Mr. Justice REHNQUIST, with whom Mr. Justice STEWART and Mr.
Justice POWELL join, dissenting.
The three-judge District Court which initially found a
desegregation remedy to be warranted, expressly found that 10 of
the 11 county school districts had established fully unitary school
systems after this Court's decision in Brown v. Board of Education,
347 U.S. 483
(1954). Evans v. Buchanan,
393 F.
Supp. 428, 437, and n. 19 (D.C. Del.), summarily-
Page 446 U.S.
923 , 924
aff'd,
423 U.S.
963 (1975). Only the school district in the city of Wilmington
was found to have engaged in discriminatory conduct-conduct which
the court did not find to be purposeful.* The court did find,
however, that the acts of other governmental entities resulted in
an interdistrict violation. I think this Court should grant
certiorari to review the District Court's imposition of this
remedy, even accepting as settled the finding that there was an
interdistrict violation warranting an interdistrict remedy.
One principle that has been continually emphasized in the
desegregation opinions of this Court is that the "scope of the
remedy" formulated by a district court must be tailored to fit "the
nature and extent of the constitutional violation." Swann v.
Charlotte-Mecklenburg Board of Education,
402 U.S.
1, 16, 1276 ( 1971). In order to effectively fulfill this
mandate, we have made clear that district courts must "determine
how much incremental segregative effect [the constitutional]
violations had on the racial distribution of the . . . school
population as . . . compared to what it would have been in the
absence of such constitutional violations." Dayton Board of
Education v. Brinkman,
433 U.S.
406, 420, 2775 (1977). Without such a finding, it would not be
possible for a judge to fulfill the equitable limitations commanded
by Swann.
In this case, however, the courts have ignored Swann and-
Page 446 U.S.
923 , 925
Dayton, and held that as a matter of law, no such findings were
required. The District Court explicitly acknowledged that it did
not apply this standard in adopting the remedy in issue. The court
stated that it was " fully cognizant" that the submitted plans
"were formulated without exacting consideration of whether they
returned the Northern New Castle County schools to the precise
position they would have assumed 'but for' the found constitutional
violations."
447 F.
Supp. 982, 1009 (Del.1978). The Court of Appeals on review
again conceded that the District Court did not make the inquiry
identified by Dayton but nevertheless found this omission excusable
because Wilmington had previously been subject to de jure
segregation.
This Court has never held that a remedy dismantling local
education or devising a scheme of total racial balance is warranted
simply upon a finding of de jure segregation, and in fact, Swann
held precisely to the contrary. Whatever the nature of the
constitutional violation, the standard articulated in Dayton, as
well as in the predecessors to Dayton, requires the District Court
to impose changes in local education only to the extent necessary
to cure the violation. The Court of Appeals' express departure from
the precedents of this Court certainly warrants review.
Our cases indicate that the need for specific findings is
particularly compelling when the district court seeks to impose a
remedy curtailing local control of education. The District Court
here has chosen such a remedy, actually abolishing the county's
system of education and disenfranchising the voters who formerly
retained popular control of education. This has been mandated even
though no court has found that these local school boards have
engaged in any purposeful discrimination since 1954. While on my
assumption the absence of purpose does not negate the need for an
interdistrict remedy in this case, the conduct of the boards is
still relevant to the formulation of that interdistrict remedy.
When the "nature of the violation" does not include purposeful
discrimination on-
Page 446 U.S.
923 , 926
the part of the school boards, I am not convinced that a truly
"equitable" remedy would abolish those governmental entities that
had not been found to purposefully participate in the perpetration
of the violations. I had thought that Milliken v. Bradley,
418 U.S. 717 (1974),
would forcefully preclude district courts from imposing such a
remedy without the most exhaustive comparison of the nature of the
violation and the need for this form of disestablishment of local
government.
In Milliken, this Court declined to permit the federal courts to
impose a remedy of this nature without the most exacting showing of
necessity. The Court emphasized that "local control over the
educational process affords citizens an opportunity to participate
in decisionmaking, permits the structuring of school programs to
fit local needs, and encourages 'experimentation, innovation, and a
healthy competition for educational excellence.' " Id., at 742. The
Court not only emphasized these important benefits of local
control, but also recognized the inability of courts and judges to
assume that role, noting that "[t]his is a task which few, if any,
judges are qualified to perform . . . ." Id., at 744. In Dayton,
this Court reiterated that "local autonomy of school districts is a
vital national tradition." 433 U.S., at 410. It was because of
these considerations that Dayton insisted that "the case for
displacement of the local authorities by a federal court in a
school desegregation case must be satisfactorily established by
factual proof and justified by a reasoned statement of legal
principles." Ibid. Yet the District Court has here treated a series
of independent school districts much as if they were a " railroad
in reorganization," without any attempt to comply with the
requirements of Milliken and Dayton. Alexis I. du Pont School Dist.
v. Evans,
439 U.S.
1375, 1379, 34 (1978) ( REHNQUIST, J., in chambers). If we have
any remaining commitment to this " vital national tradition," I
think this Court should be certain, before it allows the
dismantling of not 1, but 11 independent school boards, that the
violations-
Page 446 U.S.
923 , 927
found warrant this total substitution of judicial for popular
control of local education.
Thus I think the principal reason this case merits review is
because there is substantial doubt that the abolition of these 11
school districts is an appropriate equitable remedy for the
interdistrict violation found by the courts. In addition, I think
the failure to apply Dayton may also have resulted in a pupil
reassignment far more comprehensive and disruptive than that which
the established violations warranted. My reading of the District
Court opinion indicates that the court devised a remedy creating
complete racial balance in every grade of every school throughout
the county despite the existence of substantial residential
segregation. This is a clear violation of the ruling in Swann. For
the reasons expressed in my opinion dissenting from the denial of
certiorari in Cleveland Bd. of Ed. v. Reed,
445 U.S. 935 (1980), and
by Mr. Justice POWELL in his opinion dissenting from the dismissal
of certiorari in Estes v. Metropolitan Branch, Dallas NAACP, 444
U.S. 937 (1980), I do not believe that such an assumption should go
unreviewed by this Court. As in those cases, there is substantial
record evidence here indicating that the classroom makeup achieved
by the order would not exist "but for" the supposed constitutional
violations. The District Court found that while 43.6% of the city
of Wilmington's residents are black, only 4.5% of the county
suburban residents are black. Specifically, the court found that
since 1950 there had been extensive "white flight" from the city to
the suburbs and that "the result of these demographic changes is
that the black population of the County is heavily concentrated
within the City of Wilmington." 393 F.Supp., at 432-433. The court
concluded that "the residential demographic change of the past two
decades has had a striking effect on the school attendance patterns
in the County." Id., at 433. The court did not find that these
residential patterns were attributable solely (or even-
Page 446 U.S.
923 , 928
principally) to governmental discrimination. Therefore to devise
a remedy on the assumption that absent the constitutional
violations there would be precise racial parity in the county
neighborhoods is impermissible under any traditional notion of an
equitable remedy to restore the situation as it would have existed
prior to the assumed wrong.
This Court does a disservice to local government and the people
of Delaware, and very likely in the long run to the Equal
Protection Clause of the Fourteenth Amendment, by once again
declining to review a case of such fundamental importance.
THE CHIEF JUSTICE agrees these cases merit review here but only
when a full Court is available to consider the important issues
presented by the petitions for certiorari.
Mr. Justice STEVENS took no part in the consideration or
decision of these petitions.
Footnotes
[
Footnote *] The three-judge court
identified the Wilmington school board's adoption of voluntary
attendance zones, which "although possibly designed to minimize the
flight of white families with school-aged children" to the suburbs,
as possibly having the opposite effect. 393 F.Supp., at 435. Thus
the court specifically recognized that the policy in question may
well not have been purposefully discriminatory, even though it may
have had a discriminatory effect. Even the discriminatory effect,
however, was only speculative since the District Court only found
that "to some extent , . . . discriminatory school policies in
Wilmington may have affected the relative racial balance. . . . "
Id., at 436 (emphasis added). I am prepared to assume, arguendo,
that this Court's summary affirmance settles the question of an
interdistrict violation, however, and would review only the
imposition of the remedy.
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