v. Texas Education Agency, 532 F.2d 380, 394 n.18 (5th Cir.), vacated on other grounds sub nom., Austin Indep. School Dist. v. United States, 429 U.S. 990 (1976); and a series of annual appropriations riders, first passed as riders to the 1976 and 1977 Labor-HEW bills, § 108, 90 Stat. 1434 (1976), and § 101, 91 Stat. 1460, 42 U.S.C.§ 2000d, upheld against facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 1980).
1572 See, e.g., The 14th Amendment and School Busing: Hearings Before the Senate Judiciary Subcommittee on the Constitution, 97th Congress, 1st Sess. (1981); and School Desegregation: Hearings Before the House Judiciary Subcommittee on Civil and Constitutional Rights, 97th Congress, 1st Sess. (1981).
Of considerable importance to the possible validity of any substantial congressional restriction on judicial provision of remedies for de jure segregation violations are two decisions contrastingly dealing with referenda-approved restrictions on busing and other remedies in Washington State and California.1573 Voters in Washington, following a decision by the school board in Seattle to undertake a mandatory busing program, approved an initiative that prohibited school boards from assigning students to any but the nearest or next nearest school that offered the students' course of study; there were so many exceptions, however, that the prohibition in effect applied only to busing for racial purposes. In California the state courts had interpreted the state constitution to require school systems to eliminate both de jure and de facto segregation. The voters approved an initiative that prohibited state courts from ordering busing unless the segregation was in violation of the Fourteenth Amendment, and a federal judge would be empowered to order it under United States Supreme Court precedents.
By a narrow division, the Court held unconstitutional the Washington measure, and with near unanimity of result if not of reasoning it sustained the California measure. The constitutional flaw in the Washington measure, the Court held, was that it had chosen a racial classification—busing for desegregation—and imposed more severe burdens upon those seeking to obtain such a policy than it imposed with respect to any other policy. Local school boards could make education policy on anything but busing. By singling out busing and making it more difficult than anything else, the voters had expressly and knowingly enacted a law that had an intentional impact on a minority.1574 The Court discerned no such impediment in the California measure, a simple repeal of a remedy that had been within the government's discretion to provide. Moreover, the State continued under an obligation to alleviate de facto segregation by every other feasible means. The initiative had merely foreclosed one particular remedy—court-ordered mandatory busing—as inappropriate.1575
1573 Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). The decisions were in essence an application of Hunter v. Erickson, 393 U.S. 385 (1969).
1574 Washington v. Seattle School Dist., 458 U.S. 457, 470-82 (1982). Justice Blackmun wrote the opinion of the Court and was joined by Justices Brennan, White, Marshall, and Stevens. Dissenting were Justices Powell, Rehnquist, O'Connor, and Chief Justice Burger. Id. at 488. The dissent essentially argued that because the State was ultimately entirely responsible for all educational decisions, its choice to take back part of the power it had delegated did not raise the issues the majority thought it did.
Termination of Court Supervision.—With most school desegregation decrees having been entered decades ago, the issue arose as to what showing of compliance is necessary for a school district to free itself of continuing court supervision. The Court grappled with the issue, first in a case involving Oklahoma City public schools, then in a case involving the University of Mississippi college system. A desegregation decree may be lifted, the Court said in Oklahoma City Board of Education v. Dowell,1576 upon a showing that the purposes of the litigation have been "fully achieved,"—i.e., that the school district is being operated "in compliance with the commands of the Equal Protection Clause," that it has been so operated "for a reasonable period of time," and that it is "unlikely" that the school board would return to its former violations. On remand, the trial court was directed to determine "whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable."1577 In United States v. Fordice,1578 the Court determined that the State of Mississippi had not, by adopting and implementing race-neutral policies, eliminated all vestiges of its prior de jure, racially segregated, "dual" system of higher education. The State must also, to the extent practicable and consistent with sound educational practices, eradicate policies and practices that are traceable to the dual system and that continue to have segregative effects. The Court identified several surviving aspects of Mississippi's prior dual system which are constitutionally suspect, and which must be justified or eliminated. The State's admissions policy, requiring higher test scores for admission to the five historically white institutions than for admission to the three historically black institutions, is suspect because it originated as a means of preserving segregation. Also suspect are the widespread duplication of programs, a possible remnant of the dual "separate-but-equal" system; institutional mission classifications making three historically white schools the flagship "comprehensive" universities; and the retention and operation of all eight schools rather than the possible merger of some.72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92