OCTOBER TERM, 1994
Syllabus
MISSOURI ET AL.
v. JENKINS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 93-1823. Argued January 11, 1995-Decided June 12, 1995*
In this 18-year-old school desegregation litigation, see,
e. g.,
Missouri v.
Jenkins, 495
U. S. 33, Missouri challenges the District Court's orders
requiring the State (1) to fund salary increases for virtually all
instructional and noninstructional staff within the Kansas City,
Missouri, School District (KCMSD), and (2) to continue to fund
remedial "quality education" programs because student achievement
levels were still "at or below national norms at many grade
levels." In affirming the orders, the Court of Appeals rejected the
State's argument that the salary increases exceeded the District
Court's remedial authority because they did not directly address
and relate to the State's constitutional violation: its operation,
prior to 1954, of a segregated school system within the KCMSD. The
Court of Appeals observed,
inter alia, that the increases
were designed to eliminate the vestiges of state-imposed
segregation by improving the "desegregative attractiveness" of the
district and by reversing "white flight" to the suburbs. The Court
of Appeals also approved the District Court's "implici[t]"
rejection of the State's request for a determination of partial
unitary status, under
Freeman v.
Pitts, 503 U. S. 467, 491, with
respect to the existing quality education programs.
Held:
1. Respondents' arguments that the State may no longer challenge
the District Court's desegregation remedy and that, in any event,
the propriety of the remedy is not before this Court are rejected.
Because, in
Jenkins, 495 U. S., at 37, certiorari was
granted to review the manner in which this remedy was funded, but
denied as to the State's challenge to review the remedial order's
scope, this Court resisted the State's efforts to challenge such
scope and, thus, neither approved nor disapproved the Court of
Appeals' conclusion that the remedy was proper, see,
e. g.,
id., at 53. Here, however, the State has challenged the District
Court's approval of across-the-board salary increases as beyond its
remedial authority. Because an analysis of the permissible scope of
that authority is necessary for a proper determination of whether
the
*Together with
Missouri et al. v.
Jenkins et al.,
also on certiorari to the same court (see this Court's Rule
12.2).
71
salary increases exceed such authority, a challenge to the scope
of the remedy is fairly included in the question presented for
review. See this Court's Rule 14.1 and,
e. g., Procunier v.
Navarette, 434
U. S. 555, 560,
2. The challenged orders are beyond the District Court's
remedial authority. Pp. 86-103.
(a) Although a District Court necessarily has discretion to
fashion a remedy for a school district unconstitutionally
segregated in law, such remedial power is not unlimited and may not
be extended to purposes beyond the elimination of racial
discrimination in public schools.
Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1,22-23. Proper
analysis of the orders challenged here must rest upon their serving
as proper means to the end of restoring the victims of
discriminatory conduct to the position they would have occupied
absent that conduct, see,
e. g., Milliken v.
Bradley,
418 U. S.
717,746, and their eventual restoration of state and local
authorities to the control of a school system that is operating in
compliance with the Constitution, see,
e. g., Freeman, 503
U. S., at 489. The factors that must inform a court's discretion in
ordering complete or partial relief from a desegregation decree
are: (1) whether there has been compliance with the decree in those
aspects of the school system where federal supervision is to be
withdrawn; (2) whether retention of judicial control is necessary
or practicable to achieve compliance in other facets of the system;
and (3) whether the 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 statutes and
constitutional provisions that were the predicate for judicial
intervention in the first place.
Id., at 491. The ultimate
inquiry is whether the constitutional violator has complied in good
faith with the decree since it was entered, and whether the
vestiges of discrimination have been eliminated to the extent
practicable.
Id., at 492. Pp.86-89.
(b) The order approving salary increases, which was grounded in
improving the "de segregative attractiveness" of the KCMSD, exceeds
the District Court's admittedly broad discretion. The order should
have sought to eliminate to the extent practicable the vestiges of
prior
de jure segregation within the KCMSD: a systemwide
reduction in student achievement and the existence of 25 racially
identifiable schools with a population of over 90% black students.
Instead, the District Court created a magnet district of the KCMSD
in order to attract nonminority students from the surrounding
suburban school districts and to redistribute them within the KCMSD
schools. This
interdistrict goal is beyond the scope of the
intradistrict violation identified by the District Court.
See,
e. g., Milliken, supra, at 746-747. Indeed, the
District
72
Syllabus
Court has found, and the Court of Appeals has affirmed, that the
case involved no interdistrict violation that would support
interdistrict relief. See,
e. g., Jenkins, supra, at 37, n.
3. The District Court has devised a remedy to accomplish indirectly
what it admittedly lacks the remedial authority to mandate
directly: the interdistrict transfer of students. See
Milliken, 418 U. S., at 745. The record does not support the
District Court's reliance on "white flight" as a justification for
a permissible expansion of its intradistrict remedial authority
through its pursuit of de segregative attractiveness. See,
e. g., id., at 746. Moreover, that pursuit cannot be
reconciled with this Court's decisions placing limitations on a
district court's remedial authority. See,
e. g., ibid. Nor
are there appropriate limits to the duration of the District
Court's involvement. See,
e. g., Freeman, supra, at 489.
Thus, the District Court's pursuit of the goal of "desegregative
attractiveness" results in too many imponderables and is too far
removed from the task of eliminating the racial identifiability of
the schools within the KCMSD. Pp. 89-100.
(c) Similarly, the order requiring the State to continue to fund
the quality education programs cannot be sustained. Whether or not
KCMSD student achievement levels are still "at or below national
norms at many grade levels" clearly is not the appropriate test for
deciding whether a previously segregated district has achieved
partially unitary status. The District Court should sharply limit,
if not dispense with, its reliance on this factor in reconsidering
its order, and should instead apply the three-part
Freeman
test. It should bear in mind that the State's role with respect to
the quality education programs has been limited to the funding, not
the implementation, of those programs; that many of the goals of
the quality education plan already have been attained; and that its
end purpose is not only to remedy the violation to the extent
practicable, but also to restore control to state and local
authorities. Pp. 100-102.
11 F.3d
755 (first case) and
13 F.3d
1170 (second case), reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,
post, p. 103, and THOMAS, J.,
post, p. 114, filed
concurring opinions. SOUTER, J., filed a dissenting opinion, in
which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p.
138. GINSBURG, J., filed a dissenting opinion,
post, p.
175.
John R. Munich, Chief Counsel for Litigation, argued the
cause for petitioners State of Missouri et al. With him on the
briefs were
Jeremiah W (Jay) Nixon, Attorney General,
James R. Layton, Michael J.
Fields, and
Bart A.
Matanic,
73
Assistant Attorneys General, Carter G. Phillips, Mark D. Hopson,
and Janet M. Letson.
Theodore M. Shaw argued the cause for respondents.
With him on the briefs for respondents Jenkins et al. were
Arthur A. Benson II, James S. Liebman, and Elaine R. Jones. Allen
R. Snyder, Patricia A. Brannan, John W Borkowski, Scott A. Raisher,
and Frederick O. Wickham filed a brief for respondents Kansas City,
Missouri, School District et al.
Deputy Solicitor General Bender argued the cause for the United
States as amicus curiae urging affirmance. With him on the brief
were Solicitor General Days, Assistant Attorney General Patrick,
Irving L. Gornstein, Dennis J. Dimsey, and Mark L. Gross. t
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
As this school desegregation litigation enters its 18th year, we
are called upon again to review the decisions of the lower courts.
In this case, the State of Missouri has challenged the District
Court's order of salary increases for virtually all instructional
and noninstructional staff within the Kansas City, Missouri, School
District (KCMSD) and the District Court's order requiring the State
to continue to fund remedial "quality education" programs because
student achievement levels were still "at or below national norms
at many grade levels."
tMark J.
Bredemeier and
Jerald L. Hill
filed a brief for Icelean Clark et al. as
amici curiae
urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Christopher A.
Hansen, Steven R. Shapiro, and
Helen Hershkoff; for the
Civic Council of Greater Kansas City by
David F.
Oliver; for the Lawyers' Committee for Civil Rights Under
Law by
Jack W Londen, Michael Cooper, and
Thomas J.
Henderson; and for James D. Anderson et al. by
Kevin
J.
Hamilton.
William L. Taylor and
Dianne M. Pich filed a brief
for the National Urban League et al. as
amici curiae.
74
I
A general overview of this litigation is necessary for proper
resolution of the issues upon which we granted certiorari. This
case has been before the same United States District Judge since
1977.
Missouri v.
Jenkins, 491 U. S. 274, 276 (1989)
(Jenkins I). In that year, the KCMSD, the school board, and
the children of two school board members brought suit against the
State and other defendants. Plaintiffs alleged that the State, the
surrounding suburban school districts (SSD's), and various federal
agencies had caused and perpetuated a system of racial segregation
in the schools of the Kansas City metropolitan area. The District
Court realigned the KCMSD as a nominal defendant and certified as a
class, present and future KCMSD students. The KCMSD brought a
cross-claim against the State for its failure to eliminate the
vestiges of its prior dual school system.
After a trial that lasted 71/2 months, the District Court
dismissed the case against the federal defendants and the SSD's,
but determined that the State and the KCMSD were liable for an
intradistrict violation, i.
e., they had operated a
segregated school system within the KCMSD.
Jenkins v.
Missouri, 593 F. Supp. 1485 (WD Mo. 1984). The District
Court determined that prior to 1954 "Missouri mandated segregated
schools for black and white children."
Id., at 1490.
Furthermore, the KCMSD and the State had failed in their
affirmative obligations to eliminate the vestiges of the State's
dual school system within the KCMSD.
Id., at 1504.
In June 1985, the District Court issued its first remedial order
and established as its goal the "elimination of all vestiges of
state imposed segregation."
Jenkins v.
Missouri, 639
F. Supp. 19, 23 (WD Mo. 1985). The District Court determined that
"[s]egregation ha[d] caused a system wide
reduction in
student achievement in the schools of the KCMSD."
Id., at
24. The District Court made no particularized findings regarding
the extent that student achieve-
75
ment had been reduced or what portion of that reduction was
attributable to segregation. The District Court also identified 25
schools within the KCMSD that had enrollments of 90% or more black
students.
Id., at 36.
The District Court, pursuant to plans submitted by the KCMSD and
the State, ordered a wide range of quality education programs for
all students attending the KCMSD. First, the District Court ordered
that the KCMSD be restored to an AAA classification, the highest
classification awarded by the State Board of Education.
Id.,
at 26. Second, it ordered that the number of students per class be
reduced so that the student-to-teacher ratio was below the level
required for AAA standing.
Id., at 28-29. The District Court
justified its reduction in class size as
"an essential part of any plan to remedy the vestiges of
segregation in the KCMSD. Reducing class size will serve to remedy
the vestiges of past segregation by increasing individual attention
and instruction, as well as increasing the potential for de
segregative educational experiences for KCMSD students by
maintaining and attracting non-minority enrollment." Id., at
29.
The District Court also ordered programs to expand educational
opportunities for all KCMSD students: full-day kindergarten;
expanded summer school; before- and after-school tutoring; and an
early childhood development program.
Id., at 30-33. Finally,
the District Court implemented a statefunded "effective schools"
program that consisted of substantial yearly cash grants to each of
the schools within the KCMSD.
Id., at 33-34. Under the
"effective schools" program, the State was required to fund
programs at both the 25 racially identifiable schools as well as
the 43 other schools within the KCMSD.
Id., at 33.
The KCMSD was awarded an AAA rating in the 19871988 school year,
and there is no dispute that since that time it has "'maintained
and greatly exceeded AAA require-
76
ments.'"
19 F.3d
393, 401 (CA8 1994) (Beam, J., dissenting from denial of
rehearing en bane). The total cost for these quality education
programs has exceeded $220 million. Missouri Department of
Elementary and Secondary Education, KCMSD Total Desegregation
Program Expenditures (Sept. 30, 1994) (Desegregation
Expenditures).
The District Court also set out to desegregate the KCMSD but
believed that "[t]o accomplish desegregation within the boundary
lines of a school district whose enrollment remains 68.3% black is
a difficult task." 639 F. Supp., at 38. Because it had found no
interdistrict violation, the District Court could not order
mandatory interdistrict redistribution of students between the
KCMSD and the surrounding SSD's.
Ibid.; see also
Milliken v.
Bradley, 418 U. S. 717 (1974)
(Milliken I). The District Court refused to order additional
mandatory student reassignments because they would "increase the
instability of the KCMSD and reduce the potential for
desegregation." 639 F. Supp., at 38. Relying on favorable precedent
from the Eighth Circuit, the District Court determined that
"[a]chievement of AAA status, improvement of the quality of
education being offered at the KCMSD schools, magnet schools, as
well as other components of this desegregation plan can serve to
maintain and hopefully attract non-minority student enrollment."
Ibid.
In November 1986, the District Court approved a comprehensive
magnet school and capital improvements plan and held the State and
the KCMSD jointly and severally liable for its funding. 1 App.
130-193. Under the District Court's plan, every senior high school,
every middle school, and one-half of the elementary schools were
converted into magnet schools.1
Id., at 131. The District
Court adopted the
1" 'Magnet schools,' as generally understood, are public schools
of voluntary enrollment designed to promote integration by drawing
students away from their neighborhoods and private schools through
distinctive curricula and high quality."
Missouri v.
Jenkins, 495 U.
S. 33, 40, n. 6 (1990).
77
magnet-school program to "provide a greater educational
opportunity to all KCMSD students," id., at 131-132, and because it
believed "that the proposed magnet plan [was] so attractive that it
would draw non-minority students from the private schools who have
abandoned or avoided the KCMSD, and draw in additional non-minority
students from the suburbs."
Id., at 132. The District Court
felt that "[t]he long-term benefit of all KCMSD students of a
greater educational opportunity in an integrated environment is
worthy of such an investment."
Id., at 133. Since its
inception, the magnet-school program has operated at a cost,
including magnet transportation, in excess of $448 million. See
Desegregation Expenditures. In April 1993, the District Court
considered, but ultimately rejected, the plaintiffs' and the
KCMSD's proposal seeking approval of a longrange magnet renewal
program that included a 10-year budget of well over $500 million,
funded by the State and the KCMSD on a joint-and-several basis.
App. to Pet. for Cert. A-123.
In June 1985, the District Court ordered substantial capital
improvements to combat the deterioration of the KCMSD's facilities.
In formulating its capital-improvements plan, the District Court
dismissed as "irrelevant" the "State's argument that the present
condition of the facilities [was] not traceable to unlawful
segregation." 639 F. Supp., at 40. Instead, the District Court
focused on its responsibility to "remed[y] the vestiges of
segregation" and to "implemen[t] a desegregation plan which w[ould]
maintain and attract non-minority enrollment."
Id., at 41.
The initial phase of the capital-improvements plan cost $37
million.
Ibid. The District Court also required the KCMSD to
present further capital-improvements proposals "in order to bring
its facilities to a point comparable with the facilities in
neighboring suburban school districts."
Ibid. In November
1986, the District Court approved further capital improvements in
order to remove the vestiges of racial segre-
78
gation and "to ... attract non-minority students back to the
KCMSD." App. to Pet. for Cert. A-133 to A-134.
In September 1987, the District Court adopted, for the most
part, KCMSD's long-range capital-improvements plan at a cost in
excess of $187 million.
Jenkins v.
Missouri, 672 F.
Supp. 400, 408 (WD Mo. 1987). The plan called for the renovation of
approximately 55 schools, the closure of 18 facilities, and the
construction of 17 new schools.
Id., at 405. The District
Court rejected what it referred to as the " 'patch and repair'
approach proposed by the State" because it "would not achieve
suburban comparability or the visual attractiveness sought by the
Court as it would result in floor coverings with unsightly sections
of mismatched carpeting and tile, and individual walls possessing
different shades of paint."
Id., at 404. The District Court
reasoned that "if the KCMSD schools underwent the limited
renovation proposed by the State, the schools would continue to be
unattractive and substandard, and would certainly serve as a
deterrent to parents considering enrolling their children in KCMSD
schools."
Id., at 405. As of 1990, the District Court had
ordered $260 million in capital improvements.
Missouri v.
Jenkins, 495 U.
S. 33, 61 (1990)
(Jenkins II) (KENNEDY, J., concurring
in part and concurring in judgment). Since then, the total cost of
capital improvements ordered has soared to over $540 million.
As part of its desegregation plan, the District Court has
ordered salary assistance to the KCMSD. In 1987, the District Court
initially ordered salary assistance only for teachers within the
KCMSD. Since that time, however, the District Court has ordered
salary assistance to all but three of the approximately 5,000 KCMSD
employees. The total cost of this component of the desegregation
remedy since 1987 is over $200 million. See Desegregation
Expenditures.
The District Court's desegregation plan has been described as
the most ambitious and expensive remedial program in the history of
school desegregation. 19 F. 3d, at 397
79
(Beam, J., dissenting from denial of rehearing en banc). The
annual cost per pupil at the KCMSD far exceeds that of the
neighboring SSD's or of any school district in Missouri.
Nevertheless, the KCMSD, which has pursued a "friendly adversary"
relationship with the plaintiffs, has continued to propose ever
more expensive programs.2 As a result, the desegregation costs have
escalated and now are approaching an annual cost of $200 million.
These massive expenditures have financed
"high schools in which every classroom will have air
conditioning, an alarm system, and 15 microcomputers; a
2,000-square-foot planetarium; green houses and vivariums; a
25-acre farm with an air-conditioned meeting room for 104 people; a
Model United Nations wired for language translation; broadcast
capable radio and television studios with an editing and animation
lab; a temperature controlled art gallery; movie editing and
screening rooms; a 3,500-square-foot dust-free diesel mechanics
room; 1,875-square-foot elementary school animal rooms for use in a
zoo project; swimming pools; and numerous other facilities."
Jenkins II, 495 U. S., at 77 (KENNEDY, J., concurring in
part and concurring in judgment).
Not surprisingly, the cost of this remedial plan has "far
exceeded KCMSD's budget, or for that matter, its authority to tax."
Id., at 60. The State, through the operation of
jointand-several liability, has borne the brunt of these costs. The
District Court candidly has acknowledged that it has "allowed the
District planners to dream" and "provided the
2 In April 1993, 16 years after this litigation began, the
District Court acknowledged that the KCMSD and the plaintiffs had
"barely addressed ... how the KCMSD proposes to ultimately fund the
school system developed under the desegregation plan." App. to Pet.
for Cert. A-123. In the context of a proposal to extend funding of
the magnet-school program for 10 additional years at a cost of over
$500 million, the District Court noted that "[t]he District's
proposals do not include a viable method of financing any of the
programs."
Id., at A-140.
80
mechanism for th[ose] dreams to be realized." App. to Pet. for
Cert. A-133. In short, the District Court "has gone to great
lengths to provide KCMSD with facilities and opportunities not
available anywhere else in the country."
Id., at A-1l5.
II
With this background, we turn to the present controversy.
First, the State has challenged the District Court's requirement
that it fund salary increases for KCMSD instructional and
noninstructional staff.
Id., at A-76 to A-93 (District
Court's Order of June 15, 1992); id., at A-94 to A-109 (District
Court's Order of June 30, 1993); id., at A-110 to A-121 (District
Court's Order of July 30, 1993). The State claimed that funding for
salaries was beyond the scope of the District Court's remedial
authority.
Id., at A-86. Second, the State has challenged
the District Court's order requiring it to continue to fund the
remedial quality education programs for the 1992-1993 school year.
Id., at A-69 to A-75 (District Court's Order of June 17,
1992). The State contended that under
Freeman v.
Pitts, 503 U.
S. 467 (1992), it had achieved partial unitary status with
respect to the quality education programs already in place. As a
result, the State argued that the District Court should have
relieved it of responsibility for funding those programs.
The District Court rejected the State's arguments. It first
determined that the salary increases were warranted because "[h]igh
quality personnel are necessary not only to implement specialized
desegregation programs intended to 'improve educational
opportunities and reduce racial isolation', but also to 'ensure
that there is no diminution in the quality of its regular academic
program.'" App. to Pet. for Cert. A-87 (citations omitted). Its
"ruling [was] grounded in remedying the vestiges of segregation by
improving the desegregative attractiveness of the KCMSD."
Id., at A-90. The District Court did not address the State's
Freeman arguments; nevertheless, it ordered the State to
continue to
81
fund the quality education programs for the 1992-1993 school
year. See App. to Pet. for Cert. A-70.
The Court of Appeals for the Eighth Circuit affirmed.
11 F.3d
755 (1993). It rejected the State's argument that the salary
increases did not directly address and relate to the State's
constitutional violation and that "low teacher salaries d[id] not
flow from any earlier constitutional violations by the State."
Id., at 767. In doing so, it observed that "[i]n addition to
compensating the victims, the remedy in this case was also designed
to reverse white flight by offering superior educational
opportunities."
Ibid.; see also
13 F.3d
1170, 1172 (1993) (affirming the District Court's June 30,
1993, and July 30, 1993, orders).
The Court of Appeals concluded that the District Court
implicitly had rejected the State's
Freeman arguments in
spite of the fact that it had failed "to articulate ... even a
conclusory rejection" of them. 11 F. 3d, at 765. It looked to the
District Court's comments from the bench and its later orders to
"illuminate the June 1992 order."
Id., at 761. The Court of
Appeals relied on statements made by the District Court during a
May 28, 1992, hearing:
"The Court's goal was to integrate the Kansas City, Missouri,
School District to the maximum degree possible, and all
these other matters were elements to be used to try to integrate
the Kansas City, Missouri, schools so the goal is integration.
That's the goal. And a high standard of quality education. The
magnet schools, the summer school program and all these programs
are tied to that goal, and until such time as that goal has been
reached, then we have not reached the goal. ... The goal is to
integrate the Kansas City, Missouri, School district. So I think we
are wasting our time." 2 App. 482 (emphasis added).
See 11 F. 3d, at 761. Apparently, the Court of Appeals
extrapolated from the findings regarding the magnet-school
82
program and later orders and imported those findings wholesale
to reject the State's request for a determination of partial
unitary status as to the quality education programs. See id., at
761-762. It found significant the District Court's determination
that although "there had been a trend of improvement in academic
achievement, ... the school district was far from reaching its
maximum potential because KCMSD is still at or below national norms
at many grade levels."
Ibid. It went on to say that with
respect to quality education, "implementation of programs in and of
itself is not sufficient. The test, after all, is whether the
vestiges of segregation, here the systemwide reduction in student
achievement, have been eliminated to the greatest extent
practicable. The success of quality of education programs must be
measured by their effect on the students, particularly those who
have been the victims of segregation."
Id., at 766.
The Court of Appeals denied rehearing en bane, with five judges
dissenting. 19 F. 3d, at 395. The dissent first examined the salary
increases ordered by the District Court and characterized "the
current effort by the KCMSD and the American Federation of Teachers
... aided by the plaintiffs, to bypass the collective bargaining
process" as "uncalled for" and "probably not an exercise reasonably
related to the constitutional violations found by the court."
Id., at 399. The dissent also "agree[d] with the [S]tate
that logic d[id] not directly relate the pay of parking lot
attendants, trash haulers and food handlers ... to any facet or
phase of the desegregation plan or to the constitutional
violations."
Ibid.
Second, the dissent believed that in evaluating whether the
KCMSD had achieved partial unitary status in its quality education
programs, the District Court and the panel had
"misrea[d] Freeman and create[d] a hurdle to the
withdrawal of judicial intervention from public education that has
no support in the law. The district court has,
83
with the approbation of the panel, imbedded a student
achievement goal measured by annual standardized tests into its
test of whether the KCMSD has built a high-quality educational
system sufficient to remedy past discrimination. The Constitution
requires no such standard." Id., at 400.
The dissent noted that "KCMSD students have in place a system
that offers more educational opportunity than anywhere in America,"
id., at 403, but that the District Court was "'not satisfied that
the District has reached anywhere close to its
maximum
potential because the District is still at or below national
norms at many grade levels,'" ibid. (emphasis added). The dissent
concluded that this case, "as it now proceeds, involves an exercise
in pedagogical sociology, not constitutional adjudication."
Id., at 404.
Because of the importance of the issues, we granted certiorari
to consider the following: (1) whether the District Court exceeded
its constitutional authority when it granted salary increases to
virtually all instructional and noninstructional employees of the
KCMSD, and (2) whether the District Court properly relied upon the
fact that student achievement test scores had failed to rise to
some unspecified level when it declined to find that the State had
achieved partial unitary status as to the quality education
programs. 512 U. S. 1287 (1994).
III
Respondents argue that the State may no longer challenge the
District Court's remedy, and in any event, the propriety of the
remedy is not before the Court. Brief for Respondents KCMSD et al.
40-49; Brief for Respondents Jenkins et al. 23. We disagree on both
counts. In
Jenkins II, we granted certiorari to review the
manner in which the District Court had funded this desegregation
remedy. 495 U. S., at 37. Because we had denied certiorari on the
State's
84
challenge to review the scope of the remedial order, we resisted
the State's efforts to challenge the scope of the remedy.
Id., at 53; cf.
id., at 80 (KENNEDY, J., concurring
in part and concurring in judgment). Thus, we neither "approv[ed]"
nor "disapprov[ed] the Court of Appeals' conclusion that the
District Court's remedy was proper."
Id., at 53.
Here, however, the State has challenged the District Court's
approval of across-the-board salary increases for instructional and
noninstructional employees as an action beyond its remedial
authority. Pet. for Cert. i.3 An analysis of the permissible scope
of the District Court's remedial authority is necessary for a
proper determination of whether the order of salary increases is
beyond the District Court's remedial authority, see
Milliken
I, 418 U. S., at 738-740,745, and thus, it is an issue
subsidiary to our ultimate inquiry. Cf.
Yee v.
Escondido, 503
U. S. 519, 537 (1992). Given that the District Court's basis
for its salary order was grounded in "improving the desegregative
attractiveness of the KCMSD," App. to Pet. for Cert. A-90, we must
consider the propriety of that reliance in order to resolve
properly the State's challenge to that order. We conclude that a
challenge to the scope of the District Court's remedy is fairly
included in the question presented. See this Court's Rule
14.1;
Procunier v.
Navarette, 434 U. S. 555, 560, n. 6
(1978) ("Since consideration of these issues is essential to
analysis of the Court of Appeals' [decision] we shall also treat
these questions as subsidiary issues 'fairly comprised' by the
question presented"); see also
United States v.
Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980) (opinion of
Stewart, J.) (Where
3 "Whether a federal court order granting salary increases to
virtually every employee of a school district-including
non-instructional personnel-as part of a school desegregation
remedy conflicts with applicable decisions of this court which
require that remedial components must directly address and relate
to the constitutional violation and be tailored to cure the
condition that offends the Constitution?" Pet. for Cert. i.
85
the determination of a question "is essential to the correct
disposition of the other issues in the case, we shall treat it as
'fairly comprised' by the questions presented in the petition for
certiorari"); cf.
Yee, supra, at 536-537.
JUSTICE SOUTER argues that our decision to review the scope of
the District Court's remedial authority is both unfair and
imprudent.
Post, at 147. He claims that factors such as our
failure to grant certiorari on the State's challenge to the
District Court's remedial authority in 1988 "lulled [respondents]
into addressing the case without sufficient attention to the
foundational issue, and their lack of attention has now infected
the Court's decision."
Post, at 139. JUSTICE SOUTER
concludes that we have "decide[d] the issue without any warning to
respondents."
Post, at 147. These arguments are
incorrect.
Of course, "[t]he denial of a writ of certiorari imports no
expression of opinion upon the merits of the case, as the bar has
been told many times."
United States v.
Carver, 260
U. S. 482, 490 (1923).
A fortiori, far from lulling
respondents into a false sense of security, our previous decision
in
Jenkins v.
Missouri put respondents on notice that
the Court had not affirmed the validity of the District Court's
remedy, 495 U. S., at 53, and that at least four Justices of the
Court questioned that remedy, id., at 75-80 (KENNEDY, J.,
concurring in part and concurring in judgment).
With respect to the specific orders at issue here, the State has
once again challenged the scope of the District Court's remedial
authority. The District Court was aware of this fact. See App. to
Pet. for Cert. A-86 ("The State claims that the Court should not
approve desegregation funding for salaries because such funding
would be beyond the scope of the Court's remedial authority")
(District Court's June 25, 1992, order); id., at A-97 ("The State
has argued repeatedly and currently on appeal that the salary
component is not a valid component of the desegregation remedy")
(District
86
Court's June 30, 1993, order). The Court of Appeals also
understood that the State had renewed this challenge. See 11 F. 3d,
at 766 ("The State argues first that the salary increase remedy
sought exceeded that necessary to remedy the constitutional
violations, and alternatively, that if the district court had
lawful authority to impose the increases, it abused its discretion
in doing so"); id., at 767 ("The State's legal argument is that the
district court should have denied the salary increase funding
because it is contrary to
Milliken [v.
Bradley,
433 U. S. 267
(1977),] and
Swann [v.
CharlotteMecklenburg Bd. of
Ed., 402 U. S.
1 (1971),] in that it does not directly address and relate to
the State's constitutional violation"); 13 F. 3d, at 1172 ("We
reject the State's argument that the salary order is contrary to
Milliken II and
Swann"). The State renewed this same
challenge in its petition for certiorari, Pet. for Cert. i, and
argued here that the District Court's salary orders were beyond the
scope of its remedial authority. Brief for Petitioners 27-32; Reply
Brief for Petitioners 6-12. In the 100 pages of briefing provided
by respondents, they have argued that the State's challenge to the
scope of the District Court's remedial authority is not fairly
presented
and is meritless. See Brief for Respondents KCMSD
et al. 40-49; Brief for Respondents Jenkins et al. 2-21, 44-49; cf.
Reply Brief for Petitioners 2 ("[R]espondents ... urge the Court to
dismiss the writ as improvidently granted. This is not surprising;
respondents cannot defend the excesses of the courts below").
In short, the State has challenged the scope of the District
Court's remedial authority. The District Court, the Court of
Appeals, and respondents have recognized this to be the case.
Contrary to JUSTICE SOUTER'S arguments, there is no unfairness or
imprudence in deciding issues that have been passed upon below, are
properly before us, and have been briefed by the parties. We turn
to the questions presented.
Almost 25 years ago, in
Swann v.
Charlotte-Mecklenburg
Bd. of Ed., 402 U.
S. 1 (1971), we dealt with the authority of a district court to
fashion remedies for a school district that
87
had been segregated in law in violation of the Equal Protection
Clause of the Fourteenth Amendment. Although recognizing the
discretion that must necessarily adhere in a district court in
fashioning a remedy, we also recognized the limits on such remedial
power:
"[E]limination of racial discrimination in public schools is a
large task and one that should not be retarded by efforts to
achieve broader purposes lying beyond the jurisdiction of the
school authorities. One vehicle can carry only a limited amount of
baggage. It would not serve the important objective of Brown
[v. Board of Education, 347 U. S. 483 (1954),] to
seek to use school desegregation cases for purposes beyond their
scope, although desegregation of schools ultimately will have
impact on other forms of discrimination." Id., at 2223.
Three years later, in
Milliken I, 418 U. S. 717 (1974), we
held that a District Court had exceeded its authority in fashioning
interdistrict relief where the surrounding school districts had not
themselves been guilty of any constitutional violation.
Id.,
at 746-747. We said that a desegregation remedy "is necessarily
designed, as all remedies are, to restore the victims of
discriminatory conduct to the position they would have occupied in
the absence of such conduct."
Id., at 746. "[W]ithout an
interdistrict violation and interdistrict effect, there is no
constitutional wrong calling for an interdistrict remedy."
Id., at 745. We also rejected "[t]he suggestion ... that
schools which have a majority of Negro students are not
'desegregated,' whatever the makeup of the school district's
population and however neutrally the district lines have been drawn
and administered."
Id., at 747, n. 22; see also
Freeman, 503 U. S., at 474 ("[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").
88
Three years later, in
Milliken v.
Bradley,
433 U. S. 267
(1977)
(Milliken II), we articulated a three-part framework
derived from our prior cases to guide district courts in the
exercise of their remedial authority.
"In the first place, like other equitable remedies, the nature
of the desegregation remedy is to be determined by the nature and
scope of the constitutional violation. Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S., at 16.
The remedy must therefore be related to 'the condition
alleged to offend the Constitution .... ' Milliken I, 418 U.
S., at 738. Second, the decree must indeed be remedial in
nature, that is, it must be designed as nearly as possible 'to
restore the victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct.' Id., at
746. Third, the 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." Id.,
at 280-281 (footnotes omitted).
We added that the "principle that the nature and scope of the
remedy are to be determined by the violation means simply that
federal-court decrees must directly address and relate to the
constitutional violation itself."
Id., at 281-282. In
applying these principles, we have identified "student assignments,
... 'faculty, staff, transportation, extracurricular activities and
facilities'" as the most important indicia of a racially segregated
school system.
Board of Ed. of Oklahoma City Public Schools
v.
Dowell, 498
U. S. 237, 250 (1991) (quoting
Green v.
School Bd. of
New Kent Cty., 391 U. S. 430, 435
(1968)).
Because "federal supervision of local school systems was
intended as a temporary measure to remedy past discrimination,"
Dowell, supra, at 247, we also have considered the showing
that must be made by a school district operating under a
desegregation order for complete or partial relief from that order.
In
Freeman, we stated that
89
"[a]mong the factors which must inform the sound discretion of
the court in ordering partial withdrawal are the following: [1]
whether there has been full and satisfactory compliance with the
decree in those aspects of the system where supervision is to be
withdrawn; [2] whether retention of judicial control is necessary
or practicable to achieve compliance with the decree in other
facets of the school system; and [3] 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 courts' decree and to those provisions of the law and the
Constitution that were the predicate for judicial intervention in
the first instance." 503 U. S., at 491.
The ultimate inquiry is "'whether the [constitutional violator]
ha[s] complied in good faith with the desegregation decree since it
was entered, and whether the vestiges of past discrimination ha[ve]
been eliminated to the extent practicable.'"
Id., at 492
(quoting
Dowell, supra, at 249-250).
Proper analysis of the District Court's orders challenged here,
then, must rest upon their serving as proper means to the end of
restoring the victims of discriminatory conduct to the position
they would have occupied in the absence of that conduct and their
eventual restoration of "state and local authorities to the control
of a school system that is operating in compliance with the
Constitution." 503 U. S., at 489. We turn to that analysis.
The State argues that the order approving salary increases is
beyond the District Court's authority because it was crafted to
serve an "interdistrict goal," in spite of the fact that the
constitutional violation in this case is "intradistrict" in nature.
Brief for Petitioners 19. "[T]he nature of the desegregation remedy
is to be determined by the nature and scope of the constitutional
violation."
Milliken II, supra, at 280;
Pasadena City Bd.
of Ed. v.
Spangler, 427 U. S. 424, 434 (1976)
(" '[T]here are limits' beyond which a
90
court may not go in seeking to dismantle a dual school system").
The proper response to an intradistrict violation is an
intradistrict remedy, see
Milliken I, supra, at 746-747;
Milliken II, supra, at 280, that serves to eliminate the
racial identity of the schools within the affected school district
by eliminating, as far as practicable, the vestiges of
de
jure segregation in all facets of their operations. See
Dowell, supra, at 250; see also
Swann, 402 U. S., at
18-19;
Green, supra, at 435.
Here, the District Court has found, and the Court of Appeals has
affirmed, that this case involved no interdistrict constitutional
violation that would support interdistrict relief.
Jenkins
II, 495 U. S., at 37, n. 3 ("The District Court also found that
none of the alleged discriminatory actions had resulted in
lingering interdistrict effects and so dismissed the suburban
school districts and denied interdistrict relief"); id., at 76
(KENNEDY, J., concurring in part and concurring in judgment)
("[T]here was no interdistrict constitutional violation that would
support mandatory interdistrict relief").4 Thus, the proper
response by the District Court should have been to eliminate to the
extent practicable the vestiges of prior
de jure segregation
within the KCMSD: a systemwide reduction in student achievement and
the existence of 25 racially identifiable schools with a population
of over 90% black students. 639 F. Supp., at 24, 36.
4 See also
Jenkins v.
Missouri, 931 F.2d
1273, 1274
(CA8 1991) ("[T]he district court in
September 1984 held the State defendants and the KCMSD liable for
intradistrict segregation");
Jenkins v.
Missouri, 931
F. 2d 470, 475
(CA8 1991) ("In a June 5, 1984, order the
district court rejected claims of interdistrict violations");
Jenkins v.
Missouri, 838 F. 2d
260,264 (CA8
1988) ("In this case, the plaintiffs made unsuccessful claims
against the State as well as the suburban, federal, and Kansas
defendants for interdistrict relief. They also made successful
intradistrict claims against the State and KCMSD");
Jenkins
v.
Missouri, 807 F.2d
657, 669
670 (CA8 1986) (en banc) ("[T]he argument that
KCMSD officially sanctioned suburban flight looks first to KCMSD's
violation which the district court clearly found to be only
intradistrict in nature").
91
The District Court and Court of Appeals, however, have felt that
because the KCMSD's enrollment remained 68.3% black, a purely
intradistrict remedy would be insufficient.
Id., at 38;
Jenkins v.
Missouri, 855 F.2d
1296, 1302 (CA8
1988) ("[Vloluntary interdistrict
remedies may be used to make meaningful integration possible in a
predominantly minority district"). But, as noted in
Milliken
I, 418 U. S.
717 (1974), we have rejected the suggestion "that schools which
have a majority of Negro students are not 'desegregated' whatever
the racial makeup of the school district's population and however
neutrally the district lines have been drawn and administered."
Id., at 747, n. 22; see
Milliken II, 433 U. S., at
280, n. 14 ("[T]he Court has consistently held that the
Constitution is not violated by racial imbalance in the schools,
without more");
Spangler, supra, at 434.5
Instead of seeking to remove the racial identity of the various
schools within the KCMSD, the District Court has set out on a
program to create a school district that was equal to or superior
to the surrounding SSD's. Its remedy has focused on "de segregative
attractiveness," coupled with "suburban comparability." Examination
of the District Court's reliance on "de segregative attractiveness"
and "suburban comparability" is instructive for our ultimate
resolution of the salary-order issue.
The purpose of de segregative attractiveness has been not only
to remedy the systemwide reduction in student achievement, but also
to attract nonminority students not presently enrolled in the
KCMSD. This remedy has included an elaborate program of capital
improvements, course enrichment,
5 See also
Green v.
School Ed. of New Kent Cty.,
391 U. S. 430,
432 (1968) (approving a desegregation plan which had a racial
composition of 57% black and 43% white);
Wright v.
Council of Emporia, 407 U. S. 451, 457 (1972)
(approving a desegregation plan which had a racial composition of
66% black and 34% white);
United States v.
Scotland Neck
City Ed. of Ed.,
407 U. S. 484, 491, n. 5
(1972) (approving implicitly a desegregation plan which had a
racial composition of 77% black and 22% white).
92
and extracurricular enhancement not simply in the formerly
identifiable black schools, but in schools throughout the district.
The District Court's remedial orders have converted every senior
high school, every middle school, and one-half of the elementary
schools in the KCMSD into "magnet" schools. The District Court's
remedial order has all but made the KCMSD itself into a magnet
district.
We previously have approved of intradistrict desegregation
remedies involving magnet schools. See,
e. g., Milliken II,
supra, at 272. Magnet schools have the advantage of encouraging
voluntary movement of students within a school district in a
pattern that aids desegregation on a voluntary basis, without
requiring extensive busing and redrawing of district boundary
lines. Cf.
Jenkins II, supra, at 59-60 (KENNEDY, J.,
concurring in part and concurring in judgment) (citing
Milliken
II, supra, at 272). As a component in an intradistrict remedy,
magnet schools also are attractive because they promote
desegregation while limiting the withdrawal of white student
enrollment that may result from mandatory student reassignment. See
639 F. Supp., at 37; cf.
United States v.
Scotland Neck
City Bd. of Ed., 407 U. S. 484, 491
(1972).
The District Court's remedial plan in this case, however, is not
designed solely to redistribute the students within the KCMSD in
order to eliminate racially identifiable schools within the KCMSD.
Instead, its purpose is to attract nonminority students from
outside the KCMSD schools. But this interdistrict goal is beyond
the scope of the intradistrict violation identified by the District
Court. In effect, the District Court has devised a remedy to
accomplish indirectly what it admittedly lacks the remedial
authority to mandate directly: the interdistrict transfer of
students. 639 F. Supp., at 38 (" '[B]ecause of restrictions on this
Court's remedial powers in restructuring the operations of local
and state government entities,' any
mandatory plan which
would go beyond the boundary lines of KCMSD goes far beyond
93
the nature and extent of the constitutional violation [that]
this Court found existed").
In
Milliken I we determined that a desegregation remedy
that would require mandatory interdistrict reassignment of students
throughout the Detroit metropolitan area was an impermissible
interdistrict response to the intradistrict violation identified.
418 U. S., at 745. In that case, the lower courts had ordered an
interdistrict remedy because "'any less comprehensive a solution
than a metropolitan area plan would result in an all black school
system immediately surrounded by practically all white suburban
school systems, with an overwhelmingly white majority population in
the total metropolitan area.'"
Id., at 735. We held that
before a district court could order an interdistrict remedy, there
must be a showing that "racially discriminatory acts of the state
or local school districts, or of a single school district have been
a substantial cause of interdistrict segregation."
Id., at
745. Because the record "contain[ed] evidence of
de jure
segregated conditions only in the Detroit Schools" and there had
been "no showing of significant violation by the 53 outlying school
districts and no evidence of interdistrict violation or effect," we
reversed the District Court's grant of interdistrict relief.
Ibid.
Justice Stewart provided the Court's fifth vote and wrote
separately to underscore his understanding of the decision. In
describing the requirements for imposing an "interdistrict" remedy,
Justice Stewart stated: "Were it to be shown, for example, that
state officials had contributed to the separation of the races by
drawing or redrawing school district lines; by transfer of school
units between districts; or by purposeful, racially discriminatory
use of state housing or zoning laws, then a decree calling for the
transfer of pupils across district lines or for restructuring of
district lines might well be appropriate. In this case, however, no
such interdistrict violation was shown."
Id., at 755
(concurring opinion) (citations omitted). Justice Stewart concluded
that the Court
94
properly rejected the District Court's interdistrict remedy
because "[t]here were no findings that the differing racial
composition between schools in the city and in the outlying suburbs
was caused by official activity of any sort."
Id., at
757.
What we meant in
Milliken I by an interdistrict violation
was a violation that caused segregation between adjoining
districts. Nothing in
Milliken I suggests that the District
Court in that case could have circumvented the limits on its
remedial authority by requiring the State of Michigan, a
constitutional violator, to implement a magnet program designed to
achieve the same interdistrict transfer of students that we held
was beyond its remedial authority. Here, the District Court has
done just that: created a magnet district of the KCMSD in order to
serve the interdistrict goal of attracting nonminority students
from the surrounding SSD's and redistributing them within the
KCMSD. The District Court's pursuit of "de segregative
attractiveness" is beyond the scope of its broad remedial
authority. See
Milliken II, 433 U. S., at 280.
Respondents argue that the District Court's reliance upon
desegregative attractiveness is justified in light of the District
Court's statement that segregation has "led to white flight from
the KCMSD to suburban districts." 1 App. 126; see Brief for
Respondents KCMSD et al. 44-45, and n. 28; Brief for Respondents
Jenkins et al. 47-49.6 The lower
6 Prior to 1954, Missouri mandated segregated schools for black
and white children.
Jenkins v.
Missouri, 593 F. Supp.
1485, 1490 (WD Mo. 1984). Immediately after the Court's decision in
Brown v.
Board of Education, 347 U. S. 483 (1954), the
State's Attorney General issued an opinion declaring the provisions
that mandated segregation unenforceable. 593 F. Supp., at 1490. In
the 1954-1955 school year, 18.9% of the KCMSD's students were
black. 807 F. 2d, at 680. The KCMSD became 30% black in the
1961-1962 school year, 40% black in the 1965-1966 school year, and
60% black in the 1975-1976 school year.
Ibid. In 1977, the
KCMSD implemented the 6C desegregation plan in order to ensure that
each school within the KCMSD had a minimum minority enrollment of
30%.
Jenkins
95
courts' "findings" as to "white flight" are both inconsistent
internally,7 and inconsistent with the typical supposition,
bolstered here by the record evidence, that "white flight" may
result from desegregation, not
de jure segregation.8 The
United States, as
amicus curiae, argues that the District
Court's finding that
"de jure segregation in the KCMSD
caused white students to leave the system ... is not inconsistent
with the district court's earlier conclusion that the suburban
districts did nothing to cause this white flight and therefore
could not be included in a mandatory interdistrict remedy." Brief
for United States as
Amicus Curiae 19, n. 2; see also
post, at 160-164. But the District Court's earlier findings,
affirmed by the Court of Appeals, were not so limited:
"[C]ontrary to the argument of [plaintiffs] that the [district
court] looked only to the culpability of the SSDs, the scope of the
order is far broader .... It noted that only the schools in one
district were affected and that the remedy must be limited to that
system. In examining the cause and effect issue, the court noted
that 'not only is plaintiff's evidence here blurred as to cause
and
v.
Missouri, 639 F. Supp. 19, 35 (WD Mo. 1985). Overall
enrollment in KCMSD decreased by 30% from the time that the 6C plan
first was implemented until 1986.
Id., at 36. During the
same time period, white enrollment decreased by 44%.
Ibid.
7 Compare n. 4,
supra, and
Jenkins, 807 F. 2d, at
662 ("[N]one of the alleged discriminatory actions committed by the
State or the federal defendants ha[s] caused any significant
current interdistrict segregation"), with
Jenkins v.
Missouri, 855 F.2d
1295, 1302
(CA8 1988) ("These holdings are bolstered by
the district court's findings that the preponderance of black
students in the district was due to the State and KCMSD's
constitutional violations, which caused white flight").
8 "During the hearing on the liability issue in this case there
was an abundance of evidence that many residents of the KCMSD left
the district and moved to the suburbs because of the district's
efforts to integrate its schools." 1 App. 239; see also
Scotland
Neck City Ed. of Ed., 407 U. S., at 491 (recognizing that
implementation of a desegregation remedy may result in "white
flight").
96
effect, there is no "careful delineation of the extent of the
effect.'" ... The district court thus dealt not only with the issue
whether the SSDs were constitutional violators but also whether
there were significant interdistrict segregative effects .... When
it did so, it made specific findings that negate current
significant interdistrict effects, and concluded that the
requirements of Milliken had not been met."
Jenkins v.
Missouri, 807 F. 2d 657, 672 (CA8 1986) (affirming, by an
equally divided court, the District Court's findings and conclusion
that there was no interdistrict violation or interdistrict effect)
(en banc).9
In
Freeman, we stated that "[t]he 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." 503 U.
S., at 496. The record here does not support the District Court's
reliance on "white flight" as a justification for a permissible
expansion of its intradistrict remedial authority through its
pursuit of de segregative attractiveness. See
Milliken
I, 418 U. S., at 746; see also
Dayton Bd. of Ed. v.
Brinkman, 433
U. S. 406, 417 (1977)
(Dayton I).
JUSTICE SOUTER claims that our holding effectively overrules
Hills v.
Gautreaux, 425 U. S. 284 (1976). See
also Brief for American Civil Liberties Union et al. as
Amici
Curiae 18-20. In
Gautreaux, the Federal Department
of
9 JUSTICE SOUTER construes the Court of Appeals' determination
to mean that the violations by the State and the KCMSD did not
cause segregation within the limits of each of the SSD's.
Post, at 163-164. But the Court of Appeals would not have
decided this question at the behest of these plaintiffs-present and
future KCMSD students-who have no standing to challenge segregation
within the confines of the SSD's. Cf.
Lujan v.
Defenders
of Wildlife, 504
U. S. 555, 560-561 (1992). Ergo, the Court of Appeals meant
exactly what it said: the requirements of
Milliken I had not
been met because the District Court's specific findings "negate
current significant interdistrict effects."
Jenkins, 807 F.
2d, at 672.
97
Housing and Urban Development (HUD) was found to have
participated, along with a local housing agency, in establishing
and maintaining a racially segregated public housing program. 425
U. S., at 286-291. After the Court of Appeals ordered" 'the
adoption of a comprehensive metropolitan area plan,'" id., at 291,
we granted certiorari to consider the "permissibility in light of
[Milliken I] of 'inter-district relief for discrimination in
public housing in the absence of a finding of an inter-district
violation.'"
Gautreaux, supra, at 292. Because the "relevant
geographic area for purposes of the [plaintiffs'] housing options
[was] the Chicago housing market, not the Chicago city limits," 425
U. S., at 299, we concluded that "a metropolitan area remedy ...
[was] not impermissible as a matter of law," id., at 306. Cf. id.,
at 298, n. 13 (distinguishing
Milliken I, in part, because
prior cases had established that racial segregation in schools is
"to be dealt with in terms of 'an established geographic and
administrative school system' ").
In
Gautreaux, we did not obligate the District Court to
"subjec[t] HUD to measures going beyond the geographical or
political boundaries of its violation."
Post, at 171172.
Instead, we cautioned that our holding "should not be interpreted
as requiring a metropolitan area order."
Gautreaux, 425 U.
S., at 306. We reversed appellate factfinding by the Court of
Appeals that would have mandated a metropolitan-area remedy, see
id., at 294-295, n. 11, and remanded the case back to the District
Court" 'for additional evidence and for further consideration of
the issue of metropolitan area relief,'" id., at 306.
Our decision today is fully consistent with
Gautreaux. A
district court seeking to remedy an intradistrict violation that
has not "directly caused" significant interdistrict effects,
Milliken I, supra, at 744-745, exceeds its remedial
authority if it orders a remedy with an interdistrict purpose. This
conclusion follows directly from
Milliken II, decided one
year after
Gautreaux, where we reaffirmed the bedrock
98
principle that "federal-court decrees 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." 433 U.
S., at 282. In
Milliken II, we also emphasized that "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."
Id., at 280-281.
Gautreaux, however, involved the imposition of a remedy upon
a federal agency. See 425 U. S., at 292, n. 9. Thus, it did not
raise the same federalism concerns that are implicated when a
federal court issues a remedial order against a State. See
Milliken II, supra, at 280-281.
The District Court's pursuit of "de segregative attractiveness"
cannot be reconciled with our cases placing limitations on a
district court's remedial authority. It is certainly theoretically
possible that the greater the expenditure per pupil within the
KCMSD, the more likely it is that some unknowable number of
nonminority students not presently attending schools in the KCMSD
will choose to enroll in those schools. Under this reasoning,
however, every increased expenditure, whether it be for teachers,
noninstructional employees, books, or buildings, will make the
KCMSD in some way more attractive, and thereby perhaps induce
nonminority students to enroll in its schools. But this rationale
is not susceptible to any objective limitation. Cf.
Milliken II,
supra, at 280 (remedial decree "must be designed as nearly as
possible 'to restore the victims of discriminatory conduct to the
position they would have occupied in the absence of such conduct'
"). This case provides numerous examples demonstrating the
limitless authority of the District Court operating under this
rationale. See,
e. g., App. to Pet. for Cert. A-115 (The
District Court has recognized that it has "provide[d] the KCMSD
with facilities and opportunities not available anywhere else in
the country"); id., at A-140 ("The District has repeatedly
requested that the [District Court] provide ex-
99
travagant programs based on the hopes that they will succeed in
the desegregation effort"). In short, de segregative attractiveness
has been used "as the hook on which to hang numerous policy choices
about improving the quality of education in general within the
KCMSD."
Jenkins II, 495 U. S., at 76 (KENNEDY, J.,
concurring in part and concurring in judgment).
Nor are there limits to the duration of the District Court's
involvement. The expenditures per pupil in the KCMSD currently far
exceed those in the neighboring SSD's. 19 F. 3d, at 399 (Beam, J.,
dissenting from denial of rehearing en banc) (per-pupil costs
within the SSD's, excluding capital costs, range from $2,854 to
$5,956; per-pupil costs within the KCMSD, excluding capital costs,
are $9,412); Brief for Respondent KCMSD et al. 18, n. 5 (arguing
that per-pupil costs in the KCMSD, excluding capital costs, are
$7,665.18). Sixteen years after this litigation began, the District
Court recognized that the KCMSD has yet to offer a viable method of
financing the "wonderful school system being built." App. to Pet.
for Cert. A-124; cf.
Milliken II, supra, at 293 (Powell, J.,
concurring in judgment) ("Th[e] parties ... have now joined forces
apparently for the purpose of extracting funds from the state
treasury"). Each additional program ordered by the District
Court-and financed by the State-to increase the "de segregative
attractiveness" of the school district makes the KCMSD more and
more dependent on additional funding from the State; in turn, the
greater the KCMSD's dependence on state funding, the greater its
reliance on continued supervision by the District Court. But our
cases recognize that local autonomy of school districts is a vital
national tradition,
Dayton I, 433 U. S., at 410, and that a
district court must strive to restore state and local authorities
to the control of a school system operating in compliance with the
Constitution. See
Freeman, 503 U. S., at 489;
Dowell,
498 U. S., at 247.
100
The District Court's pursuit of the goal of "de segregative
attractiveness" results in so many imponderables and is so far
removed from the task of eliminating the racial identifiability of
the schools within the KCMSD that we believe it is beyond the
admittedly broad discretion of the District Court. In this posture,
we conclude that the District Court's order of salary increases,
which was "grounded in remedying the vestiges of segregation by
improving the desegregative attractiveness of the KCMSD," App. to
Pet. for Cert. A-90, is simply too far removed from an acceptable
implementation of a permissible means to remedy previous legally
mandated segregation. See
Milliken II, 433 U. S., at
280.
Similar considerations lead us to conclude that the District
Court's order requiring the State to continue to fund the quality
education programs because student achievement levels were still
"at or below national norms at many grade levels" cannot be
sustained. The State does not seek from this Court a declaration of
partial unitary status with respect to the quality education
programs. Reply Brief for Petitioners 3. It challenges the
requirement of indefinite funding of a quality education program
until national norms are met, based on the assumption that while a
mandate for significant educational improvement, both in teaching
and in facilities, may have been justified originally, its
indefinite extension is not.
Our review in this respect is needlessly complicated because the
District Court made no findings in its order approving continued
funding of the quality education programs. See App. to Pet. for
Cert. A-69 to A-75. Although the Court of Appeals later recognized
that a determination of partial unitary status requires "careful
factfinding and detailed articulation of findings," 11 F. 3d, at
765, it declined to remand to the District Court. Instead it
attempted to assemble an adequate record from the District Court's
state-
101
ments from the bench and subsequent orders.
Id., at 761.
In one such order relied upon by the Court of Appeals, the District
Court stated that the KCMSD had not reached anywhere close to its
"maximum potential because the District is still at or below
national norms at many grade levels." App. to Pet. for Cert.
A-131.
But this clearly is not the appropriate test to be applied in
deciding whether a previously segregated district has achieved
partially unitary status. See
Freeman, supra, at
491;
Dowell, 498 U. S., at 249-250. The basic task of the District
Court is to decide whether the reduction in achievement by minority
students attributable to prior
de jure segregation has been
remedied to the extent practicable. Under our precedents, the State
and the KCMSD are "entitled to a rather precise statement of
[their] obligations under a desegregation decree."
Id., at
246. Although the District Court has determined that "[s]egregation
has caused a system wide
reduction in achievement in the
schools of the KCMSD," 639 F. Supp., at 24, it never has identified
the incremental effect that segregation has had on minority student
achievement or the specific goals of the quality education
programs. Cf.
Dayton I, supra, at 420.10
In reconsidering this order, the District Court should apply our
three-part test from
Freeman v.
Pitts, supra, at 491.
The District Court should consider that the State's role with
respect to the quality education programs has been limited to the
funding, not the implementation, of those programs. As all the
parties agree that improved achievement on test scores is not
necessarily required for the State to achieve partial unitary
status as to the quality education programs, the District Court
should sharply limit, if not dispense with, its reliance on this
factor. Brief for Respond-
10 To the extent that the District Court has adopted the quality
education program to further the goal of de segregative
attractiveness, that goal is no longer valid. See supra, at
91-100.
102
ents KCMSD et al. 34-35; Brief for Respondents Jenkins et al.
26. Just as demographic changes independent of
de jure
segregation will affect the racial composition of student
assignments,
Freeman, 503 U. S., at 494-495, so too will
numerous external factors beyond the control of the KCMSD and the
State affect minority student achievement. So long as these
external factors are not the result of segregation, they do not
figure in the remedial calculus. See
Spangler, 427 U. S., at
434;
Swann, 402 U. S., at 22. Insistence upon academic goals
unrelated to the effects of legal segregation unwarrantably
postpones the day when the KCMSD will be able to operate on its
own.
The District Court also should consider that many goals of its
quality education plan already have been attained: the KCMSD now is
equipped with "facilities and opportunities not available anywhere
else in the country." App. to Pet. for Cert. A-115. KCMSD schools
received an AAA rating eight years ago, and the present remedial
programs have been in place for seven years. See 19 F. 3d, at 401
(Beam, J., dissenting from denial of rehearing en bane). It may be
that in education, just as it may be in economics, a "rising tide
lifts all boats," but the remedial quality education program should
be tailored to remedy the injuries suffered by the victims of prior
de jure segregation. See
Mill i
ken II, supra,
at 287. Minority students in kindergarten through grade 7 in the
KCMSD always have attended AAArated schools; minority students in
the KCMSD that previously attended schools rated below AAA have
since received remedial education programs for a period of up to
seven years.
On remand, the District Court must bear in mind that its end
purpose is not only "to remedy the violation" to the extent
practicable, but also "to restore state and local authorities to
the control of a school system that is operating in compliance with
the Constitution."
Freeman, supra, at 489.
103
The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE O'CONNOR, concurring.
Because "[t]he mere fact that one question must be answered
before another does not insulate the former from Rule 14.1(a),"
Lebron v.
National Railroad Passenger Corporation,
513 U. S. 374,
404 (1995) (O'CONNOR, J., dissenting), I reject the State's
contention that the propriety of the District Court's remedy is
fairly included in the question whether student achievement is a
valid measure of partial unitary status as to the quality education
program, Brief for Petitioners 18.
The State, however, also challenges the District Court's order
setting salaries for all but 3 of the 5,000 persons employed by the
Kansas City, Missouri, School District (KCMSD). In that order, the
court stated: "[T]he basis for this Court's ruling is grounded in
remedying the vestiges of segregation by improving the de
segregative attractiveness of the KCMSD. In order to improve the de
segregative attractiveness of the KCMSD, the District must hire and
retain high quality teachers, administrators and staff." App. to
Pet. for Cert. A-90. The question presented in the petition for
certiorari asks whether the order comports with our cases requiring
that remedies "address and relate to the constitutional violation
and be tailored to cure the condition that offends the
Constitution," Pet. for Cert. i. Thus, the State asks not only
whether salary increases are an appropriate means to achieve the
District Court's goal of de segregative attractiveness, but also
whether that goal itself legitimately relates to the predicate
constitutional violation. The propriety of de segregative
attractiveness as a remedial purpose, therefore, is not simply an
issue "prior to the clearly presented question,"
Lebron,
supra, at 382; it is an issue presented in the question itself
and, as such, is one that
104
we appropriately and necessarily consider in answering that
question.
Beyond the plain words of the question presented, the State's
opening brief placed respondents on notice of its argument; fully
25 of the State's 30 pages of discussion were devoted to de
segregative attractiveness and suburban comparability. See Brief
for Petitioners 19-45. Such focus should not come as a surprise. At
every stage of this litigation, as the Court notes,
ante, at
85-86, the State has questioned whether the salary increase order
exceeded the nature and scope of the constitutional violation. In
disposing of the argument, the lower courts explicitly relied on
the need for de segregative attractiveness and suburban
comparability. See,
e. g., 13 F. 3d, 1170, 1172 (CA8 1993)
("The significant finding of the court with respect to the earlier
funding order was that the salary increases were essential to
comply with the court's desegregation orders, and that high quality
teachers, administrators, and staff must be hired to improve the de
segregative attractiveness of KCMSD");
11 F.3d
755, 767 (CA81993) ("In addition to compensating the victims,
the remedy in this case was also designed to reverse white flight
by offering superior educational opportunities").
Given the State's persistence and the specificity of the lower
court decisions, respondents would have ignored the State's
arguments on white flight and de segregative attractiveness at
their own peril. But they did not do so, and instead engaged those
arguments on the merits. See Brief for Respondents KCMSD et al.
44-49; Brief for Respondents Jenkins et al. 41-49. Perhaps the
response was not made as artfully and completely as the dissenting
Justices would like, but it was made nevertheless; whatever the
cause of respondents' supposed failure to appreciate "what was
really at stake,"
post, at 139 (SOUTER, J., dissenting), it
is certainly not lack of fair notice.
Given such notice, there is no unfairness to the Court resolving
the issue. Unlike
Bray v.
Alexandria Women's
105
Health Clinic, 506 U. S. 263 (1993), for
example, where in order to decide a particular question, one would
have had to "find in the complaint claims that the respondents
themselves have admitted are not there; ... resolve a question not
presented to, or ruled on by, any lower court; ... revise the rule
that it is the petition for certiorari (not the brief in opposition
and later briefs) that determines the questions presented; and ...
penalize the parties for not addressing an issue on which the Court
specifically denied supplemental briefing," id., at 280-281, in
this case one need only read the opinions below to see that the
question of de segregative attractiveness was presented to and
passed upon by the lower courts; the petition for certiorari to see
that it was properly presented; and the briefs to see that it was
fully argued on the merits. If it could be thought that deciding
the question in
Bray presented no "unfairness" because it
"was briefed, albeit sparingly, by the parties prior to the first
oral argument," id., at 291 (SOUTER, J., concurring in judgment in
part and dissenting in part), there should hardly be cause to cry
foul here. The Court today transgresses no bounds of orderly
adjudication in resolving a genuine dispute that is properly
presented for its decision.
On the merits, the Court's resolution of the dispute comports
with
Hills v.
Gautreaux, 425 U. S. 284 (1976).
There, we held that there is no
"per se rule that federal
courts lack authority to order parties found to have violated the
Constitution to undertake remedial efforts beyond the municipal
boundaries of the city where the violation occurred," id., at 298.
This holding follows from our judgment in
Milliken v.
Bradley, 418
U. S. 717 (1974)
(Milliken 1), that an interdistrict
remedy is permissible, but only upon a showing that "there has been
a constitutional violation within one district that produces a
significant segregative effect in another district,"
id., at
745. The
per se rule that the petitioner urged upon the
Court in
Gautreaux would have erected an "arbitrary and
mechanical" shield at the city limits, 425 U. S., at
106
300, and contradicted the holding in
Milliken I that
remedies may go beyond the boundaries of the constitutional
violator.
Gautreaux, however, does not eliminate the
requirement of
Milliken I that such territorial
transgression is permissible only upon a showing that the
intradistrict constitutional violation produced significant
interdistrict segregative effects; if anything, our opinion
repeatedly affirmed that principle, see
Gautreaux, supra, at
292-294, 296, n. 12. More important for our purposes here,
Gautreaux in no way contravenes the underlying principle
that the scope of desegregation remedies, even those that are
solely intradistrict, is "determined by the nature and extent of
the constitutional violation."
Milliken I, supra, at 744
(citing
Swann v.
CharlotteMecklenburg Bd. of Ed.,
402 U. S. 1, 16
(1971)).
Gautreaux simply does not give federal courts a
blank check to impose unlimited remedies upon a constitutional
violator.
As an initial matter,
Gautreaux itself may not even have
concerned a case of interdistrict relief, at least not in the sense
that
Milliken I and other school desegregation cases have
understood it. Our opinion made clear that the authority of the
Department of Housing and Urban Development (HUD) extends beyond
the Chicago city limits, see
Gautreaux, 425 U. S., at
298-299, n. 14, and that HUD's own administrative practice treated
the Chicago metropolitan area as an undifferentiated whole, id., at
299. Thus, "[t]he relevant geographic area for purposes of the
respondents' housing options is the Chicago housing market, not the
Chicago city limits."
Ibid. Because the relevant district is
the greater metropolitan area, drawing the remedial line at the
city limits would be "arbitrary and mechanical."
Id., at
300.
JUSTICE SOUTER,
post, at 169-170, makes much of how HUD
phrased the question presented: whether it is appropriate to grant
"'inter-district relief for discrimination in public housing in the
absence of a finding of an inter-district violation.' "
Gautreaux, supra, at 292. HUD obviously had an interest in
phrasing the question thus, since doing so
107
emphasizes the alleged deviation from
Milliken 1. But the
Court was free to reject HUD's characterization of the relevant
district, which it did:
"The housing market area 'usually extends beyond the city
limits' and in the larger markets 'may extend into several
adjoining counties.' ... An order against HUD and CHA regulating
their conduct in the greater metropolitan area will do no more than
take into account HUD's expert determination of the area relevant
to the respondents' housing opportunities and will thus be wholly
commensurate with 'the nature and extent of the constitutional
violation.'" 425 U. S., at 299-300 (quoting Milliken I,
supra, at 744).
In light of this explicit holding, any suggestion that
Gautreaux dispensed with the predicates of
Milliken I
for interdistrict relief rings hollow.
This distinction notwithstanding, the dissent emphasizes a
footnote in
Gautreaux, in which we reversed the finding by
the Court of Appeals that "either an interdistrict violation or an
interdistrict segregative effect may have been present," 425 U. S.,
at 294, n. 11, and argues that implicit in that holding is a
suggestion that district lines may be ignored even absent a showing
of interdistrict segregative effects,
post, at 173. But no
footnote is an island, entire of itself, and our statement in
footnote 11 must be read in context. As explained above, we
rejected the petitioner's categorical suggestion that
"court-ordered metropolitan area relief in this case would be
impermissible as a matter of law," 425 U. S., at 305. But the Court
of Appeals had gone too far the other way, suggesting that the
District Court had to consider metropolitan area relief because the
conditions of
Milliken I-i.
e., interdistrict
violation or significant interdistrict segregative effects-had been
established as a factual matter. We reversed these ill-advised
findings by the appellate court in order to preserve to the
District Court its proper role,
108
acknowledged by the dissent,
post, at 173-174, n. 8, of
finding the necessary facts and exercising its discretion
accordingly. Indeed, in footnote 11 itself, we repeated the
requirement of a "significant segregative effect in another
district,"
Milliken I, 418 U. S., at 745, and held that the
Court of Appeals' "unsupported speculation falls far short of the
demonstration" required,
Gautreaux, supra, at 295, n. 11.
There would have been little need to overrule the Court of Appeals
expressly on these factual matters if they were indeed
irrelevant.
It is this reading of
Hills v.
Gautreaux-as an
affirmation of, not a deviation from,
Milliken I-that the
Court of Appeals itself adopted in an earlier phase of this
litigation:
"Milliken and
Hills make clear that we may grant
interdistrict relief only to remedy a constitutional violation by
the SSD [suburban school district], or to remedy an interdistrict
effect in the SSD caused by a constitutional violation in KCMSD."
Jenkins v.
Missouri, 807 F.2d
657, 672 (CA8 1986) (en bane). Perhaps
Gautreaux was
"mentioned only briefly" by the respondents,
post, at 174,
because the case may actually lend support to the State's
argument.
Absent
Gautreaux, the dissent hangs on the semantic
distinction that "the District Court did not mean by an
'intradistrict violation' what the Court apparently means by it
today. The District Court meant that the violation within the KCMSD
had not led to segregation outside of it, and that no other school
districts had played a part in the violation. It did not mean that
the violation had not produced effects of any sort beyond the
district."
Post, at 159. The relevant inquiry under
Milliken I and
Gautreaux, however, is not whether the
intradistrict violation "produced effects of any sort beyond the
district," but rather whether such violation caused "significant
segregative effects" across district boundaries,
Milliken I,
supra, at 745. When the Court of Appeals affirmed the District
Court's initial remedial order, it specifically stated that the
District Court "dealt not only with the issue of whether the SSDs
[suburban school
109
districts] were constitutional violators but also whether there
were significant interdistrict segregative effects .... When it did
so, it made specific findings that negate current significant
interdistrict effects, and concluded that the requirements of
Milliken had not been met."
Jenkins v.
Missouri, 807 F. 2d, at 672. This holding is unambiguous. N
either the legal responsibility for nor the causal effects of
KCMSD's racial segregation transgressed its boundaries, and absent
such interdistrict violation or segregative effects,
Milliken and
Gautreaux do not permit a regional
remedial plan.
JUSTICE SOUTER, however, would introduce a different level of
ambiguity, arguing that the District Court took a limited view of
what effects are segregative: "[WJhile white flight would have
produced significant effects in other school districts, in the form
of greatly increased numbers of white students, those effects would
not have been segregative beyond the KCMSD, as the departing
students were absorbed into wholly unitary systems."
Post,
at 164. Even if accurate, this characterization of the District
Court's findings would be of little significance as to its
authority to order interdistrict relief. Such remedy is appropriate
only "to eliminate the interdistrict segregation directly caused by
the constitutional violation,"
Milliken I,
supra, at 745. Whatever effects KCMSD's constitutional
violation may be ventured to have had on the surrounding districts,
those effects would justify interdistrict relief only if they were
"segregative beyond the KCMSD."
School desegregation remedies are intended, "as all remedies
are, to restore the victims of discriminatory conduct to the
position they would have occupied in the absence of such conduct."
Milliken I, 418 U. S., at 746. In the paradigmatic
case of an interdistrict violation, where district boundaries are
drawn on the basis of race, a regional remedy is appropriate to
ensure integration across district lines. So, too, where
surrounding districts contribute to the constitu-
110
tional violation by affirmative acts intended to segregate the
races-e. g., where those districts "arrang[e] for white students
residing in the Detroit District to attend schools in Oakland and
Macomb Counties,"
id., at 746-747.
Milliken I of
course permits interdistrict remedies in these instances of
interdistrict violations. Beyond that, interdistrict remedies are
also proper where "there has been a constitutional violation within
one district that produces a significant segregative effect in
another district."
Id., at 745. Such segregative effect may
be present where a predominantly black district accepts black
children from adjacent districts, see id., at 750, or perhaps even
where the fact of intradistrict segregation actually causes whites
to flee the district, cf.
Gautreaux, 425 U. S., at 295, n.
11, for example, to avoid discriminatorily underfunded schools-and
such actions produce regional segregation along district lines. In
those cases, where a purely intradistrict violation has caused a
significant interdistrict segregative effect, certain interdistrict
remedies may be appropriate. Where, however, the segregative
effects of a district's constitutional violation are contained
within that district's boundaries, there is no justification for a
remedy that is interdistrict in nature and scope.
Here, where the District Court found that KCMSD students
attended schools separated by their race and that facilities have
"literally rotted,"
Jenkins v.
Missouri, 672 F. Supp.
400, 411 (WD Mo. 1987), it of course should order restorations and
remedies that would place previously segregated black KCMSD
students at par with their white KCMSD counterparts. The District
Court went further, however, and ordered certain improvements to
KCMSD as a whole, including schools that were not previously
segregated; these district-wide remedies may also be justified (the
State does not argue the point here) in light of the finding that
segregation caused "a system wide
reduction in student
achievement in the schools of the KCMSD,"
Jenkins v.
Missouri, 639 F. Supp. 19, 24 (WD Mo. 1985). Such
remedies
111
obviously may benefit some who did not suffer under-and, indeed,
may have even profited from-past segregation. There is no
categorical constitutional prohibition on nonvictims enjoying the
collateral, incidental benefits of a remedial plan designed "to
restore the victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct."
Milliken
I, 418 U. S., at 746. Thus, if restoring KCMSD to unitary
status would attract whites into the school district, such a
reversal of the white exodus would be of no legal consequence.
What the District Court did in this case, however, and how it
transgressed the constitutional bounds of its remedial powers, was
to make de segregative attractiveness the underlying goal of its
remedy for the specific purpose of reversing the trend of white
flight. However troubling that trend may be, remedying it is within
the District Court's authority only if it is "directly caused by
the constitutional violation."
Id., at 745. The Court and
the dissent attempt to reconcile the different statements by the
lower courts as to whether white flight was caused by segregation
or desegregation. See
ante, at 94-96;
post, at
161-164. One fact, however, is uncontroverted. When the District
Court found that KCMSD was racially segregated, the constitutional
violation from which all remedies flow in this case, it also found
that there was neither an interdistrict violation nor significant
interdistrict segregative effects. See
Jenkins v.
Missouri, 807 F. 2d, at 672;
ante, at 96. Whether the
white exodus that has resulted in a school district that is 68%
black was caused by the District Court's remedial orders or by
natural, if unfortunate, demographic forces, we have it directly
from the District Court that the segregative effects of KCMSD's
constitutional violation did not transcend its geographical
boundaries. In light of that finding, the District Court cannot
order remedies seeking to rectify regional demographic trends that
go beyond the nature and scope of the constitutional violation.
112
This case, like other school desegregation litigation, is
concerned with "the elimination of the discrimination inherent in
the dual school systems, not with myriad factors of human existence
which can cause discrimination in a multitude of ways on racial,
religious, or ethnic grounds."
Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 22. Those
myriad factors are not readily corrected by judicial intervention,
but are best addressed by the representative branches; time and
again, we have recognized the ample authority legislatures possess
to combat racial injustice, see,
e. g., Wisconsin v.
Mitchell, 508
U. S. 476, 487-488 (1993);
Jones v.
Alfred H. Mayer
Co, 392 U. S.
409, 443-444 (1968);
Katzenbach v.
Morgan,
384 U. S. 641,
651 (1966);
South Carolina v.
Katzenbach, 383 U. S. 301, 326
(1966). It is true that where such legislative efforts classify
persons on the basis of their race, we have mandated strict
judicial scrutiny to ensure that the personal right to equal
protection of the laws has not been infringed.
Richmond v.
J.
A. Croson Co., 488 U. S. 469, 493494
(1989) (plurality opinion). But it is not true that strict scrutiny
is "strict in theory, but fatal in fact,"
Fullilove v.
Klutznick, 448
U. S. 448, 519 (1980) (Marshall, J., concurring in judgment);
cf.
post, at 121 (THOMAS, J., concurring). It is only by
applying strict scrutiny that we can distinguish between
unconstitutional discrimination and narrowly tailored remedial
programs that legislatures may enact to further the compelling
governmental interest in redressing the effects of past
discrimination.
Courts, however, are different. The necessary restrictions on
our jurisdiction and authority contained in Article III of the
Constitution limit the judiciary's institutional capacity to
prescribe palliatives for societal ills. The unfortunate fact of
racial imbalance and bias in our society, however pervasive or
invidious, does not admit of judicial intervention absent a
constitutional violation. Thus, even though the Civil War
Amendments altered the balance of authority between federal and
state
legislatures, see
Ex parte Virginia,
113
100 U. S. 339,
345 (1880), JUSTICE THOMAS cogently observes that "what the federal
courts cannot do at the federal level they cannot do against the
States; in either case, Article III courts are constrained by the
inherent constitutionallimitations on their powers."
Post,
at 132. Unlike Congress, which enjoys" 'discretion in determining
whether and what legislation is needed to secure the guarantees of
the Fourteenth Amendment,'"
Croson, supra, at 490 (quoting
Katzenbach v.
Morgan, supra, at 651), federal courts
have no comparable license and must always observe their limited
judicial role. Indeed, in the school desegregation context, federal
courts are specifically admonished to "take into account the
interests of state and local authorities in managing their own
affairs,"
Milliken v.
Bradley, 433 U. S. 267, 281 (1977)
(Milliken II), in light of the intrusion into the area of
education, "where States historically have been sovereign,"
United States v.
Lopez, 514 U. S. 549, 564
(1995), and "to which States lay claim by right of history and
expertise," id., at 583 (KENNEDY, J., concurring).
In this case, it may be the "myriad factors of human existence,"
Swann, supra, at 22, that have prompted the white exodus
from KCMSD, and the District Court cannot justify its transgression
of the above constitutional principles simply by invoking de
segregative attractiveness. The Court today discusses desegregative
attractiveness only insofar as it supports the salary increase
order under review, see
ante, at 84, 89-90, and properly
refrains from addressing the propriety of all the remedies that the
District Court has ordered, revised, and extended in the 18-year
history of this case. These remedies may also be improper to the
extent that they serve the same goals of de segregative
attractiveness and suburban comparability that we hold today to be
impermissible, and, conversely, the District Court may be able to
justify some remedies without reliance on these goals. But these
are questions that the Court rightly leaves to be answered on
remand. For now, it is enough to affirm the
114
principle that "the nature of the desegregation remedy is to be
determined by the nature and scope of the constitutional
violation."
Milliken II, supra, at 280.
For these reasons, I join the opinion of the Court.
JUSTICE THOMAS, concurring.
It never ceases to amaze me that the courts are so willing to
assume that anything that is predominantly black must be inferior.
Instead of focusing on remedying the harm done to those black
schoolchildren injured by segregation, the District Court here
sought to convert the Kansas City, Missouri, School District
(KCMSD) into a "magnet district" that would reverse the "white
flight" caused by desegregation. In this respect, I join the
Court's decision concerning the two remedial issues presented for
review. I write separately, however, to add a few thoughts with
respect to the overall course of this litigation. In order to
evaluate the scope of the remedy, we must understand the scope of
the constitutional violation and the nature of the remedial powers
of the federal courts.
Two threads in our jurisprudence have produced this unfortunate
situation, in which a District Court has taken it upon itself to
experiment with the education of the KCMSD's black youth. First,
the court has read our cases to support the theory that black
students suffer an unspecified psychological harm from segregation
that retards their mental and educational development. This
approach not only relies upon questionable social science research
rather than constitutional principle, but it also rests on an
assumption of black inferiority. Second, we have permitted the
federal courts to exercise virtually unlimited equitable powers to
remedy this alleged constitutional violation. The exercise of this
authority has trampled upon principles of federalism and the
separation of powers and has freed courts to pursue other agendas
unrelated to the narrow purpose of precisely remedying a
constitutional harm.
115
I A
The mere fact that a school is black does not mean that it is
the product of a constitutional violation. A "racial imbalance does
not itself establish a violation of the Constitution."
United
States v.
Fordice, 505 U. S. 717, 745 (1992)
(THOMAS, J., concurring). Instead, in order to find
unconstitutional segregation, we require that plaintiffs "prove all
of the essential elements of
de jure segregation-that is,
stated simply, a current condition of segregation resulting from
intentional state action directed specifically to the
[allegedly segregated] schools."
Keyes v.
School Dist.
No.1, Denver, 413
U. S. 189, 205-206 (1973) (emphasis added). "[T]he
differentiating factor between
de jure segregation and
so-called
de facto segregation ... is
purpose or
intent to segregate."
Id., at 208 (emphasis in
original).
In the present case, the District Court inferred a continuing
constitutional violation from two primary facts: the existence of
de jure segregation in the KCMSD prior to 1954, and the
existence of
de facto segregation today. The District Court
found that in 1954, the KCMSD operated 16 segregated schools for
black students, and that in 1974 39 schools in the district were
more than 90% black. Desegregation efforts reduced this figure
somewhat, but the District Court stressed that 24 schools remained
"racially isolated," that is, more than 90% black, in 1983-1984.
Jenkins v.
Missouri, 593 F. Supp. 1485, 1492-1493 (WD
Mo. 1984). For the District Court, it followed that the KCMSD had
not dismantled the dual system entirely.
Id., at 1493. The
District Court also concluded that because of the KCMSD's failure
to "become integrated on a system-wide basis," the dual system
still exerted "lingering effects" upon KCMSD black students, whose
"general attitude of inferiority" produced "low achievement ...
which ultimately limits employment opportunities and causes
poverty."
Id., at 1492.
116
Without more, the District Court's findings could not have
supported a finding of liability against the State. It should by
now be clear that the existence of one-race schools is not by
itself an indication that the State is practicing segregation. See,
e. g., Swann v.
Charlotte-Mecklenburg Bd. of Ed.,
402 U. S. 1, 26
(1971);
Pasadena City Bd. of Ed. v.
Spangler,
427 U. S. 424,
435-437 (1976);
Freeman v.
Pitts, 503 U. S. 467, 493-494
(1992). The continuing "racial isolation" of schools after
de
jure segregation has ended may well reflect voluntary housing
choices or other private decisions. Here, for instance, the
demography of the entire KCMSD has changed considerably since 1954.
Though blacks accounted for only 18.9% of KCMSD's enrollment in
1954, by 1983-1984 the school district was 67.7% black. 593 F.
Supp., at 1492, 1495. That certain schools are overwhelmingly black
in a district that is now more than two-thirds black is hardly a
sure sign of intentional state action.
In search of intentional state action, the District Court linked
the State and the dual school system of 1984 in two ways. First,
the court found that "[i]n the past" the State had placed its
"imprimatur on racial discrimination." As the court explained, laws
from the Jim Crow era created "an atmosphere in which ... private
white individuals could justify their bias and prejudice against
blacks," with the possible result that private realtors, bankers,
and insurers engaged in more discriminatory activities than would
otherwise have occurred.
Id., at 1503. But the District
Court itself acknowledged that the State's alleged encouragement of
private discrimination was a fairly tenuous basis for finding
liability.
Ibid. The District Court therefore rested the
State's liability on the simple fact that the State had
intentionally created the dual school system before 1954, and had
failed to fulfill "its affirmative duty of disestablishing a dual
school system subsequent to 1954."
Id., at 1504. According
to the District Court, the schools whose student bodies were
117
more than 90% black constituted "vestiges" of the prior
de jure segregation, which the State and the KCMSD had an
obligation to eliminate.
Id., at 1504, 1506. Later, in the
course of issuing its first "remedial" order, the District Court
added that a "system wide reduction in student achievement in the
schools of ... KCMSD" was also a vestige of the prior
de
jure segregation.
Jenkins v.
Missouri, 639 F.
Supp. 19, 24 (WD Mo. 1985) (emphasis deleted).l In a subsequent
order, the District Court indicated that post-1954 "white flight"
was another vestige of the pre-1954 segregated system. 1 App.
126.
In order for a "vestige" to supply the ground for an exercise of
remedial authority, it must be clearly traceable to the dual school
system. 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."
Freeman v.
Pitts,
503 U. S., at 496. District courts must not confuse the
consequences of
de jure segregation with the results of
larger social forces or of private decisions. "It is simply not
always the case that demographic forces causing population change
bear any real and substantial relation to a
de jure
violation."
Ibid.; accord,
id., at 501 (SCALIA, J.,
concurring);
Columbus Bd. of Ed. v.
Penick, 443 U. S. 449, 512 (1979)
(REHNQUIST, J., dissenting);
Pasadena City Bd. of Ed. v.
Spangler, supra, at 435-436. As state-enforced segregation
recedes further into the past, it is more likely that "these kinds
of continuous and massive demographic shifts,"
Freeman, 503
U. S., at 495, will be the real source of racial imbalance or of
poor educational performance in a school dis-
1 It appears that the low achievement levels were never properly
attributed to any discriminatory actions on the part of the State
or of KCMSD. The District Court simply found that the KCMSD's test
scores were below national norms in reading and mathematics. 639 F.
Supp., at 25. Without more, these statistics are meaningless.
118
trict. And as we have emphasized, "[i]t is beyond the authority
and beyond the practical ability of the federal courts to try to
counteract" these social changes.
Ibid.
When a district court holds the State liable for discrimination
almost 30 years after the last official state action, it must do
more than show that there are schools with high black populations
or low test scores. Here, the District Judge did not make clear how
the high black enrollments in certain schools were fairly traceable
to the State of Missouri's actions. I do not doubt that Missouri
maintained the despicable system of segregation until 1954. But I
question the District Court's conclusion that because the State had
enforced segregation until 1954, its actions, or lack thereof,
proximately caused the "racial isolation" of the predominantly
black schools in 1984. In fact, where, as here, the finding of
liability comes so late in the day, I would think it incumbent upon
the District Court to explain how more recent social or demographic
phenomena did not cause the "vestiges." This the District Court did
not do.
B
Without a basis in any real finding of intentional government
action, the District Court's imposition of liability upon the State
of Missouri improperly rests upon a theory that racial imbalances
are unconstitutional. That is, the court has "indulged the
presumption, often irrebuttable in practice, that a presently
observed [racial] imbalance has been proximately caused by
intentional state action during the prior
de jure era."
United States v.
Fordice, 505 U. S., at 745 (THOMAS,
J., concurring) (citing
Dayton Bd. of Ed. v.
Brinkman, 443
U. S. 526, 537 (1979), and
Keyes v.
School Dist.
No.1, 413 U. S., at 211). In effect, the court found that
racial imbalances constituted an ongoing constitutional violation
that continued to inflict harm on black students.
119
This position appears to rest upon the idea that any school that
is black is inferior, and that blacks cannot succeed without the
benefit of the company of whites.
The District Court's willingness to adopt such stereotypes
stemmed from a misreading of our earliest school desegregation
case. In
Brown v.
Board of Education, 347 U. S. 483 (1954)
(Brown I), the Court noted several psychological and
sociological studies purporting to show that
de jure
segregation harmed black students by generating "a feeling of
inferiority" in them. Seizing upon this passage in
Brown I,
the District Court asserted that "forced segregation ruins
attitudes and is inherently unequal." 593 F. Supp., at 1492. The
District Court suggested that this inequality continues in full
force even after the end of
de jure segregation:
"The general attitude of inferiority among blacks produces low
achievement which ultimately limits employment opportunities and
causes poverty. While it may be true that poverty results in low
achievement regardless of race, it is undeniable that most
poverty-level families are black. The District stipulated that as
of 1977 they had not eliminated all the vestiges of the prior dual
system. The Court finds the inferior education indigenous of the
state-compelled dual school system has lingering effects in the
[KCMSDJ." Ibid. (citations omitted).
Thus, the District Court seemed to believe that black students
in the KCMSD would continue to receive an "inferior education"
despite the end of
de jure segregation, as long as
de
facto segregation persisted. As the District Court later
concluded, compensatory educational programs were necessary "as a
means of remedying many of the educational problems which go hand
in hand with racially isolated minority student populations." 639
F. Supp., at 25. Such assumptions and any social science research
upon which they rely
120
certainly cannot form the basis upon which we decide matters of
constitutional principle.2
It is clear that the District Court misunderstood the meaning of
Brown 1.
Brown I did not say that "racially isolated"
schools were inherently inferior; the harm that it identified was
tied purely to
de jure segregation, not
de facto
segregation. Indeed,
Brown I itself did not need to rely
upon any psychological or social-science research in order to
announce the simple, yet fundamental, truth that the government
cannot discriminate among its citizens on the basis of race. See
McConnell, Originalism and the Desegregation Decisions, 81 Va. L.
Rev. 947 (1995). As the Court's unanimous opinion indicated: "[I]n
the field of public education the doctrine of 'separate but equal'
has no place. Separate educational facilities are inherently
unequal."
Brown I, supra, at 495. At the heart
of this interpretation of the Equal Protection Clause lies the
principle that the government must treat citi-
2 The studies cited in
Brown I have received harsh
criticism. See,
e. g., Yudof, School Desegregation: Legal
Realism, Reasoned Elaboration, and Social Science Research in the
Supreme Court, 42 Law & Contemp. Prob. 57,70 (Autumn 1978); L.
Graglia, Disaster by Decree: The Supreme Court Decisions on Race
and the Schools 27-28 (1976). Moreover, there simply is no
conclusive evidence that desegregation either has sparked a
permanent jump in the achievement scores of black children, or has
remedied any psychological feelings of inferiority black
schoolchildren might have had. See,
e. g., Bradley &
Bradley, The Academic Achievement of Black Students in Desegregated
Schools, 47 Rev. Educational Research 399 (1977); N. St. John,
School Desegregation: Outcomes for Children (1975); Epps, The
Impact of School Desegregation on Aspirations, Self-Concepts and
Other Aspects of Personality, 39 Law & Contemp. Prob. 300
(Spring 1975). Contra, Crain & Mahard, Desegregation and Black
Achievement:
A Review of the Research, 42 Law & Contemp. Prob. 17 (Summer
1978); Crain & Mahard, The Effect of Research Methodology on
DesegregationAchievement Studies: A Meta-Analysis, 88 Am. J. of
Sociology 839 (1983). Although the gap between black and white test
scores has narrowed over the past two decades, it appears that this
has resulted more from gains in the socioeconomic status of black
families than from desegregation. See Armor, Why is Black
Educational Achievement Rising?, 108 The Public Interest 65, 77-79
(Summer 1992).
121
zens as individuals, and not as members of racial, ethnic, or
religious groups. It is for this reason that we must subject all
racial classifications to the strictest of scrutiny, which (aside
from two decisions rendered in the midst of wartime, see
Hirabayashi v.
United States, 320 U. S. 81 (1943);
Korematsu v.
United States, 323 U. S. 214 (1944)) has
proven automatically fatal.
Segregation was not unconstitutional because it might have
caused psychological feelings of inferiority. Public school systems
that separated blacks and provided them with superior educational
resources-making blacks "feel" superior to whites sent to lesser
schools-would violate the Fourteenth Amendment, whether or not the
white students felt stigmatized, just as do school systems in which
the positions of the races are reversed. Psychological injury or
benefit is irrelevant to the question whether state actors have
engaged in intentional discrimination-the critical inquiry for
ascertaining violations of the Equal Protection Clause. The
judiciary is fully competent to make independent determinations
concerning the existence of state action without the unnecessary
and misleading assistance of the social sciences.
Regardless of the relative quality of the schools, segregation
violated the Constitution because the State classified students
based on their race. Of course, segregation additionally harmed
black students by relegating them to schools with substandard
facilities and resources. But neutral policies, such as local
school assignments, do not offend the Constitution when individual
private choices concerning work or residence produce schools with
high black populations. See
Keyes v.
School Dist.
No.1, 413 U. S., at 211. The Constitution does not prevent
individuals from choosing to live together, to work together, or to
send their children to school together, so long as the State does
not interfere with their choices on the basis of race.
Given that desegregation has not produced the predicted leaps
forward in black educational achievement, there is no
122
reason to think that black students cannot learn as well when
surrounded by members of their own race as when they are in an
integrated environment. Indeed, it may very well be that what has
been true for historically black colleges is true for black middle
and high schools. Despite their origins in "the shameful history of
state-enforced segregation," these institutions can be "'both a
source of pride to blacks who have attended them and a source of
hope to black families who want the benefits of ... learning for
their children.'"
Fordice, 505 U. S., at 748 (THOMAS, J.,
concurring) (citation omitted). Because of their "distinctive
histories and traditions,"
ibid., black schools can function
as the center and symbol of black communities, and provide examples
of independent black leadership, success, and achievement.
Thus, even if the District Court had been on firmer ground in
identifying a link between the KCMSD's pre-1954
de jure
segregation and the present "racial isolation" of some of the
district's schools, mere
de facto segregation (unaccompanied
by discriminatory inequalities in educational resources) does not
constitute a continuing harm after the end of
de jure
segregation. "Racial isolation" itself is not a harm; only
state-enforced segregation is. After all, if separation itself is a
harm, and if integration therefore is the only way that blacks can
receive a proper education, then there must be something inferior
about blacks. Under this theory, segregation injures blacks because
blacks, when left on their own, cannot achieve. To my way of
thinking, that conclusion is the result of a jurisprudence based
upon a theory of black inferiority.
This misconception has drawn the courts away from the important
goal in desegregation. The point of the Equal Protection Clause is
not to enforce strict race-mixing, but to ensure that blacks and
whites are treated equally by the State without regard to their
skin color. The lower courts should not be swayed by the easy
answers of social science,
123
nor should they accept the findings, and the assumptions, of
sociology and psychology at the price of constitutional
principle.
II
We have authorized the district courts to remedy past
de
jure segregation by reassigning students in order to eliminate or
decrease observed racial imbalances, even if present methods of
pupil assignment are facially neutral. See
Swann v.
Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971);
Green v.
School Bd. of New Kent Cty., 391 U. S. 430 (1968). The
District Court here merely took this approach to its logical next
step. If racial proportions are the goal, then schools must improve
their facilities to attract white students until the district's
racial balance is restored to the "right" proportions. Thus, fault
for the problem we correct today lies not only with a twisted
theory of racial injuries, but also with our approach to the
remedies necessary to correct racial imbalances.
The District Court's unwarranted focus on the psychological harm
to blacks and on racial imbalances has been only half of the tale.
Not only did the court subscribe to a theory of injury that was
predicated on black inferiority, it also married this concept of
liability to our expansive approach to remedial powers. We have
given the federal courts the freedom to use any measure necessary
to reverse problemssuch as racial isolation or low educational
achievement-that have proven stubbornly resistant to government
policies. We have not permitted constitutional principles such as
federalism or the separation of powers to stand in the way of our
drive to reform the schools. Thus, the District Court here ordered
massive expenditures by local and state authorities, without
congressional or executive authorization and without any indication
that such measures would attract whites back to KCMSD or raise
KCMSD test scores. The time has come for us to put the genie back
in the bottle.
124
A
The Constitution extends "[t]he judicial Power of the United
States" to "all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made ...
under their Authority." Art. III, §§ 1, 2. I assume for purposes of
this case that the remedial authority of the federal courts is
inherent in the "judicial Power," as there is no general equitable
remedial power expressly granted by the Constitution or by statute.
As with any inherent judicial power, however, we ought to be
reluctant to approve its aggressive or extravagant use, and instead
we should exercise it in a manner consistent with our history and
traditions. See
Chambers v.
NASCO, Inc., 501 U. S. 32, 63-76 (1991)
(KENNEDY, J., dissenting);
Young v.
United States ex rel.
Vuitton et Fils S.
A., 481 U. S. 787, 815-825
(1987) (SCALIA, J., concurring in judgment).
Motivated by our worthy desire to eradicate segregation,
however, we have disregarded this principle and given the courts
unprecedented authority to shape a remedy in equity. Although at
times we have invalidated a decree as beyond the bounds of an
equitable remedy, see
Milliken v.
Bradley, 418 U. S. 717 (1974)
(Milliken I), these instances have been far outnumbered by
the expansions in the equity power. In
United States v.
Montgomery County Bd. of Ed., 395 U. S. 225 (1969), for
example, we allowed federal courts to desegregate faculty and staff
according to specific mathematical ratios, with the ultimate goal
that each school in the system would have roughly the same
proportions of white and black faculty. In
Swann v.
Charlotte-Mecklenburg Bd. of Ed., supra, we permitted
federal courts to order busing, to set racial targets for school
populations, and to alter attendance zones. And in
Milliken
v.
Bradley, 433 U. S. 267 (1977)
(Milliken II), we approved the use of remedial or
compensatory education programs paid for by the State.
In upholding these court-ordered measures, we indicated that
trial judges had virtually boundless discretion in craft-
125
ing remedies once they had identified a constitutional
violation. As
Swann put it, "[o]nce a right and a violation
have been shown, the scope of a district court's equitable powers
to remedy past wrongs is broad, for breadth and flexibility are
inherent in equitable remedies." 402 U. S., at 15. We did say that
"the nature of the violation determines the scope of the remedy,"
id., at 16, but our very next sentence signaled how weak that
limitation was: "In default by the school authorities of their
obligation to proffer acceptable remedies, a district court has
broad power to fashion a remedy that will assure a unitary school
system,"
ibid.
It is perhaps understandable that we permitted the lower courts
to exercise such sweeping powers. Although we had authorized the
federal courts to work toward "a system of determining admission to
the public schools on a nonracial basis" in
Brown v.
Board of Education, 349 U. S. 294, 300301
(1955)
(Brown II), resistance to
Brown I produced
little desegregation by the time we decided
Green v.
School Bd. of New Kent Cty., supra. Our impatience with the
pace of desegregation and with the lack of a good-faith effort on
the part of school boards led us to approve such extraordinary
remedial measures. But such powers should have been temporary and
used only to overcome the widespread resistance to the dictates of
the Constitution. The judicial overreaching we see before us today
perhaps is the price we now pay for our approval of such
extraordinary remedies in the past.
Our prior decision in this litigation suggested that we would
approve the continued use of these expansive powers even when the
need for their exercise had disappeared. In
Missouri v.
Jenkins, 495 U.
S. 33 (1990)
(Jenkins II), the District Court in this
litigation had ordered an increase in local property taxes in order
to fund its capital improvements plan. KCMSD, which had been
ordered by the Court to finance 25% of the plan, could not pay its
share due to state constitutional and statutory provisions placing
a cap on property taxes.
Id., at 38, 41. Although we held
that principles
126
of comity barred the District Court from imposing the tax
increase itself (except as a last resort), we also concluded that
the court could order KCMSD to raise taxes, and could enjoin the
state laws preventing KCMSD from doing so. With little analysis, we
held that "a court order directing a local government body to levy
its own taxes is plainly a judicial act within the power of a
federal court."
Id., at 55.
Our willingness to unleash the federal equitable power has
reached areas beyond school desegregation. Federal courts have used
"structural injunctions," as they are known, not only to supervise
our Nation's schools, but also to manage prisons, see
Hutto
v.
Finney, 437
U. S. 678 (1978), mental hospitals,
Thomas S. v.
Flaherty, 902 F.2d
250 (CA4), cert. denied, 498 U. S. 951 (1990), and public
housing,
Hills v.
Gautreaux, 425 U. S. 284 (1976). See
generally D. Horowitz, The Courts and Social Policy 4-9 (1977).
Judges have directed or managed the reconstruction of entire
institutions and bureaucracies, with little regard for the inherent
limitations on their authority.
B
Such extravagant uses of judicial power are at odds with the
history and tradition of the equity power and the Framers' design.
The available historical records suggest that the Framers did not
intend federal equitable remedies to reach as broadly as we have
permitted. Anticipating the growth of our modern doctrine, the
Anti-Federalists criticized the Constitution because it might be
read to grant broad equitable powers to the federal courts. In
response, the defenders of the Constitution "sold" the new
framework of government to the public by espousing a narrower
interpretation of the equity power. When an attack on the
Constitution is followed by an open Federalist effort to narrow the
provision, the appropriate conclusion is that the drafters and
ratifiers of the Constitution approved the more limited
construction offered in response. See
McIntyre v.
Ohio
127
Elections Comm'n, 514 U. S. 334, 367 (1995)
(THOMAS, J., concurring in judgment).
The rise of the English equity courts as an alternative to the
rigors of the common law, and the battle between the courts of
equity and the courts of common law, is by now a familiar tale. See
T. Plucknett, A Concise History of the Common Law 191-198, 673-694
(5th ed. 1956). By the middle of the 18th century, equity had
developed into a precise legal system encompassing certain
recognized categories of cases, such as those involving special
property forms (trusts) or those in which the common law did not
provide relief (fraud, forgery, or mistake). See 5 W. Holdsworth,
History of English Law 300-338 (1927); S. Milsom, Historical
Foundations of the Common Law 85-87 (1969); J. Baker, An
Introduction to English Legal History 93-95 (2d ed. 1979). In this
fixed system, each of these specific actions then called for a
specific equitable remedy.
Blackstone described the principal differences between courts of
law and courts of equity as lying only in the "modes of
administering justice," -"in the mode of proof, the mode of trial,
and the mode of relief." 3 W. Blackstone, Commentaries on the Laws
of England 436 (1768). As to the last, the English jurist noted
that courts of equity held a concurrent jurisdiction when there is
a "want of a more specific remedy, than can be obtained in the
courts of law."
Id., at 438. Throughout his discussion,
Blackstone emphasized that courts of equity must be governed by
rules and precedents no less than the courts of law. "[I]f a court
of equity were still at sea, and floated upon the occasional
opinion which the judge who happened to preside might entertain of
conscience in every particular case, the inconvenience that would
arise from this uncertainty, would be a worse evil than any
hardship that could follow from rules too strict and inflexible."
Id., at 440. If their remedial discretion had not been
cabined, Blackstone warned, equity courts would have under-
128
mined the rule of law and produced arbitrary government. "[The
judiciary's] powers would have become too arbitrary to have been
endured in a country like this, which boasts of being governed in
all respects by law and not by will."
Ibid. (footnote
omitted); see also 1
id., at 61-62.3
So cautioned, the Framers approached equity with suspicion. As
Thomas Jefferson put it: "Relieve the judges from the rigour of
text law, and permit them, with pretorian discretion, to wander
into it's equity, and the whole legal system becomes incertain." 9
Papers of Thomas Jefferson 71 (J. Boyd ed. 1954). Suspicion of
judicial discretion led to criticism of Article III during the
ratification of the Constitution. Anti-Federalists attacked the
Constitution's extension of the federal judicial power to "Cases,
in Law and Equity," arising under the Constitution and federal
statutes. According to the Anti-Federalists, the reference to
equity granted federal judges excessive discretion to deviate from
the requirements of the law. Said the "Federal Farmer," "by thus
joining the word equity with the word law, if we mean any thing, we
seem to mean to give the judge a discretionary power." Federal
Farmer No. 15, Jan. 18, 1788, in 2 The Complete AntiFederalist 322
(H. Storing ed. 1981) (hereinafter Storing). He hoped that the
Constitution's mention of equity jurisdiction was not "intended to
lodge an arbitrary power or discretion in the judges, to decide as
their conscience, their opinions, their caprice, or their politics
might dictate."
Id., at 322-323.4 Another Anti-Federalist,
Brutus, argued that the
3 As Blackstone wrote: "[A] set of great and eminent lawyers ...
have by degrees erected the system of relief administered by a
court of equity into a regular science, which cannot be attained
without study and experience, any more than the science of law: but
from which, when understood, it may be known what remedy a suitor
is entitled to expect, and by what mode of suit, as readily and
with as much precision, in a court of equity as in a court of law."
3 Blackstone, at 440-441.
4 The Federal Farmer particularly feared the combination of
equity and law in the same federal courts: "It is a very dangerous
thing to vest in the same judge power to decide on the law, and
also general powers in
129
equity power would allow federal courts to "explain the
constitution according to the reasoning spirit of it, without being
confined to the words or letter." Brutus No. 11, Jan. 31,
1788,
id., at 419. This, predicted Brutus, would result in the growth
of federal power and the "entire subversion of the legislative,
executive and judicial powers of the individual states."
Id., at 420. See G. McDowell, Equity and the Constitution
43-44 (1982).
These criticisms provoked a Federalist response that explained
the meaning of Article Ill's words. Answering the Anti-Federalist
challenge in The Federalist Papers, Alexander Hamilton described
the narrow role that the federal judicial power would play.
Initially, Hamilton conceded that the federal courts would have
some freedom in interpreting the laws and that federal judges would
have lifetime tenure. The Federalist No. 78, p. 528 (J. Cooke ed.
1961). Nonetheless, Hamilton argued (as Blackstone had in
describing the English equity courts) that rules and established
practices would limit and control the judicial power: "To avoid an
arbitrary discretion in the courts, it is indispensable that they
should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that comes
before them."
Id., at 529. Cf. 1 J. Story, Commentaries on
Equity Jurisprudence §§ 18-20, pp. 15-17 (1. Redfield 9th ed.
1866). Hamilton emphasized that "[t]he great and primary use of a
court of equity is to give relief
in extraordinary cases,"
and that "the principles by which that relief is governed are now
reduced to a regular system." The Federalist No. 83, at 569, and
n.
equity; for if the law restrain him, he is only to step into his
shoes of equity, and give what judgment his reason or opinion may
dictate; we have no precedents in this country, as yet, to regulate
the divisions in equity as in Great Britain; equity, therefore, in
the supreme court for many years will be mere discretion." Federal
Farmer No.3, Oct. 10,1787, in 2 Storing 244. In such a system, the
Anti-Federalist writer concluded, there would not be "a spark of
freedom" to be found.
Ibid.
130
In response to Anti-Federalist concerns that equity would permit
federal judges an unchecked discretion, Hamilton explicitly relied
upon the precise nature of the equity system that prevailed in
England and had been transplanted in America. Equity jurisdiction
was necessary, Hamilton argued, because litigation "between
individuals" often would contain claims of
"fraud, accident,
trust or
hardship, which would render the matter an
object of equitable, rather than of legal jurisdiction."
Id., No. 80, at 539. "In such cases," Hamilton concluded,
"where foreigners were concerned on either side, it would be
impossible for the federal judicatories to do justice without an
equitable, as well as a legal jurisdiction."
Id., at 540.
Thus, Hamilton sought to narrow the expansive Anti-Federalist
reading of inherent judicial equity power by demonstrating that the
defined nature of the English and colonial equity system-with its
specified claims and remedies-would continue to exist under the
federal judiciary. In line with the prevailing understanding of
equity at the time, Hamilton described Article III "equity" as a
jurisdiction over certain types of cases rather than as a broad
remedial power. Hamilton merely repeated the well-known principle
that equity would be controlled no less by rules and practices than
was the common law.
In light of this historical evidence, it should come as no
surprise that there is no early record of the exercise of broad
remedial powers. Certainly there were no "structural injunctions"
issued by the federal courts, nor were there any examples of
continuing judicial supervision and management of governmental
institutions. Such exercises of judicial power would have appeared
to violate principles of state sovereignty and of the separation of
powers as late in the day as the turn of the century. "Born out of
the desegregation litigation in the 1950's and 1960's, suits for
affirmative injunctions were virtually unknown when the Court
decided
Ex parte Young, [
209 U. S. 123, 158
(1908)]." Dwyer, Pendent Jurisdiction and the Eleventh Amendment,
75 Calif. L. Rev.
131
129, 162 (1987) (footnotes omitted). Indeed, it appears that the
Framers continued to follow English equity practice well after the
Ratification. See,
e. g., Robinson v.
Campbell, 3
Wheat. 212, 221-223 (1818). At the very least, given the
Federalists' public explanation during the ratification of the
federal equity power, we should exercise the power to impose
equitable remedies only sparingly, subject to clear rules guiding
its use.
C
Two clear restraints on the use of the equity power-federalism
and the separation of powers-derive from the very form of our
Government. Federal courts should pause before using their inherent
equitable powers to intrude into the proper sphere of the States.
We have long recognized that education is primarily a concern of
local authorities. "[L]ocal autonomy of school districts is a vital
national tradition."
Dayton Bd. of Ed. v.
Brinkman,
433 U. S. 406,
410 (1977); see also
United States v.
Lopez, 514 U. S. 549, 580 (1995)
(KENNEDY, J., concurring);
Milliken I, 418 U. S., at
741-742; San Antonio Independent School Dist. v.
Rodriguez, 411
U. S. 1, 50 (1973);
ante, at 113 (O'CONNOR, J.,
concurring). A structural reform decree eviscerates a State's
discretionary authority over its own program and budgets and forces
state officials to reallocate state resources and funds to the
desegregation plan at the expense of other citizens, other
government programs, and other institutions not represented in
court. See Dwyer,
supra, at 163. When district courts seize
complete control over the schools, they strip state and local
governments of one of their most important governmental
responsibilities, and thus deny their existence as independent
governmental entities.
Federal courts do not possess the capabilities of state and
local governments in addressing difficult educational problems.
State and local school officials not only bear the responsibility
for educational decisions, they also are better equipped than a
single federal judge to make the day-to-day
132
policy, curricular, and funding choices necessary to bring a
school district into compliance with the Constitution. See
Wright v.
Council of Emporia, 407 U. S. 451, 477-478
(1972) (Burger, C. J., dissenting).5 Federal courts simply cannot
gather sufficient information to render an effective decree, have
limited resources to induce compliance, and cannot seek political
and public support for their remedies. See generally P. Schuck,
Suing Government 150-181 (1983). When we presume to have the
institutional ability to set effective educational, budgetary, or
administrative policy, we transform the least dangerous branch into
the most dangerous one.
The separation of powers imposes additional restraints on the
judiciary's exercise of its remedial powers. To be sure, this is
not a case of one branch of Government encroaching on the
prerogatives of another, but rather of the power of the Federal
Government over the States. Nonetheless, what the federal courts
cannot do at the federal level they cannot do against the States;
in either case, Article III courts are constrained by the inherent
constitutional limitations on their powers. There simply are
certain things that courts, in order to remain courts, cannot and
should not do. There
5 Certain aspects of this desegregation plan-for example,
compensatory educational programs and orders that the State pay for
half of the costscome perilously close to abrogating the State's
Eleventh Amendment immunity from federal money damages awards. See
Edelman v.
Jordan, 415 U. S. 651, 677 (1974)
("[A] federal court's remedial power ... may not include a
retroactive award which requires the payment of funds from the
state treasury"). Although we held in
Milliken II, 433 U. S. 267 (1977),
that such remedies did not run afoul of the Eleventh Amendment,
id., at 290, it is difficult to see how they constitute purely
prospective relief rather than retrospective compensation. See P.
Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and
Wechsler's The Federal Courts and the Federal System 1191-1192 (3d
ed. 1988). Of course, the state treasury inevitably must fund a
State's compliance with injunctions commanding prospective relief,
see
Edelman, supra, at 668, but that does not require a
State to supply money to comply with orders that have a
backwardlooking, compensatory purpose.
133
is no difference between courts running school systems or
prisons and courts running Executive Branch agencies.
In this case, not only did the District Court exercise the
legislative power to tax, it also engaged in budgeting, staffing,
and educational decisions, in judgments about the location and
esthetic quality of the schools, and in administrative oversight
and monitoring. These functions involve a legislative or executive,
rather than a judicial, power. See generally
Jenkins II, 495
U. S., at 65-81 (KENNEDY, J., concurring in part and concurring in
judgment); Nagel, Separation of Powers and the Scope of Federal
Equitable Remedies, 30 Stan. L. Rev. 661 (1978). As Alexander
Hamilton explained the limited authority of the federal courts:
"The courts must declare the sense of the law; and if they should
be disposed to exercise WILL instead of JUDGMENT, the consequence
would equally be the substitution of their pleasure to that of the
legislative body." The Federalist No. 78, at 526. Federal judges
cannot make the fundamentally political decisions as to which
priorities are to receive funds and staff, which educational goals
are to be sought, and which values are to be taught. When federal
judges undertake such local, day-to-day tasks, they detract from
the independence and dignity of the federal courts and intrude into
areas in which they have little expertise. Cf. Mishkin, Federal
Courts as State Reformers, 35 Wash. & Lee L. Rev. 949
(1978).
It is perhaps not surprising that broad equitable powers have
crept into our jurisprudence, for they vest judges with the
discretion to escape the constraints and dictates of the law and
legal rules. But I believe that we must impose more precise
standards and guidelines on the federal equitable power, not only
to restore predictability to the law and reduce judicial
discretion, but also to ensure that constitutional remedies are
actually targeted toward those who have been injured.
134
D
The dissent's approval of the District Court's treatment of
salary increases is typical of this Court's failure to place limits
on the equitable remedial power. The dissent frames the inquiry
thus: "The only issue, then, is whether the salary increases
ordered by the District Court have been reasonably related to
achieving" the goal of remedying a systemwide reduction in student
achievement, "keeping in mind the broad discretion enjoyed by the
District Court in exercising its equitable powers."
Post, at
155. In response to its question, the dissent concludes that "it is
difficult to see how the District Court abused its discretion" in
either the 1992 or 1993 orders, ibid., and characterizes the lower
court's orders as "beyond reproach,"
post, at 158. When the
standard of review is as vague as whether "federal-court decrees
... directly address and relate to the constitutional violation,"
Milliken II, 433 U. S., at 281-282, it is difficult to ever
find a remedial order "unreasonable." Such criteria provide
district courts with little guidance, and provide appellate courts
few principles with which to review trial court decisions. If the
standard reduces to what one believes is a "fair" remedy, or what
vaguely appears to be a good "fit" between violation and remedy,
then there is little hope of imposing the constraints on the equity
power that the Framers envisioned and that our constitutional
system requires.
Contrary to the dissent's conclusion, the District Court's
remedial orders are in tension with two commonsense principles.
First, the District Court retained jurisdiction over the
implementation and modification of the remedial decree, instead of
terminating its involvement after issuing its remedy. Although
briefly mentioned in
Brown II as a temporary measure to
overcome local resistance to desegregation, 349 U. S., at 301
("During this period of transition, the courts will retain
jurisdiction"), this concept of continuing judicial involvement has
permitted the District Courts to revise their remedies constantly
in order to reach some broad, ab-
135
stract, and often elusive goal. Not only does this approach
deprive the parties of finality and a clear understanding of their
responsibilities, but it also tends to inject the judiciary into
the day-to-day management of institutions and local policies-a
function that lies outside of our Article III competence. Cf.
Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353
(1978).
Much of the District Court's overreaching in this case occurred
because it employed this hit-or-miss method to shape, and reshape,
its remedial decree.6 Using its authority of continuing
jurisdiction, the court pursued its goal of decreasing "racial
isolation" regardless of the cost or of the difficulties of
engineering demographic changes. Wherever possible, district courts
should focus their remedial discretion on devising and implementing
a unified remedy in a single decree. This method would still
provide the lower courts with
6 First, the District Court set out to achieve some unspecified
levels of racial balance in the KCMSD schools and to raise the test
scores of the school districts as a whole. 639 F. Supp. 19, 24, 38
(WD Mo. 1985). In order to achieve that goal, the court ordered
quality education programs to address the "system wide reduction in
student achievement" caused by segregation, even though the court
never specified how or to what extent the dual system had actually
done so.
Id., at 46-51. After the State had spent $220
million and KCMSD had achieved a AAA rating, see
ante, at
75-76, the District Court decided that even further measures were
needed. In 1986, it ordered a massive magnet school and capital
improvement plan to attract whites into KCMSD. 1 App. 130-193. In
1987, the District Court decided that KCMSD needed better
instructional staff and ordered salary assistance for teachers.
Ante, at 78. In 1992, the District Court found that KCMSD
was having trouble attracting faculty and staff, and ordered a
round of salary increases for virtually all employees.
Ante,
at 80. Every year the District Court holds a proceeding to review
budget proposals and educational policies for KCMSD, and it has
formed a "desegregation monitoring committee" to assess the
implementation of its decrees. One need only review the District
Court's first remedial order in 1984 to comprehend the level of
detail with which it has made decisions concerning construction,
facilities, staffing, and educational policy. 639 F. Supp. 19; see
also
Missouri v.
Jenkins, 495 U. S. 33, 60-61 (1990)
(KENNEDY, J., concurring in part and concurring in judgment).
136
substantial flexibility to tailor a remedy to fit a violation,
and courts could employ their contempt power to ensure compliance.
To ensure that they do not overstep the boundaries of their Article
III powers, however, district courts should refrain from exercising
their authority in a manner that supplants the proper sphere
reserved to the political branches, who have a coordinate duty to
enforce the Constitution's dictates, and to the States, whose
authority over schools we have long sought to preserve. Only by
remaining aware of the limited nature of its remedial powers, and
by giving the respect due to other governmental authorities, can
the judiciary ensure that its desire to do good will not tempt it
into abandoning its limited role in our constitutional
Government.
Second, the District Court failed to target its equitable
remedies in this case specifically to cure the harm suffered by the
victims of segregation. Of course, the initial and most important
aspect of any remedy will be to eliminate any invidious racial
distinctions in matters such as student assignments,
transportation, staff, resource allocation, and activities. This
element of most desegregation decrees is fairly straightforward and
has not produced many examples of overreaching by the district
courts. It is the "compensatory" ingredient in many desegregation
plans that has produced many of the difficulties in the case before
us.
Having found that segregation "has caused a system wide
reduction in student achievement in the schools of the KCMSD," 639
F. Supp., at 24, the District Court ordered the series of magnet
school plans, educational programs, and capital improvements that
the Court criticizes today because of their interdistrict nature.
In ordering these programs, the District Court exceeded its
authority by benefiting those who were not victims of
discriminatory conduct. KCMSD as a whole may have experienced
reduced achievement levels, but raising the test scores of the
entire district is a goal that is not sufficiently tailored
to restoring the
victims of segregation to the position they
would have occupied absent
137
discrimination. A school district cannot be discriminated
against on the basis of its race, because a school district has no
race. It goes without saying that only individuals can suffer from
discrimination, and only individuals can receive the remedy.
Of course, a district court may see fit to order necessary
remedies that have the side effect of benefiting those who were not
victims of segregation. But the court cannot order broad remedies
that indiscriminately benefit a school district as a whole, rather
than the individual students who suffered from discrimination. Not
only do such remedies tend to indicate "efforts to achieve broader
purposes lying beyond" the scope of the violation,
Swann,
402 U. S., at 22, but they also force state and local governments
to work toward the benefit of those who have suffered no harm from
their actions.
To ensure that district courts do not embark on such broad
initiatives in the future, we should demand that remedial decrees
be more precisely designed to benefit only those who have been
victims of segregation. Race-conscious remedies for discrimination
not only must serve a compelling governmental interest (which is
met in desegregation cases), but also must be narrowly tailored to
further that interest. See
Richmond v. J.
A. Croson
Co., 488 U. S.
469, 509-510 (1989) (plurality opinion). In the absence of
special circumstances, the remedy for
de jure segregation
ordinarily should not include educational programs for students who
were not in school (or were even alive) during the period of
segregation. Although I do not doubt that all KCMSD students
benefit from many of the initiatives ordered by the court below, it
is for the democratically accountable state and local officials to
decide whether they are to be made available even to those who were
never harmed by segregation.
III
This Court should never approve a State's efforts to deny
students, because of their race, an equal opportunity for an
138
education. But the federal courts also should avoid using racial
equality as a pretext for solving social problems that do not
violate the Constitution. It seems apparent to me that the District
Court undertook the worthy task of providing a quality education to
the children of KCMSD. As far as I can tell, however, the District
Court sought to bring new funds and facilities into the KCMSD by
finding a constitutional violation on the part of the State where
there was none. Federal courts should not lightly assume that
States have caused "racial isolation" in 1984 by maintaining a
segregated school system in 1954. We must forever put aside the
notion that simply because a school district today is black, it
must be educationally inferior.
Even if segregation were present, we must remember that a
deserving end does not justify all possible means. The desire to
reform a school district, or any other institution, cannot so
captivate the judiciary that it forgets its constitutionally
mandated role. Usurpation of the traditionally local control over
education not only takes the judiciary beyond its proper sphere, it
also deprives the States and their elected officials of their
constitutional powers. At some point, we must recognize that the
judiciary is not omniscient, and that all problems do not require a
remedy of constitutional proportions.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The Court's process of orderly adjudication has broken down in
this case. The Court disposes of challenges to only two of the
District Court's many discrete remedial orders by declaring that
the District Court erroneously provided an interdistrict remedy for
an intradistrict violation. In doing so, it resolves a foundational
issue going to one element of the District Court's decree that we
did not accept for review in this case, that we need not reach in
order to answer the questions that we did accept for review, and
that we specifi-
139
cally refused to consider when it was presented in a prior
petition for certiorari. Since, under these circumstances, the
respondent school district and pupils naturally came to this Court
without expecting that a fundamental premise of a portion of the
District Court's remedial order would become the focus of the case,
the essence of the Court's misjudgment in reviewing and repudiating
that central premise lies in its failure to have warned the
respondents of what was really at stake. This failure lulled the
respondents into addressing the case without sufficient attention
to the foundational issue, and their lack of attention has now
infected the Court's decision.
No one on the Court has had the benefit of briefing and argument
informed by an appreciation of the potential breadth of the ruling.
The deficiencies from which we suffer have led the Court
effectively to overrule a unanimous constitutional precedent of 20
years' standing, which was not even addressed in argument, was
mentioned merely in passing by one of the parties, and discussed by
another of them only in a misleading way.
The Court's departures from the practices that produce informed
adjudication would call for dissent even in a simple case. But in
this one, with a trial history of more than 10 years of litigation,
the Court's failure to provide adequate notice of the issue to be
decided (or to limit the decision to issues on which certiorari was
clearly granted) rules out any confidence that today's result is
sound, either in fact or in law.
I
In 1984, 30 years after our decision in
Brown v.
Board
of Education, 347
U. S. 483 (1954), the District Court found that the State of
Missouri and the Kansas City, Missouri, School District (KCMSD) had
failed to reform the segregated scheme of public school education
in the KCMSD, previously mandated by the State, which had required
black and white children to be taught separately according to race.
Jenkins
140
v.
Missouri, 593 F. Supp. 1485, 1490-1494, 1503-1505 (WD
Mo. 1984).1 After
Brown, neither the State nor the KCMSD
moved to dismantle this system of separate education "root and
branch," id., at 1505, despite their affirmative obligation to do
that under the Constitution.
Green v.
School Bd. of New
Kent Cty., 391 U.
S. 430, 437-438 (1968). "Instead, the [KCMSD] chose to operate
some completely segregated schools and some integrated ones,"
Jenkins, 593 F. Supp., at 1492, using devices like optional
attendance zones and liberal transfer policies to "allo[w]
attendance patterns to continue on a segregated basis."
Id.,
at 1494. Consequently, on the 20th anniversary of
Brown in
1974, 39 of the 77 schools in the KCMSD had student bodies that
were more than 90 percent black, and 80 percent of all black
schoolchildren in the KCMSD attended those schools. 593 F. Supp.,
at 14921493. Ten years later, in the 1983-1984 school year, 24
schools remained racially isolated with more than 90 percent black
enrollment.
Id., at 1493. Because the State and the KCMSD
intentionally created this segregated system of education, and
subsequently failed to correct it, the District Court concluded
that the State and the district had "defaulted in their obligation
to uphold the Constitution."
Id., at 1505.
Neither the State nor the KCMSD appealed this finding of
liability, after which the District Court entered a series of
remedial orders aimed at eliminating the vestiges of segrega-
1 In related litigation about the schools of St. Louis, the
Eighth Circuit has noted that "[b]efore the Civil War, Missouri
prohibited the creation of schools to teach reading and writing to
blacks. Act of February 16, 1847, § 1, 1847 Mo. Laws 103.
State-mandated segregation was first imposed in the 1865
Constitution, Article IX § 2. It was reincorporated in the Missouri
Constitution of 1945: Article IX specifically provided that
separate schools were to be maintained for 'white and colored
children.' In 1952, the Missouri Supreme Court upheld the
constitutionality of Article IX under the United States
Constitution. Article IX was not repealed until
1976."
Liddell v.
Missouri, 731 F.2d
1294, 1305-1306
(CA8 1984) (case citations and footnote
omitted).
141
tion. Since the District Court found that segregation had
caused, among other things, "a system wide
reduction in
student achievement in the schools of the KCMSD,"
Jenkins v.
Missouri, 639 F. Supp. 19, 24 (WD Mo. 1985) (emphasis in
original), it ordered the adoption, starting in 1985, of a series
of remedial programs to raise educational performance. As the Court
recognizes, the District Court acted well within the bounds of its
equitable discretion in doing so,
ante, at 90, 101; in
Milliken v.
Bradley, 433 U. S. 267 (1977)
(Milliken II), we held that a district court is authorized
to remedy all conditions flowing directly from the constitutional
violations committed by state or local officials, including the
educational deficits that result from a segregated school system
(programs aimed to correct those deficits are therefore frequently
referred to as
Milliken II programs).
Id., at 281283.
Nor was there any objection to the District Court's orders from the
State and the KCMSD, who agreed that it was" 'appropriate to
include a number of properly targeted educational programs in [the]
desegregation plan,'"
Jenkins, 639 F. Supp., at 24 (quoting
from the State's desegregation proposal). They endorsed many of the
initiatives directed at improving student achievement that the
District Court ultimately incorporated into its decree, including
those calling for the attainment of AAA status for the KCMSD (a
designation, conferred by the State Department of Elementary and
Secondary Education upon consideration of a limited number of
criteria, indicating "that a school system quantitatively and
qualitatively has the resources necessary to provide minimum basic
education to its students," id., at 26), full day kindergarten,
summer school, tutoring before and after school, early childhood
development, and reduction in class sizes.
Id., at
24-26.
Between 1985 and 1987 the District Court also ordered the
implementation of a magnet school concept, 1 App. 131-133 (Order of
Nov. 12, 1986), and extensive capital improvements to the schools
of the KCMSD.
Jenkins v.
Missouri, 672
142
F. Supp. 400, 405-408 (WD Mo. 1987); 1 App. 133-134 (Order of
Nov. 12, 1986);
Jenkins, 639 F. Supp., at 39-41. The
District Court found that magnet schools would not only serve to
remedy the deficiencies in student achievement in the KCMSD, but
would also assist in desegregating the district by attracting white
students back into the school system. See,
e. g., 1 App. 118
(Order of June 16, 1986) ("[C]ommitment, when coupled with quality
planning and sufficient resources can result in the establishment
of magnet schools which can attract non-minority enrollment as well
as be an integral part of district-wide improved student
achievement"); see also
Jenkins v.
Missouri,
855 F.2d
1295, 1301 (CA8 1988) ("The foundation of the plans adopted was
the idea that improving the KCMSD as a system would at the same
time compensate the blacks for the education they had been denied
and attract whites from within and without the KCMSD to formerly
black schools").
The District Court, finding that the physical facilities in the
KCMSD had "literally rotted,"
Jenkins, 672 F. Supp., at 411,
similarly grounded its orders of capital improvements in the
related remedial objects of improving student achievement and
desegregating the KCMSD.
Jenkins, 639 F. Supp., at 40 ("The
improvement of school facilities is an important factor in the
overall success of this desegregation plan. Specifically, a school
facility which presents safety and health hazards to its students
and faculty serves both as an obstacle to education as well as to
maintaining and attracting non-minority enrollment. Further,
conditions which impede the creation of a good learning climate,
such as heating deficiencies and leaking roofs, reduce the
effectiveness of the quality education components contained in this
plan"); see also
Jenkins, 855 F. 2d, at 1305 ("[T]he capital
improvements [are] required both to improve the education available
to the victims of segregation as well as to attract whites to the
schools").
143
As a final element of its remedy, in 1987 the District Court
ordered funding for increases in teachers' salaries as a step
toward raising the level of student achievement. "[I]t is essential
that the KCMSD have sufficient revenues to fund an operating budget
which can provide quality education, including a high quality
faculty."
Jenkins, 672 F. Supp., at 410. Neither the State
nor the KCMSD objected to increases in teachers' salaries as an
element of the comprehensive remedy, or to this cost as an item in
the desegregation budget.
In 1988, however, the State went to the Eighth Circuit with a
broad challenge to the District Court's remedial concept of magnet
schools and to its orders of capital improvements (though it did
not appeal the salary order), arguing that the District Court had
run afoul of
Milliken v.
Bradley, 418 U. S. 717 (1974)
(Milliken 1), by ordering an interdistrict remedy for an
intradistrict violation. The Eighth Circuit rejected the State's
position,
Jenkins, 855 F.2d
1295, and in 1989 the State petitioned for certiorari.
The State's petition presented two questions for review, one
challenging the District Court's authority to order a property tax
increase to fund its remedial program, the other going to the
legitimacy of the magnet school concept at the very foundation of
the Court's desegregation plan:
"For a purely intradistrict violation, the courts below have
ordered remedies-costing hundreds of millions of dollars-with the
stated goals of attracting more nonminority students to the school
district and making programs and facilities comparable to those in
neighboring districts ....
"The questio[n] presented [is] ....
" ... Whether a federal court, remedying an intradistrict
violation under Brown v. Board of Education, 347 U. S. 483 (1954),
may
144
"a) impose a duty to attract additional non-minority students to
a school district, and
"b) require improvements to make the district schools comparable
to those in surrounding districts." Pet. for Cert. in
Missouri v. Jenkins, O. T. 1988, No. 88-1150, p.
i.
We accepted the taxation question, and decided that while the
District Court could not impose the tax measure itself, it could
require the district to tax property at a rate adequate to fund its
share of the costs of the desegregation remedy.
Missouri v.
Jenkins, 495 U.
S. 33, 50-58 (1990). If we had accepted the State's broader,
foundational question going to the magnet school concept, we could
also have made an informed decision on whether that element of the
District Court's remedial scheme was within the limits of the
Court's equitable discretion in response to the constitutional
violation found. Each party would have briefed the question fully
and would have identified in some detail those items in the record
bearing on it. But none of these things happened. Instead of
accepting the foundational question in 1989, we denied certiorari
on it.
Missouri v.
Jenkins, 490 U. S. 1034.
The State did not raise that question again when it returned to
this Court with its 1994 petition for certiorari, which led to
today's decision. Instead, the State presented, and we agreed to
review, these two questions:
"1. Whether a remedial educational desegregation program
providing greater educational opportunities to victims of past de
jure segregation than provided anywhere else in the country
nonetheless fails to satisfy the Fourteenth Amendment (thus
precluding a finding of partial unitary status) solely because
student achievement in the District, as measured by results on
standardized test scores, has not risen to some unspecified
level?
"2. Whether a federal court order granting salary increases to
virtually every employee of a school district-
145
including non-instructional personnel-as a part of a school
desegregation remedy conflicts with applicable decisions of this
court which require that remedial components must directly address
and relate to the constitutional violation and be tailored to cure
the condition that offends the Constitution?" Pet. for Cert. i.
These questions focus on two discrete issues: the extent to
which a district court may look at students' test scores in
determining whether a school district has attained partial unitary
status as to its
Milliken II educational programs, and
whether the particular salary increases ordered by the District
Court constitute a permissible component of its remedy.
The State did not go beyond these discrete issues, and it framed
no broader, foundational question about the validity of the
District Court's magnet concept. The Court decides, however, that
it can reach that question of its own initiative, and it sees no
bar to this course in the provision of this Court's Rule 14.1 that
"[o]nly the questions set forth in the petition, or fairly included
therein, will be considered .... "
Ante, at 84-85. The
broader issue, the Court claims, is "fairly included" in the
State's salary question. But that claim does not survive
scrutiny.
The standard under Rule 14.1 is quite simple: as the Court
recognizes, we have held that an issue is fairly comprehended in a
question presented when the issue must be resolved in order to
answer the question. See
ibid., citing
Procunier v.
Navarette, 434
U. S. 555, 560, n. 6 (1978);
United States v.
Mendenhall, 446 U. S. 544, 551-552,
n. 5 (1980). That should be the end of the matter here, since the
State itself concedes that we can answer its salary and test-score
questions without addressing the soundness of the magnet element of
the District Court's underlying remedial scheme, see Brief for
Petitioners 18 ("each question [presented] can be dealt with on its
own terms ... "). While the Court ignores that concession, it is
patently correct. There
146
is no reason why we cannot take the questions as they come to
us; assuming the validity of the District Court's basic remedial
concept, we can determine the significance of test scores and
assess the salary orders in relation to that concept.
Of course, as we understand necessity in prudential matters like
this, it comes in degrees, and I would not deny that sometimes
differing judgments are possible about the need to go beyond a
question as originally accepted. But this is not even arguably such
a case. It is instead a case that presents powerful reasons to
confine discussion to the questions taken.2
Quite naturally, the respondents here chose not to devote any
significant attention to a question not raised, and they presumably
had no reason to designate for printing those portions of the
record bearing on an issue not apparently before us. And while
respondents seemingly gave some thought to the bare possibility
that the Court would choose
2JUSTICE O'CONNOR suggests that I am saying something
inconsistent with the position I took in
Bray v.
Alexandria Women's Health Clinic, 506 U. S. 263 (1993), see
ante, at 105, but her claim rests on a misunderstanding of
my position in that case. I did not think that in
Bray we
could reach the question whether respondents' claims fell within
the "prevention clause" of 42 U. S. C. § 1985(3) simply because the
question" 'was briefed, albeit sparingly, by the parties prior to
the first oral argument.'''
Ante, at 105. Rather, I said
that "[t]he applicability of the prevention clause is fairly
included within the questions presented, especially as restated by
respondents ... ."
Bray, supra, at 290 (SOUTER, J.,
concurring in judgment in part and dissenting in part). Thus the
question was literally before us (as JUSTICE O'CONNOR believes the
foundational question is before us under the second of the State's
questions). What is not debatable is that
Bray was not
preceded by prior litigation indicating we would not consider the
"prevention clause" issue, whereas this case was preceded by a
refusal to take the very foundational issue that JUSTICE O'CONNOR
argues is within the literal terms of the second question focusing
on salaries. See
supra, at 143-144. I obviously thought the
Court was wrong to reject supplemental briefing on the prevention
clause, but that rejection was a far cry from refusing to take the
issue.
147
to deal with the discrete questions by going beyond them to a
more comprehensive underlying issue, they were entitled to reject
that possibility as a serious one for the very reason that the
Court had already, in 1989, expressly refused to consider that
foundational issue when the State expressly attempted to raise it.
Our deliberate refusal to entertain so important an issue is and
ought to be a reasonable basis to infer that we will not
subsequently allow it to be raised on our own motion without saying
so in advance and giving notice to a party whose interests might be
adversely affected.
Thus the Court misses the point when it argues that the
foundational issue is in a sense antecedent to the specific ones
raised, and that those can be answered by finding error in some
element of the underlying remedial scheme. Even if the Court were
correct that the foundational issue could be reached under Rule
14.1, the critical question surely is whether that issue may fairly
be decided without clear warning, at the culmination of a course of
litigation in which this Court has specifically refused to consider
the issue and given no indication of any subsequent change of mind.
The answer is obviously no. And the Court's claim of necessity
rings particularly hollow when one considers that if it really were
essential to decide the foundational issue to address the two
questions that are presented, the Court could give notice to the
parties of its intention to reach the broader issue, and allow for
adequate briefing and argument on it. And yet the Court does none
of that, but simply decides the issue without any warning to
respondents.
If there is any doubt about the lack of fairness and prudence
displayed by the Court, it should disappear upon seeing two things:
first, how readily the questions presented can be answered on their
own terms, without giving any countenance to the State's now
successful attempt to " 'smugglee] additional questions into a case
after we grant[ed] certiorari,'"
Izumi Seimitsu Kogyo Kabushiki
Kaisha v.
U. S.
Philips Corp., 510 U. S. 27, 34 (1993),
quoting
Irvine v.
Cali-
148
fornia, 347
U. S. 128, 129 (1954) (plurality opinion of Jackson, J.); and,
second, how the Court's decision to go beyond those questions to
address an issue not adequately briefed or argued by one set of
parties leads it to render an opinion anchored in neither the
findings and evidence contained in the record, nor in controlling
precedent, which is squarely at odds with the Court's holding
today.
II A
The test-score question as it comes to us is one of word play,
not substance. While the Court insists that the District Court's
Order of June 17, 1992 (the only order relevant to the test-score
question on review here), "requir[ed] the State to continue to fund
the quality education programs because student achievement levels
[in the KCMSD] were still 'at or below national norms at many grade
levels' ... ,"
ante, at 100; see also
ante, at 73,
that order contains no discussion at all of student achievement
levels in the KCMSD in comparison to national norms, and in fact
does not explicitly address the subject of partial unitary status.
App. to Pet. for Cert. A-69 to A-75. The reference to test scores
"at or below national norms" comes from an entirely different and
subsequent order of the District Court (dated Apr. 16, 1993) which
is not under review. Its language presumably would not have been
quoted to us, if the Court of Appeals's opinion affirming the
District Court's June 17, 1992, order had not canvassed subsequent
orders and mentioned the District Court's finding of fact that the
"KCMSD is still at or below national norms at many grade levels,"
11 F.3d
755, 762 (CA8 1994), citing Order of Apr. 16, 1993, App. to
Pet. for Cert. A-130. In any event, what is important here is that
none of the District Court's or Court of Appeals's opinions or
orders requires a certain level of test scores before unitary
status can be found, or indicates that test scores are the only
thing standing between the State and a finding of uni-
149
tary status as to the KCMSD's
Milliken II programs.
Indeed, the opinion concurring in the denial of rehearing en bane
below (not mentioned by the Court, although it is certainly more
probative of the governing law in the Eighth Circuit than the
dissenting opinion on which the Court does rely) expressly disavows
any dispositive role for test scores:
"The dissent accepts, at least in part, the State's argument
that the district court adopted a student achievement goal,
measured by test scores, as the only basis for determining whether
past discrimination has been remedied .... When we deal with
student achievement in a quality education program in the context
of relieving a school district of court supervision, test results
must be considered. Test scores, however, must be only one factor
in the equation. Nothing in this court's opinion, the district
court's opinion, or the testimony of KCMSD's witnesses indicates
that test results were the only criteria used in denying the
State's claim that its obligation for the quality education
programs should be ended by a declaration they are unitary."
19 F.3d
393, 395 (1994) (Gibson, J., concurring in denial of rehearing
en bane).
If, then, test scores do not explain why there was no finding of
unitary status as to the
Milliken II programs, one may ask
what does explain it. The answer is quite straightforward. The
Court of Appeals refused to order the District Court to enter a
finding of partial unitary status as to the KCMSD's
Milliken
II programs (and apparently, the District Court did not speak
to the issue itself) simply because the State did not attempt to
make the showing required for that relief. As the Court recognizes,
ante, at 8889, we have established a clear set of procedures
to be followed by governmental entities seeking the partial
termination of a desegregation decree. In
Freeman v.
Pitts, 503 U. S. 467 (1992), we held that "[t]he duty and
responsibility
150
of a school district once segregated by law is to take all steps
necessary to eliminate the vestiges of the unconstitutional
de
jure system."
Id., at 485. Accordingly, before a
district court may grant a school district (or other governmental
entity) partial release from a desegregation decree, it must first
consider "whether there has been full and satisfactory compliance
with the decree in those aspects of the system where supervision is
to be withdrawn .... "
Id., at 491. Full and satisfactory
compliance, we emphasized in
Freeman, is to be measured by
"'whether the vestiges of past discrimination ha[ve] been
eliminated to the extent practicable.'''
Id., at 492,
quoting
Board of Ed. of Oklahoma City Public Schools v.
Dowell, 498 U.
S. 237, 249-250 (1991). The district court must then consider
"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 [or other governmental
entity] 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." 503 U. S., at 491. The burden
of showing that these conditions to finding partial unitary status
have been met rests (as one would expect) squarely on the
constitutional violator who seeks relief from the existing remedial
order.
Id., at 494.
While the Court recognizes the three-part showing that the State
must make under
Freeman in order to get a finding of partial
unitary status,
ante, at 88-89, it fails to acknowledge that
the State did not even try to make a
Freeman showing in the
litigation leading up to the District Court's Order of June 17,
1992. The District Court's order was triggered not by a motion for
partial unitary status filed by the State, but by a motion filed by
the KCMSD for approval of its desegregation plan for the 1992-1993
school year. See App. to Pet. for Cert. A-69. While the State's
response to
151
that motion suggested that the District Court should enter a
finding of partial unitary status as to the district's
Milliken II component of its decree, State's Response to
KCMSD Motion for Approval of Desegregation Plan for 1992-1993, pp.
1-20 (hereinafter State's Response), the State failed even to
allege its compliance with two of the three prongs of the
Freeman test.
The State did not claim that implementation of the
Milliken
II component of the decree had remedied the reduction in
student achievement in the KCMSD to the extent practicable; it
simply argued that various
Milliken II programs had been
implemented. State's Response 9-17. Accordingly, in the hearings
held by the District Court on the KCMSD's motion, the State's
expert witness testified only that the various
Milliken II
programs had been implemented and had increased educational
opportunity in the district. 2 App. 439-483. With the exception of
the "effective schools" program, he said nothing about the effects
of those programs on student achievement, and in fact admitted on
cross-examination that he did not have an opinion as to whether the
programs had remedied to the extent practicable the reduction in
student achievement caused by the segregation in the KCMSD.
"Q: Dr. Stewart, do you, testifying on behalf of the State ...
have an opinion as to whether or not the educational deficits that
you acknowledged were vestiges of the prior segregation have been
eliminated to the extent practicable in the Kansas City School
District?
"A: No, that's not the purpose of my testimony, Mr. Benson."
Id., at 483.
Nor did the State focus on its own good faith in complying with
the District Court's decree; it emphasized instead the district's
commitment to the decree and to the constitutional provisions on
which the decree rested. State's Response 8. The State, indeed,
said nothing to contradict the very find-
152
ings made elsewhere by the District Court that have called the
State's own commitment to the success of the decree into question.
See,
e. g., 1 App. 136 (Order of Nov. 12, 1986) ("[D]uring
the course of this lawsuit the Court has not been informed of one
affirmative act voluntarily taken by the Executive Department of
the State of Missouri or the Missouri General Assembly to aid a
school district that is involved in a desegregation program"); see
also App. to Pet. for Cert. A-123 (Order of Apr. 16, 1993) ("The
State, also a constitutional violator, has historically opposed the
implementation of any program offered to desegregate the KCMSD. The
Court recognizes that the State has had to bear the brunt of the
costs of desegregation due to the joint and severalliability
finding previously made by the Court. However, the State has
never offered the Court a viable, even tenable, alternative
and has been extremely antagonistic in its approach to effecting
the desegregation of the KCMSD") (emphasis in original).
Thus, it was the State's failure to meet or even to recognize
its burden under
Freeman that led the Court of Appeals to
reject the suggestion that it make a finding of partial unitary
status as to the district's
Milliken II education
programs:
"It is ... significant that the testimony of [the State's
expert] did no more than describe the successful establishment of
the several educational programs, but gave no indication of whether
these programs had succeeded in improving student achievement
....
"The only evidence before the district court with respect to the
degree of progress on elimination of vestiges of past
discrimination was at best that a start had been made. The evidence
on the record fell far short of establishing that such vestiges had
been eliminated to the extent practicable ....
153
" ... [Further, the] State did not try to prove that it has
demonstrated a good faith commitment to the whole of the court's
decree ....
" ... [T]he district court did not abuse its discretion in
continuing the quality education programs." 11 F. 3d, at 764-765
(citations omitted).
Examining only the first
Freeman prong, there can be no
doubt that the Court of Appeals was correct.
Freeman and
Dowell make it entirely clear that the central focus of this
prong of the unitary status enquiry is on effects: to the extent
reasonably possible, a constitutional violator must remedy the ills
caused by its actions before it can be freed of the court-ordered
obligations it has brought upon itself. Under the logic of the
State's arguments to the District Court, the moment the
Milliken
II programs were put in place, the State was at liberty to walk
away from them, no matter how great the remaining consequences of
segregation for educational quality or how great the potential for
curing them if state funding continued.
Looking ahead, if indeed the State believes itself entitled to a
finding of partial unitary status on the subject of educational
programs, there is an orderly procedural course for it to follow.
It may frame a proper motion for partial unitary status, and
prepare to make a record sufficient to allow the District Court and
the Court of Appeals to address the continued need for and efficacy
of the
Milliken II programs.
In the development of a proper unitary status record, test
scores will undoubtedly playa role. It is true, as the Court
recognizes, that all parties to this case agree that it would be
error to require that the students in a school district attain the
national average test score as a prerequisite to a finding of
partial unitary status, if only because all sorts of causes
independent of the vestiges of past school segregation might stand
in the way of the goal.
Ante, at 101-102. That
154
said, test scores will clearly be relevant in determining
whether the improvement programs have cured a deficiency in student
achievement to the practicable extent. The District Court has noted
(in the finding that the Court would read as a dispositive
requirement for unitary status) that while students' scores have
shown a trend of improvement, they remain at or below national
norms. App. to Pet. for Cert. A-131 (Order of Apr. 16, 1993). The
significance of this fact is subject to assessment. Depending, of
course, on other facts developed in the course of unitary status
proceedings, the improvement to less than the national average
might reasonably be taken to show that education programs are
having a good effect on student achievement, and that further
improvement can be expected. On the other hand, if test-score
changes were shown to have flattened out, that might suggest the
impracticability of any additional remedial progress. While the
significance of scores is thus open to judgment, the judgment is
not likely to be very sound unless it is informed by more of a
record than we have in front of us, and the Court's admonition that
the District Court should "sharply limit" its reliance on test
scores,
ante, at 101, should be viewed in this light.
B
The other question properly before us has to do with the
propriety of the District Court's recent salary orders. While the
Court suggests otherwise,
ante, at 84, 100, the District
Court did not ground its orders of salary increases solely on the
goal of attracting students back to the KCMSD. From the start, the
District Court has consistently treated salary increases as an
important element in remedying the systemwide reduction in student
achievement resulting from segregation in the KCMSD. As noted
above, the Court does not question this remedial goal, which we
expressly approved in
Milliken II. See
supra, at
141-143. The only issue, then, is whether the salary increases
ordered by the District Court have been reasonably related to
achieving
155
that goal, keeping in mind the broad discretion enjoyed by the
District Court in exercising its equitable powers.
The District Court first ordered KCMSD salary increases, limited
to teachers, in 1987, basing its decision on the need to raise the
level of student achievement. "[I]t is essential that the KCMSD
have sufficient revenues to fund an operating budget which can
provide quality education, including a high quality faculty."
Jenkins, 672 F. Supp., at 410. The State raised no objection
to the District Court's order, and said nothing about the issue of
salary increases in its 1988 appeal to the Eighth Circuit.
When the District Court's 1987 order expired in 1990, all
parties, including the State, agreed to a further order increasing
salaries for both instructional and noninstructional personnel
through the 1991-1992 school year. 1 App. 332337 (Order of July 23,
1990). In 1992 the District Court merely ordered that salaries in
the KCMSD be maintained at the same level for the following year,
rejecting the State's argument that desegregation funding for
salaries should be discontinued, App. to Pet. for Cert. A-76 to
A-93 (Order of June 25, 1992), and in 1993 the District Court
ordered small salary increases for both instructional and
noninstructional personnel through the end of the 1995-1996 school
year, App. to Pet. for Cert. A-94 to A-109 (Order of June 30,
1993).
It is the District Court's 1992 and 1993 orders that are before
us, and it is difficult to see how the District Court abused its
discretion in either instance. The District Court had evidence in
front of it that adopting the State's position and discontinuing
desegregation funding for salary levels would result in their
abrupt drop to 1986-1987 levels, with the resulting disparity
between teacher pay in the district and the nationwide level
increasing to as much as 40 to 45 percent, and a mass exodus of
competent employees likely taking place.
Id., at A-76, A-78
to A-91. Faced with this evidence, the District Court found that
continued desegregation funding of salaries, and small increases in
those salaries
156
over time, were essential to the successful implementation of
its remedial scheme, including the elevation of student
achievement:
"[I]n the absence of desegregation funding for salaries, the
District will not be able to implement its desegregation plan
....
"High quality personnel are necessary not only to implement
specialized desegregation programs intended to 'improve educational
opportunities and reduce racial isolation,' but also to 'ensure
that there is no diminution in the quality of its regular academic
program.' ...
" ... There is no question but that a salary roll back would
have effects that would drastically impair implementation of the
desegregation remedy.
" ... A salary roll back would result in excessive employee
turnover, a decline in the quality and commitment of work and an
inability of the KCMSD to achieve the objectives of the
desegregation plan." Id., at A-86 to A-91 (Order of June 25,
1992), quoting Jenkins, 855 F. 2d, at 1301, and
Jenkins, 672 F. Supp., at 410.
See also App. to Pet. for Cert. A-95 to A-97, A-101 to A-102
(Order of June 30, 1993). The Court of Appeals affirmed the
District Court's orders on the basis of these findings, again
taking special note of the importance of adequate salaries to the
remedial goal of improving student achievement:
"[Q]uality education programs and magnet schools [are] a part of
the remedy for the vestiges of segregation causing a system wide
reduction in student achievement in the KCMSD schools .... The
significant finding of the [district] court with respect to the
earlier funding order was that the salary increases were essential
to comply with the court's desegregation orders, and that high
157
quality teachers, administrators, and staff must be hired to
improve the de segregative attractiveness of KCMSD.
" ... It is evident that the district court had before it
substantial evidence of a statistically significant reduction in
the turnover rates for full-time employees, a dramatic increase in
the percentage of certified employees selecting KCMSD because of
the salary increases, and a significant decline in the number of
employees lost to other districts. Further, the court heard
testimony that the average performance evaluation for the
professional employees increased positively and significantly."
13 F.3d
1170, 1172-1174 (CAS 1993).
See also 11 F. 3d, at 766-769.
There is nothing exceptionable in the lower courts' findings
about the relationship between salaries and the District Court's
remedial objectives, and certainly nothing in the record suggests
obvious error as to the amounts of the increases ordered.3 If it is
tempting to question the place of salary increases for
administrative and maintenance personnel in a desegregation order,
the Court of Appeals addressed the temptation in specifically
affirming the District Court's finding that such personnel are
critical to the success of the desegregation effort, 13 F. 3d, at
1174 (referring to order of June 30, 1993, App. to Pet. for Cert.
A-l04), and did so in the circumstances of a district whose schools
have been plagued by leaking roofs, defective lighting, and
reeking
3 There is no claim of anything unreasonable in the salary
increases merely because the District Court has ordered them,
whereas they might otherwise have been set by collective
bargaining. For that matter, the Court of Appeals observed that the
District Court has not replaced collective bargaining in the KCMSD
with a rubber stamping of union requests, but rather has
"juridically pruned applications of funding that have been
presented to it," 13 F. 3d, at 1174, ordering salary increases that
have been far smaller than those requested by the union. See,
e. g., App. to Pet. for Cert. A-I02, A-104 to A-I06 (Order
of June 30, 1993).
158
lavatories. See
Jenkins, 855 F. 2d, at 1306;
Jenkins,
672 F. Supp., at 403-404. As for teachers' increases, the
District Court and the Court of Appeals were beyond reproach in
finding and affirming that in order to remedy the educational
deficits flowing from segregation in the KCMSD, "those persons
charged with implementing the [remedial] plan [must] be the most
qualified persons reasonably attainable," App. to Pet. for Cert.
A-102.
Indeed, the Court does not question the District Court's salary
orders insofar as they relate to the objective of raising the level
of student achievement in the KCMSD, but rather overlooks that
basis for the orders altogether. The Court suggests that the
District Court rested its approval of salary increases only on the
object of drawing students into the district's schools,
ante, at 91, and rejects the increases for that reason. I t
seems clear, however, that the District Court and the Court of
Appeals both viewed the salary orders as serving two complementary
but distinct purposes, and to the extent that the District Court
concludes on remand that its salary orders are justified by
reference to the quality of education alone, nothing in the Court's
opinion precludes those orders from remaining in effect.
III
The two discrete questions that we actually accepted for review
are, then, answerable on their own terms without any need to
consider whether the District Court's use of the magnet school
concept in its remedial plan is itself constitutionally vulnerable.
The capacity to deal thus with the questions raised, coupled with
the unfairness of doing otherwise without warning, are enough to
demand a dissent.
But there is more to fuel dissent. On its face, the Court's
opinion projects an appealing pragmatism in seeming to cut through
the details of many facts by applying a rule of law that can claim
both precedential support and intuitive sense, that there is error
in imposing an interdistrict remedy to
159
cure a merely intradistrict violation. Since the District Court
has consistently described the violation here as solely
intradistrict, and since the object of the magnet schools under its
plan includes attracting students into the district from other
districts, the Court's result seems to follow with the necessity of
logic, against which arguments about detail or calls for fair
warning may not carry great weight.
The attractiveness of the Court's analysis disappears, however,
as soon as we recognize two things. First, the District Court did
not mean by an "intradistrict violation" what the Court apparently
means by it today. The District Court meant that the violation
within the KCMSD had not led to segregation outside of it, and that
no other school districts had played a part in the violation. It
did not mean that the violation had not produced effects of any
sort beyond the district. Indeed, the record that we have indicates
that the District Court understood that the violation here did
produce effects spanning district borders and leading to greater
segregation within the KCMSD, the reversal of which the District
Court sought to accomplish by establishing magnet schools.4 Insofar
as the Court assumes that this
4 This was not the only, or even the principal, purpose of the
magnet schools. The District Court found that magnet schools would
assist in remedying the deficiencies in student achievement in the
KCMSD, see
supra, at 141-142. Moreover, while the Court
repeatedly describes the magnet school program as looking beyond
the boundaries of the district, the program is primarily aimed not
at drawing back white children whose parents have moved to another
district, but rather at drawing back children who attend private
schools while living within the geographical confines of the KCMSD,
whose population remains majority white,
Jenkins v.
Missouri, 855 F.2d
1295, 1302-1303
(CA8 1988). See 1 App. 132 (Order of
Nov. 12, 1986) ("Most importantly, the Court believes that the
proposed magnet plan is so attractive that it would draw
non-minority students from the private schools who have abandoned
or avoided the KCMSD, and draw in additional non-minority students
from the suburbs"). As such, a substantial impetus for the District
Court's remedy does not consider the world beyond district
boundaries at all, and much of the Court's opinion is of little
significance to the case before it.
160
was not so in fact, there is at least enough in the record to
cast serious doubt on its assumption. Second, the Court violates
existing case law even on its own apparent view of the facts, that
the segregation violation within the KCMSD produced no proven
effects, segregative or otherwise, outside it. Assuming this to be
true, the Court's decision that the rule against interdistrict
remedies for intradistrict violations applies to this case, solely
because the remedy here is meant to produce effects outside the
district in which the violation occurred, is flatly contrary to
established precedent.
A
The Court appears to assume that the effects of segregation were
wholly contained within the KCMSD, and based on this assumption
argues that any remedy looking beyond the district's boundaries is
forbidden. The Court's position rests on the premise that the
District Court and the Court of Appeals erred in finding that
segregation had produced effects outside the district, and hence
were in error when they treated the reversal of those effects as a
proper subject of the equitable power to eliminate the remaining
vestiges of the old segregation so far as practicable.
The Court has not shown the trial court and the Eighth Circuit
to be wrong on the facts, however, and on the record before us this
Court's factual assumption is at the very least a questionable
basis for removing one major foundation of the desegregation
decree. I do not, of course, claim to be in a position to say for
sure that the Court is wrong, for I, like the Court, am a victim of
an approach to the case uninformed by any warning that a
foundational issue would be dispositive. My sole point is that the
Court is not in any obvious sense correct, wherever the truth may
ultimately lie.
To be sure, the District Court found, and the Court of Appeals
affirmed, that the suburban school districts (SSD's) had taken no
action contributing to segregation in the KCMSD.
Jenkins v.
Missouri, 807 F.2d
657, 664, 668-670 (CA8 1986);
161
3 App. 723, 738 (Order of June 5, 1984). Those courts further
concluded that the constitutional violations committed by the State
and the KCMSD had not produced any significant segregative effects
in the SSD's, all of which have operated as unitary districts since
shortly after our decision in
Brown. Jenkins, 807 F. 2d, at
672, 678; 3 App. 813, 816. It was indeed on the basis of just these
findings that the District Court concluded that it was dealing with
an intradistrict violation, and, consistently with our decision in
Milli
ken I, refused to consolidate the SSD's with the KCMSD.
Jenkins, 807 F. 2d, at 660-661, 674; 3 App. 721-723, 725,
810-811.
There is no inconsistency between these findings and the
possibility, however, that the actions of the State and the KCMSD
produced significant nonsegregative effects outside the KCMSD that
led to greater segregation within it. To the contrary, the District
Court and the Court of Appeals concurred in finding that "the
preponderance of black students in the [KCMSD] was due to the State
and KCMSD's constitutional violations, which caused white flight
.... [T]he existence of segregated schools led to white flight from
the KCMSD to suburban districts and to private schools."
Jenkins, 855 F. 2d, at 1302, citing the District Court's
Order of Aug. 25, 1986, 1 App. 126 ("[S]egregated schools, a
constitutional violation, ha[ve] led to white flight from the KCMSD
to suburban districts [and] large numbers of students leaving the
schools of Kansas City and attending private schools ... "). While
this exodus of white students would not have led to segregation
within the SSD's, which have all been run in a unitary fashion
since the time of
Brown, it clearly represented an effect
spanning district borders, and one which the District Court and the
Court of Appeals expressly attributed to segregation in the
KCMSD.
The Court, however, rejects the findings of the District Court,
endorsed by the Court of Appeals, that segregation led to white
flight from the KCMSD, and does so at the ex-
162
pense of another accepted norm of our appellate procedure. We
have long adhered to the view that "[a] court of law, such as this
Court is, rather than a court for correction of errors in
factfinding, cannot undertake to review concurrent findings of fact
by two courts below in the absence of a very obvious and
exceptional showing of error."
Graver Tank &
Mfg.
Co. v.
Linde Air Products Co., 336 U. S. 271, 275
(1949); see also
Branti v.
Finkel, 445 U. S. 507, 512, n. 6
(1980) (referring to "our settled practice of accepting, absent the
most exceptional circumstances, factual determinations in which the
district court and the court of appeals have concurred"). The Court
fails to show any exceptional circumstance present here, however:
it relies on a "contradiction" that is not an obvious contradiction
at all, and on an arbitrary "supposition" that" 'white flight' may
result from desegregation, not
de jure segregation,"
ante, at 95, a supposition said to be bolstered by the
District Court's statement that there was "an abundance of evidence
that many residents of the KCMSD left the district and moved to the
suburbs because of the district's efforts to integrate its
schools." 672 F. Supp., at 412.5
The doubtful contradiction is said to exist between the District
Court's findings, on the one hand, that segregation caused white
flight to the SSD's, and the Court of Appeals's conclusion, on the
other, that the District Court" 'made specific findings that negate
current significant interdistrict effects .... '"
Ante, at
96, quoting
Jenkins, 807 F. 2d, at 672. Any impression of
contradiction quickly disappears, however, when the Court of
Appeals's statement is read in context:
"[T]he [district] court explicitly recognized that [to
consolidate school districts] under Milliken [IJ 'there
5JU8TICE O'CONNOR also rests on supposition. See
ante, at
113 ("In this case, it may be the 'myriad factors of human
existence,' that have prompted the white exodus from the KCMSD ...
") (citation omitted).
163
must be evidence of a constitutional violation in one district
that produces a significant segregative effect in another
district.' Order of June 5, 1984 at 14, 95 .... The district court
thus dealt not only with the issue of whether the SSDs were
constitutional violators but also whether there were significant
interdistrict segregative effects. See V, infra. When
it did so, it made specific findings that negate current
significant interdistrict effects .... " Ibid.
It is clear that, in this passage, the Court of Appeals was
summarizing the District Court's findings that the constitutional
violations within the KCMSD had not produced any segregative
effects in other districts.
Ibid. While the Court of Appeals
did not repeat the word "segregative" in its concluding sentence,
there is nothing to indicate that it was referring to anything but
segregative effects, and there is in fact nothing in the District
Court's own statements going beyond its finding that the State and
the KCMSD's actions did not lead to segregative effects in the
SSD'S.6
6 The Court states that the Court of Appeals would not have
decided the question whether the State and the KCMSD's violations
produced segregative effects in the SSD's, as respondents lacked
standing to raise the issue.
Ante, at 96, n. 9. This
statement eludes explanation. In
Milliken 1,418 U. S. 717
(1974), we held that before a district court may order the
mandatory interdistrict reassignment of students throughout a
metropolitan area, it must first find either that multiple school
districts participated in the unconstitutional segregation of
students, or that the violation within a single school district
"produce[d] ... significant segregative effect[s]" in the others.
Id., at 744-745. See
ante, at 93;
ante, at
105, 108 (O'CONNOR, J., concurring); see also
infra, at
170-171. In the earlier stages of this litigation, the Jenkins
respondents sought the mandatory reassignment of students
throughout the Kansas City metropolitan area, and the District
Court, 3 App. 721-820 (Order of June 5, 1984), and the Court of
Appeals,
Jenkins, 807 F. 2d, at 665-666, 672, rejected such
relief on the grounds that the requirements of
Milliken I
had not been satisfied. The Court is now saying that respondents
lacked standing to raise the issue of interdistrict segregative
effects, and that the District Court and
164
There is, in turn, no contradiction between this finding and the
District Court's findings about white flight: while white flight
would have produced significant effects in other school districts,
in the form of greatly increased numbers of white students, those
effects would not have been segregative beyond the KCMSD, as the
departing students were absorbed into wholly unitary systems.
Without the contradiction, the Court has nothing to justify its
rejection of the District Court's finding that segregation caused
white flight but its supposition that flight results from
integration, not segregation. The supposition, and the distinction
on which it rests, are untenable. At the more obvious level, there
is in fact no break in the chain of causation linking the effects
of desegregation with those of segregation. There would be no
desegregation orders and no remedial plans without prior
unconstitutional segregation as the occasion for issuing and
adopting them, and an adverse reaction to a desegregation order is
traceable in fact to the segregation that is subject to the remedy.
When the Court quotes the District Court's reference to abundant
evidence that integration caused flight to the suburbs, then, it
quotes nothing inconsistent with the District Court's other
findings that segregation had caused the flight. The only
difference between the statements lies in the point to which the
District Court happened to trace the causal sequence.
The unreality of the Court's categorical distinction can be
illustrated by some examples. There is no dispute that before the
District Court's remedial plan was placed into effect the schools
in the unreformed segregated system were physically a shambles:
"The KCMSD facilities still have numerous health and safety
hazards, educational environment hazards, functional impairments,
and appearance impairments. The
the Court of Appeals lacked the authority to reach the issue,
even though that is precisely what was required of them under
Milliken I.
165
specific problems include: inadequate lighting; peeling paint
and crumbling plaster on ceilings, walls and corridors; loose
tiles, torn floor coverings; odors resulting from unventilated
restrooms with rotted, corroded toilet fixtures; noisy classrooms
due to lack of adequate acoustical treatment; lack of off street
parking and bus loading for parents, teachers and students; lack of
appropriate space for many cafeterias, libraries, and classrooms;
faulty and antiquated heating and electrical systems; damaged and
inoperable lockers; and inadequate fire safety systems. The
conditions at Paseo High School are such that even the principal
stated that he would not send his own child to that facility." 672
F. Supp., at 403 (citations omitted).
See also
Jenkins, 855 F. 2d, at 1300 (reciting District
Court findings);
Jenkins, 639 F. Supp., at 39-40. The cost
of turning this shambles into habitable schools was enormous, as
anyone would have seen long before the District Court ordered
repairs. See
Missouri v.
Jenkins, 495 U. S., at 38-40
(discussing the costs of the remedial program and the resulting
increases in tax rates within the KCMSD). Property tax-paying
parents of white children, seeing the handwriting on the wall in
1985, could well have decided that the inevitable cost of cleanup
would produce an intolerable tax rate and could have moved to
escape it. The District Court's remedial orders had not yet been
put in place. Was the white flight caused by segregation or
desegregation? The distinction has no significance.
Another example makes the same point. After
Brown, white
parents likely came to understand that the practice of spending
more on white schools than on black ones would be stopped at some
point. If they were unwilling to raise all expenditures to match
the customary white school level, they must have expected the
expenditures on white schools to drop to the level of those for the
segregated black schools or to some level in between. See,
e. g., 639 F. Supp., at 39-40
166
(describing a decline in all 68 of the KCMSD's school buildings
in the past "10 to 15 years"). If they thus believed that the white
schools would deteriorate they might then have taken steps to
establish private white schools, starting a practice of local
private education that has endured. Again, what sense does it make
to say of this example that the cause of white private education
was desegregation (not yet underway), rather than the segregation
that led to it?
I do not claim that either of these possible explanations would
ultimately turn out to be correct, for any such claim would head me
down the same road the Court is taking, of resolving factual issues
independently of the trial court without warning the respondents
that the full evidentiary record bearing on the issue should be
identified for us. My point is only that the Court is on shaky
grounds when it assumes that prior segregation and later
desegregation are separable in fact as causes of "white flight,"
that the flight can plausibly be said to result from desegregation
alone, and that therefore as a matter of fact the "intradistrict"
segregation violation lacked the relevant consequences outside the
district required to justify the District Court's magnet concept.
With the arguable plausibility of each of these assumptions
seriously in question, it is simply rash to reverse the concurrent
factual findings of the District Court and the Court of Appeals.
All the judges who spoke to the issue below concluded that
segregated schooling in the KCMSD contributed to the exodus of
white students from the district. Among them were not only the
judges most familiar with the record of this litigation, Judge
Clark of the District Court and the three members of the Court of
Appeals panel that has retained jurisdiction over the case, see
supra, at 162-164, but also the five judges who dissented
from the denial of rehearing en bane in the Court of Appeals (whose
opinion the majority does not hesitate to rely on for other
purposes):
"[By 1985], '[w]hite flight' to private schools and to the
suburbs was rampant.
167
"The district court, correctly recognizing that at least part of
this problem was the consequence of the de jure segregation
previously practiced under Missouri constitutional and statutory
law, fashioned a remedial plan for the desegregation of the KCMSD
.... " 19 F. 3d, at 397 (Beam, J., dissenting from denial of
rehearing en bane).
The reality is that the Court today overturns the concurrent
factual findings of the District Court and the Court of Appeals
without having identified any circumstance in the record sufficient
to warrant such an extraordinary course of action.
B
To the substantial likelihood that the Court proceeds on
erroneous assumptions of fact must be added corresponding errors of
law. We have most recently summed up the obligation to correct the
condition of
de jure segregation by saying 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.'"
Freeman, 503 U. S., at 486, quoting
Green, 391 U. S.,
at 437-438. Although the fashioning of judicial remedies to this
end has been left, in the first instance, to the equitable
discretion of the district courts, in
Milliken I we
established an absolute limitation on this exercise of equitable
authority. "[W]ithout an interdistrict violation and interdistrict
effect, there is no constitutional wrong calling for an
interdistrict remedy."
Milliken I, 418 U. S., at
745.
The Court proceeds as if there is no question but that this
proscription applies to this case. But the proscription does not
apply. We are not dealing here with an interdistrict remedy in the
sense that
Milliken I used the term. In the
Milliken
I litigation, the District Court had ordered 53 surrounding
school districts to be consolidated with the Detroit
168
school system, and mandatory busing to be started within the
enlarged district, even though the court had not found that any of
the suburban districts had acted in violation of the Constitution.
"The metropolitan remedy would require, in effect, consolidation of
54 independent school districts historically administered as
separate units into a vast new super school district."
Id.,
at 743. It was this imposition of remedial measures on more than
the one wrongdoing school district that we termed an "interdistrict
remedy":
"We ... turn to address, for the first time, the validity of a
remedy mandating cross-district or interdistrict consolidation to
remedy a condition of segregation found to exist in only one
district." Id., at 744.
And it was just this subjection to court order of school
districts not shown to have violated the Constitution that we
deemed to be in error:
"Before the boundaries of separate and autonomous school
districts may be set aside by consolidating the separate units for
remedial purposes or by imposing a cross-district remedy, it must
first be shown that there has been a constitutional violation
within one district that produces a significant segregative effect
in another district ....
" ... To approve the remedy ordered by the court would impose on
the outlying districts, not shown to have committed any
constitutional violation, a wholly impermissible remedy based on a
standard not hinted at in Brown I and II or any
holding of this Court." Id., at 744-745.
We did not hold, however, that any remedy that takes into
account conditions outside of the district in which a
constitutional violation has been committed is an "interdistrict
remedy," and as such improper in the absence of an "interdistrict
violation." To the contrary, by emphasizing that remedies in school
desegregation cases are grounded in traditional eq-
169
uitable principles, id., at 737-738, we left open the
possibility that a district court might subject a proven
constitutional wrongdoer to a remedy with intended effects going
beyond the district of the wrongdoer's violation, when such a
remedy is necessary to redress the harms flowing from the
constitutional violation.
The Court, nonetheless, reads
Milliken I quite
differently.
It reads the case as categorically forbidding imposition of a
remedy on a guilty district with intended consequences in a
neighboring innocent district, unless the constitutional violation
yielded segregative effects in that innocent district. See,
e. g.,
ante, at 92 ("But this interdistrict goal [of
attracting nonminority students from outside the KCMSD schools] is
beyond the scope of the intradistrict violation identified by the
District Court" (emphasis deleted)).
Today's decision therefore amounts to a redefinition of the
terms of
Milliken I and consequently to a substantial
expansion of its limitation on the permissible remedies for prior
segregation. But that is not the only prior law affected by today's
decision. The Court has not only rewritten
Milliken I; it
has effectively overruled a subsequent case expressly refusing to
constrain remedial equity powers to the extent the Court does
today, and holding that courts ordering relief from
unconstitutional segregation may, with an appropriate factual
predicate, exercise just the authority that the Court today
eliminates.
Two Terms after
Milliken, we decided
Hills v.
Gautreaux, 425
U. S. 284 (1976), in a unanimous opinion by Justice Stewart.
The District Court in
Gautreaux had found that the United
States Department of Housing and Urban Development (HUD) and the
Chicago Housing Authority (CHA) had maintained a racially
segregated system of public housing within the city of Chicago, in
violation of various constitutional and statutory provisions. There
was no indication that the violation had produced any effects
outside the city itself. The issue before us was whether "the
remedial order
170
of the federal trial court [might] extend beyond Chicago's
territorial boundaries."
Id., at 286. Thus, while JUSTICE
O'CONNOR suggests that
Gautreaux may not have addressed the
propriety of a remedy with effects going beyond the district in
which the constitutional violation had occurred,
ante, at
106, her suggestion cannot be squared with our express
understanding of the question we were deciding: "the permissibility
in light of Milliken of 'inter-district relief for discrimination
in public housing in the absence of a finding of an inter-district
violation.'"
Gautreaux, supra, at 292.
HUD argued that the case should turn on the same principles
governing school desegregation orders and that, under Milliken I,
the District Court's order could not look beyond Chicago's city
limits, because it was only within those limits that the
constitutional violation had been committed. 425 U. S., at 296-297.
We agreed with HUD that the principles of Milliken apply outside of
the school desegregation context, 425 U. S., at 294, and n. 11, but
squarely rejected its restricted interpretation of those principles
and its view of limited equitable authority to remedy segregation.
We held that a district court may indeed subject a governmental
perpetrator of segregative practices to an order for relief with
intended consequences beyond the perpetrator's own subdivision,
even in the absence of effects outside that subdivision, so long as
the decree does not bind the authorities of other governmental
units that are free of violations and segregative effects:
"[Milliken's] holding that there had to be an interdistrict
violation or effect before a federal court could order the crossing
of district boundary lines reflected the substantive impact of a
consolidation remedy on separate and independent school districts.
The District Court's desegregation order in Milliken was held to be
an impermissible remedy not because it envisioned relief against a
wrongdoer extending beyond the city in which the violation occurred
but because it contemplated a
171
judicial decree restructuring the operation of local
governmental entities that were not implicated in any
constitutional violation." Id., at 296 (footnote
omitted).
In the face of
Gautreaux's language, the Court claims
that it was only because the "'relevant geographic area for
purposes of the [plaintiffs'] housing options [was] the Chicago
housing market, not the Chicago city limits,'"
ante, at 97,
quoting
Gautreaux, supra, at 299, that we held that" 'a
metropolitan area remedy ... [was] not impermissible as a matter of
law,'"
ante, at 97, quoting
Gautreaux, supra, at 306.
See also
ante, at 106 (O'CONNOR, J., concurring). But that
was only half the explanation. Requiring a remedy outside the city
in the wider metropolitan area was permissible not only because
that was the area of the housing market even for people who lived
within the city (thus relating the scope of the remedy to the
violation suffered by the victims) but also because the trial court
could order a remedy in that market without binding a governmental
unit innocent of the violation and free of its effects. In
"reject[ing] the contention that, since HUD's constitutional and
statutory violations were committed in Chicago,
Milliken
precludes an order against HUD that will affect its conduct in the
greater metropolitan area," we stated plainly that "[t]he critical
distinction between HUD and the suburban school districts in
Milliken is that HUD has been found to have violated the
Constitution. That violation provided the necessary predicate for
the entry of a remedial order against HUD and, indeed, imposed a
duty on the District Court to grant appropriate relief."
Gautreaux, 425 U. S., at 297. Having found HUD in violation
of the Constitution, the District Court was obligated to make
"every effort ... to employ those methods [necessary] 'to achieve
the greatest possible degree of [relief], taking into account the
practicalities of the situation,'"
ibid., quoting
Davis v.
Board of School Comm'rs of Mobile Cty.,
402 U. S. 33, 37
(1971), and the District Court's methods could include subjecting
HUD to measures going beyond the
172
geographical or political boundaries of its violation. "Nothing
in the
Milliken decision suggests a
per se rule that
federal courts lack authority to order parties found to have
violated the Constitution to undertake remedial efforts beyond the
municipal boundaries of the city where the violation occurred." 425
U. S., at 298.
On its face, the District Court's magnet school concept falls
entirely within the scope of equitable authority recognized in
Gautreaux. In
Gautreaux, the fact that the CHA and
HUD had the authority to operate outside the limits of the city of
Chicago meant that an order to fund or build housing beyond those
limits would "not necessarily entail coercion of uninvolved
governmental units .... "
Id., at 298. Here, by the same
token, the District Court has not sought to "consolidate or in any
way restructure" the SSD's, id., at 305-306, or, indeed, to subject
them to any remedial obligation at alP The District Court's
remedial measures go only to the operation and quality of schools
within the KCMSD, and the burden of those measures accordingly
falls only on the two proven constitutional wrongdoers in this
case, the KCMSD and the State. And insofar as the District Court
has ordered those violators to undertake measures to increase the
KCMSD's attractiveness to students from other districts and thereby
to reverse the flight attributable to their prior segregative acts,
its orders do not represent an abuse of discretion, but instead
appear "wholly commensurate with the 'nature and extent of the
constitutional violation.'"
Id., at 300, quoting
Milliken
I, 418 U. S., at 744.
The Court's failure to give
Gautreaux its due points up
the risks of its approach to this case. The major peril of
addressing an important and complex question without ade-
7 Thus, the Court errs in suggesting that the District Court has
sought to do here indirectly what we held the District Court could
not do directly in Milliken I. Ante, at 94. The District Court here
has not attempted, directly or indirectly, to impose any remedial
measures on school districts innocent of a constitutional violation
or free from its segregative effects.
173
quate notice to the parties is the virtual certainty that
briefing and argument will not go to the real point. If respondents
had had reason to suspect that the validity of applying the
District Court's remedial concept of magnet schools in this case
would be the focus of consideration by this Court, they presumably
would have devoted significant attention to
Gautreaux in
their briefing. As things stand, the only references to the case in
the parties' briefs were two mere passing mentions by the
Jenkins respondents and a footnote by the State implying
that
Gautreaux was of little relevance here. The State's
footnote says that "in
Gautreaux, there was evidence of
suburban discrimination and of the 'extra-city impact of [HUD's]
intracity discrimination.'" Brief for Petitioners 28, n. 18. That
statement, however, is flatly at odds with Justice Stewart's
opinion for the Court: "the Court of Appeals surmised that either
an interdistrict violation or an interdistrict segregative effect
may have been present in this case. There is no support provided
for either conclusion .... [I]t is apparent that the Court of
Appeals was mistaken in supposing that the [record contains]
evidence of suburban discrimination justifying metropolitan area
relief .... [And the Court of Appeals's] unsupported speculation
falls far short of the demonstration of a 'significant segregative
effect in another district' discussed in the
Milliken
opinion."
Gautreaux, 425 U. S., at 294-295, n. 11.8
8JUSTICE O'CONNOR thinks I place undue emphasis on the
Gautreaux Court's footnote, turning it into an "island,
entire of itself ... ,"
ante, at 107, but it cannot be
shrunk to the dimension necessary to support the majority's result.
According to JUSTICE O'CONNOR,
Gautreaux holds that
"territorial transgression" of any kind "is permissible only upon a
showing that [an] intradistrict constitutional violation [has]
produced significant interdistrict segregative effects .... "
Ante, at 106. She finds
Gautreaux significant only in
reversing the Court of Appeals's finding that such effects had been
established on the record of that case, and she understands that
the Court remanded the case to the District Court with the
understanding that it would order relief going beyond the city of
Chicago's
174
After being misrepresented by the State and mentioned only
briefly by the other parties,
Gautreaux's holding is now
effectively overruled, for the Court's opinion can be viewed as
correct only on that assumption. But there is no apparent reason to
reverse that decision, which represented the judgment of a
unanimous Court, seems to reflect equitable common sense, and has
been in the reports for two decades. While I would reserve final
judgment on
Gautreaux's future until a time when the subject
has been given a full hearing,
boundaries only if it found significant interdistrict
segregative effects to exist.
Ante, at 107-108.
But this is an implausible reading. JUSTICE O'CONNOR is correct
that in
Gautreaux we reiterated the importance of
Milliken I's requirement of significant interdistrict
segregative effects, but we did so only in connection with the type
of relief at issue in
Milliken I, that involving "direct
federal judicial interference with local governmental entities" not
shown to have violated the Constitution.
Gautreaux, 425 U.
S., at 294; see generally id., at 292-298. As the language I have
quoted above demonstrates, we made it very clear in
Gautreaux that the District Court could order relief going
beyond the boundaries of the city of Chicago without any finding of
such effects, because that relief would impose no obligation on
governmental units innocent of a constitutional violation and free
of its effects. Indeed, when we summarized our holding at the
conclusion of our opinion, we made the point yet again. "In sum,
there is no basis for the petitioner's claim that court-ordered
metropolitan area relief in this case would be impermissible as a
matter of law under the
Milliken decision. In contrast to
the desegregation order in that case, a metropolitan area relief
order directed to HUD would not consolidate or in any way
restructure local governmental units."
Id., at 305-306.
While JUSTICE O'CONNOR,
ante, at 107-108 (and the Court,
ante, at 97) seeks to make much of the fact that we did not
order metropolitan relief ourselves in
Gautreaux, but rather
remanded the case to the District Court, we did so because we
recognized that the question of what relief to order was a matter
for the District Court in the first instance. "The nature and scope
of the remedial decree to be entered on remand is a matter for the
District Court in the exercise of its equitable discretion, after
affording the parties an opportunity to present their views." 425
U. S., at 306. Nowhere did we state that before the District Court
could order metropolitan area relief, it would first have to make
findings of significant segregative effects extending beyond the
city of Chicago's borders.
175
I realize that after today's decision there may never be an
occasion for any serious examination of
Gautreaux. If things
work out that way, there will doubtless be those who will quote
from
Gautreaux to describe today's opinion as
"transform[ing]
Milliken's principled limitation on the
exercise of federal judicial authority into an arbitrary and
mechanical shield for those found to have engaged in
unconstitutional conduct."
Id., at 300.
I respectfully dissent.
JUSTICE GINSBURG, dissenting.
I join JUSTICE SOUTER'S illuminating dissent and emphasize a
consideration key to this controversy.
The Court stresses that the present remedial programs have been
in place for seven years.
Ante, at 102. But compared to more
than two centuries of firmly entrenched official discrimination,
the experience with the desegregation remedies ordered by the
District Court has been evanescent.
In 1724, Louis XV of France issued the Code Noir, the first
slave code for the Colony of Louisiana, an area that included
Missouri. Violette, The Black Code in Missouri, in 6 Proceedings of
the Mississippi Valley Historical Association 287, 288 (B.
Shambaugh ed. 1913). When Missouri entered the Union in 1821, it
entered as a slave State.
Id., at 303.
Before the Civil War, Missouri law prohibited the creation or
maintenance of schools for educating blacks: "No person shall keep
or teach any school for the instruction of negroes or mulattoes, in
reading or writing, in this State." Act of Feb. 16, 1847, § 1, 1847
Mo. Laws 103.
Beginning in 1865, Missouri passed a series of laws requiring
separate public schools for blacks. See,
e. g., Act of Mar.
29, 1866, § 20, 1865 Mo. Laws 177. The Missouri Constitution first
permitted, then required, separate schools. See Mo. Const., Art.
IX, § 2 (1865); Mo. Const., Art. XI, § 3 (1875).
After this Court announced its decision in
Brown v.
Board of Education, 347 U. S. 483 (1954),
Missouri's Attorney Gen-
176
eral declared these provisions mandating segregated schools
unenforceable. See
Jenkins v.
Missouri, 593 F. Supp.
1485, 1490 (WD Mo. 1984). The statutes were repealed in 1957 and
the constitutional provision was rescinded in 1976.
Ibid.
Nonetheless, 30 years after
Brown, the District Court found
that "the inferior education indigenous of the statecompelled dual
school system has lingering effects in the Kansas City, Missouri
School District." 593 F. Supp., at 1492. The District Court
concluded that "the State ... cannot defend its failure to
affirmatively act to eliminate the structure and effects of its
past dual system on the basis of restrictive state law."
Id., at 1505. Just ten years ago, in June 1985, the District
Court issued its first remedial order.
Jenkins v.
Missouri, 639 F. Supp. 19 (WD Mo.).
Today, the Court declares illegitimate the goal of attracting
nonminority students to the Kansas City, Missouri, School District,
ante, at 94, and thus stops the District Court's efforts to
integrate a school district that was, in the 1984/1985 school year,
sorely in need and 68.3% black. 639 F. Supp., at 36; see also
Jenkins v.
Missouri, 672 F. Supp. 400, 411 (WD Mo.
1987) (reporting that physical facilities in the School District
had "literally rotted"). Given the deep, inglorious history of
segregation in Missouri, to curtail desegregation at this time and
in this manner is an action at once too swift and too soon. Cf.
11 F.3d
755, 762 (CA8 1993) (Court of Appeals noted with approval that
the District Court had ordered the School District to submit plans
projecting termination of court-ordered funding at alternative
intervals, running from April 1993, of three, five, seven, or, at
most, ten years).
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