Rehearing Denied Jan. 22, 1979.
See 439 U.S. 1135.
On petitions for writs of certiorari to the United States Court
of Appeals for the Fifth Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice REHNQUIST, with whom Mr. Justice POWELL joins,
dissenting.
Efforts to describe the complex of factors that go into a
decision by this Court to deny certiorari in any given case date
back at least to the opinion of Mr. Justice Frankfurter in Maryland
v. Baltimore Radio Show,
338 U.S. 912 (1950), and
I shall make no attempt to embroider them here. Some Members of the
Court may feel that a case is wrongly decided, but lacking in
general importance; others may feel that it is of general
importance, but rightly decided; for either reason, a vote to deny
certiorari is logically dictated. In these cases it seems to me
demonstrable that the Court of Appeals has not properly assessed
the relationship between Swann v. Charlotte-Mecklenburg Board of
Education,
402 U.S.
1 (1971), and Pasadena City Board of Education v. Spangler,
427 U.S. 424d 599
[ Huch v. U.S
439
U.S. 1007 (1978) ][1007-Continued.]
(1976). Obviously we cannot review in this Court every school
desegregation case decided by a Court of Appeals, and particularly
where, as here, the Court of Appeals merely remands the case to the
District Court for further proceedings, there is a very natural
tendency to conclude that the decisions of the Court of Appeals are
not deserving of plenary review given the almost unmanageable
caseload of the Court. But the Court of Appeals from which these
cases come historically has had to decide more school desegregation
cases than any other Court of Appeals, and the interminable
pendency of school desegregation litigation resulting from remand
orders such as these is precisely what was condemned in Pasadena,
supra. I would therefore grant
Page 439 U.S.
1007 , 1008
certiorari to review the orders of the Court of Appeals
remanding these cases to their respective District Courts.
I
Nos. 77-1464 and 77-1467. South Park Independent School
District
The United States brought this action in 1970, and in that same
year the District Court adopted a school desegregation plan
submitted by the district, "with certain modifications designed to
increase the overall percentage of integration at particular
schools." App. to Pet. for Cert. in No. 77-1467, pp. C-1-C-2
(hereinafter cited as Pet.). Since no party sought to appeal, the
District Court's order became final. Almost six years later, the
United States filed a motion for "supplemental relief," seeking an
order requiring the district to "develop, adopt and implement a
comprehensive school desegregation plan." The Government's motion,
it should be noted, was filed after this Court's decision in
Pasadena, supra. The motion was supported largely by the
Government's assertion that during the 1975-1976 school term, 75.1%
of all black students in the system attended schools that were 92%
or more black, while 77.5% of all white students attended schools
that were 86% or more white. The School District filed a reply, a
group of parents successfully sought to intervene, and two separate
hearings on the Government's motion were held in the District
Court. The School District called witnesses in support of its
petition; the Government called none.
The court concluded from the evidence before it that the 1970
desegregation order had dissolved all vestiges of a dual system.
Noting that in each academic year since entry of the 1970 order
total student enrollment in the district had consistently declined,
while the percentage of black students enrolled in the district had
steadily increased, the District Court found that "[t]he
desegregative results differing from those anticipated in 1970 have
been the result of shifting residential
Page 439 U.S.
1007 , 1009
patterns, attendance of some district students at private
schools, and other factors beyond the control of defendant [school
district] . . . ." Pet. B-5. The court also found that the School
District had complied with the 1970 order in all respects and had
taken no action having a natural and foreseeable segregative effect
on schools in the district. Student class assignments in the
district had been made without regard to race or color, and no
state agency had attempted to alter the residential or demographic
patterns affecting the comprehensive neighborhood attendance plan
set forth in the 1970 order. Concluding that no further action on
its part was constitutionally required, the District Court denied
the motion for supplemental relief. [
Footnote 1]
The Court of Appeals believed that this case was governed by a
single passage from Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. at 26, removed from its context, describing the
duty of district courts to scrutinize initial desegregation plans
proposed by school boards for systems with a history of segregation
where such plans contemplate the continuance of some schools that
"are all or predominantly of one race." 2 I think that the Court of
Appeals erred in applying this particular passage from Swann to
a
Page 439 U.S.
1007 , 1010
school desegregation plan which had been accepted by all parties
at the time of its inception, and had been in effect for six years
before the Government decided to seek supplemental relief.
[
Footnote 3] In Swann itself
this Court acknowledged the reality that minority groups are often
found concentrated in particular parts of metropolitan areas.
Recognizing that demographic patterns can be affected by natural
human migration as well as by official discrimination, the Swann
court observed:
"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. . . . [I]n 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." Id., at 31-32.
This language was brought into sharper focus in Pasadena City
Board of Education v. Spangler,
427 U.S. 424 ( 1976).
Petitioner in Pasadena sought in 1974 to be relieved of a provision
of a 1970 desegregation order requiring that there be no majority
of any minority at any Pasadena school. Although the 1970 order had
established a racially neutral system of student assignment in
Pasadena, a "normal pattern of human migration" over the following
four years had caused some Pasadena schools to "sli[p] out of
compliance" with the no-majority-of-any-minority requirement. The
District Court
Page 439 U.S.
1007 , 1011
denied relief, apparently believing it had authority to impose
the requirement upon Pasadena schools regardless of what had caused
the post- 1971 change in their racial composition. We held that the
District Court lacked such authority:
"[T]he District Court was not entitled to require [Pasadena] 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." Id., at 436-437.
The thrust of Swann and Pasadena, when taken together, is that a
district court must heed the Swann mandate to closely scrutinize
predominantly one-race schools when approving an initial
desegregation plan in a school district with a history of de jure
segregation, but that the District Court has no obligation, indeed,
has no authority, to monitor the plan indefinitely to make sure
that the initial Swann requirements are maintained year after year
in spite of demographic changes which are in no way attributable to
the school board. A unanimous Court in Swann made clear that the
Constitution requires the dismantling of dual school systems, but
does not mandate racial balance in schools. This principle was
reaffirmed in Milliken v. Bradley,
418 U.S. 717, 740-741
(1974).
Here the Court of Appeals acknowledged that the District Court
had found "no basis for relief since the 1970 plan had desegregated
the school district thereby dissolving all vestiges of a dual
school system." United States v. South Park Independent School
Dist.,
566 F.2d
1221, 1224 (CA5 1978). After expressly observing that it did
not view the case as "a situation where a district court has
refused to rule," the
Page 439 U.S.
1007 , 1012
Court of Appeals nonetheless found the District Court's holding
that the School District was unitary "not detailed enough to show
us whether or not the school system meets [the] Swann requirement."
Id., at 1225. Accordingly, the case was remanded to the District
Court for "supplemental findings of fact."
I believe the Court of Appeals was wrong in its analysis of
Fourteenth Amendment law when it implied that Swann rather than
Pasadena would apply to a situation in which there had been in
effect for six years a school desegregation plan fully accepted by
all of the parties, including the United States. But more
importantly, this case has an unsettling precedential potential for
similar cases throughout the federal- court system. The Court of
Appeals' opinion gives no clue to the District Court as to where it
went wrong or how it can correct whatever mistake the Court of
Appeals believes that it made. So far as I can tell from the remand
order of the Court of Appeals, the District Court appears condemned
to a fate akin to that of Sisyphus, the mythical King of Corinth
who was sentenced by Zeus to an eternity in Hades trying "to roll a
rock uphill which forever rolled back upon him." 4 Such a result,
in my view, represents a departure "from the accepted and usual
course of judicial proceedings" sufficient to warrant a grant of
certiorari pursuant to our Rule 19(1)(b).
II
No. 78-222. Board of Education for the City of Valdosta v. United
States
In Board of Education for City of Valdosta v. United States,
576 F.2d
37 (C.A. [
Footnote 5]
1978), another panel of the Fifth Circuit relied upon the decision
in South Park as "the law of school desegregation as currently
understood in this Circuit." 576 F.2d, at 38 (emphasis added).
There the United States
Page 439 U.S.
1007 , 1013
moved in 1976 for supplemental relief to "correct" the racial
imbalance that had developed in certain Valdosta elementary schools
since entry of the District Court's desegregation plan in 1971.
After an evidentiary hearing, the District Court found that the
school board had followed the 1971 desegregation order to the
letter and that any racial imbalance in Valdosta schools "exists .
. . not because of any action or inaction on the part of the
Defendant Board of Education, but . . . simply because of a change
in housing patterns which has occurred since the date of the
Court's original order . . . ." App. to Pet. for Cert. in No.
78-222, p. 5c. Having found the Valdosta school system unitary, the
District Court denied the Government's motion for supplemental
relief.
On appeal the Court of Appeals rejected the contention that the
District Court's holding was compelled by Pasadena City Board of
Education v. Spangler. Relying on South Park for the proposition
that "the continued existence of a significant number of virtually
one-race schools is constitutionally suspect," the court held that
the "high incidence of racially identifiable schools belies the
school board's contention that Valdosta has achieved a unitary
school system." 576 F.2d, at 38. Accordingly, the case was
"remanded to the district court for the development of a plan . . .
designed to alleviate the incidence of virtually one-race
elementary schools." Ibid.
The Court of Appeals, having based its decision solely on
statistics indicating that there were five racially identifiable
elementary schools in Valdosta in 1976, undoubtedly acknowledged
but can hardly be said to have heeded this Court's observation in
Swann, 402 U.S., at 26, that "the existence of some small number of
one-race . . . schools within a district is not in and of itself
the mark of a system that still practices segregation by law."
Before a district court can move under the Constitution to
"correct" racially imbalanced schools, it must be shown that the
imbalance was in some
Page 439 U.S.
1007 , 1014
manner "caused by segregative actions chargeable to [school
authorities]." Pasadena City Board of Education v. Spangler, 427
U.S., at 435. There is no indication in the Court of Appeals'
opinion that the Government carried its burden of proving that the
racial mix of Valdosta's elementary schools was the product of
official discrimination, either present or past. Absent such a
showing in the record, the District Court's finding that Valdosta
had achieved a unitary school system cannot be held to be clearly
erroneous. See Dayton Board of Education v. Brinkman,
433 U.S. 406, 417-418
(1977). Accordingly, I dissent from the Court's denial of
certiorari in this case.
Footnotes
Footnote 1 The District
Court also based its denial of the motion for supplemental relief
on the Government's failure to comply with 20 U.S.C. 1758, which in
essence requires that local school authorities be given notice and
a reasonable opportunity to develop a voluntary remedial plan
before any existing court-approved desegregation plan may be
modified.
Footnote 2 " 'Where the
school authority's proposed plan for conversion from a dual to a
unitary system contemplates the continued existence of some schools
that are all or predominantly of one race, they have the burden of
showing that such school assignments are genuinely
nondiscriminatory. The court should scrutinize such schools, and
the burden upon the school authorities will be to satisfy the court
that their racial composition is not the result of present or past
discriminatory action on their part.' " United States v. South Park
Independent School Dist.,
566 F.2d
1221, 1225 ( C.A.5 1978), quoting Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S., at 26.
Footnote 3 Indeed, the
District Court noted that "[t]he Department of Health, Education
and Welfare, an agency of [the Government] charged with such
responsibility, has approved student integration procedures in
defendant district in each academic school year from entry of the
Court's order to the present, and prospectively, for academic
school year 1977-78." Pet. B- 5.
Footnote 4 E. Hamilton,
Mythology 439-440 (1945).
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