OCTOBER TERM, 1991
Syllabus
FREEMAN ET AL.
v. PITTS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 89-1290. Argued October 7, 1991-Decided March 31, 1992
In a class action filed by respondents, black schoolchildren and
their parents, the District Court, in 1969, entered a consent order
approving a plan to dismantle the
de jure segregation that
had existed in the DeKalb County, Georgia, School System (DCSS).
The court retained jurisdiction to oversee implementation of the
plan. In 1986, petitioner DCSS officials filed a motion for final
dismissal of the litigation, seeking a declaration that DCSS had
achieved unitary status. Among other things, the court found that
DCSS "has travelled the ... road to unitary status almost to its
end," noted that it had "continually been impressed by [DCSS']
successes ... and its dedication to providing a quality education
for all," and ruled that DCSS is a unitary system with regard to
four of the six factors identified in
Green v.
School Ed.
of New Kent County, 391 U. S. 430: student
assignments, transportation, physical facilities, and
extracurricular activities. In particular, the court found with
respect to student assignments that DCSS had briefly achieved
unitary status under the court-ordered plan, that subsequent and
continuing racial imbalance in this category was a product of
independent demographic changes that were unrelated to petitioners'
actions and were not a vestige of the prior
de jure system,
and that actions taken by DCSS had achieved maximum practical
desegregation from 1969 to 1986. Although ruling that it would
order no further relief in the foregoing areas, the court refused
to dismiss the case because it found that DCSS was not unitary with
respect to the remaining
Green factors: faculty assignments
and resource allocation, the latter of which the court considered
in connection with a
non-Green factor, the quality of
education being offered to the white and black student populations.
The court ordered DCSS to take measures to address the remaining
problems. The Court of Appeals reversed, holding,
inter
alia, that a district court should retain full remedial
authority over a school system until it achieves unitary status in
all
Green categories at the same time for several years;
that because, under this test, DCSS had never achieved unitary
status, it could not shirk its constitutional duties by pointing to
demographic shifts occurring prior to unitary status; and that DCSS
would have to take further actions to correct the racial imbalance,
even though such actions might be "administratively awkward,
468
Syllabus
inconvenient, and even bizarre in some situations,"
Swann
v.
CharlotteMecklenburg Bd. of Education, 402 U. S. 1,28.
Held:
1. In the course of supervising a desegregation plan, a district
court has the authority to relinquish supervision and control of a
school district in incremental stages, before full compliance has
been achieved in every area of school operations, and may, while
retaining jurisdiction over the case, determine that it will not
order further remedies in areas where the school district is in
compliance with the decree. Pp. 485-492.
(a)
Green held that the duty of a former
de jure
district is to take all necessary steps to convert to a unitary
system in which racial discrimination is eliminated, set forth
factors that measure unitariness, and instructed the district
courts to fashion remedies that address all these factors. Although
the unitariness concept is helpful in defining the scope of the
district court's authority, the term "unitary" does not have a
fixed meaning or content and does not confine the court's
discretion in a way that departs from traditional equitable
principles. Under such principles, a court has the inherent
capacity to adjust remedies in a feasible and practical way to
correct the constitutional violation,
Swann, supra, at
15-16, with the end purpose of restoring state and local
authorities to the control of a school system that is operating in
compliance, see,
e. g., Milliken v.
Bradley, 433 U. S. 267, 280-281.
Where justified by the facts of the case, incremental or partial
withdrawal of judicial supervision and control in areas of
compliance, and retention of jurisdiction over the case with
continuing supervision in areas of noncompliance, provides an
orderly means for fulfilling this purpose. In particular, the court
may determine that it will not order further remedies in the area
of student assignments where racial imbalance is not traceable, in
a proximate way, to constitutional violations. See
Pasadena Bd.
of Education v.
Spangler, 427 U. S. 424, 436. pp.
485-491.
(b) Among the factors which must inform the court's discretion
to order the incremental withdrawal of its supervision in an
equitable manner are the following: whether there has been full and
satisfactory compliance with the decree in those aspects of the
system where supervision is to be withdrawn; whether retention of
control is necessary or practicable to achieve compliance in other
areas; and whether the school district has demonstrated, to the
public and to the parents and students of the once disfavored race,
its good-faith commitment to the whole of the decree and to those
statutory and constitutional provisions that were the predicate for
judicial intervention in the first instance. In considering these
factors a court should give particular attention to the school
system's record of compliance; i.
e., whether its policies
form a consistent
469
pattern of lawful conduct directed to eliminating earlier
violations. And with the passage of time the degree to which racial
imbalances continue to represent vestiges of a constitutional
violation may diminish, and the practicability and efficacy of
various remedies can be evaluated with more precision.
pp.491-492.
2. The Court of Appeals erred in holding that, as a matter of
law, the District Court had no discretion to permit DCSS to regain
control over student assignments and three other
Green
factors, while retaining supervision over faculty assignments and
the quality of education. Pp. 492-500.
(a) The District Court exercised its discretion appropriately in
addressing the
Green elements, inquiring into quality of
education, and determining whether minority students were being
disadvantaged in ways that required the formulation of new and
further remedies in areas of noncompliance. This approach
illustrates that the
Green factors need not be a rigid
framework and demonstrates the proper use of equitable discretion.
By withdrawing control over areas where judicial supervision is no
longer needed, a district court can concentrate its own and the
school district's resources on the areas where the effects of
de
jure discrimination have not been eliminated and further action
is necessary. Pp. 492-493.
(b) The related premises underlying the Court of Appeals'
rejection of the District Court's order-first, that given
noncompliance in some discrete categories, there can be no partial
withdrawal of judicial control; and second, until there is full
compliance,
Swann, supra, requires that heroic measures be
taken to ensure racial balance in student assignments system
wide-are incorrect under this Court's analysis and precedents.
Racial balance is not to be achieved for its own sake, but is to be
pursued only when there is a causal link between an imbalance and
the constitutional violation. Once racial imbalance traceable to
the constitutional violation has been remedied, a school district
is under no duty to remedy an imbalance that is caused by
demographic factors.
Id., at 31-32. The decree here
accomplished its objective of desegregation in student assignments
in the first year of its operation, and the District Court's
finding that the subsequent resegregation is attributable to
independent demographic forces is credible. A proper rule must be
based on the necessity to find a feasible remedy that ensures
systemwide compliance with the decree and that is directed to
curing the effect of the specific violation. Pp. 493-497.
(c) Resolution of the question whether retention of judicial
control over student attendance is necessary or practicable to
achieve compliance in other facets of DCSS must await further
proceedings on remand. The District Court did not have this Court's
analysis before it when
470
Syllabus
it addressed the faculty assignment problem, and specific
findings and conclusions should be made on whether student
reassignments would be a proper way to remedy the defect. Moreover,
the District Court's praise for DCSS' successes, dedication, and
progress, and its failure to find that DCSS had acted in bad faith
or engaged in postdecree acts of discrimination with respect to
those areas where compliance had not been achieved, may not be the
equivalent of the necessary finding that DCSS has an affirmative
commitment to comply in good faith with the entirety of the
desegregation plan. Pp. 497-500.
887 F.2d
1438, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, SCALIA, and SOUTER, JJ., joined.
SCALIA, J.,
post, p. 500, and SOUTER, J.,
post, p.
507, filed concurring opinions. BLACKMUN, J., filed an opinion
concurring in the judgment, in which STEVENS and O'CONNOR, JJ.,
joined,
post, p. 509. THOMAS, J., took no part in the
consideration or decision of the case.
Rex E. Lee argued the cause for petitioners. With him on the
briefs were Carter G. Phillips, Mark D. Hopson, Gary M. Sams,
Charles L. Weatherly, and
J. Stanley Hawkins.
Solicitor General Starr argued the cause for the United States
as amicus curiae in support of petitioners. With him on the brief
were Assistant Attorney General Dunne, Deputy Solicitor General
Roberts, Deputy Assistant Attorney General Clegg, Ronald J. Mann,
David K. Flynn, and Lisa
Christopher A. Hansen argued the cause for
respondents.
With him on the brief were Steven R. Shapiro, Helen Hershkoff,
John A. Powell, and Willie Abrams.*
*Briefs of
amici curiae urging reversal were filed for
the Intervenors in
Carlin v.
Board of Education San Diego
Unified School District by
Elmer Enstrom, Jr.; and for
the Southeastern Legal Foundation, Inc., by
Briefs of
amici curiae urging affirmance were filed for
the Lawyers' Committee for Civil Rights Under Law by
Norman
Redlich and
Burke Marshall; and for the NAACP, DeKalb
County, Georgia, Branch et al. by
William H. Allen and
Elliott Schulder.
Charles S.
Johnson III filed a brief for
plaintiff-intervenors as
amici curiae.
471
JUSTICE KENNEDY delivered the opinion of the Court. DeKalb
County, Georgia, is a major suburban area of Atlanta. This case
involves a court-ordered desegregation decree for the DeKalb County
School System (DCSS). DCSS now serves some 73,000 students in
kindergarten through high school and is the 32d largest elementary
and secondary school system in the Nation.
DCSS has been subject to the supervision and jurisdiction of the
United States District Court for the Northern District of Georgia
since 1969, when it was ordered to dismantle its dual school
system. In 1986, petitioners filed a motion for final dismissal.
The District Court ruled that DCSS had not achieved unitary status
in all respects but had done so in student attendance and three
other categories. In its order the District Court relinquished
remedial control as to those aspects of the system in which unitary
status had been achieved, and retained supervisory authority only
for those aspects of the school system in which the district was
not in full compliance. The Court of Appeals for the Eleventh
Circuit reversed,
887 F.2d
1438 (1989), holding that a district court should retain full
remedial authority over a school system until it achieves unitary
status in six categories at the same time for several years. We now
reverse the judgment of the Court of Appeals and remand, holding
that a district court is permitted to withdraw judicial supervision
with respect to discrete categories in which the school district
has achieved compliance with a court-ordered desegregation plan. A
district court need not retain active control over every aspect of
school administration until a school district has demonstrated
unitary status in all facets of its system.
I A
For decades before our decision in
Brown v.
Board of
Education, 347 U.
S. 483 (1954)
(Brown 1), and our mandate in
472
Brown v.
Board of Education, 349 U. S. 294, 301 (1955)
(Brown II), which ordered school districts to desegregate
with "all deliberate speed," DCSS was segregated by law. DCSS'
initial response to the mandate of
Brown II was an all too
familiar one. Interpreting "all deliberate speed" as giving
latitude to delay steps to desegregate, DCSS took no positive
action toward desegregation until the 1966-1967 school year, when
it did nothing more than adopt a freedom of choice transfer plan.
Some black students chose to attend former
de jure white
schools, but the plan had no significant effect on the former
de
jure black schools.
In 1968, we decided
Green v.
School Bd. of New Kent
County, 391 U. S.
430. We held that adoption of a freedom of choice plan does
not, by itself, satisfy a school district's mandatory
responsibility to eliminate all vestiges of a dual system.
Green was a turning point in our law in a further respect.
Concerned by more than a decade of inaction, we stated that" '[t]he
time for mere "deliberate speed" has run out.'''
Id., at
438, quoting
Griffin v.
Prince Edward County School
Bd., 377 U. S.
218, 234 (1964). We said that the obligation of school
districts once segregated by law was to come forward with a plan
that "promises realistically to work, and promises realistically to
work
now." 391 U. S., at 439 (emphasis in original). The
case before us requires an understanding and assessment of how DCSS
responded to the directives set forth in
Green.
Within two months of our ruling in
Green, respondents,
who are black schoolchildren and their parents, instituted this
class action in the United States District Court for the Northern
District of Georgia. After the suit was filed, DCSS voluntarily
began working with the Department of Health, Education, and Welfare
to devise a comprehensive and final plan of desegregation. The
District Court, in June 1969, entered a consent order approving the
proposed plan, which was to be implemented in the 1969-1970 school
year. The order abolished the freedom of choice plan and
adopted
473
a neighborhood school attendance plan that had been proposed by
DCSS and accepted by the Department of Health, Education, and
Welfare subject to a minor modification. Under the plan all of the
former
de jure black schools were closed, and their students
were reassigned among the remaining neighborhood schools. The
District Court retained jurisdiction.
Between 1969 and 1986, respondents sought only infrequent and
limited judicial intervention into the affairs of DCSS. They did
not request significant changes in student attendance zones or
student assignment policies. In 1976, DCSS was ordered to expand
its Majority-to-Minority (M-to-M) student transfer program,
allowing students in a school where they are in the majority race
to transfer to a school where they are in the minority; to
establish a biracial committee to oversee the transfer program and
future boundary line changes; and to reassign teachers so that the
ratio of black to white teachers in each school would be, in
substance, similar to the racial balance in the school population
systemwide. From 1977 to 1979, the District Court approved a
boundary line change for one elementary school attendance zone and
rejected DCSS proposals to restrict the M-to-M transfer program. In
1983, DCSS was ordered to make further adjustments to the M-to-M
transfer program.
In 1986, petitioners filed a motion for final dismissal of the
litigation. They sought a declaration that DCSS had satisfied its
duty to eliminate the dual education system, that is to say a
declaration that the school system had achieved unitary status.
Green, supra, at 441. The District Court approached the
question whether DCSS had achieved unitary status by asking whether
DCSS was unitary with respect to each of the factors identified in
Green. The court considered an additional factor that is not
named in
Green: the quality of education being offered to
the white and black student populations.
474
The District Court found DCSS to be "an innovative school system
that has travelled the often long road to unitary status almost to
its end," noting that "the court has continually been impressed by
the successes of the DCSS and its dedication to providing a quality
education for all students within that system." App. to Pet. for
Cert. 71a. It found that DCSS is a unitary system with regard to
student assignments, transportation, physical facilities, and
extracurricular activities, and ruled that it would order no
further relief in those areas. The District Court stopped short of
dismissing the case, however, because it found that DCSS was not
unitary in every respect. The court said that vestiges of the dual
system remain in the areas of teacher and principal assignments,
resource allocation, and quality of education. DCSS was ordered to
take measures to address the remaining problems.
B
Proper resolution of any desegregation case turns on a careful
assessment of its facts.
Green, supra, at 439. Here, as in
most cases where the issue is the degree of compliance with a
school desegregation decree, a critical beginning point is the
degree of racial imbalance in the school district, that is to say a
comparison of the proportion of majority to minority students in
individual schools with the proportions of the races in the
district as a whole. This inquiry is fundamental, for under the
former
de jure regimes racial exclusion was both the means
and the end of a policy motivated by disparagement of, or hostility
towards, the disfavored race. In accord with this principle, the
District Court began its analysis with an assessment of the current
racial mix in the schools throughout DCSS and the explanation for
the racial imbalance it found. Respondents did not contend on
appeal that the findings of fact were clearly erroneous, and the
Court of Appeals did not find them to be erroneous. The Court of
Appeals did disagree with the conclusion reached
475
by the District Court respecting the need for further
supervision of racial balance in student assignments.
In the extensive record that comprises this case, one fact
predominates: Remarkable changes in the racial composition of the
county presented DCSS and the District Court with a student
population in 1986 far different from the one they set out to
integrate in 1969. Between 1950 and 1985, DeKalb County grew from
70,000 to 450,000 in total population, but most of the gross
increase in student enrollment had occurred by 1969, the relevant
starting date for our purposes. Although the public school
population experienced only modest changes between 1969 and 1986
(remaining in the low 70,000's), a striking change occurred in the
racial proportions of the student population. The school system
that the District Court ordered desegregated in 1969 had 5.6% black
students; by 1986 the percentage of black students was 47%.
To compound the difficulty of working with these radical
demographic changes, the northern and southern parts of the county
experienced much different growth patterns. The District Court
found that "[a]s the result of these demographic shifts, the
population of the northern half of DeKalb County is now
predominantly white and the southern half of DeKalb County is
predominantly black." App. to Pet. for Cert. 38a. In 1970, there
were 7,615 nonwhites living in the northern part of DeKalb County
and 11,508 nonwhites in the southern part of the county. By 1980,
there were 15,365 nonwhites living in the northern part of the
county, and 87,583 nonwhites in the southern part. Most of the
growth in the nonwhite population in the southern portion of the
county was due to the migration of black persons from the city of
Atlanta. Between 1975 and 1980 alone, approximately 64,000 black
citizens moved into southern DeKalb County, most of them coming
from Atlanta. During the same period, approximately 37,000 white
citizens moved out of southern DeKalb County to the surrounding
counties.
476
The District Court made findings with respect to the number of
nonwhite citizens in the northern and southern parts of the county
for the years 1970 and 1980 without making parallel findings with
respect to white citizens. Yet a clear picture does emerge. During
the relevant period, the black population in the southern portion
of the county experienced tremendous growth while the white
population did not, and the white population in the northern part
of the county experienced tremendous growth while the black
population did not.
The demographic changes that occurred during the course of the
desegregation order are an essential foundation for the District
Court's analysis of the current racial mix of DCSS. As the District
Court observed, the demographic shifts have had "an immense effect
on the racial compositions of the DeKalb County schools."
Ibid. From 1976 to 1986, enrollment in elementary schools
declined overall by 15%, while black enrollment in elementary
schools increased by 86%. During the same period, overall high
school enrollment declined by 16%, while black enrollment in high
schools increased by 119%. These effects were even more pronounced
in the southern portion of DeKalb County.
Concerned with racial imbalance in the various schools of the
district, respondents presented evidence that during the 1986-1987
school year DCSS had the following features: (1) 47% of the
students attending DCSS were black; (2) 50% of the black students
attended schools that were over 90% black; (3) 62% of all black
students attended schools that had more than 20% more blacks than
the system-wide average; (4) 27% of white students attended schools
that were more than 90% white; (5) 59% of the white students
attended schools that had more than 20% more whites than the
system-wide average; (6) of the 22 DCSS high schools, five had
student populations that were more than 90% black, while five other
schools had student populations that were more than 80% white; and
(7) of the 74 elementary schools
477
in DCSS, 18 are over 90% black, while 10 are over 90% white.
Id., at 31a. (Respondents' evidence on these points treated
all nonblack students as white. The District Court noted that there
was no evidence that nonblack minority students constituted even 1%
of DCSS student population.)
Respondents argued in the District Court that this racial
imbalance in student assignment was a vestige of the dual system,
rather than a product of independent demographic forces. In
addition to the statistical evidence that the ratio of black
students to white students in individual schools varied to a
significant degree from the system-wide average, respondents
contended that DCSS had not used all available desegregative tools
in order to achieve racial balancing. Respondents pointed to the
following alleged shortcomings in DCSS' de segregative efforts: (1)
DCSS did not break the county into subdistricts and racially
balance each subdistrict; (2) DCSS failed to expend sufficient
funds for minority learning opportunities; (3) DCSS did not
establish community advisory organizations; (4) DCSS did not make
full use of the freedom of choice plan; (5) DCSS did not cluster
schools, that is, it did not create schools for separate grade
levels which could be used to establish a feeder pattern; (6) DCSS
did not institute its magnet school program as early as it might
have; and (7) DCSS did not use busing to facilitate urban to
suburban exchanges.
According to the District Court, respondents conceded that the
1969 order assigning all students to their neighborhood schools
"effectively desegregated the DCSS for a period of time" with
respect to student assignment.
Id., at 35a. The District
Court noted, however, that despite this concession respondents
contended there was an improper imbalance in two schools even in
1969. Respondents made much of the fact that despite the small
percentage of blacks in the county in 1969, there were then two
schools that contained a majority of black students: Terry Mill
Elementary School
478
was 76% black, and Stoneview Elementary School was 51%
black.
The District Court found the racial imbalance in these schools
was not a vestige of the prior
de jure system. It observed
that both the Terry Mill and Stoneview schools were
de jure
white schools before the freedom of choice plan was put in place.
It cited expert witness testimony that Terry Mill had become a
majority black school as a result of demographic shifts unrelated
to the actions of petitioners or their predecessors. In 1966, the
overwhelming majority of students at Terry Mill were white. By
1967, due to migration of black citizens from Atlanta into DeKalb
County-and into the neighborhood surrounding the Terry Mill school
in particular-23% of the students at Terry Mill were black. By
1968, black students constituted 50% of the school population at
Terry Mill. By 1969, when the plan was put into effect, the
percentage of black students had grown to 76. In accordance with
the evidence of demographic shifts, and in the absence of any
evidence to suggest that the former dual system contributed in any
way to the rapid racial transformation of the Terry Mill student
population, the District Court found that the pre-1969
unconstitutional acts of petitioners were not responsible for the
high percentage of black students at the Terry Mill school in 1969.
Its findings in this respect are illustrative of the problems DCSS
and the District Court faced in integrating the whole district.
Although the District Court found that DCSS was desegregated for
at least a short period under the court-ordered plan of 1969, it
did not base its finding that DCSS had achieved unitary status with
respect to student assignment on that circumstance alone.
Recognizing that "[t]he achievement of unitary status in the area
of student assignment cannot be hedged on the attainment of such
status for a brief moment,"
id., at 37a, the District Court
examined the interaction between DCSS policy and demographic shifts
in DeKalb County.
479
The District Court noted that DCSS had taken specific steps to
combat the effects of demographics on the racial mix of the
schools. Under the 1969 order, a biracial committee had reviewed
all proposed changes in the boundary lines of school attendance
zones. Since the original desegregation order, there had been about
170 such changes. It was found that only three had a partial
segregative effect. An expert testified, and the District Court
found, that even those changes had no significant effect on the
racial mix of the school population, given the tremendous
demographic shifts that were taking place at the same time.
The District Court also noted that DCSS, on its own initiative,
started an M-to-M program in the 1972 school year. The program was
a marked success. Participation increased with each passing year,
so that in the 1986-1987 school year, 4,500 of the 72,000 students
enrolled in DCSS participated. An expert testified that the impact
of an M-to-M program goes beyond the number of students transferred
because students at the receiving school also obtain integrated
learning experiences. The District Court found that about 19% of
the students attending DCSS had an integrated learning experience
as a result of the M-to-M program.
Id., at 40a.
In addition, in the 1980's, DCSS instituted a magnet school
program in schools located in the middle of the county. The magnet
school programs included a performing arts program, two science
programs, and a foreign language program. There was testimony in
the District Court that DCSS also had plans to operate additional
magnet programs in occupational education and gifted and talented
education, as well as a preschool program and an open campus. By
locating these programs in the middle of the county, DCSS sought to
attract black students from the southern part of the county and
white students from the northern part.
Further, the District Court found that DCSS operates a number of
experience programs integrated by race, including
480
a writing center for fifth and seventh graders, a driving range,
summer school programs, and a dialectical speech program. DCSS
employs measures to control the racial mix in each of these special
areas.
In determining whether DCSS has achieved unitary status with
respect to student assignment, the District Court saw its task as
one of deciding if petitioners "have accomplished maximum practical
desegregation of the DCSS or if the DCSS must still do more to
fulfill their affirmative constitutional duty."
Id., at 41a.
Petitioners and respondents presented conflicting expert testimony
about the potential effects that de segregative techniques not
deployed might have had upon the racial mix of the schools. The
District Court found that petitioners' experts were more reliable,
citing their greater familiarity with DCSS, their experience, and
their standing within the expert community. The District Court made
these findings:
"[The actions of DCSS] achieved maximum practical desegregation
from 1969 to 1986. The rapid population shifts in DeKalb County
were not caused by any action on the part of the DCSS. These
demographic shifts were inevitable as the result of
suburbanization, that is, work opportunities arising in DeKalb
County as well as the City of Atlanta, which attracted blacks to
DeKalb; the decline in the number of children born to white
families during this period while the number of children born to
black families did not decrease; blockbusting of formerly white
neighborhoods leading to selling and buying of real estate in the
DeKalb area on a highly dynamic basis; and the completion of
Interstate 20, which made access from DeKalb County into the City
of Atlanta much easier .... There is no evidence that the school
system's previous unconstitutional conduct may have contributed to
this segregation. This court is convinced that any further actions
taken by defendants, while the actions might have made marginal
adjustments in the
481
population trends, would not have offset the factors that were
described above and the same racial segregation would have occurred
at approximately the same speed." Id., at 44a-45a.
The District Court added:
"[A]bsent massive bussing, which is not considered as a viable
option by either the parties or this court, the magnet school
program and the M-to-M program, which the defendants voluntarily
implemented and to which the defendants obviously are dedicated,
are the most effective ways to deal with the effects on student
attendance of the residential segregation existing in DeKalb County
at this time." Id., at 46a.
Having found no constitutional violation with respect to student
assignment, the District Court next considered the other
Green factors, beginning with faculty and staff assignments.
The District Court first found that DCSS had fulfilled its
constitutional obligation with respect to hiring and retaining
minority teachers and administrators. DCSS has taken active steps
to recruit qualified black applicants and has hired them in
significant numbers, employing a greater percentage of black
teachers than the statewide average. The District Court also noted
that DCSS has an "equally exemplary record" in retention of black
teachers and administrators. App. to Pet. for Cert. 49a.
Nevertheless, the District Court found that DCSS had not achieved
or maintained a ratio of black to white teachers and administrators
in each school to approximate the ratio of black to white teachers
and administrators throughout the system. See
Singleton v.
Jackson Municipal Separate School Dist., 419 F.2d
1211 (CA5 1969), cert. denied, 396 U. S. 1032 (1970). In other
words, a racial imbalance existed in the assignment of minority
teachers and administrators. The District Court found that in the
1984-1985 school year, seven schools deviated by more than 10% from
the system-wide average
482
of 26.4% minority teachers in elementary schools and 24.9%
minority teachers in high schools. The District Court also found
that black principals and administrators were overrepresented in
schools with high percentages of black students and
underrepresented in schools with low percentages of black
students.
The District Court found the crux of the problem to be that DCSS
has relied on the replacement process to attain a racial balance in
teachers and other staff and has avoided using mandatory
reassignment. DCSS gave as its reason for not using mandatory
reassignment that the competition among local school districts is
stiff, and that it is difficult to attract and keep qualified
teachers if they are required to work far from their homes. In
fact, because teachers prefer to work close to their homes, DCSS
has a voluntary transfer program in which teachers who have taught
at the same school for a period of three years may ask for a
transfer. Because most teachers request to be transferred to
schools near their homes, this program makes compliance with the
objective of racial balance in faculty and staff more
difficult.
The District Court stated that it was not "unsympathetic to the
difficulties that DCSS faces in this regard," but held that the law
of the Circuit requires DCSS to comply with
Singleton. App.
to Pet. for Cert. 53a. The court ordered DCSS to devise a plan to
achieve compliance with
Singleton, noting that "[i]t would
appear that such compliance will necessitate reassignment of both
teachers and principals." App. to Pet. for Cert. 58a. With respect
to faculty, the District Court noted that meeting
Singleton
would not be difficult, citing petitioners' own estimate that most
schools' faculty could conform by moving, at most, two or three
teachers.
Addressing the more ineffable category of quality of education,
the District Court rejected most of respondents' contentions that
there was racial disparity in the provision of certain educational
resources
(e. g., teachers with advanced
483
degrees, teachers with more experience, library books),
contentions made to show that black students were not being given
equal educational opportunity. The District Court went further,
however, and examined the evidence concerning achievement of black
students in DCSS. It cited expert testimony praising the overall
educational program in the district, as well as objective evidence
of black achievement:
Black students at DCSS made greater gains on the Iowa Tests of
Basic Skills than white students, and black students at DCSS are
more successful than black students nationwide on the Scholastic
Aptitude Test. It made the following finding:
"While there will always be something more that the DCSS can do
to improve the chances for black students to achieve academic
success, the court cannot find, as plaintiffs urge, that the DCSS
has been negligent in its duties to implement programs to assist
black students. The DCSS is a very innovative school system. It has
implemented a number of programs to enrich the lives and enhance
the academic potential of all students, both blacks and whites.
Many remedial programs are targeted in the majority black schools.
Programs have been implemented to involve the parents and offset
negative socio-economic factors. If the DCSS has failed in any way
in this regard, it is not because the school system has been
negligent in its duties." App. to Pet. for Cert. 69a-70a (footnote
omitted).
Despite its finding that there was no intentional violation, the
District Court found that DCSS had not achieved unitary status with
respect to quality of education because teachers in schools with
disproportionately high percentages of white students tended to be
better educated and have more experience than their counterparts in
schools with disproportionately high percentages of black students,
and because per-pupil expenditures in majority white schools
484
exceeded per-pupil expenditures in majority black schools. From
these findings, the District Court ordered DCSS to equalize
spending and remedy the other problems.
The final
Green factors considered by the District Court
were: (1) physical facilities, (2) transportation, and (3)
extracurricular activities. The District Court noted that although
respondents expressed some concerns about the use of portable
classrooms in schools in the southern portion of the county, they
in effect conceded that DCSS has achieved unitary status with
respect to physical facilities.
In accordance with its factfinding, the District Court held that
it would order no further relief in the areas of student
assignment, transportation, physical facilities, and
extracurricular activities. The District Court, however, did order
DCSS to establish a system to balance teacher and principal
assignments and to equalize per-pupil expenditures throughout DCSS.
Having found that blacks were represented on the school board and
throughout DCSS administration, the District Court abolished the
biracial committee as no longer necessary.
Both parties appealed to the United States Court of Appeals for
the Eleventh Circuit. The Court of Appeals affirmed the District
Court's ultimate conclusion that DCSS has not yet achieved unitary
status, but reversed the District Court's ruling that DCSS has no
further duties in the area of student assignment.
887 F.2d
1438 (1989). The Court of Appeals held that the District Court
erred by considering the six
Green factors as separate
categories. The Court of Appeals rejected the District Court's
incremental approach, an approach that has also been adopted by the
Court of Appeals for the First Circuit,
Morgan v.
Nucci, 831 F.2d
313, 318-319 (1987), and held that a school system achieves
unitary status only after it has satisfied all six factors at the
same time for several years. 887 F. 2d, at 1446. Because, under
this test, DCSS had not achieved unitary status at any time, the
Court of Appeals held that DCSS could "not shirk
485
its constitutional duties by pointing to demographic shifts
occurring prior to unitary status."
Id., at 1448. The Court
of Appeals held that petitioners bore the responsibility for the
racial imbalance, and in order to correct that imbalance would have
to take actions that "may be administratively awkward,
inconvenient, and even bizarre in some situations,"
Swann v.
Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1,28 (1971), such
as pairing and clustering of schools, drastic gerrymandering of
school zones, grade reorganization, and busing. We granted
certiorari, 498 U. S. 1081 (1991).
II
Two principal questions are presented. The first is whether a
district court may relinquish its supervision and control over
those aspects of a school system in which there has been compliance
with a desegregation decree if other aspects of the system remain
in noncompliance. As we answer this question in the affirmative,
the second question is whether the Court of Appeals erred in
reversing the District Court's order providing for incremental
withdrawal of supervision in all the circumstances of this
case.
A
The duty and responsibility of a school district once segregated
by law is to take all steps necessary to eliminate the vestiges of
the unconstitutional
de jure system. This is required in
order to ensure that the principal wrong of the
de jure
system, the injuries and stigma inflicted upon the race disfavored
by the violation, is no longer present. This was the rationale and
the objective of
Brown I and
Brown II. In
Brown
I we said: "To separate [black students] from others of similar
age and qualifications solely because of their race generates a
feeling of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be undone."
347 U. S., at 494. We
486
quoted a finding of the three-judge District Court in the
underlying Kansas case that bears repeating here:
"'Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The impact is
greater when it has the sanction of the law; for the policy of
separating the races is usually interpreted as denoting the
inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of
law, therefore, has a tendency to [retard] the educational and
mental development of negro children and to deprive them of some of
the benefits they would receive in a racial[ly] integrated school
system.'" Ibid.
The objective of
Brown I was made more specific by our
holding in
Green that the duty of a former
de jure
district is to "take whatever steps might be necessary to convert
to a unitary system in which racial discrimination would be
eliminated root and branch." 391 U. S., at 437-438. We also
identified various parts of the school system which, in addition to
student attendance patterns, must be free from racial
discrimination before the mandate of
Brown is met: faculty,
staff, transportation, extracurricular activities, and facilities.
391 U. S., at 435. The
Green factors are a measure of the
racial identifiability of schools in a system that is not in
compliance with
Brown, and we instructed the District Courts
to fashion remedies that address all these components of elementary
and secondary school systems.
The concept of unitariness has been a helpful one in defining
the scope of the district courts' authority, for it conveys the
central idea that a school district that was once a dual system
must be examined in all of its facets, both when a remedy is
ordered and in the later phases of desegregation when the question
is whether the district courts' remedial control ought to be
modified, lessened, or withdrawn. But, as we explained last Term in
Board of Ed. of Oklahoma City
487
Public Schools v.
Dowell, 498 U. S. 237, 245-246
(1991), the term "unitary" is not a precise concept:
"[I]t is a mistake to treat words such as 'dual' and 'unitary'
as if they were actually found in the Constitution .... Courts have
used the terms 'dual' to denote a school system which has engaged
in intentional segregation of students by race, and 'unitary' to
describe a school system which has been brought into compliance
with the command of the Constitution. We are not sure how useful it
is to define these terms more precisely, or to create subclasses
within them."
It follows that we must be cautious not to attribute to the term
a utility it does not have. The term "unitary" does not confine the
discretion and authority of the District Court in a way that
departs from traditional equitable principles.
That the term "unitary" does not have fixed meaning or content
is not inconsistent with the principles that control the exercise
of equitable power. The essence of a court's equity power lies in
its inherent capacity to adjust remedies in a feasible and
practical way to eliminate the conditions or redress the injuries
caused by unlawful action. Equitable remedies must be flexible if
these underlying principles are to be enforced with fairness and
precision. In this respect, as we observed in
Swann, "a
school desegregation case does not differ fundamentally from other
cases involving the framing of equitable remedies to repair the
denial of a constitutional right. The task is to correct, by a
balancing of the individual and collective interests, the condition
that offends the Constitution."
Swann, 402 U. S., at 15-16.
The requirement of a unitary school system must be implemented
according to this prescription.
Our application of these guiding principles in
Pasadena Bd.
of Education v.
Spangler, 427 U. S. 424 (1976), is
instructive. There we held that a District Court exceeded its
remedial authority in requiring annual readjustment of school
488
attendance zones in the Pasadena school district when changes in
the racial makeup of the schools were caused by demographic shifts
"not attributed to any segregative acts on the part of the [school
district]."
Id., at 436. In so holding we said:
"It may well be that petitioners have not yet totally achieved
the unitary system contemplated by ... Swann. There has
been, for example, dispute as to the petitioners' compliance with
those portions of the plan specifying procedures for hiring and
promoting teachers and administrators. See 384 F. Supp. 846 (1974),
vacated, 537 F.2d
1031 (1976). But that does not undercut the force of the
principle underlying the quoted language from Swann. In this
case the District Court approved a plan designed to obtain racial
neutrality in the attendance of students at Pasadena's public
schools. No one disputes that the initial implementation of this
plan accomplished that objective. That being the case, the
District Court was not entitled to require the [Pasadena Unified
School District] to rearrange its attendance zones each year so as
to ensure that the racial mix desired by the court was maintained
in perpetuity. For having once implemented a racially neutral
attendance pattern in order to remedy the perceived constitutional
violations on the part of the defendants, the District Court had
fully performed its function of providing the appropriate remedy
for previous racially discriminatory attendance patterns."
Ibid.
See also
id., at 438, n. 5 ("Counsel for the original
plaintiffs has urged, in the courts below and before us, that the
District Court's perpetual 'no majority of any minority'
requirement was valid and consistent with
Swann, at least
until the school system achieved 'unitary' status in all other
respects such as the hiring and promoting of teachers and
administrators. Since we have concluded that the case is moot
with
489
regard to these plaintiffs, these arguments are not properly
before us. It should be clear from what we have said that they have
little substance").
Today, we make explicit the rationale that was central in
Spangler. A federal court in a school desegregation case has
the discretion to order an incremental or partial withdrawal of its
supervision and control. This discretion derives both from the
constitutional authority which justified its intervention in the
first instance and its ultimate objectives in formulating the
decree. The authority of the court is invoked at the outset to
remedy particular constitutional violations. In construing the
remedial authority of the district courts, we have been guided by
the principles that "judicial powers may be exercised only on the
basis of a constitutional violation," and that "the nature of the
violation determines the scope of the remedy."
Swann, supra,
at 16. A remedy is justifiable only insofar as it advances the
ultimate objective of alleviating the initial constitutional
violation.
We have said that the court's end purpose must be to remedy the
violation and, in addition, to restore state and local authorities
to the control of a school system that is operating in compliance
with the Constitution.
Milliken v.
Bradley, 433 U. S. 267, 280-281
(1977) ("[T]he federal courts in devising a remedy must take into
account the interests of state and local authorities in managing
their own affairs, consistent with the Constitution"). Partial
relinquishment of judicial control, where justified by the facts of
the case, can be an important and significant step in fulfilling
the district court's duty to return the operations and control of
schools to local authorities. In
Dowell, we emphasized that
federal judicial supervision of local school systems was intended
as a "temporary measure." 498 U. S., at 247. Although this
temporary measure has lasted decades, the ultimate objective has
not changed-to return school districts to the control of local
authorities. Just as a court has the obligation
490
at the outset of a desegregation decree to structure a plan so
that all available resources of the court are directed to
comprehensive supervision of its decree, so too must a court
provide an orderly means for withdrawing from control when it is
shown that the school district has attained the requisite degree of
compliance. A transition phase in which control is relinquished in
a gradual way is an appropriate means to this end.
As we have long observed, "local autonomy of school districts is
a vital national tradition."
Dayton Bd. of Education v.
Brinkman, 433
U. S. 406, 410 (1977)
(Dayton I). Returning schools to
the control of local authorities at the earliest practicable date
is essential to restore their true accountability in our
governmental system. When the school district and all state
entities participating with it in operating the schools make
decisions in the absence of judicial supervision, they can be held
accountable to the citizenry, to the political process, and to the
courts in the ordinary course. As we discuss below, one of the
prerequisites to relinquishment of control in whole or in part is
that a school district has demonstrated its commitment to a course
of action that gives full respect to the equal protection
guarantees of the Constitution. Yet it must be acknowledged that
the potential for discrimination and racial hostility is still
present in our country, and its manifestations may emerge in new
and subtle forms after the effects of
de jure segregation
have been eliminated. It is the duty of the State and its
subdivisions to ensure that such forces do not shape or control the
policies of its school systems. Where control lies, so too does
responsibility.
We hold that, in the course of supervising desegregation plans,
federal courts have the authority to relinquish supervision and
control of school districts in incremental stages, before full
compliance has been achieved in every area of school operations.
While retaining jurisdiction over the case, the court may determine
that it will not order further
491
remedies in areas where the school district is in compliance
with the decree. That is to say, upon a finding that a school
system subject to a court-supervised desegregation plan is in
compliance in some but not all areas, the court in appropriate
cases may return control to the school system in those areas where
compliance has been achieved, limiting further judicial supervision
to operations that are not yet in full compliance with the court
decree. In particular, the district court may determine that it
will not order further remedies in the area of student assignments
where racial imbalance is not traceable, in a proximate way, to
constitutional violations.
A court's discretion to order the incremental withdrawal of its
supervision in a school desegregation case must be exercised in a
manner consistent with the purposes and objectives of its equitable
power. Among the factors which must inform the sound discretion of
the court in ordering partial withdrawal are the following: whether
there has been full and satisfactory compliance with the decree in
those aspects of the system where supervision is to be withdrawn;
whether retention of judicial control is necessary or practicable
to achieve compliance with the decree in other facets of the school
system; and whether the school district has demonstrated, to the
public and to the parents and students of the once disfavored race,
its good-faith commitment to the whole of the court's decree and to
those provisions of the law and the Constitution that were the
predicate for judicial intervention in the first instance.
In considering these factors, a court should give particular
attention to the school system's record of compliance. A school
system is better positioned to demonstrate its goodfaith commitment
to a constitutional course of action when its policies form a
consistent pattern of lawful conduct directed to eliminating
earlier violations. And, with the passage of time, the degree to
which racial imbalances continue to represent vestiges of a
constitutional violation may dimin-
492
ish, and the practicability and efficacy of various remedies can
be evaluated with more precision.
These are the premises that guided our formulation in
Dowell of the duties of a district court during the final
phases of a desegregation case: "The District Court should address
itself to whether the Board had complied in good faith with the
desegregation decree since it was entered, and whether the vestiges
of past discrimination had been eliminated to the extent
practicable." 498 U. S., at 249-250.
B
We reach now the question whether the Court of Appeals erred in
prohibiting the District Court from returning to DCSS partial
control over some of its affairs. We decide that the Court of
Appeals did err in holding that, as a matter of law, the District
Court had no discretion to permit DCSS to regain control over
student assignment, transportation, physical facilities, and
extracurricular activities, while retaining court supervision over
the areas of faculty and administrative assignments and the quality
of education, where full compliance had not been demonstrated.
It was an appropriate exercise of its discretion for the
District Court to address the elements of a unitary system
discussed in
Green, to inquire whether other elements ought
to be identified, and to determine whether minority students were
being disadvantaged in ways that required the formulation of new
and further remedies to ensure full compliance with the court's
decree. Both parties agreed that quality of education was a
legitimate inquiry in determining DCSS' compliance with the
desegregation decree, and the trial court found it workable to
consider the point in connection with its findings on resource
allocation. Its order retaining supervision over this aspect of the
case has not been challenged by the parties, and we need not
examine it except as it underscores the school district's record of
compliance in some areas but not others. The District Court's
approach illustrates
493
that the
Green factors need not be a rigid framework. It
illustrates also the uses of equitable discretion. By withdrawing
control over areas where judicial supervision is no longer needed,
a district court can concentrate both its own resources and those
of the school district on the areas where the effects of
de
jure discrimination have not been eliminated and further action
is necessary in order to provide real and tangible relief to
minority students.
The Court of Appeals' rejection of the District Court's order
rests on related premises: first, that given noncompliance in some
discrete categories, there can be no partial withdrawal of judicial
control; and second, until there is full compliance, heroic
measures must be taken to ensure racial balance in student
assignments system wide. Under our analysis and our precedents,
neither premise is correct.
The Court of Appeals was mistaken in ruling that our opinion in
Swann requires "awkward," "inconvenient," and "even bizarre"
measures to achieve racial balance in student assignments in the
late phases of carrying out a decree, when the imbalance is
attributable neither to the prior
de jure system nor to a
later violation by the school district but rather to independent
demographic forces. In
Swann we undertook to discuss the
objectives of a comprehensive desegregation plan and the powers and
techniques available to a district court in designing it at the
outset. We confirmed that racial balance in school assignments was
a necessary part of the remedy in the circumstances there
presented. In the case before us the District Court designed a
comprehensive plan for desegregation of DCSS in 1969, one that
included racial balance in student assignments. The desegregation
decree was designed to achieve maximum practicable desegregation.
Its central remedy was the closing of black schools and the
reassignment of pupils to neighborhood schools, with attendance
zones that achieved racial balance. The plan accomplished its
objective in the first year of operation, before dramatic
demographic changes altered residen-
494
tial patterns. For the entire 17-year period respondents raised
no substantial objection to the basic student assignment system, as
the parties and the District Court concentrated on other mechanisms
to eliminate the
de jure taint.
That there was racial imbalance in student attendance zones was
not tantamount to a showing that the school district was in
noncompliance with the decree or with its duties under the law.
Racial balance is not to be achieved for its own sake. I t is to be
pursued when racial imbalance has been caused by a constitutional
violation. Once the racial imbalance due to the
de jure
violation has been remedied, the school district is under no duty
to remedy imbalance that is caused by demographic factors.
Swann, 402 U. S., at 31-32 ("Neither school authorities nor
district courts are constitutionally required to make year-by-year
adjustments of the racial composition of student bodies once the
affirmative duty to desegregate has been accomplished and racial
discrimination through official action is eliminated from the
system. This does not mean that federal courts are without power to
deal with future problems; but in the absence of a showing that
either the school authorities or some other agency of the State has
deliberately attempted to fix or alter demographic patterns to
affect the racial composition of the schools, further intervention
by a district court should not be necessary"). If the unlawful
de jure policy of a school system has been the cause of the
racial imbalance in student attendance, that condition must be
remedied. The school district bears the burden of showing that any
current imbalance is not traceable, in a proximate way, to the
prior violation.
The findings of the District Court that the population changes
which occurred in DeKalb County were not caused by the policies of
the school district, but rather by independent factors, are
consistent with the mobility that is a distinct characteristic of
our society. In one year (from 1987 to 1988) over 40 million
Americans, or 17.6% of the total population,
495
moved households. U. S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States 19 (l11th ed. 1991)
(Table 25). Over a third of those people moved to a different
county, and over six million migrated between States.
Ibid.
In such a society it is inevitable that the demographic makeup of
school districts, based as they are on political subdivisions such
as counties and municipalities, may undergo rapid change.
The effect of changing residential patterns on the racial
composition of schools, though not always fortunate, is somewhat
predictable. Studies show a high correlation between residential
segregation and school segregation. Wilson & Taeuber,
Residential and School Segregation: Some Tests of Their
Association, in Demography and Ethnic Groups 57-58 (F. Bean &
W. Frisbie eds. 1978). The District Court in this case heard
evidence tending to show that racially stable neighborhoods are not
likely to emerge because whites prefer a racial mix of 80% white
and 20% black, while blacks prefer a 50-50 mix.
Where resegregation is a product not of state action but of
private choices, it does not have constitutional implications. It
is beyond the authority and beyond the practical ability of the
federal courts to try to counteract these kinds of continuous and
massive demographic shifts. To attempt such results would require
ongoing and never-ending supervision by the courts of school
districts simply because they were once
de jure segregated.
Residential housing choices, and their attendant effects on the
racial composition of schools, present an ever-changing pattern,
one difficult to address through judicial remedies.
In one sense of the term, vestiges of past segregation by state
decree do remain in our society and in our schools. Past wrongs to
the black race, wrongs committed by the State and in its name, are
a stubborn fact of history. And stubborn facts of history linger
and persist. But though we cannot escape our history, neither must
we overstate its con-
496
sequences in fixing legal responsibilities. The vestiges of
segregation that are the concern of the law in a school case may be
subtle and intangible but nonetheless they must be so real that
they have a causal link to the
de jure violation being
remedied. It is simply not always the case that demographic forces
causing population change bear any real and substantial relation to
a
de jure violation. And the law need not proceed on that
premise.
As the
de jure violation becomes more remote in time and
these demographic changes intervene, it becomes less likely that a
current racial imbalance in a school district is a vestige of the
prior
de jure system. The causal link between current
conditions and the prior violation is even more attenuated if the
school district has demonstrated its good faith. In light of its
finding that the demographic changes in DeKalb County are unrelated
to the prior violation, the District Court was correct to entertain
the suggestion that DCSS had no duty to achieve system-wide racial
balance in the student population. It was appropriate for the
District Court to examine the reasons for the racial imbalance
before ordering an impractical, and no doubt massive, expenditure
of funds to achieve racial balance after 17 years of efforts to
implement the comprehensive plan in a district where there were
fundamental changes in demographics, changes not attributable to
the former
de jure regime or any later actions by school
officials. The District Court's determination to order instead the
expenditure of scarce resources in areas such as the quality of
education, where full compliance had not yet been achieved,
underscores the uses of discretion in framing equitable
remedies.
To say, as did the Court of Appeals, that a school district must
meet all six
Green factors before the trial court can
declare the system unitary and relinquish its control over school
attendance zones, and to hold further that racial balancing by all
necessary means is required in the interim, is
497
simply to vindicate a legal phrase. The law is not so
formalistic. A proper rule must be based on the necessity to find a
feasible remedy that ensures system-wide compliance with the court
decree and that is directed to curing the effects of the specific
violation.
We next consider whether retention of judicial control over
student attendance is necessary or practicable to achieve
compliance in other facets of the school system. Racial balancing
in elementary and secondary school student assignments may be a
legitimate remedial device to correct other fundamental inequities
that were themselves caused by the constitutional violation. We
have long recognized that the
Green factors may be related
or interdependent. Two or more
Green factors may be
intertwined or synergistic in their relation, so that a
constitutional violation in one area cannot be eliminated unless
the judicial remedy addresses other matters as well. We have
observed, for example, that student segregation and faculty
segregation are often related problems. See
Dayton Bd. of
Education v.
Brinkman, 443 U. S. 526, 536 (1979)
(Dayton II) (" '[P]urposeful segregation of faculty by race
was inextricably tied to racially motivated student assignment
practices' ");
Rogers v.
Paul, 382 U. S. 198, 200 (1965)
(students have standing to challenge racial allocation of faculty
because "racial allocation of faculty denies them equality of
educational opportunity without regard to segregation of pupils").
As a consequence, a continuing violation in one area may need to be
addressed by remedies in another. See,
e. g., Bradley v.
Richmond School Bd., 382 U. S. 103, 105 (1965)
(per curiam) ("There is no merit to the suggestion that the
relation between faculty allocation on an alleged racial basis and
the adequacy of the desegregation plans is entirely speculative");
Vaughns v.
Board of Education of Prince George's
County, 742 F. Supp. 1275, 1291 (Md. 1990) ("[T]he components
of
498
a school desegregation plan are interdependent upon, and
interact with, one another, so that changes with respect to one
component may impinge upon the success or failure of another").
There was no showing that racial balancing was an appropriate
mechanism to cure other deficiencies in this case. It is true that
the school district was not in compliance with respect to faculty
assignments, but the record does not show that student
reassignments would be a feasible or practicable way to remedy this
defect. To the contrary, the District Court suggests that DCSS
could solve the faculty assignment problem by reassigning a few
teachers per school. The District Court, not having our analysis
before it, did not have the opportunity to make specific findings
and conclusions on this aspect of the case, however. Further
proceedings are appropriate for this purpose.
The requirement that the school district show its goodfaith
commitment to the entirety of a desegregation plan so that parents,
students, and the public have assurance against further injuries or
stigma also should be a subject for more specific findings. We
stated in
Dowell that the good-faith compliance of the
district with the court order over a reasonable period of time is a
factor to be considered in deciding whether or not jurisdiction
could be relinquished. 498 U. S., at 249-250 ("The District Court
should address itself to whether the Board had complied in good
faith with the desegregation decree since it was entered, and
whether the vestiges of past discrimination had been eliminated to
the extent practicable"). A history of good-faith compliance is
evidence that any current racial imbalance is not the product of a
new
de jure violation, and enables the district court to
accept the school board's representation that it has accepted the
principle of racial equality and will not suffer intentional
discrimination in the future. See
Morgan v.
Nucci,
831
499
F. 2d, at 321 ("A finding of good faith ... reduces the
possibility that a school system's compliance with court orders is
but a temporary constitutional ritual").
When a school district has not demonstrated good faith under a
comprehensive plan to remedy ongoing violations, we have without
hesitation approved comprehensive and continued district court
supervision. See
Columbus Bd. of Education v.
Penick,
443 U. S. 449,
461 (1979) (predicating liability in part on the finding that the
school board "'never actively set out to dismantle [the] dual
system,'"
Penick v.
Columbus Bd. of Education, 429 F.
Supp. 229, 260 (SD Ohio
1977)); Dayton II, supra, at 534
(adopting Court of Appeals holding that the "intentionally
segregative impact of various practices since 1954 ... were of
systemwide import and an appropriate basis for a systemwide
remedy").
In contrast to the circumstances in
Penick and
Brinkman, the District Court in this case stated that
throughout the period of judicial supervision it has been impressed
by the successes DCSS has achieved and its dedication to providing
a quality education for all students, and that DCSS "has travelled
the often long road to unitary status almost to its end." With
respect to those areas where compliance had not been achieved, the
District Court did not find that DCSS had acted in bad faith or
engaged in further acts of discrimination since the desegregation
plan went into effect. This, though, may not be the equivalent of a
finding that the school district has an affirmative commitment to
comply in good faith with the entirety of a desegregation plan, and
further proceedings are appropriate for this purpose as well.
The judgment is reversed, and the case is remanded to the Court
of Appeals. It should determine what issues are open for its
further consideration in light of the previous briefs and arguments
of the parties and in light of the principles set forth in this
opinion. Thereupon it should order further
500
proceedings as necessary or order an appropriate remand to the
District Court.
Each party is to bear its own costs.
It is so ordered.
JUSTICE THOMAS took no part in the consideration or decision of
this case.
JUSTICE SCALIA, concurring.
The District Court in the present case found that the imbalances
in student assignment were attributable to private demographic
shifts rather than governmental action. Without disturbing this
finding, and without finding that revision of student assignments
was necessary to remedy some other unlawful government action, the
Court of Appeals ordered DeKalb County to institute massive busing
and other programs to achieve integration. The Court convincingly
demonstrates that this cannot be reconciled with our cases, and I
join its opinion.
Our decision will be of great assistance to the citizens of
DeKalb County, who for the first time since 1969 will be able to
run their own public schools, at least so far as student
assignments are concerned. It will have little effect, however,
upon the many other school districts throughout the country that
are still being supervised by federal judges, since it turns upon
the extraordinarily rare circumstance of a
finding that no
portion of the current racial imbalance is a remnant of prior
de
jure discrimination. While it is perfectly appropriate for the
Court to decide this case on that narrow basis, we must resolve-if
not today, then soonwhat is to be done in the vast majority of
other districts, where, though our cases continue to profess that
judicial oversight of school operations is a temporary expedient,
democratic processes remain suspended, with no prospect of
restoration, 38 years after
Brown v.
Board of
Education, 347 U.
S. 483 (1954).
501
Almost a quarter century ago, in
Green v.
School Bd.
of New Kent County, 391 U. S. 430, 437-438
(1968), this Court held that school systems which had been
enforcing
de jure segregation at the time of
Brown
had not merely an obligation to assign students and resources on a
race-neutral basis but also an "affirmative duty" to "desegregate,"
that is, to achieve insofar as practicable racial balance in their
schools. This holding has become such a part of our legal fabric
that there is a tendency, reflected in the Court of Appeals opinion
in this case, to speak as though the Constitution requires such
racial balancing. Of course it does not: The Equal Protection
Clause reaches only those racial imbalances shown to be
intentionally caused by the State. As the Court reaffirms today, if
"desegregation" (i.
e., racial balancing) were properly to
be ordered in the present case, it would be not because the extant
racial imbalance in the DeKalb County School System offends the
Constitution, but rather because that imbalance is a "lingering
effect" of the pre-1969
de jure segregation that offended
the Constitution. For all our talk about "unitary status," "release
from judicial supervision," and "affirmative duty to desegregate,"
the sole question in school desegregation cases (absent an
allegation that current policies are intentionally discriminatory)
is one of remedies for past violations.
Identifying and undoing the effects of some violations of the
law is easy. Where, for example, a tax is found to have been
unconstitutionally imposed, calculating the funds derived from that
tax (which must be refunded), and distinguishing them from the
funds derived from other taxes (which may be retained), is a simple
matter. That is not so with respect to the effects of
unconstitutionally operating a legally segregated school system;
they are uncommonly difficult to identify and to separate from the
effects of other causes. But one would not know that from our
instructions to the lower courts on this subject, which tend to be
at a level of generality that assumes facile reduction to
specifics.
502
"'[Desegregation] decrees,'" we have said, "'exceed appropriate
limits if they are aimed at eliminating a condition that does not
violate the Constitution or does not flow from such a violation,'"
Board of Education of Oklahoma City Public Schools v.
Dowell, 498 U.
S. 237, 247 (1991);
Milliken v.
Bradley, 433 U. S. 267, 282
(1977). We have never sought to describe how one identifies a
condition as the effluent of a violation, or how a "vestige" or a
"remnant" of past discrimination is to be recognized. Indeed, we
have not even betrayed an awareness that these tasks are
considerably more difficult than calculating the amount of taxes
unconstitutionally paid. It is time for us to abandon our studied
disregard of that obvious truth and to adjust our jurisprudence to
its reality.
Since parents and school boards typically want children to
attend schools in their own neighborhood, "[t]he principal cause of
racial and ethnic imbalance in ... public schools across the
country-North and South-is the imbalance in residential patterns."
Austin Independent School Dist. v.
United States, 429
U. S. 990, 994 (1976) (Powell, J., concurring). That imbalance in
re;sidential patterns, in turn, "doubtless result[s] from a melange
of past happenings prompted by economic considerations, private
discrimination, discriminatory school assignments, or a desire to
reside near people of one's own race or ethnic background."
Columbus Bd. of Education v.
Penick, 443 U. S. 449, 512 (1979)
(REHNQUIST, J., dissenting); see also
Pasadena Bd. of
Education v.
Spangler, 427 U. S. 424, 435-437
(1976). Consequently, residential segregation "is a national, not a
southern[,] phenomenon" which exists "'regardless of the character
of local laws and policies, and regardless of the extent of other
forms of segregation or discrimination.'"
Keyes v.
School
Dist. No.1, Denver, 413 U. S. 189, 223, and
n. 9 (1973) (Powell, J., concurring in part and dissenting in
part), quoting K. Taeuber, Negroes in Cities 36 (1965).
503
Racially imbalanced schools are hence the product of a blend of
public and private actions, and any assessment that they would not
be segregated, or would not be
as segregated, in the absence
of a particular one of those factors is guesswork. It is similarly
guesswork, of course, to say that they
would be segregated,
or would be
as segregated, in the absence of one of those
factors. Only in rare cases such as this one and
Spangler,
see 427 U. S., at 435-437, where the racial imbalance had been
temporarily corrected after the abandonment of
de jure
segregation, can it be asserted with any degree of confidence that
the past discrimination is no longer playing a proximate role.
Thus, allocation of the burden of proof foreordains the result in
almost all of the "vestige of past discrimination" cases. If, as is
normally the case under our equal protection jurisprudence (and in
the law generally), we require the plaintiffs to establish the
asserted facts entitling them to relief-that the racial imbalance
they wish corrected is at least in part the vestige of an old
de
jure system-the plaintiffs will almost always lose. Conversely,
if we alter our normal approach and require the school authorities
to establish the negative-that the imbalance is
not
attributable to their past discrimination-the plaintiffs will
almost always win. See
Penick, supra, at 471 (Stewart, J.,
concurring in result).
Since neither of these alternatives is entirely palatable, an
observer unfamiliar with the history surrounding this issue might
suggest that we avoid the problem by requiring only that the school
authorities establish a regime in which parents are free to
disregard neighborhood-school assignment, and to send their
children (with transportation paid) to whichever school they
choose. So long as there is free choice, he would say, there is no
reason to require that the schools be made identical. The
constitutional right is equal racial access to schools, not access
to racially equal schools; whatever racial imbalances such a
free-choice system might produce would be the product of private
forces. We appar-
504
ently envisioned no more than this in our initial
post-Brown cases. * It is also the approach we actually
adopted in
Bazemore v.
Friday, 478 U. S. 385, 407-409
(1986) (WHITE, J., concurring), which concerned remedies for prior
de jure segregation of state university-operated clubs and
services.
But we ultimately charted a different course with respect to
public elementary and secondary schools. We concluded in
Green that a "freedom of choice" plan was not necessarily
sufficient, 391 U. S., at 439-440, and later applied this
conclusion to all jurisdictions with a history of intentional
segregation:
" 'Racially neutral' assignment plans proposed by school
authorities to a district court may be inadequate; such plans may
fail to counteract the continuing effects of past school
segregation resulting from discriminatory location of school sites
or distortion of school size in order to achieve or maintain an
artificial racial separation. When school authorities present a
district court with a 'loaded game board,' affirmative action in
the form of remedial altering of attendance zones is proper to
achieve truly nondiscriminatory assignments." Swann v.
Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 28 (1971).
*See,
e. g., Cooper v.
Aaron, 358 U. S. 1, 7 (1958)
("[O]bedience to the duty of desegregation would require the
immediate general admission of Negro children ... at particular
schools");
Goss v.
Board of Education of Knoxville,
373 U. S. 683,
687 (1963) (holding unconstitutional a minorityto-majority transfer
policy which was unaccompanied by a policy allowing
majority-to-minority transfers, but noting that "if the transfer
provisions were made available to all students regardless of their
race and regardless as well of the racial composition of the school
to which he requested transfer we would have an entirely different
case. Pupils could then at their option (or that of their parents)
choose, entirely free of any imposed racial considerations, to
remain in the school of their zone or transfer to another").
505
Thus began judicial recognition of an "affirmative duty" to
desegregate,
id., at 15;
Green, supra, at 437-438,
achieved by allocating the burden of negating causality to the
defendant. Our
post-Green cases provide that, once
state-enforced school segregation is shown to have existed in a
jurisdiction in 1954, there arises a presumption, effectively
irrebuttable (because the school district cannot prove the
negative), that any current racial imbalance is the product of that
violation, at least if the imbalance has continuously existed, see,
e. g., Swann, supra, at 26;
Keyes, 413
U. S., at 209-210.
In the context of elementary and secondary education, the
presumption was extraordinary in law but not unreasonable in fact.
"Presumptions normally arise when proof of one fact renders the
existence of another fact 'so probable that it is sensible and
timesaving to assume the truth of [the inferred] fact ... until the
adversary disproves it.'"
NLRB v.
Curtin Matheson
Scientific, Inc., 494 U. S. 775, 788-789
(1990), quoting E. Cleary, McCormick on Evidence § 343, p. 969 (3d
ed. 1984). The extent and recency of the prior discrimination, and
the improbability that young children (or their parents) would use
"freedom of choice" plans to disrupt existing patterns "warrant[ed]
a presumption [that] schools that are substantially
disproportionate in their racial composition" were remnants of the
de jure system.
Swann, supra, at 26.
But granting the merits of this approach at the time of
Green, it is now 25 years later. "From the very first,
federal supervision of local school systems was intended as a
temporary measure to remedy past discrimination."
Dowell,
498 U. S., at 247 (emphasis added). We envisioned it as
temporary partly because "[n]o single tradition in public education
is more deeply rooted than local control over the operation of
schools,"
Milliken v.
Bradley, 418 U. S. 717, 741 (1974)
(Milliken I), and because no one's interest is furthered by
subjecting the Nation's educational system to "judicial tutelage
for the indefinite future,"
Dowell, supra, at 249; see
also
506
Dayton Bd. of Education v.
Brinkman, 433 U. S. 406, 410
(1977); Spangler v.
Pasadena City Bd. of Education,
611 F. 2d 1239, 1245, n. 5 (CA9 1979) (Kennedy, J.,
concurring). But we also envisioned it as temporary, I think,
because the rational basis for the extraordinary presumption of
causation simply must dissipate as the
de jure system and
the school boards who produced it recede further into the past.
Since a multitude of private factors has shaped school systems in
the years after abandonment of
de jure segregation-normal
migration, population growth (as in this case), "white flight" from
the inner cities, increases in the costs of new facilitiesthe
percentage of the current makeup of school systems attributable to
the prior, government-enforced discrimination has diminished with
each passing year, to the point where it cannot realistically be
assumed to be a significant factor.
At some time, we must acknowledge that it has become absurd to
assume, without any further proof, that violations of the
Constitution dating from the days when Lyndon Johnson was
President, or earlier, continue to have an appreciable effect upon
current operation of schools. We are close to that time. While we
must continue to prohibit, without qualification, all racial
discrimination in the operation of public schools, and to afford
remedies that eliminate not only the discrimination but its
identified consequences, we should consider laying aside the
extraordinary, and increasingly counterfactual, presumption of
Green. We must soon revert to the ordinary principles of our
law, of our democratic heritage, and of our educational tradition:
that plaintiffs alleging equal protection violations must prove
intent and causation and not merely the existence of racial
disparity, see
Bazemore, supra, at 407-409 (WHITE, J.,
concurring);
Washington v.
Davis, 426 U. S. 229, 245
(1976); that public schooling, even in the South, should be
controlled by locally elected authorities acting in conjunction
with parents, see,
e. g., Dowell, supra, at 248;
Dayton,
supra, at 410;
Milliken I, supra, at
507
741-742; and that it is "desirable" to permit pupils to attend
"schools nearest their homes,"
Swann, 402 U. S., at 28.
JUSTICE SOUTER, concurring.
I join the Court's opinion holding that where there are vestiges
of a dual system in some of a judicially supervised school system's
aspects, or
Green-type factors, * a district court will
retain jurisdiction over the system, but need not maintain constant
supervision or control over factors as to which compliance has been
achieved. I write separately only to explain my understanding of
the enquiry required by a district court applying the principle we
set out today.
We recognize that although demographic changes influencing the
composition of a school's student population may well have no
causal link to prior
de jure segregation, judicial control
of student assignments may still be necessary to remedy persisting
vestiges of the unconstitutional dual system, such as remaining
imbalance in faculty assignments. See
ante, at 497-498. This
is, however, only one of several possible causal relationships
between or among unconstitutional acts of school segregation and
various
Green-type factors. I think it is worth mentioning
at least two others: the dual school system itself as a cause of
the demographic shifts with which the district court is faced when
considering a partial relinquishment of supervision, and a
Green-type factor other than student assignments as a
possible cause of imbalanced student assignment patterns in the
future.
The first would occur when demographic change toward segregated
residential patterns is itself caused by past school segregation
and the patterns of thinking that segregation creates. Such
demographic change is not an independent, supervening cause of
racial imbalance in the student body, and we have said before that
when demographic change is
*Green v.
School Ed. of New Kent County, 391 U. S. 430 (1968).
Green's list of specific factors, of course, need not be
treated as exclusive. See
ante, at 492-493.
508
not independent of efforts to segregate, the causal relationship
may be considered in fashioning a school desegregation remedy. See
Swann v.
Charlotte-Mecklenburg Bd. of Education,
402 U. S. 1, 21
(1971). Racial imbalance in student assignments caused by
demographic change is not insulated from federal judicial oversight
where the demographic change is itself caused in this way, and
before deciding to relinquish supervision and control over student
assignments, a district court should make findings on the presence
or absence of this relationship.
The second and related causal relationship would occur after the
district court has relinquished supervision over a remedied aspect
of the school system, when future imbalance in that remedied
Green-type factor (here, student assignments) would be
caused by remaining vestiges of the dual system. Even after
attaining compliance as to student composition, other factors such
as racial composition of the faculty, quality of the physical
plant, or per-pupil expenditures may leave schools racially
identifiable. (In this very case, for example, there is a
correlation in particular schools of overrepresentation of black
principals and administrators, lower per-pupil expenditures, and
high percentages of black students. Moreover, the schools in the
predominantly black southern section of the school district are the
only ones that use "portable classrooms," i.
e., trailers.
See
ante, at 481482, 484.) If such other factors leave a
school identifiable as "black," as soon as the district court stops
supervising student assignments, nearby white parents may move in
the direction of racially identifiable "white" schools, or may
simply move their children into these schools. In such a case, the
vestige of discrimination in one factor will act as an incubator
for resegregation in others. Before a district court ends its
supervision of student assignments, then, it should make a finding
that there is no immediate threat of unremedied
Green-type
factors causing population or student enrollment changes that in
turn may imbalance student composi-
509
tion in this way. And, because the district court retains
jurisdiction over the case, it should of course reassert control
over student assignments if it finds that this does happen.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE O'CONNOR
join, concurring in the judgment.
It is almost 38 years since this Court decided
Brown
v.
Board of Education, 347 U. S. 483 (1954). In
those 38 years the students in DeKalb County, Ga., never have
attended a desegregated school system even for one day. The
majority of "black" students never have attended a school that was
not disproportionately black. Ignoring this glaring dual character
of the DeKalb County School System (DCSS), part "white" and part
"black," the District Court relinquished control over student
assignments, finding that the school district had achieved "unitary
status" in that aspect of the system. No doubt frustrated by the
continued existence of duality, the Court of Appeals ordered the
school district to take extraordinary measures to correct all
manifestations of this racial imbalance. Both decisions, in my
view, were in error, and I therefore concur in the Court's decision
to vacate the judgment and remand the case.
I also am in agreement with what I consider to be the holdings
of the Court. I agree that in some circumstances the District Court
need not interfere with a particular portion of the school system,
even while, in my view, it must retain jurisdiction over the entire
system until all vestiges of state-imposed segregation have been
eliminated. See
ante, at 490-491. I also agree that whether
the District Court must order DCSS to balance student assignments
depends on whether the current imbalance is traceable to unlawful
state policy and on whether such an order is necessary to fashion
an effective remedy. See
ante, at 491, 493-494, 497-498.
Finally, I agree that the good faith of the school board is
relevant to these inquiries. See
ante, at 498-499.
510
BLACKMUN, J., concurring in judgment
I write separately for two purposes. First, I wish to be precise
about my understanding of what it means for the District Court in
this case to retain jurisdiction while relinquishing "supervision
and control" over a subpart of a school system under a
desegregation decree. Second, I write to elaborate on factors the
District Court should consider in determining whether racial
imbalance is traceable to board actions and to indicate where, in
my view, it failed to apply these standards.
I
Beginning with
Brown, and continuing through the Court's
most recent school-desegregation decision in
Board of Ed. of
Oklahoma City Public Schools v.
Dowell, 498 U. S. 237 (1991),
this Court has recognized that when the local government has been
running
de jure segregated schools, it is the operation of a
racially segregated school
system that must be remedied, not
discriminatory policy in some discrete subpart of that system.
Consequently, the Court in the past has required, and decides again
today, that even if the school system ceases to discriminate with
respect to one of the
Green-type factors, "the [district]
court should retain jurisdiction until it is clear that
state-imposed segregation has been
completely removed."
Green v.
School Bd. of New Kent County, 391 U. S. 430, 439 (1968)
(emphasis added);
Raney v.
Board of Ed. of Gould School
Dist., 391 U. S.
443, 449 (1968); see
ante, at 491.
That the District Court's jurisdiction should continue until the
school board demonstrates full compliance with the Constitution
follows from the reasonable skepticism that underlies judicial
supervision in the first instance. This Court noted in
Dowell: "A district court need not accept at face value the
profession of a school board which has intentionally discriminated
that it will cease to do so in the future." 498 U. S., at 249. It
makes little sense, it seems to me, for the court to disarm itself
by renouncing jurisdiction in one aspect of a school system, while
violations of the Equal Protec-
511
tion Clause persist in other aspects of the same system. Cf.
Keyes v.
School Dist. No.1, Denver, 413 U. S. 189,207 (1973).
It would seem especially misguided to place unqualified reliance on
the school board's promises in this case, because the two areas of
the school system the District Court found still in violation of
the Constitution-expenditures and teacher assignments-are two of
the
Green factors over which DCSS exercises the greatest
control.
The obligations of a district court and a school district under
its jurisdiction have been clearly articulated in the Court's many
desegregation cases. Until the desegregation decree is dissolved
under the standards set forth in
Dowell, the school board
continues to have "the affirmative duty to take whatever steps
might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch."
Green,
391 U. S., at 437-438. The duty remains enforceable by the district
court without any new proof of a constitutional violation, and the
school district has the burden of proving that its actions are
eradicating the effects of the former
de jure regime. See
Dayton Board of Education v.
Brinkman, 443 U. S. 526, 537
(1979);
Keyes, 413 U. S., at 208-211;
Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 26 (1971);
Green, 391 U. S., at 439.
Contrary to the Court of Appeals' conclusion, however, retaining
jurisdiction does not obligate the district court in all
circumstances to maintain active supervision and control,
continually ordering reassignment of students. The "duty" of the
district court is to guarantee that the school district
"'eliminate[s] the discriminatory effects of the past as well as to
bar like discrimination in the future.'''
Green, 391 U. S.,
at 438, n. 4. This obligation requires the court to review
school-board actions to ensure that each one "will further rather
than delay conversion to a unitary, nonracial nondiscriminatory
school system."
Monroe v.
Board of Comm'rs of
Jackson, 391 U.
S. 450, 459 (1968); see also
Dayton Board of Education,
443 U. S., at 538;
United States v.
512
BLACKMUN, J., concurring in judgment
Scotland Neck Board of Education, 407 U. S. 484, 489
(1972). But this obligation does not always require the district
court to order new, affirmative action simply because of racial
imbalance in student assignment.
Whether a district court must maintain active supervision over
student assignment, and order new remedial actions, depends on two
factors. As the Court discusses, the district court must order
changes in student assignment if it "is necessary or practicable to
achieve compliance in other facets of the school system."
Ante, at 497; see also
ante, at 507 (SouTER, J.,
concurring). The district court also must order affirmative action
in school attendance if the school district's conduct was a
"contributing cause" of the racially identifiable schools.
Columbus Board of Education v.
Penick, 443 U. S. 449, 465, n. 13
(1979); see also
Keyes, 413 U. S., at 211, and n. 17 (the
school board must prove that its conduct "did not create or
contribute to" the racial identifiability of schools or that
racially identifiable schools are "in no way the result of" school
board action). It is the application of this latter causation
requirement that I now examine in more detail.
II A
DCSS claims that it need not remedy the segregation in DeKalb
County schools because it was caused by demographic changes for
which DCSS has no responsibility. It is not enough, however, for
DCSS to establish that demographics exacerbated the problem; it
must prove that its own policies did not contribute.1 Such
contribution can occur in at
1 The Court's cases make clear that there is a presumption in a
former
de jure segregated school district that the board's
actions caused the racially identifiable schools, and it is the
school board's obligation to rebut that presumption. See
Dayton
Board of Education v.
Brinkman, 443 U. S. 526, 537
(1979);
Keyes v.
School Dist. No.1, Denver, 413 U. S. 189,208,211
(1973); Swann v.
Charlotte-Mecklenburg Board of
Education, 402 U.
S. 1, 26 (1971);
ante, at 494-495.
513
least two ways: DCSS may have contributed to the demographic
changes themselves, or it may have contributed directly to the
racial imbalance in the schools.
To determine DCSS' possible role in encouraging the residential
segregation, the court must examine the situation with special
care. "[A] connection between past segregative acts and present
segregation may be present even when not apparent and ... close
examination is required before concluding that the connection does
not exist."
Keyes, 413 U. S., at 211. Close examination is
necessary because what might seem to be purely private preferences
in housing may in fact have been created, in part, by actions of
the school district.
"People gravitate toward school facilities, just as schools are
located in response to the needs of people. The location of schools
may thus influence the patterns of residential development of a
metropolitan area and have important impact on composition of
inner-city neighborhoods." Swann, 402 U. S., at 20-21.
This interactive effect between schools and housing choices may
occur because many families are concerned about the racial
composition of a prospective school and will make residential
decisions accordingly.2 Thus, schools that are demonstrably black
or white provide a signal to these families, perpetuating and
intensifying the residential movement. See
Keyes, 413 U. S.,
at 202;
Columbus Board of Education, 443 U. S., at 465, n.
13;
ante, at 507-508 (SOUTER, J., concurring).
School systems can identify a school as "black" or "white" in a
variety of ways; choosing to enroll a racially identifiable
2 See Taeuber, Housing, Schools, and Incremental Segregative
Effects, 441 Annals Am. Acad. Pol. & Soc. Sci. 157 (1979);
Orfield, School Segregation and Residential Segregation, in School
Desegregation: Past, Present, and Future 227, 234-237 (w. Stephan
& J. Feagin eds. 1980); Elam, The 22nd Annual Gallup Poll of
Public's Attitudes Toward the Public Schools, 72 Phi Delta Kappan
41, 44-45 (1990).
514
BLACKMUN, J., concurring in judgment
student population is only the most obvious. The Court has
noted: "[T]he use of mobile classrooms, the drafting of student
transfer policies, the transportation of students, and the
assignment of faculty and staff, on racially identifiable bases,
have the clear effect of earmarking schools according to their
racial composition."
Keyes, 413 U. S., at 202. Because of
the various methods for identifying schools by race, even if a
school district manages to desegregate student assignments at one
point, its failure to remedy the constitutional violation in its
entirety may result in resegregation, as neighborhoods respond to
the racially identifiable schools. See
ante, at 508-509
(SOUTER, J., concurring). Regardless of the particular way in which
the school district has encouraged residential segregation, this
Court's decisions require that the school district remedy the
effect that such segregation has had on the school system.
In addition to exploring the school district's influence on
residential segregation, the District Court here should examine
whether school-board actions might have contributed to school
segregation. Actions taken by a school district can aggravate or
eliminate school segregation independent of residential
segregation. School-board policies concerning placement of new
schools and closure of old schools and programs such as magnet
classrooms and majority-to-minority (M-to-M) transfer policies
affect the racial composition of the schools. See
Swann, 402
U. S., at 20-21, 26-27. A school district's failure to adopt
policies that effectively desegregate its schools continues the
violation of the Fourteenth Amendment. See
Columbus Board of
Education, 443 U. S., at
458-459; Dayton Board of
Education, 443 U. S., at 538. The Court many times has noted
that a school district is not responsible for all of society's
ills, but it bears full responsibility for schools that have never
been desegregated. See,
e. g., Swann, supra.
515
B
The District Court's opinion suggests that it did not examine
DCSS' actions in light of the foregoing principles. The court did
note that the migration farther into the suburbs was accelerated by
"white flight" from black schools and the "blockbusting" of former
white neighborhoods. It did not examine, however, whether DCSS
might have encouraged that flight by assigning faculty and
principals so as to identify some schools as intended respectively
for black students or white students. See App. 226-231. Nor did the
court consider how the placement of schools, the attendance zone
boundaries, or the use of mobile classrooms might have affected
residential movement. The court, in my view, failed to consider the
many ways DCSS may have contributed to the demographic shifts.
Nor did the District Court correctly analyze whether DCSS' past
actions had contributed to the school segregation independent of
residential segregation. The court did not require DCSS to bear the
"heavy burden" of showing that student assignment policies-policies
that continued the effects of the dual system-served important and
legitimate ends. See
Dayton Board of Education, 443 U. S.,
at 538;
Swann, 402 U. S., at 26. Indeed, the District Court
said flatly that it would "not dwell on what might have been," but
would inquire only as to "what else should be done now." App. 221.
But this Court's decisions
require the District Court to
"dwell on what might have been." In particular, they require the
court to examine the past to determine whether the current racial
imbalance in the schools is attributable in part to the former
de jure segregated regime or any later actions by school
officials.
As the Court describes, the District Court placed great emphasis
on its conclusion that DCSS, in response to the court order, had
desegregated student assignment in 1969. DCSS' very first action
taken in response to the court decree, however, was to shape
attendance zones to result
516
BLACKMUN, J., concurring in judgment
in two schools that were more than 50% black, despite a
district-wide black student population of less than 6%. See
ante, at 477-478. Within a year, another school became
majority black, followed by four others within the next two years.
App. 304, 314, 350, 351, 368. Despite the existence of these
schools, the District Court found that DCSS effectively had
desegregated for a short period of time with respect to student
assignment. See
ante, at 478. The District Court justified
this finding by linking the school segregation exclusively to
residential segregation existing prior to the court order. See
ibid.
But residential segregation that existed
prior to the
desegregation decree cannot provide an excuse. It is not enough
that DCSS adopt race-neutral policies in response to a court
desegregation decree. Instead, DCSS is obligated to "counteract the
continuing effects of past school segregation."
Swann, 402
U. S., at 28. Accordingly, the school district did not meet its
affirmative duty simply by adopting a neighborhood-school plan,
when already existing residential segregation inevitably
perpetuated the dual system. See
Davis v.
Board of School
Comm'rs of Mobile County, 402 U. S. 33, 37 (1971);
Swann, 402 U. S., at 25-28, 30.
Virtually all the demographic changes that DCSS claims caused
the school segregation occurred after 1975. See
ante, at
475; App. 215, 260. Of particular relevance to the causation
inquiry, then, are DCSS' actions prior to 1975; failures during
that period to implement the 1969 decree render the school
district's contentions that its noncompliance is due simply to
demographic changes less plausible.
A review of the record suggests that from 1969 until 1975, DCSS
failed to desegregate its schools. During that period, the number
of students attending racially identifiable schools actually
increased, and increased more quickly than the increase in black
students. By 1975, 73% of black elementary students and 56% of
black high school students were attending majority black schools,
although the percentages of black
517
students in the district population were just 20% and 13%,
respectively.
Id., at 269-380.
Of the 13 new elementary schools DCSS opened between 1969 and
1975, 6 had a total of four black students in 1975.
Id., at
272, 299, 311, 316, 337, 353. One of the two high schools DCSS
opened had no black students at alP
Id., at 367, 361. The
only other measure taken by DCSS during the 1969-1975 period was to
adopt the M -to- M transfer program in 1972. Due, however, to
limitations imposed by school-district administrators-including a
failure to provide transportation, "unnecessary red tape," and
limits on available transfer schools-only one-tenth of 1% of the
students were participating in the transfer program as of the
19751976 school year.
Id., at 75, 80.
In 1976, when the District Court reviewed DCSS' actions in the M
-to- M program, it concluded that DCSS' limitations on the program
"perpetuate the vestiges of a dual system."
Id., at 83.
Noting that the Department of Health, Education, and Welfare had
found that DCSS had ignored its responsibility affirmatively to
eradicate segregation and perpetuate desegregation, the District
Court found that attendance zone changes had perpetuated the dual
system in the county.
Id., at 89, 91.
Thus, in 1976, before most of the demographic changes, the
District Court found that DCSS had not complied with the 1969 order
to eliminate the vestiges of its former
de jure school
system. Indeed, the 1976 order found that DCSS had contributed to
the growing racial imbalance of its schools. Given these
determinations in 1976, the District Court, at a minimum, should
have required DCSS to prove that, but for the demographic changes
between 1976 and 1985, its actions would have been sufficient to
"convert promptly to a system without a 'white' school and a
'Negro' school, but just
3 By 1986, one of those two high schools was 2.4% black. The
other was 91.7% black. Of the 13 elementary schools, 8 were either
virtually all black or all white and all were racially
identifiable. App. 269-359.
518
BLACKMUN, J., concurring in judgment
schools."
Green, 391 U. S., at 442. The available
evidence suggests that this would be a difficult burden for DCSS to
meet.
DCSS has undertaken only limited remedial actions since the 1976
court order. The number of students participating in the M-to-M
program has expanded somewhat, composing about 6% of the current
student population. The district also has adopted magnet programs,
but they involve fewer than 1% of the system's students. Doubtless
DCSS could have started and expanded its magnet and M-to-M programs
more promptly; it could have built and closed schools with a view
toward promoting integration of both schools and neighborhoods;
redrawn attendance zones; integrated its faculty and
administrators; and spent its funds equally. But it did not. DCSS
must prove that the measures it actually implemented satisfy its
obligation to eliminate the vestiges of
de jure segregation
originally discovered in 1969, and still found to exist in
1976.
III
The District Court apparently has concluded that DCSS should be
relieved of the responsibility to desegregate because such
responsibility would be burdensome. To be sure, changes in
demographic patterns aggravated the vestiges of segregation and
made it more difficult for DCSS to desegregate. But an integrated
school system is no less desirable because it is difficult to
achieve, and it is no less a constitutional imperative because that
imperative has gone unmet for 38 years.
Although respondents challenged the District Court's causation
conclusions in the Court of Appeals, that court did not reach the
issue. Accordingly, in addition to the issues the Court suggests be
considered in further proceedings, I would remand for the Court of
Appeals to review, under the foregoing principles, the District
Court's finding that DCSS has met its burden of proving the
racially identifiable schools are in no way the result of past
segregative action.
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