BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT NO. 89, OKLAHOMA COUNTY, OKLAHOMA v. DOWELL ET AL.
No. 89-1080
Supreme Court of the United States
Argued October 2, 1990-Decided January 15, 1991
498 U.S. 237
Ronald L. Day argued the cause for petitioner. With him on the briefs were Laurie W. Jones and Charles J. Cooper.
Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Deputy Assistant Attorney General Clegg, Lawrence S. Robbins, David K. Flynn, and Mark L. Gross.
Julius LeVonne Chambers argued the cause for respondents. With him on the brief were Charles Stephen Ralston, Norman J. Chachkin, Lewis Barber, Jr., Janell M. Byrd, and Anthony G. Amsterdam.*
*Briefs of amici curiae urging reversal were filed for the DeKalb County Board of Education by Rex E. Lee, Carter G. Phillips, Mark D. Hopson, Gary M. Sams, Charles L. Weatherly, and J. Stanley Hawkins; for the Intervenors in Carlin v. Board of Education of San Diego Unified School District by Elmer Enstrom, Jr.; and for the Landmark Legal Foundation Center for Civil Rights by Clint Bolick, Jerald L. Hill, Gary Lawson, Daniel Polsby, Charles E. Rice, Robert A. Anthony, Thomas C. Arthur, Peter J. Ferrara, Lino A. Graglia, and Henry Mark Holzer.
Briefs of amici curiae urging affirmance were filed for the American Jewish Committee еt al. by Samuel Rabinove, Richard T. Foltin, and William B. Duffy, Jr.; for the Lawyers’ Committee for Civil Rights Under Law et al. by Paul Vizcarrondo, Jr., Norman Redlich, Robert F. Mullen, John A. Powell, Steven R. Shapiro, and Marc D. Stern; for the National Association for the Advancement of Colored People et al. by David J. Burman, William L. Taylor, and Susan M. Liss; and for the National Education Association by Robert H. Chanin and Jeremiah A. Collins.
Briefs of amici curiae were filed for the Council of the Great City Schools et al. by David S. Tatel, Walter A. Smith, Jr., and Patricia A.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Board of Education of Oklahoma City (Board) sought dissolution of a decree entered by the District Court imposing a school desegregation plan. The District Court granted relief over the objection of respondents Robert L. Dowell et al., black students and their parents. The Court of Appeals for the Tenth Circuit reversed, holding that the Board would be entitled to such relief only upon “[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions ....” 890 F. 2d 1483, 1490 (1989) (citation omitted). We hold that the Court of Appeals’ test is more stringent than is required either by our cases dealing with injunctions or by the Equal Protection Clause of the
I
This school desegregation litigation began almost 30 years ago. In 1961, respondents, black students and their parents, sued the Board to end de jure segregation in the public schools. In 1963, the District Court found that Oklahoma City had intentionally segregated both schools and housing in the past, and that Oklahoma City was operating a “dual” school system—one that was intentionally segregated by race. Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427 (WD Okla.). In 1965, the District Court found that the Board‘s attempt to desegregate by using neighborhood zoning failed to remedy past segregation because residential segregation resulted in one-race schools. Dowell v. School Board of Oklahoma City Public Schools, 244 F. Supp. 971, 975 (WD Okla.). Residential segregation had once been state imposed, and it lingered due to discrimination by some realtors and financial institutions. Ibid. The District Court found that school segregation had caused
In 1977, after complying with the desegregation decree for five years, the Board made a “Motion to Close Case.” The District Court held in its “Order Terminating Case“:
“The Court has concluded that [the Finger Plan] worked and that substantial compliance with the constitutional requirements has been achieved. The School Board, under the oversight of the Court, has operated the Plan properly, and the Court does not foresee that the termination of its jurisdiction will result in the dismantlement of the Plan or any affirmative action by the defendant to undermine the unitary system so slowly and painfully accomplished over the 16 years during which the cause has been pending before the court. . . .
“. . . The School Board, as now constituted, has manifested the desire and intent to follow the law. The court believes that the present members and their successors on the Board will now and in the future continue to follow the constitutional desegregation requirements.
“Now sensitized to the constitutional implications of its conduct and with a new awareness of its responsibil-
ity to citizens of all races, the Board is entitled to pursue in good faith its legitimate policies without the continuing constitutional supervision of this Court. . . . “. . . Jurisdiction in this case is terminated ipso facto subject only to final disposition of any case now pending on appeal.” No. Civ-9452 (WD Okla., Jan. 18, 1977); App. 174-176.
This unpublished order was not appealed.
In 1984, the Board faced demographic changes that led to greater burdens on young black children. As more and more neighborhoods became integrated, more stand-alone schools were established, and young black students had to be bused farther from their inner-city homes to outlying white areas. In an effort to alleviate this burden and to increase parental involvement, the Board adopted the Student Reassignment Plan (SRP), which relied on neighborhood assignments for students in grades K-4 beginning in the 1985-1986 school year. Busing continued for students in grades 5-12. Any student could transfer from a school where he or she was in the majority tо a school where he or she would be in the minority. Faculty and staff integration was retained, and an “equity officer” was appointed.
In 1985, respondents filed a “Motion to Reopen the Case,” contending that the school district had not achieved “unitary” status, and that the SRP was a return to segregation. Under the SRP, 11 of 64 elementary schools would be greater than 90% black, 22 would be greater than 90% white plus other minorities, and 31 would be racially mixed. The District Court refused to reopen the case, holding that its 1977 finding of unitariness was res judicata as to those who were then parties to the action, and that the district remained unitary. Dowell v. Board of Education of Oklahoma City Public Schools, 606 F. Supp. 1548 (WD Okla. 1985). The District Court found that the Board, administration, faculty, support staff, and student body were integrated, and trans-
The Court of Appeals for the Tenth Circuit reversed, Dowell v. Board of Education of Oklahoma City Public Schools, 795 F. 2d 1516, cert. denied, 479 U. S. 938 (1986). It held that, while the 1977 order finding the district unitary was binding on the parties, nothing in that order indicated thаt the 1972 injunction itself was terminated. The court reasoned that the finding that the system was unitary merely ended the District Court‘s active supervision of the case, and because the school district was still subject to the desegregation decree, respondents could challenge the SRP. The case was remanded to determine whether the decree should be lifted or modified.
On remand, the District Court found that demographic changes made the Finger Plan unworkable, that the Board had done nothing for 25 years to promote residential segregation, and that the school district had bused students for more than a decade in good-faith compliance with the court‘s orders. 677 F. Supp. 1503 (WD Okla. 1987). The District Court found that present residential segregation was the result of private decisionmaking and economics, and that it was too attenuated to be a vestige of former school segregation. It also found that the district had maintained its unitary status, and that the neighborhood assignment plan was not designed with discriminatory intent. The court concluded that the previous injunctive decree should be vacated and the school district returned to local control.
The Court of Appeals again reversed, 890 F. 2d 1483 (1989), holding that ““an injunction takes on a life of its own and becomes an edict quite independent of the law it is meant to effectuate.“” Id., at 1490 (citation omitted). That court approached the case “not so much as one dealing with desegregation, but as one dealing with the proper application
We granted the Board‘s petition for certiorari, 494 U. S. 1055 (1990), to resolve a conflict between the standard laid down by the Court of Appeals in this case and that laid down in Spangler v. Pasadena Board of Education, 611 F. 2d 1239 (CA9 1979), and Riddick v. School Bd. of Norfolk, 784 F. 2d 521 (CA4 1986). We now reverse the Court of Appeals.
II
We must first consider whether respondents may contest the District Court‘s 1987 order dissolving the injunction which had imposed the desegregation decree. Respondents did not appeal from the District Court‘s 1977 order finding that the school system had achieved unitary status, and petitioner contends that the 1977 order bars respondents from contesting the 1987 order. We disagree, for the 1977 order did not dissolve the desegregation decree, and the District
The lower courts have been inconsistent in their use of the term “unitary.” Some have used it to identify a school district that has completely remedied all vestiges of past discrimination. See, e. g., United States v. Overton, 834 F. 2d 1171, 1175 (CA5 1987); Riddick v. School Bd. of Norfolk, supra, at 533-534; Vaughns v. Board of Education of Prince George‘s Cty., 758 F. 2d 983, 988 (CA4 1985). Under that interpretation of the word, a unitary school district is one that has met the mandate of Brown v. Board of Education, 349 U. S. 294 (1955), and Green v. New Kent County School Bd., 391 U. S. 430 (1968). Other courts, however, have used “unitary” to describe any school district that has currently desegregated student assignments, whether or not that status is solely the result of a court-imposed desegregation рlan. See, e. g., 890 F. 2d, at 1492, 1499 (case below). In other words, such a school district could be called unitary and nevertheless still contain vestiges of past discrimination. That there is such confusion is evident in Georgia State Conference of Branches of NAACP v. Georgia, 775 F. 2d 1403 (CA11 1985), where the Court of Appeals drew a distinction between a “unitary school district” and a district that has achieved “unitary status.” The court explained that a school district that has not operated segregated schools as proscribed by Green v. New Kent County School Bd., supra, and Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1 (1971), “for a period of several years” is unitary, but that a school district cannot be said to have achieved “unitary status” unless it “has eliminated the vestiges of its prior discrimination and has been adjudicated as such through the proper judicial procedures.” Georgia State Conference, supra, at 1413, n. 12.
We think it is a mistake to treat words such as “dual” and “unitary” as if they were actually found in the Constitution. The constitutional command of the
III
The Court of Appeals, 890 F. 2d, at 1490, relied upon language from this Court‘s decision in United States v. Swift & Co., supra, for the proposition that a desegregation decree could not be lifted or modified absent a showing of ““grievous wrong evoked by new and unforeseen conditions.“” Id., at 119. It also held that “compliance alone cannot become the basis for modifying or dissolving an injunction,” 890 F. 2d, at 1491, relying on United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). We hold that its reliance was mistaken.
In Swift, several large meatpаcking companies entered into a consent decree whereby they agreed to refrain forever from entering into the grocery business. The decree was by its terms effective in perpetuity. The defendant
United States v. United Shoe Machinery Corp., 391 U. S. 244 (1968), explained that the language used in Swift must be read in the context of the continuing danger of unlawful restraints on trade which the Court had found still existed. Id., at 248. ”Swift teaches . . . a decree may be changed upon an appropriate showing, and it holds that it may not be changed . . . if the purposes of the litigation as incorporated in the decree . . . have not been fully achieved.” Ibid. (emphasis deleted). In the present case, a finding by the District Court that the Oklahoma City School District was being operated in compliance with the commands of the Equal Protection Clause of the
In Milliken v. Bradley, 433 U. S. 267 (1977) (Milliken II), we said:
“[F]ederal-court decrees must directly address and relate to the constitutional violation itself. Because of this inherent limitation upon federal judicial authority, 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 . . . .” Id., at 282.
From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination. Brown considered the “complexities arising from the transition to a system of public education freed of racial discrimination” in holding that the implementation of
Considerations based on the allocation of powers within our federal system, we think, support our view that the quoted language from Swift does not provide the proper standard to apply to injunctions entered in school desegregation cases. Such decrees, unlike the one in Swift, are not intended to operate in perpetuity. Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs. Milliken v. Bradley, 418 U. S. 717, 742 (1974) (Milliken I); San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 50 (1973). The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that “necessary concern for the important values of local control of public school systems dictates that a federal court‘s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. See [Milliken II], 433 U. S., at 280-82.” Spangler v. Pasadena City Bd. of Education, 611 F. 2d, at 1245, n. 5 (Kennedy, J., concurring).
The Court of Appeals, as noted, relied for its statement that “compliance alone cannot become the basis for modifying or dissolving an injunction” on our decision in United States v. W. T. Grant Co., supra, at 633. That case, however, did not involve the dissolution of an injunction, but the question whether an injunction should be issued in the first place. This Court observed that a promise to comply with the law on the part of a wrongdoer did not divest a district court of its
A district court need not accept at face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future. But in deciding whether to modify or dissolve a desegregation decree, a school board‘s compliance with previous court orders is obviously relevant. In this case the original finding of de jure segregation was entered in 1963, the injunctive decree from which the Board seeks relief was entered in 1972, and the Board complied with the decree in good faith until 1985. Not only do the personnel of school boards change over time, but the same passage of time enables the district court to observe the good faith of the school board in complying with the decree. The test espoused by the Court of Appeals would condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future. Neither the principles governing the entry and dissolution of injunctive decrees, nor the commands of the Equal Protection Clause of the
Petitioner urges that we reinstate the decision of the District Court terminating the injunction, but we think that the preferable course is to remand the case to that court so that it may decide, in accordance with this opinion, whether the Board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved.1 The District Court should address itself to whether the Board had complied in good faith with the
In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but “to every facet of school operations—faculty, staff, transportation, extracurricular activities and facilities.” Green, 391 U. S., at 435. See also Swann, 402 U. S., at 18 (“[E]xisting policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities” are “among the most important indicia of a segregated system“).
After the District Court decides whether the Board was entitled to have the decree terminated, it should proceed to decide respondents’ challenge to the SRP. A school district which has been released from an injunction imposing a desegregation plan no longer requires court authorization for the promulgation of policies and rules regulating matters such as assignment of students and the like, but it of course remains subject to the mandate of the Equal Protection Clause of the
The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SOUTER took no part in the consideration or decision of this case.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.
Oklahoma gained statehood in 1907. For the next 65 years, the Oklahoma City School Board (Board) maintained segregated schools—initially relying on laws requiring dual school systems; thereafter, by exploiting residential segregation that had been created by legally enforced restrictive covenants. In 1972—18 years after this Court first found segregated schools unconstitutional—a federal court finally interrupted this cycle, enjoining the Board to implement a specific plan for achieving actual desegregation of its schools.
The practical question now before us is whether, 13 years after that injunction was imposed, the same Board should have been allowed to return many of its elementary schools to their former one-race status. The majority today suggests that 13 years of desegregation was enough. The Court remands the case for further evaluation of whether the purposes of the injunctive decree were achieved sufficient to justify the decree‘s dissolution. However, the inquiry it commends to the District Court fails to recognize explicitly the threatened reemergence of one-race schools as a relevant “vestige” of de jure segregation.
In my view, the standard for dissolution of a school desegregation decree must reflect the central aim of our school desegregation precedents. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), a unanimous Court declared that racially “[s]eparate educational facilities are inherently
I believe a desegregation decree cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist and there remain feasible methods of eliminating such conditions. Because the record here shows, and the Court of Appeals found, that fеasible steps could be taken to avoid one-race schools, it is clear that the purposes of the decree have not yet been achieved and the Court of Appeals’ reinstatement of the decree should be affirmed. I therefore dissent.1
I
In order to assess the full consequence of lifting the decree at issue in this case, it is necessary to explore more fully than does the majority the history of racial segregation in the Oklahoma City schools. This history reveals nearly unflagging resistance by the Board to judicial efforts to dismantle the city‘s dual education system.
When Oklahoma was admitted to the Union in 1907, its Constitution mandated separation of Afro-American children
Matters did not change in Oklahoma City after this Court‘s decision in Brown I and Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II). Although new school boundaries were established at that time, the Board also adopted a resolution allowing children to continue in the schools in which they were placed or to submit transfer requests that would be considered on a case-by-case basis. Dowell, supra, at 434. Because it allowed thousands of white children each year to transfer to schools in which their race was the majority, this transfer policy undermined any potential desegregation. See id., at 440-441, 446.
Parents of Afro-American children relegated to schools in the northeast quadrant filed suit against the Board in 1961. Finding that the Board‘s special transfer policy was “designed to perpetuate and encourage segregation,” id., at 441, the District Court struck down the policy as a violation of the Equal Protection Clause, id., at 442. Undeterred, the Board proceeded to adopt another special transfer policy which, as the District Court found in 1965, had virtually the same effect as the prior policy—“perpetuat[ion] [of] a segregated system.” Dowell v. School Bd. of Oklahoma City Public Schools, 244 F. Supp. 971, 975 (WD Okla. 1965), aff‘d in part, 375 F. 2d 158 (CA10), cert. denied, 387 U. S. 931 (1967).
Thus, by 1972, 11 years after the plaintiffs had filed suit and 18 years after our decision in Brown I, the Board continued to resist integration and in some respects the Board had worsened the situation. Four years after this Court‘s admonition to formerly de jure segregated school districts to come forward with realistic plans for immediate relief, see Green v. New Kent County School Bd., supra, at 439, the Board still had offered no meaningful plan of its own. Instead, “[i]t rationalize[d] its intransigence on the constitutionally unsound basis that public opinion [was] opposed to any further desegregation.” Dowell v. Board of Education of Oklahoma City Public Schools, 338 F. Supp. 1256, 1270 (WD Okla.), aff‘d, 465 F. 2d 1012 (CA10), cert. denied, 409 U. S. 1041 (1972). The District Court concluded: “This litigation has been frustratingly interminable, not because of insuperable difficulties of implementation of the commands of the Supreme Court . . . and the Constitution . . . but because of the unpardonable recalcitrance of the . . . Board.” 338 F. Supp., at 1271. Consequently, the District Court ordered the Board to implement the only available plan that exhibited the promise of achieving actual desegregation—the “Finger Plan” offered by the plaintiffs. Id., at 1269.
The Board continued to operate under the Finger Plan until 1985, when it implemented the Student Reassignment Plan (SRP). The SRP superimposed attendance zones over some residentially segregated areas. As a result, considerable racial imbalance reemerged in 33 of 64 elementary schools in the Oklahoma City system with student bodies either greater than 90% Afro-American or greater than 90% non-Afro-American. Dowell, 606 F. Supp., at 1553. More specifically, 11 of the schools ranged from 96.9% to 99.7% Afro-American, and approximately 44% of all Afro-American children in grades K-4 were assigned to these virtually all-Afro-American schools. See 890 F. 2d 1483, 1510, n. 4. (CA10 1989) (Baldock, J., dissenting).2
In response to the SRP, the plaintiffs moved to reopen the case. Ultimately, the District Court dissolved the deseg-
II
I agree with the majority that the proper standard for determining whether a school desegregation decree should be dissolved is whether the purposes of the desegregation litigation, as incorporated in the decree, have been fully achieved. Ante, at 247, citing United States v. Swift & Co., 286 U. S. 106 (1932). See United States v. United Shoe Machinery Corp., 391 U. S. 244, 248 (1968); Pasadena City Bd. of Education v. Spangler, 427 U. S. 424, 436-437 (1976); id., at 444 (MARSHALL, J., dissenting) (“We should not compel the District Court to modify its order unless conditions have changed so much that ‘dangers, once substantial, have become attenuated to a shadow,‘” quoting, Swift, supra, at 119).3 I strongly disagree with the majority, however, on what must be shown to demonstrate that a decree‘s purposes
A
Our pointed focus in Brown I upon the stigmatic injury caused by segregated schools explains our unflagging insistence that formerly de jure segregated school districts extinguish all vestiges of school segregation. The concept of stigma also gives us guidance as to what conditions must be eliminated before a decree can be deemed to have served its purpose.
In the decisions leading up to Brown I, the Court had attempted to curtail the ugly legacy of Plessy v. Ferguson, 163 U. S. 537 (1896), by insisting on a searching inquiry into whether “separate” Afro-American schools were genuinely “equal” to white schools in terms of physical facilities, curricula, quality of the faculty, and certain “intangible” considerations. See, e. g., Sweatt v. Painter, 339 U. S. 629 (1950); Sipuel v. Board of Regents of Univ. of Okla., 332 U. S. 631 (1948). In Brown I, the Court finally liberated the
The Court based this conclusion on its recognition of the particular social harm that racially segregated schools inflict on Afro-American children.
“To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
“‘Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.‘” Id., at 494.
Remedying and avoiding the recurrence of this stigmatizing injury have been the guiding objectives of this Court‘s desegregation jurisprudence ever since. These concerns inform the standard by which the Court determines the effectiveness of a proposed desegregation remedy. See Green v. New Kent County School Bd., 391 U. S. 430 (1968). In Green, a school board sought to implement the mandate of Brown I and Brown II by adoрting a “freedom of choice” plan under which individual students could specify which of two local schools they would attend. The Court held that this plan was inadequate because it failed to redress the effect of segregation upon “every facet of school operations—faculty, staff, transportation, extracurricular activities and facilities.” 391 U. S., at 435. By so construing the extent of a school board‘s obligations, the Court made clear that the
Accord, Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 15 (1971).
Concern with stigmatic injury also explains the Court‘s requirement that a formerly de jure segregated school district provide its victims with “make whole” relief. In Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), the court concluded that a school desegregation decree must “restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Id., at 746. In order to achieve such “make whole” relief, school systems must redress any effects traceable to former de jure segregation. See Milliken v. Bradley, 433 U. S. 267, 281-288 (1977) (Milliken II) (upholding remedial education programs and othеr measures to redress the substandard communication skills of Afro-American students formerly placed in segregated schools). The remedial education upheld in Milliken II was needed to help prevent the stamp of inferiority placed upon Afro-American children from becoming a self-perpetuating phenomenon. See id., at 287.
Similarly, avoiding reemergence of the harm condemned in Brown I accounts for the Court‘s insistence on remedies that ensure lasting integration of formerly segregated systems. Such school districts are required to “make every effort to achieve the greatest possible degree of actual desegregation and [to] be concerned with the elimination of one-race schools.” Swann, supra, at 26 (emphasis added). See Dayton Bd. of Education v. Brinkman, 443 U. S. 526, 538 (1979); Columbus Bd. of Education v. Penick, 443 U. S. 449, 460 (1979); Raney v. Board of Education of Gould School Dist., 391 U. S. 443, 449 (1968) (endorsing the ““goal of a desegregated, non-racially operated school system [that] is rapidly and finally achieved,” quoting Kelley v. Altheimer, 378 F. 2d 483, 489 (CA8 1967) (emphasis added)). This focus on “achieving and preserving an integrated school system,” Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 251, n. 31 (1973) (Powell, J., concurring in part and dissent-
Just as it is central to the standard for evaluating the formation of a desegregation decree, so should the stigmatic injury associated with segregated schools be central to the standard for dissolving a decree. The Court has indicated that “the ultimate end to be brought about” by a desegregation remedy is “a unitary, nonracial system of public education.” Green, supra, at 436. We have suggested that this aim is realized once school officials have “eliminate[d] from the public schools all vestiges of state-imposed segregation,” Swann, supra, at 15 (emphasis added), whether they inhere in the school‘s “faculty, staff, transportation, extracurricular activities and facilities,” Green, supra, at 435, or even in “the community and administration[‘s] attitudes toward [a] school,” Keyes, supra, at 196. Although the Court has never explicitly defined what constitutes a “vestige” of state-enforced segregation, the function that this concept has per-
B
The majority suggests a more vague and, I fear, milder standard. Ignoring the harm identified in Brown I, the majority asserts that the District Court should find that the purposes of the decree have been achieved so long as “the Oklahoma City School District [is now] being operated in compliance with the commands of the Equal Protection Clause” and “it [is] unlikely that the Board would return to its former ways.” Ante, at 247. Insofar as the majority instructs the District Court, on remand, to “conside[r] whether the vestiges of de jure segregation ha[ve] been eliminated as far as practicable,” ante, at 250, the majority presumably views elimination of vestiges as part of “operat[ing] in compliance with the commands of the Equal Protection Clause.” But as to the scope or meaning of “vestiges,” the majority says very little.
By focusing heavily on present and future compliance with the
III
Applying the standard I have outlined, I would affirm the Court of Appeals’ decision ordering the District Court to restore the desegregation decree. For it is clear on this record that removal of the decree will result in a significant number of racially identifiable schools that could be eliminated.
As I have previously noted:
“Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that ‘[t]he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools.’ 402 U. S., at 26. There is ‘a presumption,’ we stated, ‘against schools that are substantially disproportionate in their racial composition.’ Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e. g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, 407 U. S. 451 (1972). For a principal end of any desegregation remedy is to ensure that it is no longer ‘possible to identify a “white school” or a “Negro school,“’ Swann, supra, at 18. The evil to be remedied in the dismantling of a dual system is the [r]acial identification of the
system‘s schools.’ Green, 391 U. S., at 435. The goal is a system without white schools or Negro schools—a system with ‘just schools.’ Id., at 442. A school authority‘s remedial plan or a district court‘s remedial decree is to be judged by its effectiveness in achieving this end. See Swann, supra, at 25; Davis [v. Board of School Comm‘rs of Mobile County, 402 U. S. 33, 37 (1971)]; Green, supra, at 439.” Milliken I, 418 U. S., at 802-803 (MARSHALL, J., dissenting).
Against the background of former state-sponsorship of one-race schools, the persistence of racially identifiable schools perpetuates the message of racial inferiority associated with segregation. Therefore, such schools must be eliminated whenever feasible.
It is undisputed that replacing the Finger Plan with a system of neighborhood school assignments for grades K-4 resulted in a system of racially identifiable schools. Under the SRP, over one-half of Oklahoma City‘s elementary schools now have student bodies that are either 90% Afro-American or 90% non-Afro-American. See supra, at 255. Because this principal vestige of de jure segregation persists, lifting the decree would clearly be premature at this point. See Davis v. East Baton Rouge Parish School Bd., 721 F. 2d 1425, 1434 (CA5 1983) (“[T]he continued existence of one-race schools is constitutionally unacceptable when reasonable alternatives exist“).
The majority equivocates on the effect to be given to the reemergence of racially identifiable schools. It instructs the District Court to consider whether those “most important indicia of a segregated system” have been eliminated, reciting the facets of segregated school operations identified in Green—““faculty, staff, transportation, extracurricular activities and facilities.“’ Ante, at 250. And, by rendering “res nova” the issue whether residential segregation in Oklahoma City is a vestige of former school segregation, ante at 250, n. 2, the majority accepts at least as a theoretical possibility
This equivocation is completely unsatisfying. First, it is well established that school segregation “may have a profound reciprocal effect on the racial composition of residential neighborhoods.” Keyes, 413 U. S., at 202; see also Columbus Bd. of Education, 443 U. S., at 465, n. 13 (acknowledging the evidence that “school segregation is a contributing cause of housing segregation“). The record in this case amply demonstrates this form of complicity in residential segregation on the part of the Board.8 The District Court
Second, there is no basis for the majority‘s apparent suggestion that the result should be different if residential segregation is now perpetuated by “private decisionmaking.” The District Court‘s conclusion that the racial identity of the northeast quadrant now subsists because of “personal preference[s],” 677 F. Supp., at 1512, pays insufficient attention to the roles of the State, local officials, and the Board in creating what are now self-perpetuating patterns of residential segregation. Even more important, it fails to account for the unique role of the School Board in creating “all-Negro” schools clouded by the stigma of segregation—schools to which white parents would not opt to send their children. That such negative “personal preferences” exist should not absolve a school district that played a role in creating such “preferences” from its obligation to desegregate the schools to the maximum extent possible.9
We should keep in mind that the court‘s active supervision of the desegregation process ceased in 1977. Retaining the decree does not require a return to active supervision. It may be that a modification of the decree which will improve its effectiveness and give the school district more flexibility in minimizing busing is appropriate in this case. But retaining the decree seems a slight burden on the school district compared with the risk of not delivering a full remedy to the Afro-American children in the school system.12
IV
Consistent with the mandate of Brown I, our cases have imposed on school districts an unconditional duty to eliminate any condition that perpetuates the message of racial inferiority inherent in the policy of state-sponsored segregation. The racial identifiability of a district‘s schools is such a condition. Whether this “vestige” of state-sponsored segregation will persist cannot simply be ignored at the point where a district court is contemplating the dissolution of a desegregation decree. In a district with a history of state-sponsored school segregation, racial separation, in my view, remains inherently unequal.
I dissent.