Certiorari dismissed. Reported below: 572 F.2d 1010.
PER CURIAM.
The writs of certiorari are dismissed as improvidently
granted.
Page 444 U. S. 438
MR. JUSTICE. MARSHALL took no part in the consideration or
decision of these cases.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART and MR JUSTICE
REHNQUIST join, dissenting.
The Court today dismisses the writs previously granted in this
litigation, and thereby reinstates the ruling of the Court of
Appeals. The suit now will be returned to the District Court for
elaboration of that court's conclusions on the feasibility of
extensive busing to achieve racial balance in the Dallas public
schools. The Court of Appeals directed the trial court to
supplement the record with formal studies of the anticipated times
and distances of likely bus routes, and to make additional findings
on desegregation in the city's high schools.
Although the remand is narrow, aimed solely at the sufficiency
of the record on which the District Court based its desegregation
order, I do not think it is justified. After studying the schools
of the Dallas Independent School District through the many years of
this litigation, the trial judge drew on his familiarity with
Dallas and its schools, and on the advice of many community groups,
to fashion an effective and fair desegregation order. The Court of
Appeals failed to accord proper deference to the District Court's
conscientious execution of this delicate task.
In addition, this case presents a long-needed opportunity to
reexamine the considerations relevant to framing a remedy in a
desegregation suit. It is increasingly evident that use of the
busing remedy to achieve racial balance can conflict with the goals
of equal educational opportunity and quality schools. In all too
many cities, well intentioned court decrees have had the primary
effect of stimulating resegregation. The experience in Dallas
during this litigation presents a striking illustration of this
problem. If the District Court orders substantial additional
busing, as the Court of Appeals apparently
Page 444 U. S. 439
thinks it should, recent history suggests that the Dallas school
district will be well on the road to the "separate but equal"
conditions mistakenly approved in
Plessy v. Ferguson,
163 U. S. 537
(1896). Such an outcome is no less real or less regrettable when
caused by courts with benign motives. The promise of
Brown v.
Board of Education, 347 U. S. 483
(1954), cannot be fulfilled by continued imposition of
self-defeating remedies.
I
The Dallas Independent School District (School District) has
been in desegregation litigation since 1955, although the present
case is not part of the original suit. During this quarter of a
century, the School District has grown into the eighth largest
school district in the country, covering 351 square miles and
spanning 35 miles at its widest point. Since the present action
first was tried in 1971, the student population of the district has
changed dramatically. Total enrollment has dropped from 163,000 to
133,000, while the racial distribution of students has shifted from
69% Anglo in 1971 to 33.5% Anglo, 49.1% black, and 16.3%
Mexican-American in 1979. There were 112,000 Anglo students in the
School District in 1970; there are now fewer than 45,000.
This suit was brought by several parents, acting on behalf of
their children, against the superintendent and the Board of
Trustees of the School District (Board). Other parents groups have
intervened in the suit. [
Footnote
1] In the summer of 1971, the District Court found that
"elements" of a segregated school system "still remain" in the
Dallas schools.
Tasby v. Estes, 342 F.
Supp. 945, 947 (ND Tex.1971). The court imposed a number of
remedies, including the busing of approximately
Page 444 U. S. 440
15,000 students. The original plaintiffs appealed to the Court
of Appeals for the Fifth Circuit for more extensive reassignment
and transportation of pupils. That court declared that "nothing
less than the elimination of predominantly one-race schools is
constitutionally required. . . ."
Tasby v. Estes, 517 F.2d
92, 103,
cert. denied, 423 U.S. 939 (1975). Finding that
the District Court's decree failed to satisfy this standard, the
Court of Appeals remanded for the formulation of a new
desegregation plan.
In a month-long trial on remand, the District Court considered
in detail six plans submitted by the various parties and a
court-appointed expert. It heard nearly 50 witnesses, including
numerous experts, and produced a trial transcript of some 4,000
pages. The court also conferred with concerned community groups,
the most prominent of which was the Educational Task Force of the
Dallas Alliance (Alliance), a multiracial, nonpartisan
organization. [
Footnote 2] In a
thorough opinion,
Tasby v. Estes, 412 F.
Supp. 1192 (ND Tex.1976), the District Court found that the
decline in Anglo enrollment between 1971 and 1976 was not the
result of actions taken by the Board. In fact, the court noted the
Board's continuing "good faith" efforts to establish a unitary
school system.
Id. at 1207.
See Pasadena City Bd. of
Education v. Spangler, 427 U. S. 424,
427 U. S.
435-436 (1976). The court's duty, it asserted, was to
adopt a plan that would "realistically and effectively"
Page 444 U. S. 441
achieve desegregation in light of demographic changes in the
School District. 412 F. Supp. at 1207.
With careful attention to the special characteristics and
history of the School District, the District Court promulgated a
progressive and comprehensive plan that drew heavily on the
proposals of the Alliance. [
Footnote 3] For purposes of student assignment, the plan
divides the School District into six subdistricts. In integrated
areas within each subdistrict, present student assignments are
retained wherever possible. In other areas, children in grades K-3
remain in neighborhood schools; those in grades 8 are assigned to
central schools in each subdistrict; and high school students are
assigned to schools in their own subdistricts on the basis of
geographical attendance zones. The plan provides for a number of
"magnet high schools" that offer enriched educational programs.
[
Footnote 4] The pupil
assignment plan is supplemented by majority-to-minority transfers
upon request. [
Footnote 5]
This case now focuses on student assignment and busing.
[
Footnote 6]
Page 444 U. S. 442
Each of the six plans considered by the District Court provided
for substantial busing. [
Footnote
7] Although the court did not estimate the number of pupils to
be bused under its decree, the Alliance proposal which paralleled
the court's plan anticipated the busing of some 20,000 students.
The court concluded that the racial composition of the student
population in each subdistrict "will approximate the racial makeup
of the [district] as a whole, with the exception of [East] Oak
Cliff," a black neighborhood.
Id. at 1204.
Respondents argue that the District Court's plan leaves 62
schools, about one-third of the 176 schools in the district, with
"one-race" student bodies (defined as those where more than 75% of
the students are of one race). [
Footnote 8] Fifty-two of these schools would be
predominantly black, nine Anglo, and one Mexican-American. A
majority of these one-race schools result from the District Court's
refusal to bus very young children. [
Footnote 9] This Court has recognized that concern for the
health and welfare of younger children may dictate their exclusion
from student transportation plans,
see Swann v.
Charlotte-Mecklenburg Bd. of Education, 402 U. S.
1,
402 U. S. 31
(1971), and respondents do not dispute that feature of the District
Court order. In addition, several high schools have one-race
student bodies because the District Court declined to order the
busing of high school students. It noted that,
"of approximately 1,000 Anglos ordered to be transported to
formerly all-black high schools under this Court's 1971 student
assignment plan, fewer than 50 Anglo students attend those schools
today."
412 F. Supp. at 1205. The court
Page 444 U. S. 443
also concluded that the establishment of magnet high schools was
the "most realistic, feasible, and effective method for eliminating
the remaining vestiges of a dual [school] system on the 9-12 level.
. . ."
Ibid.
Viewed on a geographic basis, the order left 28 "predominantly
black" schools in East Oak Cliff, which is bounded by the Trinity
River bottom on one side and by Interstate 35 on the other. The
court found that the "practicalities of time and distance" prevent
the effective integration of the schools in this neighborhood
through busing.
Id. at 1204. In contrast, the Seagoville
subdistrict remains predominantly white. Seagoville, however, is
"geographically isolated" from the rest of the city,
Tasby v.
Estes, 572 F.2d 1010, 1013 (CA5 1978), and its school
population represents less than 2% of the School District's student
body.
The Court of Appeals was not impressed by the District Court's
carefully structured plan. It concentrated almost exclusively on
the "large number of one-race schools" remaining in Dallas.
Id. at 1012.
"We cannot properly review any student assignment plan that
leaves many schools in a system one race without specific findings
by the district court as to the feasibility of [student assignment]
techniques. . . . There are no adequate time-and-distance studies
in the record in this case. Consequently, we have no means of
determining whether the natural boundaries and traffic
considerations preclude either the pairing and clustering of
schools or the use of transportation to eliminate the large number
of one-race schools still existing."
Id. at 1014. The Court of Appeals remanded
"for the formulation of a new student assignment plan and for
findings to justify the maintenance of
any one-race
schools that may be part of that plan."
Id. at 1018 (emphasis added).
Page 444 U. S. 444
II
The duration and complexity of this litigation demonstrate the
difficulty of providing effective relief in a school desegregation
case. The school board and the court must consider many economic,
social, and educational factors, and those factors vary widely from
community to community. Courts frequently are caught between the
constitutional prohibition against segregation and the severe
limitations on their ability to implement an effective plan with
public support.
See Columbus Bd. of Education v. Penick,
443 U. S. 449,
443 U. S.
486-488 (1979) (POWELL, J., dissenting). Consequently,
this Court has been reluctant to give more than general
instructions for desegregation orders, and those instructions have
not always been completely consistent. [
Footnote 10] The result in too many instances has been
confusion in the lower courts.
See infra at
444 U. S.
449-450.
I believe that two rules provide the basic outline for
responsible exercise of the courts' equitable powers in school
desegregation cases. First, "the nature of the desegregation remedy
is to be determined by the nature and scope of the constitutional
violation."
Milliken v. Bradley, 433 U.
S. 267,
433 U. S. 280
(1977) (
Milliken II). The constitutional deprivation must
be identified accurately, and the remedy must be related closely to
that deprivation. Otherwise, a desegregation order may exceed both
the power and the competence of courts. Second, "[t]he measure of
any desegregation plan is its effectiveness."
Davis v. School
Comm'rs of Mobile County, 402 U. S. 33,
402 U. S. 37
(1971). A court must act decisively to remove purposeful
segregation, but it also must avoid the danger of inciting
resegregation by unduly disrupting the public schools.
Page 444 U. S. 445
Much of the confusion that has plagued this litigation derives
from neglect of these principles. The District Court failed to
identify the link between the constitutional violation and the
desegregation remedy, and the Court of Appeals showed little
concern for either that problem or the question of effectiveness.
Unless courts carefully consider those issues, judicial school
desegregation will continue to be a haphazard exercise of equitable
power that can, "like a loose cannon, . . . inflict indiscriminate
damage" on our schools and communities. [
Footnote 11]
A
The opinion of the Court of Appeals focuses almost entirely on
the one-race schools remaining in the School District. This
preoccupation apparently derives from the oft-repeated language in
Green v. County School Board, 391 U.
S. 430,
391 U. S. 442
(1968), that desegregation must create "a system without a
white' school [or] a `Negro' school." As I have noted before,
this language was suitable to the small rural county before the
Court in that case, where there were only two schools and 1,300
school children of both races scattered throughout the county. But
it makes no sense to apply that statement to the Dallas Independent
School District or any major metropolitan school district. In large
cities, the principal cause of segregation in the schools is
residential segregation, which results largely from demographic and
economic conditions over which school authorities have no control.
E. Pasadena City Bd. of Education v. Spangler, 427 U.S. at
427 U. S.
435-437; see Keyes v. School Dist. No. 1, Denver,
Colo., 413 U. S. 189,
413 U. S.
222-223 (1973) (POWELL, J., concurring in part and
dissenting in part). [Footnote
12] In cases since Green, the Court has stated
explicitly
Page 444 U. S. 446
that the existence of "predominantly white or predominantly
black [schools,] without more, . . . does not offend the
Constitution."
Dayton Bd. of Education v. Brinkman,
433 U. S. 406,
433 U. S. 417
(1977);
Milliken II, supra at
433 U. S. 280,
n. 14;
Swann v Charlotte-Mecklenburg Bd. of Education, 402
U.S. at
402 U. S. 26.
[
Footnote 13] It is puzzling
that many trial and appellate courts continue to misapply
Green and largely to ignore more recent statements on this
issue.
The important distinction is between "desegregated" schools and
"integrated" schools. There can be no legitimate claim that "racial
balance" in the public schools is constitutionally required.
Milliken v. Bradley, 418 U. S. 717,
418 U. S.
740-741 (1974) (
Milliken I). Rather, the
Constitution mandates that no school system be structured to
segregate the races. The proposition was stated fully in
Swann:
"Our objective in dealing with the issues presented by these
cases is to see that school authorities exclude no
Page 444 U. S. 447
pupil of a racial minority from any school, directly or
indirectly, on account of race; it does not and cannot embrace all
the problems of racial prejudice, even when those problems
contribute to disproportionate racial concentrations in some
schools."
402 U.S. at
402 U. S. 23.
The question in these cases, as in countless others, is how
equitably to remedy unconstitutional state action or inaction. A
desegregation decree
"must be designed as nearly as possible 'to restore the victims
of discriminatory conduct to the position they would have occupied
in the absence of such conduct.'"
Milliken II, 433 U.S. at
433 U. S. 280,
quoting
Milliken I, supra at
418 U. S. 746.
But the courts cannot pursue this goal responsibly without
identifying those features of the current situation that can be
attributed to the previous dual system. [
Footnote 14]
In this litigation, the District Court ordered the busing of
15,000 students in 1971, 342 F. Supp. at 956, while the current
decree is likely to result in the transportation of some 20,000
students.
See supra at
444 U. S. 442.
On the record before us, we cannot determine whether the trial
court made findings of constitutional violations that justified
these and other remedies
Page 444 U. S. 448
that were ordered. For the purpose of deciding the cases in this
Court, we may assume that such violations were duly found. In any
event, since the 1975 ruling of the District Court, this litigation
has concentrated solely on the need to eliminate one-race schools
through further busing. The petition for certiorari raised only
that issue,
see Pet. for Cert. in No. 78-253, pp. 2-3, and
both the Board, the principal petitioner here, and the Dallas
Alliance have asked only that the District Court's order be
reinstated.
See Brief for Petitioners in No. 78-253, pp.
71-72; Brief for Dallas Alliance as
Amicus Curiae 28.
Consequently, I believe this Court should reach the merits of the
remedial question and review the decision of the Court of Appeals
that the District Court must explain why "any" one-race schools
remain in Dallas. 572 F.2d at 1018.
B
Court orders to remedy constitutional deprivations in formerly
segregated school systems must be drawn "in light of the
circumstances present and the options available,"
Green v.
County School Board, 391 U.S. at
391 U. S. 439,
"taking into account the practicalities of the situation."
Davis v. School Comm'rs of Mobile County, 402 U.S. at
402 U. S. 37.
Although this Court's guidance in desegregation cases necessarily
has been general, its emphasis on effectiveness and practicalities
reflects an appreciation that perfect solutions may be unattainable
in the context of the demographic, geographic, and sociological
complexities of modern urban communities. The imperfect nature of
court action in school cases is evident in the phenomenon of
self-defeating "remedies," desegregation plans and continuing court
oversight so unacceptable that many parents seek to avoid the reach
of the court's decree. The impact of such remedies may be seen in
higher enrollment in private schools in further migration to the
suburbs, or in refusals to move into the school district.
This Court has not considered seriously the relationship between
the resegregation problem and desegregation decrees.
Page 444 U. S. 449
The most helpful precedent is
Pasadena City Bd. of Education
v. Spangler, which arose several years after a local
desegregation plan had been implemented. [
Footnote 15] We held in that case that the
Constitution does not require that a desegregation decree be
modified periodically as migration patterns shift the distribution
of the races within the school district. The Court recognized that,
absent further segregation by the State, there is no constitutional
obligation to remedy resegregation after an approved plan is
implemented. That holding accents the need for courts to consider
with care the impact a remedy is likely to have on resegregation.
As
Pasadena establishes, once resegregation occurs without
state action, courts have no power to impose an additional
remedy.
Surprisingly few courts, however, have understood this
imperative. One exception is the decision on remand in
Milliken
I, 418 U. S. 717
(1974), where a desegregation plan that left many one-race schools
was approved by the Court of Appeals for the Sixth Circuit. The
court explained that the available alternatives would have
"accelerate[d] the trend toward rendering all or nearly all of
Detroit's schools so identifiably black as to represent universal
school segregation. . . ."
Bradley v. Milliken, 540 F.2d
229, 239 (1976),
aff'd, Milliken II, supra. [
Footnote 16] In a case involving a
school district in Alabama,
Page 444 U. S. 450
however, the Court of Appeals for the Fifth Circuit approved a
plan
"'that will probably result in an all-black student body, where
nothing in the way of desegregation is accomplished and where
neither the white students nor black students are benefited.'"
Lee v. Macon County Bd. of Education, 465 F.2d 369, 370
(1972). Even though the court acknowledged that the remedy was
self-defeating, it ordered the plan implemented unless the local
school board could come forward with a plan "equally effective" in
eliminating one-race schools.
Ibid. [
Footnote 17]
The pursuit of racial balance at any cost -- the unintended
legacy of
Green -- is without constitutional or social
justification. Out of zeal to remedy one evil, courts may encourage
or set the stage for other evils. By acting against one-race
schools, courts may produce one-race school systems. Parents with
school-age children are highly motivated to seek access to schools
perceived to afford quality education. A desegregation plan without
community support, typically one with objectionable transportation
requirements and continuing judicial oversight, accelerates the
exodus to the suburbs of families able to move. The children of
families remaining in the area affected by the court's decree are
denied the opportunity to be part of an ethnically diverse student
body.
See Parents Assn.
Page 444 U. S. 451
of Andrew Jackson High School v. Ambach, 598 F.2d 705,
717 (CA2 1979). The general quality of the schools also tends to
decline when substantial elements of the community abandon
them.
The effects of resegregation can be even broader, reaching
beyond the quality of education in the inner city to the life of
the entire community. When the more economically advantaged
citizens leave the city, the tax base shrinks and all city services
suffer. And students whose parents elect to live beyond the reach
of the court decree lose the benefits of attending ethnically
diverse schools, an experience that prepares a child for
citizenship in our pluralistic society. [
Footnote 18]
III
The District Court in this litigation was properly concerned
over resegregation and community support for the Dallas schools.
[
Footnote 19] The facts
before the court made that concern unavoidable. In the five years
following the 1971 desegregation decree, the proportion of Anglo
students in the Dallas public schools had dropped by almost half.
That destabilizing
Page 444 U. S. 452
trend has continued in the School District, as reflected by the
following figures:
Year Percentage of Anglo Students
---- ----------------------------
1971 69%
1975 41.1%
1979 33.5% [
Footnote
20]
In view of these far-reaching demographic changes, the futility
of administering larger doses of a remedy that has failed is
self-evident. In this situation, I can see no justification for
reverting now to "time and distance studies" with the goal of
attaining increased racial balance through additional busing.
A desegregation remedy that does not take account of the social
and educational consequences of extensive student transportation
can be neither fair nor effective. The District Court's plan is
properly sensitive both to existing demographic realities and to
the likely consequences of increased busing. The Court of Appeals
seriously erred when it remanded this case with a mandate that
seems certain to accelerate the destructive trend toward
resegregation.
As this Court should not tolerate this error, even by silence
that might give rise to an inference of approval, I dissent from
the Court's failure to decide the case and reinstate the District
Court's plan -- a plan that does have promise for success.
* Together with No. 78-282,
Curry et al. v. Metropolitan
Branches of the Dallas NAACP et al.; and No. 78-283,
Brinegar et al. v. Metropolitan Branches of the Dallas NAACP et
al., also on certiorari to the same court.
[
Footnote 1]
The original plaintiffs, respondents here, represent a class of
black and Mexican-American students. The Curry petitioners
represent a group of North Dallas pupils, and the Brinegar
petitioners represent a class of persons living in an integrated
area of East Dallas.
[
Footnote 2]
The Task Force consisted of seven Mexican-Americans, seven
Anglos, six blacks, and one American Indian. The Dallas Alliance
comprises 77 cooperating organizations, including local branches of
the AFL-CIO and the Chamber of Commerce, religious groups, civic
organizations, and several local chapters of the NAACP. The
Alliance Task Force proposed a comprehensive desegregation plan
that largely was adopted by the District Court. Of course, a
group's participation in the Alliance need not signify approval of
the desegregation plan proposed by the Educational Task Force, but
the Alliance clearly has many ties to the entire Dallas
community.
[
Footnote 3]
In a brief
amicus curiae to the Court, the Alliance
stated that the plan submitted by its Educational Task Force
"reflects compromise" and was reached by consensus. Brief for
Dallas Alliance as
Amicus Curiae 21.
[
Footnote 4]
The District Court ordered the School District to establish
seven new magnet high schools by 1979. Each must offer special
career training, and the racial makeup of each school must be
within 10% of the racial distribution of the School District's high
school population.
Tasby v. Estes, 412 F.
Supp. 1192, 1215-1216 (ND Tex.1976). Free transportation is
available for students at magnet schools.
[
Footnote 5]
The Court of Appeals correctly determined that the District
Court's plan is deficient in not explicitly providing
transportation at public expense to children who exercise this
option.
Tasby v. Estes, 572 F.2d 1010, 1015 (CA5
1978).
[
Footnote 6]
The initial District Court ruling also dealt, apparently to the
satisfaction of the plaintiffs, with staff desegregation, school
construction, bilingual education for Mexican-Americans, and other
programs designed to supplement the opportunities of minority
students.
Tasby v. Estes, 342 F.
Supp. 945, 953 (ND Tex.1971). These matters are no longer
issues in this litigation.
[
Footnote 7]
The estimates of the number of students to be bused ranged from
14,000 under the plan originally proposed by the Board to 69,000
under the NAACP plaintiffs' Plan A.
[
Footnote 8]
Tr. of Oral Arg. 46.
[
Footnote 9]
In their brief to this Court, the NAACP respondents concede that
more than half of the one-race schools are in the elementary grade,
K-3 category. Brief for Respondents NAACP
et al. 9.
[
Footnote 10]
See Yudof, School Desegregation: Legal Realism,
Reasoned Elaboration, and Social Science Research in the Supreme
Court, 42 Law & Contemp.Prob. 57, 87-102 (Autumn 1978).
[
Footnote 11]
The language quoted comes from MR. JUSTICE STEWART's dissenting
opinion in
Stump v. Sparkman, 435 U.
S. 349,
435 U. S. 367
(1978).
[
Footnote 12]
See Coleman, New Incentives for Desegregation, 7 Human
Rights 10, 11 (Fall 1978); Farley, Residential Segregation and Its
Implications for School Integration, 39 Law & Contemp.Prob. 164
(Winter 1975).
[
Footnote 13]
Some federal courts continue to read
Swann v.
Charlotte-Mecklenburg Bd. of Education as requiring extensive
transportation because of its language endorsing the need "to
achieve the greatest possible degree of actual desegregation." 402
U.S. at
402 U. S. 26.
Swann, however, simply laid down a broad rule of reason
under which desegregation remedies must remain flexible and due
consideration must be given to other values and interests. In
Swann, we recognized that special difficulties arise when
extensive busing is used in metropolitan areas "with dense and
shifting population[s], numerous schools, [and] congested and
complex traffic patterns."
Id. at
402 U. S. 14.
Although
Swann approved pupil transportation as a remedial
device, the Court said that transportation orders would be suspect
"when the time or distance of travel is so great as to either risk
the health of the children or significantly impinge on the
educational process."
Id. at
402 U. S. 30-31.
The Court's more recent decisions have dispelled any doubt that may
have existed as to whether
Swann mandates busing to
establish racial balance. In this regard, one should note that the
Court of Appeals in this case failed to mention
Milliken v.
Bradley, 418 U. S. 717
(1974) (
Milliken I),
Dayton Bd. of Education v.
Brinkman, or
Milliken II, while it relied heavily,
and mistakenly, upon
Green. Tasby v. Estes, 517
F.2d 92, 103 (1975).
[
Footnote 14]
Last Term, the Court decided school desegregation cases from
Columbus and Dayton, Ohio.
Columbus Bd. of Education v.
Penick, 443 U. S. 449
(1979);
Dayton Bd. of Education v. Brinkman, 443 U.
S. 526 (1979) (
Dayton II). As the dissent by
MR. JUSTICE REHNQUIST argued, the opinions in those cases appeared
to depart from prior precedents of this Court. But instead of
criticizing either the reasoning or the holdings of any of those
cases, the Court simply avoided their force by accepting
uncritically the findings made by the courts below. In
Columbus, it emphasized that the District Court had found
"purposefully segregative practices with current, systemwide
impact." 443 U.S. at
443 U. S. 466,
citing
429 F.
Supp. 229, 252, 259-260, 264, 266 (SD Ohio 1977). Although the
District Court had made no such findings in
Dayton II, the
Court of Appeals for the Sixth Circuit tailored its own factual
findings to accord with those in
Columbus, and these again
were adopted by this Court. 443 U.S. at
443 U. S.
538-540.
In the instant case, neither the District Court nor the Court of
Appeals made comparable findings.
[
Footnote 15]
In
United State v. Scotland Neck Bd. of Education,
407 U. S. 484,
407 U. S. 491
(1972), we disapproved an attempt to create a small new school
district within a county conceded to have been operating a dual
school system. In a concluding sentence, the Court stated that,
while the possibility of resegregation
"may be cause for deep concern to the respondents, it cannot . .
. be accepted as a reason for achieving anything less than complete
uprooting of the dual public school system."
The Court concluded that the new school district would
"interfer[e] with the desegregation of the . . . [c]ounty [s]chool
system."
Id. at
407 U. S. 489.
Given the context of the Court's passing reference to
resegregation,
Scotland Neck affords no guidance for the
more usual desegregation case.
[
Footnote 16]
See Mapp v. Chattanooga Bd. of Education, 525 F.2d 169
(CA6 1975),
cert. denied, 427 U.S. 911 (1976). The
California Supreme Court has expressly authorized the consideration
of resegregation patterns in designing decrees for school
litigation under the State Constitution.
Crawford v. Los
Angeles Bd. of Education, 17 Cal. 3d
280, 308-309, 551 P.2d 28, 47 (1976).
[
Footnote 17]
The position taken by counsel for one group of respondents in
these cases is identical to that of the court in
Lee v. Macon
County Bd. of Education. At oral argument, counsel was asked
if he still would support the remand ordered by the Court of
Appeals if he were certain that additional busing
"would result in these black children next year or the year
afterwards . . . going to an all-black school because there
wouldn't be any whites or any people of any other color to go to
school with [in the District]."
Counsel replied that his clients' position would be no different
in that situation. Tr. of Oral Arg. 49.
[
Footnote 18]
As I noted in dissent in the
Columbus case, courts are
the branch of government least competent to provide long-range
solutions to the resegregation problem. Because the causes of
segregation in residential housing are usually beyond judicial
correction, wider solutions that will be acceptable to concerned
parents must be sought by legislators and executive officials.
See 443 U.S. at
443 U. S.
480-481 (POWELL, J., dissenting).
See also
Coleman,
supra, n
12, at 48-49; Willie, Racial Balance or Quality Education?, in
School Desegregation, Shadow and Substance 7 (Levinsohn &
Wright eds.1976).
[
Footnote 19]
The District Court appears to have succeeded in enlisting active
support from much of the Dallas community for the desegregation
plan. The voters have approved an $80 million school bond issue
that will assist in implementing the court's decree. In addition,
business and civic organizations have "adopted" 144 schools in a
community-wide effort to channel volunteers, equipment, and private
money to those schools, and to provide part-time and full-time job
opportunities for students in those schools.
See Brief for
Dallas Alliance as
Amicus Curiae 25.
[
Footnote 20]
The Anglo population in the School District is likely to fall
off even more, since current Anglo enrollment is highest in the
high schools and declines steadily through the lower grades.
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