COLUMBUS BOARD OF EDUCATION ET AL. v. PENICK ET AL.
No. 78-610
Supreme Court of the United States
Argued April 24, 1979-Decided July 2, 1979
443 U.S. 449
Samuel H. Porter argued the cause for petitioners. With him on the briefs were Earl F. Morris and Curtis A. Loveland.
Thomas I. Atkins argued the cause for respondents. With him on the brief were Richard M. Stein, William L. Taylor, Nathaniel R. Jones, Louis R. Lucas, William E. Caldwell, Paul R. Dimond, Robert A. Murphy, Richard S. Kohn, and Norman J. Chachkin. Mark O‘Neill filed a brief for the Ohio State Board of Education et al. as respondents under this Court‘s Rule 21 (4).
Assistant Attorney General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Wallace, Sara Sun Beale, Brian K. Landsberg, and Robert J. Reinstein.*
*Briefs of amici curiae urging reversal were filed by Richard S. Gebelein, Attorney General of Delaware, Regina M. Small, Deputy Attorney General, Mason E. Turner, Jr., James T. McKinstry, and Philip B. Kurland for the Delaware State Board of Education et al.; and by Charles E. Brown and Ira Owen Kane for the Neighborhood School Coordinating Committee et al.
Briefs of amici curiae urging affirmance were filed by Burt Neuborne, E. Richard Larson, Robert Allen Sedler, Winn Newman, and Carole W. Wilson for the American Civil Liberties Union et al.; by Arthur J. Lesemann for the Fair Housing Council of Bergen County, N. J.; by Jack Greenberg, James M. Nabrit III, Bill Lann Lee, Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, and John Fillion for the NAACP Legal Defense and Educational Fund, Inc., et al.; and by Stephen J. Pollak, Richard M. Sharp, Wendy S. White, and David Rubin for the National Education Association et al.
Briefs of amici curiae were filed by Harriet F. Pilpel, Nathan Z. Dershowitz, and Joseph B. Robison for the American Jewish Congress; and by Duane W. Krohnke for Special School District No. 1, Minneapolis, Minn.
The public schools of Columbus, Ohio, are highly segregated by race. In 1976, over 32% of the 96,000 students in the system were black. About 70% of all students attended schools that were at least 80% black or 80% white. 429 F. Supp. 229, 240 (SD Ohio 1977). Half of the 172 schools were 90% black or 90% white. 583 F. 2d 787, 800 (CA6 1978). Fourteen named students in the Columbus school system brought this case on June 21, 1973, against the Columbus Board of Education, the State Board of Education, and the appropriate local and state officials.1 The second amended complaint, filed on October 22, 1974, charged that the Columbus defendants had pursued and were pursuing a course of conduct having the purpose and effect of causing and perpetuating segregation in the public schools, contrary to the
The trial court summarized its findings:
“From the evidence adduced at trial, the Court has found earlier in this opinion that the Columbus Public Schools were openly and intentionally segregated on the basis of race when Brown [v. Board of Education, 347 U. S. 483 (Brown I)] was decided in 1954. The Court has found that the Columbus Board of Education never actively set out to dismantle this dual system. The Court has found that until legal action was initiated by the
Columbus Area Civil Rights Council, the Columbus Board did not assign teachers and administrators to Columbus schools at random, without regard for the racial composition of the student enrollment at those schools. The Columbus Board even in very recent times . . . has approved optional attendance zones, discontiguous attendance areas and boundary changes which have maintained and enhanced racial imbalance in the Columbus Public Schools. The Board, even in very recent times and after promising to do otherwise, has adjured [sic] workable suggestions for improving the racial balance of city schools.
“Viewed in the context of segregative optional attendance zones, segregative faculty and administrative hiring and assignments, and the other such actions and decisions of the Columbus Board of Education in recent and remote history, it is fair and reasonable to draw an inference of segregative intent from the Board‘s actions and omissions discussed in this opinion.” Id., at 260-261.
The District Court‘s ultimate conclusion was that at the time of trial the racial segregation in the Columbus school system “directly resulted from [the Board‘s] intentional segregative acts and omissions,” id., at 259, in violation of the Equal Protection Clause of the
Following decision by this Court in Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977) (Dayton I), in June 1977, and in response to a motion by the Columbus Board, the District Court rejected the argument that Dayton I required or permitted any modification of its findings or judgment. It reiterated its conclusion that the Board‘s “liability in this case concerns the Columbus School District as a whole,” App. to Pet. for Cert. 94, quoting 429 F. Supp., at 266, asserting that,
Based on its own examination of the extensive record, the Court of Appeals affirmed the judgments entered against the local defendants.2 583 F. 2d 787. The Court of Appeals could not find the District Court‘s findings of fact clearly erroneous. Id., at 789. Indeed, the Court of Appeals examined in detail each set of findings by the District Court and found strong support for them in the record. Id., at 798, 804, 805, 814. The Court of Appeals also discussed in detail and found unexceptionable the District Court‘s understanding and application of the
Implementation of the desegregation plan was stayed pending our disposition of the case. 439 U. S. 1348 (1978) (REHNQUIST, J., in chambers). We granted the Board‘s petition for certiorari, 439 U. S. 1066 (1979), and we now affirm the judgment of the Court of Appeals.
I
The Board earnestly contends that when this case was brought and at the time of trial its operation of a segregated school system was not done with any general or specific racially discriminatory purpose, and that whatever unconsti-
We have discovered no reason, however, to disturb the judgment of the Court of Appeals, based on the findings and conclusions of the District Court, that the Board‘s conduct at the time of trial and before not only was animated by an unconstitutional, segregative purpose, but also had current, segregative impact that was sufficiently systemwide to warrant the remedy ordered by the District Court.
These ultimate conclusions were rooted in a series of constitutional violations that the District Court found the Board to have committed and that together dictated its judgment and decree. In each instance, the Court of Appeals found the District Court‘s conclusions to be factually and legally sound.
A
First, although at least since 1888 there had been no statutory requirement or authorization to operate segregated schools,4 the District Court found that in 1954, when Brown v.
Based on its own examination of the record, the Court of Appeals agreed with the District Court in this respect, observing that, “[w]hile the Columbus school system‘s dual black-white character was not mandated by state law as of 1954, the record certainly shows intentional segregation by the Columbus Board. As of 1954 the Columbus School Board had ‘carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers and facilities within the school system.‘” 583 F. 2d, at 798-799, quoting Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 201-202 (1973).
The Board insists that, since segregated schooling was not commanded by state law and since not all schools were wholly black or wholly white in 1954, the District Court was not war-
B
Second, both courts below declared that since the decision in Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II), the Columbus Board has been under a continuous constitutional obligation to disestablish its dual school system and that it has failed to discharge this duty. App. to Pet. for Cert. 94; 583 F. 2d, at 799. Under the
Where a racially discriminatory school system has been found to exist, Brown II imposes the duty on local school boards to “effectuate a transition to a racially nondiscriminatory school system.” 349 U. S., at 301. ”Brown II was a call for the dismantling of well-entrenched dual systems,” and school boards operating such systems were “clearly charged
The Green case itself was decided 13 years after Brown II. The core of the holding was that the school board involved had not done enough to eradicate the lingering consequences of the dual school system that it had been operating at the time Brown I was decided. Even though a freedom-of-choice plan had been adopted, the school system remained essentially a segregated system, with many all-black and many all-white schools. The board‘s continuing obligation, which had not been satisfied, was “to come forward with a plan that promises realistically to work now . . . until it is clear that state-imposed segregation has been completely removed.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 13 (1971), quoting Green, supra, at 439 (emphasis in original).
AS THE CHIEF JUSTICE‘S opinion for a unanimous Court in Swann recognized, Brown and Green imposed an affirmative duty to desegregate. “If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. . . . 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.” 402 U. S., at 15-16. In Swann, it should be recalled, an initial desegregation plan had been entered in 1965 and had been affirmed on appeal. But the case was reopened, and in 1969 the school board was required to come
In determining whether a dual school system has been disestablished, Swann also mandates that matters aside from student assignments must be considered:
“[W]here it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.” 402 U. S., at 18.
Further, Swann stated that in devising remedies for legally imposed segregation the responsibility of the local authorities and district courts is to ensure that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual school system. Id., at 20-21. As for student assignments, the Court said:
“No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority‘s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority‘s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory.” Id., at 26.
The Board‘s continuing “affirmative duty to disestablish the dual school system” is therefore beyond question, McDaniel
C
Third, the District Court not only found that the Board had breached its constitutional duty by failing effectively to eliminate the continuing consequences of its intentional systemwide segregation in 1954, but also found that in the intervening years there had been a series of Board actions and practices that could not “reasonably be explained without reference to racial concerns,” id., at 241, and that “intentionally aggravated, rather than alleviated,” racial separation in the schools. App. to Pet. for Cert. 94. These matters included the general practice of assigning black teachers only to those schools with substantial black student populations, a practice that was terminated only in 1974 as the result of a conciliation agreement with the Ohio Civil Rights Commission; the intentionally segregative use of optional attendance zones,8 discon-
Another example involved the former Mifflin district that had been absorbed into the Columbus district. The Board staff presented two alternative means of drawing necessary attendance zones: one that was desegregative and one that was segregative. The Board chose the segregative option, and the District Court was unpersuaded that it had any legitimate educational reasons for doing so. Id., at 248-250.
Notes
In discussing the Brown II mandate, this Court in Cooper v. Aaron, supra, at 7, observed:
“Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children.”
A similar limited expectation pervades Goss v. Board of Education, supra, where this Court invalidated court-ordered desegregation plans which permitted transfers on the basis of race. Specifically, the desegregation plan called for the redrawing of school districts without reference to race, but explicitly authorized transfers by students of one race from a school where their race was a minority to a school where their race was a majority. There was no provision for majority-to-minority school transfers. This Court objected to the explicit racial character of the transfer program.
“Our task then is to decide whether these transfer provisions are . . . unconstitutional. In doing so, we note that if the transfer provisions were made available to all students regardless of their race and regardless as well of the racial composition of the school to which he requested transfer we would have an entirely different case. Pupils could then at their option (or that of their parents) choose, entirely free of any imposed racial considerations, to remain in the school of their zone or transfer to another.” 373 U. S., at 687.
Griffin v. School Board, supra, involved a situation where a school system literally closed down its schools rather than desegregate. The decree endorsed by this Court, in the face of massive resistance, was simply an order to the school board requiring it to admit students without regard to race to a white high school and to make plans for admissions to elementary schools without regard to race.
Four other cases came down the same day as Swann. One was dismissed for lack of jurisdiction, Moore v. Charlotte-Mecklenburg Board of Education, 402 U. S. 47 (1971); one upheld a declaration that a North Carolina antibusing law was unconstitutional, North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971); and another remanded a remedy order for reconsideration in light of criteria laid down in Swann, Davis v. Board of School Comm‘rs of Mobile County, 402 U. S. 33 (1971). The final case, McDaniel v. Barresi, 402 U. S. 39 (1971), invalidated a state-court order barring on federal grounds a formerly statutory dual system‘s voluntary transition to a modified neighborhood school policy.
“If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system ‘root and branch.‘” 413 U. S., at 213.
“[T]his record actually requires no reliance upon inference, since, as indicated above, it contains repeated instances where the Columbus Board was
“[s]ince the 1954 Brown decision, the Columbus defendants or their predecessors were adequately put on notice of the fact that action was required to correct and to prevent the increase in” segregation, yet failed to heed their duty to alleviate racial separation in the schools. 429 F. Supp., at 255.12
II
Against this background, we cannot fault the conclusion of the District Court and the Court of Appeals that at the time of trial there was systemwide segregation in the Columbus schools that was the result of recent and remote intention-
Nor do we discern that the judgments entered below rested on any misapprehension of the controlling law. It is urged that the courts below failed to heed the requirements of Keyes, Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), that a plaintiff seeking to make out an equal protection violation on the basis of racial discrimination must show purpose. Both courts, it is argued, considered the requirement satisfied if it were shown that disparate impact would be the natural and foreseeable consequence of the practices and policies of the Board, which, it is said, is nothing more than equating impact with intent, contrary to the controlling precedent.
The District Court, however, was amply cognizant of the controlling cases. It is understood that to prevail the plaintiffs were required to “‘prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action,‘” 429 F. Supp., at 251, quoting Keyes, 413 U. S., at 198-that is, that the school officials had “intended to segregate.” 429 F. Supp., at 254. See also 583 F. 2d, at 801. The District Court also recognized that under those cases disparate impact and foreseeable consequences, without more, do not establish a constitutional violation. See, e. g., 429 F. Supp., at 251. Nevertheless, the District Court correctly noted that actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose. Those cases do not forbid “the foreseeable
It is also urged that the District Court and the Court of Appeals failed to observe the requirements of our recent decision in Dayton I, which reiterated the accepted rule that the remedy imposed by a court of equity should be commensurate with the violation ascertained, and held that the remedy for the violations that had then been established in that case should be aimed at rectifying the “incremental segregative effect” of the discriminatory acts identified.13 In Dayton I, only a few apparently isolated discriminatory practices had
warned of the segregative effect of proposed site choices, and was urged to consider alternatives which could have had an integrative effect. In these instances the Columbus Board chose the segregative sites. In this situation the District Judge was justified in relying in part on the history of the Columbus Board‘s site choices and construction program in finding deliberate and unconstitutional systemwide segregation.” 583 F. 2d, at 804. The reliance on school construction was critical. As the Court of Appeals found, the other post-1954 incidents relied on by the District Court were “isolated,” 583 F. 2d, at 805, and therefore could not have constituted a basis for a systemwide remedy. Dayton I, 433 U. S. 406 (1977). And the only other conduct arguably having systemwide implications, racial assignment of teachers, had been corrected, was not the subject of any remedial order, 429 F. Supp. 229, 238, 260 (SD Ohio 1977), and, in any event, could not itself support the systemwide remedy under the Sixth Circuit‘s own precedents. Higgins v. Board of Education of City of Grand Rapids, 508 F. 2d 779 (CA6 1974); see Dayton II, post, at 536 n. 9.“School board policies of systemwide application neces-
The Gladstone Elementary School opened in 1965. The “violation” inherent in that siting is described as follows by the District Court and this passage is quoted and fully adopted by the Court of Appeals.
“The need for greater school capacity in the general Duxberry area would have been logically accommodated by the construction of Gladstone north of its present location, nearer to Hudson Street. This would, of course, require some redrawing of boundary lines in order to accommodate the need for class space in Hamilton and Duxberry. If, however, the boundary lines had been drawn on a north-south pattern rather than an east-west pattern, as some suggested, the result would have been an integrative effect on Hamilton, Duxberry and the newly-constructed school.” 429 F. Supp., at 242, quoted in 583 F. 2d, at 803.
Thus, the placement of Gladstone is a violation—not because the placement was racially motivated, it was demonstrably not so—but because another site would have had a more integrative impact, and it is a violation despite the determination by the Bureau of Educational Research that objective and legitimate educational criteria militated in favor of the Gladstone site.
The secondary status of educational objectives other than integration is even more obvious in the discussion of the Sixth Avenue School where the District Court characterized the relevant inquiry as whether “the objectives of racial integration would have been better served” by a different site and different boundaries. 429 F. Supp., at 243. The Sixth Avenue School does not exist any more, and students within its old boundaries attend two neighboring, racially balanced schools.
“[T]he measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the
But the cases relied on by the Court, ante, at 459, to establish this affirmative duty and its implications—Dayton I, Wright v. Council of City of Emporia, 407 U. S. 451 (1972), and United States v. Scotland Neck Board of Education, 407 U. S. 484 (1972)—bear absolutely no relation to the analysis in this case. The pages cited from Dayton I simply endorse a Court of Appeals’ observation that there is nothing wrong with a school board rescinding resolutions it was under no duty to promulgate; as I have indicated, the analysis set out in Dayton I is entirely inconsistent with the “affirmative duty” invoked by the courts below. See n. 8, supra. The citation to Wright is equally mysterious. The city of Emporia is located in Greensville County, Va. Up until 1968, it was part of Greensville County‘s public school system. A desegregation lawsuit was initiated in 1965 and resulted in a court-ordered “freedom-of-choice” desegregation plan for the Greensville County schools, including those within the city of Emporia. After Green, the court modified its decree and ordered pairing of certain schools. The city of Emporia then announced its intention to withdraw its schools from the Greensville County school system. The District Court enjoined it from doing so because Emporia‘s schools had been part of the adjudicated dual system, and the court‘s decree would be frustrated by withdrawal of the Emporia schools. In contrast the instant case has nothing to do with frustrating outstanding court orders.
United States v. Scotland Neck Board of Education, supra, was a case where the United States Department of Justice had been negotiating with the County School Board of Halifax County, N. C., in an attempt to bring it into compliance with federal law. In 1965, the schools of Halifax County were completely segregated on the basis of race. An agreement was reached that was designed to make the Halifax County school system unitary by the 1969 school year. However, in 1969, the North Carolina Legislature authorized a new independent school district in the middle of Halifax County which was to be bounded by the city limits of Scotland Neck. The United States promptly filed suit seeking desegregation of the Halifax County schools and an injunction blocking Scotland Neck‘s withdrawal. The District Court ordered desegregation of the Halifax County schools and enjoined creation of the independent Scotland Neck district. This Court held, quoting Wright, that if the
There is a policy judgment sometimes made, which “should not be overemphasized,” id., at 787, that the facts on a particular issue are so peculiarly within the knowledge of a certain party that the burden of proof on that issue should be allocated to him. Whatever the merits of the burden-shift to the school board where contemporaneous board decisions are at issue, see Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S., at 262-263 (REHNQUIST, J., dissenting), they do not commend a burden-shift regarding conduct 25 or more years ago.
The Court charges that in questioning the propriety of employing the Keyes burden-shift in this case, we “claim a better grasp of the historical and ultimate facts than the two courts below had.” Ante, at 457 n. 6. But the Keyes burden-shift is not an ultimate finding of fact at all. It is a creature of this Court, brought into play by the making of only a prima facie showing, and applied in this case in a completely novel way. To criticize its use is not to upset “factfinding,” but to criticize the absence of findings of fact which have heretofore been thought necessary in order to support the sort of remedy imposed by the District Court. Its use here is surely no less a subject for this Court‘s review than it was in Keyes itself.
“The finding of liability in this case concerns the Columbus school district as a whole. Actions and omissions by public officials which tend to make black schools blacker necessarily have the reciprocal effect of making white schools whiter. ‘[I]t is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating “feeder” schools on the basis of race has the reciprocal effect of keeping
sarily have systemwide impact. 1) The pre-1954 policy of creating an enclave of five schools intentionally designed for black students and known as ‘black’ schools, as found by the District Judge, clearly had a ‘substantial‘-indeed, a systemwide-impact. 2) The post-1954 failure of the Columbus Board to desegregate the school system in spite of many requests and demands to do so, of course, had systemwide impact. 3) So, too, did the Columbus Board‘s segregative school construction and siting policy as we have detailed it above. 4) So too did its student assignment policy which, as shown above, produced the large majority of racially identifiable schools as of the school year 1975-76. 5) The practice of assigning black teachers and administrators only or in large majority to black schools likewise represented a systemwide policy of segregation. This policy served until July 1974 to deprive black students of opportunities for contact with and learning from white teachers, and conversely to deprive white students of similar opportunities to meet, know and learn from black teachers. It also served as discriminatory, systemwide racial identification of schools.” 583 F. 2d, at 814.
Nor do we perceive any misuse of Keyes, where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial
Because the District Court and the Court of Appeals committed no prejudicial errors of fact or law, the judgment appealed from must be affirmed.
So ordered.
MR. CHIEF JUSTICE BURGER, concurring in the judgment.
I perceive no real difference in the legal principles stated in the dissenting opinions of MR. JUSTICE REHNQUIST and MR. JUSTICE POWELL on the one hand and the opinion of MR. JUSTICE STEWART concurring in the result in this case on the other; they differ only in their view of the District Court‘s role in applying these principles in the finding of facts.
Like MR. JUSTICE REHNQUIST, I have serious doubts as to how many of the post-1954 actions of the Columbus Board of Education can properly be characterized as segregative in intent and effect. On this record I might very well have concluded that few of them were. However, like MR. JUSTICE STEWART, I am prepared to defer to the trier of fact because I find it difficult to hold that the errors rise to the level of “clearly erroneous” under Rule 52. The District Court did find facts sufficient to justify the conclusion reached by MR. JUSTICE STEWART that the school “district was not being operated in a racially neutral manner” and that the Board‘s actions affected “a meaningful portion” of the school system. Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 208 (1973). For these reasons I join MR. JUSTICE STEWART‘S opinion.
In joining that opinion, I must note that I agree with much
I also agree with many of the concerns expressed by MR. JUSTICE POWELL with regard to the use of massive transportation as a “remedy.” It is becoming increasingly doubtful that massive public transportation really accomplishes the desirable objectives sought. Nonetheless our prior decisions have sanctioned its use when a constitutional violation of sufficient magnitude has been found. We cannot retry these sensitive and difficult issues in this Court; we can only set the general legal standards and, within the limits of appellate review, see that they are followed.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE joins, concurring in the result in No. 78-610 and dissenting in No. 78-627, post, p. 526.
My views in these cases differ in significant respects from those of the Court, leading me to concur only in the result in the Columbus case, and to dissent from the Court‘s judgment in the Dayton case.
It seems to me that the Court of Appeals in both of these cases ignored the crucial role of the federal district courts in school desegregation litigation1—a role repeatedly emphasized
Whether actions that produce racial separation are intentional within the meaning of Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 (1973); Washington v. Davis, 426 U. S. 229 (1976); and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), is an issue that can present very difficult
My second disagreement with the Court in these cases stems from my belief that the Court has attached far too much importance in each case to the question whether there existed a “dual school system” in 1954. As I understand the Court‘s opinions in these cases, if such an officially authorized segregated school system can be found to have existed in 1954, then any current racial separation in the schools will be presumed to have been caused by acts in violation of the Constitution. Even if, as the Court says, this presumption is rebuttable, the burden is on the school board to rebut it. And, when the factual issues are as elusive as these, who bears the burden of proof can easily determine who prevails in the litigation. Speiser v. Randall, 357 U. S. 513, 525-526 (1958).
I agree that a school district in violation of the Constitution in 1954 was under a duty to remedy that violation. So was a school district violating the Constitution in 1964, and so is one violating the Constitution today. But this duty does not justify a complete shift of the normal burden of proof.4
Presumptions are sometimes justified because in common experience some facts are likely to follow from others. See Ulster County Court v. Allen, 442 U. S. 140 (1979); Sandstrom v. Montana, 442 U. S. 510 (1979). A constitutional violation in 1954 might be presumed to make the existence of a constitutional violation 20 years later more likely than not in one of two ways. First, because the school board then had an invidious intent, the continuing existence of that collective state of mind might be presumed in the absence of proof to the contrary. Second, quite apart from the current intent of the school board, an unconstitutionally discriminatory school system in 1954 might be presumed still to have major effects on the contemporary system. Neither of these possibilities seems to me likely enough to support a valid presumption.
Much has changed in 25 years, in the Nation at large and in Dayton and Columbus in particular. Minds have changed with respect to racial relationships. Perhaps more importantly, generations have changed. The prejudices of the school boards of 1954 (and earlier) cannot realistically be assumed to haunt the school boards of today. Similarly, while two full generations of students have progressed from kindergarten through high school, school systems have changed. Dayton and Columbus are both examples of the dramatic growth and change in urban school districts.5 It is unrealistic
Because of these basic disagreements with the Court‘s approach, these two cases look quite different to me from the way they look to the Court. In both cases, there is no doubt that many of the districts’ children are in schools almost solely with members of their own race. These racially distinct areas make up substantial parts of both districts. The question remains, however, whether the plaintiffs showed that this racial separation was the result of intentional systemwide discrimination.
The Dayton case
After further hearings following the remand by this Court in the first Dayton case, the District Court dismissed this lawsuit. It found that the plaintiffs had not proved a discriminatory purpose behind many of the actions challenged. It found further that the plaintiffs had not proved that any significant segregative effect had resulted from those few practices that the school board had previously undertaken with an invalid intent. The Court of Appeals held these findings to be clearly erroneous. I cannot agree.
As to several claimed acts of post-1954 discrimination, the Court of Appeals seems simply to have differed with the trial court‘s factual assessments, without offering a reasoned explanation of how the trial court‘s finding fell short.6 The
Furthermore, the Court of Appeals relied heavily on the proposition that the Dayton School District was a “dual system” in 1954, and today this Court places great stress on the same foundation. In several instances, the Court of Appeals overturned the District Court‘s findings of fact because of the trial court‘s failure to shift the burden of proof.7 Because I think this shifting of the burden is wholly unjustified, it seems to me a serious mistake to upset the District Court‘s findings on any such basis. If one accepts the facts as found by the District Judge, there is almost no basis for finding any constitutional violations after 1954. Nor is there any substantial
For the reasons I have expressed, I dissent from the opinion and judgment of the Court.
The Columbus case
In contrast, the Court of Appeals did not upset the District Court‘s findings of fact in this case. In a long and careful opinion, the District Judge discussed numerous examples of overt racial discrimination continuing into the 1970‘s.8 Just
The Court of Appeals did rely in part on its finding that the Columbus Board operated a dual school system in 1954, as does this Court. But evidence of recent discriminatory intent, so lacking in the Dayton case, was relatively strong in this case. The particular illustrations recounted by the District Court may not have affected a large portion of the school district, but they demonstrated that the district was not being operated in a racially neutral manner. The District Court found that the Columbus Board had intentionally discriminated against Negro students in some schools, and that there was substantial racial separation throughout the district. The question in my judgment is whether the District Court‘s conclusion that there had been a systemwide constitutional violation can be upheld on the basis of those findings, without reference to an affirmative duty stemming from the situation in 1954.
I think the Court‘s decision in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 (1973), provides the answer:
“[W]e hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case
of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.” Id., at 208.
The plaintiffs in the Columbus case, unlike those in the Dayton case, proved what the Court in Keyes defined as a prima facie case.9 The District Court and the Court of Appeals correctly found that the school board did not rebut this presumption. It is on this basis that I agree with the District Court and the Court of Appeals in concluding that the Columbus School District was operated in violation of the Constitution.
The petitioners in the Columbus case also challenge the remedy imposed by the District Court. Just two Terms ago we set out the test for determining the appropriate scope of a remedy in a case such as this:
“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 school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.” Dayton I, 433 U. S., at 420.
The District Court in this case did allow the defendants to show just that. The school board proposed several remedies, but it put forward only one plan that was limited by the allegedly limited effects of the violation. That plan would have remedied racial imbalance only in the schools mentioned in the District Court‘s opinion. Another remedy proposed by the school board would have resulted in a rough racial balance in all but 22 “all-white” schools. But the board did not assert that those schools had been unaffected by the violations. Instead, it justified that plan on the ground that it would bring the predominately Negro schools into balance with no need to involve the 22 all-white schools on the periphery of the district. The District Court rejected this plan, finding that it would not offer effective desegregation since it would leave those 22 schools available for “white flight.” The plan ultimately adopted by the District Court used the Negro school population of Columbus as a benchmark, and decreed that all the public schools should be 32% minority, plus or minus 15%.
Although, as the Court stressed in Green v. County School Board, 391 U. S. 430 (1968), a remedy is to be judged by its effectiveness, effectiveness alone is not a reason for extending a remedy to all schools in a district. An easily visible correlation between school segregation and residential segregation cannot by
The remedy adopted by the District Court used numerical guidelines, but it was not for that reason invalid. As this Court said in Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971):
“Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.” Id., at 25.
On this record, therefore, I cannot say that the remedy was improper.
For these reasons, I concur in the result in Columbus Board of Education v. Penick, and dissent in Dayton Board of Education v. Brinkman.
MR. JUSTICE POWELL, dissenting.*
I join the dissenting opinions of MR. JUSTICE REHNQUIST and write separately to emphasize several points. The Court‘s opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remark-
I
MR. JUSTICE REHNQUIST‘s dissents demonstrate that the Court‘s decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of “presumptions,” not one of which is close enough to reality to be reasonable. See ante, at 472 (opinion of STEWART, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a systemwide remedy prescribing racial balance in each and every school.
There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, which in turn—are caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school
“In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.” A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970).1
Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976), federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages.
The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boards—particularly in the great cities of the North, Midwest, and West—are taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 223-236 (1973), de facto segregation has existed on a large scale in many of these cities,
MR. JUSTICE REHNQUIST has dealt devastatingly with the
II
Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus systems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boards—under court supervision—will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today‘s decisions as surely as it has in other cities subjected to similar sweeping decrees.
The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education.3 Moreover, it constitutes a serious interference
These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts’ orders. Parents, unlike school officials, are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education,4 experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority:
“An implication that should have been seen all along but can no longer be ignored is that a child‘s enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child‘s enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents’ active cooperation in implementing school policies.” Coleman, New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978).
Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools.5 As a result,
III
If public education is not to suffer further, we must “return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert.” Id., at 253. The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal.
For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools.6 Experience in recent
The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authorities—no matter how willing they may
School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann, though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities:
“An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority [or less in the majority] is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move.” 402 U. S., at 26-27.
See also Keyes, 413 U. S., at 240-241 (opinion of POWELL, J.). Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds. 1976). These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See Milliken v. Bradley, 418 U. S. 717 (1974); cf. Coleman, 7 Human Rights, at 48-49.7
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE POWELL joins, dissenting.
The school desegregation remedy imposed on the Columbus school system by this Court‘s affirmance of the Court of Appeals is as complete and dramatic a displacement of local authority by the federal judiciary as is possible in our federal system. Pursuant to the District Court‘s order, 42,000 of the system‘s 96,000 students are reassigned to new schools. There are like reassignment of teachers, staff, and administrators, reorganization of the grade structure of virtually every
It is difficult to conceive of a more serious supplantation because, as this Court recognized in Brown v. Board of Education, 347 U. S. 483, 493 (1954) (Brown I), “education is perhaps the most important function of state and local governments“; indeed, it is “a vital national tradition.” Dayton Board of Education v. Brinkman, 433 U. S. 406, 410 (1977) (Dayton I); see Milliken v. Bradley, 418 U. S. 717, 741-742 (1974); Wright v. Council of City of Emporia, 407 U. S. 451, 469 (1972). That “local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process,” Milliken, supra, at 741-742, does not, of course, place the school system beyond the authority of federal courts as guardians of federal constitutional rights. But the practical and historical importance of the tradition does require that the existence of violations of constitutional rights be carefully and clearly defined before a federal court invades the traditional ambit of local control, and that the subsequent displacement of local authority be limited to that necessary to correct the identified violations. “It is for this reason that the case for displacement of the local authorities by a federal court in a school desegregation case must be satisfactorily established by factual proof and justified by a reasoned statement of legal principles.” Dayton I, supra, at 410.
I think the District Court and Court of Appeals in this case did not heed this admonition. One can search their opinions in vain for any concrete notion of what a “systemwide violation” consists of or how a trial judge is to go about determining whether such a violation exists or has existed. What logic is evident emasculates the key determinants set down in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 (1973), for proving the existence and scope of a violation warranting federal-court intervention: discriminatory purpose and a causal relationship between acts motivated by such a
Today the Court affirms the Court of Appeals for the Sixth Circuit in this case and Dayton Board of Education v. Brinkman (Dayton II), post, p. 526, in opinions so Delphic that lower courts will be hard pressed to fathom their implications for school desegregation litigation. I can only offer two suggestions. The first is that the Court, possibly chastened by the complexity and emotion that accompanies school desegregation cases, wishes to relegate the determination of a violation of the
Such an approach is, however, obviously inconsistent with the Dayton I admonition and disparages both this Court‘s oft-expressed concern for the important role of local autonomy in educational matters and the significance of the constitutional rights involved. It also holds out the disturbing prospect of very different remedies being imposed on similar school systems because of the predilections of individual judges and their good-faith but incongruent efforts to make sense of this Court‘s confused pronouncements today.1 Concepts such as
Yet, the only alternative reading of today‘s opinions, i. e., a literal reading, is even more disquieting. Such a reading would require embracing a novel analytical approach to school segregation in systems without a history of statutorily mandated separation of the races—an approach that would have dramatic consequences for urban school systems in this country. Perhaps the adjective “analytical” is out of place, since the Court‘s opinions furnish only the most superficial methodology, a framework which if it were to be adopted ought to be examined in a far more thorough and critical manner than is done by the Court‘s “lick and a promise” opinions today. Given the similar approaches employed by the Court in this case and Dayton II, this case suffices for stating what I think are the glaring deficiencies both in the Court‘s new framework and in its decision to subject the Columbus school system to the District Court‘s sweeping racial balance remedy.
I
The Court suggests a radical new approach to desegregation cases in systems without a history of statutorily mandated separation of the races: if a district court concludes—employing what in honesty must be characterized as an irrebuttable presumption—that there was a “dual” school system at the time of Brown I, 347 U. S. 483 (1954), it must find post-1954 constitutional violations in a school board‘s failure to take every affirmative step to integrate the system. Put differently, racial imbalance at the time the complaint is filed is sufficient to support a systemwide, racial balance, school busing
This logic permeates the findings of the District Court and Court of Appeals, and the latter put it most bluntly.
“[T]he District Judge on review of pre-1954 history found that the Columbus schools were de jure segregated in 1954 and, hence, the Board had a continuing constitutional duty to desegregate the Columbus schools. The pupil assignment figures for 1975-76 demonstrate the District Judge‘s conclusion that this burden has not been carried. On this basis alone (if there were no other proofs), we believe we would be required to affirm the District Judge‘s finding of present unconstitutional segregation.” 583 F. 2d 787, 800 (1978).
In Brinkman v. Gilligan, 583 F. 2d 243, 256 (CA6 1978), also affirmed today, this post-1954 “affirmative duty” is characterized as a duty “to diffuse black and white students” throughout the system.
The Court in this case apparently endorses that view. For the Court finds that “[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment,” ante, at 459, and the mere fact that at the time of suit “most blacks were still going to black schools and most whites to white schools” establishes current effect. Ante, at 461.
In order to fully comprehend the dramatic reorientation the Court‘s opinion thus implies, and its lack of any principled basis, a brief historical review is necessary. In 1954, this Court announced Brown I and struck down on equal protection grounds laws requiring or permitting school assignment of children on the basis of race. See also Bolling v. Sharpe, 347 U. S. 497 (1954). The question of remedy was reserved for a new round of briefing, and the following Term this Court
The majority concedes that this case does not involve racial assignment of students mandated by state law; Ohio abandoned any “statutory requirement or authorization to operate segregated schools” by 1888. Ante, at 455. Yet, it was precisely this type of segregation—segregation expressly mandated or permitted by state statute or constitution—that was addressed by Brown I, and the mandate of the Brown cases was that “[a]ll provisions of federal, state, or local law requiring or permitting such discrimination must yield” to “the fundamental principle that racial discrimination in public education is unconstitutional.” 349 U. S., at 298. The message of Brown II was simple and resonant because the violation was simple and pervasive.
There were, however, some issues upon which the Brown II Court was vague. It did not define what it meant by “effectuat[ing] a transition to a racially nondiscriminatory school system,” id., at 301, and therefore the next 17 years focused on the question of the appropriate remedy where racial separation had been maintained by operation of state law.
The earliest post-Brown school cases in this Court only intimated that “a transition to a racially nondiscriminatory school system” required adoption of a policy of nondiscriminatory admission.2 It was not until the 1967 Term that this
This Court found that the “freedom-of-choice” plan approved by the District Court for the desegregation of the New Kent County schools was inadequate. Noting that the “pattern of separate ‘white’ and ‘Negro’ schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed,” the Court observed that Brown II charged “[s]chool boards such as the respondent then operating state-compelled dual systems . . . with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” 391 U. S., at 435, 437-438. In the three years following court approval of the freedom-of-choice plan in New Kent County, not a single white child had chosen to attend the historically black school, which continued to serve 85% of the county‘s black schoolchildren. The Green Court concluded that a freedom-of-choice plan, in a school system such as this and in the absence of other efforts at desegregation, was not sufficient to provide the remedy mandated by Brown II. The Court suggested zoning, i. e., some variation of a neighborhood school policy, as a possible alternative remedy.3
This understanding of the “affirmative duty” was acknowledged in the first case confronting a school system without a history of state-mandated racial assignment, Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 (1973). There the Court observed:
“[W]e have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system,’ Brown v. Board of Education, 349 U. S. 294, 301 (1955) (Brown II), see also Green v. County School Board, 391 U. S. 430, 437-438 (1968), that is, to eliminate from the public schools within their school system ‘all vestiges of state-imposed segregation.’ Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971).
“This is not a case, however, where a statutory dual system has ever existed.” Id., at 200-201 (footnote omitted).
It was at this juncture that the Court articulated the proposition that has become associated with Keyes.
“Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.” Id., at 201.
The notion of an “affirmative duty” as acknowledged in Keyes is a remedial concept defining the obligation on the school board to come forward with an effective desegregation plan after a finding of a dual system. This could not be clearer in Keyes itself.
“[P]roof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system.’ Brown II, supra, at 301.” Id., at 203.7
Even so brief a history of our school desegregation jurisprudence sheds light on more than one point. As a matter of history, case law, or logic, there is nothing to support the novel proposition that the primary inquiry in school desegregation cases involving systems without a history of statutorily mandated racial assignment is what happened in those systems before 1954. As a matter of history, 1954 makes no more sense as a benchmark—indeed it makes less sense—than 1968, 1971, or 1973. Perhaps the latter year has the most to commend it, if one insists on a benchmark, because in Keyes this Court first confronted the problem of school segregation in the context of systems without a history of statutorily mandated separation of the races.
As a matter of logic, the majority‘s decision to turn the year 1954 into a constitutional Rubicon also fails. The analytical underpinnings of the concept of discriminatory purpose have received their still incomplete articulation in the 1970‘s. It is sophistry to suggest that a school board in Columbus in 1954 could have read Brown I and gleaned from it a constitutional duty “to diffuse black students throughout the . . . system” or take whatever other action the Court today thinks it should have taken. And not only was the school board to anticipate the state of the law 20 years hence, but also to have a full
Of course, there are always instances where constitutional standards evolve and parties are charged with conforming to the new standards. But I am unaware of a case where the failure to anticipate a change in the law and take remedial steps is labeled an independent constitutional violation. The difference is not simply one of characterization: the Court‘s decision today enunciates, without analysis or explanation, a new methodology that dramatically departs from Keyes by relieving school desegregation plaintiffs from any showing of a causal nexus between intentional segregative actions and the conditions they seek to remedy.
Causality plays a central role in Keyes as it does in all equal protection analysis. The Keyes Court held that before the burden of production shifts to the school board, the plaintiffs must prove “that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system.” 413 U. S., at 201 (emphasis added). The Court recognized that a trial court might find “that a lesser degree of segregated schooling . . . would not have resulted even if the Board had not acted as it did,” and “that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention.” Id., at 211. The relevance of past acts of the school board was to depend on whether “segregation resulting from those actions continues to exist.” Id., at 210.10 That inquiry is not central under the approach
The Court‘s use of the term “affirmative duty” implies that integration be the pre-eminent—indeed, the controlling—educational consideration in school board decisionmaking. It takes precedence over other legitimate educational objectives subject to some vague feasibility limitation. That implication is dramatically demonstrated in this case. Both lower courts necessarily gave special significance to the Columbus School Board‘s post-1954 school construction and siting policies as supporting the systemwide remedy in this case.11 They did not find—in fact, could not have found—that the siting and construction of schools were racially motivated. As the District Court observed:
“In 1950, pursuant to a request of the then Columbus school superintendent, the Bureau of Educational Research at The Ohio State University began a comprehensive, scientific and objective analysis of the school plant needs of the school system. The Bureau studied and re-
“The Board of Education adopted and relied upon the Bureau‘s recommendations in proposing and encouraging the passage of bond issues in 1951, 1953, 1956, 1959 and 1964. School construction of new facilities and additions to existing structures were accomplished in substantial conformity with the Bureau‘s periodic studies and recommendations.” 429 F. Supp. 229, 237-238 (SD Ohio 1977).
Thus, the Columbus Board of Education employed the most objective criteria possible in the placement of new schools. Nevertheless, the District Court and Court of Appeals found that conformity with these recommendations was a violation of the
There are two major difficulties with this use of Keyes. First, without any explanation, the Court for the first time applies it to define the character of a school system remote in time—here 25 or more years ago—without any examination of the justifications for the Keyes burden-shifting principles when those principles are used in this fashion. Their use is a matter of “‘policy and fairness,‘” 413 U. S., at 209 (quoting 9 J. Wigmore, Evidence § 2486, p. 275 (3d ed. 1940)), and I think the Keyes “presumption” scores poorly on both counts when focused on a period beyond memory and often beyond
My second concern about the Court‘s use of the Keyes presumption may render my first concern academic. For as I suggest in Part III below, the Court today endorses views regarding the neighborhood school policy and racially identifiable neighborhoods that essentially make the Keyes presumption irrebuttable.
II
The departure from established doctrines of causation and discriminatory purpose does not end with the lower courts’ preoccupation with an “affirmative duty” exhumed from the conduct of past generations to be imposed on the present without regard to the forces that actually shaped the current racial imbalance in the school system. It is also evident in their examination of post-1954 violations, which the Court refers to as “the intentionally segregative use of optional attendance zones, discontiguous attendance areas, and boundary changes.” Ante, at 461-462 (footnotes omitted).
As a preliminary matter, I note that the Court of Appeals observed, I think correctly, that these post-1954 incidents “can properly be classified as isolated in the sense that they do not form any systemwide pattern.” 583 F. 2d, at 805. All the incidents cited, let alone those that can meet a properly applied segregative intent standard, could not serve as the basis for a systemwide racial balance remedy.
In Washington v. Davis, 426 U. S. 229 (1976), Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252
This Court has not precisely defined the manner in which discriminatory purpose is to be proved. Indeed, in light of the varied circumstances in which it might be at issue, simple and precise rules for proving discriminatory purpose could not be drafted. The focus of the inquiry in a case such as this, however, is not very difficult to articulate: Is a desire to separate the races among the reasons for a school board‘s decision or particular course of action? The burden of proof on this issue is on the plaintiffs. Washington v. Davis, supra, at 244-245; Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 270.
The best evidence on this score would be a contemporaneous explanation of its action by the school board, or other less dramatic evidence of the board‘s actual purpose, which indicated that one objective was to separate the races. See Arlington Heights, supra, at 268. Objective evidence is also probative. Indeed, were it not, this case would warrant very little discussion, for all the evidence relied on by the courts below was of an “objective” nature.
But objective evidence must be carefully analyzed for it may otherwise reduce the “discriminatory purpose” requirement to a “discriminatory impact” test by another name. Private and governmental conduct in matters of general importance to the community is notoriously ambiguous, and for
” ‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. . . . It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, supra, at 279.
The maintenance of this distinction is important: both to limit federal courts to their constitutional missions and to afford school boards the latitude to make good-faith, color-blind decisions about how best to realize legitimate educational objectives without extensive post hoc inquiries into whether integration would have been better served—even at the price of other educational objectives—by another decision: a different school site, a different boundary, or a different organizational structure. In a school system with racially imbalanced schools, every school board action regarding construction, pupil assignment, transportation, annexation, and temporary facilities will promote integration, aggravate segregation, or maintain segregation. Foreseeability follows from the obviousness of that proposition. Such a tight noose on school board decisionmaking will invariably move government of a school system from the townhall to the courthouse.
The District Court in this case held that it was bound by the standard for segregative intent articulated by the Court of Appeals for the Sixth Circuit in Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (1974):
“A presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an increase or perpetuation of public school segregation.
The presumption becomes proof unless defendants affirmatively establish that their action or inaction was a consistent and resolute application of racially neutral policies.” 429 F. Supp., at 254 n. 3.
This is precisely the type of “impact” trigger for shifting the burden of proof on the intent component of an equal protection violation that we rejected in Washington v. Davis, supra. There the Court of Appeals had applied the standards of Title VII to determine whether a qualifying test for police candidates discriminated against blacks in violation of the
Indeed, reflection indicates that the District Court‘s test for segregative intent in this case is logically nothing more than the affirmative duty stated a different way. Under the test, a “presumption of segregative purpose arises when plaintiffs establish that the natural, probable, and foreseeable result
Certainly “public officials’ . . . inaction . . . perpetuat[es] . . . public school segregation” in this context. School authorities could move to pairing, magnet schools, or any other device to integrate the races. The failure to do so is a violation under Oliver unless the “inaction was a consistent and resolute application of racially neutral policies.” The policy that most school boards will rely on at trial, and the policy which the Columbus School Board in fact did rely on, is the neighborhood school policy. According to the District Court in this case, however, not only is that policy not a defense, but in combination with racially segregated housing patterns, it is itself a factor from which one can infer segregative intent and a factor in this case from which the District Court did infer segregative intent, stating that “[t]hose who rely on it as a defense to unlawful school segregation fail to recognize the high priority of the constitutional right involved.” 429 F. Supp., at 258.
I reserve judgment only because the Court at points in its opinion seems of the view that the District Court applied a test other than the Oliver test for segregative intent, despite the District Court‘s clear indication to the contrary. 429 F. Supp., at 253-254, n. 3. In fact, in Dayton II, post, at 536 n. 9, the Court expressly rejects the Oliver test, and in its opinion in this case, ante, at 464-465, indicates that the District Court treated foreseeable effects as only another bit of evidence and finds that not incompatible with this Court‘s prior cases.
“Those cases do not forbid ‘the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may be properly drawn.’ [429 F. Supp.], at 255. Adherence to a particular policy or practice, with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn. Ibid.”
I have no difficulty with the proposition that foreseeable effects are permissible considerations “as one of the several kinds of proofs” as long as they are not the only type of proof. Use of foreseeable effects in the latter fashion would be clearly inconsistent with Davis, Arlington Heights, and Feeney. But I do have great difficulty with this Court‘s taking the above
As such, the District Court‘s treatment of specific post-1954 conduct reflects the same cavalier approach to causality and purpose that underlies the 1954 affirmative duty. That determination requires no more “omnipotence and omniscience,” ante, at 457 n. 6, than similar determinations in Dayton I, Davis, and Arlington Heights. The court found violations with respect to three optional attendance zones. The Near-Bexley zone, the only zone discussed by this Court, afforded students the option to attend schools in either one of two bordering districts. The District Court found that the zone gave white students of Bexley the opportunity to avoid attending the predominantly black schools to the east. I do not think that the District Court finding can be said to be clearly erroneous despite the lack of any direct evidence on discriminatory purpose, for the School Board did not suggest any educational justification for this zone and none is apparent. But as that court recognized, the zone is of little significance as far as the current state of segregation in the school system is concerned. “The July 10, 1972, minutes of the State Board of Education . . . appear to indicate that in 1972, there were 25 public elementary school students and two public high school students residing in the optional zone.” 429 F. Supp., at 245 (emphasis added). As of 1975, the zone has been dismantled, and the District Court clearly suggests that it does not have any current effect on the Columbus school system.20
Two other optional attendance zones were identified as offen-
The final optional attendance zone demonstrates the influence of the “affirmative duty“—whether the 1954 variety or that which follows from Oliver. This optional zone was also created in 1955 in roughly the same part of Columbus. It gave some students within Highland‘s boundaries the option of attending the neighboring West Mound Street Elementary School. Again, the District Court found, this permitted transfer to a “whiter” school. But the District Court also found that there was a legitimate educational objective for creation of the zone: Highland was overcrowded and West Mound was under capacity. The District Court, however, concluded that the School Board‘s actions were objectionable because “feasible alternatives” were available; that is, other optional attendance zones could have been drawn which would have had “an integrative effect on West Mound.” This again suggests a duty on the School Board to select the most integrative alternative.
The second set of post-1954 actions faulted by the District Court were two discontiguous attendance areas. These were situations where students in a defined geographical area were assigned to a school in a zone not contiguous with their neigh-
The second discontiguous zone existed from 1957 to 1963 and permitted students on three streets within the Heimandale Elementary District to attend the “whiter” Fornof Elementary School. The Columbus School Board “inherited” this discontiguous attendance arrangement when it annexed the Marion-Franklin District in 1957. Both schools at that time were at or over capacity and when a six-classroom addition was made to Heimandale in 1963, the discontiguous zone was terminated and the children assigned to Heimandale. According to the HEW Civil Rights Survey, Heimandale today is a racially balanced school. App. 747. The District Court made no findings as to the current effect of the Board‘s 5-year retention of the Heimandale-Fornof arrangement.
The last discrete violation discussed by the District Court involved the Innis-Cassady alternative organizational proposals. These proposals involved an area of the Columbus school district that was annexed in 1971. The area had one school, the Cassady Elementary School, which was very overcrowded, and placing another school in the district was a priority for the Columbus School Board in 1972. The District Court did not fault the site chosen for the second school in the old Mifflin District. However, it inferred segregative
Thus, the Innis-Cassady discussion evinces this same affirmative duty to select the more integrative alternative and a consequent shift of the burden of proof to the School Board to prove that the segregative choice was mandated by other legitimate educational concerns. But under Washington v. Davis and Arlington Heights the burden is on the plaintiffs to show impact and purpose, and in a situation where there is “no evidence” in the record to prove or disprove a proffered justification for a school board decision, the plaintiffs have failed to establish a violation of their constitutional rights.
Secondly, the fact that a school board has once or twice or three times in the past deviated from a policy does not impugn that policy as a justification for a school board decision. There is no constitutional requirement of perfect consistency. Arlington Heights, 429 U.S., at 269. The fact that the Columbus School Board currently maintains a K-3 orga-
Thus, it is clear that with respect to a number of the post-1954 actions that the District Court found to be independent violations, foreseeability was not one kind of evidence, but the whole ball game—whether the District Court thought that result dictated by the Oliver test or the post-1954 “affirmative duty” purportedly imposed as a result of pre-1954 conduct. Those findings that could be supported by the concept of discriminatory purpose propounded in Davis and Arlington Heights were not accompanied by any effort to link those violations with current conditions of segregation in the school system. In sum, it is somewhat misleading for the Court to refer to these actions as in some sense independent of the constitutional duty it suggests that the Columbus Board assumed in 1954. And, in any event, the small number of students involved in these instances could not independently support the sweeping racial balance remedy imposed by the District Court. Cf. Dayton I, 433 U.S. 406 (1977).
III
The casualness with which the District Court and Court of Appeals assumed that past actions of the Board had a
“The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long since ceased, is to first determine whether there was any action in the conduct of the business of the school board which was intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. 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 remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy. Keyes, 413 U.S., at 213.”
See also School Dist. of Omaha v. United States, 433 U.S. 667 (1977); Brennan v. Armstrong, 433 U.S. 672 (1977).
But the majority‘s opinion takes on its most delusive
“[T]he Board was given ample opportunity to counter the evidence of segregative purpose and current, system-wide impact, and the findings of the courts below were against it in both respects.” Ante, at 468.
Specifically, the Court is alluding to the Board‘s purported failure to show that the violation was not systemwide under Keyes or that a more limited remedy should have been applied under Swann. In fact, the logic of the District Court, apparently endorsed by the Court today, turns the Swann and Keyes showings into chimeras.
Once a showing is made that the District Court believes satisfies the Keyes requirement of purposeful discrimination in a substantial part of the school system, the School Board will almost invariably rely on its neighborhood school policy and residential segregation to show that it is not responsible for the existence of certain predominantly black and white schools in other parts of the school system. Under the District Court‘s reasoning, as I have noted, not only is that evidence not probative on the Board‘s lack of responsibility, it itself supports an inference of a constitutional violation. In addition, the District Court relied on a general proposition that “there is often a substantial reciprocal effect between the color of the school and the color of the neighborhood it serves” to block any inquiry into whether racially identifiable schools were the product of racially identifiable neighborhoods or whether past discriminatory acts bore a “but for” relationship to current segregative conditions.24
“It is not now possible to isolate these factors and draw
a picture of what Columbus schools or housing would have looked like today without the other‘s influence. I do not believe that such an attempt is required. “I do not suggest that any reasonable action by the school authorities could have fully cured the evils of residential segregation. The Court could not and would not impose such a duty upon the defendants. I do believe, however, that the Columbus defendants could and should have acted to break the segregative snowball created by their interaction with housing. That is, they could and should have acted with an integrative rather than a segregative influence upon housing; they could and should have been cautious concerning the segregation influences that are exerted upon the schools by housing. They certainly should not have aggravated racial imbalance in the schools by their official actions.” 429 F. Supp., at 259 (emphasis added).
But, as the District Court recognized, other factors play an important role in determining segregated residential patterns.
“Housing segregation has been caused in part by federal agencies which deal with financing of housing, local housing authorities, financing institutions, developers, landlords, personal preferences of blacks and whites, real estate brokers and salespersons, restrictive covenants,
zoning and annexation, and income of blacks as compared to whites.” Ibid.
The Swann Court cautioned that “[t]he elimination 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 school authorities. One vehicle can carry only a limited amount of baggage.” 402 U.S., at 22. Yet today the School Board is called to task for all the forces beyond its control that shaped residential segregation in Columbus. There is thus no room for Keyes or Swann rebuttal either with respect to the school system today or that of 30 years ago.
IV
I do not suggest that the inquiry required by Dayton I and Keyes is a simple one, and reviewing courts must defer to the findings of district court judges. But appellate courts also must ensure that these judges are asking themselves the right questions: it is clear in the instant case that critical questions regarding causality and purpose were not asked at all. The city of Columbus has changed enormously in the last 25 years and with it the racial character of many neighborhoods. Incidents related here may have been paved over by years of private choice as well as undesirable influences beyond the control of school authorities, influences such as poverty and housing discrimination, both public and private. Expert testimony should play an important role in putting together the demographic history of a city and the role of a school board in it. I do not question that there were constitutional violations on the part of the Columbus School Board in the past, but there are no deterrence or retribution components of the rationale for a school desegregation remedy. The fundamental mission of such remedies is to restore those integrated educational opportunities that would now exist but for purposefully discriminatory school board conduct. Because critically important questions were neither asked nor answered
At the beginning of this dissent, far too many pages ago, I suggested that the Court‘s opinion may only communicate a “hands-off” attitude in school desegregation cases and that my concerns should therefore be institutional rather than doctrinal. School desegregation cases, however, will certainly be with this Court as long as any of its current Members, and I doubt the Court can for long, like Pilate, wash its hands of disparate results in cases throughout the country.
It is most unfortunate that the Court chooses not to speak clearly today. Dayton I and Keyes are not overruled, yet their essential messages are ignored. The Court does not intimate that it has fathomed the full implications of the analysis it has sanctioned—an approach that would certainly make school desegregation litigation a “loaded game board,” Swann, 402 U.S., at 28, but one at which a school board could never win. A school system‘s only hope of avoiding a judicial receivership would be a voluntary dismantling of its neighborhood school program. If that is the Court‘s intent today, it has indeed accepted the role of Judge Learned Hand‘s feared “Platonic Guardians,”25 and intellectual integrity—if not the