Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Implementation of School Desegregation
In the aftermath of Green, the various Courts of Appeals held inadequate an increasing number of school board plans based on
freedom of choice, on zoning which followed traditional residential patterns, or on some combination of the two.1 The Supreme Court’s next opportunity to speak on the subject came when HEW sought to withdraw desegregation plans it had submitted at court request and asked for a postponement of a court-imposed deadline, which was reluctantly granted by the Fifth Circuit. The Court unanimously reversed and announced that
continued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.2
In the October 1970 Term the Court in Swann v. Charlotte-Mecklenburg Board of Education3 undertook to elaborate the requirements for achieving a unitary school system and delineating the methods which could or must be used to achieve it, and at the same time struck down state inhibitions on the process.4 The opinion in Swann emphasized that the goal since Brown was the dismantling of an officially imposed dual school system.
Independent of student assignment, where 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.5 Although
the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law, any such situation must be closely scrutinized by the lower courts, and school officials have a heavy burden to prove that the situation is not the result of state-fostered segregation. Any desegregation plan that contemplates such a situation must before a court accepts it be shown not to be affected by present or past discriminatory action on the part of state and local officials.6 When a federal court has to develop a remedial desegregation plan, it must start with an appreciation of the mathematics of the racial composition of the school district population; its plan may rely to some extent on mathematical ratios but it should exercise care that this use is only a starting point.7
Because current attendance patterns may be attributable to past discriminatory actions in site selection and location of school buildings, the Court in Swann determined that it is permissible, and may be required, to resort to altering of attendance boundaries and grouping or pairing schools in noncontiguous fashion in order to promote desegregation and undo past official action; in this remedial process, conscious assignment of students and drawing of boundaries on the basis of race is permissible.8 Transportation of students—busing—is a permissible tool of educational and desegregation policy, inasmuch as a neighborhood attendance policy may be inadequate due to past discrimination. The soundness of any busing plan must be weighed on the basis of many factors, including the age of the students; when the time or distance of travel is so great as to risk the health of children or significantly impinge on the educational process, the weight shifts.9 Finally, the Court indicated, once a unitary system has been established, no affirmative obligation rests on school boards to adjust attendance year by year to reflect changes in composition of neighborhoods so long as the change is solely attributable to private action.10
Northern Schools: Inter- and Intradistrict Desegregation
The appearance in the Court of school cases from large metropolitan areas in which the separation of the races was not mandated by law but allegedly by official connivance through zoning of school boundaries, pupil and teacher assignment policies, and site selections, required the development of standards for determining when segregation was de jure and what remedies should be imposed when such official separation was found.11
Accepting the findings of lower courts that the actions of local school officials and the state school board were responsible in part for the racial segregation existing within the school system of the City of Detroit, the Court in Milliken v. Bradley12 set aside a desegregation order which required the formulation of a plan for a metropolitan area including the City and 53 adjacent suburban school districts. The basic holding of the Court was that such a remedy could be implemented only to cure an inter-district constitutional violation, a finding that the actions of state officials and of the suburban school districts were responsible, at least in part, for the interdistrict segregation, through either discriminatory actions within those jurisdictions or constitutional violations within one district that had produced a significant segregative effect in another district.13 The permissible scope of an inter-district order, however, would have to be considered in light of the Court’s language regarding the value placed upon local educational units.
No single tradition in public education is more deeply rooted than local control over the operation of schools; 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.14 Too, the complexity of formulating and overseeing the implementation of a plan that would effect a de facto consolidation of multiple school districts, the Court indicated, would impose a task that few, if any, judges are qualified to perform and one that would deprive the people of control of their schools through elected representatives.15
The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district.16
The controlling principle consistently expounded in our holdings, the Court wrote in the Detroit case,
is that the scope of the remedy is determined by the nature and extent of the constitutional violation.17 Although this axiom caused little problem when the violation consisted of statutorily mandated separation,18 it required a considerable expenditure of judicial effort and parsing of opinions to work out in the context of systems in which the official practice was nondiscriminatory, but official action operated to the contrary. At first, the difficulty was obscured through the creation of presumptions that eased the burden of proof on plaintiffs, but later the Court appeared to stiffen the requirements on plaintiffs.
Determination of the existence of a constitutional violation and the formulation of remedies, within one district, first was presented to the Court in a northern setting in Keyes v. Denver School District.19 The lower courts had found the school segregation existing within one part of the city to be attributable to official action, but as to the central city they found the separation not to be the result of official action and refused to impose a remedy for those schools. The Supreme Court found this latter holding to be error, holding that, when it is proved that a significant portion of a system is officially segregated, the presumption arises that segregation in the remainder or other portions of the system is also similarly contrived. The burden then shifts to the school board or other officials to rebut the presumption by proving, for example, that geographical structure or natural boundaries have caused the dividing of a district into separate identifiable and unrelated units. Thus, a finding that one significant portion of a school system is officially segregated may well be the predicate for finding that the entire system is a dual one, necessitating the imposition upon the school authorities of the affirmative obligation to create a unitary system throughout.20
Keyes then was consistent with earlier cases requiring a showing of official complicity in segregation and limiting the remedy to the violation found; by creating presumptions Keyes simply afforded plaintiffs a way to surmount the barriers imposed by strict application of the requirements. Following the enunciation in the Detroit inter-district case, however, of the
controlling principle of school desegregation cases, the Court appeared to move away from the Keyes approach.21 First, the Court held that federal equity power was lacking to impose orders to correct demographic shifts
not attributed to any segregative actions on the part of the defendants.22 A district court that had ordered implementation of a student assignment plan that resulted in a racially neutral system exceeded its authority, the Court held, by ordering annual readjustments to offset the demographic changes.23
Second, in the first Dayton case the lower courts had found three constitutional violations that had resulted in some pupil segregation, and, based on these three, viewed as
cumulative violations, a district-wide transportation plan had been imposed. Reversing, the Supreme Court reiterated that the remedial powers of the federal courts are called forth by violations and are limited by the scope of those violations.
Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’24 The goal is to restore the plaintiffs to the position they would have occupied had they not been subject to unconstitutional action. Lower courts
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.25 The Court then sent the case back to the district court for the taking of evidence, the finding of the nature of the violations, and the development of an appropriate remedy.
Surprisingly, however, Keyes was reaffirmed and broadly applied in subsequent appeals of the Dayton case after remand and in an appeal from Columbus, Ohio.26 Following the Supreme Court standards, the Dayton district court held that the plaintiffs had failed to prove official segregative intent, but was reversed by the appeals court. The Columbus district court had found and had been affirmed in finding racially discriminatory conduct and had ordered extensive busing. The Supreme Court held that the evidence adduced in both district courts showed that the school boards had carried out segregating actions affecting a substantial portion of each school system prior to and contemporaneously with the 1954 decision in Brown v. Board of Education. The Keyes presumption therefore required the school boards to show that systemwide discrimination had not existed, and they failed to do so. Because each system was a dual one in 1954, it was subject to an
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.27 Following 1954, segregated schools continued to exist and the school boards had in fact taken actions which had the effect of increasing segregation. In the context of the on-going affirmative duty to desegregate, the foreseeable impact of the actions of the boards could be used to infer segregative intent, thus satisfying the Davis-Arlington Heights standards.28 The Court further affirmed the district-wide remedies, holding that its earlier Dayton ruling had been premised upon the evidence of only a few isolated discriminatory practices; here, because systemwide impact had been found, systemwide remedies were appropriate.29
Reaffirmation of the breadth of federal judicial remedial powers came when, in a second appeal of the Detroit case, the Court unanimously upheld the order of a district court mandating compensatory or remedial educational programs for school children who had been subjected to past acts of de jure segregation. So long as the remedy is related to the condition found to violate the Constitution, so long as it is remedial, and so long as it takes into account the interests of state and local authorities in managing their own affairs, federal courts have broad and flexible powers to remedy past wrongs.30
The broad scope of federal courts’ remedial powers was more recently reaffirmed in Missouri v. Jenkins.31 There the Court ruled that a federal district court has the power to order local authorities to impose a tax increase in order to pay to remedy a constitutional violation, and if necessary may enjoin operation of state laws prohibiting such tax increases. However, the Court also held, the district court had abused its discretion by itself imposing an increase in property taxes without first affording local officials
the opportunity to devise their own solutions.32
Efforts to Curb Busing and Other Desegregation Remedies
Especially during the 1970s, courts and Congress grappled with the appropriateness of various remedies for de jure racial separation in the public schools, both North and South. Busing of school children created the greatest amount of controversy. Swann, of course, sanctioned an order requiring fairly extensive busing, as did the more recent Dayton and Columbus cases, but the earlier case cautioned as well that courts must observe limits occasioned by the nature of the educational process and the well-being of children,33 and subsequent cases declared the principle that the remedy must be no more extensive than the violation found.34 Congress enacted several provisions of law, either permanent statutes or annual appropriations limits, that purport to restrict the power of federal courts and administrative agencies to order or to require busing, but these, either because of drafting infelicities or because of modifications required to obtain passage, have been largely ineffectual.35 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none passed both Houses.36
Termination of Court Supervision
With most school desegregation decrees having been entered decades ago, the issue arose as to what showing of compliance is necessary for a school district to free itself of continuing court supervision. The Court grappled with the issue, first in a case involving Oklahoma City public schools, then in a case involving the University of Mississippi college system. A desegregation decree may be lifted, the Court said in Oklahoma City Board of Education v. Dowell,37 upon a showing that the purposes of the litigation have been
fully achieved—i.e., that the school district is being operated
in compliance with the commands of the Equal Protection Clause, that it has been so operated
for a reasonable period of time, and that it is
unlikely that the school board would return to its former violations. On remand, the trial court was directed to determine
whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past [de jure] discrimination had been eliminated to the extent practicable.38 In United States v. Fordice,39 the Court determined that Mississippi had not, by adopting and implementing race-neutral policies, eliminated all vestiges of its prior de jure, racially segregated,
dual system of higher education. The state also, to the extent practicable and consistent with sound educational practices, had to eradicate policies and practices that were traceable to the dual system and that continued to have segregative effects. The Court identified several surviving aspects of Mississippi’s prior dual system that were constitutionally suspect and that had to be justified or eliminated. The state’s admissions policy, requiring higher test scores for admission to the five historically white institutions than for admission to the three historically black institutions, was suspect because it originated as a means of preserving segregation. Also suspect were the widespread duplication of programs, a possible remnant of the dual
separate-but-equal system; institutional mission classifications that made three historically white schools the flagship
comprehensive universities; and the retention and operation of all eight schools rather than the possible merger of some.