On petition for writ of certiorari to the United States Court of
Appeals for the Sixth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr.
Justice POWELL join, dissenting.
Petitioners seek to present two questions for decision: (a)
whether the District Court properly found systemwide segregative
intent on the part of petitioner school Board, and, (b) "[w]hether
the systemwide student reassignment plan ordered by the District
Court, whereby every grade in every school must have a ratio of
black and white students in approximate proportion to the
systemwide ratio, exceeded the violation found, particularly where
the evidence showed that Cleveland's residential areas are highly
segregated by race." Pet. for Cert. 3. With respect to the first
issue of systemwide desegregation, the District Court found as
follows in its exhaustive opinion:
"[T]he local defendants offered
evidence to show that various actions complained of by the
plaintiffs were supported by valid, racially neutral, educationally
sound reasons. For instance, the defendants argued that they
created optional attendance zones to permit students to avoid heavy
traffic or other such safety hazards, or to address the problems of
overcrowding. Various school construction decisions were defended
as being responsive to sincere desires of local residents for
neighborhood facilities. The assignment of black teachers and
administrators to schools with majority black student enrollments
was defended on the ground that such faculty or staff would be
better able to relate to students of the same race. Where there was
factual support for the claim that such decisions had compelling
educational bases, or where legitimate safety concerns were being
met in a plausible and nonracial manner, the allegations of the
plaintiffs were set aside. However, there remain
Page 445 U.S.
935 , 936
more than 200 enumerated actions cited in the liability opinion
for which the explanations of the defendants either were not
credible or were not legally permissible. In these instances, the
Court finds that the defendants acted (1) not only with awareness
of the natural, probable, and foreseeable consequences of their
acts, (2) but also with the purpose and intent to maintain racial
segregation." Reed v. Rhodes,
455 F.
Supp. 546, 555 (N.D.Ohio 1978).
The Court of Appeals affirmed this conclusion of the District
Court in this language:
"Our review of this record supports the District Judge's
findings of fact in this regard and we find no fault in his
conclusions of law, as stated above. The findings of fact certainly
cannot be termed clearly erroneous, and the conclusions of law
which pertain to his 1973 findings and his 1964 findings are both
entirely consistent with the opinions of the Supreme Court in
Columbus Board of Education v. Penick [
439 U.S. 1348] ( 1979),
and Dayton Board of Education v. Brinkman [
439 U.S. 1357, 99 S. Ct.
27] (1979)." Reed v. Rhodes,
607 F.2d
714, 717 (C. A. [
Footnote
6] 1979).
The Court of Appeals, I think, was undoubtedly correct in
upholding this District Court's finding of systemwide segregative
intent on the basis of this Court's decisions last Term in the
Columbus and Dayton cases . I would therefore not vote to grant the
petition on this first issue.
The Court of Appeals, however, devoted virtually no attention to
the second issue-the propriety of the remedy imposed by the
District Court. In the Court of Appeals' opinion, which comprises
46 pages of the appendix to the petition, less than 4 are devoted
to the propriety of the remedy decreed, and none of those 4 pages
deal with whether the remedy was appropriate, conceding that a
systemwide remedy could be imposed. The court focused solely on the
legitimacy
Page 445 U.S.
935 , 937
of imposing a systemwide remedy, neglecting to address the
propriety of the terms imposed by that remedy. The Court of Appeals
extensively quoted language in this Court's opinion in Columbus,
supra, to support its approval of this remedy, but that language
simply has no application to the issue of whether as drastic a
remedy as this may be imposed once a systemwide violation has been
found.
In Milliken v. Bradley,
418 U.S.
717, 744, 3127, 41 L. Ed. 2d 1069 (1974), we held:
"The controlling principle
consistently expounded in our holdings is that the scope of the
remedy is determined by the nature and extent of the constitutional
violation. Swann [v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971)],
at 16."
This was not a novel principle then any more than it is now. It
simply reflects the traditional rule that the remedy imposed by a
United States district court exercising its equitable powers must
restore, as nearly as possible, the situation which would have
existed had the wrong not occurred. We have certainly never held
that racial balance is constitutionally required once a violation
is established. To the contrary, in Swann v. Charlotte-Mecklenburg
Board of Education,
402 U.S.
1, 24, 1280 (1971), this Court stated explicitly that, "[t]he
constitutional command to desegregate schools does not mean that
every school in every community must always reflect the racial
composition of the school system as a whole."
The District Court then either ignored the statement in Swann or
formulated this remedy on the hypothesis that had there been no
segregative conduct on the part of the Cleveland School Board,
there would have been no racially segregated housing patterns in
the city of Cleveland . For the reasons persuasively stated by Mr.
Justice POWELL in his opinion dissenting from the dismissal of the
writ of certiorari in Estes v. Metropolitan Branch, Dallas NAACP,
444 U.S. 437
(1980), this is simply not a realistic hypothesis. Conceding that
there was a systemwide violation, and allowing for
Page 445 U.S.
935 , 938
the discretion and flexibility necessary for the District Court
to fashion an equitable decree which would requite the
constitutional wrong, that discretion did not extend to
restructuring the entire demography of the city of Cleveland as
reflected in its schools, unless that demography was attributable
to the conduct of the petitioner school Board. While the District
Court found that some of the racial housing patterns were
attributable to the conduct of the Board, it also made clear that
other factors, including the location of public housing by entities
other than the Board, also had a causative effect. Even if the
Constitution required it, and it were possible for federal courts
to do it, no equitable decree can fashion an "Emerald City" where
all races, ethnic groups, and persons of various income levels live
side by side in a large metropolitan area. Because the decree of
the District Court here seems flatly contrary to the language of
Swann, supra, and Milliken, supra, I would grant the petition for
certiorari limited to the second question.
Opinion on remand by Court of Appeals, to District Court,
500 F.
Supp. 404.
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