Where neither the Court of Appeals nor the District Court, in
addressing itself to the remedial school desegregation plan for
Omaha, Neb., mandated by an earlier decision of the Court of
Appeals, addressed itself to the inquiry now required by
Dayton
Board of Education v. Brinkman, ante p.
433 U. S. 406, the
Court of Appeals' judgment is vacated, and the case is remanded for
reconsideration.
Certiorari granted; 541 F.2d 708, vacated and remanded.
PER CURIAM.
This school desegregation case involves the School District of
Omaha, Neb. The District Court, in a comprehensive opinion,
extensively reviewed the evidence presented by the parties, and
recognized that there was considerable racial imbalance in school
attendance patterns. Applying a legal standard which placed the
burden of proving intentional segregative actions on the
respondents, and which regarded the natural and foreseeable
consequences of petitioners' conduct as "neither determinative nor
immaterial," but as "one additional factor to be weighed," the
District Court concluded that the respondent had not carried the
burden of proving a deliberate policy of racial segregation.
389 F.
Supp. 293. On appeal, the Court of Appeals rejected the legal
standard applied by the District Court, 521 F.2d 530, stating that
a "presumption of segregative intent" arises from actions or
omissions whose natural and foreseeable result is to "bring about
or maintain segregation."
Id. at 535. Reviewing the facts
found by the District Court concerning faculty assignment, student
transfers, optional attendance zones, school construction,
Page 433 U. S. 668
and the deterioration of one high school in the district, the
Court of Appeals generally accepted these factual findings. In each
instance, however, it concluded that there was sufficient evidence
under the legal standard it adopted to shift the burden of proof to
the petitioners. Finding that in no instance had the petitioners
carried their rebuttal burden, the Court of Appeals remanded for
the formulation of a systemwide remedy. We denied certiorari. 423
U.S. 946.
Following the explicit instruction of the Court of Appeals, the
District Court promulgated an extensive plan involving, among other
elements, the systemwide transportation of pupils. On petitioners'
appeal, the Court of Appeals for the Eighth Circuit affirmed. 541
F.2d 708.
In
Washington v. Davis, 426 U.
S. 229,
426 U. S. 239
(1976), we said:
"[O]ur cases have not embraced the proposition that a law or
other official act, without regard to whether it reflects a
racially discriminatory purpose, is unconstitutional solely because
it has a racially disproportionate impact."
We restated and amplified the implications of this holding in
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U. S. 252
(1977).
Neither the Court of Appeals nor the District Court, in
addressing itself to the remedial plan mandated by the earlier
decision of the Court of Appeals, addressed itself to the inquiry
required by our opinion in
Dayton Board of Education v.
Brinkman, ante p.
433 U. S. 406, in
which we said:
"If such violations are found, the District Court in the first
instance, subject to review by the Court of Appeals, must determine
how much incremental segregative effect these violations had on the
racial distribution of the Dayton school population as presently
constituted, when that distribution is compared to what it would
have been in the absence of such constitutional violations. The
Page 433 U. S. 669
remedy must be designed to redress that difference, and only if
there has been a systemwide impact may there be a systemwide
remedy."
Ante at
433 U. S.
420.
The petition for certiorari is accordingly granted, the judgment
of the Court of Appeals is vacated, and the case is remanded for
reconsideration in the light of
Arlington Heights and
Dayton.
It is so ordered.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
The Court's remand of this case for reconsideration in light of
Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U. S. 252
(1977), and
Dayton Board of Education v. Brinkman, ante p.
433 U. S. 406, is
inappropriate because wholly unnecessary. The Court of Appeals
concluded that "segregation in the Omaha School District was
intentionally created and maintained by the defendants." 521 F.2d
530, 532-533 (1975). The petitioners did not contest in the Court
of Appeals the finding of the District Court that the Omaha public
schools are segregated.
Ibid. The Court of Appeals
carefully reviewed the abundant evidence in the record bearing on
segregative intent, and concluded that the evidence justified a
presumption that segregative intent permeated petitioners' policies
concerning faculty assignment, student transfers, optional
attendance zones, school construction, and the deterioration of the
96% black Tech High School.
Id. at 537-546. Relying on
Keyes v. School District No. 1, Denver, Colo.,
413 U. S. 189,
413 U. S. 210
(1973), the Court of Appeals further found that the petitioners did
not rebut this presumption, because they "failed to carry their
burden of establishing that segregative intent was not among
the factors which motivated their actions." 521 F.2d at 536,
537 (emphasis supplied). We denied certiorari. 423 U.S. 946 (1975).
When the case came before the Court
Page 433 U. S. 670
of Appeals for the second time a year later, the court
explicitly reviewed its prior holding in light of our intervening
decision in
Washington v. Davis, 426 U.
S. 229 (1976), and found nothing in that case to cause
it to revise its earlier opinion. 541 F.2d 708, 709 (1976).
Arlington Heights, supra, did not make new law, but
only applied the holding of
Washington v. Davis that
discrimination must be purposeful to be unconstitutional.
Arlington Heights interpreted
Washington v. Davis
to mean that an action in which an "invidious discriminatory
purpose was a motivating factor" is unconstitutional, and that
proof that a decision is "motivated in part by a racially
discriminatory purpose" shifts the burden of proof to the alleged
discriminator. 429 U.S. at
429 U. S. 270-271, n. 21. The conclusion of the Court of
Appeals that the defendants "failed to carry their burden of
establishing that segregative intent was not among the factors
which motivated their actions" was based on language from our
decision in
Keyes, supra, but it so faithfully applies the
Arlington Heights formulation that it reads as if the
Court of Appeals had anticipated precisely what
Arlington
Heights would hold five months later. I cannot imagine that
the Court of Appeals will do, or properly can do, anything on
remand except reaffirm its judgment with a recitation of its
gratification that
Arlington Heights had been correctly
anticipated.
Dayton, supra, reaffirmed the already well established
principle that the scope of the remedy must be commensurate with
the scope of the constitutional violation.
Ante at
433 U. S. 420.
In this case, the District Court ordered a comprehensive decree to
remedy the effects of past discrimination, and the Court of Appeals
affirmed. As is evident from a reading of the first Court of
Appeals opinion describing the massive systemwide intentional
segregation in the Omaha School District, a comprehensive order is
entirely appropriate. A less comprehensive
Page 433 U. S. 671
order would simply not remedy fully the unconstitutional
conditions that have been found to exist in the school system. I
would affirm the judgment of the Court of Appeals.
MR. JUSTICE STEVENS, dissenting.
For the reasons stated by MR. JUSTICE BRENNAN, I cannot join the
Court's summary disposition of this case. I would deny
certiorari.
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